Delaney v VWA

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0069

PAUL DELANEY	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	BEACH, KENNEDY JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2025
DATE OF JUDGMENT:	4 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 59
JUDGMENT APPEALED FROM:	[2024] VCC 797 (Judge Myers)

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ACCIDENT COMPENSATION – Workplace accident – Serious injury – Application for leave to commence common law proceeding – Lower back injury – Whether judge erred in concluding that the consequences of the injury were not very considerable – Whether judge’s reasons did not disclose an adequate process of reasoning to demonstrate on the whole of the evidence why the applicant’s application was refused – No error made by primary judge – Application for leave to appeal refused.

Workplace Injury Rehabilitation and Compensation Act 2013, ss 335, 325(2)(c).

Juma v Kone Elevators Pty Ltd [2024] VSCA 217, applied; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, referred to.

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Counsel
Applicant:		Mr ADB Ingram KC with Mr JJ Harris
Respondent:		Mr MJ Hooper SC with Ms HE Daniel
Solicitors
Applicant:	Maurice Blackburn Lawyers
Respondent:	Injury Disputes Practice Lawyers

BEACH JA
KENNEDY JA
J FORREST AJA:

Paul Delaney, the applicant, sustained an injury to his lower back in the course of his employment between October 2016 and October 2019. Mr Delaney sought leave to issue a common law claim for pain and suffering damages against his employer pursuant to s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’).
Under s 325(2)(c) of the Act, Mr Delaney needed to demonstrate that he had sustained a ‘serious injury’. This required him to prove that the consequences of the impairment produced by the injury to his lower back were ‘more than significant or marked, and as being at least very considerable’.[1]
[1]Workplace Injury Rehabilitation and Compensation Act 2013, s 325(2)(c).
Mr Delaney’s application was heard before Judge Myers in the County Court on 18 and 19 April 2024. In her judgment of 7 June 2024, the judge determined that Mr Delaney had not established that the permanent impairment consequences of his spinal condition met the serious injury threshold and dismissed his application.[2]
[2]Delaney v Victorian Workcover Authority [2024] VCC 797 (‘Reasons’).
Mr Delaney had argued that it was a simple case. The lower back injury (which was either an aggravation of existing lumbar spondylosis or, alternatively, a frank L5-S1 disc disruption) had effectively left him with, in the vernacular, a permanent light work back which had significant consequences for him. This, it was said, satisfied the statutory test.
The respondent, the Victorian WorkCover Authority (‘VWA’) had argued that Mr Delaney’s testimony as to his level of impairment should not be accepted. It also said that his other ailments (issues with his upper back, psychological impairment and injury to his knees) meant that it was difficult, if not impossible, to identify the consequences resulting from the subject injury and whether they satisfied the statutory test.
The judge accepted VWA’s contention as to Mr Delaney’s credibility and found that Mr Delaney was an unsatisfactory witness who, despite having genuine symptoms related to the lower back injury, had overstated the extent of his asserted disability and failed to satisfy the statutory test. She dismissed his application.
Mr Delaney now seeks leave to appeal that decision, essentially on the basis that the judge’s conclusion was wrong.

The evidence at trial

The evidence in the trial concluded on 18 April 2024, and submissions were made the following day.
Three affidavits were tendered by Mr Delaney —
(a)his affidavit of 16 May 2023;
(b)his supplementary affidavit of 20 March 2024;
(c)an affidavit of his partner, Rachel Martin, of 21 March 2024.
Mr Delaney was then cross-examined extensively (covering just over 70 pages of transcript).
Each party tendered their court book in its entirety.
Mr Delaney’s court book contained the following relevant material:
(a)a number of operation reports dated August 2019, October 2019, December 2019, February 2020 and June 2020;
(b)a report of Dr Neels du Toit, pain physician, of May 2021;
(c)a report of Dr Anuradha Prakash, Mr Delaney’s general practitioner until 2021, of January 2022;
(d)a report of Mitchell Edwards, physiotherapist, of March 2024;
(e)a report of Dr Hazem Akil, consultant neurosurgeon, of January 2024;
(f)a report of Dr Justin Lewis, consultant psychiatrist, of January 2024;
(g)a number of letters exchanged between doctors between 2018 and 2020;
(h)a number of reports of radiological studies, including reports of MRIs of the lumbar spine of June 2019 and April 2020; a report of X-ray of the lumbar spine of June 2020; and a report of an isotope scan of the lumbar spine of June 2020.
VWA’s court book contained the following relevant material:
(a)a multi-disciplinary pain management assessment of Advanced Health Care, of August 2020;
(b)reports of Dr John Ford, pain physiotherapist at Advanced Health Care, of July and August 2020;
(c)a multi-disciplinary pain management review report of Advanced Health Care, of October 2020;
(d)reports of Mr Campbell Hogan, physiotherapist, of November and December 2020;
(e)follow up reports and plans of Network Pain Management Program, of March and July 2021;
(f)a report of Dr Phillip Haynes, occupational physician, of March 2024;
(g)extract of the notes of Advanced Health Care;
(h)extract of the notes of Chiropractic Solutions;
(i)extract of the notes of Thompson Road Clinic;
(j)extract of the notes of Platinum Physio.
VWA also produced extracts of a social media search of Ms Martin’s posts and photos, 36 pages in length (the social media material).

The evidence of Mr Delaney

In his first affidavit, Mr Delaney relevantly deposed as follows.
He was born on 8 February 1983 and was 40 years of age at the time of affirming his affidavit.
In approximately October 2016, Mr Delaney commenced casual employment with Dormakaba as a process worker involved in the manufacture of door openers. This job required repetitive, heavy, strenuous, and awkward physical labour in working on door openers.
In February 2017, Mr Delaney became a full-time employee of Dormakaba, and worked as a team leader in despatch between 2017 and 2019. Mr Delaney often experienced an ache in his back as a result of the strenuous nature of his job and frequently went home stiff and sore, though this usually went away by morning.
On a Friday in March/early April 2019, Mr Delaney felt a twinge of pain in his buttocks when lifting one of the door openers and by the end of the shift he had stiffness and soreness in his buttocks which increased that night. After reporting this issue to his employer, he was taken to see the company’s general practitioner, Dr Prakash.
Dr Prakash initially prescribed Valium, Panadol Osteo and Mobic, and recommended that he see a physiotherapist at the clinic, which he did so. He continued to consult Dr Prakash but more recently had not seen him often because it was his understanding that there was ‘not a great deal more’ that either he or specialist practitioners could do for him.
After undergoing an MRI in June 2019, Mr Delaney was referred to pain specialist Dr Du Toit, who recommended a series of procedures: a right L5-S1 facet joint injection and a right L3-4-5 medial branch block in August 2019; a right L3-4-5 medial branch nerve control block and sacroiliac joint injection in October 2019; a right L-3-4-5 medial branch control block in December 2019; and a lumbar radio frequency neurotomy in February 2020.
None of these procedures brought about significant or lasting relief and Mr Delaney was prescribed Endep medication to help with what Dr Du Toit described as ‘neuropathic pain’.
In April 2020, after undergoing another MRI, Dr Du Toit prescribed a topical cream containing ketamine, gabapentin, and amitriptyline in an attempt to desensitise Mr Delaney’s lower lumbar spine.
In May 2020, Mr Delaney was referred to Mr Res Rahim, an orthopaedic surgeon. Mr Rahim referred him for an x-ray of his lumbar spine and an isotope bone scan of the lumbar spine and pelvis with SPECT CT in June 2020. Following these scans and a further appointment with Mr Rahim, Mr Delaney understood that whilst surgery was a possibility, there was no guarantee of success.
In June 2020, Mr Delaney underwent a right L5 and S1 transforaminal epidural nerve root injection performed again by Dr Du Toit. This also failed to bring about a lasting reduction in his symptoms and he was prescribed Tramadol.
In the second half of 2020, Dr Du Toit recommended that Mr Delaney undertake a pain management program (which he did between approximately September and December of that year). He also consulted a pain specialist, Dr Ilonka Meyer, in late 2020 for a further opinion. Dr Meyer prescribed Gabapentin which did help his back pain a little.
Mr Delaney returned to work with Dormakaba on light duties in April 2019 and remained employed by that company until approximately October of that year.
After leaving his employment with Dormakaba for reasons unconnected with his injury, Mr Delaney went on a trip to Thailand in early 2020.
The COVID-19 pandemic and restrictions made it difficult for him to find new work, so he undertook an OH&S course at TAFE in 2020.
In 2021, he obtained an office job at the ATO for a brief period.
In November 2021, he commenced work in the stores department of the Alfred Hospital and in about January 2022 he moved into a clerical role at the hospital which he remained in until early April 2022.
In May 2022, Mr Delaney started work as a warehouse assistant for a French spirits distributor — although the work was initially manual, it did not require much heavy lifting.
Mr Delaney has undergone massage therapy, physiotherapy, chiropractic treatment, and myotherapy in an attempt to manage and reduce the pain in his back. He also applies ice to his lower back and buttocks and uses Voltaren cream and Deep Heat generally every day. He reserves use of prescription anti-inflammatory medication for the ‘most severe’ flare-ups due to ongoing concern about the potential effects on his stomach.
He suffers from some interference with his sleep, and he generally wakes up every morning with a stiff and sore back. It generally takes him quite some time to get going in the morning and he is never entirely pain-free. Prolonged sitting is difficult.
Mr Delaney sees a chiropractor, Mr Neil Gomez, approximately once a month and more frequently when he experiences a flare-up. He saw Dr Prakash ‘sporadically’ during 2022 and 2023 and had not seen a need to attend upon him very frequently since he came to the understanding that there is little more the medical profession can do for him. He no longer sees Dr Du Toit.
His affidavit concluded:
Despite what I consider to be a reasonable and justified reluctance to undergo further invasive treatment or regularly take very powerful medications, I remain in very considerable pain and continue to have virtually every facet of my life impaired, at least to some degree, generally every day.
Shortly prior to the hearing, Mr Delaney filed a supplementary affidavit, which updated his situation. He said that he continued to suffer low back pain every day, particularly first thing in the morning and that his back pain is aggravated by certain activities such as sitting, lying in bed, prolonged standing, and bending over. He continues to suffer from flare-ups every three to four months. He rarely sees Dr Prakash for any treatment of his back, as he no longer requires WorkCover certificates or prescription medication. He understands there is little doctors can do and the best way to manage his injury is through exercise and physical therapy.
Mr Delaney deposed that he was now a warehouse manager with the French spirits distributor. His work was mainly office-based, although there was some manual hands-on work when required. He can cope with his work, as he has a sit-stand desk. He varies his activities between sitting and standing, time in the office and the warehouse, and avoids heavy lifting.
In terms of rehabilitation, Mr Delaney goes to a Kieser gym two to three times a week and walks for 50 minutes every night. He takes over-the-counter Nuromol medication, and when he suffers from a flare-up, he uses Voltaren cream. He tries to avoid taking stronger medication due to concerns it would interfere with his work. He said that he continues to see his physiotherapist, Mr Edwards, every four weeks and his chiropractor or a sports masseuse when his back pain flares up.
Mr Delaney’s injury continues to impact his sleep.
Mr Delaney tries to avoid heavy lifting and bending, no longer rides a dirt bike, and can only go bike riding for 50 minutes or so without his back stiffening. He has not been able to return to hiking and cannot walk for longer than one hour.
Mr Delaney has, with his partner, continued to go on overseas holidays, but travelling on planes is difficult.
Mr Delaney said he is not as social as he used to be and that his back pain affects his mood — he is always in a bad mood, which affects his relationship with his partner. His intimate relations do not feel good because of his back pain.
In cross-examination, Mr Delaney confirmed that prolonged sitting was difficult and painful, and that by ‘prolonged sitting’, he meant sitting for more than 20 minutes to half an hour. He can engage in a long car drive but would generally break it up for an hour or so.
Mr Delaney said that all his recreational activities, all his domestic activities, and all his work activities were impaired by back pain. However, later in his evidence he agreed that he was able to shower and dress and could vacuum and assist in the kitchen. Any bending tasks could not be undertaken. He said that he avoids lifting heavy things around the house. His partner would carry the heavier groceries.
Mr Delaney said that his symptoms go up and down, and sometimes he has a flare-up, but his back had remained the same since 2019–2020. He had a flare-up in January 2024 and needed to see the chiropractor. The flare-ups occur every month or two. By ‘flare-up’, he means that his back is really stiff, and he walks ‘all funny’. A flare-up can last for anywhere between a week to five weeks. When the flare-ups occur, he takes anti-inflammatories and puts ice on his back.
Mr Delaney agreed that in August 2020, in a pain management assessment at Advanced Health Care, he said that he was minimally restricted in his social and recreational activities.
Mr Delaney said that in October 2020, he dug holes for about 40 tomato seedlings and that he obtained 10 or 15 bags of soil from Bunnings, which he would carry about five metres from the car to the backyard.
He agreed that at times he told his chiropractor that he had no pain or minimal pain for two weeks in July 2022, but that, despite the chiropractor treating him for flare-ups, the pain always returned.
As to treatment, Mr Delaney said that at the present time, he only takes over-the-counter medication. He has not seen his general practitioner, Dr Prakash, since July 2021. He has not seen Dr Du Toit or Dr Rahim since about 2020.
He agreed that in March 2021, as part of a gym program, he would lift eight kilograms of dumbbells in each hand and was attending the gym three to four times per week.
As to employment, Mr Delaney finished up with Dormakaba in October 2019, and then in early 2020 went to Thailand with Ms Martin for about 12 days. He said that he left his job due to cultural and mental health issues and denied that it was due to the need to have bilateral knee surgery (as apparently recorded in the physiotherapist’s notes).
Mr Delaney’s job as full-time employee of the ATO in 2021, involved working six hour shifts performing computer work and he was able to sit and stand. He subsequently had had a similar clerical job in the stores department of the Alfred Hospital, which involved standing and sitting.
In his job with the French spirits distributor, he was promoted to a supervisory role and is now a manager. He sits and stands, and moves around, and might walk up to five kilometres a day. His employment originally involved lifting boxes which weighed about six kilograms, and he might lift 100 boxes in a shift. It involved lots of lifting and moving of boxes, and forklift driving.
Now, as the warehouse manager, he basically organises logistics and spends most of his time working at a sit/stand desk but does not carry out manual duties. He supervises three people and rarely does forklift driving or manual handling. He breaks up his work between sitting and standing. The work he now carries out is completely different to that which he was carrying out at the time he suffered the back injury.
As to recreational activities, Mr Delaney said he used to go dirt bike riding but said that his back got sore after riding all day so he sold it. He still rides a 300cc Yamaha road motorbike on weekends. He also rides a bicycle but not as much as in the past.
The social media photographs and comments posted by Ms Martin were tendered and Mr Delaney was questioned about them. They showed the couple, or Mr Delaney alone or with mates, at a number of holiday destinations: Thailand on two occasions (2020 and 2023), Malaysia, Far North Queensland, Gippsland and Lorne.
Mr Delaney agreed that he had gone to Far North Queensland to see a property he and Ms Martin had purchased. He spent approximately two weeks in Thailand on each occasion and on the second visit took two boat trips and did a grade three hike for a bit over an hour. He said that on that trip, he struggled with the boat ride to the island on which they were staying. When he was on holidays, he would always take anti-inflammatories with him and would not go on long hikes.
In 2020, Mr Delaney underwent two bilateral knee arthroscopies and then intensive physiotherapy for six months. In re-examination, he said that neither knee was now a problem for him.

The evidence of Ms Martin

Ms Rachel Martin is Mr Delaney’s partner.
She said that Mr Delaney is ‘not a whinger’, and shuts down and will not communicate with her when he is in pain.
Mr Delaney struggles with chores around the house which involve bending and lifting. They used to go hiking and camping together but can no longer do long hikes. They rarely ride bikes together and are not as social as they used to be. Mr Delaney has difficulty sleeping, and his back pain is worse when in bed. It is stiff first thing in the morning, and he has difficulty sitting in the car for too long. He had trouble travelling when they went to Thailand on holiday.
Mr Delaney is very focused on treatment and goes to the gym, his physio or his chiropractor two to three times a week.

Medical evidence

Treating doctors

Dr Prakash, the treating general practitioner, diagnosed discogenic lumbar back pain stemming from the WorkCover injury and felt that Mr Delaney needed physiotherapy and hydrotherapy treatment. The injury produced episodic flare-ups, which impair his lifestyle and daily activities. His prognosis was guarded, and he should be trained for jobs with lesser physical demands. Dr Prakash referred Mr Delaney to the Metro Pain Group, where he was managed by Dr Du Toit.
In his report of May 2021, Dr Du Toit noted that he diagnosed a mixed pain presentation, nociceptive pain most likely coming from the L5-S1 disc and an overriding neuropathic pain causing widespread pain and clinical signs of allodynia and skin hypersensitivity. He performed epidural and radiofrequency neurotomy of the lumbar facet joints after two positive medial branch blocks — as set out at [21] above. He described Mr Delaney’s pain as being ‘chronic severe’, and that his lifestyle was severely restricted. He said that at the time of the report he had no capacity to carry out his pre-injury duties, and that his prognosis was guarded:
it is my opinion that his prognosis to return to pre-injury duties and capacity is poor. At best with successful treatment, he will be able to return to alternative duties at reduced capacity.
In my opinion, the long-term restrictions that will remain will be no pushing, pulling or lifting any loads more than 5kg and have the ability to break prolonged sitting and standing postures with regular walking intervals.
Dr Du Toit referred Mr Delaney to the pain management program at Advanced Health Care.

In a letter to Dr Prakash in August 2020 following a telehealth appointment, Dr Aston Wan of Advanced Health Care described the multidisciplinary pain management program that had been established for Mr Delaney. At that time, Mr Delaney was not working. Dr Wan diagnosed persistent low back pain after the work injury which, despite multiple spinal injections, remained persistent and problematic.
Mr Rahim, the orthopaedic surgeon whom Mr Delaney consulted for a second opinion in 2020, did not provide a report. However in a letter June 2020 he noted that Mr Delaney’s pain could be discogenic from a degenerative disc or from his facets; the other possible pain generators could be his bilateral sacroiliac joints. It does not appear that Mr Delaney saw Mr Rahim again.
Mr Edwards, the treating physiotherapist, noted that Mr Delaney presented with extreme weakness in the muscles of his lower back and gluteal muscles. In his report of March 2024, he said:
Since starting training at Kieser, Paul has dramatically improved his strength in his lower back. This has led to at least 60% increase to the strength of the muscles in the lower back. It has also led to a reduction in pain in terms of intensity, frequency and duration. I would suggest that due to the improvements that Paul has made in his short time with Kieser, he is likely to see many more benefits if he continues his strength training. He has only been doing it for a relatively short period of time and I think that there are many benefits that he can still obtain.
Mr Edwards noted that Mr Delaney had only recently been able to return to some of his social and recreational activities, and that he could manage the majority of activities of daily living but could not perform at the same level as prior to his injury.

Medicolegal reports

Mr Hazeem Akil, a neurosurgeon, examined Mr Delaney at the request of his lawyers in January 2024 and concluded that he suffered from an aggravation of lumbar spondylosis and that his work ‘is a significant contributing factor’. He regarded the prognosis as guarded, but opined that Mr Delaney was able to work full-time in his current work capacity.
Mr Akil noted that Mr Delaney’s sleep is significantly affected, and he has restrictions in terms of sitting and standing for longer than 30 minutes, which affects his ability to drive, go running or to get back to his hobby of riding motorbikes. He also has restrictions bending or repetitive bending, sitting, lifting heavier than 10 kg or repetitive lifting, pushing or pulling, and fine manipulation of his lumbar spine which he noted would continue for the foreseeable future. He thought that Mr Delaney would require long-term physiotherapy.
Dr Haynes, an occupational physician, examined Mr Delaney on behalf of VWA in March of 2024. He concluded that there was pre-existing degenerative change at L5-S1 and that Mr Delaney had suffered the aggravation of a disc protrusion as a result of heavy lifting resulting in lumbar L5-S1 disc disruption and protrusion. This was due to his employment and the prognosis was one of recurrent episodes of low back pain into the foreseeable future. This should be controllable by strengthening exercises, avoidance of aggravating activities, and occasional paracetamol or anti-inflammatory medication.

The judge’s reasons

Her Honour commenced by identifying the relevant issues for determination as —
(a)Was Mr Delaney a reliable witness?
(b)Has Mr Delaney disentangled the impairment consequences of his bilateral knee condition, his upper back condition and his psychological condition?
(c)What are the permanent impairment consequences of Mr Delaney’s compensable spine condition?
(d)Are the permanent impairment consequences of Mr Delaney’s compensable spine condition serious?[3]
[3]Reasons, [6].
Her Honour then set out the background to Mr Delaney’s claim, which is unnecessary to repeat here.
The judge then turned to her first question, namely, the reliability of Mr Delaney as a witness. She concluded that the following aspects of Mr Delaney’s evidence were unsatisfactory —
(a)he gave inconsistent evidence regarding his ability to lift items over ten kilograms;
(b)he exaggerated the number of times he had required general practitioner consultations in respect of his low back condition;
(c)he exaggerated the length of time he suffered from flare-ups of back pain;
(d)he exaggerated the amount of painkilling medication he took; and
(e)the statement that he was unable to return to hiking (contained in an affidavit) was untrue.[4]
[4]Reasons, [35].
In addition to these specific instances, the judge concluded that Mr Delaney was ‘somewhat injury focused’ and ‘that he had a tendency to exaggerate or overstate his pain and restrictions’. This, her Honour said, led her to carefully assess his claimed impairment consequences in light of the whole of the evidence and to look for external corroboration of those consequences.[5]
[5]Reasons, [36].
Her Honour then considered the second question, whether, to use her Honour’s words, Mr Delaney had ‘disentangled the impairment consequences’ of other, unrelated knee, upper back and psychological conditions. Her Honour ultimately concluded that the presence of these conditions did not prevent her from identifying the consequences of the lower back injury as opposed to those from unrelated conditions.[6]
[6]Reasons, [44].
The judge then turned to the third question, the analysis of the permanent impairment consequences of the back injury. She set out parts of his affidavit which have, in their material parts, been set out above.[7]
[7]Reasons, [45]–[46].
The judge noted that the affidavit sworn by Ms Martin, Mr Delaney’s partner, was generally supportive of Mr Delaney’s claimed impairment consequences.[8]
[8]Reasons, [48].
Under the heading ‘Social Media Material’, her Honour noted the following (setting out the detail):
(a)Between 2020 and 2024 Mr Delaney had been on a number of holiday trips both within Victoria, interstate and overseas, as disclosed in his cross-examination; and
(b)Mr Delaney attended two concerts, one at the Sidney Myer Music Bowl in April 2022 and the other at the MCG in February 2024.[9]
[9]Reasons, [50].
Her Honour then set out the radiological evidence and the opinions of the treating doctors, Dr Prakash (general practitioner), Mr Rahim (spine and orthopaedic surgeon), Dr Du Toit (pain physician) and Mr Wan (pain physician).[10] Her Honour also noted the various extracts from the clinical records of his pain management program (Advance Health Care), his chiropractic practice (Chiropractic Solutions) and his physiotherapist practice (Platinum Physio).[11] Her Honour considered the report of physiotherapist, Mr Edwards.[12]
[10]Reasons, [52]–[71].
[11]Reasons, [72]–[77].
[12]Reasons, [78]–[79].
Next, her Honour recorded the opinions of Mr Dirk Van Bevel, orthopaedic surgeon, whom Mr Delaney had consulted regarding his knee pain, Dr Akil, a consultant neurologist engaged by Mr Delaney’s lawyers, and Dr Haynes, an occupational physician engaged by the VWA’s lawyers.[13]
[13]Reasons, [80]–[90].
Her Honour then set out her findings on the third question, the level of impairment. She accepted that Mr Delaney ‘has an ongoing aggravation injury to his lumbar spine productive of some impairment consequences’.[14] She accepted the diagnosis of Dr Akil over that of Dr Haynes, given his specialty.[15] Dr Akil described the injury ‘as an aggravation of lumbar spondylosis’.[16]
[14]Reasons, [91].
[15]Reasons, [92].
[16]Reasons, [92].
Her Honour observed that both Dr Haynes and Dr Akil found limitation in Mr Delaney’s ability to bend but there was a significant difference in their examination as to straight leg raising. The judge concluded that this was because Mr Delaney, at the time of Dr Akil’s examination, was experiencing a flare-up of his back.[17]
[17]Reasons, [93].
The judge then noted that ‘most of the evidence from Mr Delaney’s treating practitioners is rather dated.’ Dr Du Toit, who thought the outlook was guarded, had not seen him since May 2021.
Her Honour also noted that Mr Delaney had completed a pain management program and obtained and retained suitable full-time employment since that time.[18]
[18]Reasons, [94].
The judge then turned to the report of the physiotherapist, Mr Edwards, who has supervised Mr Delaney’s Kieser training since September 2023, and said that it —
supports the finding that Mr Delaney has experienced significant improvement in his lower back condition since September 2023 and is likely to continue to improve. Also that Mr Delaney can perform most activities of daily living, but has some pain performing some of his social and recreational activities. I accept that evidence.[19]
[19]Reasons, [95].
Her Honour then said ‘that Mr Delaney’s low back condition is permanent in the requisite sense, in that it is likely to continue into the foreseeable future’.[20]
[20]Reasons, [96].
Then, in analysing the individual aspects of his impairment, her Honour accepted that Mr Delaney experienced some level of pain each day,[21] and took Nuromol, an over-the-counter analgesic, a couple of times a week and Valium on occasion when he travels by plane.[22]
[21]Reasons, [97].
[22]Reasons, [98].
Her Honour accepted that Mr Delaney experiences ‘some level of pain each day’. The pain is not constant pain. His evidence was that his back pain flares up unpredictably every few months and can rise ‘up to an eight … probably above an eight’ on a scale of one to ten, and that he uses Voltaren cream, takes Voltaren, uses ice and attends his chiropractor during flare-ups.[23] However, her Honour noted that he continued to work full-time as a warehouse manager and has not needed to take time off when experiencing flare-ups.[24] She found that what Mr Delaney does about the pain he experiences when he has a flare-up ‘is a better indicator of its severity than his self-assessment of it as being at a level of eight out of ten’.[25]
[23]Reasons, [99], [101].
[24]Reasons, [100].
[25]Reasons, [101].
Her Honour noted that Mr Delaney’s current treatment regime included Kieser training two to three times per week and intermittent massage and chiropractic treatment, and that he had not attended a GP for treatment of his low back for more than two and a half years and there was no other specialist referral or treatment planned.[26]
[26]Reasons, [31], [102].
Her Honour accepted that his sleep was disturbed most nights and that he generally only slept for about six hours a night and would wake up feeling stiff.[27]
[27]Reasons, [103].
In terms of functional tolerances and activity, the judge considered that Mr Delaney retained the ability to walk four or five kilometres most days. She accepted his evidence that he could not undertake prolonged sitting for more than half an hour, and while he could sit in a car or plane for an hour he would need to get up and walk around otherwise his back become stiff.[28] The judge also noted that he was not restricted in daily living activities (showering, dressing, or other personal care activities) and was able to perform most domestic activities, but that he struggled with activities that involved bending (such as stacking the dishwasher, using the washing machine and hanging clothes on the washing line).[29]
[28]Reasons, [104]–[105].
[29]Reasons, [106], [108].
The judge accepted that there was some impairment of his enjoyment of intimate relations with his partner.[30]
[30]Reasons, [107].
In relation to recreational activities, the judge noted Mr Delaney’s evidence that he could no longer ride a dirt bike and sold it in early 2020, and accepted that he is now restricted in his ability to ride a dirt bike though noted that he had since bought a motorbike which he rides up to an hour each week.[31] Her Honour also noted his evidence that he was no longer able to go on camping trips with his partner three or four times a year, however the judge noted that he did not identify which aspects of camping were made difficult by his condition.[32] The judge found that he could still go hiking distances of up to five kilometres, but no longer, and noted that he continues to undertake cycling for an hour at a time, up to six days a week.[33]
[31]Reasons, [109]–[110].
[32]Reasons, [111].
[33]Reasons, [112]–[113].
Her Honour observed that ‘when considering the importance to Mr Delaney of the various recreational activities, none of them could be categorised as a “passion”’.[34] Further, she said that she was fortified in that view by the limited frequency with which he had undertaken hiking, dirt bike riding and camping prior to his injury, and that those activities were not specifically mentioned in his first affidavit despite it being 20 pages.[35]
[34]Reasons, [114].
[35]Reasons, [114].
In relation to work, her Honour noted that Mr Delaney had had several different full-time jobs since leaving his role with Dormakaba, a number of which involved manual handling. She ultimately concluded that Mr Delaney was unfit for work that involved repetitive heavy lifting and on that basis was unfit for his pre-injury duties.[36] Her Honour found that he remained capable of working full-time in suitable work and noted he is performing supervisory work in a warehouse environment, having performed warehouse work with supervisory responsibilities prior to his injuries.[37]
[36]Reasons, [115]–[116].
[37]Reasons, [117].
Then after stating she took into account both TTV SMS Pty Ltd v Reading[38] and Ellis Management Services Pty Ltd v Taylor,[39] in respect of the fourth and determinative question as to whether the impairment was serious, her Honour said this:[40]
120The fact that Mr Delaney is able to work full time in suitable employment does not preclude a finding that he satisfies the statutory threshold.[41]
121I bear in mind that Mr Delaney suffered his injury when aged thirty-six and will likely continue to experience symptoms for many years to come.[42]
122I am required to consider what has been lost as well as what has been retained.
123Mr Delaney suffers from variable but not constant pain, requiring over-the-counter medication, intermittent chiropractic treatment and massages. Mr Delaney retains the capacity to work full time in suitable employment. He can undertake all aspects of his personal care. He is able to perform lighter domestic and gardening activities. He can still drive and has been able to travel. There has been a mild impact on his recreational and social activities.
Conclusion
124In making the value judgment required of me, I find that whilst the impairment consequences of Mr Delaney’s spinal condition could be described as significant or marked to him, they do not reach the threshold of “at least very considerable” when compared with the range of possible impairments including those which do not come before the Court.
125Mr Delaney’s application is therefore dismissed.
[38]Quoting from [2020] VSCA 203, [31].
[39]Quoting from [2013] VSCA 326, [35].
[40]Reasons, [120]–[125] (citations in original) (emphasis added).
[41]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1.
[42]Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181, [43]–[44].

Grounds of appeal

There are two grounds of appeal:
1.The trial Judge erred in the application of Barwon Spinners Pty Ltd v Pololak (2005) 14 VR 622 to the whole of the evidence adduced at trial, and ought to have determined that the Applicant had established “serious injury” within the meaning of s.325(1) and (2) of the Workplace Injury Rehabilitation and Compensation Act 2013.
2.The reasons for judgment do not disclose an adequate process of reasoning to demonstrate why upon the proper application of Barwon Spinners Pty Ltd v Pololak (2005) 14 VR 622 to the whole of the evidence the Applicant’s application was refused.

Consideration

The standard of appellate review has been set out in several recent decisions of this Court.[43]
[43]Connolly v Transport Accident Commission [2024] VSCA 20, [32]–[40] (Beach, Niall JJA and J Forrest AJA); Victorian WorkCover Authority v Perumal [2024] VSCA 107, [100] (Beach, Walker JJA and O’Meara AJA).
Last year in Juma v Kone Elevators Pty Ltd, this Court said the following (which we adopt):[44]
Following this Court’s decisions in Connelly v Transport Accident Commission[45] and Victorian WorkCover Authority v Perumal, on an appeal from a serious injury application brought pursuant to the Act, the applicable standard of review is the ‘correctness standard’ as explained by the High Court in Warren v Coombes. In such a case, the duty of the appellate court ‘is to decide the case — the facts as well as the law — for itself’.
However, even on a review conducted on the correctness standard, where a finding is likely to have been affected by impressions about the credibility and reliability of witnesses formed by the judge as a result of seeing and hearing them give their evidence, that finding should not be interfered with unless it is ‘glaringly improbable’ or ‘contrary to compelling inferences’. In respect of other findings, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts’.

Ground 1 – The judge should have found that Mr Delaney had established that he sustained a serious injury impairment

[44][2024] VSCA 217, [54]–[55].

[45][2024] VSCA 20, [32]–[40] (Beach, Niall JJA and J Forrest AJA).

Mr Delaney identifies five alleged errors on the part of the judge:
(a)that the consequences as found by the judge were at least ‘very considerable’ and her Honour erred in her conclusion to the contrary;
(b)the judge’s findings in respect of Mr Delaney’s treatment;
(c)the judge’s finding that activities previously enjoyed by Mr Delaney could not be categorised as a ‘passion’;
(d)the judge’s findings concerning Mr Delaney’s credit; and
(e)that the judge failed to take proper account of Mr Delaney’s asserted stoicism.

Was the judge correct in concluding that Mr Delaney had not satisfied the statutory test: that the consequences were ‘at least very considerable’?

The thrust of Mr Delaney’s submission was simple. Her Honour’s findings as to his current level of impairment, the medical opinions as to the nature and permanency of the injury, and the range of medical treatment provided to Mr Delaney (particularly in 2020 and 2021) should be accepted. This meant that, contrary to her Honour’s conclusion, the impairment consequences should be regarded as ‘at least very considerable’ and therefore the statutory test was satisfied.
As set out above, the judge accepted that Mr Delaney had sustained a lower back injury and that a number of consequences flowed from it, including the following:
(a)the inability to do work that involves repetitive heavy lifting;
(b)ongoing restrictions in his social and domestic activities involving bending and lifting;
(c)that he suffers from variable but not constant pain, requiring over-the-counter medication, the use of ice, and intermittent chiropractic treatment and massages;
(d)the inability to engage (or engage fully) in several of his previous recreational activities;
(e)an adverse impact on his sleep; and
(f)an adverse impact on his enjoyment of intimate relations with his partner.
However, the judge also found that Mr Delaney had retained a significant capacity to perform a large number of activities — which tended against a finding of serious injury:
(a)he experiences some variable level of pain each day however does not have constant pain;[46]
(b)he has retained a capacity for full-time work;[47]
(c)he does not take time off work when experiencing a flare-up of back pain;[48]
(d)he is not restricted in his ability to shower, dress, or perform other personal care activities;[49]
(e)he has ‘some difficulty’ with bending activities but is otherwise able to perform most domestic chores;[50]
(f)he has retained the ability to walk four to five kilometres most days;[51]
(g)he rides a motorbike up to an hour each week;[52]
(h)he can hike up to five kilometres;[53] and
(i)he can still drive reasonable distances and is able to travel interstate and overseas.[54]
[46]Reasons, [97], [123].
[47]Reasons, [100].
[48]Reasons, [100].
[49]Reasons, [106].
[50]Reasons, [108].
[51]Reasons, [105].
[52]Reasons, [110].
[53]Reasons, [112].
[54]Reasons, [50], [123].

In addition, there was the following evidence:
(a)When Mr Delaney started with his current employer as a warehouse assistant, his duties included picking and packing bottles of alcohol, packing orders, unloading trucks on a forklift, data entry, stock taking and stock checking. He would lift up to 100 six kilogram boxes during a shift. The role sometimes involved repetitive lifting. He had been promoted twice and held the position of warehouse manager at the time of hearing.
(b)Mr Delaney said that when properly warmed up he had little or sometimes no pain. Mr Delaney’s gait is normal.
(c)Mr Delaney said that he walked 7,000 steps at work most days, but sometimes up to 15,000 steps. He walks four to five kilometres at night.
(d)Mr Delaney was able to prepare his small vegetable patch. This involved lifting 10–15 kg bags of soil, carrying them from his car to the backyard, and emptying the bags from a height of 30 cm above ground. He could dig 40 holes for vegetables using a hand spade.
(e)Mr Delaney can cycle six days a week. He cycles 20 kilometres at a time at roughly 20 km/hr.
(f)Mr Delaney can attend gym three to four times per week. He can lift 20 kg (two 10 kg dumb bells) in an overhead press. At Kieser training, he pushes 200 pound weights using a leg press machine, and 130 pounds using the back extension machine.
(g)Mr Delaney can travel on boats, go fishing, and engage in snorkelling.
It is undoubted that Mr Delaney suffered an injury of significance to his lower back. His treatment regime in 2020 and 2021 and the opinions of his treating doctors at that time amply demonstrate the point. The recent report provided by consultant neurosurgeon, Mr Akil, commissioned by Mr Delaney’s lawyers, confirms that Mr Delaney continues to suffer from an aggravation of lumbar spondylosis and that this is the cause of his current symptoms.
The judge accepted this diagnosis and concluded that the consequences were significant and marked. What her Honour did not accept was that the level of impairment produced by the acknowledged injury was as significant as that contended for by Mr Delaney and his lawyers — it did not clear the ‘very considerable’ hurdle.[55]
[55]Reasons, [124].
Whilst the judge accepted that Mr Delaney suffered from a variety of consequences caused by the injury, these had to be balanced against the things Mr Delaney could do which are set out at [105]–[106] above. This combined with a lack of information from the treating doctors as to Mr Delaney’s current condition and prognosis were clearly relevant matters for the judge to consider.
Undoubtedly her Honour was also influenced by the social media material which demonstrated on its face that Mr Delaney was engaging (at least at times) in a full and unrestricted lifestyle whilst on vacation. Admittedly, considerable care has to be taken when analysing such material, as it is simply a snapshot of a person at a particular time and does not perforce contradict evidence of what they may and may not be able to do on a daily basis. This is all the more so when, in the context of a social media post, there is almost a universal necessity when on vacation to look happy and upbeat — whatever the true situation.
Even allowing for this note of caution, the thrust of Mr Delaney’s first affidavit, encapsulated in the paragraph set out at [36] above, does not sit comfortably with the social media material. For instance, Mr Delaney had sworn that he could no longer go hiking, but the social media material demonstrated that he could — as he conceded. This, with the other anomalies identified by her Honour and set out at [75] above, led the judge to conclude that Mr Delaney’s evidence as to his level of impairment had to be taken with a grain of salt. She was entitled to do so.
The judge had the opportunity to observe Mr Delaney giving evidence and assess his responses to lengthy cross-examination concerning his ability to perform occupational, domestic and recreational tasks and activities. On occasions in serious injury applications, what the judge makes of a claimant’s responses and presentation in court will be of significance in determining the outcome. The judge is entitled to use that material in assessing the reliability and/or credibility of the witness. Provided the judge explains how those matters have been considered and their part in the overall analysis of the evidence (as her Honour did here), then this is an appropriate manner in which to determine acceptance or otherwise of a witness’ evidence and whether the statutory test has been satisfied. As far as we can tell, there is nothing in the judge’s conclusion as to Mr Delaney’s unreliability which is either glaringly improbable or contrary to compelling inferences.[56]
[56]See [101] above.
Mr Delaney must establish error, and we can detect none in her Honour’s conclusion that on her findings (which were open to the judge and identified by her) he had not established that the consequences of his lumbar spine impairment were ‘at least very considerable’.

The judge’s findings in relation to Mr Delaney’s level of treatment

Mr Delaney argued that her Honour erred in relation to her findings regarding his level of treatment and had failed to take into account his history of treatment and the manner in which he now sought to alleviate his symptoms — by attending a gym as he believed there was little the medical profession could do for him.
There is no merit in this argument. The judge specifically referred to the reports of each of the treating doctors, and particularly noted the various procedures carried out by Dr Du Toit in 2020.
The suggestion that the judge was, by her reference to Mr Delaney’s current treatment regime, dismissive of it, is without foundation. Her Honour, at [102] of the Reasons, was simply recording the current state of Mr Delaney’s treatment regime — and she did so accurately.
Moreover, the judge did not determine, as Mr Delaney contended, that he did not have a high level of treatment because his pain was not significant. To the contrary, the judge accepted that he had adopted an alternative means of treatment (the gym exercises) and found that his level of impairment was significant, regardless of the treatment regime.

The judge’s finding that Mr Delaney’s activities could not be described as a ‘passion’

This complaint refers to a part of the Reasons described at [95]–[96] above. Mr Delaney argues that this ‘finding’ as to his recreational activities was not justified on the evidence.
There is nothing in this point. Her Honour was simply making the accurate observation as to the relative importance of these activities in Mr Delaney’s life. Her Honour’s comment was clearly correct. Even if there was some error, the point goes nowhere. The reality is that, apart from the dirt bike riding, Mr Delaney has been able to continue with his recreational activities, albeit on a more restricted basis.

The judge’s credit finding

Mr Delaney contends that his credit was not squarely put in issue by counsel for VWA and that the judge’s findings as to his credit set out at [75]–[76] above were not foreshadowed.
At the commencement of the trial, counsel for VWA made it apparent that Mr Delaney’s reliability and/or credibility was in issue by stating:
COUNSEL: The final issue is credit.
During the course of the trial, there was a significant cross-examination of Mr Delaney on the basis of what he said he could and could not do — and challenges mounted to those assertions. This was particularly so in regard to the social media material, which covered some 10 pages of cross-examination as to his various holidays, excursions and trips.
In closing submissions, both counsel for VWA and Mr Delaney addressed the issue of credit. Counsel for VWA described Mr Delaney as ‘an inaccurate historian’; that he gave ‘unreliable evidence’; and that he ‘tried to downplay his and his wife’s social life’.
In reply, counsel for Mr Delaney said as follows:
The issue of the plaintiff’s credit, we say also is a furphy. The plaintiff, in our submission, was a witness of credit.
Counsel for Mr Delaney who appeared both at the trial and on this application was patently aware that Mr Delaney’s credit was in issue. He sat through the cross-examination on the social media material and the puttage of many out of court statements which on their face contradicted Mr Delaney’s account of his limited ability to carry out tasks and pursue social activities. He then made submissions which addressed the issue of his client’s credit.
This point is also without merit.

Failure to take into account Mr Delaney’s stoicism?

Contrary to the assertion by Mr Delaney in his written case, there was no obligation on the judge to take into account Mr Delaney’s asserted stoicism.
The authority relied upon for the proposition is that of an observation by Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):
Secondly, I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.[57]
[57][2008] VSCA 260, [3].
As is apparent, this was a comment of Nettle JA as to the presentation of the plaintiff in that case. What it conveys, with respect to his Honour, is plain common sense — that the absence of medical treatment does not, of itself or when taken in conjunction with other considerations, mean that a plaintiff has failed to satisfy the serious injury test. In this case, the judge, it is clear, was well aware of this. She noted Mr Delaney’s current level of treatment (namely, the gym exercises and seeing the chiropractor for flare-ups), but did not use that fact in determining whether Mr Delaney satisfied the statutory test. Rather, as we would have hoped is now obvious, she examined the consequences for Mr Delaney and how they affected his daily activities (employment, social and recreational). This had nothing to do with stoicism but rather was an objective analysis of Mr Delaney’s capacity to get on with his life.
Finally, if stoicism was relevant, it was clear that her Honour did not regard Mr Delaney as falling within this epithet. To the contrary, she thought that he was ‘somewhat injury focused’ and that he had a tendency to exaggerate or overstate his pain and restrictions.[58] This conclusion, as we have explained above, was entirely open to her Honour on the evidence and her observations of Mr Delaney as a witness.
[58]See [76] above.

Ground 2 – Inadequacy of reasons

This Court has referred recently to this ground as being, sometimes ‘the refuge of the desperate’ — to quote Gillard J.[59] This is yet another case in which this ground is maintained without any hope of success.
[59]George v Nisselle [2005] VSC 177, [56]. Cited with approval in Kesper v Victorian WorkCover Authority [2024] VSCA 237, [105] (Orr JA and J Forrest AJA).
There seems to be an inability on the part of counsel to distinguish between adequacy of reasons as opposed to findings with which counsel may wish to quarrel. This case exemplifies that. The Reasons spell out to all and sundry (judges, counsel, solicitors and laypersons) why the judge refused Mr Delaney’s application. Indeed, they form the basis for ground one of this application.
There is no mystery, nor doubt about why the judge concluded that Mr Delaney failed. He did so because the judge did not accept his evidence as to the extent of the consequences of the lower back impairment and determined that, on her findings, Mr Delaney had not reached the statutory threshold.
This ground should never have been raised and necessarily fails.

Conclusion and orders

Neither of the proposed grounds of appeal are made out. Leave to appeal should be refused.

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[2025] VSCA 59

4 April 2025