Gregory v Victorian WorkCover Authority
[2025] VCC 1618
•24 November 2025
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-00638
| MARK ANDREW GREGORY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 17 June 2025 | |
DATE OF JUDGMENT: | 24 November 2025 | |
CASE MAY BE CITED AS: | Gregory v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1618 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering – credibility
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325(1), s335
Cases Cited: Connelly v Transport Accident Commission (2024) 73 VR 257; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Sabo v George Weston Foods [2009] VSCA 242; Johns v Oaktech Pty Ltd [2020] VSCA 10; Humphries and Anor v Poljak [1992] 2 VR 129; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Transport Accident Commission v Zepic [2013] VSCA 232; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Haidar v Transport Accident Commission [2016] VSCA 182; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave is granted to the plaintiff to commence proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Ms P Prossor | Fortitude Legal |
| For the Defendant | Mr R Kumar with Ms J E Clark | Wisewould Mahony |
Table of Contents
Introduction
Background
Employment
Medical history
Treating practitioners’ reports
The Plaintiff’s treating doctors
Dr Yang Hwa Ng, pain physician
Dr Matthew Hargreaves, general practitioner
Matt Tan, physiotherapist
Medico-legal reports
Mr Russell Miller, orthopaedic surgeon
Mr Mohammed Awad, neurosurgeon
The Defendant’s medico-legal reports
Mr Graeme Brown, orthopaedic surgeon
Dr Umberto Boffa, occupational and environmental physician
Dr Graeme Doig, orthopaedic surgeon
Professor Peter Teddy, neurosurgeon
Parties’ submissions
Credit
What injuries does the Plaintiff have?
Is the Plaintiff’s lower back injury a compensable injury?
Impairment consequences
Pain
Medication and medical treatment
Mobility
Activities of daily living
Golf
Driving
Grandchildren
Social activities
Sleep
Analysis
Conclusion
HER HONOUR:
Introduction
1The plaintiff is a seventy-three-year-old man who lives in Geelong.
2From 1993 to 2021, the plaintiff worked as a labourer with Godfrey Hirst, a carpet manufacturing business.[1] The plaintiff’s job was physically demanding. His duties involved unpacking, repetitively loading and splicing up to 5,000 bobbins of wool per week, each weighing 6 to 8 kilograms. The plaintiff’s job required repetitive lifting, carrying, bending, twisting, crouching, pushing and pulling.
[1] During this time, he also worked as a “leading hand”
3By Originating Motion dated 8 February 2024, the plaintiff sought leave, pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), to commence common law proceedings claiming damages in respect of injuries he alleged he sustained in the course of his employment.
4By Particulars of Injury dated 24 June 2024, the plaintiff claimed to have suffered: injury and impairment to the lumbar spine; injury and impairment to the right upper limb; injury and impairment of the left hip, and a psychiatric condition.
5By the time the hearing of the serious injury application commenced, the plaintiff relied only on an injury to, and impairment of, the function of his lumbar spine.
6There was no dispute that the plaintiff had in fact sustained a work-related back injury. The issue in dispute was whether the plaintiff’s lower back injury was a “serious injury” within the meaning of sub-paragraph (a) of the definition of “serious injury” in s325(1) of the Act. Namely, whether there was a permanent serious impairment and loss of function of the plaintiff’s spine and whether the impairment consequences of the plaintiff’s lumbar spine injury were “serious” when judged by comparison with other cases in the range of possible impairments or losses of a body function. That is, whether the impairment consequences could be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[2]
[2] Connelly v Transport Accident Commission (2024) 73 VR 257 at paragraph [45]
7The proceeding was conducted in the usual manner. The parties tendered affidavits, medical reports and other documents from their respective court books and supplementary court books. The plaintiff was cross-examined and the parties made submissions about whether the plaintiff had sustained a “serious injury”.
8I have considered all the evidence together with the parties’ submissions. I shall refer to that material to the extent necessary to explain my reasons for decision.
9In assessing the seriousness of the claimed impairment consequences, I have considered both the effects of the impairment and those aspects of the affected body function which remain unaffected.[3] I have also taken into account the broad range of impairments and impairment consequences, not just those that come before the courts.
[3] TTB SMS Pty Ltd v Reading [2020] VSCA 203 at paragraph [30]
10The plaintiff bears the onus of establishing that the impairment consequences from the claimed lumbar spine injury are “serious”.
11For the reasons that follow, I am satisfied that the impairment consequences from the claimed lumbar spine injury constitute a “serious injury”.
Background
12Mr Gregory is left-hand dominant.
13He lives alone.
14He has two adult children and four grandchildren.
Employment
15After completing four years of secondary school at Scottsdale High School in Tasmania, Mr Gregory worked in a range of jobs, including as a postal clerk, bar steward, in hospitality and in a carpet factory.
16Around 1993, the carpet factory went into receivership and was acquired by Godfrey Hirst.
17As indicated, from June 1993, the plaintiff was employed by Godfrey Hirst as a labourer and later, as a leading hand on a full-time basis. The plaintiff generally worked from 4.00pm to midnight.
18Throughout the course of employment, the plaintiff reported episodes of back, shoulder and hip pain, for which he occasionally consulted his general practitioner. The plaintiff said he “tried to get on with things”, but over time his back pain symptoms worsened.
19In 2020, a pallet trolley ran over the great toe of the plaintiff’s right foot while he was at work. The great toe of the plaintiff’s right foot was fractured, requiring open reduction and internal fixation surgery. The plaintiff required further surgery after x-rays taken in 2020 demonstrated the fixation plate was broken. The second surgery was done on 15 December 2020. The plaintiff said he ended up having three surgeries. His recovery was complicated by the development of a staph infection and subsequent clostridium difficile. He was off work for about six months.
20The plaintiff attempted to continue to work full time after coming back from the surgery, but he said as time went on, he struggled with the pain in his lower back, left hip and right shoulder. He decided to retire in late 2021 because he did not feel he could cope with the persistent pain he was experiencing.
Medical history
21The plaintiff had a lengthy medical history.
22On 19 December 2009, the plaintiff was referred to Dr John Stekelenburg, general practitioner, at Health e Medical Centre for an x-ray of the lumber spine. This revealed:
“Findings:
Normal lumbar vertebral alignment has been demonstrated. There is intervertebral disc narrowing at the L3/4 to L5/S1 levels inclusive, with associated disco-vertebral and facet joint spondylosis. Mild disco-vertebral spondylosis is also demonstrated at the thoraco-lumbar junction. There is no discrete osseous or paravertebral soft tissue lesion present.”
23The plaintiff underwent a cervical spine scan reported on 6 April 2010 and a CT scan of the cervical spine reported on 7 April 2010.
24In April 2010, the plaintiff also attended a general practitioner at MedicAid Family Medical in relation to left hip pain. He was referred for an x-ray of his pelvis and left hip which was reported on 1 July 2010. The clinical indications from the x‑ray were recent low back and left anterior groin pain. There was a mild reduction in movement. The anterior over the left hip was tender. The x-ray found that both hip joints appeared to be within normal limits. The joint spaces were well preserved, and the femoral heads were intact. There was no gross abnormality in the sacroiliac joints or the symphysis pubis. The conclusion was a normal appearance in both hips.
25On 16 July 2010, the plaintiff attended Mr Peter Callan, a plastic surgeon, regarding numbness in his fingers and to consider options for facial rejuvenation. Mr Callan arranged for the plaintiff to have bilateral carpal tunnel release surgery on 19 August 2010.
26Between 2010 and 2012, the plaintiff continued to experience lower back and left elbow pain and attended his general practitioner, Dr Carl Grace. Dr Grace referred the plaintiff for a CT scan of his lumbosacral spine and an ultrasound of his left elbow.
27The CT scan of the plaintiff’s lumbosacral spine was taken on 23 April 2012. The report of the CT scan identified the plaintiff’s history of chronic lower back pain and queried left elbow tendonitis. The CT scan of the lumbosacral spine showed minor posterior disc bulges at L3-4 and L4-5 with contact of the exiting L4 nerve root and low-grade contact of the origin of the left L5 nerve root. Bridging osteophytes were seen to involve the anterior aspects of the sacroiliac joints and there was early facet joint arthritis. A steroid injection was recommended.
28The ultrasound of the plaintiff’s left elbow indicated mild tendinopathy but no tendon tear or elbow joint effusion.
29The plaintiff later received cortisone injections to both his lower back and elbow.
30On 27 April 2012, Dr Goodear performed a CT-guided injection into the plaintiff’s lumbosacral spine at the left L4-5 epidural space. The plaintiff continued to experience back pain. The plaintiff said he was prescribed medication to assist with the pain, which he took intermittently.
31In May 2014, the plaintiff aggravated his lower back after loading bobbins at work. He attended Dr Grace, who again referred the plaintiff for a CT scan of his lumbar spine.
32The CT scan of the plaintiff’s lumbar spine was taken on 23 May 2014. The CT scan revealed a minor disc bulge of the L4-5 disc, slightly more marked on the left. The appearances had not altered since the previous CT scan which had been taken on 23 April 2012. Because of the pain experienced by the plaintiff, the plaintiff’s general practitioner prescribed the plaintiff with Panadeine Forte and Diazepam. The plaintiff said those medications did not help his pain. His general practitioner then prescribed Tramal and Endone. The plaintiff said he was off work for about three weeks, but the flare-up of pain lasted about four weeks. Following that flare-up of pain, the plaintiff said he continued to suffer from more constant aching in his back during and after work.
33In the middle of 2016, the plaintiff experienced another flare-up of lower back pain. The plaintiff also had worsening pain in his left hip. The plaintiff attended Dr Farouq Salman, general practitioner, at MedicAid. Dr Salman referred the plaintiff for x-rays of his left hip and lumbosacral spine. The x-rays performed on 13 July 2016 found:
“CLINICAL NOTES:
Ongoing back pain. ? OA.
REPORT:
There is minor curvature of the lumbar spine to the right centred over L2‑L3. Minor osteophytic lipping through the concavity of the lumbar spine. Normal lumbar lordosis with anterior osteophytic lipping in the lower thoracic upper lumbar spine and minor loss of intervertebral disc height at T12-L1, and again at L3-L4. No significant malalignment, or pars defect. No significant loss of vertebral body height. No transitional vertebra.
PELVIS AND LEFT HIP:
Both hips are enlocated. No significant loss of joint space within either hip. Minor right sacroiliac degenerative change. The pubic symphysis is unremarkable.”
34Dr Salman prescribed the plaintiff “Endep, Mobic and Diazepam” and directed him to undergo physiotherapy.
35The plaintiff’s pain improved after doing physiotherapy for a few months but flared up again in 2017 whilst the plaintiff was golfing.
36As already outlined, in 2020, a pallet trolley ran over the great toe of the plaintiff’s right foot while he was at work. The plaintiff underwent open reduction and internal fixation surgery. The plaintiff said he had previously also undergone surgery for a bunion repair and an umbilical hernia repair. The plaintiff’s recovery from the open reduction and internal fixation surgery was complicated by the development of a staph infection. Unfortunately, upon returning to work in early 2021, the plaintiff developed an immediate infection. Treatment of the infection required a wash-out and application of a VAC dressing in March 2021, followed by implant metalware removal in July 2021. As a result of being on prolonged antibiotics, the plaintiff suffered the additional complication of a clostridium difficile infection, which required additional medical attention.
37Between 2020 and 2021, whilst recovering at home from the surgeries, the plaintiff developed right shoulder pain, and worsening left hip pain.
38The plaintiff attended Dr Grace regarding the issues with his right shoulder six times between 10 August 2021 and 9 May 2022.
39Dr Grace initially referred the plaintiff for an ultrasound. The clinical indication for the ultrasound was pain in the right rotator cuff. The ultrasound was completed on 17 August 2021. The ultrasound found the plaintiff had subacromial bursal thickening and fluid, in keeping with bursitis. There was no rotator cuff tear. The plaintiff’s right shoulder was treated with cortisone injections on 1 September 2021 and again on 12 November 2021.
40The plaintiff formally retired from work in October 2021. In his affidavit sworn 4 September 2023, the plaintiff stated he decided to retire as he was unable to cope with the persistent pain he was experiencing.
41Following his retirement, the plaintiff continued to experience issues in relation to his right shoulder, left hip, lower back and neck.
42On 2 March 2022, the plaintiff underwent a further ultrasound of his right shoulder. That ultrasound found that the plaintiff had:
“CONCLUSION:
Clinical features of impingement syndrome with ultrasound features of rotator cuff tendinosis and impinging subacromial bursitis. Clinical features of super added adhesive capsulitis.
… .”
43On 4 March 2022, the plaintiff had a CT-guided hydrodilatation into his right shoulder. Despite this, the plaintiff continued to suffer from severe pain and restricted movement.
44Dr Grace referred the plaintiff for an MRI scan of his right shoulder. The MRI scan was performed on 9 May 2022 and it concluded:
“High grade partial thickness articular sided anterior to mid supraspinatus tendon tear.
Moderate subacromial/subdeltoid bursal thickening and mild degenerative changes of the AC joint.
No convincing MR features of adhesive capsulitis.”
45On 7 June 2022, the plaintiff submitted a Worker’s Injury Claim Form. The claim was in respect of the plaintiff’s lumbar spine, right shoulder and left hip.
46The plaintiff was examined by Dr Umberto Boffa, occupational and environmental physician, regarding the claim he had made on 21 June 2022.
47On 5 July 2022, the plaintiff’s claim in respect of his back and left hip were accepted. The plaintiff’s claim in respect of his right shoulder injury was rejected the same day.
48The plaintiff underwent a further injection into his right shoulder joint on 27 July 2022.
49Another x-ray was taken of the plaintiff’s lumbar spine, pelvis and left hip on 30 August 2022. The x-ray reported:
“XRAY - LUMBAR SPINE
Findings: There is broad scoliosis convex to the right side at L3 level. There is anterolisthesis of L5 over S1 with suspicion of a small pars interarticularis defect. However without an oblique view that cannot be confirmed. There is associated facet joint arthropathy in relation to the L4/5 and L5/S1 levels. There is projected sclerosis identified in relation to the superior endplate of the L5 vertebrae, see arrowed image. It could be related to the endplate degenerative change. However sclerotic deposit in this region cannot be excluded as well. CT correlation is recommended. No associated pre or paravertebral soft tissue masses or collections.
XRAY - PELVIS + LEFT HIP
Findings: Bilateral hip joints are enlocated. No underlying degeneration. Pelvis is intact. Soft tissues are within normal limits.”
50In August 2022, the plaintiff started physiotherapy with Chris Stewart, physiotherapist, at Corio Bay Health Clinic. It appears, according to the clinical notes of Matt Tan, physiotherapist, that the plaintiff had a positive result following physiotherapy treatment directed to the right shoulder at Corio Bay Health Clinic.
51On 21 August 2023, Matt Tan recorded:
“R RC tear ( L handed), 2 years ago. Bursitis had CSI, not much help. Went back to work. Then developed frozen shoulder, and had hydro dilatation. Have seen multiple surgeons. Have been seeing Corio Bay Physio for shoulder for 1 year and now at 90%. Have a 5kg weight for L sh HEP.
… .”
(sic)
(emphasis added)
52On 30 August 2022, the plaintiff had an x-ray of his lumbar spine. This found:
“XRAY - LUMBAR SPINE
Findings: There is broad scoliosis convex to the right side at L3 level. There is anterolisthesis of L5 over S1 with suspicion of a small pars interarticularis defect. However without an oblique view that cannot be confirmed. There is associated facet joint arthropathy in relation to the L4/5 and L5/S1 levels. There is projected sclerosis identified in relation to the superior endplate of the L5 vertebrae, see arrowed image. It could be related to the endplate degenerative change. However sclerotic deposit in this region cannot be excluded as well. CT correlation is recommended. No associated pre or paravertebral soft tissue masses or collections.
XRAY - PELVIS + LEFT HIP
Findings: Bilateral hip joints are enlocated. No underlying degeneration. Pelvis is intact. Soft tissues are within normal limits.”
53On 6 September 2022, the plaintiff underwent a CT scan of his lumbosacral spine. The CT scan concluded:
“1.Degenerative disc disease at the L4/5 level with contact of the exiting L4 nerve roots and origin of the left L5 nerve root.
2.There is low grade osteoarthritis affecting the right L4/5 and right L5/S1 facet joints.”
54On 21 September 2022, an ultrasound of the plaintiff’s left hip was undertaken due to a clinical indication querying the presence of bursitis. The conclusion was there were minor enthesopathic changes seen in relation to the gluteus minimus. There was no evidence of trochanteric bursitis.
55In November 2022, the plaintiff was referred to Mr Nicholas Hall, a neurosurgeon, for review of his back pain.
56The plaintiff consulted Dr Hall in December 2022 and had an MRI scan of his lower back on 13 December 2022. The results were:
“Conclusion: L4-5 bilateral facet arthropathy and broad-based disc bulge results in moderate right and mild left neural exit foraminal stenosis. There is also narrowing of the subarticular recesses bilaterally, impinging on the descending L5 nerve roots.”
57The plaintiff saw Mr Hall again in May 2023. Mr Hall informed the plaintiff that surgery would not help him, and recommended the plaintiff try spinal therapy at Kieser. The plaintiff attended Kieser for ten sessions but stopped as he considered it was making his back worse.
58The plaintiff experienced knee problems in 2024, for which he underwent investigations and injections. He said those issues resolved.
59In August 2024, the plaintiff consulted Dr Yang Hwa Ng, a pain specialist. Dr Ng recommended the plaintiff undergo diagnostic injections and, if it would be of benefit, a radiofrequency neurotomy.
60On 13 September 2024 and 24 October 2024, the plaintiff underwent L3-4 and L4‑5 bilateral medial branch blocks. The plaintiff had some improvement in his symptoms for a few weeks but then his pain returned to the previous level.
61On 6 December 2024, the plaintiff returned to see Dr Ng. Dr Ng recommended hydrotherapy treatment. The plaintiff had not been granted approval from his insurer to fund hydrotherapy but indicated during cross-examination that he would try that treatment if his doctors were of the opinion that it would benefit him.
62The plaintiff said he continued to attend Dr Matthew Hargreaves, general practitioner, at Belmont Bulkbilling Clinic, from time to time as needed. Dr Hargreaves provided the plaintiff with prescriptions for Panadeine Forte, which he was taking most days.
63The plaintiff had pain in both heels from time to time, for which he had been treated with cortisone injections. He had tendonitis in his right thumb and middle finger, which had been treated with cortisone injections. He also had high blood pressure, for which he was taking medication.
Treating practitioners’ reports
The Plaintiff’s treating doctors
Dr Yang Hwa Ng, pain physician
64Dr Ng, specialist pain physician at Pain Matrix, prepared two letters, dated 24 April 2024 and 8 August 2024, detailing his treatment of the plaintiff.
65In the letter dated 24 April 2024, Dr Ng diagnosed the plaintiff’s lower back condition in the following terms;
“He has chronic axial lower back pain due to lumbar spondylosis, arising from degeneration in the intervertebral discs, facet joints. … .”
66Dr Ng opined that it was –
“… plausible that chronic repetitive loading and hyperextension work duties required to perform throughout his course of employment contributed to its current injury and impairment of his lumbar spine. Mark reported that he had lots of lifting in his work at Godfrey’s where he worked for 30 years.”
67Dr Ng noted the plaintiff’s restrictions for some activities such as pushing and pulling. He identified that prolonged sitting, standing and walking might affect the plaintiff and possibly cause pain flare-ups. He identified that the plaintiff’s sleep was interrupted due to back and shoulder pain.
68By the time of Dr Ng’s second letter, the plaintiff had undergone bilateral L3-4 and L4-5 medical branch blocks and a bilateral L3-4/L4-5 medial branch radiofrequency neurotomy. Dr Ng recorded that treatment had provided positive results, although noted that the outcomes of interventions could be temporary.
69In his second letter, dated 8 August 2024, Dr Ng referred to the plaintiff having chronic lower back pain that was aggravated by prolonged standing and stooping. He also referred to the plaintiff’s chronic shoulder pain. The letter noted the plaintiff was taking Panadeine Forte, one to two per day.
70Dr Ng recorded that the plaintiff had right knee osteoarthritis which appeared to be better since his hyaluronic acid injection.
71Dr Ng recorded that the plaintiff’s sleep was interrupted as a result of back and shoulder pain. He said that despite the plaintiff’s pain, the plaintiff was independent in his personal and domestic activities of daily living. He did not drive, and took public transport for shopping.
72Dr Ng requested diagnostic medial branch blocks for the plaintiff’s lower back pain and said, if beneficial, the plaintiff could proceed to radiofrequency neurotomy to reduce his lower back pain.
73Dr Ng suggested hydrotherapy exercises to improve the plaintiff’s core muscles.
74Dr Ng recorded that the likelihood of long-term deterioration was variable.
Dr Matthew Hargreaves, general practitioner
75Dr Hargreaves diagnosed the plaintiff with a lumbar spine condition, namely, degenerative thoracolumbar spinal disease and degenerative lumbar spinal facet joint disease.
76In relation to the plaintiff’s right shoulder condition, Dr Hargreaves diagnosed the plaintiff with a chronic rotator cuff syndrome, a supraspinatus tendon tear and associated tendinopathy, subacromial bursitis and subscapularis and infraspinatus tendinopathies, acromioclavicular joint osteoarthritis, and a degree of shoulder capsulitis, likely secondary to the rotator cuff injuries.
77Dr Hargreaves identified that notwithstanding some improvement from the lumbar medial branch neurotomies, the plaintiff continued to experience relatively constant central lumbar back pain, aggravated with bending, twisting or extended walking. Whilst at times the plaintiff could experience associated hip or buttock pain, largely his pain was in the lumbar region.
78Dr Hargreaves considered the plaintiff would be restricted in bending, lifting, twisting, stooping, pushing, pulling, and prolonged sitting, standing and walking. He was of the opinion that activities such as stooping to lift a child, sexual intimacy with a partner, sweeping the floor, emptying a dishwasher, mowing lawns, gardening, walking a dog, playing golf and fishing would all be likely to be “significantly restricted or completely precluded” because of the plaintiff’s lower back injury.
79In relation to the plaintiff’s right arm injury, Dr Hargreaves considered the plaintiff would be restricted in repetitive use of his right arm, and in overhead activities. The restrictions would be significant. Other than the possibility of being able to walk a small well-behaved dog with his left hand, Dr Hargreaves considered the plaintiff would have the same limitations on the activities he could undertake using his right shoulder as he had with respect to his lumbar spine.
Matt Tan, physiotherapist
80Mr Tan was the plaintiff’s physiotherapist whilst the plaintiff was engaged in treatment for his lower back pain at Kieser in Geelong. Mr Tan prepared a letter dated 21 May 2025 detailing the plaintiff’s treatment. Mr Tan recorded that the plaintiff attended Kieser ten times between 21 August 2023 and 21 September 2023. The treatment was directed at strengthening the plaintiff’s back, hip and core.
81Regarding the plaintiff’s restrictions, Mr Tan recorded:
“When I last saw Mark in Sept 2023 his domestic tasks, activities of daily living and recreational activities were all restricted due to his lower back pain. As mentioned previously his walking tolerance was reduced to 30minutes, his vacuuming tolerance was down to 10 minutes and he was unable to golf which he greatly enjoys. With adequate treatment and sustained exercise I would presume that he would be able to do more activities with reduced pain levels but some degree of restriction is likely to continue due to the timeframe and nature of his injury.”
82Mr Tan said he considered the plaintiff may have been able to improve his capacity to perform domestic tasks, activities of daily living and recreational activities if he engaged with further exercise and treatment.
Medico-legal reports
Mr Russell Miller, orthopaedic surgeon
83Mr Miller examined the plaintiff on 9 July 2024, at the request of the plaintiff’s solicitors. He prepared an orthopaedic assessment and report on the same day.
84Mr Miller obtained a description of the plaintiff’s employment with Godfrey Hirst and took a medical history from the plaintiff.
85He conducted a physical examination of the plaintiff and described the plaintiff’s symptoms at the appointment as follows:
“Currently, the client reports the following symptoms:
° Low Back
This is his major problem. He has ache, discomfort and pain in the low back, radiating into the buttocks, groin, and thighs, predominantly on the left side. There are no feelings of numbness and tingling in the legs. He has difficulty with repetitive bending, prolonged standing and sitting. There was no disturbance of bowel or bladder sphincter function. The symptoms fluctuate with a pattern towards deterioration. They cause sleep disturbance.
° Right Shoulder
This is also a major problem for him. He has ache, discomfort and pain in the right shoulder, worse with repetitive and overhead activities. This causes difficulty with activities of daily living and with work. The symptoms fluctuate with a pattern towards deterioration.
° Mental State
He reported no specific mental health issues other than frustration regarding the limitations that follow the accident.
He has ache, discomfort and pain in the left hip and right foot but complained of no other specific orthopaedic symptomatology.
… .”
86Mr Miller noted that the prior problems the plaintiff had experienced with his left hand – which had been treated with cortisone – had largely resolved.
87After examining the plaintiff, considering his previous medical history and noting that he had been unable to view the imaging, Mr Miller offered the following opinion based on the reports of other treaters:
“° Lumbar Spine
The client suffered a musculo-ligamentous strain and aggravation of degenerative disease in the lumbar spine. There are no features to suggest radiculopathy, neurological deficit or structural injury. He has had a poor response to conservative measures, and surgery has not been recommended.
The overall prognosis for the lumbar spine is poor.
° Right Shoulder
The ongoing symptoms are attributed to rotator cuff dysfunction and capsulitis and disease in the acromioclavicular joint. The prognosis is only fair.
…
The client has symptoms in the left hip but has not identified any specific pathology in the hip. The client has undergone surgery to the right foot with minor ongoing symptoms, as recorded in the report of Dr Graeme Brown dated 12 December 2023. These are not of ongoing relevance to this claim.”
88Mr Miller was of the opinion that clinically, the injuries to the plaintiff’s lumbar spine and his right shoulder were permanent and significantly work related. Mr Miller recorded that the plaintiff would have difficulty with activities that involved any spinal movements.
89Mr Miller noted that the plaintiff had symptoms in his left hip without specific pathology. The plaintiff had undergone surgery to his right foot, with minor ongoing symptoms as recorded by Mr Graeme Brown, orthopaedic surgeon, in his report dated 12 December 2023. Mr Miller did not consider those injuries to be of ongoing relevance.
90With regard to the plaintiff’s right shoulder, Mr Miller said:
“… he will have difficulty with work involving prolonged or repetitive right arm actions, use of the right arm in the above shoulder position, and lifting of weights of more than two kilograms. These restrictions are permanent and work-related. … .”
91Mr Miller recorded that the plaintiff was unable to drive a motorcar and had difficulty walking long distances. The plaintiff occasionally used a walking aid. He said the plaintiff’s mobility was reduced due to the lumbar spine injury. Mr Miller recorded that the plaintiff had difficulties with activities of daily living and a reduced capacity for heavy domestic and gardening activities due to the lumbar spine injury and the right shoulder problems.
92Mr Miller recorded that the plaintiff previously enjoyed playing golf but had not been able to resume playing. His view was the plaintiff would have a reduction in his capacity for pre-injury leisure and recreational activities as a result of the lumbar spine injury and right shoulder problems.
93Mr Miller considered the plaintiff had no capacity to return to previous work roles on a full-time basis for the foreseeable future due to both his lumbar spine and also his right shoulder.
Mr Mohammed Awad, neurosurgeon
94Two reports were tendered from Mr Awad, dated 30 July 2024 and 15 April 2025, following examinations of the plaintiff on those dates.
95When examined on 30 July 2024, the plaintiff reported that he experienced constant low back pain that fluctuated on a day-by-day basis, with intermittent exacerbations. He reported left hip and right shoulder pain.
96On examination, Mr Awad noted that the plaintiff had reasonable flexion and extension in the lumbar spine. Extension was more painful than flexion.
97Mr Awad diagnosed an aggravation of lumbar spondylosis and possible left leg radiculopathy with pain radiating into the hip. He did not proffer a diagnosis for the right shoulder.
98Mr Awad opined that the plaintiff’s heavy workplace activities over many years had likely been a dominant contributing factor which had led to the aggravation of the plaintiff’s lumbar spondylosis and his ongoing pain and disability.
99Mr Awad considered the ongoing low back pain precluded the plaintiff from undertaking activities involving pushing, pulling, bending, twisting, lifting, repetitive lumbar spine movements or any prolonged sitting or standing. He considered the plaintiff would be restricted in any social, domestic or recreational activities. The plaintiff would require ongoing pain management treatment, allied health treatment and might also require future surgery.
100When seen on the second occasion on 15 April 2025, Mr Awad detailed that the plaintiff described his pain as a constant lower back pain of 5/10 at most times, which increased to 8/10 during any form of walking or aggravation. The plaintiff continued to have poor, broken sleep on a nightly basis, and a reduced sitting and walking time of up to 20 minutes at best. The plaintiff also experienced left hip and right shoulder pain. The symptoms in the left hip and right shoulder were the same.
101Mr Awad noticed the plaintiff had slightly reduced flexion to about 70 degrees.
102Mr Awad reported that the plaintiff had given up smoking and vaping between the dates of Mr Awad’s two reports.
103Mr Awad’s opinions remained the same.
104Mr Awad considered that as a consequence of the plaintiff’s injury and the impairment of his lumbar spine, the plaintiff was going to be precluded and restricted with respect to any activities involving pushing, pulling, bending, twisting, repetitive lumbar spine movements or any prolonged sitting or standing. His social, domestic and recreational activities would be restricted. The restrictions would be likely to continue into the foreseeable future and the plaintiff would require ongoing conservative treatment in the form of pain management, allied health treatment and pain medication.
The Defendant’s medico-legal reports
Mr Graeme Brown, orthopaedic surgeon
105Three reports were tendered from Mr Brown, dated 12 December 2023, 17 August 2024 and 30 April 2025.
106In his first report, Mr Brown took a history of the plaintiff’s workplace issues, and a medical history from the plaintiff. He identified the plaintiff’s current symptoms including pain in the midline of his back, left hip pain and right shoulder pain. Mr Brown noted the plaintiff was taking Panadeine Forte medication for pain, typically three to four tablets weekly.
107After identifying the plaintiff’s occupation at the time of the work incidents, the plaintiff’s educational and occupational history, his domestic, leisure and social activities and his pre-existing physical and mental health issues, Mr Brown undertook an examination of the plaintiff’s neck, back, right shoulder and left hip. He then noted the medical imaging which had been undertaken.
108Mr Brown reported that the plaintiff has no issues undertaking daily living activities. He did all his own housework. He reported that the plaintiff’s back became painful after five minutes of using a Whipper Snipper. He also referred to the fact that up until 2020, the plaintiff enjoyed playing golf fortnightly and went to the driving range every weekend. The plaintiff stopped playing golf because of his back and right shoulder.
109Mr Brown diagnosed the plaintiff with a degenerative rotator cuff tear in his right shoulder, with most of the pain occurring when the plaintiff was recovering from his foot injury.
110A specific diagnosis of the plaintiff’s hip was not provided. He noted there was evidence of osteoarthritis pain in the lateral aspect of the left hip. It was suggested that the plaintiff’s left hip pain could have been due to problems with the gluteal muscles or the trochanteric bursa, or it could have been the result of back pain which had been referred to the lateral aspect of the hip.
111Mr Brown did not offer a diagnosis for the plaintiff’s lower back injury.
112Mr Brown did not believe the plaintiff had any pre-existing conditions of the right shoulder or the left hip.
113Mr Brown also excluded the possibility of the presence of a functional component in the plaintiff’s physical condition.
114In his second report, dated 17 August 2024, Mr Brown was asked for an updated opinion on the plaintiff’s right shoulder and left hip. After examining the plaintiff and taking a current history, Mr Brown provided an opinion that the plaintiff’s condition had not progressed since he had last seen the plaintiff. Mr Brown said the plaintiff’s right shoulder and left hip had basically not changed. The plaintiff’s lower back was the plaintiff’s most significant concern.
115Mr Brown diagnosed the plaintiff with a degenerative rotator cuff tear. He did not have a precise diagnosis for the plaintiff’s left hip and he did not provide a diagnosis in respect of the plaintiff’s lower back.
116Mr Brown recorded that the plaintiff was taking one to two tablets of Panadeine Forte per day. The plaintiff had been referred to Pain Matrix by his general practitioner, Dr Hargreaves, and neurosurgeon, Dr Nicholas Hall.
117The plaintiff lived alone. He did not have any problems with activities of daily living, such as dressing and personal care. He was able to do housework, cook and clean; however, he took breaks as required because of back pain. The plaintiff was able to tend his small garden and cut the lawn with a Whipper Snipper. He could no longer walk to the shops to do the shopping and relied on a bus or an Uber. He was still able to go to his local hotel about once a week.
118In his third report, dated 30 April 2025, Mr Brown recorded that the plaintiff said his back problem was his biggest issue, and that the plaintiff thought it was worsening. He said the plaintiff was taking more Panadeine Forte: two tablets twice per day.
119The plaintiff reported that his shoulder was not a major problem and his left hip, whilst unchanged and still painful, was tolerable.
120Mr Brown observed the plaintiff struggling to bend over, remove his trousers, and in pain when getting off the examination couch. He recorded the following;
“Back
Mr Gregory has persistent lower back pain. He also experiences pain in the upper left side of his buttocks. The pain is worse when bending or stooping forward, such as shaving or trying to wash the dishes. He can stand for two minutes before supporting his body by holding on or needing to sit. With sitting, he has intermittent pain. He has pain with walking about 100 metres, although can walk for about 20 minutes before he needs to sit down. His pain at night is tolerable, but his pain at other site (sic) causes him to wake most nights.
Right shoulder
As mentioned, Mr Gregory’s right shoulder pain is unchanged. His pain is generalised and worse at night if his shoulder is not at the correct angle. He occasionally has night pain when dressing, such as putting on a shirt or jumper. In a certain position, his shoulder ‘grabs’ momentarily. He believes his right shoulder problem is not a significant issue.
Left hip
Mr Gregory states his left hip pain is in the lateral aspect of his hip and is unchanged. He experiences this pain most when he lies on his left side. He also describes a ‘niggle’ with walking, but this is tolerable.”
121I accept the opinion of Mr Brown.
Dr Umberto Boffa, occupational and environmental physician
122The defendant tendered two reports of Dr Boffa, the first report dated 21 June 2022 and a supplementary report 20 September 2022. Dr Boffa examined the plaintiff on 21 June 2022.
123When seen by Dr Boffa, the plaintiff reported constant severe low back pain, a painful and stiff right shoulder, and a throbbing left hip. The plaintiff could not sleep on either side. The plaintiff reported that he could perform domestic chores in short stints, avoiding movement of the spine, bending, reaching, lifting and carrying. He remained independent in activities of daily living, with difficulty putting on socks and shoes. The plaintiff had previously enjoyed playing golf. He had not played golf for two years and had no other hobbies or sports.
124Dr Boffa concluded the plaintiff has facetogenic low back pain without radiculopathy, a right shoulder rotator cuff injury, adhesive capsulitis, and left gluteus medius enthesopathy. Dr Boffa opined that the plaintiff’s back condition was an aggravation of pre-existing lumbar spondylosis.
125Dr Boffa’s opinion remained the same in his subsequent report dated 20 September 2022.
Dr Graeme Doig, orthopaedic surgeon
126The defendant tendered three reports from Dr Doig, the first dated 30 August 2022 and two reports dated 30 June 2023.
127Dr Doig’s first report of 30 August 2022 was an impairment assessment report of the plaintiff’s capacity following the injury to his foot. Dr Doig diagnosed a disruption of a prior fibrous-union after an attempt at arthrodesis of the first metatarsophalangeal joint for pre-existing osteoarthritis. Dr Doig noted the plaintiff had required revision surgery, and suggested the plaintiff may continue to suffer from osteomyelitis.
128Dr Doig reported that the plaintiff’s general health was good. He had not returned to playing golf.
129The plaintiff was re-examined by Dr Doig on 26 May 2023 for the purpose of a further independent impairment assessment. Dr Doig prepared a report directed to an assessment of the plaintiff’s lower back, right shoulder and left hip. The plaintiff again recorded constant low back pain with no radiation to the lower limbs. The plaintiff described lateral-sided left hip pain which could awaken him from sleep. He had difficulty lifting weights overhead with his right arm. The plaintiff was taking Panadeine Forte for his musculoskeletal pain and an anti-inflammatory agent for his forefoot symptoms. He was also taking Nexium for reflux, and an anti-hypertensive.
130The plaintiff reported avoiding heavy lifting, bending and twisting through the spine.
131Dr Doig diagnosed:
“a. Abductor tendinopathy/trochanteric bursitis at the left hip.
b. Possible rotator-cuff tear at the non-dominant right shoulder.
c. Soft-tissue injury to the lower back with aggravation of pre-existing degenerative change.”
Professor Peter Teddy, neurosurgeon
132Professor Teddy saw the plaintiff on 18 October 2023 and prepared two reports which were tendered. The first report was dated 18 October 2023, and the second report was dated 7 August 2024.
133In his first report dated 18 October 2023, Professor Teddy recorded that the plaintiff’s overwhelming complaint was of low back pain which he had suffered for a number of years. Additionally, Professor Teddy reported that the plaintiff:
“… also described pain between his shoulder blades and some problems with the left hip. The latter caused him to sleep badly. He believed his right shoulder had suffered a tear in the subscapularis, and he had been receiving physiotherapy with some improvement.”
134Professor Teddy recorded that the plaintiff had described his back pain as being “fairly constant” with intensity around 6/10 on a 0 to 10 scale of severity, with intermittent flare-ups. The plaintiff was taking Panadol for the pain, but nothing else. Professor Teddy reported that the plaintiff said he struggled to do the housework although there was not a lot to do. He only had a tiny lawn but found even maintaining that exhausting, particularly doing the mowing. The plaintiff no longer played golf. Professor Teddy recorded that the plaintiff used to be a keen golfer.
135According to Professor Teddy, the plaintiff’s main complaint was low back pain. He had no convincing neurological abnormality. The plaintiff had suffered episodic sciatica in the past but there was no current evidence of radiculopathy. The plaintiff was suffering from mechanical low back pain, likely related to the degenerative changes noted in the L4-5 and L5-S1 facet joints, possibly coupled with discogenic pain at those levels, aggravated by the plaintiff’s working practices over many years. Professor Teddy diagnosed longstanding lumbar spondylosis with periodic exacerbations including episodic left-sided sciatica. He observed:
“I believe that … [the plaintiff’s] current condition is a manifestation of the natural history of lumbar spondylosis that in all likelihood carries a considerable contribution from the 30 years of heavy labouring as described by him with regard to his working practices in the carpet mill. … .”
136With respect to the plaintiff’s shoulder pain, Professor Teddy observed that there was –
“… pain and reduced mobility relating to diagnosed subacromial bursitis and tendinopathy. This pathology requires comment by expert orthopaedic opinion.”
137Professor Teddy’s second report, dated 7 August 2024, recorded that the plaintiff’s condition remained unchanged from his first report; however, he noted that the plaintiff was finding it difficult simply standing in order to peel potatoes or carrots. The plaintiff could only peel a couple of vegetables before having to sit. The plaintiff experienced similar problems with ironing or vacuuming and even standing to shave. Almost any physical activity increased the aching in the plaintiff’s lower back.
138Professor Teddy noted that the plaintiff barely left his house. He went out only for doctors’ appointments and to do grocery shopping once per week. He used public transport or Uber for that purpose. The plaintiff no longer walked, whereas he had previously walked 10 to 12 kilometres a night when at work.
139The plaintiff continued to take Panadol and occasional codeine phosphate for pain flare-ups.
140The plaintiff also continued to experience difficulty sleeping on both sides. He had to lie with his right arm fully abducted and extended at the elbow. Turning onto his left hip induced more pain.
141On examination, the plaintiff continued to complain of pain across the midline of his back.
Parties’ submissions
142The plaintiff submitted the case was a “range” case and that the plaintiff’s claimed impairment consequences met the threshold for the Court to find the plaintiff had sustained a “serious injury”.
143The defendant, relying on Sabo v George Weston Foods,[4] submitted that on the evidence, the Court might find the plaintiff’s spinal impairment was considerable, in the sense that it was important or substantial, without being “very considerable”. The defendant contended “weight must be given to the adverb ‘very’”.
[4] [2009] VSCA 242
144In addition, the defendant submitted the plaintiff was required to disentangle the lumbar spine injury from the other injuries sustained by the plaintiff, to show the lumbar spine injury was the cause of the claimed ongoing impairment consequences. The plaintiff had failed to do so.
Credit
145The credit of the plaintiff is an important issue and an important starting point when an assessment is being made about whether an injury is a “serious injury”.[5]
[5] Johns v Oaktech Pty Ltd [2020] VSCA 10
146This is not a proceeding in which the defendant sought to put the credit of the plaintiff in issue. However, the defendant submitted that the evidence the plaintiff gave in cross-examination and re-examination regarding the injury to his right shoulder was inconsistent with the medical evidence.
147I am satisfied that the plaintiff was a credible witness. The plaintiff gave evidence in a forthright manner and did not avoid any questions. As Professor Teddy described, the plaintiff was a direct historian who came across as “old school” and was not exaggerating his symptoms.
148Ultimately, I am satisfied that I can rely on the plaintiff’s oral evidence and what he has said in his affidavits and to the doctors.
What injuries does the Plaintiff have?
149I am satisfied that the plaintiff is suffering from the following injuries:
(a) aggravation of lumbar spondylosis, episodic left leg sciatica and possible left leg radiculopathy, accompanied by pain radiating into the left hip;
(b) rotator cuff dysfunction in the right shoulder as a result of degeneration of a supraspinatus tendon/rotator cuff tear, adhesive capsulitis and osteoarthritis in the acromioclavicular joint.
150A conclusion that the plaintiff is suffering from aggravation of lumbar spondylosis accords with the evidence of the plaintiff and the opinions of Mr Awad, Mr Miller and Dr Boffa.
151Mr Brown did not provide an opinion.
152I prefer the opinions of Mr Awad, Mr Miller and Dr Boffa to that of Dr Doig. Mr Awad is a neurosurgeon and therefore best placed to diagnose conditions affecting the lumbar spine. Both Mr Miller and Mr Awad saw the plaintiff more recently than Dr Doig. Further, Dr Doig was undertaking an impairment assessment, rather than providing an independent medico-legal opinion.
153The injuries to the plaintiff’s right shoulder are supported by the opinions of Mr Miller, Mr Brown, Dr Boffa and Dr Hargreaves. Dr Doig did not discount the presence of a possible rotator cuff tear of the plaintiff’s non-dominant right shoulder.
154I also accept that the plaintiff had a previous arthritic problem in his right knee which had required three separate steroid injections. I accept the plaintiff’s evidence that his knee no longer caused him pain beyond a “twinge”, though he had to move carefully so as not to aggravate his knee. The plaintiff’s evidence was consistent with what Dr Ng noted in his report dated 8 August 2024, that the plaintiff’s right knee “appears to be better since his hyaluro[n]ic acid injection”. Any right knee injury which the plaintiff still had was very minor in nature and not relevant to the consequences complained of by the plaintiff.
155In relation to the plaintiff’s left hip, Mr Brown noted there was evidence of left hip osteoarthritis and pain in the lateral aspect of the hip, but he did not provide a specific diagnosis of an injury to the plaintiff’s hip. Similarly, Mr Awad identified possible left leg radiculopathy, with pain radiating into the hip. However, the possibility of left leg radiculopathy was in the context of Mr Awad’s opinion that the plaintiff had sustained an aggravation of lumbar spondylosis. Mr Awad did not diagnose a specific injury to the plaintiff’s hip. Dr Doig diagnosed the plaintiff with abductor tendinopathy/trochanteric bursitis at the left hip. However, Dr Doig’s opinion was the only opinion of an ongoing separate injury to the plaintiff’s left hip. His opinion was an outlier, and I reject it.
156I am satisfied that the plaintiff experienced pain from his right shoulder, left hip and his lower back. However, the pain from his right shoulder and left hip were not as significant for the plaintiff as the pain from his lower back.
157Further, in the second affidavit of the plaintiff, the plaintiff reported occasional neck pain. He said the neck pain did not interfere with his daily activities or recreational pursuits. When cross-examined, the plaintiff said the pain in his neck had just come on for a while and receded but was fine then. I find that any neck pain from which the plaintiff was suffering had resolved at the date of the hearing, and the plaintiff was not suffering from a continuing injury to his neck.
158In 2020, the plaintiff sustained an injury to the great toe of his left foot after a pallet fell onto the toe at work. The plaintiff underwent open reduction and internal fixation surgery. The plaintiff subsequently sustained a metalware infection. The plaintiff’s evidence at the date of the hearing was that his big toe did not give him any problems. I accept that evidence. It was consistent with an outpatient report from Barwon Health which indicated that the plaintiff’s left great toe had a metalware-associated infection, which seemed “to have all been cured with metal removal and extended antibiotics and there are no signs or symptoms of ongoing infection there”. I am satisfied that the plaintiff previously had an injury to the great toe of his left foot, but at the date of the hearing, that injury had resolved.
159Similarly, the plaintiff reported having pain in both heels from time to time, for which he had been treated with cortisone injections. At the date of the hearing, there was no injury to the plaintiff’s heels.
160The plaintiff had tendonitis in his right thumb and middle finger, which had been treated with cortisone injections. At the date of the hearing, the plaintiff’s right thumb and middle finger were not injured or symptomatic.
161The plaintiff also has high blood pressure, for which he takes medication.
162Ultimately, at the date of the hearing, I find the plaintiff did not have an injury to his neck, to the great toe of his left foot, to both his heels and to his right thumb and middle finger.
163I find the plaintiff may have had a continuing injury to his right knee; however, the consequences, if any, resulting from the injury to the plaintiff’s right knee, were negligible.
Is the Plaintiff’s lower back injury a compensable injury?
164There was no issue between the parties that the plaintiff’s lower back injury was compensable.
165The principal issue was whether the impairment consequences of the plaintiff’s lower back injury, when considered separately from the consequence of other injuries the plaintiff had sustained, exceeded the threshold for a “serious injury”. That is, were the impairment consequences of the plaintiff’s lower back injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, at least “very considerable” and certainly more than “significant” or “marked”?[6]
[6] Connelly v Transport Accident Commission (supra)
Impairment consequences
166Having identified the plaintiff’s injuries, it is necessary to disentangle the consequences of each injury: in this case, the plaintiff’s lower back, his right shoulder and his right knee.
167The question whether an injury is “serious” is assessed at the time the application is heard and is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak:[7]
“… To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”
[7][1992] 2 VR 129 at 140 (per Crockett and Southwell JJ)
168As the Court of Appeal noted in Sutton v Laminex Group Pty Ltd:[8]
“… [T]he pain and suffering consequences of a compensable injury extend beyond the physical experience of pain to include the debilitating effect on a person’s life.”
[8] (2011) 31 VR 100 at paragraph [46]
169The plaintiff’s experience of pain includes what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the plaintiff’s pain and what the objective evidence shows about the disabling effect of the pain.
170When assessing a plaintiff’s account of their experience of pain, the plaintiff’s credit will often be important. Exaggeration of symptoms or an inaccurate medical history, may mean a plaintiff’s account is of less weight.[9] Regardless of the veracity of the plaintiff’s evidence, reliable medical evidence must not be ignored because the plaintiff is or may not be credible.[10]
[9]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [145]; Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph [91]; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 at paragraph [33]; Haidar v Transport Accident Commission [2016] VSCA 182 at paragraph [32]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 (“Petrovic”) at paragraph [74]
[10]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraph [49]; Petrovic at paragraph [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248 at paragraph [51]
171To identify the disabling effect of pain requires an understanding of a plaintiff’s pre-injury and post-injury employment and activities. This is not a simple comparison. It is necessary to identify the extent to which pain limits a plaintiff’s physical functioning and enjoyment of life. Assessing loss of enjoyment of life requires consideration of various aspects of daily life. Impairment is concerned with what has been lost, although that is informed to an extent by what has been retained.[11]
[11] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 per Ashley JA
172An assessment of what the objective evidence shows about the disabling effect of pain has to be tempered by an understanding of the effects of stoicism.[12] Some plaintiffs may be more stoical than others. The injury suffered by a plaintiff is not to be viewed as any less serious merely because a plaintiff is prepared to endure pain to maintain a level of function. It would be wrong if “an applicant were to be treated less favourably than another who, being of less strength of character, simply resigned himself to his injury”.[13]
[12] Sutton v Laminex Group Pty Ltd (supra) at paragraph [48]
[13] Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [3]
Pain
173In his first affidavit, the plaintiff described ongoing pain and suffering affecting his lower back, left hip and right shoulder. He reported constant pain in all three areas, which worsened with movement.
174The plaintiff said the lower back pain he experienced felt like a constant ache; however, it became sharper and more severe with activity and increased with prolonged standing, sitting and walking.
175In his second affidavit, the plaintiff said he continued to experience persistent lower back pain with flare-ups after minimal activity. The lower back pain was constant, moderate to severe pain. The plaintiff described his pain in the following way:
“I refer to paragraph 33 of my first affidavit and confirm that I continue to suffer from constant moderate to severe pain in my lower back. The pain feels like a constant ache, which becomes sharper and more severe with activity. The pain is localised to the centre of my lower back, however I also have episodes of pain radiating into my left buttock and thigh, in particular after walking. The pain in my lower back generally sits at a level of about 5/10 on a pain scale, however a few times a week I suffer flare-ups of pain where the severity goes to about 8/10. The flare-ups often occur if I walk for more than about 20 minutes. I manage the flare-ups by taking Panadeine Forte. The pain in my lower back is my biggest concern, and causes me the most problems.”
176The plaintiff said the pain in his back increased with prolonged sitting, standing and walking, in particular, it increased if he walked for 20 minutes or more.
177The plaintiff’s back pain was worse than the pain he suffered from any other ailment.
178In his first affidavit, the plaintiff said the left hip pain he experienced felt like a deep throbbing sensation. The left hip pain increased with bending, squatting and prolonged standing and walking. In his second affidavit, the plaintiff said he continued to experience left hip pain which he described as “milder”.
179In his first affidavit, the plaintiff described constant pain in his right shoulder which worsened with activity. In his second affidavit, he said he experienced intermittent right shoulder pain.
180I am satisfied that the plaintiff continues to experience considerable pain as a consequence of his lower back injury alone. I accept that the pain usually sits at around 5-6/10 on a pain scale between 0 to 10, but the pain is often exacerbated to 8/10 with activity such as bending, twisting, standing, stooping or extended walking. The pain is experienced as a constant central lumbar pain. The intensity of the pain can best be described as varying from an ache, discomfort or background pain to severe pain during a flare-up.
181I have reached that conclusion for the following reasons.
182First, the plaintiff has undergone medial branch blocks and neurotomies to try to alleviate the pain. Performance of those procedures suggests considerable ongoing pain.
183Second, the conclusion I have reached is consistent with the opinions of the plaintiff’s treating practitioners. Dr Ng, in his letter dated 8 August 2024, referred to the plaintiff having chronic lower back pain that was aggravated by prolonged standing and stooping. Dr Hargreaves identified that notwithstanding some improvement from the lumbar medial branch neurotomies, the plaintiff continued to experience relatively constant central lumbar back pain, aggravated with bending, twisting or extended walking. Whilst at times the plaintiff could experience associated hip or buttock pain, largely his pain was in the lumbar region.
184Thirdly, the conclusion I have reached is also consistent with the opinions of the medico-legal experts.
185Dr Boffa, in his first report dated 21 June 2022, described the plaintiff as having constant severe low back pain. His opinion remained the same in his supplementary report dated 20 September 2022.
186Mr Miller opined, in his report dated 9 July 2024, that the plaintiff had an “ache, discomfort and pain in the low back, radiating into the buttocks, groin, and thighs, predominantly on the left side”. He said there were no feelings of numbness and tingling in the legs. The plaintiff had difficulty with repetitive bending, prolonged standing and sitting, but there was no disturbance of bowel or bladder sphincter function.
187Mr Awad identified, in his report dated 15 April 2025, that the plaintiff experienced constant low back pain with intermittent exacerbations. In his report dated 30 July 2025, Mr Awad reported that the plaintiff described the pain as being a background lower back pain of 5/10 at most times. The pain increased to 8/10 during any form of walking or aggravation.
188In his report dated 12 December 2023, Mr Brown identified that the plaintiff experienced pain in the midline of his back. He was of the opinion there was no functional component to the plaintiff’s physical condition. The plaintiff had been referred to Pain Matrix and he was waiting for an appointment.
189In his subsequent report dated 17 August 2024, Mr Brown noted that although he had not been asked about the plaintiff’s back pain, the plaintiff had reported to him that his lower back was his most significant concern.
190In his third report, dated 30 April 2025, Mr Brown reported the plaintiff’s “main disability” was related to his back. He observed that the plaintiff “winced with pain when he moved his back”.
191Professor Teddy noted, in his first report, the plaintiff’s low back pain was his “main complaint”. The plaintiff had described his back pain as being “fairly constant” with an intensity of around 6/10 on a 0 to 10 scale of severity, with intermittent flare-ups.
192I am also satisfied that the plaintiff’s right shoulder injury was productive of pain. I have formed the view that the pain from the plaintiff’s right shoulder was an ache or constant minimal to low-grade pain.
193I formed that view first, because that conclusion was supported by the opinions of the plaintiff’s treating practitioners. Dr Ng referred to the plaintiff’s pain as “chronic” shoulder pain, but he did not outline the nature or intensity of the pain. Dr Hargreaves described the plaintiff’s right shoulder pain as being a constant low-grade pain. During cross-examination, the plaintiff agreed with the opinion of Dr Hargreaves as detailed in his report dated 22 April 2025, namely, that “his right shoulder similarly has a constant low-grade pain”.
194Secondly, the conclusion that the plaintiff had a low-grade ache in his right shoulder was also supported by the opinions of the medico-legal experts. When the plaintiff saw Dr Boffa in 2022, Dr Boffa reported that the plaintiff had a painful and stiff right shoulder. Again, the nature of the pain was not expanded upon.
195Following his examination of the plaintiff on 9 July 2024, Mr Miller identified that the plaintiff’s right shoulder was “a major problem for him”. Mr Miller also described the plaintiff as having –
“… ache, discomfort and pain in the right shoulder, worse with repetitive and overhead activities. This causes difficulty with activities of daily living and with work. The symptoms fluctuate with a pattern towards deterioration.”
196The plaintiff did not accept Mr Miller’s characterisation of the pain in his right shoulder, and disagreed that he was downplaying the effect of his right shoulder problem because the lawyers wanted the plaintiff to focus on his back problem:
Q: “You agreed, I suggest, that when I read out to you about Dr Miller and what he had recorded, that you have ache, discomfort and pain in the right shoulder, worse with repetitive and overhead activities, that causes difficulty with activities of daily living and with work, and the symptoms fluctuate with a pattern towards deterioration, you accepted that that was an accurate reflection on your shoulder?---
A: I don’t know about real deterioration.
Q: But otherwise you accept that that’s what - what Dr Miller has recorded was - is accurate?---
A: I’m not so sure.
Q: I suggest that you’re downplaying the effects of your shoulder problem because you know that in this proceeding your lawyers want to focus upon your back problem?---
A: I have no idea.”
197In his third report, dated 30 April 2025, Mr Brown opined that the plaintiff’s right shoulder pain was unchanged and was generalised and worse at night if his shoulder was not at the correct angle. The plaintiff occasionally had night pain when dressing, such as putting on a shirt or jumper and in a certain position, and his shoulder “grabs” momentarily.
198Pausing here, I note Professor Teddy recorded in 2023 that the plaintiff’s “overwhelming complaint” was that of lower back pain. I find this remained the case up to the hearing date. Professor Teddy affirmed this in his report of 7 August 2024. In that sense, although the plaintiff had pain from his right shoulder, the pain was not overly significant.
199I accept that the plaintiff’s left hip caused him a small amount of pain at nighttime, affecting his sleep; however, the left hip pain did not otherwise restrict the plaintiff in his activities of daily living. The pain the plaintiff experienced from his left hip was low grade and insignificant pain. That pain may have been referred pain from the plaintiff’s lower back, or it may have been pain from an independent injury. However, it was not significant pain.
200For completeness, I note that the plaintiff also previously had occasional neck pain, pain in both heels and pain in the great toe of his left foot. Any pain from those prior injuries was negligible, and I find those injuries were not productive of consequences for the plaintiff at the date of hearing.
201The plaintiff had a prior arthritic problem in his right knee. His evidence was his knee did not cause him pain beyond a “twinge”, though he had to move carefully so as not to aggravate his knee. The plaintiff’s evidence was consistent with what Dr Ng noted in his report dated 8 August 2024, that the plaintiff’s right knee “appears to be better since his hyaluro[n]ic acid injection”. I find that any pain from the plaintiff’s right knee at the date of the hearing was negligible.
202Similarly, to the extent the plaintiff had tendonitis in his right thumb and middle finger, which had been treated with cortisone injections, the tendonitis was not symptomatic at the date of the trial.
203Ultimately, I am satisfied that the plaintiff experiences pain from his right shoulder and his lower back. However, the pain from his right shoulder was not as significant for the plaintiff as the pain from his lower back. I further find the plaintiff suffers negligible pain from his right knee. Any pain from the plaintiff’s neck condition, big toe, heels, and his right thumb and middle finger, was negligible at the date of the hearing.
Medication and medical treatment
204In his second affidavit, the plaintiff outlined his ongoing treatment. He reported completing ten sessions of spinal therapy at Kieser but said he ceased attending as he felt the treatment worsened his back pain. He said he was awaiting approval for hydrotherapy which had been recommended by Dr Ng. Otherwise, his treatment consisted of occasional attendances upon his general practitioner, Dr Hargreaves, who prescribed the plaintiff with Panadeine Forte for pain and medication for blood pressure. The plaintiff said he was not undertaking any structured treatment or exercise program, and was managing his symptoms primarily with medication.
205At trial, the plaintiff’s evidence was that he was being prescribed Panadeine Forte, once per day. Outside of seeing his general practitioner for prescriptions, the plaintiff said he did not engage in any other treatment. The plaintiff indicated a willingness to participate in hydrotherapy, though the funding from the insurer had not been approved at the date of trial. The plaintiff said he had not been aided by the physiotherapy sessions at Kieser, which were directed at strengthening the plaintiff’s core and lower back.
206In cross-examination, the defendant put to the plaintiff that the medication he was prescribed also assisted with the pain in the plaintiff’s shoulder. The plaintiff said “The right shoulder doesn’t give me a lot of problems. It’s mainly to do with my back that I have the Panadol.”
207I accept the plaintiff’s evidence.
208As I have found, the plaintiff was experiencing generally more than moderate pain from his lower back injury alone. Any prescription of Panadeine Forte addressed that pain. Even if it had the additional effect of providing some relief for the plaintiff’s right shoulder injury, that does not detract from the conclusion that the plaintiff was taking regular prescription medication to alleviate debilitating lower back pain.
209Consistent with my conclusion, because Mr Awad considered that the plaintiff would require ongoing pain management treatment, allied health treatment and might also require future surgery.
Mobility
210In his first affidavit, the plaintiff described the movement of his back as stiff. He said he had difficulty with any activities that required bending, twisting, lifting and stooping. He struggled with bending down to put on his shoes and socks due to the pain and stiffness in his back.
211The plaintiff also explained that his right shoulder was stiff, and movement was restricted. The plaintiff said that as a result of pain and stiffness, it was difficult for him to use his right upper limb for lifting, pushing, pulling and reaching over head height.
212In his second affidavit, the plaintiff described that he continued to experience stiffness in his lower back and had difficulties with activities that required bending, lifting, twisting and stooping. He was restricted in his physical ability to sit, stand and walk for prolonged periods. Walking for around 20 minutes or more caused the plaintiff’s back pain to increase.
213I accept the plaintiff’s right shoulder injury affected his mobility with regard to lifting, pushing, pulling and reaching overhead.
214In relation to the plaintiff’s lower back injury, Mr Miller recorded that the plaintiff would have difficulty with activities that involved any spinal movements. He said the plaintiff’s mobility was reduced due to the lumbar spine injury. He had difficulty walking long distances and occasionally used a walking aid.
215Mr Awad considered the ongoing low back pain precluded the plaintiff in any activities involving pushing, pulling, bending, twisting, lifting, repetitive lumbar spine movements or any prolonged sitting or standing.
216In his most recent report, Dr Brown observed the plaintiff –
“… struggled bending over to remove and put on his shoes. He also needed to hold onto a chair while standing to remove his trousers. In addition, when he was getting off the examination couch, he winced with pain when he moved his back.”
217Dr Brown attributed those effects to the plaintiff’s back injury.
218Dr Doig noted in his report that the plaintiff reported avoiding heavy lifting, bending and twisting through the spine. However, Dr Doig did not address the reason for this.
219When all the evidence is considered, it is apparent, and I find, with respect to the plaintiff’s lower back when considered alone, the plaintiff has significant restrictions with bending, lifting, twisting and stooping. He is also restricted in his physical ability to sit, stand and walk for prolonged periods.
Activities of daily living
220The plaintiff lives alone.
221In his first affidavit, the plaintiff said he struggled to perform many household tasks. His shoulder pain limited lifting and overhead activities, while his back and hip pain restricted bending, standing and mobility generally.
222The plaintiff said he carried out the household chores because he lived alone and had no choice but to do them himself. The plaintiff explained that his back caused him to have difficulty with tasks that involved bending and being on his feet. He tried to pace his activities by taking breaks as required. He said he found it frustrating to go about his activities of daily living in that manner, but if he pushed himself too hard, he suffered an increase in pain. He explained that gardening and mowing caused him to suffer back pain.
223When cross-examined, the plaintiff said he had difficulty vacuuming, washing dishes and cleaning the bathroom due to lower back pain. The plaintiff said he struggled to garden, but this was not a significant loss for him.
224The plaintiff said he would struggle to walk for longer than 30 minutes as a result of his lower back injury.
225Dr Hargreaves was of the opinion that activities such as stooping to lift a child, sexual intimacy with a partner, sweeping the floor, emptying a dishwasher, mowing lawns, gardening, walking a dog, playing golf and fishing would all be likely to be “significantly restricted or completely precluded” because of the plaintiff’s lower back injury.
226Mr Tan noted that the plaintiff’s vacuuming ability was limited to 10 minutes.
227Mr Miller considered the plaintiff would have a reduced capacity for heavy domestic and gardening activities as a result of his lumbar spine injury.
228Mr Awad considered the plaintiff would be limited in his domestic activities.
229Mr Brown identified that the plaintiff was independent in activities of daily living, but he also noted that the plaintiff’s back became painful after five minutes of using a Whipper Snipper.
230According to Professor Teddy, the plaintiff now has trouble standing to peel vegetables and has to sit after peeling only a couple of potatoes or carrots. The plaintiff can no longer walk to do his grocery shopping. He is required to take public transport or an Uber.
231I am satisfied the plaintiff’s lower back injury has had a substantial impact upon his activities of daily living.
Golf
232In his first affidavit, the plaintiff said he could no longer walk long distances or play golf. Prior to his injury, the plaintiff said he used to play golf most weekends. He said he missed the social aspect of the game and had become socially withdrawn.
233The plaintiff confirmed that remained the case when he swore his second affidavit. He said his back pain and stiffness caused him to be unable to properly swing a golf club. He also struggled with the amount of walking required as part of a game of golf. He continued to miss playing and the social aspects of the game. He referred specifically to a trip to Tasmania in late 2024. He said he was unable to fully participate in the fishing and golf activities enjoyed by his friends due to pain and restriction. He found that disappointing.
234Gavin Meade, a friend of the plaintiff, swore an affidavit on 2 June 2025. Mr Meade was formerly employed as a pro shop attendant at the Barwon Valley Golf Club. He said he had known the plaintiff since the early 2000s. He was aware the plaintiff was a keen golfer. He and the plaintiff had begun playing golf together once a week in 2004.
235Mr Meade left Victoria and relocated to Queensland in 2016. He moved back to Geelong in 2023. When he returned, he saw the plaintiff at the Valley Inn and tried to organise a round of golf with him. He said it had been a number of years since they had played golf together. Mr Meade recalled the plaintiff said to him that he had not been able to play golf for a number of years due to injury to his back. Mr Meade said the plaintiff told him he missed playing golf very much but did not think he was up to playing a round.
236The evidence established that the plaintiff experienced a flare-up of pain in 2017 whilst he was playing golf. It also showed that the plaintiff had not played golf since before COVID.
237The defendant pointed to a medical report by Matt Tan, physiotherapist, made in 2023 which said the plaintiff had not played golf for three years. In cross-examination, the defendant suggested the termination of the plaintiff playing golf coincided with the injury to the plaintiff’s foot and was not the result of the plaintiff’s back injury.
238When cross-examined, the plaintiff accepted he had stopped playing golf before COVID; however, he disagreed that was because he injured his foot. The plaintiff said he was “struggling” because of his lower back injury and “couldn’t possibly play golf the way my back was”.
239During re-examination, the plaintiff said he had been playing golf since he was nine or ten years old. At one point, the plaintiff played golf weekly and had an enviable handicap of 7 or 8 shots. He played pennant.
240I accept that the plaintiff stopped playing golf prior to the injury to his foot, as the plaintiff suggested during his evidence. That finding is consistent with the plaintiff’s evidence. I further accept the plaintiff stopped playing golf because of the pain he experienced in both his back and his right shoulder. That was consistent with what was recorded by Mr Graeme Brown in his report dated 12 December 2023, that:
“The plaintiff went to the driving range every weekend and played approximately fortnightly. He stopped playing golf because of his back and shoulder.”
241In re-examination, the plaintiff was asked about the impact both his shoulder and his lower back injuries were then currently having on his ability to play golf. The plaintiff’s evidence was:
Q: “Does your right shoulder as of today affect your ability to play golf?---
A: No.
Q: Does your neck affect your ability to play golf?---
A: No.
Q: Does your hip condition affect your ability to play golf?---
A: No.
Q: What’s stopping you from playing golf?---
A: My back; my sore back.
Q: How does the pain level in your hip compare to your low back?---
A: Very minor.
Q: Does your right knee prevent you from playing golf?---
A: No, it’s good now.
Q: Do you have any symptoms in your right knee now?---
A: No.
Q: What’s the situation with the condition you had or the injury you had with your big toe? Do you have any problems with your big toe now?---
A: No, it’s good; good.”
242I accept that the plaintiff is unable to play golf as a result of his back injury. That conclusion is consistent with Matt Tan’s clinical notes. Mr Tan observed that the plaintiff’s right shoulder was back to 90 per cent, yet he was still unable to play golf. Mr Tan’s observation supports the conclusion that the plaintiff’s lower back injury was the reason, at the date of the hearing, that the plaintiff could not play golf.
243In determining that the plaintiff is unable to play golf because of his lower back injury, I have also taken into account all that goes along with playing golf; the bending when teeing up and picking up the ball, the twisting when swinging the club, and the constant walking. An injury that results in constant pain and restricts the plaintiff’s mobility in his lower back is, in my view, clearly what is preventing him playing golf.
244I now turn to the significance for the plaintiff of the loss of the ability to play golf.
245The plaintiff submitted that because he is now retired, he should be enjoying the fruits of his hard labour by being able to play golf and live a pain-free life.
246The defendant submitted that the plaintiff had not emphasised the significance of golf in his affidavit material. Rather, the suggestion that golf was of some importance to the plaintiff was not raised until re-examination. The thrust of the defendant’s submission was that the plaintiff’s loss of golf was not as significant to him as the re-examination may have suggested. I disagree.
247Matt Tan’s clinical notes recorded that the plaintiff “loves” golf, and that his goal was to get back to playing golf. Similarly, the affidavit of Gavin Meade, sworn 2 June 2025, made clear that the plaintiff was a good golfer and someone who enjoyed the game. Other medical material likewise highlighted the importance of playing golf to the plaintiff. Professor Teddy, for instance, recorded that the plaintiff “no longer plays his beloved golf”. Dr Boffa recorded in 2022 that the plaintiff had not played golf for two years and had no other hobbies. Mr Brown said the plaintiff enjoyed playing golf up until 2020. He went to the driving range every weekend and would play golf approximately fortnightly, but he stopped playing golf because of his back and his shoulder.
248I find that because of the plaintiff’s lower back injury, he has lost the ability to play golf. It is a substantial loss for him.
Driving
249In his first affidavit, the plaintiff said he did not have a driver’s licence. He said he used to walk most places but now finds walking difficult due to back pain.
250In his second affidavit, the plaintiff reported reduced independence and increased reliance on public transport and catching Ubers.
251I accept that the plaintiff relies on public transport, but as he did not have a driver’s licence at the time he was injured, I do not consider the inability to drive was a relevant impairment consequence for the plaintiff.
Grandchildren
252In his first affidavit, the plaintiff said his injuries had significantly diminished his ability to enjoy retirement and interact with his grandchildren. The plaintiff described how he has to be careful now when interacting with his grandchildren. He explained that his shoulder pain now prevented him from lifting his youngest grandchild, who was three years old.
253In his second affidavit, the plaintiff said he continued to be careful when interacting with his younger grandchildren to avoid a flare-up of back and shoulder pain.
254In my view, while the plaintiff’s right shoulder injury may be a reason he is unable to lift his younger grandchildren, his lower back injury was also operative.
Social activities
255In his second affidavit, the plaintiff expressed feelings of frustration, and identified his social withdrawal, stating his injuries had significantly impacted his quality of life and enjoyment of retirement.
256Mr Awad considered the plaintiff would be restricted in any social, domestic or recreational activities.
257I am satisfied that the plaintiff’s lower back injuries have had an impact on his social activities, although I consider any impact was minimal.
Sleep
258In his first affidavit, the plaintiff said at night, his sleep was “severely impaired”. He said he was no longer able to sleep comfortably on either side due to hip and shoulder pain, and he found it difficult to get comfortable to fall asleep. His sleep was broken throughout the night.
259In his second affidavit, the plaintiff identified that his pain – particularly pain in his lower back and shoulder – disrupted his sleep, leaving him fatigued. He said most days he took a nap to get through the day.
260The plaintiff was asked about the reasons for his inability to sleep when he was cross-examined. He said:
Q: “You talked about your left hip and it’s a problem if you roll over to it when you’re sleeping or trying to get to sleep; is that right?---
A: Correct.
Q: And, similarly, if you roll to the right, that can affect - that can also interrupt or affect your ability - affect your sleep or affect your ability to get to sleep?---
A: It can do.
Q: Yes. And it’s really those problems, those left-sided hip problems and your right-sided shoulder problems, that have an impact on your sleep rather than your back; do you accept that?---
A: Yes.
Q: It would be wrong to suggest that the back is a significant - causes significant problem with your sleep as compared to your right shoulder or your left hip?---
A: Well, when I wake up of a morning, that’s when my - I feel it in my back.
Q: Yes, you feel some symptoms in your back, but it’s your right shoulder and your left hip which affect your ability to get to sleep or would wake you up when you roll to your left or right side?---
A: Sometimes, yes.”
261The plaintiff was also asked in cross-examination about the impact his lower back injury had on his sleep. He said, “I can feel it a little bit in bed, of course, yeah”. He thought his back pain affected his sleep “a little bit”. He was not sure whether it impacted his ability to stay asleep at night.
262I accept that there has been a moderate impact on the plaintiff’s sleep because of his lower back injury. The plaintiff’s right shoulder and his left hip also impact his sleep.
Analysis
263I accept the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the evidence of the plaintiff, the affidavit of Gavin Meade, and the medical evidence. I accept that, but for the injury to his spine, the plaintiff would now be enjoying a fruitful retirement.
264The plaintiff experiences considerable constant daily pain from his lower back injury alone. The pain is usually around 5-6/10 on a pain scale between 0 to 10, but the pain can be exacerbated to 8/10 with activity. The pain is experienced as a constant central lumbar pain which varies in intensity from an ache, discomfort or background pain to severe pain during a flare-up.
265The plaintiff has right shoulder pain which he experiences as an ache or as a constant minimal to low-grade pain. Similarly, although the plaintiff’s left hip causes him pain at night, the pain is low-grade.
266The plaintiff takes ongoing daily prescription pain-relief medication, namely, Panadeine Forte.
267The plaintiff’s injuries have affected his mobility. His back injury alone has impacted his ability to undertake any activities that require bending, twisting, lifting and stooping. He cannot sit, stand or walk for prolonged periods of more than 20 minutes. In my view, this is a significant factor tending towards the conclusion that the plaintiff’s injury is a “serious injury”.
268The plaintiff is now seventy-three-years-old. He lives with his current situation. While he performs activities of daily living and carries out household chores, he has no choice but to do them himself because he lives alone. He struggles to vacuum, sweep the floor, wash dishes, empty the dishwasher or clean the bathroom. He can only stand to peel vegetables for a short time. He is unable to stoop to lift a child. Sexual intimacy with a partner is now difficult. He has trouble mowing lawns, gardening, Whipper-Snippering, walking a dog, playing golf and going fishing because of his lower back injury.
269I also take into account the plaintiff’s stoicism. He worked with debilitating back pain for at least ten years, which, in my view, supports the conclusion that the plaintiff is prepared to endure pain to maintain a level of function and in that sense the plaintiff is stoic. He has lived with the effects of the injury to his spine since at least 2012.
270I am satisfied from the medical evidence that the impact of the plaintiff’s lower back injury will continue through the foreseeable future. The plaintiff has been referred to Dr Ng, a pain physician. Mr Awad opined that the plaintiff was likely to suffer the consequences of his back injury in the form of some degree of pain and disability into the foreseeable future and would require ongoing pain management treatment. I accept the plaintiff’s spinal injuries are permanent.
Conclusion
271For the foregoing reasons, I am satisfied that, when judged by comparison with other cases in the range of possible impairments, the plaintiff has suffered a “serious injury”. The impairment consequences of the plaintiff’s injury to his spine can reasonably be described at least as “very considerable” and certainly more than “significant” or “marked”.
272Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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