Watkins v Motor Accidents

• [1] The applicant sustained injuries in a motor vehicle accident which took place on Gilruth Avenue, Darwin on 29 July 2004. The applicant was in the middle car of three which were stationary, or near so, at traffic lights when hit from the rear by a fourth car causing a "pile up". It is not in dispute that that occurrence was an "accident" as defined in the Motor Accidents (Compensation) Act (NT) (the Act).[1] It is also common ground that the applicant, who was aged 26 at the time, suffered an injury, generally described as "whiplash", as a result of the accident, although the exact nature and severity of that injury is not agreed.
• [2] It is also not in dispute that the applicant currently suffers from symptomatic spondylosis affecting his cervical and lumbar spine. That condition was first diagnosed in 2017. In 2019 the applicant underwent surgery in Brisbane on his neck. He regards that surgery as successful because it reduced his pain and eliminated his headaches, however he is left with a permanent reduction in the range of movement in his neck. The applicant continues to suffer from pain related to spondylosis in his lumbar spine. As a result, the applicant requires ongoing medical treatment, has a reduced ability to work and to engage in some activities of daily living.
• [3] The applicant is a qualified and experienced automotive mechanic. He also has experience working as a salesman (parts interpreter) in automotive parts. Each of the doctors who gave evidence in this case opined that the applicant is permanently unfit for work as a mechanic.
• [4] On 10 August 2004, the applicant made a claim for compensation under the Act, which was accepted.[2] He received benefits for loss of earning capacity between 2 and 31 August 2004, and for medical expenses incurred on various dates until the end of September 2004. He made no other claims for compensation and the claim file was closed on 3 March 2006.
• [5] On 24 October 2018, the applicant requested the file be reopened. It is common ground that he made a claim for variation of benefits on that date. The variation claim was rejected in May 2019 on the basis that the applicant's condition was not caused by the accident ("original decision").
• [6] Following the original decision, the applicant requested an internal review, which upheld the May determination. The applicant then requested a designated person review ("first designated person review").
• [7] On 21 April 2020, the designated person upheld the original decision. On that same date, the applicant appealed to the Commissioner. On or about 6 May 2020, the Commissioner set aside the first designated person review on compassionate grounds to allow collection of further evidence.
• [8] Between April 2022 and December 2022, the respondent made payments to the applicant on a without prejudice basis. However, on 21 December 2022, the respondent advised the applicant that he was ineligible for benefits, and that payments would end on 4 January 2023.
• [9] On 8 February 2023, the applicant applied for a further designated person review of the original decision ("second designated person review"). On 23 March 2023, the designated person confirmed the December decision and payment of benefits ceased.

• [10] Section 7 of the Act provides that benefits are payable to a person who suffers personal injury in or as a result of a motor vehicle accident occurring in the Territory. Among other things benefits are available for loss of earning capacity, medical expenses and permanent impairment. "Accident" is defined as an occurrence on a public street caused by or arising out of the use of a motor vehicle which results in the death or injury to a person.[3]
• [11] The central issue is whether the accident on 29 July 2004 is the cause of the applicant's current loss of earning capacity, permanent impairment and past and ongoing need for medical treatment, such that he is entitled to the relevant benefits under the Act.
• [12] Loss of earning capacity as described in s 13 of the Act is a reduction in a person's capacity to earn income from personal exertion, either physical or mental. A person will have a reduced capacity to earn income from personal exertion where they are unable, due to a relevant injury, to engage in an area of employment previously open to them. That will be the case even where they have secured other employment such that the reduction is not productive of a present entitlement to compensation.[4]
• [13] The issues for resolution by the Tribunal are:

(a) Is the applicant's condition now an injury suffered or as a result of the accident, and in particular:

1. Is the applicant's current (since January 2016) capacity to earn income from personal exertion reduced as a result of an injury suffered in or as a result of the motor accident on 29 July 2004: s 13;
2. Has an injury suffered in or as a result of the motor vehicle accident resulted in the applicant's permanent impairment and, if so, what is the extent of that impairment calculated in accordance with the Act: s 17; and
3. Does the applicant have an entitlement to medical and rehabilitation services reasonably required as a result of an injury arising from the motor accident: s 18.

(b) If the answer to (a) is 'yes', is the claim out of time because of s 31 of the Act?

(c) If the answer to (b) is 'no', what is the applicant's current loss of earning capacity and degree of permanent impairment?

• [14] Pursuant to s 29(2) of the Act the Tribunal must consider the matter afresh and is not bound by the original or review decisions.

• [15] At the hearing the parties raised a number of objections to evidence to be ruled upon at a later date. They are as follows:

(a) Applicant's objection to the evidence of Darcy Riley. Mr Riley was the driver of the vehicle which caused the accident. He made an affidavit and gave evidence at the hearing about what happened. The objection is on the ground that the whole of his evidence is irrelevant. The test of relevance in s 55 of the Evidence (National Uniform Law) Act 2011 (NT) (ENULA) is evidence that could, directly or indirectly, affect the assessment of the probability of the existence of a fact in issue in the proceeding. Evidence is not irrelevant only because it relates only to credibility. The applicant gave evidence about his recollection of the accident and how it occurred which was relevant to the seriousness of the original injury, a matter considered by the expert medical witnesses. The evidence of Mr Riley is relevant to that question and to the assessment of the applicant's credibility. I will allow the evidence to be admitted.

(b) The applicant also objected to the evidence of Ms Carey on the ground of relevance. Ms Cary was a receptionist at Top End Medical Centre (TEMC). She made an affidavit in which she deposed to the applicant having contacted that medical practice requesting that certain information held by that practice relating to him be corrected. The applicant gave evidence and was cross-examined about this. The cross-examination primarily related to his credit. I will allow the evidence to be admitted.

(c) The respondent objected to four passages in the applicant's affidavit of 15 November 2023.

1. The first was at paragraph [39] where the applicant referred to the request to make changes to the Top End Medical Centre records and annexed some correspondence from them as to the result of that enquiry. The respondent argued that that evidence was irrelevant. In view of my decision as to the affidavit of Ms Carey above the evidence was, while of little weight, not irrelevant and I will admit it.
2. The respondent next objected to a passage at paragraph [41] where the applicant referred to a recommendation for physiotherapy made by Dr Sharland after he consulted that doctor in 2017. Dr Sharland was not called to give evidence in the proceeding. The evidence is hearsay and not admissible as to the truth of the statement however no objection was taken to the admission, as part of the Court Book, (Exhibit A1), to a letter form Dr Sharland dated 23 October 2017 in which he recommends physiotherapy. In those circumstances I will allow the statement on the limited basis that does no more than refer to Dr Sharland's letter.
3. At paragraph [69] of the affidavit the applicant refers to advice given to the applicant by Dr Garg, a psychiatrist. That doctor was also not called in the proceeding and a claim for mental injury is not before the Tribunal. However, no objection was taken to admission of the doctor's notes as part of exhibit A1. Those notes include a letter from Dr Garg dated 16 July 2022 in which he recommends admission to the Darwin clinic. I will allow the applicant's statement in the affidavit to be admitted on the basis that it does no more than refer to the attached letter from Dr Garg. It is relevant to the history of the assistance which the applicant has sought for his injury and is part of setting the applicant's medical history, in relation to which the applicant gave evidence, and which is a key issue in the case, in context. It shows that the applicant mentioned ongoing pain to Dr Garg in 2022.
4. At paragraph [81] the applicant refers to, and attaches, a document described as a vehicle standard. In the absence of any expert evidence as to how it might be relevant, which was not available, that evidence is irrelevant and inadmissible.

Is the applicant's current disability a result of the accident on 29 July 2004?

• [16] Three medical experts gave evidence. Dr Osti, orthopaedic surgeon, was called by the applicant. Dr Baker and Dr Bonkowski, both neurosurgeons, were called by the respondent. Each of the medical experts examined the applicant once, for the purpose of this proceeding.

• [17] In his report of 15 March 2021 Dr Osti opines that the applicant's symptoms are consistent with symptomatic cervical and lumbar spondylosis which was triggered by the effects of the motor vehicle accident of July 2004. Dr Osti based his opinion upon the applicant's history noting in particular (a) that the applicant had never experienced spinal symptoms prior to July 2004, despite being involved in a previous motor vehicle accident in February 2004; and (b) given his age and the contents of the report of the x-ray done shortly after the accident in 2004 it was highly unlikely that the applicant suffered from any pre-existing degenerative condition.
• [18] In his report of 2 November 2023 Dr Osti said that the applicant's cervical and lumbar spondylosis was highly likely to have been triggered, that is become symptomatic, as a result of the accident based upon the history of (a) the absence of spinal disease prior to the accident; and (b) the onset of debilitating symptoms shortly after the accident which have persisted ever since.
• [19] As to whether the applicant would have developed spondylosis irrespective of the accident, Dr Osti discounted that possibility. First on the basis that the applicant had not had any symptoms up to that time and, secondly, because, based upon the information provided to him, the force involved in the accident was more than sufficient to lead to symptoms, because it resulted in soft tissue injuries to both the neck and lower back, with subsequent onset of degenerative changes which gradually became increasingly symptomatic, to the point where major surgery on the cervical spine was required.
• [20] In oral evidence, Dr Osti explained that spondylosis is, in general terms, not a traumatic condition but is genetically predetermined and time dependent. However, he said that there are instances where trauma can trigger symptoms in asymptomatic people and/or lead to acceleration of the degenerative changes which he described as the "mainstay" of spondylosis.
• [21] As to the relevance of the occurrence of spondylosis at multiple levels of the spine, Dr Osti agreed in cross-examination that spondylosis which was multi-level was more likely to be genetic and time-dependant than spondylosis at one level, which may be more likely to be trauma related. Dr Osti further agreed that the applicant's spondylosis is unlikely to have been caused by the accident. However, based upon the applicant's history, he remained satisfied that the symptoms and related disability had been triggered by the accident, and that if he had not been involved in the accident the applicant might have been in a different position.
• [22] Dr Osti agreed in cross-examination that if a person suffered an injury from which he fully recovered, and then much later developed neck pain warranting an operation then the original injury would be less likely to be causally connected to the later symptoms. Dr Osti also agreed that the less clear-cut the history of spinal disability (debilitating ongoing pain) then the less likely it is that the accident plays a significant role in the current problems. Dr Osti confirmed that his opinion as to causation was based exclusively upon the history he took from the applicant, which he described as the most crucial part of the opinion as to causation.
• [23] Based upon the applicant's history that he experienced debilitating neck pain since the accident, to the point where he required an operation in 2019, Dr Osti said that he had no difficulty concluding that the accident of July 2004 was causally connected to the current pain and disabilities. As to the surgery in 2019 Dr Osti said that the fact that that surgery was undertaken supported the fact that the applicant was experiencing pain at that time, and for some years before that, but agreed that it did not support reports of pain in the period 2005 to 2017.
• [24] As to whether, noting the contemporaneous records relating to each, it is likely that the motor vehicle accidents in which the applicant was involved in December 1996, December 1999 or February 2004 had an impact upon the applicant's current condition, Dr Osti stated that they would not on the basis that the applicant appeared to have been asymptomatic before the accident of July 2004.
• [25] As to the significance of the x-ray results from31 July 2004, Dr Osti said that he would not necessarily expect an injury which did not involve a fracture to show up in an x-ray. He said that non-demonstrable neck injuries, which are very common in practice, will not necessarily correlate with x-ray changes, either immediately or later. His opinion was that in many people

x-ray changes cannot be interpreted as a result of a traumatic event. Many people who have spondylosis have never suffered a traumatic injury. In the vast majority of patients in the doctor's experience, x-rays showing degeneration would not prove that the patient had, or had not, suffered an injury of the type suffered by the applicant.

• [26] When cross-examined about the report of the October 2013 x-ray (that there was no spinal degeneration) Dr Osti said that he would find it difficult to believe that if there were no signs in 2013 that major surgery would be required only six years later. Given that the 2013 x-ray was nine years after the accident, and only six years before the neck surgery, Dr Osti said that he would "challenge" that there were no findings of degeneration on that 2013 x-ray. However, if the findings of no degeneration in 2013 were correct, Dr Osti agreed that that would bring into question the relevance of the accident in 2004, although he qualified this by stating that he was guided more by disability.
• [27] Dr Osti regarded the applicant's spinal condition as having reached maximum medical improvement and said that further surgeries were unlikely to assist. He assessed the applicant's whole person impairment related to the cervical spine at 21 percent and the lumbar spine at six percent, based upon the AMA Guides to the Evaluation of Permanent Impairment (6th edition).[5] He did not calculate a whole person impairment using the combined values chart in the Guide, as required to come to a single figure for the purpose of the Act.[6]

• [28] Dr Baker assessed the applicant on 8 April 2019, before the neck operation, and produced three reports dated 17 April 2019, 6 February 2020 and 4 March 2024. It was Dr Baker's opinion that that it was likely that the applicant had suffered a ligamentous strain injury on 29 July 2024 which would have resolved in 12 to 18 months. Dr Baker opined that the applicant's ongoing symptoms of neck and back pain are due to cervical and lumbar spine spondylosis which is unrelated to the accident.
• [29] Dr Baker's reasons for concluding that the current condition is unrelated to the accident were: (1) the applicant did not suffer a significant spinal injury in the accident, noting that he did not require immediate treatment; (2) the applicant said that he had a stiff neck and a headache on the night of the accident but it was not severe enough (on the history taken by Dr Baker) for the applicant to seek analgesia or other treatment; (3) when the applicant did present to the hospital on the evening of 31 July 2004, the second day after the accident, the notes taken by the hospital staff do not indicate a clinical presentation of someone with a severe spinal injury; (3) although there were attendances upon his general practitioner and some physiotherapy prescribed in 2004, there followed a long period of time when no treatment was sought; (4) the plain x-ray taken at the hospital on 31 July 2004 did not show dislocation or swelling in the bone or muscles around the neck, which would have been an expected finding visible on plain x-ray 24 - 48 hours after a significant injury; and (5) the degenerative change seen in the CT scans of 26 September 2017 and 15 November 2018 and the MRI scan of 19 October 2017 is multi-level which tends to indicate that it is more likely that the spondylosis is "acquired" (degeneration which developed naturally over time) rather than being related to a specific injury, which would be more likely to show "focal" degeneration, that is deterioration largely in one area. The spondylosis seen in the applicant's scans are, in Dr Baker's view, characteristic of spondylosis of progressive onset acquired through the normal processes of life and living.
• [30] Dr Baker did not dispute that the applicant was currently experiencing pain. He said in cross-examination it is often difficult to tell what is generating the pain experienced by a particular patient and that pain does not always correlate with the severity of the degeneration as shown on medical imaging scans. Individuals can have degenerative change in the spine without pain, and can suffer severe pain in the absence of significant radiological findings. His view was that degenerative changes in the spine (spondylosis), is inevitable with aging, although not everyone will experience symptoms.
• [31] Dr Baker said that spondylosis in people in their late twenties or thirties is unusual, but that early changes are seen in some people by the late thirties. He further agreed that severe pain from spondylosis is rare in a person aged between 26 and 36 years, and not common (but can occur) in a person aged between 36 and 46, depending upon their occupation, lifestyle factors and genetic propensity.
• [32] However, Dr Baker did not accept the proposition that in the absence of genetic and work-related predispositions to spondylosis, the 29 July 2004 accident was a contributing factor to the applicant's pain. His view was that the factors he relied upon, as set out above, were more important and, on the evidence he had seen, the spinal injury suffered by the applicant in July 2004 was not severe enough to cause the degenerative spinal condition now suffered by the applicant. Dr Baker accepted that the applicant may have had severe pain and restricted movement at around the time of the accident, as a result of the strain injury he suffered (such as muscle spasm and stiffness), but did not accept that that condition would have lasted more than a few months. Dr Baker said that the cause of any ongoing pain could not be known. He also said that there was no evidence that the applicant had degenerative changes in his spine at the time of the accident.
• [33] In re-examination Dr Baker said that it is very unusual to see a patient who reports extreme levels of pain for a decade or more without degenerative changes.
• [34] Dr Baker agreed that the applicant suffered a loss of earning capacity but is capable of working in a sedentary role. However, he assessed the applicant's permanent impairment as zero, because he did not consider the current disability to be related to the accident. In cross-examination Dr Baker agreed that, leaving aside causation, based upon his understanding of the AMA Guides, the applicant's percentage impairments to the neck and lower back would be of the same order as the assessment made by Dr Osti, taking into account the neck operation in 2019.

• [35] Dr Bonkowski assessed the applicant on 4 August 2022 and prepared two reports dated 1 November 2022 and 27 February 2024. His opinion was that the applicant suffers from degenerative spondylosis involving the lumber and cervical spines, caused by degenerate spinal changes which are unconnected to the 29 July 2004 motor accident.
• [36] Dr Bonkowski said that he did not accept that the applicant had suffered severe pain for 20 years which has been worsening. His primary reason for this was that the history that the applicant suffered a significant whiplash-like symptoms at the time of the accident involving the neck, together with headaches and lumbar spine symptoms which continued unabated for 15 years, does not correspond with the CT and MRI findings.
• [37] The main reason for Dr Bonkowski's opinion was that the cervical spondylosis seen on MRI scanning was multi-segmental. He said that for this process to have been triggered by a whiplash injury 15 years prior, the injury sustained in July 2004 would have had to be a shearing injury or to have caused damage to virtually all of the cervical discs. Dr Bonkowski said that accelerated post-traumatic spondylosis is generally characterised by one disc showing disproportionate degeneration compared to others in the same spinal segment. This was not the type of degeneration described in the applicant's imaging reports. As such, it was the doctor's opinion that it is far more likely that the condition was an exclusively degenerative and constitutional process, and that the 2004 accident had "limited if any role to play" in the commencement of the symptoms. Dr Bonkowski said that the existence of multi-segmental lumbar spondylosis reinforced his opinion that this was a constitutional process.
• [38] In addition, Dr Bonkowski relied upon the fact that, between 2004 and approximately 2018 there had been very little need for either medical or therapeutic intervention for the applicant's spine. He also noted that there had been "one or two" general practitioner notes taken during this period to the effect that the applicant had reported that his cervical symptoms had settled or resolved.
• [39] Dr Bonkowski was asked to consider the report of the x-ray of the applicant's spine performed on 30 October 2013 at the request of a chiropractor. His opinion was that although a significant injury to a disc would not necessarily have shown up on plain x-rays at the time of the accident, by the time of the 2013 x-ray some signs of degenerate change such as narrowing of the disc space or the presence of osteophytes[7] would be expected. Dr Bonkowski's opinion was that the result of the 2013 x-ray indicated that if any injury to the discs was sustained in 2004 it was not structurally "all that significant".
• [40] Dr Bonkowski was asked about the changes shown on the x-ray taken in September 2017 which reported "moderate facet joint changes" in the lumbar spine. The doctor said that this indicated that between 2013 and 2017 the applicant had started to develop degenerative changes in his lumbar spine, noting that facet joint arthrosis is one of the "hallmark features" of degenerative diseases of the spine. In cross-examination Dr Bonkowski agreed that plain x-rays are not totally reliable, but that there was no evidence of spondylosis until the 2017 CT and MRI scans were done.
• [41] Dr Bonkowski also gave evidence that "Modic 1 changes" were present in the vertebrae adjacent to the L4/5 disc in the 2019 imaging. He said that Modic 1 is an acute stress reaction to a disc that is unhealthy, and a potent cause of back pain. Dr Bonkowski's evidence was that Modic 1 changes generally settle over a period of some months to a year (although they can persist for years), and are replaced by Modic 2 changes, which lead to a hardening of the bones. Dr Bonkowski said in his report of 27 February 2024 that it "strains credulity" to think that Modic 1 changes were present for 15 years. In court he said that in order for the Modic 1 changes to be present in 2019 "something had happened" to the L3/4 disc in the years or months leading up to the 2019 MRI.
• [42] Dr Bonkowski was asked to comment upon Dr Osti's opinion that the applicant's spondylosis had been triggered, that is become symptomatic, as a result of the accident on 31 July 2004. He regarded the use of the word "triggering" as implying that there was some pre-existing but asymptomatic degenerate change which was exacerbated, aggravated or accelerated by the accident. Dr Bonkowski accepted that trauma can cause a person with asymptomatic spondylosis to develop symptoms, although the cause was primarily genetic (70-80 percent) and a range of constitutional and lifestyle factors may contribute. Dr Bonkowski did not consider it likely that the applicant suffered any pre-existing degeneration of his spine at the time of the 2004 accident.
• [43] As to the role of the severity of the July 2004 accident, Dr Bonkowski said in his first report that it was unlikely to have been severe enough to impart any permanent damage. However, in cross-examination the doctor agreed that he was unable to give any opinion about the force likely to have been exerted upon the applicant's body without additional facts, including expert opinion from suitable experts. Dr Bonkowski also agreed that the severity of an accident is not an accurate predictor of the length of a person's recovery.
• [44] Although Dr Bonkowski said that it was not possible to be "absolutely categorical" about whether the applicant had or had not sustained shearing injuries to multiple cervical discs in the accident of 29 July 2004 given the time that has elapsed, he thought it was highly unlikely. Dr Bonkowski accepted that the applicant currently suffers from the symptoms he described, but his opinion was that those are not related to the accident of 29 July 2004, but are rather caused by cervical and lumbar spondylosis which is constitutional and without traumatic underpinnings.
• [45] Dr Bonkowski agreed when it was put to him in cross-examination that if the applicant had suffered fairly constant and severe pain in the neck and back since the accident of 2004, and if he had decreased ability to work physically from 2004 to 2017, he was suffering from something other than spondylosis.
• [46] In examination in chief Dr Bonkowski had said that he found the applicant to be a credible historian but when he looked at the radiological investigation he did not accept that the applicant had been in severe pain for 20 years. He said that most pains get better over time. He said that that history was not a credible history of a pathological process in the spine that he generally deals with, although it might be one of a variety of other conditions, such as chronic pain syndromes. He explained that chronic pain syndromes occur when a physical insult occurs to the body, which repairs itself, but due to a variety of psycho-social behavioural belief changes the symptoms become fixed. There was no medical report as to whether the applicant in fact suffered from chronic pain syndrome and if so whether it was related to the accident.
• [47] It was Dr Bonkowski's impression that the applicant's employability was "marginal". He said that it was unlikely the applicant could return to working as a mechanic but that a less physical role, such as a storeman or in general sales, would be within his physical capacity.

• [48] The applicant's counsel submitted that Dr Bonkowski's evidence supported the applicant's claim, on the basis that he agreed with Dr Osti that there was no other explanation for the applicant's symptoms than the accident. I do not accept that characterisation of Dr Bonkowski's evidence. Dr Bonkowski did not say that it was commonsense that if there had been no other cause for the applicant's pain then it must be the accident.
• [49] The relevant passage of evidence is:

And you have told us that by definition if you don't see osteophytes on the spine or some other indication, a person does not have spondylosis?---Well, the problem technically is that he didn't get a scan of his spine until 2017. The evidence prior to that was plain X-rays. Plain X-rays are not totally reliable. You can have evidence of very, very early spondylosis, some desiccation or loss of signal from discs on MRI scans long before anything shows up on plain X-rays. So the initial signs of spondylosis can be very subtle. And so there is no evidence because he didn't have a scan before 2017.

Yes. And if between 2004, which was the date of the accident?---Yes.

He reports experiencing fairly constant and fairly severe pain in the neck and back. By definition in the absence of a scan, he was suffering from something other than spondylosis?---He was suffering from - I mean in its broadest sense he was suffering from a pain syndrome. And you can't define it any more accurately than that.

Yes. And shortly before - well, I should say the only insult to the body to use your helpful language, before the onset of that pain was the accident in July 2004? Would you agree?---It was my understanding that he had had a couple of accidents prior to that as well.

Yes. In your reports you discounted those as having any impact on his present condition, didn't you?---Did I? All well, if I did, I did. Okay.

And if Mr Watkins reports decreasing ability to work physically over the period 2004 to 2017, including in the ability to stand and sit for long periods, the ability to look up for any length of time or in certain positions to the extent of closing his own workshop at the beginning of 2016. You would agree that that was indicative of something other than the effects of spondylosis?---Yes.

• [50] The first thing to note about this passage is that the question is predicated upon acceptance of the applicant's evidence that he has suffered severe pain and disability between 2004 and 2017, something which Dr Bonkowski did not accept, for the reasons I have summarised above. Secondly, the doctor seems to be saying that the only diagnosis would be some form of chronic pain syndrome. He does not clearly say that the applicant is suffering from that condition as the question is hypothetical. In addition, the potential diagnosis of chronic pain syndrome is not clearly linked to the accident, bearing in mind Dr Bonkowski pointed out the complex background of that condition earlier in his evidence.
• [51] The medical evidence establishes that it was more likely than not that the applicant did not suffer from spondylosis as at 29 July 2004, for the reasons given by Dr Osti and Dr Bonkowski. Contrary to the argument advanced by counsel for the applicant, I do not accept that the fact that symptoms are unexplained necessarily leads to the conclusion that they were caused by the accident.
• [52] For the applicant to be entitled to benefits under the Act, his compensable loss must be a result of the accident. That means that there must be a causal connection between his current loss of earning capacity, need for medical benefits or permanent impairment (the basis of his claim for variation) and the injury suffered in the accident. At common law the test of causation is as described in March v Stramere.[8] That is, determining the cause of an injury is approached as a question of fact by applying common sense to the factual circumstances. It follows that scientific certainty is not a requirement in order to establish legal causation. Legal causation may be established where an accident is not the sole or only cause of an injury.[9] That approach is applicable to causation for the purposes of the Act.[10]
• [53] However, there must be some evidence which can support an inference that a particular injury, in this case the applicant's pain and disability since at least 2016, is caused by (that is it is a result of) the July 2004 accident. The applicant bears the onus of showing that is the case or the balance of probabilities.
• [54] The evidence establishes that the applicant suffered a whiplash injury in the accident of 29 July 2004 and that he suffered pain and disability, in his cervical and lumbar spine from that time until around October 2004. I also find that the applicant suffered pain in his back in October 2013 and pain in his cervical and lumbar spine from June 2017 to date. It is more likely than not that since 2017 the applicant has suffered pain at various intensities resulting in varying levels of disability. The applicant had a significant operation on his neck in 2019. I have no doubt that the applicant currently suffers from significant pain and disability and that he is permanently unfit for work as a mechanic as a result.
• [55] However, the only clear evidence of a causal connection between the July 2004 accident and the applicant's current condition is the opinion of Dr Osti. That opinion rests entirely upon the history given by the applicant that he has experienced ongoing severe pain in his cervical and lumber spine since the accident.

The applicant's evidence as to his ongoing pain

• [56] The applicant gave evidence about what happened in the accident. He said that there was an "almighty shove" and "everything went cloudy". He said he was in shock for many days afterwards.
• [57] The records from RDH show that the applicant first attended for treatment on Saturday 31 July 2004, two days after the accident. He complained of neck and back stiffness and sleeplessness, insomnia and flashbacks. On examination he was found to have tenderness along the cervical spine, particularly at C2/3. An x-ray did not show any structural damage. The notes record that the applicant told the doctor that the back of his seat broke and his head went right back and then forward and he hit his head and hand on the dashboard. He said he had no pain at the time of the injury but his back and neck became sore at work that morning. He was feeling dizzy and sick since lunch time. The notes record that the applicant had suffered a back injury three months previously.
• [58] The applicant again sought treatment at RDH on 5 August 2004. The notes record that the applicant told the hospital staff that he had a five-day history of dizziness and lower back pain since the accident. The pain was recorded as mid to lower sharp back pain which was worse on standing and relieved by lying or sitting down. An additional complaint was mild cervical tenderness and mild lower back pain since the accident. There were no abnormal findings on examination. The diagnosis was a whiplash injury.
• [59] Thereafter the applicant sought assistance from his local doctor at Cavenagh Medical Centre (CMC). Records from that clinic show that the applicant attended following the accident on 8 August 2004. He complained of a whiplash type injury and lower back pain. The doctor recorded that he did not seek medical attention at the time but has been "feeling worse as days have gone by". There are references to vasovagal episodes which the applicant had been having since the accident. The applicant had been prone to these episodes from childhood.
• [60] The applicant continued to see doctors from CMC during 2004 and was prescribed physiotherapy. The last attendance at that clinic regarding a back problem was on 11 October 2004 when the notes state that the applicant presented with a sore back after working 1 hour, being unable to sleep and having burning pain in the mid thoracic spine. He is recorded as reporting that his neck is "fine" and was having some treatment for his mid back area. The notes record that the applicant had complained of a burning pain since August which had not previously existed. The doctor recorded mild tenderness at two points in the thoracic spine, T10 and T8-10, and reduced flexion laterally right and left and normal flexion extension. The doctor diagnosed the pain as related to the motor vehicle accident. The applicant does not allege that he has suffered injury to his thoracic spine and disputes the accuracy of this note.
• [61] The applicant gave evidence that he attended physiotherapy sessions for about six weeks in 2004 following the accident but those treatments did not provide any substantive or long lasting relief. He said that within a few hours his muscle tension and spasms would return. He said that there was no reduction in his continuous headaches or severe pain in the neck or lower back as a result of physiotherapy and treatment was discontinued because the physiotherapist said that there was no more than she could do for him.
• [62] However, there is no record of any request for assistance or claim for medical expenses between February 2005 and October 2018. The applicant says that he was prescribed pain killers by doctors at CMC and, when he developed stomach problems, a drug to address that. The CMC notes of 11 October 2004 record that Voltaren was prescribed, along with Somac tablets.
• [63] The applicant says that he lost faith in CMC thereafter and could not afford to pay for consultations. Instead, he self-medicated with pain killers which he purchased from the pharmacy, including codeine. The evidence was that codeine ceased to be available over the counter from pharmacies in Australia after 1 February 2018.
• [64] At the time of the accident, the applicant was working full time at Independent Motor Mart as a parts interpreter and was in the process of setting up his own mechanical workshop business in which he intended to work in full-time. The applicant's evidence was that by the end of 2004 the pain and restriction in movement he was suffering meant that he could not continue at Independent Motor Mart as an assistant manager in a parts interpreter role. He says that he resigned from his employment and between late 2004 and March 2015 was self-employed in his own business at a premises in Winnellie. In March 2015 the applicant took a full-time job as a parts interpreter (salesman) with Ashdown Ingram in Darwin. He continued to operate his business on a part-time basis but says that he completely closed it in about January 2016, as a result of his reduced capacity to work.
• [65] The applicant's evidence was that he was in almost continual pain to varying degrees from late 2004. He described the pain as varying from muscle spasms in his neck, upper and lower back to severe sharp pains his neck and back. He said that the pain varied with the activity he was performing. For example, he could not reach overhead for a long period of time and he could not lean over without experiencing sudden and debilitating pain in his back. To manage his pain and injuries, the applicant said that he paced his work and took breaks as needed. The applicant said that he suffered headaches from the time of the accident until his neck operation in 2019.
• [66] The applicant said that from 2010 he was receiving regular massages and some physiotherapy but these only gave temporary relief, lasting less than a day. From this time he was experiencing sharp pains in his legs after prolonged standing. Between 2010 and 2013 the applicant said that the pain increased to the point where he was required to change his scope of work. He could no longer perform work overhead or which required prolonged bending. As a result, the work he could do in his business was reduced, therefore reducing the income the business could generate.
• [67] The applicant said that by 2010-2013 the pain in his neck and back was continual and was only reduced by taking large quantities of pain killers. His sleep was severely affected.
• [68] The applicant attended Darwin Chiropractic Centre in October 2013. This was the first documented treatment he sought for his back since October 2004. The notes from the chiropractor record the applicant's presenting complaints as neck pain, headaches and low back pain referable to a motor vehicle accident. The accident was said to be "approximately five years ago" but this can be accepted as an error. The injury was described as whiplash and left knee compression damage and the major complaint as lower back pain. In the form completed by the applicant for that attendance, in answer to the question "how long have you had this condition" the applicant wrote "one week" and, as to whether this has happened before the answer was "no".
• [69] The chiropractor requested a spinal x-ray, which was performed on 30 October 2013. The report of that investigation said there was no significant facet joint arthrosis or uncovertebral disc osteophyte complexes in the cervical spine and no significant facet joint arthrosis affecting the lumbar spine as noted above. Dr Bonkowski's evidence was that this report meant that the x-ray did not show any significant abnormality.
• [70] The applicant's evidence was that, by 2015, his condition had deteriorated further. He could no longer sleep for more than a few hours at a time and was always late for work at his job as a parts interpreter. He was taking over the counter pain medications such as aspirin, paracetamol and medications containing codeine. He became concerned about this.
• [71] As his symptoms increased the applicant said that his ability to work and to perform daily household tasks such as laundry and cooking was reduced. He was unable to take part in his favourite hobbies. He suffered mental stress and was spending increasing amounts of time away from work. As a result, in early 2016 the applicant closed his business. He continued in his alternative work as a spare parts interpreter (salesman) with Ashdown Ingram, which he had started on a full-time basis in March 2015.
• [72] It was the applicant's evidence that the "ten out of ten" pain persisted during this period and moreover, was gradually worsening. His evidence was that he continued to struggle with poor sleep and pain. From 1 February 2018 when no codeine containing medications could be obtained he tried taking aspirin and Panadol, but that did not assist. He said that around that time he returned to seeking medical assistance.
• [73] The applicant said that he was struggling to maintain his employment and he took extensive sick leave whilst working for Ashdown Ingram.
• [74] The applicant sought assistance from doctors at general medical practice TEMC from June 2017. On 28 June 2017 Dr Chiputa recorded a presenting complaint of lower back pain for three days starting one day after "jumping off a chair to the ground". The applicant says that this history is incorrect and in fact the pain started when he jumped up off of a chair. The doctor also recorded that the applicant "Had a car accident about 10 years ago with resultant neck issues that have resolved". On examination the doctor noted slight midline tenderness at L4/5 and paraspinal tenderness on the left at

L4-S1. Other tests for spinal issues were normal.

• [75] The applicant consulted Dr Ismail at the TEMC on 18 September 2017. The doctor recorded backache and that the applicant reported flare ups on and off after an accident a year ago. No spinal tenderness was noted on examination. Plain x-rays of the lumbo-sacral spine were ordered and the painkiller panadeine forte prescribed.
• [76] On 25 September 2017 Dr Karl Herath at TEMC recorded that the applicant reported chronic backache which has gotten worse during the last two months with tingling sensation running along the left leg. Painful back movements were noted on examination. An x-ray taken on 18 September 2017 showed moderate facet joint hypertrophic changes in the lumbar spine. Dr Herath ordered a CT scan. The CT scan conducted on 26 September 2017 showed degenerative changes in the applicant's back at L3/4 and L4/5 resulting in nerve impingement at L3 and L4, and some mild facet joint changes at L5/S1.
• [77] On 16 October 2017 the applicant was prescribed the painkiller Tramadol for backache and was noted referred to a specialist. The specialist was Dr Sharland, who ordered a MRI. The report of that investigation, which was undertaken on 19 October 2017 confirmed disc degeneration at L3/4 and L4/5 and also mild facet joint degeneration at those levels. The report states there was no evidence of nerve root compression at L3 or L4. Dr Sharland recommended physiotherapy.
• [78] On 24 July 2018 the applicant consulted Dr Maghsoudlou at TEMC for chronic pain. The notes state that the applicant reported that he could not sleep. The drug Endep was prescribed. At a further consultation on 9 August 2018 the applicant is reported as having discussed weight loss. He reported ongoing back problems. Referral to a pain clinic was discussed, but there is no evidence that it was pursued.
• [79] On 13 August 2018 the applicant again consulted Dr Maghsoudlou seeking medication to assist with weight loss and was given a trial of the drug duromine. On 21 August 2018 the applicant told Dr Maghsoudlou that he was happy with the duromine, that he was sleeping better and his pain was improving and he was keen to start physiotherapy. He said he had been to a chiropractor which did not help a lot.
• [80] On 29 September 2018 the applicant is recorded as telling Dr Mir at TEMC that he had not lost weight but would continue with duromine. He was prescribed the drug mersyndol for back pain due to "degenerative disease of the spine". Those prescriptions were continued by Dr Maghsoudlou on 9 October 2018.
• [81] On 25 October 2018 the applicant consulted Dr Goodhand at the Palmerston GP Super Clinic. Dr Goodhand recorded a brief statement of the applicant's history including that he had suffered back and neck pain since the accident and that he could not afford further investigation and treatment and needed his compensation claim "reinstated". Dr Goodhand recorded that the applicant was unable to work as a parts interpreter and that pain killers and exercise in the pool were not giving significant relief. On examination, neck and back tenderness with limited range of movement was noted. The diagnosis was neck and back pain related to the 2004 motor accident. Pain medications were prescribed. Further MRI and CT investigations were ordered.
• [82] The applicant said that the management at Ashdown Ingram were supportive and modifications were made to his activities in the workplace, and he was able to do the work without significant issues for a couple of years from March 2015 but then started to have more difficulty and had to miss work regularly due to his symptoms. From October 2019 he was unable to continue working and resigned from his position at Ashdown Ingram in January 2020.
• [83] The applicant has attempted re-training courses at Charles Darwin University, including an IT course. However, he gave evidence that his study was affected by his lack of sleep and inability to concentrate and he was unable to complete those courses.

Was there evidence that the applicant suffered continuous pain from late 2004?

• [84] I am unable to find that the applicant suffered constant, or nearly constant, pain and disability in his neck and back in the period from late 2004 to June 2017. The reasons for this are:

(a) The applicant did not seek medical assistance in relation to back pain, with the exception of the chiropractor in October 2013, between October 2004 and June 2017. I do not accept the applicant's explanation that he had lost faith in CMC or that he could not afford to see the doctor. During the same period he sought assistance for other, unrelated, medical conditions, including injuries and infections. He attended CMC, TEMC and RDH at various times for this purpose between February 2005 and June 2017. The notes of these visits were in evidence. In none of them is there a record that the applicant mentioned any issue with his neck or back. While that might be understandable in relation to those specific visits, because the doctor and the applicant were focused upon the issue at hand, it is very difficult to believe that if the applicant had serious pain and disability stemming from his neck and back, he would not have sought medical assistance, as he did in June 2017, on at least some occasions in that very long period.

(b) The applicant appeared to have given reports to doctors which are not consistent with severe ongoing pain:

1. The CMC notes from 11 October 2004 state "seen Ability physio and now neck is fine". Which is contrary to the applicant's evidence that the pain persisted and that physiotherapy did not assist.
2. TEMC recorded that neck issues from the accident had resolved when the applicant attended there on 28 June 2017. This was the consultation in which the applicant says that the notes incorrectly recorded that he jumped off a chair when in fact he jumped up from a chair. I do not regard that difference as significant. The important point was that the notes record that the applicant reported lower back pain for only three days prior to attending at the doctor's office.
3. On 18 September 2017 TEMC notes state "flare up on and off after an accident a year ago". Assuming the reference to an accident is not a year previously but in 2004, that is not consistent with constant pain, but rather with intermittent symptoms. The applicant's evidence was that symptoms were constant. There is no medical evidence to the effect that intermittent symptoms are consistent with the pain and disability as a result of the 2004 accident.
4. When completing information for his attendance upon Dr Osti in 2019, after the neck operation, the applicant described his pain level as "moderate".
5. When the applicant attended the chiropractor in October 2013, neck pain, headaches and low back pain were noted and related to the motor vehicle accident. The major complaint in October 2013 was low back pain which he reported had been ongoing for one week, that it was one week since he had "felt good", and that he had not suffered this before. In cross-examination the applicant agreed that he filled out the form for the chiropractor in that way. He said that it referred to "this bout" of the pain. Although he admitted of some variation, the applicant's evidence overall in this case was that the back and neck pain was constant and severe through the whole period. This is not consistent with the evidence from the chiropractor visit in 2013.
6. The x-ray taken at the request of the chiropractor in October 2013 did not provide evidence of degenerate change in the applicant's spine. Noting the limitations of x-ray compared to other forms of imaging explained by the medical experts, Dr Bonkowski said that the x-ray did not show degenerate changes and that, had there been a significant spinal injury in 2004, by 2013 he should expect to see some evidence of that. Dr Osti, although he did not completely accept that the 2013 x-ray (he did not have the film, only the report) did not show degenerate change, said that if that were the case then the accident was likely to be less relevant as a cause.

(c) There was no evidence, for example from contractors or customers, supporting the applicant's statements that he was unable to do certain types of work from 2009 to 2016. Further, there was no evidence from the applicant's employer at Ashdown Ingram as to any difficulties observed or accommodations made in that workplace from March 2015 until the applicant resigned in 2020. There was also no evidence from friends or family members as to any observations they may have made as to the applicant's difficulties over the period 2004 to 2017. There are times when this may have been particularly important, for example when the applicant visited his parents at Christmas 2014. There was no explanation for the failure to call any of this evidence. The absence of this evidence, in particular as to the difficulties in the workplaces, which would have been expected, leads me to the view that it would not have assisted the applicant's case. I do not infer that the evidence would have been unfavourable to the applicant. However, I take the failure to call the evidence into account in relation to whether I can draw an inference, on the balance of probabilities, that the applicant has suffered constant severe pain since the July 2004 injury.

(d) The applicant gave evidence that he drove, on his own, to his parent's home in Bribie Island, Queensland around Christmas 2014, returning to Darwin, also by car, some time before he started with Ashdown Ingram in March 2015. The distance each way is about 3,500 km. It should be noted that the applicant does not suggest that he cannot drive a car. However, his evidence was that he could not be in one position for more than about 15 minutes, including sitting down. The applicant's affidavit evidence was that after 2010, but by at least 2012 he was in continual pain in his neck and back, only relieved by large quantities of pain killers, which became more difficult to get in 2014. By around 2015 he could no longer sleep for more than a couple of hours and was always late for work. This evidence is difficult to reconcile with driving to Bribie Island over Christmas 2014, even taking into account that there was no detail about how long the applicant took to make the trip or what breaks he took along the way.

(e) The evidence as to the applicant's activity while on holiday in Indonesia undermines his credibility.

(i) In cross-examination, the applicant agreed that the period from 2017 to 2018 and up until his neck operation in 2019 was the most difficult phase of his injury progression and that physically demanding work and strenuous exercise was impossible at this time. He was shown various Facebook posts including a video made by him while on holiday in Indonesia in November 2017. The applicant agreed that on that holiday he rented a canoe or kayak and paddled between the islands Gili Trawangan and Gili Meno, a distance of about 840m. While at Meno he had lunch and a few drinks, and snorkelled. The applicant agreed he then paddled back to his point of origin on the beach at Gili Trawangan, possibly via Turtle Point, although he could not remember. The applicant originally said he believed he had hired the kayak or canoe for half an hour but agreed, on seeing the video, that it took three hours. He then later agreed he was back an hour and a half late, which meant he may have had the canoe or kayak for about four and a half hours, but said he could not remember exactly.

(ii) The applicant initially said the conditions were calm and glassy but later agreed that he had posted a can of coke on his Facebook page on 12 November 2017 with the caption "I don't think I've earned one of these more in my life than I have today". The applicant further agreed that he had commented on this post "It was rough as guts coming back". And that his Facebook comment stated that "return trip was headwind to combat the channel current" and "Muscles burn baby burn". He agreed that his Facebook comment suggested he paddled for an hour back to shore, and that he was "drenched". He agreed he commented "Top challenge".

(iii) The applicant explained this discrepancy by saying that he probably elaborated on his Facebook. He said he did not recall going to Turtle Point and could not guarantee that the times he gave were accurate. He agreed he may have elaborated in his Facebook posts, as people sometimes do. The applicant said that he could do strenuous exercise, saying that his lower back pain was more to do with his position, although prior to the operation he had neck pain all the time. He also did not dispute that he can sit on a low bench, such as a canoe and that he can paddle as he was not holding the paddle above shoulder height. He also said that following the paddling day he suffered pain which he had massages to relieve.

(iv) This evidence does not really have much to say about the applicant's physical capability overall. It is one activity on one day while he was on holiday. It is however generally inconsistent with a narrative of complete disability and constant pain at this time, and to that extent it makes the applicant's narrative less credible. It tends to show that the applicant is not a reliable historian.

(j) The applicant's work history is another indicator that the applicant's evidence is unreliable.

(i) He gave evidence that he ceased his role at Independent Motor Mart in 2004 because of his back pain. However, he had registered his own business name in 2003 and had commenced buying equipment and setting up the business. In cross-examination he agreed that he wanted to have his own business and that was the reason that he left Independent Motor Mart in late 2004 or early 2005.

(ii) The fact that the work in his own business was easier, due to the ability to take breaks and pace himself, is not consistent with the applicant's evidence that in 2015 he was struggling with his back issues and therefore had to leave his own business to return to a job as a parts interpreter at Ashdown Ingram. This was essentially the same sort of work which he had done at Independent Motor Mart. On his own evidence, the applicant had no real difficulty doing the work at Ashdown Ingrams for about the first two years of the employment, albeit with some accommodations as he went on.

(k) Finally, as I have described, the medical evidence of Dr Bonkowski and Dr Baker does not support the applicant's account.

• [85] For the above reasons, I do not accept the applicant's evidence in his affidavits and in court that he has suffered almost constant severe and debilitating neck and lower back pain since the date of the accident. In saying this, I do not think that the applicant deliberately fabricated his evidence. I also have no doubt that he is now suffering significant pain and disability. However, I find that his recall was, perhaps understandably given the length of time and his current condition, unreliable. I am therefore unable to accept the applicant's account as to the continuing nature and severity of his symptoms where it does not accord with other objective evidence, including the contemporaneous medical notes.
• [86] In so far as Dr Osti opined that the applicant's injury was related to the accident, this opinion was dependent upon acceptance of the applicant's evidence as to the constant pain he has suffered over the last 20 years. I am therefore unable to accept that evidence and I prefer the opinions of Drs Bonkowski and Baker that the applicant's current condition is unrelated to the accident on 29 July 2004.
• [87] Therefore, the application to the Tribunal must be dismissed.

• [88] The respondent submitted that the applicant's claim was time barred by s 31 of the Act. In view of my findings above it is not necessary to determine this point, but in deference to the considered submissions of the parties I set out my views below.
• [89] Section 31(1) requires that a claim for the variation of benefits be made as soon as practicable after a "change in circumstances". Section 31(2) provides that a claim may be refused if made more than six months after the occurrence that gave rise to the variation, whilst s 31(3) requires the claim be refused if made more than three years after that occurrence.
• [90] The dispute between the parties centred on when the occurrence that gave rise to the variation that took place. The respondent argued that several occurrences gave rise to the variation, all of which were outside the time limit. In contrast, the applicant maintained that the relevant occurrence took place in 2016, when the applicant closed his business.
• [91] A wide range of things could be an occurrence giving rise to a variation under the Act. Occurrence is not a defined term. It must be given its ordinary meaning, which is understood as an event or incident. The relevant occurrence must also relate to a change in circumstances which has the necessary connection to the injury, such as to entitle the applicant to benefits under the Act.
• [92] A claim for a variation of a benefit can be made at any time. In my view any relevant change in circumstances giving rise to a claim for a benefit may be an occurrence for the purposes of the Act. There is no requirement that an applicant claim for each and every occurrence in sequence. However, failure to do so may mean that there is no entitlement to benefits where the time limits in s 31 are operative.
• [93] The occurrence giving rise to the claim for compensation in this case was said to be the combination of the closure of the applicant's business in early 2016 and a realisation of his permanent limitations and problems in his role as a parts interpreter. The date of the latter circumstance was not specified. In oral submissions the applicant's counsel said that the relevant change in circumstances occurred with the closure of the business in January 2016.
• [94] A change of employment, without more, has no sufficiently direct relationship with an accident as defined in the Act to be an occurrence for the purpose of s 31. The applicant submitted that so far as s 13 benefits are concerned there was, as at January 2016, an increase in pain/disability such that he was unable to do the work involved in running his own mechanical repair business. The relevant occurrence is therefore said to be a reduction in the applicant's capacity to earn income from personal exertion related to the injury. The occurrence giving rise to a change in circumstances for s 17 benefits is, similarly, an increase in symptoms or a deterioration in the appellant's condition related to the injury, such that further treatment or rehabilitation was necessary.
• [95] The respondent argued that the relevant occurrence giving rise to the change in circumstances founding the claim for variation of benefits occurred in 2005 or February 2006 when the claim was closed. Alternatively, the respondent says that the change in circumstances occurred, on the applicant's evidence, when the applicant first changed jobs, from Independent Motor Mart to his own business, in 2004, or at the latest March 2015 when the applicant recommenced employment as a parts interpreter. The respondent argues that each of those occurrences was outside the three-year time limit in s 31(3) and therefore must not be considered. The respondent also argues that each item of treatment referred to by the respondent, such as the chiropractic treatment in 2013, was an occurrence. The respondent further argued that the legislation requires that notification of the change in circumstances giving rise to the variation must be given as soon as practicable after the relevant occurrence, even if it does not result in a claim.
• [96] The respondent is correct that various things could be an occurrence, although I do not accept that the ones noted are the only possibilities. However, to the extent that the respondent contends that every occurrence must be notified, irrespective of whether it is accompanied by a claim, that cannot be accepted. The time limits in s 31 of the Act apply to the making of a claim, not the occurrence giving rise to the claim.[11] A failure to make a claim within the time limits prescribed may result in the respondent refusing to consider a claim made more than six months after an occurrence, and will do so where a claim is made later than three years. However, should there be another occurrence which independently founds a claim for variation there is nothing to prevent a claimant making a further claim, as the time limit will reset from the date of the new occurrence. Difficult questions of causation may arise, but that is a matter for the evidence in each case.
• [97] In this case the applicant did not rely upon any reduction in ability to earn income from personal exertion arising before January 2016. The claim for variation was made less than three years from the date of the alleged occurrence and therefore the respondent was not required to refuse to consider it. To the extent that there may have been any reduction in earning capacity before January 2016, the applicant did not rely upon it. Of course, in order to succeed, the applicant was required to prove that he did suffer a relevant reduction in earning capacity in January 2016, but that is a different question.
• [98] The claim for a variation in benefits in October 2018 was made more than six months after the alleged occurrence in January 2016. The proper approach to the exercise of the discretion in s 31(2) was described by Gallop J in McMillan v Territory Insurance Office.[12] The respondent says that the claim was not made as soon as practicable after the change of circumstances and should be rejected in the exercise of the discretion, pointing to the long period, about two years and nine months, between the alleged occurrence and the claim for variation.
• [99] The respondent also states that it has suffered prejudice because the original file was lost, there is no opportunity to obtain contemporaneous radiological reports and there is no opportunity to contact relevant witnesses involved in the original accident. I am not convinced that there was any prejudice to the respondent as alleged. Although the original file appears, on the respondent's evidence, to have been either lost or destroyed, the respondent was, as is acknowledged in its letter to the applicant of 23 March 2023,[13] able to replicate the file. As to the ability to contact witnesses, I note that Mr Riley, the driver of the vehicle which caused the accident gave evidence in the hearing, and police reports were available. As to the lost opportunity for investigation, there is relatively extensive medical information referred to in the file which includes x-ray reports form 2004 and 2013 and MRI and CT reports from 2017 and ongoing. There is in my view no significant prejudice to the respondent in not having the opportunity to conduct investigations between January 2016 and October 2018 in view of the investigations which were done from 2017. To the extent that the respondent relies upon a lost opportunity prior to January 2016, that is an ordinary incident of the making of a claim for variation and does not constitute relevant prejudice in the circumstances. I also note that at no time after the making of the claim for variation in 2018 did the respondent refuse to consider the claim other than on its merits.
• [100] The respondent suggested, but did not strongly argue, that the claim was not made as soon as practicable. The applicant's evidence was that after he closed the business in 2016 he thought that he would be able to continue to work as a parts interpreter with Ashdown Ingram, and did so for a number of years. The applicant said that for a couple of years he was able to carry out the requirements of the parts interpreter position. At that stage it appears that if the applicant had an increased loss of earning capacity it was not one which would translate to an entitlement to weekly benefits under the Act. It was only when he began to realise that he was having difficulty with the parts interpreter position, which happened progressively from June 2017, that he sought further medical assistance and, ultimately, made the claim for variation. The variation claim appears to have been lodged relatively quickly after the applicant received advice from Dr Goodhand in September 2018. In my view this history provides an explanation as to why the applicant did not make the claim before October 2018 and, in the circumstances, it was open to the applicant to argue that the claim was made as soon as practicable. However, that is not a matter which I need to decide in view of my findings above.

• [101] The orders are as follows:
  1. The application is dismissed.
  2. The respondent's decision rejecting the applicant's claim for variation of benefits under the Act is confirmed.
  3. I will hear the parties as to costs.

[1] Motor Accidents (Compensation) Act (NT), s 4(1). The Motor Accidents (Compensation) Act as it was on 29 July 2004 (in force 17 March 2004 - 1 July 2007) applies to the applicant's entitlements because subsequent amendments apply only to accidents occurring after their respective commencement dates. In accordance with the transitional provisions at sections 43, 46, 47 and 49 of the Motor Accidents (Compensation) Act 1979 (NT) it is the date of accident, not the date of onset of injury, or any subsequent claim for variation, which determines the version of the Act which applies.

[2] The Motor Accidents (Compensation) Act (NT) as it was on 29 July 2004 (in force 17 March 2004 - 1 July 2007) applies to the applicant's entitlements because subsequent amendments apply only to accidents occurring after their respective dates. In accordance with the transitional provisions at sections 43, 46, 47 and 49 of the Motor Accidents (Compensation) Act 1979 (NT) it is the date of accident, not the date of onset of injury, or any subsequent claim for variation, which determines the version of the Act to apply.

[3] Motor Accidents (Compensation) Act s 4.

[4] Collman v Territory Insurance Office. [2002] NTSC 8, [5] - [6].

[5] Motor Accidents (Compensation) Regulations 1984 (NT), r 4A.

[6] Rodinelli, R.D., et al, Eds, Guides to the Evaluation of Permanent Impairment 6th Edition, American Medical Association, USA, p 562. Based on the combined values table at p 604 of the Guide, the combined value of whole person assessments of different areas of the spine of 21 percent and six percent is 26 percent.

[7] Described by Dr Bonkowski as "little beaks on the edges of the vertebrae" and "one of the hallmark features of cervical degenerative spinal disease".

[8] March v E & MH Stramere Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515-519.

[10] See also discussion in McDonnell v Darwin City Council [1997] NTSC 139; (1997) 26 MVR 248, 252 as to the application of that test to the definition of "accident" in the Motor Accidents (Compensation) Act.

[11] Compared with, for example, the different regime in the Return to Work Act 1986 (NT), s 80 which requires notice of the injury.

[12] [1988] NTSC 58; (1988) 57 NTR 24.