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

Case No. CI-22-04174

Hazrat Omar Jahadyar	Plaintiff	
		
v		
		
Transport Accident Commission	Defendant	

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JUDGE:	HIS HONOUR JUDGE GINNANE	
WHERE HELD:	Melbourne	
DATE OF HEARING:	7 October 2024	
DATE OF JUDGMENT:	14 February 2025	
CASE MAY BE CITED AS:	Jahadyar v TAC 	
MEDIUM NEUTRAL CITATION:	[2025] VCC 100		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION 
Catchwords: 	Motor vehicle accident – paragraph (a) – cervical spine injury – previous but different injury – whether the plaintiff recovered – identification of compensable injury consequences – proper scope of paragraph (a) claim.
Legislation Cited:	Transport Accident Act 1986 (Vic).
Cases Cited:	Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Sonia Randhawa v Transport Accident Commission [2021] VSCA 135.
Judgment:	Application granted. 

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr C. O’Sullivan with 
Mr C. Woollacott	Shine Lawyers 	
			
For the Defendant	Mr S. Pinkstone	Lander & Rogers	

HIS HONOUR:
Introduction
1	The plaintiff seeks leave to commence a proceeding at common law to recover damages for injuries sustained in a transport accident on 20 July 2019.  He makes his application pursuant to the provisions of the Transport Accident Act 1986 (“the Act”) relying on sub-paragraph (a) of the definition of ‘serious injury’ contained in section 93(17) of the Act. 
2	The plaintiff’s particulars of injury filed in support of the application were expressed as follows:
1.	Pursuant to Section 93(17)(a) namely a serious long-term impairment or loss of a body function of the: 
a.	Cervical Spine; and 
b.	Right Shoulder / Upper Extremity; and 
c.	Central Sensitisation / Chronic pain. 
2.	Pursuant to Section 93(17) (c) namely a severe long-term mental or severe long-term behavioural disturbance or disorder:
a.	Psychological injury; and
b.	 Depression; and 
c.	Anxiety; and 
d.	Central Sensitisation / Chronic pain.
3	The plaintiff was represented by Mr O’Sullivan of counsel, leading Mr Woollacott of counsel.  The defendant was represented by Mr Pinkstone of counsel. 
4	At the commencement of the hearing, Mr O’Sullivan advised that the application would be pursued only under paragraph (a) of the definition of serious injury, with the body function being the spine, and with the particular injury or condition being best described by Dr Clayton Thomas, as a nociplastic chronic pain syndrome organic in nature.
Relevant Legal Principles – Serious Injury 
5	The meaning of ‘serious’ expressed in section 97(17) of the Act has been interpreted by the Court of Appeal in Humphries & Anor v Poljak (“Humphries”). It said:/
To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.
6	As explained in the above extract from Humphries, a determination of the seriousness of any pecuniary disadvantage the plaintiff has suffered as a result of a transport accident, is to be assessed in combination with, and not separately from, any pain and suffering consequences. 
The Documentary Evidence 
7	The plaintiff relied on substantial amounts of evidence: 
(a)	Affidavit of the plaintiff dated 10 November 2020;
(b)	Further affidavit of the plaintiff dated 3 April 2023;
(c)	Second further affidavit of the plaintiff dated 6 August 2024;
(d)	Affidavit of Hazrat Bilal Jahadyar dated 25 September 2024;
(e)	Radiology, including:
•	CT scan of the brain, cervical spine, chest, abdomen and pelvis dated 20 July 2019;
•	MRI of the brain and whole spine dated 21 July 2019;
•	CT angiography of the neck dated 22 July 2019;
•	X-Ray of the cervical spine dated 7 August 2019;
•	MRI of the cervical spine dated 2 March 2020;
•	MRI of the cervical spine dated 6 January 2021;
•	MRI of the whole spine dated 12 August 2021; and 
•	MRI of the cervical spine dated 19 October 2022.
(f)	Monash Health Discharge Summary dated 19 July 2019;
(g)	Report of Dr Anne Chen dated 7 August 2019;
(h)	Mental Health Plan of Dr Sukhwant Singh Mundae dated 9 August 2019;
(i)	Report of Dr Anne Chen dated 2 October 2019;
(j)	Report of Dr Philip Carter dated 29 January 2020;
(k)	Report of Dr Sangeeta Raghav dated 3 April 2020;
(l)	Report of Mr Simon Li dated 30 June 2020;
(m)	Report of Dr Sangeeta Raghav dated 30 July 2020;
(n)	Report of Dr Sukhwant Singh Mundae dated 31 July 2020;
(o)	Report of Dr David de la Harpe dated 10 February 2021;
(p)	Report of Dr Susan Wang dated 11 March 2022;
(q)	Two Reports of Dr Babak Farr dated 13 October 2022 and 16 November 2022;
(r)	Report of Dr Susan Wang dated 6 January 2023;
(s)	Extracts of Dr Susan Wang’s clinical notes;
(t)	Report of Dr Clayton Thomas dated 26 April 2023;
(u)	Report of Dr David Weissman dated 31 May 2023;
(v)	Report of Dr Robyn Horsley, dated 18 July 2024;
(w)	Report of Dr Miller dated 28 September 2020; 
(x)	Taxation Summary; and
(y)	Centrelink medical certificate dated 16 August 2024.
8	The defendant relied on the following evidence:
(a)	Pain Management Program Comprehensive Report and Ongoing Management Plan, dated 25 September 2023;
(b)	Four Reports of Dr Joseph Slesenger dated 13 November 2020, 29 June 2022, 23 May 2023 and 9 August 2024;
(c)	Two Reports of Dr Anthony Menz dated 24 May 2022 and 16 May 2023;
(d)	X-ray and CT Lumbosacral spine dated 2 August 2017;
(e)	MRI lumbo-sacral spine dated 4 May 2018;
(f)	Endeavour Hills clinical notes; and
(g)	Superclinic clinical extracts.
9	I have read and had regard to the affidavit evidence, cross-examination and re-examination of the plaintiff, and the lay and medical evidence relied on by the parties.  In the reasons that follow, I have referred to only such of the medical evidence that has proved necessary to explain the basis of the decision I have reached.  
The Plaintiff’s Affidavits
10	The plaintiff made three affidavits in support of his application dated 10 November 2020, 3 April 2023, and 6 August 2024.  
The First Affidavit 
The Plaintiff’s Background 
11	The plaintiff was born in Pakistan.  His parents died when he was young.
12	He arrived in Australia in 2008.
13	When he made his affidavit in November 2020, he was living with his two brothers.  He is married. He also deposed to having a girlfriend. 
14	He said he was “in reasonably good health prior his serious injury.”
Previous Transport Accident 
15	On 11 November 2016, the plaintiff injured his lower back in a motor vehicle accident, for which he made a TAC claim.  He deposed that he made a “reasonable recovery” from the 2016 accident.
Education 
16	After arrival in Australia, the plaintiff completed the equivalent of year 8 at Dandenong TAFE.  He studied English.  He obtained a Certificate II in Information Technology. 
Employment
17	The plaintiff deposed to performing various job roles in factories, warehouses, flooring and retail.  Prior to the accident, he was working with his brother as a landscaper and fencer. 
The Transport Accident 
18	On 20 July 2019, the plaintiff’s car was overtaken from the rear, and he was t-boned.  His car was towed away.  His TAC claim was dated 24 July 2019.  It was accepted by the Transport Accident Commission. 
19	He said he went home following the transport accident, and developed numbness his right arm.  He attended Monash Hospital in Berwick, before being transferred to Monash Medical Centre in Clayton.
20	On 21 July 2019, he had a CT scan of the brain and whole spine performed.
21	On 22 July 2019, he had a CT angiography of the neck vessels.
22	He said he wore a neck brace following the accident.
23	He said he saw doctors at the Parkview Clinic and was prescribed Endone, Targin, and Celebrex.  He had physiotherapy treatment at the Superclinic Dandenong, and hydrotherapy at Casey Fountain Gate.
24	He said his mental state deteriorated following the transport accident. He experienced depression and panic attacks, and was prescribed Zoloft and Aropax, and was referred to Dr Moses, a psychologist.
25	On 7 August 2019, he was reviewed by Dr Annie Chen a neurosurgery registrar at the Neurosurgery Outpatient Clinic.  He said he understood that he was found to have a ligament disruption at C6-C7. He was experiencing neck pain with headaches.  He had tingling in his toes.  He had an x-ray of the cervical spine.
26	On 2 October 2019, he was reviewed by Dr Chen.  He was still experiencing pain in his neck especially when looking up. Dr Chen recommended ongoing physiotherapy.
27	In October 2019, he commenced physiotherapy treatment at the Polytek Spinal & Sports Physiotherapy Clinic.
28	On 20 November 2019, Dr Carter of the Parkview Clinic, recommended that he use a therapeutic contour pillow.
29	On 28 February 2020, he saw orthopaedic surgeon Mr David de la Harpe.  He was suffering ongoing neck pain, right arm numbness, and associated headaches.  Mr de la Harpe arranged an MRI.
30	The plaintiff deposed that the March 2020 MRI of his cervical spine, reportedly revealed a disc disruption at C6/7, as well as disruption to the posterior longitudinal ligament.
31	On 23 March 2020, Dr Mundae of the Parkview Clinic referred the plaintiff to Dandenong Neurology.  He saw psychiatrist, Dr Sanjeeta Raghav.
32	In his first affidavit made 10 November 2020, the plaintiff deposed that his treatment had been disturbed by Covid-19, but he continued to consult with physiotherapist Simon Li, a psychologist Dr Moses, and a GP Dr Mundae.  He was also taking Zoloft 200 mg, Panadol and Nurofen.  He deposed that he did not want to take heavier pain killers, out of fear of their side effects. 
The Second Affidavit 
33	The plaintiff deposed in his second affidavit sworn 3 April 2023, that his neck injury remained much the same.  He said that he continued to experience ongoing pain and discomfort in his neck, on a daily basis. However, his mood had deteriorated and he had become increasingly frustrated by the lack of improvement in his condition and of ongoing restrictions.
The Plaintiff’s Home Life
34	The plaintiff deposed that his wife, and six children, remained living in Pakistan and he continued to live in his brother’s house with his two brothers together with one of their friends. 
35	He said that over the past few years, he and his wife had an on and off again long distance relationship. Following a trip to Afghanistan and Pakistan, they  reconciled, and he said he was hopeful that his wife and children would be granted visas and be able to join him to live in Australia.  He said his extra marital affair ended soon after he travelled back to Pakistan in December 2020, to see his grandfather who was terminally ill.
36	He had planned to be overseas for six weeks, but it turned into approximately 14 months because of the Covid-19 pandemic and  the instability of the government in Afghanistan.  He was unable to travel back to Australia and subsequently spent all of 2021 in Pakistan and Afghanistan and reconciled with his wife.
Health whilst Overseas
37	The plaintiff deposed that throughout 2021, he continued to experience chronic pain and discomfort in his neck.  He said that he saw a GP, physiotherapist, and a psychologist to help with his persisting anxiety and depression.
38	Whilst in Pakistan, he was referred for an MRI scan on his neck on 6 January 2021, which he believed showed disc bulges at C4/5 and C5/6, and a disc protrusion at C6/7 that was causing some compression of the exiting nerve roots. 
39	In February 2021, he saw a specialist, Dr Tauheed Fareed because of persisting neck and back pain. He said that Dr Fareed told him to manage his pain with ongoing medication and rest.  He also referred the plaintiff to a neurosurgeon for further investigation. 
40	On 12 August 2021, the plaintiff consulted neurosurgeon, Dr Sajjad, at the Khyber Teaching Hospital in Peshawar, Pakistan. Dr Sajjad arranged for a further MRI, which the plaintiff understood reported to show a disc bulge at C5/6 in his neck, and some degenerative changes at L4/5 in his back. 
Health on return to Australia 
41	The plaintiff returned to Australia in February 2022.  Soon after, he attended on his GP Dr Susan Wang, who recommended that he recommence physiotherapy and psychological counselling.
42	On 1 June 2022, the plaintiff said he attended the Equilibrium Psychological Services Clinic for the first time.  He had three sessions of counselling over the following couple of months. 
43	The plaintiff said that in or around the middle of 2022, he tried to return to work. He said he had been frustrated being off work for so long, and he was struggling financially, and so he thought he would try and attempt to return to some fencing work.  However, he said he soon realised he could not physically cope with his old job.  He said a friend, named Rahim, offered him some work, but he was only able to manage about five or six shifts.  He said he struggled to work more than a few hours each day due to his neck and shoulder pain and before it became unsustainable. He said he stopped work in July 2022. 
44	The plaintiff deposed that he had also experienced considerable difficulty sleeping at night.  He said that in August 2022, he was prescribed Circadin by his GP to help with his sleep.  Soon after, he was also prescribed Mirtazapine to help with his sleep and his mood. 
45	The plaintiff deposed that on 12 October 2022, he attended a pain specialist, Dr Babak Farr at Melbourne Pain Group, who recommended that he consider less physically demanding jobs that did not involve heavy lifting.  He also referred the plaintiff for a further MRI scan of his  cervical spine. The plaintiff said he understood that the MRI performed  on 19 October 2022, did not reveal any significant disc abnormality or neural compromise. He said he saw Dr Farr once more on 16 November 2022, who recommended that he undertake a pain management program.
46	On 9 March 2023, the plaintiff said he commenced a formal pain management program at the Victorian Rehabilitation Centre. The program involved trauma focused sessions with a psychologist and stress management sessions in a group setting. 
47	The plaintiff deposed that in addition to his ongoing pain management program, he was attending on Dr Wang, every one or two months.  He said he is prescribed both Sertraline 100 mg and Mirtazapine 30 mg to help in the management of his anxiety and depression. Since his previous affidavit, he said he had weaned himself off Targin, however, he was taking an average of four tablets of Panadol a day to help with his pain.  He also was using a combination of Voltaren gel and heat packs, most days to try and ease the pain and stiffness in his neck and right shoulder regions. 
Consequences 
48	The plaintiff deposed that his neck continues to be  his biggest problem.  He was experiencing persistent pain and discomfort across the back and right side of his neck. He said that the level and intensity of the pain varied from day to day, depending on the level of his activity.  He described the pain as ranging from a dull, irritating ache to a sharp stabbing type pain.
49	In addition, he said that his neck routinely felt quite stiff and tight.  He was finding it difficult to fully twist or turn his head and neck.  He said that if he keeps his neck bent forward for extended periods, the pain and stiffness tends to  worsen.  As a result, he was having particular difficulty  reading or using a computer for prolonged periods. He also was finding that looking up overhead and arching his neck backwards caused an increase in pain.
50	He said the pain in his neck continues to radiate into his right shoulder and arm. He was experiencing a burning type pain into his right shoulder and down into the back of his shoulder blade.  He was suffering from fluctuating episodes of pins and needles, and altered sensation into his upper arm and triceps region. He had regular episodes of tingling, pins and needles and numbness into the middle finger of his right hand that was impacting his right hand.  He is naturally right hand dominant. 
51	He said he was suffering frequent low moods and profound feelings of sadness and depression.  He was particularly upset by his inability to get back to work, and the resulting financial pressures. The pain in his neck was quite distracting and impacted on his ability to focus and concentrate.
52	He said he found it difficult to undertake any tasks that involved heavy lifting. Activities that involve pushing, pulling, reaching and overhead movements were also very awkward and uncomfortable to perform, due to his neck and right shoulder pain.
53	The plaintiff deposed that at home, he was quite restricted in what he can do.  He said he was able to do some light cleaning and cooking, however, he needs to avoid heavier tasks such as cleaning the bathrooms and vacuuming as they aggravate his pain. He said he had become quite reliant on his brothers and housemates to do most of this housework.  He said he could not help out much with lawnmowing or gardening activities, because of the condition of his neck. 
54	The plaintiff deposed that before the accident, he was quite active and enjoyed playing social games of cricket most weekends during summer with friends and family.  He said he used to be a fast bowler, and he enjoyed having a run around in the park playing cricket. Before the accident, he also used to keep fit by engaging in boxing training.  He said he attended a boxing class most weeks, and he went to the gym two or three times most weeks.  He said that since the accident, he had to give them away.  
55	Prior to the transport accident, he said he used to enjoy going away on camping trips on long weekends and holidays.  He enjoyed camping up around Gippsland and the Grampians National Park. He said he had not been able to return to camping as a result of his pain. 
56	The plaintiff characterised the impact on the quality of his life as devastating. He said physically and emotionally, he felt like a shell of his former self. He said that the most frustrating has been that his injuries have prevented a return to his pre-injury employment as a fencer and landscaper. 
57	The plaintiff deposed that several months before the accident, he established a company, OJ Fencing Pty Ltd.  In the immediate lead up to the accident, he was no longer working with his brother, but had been working as a self-employed fencer and landscaper. Following the accident, and due to his neck pain, he had been unable to maintain his involvement with that type of work, and so he sold his share of the business soon afterwards to his co-director. 
58	The plaintiff said that most of his work since coming to Australia had been physical, manual labouring type jobs, and as a result of his persisting neck pain, he is no longer capable of returning to work that involves heavy lifting and lots of physical activity. He said that his inability to get back to this type of work impacted heavily on his self-esteem and sense of identity and has caused him very considerable financial loss.  He said that he is uncertain what type of work he can realistically perform on a consistent and reliable basis, and is worried that his neck injury will significantly impact upon his future work options.
The Third Affidavit 
59	In his most recent affidavit dated 6 August 2024, the plaintiff deposed that his youngest son had recently arrived in Australia and was living with him and his two brothers and two nephews.  
60	The plaintiff’s wife and five other children, however, remain in Pakistan. 
Treatment 
61	The plaintiff deposed that he completed a multidisciplinary pain management program at Victorian Rehabilitation Centre in September 2023. The program included physiotherapy, psychology, occupational therapy, physiotherapy group and psychology group sessions.  
62	The plaintiff deposed to having made some improvement with his mental health, and the numbness and tingling in his right arm and right shoulder, as a result of the pain management program.  
63	The plaintiff deposed that he continues to:
(a)	attend on Dr Tanya Pietrzak, psychologist who treated him as part of the pain management program; 
(b)	attend on his treating doctor at the Parkview Medical Centre; 
(c)	use heat packs and topical ointments daily; 
(d)	utilise a TENS machine to manage his neck pain each night; 
(e)	attend Endeavour Hills Physiotherapy for his neck, shoulder and right arm pain and as of August 2024 had attended three sessions of five Medicare approved sessions; and 
(f)	attend Hydrotherapy once every two to three weeks and he would like to do so more often if he could afford to do so.  
Economic Loss 
64	The plaintiff said he attempted unsuccessfully to return to work in June and July 2022.  He remains in receipt of Centrelink payments. 
65	He is certified fit for light duties up to 15 hours per week.  He deposed that he has applied for “lighter roles” in warehouses, dispatch and as a storeman.  He said:
I hope to be able to perform a few hours of work per week given my ongoing issues with my neck, right shoulder, arms and my mental health, but to date I have not been successful with any job applications.
Consequences 
66	The plaintiff deposed that his pain and suffering consequences remain largely unchanged. Though his mental health improved initially after undertaking the pain management program, he says his mental health has since declined. 
Affidavit of Hazrat Bilal Jahadyar
67	The plaintiff’s brother, Mr Jahadyar, made an affidavit in support of the plaintiff’s Application dated 25 September 2024. 
68	He said that he and the plaintiff have lived together since they arrived in Australia in June 2008.
69	Since the accident, he said he has observed the plaintiff to be in apparent discomfort and pain at home.  He moves around the house slowly and regularly complains that his neck is sore.  Mr Jahadyar said that there have been occasions he has woken in the middle of the night and seen the plaintiff sitting on the couch watching TV.  Asking him why he was up, the plaintiff said that he could not sleep because of his neck pain. 
70	Mr Jahadyar deposed that since the accident, the plaintiff has contributed little to housework. 
71	Mr Jahadyar deposed that in the summer, he and his brothers played cricket regularly throughout the week, and on weekends with friends, and sometimes during winter. Before the accident, the plaintiff always played with them, but he has not done so since the accident, with the plaintiff explaining that it is due to his neck injury. 
72	Mr Jahadyar deposed that after arriving in Australia, he and the plaintiff commenced attending a local gym together and on occasions undertook boxing classes and lifted weights together. In addition to the gym, they would attend the local pool for the spa and to swim laps.  He said it did not appear that the plaintiff had returned to the gym since the accident and he now attended the pool for therapy, and not to swim.  
73	He said that the plaintiff no longer attends family weekend camping trips. 
74	He said that before the accident, the plaintiff was sociable and outgoing but is no longer. 
The Plaintiff’s Medical Evidence
Dr Philip Carter 
75	Dr Carter is a general practitioner at the Parkview Clinic in Narre Warren.  He prepared a report at the defendant’s request dated 29 January 2020. 
76	He said the plaintiff first attended the practice on 30 May 2019.  He saw Dr Mundae on 29 July 2019 following the transport accident and he continued to see Dr Mundae save for four occasions when due to Dr Mundae’s absences he saw Dr Carter. 
77	He wrote that reports from Monash Health Neurosurgery had indicated a diagnosis of C6-C7 posterior longitudinal ligament disruption. 
78	Post-accident, the plaintiff was prescribed Endone for pain, but continued to have pain and was prescribed Targin 2.5 mg that had been increased to 5 mg.  
79	The plaintiff also experienced secondary anxiety, and was prescribed Zoloft and referred to a psychologist.  He continued to take 50 mg Zoloft daily.
Dr Sangeeta Raghav 
The First Report 
80	Dr Raghav is a consultant psychiatrist to whom the plaintiff was referred for opinion and management by Dr Mundae from the Parkview Clinic. Dr Raghav wrote to Dr Mundae on 30 April 2020, following her initial assessment of the plaintiff.   
81	The plaintiff reported to Dr Raghav of suffering from anxiety symptoms.  She wrote: 
His symptoms are characterised by feeling sick, palpitation, sweating in his hands and lately getting mild chest pain on and off. Soon after the car accident, he was having repeated intrusive thoughts and the [sic] nightmares about the car accident. He was also fearful sitting in the car, even on the passenger seat. Now, he is able to drive for short distances but avoids driving for long distances. He also reported poor concentration and memory, tiredness, feeling on edge, restlessness and excessive worries about anything in general as well. He says that he used to get anxiety attacks but now it happens rarely. He also reported at times low mood, loss of interest in activities, lack of motivation, feeling of worthlessness, loneliness, poor appetite and poor sleep. He still socialises with his friends and enjoys their company. He also at times goes out with his brothers.
82	The plaintiff denied any history of past psychiatric illness. 
83	Dr Raghav penned the following account of the plaintiff’s personal history: 
Hazrat was born in Pakistan. He did schooling until Year 8 in Pakistan and then he and his family moved to Afghanistan when he was 15-year-old. He came to Australia when he was 17-year-old after his older brother sponsored him. He has two brothers who he lives with and one sister who is married and lives overseas. His parents are still living back in Afghanistan. Hazrat started doing diploma in IT through TAFE after moving to Australia but he did not like it and hence did not complete and he started working in retail which he did for three to four years and then also worked in factories/warehouses. He then started landscaping and later he got his business in partnership with one of his friends. He has been unemployed since the motor car accident. Hazrat had two significant relationships, one lasting for five to six months and the last one for one and half years.
84	In terms of diagnosis, Dr Raghav considered it was “a possibility that he is suffering from adjustment disorder with mixed anxiety and depressed mood. I would also keep the differential diagnosis of generalised anxiety disorder with major depressive disorder.”  She recommended that plaintiff’s dose of Zoloft be increased to 150 mg per day. 
The Second Report 
85	Following initial assessment, the plaintiff next saw Dr Raghav on 30 July 2020 and an updated report was provided by her to Dr Mundae.  She noted that the plaintiff had missed a few appointment with her, which he had attributed to requiring TAC approval. 
86	Dr Raghav wrote: “there is improvement in his anxiety but he still has ongoing depressive symptoms…I have advised him to increase the dose of Zoloft to 200 mg daily. I have also discussed with him to develop a routine or a structure with his day. I have encouraged him to do regular exercise like brisk walking as well as other exercises which he can do at home. To continue with psychologist who can provide him practical strategies to help with his mood and anxiety symptoms. Hazrat to continue using mindfulness-based techniques.”
87	The plaintiff was discharged from Dr Raghav’s care. 
Mr David de la Harpe 
88	Orthopaedic surgeon Mr de la Harpe, provided a report to the plaintiff’s solicitors dated 10 February 2021.
89	The plaintiff was referred to Mr de la Harpe by Dr Carter in November 2019 and the plaintiff attended for initial assessment on 28 February 2020.  Mr de la Harpe wrote that the plaintiff “complained of ongoing neck pain, right arm paraesthesia possibly in the C7 distribution and headaches. He said there was no past history of any similar symptoms prior to the accident. He found the symptoms were aggravated by neck movements and activity using his right arm and he had been taking Targin and previously Endone.”
90	Of his examination, Mr de la Harpe recorded: 
 …there was a range of movement of his cervical spine of 75° of rotation left and right, 10° of lateral flexion left and right, 15° of flexion and 10° of extension. There was no neurological abnormality in the upper or lower limbs.
91	Mr de la Harpe thought that the plaintiff had sustained a soft tissue injury to the spine as a result of the motor vehicle accident.  He said that “the initial MRI report finding was that of disruption of the posterior longitudinal ligament at C6/7 however a subsequent review MRI scan revealed the longitudinal ligament at C6/7 was not obviously abnormal. In particular, there was no evidence of ligament injury and it is my opinion that his condition has essentially stabilised.”
92	Mr de la Harpe did not consider it likely that the injury would deteriorate.  Whilst he thought there would be no need for surgery, he considered that the plaintiff may require maintenance type physiotherapy or pain control.  He thought it a possibility that the plaintiff would have chronic ongoing neck pain, which would make him unable to return to his pre injury employment.  He also thought it likely that the plaintiff’s condition would impact his domestic, leisure and social activities, in a similar manner as to how they had affected his employment possibilities. 
Dr Babak Farr 
93	Dr Farr is a rehabilitation and pain management physician to whom the plaintiff was referred by Dr Wang, and Dr Farr reported back to Dr Wang on 13 October 2022 and 16 November 2022.
94	In his November 2022 report, Dr Farr commented that the MRI scan of the cervical spine performed on 19 October 2022 had shown no sign of disc protrusion or nerve root compromise.  He said he explained to the plaintiff that based on the results of the scan that he was “structurally completely normal and his pain is mostly likely in the setting of central sensitisation and nociplastic changes”.
Dr Susan Wang 
95	Dr Wang, general practitioner, provided the plaintiff’s solicitors with an “updated medical report” dated 6 January 2023.  Dr Wang documented the plaintiff’s history since the accident including having travelled back to Afghanistan for a year and having seen doctors while overseas. 
96	On his return to Australia, he complained of continued neck pain and an inability to work.  A further MRI neck proved normal.  Dr Wang observed that the plaintiff had undergone an independent assessment by an orthopaedic surgeon whose opinion was that there were overriding non-pathological aspects to the plaintiff’s ongoing symptomatology which mitigated against a good prognosis. Dr Wang wrote that an orthopaedic surgeon (Dr Anthony Menz) did not believe that any further treatment would assist the plaintiff and that he had capacity for his pre-accident employment. 
97	Dr Wang diagnosed the plaintiff with “chronic pain syndrome from previous MVA, Associated Depression/Anxiety.” She did not think that he would necessarily benefit from further physiotherapy, but considered that he needed to keep up his gym attendance and swimming to be active.  She did not consider that the plaintiff required further review from a specialist, but thought that he needed to continue seeing a psychologist.  
98	As to work capacity, Dr Wang wrote “physically he should be able to work but due to his limits of skills and mental health, she wouldn't say he has capacity for any employment. He has capacity for employments which matches his experience and skills.”
Dr Clayton Thomas
99	Dr Thomas is a consultant in rehabilitation and pain medicine, who provided a report to the plaintiff’s solicitors dated 26 April 2023, following examination of the plaintiff on 20 April 2023.  
100	Dr Thomas wrote: 
Certainly the impact from this type of accident would be significant to the cervical spine. It is likely that his head went to the right side with the impact. There may have been some disruption to the posterior longitudinal ligament. Such an injury could also have an impact on one or other nerve root extending into his right upper limb.
The up-to-date imaging, however, indicates that there is no major structural abnormality present. There are three types of chronic pain syndromes organic in nature, one of which is nociceptive due to  changes of arthritis or degeneration. Acute pain from joint or muscle disruption also is nociceptive.
Another one is neuropathic in which nerves are damaged. Could be centrally or peripherally. There is no evidence of this in this man’s case
The third one is nociplastic and when central sensitisation is the primary problem. This is not an uncommon situation after road trauma. I think it is reasonable to indicate that his problems are in keeping with a nociplastic  chronic pain syndrome organic in nature.
At the time I saw him there was no evidence of any psychological, psychiatric or non-organic factors.
He continues to manage his pain from an analgesic perspective with simple over-the-counter analgesics (paracetamol). The nature of his condition is aggravated by significant activities involving his right upper limb.
The nature of his problem precludes his ability to return to his preinjury employment as a fencer and landscaper. This will be indefinite.
The nature of the problem is not degenerative. Degenerative problems are not a feature of his condition and are unlikely to occur.
From a work perspective he does have a current capacity to return to suitable employment. He presents as an articulate man. He cannot return to unrestricted physical work duties. He has capacity to work with thin set restrictions.
Dr David Weissman, Psychiatrist
101	Dr Weissman provided the plaintiff’s solicitors with a medico legal report following examination of the plaintiff dated  31 May 2023.  Dr Weissman noted that he had previously examined the plaintiff at the request of his solicitors and provided a report dated 7 September 2020.
102	Dr Weissman recounted the plaintiff’s time overseas in 2021, and of having returned to Melbourne in February 2022, and that whilst he was away he went back and forward between Pakistan and Afghanistan. The plaintiff said that overseas “I saw doctors there. I had some physiotherapy. I saw a psychologist there. I saw a specialist there”.  Dr Weissman said that the plaintiff was still taking heavy pain killing medication when he went overseas, however, he had abnormal liver function tests and was advised to cease analgesic medications, which he did.
103	The plaintiff told Dr Weissman that he tried going to work in around June or July 2022.  He said he tried doing some landscaping and fencing work for someone else and had attended for a couple of hours per day, but it lasted only four to five days in total, and he could not continue mostly because of his neck pain.  He also said that “psychologically, I was a bit depressed and anxiety”.
104	The plaintiff told Dr Weissman that he commenced pain management at the Victorian Rehabilitation Centre and had started seeing a psychologist named Melanie, about seven weeks ago for psychological counselling.  He said he had also attended stress management classes on a weekly basis for about four to five weeks.  He said he felt slightly more positive and optimistic due to recent treatment. 
105	The plaintiff told Dr Weissman that he continues to experience pain in his neck and  right shoulder, but he rarely experiences headaches. When asked whether he experiences pins and needles or numbness in his right arm, he said, “more weakness”.  He described his concentration and his short-term memory as “really bad” although he said there had been some improvement in his concentration and his ,short-term memory since commencing eye movement desensitisation and reprocessing treatment with his psychologist, and stress management.
106	When asked by Dr Weissman about his leisure activities and hobbies, the plaintiff said, “Other than walking and watching television, that’s about it. I’ve lost interest and pleasure in activities”.  He said he socialises very little.
107	The plaintiff told Dr Weissman that he is able to shower and dress himself independently, however, he showers only every second or third day due to diminished motivation and drive.  He said he did do some cooking at home and some laundry.  He said he no longer does any gardening.  He said he barely does grocery shopping and it is left to his brothers to do.  He said he had started to walk a little bit more since undertaking his pain management and therapy.  He drives only short distances, and for about 10 to 15 minutes, and as he does not have his own car, he borrows one of his brothers’ cars.
108	Dr Weissman said he found the plaintiff somewhat difficult to assess on examination, he appeared to be “somewhat illness and pain focused with some (abnormal) illness and pain behaviour.”
109	Dr Weissman said that it was possible that the plaintiff was experiencing “some symptoms and features of a somatic symptom disorder with predominant pain,” that was persistent, but Dr Weissman commented that it was difficult for him to know.
110	He wrote that at the time of examination, the plaintiff appeared to be experiencing “only mild post-traumatic stress and anxiety symptoms and traumatisation features, directly due to the circumstances of the subject transport accident itself.”
111	Dr Weissman said that on face value the plaintiff reported “moderate, mixed, reactive, depressive and anxiety symptoms, themes and features and he does seem to be suffering from a moderate, mixed, reactive, depressive and anxiety syndrome” that would satisfy the diagnostic criteria for a moderate chronic adjustment disorder.
Dr Robyn Horsley, Occupational Physician
112	Dr Horsley provided a medico legal report dated 18 July 2024, at the request of the plaintiff’s solicitors.
113	At the date of examination the plaintiff was taking:
•	Mirtazapine 30 mg - one tablet at night for sleep; 
•	Duloxetine 60 mg in the morning; and 
•	intermittent Nurofen and Panadol.
114	Dr Horsley noted the absence of the involvement of a psychiatrist, as part of the plaintiff’s care.
115	Dr Horsley reported that putting aside the plaintiff’s mental health, and considering his neck condition alone, she thought that he had a present capacity for suitable employment.  However, because of the length of time that he had been out of the workforce, Dr Horsley believed that it would need to be on a part-time basis in the first instance with restrictions, working 15-20 hours per week initially, with a gradual increase, as his work conditioning increased.  She did not consider that he had capacity for pre injury employment. 
116	Dr Horsley noted that the plaintiff told her that he would like to work in the security field, which she considered appropriate, provided he was not involved in an environment where he might need to physically interact with offenders.  Otherwise, if he obtained credentials for such work, then she thought such a role would be appropriate and compatible with his pre-existing, but presently intermittent back condition, and his current neck condition.
117	Dr Horsley reviewed a vocational assessment report of recommended employment options dated 24 May 2022, which included delivery driver (van or car), store person, warehouse assistant, crop farm worker, or motor vehicle parts interpreter.  Dr Horsley: 
(a)	 noted that the plaintiff had no training as a motor vehicle parts interpreter.
(b)	 said that crop farm work involves heavy physical work, which was beyond the plaintiff’s capacity, both because of his original back injury and his current neck problem.
(c)	did not think employment as a store person would be ideal, because of the repetitive manual handling involved. 
(d)	did not believe that delivery driving or courier work would be appropriate for the plaintiff, as it involves prolonged driving and rapid getting in and out of the car or van to deliver items. 
Mr Russell Miller, Orthopaedic Surgeon
118	Mr Miller provided a joint orthopaedic impairment assessment report dated 28 September 2020.  
119	Addressing the plaintiff’s spinal injury, Mr Miller said that the plaintiff had suffered an injury to the cervicothoracic and lumbar spine, which included a musculo-ligamentous strain and aggravation of degenerative disease.  He wrote that there was no evidence of radiculopathy, neurological deficit, or structural injury.  He said that the plaintiff’s injury was associated with the development of a chronic pain syndrome and that the symptoms were more severe in the cervicothoracic spine, which had a fair prognosis, as opposed to the lumbar spine, which he gave good prognosis. 
120	Mr Miller said that the plaintiff had experienced an adverse mental state reaction, which included anxiety, depression, and the development of a chronic pain syndrome. He said that this state of affairs complicated the assessment and management of the plaintiff’s condition, and he thought the plaintiff would  benefit from additional assessment by a psychiatrist. 
121	Mr Miller said that the relationship between the plaintiff’s spinal injury, its sequelae, and the accident was complex and multifactorial, and that the relevant factors included: “(1) pre-existing disease, (2) the first motor vehicle accident making a small contribution to the lumbar spine, (3) the second motor vehicle accident applying to the cervical spine, and (4) subsequent development of a chronic pain syndrome.”  Overall, he said that the plaintiff’s current clinical status was regarded as substantially related to the effects of the second motor vehicle accident. 
122	In terms of the plaintiff’s spinal injury, Mr Miller thought he would have difficulty with work that involves repetitive bending, repetitive lifting, lifting of weights of more than 10 kgs, and that he will have a requirement to shift his posture on a regular basis. Such restrictions were likely to be permanent, and are accident related.  Mr Miller thought it likely that mental health issues, including the plaintiff’s development of a chronic pain syndrome, will further impact his capacity to work. 
The Defendant’s Medical Evidence 
Dr Joseph Slesenger, Occupational Physician 
123	Dr Slesenger provided four reports at the request of the defendant, dated 13 November 2020, 29 June 2022, 23 May 2023 and 9 August 2024. The account that follows is derived from his most recent report. 
124	Dr Slesenger said that on examination, the plaintiff complained of residual pain that was of a severe level, and was centred in his neck, with radiating pain into the right shoulder and his right upper limb.  He said that previously he had experienced severe weakness and numbness in the hand, but this had improved. He had developed headaches and psychological symptoms, for which he was seeing a psychologist every three weeks, and had been prescribed medication. He had seen a psychiatrist twice.
125	As to his functional abilities, the plaintiff said he could walk for 20 to 30 minutes, and stand for half an hour and sit for an hour.
126	The plaintiff’s medications consisted of:
Zoloft 200 mg
Temazepam 
Nurofen 3 to 4 times a week.
127	The plaintiff reported having previously taken Endone and Targin, but said that he no longer did so.  He was having physiotherapy once a week, and had previously attended hydrotherapy, but it ceased due to Covid-19 restrictions.  
128	As to his activities of daily living, the plaintiff told Dr Slesenger that he could dress, wash, shower, and toilet himself.  He said he was waking at around 11:30 am of a morning, and retiring to bed at around 11:00 pm, although he struggled to sleep. He said he may walk in the park near his home, but most of the day was spent in bed  watching television.  He lives with his brothers and was able to engage in light domestic tasks, including some light shopping and light laundry.  Whereas he had previously enjoyed playing cricket, and attending the gym, both these pursuits had stopped since the accident.
129	Dr Slesenger noted that the plaintiff could read and write in English, and he could speak Pashto, and had good grammar and spelling skills, as well as good computer skills.
130	Dr Slesenger thought that the plaintiff had sustained a soft tissue injury to his cervical spine, and presented with chronic neck pain with right upper limb radiating features, although he noted what he considered to be a number of inconsistencies in the plaintiff’s presentation. 
131	Dr Slesenger believed that the plaintiff had retained a capacity to work, with restrictions on pushing, pulling, carrying, or lifting over 10 kgs, avoiding sustained forward reaching, avoiding over shoulder reaching, and avoiding repetitive neck and shoulder tasks.  
132	Dr Slesenger commented on a number of proposed suitable duties. As to:
(a)	work of a delivery driver: he believed the plaintiff could undertake the role, with the restrictions he had outlined. 
(b)	a store person: he did not believe it was suitable as the demands of the position were likely to lie outside the plaintiff’s capacity limits. 
(c)	a retail sales assistant was a role he believed the plaintiff could return to work in, consistent with the restrictions he had outlined.
133	The plaintiff recounted the following complaints to Dr Slesenger:
(a)	Neck: the plaintiff said he had moderate neck pain, located over the differential of lateral aspect of the neck with mild restriction to the rotatory movements.  He advised that the pain radiated into the right upper limb, right shoulder and right hand (particularly to the middle finger).  He had weakness in the hand and restricted range of motion in the shoulder;
(b)	Sleep disturbance; 
(c)	Psychological symptoms: for which it been seen by a psychologist and he continues to see the same; 
(d)	Difficulty:
1.	forward reaching; 
2.	laterally raising; and
3.	lying on his right side;
(e)	He could walk stand and sit for 25 minutes.  
134	Dr Slesenger related that the plaintiff ceased work at the time of the accident.  He noted that the company through which his business obtained work, ceased trading. He travelled overseas in December 2020 and, on returning to Australia, he discussed his return to work arrangements with his doctor. He said he had attempted to return to work on two occasions, although he was only able to remain at work for a very short period of time.
135	Dr Slesenger diagnosed a soft tissue injury to the cervical spine, as well as chronic neck pain with right upper limb radiating features, but without confirmed evidence of radiculopathy.  He believed that there was a functional element to the plaintiff’s presentation. He believed the plaintiff had retained a capacity for work with restrictions, he had earlier noted in the roles referred to, and for a return to pre injury hours.
Dr Anthony Menz, Orthopaedic Surgeon 
136	Dr Menz provided two reports to the defendant’s solicitors dated 16 May 2022, and 16 May 2023, following on an examination of the plaintiff he performed on 1 May 2023.  
137	Dr Menz recounted the circumstances of the accident on 20 July 2019.  He wrote that following the accident, and perhaps approximately one or two hours later, the plaintiff commenced to suffer next neck pain, along with pain and numbness extending into his right arm and hand.  At Monash Hospital, he was an inpatient for approximately five days. An MRI scan revealed a tear of the posterior longitudinal ligament of the C6/7 level, and he was released with a collar. On  review in August 2019, the collar was removed, and he embarked on a 12 month course of physiotherapy, which the plaintiff told Dr Menz did not help his neck pain at all.
138	On 3 March 2020, he was reviewed by Mr de la Harpe, who noted that the plaintiff had an excellent range of motion of the cervical spine. Neurological examination of his upper limbs was normal, and an MRI scan taken on 2 March 2020, was also reported as normal.
139	Dr Menz documented the plaintiff’s trip to Pakistan in 2021 for about a year, and that an MRI scan performed in Pakistan, also was reported as normal.  The plaintiff underwent physiotherapy in Pakistan.
140	The plaintiff reported that prior to the subject accident, he had not previously suffered from neck problems, but he was involved in a motor vehicle accident in November 2016, in which he hurt his back, but it resolved within 12 months.
141	Dr Menz recorded that the plaintiff had come under the care of Dr Farr, pain specialist at the Melbourne Pain Group, who had reviewed him on 16 November 2022, and repeated a cervical spine MRI scan which was reported as normal. As a result, Dr Farr organised for the plaintiff to commence a pain management program, which the plaintiff told Dr Menz had about six weeks left to run.
142	Dr Menz said that the current position was that the plaintiff’s neck and right arm pain was unchanged from when he saw him initially a year earlier. The plaintiff said he tried to return to work as a landscaper on three to four separate occasions, but each time it aggravated his neck and arm symptoms.
143	As to the plaintiff’s personal history, in his first report, Dr Menz reported that he was not married, had no children and lived in shared accommodation.  However, in his second report Dr Menz wrote “he is now married and has six children and he lives in share accommodation in Melbourne with his brother.”
144	The plaintiff said he used to attend a gym in Dandenong three times a week prior to the accident, however, he now spends most of his time at home and doing very little.
145	Dr Menz reported that the plaintiff described his neck and arm pain as 5 out of 10.  He said he could do some cooking and he was able to drive short distances. He said he had a walking tolerance of about 30 minutes.
146	On examination Dr Menz recorded that the plaintiff had a “very good range of movement” with: 
Flexion 				40° 
Extension 				30° 
Lateral flexion to the right 		40° 
Lateral flexion to the left 		40° 
Rotation to the right 		80° 
Rotation to the left 			80°
147	Neurological examination of the plaintiff’s right upper limb revealed decreased sensation along the entirety of his right arm.  His reflexes were present and normal. He appeared to have voluntary motor power weakness.
148	Addressing radiological investigations, Dr Menz noted that since his first report, Dr Farr had repeated the MRI scan of the plaintiff’s cervical spine on 19 October 2022, and which was normal.  Dr Menz observed that the plaintiff had undergone multiple MRI scans of the cervical spine, all of which had been reported as normal.
149	Dr Menz reported that it is possible the plaintiff sustained a posterior longitudinal ligament injury at C6/7 as a result of the accident, however, repeat MRI scans showed no evidence of a previous ligamentous injury. At any rate, Dr Menz expressed the view, that a minor ligamentous sprain to the cervical spine should have resolved within three months.
150	Dr Menz said that on examination, the plaintiff elicited several Waddell criteria, including decreased sensation along the whole of the plaintiff’s right arm and tenderness to very light touch.  Dr Menz said he could not explain the plaintiff presenting with ongoing symptoms, in light of there being an absence of evidence of disc protrusion impinging on any nerve roots and no radiculopathy.
Cross-Examination of the Plaintiff 
151	Mr Pinkstone suggested to the plaintiff that on his first attendance on Dr Slesenger he had not provided him with a truthful account, as Dr Slesenger in his initial report had recorded that the plaintiff had not been involved in any previous motor vehicle accidents. The plaintiff said he did tell Dr Slesenger about the 2016 accident.
152	The plaintiff agreed that he suffered back pain as a result of the 11 November 2016 car accident. Clinical records Mr Pinkstone put to the plaintiff included attendances on Dr Elwitigala:
(a)	on 25 November 2016, complaining of back pain that radiated into his right leg.  On that occasion the plaintiff appears to have been prescribed Voltaren. It was recorded as well that he was tender in the lower back and the plaintiff agreed. 
(b)	on 9 December 2016, the plaintiff again saw Dr Elwitigala who noted the plaintiff complained of four weeks of back pain following a car accident (the earlier accident) and of having been referred for a CT scan of his lower back. 
(c)	on 26 January 2017, the clinical notes of the plaintiff’s attendances included, “back pain for long time radiate to go [right lower leg or right lower limb]”. The plaintiff agreed that at that stage he had numbness in his right leg. He was also recorded as being unable to undertake any heavy physical work, and the plaintiff agreed this was because of back pain radiating into his right leg.  However, the plaintiff said that during this period of time when he was off work because of the back pain that extended into his right leg, he nonetheless, was able to drive around undertaking estimating and quoting for fences while his partner was undertaking the physical work.
153	Although the plaintiff said that his back pain improved over time, he was taken by Mr Pinkstone, to clinical records including an attendance on 3 February 2017 at Dandenong Super Clinic where it was recorded “back pain. Pain in[ into the right lower leg or limb]… Lower back pain while sitting for long time.”
154	As well, on 7 February 2017, the plaintiff was described as having attended for lower back pain with “bilateral sciatica” and was prescribed Mobic and was referred to a physiotherapist Mr Simon Lee. The plaintiff agreed that Dr Martin Hill discussed with him the results of the CT scan, but he could not recall whether he told him that the pain he complained of was disproportionate to the results of the scan.
155	On 1 May 2017, the plaintiff saw Dr Hill, and the record of attendance included, the plaintiff continuing to complain of “[lower back pain] with right leg numbness” and being prescribed tramadol 50 mg four times a day, in addition to Mobic, which the plaintiff agreed with Mr Pinkstone, indicated a worsening. However, the plaintiff said that after this, he attended swimming as well as undertaking hydrotherapy and physiotherapy, and that these activities, were helping him.  On 7 July 2017, Dr Hill’s record of the plaintiff’s attendance was one of “persistent [lower back pain]. Chiro did not help”.  However, the plaintiff maintained that the chiropractic and physiotherapy treatment was of help to him.
156	A note of entry for an attendance on Dr Hill on 8 August 2017, included an increase in Lyrica from 25 mg to 75 mg.  On 18 August 2017, the plaintiff saw Dr Hill and a referral was made to Mr Timms the neurosurgeon, and the plaintiff had his tramadol prescription increased from 50 mg to 150 mg.  On 6 September 2017, he was prescribed Palexia.
157	On 13 October 2017, Dr Hill requested a CT guided cortisone injection and increased tramadol to 200 mg. 
158	On 22 February 2018, Dr Hill again prescribed tramadol 200 mg, Lyrica 75 mg and Mobic. 
159	On 14 March 2018, Dr Hill recorded that the plaintiff had attended with “Escalating back and leg symptoms”. The note also included, “More neurogenic in nature. Lyrica dose increased.”
160	The plaintiff maintained that despite the prescribing of medication, and the attendances on Dr Hill to which he was referred, that he was nonetheless able to work, and was still able to engage in boxing.
161	When it was suggested to the plaintiff by Mr Pinkstone, that the records disclosed that he had failed to make a full recovery from his November 2016 accident, the plaintiff’s response was that he had managed to return to work and was working full-time, and he thought he had been able to return to the physical work of fencing, as opposed to estimating and quoting, and this had occurred perhaps in 2018 and/or 2019, and lasted until he suffered the subject transport accident.
162	In April 2019, the plaintiff gave up the partnership in which he had been involved, and established a business called “OJ Fencing.”  The plaintiff said he worked in this business from its inception, until the transport accident of 20 July 2019.
163	Subsequent to the July 2019 accident, the plaintiff moved from the Dandenong Super Clinic to Parkview Medical Clinic.  On 9 August 2019, Dr Mundae recorded “pain and neck. Severe anxiety. Fear and phobias. Accident happened near house. Every time pass gets upset.” The plaintiff agreed with Mr Pinkstone that one of the reasons he was unable to work was severe anxiety.
164	The plaintiff was challenged about his account that he suffered ongoing pain following the 2019 accident. He was taken to an entry made by a registrar from Monash Health following his release from hospital, where it was recorded that he was experiencing “intermittent” pain in the neck, particularly when looking up. The plaintiff said he experienced “ongoing” and not “intermittent” pain.
165	The plaintiff was asked about an attendance on Dr Raghav, whose report dated 30 April 2020, noted the car accident on 20 July 2019, but that, “His neck pain is a lot better now.”  The plaintiff said, “it might have gotten better, yes”.  By the time of Dr Raghav’s April 2020 report, the plaintiff who had previously been taking painkillers, was controlling his pain by the use of Panadol taken on an as needs basis. 
166	Dr Raghav also recorded that since the July 2019 accident, the plaintiff had been suffering anxiety symptoms characterised by feeling sick, palpitations and sweaty hands and mild chest pain on and off, and following the accident had experienced repeated intrusive thoughts and nightmares about the car accident.
167	The plaintiff was directed to Dr Raghav’s second report dated 30 July 2020, in which she recorded that the plaintiff had experienced “on and off neck pain and has been involved with physiotherapy.”  The plaintiff did not accept that his neck pain was other than consistent.
168	The plaintiff said that at the end of 2020, he took what was intended to be a six week trip to Pakistan. To the proposition that he would not have considered travelling to Pakistan for such a period of time, if his neck pain was at that time as bad as he had described, the plaintiff said that it was not just a holiday, but he had wanted to see his grandparent who was very sick.  The plaintiff said that during the course of the trip, he crossed the border from Pakistan into Afghanistan, where most of his family was located, including his wife and six children.
169	The plaintiff said he did not work whilst he was in Afghanistan, and his means of income was basic, and while he was there, he received financial assistance from his two brothers in Australia.
170	The plaintiff said he saw Dr Farr for neck pain in February 2021.
171	The plaintiff was referred by Mr Pinkstone to his two attendances on Dr Weissman psychiatrist at the request of his solicitors, with the second attendance, occurring in May 2023.
172	The plaintiff was asked about a pain management program between March and September 2023 to assist with his neck. The plaintiff said he obtained some improvement from the program with his right arm pain and numbness, and to some degree with his mental health, however, he said his neck condition had not improved very significantly as Mr Pinkstone suggested. However, Mr Pinkstone put to the plaintiff a commentary from Dr Slesenger on 9 August 2024 who noted that the plaintiff had undertaken a pain management program, and the plaintiff having said that it was “beneficial in particular with regard to his mental health and with regard to his cervical spine symptoms. Overall he advised of 30 per cent improvement in his neck pain…” The plaintiff said he told Dr Slesenger that he had obtained improvement in his arm pain, as well as with his mental health, but did not accept the correctness of the assessment Dr Slesenger attributed to his neck.
173	Mr Pinkstone put to the plaintiff a history Dr Horsley recorded of his symptoms. “He stated that his neck pain has considerably improved since the pain group involvement. The discomfort is located at the back of the neck radiating into the shoulder girdle. The numbness that was previously present has resolved.”  Dr Horsley’s report also included that “It previously went down the right arm into the middle finger. His power remains reduced. Headaches are resolved”. Dr Horsley recorded that in discussion with him, “He presents with ongoing intermittent neck pain. There has been a significant reduction in pain, resolution of headaches and resolution of paraesthesia in the right arm,”
174	Mr Pinkstone put to the plaintiff a number of comments and opinions that have been expressed at various times, in order to suggest that the plaintiff’s psychological state accounts for the limitations he relies upon, as opposed to an organic compensable condition, and in furtherance of that contention, Mr Pinkstone referred the plaintiff to the Network Pain Management Program that commenced on 9 March 2023 and concluded on 7 September 2023 that included:
Mr Jahadyar reported ongoing symptoms of Depression, Anxiety and Stress as reported on the DASS- 21 - At discharge, despite some improvements on these (per outcome table below), he continued to score in the severe range depression symptoms, extremely severe anxiety symptoms (including social anxiety), and moderate-severe stress symptoms. 
With regards to his PTSD symptoms, he improved following EMDR treatment within his program, from 71/80 to 33/80 (a clinically significant improvement). This is consistent with his experience of car travel becoming less distressing/triggering - however he has some residual symptoms as evidenced by the current PCL-V score of 33/80 suggesting further treatment and support for ongoing exposure to current triggers would be beneficial under a local psychologist. 
Mr Jahadyar continued to have trouble with broken sleep, despite individualised education and goal setting relating to sleep hygiene, and anxiety/PTSD treatment. 
Therefore, Mr Jahadyar would benefit from ongoing psychological support in the community to address these symptoms. The frequency and duration of the sessions will be determined by the clinician and Mr Jahadyar.
175	Mr Pinkstone also referred the plaintiff to Dr Weissman’s report dated 31 May 2023, who wrote that he asked the plaintiff how he sees the future, and the plaintiff replied, “to be honest, with this EMDR, it gives me a little bit of hope that I can go back to activities” and the plaintiff said, “yes”. 
176	Mr Pinkstone asked the plaintiff about the contents expressed in a report by Dr Horsley dated 18 July 2024, who wrote that: 
Nightmares have continued; he experiences them once to twice per week. He experiences flashbacks once every couple of weeks. These have improved substantially. He can be irritable and short to temper. He can be emotional and tearful. His appetite is adequate. Pre-injury, he weighed 77kgs. He currently weighs 88kgs. 
He stated that he experiences feelings of anxiety whenever he gets into the car, for an appointment. He has a fear of going outside of his house and meeting people. He gets very anxious. He experiences palpitations and sweatiness. He stated that when he went out of the consulting room to do the Beck Depression Inventory and Beck Anxiety Inventory, he experienced his heart racing and palpitations.
177	The plaintiff said that after he completed the pain management program, some of his symptoms had returned, and he was experiencing ongoing nightmares and perhaps weekly or twice a week, but that his anxiety when driving had improved. 
178	Mr Pinkstone put to the plaintiff that Dr Horsley had reported:
He presents with ongoing intermittent neck pain. There has been a significant reduction in pain, resolution of headaches and resolution of peripheral paresthesiae since being involved with the Victorian Rehabilitation Pain Group. Anxiety remains an ongoing and considerable issue.
179	The plaintiff said that to the extent Dr Horsley was relating improvement in his right hand, he agreed.  However, he maintained that it is his neck pain that stops him from working and enjoying the things he used to do.
180	The plaintiff takes mirtazapine to address his sleeping problems.  Mr Pinkstone put to the plaintiff the following comment from Dr Weissman: 
I asked him about his sleep. He told me that the Mirtazapine helps him to fall asleep at night. He then occasionally wakes up in the middle of the night and finds it difficult to return to sleep again. I asked him what wakes him up in the middle of the night. Sometimes it is due to bad dreams about the accident, sometimes it is due to negative thoughts, worries and “stress”.
181	The plaintiff said it was pain, nightmares and anxiety that accounted for his disturbed sleep. 
182	The plaintiff said he tried to play social cricket possibly twice earlier in 2024, after completing the pain management program. 
Re-Examination
183	The plaintiff disavowed a capacity to undertake fencing work with the condition of his neck. 
184	The plaintiff said Duloxetine assists with his neck pain.
185	The plaintiff said he sold his share in the business he established, because he concluded that he would be unable to return to the work involved in that enterprise. 
Defendant Submissions 
186	Mr Pinkstone submitted that the primary issues are whether the plaintiff has proved the identification and cause of a compensable injury that has resulted in a current and ongoing physical impairment.  Mr Pinkstone submitted that the resolution of the issue depended on whether the opinion of Dr Thomas, and his diagnosis of central sensitisation should be preferred, to the opinion principally expressed by Dr Menz, that the plaintiff’s injuries are all functional, and lack an organic or pathological  basis.
187	I asked Mr Pinkstone what the Commission’s submission was in relation to Dr Slesenger’s clinical notes, which recommended restrictions on the plaintiff’s movements, such as lifting.  Mr Pinkstone submitted that the Commission accepted the plaintiff had suffered an organic injury, in the form of a soft tissue injury, but that it contends that it has resolved.  Mr Pinkstone submitted that I could be satisfied that although the plaintiff had suffered a soft tissue injury from the 2019 accident, and that the earlier scans showed a disruption to the posterior longitudinal limit, it was no longer identifiable by the time of MRIs in 2022. The characterisation Mr Pinkstone sought to attribute to Dr Slesenger’s recommended restrictions was that he was “giving the plaintiff the benefit of the doubt”. 
188	Mr Pinkstone addressed the report of Dr Wang dated 30 April 2024, who diagnosed the plaintiff with adjustment disorder and chronic pain syndrome. Mr Pinkstone submitted that Dr Wang provided no organic basis for such a diagnosis of injury and Dr Wang went on to say that that the plaintiff’s “chronic pain is difficult to treat. It is more psychological rather than physical and it's likely he will have that for the rest of his life”.  As Mr Pinkstone’s submission went, Dr Wang had not adopted the opinion of the existence of central sensitisation.
189	Mr Pinkstone submitted the plaintiff’s medications for pain management are “minimal”, and include no more than Panadol taken intermittently throughout the course of a given week, and that this has been the consistent state of affairs for over four years.
190	Mr Pinkstone submitted the plaintiff’s condition presents with florid psychological aspects and it had been the subject of much opinion by Dr Weissman and Dr Horsley.  Mr Pinkstone submitted that the phobias, anxiety and nightmares to the extent they incapacitate the plaintiff are outside the scope of Richards v Wylie, and he referred to the decision of Sonia Randhawa v Transport Accident Commission (“Randhawa”). 
191	Mr Pinkstone noted that the plaintiff agreed that his ability to drive, and go out socially, are affected by his psychological condition.  The plaintiff’s evidence was that he continues to see a psychologist, with this being the extent of professional medical treatment he is receiving. 
192	Mr Pinkstone characterised the reporting by Dr Farr to be that the plaintiff possessed a “pristine spine”.  Mr Pinkstone submitted that the findings by Dr Farr dovetailed with Dr Menz’s opinion, that the plaintiff’s presentation is non-pathological. Mr Pinkstone submitted that by contrast, Dr Thomas’ report of findings are more than a year old.  Mr Pinkstone pointed to the absence of relevant radiology and to evidence that the plaintiff’s injuries have clearly improved. 
193	Mr Pinkstone submitted that during the period of time that the plaintiff was attending a psychologist, he was not actively attending to any matter to do with his physical pain.  He was not taking specific medications for his pain, and he testified that he had looked for and applied for jobs. 
194	Mr Pinkstone submitted that the plaintiff’s case based on economic disadvantage, is that he can no longer go back to heavy fencing.  Mr Pinkstone cautioned against accepting that the plaintiff is in fact incapacitated for work.  Mr Pinkstone elaborated that the plaintiff’s argument rests on what he characterised as vague evidence about an attempt in mid-2022 to return to his work, but only lasting six shifts.  Mr Pinkstone submitted there was nothing in the plaintiff’s brother’s affidavit evidence, to corroborate the plaintiff’s account of his inability to work as a fencer, and that his affidavit had not taken account of the plaintiff’s past injury history.  It was submitted that Dr Horsley, Dr Slesenger, and Dr Menz each express the opinion that the plaintiff has a capacity for work. 
195	Mr Pinkstone submitted that the plaintiff should be assessed as unreliable, and that his evidence in relation to activities involving housework, the gym, boxing and playing cricket were “fairly unconvincing”.
Plaintiff Submissions 
196	Mr O’Sullivan submitted that that the plaintiff’s evidence seeking to explain why he could not box, lift weights at the gym, undertake other than light housework or sleep well, each of which he attributed to his neck pain, was convincing. 
197	Mr O’Sullivan argued there was no evidence of anything more than a moderate psychological condition at play, and not one of such degree as to affect the plaintiff’s capacity for work, or that it accounts for and is the driver of his pain. 
198	Mr O’Sullivan pressed reliance on the reporting of Dr Thomas, who explained his path to reasoning of diagnosis, when he said:
There are three types of chronic pain syndromes organic in nature, one of which is nociceptive pain due to changes of arthritis. Acute pain from joint or muscle disruption also is nociceptive. Another one is neuropathic, could be centrally or peripherally. There is no evidence of this in this man's case. The third one is nociplastic, and when central sensitisation is the primary problem. This is not an uncommon situation after road trauma.' I think it is reasonable to indicate that his problems are in keeping with a nociplastic chronic pain syndrome organic in nature.
199	Mr O’Sullivan referred to the most recent treating doctor’s certificate for the plaintiff for the period 16 August to 16 November 2024, referring to a diagnosis of “chronic neck and shoulder pain” with restrictions, and a working capacity of 16 hours a week.
200	Mr O’Sullivan submitted that the outcome of the application is not of a type that can be resolved based on radiology. While an early MRI taken of the plaintiff identified some damage, in subsequent radiology, the damage was not observable, which Mr O’Sullivan pointed out had led to a number of doctors observing that radiology did not explain the plaintiff’s problems.  Mr O’Sullivan also referred to Dr Farr’s report dated 16 November 2022, which included that, “I have explained to him that the results of the scan is that he is structurally completely normal and his pain is mostly likely in the setting of central sensitisation and nociplastic changes”. 
201	Mr O’Sullivan submitted that I should prefer the opinion of the two pain specialists Dr Farr, the plaintiff’s treating doctor, and Dr Thomas in preference to Mr Menz.  
202	Mr O’Sullivan noted that in his first report dated 13 October 2022, by which time the plaintiff’s evidence was that he had tried to return to work as a landscape gardener but had suffered flare ups of neck pain, Dr Farr wrote that, “I believe Mr Jahadyar’s problem is mainly persistent pain in the setting of central sensitisation and secondary depression” Dr Farr went on to advise the plaintiff against the use of strong analgesia, including Targin. 
203	As to the plaintiff’s capacity for landscaping work, Mr O’Sullivan referred to Dr Farr’s clinical notes and recommendations that he should consider alternate work arrangements.
204	Mr O’Sullivan emphasised that Dr Farr and Dr Thomas are pain experts, and not orthopaedic surgeons, the latter of whom have expertise to comment on radiology and structural matters, but in such a case as this, where there is no apparent radiological evidence of disturbance to the cervical spine, their opinions on causation fall outside the scope of their specialist knowledge, and should not be preferred to the expert opinion of  pain specialists.  
205	Mr O’Sullivan submitted that to reject the opinion, in particular, of Dr Thomas, and to prefer the opinion of Dr Menz, would be to place undue reliance on the latter’s attribution of the plaintiff’s presentation to a mental condition, and which is outside his area of expertise, by comparison to Dr Weissman who diagnosed the plaintiff with no more than a “chronic adjustment disorder with depressed and anxious mood of mild-to-moderate intensity associated with mild post-traumatic and stress anxiety syndrome.”
206	Mr O’Sullivan referred to the further statement of Dr Weissman in his report of 7 September 2020 that:
In terms of work capacity, it is outside my area of expertise to comment about his work capacity from a physical or surgical perspective. This would be better addressed by an orthopaedic surgeon (or neurosurgeon or spinal surgeon), as well as an occupational physician and pain management specialist. 
On purely psychiatric grounds alone, notwithstanding his moderate group of accident-related psychiatric conditions and mental injuries, there is most probably no actual psychiatric incapacity for work at this stage.
207	Mr O’Sullivan submitted that Mr de la Harpe in 2021, proved prescient when he said, “In my opinion his condition was that of a soft tissue injury to the cervical spine as a consequence of his accident” and elsewhere said, “At this stage there is no likelihood of any future need of any surgery. However, there may be a necessity for maintenance-type physiotherapy or pain control as I think his injury or condition had an impact in manual labour as a landscape gardener running his own business. There is the possibility he may have chronic ongoing neck pain from this injury and it may not be possible for him to return to his pre-injury employment…”
208	In addressing the adverse consequences faced by the plaintiff as a result of the transport related injury, Mr O’Sullivan emphasised that the plaintiff was 29 years of age at the date of injury. 
209	Mr O’Sullivan submitted that despite the plaintiff being repeatedly tested in cross-examination that the extent of his pain is belied by his medication being limited to Panadol, in fact the plaintiff’s evidence included that medication for his mental wellbeing is also of assistance for his organic pain condition.  Furthermore, Mr O’Sullivan pointed out that Dr Farr had advised the plaintiff against remaining on strong medications. In any event, and as an adjunct to his pain management, Mr O’Sullivan referred to the plaintiff making use of hydrotherapy and heat packs, a TENS machine and Voltaren and of having completed a pain management program in September 2023, that the plaintiff acknowledged had been of some remedial benefit to him, although he maintained that this was not so as far as his neck pain is concerned.
210	Mr O’Sullivan submitted that based on the plaintiff’s evidence, I could accept that he had managed to return to his full time heavy physical work before the transport accident. Moreover, no doctor has expressed an opinion that the plaintiff could or should return to such work.
211	Mr O’Sullivan submitted that the plaintiff’s ability to undertake housework, and the loss of cricket and participation in boxing when taken into account with all the evidence and including pecuniary disadvantage meets the test for the grant of a  serious injury certificate. 
Analysis and Findings
212	I am satisfied that the plaintiff has proved on the balance of probabilities that he is entitled to the grant of a serious injury certificate, as a result of impairment to his cervical spine by way of an injury comprising nociplastic chronic pain syndrome that is organic in nature and that carries with it consequences in terms of pain and suffering and pecuniary disadvantage that satisfies the test of being fairly described at least as very considerable and certainly more than significant or marked.  There are a number of reasons that lead me to this finding.
213	First, I found the plaintiff gave a largely credible account of himself in the course of his evidence.  His evidence of the speed with which he said he had recovered from the effects of the first transport injury to his back, and indeed, if he did fully recover before the subject accident, gave rise to some robust cross examination by Mr Pinkstone, but I am satisfied that although the plaintiff cavilled with the proposition that his back pain resolved quickly, despite clinical notes of attendances to the effect that it did not, nonetheless, the plaintiff was resolute that he had been able to return to his full suite of fencing activities, and not just the task of estimating before he suffered the relevant transport accident following which, save for a failed effort at trying to return to it, he has been unable to return to work.  I accept his evidence on the matter.  Moreover, it is not considered medically capable that the plaintiff could do such work now or in the future.  The body of medical opinion is not that it is a mental condition that precludes a resumption of that type of previous physical work but instead a physical inability. 
214	The plaintiff’s reduced certified work capacity is 16 hours. Without addressing the reality of the plaintiff being physically able, at some indeterminate time in the future, to equip himself for other employment that is not dependent on his physical labour, such as was the foundation of his pre injury working life, I am satisfied that he has suffered, and will in all probability to continue to suffer a reduction in his earning ability.  The evidence supports a finding that he has recovered as best he will, and that his condition has stabilised.  It follows, therefore, that I am not persuaded to adopt the defendant’s submission that the evidence of financial disadvantage advanced by the plaintiff was of an uncertain and, therefore, unpersuasive character. 
215	In my judgment, and on the defendant’s submission of financial disadvantage, there are relevant differences between the circumstances in Randhawa, an authority referred to by Mr Pinkstone, although principally for the purpose of a counter balance to a purported reliance by the plaintiff on Richards v Wylie.  Unlike the trial judge in Randhawa, I do not consider the evidence of financial disadvantage that I have referred to, and the extent of medical evidence regarding it, as speculative (a finding arrived at by the trial judge in Randhawa and not disturbed on appeal). The plaintiff gave uncontradicted evidence of the failed attempts to return to the fencing work he had done before his first accident, and that he had been able to return for some time before the current accident, and his futile attempts at trying his hand at it again.  As to the absence of reference to the plaintiff’s work in his brother’s affidavit, I agree with Mr O’Sullivan, that one would not expect him to have traversed that issue. 
216	It is correct, as was submitted by the defendant, that the plaintiff’s recourse to medical attendances and treatments for his physical condition, and the medications taken to deal with such an impairment are not great, but of course, the lack of prescribed medication, or a need for ongoing medical interventions for a long term but stable condition, need not by corollary result in a finding of a lack of seriousness.  Radiologically, there is no suggestion, for example, of a need for surgery for the plaintiff, but that is not the nature of the plaintiff’s injury diagnosed by Dr Thomas, and the one preferred by me.  Thus, although respectful of the opinions of, for example, Dr Menz, and conscious of Mr Pinkstone’s submission as to his capacity to speak to matters not just orthopaedic, I regard the opinion of Dr Thomas in the circumstances of this case to be persuasive.  Moreover, the lack of strong medications taken by the plaintiff, is consistent with the opinion he received from Dr Farr against the use of same, and which advice might be thought all the more telling given the plaintiff’s age, and there being virtue in avoiding potentially decades long ongoing use of strong medications. Moreover, I do not accept that the plaintiff’s physical impairment to the cervical spine is such that he has no need for managing it, when in fact he does manage it in other ways, and he testified to a number of beneficial modalities, that have included completion of a pain management program, utilising hydrotherapy and heat packs as well as paracetamols and the prescribed medications for his psychological health, but that have assisted with his neck pain.
217	I have assessed the claimed disparity referred to by the defendant, between medical reporting, some of which was to the effect that the plaintiff had reported that his neck pain had improved, and the plaintiff’s affidavits and oral evidence to the contrary.  On this question, as with the reliance placed by the defendant on a lack of need for prescribed pain relief, I consider the evidence lends itself to a more nuanced understanding. 
218	An apparent difference in the accounting of neck pain can be seen in Dr Slesenger’s report of 9 August 2024, who wrote that the plaintiff had undertaken a pain management program and said that it was “beneficial in particular with regard to his mental health and with regard to his cervical spine symptoms. Overall he advised of 30% improvement in his neck pain…”  When cross-examined on the point, the plaintiff said he told Dr Slesenger that he had obtained improvement with his arm pain as well as with his mental health, but he did not accept the correctness of the assessment of improvement attributed to his neck.  Dr Horsley reported that the plaintiff presented with “intermittent neck pain” and of having experienced a “significant reduction in pain”, but the plaintiff said his neck pain was ongoing in the sense that it is persistent and consistent. 
219	There are other aspects to the reporting by Dr Horsley that warrant consideration. In addressing the plaintiff’s “Current Symptoms” she wrote this:
Mr Jahadyar experiences neck pain, most of the time. He experiences a sensation of ‘tension.” Then every few days, depending upon his level of activity, he experiences discomfort that can last for one to two hours. It varies on the visual analogue scale from 3 to 4 out of 10, up to 5 out of 10. At night he treats his neck symptoms with a TENS machine. When it is cold, the tension level is higher. He uses a TENS machine every night for 30 minutes. He stated that his neck pain has considerably improved since the pain group involvement. The discomfort is located at the back of the neck, radiating into the right shoulder girdle. The numbness that was previously present has resolved. It previously went down his right arm and into the middle finger. His power remains reduced on the right side. Headaches have resolved; he did experience regular headaches previously. He avoids repetitive looking down, looking up, or using a computer for a long period of time. I  note that he uses a laptop. He showed me how he uses it. He uses it with his neck forward flexed. He needs education. His walking tolerance is 30-40 minutes, he then experiences fatigue in the neck and right shoulder. His static standing tolerance is not comfortable, after 15-20 minutes. His dynamic standing tolerance is 30-40 minutes. His comfortable sitting tolerance is about 40 minutes. He did sit for nearly an hour through the interview. His driving tolerance is limited to about 30 minutes. He avoids activities that aggravate his neck including repetitive neck flexion, extension, any over-reaching, pushing or pulling of the right shoulder, above shoulder activities and static postures involving the right shoulder. He sleeps poorly. He does not nap during the day.
220	Under the heading of “Summary and Diagnosis” Dr Horsley wrote that the plaintiff had sustained a significant injury to his cervical spine and that his symptoms are likely to persist.  She addressed the need for functional restrictions because of the condition of the plaintiff’s cervical spine which she reported as follows:
Overall, the following work restrictions would be prudent, when considering his cervical spine alone: 
•	Avoidance of repetitive over reaching; 
•	Avoidance of repetitive pushing and pulling; 
•	Avoidance of static postures involving the right shoulder girdle; 
•	Avoidance of static postures involving the cervical spine, particularly static forward flexion, and static extension; 
•	When working at a computer workstation, he needs to be educated about setting his seating up appropriately, so that his neck is in a neutral position; 
•	Avoidance of using tools with a vibratory component through the right shoulder girdle; 
•	Avoidance of forceful activities involving the right shoulder girdle; 
•	Avoidance of prolonged sitting without taking a rest break; 
•	Avoidance of prolonged driving without taking a rest break. 
Currently, Mr Jahadyar’s functional tolerances include: 
•	A comfortable sitting tolerance of about 40 minutes; 
•	A comfortable driving tolerance of about 30 minutes; 
•	A dynamic standing tolerance of 30-40 minutes; 
•	A walking tolerance of 30-40 minutes; and 
•	A static standing tolerance of 15-20 minutes.
221	Dr Horsley considered that the plaintiff was permanently unfit to return to his previous role as a fencer and landscaper, because the critical physical demands of such work are beyond his capacity.  Dr Horsley also observed that the plaintiff is permanently unfit to return to his previous manual roles as a CNC machine operator and storeman for Flooring Xtra.
222	Thus, even if the accounts relied on by the defendant of a significant reduction in neck pain was accepted, as opposed to the plaintiff’s evidence contesting the accuracy of reporting that referenced the degree of reduction in pain, nonetheless, the consistency of neck pain, even if of the order of five out of ten, and the imposition of restrictions directly attributable to it, coupled with the loss of the capacity to return to work of the physical nature previously able to be performed by the plaintiff, and taking into account the loss and restrictions associated with domestic life and leisure pursuits, notably cricket and boxing, together with the body of opinion that the plaintiff’s condition is stable and permanent, all have led to my finding of seriousness both as the same is measured by way of its effects this plaintiff but also when objectively assessed. 
223	I have not treated the fact of the plaintiff’s travel to Afghanistan and Pakistan as evidence of a discretionary capacity on his part to travel for pleasure.  I am not satisfied that the account the plaintiff gave to explain what was originally intended to be a six week trip and that included the grave illness of a grandparent, and a desire to see his estranged wife and some of his children, although having some bearing on retained capacity, should be judged as reflective of a lack of pain and suffering, or of restrictions in those areas of life previously able to be fully and freely engaged in.  The plaintiff said he did not work while absent overseas, and he was dependent on family support being provided to him, both on the ground and being sent from Australia after being trapped overseas during the onset of the Covid-19 pandemic.  The plaintiff also testified to the need for medical care and attention while away and unable to return to Australia.  None of this was gainsaid.
224	It is important that I further address the argument advanced by the defendant, that the consequences relied on by the plaintiff have more to do with, and are driven by his mental state, than by an ongoing organic based pain condition affecting his cervical spine, although I do so from a slightly different perspective than I have already dealt with.
225	The defendant’s argument on the plaintiff’s mental state has been partially, but not fully resolved, by my finding and acceptance of the existence of an organic injury that has resulted in impairment to the plaintiff’s cervical spine. However, while the identification of injury is one thing, the further requirement in order to justify the grant of a serious injury certificate, is that such impairment resulting from injury must be causative of the consequences relied on, and satisfy the threshold test for seriousness. 
226	Because of the defendant’s contention that the plaintiff’s consequences are functional, and not because of a ‘physical’ cause, its submissions included that the plaintiff’s mental state may not be taken into account as part of the overall assessment of seriousness under the paragraph (a) claim, and also because the application was not separately pursued under paragraph (c) of the definition of serious injury, and therefore, the attempt on the part of the plaintiff to parachute in psychological effects under the guise of paragraph (a), offend the permissible limits explained in Richards v Wylie. 
227	In Richards v Wylie, Buchanan J A said this:
That is not to say that mental or behavioural disorders have no part to play in considering whether the requirements of paragraph (a) have been met or that physical incapacity is irrelevant in considering the applicability of paragraph (c).  Just as the physical consequences of a mental or behavioural disorder may have a bearing on the severity of the disorder, a mental or behavioural component can affect the question whether a physical injury is serious and long-term.  However, there must be existing organic or physical injury if the injury is to be judged according to the criteria found in paragraph (a) of the definition.  If physical incapacity is due to a mental or behavioural state, it is not a serious injury within the meaning of paragraph (a). In the present case there was either no current physical basis for the respondent's symptoms or, if there was a persisting soft tissue injury, it was no more than the trigger of a psychological disturbance which far outweighed the direct effects of any organic damage. The respondent did suffer physical injury in the accident that occurred on 4 March 1995.  However, a mental or behavioural disorder supervened and that disorder was responsible for the impairment of a body function suffered by the respondent.
The impairment or loss of a body function of the respondent was the consequence of a mental or behavioural disturbance or disorder, and in the words of Crockett and Southwell, JJ., it would be anomalous to regard it as falling within paragraph (a) when the disorder or disturbance itself is to be judged according to the criteria found in paragraph (c).
228	Elsewhere in Richards v Wylie, Winneke P said this:
I do not understand Crockett and Southwell, JJ., in stating the principle to which I have referred in the preceding paragraph, to have been suggesting that a mental or behavioural disturbance or disorder can never be taken into account in determining the seriousness of an impairment of body function which, in the exercise of the judge’s task under sub-paragraph (a), he has found to exist (my emphasis). If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss.  That is one of the consequences which, along with others, the Court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as “serious” (cf. Humphries v. Poljak, supra at page 140). Such a response, as I see it, would be an expected consequence of an impairment or loss of a body function of the sort to which I have referred. I do not see the comments of Charles, J.A. in Cropp v. The Transport Accident Commission, supra at page 377, and to which I have earlier referred, as going beyond the proposition which I have stated.  Thus, the “serious injury” defined by sub-paragraph (a) of sub-s.(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognize is that the mental disorder can itself constitute or be the producer of the impairment of a body function.
229	Mr Pinkstone’s submissions on the point, as I understood them, appeared to rest on one or other of two alternatives.  The primary argument was that there was no organic injury from which the plaintiff was suffering, and the consequences relied on by him were the product of a mental condition, but absent a claim having been made under paragraph (c).  The second argument was that even if the plaintiff presented with a paragraph (a) injury, the major consequences the plaintiff pointed to are the product of a mental condition that has developed as a result of a retained trauma from the motor vehicle accident, and not as a sequelae of the physical cervical spine injury from the accident.
230	Mr Pinkstone referred to evidence of the plaintiff’s psychological response of anxiety or depressed mood, as a response to the traumatic circumstances of the collision.  In support of his submission, Mr Pinkstone referred to the report of Dr Weissman dated 31 May 2023 who wrote:
I conducted a psychiatric assessment of the claimant, Mr Hazrat Jahadyar, and concluded that he is suffering from a moderate chronic Adjustment Disorder with Depressed and Anxious Mood associated with a mild chronic post-traumatic stress and anxiety syndrome and, perhaps, some symptoms and features of a Somatic Symptom Disorder, relevant to the subject transport accident itself.
231	Dr Weissman went on to say that:
I have carefully considered his capacity for work, purely from a psychiatric perspective alone. At the current time, he seems to be suffering from a moderate group of accident-related psychiatric conditions and mental injuries. However, after very careful consideration, I think that the claimant would have a full psychiatric capacity for work (suitable duties) with plenty of support, encouragement and reassurance. 
On purely psychiatric grounds alone, I believe that he would be able to recommence part-time suitable duties and gradually build up to full-time hours over, say, a three-month period.
232	Dr Weissman said that:
At the current time, he seems to be experiencing only mild post-traumatic stress and anxiety symptoms and traumatisation features, directly due to the circumstances of the subject transport accident itself.
233	Dr Weissman said:
Insight and Judgment: 
His insight and judgment were difficult to gauge and assess. He seems to have a mildly elevated responsiveness to some triggers and reminders of the accident itself. He seems to have a moderately-lowered self-esteem and confidence. There is prominent pain and symptom focus with elevated health concerns. He has a somewhat negative and pessimistic outlook.
234	Mr Pinkstone, in addition to emphasising medical opinion in support of the submission that the causative mechanism of the plaintiff’s emotional or psychological state is a trauma related condition, and not one rooted in a physical injury, relied on the plaintiff’s evidence of severe anxiety and of nightmares and phobias and sleep disruption, the latter of which, Mr Pinkstone characterised as continuing to loom large and unrelated to physical pain.
235	Dr Weissman reported having questioned the plaintiff concerning his sleep, and in his report from 31 May 2023, he wrote:
He told me that Mirtazapine helps him to fall asleep at night. He then occasionally wakes up in the middle of the night and finds it difficult to return to sleep again. I asked him what wakes him up in the middle of the night. Sometimes it is due to bad dreams about the accident, sometimes it is due to negative thoughts, worries and "stress”.
236	However, on cross-examining the plaintiff in regard to Dr Weissman’s account, the following exchange occurred: 
MR PINKSTONE: Well, I'm putting to you, Mr Jahadyar that to the extent your sleep is affected in recent times, what wakes you up at night, what gives you a bad night's sleep are the dreams, the anxiety, the nightmares, the phobias?---It is pain and also the anxiety and the psychological event of some dreams or, um, you know, so I  get pain at night too, so flare-ups.
You still get a reasonable night's sleep though, don't you?---Pardon?
Most nights you still get a reasonable night's sleep?---No, I'm struggling with that. I've talked to Tanya, my psychologist (indistinct) recently that I'm struggling. There are nights I get a good sleep, there are nights I can't.
The treatment you're seeking to improve your sleep is with your psychologist?---Pardon?
The treatment that you're seeking out to improve your sleep - - -?---Yes. 
- - - is with your psychologist?---It's not just sleep, it's other mental health issue that...
And what are they?---The anxiety, depression and yeah.
It's the anxiety and your fear of going out - - -?---The fear of going out?
- - - do you think that impacts your ability to work at the moment?---The - it's the pain and also my mental health that affects my ability to work.
237	In re-examination, the driving factors impacting the plaintiff’s sleep were  elaborated, and this exchange followed:
You were asked questions about your sleep and you said it was affected by pain?---Yes.
Where is the pain that affects your sleep?---Neck, my neck pain.
238	There are two things that I am satisfied about, concerning the role of the plaintiff’s emotional state in the determination of this application.  First, there is precious little evidence that the plaintiff’s mental health operates to impede his working capacity, or that it is precluding or limiting his capacity to engage in boxing, pursue his gym fitness of lift weights, play social cricket and perform the gamut of domestic activities.  To the degree they have been impacted, they are all substantially rooted in his cervical spine condition, due to the diagnosis I have earlier adopted as the preferred explanation for the pain he suffers.  However, the plaintiff did accept, when it was suggested to him by Mr Pinkstone, that his social anxiety, phobias, and fear of going out, affect his ability to play cricket.  There are also it seems, some exercises he is able to undertake that appear to have been part of his pain management program.  The fact of the plaintiff experiencing a degree of anxiety in going out in social circumstances, and the ongoing focus on the fact of the accident still occasioning nightmares and being a contributor to disrupted sleep, fall outside the scope of Richards v Wylie, and to be taken into consideration as part of the assessment of the claim under paragraph (a), but even when they are excluded from that equation, I remain satisfied that the plaintiff is left with a substantial organic transport related injury and that there are consequences to him from it, that satisfy the threshold test. 
239	Taking the evidence as a whole, and in light of the facts and circumstances relied on by the plaintiff that I have accepted, I am satisfied that the consequences suffered by him satisfies the test of being fairly described at least as very considerable and certainly more than significant or marked.
240	The plaintiff is entitled to the relief sought.  I will hear the parties on the form of final orders required to give effect to my decision.