Yzeiraj v TAC [2026] VCC 8

1. It was not in dispute that the plaintiff was involved in a transport accident on 2 December 2022 and the defendant accepted that she suffered a right foot and ankle injury. The defendant relied on relevant pre-existing conditions affecting both the low back and the right foot, as well as mental health issues, and whether there had been an aggravation of each of the conditions which could be described as serious. The defendant also submitted that the plaintiff had not disaggregated the impact of the impairments on each body function.

1. The plaintiff was born in September 1972 and is 53 years old. She was born in Albania but lived a significant part of her life in Greece.
2. She attended 8 years of schooling in Albania and then worked in Greece as a cleaner full-time for a doctor and his family, for approximately 17 years. She moved to Australia in around 2015 and upon arrival she undertook an English language course with AMES for approximately 6 months. She did not find work immediately and after a while started working as a cleaner for CSC Property and Maintenance Pty Ltd.[3]
3. She deposed that in relation to her pre-existing health, on about 28 February 2022, she underwent a bilateral breast mammogram and tomosynthesis and an ultrasound. On 5 March 2022, she experienced neck and upper back tightness with intermittent headaches and right plantar fascia pain for which she underwent physiotherapy.[4] She had a history of hearing loss and pain in her right ear as well as recurrent abdominal pain, fullness and dyspepsia.
4. On 28 October 2022, she underwent an X-ray of her chest and a CT scan of her abdominopelvic area. On 1 August 2022, she had pain intermittently present in the inner aspect of her right leg. She suffered from pelvic pain and ovarian cysts for which she had undergone many ultrasounds. She also deposed to having a history of depression and anxiety especially whilst trying to conceive through IVF but continually failing.[5]
5. In April 2018 she was a passenger in a car driven by her husband and involved in a transport accident. The vehicle was rear-ended, and she suffered a concussion. She did not submit a TAC claim for this.

1. The plaintiff deposed that she was on a packed bus intending to travel to see her general practitioner, Dr Athanasios Gouras. The bus was already crowded, and she was standing very close to the doors at the front of the bus. As the doors of the bus opened, her left foot got caught in the doors and she suffered immediate pain in her left foot which caused her to fall to the floor awkwardly on her right foot, hitting her head and rendering her unconscious. When she came to, she was assisted off the bus by another passenger, and at the tram stop, Yarra Trams employees called an ambulance to attend to her injury.[6]

1. She was taken to the Alfred Hospital where she underwent an X-ray of the right ankle and left great toe. She was diagnosed as sustaining a Weber fracture to the right ankle and given a CAM boot for her right foot and analgesia and was told to avoid weight-bearing for the following week on her right foot. On 4 December 2022, she attended, Dr Gouras. She reported pain in her right ankle and left big toe and could not walk without crutches.[7]
2. She attended Dr Gouras on 6 December 2022 and reported she was having trouble sleeping due to the pain and Panadol was not enough to deal with the pain. She also complained of feeling anxious.[8]
3. On 8 December 2022, she underwent an X-ray of her right ankle.
4. On 15 December 2023, she had an X-ray of her right ankle and a CT scan of her right wrist.
5. On 28 December 2022, she attended Dr Gouras for painkillers as she continued with right ankle pain.[9]
6. On 9 January 2023, she underwent an X-ray of her right ankle.
7. On 28 January 2023, she attended Dr Gouras complaining of back pain and disturbed sleep, and lowered mood.
8. On 9 March 2023, she was reviewed at the Alfred Hospital and reported difficulty with stairs since the accident as well as reporting an acute episode of back pain. She underwent an X-ray of her right ankle.[10]
9. On 16 March 2023, she commenced physiotherapy with Mr Dario Cusinato at Toorak Physiotherapy and Sports Therapy Centre. She underwent weekly physiotherapy treatment for approximately 20 sessions.
10. On 23 March 2023, she attended Dr Gouras to discuss her progress with her return to work on modified duties and she reported she was still suffering constant pain in her right ankle, pain in her back and neck and occasionally in her toe.
11. On 4 May 2023, she had an X-ray of her right ankle and an examination of weight-bearing on her legs.
12. On 12 December 2023, she had an X-ray of her lumbosacral spine.
13. She deposed that she has taken the following medications for treatment of her injury:[11]

(a) Oroxine 50mcg

(b) FMG

(c) Voltaren 50mg

(d) Imigran 50mg

(e) Endep 10mg

(f) Nurofen

(g) Hirudoid cream

1. Dr Gouras has been the plaintiff's treating general practitioner since 2015. In his report dated 13 July 2023 he stated that she had "a free past history apart from minor medical conditions which were self-limiting".[12] He examined her on 4 December 2022 in relation to the transport accident and noted that she was walking on crutches and complaining of pain in both feet. She also complained of pain in the neck and lower back as well as pain in her right wrist joint. He advised her to keep taking medication and to continue to attend orthopaedics at the Alfred Hospital. The symptoms in the right foot slowly improved and the CAM boot was taken off and she started physiotherapy. Due to ongoing physical symptoms, he observed that she became anxious and depressed.[13]
2. He also noted that she found it hard to cope with her work and was going through financial hardship. She could not afford physiotherapy or to see an orthopaedic specialist for ongoing treatment and follow-up. He made the following diagnosis:[14]

(a) Fractures and ligamentous injuries in her right ankle;

(b) Soft tissue injuries in her left big toe;

(c) Musculoligamentous injuries in her lower back and neck regions; and

(d) Soft tissue injuries in her right wrist joint.

1. He concluded that she had ongoing pain in her neck, lower back and right wrist joint and ongoing pain in her right ankle joint and was still anxious and depressed. She had returned to pre-injury duties but had difficulties coping with her duties due to ongoing pain. She would require treatment into the foreseeable future, and she also needed further investigation and referral to see specialists if her symptoms in the right ankle, lower back and neck persisted.[15]
2. In a report dated 8 January 2025, he confirmed that she had persisting lower back pain, neck pain, pain in her right ankle joint, moderate pain in her right wrist and severe symptoms of post traumatic anxiety and depression.[16] The lower back pain had persisted since the accident and on occasion was severe, characterised with restriction of her lower back movements. Bending or lifting aggravated her back pain and she found it difficult to cope with heavy lifting or long-standing. He noted that the plaintiff had undergone a number of radiological investigations and had been investigated for non-specific persisting symptoms in her chest and heart but multiple admissions to the Alfred Hospital had not revealed any significant or serious physical condition. Dr Gouras considered the symptoms to be related to her post-traumatic anxiety and depression. He noted that she can "hardly cope with her heavy duties as a cleaner."[17] He confirmed she was taking painkillers regularly and anti-inflammatories during aggravations of pain. She required physiotherapy for extended periods and was treated with a small dosage of anti-depressants. Due to the persistence of physical symptoms in the neck, lower back and right ankle joint, he arranged for further X-rays on 24 December 2024.[18]
3. In an updated report dated 22 October 2025, he stated that the right leg pain had persisted and was now associated with pain in the lower back region. Her lower back pain had also persisted and was aggravated by standing, bending, and lifting even small weights. He also noted that due to the back and right foot pain, she had not ever recovered to her pre-injury capacity for work. Her anxiety and depression symptoms had also persisted and were associated with multiple somatic symptoms which required hospital admissions at the Alfred Hospital.[19] He had continued to treat her on a regular basis with medication consisting mostly of painkillers and anti-inflammatories particularly during the aggravation of her lower back and right ankle and foot pain. In respect of the post-traumatic anxiety and depression, he had treated her with anxiolytics and anti-depressants on a regular basis. She was continuing to receive physiotherapy for extended periods, and he had referred her to psychological counselling to help her anxiety. He noted that in recent time she was suffering from an exacerbation of symptoms of fasciitis in the right foot and heel, affecting her ability to stand or walk. He regarded the cause of this condition as unknown although it could be related to the transport accident.[20]

1. The plaintiff has had ongoing physiotherapy from Mr Cusinato, who in his report dated 22 January 2025 noted that the plaintiff continued to experience cervical and lumbar spine pain, especially during and after working a full day of cleaning.[21] She also had ongoing right foot and ankle joint pain from standing longer than 3 hours and struggled to run due to pain and ankle joint stiffness. She continued to be moderately restricted in bending, lifting, twisting, stooping, pushing, pulling, lifting, and repetitive pushing, pulling, and lifting.
2. In an updated report dated 25 November 2025, Mr Cusinato noted the plaintiff had continued to work on a full-time basis and that her diagnosis remained unchanged.[22] The symptoms had remained consistent throughout 2025, and she continued to battle persistent right foot and ankle joint pain when required to stand greater than four hours per day. He also noted that the TAC had ceased physiotherapy funding on 22 September 2025, despite regular outcome measures supporting her continued treatment.[23]

1. A joint medical opinion was obtained by the plaintiff and TAC from Dr Damodaran on 28 March 2024.[24] He obtained a history of the plaintiff's accident and her subsequent history. He recorded that she experienced ongoing pain around the right foot, near the ankle and also pain around the top of the big toe on the right foot throughout 2023. Those ongoing pain symptoms and limitations had impacted her ability to do most of the household chores and her husband had to do much of the work.[25] Nevertheless, as she was quite bored and she had always worked, she did not want to just sit at home waiting for things to get better.[26] She had developed significant anxiety symptoms as she was ruminating about the accident. She recounted to him a fainting episode at work on 1 December 2024 (sic) and she was taken by ambulance to the Alfred Hospital. On investigation, there was no medical reason for the cardiac condition, and she was diagnosed as having takotsubo cardiomyopathy which was stress related and she was referred to a cardiologist.[27] She experienced a further episode of palpitations on 26 February 2024 on her way home from work when her train was involved in an incident. This culminated in her being transferred by ambulance to the Northern Hospital.[28] She continued to have anxiety.
2. Dr Damodaran noted that the plaintiff denied any past history of mental illness, although he noted in the documentation he was provided, there was reference to depression and anxiety. He also noted that the plaintiff's general practitioner had referenced this, but the same general practitioner denied any significant psychiatric condition in the past.[29] He diagnosed her as suffering from an adjustment disorder with mixed anxiety and depressed mood with some features of traumatisation in relation to the transport accident, as well as pain and limitation and a sense of distress regarding the alleged lack of support from the bus driver.[30] In his opinion, the plaintiff would benefit from seeing a psychiatrist to assist her in dealing with a sense of helplessness, intrusive memories, her cardiac symptoms along with the management of her stress, which was causing her significant functional difficulties. He considered her prognosis guarded due to the pain, limitation and also her physical symptoms which were impacting her functioning.[31]
3. Dr Damodaran examined the plaintiff again on 10 July 2025 and provided a report dated 3 August 2025.[32] She reported to him that she had continued to have ongoing levels of anxiety, occasional chest pain and reported pain around her foot and muscular pain around her arch and lower back.[33] She reported feeling better emotionally and was seeing a psychologist. She was also being investigated for abdominal pain symptoms. She reported an incident where she was "sexually attacked" by someone at the railway station which was reported to the police causing her mild anxiety when going to the train station.[34] Dr Damodaran also noted that her recreational activities and social activities were limited, she felt tired and helpless. She was unable to engage in her community activities, did not go out with her husband, did not have any interest in dancing and spent a lot more time at home. She was very teary and very emotional.[35] He also noted that she was seeing a psychologist, was taking Panadol and pantoprazole and had been prescribed sleeping medication. She continued to see her general practitioner. She found the psychological therapy helpful. He maintained the opinion that the plaintiff is suffering from an adjustment disorder with mixed anxiety and depressed mood with features of traumatisation.[36] She had made a modest improvement but was still having residual anxiety which was impacting her social and recreational activities as well as her confidence. Her prognosis was guarded.

1. The plaintiff was seen by Mr Asaid, for medicolegal purposes on 24 April 2024. After obtaining a social history, and the history of the transport accident, he noted that her current symptoms and complaints were in relation to pain in the right ankle as well as "occasional pain in her lower back".[37] The pain in the lower back came and went and differed in intensity depending on her level of activity. He also noted the lower back pain often felt tight and the pain predominantly affected the right paraspinal region of the lumbar spine but did not radiate into her legs. In relation to her right ankle, it was worse on weight-bearing and her right ankle frequently swelled with activity. She had difficulty standing for extended periods as well as difficulty walking up and down stairs.[38] The ankle felt unstable and occasionally gave way. He also noted that the pain no longer woke her from sleep. She used to enjoy running and going on long walks but had difficulty participating in these activities, and although she was still able to do most of the things she previously could, it took her a lot longer to do them. She also felt down and depressed following the accident. Her medication was Panadol daily and she attended her general practitioner on an as-needed basis. She was also undergoing weekly physiotherapy treatment.[39]
2. Mr Asaid had the benefit of the radiological investigation reports and in terms of her pre-existing medical history, noted that the plaintiff reported no previous lower back or right ankle injuries. His diagnosis was of a right ankle fracture, soft tissue injury to the left great toe and musculoskeletal lower back pain.[40] She did not require surgical treatment, and the mainstay of treatment was non-operative with physiotherapy and hydrotherapy.[41] Although he noted the plaintiff had returned to her pre-injury role as a cleaner, in his opinion she would continue to experience some restriction in relation to performing the physical tasks and activities that involved repetitive bending, lifting, pushing or pulling. He also noted that the plaintiff reported a very supportive work environment and that she was able to take regular breaks as required. She had done reasonably well to return to work as a cleaner despite her current levels of pain and physical restrictions. In his opinion, given the duration of her symptoms, she would continue to experience some degree of pain and discomfort in her right ankle and lower back for the foreseeable future.[42]
3. He considered that her condition was a result of an organic injury. The imaging clearly demonstrated a right ankle fracture and the symptoms and medical examination in respect of the lower back were consistent with a soft tissue injury and a subsequent diagnosis of musculoskeletal lower back pain.
4. He re-examined her again on 17 June 2025. He noted that the plaintiff reported her overall condition had remained largely unchanged and she continued to experience persistent discomfort in her lower back and right ankle. Her symptoms remained similar to when he last reviewed her. He noted the pain in the lower back came and went and differed in intensity depending on her level of activity. The lower back often felt tight, and the pain predominantly affected the right paraspinal region of the lumbar spine which did not radiate down her legs.[43] The pain in her right ankle was worse on weight-bearing and the right ankle frequently swelled after activity. She had difficulty standing for extended periods as well as difficulty walking up and down stairs. The ankle felt unstable and occasionally gave way. She continued to take Panadol, consulted a general practitioner and underwent weekly physiotherapy. He also noted that the plaintiff had undergone additional radiological investigations following his last review. On physical examination, he noted that the plaintiff had evidence of calf muscle wasting on the right side compared to the left. Her lumbar spine range of motion was normal, and the lower limb neurological examination was unremarkable. Right ankle range of motion was reduced, and she was tender to palpation over the plantar fascia.[44]
5. In a report dated 19 September 2025, Mr Asaid commented on the opinion of Dr Terence Saxby who examined the plaintiff on behalf of TAC. He noted that Dr Saxby's opinion was largely in keeping with his own opinion, although he had reached a different opinion in relation to the lower back injury.[45] He provided a further report dated 23 September 2025 commenting further on Dr Saxby's opinion and the plaintiff's third affidavit. He commented that although he accepted there were elements of pain related to plantar fasciitis, that did not explain all of the plaintiff's reported right ankle symptoms.

1. The plaintiff consulted Dr Kantar on 20 February 2025 and he noted the history of the accident and the plaintiff's complaints of axial lumbar back pain with radiation into the right leg, extending from the buttock down to the lateral knee to the dorsum of the foot which was described as the "most troubling symptom", lateral right hip pain over the greater trochanter occasionally radiating to the groin, and pain particularly under the sole which Dr Kantar described as disabling and functionally limiting.[46] Based on his records, he noted that the plaintiff directly attributed only her ongoing right foot pain to the transport accident. Cervical and lumbar spine discomfort was raised but he said that it did not seem to be of a primary concern. He had access to X-rays taken on 19 December 2024 of the cervical spine, lumbar spine and right ankle which did not demonstrate any acute bony injury but revealed degenerative changes, likely pre-existing. He was unable to provide a conclusive diagnosis of trauma related pathology. He arranged for further investigations including an MRI of the lumbar spine and right hip as well as an AP pelvis radiograph to clarify the source of the pain but noted the plaintiff had not returned for a follow-up.[47]
2. However, he reviewed the plaintiff again on 14 October 2025 following receipt of the MRI imaging. He noted that she presented with ongoing right foot and ankle pain and the main diagnosis was plantar fasciitis and associated bursitis which were having a significant impact on her gait and overall mobility. He also considered there were secondary compensatory issues developing in the hip due to the altered biomechanics, and the lumbar spine findings remained incidental and non-traumatic.[48] In summary, he considered her primary clinical problem remained chronic, and right foot and ankle pain likely degenerative in nature but possibly exacerbated by her 2022 transport accident. He referred her to a foot and ankle surgeon for further evaluation and management.[49]

1. Mr Talia examined the plaintiff on 8 April 2025 and 29 April 2025. He diagnosed a Weber B fracture of the lateral malleolus of the right ankle. As the plaintiff was complaining of ongoing pain he arranged for an MRI and an X-ray which revealed the fracture had united. The MRI report made comment of plantar fasciitis, but he did not consider that her symptoms were consistent with a diagnosis of plantar fasciitis.[50] Mr Talia saw the plaintiff again on 26 November 2025. He noted that when the plaintiff initially saw him in April 2025, the plantar fasciitis was not particularly problematic for her, but she had subsequently deteriorated significantly. She experienced severe heel pain which prevented her from placing her heel on the ground and had resulted in an altered gait pattern. He also noted that ultrasound imaging performed on 20 October 2025 demonstrated severe plantar fasciitis. He recommended surgery although advised her that the surgical intervention would address the heel and plantar arch pain but would not resolve her other lower limb discomfort which was unrelated to the plantar fascia pathology.[51]

Dr Terence Saxby, consultant orthopaedic surgeon

1. The plaintiff was examined by Dr Saxby on 18 July 2025.[52] After taking a history and examining the plaintiff, he noted that she sustained a right fibula fracture and crush injury of the left great toe in the accident. The fibula fracture had healed uneventfully. She attended physiotherapy and was able to return to work after 4 months and restricted duties, gradually increasing to full-time normal duties. At some stage she developed low back pain although he thought it was very unclear exactly when this occurred.[53] He noted that with time her right ankle had improved and that more recently she had heel pain which was being investigated and diagnosed with plantar fasciitis. She continued to have some lower back pain. He recorded that the right ankle caused intermittent pain with the low back and abdominal pain bothering her the most.[54] In his opinion, the physical symptoms had largely resolved, and the right ankle pain would appear to be related to plantar fasciitis rather than the original ankle fracture. The fracture had united, and he did not expect any symptoms. Complaints of low back pain were intermittent. His examination of the foot and ankle and the lumbar spine was normal. In relation to diagnosis, he diagnosed lumbar spondylosis, which was pre-existing in respect of the back which was constitutional.[55]

Associate Professor Ilan Rauchberger, consultant psychiatrist

1. The plaintiff was examined by Associate Professor Rauchberger on 25 July 2025. In his report dated 21 August 2025, he noted the plaintiff had previously been involved in a motor vehicle accident in April 2018 when she was a front seat passenger, and the vehicle in which she was in, was rear-ended.[56] She had suffered a concussion and experienced distressing memories on a monthly basis following the accident. She had been fearful and nervous about having another accident ever since. Following the first accident, she was mentally healthy apart from occasional distressing memories about the previous accident and being fearful of having another accident. Following the accident the subject of this claim, she developed a chronic adjustment disorder with mixed anxiety and depressed mood and traumatisation symptoms as a result.[57]

1. It was submitted on behalf of the plaintiff that:

(a) The enquiry the Court is required to undertake is in accordance with the two-step approach as set out in Meadows v Lichmore.[58]

(b) To the extent that reliance has been made in relation to medical records of medical practitioners, I should have regard to Philippiadis v Transport Accident Commission[59] concerning reliance placed on medical records.

(c) The evidence in relation to pre-existing plantar fasciitis is limited to one reference by Mr Cusinato, the physiotherapist, on 5 March 2022. The evidence in relation to the pre-existing lumbar condition is limited to 3 attendances over the period between 2017 and December 2022 at the physiotherapist.

(d) The plaintiff has clearly articulated difficulties in performing her work by reason of her injuries and this is confirmed by the lay witnesses.

(e) The plaintiff continues to take medication every day and consults her general practitioner as well as undergoing regular physiotherapy in respect of the back.

(f) The medical evidence is such that it is open for the Court to conclude that the plaintiff suffered an aggravation of a pre-existing degenerative back condition.

(g) It is open for the Court to conclude that the plantar fasciitis and bursitis arose as a result of the accident.

(h) The plaintiff was unsophisticated and had limited education in her country of origin. She had a limited grasp of English and had to rely on the interpreter or friends to assist her in communicating with medical professionals. There are clearly deficiencies in her understanding, even with the benefit of a skilled interpreter, and she was not dishonest. Her responses, whilst at times not responsive to questions, were not founded in dishonesty but due to her language and cultural background as well as the way in which she expressed herself.

(a) The plaintiff had significant pre-existing conditions affecting the lumbar spine namely degenerative lumbar spondylosis, plantar fasciitis in the right foot and a mental health condition. The plaintiff had not established that the accident caused an aggravation of the conditions, that of themselves, are serious aggravations.

(b) The defendant relied on the opinion of Dr Saxby and submitted that the lumbar spine condition was constitutional, degenerative and non-traumatic. Any post-accident symptoms reflected the natural progression of her pre-existing spondylosis. The aggravation was no more than temporary, and the ongoing impairment was not serious.

(c) In relation to the right foot, the plaintiff had pre-existing pathology including plantar fasciitis. In addition, it relied on Dr Saxby's opinion to submit that the plantar fasciitis is idiopathic and not causally related to the accident. The later emergence or deterioration of symptoms undermined a causal link. Even if some aggravation is accepted, the condition is not permanent given the prospect of surgical improvement and the lack of clear separation between the fracture related symptoms and the plantar fasciitis symptoms.

(d) The plaintiff had not properly disentangled the accident-related impairments from the pre-existing conditions and the unrelated comorbidities. There are overlapping symptoms such as pain, fatigue, medication use and sleep disturbance. The consequences are described globally rather than by reference to each body function making it impossible to attribute a serious level of impairment to the accident-related injury.

(e) Finally, the defendant submitted that the plaintiff's consequences do not reach the statutory threshold. She continued to work for substantial periods post-accident and any restrictions on daily activities and employment were not serious. The evidence did not demonstrate any serious impairment of earning capacity or any serious impairment of the body function. The psychiatric consequences were insufficient to elevate the physical injuries to seriousness.

1. The defendant sought to challenge the credibility and reliability of the plaintiff. It submitted that there were obvious shifts in her evidence, that she gave evasive answers that were not responsive and that although she had the ability to understand and answer questions, she often gave evasive answers. In addition, she may have submitted taxation returns for expenses and deductions to which she was not entitled, which negatively impacted her credibility.
2. The plaintiff was subjected to rigorous cross examination on a number of matters. She was questioned extensively in relation to a Pain and Self-efficacy Questionnaire[60] that she completed at the request of the psychologist and the defendant submitted that the plaintiff made a number of shifts in her evidence as to the manner in which it was completed. Her evidence initially was that she completed the Questionnaire with the assistance of a friend who translated the document for her. On continued cross examination her evidence was that she informed the psychologist that she had difficulty answering the questions and it was put to her by the defendant that this answer was false as there was no record in the psychologist's clinical records of her having been informed of this. I do not accept that the plaintiff gave untruthful evidence. The fact that Ms Astrinakis made no mention of this in her notes does not point to the plaintiff having made this up.
3. In my view she did not attempt to shift in her evidence or avoid the questions. Rather as submitted by the plaintiff's counsel, she had difficulty in understanding the questions put to her. This is evident by the following exchange:[61]

Q: And did you understand that the circles - sorry, the numbers across the row, say, for example, on one, range from not at all confident to completely confident? > > A: As far as what she interpreted for me, I answered accordingly. > > Q: Yes. And so she was only interpreting. She wasn't telling you what numbers to circle or anything like that? > > A: No, these were my answers. > > Q: All right. And are you confident that you understood what was on the paper through the interpreting from your friend? > > A: Whatever she interpreted for me in Greek, I answered accordingly. > > Q: Yes. Okay? > > A: I have not seen an interpreter or a translator. > > Q: Yes. Okay. So if we look at no.1, 'I can enjoy things despite the pain', you've been asked to rate how confident you can do the following things despite pain; correct? > > A: Which question was that? > > Q: Well, let's just go back one step, can we. Did you understand that what you were meant to do when filling in the form was to rate how confident you were about doing the things that were on the list despite having pain? > > A: I did not understand the question. > > Q: All right? > > A: Even now. > > Q: Yes. So just then explain to me, did your friend translate for you what's on the page? > > A: Yes. > > Q: And you then put the circles on the page? > > A: Yes. > > Q: So when you were putting a circle on six in relation to the statement, 'I can enjoy things despite the pain', what were you meaning when you put that circle there? > > A: I'm not understanding. What am I supposed to be enjoying? > > Q: Well, you've told us that these are your circles on the document? > > A: (Direct) Yeah. > > Q: And you put the circle on six; correct? And you didn't put it on zero or five or any other number. So why did you choose six? > > A: (Through Interpreter) Because I was really bad during that time. > > Q: And did you understand that by putting six, you were saying that you were confident that you can enjoy things despite the pain? > > A: No. No, I'm not enjoying things. > > Q: As at February of this year, you were, I suggest, able to do most of your household chores? > > A: My husband is always helping me with things. Now I'm better, I'm not like I was before, but I have the assistance of my husband always.

4. Even with the assistance of an accredited interpreter the plaintiff struggled to understand the questions put to her.
5. In addition, when reviewing the notes of the clinical attendances with the psychologist Kathy Astrinakis, they do not accord with the results of the Pain Self-efficacy Questionnaire. For instance, in the attendance note taken on 9 April 2025, the plaintiff is reported to state to Ms Astrinakis that she struggled severely with her sleep and was extremely stressed because of her condition and despite working, she was unwell, but she had to work. She returned to work out of desperation, both financial and because she did not want to stay at home alone as she thought you would be worse at home.
6. At the attendance on 14 May 2025, Ms Astrinakis recommended that the plaintiff undergo a 15-month treatment plan. The TAC ultimately approved 12 sessions to take place over a 6-month period. That further treatment was proposed together with the plaintiff's complaints, is not consistent with responses contained in the Questionnaire, which suggest the plaintiff was completely confident in virtually all aspects of life despite the pain. A more likely explanation is that the Questionnaire was incorrectly completed or not properly understood by the plaintiff's friend or inaccurately translated.
7. The plaintiff was also cross-examined in relation to the failure to continue treatment with Ms Astrinakis. Her response that she was awaiting approval by the TAC to undergo the further sessions was entirely plausible as was her explanation that she was unable to secure an appointment earlier than 14 January 2026. I accept that she was truthful in her responses.
8. The plaintiff was also subjected to prolonged cross-examination in relation to the history of pre-existing complaints in respect of both the back and plantar fasciitis. She was asked numerous questions in relation to the history given to Mr Asaid, specifically problems that she may have had in relation to her right foot before the accident. She believed that she had informed Mr Asaid about the cyst for which she had surgery although was prepared to concede she might not have mentioned it or that she may not have remembered it. That she made these concessions enhance her credibility in my view.[62] Mr Asaid notes in his report that "she reports no previous low back or right ankle injuries".[63] It was the plaintiff's submission that the focus of this case has been on physical injury to the ankle and to the lower back. It was correct for Mr Asaid to record that the plaintiff suffered no previous low back injury and no previous ankle injury. The plaintiff had made complaints of back pain on three occasions between 2017 and the date of the accident but had suffered no previous back injury.
9. The plaintiff underwent surgery for a cyst to her right foot on 21 May 2021 which she acknowledged but again had not suffered any "injury" to the right foot.[64] She had not sought to conceal that she had aches and pains and had consulted a physiotherapist prior to her injury. Moreover, although Mr Asaid stated there was no history of previous low back injury, he acknowledged in his report dated 17 June 2025 that the plaintiff had previously experienced occasional mild discomfort with her lower back which did not impact any of her activities. It is likely that he referred to physical injury as distinct from complaints of pain. This is consistent with the plaintiff's affidavits and her viva voce evidence.
10. Moreover, I also agree with the plaintiff's submissions that caution must be placed upon the reliance of medical records of medical practitioners having regard to the decision of Philippiadis v Transport Accident Commission.[65]
11. I also have regard to what the Court of Appeal noted in Hettiarachchi v Transport Accident Commission, that the recording of statements by doctors have one purpose, namely to assist in forming a diagnosis of the patient's conditions.[66] These are not intended to form part of the forensic arsenal of the cross-examiner and caution must be exercised in the use of such material. Where something is not recorded in the medical notes, care must be taken before concluding that this adversely impacts upon the plaintiff. This is particularly pertinent in this case where the doctors have been reliant on obtaining a history through an interpreter.
12. The Court in this case had the benefit of NAATI accredited interpreters across two days. Notwithstanding the assistance provided by the interpreters, there were at least two occasions where the interpreter was unable to capture the accuracy of the plaintiff's answer the first time. On one occasion the Court replayed the audio of the plaintiff's evidence twice before the interpreter was able to accurately interpret the plaintiff's evidence. The plaintiff has a limited grasp of English, and although on occasions was able to respond to basic questions in English, she primarily relied on the interpreters to give her evidence. I do not accept the defendant's submission that she had a substantial understanding of English. From my observation her understanding was of a basic level and reflected her limited education in her native language and her experience in learning English upon her arrival in Australia for a period of only 6 months.
13. The defendant also sought to impugn the plaintiff's credit having regard to evidence that she made a false claim of motor vehicle travelling expenses in her income tax returns, despite not possessing a driver's licence and not driving to and from work. The plaintiff gave this evidence after I gave her a certificate pursuant to s128 of the Evidence Act 2008 (Vic). It was her evidence that she claimed a deduction of $2,144.00 in the financial year ending 30 June 2024 for work-related motor vehicle expenses and a deduction of $1,950.00 in the financial year ending 30 June 2025. When questioned about the information she provided to her accountant, her evidence was that she did not provide him with any information as the employer sent him the information, and he had everything on his computer. He advised her in relation to what she could claim and she did not provide him with further documentation. Whilst it is clearly the plaintiff's responsibility to ensure the accuracy of information submitted to the Australian Taxation Office, and she acknowledged that she is not entitled to make a claim for motor vehicle expenses, her evidence was that she relied on the advice of her accountant.[67] Again, in circumstances where the plaintiff is reliant on others, including professionals to complete documents and claims on her behalf given her rudimentary grasp of English, I do not accept that she deliberately set out to deceive or be dishonest.
14. I also note the observations made by both Dr Damodaran and Assoc Prof Rauchberger in relation to disclosure of the pre-existing mental health complaints. Assoc Prof Rauchberger noted that he considered the possibility of her pre-existing adjustment disorder or other anxiety disorder based on the plaintiff's description of anxiety and distressing memories from the previous transport accident, together with the GP records mentioning anxiety in 2020 without any elaboration. It was his opinion on the balance of probabilities that this did not amount to a pre-existing psychiatric disorder as the symptoms did not appear to cross the threshold to fulfil a psychiatric diagnosis. Dr Damodaran also noted the existence of documentation pointing to a past history of psychiatric condition, but the plaintiff denied any past history of psychiatric condition to him. Dr Damodaran made the point which I believe is apt, that the plaintiff's general practitioner also denied any significant psychiatric condition in the past. Clearly, the psychiatrists did not place much emphasis on the plaintiff's denial of prior mental health issues particularly as there was no evidence of a recognised psychiatric diagnosis.
15. Having had the opportunity of observing the plaintiff in the witness box I formed the view that she was, as described by her counsel, namely not a sophisticated person but she was genuine and forthcoming in her evidence. Although at times her responses were frustrating and unresponsive, I attributed this to her personal characteristics and cultural and linguistic differences.

1. I accept that the plaintiff suffered a fracture and ligamentous injury to her right ankle. The X-ray performed on 2 December 2022 demonstrated a mildly displaced distal fibula fracture. Although the fracture has united the plaintiff has been left with persisting pain which is worse on weight-bearing and swells with activity. In this regard, I accept the opinion of Mr Asaid who has had the benefit of the radiological investigations and the opportunity of assessing the plaintiff on a number of occasions, including before the recent deterioration of the plantar fasciitis symptoms. Although the plaintiff's recent presentation has been clouded with the intensification of the plantar fasciitis symptoms, with Mr Talia recommending surgery, and it is the plaintiff's evidence that she will undergo the surgery as it is her hope that these symptoms will be relieved, Mr Talia makes it clear that the surgery he proposes will not resolve her other lower limb discomfort which is unrelated to the plantar fascia pathology.
2. Given the absence of a path of reasoning to Mr Talia's conclusion attributing the plantar fasciitis to the transport accident and Dr Saxby's opinion that the condition is likely idiopathic and not attributed to the accident, as well as Dr Gouras' equivocal opinion, the state of the evidence does not enable me to accept that the plantar fasciitis was either aggravated or caused by the transport accident. Nevertheless, both Dr Gouras and Mr Asaid, whose opinions I accept, confirm the chronicity of the symptoms associated with the right ankle injury, including the ongoing pain. In addition, Mr Asaid made the objective finding of muscle wasting in the right calf. Dr Gouras has had a long-standing therapeutic relationship with the plaintiff and is best placed to comment on her condition.
3. In relation to Dr Kantar's opinion with respect to diagnoses, it is somewhat limited given he acknowledged that he was not privy to information in relation to the plaintiff's treatment at the Alfred Hospital. It appears he was only provided with limited investigations, namely a cervical spine, lumbar spine and right ankle X-ray undertaken on 19 December 2024 and he believed that providing an assessment was difficult given the considerable time lapse between the date of injury and the date of his assessment.
4. In respect of the diagnosis in respect of the low back injury, on the one hand Mr Asaid has diagnosed musculoskeletal low back injury and on the other, Dr Saxby commented that it was unclear to him when the low back pain developed. In light of the radiological investigations, he concluded that she was suffering from lumbar spondylosis, a pre-existing condition which was not related to the transport accident. Dr Saxby came to this conclusion primarily because he was not satisfied that there was any documentation indicating there was a complaint of low back pain or abnormality in the spine at the time of injury, as set out in the Alfred Hospital medical discharge summary on 2 December 2022. However, it is clear from Dr Gouras' clinical records that the plaintiff complained on 4 December 2022 of back pain, and the back condition did not develop sometime after the initial injury, but likely as a result of the transport accident. Therefore, I have difficulty accepting Dr Saxby's opinion having regard to this significant omission.
5. I accept that the plaintiff has sustained a musculoskeletal low back injury which is productive of ongoing symptoms and pain.

1. I am satisfied that the plaintiff's injury both to the low back and to the right ankle is long-term in the sense that it is far-reaching.[68] She has continued to experience the symptoms for three years and the medical opinion is that the prognosis for both conditions is guarded according to Dr Gouras.

1. The plaintiff deposed that there was no aspect of her lifestyle and activities which had not been very considerably and adversely impacted. Although she acknowledged that she was still able to undertake most activities, she did so with pain and it took her a lot longer to undertake the activities. She had changed as a person, and her mood had been affected. She is more down and depressed and worried since the accident. She thinks about the future and what the injuries mean for the rest of her life. Prior to her transport accident she was joyful and generally in a good or normal mood.[69]

1. The plaintiff deposed that she suffers ongoing pain and restricted movement in the right foot and the lower back. Pain in the right foot is present when she uses it and she cannot walk long distances without feeling high levels of pain. Pain from the back and right foot inhibits her when completing chores around the house. Household tasks such as washing clothes, cooking or cleaning, whenever she moves or steps with her right foot, causes severe pain. Due to the pain being triggered easily, she tries to move slower when completing household tasks and takes care not to walk too much.[70] Undertaking household tasks is more time consuming and a hassle, and her husband usually assists her or does it himself. In her third affidavit, she confirmed that she continued to suffer from pain which she rated on a scale of 5 up to 10 depending on her level of activity.
2. Dr Gouras confirms that the plaintiff's right leg pain has persisted since the accident, as has her lower back pain, with the lower back pain being aggravated by standing, bending or lifting even small weights.[71] Mr Asaid noted the consistency of symptoms in relation to the lower back and right foot. In his report dated 24 April 2024, he noted that the plaintiff had done reasonably well to return to work as a cleaner despite her current levels of pain and physical restrictions. He also considered that she would continue to experience the degree of pain and discomfort for the foreseeable future.
3. The plaintiff rejected Dr Saxby's opinion that her physical symptoms have largely resolved.[72] She did not consider this to be an accurate statement and she continued to suffer constant variable levels of pain particularly affecting her right foot with the pain extending from the point of the fracture at the base of the fibula and extending through the heel of her right foot and also involving the muscles of the lower part of her right leg. Given Dr Saxby's significant omission in relation to Dr Gouras' clinical notes discussed above, I cannot accept the overall accuracy of his opinion.
4. I accept that the plaintiff's pain has been present at variable levels of severity for the better part of 3 years both in respect of the lumbar spine and the right foot (ignoring the most recent deterioration attributable to the plantar fasciitis) and it will likely continue to persist on an ongoing basis throughout her life.

1. The plaintiff continues to use Panadol Rapid 500mg, two tablets, 4 times daily for the pain. The medication only provides temporary relief. She had in the past been prescribed anti-inflammatory medication but ceased this due to side-effects.[73] In her third affidavit, she deposed to having been prescribed temazepam 10mg to help her sleep at night because of the pain. She was also prescribed mirtazapine 7.5mg for secondary psychological symptoms. The defendant submitted that her medication intake was limited, and it was difficult to know whether it was being prescribed for the back, right foot condition or her cardiac problems. Given her medication consumption was modest, it was an indicator of the extent of pain she was in.
2. Dressing v Porter[74] makes it clear that the fact that painkillers might give pain relief at more than one site of injury does not mean that the injuries themselves were not capable of dissection. I accept that she has ongoing pain in both the right foot and the lower back for which she takes medication and that the medication assists with the management of these distinct conditions as well as with her cardiac issues.

1. Following the accident, she received sick leave and annual leave to sustain her financial position whilst she was off work. On or around 13 March 2023, she deposed that she returned to work on full-time hours as she needed the money.[75] She deposed however, that she worked in constant pain from moving around and being on her feet as well as having to bend her back.
2. She continued to work full-time until her employment was terminated in September 2025 as her employer lost the cleaning contract.
3. Whilst the plaintiff was able to work for a significant period of time and she ceased work for reasons unconnected with her injuries, there is substantial medical evidence that is supportive that she has never fully recovered to her pre-injury capacity for work. Dr Gouras confirms that the plaintiff has never recovered her pre-injury capacity for work and that her duties as a cleaner demand heavy repetitive physical work.[76]
4. The affidavits from the plaintiff's work colleagues confirm that her employer has been accommodating of her restrictions. Mr Lopes deposed that the plaintiff was a good worker, who enjoyed her job and obtained satisfaction from it. After he was made aware of the plaintiff's transport accident, he deposed to observing the plaintiff having difficulties with her work and her undertaking tasks at a slower pace. He also noted she was not a person to complain but he could tell from her demeanour that she was experiencing pain. Ms Kefalas also confirmed that the plaintiff worked quite slowly as a result of her injuries and their employer was understanding and allowed the plaintiff to take rest breaks when required. She also confirmed the plaintiff complained to her about pain in her leg and back, and that she was not the same bubbly person she was before the accident. Neither of the lay witnesses were cross-examined. Their evidence is consistent with the plaintiff's, and I accept their evidence. The plaintiff has emphasised that her employer has been accommodating in relation to her restrictions and she was able to rest whenever she needed to whilst at work.[77] This is corroborated by the co-workers.
5. Although the plaintiff is not working presently because her employment was terminated, she is highly motivated and made a recent attempt to find other work, which was unsuccessful. She acknowledged that she would still be working if the contract had not ended but felt that given her current state of pain in respect of the foot and her psychological well-being, she did not think she would be offered employment.[78] I accept her evidence in this regard.
6. Although the plaintiff has not suffered a pecuniary loss as a result of the accident, notwithstanding this, I accept that the plaintiff's back injury has affected her ability to perform a full range of her work activities. Moreover, the injury and the continued pain she experiences in the right foot also has a deleterious effect on her ability to undertake unrestricted work. Just because a plaintiff can remain at work and there is no pecuniary loss established at the time of application, does not mean she has not suffered a serious injury. As the Court of Appeal stated in Abbas v Transport Accident Commission, that "would be to disregard the totality of the applicant's circumstances".[79] The relevant enquiry is whether the consequences of the injury satisfy the relevant test.

1. She has deposed that she struggled with sleep as the stress and anxiety make it difficult for her to turn her mind off and rest. In addition, the pain in the back and foot make it difficult for her to find a position in bed when she is not in pain. This generally leaves her tossing and turning for most of the night and waking up not rested.
2. Sleep is impaired by pain on a constant basis, and she finds it difficult to get to sleep and to remain asleep. Dr Gouras has prescribed melatonin to assist which is consistent with the plaintiff's evidence that her sleep continues to be affected by pain.[80] She was cross-examined at length in relation to the history taken by Mr Asaid that the pain no longer woke her.[81] She did not agree with this, and I accept her evidence.[82] If her sleep was no longer affected then there would be no reason for Dr Gouras to prescribe the melatonin.

1. She used to enjoy walking long distances but now finds her mobility is restricted and has limited the walking she can do.

1. Her husband continues to provide her with considerable assistance around the house in terms of cleaning and maintenance duties and also attending to shopping and outdoor tasks. She sometimes goes shopping with her husband.

1. Her hobbies included catching up with friends and family and getting coffee with them. Since the injury, she rarely meets up with friends in the same manner as she prefers to stay home and avoid travelling and having to walk and move around so much.[83] She is not the same person as before the accident and it has affected her relationships with friends and family. Prior to the transport accident she was joyful, good to be around and spend time with. Now she is pessimistic, overly anxious and worried which makes it hard for her to enjoy spending time with others.[84]
2. She is largely housebound and does not enjoy a social life which she previously enjoyed. She is unable to go out to restaurants and social activities which is an important part of her Greek social community. She used to enjoy dancing, which was a big part of her culture.[85] She used to run a couple of kilometres a day and was quite a good athlete in her youth. She described running as her passion. She ceased running due to her right foot and ankle condition. She was cross-examined in relation to her return to running, specifically in relation to the history obtained by the Alfred Hospital, but she denied returning to running following her accident.[86] Having regard to my previous observations regarding the plaintiff's credit and the problems encountered with the plaintiff being understood as well as problems with interpreters, I accept the plaintiff's evidence.
3. Her social life now consists of attending Greek church. Although she goes to the occasional Greek social function, it is not with the same frequency. She used to dance but no longer does.

1. She was hoping to learn to drive in Australia, but her injuries have precluded her ability to undertake training and driving as planned. She was cross-examined in relation to her intention to obtain a driver's licence and the impact the 2018 transport accident had on those intentions. I considered that she made appropriate concessions regarding the impact that the earlier accident has had on her and that whilst it is a factor, the subject accident has also led to significant anxiety with respect to driving.

1. Her relationship with her husband has been affected. The level of intimacy has decreased due to the pain in her back and her foot. In her third affidavit, she confirmed that the marital relations remain restricted by reason of both the physical and psychological injuries. She rejected that gynaecological issues, for which she saw a gynaecologist in June 2022, had impacted her marital relationship. There has been no further gynaecological treatment, and I accept that the consequences of the injuries and impaired body functions flowing from the accident are now responsible in the decrease in her libido and intimacy with her husband.

1. Consistent with the principles in Richards v Wylie,[87] I accept that the cause of the plaintiff's low back condition is organic as is her right ankle condition, and as a measure of the seriousness of the organic impairment, it is permissible to take into account the psychological response. In this regard I accept the opinions of Dr Damodaran and Associate Professor Rauchberger that her mental health has been impacted by the restrictions on her physical functioning.
2. Having accepted that the restrictions of movement and pain the plaintiff suffers from in relation to the low back and the impact of the pain and restricted movement has on her ability to undertake a full range of work activities, engage in her social activities and hobbies, the impact on her sleep, the ongoing medication intake, the ongoing treatment by way of physiotherapy and review by her general practitioner, I find that the consequences to the plaintiff of the loss of the body function referable to the back are very considerable. I also find that separately, the ongoing pain and restrictions arising from the right ankle fracture, constitute a serious injury. More than one condition can be productive of pain and suffering consequences that meet the serious injury threshold.[88]
3. I consider that the plaintiff's consequences as identified constitute a serious injury to the plaintiff when assessed by comparison of other cases in the range of possible impairments and that they are at least very considerable and more than marked or significant.
4. I grant the plaintiff's application.

1. I find that the plaintiff has suffered a serious injury.
2. I will hear argument with respect to costs.

[1] [2000] VSCA 50

[2] Humphries & Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 170 and accepted by the Court of Appeal in Barlow v

Hollis [2000] VSCA 26; (2000) 30 MVR 441, in particular, Chernov JA at paragraph [29]

[3] First Affidavit of Elena Yzeiraj sworn 30 May 2024, Fifth Further Amended Plaintiff Court Book ('PCB') 7

[52] Second Further Amended Defendant's Court Book ('DCB') 4-18

[58] [2013] VSCA 201

[59] [2016] VSCA 1

[61] Transcript ('T') 28 Line ('L') 28 - T30 L8

[65] [2016] VSCA 1 at [105]

[66] [2023] VSCA 27

[68] Tavares v Tavares [2003] VSCA 12 at [71]

[72] Third affidavit of Elena Yzeiraj sworn on 16 September 2025, PCB 25

[74] [2006] VSCA 215

[79] [2015] VSCA 217 at [37]

[87] [2000] VSCA 50

[88] Dressing v Porter [2006] VSCA 215 at [47]