Kanongataa v Godfrey Hirst Aust Pty Ltd
[2025] VCC 1070
•1 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-05585
| FEAOMOENGALU KANONGATAA | Plaintiff |
| v | |
| GODREY HIRST AUST PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 June 2025 | |
DATE OF JUDGMENT: | 1 August 2025 | |
CASE MAY BE CITED AS: | Kanongataa v Godfrey Hirst Aust Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1070 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Work accident – injury to the hip – injury to the spine – causation – work capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Findlay v Transport Accident Commission [2025] VSCA 126; Queensland v Masson [2020] HCA 28; Richter v Driscoll [2016] 51 VR 95; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to commence a common law proceeding for pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Spencer KC with Ms S Lean | Ryan Carlisle Thomas |
| For the Defendant | Mr M Clarke | Russell Kennedy Lawyers |
HIS HONOUR:
Introduction
1Mr Feaomoengalu Kanongataa (“the plaintiff”) was born in Tonga in 1969, where he completed school after Year 7 and then at some point commenced paid work. In approximately 1987 he migrated to New Zealand and commenced, but did not complete, a warehousing certificate. In 2001, he migrated to Australia.
2Since leaving school, the plaintiff has worked at different times as a warehouse worker, forklift driver, labourer, storeman, farmhand, and in customer service at a casino. All the work he has undertaken is broadly capable of being described as manual work.
3In February 2011, the plaintiff commenced work in a warehouse for Godfrey Hirst (“the defendant”), a manufacturer of carpet and flooring. As part of his work for the defendant he drove a type of forklift in the warehouse.
4On 3 November 2017, the plaintiff was driving a high-reach forklift in the defendant’s warehouse when it stopped unexpectedly on two occasions, each causing him to leap from the forklift and land heavily on his left leg (these events are collectively referred to as “the incident”).
This proceeding
5This is an application for “serious injury” brought by the plaintiff pursuant to s325 of the Workplace Injury rehabilitation and Compensation Act 2013 (“the WIRC Act”), in which he sought the leave of the Court to commence a common law proceeding for pain and suffering and loss of earning capacity damages.
6The plaintiff claimed that because of the incident he suffered a compensable injury to each of the left lower limb (essentially the left hip) and the spine (low back). He claimed that each injury was a “serious injury” for both pain and suffering and loss of earnings.
7The proceeding was conducted in the usual manner. The parties tendered documents from court books, including affidavits, medical reports and the like. The plaintiff presented for cross-examination.
8I have considered all the relevant tendered evidence, together with the transcript of the plaintiff’s oral evidence and the parties’ submissions.
9The relevant legal principles are well established and do not need to be set out in detail. Briefly, it is the plaintiff who has the overall onus to establish a “serious injury”. But because he relied separately upon injury to the left lower limb and spine, he must establish whether one or the other of those injuries are related to his work with the defendant and are “serious”, keeping in mind that he cannot combine injuries for the purposes of “serious injury”.
Issues for determination
10For this proceeding, the defendant accepted that the incident occurred and that it caused the plaintiff to suffer a compensable injury to the left hip, requiring surgery on two occasions, including a total left hip replacement.
11Further, the defendant conceded that the compensable left hip injury was a “serious injury” as defined in s325(2) of the WIRC Act as having caused at least “very considerable” pain and suffering consequences.[1]
[1] Transcript (“T”) 103, Line (“L”) 28-31
12However, the defendant disputed that the left hip injury had caused the plaintiff to suffer a “very considerable” pecuniary loss to entitle him to the leave of the Court to commence a proceeding for loss of earnings.
13Regarding the claimed serious injury to the low back, the defendant’s primary contention was that any back injury was not causally related to the incident.
14As a fall back to the primary contention, the defendant submitted that any compensable back injury had not caused the plaintiff to suffer a “very considerable” pecuniary disadvantage. There was also no concession that any back injury was “serious” in respect to pain and suffering consequences, although no specific submission was made about that.
15As is the usual practice, medical practitioners were not required to give oral evidence. In respect to the claimed back injury, I am to assess causation for the purposes of a gateway provision,[2] without the benefit of the complete evidence that might be available at a common law trial.
[2]Findlay v Transport Accident Commission [2025] VSCA 126
The plaintiff as a witness
16Before setting out and analysing the relevant evidence, for context, it is necessary to set out some observations about the plaintiff as a witness.
17For this application, the plaintiff swore three affidavits respectively on 26 April 2023,[3] 15 May 2025[4] and 17 June 2025.[5]
[3]Plaintiff’s Court Book (“PCB”) 14
[4]PCB 20
[5]PCB 27
18The plaintiff gave oral evidence and was cross-examined about what he said in his affidavits, and histories he had given to doctors or set out in other documents.
19Without wishing to be disrespectful, the plaintiff struck me as a pleasant and unsophisticated man, perhaps consistent with his relatively low level of education and work history.
20During his oral evidence I formed the opinion that the plaintiff had difficulty comprehending what was being asked of him. He appeared to agree with propositions where he may not truly have understood what he was agreeing with. To illustrate this point, during re‑examination the plaintiff was asked about treatment with a physiotherapist and whether he recalled what areas the physiotherapist had been treating. The plaintiff said that he did not remember the area, “but I know how to get there”.[6]
[6]T 75, L 8
21The plaintiff’s presentation as an unsophisticated person with comprehension difficulties is in stark contrast to some of what was contained in his affidavits.
22While the affidavits were sworn by the plaintiff and said to be true and correct, it is obvious that they were drafted by lawyers. The first two affidavits in particular read like legal documents, rather than the evidence of a lay witness, let alone evidence from an unsophisticated lay witness. As an example, in his first affidavit the plaintiff said how he had sustained a serious injury to his left lower limb, left hip, spine, and a severe psychiatric condition. That speaks of someone who understands the legal distinction contained in the WIRC Act between a serious physical injury and a severe psychiatric injury. That is clearly the work of lawyers.
23I am reminded at this juncture of what was said about witness statements drafted by lawyers by Justices Nettle and Gordon JJ in Queensland v Masson[7] as follows –
“The oft unspoken reality that lay witness statements are liable to be workshopped, amended and settled by lawyers, the risk that lay and, therefore, understandably deferential witnesses do not quibble with many of the changes made by lawyers in the process – because the changes do not appear to many lay witnesses necessarily to alter the meaning of what they intended to convey – and the danger that, when such changes are later subjected to a curial analysis of the kind undertaken in this matter, they are found to be productive of a different meaning from that which the witness intended, means that the approach of basing decisions on the ipsissima verba of civil litigation lay witness statements is highly problematic. It is the oral evidence of the witness, and usually, therefore, the trial judge's assessment of it, that is of paramount importance.”
[footnotes omitted]
[7] [2020] HCA 28
24In final address, the plaintiff urged the Court to consider the evidence in his third affidavit as best representing his evidence about the onset of his injuries, and to ignore errors in the earlier affidavits. The problem with that submission is that in his third affidavit the plaintiff confirmed that the contents of the previous affidavits as true and correct.
25In my opinion, the plaintiff’s oral evidence was mostly the most reliable evidence from him. The obvious discrepancies and lawyers’ language in his affidavits should not be used against him but, having said that, where he bears the overall evidentiary onus, if his evidence does not meet the onus, even if that is not his doing, it remains a problem for him.
26The defendant did not seek to impugn the plaintiff’s credit in the sense of suggesting he was a dishonest witness. Rather, in my view appropriately and accurately, the defendant submitted that the plaintiff was an unreliable witness. The defendant submitted that the Court could not rely on several key pieces of his evidence.[8]
[8] T 88, L 23-30
27About the issue of the affidavits and his unreliability, the plaintiff conceded why the Court might have reservations about his affidavit evidence and his reliability.[9] However, he submitted that the evidence in his third affidavit broadly lined up and that the whole of the objective evidence broadly supported his claimed serious injuries.
[9] T 107, L 23-25
28In my opinion, the unreliability of the plaintiff means that his evidence must be carefully weighed in context of the other evidence. I consider that I should be slow to accept his uncorroborated evidence, especially the parts of his evidence that appear to be a construct by the lawyers.
The evidence
Plaintiff’s affidavit evidence
29In any event, dealing with the evidence, commencing with the plaintiff’s affidavit evidence. In his first affidavit the plaintiff described the incident, how he jumped out of the forklift and felt immediate pain in his left hip and left knee. He said, “I also went on to develop pain in my right hip and back.”
30Pausing, the plaintiff has a pre-existing left knee condition, which may have been aggravated by the incident but, on the evidence, has returned to the level of symptomatology that existed before the incident. In addition, to the extent that the plaintiff now has symptoms in his right hip, he conceded that the right hip is not related to the left hip and does not form part of the serious injury application.
31In the first affidavit, the plaintiff described how he underwent a left hip arthroscopy on 13 May 2020 and a left total hip replacement on 28 April 2021. Both operations were performed by Mr Camdon Fary, orthopaedic surgeon. The plaintiff then set out his ongoing left hip symptoms, treatment, and restrictions as follows:
“As a result of my injuries, particularly my left hip injury, I have difficulty with the following:
(a) Sitting for long periods.
(b) Standing for long periods.
(c) Heavy lifting.
(d) Bending and twisting.
(e) Shopping. I find it hard to do a big shop, as this leads to pain. I therefore try to do more regular and smaller shops or ask for help.
(f) Driving. I find it hard to drive for long periods of time. This often causes me to seize up. I try to limit my driving.
(g) Sleeping. I often wake due to pain. I find it hard to get comfortable in bed. I am often exhausted during the day as a result.
(h) Running. I now avoid this, as it is too painful.
(i) Bending to wash and dry my feet or put on shoes.
(j) Getting dressed. It is hard to stand on one leg whilst putting on pants. I now usually sit down to do this.
(k) Cleaning. I try to do light cleaning, however this often leads to an increase in pain. My children often help with this now.
(I) Walking up and down stairs or inclines. This quickly leads to increased hip pain. Walking on uneven surfaces, such as sand, also leads to increased hip pain.
(m) Playing and interacting with my grandchildren. I feel limited in my ability to hold them, chase them, play with them and teach them sports. I feel really upset about this, as family is very important to me.
(n) Interacting freely with my own children. I feel as though they have really missed out on a lot. After they lost their mum, it was so important to me to take care of them well. I feel as though my ability to do this has been limited as a result of my injuries. I am limited in the places I can take them, the walking I can do with them, the games I can play with them and things I can teach them. I now rely upon them more than I want to, and this makes me feel very guilty. This really upsets me.
(o) Working. I would much prefer to work if I felt able to, however I do not believe this is a possibility for me given my symptoms and work history. I do not believe I could return to any of my prior jobs and I would struggle with office work, as I am not great with computers or reading and writing.
(p) Going on outings, which involve a lot of walking.
(q) Doing weights and training at the gym, which I used to enjoy.”[10]
[10]PCB 18-19
32In the first affidavit, the plaintiff said about his back pain that:
“I feel as though my back pain and right hip pain came on after my injury as a result of the different way that I started to move. It became particularly bad after my surgeries.”[11]
[11]PCB 17
33Pausing again, the plaintiff submitted that he had either suffered injury to the low back in the incident, or because of an altered gait after the left hip injury, or because of both the incident and altered gait. The defendant, on the other hand, pointed to the medical evidence that it said supported a conclusion that, either way, the low back was unrelated.
34In his second affidavit, the plaintiff repeated the evidence of his symptoms and ongoing treatment. He described how he underwent an L4-5 decompression and fusion on 21 June 2024, which was performed by the orthopaedic surgeon, Mr Nathan Anderson.
35In his second affidavit, the explained difficulty accessing treatment for the low back due to funding issues, because he does not have an accepted Workcover claim for the low back.
36In the second affidavit, the plaintiff set out restrictions separately from his left hip and low back.
“As a result of my left hip injury, I have difficulty:
(a) Lifting anything heavy. This quickly leads to pain.
(b) Lifting objects and carrying them for a long period of time.
(c) Squatting.
(d) Sleeping. It is painful to lie on my left side. If I accidentally roll onto my left side, this causes me to wake.
(e) Working. My left hip injury made it too difficult to continue working. I would much prefer to be working if I felt capable of this. It has been very difficult being unable to work. I have lost my sense of purpose and pride.
(f) Climbing stairs, ladders and hills. I try to avoid these things now.
(g) Walking for long periods of time.
(h) Standing for long periods of time.
(i) Sitting for long periods of time
(j) Doing any strenuous things at the gym. I considered myself to be strong before my injury. I am now much weaker in comparison. This upsets me.
(k) Having an intimate relationship with my partner. This has been affected greatly and is limited and painful.
(I) Driving long distances. I find this causes pain. I need to get out of the car and move around on a long road trip, to loosen up my hip.
(m)Lifting heavy items when grocery shopping. I often go with someone else when I do this.
(n) Looking after my grandchildren and playing freely with them. As I cannot move as well as I used to or move as quickly as I used to, I am limited in the things I can do with them. It is hard to chase them, play sports, get on the ground with them and lift them. This makes me feel very sad.
(0)Bending down to tie my shoes. I have to sit down in order to do this.
(p)Getting dressed. It is hard to stand on one leg to put on pants. I feel less stable and balanced now. I usually sit down in order to do this.
(q) Performing household tasks such as vacuuming and mopping. This puts pressure on my hip. I try to do this slowly and carefully or seek help.
(r) Walking on uneven surfaces, such as the beach. I find this quickly leads to pain, which is upsetting, as I used to enjoy this.
(s) Going on outings, which require a lot of walking.
(t) Socializing. It is hard to go out and enjoy myself, when I am so often in pain and am uncomfortable.
I also continue to experience ongoing pain in my back. The pain travels up my back and to my head, and down to my feet. The pain is constant. It varies between a sharp pain and an aching pain.
I also find the constancy of my back pain difficult to cope with.
I have restricted movement in my back.
I have to move carefully, to avoid causing my back pain to flare up.
As a result of the injury to my spine, I have difficulty:
(a) Performing any tasks involving bending.
(b) Twisting.
(c) Sitting for long periods.
(d)Standing for long periods.
(e)Sleeping. I find it hard to get comfortable at night. I also find that this causes me to wake during the night.
(f) Lifting and carrying heavy items.
(g) Bending and lifting at the same time.
(h) Lifting heavy weights at the gym. This quickly causes increased back pain. I am therefore not as strong as I used to be. I used to really enjoy the gym.
(i) Jogging. This quickly leads to an increase in pain.
(j) Socializing. I find it hard to go out and enjoy myself, when I am so often in pain.
(k) Playing pickleball. I tried to take this up after my injury, however I have been unable to continue with this as it caused too much pain.
(I) Forming relationships. It was difficult to take my now wife out, as I was limited in the things we could do together. We ended up going on a lot of coffee dates.
(m)Bending and twisting.
(n) Shopping. I find it painful in particular to bend into the trolley or bend down low to retrieve an item.
(0) Driving for long periods. This often causes my back to seize up.
(p) Bending to wash my feet and dry them.
(q) Socializing. I feel limited in the ways that I can socialize. It is painful to do things such as go out for dinner to sit on a hard chair.”[12]
[12]PCB 23-25
37Next, in his third affidavit, the plaintiff provided more detail about the incident, the onset of low back pain and of ongoing claimed impairment consequences. He said:
“On 3 November 2017 when the forklift I was driving first suddenly stopped and I landed heavily on my left side, it felt to me like something snapped on my left side. As well as feeling immediate pain in my left hip and left knee, I had pain all down my left side including around my left hip, left buttock and low back and down my left leg.
I tried to stretch out the pain and continue to work my normal duties, but when I was driving the forklift again, the same thing happened and I had to jump out of my seat again and I had pain in the same location, but it was more severe.
I reported what had happened to the mechanic who then told me to have a break while the vehicle was looked at. During the break, the pain in my left hip, low back and down my left leg worsened, and I reported this to my employer and an incident report was completed.
I left work and went to see my general practitioner. When I went to the doctor, he focussed on the pain around my left hip area and left knee which was the most severe of my left sided pain at that time.
I had some investigations performed that I was told identified left hip problem and that became the focus of my treatment at the start. To me the pain in my left hip and low back often felt like it was in one block, and I relied on my doctors who initially told me the pain was due to a problem in my left hip rather than my low back. However, over time I became more aware of pain in my low back which also seemed to me to be worsened by limping and moving differently due to my left hip pain and that then led to me having treatment for my low back including the surgery performed last year. The surgery helped with the numbness, but the pain is still there.
I try to go for walks generally two to three times a week for around 40 to 60 minutes or so to get me out of the house, but I have more pain in my low back and left hip when I get back from the walks and often have a hot bath to try to relieve the pain. When I go for walks or long drives and when I tried to play pickleball, I wear a supportive back brace with hard bits in it. I generally wear a stretch back brace to support my back every day. The times that I tried to play pickleball, it didn’t go well. Although I felt ok when I was playing, after I finished I was in a lot of pain including in my left hip and low back.
I refer to paragraph 4 of my first affidavit. My first language is Tongan, I am not good with numbers and I have no computer skills. The jobs I have done have all involved physical work. I have never done an office job, and I don’t believe that I could do one with my limited English skills and lack of computer skills.
I refer to paragraph 6 of my first affidavit. The work I did at the casino was mostly delivery work. I was required to push heavy trolleys around to deliver food for hotels and I otherwise performed work that required me to put away uniforms.
There is an error in paragraph 13 of my first affidavit which should state that I believe that I last worked in around May 2020 and that my employment was terminated in about February 2021.”[13]
[13] PCB 27-29
38As can be seen, in the third affidavit the plaintiff retreated, at least in part, from the evidence in his first affidavit that the low back injury was caused by, in his words, the different way he began to move after the hip injury and surgery. Instead, he provided evidence of reporting low back pain on the day of the incident, how the doctors initially focused on his left hip, and it was only after the initial surgery on the left hip that the ongoing problem with his low back became obvious to him.
39The change in the way that the plaintiff put his case about the low back injury in his affidavits became something of a focus during his oral evidence, as I shall soon discuss.
The evidence in the incident report
40To interrupt the narrative of the plaintiff’s evidence for a moment, he tendered an undated incident report[14] that the parties accept was completed by him soon after the incident and given to the defendant. In response to a pro forma question on the incident report as to the nature of the injury, the plaintiff wrote “hip and left knee up to my lower back”.
[14] PCB 267
41However, in response to another pro forma question on the incident report form about what precise body parts were affected, the plaintiff wrote “left knee”.
42As set out, the plaintiff made passing reference to the incident report in his third affidavit. His case was opened on the basis that the incident report was evidence of a contemporaneous complaint of back pain made on the day of the incident. In final address the plaintiff submitted that the incident report was significant because in it he was reporting the area of pain to include his low back.[15]
[15] T 105, L 1-7
43On the other hand, the defendant relied on the evidence in the incident report in support of the contention that there was no report of back pain on the day of the incident.
44I shall analyse the medical evidence in due course. But the plaintiff accepted that, at the earliest, there was no record created by a health practitioner of what might be interpreted as a description by him of low back pain until 24 November 2017, when he attended the general practitioner (“GP”), Dr Frank Xia, who recorded: “Some improvement of L hip/knee. The hip is still painful after prolonged sitting. The pain goes up to low back sometimes”.[16]
[16] PCB 210
45The plaintiff was challenged in cross-examination about what was written in the incident report. It was suggested to him that what he was really trying to convey in the incident report was that he had pain in the area from the left knee up to about the lower back. He said:
“I'm - to me, I don't really understand the meaning of it on that time, to make a difference between injury and pain. I know - understand that I got pain in my body, from my knee up to my lower back, but I don't know what's happened there.
Yes, I mean ‑ ‑ ‑?‑‑‑That's exactly what I am trying to get there.
Exactly, and you see on that form you don't mention your left hip, do you?‑‑‑I put there from my knee up to my lower back.
Yes?‑‑‑I got what you asked, yes, but it shows there.
But - I put that to you because clearly you're not saying - you don't know you have got a left hip injury. You just know you have got pain in the area?‑‑‑Yeah, look, I'm not a doctor, I don't know that.”[17]
[17]T 52, L 20 – T 53, L 3
46It is here that the issue of the deferential witness and the unreliability of the plaintiff’s affidavit evidence again rears its head. While there was some effort by the plaintiff in the third affidavit to reference the incident report as a contemporaneous complaint of low back pain, considering his oral evidence and his overall unreliability, it is hard to accept that he genuinely believed the incident report to be a complaint he made of low back pain. Having seen him in the witness box and in consideration of the attempt to construct a case in the third affidavit, I am left with the impression that again the deferential witness has adopted a thesis constructed by his lawyers.
47I accept the submission of the defendant about the incident report, namely that it is not the missing link in the chain of causation but rather is a record of the plaintiff identifying the area of pain from the left knee, up through the hip to the level of his low back,[18] consistent with a left hip injury, but not of a low back pain as such.
[18] T 92, L 20-27
The plaintiff’s oral evidence
48The plaintiff was subject to cross-examination and re-examination. The cross-examination focused on several areas in dispute, including the plaintiff’s reporting of any low back symptoms, the onset of low back symptoms, the extent of symptoms generally in the left hip and low back, as well as the plaintiff’s work history, residual capacity for employment and residual capacity for day-to-day activity.
49I formed the view that the plaintiff attempted to answer questions put to him in an honest manner, but with the caveat that he was unreliable. I repeat my conclusion that the plaintiff often answered without comprehending the question. At other times, he appeared to give an answer because he felt compelled to do so. On a few occasions, including when cross-examined about the incident report, he appeared to give evidence in a way that suggested his evidence may have been influenced by conferences that occurred outside of Court, even if that was not a deliberate construct.
50In other words, sticking with the incident report, it was hard to escape a sense that attempts by him to suggest the incident report was a contemporaneous complaint of low back pain, was a construct probably influenced by that document being put to him in discussions with his legal advisers for the purpose of drafting his third affidavit.
51Therefore, the plaintiff’s oral evidence, even if the most reliable evidence from him, like his affidavit evidence, still needs to be carefully scrutinised in the light of the available objective evidence, before accepting what he had to say.
Cross-examination
52Dealing with some matters arising out of the cross-examination, the plaintiff was asked questions about the extent of symptoms in his back following back surgery in 2024. He agreed there had been an improvement to his back since that surgery.[19] He said despite having had back and hip surgery, he had not made any attempts to look for work because his job involved a lot of lifting, “sitting long, standing long” and caused him a lot of pain. He was asked whether he had considered doing anything other than forklift driving and he said no. He agreed that he had not reached maximum improvement from his back.[20]
[19]T 15, L 5-6
[20] T 15, L 30
53The thrust of the initial cross-examination was that the plaintiff still had further improvement in him and that was relevant to whether he would get back to work. He said that he wanted to get back to work, but that where he was right now, he did not feel he was ready. When asked why he was not ready, he said he got a lot of pain everywhere in his whole body but especially his hip and low back.[21]
[21] T 16
54About the pain in his hip, it was put to him that the pain was in his right hip and that was the big problem for him. He said, “my right hip and lower back”.[22] Further, about the right hip he said he had no plan for that to be treated because for now his focus was on his left and lower back.[23]
[22] T 16, L 29-30
[23] T 17, L 1-2
55Later in the cross-examination, it was again put to him that the right hip and lower back were his major problems. The plaintiff said “No it’s not. It’s my left hip and my lower back”.[24]
[24] T 17, L 23-25
56The plaintiff was then challenged about what he had said earlier in his cross-examination about his right hip and lower back being the major problems. He said “Did I say that? … I don’t think so”.[25]
[25] T 17, L 26-29
57Pausing, I think this is probably an example of the plaintiff’s lack of comprehension causing confusion in his oral evidence.
58The plaintiff was then cross-examined about the left hip. He said he still saw the physiotherapist, the osteopath and had a gym membership. He gave evidence about exercises that he does for the left hip and about a regular program of walking around a park and doing some squatting.[26]
[26] T 19, L 16-18
59Regarding the left hip, he was asked whether that would stop him getting in and out of a forklift. He said “No, it’s the longer I stay there – it’s hard for me when – especially when you climb up and you go down, because you can’t go straight out”.[27] He went on to say getting into a forklift would hurt and where he was right now he could not drive it throughout the course of the day.
[27] T 19, L 22-27
60Although, in response to being asked the same question on several occasions, namely whether his left hip would prevent him from getting into a forklift, the plaintiff eventually said he was suggesting that his left hip would stop him from getting into a forklift.[28]
[28] T 21, L 1-3
61With hindsight, it may be that I should not have allowed the same or similar question to be asked several times. Then again, the fact that it was, and the fact that the plaintiff’s evidence eventually changed, highlights my conclusion that at times he took the path of least resistance and gave an answer because he felt compelled to do so.
62In any event, the plaintiff accepted that he could still get into a car and that he drove a car most days. He gave evidence of driving his children to or from school[29] and driving himself to medical appointments and the like. He gave evidence about driving to meet friends to go walking around the park, and that it took about 30 minutes to drive to the park.
[29]T 24, L 31 - T 25, L 1-2
63Later, in cross-examination, when asked about whether he had taken his son to school this week, the plaintiff said he had not because he had been in a lot of pain and that the pain was in “my whole body”.[30] The plaintiff then gave evidence about widespread pain that most of the time never goes away.
[30] T 25, L 19
64It is hard to understand what he was attempting to describe or how such widespread pain could relate to one or the other of the claimed serious injuries. Although on this issue of widespread pain, he went on to say that after the left hip surgery he found the pain going down to the palm of his feet, up to his fingers, into his head and shoulders.
65The plaintiff was asked about current medication. He said he took Lyrica every day, sometimes more and sometimes less and continued to use Panadol every day.
66The plaintiff was cross-examined about shopping.[31] He said sometimes he did it but only if he needed to do a small shop. He said he had trouble carrying heavy stuff.
[31] T 29, L 8-11
67Again illustrating comprehension difficulties, the cross-examiner said that he (the cross-examiner) was interested in whether the plaintiff could pick up a bag that had 4 litres of milk and some bananas and cheese in it, to which the plaintiff replied: “I think that is a very good idea to me”.[32] This suggested that his answer related to the good idea of the use of the bag to carry items. Later he said that picking up shopping would cause pain in his lower back and hip.
[32] T 30, L 1-3
68Next, the plaintiff was cross-examined about some of the histories given to doctors. Here, his oral evidence was often of little use because for the most part, he said he did not recall what he had said to various doctors.[33]
[33] T 35, L 4-5
69The plaintiff was asked about where he had pain before having a left hip arthroscopy. He said “Left hip, lower back, and referred down to my leg most of the time and going up”.
70Next, he was asked what he meant by going up and said:
“When I started the pain I don't know where it's coming from, my hip or my lower back that time. But when it's getting worse, it is going up to my shoulder, head and going down. It's like the pain is trebled ‑ ‑ ‑”[34]
[34]T 37, L 11-15
71Next, the plaintiff accepted that what he had told the medico-legal examiner, Dr Robyn Horsley, was accurate, namely that his left hip pain had improved considerably after surgery.[35] What he had said to Dr Horsley was then explored further as follows:
[35]T 38, L 24
“About once a week he experiences discomfort in the left hip that lasts from 30 to 60 minutes." Is that correct?---Yes. I remember that one there. I'm talking about the once a week that's when it was getting a bit too much then the normal pan that I had. It go over the pain, the limit of the pain that I have.
Do you say there's always pain in your left hip?---It's always but I can control the pain there but what I'm saying to Robyn once a week was go beyond the thing that I can't control the pain.
So about once a week for 30 to 60 minutes you can't control your left hip pain?---Yes.
But the rest of the time it's manageable?---Yes, I can use the tablet there.
You can keep doing things like walking - - - ?---Yes, before they have that pain that go over the limit that I can't control, I can't do anything over that. Like I said before to you that most of the time when the pain is too much I can't do anything.
But now, currently, you have significant pain in your left hip 30 to 60 minutes a week?---That's right.
About once a week?---About once a week but when the pain is go beyond my control.
So the rest of the time you can manage your left hip?---Yes, I can manage it with the help of the tablets.
With those tablets, I suggest if your left hip was your only problem, you could get back to work?---Right where I am right now, I promise you I can't.
I know it's difficult, there's a lot of different problems but just talking - - -?---It's a lot of - - -
- - - about your left hip?---Yep.
Pretend your back and your right hip and your left hip and pain everywhere wasn't a problem and your only issue was this left hip, you agree you could go back to work?---How can I do my job? How? That's my question there.
But what's stopping you from doing - - -?---The pain, the pain that I go through.”[36]
[36]T 38, L 25 – T 39, L 30
72Next, the plaintiff was asked, if the pain was manageable, why he could not get back to work just looking at the left hip. He said “How can I do that? Is that going to cause me more pain if I go back to work and do the things I can’t do?”[37]
[37]T 40, L 10-12
73The plaintiff then described a pain that he said started from his left hip, lower back and “then go everywhere”. He was asked:
“So this pain where you can't tell where it's from, how do you say to the court it's starting from the left hip?---Before I do my lower back surgery, I can't tell. But when the back surgery done the numbness of most of them are gone. I only start to get numbness when the pain start and then refer everywhere and then I know exactly where the pain's come from. It always start from my left hip but before I had my back surgery I can't tell where the pain's come from and I tell that to my GP, I tell that to Camdon Fary but now I know exactly where the pain's come from.
So does that mean sometimes you don't have any pain and sometimes you do have pain?---Every time I got pain, every single – it never go away, the pain is always there. Even Dr Nathan said to me I need to take my tablets because the pain never go away. The pain is always going to be there but the numbness it will go that's why I mentioned before - - -
Dr Horsley writes this in her report ‘Mr Kanongataa stated that his increasing issue is his right hip.’ Do you recall telling Dr Horsley that?---Yes.
‘His right hip was an issue before his lower back surgery’?---No.
That's wrong?---That's wrong.
When did your right hip become an issue?---The right hip I realised that after my lower back surgery.
‘He stated that it mentioned it to Dr Cunningham and to Mr Fary.’ This is your right hip. ‘The pain is now occurring every day.’ Is that correct?---That's right.
‘It lasts for about 30 minutes.’ Is that right?---The lower hip, the right hip?
The right hip?---Sorry, I don't remember I say it lasts for - - -
What's the reality? Does it last for 30 minutes or is it just there constantly?---The right hip it's just come and go. When the pain is too much on my left, I feel it on my right too but I don't really have any problem at all with it. As soon as I take the tablets it's gone.
She notes in your report, ‘It varies’ – this is your pain in your right hip – ‘on the visual analogue scale from five to seven to eight out of 10.’ Does that sound correct?---Sorry, I don't remember that.
‘It is aggravated’ – this is your right hip – ‘by prolonged walking, standing and sitting.’ Is that correct?---I don't remember.
Don't worry about whether you recall saying it or not but is your right hip aggravated by prolonged walking, standing and sitting?---Yes, I do.
Does it radiate into the groin and into your buttock?---Yes.
It's noted here that it doesn't go down into your right knee, is that correct?---No.
So it does go into your knee or it doesn't?---It doesn't.
And you've got no issues with your right knee?---No.
She also notes you've had a 50/50 improvement in your overall physical capacity since your back surgery in June last year. Do you recall saying that?---Yes, I do.
And is that still the case? I will say yes.
You have still got back pain most of the time but it's now six to seven out of ten, not ten out of ten? Can you repeat that? I can't understand what's six or ten out of ten.
Okay. It actually states he still experiences back pain most of the time? Yep.”[38]
[38]T 40, L 26 – T 42, L 26
74Then, about his back pain and what he had told Dr Horsley, the plaintiff was asked whether it was correct that he had no back pain until he had been walking for about 40 minutes. He said:
“That's not the right answer for it. I remember I tell them - I tell her after about ten to 15 minutes' walking, the pain starts to come, it's getting worser and worser, and it go up.
He can generally walk between 40 to 60 minutes? Yes, I do.
Yes. Your standing tolerance is about 40 minutes? Yes, I do.
Your sitting tolerance is about an hour? Yes, I do.”[39]
[39]T 43, L 16-22
75The plaintiff was then asked about whether he had back issues or back pain before the incident. He said that he did have.[40]
[40]T 44, L 30
76He was then cross-examined about a few attendances at GPs for back pain from as far back as 18 November 2008. The purpose of that cross-examination was revealed when it was put to the plaintiff that he had several occasions of back pain before the incident where he could not recall what had caused the sore back on any of those occasions. In that setting, it was put to the plaintiff that he did not experience any pain in his lower back on the day of the incident and he only experienced lower back pain later, to which he said “I – my recall, I remember I put down lower back too”.[41]
[41]T 48, L 2-3
77Next, the plaintiff was cross-examined about his first affidavit and the evidence in that which suggested that the immediate pain after the incident had been in the left hip and left knee, and that it was not until later on that he developed pain in his right hip and back. The plaintiff said “That’s wrong”.[42]
[42]T 49, L 9
78Although when the plaintiff was taken for the second time to the evidence in his first affidavit of immediate pain in his left hip and left knee, and asked whether that was correct, contrary to his earlier oral evidence, he said “It is”.[43]
[43]T 50, L 7
79Then, about the evidence in the first affidavit that said he went on to develop pain in his low back and how that was accurate, the plaintiff said “I can’t explain it”.[44]
[44]T 50, L 13
80It was at this point in the cross-examination that the incident report was introduced, which I have already discussed.
81Dealing with events after the incident, the plaintiff confirmed that he finished work and attended the GP, Dr Luu. He was taken to the doctor’s note that recorded pain on the left knee and hip but said he could not recall telling Dr Luu of that.[45]
[45]T 53, L 24
82It was suggested to the plaintiff that there was no mention about back pain in the early entries of attendances for treatment because he did not have any issues with his low back, to which he said “Disagree”.[46]
[46]T 54
83The plaintiff was then cross-examined about what he said to the orthopaedic surgeon, Mr Camdon Fary, when he saw him on 8 November 2017, and again how there was no mention of any lower back pain. It was suggested to the plaintiff that he made no mention to Mr Fary because at that time he did not have any problem with his lower back, to which he again said “Disagree”.[47]
[47]T 55
84Next, the plaintiff was cross-examined about a medico-legal examination with a Dr Barclay Reid on 14 December 2017,[48] and how Dr Reid did not obtain a history of any problem with the low back. Again, it was suggested that the doctor did not get a history because there was no problem at that point in time, to which the plaintiff said “Disagree”.[49]
[48]Defendant’s Court Book (“DCB”) 41
[49]T 55, L 12
85The plaintiff was then cross-examined about attendances on the GP, Dr Xia, and how the first identified complaint for back pain to Dr Xia was on 13 December 2019. He was asked whether he agreed that he did not have any ongoing issue with his lower back before then, and said:
“Do I agree or disagree?
Yes, do you agree? Yeah.
What I am saying is during that time, you didn't have any ongoing issue with your lower back? I disagree with that.
Is your evidence to the court that you have in effect experienced constant lower back pain since 3 November 2017? Yes, that's right.
Yes. Well, I suggest that that is not the case and – actually I'll withdraw that. You're aware, Mr Kanongataa, that whether your back injury is related to this incident in November 2017 is a significant issue in this case?---Could you rephrase that?
You're aware that the defendant says your back injury is not caused by the incident?---It was part of the accident, my lower back because I was write it on the note.
Is that the only basis that you believe it that you ‘low back’ on the incident report form?---I'm speaking from what I feel that day.
What I'm suggesting to you is there's a whole raft of medical notes and attendances on doctors over the next two years where you make no complaint of any back problem because you didn't have one?---All the notes from after that it's – when I see – do the reconciliation that the insurance never want to be part of it.
I suggest what you're saying now is that the back pain relates all the way back to the incident in November 2017 because you think that will assist your case?---I don't use that, what's happened on that day.
This further further affidavit – you know the affidavit you swore yesterday?---Can you repeat that?
You swore an affidavit yesterday, do you remember that?---Yes, I do.
In that affidavit you talk about the incident and your back pain. Do you recall that?---Yes, I do.
Could the witness please be shown plaintiff's court book 28, Your Honour? (To witness) Do you see paragraph 7, this talks about after you'd had the incident and you say you had pain in your hip, your buttock, your lower back and then your left leg and that you reported an incident report and then it says, ‘I left work and went to see my general practitioner. When I went to the doctor, he focused on the pain around my left hip area and left knee which was the most severe on my left side of the pain at that time.’ Do you see that?---Yes, I do.
Why did you put that in the affidavit?---I didn't put this in on that.
Is that what you recall?---I read this and I understand this but I – at that time I got this I know that I forget where the pain was. I mean - - -
When you read that, do you think that you didn't have any pain in your lower back?---I didn't say I don't have pain.
Then the next paragraph says, ‘I had some investigations performed that I was told identified left hip problem and that became the focus of my treatment at the start.’ Do you see that?---Yes, I do.
Do you mean to say that they told you you had a left hip problem so you assumed that was causing the pain in your lower back?---I got the pain problem on the day that I have.
Is this paragraph supposed to be an explanation as to why it's not recorded to doctors that you've got lower back pain in 2017 and 2018?---Is that Dr Xia's report?
No, this is your affidavit?---The pains in my body was like – I can't separate the pain to see exactly where the pain is. It's like the whole pain is over my whole body especially in here so I can't really telling you that specific where the pain's from.”[50]
[50]T 56, L 15 – T 58, L 20
86Next, the plaintiff was cross-examined about attendance on a Medical Panel and how he had told the Panel he had suffered persistent low back pain since the left hip arthroscopy in May 2020. Once again, he said “Disagree”.[51]
[51]T 58, L 29
87The cross-examination then moved more generally to the plaintiff’s residual capacity for physical activity, regardless of which injury or condition was being discussed.
88Specifically, the plaintiff was cross-examined about playing pickleball. The plaintiff said he had played pickleball recently, but did not play every week, usually once a fortnight, although sometimes once a week. He played it with friends in Footscray at a gym, but he did not play in a competition. He had played from December 2024. A game of pickleball took about 10-15 minutes a game. He said he played a game and then had a break when the pain came on. If he felt better, he would push on again. He said the maximum number of games he might play is three.[52]
[52]T 61 and T 62
89Next, the plaintiff said, when asked if he was going to keep playing pickleball, that:
“No, I stopped because I feel if I continue to play it's hurt more. I feel good when I play, it build my strength up but after that I'm going downhill.
You played on Monday, didn't you?---Yes, I do.
So are you going to play next week?---No, I don't.
So you decided as of Monday no more pickleball?---If I feel – if I can't do my exercise, I would rather go and do that be he's pushed me to exercise on it.”[53]
[53]T 62, L 29 – T 63, L 6
90The plaintiff was asked why he had suddenly decided on Monday of the week of the hearing to stop playing pickleball and said, “because I feel like it’s getting hurt, it’s going – too much but that’s the only place I hurt”.[54]
[54]T 63, L 20-21
91The plaintiff was then cross-examined about the affidavit he swore on 15 May 2025 and the evidence in that, that he had tried to take up pickleball after the injury but had been unable to continue because of too much pain. His explanation for that was:
“I stopped for one whole week, and I feel like I need to do something to help me. I'm not a type of a person who want to stay and watch TV; I love to get fit and get well and get strong. I try my best to do whatever I can. I know I'm not going to be 100 per cent, but I try the best I can.
So you say - when you swore this affidavit on 15 May this year, that was the week where you effectively stopped playing pickleball. Is that what you're saying to the court? No.
So you're saying that that - you hadn't stopped at the time you swore it, even though you say you had stopped? Yes.
When do you say you first - when you had this week you stopped? I don't recall that.
Okay, so again, why did you say in this affidavit that you had to stop because you had too much pain? Because I feel like I should stop because it's caused me a lot of pain, but more I stay at home, it's made me feel back to my grave, so
Yes, sure, but ---?--- I have to do something.
Yes, so you knew you were telling an untruth when you swore this affidavit? I don't. I tell the truth.
Well, you have just told the court you hadn't stopped, but the affidavit you say you had stopped? It must be a misunderstanding of what I do.
Do you think in reality you are going to go play pickleball next week? I don't.
No. Are you still going to do your exercises three to four times a week? I will try my best to do my exercises.”[55]
[55]T 65, L 16 – T 66, L 13
92Next, the plaintiff was taken back to his first affidavit sworn 26 April 2023, and his evidence in that affidavit about the back and right hip pain coming on because of the different way he started to move. About that he said “No, that’s not true”.[56]
[56]T 67, L 1
Re-examination
93The re-examination commenced with the topic of pickleball. Overall, the plaintiff said about pickleball that he had been struggling because of pain in the hip and lower back.[57]
[57]T 69, L 6
94Next, the plaintiff was re-examined about the effect that walking had on his pain. He was asked where does the pain get worse if he walks, and he said, “My knee, my hip – left hip, my lower back”.[58]
[58]T 70
95The plaintiff was asked what happened after he exercised as follows:
“Okay, and what happens after you finish those exercises you do? I have to go straight back home, have a hot bath, and then get changed and I have to lay down to release the pain out from my hip and my lower back and my knee.
And how long do you tend to have to lie down for to rest? Up to an hour, two hours sometimes. Yeah.
What about after you've finished a game of pickleball? What happens then? I do the same thing. I have to go back home and take my tablets, and do the same routine - have a hot bath, cold bath, and then take my pills and go to bed.
And what pills are you taking? Lyrica. If the pain is too much I double the dose. If it's okay, then I'll lower the dose.
And how often in an average week would you have to double your dose of Lyrica in that way? Sometimes twice. If I take it on Monday, I will take it towards Thursday, Wednesday or Thursday, and then the other days I have to go back to normal dose.
Okay, so you double your dose on Monday, you tend to double it again on Wednesday or Thursday, and you just take your normal dose on the other days? Yes, yes.
Yes, okay. Now, you said in answer to a question that you took 90 I think this morning of your Lyrica, is that right? Yes, I do. Yes, that's right.”[59]
[59]T 70, L 10 – T 71, L 3
96About the left hip, the plaintiff was re-examined as follows:
“Yes, okay. All right. Now, you were asked about your left hip pain, and you said there was some times [sic] where it gets beyond what you can control and you can't do anything. What happens then what happens to you? I have to take as much painkiller I can, or double the dose, or sometimes I take more than double to release it, and I have to take Panadol too - paracetamol too, to help me through that and take me another day to get up.
Get up --- ? --- After that.
Get up from where? From bed.
All right. And how often does that happen, that you have a bad flare-up like that and you need to rest for a long time?---Once a week, once a week I do that.
Does anything bring that on or is it just a random thing or does it come on particularly often after you do something?---It's come when I do exercise that I feel my body need it and I hate staying at home sometimes because the more I stay in bed or in the couch it cause more problems there and then I get out and start exercising it cause more problems there.”[60]
[60]T 72, L 9-28
97Next, the plaintiff was asked whether before the hip surgery he could tell if his pain was coming from his hip or low back and he said “No”.[61]
[61] T 73, L 12
Conclusions from the plaintiff’s evidence
98First, broadly I consider that in the witness box the plaintiff did his best to answer questions, to the extent that he comprehended the question, or felt compelled to answer.
99However, much of the plaintiff’s affidavit and oral evidence was inconsistent, hard to follow and unreliable.
100Therefore, even though the plaintiff was not a dishonest witness, he was an unreliable witness. There is no escaping the fact that much of his evidence was a reconstruction, probably because he was a deferential witness.
101Second, despite my reservations about his reliability, based on the contemporaneous objective evidence, there does seem little doubt, that the plaintiff suffered a left hip injury because of the incident, as conceded by the defendant.
102Like the defendant, I accept that the left hip injury caused sufficient symptoms so that the plaintiff required a left total hip replacement.
103Third, I also accept that for periods after the initial left hip injury, the plaintiff had an altered gait and placed pressure on other parts of his body, including the low back.
104Fourth, about the low back, the plaintiff’s affidavit and oral evidence about the onset of symptoms was unreliable. I do not accept that he was immediately aware of pain in his low back. I do not accept that the incident report was a contemporaneous record of low back pain. As I have explained, the better analysis is that the incident report is a description of pain from the left knee, through the left hip to about the level of the low back, but not a description of low back pain as such.
105Next, similarly, I do not accept that the plaintiff described low back pain at the attendance with Dr Xia on 24 November 2017. In fact, at that attendance he seems to have provided a description of symptoms like what was given in the incident report. Based on the whole of the reliable evidence, I conclude that it was a description primarily of left hip pain up to the level of low back, but not of a specific low back problem.
106Rather, as I shall get to, I conclude that the first clear report of low back pain made to Dr Xia was in December 2019.
107Fifth, a consideration of the whole of the medical evidence supports a conclusion that the low back became a problem for the plaintiff towards the end of 2019. From there, through the period that the plaintiff was undergoing hip surgery, the low back problem worsened, such that by December 2021, he was referred to Mr John Cunningham specifically because of his low back pain.
108Based on the conclusions expressed, one issue to resolve is whether the plaintiff has a work-related low back condition, either because there was an injury on the day of the incident, or because of an altered gait caused by the left hip injury. I shall return to answer this question after looking in more detail at the relevant medical evidence, but I will do so from the starting position that there was no contemporaneous complaint of low back pain.
The medical evidence
109I now move on to specifically consider the medical evidence.
110But before doing so, and for context, apart from the altered gait caused by the left hip injury, in the setting of a limited history of short-term, low back symptoms before the incident, there is no evidence of any other past or supervening event that might explain the onset of low back pain. Therefore, if the work with the defendant is not a cause of the low back condition, the only explanation for it is the progression of the underlying degenerative spine change.
Treaters
Dr Dac Luu, general practitioner
111Dr Dac Luu is a GP at the DHL-Medical Centre. Dr Luu provided a report dated 9 July 2018,[62] which confirmed that the plaintiff presented to the clinic on 3 November 2017 with a complaint of left knee and hip pain. Dr Luu recorded pain and tenderness on the left knee and hip. He described ordering an x-ray and CT scan, and then a referral to Mr Fary.
[62]PCB 69
112Dr Luu provided a second report also dated 9 July 2019 that does not add much to the discussion but said that he had not seen the plaintiff since 8 November 2017.[63]
[63]PCB 70
Dr Frank Xia, general practitioner
113Dr Frank Xia provided several reports about the plaintiff that were tendered in evidence. His clinical records were also tendered into evidence.
114In his first report dated 18 June 2018,[64] he described how the plaintiff first came to see him on 11 November 2017, with a complaint of left knee and hip pain post a fall at work one week ago. Dr Xia noted how the plaintiff had come to be seen by him because of the unavailability of Dr Luu.
[64]PCB 71
115Pausing, I have already set out the relevant part of Dr Xia’s clinical note of 24 November 2017[65] which recorded that “the pain goes up to low back sometimes”. I am fortified in my assessment that this is a recording of pain in the left hip up to the low back, as opposed to a report of back pain, because of what was said by Dr Xia in his reports and on a consideration of his clinical records.
[65] PCB 210
116The balance of Dr Xia’s report of 18 June 2018 described the left hip diagnosis and treatment.
117Dr Xia provided a further report dated 26 September 2019,[66] where he repeated much of his earlier report, but also described how the plaintiff had been to see him a few times since November 2017, complaining of left knee/hip pain. He said that the plaintiff suffered intermittent left knee and hip pain because of his injuries and set out a copy of the relevant clinical records related to the left knee and hip.
[66]PCB 73
118Dr Xia then reported for a third time on 8 November 2021.[67] In that report, Dr Xia noted the plaintiff had a left hip replacement in April 2021. Dr Xia said that, unfortunately, the plaintiff had “developed low back pain which referred to the back of his legs on both sides in July 2021”.[68] This is the first mention in any of the reports from Dr Xia of low back pain.
[67]PCB 77
[68]PCB 78
119Returning to his clinical notes, on 20 November 2019, Dr Xia had recorded that for the past 3 weeks the plaintiff had started to get right hip pain. He made a note of a clinical examination that included a finding of mildly restricted back flexion.[69] Then in a clinical entry of 13 December 2019, Dr Xia recorded “R hip pain has improved a bit, but now has developed low back pain”.[70] There are then several attendances on Dr Xia where the notes are silent about low back pain, until a record of an attendance on 10 August 2020, when Dr Xia recorded “Flare up of low back/L hip pain lately, Has talked to his orthopaedics, conservative treatment was recommended”.[71]
[69] PCB 192
[70] PCB 191
[71] PCB 186
120It is at this point in the clinical notes that Dr Xia began to regularly record low back pain, without recording any triggering event or cause.
121Next, returning to the evidence in reports, Dr Xia reported again on 28 February 2024, which is a similar report to his earlier ones.
122Then, Dr Xia reported again on 15 February 2025, in a more comprehensive report in which he was asked several questions about causation and capacity. The questions asked of Dr Xia on that occasion included specific questions about the plaintiff’s left hip, back and right hip as follows:
“2. Do you consider that our client's back and right hip pain are consequential injuries and therefore from part of the left hip injury? If so, kindly detail your reasons why?
It was not until 19/11/2019 when Mr Kanongataa came to see Dr Jason Pak, locum GP to this clinic. Mr Kanongataa reported that he had chronic left hip pain and had an ongoing dispute with workcover [sic] about this injury. He went to physiotherapy when L hip flare up and got temporary relief from treatment. However, Mr Kanongataa reported that recently he started to have similar pain in his right hip.
Mr Kanongataa came to see on 13/12/2019. He reported that his left hip pain still bothered him, his R hip pain has improved. However he started to develop low back pain.
From a medical point of view. pain in the right hip and lower back can be a consequence of pain in the left hip and knee due to the interconnected nature of the musculoskeletal system. When one joint is compromised, the body often compensates by putting extra stress on other nearby joints, leading to pain in those areas as well, particularly in the lower back and opposite hip.
3. Was out client's employment with Godfrey Hirst Australia Pty Ltd a contribution factor to his injuries/conditions including the injuries to the back and right hip?
I believe that employment with Godfrey Hirst Australia Pty Ltd was a contribution factor to Mr Kanongataa's left hip and left knee pain taking into account the mechanism of injury. While his right hip and low back pain are consequential injuries to his left hip/knee pain.”[72]
[72]PCB 89-90
123Next, Dr Xia was asked and answered questions about the plaintiff’s capacity for work. Dr Xia said:
“4. Capacity to perform his pre-injury employment.
(a) As a consequence of our client's left hip injury alone does our client have capacity to perform
i) Pre-injury employment?
Mr Kanongataa returned to work with pre-injury duties in 2018. However he came to see me with left hip pain multiple times from 2018 to 2020 when he managed his pain conservatively. He had no other options but re open the workcover [sic] case in May 2020 when Mr Kanongataa was referred to see Mr Camdon Fary, Orthopaedic surgeon who had taken over the care since.
I am of the opinion that Mr Kanongataa can not return to his pre-injury role as the job demands lies outside his capacity limits.
ii) Alternative suitable employment taking into account our client's incapacity, age, education, place of residence, skill and work experience on 3 November 2017?
I am of the opinion that Mr Kanongataa retains the capacity to work with restrictions, namely:
- Avoid push, pull, carry or lift over 10kg on an occasional basis and 5kg on a repetitive basis
- Avoid squatting
- Avoid kneeling
- Avoid walking on uneven ground
- Limited standing
- Limited climbing
5 Capacity to perform his pre-injury employment.
(a) As a consequence of our client's left knee injury alone does our client have capacity to perform
i) Pre-injury employment?
I am of the opinion that Mr Kanongataa can not return to his pre-injury role as the job demands lies outside his capacity limits.
ii) Alternative suitable employment taking into account our client's incapacity, age, education, place of residence, skill and work experience on 3 November 2017?
I am of the opinion that Mr Kanongataa retains the capacity to work with restrictions, namely:
- Avoid push, pull, carry or lift over 10kg on an occasional basis and 5kg on a repetitive basis
- Avoid squatting
- Avoid kneeling
- Avoid walking on uneven ground
- Limited standing
- Limited climbing
6 Capacity to perform his pre-injury employment.
(a) As a consequence of our client's back injury alone does our client have capacity to perform
i) Pre-injury employment?
I am of the opinion that Mr Kanongataa can not return to his pre-injury role as the job demands lies outside his capacity limits.
ii) Alternative suitable employment taking into account our client's incapacity, age, education, place of residence, skill and work experience on 3 November 2017?
I am of the opinion that Mr Kanongataa retains the capacity to work with restrictions, namely:
- Avoid push, pull, carry or lift over 10kg on an occasional basis and 5kg on a repetitive basis
- Avoid squatting
- Avoid kneeling
- Avoid walking on uneven ground
- Limited standing
- Limited climbing
7 Capacity to perform his pre-injury employment.
(a) As a consequence of our client's right hip injury alone does our client have capacity to perform
i) Pre-injury employment?
I am of the opinion that Mr Kanongataa can not return to his pre-injury role as the job demands lies outside his capacity limits.
ii) Alternative suitable employment taking into account our client's incapacity, age, education, place of residence, skill and work experience on 3 November 2017?
I am of the opinion that Mr Kanongataa retains the capacity to work with restrictions, namely:
- Avoid push, pull, carry or lift over 10kg on an occasional basis and 5kg on a repetitive basis
- Avoid squatting
- Avoid kneeling
- Avoid walking on uneven ground
- Limited standing
- Limited climbing [sic]”[73]
[73]PCB 90-92
124Dr Xia was then asked questions about the plaintiff’s prognosis, which he answered by saying depended on a number of factors. He was also asked questions about likely restrictions for social, domestic and recreational activities, which he answered by saying that the left hip and low back restricted the plaintiff for those activities.[74]
[74] PCB 90-92
125That is the extent of the relevant evidence from Dr Xia. A few things can be objectively taken from his evidence.
126First, when the plaintiff saw Dr Xia for the first time on 11 November 2017, he made mention of left knee and hip pain because of the incident, but no mention of back pain.
127Second, when the plaintiff re-attended Dr Xia on 24 November 2017, the doctor recorded a description of pain that was very similar to what the plaintiff gave in the incident report, being a painful hip and that: “The pain goes up to the low back sometimes”.[75] Where the plaintiff is unreliable and that note is at best equivocal about a complaint of low back pain, I am not prepared to accept it as a record of a complaint of low back pain.
[75] PCB 210
128Third, the clinical records of Dr Xia are then silent about any mention of back pain, until 13 December 2019, when the plaintiff is recorded as saying that he had then developed low back pain.
129I conclude that the plaintiff did not make a specific complaint to Dr Xia of low back pain until the attendance on 13 December 2019, and that no triggering cause for that back pain was recorded by Dr Xia.
130Fourth, about the cause of any low back problem, the thrust of the evidence from Dr Xia is not of a low back injury caused by the incident, but rather of a work-related back injury because of what Dr Xia described as the interconnected nature of the musculoskeletal system and the extra stress placed on the plaintiff’s low back by the compromised left hip.
131In this regard, there is strong evidence that the plaintiff had a compromised left hip, highlighted by the fact that he came to have two hip operations. Dr Xia’s opinion that the plaintiff had an interconnected back problem because of a compromised left hip, in my assessment, fits with the evidence as a whole.
Mr Camdon Fary, orthopaedic surgeon
132Mr Camdon Fary is one of the plaintiff’s treating orthopaedic surgeons. He provided a report dated 5 June 2018,[76] in which he confirmed he first reviewed the plaintiff on 8 November 2017 for a presentation of left hip and knee pain following a fall at work. He described how an MRI scan of 25 February 2018 demonstrated a left labral tear, consistent with clinical findings. He said that the plaintiff’s labral tear was likely to have been caused by his fall at work.
[76]PCB 95
133There were then tendered in evidence several items of correspondence from Mr Fary detailing his treatment to the plaintiff’s left hip, before the letter he wrote to Dr Xia on 20 July 2020, where he said that the plaintiff had developed quite marked L4-5 bilateral facet joint arthritis.[77]
[77]PCB 103
134Next, on 6 September 2021, Mr Fary wrote a request for Workcover approval for the plaintiff to have assessment of his chronic low back and hip pain, aggravated by his work injury, by a spinal surgeon.[78]
[78]PCB 116
135Mr Fary then reported to the plaintiff’s solicitors on 9 November 2021. He said:
“Feaomoengalu is a 52 year old gentleman who | first reviewed on the 9th of November 2017. He presented following an accident at work on the 3rd of November where, while driving a forklift, he was suddenly thrown from it onto the ground when he suddenly stopped. He landed on his left knee and hip, injuring both. In regards to his left knee, he had known PCL rupture and arthritis which he has aggravated and we have been managing conservatively since.
In regards to his left hip, he tore his labrum and ligamentum teres, and developed an osteochondral lesion. We trialed [sic] conservative management of his left hip injury which failed, and he had subsequent left hip arthroscopy which revealed areas of full thickness cartilage loss and advanced arthritis. His hip symptoms progressed and he required left total hip replacement on the 28th of April 2021.
Meaningful rehabilitation was limited from a combination of his progressive traumatically aggravated knee arthritis and his lumbar spine degenerative changes.
In regards to his lumbar spine degenerative changes, he had a spinal injection of local anaesthetic and steroid which gave him good relief for several months. In regards to his left knee arthritis, the limping aggravated his back and he has been overcompensating on his right hip which is now irritable as well.
COVID-19 restrictions prevented him from accessing hydrotherapy and a regular physiotherapist that delayed conservative management of his traumatic arthritis. With COVID-19 restrictions improving, he is returning to the pool however his lumbar spine degenerative changes and referred pain down his buttock and leg are causing severe difficulty with activities of daily living. He is due to see spinal surgeon Dr John Cunningham for review.
In regards to Feao's current physical injuries, with the combination of his lumbar spine, right hip, and left knee he is unable to return to his previous capacity of weight bearing physical work. He will require retraining for a less physical job, predominantly desk bound.
In regards to Feao's social, domestic, and recreational activities, the combination again of his lower back, left knee, and hip injuries will limit this into the foreseeable future.
In the future, he will require a left total knee replacement when he has exhausted and optimised conservative management. His right hip is likely to progress in a similar fashion. [sic]”[79]
[79]PCB 117-118
136Mr Fary wrote a further letter on 14 March 2024, setting out matters of history and treatment to the left hip. However, about the low back, Mr Fary said “Over this time, his lower back symptoms continued to progress which were masked by his hip injury”.[80]
[80]PCB 120
137The last piece of evidence from Mr Fary was a letter he wrote to Dr Xia on 12 September 2024, which was tendered by the defendant[81] and described his review of the plaintiff following an MRI of the plaintiff’s right hip.
[81]DCB 15
138The evidence from Mr Fary supports an initial left hip injury because of the incident, that caused a labral tear and impairment, including limping, that required surgery on two occasions.
139Mr Fary’s evidence also supports the same conclusion as I have reached from Dr Xia’s evidence, namely that there was no initial reporting of a low back problem. The earliest record from Mr Fary that provides a hint of a low back problem is his correspondence of 20 July 2020, where he diagnosed a problem at the L4-5 bilateral facet joints. That fits in time with the earliest complaint of low back pain to Dr Xia on 19 December 2019.
140Next, Mr Fary, again like Dr Xia, attributes the plaintiff’s low back symptoms to the aggravation of degenerative disease in the spine, caused by limping.
Mr John Cunningham, orthopaedic surgeon
141Mr John Cunningham is an orthopaedic surgeon to whom the plaintiff was referred. The plaintiff tendered several items of correspondence from Mr Cunningham. On 3 December 2021,[82] Mr Cunningham noted the plaintiff was suffering from an L4-5 degenerate spondylolisthesis. On 1 February 2022,[83] Mr Cunningham said the plaintiff had been suffering from left sciatica and neurogenic claudication “following an accident at work”. Also on 1 February 2022,[84] Mr Cunningham wrote that he thought the plaintiff was going to require a decompression and fusion at L4-5.
[82]PCB 122
[83]PCB 123
[84]PCB 124
142Apart from being part of the narrative of referrals for treatment, Dr Cunningham’s evidence is not useful for issues to do with causation or current impairment.
Dr Zeeshan Arain, medical practitioner
143Dr Zeeshan Arain is a medical practitioner from with Metro Pain Group, where the plaintiff was referred for assessment. The plaintiff tendered Dr Arain’s initial handwritten note of assessment and then several items of correspondence from Dr Arain.
144On 9 May 2023, Dr Arain wrote to Mr Fary and described issues as including “chronic lower back pain and hip pain after workplace accident 2017”. More specifically, he recorded a history of the plaintiff jumping out of the forklift and, since then, experiencing pain throughout his body but mainly on the left side.
145Next, Dr Arain wrote to the workers’ compensation insurer on 2 June 2023, seeking permission to perform bilateral L3, 4 and 5 medial branch blocks said to be “a direct result of the original injury”, but provided no path of reasoning to support that contention.[85]
[85]PCB 128
146Like Mr Cunningham, the evidence from Dr Arain is part of the narrative but otherwise not particularly useful for the issues for resolution.
Dr Matthew Dere, osteopath
147Dr Matthew Dere is an osteopath who has treated the plaintiff and provided a report dated 1 February 2024.[86]
[86]PCB 130
148Dr Dere described how he had treated the plaintiff since June 2021, for sharp pain in the left groin, greater trochanter and buttock after the plaintiff had a full left hip replacement on 28 April 2021.
149About the plaintiff’s ongoing condition and the low back, Dr Dere said as follows:
“Discussion
Feao came to me after having a full left hip replacement following unsuccessful surgery for a torn labrum. During this time between the initial injury, labral surgery and the eventual replacement, there would have been significant wasting of the hip stabilizing muscles as Feao was unable to properly perform hip strengthening exercises. This has made rehabilitation very difficult post-surgery as gluteal strength was very poor. Subsequently after the surgery Feao was progressed too quickly during his initial rehabilitation and re-injured his left hip and back when performing a 10kg weighted squat. It was after this incident that Feao saw me. Since then we have had various degrees of success with rehabilitation. Treatment has been focused on mobilization and strengthening of the hip and low back. This has been done through pool exercises, home theraband exercises, machine weights, laser, shockwave, dry needling and hands on treatment. Standing in the same position and walking for too long (>20-30 minutes) still and has always caused Feao buttock and lateral hip pain. His passive ROM has improved very well over the years as hip muscle tightness has reduced but this has not correlated into increased left hip active ROM especially standing. Since the hip replacement Feao’s ‘functional lower extremity score’ has hovered around 22-24/100 which is poor. He has had a significant gradual decline in his condition over the past year. We have never successfully progressed Feao from non weighted hip exercises to weight bearing. Non-weight bearing hip exercises have been fine for Feao with approximately 10-20% pre-injury maximum loading. Prior to the injury Feao was able to lift heavy weights in the gym so even low 10-20% is enough to maintain reasonable muscle tone.
His low back is having a significant impact on his hip as it restricts the amount of the load through the area. His S1, L5, and L4 nerve roots are impinged causing poor firing and proprioception of the hip stabilizing muscles resulting in poor gluteal medius, minimus, maximus and obturator internus activation. There is also nerve pain along these dermatomes and residual neuropathic pain confusing pain signals. Some of his numbness into the sole of the foot is coming from his nerve impingement but it is also coming from trigger points in his left vastus lateralis (quadriceps), gluteals and biceps femoris (hamstrings). It is very difficult to fully know if it is his hip or low back that is the contributing factor to his hip pain as they both are inextricably linked. Feao has been taking lyrica [sic] for approximately 2 years for his neuropathic pain but still experiences intermittent groin, lateral and posterior hip pain when walking or sitting for longer than 20-30 minutes. Feao is on the waiting list for low back surgery to address the disc and nerve root impingement. Only after the surgery will it be truly known if the hip will truly mend.”[87]
For 20 years he has worked as a forklift driver.
I asked him to describe the onset of symptoms and the mechanism.
He stated that in 2017 he found the forklift that he was driving would stop suddenly and he had to move rapidly from the forklift taking all of his weight on his left leg.
He described developing symptoms of numbness in the left lower limb, numbness in the lower back, discomfort in the left knee, pain in the lower back and pain in the left hip.
My understanding is that he consulted Mr Cam Fary who diagnosed him as having an abnormality of the left hip and he was investigated and an arthroscopy and local anaesthetic injection were performed but were of no benefit.
He had subsequently undergone a left total hip replacement and feels that has improved him from a symptom point of view.
He has subsequently developed low back pain and at first had (sic) Mr Fary arranged for a steroid injection into his back. More recently he has been referred to Mr John Cunningham who has diagnosed him as having a L4/5 spondylolisthesis and he has suggested a trial of a lumbar epidural injection. The surgery has not been formally requested.”[114]
[114]DCB 62
196Next, Associate Professor Love said that it was probable that the plaintiff’s spinal condition had been rendered symptomatic by the nature of the plaintiff’s employment.[115] He went on to say that the plaintiff would be unable to return to his pre-employment duties and recommended the plaintiff be given a trial of sedentary duties.[116]
[115]DCB 63
[116]DCB 64
Dr Graeme Doig, orthopaedic surgeon
197Dr Graeme Doig is an orthopaedic surgeon who examined the plaintiff at the request of the defendant and provided a report dated 30 December 2022.[117]
[117]DCB 74
198Dr Doig obtained a history for the purpose of an impairment assessment of the plaintiff’s left hip injury. In that context, he obtained a history of the incident, the development of left hip symptoms and the need for treatment. About that treatment, Mr Doig obtained a history that the plaintiff had undergone a left hip replacement in April 2021, which the plaintiff believed “has been unhelpful in relieving the symptoms”.[118]
[118]DCB 75
199About current symptoms, Dr Doig obtained a history of the plaintiff having generalised pain affecting his left lumbosacral area, left hip and left knee, requiring the use of Lyrica and Panadol.[119]
[119]DCB 75
200On clinical examination, Dr Doig noted the plaintiff to walk with a slight limp. He then went on to diagnose a soft tissue injury to the left hip with ligamentum teres and labral tears with a poor outcome from the surgery, including hip arthroplasty. He said the prognosis was poor with respect to returning to physically demanding employment and activities.[120]
[120]DCB 77
201Dr Doig then proceeded to provide an impairment assessment.
Mr Barclay Reid, general surgeon
202Turning to the reports as tendered specifically by the defendant, commencing with Mr Barclay Reid, who is a general surgeon and who examined the plaintiff at the request of the WorkCover Agent and provided a report dated 14 December 2017.[121]
[121]DCB 41
203Mr Reid obtained a history of injury as follows:
“The sequence of events was as follows. On the few days prior to the injury there was nothing unusual he did.
When he came into work on 03.11.2017, he was quite normal and had no pain anywhere. This was a Thursday. He came into work at 6 am. He worked using the forklift and noticed that the safety pedal on the forklift which operated the stopping of the forklift was stiffer than usual. However, he worked without incident until around 7:30 am. At about 7:30 am while he was riding the forklift the forklift suddenly stopped and he was partially ejected and partially jumped off in order to protect himself from falling on his head. The forklift was such that the seat faced sideways while the forklift moved forwards. There was a safety bar at the back of the forklift. When he was on the forklift the seat would be about half a meter off the ground level and his head would be about 1 m off the ground level. The forklift was travelling at a speed halfway between a brisk walk and a job. On stopping suddenly if he did nothing his right side would hit against the safety bar and he would fall over upside down on his head as has happened to another worker in an incident earlier in 2017.
In order to prevent this from happening he jumped off as he began falling and he landed on his left leg. He cannot remember whether his knee and hip were straight and whether he was in an erect position or a bent position as he landed. He felt an immediate pain in his left knee and left hip but it was not bad enough for him to stop working.
He got back on the forklift and continued working without further incident until about 8:30 am when the same thing happened and he partially fell and partially jumped off the forklift and landed in the same way. This time there was a more severe pain in the knee and the hip. He reported the incident straight away. A mechanic called Len arrived and checked the machine and also checked the error codes and found that there had been no errors reported. However, he loosened the pedal.”[122]
[122]DCB 42
204About the plaintiff’s condition at the time he assessed the plaintiff in December 2017, Mr Reid said:
“It is now five weeks since the injury. He has pain in his left knee to a level of about 5/10 and pain in the left hip to a level of 7/10. He also feels numbness in the muscle between the hip and the knee and has a feeling of numbness deep inside the thigh. He finds it difficult to sleep at night because of it. He does not usually stand in one place. He can walk for about 1 km before he has to stop because of the pain. He has returned to work and is doing normal duties eight hours per day and five days per week for a total of 40 hours per week.”[123]
[123]DCB 43
205Mr Reid then reviewed various investigations and completed taking a history from the plaintiff, before conducting an examination. He then said that the plaintiff’s presenting symptoms were pain in the left knee and left hip with pain worse on walking and reduction in the range of movement, mainly of the left hip.[124]
[124]DCB 45
206I note that Mr Reid described the plaintiff as a genuine and honest witness. There is some weight to attach to Mr Reid’s evidence, in my opinion, because he saw the plaintiff at an early stage and well-before any efforts had been made to construct a case for the plaintiff in the preparation of affidavit material. Mr Reid’s evidence supports my conclusion that there was no contemporaneous complaint of low back pain.
The Medical Panel Opinion
207The plaintiff was examined by a Medical Panel as part of the statutory benefits process for a consideration of the compensability of the low back condition. The Panel provided a Certificate of Opinion dated 18 October 2022, in which it opined that the plaintiff was not suffering from any intrinsic medical condition of the back relevant to the claimed injury. The Panel opined that the plaintiff was suffering from non-specific low back pain without radiculopathy.[125]
[125]DCB 67
208In its Reasons for Opinion, the Panel set out agreed facts, issues in dispute and a history of both the left hip injury and the low back condition. About the low back, the Panel obtained a history that the plaintiff had suffered from persistent low back pain since the left hip arthroscopy in May 2020.[126]
[126]DCB 69
209Ultimately, the Panel diagnosed the plaintiff as having radiologically demonstrated constitutional changes in his lumbar spine and that the left hip condition had not aggravated the back condition.[127]
[127]DCB 71
210In circumstances where the Panel’s Opinion was provided as part of the statutory benefits proceeding, it is not binding on this Court. I do note that the Panel disagreed with the opinions from Mr Fary and Dr Xia about the plaintiff’s low back. I also note that, as the plaintiff highlighted, it appears not to have been provided with relevant medical reports from Associate Professors Bruce Love and Esser. Further, in a consideration of the weight to attach to the Panel opinion, it is self-evident that the Panel did not have the benefit of the full evidence now before the Court.
Dr Clayton Thomas, consultant in rehabilitation and pain medicine
211Dr Clayton Thomas is a consultant in rehabilitation and pain medicine who has examined the plaintiff and provided reports for the defendant.
212The first report from Dr Thomas is dated 9 February 2023.[128]
[128]DCB 81
213About the onset of injury, Dr Thomas took a history as follows:
“He reported that the forklift that he was driving was a high-reach forklift. He indicated that it was faulty. On 3 November 2017, the forklift abruptly stopped. He fell out of the forklift. He fell onto the left side onto his left lower limb, hip and knee region.
He felt something snap he said in his back. He got back onto the high-reach forklift. Some 60 to 90 minutes later, the same thing happened and he fell off again. He reported this to his supervisor.
After the lunch period he reported that he had worsening of his pain. He reported pain from his head all the way down to his left knee. Everything was pulling. He sought medical care. He was sent for x-rays.”[129]
[129]DCB 82
214Dr Thomas took a history that the plaintiff’s predominant problem at that stage was low back pain, but that the plaintiff also had pain in the left hip and groin.[130]
[130]DCB 82
215Dr Thomas went on to conclude that the plaintiff had a left hip joint replacement which was technically successful, but that he had residual problems stemming from his non-work-related back component. He said that from the left hip perspective the plaintiff could return to pre-injury duties and hours, but from the back perspective he could not. Dr Thomas said that from a hip perspective, the plaintiff could return to his previous work duties without any specific limitations.[131]
[131]DCB 84
216Pausing here, in his report, Dr Thomas said that he took note of the Medical Panel Opinion. It does seem that, like Dr Horsley, Dr Thomas proceeded on the basis that the low back had been determined to be unrelated to work.
217Dr Thomas then provided a supplementary report dated 21 March 2023.[132] In that report he considered an enclosed Vocational Planning Report (from Nabenet) dated 17 January 2023. He described how he had previously assessed the plaintiff on 6 January 2023 and “At the time that I assessed him my understanding was that his work-related condition was his left hip joint pain but not his lower back pain”.[133]
[132]DCB 88
[133]Ibid
218Looking at the Vocational Planning Report, Dr Thomas said:
“1. Packer, light items. Physical demands are noted to be light. Stands constantly when working. Although I did not stipulate this in my original report to you, I do not believe that he could be in a position in which he is standing throughout the working day. He would need to have some flexibility to alter his posture. A sit-stand packing position would be reasonable but a position in which standing is constantly required is not reasonable.
2. Product assembler. I note that this is a sedentary to light physical demand level. Sitting is required to carry out assembly tasks. Standing occasionally on concrete floors and walks about work areas to move equipment. This is appropriate for him and within the limitations I placed on him.
3. Mobile speed camera operator. This is within the physical limitations of him and is appropriate for him.
4. Courier driver. Light items. This is reasonable and appropriate for him.
5. Hire controller rental officer. This is within his physical limitations.”[134]
[134]DCB 88-89
219Dr Thomas reported again on 19 June 2024, after re-examining the plaintiff.[135] In the report of 19 June 2024, Dr Thomas again took a history of the onset of injury and subsequent treatment and symptoms. He recorded lower backache and pain in the left lateral hip region.
[135]DCB 90
220Dr Thomas then answered specific questions. He said the plaintiff was likely to have backache going forward. He said that the left hip joint replacement had recovered well from surgery and there did not appear to be any residual problems relating to the plaintiff’s left hip. He also said there was no suggestion of surgery for the left hip, spine or left knee.
221Next, Dr Thomas said that he accepted the plaintiff had developed an osteoarthritic left hip for which he has undergone a hip joint replacement.
222Dr Thomas was then asked a question about the diagnosis of the plaintiff’s current spine condition.[136] In response to that question, Dr Thomas said “Aggravation of lower back spondylosis becoming symptomatic”. He then said that:
“The left hip is less clearcut. The labral tear probably came from that fall. He subsequently developed osteoarthritis of the left hip.
The aggravation to his back has remained.
…
The aggravation of his back is still materially contributed to by the worker's injury.”[137]
[136]Russell Kennedy referral letter dated 2 May 2024
[137]DCB 93
223Therefore, it appears that when Dr Thomas felt he was not shackled by the previous Medical Panel Opinion, he attributed the aggravation of degenerative changes in the plaintiff’s spine to the work incident.
224About capacity for work, Dr Thomas repeated his opinion that from the left hip alone, he thought the plaintiff could return to pre-injury duties. He said the primary restrictions related to the plaintiff’s spine. In his report, he described restrictions for sitting, standing and walking, which would effectively preclude the plaintiff from being fit for work.
225Dr Thomas reported again on 27 May 2025, asking for comment on Nabenet Vocational Planning Report of 17 January 2023 and Nabenet NES Labour Market Analysis Summary Report of 6 April 2023. He then answered questions as follows:
“1. Disregarding the contribution of any pre-existing or other nonwork-related conditions and looking at the alleged spine injury arising from the incident on 3 November 2017 in isolation, could the worker perform the duties detailed in the enclosed vocational assessment planning of Nabenet 17 January 2023 and NES labour market analysis summary report of Nabenet dated 6 April 2023.
I note the vocational planning report, 17 January 2023. I commented on the suitable employment options in my report to you dated 21 March 2023.
There is nothing that I have seen which would cause me to alter the opinion expressed in that report.
You have enclosed a new employment services and labour market analysis report, 6 April 2023:
Packer light items. Product assembler. Mobile speed camera operator. Courier driver. Hire controller renal officer.
These positions have been addressed in my report to you dated 21 March 2023 and there is no reason to alter the opinion expressed in those reports.
2.Describe the contribution of any pre-existing or other nonwork-related conditions and looking at the alleged left hip results from the incident on 3 November 2017, could the worker perform the duties detailed in the enclosed vocational assessment report from Nabenet, 17 January 2023 and new employment services market analysis summary report from 6 April 2023.
I think all positions are reasonable and appropriate for him. I think he can perform each of these positions in a full-time manner relating to the left hip insolation.
3.Disregarding the contribution of any pre-existing or other nonwork-related conditions and looking at the alleged left knee and left leg injuries resulting from the incident of 3 November 2017 in isolation, could the worker perform the duties in the enclosed vocational assessment and pain report,17 January 2023 and the NES labour market analysis summary report from 6 April 2023?
The positions listed are knee and left leg friendly. The positions listed are therefore appropriate and reasonable and he could perform each of these positions in a full-time manner.”[138]
[138]DCB 97-98
226In summary, overall, Dr Thomas provided equivocal support for the left hip as causally related to the incident. Ultimately, he supported a connection between the aggravation of lumbar degenerative change and the incident. He opined that the plaintiff’s left hip injury would not prevent him from returning to his pre-injury employment, but the low back condition effectively rendered the plaintiff unemployable.
Dr Francis Ghan, consultant orthopaedic surgeon
227Dr Francis Ghan is a consultant orthopaedic surgeon who examined the plaintiff at the request of the defendant and provided reports.
228Dr Ghan reported for the first time on 12 April 2024.[139] Dr Ghan obtained a history of the incident as follows:
“On 3 November 2017 Mr Kanongataa was driving and operating a forklift when the forklift came to a halt abruptly. He said when he jumped off the forklift he fell and landed on his left knee. He was able to stand up. He felt a strange sensation in his left thigh, like a snapping sensation. He continued working. Later that morning whilst driving the forklift he had the same incident, the forklift stopped by itself, and he again jumped from the forklift and aggravated his left leg. He reported the incident and he was sent home.
He consulted Dr Luu, his GP. He was referred to Dr Camdon Fary and he had two weeks off work and returned to work on normal duties in January 2018. He was working on and off because of ongoing left hip pain. He underwent a left hip arthroscopy on 13 May 2020. The left hip pain persisted and he underwent a left total hip replacement on 28 April 2021.
He has not worked since 2020. Currently he is on Centrelink with medical exemption.
Medications include Lyrica and Diclofenac. He is not job seeking.”[140]
[139]DCB 100
[140]DCB 101
229About the plaintiff’s current status, Dr Ghan recorded:
“Mr Kanongataa reported that his hip still hurts around the left groin region. He described it as if someone kicks him in the groin. He said because of his gait his right hip is now affected. He also described lower lumbar backache. He said he can walk at most ten minutes at a stretch. He can sit half an hour at a stretch before he has to stand up and do some stretching. He is able to drive. He does not do any housework or gardening. His children do the chores. He said his back pain is quite bad and he rated at 9/10. He said that the aches and pain in his left groin is intermittent.”[141]
[141]DCB 101
230Dr Ghan then reviewed various medical reports, radiology and related documents. He then summarised the situation as the plaintiff having suffered a left hip injury as a consequence of the incident. He said that the plaintiff “reports ongoing lumbar back pain and left knee pain”.[142]
[142]DCB 104
231Dr Ghan then offered the opinion that:
“In my opinion, the outcome of the left hip replacement has been satisfactory. The ongoing left knee symptoms are not work related (old injury). The lumbar spine has constitutional facet joint arthritis at L4-5 and is not work related.”[143]
[143]DCB 105
232Dr Ghan went on to say that the plaintiff’s left hip replacement was functioning well. He also said the plaintiff had good lumbar spine movement. He described the overall prognosis as good.
233Dr Ghan then offered comments about the plaintiff’s capacity for work, including that, on the left hip point of view, the plaintiff had a capacity for pre-injury duties, normal hours and for other jobs as set out in a Nabenet Report dated 19 April 2022. He also said that, from the spine point of view, the plaintiff had the capacity for pre-injury duties and for suitable duties.[144]
[144]DCB 107
234Dr Ghan then provided a supplementary report dated 2 June 2025.[145] For the purpose of that report, he was asked to review a Nabenet Vocational Planning Report dated 17 January 2023 and a Nabenet NES Labour Market Analysis Summary Report dated 6 April 2023. Having done so, he offered opinions about the plaintiff’s residual capacity for work.[146]
[145]DCB 111
[146]DCB 112
235There is an obvious weakness in the opinions from Dr Ghan about work insofar as they relate to the lumbar spine. Dr Ghan was of the opinion that the only treatment the plaintiff needed, when he conducted his only examination of the plaintiff on 2 April 2024, was for ongoing physiotherapy. That is a curious opinion in the context that the plaintiff went on to have lumbar surgery.
Dr Dominic Yong, specialist occupational physician
236Dr Dominic Yong is a specialist occupational physician who provided reports at the request of the defendant.
237Dr Yong met with the plaintiff and first reported on 16 April 2024.[147] It is clear from Dr Yong’s report that he was provided with a large number of medical records, medical reports and related documents. In that context, he took a history of the incident and that, as a consequence, the plaintiff felt a snapping sensation and pain around his left hip and low back, with radiation down his left leg to his left foot.
[147]DCB 115
238Dr Yong obtained a history that after the incident the plaintiff reported what happened to a mechanic and was told to take a break. Dr Yong recorded that in that period immediately after the incident the plaintiff was having increasing pain from his left hip, low back and down his left leg, and reported back to his employer.[148]
[148]DCB 119
239In any event, Dr Yong went on to obtain a history of current symptoms and the plaintiff’s occupational and social history. He conducted a clinical examination and reviewed radiological investigations. Having done so, he provided a summary and then answered specific questions. He said that the incident could reasonably lead to claimed conditions, including:
“Mr Kanongataa described the onset of his condition where he jumped off a forklift seat twice; and he had the onset of pain in his left hip, low back radiating down his leg to his left foot.
I do note from the referral documentation, the following contemporaneous medical documentation:
•Letter from orthopaedic surgeon, Mr Camdon Fary dated 08/11/17 reported the onset of ‘left knee and hip pain after a work injury last week’.
•Letter from treating doctor, Dr Dae Luu dated 9/7/18 reporting that Mr Kanongataa presented initially on 3/11/07 with ‘left knee and hip pain after injury which happened at work’.
I do note the reported onset of the symptoms after the incident. The workplace incident could reasonably lead to the claimed conditions in the Summary, including:
•Left hip soft tissue injury which was surgically treated, followed by left hip osteoarthritis which was surgically treated; with persisting left hip dysfunction and pain.
•Left knee soft tissue injury and aggravation of left knee osteoarthritis, with persisting left knee dysfunction.
•Low back discal and facet joint injury, with lumbar dysfunction and radicular features.
Therefore, the alleged injury has materially contributed to each of these conditions.
I do note the nature of the conditions and the treatment undertaken. I note the clinical course and the response to the treatment. I note that the symptoms in the back, left hip and left knee have not resolved.
Therefore, work is still a material contributing factor to these claimed conditions.”[149]
[149]DCB 129
240Dr Yong then went on to answer questions about capacity for employment. In doing so, he opined that the plaintiff did not have a current capacity to work his pre-injury duties.[150]
[150]DCB 131
241Next, Dr Yong discussed “suitable employment”. He did so in the context of a Nabenet Assessment Report dated 19 April 2022. In a lengthy report, he considered various jobs, several of which he said would require individual assessment to see if they complied with restrictions that he placed on the plaintiff’s physical capacity for work.
242Next, Dr Yong reported again on 25 May 2025.[151] In that report, he was asked questions and provided with a Vocational Planning Report by Nabenet dated 17 January 2023 and an NES Labour Market Analysis Summary Report by Nabenet dated 6 April 2023.
[151]DCB 146
243In a lengthy report, in which Dr Yong summarised his earlier opinions, he first noted that the plaintiff was due to have back surgery when he previously assessed him. He noted he had not assessed him since then and was unable to determine if there had been a significant change in his condition after the back operation, and if his restrictions had changed.[152]
[152]DCB 151
244About the left hip, he essentially repeated the opinions in his earlier report, namely that several jobs would require both restrictions and then individual assessment as to suitability. About the left hip, the easiest way to summarise Dr Yong’s opinion is to say that with restrictions, some reservation and individual assessment, he did not go so far as to write the plaintiff off as having a current capacity for “suitable employment”, but neither did he strongly endorse any particular role.
Nabenet
245The defendant tendered a Nabenet Vocational Assessment Report dated 19 April 2022,[153] a Nabenet Vocational Planning Report dated 17 January 2023[154] and a Nabenet NES Labour Market Analysis Summary Report dated 6 April 2023.[155]
[153]DCB 174
[154]DCB 185
[155]DCB 192
246I have read and considered the Nabenet evidence. I do not consider it necessary to set out much of it, because many of the doctors with specialist occupational and rehabilitation qualification have already done so. However, I do note that the Nabenet material is now considerably out of date and does not address the plaintiff’s condition after lumbar spinal surgery.
Analysis
247I shall first analyse the claim for loss of earnings for the left hip, before moving to analyse the claim for the low back.
248First, in the context of the observations I have already made about the unreliability of the evidence of the plaintiff, I consider the most reliable objective evidence is what is recorded in the clinical records and reports of treating practitioners. In that regard, there was no suggestion that the plaintiff was an unreliable historian when he had described his symptoms and restrictions to his treating practitioners.
249Next, as a broad overview, when considering impairment consequence for work there is no escaping the fact that the plaintiff had a very limited capacity for work “before injury”. In other words, the plaintiff is the quintessential example of a manual worker. There is no real suggestion that his work capacity could now be improved by retraining, or that he now has the ability for example to undertake study or to increase his computer skills, to improve his capacity for sedentary work.
250For the necessary analysis of work capacity, the starting point is that the plaintiff is and was always going to be, a man whose only capital asset for work was his physical capacity.
General legal principles for loss of earnings
251Next, commencing with general legal principles, to establish an entitlement to commence a proceeding for loss of earnings, the plaintiff must satisfy the statutory requirements contained in s325 of the WIRC Act, being both the ‘narrative test’ and the ‘statutory formula’.
252First, the plaintiff must establish that the loss of earning capacity consequences from the compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being “more than significant or marked”, and at least “very considerable”, as per s325(2)(b) and (c) of the WIRC Act (“the narrative test”).
253Second, he must then satisfy the “statutory formula” as contained in ss325(2)(e)(i) and (f) of the WIRC Act, namely, whether he has a loss of earning capacity of 40 per cent of gross earnings, measured as set out in the three years before or after injury as most fairly reflects his earning capacity had the injury not occurred.
254Third, he must continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more as per s325(2)(e)(ii).
255A failure by the plaintiff to establish any one of these three steps would mean that he fails to establish an entitlement to commence a proceeding for pecuniary loss damages.
The left hip
The claim for loss of earnings
256Because the defendant conceded that the plaintiff had a “serious injury” for pain and suffering purposes for the left hip, the remaining issue for the left hip injury is whether the plaintiff has satisfied the test for loss of earning capacity.
257Despite some misgivings about the reliability of the plaintiff, there is no escaping the fact that he has undergone a total left hip replacement at a relatively young age. The objective evidence is that the plaintiff has had a technically successful left hip replacement and an improvement in his symptoms and functional tolerances after surgery.
258Therefore, I do not accept that he has extreme or disabling pain post the left hip replacement.
259But, equally, having considered the whole of the evidence, I do not accept the opinions such as those from Dr Thomas, who opined that the plaintiff now has a fully functioning left hip when it comes to work. It is important to remember at this juncture my earlier observation that the plaintiff is the quintessential manual worker.
260The clinical records from Dr Xia record that the plaintiff continues to attend with complaints of left hip pain. For example, on 20 February 2025, Dr Xia recorded that the plaintiff “still has low back and left hip pain from time to time” and found that on examination the plaintiff walked slowly.[156] I consider that to be a reliable summary of the plaintiff’s situation.
[156]DCB 209
261On a consideration of the whole of the evidence, I accept that the plaintiff does have ongoing left hip pain at times. While in theory he could still drive a forklift, I accept that climbing in and out of a forklift or sitting for prolonged periods is likely to be problematic for him with his left hip injury. I accept that any activity that requires prolonged weightbearing or placing force through the left hip is also likely to be problematic for him. I accept the medical opinions such as that from Dr Xia who said that the left hip injury prevents the plaintiff from returning to his pre-injury employment.
262In my opinion, the plaintiff’s evidence of still undertaking low-grade physical activity, such as walking or playing pickle ball, does not detract from the conclusions I have expressed. In fact, it confirms my assessment that he is still able to engage in some light physical activity, but for limited duration, consistent with the defendant’s concession of a “serious injury” for pain and suffering. But that ability for some occasional, light physical activity, does not realistically translate into a capacity for manual work.
263Next, for a manual worker, the inability to return to pre-injury employment is clearly a “very considerable” consequence for the plaintiff. Therefore, the narrative test is satisfied.
264Turning next to the statutory formula, considering the definition of “suitable employment”,[157] the fact is that with a compromised left hip and a restriction for manual work, the plaintiff realistically has no capacity for work.
[157] Richter v Driscoll [2016] 51 VR 95
265The reality is that the restrictions for work as outlined by medical experts such as Dr Xia and Dr Horsley mean that, as noted by Mr Doig, any theoretical capacity for work “after injury” does not translate into any realistic capacity for “suitable employment”.
266Therefore, this is not a proceeding where there is a need for a detailed analysis of earnings before injury or of earning capacity after injury. That is because from the left hip alone, the plaintiff is totally incapacitated for any “suitable employment” and that will remain for the foreseeable future. As such, he has satisfied both the narrative test and the statutory formula because the loss of his pre-injury capacity for manual employment is a very considerable consequence for him.
267In short, any capacity for “suitable employment” “after injury” is a theoretical capacity only and not a realistic capacity.
268But, briefly dealing with the evidence of earnings, for the financial year ended 30 June 2017, being the last full year before the incident, the plaintiff had gross earnings of $53,315 from his work with the defendant. In the following three financial years, his highest earnings were $61,582 gross for the 2020 financial year. Regardless of which figure is selected as the “before injury” earnings, where “after injury” the plaintiff has no earning capacity in “suitable employment” he has made out the requisite loss of 40 per centum or more.
The low back
269Dealing next with the claimed “serious injury” to the low back and commencing with causation, as already alluded to, the whole of the evidence supports the conclusion that the plaintiff has a work-related low back condition.
270On balance, I conclude that the plaintiff aggravated degenerative change in his low back because of overcompensating due to an altered gait after injuring his left hip. As such, the low back is an impairment consequence of the compensable left hip injury.
271Suffice to say, adding an impairment consequence of an operated back, with ongoing pain and restrictions, only adds to the argument that the plaintiff has a “serious” left hip injury, especially where the recent medical evidence is that the low back significantly incapacitates the plaintiff for work.
272I reject the medical opinions that suggest the plaintiff’s low back condition is entirely constitutional and unrelated to the incident. Such opinions are against the weight of the medical evidence, including the limited evidence of low back pain before the incident.
273In my opinion, after an assessment of the whole of the evidence, there is no adequate explanation in the medical evidence that attributed the low back to an unrelated underlying problem, such as the Medical Panel Opinion and reasons for Opinion, to explain how a generally asymptomatic underlying degenerative condition became painful to the point of needing spinal surgery. The better explanation from the evidence is that the back became symptomatic because of an altered gait and overcompensation after injuring the left hip.
274Therefore, the altered gait caused by the left hip aggravated underlying degenerative change in the plaintiff’s lumbar spine, sufficient to cause chronic pain and the need for major spinal surgery.[158]
[158] Petkovski v Galletti [1994] 1 VR 436
275I acknowledge there is some dispute in the medical evidence. But, after an analysis for a gateway provision, I prefer the medical opinions that attribute the low back condition to overcompensating because of the left hip injury. I also do not attach much weight to the Medical Panel Opinion, notwithstanding that it was binding for the statutory benefits claim, where I have the benefit of medical and other evidence that was not provided to the Panel.
276Alternately, if the low back injury is not related to the left hip injury, then if there is another explanation for the cause of the plaintiff’s low back pain, then I consider the most likely alternate explanation is that the underlying degenerative change was rendered symptomatic by the forces applied to his spine because of the incident. There is some merit in the argument of the plaintiff that because of the significance of the pain and the problem with the left hip, the left hip was the initial focus of the plaintiff and his treaters, masking a developing low back problem.
277Therefore, I am fortified in my conclusion that in some way the low back is work related because of the medical opinions that attribute the low back condition to the incident. It could be, as the plaintiff submitted, that the low back is a combination of the force of the incident and overcompensating because of the left hip.
278The question then is whether the low back is a “serious injury”.
279As mentioned, about the low back the defendant did not make any specific submissions about pain and suffering. In my view, the need for major spinal surgery was because of the aggravation injury to the low back. The plaintiff has had an incomplete resolution from surgery and is left with ongoing pain and restriction, is a “very considerable” pain and suffering consequence.
280Next, the low back of itself would incapacitate the plaintiff from any physical work. I have set out in some detail the medical evidence and there is no need to repeat it but, taken as a whole, at best after his back injury the plaintiff has a theoretical capacity for “light work”. But I do not accept it is one that he has any realistic ability to exercise.
281Therefore, for the reasons expressed, the plaintiff has established that the low back is causally related to the incident and that it is a “serious injury” for both pain and suffering and pecuniary loss purposes.
Conclusion
282Leave is granted to the plaintiff to commence a common law proceeding for both pain and suffering and pecuniary loss damages.
283I request that the parties co-operate to draft appropriate orders to give effect to these reasons, together with appropriate orders for costs.
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