Brunton v VWA

[2025] VCC 1698

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-04005

STUART NEILSON BRUNTON	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2025
DATE OF JUDGMENT:	19 November 2025 (ex tempore)
CASE MAY BE CITED AS:	Brunton v VWA
MEDIUM NEUTRAL CITATION:	[2025] VCC 1698

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – spinal injury – range

Legislation Cited:      Workplace Injury Rehabilitation and CompensationAct 2013 (Vic)

Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 21 VR 1

Judgment:                  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Elliot KC Mr M Garnham	Slater and Gordon Lawyers
For the Defendant	Ms S Manova	Hall & Willcox

HIS HONOUR (ex tempore):

1This claim is brought pursuant to s.335 of the Workplace Injury Rehabilitation Compensation Act 2013.

2The plaintiff seeks the grant of a certificate for pain and suffering as a result of what was an accepted work claim for injury to his back.

3The affected body function is the spine. The plaintiff has made three affidavits, these being 18 December 2019, 22 March 2021 and 7 November 2025.

4Some of the affidavit material and a good deal of the exhibits received at the hearing today address matters of important historical relevance but as the course of the morning evolved these have proved less probative to the limited exercise I am called on to decide.

5So, for example, the plaintiff's past injury to his back from a fall when working as a ride operator in Luna Park in 1999 is not relevant, nor is the injury to his hand or two arthroscopies to his knee from sport injuries when he was a lad.

6Having made that observation, it's important that I note that I have read all of the documentary evidence upon which the parties have relied, together of course with the affidavit of Mr Hough sworn 14 November 2025.

7The plaintiff in November 2013 commenced employment with Cowan Restoration as an electrician technician on a full time basis. During the course of his work with his employer, and on 6 November 2014, he injured his lower back. The next day, a Friday, he was rostered off. He rested, he returned to work on the Monday when he was helping to move a desk with three other people and felt a good deal of lower back pain and tingling in his left leg. He has, since that point in time, obtained treatment.

8Because of back pain, he went off work. He had physiotherapy treatment. He was on medication, strong medications, including Valium, and has, over a period of time, taken other medicines and needed recourse to Endone and Lyrica and the like.

9He returned to modified duties two half days per week. In May 2015 he saw Dr Wong, the neurosurgeon, and Dr Du Toit at the Metro Pain Clinic. Dr Du Toit believed he might benefit from a portal epidural injection. Funding was not approved, that did not proceed.

10In early 2016, he completed a pain management program at the Victorian Rehabilitation Centre in Glen Waverley. He was made redundant from Cowan in June 2015.

11He was on weekly payments of compensation related to the back injury until it seems about September 2016. He then commenced work again as an electrician for South Eastern Electrical working 38 to 45 hours a week, and overtime on occasions, it seems, and carrying out mostly commercial electrical work.

12That work lasted for perhaps in the order of a year. He also worked as an electrician for Tagteam Electrical undertaking commercial work although the majority of the time was spent at St Vincent's Hospital changing over lights and at a factory job apparently changing over to LED lighting before he was laid off.

13He subsequently has worked at Energy Saving Light Solutions as a foreman. He worked some 40 hours a week, again, mostly commercial work as I understand the evidence. He said project management work was allocated to him as well as the title of foreman. The project management work assisted his back pain because he was beginning to struggle with it and being on the tools did not help although he agreed with Ms Manova, counsel for the defendant, that he had not requested the change of title or responsibility specifically.

14In September 2018 he began to experience more pain in his back that radiated down both legs. His GP referred him to Dr Andrew Muir but despite a course nerve block injections, the relationship between the two appears to have soured somewhat and he ceased seeing Dr Muir. He has seen others including Dr Christelis at Pain Specialists Australia for treatment.

15The plaintiff deposed that he is always having lower back pain, and this increases with too much activity. The plaintiff has been an avid baseball player since, it seems, the age of about seven. He stopped playing because of his back injury and did not resume until 2016, but that was for a limited period of time. He was a pitcher in baseball. He has said that he has not played baseball since the middle of 2018 due to back pain. He can no longer run freely to chase balls, or to hit the baseball vigorously.

16The plaintiff deposed that from approximately 2021 his left leg pain worsened along with ongoing low back pain. On 13 May 2021 he attended the Casey Hospital emergency department due to low back pain and left leg pain, and foot numbness. He became, because of this pain, reliant on very strong painkiller medication including gabapentin 300 milligrams three times a day, and sometimes Endone.

17In early 2022, the plaintiff was placed on the public waiting list for back surgery. On 20 June 2021 he had been assessed by Mr Vellore, the neurosurgeon, who recommended an L4-5 artificial disc replacement and L5-S1 fusion. That recommendation was not accepted by the WorkCover insurer or a medical practitioner in November of 2021.

18When the plaintiff came to make his 22 March 2021 affidavit, he was working as that project manager which position I described earlier. He subsequently worked for Electrical Safety Checks Proprietary Limited and carried out safety checks at residential properties. He also carried out minor electrical work such as the installation of light switches and power outlets. He deposed that although this was light and not very physically taxing work, he was often struggling with it due to back pain - although he coped still at that time by taking the strong medication of gabapentin.

19On 10 September 2021 he attended the Monash Medical Centre Clayton due to worsening left leg numbness and weakness, and on 24 March 2022 he attended there again for similar reasons. Upon referral from his treating GP, on 27 April 2023 he saw Mr Timms, the neurosurgeon for a second opinion, who believed that it was reasonable for surgery to be considered. The plaintiff deposed that with the extent of back pain and left leg pain that he could no longer continue to work as an electrician, and in 2023 he completed a Certificate IV in Training and Assessment so that he could teach electrical apprentices.

20He was studying after hours for the attainment of the requisite certificate, and this required him to apply himself a couple of hours, a couple of nights a week for study that he performed from his home and which took two years to complete. He now teaches at the Chisholm campus in Berwick to which he drives from his home in Koo Wee Rup and which takes him approximately 25 minutes.

21He performs hands-on teaching three days a week, and the other two days of the week he spends in teaching preparation work and in marking assignments. He says he is coping reasonably well in that work, but that is because he can sit and stand and move at will as is needed, and this helps to limit the build-up of ache and pain in his lower back.

22Beyond that teaching work he occasionally carries out private electrical work as a favour for family and friends. That work is not physically demanding as it was described, including simple power installation work for the installing of switches. The plaintiff says that if not for the back injury he would still like to be carrying out the hands-on work of his preferred profession of electrician. He enjoyed that work and he believes his earnings would be far greater now than in his current teaching role.

23The “off-the- book” work if I can use that phrase for family and friends he said also enables him to maintain compliance with requisite teaching obligations or qualification requirements for his teaching post.

24On 20 January 2025 Mr Brunton came to decompression back surgery at L5/S1 that was carried out at Monash Medical Centre in Clayton by Mr Xenos, the neurosurgeon.

25After the surgery Mr Brunton had an outpatient review at hospital as well as physiotherapy. He resumed physiotherapy with Mr Paul Kemel on whom he continues to attend approximately once a month or perhaps a little longer than that between visits depending upon each other's commitments.

26The plaintiff deposed at paragraph 14 of his most recent affidavit that the back surgery helped to decrease his back pain and markedly so his left leg pain. He said he now rarely experiences flare ups of left leg pain and rarely the numbness that accompanied it.

27However, he deposed that since the back surgery he often gets an ache in his low back and that increases the sensation of pain with too much activity. He says he suffers low back pain daily. Movements involving too much bending and twisting cause low back pain so he tries to avoid them as best he can as well as avoiding movements that involve pushing and pulling as they too can be causes of low back pain.

28Similarly, lifting too heavy weights occasions back pain so he tries to avoid that. He says he has a decreased range of movement in his low back. He says if seated or standing in one position for more than three quarters of an hour his lower back begins to become sore so he will invariably change his position.

29I pause and note that I observed this necessity to move in the course of the plaintiff giving his evidence. So too he said in driving distances. He referred to attending court this morning and being stuck on the freeway and the drive being more prolonged than might otherwise be anticipated. It was necessary for him to shift himself about in order to obtain some degree of requisite comfort and ability in getting him to the city.

30He can walk for approximately an hour without too much back pain after which time it becomes uncomfortable.

31He still attends the Station Street Medical Clinic in Pakenham. He no longer takes painkiller medication because, as he deposed, he had a good result from the back surgery as it affects the left leg. And as to his ongoing back pain he now, in light of his experience previously with strong medications, he endeavours to control it by watching what he does and moderating and limiting the manner of his activities.

32He attends the Koo Wee Rup fitness centre approximately four days a week in an effort to build up core strength in his back with exercises prescribed by Mr Kemel. He is unable he says to lift heavy weights or to do anything very vigorous.

33In December 2024 he moved in from a residential point of view with his former partner, who is the mother of two children, along with her husband. He moved in because he was struggling financially and also at the time, that being before back surgery, he was struggling with considerable pain.

34He said he nowadays tries to help out with housework, however, in doing more strenuous jobs such as for example vacuuming, he needs to pace himself so as to be mindful of not causing too greater low back pain.

35He says his low back problems continue to limit him considerably in being able to freely play and interact with his two children. For example, in playing ball sports including kicking a football. He said, and I note, in his evidence today that he tried this recently and after just two kicks needed to retreat inside because the pain that accompanied that exercise.

36He says he has not resumed playing baseball, something he misses considerably. And if not for the back injury he would still like to be playing it. He said he is quite socially isolated and playing baseball provided a good social outlet for him.

37In cross-examination he said he doubted if he had attended the club more than once a year in recent times because being there itself causes him upset at the realisation of what he has lost in that regard.

38I see no reason to descend into each and every report that has been tendered in this proceeding. I am satisfied that the following references from the material more than adequately and fairly capture the controversies.

39Mr Timms, neurosurgeon, said in a report dated 27 April 2023 that he'd been asked to provide a second opinion regarding the plaintiff's lumbar spine. He said that when he spoke to the plaintiff he was quite marked in his limitations on sitting, standing and mobilising. He described pain in all activities. He has pain across the lower back. He has mild weakness, Grade 4/5 in the L5 distribution of the left leg. His sensation is slightly altered.

40His normal treatment plan is physical therapies, medication, pain management and cortisone injections, all of which he has had. The last resort, he said, was going to be surgery, which he believed had been offered by his primary neurosurgeon. And given all else had failed, and the plaintiff has a neurological defect, or deficit, I should say, it is probably, he thought, a reasonable thing for him to have considered.

41Mr Xenos, the consultant neurosurgeon, in a report dated 5 March 2025, to the plaintiff's GP commented on the surgery that he performed on the plaintiff earlier this year, in January this year. And he wrote this, he wrote:

"I am pleased to report that following the L4-S1 lumbar hemilaminectomy and the left L5-S1 spinal rhizolysis, Stuart, that is, Mr Brunton, has noticed a significant improvement to his left leg pain and numbness. He has a little bit of manageable muscular back pain, but overall is mobilising well, and he is very happy with the results".

42In cross-examination the plaintiff was uncertain if he would have described his muscular back pain as "a little bit".

43Mr Xenos went on to say:

"He is walking good distances. He has gone back to see his normal physio and coping well".

44Mr Xenos went on to say:

"I still asked the patient to be careful with avoiding repetitive bending, lifting, and twisting, and sitting too long without a break, for there is a fear that it may cause him more mechanical back pain".

45Mr Kemel, the physiotherapist, reported as recently as 10 November this year. He reported that the plaintiff's prognosis is cautious. While his lumbar spine surgery in early 2025 successfully alleviated the severe radicular pain that had been his primary complaint for over a decade, irreversible changes have occurred due to prolonged nerve root compression prior to surgical intervention.

46Mr Kemel said that the plaintiff has demonstrated significant functional improvement through structured rehabilitation, including progressive gym based strengthening and core stability programs. However, residual neurological deficits, such as sensory loss, and absent reflexes in the lower limb are permanent.

47Current symptoms include, relevantly, for what is left for me to decide, occasional lumbar pain and tightness down the left lower limb.

48He addressed what he considered, that is, Mr Kemel addressed what he considered the plaintiff's future expectations could be, and these include persistent lumbar discomfort and awareness as likely life-long. Physical restrictions will remain, particularly regarding heavy lifting and repetitive bending.

49There is a risk of symptom recurrence. While incremental gains in strength and mobility may occur, full restoration to pre-injury status is not achievable. He suggested and recommended the following restrictions to remain in place indefinitely, no repetitive or heavy lifting. Avoiding sustained lumbar flexion or twisting. Limited prolonged standing or sitting without positional changes. No tasks requiring awkward postures or vibration exposures. And these restrictions, he suggested, are essential to prevent aggravation of his condition, and to reduce the risk of re-injury. In my judgment, those conditions, and those restrictions, are inconsistent with a capacity for the plaintiff to return to his pre-injury profession and trade, or trade.

50The plaintiff's GP sees no basis that would enable his patient to return to his pre-injury employment either.

51Dr Journeaux reported that he has seen the plaintiff on two previous occasions. An initial assessment occurred on 11 January 2020, following which he provided a report dated 15 January 2020. In that report he noted significant abnormal illness behaviour with evidence of adverse psychosocial factors influencing presentation. He said he saw the plaintiff again on 8 September 2021, and provided a report also of that date.

52As to the plaintiff's current symptoms, Dr Journeaux wrote in his October 2025 report that:

"The plaintiff currently describes intermittent back pain which occurs daily. The pain generally starts as the day progresses, particularly while working. He generally goes to sleep with it. The pain can vary between two to seven out of 10 on a visual analogue scale depending upon the aggravating event. The pain generally is in the form of an ache which occasional sharp aggregations aggravated by prolonged standing and sitting and any significant bending, twisting and lifting. He gets relief from activity modification and rest".

53He said that in respect of domestic activities of daily living, he has little and no difficulty in all tasks apart from moderate difficulty in gardening, mowing and whipper snipping and engaging in vigorous physical activity.

54He said that the plaintiff used to be, as he records, a keen baseball player and was able to return to baseball at the end of his WorkCover claim but found this increasingly problematic and ceased when he developed lower limb symptoms.

55Mr Journeaux believed that any work related contribution for the plaintiff would only have been short-lived and his presentation had been subsumed by a natural history constitutional pathology.

56Mr Journeaux also said,

"However, the claimant does have an impairment that arises from the requirement for recent surgery and due to the compensable injury from 2014".

57Dr Akil reported to the plaintiff's solicitors on examination of the plaintiff in a report dated 30 September 2025. Dealing with current symptoms, he described the plaintiff:

"Experiencing a lingering intermittent low back pain which he described as a dull ache. The pain is manageable without analgesia. Pain can be exacerbated by prolong static positions such as being in bed for several days when ill or by over exertion. Prolonged sitting or standing for approximately an hour would also provoke his symptoms. He reports that the excruciating preoperative leg pain is 99 per cent resolved following the surgery in January 2025".

58He reported that prior to his injury, the plaintiff was physically active and played sports, specifically baseball. He worked as an electrician, a role which he found manageable. Currently he is unable to participate in sports like baseball. While he has returned to full time work as a teacher of electrical trades, a role that involves standing and some physical activity, he remains very cautious when performing any physical tasks. He is, however, independent with his activities of daily living including showering and dressing and can drive distances without issue.

59I pause there and note the plaintiff can drive but as I have also earlier noted and I accept those occasions of driving do necessitate him as he described having to be mindful of and moving about to manage the driving without undue interference of pain caused by his low back.

60Returning to the report of Mr Akil:

"Lumbar spine examination revealed full and pain free extension on flexion. He was able to touch his feet. There were no neurological deficits in the lower limbs. Power in the lower limbs was normal, five out of five, including dorsal flexion and plantar flexions. His gait was normal et cetera. He was able to squat and stand without difficulty".

61On cross examination the plaintiff said he could do these things described and as to being able to do them without difficulty he said, "But with pain". I accept that account from the plaintiff.

62Addressing work capacity in the report, Mr Akil said:

"The plaintiff is currently working full time. He is capable of continuing in his current role as a teacher. However, due to his underlying back condition, he should have restrictions in place. I would advise that he should avoid heavy lifting, specifically over 10 to 15 kilograms. His examination today showed his capacity for ending and twisting appears satisfactory".

63Addressing the impact on the plaintiff's life, he reported that:

"The injury has had a significant impact on his life, particularly his recreational activities. He is no longer able to play baseball which he previously enjoyed".

64As to sleep, I note consistent with the reporting that sleep is not a matter that the plaintiff would now rely upon as a consequence that has carried over with his impaired lumbar spine.

65I accept that the plaintiff has had a rough time of it and for a good number of years due to his work injury, the parlous and excruciating pain he once suffered, and was affecting his lumbar spine was in great measure a distribution or referred pain from his leg which the surgery from January 2025 has very considerably dealt and this is a very good thing. No-one would otherwise wish a different outcome.

66What the plaintiff, however, now suffers is dull and aching pain which he says he is conscious of on a daily basis and that is due to activity, and that activity and that pain can cause exacerbation on a visual analogue scale from a low of two to seven out of ten. A pain threshold of seven out of ten on exacerbation and is a recurrent feature is, in my view, considerable.

67He manages as best he can to work about that pain by rest and care and modification as needed. He does not resort to any pain-relieving medication. While he had a bad time of it with some stronger prescribed medications in the past, that does not necessarily explain why a Paracetamol or over the counter might be eschewed by him but it is. The plaintiff said that despite managing to cope as an electrician with his pre-surgery back he eventually determined he would no longer be able to remain in that field - very commendably, he has retrained and is now teaching the next young generation, but he says but for the injury he would have chosen to remain in his preferred profession.

68There is some basis to contend as the defendant did that if the plaintiff had managed with excruciating pain as an electrician, that pain having been remediated quite significantly because of the surgery in 2025, that with sensible modifications there is no real reason to think that he could not continue if he wished to as an electrician. The defendant points to the fact that the plaintiff acknowledges performing some occasional electrical work for family and friends. I think it is unreasonable to take the plaintiff's stoicism in working through his pain at that earlier stage in his trade but which he ultimately came to surrender because of it, although prior to the surgery in 2025, and distil from it that the plaintiff could if he chooses to return to full-time work in that previous occupation.

69The ongoing recommended restrictions not just from his physiotherapist but from others anticipates the need for those restrictions to be ongoing and for the plaintiff, in all fields of his endeavour, to be careful going about his work and his life of whatever hue that work might take. This excludes a return to work and associated activities of an electrician.

70I have taken into account the plaintiff's loss of his preferred occupation as a consideration among the many considerations in this hearing. The loss of the plaintiff's capacity to participate in baseball - a sport that gave him an outlet physically and for which he derived considerable enjoyment - has, I am satisfied, been lost to him as a result of the continuing imposition and limitations to his back from the work injury.

71Although it was suggested to the plaintiff that he had not tested his back and the ability to play baseball since surgery, the evidence he gave about his recent attempts to have a kick of football with his children at home and the consequence he suffered suggests to me that it is more probable than not that his capacity to play the game has been lost to him for good.

72He is not a man who, according to the histories that I have read, had a great reservoir of other activities or pursuits to otherwise fill that void and I am satisfied it is a considerable loss to him.

73In other respects, and in so many of the other activities to which the plaintiff has deposed and which is reflected in medical reporting, I think the fair and proper and reasonable estimation by me of what transpires today and into the future is that in each of these areas, he is diminished in his capacity by comparison to his pre-injury position.

74Now, if one merely adopted a Haden Engineering tick-a-box approach, it might be thought that the plaintiff's application is attendant with greater difficulty than I have concluded it is.

75In other words, what I mean is, that there are a number of considerations referred to in Haden Engineering and to which the learned president referred that do not apply here. However, with the utmost respect it should be remembered that Haden Engineering is a decision that provides and is intended to provide a helpful template of some relevant considerations in such cases as these but is not intended to constitute a substitute or cause to be a substitute for the statutory prescription as to what constitutes a serious injury.

76The statutory prescription is two-fold at least and enquires as to whether or not the loss and limitations by way of pain and suffering from an injury are serious both to the plaintiff and when that impairment is considered against a range of like impairments in terms of their consequences.

77The task is both subjective and objective. From a subjective perspective I am satisfied the impositions to the plaintiff by way of what he has retained in comparison to his position prior to the injury satisfies the statutory test. He has been affected in terms of his work. He has been affected in terms of his interaction with his children. He has been affected in his ability to participate with them as he would otherwise wish. He has lost the ability to play a sport that brought him not only physical fitness but enjoyment and solace in his life.

78Although he has other functional capacity to care for himself, to drive himself to and from work, they too present with necessary modifications and adjustments. He will need to for the remainder of hopefully what will be a long future life to be careful and moderate in the way he attends to all aspects of his work and his life.

79The fact that the plaintiff has pain that is very frequent, if not daily, or indeed even if it be best described is intermittent, nonetheless I am satisfied his pain that manifests itself, according to the plaintiff which evidence I accept, as ranging from a low of two but to a high of seven out of ten.

80I am satisfied based on the medical evidence that the plaintiff's residual impairment is permanent.

81As to the plaintiff's resistance to take medication of any sort, he did not strike me in the course of the evidence I heard and my observations of him as someone who was otherwise and concerned to ensure that as best he can he manages his pain in a way that does not reignite or revisit his concerns and his experiences from taking high-grade prescribed medications as he did in the past. I do not see a basis to penalise the plaintiff because he has adopted that attitude and I do not think that fact should stand against him and warrant as a factor to weigh against a grant for the relief sought.

82I am mindful, as has been said in so many other cases, that the grant of a certificate in respect of pain and suffering invariably involves a consideration of a range of consequences. And I am also conscious as well that it probably serves no useful purpose to try and identify one case that falls just shy of, or one case that falls just within, what constitutes what is described as the range.

83In this case, conscious as I am of considerable improvement from a very severe ongoing back and lower limb condition, but bearing in mind the ongoing nature of the work-related injury, the losses and interferences that I am satisfied that the lumbar spine pain still brings to this plaintiff, mean that he is entitled to relief under paragraph (a) and a certificate should be issued.

84I am satisfied the impairment to the spine is not trivial and it can be described as at least very considerable.