Nouri v TAC [2026] VCC 251

1. The plaintiff swore affidavits on 27 April 2022,[4] 2 July 2025,[5] and 26 February 2026.[6]
2. In the first affidavit, the plaintiff set out how she had been born in 1980 in Afghanistan, was right-handed and married with five children. She had migrated to Australia in 2006 and thereafter had been a stay-at-home mum.
3. The relevant transport accident occurred on 15 July 2019 ("the accident"), when a vehicle driven by the plaintiff was t-boned at an intersection. She said that because of the accident she had injured her spine and then subsequently developed burning pain in the right side of her neck, with numbness in the right hand and fingers, and worsening lower back pain "which was much worse than the back pain I had experienced previously".[7]
4. The plaintiff then set out the history of treatment and what she described as pain and suffering consequences. The pain and suffering consequences focused not only on the plaintiff's pain but also on limitation for activity such as walking, sitting, standing, undertaking housework, cooking, cleaning, sleep, sex life and being involved in family life.
5. About her pre-existing back condition, the plaintiff said as follows:

"25. I had pain in my lower back before the accident that was at times managed with hands-on therapy. In February 2019, I was referred to surgeon Mr Edis about my back. I had a CT scan and MRI on my back, and Mr Edis said I should have an injection but I do not believe I had it. My back pain was bad at times and it was radiating down my right leg, but I was still able to do my household chores, aside from tasks that required me to lift. I was able to be on my feet doing housework for a short period before I would need to rest, and then try again. There was no significant impact on my sex life. My sleep was not too bad. I was able to manage my condition at the time mostly by taking Panadol. I found that exercise would help to ease the back pain, but I was limited to walking around a few hundred metres.

6. 26. The pain that I have in my lower back radiating to my right leg is much worse than any pain I experienced prior to the accident. My ability to sit, stand and walk has been further reduced because of the accident. I avoid bending and twisting where possible. While I had some restrictions prior to the accident, I am now more restricted given my increased pain, particularly with respect to my housework, my sleep, and my sex life as discussed below. I need to use a back brace now, which I did not need to use before the accident, so that I can increase my standing, sitting and walking tolerance. I try to walk as much as possible as part of my treatment, but I am very limited because of my poor walking tolerance. On a good day, I can walk my son to school but then I need to rest before I come home. My back hurts after I walk my son to school, and when I do, I need to rest afterwards due to my increased pain."[8]
7. In her second affidavit, the plaintiff described treatment since the first affidavit. That treatment had included injections into her low back. She described a referral to an orthopaedic surgeon and a discussion about having fusion surgery. The clear emphasis in the second affidavit was on the plaintiff's low back condition, although she did explain how she had undergone C5 nerve block injections in her neck on 9 December 2024, which she said had improved her pain.[9]
8. In the second affidavit, overall, the plaintiff said she continued to be troubled by the pain and restrictions outlined in her first affidavit. She said that whilst she had issues with her lower back before the accident, she strongly felt that the issues in her lower back had been made worse by the car accident, and that the new injury to her neck had added further pain and restriction to her spine.[10]
9. Curiously, in her second affidavit the plaintiff made no mention of any symptoms in the right shoulder or of any impairment caused by a separate right shoulder condition.
10. In her third affidavit, the plaintiff said the condition in her back and neck had remained largely unchanged. But in this affidavit, she did say something about her right shoulder. She gave evidence how she had been concerned about neck pain, radiating into her right shoulder, and had undergone an ultrasound of her right shoulder on 2 December 2025, before she underwent a cortisone injection into the right shoulder. The cortisone injection had helped to reduce some of the pain in her right shoulder, but she said the pain remains and that: "The pain in my neck and back has remained the same as it was prior to the injection".[11]
11. In the third affidavit the plaintiff did not describe any impairment consequences from the right shoulder, apart from a broad comment about pain and the injection. She said that her accident-related injuries, "particularly the injuries to my neck and back continue to have a significant impact on many aspects of my life".[12]

1. The plaintiff was cross-examined about the content of her affidavits but also, more specifically, about the contents of clinical records. The plaintiff was cross-examined about clinical records created by a general practitioner, Dr Anna Piesiewicz-Bialek ("Dr Bialek"), who had treated the plaintiff before the accident, as well as clinical records from Mr David Edis, an orthopaedic surgeon who had treated the plaintiff before the accident.
2. Pausing here, there is no report from Dr Bialek. There is also no report from Mr Edis, although there was tendered by the defendant two letters from Mr Edis to Dr Bialek dated 15 March 2019 and 23 April 2019.[13]
3. In cross-examination, the plaintiff essentially accepted that the clinical records from Dr Bialek and Mr Edis were accurate and recorded symptoms in her lumbar spine before the accident.
4. Pausing here, in the witness box the plaintiff gave evidence through an interpreter. She was a somewhat compliant witness during cross-examination and essentially agreed with most, if not everything, that was put to her by experienced senior counsel for the defendant. I make some allowance for likely language and cultural barriers and the perhaps mismatch with experienced senior counsel for the defendant. Although, nevertheless, that does not detract from the fact that the plaintiff did not, in her affidavits, quibble with any of the contents of the clinical records which had been exchanged prior to the matter proceeding in Court.
5. The short point is that the clinical records suggest that the plaintiff's low back condition was much worse than what she had said in her affidavits. For example, as part of a general practitioner management plan summary prepared by Dr Bialek and dated 25 October 2018, there was described a lumbar disc bulge, 10/10 pain and prescription of Celebrex and Panadeine Forte.[14]
6. The clinical records from Dr Bialek reveal several attendances before the accident for back pain and right leg sciatica. For example, on 5 October 2018 "right leg pain mostly sciatica" and a prescription of Celebrex and Panadeine Forte was recorded.[15] There were further attendances throughout late 2018 and into early 2019. On 7 March 2019, Dr Bialek recorded the plaintiff was still in pain, and it was noted the plaintiff should make an appointment with a specialist.[16] On 24 May 2019, Dr Bialek's notes record back pain.[17]
7. At the same time, throughout late 2018 to early 2019, the plaintiff was referred for physiotherapy. The notes of the physiotherapist, Ms Deanne Barnard,[18] were put to the plaintiff in cross-examination, including a note of 13 March 2019 about ongoing pain in the lower back, that the plaintiff was seeing a specialist soon and had purchased a massage bed to assist with her pain.[19]
8. Then we get to the notes from Mr Edis, commencing with an attendance with the plaintiff on 15 March 2019, his recommendation for a CT guided right L5 nerve root injection, and a diagnosis of a right L5 radiculopathy and L4-5 spondylolisthesis and stenosis.[20]
9. About the referral to Dr Edis, the plaintiff was taken to a patient history form completed on 15 March 2019 before the attendance on him and how the plaintiff had described pain in her back which was getting worse and always there.[21] She was taken to a pro forma document in which she had indicated, amongst other things, that bending forward made the pain worse, sitting for more than 30 minutes or standing for more than 5 minutes made it worse, as did walking for more than 10 minutes or driving for more than 20 minutes. She noted that lying down and massage relieved the pain and was undergoing physiotherapy.
10. Then in a document in which the plaintiff was asked to score her pain - with 10 being the worst pain, the plaintiff indicated that she had pain at a level of 10 in both the back and the leg. She also completed an Oswestry 2.0 questionnaire, describing the pain intensity as very severe and similar restrictions for standing, sleeping, lifting, walking, sitting, sleep and impairment of sex life.[22]
11. Having conferred with the plaintiff, Mr Edis wrote to Dr Bialek on 15 March 2019,[23] noting a history of six months of increasing low back pain and right sided L5 radicular symptoms. He recorded the plaintiff as being limited to about 10 minutes of walking before needing to stop and sit to get relief. It was said she was getting some night pain but had not been disturbing her sleep too badly, and was then taking Panadol Osteo. It was recorded that the plaintiff can do most usual tasks but she did find lifting particularly difficult.
12. Mr Edis wrote to Dr Bialek again on 23 April 2019.[24] At that time, he had reviewed an MRI scan of the lumbar spine which he said demonstrated a far more likely lateral disc at L4-5 that was causing impingement of the L4 nerve root, rather than L5. He noted she had not yet had the injection, so he had given her a referral for an L4 nerve root injection. He said, "Hopefully that will give her the relief that she is after and she can potentially avoid surgery".[25]
13. During her oral evidence, when the clinical records had been put to her, she accepted that her indication of 10/10 was very, very painful.[26] She accepted that the back and leg pain at that time was always there and that activity such as bending, amongst other things, made it worse.[27]
14. It was then put to her that the pain for which she had attended Mr Edis continued and that the low back pain and leg pain continued really up to the time of the accident, and she said "Yes".[28]
15. Next, the plaintiff was questioned about any aggravation from the accident in circumstances where she already had 10/10 back pain and pain down the leg. It was put to her that the pain could not get any worse than that, and she said "So I had severe pain after the accident".[29]
16. Pausing here, the plaintiff's response that she had severe pain after the accident does not really engage with the fact that, objectively, she had severe pain before the accident in her low back.
17. Next, the plaintiff was cross-examined about a medico-legal examination with Mr Gary Speck and the clinical examination and observations by Mr Speck. In particular, the plaintiff's description of restricted neck movement on formal examination, but apparently demonstrating a greater range of movement in an informal setting.[30] The plaintiff did not really have an explanation for what Mr Speck had recorded.
18. Interrupting the narrative again, the plaintiff frequently turned her neck while in the witness box, for example to speak to the interpreter, without any apparent restriction or need to avoid turning her neck because of pain or tightness. That does raise as an issue whether there might be some understandable psychological reaction at play, and about that the plaintiff gave oral evidence that she had just started to see a psychologist, noting that there is no report from that person.[31]
19. In re-examination, the plaintiff was asked about back pain before the accident and said her whole back was painful and burning, but then indicated when asked that the pain was located in the lumbar spine. The plaintiff was then asked about that pre-existing low back pain and how it compared now to what it was before the accident. The plaintiff said "It got worse, worse my shoulder and also my neck".[32]
20. The plaintiff was then taken to the pain survey she completed before attending Mr Edis. She was asked whether her ability to walk now was 10 minutes or more or less. She said, "I'm walking, still I'm walking because walking is helping me and my lower back pain, so I have to walk".[33]
21. The plaintiff was then taken to her answer on the questionnaire that driving for 20 minutes made the pain worse, and she said that now if she drives for more than 20 minutes the pain is worse.[34]
22. The plaintiff was re-examined about driving and said she was fearful that somebody would hit her, noting that she does not rely on any separate psychiatric consequence. She then said when driving the pain in her shoulders is getting worse, it was very hard to hold the steering wheel, and she is also having pain in her neck.[35]

1. As I mentioned earlier, I make an allowance for the plaintiff's background and the fact that she gave evidence through an interpreter, and to some extent the mismatch with experienced senior counsel.
2. Having said that, the cross-examination fairly confirmed what was contained in the clinical records, namely that the plaintiff had back pain at a level of 10/10 before the accident, bad enough to require regular general practitioner attendance, physiotherapy and a referral to an orthopaedic surgeon with a recommendation of an L4 nerve root injection in the context of a discussion about possible surgery or other treatment options should that injection not provide lasting relief.
3. Further, objectively before the accident, the plaintiff was impaired for a range of daily activities such as standing, walking, sitting, lifting, housework and with some impact on sleep and her sex life.
4. Based on the pre-existing radiology, any injury to the lumbar spine must be considered as an aggravation injury, even if broadly the plaintiff can rely upon injury to the spine. The plaintiff ultimately underwent an L3-L5 medial branch block on 6 March 2025,[36] and then radiofrequency neurotomy of the lumbar spine on 4 June 2025.[37] Although what is not clear on the evidence is whether those procedures are effectively the treatment that Mr Edis recommended several months before the accident.
5. At the risk of repetition, the plaintiff bears the evidentiary onus to identify the additional impairment that she says is caused by the accident. About that, again as already noted, there is no report from Dr Bialek and only the items of correspondence from Mr Edis to Dr Bialek.
6. To fast forward a little, Mr Speck is the only medico-legal examiner who has set out in detail an analysis of the evidence of pre-existing symptoms in the consideration of what injury was suffered in the accident, and more broadly for a context of what additional impairment flows from the accident. Having done so, he said the plaintiff's presentation was consistent with non-organic physical findings and a somatic symptom disorder.[38] He said a soft tissue sprain may have occurred in the subject transport accident to the neck and low back as well as chest.
7. He noted that the pre-existing condition in the low back was providing symptoms over the two years beforehand. He said the identified changes on medical imaging were consistent with constitutional change in the low back, and that there were now a number of non-organic physical findings.[39] He noted that the radiological imaging must always be interpreted in the context of reliable history given, and reproducible physical findings.[40]
8. Overall, Mr Speck said that the condition related to the accident may have provided difficulty and incapacity in the first 6-12 weeks but no longer provided restriction.[41]
9. In a moment, I shall set out the balance of the medical evidence, but in something of a spoiler alert, I consider the detailed and careful analysis by Mr Speck to be compelling and accurate.
10. In addition, the thrust of the plaintiff's affidavit and oral evidence was that any real impairment consequences were caused by the injury to the spine. While she did describe pain in the right shoulder and the more recent cortisone injection, she did not provide any clear evidence of any impairment consequences that were caused or attributed to the right shoulder injury.
11. I shall return to express a formal conclusion at the end of a summary of the rest of the evidence, but it should be clear at this point that I do not consider that the plaintiff sufficiently discharged her evidentiary onus to identify what, if any, additional impairment consequences were caused by the accident from one or the other of her claimed serious injuries.

1. The plaintiff tendered a letter from Peninsula Health dated 28 July 2021,[42] which recorded her presentation there after the accident. There was no specific past history documented. The plaintiff had seatbelt bruising and tenderness over the lower abdomen and chest. She was treated with analgesia and a CT of her neck and chest, abdomen and pelvis. It was said that formal imaging revealed no acute traumatic injuries and she was discharged for general practitioner follow up. It was reported that full recovery would have been expected from a soft tissue injury and no long-term sequalae were expected.[43]
2. The evidence from Peninsula Health, limited as it is, is consistent with the opinion from Mr Speck.

1. Mr Mohammed Awad is a neurosurgeon who examined the plaintiff for medico-legal purposes and provided a report to her solicitors on 27 August 2021.[44]
2. Mr Awad noted the plaintiff's main pains were in the lower back, neck, right shoulder and right leg. He recorded lower back pain as then constant between 7 to 8/10, the plaintiff had a limitation for walking and sitting, and her sleep was affected. Mr Awad also recorded a description of right leg pain and of constant neck pain at 7 or 8/10, as well as right shoulder and arm pain.
3. About past medical history, Mr Awad recorded that was significant for previous known low back issue, but that had been significantly exacerbated by the road traffic accident.[45] He went on to say the plaintiff had a history of a pre-existing lumbar spine condition, managed conservatively, but that it was likely that had been significantly exacerbated by the accident, demonstrated on the radiology findings.[46]
4. About the radiology, Mr Awad described an MRI scan of 17 June 2020, which was in fact tendered by the plaintiff.[47] It does not appear that he had the earlier MRI scan arranged by Mr Edis, and reported on 14 April 2019.[48]
5. Next, Mr Awad reported for a second time to the plaintiff's solicitors on 29 January 2026.[49]
6. It is unclear exactly what material was provided to him for the purpose of that assessment, other than he made reference to Mr Speck's report, so I assume that means he had at least that report and perhaps some of the source documents. In any event, having reviewed the plaintiff and whatever material was available to him, he said he thought the plaintiff was suffering a true organic condition, being aggravation of cervical and lumbar spondylosis, but there may be a chronic pain component to it as well. He then said he understood the plaintiff had a history of chronic lower back pain before the accident "However, this was minimal and only required some physiotherapy, whereas now she requires more extensive treatment and is much more symptomatic by way of this accident".[50]
7. In the context of the other evidence and where he clearly had available Mr Speck's report, it is hard to understand how Mr Awad could simply dismiss the pre-accident history as minimal. That affects the weight to be attached to his report.

1. Mr Ash Moaveni is an orthopaedic surgeon who examined the plaintiff at the request of the parties and provided a report dated 7 September 2021.[51]
2. About the pre-existing lower back, Mr Moaveni recorded the plaintiff had pre-existing lower back pain and had undergone an MRI scan on 14 April 2019. He noted the plaintiff denying any significant issues about her neck or shoulders before the accident and that she "also maintains that her lower back pain was significantly aggravated" by the accident.[52]
3. Mr Moaveni recorded the plaintiff's then symptoms largely relating to neck pain and lower back pain. He went on to diagnose a right shoulder supraspinatus tendinosis and partial thickness tear with subacromial impingement, cervical spine spondylosis and L4-5 spondylolisthesis with bilateral L4 nerve root compression.[53]
4. Mr Moaveni went on to note the plaintiff's description of pre-existing pain in the lumbar spine, but that she maintained that her functional capacity had worsened after the accident.[54] He then expressed opinions about the plaintiff's ongoing treatment needs.[55]
5. There was a limitation in the weight to attach to Mr Moaveni's opinions. First, his opinion is obviously now substantially out of date for an assessment of current impairment consequences. Secondly, his opinions about the low back were largely based on the reliability of the subject description by the plaintiff of significant worsening of lower back pain after the accident. As should already be obvious, that limits the weight to attach to his opinion about the low back.
6. About the claimed right shoulder injury, Mr Moaveni's opinion supports a diagnosis of an injury to the right shoulder including a tendon tear. But, as mentioned earlier, it is one thing to have a radiologically demonstrated or diagnosed condition, but another to have impairment consequences from the 'injury'. In that regard, Mr Moaveni blended the low back, neck and right shoulder together when he said that "each injury on its own...has impacted these areas".[56]

1. Dr Shahroze Khan is a general practitioner at the Broad Oak Medical Centre who has treated the plaintiff since 14 May 2020. Dr Khan first provided a report dated 10 June 2021.[57]
2. In the first report, Dr Khan recorded the plaintiff describing that since the accident she had severe cervical spine, lumbosacral spine and right shoulder pain. Dr Khan recorded the plaintiff saying that she had pre-existing lower back pain "which got aggravated after the MVA".[58]
3. Dr Khan noted a referral for pain management to Dr Ali Kian Mehr.[59]
4. Next, Dr Khan reported again on 24 November 2025[60] with a history then of severe neck pain, lower back pain and bilateral shoulder pain. Dr Khan set out the referral to the various specialists, diagnosed aggravation of cervical and lumbar spine disc degeneration, bilateral shoulder tendinosis and bursitis, osteoporosis and osteopenia, as well as chronic pain syndrome with associated insomnia and cognitive impairment.[61] The pain condition was described as chronic and disabling with a poor prognosis.
5. Dr Khan's reports are supportive but the weight to attach to them is reduced because of the disadvantage of attending the plaintiff after the accident, seemingly without the benefit of the full clinical picture, or the notes from Dr Bialek (who treated the plaintiff before the accident at the Narregate Medical and Dental Centre).

1. Dr Gavin Weekes is a pain specialist to whom the plaintiff was referred for treatment. He reported to the plaintiff's solicitors on 25 March 2024[62] noting he had seen the plaintiff on one occasion only on 27 November 2023. He said the plaintiff reported that her chronic lumbar and cervical pain began following a motor vehicle accident in July 2019.[63] He said he recommended a diagnostic procedure of bilateral L3 to L5 medial branch blocks.
2. Dr Weekes said that the plaintiff had not reported any significant lower back or neck pain before her motor vehicle accident.[64] That is a history that I do not accept as accurate.
3. To provide a report, Dr Weekes was provided with correspondence from Mr Edis and asked to comment whether the accident had changed the nature and extent of the plaintiff's lumbar spine injury. He answered by saying the correspondence from Mr Edis revealed that the plaintiff did have significant radiological findings and symptoms of chronic lower back pain before the accident. But, Dr Weekes then just dismissed that evidence by saying it was certainly his impression after speaking to the plaintiff and her family that the motor vehicle accident did pose a significant exacerbating factor.[65]
4. I am not sure what Dr Weekes meant by speaking to the plaintiff and her family to arrive at a conclusion that the accident did pose a significant exacerbating factor, if in fact he had only attended the plaintiff on one occasion and obtained no history of pre-accident symptoms. I assume he means that his treatment recommendations were based on the history given to him. That may be appropriate for treatment but does not assist in an assessment of the situation before and after the accident.

Dr Ali Kian Mehr, rehabilitation medicine and neurophysiology specialist

1. Dr Ali Kian Mehr is a rehabilitation medicine and neurophysiology specialist who has treated the plaintiff. He reported to the plaintiff's solicitors for the first time on 23 September 2021.[66] At that assessment he noted right-sided neck pain, lumbar spine pain and recorded the plaintiff told him "that she had some pre-existing back pain, but it was aggravated after the accident".[67]
2. Dr Mehr had available the MRI scan of 14 April 2019. He then set out his diagnosis of aggravation of chronic pain condition in the cervical spine and chronic pain in the right upper limb which was referred, as well as chronic pain in the lumbar spine which was also an aggravation and radiation of pain into the right lower limb.
3. About the pre-existing back condition, he said obviously the plaintiff had some back pain before the accident but it was not as limiting.[68]
4. Dr Mehr reported again on 18 November 2025.[69]
5. In that report Dr Mehr set out the history since the earlier report, included a left C7 nerve root block, which was quite effective and relieved 50 per cent of the plaintiff's neck pain.[70] Dr Mehr also described the lumbar injections. Dr Mehr said that at review on 22 July 2025 the plaintiff had reasonable results with lower back pain and neck pain for the time being after the injections.[71]
6. Dr Mehr then repeated the diagnosis and described the prognosis due to chronic pain as being guarded.[72]
7. Broadly, on my assessment of the evidence, Dr Mehr did not have the full picture of the low back symptoms before the accident. There is also a blending of any impairment consequences across the several diagnosed injuries.

1. Dr Weekes practises at Precision Brain, Spine & Pain, as does Dr Mehr. In addition to reports from those practitioners, the plaintiff also tendered numerous items of correspondence from other experts attached to Precision Brain, Spine & Pain, as well as items of correspondence from Dr Weekes and Dr Mehr. Correspondence was tendered from Dr Akil, neurosurgeon; Dr Meena Mittal, pain physician and specialist anaesthetist; Dr Kilner Brasier, occupational and environmental medicine; and Mr Philip Sheard, orthopaedic and spinal surgeon.
2. I have considered all that evidence to the extent necessary but much of it is directed towards pain-management-type treatment that the plaintiff has had at Precision Brain, Spine & Pain. In fact, it could be said that the plaintiff has had a lot of treatment at Precision Brain, Spine & Pain for not much improvement, without being critical of them. It appears the injections provided some short-term relief but overall, there had been no improvement in the plaintiff's description of symptoms.
3. It is also clear that broadly the doctors at Precision Brain, Spine & Pain have been treating the plaintiff based on her description of the symptoms that she said was caused the accident, but with no full appreciation of the pre-existing situation. That is also not a criticism because for treatment purposes whether the plaintiff had symptoms before the accident is probably not relevant to them.

1. In respect to the lower back, the plaintiff clearly had a significant lower back condition before the accident and objectively was significantly impaired.
2. In that context, whether the accident caused the plaintiff to suffer an aggravation injury to the lower back is something of a moot point, because the evidence fails to identify the extent of any aggravation.
3. Regardless, I prefer Mr Speck's opinion that any aggravation to the lumbar spine from the accident was likely a soft-tissue injury and short-lived.
4. In respect to the claimed neck injury, the plaintiff may have also aggravated an underlying but asymptomatic neck condition. I accept she may have some neck pain that has required injections, which objectively appear to have reduced the plaintiff's level of pain. She certainly demonstrated no restriction for neck movement in the witness box. But where she was already significantly impaired by the pre-accident back condition, she has failed to discharge her evidentiary onus to establish any additional pain and suffering impairment consequences referable to the neck injury suffered in the accident.
5. In respect to the right shoulder, the plaintiff may have suffered an injury to her right shoulder. The plethora of treatment at Precision Brain, Spine & Pain has been directed principally to the plaintiff's neck and lower back. Whilst there is some evidence of a tendon tear on the radiology, it is trite to note that radiology does not equate to impairment consequences.
6. As mentioned, the plaintiff's second affidavit made no mention of any right shoulder symptoms at all. In the third affidavit the plaintiff described some radiating symptoms into the right shoulder and having an injection on 2 December 2025, which she described as helpful. But she then went on to say that the pain in her neck and spine had remained the same as before that injection. The tenor of the plaintiff's affidavit evidence is that it is the spine that is her major problem and not the right shoulder.
7. In other words, even if I accept that there is an accident-related injury to the right shoulder, the evidence is almost silent on any claimed impairment consequences apart from some level of pain, that was improved by the recent injection.
8. Next, the overall difficulty for the plaintiff is that many of the treating and medico-legal witnesses do not have the complete pre-accident picture. As has been said many times, the opinion of specialists is often only as good as the history, evidence and assumptions presented to them.
9. Therefore, leaving to one side my acceptance of Mr Speck's evidence that any aggravation to the lumbar spine was a soft tissue and temporary injury, at the highest, the plaintiff may have had some aggravation of the lumbar spine, and the development of some symptoms in the neck and right shoulder, but she has simply failed to discharge her evidentiary onus to identify any additional impairment and impairment consequences from the spine (whether that be an aggravation to the lumbar spine together with an injury to the neck) or right shoulder separately.
10. The failure to discharge her evidentiary onus means that I am unable to reach a conclusion that one or the other of the claimed conditions meets the serious injury threshold. The plaintiff may have symptoms in her spine and right shoulder that in isolation might not be trivial, but where she was significantly compromised by her pre-existing back problem, any additional impairment consequences from the accident are unable to be ascertained on the relaible evidence, or simply do not meet the "very considerable' threshold.
11. Therefore, for the reasons expressed, the application is dismissed.
12. The parties shall be invited to provide consent orders to give effect to these reasons.

[1] [2024] VSCA 254 ("Palmer")

[13] Defendant's Court Book ("DCB") 66 and 67