Plaintiff v TRANSPORT ACCIDENT COMMISSION

1. The plaintiff came to Australia as a refugee from Iraq in 2012.
2. His wife in Iraq had died in tragic circumstances in 2012. The plaintiff said that as a result of this he suffered from some depression when he first came to Australia , for which he received treatment. He said that by about 2014 he was no longer experiencing depression or mental health issues.

1. On 10 July 2018, two days before the motor vehicle accident, he attended his general practitioner with a sore left shoulder, and an x-ray and ultrasound of the left shoulder was arranged, which was undertaken on 13 July 2018. This showed some bursitis of the left shoulder, and the plaintiff said in evidence that he had had some shoulder pain from driving between Cobram and Melbourne frequently.
2. The plaintiff otherwise had no relevant medical history.
3. Despite a note in Dr Menz's report that the plaintiff had pre-existing neck and back pain, I have not found any medical evidence of neck or back pain, and the same is not reported by his general practitioner.

1. On 12 July 2018 the plaintiff was driving on Station Road in Deer Park. He said the traffic was heavy and was moving at about 60 kilometres an hour.
2. His vehicle was rear-ended. He said it was a heavy impact and that he felt a jolt. Photographs show damage to both vehicles involved in the collision. He said his vehicle was written off but the airbags did not deploy.
3. Although the police were in attendance almost immediately and an ambulance was called, the plaintiff declined to go to hospital. He said he thought at that stage that he was all right. He was driven home by a friend.

1. Two days after the accident, on 14 July 2018, the plaintiff attended his general practitioner complaining of neck and back pain. A CT of his cervical and lumbar spine on 16 July 2018 showed no fracture but bone spurs at C6/7. An MRI on 23 July 2018 concluded as follows:

Left paracentral disc protrusion at C6/7 appears recent in nature and mildly indents the left ventral cord without compression with suspected impingement upon the left ventral C7 nerve rootlet. No underlying cervical myelopathy evident. No significant foraminal narrowing identified. No cervical cord abnormality otherwise evident.

1. Thereafter the plaintiff says he continued to be in constant significant pain.
2. On 3 August 2018 he said his pain was so severe that he presented at the Northern Hospital, where he was given medication and sent home.
3. On 17 August 2018 he consulted pain specialist Richard Sullivan, who recommended he continue with analgesia.
4. On 7 September 2018 he consulted Professor Teddy, a neurosurgeon. There is no report from Professor Teddy in evidence, but it appears Professor Teddy did not recommend surgical intervention.
5. On 5 October 2018 he saw neurosurgeon Ivan Bhaskar. Dr Bhaskar also did not recommend surgical intervention. The plaintiff underwent a left C7 nerve root injection on 31 October 2018. He said this did not make any real difference to his pain.
6. In November 2018 he again attended the Northern Hospital for pain relief.
7. On 20 November 2018 he had an MRI of the cervical spine. The conclusion of that investigation was:

Multi-level disc osteophyte complexes noted within the cervical spine as described. Please note the weightbearing examination is extremely difficult to interpret due to motion associated artefact. The flexion weightbearing study is non-diagnostic. Within the limits of the study, no gross alteration is seen on weightbearing. The most significant disc is noted at C6/C7, which results in mild canal stenosis. There is the suggestion of mild edema within the cord at this level, which may represent an element of compressive myelopathy.[1]

1. A further MRI of June 4, 2019 showed no real change and concluded that there were:

Shallow left paracentral disc protrusion at C6/7 just contacting the cord. No signal abnormality. Neural foramina were patent at all levels.[2]

1. A further MRI on 8 December 2020 showed similar appearances with a shallow C6/7 bulge, low-grade degenerative disease at C4/5 and C6/7 with no high-grade foraminal stenosis.
2. On 21 May 2021, the plaintiff had nerve conduction studies. The nerve conduction studies are not in evidence. According to Dr Menz and Professor Davis, they did not show any neurological abnormality. I understand from this that there was no pathological finding of nerve impingement or impairment.
3. The plaintiff saw pain specialist Symon McCallum on 30 August 2012. The plaintiff said that he was told he was not suitable for a pain management program.
4. On 14 April 2022 the plaintiff had a further MRI after a second motor vehicle accident. No acute injury was identified, and a longstanding central disc bulge at C6/7 and disc osteophyte were noted. Normal cord signal and capacious neural foramina were noted. Subsequent MRIs on 5 September 2022 and 17 February 2023 have shown the same results.
5. On 14 June 2022 the plaintiff started to see psychiatrist Dr Nicholapillai for treatment and continues to consult him.
6. On 20 January 2023 the plaintiff had a C5/6 and C6/7 diagnostic branch block performed by Dr McCallum.
7. Other than orthopaedic and neurology reviews in October 2023 and neurosurgical review in January 2026, the plaintiff has had no further treatment.
8. He consults his general practitioner and psychiatrist, and is prescribed a number of medications. In his affidavit he said he took the following medications: carbamazepine, 100 milligrams, Lyrica, 300 milligrams, Mobic, 15 milligrams, and Panamax, 500 milligrams, all of those prescribed for treatment of pain; and psychiatric medications Duloxetine, 120 milligrams, Amitriptyline, 50 milligrams, and Prazosin.
9. He takes other medications which may be prescribed for pain, his psychiatric condition or both. The records do not make it entirely clear. These are: Endep, 50 milligrams, an antidepressant but a medication that is also used for pain; Epilim, 500 milligrams, an anti-convulsant which is also used for migraines; and topiramate, 25 milligrams, another anti-convulsant which is also used for migraines.

Plaintiff's affidavit evidence about work capacity

1. In his first affidavit dated 21 October 2022, the plaintiff said the day after the accident he had noticed increasingly severe neck pain and back pain, and had difficulty getting to sleep.[3] The pain continued and he had pain radiating down his left arm into his hand, causing his fingers to feel weak and numb.
2. By August, he said he was in quite a bad way. He was taking Lyrica and Endone, but the pain persisted. The nerve root injection did not make any noticeable improvement to his pain. Over the next couple of months his pain continued, and he had to attend the emergency department because of his high levels of pain.
3. He said in the aftermath of his accident he struggled to keep his fruit and vegetable distribution business operational. He said he was absent for an extended period due to pain, and his business quickly went backwards. He said, "During late 2018 I tried to venture into work on occasion. I very quickly found that I could not cope with my pre-injury duties due to my persistent neck pain."[4]
4. He said as a result he made the decision to sell his business in 2019 as he simply could not cope with his work. He said that as a result he began to experience depression and anxiety. He attributed this to his pain and the difficulty he had keeping his business operating after the accident due to pain.
5. He said he remained off work. He was restricted in a range of everyday activities, including lifting even moderately heavy items and any tasks that involved looking up, overhead or reaching for items from elevated levels. He said he struggled with activities that required pushing, pulling or stretching, or any repetitive use of his arms. He said keeping his neck bent forward and flexed such as when reading or using a computer or typing on a keyboard aggravated his neck pain quickly. He said the most frustrating thing was his inability to continue to work and that he would not be able to handle lifting and manual handling involved in dealing with fresh produce.
6. In his affidavit sworn 20 January 2026, he maintained the position from his earlier affidavit, which was that he had tried to venture into work on occasion but had not been able to cope due to persistent neck pain and sold the business as a result.[5]
7. In his affidavit of 2 March 2026, he said he pushed himself back to work in late 2018 and early 2019, and did perform some lifting, carrying, reaching, pushing and pulling tasks, but struggled and found his pain levels increased through the day and were difficult to manage. He said that ultimately the business was not viable and he sold it.[6]

Work capacity as recorded by medical practitioners

1. Neurosurgeon Ivan Bhaskar recorded on 5 October 2018 that since the accident the plaintiff was precluded from doing any of his normal activities of daily living, including walking, that he could not sit for too long and needed to stand up to walk or be more comfortable. Dr Bhaskar told the plaintiff that it would be better if he got back to a normal routine and work as soon as possible.
2. The plaintiff's general practitioner classified him as unfit for work from 6 August 2018.
3. In a report of 14 July 2022, psychiatrist Dr Nicholapillai has recorded that the plaintiff gave him a history of worsening neck pain following the accident, that his body was numb and that he still had difficulty moving his arm. He told Dr Nicholapillai that he used to pay $120,000 in tax and now had to rely on family and friends for support. He told Dr Nicholapillai that his business was finished.
4. He was sent for medico-legal assessment to Mr Rodney Simm, orthopaedic surgeon. Mr Simm recorded on 26 June 2019, that the plaintiff was running a fruit and vegetable business which was not profitable, and that he had sold his fruit and vegetable shop in January 2019 and done no physical work since then. Mr Simm recorded that the plaintiff said he could lift quite a heavy weight if required but this would cause pain, and that he avoided lifting more than 10 kilograms. He was not able to walk for any length of time supporting this weight. Mr Simm noted that following the motor vehicle accident the plaintiff struggled to cope with the physical demands of working in a shop and sold it.
5. Dr David Weissman, psychiatrist, in a report dated 31 July 2019, recorded that the plaintiff told him he was unable to return to his work because of his physical pain and injuries, and had to sell the business.
6. Dr Anthony Menz, orthopaedic surgeon, in a report dated 10 October 2023, recorded a history that the plaintiff ceased work on 12 July 2018 and had not resumed any work duties since.
7. Professor Davis, neurosurgeon, recorded a history on 20 November 2024, that the plaintiff was off work for perhaps two months, when he tried to go back to work after the accident he was unable to manage because of pain. He recorded a history that the plaintiff was just doing supervisory activities, nothing physical, and wanted to get rid of the shop. He sold the fittings and has not worked since 2018. He recorded that the plaintiff said he rarely drove a car.
8. Mr Ash Moaveni, orthopaedic surgeon, in his report dated 28 November 2024, recorded a history that the plaintiff had sold his fruit and vegetable shop in January 2019 and had not performed any paid employment since.
9. Dr Gregor Schutz, psychiatrist, recorded a history in December 2024 that the plaintiff was not working and has had no paid work at all since the accident, that he was trying to work but could not. He confirmed that prior to the accident the plaintiff had no psychiatric history, including depression or anxiety. He recorded that the plaintiff was able to shower, dress and use the toilet but rarely cooked, and did no hobbies, including driving, weights or soccer. He recorded that the plaintiff said he rarely drove a car due to pain and numbness, and that he was an anxious driver when he did drive. He recorded that the plaintiff said he struggles to go for a walk.
10. Dr Meena Mittal, pain specialist, recorded a history on 19 January 2025 that since the injury the plaintiff had been unable to return to work and had had to sell the shop, and that he had been unable to work since the date of the accident.

1. In his evidence the plaintiff said he came forcibly to work. He clarified this and said, "I would force myself to go to the shop just to see my business, to see my hard work, to see everything. I would force myself to go there to see what's happening."[7]
2. He said "I wasn't working, like, you know, I didn't work, but I was going to the shop. I would go to my shop."[8]
3. He said he had told Dr Menz that he was not working, because he was not working.[9] He said, "I tried to work but I couldn't"[10], and "I tried to work - I tried to work but I did not work, I could not work."[11]

1. The Court was shown video surveillance taken on 7 October 2018 at Shop 1, 70 Kingsway Drive, Lalor.
2. That video starts at 8.31 am and shows the plaintiff unloading some boxes of vegetables, which appear to be capsicums, from a trolley. He is looking both up and down with his neck, and using both arms and hands. He sorts through the vegetables. He bends over to pick up an empty box and puts vegetables into the box. He pushes the trolley. He turns his head from side to side at 8.54.
3. He drives his car, reversing out. At 11.45 he gets out of his car. He drinks from a bottle tilting his head back. At 12.48 he gets into his car. At 13.10 he is shown in another shop. He walks freely and without any noticeable limp. He gets in and out of his car without any noticeable difficulty. He gets some fuel.
4. At 13.36 he is back at his shop. He uses his phone, holding it at waist level and bending his head down to look at it. At 13.38 he can be seen walking to his car moving freely, swinging both his arms in a natural movement, stepping down from the kerb without noticeable difficulty. He ducks his head in a natural movement to get into the car.
5. There is nothing in the video footage that to an observer would indicate that the plaintiff is in any obvious pain or has any restriction of movement in any body part.
6. This video was taken two days after he presented to Dr Bhaskar, to whom he said he could not do any of his normal activities of daily living, including walking. To Dr Bhaskar he described left neck pain and shoulder pain, and that the whole of his left upper and lower limbs hurt. He described constant pain in the neck, upper and lower limbs, with occasional right-sided symptoms similar to the left and associated back pain. He was noted to have a normal gait but a lot of give way weakness in his upper and lower limbs such that a proper examination was not possible. I understand this to be a sudden giving way of a muscle under pressure in response to an examination. There was no evidence of any such giving way in the video.
7. After being shown this video and asked whether he was at his shop from about 8.30 am to around 2 pm, the plaintiff said, "Yeah, it's my shop. What am I going to do? I'm going to go there."[12] He was asked whether the video showed him working. He said he stood there and "overlooked" the business.[13] He did not lift boxes of potatoes.

1. The plaintiff was shown video taken on 8 October 2018.
2. This video started at 8.47 am. The plaintiff wore a Hi Vis vest and carried bags of what appeared to be onions to put on the front display. He lifted quite large bags of onions with one hand. He walked without any obvious impediment. He turned his head freely. He reached overhead with his right arm to close the boot of his car. He got in and out of his car without obvious difficulty. He used his left arm to close the car door, reaching behind his body. He used the cash register in the shop. He can be seen gesturing freely using both hands and arms. At one point he uses his left arm to reach behind himself in what appears to be a motion to hitch up his trousers. That is at 13.31.
3. It was put to him that as at 8 October 2018 he was operating a business. In response he said that he was getting robbed, that people were stealing everything, and that he was going to the shop to make sure it was working so that he could sell it because he was losing. He said, "I had to go there. Even if I was dying and someone is slaughtering me, I would go to my business to make - to look over my business. I had to."[14]
4. It was put to him that the video demonstrated no restriction on his neck or left shoulder. He said, "I had pain but I had to come to work. It's my money that is being stolen."[15]
5. He was shown a further video taken on 8 October 2018. In this video the plaintiff can be seen walking down a street at about 11.42. At 12.38 he is walking on the street holding his phone in his left hand and looking down at his phone. At 12.46 he exits a butcher and walks out holding his phone in his left hand.
6. He said that after the accident his neck is "always down" and that he cannot look up or lift his neck.[16]

1. The plaintiff was shown video surveillance taken on 9 October 2018 at 8.56. This is also taken out the front of the shop in Lalor.
2. In that footage he can be seen walking around the outside of a truck. He is walking freely without restriction, his arms clasped behind his back. He opens his car door and bends down to put something in it. He can be seen peeling and eating what appears to be a mandarin using both hands. At 11.59 he gets into the car with another person he described as an interpreter. The plaintiff is driving.
3. At 13.07 he returns his car to the shop. He gets out of the car without any obvious difficulty. He turns around to speak with the interpreter. He then goes behind the cash register and appears to be putting items into bags for customers and lifting bags of fruit onto the counter. These bags are shopping-sized bags and are not full. He picks up a bag with his left hand and hands it to the customer. The video finishes at 13.35. He appears to still be behind the register.

1. The plaintiff was then shown a video of 10 October 2018 which started at 8.17 am.
2. The plaintiff is in a Hi Vis vest. He can be seen walking outside his shop and over to his forklift while on the phone. He walks quickly and without any obvious difficulty. He could be seen bending over near the steering wheel of the forklift. He walks quickly back to the shop. He gestures freely with both arms.
3. At 8.31 he exits the shop again. He walks to the forklift. He bends over and appears to be looking under the steering wheel while trying to move the steering wheel. He returns to the shop. He can be seen dragging a two-level trolley backwards and then turning it around. The trolley has what appears to be large, perhaps 20-kilogram bags, of potatoes and smaller perhaps 5-kilogram bags of onions as well as other items on it. He walks backwards with the trolley for a few metres and then returns to the shop. He exits the shop in the company of another man. He is holding his phone and gesturing freely with both hands. The other man then unloads some boxes onto the trolley, which is then removed by the plaintiff.
4. At 8.42 he returns to the forklift and bends down to move something in the foot well. At 8.44 he can be seen removing boxes from the bed of a truck and bending down to put them underneath the front display. The boxes are full, though it is not obvious what is in them. He picks up a large bag of potatoes or onions that looks to be about a 20-kilogram bag and bends to put it under the display. He moves a number of large green vegetables, perhaps cabbages or cauliflowers, and unloads a number, about eight or 10, of what appear to be whole watermelons. He bends down and straightens without any obvious difficulty.
5. After completing the unloading he smiles and engages in conversation. He appears to move freely and without any obvious discomfort. He gestures with both arms and moves up and down the gutter without obvious difficulty. At 8.52 he can be seen moving his head from side to side and looking down.
6. At 9.01 he exits his shop carrying a coffee in his left hand. He bends down and picks up something from the ground. At 9.04 he goes behind the cash register. At 9.23 he exits the shop pushing a trolley. He sorts through some vegetables on the front display and puts them in boxes in the trolley.
7. At 9.28 he goes to the car and opens the boot. He can be seen loading something at the boot. At 9.29 he can be seen carrying a large box of green vegetables in the shop. He walks quickly. I note that there is a trolley there which he does not use. He gestures with both hands. He carries a fruit box of apples from the car to the trolley in front of the shop. He carries a box of what appears to be oranges to the front display from inside the shop. He manoeuvres a large six-level trolley out of the way and pushes another smaller trolley into the shop. The large trolley requires a bit of a shove to get it moving. He then unloads a box of vegetables or fruit from the large trolley.
8. At 9.36 he goes to his car and bends over to retrieve something from the foot well of what appears to be the front passenger seat of the car. He lifts out a large sealed box. He places it on the fifth level of the six-level trolley over shoulder height at about head height using both arms. His neck is tilted back as he lifts the box. He removes from the car a full large foam box of what appears to be onions and places it on the large trolley.
9. At 9.37 he repeats this with another foam box of what appears to be onions and places them over shoulder height on the fifth level of the trolley. He removes a third foam box and attempts to place it on the second level of the trolley. This requires him to bend over. Another box is in the way and he reaches with his left arm to move the other box while balancing the box he is holding with his right arm on the edge of the trolley shelf. He attempts to manoeuvre the foam box into position using his left arm. He then straightens up and lifts the box up and takes it inside the shop.
10. At 9.38 he can be seen walking back to the shop from his car, reaching down and behind with his left hand to scratch his leg. He then pulls the now fully loaded large trolley into the shop, including manoeuvring it over what appears to be the doorway lip, where the trolley visibly jolts. At 9.39 he exits the shop, bends to the ground to pick up some cardboard, puts the cardboard in a shopping trolley along with four boxes of apples and moves the trolley into the shop. Again, he manoeuvres the trolley into the shop without visible difficulty, including over the door lip.

1. The plaintiff was shown video from 24 October 2018 that starts at 7.30 when he drives up to his shop.
2. He gets out of his car wearing a Hi Vis jacket and reaches behind his back with his left hand to get what appear to be his keys to the shop out of his back pocket. He then returns the keys to his left-hand back pocket.
3. At 7.31 he uses his left leg to kick a plastic tray of the kind seen in bakeries out of the way . The tray appears to be full of bread. He then wheels a double-layer trolley loaded with two very large sacks and four smaller sacks of what appear to be potatoes. He wheels the six-level trolley out. This is loaded with large bags of onions, oranges, what appear to be potatoes and eggplants, and other boxes of fruit and vegetables that cannot be identified.
4. He bends down and drags the tray of bread back into the shop using his right arm and leaning his left hand on the corner of the front display. He lifts what appears to be 10-kilogram bags of potatoes with one hand. He lifts what appears to be 5-kilogram bags of oranges with one hand. He lifts what appear to be 5-kilogram bags of onions with one hand, using both his right and left hands. He unloads a tray of capsicum, eggplants and other unidentifiable items.
5. He bends over to look at some paperwork and then bends down to put it on the floor, bending his knees and reaching forward. He stands up without any apparent difficulty. He lifts what appears to be a 20-kilogram sack of onions with one hand and puts it under the display.
6. By 7.34 the trolley is completely unloaded and he moves it to his car. He then proceeds to bend into his car and remove full boxes of fruit and vegetables as well as other items, including toilet paper or hand towel. At 7.34 he puts a box on the sixth level of the trolley over both shoulder and head height without any obvious difficulty. It is not clear what is in the various boxes. Some appear heavier than others.
7. He bends down to place boxes on the lowest level. There is no evident change in his gait or the way in which he functions in that each item is manoeuvred with similar apparent ease. He puts four boxes on the very top level overhead height, four boxes on the fifth level over shoulder height. When the trolley is completely full it contains 21 boxes and two large packets of toilet paper or hand towel.
8. There are still boxes in his boot, which he transports directly into the shop. He stacks these boxes on top of each other at the cash register, requiring him to lift them higher each time. Eventually the stack is four boxes high, requiring him to reach over shoulder height. He bends forward into the boot of the car to retrieve additional boxes, which he takes, one in each hand, directly into the shop. He drags the fully laden trolley into the shop.
9. At 7.39 he has completely unloaded his car and he gets in to move it. It has taken him five minutes to fully unload his car, load a six-level trolley and manoeuvre the trolley inside the shop.
10. In response to this footage the plaintiff said "I take my medication and I have to work. I have to work. It's my hard work, my money, my business. I'm losing it in front of my eyes. I have to work."[17]
11. At 8.48 on the same day, 24 October 2018, the plaintiff is seen operating a forklift. He manoeuvres the forklift in what could only be described as an expert fashion through a busy car park, operating the steering wheel with his left hand and the controls with his right hand. He can be seen looking up and down and over his shoulder as he reverses. He lines up the tines of the forklift into the pallet, and picks up a large and seemingly quite unstable load of cabbages or cauliflowers and onions. He bends over and looks behind him as he manoeuvres through what appears to be a very tight space. As he drives he moves the load up and down to avoid obstacles such as a car that is parked in his way.
12. He leans over and looks behind him toward the left at 8.50 without any obvious difficulty. He gets out of the forklift to survey the space he has to manoeuvre.
13. He gets back in at 8.52, gripping onto the forklift with his left hand before climbing back in. After many head checks and careful manoeuvring he is able to put down his load and move the forklift, and then move to pick up the tricky load from a better angle.
14. At 8.57 he gets out of the forklift and appears to almost jump down. He moves very quickly around the forklift at 8.58. He can be seen bending down and picking up some straps, throwing the straps with some force. I presume these are straps used to secure a load, and he is throwing them over the load, though that is obscured from the vision
15. At 9.00 he is back on the forklift, manoeuvring quickly and expertly around the car park to pick up the load of onions and cabbage or cauliflower. At 9.01 he can be seen walking, but it is not clear when he got out of the forklift.
16. In response to the video the plaintiff said that he takes the medication, "So you want me to be dead, like, you know, or cut off my neck. For seven years I'm living on medication. That's all. My whole life is destroyed. I'm destroyed."[18]
17. He said, "At that time I probably - I pushed myself to go operate the business and I had some more energy, but now I'm just - it's all gone. I don't have anything left in me."[19]
18. He reiterated that he wanted to work and that if he could work he would work.
19. Further footage at 14.34 on 24 October 2018 showed the plaintiff behind the cash register sitting down using his phone and holding a drink in his left hand. At 14.46 he can be seen in his car and walking around at a different location.

1. The plaintiff was shown footage from 25 October 2018. The footage started at 7.24 am.
2. On this occasion he undertook similar activities to those described earlier. He unloaded a full six-level trolley, moved a tray of bread with his foot and then dragged it into the shop whilst he was in a bent position.
3. At 9.30 he unloaded numerous boxes from his car using a single-layer trolley. This required him to bend into the boot, pick up the boxes or trays, and bend over to put them on the trolley. He closed the boot of his car by reaching overhead with his left arm.
4. At 11:00 he can be seen talking to a man driving his forklift, and at 11.01 the plaintiff is driving the forklift. The plaintiff can be seen manoeuvring the forklift and unloading pallets of drinks from a truck. He unloads three large pallets of drinks.

1. The plaintiff was shown footage taken on 26 October 2018.
2. He was shown getting into his car, reversing the car near the shop and unloading boxes from the car in much the same fashion as previously described. He bends into the car, straightens up, removes about seven boxes using both hands and two large bags of spring onions.
3. Later that day, at 12.53, he can be seen on the phone holding the phone in his left hand and gesturing vigorously with his right arm and hand. At 12.55 he uses the forklift to move a large pallet of boxes. The boxes are so high they obscure his front vision, requiring him to move his head to look around the load and use his mirrors. He unloads the forklift and returns for the next load. He is clearly a very competent forklift operator.
4. He was then shown footage from 26 October 2018 at 9.38. In that footage he is shown standing talking to someone, walking and getting into his car. At 12.11 he reverses out in his car. At 12.22 he can be seen standing near a truck having a conversation with someone who is out of shot. He bends down to pick up a pallet and carries a large wooden pallet with another man into the shop.
5. At 12:54 he is seen driving the forklift. He loads a large pallet of boxes onto the truck. He said this was coconuts that he was returning. He can be seen leaning either side in order to manoeuvre the pallet onto the truck. He is off the forklift by 13.01, having loaded two pallets of coconuts onto the truck. At 13.21 he is on the phone holding the phone in his right hand and gesturing with his left hand. He is moving his hand and arm freely, opening his fingers, making a pincer grip and rotating his hand and arm.
6. The conversation persists for quite a while. At about 13.35 he is still on the phone whilst holding his open wallet in his left hand without apparent difficulty. The call appears to conclude at 13.38. He uses both hands to sort through and put papers into his wallet, and at 13.48 he can be seen engaging in conversation with two men, leaning his left hand on a trolley whilst running his right hand over his head.
7. I have gone into extensive detail about what is shown in the 2018 video because it is a very important part of the defendant's attack on the plaintiff's credit. I note here that as well as watching the video in court, some of it played at double speed, I have rewatched all the video at normal speed.
8. The plaintiff said at one point that the video showed that he could not lift his head or neck. He said that he had to do what he had to do; that he had lost everything, and that he had to try. He said he used to drive 12 hours and go to the gym non-stop, and asked rhetorically, "You're going to now take into consideration this 10, 15 minutes, half an hour thing?"[20]
9. As I understand the thrust of the plaintiff's evidence, it was that from the day of the accident he has been in pain in his neck and all down his left side. That pain is constant, albeit variable, and has not improved since the time of the accident, notwithstanding the medication and various treatments he has had.
10. The pain is variable in the sense that it is sometimes more debilitating but it is always there. The pain means he could not work and cannot work. He attended his workplace at the time shown in the video, but this was because he had no choice as he was being robbed.
11. It was difficult to understand his evidence at times because he maintained that he had not worked since the accident, and then also said that he had had no choice but to work. Doing the best I can, I understand his evidence to be that he was not able to work in the way he had previously worked but that he had had no choice but to attend the workplace from time to time because it was his business and he was being robbed.
12. His evidence that he took his medication seemed to be a suggestion that, on medication, he was able to undertake some tasks, but that was contrary to other evidence that the medication did not make much, if any, difference to his pain.
13. He said that after the accident and because he could not work, he accumulated $600,000 in debt, and that as a result the government confiscated his business. He said that his business was worth $4,000,000 but he sold it for just $40,000 for the value of the fridges and the lease.

1. I turn now to consider later video footage. On 16 January 2023 the plaintiff was shown a short video of him driving his car with a woman, possibly his wife. I understand that the plaintiff was married for a period after the motor vehicle accident and that that marriage has subsequently ended.

1. On 13 February 2023 the plaintiff was shown video of him walking to what was apparently a medical appointment. At 13.21 he is shown limping slightly as he departs the medical appointment. The limp appears to have resolved by 13.23, as he walks away from the doctor's office and approaches his car.
2. At 16.32 he can be observed walking without a limp. He drives, and at 18.48 he appears to be in a van. He appears to have driven the van as he is in the driver's seat, but there is no footage of that, and he gets out of the driver's seat.

1. On 8 March 2023 the plaintiff is shown driving his car.

1. On 22 March 2023 the plaintiff is shown walking with no limp. He approaches his doctor's office at 11.46, and he has a noticeably increased limp as he walks towards the offices of Precision, the medical practitioners that he was seeing.
2. At 12.06 he walks away with no limp. He gets in and out of his car frequently. He goes to a van. He gets a box. He goes to the boot of his car and has something in a box which looks like fruit or vegetables.

1. On 20 April 2023 there is video footage of the plaintiff in a coffee shop talking to somebody. He is sitting with his legs crossed at his ankles, using his hands freely.

1. On 15 October 2024 there is video footage of the plaintiff getting out of a taxi and limping as he goes towards a doctor's appointment. At 16.50 he gets back into a taxi.

1. On 18 October 2024 at 13.55 there is video footage of the plaintiff getting out of a taxi at the doctor's office. He is noticeably limping. At 14.43 he exits the doctor's office. He is noticeably limping, taking extremely short steps with a very distorted gait. At 14.57 he get into a taxi.
2. At 15.42 he gets out of the taxi and crosses a road. Initially he is seen in the video footage limping slightly, but as he crosses the road the limp resolves and he walks to his own car without limping. He gets into his car and drives away at 15.45. At 15.59 he meets up with a truck in a laneway and collects what appears to be a box of food. He opens the boot of his car and can be seen bending over to lower the box of food into his car. As he walks to and from his car and the truck he is not limping.
3. He said that he met his friend, who gave him things to eat, including fruit and rice. He said that on this occasion it was perhaps just fruit. When asked whether he cooked the food he was given he said "Sometimes. You want me to die from starvation? I am human."[21]
4. The plaintiff said that sometimes the pain in his neck "just shoots down all my side and I'm all numb. Like, it's all numb. And sometimes when it's all numb, I can't walk, like it's, I have, I struggle to walk. My back is fine, there's nothing wrong with my back."[22] He said "Sometimes when [the pain] shoots down on my body, I feel imbalance, I lose my balance. I'm not faking it, it's just I feel the imbalance, I don't have my balance. It's out of my hands. Sometimes I'll be walking okay and I will feel just I've, my balance is not right and it happens."[23]

1. The plaintiff's counsel submitted that there was no contradiction between the plaintiff's evidence and the video surveillance footage. The plaintiff had said in his first affidavit that he was absent for an extended period and then struggled to keep business operational due to pain. He admitted he had tried to venture to work on occasion, but found he could not cope.
2. Counsel submitted that the footage shows mere snapshots of him doing things like driving a forklift for a short period, lifting some boxes "we would submit slowly and with both hands for a limited period"[24] and wheeling a trolley to set up a display, and that, compared with his work capacity before the accident when he was travelling to Shepparton and Cobram regularly, I ought to find that he has been truthful about his work situation; that he returned to work for a period, but has not worked since.
3. Plaintiff's counsel submitted I could be satisfied that he has not worked since because there has been very extensive surveillance of the plaintiff and, if he had been working, he would surely have been caught doing so.

1. The 2018 surveillance showed the plaintiff over the course of four consecutive days, 7, 8, 9, 10 October 2018, and three subsequent consecutive days, 24, 25, 26 October 2018.
2. In each of those surveillance videos the plaintiff is seen driving his car, getting in and out of his car without apparent difficulty, walking without a limp and without any apparent difficulty.
3. In some of those videos the plaintiff is shown lifting boxes, bending, twisting, pulling and pushing. I do not accept that he moves slowly or unpacks boxes slowly. In fact, to my observation, he goes about his tasks in an efficient and on some occasions quite speedy manner. In some of those videos the plaintiff is seen driving a forklift, to my observation, with a great deal of skill and efficiency.
4. Although the plaintiff said on one occasion that the video showed he could not lift his neck, in fact I consider the video shows him lifting his neck on a number of occasions and undertaking a number of tasks that he has said he cannot do or that are difficult for him, including over-shoulder and overhead reaching, pushing, pulling, lifting, looking up and down, holding his head in the sort of position it would be in if he were using a computer whilst looking at his phone for extended periods, bending down and lifting quite heavy items, including large sacks of potatoes and onions.
5. It is not at all apparent from any of the video that he avoids using his left hand or arm and on a number of occasions he uses his left hand and arm because it appears more convenient to do so, even though his right hand is free; for example, putting his keys in his back left pocket.
6. There was simply no indication in any of the 2018 surveillance footage, which spanned many hours over many days, that the plaintiff had any restriction, limitation or pain. This footage was taken just days after he had attended Dr Bhaskar and presented a completely different picture of his pain and level of function, and was taken between attendances at the Northern Hospital for pain.
7. It is trite that one cannot observe pain by looking at a video. The absence of obvious signs of pain - a grimace, a wince - does not mean that a person is not in pain. Similarly, I accept that sometimes a person is required to undertake a task even if it causes that person pain; there is simply no other option. I also accept that, as we often hear in this Court, a person might undertake a task and pay for it later in the sense of having more pain afterwards or the following day. I accept also that one might be able to perform an otherwise painful task when that person has medication on board, bringing the pain to manageable levels. I accept also that one might have spasms that require acute treatment in the way of analgesia and might prompt an attendance at A&E. However, the evidence of the plaintiff is that the pain was constant, severe and debilitating at all times, albeit variable.
8. Making allowances for all these matters, I cannot reconcile the plaintiff's evidence about the extent of pain he was and continues to be experiencing with the surveillance evidence. The fact that there are consecutive days of attendance at work, that the attendance is not for a quick 10 minutes here or there but stretches over many hours each day, the absence of any obvious limitations on any activity all cause me to consider the plaintiff's evidence about his degree of pain and restriction is not reliable.
9. The video surveillance from 2023 is more limited in what it shows. The plaintiff's evidence, supported by the attendance records on his general practitioner, is that during COVID he moved to New South Wales for a period and that may account for some of the gap between 2018 and the resumption of surveillance in 2023. In any event, the 2023 surveillance shows the plaintiff driving multiple times on each of the days he was surveilled getting in and out of the car without apparent difficulty. This suggests that driving is not the rare event as he has said.
10. On 13 February 2023 and 22 March 2023 the plaintiff approaches and departs a doctor's office. He walks with a slight noticeable limp. That limp appears to resolve as he moves away from the doctor's office.
11. In the footage of 18 October 2024 the limp is particularly noticeable, especially after exiting the doctor's appointment. At that point the plaintiff is nearly hobbling prior to getting into a taxi. It is noticeable that after he exits the taxi the limp is significantly reduced and, by the time he reaches his own car, has resolved entirely.
12. I understand the plaintiff says that the limp is caused by numbness he experiences combined with a shooting pain that causes him to feel an imbalance. However, the fact that the only occasions in all the video surveillance where an obvious limp is noticeable coincides with his attendance at and departure from medical appointments causes me to treat this explanation with scepticism.
13. In my experience, a common opportunity taken by defendants to obtain surveillance is before and after attendance at medical appointments because these are occasions where the whereabouts of a plaintiff is known in advance. Given that his former solicitors ceased acting for him after the 2018 video surveillance was provided to them, I infer that the plaintiff was likely aware that he was being surveilled and was likely aware that he may be surveilled during his attendances at medical appointments.
14. I do not accept that in all the occasions when he was filmed the sudden onset of this shooting pain causing an imbalance occurred only when he was attending medical appointments. The more likely explanation is that the plaintiff was exaggerating his symptoms on these occasions because he thought he may be observed by surveillance. This causes me to draw an adverse inference in relation to the plaintiff's credibility and the reliability of his evidence more generally.
15. I note that the video in 2023 and 2024 was taken within weeks or months of attendance on medico-legal practitioners where the history he provided of his restrictions was significantly at odds in what was seen on the video.
16. There are other matters that cause me to consider the plaintiff's credit adversely and conclude that he is not reliable. He said he had used a forklift maybe five or six times prior to the motor vehicle accident in Australia, and had not used one in Iraq. If he had not used a forklift in Iraq - and I can see no reason why he would not be honest about that - I cannot accept that he used a forklift on only a handful of occasions prior to the motor vehicle accident.
17. If that evidence is indeed true, then he must have developed an extraordinary proficiency in the period after the accident and before the video surveillance footage was shown. His line of work would mean that any forklift driving was likely to be intermittent and only for short periods, loading and unloading pallets from trucks into his shop. As shown in the video, it would likely amount only to 10 minutes or so at a time.
18. I cannot accept he developed the degree of proficiency seen on the video over what, on his evidence, would amount to only about an hour of experience. The number of times he used a forklift is not relevant to anything other than his credit, but it indicates to me a lack of honesty or transparency with the court.
19. The plaintiff was also not transparent about his business arrangements. He was silent in his affidavits about the existence of another business, a fruit and vegetable shop or indeed two shops, in Wollert set up by his company but, he said, run by others.
20. The plaintiff was not transparent about the circumstances around the demise of his business. It was clear that he sought to attribute all the problems with his business to the motor vehicle accident.
21. Even accounting for the language barrier, although I note here that the interpreter was of a very high standard and was extremely helpful, I cannot accept that he accumulated $600,000 in debt between the date of the accident in July 2018 and his decision to sell the business which he said accounted for his attendance at the workplace in October 2018, namely that he was attending on those occasions so that the business was functioning in order for him to sell it; nor do I accept his evidence that his business was worth 4 million and yet he was forced to sell it for $40,000.
22. His evidence that he was forced to attend the workplace because people were robbing him was difficult to understand. It was not clear who was robbing him, how they were robbing him or why they were robbing him, and it is certainly not apparent that this was caused or was a result of the motor vehicle accident.
23. It is unlikely that the motor vehicle accident was the sole reason, if it was a reason at all, for the failure of the plaintiff's business and its subsequent sale.
24. Even giving the plaintiff the benefit of the doubt in relation to his history to doctors - that is, assuming in his favour that he had a genuine belief that what he was doing in October 2018 was not work but was merely an attempt to work, and that his evidence that he has done no paid work since January 2019 is true, and that therefore there is no credit issue arising from his evidence about his work to doctors in affidavits and in Court - I am still left with my own observations of the plaintiff from the video which do not accord with his presentation to doctors at the time or afterwards, and his evidence about the degree of pain and restriction that he experiences, nor with his presentation in Court.
25. To my own observation in Court, he moved freely and without restriction at times, particularly when distracted and not being specifically asked about his physical condition. For example, when he was being cross-examined on his financial records he appeared to be physically quite comfortable. He was asked about this, for example, when he moved his arms over his head, and he said that as he sat in the witness box he had severe pain and numbness all down his left side.
26. At other times in Court he was visibly wincing and moving in a very restricted fashion. It was difficult for me to accept that his condition varied so rapidly, as it appeared to do so in Court.
27. As a result of my findings in relation to the video evidence I do not accept the reliability of the plaintiff's evidence about the degree and extent of his pain and the degree and extent of his restrictions.
28. Other matters were also put to the plaintiff in relation to his credit, in particular:

(a) his tax returns, which suggested that the plaintiff was not making a great deal of money prior to the motor vehicle accident;

(b) that his earnings in fact increased in the year after the motor vehicle accident, that is the 2018 financial year, strongly suggesting that he had worked more than he said;

(c) his company tax returns, which showed a small loss rather than a profit prior to the motor vehicle accident; and

(d) his financial records, which showed significant sums of money going into and out of his bank account between July 2020 and January 2023.

1. The plaintiff gave various explanations for the deposits of money into his bank accounts. These were variously that they represented:

(a) a gift to him from a friend or relative;

(b) a loan;

(c) the repayment of a debt from a debt someone owed him;

(d) the payment to him for one of his vehicles which he had sold;

(e) a gift for referring a client to an NDIS provider;

(f) a payment from his cousin which he was to pass on to someone else, being Andrew;

(g) a payment from someone which he was to pass on to someone else for transfer to Iraq; and

(h) a payment from someone for his benefit in Australia in exchange for the equivalent amount being paid by his family to that person's family in Iraq.

1. The defendant sought that I draw an adverse inference, saying that it beggared belief that the amount of some $450,000 would be deposited into his account during a period when he said he was not working, particularly as some of the entries were identified as wages.
2. The plaintiff said that, given the extensive surveillance undertaken, nearly 200 hours over three years, if he was doing any work it would have been discovered. He said he did not know why those entries were labelled wages, and he had no control over what someone else identified a payment as.
3. I tend to accept that submission. While I was not entirely satisfied with the plaintiff's explanations in relation to the deposits of money into his account, I do not conclude that they arose from manual labour, which would likely have been discovered, and have insufficient evidence to conclude that they arose from some other form of work.
4. The other credit issues relating to his and his company earnings do not significantly impugn his credit, but go to the overall picture I formed of the plaintiff which is that he has, perhaps quite genuinely, come to the view that everything was entirely rosy in his life before the accident and ascribes the change in his circumstances entirely to the consequences of his accident. However, even if that is the true belief of the plaintiff, it is not an accurate reflection of reality. There must have been difficulties with the business prior to the accident to have reached a point shortly after the accident where the business was unsustainable.
5. In summary, I am not satisfied that the plaintiff is a reliable witness in relation to his restriction and pain.

Did the motor vehicle accident cause a physical injury?

1. As has often been said, my findings in relation to the reliability of the plaintiff does not mean that I entirely discount his evidence but that I look elsewhere for corroboration. The difficulty, however, for the plaintiff is that, although there was a finding of an injury, being a disc bulge at C6/7, it is the experience of pain that is the ongoing cause of the consequences he claims.
2. It is often the case that the radiology, particularly when it comes to impairments of the spine, does not describe or confine the consequences for an individual. A person with significant findings on radiology might not be symptomatic. A person with minor findings on radiology may be highly symptomatic.
3. It is a matter of general agreement amongst the doctors in this case that the radiological findings do not account for the consequences that the plaintiff alleges.
4. Professor Davis notes that there are no objective neurological signs and no objective acute radiculopathy.
5. Mr Simm describes a whiplash syndrome which he ascribes to the plaintiff. A whiplash syndrome is based primarily on the plaintiff's subjective complaints of symptoms.
6. Professor Davis diagnosed a whiplash associated disorder with prominent neck pain.
7. Dr Mittal diagnosed neck pain secondary to whiplash disorder.
8. Dr Moaveni diagnosed a soft tissue injury leading to neck pain and radiculopathy. Dr Menz diagnosed a soft tissue injury which he says has since resolved.
9. Associate Professor Ghahreman concluded that the plaintiff is clearly struggling with a chronic multi-regional pain and its associated physical, psychological and functional consequences.
10. There was discussion and debate about who had or had not seen the video surveillance footage. Certainly Dr Moaveni had seen the 2023 video footage, as he commented on it, though it was not clear he had seen the 2018 footage and, given his lack of commentary on it, I infer that he had not.
11. However, regardless of the diagnoses made by the various doctors, I am required to consider for the purposes of this application the consequences of the injury sustained in the motor vehicle accident.
12. The doctors variously opined about the plaintiff's limitations based on their clinical examination of him, their review of the medical records, including radiology and the history the plaintiff provided.
13. I cannot be satisfied that the history provided is accurate nor that his presentation on clinical examinations accurately reflected his condition at the time of those examinations.

1. I accept that the motor vehicle accident caused a physical injury, being a left paracentral disc protrusion at C6/7. I will come to my findings on what the consequences of that injury are shortly.

Did the motor vehicle accident cause a psychiatric injury?

1. Turning to the claimed psychiatric injury that the plaintiff also relies on, Dr Weissman, psychiatrist, diagnosed:

(a) an accident related mild chronic adjustment disorder;

(b) an accident related mild post-traumatic stress disorder with anxiety symptoms;

(c) a premorbid - that is unrelated to the accident - traumatisation and bereavement complex; and

(d) symptoms and features of a somatic symptom disorder.

1. He considered that on purely psychiatric grounds he did not think that the plaintiff had any incapacity for work.
2. Gregor Schutz initially diagnosed the plaintiff with a moderate adjustment disorder with depressed mood and a likely post-traumatic stress disorder with nightmares, flashbacks and panic attacks. He considered the post-traumatic stress disorder was entirely attributable to the accident, and he initially considered that the plaintiff had no psychiatric capacity for work.
3. After reviewing the surveillance footage, Dr Schutz had concerns about the reliability of the plaintiff's history, noting for example that the plaintiff had said he rarely drives and sometimes cannot remember where he left his car and did not engage in social interactions. He said he continued to consider that the plaintiff had significant mood, anxiety and post-traumatic stress conditions but of a lesser magnitude than claimed and he could not quantify that. He could not determine whether the plaintiff had a psychiatric incapacity for employment.
4. The plaintiff's treating psychiatrist, Dr Nicholapillai, diagnosed a post-traumatic stress disorder with co-morbid major depression and anxiety symptoms. He considered pain management crucial for his mental state. I infer from that that he considered that a significant component of the plaintiff's psychiatric condition was his experience of the pain.

Findings on causation of the psychiatric injury

1. It appears that a series of unfortunate events befell the plaintiff both before and after the motor convenient accident. These include the death of his wife in Iraq in tragic circumstances, the accumulation of significant debt to his business, the apparent theft from his business, and an arson attack on his Wollert shop which destroyed that business and other items, including his forklift.
2. All of these are understandably likely to have taken a significant toll on the plaintiff's mental health and that in turn may have affected his physical health, including his perception of pain. However, that does not mean that the motor vehicle accident is a cause of his mental health conditions.
3. To the extent that I can be satisfied that his mental state arises from the motor vehicle accident, his diagnosis is of a mild post-traumatic stress disorder.
4. His other psychiatric diagnoses are primarily related to his experience of pain or his reaction to his changed circumstances in relation to the loss of his business. I am unable to determine the extent to which these arise from the motor vehicle accident because I am unable to be satisfied of the extent of pain and the consequent restrictions the plaintiff experiences.

1. Where the primary consequence is said to be pain and restrictions caused by pain, the credibility of the plaintiff is absolutely central.
2. As set out above, I do not accept the reliability of the plaintiff's evidence, which causes me to look at other evidence to support the claimed consequences. However, the medical opinions are so impugned by the unreliability of the plaintiff's evidence and history that I cannot determine what the physical consequences of his injury are.
3. I am not satisfied that symptoms arising from mild post-traumatic stress disorder cause consequences that are severe and meet the test for serious injury under subsection (c).
4. I want to make it clear that I am not suggesting that the plaintiff has no pain, no restrictions, and no psychiatric impairment. However, I am unable to determine what the extent of that pain, those restrictions and that psychiatric impairment is.
5. As I have already said, the video surveillance is completely at odds with the plaintiff's evidence, his presentations to doctors and his presentation in this Court. This means that I would have to speculate about what the actual extent of the consequences are for him.
6. I cannot draw inferences from the medical evidence. The radiology does not establish a basis for his claimed symptoms, and the medical evidence is impugned by the plaintiff's unreliability. This is not a case where, even if I were to make adverse findings about the reliability of the plaintiff's evidence, I could nevertheless be satisfied that the objective evidence provides support for the significance of the claimed consequences.
7. To the extent that it is said I can be satisfied that the plaintiff meets the test, at least in part because of the very significant amount of medication he takes, I cannot be so satisfied. There is no medical explanation as to why his condition now, which requires so much medication, has substantially deteriorated since the 2018 video footage, the 2023 footage, or the 2024 footage. His presentation in those videos is at odds with his requirement for such significant doses of medication.
8. The plaintiff bears the onus of establishing that the consequences of the motor vehicle accident meet the test of more than significant or marked to the extent of being at least very considerable. Because of the findings I have made in this case, he has not discharged that burden.
9. Accordingly, the plaintiff's claim is dismissed.

1. The plaintiff's application is dismissed.
2. The plaintiff pay the defendants costs of the proceeding, including reserved costs, on a standard basis, to be assessed by the Costs Court in default of agreement.