Keshavarz v Victorian WorkCover Authority
[2025] VCC 621
•27 March 2025 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-04536
| SAID KESHAVARZ | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 26 March 2025 | |
DATE OF JUDGMENT: | 27 March 2025 (ex tempore) | |
CASE MAY BE CITED AS: | Keshavarz v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 621 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the cervical and lumbar spine – pain and suffering – credibility
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited: TAC v Zepic [2013] VSCA 232; Lu v Mediterranean Shoes (2000) 1 VR 511; Petkovski v Galletti [1994] 1 VR 436, AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144, Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439 Johns v Oaktech Pty Ltd [2020] VSCA 10, Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Application Granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms V Katotas | Maurice Blackburn Lawyers |
| For the Defendant | Mr T Storey | Wisewould Mahony |
HER HONOUR:
Introduction
1Said Keshavarz (“the plaintiff”), seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring common law proceedings to recover pain and suffering damages in respect of an injury to spine (lower back[1] and neck[2]) alleged to have arisen out of or in the course of his employment as a truck driver with Four Seasons Waste Pty Ltd (“Four Seasons Waste”) (“the subject injury”).
[1]The lower back was said to have been injured due to the need to get in and out of the truck throughout the working day, and the “rough” nature of the truck being driven, as it had a faulty arm and operating it caused the plaintiff to be jolted and moved around (Amended Plaintiff’s Court Book “PCB” 13-14).
[2]The neck was said to have been injured due to the repetitive nature of the truck-driving duties, in having to check the mirrors of the truck to line it up with the bins (PCB 13).
2The subject injury was, in part, an aggravation of a pre-existing lumbar spine injury suffered by the plaintiff in 2004, in the course of his employment as a labourer with an employer who manufactured kitchen benchtops (“the 2004 injury”).[3]
[3]Amended Defendant’s Court Book (“DCB”) 73
3The hearing proceeded in the usual way. The plaintiff was the only witness to give oral evidence and be cross-examined. The parties otherwise tendered various reports from their respective court books.
The relevant legal principles
4The legal principles are well known and were not in dispute.
5The Court must not give leave unless it is satisfied, on the balance of probabilities, that the injury is a “serious injury”.
6The spine is a single-body function. Therefore, the consequences of injuries affecting what is described by medical science as the cervical, thoracic or lumbar spine, may be aggregated for the purposes of the definition of serious injury where they arise from the same incident or circumstance.[4]
[4]TAC v Zepic [2013] VSCA 232 (“Zepic”) at paragraphs [136]-[139]; Lu v Mediterranean Shoes (2000) 1 VR 511 at 516
7Where the alleged injury is an aggravation of a pre-existing injury or condition, the plaintiff must also satisfy the Court that the aggravation, itself, is serious. In such a case, “an analysis must be made of the extent of impairment of a body function before and after the relevant injury”, and the claimed aggravation must itself be a serious injury. Minor aggravations will not qualify as a serious injury.[5]
[5]Petkovski v Galletti [1994] 1 VR 436 at 444; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 at 314, paragraph [26]
The issues before the Court
8Initially, the defendant submitted that the plaintiff’s first affidavit in this proceeding misrepresented the extent and severity of his pre-existing lumbar spine condition. The consequences of that condition had been outlined in the previous affidavits filed in other proceedings.[6]
[6]Transcript (“T”) 54 ꟷ T56
9Ultimately, however, the submission about misrepresentation was not persisted with. The defendant conceded the plaintiff was truthful and candid in court. In particular, the defendant relied on the plaintiff’s acceptance that, after the 2004 injury, there was always some degree of lower back pain, and his sleep, lifestyle and recreational activities were all affected prior to the subject injury.[7]
[7]T25 ꟷ T26 and T59
10A significant aspect of the defendant’s position was focused on submissions that the lumbar spine and the cervical spine were separate and ought to be considered separately. Arising from that were a number of submissions about the failure of the plaintiff to separate out the consequences and the treatment received in respect of each.
11Ultimately, the defendant conceded the cervical and lumbar spine injuries could be aggregated and were compensable[8]. However, it submitted the plaintiff has not made out his case, because all of the consequences of which he now complains existed and persisted from the date of the 2004 injury to 2021, when he alleges he suffered the subject injury.
[8]T64
12Counsel for the defendant relied heavily on two aspects:
(a) the plaintiff’s concessions of the ongoing nature of his pain after the 2004 injury and continuing until 2021, and its impact on his sleep, recreational abilities and home activities;[9]
(b) the plaintiff’s ability to continue to work in the same type of work he was performing when he suffered the subject injury.[10]
[9]T124
[10]T123 ꟷ T124
13Counsel for the plaintiff, relying on Zepic submitted that, if the Court finds there is a slight aggravation to the lumbar spine, then, in combination with the neck injury, the plaintiff has made out his case.[11]
[11]T111
14In particular, counsel for the plaintiff said the plaintiff has no obligation to disentangle any consequences between the cervical and the lumbar spine because the spine is one body function, and also because he suffered a repetitive strain injury to his spine in the same event or circumstance.
15That event or circumstance was said to be repetitive use of the mechanical arm of the truck to pick up bins, having to get in and out of the truck repeatedly to ensure the bins were in place, and requiring to constantly check the mirrors to line up the arm of the truck with the bins.[12]
[12]T112 ꟷ T114
16Counsel for the plaintiff also submitted that, in circumstances where the defendant had not cross-examined the plaintiff’s wife, the Court ought more readily accept her description of the plaintiff’s pre-injury level of functioning. In particular, his engagement in activities, his enjoyment of life prior to the subject injury, and the extent to which the pre-existing injury was having an impact on his life.[13]
[13]T115 ꟷ T116 and counsel relied on Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144 (“Jarvie”)
17Counsel for the plaintiff further submitted he was a stoic individual who had returned to work in circumstances where others with the same injury might not have, and this was not a matter that should be held against him. If the Court finds he is a stoic applicant who has been prepared to put up with pain and suffering and make the best of his situation, he should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself to the injury.
18Finally, counsel for the plaintiff submitted that the plaintiff was a witness of truth, and if I accept his evidence generally, then I ought also accept his evidence about the level of his treatment following the subject injury. That evidence includes that he was having physiotherapy and taking various medications for his back and neck.[14]
[14]T122 ꟷ T123
Background
19The plaintiff was born in Tehran in 1970 and is currently fifty-four years old. He came to Australia in 1994. Since then, he has worked in a variety of industries, including as a process worker in the food industry and manufacturing kitchen benchtops. He has also worked as a truck driver and security guard for various companies.
20In September 2004, while working for Topform Australia (“Topform”), the plaintiff suffered an injury to his lower back, with left sciatica, while lifting a large piece of timber from the factory floor. He made a claim for compenstation and made several affidavits in support of that claim.
21Following the 2004 injury, the plaintiff had approximately two years of work and conservative treatment, including physical therapies and medication. In 2006, his condition had improved sufficiently to enable him to return to work, and he did so, initially working as a security guard, then as a truck driver with two different employers, and again as a security guard in gaming areas, pubs and clubs.[15]
[15]DCB 78
22He found the truck-driving work to be a strain on his back, as it involved driving for long hours and manual handling loads. He also found the security work to be a strain due to long hours standing and, on occasion, the need to physically restrain people.[16]
[16]DCB 74-75 and DCB 78
23In March 2012, the plaintiff commenced work with the employer Four Seasons Waste as a truckdriver. His duties involved driving garbage trucks, and picking up residential hard waste and general waste. He would use a mechanical arm to pick up the bins and empty them, but was often required to get in and out of the truck repeatedly throughout the day to ensure that things were in place. From 2019 onwards, he was consistently driving the same truck.
24The job required him to constantly check the mirrors to line up the truck with the bins, which he did hundreds of times a day or over a thousand times a week. He described the truck he drove from 2019 onwards as being “very rough”, with its hydraulic arm being regularly faulty. He reported this to management. When he operated the truck arm, the truck jolted and moved around. He had a sore neck and back when he finished the work day and also noticed that, from 2019 onwards, the truck was shaking more and his pain getting worse.
25He also provided a history to the defendant's medico-legal expert, Dr Terence Saxby, who reported the following:
“There was a lot of vibration when the hydraulic arm was deployed. He attributes his problems to the need to constantly turn his neck to align when he is picking up the bins with the hydraulic arm. He states that that was an old truck, the mirrors were too small and required excessive motion of his neck. … .
…
… He claims he developed the pain in his neck and back over a period of time. There is no one particular injury. He relates this to the actual trucks. He advised me on this occasion, he believed the suspension was not working properly.”[17]
[17]DCB 36 and DCB 39
26It is this system of work which he asserts was causative of the subject injury. In particular, an aggravation to the lumbar spine which was affected in an ongoing way by the 2004 injury, and a new injury to the cervical spine.
27On 21 September 2021, the plaintiff reported the subject injury and attended his doctor, given painkillers and told to rest.
28The progress note of the treating doctor dated 22 September 2021, records the following:
“History:
Lower back pain
Very stiff
Goes to both legs
Has had this for three days
Drives a truck for work
Sitting a lot”[18]
[18]Exhibit P2, Progress Notes of Dr Imraan Ansari between 29 October 2018 and 15 October 2021, pages 56-57
29The doctor referred the plaintiff for a MRI scan of his lumbar spine with an indication on the referral of “[l]ower back pain going to legs”.[19]
[19](Ibid), page 57
30The plaintiff deposed in his affidavit, and I accept, that following the MRI scan he was referred for physiotherapy and attended.
31He also deposed, and I accept, that from about October 2021 he reported ongoing neck pain and was referred for a MRI scan of his cervical spine, which he underwent on 12 October 2021. The scan reported two prolapsed discs around C5 and C6 which were impinging on the nerves in his neck.[20]
[20]PCB 14 at paragraph [19]
32The plaintiff had a short time off work and returned in November 2021, but was unable to perform the duties allocated to him.
33In February 2022, the plaintiff attended a rheumatologist, Dr Alex Stockman, who cleared him to return to work with restrictions; that he is to avoid heavy lifting and repetitive movements of his neck. The doctor also recommended the plaintiff avoid working in trucks with poor suspension or constant vibration.[21]
[21] PCB 15 at paragraph [21]
34At this time, his general practitioner (“GP”), Dr Ansari, prescribed Celebrex and he continued to see his physiotherapist.
35In his affidavit, he described ongoing and persistent neck and lower back pain which he tried to manage as best he could with medication, Deep Heat and exercise.[22] Despite several attempts, he was unable to return to work in his pre-injury duties for that employer.
[22](Ibid) at paragraph [22]
36In August 2023, he commenced a job with a street-sweeping company, where he worked for approximately three weeks for four hours a day on a streetsweeper. This job aggravated his lower back pain and he was unable to continue in it.
37Not long after, the plaintiff commenced work as a contractor with a company which transported chemicals. In his oral evidence, he said he was unable to continue in that job for two reasons; the first was the chemicals affected his asthma in a negative way and the second was that there was a manual-handling component which aggravated his back problem. As I understood the evidence, it was the requirement to move and plug in a heavy hose.
38In December 2023, the plaintiff commenced work with a city council working as a truck driver in a similar role to the role he was in when he suffered the subject injury. His hours are 5.15am to 12.30pm Monday to Friday.
39He described being in a lot of pain at the end of the working day and required a lot of rest. The pain affects his lower back and neck. In particular, the lower back pain extends into both legs, more on the left than the right. Since suffering the subject injury, the pain in his lower back is constant and more intense. At its worst, it can be as high as 8/10.
40With respect to the neck, the plaintiff described altered sensation, such as numbness and tingling, and weakness, particularly in his left arm. He also experiences an ache or burning sensation that extends down into the arm and shoulder. He has restrictions on movement, in particular he has difficulty walking on uneven surfaces and up and down stairs, and he struggles with household activities like cooking and cleaning. He finds gardening difficult.
41He deposed that, prior to the subject injury, he enjoyed a lot of gardening and house maintenance. This was in spite of the consequences of the 2004 injury.
42Since the subject injury, he wears a back brace when out in the garden and limits himself to watering plants, and avoids lifting, twisting or bending activities. He has tried wearing his back brace while lawnmowing on a few occasions, but has ended up feeling stiff and sore afterwards. Without his back brace, he suffers exacerbations of the back pain, leaving him tender and sore for several days.
Treating medical practitioners
Dr Imraan Ansari, GP
43Dr Ansari is the plaintiff’s treating GP.
44In November 2021, he reported that a MRI scan of the lumbar and cervical spines demonstrated pathology in the back and neck, and that the plaintiff continued to have pain in these areas and needed referral to a specialist rheumatologist. He requested funding for this.
45In December 2021, Dr Ansari reported that the plaintiff had multilevel disc bulges with nerve impingement and cervical spine pain. His neck condition was a new injury, however he had a pre-existing back injury which settled over time.
46When asked what caused the injury or medical condition, Dr Ansari reported wear and tear from truck driving, as well as lifting.[23] He considered the reported course of the injury was consistent with how he would expect the injury or condition to have arisen.
[23] PCB 24
47When asked about interventions or modifications to assist in facilitating a return to normal or alternative work duties, Dr Ansari reported that the plaintiff was already attending physiotherapy and acupuncture.[24]
[24]PCB 25
48In May 2022, Dr Ansari reported prescribing Celebrex, 200 milligrams, in September 2021 as an anti-inflammatory and referring the plaintiff for physiotherapy and to see a rheumatologist. Provision of a back support and Deep Heat cream was also recommended to relieve pain and inflammation. He requested funding for these treatments as they were all related to the claimed conditions.[25]
[25] PCB 27
49On 16 June 2022, Dr Ansari reported to the plaintiff’s solicitors. In the report, Dr Ansari confirmed that the plaintiff had a history of work-related lower back pain and left sciatica from September 2004 with a different employer. That condition had been treated conservatively and the plaintiff eventually recovered.[26]
[26] PCB 28
50Dr Ansari diagnosed multilevel disc bulges with nerve impingement in the lumbar spine, a two-level disc prolapse with C5-6 nerve impingement in the cervical spine and musculoligamentous strain of the thoracic spine. He reported receiving information from Dr Stockman about the possibility the plaintiff could return to work by avoiding heavy lifting and repetitive movements of the cervical spine. Dr Ansari considered that employment in September 2021 resulted in the injuries sustained to the lower back mid-back and neck.[27]
[27] PCB 29-30
51On 7 January 2025, Dr Ansari again reported to the plaintiff’s solicitors. The plaintiff was now back at work with the council, driving a side-loader truck. However, the doctor noted the plaintiff continued to experience soreness and pain in his back and neck. He had difficulty turning his neck or bending too much at times. While the current job did not involve lifting and he was able to manage, this was managed with regular physiotherapy, Tiger Balm, and another heat rub. He was also using over-the-counter analgesia and was finding that his pain got worse if he missed physiotherapy sessions. His prognosis was guarded and he was going to require physiotherapy into the future.[28]
[28] PCB 37-38
Professor Richard Bittar, consultant neurosurgeon
52Professor Bittar, neurosurgeon, provided two reports. In the first report dated 30 November 2024, Professor Bittar outlined the plaintiff's current complaints, including lower back pain radiating down both legs with associated numbness, the pain being located bilaterally across the lumbosacral junction. The pain was described as constant, varying in character between aching, sharp, burning, throbbing, dull, gnawing and stabbing. It was located on both sides of the lower back with severity of 8/10.[29]
[29] PCB 39
53The plaintiff could walk for thirty minutes, sit for an hour, stand for thirty minutes and lift 10 kilograms before exacerbation. He had constant leg pain, described as “sharp, dull, burning, throbbing, gnawing, stabbing and aching”.[30] The left leg was mainly affected. There was constant numbness and pins and needles in the dorsum of the left foot. There was constant neck pain, which was also described as "sharp, dull, burning, throbbing, gnawing, stabbing and aching". It was located all over the neck and radiated to the left arm. The average severity was 5/10 and the maximum 8/10. He had constant bilateral arm pain, worse on the left. This radiated through the left biceps and triceps into the forearm and hand. The average severity was 5/10 and the maximum 7/10. He had constant numbness and pins and needles in both arms. He had daily headaches lasting all day and related to the neck pain.[31]
[30] PCB 40
[31] Ibid
54Professor Bittar considered the past medical history was non-contributory for previous injuries or symptoms and he provided a separate opinion on this in his second report, to which I will refer shortly.
55Professor Bittar noted the plaintiff was taking amitriptyline most days to help with sleep and was also taking Celebrex, Panadol or Nurofen as required, typically several times a week. There was less socialising than previously due to difficulty standing or walking for long periods. The recreational activities of the plaintiff were said to be severely impacted. This included a variety of previously-enjoyed activities such as bike riding, hiking and camping.[32]
[32] PCB 40-41
56The plaintiff's sleep was said to be severely impacted, with him waking two to three times at night due to neck and back pain, resulting in frequent daytime tiredness.[33]
[33] PCB 41
57Professor Bittar took a history relating to the plaintiff's employment, which included the duties the plaintiff was said to have been performing at the time of his injuries, including driving a garbage truck which “frequently jolted and vibrated” and the collection of various weights of rubbish from the side of the road. The hydraulic arm on the truck was regularly faulty and caused excessive jolting of the truck when operating the arm to pick up garbage bins.[34]
[34] Ibid
58He sustained injuries to the lumbar and the cervical spine as a result of the work he was required to perform. He reported the injury in September 2021. Thereafter, he saw a chiropractor and reported regularly to his GP. It was the GP who prescribes amitriptyline. The plaintiff was otherwise managing with various gels and creams, Panadol and Nurofen.[35]
[35] PCB 41-42
59Professor Bittar referred to the MRI scan of the lumbar spine and the MRI scan of the cervical spine, effectively reproducing the contents of the reports, but also noting that, in his opinion, the radiology reports accurately reflect the imaging appearances. This suggests that Professor Bittar viewed the imaging himself.
60In summary, Professor Bittar said as follows:
(a) the MRI scan of the lumbar spine revealed four disc prolapses at L2-3, L3-4, L4-5 and L5-S1, all of which had nerve root impingement and there was marked to moderate lower lumbar spondylosis at L4-5 to L5-S1.
(b) the MRI scan of the cervical spine revealed central disc prolapse at two levels, C3-4 and C5-6, with nerve root impingement more pronounced on the right at the C6 nerve roots and C5. He described it as “[m]oderate to marked mid to lower cervical spondylosis”.[36]
[36] PCB 42
61The examination of the plaintiff revealed mild restriction of lumbar and cervical spine movements and provided the basis for a diagnosis of disc prolapse at C3-4, C4-5 and C5-6 and aggravation of cervical spondylosis and intervertebral disc prolapse at L3-5 and L5-S1, with a diagnosis of aggregation of lumbar spondylosis.[37]
[37] PCB 43
62Professor Bittar considered that these conditions, both affecting the spine, were work related and that employment remained a significant contributing factor to those conditions. Despite ongoing symptoms, the plaintiff has been able to remain in paid employment, working full time as a truck driver.
63In his second report, Professor Bittar was provided with a range of enclosures, which included three previous affidavits sworn by the plaintiff relating to the 2004 injury sworn in 2008, 2009 and 2010, and a variety of medical material.[38]
[38] Counsel explained that this included about 1,000 pages of additional enclosures.
64He was asked to provide additional comment in respect of the opinion in his first report that the past medical history was non-contributory for previous injuries or symptoms.
65Professor Bittar explained that he had considered all of the material and the sciatica diagnosed in 2004 had resolved, the plaintiff was complaining only of mild lower back pain thereafter, and he had been able to commence work with Four Seasons Waste in March 2012 as a full-time truck driver.[39]
[39] PCB 60
66His work was of a heavy physical nature and considering all of these matters Professor Bittar was of the view the plaintiff had made a complete recovery from the previous work-related lower back injury and the past medical history was therefore not considered contributory to his current circumstances.[40]
[40] Ibid
67Professor Bittar also provided, in this report, separate restrictions in respect of the neck and the lumbar spine and expressed the opinion that, as a result of the cervical spine condition, the plaintiff was likely to continue to experience significant pain and disability into the foreseeable future. That he would require ongoing treatment and perhaps pain management, diagnostic blocks and radiofrequency denervations. The prognosis for the lumbar spine was similar and the prognosis for both sections of the spine was poor.[41]
[41] PCB 61-62
The Defendant’s medico-legal reports
Mr Brian Davie, consultant orthopaedic surgeon
68Mr Davie reported that the plaintiff had injured his lower back lifting a heavy benchtop in September 2004. He experienced severe symptoms of lower back pain, had some time off and resumed light duties, but lost his job in mid-2005.
69After some time off work, the plaintiff worked for short periods as a security guard and as a chicken delivery driver. At the time of the report, the plaintiff had started a new job in the security industry.
70Mr Davie noted, in particular, that the plaintiff was complaining of lower back pain caused by prolonged sitting and standing. Although he was able to work, he found it difficult to remain on his feet for periods of longer than four hours. The plaintiff did not describe any symptoms of pain in his left or right leg, but described symptoms of numbness in the toes of the left foot. He denied any symptoms in the right leg at all. There was associated weakness from the left leg.[42]
[42] DCB 56
71Investigations were viewed by Mr Davie and he reported that they demonstrated a disc protrusion at L4-5 on the right and a MRI scan showed degenerative changes at L3-4 and L4-5 with disc bulging. There was no functional component to the plaintiff's presentation.[43]
[43] DCB 57
Mr Brian Barrett, orthopaedic surgeon
72Mr Barrett reported on 1 September 2009 that the plaintiff had been injured working with Topform, lifting a heavy benchtop.
73At the time of the report, the plaintiff was complaining of left calf cramps aggravated by prolonged sitting, walking, bending and lifting, and lower back pain. He required analgesics, gentle exercise and did some lying down. He was on WorkCover payments and his symptoms were continuing without improvement.
74Radiological investigations were as follows: a CT scan of the lumbar spine in November 2004, demonstrating disc bulging at L3-4, L4-5 and L5-S1.[44] The defendant submitted the results of this imaging showed far more significant damage than that recognised by Professor Bittar in his report.
[44] DCB 60
75I accept this submission in part. While imaging may show physical damage to a body part, the focus of this court's enquiry is not so much on the damage visible, as it is on the evidence about the consequences of that damage.
76Mr Barrett reported that the plaintiff had resumed employment as a delivery truck driver and later as a chicken delivery driver, but his symptoms continued and increased, so he went off work in 2008. In Mr Barrett’s opinion:[45]
“… The present condition of [the plaintiff] at my one examination on the 27/11/2008 was of considerable disability, ongoing lower back pain and left sciatica, with non improvement over a period of at least 4 post injury years.”
[45] DCB 62
77I pause to note here that, on the plaintiff's case, there was some improvement which allowed him to return to work, it was this return to work Mr Barrett has noted in his report. Mr Barrett also said the following, upon which the defendant relied:
“These injuries have produced a profound reduction of his domestic, recreational, social and personal activities and this limitation is likely to continue into the foreseeable future.”[46]
[46] Ibid
78I will return to this aspect of Mr Barrett's report later in my judgment.
Dr Tony Kostos, rheumatologist
79In October 2021, Dr Kostos reported in relation to the subject injury. In his report, he took a history of the plaintiff's work duties and complaints, and noted that the plaintiff:
“... continues to describe constant pain in both sides of the neck extending to the interscapular region with only occasional pain and numbness in his left arm.
He also describes constant pain in the middle of the lower back with intermittent left posterior thigh and lower leg pain, but his back pain is much worse than this leg pain.
His neck and low back pain are a problem at night, especially when he tries to roll over. In the mornings he is stiff and has a hot shower and does some exercises to get going. During the day the neck pain is exacerbated by neck movements and the back pain is exacerbated by bending and being on his feet too long.”[47]
[47] DCB 7
80The report refers to various oils and creams that the plaintiff applied and a machine which Dr Kostos describes as “interferential”. Examination revealed the plaintiff to be wearing a support bandage and Dr Kostos considered that the neck movements showed:
“... a good range of pain free flexion and extension, but he has pain and restriction of movement with rotation and lateral flexion in both directions. … .
…
I also note 4 interferential suction cup marks across his upper back and shoulder blades .”[48]
[48] DCB 8
81I take that as a reference to the machine that had been used. Dr Kostos noted the investigations of 2005 and the investigations in relation to the subject injury as demonstrating disc prolapses at multi levels.
82The MRI scan of the neck is also noted by Dr Kostos to demonstrate disc prolapses at two levels. Dr Kostos provided an opinion that:
“… there clearly is a considerable similarity between the reports [from 2005 and last month] and any differences noted would simply reflect the natural history of disc degeneration and osteoarthritis.”[49]
[49] DCB 9
83Dr Kostos also opined that:
“[The plaintiff's] lumbar spine disc degeneration and osteoarthritis is constitutional in origin and has not been caused or accelerated by his work, but [I understand this to be] at times a symptomatic exacerbation can occur.”[50]
[50] Ibid
84I understand Dr Kostos is suggesting this can occur at work or from work.
85It seems to me Dr Kostos accepts that, while the condition itself is a degenerative osteoarthritic condition in relation to this particular plaintiff, Dr Kostos accepts that work can cause some symptoms.
86Dr Kostos also opined the plaintiff described the onset of neck pain in circumstances the doctor described in his report and observed that:
"… not surprisingly his investigations show cervical spine disc degeneration and osteoarthritis.”[51]
[51] Ibid
87Dr Kostos provided this caution, which I consider pertinent to my findings:
“If the details of his employment can be verified and it is confirmed that he has to turn his head to the left on a regular basis it is possible that a symptomatic exacerbation of his underlying condition could occur.”[52]
[52] Ibid
88For reasons that will become apparent, I have accepted the plaintiff as a credible witness and I accept his account of how his neck was injured. This falls squarely within the above caution by Dr Kostos.
89I do not accept Dr Kostos's ultimate opinion that the plaintiff needed to be re-assured that the changes on the investigation results demonstrate significant problems which are unrelated to his employment. This is not consistent with his opinion above, that employment can exacerbate the neck and back condition.
Dr Terence Saxby, consultant orthopaedic surgeon
90Dr Saxby provided two reports, dated 18 June 2024 and 14 January 2025. In those reports, he noted a history of the plaintiff's injury and diagnosed cervical spondylosis and lumbar spondylosis. He considered this represents degenerative disease of both the cervical and lumbar spines. This type of change, Dr Saxby said, was common in someone of the plaintiff’s age and is consistent with an underlying constitutional change, rather than a traumatic event.
91I pause to note that the plaintiff makes no allegation of a traumatic event, but relies on a course of work.
92Dr Saxby considered there were no inconsistencies in presentation and that the plaintiff's neck and lumbar pains were consistent with the radiological changes. He also opined that repetitive neck motion may well increase the symptoms of an underlying condition, but in his opinion this was a work exacerbation or an increase in symptoms, rather than making the condition worse.
93Dr Saxby considered there were no functional or psychological components to the plaintiff's presentation and reported that the lumbar spine condition would have been the same regardless of the injury.
94I reject this opinion, because it is inconsistent with Dr Saxby’s observations that:
“Repetitive neck motions may well increase symptoms which can cause an exacerbation of symptoms.”[53]
[53]DCB 29
95In his second report, Dr Saxby referred to the mechanism of injury I previously outlined and refers to a history the plaintiff provided to him that:
“Significantly, in 2004 he had a lumbar spine condition … [for which] he received compensation … [and] states following that he made a good recovery. He has had intermittent problems but he was able to self-manage this. He denies any other significant medical history.”[54]
[54] DCB 36
96Dr Saxby reported that the plaintiff told him he continues to have ongoing neck pain which had not really improved or significantly worsened. He also described pain in the left arm down to his hand and the right side to his elbow. He described pins and needles, but not in any specific dermatome distribution. He continued to have lower back pain and had trouble bending and lifting. He could walk for thirty to sixty minutes. He complained of pain in the left lower limb and some paraesthesia or altered sensation, again in a non-dermatomal distribution. He was able to lift his arms overhead and do some lifting and bending, but not more than 5 kilograms.[55]
[55] DCB 37
97Again, Dr Saxby diagnosed cervical and lumbar spondylosis, based on the history of pain. In terms of the plaintiff's employment duties and his account, he reported that the plaintiff attributed to having to use the mirrors frequently, causing him to develop neck pain and back pain towards the end of 2021. He related this to the vehicle that he was driving.
The Plaintiff’s credit
98In an application such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.
99The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon his behaviour and performance on examination and on testing.[56]
[56]Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439 at 448 (per Brooking JA); Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
100I note in this case all of the experts who assessed the plaintiff considered that his presentation was consistent with the history and with the imaging.
101Credit is also important, because the Court must be satisfied of the alleged consequences and their impact on the plaintiff’s residual capacity.
102The plaintiff was a softly-spoken man. English is not his native language and he spoke with an accent, although he was able to understand and be understood.
103I consider the plaintiff was a credible and reliable witness. He gave direct answers and was responsive to all questions asked of him. He answered in a straightforward manner without embellishment. He was candid and made concessions, at times against interest. He did not argue with the cross-examiner and did not argue his case in his answers. However, he also appeared to be able to maintain a position, despite being invited to accept the opposite. For example, he did not seem to simply accept as truthful what was written in his affidavit. I will briefly provide two examples of the plaintiff’s clear attempts to give honest and reliable evidence.
(a) in evidence-in-chief, when invited by his counsel to withdraw “bike riding” from his affidavit, he said, “I used to do that but I can’t do it now”, then added “I was advised by the physio … not to do it”;[57]
(b) he was asked in cross-examination about his affidavit, which suggested that, in the middle of 2024 he travelled with his partner to the Philippines to visit family. He told the Court that was not correct and he had in fact travelled in 2023.[58]
[57]T8, L28 ꟷ T9, L1
[58] T40, L1 ꟷ T41, L1
104When I raised with counsel for the defendant my impressions of the plaintiff as a credible witness, counsel agreed that he was truthful and candid in court.[59]
[59]T60
105I consider his demeanour in the quality of his answers made him an impressive witness.
106The plaintiff’s credit takes on a complexion of some significance in this application, because the defendant was critical that his two affidavits did not sufficiently delineate the following:
(a) consequences of the 2004 injury,
(b) any alleged aggravation suffered in the subject injury; and
(c) the treatment that was being received for the lumbar spine and the cervical spine.
107I consider the plaintiff’s credibility and reliability impact his evidence in the following ways:
(a) firstly, I am able to rely on his affidavits and the consequences he attributes to the subject injury;
(b) secondly, I am able to rely on medical histories as recorded by both treating doctors and medico-legal specialists;
(c) thirdly, I am able to rely on evidence he gave in cross-examination.
Injury
108There was no dispute that the subject injury affecting the spine was cervical and lumbar spondylosis. Doctors who viewed the imaging all agree that:
(a) the MRI scan of the lumbar spine dated 27 September 2021 shows multilevel disc prolapse with impingement of the nerve roots at L2-3, L3-4, L4-5 and L5-S1; and
(b) the lumbar spine was also affected by facet joint osteoarthritis.
109There was also no dispute the MRI scan of the cervical spine dated 12 October 2021 showed a two-level disc prolapse with impingement on the C5 nerve root, a C5-6 disc prolapse with impingement at the C4 and C6 nerve root, and moderate to marked lower cervical spondylosis.
110In short, the diagnosis derived from the weight of the evidence is cervical spondylosis and lumbar spondylosis caused by degenerative disease of both the cervical and lumbar spines.
Causation
111Dr Ansari and Professor Bittar both attribute the symptoms arising from the cervical and lumbar spondylosis to aggravation from the work duties.
112Dr Kostos considered that, if the details of the plaintiff’s employment could be verified and it was confirmed he had to turn his head to the left and right on a regular basis, it is possible that the symptomatic exacerbation of the plaintiff’s underlying degenerative condition could occur.
113Dr Saxby also reported his view that repetitive neck motion could well increase the symptoms of the plaintiff’s underlying degenerative condition, which he described as a work exacerbation.
114In terms of the lumbar spine, Dr Saxby reported that the lumbar spine condition progression would have been the same regardless of the work injury.
115Weighing all the evidence together, and taking into account the concession by the defendant that there is no evidence of cervical spine symptoms prior to the date of the subject injury, I consider the evidence allows a finding that the symptoms in the neck arose out of the plaintiff’s employment.
116In terms of the pre-existing condition, any symptoms from the 2004 injury had settled prior to his employment with the employer. Weighing all the evidence together, including my acceptance of the plaintiff as a witness of truth, I consider the work-related duties aggravated and brought on additional symptoms in the lumbar spine.
Permanence
117There was no dispute about permanence. I accept the opinion of Dr Ansari and Professor Bittar that the prognosis is poor and that the plaintiff is likely to continue to suffer from symptoms affecting his neck and lower back into the foreseeable future.
Impairment consequences
Consequences of the injury
118In Haden Engineering Pty Ltd v McKinnon,[60] the Court of Appeal set out a series of considerations to which judges can have regard in assessing the pain and suffering consequences of an injury. The defendant relied on the indicia from Haden as follows:
(a) a court must assess:
(i)what the plaintiff says about the pain both in court and to doctors;
(ii)what the plaintiff does about the pain (medication, rest, treatment);
(iii)what the doctors say about the extent and intensity of the plaintiff’s pain;
(iv)what the objective evidence shows about the disabling effect of the pain;
[60](2010) 31 VR 1 at 4-6 (“Haden”), paragraphs [11]-[16]
(b) the weight to be attached to the plaintiff’s account of the pain experience will depend up the assessment of the plaintiff’s credibility;
(c) some plaintiffs may be more stoical than others, such that they are prepared to endure pain in order to maintain a desired level of function;
(d) a court must consider the extent to which pain interferes with the ordinary activities of daily life – sleep, mobility, cognitive functioning, capacity for self-care, performance of household and daily duties, recreational activities, social life, sexual life and enjoyment of life.
Pain
119In Kelso v Tatiara Meat Co Pty Ltd,[61] Dodds-Streeton JA said:
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[61](2007) 17 VR 592 at 629, paragraph [199]
120In his affidavit, the plaintiff deposed that, since suffering the subject injury, his pain was constant and more intense. He also had a new pain in his neck which affected his left arm, with tingling, weakness and an ache and burning sensation. He described an impact on his ability to sit, stand or walk for long periods.
121In cross-examination, the plaintiff accepted that, following the 2004 injury and up to 2021, there was always some degree of lower back pain. Further, he accepted that, in that period he experienced sleep and discomfort “at night fairly regularly” as a result of the 2004 injury. He also accepted the 2004 injury affected his lifestyle, recreational activities and what he had been able to do at home. He accepted the 2004 injury affected his social life, his ability to go out and meet friends, or go to barbecues and parties.
122I accept the plaintiff’s evidence that he had some level of pain from his lower back injury leading up to 2021, however it worsened after 2021. This is consistent with the opinion of his GP and with the opinion of Professor Bittar.
123I do not, however, consider that having some level of pain between 2004 and 2021 meant he was unable to, or did not engage in, the activities he described in his affidavit and that his wife describes in hers, as having been impacted by the subject injury.
124I consider the ability to return to work as a truck driver in 2012 support his evidence that his condition improved somewhat.
125I note Dr Ansari’s progress note in September 2021, where describes pain in the back and both legs “for 3 days”. The inference which can be drawn from this note is that there was some qualitative difference in the pain he experienced over the last three days, as compared to previously. I note also that in his affidavits sworn in support of the 2004 injury, the plaintiff describes only left leg pain. The note of Dr Ansari suggests there was now pain affecting both legs.
126The history recorded by Professor Bittar is that after the subject injury the plaintiff began to experience significant back pain radiating down into both legs, and neck pain causing weakness and numbness in the left arm. Despite chiropractic treatment, the pain persisted and at one stage it was so severe the plaintiff had to walk with crutches.
127The history recorded by Dr Kostos is that after the subject injury the plaintiff had constant pain in both sides of the neck extending to the intrascapular region and occasional pain and numbness in the left arm. He had constant pain in the middle of the lower back and intermittent left posterior thigh and lower leg pain, but the back pain was much worse than the leg pain.
128The neck and lower back pain was a problem at night, especially when he tried to roll over in the mornings. He was stiff and needed a hot shower and exercises to get going during the day, and the neck pain was exacerbated by neck movements, which I take to be while at work driving a truck, and his back pain was exacerbated by bending and being on his feet for too long.
129The history recorded by Dr Saxby is that the plaintiff had intermittent neck pain and left arm pain, with weakness in the left hand. The lumbar spine was intermittently uncomfortable and he had trouble bending and lifting, but could manage this with exercise and self-management.
130I do not accept the submissions on behalf of the defendant that the severity and frequency of the pain was unclear. On the contrary, the evidence as a whole, including the plaintiff’s affidavits and the history recorded by doctors, suggest that since the subject injury he has continued to experience neck pain and arm numbness, which affects him in his work and affects his sleep, and he has continued to experience lower back pain and leg pain, which affects his work, his sleep and his ability to engage in various activities.
131I consider what the plaintiff does about the pain is to take Panadol and Nurofen, and apply creams and potions to his neck and back. He also has been seeing a physiotherapist for a significant amount of time and it looks like it is this treatment which is allowing him to remain at work.
132I consider all of these matters should be looked at through the prism of my finding him as a credible witness and that he is a stoic person who perseveres despite the constancy of his pain.
133I find the plaintiff has permanent daily pain of varying severity requiring frequent medication and I find this raises a real prospect of a “very considerable” consequence.
Medication and medical treatment
134I accept the plaintiff’s evidence that he has physiotherapy, over-the-counter pain relief, heat gels and creams, and that he must apply heat cream and perform exercises each day before he goes to work. I accept his evidence the creams provide some relief from pain and stiffness, but he continues to suffer from neck and lower back pain at the end of the day, despite these measures.
135I consider it of some significance that a man in his fifties is unable to work without applying creams and potions and he returns home from work with significant pain, stiffness and discomfort, and that this is unlikely to improve, but is likely to worsen.
136I reject the defendant’s argument it was necessary for the plaintiff to delineate which pain he takes medication for and which part of his spine is being treated by physiotherapy. I do so on the basis I find that the whole of his spine has been affected by the work injury and therefore it is not necessary to disentangle between the cervical and lumbar spine. I accept the plaintiff’s evidence deposed in his affidavits to having all the treatment for his spine and for no other condition.
Work capacity
137While the plaintiff has been able to return to work in pre-injury duties performing work of a type that he performed when he suffered the subject injury, I consider he is not performing this work unrestricted and without pain.
138He is a man with an impressive work history, and despite significant injury to his back, has managed to return to work, making numerous attempts to find work which accommodates his injury. This is to his credit.
139I accept the submissions of counsel for the plaintiff that a return to work, even in pre-injury duties, does not disqualify him from obtaining leave.
140I consider the plaintiff is a stoic individual who has made numerous attempts to work in circumstances where others with the same injury might not have. I consider he has understated the level of his pain and disability, which can mask to the observer the true dimension of the pain consequence he experiences.
141In the work context, such a person is more likely to persist in performing work, rather than cease work altogether, and, as described by his counsel, “sit on the couch”.[62]
[62] T156, L31 ꟷ T157, L1
142The stoic allows his employment choices and work practices to be dictated by tolerable levels of pain which are stoically endured.
143On the evidence before me, all of the observations made by the Court of Appeal in Jarvie[63] are apposite to the plaintiff and informs the question whether his injury satisfies the “very considerable” test.
[63]Jarvie at paragraph [69]
Sleep
144On his affidavit, the plaintiff deposed to a substantial change in his sleep following the subject injury. I accept this evidence. He describes finding it difficult to sleep through the night and often waking two to three times at night because of pain in his neck and lower back.
145While he accepted his sleep had been affected as a result of the 2004 injury, this does equate to evidence that his sleep was unchanged following the subject injury.
146In re-examination, the plaintiff described his sleep has worsened after 2021. He said some nights he sleeps only three to four hours and he might wake at 2 or 3 o’clock in the morning and watch TV. He said it was not the same as it used to be, and by that I understood a reference to a time prior to the subject injury.
147I consider that, for a person whose sleep was already affected by an existing lumbar spine condition, it is a very considerable consequence for him to now suffer additional discomfort, wakefulness and a new pain in his neck. He describes being woken two to three times at night because of neck and lower back pain and finding it difficult to get back to sleep.
Mobility
148I return to the observation of Mr Barrett that the 2004 injuries had produced a profound reduction of the plaintiff's domestic, recreational, social and personal activities and that these limitations were likely to continue into the foreseeable future. I consider this renders the plaintiff a man who was already significantly impoverished at the time he came to the subject injury.
149I find that, while there was some improvement from the bleak picture painted by Mr Barrett, the plaintiff, in cross-examination, accepted there were ongoing consequences from the 2004 injuries.
150In his first affidavit, the plaintiff deposed to previously enjoying physical activities like bike riding, hiking and camping, prior to the subject injury[64] and that he is now limited in his ability to enjoy physical activities. He was not challenged on these matters.
[64]PCB 17
151In his second affidavit, he deposed to having restrictions on his ability to enjoy walking while on holiday to Queenstown. He had to limit himself to short walks, avoid anything that was too hilly or steep because it would aggravate his back pain, he had to do stretching exercises every day and found the flight very hard. He was not challenged on any of these matters.
152The defendant played surveillance video of the plaintiff taken on 24 December 2024, which showed him mowing the lawn. My observations, which I raised with the parties during the hearing, was that he was performing all the movements slowly. While he was able to bend, he did so slowly and when needing to remove the catcher from the molar, he squatted down slowly, bending at the knees.
153In cross-examination, the plaintiff accepted that following the 2004 injury his recreational activities were affected and he always had to be a bit careful in what he was doing. It also affected how long he could drive for and how often he would get out of the vehicle, and need to stretch.
154I do not consider this concession supports a finding that the subject injury has made no substantial impact on his life. To the contrary, I consider that, for a man with an already impoverished set of abilities, the further restrictions to his mobility and his ability to engage in the limited pursuits is a “very considerable” consequence.
Activities of daily living
155The plaintiff is able to care for himself and to attend to his own hygiene and other personal needs.
Sports and hobbies
156As stated above, the plaintiff was not challenged on the restrictions caused by the subject injury to his ability to participate in bike riding, camping and hiking, and I find that these activities have been impacted in a significant way by the subject injury.
157In particular, I accept the unchallenged evidence of his wife that he is restricted in his enjoyment of gardening, keeping vegetables, mowing his lawn and weeding the garden.
158I accept that he is not able to do it like he used to. I accept that, prior to the subject injury, he was able to mow the lawn every fortnight and he can now only mow it once every couple of months, and when he does, he has to wear a back support. His own evidence is that he feels stiff and sore afterwards.
159From my observations of the surveillance, I saw a man moving slowly, holding his back stiff, upright and performing the majority of the work of pushing the mower with his arms and legs.
160At one point, he was seen to hold his left arm up in the air, which, to the observer, appeared as though he was trying to relieve some discomfort. On another occasion, he held up both arms in the air, which appeared to me as though he was trying to relieve some discomfort. He also held his arms up in the air, which movement made a similar impression on me.
161He could be observed on a number of occasions squatting down slowly, using his knees to lower himself down.
162I also raised with the parties my observation that the grass did not appear to have been mowed recently.
163The number of times the plaintiff was seen to empty the grass catcher also appeared to me to be consistent with emptying it frequently so that the catcher was not too full. He was wearing a back brace while performing the task.
164I reject the description by Counsel for the defendant of vigorous lawn-mowing activities.
Driving
165The plaintiff is currently working as a truck driver. He describes having to use a special cushion for his back, needing to take regular breaks every hour or so, and get out of the truck to do stretches and exercises before getting back in. He also deposed to needing to conduct head checks while he drives the truck, which activity is affected by persisting neck pain. He was not challenged on any of these matters.
166While I accept he is able to drive professionally and by inference privately, this is not without experiencing pain, discomfort and restriction. I consider that, in itself, is a consequence of some significance to a person who drives for a living.
Final observations
167The plaintiff’s evidence about the consequences to him of the subject injury is also supported by the unchallenged affidavit of his wife.
168In that affidavit, she deposed to knowing him since 2012 and being in a dating relationship since 2014. She described trips to the beach and to the mountains, and long walks together in the park. There had been fortnightly catch-ups with friends, and she observed the plaintiff enjoying gardening, mowing, weeding and planting vegetables. He mowed the lawn fortnightly. She described him as being a person who loves to cook and with whom she had a healthy intimate life. None of these observations of his presentation prior to the 2021 injury were challenged.
169There was also no challenge to her observations that since the subject injury he is no longer able to do all the things he used to love because of back and neck pain. She described rarely going on road trips any more, taking walks in the park or cooking as he did previously. While he still tried to go out in the garden, he now only mows the lawn about once every two months, wearing a back support. She observed that he does not sleep well and that he might wake her to help him get more comfortable. Their level of intimacy had decreased due to his pain.
170Finally, as counsel for the defendant ultimately conceded the spine is one body function and the consequences to the plaintiff of the lumbar and cervical spine injuries can be considered together,[65] I am not required and don’t make separate findings about each.
[65]T123 ꟷ T124
171However, if I was required to make separate findings, I would find that the neck injury, itself, with two disc prolapses, constant pain and restriction, numbness, tingling and weakness in the left arm, and its impact on his employment and sleep, constitute a serious injury by itself.
172If I was required to make the finding in relation to the lumbar spine, I consider the aggravation to the lumbar spine to be serious. I do so for the reasons I have previously outlined and because I accept his evidence, his histories and the unchallenged evidence of his wife, as to the impact on the plaintiff of the lumbar spine aggravation.
Conclusion
173I grant the plaintiff leave to proceed against his employer for pain and suffering damages in respect of the subject injury to the spine.
174I will hear the parties with respect to costs.
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