Buttigieg v Victorian WorkCover Authority
[2025] VCC 1703
•25 November 2025
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-04009
| EDWARD BUTTIGIEG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 23 June 2025 | |
DATE OF JUDGMENT: | 25 November 2025 | |
CASE MAY BE CITED AS: | Buttigieg v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1703 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the spine – pain and suffering – loss of earning capacity – aggravation of degenerative condition
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Transport Accident Commission v Zepic [2013] VSCA 232; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Haidar v Transport Accident Commission (2016) 77 MVR 121; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Dordev v Cowan & Ors [2006] VSCA 254; Rowe v Transport Accident Commission [2017] VSCA 377; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Seckold v Transport Accident Commission [2024] VCC 343; Seckold v Transport Accident Commission [2025] VSCA 18; Nichols v Robinson (2001) 33 MVR 83; Bezzina v Phi [2012] VSCA 161; Johns v Oaktech Pty Ltd [2020] VSCA 10; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Connelly v Transport Accident Commission [2024] 3 VR 257
Judgment: Leave granted to the plaintiff to commence proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders with Mr C Woollacott | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr R Kumar with Ms J E Clark | Wisewould Mahony |
Table of Contents
Introduction
Statement of issues
The evidence generally
Plaintiff’s background and employment history
Plaintiff’s health and enjoyment of life prior to the work accident
Circumstances of work accident and the Plaintiff’s injury on 30 September 2021
Consultation with Dr Tan on 30 September 2021
Plaintiff’s employment history after the work accident
Plaintiff’s medical treatment after the work accident
CT scan of Plaintiff’s lumbosacral spine dated 4 October 2021
Telephone consultation between the Plaintiff and Dr Tan on 6 October 2021
Physiotherapy, dry needling, osteopathy, hydrotherapy and exercise
MRI scan of the Plaintiff’s lumbar spine dated 2 February 2022
Transurethral resection of the prostate on 5 May 2024
Right hernia repair surgery on 24 June 2024
X-rays of the Plaintiff’s lumbar spine dated 17 January 2025
Plaintiff’s claimed consequences
Work capacity
Pain
Mobility
Medication and treatment
Sleep
Plaintiff’s relationship with his wife
Activities of daily living
Sports and hobbies
Gardening
Social activities
Grandchildren
Driving
Treating practitioner reports
Dr Cesar Tan, general practitioner
Dr Mark Laidler, osteopath
Plaintiff’s medico-legal reports
Professor Richard Bittar, neurosurgeon
Defendant’s medico-legal reports
Dr Graeme Doig, general orthopaedics and trauma consultant
Mr Peter Wilde, orthopaedic surgeon
Associate Professor Bruce Love, orthopaedic surgeon
Relevant legal principles
Parties’ submissions
Credit
When did the work accident occur?
When did the consultation with Dr Tan occur?
Were the medical histories provided by the Plaintiff to the medico-legal experts erroneous, inaccurate, incomplete or varied?
Compensable injury
What was the nature and condition of the Plaintiff’s back before the work accident?
What was the nature and condition of the Plaintiff’s spine at the date of the hearing?
Permanence
How is the analysis of the seriousness of the impairment consequences of the aggravation injury to be undertaken?
Conclusion
HER HONOUR:
Introduction
1On or about 30 September 2021, the plaintiff injured his lower back while working with AMA Group Solutions Pty Ltd (“the employer”). The plaintiff was exiting from underneath the dashboard of a truck and missed a step, causing him to grab a handrail to stop himself from falling. His body swung around the handrail, and he felt a sharp jolt of pain. He fell to the ground, injuring his lower back (“the work accident”).
2The plaintiff continued working up until 11 October 2021. He was then off work from that time until 20 April 2022, when he returned to work on lighter and modified duties. On 11 July 2023, the plaintiff was certified unfit for work and his employment with the employer was terminated in August 2023. The plaintiff has not returned to work since.
3As a result of the work accident, the plaintiff claimed he had suffered a “serious injury” as defined in paragraph (a) of the definition of “serious injury” in s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”).
4The plaintiff brought an application seeking leave to commence proceedings for damages for pain and suffering and loss of earning capacity.
5The body function relied upon by the plaintiff was impairment of the function of his spine.
Statement of issues
6There was no dispute between the parties that the plaintiff suffered an injury to his lower back at work on 30 September 2021. The circumstances under which that occurred were also not in dispute.
7The issues in dispute were:
(a) the nature and extent of the injury suffered; and
(b) whether the injury was “serious”, in the sense that its consequences could fairly be described as being “more than significant or marked, and as being at least very considerable”.[1]
[1]Section 325(2)(c) of the Act; Humphries and Anor v Poljak [1992] 2 VR 129 at 140
The evidence generally
8The plaintiff relied on his three affidavits sworn respectively on 19 February 2024, 5 June 2025 and 23 June 2025, as well as an affidavit of his wife, Veronica Buttigieg, sworn on 5 June 2025.
9The plaintiff gave oral evidence on the application. He adopted his affidavits. He was then cross-examined. There was no re-examination.
10Both parties tendered medical reports, clinical records and other documents.
Plaintiff’s background and employment history
11The plaintiff was born in January 1956 and at the date of the hearing of the application was 69 years of age. He was married with one son and two daughters. He and his wife had three grandchildren, and the plaintiff had three step-grandchildren. At the date of the hearing, the plaintiff’s grandchildren and step-grandchildren were aged between three and thirteen years old.
12The plaintiff completed the equivalent of Year 12 at St John’s College in Braybrook.
13After finishing secondary school, the plaintiff obtained a qualification as an auto electrician from RMIT University.
14The plaintiff obtained his first job as an auto electrician in about 1972. The plaintiff then worked variously as an auto electrician, with the fire brigade, running a workshop, as a subcontractor doing auto electrician work, and performing cabling work.
15The plaintiff suffered an injury to his left knee in the late 1990s and an injury to the second finger on his left hand in around 2013 when copper became caught in his finger whilst pulling cables.
16From 2014, the plaintiff was employed by Western Truck Repairs. In around 2016, the plaintiff had a fall at work and injured his back.
17In 2020, Western Truck Repairs was purchased by the employer, and the plaintiff began working with the employer as an auto electrician on a full-time basis from 24 September 2020.
18On 17 November 2020, the plaintiff suffered a hernia injury while pushing a battery booster used to jump start trucks, around the employer’s workplace. The boosters weighed close to 100 kilograms. The plaintiff stopped work and underwent surgery in around January 2021. From February 2021, the plaintiff returned to work on a graduated basis.
19Shortly before the work accident on 30 September 2021, the plaintiff had returned to working 8 hours per day, five days per week.
Plaintiff’s health and enjoyment of life prior to the work accident
20At the time of the work accident, the plaintiff said that besides recovering from the hernia operation, he was otherwise physically fit and was in good health and enjoying life. He said he slept well and would wake each morning refreshed and excited for the day ahead. Before injury, the plaintiff said he was involved in training horses for harness racing. He restored cars and played the guitar. He enjoyed going on walks with his wife most nights and on the weekends. He said he loved work and enjoyed the camaraderie of the workplace and the challenges that working with electrical equipment posed. He spent time gardening and enjoyed watching football and making/repairing things. He did his own car maintenance and enjoyed regular intimacy with his wife. He was looking forward to interacting with his grandchildren as they became older.
Circumstances of work accident and the Plaintiff’s injury on 30 September 2021
21As outlined, the plaintiff was injured at work on 30 September 2021 while alighting from a truck. He could not see where to place his feet, and he missed a step. He grabbed a handrail to stop himself from falling, which resulted in his body being twisted and swung around. The plaintiff felt a sharp jolt of pain move through his body. He fell to the ground and suffered injury to his lower back.
22The plaintiff called his wife straight away. The plaintiff’s usual supervisor was not at work that day, but the plaintiff reported the accident that day to the supervisor on duty. He also reported the incident to his “manager” on 4 October 2021.
Consultation with Dr Tan on 30 September 2021
23On 30 September 2021 – the same day as the work accident – the plaintiff attended a consultation with Dr Tan, his general practitioner.
24There was a dispute between the parties about when this consultation occurred. Specifically, whether it took place before or after the plaintiff was injured in the work accident.
25In Dr Tan’s notes of his consultation with the plaintiff on 30 September 2021, Dr Tan recorded that the plaintiff reported various symptoms to him. Specifically:
“…
- mcreasing lower back pain with shooting pain both leg
- denies any weakness or numbness
- increasing difficulty on walking secondary to pain
- no urinary or bowel symptoms
bowels movmernt with no faecal incontinence
No saddle anaesthesia
EXAM : tender on the LS spine
range of movemetns stiff, tender, reduced
Umbilical hernia
Actions:
Diagnostic Imaging requested: CT scan LS spine. Send imaging reports to My Health Record.
Letter Created - re. MEDICAL CERTIFICATE to.
… .”
(sic.)
Plaintiff’s employment history after the work accident
26After the work accident, the plaintiff continued to work until about 12 October 2021.
27On 14 October 2021, the plaintiff submitted a Worker’s Injury Claim Form dated 14 October 2021 to his employer.
28After he stopped working, the plaintiff remained off work until 20 April 2022.
29When the plaintiff returned to work on 20 April 2022, the plaintiff was provided with an apprentice to be his “hands and legs”. The intention was for the apprentice to conduct the work with the plaintiff’s guidance and knowledge. This arrangement lasted over a year until the apprentice left. After the apprentice left, the plaintiff tried to continue working, but he was unable to cope with the pain or to meet the physical demands of the role.
30In July 2023, the plaintiff’s general practitioner certified the plaintiff unfit to work.
31The employer terminated the plaintiff’s employment in August 2023.
32The plaintiff has not returned to work in any capacity.
Plaintiff’s medical treatment after the work accident
33In his affidavits, the plaintiff described the consultations and medical treatment he had undergone for his lower back since the work accident.
CT scan of Plaintiff’s lumbosacral spine dated 4 October 2021
34On 4 October 2021, the plaintiff had a CT scan of his lumbosacral spine, which revealed:
“Conclusion:
Multilevel degenerative disc disease.
Mild acquired L4/5 central canal stenosis.
Small posterior central L5/S1 disc protrusion although no canal stenosis or neural impingement.
Marked bony left L5/S1 neural canal stenosis and consequent left L5 exiting nerve root impingement.Multilevel degenerative facet joints.”
Telephone consultation between the Plaintiff and Dr Tan on 6 October 2021
35The plaintiff had a telephone consultation with Dr Tan on 6 October 2021 to discuss the results of the CT scan taken on 4 October 2021.
36According to Dr Tan’s clinical notes of the consultation, the plaintiff was complaining about “climbing the truck into 5 steps and slipped and felt pain in the lower back”.
37Dr Tan replicated the conclusions of the CT scan in his clinical notes and wrote that he and the patient had a “[d]iscussion about the condition, series of investigations scan, blood test if needed, treatment options, prevention and prognosis”.
38Dr Tan provided the plaintiff with a medical certificate.
Physiotherapy, dry needling, osteopathy, hydrotherapy and exercise
39Following the work accident, the plaintiff received physiotherapy for about six months and had some dry needling. The plaintiff also received osteopathy twice a week for over 12 months, which was later cut down to once per week. The plaintiff had hydrotherapy treatment twice per week, undertook some light gym work about twice per week to try to strengthen his core, and did a self-managed exercise program at home, undertaking four to five exercises every morning and every night.
MRI scan of the Plaintiff’s lumbar spine dated 2 February 2022
40On 2 February 2022, the plaintiff underwent an MRI scan of his lumbar spine. The MRI revealed:
“Conclusion:
Multilevel intervertebral and facet joint degenerative changes most pronounced on the right L4/5.
No high-grade canal stenosis.
No definite neural compromise is demonstrated.Mild endplate oedema at L2/3.”
Transurethral resection of the prostate on 5 May 2024
41On 5 May 2024, following discomfort around his right testicle and groin, the plaintiff underwent a transurethral resection of the prostate. The plaintiff made a good recovery from the resection procedure.
Right hernia repair surgery on 24 June 2024
42On 24 June 2024, the plaintiff had a right hernia repair procedure performed. The plaintiff was advised the hernia procedure would require six to twelve months’ recovery.
X-rays of the Plaintiff’s lumbar spine dated 17 January 2025
43On 17 January 2025, upon referral from Dr Tan, the plaintiff had two x-rays of his lumbar spine. The x-ray reports noted that there were no previous x-rays for comparison, and found:
“Mild lumbar scoliosis.
Mild L2-3 retrolisthesis.
Vertebral body heights are maintained.
No fracture or focal bone lesion.
Mild to moderate multilevel degenerative disc changes with small osteophyte formation.
Normal sacroiliac joints.”
44The x-ray reports concluded that there was no fracture identified.
Plaintiff’s claimed consequences
Work capacity
45The plaintiff recounted that before he was injured, he enjoyed his work and the camaraderie of the workplace. He enjoyed the challenges of his job and felt a great sense of achievement and accomplishment when he identified an exact problem and was then able to work on rectifying it. He previously took his work home with him and repaired vehicles and other items for fun. The plaintiff had expected to work until he was 72 years of age.
46After the work accident however, the plaintiff said he had been unable to return to work.
Pain
47At the time he swore his first affidavit on 19 February 2024, the plaintiff explained that he felt pain and constant pressure across his lower lumbar spine. The pain varied in character and could be dull, stabbing, sharp or aching, with an average severity of 8 out of 10. The pain could also reach a level of 10 out of 10.
48The plaintiff said he also experienced intermittent leg pain when his lower back pain flared up. This occurred frequently throughout the day and was dull and aching in character. The plaintiff described the severity of his leg pain as being an average of 6 out of 10.
49Further, the plaintiff said that he had pain in his buttocks and hamstrings which occurred a few times each day and could last for up to a couple of hours. In the few months prior to swearing the affidavit, he had noticed a worsening of his leg symptoms. The symptoms had started travelling into both legs and his ankles, though the symptoms were worse on the right side and generally worse in the morning and at night.
50The lower back and leg pain the plaintiff was experiencing generally increased whenever he bent, twisted and lifted. He was susceptible to flare-ups of pain which required him to rest and take additional medication. The flare-ups of pain could last for a few days at a time and could be caused by simple tasks at home or when the plaintiff was looking after his grandchildren.
51Despite treatment, exercise and medication, the plaintiff had not observed noticeable improvements in his pain symptoms. The plaintiff’s condition had stabilised and pain management, rather than treatment, had become his focus.
Mobility
52The plaintiff explained in his affidavits that after the work accident, when he sat for longer than 10 minutes, his back stiffened, and he had to stand up and move, which he could only do for a few minutes before his back started to hurt. The plaintiff said he could only walk for 10 to 15 minutes at a time before he had to rest. He also could not stretch or take long steps.
Medication and treatment
53After the plaintiff sustained injury in the work accident, the plaintiff underwent physiotherapy and hydrotherapy treatment twice per week. He also did some light gym work to strengthen his core, about twice a week, and tried a self-managed exercise program at home, undertaking four to five exercises every morning and every night.
54When the plaintiff swore his first affidavit in 2024, the plaintiff said because of the pain and discomfort he was experiencing, he was taking two Panadol Osteo each evening to give him some pain relief. He was also taking Panadol from time to time as needed in addition to the Panadol Osteo. Even with the treatment, exercise and medication regime, the plaintiff said he did not get much of a noticeable improvement or relief from his pain and symptoms.
55At the date of the hearing, the plaintiff continued to consult his general practitioner at the Sunshine City Medical Centre for his lower back injury as needed. For general health issues, he attended the Curlewis Medical Centre nearby.
56After the plaintiff was injured, he continued to attend his osteopathy appointments on a weekly basis for massage therapy and dry needling. He also frequented the local gym and swimming pool a few times per week to do his prescribed gym exercises and to use the hydrotherapy pool. When he attends the gym now, or goes for walks with his wife, the plaintiff wears a brace for support which he finds assists his posture and his lower back pain. The plaintiff continues to perform self-managed exercises and stretches regularly.
57At the date of the hearing, the plaintiff was still taking two Panadol Osteo each evening and Panadol from time to time as needed. He was applying Voltaren Gel to his lower back before bed each night. A few times each week, he needed to take an additional Panadol or a Nurofen tablet to manage the pain. About once a fortnight the plaintiff used Tramadol for any severe pain. The Tramadol was prescribed by his general practitioner at the Sunshine City Medical Centre. He tried to avoid using it regularly.
Sleep
58Before suffering injury, the plaintiff said that he slept well and would wake each morning refreshed and excited for the day ahead.
59The plaintiff’s sleep was now broken because of pain and discomfort. He found that he went to bed sore and woke up sore. His poor sleep meant he awoke unrefreshed, which caused him to be grumpy and to lash out at those close to him.
Plaintiff’s relationship with his wife
60The plaintiff said before the work accident, he and his wife used to enjoy regular intimacy together. Since he was injured, physical intimacy is now painful and awkward for the plaintiff, which has had an effect on his relationship with his wife.
Activities of daily living
61The plaintiff said since his work accident, he now requires other people to do maintenance and handyman work around the house. Before the work accident, the plaintiff said he would have done the work himself.
Sports and hobbies
62In his first affidavit, the plaintiff explained his range of hobbies and interests. Most of his hobbies and interests were similar to his employment, in that they involved repairing or maintaining items, either for himself or for others.
63The plaintiff explained that before he suffered injury, many years ago, he had been involved in training harness racing horses. He enjoyed working with the horses on and off the track, including saddling and washing them. Although the plaintiff ceased training horses well in advance of the work accident, he had hoped that he would be able to return to horse training once he retired. This was no longer an option for him.
64The plaintiff also explained that he had a passion for restoring vintage cars, which he did for himself and for other people. When restoring cars, he aimed to preserve their original condition as far as possible, which often meant repairing and reworking parts, including any electrical components. He said he derived a great deal of enjoyment out of making something “new again” and in doing those projects for himself and with other people. He also performed maintenance on cars for himself and his family members.
65Alongside vintage cars, the plaintiff also liked to build and repair furniture. He built timber items and then sanded and painted them. The plaintiff stated in his first affidavit that he built his own homes at Melton and then later at Portarlington.
66The plaintiff explained that before he was injured, he had liked to build electronic test equipment and parts for vehicles. He no longer found any enjoyment in repairing electrical equipment. He said he found it too difficult to sit or stand in one place long enough to concentrate and work on the equipment. He could no longer even change the oil in his car.
67Moreover, the plaintiff explained that before the work accident, he had been a guitar and bass player and was in a band up until his early 40s. Although he was no longer in a band before he was injured, the plaintiff said he still enjoyed having informal “jam sessions” with his friends every few months. Playing bass guitar involved moving heavy and awkward equipment like amplifiers and speakers around. The jam sessions with his friends required the plaintiff to sit or stand in the same place for extended periods of time. Since the work accident, while the plaintiff said he still played guitar from time to time, he could only do so at home because the equipment was too difficult and awkward to carry and transport. He was unable to have “jam sessions” with his friends like he used to prior to the injury.
68Before he was injured, the plaintiff said he enjoyed going to watch football games in-person, as often as he could, maybe six times a year. After the work accident, however, he could no longer go as often as he used to. Travelling to the games, either by car or public transport, and being in crowds, had become too difficult for the plaintiff because of his sore back.
69Since the work accident, the plaintiff is no longer able to play golf with his friends.
70Previously, the plaintiff enjoyed spending time with his wife. Together they would go for a walk for a few kilometres most nights and weekends. Post-injury however, although he and his wife still go for walks on the beach, they now need to drive there rather than walk. Further, the walks are less frequent and are now done more as a form of therapy, rather than enjoyment, because of the pain and discomfort the plaintiff experiences.
Gardening
71Before he was injured, the plaintiff and his wife also spent time maintaining the garden together, mowing, planting, pruning and general clean-up. This was important to the plaintiff as it was an activity that he and his wife were able to enjoy doing together. The plaintiff said he was now unable to do the garden for the same duration as he could before his injury. Gardening, he said, left him in such pain that he required a Tramadol at night to help him to sleep. He has now replaced his lawn with fake turf because he could no longer cut it without being in pain and discomfort.
Social activities
72The plaintiff’s diminished ability to sit, stand and drive has had a large impact on his ability to travel and to spend time with family and friends, especially his children and grandchildren, who all live around an hour-and-a-half away.
Grandchildren
73Because of his injuries, he says he will not be able to interact with his grandchildren as they grow up, in the way that he would have liked to. He is no longer able to run around with them and play football or soccer.
Driving
74The work accident has also inhibited the plaintiff’s ability to drive. He is now only able to drive for 20 to 30 minutes.
Treating practitioner reports
Dr Cesar Tan, general practitioner
75Dr Tan is the plaintiff’s general practitioner at Sunshine City Medical Centre and is aware of the plaintiff’s condition, medical history and the relevant injury.
76According to Dr Tan’s clinical notes, he was aware of the plaintiff’s back and leg pain prior to the work accident and was the doctor who referred the plaintiff for the CT scan and spoke to the plaintiff shortly after the work accident.
77Dr Tan’s report dated 27 October 2024 provided an update on the current status and management of the plaintiff’s condition. Dr Tan identified that the management of the plaintiff’s condition had included: physiotherapy sessions focusing on mobility and pain reduction; hydrotherapy to ease joint pain and improve range of motion; a structured swimming and gym program designed for strength and stability; a regularly monitored medication regimen aimed at pain control; a home exercise program to enhance core stabilisation, and acupuncture as an adjunctive therapy for pain relief.
78Dr Tan diagnosed the plaintiff as suffering from:
“… a lower back injury characterized primarily by a posterior central L5/S1 disc protrusion with marked bony left L5/S1 neural canal stenosis. This has resulted in left L5 nerve root impingement, further complicated by multilevel degenerative facet joint disease.”
79Dr Tan’s prognosis of the plaintiff was that:
“… Given the nature of his spinal degeneration and nerve involvement, his condition is unlikely to improve significantly. Conservative management may assist with pain control, but substantial functional recovery is not anticipated, and he will likely experience ongoing limitations.”
80The plaintiff’s condition was expected to deteriorate over time. Dr Tan opined that–
“… A progressive decline in function [was] probable, with an increased risk of arthritis developing in the affected regions, potentially worsening pain and further limiting mobility.”
81Dr Tan found that the plaintiff was “totally unfit” to perform his pre-injury duties as the physicals demands of his previous employment exceeded his functional capacity and risked exacerbating his condition. Further, he found that the plaintiff was unfit for any form of employment.
Dr Mark Laidler, osteopath
82Dr Laidler prepared a report dated 25 September 2024.
83Dr Laidler diagnosed the plaintiff as follows:
“Ted has established chronic lumbar spine spondylo-arthropathy most noted at L5/S1.”
84Dr Laidler described the plaintiff’s prognosis as follows:
“… [The plaintiff] will most likely never achieve ‘complete recovery’, being pain free and able to complete pre injury duties. … [The plaintiff] is unlikely to return to work at full pre injury hours due to the degenerative nature of his condition and the physical demands associated with his previous work role.”
85Dr Laidlaw’s opinion was consistent with Dr Tan’s report, including that the plaintiff’s condition had stabilised. He considered the plaintiff was unlikely to require surgery, although he thought the plaintiff might later require spinal injections such as cortisone or epidural.
Plaintiff’s medico-legal reports
Professor Richard Bittar, neurosurgeon
86Professor Bittar prepared a medico-legal report dated 18 December 2024 at the request of the plaintiff.
87In his report, Professor Bittar summarised the plaintiff's current symptoms as follows:
“1.Lower back pain: constant, bilateral across lumbosacral junction, varies in character (dull, stabbing, sharp, aching), average severity 8/10, maximum severity 10/10, exacerbated by bending, twisting, lifting, pushing or pulling, coughing, sneezing, or straining, walking more than 20 minutes, sitting more than 15 minutes, standing more than 20 minutes, lifting more than 6kg, relieved by recumbency (lying down), frequent postural changes, gentle exercise, heat packs, medications
2.Leg pain: intermittent, occurs when lower back pain flares up, 5 times per day, duration 2 hours, dull and aching in character, in both legs (buttocks and hamstrings), average severity 6/10, maximum severity 8/10, exacerbated by pushing or pulling, bending, lifting, walking more than 15 minutes, sitting more than 20 minutes, standing more than 20 minutes, lifting more than 6kg, relieved by recumbency (lying down), gentle exercise, medications, heat packs.
Overall, his back pain is relatively stable.”
88Professor Bittar noted the plaintiff’s past medical history as being:
“… significant for an umbilical hernia, which was work-related, and he was managing that condition leading up to the onset of his lower back pain.”
89In terms of medical history, Professor Bittar did not refer to the plaintiff having a degenerative condition of his lower back. Nor was reference made in his report to the fall the plaintiff had at work in 2016.
90In his report, Professor Bittar noted the plaintiff’s education, occupational and social history and also his current treatment. He then described the effect of the plaintiff’s symptoms, namely his sitting and standing intolerance, pain severity, inability to drive or to do recreational activities with his family like bike-riding, playing with his grandchildren and going to the football. Professor Bittar identified that the plaintiff required assistance with domestic activities like gardening, shopping, cleaning, cooking and personal care tasks. Moreover, his sleep was severely impacted, and he frequently experienced daytime tiredness. Overall, Professor Bittar noted the plaintiff’s quality of life had severely diminished.
91Professor Bittar’s report described the history of the plaintiff’s complaints including the work accident, and the subsequent treatment and scans which the plaintiff had undergone. Professor Bittar reviewed the CT scan taken on 4 October 2021, and the MRI scan taken on 2 February 2022. He then examined the plaintiff.
92Upon examination, Professor Bittar observed, in respect of the plaintiff, that:
“On examination, he walked with a nonantalgic and nonmyelopathic gait.
He had moderate restriction of lumbar spine flexion, with normal range of lumbar spine extension. Flexion was more painful than extension.
Bilateral lumbar paravertebral muscle spasm and tenderness.
Straight leg raising was normal bilaterally.
Neurological examination of his lower limbs did not reveal any evidence of radiculopathy or myelopathy, and there was no abnormal illness behaviour.”
93In his diagnosis, Professor Bittar found that the plaintiff presented with:
“Lower back pain and referred leg pain secondary to aggravation of lumbar spondylosis.”
94Professor Bittar considered the plaintiff’s employment had been a significant contributing factor to the plaintiff’s ongoing pain, disability and requirement for treatment.
95Professor Bittar recommended that the plaintiff undergo flexion and extension lumbar spine x-rays to rule out any instability at the L4-5 level, in which case he thought the plaintiff should be considered for surgery. Otherwise, Professor Bittar said the plaintiff should continue with non-surgical treatment and see a pain specialist.
96Regarding the plaintiff’s prognosis, Professor Bittar opined that the plaintiff was likely to continue to experience significant pain and disability into the foreseeable future. Taking into account the plaintiff’s age, education, training, skills and work experience, as well as the nature and severity of his lumbar spine condition, Professor Bittar believed that the plaintiff did not have any realistic capacity for suitable employment. Accordingly, his total incapacity for work was permanent.
Defendant’s medico-legal reports
Dr Graeme Doig, general orthopaedics and trauma consultant
97The plaintiff was seen by Dr Doig on 19 October 2023 for the purpose an independent medical examination.
98Dr Doig prepared a report dated 14 November 2023. Dr Doig’s report was the first report, chronologically, of the parties’ medical reports and was obtained at the request of the defendant.
99In preparing his report, Dr Doig examined the plaintiff and considered the plaintiff’s MRI scan dated 2 February 2022, reports from Dr Tan and Dr Laidler (different to those tendered), clinical records and other notes and reports.
100At the examination, the plaintiff informed Dr Doig of his 55-year career as an auto electrician and the injury he suffered on 30 September 2021 when he twisted his spine swinging on the handle after missing a step. The plaintiff explained that he had felt immediate pain and that he had continued to complain subsequently of lower-back pain with restricted movement. The pain was worse when sitting. The plaintiff had no symptoms in the lower limbs.
101Dr Doig noted the plaintiff’s use of Panadol Osteo, his osteopath appointments and hydrotherapy three times per week to deal with his injury.
102The report also briefly mentioned the plaintiff’s social history and limitations on the plaintiff’s hobbies such as running, soccer and playing bass guitar.
103Under past medical history, Dr Doig simply wrote:
“Mr Buttigieg’s general health is good. He has undergone an umbilical-hernia repair, arthroscopy of his left knee and a prostate biopsy.”
104It was not apparent from the report that the plaintiff’s fall in 2016 or any pre-existing degenerative spinal condition prior to the work accident, had been mentioned to Dr Doig.
105Upon examination, Dr Doig found that:
“Mr Buttigieg was a slim, fit gentleman for his age who walked comfortably into my consulting rooms in no distress and with no evidence of a limp.
Mr Buttigieg’s back was non-tender with no evidence of deformity. He could forward flex only to his lower shins with reduced lateral flexion and 15 degrees of spinal extension, exhibiting muscle guarding and mild dysmetria. Rotation was retained. Hip examination was satisfactory.
Straight-leg raising was full, with negative nerve-root-tension signs and there was no focal neurological deficit of the lower limbs, in particular no evidence of radiculopathy. He could walk on his heels and toes satisfactorily.”
(emphasis added.)
106Dr Doig diagnosed the plaintiff with:
“… a soft-tissue injury to the lower back with aggravation of pre-existing degenerative change. The worker continues to suffer from pain and restricted movement.”
107When assessing the impairment evaluation of the spine, Dr Doig concluded:
“Using AMA4, Page 102, Mr Buttigieg has a Diagnosis-Related-Estimate Lumbo-Sacral Category II which provides 5% Permanent Impairment of the Whole Person.”
Mr Peter Wilde, orthopaedic surgeon
108Mr Wilde prepared a report which was obtained at the request of the defendant but was tendered by the plaintiff. Mr Wilde’s report was dated 6 May 2024; however, the report stated that the plaintiff attended Mr Wilde’s office two days later, on 8 May 2024. It was likely that either the report date or the examination date were incorrect. Nothing turned on that and I accept that the plaintiff attended Mr Wilde’s office in May 2024, and a medical report was produced thereafter.
109Mr Wilde had twenty-eight years’ experience in musculoskeletal surgery with a particular subspecialty interest in spinal surgery.
110In preparing his report, Mr Wilde was provided with the CT and MRI scans dated 6 October 2021 and 2 February 2022 respectively. He was also provided with an operation report dated 19 January 2021 and various treating practitioner reports from Ms Emma Gibbon, Ms Haydee Ferguson (physiotherapist), Dr Laidler and Dr Tan, dated from February 2021 to February 2023.
111In the introduction to his report, Mr Wilde acknowledged the plaintiff’s age, his wife and his grandchildren. He observed that the plaintiff:
“… was in good general health, although his back would get tired from time to time due to his job. He never took time off or required treatment for this.”
112The description of the work accident provided by the plaintiff to Mr Wilde was consistent with the plaintiff’s affidavit, save that Mr Wilde noted that the plaintiff had reported the incident immediately and was told to go home. Mr Wilde also noted that the plaintiff “Later … saw Dr. Cesar Tan, his GP” who arranged a CT scan.
113Mr Wilde noted the plaintiff’s current treatment and medication which was consistent with the plaintiff’s first affidavit. He also noted that the plaintiff wore a brace intermittently and took Lipidil and Nordip daily.
114Mr Wilde took a past medical history from the plaintiff of hypertension for many years, protatomelagy, umbilical hernia repair and right inguinal hernia repair. Mr Wilde did not refer to the plaintiff sustaining a fall in 2016 or having a pre-existing degenerative spinal condition prior to the work accident. Mr Wilde observed that the plaintiff had acknowledged that prior to the incident, the plaintiff experienced occasional back pain but never took time off work or sought medical care.
115Under “Current Symptoms”, Mr Wilde reported that:
“[The plaintiff] complains of lower lumbar back pain radiating to both buttocks, which is present at all times. The pain worsens with bending, lifting, and twisting, and he strictly avoids these activities. He rates the pain levels at six to eight out of ten. Occasionally, the pain goes into his buttocks and hamstrings, but not below. His symptoms are not associated with muscle wasting, weakness of the lower limbs, or sensory loss. He can sit for 20 minutes and drive up to 30 minutes.”
116Mr Wilde noted the plaintiff’s activities of daily living and then undertook a physical assessment of the plaintiff. He identified that the plaintiff “appeared to be an honest and sincere individual”.
117In his physical assessment, Mr Wilde found:
“… [The plaintiff’s] standing posture showed a reduced lumbar lordosis commensurate with his age. He had no deformities. He experienced pain during flexion, limited extension, and spasm on the left side during rotation. There were no neurological findings in the lower legs, and his reflexes were equal and symmetrical. There was no muscle wasting or weakness, and there was no sensory loss to pinprick or light touch.”
(emphasis added.)
118Mr Wilde diagnosed aggravation of lumbar spondylosis without radiculopathy. He also observed that:
“The radiology findings, including MRI and CT scans, confirmed degenerative changes in the lumbar spine, particularly at L4/5 and L5/1. There was no evidence of neural compression.”
119Overall, Mr Wilde summarised that the plaintiff’s back pain has worsened, despite the conservative treatments he had undergone. Mr Wilde acknowledged that prior to the work accident, the plaintiff experienced occasional back pain but never took time off work or sought medical care. The plaintiff considered back pain to be a normal part of his job as a truck auto electrician. The radiology findings, including the MRI and CT scans, confirmed degenerative changes in the lumbar spine, particularly at L4-5 and L5-1. Mr Wilde noted that given the plaintiff’s age, his ongoing severe symptoms and inability to sit or drive for long periods of time, the plaintiff was not fit for any suitable employment.
Associate Professor Bruce Love, orthopaedic surgeon
120Associate Professor Love’s medico-legal report was dated 7 January “2024 [scil 2025]”.[2] The report was obtained at the request of the defendant and was the latest chronologically.
[2] The report is incorrectly dated 7 January 2024
121In making his report, Associate Professor Love reviewed the radiology scans (CT scan and MRI scan of the lumbar spine) and the same documents considered by Mr Wilde. He also considered the more recent reports from Dr Tan.
122The work history and description of the work accident taken by Associate Professor Love were both generally consistent with other reports, with the addition in the description of the incident, that a co-worker had assisted the plaintiff to the ground after the plaintiff grabbed onto the handrails. The treatment described was also consistent.
123Associate Professor Love noted that the plaintiff had consulted several specialists but none of the reports of those specialists had been made available to Associate Professor Love. None of the specialists seemed to have recommended treatment different to what the plaintiff had already been undergoing. Surgery had not been suggested.
124Under the plaintiff’s past medical history, Associate Professor Love noted the plaintiff’s general health was reasonably satisfactory although he had a mild degree of hypertension. Associate Professor Love reported that the plaintiff had undergone umbilical hernia repair surgery, but the past history section of his report did not mention that the plaintiff had a history of back pain prior to the incident. When asked whether the plaintiff had problems with his lower back before the work accident, Associate Professor Love stated:
“[The plaintiff] does not describe any history with his lower back prior to the incident of 21 [scil 30] September 2021.”
125Upon physical examination, Associate Professor Love found:
“There is tenderness in the lumbar spine. There is an approximately 50% range of flexion, extension and lateral flexion.
He is able to walk on heels and toes. With him lying on the examination couch straight leg raising was unrestricted and there were no abnormal neurological signs in terms of power, sensation or reflexes.”
126Associate Professor Love identified that the plaintiff had obtained access to the MRI of the plaintiff’s lumbar spine taken on 2 February 2022 which revealed significant multilevel degenerative disc disease with nerve root canal stenosis bilaterally at L5-S1 and L4-5 levels.
127Associate Professor Love diagnosed that the plaintiff had:
“… significant age-related degenerative changes of the lumbar spine and those changes have been rendered symptomatic by the incident of 21 [scil 30] September 2021. The symptoms are likely to continue into the foreseeable future and may deteriorate with time. I am not of the opinion there is an indication for surgery at this time and that current treatment should continue.”
Relevant legal principles
128To succeed in this application, the plaintiff must satisfy the Court, on the balance of probabilities, that he has sustained a “serious injury”. Where an injury is alleged to be serious by reason of s325(1)(a) of the Act, the term “serious” is satisfied by reference to the consequences to the worker of any impairment or loss of body function with respect to either pain and suffering and/or loss of earning capacity, when judged by comparison with other cases in the range of possible impairments or losses of body function.[3]
[3]Section 325(2)(b) of the Act
129Where a worker claims to have suffered a “serious injury” by reference to the consequences to the worker of any impairment or loss of body function with respect to either pain and suffering and/or loss of earning capacity, in making an assessment of the plaintiff’s pecuniary loss resulting from an injury, the plaintiff must demonstrate a loss of earning capacity of 40 per cent or more as at the date of the hearing, and a permanent loss of earning capacity which produces a financial loss of 40 per cent or more.[4] Should the Court find that the plaintiff’s pecuniary loss meets the above the test, the Court does not need to consider the plaintiff’s pain and suffering consequences and can grant the plaintiff leave to commence proceedings for damages for pain and suffering and for loss of earning capacity.[5]
[4]Section 325(2)(e) of the Act
[5] Section 335(3) of the Act; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
130To determine whether a plaintiff has suffered permanent serious impairment or loss of a body function, as stipulated in Humphries and Anor v Poljak,[6] the narrative test is to be applied. The narrative test requires a subjective assessment of the consequences of the injury for the plaintiff. The consequences of the injury must then be considered objectively in comparison with other comparable cases within the range of cases to ascertain whether the injury can be described as being “more than significant or marked, and as being at least very considerable”.[7]
[6] Supra
[7] Section 325(2)(c) of the Act; see also Humphries at 140
131In making an assessment of the plaintiff’s pain and suffering consequences resulting from an injury, the Court is required to consider both the plaintiff’s experience of pain in addition to the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life.[8] It may be necessary to consider the intensity, frequency and duration of the plaintiff’s pain by reference to the plaintiff’s account of the pain, what he or she does about the pain (for example medication, rest, seeking medical treatment), the medical opinions on the extent and intensity of the plaintiff’s pain, and what the objective evidence indicates about the disabling effect of the pain.[9]
[8] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”) at paragraph [9]
[9] Haden at paragraphs [10]-[11]
132The extent to which pain derived from an injury impacts the plaintiff’s physical capabilities and enjoyment of life includes an assessment of the effect of pain on the plaintiff’s sleep; mobility; cognitive functioning; capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life, and enjoyment of life.[10] The disabling effects of pain may also be demonstrated by whether the plaintiff has resumed employment and, if so, what limitations there are on the plaintiff’s employment.[11]
[10] Haden at paragraph [16]
[11] Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26 at paragraph [63]
133The weight to be attached to the plaintiff’s account of pain will be determined by the Court’s assessment of the plaintiff’s credibility.[12] The assessment of the plaintiff’s credibility will depend on the plaintiff’s evidence and the views and opinions expressed by the examining medical practitioners about the reliability of the plaintiff’s accounts of pain.[13] For instance if the plaintiff exaggerates his or her symptoms or provides an inaccurate medical history, the plaintiff’s account of their symptoms may be of less weight.[14]
[12]Haden at paragraph [12], citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [8]); Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 (“Sejranovic”) at paragraph [171]; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 (“Sabanovic”) at paragraphs [142]-[145]
[13] Haden at paragraph [12], citing Sabanovic at paragraph [142]
[14]Sejranovic at paragraph [145]; Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph [91]; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 at paragraph [33]; Haidar v Transport Accident Commission [2016] VSCA 182 at paragraph [32]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [74]
134A plaintiff’s credibility is relevant not only to whether his or her evidence should be accepted, but it is also relevant to the reliability of the medical evidence. The opinions of the doctors are essentially dependent on the credibility and reliability of the histories given to them by the plaintiff.[15] Medical opinions by experts may be of reduced weight if the plaintiff is shown to be an inaccurate historian because the quality of a medical opinion is only as good as the history upon which it is based.[16]
[15]Dordev v Cowan [2006] VSCA 254 at paragraph [14], per Chernov JA (Maxwell P and Neave JA agreeing)
[16] Rowe v Transport Accident Commission [2017] VSCA 377 at paragraph [89]
135Regardless of the veracity of the plaintiff’s evidence, reliable medical evidence must not be ignored because the plaintiff is or may not be credible.
136Generally speaking, claims brought under the Act relate to injuries suffered on a single occasion. Where multiple instances of injury occur, the plaintiff is required to show that each injury is, on its own, a “serious injury”. What follows is that when the compensable injury causes an aggravation of a pre-existing injury or condition, the plaintiff cannot simply show that the totality of their injuries is “serious”. Rather, the plaintiff must demonstrate that the aggravation is, in in its own right, “serious” in order to succeed in their claim.
137Applying the principles in Petkovski v Galletti,[17] the consequences of the aggravation injury must be assessed. To undertake the required assessment, the plaintiff must establish the pre-existing injury and what injury was caused by the subsequent workplace accident.[18] This requires the Court to separate out the components of the pre-existing injury from the alleged aggravation injury.
[17] (1994) 1 VR 436 (“Petkovski”) at 443
[18]De Agostino v Leatch & Anor [2011] VSCA 249 (“De Agostino”) at paragraphs [60]-[61]
138The Court is then required to assess the extent of impairment of a body function before and after the aggravation injury[19] and determine whether the additional long-term consequences of impairment (or loss) of a body function[20] consequent upon the aggravation injury, are “serious”.
[19]Petkovski at 444; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 (“Filipowicz”) at paragraph [34]
[20]Petkovski at 443
139Accordingly, the Court in aggravation cases must: identify the relevant injuries; delineate the impairment consequences of each one and then analyse whether the additional impairment caused by the compensable aggravation injury qualifies as a “serious injury” under the Act. This requires a comparison of the plaintiff’s condition before and after the compensable injury.[21]
[21]Filipowicz at paragraphs [31]-[34]
140These principles apply whether or not the pre-existing condition has become symptomatic.[22]
[22] Seckold v Transport Accident Commission [2025] VSCA 18 (“Seckold”) at paragraph [58]
141In assessing whether the additional impairment caused a compensable aggravation injury, if a plaintiff is suffering from a pre-existing degenerative condition, it is necessary to consider how the pre-existing condition affected the applicant as he was, and would likely have been, absent the injuries he sustained in the work accident.[23] The assessment includes looking at and considering the effect (and likely effect in the future) of a plaintiff’s pre-existing injuries.[24]
[23] Nichols v Robinson (2001) 33 MVR 83 at paragraphs [10], [19], [21] and [25]
[24] Bezzina v Phi & Anor [2011] VCC 423 at paragraphs [23]
142Where an injury is an aggravation of a pre-existing condition, and where there has been very little by way of any symptoms requiring medical treatment for a significant period of time following an accident, it is incumbent upon an applicant to establish the difference between the progression which would likely have occurred had the accident not happened, and the progression which has in fact occurred as a result of the aggravation caused by the accident. These are matters of evidence.[25]
[25]Seckold at paragraphs [55] and [57]
Parties’ submissions
143Both parties agreed that the plaintiff suffered an injury on 30 September 2021 as defined by the Act, being any “physical or mental injury” and including recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury.[26]
[26]Section 3 of the Act
144Further, there was no disagreement regarding the specific acts which resulted in the injury as described in the plaintiff’s first affidavit, namely that he was preparing a truck for realignment; he missed a step when coming out from underneath the dashboard; grabbed a handrail; felt a sharp pain through his body and then swung around the handrail before descending to the ground.
145The dispute between the parties centred upon whether the degenerative changes of the plaintiff’s lumbar spine were symptomatic before the work accident or not and whether they were rendered symptomatic on 30 September 2021. There was therefore some dispute about when, on 30 September 2021, the plaintiff consulted Dr Tan and the state of the plaintiff’s lower back condition immediately prior to the work accident.
146The plaintiff contended that although he fell in 2016 and experienced mild back pain as a result of the fall, that back pain had settled and he had recovered “pretty well” by the date of the work accident. Aside from recovering from the hernia operation, the plaintiff was physically fit, in good health and enjoying his life. The plaintiff was not receiving treatment for lumbar spondylosis/age-related degenerative changes of the plaintiff’s lumbar spine and had not undergone any prior scans or medical treatment, nor was there any longstanding history of ongoing significant back pain. Any back pain the plaintiff had experienced before 30 September 2021 was intermittent or transient only.
147Further, the attendance by the plaintiff upon Dr Tan on 30 September 2021, even if it took place before the work accident, was a single attendance. The plaintiff was not prescribed medication or other treatment. All that occurred was that the plaintiff was referred for a CT scan of his lumbosacral spine. Essentially, the plaintiff’s lumbar spondylosis was asymptomatic.
148The plaintiff contended that a Petkovski analysis of the aggravation injury was appropriate and Seckoldv Transport Accident Commission[27] could be distinguished. When a Petkovski analysis was undertaken, the plaintiff’s consequences were entirely referable to the work accident and not to the progression of the plaintiff’s degenerative condition. Prior to his injury, the plaintiff was able to work. He was an active man with plans for his retirement. Since the work accident, the plaintiff had suffered a total loss of earning capacity and was permanently disabled and unable to work. He required considerable treatment. The plaintiff now lived a sedentary life with daily back pain of real substance with associated loss of function. His sleep was disturbed, and he had lost his active pre-injury lifestyle, his ability to play with his grandchildren, to take long walks with his wife, to play guitar and to tinker in his shed. He could not return to horse training or car restoration. The impairment consequences to the plaintiff of the injury were “serious”.
[27][2025] VSCA 18
149The defendant’s position was that the work accident did not cause the changes in the plaintiff’s spine. The defendant submitted the plaintiff’s condition existed before the work accident. The condition was already symptomatic and worsening when the work accident occurred. The plaintiff already had back pain and sciatica in the legs. He had already been referred for a CT scan of his lumbar spine. The plaintiff’s case was one of aggravation. The plaintiff had a pre-existing degenerative spinal condition. That meant the plaintiff was required to prove the difference between his current symptoms and what his symptoms would have been absent the injury. In accordance with Seckold, it was therefore incumbent on the plaintiff to establish the difference between the progression of his degenerative lower back condition which would have been likely to have occurred absent the work accident, and the progression which had in fact occurred as a result of the aggravation caused by the work accident.[28] It was not sufficient for the plaintiff to simply compare the condition of his lower back as at the hearing date with the condition immediately before the work accident. The evidence had to delineate the impairment consequences of the injury from the consequences of the plaintiff’s prior degenerative lower back condition. The defendant submitted that the expert medical opinions did not enable the progression, which had in fact occurred as a result of the aggravation caused by the work accident, to be identified.
[28]Seckold at paragraph [55]
150The defendant submitted, firstly, that the medical histories which the plaintiff provided to the medico-legal experts were erroneous and did not encapsulate the totality of the history of the plaintiff’s lower back condition. For that reason, the medico-legal opinions were of little, if any, assistance. Secondly, there was no other evidence as to the likely extent of the progression of the plaintiff’s degenerative lower back condition absent the work injury. Without knowing what the trajectory of the plaintiff’s degenerative lower back condition would have been absent the work injury, it was impossible for the Court to undertake the exercise required to establish the nature and extent of the injury prior to the incident and after the incident. Without knowing the nature and extent of the plaintiff’s work injury, the Court was not in a position to assess the consequences and whether they met the requisite threshold of “serious”.
Credit
151The plaintiff submitted that he was a witness of truth. Consistent with Mr Wilde’s observation that the plaintiff was an “honest and sincere individual”, the plaintiff’s evidence, both written and oral, was honest, consistent and mostly corroborated by other objective evidence tendered.
152Having observed the plaintiff give evidence and be cross-examined, he struck me as an honest witness. He did not recall all events clearly or entirely consistently, but he did his best to recall what had happened and to recount the impact of his work accident on him. For instance, the plaintiff could not recall a consultation with Dr Tan on 30 September 2021, but he readily accepted that if matters were written in the clinical notes, they were probably correct. Similarly, there was a suggestion that the plaintiff had not reported the work accident straight away to his supervisor, Alena, but rather had waited until 4 October 2021 to make a report. However, it became apparent in cross-examination that while the plaintiff had not reported the accident to Alena on the day it happened, that was because Alena was not at work that day and, in any event, the plaintiff had reported the incident to someone else.
153The principal way the defendant sought to impugn the plaintiff’s credit was to try to demonstrate that the plaintiff had not been frank and had tried to assert that the consultation with Dr Tan occurred after he injured his back when in fact it had occurred before. The defendant pointed to the fact that in his affidavit material, the plaintiff said that he was referred for a CT scan but did not refer to the time of his consultation with Dr Tan.
154To assess the plaintiff’s credibility, I gave consideration to his affidavit material and to his answers when cross-examined. I also considered all the objective evidence.
When did the work accident occur?
155According to the Worker’s Injury Claim Form submitted by the plaintiff, the work accident occurred at 2.00pm on 30 September 2021.
156There was no dispute between the parties that this was the time of the accident.
157I find the work accident occurred at 2.00pm on 30 September 2021.
When did the consultation with Dr Tan occur?
158There was also no dispute between the parties that a consultation between the plaintiff and Dr Tan occurred on 30 September 2021. As outlined, at issue was when that consultation occurred, and specifically, whether the consultation occurred before or after the work accident.
159The plaintiff’s affidavits, on one view, suggested the consultation happened after he was injured and so the referral by Dr Tan of the plaintiff for a CT scan of his lumbosacral spine also occurred after the work accident. The defendant’s position was the consultation occurred before the plaintiff was injured.
160I am satisfied the plaintiff’s consultation with Dr Tan occurred at 9.18am on 30 September 2021 which was before the work accident.
161I make that finding for the following reasons:
162First, the Sunshine City Medical Centre records showed that a consultation occurred at 9.18am on 30 September 2021 between the plaintiff and Dr Tan. The consultation lasted until 9.34am.
163Secondly, the Worker’s Injury Claim Form showed the work accident occurred at 2.00pm on 30 September 2021.
164Thirdly, the timing of the consultation between the plaintiff and Dr Tan was consistent with the employer’s records of when the plaintiff clocked on and off work on 30 September 2021. The plaintiff agreed in cross-examination that his usual working hours were 7.30am until 4.00pm and the employer’s records showed that the plaintiff clocked off work at 8.17am and returned at 10:56am and then clocked off for the rest of the day at 3.28pm. It was suggested to the plaintiff in cross-examination, that if he clocked off at 8.17am and clocked back on at 10.56am, it would have been possible for him to travel half-an-hour each way to consult Dr Tan in the intervening period. The plaintiff did not recall clocking on and off, or attending Dr Tan, but he accepted it would have been possible for him to get to a consultation with Dr Tan in the time suggested.
165Fourthly, the timing of the consultation between the plaintiff and Dr Tan was not inconsistent with the plaintiff’s evidence. The plaintiff could not remember the consultation with Dr Tan, when it occurred or the reason for his attendance.
166Fifthly, according to Dr Tan’s clinical notes, the purpose of the plaintiff’s consultation with Dr Tan was for the plaintiff to obtain medical clearance in respect of an umbilical hernia injury sustained in November 2020. The reason for the consultation was not a “work accident”, “fall at work” or “injury to the lower back” as might have been expected if the plaintiff was consulting Dr Tan after the work accident. The plaintiff accepted he had a discussion with Dr Tan and obtained a medical certificate in relation to his umbilical hernia.
167Sixthly, although Dr Tan referred the plaintiff for a CT scan of his lumbosacral spine during the consultation, in cross-examination, the plaintiff conceded that the first time he discussed the work accident with Dr Tan was on 6 October 2021. This is also consistent with the plaintiff’s consultation with Dr Tan on 30 September 2021 having occurred before the work accident.
168Although I found the consultation with Dr Tan occurred before the work accident, I do not consider that meant the plaintiff had deliberately lied or that he had set out to convey that his lower back was not symptomatic when in fact it was. In my view, the attempt to discredit the plaintiff failed. First, although the plaintiff’s affidavit material did not specifically refer to the consultation with Dr Tan on 30 September 2021, it did refer to the plaintiff having a CT scan on 4 October 2021 which was an outcome of the plaintiff’s consultation with Dr Tan. Secondly, the plaintiff readily conceded that if there were clinical notes available from Dr Tan, they were most probably accurate. He said he simply could not remember attending Dr Tan or the consultation or what was discussed. I accept the plaintiff’s evidence. My assessment was the plaintiff simply could not remember the consultation with Dr Tan on 30 September 2021. In those circumstances, not obtaining notes of the consultation makes sense.
169I do not consider the defendant’s cross-examination impacted the plaintiff’s credit.
170I find the plaintiff was an honest and credible witness.
Were the medical histories provided by the Plaintiff to the medico-legal experts erroneous, inaccurate, incomplete or varied?
171The defendant also contended that even if the plaintiff was generally credible and reliable, the opinions of the medico-legal experts were of little, if any, value and should be disregarded because the medical histories the plaintiff provided to the medico-legal experts were erroneous, inaccurate, incomplete and varied or failed to disclose matters that properly ought to have been disclosed. It was suggested to the plaintiff that he did not disclose to the experts that he had suffered a lower back injury before the work accident. The plaintiff also did not provide the medico-legal experts with Dr Tan’s clinical notes of his consultation with the plaintiff on 30 September 2021. For example, it was suggested Dr Doig was not told anything about the plaintiff’s prior back problems. He was only told about the plaintiff’s prior hernia and prostate biopsy. Mr Wilde was only told that the plaintiff had occasional back pain prior to the work accident but that the back pain did not necessitate the plaintiff taking time off work or seeking medical care. Associate Professor Love stated that the plaintiff did “not describe a history of back pain prior to the incident of September 2021”. Additionally, the plaintiff did not inform the medico-legal experts that he had a pre-existing degenerative lower back condition and/or symptoms of back pain before the work accident. Alternatively, the plaintiff downplayed or minimised the significance of the lower back injury, his pre-existing degenerative lower back condition or symptoms of back pain. Further, it was suggested the underlying medical histories were starkly different from what was recorded in Dr Tan’s clinical notes or explained by Dr Tan. Consequently, it was not possible to conclude that the consequences reported by the plaintiff to the medico-legal experts, resulted from the work accident.
172The defendant contended that if the medico-legal opinions were of little, if any, value, the primary documentary evidence of the plaintiff’s back condition before the work accident was Dr Tan’s notes and there was nothing in those notes which explained the nature and extent of the plaintiff’s back condition after the work accident. In addition, Dr Tan’s notes were not provided to Professor Bittar to delineate the consequences of the incident on 30 September 2021 from the consequences of a prior back injury. Although Professor Bittar understood there was some lower back discomfort from time to time, he did not have a full appreciation of the plaintiff’s lower back condition prior to the work accident. The plaintiff was unable to discharge the onus of demonstrating that the consequences of the aggravation injury were “serious”.
173The plaintiff submitted that the histories obtained by the medical experts were entirely consistent with the facts. Professor Bittar noted that the plaintiff had a history of intermittent lower back pain prior to the incident which was consistent with the one-off attendance the plaintiff had with Dr Tan on 30 September 2021. Further, although the plaintiff accepted that neither Mr Wilde nor Associate Professor Love were provided with such a history, the histories they were provided with were broadly consistent with the plaintiff having a lower back condition, albeit that it did not impair his ability to engage in heavy and manual work or require treatment. Each of the doctors obtained a history of a significant worsening of the plaintiff’s lower back condition consistent with plaintiff’s account, and that history was not challenged by the defendant.
174In serious injury applications, generally the credibility of the plaintiff is critically important to the Court’s assessment of the plaintiff’s account of his symptoms and pain. The plaintiff’s credibility has a direct bearing on other evidence presented, principally the evidence of treating health practitioners and medico-legal experts. The opinions of doctors and specialists are essentially dependent on the credibility and reliability of the plaintiff’s account of their medical history and their symptoms. Therefore, it is incumbent upon a plaintiff to establish the reliability of the histories provided to the medical witnesses to assist the Court in making its determination.[29]
[29]See for example Haidar v Transport Accident Commission (supra) at paragraph [30]; Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
175The plaintiff, whilst conceding that not all of the doctors were informed of the plaintiff’s prior back issues, argued that the reports were still broadly consistent with the facts of the case and therefore their reliability was not diminished.
176I accept the plaintiff’s submission.
177First, as Mr Saunders, on behalf of the plaintiff, submitted, the accounts given by the plaintiff of his back pain and symptoms were broadly consistent with each other.
178As previously outlined, Professor Bittar took a medical history from the plaintiff which was stated in his report to be “significant for an umbilical hernia, which was work-related”. The plaintiff was noted to have been “managing that condition leading up to the onset of his lower back pain”. Professor Bittar did not refer to the plaintiff suffering a fall in 2016, or having a degenerative condition of his lower back, but he did refer to the plaintiff having had “occasional back pain from time to time”.
179Associate Professor Love reported the plaintiff’s history of having had umbilical hernia repair surgery. The past history section of Associate Professor Love’s report did not mention that the plaintiff had a history of back pain prior to the work accident. It also did not refer to the plaintiff having a degenerative condition of his spine. However, Associate Professor Love did refer to the fact the plaintiff had a fall in 2016 and injured his back. He noted the plaintiff had recovered. Associate Professor Love diagnosed the plaintiff with significant age-related degenerative changes of the lumbar spine and said those changes have been rendered symptomatic by the incident of “21 [scil 30] September 2021”.
180Mr Wilde did not refer to the plaintiff’s fall in 2016 or to a pre-existing spinal condition, but he identified that the plaintiff had acknowledged that prior to the work accident, the plaintiff experienced occasional back pain. Mr Wilde said the plaintiff told him he never took time off work or sought medical care. Mr Wilde found the plaintiff to be honest and sincere.
181Dr Doig did not refer to the plaintiff as having a pre-existing spinal condition or other symptoms of back pain prior to the work accident. He obtained a medical history from the plaintiff of a fall in 2016, resulting in back pain. Dr Doig stated that the plaintiff’s back pain had settled down.
182Both Professor Bittar and Mr Wilde identified that the plaintiff had “occasional back pain” prior to the work accident. Neither Professor Bittar nor Mr Wilde mentioned the fall in 2016 or the presence of a pre-existing degenerative condition of the plaintiff’s lumbar spine. Nothing turns on this.
183I have found the plaintiff to be credible and honest. I accept the plaintiff did his best to identify for the medico-legal experts, the matters that were relevant to his medical history. He was not a medical practitioner and so I do not criticise him if he omitted something a doctor might have considered to be relevant.
184The plaintiff’s evidence was he had a fall in 2016, he had recovered and the back pain he had experienced at the time of the fall in 2016 had resolved. No doubt the plaintiff did not consider that fall to be relevant.
185The plaintiff said in his second affidavit sworn 5 June 2025, in relation to the pain he experienced as a result of his hernia, that the hernia pain had settled and at the time of the work accident, the hernia was causing him little, if any, discomfort. Dr Tan’s clinical notes also identified that the plaintiff’s hernia injury had improved. The plaintiff had been able to return to working around 40 hours per week and was seeking medical clearance.
186The plaintiff described his employment with the employer as involving heavy, awkward and repetitive work. He described the tasks he was required to perform and said they required him to bend down underneath trucks or parts of trucks, and to be on his stomach, side or back in order to work underneath the dashboard of a truck. He was in those awkward positions for extended periods of time.
187Due to the size of the trucks, he also had to climb ladders or steps in order to access the cabin. If a truck was being repaired or had its tyres removed, the cabin was further off the ground. This meant the plaintiff had to climb further distances to get in and out of the cabin.
188Additionally, as part of the plaintiff’s job, he was regularly required to use a large battery booster to jumpstart trucks. The boosters weighed close to 100 kilograms. The plaintiff said he was required to try to push, lift and manoeuvre the boosters around the workshop and also between the employer’s multiple warehouses in the street, and often into yards where trucks would be located. This meant that he had to push the battery boosters regularly over gravel surfaces.
189Taking account of the tasks the plaintiff’s job required him to perform, and the fact he had returned to working 40 hours per week, and all the other evidence, I am satisfied the pain referable to the plaintiff’s hernia injury had resolved, or at least was very minimal and at most intermittent, when the work accident occurred.
190Further, I accept the plaintiff genuinely had no memory of the consultation with Dr Tan on 30 September 2021 and specifically, that it had occurred before he was injured.
191Having found the plaintiff to be an honest witness, I accept the plaintiff was only experiencing back pain occasionally. The plaintiff was receiving no treatment for it and there had been no radiological investigations undertaken of the plaintiff’s spine. In those circumstances, the plaintiff could not have been expected to mention back condition – pre-existing or otherwise – to the medico-legal experts. At the date of the work accident, he had not been diagnosed with any such condition.
192Insofar as it might be contended that the plaintiff did not inform Dr Doig or Associate Professor Love that his back had occasional pain, this is also of no moment. The plaintiff informed Dr Doig that he had a fall in 2016. Both Dr Doig and Associate Professor Love were provided with a report from Dr Tan dated 16 March 2021. Dr Doig was provided with various clinical notes. Associate Professor Love also had before him reports from Dr Tan dated 1 February 2021, 10 February 2022 and 27 October 2024.
193In my view, both Dr Doig and Associate Professor Love had before them the means to enquire into any matters they considered relevant to formulating their opinions. While, as Mr Kumar, who appeared on behalf of the defendant, said, it may have assisted the medico-legal experts to be asked to specifically comment on the clinical notes of Dr Tan, in my view, the medico-legal experts had all relevant information before them to ask whatever questions were relevant to formation of their opinions. Failure to refer to a history of back pain in their reports, does not mean the plaintiff failed to disclose a relevant history to the doctors, if it was even necessary for the plaintiff to have made disclosure beyond that which he had made.
194Even if the histories provided to the medico-legal experts contained some gaps, I am satisfied the plaintiff provided broadly consistent medical histories of prior back pain to each of the medical experts. There is no reason to reject the expert medical opinions.
195Further, even if the medical histories provided to the experts were erroneous, that does not mean the reports are of little, if any, value or that they must automatically be disregarded. For the reasons expressed, I do not consider the medico-legal reports were premised on erroneous or incomplete medical histories.
196The effect is that I accept that any consequences referred to by the medico-legal experts occurred because of the work accident, as opined by Professor Bittar.
Compensable injury
What was the nature and condition of the Plaintiff’s back before the work accident?
197The plaintiff said he had a fall in 2016 and had experienced mild lower back pain. The lower back pain had fully settled down and the plaintiff’s lower back had recovered “pretty well”. At the time of the work accident, other than recovering from the hernia operation, the plaintiff was otherwise fit and in good health. He was able to work 8 hours per day, five days per week. The injury he suffered in the work accident was a soft-tissue injury to his lower back which aggravated pre-existing asymptomatic degenerative changes in his lumbar spine.
198The defendant submitted that before the work accident, the plaintiff had a progressive condition, namely age-related degenerative change of the lumbar spine, which was already “quite symptomatic”. The plaintiff was having increasing lower back pain, with sciatic pain shooting into both his legs, consistent with the clinical note recorded in the report of the CT scan taken on 4 October 2021. The plaintiff was also having difficulty walking. The back pain was not stable. The back pain was not minor. It had not come on overnight. The clinical notes of Dr Tan noted that the plaintiff’s “employer [wanted] a 100 % clearance that this patient has recovered fully”. The defendant suggested this was also supportive of the presence of ongoing concerns by the plaintiff’s employer about the plaintiff’s suitability for work.
199Dr Tan considered the plaintiff had a lower back injury characterised primarily by a posterior central L5-S1 disc protrusion with marked bony left L5-S1 neural canal stenosis. This had resulted in left L5 nerve root impingement, further complicated by multilevel degenerative facet joint disease.
200Dr Laidler, the plaintiff’s treating osteopath, in his report dated 25 September 2024, diagnosed the plaintiff with “established chronic lumbar spine spondylo-arthropathy most noted at L5/S1”.
201Professor Bittar considered that as a result of the work accident, the plaintiff had lower back pain and referred leg pain secondary to aggravation of lumbar spondylosis. This necessarily meant that in Professor Bittar’s opinion, the plaintiff had pre-existing lumbar spondylosis.
202Dr Doig diagnosed a soft-tissue injury to the plaintiff’s lower back with aggravation of pre-existing degenerative change.
203Mr Wilde diagnosed the plaintiff with degenerative change in the lumbar spine, particularly at L4-5 and L5-1.
204Associate Professor Love concluded that the plaintiff had “… significant age-related degenerative changes of the lumbar spine”.
205I accept that prior to the consultation with Dr Tan on 30 September 2021, the plaintiff had experienced only “occasional back pain”. That was as far as the evidence went.
206First, the plaintiff did not have a diagnosed progressive condition of the spine before the work accident which was productive of pain.
207Secondly, the plaintiff was not receiving medical treatment for any diagnosed progressive condition of the spine before the work accident, productive of pain.
208Thirdly, evidence from the plaintiff’s treating practitioners did not support a finding of significant pain. There was evidence the plaintiff experienced some pain in his lower back after the fall in 2016, but the pain was described as “mild”. There were no clinical notes that the pain had been ongoing. Most probably any back pain from the fall in 2016 resolved by the date of the work accident.
209Fourthly, the plaintiff did not report a history of ongoing significant pain to the medico-legal experts. The defendant contended that the histories provided to the medico-legal experts were erroneous and consequently, the Court should not accept that the plaintiff was without pain. I do not agree. I have found the medical histories were not erroneous.
210Further, I do not accept the Court is required to find that the plaintiff had a degenerative condition of his back, or that it was symptomatic and causing the plaintiff considerable pain or that the condition was progressive, before the plaintiff saw Dr Tan on 30 September 2021 simply because when the plaintiff saw Dr Tan, Dr Tan had noted the plaintiff had “increasing back pain” and referred the plaintiff for a CT scan. The reason why the CT scan was ordered was not recorded in the clinical notes, so it is impossible to know why the CT scan was sought. It may have been that Dr Tan was being cautious in providing a medical clearance for the plaintiff. Further, Dr Tan’s notes referred to “increasing back pain”; however, that description does not enable a conclusive assessment of the nature or severity of such back pain. The pain may have been increasing from an initial base of no pain. And the increase may not have been much. Further, noting that the plaintiff was still recovering from abdominal hernia repair surgery, some back pain may have been referable to that surgery rather than to any degenerative condition. In my view, some back pain in that context would be understandable and may not have meant the plaintiff’s spinal disease had become symptomatic, if indeed it was even degenerative or progressive at that time.
211Fifthly, the plaintiff did not complete a WorkCover Claim Form until after he saw Dr Tan and had obtained the results of the CT scan. If his back had been symptomatic and painful at the time the plaintiff saw Dr Tan on 30 September 2021, the plaintiff might have been expected to have submitted a WorkCover Claim Form sooner. The fact that he did not, tends to a conclusion that the plaintiff’s back was not causing him much pain at all on 30 September 2021 until after the work accident.
212Having found the plaintiff did not have a significant history of back pain prior to the work accident, it is understandable that the plaintiff may not have reported such a history to the medico-legal experts and that the medico-legal experts, specifically Professor Bittar, may not have referred to such a history in their reports. In those circumstances, there is no basis not to accept the medico-legal experts’ reports or their assessment that the consequences complained of by the plaintiff emanated from the work accident rather than from an already symptomatic lower back condition
213In my view, having made the findings I have made, I accept Professor Bittar’s opinion and find that the plaintiff had largely asymptomatic lumbar spondylosis at the time of the work accident.
214I make that finding because, first, the plaintiff said any back pain he experienced as a result of the fall in 2016 had resolved. The plaintiff was not seriously challenged about this.
215Secondly, the fall in 2016 was five years before the work accident and the clinical records did not suggest the effects of the fall for the plaintiff were ongoing.
216Thirdly, while the plaintiff said that he had experienced back pain before the work accident, the clinical records did not provide support for the conclusion that back pain was significant or ongoing. At most, as the plaintiff submitted, it was transient. This was consistent with the fact that the plaintiff had returned to work after his hernia operation – initially on a graduated basis – and had increased his working hours to 8 hours per day, five days per week. It was also supported by the many hobbies the plaintiff was pursuing at the time he saw Dr Tan on 30 September 2021, such as restoring cars, gardening and going on walks with his wife. As the plaintiff said, and the evidence supported, including the affidavit from the plaintiff’s wife, the plaintiff was physically fit and in good health. Further, Dr Tan’s notes, insofar as they referred to “increasing” back pain, were a record of a single attendance only and did no more than indicate that on the morning of the work accident, the plaintiff had experienced an incident of back pain.
217Fourthly, the plaintiff was not challenged about the duration, frequency or intensity of the pain he experienced.
What was the nature and condition of the Plaintiff’s spine at the date of the hearing?
218The plaintiff submitted the injury he sustained as a result of the work accident was an aggravation injury of otherwise asymptomatic lumbar spondylosis characterised primarily by a posterior central L5-S1 disc protrusion with marked bony left L5-S1 neural canal stenosis.
219This was consistent with the opinions of Dr Tan and Professor Bittar. The plaintiff also relied on the opinions of Mr Wilde and Associate Professor Love.
220As I have outlined, prior to the work accident, there was no evidence the plaintiff had been diagnosed with a pre-existing spinal condition. He had not received a diagnosis, and he did not have significant back pain. He had “occasional back pain” and sciatic pain when he consulted Dr Tan on 30 September 2021. There was no evidence that the plaintiff had a “progressive” condition. None of the experts was asked to opine about whether lumbar spondylosis constituted a progressive condition as that condition may be required to be understood for the purposes of assessing the effects of the decision in Seckold. On that basis, there was no evidence the spinal condition suffered by the plaintiff was a progressive condition.
221The plaintiff accepted that he had a pre-existing degenerative condition and that the injury he suffered as a result of the work accident was an aggravation injury. Specifically, the plaintiff contended he suffered an aggravation of largely asymptomatic degenerative changes to his spine.
222Taking account of all the evidence, I find that during the work accident, the plaintiff suffered an aggravation injury, specifically, an aggravation of an otherwise previously unknown and largely asymptomatic degenerative spinal condition, namely lumbar spondylosis. That finding was consistent with the opinions of Dr Tan, Professor Bittar, Mr Wilde and Associate Professor Love. To the extent the defendant suggested the opinion of Professor Bittar should be rejected because the medical history the plaintiff had given to him was incomplete and did not refer to the plaintiff’s pre-existing back condition, I do not agree for the reasons I have already expressed.
Permanence
223The medical experts largely agreed that:
(a) the plaintiff’s condition is permanent;
(b) his symptoms will persist for the foreseeable future;
(c) his condition is unlikely to improve significantly and will likely deteriorate with the passage of time; and
(d) his current treatment may assist in managing his condition and that surgical treatment is unlikely to be necessary or assist the plaintiff.
224Based on all the evidence, I am satisfied the plaintiff’s injury is permanent, in the sense that it will persist and there will be no significant improvement over time.[30]
[30]Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 at paragraph [19]
How is the analysis of the seriousness of the impairment consequences of the aggravation injury to be undertaken?
225Where an injury is said to arise from an aggravation of an earlier injury, the Court’s task is to analyse the extent of impairment of a body function before and after the relevant injury, and the additional impairment must be capable of being described as “serious”. This involves:
(a) identifying each injury;
(b) identifying and separating the impairment consequences of each injury; and
(c) identifying whether the additional impairment caused by the aggravation injury qualifies as a “serious” injury.
226As part of analysing the aggravation injury, the Court must determine the extent to which the plaintiff’s impairment is caused by the work accident, rather than another cause.[31]
[31]De Agostino at paragraph [60]
227The plaintiff accepted that this is a case of an aggravation of a prior condition; however, the plaintiff contended that the plaintiff’s prior lower back condition was minor, intermittent and transient, essentially asymptomatic, and warranted the ‘before and after’ approach identified in Petkovski. The plaintiff submitted he was not required to establish how his degenerative lower back condition would have been likely to progress absent the work accident, and the progression which had in fact occurred as a result of the aggravation caused by the work accident.
228The defendant submitted the plaintiff had a progressive degenerative condition of his spine and because the plaintiff had a progressive degenerative condition of his spine, and his spine was symptomatic before the work accident, that gave more weight to the plaintiff’s prior back symptoms, such that the approach in Seckold was required.
229It is necessary for me to explain the approaches in Petkovski and Seckold to demonstrate the appropriate analysis.
230In Petkovski, the applicant was injured in a car accident which aggravated a pre-existing degenerative spinal condition. He applied to this Court for leave to bring common law proceedings under s93 of the Transport Accident Act 1986 (Vic). The judge gave leave to bring proceedings. The respondent then appealed, arguing that the applicant's pre-existing condition constituted a “serious injury” and that, although the accident might have aggravated the pre-existing condition, it did not cause a serious injury.
231The Court of Appeal dismissed the respondent’s appeal and held that where the case was one of aggravation of a pre-existing condition, “the applicant must establish what injury was caused by the accident … an analysis must be made of the extent of impairment of a body function before and after the relevant injury”, and the additional impairment “must involve serious long-term impairment … of a body function”.[32]
[32]Petkovski at 444
232Then quoting Humphries,[33] the Court of Appeal affirmed that for an injury to qualify as “serious”, “there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term”.
[33]at 140
233The case of Seckold was concerned with the application of the principles in Petkovski and Humphries to a case involving an aggravation of pre-existing arthritic changes to the applicant’s right wrist. The applicant was riding a motorcycle when it collided with a motor vehicle. The applicant sought leave to commence common law proceedings for the injuries he received as a result of the accident, namely serious long-term impairment to his right wrist. The applicant’s right wrist was injured in the accident, although his right wrist symptoms were only mild and were not significant enough to be given any prominence at the time.
234Judge Tran of this Court found that the accident aggravated pre-existing arthritic changes in the applicant’s right wrist; however, she was not satisfied that the impairment was serious or that the applicant’s then current level of impairment was long-term.
235Noting that the condition existed prior to the accident and would, in the ordinary course, have progressed, with or without the occurrence of the accident, the Court of Appeal upheld the decision, clarifying:
“Where the injury was an aggravation of a pre-existing condition, and where there had been very little by way of any symptoms requiring medical treatment for a significant period of time following the accident, it was incumbent upon the applicant to establish the difference between the progression which would likely have occurred had the accident not happened, and the progression which has in fact occurred as a result of the aggravation caused by the accident.”[34]
[34] Seckold at paragraph [55]
236The Court of Appeal in Seckold stated that there was little to distinguish their decision from the decision in Petkovski.[35]
[35] Seckold at paragraph [56]
237What is critical is that the test described in Seckold applied in cases where there was a clearly established progressive medical condition which would have progressed, with or without the occurrence of the accident. Further that an applicant had experienced minimal symptoms requiring medical treatment for a significant period of time following the accident.
238In Seckold, the applicant had arthritic changes. There was no dispute that the condition was progressive. The applicant’s first reference to any problem with his right wrist was a consultation with an osteopath seven months after the accident, where his right wrist was described as “a little sore”. The applicant then accepted that he did not revisit the osteopath until a year-and-a-half later, at which time he referred to his back and left shoulder, but made no mention of his wrist. The applicant did not feel it necessary to refer any problems he had with his wrist to any medical practitioner during the intervening period of almost two years. Rather, he continued to work fulltime. If he took any painkilling medication, it was over-the-counter-type medication. The link between the symptoms the plaintiff complained about a year-and-a-half after the accident and the accident, was not explained. There was a need for evidence – in that case, it was suggested medical opinion was necessary – to explain that link, otherwise it was impossible to say that the consequences experienced a year-and-a-half after the accident and subsequently, were referable to the accident. They could just as probably have resulted from the progressive nature of the arthritic condition.
239This is not the case here.
240In my view, the test in Seckold is only going to be relevant in circumstances where, first, there is a clear progressive medical condition established by a diagnosis before the accident, causing injury to an applicant and from which an analysis can be made as to the future trajectory of such a progressive condition. In my view, if a defendant seeks to contend that a plaintiff has a progressive condition, in the absence of a diagnosis to that effect before the work accident causing the claimed injury, a defendant has an evidential onus of putting forward evidence that the medical condition was in fact progressive. Where the defendant does not adduce such evidence, an assumption cannot be made that a condition is progressive.
241Secondly, Seckold will only apply where no considerable symptoms arise within a reasonable period of time after an injury. I have reached that conclusion because it is only in those cases, that the question of causation becomes more prominent as it may be unclear whether a plaintiff’s current symptoms and consequences are a result of the index injury, or whether they are the natural trajectory of a progressive degenerative condition. In such a situation, a court may require evidence of what the progress of the degenerative condition would have been absent the injury. Indeed, this was the issue before her Honour Judge Tran in Seckold v Transport Accident Commission.[36]
[36][2024] VCC 343
242Her Honour found that in the absence of such evidence, it was not clear that the plaintiff’s deterioration could be attributed to the motorbike accident as opposed to the consequences of the pre-existing degenerative changes.
243The plaintiff’s circumstances in this case are very different.
244First, it is not clear, that prior to the work accident, the plaintiff even had a spinal condition which was progressive. The plaintiff had not been diagnosed with such a condition.
245Secondly, even if the plaintiff did have a progressive degenerative spinal condition, the plaintiff suffered the injury in the work accident on 30 September 2021 and ceased working less than a fortnight later, on 12 October 2021. He remained off work until 20 April 2022. Even upon his return, the plaintiff could not return to his normal duties and required an apprentice to be his “hands and legs”. Although he was not referred for surgery, the plaintiff’s affidavit evidence demonstrated that he sought medical treatment. Initially after the incident, the plaintiff attended physiotherapy appointments for about six months and had some dry needling. The plaintiff also received osteopathy twice a week for over 12 months and took non-prescription medication to assist with the pain. In essence, the plaintiff’s symptoms which were very considerable virtually immediately after he was injured and his practically immediate deterioration after the work accident, ultimately requiring him to stop work and to seek medical treatment, tend to the conclusion that the most probable cause of the plaintiff’s injuries was the work accident and that its effects were virtually immediate and substantial.
246Of all of the medico-legal reports, only Professor Bittar’s report addressed the issue of causation as a stand-alone item. In his opinion:
“… [the plaintiff’s] employment has been a significant contributing factor. Specifically, the injury which occurred at work on 30 September 2021 remains a significant contributing factor to his ongoing pain, disability, and requirement for treatment.”
(emphasis added.)
247I accept Professor Bittar’s report for the reasons previously stated.
248Accepting Professor Bittar’s opinion, the most probable cause of the plaintiff’s injuries was the work accident. There is no issue about causation and the principle in Seckold is not relevant. The standard analysis from Petkovski is sufficient.
249The fact that the plaintiff had a prior condition muddies the waters of delineation, particularly where it is not even clear whether the lumbar spondylosis condition was progressive. It was degenerative, and perhaps to Mr Kumar’s point, may have one day eventuated to the present state, but the Petkovski analysis does not require me to engage in hypotheticals about the likelihood of future events. There was no evidence adduced to show that on 30 September 2021, the plaintiff had a progressive condition and that absent the injury in the work accident, the plaintiff would certainly have come before this Court with the same symptoms due to a degenerative condition which was in fact progressive. The plaintiff’s degenerative condition was unknown at the time of the work accident but, because with the benefit of hindsight it is now known it existed, I am satisfied, on the balance of probabilities, that it was aggravated and rendered symptomatic by the work accident. Consequently, I find that the impairment consequences (as compared to the cause of the degenerative condition) of the injury were a result of the work accident on 30 September 2021.
250At this point, I note the defendant’s submission that if I found that that the plaintiff’s symptoms relating to his back condition were attributable to the compensable injury, then the defendant would not submit that that the plaintiff failed to meet the threshold of “serious” in relation to either pain and suffering or pecuniary loss.
251Notwithstanding the defendant’s submission, I nevertheless assess that the plaintiff’s injury meets the test for a “serious injury” under the Act.
252The plaintiff argued that the plaintiff suffered a substantial aggravation from the work accident which required extensive treatment and rendered the plaintiff unfit to work. Adopting a Petkovski analysis of the aggravation injury (that is, a strict before and after analysis), I find that before the plaintiff was injured, the plaintiff was leading a full and active life. Other than recovering from the hernia operation, he was otherwise physically fit and was in good health. He was able to work 40 hours per week in a job he enjoyed and found satisfying. His back was no more than occasionally painful. I find, because the plaintiff was able to work in a very physically demanding role, any pain he suffered was minimal and transient. The plaintiff was not taking prescription or other medication, and he slept well. He restored cars and played the guitar. He enjoyed going on walks with his wife most nights and on the weekends. He spent time gardening and enjoyed watching football and making/repairing things. He did his own car maintenance and enjoyed regular intimacy with his wife. He was looking forward to interacting with his grandchildren as they became older.
253Since he was injured, I find that all of the plaintiff’s consequences, save for a very small, almost negligible, degree of intermittent pain, were as a result of the work accident. I find that the plaintiff has suffered a total loss of earning capacity and is now permanently disabled and unable to work. Before the plaintiff suffered his injury, he was able to work for 40 hours per week. Whatever medical condition of the back the plaintiff was suffering from on 30 September 2021, it was not impairing his ability to work in a job he loved. The plaintiff’s total incapacity for any work now means that he has suffered a more than 40 per cent loss of earning capacity. The medical evidence supports the position that the plaintiff’s loss of earning capacity is permanent. Based on the plaintiff’s loss of earning capacity alone, the impairment consequences of the plaintiff’s injury are such that the plaintiff’s injury constitutes a “serious injury”.
254It is strictly unnecessary for me to go further and consider whether the plaintiff’s claimed consequences with respect to pain and suffering meet the relevant threshold to constitute a “serious injury”; however, for completeness, I will make the following brief observations.
255I am satisfied that before the plaintiff was injured, the plaintiff was an active man with serious plans for his impending retirement. At most he had minimal intermittent daily pain. He now lives with pain and constant pressure across his lower lumbar spine. The pain varies in character and could be dull, stabbing, sharp or aching, with an average severity of 8 out of 10. The pain could also reach a level of 10 out of 10.
256He experiences intermittent leg pain when his lower back pain flares up. This occurs frequently throughout the day and is dull and aching in character. The severity of the plaintiff’s leg pain is an average of 6 out of 10.
257Further, the plaintiff experiences pain in his buttocks and hamstrings which occurs a few times each day and can last for up to a couple of hours. The plaintiff has worsening leg symptoms, which are now travelling into both his legs and ankles, though the symptoms were worse on the right side and generally worse in the morning and at night.
258The plaintiff’s injury impacted his mobility. His ability to sit is limited to 10 minutes and he can walk for no more than 10 to 15 minutes at a time before he needs to rest. Professor Bittar’s report provided the opinion that the plaintiff is now severely restricted in relation to bending, lifting, twisting, stooping, pushing, pulling, or heavy lifting; repetitive and/or prolonged use of the lower back; sustained kneeling, squatting or crouching; prolonged sitting, standing or walking, and walking up or down steep inclines or declines. The plaintiff’s lower back and leg pain increase whenever he bends, twists and lifts.
259The plaintiff continues to consult his general practitioner at the Sunshine City Medical Centre and also the Curlewis Medical Centre nearby. The plaintiff still takes two Panadol Osteo each evening and Panadol from time to time as needed. He applies Voltaren Gel to his back. A few times each week, he needs to take an additional Panadol or a Nurofen tablet to manage the pain. About once a fortnight, the plaintiff uses Tramadol for any severe pain. He continues to attend osteopathy appointments on a weekly basis for massage therapy and dry needling. He also does gym exercises and uses the hydrotherapy pool. The plaintiff wears a brace for support which he finds assists his posture and his lower back pain.
260The plaintiff’s sleep is interrupted, and he wakes unrefreshed.
261The plaintiff now lives a largely sedentary life with daily back pain of real substance with associated loss of function. His sleep is disturbed. He has experienced the loss of his active pre-injury lifestyle, including the ability to play actively with his grandchildren, take long walks with his wife, play guitar and tinker with things in his shed. I find that a return to horse training was not properly a consequence of the plaintiff’s injury, but an inability to return to car restoration was a relevant consequence for him.
262I accept the plaintiff has difficulty with some daily activities including driving, home maintenance and gardening.
263The plaintiff’s intimate relationship with his wife has been affected.
264The plaintiff can no longer enjoy the same activities with his grandchildren.
265His social activities have decreased.
266I otherwise accept the plaintiff’s claimed consequences, particularly as they were corroborated by his wife’s affidavit. The plaintiff’s wife was not challenged about her evidence.
267Based on the opinions of Dr Tan and Associate Professor Love, the plaintiff’s condition is likely to deteriorate in the future. This is a matter I may take into account, and I do.[37]
[37]Connelly v Transport Accident Commission [2024] 73 VR 257 at paragraphs [49]
268I also take into account, for the purposes of assessing the plaintiff’s pain and suffering consequences, that the plaintiff is no longer able to work in his chosen occupation.
269I find that the pain and suffering consequences experienced by the plaintiff by reason of the aggravation injury alone, are subjectively serious.
270I further find that the pain and suffering consequences are objectively serious in comparison with other cases in the range of comparable cases. The consequences of the plaintiff’s back injury can be described as being “more than significant or marked, and as being at least very considerable”.
Conclusion
271The plaintiff has sustained a “serious injury”. I grant the plaintiff leave to commence proceedings for damages for pain and suffering and loss of earning capacity.
272I will hear argument with respect to costs.
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