IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List

Case No. CI-22-02192

ANGELO MIZZI	Plaintiff	
		
v		
		
TRANSPORT ACCIDENT COMMISSION	Defendant	

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JUDGE:	HER HONOUR JUDGE CLAYTON	
WHERE HELD:	Melbourne	
DATE OF HEARING:	12 February 2024 and 12 August 2024	
DATE OF JUDGMENT:	5 September 2024 	
CASE MAY BE CITED AS:	Mizzi v Transport Accident Commission	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1353		

REASONS FOR JUDGMENT
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Subject:	TRANSPORT ACCIDENT 
Catchwords: 	Serious injury – aggravation of pre-existing back injury – capacity for work – reliability of plaintiff’s history - surveillance footage
Legislation Cited:	Transport Accident Act 1986, s93
Cases Cited:	Demmler v Transport Accident Commission [2018] VSCA 284
	lliadis v Transport Accident Commission [2017] VCC 1354
	Ilic v Transport Accident Commission [2014] VCC 347
	Petrovic v Victorian WorkCover Authority [2018] VSCA 243
	Smith v Transport Accident Commission [2019] VCC 269
	State of Victoria v Glover [1998] VSCA 93
Judgment:	Leave granted for the plaintiff to bring common law proceedings for pain and suffering and pecuniary loss.  
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A Ingram KC with
Mr A Theodore	Karlos Lawyers	
			
For the Defendant	Ms A Wood with
Ms J Ryan (12 February)
	Russell Kennedy Lawyers	
	Mr D Masel SC with
Ms J Ryan (12 August)		

HER HONOUR:

1	Mr Mizzi makes application for leave to bring common law proceedings pursuant to s93 of the Transport Accident Act 1986.
2	Mr Mizzi was in a car accident on 23 July 2016 when his ute was rear-ended by a car.
3	He claims that, as a result of the car accident, he has suffered a serious injury that has caused pain and suffering consequences and pecuniary loss that meet the test of “at least very considerable”.
4	The injury he claims is an aggravation of a pre-existing injury to his spine.
5	Mr Mizzi has run his own business as a handyman for many years.  He claims that, although he had a pre-existing spinal injury, the car accident has made it much worse and has impacted on his ability to work.
6	He has other significant medical conditions, including liver cancer and diabetes.
7	The issues in this case are:
(a)	Mr Mizzi’s credibility and reliability;
(b)	whether Mr Mizzi has sustained a pecuniary loss;
(c)	whether the consequences Mr Mizzi claims can be attributed to the car accident.
For the reasons that follow, I am satisfied that Mr Mizzi has suffered a serious injury and he has leave to bring common law proceedings for pain and suffering and pecuniary loss.  
Background to accident
8	Mr Mizzi says he was rear-ended by another car on the South Gippsland Highway on 23 July 2016.  He says “[t]here were a lot of damage” and that police and ambulance attended, however he declined the ambulance because he had work commitments.  He went to work to pack up and then drove himself to the Dandenong Hospital.
9	At the hospital he had various scans and was found to have non-displaced fractures of his fifth, sixth and seventh left ribs.  He was discharged home on 26 July 2016.
10	He lodged a Transport Accident Commission (“TAC”) claim on 1 August 2016, noting his injuries as fracture of three ribs, numb above the right knee and backache.
11	In this application Mr Mizzi claims only in relation to the injury to his spine.
Prior medical history
12	Mr Mizzi has a history of back pain.  The medical records show that, at least since January 2012, Mr Mizzi has attended his general practitioner with complaints of lower back pain. 
13	He had an MRI scan on 25 January 2012, which showed slight spondylosis at L1-2 and L2-3.  His pain on 27 January 2012 was noted by his general practitioner to be so severe he could not work.  He was prescribed Mobic at that time.
14	In November 2014, Mr Mizzi again attended a chiropractor, Dr Damien Sampimon,  with neck stiffness and lower back pain.  It appears he had four sessions with his chiropractor between November and December 2014.
15	In August 2015, Mr Mizzi attended his general practitioner with lower back pain and left sciatica.  Dr Alan Lim noted that Mr Mizzi was unable to walk properly and required “one more week” of rest.  He was given a certificate and a prescription for Celebrex and Panadeine Forte. 
16	On 15 October 2015, Mr Mizzi again attended his general practitioner who noted “chronic recurrent low back pain radiating to the left pelvic [region] but not to the legs”.  His forward and lateral flexion and backward extension were noted to be “intact”.  An x-ray of 16 October 2015 showed no abnormality apart from minor spondylosis.
17	Evidently Mr Mizzi’s pain persisted and Dr Lim arranged a CT scan on 22 October 2015.
18	On 28 November 2015, Dr Rajeswary Manikam noted that Mr Mizzi was seeing a chiropractor for back pain and that it had been getting worse “since Thursday”, when he had been doing concreting work.  He was advised to do back exercises, use a hot pack and was given a sample of Celebrex.
19	On 11 December 2015, Dr Radhika Ramkrishna noted Mr Mizzi had longstanding backache with no sciatica.  He was prescribed Celebrex and encouraged to have the CT scan previously arranged by Dr Lim. That CT scan, performed on 14 December 2015, noted multilevel disc and facet degenerative changes and mild L3-4 foraminal stenosis.
20	On 16 December 2015, Dr Lim noted that Mr Mizzi’s back pain had worsened.  Two days later it had improved, but by 21 December 2015, Dr Lim had prescribed Panadeine Forte, although there is no record in the notes of the indication for this prescription.
21	On 13 January 2016, Dr Lim noted he had a discussion with Mr Mizzi about the CT scan results and recorded that Mr Mizzi said the pain and left sciatica were intermittent.
22	On 16 June 2016, a month or so before the car accident, Dr Lim arranged imaging of Mr Mizzi’s spine.  The MRI scan on 20 June 2016 showed similar results to those previously seen – mild disc bulges at L3-4 and L4-5, but no central canal stenosis and no nerve root compression.  On 23 June 2016 Dr Lim recommended physiotherapy and Chinese massage for soft-tissue injury. 
23	In his report dated 6 September 2017, Dr Lim noted that Mr Mizzi had “transitory” lower back pain towards the end of 2015 with no history of injury, but he had not complained of, nor required treatment for lower back pain after February 2016.  This report does not appear to be accurate given that Dr Lim arranged an MRI scan in June 2016 and recommended physiotherapy and Chinese massage.  He also refers to Mr Mizzi’s prior back pain as “one off low back pain” which is not accurate, given Mr Mizzi’s history of intermittent back pain since at least 2012.
24	Dr Lim notes that the “pain became more serious” after the car accident and “failed to respond to conventional treatment”.
25	Mr Mizzi said that he thought his prior lower back pain was caused by a kidney problem, as his family has a history of kidney issues, but was told by Dr Lim that it was a back problem. 
26	He said that he did have some insurance coverage at the time of his earlier complaints of back pain, but he had not stopped working or contacted his insurer.  Mr Mizzi said: “I had some pain a little bit but that was before, but not chronic like now” and that he took painkillers and anti-inflammatory medication, and saw his chiropractor, and “[t]hat was about it”. 
Other medical issues
27	Apart from his back pain, Mr Mizzi has multiple other health issues.  In his report of 24 June 2022, Dr Lim notes that Mr Mizzi has bilateral carpal tunnel syndrome, asthma, sleep apnoea, Type 2 diabetes mellitus, hypertension and atrial fibrillation.  He also has C5-6 canal stenosis and likely C6 nerve root contact bilaterally causing neck pain.
28	Mr Mizzi says the neck pain developed about five years ago, sometime after the car accident and he is not sure whether it was caused by the car accident.  He did not recall his attendance on his chiropractor for neck pain in November 2014. 
29	It is apparent that, at various times, including at the time of his car accident, Mr Mizzi’s diabetes has not been well controlled.  Mr Mizzi says he has had diabetes for about ten years and he now takes insulin and his diabetes is well controlled. 
30	He says he developed carpal tunnel syndrome about five or six years ago, after the car accident, and that it has interfered with his ability to work “[a] little bit”.  He says it causes pain in his fingers and the palm of his hands.  He finds pulling things difficult, for example pulling up the anchor when he goes fishing.  He did not have surgery and has regular massage on his hands.  He says it did not stop him working and would not have caused him to retire.  He disputed a note in the report of his general practitioner, Dr Farhana Islam, who wrote that he was not able to use his hands for work.
31	He says he was diagnosed with sleep apnoea about three or four years ago when he was carrying more weight.  He used a CPAP machine for a while, but found it uncomfortable and noisy, and has stopped using that.  Since he lost weight his sleep apnoea has improved.
32	He says that, although he has been diagnosed with asthma, this did not cause him problems with his work or his day-to-day activities.  He said his weight and the weather worsened his breathing difficulties. 
33	He says he has always had high blood pressure.  About three years ago he had a stress test and was told that he needs to take half a tablet of a medication before he eats.  He says he is otherwise not troubled by his blood pressure or atrial fibrillation.
34	In June 2023, Mr Mizzi was diagnosed with liver cancer.  He was treated with chemotherapy and immunotherapy between June and November 2023, and subsequently has been on durvalumab 1,500 milligrams.  He has generally responded well to treatment, and although his cancer appears to be progressing, he has minimal symptoms or treatment.  The TAC does not rely on the cancer diagnosis as the reason that Mr Mizzi cannot work, or cannot work as much as he previously worked.  For the purposes of this application, Mr Mizzi’s cancer diagnosis is not of great significance. 
35	However, the TAC submits that Mr Mizzi’s multiple other health issues are a highly relevant factor in assessing the consequences of the transport accident.
Medical treatment after accident
36	On 2 August 2016, Mr Mizzi attended his general practitioner, Dr Lim, who noted he was in a car accident and was taking analgesia.
37	On 16 August 2016, he again attended Dr Lim complaining of lower back pain persisting since his car accident.  At that time he requested a medical certificate for one week. 
38	A CT scan of his lumbar spine on 23 August 2016 noted minor disc and facet degenerative changes, but no focal protrusions or foraminal stenoses.
39	This CT scan does not appear to be significantly different to earlier scans.  He was prescribed Panadeine Forte and Celebrex.
40	On 23 August 2016, he attended his chiropractor, who noted that his lower back had been sore since the accident, with aching and burning and with right lateral distal thigh numbness. 
41	On 6 September 2016, Mr Mizzi again attended Dr Lim with lower back pain, seeking a medical certificate for a week off work.  He was still being prescribed Panadeine Forte.
42	On 11 November 2016, Dr Lim referred Mr Mizzi to a pain specialist as his back pain had not resolved.
43	On 13 December 2016, Mr Mizzi saw Dr Andrew Muir, pain specialist, and on 21 December 2016 he had a CT-guided lumbar spine cortisone injection.
44	In April 2017, he had lumbar spine medial branch and sacroiliac joint blocks to assist in pain management.  At follow up with Dr Muir on 24 April 2017, he was noted to have had a good short-term response to the sacroiliac joint block with effective pain relief.  However Dr Muir noted he had a subsequent “substantial” flare-up of his symptoms.
45	His general practitioner, Dr Lim, continued to see Mr Mizzi and prescribe Celebrex.  He provided Mr Mizzi with medical certificates from time to time as required.
46	In May 2017, Mr Mizzi commenced osteopathy with Dr Jarryn Burke and attended sixty-six sessions between 2017 and June 2022.
47	In June 2017, Dr Muir noted that Mr Mizzi’s symptoms had improved with osteopathy and physiotherapy, but improvement was dependent on his activity levels.
48	Through 2018 and 2019 Mr Mizzi attended physiotherapy.  
49	In September 2021, Mr Mizzi underwent a CT-guided medial branch block. 
50	In September 2022, Mr Mizzi had a radiofrequency neurotomy in his lumbar spine.
51	Mr Mizzi has had CT scans and MRI scans from time to time, which show degenerative changes without evidence of radiculopathy.
52	There is no claim in this case that the radiology after the car accident shows any substantial difference to the pre-accident radiology, beyond expected age-related degeneration of the lumbar spine.
53	The issue for determination in this case is whether the car accident was productive of pain and symptoms that would not be expected in the usual course of age-related degeneration and, if so, whether those symptoms have caused consequences that meet the test.
Credit of the Plaintiff
54	Because this is a case that depends primarily on Mr Mizzi’s subjective experience of pain, the reliability of his evidence and the reliability of the history he has given to various doctors who have prepared reports, is particularly important.
55	Where an expert opinion is based on an inaccurate history the opinion is of limited assistance.
56	The TAC says Mr Mizzi is not a reliable witness and not a reliable historian and rely on two main factors:
Evidence and instructions
57	The TAC says Mr Mizzi is unreliable because of the following:
(a)	Dr Tony Kotsos saw Mr Mizzi in August 2017, and records that Mr Mizzi said, after the car accident he developed lower back pain and bilateral leg pain, which he had never had before.  Dr Kotsos notes this is not correct, as Mr Mizzi’s general practitioner, Dr Lim, has a record from October 2015 of “chronic recurrent low back pain” and intermittent sciatica in January 2016.  Dr Manikam had noted in November 2015 that Mr Mizzi had seen a chiropractor for back pain which had been getting worse.  Dr Kotsos concludes that whether Mr Mizzi suffered an exacerbation of his pre-existing back condition “cannot be determined”, because there are “clearly difficulties in accepting the history that has been given today”;
(b)	Dr Mary Wyatt saw Mr Mizzi in November 2022 and records a history given by Mr Mizzi that he had never had previous neck or back pain, but that he had seen his doctor about what he thought was kidney pain.  He thought he had perhaps had sciatica, but did not think he had back pain, although he remembered after a while that he had seen a chiropractor or physiotherapist.  Like Dr Kotsos, Dr Wyatt notes the medical records that show back pain prior to the car accident.  She says:
“The question arises as to whether Mr Mizzi’s back problem abated after the accident and his current back problems represent his underlying back condition, or whether the accident permanently aggravated his previous back pain. 
 A reliable history is probably about the only way of determining that and unfortunately the history is not sufficiently consistent with the clinical records to rely on Mr Mizzi’s advised history of his previous back problem. 
 I think, on the whole, it is more likely than not that his current back problem is a continuation of the underlying back problem prior to 2016.”; 
(c)	Mr Mizzi told Dr Wyatt that he did not work and had not worked for a month, which was incorrect.  Video surveillance footage shows Mr Mizzi attending work on consecutive days around the time of his consultation with her;
(d)	Mr Mizzi gave evidence that he wore a back brace when he attended work, however video footage shows him putting on his back brace for the purposes of attending his appointment with Dr Wyatt.  The TAC submits that Mr Mizzi put on the back brace to attend his appointment with Dr Wyatt to exaggerate his impairment;
Video surveillance
(e)	The TAC relies on video surveillance footage on 10 November 2022, 11 November 2022, 16 November 2022, 21 November 2022 and 22 November 2022;
(f)	The footage shows Mr Mizzi engaging in a number of tasks, including: attending workplaces in his truck; loading and unloading a ladder from his truck; unloading and carrying a piece of timber approximately 5 or 6 metres long; using a roller mower; climbing a ladder onto a roof carrying a silicone gun and doing some work on a roof; descending a ladder; leaning into the back of his truck for extended periods; loading and unloading equipment, including a fence post shovel; purchasing some food at a service station.  
58	The TAC submits that this surveillance footage is contrary to Mr Mizzi’s evidence that his son now runs the business and he only does a small amount of light duties.
59	The TAC says, the fact that the footage is taken over consecutive days and on each of those days Mr Mizzi is engaging in work, is contrary to his evidence that he largely does not work.
60	The TAC also says that the activities Mr Mizzi undertakes are contrary to his evidence that he is significantly impaired in his ability to perform his pre-injury work and his evidence that he cannot work on a reliable and consistent basis.
Other reliability issues
61	The TAC points to Mr Mizzi’s application for a disability support pension in 2022, supported by his general practitioner, Dr Islam, in which Dr Islam identifies Mr Mizzi’s numerous medical issues as the reason he is unable to work.
62	The TAC says this is in contrast to his evidence that his unrelated medical issues have had little or no impact on his work capacity.
63	The TAC also says that, to the extent that Mr Mizzi relies on his tax returns as evidence of his reduced capacity for work, those tax returns are entirely unreliable.  He has given a history to doctors that he employed someone to help him with his work after the accident, but that is not recorded in his tax returns.  His tax returns do not reflect the hours he says he worked prior to the injury, suggesting there was a significant cash component to his business that is unquantifiable.
64	His most recent tax return is, in the submission of the TAC, a fabrication that simply uses round numbers for income and expenses that is not credible.
65	The TAC says that the tax returns provide no support whatsoever for Mr Mizzi’s claim that he has a reduced work capacity as a result of the car accident. 
66	Mr Mizzi says, in relation to the video surveillance, that the activities demonstrated on the video are a significant reduction in the level of activity in which he was able to reliably and regularly engage in prior to the car accident.
67	He says that, although he can perform some movements, he struggles to do so repetitively and reliably.  When he does work, he will do what he can, but will usually need help and will use a back brace.
68	Mr Mizzi says that, because his son does not have a driver’s licence, he often does the driving and will drive his son to the worksites, but his son will do all the heavy lifting.
69	He says, when he has to carry equipment and tools he will notice increased pain, particularly on his left side.  He requires Panadol, Nurofen and Maxigesic to get through the day.
70	In relation to the video showing him on the roof, he says he was “able to get up on the roof because [he] had no choice to get up there”.  He said that, although he avoided getting on roofs and doing heavy work, this did not mean he could never do such tasks, or had not done these tasks since the car accident.  He thought that, since the car accident, he had been on a roof on two occasions.
71	In relation to his instructions to doctors, he said he did not recall what he had told the doctors, but that what he knows is he is not doing a great deal of work.  He said his son does a great deal of work and he does a little bit of work.  He said he is not “running the whole show” and that his son is “the muscle behind” the business.
72	In relation to his tax returns, he said his accountant did everything.  He said that “of course” he takes cash, because that is how people pay him.  He said he would pay young people who help him  “cash money, pocket money”, but that it was not “cash in, cash out” all the time. 
73	He said the hours he worked varied and the amounts he charged prior to his car accident varied.  He said “I can’t charge a pension (sic) like $200 you know.  These people call me up for years and years”.
74	In relation to his tax return that used “round numbers”, with income at $30,000 and opening stock of $15,000, Mr Mizzi said, “the accountant said to me ‘There’s a certain amount of money you pay tax on,’ and he said, ‘You’re on the threshold, you didn’t pay’. That’s what he told me”.  He gave his accountant his invoice book and says he relied on his accountant to prepare his returns.
Findings on credibility
75	While I accept that the earnings and outgoings in the 2021 tax return are unreliable and not an accurate reflection of Mr Mizzi’s earnings, I also accept his evidence that he relied on his accountant.  I do not think this damages his credibility in any significant way.
76	Mr Mizzi presented as a fairly unsophisticated man who was doing his best to give straightforward and honest evidence.
77	While Mr Mizzi’s affidavits create an impression of a more impaired work capacity than he actually has, I accept in general terms his evidence that he is working less and undertaking less strenuous tasks than he was able to perform prior to the car accident.  His tax returns may well present a difficulty in establishing the quantum of any claimed loss of earnings, however for the purposes of this application I am not required to quantify that loss.
78	I do not think his history to Dr Kotsos and Dr Wyatt that he had no prior back pain means he is such an unreliable historian that his evidence must be discarded about his current levels of pain.  I accept his evidence that he thought he had a kidney problem and had sciatica, and he did not consider himself someone plagued by “chronic back pain” prior to the accident in the way he now experiences it.  In that context, his history to doctors, while unreliable, does not stem from a desire to mislead or bolster his case.  I do not consider it means that I cannot now accept his evidence about his current level of pain.
79	Mr Mizzi’s evidence in court was also unreliable in relation to dates and how long he had experienced various conditions for.  He thought he had had carpal tunnel for about five years, when, in fact, the evidence shows problems with his hands dating back to 2011.  I attribute these discrepancies to the difficulties in remembering dates, particularly in the context of a complicated medical history over a long time, rather than any attempt to mislead.
80	The TAC’s case is that, to the extent Mr Mizzi is now incapacitated for work, I cannot be satisfied that this results from the car accident.  Further, the video surveillance footage casts significant doubt on his claimed incapacity for work.
81	It cannot be the case, for example, that his carpal tunnel syndrome so impairs him, and has from 2011 or 2012, so that he cannot now work as a result, but that, simultaneously, he is an unreliable witness because he still can work, as demonstrated by the video.
82	I prefer Mr Mizzi’s explanation which is that he can still work, but not to the same extent as he was previously able to.
83	The video footage does not show him engaging in tasks that significantly undermine his evidence about his work capabilities.  
84	Mr Mizzi’s evidence is that, although he has multiple unrelated health problems, these did not impair his ability to work.  I note he has had hand pain since 2011, but was able to continue working, albeit with perhaps some short periods off work.  He gave evidence that his hands had interfered with his ability to work a “little bit”.
85	Generally, I accept Mr Mizzi’s evidence that his unrelated conditions are not the cause of his reduction in work.  I accept his evidence that, in general, aside from short periods here and there, it is his back pain that has caused him to reduce his work load and the nature of the work he now undertakes.
86	The question is whether Mr Mizzi’s back pain that can be attributed to the car accident represents an aggravation of an underlying injury that meets the test of serious injury.
Medical opinions
87	Mr Mizzi has attended a number of medico-legal examinations since 2017.  There is not a great deal of variation in the opinions of the experts about Mr Mizzi’s diagnosis, which is that Mr Mizzi has underlying and longstanding degenerative change which is symptomatic.
88	Orthopaedic surgeon, Mr Garry Grossbard, examined Mr Mizzi in June 2021 and October 2022.  He considered Mr Mizzi had a soft-tissue injury to his cervical and lumbar spine which aggravated his underlying degenerative condition and which has significantly reduced his work capacity.  He considered Mr Mizzi’s symptoms appeared to be progressing, consistent with degenerative change.  He considered Mr Mizzi had a significantly reduced work capacity.
89	I note that Mr Grossbard has recorded that Mr Mizzi had to close down his business as his son had left.  Whether this was true at the time of Mr Mizzi’s consultation with Mr Grossbard is not clear.  It appears that his son did walk off the job for a period, but Mr Mizzi continued with the business.
90	In any event, Mr Grossbard formed the view that Mr Mizzi had no work capacity for physical work, which again is inconsistent with the evidence that Mr Mizzi did continue to work.
91	Neurosurgeon, Dr Ales Aliashkevich, examined Mr Mizzi in October 2022 and has noted that Mr Mizzi “continues to run his business” and that he performs limited duties up to twenty-four hours per week.  He will start with the workers and will then return home to rest, and will then check up on his workers.  He has recorded Mr Mizzi had up to five workers at one time, but had reduced.
92	It is not clear why Dr Aliashkevich and Mr Grossbard have very different work histories in October 2022.  It may be that Mr Grossbard incorrectly recorded that Mr Mizzi had closed down his business, when this was representative of an intention Mr Mizzi had at that time.  I note in Mr Mizzi’s affidavit of 27 October 2022, he indicated his intention to cease his business after Christmas.  In any event, it appears that Dr Aliashkevich’s history is correct, as Mr Mizzi did not close his business.
93	Mr Aliashkevich has recorded Mr Mizzi was having 5/10 pain on a good day and 10/10 on a bad day.  He considered Mr Mizzi’s level of pain to be consistent with a pain syndrome.  His assessment of the radiology indicates degenerative change both before and after the car accident that had not significantly progressed.  He considered that Dr Muir’s findings of somatic pain were consistent with his own impressions.
94	As I understand it, Mr Aliashkevich considers that the radiology does not account for Mr Mizzi’s symptoms.  That is, the degenerative changes seen are not so significant that a neurosurgeon would expect the level of pain Mr Mizzi describes, nor have they changed sufficiently since the car accident to account for the reported increase in consistency and level of pain.
95	Occupational physician, Dr Wyatt, examined Mr Mizzi in November 2022.  She recorded his instructions that he takes Panadeine Forte daily when he is active and attends intermittent physiotherapy.  She noted normal age-related findings on his radiology scans and a past history of back pain.  She said the only way to determine whether the car accident permanently aggravated his previous back pain was by obtaining a “reliable history” and that Mr Mizzi’s history was “not sufficiently consistent with the clinical records to rely on Mr Mizzi’s advised history of his previous back problem”.  She therefore concluded that his current back problem is a continuation of the underlying back problem prior to 2016.
96	Occupational physician, Dr Eman Awad, assessed Mr Mizzi in June 2024.  She took a history that Mr Mizzi’s son took over the business in about 2021, but that he continued to maintain a presence in the business, although activity would aggravate his symptoms.  She diagnosed an aggravation of cervical and lumbar spondylosis which was contributed to by both the car accident and his employment.  She considered Mr Mizzi had no capacity for his pre-injury duties and that his incapacity had been accelerated by the car accident.
97	Rheumatologist, Dr Kotsos, examined Mr Mizzi in August 2017.  He concluded that:
“… it is quite apparent that this man has a long history of chronic, predominantly left sided low back pain … .
 Although he does complain of ongoing back pain, there is no evidence on the history to suggest that he suffered an injury, but whether he suffered an exacerbation of his pre-existing condition cannot be determined, because all that can be relied upon is his assessment of his own condition and there clearly are difficulties in accepting the history that has been given today.” 
98	Orthopaedic surgeon, Mr Michael Dooley, examined Mr Mizzi in December 2022 and diagnosed a soft-tissue injury to his lumbar spine that involved some aggravation of underlying, naturally occurring age-related and previously symptomatic degenerative disc change.  He considered, like Dr Aliashkevich, that the intensity of pain and disability were greater than expected for someone with his organic condition.  He did not consider Mr Mizzi would be able to return to all pre-injury duties, but did have some work capacity.
99	Finally, Dr Brendan Hayman, consultant psychiatrist, examined Mr Mizzi in July 2021 and diagnosed an adjustment disorder with depressed and anxious mood.
100	In essence, Dr Kotsos and Dr Wyatt consider that Mr Mizzi gave an unreliable history of having had no prior back pain.  In the absence of radiology or other evidence of a frank injury, they could not accept his evidence as reliable and therefore could not conclude he had an aggravation of a pre-existing injury.
101	Mr Aliashkevich and Mr Dooley considered he had a soft-tissue injury that had aggravated a pre-existing condition, but there was likely some form of somatic or pain disorder associated with his level of pain and dysfunction.
102	Mr Grossbard and Dr Eman Awad, occupational health specialist, considered Mr Mizzi had suffered an exacerbation of an underlying degenerative condition.
103	The medical records, including chiropractic records, demonstrate that Mr Mizzi did have intermittent episodes of lower back and occasional neck pain prior to the car accident.  At times this pain was severe, for example on 27 January 2012, when it was described by his general practitioner as “so severe that he cannot work”.
104	However, what is also apparent is that, in January 2012, he had two attendances on his general practitioner for back pain, and had an x-ray at that time.  There was no further attendance for back pain until November 2014, when he saw his chiropractor for four sessions.
105	He did not return to his general practitioner with back pain until August 2015.  Between about October 2015 to January 2016, he saw his general practitioner and his chiropractor with back pain.  The pain at that time was severe enough to require Panadeine Forte and Celebrex.  In June 2016, his general practitioner arranged an MRI scan, indicating a further incidence of back pain.
106	The records disclose that, from 2012 until the car accident, Mr Mizzi experienced about four episodes of pain that required some sort of medical or chiropractic intervention.  Those episodes appear to have lasted a few weeks or a few months.  The records do not present a picture of constant, unremitting back pain, with a constant need for medication and intervention.
107	This can be contrasted with the medical picture after the car accident.  After the car accident he presented to his general practitioner, pain specialist, chiropractor and physiotherapist regularly.  On occasion he attended multiple times within a month.  He attended sixty-six sessions of chiropractic treatment between 2017 and 2022.  He underwent several medical interventions of CT-guided medial branch blocks and sacroiliac joint injections, and a radiofrequency neurotomy.  He has been regularly prescribed prescription analgesia.
108	I am satisfied that there is a sufficient basis from Mr Mizzi’s evidence as to his own experience of pre- and post-accident pain, and on the medical records, to support a finding that he has sustained an aggravation of a pre-existing degenerative spinal condition.  This is consistent with the opinions of Mr Grossbard, Mr Dooley, Mr Aliashkevich and Dr Awad.
109	Dr Kotsos and Dr Wyatt were not able to opine as to whether there had been an aggravation because they did not accept his pre-accident history as reliable.  Although that history was not reliable, having regard to the subsequent medical evidence I am satisfied that there was an aggravation of his underlying spondylosis.  
110	He now has pain that is more constant and at a higher level of intensity than he experienced prior to his accident.
111	To the extent that any part of that pain is caused by a pain disorder or somatic disorder, I am satisfied that it has an organic basis, being the aggravation of his underlying spondylosis, as diagnosed by Mr Dooley, Mr Grossbard and Dr Awad.
Consequences
112	Mr Mizzi claims the following consequences as a result of the aggravation of his back condition:
(a)	He has constant daily pain of variable intensity;
(b)	He takes daily prescription analgesia, including Panadeine Forte and Comfarol Forte, but by the end of the day he still finds he is in a significant degree of pain;
(c)	His lower back pain is the main pain he experiences, although he also has neck pain;
(d)	He is able to fish, but less regularly.  When he does fish, he pays for it with increased pain.  He needs his son’s assistance to launch his boat and he can only spend a few hours on the water;
(e)	He relies heavily on family members for domestic tasks, including mowing the lawn and home maintenance.  He used to enjoy getting the barbeque out and cooking, but rarely does this as the scrubbing, cleaning and bending required to maintain the barbeque and hook up the gas is difficult;
(f)	His pain flares up from time to time and these flare-ups can last for hours;
(g)	He struggles to sleep on his left side because of pain.  At times his back “locks up”.
113	Mr Mizzi claims that the aggravation of his back injury has impacted his capacity to work and this has had significant financial consequences. 
114	I accept, in part, the TAC’s criticisms of Mr Mizzi’s financial documentation and in particular his tax returns.  It is difficult to accurately assess his lost earnings based on those documents, as they appear to have either incompletely recorded his pre-injury earnings, or he has significantly overstated in his evidence his pre-injury work hours.
115	Given that Mr Mizzi is a man who, after the accident, drove himself back to work to pack up before presenting to hospital where he was diagnosed with three fractured ribs, I suspect that he is a stoic person who likely works even when he is in pain.
116	I find it likely, based on the video surveillance taken over consecutive days, that he has worked quite regularly since the accident.  It is more difficult to assess the extent to which he engages in physically-active tasks when he attends work.  Much of the video surveillance footage showed him “pottering about” in the back of his truck or garage and not undertaking heavy work.  When he was carrying or lifting items, it was not apparent that he was going to be the person using those items.  He gave credible evidence about the assistance he provided to a neighbour to build a trellis, for example.  I accept his evidence that he generally leaves the heavier tasks to others, and that he avoids work such as roof work when he can.  I accept that there are jobs he previously could have undertaken which he no longer does.
117	The TAC said that Mr Mizzi’s capacity for work is impacted by all his other medical conditions and I could not be satisfied that, if there is a reduced work capacity, any aggravation of his back is the cause.
118	In the case of Ilic v Transport Accident Commission, Judge Jordan did not consider that the fact the plaintiff had chosen to look after his unwell wife was a factor that he could consider in assessing the plaintiff’s work capacity.  The TAC submitted that Ilic is distinguishable on the facts because the plaintiff’s work capacity in that case was not impaired by his wife’s illness, even though his earnings had been impacted.    
119	The TAC submits that, in the case of Smith v Transport Accident Commission, the judge undertook a legally-incorrect analysis when he said that the supervening heart condition was not something to be taken into account.  However, the TAC submits this case can, in any event, be distinguished because the heart condition was a supervening condition, rather than a pre-existing condition.
120	The TAC submits that, in the case of lliadis v Transport Accident Commission, Mr Iliadis’s psychiatric problems and drug problems caused him a period of incapacity that was disregarded on the assessment of the consequence of Mr Illiadis’s spinal health.  The TAC submits that, again, Mr Illiadis suffered a supervening event that is distinguishable on the facts in Mr Mizzi’s case.
Findings
121	None of these cases are particularly helpful in the assessment I must undertake, as they deal with the way a supervening medical condition should be considered, rather than the way in which concurrent medical conditions should be assessed.
122	The only supervening event in Mr Mizzi’s various medical conditions is his diagnosis with liver cancer, on which the TAC does not rely.  His other medical conditions were all present prior to, or concurrently with, his pre-existing back pain, and therefore may be relevant when assessing the consequences Mr Mizzi has experienced.
123	I accept, as a general proposition, that if Mr Mizzi has other medical conditions that caused him to be incapacitated for work, or would inevitably have caused him to be incapacitated for work, the burden is on Mr Mizzi to disentangle those consequences and establish, on the balance of probabilities, that it is the car accident that has caused the consequences he claims.
124	However, there is no evidence that his other medical conditions have caused him any significant work incapacity:
(a)	Although his diabetes was not always well controlled, there is no evidence that it caused him any difficulties with his work and his own evidence is that it did not;
(b)	Apart from one occasion before his car accident, where he is noted to have such severe hand pain that he had been unable to work, Mr Mizzi says that his carpal tunnel has interfered with his ability to work “a little bit”.  I accept this evidence, which is supported by the fact that Mr Mizzi has not undertaken any surgical intervention for his carpal tunnel symptoms;
(c)	I accept Mr Mizzi’s evidence that his asthma and heart condition have not impaired his ability to work.  These have been longstanding conditions and he has been able to continue working with them without any apparent impediment;  
(d)	Even Mr Mizzi’s diagnosis with liver cancer and his treatment with chemotherapy appear to have had relatively-modest impacts on his life, causing some greater fatigue, but otherwise being well-tolerated.
125	The TAC says that the natural degeneration of his underlying back condition, unrelated to the accident, is also a factor in his current presentation and that I cannot look at his current condition and assume that it all arises as a result of the car accident.  To do so would be to fall into a “post-hoc fallacy”. 
126	However, it is apparent from the radiology that there is no significant age-related deterioration in his lumbar spine before and after the accident.  Instead, the existing degeneration has become symptomatic and continued to be symptomatic in the context of a soft-tissue injury arising from the car accident.
127	Therefore, I am satisfied on the evidence that the car accident is a material factor in Mr Mizzi’s reduced capacity for work.
128	Although I am unable to quantify, on the evidence before me, the exact nature and extent of that incapacity, I accept that in general he is able to work less, take on less strenuous jobs and must engage outside assistance, whether from his son or others.  On the balance of probabilities, I am satisfied that his reduced work capacity arising from the car accident has resulted in financial consequences for him.  These have arisen because he has had to pay others for work he would previously have been able to perform himself, and he has been able to work less than he otherwise would have worked.  The assessment of that loss may be difficult, particularly given the financial documentation presented at this hearing, but that is an issue for Mr Mizzi to grapple with on another day.
129	Mr Mizzi relies on the cases of State of Victoria v Glover and Demmler v Transport Accident Commission.  Mr Mizzi notes that the burden he must meet to establish pecuniary disadvantage is low.  In Glover, pecuniary disadvantage was found because of the loss of capacity for some limited overtime.
130	In an application made under s93(4)(d) of the Transport Accident Act 1986, the Court is required to consider whether the pain and suffering consequences combined with any pecuniary disadvantage consequences satisfies the “very considerable” test.  This is in contrast with applications made under Workplace Injury Rehabilitation and Compensation Act 2013 and Accident Compensation Act 1985, where pain and suffering consequences are to be considered separately from loss of earning capacity consequences. 
131	Given my findings that the car accident is a cause of Mr Mizzi’s reduced capacity to work, I am satisfied that he has suffered a pecuniary disadvantage.
132	Mr Mizzi otherwise has had regular chiropractic treatment and physiotherapy when he has been able to have a care plan.  He has developed a psychological response to his incapacity, which I accept is a significant matter for him.  He has no previous psychiatric history.
133	He takes regular prescription medication, but despite this medication, lives with constant, albeit, variable pain.  He has a reduced ability to engage in domestic and recreational activities he used to enjoy, including fishing and barbecuing.
134	He has had a number of invasive medical procedures which have provided temporary pain relief.
135	Having regard to the consequences that I am satisfied arise from an aggravation of his underlying spondylosis caused by the car accident, and compared with the range of cases I am required to consider, I am satisfied that Mr Mizzi has sustained consequences that meet the test of “at least very considerable”.  Accordingly Mr Mizzi will be granted leave to pursue a claim for common law damages.
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