Zonneveldt v Victorian Workcover Authority; Zonneveldt v Transport Accident Commission [2025] VCC 1029

1. Matthew Zonneveldt ("the plaintiff"), seeks the leave of the court to commence a common law proceeding by accessing one or the other, or both, of two gateway "serious injury" provisions.
2. In proceeding CI-24-01084 the plaintiff seeks a "serious injury" pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 ("the WIRC Act") from the Victorian Workcover Authority ("VWA") because of a back injury he alleged was suffered at work ("the WIRC Act proceeding").
3. In proceeding CI-24-03395 he seeks a "serious injury" pursuant to the Transport Accident Act ("the TAC Act") from the Transport Accident Commission ("TAC") in respect to an alleged aggravation of the work-related back injury because of a subsequent car accident ("the TAC Act proceeding").
4. I shall at times refer to the two proceedings as 'the proceeding', because they were conducted concurrently and because of the overlap in the evidence.
5. At a general level, the task for the Court is to identify what, if any back injury was suffered by the plaintiff because of his work and then to identify what, if any aggravation injury was suffered in the car accident, before determining the extent of the leave to be granted to commence a common law proceeding or proceedings.
6. The defendants accept that overall, the plaintiff has suffered a "serious injury" as defined in either the WIRC Act or the TAC Act. But each defendant disputed that it had caused the "serious injury".
7. Broadly, the issue in dispute is about which of two gateway provisions the plaintiff can access to bring a claim for damages. In lay terms, the dispute is who caused the "serious injury".
8. The dispute in the WIRC Act proceeding is more nuanced than just the question of "serious injury", because the "serious injury" gateway is divided into the pain and suffering and pecuniary loss paths. In that proceeding the dispute also involved an assessment of whether he is entitled to leave to commence a 'both heads' proceeding, or just for pain and suffering, or not at all.
9. Whereas in the TAC Act proceeding, which does not have the two paths, the dispute is confined to whether the plaintiff gets through the "serious injury" gateway, or not.
10. The parties tendered documents from court books, including the usual assortment of affidavits, medical reports and related documents. As is also usual, the plaintiff gave oral evidence and was cross-examined by each defendant, but no other oral evidence was given. At the conclusion of the oral evidence and after the tender of documents, the parties then made oral submissions.
11. I have considered all the tendered evidence, the transcript of the plaintiff's oral evidence and the parties' submissions.
12. These applications have not been easy to resolve. They involve complex factual disputes and the application of somewhat artificial legislative and legal principles for the purpose of a gateway proceeding. As the plaintiff said, perhaps unhelpful but accurately, "this is as - an egg that's been cracked that needs to be unscrambled as much as it can, but ultimately that'll be a matter for your Honour".[1]

1. The following background is drawn from the evidence and is not in dispute, save to the extent indicated.
2. The plaintiff was born in 1977 and is now 47 years of age. He attended school to year eleven and then obtained a TAFE certificate in electronics, before working in service stations and then going on to obtain an apprenticeship as an electrician. He is a trade qualified electrician.
3. In November 2011, the plaintiff commenced employment with Tyco Projects (Australia) Pty Ltd ("Tyco") as an electrician/service technician. In about 2016 the trading name for Tyco became Johnson Controls, although nothing presently turns on that.
4. The plaintiff's role with Tyco was to perform traffic light maintenance as part of a contract with VicRoads.
5. The plaintiff was in good health when he commenced with Tyco.
6. The plaintiff first experienced back pain working with Tyco in about August 2012, but again nothing much turns on that.
7. Then, in approximately April 2016, he was undertaking heavy work for Tyco to repair a damaged traffic light and developed back and left leg pain.
8. On 11 May 2016, the plaintiff was referred to Mr Yagnesh Vellore, neurosurgeon and spine surgeon. On 31 May 2016 the plaintiff underwent a left L5-S1 laminotomy, microdiscectomy and rhizolysis for a diagnosed left L5-S1 disc prolapse. [2]
9. Following a short period of recuperation, the plaintiff returned to his pre-injury employment with Tyco. From time to time he had some back pain or symptoms in his left leg/foot, but nothing that incapacitated him for work or required much by way of treatment. I shall return to discuss this aspect of the evidence in more detail in these reasons.
10. Then, in approximately October/November 2019, the plaintiff claimed to have suffered the return of back pain and left leg symptoms when working for Tyco. There is no dispute that he had back pain at that time, but whether he had left leg pain/symptoms is an issue in dispute.
11. After the return of back pain in October/November 2019, the plaintiff was placed on modified duties. He returned to consult his general practitioner and his physiotherapist.
12. After an attendance with his general practitioner, Dr Leonid Gankin, on 30 December 2019, the plaintiff was referred again to Mr Vellore. Dr Gankin's referral letter simply said:

"Thank you for seeing Matthew Zonneveldt for an opinion and management of his LBP. I would appreciate your advice, esp re: long term prognosis and long term restrictions for his work."[3]

1. In addition to the referral to Mr Vellore, the plaintiff was referred for an MRI scan of his lumbar spine. The referring doctor for that scan was Mr Vellore. The MRI referral dated 10 January 2020 recorded "MRI lumbar spine ? lumbar radiculopathy".[4]
2. The MRI scan was then arranged for 14 January 2020, and an appointment was arranged with Mr Vellore for 17 January 2020.
3. But before the plaintiff could have either the MRI scan or the attendance on Mr Vellore, he had the misfortune to be involved in a car accident on 13 January 2020 ("the car accident").
4. Shortly before the car accident, the plaintiff was driving a Tyco work van on Eastlink, near the intersection of the Thompsons Road exit, when his van was hit from behind by another vehicle.
5. In an affidavit sworn by the plaintiff on 2 October 2023,[5] he described how, after the car accident, he exchanged details with the other driver, drove home and called his employer to report the accident. He said initially he thought he was okay. However, when he woke up the next morning, his back seized up, he struggled to get out of bed and could barely walk.
6. The plaintiff then had the MRI scan as planned on 14 January 2020 and attended Mr Vellore on 17 January 2020.[6]
7. On 17 January 2020, Mr Vellore wrote back to Dr Gankin and said that the plaintiff had been "cured" after the 2016 surgery. Mr Vellore also said that the plaintiff's work had recently exacerbated his symptoms[7] and "he had also had a motor vehicle accident with complicating matters which made his left leg symptoms worse...His recent MRI scan does demonstrate some very mild recurrence of disc prolapse at the L5-S1 level on the left which is likely related to the MVA".[8]
8. Skipping ahead, on 1 August 2020, Mr Vellore operated on the plaintiff's lumbar spine, by way of an L5/S1 spinal fusion. Unfortunately, the fusion failed. The plaintiff was referred for a second opinion with Mr Patrick Chan, neurosurgeon in May 2021. On 11 August 2022, Mr Chan performed further surgery on the plaintiff by way of a further L5/S1 interbody fusion, with removal of the earlier implanted metalware.
9. The plaintiff is currently off work and continues to have pain and disability associated with his back injury. At the risk of repetition, while causation is not agreed as between defendants, the fact that the plaintiff overall has a "serious injury" as defined is broadly not in dispute.

1. The plaintiff made his claim for "serious injury", or more accurately for leave to commence a common law proceeding, in alternate ways.
2. First, he contended that he had suffered a "serious injury" separately or consecutively arising out of the workplace injury and then the subsequent motor car accident.
3. Therefore, his primary contention was that he was entitled to the leave of the Court to commence a proceeding for pain and suffering and pecuniary loss damages against Tyco, and against the driver who caused the car accident.
4. Second, as a fallback position, the plaintiff submitted that he should at least be granted leave to commence a proceeding for pain and suffering damages against Tyco, and a common law proceeding against the driver of the car.
5. Third, as a fallback to his fallback position, the plaintiff submitted that if he was not granted leave to commence a common law proceeding against the driver of the car, then he should be granted leave to commence a both heads proceeding against Tyco.
6. Overall, the plaintiff submitted that because there was no argument that he had a "serious injury", he should be granted leave to commence a common law proceeding in some way against one or both potential defendants in each of the unrelated common law claims.
7. Pausing, while there may be no argument that overall, he has a "serious injury", it is impermissible to combine the two potential causes of action. In other words, for the purpose of the gateway proceedings, the court cannot start at the end point of a "serious injury" and work backwards.

1. In the WIRC Act proceeding, the VWA's primary contention was that the plaintiff had a good recovery from the 2016 back injury and surgery and was not seriously injured before the car accident. It submitted that the evidence established that left leg pain returned only after the car accident, and it was the development of leg pain that caused the need for lumbar fusion surgery, from which the plaintiff has had a poor result. Therefore, the VWA submitted that the "serious injury" should be attributed to the car accident.
2. Alternatively, if the Court rejected its primary position, then VWA submitted that the evidence at the highest only justified the grant of leave to commence a common law proceeding for pain and suffering damages against Tyco because the incapacity for work was caused by the car accident.

1. In the TAC Act proceeding, the plaintiff relied upon the aggravation of a pre-existing back injury, at L5-S1, as the injury said to be "serious" within the meaning of s93 of the TAC Act.
2. In that regard, the TAC conceded that the plaintiff suffered an injury in the car accident that caused an aggravation of his pre-existing back symptoms. It also submitted that while the car accident may have caused "a spike" in the symptoms of left sciatica, the sciatica was already there. Overall, TAC submitted that any aggravation injury caused by the car accident was for a very limited period, before such symptoms returned to the pre-car accident state.[9] Therefore, it submitted that the car accident made no difference whatsoever to the plaintiff's long-term outlook.[10]
3. Alternatively, the TAC contended that any ongoing car accident-related back injury and impairment was "minor" and not a "serious injury".
4. Either way, the TAC submitted that the plaintiff should not be granted leave to commence a common law proceeding for the car accident.
5. The TAC submitted that the plaintiff had a "serious injury" because of the back injury he suffered working with Tyco. It said that the plaintiff "gets a ticket for both heads against the VWA".[11]

1. At the core of this proceeding, is the application of the relevant legal principles to a complex factual and medical dispute.
2. As I shall set out, several treating and medico-legal practitioners expressed conflicting opinions about causation and the relationship of the plaintiff's current spinal impairment to one, or the other, of the work injury with Tyco and the car accident.
3. I am conscious that I am deciding injury and impairment for the purpose of a gateway proceeding. I must apply the law as it has been developed in respect to "serious injury" applications under both the WIRC Act and the TAC Act. At this stage, issues to do with the vicissitudes, apportionment and the like are irrelevant.
4. Next, it is the plaintiff that bears the overall onus to identify the alleged injury, impairment consequences, and to satisfy the Court that such injury is "serious".
5. In respect to the WIRC Act proceeding, the plaintiff bears the onus to identify the injury and impairment consequences, to meet the "very considerable" test, either in respect to pain and suffering or pecuniary loss.
6. Next, because the TAC Act proceeding is based on an aggravation of a pre-existing back injury, the plaintiff must first establish that the car accident was a cause of injury to him.[12]
7. Then, in respect to the car accident, he must then satisfy the additional evidentiary requirement, as set out in Petkovski v Galletti,[13] and more recently discussed in Seckold v Transport Accident Commission,[14] namely the onus to establish the extent of any aggravation injury and then to establish that such aggravation injury caused sufficient additional impairment so as to meet the "very considerable" test for "serious injury".
8. As cases such as Filipowicz_[15]_ establish, the plaintiff cannot rely on the fact that his condition overall is "serious" and then work backwards to establish that one or both tortfeasors have contributed to that serious condition. That proposition is also consistent with what was said by the Court of Appeal in Rowe v Transport Accident Commission,[16] where it was confirmed that it is not permissible to ask the "but for" question about the contribution of an accident to injury.
9. The task of unscrambling is not made easier in this proceeding where eminently qualified experts, including several neurosurgeons, have arrived at different conclusions about causation. To analyse such differing opinions is not easy where, as is the convention in a gateway proceeding, the doctors are not called to give evidence and where no party sought any of the medical experts to give oral evidence.
10. In an assessment of causation, I consider that the rigorous approach that might be taken at a trial to factual causation, where the court has the full gamut of relevant evidence and where medical witnesses usually give oral evidence, is not the correct approach for a gateway proceeding.
11. I am fortified in my approach to causation because as I was part way through writing these reasons, the Court of Appeal decision in Findlay v Transport Accident Commission ("Findlay")[17] was handed down. In the joint judgment in Findlay it was said about causation in serious injury applications that -

"Before leaving ground 1, we would make the following additional observations about the requirement to establish causation in serious injury applications.

As was said by Gummow and Hayne JJ in Travel Compensation Fund v Tambree, '[i]t is now clear that there are cases in which the answer to a question of causation will differ according to the purpose for which the question is asked'. The purpose for which the question is asked in a serious injury application is to determine whether an injured plaintiff should be granted leave to commence a common law proceeding for damages.

As has been said before, a serious injury application is a 'gateway' proceeding, usually conducted with no oral evidence other than that of the plaintiff. The result of the application does not give rise to any liability to pay damages. Nor does it create any relevant issue estoppel. This Court has previously held that a plaintiff in a serious injury application must prove causation. However, the question, whether the evidence tendered in such a gateway application is sufficient for that purpose, needs to be considered in light of the limited purpose for which the question is being asked, and in light of the more limited scope of the evidence adduced on that issue than that which might be adduced in a full trial."

1. Before dealing with the relevant evidence for causation, it should not be lost that the plaintiff has had an L5-S1 fusion which failed and required a redo L5-S1 fusion. Since then, he has been plagued by ongoing back pain and an inability to return to work. For the financial year ended 2019, he was paid $142,451 gross with Tyco[18] and is now off work. On any view that is a "very considerable" consequence.
2. This is not a case in which the plaintiff's credit is in issue and neither defendant sought to make such an argument.
3. My assessment of the plaintiff is that he was a credible witness and that he is a stoic. After having spinal surgery in 2016, he 'got back on the horse' and returned to his pre-injury employment, which is capable of being described as heavy work. Even when symptoms returned in late 2019, he remained working full-time, albeit with modifications. Not even a referral back to Mr Vellore was enough to persuade him to cease work.
4. In my opinion the plaintiff is a person who is not prone to complaint and the evidence from treating practitioners should be seen in that context.
5. It is unnecessary to set out a lot of the plaintiff's evidence of impairment and impairment consequences because a lot of it is not disputed. I shall focus on his evidence about symptoms and impairment before and after the car accident.

1. Commencing with the plaintiff's affidavit evidence, in his first affidavit sworn 2 October 2023, about the development of symptoms in his back with Tyco and otherwise before and after the car accident, the plaintiff said:

"26. On 31 May 2016, I had an L5/S1 laminectomy, microdiscectomy and rhizolysis with Mr Vellore.

1. 27. About six weeks post-surgery, I resumed physiotherapy at Lifecare Physio.
2. 28. After the surgery, I was off work for a few months. I then undertook a graduated return to work program, resuming my full hours and duties in about mid 2017.
3. 29. The laminectomy/microdiscectomy alleviated my left leg pain for a few years. However, even though I got back to my pre-injury employment, my back pain never fully resolved.
4. 30. I had to be careful with the heavier tasks, like pulling cables and lifting poles. I continued to be aware of a dull ache in my back when I stood for too long or knelt down. I still experienced some intermittent tingling in my left foot.
5. 31. Despite these symptoms, I was managing okay at work for a while, until my back was aggravated during a period of heavy physical work in October and November 2019.
6. 32. In late October 2019, VicRoads directed Tyco Projects (Australia) Pty Ltd to check the bases of a large number of traffic light poles, for rust and cracking. I was assigned an area around Templestowe. I was directed to dig up the dirt around traffic light poles in this area, to undertake the checks.
7. 33. I was engaged in this work every day for a number of weeks. The digging was heavy and repetitive, involving sustained bending and twisting. When I hit hard dirt, I suffered jolts in my back.
8. 34. In the course of performing this work, my back pain increased. By mid November 2019, it was again severe, and associated with left leg pain.
9. 35. On 18 November 2019, I reported the injury to my manager, Matthew O'Sullivan. I lodged another WorkCover claim. The claim was accepted. I continued working on light duties.
10. 36. In November and December 2019, I had some sessions of treatment at Pinnacle Physiotherapy. Around Christmas 2019, I took a few weeks off, during which time my back felt a bit better. However, I was still worried about it.
11. 37. On 30 December 2019, I discussed my concerns with my general practitioner, Dr Gankin. He suggested an updated MRI scan of the lumbar spine, and review appointment with my treating surgeon Mr Vellore.
12. 38. I made appointments to have the MRI scan on 14 January 2020, and see Mr Vellore on 17 January 2020.
13. 39. Before these appointments could take place, I was involved in a car accident.
14. 40. On the afternoon of 13 January 2020, I was driving home from work in my company van. The traffic was banked up. I became stationary on Eastlink, near the Thompsons Road exit.
15. 41. Suddenly, my van was struck from behind by another vehicle.
16. 42. After the collision, I exchanged details with the other driver. I drove home and called my employer to report the accident.
17. 43. Initially, I thought that I was okay. However, when I woke up the next morning on 14 January 2020, my back was seized up. I struggled to get out of bed. I could barely walk.
18. 44. That day, I had the MRI of my lumbar spine, as previously planned.
19. 45. I was unable to return to work. On 16 January 2020, I lodged another WorkCover claim, for the transport accident. The claim was accepted.
20. 46. On 17 January 2020, I attended my appointment with neurosurgeon Mr Vellore. He told me that the MRI scan showed a recurrence of the L5-S1 disc prolapse on the left side.
21. 47. Initially, Mr Vellore gave me the options of a revision microdiscectomy or conservative management. I elected to continue with physiotherapy.
22. 48. In March 2020, I attempted to return to work on reduced hours and light duties. However, my back pain and left leg symptoms were aggravated by standing and driving. I was certified totally unfit for work again in early June 2020**.**
23. 49. Given my ongoing pain and disability, Mr Vellore recommended further surgery in the form of an L5/S1 posterior lumbar fusion.
24. 50. On 1 August 2020, I underwent an L5/S1 decompression, interbody fusion, intersegmental fixation, and posterolateral bone graft, with Mr Vellore at Mulgrave Private Hospital."[19]
25. In a further affidavit sworn 21 January 2025, the plaintiff broadly set out a description of his ongoing impairment consequences, but did not give any further evidence relevant to the causation issue.

1. The plaintiff was first cross-examined by counsel for the VWA about what he said in his affidavit about the onset of symptoms, where he described the return of back pain and left leg pain in October/November 2019.[20]
2. Counsel for the VWA cross-examined by reference to clinical records, to suggest to the plaintiff that there was no reference to leg pain in those records because the plaintiff did not, before the car accident, have leg pain.
3. By reference to the clinical records from Dr Gankin, the plaintiff was asked:

Q: "That's okay. Now, do you remember seeing Dr Gankin about your back on 3 December 2019?---

Q: Okay. And under the heading 'Examination', it says 'well tender in L L5 S1, neuro NAD'. Do you see that?---

Q: At that point in time, it's fair to say, isn't it, that you weren't suffering any leg pain; it was pain in the left side of your lower back?---

Q: But I can be corrected. 13 December, and this is a physiotherapy assessment, and I'll take you to that as well. That is on p148 of the TAC defendant's court book. And you go see Mr Toby McIntyre, your usual physiotherapist at Pinnacle. He was the usual one that you saw, yes?---

Q: And there's a record there. I take it you don't - do you remember seeing Mr McIntyre on that day? I mean, it's a long time ago?---

A: Oh I don't know about that day. I know I was for years, after the 2016, he'd sort of been helping me manage through - um after the first ah surgery and that sort of thing. Yeah.

Q: I mean, I keep asking you if you remember seeing these doctors, but ultimately you can't remember these individual attendances, can you?---

Q: No. So Thursday 12 December 2019 Mr Toby McIntyre notes 'WC Injurynet'. Who's that? Are they a sort of online or telephone doctor service or something, Injurynet?---

A: I think - I think they were part of the company.

A: Um I don't know exactly. They weren't part of - um through Dr Gankin or anything like that, I don't think. There were um - so maybe they were part of the - a Tyco or Johnson Controls thing?

Q: But you nonetheless contacted this Injurynet bunch and discussed your condition with them? And you went on to see the physiotherapist, is that what happened?---

A: I must have. If it's - if it's written here, I - I guess that's - but I can't remember exactly.

A: I do know - I mean, the Injurynet name I have seen before. So it does ring a bell. Um but ah yeah.

Q: No, that's okay. Nothing turns on it, Mr Zonneveldt?---

Q: So 'State C notes from 18/11', which is the previous consultation with Van Gameron. 'LBP, L greater than R, supra SIJ region', so lower back, I think that's fair to say. My learned friends can correct me. 'Digging caused onset. Settles over last few weeks, but still aware with sitting, driving'. Was that a fair reflection of what your back was like in mid-December 2019?---

Q: 'Light duties since onset but no time off work'. That's right, isn't it? You were doing your digging in October/November?---

Q: 'Stiff AM no night P'. So stiff in the mornings, no pain at night? That's a fair reflection of what your back was like at the time?---

A: Ah I don't know. I mean, I don't know if there's no pain um.

A: But I know it was daily. It was reoccurring again since years before. Um not that I can - yeah.

Q: Okay. And that's sort of mid-December you're suffering some ongoing lower back pain?---

Q: You see Dr Gankin again on 13 December, that's the following day, and that's on p87 of the TAC defendant's court book. It's a very short note. It says, 'Slowly better, continue current management'. Do you see that?---

Q: So your back was getting slowly better around that time?---

Q: You were still working, albeit with some restrictions?---

A: Um but - yes. So I was just floating along like that for that month.

Q: And it says, 'Continue current management'. And the current management at that point in time was physiotherapy?---

Q: Yes. On 19 December, you returned to see the physiotherapist, and this is at p147 over to p148 of the TAC court book?

Q: There's a record here by Mr McIntyre, stating 'light duties didn't exclude driving role. Increased driving this week, esp. yest. Four hours plus driving. Inc l LBP awareness by end of day. Seemed to settle this AM but back in the car this AM and return of tightness/pain. Phoned boss and went home. Last treatment very helpful.' Do you remember this in - I was going to say 'late', so around 19 December 2019, having to drive four hours, for some reason, and experiencing more awareness of your lower back?---

A: Um I don't know about the driving for that - I don't remember that, the day or anything. Um I mean, I do remember it - going - well, vaguely, from that long ago - of it going up and down with - - -

A: Um feeling good for a while then down again and then up again, and not sure what was going to happen.

A: Um if it was going to get better or go away or not. Or um - I just remember that, yeah, um over a couple of a months.

Q: But around that time, you weren't suffering any leg pain, were you?---

Q: Well, I'll put it this way, there's no note - - -

A: Yeah. Well, I know foot. I know - I know I've always had foot way back from even 2016. It started with the toe, big toe. And then over time it's just going up, and now there's half numbness in half of my front of the foot, and it just - it's worked its way upwards from the foot up. So it mightn't have been as severe as it is now, but, well, I'm - I don't know - guessing on and off at times. Um my symptoms have been very similar from 2016, except built up more. So that's all I - - -

Well, if I could take you to p146 and 147 in relation to an attendance on 15 January 2020. Mr Toby McIntyre has noted - - -

Q: 15 January, there's a - and I'm not going to put this whole note to you. I'm going to put the fourth line down at the top of 147: 'Today, still mover lower LX soreness, and some L heel sympts present since yest IM but not prior to MVA.' It's the case, isn't it, that the foot symptoms that you were suffering after the accident, the left heel symptoms, which were pain or numbness - what were they?---

Q: They weren't present immediately prior to the motor vehicle accident but arose after it?---

Q: But if it says there - that's what it says, 'Not prior to MVA,' have you got any reason to dispute that?---

1. Next, counsel for the VWA cross-examined the plaintiff about his restrictions for work before the car accident by reference to medical certificates as follows:

Q: "Yes. (To witness) This had you certified for preinjury employment from 10 December 2016. And you were certified for preinjury employment from 10 December 2016. Yes?---

Q: Yes. And the next certificate that you got - and this was from Dr Gankin - was on 3 December 2019. And that's on p166. States, under 'Physical Function,' comments, 'No digging/pulling cables, no lifting greater than five kilograms. Were they the restrictions that you were working under in the start of December 2019?---

A: Ah yes. Yes. I'm - I'm unsure, because I can't remember this far back, um since the last five years of - yeah.

Q: And then 13 December 2019 is the next certificate on 168 of the defendant's court book, under 'Physical Function.' Again, says, 'No digging/pulling cables. No lifting greater than five kilograms'?---

Q: So through the start of December 2019, you were working under the same restrictions at work. You were continuing to work full time but with some restriction?---

Q: And then 170 is the next one that was received. 30 December 2019, you went and saw Dr Gankin, and Dr Gankin, under 'Physical Function' stated, 'No digging/pulling cables. No lifting greater than 10 kilograms.' Do you see that?---

Q: So it's the case, isn't it, that your restrictions were being eased towards the end of December?---

1. Next, regarding the referral to Mr Vellore, counsel for the VWA cross-examined the plaintiff as follows:

Q: "And I say Vellore, Vellore. I'll say Vellore. It states, 'Stable. Continue current management.' At that point in time, the current management was physiotherapy?---

Q: You were referred to Mr Vellore. And this is in your own affidavit, you stated that - you raised your concerns with Mr Gankin you were worried about your back, even though it had improved a little bit?---

Q: And he referred you to Mr Vellore. And, at that point in time, you weren't complaining of any leg pain, were you?---

Q: On 2 January, you go to see your physiotherapist. And this is Mr McIntyre, and this is at p146 of the defendant's court book. 2 Jan. Mr McIntyre's noted, 'Coped well over holidays and feeling much better. Has worked MT the Monday, Tuesday, Thursday this week. Mild mid-LX. Aware. Tight but nil specific pain. LXFIS mid-shin, mild. Aware. EIS and LF, mild. EOR. Aware.' What were your symptoms in January 2020?---

Q: That's all right. And the attendance directly after that on 9 January 2020, it says, 'Case conference call to Rachael, OH&S at Matt's work.' Were you present during this case conference?---

A: I'm not sure. Um I can't remember there either with that.

Q: It's the case, isn't it, that you were sent to Mr Vellore for the purposes of assessing what restrictions you might need to work under for the foreseeable future?---

Q: No, no, no, just before, when you were referred to see Mr Vellore by Dr Gankin. What's your understanding as to why you were referred back to see Mr Vellore?---

A: Well, because my symptoms were up and down. Um they get better at times and then they'd be - get worse again, a week or so later, even though I was on lighter duties. Um and ah it was very similar to what I had in 2016, except um at a higher level, so I was worried about what was going on and what had happened in that segment again from three years before, yeah.

Q: Yes. So did you ask Dr Gankin to refer you back to see Mr Vellore?---

Q: And the referral letter, which is at p47 of the plaintiff's court book, this is a referral letter to Mr Vellore from Dr Gankin. He states, 'Thank you for seeing Matthew Zonneveldt for an opinion on management of his lower back pain. I would appreciate your advice, especially re long-term prognosis and the long-term restrictions for his work.' You weren't going back to Mr Vellore because you thought you were going to have to have more surgery, were you? No, not - not then. Um I just wanted to know what was going on, um in the last - after the last two months of um - - -

A: Yeah, so, no, I didn't have anything against surgery then.

Q: And if I can take you back to that Pinnacle Physiotherapy note?---

Q: Which is 146 of the defendant's court book. It states that, 'Matt has surgical review next week and will have MRI first [this a note by Mr McIntyre] initiated by WorkCover doctor.' Can I ask you who that could possibly be referring to? 'Initiated by WorkCover doctor'?---

1. The plaintiff was then cross-examined by senior counsel for the TAC, first about the back surgery in 2016 and how he was able to resume full hours and duties in about mid-2017.[24]
2. Next, he was cross-examined about his affidavit evidence that the 2016 surgery alleviated his left leg pain but his back pain never fully resolved. He said that was correct.[25]
3. He was asked whether, between the first back operation in 2016 through until October and November 2019, he had to still be careful with his back and he said "yes", and that he continued to have intermittent symptoms.[26]
4. The plaintiff next confirmed that he had continued to attend Mr Toby McIntyre, physiotherapist, after returning to work in 2017.[27]
5. Next, in cross-examination by senior counsel for the TAC, the plaintiff described the return of symptoms in or about November 2019 and said the symptoms were again severe. He was asked whether those symptoms were associated with left leg pain and said "yes".[28]
6. The plaintiff was asked specifically about left leg pain as follows:

Q: "And just asking you about the left leg pain in particular, had that been present off and on since your return to work in 2017?---

A: Yes, yes. Less noticeable, um unless it - unless it exacerbated a bit. Um it work of worked together, the back and the - it would amp up the leg at times, when I had a sore back.

A: Still does. Um so the two would go hand in hand usually um.

Q: All right. And the benefit you got from that original surgery back in 2016 was that the leg pain eased up a fair bit?---

A: It was - it was mainly just foot pain, um and yes, it did after that operation. Um and then it would appear now and then when I had back pain or sitting for too long, um standing for too long, um in the driving or, yeah, with the sitting.

Q: All right. So it was made a fair bit better but not cured?---

1. The cross examination about the onset of leg pain continued as follows:

Q: "You'd get some leg twinge or something from time to time?---

A: Yes. Yeah. Yes. In the foot mainly, and then it worked its way up the leg over time as the back got worse. Um yeah. So it - it originated in the foot.

Q: But what came on after the work duties of November of 2019 was left leg pain again?---

A: Yeah, mainly foot. Foot and ankle. Yes. And some - I can't remember if it's - I mean, yeah, it's been on and off for - well, it's - yeah, nine years, I guess, now. So yeah.

Q: So then I think you've been through - you put in a claim, you went on to light duties, and you continued on light duties through to Christmas; is that right?---

Q: And then you had a few weeks off after Christmas, and your back felt a bit better after not working for a few weeks?---

Q: But I gather from what you say that your concerns, your back pain and to some extent your leg pain, never went away in that period?---

A: No, it was still worse than before that instance. So it was still worse than October, so whichever. It was still - um so that's why I was still concerned about what was going on.

Q: And was it that reason that took you to see Dr Gankin on 30 December, that is, things were sort of about the same, but they weren't getting any better, and you had these ongoing problems, and I think you said to His Honour these seemed very familiar to what happened back in 2016, and that was and that was your concern; is that right?---

A: Yes, yes and the foot would - had a heightened pain, I guess, and shooting and everything um up - instead of just the toe, it had moved up further as well, and um so I was worried, yeah, what was going on, and it was very similar.

Q: And the discussion then with Dr Gankin was, well, you better go back and see the surgeon Mr Vellore?---

Q: And get a new MRI, see if things have changed?---

Q: And so he booked you in for the MRI on the 14th and then Mr Vellore on 17 January of 2020?---

Q: Now, in the meantime, you have the car accident on 13 January 2020?---

1. The plaintiff was then cross-examined about the circumstances of the car accident, in which he confirmed how he braced for impact, but there was not much damage to his van. He accepted that the van was driveable, he did not immediately need to attend hospital or the general practitioner, and that he did not immediately experience increased symptoms after the car accident.
2. The plaintiff described in cross examination how he woke up the following day:

A: Ah I was stuck in bed, you know, was seized - seized in bed, and, yeah, that's when I was really like, well, what the heck is going on. So yeah - from - - -

Q: And then you went and had the MRI that day, that is, the day after the accident?---

A: I'd already - yes. I'd already booked it in with um ah - wherever they did the MRIs. Um anyway, one of those, but so I booked it in days earlier and then just went ahead with it thinking I was really sore and hanging onto the wheel trying to get in the car, but I thought, well, it's - I just want to know what the heck's going on um with that, and I was half thinking of putting it off, but then I thought, well, then I've got to wait weeks and - with Mr Vellore, and, yeah, so I just went ahead um, got it done and - yeah, and then saw Mr Vellore on the 17th.

Q: And when you saw him on the 17th, he gave you the options of revision surgery or conservative management?---

Q: And at that stage, you elected to go with the conservative management for a while and see how that went?---

Q: And in terms of Mr Vellore - if Your Honour will just excuse me for a second. It would be wrong to say, would it not, that you were cured after your initial surgery?---

1. In re-examination, the plaintiff was asked questions relating to his left leg or foot symptoms as follows:

Q: "You said that repeatedly before the car accident, you would have symptoms - I think you said mainly in the foot, started mainly in your foot. What foot was that?---

Q: The left foot. And you said that it would - was slowly going up. Over what period of time was the pain slowly going up from your foot into your leg before the accident?---

A: Yeah. Um I don't know, probably the next day or two. I mean, it's hard to - I would say the next day or two. I know it - the pattern it's been is it works conjunctive with the back. So I - I know that my back was a lot worse that very next day. The foot might have been that day even.

A: Yep. Because usually, if - what I've had, and it still has now, is if this hypes up a bit, so does my foot, and, like, it happens a lot more now um than it used to. Um it'll even go up to my thigh.

A: Right. Well, well, I don't remember exactly. Um I just know the pattern it's been is - because my back was a lot worse, that's what I'm trying to - so I don't remember exactly, but if my back's a lot worse, usually the foot would go with it. That's usually what has happened for the last nine years um and progressed worse and worse over that.

Q: So you said that after the accident on that date, you agreed that you didn't have symptoms, but the next day that you were stuck in bed. In fact, it seized up, I think was the - you were stuck in bed?---

Q: Could you just explain what caused you to be stuck in bed?---

A: Yes. I was um just lying down, um woke up and went to - to get out, and I was just stuck straight um and had shooting pain in the back straight away ah and had to sort of - ah just try to bend, like, trying to bend to get my legs out. I - I couldn't. There was a lot of pain in it. So I was just sort of rolling out um and grabbing the floor with my hand until I slowly sort of bent slowly um and then got up and told my wife and that then that - this and - and what was going on and yeah. Um - - -

Q: And had you ever experienced a situation where you was stuck in bed like that because of symptoms before this accident?---

Q: When was that? Stuck ah way back in - before the first accident, um way back with - - -

Q: So you're talking about the WorkCover accident?---

A: No, no. Yes, sorry. Yeah, the WorkCover accident, yeah.

A: Not as severe, but yes, the similar thing, yeah.

Q: When you attended Mr Vellore on 17 January after the car accident, what symptoms do you recall experiencing when you saw him?---

A: Ah back pain, um shooting, ah left foot pain, um maybe leg. Can't remember there how far it went up then. Um yeah.

Q: And was there any difference in symptoms you were experiencing in your back after the accident - car accident compared to how you were immediately before the car accident?---

A: Um just a lot more painful and severe um with bending or sitting down. Um I had to grab onto ah a chair or something to hold while I would get in that position, and then I was okay in between sitting or standing. It was just - that was the difficult part between the two um so - - -

Q: Well, just before you move on, if that's what you were conveying then that it was a lot more severe around the time you saw Mr Vellore again, what happened, say, in the several weeks after you saw him with his symptoms. Do you remember?

A: Um yeah. I think they - no, I don't. No, I don't, really. I'm trying to think maybe they went up and down. It would go up. It's just - no. I don't exactly. It's just - there's been so much of - yeah.

A: No, no. I try to. It's just been years of the same or similar things that have gone on up and down and - yeah, um no. I don't - don't

Q: Just one thing I want to clarify with you. In that Christmas period between 2019 and 2020, so before the car accident, did you have any time off work over that period?---

Q: Do you recall how your back symptoms were over that and your leg symptoms were over that period before the car accident?---

Dr Leonid Gankin, General Practitioner at Beach Street Family Medicine

1. The plaintiff's long term general practitioner ("GP") clinic is Beach Street Family Medicine. The notes of that clinic are amongst the tendered evidence and commence with an attendance on Dr Leonid Gankin on 11 April 2016.[33] Thereafter, there are sporadic attendances at that clinic for back pain, including an attendance on Dr Pavlo Korol on 23 November 2017 where the plaintiff was cleared after the first back operation to return to normal duties but with a maximum 25kg lift.[34]
2. To briefly interrupt the evidence from Dr Gankin, in addition to Beach Street Family Medicine, the plaintiff occasionally attended doctors at Tanti Creek General Practice for back and left leg pain. The notes of that clinic are also in evidence commencing on 16 July 2012.[35] There were sporadic attendances for back pain at the Tanti Creek General Practice, including in 2016 before the first surgery, and then after that surgery. Then on 21 May 2018 he attended Dr Vishal Bhasin who noted "Better since surgery, but currently having a flare up...Lower back pain, slight L Leg 'twinge'.[36] Next on 24 May 2019 the notes of the Tanti Creek General Practice record an attendance at which the plaintiff sought a script for a medication (Panadeine Forte) "for his back pain when it flares up".[37] Finally, on 1 November 2019, Dr Isaac Olaniyi recorded an attendance "Also for low back flare up. For panadeine forte."[38]
3. Returning to the evidence from Beach Street Family Medicine, there was then a gap in attendance, until the plaintiff attended Dr Leonid Gankin on 3 December 2019, who recorded "Has been doing a lot of digging over last few weeks. Developed more low back pain". An examination was described as "Well, tender in L L5/S1, neuro nad".[39]
4. The plaintiff attended Dr Gankin on 13 and 30 December 2019[40] with no mention of leg pain recorded in the notes. He next attended Dr Gankin on 15 January 2020, who recorded "Was involved in low speed MCA, LB is worse, just had MRI-scan, seeing his specialist in 2/7". Dr Gankin recorded the examination as "Well, tender, neuro no changes".[41]
5. There was another attendance on Dr Gankin on 21 January 2020, before he saw Dr Gankin again on 28 January 2020 and where for the first time after the car accident the doctor's notes mention left leg pain. Dr Gankin recorded "Stable, LBP radiating to L leg, will contact his surgeon (not better on Solone).[42]
6. On 30 December 2019, Dr Gankin referred the plaintiff back to Mr Vellore, in a short referring letter as follows:

"Thank you for seeing Matthew Zonneveldt for an opinion and management of his LBP. I would appreciate your advice, esp re: long term prognosis and long te[r]m restrictions for his work."[43]

1. Next, Dr Gankin wrote to the plaintiff's solicitors on 7 May 2021 as follows:

"1. Matthew injured his low back at work in 2016 and had spinal surgery and recovered but re-injured in November 2019. He had back surgery in August 2020 and is going through rehabilitation program.

1. His diagnosis is - chronic low back pain 2nd to L5/S1 disc prolapse on

1. Please find the latest MRI scan report.
2. Treatment as above
3. His injuries are consistent with the stated cause.
   1. Matthew has no present capacity to do pre-injury duties. He can do light duties as per work cover certificate . His prognosis for future capacity is unknown.
   2. His prognosis is guarded as he may need spinal surgery in future plus physiotherapy, medications and son (sic) on.
   3. At this time in my opinion Matthew is receiving appropriate treatment."[44]
4. Dr Gankin wrote again to the plaintiff's solicitors on 9 July 2024 and said:

Matthew injured his lower back first time in 2016, then reinjuring it again in 2019 and 2020.

As a result of his injury he developed chronic severe lower back pain radiating to his L leg/foot. He also suffers from anxiety/depression secondary to chronic pain.

1. 3. The results from any scans, x-rays or other relevant tests:

Please find enclosed patients CT-scan and MRI-scan reports.

Had multiple back surgeries, on pain killers, physiotherapy, pain management course, counselling.

1. 5. Whether the injuries are consistent with the stated cause:

Yes, the injuries are consistent with the stated cause.

1. 6. My prognosis and estimate of future medical treatment

Poor prognosis, may need surgeries and so on in the future

1. Whether the client is receiving appropriate treatment and whether other assistance may be available and of benefit

In my opinion, Mr Zonneveldt has been receiving appropriate treatment. Financial hardship causes a lot of distress."[45]

1. Next, Dr Gankin wrote a "To Whom it May Concern" letter on 18 November 2024 and said:

"Mr Matthew Zonneveldt has been suffering from chronic severe low back pain which radiating to his L leg over last 8 years. He had multiples back surgeries which did not help.

In my opinion he would not able to go back to work for prolonged period of time."[46]

1. That is the extent of the evidence from Dr Gankin. In respect to causation, the clinical notes from 3 December 2019 until 28 January 2020 make no mention of left leg pain. It may be that the plaintiff did not report left leg pain. It is possible, although perhaps unlikely, that Dr Gankin did not make a note of left leg pain. I am conscious about the clinical entries that there is a limitation to the weight to attach to them, more so where the doctor is not called to give evidence.[47]
2. Dr Gankin's evidence was not only in clinical records. He provided reports as I have set out. Overall, Dr Gankin's evidence was that the plaintiff injured his back for the first time in 2016, then re-injured it in 2019 with Tyco and injured it again then in 2020 (which must be a reference to the car accident). Further, as noted in his last correspondence, Dr Gankin said that the plaintiff had been suffering chronic severe lower back pain radiating to his left leg for over eight years.
3. Bearing in mind this is a gateway proceeding, the evidence from Dr Gankin supports a conclusion that the plaintiff had chronic back pain, before and after the car accident. In addition, the evidence from Dr Gankin supports a conclusion that the plaintiff had a return of left leg symptoms before the car accident. The tenor of the evidence from Dr Gankin is that the back and left leg symptoms were present before the car accident but were made worse by the car accident.

1. Mr Toby McIntyre is a physiotherapist who has treated the plaintiff. Clinical records and items of correspondence from him are in evidence. Based on that evidence, the plaintiff attended for physiotherapy at Mr McIntyre's clinic on 11 occasions between 2012 - 2014, 2 times in 2017, 3 times in 2018, 5 times in 2019 and then 11 times in 2020.
2. In a letter to Dr Gankin dated 6 February 2020, Mr McIntyre wrote:

"As you are aware Matthew reinjured his lower back towards the end of last year. This was related to increased digging in hard ground. He noted a recurrence of central lower lumbar, left gluteal, and left leg symptoms.

Over the summer break he Improved considerably to the point where he was ready for a self-managed strengthening program.

Unfortunately Matthew was involved in a motor vehicle accident whilst driving home from work on Jan 13 this year. In the days following this, Matthew's lower back and leg symptoms returned with increased severity. He reported heel numbness and pain, calf tightness and pain, and aching to left thigh.

In the weeks following this Matthew was performing more driving hours at work which seemed to further exacerbate his symptoms.

Following the MVA, Matthew had an MRI which had been pre-organised as part of an orthopaedic review. I haven't seen the surgeon's report yet.

Upon review today, Matthew's symptoms have settled significantly. His heel is now symptom-free, and the intensity of calf and thigh sympts have decreased. Matthew has been diligent not to drive unless necessary, and has been resting in lying, with minimal sitting. He has some gentle movement exercises, and today we've reinforced some very gentle trans abdomnial/pelvic floor exercises.

I'll continue to monitor him, and progress his rehab exercises as appropriate."[48]

1. Mr McIntyre wrote again to Dr Gankin on 23 March 2020 and said:

"Matthew is reporting ongoing left leg radicular symptoms to thigh, lower leg and heal. He also reports ongoing LBP.

Since my last correspondence in Feb, we have seen a clear pattern of his radicular symptoms easing at home with rest/walking/avoiding sitting, followed by a return to work and a resumption of symptoms.

Matthew feels he is coping well with the duties whilst at work In his limited capacity. Unfortunately though the driving is a consistent aggravating factor for him. He continues to drive a manual vehicle.

I would recommend for his next cert of capacity that driving be limited to 15 mins, and that he be changed into an automatic vehicle, and may need to try several vehicles before he finds one that is appropriate.

It seems that Matt's symptoms are unable to improve whilst he Is driving 30mins or more In his current vehicle.

If you have any queries, please do not hesitate to contact me."[49]

1. Mr Mcintyre's notes are like Dr Gankin's, with no specific mention of leg pain before the car accident. But, again like Dr Gankin, his report says that the plaintiff had a return of left leg symptoms before the accident. I accept that evidence. It is consistent with my earlier conclusions about the onset or return of left leg symptoms.

1. Mr Yagnesh Vellore, neurosurgeon, first consulted with the plaintiff on 11 May 2016, at the referral of Dr Korol. In a letter of that date back to Dr Korol, Mr Vellore said the plaintiff had suffered a work-related injury four weeks previously and was having shooting pains down his left leg in the S1 distribution.[50]
2. The next relevant correspondence from Dr Vellore is dated 13 July 2016, when he wrote back to Dr Korol and said the plaintiff was six weeks after having a left L5-S1 microdiscectomy. Mr Vellore said the plaintiff "has had a great result and is completely pain free in his leg" and because the plaintiff was doing so well, he was discharged from his care.[51]
3. Then, after the car accident, I now set out in full what Mr Vellore wrote in his letter back to Dr Gankin dated 17 January 2020:

"Thank you for asking me to [see] Matthew once again. I had operated on him in 2016 in the form of left L5-S1 microdiscectomy. The patient was cured after the surgery. He continued to work as an electrician doing heavy digging and twisting activities which have recently exacerbated his symptoms. He had also a motor vehicle accident with complicating matters which made his left leg symptoms worse. Overall, he is not too bad at the moment, having mild back and left leg symptoms, much better than what he was prior on (sic) the operation. His recent MRI scan does demonstrate some very mild recurrence of disc prolapse at the L5-S1 level on the left which is likely related to the MVA.

Examination did not reveal any motor deficits. Therefore, at this stage, I have given him the option of continuing conservative treatment; failing which he could have a redo microdiscectomy. I have cautioned him against performing any heavy lifting, bending or twisting in the interim."[52]

1. Whether Mr Vellore cured the plaintiff in 2017 is possibly up for debate. But as Mr Vellore noted, the plaintiff had a return of left leg symptoms before the car accident, hence his reference to the car accident making those symptoms worse.
2. Regardless, next, by letter dated 29 April 2020, Mr Vellore wrote to the WorkCover agent and said:

"I had a teleconference today with Matthew regarding his situation. He has had recurrence of his left L5-S1 disc prolapse after a motor vehicle accident in January of this year. This is on a background of having had success after left L5-S1 microdiscectomy for work-related back injury back in 2016. He had commenced working once again and had noticed recurrence of symptoms mainly in the left leg in the S1 distribution. He has had exacerbation of the symptoms in recent times."[53]

1. There are then further items of correspondence from Mr Vellore to people, including Dr Gankin and the WorkCover agent. By 5 October 2020, Mr Vellore was seeking permission for approval for an L4-S1 posterior decompression, L4-5 interbody fusion, L4-S1 intersegmental fixation and L4-S1 posterolateral bone graft.[54]
2. On 16 December 2020, Mr Vellore wrote again to Dr Gankin, noting that the plaintiff was still awaiting approval for further surgery.[55] As already mentioned, the plaintiff did go on to have more surgery, but that surgery was performed by Mr Chan.
3. That is the extent of the evidence from Mr Vellore. Overall, it supports a conclusion that the plaintiff again developed back pain and left leg symptoms from his work with Tyco in late 2019, before the car accident exacerbated those symptoms. Therefore, his evidence is also consistent with the opinion I have expressed about the evidence from Dr Gankin.

1. Mr Patrick Chan is a neurosurgeon and spinal surgeon to whom the plaintiff was referred by Dr Gankin for a second opinion.
2. Mr Chan first met with the plaintiff and wrote back to Dr Gankin on 17 May 2021. In that letter he set out the history recorded by him, of the plaintiff having an initial injury in 2016, with back and left leg pain requiring surgery on 31 May 2016.
3. In the initial letter back to Dr Gankin, Mr Chan then recorded that from about November 2019 the plaintiff developed "more and more lower back pain. This was further aggravated on 13 January 2020 when on his way home from work, his car was rear-ended by another car. This resulted in worsening lower back pain and a pain that radiates from his left calf into his left ankle".[56]
4. Mr Chan next wrote to Dr Gankin on 12 October 2021, describing the plaintiff as having persistent left L5 pain,[57] and then wrote again Dr Gankin on 29 October 2021, setting out further treatment options, including further surgery.[58]
5. Mr Chan then provided a report dated 18 December 2021. Insofar as relevant matters of history, Mr Chan described the plaintiff injuring his back in 2016, resulting in lower back and left leg pain, for which the plaintiff had surgery. Mr Chan wrote that "he had initial improvement but had subsequent aggravation on 13 January 2020 when his car was rear-ended by another car when he was on his way home from work".[59]
6. Obviously, the history recorded by Mr Chan in this report is incomplete as he makes no mention of the return of (at least) back pain in late 2019, as set out in his initial letter back to Dr Gankin.
7. Mr Chan then wrote to Dr Gankin on 11 August 2022, describing how the plaintiff had been admitted to the Epworth Hospital that day and had undergone an L5-S1 anterior interbody fusion and removal of previous left-sided posterior interbody cage, because there had been a non-union.[60]
8. There are then further letters from Mr Chan back to Dr Gankin to do with his ongoing management of the plaintiff after surgery, but nothing that is particularly useful for a consideration of causation.

1. The plaintiff was referred to Advance Healthcare for pain management after the car accident. A multi-disciplinary pain management assessment was prepared by various practitioners at that clinic on 10 February 2021.[61] Insofar as a history of injury was obtained, Advance Healthcare recorded:

"Mr Zonneveldt reported a long history of mild lumbar pain associated with work with no time off work or treatment. In 2014 there was a sudden onset of lumbar pain with a short period of treatment and time off work.

In early 2016 he was smashing concrete at work when he noticed a sudden of lumbar and left leg symptoms. He went off work, had physiotherapy which was ineffective. The lumbar pain was significantly worse than the leg symptoms and he came to L5/S1 discectomy in later 2016 with Mr Vellore. The symptoms were relieved by this treatment and post operative physiotherapy with 6 months required to return to normal duties with minimal pain.

In November 2019 there was a recurrence of his pain with digging which he reported. He was put onto light duties and commenced physiotherapy with significant improvement until a MVA in January 2020 (on the way home from work in a work van). He was stationary at the time and was hit from behind. There was no increase in pain at the time or medical treatment provided but the next day there was significantly increased lumbar pain. There was a period of time off work for a few month and physiotherapy. The driving aggravated the symptoms and there was an onset of left leg symptoms (calf tightness) eventually coming to lumbar fusion in August 2020. This removed the calf tightness but there was an immediate onset of new left leg numbness and sharp left>right shooting/sharp pain commencing 4 weeks post surgery. Prednisolone was trialed (with wheezing noted) with no change after 4 days. He has been on pregabalin since the surgery and is uncertain of the effect of this."

1. Jessica Anwyl is a physiotherapist at LifeCare Frankston Physiotherapy, where the plaintiff has attended for treatment. There is no report from Ms Anwyl, although her clinical records are in evidence.
2. Those clinical records reveal that the plaintiff first attended her for physiotherapy on 11 April 2016.[62] There were then numerous attendances throughout 2016 until the last documented attendance on 22 June 2017. The evidence in Ms Anwyl's clinical records is of relatively limited utility for the issues in this proceeding, but I do note that on several occasions in early 2017, the plaintiff presented to her with ongoing left-sided pain.[63]

1. Dr Mohammed Awad is a neurosurgeon to whom the plaintiff was referred for medico-legal assessment at the request of his solicitors.
2. Dr Awad reported for the first time on 7 February 2023.[64]
3. Regarding the history of presenting complaint, Dr Awad recorded:

"Matthew Zonneveldt is currently working 15 hours a week as an electrician doing part-time work by way of a previous injury.

His background history is that he was an electrician working on traffic lights and sustained his first injury on April 9, 2016. This was a work-related incident where he was cracking concrete with a crowbar, and in doing so, he started to experience shooting pain in the back, ending up in him having surgery on May 31, 2016. This was in the form of a left L5-S1 microdiscectomy. Post-operatively, things improved, and eventually, he got back to work.

On November 15, 2019, he was digging at work and, following some heavy duties, re-injured his back. This required him to go back to light duties.

He eventually started to make a good recovery from this, but unfortunately, as his symptoms were slowly progressing, he was requested to have a further MRI scan by his surgeon, Dr Yagnesh Vellore.

Unfortunately, before he could have his repeat MRI scan, he was involved in a road traffic accident on January 13, 2020. He was rear-ended and, at the time, felt okay, but by the next morning, he had significant pain and stiffness. He eventually had his MRI scan done, which showed the situation to be worse than prior and so he was recommended to have a fusion, which he had done on August 2020. This was a posterior fusion at L5-S1."

1. Dr Awad then reviewed the relevant radiology and expressed opinions about the diagnosis of injury. In respect to the question of causation, he said:

"In my opinion, the road traffic incident on January 13, 2020, was most likely a significant contributing factor to the aggravation of his lumbar spondylosis. In my opinion, this incident remains a significant contributing factor to his ongoing pain, disability, and requirement for treatment." [65]

1. Having proffered an opinion about causation, Dr Awad was asked to answer specific questions, which he did as follows:

(a) Your diagnosis, as sustained in the incidents on;

1. The diagnosis sustained in the incident on April 9, 2016, was likely an L5-S1 disc prolapse that ultimately required a microdiscectomy and the patient made a decent recovery from this.
2. November 15, 2019, was most likely an aggravating injury, aggravating his underlying L5-S1 pathology.
3. With regards to the road traffic incident on January 13, 2020, it is likely that this aggravated the L5-S1 situation further thus requiring the fusion surgery that the patient ultimately underwent and then had to re-undergo as well.

(b) Please comment on the extent to which the latter two incidents were an exacerbation or aggravation of a prior injury, or a new injury?

I believe that the latter two incidents were exacerbations and aggravating factors from the previous April 9 injury.

(c) The likelihood, if any, that our client would have required a further surgery to his lumbar spine, if not for the transport accident on 13 January 2020? When considering your response, please reference the medical material between 15 November 2019 and 13 January 2020.

It is possible that the patient would still have required the surgery in all fairness, if not for the transport accident on January 30, 2020, given the patient was already further symptomatic from the incident on November 15, 2019.

It is possible, however, that the incident on January 13, 2020, did push the patient over the edge and possibly contributed to the radiological changes that he had on his MRI scan, given that the MRI scan only happened after the road traffic incident by chance." [66]

Dr Symon McCallum, anaesthetist and pain medicine specialist

1. Dr Symon McCallum is an anaesthetist and pain medicine specialist to whom the plaintiff was referred by his solicitors.
2. Dr McCallum provided a report dated 28 October 2024 in which he set out the relevant history as follows:

"On 9 April 2016, he was using a crowbar. He developed back and left-sided leg pain. He saw Mr Vellore, who performed a microdiscectomy. Mr Zonneveldt returned back to full time and full duties around midway through the next year. He did not have a total resolution of the pain. He still had lower back and leg pain. It would niggle occasionally.

On 10 November 2019, he was digging for several weeks. This flared up his lower back and leg pain. He went to his GP. He had physiotherapy. He went to light duties.

He was going to see Mr Vellore and have another scan, but was rearended on 31 January 2020. This increased his lower back and left-sided leg pain"[67]

1. Next, Dr McCallum was also asked various questions which he answered as follows:

"3. Whether you consider our client's employment with Johnson Controls Pty Ltd including the work he was required to perform on about 9 April 2016 and in about October/November 2019, to be the cause of his injuries:

(a) lower back, left leg, scarring only and the sequelae.

Yes. It does seem that the nature of his job and the incident that started on 9 April 2016 is the start of a journey that required several back operations. This resulted in lower back and leg pain. It never totally resolved.

1. Whether you consider that the motor vehicle accident on about 13 January 2020 to be the cause of his injuries:

(a) lower back, left leg, scarring only and the sequelae.

Yes. I do believe the motor vehicle accident on 13 January 2020, aggravated the pre-existing problems with his lower back and leg." [68]

1. Mr Ash Chehata is an orthopaedic surgeon who examined the plaintiff at the request of his solicitors.
2. In a report dated 29 October 2024, Mr Chehata recorded the following background history:[69]

"On the 9th of April 2016, he was using a crowbar to crack the concrete around the traffic light pole in Pakenham when he felt severe pain in the back with ongoing symptoms which did not resolve spontaneously.

Mr Zonneveldt eventually had imaging with CTs as well as MRI scans, which confirmed a large disc bulge at the level of L5-S1, and he ultimately required operative intervention in 2016 with a microdiscectomy at the level of L5-S1.

He made a steady and slow recovery with regard to the back pain after the night of his scheduling, and was able to return back to his full duties, ultimately re-injuring his back in and around October/November of 2019.

At this point, he was required to dig around traffic light poles in the Templestowe area for sustained periods, and at that point, re-aggravated the back with further imaging, including MRI scans confirming early degenerative changes at the L5-S1 region likely related to the microdiscectomy.

It would appear that from there on in, although he was able to recover from the initial aggravation in the time between when there was potentially further investigations for an operative solution, he was then involved in a road traffic accident on 13 January 2020, where he was rear-ended whilst driving home from work.

Mr Zonneveldt found that although the motor vehicle accident was very minor, the following day his back seized up, found himself in severe pain, stiffness, and an MRI scan confirmed early degenerative change at the levels of L5-S1 requiring surgical intervention, and ultimately on the 1st of August 2020, had a L5-S1 compression, interbody fusion, and intersegmental fixation, and posterolateral bone graft with Mr. Vellore.

Although the plan was in fact an L4-5 fusion, after an independent medical examiner and a quorum was involved in the decision making, it was felt that the L5-S1 fusion was far more likely to work, and subsequently performed this without any complications."

1. Regarding the cause of the plaintiff's injuries, Mr Chehata said:

It's very likely that the patient's employment at least aggravated pre-existing early degenerative change at the level of L5-S1 in terms of a discogenic change and the likely disc injury, which was then aggravated in October and November of 2019.

After the microdiscectomy, the likelihood of progressive further recurrence of pain at the same level is also considerable and obviously the employment which requires manual work, digging, pushing and pulling can be a significant contributing factor. After the microdiscectomy, the likelihood of progressive further recurrence of pain at the same level is also considerable and obviously the employment which requires manual work, digging, pushing and pulling can be a significant contributing factor.

Question 4. Motor vehicle accident as the cause of his injuries:

The motor vehicle accident on the 13th of January 2020 seems to be quite innocuous.

It's very likely that there was a simple aggravation of the already progressive degenerative change that was occurring at the levels of L5-S1.

This then contributed to the necessity for further operative intervention." [70]

1. Dr Hazem Akil is another neurosurgeon to whom the plaintiff was referred by his lawyers for medico-legal assessment.
2. In a report dated 18 November 2024,[71] Dr Akil obtained a history as to the mechanism of injury as follows:

Mr Zonneveldt sustained a work-related injury on 09/04/2016 while working as an electrician. He was using a crowbar on concrete while replacing traffic poles when his back 'jarred' and he experienced sudden back pain. Initially, the pain was localised to his lower back and felt like a pulled muscle. He managed to complete the job with assistance but experienced progressively worsening pain throughout the day. By the afternoon, he developed left leg pain, and by nighttime, he was experiencing significant pain that made transitioning between sitting and standing extremely difficult."

1. Dr Akil went on to diagnose work-related L5/S1 discogenic pain and residual left S1 radiculopathy. He said "his work is the cause of his current condition".[72]
2. Dr Akil then went on to say further that "the car accident further exacerbated his lower back condition and contributed to it but it is not the main cause".[73]

1. Completing the medico-legal evidence obtained by the plaintiff is a report from Dr Joseph Slesenger, specialist occupational physician, dated 18 November 2024.[74]
2. Regarding the history of presenting complaint, Dr Slesenger recorded:

"Mr Zonneveldt advised that he was injured during the course of his employment.

He was using a crowbar to crack concrete in order to remove a traffic pole in Pakenham. He advised that he was smashing the crowbar downwards repetitively when he developed lower back pain.

He reported the injury and attended his GP. He was referred for investigation. He was diagnosed with a disc prolapse on an MRI scan and was referred to Mr Vellore. Mr Vellore recommended surgery and he underwent an L5/S1 laminectomy and microdiscectomy in May 2016.

He confirmed that he had ceased work for about three months. He returned to work on a graduated return to work plan and was able to return to his pre-injury duties, working his pre-injury hours over a period of about six months. During this time, he engaged in physiotherapy and an exercise program. He also engaged in a hydrotherapy program.

He confirmed that his symptoms gradually improved, although he had residual lower back pain. Nevertheless, he appears to have ceased physiotherapy treatment and was not attending his GP. He appears to have been cleaved to return to work, performing his pre-injury duties.

He advised that his mental health was well-preserved during this time.

He advised that he suffered a further injury during the course of his employment with Johnson Controls. This occurred in October/November 2019. He was working on a repair site in Templestowe. He advised that he was checking the poles for rust and he was required to dig the holes around the poles. He advised that he was digging through dirt, manoeuvring the dirt, piling the dirt around the site, he would then perform checking and then he was required to replace the dirt. He was performing these duties over a period of two weeks, checking 15 poles per day. He advised that he was required to bend, forward reach and repetitively twist, and in doing so, he had suffered an aggravation of his lower back pain.

He advised that he reported the injury. Once again, he attended his GP. Once again, he was referred for physiotherapy treatment and remained at work, working his pre-injury hours, although was limited to performing inspections of intersections. He was not engaging in heavy or repetitive tasks. He was required to drive between locations and perform audits." [75]

"Mr Zonneveldt presents with a complex history of injury sustained during the course of his employment. At the time of the index accident, in 2016 and 2019, he was working for Johnson Controls, working as an Electrician, involved in the installation and maintenance of traffic light systems throughout metropolitan Melbourne. He was working on a full-time basis and confirmed the job demands were performed in all weather conditions.

He advised that he had sustained an aggravation of symptoms in October 2019, and during the course of his recovery, he had sustained a further injury in a motor vehicle accident on 13 January 2020. He confirmed that as a result of the recurrence of his injury, he has undergone operative intervention, namely an L5/S1 decompression and interbody fusion under the care of Mr Vellore and an L5/S1 revision fusion under the care of Mr Chan." [76]

1. Dr Slesenger was then asked questions as follows:

"2 Whether you consider our client's employment with Johnson Controls Pty Ltd was a cause of his lower back, left leg, scarring injuries and the sequelae.

I am satisfied that Mr Zonneveldt's employment at Johnson Controls is causal with regard to his lumbar spine impairment. I note the length of his employment. I note the manual handling and the postural demands, the unpredictable nature of these tasks, the repetitive nature of the tasks and I also note the development of his symptoms during the course of his employment." [77]

1. The VWA tendered a report from Mr Roy Carey, orthopaedic surgeon, dated 15 July 2020.[78] In his report, Mr Carey described how he had been asked to conduct an independent medical examination of the plaintiff to obtain his clinical opinion to assist the WorkCover agent to decide about the reasonable costs of spinal surgery.
2. About the car accident, Mr Carey took a history that "At the time, he sustained no obvious injury, and certainly was not aware of any problems in his lower back. By the next morning however he awoke with severe left-sided lumbosacral discomfort (only). There was no trouble to the right of the midline and he had no lower limb pain at that time". Mr Carey then recorded that "Over the next few days however he developed increasing left sciatica with a feeling of a "claw" on his left heel".[79]
3. About the plaintiff's past medical history, Mr Carey recorded the onset of low back symptoms in 2016 and the need for surgery, and that after surgery the plaintiff still had some bothersome back discomfort, for example when gardening at home.
4. Mr Carey then recorded that:

"In late 2019, due to a change in his work duty requirements, he was required to do a lot more digging. This produced a lot more discomfort in the lower back, and he saw a physiotherapist in November 2019 with back pain and sciatica. It was at that time he saw Mr Vellore, and the MRI and appointments of January 2020 were arranged.

He returned to work in February 2020 on reduced hours, but because of driving involved which increased the left sciatica, he went off work after a few weeks, returning to work only 13.7.2020, just doing computer work from home."[80]

"My opinion is that Mr Zonneveldt has sustained increased back pain and left sciatica as a result both of his work duties in late-2019, and particularly as a result of a motor accident 13.1.2020 which produced a recurrence of left sciatica."[81]

1. Mr Carey then was asked "What is/are the cause(s) of the worker's symptoms?" He answered that question as follows:

"The cause of Mr Zonneveldt's symptoms is recurrent disc herniation at L5/S1 on the left, along with a substantial discogenic/central/axial component, caused by an alteration in work duties in late 2019, and the sciatic component being caused as a result of the work accident 13.1.2020."[82]

1. As is clear from Mr Carey's report, he opined that the plaintiff had a recurrent disc herniation at L5/S1 on the left because of the work with Tyco in late 2019. But he also said that the car accident produced a recurrence of left sciatica.

1. Dr Graeme Doig is an orthopaedic surgeon who examined the plaintiff and provided three reports, all dated 6 July 2023, at the request of the relevant WorkCover agent. I shall set out those reports in the order contained in the VWA court book.
2. Dr Doig first examined the plaintiff on 14 June 2023 and subsequently provided the first of his reports dated 6 July 2023.[83]
3. Dr Doig obtained a history of the plaintiff's initial back injury with Tyco and the need for surgery in 2016. Dr Doig then recorded a history that:

"He suffered further injuries to the back down the years requiring two, further procedures which are the subject of separate claims."[84]

1. Dr Doig then proceeded to provide a diagnosis and prognosis. He said that, "The clinical presentation is consistent with the workplace incident and subsequent surgery",[85] before he proceeded to provide a whole person impairment assessment.
2. The first report from Dr Doig was provided in response to a request to provide an impairment assessment for a date of injury of 9 April 2016.
3. Dr Doig then provided a second report also dated 6 July 2023,[86] but directed towards the date of injury 15 November 2019. In the second report he repeated much of his earlier report, save that he said the diagnosis was a further soft tissue injury to the lower back with aggravation of degenerative discs on a background of a previous discectomy at the L5/S1 level.[87] Dr Doig then proceeded to provide an impairment assessment for the 'incident' with a nominated date of injury of 15 November 2019.[88]
4. Complicating the picture further, Dr Doig was also asked by the WorkCover agent to provide an independent impairment assessment for the date of injury/accident of 13 January 2020, which he also did by a third report dated 6 July 2023.[89]
5. For the third report, Dr Doig took a history as follows:

"Mr Zonneveldt informed me that he suffered a further injury to his lower back on 13.01.2020 when he was driving home from his place of employment. He appears to have been rear-ended by another vehicle on the East-Link Freeway.

At the time he was on light duties as a result of previous injuries to the back of April 2016 and November 2019 respectively. These injuries are the subject of separate claims for which I have provided impairment assessments.

Following the transport accident, by the following day his back had gone into spasm and he continued to experience deteriorating discomfort.

Medical imaging revealed a degenerative disc at the L5/S1 level, where there had been a previous discectomy performed in May 2016, and a less significant protrusion at L4/5."[90]

1. In respect to diagnosis, Dr Doig said about 13 January 2020 that:

"The diagnosis is an aggravation of a pre-existing degenerative lumbo-sacral spine, particularly at the L5/S1 level, on a background of prior discectomy surgery."[91]

1. He then provided an impairment assessment, before saying that:

"I had previously provided a similar impairment for the back injury of 09.04.2016 in a separate report. This should be taken into consideration when providing an overall impairment rating for the incident of 13.01.2020."[92]

1. The evidence from Dr Doig is complicated by the fact that he was asked to provide impairment assessments for three separate dates of injury, which he did in 3 reports, but with the proviso in his third report as discussed, that an impairment assessment for an earlier date of injury should be taken into account.
2. An impairment assessment is undertaken using prescribed impairment guides and is not the same as an assessment of impairment consequences. Dr Doig provided an impairment rating to 'incidents' in 2016, 2019, and 2020 which could be used as evidence of injury suffered on all three occasions. But he did not specifically ascribe impairment consequences for "serious injury" purposes to one or the other of the nominated dates of injury/incidents.

1. The TAC tendered two reports from Mr Armin Drnda, neurosurgeon.
2. Mr Drnda reported for the first time on 12 March 2024 after a medical assessment of the plaintiff. [93]
3. Mr Drnda obtained a history as follows:

"Mr Zonneveldt was injured in a motor vehicle accident on 13 January 2020. He was going home from work in his work van. On the exit from the freeway, there was a traffic jam, and he slowed down and stopped his vehicle. He also checked his rear-view mirrors and noticed that there was a car coming behind, trying to brake and swerving. He braced himself expecting the impact, and his car was hit. Immediately, he did not feel any pain. He self­extricated from his vehicle and exchanged details with the driver of the car that hit him. He went home and after a couple of hours, he started experiencing increasing low back pain, which had already been present for a few weeks before.

The next morning Mr Zonneveldt awoke with a very stiff and painful lower back, and pain in his left foot. The pain was on the medial aspect of his ankle and the medial aspect of his big toe. The next day he underwent an MRI scan, which was pre-booked by Mr Yagnesh Vellore, neurosurgeon, to whom he was referred on 30 December 2019 for aggravation of the low back pain.

On 15 January 2020, Mr Zonneveldt attended a GP, who recorded aggravation of low back pain due to a low-speed car accident.

Mr Zonneveldt was first seen by Mr Vellore on 17 January 2020, and the initial suggestion was to undergo physiotherapy. Attending physiotherapy was not helpful, and Mr Zonneveldt had discussions with Mr Vellore in April 2020 about potential surgical treatment of the small recurrent disc that was demonstrated on MRI."[94]

1. In respect to relevant medical history, Mr Drnda recorded as follows:

"Significant past history with regard to lower back is that Mr Zonneveldt had episodes of low back pain, for which he attended a physiotherapist between September 2012 and September 2014. In 2016, he developed low back pain while breaking concrete with a crossbar at work. This was accepted as a work-related injury, and he was on WorkCover. He ended up having an operation for mainly low back pain and pain around his left medial malleolus on 31 May 2016. He had a microdiscectomy performed by Mr Yagnesh Vellore. Mr Zonneveldt said that after the surgery he was doing well. He gradually returned to work but was restricted for significant periods for heavy lifting. It was documented by his GP that the limit of lifting was raised to 15kg on 12 August 2016. He was further followed by his GP until 12 October 2016, and there were no further attendances regarding this episode of lower back and leg pain and surgery.

Mr Zonneveldt still experienced occasional back pain at work and was always assisted with the heavy lifting. He attended his GP on 3 December 2019 with aggravation of his lower back pain after digging a lot the week before at work. He had minor improvement with the GP­instigated treatment. However, as he was not getting significantly better, on 30 December 2019, he was referred to Mr Vellore, who then arranged the previously mentioned MRI of the lumbosacral spine, which happened to be performed one day after the transport accident."[95]

1. Mr Drnda then reviewed relevant radiological investigations before conducting an impairment assessment.
2. Then, in respect to "serious injury", Mr Drnda was asked questions, which he answered as follows:

"Your opinion in relation to a diagnosis of any injuries the client sustained and the relationship of those injuries to the transport accident.

Mr Zonneveldt developed aggravation of his pre-existing lumbar spine injury on the background of disc protrusion and microdiscectomy from 2016. He had minor recurrent disc prolapse at L5/S1, for which it was chosen to undergo surgical treatment. His first surgery was unsuccessful. Mr Zonneveldt developed pseudoarthrosis and required re­operation and after the re-operation, additionally he was found to have left S1 radiculopathy on today's assessment.

Your opinion as to whether or not there was any pre-existing or unrelated conditions which may wholly or partly account for the client's current symptoms and if so, please describe the relationship between any such pre­existing/unrelated conditions and the client's current symptoms.

This was answered already in the section for Impairment.

Mr Zonneveldt's current symptoms are related to his work-related condition treated with two surgical procedures. In my opinion, the transport accident was a minor contribution to the pre-existing condition that had already flared up just before the accident."[96]

1. Mr Drnda was then asked additional questions, which he answered as follows:

"How much of the client's current low back condition and requirement for surgery in August 2020 is related to the subject accident in comparison to his pre existing condition of the lumbar spine.

In my opinion, Mr Zonneveldt's current low back condition and requirement for surgery in August 2020 was almost entirely related to his pre-existing condition of the lumbar spine, which was worsening just before the transport accident. He was already referred to his surgeon and his MRI was scheduled. It happened that he had transport accident a day before his scheduled MRI.

Considering that the client had already been referred to Dr Yagnesh Vellore prior to the accident, did the subject accident result in the requirement for the fusion surgery in August 2020?

As mentioned in the answer to the previous question, Mr Zonneveldt's condition was almost entirely related to his pre-existing condition, and he would have had the same treatment, even if the transport accident did not happen.

If not for the subject accident, would the client would have likely required the fusion surgery in August 2020?

Are you able to predict whether or not the subject accident brought forward the client's requirement for the fusion surgery in August 2020?

The subject accident is very unlikely to have brought forward the requirement for the fusion surgery in August 2020."[97]

1. Next, Mr Drnda provided a supplementary report dated 13 January 2025 in which he was provided with various documents and asked to answer questions. The relevant questions and his answers are set out as follows:

"1. Your diagnosis of any physical injuries attributable to the Workcover accident on 9 April 2016.

Mr Zonneveldt suffered disc protrusion at the L5/S1 as a consequence of his work. He underwent questionable surgery in the form of L5/S1 discectomy, as on the imaging, there was no evidence of compression. He was treated with physiotherapy until the end of May 2017 and eventually improved to return to work.

1. Your diagnosis of any physical injuries attributable to the Workcover accident on 15 November 2019.

Mr Zonneveldt, in his claim form, stated that he was digging around poles. His work circumstances were described as "doing a fair amount of digging over a couple of weeks and had a sore lower back at the end of the week, which did not get better after the weekend". The circumstances meant that strenuous activities, such as digging - which involved repetitive bending, twisting, and lifting a shovel - placed significant stress on Mr Zonneveldt's previously damaged L5/S1 disc. It is important to understand that undergoing a discectomy does not restore the disc to its normal state. After the procedure, the disc does not heal completely but instead develops scar tissue of varying densities. The operated disc is even more susceptible to injury, so engaging in digging for several weeks likely resulted in additional strain and may have caused a recurrent disc prolapse.

Mr Zonneveldt was scheduled for a scan the day after his accident. He did undergo the scan, which confirmed residual or recurrent disc prolapse. In my opinion, this condition is entirely attributable to the activities he performed around November 15, 2019.

1. Your diagnosis of any physical injuries attributable to the Transport accident on 13 January 2020.

In my opinion, the contribution of this accident was insignificant. Mr Zonneveldt was aware of the impending impact, and he braced himself. Although there was impact, it was at a relatively low speed. Mr Zonneveldt did not have any symptoms immediately after the accident. The scan that he had the day after was already scheduled for his injury sustained at work in November 2019. In conclusion, I do not attribute any physical injuries to the lumbar spine to the transport accident on 13 January 2020.

1. What is the prognosis for any injuries attributable to the Workcover accident on 9 April 2016?

The prognosis was that Mr Zonneveldt was always vulnerable, and returning to any work that required repetitive bending, twisting, lifting and carrying heavy objects, at some point, was likely to cause recurrent disc prolapse. As stated before, a microdiscectomy is not the type of surgery that would make the disc heal back to normal and be as strong as before.

1. What is the prognosis for any injuries attributable to the Workcover accident on 15 November 2019?

The prognosis remains largely unchanged, indicating that Mr Zonneveldt continues to be vulnerable. The recurrence of the disc prolapse could have been treated with simple decompression, but fusion was ultimately chosen. It is important to note that there is no cure for degenerative disc disease, and most fusion surgeries do not offer a complete solution. Additionally, the L4/5 disc was already degenerated, and it is likely that, following the fusion, there will be ongoing degeneration of that disc in the future as well.

1. What is the prognosis for any injuries attributable to the Transport accident on 13 January 2020?

In my opinion, there was no injury to the L5/S1 disc or any other discs as a result of the transport accident on 13 January 2020 for the reasons outlined above. At the time of impact, Mr Zonneveldt braced himself, and while sitting with seatbelts fastened, there would not have been significant movement in the lower back since it was close to the centre of motion. As a result, there would not have been substantial mechanical strain on the lumbar spine.

1. Are there any pre-existing or non-transport accident-related factors or conditions influencing the current symptoms?

In my opinion, the current symptoms of Mr Zonneveldt are entirely related to his work-related conditions acquired in 2016 and 2019.

1. If there was an aggravation of any injury as a result of the Transport accident, has any such aggravation now resolved to the pre-accident state? If so, please advise when it resolved to pre-accident state. If not, please advise if and when you expect this will resolve to pre-accident state.

In my opinion, there was no aggravation of the pre-existing condition. If there had been, Mr Zonneveldt would have been significantly worse immediately following the accident, and he actually did not exhibit any new symptoms."[98]

1. A consideration of the whole of the evidence leads me to the following conclusions.
2. First, the plaintiff is a credible and stoic witness.
3. Second, in 2016 he developed back and left leg pain with Tyco, that required referral to a neurosurgeon, Mr Vellore, and lumbar L5/S1 micro-discectomy surgery on 31 May 2016.
4. Third, after recovering from the surgery, the plaintiff resumed his pre-injury duties with Tyco, but with back pain at times, which required him to careful when undertaking physical activity to avoid flare ups of back pain. In addition to back pain, he also had intermittent left lower limb symptoms.
5. The back pain became worse in about October/November 2019, when undertaking the Tyco work. The symptoms at that time were more than just a flare up, were ongoing and required treatment with his GP and physiotherapist, as well as modified duties and to cease overtime. The back pain was made worse with activity such as prolonged sitting, standing or driving a car for extended periods.
6. By late 2019 and before the car accident, the plaintiff was sufficiently concerned about the return of the type of symptoms that he experienced before surgery in 2016. In that setting, he was again referred to Mr Vellore and for an MRI scan.
7. Fourth, in addition to back pain after the 2016 surgery, before the car accident the plaintiff also had intermittent left lower limb symptoms.
8. The description of left lower limb symptoms or left leg symptoms were used a lot in the evidence and submissions in this proceeding and were often used interchangeably. But it is important to look closely at the evidence to determine what symptoms the plaintiff had in his left lower limb and when those symptoms arose.
9. The evidence from the treating practitioners reveals that back pain was the most prominent symptom that the plaintiff had between 2016 and late 2019, up until the car accident. That conclusion is supported by the evidence in Dr Gankin's referral letter to Mr Vellore of 30 December 2019, which asked Mr Vellore to provide an opinion about the management of the plaintiff's back pain.
10. Regarding left lower limb symptoms, I accept the plaintiff's evidence, in conjunction with the evidence from the treaters, that the symptoms in the left leg before the car accident were confined to the lower part of the left leg or foot and were not a clear or pronounced sciatic type pain.
11. As already described, the issue of the return of left leg symptoms and whether that was before or after the car accident, is one of the key factual disputes in this proceeding. The fact that the treating GP and physiotherapist did not make an explicit clinical note of left lower limb symptoms in the several weeks before the car accident does not mean that I should reject the plaintiff's evidence of intermittent left lower limb symptoms, where I consider him to be both a stoic and a credible witness. But equally, the lack of any clear note of left sciatic symptoms fortifies me in my conclusion the left sciatica was not a significant issue for the plaintiff before the car accident.
12. In my opinion, a consideration of the whole of the evidence, supports a conclusion that between 2016 and late 2019, when the plaintiff had a flare up of back pain it was often accompanied by symptoms in his left foot, toe or heel, or into the left shin, for example as recorded by Mr Mcintyre. As the plaintiff said in his evidence, that type of left lower limb pain became more prominent as the back pain itself got worse.
13. Fifth, before he could attend Mr Vellore or have the MRI scan, the plaintiff had the car accident. The car accident did not immediately cause an increase in symptoms, however the next day the plaintiff had an increase in low back pain and the development of more pronounced left leg symptoms. I consider that temporal connection of increased symptoms to be sufficient to relate it to the car accident.
14. By the time he attended Mr Vellore on 17 January 2020, the plaintiff had a radiologically established diagnosis of a recurrent left sided L5-S1 disc prolapse. Mr Vellore said that at that attendance the plaintiff had mild back pain and left leg symptoms. But Mr Vellore's description of mild pain should be seen in the context of the plaintiff as a man not prone to complaint or exaggeration. Mr Vellore's note of left leg symptoms also suggests something more than pain in the toe, heel or shin. In other words, left sciatica was then a feature in the plaintiff's presentation.
15. At an attendance with Dr Gankin on 28 January 2020[99] it was noted that the plaintiff had stable low back pain, radiating to the left leg and that the plaintiff was going to contact his surgeon. That appears to be the first clear note by a treater of radiating left leg pain. This fortifies me in my conclusion that left sciatica came on after the car accident and was a feature when the plaintiff was seen by Mr Vellore on 17 January 2020.
16. The plaintiff then attempted a trial of light duties in approximately March 2020. When he returned to work, he had an increase in both back pain and left sciatica. After a teleconference held on 29 April 2020 Mr Vellore reported that the plaintiff had noticed a recurrence of symptoms mainly in the left leg in the S1 distribution. Left L5-S1 fusion surgery was then on the table as the treatment required.
17. As part of the request for surgery, the plaintiff was assessed by Mr Carey on 15 July 2020. Mr Carey recorded that the plaintiff was then confined to office (computer) work from home. Mr Carey said the plaintiff had increased low back and left leg pain because of both his work with Tyco and the car accident, which I accept broadly as an accurate statement based on my assessment of the evidence.
18. Mr Carey's evidence supports a conclusion that the left sciatica was, to use his words, particularly because of the car accident. But equally, the evidence from Dr Gankin and Mr McIntyre, as well as from the plaintiff, supports a conclusion that left lower limb symptoms were present before the car accident. On this point, I do not accept the VWA's submission that the left leg symptoms (of any type) only developed after the car accident.
19. On my assessment of the evidence, the main change in symptoms after the car accident was that the left lower limb symptoms that had been intermittently present beforehand, became more a prominent sciatic type pain, associated with an increase in the level of back pain.
20. The plaintiff's evidence, together with the evidence from Dr Gankin, Mr Vellore and Mr McIntyre supports the conclusions I have set out so far and is generally consistent with the opinion of Mr Carey.
21. In addition, the conclusion so far is also supported by the opinions from Dr Akil.
22. Therefore, while I acknowledge the contrary opinions, such as Mr Chehata who described the car accident as innocuous, or Mr Drnda who said the car accident was only a minor contribution, bearing in mind I am conducting an assessment for a gateway provision, I do not accept those opinions on causation. Therefore, I do not accept the submission on behalf of the TAC that the left leg symptoms and need for surgery did not relate in any or any meaningful way to the car accident.
23. By October 2020 the plaintiff was sufficiently symptomatic that Mr Vellore sought WorkCover funding for a lumbar fusion procedure. It cannot be in doubt that the plaintiff ultimately required repeat lumbar fusion surgery from which he has had a poor result. He has been left in a bad way and unable to work. Both the Tyco work and the car accident have had a role to play in the position he now finds himself to be in.

Application of the facts to the gateway provisions

1. In the context of the factual conclusions I have expressed, next is the application of those conclusions to the applicable legal principles for these gateway proceedings, commencing with the WIRC Act proceeding.

1. The plaintiff has had ongoing back pain since the initial onset of significant back and left leg symptoms with Tyco in approximately 2016. He required a left L5-S1 laminotomy procedure on 31 May 2016 and was not cured by Mr Vellore by that surgery.
2. The plaintiff was sufficiently improved after the 2016 surgery so that he could return to his pre-injury duties with Tyco. But because he is stoic he tolerated back and occasional left leg symptoms. He needed to be careful with physical activity so to avoid a flare up of back or left leg symptoms. He sought occasional GP and physiotherapy attendance and infrequent use of prescription pain killers.
3. Pausing here, that alone is almost enough in my view for a conclusion of a "very considerable' pain and suffering consequence. But the story does not stop here.
4. The back and left leg symptoms then progressed so that by late 2019 this stoic plaintiff, with a previously operated on lumbar spine, had a significant return of back symptoms and some associated left lower limb symptoms. He returned to his GP and was referred again to a neurosurgeon. By then, I accept that he was incapacitated for his pre-injury duties and as set out in his first affidavit, had moved on to light duties and was worried that he was heading back to the state he was in before surgery in 2016.
5. While there is a lot of conflict in the medical evidence, one thing that is not really in conflict is what I have set out to this stage. In my opinion, the objective evidence is that the back symptoms, the need for modified duties and the inability to work overtime, before the car accident was unlikely to have been a temporary or transient scenario.
6. Therefore, even if the need for the subsequent spinal fusion procedure was caused or contributed to because of the car accident, I conclude that because of the work injury with Tyco, before the car accident the plaintiff had a compromised back and was unfit for his pre-injury duties. As he said in his oral evidence, by then he was worried that the return of symptoms was like what he had experienced before the initial back surgery in May 2016. The return of symptoms and incapacity for unrestricted work as an electrician, undoubtedly reduced his future employment prospects. As he said in his first affidavit, that caused him to be very concerned for his future employment prospects.[100]
7. In addition, the condition of the plaintiff's back before the car accident, is likely to have interfered with his described hobbies of scuba diving and camping, as well as spending time with his children.[101]
8. The incapacity for manual work, including as an electrician, his concern about his future employment prospects, the symptoms that he then had, the need for conservative treatment and a referral to a neurosurgeon, mean that even without the car accident, the plaintiff had "very considerable" pain and suffering impairment consequences.
9. In other words, regardless of the cause of the subsequent spinal fusion surgery, because of the injury with Tyco, before the car accident, the plaintiff had a "serious injury" to his back from the pain and suffering consequences.
10. I am fortified in this conclusion because the car accident while involving some force, was not a major accident. The van was drivable, and the plaintiff did not need immediate medical attention. I accept that the escalation in symptoms the following day was causally related to the car accident, but that also demonstrates a man with a very vulnerable back because of the Tyco injury and one that was likely to require more treatment and cause ongoing impairment consequences.
11. Therefore, the plaintiff has "serious injury" to his back because of the work with Tyco and leave is granted to commence a common law proceeding for pain and suffering damages in the WIRC Act proceeding.

1. Next, to establish an entitlement to commence a proceeding for loss of earnings in the WIRC Act proceeding, the plaintiff must satisfy the statutory requirements contained in s325 of the WIRC Act, being both the 'narrative test' and the 'statutory formula'.
2. First, the plaintiff must establish that the loss of earning capacity consequences from the compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being "more than significant or marked", and at least "very considerable", as per s325(2)(b) and (c) of the Act ("the narrative test").
3. Second, he must then satisfy the "statutory formula" as contained in ss325(2)(e)(i) and (f) of the Act, namely, whether he has a loss of earning capacity of 40 per cent of gross earnings, measured as set out in the three years before or after injury as most fairly reflects his earning capacity had the injury not occurred.
4. Third, he must continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more as per s325(2)(e)(ii).
5. A failure by the plaintiff to establish any one of these three steps would mean that he fails to establish an entitlement to commence a proceeding for pecuniary loss damages.

1. In the setting of my expressed conclusions about pain and suffering, it could be enough to simply say that before the car accident the plaintiff had a light work back, was unfit for the type of unrestricted manual work he did for Tyco, was on a path back to see a neurosurgeon and possibly to more spine surgery, which is enough to satisfy the narrative test.
2. But for completeness, before the car accident, the plaintiff was sufficiently symptomatic with back and left lower limb pain that a return to pre-injury duties and the sort of heavy work that he had done for Tyco was unrealistic for him.
3. Overall, the plaintiff's back injury caused by the work with Tyco was such that even for a stoic, I consider that he was permanently unfit for unrestricted work as an electrician, or for the type of manual work he had done in the past, including the work with Tyco.
4. I consider that the inability to continue unrestricted in his trade or in the type of heavy work that he did with Tyco is a "very considerable" consequence, perhaps even more so where the plaintiff is still a relatively young man.
5. Therefore, I conclude that the plaintiff has established a "very considerable" pecuniary loss consequence, regardless of the car accident.

1. Next, having established a "very considerable" loss of earnings, the plaintiff must also satisfy the statutory formula in s325(2)(e), (f), and (g) of the WIRC Act ("the statutory formula").

Assessment of before injury earnings for the statutory formula

1. The plaintiff's court book contained a taxation summary, that was ultimately tendered with the consent of the defendants, which disclosed that for the work with Tyco the plaintiff earned $142,451 in the financial year ended 30 June 2019.[102]
2. Applying the formula in the three years before and after the Tyco injury, I start with the "before injury" figure of $142,451 gross per annum, which does not make any allowance for incremental increases, but also reflects the paucity of submissions made on this point. Sixty percent of that figure is $85,470.60 gross per annum.
3. Next, the assessment in the three-year window after injury is potentially complicated by the supervening event of the car accident.
4. The issue of a supervening event in a consideration of the application of the "statutory formula" in a "serious injury" application was considered by Justice J Forrest in Acir v Frosster Pty Ltd ("Acir").[103] Justice Forrest concluded that the Court should not, for the purpose of fixing a representative figure for "earning capacity" in a gateway proceeding, take into account the supervening event. Applying the reasoning of Justice Forrest, I shall take the same approach.
5. Therefore, to assess "before injury" earnings, based on the limited submissions and excluding the supervening event, I return to the figure of $142,451.

Assessment of after injury earnings for the statutory formula

1. Therefore, if "after injury" the plaintiff can earn more than $85,47.60 in accordance with the statutory formula, then he will fail to establish an entitlement to commence a proceeding against Tyco for loss of earnings.
2. In the three years after injury, and in fact after having back surgery, the plaintiff obtained light part-time work doing electrical testing and tagging. There is not a lot of useful evidence about the amount that the plaintiff earned in that work.
3. In his affidavit the plaintiff described his attempts at doing the testing and tagging work, peaking at 24 hours per week sometime after December 2022 and prior to July 2023.[104] The taxation summary records his actual earnings in that work, but not the rate of pay. The most he earned in that work was $20,211 in the financial year ended 30 June 2022, with a similar amount the following financial year.
4. The evidence establishes that before the car accident the plaintiff had moved from unrestricted duties to modified duties, was taking time off work because of his symptoms and had ceased overtime. His back pain was flared up by sitting, standing or driving for too long. By late 2019, he was again on a path back to see a neurosurgeon.
5. Before the car accident, for a man with a return of symptoms in late 2019 after a previous back operation in 2016, he was clearly on a slippery path such that I consider his days as a manual worker were doomed. That slippery path was even more so after the car accident, such that by mid-2020, he was on light, computer-based duties working from home. He never returned to the pre-injury work and failed an attempt at light test and tag duties after having the spinal fusion procedures.
6. As was said by the Court of Appeal in Yirga-Denbu v Victorian Workcover Authority_[105]_ in the end, it is a matter of judgment when conducting an analysis for the purposes of a gateway provision as to what conclusions are drawn about incapacity for work.
7. Obviously, where the left sciatica became a pronounced problem because of the car accident, that cannot be swatted away as innocuous or irrelevant. But equally, there is clear evidence that ongoing manual work was going to be problematic for the plaintiff before the car accident.
8. The plaintiff's working life has been spent in manual work, including manual work after he obtained trade qualification for work as an electrician. On an assessment of the whole of the evidence, the plaintiff was a man who was suited only for manual work.
9. But because of the injury suffered with Tyco, before the car accident, the plaintiff became incapacitated for unrestricted work in his trade, or for manual work. He had sufficient back pain and left lower limb symptoms such that he was on a path back to a neurosurgeon. That path may have led to further surgical intervention, or it may have not, but it likely led to ongoing treatment and ongoing restrictions for "suitable employment" even if the car accident had not occurred. The plaintiff's ability to do the relatively well paid, heavy work with Tyco were already over.
10. Therefore, had the car accident never happened, the Tyco related back injury was such that on my assessment of the evidence, the plaintiff would have only been fit for the type of modified, part time work, that he attempted in testing and tagging, which would not have seen him earn more than 60 per centum of his "before injury" earnings. Allowing him the $20,211 gross he earned in the 2022 financial year is obviously much less than the 60% figure of $85,470.60 gross per annum.
11. Obviously, this is an artificial exercise for the purposes of a gateway provision, but having gone through the exercise required in a consideration of the evidence, "after injury" the plaintiff has established the required 40 per centum loss when assessed in accordance with the statutory formula.

Does the plaintiff have a permanent loss of earning capacity

1. The remaining issue to resolve is whether "after injury" the plaintiff has a loss of earning capacity that will be productive of an actual loss of forty per centum or more.
2. For this issue, this is not a proceeding in which there is evidence to conclude that "after injury" (being the Tyco injury) the plaintiff would have had the capacity for manual work, or the Tyco work, or for further improvement in his medical condition and impairment for work.
3. In fact, the evidence is the opposite, namely that before the car accident he had a return of back and left lower limb symptoms that were heading ominously towards the situation he had been in back in 2016. In that setting, I consider that he was restricted for manual work and that would have continued regardless of the car accident.
4. For a man who had only ever done manual work and mostly heavy manual work, with a then compromised back, considering his level of symptoms, his age, his work experience and the like, there is no evidence to suggest that he had a further or greater capacity for 'suitable employment".
5. In that regard, I note it was not suggested by either defendant that had the car accident not occurred, the plaintiff had a capacity to re-train or to engage in sedentary work, which I think fairly reflects that before injury he was a quintessential blue collar, tradesman or manual worker.
6. The loss of his career because of the Tyco injury in isolation and at best an "after injury' capacity for some type of light work, means that the plaintiff had an ongoing loss of earning capacity before the car accident (assessed in the traditional common law method[106]) that was and continues to be productive of an actual financial loss of 40% or more, for a gateway proceeding. In conducting such an artificial assessment, I consider that something of a holistic approach can be taken.

1. For the reasons expressed, the plaintiff is granted the leave of the court to commence a common law proceeding against Tyco for pain and suffering and loss of earnings damages.

1. Before the car accident, the plaintiff had a persisting back injury. As I have set out, he was unable to do his pre-injury Tyco work, had increased back symptoms from sitting and standing, was back to roughly to the level of back pain he had before surgery in 2016, was once again off to the neurosurgeon, on a path of ongoing treatment and ongoing impairment for work, domestic and social activity.
2. But, even for a gateway provision and keeping in mind the requirements of Petkovski for an aggravation injury, in the TAC Act proceeding the defendant must still take the plaintiff as they find him.
3. In that regard, the evidence establishes that after the car accident the previously intermittent left lower limb symptoms progressed to pronounced left sciatica, within a day or two of the car accident, associated with some increase in back pain.
4. This temporal connection of increased left sciatica following the car accident, analysed as discussed in Findlay, but in consideration of the factual conclusions already expressed, points to the conclusion that the car accident caused an aggravation of the disc injury at L5/S1 and an aggravation or development of the left sciatica, as opined by Mr Carey.
5. I do not accept that the aggravation of his left sciatica was only 'minor'. On 17 January 2020 Mr Vellore considered the symptoms sufficiently bad enough for surgery to be an option. There is no evidentiary basis to conclude that those symptoms then present at some point returned to a level, so that the car accident injury is no longer implicated.
6. To be clear, for a gateway provision, I also do not accept Mr Drnda's opinion on causation. I do not accept that the car accident did not produce any lasting or additional impairment, for reasons already expressed.
7. As was confirmed by the Court of Appeal in R J Gilbertsons Pty Ltd v Skorsis ("Skorsis")[107] it is possible to suffer consecutive "serious injuries" to the same body function. In my opinion, that is what has happened to this plaintiff.
8. Having said that, I am mindful that the second or subsequent injury must cause sufficient additional impairment to meet the aggravation test in Petkovski.
9. This is obviously a somewhat artificial exercise and highlights yet again that this is a gateway provision. I am not conducting an exercise in apportionment, or an assessment of vicissitudes. I am not assessing contribution between tortfeasors.
10. In my assessment, the car accident was a cause of the pronounced left sciatica, such that by April 2020 lumbar fusion surgery was recommended by Mr Vellore and such that by mid-2020 the plaintiff went off work altogether, before coming to the first lumbar fusion surgery on 1 August 2020.
11. The car accident was a cause of the need for fusion surgery. While it may not have been the sole or only cause of that surgery, all the same it was a cause of the need for surgery.
12. For a gateway proceeding, consecutive injuries to the same body function can each contribute to the need for spinal surgery and the impairment consequences that follow. It is not a situation of the evidentiary problem of disentangling, because the evidence is that both the Tyco injury and the car accident have caused injury and impairment consequences to the plaintiff's spine. But it was the car accident that was the cause of the problematic sciatica, which in turn was a cause of the need for spinal surgery.
13. The increase in back pain and left sciatica symptoms, sufficient to put the plaintiff off work and contribute to the need for major spinal surgery, now on two occasions, with a poor outcome, is a sufficient additional impairment consequence from the car accident, to meet the "very considerable" test.
14. At the risk of repetition, on my assessment of the evidence, the plaintiff had chronic low back pain, some left lower limb symptoms and a restriction for work before the car accident. This stoic man had again been referred to a neurosurgeon and was on a path towards more treatment and incapacity for work.'
15. But that should not detract from the fact that the car accident caused significant, pronounced left sciatic pain and a rapid progression towards lumbar fusion surgery. Allowing for the fact that it was an aggravation injury, the left sciatic pain and contribution to major spinal surgery is in my opinion a "very considerable" impairment consequence.
16. Therefore, overall, the plaintiff has discharged his evidentiary onus to establish that the car accident caused an aggravation to his previously injured L5/S1 disc, with the onset of the left sciatica, and contributing to the need for lumbar fusion surgery, from which he has had a very poor outcome.
17. I am satisfied that the car accident in isolation, has caused sufficient additional impairment so that the aggravation injury to the spine is a "serious injury". This is a situation like that described in Skorsis, where the plaintiff has suffered consecutive "serious injuries" to the same body function, namely the lumbar spine.
18. Therefore, in the TAC Act proceeding, leave is granted to the plaintiff to commence a common law proceeding for damages for the car accident that occurred on 13 January 2020.

1. In conclusion, it has not been easy to resolve the issues in dispute, in part because of the conflicting opinions about causation in the medical evidence, the artificiality of the task for a gateway proceeding, with two defendants effectively blaming each other, and in part because the plaintiff presented something of a scrambled egg.
2. But, as I have concluded, where two potential tortfeasors have each caused the plaintiff to suffer a "serious injury" to his spine, as assessed for a gateway provision, the plaintiff is entitled to leave to commence two common law proceedings. In my assessment, the real issues in dispute are ones to ultimately be sorted out at a common law trial, or trials.
3. In any event, broadly, by way of summary, I accept the plaintiff's submission that the evidence, from the treaters but also Dr Awad and Mr Carey,[108] supports a conclusion of consecutive "serious" injuries to his spine.
4. I accept the plaintiff's submission that there is an artificiality to it, but overall, I conclude that there was a back injury with Tyco and some left leg symptoms, that was serious for both pecuniary and non-pecuniary loss damages. That was followed by an aggravation injury to the spine in the car accident that caused the pronounced left sciatica and which, of itself, is also serious.[109]
5. I shall hear from the parties as to consequential orders, as well as orders for costs.

[1] Transcript ("T") 95, Line/s ("L") 4-6

[7] Mr Vellore's reference to "cured" needs to be seen in this context

[12] Taylor v Transport Accident Commission [2022] VSCA 269

[13] [1994] VicRp 32; [1994] 1 VR 436

[14] [2025] VSCA 18

[15] [2012] VSCA 60

[16] [2017] VSCA 377

[17] [2025] VSCA 126 ("Findlay")

[47] Popal v Transport Accident Commission [2023] VSCA 222 at [87]

[103] [2009] VSC 454 at paras 170-178

[105] [2018] VSCA 35 at [89]

[106] State of New South Wales v Moss [2000] NSWCA 133; (2002) 54 NSWLR 536

[107] (2002) 12 VR 386