1. There was a hearing before me on 22 January 2025. Ms Pritchard gave oral evidence and was cross-examined. Mr Armin Drnda, Neurosurgeon, who assessed Ms Pritchard at the request of the TAC, also gave oral evidence and was cross-examined.[4]
2. In the months after the hearing, Mr Theodore, counsel for Ms Pritchard, and Mr Pinkstone, counsel for the TAC, provided written submissions further to the written submissions that were filed before the hearing.

The transport accident and the immediate aftermath

1. Police and ambulance officers attended the accident scene.
2. According to a Victoria Police Incident Report and other material in the Amended Joint Tribunal Book (Tribunal Book), the transport accident occurred on the morning of 17 November 2020. Ms Pritchard pulled into parking bays on the side of Taylors Road, Rowville, north bound, outside her workplace. It was a 50 kph zone. Ms Pritchard made a phone call. About a minute later a car travelling in the same direction drifted from its lane into the bay for parked cars and collided with the rear right hand side of Ms Pritchard's car, pushing it forward. There was moderate damage to both cars which were towed away.[5] The Tribunal Book includes photographs that show the damage to Ms Pritchard's car.
3. An Ambulance Victoria Patient Care Record states that the estimated force of impact was medium; that the estimated speed of the other vehicle was 30-60 kph and that the damage to Ms Pritchard's car was moderate. Among other things, Ms Pritchard denied any head strike, loss of consciousness or pain. The words 'no problem identified' appear in the section where any diagnosis would be recorded. The report indicates that Ms Pritchard was advised that she did not require hospital treatment, but she was advised to attend her GP or call 000 if there were any concerns.[6]
4. In a statement made in December 2022, Ms Pritchard said that immediately following the accident, she was shaking and in shock. She was experiencing pain in her neck which spread to the back of her head, as well as to her chest and right shoulder.[7] She consulted a GP at Rowville Health clinic. The doctors there were not her usual doctors but the clinic was conveniently located near her workplace. She continued to see those doctors in the days after the accident. They advised her to 'self-manage' the neck injury 'conservatively'.
5. Ms Pritchard said that she was experiencing constant pain in her neck which was sharper and more intense when she moved her head. She felt very stiff and strained and could not turn her head to the side due to the pain. There was no marking or bruising. Ms Pritchard said that a referral for imaging was 'not offered' to her even though she had enquired about it with the doctors. She took about a week off work though said that she wanted to get back to work and to a feeling of normality as soon as possible. She said that she lived on her own and had a mortgage and she felt she could not afford to be off work. She explained the delay in lodging her TAC claim form to confusion as to whether the accident was 'a WorkCover matter'.
6. Ms Pritchard said that her work involved some 'manual handling and weight bearing activities'. After the accident, her duties included helping clients in and out of beds or chairs and showering them. She said that she was taking longer to complete tasks and had to be extra cautious because the work would aggravate her ongoing pain. She would often go home in pain and would complain about it to her colleagues regularly. She said that the work also involved 'limited overhead activities', and this was where she was most restricted and what she really struggled with.
7. Ms Pritchard referred in her statement to a fall she had in or about October 2021:[8] see below.

1. Ms Kelly Aitken, the House Supervisor at the Disability Support House where Ms Pritchard was employed at the time of the transport accident, made a statement in December 2022. Ms Aitken did not witness the accident but attended in response to Ms Pritchard's call for help. She saw the damage to Ms Pritchard's car. Ms Aitken said that after the accident, Ms Pritchard 'eventually' returned to work as a Part-Time Direct Carer. Ms Aitken was her direct manager. She said she could recall Ms Pritchard complaining of neck pain 'on occasion' during her employment. She could recall 'on one particular occasion' suggesting that Ms Pritchard consider taking analgesics given the amount of pain she was complaining of.
2. Mr Shaun Pritchard, Ms Pritchard's son, made a statement in January 2024. Mr Pritchard said that at the time of the transport accident he was living at home with Ms Pritchard. He moved out in or about July 2021. His statement was expressly based on observations he made in the time after the accident while he was still living with her.[9] Before the accident, Ms Pritchard carried out 'most of the upkeep and maintenance duties' around the house independently, without his assistance. After the accident, he observed changes in her capacity. For example, she would vacuum for about five minutes before she would sit down and complain of neck pain and headaches. This was common for other daily activities like cooking and cleaning up afterwards. On occasion, she would attempt more strenuous activities like maintaining the garden or heavy grocery shopping. Mr Pritchard said that he recalled that on such occasions Ms Pritchard was often left 'incapacitated' in her bedroom for the remainder of the day, with complaints of headaches and neck pain. He therefore assumed responsibility for these duties while he was living with her. He observed her carrying out lighter activities, such as watering the garden or light grocery shopping. He did most of the heavier shopping, gardening and cleaning which had not been the case prior to the accident. He said he observed changes in Ms Pritchard's mood: she seemed less confident and outgoing which he attributed to her physical limitations.[10] Despite her daily complaints of pain, Ms Pritchard continued to work. She would often come home and complain that she was in too much pain to even move around that house and she would remain bedridden. He advised her to take time off work, but she insisted that she could not afford to and that she would try to manage her neck pain as best she could. Mr Pritchard expressed the opinion, which he said was based on the changes and behaviours he observed, that Ms Pritchard's capacity and tolerances for daily activities was significantly reduced. He attributed this to the injury she suffered to her neck as a result of the accident and he based this opinion on the repeated complaints she made to him at that time.[11]

1. I refer to the most important parts of Ms Pritchard's oral evidence below. I mention now that during cross-examination of Ms Pritchard, Mr Pinkstone referred to a document or an extract that he described as originating from an 'online screen' completed at the request of the TAC about a week after Ms Pritchard lodged her claim form, and therefore less than a month after the transport accident.[12]
2. Mr Theodore submitted that the online screen should be given very little if any weight. I deal with that submission later.
3. Ms Pritchard said she could not remember completing the screen but she did not deny doing so. Before Mr Pinkstone took her to the specific questions and responses recorded, she agreed that if she did complete the screen, she would have answered the questions truthfully and to the best of her knowledge at the time.
4. The questions and responses that Mr Pinkstone specifically put to Ms Pritchard were these:

Q1. Thinking about how you are today, how would you describe your ability to carry out your usual activities and roles? This includes activities at home, at work, and in your community, and responsibilities as a parent, child, spouse, employee, friend, etc.

Q2. Still thinking about today, to what extent are you able to carry out your everyday physical activities such as walking, climbing stairs, carrying groceries, or moving a chair?

Q3. Even at this early stage, how confident are you feeling that you'll bounce back (get past/overcome) this accident?

Q4. Do you have an idea of how long it might take you to recover from the transport accident?

Response You have already recovered, or you will recover in a few months

Q5. At this stage, would you agree or disagree that the treatment you are receiving is helping with your recovery?

1. Responding to Mr Pinkstone, Ms Pritchard said in relation to question 1 that the response 'Completely (able)' was given 'maybe' because she had returned to work and felt she had to say that she was at full capacity.
2. In relation to question 2, Ms Pritchard said that 'maybe' the response 'Completely (able)' wasn't true, because she was not able to carry out those tasks.
3. In relation to question 3, Ms Pritchard said that she could not recall giving the response 'Very confident'. And she did not agree with Mr Pinkstone that 'things were looking pretty good' for her at the time.
4. In relation to question 4, Ms Pritchard said that she did not recall responding in the way that had been recorded.
5. In relation to question 5, Ms Pritchard said it was correct that she was not receiving treatment at the time.

Relevant incidents before the transport accident

1. There were relevant incidents before the transport accident, including ones in which Ms Pritchard sustained injury. Mr Drnda summarised them in his report: see below.

Relevant incident after the transport accident

1. In the statement she made in December 2022, Ms Pritchard said that in or about October 2021, she suffered a fall while she was walking her dog. (She was evidently referring to the fall she had on 27 September 2021). Ms Pritchard said that the impact of the fall was minor in comparison with the transport accident. She had not returned to work since she had the fall. She said that (despite her best efforts and intentions) her neck pain had become unbearable. She had lately been experiencing shooting pains from her neck into her head. The pain was debilitating and could get so bad that she felt nauseated. Her neck condition had not improved with regular physiotherapy. She had now ceased physiotherapy due to lack of funding. She had recently begun taking Codeine for the pain.

1. Over many years, for reasons including convenience and the availability or non-availability of bulk billing, Ms Pritchard has consulted numerous doctors at several clinics. The Tribunal Book includes medical records from those clinics. To the extent necessary, I refer in these reasons to notes made by GPs in relation to the period immediately following the transport accident in November 2020 and the period immediately following the fall in September 2021.
2. Ms Pritchard consulted a GP mid-afternoon on the day of the transport accident (17 November 2020) and other GPs at the same clinic on 19, 21, and 23 November 2020.
3. Ms Pritchard consulted GPs on 29 September 2021, two days after the fall and various dates thereafter: see below in relation to the cross-examination of Mr Drnda.
4. In between 23 November 2020 and 29 September 2021 there are records for one consultation - on 9 July 2021. That concerned not Ms Pritchard's neck but an episode of 'epigastric [discomfort]'.
5. The TAC's decision to deny funding for physiotherapy was made after the TAC received a medical certificate by Dr Monika Patel dated 12 November 2021 and a letter by Ms Sheena Kirtane, physiotherapist, dated 3 December 2021.
6. Dr Patel recorded that she examined Ms Pritchard on 12 November 2021. She wrote that Ms Pritchard had a history of shoulder and neck pain 'post [transport accident] on [17 November 2020]' and 'was advised symptomatic treatment including pain meds, physiotherapy'.[13]
7. Ms Kirtane reported that she saw Ms Pritchard on 19 October 2021 after she had a fall on the road. Ms Kirtane said that she could 'confirm that [Ms Pritchard] reported only of left sided lower back pain and leg pain after the fall'. However, Ms Pritchard reported that she had been having neck pain and headaches well before the fall. The symptoms were related to the injury she sustained in the transport accident. She had been having neck pain and headaches since then. She had also had to take time off work intermittently since then due to her neck pain and headaches. Ms Kirtane said that Ms Pritchard had already spoken to the TAC about possible physiotherapy treatment for her neck but Ms Pritchard reported that she could not pursue treatment as it was emotionally overwhelming for her after the accident 'in regard to her injury and car damage'.[14] Ms Pritchard felt that she had emotionally recovered from her trauma related to the transport accident 'related issues' and would like to pursue physiotherapy for the physical injuries related to the accident, being neck pain and headaches.

1. Mr Hazem Akil, Neurosurgeon, assessed Ms Pritchard on 1 May 2023 at the request of her solicitors.[15]
2. Ms Pritchard told Mr Akil that when the transport accident happened, she was in a state of shock. She immediately felt severe, sharp pain in the back of her head. She saw a doctor near her workplace who diagnosed 'soft tissue injury' and gave her analgesia.[16] She recalled being off work for about a week and returned after that, with persistent pain. She continued to work with persistent pain until about October 2021 when she was walking her dog and fell which 'increased the intensity of her neck pain'.[17] She was unable to return to work. Ms Pritchard told Mr Akil that in numerous visits to her GP her symptoms were 'brushed off'. She did not commence physiotherapy until about 12 months after the transport accident. As at May 2023 (when Mr Akil saw Ms Pritchard), she continued to have persistent bilateral neck pain radiating towards both occipital sides and down towards both the scapular and subscapular regions. The pain was associated with shooting pain along her left shoulder and left lateral arm to the elbow and was associated with intermittent pins and needles in her left hand.
3. Mr Akil noted that Ms Pritchard 'did not have any previous history' and said (on the basis of his review of the GP's notes) there were 'no significant spinal complaints' prior to the transport accident.
4. Mr Akil recorded observations on examination, including severe restrictions of forward flexion of the cervical spine. He referred to a CT scan of the cervical spine done in May 2022 which, he said, provided clear evidence of spondylosis: see further below. He concluded that in the transport accident Ms Pritchard 'clearly had a bad whiplash mechanism of injury resulting in aggravation of cervical spondylosis'. Her current pain was a manifestation of that, he said.
5. Mr Akil expressed the opinion that the transport accident was the 'trigger point' for the aggravation of the cervical spondylosis. He considered that to be 'the main cause' of Ms Pritchard's current neck problem. (He later described the transport accident as 'a cause' of Ms Pritchard's current injury and impairment). Mr Akil said that he did not consider the fall in 'around October 2021' to have had a significant impact on Ms Pritchard's neck.[18] It worsened an already existing cervical pain, he said. The transport accident had more impact. Mr Akil said that Ms Pritchard's prognosis was guarded and she could not return to her pre-injury duties. Her capacity for activities including lifting, bending and neck flexion were severely reduced, he said, and the restrictions would continue for the foreseeable future.

1. Mr Drnda made an assessment report in August 2023 at the request of the TAC. As Mr Drnda gave oral evidence at the hearing and was cross-examined, I refer here only to the main points in his report.
2. Mr Drnda recorded a history of injury relating to the transport accident and the fall in or about October 2021.[19] In particular, he noted that when Ms Pritchard attended a GP on the day of the transport accident, neurological examination was normal and her neck was described as having reasonable movements. She was prescribed Maxigesic tablets. [20] Two days later the GP she saw recorded a minor whiplash injury and that pain had improved after she had rested for two days.[21] Among other things, there was still some stiffness and soreness in the neck and the employer asked her to take a few more days off work until her symptoms settled. There was some tenderness. She was 'neurologically intact'. Two days after that, a GP noted that some neck and shoulder pain persisted, but Ms Pritchard was not taking any medication. Two days after that, a GP recorded that Ms Pritchard worried whether she had a head injury (although there had been no head strike or loss of consciousness). Among other things, there was some reduced movement in her neck. Ms Pritchard was provided with education. She told the GP she was happy to return to work the next day.
3. Mr Drnda recorded that Ms Pritchard said (to him) that she did return to work but was struggling initially. On a couple of occasions, her supervisor gave her anti-inflammatory medication. She said that she continued to struggle during the year and was occasionally taking some days off, but she did not attend any GP.
4. Mr Drnda noted Ms Pritchard's current symptoms, physical limitations, medication and treatment. He then summarised Ms Pritchard's medical history.
5. The history includes a diagnosis of anxiety and depression in 2017 arising from issues with her employer at the time. (In his oral evidence, Mr Drnda described the relevance of that condition to pain: see below). Mr Drnda noted occasions when Ms Pritchard was assaulted by clients at work and injured: August 2010 (fractured rib, pain in shoulders after a client pushed her shoulders against a wall); August 2014 (pain in upper neck, chest left arm and shoulder after a client pulled her left arm); July 2016 (pain in neck after a client forcefully pulled both her arms and shook her upper body);[22] and 2017 (pain in neck and upper back after a client pulled her hair). Mr Drnda commented that the July 2016 injury seemed to be the most significant one. He noted that Ms Pritchard's GP diagnosed a whiplash injury in the neck and referred her for physiotherapy. In the following month, Ms Pritchard was certified on a few occasions as not fit for work for two-three days. Continuing his summary of Ms Pritchard's medical history, Mr Drnda recorded that in May 2020 she slipped, tripped and fell hitting her face, causing neck and arm pain as well as pain in the zygomatic area on the left side. She attended a GP. She had an x-ray of her skull to rule out a fracture.[23]
6. Mr Drnda reported among other things that he found no signs of embellishment or non-organic illness. He noted that flexion of the neck was normal but he otherwise noted certain limitations. He noted Ms Pritchard's reports of tenderness around the back of her neck to the mid back. His other observations included that the range of movement in Ms Pritchard's shoulders was normal.
7. Mr Drnda referred to the report of the CT scan performed in May 2022 and said that it noted some chronic degenerative changes with a degree of foraminal stenosis: see further below. He commented that the findings were 'very chronic' and represented constitutional changes, which were mainly influenced by constitutional factors (genetics) and smoking.[24]
8. Mr Drnda expressed the opinion that in the transport accident Ms Pritchard suffered a whiplash type of injury to her neck - not an injury to the spine but to Musculo-ligamentous structures - which caused her pain. This was on a background of constitutional spondylosis. The accident caused strain on her neck and aggravated pre-existing, intermittently symptomatic 'muscular ligamentous' neck pain. He also expressed the view that Ms Pritchard's injury from the transport accident had resolved and was now in the state it would have been if the accident had never occurred. He estimated that her symptoms and injury would have subsided about six weeks after that transport accident. He expressed the view that the fall in 2021 triggered similar symptoms. It put a strain on Ms Pritchard's muscles which are vulnerable from underlying spondylosis and exposure to repetitive strain.[25] He said that Ms Pritchard needed postural exercises, mainly involving walking. He did not consider that physiotherapy (and dry needling) should continue. With caution, he expressed the view that Ms Pritchard has a positive prognosis.

1. Mr Akil provided a supplementary report in July 2024 after he was able to consider Mr Drnda's report. In particular, Mr Akil said that the information about the workplace injury in 2016 did not cause him to alter his opinion. He said that the condition in Ms Pritchard's neck became constant after the transport accident. Regarding the fall in 2021, Mr Akil said that mechanism of injury of 'these falls' was not significant enough to cause the pain. They could contribute to the increased intensity of the pain but the pain became constant after the transport accident. He disagreed with Mr Drnda that the injury suffered in the transport accident had resolved. He said there was no evidence that it had resolved. He added that Ms Pritchard had indicated that she had constant neck pain since the transport accident until the present. He disagreed that exercise alone would not be sufficient for Ms Pritchard. He did not agree that there was a positive prognosis.

1. Giving evidence in chief, Mr Drnda referred to a number of factors in Ms Pritchard's history that he considered significant. He said in effect that anxiety/depression makes it easier for a person to develop pain; that chronic smoking is a significant factor in degenerative diseases and leads to earlier development of cervical spondylosis; and that there were relevant past injuries that Ms Pritchard sustained at work. He said that he diagnosed a Musculo-ligamentous injury which, he said, is what a whiplash type of injury involves, adding that 'the background for something that facilitates more pain is spondylosis, which is a constitutional condition'. He expressed the opinion that the Musculo-ligamentous strain was not ongoing and that it settled after a few weeks. In this context, he said that it was significant that Ms Pritchard returned to work (which he described as strenuous and unpredictable work) within a week or so of the transport accident.
2. Cross-examined by Mr Theodore, Mr Drnda said that Ms Pritchard's evidence of being in constant pain did not cause him to change his opinion, because 'everything is subjective with pain' and he relied more on something objective, like attendances on GPs or physiotherapists who would document the patient's condition. He clarified that in saying the injury resolved, that did not mean that pain had necessarily resolved, because someone with constitutional spondylosis may have 'on and off' pain. Later, he said that pain is not injury: pain is just the symptom, which can be triggered by many different things. Still later, when asked if he maintained that the injury had completely resolved within a few weeks, Mr Drnda said in effect that he did maintain that. He said that he was not commenting on pain, because that is subjective and prone to influences of psychological, social and other factors.
3. Mr Theodore questioned Mr Drnda about how he arrived the diagnosis of whiplash type of injury to the neck - not an injury to the spine but to Musculo-ligamentous structures - which caused Ms Pritchard pain (on a background of constitutional spondylosis). Mr Drnda said in effect that it was because there was no evidence of dislocation or fracture or disc rupture - something that would produce an immediate neurological sign or neurological deficit. He said that there was 'just the local pain'. If the pain was not coming from the bone or disc or joint, it was coming from the muscles, which are on the surface and prone to strain.
4. I have noted that the CT scan of Ms Pritchard's cervical spine that Mr Akil and Mr Drnda referred to was performed in May 2022. That was 18 months after the transport accident. (The scan was requested by a GP whose notes dated 29 April 2022 include: 'pain neck ?since MVA 2020' and 'stated injuring neck 2020 car accident' and 'now neck aching intermittently, no acute injury'). Mr Theodore took Mr Drnda to the conclusion to the radiology report which states:

Mild central canal narrowing in mid cervical levels. There is compression at both exiting C6 and left C5 and C7 nerve roots.

1. Mr Drnda said that the information correlated with what he said in his report, though he went on to say that a radiologist cannot make a statement as to compression because a nerve root cannot be seen on a CT scan. But he added that if there was a compression on the nerve roots (he specified C5 and C7), there would be pain down the arm, numbness, tingling, altered reflex or 'something like that'. (In this context, responding to Mr Theodore and then to Mr Pinkstone, Mr Drnda noted that a MRI had not been ordered, which he would have expected would happen had a GP been concerned about nerve compression).
2. There is an aspect of cross-examination that I will refer to in more detail later, in my consideration of the evidence generally. Mr Theodore focussed on a statement in Mr Drnda's report that on 9 November 2021 Ms Pritchard 'attended with a three-week history of exacerbation of neck pain when she stepped in an indentation in the ground'. Mr Theodore pointed to a serious of notes by GPs from 29 September to 12 October 2021 and a physiotherapist (Ms Kirtane it would seem) on 19 October 2021 that referred to complaints by Ms Pritchard of back pain but made no mention of her neck. Mr Theodore's apparent objective was to demonstrate error on Mr Drnda's part.

1. I now refer to the most important parts of Ms Pritchard's oral evidence.
2. Ms Pritchard gave evidence about the impact of particular injuries sustained prior to November 2021 when the transport accident occurred.[26] I have noted that in the context of Mr Drnda's references to those injuries. Ms Pritchard said that immediately before the transport accident, she was very active at work; her physical health was 'really good'; and she did not have any issues with her neck. She maintained that she did not have neck pain from the fall in September 2021 but that the neck pain was 'there constantly since the car accident'. Describing that pain, Ms Pritchard said she had a lot of 'shooting' up into her head, and stiffness when she could not move. Some days she ended up on the couch, vomiting from the pain. She said it was like migraine but it was not migraine. She managed the condition with anti-inflammatory and pain medication her doctor prescribed.[27]
3. At numerous points in her oral evidence, despite the clinical notes not saying anything about it, Ms Pritchard insisted that when she saw doctors after the transport accident, she suggested having scans (of her neck) or asked whether she should have them, but the doctors didn't want her to have scans. She remarked that doctors do not write down everything patients say. Instead, the doctors told her that she had a soft tissue injury and needed to go back to work. She began to wonder what the point was in going to doctors. When it was put to her by Mr Pinkstone that she had been to a number of clinics and there was nothing to prevent her going to another doctor, Ms Pritchard referred to her mental health and said she had had enough. She went back to work and hoped her condition would get better but it just got worse.
4. Mr Pinkstone suggested to Ms Pritchard that if she had gone to a doctor in mid-2021, she would have complained about her neck. Ms Pritchard said that she didn't bother. She was trying to put it behind her. Because of her mental health, she was not coping. Ms Pinkstone referred Ms Pritchard to the notes about the consultation she had with a GP on 9 July 2021 in relation to epigastric discomfort. Mr Pinkstone actually did not get to complete his question, but in effect he suggested to Ms Pritchard that if she had had anywhere near the sort of pain she had been describing, she would have told the doctor about it. Ms Pritchard said that no one was listening, so she had given up and was just trying to manage the condition herself. When Mr Pinkstone said 'so you gave up after four attendances' (in November 2020), Ms Pritchard said the reason was because of her mental health. She was not coping. She was overwhelmed.
5. Ms Pritchard acknowledged to Mr Pinkstone that, after the fall in September 2021, her back pain went away within two or three weeks or thereabouts from which point it was her neck condition which incapacitated her. She acknowledged that prior to that point (but after the fall), she had two scans of her back that were bulk billed. Mr Pinkstone put to her, though, that she did not have any scan of her neck - bulk billed - until her solicitors suggested it to her. Ms Pritchard said that the doctors weren't offering her scans of her neck and when she requested it, she was told she didn't need it. Mr Pinkstone put to her that - if she had told doctors that her back pain had gone but it was now her neck that was incapacitating her and preventing her from going back to work - the doctors would have ordered a scan of her neck. Ms Pritchard maintained in essence the doctors did not arrange a scan even though she asked for it.
6. Ms Pritchard generally maintained that she hurt her back but did not hurt her neck in the fall. She said that her neck was already hurt. She did not accept Mr Pinkstone's suggestion that it was the fall that ruined her capacity to work. She said that she did not have neck pain from the fall but that her neck pain was there constantly since the transport accident. (At one point, Mr Pinkstone asked Ms Pritchard if she had any neck pain from the fall and she said, 'not other than my usual' (neck pain)).
7. There was evidence Ms Pritchard gave about the hours she worked and the pay she received at material times. Before the transport accident she was working part time - 68 hours one fortnight and 72 the other. She said that when she returned to work, she had to return to full duties. She also said, however, that she was never able to work 'the same' as she did before the accident. There were tasks that other workers had to do for her. (She mentioned, for instance, vacuuming and mopping). Her supervisor offered her medication but she didn't take it. On occasions she would just go home. She didn't obtain a medical certificate because she was able to take 'mental health' days off work.
8. Ms Pritchard's payslips and earnings records were included in the Tribunal Book. Ms Pritchard was cross-examined in detail about her work history after the transport accident. It is sufficient to record that Mr Pinkstone asked Ms Pritchard whether she accepted that on average throughout 2021 she worked longer hours than before the transport accident. Ms Pritchard responded by saying that sometimes she had to but it was not by choice. She added in effect that when there were lockdowns during the pandemic there were greater demands on regular staff (like her), as opposed to casual staff. She agreed that it 'wasn't uncommon' for her to work on up to five consecutive days and then have consecutive days off work.
9. Mr Pinkstone suggested to Ms Pritchard that in her days off work there would have been nothing stopping her going to a doctor if her neck pain was of any significance at all. Ms Pritchard said that 'mentally' she just 'pushed it to the side, with the doctors ...' She did not agree that she was in fact mentally 'quite switched on' because the nature of her work required her to be. She remarked that people can have severe mental health problems and go to their work and just focus. She said that is what she did but then she would 'fall apart' at home.
10. Ms Pritchard gave evidence that she did her domestic chores as best she could but she 'couldn't mow the lawns or anything anymore' and her son would do that.
11. Ms Pritchard said she went back to work after the transport accident because everything (including confusion about whether she should make a TAC claim or a WorkCover claim) was getting on top of her and she wanted to put the accident behind her. Also, she had financial commitments including (at the time) a mortgage. She maintained that her pain continued, however.

1. Section 35 of the Act relevantly provides that a person who is injured as a result of a transport accident that occurred in Victoria is entitled to compensation in accordance with the Act.
2. As defined in section 3(1), 'transport accident' relevantly means 'an incident directly caused by the driving of a motor car'. And (relevantly in the present case) 'injury' means physical injury. Section 3(3)(a) and (b) relevantly provide that a reference to injury in the Act is a reference to injury caused by a transport accident; and reference to a person who is injured is a reference to a person who sustains injuries that were caused by a transport accident. Section 3(c) relevantly provides in effect that a reference to injury in or as a result of or resulting from a transport accident (or to a person so injured) is a reference to an injury (or to a person who sustains injuries) directly caused by the driving of a motor vehicle.
3. Section 60 provides for compensation in the form of medical and like benefits. That includes the 'reasonable costs' of medical services and other relevant services received 'because of the transport accident': section 60(2)(a).
4. 'Reasonable' is defined in section 3(1) to mean reasonable having regard to matters including 'the necessity of the service or provision, or of the incurring of the expense, in the circumstances'.[28]
5. VCAT conveniently summarised the legal framework in Rus v Transport Accident Commission [2021] VCAT 70 (Rus) at [30]-[44]:
   1. VCAT's role when undertaking a review under s 77 of the Transport Accident Act 1986 (the Act) and s 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is to make the correct or preferable decision on the application exercising all of the TAC's functions.
   2. The Tribunal may take into account evidence before the decision-maker at the time the original decision was made as well as additional evidence provided by the parties ...
   3. The questions for me to consider are:
      • Is the [relevant condition] an injury 'caused by a transport accident' (s 3(3) of the Act)?
      • Did [the applicant] suffer the ... injury as a result of a transport accident (s 35(1) of the Act)?
      • Is the TAC liable to pay the reasonable costs of medical services for the [injury or condition] (s 60(2)(a) of the Act)?

"injury", except in Part 10, means physical or mental injury and includes nervous shock suffered by a person who was directly involved in the transport accident or who witnessed the transport accident or the immediate aftermath of the transport accident...

1. What is required is that the injury be 'directly caused by' the transport accident. This test of causation was explained by Ashley J in Gennimatas v TAC [2002] VSC 552 (Gennimatas) at [45]:

In the end, the authorities are not at odds with my conclusion that it is sufficient that a transport accident be a cause of injury as determined by the application of common law principle; and that the incapacitating consequences of injury are to be similarly determined. Those conclusions are entirely compatible with the proposition that it is injury caused by the transport accident which is to be compensated, and the impairment caused thereby which to be determined. [underline added]

1. An injury may have concurrent causes. The transport accident does not need to be the sole cause of the injury.
2. The standard of proof for determining causation was described in Rzanovski v Transport Accident Commission [2005] VCAT 652 (Rzanovski) at [38]:

... the question now to be answered is whether the evidence before the Tribunal is such as to justify an inference of probable connection between the transport accident and the [condition]. [underline added]

1. Neither party bears a burden of proof. The approach to be taken in weighing up the evidence of causation was described in Golem v Transport Accident Commission [2002] VCAT 319 (Golem), in which it was held that:

What is required of the Tribunal, placing itself in the shoes of the decision maker, is a state of satisfaction that the decision at which it arrives is the correct decision on the basis of all material before it... the bottom line is that the authorities establish that, in proceedings such as this before a Tribunal such as this and pursuant to legislation such as the Victorian Civil & Administrative Tribunal Act 1998, no burden or onus of proof in the curial sense exists.

1. In Sahin v Transport Accident Commission [2018] VCAT 1418 [(Sahin)] at [25], it was observed, referring to Rzanovski:

That state of satisfaction may be reached where the evidence before the Tribunal is such as to justify an inference of a probable connection between the transport accident and the condition. Any inference must be based on facts established by admissible evidence. The process of reasoning must constitute a valid inference as distinct from speculation or guesswork. The totality of the evidence may be considered together in order to ascertain the weight of the evidence as a whole.

1. In [Mennen v Transport Accident Commission [2016] VCAT 927 (Mennen)], the approach to be taken in assessing whether there is a sufficient link between the injury and the transport accident where the evidence is either wholly or almost wholly inferential was described at [56] and [57]:

There are occasions where a finding that an accident was a cause of a medical condition is largely based on a hypothesis that the accident was the only potential cause of the medical condition, all other possibilities having being [sic] excluded.

However, this tends to be the situation where a sufficient combination of the following applies:

1. It appears the condition as existing at the time of the VCAT proceeding did not exist before the accident;
2. The applicant's evidence assists and is completely or largely accepted;
3. The medical evidence surrounding the accident allows for the possibility that the accident was a cause of the condition;
4. The medical evidence, as months and perhaps years pass since the accident, at least does not contradict reported symptoms;
5. There is a reasonable explanation for any lack of reporting to medical practitioners after the accident; and
6. The possibility that the injury occurred after the accident can be excluded.

1. [It is to be observed] that the approach described in Mennen does not require all the above factors to apply, rather that there be a sufficient combination of them.
2. The TAC submitted, relying on Fox v Percy, [(2003) 214 CLR 118, [2003] HCA 22] that where a witness's testimony is shown to be unreliable or is rejected for reasons of credit then a claim as to injury must fail unless there is incontrovertible, objective evidence which supports a finding that the injury occurred in the way asserted by the injured party.
3. Fox v Percy concerned a factual contest between the parties: inconsistent assertions by Ms Fox, who was riding a horse, and Ms Percy, who was driving a Kombi van which collided with the horse, as to who was on the correct side of the road. The trial judge accepted Ms Fox's evidence despite incontrovertible objective evidence (the location of skid marks) that the Kombi was on the correct side of the road ...
4. The TAC submissions also referred to Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 which concerned the weight to be given to an expert medical opinion which is wholly reliant on the factual assumptions contained in the history provided by the witness. As observed in Ramsay v Watson at 649:

if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone.

1. There is no dispute that the transport accident on 17 November 2020 was a cause of the injury that Ms Pritchard suffered at the time. The question to be determined is whether the transport accident was a cause of Ms Pritchard's current neck condition.
2. For reasons that follow, I am not satisfied that the transport accident was a cause of Ms Pritchard's current neck condition. Having regard to the totality of the evidence, I have concluded that the evidence is not such to justify an inference of probable connection between the transport accident and Ms Pritchard's current neck condition.
3. In summary, the main reasons for my conclusion are as follows.
4. For years before the transport accident, Ms Pritchard worked in a physically demanding job. Over those years, she suffered injuries on various occasions, including to her neck. She saw doctors, was treated with medication, had time off work, and was able to return to work. She gave evidence that immediately before the transport accident, she did not have any issues with her neck.
5. There was no point taken about Ms Pritchard reportedly telling ambulance officers on the day of the transport accident that she was not in pain. In any event, she went to a GP the same day and, among other things, was prescribed Maxigesic - medication that combines an anti-inflammatory drug with an analgesic. Ms Pritchard was off work for a week. During that time, GPs' notes of her attendances included the diagnosis of 'minor whiplash' and the observation to the effect that she had no neurological symptoms. One GP noted that her pain had improved in the days after the accident. Another GP later noted that she was happy to return to work. None of those GPs ordered any scan of Ms Pritchard's neck or recorded anything to the effect that she had asked for a scan or might need one.
6. Ms Pritchard maintains that she was in constant neck pain from the time of the transport accident that only got worse. Her evidence and the general evidence, including statements by her supervisor and her son need to be evaluated.
7. It is highly significant, in my view, that there is no record of any complaint of neck pain to any GP or other health professional after her last attendance in November 2020 until after she fell in September 2021. In the meantime, Ms Pritchard did see a GP in July 2021, but she did not tell that GP about any neck pain. Ms Pritchard's explanations for that are unconvincing, especially when considered in light of her history both before and after the transport accident (of seeing doctors when injured, receiving treatment, and having time off work), and her knowledge - after the TAC accepted her claim - that she would be covered if she had time off work or required further treatment.
8. Within about a month after the transport accident, the online screen was completed. The online screen has some weight.
9. After she went back to work in November 2020, until September 2021, Ms Pritchard continued doing a physically demanding job, with increased hours, and she did not take sick leave, even if she took a small number of 'mental health' days. In contrast, since she fell in September 2021, Ms Pritchard has not returned to work. Whereas the main consequence of the fall was apparently regarded as symptoms in Ms Pritchard's back - in relation to which scans were performed - there is also evidence that points to symptoms in her neck as well. There were no scans of Ms Pritchard's neck ordered after the transport accident or the September 2021 fall. It was not until May 2022 - 18 months after the transport accident - that Ms Pritchard had a scan of her neck.
10. When the whole of the evidence is considered, there is a more reliable foundation for Mr Drnda's opinion about causation than for Mr Akil's opinion. I prefer Mr Drnda's opinion.
11. Fundamental to Mr Akil's opinion was his acceptance of Ms Pritchard's report that she had constant neck pain from the time of the transport accident. Ms Pritchard's report of constant neck pain (as opposed to on and off pain, as Mr Drnda discussed, or pain that was otherwise not constant neck pain) is not supported by the evidence as a whole, however. There is a similar point to be made about Ms Kirtane's letter to the TAC requesting funding for physiotherapy, although Ms Kirtane did not say that Ms Pritchard told her the pain was constant.
12. I now elaborate on the main points, which requires repeating much of the evidence.

1. It was reasonable for Mr Theodore to describe Ms Pritchard as stoic, as he did for, despite being involved in some distressing incidents at work over the years, she kept going back to work which was very demanding.
2. Much of Ms Pritchard's evidence was credible. But not all of her evidence was credible.
3. I do not accept Ms Pritchard's explanation for not visiting a doctor after November 2020 until after the fall in September 2021 (save for the visit in July 2021 for 'epigastric discomfort'). It would be understandable for her to have carried a psychological burden after the transport accident, though there is no evidence from a psychiatrist or psychologist about her mental state at material times.[29] On the other hand, there were several occasions in the past when Ms Pritchard suffered injury in very distressing circumstances, consulted doctors, was prescribed pain medication, and had time off work. In contrast, after the transport accident, she took only a week off before she returned to work. Within days of the accident, she had stopped taking medication to relieve her symptoms. She resumed physically demanding work, working normal hours and doing her usual duties, with only 'a couple of days off here and there'. There were times when she worked increased hours.
4. Mr Pinkstone submitted that Ms Pritchard's response (when he put to her that there was nothing preventing her going to a doctor between December 2020 and August 2021) was implausible and should not be accepted. This is what Ms Pritchard said:

Look what they - every time I went, they just told me, 'You need to go back to work. It's soft tissue. Don't want to do scans. Don't want to do this.' So I was like, 'What's the point in going to doctors? What for?'[30]

1. Similarly, when Mr Pinkstone put to her (in effect) that, if she had had anywhere near the sort of pain she had been describing, she would have told the doctor she saw in July 2021, Ms Pritchard said that no one was listening, so she had given up and was just trying to manage the condition herself.[31]
2. In my view, these statements by Ms Pritchard were improbable and unconvincing. Clearly, Ms Pritchard had options throughout the period November 2020 to September 2021, especially given that she consulted numerous doctors and several clinics over time.

1. Mr Theodore described as 'corroborative testimony' the statements made by Ms Pritchard's supervisor and son regarding her 'ongoing pain and restrictions' following the transport accident.
2. It is the case, as Mr Theodore pointed out, that Ms Pritchard's son's evidence and Ms Aitken's (Ms Pritchard's supervisor) evidence was not tested under cross-examination. This does not mean that their evidence should simply be accepted in its entirety.
3. In post-hearing submissions, Mr Pinkstone pointed out that there were challenges to the evidence that was the subject of Ms Pritchard's son's statement (as to the nature, extent and duration of Ms Pritchard's post-accident symptoms) because there were challenges to Ms Pritchard's evidence on a variety of matters. Those matters included the physical nature of her usual employment duties both before and after the transport accident; evidence of an improvement in Ms Pritchard's neck pain after the transport accident; the acknowledged fact that Ms Pritchard was not taking medication after the transport accident (at least by the time she was back at work); and evidence in the online screen - the response to the question about 'everyday physical activities'.[32] In this context, Mr Pinkstone cited De Agostino v Leatch [2011] VSCA 249 (De Agostino) and submitted that the usefulness of Ms Pritchard's son's evidence is to a large extent negated by reason of the concessions elicited from Ms Pritchard in her evidence.[33]
4. I accept that submission.
5. When assessing the reliability of Ms Pritchard's son's statement, it is also relevant to observe that it was made more than three years after the transport accident and about two and a half years after he moved out of home. To the extent that the statement constitutes opinion evidence, I accept Mr Pinkstone's submission that it should not be given any weight.[34] To the extent that the statement records simply what he observed, it may be given some weight. But the statement is imprecise for instance about when it was in relation to the transport accident that Mr Pritchard's son began to observe changes in Ms Pritchard's capacity for housework.
6. Mr Pritchard's son's statement must be considered in light of the whole of the evidence. That includes the evidence that Ms Pritchard returned to her physically demanding role a week after the transport accident in November 2020 and remained at work until September 2021, even if she said she struggled with some tasks. (I mention here that Mr Drnda noted in his report that Ms Pritchard said (to him) that she was struggling initially when she returned to work after the transport accident).
7. I turn to Ms Aitken's statement. I note first that there is inconsistency in the material concerning whether Ms Pritchard took any medication to address her neck pain after she returned to work in November 2020. Ms Pritchard confirmed in oral evidence that her supervisor offered her medication (Nurofen) but she did not take it.
8. When assessing the reliability Ms Aitken's statement, it is relevant to observe that it was made more than two years after the transport accident. In particular, Ms Aitken said that she said she could recall Ms Pritchard complaining of neck pain 'on occasion' during her employment. She could recall 'on one particular occasion' suggesting that Ms Pritchard consider taking analgesics given the amount of pain she was complaining of.
9. A person may of course experience pain constantly yet complain about it only occasionally. Ms Aitken's statement at least lends support to Ms Pritchard's evidence that she experienced neck pain after she returned to work in November 2020. But the statement does not indicate how frequent the pain was or (apart perhaps from the time Ms Aitken suggested analgesics) how severe it was. The statement does not indicate whether Ms Pritchard complained of pain over a period of days, weeks or longer after she returned to work. The statement must be considered in light of the whole of the evidence.

What Ms Pritchard reportedly said or did not say to GPs or other health professionals at material times

1. During cross-examination, Ms Pritchard maintained that her neck pain never improved in the days after the transport accident but only got worse. She maintained that she did not tell anyone that things had improved. Ms Pritchard's evidence is at odds with notes made by a GP on 19 November 2020 that 'her pains have improved since [she] has rested last 2 days'.
2. Mr Theodore's submissions focussed on notes made by a GP dated 23 November 2020 that documented a reduced range of movement in Ms Pritchard's neck, muscle spasm and tenderness of cervical muscles. Mr Theodore pointed out that no mention was made in those notes of any 'pain resolution'. He submitted that the note 'happy to return to work tomorrow' underscored Ms Pritchard's stoic nature and desire to 'move forward' and her determination to manage her pain and restrictions 'as directed by four different GPs'.
3. Mr Theodore submitted that there is no reasonable basis for excluding Ms Pritchard's history (as she reported it) simply because it was not documented. He submitted that Ms Pritchard gave consistent testimony regarding her ongoing symptoms and that there is also the evidence of other persons to take into account.
4. I have addressed the question of Ms Pritchard's credibility. I do take into account Ms Pritchard's supervisor and son's evidence (with the qualifications noted) and the broader context Mr Theodore pointed to. That context includes that Ms Pritchard was living alone (after her son moved out) and (for a time at least) was paying off a mortgage. She was dedicated to her work. She was 'grappling with mental health challenges'.
5. Although I do have regard to these matters (while noting also the lack of expert evidence about Ms Pritchard's mental health), I accept Mr Pinkstone's submission that it is likely, had Ms Pritchard been suffering symptoms in her neck (which symptoms, on her evidence, were constant, severe and debilitating), that she would have told her doctors, and it is likely they would have recorded those complaints (especially when Ms Pritchard knew she had an accepted TAC claim by around mid-December 2020 at the latest).
6. The evidence indicates that after November 2020, Ms Pritchard next saw a GP about a different matter (and evidently did not mention neck pain) in mid-2021. It was not then until after her fall in September 2021 that she next consulted a GP. I saw more later about the notes of her consultations with GPs and the physiotherapist, Ms Kirtane, about that episode.
7. I accept Mr Pinkstone's submission that the absence of any recorded complaint to Ms Pritchard's GPs for at least ten months in circumstances where she continued to work her normal job and normal hours tends against an inference of probable connection between the transport accident and the pain which she reported from around October 2021 after the fall in September that year.
8. Mr Pinkstone cited Philippiadis v Transport Accident Commission [2016] VSCA 1 (Philippiadis). In that case, the Court of Appeal said:
   1. We accept that courts need to exercise care in relying on the records of medical practitioners. Such records usually contain a selective summary in the doctor's own words of what the patient tells the doctor and cannot be treated as a verbatim transcript of the entire medical attendance. The records may be inaccurate through miscommunication or misleading through omission. However, notwithstanding their limitations, very often clinical notes constitute highly probative evidence because they are independent and contemporaneous and deal with matters within the author's area of expertise.
   2. Ordinarily, a patient who visits his or her longstanding general practitioner is likely to inform the general practitioner of the health issues that are then of concern to the patient. Also, a general practitioner who makes notes of each attendance would be expected to record the main health complaints made by the patient and the practitioner's observations and actions taken in relation to such complaints. It may be accepted that, in respect of some attendances, there may be departures from what would ordinarily be expected. However, where an injury is having serious adverse health consequences for a patient and that patient visits his or her general practitioner on a regular basis, it would be very unusual for the patient not to mention those consequences and for the practitioner's clinical notes not to refer to them over a lengthy continuous period of time.[35]
9. While I acknowledge that care needs to be exercised in relying on the GPs' notes especially, I consider them to be highly probative. Ms Pritchard may not have had a longstanding GP. On the other hand, it is significant that in the days immediately after the transport accident she saw four different GPs. The records they made are significant, especially the record of an improvement in Ms Pritchard's neck pain and the record of her not taking any medication within days after having been prescribed Maxigesic. It is also significant that none of the GPs recorded a discussion about Ms Pritchard having a scan of her neck. In this regard, the GP's note that she was 'neurologically intact' is especially significant, both as to the likelihood that no scans were considered to be required and as to important aspects of Mr Drnda's reasoning that I will come to. It is improbable, in my view, that the notes by the four GPs would be silent on key points because each of them simply failed to record information Ms Pritchard gave them, or requests she made of them.
10. I indicate in passing that the notes generally appear to me to counter any suggestion that the GPs were dismissive of Ms Pritchard's complaints.

1. Mr Theodore submitted that I should give very little if any weight to the online screen evidence.
2. I have set out the responses to the questions that were recorded in the online screen, and what Ms Pritchard had to say about the responses when she was giving oral evidence.
3. Mr Theodore submitted that the functionality of the online screen remains unclear, particularly regarding the identity of its author. He referred to a TAC file note that refers to repeated attempts to telephone Ms Pritchard before there was 'Phone Call Attempt 4 ...' He submitted that the questions appear to be 'pro-forma with pre-populated options for responses' which raises concerns about the reliability of the document. He said, specifically, that if Ms Pritchard gave an answer that did not align with the available options, it is unclear whether 'the TAC user' would select the option closest to her response, so her actual statements would potentially be misrepresented.
4. Ms Pritchard said she could not remember completing the online screen but she did not deny doing so. It may reasonably be inferred from the TAC's file note that the online screen was completed by an officer of the TAC after the officer contacted Ms Pritchard by telephone in mid-December 2020. It is possible that in entering Ms Pritchard's responses, the officer selected from available options rather than entering free text, but there is no specific evidence about that. I am unable to conclude from the file note, or from Ms Pritchard's responses to Mr Pinkstone about the online screen, that the responses recorded in the file note materially departed from responses that Ms Pritchard actually gave.
5. For these reasons, in my view the online screen does have some weight, if relatively limited weight.
6. The online screen evidence supports the conclusion that by mid-December 2020, Ms Pritchard's neck condition had significantly improved and that she thought then that she had recovered or was on the way to recovering.
7. The online screen is part of the evidence that conflicts with Ms Pritchard's claim that after the transport accident she was constant pain that only got worse over time.

1. Mr Theodore pointed out that Ms Kirtane was not cross-examined. This does not mean that what she said in her letter to the TAC should simply be accepted.
2. Ms Kirtane based her letter on what Ms Pritchard told her: first, that she had been having neck pain and headaches since the transport accident; and, secondly, that the fall in September 2021 impacted her back and leg but not her neck.
3. Having regard to the whole of the evidence, I consider that what Ms Pritchard reportedly told Ms Kirtane is not reliable: see further below under the heading 'The impact of the September 2021 fall on Ms Pritchard's neck'.

1. Mr Theodore pointed out that Mr Akill's opinion was not tested under cross-examination. This does not mean that his opinion should simply be accepted, for it was fundamentally based on what Ms Pritchard told him. The reliability of Ms Pritchard's statements to Mr Akil must be assessed.
2. Mr Theodore submitted that Mr Akil's opinion provides a more thorough and accurate reflection of Ms Pritchard's condition than Mr Drnda's opinion does. On the other hand, Mr Pinkstone submitted that I should prefer Mr Drnda's opinion because it accords with the objective record marked by Ms Pritchard's return to employment and normal hours and duties (one week) after the transport accident, without there being any recorded complaint of neck pain to a GP until 9 November 2021.
3. I do not accept that Mr Akil's opinion provides a more thorough and accurate reflection of Ms Pritchard's condition. And I do not accept the further submission Mr Theodore made to the effect that Mr Drnda's opinion does not reflect the totality of the evidence.
4. The reasons put forward as to why I should prefer Mr Akil's opinion included challenges to Mr Drnda's evidence that I will come to.
5. I have concluded that when the whole of the evidence is evaluated, there is a more reliable foundation for Mr Drnda's opinion about causation than there is for Mr Akil's opinion.
6. Mr Theodore highlighted that Mr Akil was in possession of complete clinical records whereas Mr Drnda was evidently given only extracts. If this is correct, still the more important questions would be whether these witnesses had sufficient information, and whether they made proper use of the information in forming their opinion.
7. As I have noted, fundamental to Mr Akil's opinion was his acceptance of Ms Pritchard's report of constant neck pain from the time of the transport accident. The report of constant neck pain is not supported by the evidence as a whole.
8. I further observe that in his initial report, Mr Akil noted that Ms Pritchard 'did not have any previous history' and said (on the basis of his review of the GP's notes) there were 'no significant spinal complaints' prior to the transport accident. Whatever precisely Mr Akil meant by saying that Ms Pritchard 'did not have any previous history', she did have a relevant history. Mr Drnda was in possession of information about the history. He summarised it in his report and took it into account.
9. In his supplementary report, Mr Akil essentially adhered to his opinion that the injury suffered in the transport accident had not resolved. That was because he accepted that Ms Pritchard experienced constant pain from the time of the transport accident.
10. Mr Theodore submitted in effect that Mr Drnda's opinion depends on Ms Pritchard's symptoms subsiding within an estimated six weeks whereas the evidence by Ms Pritchard, the lay witnesses, and Ms Kirtane indicated that was not the case. In my view, for reasons I have given, Ms Pritchard's report of constant neck pain (as opposed to, for instance, on and off pain that Mr Drnda spoke of) is not reliable when regard is had to the whole of the evidence.
11. In summary, I prefer Mr Drnda's opinion that in the transport accident Ms Pritchard injured her neck, but not her spine, and that her injury to Musculo-ligamentous structures resolved or would have resolved probably about six weeks after that transport accident. Whenever precisely it resolved, it was many months before her fall in September 2021.
12. In the next part of my reasons, I deal with a part of the cross-examination of Mr Drnda that was apparently intended to expose a flaw in his reasoning. The point concerned whether any of the doctors documented a report by Ms Pritchard of concerns about her neck (as opposed to concerns about her back) resulting from her fall in September 2021.

The impact of the September 2021 fall on Ms Pritchard's neck

1. Mr Theodore made a submission that, based on 'the overwhelming evidence of the [medical] histories', the September 2021 fall had essentially no relevance to Ms Pritchard's neck condition, other than prompting her to raise 'the ongoing issue of her neck' with her physiotherapist.
2. In cross-examination of Mr Drnda, Mr Theodore focussed on a statement he made in his report that on 9 November 2021 Ms Pritchard 'attended [a GP] with a three-week history of exacerbation of neck pain when she stepped in an indentation in the ground'.
3. Mr Theodore pointed to a serious of notes (by GPs from 29 September to 12 October 2021 and an unidentified physiotherapist on 19 October 2021) that referred to complaints of back pain but made no mention of Ms Pritchard's neck.[36] Mr Theodore's apparent objective was to demonstrate that Mr Drnda was in error to say there had been an exacerbation of neck pain in the fall. (In his post-hearing submissions, Mr Theodore submitted that Mr Drnda's opinion was based on 'selective evidence' and so was 'factually incorrect'. He also said in effect that (in his report) Mr Drnda made no mention whatsoever of Ms Pritchard's lower back but instead focussed solely on her neck).
4. As an aside, I express my view that if Mr Drnda focussed on Ms Pritchard's neck condition relevant to her fall in September 2021, that would not mean he was unaware of the issues recorded about her back. He was concerned with the relevance of the fall to Ms Pritchard's neck condition.
5. I also mention in parenthesis that a note made by the physiotherapist on 26 October 2021 referred again to Ms Pritchard's back pain. The physiotherapist noted that she advised Ms Pritchard to have a week off work. The note indicates that Ms Pritchard said that she needed to perform CPR to be able to work but that was 'not possible at this stage because of her neck pain (TAC whiplash injury last year)'.[37] The physiotherapist noted that Ms Pritchard was to call the TAC about her 'requirement and work' and its relation to the 'TAC injury'.[38]
6. Mr Drnda generally accepted that the clinical notes were as Mr Theodore put them to him. It emerged, however, especially in re-examination of Mr Drnda, that there is ambiguity in the notes as to whether Ms Pritchard told one GP (Dr Cheten Mistry) about neck pain associated with her fall on 27 September 2021.
7. It is necessary to refer to the notes in some detail.
8. Dr Mistry's notes from 9 November 2021 include:

History:

# Neck injury

History of MVA - hit from the back in car last year - neck pain from whiplash

Fall when walking with dog 3/52 ago - exacerbation of pain since accident

Needs to be able to do CPR at work

Requesting to open TAC claim again for physio ...[39]

1. There may be ambiguity as to whether Dr Mistry was here recording a reported exacerbation of pain since the transport accident or since the fall. Further down, however, the notes continue:

Issues.

1. Neck sprain

Acute exacerbation on a background of previous neck injury from TAC incident in 2020 ...

1. In my view, this part of the note indicates more clearly that Dr Mistry considered that the fall brought about the exacerbation of neck pain or sprain.
2. There is more to say about the matter.
3. Following the examination on 9 November 2021, Dr Mistry provided a Certificate of Capacity for Ms Pritchard. In the certificate, Dr Mistry expressed the diagnosis in this way:

Trip and fall with dog 3/52 ago - exacerbated per-existing neck hyperextension injury from car accident on 7/11/20. Ongoing issues with neck since incident. Current symptoms of neck pain, stiffness and reduced range of motion.[40]

1. When cross-examining Ms Pritchard, Mr Pinkstone suggested to her that she told the doctor she had neck pain as a result of the fall. Ms Pritchard said that she did not believe so.
2. According to a TAC file note, on 9 November 2021, the same day that Dr Mistry issued the above certificate, Ms Pritchard telephoned the TAC to enquire about funding for physiotherapy and related matters. The file note reads in part:

Client had a MVA in 2020 and more recently tripped over whilst walking her Dog which has exacerbated her neck injury from the MVA.

1. Ms Pritchard denied saying that, when the file note was put to her in cross-examination.
2. Finally on this point, it is to be recalled that Mr Akil recorded in his first report that after the transport accident, Ms Pritchard continued to work with persistent pain until about October 2021 (actually 27 September 2021) when she was walking her dog and fell which 'increased the intensity of her neck pain'.
3. All of this indicates that it was reasonable for Mr Drnda to regard the September 2021 as relevant to Ms Pritchard's current neck condition. Mr Drnda does not appear to have been in error when he said that on 9 November 2021 Ms Pritchard 'attended with a three-week history of exacerbation of neck pain when she stepped in an indentation in the ground'.
4. It may be noted, incidentally, that if Ms Pritchard 'reported only of left sided lower back pain and leg pain after the fall' to Ms Kirtane, that report was in conflict with other evidence.
5. Mr Theodore submitted that if I were to accept that the September 2021 fall did result in an exacerbation of Ms Pritchard's neck condition, it only worsened an already existing pain in her cervical spine of which the transport accident was a cause.
6. If the transport accident produced symptoms to Ms Pritchard's cervical spine that never abated, as Mr Theodore submitted, the fall in September 2021 might be said to have exacerbated that condition. However, in concluding, as I do, that the evidence as a whole does not justify an inference of probable connection between the transport accident and Ms Pritchard's current neck condition, I also conclude that Ms Pritchard's whiplash injury (not being an injury to her spine) resolved many months before September 2021.
7. It is relevant to mention here that, in re-examination, Mr Drnda gave evidence to the effect that, depending on what happened when Ms Pritchard fell in September 2021 (that is, the mechanism of the injury), the fall could cause or exacerbate neck pain. He added that a person with spondylosis has muscles and tendons in the neck that are more vulnerable than those in a person who has a 'healthy, normal neck'.

Further consideration of the radiological evidence

1. It should be apparent from the foregoing discussion that my conclusion involves me not accepting Mr Akil's opinion that the transport accident was the trigger point for an aggravation of cervical spondylosis.
2. That said, it may be accepted that Ms Pritchard has experienced neck pain from time to time since the transport accident, consistent with what Mr Drnda said was her constitutional spondylosis, and the factors he identified that were relevant to that and to her experience of pain.
3. I refer now to evidence that Mr Drnda gave when discussing the scan performed in May 2022. Mr Drnda's said that that if there was a compression on Ms Pritchard's nerve roots (at C5 and C7, he specified), there would be pain down the arm, numbness, tingling, altered reflex or 'something like that'.
4. In post-hearing submissions, Mr Theodore referred to Mr Drnda's evidence that Ms Pritchard had no symptoms of nerve compression when he saw her in August 2023. Mr Drnda also said that there was nothing about that issue in the GPs notes which mentioned only neck pain and symptoms related to the neck, not to the arms (which would be expected in the event of compression).[41]
5. Mr Theodore submitted that Mr Drnda was incorrect on that score. He referred to clinical notes made by a GP in May 2022. There were notes dated 18 May 2022 (which described the reason for visit as 'MVA 17/10/20') that included 'neck pain radiating to L shoulder' and 'Cervical spondylosis'. There were also notes by the same GP dated 31 May 2022 which described the reason for visit as including 'Neck pain with radiculopathy'. There was also Mr Akil's reference to Ms Pritchard having shooting pain along her left shoulder and left lateral arm to the elbow and which was associated with intermittent pins and needles in her left hand.
6. Mr Theodore submitted that Mr Drnda's opinion was based on 'selective evidence'.
7. It does appear that Mr Drnda was being asked about GPs' notes made prior to August 2023, when he saw Ms Pritchard. If that is right, then even though the GP's notes in May 2022 (in contrast to Mr Akil's report in May 2023) did not expressly refer to the arms, Mr Drnda might well have mentioned that there were GPs' notes about neck pain radiating to the left shoulder and neck pain with radiculopathy.
8. The important point is that (apart from the July 2021 notes about epigastric discomfort), there were no GP notes made after November 2020 until September 2021. And the GPs' notes in November 2020, made after the transport accident, included the diagnosis of 'minor whiplash injury' and the observation that Ms Pritchard was 'neurologically intact'.
9. When he was cross-examined, Mr Drnda maintained his opinion, and he explained that there was no evidence of dislocation or fracture or disc rupture following the transport accident - something which, he said, would produce an immediate neurological sign or neurological deficit.
10. Significantly, as I have noted, although Ms Pritchard was referred for scans of her back after the fall in September 2021, she was not referred for a scan of her neck after the transport accident, or after the fall in September 2021. She was not referred for a scan of her neck until May 2022 or thereabouts. This history supports Mr Drnda's conclusions.

1. Mr Theodore cited Principe v Transport Accident Commission [2016] VSCA 205 (Principe).[42] He submitted that Principe demonstrates that a gap in treatment does not necessarily indicate that an injury has resolved. He submitted, further, that the decision affirms the significance of lay evidence in establishing post-accident symptoms.
2. As Mr Pinkstone submitted, there are material differences between the Court's inquiry in Principe and the Tribunal's inquiry in the present case. Regarding that, it is sufficient to say that Principe involved a dispute about whether the transport accident was a cause of the applicant's admitted serious injury whereas in Ms Pritchard's case, the TAC accepts that she suffered an injury in the transport accident and the question is whether, on the evidence, there is an inference of probable connection between the transport accident and Ms Pritchard's current neck condition. Mr Pinkstone also distinguished Principe on the basis that there was not a supervening event in that case as the evidence establishes there has been in the present case. The supervening event he identified was the fall in September 2021. He reiterated that prior to that event, Ms Pritchard was working her normal hours in a physically demanding job, not taking any medication, not taking sick leave, and not complaining of neck pain to any doctors. But after that event, Ms Pritchard has never returned to work.
3. The judgment in Principe does not ultimately affect my conclusion in the present case.

1. For the reasons I have given, I am not satisfied that the transport accident was a cause of Ms Pritchard's current neck condition. Having regard to the whole of the evidence, I have concluded that the evidence is not such to justify an inference of probable connection between the transport accident and Ms Pritchard's current neck condition.
2. Therefore, I affirm the decisions under review.

[1] A note made by a GP dated 29 September 2021 refers to the episode having occurred two days before then.

[2] Ms Pritchard gave evidence that an officer of the TAC to whom she spoke on the telephone helped her complete the online form and even 'filled out the last few questions' as she found the process overwhelming.

[3] Ms Pritchard gave evidence that she did not remember completing the screen. Her counsel expressed a concern at the hearing that the screen may instead have been completed by an officer of the TAC to whom she spoke on the telephone, the implication being that the recorded responses to questions may not accurately reflect her thoughts at the time. The online screen was among the matters addressed in written submissions filed after the hearing.

[4] Mr Drnda's qualifications are set out in his report referred to in these reasons. His qualification to provide expert evidence in this case was not contested.

[5] Some of the medical reports note that Ms Pritchard told the authors that her car was written off.

[6] Ms Pritchard gave evidence that ambulance officers 'asked' her to go to hospital, but she didn't.

[7] In her oral evidence, Ms Pritchard said that she told ambulance officers about pain in the back of her head. She said in effect that ambulance officers told her that the shock and adrenaline temporarily overrode pain and that she should see a doctor later because the pain would begin.

[8] Ms Pritchard was evidently referring to the fall she had on 27 September 2021.

[9] He said that he could not recall the exact date of the transport accident but accepted Ms Pritchard's solicitors' advice that it was 17 November 2020.

[10] Mr Pinkstone submitted that this part of the statement was opinion evidence which should be given no weight.

[11] Mr Pinkstone submitted that the part of the statement summarised in this sentence and the preceding sentence was opinion evidence which should be given no weight.

[12] Material in the Tribunal Book indicates that the online screen was completed on or about 15 December 2020.

[13] Dr Patel was one of the GPs who saw Ms Pritchard in the days after the transport accident.

[14] Ms Kirtane said Ms Pritchard spoke to the TAC 'last year', but she may have meant 'last month': there is a TAC file note dated 9 November 2021 in the Tribunal Book that records Ms Pritchard telephoning the TAC and discussing funding for physiotherapy.

[15] Mr Akil's qualifications are set out in his reports. His qualification to provide expert evidence in this case was not contested.

[16] In her oral evidence, Ms Pritchard said that her supervisor offered her an anti-inflammatory (Nurofen, she thought), but she didn't take it.

[17] This was evidently a reference to the fall on 27 September 2021.

[18] This was evidently a reference to the fall on 27 September 2021.

[19] This was evidently a reference to the fall on 27 September 2021.

[20] Maxigesic combines an anti-inflammatory drug with an analgesic.

[21] Under cross-examination, Ms Pritchard did not accept what the GP had recorded about her condition having improved.

[22] In her oral evidence, Ms Pritchard demonstrated where she felt pain in her shoulders and neck after the 2016 incident, being the sides of her neck and lower part of her neck, and said that now the pain was at the back (of the neck).

[23] In her oral evidence, Ms Pritchard said that after the fall in May 2020 she had discomfort in her neck, among other places, but it did not continue. She acknowledged during cross-examination that she was prescribed Maxigesic. She also acknowledged that she had periods of sick leave due to the fall that were reflected in payslips in May and June 2020.

[24] Mr Drnda noted that Ms Pritchard has asthma and bronchitis related to chronic smoking which she continued (15-20 cigarettes a day). (Among other references in the material to smoking is a record by Mr Akil that Ms Pritchard smoked 10 cigarettes a day). In her oral evidence, Ms Pritchard said she began smoking when she was 'quite young'. Although a doctor advised her in 2014 to quit smoking, she didn't.

[25] Mr Drnda was responding to a question that, in apparent error, specified the date of the fall as 29 September 2021 rather than 27 September 2021.

[26] See the history noted by Mr Drnda, summarised earlier.

[27] It appears from Mr Drnda's report that Ms Pritchard described to him having symptoms and receiving treatment of the kind on four occasions in the four or five months leading up to his assessment.

[28] In Russell v Transport Accident Commission [2004] VSC 442 (Russell) at [10] Harper J remarked about the word 'necessity':

'That word is somewhat flexible in its scope. It does not, as I apprehend it, include only services which are vital for the continued reasonable existence of the victim as a functioning member of the community. What is necessary would include treatment that is of a much lower urgency than that. On the other hand, when one reaches the other point of the scale, one must presumably exclude as not being necessary treatment which is of merely temporary palliative effect, especially where that effect is not measurable'.

[29] Mr Theodore pointed to what he described as evidence to the effect that Ms Pritchard was overwhelmed. That was a GP's notes dated 18 May 2022 which included: 'Delayed management due to difficulties with TAC and [employer]'.

[32] I noted earlier Ms Pritchard's oral evidence that 'maybe' the response 'Completely (able)' wasn't

true, because she was not able to carry out those tasks.

[34] I have noted earlier the parts of Ms Pritchard's son's statement that Mr Pinkstone submitted contained opinion evidence.

[35] At [105]-[106]. Footnote omitted.

[36] It may be inferred that Ms Kirtane was the physiotherapist.

[38] The physiotherapist's notes dated 19 October and 26 October appear to be the background to Ms

Kirtane's letter to the TAC dated 3 December 2021 referred to earlier.

[42] At paragraphs [80], [82], 84] and [88]. (The citation was incomplete and partly incorrect, but it is sufficiently clear that Mr Theodore was referring to Principe).