Carson v Victorian WorkCover Authority; Carson v Transport Accident Commission

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
(Not) Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-04122
CI-22-04968

DAVID CARSON	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant
and
DAVID CARSON	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	22, 23, 24, 25 January 2024
DATE OF JUDGMENT:	26 March 2024
CASE MAY BE CITED AS:	Carson v Victorian WorkCover Authority; Carson v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2024] VCC 354

RULING
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the spine – pain and suffering – loss of earning capacity – course of employment – “transport accident”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 s335(2)(d), s326; Transport Accident Act s3(1)
Cases Cited:Belgrave Heights Christian School v Moore [2020] VSCA 240; Metro Trains Melbourne Pty Ltd v Graeme Allan Keay [2023] VSCA 223.

Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – impairment of the spine – withdrawal of admission – “transport accident”
Legislation Cited: Transport Accident Act s3, s93
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Asic v Comcare (2020) FCAFC 105; BC202005250; Belgrave Heights Christian School v Moore [2020] VSCA 240; Chan v Valmorbida (No 2) [2020] VSC 633; Corolovski v Victorian WorkCover Authority [2021] VCC 565; Cox v Cox [2013] VSC 318; De Agostino v Leatch & Transport Accident Commission [2011] VSC 249; Divcon (Aust) Pty Ltd v Devine Shipping Pty Ltd [1996] 2 VR 79; Dordev v Cowan & Ors [2006] VSCA 254; Foursquare Construction Management Pty Ltd v Victorian WorkCover Authority (2022) 68 VR 415; Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries and Anor v Poljak [1992] 2 VR 129; Insurance Commission of Western Australia v Container Handlers Pty Ltd;Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Koutroulis v Transport Accident Commission (TAC) [2011] VSC 159; Petkovski v Galletti [1994] 1 VR 436; Porter v Bonojero [2000] VSC 265; Rowe v Transport Accident Commission [2017] VSCA 377; Rigato Farms Pty Ltd v Ridolfi [2001] QSC 455; [2000] QCA 292; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Transport Accident Commission v Florrimell [2013] VSCA 247; Transport Accident Commission v Treloar [1992] 1 VR 447.

Judgment:Leave granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Pilipasidis SC with Mr D O’Brien	Arnold, Thomas & Becker
For the Victorian WorkCover Authority	Ms S Manova	IDP Lawyers
For the Transport Accident Commission	Mr S Smith KC with Mr S Pinkstone	Solicitor for the Transport Accident Commission

HER HONOUR:

Preliminary
1There are two applications for leave to bring proceedings for damages before the Court.
2By the first Originating Motion CI-22-04122, dated 3 October 2022, the plaintiff seeks leave pursuant to Section 335 of Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRC Act”), to bring proceedings for damages for injuries sustained by him in the course of his employment with Peninsula Transit Pty Ltd (“the employer”) throughout the course of his employment and on 22 June 2016.
3By the second amended Originating Motion CI-22-04968, dated 26 May 2023[1], the plaintiff seeks leave pursuant to Section 93 of the Transport Accident Act 1986 (“TA Act”) to bring proceedings for damages for injury suffered by him in a transport accident on 22 June 2016 (“the accident”).
[1]By the first Originating Motion CI 2204968 dated 18 November 2022, leave was sought pursuant to Section 93(4)(d) of the TA Act to institute proceedings for damages in respect of injuries sustained during the course of employment.
4Both applications were brought pursuant to ss (a), the relevant body function being the spine. There were also a range of other injuries detailed in the Particulars of Injury which were not pursued.
5The plaintiff seeks leave in relation to both pain and suffering and loss of earning capacity in the WIRC Act application.
6The plaintiff swore two affidavits, the first in relation to his WIRC Act application on 3 May 2022 and his second on 14 November 2023 in his TA Act application. He was cross examined at length by defendant counsel who were both given leave to further cross examine. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
7During the hearing of these two applications, a number of preliminary issues arose for determination.
8In the TA Act proceeding, the Transport Accident Commission (“TAC”) withdrew its admission that the circumstances of an incident on 22 June 2016 constituted a transport accident and argued it did not. Having granted leave to withdraw the admission, I found the incident was a transport accident. Having then heard the application for leave pursuant to Section 93 of the TA Act, leave was granted to bring proceedings for damages in relation to the transport accident of 22 June 2016.
9In the WIRC Act proceeding which involved injury throughout the course of employment, I accepted the submission by counsel for the VWA that the decision of the Court of Appeal in Metro Trains Mebourne Pty Ltd v Graeme Allan Keay[2] excluded from that application consideration of any incidents that were a transport accident.
[2][2023] VSCA 223 (“Keay”).

Preliminary issues
(i) The withdrawal of an admission
10By letter dated 2 December 2022, the TAC advised the plaintiff’s solicitors that it accepted the incident involving driving over a speed hump on 22 June 2016, as described in his affidavit, constituted a transport accident in accordance with the TA Act (“the admission”).
11During cross examination of the plaintiff, counsel for the TAC indicated he was instructed to seek to withdraw the admission that the June 2016 incident constituted a transport accident and place that issue in contest in the determination of the Section 93 application.[3]
[3]Transcript “T” 43
12Counsel for both the plaintiff and the Victorian WorkCover Authority (the “VWA”) opposed this application. Accordingly, a ruling is required as to whether the TAC should be given leave to withdraw the admission.
13The Court has the discretion to grant leave to withdraw admissions. Relevant factors in forming the Court’s exercise of discretion include whether the admission was made after deliberate consideration and full opportunity to consider whether the admission should be made; the strength of the case now advanced; that the admission may or may well be incorrect; delay in making the application to withdraw the admission; the significance of the admission to the respective cases of the party; prejudice to the applicant if the admission is not withdrawn and to the respondent if it is, and the interests of justice.[4]
[4]Asic v Comcare (2020) FCAFC 105; BC202005250 at 83
14Rule 35.02 provides that a party may, by leave of the Court, withdraw an admission made voluntarily. This Rule applies to a Notice to Admit but the cases in relation thereto give some guidance as to the matters to be taken into account in this application where leave had been sought to withdraw the admission in the TAC’s correspondence.
15There are two conditions to be satisfied before the Court will grant leave to withdraw an admission. Firstly, there should be an explanation for both how and why the admission came to be made. Secondly, detailed particulars should be given as to the issue or issues that would be raised at trial if the admission were to be withdrawn.[5]
[5]Cox v Cox [2013] VSC 318
16Parties seeking leave to withdraw an admission should explain how and why the admission came to be made, and identify the question or questions which the party would raise at trial if the admission were withdrawn.[6]
[6]Rigato Farms Pty Ltd v Ridolfi [2001] QSC 455; [2000] QCA 292.
17Counsel for the TAC submitted if it was not established the incident on 22 June 2016 was a transport accident, there would be no necessity for the plaintiff to seek a serious injury certificate.[7]
[7]T44
18Reliance was placed on the decision of the Court of Appeal in Belgrave Heights Christian School v Moore[8] where the court held that a number of incidents where the plaintiff experienced jolts and strains to her body because of the setup; and the nature of the seat which she was required to operate in the course of her employment, did not constitute a transport accident.[9]
[8][2020] VSCA 240
[9]T48
19I will deal with this issue later.
20Counsel for the TAC gave his client advice on the first day of trial, and in accordance with that advice, he was instructed to seek withdrawal of the admission so the issue of whether the 22 June 2016 incident was a “transport accident” point could be agitated. Counsel indicated he had advised the TAC that it was at least arguable that the incident of 22 June 2016 was not a transport accident.[10]
[10]T185
21While counsel for the TAC conceded he had not been able to find relevant authority in relation to a withdrawal of admission of this type, it was submitted that the principal consideration is, first, that it is a matter of significant importance, which it was in this case. It was not some marginal or peripheral point. It was critical, and of central importance to the application.
22It was also submitted that there was no breach of the model litigant rules when the TAC acted on advice from counsel.[11]
[11]T152
23Counsel for the VWA indicated it was the Authority’s position and that of the plaintiff, that leave should not be given to withdraw the admission, although there was no prejudice claimed.[12] However, it was submitted the absence of prejudice does not mean the TAC ought to be granted leave. Other matters ought to be balanced. The Court will usually require an explanation for the change in position before granting leave.[13]
[12]T202
[13]T203
24It was submitted that the advice of counsel ought to be rejected as a valid reason for withdrawing the admission because it would create, or have the potential to create, a situation where a statutory authority such as the TAC could make an important determination on a claimant’s claim and then arbitrarily withdraw it because of counsel’s advice. That would not be a position that would engender public confidence in the VWA, the TAC, or the legal system.[14]
[14]T203
25It was conceded the issue of whether the 22 June 2016 incident is a transport accident is clearly in dispute, but it is not a situation where there has been new evidence that would bring into question whether the incident really was a transport accident.[15]
[15]T203
26It was submitted it was not in the interests of justice for the Court to permit the TAC to withdraw the written admission made by its representative. Doing so would be akin to allowing an authorised insurer, say in a WorkCover case, to withdraw acceptance of liability for an impairment benefit after they had accepted it on counsel’s advice that no injury occurred at work.[16]
[16]T204
27It was conceded that the admission did not bind the TAC as an estoppel. The TAC was entitled to argue that the incident was not a transport accident, but the admission should stand as a piece of evidence in accordance with the authorities in Ansett v Taylor,[17] Sednaoui[18] and Florrimell,[19] and the Court ought to accord whatever weight is appropriate having regard to the fact that no explanation has been given as to a change in opinion, other than that counsel has provided advice.[20]
[17]Ansett Australia Ltd v Taylor [2006] VSCA 171
[18]Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66
[19]Transport Accident Commission v Florrimell [2013] VSCA 247
[20]T205
28Counsel for the plaintiff accepted and adopted the submissions made on behalf of the VWA.
29While the Court had discretion to withdraw the admission,[21] it was submitted there was actually specific prejudice to the plaintiff, and, while there was no objection to the Section 93 application proceeding, the plaintiff may have opted not to issue proceedings against the TAC if it had initially advised it did not accept this was a transport accident. The plaintiff has now incurred all the legal costs that flow from this admission and may have made a tactical decision to run the case in a different way.[22]
[21]T215
[22]T215
30Relevant authorities relied on by counsel for the plaintiff were the decision of Delaney J in Chan v Valmorbida (No 2) –
“It has been often said in the context of applications to withdraw admissions, that the explanation proffered should be based on evidence of a “solid and substantial character”. However, what is adequate will depend upon the circumstances of the particular case.”[23]

– and also the decision of Beach J in Divcon (Aust) Pty Ltd v Devine Shipping Pty Ltd:
“... As a matter of principle a party who has made an admission in a pleading should not be entitled to withdraw that admission without good cause, for example, that the admission was made in error by the party who prepared or gave the instructions for the preparation of the pleading, or as the consequence of a misapprehension by counsel or solicitor concerning the client’s instructions.”[24]
[23][2020] VSC 633 at 12
[24][1996] 2 VR 79 at 80

31In the absence of any affidavit to explain the TAC’s conduct in making the admission and then withdrawing it, it was submitted it was insufficient for counsel to inform the Court “It was based on my advice.” There should be evidence before the Court, not submissions.[25]
[25]T216
32There had been no change in the facts. There needed to be an explanation why the statutory authority, a professional litigant, at the first instance accepted the incident as being a transport accident, and suddenly withdrew that admission. The person who made the decision could then have been cross examined and explained the basis on which the decision was made. The plaintiff did not have that opportunity.[26]
[26]T216
33It was submitted the Court should not permit the TAC – given there has been no change in the facts, and the timing of the decision before the plaintiff had even finished his evidence completely – to then make a decision to withdraw the admission after the case had actually started.[27]
[27]T217
34It was submitted litigants should have the confidence that decisions made by statutory authorities, model litigants, when they come to court are the decisions that they are fighting with or accept or are relying on. There has got to be, on policy grounds, reasons why that should stand.[28]
[28]T217
35Counsel for the TAC replied that there was nothing arbitrary about receiving advice from senior counsel responsibly given and acting or providing instructions in accordance with that advice. That is not arbitrary, and cannot be described as anything like that. Seeking to draw analogies between Ansett v Taylor and a case of this nature is wholly misleading.[29] Where there is an admission, the admission can remain, and the TAC can still make submissions that this is not a transport accident.[30]
[29]T221
[30]T222
Findings
36Whether or not the incident of 22 June 2016 is a transport accident is central to the determination of the leave application under Section 93 of the TA Act.
37Satisfaction of the definition of “transport accident” under Section 3 is crucial before leave may be considered. Hence the subject of the admission is a matter of significant importance. It is not some marginal or peripheral point. It is critical, and of central importance to the application.
38In these circumstances, the TAC is entitled to rely on the advice of Senior Counsel, at an early part of the hearing, that it was arguable the 22 June 2016 incident was not a transport accident – although there had been no change in the evidence as to the incident circumstances at that time.
39Neither counsel for the plaintiff or for the VWA could point to any prejudice suffered by giving leave to withdraw the admission, save for the plaintiff in terms of potential costs.
40Further, as counsel for the VWA conceded, there is no estoppel in the circumstances.
41Accordingly, leave is granted to withdraw the admission.
(ii) Is the incident of 22 June 2016 a transport accident?
42Having granted leave to withdraw the admission, it is then necessary to consider whether the 22 June 2016 incident is a “transport accident.”
43Section 3(1) of the TA Act defines a ‘transport accident’ to mean:
“an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram.”
44Section 93(1) of the TA Act states:
“(1) A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section.”

45In Foursquare Construction Management Pty Ltd v Victorian WorkCover Authority,[31] the Court of Appeal considered the meaning of Section 3 of the TA Act and whether the plaintiff’s injuries arose out of a transport accident.
[31](2022) 68 VR 415 (‘Foursquare’)
46The court held that the primary consideration was the wording of the statute, which required the accident be directly caused by the driving of a motor vehicle.
47The court referred to the leading authority on the meaning of the scope of this definition and similar expressions as said by the High Court in Insurance Commission of Western Australia v Container Handlers Pty Ltd.[32] In that case, McHugh J held that “directly caused by the driving” requires a causal link between the injury and some feature of the driving.[33]
[32](2004) 218 CLR 89
[33]At 64
48In the present case, there was no issue about what happened on 22 June 2016. While driving a bus at work, the plaintiff drove over a speedhump and there was some bottoming out of his seat causing sudden onset of low back pain. However, it was submitted on behalf of the TAC these circumstances did not constitute a transport accident, relying on the decisions of Belgrave Heights Christian School v Moore[34] and Keay.
[34] [2020] VSCA 240 (‘Belgrave Heights’)
49Belgrave Heights involved a case brought by a bus driver (Ms Moore) against her employer for a back injury she alleged she sustained during the course of her employment as a result of being required to drive a faulty bus with manual transmission and difficult brakes.
50Ms Moore claimed that while driving the bus she was often jerked backward and forward in her seat; she did not have an appropriate seatbelt; her seat was poorly positioned in relation to the steering wheel; she did not have a headrest and the bus was ‘generally non-ergonomic.’

51On 13 August 2012, (“the August 2012 incident”) whilst driving a different bus, Ms Moore claimed she suffered an acute injury to her lower back when she simultaneously applied the brake and clutch.
52Having been granted leave to bring proceedings under Section 93 of the TA Act in relation to the August 2012 incident, Ms Moore issued a Writ in respect of injuries she alleged she sustained over the course of her employment, claiming injury by a gradual process during the whole period of her employment, including 13 August 2012 as a result of driving the bus.
53The defendant filed a defence pleading the plaintiff was not entitled to bring a proceeding in respect of her work duties over the course of her employment as she had not obtained leave under Section 134AB of the Accident Compensation Act (“AC Act”). The defendant appealed after a County Court judge struck out this pleading.
54The findings of the Court of Appeal were set out at paragraph 77:
“To that end, we note that the predicament the plaintiff currently finds herself in has been, at least in part, contributed to by the advices to her from, and approaches taken by or on behalf of, the TAC and the VWA. In particular, it is clear that the injury sustained by the plaintiff, as pleaded in her statement of claim, and as described in her affidavit, was due to the recurrent strains to which her back was subjected when driving the Hino bus over a number of years in the course of her employment with the defendant. That injury arose out of or was due to the nature of her employment with the defendant. It is not the result of any transport accident. In those circumstances, VWA’s solicitors were incorrect to assert that the injury, complained of by the plaintiff, was the result of a transport accident. Similarly, it is difficult to understand on what basis the TAC issued the certificate to the plaintiff in respect injury ‘as a result of a transport accident which occurred on 13 August 2012’. It is clear that whatever strains were imposed the plaintiff’s lower back on that one day, they were very much the ‘last straw’. It is difficult to see how the issue of the certificate by the TAC can be reconciled with the principles stated in cases such as Petkovski. In those circumstances, it would be hoped that if the plaintiff sought to reinstate the serious injury application, that she served on the defendant and the VWA, there would be no opposition to that course, and that the VWA, as a model litigant, would give appropriate weight to the assessment already made by TAC that the injury sustained by the plaintiff is a serious injury.”
55Counsel for the TAC relied on paragraph 77 and also paragraph [41] of Keay:
“Next, Belgrave Heights does not provide support for the proposition that an injured worker who suffers a psychiatric injury as a result of multiple transport accidents, that occurred in the course of that worker’s employment, is entitled to make a serious injury application under s 335(2)(d) of the WIRC Act. The basis upon which the plaintiff in Belgrave Heights was permitted (indeed required) to make an application under s 134AB(16)(b) of the AC Act was that none of the episodes of jolting and jerking which contributed to her back injury could be described as an ‘incident’ as that word is used in the definition of the expression ‘transport accident’ in the TA Act — and thus the back injury suffered by the plaintiff in that case was not an ‘injury … as a result of a transport accident’. If the episodes of jerking and jolting alleged by the plaintiff in Belgrave Heights had constituted transport accidents within the meaning of the TA Act, then, like the plaintiff in the present case, the plaintiff in Belgrave Heights would have been required to make separate serious injury applications under s 93(4)(d) of the TA Act.”
56Similar to Belgrave Heights, counsel for the TAC submitted that the plaintiff in the present case suffered injury over the course of his employment over separate incidents and as a result of the defective driver’s seat. What happened on 22 June 2016 was simply another episode arising from the defective driver’s seat in the course of his employment, and not as a result of any transport accident.
57Further, counsel submitted that the plaintiff’s injury does not arise as a result of driving the bus but rather as a result of being provided with defective equipment by his employer. It was suggested that there was nothing defective about a bus driving 26 kilometres an hour over a speed bump.
58It was submitted the basis upon which the plaintiff in Belgrave Heights was required to make an application under s134AB was that none of the episodes of jolting and jerking which contributed to a back injury would be described as an incident, as that word is used in the definition of transport accident in the Act.[35]
[35]T187
59The plaintiff’s complaint in the present case is not that he had to drive over a speedhump, but that the seat he was using at the time he was required to do so was defective and bottomed out. That was an important principle in terms of identifying where on the line, or which side the line, this incident sat. It was submitted it was at the heart a complaint about having been provided with defective equipment by his employer. It is not a complaint about the driving of the vehicle, and there is nothing about his management or control of the vehicle which is said to be conducive or causative of the incident. It was submitted that put this application on all fours with the nature of the complaints that the plaintiff made in Belgrave Heights.[36] It is not an incident, so as not to be a transport accident within the meaning of the legislation.[37]
[36]T200
[37]T188
60Counsel for VWA submitted the only finding open to the Court was that the incident on 22 June was a transport accident.[38]
[38]T205
61There was a sudden jolt to the spine after the plaintiff drove over the speedhump. Noting the definition of transport accident in Section 3 of the TA Act, it was submitted Belgrave Heights actually assisted the VWA and the plaintiff.
62In Belgrave Heights, the court held that an examination of the whole of the TA Act showed that a transport accident is an incident that occurs upon a particular date and in circumstances that might be fairly described as an “incident”, as that word is used in its common and ordinary meaning.[39]
[39]At 54
63It was submitted this was analogous to an incident on a particular date, which was clearly the situation in the current case.[40]
[40]T206
64Counsel also relied on Porter v Bonojero in which Eames J categorised the use of the work “incident” in Section 3 of the TA Act as identifying a discernible event.[41] His Honour went further at paragraphs 132 and 233 to state that:
“… ‘an incident’ is not intended to embrace myriad events of jolts and jarring … .”
[41][2000] VSC 265 at 128
65It was submitted that, in the present case, there is an identified sudden event when the plaintiff went over a speedbump, that it went “bang”, his back crunched and he yelled an expletive, et cetera.[42]
[42]T209
66The approach taken by the courts over a long period of time has been a transport accident is one where there is a discrete event.[43]
[43]T209
67What the plaintiff did not say in Belgrave Heights was that, on any specific date in the relevant period, she was involved in any incidents, of course, aside from the one in August 2012 which the TAC accepted to be a transport accident.
68It was submitted the difference with Belgrave Heights is that the plaintiff was alleging injury in the course of employment, which the Court of Appeal said should have been brought under the Accident Compensation Act (“AC Act”).
69The Court of Appeal did not at any stage say it was wrong or incorrect, the separate incident in a different bus on 13 August 2012 was anything but a transport accident.[44] The Court held that the plaintiff’s claim against the defendant was essentially a gradual process injury claim.[45]
[44]T210
[45]At 47; T211
70In the present case, the plaintiff clearly made the point that there was a sudden onset of pain and it was identifiable.[46] In short, the jolting and jerking point did not help the TAC’s argument because in this case, the 22 June 2016 incident is a discrete one.[47]
[46]T212
[47]T214
71Counsel for the plaintiff adopted the submissions on behalf of the VWA.[48]
[48]T215
72It was submitted the 22 June 2016 is an incident directly caused by the driving of a motor vehicle thus satisfying the definition of transport set out in Transport Accident Commission v Treloar,[49] Koutroulis v Transport Accident Commission (TAC)[50] and Corolovski v Victorian WorkCover Authority.[51]
[49][1992] 1 VR 447
[50][2011] VSC 159
[51][2021] VCC 565
73Belgrave Heights had not changed the law. Each case has to be determined on its own facts.
74The Court of Appeal in Belgrave Heights, and earlier on, had stated there had to be an “incident” as opposed to a series of strains. In the present case, “there is no disconnect between the driving the bus, going over the speedhump and the plaintiff being jolted forcefully or bottoming out, the seat bottoming out, because of that connection to the driving.”[52]
[52]T220
75Counsel for the VWA and for the plaintiff both disagreed with the interpretation of Belgrave Heights argued by counsel for the TAC.
76Both counsel submitted that the Court of Appeal did not specifically determine that the incident on 13 August 2012 was not a transport accident. Instead, the Court of Appeal was required to determine whether the previous incidents of constant jostling and jerking of the driver’s seat that Ms Moore alleged occurred on a daily basis constituted a transport accident.
77The Court of Appeal held that the issues Ms Moore was facing on a daily basis in relation to the defective seat could not constitute a transport accident. The court did not determine that the 13 August 2012 incident was not a transport accident.
78In reply, counsel for the TAC repeated his argument that the real source of injury in the present application is not said to be driving over a speedhump, it is said to be because the seat is defective and bottoming out. So properly characterised, it is not a question of arising directly out of the driving, it is arising directly out of the defective equipment which the plaintiff has been provided to do the job.[53]
[53]T225
79Taking into account the facts of this case, the legislation and the authorities, I am satisfied the 22 June 2016 incident is a transport accident as defined by Section (3)(1) of the TA Act.
80It was not in dispute that while driving a bus at work, the plaintiff drove over a speedhump and there was some bottoming out of his seat causing the sudden onset of lower back pain.
81On these agreed facts, there was the necessary immediate direct proximate connection between the driving of the bus and the incident in which the plaintiff suffered injury.[54]
[54]Foursquare
82Further, I reject the interpretation of the decision in Belgrave Heights and in particular paragraph 77 urged by counsel for the TAC.
83While in Belgrave Heights the court found a number of unspecified events to be in the course of employment related to defective equipment, etc, and more properly be brought in a gradual process application under the AC Act, it was not saying a specific event could not be a transport accident – in fact, it did not criticise the August 2012 incident being treated as such. Like the 22 June 2016 incident in this case, there was no issue that the August 2012 incident was a transport accident.
84In my view, in paragraph 77 of Belgrave Heights, the Court of Appeal was not being critical of, nor deciding there was not a transport accident in August 2012. It was critical of the TAC in granting leave to bring proceedings for damages in relation to a transport accident which was clearly at the end of a number of events, and was the last straw, therefore offending the principles in Petkovski v Galletti.[55]
[55][1994] 1 VR 436 (‘Petkovski’)
85I did not consider the Court of Appeal was critical of the TAC, or that it was wrong giving a certificate because it was not a transport accident.[56]
[56]T193
86What the Court of Appeal in that paragraph was acknowledging was that there were a number of strains over the years due to the nature of the plaintiff’s employment which were not the result of a specific incident so as to be a transport accident pursuant to the TA Act.
87As counsel for the VWA submitted, Belgrave Heights actually assists the argument that the 22 June 2016 incident is a transport accident. It is an incident that occurs upon a particular date and in circumstances that might be fairly described as an “incident,” as that word is used in its common and ordinary meaning.[57]
[57]At 54
(iii) What incidents can be included in the course of employment application?
88My ruling that the June 2016 incident is a transport accident is also relevant for the purposes of the third preliminary issue: namely, what work incidents can be taken into account when considering the course of employment application under the WIRC Act.
89This issue arose after counsel for the VWA submitted any events which are transport accidents must be excluded from the plaintiff’s gradual process application under the WIRC Act.[58]
[58]Keay at 37
90The plaintiff was employed by the employer from 2 April 2012 to 21 October 2016 (“the period of employment”).
91By the first Originating Motion CI-22-04122, dated 3 October 2022, the plaintiff seeks leave pursuant to Section 335 of the WIRC Act to bring proceedings for damages for injuries sustained by him in the course of his employment with Peninsula Transit Pty Ltd (“the employer”) throughout the course of his employment and on 22 June 2016.
92The plaintiff’s affidavit evidence in relation to the course of employment/gradual process application was brief referring to:
·        an attendance on his gp on 29 January 2016 with pain in his upper back and right shoulder, which he believed was due to a faulty seat in the bus he was driving at work;
·        continuing to work, but on 8 April 2016, he was driving a bus over a speed hump when the backrest on the seat gave way;
·        suffering back pain from the April incident which became worse on 22 June when, again, while driving over a speed hump, the seat gave way beneath him; and
·        suffering a worsening in back pain while at work on 4 October 2016.
93It became apparent during lengthy cross examination there were a number of other documented incidents at work where the plaintiff suffered injury to his back, namely 18 December 2013, 28 January 2016, 4 February 2016, and during October 2016.
94Further, when cross examined by counsel for the TAC, the plaintiff agreed that the April and June 2016 incidents were just two incidences in what were probably hundreds that happened over the course of four to five years that he was driving buses.[59] However, later in cross examination, he denied this was the case, ultimately focussing on the 22 June 2016 incident as the main injury.
[59]T79, T85, T115
95Counsel for the VWA submitted that the number of incidents during the period of employment which may be taken into account in this application was limited. None of the incidents which could be characterised as a transport accident could be taken into account by the plaintiff in his course of employment/gradual process application.[60]
[60]Keay
96Counsel for the plaintiff did not address this issue in any detail.[61]
[61]T297
97In Keay, the plaintiff train driver had been in that role for thirty-five years, until ceasing work in 2015 because of an incident at work on 17 November 2014.
98There were a number of incidents at work pre-November 2014 involving fatalities in late 1992 and 1993, and other occasions where there were near misses, following which the plaintiff had to take time off work because of stress and depression.
99There was another incident in early 2009, when a truck blocked the tracks, and the plaintiff thought there would be a collision, but no one was injured. The plaintiff had had other situations like this but had always been able to get back to work. There were two other near misses in 2013 and early 2014.
100On 17 November 2014, the plaintiff was approaching a level crossing when he saw a mother and two children in a car frantically trying to move the car from the level crossing. He was able to stop the train before he hit the car, but only just. He was extremely upset by that incident and had not worked since.
101The plaintiff’s case was he certainly did not suffer from any psychiatric injury symptoms prior to the November 2014 accident and described the difference thereafter as “stark.” He never got over that accident and he could never stop thinking about it.
102Leave was granted under Section 93 in relation to that accident and no complaint was made about the making of that order.
103It was the making of the Order granting the plaintiff leave pursuant to s134AB of the AC Act to issue a proceeding claiming common law damages in respect of the psychological injury suffered by him during the course of his employment with the defendant which was the subject of challenge by the defendant in the Court of Appeal.
104The defendant sought leave to appeal on the basis the judge erred as each of the incidents relied upon by the plaintiff as giving rise to a psychiatric injury was a transport accident under the TA Act.
105The parties agreed the course of employment application should have been made under s335(2)(d) of the WIRC Act because the plaintiff’s case was he sustained injury arising out of, or in the course of, or due to the nature of, his employment both before and after 1 July 2014.
106In Keay, the plaintiff’s entitlement to claim common law damages in respect of his claimed psychiatric injury was governed by the provisions of Division 2 Part 7, containing ss324 to 356F of the WIRC Act.
107Section 326 states:
“A worker who is, or the dependants of a worker who are, or may be, entitled to compensation in respect of an injury arising out of, or in the course of, or due to the nature of, employment must not, in proceedings in respect of the injury, recover any damages for pecuniary or non-pecuniary loss except—
(a) if the injury arises from a transport accident—
(i) in accordance with the Transport Accident Act 1986 and sections 343 and 347(1) of this Act; or
(ii) …

(b) …
(c) as permitted by and in accordance with this Division, Division 3 or section 366.”

108Therefore, the Court of Appeal held if the injury arises out of the course of employment, the worker must not issue proceedings in respect to that injury or recover any damages for pecuniary or non-pecuniary loss, except if the injury arises from a transport accident in accordance with the TA Act and s343 and s347(1) of this Act.
109Further, the Court of Appeal held the terms of Section 93 of the TA Act are “unyielding”. It does not permit a person to aggregate injuries over multiple transport accidents or to make a claim for a “gradual process injury” caused by multiple transport accidents – notwithstanding the undoubted ability of the worker to make a serious injury application in respect of a gradual process injury which did not result from any transport accident pursuant to either s134AB(16)(b) of the AC Act or s345(2)(d) of the WIRC Act.”[62]

[62]Keay at 37
110As the Court stated in Keay:
“Section 37(c) of the Interpretation of Legislation Act 1984 provides that, in an Act or subordinate instrument, unless the contrary intention appears, ‘words in the singular include the plural’. The reference to ‘a transport accident’ in s 326(a) of the WIRC Act therefore includes a reference to multiple transport accidents, unless the contrary intention appears. Construing s 326(a) in its context, and having regard to the legislative purpose of s 326 as a whole, we are unable to discern any contrary intention. Indeed, it appears plain that, consistently with predecessor provisions to s 326, the legislature has determined that work-related injuries resulting from transport accidents are be dealt with in the same way that non-work-related injuries resulting from transport accidents are dealt with — namely, by reference to the provisions of the TA Act.
Next, Belgrave Heights does not provide support for the proposition that an injured worker who suffers a psychiatric injury as a result of multiple transport accidents, that occurred in the course of that worker’s employment, is entitled to make a serious injury application under s 335(2)(d) of the WIRC Act. The basis upon which the plaintiff in Belgrave Heights was permitted (indeed required) to make an application under s 134AB(16)(b) of the AC Act was that none of the episodes of jolting and jerking which contributed to her back injury could be described as an ‘incident’ as that word is used in the definition of the expression ‘transport accident’ in the TA Act — and thus the back injury suffered by the plaintiff in that case was not an ‘injury … as a result of a transport accident’ If the episodes of jerking and jolting alleged by the plaintiff in Belgrave Heights had constituted transport accidents within the meaning of the TA Act, then, like the plaintiff in the present case, the plaintiff in Belgrave Heights would have been required to make separate serious injury applications under s 93(4)(d) of the TA Act.
…

In summary, once it was accepted that each fatality and near miss incident was a transport accident within the meaning of the TA Act, then the clear terms of s 326 of the WIRC Act meant that s 93 of the TA Act (for better or worse) governed the plaintiff’s ability to bring a common law claim in respect of those incidents. The serious injury provisions of the WIRC Act, again by the terms of the statute, were irrelevant.”[63]
(Footnotes omitted.)
[63]At 40-41 and 43

111In my view, the named incidents on specific dates, which include –
·        18 December 2013: going through a roundabout near Vic Roads when he felt something in his lower back and left side;
·        28 January 2016: inability to properly adjust driver’s seat due to a mechanical fault adjust – but describes it in his affidavit driving bus with a faulty seat;
·        4 February 2016: dropping speed and hit a bump on the road and bottomed out with driver’s seat and jarred lower back.
– are properly described as transport accidents directly caused by the driving of a motor vehicle.
112For the reasons I have found 22 June 2016 incident to be a transport accident, the incident on 8 April 2016, which is also a similar incident, is a transport accident, and therefore cannot be included in the course of employment application under the WIRC Act.
113As Eames J said in Porter, the intention of the legislature by use of the word “incident” is to identify a discernible event which may be the subject of scrutiny as to whether it arose directly out of the driving of a motor vehicle.[64]
[64]At 128
114In my view, unlike the earlier driving incidents which are transport accidents, the minor issues driving the manual bus in October 2016 were not intended by the legislation to be transport accidents.
115Once it is established that an incident was a transport accident within the meaning of the TA Act, then the clear terms of s 326 of the WIRC Act governed the plaintiff’s ability to bring a common law claim in respect of those incidents. The serious injury provisions of the WIRC Act, again by the terms of the statute, were irrelevant.[65]
[65]Keay at 43
116In all the circumstances, the plaintiff is precluded from including, in his course of employment application under the WIRC Act, any of the incidents which are transport accidents (April and June 2016 being the most significant).
117It would be very difficult for the plaintiff, in these circumstances, to establish “serious injury” on the basis of minor day to day events, with more significant transport accidents excluded.

Section 93 application
118Section 93(6) of the TA Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
119The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a) – “a serious long term impairment or loss of a body function”. The relevant body function is the spine.
120The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
121The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.
122In forming a judgment as to whether the consequences of an injury are “serious,” the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than significant or marked?”[66]
[66] See Humphries and Anor v Poljak [1992] 2 VR 129 at 140-141
123Section 93 of the TA Act requires, and the Court of Appeal has made it plain in Petkovski, R J Gilbertsons Pty Ltd v Skorsis,[67] AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[68] and De Agostino v Leatch & Transport Accident Commission,[69] a judge hearing an application under s93(4)(d) of the TA Act must identify an injury that occurred as a result of the transport accident in question and then to determine whether that injury is serious in the defined sense.[70]
[67](2000) 12 VR 386
[68](2012) 34 VR 309
[69][2011] VSCA 249
[70] Rowe v Transport Accident Commission [2017] VSCA 377 at 82-84; T7

The Plaintiff’s evidence
The WIRC Act affidavit
124The plaintiff is presently aged fifty-three, having been born in October 1970. Having left school in Year 11, he worked in a range of casual jobs requiring no formal qualifications.
125He started work with the employer as a bus driver on 12 April 2012, with most of the buses he drove being automatic and having air-suspended seats.
126On 29 January 2016, he consulted his local general practitioner (“gp”), Dr Bradley Hull, with pain in his upper back and right shoulder, which he believed was due to a faulty seat in the bus he was driving at work.
127He continued to work, however, but on 8 April 2016, he was driving a bus over a speed hump when the backrest on the seat gave way. He suffered back pain in that incident, which became worse on 22 June when, again, while driving over a speed hump, the seat gave way beneath him.
128After the 22 June 2016 incident, he completed the trip, but returned to the depot and reported the incident. He applied an icepack to his lower back. He was asked to complete his shift using the same bus, but refused, and was provided with a different bus. He finished his shift that day and returned to work the following day but was again allocated the incident bus and found that the seat again gave way beneath him.
129On 27 June 2016, the plaintiff saw Dr Rugara because of lower back pain and was referred for a CT scan, which he had that day, and believed it revealed a disc bulge at L4-5 and lower facet degenerative changes. He was prescribed Mobic initially, but due to ongoing pain, on 16 August that year, Dr Rugara prescribed Lyrica. On 31 August 2016, he was prescribed Panadeine Forte, Voltaren, Mobic and Lyrica. He also borrowed Endone from his mother, as he was finding that the prescription medication was not helping to any great degree.
130While at work on 4 October 2016, he suffered a worsening in back pain. He was prescribed Diazepam and referred for an epidural, which was carried out later that month. He was also prescribed Tramadol in October 2016.
131On 13 September 2017, he consulted a chiropractor at Hastings, complaining of constant back pain and also right leg pain and, later, left leg pain. He had a CT-guided lumbar spine injection on 25 September 2017.
132On 23 July 2018, he had another CT-guided epidural injection. Later that month, he first saw a physiotherapist at Beach Street Spinal and Pilates. On 31 October that year, he consulted physiotherapists, Back on Track Physiotherapy.
133His gp, Dr Rugara, referred him to Dr Neels du Toit, a pain specialist, whom the plaintiff first saw on about 8 August 2018 and recommended a pain management program.
134On 30 April 2019, after the plaintiff went back to Dr du Toit with ongoing back pain, he was prescribed Palexia and medial branch blocks at L3-4 levels were recommended.
135At that time, the plaintiff was struggling with any bending, standing or walking, and finding it hard to sit for more than ten minutes at a time without severe pain. He eventually underwent the medial branch blocks on 9 August 2019.
136Despite that procedure, he still continued to suffer back pain and pain down his legs. He returned to Dr du Toit, who recommended he undergo a trial of spinal cord stimulator implant. He was then taking Lyrica, Mobic and Tramadol, however this was not helping alleviate his pain to any great degree.
137On 6 January 2021, he had the right L4 and L5 epidural injections. However, later that month he returned to Dr du Toit with worsening pain.
138On 21 April 2021, he had a trial of the spinal cord stimulator and, in the meantime, had consulted Dr Michael Best at the Metro Pain Group and had commenced taking medicinal cannabis to treat his pain levels.
139On 2 May 2021, the stimulation lead was removed, and Dr du Toit also performed a transforaminal epidural injection. On 17 August 2021, the plaintiff had a permanent spinal cord stimulator implanted.
140On about 20 March 2022, he moved to Tasmania, for the most part to start a new life in light of his constant feelings of frustration, anger, worthlessness and hopelessness, as a result of his injury.
141As at May 2022, he found that, since having the implant, he managed to reduce his pain medication and then only took Panadol Osteo and Voltaren. However, he still suffered constant lower back pain radiating into both legs and also suffered numbness in his left leg down to his big toe. Two or three times a week, he suffered extremely painful cramps in his legs and feet.
142His sleep was significantly affected by pain levels, and he tended to only get two or three hours or so of disrupted sleep at best and was completely exhausted and fatigued.
143He had to change his posture regularly due to back and leg pain and was only able to sit or stand for twenty minutes or so without getting pain.
144He found simple activities, such as dressing himself, difficult and relied his partner’s help to put on his shoes and socks. He even found sitting on the toilet difficult.
145He used to do his fair share of cooking, washing and cleaning, but now relied on his partner for all this.
146He used to drive a small Kia Rio but had to purchase a large four-wheel drive now to manage the amount of bending and try to relieve the pain while getting in and out of the car and while driving. He rarely drove, however, due to constant fatigue as a result of his pain.
147Outside of his work, he used to enjoy taking the dogs for a walk and going on bike rides. He still owned a pushbike and occasionally tried to ride it, but still had significant pain when he did. He still tried to walk the dogs but was not able to walk them every day. He was only able to walk about 100 metres or so before suffering increased pain in his back, and he walked with a limp.
148He was very frustrated because of his injury and found he was much more irritable than he used to be. He thought his relationship with his partner had suffered as a result and his sex drive was affected, and they argued much more than they used to.
149He returned to work after about a week’s absence following the incident, working four hours a day on the school bus run. He ultimately ceased work, however, on about 21 October 2016, and his employment was terminated in the middle of the following year.
150He had tried to return to work delivering concrete and gardening mulch between 2019 and 2021 on a casual basis, however that work was very inconsistent. He was then working with Coles delivering groceries on a casual basis. His hours varied and he tended to earn between $175 and $1,278 gross per week. However, he struggled to work more than a couple of hours a day due to his injuries.
The TA Act affidavit
151In his 14 November 2023 affidavit, the plaintiff confirmed the accuracy of his earlier affidavit. His May 2022 affidavit described how he believed he injured his spine at work.[71]
[71]T31
152He had suffered chronic headaches for many years until diagnosed with an unruptured middle cerebral artery aneurysm in 2013, from which he made a reasonable recovery. He had also required regular testosterone injections for many years, but that did not affect his activities of daily living.
153He had discussed experiencing lower back pain with his gp on 23 July 2012, after falling at home. He again fell on 23 December the following year. Although he could not recall the circumstances of this discussion, he made a reasonable recovery from this condition and was able to continue working and engaging in daily activities.
154He experienced left knee pain on occasion, which he discussed with doctors, but he was able to manage that condition for many years.
155He developed an injury to his right and left forearms and elbows around 2010. He submitted a worker’s compensation claim and had injections. He had made a reasonable recovery from this condition, although he continued to experience symptoms on occasion.
156He had abstained from alcohol since 2012, as he had drunk excessively in the past, collapsing in October 2011.
157He suffered a whiplash injury to his neck as a result of a transport accident on 30 September 2010, but he made a good recovery.
158His back pain and restrictions, earlier deposed to, continued.
159The intensity of his lower back, buttocks and leg pain fluctuates, but is always present. He experiences referred pain and cramping in his right buttock and thigh. The intensity of that pain and cramps is difficult to predict. He continues to experience referred pain from his lower back into his legs, and numbness into his left leg.
160This pain and restriction continues to affect prolonged postures and gives him difficulty sleeping.
161He continues to experience limited benefits from the stimulator. It has increased his ability to engage in his rehabilitation actively, although he is frustrated by his lack of continued improvement.
162He is worried about the limited lifespan of the implant to six, possibly seven, years and that he is going to have to have ongoing reviews.
163He continues to require a significant amount of pain medication to be able to cope with ongoing symptoms. While he deposed he relied on Norspan patches, he had not used them for twelve months. He takes 50 milligrams of Voltaren every day and Panadol towards the end of most days. Marijuana has been prescribed, but he cannot afford it, and smokes a joint three to four times a day.
164He experiences side effects, such as nausea and constipation, as a result of his long term reliance on medication. He has taken Nexium for many years since the removal of his gallbladder, however that does help him cope with the side effects, he experiences due to prolonged reliance on strong prescription pain medication, such as the nausea.
165He has had limited temporary relief after hydrotherapy exercises in Launceston, but he is unable to regularly participate in that treatment, as he struggles in a car for a long time and cannot afford the petrol and cost of the aquatic centre.
166His ongoing back pain and restrictions and associated referred pain sustained during the course of his employment prevent him from being able to return to work. He and his husband rely on Centrelink. He is currently receiving Newstart allowance and has applied for a Disability Support Pension.[72]
[72]Dr du Toit supported this application in his report dated 29 April 2022
167His attempts to return to work failed. The ongoing pain and restrictions that he continues to experience in his lower back continue to prevent him from being able to do grocery deliveries for Coles and IGA. He was not able to lift the groceries without experiencing pain, especially when loading the delivery trolley.
168He often struggled to navigate driveways while delivering groceries, especially when there were steps involved. He worked slowly compared to his colleagues and could not complete the expected number of deliveries. He was unreliable, as he constantly required days off to recover. He attempted to change from Coles to IGA, however, encountered the same difficulties.
169He tried to work at a bar at a local hotel but could not cope. He could not stand or bend, and struggled to complete any of the heavier tasks, such as changing over a beer keg and the amount of cleaning.
170He is not sure what work he would be able to do in the future. He could not return to driving heavy vehicles, such as buses, due to his reliance on medication and inability to sit for long. He would be unable to tolerate the seat vibrations. He had never worked in an office and his education is limited.
171He is unable to engage in any work that would require him to push, pull, left, bend, sit or stand for long periods. He is pre-occupied by the ongoing pain and lower back restrictions and finds it difficult to concentrate or learn new tasks. He is easily irritated and struggles to interact with others.
172His inability to work has been devastating for him and his husband. They live in poverty. His husband required an operation that they could not afford, and they rely on the public system. He is worried how they will continue to survive together financially.
173His ongoing lower back pain and restrictions continue to impact on most aspects of life. He is constantly surprised by his restrictions and is unable to walk the dogs, and feels he is missing out when his husband does it without him.
174He relies on his husband to drive long distances, so he has lost his independence, especially as they live remotely.
175Ongoing lower back pain and restrictions prevent him from being able to ride his bike, as he is unable to bend forward to hold the handlebars. He is a model train enthusiast and had a particular passion for steam trains, but his ongoing pain and restrictions in his lower back have prevented him from being able to set up the train set, as he cannot sit or work in a bent position. That had been a significant loss, as it had been a major part of his life as long as he could remember.

Plaintiff’s earnings

INCOME

Year ending 30 June

Gross income from personal exertion

2012

$13,236

2013

$50,402

2014

$50,055

2015

Nil

2016

$74,680

2017

$29,523

2018

$29,231

2019

$23,684

2020

$2,297

2021

$23,051

2022

$12,493

2023

$2,409

Cross examination
176During cross examination, it became apparent the plaintiff suffered injury to his back in a number of other incidents at work from as early as December 2013.
177Counsel for the VWA sought leave to further cross examine the plaintiff after a number of these new incidents – beyond those deposed to by the plaintiff- arose in cross examination by counsel for the TAC.
178The nature of these incidents was relevant, as counsel for the VWA ultimately submitted the plaintiff is not entitled to include in his application for injury during the course of employment any incidents that are transport accidents in accordance with the TA Act.[73]
[73]Keay
179The plaintiff was employed from 2 April 2012 to 21 October 2016 (the period of employment).
180In the early months, he loved his job.[74] He made no mention to his gp of any issue with back pain driving the bus or the seats bottoming out. He would have told his doctor if that had been a problem.[75]
[74]T99
[75]T102
181While back pain was noted by his gp on 23 December 2013,[76] there was no detail of its cause. The plaintiff agreed if that had been caused by some sort of accident he would have mentioned it, because he would have wanted the doctor to know exactly what had happened and would mention it if it was suddenly caused by something he had done at work.[77]
[76]Referred to in the plaintiff’s second affidavit
[77]T103
18 December 2013
182An injury detail form was completed by the employer’s Suzanne Berry on 18 December 2013 at 10.44.
183Under the heading “Injury notes,” it was reported: “Driver states that he was turning off Overton Rd… and going through roundabout near Vic Roads when he felt something in his lower back, left hand side.[78]
[78]Incident/Injury Report and Investigation Form dated 18 December 2013 was in similar terms, including first aid and cold pack treatment
184Under the heading “Brief Conclusion,” it was reported: “Driver completed shift and apply cold pack as treatment. No further details provided regarding this injury.”
185The plaintiff thought he just might have pulled a muscle or “something.” He completed the shift and applied a cold pack as treatment, as the form indicated [79]
[79]T29
186He agreed this injury detail form confirmed he did not go off to a doctor “or anything like” that and did not lodge a WorkCover form. He agreed whatever happened in that incident resolved fairly quickly.[80]
[80]T29
187He did not believe he completed any “injury detail” report forms in 2015. There were no forms that related to his back in 2014 and 2015.[81] In 2014, he broke his foot.
[81]T30
188In further cross examination by counsel for the VWA, the plaintiff was taken to Dr Hajbabale’s 23 December 2013 note: “43 yo male, came with aggravation LBP, since yes.” [82]
[82]T102
189The plaintiff did not agree back pain at that time still related to a fall 18 months earlier but also agreed that if back pain had been caused by some sort of accident at work he would have told the doctor. As at December 2013, he had not told any doctor driving buses was causing his back pain. [83]
[83]T103
190He agreed that now his back has been injured and he had been told he has an L4-5 prolapse, he has reconstructed in his mind it was the driving of the buses. He confirmed he was blaming the buses.[84]
[84]T104
191Counsel for the TAC further cross examined the plaintiff about Dr Hajbabale’s use of the word “aggravated.” The plaintiff could not remember if he had been having lower back pain from driving buses before 18 December.[85] He only remembered complaining about seats collapsing or bottoming out in June and April 2016.[86] He then accepted he made at least one more complaint about seats, being in February 2016, with seats bottoming out. He could not remember what he discussed with his physio Mr Gemetzis on 8 February about back pain suffered on 4 February 2016.[87]
[85]T119
[86]T120
[87]T121
192He confirmed that it was a very frequent occurrence that he would experience problems with seats bottoming out. He frequently experienced problems with seats collapsing, and with the ergonomics of the seat, and was told to continue driving no matter what. He agreed he said that all those things exposed his back to strain throughout the course of his work, and that from December 2013 he had a problem with back pain in his lower back going down his left leg.[88]
[88]T122
193When he described the pain as “subsiding”, he meant until the next incident of the seat bottoming out or a backrest breaking or him having another awkward posture in the bus, after which the pain would flare up again. He had “been on the tablet the whole time.” He agreed there were hundreds of incidents of his back flaring up because of those awful seats: “And hundreds of incidents meaning everyone was putting in defects on buses and nothing was being done.”[89]
[89]T123
194By the word subsiding, he meant “the pain had just sort of, like, he would still work but he would come home, have a nice hot Radox bath and pretty much go to bed with a heat pack and just try and, like, totally relax.”[90]
[90]T172
195In re-examination, he had a vague recollection of the 18 December 2013 incident and the report in relation thereto. He believed the lower back left side pain went away and “just with the constant driving there are different seats on the buses and all that, it just returned.” Probably it went away a week later.[91]
[91]T157
Foot Injury
196The plaintiff was cross examined at some length about his foot injury, suffered at work in 2015.
197The plaintiff recalled a meeting on 23 June 2016 with his manager Mr Thorn. He agreed he mentioned to Mr Thorn that he drove bus 355 the previous day, and the seat bottomed out, causing him aggravation.
198Mr Thorn had reported that the plaintiff had had twenty-one individual days of sick leave in the first six months of 2016, and sometimes he would call in sick only an hour before the shift. The plaintiff agreed, “[y]es. If I’d woke up, I had a sore back then I just couldn’t”.[92]
[92]T25
199However, the plaintiff did not believe had twenty-one days off in that six-month period. He believed he took a few days off because of his back. He had fractured his foot the year before in the depot and thought that he may have had an amount of sick leave because of his foot. He did not agree he was a prolific reporter of injuries: “I was forever reporting buses that weren’t as – that shouldn’t cut the scratch, that shouldn’t be on the road, yeah”.[93]
[93]T26
200If he had a small niggle or a little bit of a strain, he would take care to report it.[94] He agreed he did not remember all the matters that he reported. They were very minor, such that he could not even be confident that he would remember them all now.[95]
[94]T26
[95]T27
201The plaintiff moved home and started attending Hastings clinic in about mid 2015. He did not have a memory at all of telling doctors at Hastings in the second half of 2015 about back pain. He was primarily seeing doctors about his foot.[96]
[96]T111
202In further cross examination, the plaintiff agreed he was seeing physio Tim Gemetzis from April 2015 to 2016. He agreed 4 June 2015 was the first time he had said anything to him about having back pain. “WC” was noted because he had a WorkCover claim for his foot. He agreed he had LBP starting to niggle all the way to the hip/low back area, consistent with sometimes feeling niggling in his low back.[97]
[97]T105
203When Mr Gemetzis noted on 5 June the plaintiff was limping, the plaintiff agreed that the back pain then complained of was associated with his foot problems “and also the problems with again, bus seats.”[98]
[98]T105
204He could not remember when it was suggested to him that, save for two entries in October 2015 and April 2016, he did not complain to Mr Gemetzis about problems with the seats.[99]
[99]T107
205An entry on 25 October 2015 set out the plaintiff was sore through his right foot and it was radiating from his lower back. He knew that over the years his back pain “just radiates from like the left to the right. Both sides are affected.” He was also then feeling sore through his neck.[100]
[100]T108
206He denied the sitting position he had on the bus was being affected at that time because of his injured foot, “because the seat was actually broken as in you couldn’t move it as such like weight wise”.[101] So he ended up getting a half cushion, that he “sort of like pushed” into the back of the seat more. It was a seat wedge, like a foam triangle that he would sit on to make himself more comfortable and gave him a bit of elevation. He agreed he needed the wedge to decrease the strain on his injured foot.[102]
[101]T108
[102]T109
207In further cross examination by counsel for the TAC, the plaintiff agreed his foot injury was placing strain on his lower back, as Mr Gemetzis noted on 3 July 2015. Lower back pain was again noted by him on 29 July, when he attended for his foot complaint. He agreed he was having low back pain in July 2015. Due to having been in a CAM boot, he was off balance.[103]
[103]T124
208The plaintiff agreed that driving buses with defective seats, with the problems he already had with his back because of his foot, was not assisting the situation at all, “but who was going to pay (his) bills?”[104]
[104]T125
209He agreed he was complaining to Mr Gemetzis about buses again in January 2016, having also complained in October 2015 and later in April 2016.[105]
[105]T126
210He agreed as late as May 2016, he was going to his treating practitioners complaining about amongst other things back pain – “Yes, and it’s still coming from my foot.” It was radiating up from his foot and was going up his leg and still to this day, he has pain in that foot from it. At that time, he thought the pain was from his foot going into his back. He thought it was coming up from his foot because of the lopsidedness of it. He agreed the injuries to his foot had caused problems with his back.[106]
[106]T127
28 January 2016
211An injury detail form was completed by the employer’s Sladjana Rakic at 9.36 am on 28 January 2016.
212Under the heading “Injury notes,” it was reported: “The inability to properly adjust the driver’s seat due to mechanical faults has left me sitting at awkward angles resulting in soreness in the shoulder and lower back.”[107]
[107]Incident/Injury Report and Investigation Form dated 27 January 2016 in similar terms. No medical treatment required
213Under the heading “Brief Conclusion,” it was reported: “Driver did a shift on a bus where the seat was unable to be adjusted due to a mechanical fault. As a result, the driver has suffered shoulder and low back pain.”
214The plaintiff did not lodge a claim form at that time, nor did he lose any time from work or have medical treatment.
215He advised:
“…during the course over the day you could be in six different buses and there could be 40 people working and there’s all different sized people in those seats and they’re adjusting seats left, right and centre and some of break and you’ve just got to put up with it.”[108]
[108]T31
216On 29 January, he consulted Dr Hull with pain in his upper back and right shoulder.[109] Dr Hull described muscular upper back pain, three days, radiating to the right shoulder.
“Pt knows its due to seat defects in the bus he drives (works as bus driver) Him and colleagues mentioned for long time now but nothing done – put in an incident form.”[110]
[109]T32; Dr Hull’s note referred to upper back pain
[110]The “Injury Detail” form
217Dr Hull also noted “tender over upper fibres trapezius to mid/upper back…no spinal tenderness.” The plaintiff believed the pain was in his upper back.[111] His lower back was not a problem at this time.[112]
[111]T57
[112]T33
218Ms Rakic was perhaps mistaken and should have put “upper back” in the form.[113]
[113]T34
219When next seen at the clinic on 10 February 2016, “back pain” was noted. There was no mention of what caused the back pain or whether it was upper or lower. He believed it was upper back because it was close in time to what was happening in January 2016. He was pretty confident, but it was a long time ago.[114]
[114]T57
220In an entry of 2 April 2016 where weight loss was discussed, there was also a note of “neck/back pain”, but no mention of the cause thereof. He thought “this was clarifying from the previous back in February or January.”[115]
[115]T57
221In re-examination, he explained he reported the incident on 27 January 2016 because it was another kind of injury and just to keep the company up to date with what was happening with the buses and his back and his right shoulder. The symptoms from that incident were just ongoing – “It was, like, because of the seats”.[116] He agreed it was hard to remember this specific incident. It probably caused him problems for a couple of weeks. He could not remember specific treatment in that few weeks or the symptoms.[117]
[116]T158
[117]T158
4 February 2016
222An “Injury Detail” was completed by Ms Rakic at 2.29pm.
223Under the heading “Injury notes,” it was reported: “was just dropping speed coming into Flinders. I hit a bump on the road and bottomed out with the driver’s seat and jarred lower back.”
224Under the heading “Brief Conclusion,” it was reported: “whilst driving the driver had overcome an unexpected bump on the road which had him move in an uncomfortable position causing some pain to his lower back. Bus has been taken off the road since for mechanics to look at. The driver was asked to monitor his back for further discomfort during shift.”
225The plaintiff agreed this incident was very like the one on 22 June that he described in his affidavit – “the company do not maintain their buses.”[118]
[118]T34
226It was not a speed hump, it was an unexpected bump on the road – a pothole. It was a sudden change in the road surface that caused a sudden jarring.[119]
[119]T35
227He agreed the form seemed to indicate that he did not go to the medical centre. He now believes he saw a doctor around February 2016 for back pain, but he just could not remember it “because it was too far back.”[120]
[120]      T35
228Having been told notes of attendances at Hastings on 10 and 25 February made no reference to the February 2016 incident or back pain, and he was attending for other issues. He thought it was possible he did not see a doctor and just applied a cold pack.[121]
[121]      T36
229He agreed his affidavit made no reference to a February 2016 incident and that whatever happened then was so minor he just forgot about it. He agreed the main thing that stood out in his mind was that on 8 April there was an incident when the backrest on his seat gave way. He could not remember an incident report in relation to that. He could not remember reporting it. He could just vaguely remember the seat cover breaking but not doing an injury detail form like the earlier ones. He agreed the seat rest breaking was very different to the seat bottoming out. He just could not remember putting in one of these forms for what happened in April.[122]
[122]T37
230The 4 February 2016 Ventura Incident and Investigation Form was in similar terms to the injury detail form.
231Under the heading “Description of activity briefly describe what happened including sequence of events leading up to the actual incident”, the following was set out:
“Was just dropping speed. Coming into Flinders I hit bump in road and bottomed out with driver’s seat and jarred lower back. The day of incident was 4 February 2016.”
232Having been reminded he told counsel for the VWA he had no treatment or time off work following the February incident, he agreed physio Tim Gemetzis certified on 11 February 2016 that he was unfit for work 8-9 February “lower back pain and leg/foot pain. Reported driving incident (@work).”[123]
[123]T82
233The plaintiff confirmed he complained of back pain at Hastings on 10 February 2016. He could not remember if that pain related to a flare-up on 4 February 2016 with the seat bottoming out.[124]
[124]T128
234When he started with Ventura, he had a full medical and his back was fine. He was a school bus driver as a casual for the first year, then in order to go fulltime, he had to go onto the track bus, which meant driving passengers and the school run. It was not long after fulltime driving started that he started to have problems with his lower back and also pain that would shift down his left leg. He had been having back problems since 2013.[125]
[125]T84
235He agreed that sort of pain caused problems sitting for long periods. Standing was not an issue because he was always in the bus driving. He had problems with things like bending and twisting his spine and lifting of weights.[126]
[126]T85
236As to the course of that pain:
“the pain like it subsided and, like, I had to continue to drive. I had to make a living.”[127]
[127]T85
237Until the next incident of the seat bottoming out, or the backrest breaking, or having an awkward posture in the bus, which would cause the pain to flare-up again – “I’d be on the tablet the whole time.”[128]
[128]T85
238He agreed he had hundreds of incidents happening of it flaring-up his back because of the awful seats. After a while, he was going to Ventura and making complaints about the buses and they were doing nothing about it.[129]
[129]T85
239He agreed that he got to the point “why do I bother putting in another incident report nothing’s changing or happening. It’s all a waste of time”. That was why he would phone WorkSafe to check the buses.[130]
[130]T86
240The February 2016 incident involved just the bottoming out of the seat. The seat had a mechanic spring loaded into it, but it just did not work. When he was sitting there it goes boom.[131] It stays down and goes “bang”.
[131]T158
241He could not remember how long he had back symptoms after that incident.[132]
[132]T159
8 April 2016
242Dr Gibbs at Hastings on 2 April 2016 noted “neck/back pain.” This was “probably driving – steering. Some buses were heavier in steering wheels like some were and some weren’t. ... [T]he older buses were the worst.”[133]
[133]T128
243Dr Rugara noted on 13 April 2016 :
“Work injury. He works for Ventura Bus Services. On 8 April 2016 he accelerated and the back support in his seat broke. He called for changeover of bus but was told to continue driving. He has since developed back pain. Has taken Panadeine Forte and seen the physiotherapist. He describes that in the past he has notified the OH&S consultant who has done nothing. He has contacted WorkSafe and at the time of the onsite inspection the damaged buses were not available for inspection. A whole spine x-ray was planned.”

546He would accept that initially the plaintiff may have had some mild soft tissue symptoms as a result of the bouncing around in the seat, but he believed the current presentation was not physically based and pointed towards a functional problem. Physically, he did not believe there was any ongoing problem related to the plaintiff’s employment and could not see any particular reason why he could not do full time normal duties driving.
Mr Roy Carey, orthopaedic surgeon
547Mr Carey examined the plaintiff in February 2022 for the purposes of an impairment assessment.
548There was reference only to the June 2016 incident and a history that the pain had continued to this time, but it spread.
549Mr Carey noted the plaintiff had obtained work with Coles in November 2021 on a casual basis.
550On examination, the range of motion observed was consistent with the plaintiff’s observed behaviour during consultation.
551The presentation was consistent with the workplace injury. The diagnosis was aggravation of lower lumbar spondylosis with lower limb symptoms, but no radiculopathy. The prognosis was for continued discomfort into the foreseeable future. The condition was now stable and unlikely to change substantially.
Overview
552It is accepted that an incident occurred while the plaintiff was driving a bus at work on 22 June 2016.
553It is not in dispute that while driving a bus that day, the plaintiff drove over a speedhump and there was some bottoming out of his seat causing sudden onset of low back pain.
554There was CCTV footage about which Dr Wood and Dr Drnda commented in their reports. As the plaintiff was not cross examined about the film which was shown in Court on Day 4, I do not propose to analyse what was shown on the film and note it did show the plaintiff reaching for his lower back and grimacing as the bus went over a speed hump. [227]
[227]T272
555The plaintiff described the seat beneath him “crunched” when he went over the hump. He let out an expletive when he hit the hump and he experienced very immediate, sudden and extreme pain.[228]
[228]T23
556There is no dispute that the plaintiff suffered injury to his back in the incident. The consensus of recent medical legal opinion is that he suffered an aggravation of degenerative changes at L4-5.
557Dr Drnda agreed with this diagnosis but considered any aggravation had resolved and was replaced by constitutional factors. He is an outlier in this regard, and I reject his view as it lacks a path of reasoning and ignores the plaintiff’s ongoing symptoms since 22 June 2016, which were not challenged, and have required treatment since the said date.
558In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the transport accident is serious and permanent.
559In Petkovski, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused…”[229]

[229]At 443

Credit
560As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[230]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[230](2010) 31 VR 1 at 12
561Counsel for the TAC submitted in general, the plaintiff’s evidence was “perhaps unsatisfactory”. Counsel gave the example of the plaintiff’s evidence as to the number of incidents causing strain to his back ranging from perhaps hundreds when first cross examined, then walking back from that number when cross examined by counsel for the VWA, on further cross examination on behalf of the TAC going back to his original evidence, which he agreed was all true, then in re‑examination the plaintiff sought to paint a picture where there was no problem through until 22 June 2016, when there was this sudden and dramatic incident.[231]
[231]T252
562It was submitted the fairest way the Court could deal with that evidence was that it just could not accept any of it. The four different propositions were all contradictory. The plaintiff seemed to be in agreement with whatever proposition was put to him by the cross examiner at various times. His own account of the matters cannot be regarded as very reliable, particularly in light of paragraph 6 of his affidavit.[232]
[232]T252
563It was submitted it makes sense as the plaintiff agreed, that he had ongoing pain from the April 2016 incident which worsened in June when the Court “put the whole picture together, for a man who was exposed to a highly unsatisfactory regime of equipment: effectively seats that bottom out, seats that break, seats that cannot be adjusted, seats that are requiring twist while he is attending to his employment.”[233]
[233]T253
564Counsel for the plaintiff did not address in any detail in relation to the plaintiff’s credit but asked the Court to find the plaintiff incredibly stoic and somebody who wanted to continue to work and perhaps was not forthright with employers about his preexisting problems.[234]
[234]T296
565In my view, the plaintiff was an unreliable witness who at times gave conflicting answers when asked the same question by different cross examiners. Other examples included his description of the circumstances of the April 2016 incident and whether there was a change in his symptoms as a result of any incident on 23 June 2016.
566The plaintiff was prone to exaggeration having initially accepted there were hundreds of incidents while driving causing back strain, then denying this was the case and ultimately focussing on the June 2016 incident as the cause of his current condition.
567While acknowledging these difficulties at times with the plaintiff’s evidence, the application must be decided on the whole of the evidence, including objectively established and undisputed facts, in particular histories given by him before this litigation was contemplated and made closer to the relevant events and clinical notes detailing prescribed medication at various times.

Pre-22 June 2016 back condition
568Counsel for the TAC submitted that the plaintiff had significant problems with his lumbar spine, certainly commencing in 2013, set out not only in the doctors’ notes but the incident reports.[235]
[235]T249
569The absence of a report from the plaintiff’s general practitioner, Dr Rugara, who has seen him before and after the June 2016 incident, invokes a very strong Jones v Dunkel inference.[236]
[236](1959) 101 CLR 298; T238
570It was submitted “clearly” the plaintiff was experiencing lower back pain radiating down the left leg, itself highly suggestive of discal injury, before the 22 June incident, with complaints through in 2015 that have continued from December 2013 that would have caused problems with sitting for prolonged periods, twisting, bending, and lifting.[237]
[237]T250
571There was also the plaintiff’s own evidence of severe back pain in April 2016.[238] Further, there was a clinical note of 10 May 2016 which briefly described back and neck pain just a month before the subject transport accident.[239]
[238]T309-310
[239]T249
572It was submitted the medical questionnaire completed by Dr Rugara on 26 July 2016 is a critical document. It mentions only the April 2016 incident. The description of the facts were entirely consistent with what happened in April, and matched the gp’s 13 April entry.[240]
[240]T239
573There was no mention in the questionnaire of the 22 June 2016 incident, only the incident on 8 April 2016. The restrictions in that questionnaire related also to April.[241]
[241]T243
574On this interpretation of the questionnaire, it was submitted the disc prolapse referred to in the questionnaire resulted from the April incident.[242]
[242]T241
575While the plaintiff accepted that the April incident was not “a big deal” because he did not make an incident report, he did attend his physiotherapist 10 days later, and made mention of intending to make a claim. The likelihood was he did submit an incident report.[243]
[243]T303
576It was submitted that although the VWA tried to confuse the whole back issue with the left foot fracture, back complaints were mentioned in the treatment notes in late October 2015, January 2016, and April 2016 and also mentioned in the incident reports.[244]
[244]T250
577When the plaintiff was sent for an x‑ray in April 2016, included was the clinical note “?disc injury”.[245]
[245]T242
578There was some confusion about when the plaintiff started taking Lyrica or Mobic. Whether it was 2013 or 2015, it was clearly before the June 2016 incident.[246] Mobic was prescribed on 9 May 2016 and earlier in November 2015.[247]
[246]T250
[247]Both prescriptions seem to be for the left foot
579Considering the entirety of all the reports the plaintiff put in, his evidence was clearly he got sick of the situation with the buses and he was putting in heaps of reports, and he had dobbed the employer in to the VWA anonymously so WorkSafe would come out and have a look at the buses.[248]
[248]T252
580In summary, there were a multiplicity of traumas to the spine, with significant symptoms, before 22 June 2016. There were also later incidents that were productive of trauma and further impairment and pain.[249]
[249]T273
581It was submitted the 22 June incident was an innocuous one, having regard to the CCTV film, and that it was not possible in any satisfactory way to identify impairment consequences flowing from that incident compared to all the incidents of trauma before and after to satisfy the definition of serious.[250]
[250]T273
582As of December 2013, the plaintiff was attending a gp complaining of lower back pain, and continued to drive these buses, and continued to suffer insults. He attended his gp during 2015 and 2016, right up until a month before the accident, complaining of back pain, and he was being prescribed Panadeine Forte as at April 2016 for back pain and was sent for an x‑ray.[251]
[251]T253
583It was submitted that was all a picture of a man suffering significant problems before the incident date, and it makes his task in satisfying Petkovski very difficult.[252]
[252]T254
584Further, it was submitted the incident on 23 June was also relevant as the plaintiff had an identical incident that day and no medical practitioner had really provided any analysis of that event. There was also no mention of 23 June in the questionnaire.[253]
[253]T256
585The there were the events in October 2016 which the plaintiff said had made his back worse. The first was on 4 October when “shifting” gears aggravated his pain. He reported an exacerbation of pain on 11 October while leaning to read the speedometer on the bus and later on 19 October while driving a bus with manual gears.
586The plaintiff was on restricted duties for a month or two before the October incidents, but it was after those that his gp regarded it as appropriate that he go off work and have an epidural injection, which had not been suggested before then. Dr Rugara had provided no explanation of this situation.[254]
[254]T258
587Further, it was submitted the medico legal opinion relied on by the plaintiff was based on a wrong history of no back pain prior to 22 June 2016, or implicated April 2016 anyway.
588Dr Singer reported that the plaintiff stated he did not have a previous history.[255] Dr Sillcock had no history of any previous problems, save for 23 December 2013, so her history was entirely wrong.[256]
[255]T243
[256]T265
589Those medico legal examiners who consider the plaintiff is totally incapacitated were unaware that he had been working.[257]
[257]T245
590Further, both Dr Blombery and Professor Bittar considered both the April and June 2016 incidents were relevant to the plaintiff’s ongoing complaints.[258]
[258]T263

The plaintiff
591When addressing the seriousness of the TAC injury, counsel for the plaintiff did not focus to a significant extent on the plaintiff’s back condition before the said date.
592It was submitted from the plaintiff’s perspective, there were clearly incidents and episodes before 22 June, but seen in isolation, he had recovered by 22 June, according to Dr Wood.[259]
However, counsel for the plaintiff emphasised that the plaintiff was working full time on unrestricted duties as at 22 June. He had made no request for modified duties before that date.
[259]T302
593There was no evidence that the restrictions set out in the medical questionnaire dated 26 July were put into operation before that date let alone since April as counsel for the TAC submitted. If that had been the case, one would expect there to be certificates in these terms or mention in the clinical notes. There was none.[260]
[260]T287
594While a number of doctors supportive of the plaintiff’s application did not know about any back problems before 22 June 2016, their opinions could still be relied upon because the plaintiff was working full time anyway as at that date.[261]
[261]T305
595The only investigation of the plaintiff’s back before 22 June was the x-ray in April and it was normal.[262]
[262]T285
596It was submitted indicative of there being a serious aggravation on 22 June, it was the day the plaintiff named as being the date of injury for his claim for compensation, as he did in his impairment benefit claim, rather than the course of employment.[263]
[263]T287
597Following the 22 June incident, there was a worsening of the plaintiff’s back symptoms that required multiple injections, and permanent insertion of a stimulator.[264]
[264]T287
598Counsel distinguished the present case from Belgrave Heights, where the Court of Appeal described the transport accident in that case as being “the final straw.”[265]
[265]T306
599It was submitted it is not a situation in the present case where the consequences already precede the episode. This is very different; everything starts following the 22 June episode.[266]
[266]T307
600The plaintiff’s evidence is that the 22 June 2016 incident was the one that “arced” his back.[267] There was a worsening of symptoms.[268] He believed it was after then that he was prescribed Lyrica or Mobic.[269]
[267]T291
[268]T290
[269]T292
601Straight after the 22 June incident, the plaintiff’s employment capacity was impaired. He was no longer able to drive a manual bus. The reason he ultimately stopped work in October was because he was not coping with the fact that the employer was not giving him an automatic bus.[270]
[270]T293
602It was submitted the further incident on 23 June was not relevant because the plaintiff’s evidence was there was no change in his condition as a result thereof.[271]
[271]T279
603The plaintiff saw Dr Davison on 25 July 2016, one month after the 22 June incident, before any issues in October. He was then complaining of constant pain extending across the lower back and radiating down the posterior aspect of the right thigh. He was working 2x2 hour driving sessions a day. He was then having physio and taking paracetamol for pain relief.
604When seen by Dr Barton on 11 October 2016, the plaintiff was still driving 4 hours a day. He had persisting symptoms since 22 June.
605The plaintiff’s back was already compromised by October 2016.[272] The plaintiff thought they were all part of the same thing and that is why he did not put in a claim for October.[273]
[272]T298
[273]T289

Findings
606While the plaintiff first complained of back pain in December 2013 the cause of which is not totally clear, he made no complaint of work-related back pain to his gp until January 2016. However, his complaint at that time was upper back pain, not his current lower back complaint.
607While there were injury detail forms in December 2013, January and February 2016, these appear to be minor incidents, involving one day off work and requiring little treatment. There were no injury detail forms in 2014.
608In a driver’s medical assessment form completed for work purposes on 4 February 2015, Dr Rai certified on examination, back movement was normal.
609It is not a situation of ongoing lumbar pain since December. Back complaints in 2015 largely related to the plaintiff’s foot fracture and altered gait in relation thereto.[274] The clinical records indicate the prescription of Mobic in November 2015 and May 2016 was for the left foot problem.
[274]3, 29, and 31 July; 20 August; and 27 October.
610The 8 April 2016 incident is of more significance. When seen on 13 April, Dr Rugara noted back pain describing the plaintiff’s problems driving buses. Dr Rugara then arranged for spinal x-rays. Volatren was prescribed and it was noted the plaintiff had taken Panadeine Forte and seen a physio.
611However, the plaintiff continued full time bus driving, with overtime when available, until 22 June 2016. The next complaint of back pain to Dr Rugara involving any bus driving was not until 27 June, although the plaintiff was seen on a number of occasions for other issues.
612While it seems Dr Rugara is referring to the 8 April incident throughout his July 2016 questionnaire, there was no prolapse identified until the CT following the 22 June incident. The April spinal x-rays were normal.
613The plaintiff had two weeks off work after the 22 June incident. He had never had that level of time off work before for a back issue.[275]
[275]Dr Rugara noted a longer absence- 28 June to 4 August
614Significantly, the plaintiff made no request for a change of or modification of duties until after 22 June. No restrictions were imposed on his work until 27 June 2016, when a WorkCover Certificate of Capacity was produced. The plaintiff’s request to drive automatic buses was first made after 22 June.
615While the plaintiff’s evidence about the effects of 23 June was somewhat contradictory, I accept the significant injury to his lower back was suffered on 22 June and there was no relevant change in his condition the following day.
616In any event, the plaintiff has given conflicting histories as to what occurred on 23 June. Further, when he saw Dr Rugara on 27 June, he mentioned only the 22 June incident. He did not mention anything happening on 23 June when he met with his manager Mr Thorn that day.
617In my view, the plaintiff’s issue with the manual gears and leaning to see the speedo were just a part of his problem driving a manual, caused by the 22 June incident. The October incidents occurred when he was already on modified duties, and in my view did not aggravate his condition to any relevant degree.
618As Dr Rugara noted on 2 November 2016, Ventura had taken the plaintiff off the roster indefinitely because they could not secure an automatic bus for him to drive.[276]
[276]T134

619The refusal to give the plaintiff a manual bus caused him to stop work in October- not any additional issues with driving a manual. His pain had persisted since the 22 June 2016 incident as Dr Barton and Dr Davison confirmed.
620Stronger medication had already been prescribed by Dr Rugara before October 2016, after the 22 June incident. Mobic was prescribed on 4 July; on 16 August Lyrica and Voltaren, Panadeine Forte and Mobic; and in September Endone.
621While not providing a detailed report as to the plaintiff’s pre and post 22 June 2016 spinal condition, in 2018 being aware of the April 2016 incident and the plaintiff’s subsequent problems with gears etc, Dr Rugara thought the 22 June incident still materially contributed to the plaintiff’s spinal condition.
622Unlike Belgrave Heights, the transport accident in this case the 22 June incident was not the “last straw.”
623For the reasons discussed below, having made a comparison of the plaintiff’s spinal condition immediately before the 22 June incident with his condition thereafter, in my view, the additional impairment is serious.[277]
[277]Per Petrovski

Consequences
Defendant’s submissions
624The first submission was that one way the issue of seriousness could be approached is simply from a view that the plaintiff’s consequences in totality, irrespective of their cause, are not serious.[278]
[278]T235
625Any reliance on work was unsatisfactory. Very clearly the plaintiff had engaged in three separate periods of work with Two Bays from 2019, sometimes as a concrete mixer and at other times driving a 3‑tonne tip truck providing concrete and mulch at various sites.
626In his 2021 WorkCover statement regarding his right elbow injury, he stated he was working 40 to perhaps 50 hours a week, involving bending and constant movement. He did not mention having any difficulty with his back doing that job. He stopped various jobs because work ran out, not because of his back issues.[279]
[279]T236
627In his application for employment with Coles in November 2021, the plaintiff indicated he was prepared to take on any form of employment. He expressed an ability to do heavy lifting.[280]
[280]T247
628The Tasmanian gp had the plaintiff pretty right for work when he examined him in 2022 for his knee. There is nothing in that report consistent with a serious back injury or necessary restrictions.[281] It was a statement by the doctor of the plaintiff’s overall capacity, not just relating to his knee.[282]
[281]T245
[282]T246
629It was submitted there had to be a real reservation about any inability to drive a bus, because the plaintiff could drive a tip truck and a cement mixer. If it was said he could only do that work part-time, he had got up to 45 hours a week at Two Bays. Whoever thought he could not work as a bus driver did not know the heavy work he was doing elsewhere.[283]
[283]T248; Dr du Toit and Mrs Rankin were both aware the plaintiff was working
630In his April 2021 statement relating to his elbow injury, the plaintiff said he was in good health and not requiring treatment, yet he was having the stimulator inserted.[284]
[284]T245
631The plaintiff also has described improvement since the insertion of the spinal cord stimulator. He has had good pain relief and gone off Norspan. The insertion of the stimulator itself does not make it a serious injury.[285]
[285]T237
632Dr du Toit confirmed the improvement post insertion of the stimulator. There is no report from Dr Rugara about the plaintiff’s condition worsening. Professor Bittar reported there had been no change in the plaintiff’s condition.[286]
[286]T266
633In terms of other consequences, it was submitted it was difficult to challenge a plaintiff’s complaint about pain or sleep.
634It was hard to accept the plaintiff would have problems driving a normal car when he could drive a tip truck and cement mixer at work. It was difficult to accept he had problems with prolonged postures when he could sit for hours in those vehicles.[287]
[287]T259
635The plaintiff’s claimed interference with his day-to-day activities due to spinal pain depends on an acceptance of the veracity of his evidence.[288] Doctors accept what the plaintiff says unless they “play investigator.”[289]
[288]T260
[289]T262
Plaintiff’s submissions
636It was submitted the pain and suffering consequences of the plaintiff’s spinal impairment are serious with the normal indicia. He has been unable to return to full time employment, has suffered pecuniary loss, needs ongoing medication treatment and the stimulator insertion itself was said to be serious.[290]
[290]T306
637The plaintiff was not challenged about the consequences to which he deposed. There were complaints of pain, treatment and issues with work, culminating in him ultimately ceasing working at IGA.[291]
[291]T274
638The intensity of the plaintiff’s lower back, buttocks and leg pain fluctuates, but is always present. He experiences referred pain and cramping in his right buttock and thigh. The intensity of that pain and cramps is difficult to predict. He continues to experience referred pain from his lower back into his legs, and numbness into his left leg.
639Dr Wood mentioned a deterioration in the plaintiff’s spinal condition in the last eighteen months.[292]
[292]T277
640As a result of his back pain, the plaintiff’s back movement is restricted as a number of examiners have confirmed. He has difficulty with bending, heavy lifting etc. He also has difficulty with prolonged postures.
641Following the 22 June 2016 incident, the plaintiff has required extensive treatment for his lower back with ongoing prescription of pain killing medication and the requirement for a number of procedures.[293]
·        31 October 2016: epidural injection L4-5 disc bulge (Dr Rugara referral);
·        22 September 2017: CT guided lumbar spine injection Left sciatica Disc bulge L4/5 (Dr Rugara referral);
·        23 July 2018: CT guided epidural injection bilateral sciatica (Dr Rugara referral);
·        9 August 2019: bilateral L3/L4/5 medial branch blocks (Dr du Toit);
·        6 January 2021: right L4 and L 5 epidural injections (Dr Buchanan);
·        21 January 2021: trial of spinal cord stimulator;
·        2 May 2021: removal of spinal cord stimulator and transformaninal epidural injection;
·        17 August 2021: permanent insertion of spinal cord stimulator.
[293]T294
642Replacement of the current stimulator is anticipated every six to seven years.
643The plaintiff was on a prescription for Norspan patches until one year ago. He has also previously been prescribed Tramadol, Panadeine Forte, Voltaren, Lyrica, Endone, Mobic, and Panadol Osteo for back pain.
644Before 22 June 2016, the plaintiff was able to work full time unrestricted duties. However, work restrictions were necessary after 22 June, right up until the time he finally stopped work with the employer in October. Work was “a big-ticket item.”[294]
[294]T298
645The plaintiff had a few weeks off work initially. When seen by Dr Davison a month after the 22 June incident, the only incident he mentioned was that on 22 June. The plaintiff was then working 2 x 2 hours a day and never returned to more hours with the employer.
646Even if the plaintiff had been provided with an automatic bus, he would still have only been able to do 15 hours a week because of the damage that had already been done to his back on 22 June. He just could not cope with it anymore.[295]
[295]T134
647After leaving work with the employer on 21 October, the plaintiff’s next job was in Corowa from mid-2018, where he had problems with his back.
648While he had three stints at Two Bays from 2019, the plaintiff did not necessarily accept that this work was heavy. He was not shovelling. He just had to put his arm up and make sure the chute was clearing.[296]
[296]T299
649From October 2020 until April 2022, the plaintiff drove buses part time for O’Shannessy, but stopped that job as it stressed his back. He then worked as an online driver with Coles. His job application for Coles was only in relation to that job and did not envisage an unlimited range of jobs.[297]
[297]T299
650The Court was asked to find the plaintiff incredibly stoic and somebody who wanted to continue to work, and perhaps he was not forthright with employers about preexisting problems.[298]
[298]T296
651The job at Coles lasted only four months because of the plaintiff’s knee injury. He then worked on grocery fill for six weeks but could not sustain the work due to worsening back symptoms.[299]
[299]T299
652The summary of earnings confirms the plaintiff has suffered pecuniary loss as a result of the 22 June incident having gone from earning $74,000 in 2016 to about $30,000 in the following two years, with an ongoing loss.[300]
[300]T299
653Further, the preponderance of medical opinion is that the plaintiff has very limited or no capacity for work as a result of his lumbar condition.
654Dr Sillcock considered the plaintiff has no capacity for preinjury employment due to his work injuries. Professor Bittar considered he is permanently incapacitated. Dr du Toit thought the prognosis was very poor.
655Due to his back pain, the plaintiff also has issues with his domestic life being restricted in home duties, sleep and the ability to walk his dogs. These consequences, together with ongoing pain and restrictions, were corroborated by his husband whose evidence was unchallenged.

Overview
656The evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors).[301]
[301]Maxwell P in Haden Engineering at 11
657The plaintiff suffers constant, fluctuating lower back, buttocks and leg pain. He also experiences referred pain and cramping in his right buttock and thigh, the intensity which is difficult to predict. Referred pain from his lower back into his legs, and numbness into his left leg continues.
658He has described his current spinal pain to medico legal examiners in similar terms.
659The plaintiff’s evidence about his pain killing medication regime at various times was somewhat confusing. The clinical notes are therefore of great assistance when considering his incident related treatment and confirm a significant regime of painkilling medication since 22 June 2016.
660Before June 2016, there was one prescription of Volatren Rapid and Panadol Osteo for back pain in December 2013. The plaintiff has been prescribed Mobic before and after the 22 June incident. It was prescribed on 11 November 2015 and on 9 May 2016 for left foot pain.
661Post 22 June 2016, Mobic was prescribed on 4 July during a WorkCover attendance for back pain. On 16 August 2016, Lyrica was prescribed for back pain. On 31 August, medication for ongoing back pain was Panadeine Forte. Voltaren, Mobic and Lyrica.
662On 11 September, Dr Rugara noted the plaintiff was currently taking Endone borrowed from his mother. Endone tablets were prescribed on 3 October but ceased on 11 October as the plaintiff had had adverse reaction to Endone.
663It is difficult to ascertain when Norspan patches were first prescribed but there is no suggestion they predated the 22 June incident. The plaintiff used those patches until a year ago.
664Current medication appears to be Panadeine Forte and Volatren from histories to recent medico legal examiners. The opiate Palexia was also prescribed by Dr du Toit in April 2019 and was still required in high doses as Dr Blombery confirmed in May 2023.
665In Kelso v Tatiara Meat Company Pty Ltd, Dodds-Streeton JA said:
“.. The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[302]
[302](2007) 17 VR 592 at 199
666The plaintiff has undergone a significant number of procedures on his lumbar spine, detailed above.
667Dr du Toit explained the lifetime of the spinal cord stimulation system is six to seven years, and at that point, the battery generator may be replaced.
668While there was some improvement in the plaintiff’s spinal pain when the stimulator was first inserted in late 2021, presently, the pain is not adequately managed by the stimulator as Dr du Toit confirmed and he has suggested the plaintiff consider a right L4 plus L5 transforaminal epidural injection to further improve L4‑5 disc mediated pain.
669The plaintiff has not worked on a full time consistent basis since 22 June 2016 and has been unable since then to earn in the range of $74,00 per annum as he was prior to his 22 June injury.
670After two weeks off work, he was unable to return to normal hours with the employer working only 20 hours a week until he was taken off the roster in October 2016 as he could not be provided with an automatic bus.[303]
[303]Dr Rugara reported there was a period of no work from 28 June to 4 August
671The plaintiff was then unable to return to the workforce until 2018 when he had the job at Corowa as a driveway attendant where he worked with some difficulty. His work from 2019 involved 3 stints at Two Bays. While the job was hard at times, I accept he had to keep working to earn a living, having to “grin and bear it” as he described.
672He told his chiropractor Mrs Rankin in October 2021 that his job involved up to 13 hours a day of work, which he reported as whipper-snipping, mowing, driving and heavy lifting. They had discussed that this was not a good way to manage his pain or general lifestyle, as it was impacting on his stress levels and sleep as well as his pain. The plaintiff was then looking for some other form of work.
673Dr du Toit in late 2021 was also aware the plaintiff was working after the insertion of the stimulator noting the plaintiff had returned to work and was looking for a job change that would not involve such long hours which may be contributing to his current pain levels.
674While at Two Bays, the plaintiff did some part time bus driving for O’Shannessy but struggled. He then worked at Coles and more recently, a brief stint at IGA but he could not cope due to back pain. His income has never reached the level he earned when working for the employer in 2016 before the 22 June 2016 injury.
675I accept that the plaintiff has tried to continue working, despite ongoing back pain, due to his stoicism and the need to earn a living.
676His back condition appears to have deteriorated significantly in the last 18 months and his employment capacity is now extremely limited by that condition.
677A number of medico legal examiners consider the plaintiff is not fit for suitable employment due to his spinal condition. Their view of the plaintiff’s incapacity was shared by Dr Drnda, although he thought think any incapacity was related to the June 2016 incident. In his view, the plaintiff is unable to do any work that requires repetitive bending, twisting, lifting or carrying heavy items and prolonged postures and his injuries affect his domestic activities.
678As a result of chronic back, buttock and leg pain, the plaintiff continues to be affected with activities of daily living, specifically bending, standing, and walking with reduced postural tolerances.
679His enjoyment of a range of domestic and recreational activities continues to be affected by his back condition, as his husband confirmed.
680Taking into account all the evidence, I am satisfied the consequences of the aggravation of the plaintiff’s lower back condition in the 22 June 2016 transport accident are serious.
681As his lumbar pain and associated restrictions have continued for nearly eight years without significant improvement and the need for the stimulator for life, I am satisfied his lumbar impairment is long term, likely to last for the foreseeable future.
682Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the transport accident on 22 June 2016.

INCOME
Year ending 30 June	Gross income from personal exertion
2012	$13,236
2013	$50,402
2014	$50,055
2015	Nil
2016	$74,680
2017	$29,523
2018	$29,231
2019	$23,684
2020	$2,297
2021	$23,051
2022	$12,493
2023	$2,409

[2024] VCC 354

26 March 2024