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

Case No. CI-21-01609

ROGAHAYEH SOLEIMANI	Plaintiff	
		
v		
		
TRANSPORT ACCIDENT COMMISSION	Defendant	

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JUDGE:	Her Honour Judge Tran	
WHERE HELD:	Melbourne	
DATE OF HEARING:	8 November 2021	
DATE OF JUDGMENT:	8 December 2021 	
CASE MAY BE CITED AS:	Soleimani v Transport Accident Commission	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1926		

REASONS FOR JUDGMENT
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Subject:	TRANSPORT ACCIDENT
Catchwords: 	Serious injury – spinal impairment – where pre-existing back pain – where no mention of neck pain in contemporaneous clinical notes.
Legislation Cited:	Transport Accident Act 1986
Judgment:	Leave granted

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr C Blanden QC with
Ms F Blair	Carus & Associates	
			
For the Defendant	Mr W Middleton QC with
Ms A Bannon	Wisewould Mahony	

HER HONOUR:

1	On Sunday 28 April 2018, Rogahayeh Soleimani was travelling in the front passenger seat of the family car to visit a friend in Dandenong.  Her husband was driving, and her three children were in the rear seats. Their car was stopped at a set of traffic lights. A truck failed to stop at the lights and ran into the car behind their car, which was then pushed forward into their car. Ms Soleimani says that the impact was so forceful that her head and neck moved forward and backward twice and her car was written off. She says she immediately had pain in her neck and back. 
2	Ms Soleimani says that she has suffered ongoing neck, back and shoulder pain since this time. 
3	Ms Soleimani is 34 years old. She was born and raised in Iran. She says she had an unhappy childhood due to her father’s “lifestyle choices”. By 19 years’ of age, she was married. A little over a year later she gave birth to her first son. In about 2012, she, her husband and her young son fled Iran. They first caught a flight to Kuala Lumpur and then to Indonesia, before taking a boat to Australia. They spent approximately three months in immigration detention on Christmas Island and then a further period in detention in Port Augusta in South Australia. In March 2013, she and her family were moved to community detention in Glenroy, Melbourne. 
4	Ms Soleimani’s daughter was born in April 2014 and a second son in August 2016. 
5	Ms Soleimani has struggled with her mental health since arriving in Australia. She suffered depression and anxiety during her third pregnancy, which continued after the birth of her second son. 
6	Ms Soleimani has also struggled with back pain over many years. This pain occurred predominately during her pregnancies but continued after each of her pregnancies as well. 
7	This is a serious injury application. Ms Soleimani claims that, as a result of the accident, she has suffered a serious long-term impairment of her spine within the meaning of paragraph (a) of the definition of “serious injury” in s93(17) of the Transport Accident Act 1986 (“the Act”). The defendant says that Ms Soleimani has not been seriously injured. It says that Ms Soleimani’s neck, back and shoulder pain was not caused by the accident; does not have an organic basis; and that, in any event, any consequences are not serious, in the sense that they are “very considerable” and more than “significant” or “marked”. 
Ms Soleimani’s evidence
8	Ms Soleimani says she “immediately” had pain in her neck after the accident.  She said she went to the general practitioner (“GP”) within three to four days in relation to both the injuries she suffered in the accident and in relation to her children.  She says that at this visit, her GP told her to wait for two weeks and if she and her son were still in pain then they could make a TAC application. 
9	Ms Soleimani says she thinks that her GP subsequently filled out the TAC claim form for her. She says, as a result, she received funding to attend physiotherapy treatment for both her neck and back. 
10	Ms Soleimani says in the months following the accident she experienced pain “from the top to the bottom” of her back but hoped it would go away. She says now, some three-and-a-half years later, she continues to live with daily pain and discomfort in her neck, back and shoulders. She says although the pain fluctuates in severity, she is never free from pain. She describes her current pain as “debilitating pain, mainly in my neck and referring into my shoulders, but also in my lower back”. 
11	Ms Soleimani says she also suffers severe headaches, usually when her neck pain is bad and, in more recent times, has suffered dizziness and a feeling like she may fall when holding her head in a downward-facing position. 
12	Ms Soleimani regularly attends her GP. She has completed three months of physiotherapy. She is not currently attending physiotherapy because TAC funding has ceased. She has also consulted a rheumatologist, Dr Victor Karlov. She says Dr Karlov advised her that she may need surgery, but said that she was too young at this stage. 
13	Ms Soleimani says that, because of the accident, she fell into a “deep depression” in March 2019, which led to her antidepressants being increased from 50 milligrams a day to 100 milligrams a day (although she stopped taking this in September 2019).  She says that, because of the accident, she was unable to cope mentally with the stress of her immigration status. She says her eldest son has also been affected by the accident and this in turn impacts on her own mental health. She says she is fatigued and irritable and snaps at her husband and children. She says that, whereas before the accident some of the time she would feel tired, nervous, hopeless, restless, depressed and worthless, now she feels like this all the time. 
14	Ms Soleimani says she continues to walk as advised by her doctor and physiotherapist but, on days when her pain is aggravated, she cuts these walks short. She says the neck pain causes difficulty sleeping and this in turn causes drowsiness and difficulty concentrating the next day. 
15	Around the house, Ms Soleimani says she finds it hard to pick up heavy pots and clean the shower.  Initially her husband helped with the housework, but in late 2019 he was injured in an accident with a lawnmower and then was unable to help.  She now does most of the household chores, including cooking, cleaning, laundry and grocery shopping. However, she must pace herself. She only cleans one room per day and does not keep the house as well as she used to. She gets her children to help with reaching high items and laundry. She gets either her husband or son to come with her for grocery shopping to carry the groceries. She says she used to love cooking for the family and regularly baked sweets and snacks for the children, but now is only able to cook very basic meals and no longer does any baking.
16	Ms Soleimani says she still drives, but only locally, and getting in and out of the car and reversing is hard because of her neck pain. She avoids driving on freeways. 
17	Ms Soleimani says the pain has impacted on her intimacy with her husband. 
18	Ms Soleimani says she is unable to play with her children and they are now too heavy for her to lift without aggravating her pain. When they hug her, she must tell them to be careful of her neck and shoulder.
19	Ms Soleimani says she used to enjoy bike riding with her family but has not gone bike riding since the accident.
20	Although she never had a big social life, Ms Soleimani says since the accident she has isolated and withdrawn herself from the community, and her headaches keep her home. 
21	Ms Soleimani says that she commenced a Certificate IV in Commercial Cookery before the accident. She pushed herself to complete it after the accident, however she does not think she is now able to work in hospitality because of the pain in her back, particularly her neck pain. She says she struggles to cook basic meals for her family. 
The medical evidence
Treating practitioners
22	Ms Soleimani consulted several GPs, including Dr Itihal Al-Tawil, Dr Akeel Alwaali and Dr Hassan Al-Kazali at the Glenroy Justin Avenue Medical Centre (“Glenroy practice”), both before and after the accident. 
23	Dr Alwaali initially treated her in relation to her TAC Claim. Dr Alwaali left the Glenroy practice and moved to the Kingsway Drive Medical Centre. For a period, Ms Soleimani continued to consult him at his new practice in relation to her TAC claim, however, the distance was too far and after some difficulty getting a GP to agree to provide her treatment in relation to her TAC claim, she ultimately returned to the Glenroy practice. 
24	A report was tendered from Dr Al-Tawil, a GP at the Glenroy practice.  Dr Al-Tawil diagnosed Ms Soleimani with ongoing neck pain radiating to both shoulders and arms, mid and lower back pain, right hip pain/bursitis, and anxiety and depression.  She said Ms Soleimani needed physiotherapy, a psychologist and a physician involved in her care, and ongoing psychotherapy from a psychiatrist. She said Ms Soleimani needed to learn to live with the pain and minimise the need for analgesia. She said Ms Soleimani had no work capacity in the foreseeable future. 
25	Ms Soleimani was also referred to Dr Victor Karlov, a rheumatologist. He first assessed Ms Soleimani on 1 February 2019. He noted that Ms Soleimani complained of “neck pain which radiates a short distance down the spine and into the entire right hand and into the left arm as far as the elbow”. He said that her neck movements were painful at the extremes, in both flexion, rotation and flexion extension. He noted she also complained of pain in her lower back and says she has poor flexion and was also tender over both trochanteric bursae. He saw her again in March 2019. He noted an MRI scan which showed a disc at C4-5 in contact with the cord but causing no myelomalacia or cord compression. He noted she remained tender over the trochanteric bursa and finds some suggestion of bursitis in an ultrasound of her hips.  He suggested an injection into the bursa but asks Dr Alwaali to explain this to her as “we are having real difficulties with communication”. 
26	Dr Karlov assessed Ms Soleimani again in September 2021 and provided a report. He diagnosed her with:
(a)	disc protrusion at C4-5 with spinal cord involvement “as evidenced by finger flexion and hyperactive reflexes”;
(b)	cervical radiculopathy;
(c)	soft-tissue injury to the lumbar spine;
(d)	bilateral trochanteric bursitis; and
(e)	post-traumatic stress and anxiety.
27	Dr Karlov said her prognosis is guarded and she has no realistic prospect of gainful employment, and little hope for recovery. He concludes:
“Mrs. Soleimani has had a severe life changing injury. She has difficulty with her domestic and social activities and suffers from anhedonia and clearly the injuries have been significant.” 
28	Reports were also tendered from two treating physiotherapists, both from Dallas Physiotherapy & Sports Injuries Clinic:
(a)	Ms Georgia Shaughnessy initially assessed her on 27 July 2018, which was 12 weeks after the accident. A report was tendered from her dated 22 October 2018. She says Ms Soleimani initially presented complaining of back pain bilaterally extending throughout the thoracic and lumbar region, some aggravation of coccygeal pain that had previously been an issue related to her pregnancies, and some neck stiffness with intermittent headaches. She says that over the course of treatment Ms Soleimani’s symptoms have varied, and that at the time of writing she was complaining more of shoulder pain and sacroiliac and lumbar discomfort. She noted that it seemed that Ms Soleimani was “somewhat unreliable with her exercises” and that as she was seeing no improvement of change following therapy, she was required to enforce a treatment break. Her “overall impression” was that Ms Soleimani had sustained fairly widespread soft-tissue injuries and concludes: 
“… I would expect her problems to gradually improve with time and compliance with exercise. Further investigation of the areas involved may uncover further issues that can then be managed appropriately or will give us further evidence to reassure [Ms Soleimani] that nothing serious is afoot … .”
(b)	Mr Paul McCann commenced treating Ms Soleimani’s cervical spine on 23 June 2021. He noted that it was difficult to provide fully-informed answers in his report, as he had only treated her in the last few weeks and her previous treating physiotherapist, Ms Shaughnessy, had now retired. He states that, in relation to Ms Soleimani’s cervical spine:
“… I find her current level of incapacity to be only moderately effected (sic). Ranges of motion were available to approximately 3 quarters of the normal expected full range and the major limiting factor in performing her domestic, personal and recreational activities would be her level of pain”. 
In relation to her prognosis, he states: 
“… I believe that [Ms] Soleimani will continue to require active intervention periodically and that these injuries will have an adverse effect on her abilities to perform duties involving sustained head and neck postures such as clerical duties involving keyboard use/computer use”. 
29	Finally, the defendant tendered three reports from Dr Juliette Hooper, a psychologist who has treated Ms Soleimani from around July 2018. Dr Hooper provided these three reports to Ms Soleimani’s GP between September 2018 and December 2019. Dr Hooper notes Ms Soleimani’s difficulties in the detention camps and in community detention; worries about the security of her residence; deterioration of her mood following the birth of her youngest child; lack of support; lack of certainty regarding her family’s future in Australia; her husband’s serious hand injury and waiting months for Centrelink payments. Ms Hooper does not refer, in any of her reports, to Ms Soleimani suffering any difficulties arising from neck or back pain, or the accident more generally.  
Plaintiff’s medico-legal experts
30	The plaintiff tendered reports from four medico-legal experts. 
31	Associate Professor Bruce Love is an orthopaedic surgeon who assessed Ms Soleimani once in person on 30 July 2019 and wrote one report. His diagnosis for Ms Soleimani is of a soft-tissue injury of the cervical spine. He notes that Ms Soleimani’s cervical spine does not have any specific restriction of motion, there are no neurological signs in either upper limb, and both shoulders have a full range of movement. He expresses the view that the findings of the MRI scan, which were relied upon by Dr Karlov, are only mild degenerative changes unrelated in terms of causation to the road traffic accident. Nevertheless, he accepts that Ms Soleimani is significantly compromised in terms of personal, domestic and recreational activities by her injury, and concludes that “[i]n all probability, her symptoms will diminish over a very extended period of time, but predicting a time span for such a reduction is not possible.” 
32	Mr Russell Miller is an orthopaedic surgeon who assessed Ms Soleimani once in person on 24 June 2021 and provided two reports; on 28 June 2021 and 8 September 2021. His diagnosis for Ms Soleimani is:
(a)	an injury to her cervical and lumbar spine which included musculoligamentous strain and aggravation of degenerative disease with no evidence of radiculopathy, neurological deficit or structural injury;
(b)	an associated chronic pain syndrome;
(c)	referred pain in her right shoulder from the cervical spine; and
(d)	rotator cuff tendinopathy involving supraspinatus and subscapularis tendons and partial thickness tear. 
33	Mr Miller says the relationship between the spinal and right shoulder injuries and the accident is “complex and multifactorial”. However, he concludes that her current clinical status is “substantially accident related”. In relation to work capacity, he says that, because of her spinal injury, she will have difficulty with repetitive bending, lifting and lifting of weights of 5 kilograms or greater. He also concludes that her restrictions are likely to be permanent.
34	Dr Richard Sullivan is a pain specialist who assessed Ms Soleimani by video link on 30 July 2021 and prepared two reports, both dated 30 July 2021. His diagnosis for Ms Soleimani is aggravation of cervical spondylosis and lumbar spondylosis and “onset of a chronic pain condition with clinical hallmarks of central sensitization”. He concludes that, because of the accident, she has no capacity for employment because of her chronic pain condition and cannot be expected to return to meaningful paid employment in the foreseeable future. He also conducted an impairment assessment and concluded that she has a whole person impairment of 5 per cent due to the impairment of her cervicothoracic spine and a whole person impairment of 5 per cent due to the impairment of her lumbosacral spine. He apportions 2 per cent of her lumbosacral impairment to Ms Soleimani’s pre-existing lower back condition. 
35	Finally, Dr Sullivan records that:
“Qualification of the diagnoses and impairment assessment should be confirmed with clinical examination conducted in person and as such I caveat this whole person impairment on the basis that clinical examination findings once they can be undertaken are consistent with the diagnoses of aggravation of cervical spondylosis and aggravation of lumbar spondylosis and consistent with the relevant DRE categorizations noted above.” 
36	Dr Michael Epstein is a psychiatrist who assessed Ms Soleimani on 5 September 2019 in person and on 6 August 2021 via Zoom videoconference.  In his first report, he diagnoses her with a chronic adjustment disorder with mixed anxiety and depressed mood. He said that she had suffered this condition for many years, but that it appeared to have become worse since the accident, partly because of the pain, and partly because of the effect of the accident upon her son. He assessed her as having a psychiatric impairment of 10 per cent, of which 3 per cent was secondary to her physical injury in the accident, and 3 per cent arose from her concerns over her son’s anxiety. In his second report, he maintains his diagnosis of chronic adjustment disorder with mixed anxiety and depressed mood and his assessment of her impairment at 10 per cent, but says that 4 per cent of this impairment was secondary to her physical injury in the accident, and only 2 per cent arose from concerns over her son’s anxiety. 
Defendant’s medico-legal practitioners
37	The defendant relied upon reports from two medico-legal practitioners.
38	Dr David Elder is an occupational physician who assessed Ms Soleimani once on 9 February 2021. He says that Ms Soleimani reported ongoing neck pain radiating into the right arm and “claims that the whole of her right hand is numb in a glovelike distribution which is non-organic”. He also says she does not complain of any lower back pain and has no radicular features. He notes that the radiological investigations do not show any abnormality that would preclude a return to abnormal activity and that there “is a complete lack of adverse clinical findings”.  His conclusion is that she is not impaired because of the transport accident at all.  His only diagnosis is of soft-tissue injuries to the neck, which would have resolved within a few weeks to months. He states that she does not have any incapacity for work, or for her activities of daily living. 
39	Mr Gary Speck is an orthopaedic surgeon who assessed Ms Soleimani on 4 August 2021. He conducts a thorough review of the other medical reports and clinical notes. He notes that Ms Soleimani had a history of back pain and depression prior to the accident. He notes that:
(a)	symptoms relating to the car accident are recorded for the first time in the clinical notes one month after the accident, and then only in relation to Ms Soleimani’s back;
(b)	she attended physiotherapy approximately three months after the accident and the symptoms recorded related predominately to Ms Soleimani’s back;
(c)	when examined by Associate Professor Love in July 2019, and Dr Elder in February 2021, she complained of neck pain, but not back pain;
(d)	there were no examination findings to suggest radiculopathy;
(e)	medical imaging of the cervical spine does not identify any spinal cord or spinal root compression; and
(f)	the distribution of limb pain was non-organic.
40	Mr Speck concludes that Ms Soleimani presents with “neck pain with referred upper limb pain unrelated to structural injury arising from the subject transport accident” and that her current symptoms in her lower back are “consistent with her pre-existing history”. He says that her presentation is “consistent with a chronic pain syndrome or somatic symptom disorder with pre-existing history of low back and coccygeal pain without evidence of radiculopathy”. He also says that “the prognosis for her current mental health condition and chronic pain syndrome/somatic symptom disorder should be sought from an appropriate expert”. 
Has Ms Soleimani suffered a spinal impairment as result of the accident?
41	The defendant submitted that:
(a)	any neck pain suffered by Ms Soleimani onset well after the accident and was not causally related to it;
(b)	Ms Soleimani suffered back, shoulder and coccyx pain before the accident which continued after the accident. This was not a result of the accident; and
(c)	I should not be satisfied that any shoulder pain was a consequence of a spinal impairment. 
Neck pain
42	Neck pain was the predominant symptom complained of by Ms Soleimani. I will therefore consider the extent to which I accept Ms Soleimani’s account of the development of her neck pain first, before considering the medical evidence on causation.
43	Ms Soleimani was not an easy witness. There were the usual challenges of interpretation, made more difficult by the fact that Ms Soleimani plainly had some understanding of English and at times answered questions without the assistance of the interpreter. She tended to shout her answers rather than speak them. Many of her answers were more akin to submissions referring to clinical records, rather than recollections from her own memory. She had a tendency towards melodrama and exaggeration in her responses.
44	However, I observed nothing in her demeanour to suggest that she was not an honest witness, doing her best to tell the truth (with some allowance for exaggeration and a symptom-focused approach). She has experienced significant trauma and stress over the last few years arising from her flight from Iran, time in immigration detention and visa uncertainty. I accept that this trauma, and her cultural background, may have impacted on the way she presented in Court and answered questions. I assess her evidence in that context. 
45	Ms Soleimani’s evidence in relation to neck pain was corroborated by her husband, who says that she began complaining of lower back, neck and shoulder pain shortly after the accident. In accordance with the SIA practice note, Ms Soleimani’s husband was not cross-examined. The defendant did not have the opportunity to test his evidence (particularly in relation to his failure to refer to Ms Soleimani’s prior back symptoms in his affidavit).  Nevertheless, his evidence does provide corroboration of Ms Soleimani’s account of experiencing at least some neck symptoms from shortly after the accident.  
46	The defendant submitted that Ms Soleimani’s evidence in relation to the onset of neck pain immediately after the accident and attending her GP three to four days after the accident was inconsistent with her GP’s clinical records and ought not be accepted. 
47	Ms Soleimani evidence was that she consulted her GP in the week following the accident with her three children to ensure that they had not suffered any injuries.  Ms Soleimani said that she believed she also complained of her own neck and back pain to her GP on this occasion. She said that she was told to wait a couple of weeks before making a TAC claim. There is no reference in the clinical notes tendered in evidence of this consultation (or any other consultation in the week after the accident). Ms Soleimani did consult her GP on 7 May 2017 and 21 May 2018, but there is no record of her reporting back pain in those consultations.
48	However, given she says she brought her children to this consultation, and seems to have been primarily concerned about the impact of the accident upon them, I accept that it is possible Ms Soleimani’s first visit to the GP after the accident was not recorded as a consultation in relation to Ms Soleimani, but in relation to one or more of her children. Given my general views as to Ms Soleimani’s honesty, and her specific recollection that she consulted the GP with her children, I accept that Ms Soleimani consulted her GP within a week of the accident but that this visit was not recorded in her clinical records. 
49	The first record of back pain in the GP’s clinical notes after the accident is on 24 May 2018. Under “History” the notes record “SHE HAS BACK PAIN”. Under “Actions:” it is recorded: 
“Letter Created – re. VIC WorkCover & TAC – Certificate of Capacity to .
Letter Printed – re. VIC WorkCover & TAC – Certificate of Capacity to .”  
50	Ms Soleimani gave evidence that her GP completed the TAC claim form. A “TAC Claim for Compensation Summary” was tendered. It referred only to “Back pain - mid to lower”.
51	On 19 June 2018, Ms Soleimani’s GP refers to “BACK PAIN , COCCYX PAIN SHOULDER PAIN” and to the creation of a referral to the physiotherapist. On 16 July 2018, it is recorded that “she has claim number booked with the physiotherapy”. There is no reference to neck pain in any of these clinical notes, nor in any subsequent GP clinical notes until 17 June 2019 (when there is a reference to “bursitis, mri c4/5”).
52	The clinical notes of the GP on 24 May 2018 are very brief. They simply state, “SHE HAS BACK PAIN” and refer to creation of a WorkCover Certificate of Capacity. There is no record of any physical examination or other objective observations, or any detail as to the nature of the back pain. More detail is provided on 19 June 2018, but the notes are still very brief. There is no record of any physical examination or other objective observations. There is a reference to back pain, coccyx pain and shoulder pain.  
53	Ms Soleimani’s first session with the physiotherapist was on 27 July 2018. This physiotherapist session was the first occasion on which it appears Ms Soleimani was comprehensively examined, and a detailed record taken of her symptoms.  Although the focus is upon thoracic and lumbar spine pain, there is also reference to “sometimes neck p bilat everyday a bit sometimes”. It also appears that the physiotherapist gave Ms Soleimani specific exercises for her neck in this session. 
54	Having considered all of these clinical records carefully, I am not prepared to reject the evidence of Ms Soleimani (corroborated by her husband) that her neck pain onset immediately after the accident on the basis that it conflicts with these records.  
55	The GP’s notes are very brief and are plainly not an exhaustive history. They contain no record of any objective observations or examination. It is true that there is no reference to neck pain in the GPs clinical notes until 17 June 2019. However, I accept that it is possible that her GP did not take comprehensive notes of all Ms Soleimani’s symptoms. I also accept that her GP may not have separated out back pain and neck pain in a context where the pain extended from her coccyx, up her back and to her shoulder. This view is fortified by the fact that Ms Soleimani did report neck pain on her first consultation with the physiotherapist, almost a year before neck pain first appears in the clinical notes of her GP. 
56	Ms Soleimani‘s first visit to the physiotherapist after the accident was on 27 July 2018. This appears to be the first occasion on which a detailed history was obatined and examination was performed. In the clinical notes for this consultation, Ms Soleimani is recorded as experiencing neck pain every day.  Although this was not until 12 weeks after the accident, given her financial situation, no criticism can be made of Ms Soleimani for not obtaining treatment from a physiotherapist until funding was obtained from the TAC.
57	Accordingly, I accept that Ms Soleimani’s neck pain onset immediately after the accident and that she mentioned this to her GP within a week, but was told to come back in a couple of weeks if it did not settle. I also accept that Ms Soleimani has suffered ongoing neck pain since the accident. 
58	Having said that, it is apparent from the clinical records that Ms Soleimani’s predominant issues in the weeks and months following the accident were with her lower to middle back. The neck pain which Ms Soleimani suffered in the few months after the accident, although present, must have been a relatively minor component of her overall pain. Otherwise, it would have been recorded in the GP’s clinical notes prior June 2019; would have featured more prominently in her treating physiotherapist’s notes and report; and would have been included in the TAC Claim summary. 
59	I turn, then, to consider the medical evidence on the cause of the neck pain. 
60	Given my factual findings, the history taken by Associate Professor Love – that there was immediate onset of “severe neck pain” after the accident – is not correct. I have found that neck pain, whilst present, was a relatively minor component of Ms Soleimani’s overall pain after the accident. Associate Professor Love also describes the accident as a “high speed accident”. Again, this is not borne out by the evidence, which was of Ms Soleimani’s car being struck from behind, while stationary at the lights, by another car which had also been stationary, until pushed forward by a truck. Ms Soleimani’s car was not pushed forward so far as to strike the car in front of it. 
61	In this context, I do not consider Associate Professor Love’s opinions to be reliable. 
62	Dr Karlov, Ms Soleimani’s treating rheumatologist, diagnoses disc protrusion at C4-5 with spinal cord involvement and cervical radiculopathy. This diagnosis is rejected by all three medico-legal orthopaedic surgeons. On this point, I prefer the views of the expert orthopaedic surgeons.
63	In his report, Mr Speck conducts a comprehensive and detailed review of the clinical records. He concludes that Ms Soleimani suffered a soft-tissue injury to her lower back in the accident, which would have resolved within 6 to 12 weeks. He does not accept that Ms Soleimani’s neck symptoms are related to the accident.  By a process of exclusion, he proffers the opinion that those symptoms result from a chronic pain syndrome or somatic symptom disorder (unrelated to the accident), in relation to which he is not the appropriate expert. 
64	Although he does not state this expressly in his report, Mr Speck’s findings that the only injury suffered by Ms Soleimani in the accident was to her lower back, implicitly entails a rejection of her account of having suffered neck pain since the accident. Having considered the clinical records and the evidence of Ms Soleimani and her husband, I have come to a different conclusion. Further, Mr Speck does not consider or exclude the possibility of a pain syndrome of organic origin, of the kind described by Dr Sullivan, in his report. I also note that psychiatrist, Dr Michael Epstein, who does have the expertise to diagnose a somatic symptom disorder, does not diagnose Ms Soleimani with any such disorder. I do not accept the opinion of Mr Speck in relation to the causation of Ms Soleimani’s neck pain. 
65	Dr Elder accepts that Ms Soleimani may have suffered minor tissue injuries to the neck in the incident, but says that this would have resolved within a few weeks to months. He concludes that there is a “complete lack of adverse clinical findings” and that Ms Soleimani’s prognosis should be excellent. The key difficulty with this opinion is that, while it explains Ms Soleimani’s initial neck symptoms, it provides absolutely no explanation for Ms Soleimani’s ongoing neck symptoms which I am satisfied as a matter of fact have continued now for more than three years. I do not accept Dr Elder’s opinion in relation to Ms Soleimani’s neck. 
66	Mr Miller’s reports accurately describe the circumstances of the accident and notes that the car was drivable, and Ms Soleimani’s husband was able to transport her and the children home. Mr Miller also notes that she attended the GP approximately one week later.   
67	Mr Miller diagnoses Ms Soleimani with:
“… an injury to the cervical and lumbar spine, which includes Musculo-ligamentous strain and aggravation of degenerative disease.
 … associated with the development of a chronic pain syndrome … .” 
68	The defendant submitted that it was implicit in the subsequent inclusion of “chronic pain syndrome” under the heading “mental state” that Mr Miller was referring to a non-organic chronic pain syndrome which was not a serious long-term impairment or loss of a body function within the meaning of paragraph (a) of the definition of “serious injury”. I am not prepared to draw this inference. Further, Mr Miller, in his supplementary report, makes it clear that there is “organic pathology in the spine accounting for the client’s symptoms”. 
69	The defendant then criticised Mr Miller for failing to specify what that organic pathology was or to explain the reasons for his diagnosis. This is a valid criticism.  It is difficult for the Court to adequately assess the opinions of a medical expert without adequate explanation of the reasons for the diagnosis. This is particularly so in a serious injury application where there is no opportunity for cross-examination. 
70	The defendant also submitted that the range of motion in Ms Soleimani’s cervical spine recorded by Mr Miller was inconsistent with her presentation in surveillance footage. I note, however, that Ms Soleimani’s pain and range of motion was variable. For example, in her examination by Associate Professor Love, he observed her not to have any specific restriction of motion. Surveillance footage is necessarily no more than a snapshot in time. It does not follow from the fact that Ms Soleimani demonstrated a greater range of motion on the day of the surveillance footage than on the day of her examination by Mr Miller that I should reject her evidence, or his.
71	Dr Sullivan reviewed Ms Soleimani once, by teleconference. Despite not performing a physical examination, he diagnoses Ms Soleimani with aggravation of cervical spondylosis and concludes that she has the:
“… clinical hallmarks of central sensitization causing persisting pain in the neck especially the right upper limb and an intermittent but recurring pain in the low back and right lower limb.”
He does not explain what those clinical hallmarks are. Again, the defendant’s criticisms of this lack of explanation for the diagnosis are valid. 
72	None of the medico-legal expert reports are particularly compelling. For the reasons given above, I do not accept the opinions of Mr Speck, Dr Karlov, Associate Professor Love or Dr Elder. I also have concerns about the lack of adequate explanation for the opinions of Mr Miller and Dr Sullivan. I am conscious that Ms Soleimani bears the onus of proof. On the other hand, I am satisfied, as a matter of fact, that there is a temporal nexus between the accident and the onset of neck pain, and that this neck pain has continued (and indeed worsened) to this day. In this context, the reports of Mr Miller and Dr Sullivan, taken together, provide the best explanation for Ms Soleimani’s symptoms. I am satisfied, on the balance of probabilities, that Ms Soleimani suffered soft-tissue injuries to her neck and lower back in the accident, as well as aggravation of pre-existing degenerative changes, which have led to a pain syndrome of organic origin. 
Back pain
73	Ms Soleimani relied upon both back and neck pain as a consequence of the impairment of her spine. In relation to back pain, Ms Soleimani admits having back pain prior to the accident, but says that the pain now is different. In particular, she says that her pain was previously around the site of the injection she had for her caesarean section, rather than near the coccyx. 
74	There are several references to back pain in the clinical notes of her GP in the year prior to the accident, including to “TAIL BONE PAIN”. It also appears that she was referred for an x-ray of both her lumbosacral spine and coccyx on 6 September 2017. The records of her physiotherapist in the month prior to the accident record “long standing back pain” in the L5-S1 region.  
75	I accept that Ms Soleimani genuinely believes her back pain to be different now.  However, in the context of a long history of lower back pain (which appears to include coccyx pain) and the predominance of neck pain in her current symptomology, I am not satisfied that her recollections are reliable. I am not satisfied that Ms Soleimani’s lower back pain has significantly worsened as a result of the accident. 
Shoulder pain
76	Ms Soleimani did not rely on her shoulder pain as a separate impairment of a body function. She only relied upon shoulder pain insofar as it was referred pain from her neck. 
77	In relation to Ms Soleimani’s shoulder pain, Mr Miller identifies “a specific shoulder pathology involving the acromio-clavicular joint, rotator cuff and capsulitis”. He attributes half of Ms Soleimani’s shoulder pain to this specific shoulder injury and half to “referred pain from the cervical spine and manifestation of a chronic pain syndrome”. He does not explain how he arrives at the division. Mr Speck describes Ms Soleimani’s shoulder pain as referred pain from her neck. Dr Sullivan ascribes the shoulder pain to her chronic pain condition. 
78	I accept Mr Miller’s uncontradicted evidence that there is specific pathology in Ms Soleimani’s shoulder. However, it is very difficult in this context to separate out shoulder pain which is attributable to impairment of Ms Soleimani’s spine (and so may be relevant to this application) and shoulder pain which is attributable to this specific shoulder injury (and so is not relevant to this application). I do not find Mr Miller’s bare assertion that it can be split 50/50 helpful, particularly given there has been no differentiation between types of shoulder pain in Ms Soleimani’s evidence or recorded history. On balance, I am not satisfied that Ms Soleimani’s shoulder pain is a consequence of a spinal impairment.  
79	I note, for completeness, that the defendant submitted Ms Soleimani had shoulder pain prior to the accident. The defendant relied upon her GP’s clinical notes of 9 October 2017, which record under the heading of “Musculo-Skeletal:” that there was “Bilateral, shoulders full r om”. The defendant relied upon this as a report of shoulder pain. I am not satisfied that this brief note is a record of shoulder pain. In fact, what appears to be recorded on these notes is that the shoulders have full range of motion. Under the heading “Visit type:” the GP records “chest pain , sob , numbness , l arm”. Ms Soleimani says that what she experienced previously was left arm pain rather than left shoulder pain. These notes are consistent with her evidence.
Is Ms Soleimani’s spinal impairment serious and long-term?
80	I turn, then, to consider whether Ms Soleimani’s neck pain (taken alone) satisfies the requirements of a serious injury. 
81	As I have already noted, Ms Soleimani did have a tendency to exaggerate and catastrophise her symptoms. I do not accept that the neck pain she suffers can fairly be described as “debilitating” pain. Such a description is not consistent with her presentation in surveillance footage. It is also not consistent with the reports of her psychologist, who does not refer to this pain at all. 
82	However, I do accept that Ms Soleimani was a generally honest witness, who described her symptoms and their impact on her life to the best of her ability. I accept that she suffers daily pain in her neck of varying degrees of severity. I accept that this pain is significant enough to require strong prescription pain relief.  I accept that she has attempted to cope without this medication, but has been unable to do so.
83	I have viewed surveillance footage of Ms Soleimani shopping for groceries, attending a soccer match and supervising her children at the playground.  Although she demonstrated reasonably good mobility in this footage, I also observed that she relied upon another person to carry a full bag of oranges; had her son load the groceries in the car and return the trolley; maintained an upright posture while her small children were near; spent time sitting alone in her car during her son’s soccer match; and did not participate in her children’s playground activities. These observations are all consistent with her evidence that she suffers ongoing neck pain which impacts on her daily life. 
84	In particular, I accept that this pain has a severe impact on Ms Soleimani’s capacity to care for her home and her children as she would like.  
85	Although Ms Soleimani does the majority of the housework, I accept that this is because she has no other choice – she is a temporary visa holder with three young children and a husband who is also injured.  In her words: 
“… I have three children. I am responsible for three children…Whether I can or cannot I am forcing myself regardless of the pain to do this because I am looking after three children.  If I can’t do it and my husband can’t do it, who is going to look after them?”
86	I accept that to perform this role, Ms Soleimani must pace herself, cleaning only one room per day. I accept that she is unable to complete tasks to her previous standard and that she does the bare minimum ꟷ for example no longer baking special treats for the children. I accept that she requires help from her husband and children with tasks such as carrying groceries, hanging out the laundry or reaching high items.  
87	I accept that, as a result of her neck pain, Ms Soleimani is barely coping with looking after her house and her children and that she could not currently work outside the home. She has lost the chance that she could utilise her Certificate IV in Commercial Cookery in paid employment.
88	I accept that Ms Soleimani’s neck pain impacts upon her capacity to drive, particularly on freeways, due to the difficulty of freely turning her neck.
89	I accept that Ms Soleimani’s neck pain impacts on her sleep and that her broken sleep in turn causes drowsiness during the day.
90	I accept that, as a result of Ms Soleimani’s neck pain, she must be very careful in her physical interactions with her children. She is unable to play with them as she would like, unable to enjoy bike riding with them and must instruct them to be careful when hugging her.
91	I accept that Ms Soleimani’s neck pain (and the consequences of that pain) is chronic and is likely to continue for the foreseeable future. 
92	I accept that Ms Soleimani’s neck pain, and the consequences described above, are very distressing for Ms Soleimani and have had a very negative impact on Ms Soleimani’s wellbeing. However, given the reports of her treating psychologist, I do not accept that her neck pain symptoms, specifically, have led to a significant ongoing deterioration in her mental health. 
93	Having considered all of the above matters, I am satisfied that, as a result of the accident, Ms Soleimani suffers from an impairment of her cervical spine, which is both long-term and serious, in the sense that it is “very considerable” and more than “significant” or “marked”. Caring for her home and her family is currently Ms Soleimani’s principal endeavour. As a result of her neck pain, her capacity to do so has been very considerably impacted. She has also lost the chance to engage in productive employment outside the home. 
94	I will grant leave to bring proceedings for damages and hear from the parties on the question of costs.

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Certificate
I certify that these 24 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 8 December 2021.
Dated: 8 December 2021

       Susan Thomas
Associate to her Honour Judge Tran