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

Case No. CI-24-04070

SALMAN ZAFAR	Plaintiff	
		
v		
		
TRANSPORT ACCIDENT COMMISSION	Defendant	

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JUDGE:	HIS HONOUR JUDGE PURCELL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	17 March 2025	
DATE OF JUDGMENT:	2 June 2025	
CASE MAY BE CITED AS:	Zafar v TAC	
MEDIUM NEUTRAL CITATION:	[2025] VCC 683		

REASONS FOR JUDGMENT
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Subject:	TRANSPORT ACCIDENT	
Catchwords: 	Serious injury – spine injury – aggravation - credit
Legislation Cited:	Transport Accident Act 1986	
Cases Cited:	Petkovski v Galletti [1994] 1 VR 436; Seckold v Transport Accident Commission [2025] VSCA 18; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Taylor v Transport Accident Commission [2022] VSCA 269
Judgment:	Leave granted to commence a common law proceeding 

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms F Ryan SC with
Mr G Pierorazio 	Arnold Thomas and Becker 	
			
For the Defendant	Mr D Masel SC with
Ms A Wood	Solicitor to the Transport
Accident Commission	

HIS HONOUR:

Introduction
1	As an unverified fact, there are two types of people in this world; those who regularly attend doctors and those who do not.  
2	Dr Salman Zafar (“the plaintiff”), falls into the former category.  
3	As I shall set out, for several years before he was involved in a motor vehicle accident, the plaintiff attended health practitioners with complaints of pain and impairment to various parts of his body, including his neck and lower back.
This proceeding
4	This is a “serious injury” application brought by the plaintiff pursuant to s.93 of the Transport Accident Act 1983 (Vic) (“the Act”) in which he claimed to have suffered a serious physical injury to his spine arising out of an accident that occurred on 8 December 2022 (“the accident”).
5	In the context of pre-existing symptoms in his neck and back, the plaintiff relied upon an aggravation injury to the spine as the “serious injury”.  
6	Because of his pre-accident medical history, one of the main issues to resolve is the extent of any ‘aggravation’ injury to the plaintiff’s spine and whether that injury continues to cause impairment consequences that are “serious” in accordance with established legal principles arising from cases such as Petkovski v Galletti (“Petkovski”).
7	The case was conducted in ‘the usual way’. The parties tendered medical reports, clinical records and other documents from court books. The plaintiff’s tender included several affidavits affirmed by him, as well as an affidavit from his wife.  The plaintiff was required for cross examination and gave oral evidence.  I have considered all the tendered evidence, the transcript of the plaintiff’ oral evidence, and the parties’ submissions.  I shall refer to that material in these reasons to the extent that it is necessary to explain my decision.
8	The oral evidence, tender and parties’ submissions were completed in less than a day, suggesting that this was a straightforward ‘serious injury application’.  But, the short hearing masked a complex case. The complexity should be clear by the length of these reasons, which are much longer than I would ordinarily provide in a straightforward serious injury application.
The plaintiff’s contentions
9	First, his senior counsel acknowledged that ‘over the years’ before the accident the plaintiff had suffered an arthritic condition and pain because of a degenerative spine condition.  
10	Second, it was submitted that because of the accident, the plaintiff had suffered an injury by way of aggravation of underlying degenerative change in the cervical and lumbar spine, with radicular pain (“the injury”).  
11	Third, it was submitted that the consequences of the injury included the need for repeat cervical and lumbar surgery. 
12	Fourth, it was submitted that post-surgery the plaintiff had been left with accident and injury related impairment consequences, including ongoing radicular pain, interference for day-to-day activity, and a restriction for work that caused a loss of earnings.
13	Therefore, overall, the plaintiff submitted that the additional impairment consequences caused by the injury produced sufficient ongoing impairment consequences to meet the well-known “very considerable” test.
The defendant’s contentions
14	First, the defendant submitted that any injury from the accident was at best a soft tissue injury to the spine, that was not the cause of any additional or ongoing impairment.  
15	The defendant submitted that any accident-related injury was short term, had effectively run its course and any ongoing symptoms (including the need for surgery) were explained by reference to the progression of the underlying degenerative conditions affecting the plaintiff’s spine.
16	Second, the defendant contended that even if there was an ongoing accident-related aggravation, the plaintiff had failed to prove a “very considerable” consequence from any aggravation injury to his spine. 
17	In that regard, the defendant contended that the medico-legal opinions relied on by the plaintiff did not assist the case for the plaintiff, because the doctors had been asked and answered questions about “material contribution”, which was the wrong test based on the applicable legal principles, such as set out in Petkovski.
18	Third, the defendant raised as an issue the credit or reliability of the plaintiff.  It described him as a “sophisticated person, highly educated”, and in that context submitted that he had gone out of his way to downplay his pre-accident symptoms.  Therefore, the defendant submitted that the plaintiff’s claim that things had been all good before the accident, and all bad after, should not be accepted.  It highlighted deficiencies in the plaintiff’s evidence, including about his pre-accident medical history and his earnings before and after the accident, to bring his credit or reliability into issue.
19	Overall, the defendant contended that any accident-related injury was a short-term soft tissue injury, was not the reason the plaintiff had surgery, and his unreliability meant that he had failed to sufficiently identify what additional impairment was caused by the accident.
Issues for resolution
20	The issues for resolution are complex.
21	Based on the evidence and the parties’ contentions, the following issues arise for resolution.
22	First, what was the pre-accident condition of the plaintiff’s spine.
23	Second, what was the extent of any aggravation injury to the plaintiff’s spine because of the accident.
24	Third, does any aggravation injury continue to be productive of impairment consequences and if so, are such impairment consequences “serious” in the sense of producing a “very considerable” impairment consequence.
25	Fourth, but relevant to the previous issues, an assessment of the reliability of the evidence from the plaintiff.
The plaintiff’s background
26	The plaintiff is a now 48-year-old married man. Born and educated in Pakistan, he obtained qualification in medicine, before he migrated to the United Kingdom, where he completed his medical training and worked as a general practitioner.
27	In 2014, the plaintiff migrated to Sydney, Australia, where he continued to work as a general practitioner.  
28	The plaintiff worked as a general practitioner on a sub-contract arrangement at medical clinics in Sydney, before he moved with his family to live in Melbourne, in approximately May 2022. In Melbourne he resumed similar sub-contract employment as a general practitioner.
29	In both Sydney and Melbourne, the plaintiff consulted doctors for several medical conditions including for assessment of pain in his neck and back.  Often the plaintiff sought treatment from general practitioners at medical clinics where he worked.
30	As this is an aggravation case, it is convenient to commence by looking at the evidence about the plaintiff’s health before the accident.
The plaintiff’s affidavit evidence of pre-existing health issues
31	About any pre-accident health issues, including any symptoms in his neck and back, in his first affidavit the plaintiff said:
“In terms of my health prior to the motor vehicle accident, I had in the past been diagnosed as suffering from rheumatoid arthritis. In this regard, I had symptoms of pain in my feet, and sometimes in my hands and shoulders. I also had symptoms in my back brought on, for example, when I was bending. Having said that, however, I did not have any referred symptoms going down either my arms or down my legs. I was treated with an anti-inflammatory, Celebrex, which managed the condition. 
 I saw a rheumatologist with respect to the rheumatoid arthritis, Dr Gotis-Graham, on 9 December 2016. 
 I also saw a neurologist, Dr Hassan, with respect to the rheumatoid arthritis on 1 December 2020. 
 Just before then, I underwent a CT-scan in terms of my brain and cervico-thoracic spine on 29 November 2020. This revealed a C5/6 disc protrusion with right C6 nerve root compromise, however, as I was not suffering from any clinical symptoms in this regard, no treatment was proposed. 
 In addition, on 20 December 2020 I underwent an MRI of my lumbar spine which revealed a disc protrusion at L3/4 impinging on the right L3 nerve root in addition to a broad-based disc bulge at L4/5 although again due to the fact I was not suffering from any referred pain down my legs, no further treatment was proposed. 
 In any event, none of the above had any significant impact on either my ability to work or engage in my day to day activities both recreational and domestic.”
32	Despite swearing three affidavits, that is the extent of any useful affidavit evidence from the plaintiff about his pre-accident health.  The thrust of it was that he had in the past suffered symptoms from rheumatoid arthritis and had a CT scan of his cervical spine and an MRI scan of his lumbar spine, but was not significantly impacted by any impairment referrable to the radiology findings.
What is the objective evidence of the plaintiff’s health before the accident
33	In the context of the plaintiff’s affidavit evidence and before setting out his oral evidence, it is useful to look at the objective evidence about the plaintiff’s health before the accident.
Treatment in Sydney
34	A clinic in Sydney where the plaintiff worked and sought treatment for several health issues is ‘Doctors of Preston’ (“DOP”).  The notes of that clinic were tendered.  
35	Keeping in mind that the plaintiff migrated to Australia sometime in 2014, the first documented attendance at a medical practitioner in Australia is on 22 September 2015 at DOP, when the plaintiff presented with chest palpitations, but where the doctor recorded: “also long standing back pains.  fxh of ankylosing spondylosis”.   This is the first documented description to a doctor in Australia of any “spine” issue.
36	Next, the plaintiff consulted at DOP on 12 October 2015, who recorded: “Left shoulder pain for last 3/12, getting worse in last few days no pins or needles, no numbness, R handed hx of C4/5 disc prolapse but this pain is different”.
37	The plaintiff re-attended at DOP on 14 December 2015 with what was recorded as tingling and pins and needles in hands “ongoing for last 3-4 years at least”.
38	The plaintiff was then referred to a neurologist for specialist medical assessment for possible carpal tunnel.  
39	On 22 December 2015 the plaintiff attended Dr Bassel Hassan, consultant Neurologist, for symptoms in his upper limbs.  Dr Hassan said at that time that the plaintiff had symptoms consistent with bilateral carpal tunnel.   
40	On 25 November 2016 the plaintiff again consulted a doctor at DOP, who recorded his description of morning stiffness and joint pains in the upper and lower limbs, for which he was referred for assessment.
41	Next, on 9 December 2016, the plaintiff attended Dr Ian Gotis-Graham, Rheumatologist and Consultant Physician, for assessment of what was described by Dr Gotis-Graham as inflammatory arthritis, said to predominately involve the left shoulder and hips.  
42	The plaintiff continued to attend at DOP with descriptions of pain or impairment in several parts of his body.  The clinic’s notes include records that the plaintiff himself made, for example he created an entry on 27 June 2018  and recorded actions relating to L3/L4 and facet joint arthropathy.
43	The plaintiff continued to consult Dr Gotis-Graham through until August 2018, until there was a hiatus in consultations until he saw the plaintiff again on 25 September 2020. 
44	In a comprehensive report to the plaintiff’s solicitors dated 14 January 2025 Dr Gotis-Graham said the plaintiff returned on 25 September 2020, with worsening pain involving the left buttock region and the need for a walking stick.  He said the plaintiff had severe left plantar fasciitis and left lateral hip pain which would wake him at night and that he had been using Prednisolone 10md/daily since early 2020.
45	Following the assessment in September 2020, Dr Gotis-Graham opined that the plaintiff had psoriatic arthritis and low back pain due to an exacerbation of lumbar spine degenerative disease.
46	Shortly after returning to see Dr Gotis-Graham, on 20 September 2020 the plaintiff had unrelated surgical procedures performed by Dr Govind Krishna, General and Upper GI Surgeon.  According to the operation report, those procedures included a laparoscopic cholecystectomy (removal of the gall bladder).  
47	Dr Gotis-Graham re-assessed the plaintiff on 22 October 2022 and recorded that low back pain was a major problem.  He said he could not attribute the plaintiff’s unusual symptoms of tremors in his hands, and urinary and faecal incontinence, to the inflammatory arthritis and referred the plaintiff back to Dr Hassan.
48	The plaintiff re-attended Dr Hassan on 5 November 2020, who wrote back to Dr Gotis-Graham and said that the plaintiff had presented with “multiple neurological symptoms” that he described as “quite unusual”.   
49	Dr Hassan next reported to Dr Gotis-Graham by letter dated 1 December 2020 and said that an MRI scan had revealed “canal stenosis at C4/5 but no compressive myelopathy” and that the plaintiff was “keen to have lumbosacral spine MRI for persistent lower back pain” which Dr Hassan said he was not against although he said the plaintiff “does not have any radicular type symptoms”.
50	Dr Md Masum Alam was one of the doctors at DOP, who treated the plaintiff for back pain. In a report dated 21 February 2025 Dr Alam said he treated the plaintiff between May 2021 and May 2022 but only saw the plaintiff for back pain on one occasion on 23 July 2021, described as “some back pain” that the plaintiff “was managing well with the use of Meloxicam (Mobic) 15 mg and physiotherapy as needed”.
51	In fact, Dr Alam’s clinical note of 23 July 2021 recorded: ”back and cervical issues – managing with Mobic and physio”.
52	Dr Gotis-Graham reported back to a Dr Md Eftekharuddin at DOP on 21 July 2021 saying that over the previous four months the plaintiff: “has had constant pain in the neck and low back as well as many joints”.  Dr Gotis-Graham set out a treatment plan, including for a right C6 perineural steroid injection and steroid injections into the L4-5 and L5-S1 facet joints bilaterally.
53	The last attendance on Dr Gotis-Graham was on 21 July 2021.  The treatment and diagnosis to then was summed up by Dr Gotis-Graham in his report to the plaintiff’s solicitors, dated 14 January 2025.  He said at the last assessment the plaintiff had significant low back pain, due to degenerative disc disease involving the L3-4 and L4-5 discs as well as the L4-5 and L5-S1 facet joints, for which he had arranged steroid injections, but he felt the right L3 nerve root compression was not symptomatic.  Regarding symptoms in the neck, he said the plaintiff had symptoms of right C6 nerve root compression, for which he had organised a steroid injection, but he also felt that the C5-6 compression was not symptomatic.
54	The plaintiff proceeded to have a CT guided lumbar nerve root injection on 21 July 2021 and a CT guided cervical nerve root injection on 30 July 2021.  The reports of those procedures recorded under the heading of ‘clinical notes’ “Bilateral L3 radiculopathy”.  It is unclear if those reports refer to an actual finding of radiculopathy or an unconfirmed diagnosis as behind the need for the injections.  Overall, it appears to be the latter.
55	Shortly after having the CT guided injections, the plaintiff apparently underwent a gastric sleeve surgery that was performed by Dr Krishna.  There is no report of that surgery and no evidence about it from Dr Krishna.  The link between that surgery and any symptoms in the plaintiff’s spine, or any effect on such symptoms, is unclear.  That procedure was not referred to in the plaintiff’s affidavits.  
56	As I shall get to, in his oral evidence the plaintiff said that the main thing that made a difference to his pain during 2021-2022 was losing 35 kilos because he had the gastric sleeve and that made his “pain a lot better”.  That is uncorroborated evidence.  The plaintiff’s wife also said nothing about the gastric sleeve procedure in her affidavit.
57	Regardless, in the approximately seven years before moving to Melbourne, the plaintiff had attended general practitioners and specialists for a variety of physical symptoms or conditions, including symptoms of neck and back pain.  By July 2021 he was sufficiently symptomatic such that he had undergone CT guided injections in both the lumbar and cervical spine.   Objectively there were some complaints of referred symptoms into the upper and lower limbs, but no confirmed diagnosis of radiculopathy.
Treatment in Melbourne before the accident
58	After moving to Melbourne in May 2022 the plaintiff soon sought treatment for ongoing back pain, so perhaps the gastric sleeve procedure did not make the back pain a lot better?  
59	On 5 July 2022 the plaintiff attended as a patient with Dr Ashish Mathur at a clinic where he worked called MedicFirst Saltwater Coast.  In the notes of that consultation Dr Ashish Mathur recorded a history including of rheumatoid arthritis.  
60	Then at a consultation with Dr Mathur on 5 October 2022 the notes included a history of a cervical disc prolapse.
61	Next, the plaintiff had a telehealth consultation with Dr Mathur on 7 December 2022, where the notes recorded “chronic low back pain”.
62	As an overview of the treatment and diagnosis, in a report to the plaintiff’s solicitors dated 7 February 2025, Dr Mathur said that the plaintiff had commenced attending the Medic First Saltwater Coast Clinic from 22 July 2022.  Dr Mathur described a reported pre-existing history of rheumatoid arthritis associated chronic neck and back pain, which he understood to be well controlled with Celebrex and Prednisolone as advised by the plaintiff’s rheumatologist.  
63	But, Dr Mathur also said in his report that there were no symptoms of radicular pain prior to the accident.  I take that to be a reference to radicular pain from the lumbar spine.  His opinion about that is like Dr Gotis-Graham’s.
Pre-accident radiology
64	Before the accident, radiological investigations had been arranged, which reported changes in both the plaintiff’s cervical and lumbar spine.  But the clinical significance of those changes was uncertain for an explanation of any referred or radicular type symptoms in the upper or lower limbs.
65	For example, an MRI of the plaintiff’s lumbar spine was performed on 14 June 2018 and said to demonstrate findings of “disc desiccation with disc bulges at L3/4 and L4/.  There is a right para and extraforaminal right L3/4 annulus tear and disc protrusion with minimal contact to the right L3 nerve root”.
66	A subsequent MRI of the lumbar spine was performed on 20 December 2020 and concluded that there was a “L3-4 right para and extra foraminal annulus tear and focal disc protrusion impinging on the right L3 nerve root” and a “Minimal L-4 disc bulge without neural impingement”.
67	Then on 19 July 2021 a report of an MRI of the lumbar spine concluded that the L3-4 findings were “stable”, that there was slight progression of the left L3-4 findings but “no nerve root impingement”, “a stable low-grade left para foraminal L4-5 disc bulge without neural impingement” and facet joint arthropathy “particularly at L4-5”.
68	Next, for example, an MRI scan of the plaintiff’s cervical spine was performed on 1 October 2014 and reported a finding that there was “disc herniation at C5/C6, with associated right foraminal narrowing and potential impingement on the C6 nerve root”.
69	Then on 29 November 2020 a report of an MRI of the cervical spine concluded that there was “C5-6 paracentral and paraforaminal disc protrusion on the right side with hemicord compression and right C6 root compression” and “T7-8 annulus tear and disc protrusion with mild cord compression”.
70	Next, on 19 July 2021 a report of an MRI of the cervical spine described the previously reported radiological change at C5-6 but that there had been “some reduction in the degree of cord compression when compared to the previous study”.
71	In short, the plaintiff by 19 July 2021 had radiologically demonstrated changes at L3-4, L4/5 and C5/6, with some radiologically demonstrated evidence of ongoing C6 nerve root impingement, but at that time no reported impingement of the lumbar nerve roots, despite an earlier report of such findings.
X-ray reported 7 December 2022
72	The report of the x-ray of 7 December 2022 described multi-level low-grade disc degeneration, severe facet joint arthrosis at L4/5 and subtle grade 1 degenerative spondylolisthesis.  The radiologist suggested CT correlation, particularly if there was lower limb symptoms or radiculopathy.  
73	The report of the 7 December 2022 effectively confirmed the pre-existing changes in the lumbar spine.
74	There is an obvious limitation in drawing conclusions from the report of an x-ray, for a consideration of earlier reported CT and MRI findings. 
Conclusions from the objective evidence before the accident
75	Based on the objective evidence from DOP, Dr Hassan, Dr Gotis-Graham, Dr Mathur and the reports of radiological examinations, the plaintiff’s own affidavit evidence was incomplete and unreliable.
76	The plaintiff’s affidavit evidence cannot be considered in isolation, and I must consider the whole of the evidence.  Nevertheless, for an application brought by originating motion, his affidavit evidence is essentially his evidence in chief.  Notable is that the second and third affidavits affirmed by him did nothing to rectify the deficiencies in his first affidavit.
77	The defendant is correct to describe the plaintiff as a sophisticated witness.  This is not a situation of the unsophisticated witness where deficiencies in the affidavits can be explained away by a lack of education, or the drafting skills of lawyers, or some innocent misunderstanding.
78	For an assessment of the seriousness of an injury the reliability of the plaintiff is often crucial to the result.  In my view, that is especially so where the Court is asked to compare a situation before and after an accident for a claim based on an aggravation injury.
79	Because the plaintiff’s affidavit evidence is unreliable, the objective evidence is important.  Based on that evidence as set out, the plaintiff had long-standing back and neck pain, for which he had undergone radiological and specialist assessment, leading up to the attendance on Dr Mathur on 7 December 2022, for “chronic low back pain”.  
80	In addition, the plaintiff had at times described symptoms in both the upper and lower limbs. He had CT guided nerve injections in July 2021 and at least the cervical injections appear to have been aimed at relieving referred pain from C6.  
81	But consistent with the opinions from Dr Gotis-Graham and Dr Mathur, there is no objective evidence of any true radicular symptoms (sciatica) in the lower limbs from the pre-existing lumbar degeneration. 
82	For about 18 months before the accident, there is no objective evidence showing that the plaintiff made complaints of what could be described as ongoing neurological symptoms in the upper or lower limbs.
83	The plaintiff had ongoing pain in his neck and low back as of 7 December 2022.  The evidence supports a conclusion that the plaintiff remained symptomatic from degenerative disease affecting his spine.  Indeed, this is consistent with the way his case was presented as an aggravation case.
84	I accept the opinions from Dr Gotis-Graham.  With the advantage of treating the plaintiff for about five years, he said that before the accident the plaintiff was symptomatic in the neck, including from right C6 nerve compression, for which he had been recommended to have a nerve root injection.  Dr Gotis-Graham also said the plaintiff was symptomatic in his lumbar spine from degenerative disease but was not symptomatic because of any reported radiological changes involving the lumbar nerve roots.
85	Regardless of the cause, the plaintiff had reported chronic pain in his neck and back, with descriptions of referred pain.  At times he presented as significantly impaired, for example reference is made to him requiring a walking stick.  Even if the walking stick was needed for conditions affecting his hip or feet, the fact remains that he was then impaired. 
86	The pithy description by the plaintiff in his affidavits about his pre-accident health is unsatisfactory.  I accept the defendant’s submission that the plaintiff’s credit or reliability is a relevant consideration to the result in this proceeding.  
87	Even if the plaintiff’s credit has been impugned, I must still consider the whole of the evidence.  But because of the deficiencies in his affidavit evidence, I consider that I should be slow to accept the unverified evidence from the plaintiff. 
Spine surgery
88	Slightly out of order, but in keeping with what was revealed in the pre-accident evidence, before December 2022 there had never been a suggestion of the need for surgery to either the cervical or lumbar spine.
89	On 9 August 2023 the plaintiff underwent surgery by way of a bilateral L4-5 foraminotomy and decompression of bilateral L5 nerve roots.
90	Then on 5 December 2023 the plaintiff underwent further surgery by way of L3-L4 artificial disc replacement and anterior lumbar interbody fusion of L4-L5.
91	On 9 January 2024 the plaintiff underwent surgery by way of C5-C6 artificial disc replacement.
92	Pausing, for this proceeding the defendant submitted that the need for surgery was because of the underlying and unrelated degenerative change to the spine. 
93	Pausing again, even if the surgery was needed for any aggravation injury, the defendant further contended that the plaintiff had a good result from surgery and his impairment consequences post-surgery were less than the objective impairment consequences before the accident.
The accident
94	This brings me to the point in the narrative to return to the events of 8 December 2022 and the accident.
95	As luck would have it, the accident occurred as the plaintiff was driving home from the x-ray of his lumbar spine that had been arranged by Dr Mathur on 7 December 2022.  That fact alone highlights the issue of the identification of the relevant injury and impairment consequences caused by the accident.  
96	The accident was a rear end collision in which the plaintiff’s Audi Q7 was hit from behind by a Nissan Pulsar.  The amount of force involved in the accident, and whether such force could produce a lasting injury to the spine, is one of the subplots in this proceeding.  
97	In his first affidavit sworn 15 March 2024, the plaintiff gave a brief description of how the accident happened.  He said he was in his Audi Q7 wagon, stationary at a set of traffic lights, when he was then hit from behind by a Nissan Pulsar sedan.  He described the immediate onset of pain in both his back and neck, and the development of pain that radiated down both legs.
98	The plaintiff swore a second affidavit on 12 March 2025 which said nothing more about the accident.  Then in a third affidavit also sworn 12 March 2025 the plaintiff said that the accident occurred when he was driving his wife and son home having done some shopping but that “in addition to this trip I had also undergone an x-ray to my lumbo-sacral spine as referred by my general practitioner Dr Mathur”.
99	The plaintiff was coy in his affidavits when describing the circumstances of the accident.  He needed three bites of the ‘affidavit apple’ to acknowledge that he was driving home from a scan of his low back when the accident occurred.
100	In support of the contention that the accident involved significant force, the plaintiff tendered a bundle of photos depicting the damage caused to the rear of his Audi Q7.  The photos show damage to the left rear of the vehicle, including the rear bumper and side panel to the rear wheel arch.  In what is very much a lay assessment, the rear of the plaintiff’s car was obviously damaged, but it was not badly damaged.
101	The plaintiff gave oral evidence about the accident.  He was cross examined on the tendered photographs.  He agreed that the airbags in his vehicle did not deploy, he was able to get out of his car, exchange details with the other driver, and drive his car after the accident.
102	Amongst the evidence is a statement from the driver of the Nissan Pulsar that hit the plaintiff’s car, Wei Heng Kao (“Kao”) given on 30 April 2024.  Kao described how he had been affected by sun glare, saw the plaintiff’s vehicle at the last minute and hit it from behind.  Kao described the impact as “minor” and estimated his speed at approximately 30 kilometres per hour at the time of impact.
103	I am not sure what Kao meant by minor.  Again, as a lay assessment, hitting a vehicle from behind without any braking, or minimal braking, at a speed of about 30 kilometres per hour, is not what I consider to be minor. This was no ‘love tap’.
What is the contemporaneous evidence of symptoms after the accident?
104	The first documented attendance for treatment after the accident is an attendance on Dr Mathur on 12 December 2022.  In the note of that attendance, Dr Mathur recorded –
“MVA-8.12.2022
was driving car wearing seat belts-wife in back seat,son in front seat
car was stationary at traffic light-rear ended by another car at 6o km/hr
whiplash mechanism of injury
no impact to head/sternum
damage to car-boot ,bumper damaged
other car probable write off
now c/o neck pain with radulupoathy
worsening back pain-h/o spondylolisthesis.
refer imaging
may make TAC claim

Diagnosis:
MVA

Reason for visit:
MVA

Actions:
Imaging request printed to I-MED: MRI Ls spine and cervical spine. (back pain post MVA neck pain with radiculopathy)
Letter printed.
Letter written re. Attendance Certificate Electronic.
E-mail sent to [EMAIL ADDRESS], Subject - BPS Letter - Dr Salman Zafar.”
105	As recorded, Dr Mathur arranged an MRI of the plaintiff’s spine.
106	The plaintiff returned to the clinic on 6 January 2023, where he saw Dr Rakesh Bhaskar.  The note of that attendance reveals that he and Dr Bhaskar did not hit it off, and is set out as follows:
“Patient has come with requests which he is trying to impose. Being a doctor he is requesting referral which I dont know why it is for. He is a GP and he is trying to direct me what to do. Then patient requested if it was better for him to another doctor and left the room.”
107	Therefore, the same day the plaintiff went back to the clinic and saw Dr Firas Alhamdani, who referred him to a neurosurgeon, Mr Yagnesh Vellore, and to a chiropractor, Mikael Lindstedt.
108	Dr Alhamadani’s referral letter to Mr Vellore was mostly a reproduction of his clinical note, but it did add by way of history “worsening back pain-h/o spondylolisthesis”.
109	There is no report from the chiropractor.  Instead, the plaintiff tendered the note of attendance with Mr Lindstedt of 6 January 2023.  The note of attendance recorded a description of being hit at 60 kmph in the accident, the immediate onset of neck pain and increasing low back pain after 6 hours. 
110	There is no evidence of the plaintiff attending any doctor or health practitioner until he re-attended Dr Mathur on 9 June 2023, who recorded back pain with left sciatica and referred the plaintiff to a neurosurgeon.  For some unexplained reason, at that stage the plaintiff had not proceeded with the referral to Mr Vellore.
111	Next, the plaintiff consulted Mr Tiew Han, neurosurgeon, by telehealth on 24 July 2023. Exactly how that consultation came about is unclear as highlighted by the fact that Mr Han wrote directly back to the plaintiff as follows:
“Dear Salman
RE: Dr Salman Zafar [DOB] [ADDRESS] [MOBILE NUMBER]
Just a note about our consultation carried out via Tele health COVID19 on 24 July 2023. You mentioned your pain has deteriorated with severe left sided radiculopathy with shooting pain that keeps you awake at night. You have to use a walking stick from time to time. The pain radiates from your back down the left leg and the entire foot can become numb. Additionally you have numbness in both your hands at night. Lying flat in bed on your back can bring on pain in your neck but no radiculopathy in your arm. You do have ongoing lower back pain and pain going down the left leg at night. Your back pain is quite severe on top of the radiculopathy which is also severe. The pins and needles in the hands occur mainly at night and during the day it is not too bad. You already had a number of steroid injections performed on your lower back and the last one being 2 weeks ago. Your back pain settled for 5 hours but the radiculopathy did not. 
The whole body bone scan has shown up take in the L4/5 facet joints consistent with facet arthropathy. You have a Grade 1 spondylolisthesis on plain X-rays both inflexion and extension views. There is no appreciable radiological change on functional views with regards to the spondylolisthesis at L4/5. 
The MRI scan of the brain did not show any convincing demyelination and the MRI scan of the cervical spine has revealed a prolapsed disc at CS/6 with compression on to the C6 nerve root. This could explain your ongoing neck pain.  
The lumbar spine has revealed L4/5 canal stenosis and bilateral lateral recess stenosis with contact and compression on to the LS nerve roots bilaterally. Obviously the left side is severe enough to cause radiculopathy.
We discussed about ongoing management options. Given that you have exhausted the conservative options surgical intervention would be necessary. We first discussed about decompression alone at L4/5 on the left side but this would normally relieve the leg pain but not necessarily the back pain. To relieve the back pain you may have to consider a lumbar fusion and especially taking into account the presence of spondylolisthesis. 
Additionally you want to consider a bilateral carpal tunnel release and we decided to perform a right sided decompression first. 
You also wanted to have carpal tunnel release and lumbar spine surgery performed under the same anaesthetic but technically I think it is better to have them done separately. 
I propose surgery to the right carpal tunnel first followed by lumbar surgery a day or two later. 
You were initially happy to go ahead with decompression alone but having spoken to you further you have decided to consider an L4/5 lumbar fusion. I think in the presence of significant facet arthropathy and bilateral foraminal narrowing it is probably better to consider a fusion at this level. 
We could consider decompressing the left carpal tunnel at a later time. 
As far as work is concerned you will probably need 2 to 3 weeks away from work and possibly more if you have ongoing back pain related to the surgery which will normally settle with the passage of time. 
It will take 6 to 12 months for the bone to fuse and during that time you should avoid heavy repetitive bending and twisting to the lower back. You have decided on having surgery in early August and you are planning to take some time off from work following the surgery to recover.
Yours sincerely
DICTATED BUT NOT SIGHTED
Tiew F Han
Neurosurgeon”.
112	On 27 July 2023 Mr Han wrote to a neurologist about tests for carpal tunnel.  He wrote:
“Dear Zelko
RE: Dr Salman Zafar [DOB] [ADDRESS] [MOBILE NUMBER]
This GP who works in Point Cook has bilateral hand numbness especially at night. The little finger is probably more numb than the thumb and he claims to have weakness in the first dorsal interosseous. Initially I thought he had bilateral carpal tunnel syndrome but now he feels that he has ulnar neuropathy as well.
Two years ago he had a nerve conduction study performed in Sydney which apparently showed normal conduction. Additionally he has a CS/6 disc protrusion on the right side that could be irritating C6 nerve root. 
I suspect his problem could be peripheral nerve entrapment. Could your secretary contact him directly to arrange an appointment please be made as soon as possible.
Yours sincerely
DICTATED BUT NOT SIGHTED
Tiew F Han
Neurosurgeon”.
113	Interestingly, Mr Han was concerned about ongoing carpal tunnel, but there is no mention of that anywhere else.
114	The plaintiff then had the first lumbar surgical procedure with Mr Han on 7 August 2023.
115	Next, the plaintiff obtained a further neurosurgeon’s opinion when he attended Mr Girish Nair on 7 September 2023.
116	To the extent that an attendance with Mr Nair on 7 September 2023 can be said to be a contemporaneous description of symptoms immediately or soon after the accident, Mr Nair recorded a history that the plaintiff had suffered a whiplash type movement in his neck and jarred his back in the accident.  
117	That is the extent of any objective evidence from health practitioners that could be described as a contemporaneous description of symptoms after the accident.
Post accident radiology
118	As mentioned, after the attendance with Dr Mathur on 12 December 2022, an MRI scan of the plaintiff’s cervical and lumbar spine was arranged.  The report of the MRI is dated 22 December 2022 and was said to be indicated because of “motor vehicle collision”.  Unhelpfully for a resolution of the issues in this case, the radiologist noted that no previous scans were available for comparison.
119	The report of the 22 December 2022 MRI described the findings as –
“Findings: 
Cervical: 
The craniocervical junction appears normal. There is no evidence of myelopathy in the spinal cord down to T2.
Normal bone marrow signal within the vertebral bodies. Canal is normal in width. There is some loss of hydration involving all cervical discs. Alignment is normal. No paraspinal abnormality is seen. 
Substantial right pre- and intraforaminal disc osteophytic protrusion noted at C5/C6 causing subforaminal narrowing and compressing the dural sac including C6 root exit zone. Disc margins elsewhere are congruent with adjacent endplates and remaining foramina are sufficiently patented. Partially visualised brachial plexus satisfactory in appearances with no root avulsion.
Lumbar: 
There is normal disc height and hydration T11-L3 and disc margins are congruent with adjacent endplates. 
L3/L4: Minimal loss of hydration associated with bilateral disc bulge and hypertrophic facet joint OA. There is bilateral sub foraminal narrowing with normal-appearing exit roots.
L4/L5: Broad-based circumferential bulge and loss of hydration associated with uncovering of posterior disc from hypertrophic facet joint OA. There is severe narrowing to each subarticular recess, able to restrict transiting L5 roots, however with no foraminal involvement.
L5/S1: Minimal circumferential bulge, otherwise normal. 
SI joints: Unremarkable.
Impression:
Disc osteophytic protrusion C5/6 indenting anterior CSF, causing substantial right subforaminal narrowing and compressing C6 root exit zone. 
Circumferential protrusions and loss of hydration L3 and distal associated with hypertrophic facet joint OA, in particular L4/L5. Findings able to explain bilateral L5 restriction. 
No evidence of myelopathy at any level. Overall, no definite trauma sequelae.”
120	Next, on 25 June 2023 the plaintiff had a further MRI of his lumbar spine.  The clinical indication for that MRI was said to be “severe sciatica”.  The report described degenerative changes most severe at L4/5, but also impingement of the transiting L5 nerve roots particularly on the right side, disc bulging at the L3/4 levels, with definite impingement of the right L3 nerve root.
121	A whole-body scan with SPEC/CT lumbar spine region was performed on 7 July 2023.  It concluded that “intense spondylosis at the L4/5 facet joints bilaterally as a likely cause of backache and sciatica”.
122	The plaintiff next had an MRI of his brain and whole body.  The report of that MRI dated 22 July 2023 recorded a history of numbness in both legs and left arm.  It compared the MRI report of 25 June 2023 and concluded about the lumbar spine that there was multi-level degenerative disc disease, most severe at L4/5 with bilateral impingement of the L5 nerve roots, contact with L3 nerve roots and extraforaminal nerve roots on the left at L4 and L5.
123	The plaintiff has had more scans of his spine since the MRI of 22 July 2023.  Some of the conclusions in those scans are not much help for a consideration of the injury because they refer to the changes from the first lumbar surgery.  But on 14 November 2023 an MRI report described moderate to severe right C5/6 neural exit foraminal stenosis.
124	There is no evidence from a specialist radiologist as to the significance of what was seen on the scans before and after the accident.  
125	I shall have more to say about the radiology in the context of the relevant medical evidence.  But broadly, that evidence supports the conclusion that sciatica became a significant feature of the plaintiff’s presentation when undergoing scans within a few weeks of the accident.
The evidence from Mr Kevin Siu (consultant neurosurgeon)
126	Returning to the issue of injury caused by the accident, that arises not only because of the evidence of pre-accident treatment and radiology, but also because of medico-legal opinions obtained by the defendant from Mr Kevin Siu, consultant neurosurgeon.
127	As a broad summary, Mr Siu opined that the accident could not have caused any significant or ongoing injury to the plaintiff’s spine.  Again, as a summary, Mr Siu’s opinion was formed in part because of his understanding of the mechanics or forces involved in the accident.
128	Mr Siu examined the plaintiff at the request of the defendant and provided a report dated 2 December 2024.  As he noted, for that consultation he was provided with nearly 300 pages of material, which included the reports of radiology before and after the accident, and most (if not all) of the objective evidence I have set out so far.  
129	Mr Siu commented on the pre-accident radiology and evidence from Dr Hassan and Dr Gotis-Graham. He described his conclusions from the MRI scans in 2014, 2018, 2020 and 2021 and said that demonstrated evidence of age-related degenerative changes and that there had been some progression of the disc protrusion on the right.
130	Mr Siu then set out the evidence in the post-accident radiology.  He said in the report that “You will notice that I dwell extensively on the imaging reports because I have difficulties identifying the documentation of neurological findings, apart from the letter of the neurologist in 2022”.
131	Pausing yet again, the reference to the neurologist can only be to Dr Hassan, who treated the plaintiff well before the accident.  In his report, Mr Siu described in detail a letter from Dr Hassan to Dr Gotis-Graham dated 5 November 2022.  He said that letter “was important in that it is the only letter with documentation of neurological finding” and “Thus we have good documentation by a consultant neurologist of abnormal neurological findings”.
132	There is no letter from Dr Hassan dated 5 November 2022 and so Dr Siu’s reference to that is incorrect.  On this point, neither party addressed the Court.  It may be that this is an example of a simple typographical error, and that Mr Siu intended to refer to Dr Hassan’s letter of 5 November 2020.  That would be consistent with Mr Siu’s comments later in the report where he said that Dr Hassan documented neurological findings “two years prior to the motor vehicle accident”.  But obviously if Mr Siu had proceeded on an assumption of neurological signs being present on 5 November 2022, only a month before the accident, that would be a significant error, as there is no such evidence.
133	Mr Siu proceeded to discuss some of the post-accident radiology, but did not specifically discuss how it compared to the pre-accident radiology.  The only inference from his opinions is he did not think it supported any permanent injury from the accident, but by the same token, he did not expressly say that.
134	But I am concerned whether Mr Siu’s opinions about the radiology may have been influenced by the erroneous attribution of 5 November 2022 to the letter of Dr Hassan.
135	In any event, Mr Siu said the plaintiff complained of back pain and neck pain after the accident, with back pain more prominent.  He said we were seeing the ongoing manifestation of progressive age-related degenerative condition of the lumbar and cervical spine.
136	Mr Siu then said that “one may argue that there was some aggravation of a pre-existing condition as far as the neck is concerned” but “he was driving a very big SUV (Audi Q7). The injury, if any would be trivial”. I believe most of his clinical features are from degenerative change”.  
137	About the lumbar spine, Mr Siu said “a rear end collision is extremely unlikely to aggravate pre-existing spondylosis.  When seated in a bucket type seat secured by a seatbelt there is no axial loading and there would be minimal, if any, stress on the lumbar spine following a rear end collision.  Again we are seeing the manifestations of age related degenerative conditions”.
138	Pausing, whether Mr Siu has sufficient expertise to opine that because a person is in a big SUV only a trivial neck injury could result is unclear.  It seems likely to me that the size of a vehicle is only one of the factors relevant to whether injury can be caused by an accident.  Other factors including the health of the person involved or even the force involved, would also seem to be relevant.
139	Mr Siu then described his understanding of the plaintiff’s symptoms post-surgery.  He opined that the plaintiff had relief from symptoms from the surgery.  He said there were no restrictions for daily activity and no interference for work, although he noted the plaintiff was then working “28 hours per week”.
140	Next, in a second report dated 17 December 2024, Mr Siu was asked to consider some further reports for his comment.  Having done so, he said he did not consider it necessary to change his opinion.  He repeated that: “I believe that a patient sitting in a big car, well protected by a bucket seat and secured in a lap/sash seat belt there would be very little axial load”.
141	Then in a third report dated 7 January 2025, Mr Siu was provided with the reports from Mr Aliashkevich and Mr Vellore for comment.  He provided a precis of their evidence and repeated his own opinion that the plaintiff was in a big car and the impact was not significant.
142	Mr Siu then said that “Absent the motor vehicle accident, it is highly likely as there were progressive age-related degenerative changes, he would require surgical intervention because of nerve root compression”.
143	In case there was any doubt about his opinion, Mr Siu, his third report, asked that he be allowed to repeat himself and said: “I firmly believe that a driver or passenger secured by a lap/sash seatbelt, as far as the lumbar spine is concerned, is quite well protected.  There is no axial load”.
144	Mr Siu said he had been the head of the neurosurgery department at The Alfred Hospital between 1988 to 2000, where they managed a large number of severely injured patients, a large proportion of which were from motor vehicle accidents, and he could not recall seeing an acute lumbar disc prolapse or acute aggravation.
145	He then said if there had been impact to the cervical spine in the accident, he would have expected the plaintiff to seek medical attention.  Because he understood the plaintiff did not seek medical attention until seeing a chiropractor some days later, he considered any cervical spine injury was transient and a trivial exacerbation of a pre-existing condition.
146	Mr Siu then returned to a brief discussion of the evidence from Dr Hassan, including a letter from Dr Hassan to the treating neurologist dated 1 December 2022, as support for his opinions.  But there is no letter from Dr Hassan dated 1 December 2022.  The letter from him to Dr Gotis-Graham is dated 1 December 2020, which I have earlier set out.  In that letter Dr Hassan said specifically there was canal stenosis at C4/5 but no compressive myelopathy and about the lumbar spine, there were no radicular symptoms and he “would not advocate any invasive therapies to his lumbar spine”.
147	Again, the lawyers did not address the Court on the error in Dr Siu’s report about the date of the letter from Dr Hassan.  It may be a simple typo – after all in his third report he also erroneously referred to the date of his first report as 2 December 2022.  Who knows?  But there is a real risk that the mistakes about the dates infected Mr Siu’s opinions.
148	In that report, Mr Siu commented on some of the other medical opinions in this case, which I shall get to.  He said the opinions in those reports were more based on intuition rather than a consideration of the mechanism of injury.
149	Finally, in a fourth report dated 14 February 2025, Mr Siu was asked for a supplementary report, seemingly to comment on the report of Dr Gotis-Graham dated 14 January 2025.  Dr Siu commenced the report by stating that “I wish to emphasise that Mr Zafar has pre-existing severe cervical spondylosis with a well documented history and imaging of nerve compression”.  He described the report from Dr Gotis-Graham as helpful and went on to say that the accident was incidental, and the causation was pre-existing cervical and lumbar spondylosis.
Summary of Mr Siu’s evidence
150	Mr Siu obviously has considerable expertise and provided his opinions in a clear and forcible way. 
151	But there is confusion in his reports by the erroneous attribution to examination findings and opinions expressed by Dr Hassan as being provided in late 2022, when they were provided in late 2020.  
152	At the very least, the lack of care in Mr Siu’s reports when recording the evidence from Dr Hassan is a relevant fact for a consideration of the weight to attach to his evidence on such an important issue, namely the existence of neurological symptoms before the accident for a consideration of causation.
153	Next, his opinions were clearly based on an assumption that there was little or no force to the plaintiff’s spine seemingly because the plaintiff was in a bucket seat, wearing a seat belt and in a big SUV.  Whether that is consistent with the damage to the plaintiff’s car as shown in the photos is debatable.
154	Whatever the actual force, Mr Siu opined that it was unlikely to cause aggravation of the lumbar spine and might have caused a temporary flare up in the cervical spine. He said that the progression of the underlying condition was the explanation for the surgical procedures.
155	But there is no path of reasoning to explain how the degenerative spine condition progressed to require the first of several surgical procedures within about eight months of the accident. Mr Siu emphasised the findings by Dr Hassan as evidence of neurological signs.  But Dr Hassan said specifically about the lumbar spine that there were no referred symptoms.  Also, there was no neurosurgical referral or contemplation of surgery before the accident.  
156	In that regard, it is trite to suggest that Mr Siu’s opinion may be based on intuition rather than evidence.
157	The fact that sciatica was not present before the accident but was a feature when the plaintiff attended for the MRI on 22 December 2022, seems to have been dismissed by Mr Siu as evidence of an injury caused by the accident, because of his opinion about the mechanics of the accident and his opinion about neurological signs being present before the accident.
158	I cannot glean from Mr Siu’s report a path of reasoning how the relatively contemporaneous reporting of sciatica and the relatively contemporaneous need for repeat spinal surgery cannot relate to the accident.
159	The whole of the evidence from Mr Siu leads to a conclusion that he started from a position that the accident could not have caused an aggravation injury and then worked back from there to maintain that position.
160	As such, I do not accept his opinions that the accident could not have caused an aggravation injury.
161	The rejection of Mr Siu’s opinions about causation is regrettably not the end of the matter.  Because some of the plaintiff’s evidence was unreliable, and given the evidence of symptoms before the accident, it is necessary to look at the whole of the evidence to decide the issues for determination.
162	Also, just because I do not accept Mr Siu’s opinion about causation, does not mean that I cannot accept his evidence about the current level of impairment consequences.
The balance of the medical evidence
163	It is not enough for the plaintiff to establish a serious aggravation injury if the accident only caused some further impairment to his spine.  
164	As the defendant correctly contended, the aggravation must produce sufficient additional impairment to meet the “serious injury” test.  This requires a consideration of all the evidence of impairment before and after the accident.
165	Before fully setting out the plaintiff’s affidavit and oral evidence, it is convenient to look at what he told treating and medico-legal doctors as to his situation before and after the accident, for a consideration of whether there was an aggravation injury and whether such an injury contributed to the need for surgery and any ongoing impairment consequences.
Treaters
Mr Tiew Han (consultant neurosurgeon)
166	Returning to the evidence from Mr Tiew Han, he performed the first operation to the plaintiff’s lumbar spine in August 2023.
167	To the extent that Mr Han obtained a history of the plaintiff’s pre-accident health, in a report dated 4 July 2023 written directly to the plaintiff, Mr Han said the plaintiff had a history of rheumatoid arthritis, essentially managed with anti-inflammatory medications and essentially was well controlled.
168	Next, in a letter dated 24 August 2023, Mr Han said the plaintiff had consulted with him on 30 June and 24 July 2023 and presented with a history of lower back pain and bilateral sciatica.  Mr Han then said the plaintiff claimed that he was involved in a motor vehicle accident on 8 December 2022 and the pain deteriorated markedly.  Mr Han said the plaintiff “believed that the accident had contributed to significant deterioration of his lower back pain”.
169	Pausing, this is really the crux of the aggravation issue in this proceeding.  Did the accident cause a significant deterioration of lower back or neck pain and the development of referred symptoms into the upper or lower limbs?  The plaintiff’s belief is obviously not determinative of that issue.
170	Returning to the evidence from Mr Han, in a report to the plaintiff’s solicitors dated 11 December 2024, Mr Han concluded that the accident was a significant contributing factor to the plaintiff's injury.  Mr Han said the plaintiff’s “symptoms deteriorated fairly rapidly following the motor vehicle accident to an extent whereby he eventually required surgical treatment”.
171	Again, it seems to me that the factual question whether the plaintiff’s symptoms deteriorated rapidly after the accident also goes to the crux of the aggravation issue.
Mr Ales Aliashkevich (neurosurgeon and spine surgeon)
172	In October 2023 the plaintiff was referred by Dr Mathur to Dr Ales Aliashkevich, neurosurgeon and spine surgeon. 
173	In a letter to Dr Mathur dated 30 October 2023, Dr Aliashkevich said the plaintiff “presented with a long history of chronic neck and back problems.  He recalls having cervical facet joint injections in 2022.  He was involved in a transport accident in December 2022 and complained about chronic left radicular leg pain”.
174	Next, in a comprehensive report to the plaintiff’s solicitors dated 11 October 2024, Dr Aliashkevich said the plaintiff provided a long history of complex chronic neck and back problems, as outlined in his affidavit affirmed on 15 March 2024.  For the purpose of providing his report, Dr Aliashkevich was provided with a range of medical reports for consideration.  He then said the plaintiff suffered “complex chronic multifactorial neck and lower back problems” and that “he had pre-existing cervical and lumbar spondylosis, confirmed on spinal MRI scans in 2020.  His situation was complicated by inflammatory arthritis” and “it is very difficult to assess the transport accident in December 2022 and make reliable conclusions about its contribution to your client’s chronic pain”.
175	Mr Aliashkevich provided a further detailed report dated 18 February 2025.  For the purpose of that report, Mr Aliashkevich was provided with further material and instructions.  Having considered that material, he maintained his opinion that assessing the causation of the plaintiff’s complex chronic cervical and lumbar spine problems was challenging.  
176	Dr Aliashkevich then said “it was also very difficult to assess the transport accident in December 2022 and make reliable conclusions about its contribution to your client’s chronic pain”.  
177	However, Dr Aliashkevich went on to say “I still believe it would be plausible to assume that on the balance of probability and unless there is evidence to the contrary, the transport accident around 8 December 2022 was a materially contributing factor to the exacerbation of a pre-existing degenerative cervical and lumbar spine condition to a degree greater than minimal”.
Mr Yagnesh Vellore (neurosurgeon and spine surgeon) 
178	Mr Yagnesh Vellore is a neurosurgeon and spine surgeon who also treated the plaintiff. 
179	Mr Vellore provided a report to the plaintiff’s solicitors dated 6 March 2024.  Mr Vellore recorded that by the time the plaintiff first consulted him, he had already undergone an L4-5 decompression surgery in August 2023 with Mr Han.  
180	In his report, Mr Vellore set out how in December 2023, he performed an L3-4 artificial disc replacement and L4-5 anterior lumbar interbody fusion.
181	Subsequently, in January 2024, Mr Vellore performed a C5-6 artificial disc replacement.  
182	Regarding the issue of the plaintiff’s pre-accident health, in response to a specific question, Mr Vellore said that:
”On the Balance of Probabilities
 Dr. Zafar's transport accident on the 8th of December 2022 was a significant contributing factor to the spinal injury that he has sustained, specifically by way of aggravation. Dr. Zafar's previous history has included review by a neurologist as well as a rheumatologist in 2018 and 2020, at which stage he had mild disc bulge at the L4-5 level without nerve root compression. A letter from Dr. Basil Hassan, neurologist, dated 1st December 2020, clearly indicates normal signal of cervicothoracic cord without any changes at the C5-6 level. Therefore, on the balance of probabilities, Dr. Zafar's accident has caused significant aggravation of cervical spondylosis and lumbar spondylosis.”
183	Next, in a comprehensive report to the plaintiff’s solicitors dated 21 February 2025, Mr Vellore acknowledged the plaintiff had a history of back pain and at age 37 had been diagnosed with rheumatoid arthritis.  
184	Mr Vellore then reviewed the evidence from Dr Hassan and Dr Gotis-Graham, together with relevant clinical records.  He said after carefully reading all that material that:
“Lumbar Spine
 I have carefully read the enclosed clinical records of Dr. Hassan, Engelburn Medical and Dental Doctors at Preston, Dr. Gotis-Graham, Dr. Mathur and the enclosed diagnostic materials. After carefully reading all of the attached materials, I remain of the opinion expressed in my previous report that as a result of his transport accident on 8 December 2022, Dr. Zafar suffered exacerbation of L3-4 and L4-5 disc disease specifically L3-4 disc bulging moderate to severe facet and ligament hypertrophy with right foraminal narrowing with impingement of right L3 nerve root, as well as L4-L5 disc bulging superimposed anterolisthesis with severe facet and ligament hypertrophy lateral recess stenosis on both sides with transiting L5 impingement, particularly on the left with foraminal narrowing in contact of L4 nerve root and lumbar disc degeneration L4-L5 with nerve root compression and grade 1 spondylolisthesis.
 I am of the view that on the balance of probabilities Dr. Zafar's transport accident as described therein represents a mechanism of injury consistent with the causation of the lumbar spine injury diagnosed in question (a).
 I am of the view that Dr. Zafar's transport accident on 8th December 2022 was a significant contributing factor to his coming to lumbar spine surgery at my hand on 5th December 2023 in the form of L3-4 artificial disc replacement and L4-5 anterior lumbar interbody fusion.”
		And that:
“Cervical Spine
 I have carefully read the enclosed clinical records of Dr. Hassan, Engelburn Medical and Dental Doctors at Preston, Dr. Gotis-Graham, Dr. Mathur and the enclosed diagnostic materials. After carefully reading all of the attached materials, I remain of the opinion expressed in my previous report that as a result of his transport accident on 8 December 2022, Dr. Zafar suffered C6 radiculopthy and C5-6 disc prolapse with neuroforaminal stenosis on the right side.
 I am of the view that on the balance of probabilities Dr. Zafar's transport accident as described therein represents a mechanism of injury consistent with the causation of the cervical spine injury diagnosed in question (e).
 I am of the view that Dr. Zafar's transport accident on 8th December 2022 was a significant contributing factor to his coming to cervical spine surgery at my hand on 9th December 2024 in the form of C5-6 artificial disc replacement.
 It is important to note that the surgical opinion of Dr. Ales Aliaskevich on the 30th of October, 2023, also reflected a similar recommendation in the form of C5-6 disc replacement.”
Mr Girish Nair (neurosurgeon and spinal surgeon)
185	Next, completing the quadruple of evidence from treating neurosurgeons, is the evidence from Mr Girish Nair.  
186	Mr Nair did not obtain any history relevant to the plaintiff’s pre-accident health.  His evidence does not contain any analysis that assist to understand what, if any, aggravation injury was suffered by the plaintiff because of the accident.  Therefore, I do not attach much weight to his evidence.
Dr Ashish Mathur (general practitioner)
187	There is not a lot of formal evidence from Dr Mathur.  I have already set most of it out.  On 12 December 2022 he provided the plaintiff with certification of attending the clinic for neck and back pain post the accident.
188	Then on 21 July 2023 he wrote to the defendant and said the plaintiff had the accident and had “worsening pain-b/l sciatica”.
189	He then reported to the plaintiff’s solicitors on 7 February 2025 and said there was no radicular pain before the accident, but that the plaintiff complained of neck and back pain after the accident.
190	In that report, regarding ongoing consequences, he said that since surgery the plaintiff’s condition had improved.  He said the plaintiff could ambulate normally, could only sit or stand normally for 10 minutes at a time, and his capacity for work was between 24-28 hours per week (reduced from 35 hours per week).
The medico-legal evidence
Plaintiff’s medico-legal reports
Dr Hazem Akil (consultant neurosurgeon)
191	Dr Hazem Akil is a consultant neurosurgeon who initially provided a joint report and then a subsequent supplementary report to the plaintiff’s solicitors.
192	In his first report dated 7 March 2024, Dr Akil obtained a history that because of the accident, the plaintiff “immediately felt neck and back pain but he managed to drive home as he said to me that his house was very close by”.
193	In addition, Dr Akil obtained history that:
“He noted that his neck pain and lower back pain that did exist before increased in intensity. However, what he noticed are new symptoms of radiation of the pain towards both legs and radiation of the pain towards the right arm.”
194	Dr Akil then obtained a history of the referral to the various neurosurgeons and the surgery.
195	Regarding the second lumbar surgery, Dr Akil obtained a history that the plaintiff noted significant improvement in the intensity of his pain after that surgery.  Further, regarding the cervical surgery, Dr Akil obtained a history that the plaintiff also felt significant improvement in the intensity of his neck pain, as well as a complete resolution of right arm pain, after that surgery.
196	Regarding ongoing symptoms, Dr Akil took a history that:
“Current Symptoms
Dr Zafar continues to have the following symptoms;
1.	He continues to have elements of neck pain that comes particularly after sitting or standing longer than five minutes.  The pain can be associated with paraesthesia in both legs but it is way better than before surgery.  He told me that the intensity of his lower back pain while it is present after prolonged sitting but it is way better than before surgery.
2.	He however continues to have some element of neck pain but described as minimal.  He reports complete resolution of his right arm pain.”
197	Regarding past medical history, Dr Akil said:
“As you have summarised in your letter of instructions and as my review of the notes revealed, he did have symptoms compatible with the carpal tunnel syndrome due to bilateral hand paraesthesia in 2015 and he did have a review by a neurologist in Sydney for generalised neurological symptoms and polyarthritis in November 2020.  He had investigations for his neck and his lumbar spine although the entry from his general practitioner clearly indicated that the main symptoms are lower back pain and no radicular extension of the pain towards his legs or any extension of the pain towards his arms.”
198	Dr Akil then conducted a physical examination and reviewed the available radiology, including radiology taken after the accident.  He set that evidence out as follows:
“Investigations
 I have reviewed the following investigations;
 A nerve conduction study done prior to the accident in December 2015 concluded as normal.
 A bone scan in December 2016 did show active polyneuropathy particularly in the left sacroiliac joint, left AC joint, first MTP joint.
 I note that an MRI scan of his lumbar spine in June 2018 prior to the accident indicated the presence of disc degeneration at L3/4 and L4/5 with an L3/4 annular tear and a facet joint arthropathy at L3/4 and L4/5.
 Repeat nerve conduction study in November 2020 also concluded a possible right ulnar neuropathy at the elbow. An MRI scan of the brain and the spinal cord in November 2020 did show the presence of a C5/6 paracentral and para-foraminal disc protrusion with a hemicord compression and a C6 root compression.
 An MRI scan of his lumbar spine also prior to the accident in December 2020 concluded the presence of an L3/4 degeneration and a minimal L4/5 disc bulge.
 An x-ray of his lumbar spine in December 2022 showed severe facet joint arthropathy at the level of L4/5.
 An MRI scan of his cervical lumbar spine after the accident on 22 December 2022 revealed the presence of a C5/6 disc protrusion causing an impingement on the right C6 nerve root and in the lumbar spine, there is loss of hydration at the level of L3/4 disc with facet joint osteoarthritis and particularly at L4/5.
 An MRI scan of his left hip and lumbar spine in June 2023 confirmed the presence of a CAM deformity and anterolateral labral tear but with regard to the lumbar spine, it does show degenerative changes significant at L4/5 where there is an anterolisthesis and a disc bulge.
 MRI scan and x-ray of his lumbosacral spine in July 2023 showed a spondylolisthesis of L4/5 of about 8 mm with mild changes indicating a possible instability.
 Whole body bone scan with SPECT views of the lumbar region in July 2023 showed spondylosis at L4/5 facet joint.
 MRI scan of his lumbar spine in August 2023 showed right L3/4 foraminal and extraforaminal disc protrusion displacing and irritating the exiting right L3 nerve root.
 An MRI scan of the cervical spine in November 2023 as well as the number did conclude the presence of a severe right C5/6 neuroforaminal stenosis due to posterior disc osteophyte complex and a mild C7-T1 foraminal stenosis as well as grade 1 anterolisthesis at L4/5 with advanced bilateral facet joint arthropathy.
 CT scan of his lumbar spine in December 2023 showed adequate positioning of the implant.”
199	Regarding a diagnosis, Dr Akil said:
“Diagnosis
 He has aggravation of cervical spondylosis with right C6 radiculopathy and aggravation of lumbar spondylosis. In my opinion, the accident aggravated the pre-existing spondylosis.
 I note from his documents and from what he said to me that although he had neck pain and lower back pain prior to the accident, but there were no clear radicular symptoms which he had clearly after the accident.”
200	Dr Akil then set his opinion about work capacity, the impact of the injuries on the plaintiff before answering various questions.  He described the accident as a significant contributing factor to his diagnosis of injury and the need for surgery.
201	Dr Akil then reported to the plaintiff’s solicitors on 13 March 2025.  The supplementary report was prepared after a request that he consider various documents.  He then said as follows:
“Please find my answer to your queries:
 Lumbar spine 
(a) Please carefully read the enclosed clinical records of Dr Hassan, Ingleburn Medical and Dental, Doctors at Preston, Dr Graham, Dr Mathur, and the enclosed diagnostic materials. Do you remain of the opinion expressed in your previous report that as a result of his transport accident on 8 December 2022 our client suffered an aggravation of lumbar spondylosis. 
i. Please detail your answer with reference to the abovementioned enclosures were necessary. 
I remain of the opinion expressed in my previous report that Dr Salman Zafar had an aggravation of a pre existing lumbar spondylosis. I took into consideration the past medical history and the detailed clinical files as well as the report by Dr Kevin Siu. I am in disagreement with Dr Kevin Siu. The presence of lumbar spondylosis will progress during age but that does not necessarily mean that the symptoms progress. The mechanism of injury is also not, as Dr Kevin Siu described in his report, 'trivial'. In my opinion, the mechanism of injury is significant enough to cause further aggravation of the lumbar spondylosis resulting in back pain requiring intervention. 
(b) Please carefully read the ‘Other materials’ enclosed herewith. Are you of the view that, on the balance of probabilities, our client’s transport accident as described therein represents a mechanism of injury consistent with the causation of any lumbar spine injury diagnosed in question 
I have indicated in my previous report that the transport accident, as described, represents a significant mechanism of injury that is consistent with an injury to the lumbar spine. 
(c) Do you remain of the view that our client’s transport accident on 8 December 2022 was a significant contributing factor* to 
i. His coming to lumbar spine surgery on 9 August 2023 at the hand of Mr Han in the form of a L4 / 5 bilateral lumbar laminectomy. 
ii. His coming to cervical spine surgery on 5 December 2023 at the hand of Mr. Vellore in the form of an L3-L4 artificial disc replacement and L4-L5 anterior lumbar interbody fusion. 
iii. Please detail your answers with reference to the abovementioned enclosures were necessary 
I remain of the opinion that the accident on December 8, 2022, was a significant contributing factor, although not the only factor that resulted in the need for two surgeries, with the first one on August 9, 2023, in the form of L4/5 bilateral lumbar laminectomy, and the second one on December 5, 2023, in the form of L3/4 artificial disc placement and L4/5 anterior lumbar interbody fusion.
(d) Noting our client’s current age of 46, life expectancy of 84, prior L4 / L5 bilateral lumbar laminectomy on 9 August 2023, and prior L3 / 4 and artificial disc replacement and L4/ L5 anterior lumbar interbody fusion on 5 December 2023: 
i. What is our client’s prognosis as to the likelihood of further surgery at level L3 / 4 and L4 / 5 and / or at spinal levels adjacent to L3 / 4 and L4 / 5. 
ii. If our client is likely to come to further surgery at level L3 / 4 and L4 / 5 and / or at spinal levels adjacent to L3 / 4 and L4 / 5: 
a. What the time frame is in respect of such further surgery. 
b. On the balance of probabilities, is our client’s transport accident on 8 December 2022 likely to be a significant contributing factor* in respect to our client coming to such further surgery (including coming to such surgery earlier than may otherwise have been required but for his transport accident). 
c. Please detail your answer with reference to the abovementioned enclosures were necessary. 
I am of the opinion that the prognosis of further surgery is guarded. He might require surgical intervention in the long term for the L5/S1 level, given that the L4/5 has been fused. To determine the time frame for that, it may not happen, but there is a possibility that the requirement of further surgery or extension of fusion below the level of L4/5 is required. The further surgery, if needed in the future, is to deal with the consequences of a surgery that is needed to treat symptoms significantly contributed by the motor vehicle accident on December 8, 2022. 
(e) Any further comments you wish to make, including with respect to the opinions expressed by Dr. Siu regarding our client’s transport accident and lumbar spine injury in his enclosed reported dated 2 December 2024, 17 December 2024, and 7 January 2025. 
I have made my main comments regarding Dr Kevin Siu's report in my answer to question A. 
Cervical Spine 
(f) Please carefully read the enclosed clinical records of Dr Hassan, Ingleburn Medical and Dental, Doctors at Preston, Dr Graham, Dr Mathur, and the enclosed diagnostic materials. Do you remain of the opinion expressed in your previous report that as a result of his transport accident on 8 December 2022 our client suffered an aggravation of cervical spondylosis with right C6 radiculopathy. 
i. Please detail your answer with reference to the abovementioned enclosures were necessary. 
I remain of the opinion expressed in my previous medical legal report that the transport accident on December 8, 2022, aggravated a pre-existing condition, further resulting in the need for surgery to improve right C6 radiculopathy. 
(g) Please carefully read the ‘Other materials’ enclosed herewith. Are you of the view that, on the balance of probabilities, our client’s transport accident as described therein represents a mechanism of injury consistent with the causation of any cervical spine injury diagnosed in question 
The mechanism of the injury is certainly consistent with the causation of aggravation of a further cervical spinal injury.
(h) Do you remain of the view that our client’s transport accident on 8 December 2022 was a significant contributing factor* to 
i. His coming to cervical spine surgery on 9 January 2024 at the hand of Mr Vellore in the form of C5- C6 artificial disc replacement on 9 January 2024. 
ii. Please detail your answer with reference to the abovementioned enclosures were necessary. 
The accident on December 8, 2022, is a significant contributing factor to the need to perform a C5/6 artificial disc replacement on January 9, 2024, and I stand by this opinion.
(i) Noting our client’s current age of 46, life expectancy of 84, and prior C5-C6 artificial disc replacement on 9 January 2024: 
i. What is our client’s prognosis as to the likelihood of further surgery at level C5-C6 and / or at spinal levels adjacent to C5-C6. 
ii. If our client is likely to come to further surgery at level C5-C6 and / or at spinal levels adjacent to C5-C6: 
a. What the time frame is in respect of such further surgery. 
b. On the balance of probabilities, is our client’s transport accident on 8 December 2022 likely to be a significant contributing factor* in respect to our client coming to such further surgery (including coming to such surgery earlier than may otherwise have been required but for his transport accident). 
c. Please detail your answer with reference to the abovementioned enclosures were necessary. 
The purpose of a disc replacement at C5/6 is to reduce the likelihood of the requirement of further surgical intervention to the adjacent level in the future. This does not guarantee it, but it does certainly reduce it, and I am not anticipating the need of further surgical intervention on his cervical spine in the long run. 
(j) Any further comments you wish to make, including with respect to the opinions expressed by Dr. Siu regarding our client’s transport accident and cervical spine injury in his enclosed reported dated 2 December 2024, 17 December 2024, and 7 January 2025. 
I disagree with the conclusion of Dr Kevin Siu that the accident did not contribute at all to his cervical spine injury and the need for surgery. I agree that there was a pre-existing condition that was aggravated further by the accident, resulting in the requirement for surgical intervention. 
*Please note that a significant contributing factor entails a comparison with other contributing factors. There can be more than one significant contributing factor, but a significant contributing factor must contribute in a way that is not insignificant, trivial or minimal. A significant contributing factor may be more than minimal but less than a major or dominant factor.”
202	Obviously, Dr Akil disagreed with the opinions expressed by Mr Siu.
Dr Philip Sheard (orthopaedic surgeon)
203	Dr Philip Sheard is an orthopaedic surgeon who examined the plaintiff at the request of his solicitors and first reported on 15 August 2024.
204	Dr Sheard was provided with a bundle of treating doctors’ reports, diagnostic materials and other material, including the first report from Dr Akil.  He was not provided for the purpose of that report with any of the evidence from Dr Siu.
205	Regarding the accident, Dr Sheard gave a history as follows:
“History:
 Dr Zafar told me he was driving with seatbelt at approximately midday on a light, dry day on 8 December 2022.  He described being stationary at traffic lights when he was hit from behind with no warning.  Airbags did not deploy, no second impact.  He described exchanging details and drove a short distance home but had immediate onset of pain.  He described the accident being on Saturday and booked in to see his GP on the Monday.  He describes being examined and sent for MRI scanning, given painkillers and referred to physiotherapy and chiropractic treatment.  He describes attending a spinal specialist and continued chiropractic and physiotherapy treatment for three months but pain worsened and he underwent L4/5 laminectomy in mid-2023, spent two to three days in the hospital.  This operation was of no help.  He describes being reviewed by another surgeon and underwent an epidural nerve root injection which was of no help.  Following this, he underwent an anterior L3/4 disc replacement, L4/5 fusion and a short time later a C5/6 disc replacement.  He also describes pain in both hips, left hip worse than right.  He also had a PRP injection which was of no help and a cortisone injection which did help.
 At the present time, he describes neck pain, across his neck which is aching all the time, worse with movement in all directions, has a full range of movement but does have clicking. He denies any radiation or upper limb neurology.
 In terms of his low back, he describes left-sided low back pain, depends on movement, standing or sitting okay, bending increases the pain, has occasional electric shocks, randomly in the anterior thighs and calves on a daily basis which is short-lived, no radiation. At the present time, he describes taking occasional Celebrex and Panadol.”
206	Regarding previous medical history, Dr Sheard obtained a completely inadequate history.  He said about previous medical history “nil relevant or direct questioning.  Rheumatoid arthritis, diagnosed aged 36 years”.
207	Dr Sheard then obtained a history of the injury’s effect on his work and recreational activity.
208	Dr Sheard then conducted a review of the file material, which included the material from treating practitioners before the accident, as I have set out in these reasons.
209	Regarding his opinion and prognosis, Dr Sheard said:
“Dr Salman Zafar was involved in a motor vehicle accident on 8 December 2022 in which he sustained aggravation of cervical spondylosis with right C6 radiculopathy and aggravation of lumbar spondylosis with radiculopathy.  It is noted from his notes that he had had episodes of severe neck and back pain prior to the accident dating back to 2014, with low back pain but no radiculopathy and no evidence of upper limb radiculopathy.  The injuries he sustained are consistent with the accident described.  He initially underwent L4/5 decompression followed by L3/4 artificial disc replacement and L4/5 anterior lumbar interbody fusion followed by C5/6 disc replacement and multiple injections.  His impairment cannot be considered stable at the present time as he is less than 12 months following his spinal surgery.  His L3/4 total disc replacement and L4/5 anterior lumbar interbody fusion was in December 2023 and he underwent C5/6 total disc replacement in January 2024.  I do not believe on the balance of probabilities, his impairment can be considered stable until 12 months following his last operation in January 2024.”
210	Dr Sheard then said his diagnosis regarding the lumbar spine was aggravation of lumbar spondylosis with new onset radicular pain and that the transport accident was a significant contributing factor, including for the need for surgery.  He made similar comments regarding the plaintiff’s claimed neck injury, diagnosing aggravation of cervical spondylosis with right C6 radiculopathy.
211	Dr Sheard reported again on 14 March 2025.  For the purpose of the supplementary report, Dr Sheard was provided with Mr Siu’s report dated 7 January 2025.  He then said that he was not of the view reached by Mr Siu regarding the likelihood that the plaintiff would have acquired lumbar and cervical surgery absent the motor vehicle accident.
Dr Shankar Ramaswamy (pain specialist and anaesthetist)
212	Dr Shankar Ramaswamy is a pain specialist and anaesthetist who saw the plaintiff for medico-legal purposes at the request of the plaintiff’s solicitors.
213	In a report dated 26 August 2024, Dr Ramaswamy obtained what he described as a background as per a letter of instruction, as follows:
“I understand that [the plaintiff] sustained a motor vehicle accident on 8 December 2022. He was stationary at a red traffic light when his vehicle was struck from behind by another vehicle. The collision occurred at a 60 kmph speed zone. A penalty notice has been issued to the offending driver who stated to the client that he did not see either our client's vehicle or the red traffic light prior to collision. I understand that although TAC accepted the claim, they did not agree to fund his post-accident spinal surgeries and he privately funded it via his insurer Bupa. 
 I understand that [the plaintiff] experienced spinal pain immediately following his collision and had sciatica symptoms after that. He consulted his general practitioner Dr Ashish Mathur with respect to the same. Within the fortnight of the collision, [the plaintiff] had symptoms and he had an MRI scan of his cervical and lumbar spine on 22 December 2022. He was referred to Dr Yagnesh Vellore, a neurosurgeon whom he reviewed on 6 January 2023. He mentioned neck pain with radiculopathy with worsening back pain and history of spondylolisthesis. He underwent spinal surgery on 9 August 2023 at St Vincent's Private Hospital under Mr Tiew Han in the form of L4/5 bilateral lumbar laminectomy. On 5 December 2023, he had further surgery under Mr Vellore in the form of L3/4 artificial disc replacement and L4/5 anterior lumbar interbody fusion. On 9 January 2024, under Dr Vellore, he had C5/6 artificial disc replacement.
I understand [the plaintiff] has a pre-existing past medical history of back pain and at the age of 37, he was diagnosed with rheumatoid arthritis. He was managing that quite well with anti-inflammatory medications. There was documentation of bilateral hand paraesthesia on 22 December 2015. It was typical of carpal tunnel syndrome. Dr Hassan, his treating neurologist, documented the consultation. The C-spine MRI scan from October 2014 was reviewed and it showed minor disc protrusion at C5/6 level without convincing nerve root compression at that level. The cervical cord at the remaining levels was normal. There was no evidence of significant median nerve dysfunction at the wrist. On 5 November 2020, he presented with multiple neurological symptoms with inflammatory polyarthritis and was considered to start TNF-alpha antagonist. The right upper limb and bilateral lower limb nerve conduction studies were normal with no evidence of polyneuropathy. The objective abnormalities point to mild proximal myopathy particularly in the upper limbs. His CK levels were mildly elevated and he had mild but convincing weakness at the neck and proximally in the upper limbs. 
He had further report from 1 December 2020 following a telephone consultation. His brain and cervicothoracic MRI scan was normal with no evidence of demyelination. There was canal stenosis at C4/5 level but no compressive myelopathy. The cord signal change at that level was normal as there was still a thin rim of CSF around the cord. He had persistent low back pain and he was meant to have further MRI scan of the lumbar spine. Dr Ian Gotis-Graham, rheumatologist had documented on 21 July 2021 about an examination finding of cervical and lumbar spine pain resulting in localised pain. The power in the upper limbs was normal. Investigations from 6 May showed rheumatoid factor positive at 32. The anti-CCP antibodies were negative. ANA was 1:80. Repeat MRI scan of the entire spine revealed damage at C5/6 with encroachment on the right C6 nerve root. The MRI scan of the lumbar spine revealed disc and facet joint damage at L3 to S1. There was evidence of left L3 nerve root compression although that was not clinically symptomatic. In addition, [the plaintiff] stated that he also had some PRP injections to his hip. 
Background History: 
[The plaintiff] told me that he was driving with seatbelt approximately midday on 8 December 2022. He was stationary at the traffic lights and he was hit from behind with no warning. The airbags were not deployed. He drove a soft distance home but he developed immediate onset pain. It was Saturday when the accident happened and he booked to see his GP on Monday. He had an MRI scan and was given some painkillers and referred to physiotherapy and chiropractic treatment. He was seeing a spinal specialist, continued chiropractic treatment, physiotherapy for three months but he had worsening pain and he underwent L4/5 laminectomy in mid-2023. He spent 2-3 days in a hospital. The operation did not help his symptoms. He was reviewed by another surgeon and he underwent an epidural nerve root injection which did not help. Then he went on to undergo anterior L3/4 disc replacement, L4/5 fusion and then he went on to have C5/6 disc replacement. He described pain in both his hips, worse on the left side than the right side. He had some PRP injections which were not helpful and he had some cortisone injections which did help. 
[The plaintiff] described ongoing neck pain. It feels aching all the time and it is worse on movement in all directions. He does have full range of movement but he feels clicking sensation. He does not have any radicular features going down the upper limb. His average pain score in the neck is about 3-4/10. 
He also has low back pain which is worse on the left side than the right side. It is precipitated by certain movements. Sitting and standing is generally okay but bending increases the pain. He occasionally gets electric shock like sensation randomly into the anterior thighs and calves on a daily basis but that is usually short lived. Sitting down for over an hour or lying down can be painful. He avoids activities involving bending and twisting or lifting anything over 5 kg. He avoids activities involving pushing or pulling things. He also describes having pain around his hips on the left side and he mentioned that he had a gluteal medius tear for which he had some PRP injections which helped the symptoms. He also had some cortisone injections which gave him some short term pain relief. His pain score in that region has come down from 7-8/10 to 2-3/10. He can sit and drive for up to 30 minutes and after that, he feels achy. He has to change positions or take rest from driving the car for some time and then drive again. He takes prn Celebrex and Prednisolone. He takes occasional Panadol.”
214	Dr Ramaswamy then obtained a history of the impact of the plaintiff’s injuries on him, conducted an examination and reviewed documents, including the treating material before and after the accident.  Having done so, he said it was his opinion that the accident resulted in aggravation of cervical and lumbar spondylosis.  He noted the plaintiff had radiculopathy features specifically after the motor vehicle accident and described the injuries to be consistent with the accident described.
215	Dr Ramaswamy provided a further report dated 22 February 2025.
216	For the purposes of his second report, Dr Ramaswamy was provided with the statement of Mr Kao.  He again set out the history of various attendances on doctors before the accident in a consideration of the report of Dr Gotis-Graham dated 14 January 2025.
217	Dr Ramaswamy then considered the reports from the treating neurosurgeons and from Mr Siu.
218	Having considered all that material, Dr Ramaswamy was asked several (leading) questions, which he answered as follows:
“Lumbar spine 
 (a)	Please carefully read the enclosed clinical records of Dr Hassan, Ingleburn Medical and Dental, Doctors at Preston, Dr Graham, Dr Mathur, and the enclosed diagnostic materials. Do you remain of the opinion expressed in your previous report that as a result of his transport accident on 8 December 2022 [the plaintiff] suffered an aggravation of lumbar spondylosis and organically based chronic posttraumatic pain.
i.	Please detail your answer with reference to the abovementioned enclosures were necessary. 
 In my opinion, on the balance of probabilities, I believe that [the plaintiff] sustained an aggravation of his lumbar spondylosis following the motor vehicle accident which happened on the 8 December 2022. As noted in the incident report and in his GP notes on the 12 December 2022, he presented with neck pain and low back pain following the accident, along with radiculopathy. To my knowledge, there is no documented evidence in the notes that I have reviewed which mentions about any painful radicular symptoms either in the cervical or lumbar spine prior to the accident. 
 I believe his current low back symptoms are due to an aggravation of lumbar spondylosis and organically based chronic post-traumatic pain along with onset of nerve root compression as a consequence of the motor vehicle accident, on a background of pre-existing asymptomatic nerve root compression and neck and back pain aggravation of his pre-existing lumbar and cervical spondylosis. 
 The collision report also clearly highlights that [the plaintiff] experienced neck and back pain immediately following the accident. 
 (b)	Please carefully read the ‘Other materials’ enclosed herewith. Are you of the view that, on the balance of probabilities, [the plaintiff’s] transport accident as described therein represents a mechanism of injury consistent with the causation of any lumbar spine injury diagnosed in question (a). 
 Having reviewed the ‘other materials’ enclosed herewith, I do believe that on the balance of probabilities, [the plaintiff’s] transport accident as described therein represents a mechanism of injury consistent with the causation of any lumbar spine injury diagnosed in question (a). 
 (c)	Any further comments you wish to make, including with respect to the opinions expressed by Dr. Siu regarding [the plaintiff’s] transport accident and lumbar spine injury in his enclosed reported dated 2 December 2024, 17 December 2024, and 7 January 2025. 
 On the balance of probabilities, I believe that [the plaintiff’s] transport accident on the 8 December 2022 was a significant contributing factor to all his (cervical and lumbar spine) surgeries. In my opinion, [the plaintiff] appeared to have a manageable neck and back pain with no radicular-type symptoms prior to the accident. I believe the reason for his operations was predominantly radicular-type symptoms as opposed to axial back pain. 
 There was no documentation of radicular symptoms in his GP or other medical notes prior to the accident. However, Four days following the accident, [the plaintiff] presented to the GP with neck, low back pain with radiculopathy which is consistent with the the aggravation caused by the accident. His treating specialists report agrees with this position. 
 I do not agree with Dr Siu's views on the contribution of the the motor vehicle accident to [the plaintiff’s] neck and low back symptoms for reasons mentioned above. However, it is beyond my scope of practice to comment on the indications for cervical and lumbar spine surgeries.
 Cervical spine: 
 (d) 	Please carefully read the enclosed clinical records of Dr Hassan, Ingleburn Medical and Dental, Doctors at Preston, Dr Graham, Dr Mathur, and the enclosed diagnostic materials. Do you remain of the opinion expressed in your previous report that as a result of his transport accident on 8 December 2022 [the plaintiff] suffered an aggravation of cervical spondylosis and organically based chronic posttraumatic pain. 
i.	Please detail your answer with reference to the abovementioned enclosures were necessary. 
 In my opinion, on the balance of probabilities, I believe that [the plaintiff] sustained an aggravation of his cervical spondylosis following the motor vehicle accident which happened on the 8 December 2022. As noted in the incident report and in his GP notes on the 12 December 2022, he presented with neck pain and low back pain following the accident, along with radiculopathy. To my knowledge, there is no documented evidence in the notes that I have reviewed which mentions about any painful radicular symptoms either in the cervical or lumbar spine prior to the accident. I believe his current neck symptoms are due to an aggravation of cervical spondylosis and organically based chronic post-traumatic pain along with onset of nerve root compression as a consequence of the motor vehicle accident, on a background of pre-existing asymptomatic nerve root compression and neck and back pain aggravation of his pre-existing lumbar and cervical spondylosis. The collision report also clearly highlights that [the plaintiff] experienced neck and back pain immediately following the accident. 
 (e) 	Please carefully read the ‘Other materials’ enclosed herewith. Are you of the view that, on the balance of probabilities, [the plaintiff’s] transport accident as described therein represents a mechanism of injury consistent with the causation of any cervical spine injury diagnosed in question (d). 
 Having reviewed the ‘other materials’ enclosed herewith, I do believe that on the balance of probabilities, [the plaintiff’s] transport accident as described therein represents a mechanism of injury consistent with the causation of any cervical spine injury diagnosed in question (d). 
 (f) 	Any further comments you wish to make, including with respect to the opinions expressed by Dr. Siu regarding our client’s transport accident and cervical spine injury in his enclosed reported dated 2 December 2024, 17 December 2024, and 7 January 2025. 
Please see answer to Question (c).”
(sic)
Summary of medical evidence on causation
219	That completes a summary of the relevant treating and medico-legal evidence. 
220	It should be clear that Mr Siu’s evidence does not assist the case advanced by the plaintiff on causation, or for that matter, on consequences.  
221	On the other hand, the balance of the medical evidence assists the plaintiff’s case on causation.  
222	True it is that some of the evidence such as that from Dr Aliashkevich is equivocal about the extent of injury caused by the accident, but overall, the general thrust of that evidence is that the plaintiff was symptomatic in the lumbar and cervical spine before the accident, but deteriorated after the accident, with increased neck and back pain and the onset of new (lumbar) or further (neck) radicular symptoms.  
223	I accept that there was a deterioration of symptoms in the neck and back, and the onset of radicular symptoms because of the accident.  Therefore, the balance of the medical opinion broadly supports a conclusion that there was sufficient force from the collision to cause an aggravation injury that led to the need for repeat lumbar surgery and cervical surgery.
224	Pausing yet again, if the test for serious injury was satisfied simply by having surgery, then the resolution of the dispute in this proceeding would be a lot easier.
225	It is perhaps an instinctive response to think that major surgery does equate to a “serious injury”.  But that is not the legal test.  It is the assessment of impairment consequences now that I must make, not what the plaintiff was like immediately before or after surgery.
226	But regarding causation, I conclude that the accident caused a significant and rapid deterioration such that major spinal surgery was required.  I accept that the accident aggravated the underlying degenerative change, with the onset of new or different radicular symptoms by at least the attendance on Dr Mathur on 12 December 2022.
Causation is not the end of the matter
227	However, that is not the end of the matter.  Issues still arise as to the extent of aggravation and of any additional impairment consequences.
228	The remaining evidence is what the plaintiff said in his affidavits and in the witness box about his life before and after the accident.  As already mentioned, that evidence needs to be assessed carefully by reference to the objective evidence.
The Plaintiff’s affidavit evidence
229	The plaintiff swore three affidavits in support of this application.  I have already mentioned some of the deficiencies in his affidavits, including his description of symptoms before the accident. 
230	 But broadly in his first affidavit, the plaintiff said none of his pre-accident health issues significantly impacted his ability to work or engage in day-to-day activities, both recreational and domestic.
231	The plaintiff said that he suffered immediate pain in both his back and neck after the accident and later went on to develop pain in his hips.  The pain radiated down both of his legs into his thighs, and his right arm and hand.
232	The plaintiff then set out the path of treatment and need for surgery.
233	Regarding ongoing symptoms, the plaintiff then said:
“Certainly the operation to my back helped a bit in terms of the pain going down into my buttocks and legs. The operation to my neck helped a bit in terms of pain going down into my right arm. 
 In terms of work, I had continued to work, in pain, up until undergoing surgery but I found that working for more than 1-2 hours was very difficult and I requested more flexibility with my hours which the clinic I worked at was unable to accommodate and my employment therefore ended up being terminated and effectively told me it would be best if I found another position. 
 Fortunately, in the last couple of months, I have been able to resume work on a part-time basis with Wyndham Village Medical Centre. The hours there are flexible and indeed if I suffer from significant pain, I can stop and go home. My patients end up seeing other doctors when this occurs. The clinic knows of my situation and is quite flexible. However, I am suffering from a significant reduction in my income, on a salary of $40,000 per annum. I do not receive any top-up payments from the TAC. 
 In terms of my pain, I still suffer from pain in both my back and neck. In terms of my back, I experience electric shocks down the legs and find it difficult to lift anything heavy, more than about 5kg. I have spoken to Mr Vellore about ongoing symptoms and he indicated it could be 6-12 months for the back to settle following the surgery. 
 Even in my neck, I still experience a slight crunch and intermittent pain. 
 Moreover, I experience pain in my hips, the left being worse than the right and I find myself frequently having to change position after sitting for more than about 5-10 minutes. 
 My injury has had a significant impact on my ability to sleep. Shooting pain down the right leg when I lie on my right side and shooting pain down my left leg when I lie on my left side can wake me up at times. I suffer from pain even lying flat on my back and lying on my stomach is also painful notwithstanding the fact that I take painkillers. Invariably, after a bad night’s sleep, I suffer from daytime fatigue. 
 In addition, as a result of my relative inactivity arising from my injury, I have put on a fair bit of weight, approximately 11kg although post-surgery I have been trying to exercise and have been able to shed about 2-3kg. 
 My ability to drive is restricted and I find that driving for more than about 5-10 minutes is uncomfortable. 
I am precluded from day to day activities such as performing the big shopping and invariably Sumaiya and the kids do the shopping these days. 
Sitting, standing and walking for prolonged periods of time is uncomfortable for me. For example I find that taking showers can produce pain to in my back, back, and down my legs. 
I have not re-commenced physiotherapy treatment yet as my spine needs time to heal. This might be anywhere between 3-6 months. 
In the past I was relying on a number of different of medications including Lyrica, Celebrex and Prednisolone. 
Currently, I am taking Celebrex and Paracetamol. I cannot take anything stronger at the moment and have to wait. 
Not only has the injury impacted on my ability to work, it has also had a significant impact on my day to day activities. 
I used to enjoy going to the park and playing cricket with friends including umpiring. As a result of my injuries, these days all I can really manage is going to watch. 
I also used to enjoy going to the beach and swimming. I have attempted to go to a local pool but found difficult due to shooting pain in my legs. 
I also used to enjoy going with the family to play 10-pin bowling. Again, these days I can only go and watch. 
We used to regularly go on long family walks 2-3 times a week to the local park. More often than not, Sumaiya goes for walks with the children without me. 
In the past I used to be able to perform gardening activities such as mowing. These days we now pay for a gardener to do this for us. 
Certain home chores I find difficult such as taking the dishes out of the dishwasher and assisting with the laundry. Effectively, any task that involves bending is difficult for me. 
Even bending over to put my shoes and socks on is problematic and indeed I have tripped up on a few occasions when attempting to put on my pants.”
(sic)
234	The plaintiff then swore a further affidavit on 31 January 2025.  In that affidavit he set out his ongoing symptoms and treatment.  He described difficulty with playing social sport, housework, prolonged driving and the like.  He said he was concerned about the effects of the surgery at L4-5 because of the impact on the discs above and below which may require further fusion treatment.
235	Regarding work, the plaintiff said as follows:
“In terms of work, in the last full financial year 2023/2024 working at the Wyndham Village Medical Centre I was paid wages totalling $40,000. This was working 23-25 hours per week although I have managed to increase my hours to 28 hours per week, working 10am to 5pm Monday to Thursday. Working more than this I find too difficult because of pain. Indeed, sitting and talking to patients for prolonged periods of time increases the pain in my back running down my legs and even during a consultation I will often have to stand up in order to relieve the symptoms.
Moreover, I can only manage to get through the day by blocking myself out for periods of time between seeing patients which is not normal practice and indeed most practices won’t allow it on the basis that if I am not earning money, the practice is not earning money but fortunately the clinic I am currently working at is flexible in this regard. 
The arrangements over the years whilst working for different clinics has always effectively been working as a subcontractor, paying the owners of the clinic 30% commission and in return being provided with a serviced suite and staff. 
In 2020/2021 whilst working at the Ingleburn Medical Centre in Sydney where I had been working from 2014 until early 2021, I grossed by way of medical income $347,532, in the 2021/2022 financial year $255,910, the income dropping due to the fact that I briefly changed clinics in Sydney for a period of a few months and then and (sic) transferred to Melbourne in 2022 and then in 2022/2023 I grossed by way of medical income $272,470. 
Following the accident, in the 2023/2024 financial year I grossed by way of medical income $181,603. The drop of income, of approximately $90,000, resulted in a wage distribution from the family trust of $40,000 post expenses. 
Moreover, whereas in the past the family trust was able to distribute income to my wife, for example $26,750 in the 2021/2022 financial year, in the following financial years there was no such distribution due to the fact I was not generating enough income after expenses. 
Whilst I am hopeful of being able to increase my hours at some stage, I doubt I will ever be able to get to the hours that I used to work in the past before the motor vehicle accident, namely up to 35 hours per week.”
236	The plaintiff then swore a second further affidavit on 12 March 2025.  In that affidavit he exhibited various documents, provided some more information about the circumstances of the accident and then again set out claimed impairment consequences, including difficulty performing his daily prayers.  
237	Next, he appeared to provide some expert evidence [sic] on causation for this case by setting out how his wife and son had complained of back pain because of the accident, several months after the accident and how a TAC claim was accepted respectively on behalf of each of his wife and son.  I do not place any weight on that evidence insofar as it is relevant to his claim.  There is no suggestion his wife or son made a claim for an aggravation of pre-existing degenerative change in the spine.
Lay affidavit of Sumaiya Salman
238	In addition to his affidavits, the plaintiff also relied on an affidavit from his wife, Sumaiya Salman, sworn 12 March 2025.
239	His wife’s affidavit is capable of being described as supportive of his claim.  However, much of the affidavit appears to be directed towards her own claimed back injury and is of little relevance.  Of course, I must assess her evidence through the prism of the reliability of the plaintiff’s evidence.  In that regard, I note that she said the transport accident had changed the plaintiff’s entire life and that “there doesn’t seem to be anything that he did or we did as a family that hasn’t been impacted after the accident”. 
240	Regarding the plaintiff’s pre-accident health, his wife described his diagnosis of arthritis before the accident, but that she could not remember his back or neck being an issue for him in any significant way before the accident.
241	In lay terms, the plaintiff’s wife went in to bat for him, but some of her affidavit evidence is unreliable and irrelevant.  Not that it matters, but perhaps she can blame the lawyers for how it was drafted?
242	Overall, the evidence in Sumaiya Salman’s affidavit is of little assistance to the resolution of the issues in this proceeding.
The plaintiff’s oral evidence
243	The plaintiff was probed appropriately in cross-examination about the reliability of his evidence about symptoms and impairments both before and after the accident.
244	The plaintiff was taken carefully in cross-examination to the evidence from treating practitioners, as I have set out in these reasons, to contrast that with what the plaintiff had said in his own affidavit evidence and to the doctors.
245	In his oral evidence, the plaintiff at times ventured into being an advocate rather than a witness, perhaps because of a mistaken belief that he could use his own medical qualification to help his case.  He was keen to emphasise his medical understanding of his diagnosed conditions before and after the accident.
246	To illustrate this point, when he was asked about symptoms in his neck and back before the accident, the plaintiff disputed he had symptoms of right C6 nerve root compression before the accident by describing the anatomy of the C6 nerve root, which caused me to interrupt and ask for a lay explanation.  In that context I asked him how he was travelling before the accident.  He said:
A:	“Exactly, so Your Honour the – before the accident I used to get pins and needles across here, in the front of my hand, after the accident I used to get needle in the index finger and the thumb on the back of the hand, and they're different nerves basically, so I didn't get the procedure done for the - the cervical spine just because I had carpal tunnel, I got carpal tunnel treatment elsewhere. It was because I was getting this needle, like someone was actually stabbing in the middle of my thumb and my index finger, on the back, that's what actually trigger the operation after the accident. 
Q:	And just come back to before the accident, I think the points where Mr Masel's got you at the moment?---
A:	Yep. 
MR MASEL: 
Q:	Yes and - - -?---
A:	Sorry I - - - 
Q:	- - - His Honour was correct in - - -?---
A:	Yeah.
Q:	- - - much more – a better question, I am asking how you were travelling - - -?---
A:	Yep.  
Q:	- - - in the years leading up to the car accident?---
A:	Correct.
Q:	And I am suggesting to you that it wasn't all rosy, that you had very significant neck and back pain?---
A:	I agree with you.
Q:	And intermittently you had symptoms that at least Gotis-Graham has put this way, that you describe to him symptoms which he says are consistent with right C6 nerve root compression?---
A:	So he assumed at that time that it could be C6 because of the MRI, so he organised a medication for my neck pain, which didn't make any difference, so – so basically this is (indistinct) before everything happened, so he wouldn't know that eventually it didn't make any difference at all for the C6. 
Q:	Well it's true that you did proceed to have a lumbar facet injection?---
A:	Yes.  
Q:	And that's reported for - - -?---
A:	The lumbar facet joint injections did actually help with the lower back pain, because they were facet joints, and the facet joints were actually hurting me, yeah.”
247	Regarding treatment with Dr Mathur before the accident, he was cross-examined by reference to the doctor’s notes.  He accepted the history that was written down.  He accepted that he had been experiencing headaches before the accident which at times were significant.  He said stress would bring the headaches on. 
248	Next, about the telephone consultation with Dr Mathur on 7 December 2022, he accepted that was a discussion about chronic lower back pain and the need for prescriptions.  He was then asked the following:
Q:	“What was it about the chronic low back pain that was causing you, in December 2022, to want a referral for further imaging?---
A:	Because he was a new GP to me and my previous scripts were issued by - either by my previous GP or Dr Gotis-Graham, and I asking for scripts for prednisone instead of (indistinct) for the inflammatory arthritis, so he just wanted to check, do an x-ray to see how the Z joints were doing, hence why he referred me for the x-ray. 
Q:	And you agree that you told him then of your history of chronic low back pain?---
A:	Yeah, that’s, that’s correct. That’s correct.”
249	About the need for imaging of the lower back as of 7 December 2022, the plaintiff said he was running out of prescriptions for medication and when asked if he could have e-scripts the doctor said he would have to send him for an up-to-date x-ray.  The plaintiff accepted he needed the medication because of chronic lower back pain.
250	The plaintiff was cross-examined about the accident, the size of the vehicle he was travelling in and the forces involved.  I have set out some of that evidence already.  He was then challenged about his affidavit evidence that he suffered from pain in both his back and neck after the accident.  He accepted he did not see a doctor on the day of the accident.  
251	The plaintiff explained in his oral evidence that he needed an appointment, and the first available appointment with Dr Mathur was three or four days after the accident.  At that time, he was referred to a chiropractor.  He agreed that he saw the chiropractor for a period, although only the note of the 6 January 2023 attendance is in evidence.
252	It was then clarified that the first clinical record of an attendance on Dr Mathur had the date 12 December 2022. He agreed that was the first attendance after the accident.
253	The cross-examiner than returned to ask about his affidavit evidence of immediate pain in the back and neck radiating down both legs into his thighs, right arm and hand.  He said:
A:	“So after the accident, that night the pain started shooting a lot. So when I was lying in bed, I was telling my wife that this is not normal pain that I'm getting right now, because I couldn't go to sleep because there was so much pain, and started shooting down. So that's why I said after - - - 
Q:	You used your hands, and that doesn't show on the transcript? ---
A:	Sorry. 
Q:	You say on the night of the accident, you're in bed and the pain is shooting down - - -?---
A:	That's correct. 
Q:	- - - and you used your hands - - -?---
A:	That's correct. 
Q:	- - - to show down your legs?---
A:	Exactly. 
Q:	Is that right?---
A:	That's correct. 
Q:	Is that your evidence?---
A:	That's correct.
Q:	That on the night of the accident - - -?---
A:	Yes.
Q:	- - - the pain turned into a shooting pain down your legs?---
A:	Correct.
Q:	Left leg, right leg or both?---
A:	It was both sides. The left was worse than the right side. 
Q:	And there's no way that you're confused about that?---
A:	No, not confused. It's just that at that time it was coming intermittent, and later I think from January time this became constant. 
Q:	Right?---
A:	Yeah. 
Q:	Well, as a medical practitioner - - -?---
A:	Yep. 
Q:	- - - you would recognise the significance of a shooting pain down your legs that's new?---
A:	Absolutely. 
Q:	And you say this is new?---
A:	This is new, that's correct. 
Q:	So if you had a shooting pain down your legs on the night of the car accident, you would regard that as a very important matter, haven't you?---
A:	That's why I went to see Dr Mathur to get this consult. 
Q:	And you'd regard it as something very important to tell your doctor, is that right?---
A:	Absolutely. 
Q:	And yet what's the doctor has written is, ‘Now complaining of neck pain with radiculopathy’?---
A:	Yep. 
Q:	‘Worsening back pain’ - - -?---
A:	Yeah. 
Q:	- - - with a history of spondylolisthesis?---
A:	Yep. 
Q:	All right. There's nothing in the doctor's note about radiculopathy for the low back, is there?---
A:	Yeah, I wouldn't know what he's typing, but I can only tell you what I'm telling him, so - - -”
254	The plaintiff was then challenged about what information he had included in his TAC claim form, including his reference to having been getting neck and back pain since.  He was challenged, because in that document he indicated he had pain going down his buttocks, but not the legs.  
255	It was then put to him that his first complaint of pain going down his legs was related to an attendance on a Dr Bhaskar on 6 January 2023.  About that clinical entry he was cross-examined as follows:
Q:	“And I will read – well we'll read together - - -?---
A:	Yes.
Q:	- - - what Doctor has written because - - -?---
A:	I absolutely remember this consult - - - 
Q:	- - - I want you to explain it to me?---
A:	Oh yes I can explain it because I made a complaint against that doctor for being unprofessional conduct. 
Q:	All right?---
A:	Yes.
Q:	Well you agree that what the doctor has written is that you've come with a request, and according to the doctor you were trying to impose?---
A:	That's – that's not correct, I went there to get a referral to a neurosurgeon, and he said he does not believe in neurosurgeons, and when I said, can I get a referral to a chiropractor, he said I don't believe in chiropractor, so then why I am here, and he said, you can leave, and I just walked out of the room and I saw Dr Firas the same day, because I made a complaint to the practice manager against the doctor. 
Q:	Doctor's written - - -?---
A:	Yeah. 
Q:	- - - that you were requesting referral but that doctor did not know why?---
A:	The doctor unfortunately is around retirement, I don't want to go into the argument regarding that particular consult but that consult he did not understand medical terminology, plain and simple, he did not know what radiculopathy actually was, and hence why I had to see Dr Faris, and he went on medical leave for a – for a few weeks after that. 
Q:	Well you'd agree then with the last sentence, that it was you that requested – that it was better for you to see another doctor, and you left the room?---
A:	No I just left the other – I just left the room, I said look I am here for a referral, if you can't give me a referral then should I see another doctor, he said, yes you should leave, and that – and I left. 
HIS HONOUR: 
Q:	Well that seems to be what the doctor's reported?---
A:	Yeah.
MR MASEL: 
Q:	And what you did was go to and see another doctor at the same clinic?---
A:	That's the owner of the - MedicFirst, Dr Firas Alhamdani. I saw him, yes, to make the complaint, yeah. 
Q:	And I'll spell that for the transcript, A-l-h-a-m-d-a-n-i?---
A:	That's correct. 
Q:	So you saw Dr Alhamdani?---
A:	Yep.
Q:	And you told Dr Alhamdani about the car crash?---
A:	That's correct. 
Q:	And you told Dr Alhamdani that you were now complaining of neck pain - - -?---
A:	Yep. 
Q:	- - - with radiculopathy, is that right?---
A:	Correct.
Q:	And worsening back pain with a history of Spondylolisthesis?---
A:	Correct.
Q:	You didn't say anything about radiculopathy affecting the low back, did you, at that time?---
A:	I think I was actually - because we've had that argument, Dr Bhaskar just said radiculopathy, pain shooting down, so I think he was in a bit of a hurry so I'm not sure what he's written down there. But he did give me a referral for both MRIs, for neck and back. 
Q:	Doctor, you, being a doctor, would be very careful to mention an important symptom, such as referred pain down your legs?---
A:	I did. I did tell them.”
256	Next, the cross-examination moved on from symptoms before and after the accident, to his claimed impairment consequences from the accident.
257	Regarding the plaintiff’s claimed reduction in income as set out in his affidavits, he was taken to that topic as follows:
Q:	“If you look with me at your first affidavit, paragraph 32, you wrote, or you deposed, ‘I'm suffering from a significant reduction in my income on a salary of $40,000 per year. I don't receive top-up payments’. You're nodding?---
A:	Yes. 
Q:	By deposing that, what you're saying to the person who reads the affidavit is that as a result of the transport accident your earnings have gone down to $40,000?---
A:	Can you put that on the screen for me? I can't see it. Ah, I can't see it on my - just can you put that on? 
Q:	It's plaintiff's court book p12 paragraph 32?---
A:	Thank you. 
Q:	The significant reduction in your income was because your salary was $40,000, is that right?---
A:	That's the salary I was paying from the family trust to myself, correct. 
Q:	From a family trust. Where does it mention anything about a family trust in paragraph 32?---
A:	I think that's in the other affidavit. 
Q:	Yes. After you made this affidavit, at a later time, the TAC asked you for more details about your income, didn't they?---
A:	Right. 
Q:	And that's the first time we hear anything about a family trust?---
A:	I'm not sure about that. but (sic) they can (indistinct) would have been less than that, so.”
258	Further on in cross-examination, the plaintiff described his current payment arrangements as follows:
Q:	“You have an – and is that the same type of arrangement as you had in Sydney?---
A:	Exactly the same. So basically it is 70 30 split, Your Honour. So between – so whatever we earned from Medicare, so it's 70 per cent plus – so then GST five per cent on top, so we get 65 per cent, 35 per cent we deduct it at the source. They will give the 35 per cent for the sales fee and give the remainder back. And then we have to deduct expenses and everything then pay us the salary whatever's left over. 
Q:	So?---
A:	Yeah.
Q:	Unpacking that. Your earning capacity - - -?---
A:	Yep.
Q:	- - - or your earnings, in fact?---
A:	Yep.
Q:	Depend on how many patients you see?---
A:	Correct.
Q:	And most of the patients are bulk billed, are they?---
A:	95 per cent, maybe more.  
Q:	And if it's not a bulk billed patient, the distribution is the same?---
A:	Yes, exactly the same still. 
Q:	All right. So you see the patient, and their Medicare claim is processed by the clinic?---
A:	Correct. 
Q:	And the proceeds of the patients that you see are then transferred at your request to a family trust, is that right?---
A:	So basically, they will process the Medicare rebate, the clinic, and then they will deduct their service fee charges from it, and then whatever's left over they will process to the family trust account. 
Q:	Yes?---
A:	And then we will also paying our expenses and after that whatever's left over, you can pay it to yourself as a salary. 
Q:	And the family trust, is that a company?---
A:	It's a company. 
Q:	And who are the directors of the company?---
A:	I'm the director, sole director of the company. That's correct. 
Q:	All right. And does the family trust have any other income, apart from the fee – the assignment of the fees for – or the proceeds of the fees that are received by the clinic - - -?---
A:	It's just – just medical income. Occasionally I might get a payment from Royal College, ah if I'm conducting an exam. But that's like maybe a few hundred dollars, a thousand dollars once every six months, something like that.”.
259	Eventually the plaintiff conceded that whilst his salary may have technically been $40,000 gross per annum, that was a decision made because he was the sole director of the relevant company and did not necessarily reflect the actual earnings that he was able to generate for that company.  In short, there was clearly some appropriate tax minimisation and accounting factors at play that arrived at the figure that the plaintiff is currently paid.
260	A table was then produced of the plaintiff’s earnings before and after the accident and the plaintiff was taken to that.  Eventually it was put to the plaintiff that his earnings had reduced dramatically in the 2021 year.  The plaintiff’s response was “I changed jobs there”.  The plaintiff explained that as he changed clinics it took a while to build up a patient base, usually six months or so, but he denied that any pre-existing health factors were relevant for a reduction in income before the accident.
261	Eventually the plaintiff accepted that he is now generating sales (earning income) more than he was earning before the car accident.
262	The cross-examiner then returned to the issue of the plaintiff developing shooting pains after the accident.  In particular, he was challenged about whether he did have shooting pains down the legs after the accident because there was no mention of that to Dr Mathur on 12 December 2022, and because of the history he gave to Mr Han of the shooting pain coming on in January 2023.  He said that on the night of the accident he got the pains, they were shooting down.  He said they were “intermittent, coming and going, and in January time it became a lot worse, and I reported that to the chiropractor as well multiple times”.
263	The cross examiner then focused on the result from surgery.  By reference to the evidence from Mr Vellore, the plaintiff agreed that he had improved considerably since both surgeries, which I note is consistent with the objective evidence.
264	The plaintiff also candidly agreed in cross examination that any medication he now takes for pain in his spine, is prescribed because of his underlying rheumatoid arthritis.
Legal principles about aggravation injury
265	The defendant contended that the Court was required first to identify the alleged aggravation injury, identify the impairment consequences from such injury and then assess whether any additional impairment caused by such injury qualifies as a “serious injury”.  
266	In that context, the defendant criticised the medical opinions relied on by the plaintiff in essence for asking the wrong questions.  The defendant said that answering a question about material contribution would lead the Court into error, as was the case in Filipowicz.
267	In any event, the defendant contended that the Court should reject the accident as having played any part in any ongoing impairment consequences because of the reasons it said that were identified cogently and reasoned by Mr Siu.
268	I consider that the legal principles are not really in dispute.  The guiding principles for an aggravation injury remain as set out in Petkvoski, and more recently confirmed in Seckold v Transport Accident Commission (“Seckold”). The dispute in this case is really a factual dispute.
269	Seckold is a decision about the analysis of a claimed aggravation injury to the right wrist.  About the principles involving the legal test, the court in Seckold said:
“In our view, there is little to distinguish the present case from the decision of the Appeal Division in Petkovski v Galletti. In that case, a submission had been made by the respondent to an application for leave to commence a common law proceeding under s 93(4)(d) of the Act that, in a case involving the existence of a pre-existing degenerative condition in an applicant’s spine, a comparison had to be made of the condition of the applicant immediately before the accident with his condition thereafter, and an assessment made of the extent of the additional impairment; and, if that additional impairment was not ‘serious’, then leave to commence a common law proceeding must be refused. The Appeal Division held that the primary judge ought not to have rejected the respondent’s submission. As the plurality put it: 
‘One should commence with the acknowledgment that it has long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.’ 
The Act does not affect that long-established principle.
Later, with reference to the underlying facts of Petkovski, the plurality said:
‘The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.’”
(Footnotes omitted.)
Analysis
270	First, the plaintiff must establish that the accident was a cause of injury to his spine.
271	The evidence discloses that the plaintiff had pre-existing degeneration affecting both the lumbar and cervical spine.  That condition was sufficiently symptomatic, such that he required CT-guided injections to both the lumbar and cervical spine in July 2021.  
272	Further, the plaintiff may also have been symptomatic in the lumbar and cervical spine because of consequences from his underlying arthritic condition.
273	By December 2022 the plaintiff was managing his arthritic condition and symptoms in his lumbar and cervical spine by the ongoing use of Celebrex and prednisolone.  In that context, he was referred for an x-ray by Dr Mathur on 7 December 2022, as a precursor to that doctor prescribing Celebrex and prednisolone.  I accept that the doctor accurately recorded the plaintiff as having chronic lower back pain at that time.  The objective evidence is that he also had symptoms in the cervical spine.
274	But, on a consideration of the whole of the objective evidence, including the opinions from Dr Gotis-Graham and the available radiology, as at December 2022 the plaintiff did not have any radiculopathy (sciatica) or radicular-type symptoms in either the upper or lower limbs.  
275	Next, after a consideration of all the evidence, I accept that the force involved in the accident was significant enough to aggravate both the lumbar and cervical spine conditions.  
276	I acknowledge Mr Siu’s opinion that the accident could not have aggravated the lumbar spine condition could have temporarily aggravated the cervical condition.  
277	But I prefer the evidence from the other medical practitioners, in particular the opinions from Dr Akil and Mr Vellore, which fit with the objective evidence, namely that within five days of the accident the plaintiff returned to see his general practitioner with an increase in symptoms and then the onset of lower limb radicular symptoms (sciatica), by early January 2023, at the latest.
278	In the setting where the plaintiff is an unreliable witness, I am not prepared to accept his evidence of the immediate onset of upper or lower limb symptoms after the accident.  But in the setting of an aggravation of his pre-accident degenerative spine changes and no other intervening event, on balance, I accept the evidence that the deterioration of symptoms in January 2023 is “fairly rapidly” from the accident and in those circumstances the radicular symptoms are related to the aggravation injury.
279	Therefore, as a starting point, the plaintiff has made out causation.  I conclude that the accident was a cause of injury to his lumbar and cervical spine.
280	But, for a claim based on an aggravation injury, the fact that the accident was a cause of injury is not enough.  The plaintiff must also establish the extent of the accident-related aggravation injury by way of additional impairment consequences to meet the test of “serious injury”.
281	About the aggravation injury, I accept the evidence from the treating practitioners, in particular Mr Han and Mr Vellore, that the aggravation injury required the need for repeat lumbar surgery and cervical surgery.  As Mr Vellore said, “the accident has caused significant aggravation of cervical and lumbar spondylosis”.
282	As mentioned, the need for surgery of itself does not equate to serious, but equally I consider a relevant consequence is the major spinal surgery that the plaintiff has undergone and the potential for more surgery.  Mr Vellore described how the plaintiff may require further surgery because of the risk of adjacent segment disease.  Mr Akil also set out cogent evidence about the risk of further surgery because of the accident-related surgery. Mr Sheard said the risk of further surgery because of adjacent segment disease was approximately 1-2% in the next ten years.  
283	Mr Siu also seems concerned about the risk of the failure of the lumbar disc replacement.  He said in his first report that the prognosis was fair to good in that the plaintiff has relief of his symptoms.  He then placed restrictions on activity that involved repetitive bending and advocated continuing core strengthening such as swimming.  He said “I do have some reservations that he had a disc replacement at 3/4 where there is severe facet arthropathy.  Further assessment may be necessary”.
284	Therefore, leaving to one side Mr Sui’s opinion on causation, the opinions as set out all express reservation about the need for further surgery because of the surgery to the spine that the plaintiff has had.
285	The plaintiff has endured pain and suffering consequences associated with the actual surgical procedures and the recovery from them.  The possibility of that occurring again is a consequences that cannot be ignored.  He is still a relatively young man.  The risk of further time off work for repeat major surgery in my opinion is a very considerable consequence, for someone who has already had three spinal surgeries.
286	Next, while I have some reservations about the plaintiff’s self-reported current level of symptoms, I accept that he continues to have symptoms because of the injury and the surgery that was required for that accident-related aggravation injury. I accept he will have difficulty with repeated activity that involves bending and will need ongoing core strengthening exercises. 
287	The plaintiff has only established limited pecuniary loss consequences to this point in time, being time off work because of the accident and the recuperation from surgery.  As the defendant established, the plaintiff’s affidavit evidence about pecuniary loss was unreliable.  Unrelated health issues have impacted his earnings, as have facts such as relocating to Melbourne.  The plaintiff is now working at about the level that he was before the accident. 
288	It is important to remember that I am determining rights for the purpose for a gateway proceeding.  As such, different considerations apply than those in a common law proceeding.  The plaintiff clearly had a vulnerable back.  His evidence about his earning capacity before and after the accident is unreliable.  He potentially still has unrelated health issues, including recent hip and shoulder problems, and ongoing issues with obesity, all of which would likely impact the assessment of damages.
289	Mr Vellore noted that the plaintiff’s severe neck and back symptoms were relieved after the surgery that he performed.  That is consistent with Dr Mathur’s opinion that his condition improved after the surgery with Mr Vellore.  But relief or improvement is not the same as complete resolution.
290	But here things become more nuanced because the defendant raised as an issue whether, overall, the plaintiff’s symptoms are now no worse than they were before the accident, when he had chronic back pain.
291	In my opinion, the accident-related injury caused the severe sciatica and upper limb symptoms, for which the plaintiff required repeat spinal surgery.  Any ongoing consequences are now due to the accident and the surgery and not the pre-existing injury.  Therefore, I do not accept the defendant’s argument that the fact the plaintiff’s symptoms may now be like what he had before the accident, means that that he does not have a “serious injury”.
292	In my opinion, the surgery the plaintiff has had for the injury, the residual symptoms, the risk of further surgery because of the accident, the limited loss of earnings to date and the potential for further lost earnings or lost earing capacity if he needs more spinal surgery, all amount to a very considerable consequences because of the accident-related aggravation injury to the spine.
Result
293	The plaintiff is granted leave to commence a common law proceeding for recovery of damages in respect of injuries sustained in the transport accident on 8 December 2022.
294	I shall hear from the parties as to consequential orders.