Bol v Victorian WorkCover Authority
[2025] VCC 642
•27 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised |
Case No. CI-24-03665
| JOHN AUAK MADUT BOL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 March 2025 | |
DATE OF JUDGMENT: | 27 May 2025 | |
CASE MAY BE CITED AS: | Bol v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 642 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – injury to the spine – pecuniary loss consequences
Legislation Cited: Workplace Injury Rehabilitation Compensation Act 2013
Cases Cited:Margripilis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15; The Herald & Weekly Times Ltd & Anor v Jessop [2014] VSCA 292; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260
Judgment: Leave granted to commence a common law proceeding for pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Bailey with Ms S Fernando | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr L Allan | Russell Kennedy Lawyers |
HIS HONOUR:
Background of the plaintiff
1John Bol (“the plaintiff”) was born in South Sudan and (notionally) has a date of birth in 1978.
2The plaintiff completed his schooling in South Sudan and then worked, including in construction and driving a forklift. In about 2001, because of civil unrest, he left South Sudan for Egypt, where he may have done some work. He migrated to Australia as a refugee in March 2004.
3After migrating to Australia, the plaintiff completed English language tuition, including a Certificate III in English from a TAFE College. By 2010 he had completed a Diploma of Management, but he has never sought work related to that qualification.
4During 2017 the plaintiff commenced a Bachelor of Community Development at Victoria University, Footscray, on a part-time basis. He intended to complete that course and look for related work, such as a community support worker.[1] The course involved completing ‘units’ and when he was undertaking a ‘unit’ he spent on average two days a week at university.[2]
[1] Transcript (“T”) 23, Line (“L”) 16-18
[2] T 15, L 24
5In Australia, apart from study, the plaintiff had intermittent, casual employment, through labour hire arrangements, undertaking labouring and forklift work.
6The plaintiff’s earnings in Australia are not well documented. He provided a taxation summary for each of the 2019, 2020 and 2021 financial years.
7For the financial year 2019, the plaintiff’s only source of income was through Centrelink, probably Austudy payments. For the financial year 2020, in addition to Centrelink benefits, he earned $12,304 from casual employment. For the financial year ending 2021, in addition to Centrelink payments, the plaintiff earned $11,045 from casual employment.
The better paid employment
8In December 2021, the plaintiff obtained casual employment with a company named ACP HR Pty Ltd, to perform work for another company called Advanced Circular Polymers Pty Ltd. The two companies appear to be related and for simplicity I shall refer to them as “the employer”.
9By the time the plaintiff commenced working for the employer, he had deferred his studies at Victoria University, apparently because of COVID. He said in his oral evidence that by the time he deferred his studies, he was about halfway through his Bachelor of Community Development.[3]
[3] T 21, L 17
10The casual employment with the employer turned out to be the best paid employment that the plaintiff has had in Australia and certainly more than he had earned in the 2019, 2020 or 2021 financial years.
11The work with the employer was regular, casual work, doing labouring and forklift driving. The plaintiff worked fluctuating hours, including pay periods where he worked more than the ordinary full-time hours, with overtime and some weekend work.
12An unintended happy side effect of COVID was that the plaintiff was able to achieve his highest earnings. An unhappy side effect was the interruption to his studies.
13There is no reliable evidence of when the plaintiff would have resumed his studies at Victoria University were it not for the accident. The inference from his evidence was that the course was paused because of COVID restrictions, but there is no objective evidence of that being the case. As mentioned, in his oral evidence he said he deferred his studies, which suggests that the course may have continued despite COVID, perhaps by remote learning.
14As it had taken the plaintiff three years to finish half the course, it is likely that he would not have finished his studies until 2024 or 2025 at best, allowing for a COVID interruption and then a return at some stage to part time study. The plaintiff simply said it was his intention to resume part-time study and part-time work,[4] but gave no useful evidence about when that might have happened, if he had not been injured.
[4] T 20, L 10-27
Injury with the employer
15Based on pay records, the plaintiff commenced with the employer in late September or early October 2021.
16In his first affidavit sworn on 23 January 2024,[5] the plaintiff described his work with the employer as follows:
“17.I generally worked six days per week for the employer, from Monday to Saturday. I also did overtime at times.
18. The employer is a recycling company. The main job I performed was removing wires that were wrapped around recyclable waste, before that waste went into a machine that shredded it into small pieces. The recyclable waste moved along a roller, and I was required to cut the wires with scissors and then pull the wires out before the waste went into the machine. The wires were sharp and I needed to wear thick gloves and face protection. It was physically demanding to pull out the wires, and I was required to work quickly.
19. My duties for the employer also involved operating a forklift. From time to time, I did other jobs like picking up rubbish and putting it in a bin, or doing other workers’ jobs if they were away.
20. However, most of my time at work was spent cutting and pulling out wires. Often, I would spend hours cutting and pulling out wires, then I would get a short break for ten or 15 minutes, and then I would continue cutting and pulling out wires for hours.”
[5][5] Plaintiff’s Amended Court Book (“PCB”) 21
17To this point in the narrative, there is no real dispute about the facts set out. But perhaps from here on, there is disagreement between the parties.
18As I shall come to, one area of disagreement is how or when the plaintiff suffered injury with the employer, at least for a decision about the extent of leave that should be granted to the plaintiff to commence a common law proceeding.
19The plaintiff described in his first affidavit the circumstances in which injuries arose with the employer as follows:
“21.In about late February 2022, I began to experience increasing pain in my lower back while I was pulling wires out at work. I think I continued working for about a week but, by the weekend, it had become a lot worse. I remember finishing a shift and my back was in pain. I think that was on or about 26 February 2022. The pain increased that evening and, the next morning, I struggled to get out of bed due to back pain. I recall that I called my supervisor on the Monday, which I believe was on or about 28 February 2022, and reported my symptoms.”
20But during cross examination, when it was put to him that the pain came on, when pulling wires, it was on a particular day, 26 February 2022, to which the plaintiff said “Yes”.[6] The cross examiner then followed up by suggesting to the plaintiff that there had not been pain before that, it was just on that day pulling the wires and again the plaintiff said “Yes”.[7]
[6] T 41, L 26
[7] T 41, L 30
21Next, the plaintiff was asked if he had submitted a claim based on that day of injury and he said “Yep”, and then the cross examiner said to him that was because that was the day on which he was injured and again the plaintiff said “Yep”.[8]
[8] T 42, L 1-3
This proceeding
22This is a “serious injury” application brought by the plaintiff pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) in respect to the claimed low back injury suffered with the employer.
23The plaintiff relied on a physical injury to the spine as the “serious injury”, specifically described as the aggravation of lumbar spondylosis.
24The defendant accepted that the plaintiff had suffered an aggravation injury to his lumbar spine because of the work with the employer.
25While the injury was accepted as the aggravation of underlying degenerative change, this is not a case where the plaintiff had pre-existing symptoms or impairment because of the underlying condition. Therefore, any current impairment consequences can be ascribed to the aggravation injury.
26The parties tendered evidence from court books, including affidavits that the plaintiff relied on, claim documents and medical evidence. The plaintiff gave oral evidence. I have considered all the tendered evidence, together with the transcript of the plaintiff’s oral evidence.
The pain and suffering concession: what is in dispute
27In opening, the defendant said it put in issue “range” as far as pain and suffering was concerned. However, at the commencement of closing submissions, the defendant conceded that the plaintiff had suffered a “serious injury” to his lumbar spine.[9]
[9] T 65, L 21-22
28The concession by the defendant entitles the plaintiff to the leave of the Court to commence a common law proceeding for pain and suffering damages.
29The defendant persisted with its position that the plaintiff should not be given leave to commence a proceeding for pecuniary loss damages.
30About pecuniary loss, counsel for the defendant said in closing that, as foreshadowed in opening, issues for determination arose as to “without injury” earnings and “with injury” earning capacity in the relevant six-year window.[10]
[10] T 65, L 24-29
31Broadly, the defendant highlighted the plaintiff’s limited earnings in the financial years before he started with the employer, as well as the fluctuating nature of his casual earnings with the employer, together with the evidence it relied on of a retained work capacity, in support of the contention that the plaintiff was not entitled to commence a proceeding for pecuniary loss damages.
32In effect, the defendant submitted that properly analysed, on the evidence the plaintiff had failed to establish the requisite loss of earning capacity of 40 per centum or more as per ‘the statutory formula’.
33Next, as a secondary issue, the defendant put in issue the extent of the grant of leave to commence a common law proceeding.[11] As counsel for the defendant said in opening: “there’s no issue as to the occurrence of an injury, but in the defendant's submission it’s an injury on a particular day”.[12]
[11] T 78, L 29-30
[12]T 6, L 9-11
34The defendant submitted that the leave of the Court should only be for injury suffered on a specific day. It submitted that while the plaintiff may have attempted to put a case based on injury throughout the course of employment, his oral evidence was of injury on a specific day, namely 26 February 2002.[13] While the defendant acknowledged that the evidence was not of a specific event, it submitted that the evidence was of injury suffered on a particular day.[14]
[13] T 78, L 30-31; T 79, L 1-4
[14] T 81, L 20
35Therefore, the defendant submitted that if leave was given for pain and suffering only (as conceded) or for pecuniary loss, the Court was required to adjudicate whether leave be granted to commence a common law proceeding based on the general nature of the plaintiff’s duties, or for injury suffered on a specific day.
Issues for determination
36Therefore, for the purpose of an analysis as to whether the plaintiff is entitled to commence a proceeding for pecuniary loss damages, the issues for determination are:
(a) the calculation of the plaintiff’s “without injury” earnings for the purpose of the statutory formula;
(b) the calculation of the plaintiff’s “after injury” earning capacity for “suitable employment”.
37Then there remains the secondary issue whether the plaintiff suffered injury throughout the course of his employment with the employer, or whether the grant of leave to commence a proceeding should be confined to 26 February 2022.
Credit
38This is not a case in which the plaintiff’s credit is really an issue.
39The defendant said it did not make any submissions impugning the plaintiff’s credit, save to say that in its submission his perception of disability and incapacity was greater than his objective disability or incapacity.[15]
[15] T 71, L 24-28
40Broadly, the plaintiff appeared to do his best in the witness box to answer questions asked of him, including at times when he required the use of an interpreter. Overall, I am satisfied that he was a reliable witness. Any perception by him of disability greater than that revealed by the objective evidence is not substantial and not material to the result.
Evidence
41I shall set out in sufficient detail the relevant evidence for a consideration of the issue of loss of earnings. I shall then set out the relevant legal principles and analyse the evidence by reference to the applicable legal principles.
42I do not propose to set out a lot of what the plaintiff said about pain and suffering consequences, given the concession by the defendant. But it should not be forgotten that he has a “serious injury” because of a range of impairment consequences caused by pain and interference with daily activity.
The plaintiff’s affidavit evidence
43The plaintiff swore two affidavits in support of this application, setting out the circumstances of injury with the employer, the claimed level of pain and impairment consequences suffered by him, as well as restrictions for work.
44In his most recent affidavit sworn 21 February 2025,[16] he set out ongoing symptoms in his spine. He described having completed a pain management program but otherwise remaining under the care of the general practitioner, Dr Oludare, and having been referred for further specialist opinion. He described using the medications Lyrica and Endep daily and Nurofen or Panadol as needed. He said he had ongoing back pain and leg pain that comes and goes.
[16]PCB 30
45The plaintiff described restrictions for bending, lifting, squatting, twisting, sitting and standing. He described some difficulty with sleep and daily activity.
46Relevant to this issue of loss of earnings, he set out how he had not returned to any work or study. He responded to jobs set out in what he described as “the IPAR reports dated 17 April 2024 and 20 February 2025”, which are reports commissioned by the defendant about “suitable employment”. He noted how that other than forklift driving he had not performed any of the jobs set out in those reports. He said that work that involved prolonged sitting, standing, bending, squatting and driving would now be work that he would struggle to perform. He said he “had basic computer skills but that’s about it”.[17]
[17] PCB 35
47The plaintiff also said that he might be capable of some of these tasks for a short period, but he knew his low back pain would progressively increase and he would have to stop. He said that he would likely have to rest the following day. Overall he said about a return to work that “I believe I would not be a reliable and consistent worker”.[18]
[18] PCB 36
Cross examination
48The plaintiff’s oral evidence was mostly directed towards the issue of pecuniary loss. He was challenged broadly in cross examination about the extent of symptoms, but the defendant, appropriately, did not specifically challenge the plaintiff about the pain and day-to-day impairment consequences as set out in his affidavits.
49The plaintiff was cross-examined about his studies before the accident and how he juggled study with work. As mentioned, the plaintiff said that he generally attended university on average for two days a week when studying a unit.
50In respect to the relatively low level of earnings before he deferred his studies, the plaintiff explained how he had less time for work when studying, but more time when between units. He attempted to convey the impression that he was effectively available for full-time work when studying, although the taxation summaries would not seem to support that proposition. He did accept that the level of earnings up until COVID were reflective of work that he was offered at a time when he was studying.[19]
[19]T 18
51The plaintiff was cross-examined about his intention to return to study and seek employment consistent with a Bachelor of Community Development. He said that his current plan was to return to study at some point, having deferred his studies more recently until 28 July 2025. The plaintiff’s evidence about his intention to return to study was a little difficult to follow. Initially his evidence suggested that he would return to study but later qualified that. He said that issues to do with his back pain, the medicine he took for that and waiting for this case to be over, were reasons why he had not returned to study.[20]
[20]T 25, L 6
52The plaintiff was cross-examined about whether he could now undertake sedentary-type work. He was asked whether his doctors had recommended that he find a seated job and he said “no”.[21] The plaintiff then said he did not think there was any amount of study that he could undertake at the moment.[22]
[21]T 27, L 26
[22]T 28, L 4
53The plaintiff confirmed that since being injured he had not looked for any work at all and had not tried to do any study or courses at all.[23] When asked why not, he explained that he had medical appointments, including physiotherapy, and that he simply did not have time at the moment.[24]
[23]T 30, L 26-28
[24]T 31, L 1
54The plaintiff was cross-examined about various job options including those consistent with employment as a community worker. He said he had not done any research himself about the sorts of wages that he could earn currently if in such a role.[25] He confirmed that he still drove. Broadly, he accepted that intellectually he had a capacity for work or for study. He agreed he had basic computer and email skills.
[25]T 44, L 23
55A theme of the plaintiff’s evidence during cross examination was that he would now have difficulty for work involving sitting or standing for extended periods. It was put to him that if he could rotate his posture, as he had been doing in Court, there would be no reason why he could not be in an office environment or an administrative environment for 6-8 hours a day. When asked whether he agreed or disagreed with that proposition he said “yeah, agree with that”.[26]
[26]T 49, L 11-12
Re-examination
56In re-examination the plaintiff was asked what it was about his back pain which would make it hard for him to study. He said he still had chronic pain in his back and had “been keeping taking medicine for reducing pain” and “if I don’t take medicine, the pain go up”.[27]
[27]T 53, L 11-14
57He was asked if he would not have any difficulty if he had to sit down and do a test for 30 minutes. He said “yes, I feel pain on my back, I can sit longer or I can stand up, the same thing, with my back pain, yeah”.[28]
[28]T 54, L 14-17
58Next, the plaintiff was asked whether if he did not have all the various medical appointments that he is now attending, whether he thought he could do any work at the moment with his back. He said “yeah, yes” and that “the pain is still the same, but I can work, because when the back pain – yeah”.[29]
[29]T 55, L 14-17
59The plaintiff was re-examined about various jobs. He described how he can type on a computer but not quickly.[30]
[30]T 58, L 25
Conclusions from the plaintiff’s evidence
60First, as mentioned, the plaintiff presented as a credible witness. Having said that, on a few occasions he did not directly answer what he was being asked or gave a slightly obtuse answer. It is likely that the fact that English is an additional language for him and his unfamiliarity with the court process explain any ambiguity or discrepancies in his oral evidence.
61Second, despite some language barriers, the plaintiff presented as an educated and intelligent man.
62Third, the plaintiff’s evidence about his computer and literacy skills is limited. Overall, the evidence is that he is a man with sufficient computer and literacy skills to study a tertiary course and to undertake sedentary or office work. The evidence is that if he did not have a back injury he would have the intellectual capacity to finish his studies and work, for example in the role as a Community Worker as relied on by the defendant.[31]
[31] Defendant Court Book (“DCB”) 52
63Fourth, the plaintiff has again deferred his studies, but that appears to be for a range of reasons, including the time taken up with this case. He did not go so far as to suggest that his back injury will make it impossible for him to return to study.
64On this topic, it should be remembered that the plaintiff has the overall evidentiary onus, and he tendered little useful evidence from Victoria University for a consideration of what was involved in a Bachelor of Community Development, including whether he had the option of remote learning, which obviously would give him a greater degree of flexibility.
65Fifth, based on his oral evidence, in conjunction with the medical evidence, which I shall set out in a moment, the plaintiff’s back injury is not at a level that precludes him from any “suitable employment” with injury. He has what could be described in lay terms as a “light work” back. With appropriate restrictions, I consider that he is fit for ‘suitable employment”.
The plaintiff’s medical evidence
66Turning then to the medical evidence, much of that evidence is part of the narrative but otherwise now dated and not much help for a current assessment of loss of earnings consequences.
Dr Edward Oludare
67Dr Oludare is the plaintiff’s general practitioner. He provided several short reports confirming the work-related injury. In a report of 23 September 2024, regarding the prognosis, he simply described the plaintiff’s ongoing need for an up-to-date MRI.[32]
[32]PCB 41
68Dr Oludare’s reports are of little assistance for a consideration of current impairment consequences. No doubt to overcome that evidentiary deficiency, the plaintiff tendered a medical certificate that Dr Oludare provided to Centrelink on 18 February 2025. That certificate described ongoing low back pain. It said the plaintiff could not perform any work or study for the period 28 February through until 28 September 2025.
69There is a limit to the use that can be made of a medical certificate, without any useful evidence from Dr Oludare as to his reasons for issuing such a certificate, the facts he relied on, including his understanding of the plaintiff’s current impairment consequences, for certifying no work capacity from 28 February until 28 September 2025.
70I have had the benefit of the plaintiff’s affidavit and oral evidence, together with the other tendered evidence. The medical certificate from Dr Oludare alone is not proof that the plaintiff is now unfit for “suitable employment” or that he satisfies the test for loss of earnings as set out in the Act.
Dr Mohammed Awad
71Dr Awad is a neurosurgeon and spinal surgeon who assessed the plaintiff at the referral of Dr Oludare. There are two short letters dated August 2022[33] from Dr Awad back to Dr Oludare that confirm a diagnosis and a need for conservative treatment by a pain specialist, but do not assist much when it comes to a current assessment of work capacity.
[33] PCB 42 and 43
72Next, Dr Awad reported to the plaintiff’s solicitors on 11 December 2024.[34] That report was provided after a request from the plaintiff’s solicitors dated 6 December 2024. Dr Awad then reviewed the plaintiff on 11 December 2024. Whether that review was in the capacity of a treater, or a medico-legal examiner is unclear. There is no evidence that the review was because of a fresh referral from the Dr Oludare.
[34] PCB 47
73In any event, in his report Dr Awad said the plaintiff continued to be debilitated by back pain and leg pain, and that he was still not able to work because of ongoing symptoms. He also noted that he had not personally treated the plaintiff and had instead sent him off to a pain specialist.
74Dr Awad said: “I do not think he has a realistic capacity for any alternative employment. I think he will struggle with this purely by way of his symptoms and inability to perform any job on a consistent and reliable basis”.[35]
[35] PCB 48
75Dr Awad has not actively treated the plaintiff. His understanding of debilitating symptoms is inconsistent with the views I have formed based on the whole of the evidence. Therefore, while I accept his opinion that the plaintiff is unlikely to return to his pre-injury employment,[36] I do not accept his opinion that the plaintiff is now totally incapacitated for “suitable employment”.
[36] PCB 48
Dr Meena Mittal
76Dr Mittal is a pain physician and specialist anaesthetist who has treated the plaintiff at the referral from Dr Awad.
77Dr Mittal wrote to Dr Awad on 3 October 2022, setting out the plaintiff’s complaint of pain, a clinical impression and management plan. Dr Mittal’s treatment included a left L4 and L5 nerve root block on 8 November 2022,[37] and bilateral L4/L5 and L5/S1 medial branch blocks, as a diagnostic procedure, on 14 March 2023.[38]
[37]PCB 53
[38]PCB 54
78Next, Dr Mittal reported to the plaintiff’s solicitors on 14 February 2025, setting out the history, the plaintiff’s description of pain, the clinical impression and management plan.
79Dr Mittal confirmed a diagnosis of left L4 and L5 radicular pain, resolved after nerve root intervention. Dr Mittal said there was persistent lower back pain which was most likely myofascial in nature. About work capacity, Dr Mittal said[39]:
[39]PCB 64-65
“I do believe Mr Bol has realistic capacity for alternate employment in the foreseeable future on a reliable, consistent and sustained basis. I take into account his age, work background, education skills and work experience. I believe Mr Bol would be able to engage in activities that are not physically laborious in nature. He is to avoid activities involving repetitive heavy lifting, twisting, turning, squatting and repetitive forward bending. A sedentary role, working no more than 16 hours a week would be considered reasonable. He would, however, require further training in relation to procuring employment in an alternative vocation.
…
Considering the lower back injury alone and reviewing the job options identified in the IPAR 130 week vocational assessment report dated 17 April, 2024, I believe that the following options are reasonable for Mr Bol.
1.Dispatch and receiving clerk.
2.Purchasing officer.
3.Product quality controller.
4.Pricing clerk and labeller.
I would anticipate Mr Bol is not able to work more than 16 hours in each of these professions per week. I would also anticipate that the following specific restrictions would be taken into account.
1.Avoidance of repetitive bending and lifting.
2.Avoidance of repetitive twisting, turning and squatting activities.
3.Avoidance of prolonged standing and prolonged sitting with ability to be able to alter positions on a regular basis.
I say the above since Mr Bol’s main location of pain is that of lower lumbar spine pain secondary to myofascial injury. This is usually exacerbated after engaging in repetitive forward flexion and prolonged and heavy lifting. If these were to be avoided, I believe that Mr Bol would be able to avoid significant aggravation of his lower lumbar spine pain, thus allowing him to engage in the above occupations.”
80In short, Dr Mittal confirmed the plaintiff had a capacity for light work but put a limit of 16 hours per week on such work “with injury”.
81But, there is a limitation to the use that can be made of Dr Mittal’s opinion about work capacity, because the last consultation with the plaintiff was on 26 April 2023, at which time a request was placed for the plaintiff to undergo a pain management program.
82With the limitation that Dr Mittal had not seen the plaintiff for about two years, when providing the report, the doctor was asked to comment on “the IPAR jobs” as set out. Therefore, the limit of 16 hours per week is by reference to those jobs. Curiously, Dr Mittal was not asked to consider work as a Community Worker.
83Pausing here, once again it should not be forgotten that it is the plaintiff who bears the evidentiary onus to establish an entitlement to loss of earnings.
Advance Healthcare
Dejan Stojanovic
84Dejan Stojanovic is a physiotherapist with Advance Healthcare, who saw the plaintiff as part of a multi-disciplinary pain management program.
85Mr Stojanovic provided a report dated 19 June 2024. He said that upon completing the pain management program the plaintiff “demonstrated an improved capacity for walking, lifting, pushing and pulling. From a physical capacity he has a capacity to return to work in a lighter role that requires limited sitting, bending, twisting and heavy lifting”.[40] I note that he did not place a limit on the number of hours for light work.
[40] PCB 66
Azra Kamberovic
86Azra Kamberovic is a psychologist with Advance Healthcare, who provided a report dated 10 July 2024[41] and is of limited use for an assessment of a physical capacity for work. But Ms Kamberovic did record a history that the plaintiff stated that completion of his degree would enable him to pursue employment as a Community Services professional and otherwise described the aim of the multi-disciplinary program in improving the plaintiff’s long-term ability to manage his pain, including from a psychological perspective, so as to encourage him to source and apply for suitable employment opportunities”.[42]
[41] PCB 70
[42] PCB 71
Discharge Summary
87The Advance Healthcare discharge summary dated 6 May 2024 was tendered. It set out how the plaintiff had reported an overall mild improvement in his presentation since completing the pain management program.[43] The authors of that summary said that ongoing physical and non-physical factors impacted his ability to seek new employment at present, but that his reduced function which was having a significant impact on returning to usual work tasks should improve over the following 3-6 months.[44]
[43] PCB 75
[44] PCB 75
Medico-legal reports - plaintiff
Dr James Chan
88Dr James Chan is an occupational physician who examined the plaintiff at the request of his solicitors and provided a report dated 22 October 2024.[45]
[45]PCB 77
89After obtaining a history, together with a history of the plaintiff’s current symptoms and after conducting a clinical examination, Dr Chan said the plaintiff presented with a chronic pain syndrome affecting his lower back with now no leg pain. However, he did note that the plaintiff had difficulties accurately describing his pain. He said the diagnosis was the aggravation of degenerative changes in the lumbosacral spine and development of a chronic pain syndrome.[46]
[46]PCB 82
90Dr Chan then set out described restrictions, including the plaintiff reporting a limitation for various physical activity. Dr Chan then said that noting the levels of pain and documented functional tolerances, realistically the plaintiff was unable to return to pre-injury duties in the foreseeable future.[47]
[47]PCB 84
91Next, Dr Chan was asked about alternate employment. He said that realistically the plaintiff had a Diploma of Management, self-reported average computer literacy and a sitting tolerance of currently 20-30 minutes. He said that with some improvement in the sitting tolerance, the plaintiff may be able to cope with sedentary office-based duties in the near future. He recommended the plaintiff start out on a trial of 4-6 hours every second day or three days a week.
92Dr Chan was then asked to comment on the “IPAR jobs”. He ruled out forklift driving as suitable. He gave equivocal support to dispatch/receiving clerk, purchasing officer, product quality controller and pricing clerk, depending upon the physical requirements and the plaintiff’s own functional tolerances. Overall, he said that if the plaintiff’s pain levels could be further reduced with some improvement in functional tolerances, the plaintiff might be able to realistically attend suitable alternative duties.[48]
[48]PCB 85
Professor Richard Bittar
93Professor Richard Bittar is a consultant neurosurgeon who examined the plaintiff at the request of his solicitors and provided a report dated 25 November 2024.[49]
[49]PCB 86
94Professor Bittar obtained a history from the plaintiff, including the current symptoms.[50] Having done so, he then reviewed radiological investigations and conducted an examination in which he noted moderate restriction of lumbar spine flexion with mild restriction of lumbar spine extension, both aggravated by pain, with some tenderness and spasms.
[50]PCB 87
95After diagnosing the aggravation of lumbar spondylosis and lumbar disc prolapses at L3-4 and L4-5, Professor Bittar went on to say the plaintiff will experience ongoing lower back pain and significant restrictions in relation to social, recreational, and domestic activity.[51]
[51]PCB 89
96Next, Professor Bittar opined that the plaintiff would likely be severely restricted for lifting, bending, twisting, pushing and pulling, prolonged sitting or standing.
97Professor Bittar then opined that the plaintiff realistically was unlikely to return to his pre-injury duties.
98Next, in respect to alternate employment, Professor Bittar opined that the plaintiff did not have any realistic capacity for alternate employment in the foreseeable future on a reliable, consistent and sustained basis. He said the plaintiff would not be able to work as a forklift driver, dispatch and receiving clerk, purchasing officer, product quality controller or price clerk/labourer (the “IPAR jobs”) because all of those roles required either sitting or standing for more than short periods, and he would not be able to undertake them reliably and consistently.[52]
[52]PCB 90
99I accept Professor Bittar’s opinion regarding the diagnosis of injury. I also accept his opinion that the plaintiff is unlikely to return to his pre-injury employment. I also accept his opinion that the plaintiff has restrictions for activities such as lifting, bending, twisting, pushing and pulling. But, in his report, Professor Bittar makes only a passing reference to the fact that the plaintiff had what he described as an “incomplete Bachelor of Community Development”. Professor Bittar offered no opinion about whether the plaintiff is now physically unable to return to study, or whether the plaintiff is now unfit for work as a community worker.
100Professor Bittar’s opinion is also slightly at odds with that of the treating pain specialist, Dr Mittal, and the objective material from Advance Healthcare.
101In my view, based on what the plaintiff told him, Professor Bittar formed an overly pessimistic view about the possibility of a return to work. Certainly, the plaintiff’s oral evidence was less pessimistic about a return to work. There is merit in the defendant’s submission that the plaintiff has a perception of disability that is greater than the objective evidence of disability, based on what he told Professor Bittar, although ultimately not much turns on this point.
Medico-legal reports - defendant
Dr Mary Wyatt
102Dr Mary Wyatt is an occupational physician who examined the plaintiff at the request of the defendant.
103Dr Wyatt first reported on 9 October 2024.[53] Having obtained a history, conducted an examination in which spinal movements were reduced, and then considered various radiological investigations, she assessed the plaintiff as having a diagnosis of chronic low back pain, but with resolution of previous radicular leg pain.[54]
[53]DCB 18
[54]DCB 24
104Dr Wyatt said the plaintiff was not fit to return to his pre-injury employment. She said he would struggle to sit on a forklift much of the day so that work was not recommended. But she said he presents as fit for work that was back friendly. Dr Wyatt noted the plaintiff was one year from completing a Bachelor’s degree in Community Development, which perhaps is correct if he was to undertake that degree on a full-time basis. In any event, she said that “working in that field would be the most sensible approach”.
105Dr Wyatt opined that physically she thought the plaintiff could do the job of dispatch and receiving clerk, purchasing officer, product quality controller, depending on the actual position and the demands of the job, and that of pricing clerk/labeller. However, she said that community-based work is likely to be more relevant and more suitable, noting his background studies.[55]
[55]DCB 25
106Dr Wyatt opined that in the clerical roles, working up to 20 hours per week would be suitable, but beyond that sitting was likely to become an issue. She said that roles in community development are likely to require more varied movements and would be more suitable for working 30-40 hours per week. She recommended that based on his duration out of the workforce, working in community development for 30 hours per week for a year was recommended, but medically she expected him to be able to move into that work full-time.[56]
[56]DCB 26
107Dr Wyatt provided a supplementary report dated 27 February 2025,[57] which discussed in a little more detail some of the IPAR jobs.
[57]DCB 42
Dr Terence Saxby
108Dr Terence Saxby is a consultant orthopaedic surgeon who examined the plaintiff at the request of the defendant and provided a report dated 6 November 2024.[58]
[58]DCB 28
109Dr Saxby had available much of the tendered evidence in this proceeding. Having considered that material, he then obtained a history and examined the plaintiff. He described the plaintiff as cooperative, found no evidence of spasm but some restriction of lumbar movement. He concluded that the plaintiff had radiologically confirmed lumbar spondylosis with possible nerve root compression, but clinically no evidence of nerve root compression. Therefore he said the most appropriate diagnosis was lumbar spondylosis.[59]
[59]DCB 34
110Dr Saxby opined that the extent of restrictions based on the radiology and his clinical examination were greater than he would have anticipated.[60] In any event, he opined that the “incident from February 2022 was likely to cause an exacerbation of Mr Bol’s problem”. But he then went on to say that any involvement from work with the employer would have “been a temporary increase in symptoms and not actually made the condition worse”.[61]
[60]DCB 35
[61]DCB 35
111Pausing, the defendant did not seek to rely on Dr Saxby’s opinion that the plaintiff only had a temporary increase in symptoms because of the work with the employer. Therefore, it did not rely on his opinion that the plaintiff presented with the normal progression of his underlying lumbar spondylosis.[62]
[62]DCB 35
112But the defendant maintained that Dr Saxby’s opinion about work capacity was relevant.
113In that regard, Dr Saxby said he did not believe the plaintiff would be able to return to his pre-injury duties. However, he believed the plaintiff would be able to return to suitable duties as long as he was not required to do repetitive heavy lifting, repetitive bending. He said the plaintiff would obviously need to return on reduced hours and gradually build up, but he could see no reason why he could not return to full-time work doing suitable employment.[63]
[63]DCB 36
114Overall, Dr Saxby opined that the plaintiff did have the capacity for the vocations set out in the IPAR report.
Vocational reports
115The balance of the expert evidence related to jobs and rates of pay.
116But first, I use the term expert evidence in a qualified manner. It is open to conclude that neither party provided any true expert opinion about jobs or rates of pay.
117The plaintiff did not provide any objective evidence of his studies at Victoria University. He did not provide any information directly about the rates of pay for the jobs that the University degree would qualify him to perform. For example, he did not provide any lay evidence from people he had studied with, or who had taught him during the course. He did not identify an actual job he would have expected to be able to perform with the University qualification.
118It should not be forgotten that the plaintiff bears the overall burden of proof. As was said in Margripilis-Hampton v Spendwatt Pty Ltd[64] it is incumbent on a plaintiff to lead the evidence he might have been expected to lead based on his own knowledge of circumstances, to support his case as put. Here, the plaintiff chose to put very little useful information about his course, or relevant rates of pay for a community worker, or what the actual job involved.
[64] [2022] VSCA 15
Flexi Personnel
119In that setting, the plaintiff did not provide a vocational report as such, but he did provide what was described as an earnings report from Flexi Personnel (“Flexi”) dated 28 February 2025.[65]
[65]PCB 91
120The Flexi earnings report did not provide any useful evidence of the duties required for any job, but provided hourly rates of pay for various jobs. As an example, it said that based on an adult employee paid under the “Social, Community, Home Care And Disability Services Industry Award 2010”, and classified as a social and community services employee level 1, pay point 1, a community worker was paid $25.41 gross per hour. That figure for a 38-hour working week equates to $965.58 gross per week, by 52 weeks, equates to $50,210.16 gross per annum. I shall refer to that as the “Flexi figure”.
121Pausing, it could be said that the only expertise required to arrive at the Flexi figure was sound computer skills to conduct online research. There is no path of reasoning about why the Flexi figure is appropriate or relevant to the plaintiff, or how the author of the Flexi report applied any expertise to arrive at the Flexi figure.
122Compounding this weakness with the Flexi evidence, the plaintiff himself gave no useful evidence about why the Flexi figure was appropriate where he must have some knowledge about the jobs he was studying for.
IPAR assessments
123The defendant provided a vocational assessment from IPAR Rehabilitation Pty Ltd (“IPAR”) dated 17 April 2024,[66] and a labour market analysis report from IPAR dated 20 February 2025.[67]
[66]DCB 61
[67]DCB 44
124I do not propose to set out all the evidence in the IPAR reports, but unlike the Flexi report, the evidence from IPAR did contain some analysis of what was involved in various roles and actual jobs.
125Relevantly, in the report dated 20 February 2025, IPAR identified and set out the duties and demands of a community worker. It then described the expected wage as $1,688 (median weekly full-time income for all welfare support workers) by reference to a website.[68]
[68]PCB 51
126To the extent that there is relevant or expert evidence in either the Flexi or IPAR reports, I prefer the evidence in the IPAR reports because it contains a useful discussion of various roles and how those jobs may suit the plaintiff, which is evidence that is not in the Flexi reports.
Legal principles for pecuniary loss serious injury
127The relevant legal principles are well known and not really in dispute in this proceeding, perhaps save for the issue about the extent of the grant of leave.
128What is in dispute is how the principles should be applied after factual disputes in the evidence are resolved.
Submissions
Defendant
129It was agreed was that in the period that the plaintiff worked for the employer he earned on average $1,194 gross per week. That figure was as calculated by the relevant WorkCover Agent for the purpose of his pre-injury average weekly earnings (“PIAWE”) for the payment of statutory benefits.
130The defendant contended that the figure of $1,194 gross per week was the starting point for a consideration of without injury earnings, considering the plaintiff’s track record[69] and the nature of casual employment.
[69]T 69, L 6
131But the defendant said $1,194 gross per week did not ‘most fairly reflect’ without injury earnings.
132The defendant submitted that the Court had to consider the very low earnings that the plaintiff had in the previous two financial years before starting with employer and then factor in the plaintiff’s intention to return to study, but for being injured, before arriving at a figure that most fairly reflected his without injury earnings for the purpose of the statutory formula.
133Based on its assessment of the evidence, the defendant contended that something like a 50 per cent reduction should be applied to arrive at a “without injury” earnings figure.
134Therefore, the defendant submitted that “something like $600 gross per week”[70] was a fair reflection of the plaintiff’s without injury earning capacity after applying what it called “a study discount and a track record discount”.[71]
[70] T 69, L28
[71] T 71, L 14
135Next the defendant contended that intellectually there was nothing in the IPAR jobs that would be beyond him. The defendant highlighted the evidence about rates of pay in the IPAR reports. It submitted that the court should accept that evidence in preference to the evidence from Flexi.[72]
[72] T 76-77
136The defendant contended that after injury the plaintiff was fit for “suitable employment”. It then submitted that based on the calculations it had done, the plaintiff failed to satisfy the requirements in the Act.[73]
[73] T 79
137Finally, the defendant contended that leave to commence a common law proceeding should be confined to the day he developed symptoms.
Plaintiff
138On the other hand, the plaintiff contended that the PIAWE figure of $1,194 gross per week, should be the starting point and the lowest figure selected for “without injury” earnings.
139Next, counsel for the plaintiff relied on the evidence contained in tendered pay records from the employer as proof that some weeks the plaintiff was capable of and able to earn more than $1,500 gross per week. Therefore, it was submitted that $1,500 gross per week was a figure open to be used as most fairly reflecting the plaintiff’s “without injury” earnings.
140Alternatively, counsel for the plaintiff contended that a figure of $1,317.50 gross per week could be selected as the without injury earnings figure. This was arrived at by taking out the highest and lowest weeks from the pay records (described as the outliers) and then averaging the other pay periods, to produce an average of $1,317.50 gross per week.
141Therefore, the plaintiff contended that the Court should select one of $1,500, $1,317.50 or $1,194 gross per week as the appropriate “without injury” earnings figure, as compared to the $600 gross per week contended for by the defendant.
142Next, the plaintiff highlighted that before he hurt his back, he had only performed manual work. Therefore, that should be factored into a consideration of his current capacity for suitable employment.[74]
[74] T 103, L 14-21
143Next, the primary submission on his behalf was that the medical and other evidence supported a conclusion that with injury he now had no capacity for suitable employment.[75] Professor Bittar and Dr Ouladare’s certificate were the cornerstone of that submission.
[75] T 105, L 17
144As a fall back, the plaintiff contended that most of the IPAR roles were full time jobs and not part-time jobs and so were not ‘suitable employment” as defined in the Act.
145Finally, the plaintiff provided calculations and submissions about 16 hours per week as suitable for him with a light work back, and contended that the requisite loss had been established, based on the figures put on behalf of the plaintiff.[76]
[76] T 110
The statutory test for pecuniary loss
146To establish an entitlement to commence a proceeding for loss of earnings, the plaintiff must satisfy the statutory requirements contained in s325 of the Act, being both the ‘narrative test’ and the ‘statutory formula’.
147First, the plaintiff must establish that the loss of earning capacity consequences from the compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being “more than significant or marked”, and at least “very considerable”, as per s325(2)(b) and (c) of the Act (“the narrative test”).
148Second, he must then satisfy the “statutory formula” as contained in ss325(2)(e)(i) and (f) of the Act, namely, whether he has a loss of earning capacity of 40 per cent of gross earnings, measured as set out in the three years before or after injury as most fairly reflects his earning capacity had the injury not occurred.
149Third, he must continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more as per s325(2)(e)(ii).
150A failure by the plaintiff to establish any one of these three steps would mean that he fails to establish an entitlement to commence a proceeding for pecuniary loss damages.
The narrative test
151Commencing with the narrative test, the defendant did not explicitly concede that the plaintiff could not return to his pre-injury construction labouring work. But neither did it put to the plaintiff that he could or submit that he could. The thrust of its submissions was directed to the medical evidence of a retained capacity for light work, consistent with a man who had the intellectual capacity for tertiary education.
152As an overview, the consensus of medical opinion is that the plaintiff cannot return to full and unrestricted physical work.
153Therefore, I am satisfied that I can proceed on the basis that it is not in dispute that the plaintiff cannot return to the type of labouring or forklift work that he did pre-injury with the employer.
154True it is that the plaintiff harboured ambitions of completing his studies and working in a job consistent with those studies, but equally the inability to return to the type of pre-injury employment that he did with the employer obviously limits the job options now open to the plaintiff.
155The plaintiff has lost earnings to date, and he will have a loss of earning capacity into the future because of his reduced job options.
156Although the plaintiff intended to complete his studies and to seek sedentary work compatible with a tertiary qualification, I am conscious of the fact that his previous education and study did not lead to sedentary work. When needed, he has relied on the ability to perform manual labour, to earn a wage.
157The combination of lost earnings to date, an inability to return to manual work such as he did with the employer and reduced job options in the future, in my view, justify a conclusion of a “very considerable” consequence to the plaintiff.
158Therefore, the narrative test is satisfied.
The statutory formula in s325(2)(e), (f) and (g) of the Act
159Next for determination is whether the plaintiff has satisfied the second and third stages of the loss of earnings test set out in the Act (“the statutory formula”).
160It is this aspect of the proceeding that is the real contest.
Determination of without injury earnings
161The task of assessing “without injury earnings” is not a simple one. The plaintiff had a low level of actual earnings when he was studying and working part-time, until COVID interrupted those plans. When he deferred his studies, he was able to obtain higher paid employment. Further complicating the picture is the causal nature of the work with the employer. At times he worked less than full time hours and at times he worked more than full time hours.
162By the same token, before injuring his back, the evidence is that the plaintiff had a capacity for full-time employment, which he exercised in the relevant six-year window provided for in the Act. In fact, on several occasions, he worked more than the usual full-time hours.
163It should be remembered that I am required to assess without injury earnings for the purpose of a statutory formula in a gateway provision. That is not the same as a common law action for damages. As the Court of Appeal said in The Herald & Weekly Times Ltd & Anor v Jessop[77] to pass through the gateway, a worker must satisfy the specific requirements of the Act, rather than any common law requirements.
[77] [2014] VSCA 292 (“Jessop”)
164In Jessup the Court emphasised the distinction between a common law action and a gateway provision. The Court noted that for the purpose of the Act, a worker’s earning capacity represents a capital asset which, when exercised, produces income from personal exertion. The facts and way a worker presents his or her case are relevant factors that influence the application of the statutory formula. While the actual hours worked may be the best evidence of actual earnings, that will not always be the best evidence for some scenarios.
165In this case, without injury, the plaintiff was studying and working part time as his study allowed, and as work was available, until COVID interrupted those things. Next, before starting with the employer the most he earned as an average per week was approximately $237 gross per week. That suggests it was unlikely that he did much, or any, full time work.
166But before being injured the plaintiff’s capital asset was for a full-time earning capacity. When his studies were paused, he exercised that capital asset to his full potential, including at times when he worked more than the usual full-time hours.
167I am conscious that the plaintiff has the overall evidentiary onus. The details about how he worked in the several years before starting with the employer are limited. The hours of work with the employer fluctuated, due to the casual nature of that employment. Casual employment does not attract the usual benefits of full-time employment such as paid holidays, which needs to be factored into the equation to arrive at an annual figure that most fairly reflects his earning capacity. Therefore, it would be appropriate to allow him 48 weeks of casual pay to arrive at a figure that most fairly reflects his without injury earnings, on the basis that he would take the usual 4 weeks holidays and would not be paid for that period as a casual worker.
168The remaining issue is what is an appropriate weekly figure?
169I consider that the best evidence is not the highest, or the lowest weekly earnings with the employer, but is the average figure upon which the PIAWE was calculated, that is, $1,194 gross per week. In my assessment of the evidence, that figure most fairly reflects the “without injury” earnings. It is higher than what the plaintiff was earning when studying and working, but lower than the best weeks with the employer, or the average if the outliers were removed. I consider it to best represent his capital asset had he not hurt his back.
170For an assessment of what “most fairly reflects” his “without injury” earning capacity, there is merit in the defendant’s contention that a study and track record discount should be applied. But equally, for the purpose of a gateway provision, a discount should not be applied as if this was a common law proceeding. I consider that there is something of a study and track record discount by not selecting the highest earnings he was able to achieve with the employer in the six-year period.
171In circumstances where the plaintiff only studied part-time and was otherwise available for work when offered to him, in my opinion the PIAWE figure of $1,194 gross per week does most fairly reflect his “without injury” earnings. Keeping in mind the causal nature of the work with the employer, I consider it is also appropriate to multiply that weekly figure by 48 weeks, which equates to an annual figure of $57,312 gross per annum. I also note that this figure does not make an allowance for the likely incremental pay rises that the work with the employer would have attracted in the three years after injury and so there is some discount by using the pre-injury earnings figures as an anchor point without any allowance for incremental pay rises.
172I accept that there is a touch of art and a touch of science to arrive at the figure of $57,312 gross per annum, for the purpose of a gateway provision.
173In short, the assessment of loss of earnings and, for that matter, loss of earning capacity, for the purpose of a gateway provision is not always a precise science and this case is an example of that, for the reasons expressed.
After injury earning capacity for suitable employment
174Once again, I am conscious that, in a consideration of the plaintiff’s “after injury” earning capacity, I am conducting an assessment for the purposes of a gateway provision. As was said by Priest, Beach and Niall JJA in Yirga-Denbu v Victorian WorkCover Authority,[78] an examination of the whole of the evidence is required as to what might be the plaintiff’s capacity to engage in work which, in the end, is a matter of judgment.
[78][2018] VSCA 35.
175The whole of the evidence supports the conclusion that “after injury” the plaintiff retains the intellectual capacity for “suitable employment” including for a job as a Community Support worker. Perhaps not surprisingly, he did not seriously suggest that he did not have the intellectual capacity for sedentary work, although he did emphasis his slow computer skills, where there is no objective evidence that his computer skills prevent him from sedentary work.
176The real issue in this case is what is the plaintiff’s physical capacity for “suitable employment” “with injury”, not whether he now has the intellectual capacity for work.
177Next, I accept the evidence from IPAR that as a community support worker, the plaintiff could earn $1,688 gross per week. That equates to a gross annual figure of $87,776.
178I have earlier set out how I assessed the plaintiff’s “without injury” earnings at $57,312 gross per annum. Sixty per centum of $57,312 gross per annum is $34,387.
179Therefore, if the plaintiff “after injury” has a retained capacity of greater than $34,387 gross per annum ($661.29 per week) then he fails to satisfy the requirements of the Act.
180Obviously if now fit for full time work, then the claim for pecuniary loss fails.
181Having considered the whole of the medical evidence, I conclude that the plaintiff has what might be termed a “light work back”. I accept that he should avoid activity such as bending, twisting or heavy lifting. I accept that he would require a degree of flexibility with the ability to vary his posture as needed.
182Next, I prefer the evidence from the medical practitioners who opined that the plaintiff has a residual capacity for “suitable employment”, with restrictions, because that evidence is consistent with the plaintiff’s oral evidence.
183I accept that the plaintiff would likely need to commence a return to work on reduced hours and then assess his capacity and tolerance for increased hours.
184I note Dr Mittal thought the plaintiff could do 16 hours per week. In my assessment of the evidence, that is a minimum number of hours that the plaintiff could now do.
185In fact, I consider that Dr Wyatt’s assessment of 30 hours per week is more likely a reflection of the plaintiff’s residual capacity for “suitable employment”, as it is a more recent assessment and is consistent with the fact of some improvement since the pain management program.
186Dividing the IPAR figure of $1,688 gross per week for a Community Worker by 40 hours per week,[79] produces an hourly rate of $42.20 gross.
[79] The IPAR report cites a 40 hour per week job
187Adopting Dr Mittal’s opinion about 16 hours of work, by $42.20 per hour, equals $675.20 gross, by 52 weeks, produces an “after injury” earning capacity of $35,110.40. This is more than the 60% threshold of $34,387, and so the claim for pecuniary loss is not made out in accordance with the requirements of the Act.
188Obviously, applying Dr Wyatt’s evidence of a minimum of 30 hours per week also causes the claim for pecuniary loss to fail.
189Accordingly, the claim for leave to commence a proceeding for pecuniary loss damages is not made out on the evidence.
Date of injury
190There remains the issue as to whether leave is given for course of employment, or for the specific date.
191First, despite the plaintiff saying during his oral evidence that he developed symptoms only on one day, that needs to be weighed in the context of the evidence in his affidavits, what he said to doctors and the opinions given by the medical experts.
192I am conscious that English is an additional language and some of the difference in his evidence about the onset of symptoms is likely explained by language barriers.
193Second, it would be wrong to automatically ascribe a date of injury to the day symptoms developed. This is not a case where the plaintiff claimed to have suffered a discrete or frank event.
194Despite his oral evidence, the plaintiff has consistently described doing heavy work for the defendant and then becoming symptomatic. I suspect the nuance of this issue was lost on him during cross examination when he agreed the injury came on during one day.
195The medical evidence is broadly consistent for a conclusion that the general nature of the work with the employer aggravated previously asymptomatic degenerative change in the plaintiff’s lumbar spine. As such, it was the totality of the work and not one day of work, that caused the injury.
196As was said by J Forrest J in Kruisselbrink v Nationwide Maintenance Services Pty Ltd[80] it is the injury that is the focus of the grant of leave to commence a common law proceeding. Here, the evidence, for a gateway provision, is that it was the general nature of the work that caused or contributed to the injury. In such a scenario, even if the pain came on during one day, where the focus for the grant of leave is on the injury and where, as in this case it can be related on the evidence to the general nature of work duties, leave should not be confined to a specific date.
[80] [2010] VSC 260
197In short, the plaintiff has made out an entitlement to commence a common law proceeding because of the general nature of his work with the employer. Based on the evidence, the cause of action is not confined to work on a specific day.
Result
198The plaintiff is granted leave to commence a common law proceeding for pain and suffering damages for injury suffered through the course of his employment with the employer.
199Leave to commence a proceeding for pecuniary loss is refused.
200I shall hear from the parties as to the form of orders and any consequential orders, such as orders for costs.
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