Johal v Victorian WorkCover Authority
[2025] VCC 1359
•15 September 2025 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-25-01006
| TIRATH SINGH JOHAL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 September 2025 | |
DATE OF JUDGMENT: | 15 September 2025 (ex tempore) | |
CASE MAY BE CITED AS: | Johal v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1359 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – Pain and suffering – Consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
(Vic)
Cases Cited: TTB SMS Pty Ltd v Reading [2020] VSCA 203; Ellis
Management Services Pty Ltd v Taylor [2013] VSCA 326;
Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260;
Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Judgment: Leave is granted to commence a common law proceeding
for pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Smith | Slater & Gordon |
| For the Defendant | Ms G.J. Cooper | Lander & Rogers |
HIS HONOUR:
1Firstly, by way of introduction and by way of formalities. This is an application brought by Tirath Johal ‑ who I will refer to as 'the plaintiff' ‑ pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013, whereby he seeks a serious injury certificate from the Court; specifically, he seeks the leave to commence a common law proceeding for pain and suffering damages.
2The injury relied on is injury to the spine, described as the aggravation of underlying degenerative change, as shown on radiology. I will deal with the medical evidence in due course.
3The proceeding was conducted in what I would broadly describe as the usual manner. The parties tendered documents from court books. The plaintiff relied on two affidavits sworn by himself and an affidavit from his wife, together with related medical material.
4The defendant relied on two medical reports, a medical panel opinion and some physiotherapy notes. The medical and other evidence was, refreshingly, limited in this proceeding and the parties should be congratulated for focusing on the key issue.
5The plaintiff presented for cross‑examination and gave oral evidence, in which he was appropriately challenged as to some of what he had said in his affidavits and, more broadly, as to his restrictions and residual capacity for work.
6In respect of legal principles, they are well known and mostly not in dispute in this proceeding. It is the plaintiff who has the overall onus to establish a 'very considerable' pain and suffering consequence. I must take into account the range of impairments and impairment consequences and not just those that come before the courts.[1]
[1] TTB SMS Pty Ltd v Reading [2020] VSCA 203
7In addition, in a case such as this, where the plaintiff relies on the prospect of some interference with his employment as a pain and suffering consequence, I am also restrained but entitled to take that into account in the more limited manner as set out in Ellis Management Services Pty Ltd v Taylor.[2]
[2] [2013] VSCA 326
8Next, this is a proceeding in which the defendant does not seek to impugn the plaintiff's credit. It accepts that the plaintiff presented as a credible witness and does not seek to attack him in the sense of his reliability or honesty.
9The fact that the plaintiff is a credible witness is, of course, relevant; but, having said that, perhaps being a reliable and credible witness is the very least that a court can expect. In other words, the fact that the plaintiff is a reliable and credible witness does not elevate his consequences to something that they are not simply because he is telling the truth.
10It is convenient, then, to briefly deal with the evidence and say a little bit about the plaintiff's background. Much of what follows is not in dispute.
11The plaintiff was born in 1973 in the Punjab region of India. He migrated to Australia at about age four and has lived here ever since.
12From about 1982 he has lived in Melbourne. He is a married man with two children; one who is adult, one who is getting close to that.
13He was educated to Year 12 level, attempted an accounting course but did not finish it, and since then has had a relatively varied work history but broadly in jobs that could be described as blue collar. That has included driving taxis, some form of labouring work, working at Holden and, from about December 2011, working at the Sorbent Paper Company, effectively, as a yard hand and machine operator. Apparently somewhere in there, he and his wife also had some form of transport business, although that is not well understood.
14The plaintiff has a range of comorbid or unrelated health conditions, including asthma, a left knee condition and he has battled his weight for many years. He has also had the misfortune of having a brother and mother who he lost in tragic circumstances, that I do not propose to dwell on, and, understandably, has had some psychological upset associated with that.
15He has also had a bit of grumbling back pain from time to time, but in the sense that this is an aggravation case there is no evidence that he had a florid or symptomatic low‑back condition before it became symptomatic in the course of his employment with the Sorbent Paper Company.
16The left‑knee injury occurred with that employer in March of 2018. It required a left knee meniscectomy. It seems that the plaintiff has some intermittent symptoms in the left knee, perhaps due to some instability or a feeling of instability in the knee, but, on balance, nothing that greatly incapacitates him.
17As I mentioned, he has also had some intermittent low‑back pain. His affidavit evidence was that pain returned in the course of his employment in about 2019, but became problematic for him in June 2021 when he was pulling on some wires at work.
18In that context, on 15 June 2021, he attended the general practitioner, Dr Javed, who has provided some limited evidence; including reports more recently.[3] The plaintiff has had intermittent attendance on Dr Javed since then but, seemingly, often only to get a word processor‑type medical certificate and no real treatment as such.
[3] Plaintiff’s Court Book (“PCB”) 65
19In any event, soon after the attendance on Dr Javed, he was referred for radiology. Reports of those radiological scans are in the plaintiff's court book, which include an MRI of his cervical, thoracic and lumbar spine performed on 6 August, the report of which is at page 91 of the plaintiff's court book. It describes what are probably pre‑existing radiological findings, which, as the plaintiff relied on, were aggravated in that incident, including, I think, more relevantly, in the lumbar spine the aggravation of an underlying spondylolisthesis and some generalised disc bulging at the two lower lumbar levels.
20Because of the symptoms in his back, in the context of that radiology, he was referred for an opinion with a well‑known neurosurgeon, Mr Paul D'Urso. Mr D'Urso examined the plaintiff on 25 August 2021 and wrote back to Dr Javed on 27 August 2021 in a letter.[4] That letter set out the history of the onset of symptoms; pulling on the wires to position chemical packs. Pausing, I note there is considerable oral evidence about the plaintiff's work duties and other evidence how the plaintiff has to load chemical packs into a machine. I will return to that in a moment.
[4] PCB 56
21Mr D'Urso described the MRI scan of 6 August 2021 but does not specifically say that those radiological findings had been aggravated and rendered symptomatic, although by inference from the totality of his report that appears to be what he says.
22At that time he recommended conservative treatment, suggested some over‑the‑counter or possible anti‑inflammatory medication and a program of core strength exercises and hydrotherapy under the supervision of a physiotherapist. He said the plaintiff could have capacity to return to some light employment but should avoid bending, twisting and lifting activity and avoid lifting from below the knee or above the shoulder and avoid working in confined spaces and that the plaintiff needed to ambulate freely in the workplace.
23Pausing here. Those restrictions have been broadly adhered to by the plaintiff since he returned to work in October 2021. He returned initially on reduced hours but over time increased to his pre‑injury hours. He continues to work a rotating shift. He works full hours and is in a real job, for want of a better phrase.
24In any event, returning to Mr D'Urso. He said that he had indicated to the plaintiff that if the lumbar condition were to continue, then he could consider a minimally invasive fusion, but, in Mr D'Urso's words, that would be a bit of a last resort.
25Things have not really continued as they were when the plaintiff saw Mr D'Urso because in fact the plaintiff was able to return to work and has coped in that work. Mr D'Urso's opinion about a minimally invasive fusion I interpret to be no more than a comment that if conservative treatment was to fail and if symptoms were to persist, or indeed progress, then that would be the treatment of last resort.
26What in fact happened, as I mentioned, was that the plaintiff returned to work and in fact got back to his pre‑injury hours. After an initial period of physiotherapy, that has settled down so that physiotherapy attendances are now infrequent and very much so, as the evidence is that he has had one physiotherapy attendance in the last 10 months or so.
27Instead, the treatment has been the use of Nurofen to manage flare‑ups. As the plaintiff said today, sometimes four, six or eight tablets in a period of about a week, or sometimes a few days, and, as I understand his evidence, at other times, several weeks of using no medication. The best form of treatment, as the plaintiff described it, and really consistent with the whole of the evidence, is to simply be careful with what he does.
28I have mentioned Dr Javed a couple of times. The medical reports are of little assistance because of the way in which they have been produced. Dr Javed continues to provide certification for modified duties. There's a limit in the weight to attach to that evidence, where it is clear that there is, effectively, a word processor approach to providing those certificates, highlighted by the fact that the certificates include workplace related soft‑tissue injury to the right elbow and wrist, noting that there is no reliance on those conditions for the purpose of this application.
29The treatment that the plaintiff has had is physiotherapy treatment at Alphington Sports Medicine. Mr La Scala, sports physiotherapist, provided a report, dated 21 August 2025. He noted the plaintiff first attended his clinic on 7 September 2021.[5] He noted the onset of symptoms at work ‑ more problematic from pulling on the wires, as I have described.
[5] PCB 66
30He said that since then, the plaintiff had undertaken approximately 35 physiotherapy sessions. That treatment had focused on manual therapy to improve spinal mobility and reduce pain, together with a home exercise program targeting strength and mobility. He noted that combined with workplace and lifestyle modification, that had enabled the plaintiff to continue working.
31He said he thought the plaintiff would benefit, to manage his symptoms, with intermittent physiotherapy and in that context he had reviewed the plaintiff once this year and four times last year. He said the condition was stable and the plaintiff was managing it appropriately. True it is that he is not a surgeon, he did say he did not believe that surgical intervention would be indicated, but he thought perhaps a review by an orthopaedic specialist would be advisable.
32Mr La Scala noted the plaintiff had demonstrated self‑management strategies and workplace adjustments during flare‑ups, including reduced hours, workstation and posture modification. He noted the plaintiff was currently managing a full‑time workload.
33Returning to the plaintiff's affidavit evidence. He was challenged broadly in respect to several key issues, including his sleep, his ability to continue to walk, in particular to exercise whilst he takes his Golden Retriever to the park. He was challenged about his ability to continue in full‑time work. He was challenged broadly that whatever level of pain he has is not constant and he agreed with that. He was challenged about some of his affidavit evidence about tasks such as cooking, cleaning and gardening, but only in the broad, in the sense that he is still able to do some of those things.
34He was asked considerable questions about his employment. He set some of that out in his affidavits. There has been something of a restructure at work, which meant that one of the machines he previously had to operate he no longer has to operate and he now only operates a machine described as the PM4, but other than that, works full‑time.
35There was no direct attack on the plaintiff's credit. There was no direct attack to much of his affidavit evidence.
36I also note that the plaintiff relies on an affidavit from his wife. She was not required for cross‑examination, but that does not mean that her evidence goes in untested. Rather, it needs to be considered in the context of the cross‑examination of the plaintiff. In particular, some of her evidence about the ability of the plaintiff to walk, and the frequency with which he walks, needs to be seen in the context of the cross‑examination of him.
37Turning then to the cross‑examination. I do not have the benefit of a transcript, but I feel that I have sufficient notes to do it justice. The cross‑examination commenced with questions about the plaintiff's employment. He confirmed he does a five‑day roster. He confirmed that since sometime in 2023 he has been doing full duties and hours. He works loading chemical packs into a very large machine. He works on a part or parts of that machine.
38He confirmed he works an eight‑hour shift. On some occasions he does other duties other than his scheduled duties, depending on need at work. He described how he uses the forklift to try and modify tasks that require lifting below waist height. He described how he has modified how he cuts the wires on the chemical packs. He described how he now uses a set of steps, that was arranged by his employer, to make it easier to access the forklift. He confirmed that he was doing a normal job, in the sense that if he was not doing it, then that exact same job, with or without the steps, would be offered to somebody else.
39He said he has had fewer flare‑ups now that he is a PM4 operator only and that his current role is easier than when he was combined running a PM3 and PM4 machine. He accepted that he has only had the one physiotherapy session since November 24. He accepted that there is no treatment from the general practitioner and broadly accepted a history that he gave to Dr Robyn Horsley, a medico‑legal expert that I will get to in a moment.
40He accepted that he walks the dog when he has time or when the weather permits, although he did say when his low back allows, but I got a sense from his oral evidence that that would be the exception rather than the rule. He drives to the dog park and spends 30 minutes or so there, where he and the Golden Retriever ‑ or perhaps more so he ‑ might complete a circuit of some two to two and a half kilometres. He said he does that solo, although sometimes with his wife. He noted that she worked as a nurse, so there was some difficulty in lining their schedules up.
41The plaintiff, in his oral evidence, confirmed what he had said in his most recent affidavit, where he said he had back pain most of the time but some periods when he is pain‑free. He accepted there were times when there is 'no pain', but he qualified that and said it was there 'most of the time'. He described how there was no real frequency or pattern to it, although it was worse in the colder months.
42He said that once every couple of months he might get a flare‑up that is 7 to 9 out of 10 on the visual analogue scale. He said he tries to manage the flare‑ups himself or he might have one, two or three sessions with the physio if he has one of the more severe flare‑ups. He accepted that he had managed the pain fairly well this year. Whilst it was not quite specifically accepted, it seemed to me the inference from his evidence was that the happenstance of the change to the PM4 machine only has made it easier for him to avoid the severe flare‑ups.
43He accepted he could sit comfortably for about an hour. He accepted he can walk at a reasonable pace, walk for 30 minutes or so. He accepted that he should be able to drive, perhaps with the qualification of his Mustang, comfortably for a couple of hours, but he noted that he was not someone who really did long driving. He accepted that he had, broadly, pretty good sleep.
44He was questioned about his left knee and what he had said to a medical panel, in the context of his weight at the time, and also, perhaps related to that, the fact that because of his left knee, he was not really running. I was left the impression, from his affidavit and oral evidence, that he was not someone who was a runner, for want of a better phrase, before he had hurt either his knee or his back; he was more of a walker. He accepted that he might still do some very light jogging with the dog – in the end described as run, stop, run, stop. He accepted that his primary exercise was in fact walking. He accepted he still goes to the gym, where he tries to walk on a treadmill or do some light weights.
45He was cross‑examined about some of his evidence in his affidavits about swimming. I think it is fair to say he is not someone who was a regular swimmer.
46He was cross‑examined about a more recent trip to India and how he was able to manage that, including the long flight and then some relatively lengthy car trips. He explained how that was something of a journey to hand over the baton of a religious observance of the passing of his father.
47About his old Mustang, he exhibited some photographs of the old Mustang, described how he could not get the same pleasure from it because the harsh suspension made it difficult to drive.
48Again, the inference I got from the totality of his evidence was that the activity of showing the Mustang and it staring in music videos and the like was perhaps one back more so in the early 2000s. Although no‑one specifically put this, I note as an observation that car seats do not go very well in the back of an old Mustang and I have a sense that perhaps life had taken the plaintiff in other directions.
49But nevertheless, I accept that the ability to restore and maintain his old Mustang is more difficult where he now has what I consider to be a light‑work back. However, he accepted that it was a classic car and not one that was an everyday drive. It still gets started occasionally ‑ more recently, apparently his son has done that ‑ but the evidence is that some of the car shows and things, where he might have seized the opportunity to take the car, or indeed on a nice sunny day when he might have dropped the roof and gone for a drive with the love of his life, are now activities that he avoids.
50In re‑examination, he explained how his back injury had impaired his ability to engage in tasks such as driving the Mustang, housework, gardening and cooking. He confirmed that the flare‑ups, in part, are dependent upon the weather. He confirmed that the flare‑ups vary in intensity. At times, apart from Nurofen, he uses a topical ointment, described by him as Rapigel or Deep Heat. He confirmed that he takes over‑the‑counter medication by way of Nurofen for a flare‑up. That might be several times in a week or a couple of days, depending on the flare‑up.
51He gave some evidence about the handover of the memorial service for his father. He explained how he felt out of place hosting that ceremony if he could not fully participate in it and he said to me ‑ I thought somewhat poignantly ‑ that he thought his father's spirit would prefer that someone else took over the religious significance of observing his father's death rather than he doing it in a less‑than‑complete way.
52In respect of submissions, before I get to the evidence of ‑ the limited medical evidence, I think I can sum them up by saying this: the parties agree with just about everything except the result. There is no argument that the plaintiff has aggravated degenerative change in his spine. Notwithstanding the opinion of Associate Professor Buzzard, the defendant does not seek to argue that the work aggravation has ceased. So in other words, the defendant accepts that the plaintiff has a persisting low‑back problem.
53The difference of opinion between the plaintiff and the defendant is whether or not the plaintiff has made out a very considerable consequence.
54Counsel for the defendant, appropriately, highlighted what the plaintiff has retained by way of work, social, domestic and recreational activity, as well as the limited treatment. Overall, the submission was that when the court looks at what is retained, even in the context of what the plaintiff has lost, then he has not made out a 'very considerable' consequence.
55Perhaps it could be said, presenting the other side of the same argument, on the other hand the plaintiff argued that in fact one should look at what he has lost in a consideration for an assessment of whether he has made out a 'very considerable' consequence.
56Appropriately, on behalf of the plaintiff, it was submitted that this is a case which is about the sum of the parts rather than one or two stand‑out consequences. On behalf of the plaintiff, it was contended that when those consequences are aggregated ‑ that is, the pain and suffering consequences are aggregated ‑ they do reach the well‑known 'very considerable' test. It was said that the court should accept that the plaintiff is a stoic man who has done the right thing by getting back to work and not dropped his bundle.
57About that, I should say this: the plaintiff struck me as a somewhat talkative, but likeable, man in the witness box. I accept that at times he has some pain or discomfort associated with doing his work but, as I understand the evidence, there are also periods at work, and periods outside work, where he either does not have any pain or has only minimal or mild pain.
58The well‑known comment by Appeal Justice Nettle, as he then was, that it would be wrong headed if a stoic was to be judged differently to a person who might otherwise have more readily succumbed to her or his pain, is an authority of which I am well aware and have regard to.[6] But I do not consider this to be a case about a stoic, in the sense of someone who has constant, intractable pain and yet, in the face of that pain, is battling on at work.
[6] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
59Whilst the plaintiff might broadly pass the good‑bloke test, for want of a better phrase, by staying at work and putting up with some pain and discomfort, I am not sure he is at that level of the stoic, battling intractable pain and staying at work. Whether or not much turns on that might ultimately be a moot point.
60Turning then to the medical evidence. I have touched on the treating general practitioner, Dr Javed. For completeness, the most recent report is at plaintiff's court book 64 and looks very similar to a couple of earlier reports. It describes a workplace injury causing soft tissue to the right elbow and wrist and upper and lower spinal injuries, causing disc injuries and nerve pain, leading to radiation.
61Dr Javed briefly notes the treatment. About surgery, she said, 'Not at this point. May require a neurosurgeon in the future. Capacity for pre‑injury work? No. Capacity for modified duties and plaintiff working with modified duties and restrictions.'
62Dr Javed described the pain as moderate and some impact on social and recreational.
63I have touched on the physiotherapist, Mr La Scala's report.
64The medico‑legal evidence the plaintiff relied on is confined to, firstly, a report from Mr Thomas Kossmann, dated 3 June 2025. He is an orthopaedic surgeon; and secondly, the plaintiff relied on a report from the occupational physician, Dr Robyn Horsley, dated 7 August 2025.
65In respect of Mr Kossmann, that report commences at plaintiff's court book 68. He obtained a history of the onset of symptoms. He also described the plaintiff's present complaints,[7] and the plaintiff describing to him injuries that have a severe impact on his social, domestic and recreational activities; a complaint of pain in the upper and lower back; and when it is cold, he has more symptoms.
[7] PCB 71
66Mr Kossmann had a history of the plaintiff having difficulty putting on his socks and shoes and his wife cutting his toenails. He had a history of difficulty sleeping and difficulty walking long distances.
67He conducted a physical examination, which noted some restriction of lumbar movements in particular. He diagnosed the aggravation of lumbar spine spondylosis. For completeness, he diagnosed that in all of the cervical, thoracic and lumbar spines. He said the plaintiff had pain in his upper and lower back and when it was cold he had more symptoms. He repeated some of the evidence earlier in his report.
68Mr Kossmann described the prognosis as 'guarded'.[8] He said the plaintiff may need more treatment with medication and anti‑inflammatories. He may benefit from physiotherapy, but that would need to be monitored closely.
[8] PCB 77
69He went on to say that the plaintiff may suffer further degenerative changes in his spine, for which he may require further treatment according to his symptoms. It is a little tricky, at that point, to know whether he is talking there about the progression of the underlying condition or the work aggravation.
70What he goes on to say, though, is that the chances of that progression would be low if the plaintiff adhered to his recommendations about work capacity.
71In a fairly florid paragraph, Mr Kossmann described the plaintiff's physically demanding role in the pulp yard since 2011.[9] He went on to say that the plaintiff's current employment is not appropriate for him because the plaintiff continued to suffer flare‑ups. He said the plaintiff was at risk of becoming permanently incapacitated for employment and should transition to a supervisory or sedentary role. He said he thought the plaintiff could do such job on a full‑time basis.
[9] PCB 78
72He recommended that the plaintiff avoid walking long distances, walking on uneven ground, walking up stairs and down stairs, walking on inclines and declines, climbing up and down ladders, kneeling or squatting and carrying heavy items weighing more than 2 to 5 kilos.
73Mr Kossmann said the plaintiff should permanently avoid working with his upper extremities and working above shoulder height and that those restrictions would continue for the foreseeable future.
74He then answered some specific questions, which repeated much of the earlier content of his report.
75Whilst I have regard to Mr Kossmann's opinion, in particular about diagnosis and how the condition is causally related to work, I think Mr Kossmann, to some extent, misunderstood or ignores the fact that the plaintiff is lucky enough to be in employment which does not have many of the characteristics, such as the need to climb up and down ladders or walk on uneven ground or to walk for long distances, that he mentioned in his report.
76In that regard, I place lesser weight on Mr Kossmann's opinion about the risk that the plaintiff's current employment might cause a deterioration of his underlying condition, bad enough that it might lead to surgery.
77Next, and more relevantly, is the opinion from Dr Robyn Horsley. In her report of 7 August 2025, Dr Horsley obtained what I consider to be a pretty good account of the plaintiff's past history, his occupational history and his current problems, including about his left knee.
78In her clinical examination, she said the plaintiff presented as a straightforward gentleman.[10] She noted some mild tenderness to the spine on palpation, which I note is an objective finding unlikely to be able to be feigned. She noted some restriction of movement in the spine, not dissimilar to those found by Mr Kossmann.
[10] PCB 84
79She said the plaintiff suffered injury to the thoracolumbar spine in the incident at work in June 21 removing the wires from a chemical bale. She noted the radiology, which she said supported her conclusion about that.
80She described the plaintiff presenting with ongoing mechanical back pain, which he self‑manages, with no referred or radicular component. She noted he was working full‑time.
81She said about the prognosis that the symptoms were likely to persist. The plaintiff would benefit from self‑management, including home exercises and walking, and occasional visits to the physiotherapist, which broadly is what he is doing.
82Dr Horsley said, that the plaintiff was coping because the nature of his work has changed over time.[11] The PM3 manual machine has been closed down. The PM4 machine and the pulp yard are now his primary duties. She noted the plaintiff worked alone and was able to self‑pace and he described the workload as about half of what the PM4 could produce, so overall his workload, as I understand it, since the PM3 machine was discontinued, has reduced by about 25 per cent.
[11] PCB 86
83She said the plaintiff described his job as safe because Sorbent's primary customer required a certain percentage of Australian product. He described how most of the job was automated; most of the work was at waist height. The plaintiff told her that he believed he was working about 15 to 20 minutes in every hour.
84Appropriately, Dr Horsley noted the plaintiff's concern that if he lost this current job ‑ say, if the company closed down ‑ that he might find it difficult to find other appropriate work.
85Dr Horsley then set out a range of restrictions from his spine injury, including avoidance of repetitive reaching, pulling, lifting, static posture, truncal rotation, working in confined spaces. She advocated caution getting on and off a forklift and the use of the steps. She described his sitting tolerance of about an hour; static of 10 to 15 minutes; a dynamic standing tolerance of about 30 minutes; et cetera. She said overall the plaintiff was coping in his current job.
86She described the prognosis is for ongoing mechanical back pain. She said the degenerative process will slowly accelerate. She said at that point there was no specific indication for surgical management.
87She repeated a lot of that at plaintiff’s court book 87, when she was asked a question about whether the plaintiff was fit for work, and she repeated her prognosis.
88Pausing here. I consider Dr Horsley, as I say, to have a pretty good history and I consider her opinion to be balanced and one that I accept. It is a more balanced than the opinion from Mr Kossmann.
89The only other medical evidence is that tendered by the defendant, which included a report from Associate Professor Anthony Buzzard dated 10 November 2022.[12] The passage of time since that opinion was provided, including the significant change in the plaintiff's work duties, means it is of little assistance, particularly in circumstances where Associate Professor Buzzard thought that the plaintiff's ongoing degenerative condition, and not any work involvement, was the explanation for any ongoing symptoms.
[12] Defendant’s Court Book (“DCB”) 26
90But insofar as Associate Professor Buzzard thought the plaintiff was fit for full‑time work, the best evidence of that is the fact that the plaintiff continues to work full‑time.
91The only other evidence was a very early opinion from Dr Umberto Boffa, an occupational physician who saw the plaintiff for a worksite assessment on 16 October 2021 and provided a short report,[13] broadly, in which he opined that the plaintiff was fit for a return to work and should progress to full‑time hour. In that sense, his opinion has proven to be correct.
[13] DCB 24
92The defendant touched briefly on a note from the physiotherapist and also the medical panel opinion. The fact of the matter is that the plaintiff himself accepts that he does not require much by way of physiotherapy and that is consistent with what the physiotherapist has had to say.
93The medical panel opinion is about the plaintiff's left knee. In a certificate of opinion given on 19 June 2023,[14] the panel opined that the plaintiff had made a satisfactory recovery from his left knee condition but, in my words, still had a need to be careful and had some intermittent issues with his knee.
[14] DCB 193
94Tying some threads together for the result, there is no one size fits all. A 'very considerable' consequence is the onus that the individual plaintiff bears, based on the evidence in a particular case but, as I said at the outset, in the setting where the court must also consider the possible range of impairments and impairment consequences and not just those that come before the courts.
95In that context, one thing is clear: that the ongoing back injury has not been catastrophic, which, for the plaintiff, is probably a good thing. But there is force in the submissions of the defendant that, broadly, the plaintiff does not have much by way of interference with sleep; any restriction for walking or exercising the dog appears to be minimal. The plaintiff, insofar as he relied on consequences such as swimming, I think that falls away because he was not doing much of that beforehand.
96He is still able to practise his faith at the temple. He is still able to observe some religious ceremonies. He does some work around the house, including some cooking. So in that sense, his ability to do domestic and recreational activities has not been destroyed. Obviously, he was able to sit on a plane to fly overseas and sit in a car to travel some distance to visit his wife's home town and his home town.
97True it is that there are court authorities, such as Haden Engineering Pty Ltd v McKinnon,[15] that say that in assessing the described experience of pain, it is not only an assessment of subjective complaint but it is also a task of the court to inform itself by looking at what the plaintiff does about the pain and, here, as the defendant highlighted, the plaintiff does not do much.
[15] [2010] VSCA 69
98But, on my assessment of the evidence, the plaintiff is really doing what he has been advised to do: that is, to try and find a job that he can cope with; to avoid aggravating factors; where necessary, to seek physiotherapy treatment; to continue with a home‑based program and a program of walking; and, where necessary, to use over‑the‑counter painkillers.
99There is no real evidence in this proceeding that the plaintiff should take something stronger, but I am also cognisant of his lived experience of a brother who battled addiction and I can understand his concern about why he would not want to go down the path of using something stronger. But again, I do not think much turns on that because no‑one is really suggesting that this is a case in which he should be taking something stronger.
100The plaintiff, as I acknowledged, contended that this was a case that was a sum of the parts rather than any one, big‑ticket item. The sum of those parts include the fact that the plaintiff has had ongoing low‑back pain since 2021. It should not be ignored that the symptoms are such that, on my assessment, he is now restricted for manual work. He has had the, as I said, fortunate happenstance of a workplace where the machines have been ‑ one has been decommissioned and the machine that he is required to operate is a relatively light job. True it is that it is not a made‑up job, but there was no real contest on the evidence that it is a light job.
101I accept the plaintiff's evidence that if he was to lose his current employment and was to go back into the open labour market, he might have difficulty finding a similar job.
102True it is that the claim is pain and suffering only and so therefore any concern about future employment is a more limited concern, and, equally, in this proceeding there is no real evidence that his job is at risk and I have already mentioned the plaintiff's own evidence, which seems to be that for so long as one of the defendant's major customers insists on some Australian‑made product, his job is not at risk at all.
103In that context, the evidence about the risk to his employment is more limited, even in the Ellis sense. Nevertheless, the fact that he is now restricted ongoing for unrestricted employment and has some concern about what might happen in the future is a relevant consideration.
104I accept the plaintiff's evidence that there are periods when he has no pain but, as I understand the evidence, they are the exception rather than the rule. As I understand his evidence, broadly, most of the time he has low‑grade or mild pain, sitting at somewhere as 2 or 3 out of 10. I accept his evidence that the colder weather seems to be an aggravating factor and I accept his evidence, as I understand it, that either because of activity at work or when he generally is more active or the weather is worse, he can have a flare‑up that is 7 to 9 out of 10.
105I accept his evidence that when he has a flare‑up, he might take between four and eight Nurofen over a period of several days, or perhaps a week. I accept on those occasions he needs to be careful with his back and be more mindful of what he does, which might include skipping his regular program of walking or going to the gym.
106I accept that he continues to do home‑based exercises and some exercise in the gym, which broadly seems consistent with the advice given to him by the physiotherapist.
107I accept the evidence in his affidavit that his back injury has impacted on the personal aspect of the relationship with his wife. I accept that he has difficulty with the heavier housework and perhaps more of that burden falls on his children or his wife.
108I accept that whilst he may have scaled back some of the activities he was doing with the Mustang, nevertheless he has been less active in restoring his Mustang and I thought the turn of phrase on his behalf, that the Mustang, and the photos of it in his most recent affidavit, is something of a symbolic representation of how his life has been transformed. He still has the Mustang, and perhaps he still gets some limited pleasure from it, but not at the level that he used to and, broadly, that is really his evidence about many aspects of his life.
109It may or may not be clear, but, despite a relatively short recess, I have grappled with the outcome of this case. There are some cases that come before the courts where it is clear, I think, what the result is going to be before the evidence has been heard; either that the injury is serious or it is not. There are some that are more opaque and I consider this to be one of those cases.
110I think broadly what tips it over the line into a 'very considerable' consequence is the fact that the plaintiff still has symptoms by going to work. True it is that they are not debilitating in the sense that he cannot go to work, but I accept that there are aspects of his ongoing employment that, in my words, stir up his pain. I accept he has a flare‑up from time to time and a level of 9 out of 10 is very bad. I accept that he requires modification of a range of daily activity. I accept that he needs to use over‑the‑counter painkillers from time to time.
111The plaintiff is still a relatively young man. Hopefully for him, he has 15 years or so of employment in front of him. There is no suggestion in this case that there is going to be some spontaneous or further recovery in his symptoms and, perhaps, if anything, he might get worse. But even if he does not get worse, I accept that the level of symptoms and restrictions that he now has are permanent and will continue. In my words, the plaintiff has a permanent light‑work back that translates into a permanent light restriction for pleasurable activities.
112In the synthesis and balancing act of the subjective evidence, in combination with the objective evidence, in my view this one just gets over the line to a 'very considerable' consequence and that I consider to be the correct result.
113I will hear from the parties as to consequential orders.
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