Xerri v Transport Accident Commission [2025] VCC 782

s93(17)(a) - "a serious long term impairment or loss of a body function". 2. The body function pursuant to sub-paragraph (a) relied upon by the plaintiff is the spine.[1] 3. The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. 4. In forming a judgment as to whether the consequences of an injury are "serious", the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as "at least very considerable" and "more than significant or marked"?[2] 5. The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[3] 6. The plaintiff swore two affidavits and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material. 7. The plaintiff's case was that there were serious consequences of his spinal impairment with constant disabling back pain, disabling him from his work and from his preferred activities. While he has had intervening hypertension and heart issues, these are well addressed. He is left with neck and back pain that is not going away and has not been relieved by treatment.[4] 8. From the defendant's perspective, the issues were Peak Engineering,[5] having regard to the plaintiff's significant comorbidities, range in that context, but also capacity, with the plaintiff having only worked sparingly in the twelve to eighteen months before the accident. Further, there was medical opinion that the plaintiff had a pain syndrome, not organically based, among a range of other health problems.[6]

1. The plaintiff is presently aged sixty-one, having been born in October 1963.
2. As at the said date, he had just finished a period of work as a casual labourer through labour hire firm, Fetch Personnel Pty Ltd ("Fetch"). He had also regularly performed casual maintenance work at Loy Yang Power Station before the said date.[7]
3. He was not working at the time of the accident but was on Centrelink and seeking work. He had been on and off Centrelink payments in between performing "shutdown work".
4. The history some doctors recorded that he was working fulltime as a rigger at the time of the accident was incorrect and may have come about by way of a misunderstanding due to this "shutdown" work prior to the accident. He had previously been capable of working full time and used to perform "shutdown" work in the Latrobe Valley power stations which was sporadic by nature. If a "shutdown" came up, he would take the work.[8]

1. Cross-examination initially focussed on the plaintiff's pre-accident employment, it being suggested to him that he had overstated his work history in his affidavits.
2. The plaintiff last worked in the building of the Bunnings plant at Warragul, that job having been found for him by Fetch.[9]
3. He consistently told medical examiners and also confirmed in his viva voce evidence, that he had not worked since the accident as a result of his injuries.[10] He was not working as a rigger dogman when he had the accident.[11] He had just finished work with Fetch.[12]
4. Having been taken to a summary of his earnings prepared by his solicitor, setting out he only earned $4,000 with Fetch in the 2019-2020 financial year, last working in March 2020,[13] the plaintiff did not recall whether he worked any other jobs or not, but he knew it was a bad time through COVID, and Loy Yang closed then.[14] He could not recall if he last worked in March 2020. He was not sure. He cannot remember, in the eighteen months before the accident, not having worked. It was too far back.[15]
5. He had last worked fulltime when he was in Queensland.[16] He worked for Aldeco. Full-time work in construction "is just about impossible".[17]
6. Before the accident, if any work came up he would take it. He has no qualms about working. If any work did not come up, in the interim, he was on Centrelink; and if work came up, he "would go there".[18]
7. In re‑examination, he confirmed he was going to go to work in Adelaide as a rigger dogman at the time of the accident. Had it not been for his accident injuries, he could have done that job - "no problem". He has now recovered from his heart issues.[19]

1. The plaintiff was cross-examined on clinical notes from United Medical Centre detailing his treatment from 17 July until 5 November 2020.
2. Immediately prior to the accident, his health was "all right". He was willing to go to any job - "In actual fact (he) was going to go to Adelaide on a job that he was negotiating through a friend."[20]
3. He agreed that he told doctors he was in good health prior to the accident and that he was ready, willing and able to go to work. He thought he did have a problem with his shoulder in the three months prior to the accident.[21] He agreed he probably had shoulder issues in June 2020.[22] He knew he had pains in his shoulders, and remembered something about his rotator cuff.[23]
4. He could not remember being prescribed Panadeine Forte for his shoulders. It was highly unlikely. If the records said he had an ultrasound of his shoulders, it probably happened. He did have injections of both shoulders.[24]
5. He agreed he was prescribed Endone for his shoulders, and is still taking it to this day.
6. He could not remember having a disagreement with his GP on 4 August 2020 about his medication or being rude to his GP, using the "f" word. Why would he? While that note read - "Patient started yelling at me and saying he doesn't like taking tablets", he did not yell at doctors. He goes there to get treatment.[25]
7. He was hospitalised with pneumonia for a couple of days in 2019. He did not know "what he had" when he presented to the Hospital with pneumonia, when told the hospital notes included a complaint of severe back pain - "If that's part of pneumonia."[26] It was too far back to know what he felt and what he told the Hospital. He just felt horrible, and it got worse and worse. He was completely out of it. He could not remember feeling back pain then. They had him hooked up to a machine. That was all he could recall.[27]
8. When asked whether he was told by his GP in August 2019 that he may have a condition called ankylosing spondylitis, he "did not even know what it was".[28] He could not recall having any conversation with his GP about any spinal condition. He did not accept the doctor sent him for some scans of his back, but if it was in the records, then he went there.[29]
9. The plaintiff agreed he had had sleep apnoea for many years, and regularly used a CPAP machine. He had seen a number of different doctors, including Dr Sasse, about that condition.[30]
10. When his GP noted poorly-controlled diabetes on 4 August 2020, the plaintiff was probably taking the wrong tablets. He could not recall being warned about diabetes before the accident.[31]

1. On the said date, the plaintiff was making a left turn in his car out of the Woolworths carpark in Warragul. He quickly slowed to complete a stop on Victoria Street; however, due to traffic, another vehicle then struck his car from behind ("the accident").
2. The driver behind him had followed him but there was traffic coming down a steep hill approaching her, and she told him she had accelerated to avoid the oncoming traffic. She ran into the rear of his vehicle after having accelerated heavily.
3. The collision was with his towbar and rear bumper bar, step and spare wheel carrier which was crushed. The front of the other driver's car was damaged as she had run up under his car.
4. The damage to his car was probably minor because he could still drive it. The other driver hitting his towbar stopped her car from going any further.[32]
5. He did not claim his property damage on his insurance. His claim was covered by the other driver's insurance company.[33]

1. After the accident, the plaintiff suffered immediate pain in the neck and shoulders; however, he took himself home, thinking he was alright and that he would recover with rest.
2. He continued to suffer pain in his neck and shoulders and, three days later, he consulted his GP, Dr Guan, who referred him to Latrobe Regional Hospital ("LRH") and arranged for an ambulance. He underwent a CT scan and was also referred for physiotherapy.
3. He first consulted Dr Frazer Ryan, physiotherapist, on 28 October 2020, at which time he was suffering pain in his middle and lower back. In December, he was referred to Metro Pain Group for pain management.
4. He first consulted Dr Stephen Nutter, pain specialist, on 9 February 2021. At that time, he was being prescribed Endone by his GP and taking daily ibuprofen.
5. He underwent a whole body scan on 10 March 2021.
6. On 20 August that year, he had medial branch blocks at C5-6 and underwent branch blocks to his cervical spine on 25 February 2022.
7. Dr Nutter recommended he undergo medical branch blocks to L3, L4 and L5 levels of his spine; however, the defendant initially denied funding, ultimately accepting liability on 18 January 2023.
8. As at February 2023,[34] he was taking Naproxen for his pain and occasionally Endone when it was at its worst, although he tried to avoid taking it.
9. He no longer had physiotherapy as the defendant no longer funded it, but he was still having hydrotherapy.
10. Following the cervical spine branch blocks in February 2022, Dr Nutter sought approval to perform radiofrequency denervation at C5-6 on the left, followed by the right; however, funding was denied on the basis of the pain chart that was recorded following the branch blocks in February.
11. He stopped seeing Dr Guan at United Medical when that doctor "disappeared". He has been seeing doctors at Trafalgar Medical consistently since 2022.[35]
12. On about 8 March 2023, he attended Dr Gavin Weekes, pain specialist, on referral from his GP. He was sent for an MRI scan of his cervical and lumbar spine, which he underwent on 22 March 2023.
13. On about 3 May 2023, he attended Dr Weekes, who explained findings of the MRI scan of his lumbar and cervical spine. He was given the option of having bilateral L5-S1 transforaminal epidural injections and understood a request was subsequently made for funding.
14. On about 29 May 2023, Dr Weekes performed a bilateral L5 nerve root block. The plaintiff was next seen on 14 June 2023, having obtained a couple of days' relief from the nerve block. He was subsequently referred to Mr Philip Sheard, orthopaedic and spinal surgeon.
15. On about 5 December 2023, the plaintiff underwent heart surgery by Mr Adam Zimmet, cardiothoracic surgeon, at The Alfred, having been diagnosed with blocked arteries. He made a good recovery after surgery.
16. On or about 16 May 2024, he underwent a nuclear medicine bone scan and x-ray of his cervical and lumbar spine organised by Mr Sheard.
17. On about 17 May 2024, he underwent an MRI scan of his cervical and lumbar spine at Mr Sheard's request.
18. On about 12 December 2024, he underwent a series of blood tests for rheumatoid factors after being referred by Mr Sheard. He understood these were returned as negative.
19. On about 5 February this year, Mr Sheard referred him back to Dr Weekes.

1. As at February 2023,[36] he suffered neck pain radiating into both shoulders. He had difficulty lifting either arm above shoulder height and found it difficult to rotate his neck without increased pain. He also had lower back pain radiating to both legs.
2. He had difficulty sleeping and suffered increased pain when he lay on either side. He had experienced difficulty sleeping for some time due to sleep apnoea and had used a CPAP machine; however, his neck and back pain had made his sleep even worse and he often struggled to sleep for more than two hours at any time.
3. He lived alone and, due to his lower back pain, had difficulty bending. Simple tasks such as tying his shoelace or cutting his toenails were difficult.
4. He relied on his daughters to help do most of the housework when they visited, although he tried to do lighter chores. He used to love gardening at home but it was too hard for him now due to his neck and back pain.
5. He tended to have to change his posture regularly due to his neck and back pain.
6. He found it very hard to drive due to increased back pain and had difficulty rotating his neck without worsening pain.
7. He used to enjoy fishing and hunting as often as he could but no longer did these activities because of his spinal pain. He tried to go fishing or hunting every week if his work hours allowed it, but he was now unable to go fishing or hunting. He had tried but found that walking on an uneven surface, standing or sitting for prolonged periods, or the rocking of a boat all caused him increased pain.
8. He had always done manual work. He could not now do the work he was previously capable of performing given his neck and back pain. He then had no idea what work he could possibly perform.
9. He had always been a reasonably easygoing person but was now constantly frustrated. He was very anxious and his constant pain, in particular the effect it had had on his enjoyment of life, had changed his personality and he now had a very short fuse and lost his temper easily.

1. As at 11 April 2025,[37] his spinal injury and psychological injury had largely remained the same or worsened.
2. He currently experiences ongoing pain in his lower back and neck. It is a dull aching pain which does not go away and worsens with actions that require him to lift, bend, twist his torso, pull, reach and exert force through his spine. As a result, he tries to limit tasks and activities that increase his pain but sometimes that is unavoidable.
3. He separately experiences pain in both shoulders, particularly when he lifts his arms above shoulder height.
4. The pain in his lower back and neck is the worst pain, followed by the pain in his left shoulder and separately his right shoulder. The pain in both shoulders is similar.
5. Occasionally, he experiences pain down his leg but that is not a constant feature of his pain.
6. He continues to see Dr Verbeek, GP, at Trafalgar around one or two times a month.
7. He is no longer undertaking hydrotherapy exercises as funding was terminated by the defendant.
8. He now takes the following medication:

(a) Endone tablets, one to two times per day depending on pain levels;

(b) Panamax tablets, up to six per day;

(c) Ozempic, once weekly for diabetes;

(d) Xigduo XR, 1000 milligrams, two per day for his diabetes.

1. He has difficulty standing for long periods or walking for anything other than short distances. If he stands for too long, he experiences excruciating pain in his lower back and needs to rest by lying or sitting.
2. He continues to experience disturbed sleep as a result of his lower back and neck injury primarily and, to a lesser extent, his left shoulder, and separately his right. He continues to wake every few hours due to low back and neck pain, as it is difficult to find a comfortable position.
3. He continues to use a CPAP machine to assist his sleep apnoea, but he is woken by lower neck and back pain. When he wakes, he generally sits in the lounge room or takes a hot shower, depending on the severity of the pain.
4. As a result of his lack of sleep, he wakes up tired and unrefreshed in the morning.
5. He continues to have difficulty performing domestic tasks and remains heavily reliant on his daughters pretty much day to day, with tasks such as vacuuming, cleaning, changing beds, cleaning the bathroom, and heavier tasks he cannot do due to the pain he experiences from bending, twisting, reaching and engaging in more rigorous activity. He cleans the toilet and generally cooks for himself. He cannot cut his toenails and needs help and also has to use a device to put on his socks. He wears slip-ons rather than shoes with laces because of his problems tying them up.
6. Compared to what he was able to do before his injuries, he is significantly restricted in his ability to care for himself and perform tasks around the house. The defendant now pays for someone to come to the house every fortnight and cut the lawn whereas previously, he was unrestricted in these activities and was able to complete them without assistance.
7. He continues to drive short distances and does so with pain due to the movement of his lower neck and back. Pre-injury, he was unrestricted in his ability to drive and enjoyed going for longer drives to engage in fishing and hunting activities, as well as going for holidays.
8. Due to the pain and restriction from his lower back and neck primarily, and to a lesser extent his shoulders, he has not been able to return to previous hobbies of fishing or hunting, which he greatly misses. He had tried fishing on one occasion about two years ago at Blue Rock Dam/ Rhyll at his physiotherapist's suggestion, but had difficulty coping with the rough and uneven surfaces due to his lower back pain, and separately his neck, and required the assistance of other fishermen to get back up the bank. [38]
9. He has not been fishing since and was greatly embarrassed that he needed this help. He would not cope with the rough and uneven surfaces and long walking required to go hunting due to his lower back and neck pain.
10. It was fair to say he was not going hunting just before the accident because of his shoulders, but he was still fishing. He then said he would have been doing both activities, even while taking Endone, but then said, "Let's face it, if I was sore I wouldn't be going fishing, but if I felt all right I would be."[39]
11. He agreed he was "taking it easy" prior to the heart operation. He was not fishing or hunting at that time.[40] He did not think he would have been doing those activities with high blood pressure, but he "did not check his blood pressure all the time." He would definitely not have been fishing or hunting with the more recent worsening of his shoulders.[41]
12. In re-examination, he said he would be able to go fishing and hunting now, had it not been for his neck and back pain.[42]
13. Given the significant restrictions and pain he now experiences in his lower back and neck, and separately his shoulders, he believes he would not be capable of performing regular and reliable work for any employer. He also requires daily medication to control his lower back and neck pain and would have difficulty attending work on a punctual basis.
14. His mental state has not improved and he continues to suffer frustration and difficulty in dealing with his circumstances. He has low tolerance levels for his frustration and continues to experience difficulty controlling his temper at times.
15. He becomes frustrated that he cannot do what he used to and largely keeps to himself now. He has lost friends as a result of his injuries and now has reduced social contact as a result, which he finds isolating and difficult to deal with, and makes him feel worthless to a degree.
16. He worries a lot about the future and the ongoing pain he has in his back, and separately his neck. He does not believe he would be capable of now returning to work fulltime due to his pain and restrictions from his accident injuries and is fearful he will be limited in his ability to work in more physical roles on a permanent basis.

1. The plaintiff was cross-examined in detail on Dr Verbeek's clinical notes from 1 June 2023 until 16 April 2025.
2. As at June 2023, he agreed he had seen a specialist cardiologist at Warragul, Dr Choong. He was not diagnosed with an enlarged heart, but he was seeing his GP at that time and told further tests would be done. He was also told about keeping his blood pressure down, keeping it under control.[43]
3. He agreed he was complaining of shortness of breath on 31 August 2023. The doctors thought he might have had asthma. He was shifted from Ventolin to Symbicort.[44]
4. He was diagnosed with severe triple vessel disease around that time. He had an angiogram, and they found he had three blocked arteries and that he needed a bypass. He ultimately underwent heart surgery before Christmas in 2023, having been on a waiting list.[45]
5. Post surgery, he had a problem with a wound dressing, where they pulled the vein out of his leg and the donor site just would not heal. The doctor thought he might have had a DVT, but he was ultimately cleared of that and sent for an x‑ray.[46] He accepted at the time, the doctor was concerned the valve was not working properly and further investigations may be needed.[47]
6. There were further problems with blood pressure noted in February 2024. He could not recall his blood pressure was consistently high around that time, but the doctor changed his medication and got it right.[48]
7. He agreed, as of March last year, his blood pressure was still up and down, and that he had shortness of breath, if that was noted by his GP.[49]
8. Endone has been prescribed for lower back pain. It has been consistently prescribed from the time it was prescribed for his shoulders. He cannot take codeine-based medicine like Panadeine Forte.[50]
9. The plaintiff had COVID in June 2024.
10. In August last year, it was probably right he had lots of aching in his shoulder and back.[51] It was correct that both shoulders seemed to be getting worse.[52]
11. He agreed if the notes recorded a shortness of breath in September last year, that was probably right.[53] He now feels all right. He thought he recovered quite well over this issue with the heart operation. That operation was not as big a deal as he thought it would be.[54]

1. The plaintiff attended the Emergency Department on referral from his general practitioner on 15 October 2020 following two days of midline cervical spine pain. It was then noted:

"Simple rear ended collision MVA two days ago patient was in car in front driver was wearing seatbelt no head strike no LOC recalls being thrust forwards and backwards in a seat. Ongoing neck pain and bilateral shoulder pain since event. Was ambulatory at home post-event."

1. A CT scan was carried out, following which it was concluded there was no fracture.
2. Hospital notes further indicated:

"PT is a 57 year old man who was involved in an MVA two days ago. Patient was at a standstill at roundabout when another car has pulled out from the side street and rear ended the car he was in. Mild damage to the car, seatbelt worn and nil initial pain or injury. Approx one hour post-accident patient has begun to experience pain in his neck. Patient has been mobilising for the past two days with increasing pain so has presented to doctor clinic today and ambulance called. Patient has nil deficits or sensory changes. Pain rated as 8 out of 10 but refusing IVC so IN Fentanyl administered with good effect. Patient transferred to LRH for further investigation."

Gippsland Physiotherapy Group, Dr Frazer Ryan

1. On the plaintiff's first visit in December 2020,[55] overall his presentation was consistent with a moderate to high level whiplash injury resulting in central sensitisation and persistent pain through the lower cervical and thoracic facet joint regions.
2. In July 2021, Dr Ryan wrote that the plaintiff continued to report increased level of pain and central sensitisation through the neck region consistent with whiplash. He also continued to report ongoing lower back pain which limited his current functional capacity. That pain had been present since the accident, although generally less intense and less restrictive than the neck pain. He recently reported an increased level of pain through the lower back and an MRI scan was recommended.
3. Funding was sought from the defendant for the purchase of a lower back lumbar support in August 2021 and in November that year, funding was sought for a local gym/swim facility.

1. On referral in February 2021, the plaintiff's GP advised that the plaintiff had neck pain and upper back pain for two months following the accident. There had been minimal improvement with physiotherapy in the last eight weeks.
2. When first seen in February 2021, the plaintiff complained of pain at the base of his neck with radiation to both shoulders - on average 8/10.
3. The plaintiff did describe a pre-existing issue with both shoulders, particularly the left, and that he had had a number of steroid injections with effect. He described no pre-existing cervical spine issues.
4. Dr Nutter then recommended that the plaintiff should continue a multidisciplinary and multimodal approach to his management with conventional medical management including physiotherapy and hydrotherapy. He recommended a SPECT CT scan and prescribed amitriptyline, which should help with depression, sleep and pain. He anticipated approaching the TAC to request some interventional techniques.
5. Dr Nutter next saw the plaintiff on 13 August 2021, after the medial branch blocks, as a result of the tests being positive. He then sought, accordingly, to proceed with control blocks bilaterally at C5 and 6. At the same time as the control blocks, he wished to perform medial branch blocks at L3, L4 and L5 to further diagnose back pain.
6. In March 2022, Dr Nutter requested funding for radiofrequency denervation at C5‑6.
7. Dr Nutter advised the TAC in August 2022 that the plaintiff had been complaining of low back pain as a result of the accident. He sought funding for medial branch blocks bilaterally at L3-4-5.

1. Dr Verbeek referred the plaintiff to Dr Weekes, pain specialist, in January 2023 for consultation in regard to his lower back and neck pain secondary to the accident. He advised that the plaintiff had previously been seeing Dr Nutter but had not had much success in alleviating his symptoms and he would like a further opinion and management.
2. The plaintiff had found this very hard to deal with as he was previously very active but, due to pain, was now restricted to a sedentary lifestyle which was not helping his mood.
3. He noted that the defendant had recently accepted both the back and neck injuries were secondary to the accident.

1. The plaintiff first attended in March 2023. His symptomatology then was lower back pain with bilateral radiation down both legs affecting the left more. The plaintiff described back pain worse than the leg pain and had a pain score of 6/10. He also described ongoing neck pain but mainly radiation into both shoulders, with the neck pain worse than the shoulder pain.
2. The plaintiff was then continuing on Endone and Nurofen.
3. On examination, there was no obvious neurological deficit of upper or lower limbs; however, shoulders were limited in movement and abduction to approximately 90 degrees. The plaintiff had quite significant tenderness of both sacroiliac joints.
4. It would be worth getting some fresh imaging so other treatment options could be gone through, noting the plaintiff had presented with severe pain and functional decline since the accident.
5. Dr Weekes saw the plaintiff on 3 May 2023. Following the MRI scan, he thought the plaintiff had more definitive radiology signs of his lumbar spine and had spoken to him about proceeding with bilateral L5-S1 transforaminal epidurals.
6. He saw the plaintiff again on 14 June 2023, after the bilateral L5 nerve root block. At very best, the plaintiff got a couple of days of pain relief.
7. Noting the plaintiff had evidence of bilateral L5 nerve root irritation on his MRI, and he had evidence of very severe neuroforaminal stenosis on his cervical MRI, the plaintiff was certainly open to referral to a neurosurgeon to discuss surgical options as blocks to the neck and back had been largely ineffective.
8. In his report to the plaintiff's solicitors of December 2023, Dr Weekes advised that the plaintiff was presenting with lumbar and cervical spondylosis perhaps with a possibility of bilateral L5 radicular pain. Those conditions had been materially contributed to by the accident.
9. There was an organic basis or physical cause for the condition.
10. The plaintiff was then awaiting neurosurgical review and that may lead to spinal structural surgery.
11. The plaintiff's diagnosed conditions were causing an incapacity for him to return to the workforce.

1. The plaintiff was first seen on 29 April 2024. Mr Sheard then noted the plaintiff had a whiplash injury and that he developed back pain approximately two months after the accident.
2. Following examination, he arranged a SPECT-CT and up-to-date MRI scans, the plaintiff having shown a reduced range of movement of his cervical spine in all directions and tenderness and a marked reduction of range of movement in the lumbar spine. There were no neurological features.
3. On review on 24 June 2024, the plaintiff's main problem was neck and back problems with no radiculopathy. Flexion/extension views of neck and lumbar spine showed no instability. The SPECT-CT was essentially quiescent apart from the suggestion of disc or ankylosing spondylitis and he arranged a blood test to look for those at that time.
4. On review on 5 February 2025, inflammatory markers were normal. The plaintiff continued to complain of neck and back pain. He advised him there was nothing he could do for him surgically and referred him back to the pain specialist and also a rehabilitation specialist.
5. The diagnosis was exacerbation and aggravation of pre-existing asymptomatic lumbar spondylosis. The accident was a significant contributing factor to the condition. There was no evidence of any pre-existing condition.
6. The plaintiff had marked restriction with regards to pain and reduced range of movement in his lumbar spine which would restrict him from standing, sitting and lifting, and particularly repetitively with rotation, for the foreseeable future.
7. While not taking an employment history, he believed the plaintiff remained permanently incapacitated for his pre-injury employment as a rigger scaffolder because of significant low back pain and reduction in range of movement.
8. The plaintiff's prognosis can be considered guarded as he still has significant symptoms over four years following the accident. He has no surgical option.
9. The plaintiff has marked restrictions with regards to pain and reduced movement of his neck which will restrict him from standing, sitting and lifting, and particularly repetitively with rotation on a permanent basis.
10. The plaintiff was reviewed on 5 February 2025, and not earlier, as the defendant would not approve a follow-up. He did not have any idea why it was not accepting the plaintiff's claim. So far as he was concerned, it was accident-related and his inflammatory markers were all normal. The plaintiff continued to complain of back and neck pain. There was certainly nothing he could do for the plaintiff surgically and he had referred him back to Dr Weekes and also Ali Mehr for his expertise in rehabilitation.

1. The plaintiff underwent an x-ray of the thoracic spine on 7 November 2020, a whole body bone scan with SPECT on 10 March 2021, a CT scan of the lumbosacral spine on 8 July 2021, and an MRI scan of the cervical and lumbar spine on 22 March 2023.
2. The March 2023 MRI was reported to show mild spinal canal stenosis of C2-3 and C4-5 with minor cord compression at C4-5. The cord signal remains normal. There was significant bilateral C5-6 and right +/left C6-7 foraminal stenosis. There was moderate spinal canal stenosis at L4-5 with likely compression of the bilateral descending L5 nerve roots. There was mild spinal canal stenosis at L3-4.
3. Later investigations included an x-ray of the cervical and lumbar spine and nuclear medicine bone scan on 16 May 2024 and an MRI scan of the cervical and lumbar spine the following day.
4. The 2024 MRI was reported to show moderate canal narrowing in the cervical spine from C1 to C2-3 level secondary to thickening of the cruciform ligament and tectorial membrane. There was moderate canal stenosis in the lumbar spine secondary to mild disc bulge with marked ligamentum flavum.

1. Mr Kossmann examined the plaintiff on 1 August 2022 for the purposes of an AMA assessment.
2. The plaintiff was then complaining of pain in the cervical spine, radiating into both shoulder joints, difficulty lifting his arms above shoulder height, back pain radiating to both legs and restricted movement of both shoulder joints.
3. The diagnosis was aggravation of previous asymptomatic cervical and lumbar spondylosis.
4. The plaintiff's lumbar spine condition had substantially stabilised.
5. The prognosis regarding the cervical spine was guarded and the plaintiff would require further treatment with pain medication and anti-inflammatories, and may also benefit from physiotherapy. The plaintiff's prognosis regarding the lumbar spine was also guarded. His prognosis relating to his bilateral shoulder joints was unclear, with the exact reason for the symptoms being unclear.
6. The plaintiff had no work capacity as long as he suffered from pain issues affecting his spine which radiated into upper and lower extremities and from significant movement restrictions in both shoulder joints and left hip.
7. The plaintiff has no capacity to return to any physical work or work where he has to walk long distances, walk on uneven ground, walk upstairs and downstairs, walk on inclines and declines, climb up and down ladders, kneel or squat, use his upper extremities constantly, work above shoulder height or lift items weighing more than 2 to 5 kilograms.

1. The plaintiff submitted a claim for compensation to the TAC, claiming severe whiplash lower neck injury.
2. The plaintiff described the accident as follows:

"At around 12.45pm on 13 October 2020, I was making a left turn in my car out of the Woolworths care park in Warragul. I quickly slowed to a complete stop on Victoria Street, however, due to traffic. Another vehicle then struck my car from behind. I suffered immediate pain in my neck and shoulders in the incident, however I took myself home, thinking I was alright and that I would recover with rest.

I continued to suffer pain in my neck and shoulders, however, and on 15 October 2020, I consulted my GP, Dr Patrick Guan. Dr Guan referred me to Latrobe Regional Hospital, and arranged for an ambulance to transport me. A CT scan of my cervical spine revealed, I believe, a prominent calcification of the anterior and posterior longitudinal ligaments between the C2 and C6 levels. I was also referred for physiotherapy treatment."

1. By letter dated 22 October 2020, the TAC accepted the plaintiff's claim for medical treatment.

1. The plaintiff's vehicle turned left out of Woolworths EWG car park and stopped after a short distance due to traffic banking back at a roundabout. A driver behind did not realise the plaintiff's car had stopped due to traffic and struck the rear of it with minor damage to both.
2. The plaintiff attended the Moe Medical Clinic on 15 October 2020 and was taken to LRH for precautionary scans due to neck pain and possible whiplash.
3. There was a series of photographs provided by the other driver and a statement from her in which she described the accident as very low speed impact and her airbag did not deploy. The damage to her vehicle was minor. The bumper had a small dint and the passenger front side panel was pushed out of place and repaired. She remembered only very minor damage to the bumper bar of the plaintiff's vehicle.

1. The plaintiff attended the Emergency Department at LRH in May 2018 complaining of chest pain radiating to the shoulders and upper back.
2. The plaintiff was an in patient at LRH between 16 and 19 July 2019. The principal diagnosis was community-acquired streptococcal pneumonia, back pain, constipation and hyperglycaemia. The plaintiff had presented to the Emergency Department with severe back pain, shortness of breath and subjective fevers with chills and rigors. The reason for admission was back pain and pneumonia.
3. In terms of back pain, there was a CT angiogram performed which ruled out aortic aneurysm dissection, however, incidentally found sacroiliac joint fusion and thoracic spine syndesmophytes. Given there were no other symptoms suggestive of ankylosing spondylitis, they had not done further investigations. However, a spine pelvic x-ray with GP now for baseline, and repeat in two years, maybe useful diagnostically.
4. The plaintiff presented at the Emergency Department at LRH on 23 July 2019 with pain to the right ribcage and a history of pneumonia.
5. The plaintiff's GP at United Medical Centre referred him to Dr Boers at Maryvale Private Hospital on 30 August 2019 regarding an incidental finding of joint effusion and sacroiliac joint fusion and thoracic syndesmophytes while the plaintiff was admitted for pneumonia and advised by the Hospital to do baseline spine x‑rays. This was forwarded and noted that the plaintiff reported some mild restriction in his neck and left hip. There had been the x-ray of the full spine and pelvis of 15 August 2019.

1. Mr Rogers examined the plaintiff in October 2023. The plaintiff then complained of pain in the middle of the low back at the lumbosacral junction present most of the time, interscapular pain present most of the time, and pain on both sides and at the back of the neck and cracking of the neck present most of the time. There was bilateral shoulder restriction.
2. The plaintiff was not then having any regular treatment.

1. The plaintiff had a history of sleep apnoea and used a CPAP machine, was a Type 2 diabetic and was treated for hypertension.
2. There was an entry in the GP's notes on 15 May 2015 that the plaintiff had low back pain radiating to the right and left loin which had been investigated with renal tract ultrasound, which was normal.
3. On 23 July 2019, the plaintiff attended his GP due to right-sided pain which included pain in his back. There was an x-ray of the spine and pelvis on 15 August 2019 which demonstrated ossification of the anterior and posterior longitudinal ligament from C2 to C6, with similar findings in the thoracic spine.
4. In July 2020, the plaintiff complained of pain, stiffness and loss of range of movement in both shoulders and had x-rays and ultrasounds of both shoulders.

1. Neck movements were severely restricted in all directions. All movements of the thoracolumbar spine were restricted. There was no evidence of muscle wasting in the shoulders. Neurological examination was unremarkable.
2. He viewed the August 2019 x-ray of the spine and pelvis, the October 2020 cervical CT scan, the December 2020 thoracic CT scan, the 8 July 2021 lumbar CT scan and the March 2023 MRI scans of the lumbar and cervical spine.
3. The diagnosis was resolved soft tissue injury to the cervical spine without radiculopathy and also Chronic Pain Syndrome. All of the imaging demonstrated significant longstanding degenerative change.
4. The plaintiff's current symptoms were due to a chronic pain condition. There was no neurological deficit and the accident did not result in any structural injury to the cervical, thoracic or lumbar spine. The plaintiff's complaints of disability were due to his chronic pain state.
5. The plaintiff needed to be referred to a non-intervention pain specialist and he recommended Dr Lim. The plaintiff would also need a psychological/psychiatric assessment as part of the pain management process.
6. The plaintiff's prognosis was poor, as it was entrenched in a Chronic Pain Syndrome.
7. The plaintiff's reduced capacity in relation to activities of daily living, domestic and recreational activities is due to his chronic pain state, as is his pain and experience of disability.
8. The plaintiff's incapacity to return to work is due to his chronic pain state.
9. There has not been any aggravation or acceleration of the pre-existing degenerative conditions.

Associate Professor ("AP") Evangelos Romas, specialist consultant rheumatologist

1. AP Romas examined the plaintiff in December 2024.
2. The history was that at the time of the accident, the plaintiff was working as a rigger dogman.
3. The plaintiff reported headaches, neck pain with stiffness, sometimes cracking, dorsal spine interscapular pain and low back pain with no pain or paresthesia in the extremities. He rated his overall health as very poor. He reported the pain is almost as bad as it could be involving his neck and back, but also his "shoulders", (the neck pain radiating to the shoulders especially on the right) and hips (tThe low back radiates to both sides.)
4. On examination, there was severe neck restriction in all directions. Lumbosacral spine motion was uniformly restricted with no dysmetria, involuntary guarding or spasm. Neurological examination of the upper and lower limbs showed no neurogenic weakness. There were no clinical signs of radiculopathy.
5. The most recent MRI of the cervical spine of March 2023 showed a normal cervical lordosis, normal disc height at all levels, et cetera.
6. He diagnosed symptomatic cervical and thoracolumbar spondylosis without clinical radiculopathy or myelopathy and Chronic Pain Syndrome with central sensitisation.[56]
7. The accident likely caused a minor soft tissue injury to the cervical spine which had since resolved. Current symptoms were primarily attributed to pre-existing cervical and thoracolumbar spondylosis, DISH[57] and psychological factors contributing to chronic pain.
8. Imaging confirmed no acute spinal injury or significant progressing of degenerative disease.
9. The collision was of a low impact nature, making it unlikely to have caused structural spine damage and had not affected the constitutional spondylosis or DISH. Chronic spinal dysfunction and pain reflects constitutional factors such as the natural ageing process, the metabolic syndrome, with psychological overlay.
10. The plaintiff suffered at most a minor soft tissue injury in the neck in the accident with no permanent structural injury to any part of his spine. The physical injuries are considered resolved.
11. The plaintiff has chronic spinal pain with functional non-organic overlay; however, he is not suffering from organic pain; that is, nociceptive or neuropathic pain resulting from any soft tissue sustained at the time.
12. The plaintiff's chronic spinal pain is attributed to constitutional pathology (age-related spondylosis and metabolic-related diffuse idiopathic skeletal hyperostosis) which does not result from the accident, but from the ageing process.
13. Further treatment should focus on diabetic control, analgesia and anti-inflammatory medication and physio for constitutional spondylosis and DISH.
14. The plaintiff's now resolved physical injuries do not impact on domestic, recreational and leisure activities. Any claimed incapacity for work does not result from and is not materially contributed to by the accident.

1. A Centrelink document, "Personal Injury Request - Display benefit payments and taxation details" requested by the plaintiff's solicitors on 1 May 2023, set out that in the 2019-2020 financial year, the plaintiff earned (from 28 January to 28 March), $1,260, $1,071, $224 and $1,120.
2. In the 2018-2019 financial year, the plaintiff worked between 17 July 2018 and 26 February 2019 for Transfield, earning approximately $16,000.

1. There is no dispute the plaintiff suffered a spinal injury in the accident.
2. However, diagnoses range from an aggravation of lumbar and cervical spondylosis - treaters, Mr Sheard and Dr Weekes - to a resolved soft tissue injury - AP Romas and Mr Rogers (defendant's medico-legal examiners).
3. The radiology clearly shows longstanding degenerative change in the low back, and cervical level.[58]
4. The medical opinion relied upon by the defendant provides no path of reasoning when, why and how any accident contribution to the plaintiff's spinal condition ceased and was overtaken by a pre-existing degenerative condition. Further, neither examiner addresses the need for the number of spinal procedures undertaken by pain specialists, funded by the defendant, simply noting the procedures were "unhelpful".[59]
5. In any event, the plaintiff's evidence of ongoing spinal pain since the accident was not challenged.
6. There is no evidence of the plaintiff suffering significant spinal problems before the accident, although in 2019, when he attended LRH for pneumonia, there was a complaint of severe back pain, and spinal investigations were later ordered. There was no treatment for any spinal pain before the accident.[60]
7. The plaintiff clearly had shoulder issues before the accident and his shoulders still cause him problems that have required treatment. Any consequences of this non-compensable condition must be taken into account when considering whether his spinal impairment alone meets the tests of serious.[61]

1. As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[62]

"... the weight to be attached to the plaintiff's account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility."

1. The plaintiff's credit was intact. He gave evidence in a very straightforward manner.[63]
2. In my view, there were no credit issues in relation to his pre-accident work history.[64] His affidavits did not overstate the situation in this regard. He always had said he was not working when the accident happened. He was on Centrelink and seeking work.[65]
3. Further, it was not said by any doctor that the plaintiff was deliberately embellishing or exaggerating his symptoms.[66]

1. In Haden Engineering Pty Ltd v McKinnon,[67] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise inter alia what the plaintiff says about the pain (both in court and to doctors).
2. Albeit at times described by him as a dull ache, the plaintiff has constant lower back and neck pain which worsens on activity. He told AP Romas late last year, the pain was almost as bad as it could be, involving his neck and back, but also his "shoulders", the neck pain radiating to the shoulders.
3. This is his worst pain, followed by his left and right shoulder pain
4. His main problem when seen by Mr Sheard in June 2024 was neck and back pain.
5. This evidence was not challenged.
6. As a result of his back and neck pain and reduced range of movement, the plaintiff has difficulty bending, standing and sitting for prolonged periods, twisting and reaching affecting his ability to do household tasks and undertake all activities of self care.
7. The defendant now pays for someone to cut the plaintiff's lawn fortnightly - a task the plaintiff did himself pre accident without assistance.

1. What the plaintiff does about the pain (for example medication, rest, seeking medical treatment) is also relevant to the pain assessment.[68]
2. Significantly, after numerous investigations, he has required a range of spinal procedures that have resulted in little if any improvement of his spinal symptoms.
3. While there is no up to date report from the plaintiff's GP, treatment has mainly been by pain management specialists and more recently, orthopaedic surgeon, Mr Sheard, to whom the plaintiff was referred by Dr Weekes in 2023. He last saw the plaintiff in February this year when he referred him back to pain management.
4. The GP's notes were in evidence and the plaintiff was cross-examined extensively about his pre and post-incident condition, including his comorbidities.
5. Dr Verbeek, in his referral letter to Dr Weekes in January 2023, confirmed the plaintiff's ongoing complaints of neck and back pain since the accident, and advised the plaintiff was previously very active pre accident and was now restricted to a sedentary life.
6. The plaintiff has undergone a range of treatment, including physiotherapy, hydrotherapy and two bouts of pain management.
7. After first having physiotherapy, the plaintiff was referred to the Metro Pain Clinic, where he saw Dr Nutter in early 2021. Under his care, medial branch blocks at C5-6 were carried out in August 2021, branch blocks to the cervical spine in February 2022 and medial branch blocks to L3-4-5 in January 2023.
8. Dr Nutter also wanted to carry out radiofrequency denervation in March 2023 but the defendant denied funding for this procedure.
9. In March 2023, the plaintiff commenced pain management with Dr Weekes. He administered bilateral L5 nerve root blocks. He then referred the plaintiff to orthopaedic surgeon, Mr Sheard, in late 2023.
10. Mr Sheard, who saw the plaintiff three times, most recently in February this year, having decided surgery was not required, he sent the plaintiff back to pain management - a course supported by the defendant's medico-legal neurosurgeon, Mr Rogers, who thought the plaintiff needed to be referred to a pain specialist such as Dr Lim.[69]
11. While the plaintiff has been prescribed Endone for some time for shoulder pain, he also requires painkilling medication for spinal pain on a daily basis.[70]

1. Although the plaintiff has had sleep apnoea for some years, requiring the use of a CPAP machine and specialist referral, since his spinal injury he has additional issues with sleep, being woken by pain, difficulty getting to sleep et cetera. In early 2021, Dr Nutter prescribed amitriptyline to help with depression, sleep and pain.

1. The defendant described the plaintiff's evidence about his work leading up to the accident as "unreliable". The records disclose very little work in the period leading up to the accident, even allowing for COVID.[71] The Centrelink documents confirmed the plaintiff had been unemployed for a year. That was bolstered by the summary of the taxation returns, with no earnings from the 2021 financial year.[72]
2. Twelve months of unemployment was largely unexplained in the plaintiff's affidavits. At best it might be attributable to the difficulties he was having securing employment, noting he said he would work when he could, and he did not work when he could not find work, conceding in cross-examination it had been an extended period since he had worked fulltime hours.[73]
3. There is no reason to suppose this state of affairs - twelve months of a total inability to do anything - would have changed. That is all the more so, given the plaintiff's significant comorbidities: not only his shoulder, but his heart, for an extended period in 2023-2024; problems of shortness of breath; and more recently because of, as he frankly conceded, his worsening shoulder condition, requiring further cortisone injections.[74]
4. The plaintiff rejected this argument. While the plaintiff was not working at the time of the accident, he had had pneumonia in the second half of 2019, for which he was hospitalised, after which he had got back to work and worked until March 2020 - seven months before the accident - when COVID started. At the time of the accident, he was ready, willing and able to work, and had a job lined up in Adelaide.[75]
5. I do not accept that the plaintiff had effectively retired from the workforce before the accident on grounds of ill health or otherwise. While he last worked in March 2020, no work was available to him from that time for some months because of the pandemic. Loy Yang closed down. Significantly, he had been able to return to work after his bout of pneumonia in July 2019 until March 2020, seven months before the accident.
6. In my view, the plaintiff had a work capacity at the time of the accident which has been affected by his accident-related spinal injuries.[76] He has always done manual work. His work pre accident was sporadic. He was trying to get back to work at the time of the accident and had been offered a job in Adelaide which he intended to take up, had he not been injured. He has been unable to return to work since in a rigger role or any other capacity[77]
7. A number of medical examiners consider, as a result of his accident-related spinal condition alone, the plaintiff is unable to work in his pre-injury job or in any other role.
8. In August 2022, Mr Kossman thought the plaintiff had no work capacity as a result of his spinal pain issues. In June 2023, Dr Weekes considered the plaintiff's spinal condition was causing him an incapacity to return to the workforce. Earlier this year, Mr Sheard believed the plaintiff remained totally incapacitated for his pre-injury role because of significant low back pain and restriction of movement.
9. AP Romas and Mr Rogers considered the plaintiff was incapacitated for work - although this was on the basis of age-related degeneration or a chronic pain state. Neither examiner made any mention of a shoulder problem contributing to this incapacity.

1. The main hobbies the plaintiff enjoyed before the accident were fishing and hunting.
2. While obviously affected by his shoulder condition, despite the plaintiff's confusing evidence in this regard, he did attempt fishing two years ago at Rhyll and it was his spinal pain, not his shoulders, that gave him problems and he had to be helped up the bank by friends.
3. At the time of his heart issues in late 2023, the plaintiff would have been doing very little as he acknowledged but his evidence is that post surgery, he has not had ongoing heart issues or shortness of breath.

1. Since the accident, the plaintiff has found it very hard to drive for other than short distances due to back pain and difficulty rotating his neck.

1. In Peak Engineering,[78] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
2. In such circumstances:

"The Court must decide whether the consequences of the original injury are 'more than significant or marked, and ... at least very considerable'. For that purpose, it is necessary - so far as the evidence permits - to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury."[79]

(a) bound to identify, and exclude, the continuing consequences for the plaintiff of any non compensable injury; and

(b) when the consequences properly referable to the relevant injury were identified, identified them as "serious".[80]

1. The defendant submitted that the principles in Peak Engineering posed a difficulty for the plaintiff as he suffers form a range of comorbidities. There was no report from his treating GP, who would be well placed to comment on the competing causes of the consequences of which the plaintiff complained.[81]
2. The defendant submitted that what the Court has is a recorded history of difficulty with shortness of breath for an extended period of time on Dr Verbeek's records;[82] significant cardiac problems which forced the plaintiff to "take it easy" leading up to heart surgery; shoulder problems immediately prior, then re‑emerging in more recent times, requiring cortisone injections, and a pre-existing longstanding history of sleep apnoea. All had to be disentangled from the accident injury, and the Court satisfied the accident injury was serious.[83]
3. Despite the defendant's focus on the plaintiff's comorbidities, when one looked at the spinal condition alone, the plaintiff's evidence of pain was unchallenged, and it is clear that he has undergone a range of spinal procedures, albeit not surgery, which has not been of any lasting assistance.
4. By virtue of his spinal complaints alone, the consensus of medical opinion is that the plaintiff does not have a capacity for manual work - the only work he has done his whole life.[84]
5. Problems with bending, prolonged sitting or standing relate to his spinal condition alone, as do his sleep and driving issues.
6. While his shoulder pain impacts on some activities such as fishing and hunting, his back and neck issues also play a part as was apparent on his 2023 fishing trip to Rhyll.
7. Further, a serious injury can have its seriousness measured in part by a mental response to a physical impairment - the expected consequences of pain and an inability to do things.[85]
8. The plaintiff continues to suffer frustration and difficulty in dealing with his life post accident. He becomes frustrated that he cannot do what he used to and largely keeps to himself now.

1. In my view, the evidence does demonstrate that the cumulative impact of the identified consequences of the spinal impairment, excluding the consequences of any non-compensable injury, fairly described, satisfies the statutory test.[86]
2. Taking into account all the evidence, I am satisfied the plaintiff has a serious injury.
3. I am also satisfied, given the plaintiff's symptoms have continued for nearly five years since the accident, his spinal condition is long term. There will be no significant improvement in the future.
4. Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.

[1] Transcript ("T") 2 - psychiatric impairment not pursued

[2] See Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140-141

[3] Richards v Wylie [2000] VSCA 50; (2000) 1 VR 79

[5] Peak Engineering & Anor v McKenzie [2014] VSCA 67 ("Peak Engineering")

[7] First affidavit sworn on 2 February 2023 ("first affidavit")

[8] Second affidavit sworn on 11 April 2025 ("the second affidavit")

[55] Also seen by physiotherapist, Kadir Sungkar, at that practice

[56] No explanation why this is not organically based

[57] Diffuse idiopathic skeletal hyperostosis

[58] T73- 2023 MRI of the lumbar and cervical spine, Mr Rogers

[62] [2010] VSCA 69; (2010) 31 VR 1 at paragraph [12]

[68] Paragraph [11](b) of Haden Engineering (supra) per Maxell P

[79] Peak Engineering at paragraph [1]

[80] Peak Engineering at paragraph [2]

[81] T62; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916

[84] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326

[85] Winneke P in Richards v Wylie (supra) at paragraphs [17]-[19]

[86] Reyes v Tusk Group Pty Ltd [2025] VSCA 20 at paragraph [51]