Kesper v Victorian WorkCover Authority

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCI 2024 0001
RICHARD KESPER	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	ORR, KAYE JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2024
DATE OF JUDGMENT:	15 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 237
JUDGMENT APPEALED FROM:	[2023] VCC 2057 (Judge Ginnane)

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WORKERS’ COMPENSATION – Appeal – Applicant sought leave to bring proceedings for recovery of damages for serious injury – Judge refused leave because pain and suffering caused by neck injury was not ‘very considerable’ – Applicant contends judge should have granted leave – Standard of appellate review – Respondent contends appellate court should afford ‘deference’ to primary judge – No deference warranted – Appeal allowed.

WORKERS’ COMPENSATION – Appeal – Applicant contends judge erred by finding pain and suffering consequences did not ‘dominate’ plaintiff’s life – Applicant contends judge erred by applying a test whereby cases in the ‘middle of the range’ should be dismissed – Applicant contends judge gave inadequate reasons – No error – Reasons comprehensive.

Workplace Injury Rehabilitation and Compensation Act 2013, ss 325, 335.

Connelly v Transport Accident Commission [2024] VSCA 20; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries v Poljak [1992] 2 VR 129; Lee v Lee (2019) 266 CLR 129; Hamidi v Transport Accident Commission (2023) 104 MVR 282; Warren v Coombes (1979) 142 CLR 531; Victorian WorkCover Authority v Perumal [2024] VSCA 107.

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Counsel
Applicant:		Mr ADB Ingram KC with Mr LA Howe
Respondent:		Mr PH Solomon KC with Mr JS Forrest
Solicitors
Applicant:	Arnold Thomas & Becker
Respondent:	Injury Disputes Practice Lawyers

ORR JA
J FORREST AJA:

Introduction

Richard Kesper is now 61 years of age and between 2006 and January 2021 was employed at Eastern Health as an operating theatre technician. In 2017, he developed a serious neck condition which ultimately required a discectomy and fusion at two levels of his cervical spine. This condition was attributed to his work. He experienced back problems at work in 2020 and then in July 2021 sustained a further injury to his lower back — also at work, which resulted in him ceasing employment.
In a proceeding in the County Court, Mr Kesper sought leave to bring a common law claim against Eastern Health, contending that he had sustained a serious injury to his cervical spine arising out of his employment. Accordingly, he applied to the County Court for leave to bring a claim for pain and suffering damages pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRC Act’).
His application was heard in June 2023. The County Court judge, his Honour Judge Ginnane, was not satisfied that Mr Kesper had sustained a serious injury within the meaning of the WIRC Act. Mr Kesper now seeks leave to appeal that determination.
Notwithstanding his Honour’s thorough assessment of the evidence and application of the law, we are of the view that the judge erred in refusing leave to Mr Kesper to bring his common law claim. For the reasons that follow, leave to appeal will be granted, the appeal allowed, and Mr Kesper will have leave to bring his claim.

Relevant provisions of the WIRC Act

The serious injury provisions of the WIRC Act are within div 2 of pt 7.
To bring a common law proceeding, a worker must satisfy the serious injury threshold as prescribed by the Act. There are several ways in which this can be done: one is by obtaining the leave of a court: s 335(2)(d).
Section 335(5) relevantly provides:
For the purposes of subsection (2)(d)—
(a)a court, other than the Magistrates’ Court, must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury … .
The definition of serious injury is contained in s 325 of the WIRC Act and reads as follows:
(1) In this Division—
…
serious injury means—
(a)permanent serious impairment or loss of a body function; or
(b)permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.
(2)For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
…
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable[.]
These provisions and those of its predecessor, s 134AB of the Accident Compensation Act 1985, have been the subject of numerous decisions of this Court, upon which both parties relied depending upon the perceived forensic advantage.[1]
[1]For instance — and to mention only a few — Dwyer v Calco Timbers [No 2] [2008] VSCA 260 (‘Dwyer [No 2]’); Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; [2010] VSCA 69 (‘Haden’); Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; [2011] VSCA 52 (‘Sutton’); Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143.

The trial

Mr Kesper’s application was heard on 13 June 2023 and was admirably brief — as it should be given that this is a gateway provision.
Mr Kesper’s evidence in chief comprised three affidavits.[2] He was cross-examined by counsel for the respondent, the Victorian Workcover Authority (‘VWA’).
[2]Affidavit of Richard Kesper sworn on 29 March 2022, Affidavit of Richard Kesper sworn on 22 May 2023 and Further Affidavit of Richard Kesper sworn on 11 June 2023.
Mr Graeme Smith also swore an affidavit in support of Mr Kesper’s application[3] and was not cross-examined upon it.
[3]Affidavit of Graeme Smith sworn on 8 June 2023.
Mr Kesper tendered:
(a)Reports and letters of Mr Craig Timms, the treating neurosurgeon, dated 15 August 2017, 8 September 2017, 16 February 2023 and 23 May 2023;
(b)A medical report of the treating general practitioner, Dr Chris Madden, with his clinical records, dated 25 April 2022;
(c)A medical report of a neurosurgeon, Dr Hazem Akil, dated 27 March 2023;
(d)An MRI scan of his cervical spine dated 20 June 2017.
VWA tendered:
(a)Reports of Mr Craig Timms dated 19 October 2017, 3 September 2021, 21 October 2021, and 15 December 2021;
(b)Report of Dr Michael Lucas, occupational physician, dated 22 December 2021;
(c)Report of Dr Remy Glowinski, psychiatrist, dated 24 December 2021;
(d)Report of Dr Rene Dupuche, physician, dated 8 June 2022;
(e)Workers Injury Claim Form dated 14 October 2020;
(f)Certificates of Capacity dated 5 October 2020 to 25 November 2020;
(g)Health declaration provided to Monash Health dated 12 February 2021;
(h)Workers Injury Claim Form dated 3 December 2021;
(i)Certificates of Capacity dated 6 July 2022 to 19 April 2023;
(j)Emerald Medical Centre attendance notes dated 24 August 2000 to 8 February 2023;
(k)Hills Physiotherapy attendance notes dated 3 July 2017 to 2 December 2020;
(l)Four Certificates of Capacity dated 11 May 2012, 23 May 2012, 26 April 2013 and 6 October 2014;
(m)Nabenet Initial Return to Work Report dated 2 February 2022.

Mr Kesper’s evidence

Mr Kesper, at the time of the County Court hearing, was 60 years of age. He had worked as an operating theatre technician with Eastern Health from 2006 to January 2021, and then with Monash Health from February 2021. He no longer works due to the back injury.
Mr Kesper said that the neck injury occurred by way of gradual process while working with Eastern Health. The job involved lifting and moving patients, under anaesthetic. He would often do the majority of the patient physical transfer after an operation had finished without assistance from the nursing staff, and he would have to manually push heavy patients onto old fashioned and heavy beds.
Although not entirely clear, it seems that Mr Kesper’s neck pain commenced in early 2017. His first medical consultation was with his general practitioner, Dr Madden on 19 June 2017. He then had physiotherapy treatment for his neck and performed assigned exercises to relieve the pain. The neck pain became worse, and he then sought medical treatment from a neurosurgeon, Mr Craig Timms, who recommended surgery. A cervical discectomy and fusion at the C5–C6 and C6–C7 was performed by Mr Timms in September 2017.
After his cervical spine surgery, he returned to work initially performing light duties for a couple of weeks and then full duties. He did not return to Dr Madden for treatment for his neck after September 2017.
On 30 September 2020 (ie, three years after the neck injury and the surgery) while on unrestricted duties with Eastern Health, Mr Kesper sustained an injury to his lower back. He made a claim for compensation in respect of that injury on 14 October 2020. He submitted a number of Workcover certificates (dated 5 October, 19 October, 2 November, 11 November and 25 November 2020) which referred to an acute back injury and listed physical restrictions for his return to work.
On 15 December 2020, a certificate from his physiotherapist cleared him as fit for pre-injury duties as a theatre technician. He transferred from a permanent part-time working arrangement to effectively full-time in May–June 2021, performing the normal duties of a theatre technician.
In July 2021, while working at Monash Health, he sustained another injury to his lower back. He was admitted to Casey Hospital for treatment for his back for close to three weeks. He returned to Mr Timms who performed a L4–L5 microdiscectomy on 17 September 2021. He has not worked since this time.
He is currently in receipt of weekly payments of compensation in respect of the back injury. His back injury is a greater disability than that of his neck and has been significantly incapacitating.
In Mr Kesper’s first affidavit, he said as follows as to the ongoing effects of the neck injury:
20.Unfortunately, the surgery wasn’t as successful as I had hoped. While I was able to get back to work, the neck wasn’t the same and has never been since.
21.The neck has continued to creak and crunch. I feel sudden electric shock type twinges of pain. These can be mild, and they can be sharp pain also. It worries me that there is still some sort of nerve interference going on if my neck feels this way.
…
23.As for the neck, it is a constant and daily problem for me. I am limited in how I can move the head and neck. Moving the head and neck up and down and to the left and right can be painful, particularly at the limits of movement in each direction. It is certainly the case that I am aware every hour of every day that the neck has been partially fused solid.
24.I was warned a long time ago that fusing one level of the cervical spine places more strain on the adjacent levels and that I should expect problems and arthritis at those adjacent levels. It seems to me that this is what is now happening to the neck, as I am feeling pain that seems to spread up and down from the level of the fusion.
25.I am now off work mainly as a result of my lower back injury and I take painkillers for that injury. Those painkillers also help to some extent with neck pain. Having said that, to be clear, if I hadn’t injured my lower back, I would still need painkillers to deal with neck pain.
26.On a day-to-day basis I am pretty limited in what I do these days. This is because of the lower back more at the moment than the neck. That said, movements or tasks requiring more than minimal movement of the neck become painful and are often impossible. Simply driving a car and looking around for traffic is frequently problematic. Looking up to reach for something from a cabinet can also often be problematic.
27.I like to grow and exhibit African violets. This has been a hobby for some time. I find that even this is compromised by my neck injury, as I find that the neck (and low back) becomes painful after even only a short time in the garden. I also find it difficult to show dogs and practice archery which I used to as a result of my neck.
28.My sleep is also affected. While the lower back is the more painful, it is very hard to get comfortable with the neck being fused. I spend ages in bed trying to find a comfortable position to rest the head and/or neck. I often feel that there’s no escape from the neck injury no matter what I try to do.
In his second affidavit, he said:
3.Unfortunately, my neck has remained much the same since the 2-level cervical discectomy and fusion surgery in 2017.
4.As I described in my previous affidavit, the neck has continued to creak and crunch and intermittently give me electric shock type twinges or shooting feelings of pain. Moving the [sic] up and down and/or to the left and right is still painful at the limits of movement in each direction. This is a particular issue when I am driving a car in traffic and have to look about. Tilting my head back to look upwards is similarly painful and this only gets worse the further I try to move the head.
…
6.I am taking medication for pain in general and that medication, of course, helps to deal with both neck and back pain. In that respect, I am taking the following:
•Oxycodone — mornings
•Amitriptyline — 2 tablets at night
•Panadol — 2 tablets each 4 hours
•Targin — 5mg in the evening
7.As for the neck, the above medications dull the pain. If the neck is really playing up, then the tablets don’t seem to be able to do much, no matter how strong they are.
8.My sleep is also still affected. I have purchased a special pillow that has a raised section that fits under my neck and then a lower scooped out section to cradle the head. This seems to help to some extent, although it isn’t a total cure. I still have to take medication and lie my head down on the right side if I am to get off to sleep. It is also still inevitable that I will flare up pain during the night when I move the wrong way and will wake up with neck pain.
25In his third affidavit, he said:
3.Prior to undergoing the surgery, I consulted Hills Physiotherapy in Emerald, and I had physiotherapy treatment for my neck. The physiotherapist provided me with a list of exercises for my neck to perform at home. After I had the surgery and following my return to work, I continued to perform those exercises at home on an almost daily basis and also while at work between cases and also sometimes when lengthy operations were being performed, and I had the time to perform the exercises. I continue to perform these exercises at the present time, and I also use a heat pack and cold pack regularly for the pain in my neck. The heat pack consists of a wheat bag which I heat in the microwave.
4.After the surgery I recall my surgeon telling me to be very careful and sensible in respect of work activities because of the injury to my neck, and I attempted to comply with his advice. When I returned to work, although I was not taking hard prescription medication for neck pain, I was taking Panadol and Nurofen regularly throughout the day on most days and this continued until I suffered injury to my back.
5.I wish to clarify the recreational activities which have been affected by my neck injury. After I suffered the injury, I purchased a compound bow and arrow which I intended to hunt with but because of the pressure of the compound bow being set at 45 pounds, I could not draw back the bow due to my neck disability and pain. I attended the Cockatoo Archery Club to obtain a lesson but pulling the bow to the extent required was too painful and there was too much pressure on my neck and shoulders, and I consequently ceased archery. I had paid $1,600 for the compression bow. It is still at home gathering dust.
6.Before the neck injury I was breeding and showing large dogs on a very regular basis including nearly every weekend in dog shows at Cranbourne and sometimes interstate. I used to have 10 dogs, but I now only have five. After the neck injury on one occasion, I tried to show them at the Adelaide Royal Show in September of 2019, but I was dismissed from the ring because I could not get around the ring due to my neck pain and due to the fact that I could not bend down to straighten the legs of the dog and hold it still for the Judge to inspect it. Further I could not run around the ring with the dog because of neck pain.
7.Prior to the neck injury I also enjoyed shooting foxes with my 12-gauge shot guns, but after I suffered the neck injury, I had to cease that activity because of the recoil of the 12-gauge gun. Prior to the injury I used to go fox shooting regularly.
8.Other activities affected by my neck injury have been in respect of breeding of poultry with the lifting of heavy bags of feed and also chain sawing for firewood for our open fire. We live on three acres and there are plenty of fallen trees and I used to use the chainsaw to gather firewood, but I have not chain sawed since I suffered the neck injury. The vibration of the chain saws caused neck pain and I ceased.
9.I am also limited in respect of my ability to drive because of the restriction I have in being able to turn my neck to the right to view oncoming traffic. I rely heavily on the mirrors on my vehicle. My low back pain also makes driving difficult, but it is the turning of my head to the right which is restrictive when driving.
10.I continue to suffer restriction of movement to my neck and to turn to the right and I often have to turn my whole upper torso. I also find looking down difficult and it causes pain. Heavy lifting also causes neck and shoulder pain as well as causing low back pain.
11.I am also limited with some housework because of my neck especially reaching up and performing repetitive mopping. I am also restricted with gardening which requires looking down for lengthy periods.
12.I continue to suffer ongoing neck pain which varies in intensity from day to day but very often is worse at the end of the day. I am taking prescription medication for my low back pain, and it also assists with my neck pain.
At the hearing, Mr Kesper’s cross-examination elicited the following:
(a)He had not made a Workcover claim for compensation for weekly payments or medical and like expenses for the neck injury.[4]
[4]Reasons, [86].
(b)He lodged Workcover claim forms for his lower back injuries in 2020 and 2021.
(c)When transferring from Eastern Health to Monash Health in February 2021, Mr Kesper, when asked whether he suffered from ‘any pre-existing injury or disease which could be affected by the nature of tasks associated with your proposed job’, responded ‘no’.[5]
[5]Reasons, [89].
(d)By either May or early June 2021, he was working in permanent full-time employment.
(e)In the past, he had lodged Workcover certificates — in May 2012 for anxiety; in April 2013 for a soft tissue ring finger injury; and in October 2014, for a low back strain.
(f)When asked why he had not returned to see Mr Timms in relation to his neck he said that he could recall a conversation with Mr Timms about being cautious when lifting and bending, and undertaking a gentle return to work.
(g)He had not seen a physiotherapist after 3 July 2017 in relation to his neck.
(h)He had not mentioned his trip to Bali in 2020 in his affidavits. Mr Kesper said that he was not travelling to Bali because of both neck and back pain, but accepted that, at the present time, he had problems with prolonged sitting due to his back, and that stopped him from travelling.[6]
(i)In September 2018, when he saw Dr Madden for his back pain, he probably did not have neck symptoms at that time.[7]
(j)Apart from the post-operative period in September 2017, he had continued to work as a theatre technician, but he did this with pain in his neck.
(k)He had been on medication since September 2018 for his back, but this also helped with his neck symptoms.[8]
(l)He had not shown dogs since September 2019.
(m)His neck impairs his ability to drive.
(n)He continues to have left arm symptoms related to his neck.
(o)His certificates for incapacity for work in 2022 and 2023 related to an L4–L5 disc prolapse.[9]
(p)In December 2021, he told Mr Timms that he was at home and struggling, with a lot of pain in the right hip region and had persistent chronic pain across the back and symptoms down his left leg. He was not sleeping so well and was on Oxycodone and Targin.[10]
(q)He did not go back to see a doctor about his neck because there was very little they could do for him, and he relied on over-the-counter medication to get him through.
[6]Reasons, [104].
[7]Reasons, [106].
[8]Reasons, [110].
[9]Reasons, [115].
[10]Reasons, [116].

Mr Smith’s evidence

Mr Smith deposed in his affidavit of 8 June 2023 that he was the long-time partner of Mr Kesper. He recalled Mr Kesper suffering from neck pain in about late 2016 and then into 2017. Mr Kesper was limited in movement in his head and neck and would often come home from work in obvious pain. He struggled to carry out tasks around the house and in the garden and showing his dogs.
Mr Kesper was laid up after the surgery in 2017 for some time. At the present time, Mr Kesper still moves his neck gingerly and struggles with pain when looking around while driving a car. He also uses a special pillow to support his head and neck. He still mentions neck pain frequently even though he takes a large amount of medication each day. It was abundantly clear to Mr Smith that Mr Kesper was still carrying a neck injury that was apparent on observation.
Mr Smith said that he was well aware of the back injury which ‘finally stopped [Mr Kesper’s] career in its tracks’ and ultimately cost him his ability to keep working.
Mr Smith was not cross-examined.

The medical evidence

The treating doctors

Dr Madden’s evidence came in the form of reports (the most recent of 25 April 2022) and his clinical records.
In his final report, Dr Madden noted that his initial consultation with Mr Kesper in respect of his neck condition was on 19 June 2017, and that his last consult with his patient in relation to the neck was on 4 September 2017. Based on the MRI of June 2017, Dr Madden diagnosed a large central disc protrusion at C5–C6 and a degenerated disc at C6–C7. The doctor noted that the symptoms were acutely painful in June–July 2017 and that Mr Kesper required surgical management and medication. In June 2017, he recorded that Mr Kesper’s neck condition interfered with his work, his sleep, and his ability to carry out recreational activities.
Dr Madden was aware of the surgery performed on 11 September 2017 by Mr Timms, and opined that Mr Kesper’s injuries were consistent with what he (Mr Kesper) had reported.
Mr Timms reported to Dr Madden on 15 August 2017:
When I examine Richard, he has weakness in the left arm compared to the right, but sensation is okay, but he does report pins and needles down to the tips of the fingers in both the C6 and C7 distributions.
His recent MRI scan is very helpful. It shows a large central disc protrusion at C5-6 and interestingly a very degenerated disc at C6-7 with marked Modic changes.
…
Given his deficit and the persistence of the symptoms, I think it is reasonable to offer him surgical decompression in the form of an anterior cervical discectomy and fusion at the levels of both C5-6 and C6-7.
Subsequently in his report of 16 February 2023, Mr Timms noted that he arranged for an anterior cervical discectomy and fusion at the levels of C5–C6 and C6–C7, which was carried out on 8 September 2017 at Epworth Hospital. The surgery went routinely. He reviewed Mr Kesper on 19 October 2017 and noted that he was recovering well from surgery and had returned to work, and that the symptoms had ‘significantly improved’.
Mr Timm’s diagnosis was:
Mr Richard Kesper had cervical disc osteophyte complexes causing neural compression and arm radiculopathy. He recovered from the surgery and returned to work as a theatre technician, but did have some residual mild symptoms.
Mr Timms thought that Mr Kesper’s cervical spine injury had stabilised, but that he was likely to have some residual neck pain and some residual lack of range of movement. He regarded the cervical condition as stable.
Mr Timms subsequently reviewed Mr Kesper several years later, on 3 September 2021, in relation to his back injury. On 7 September 2021, he performed a microdiscectomy at L4–L5.
In a report of 23 May 2023, Mr Timms proffered an expert opinion as to the role of the movements of heavy patients in an operating theatre as carried out by Mr Kesper. Noting that ‘the plague of obesity’ had made a theatre technician’s role ‘very demanding’, he said such a job was likely ‘a significant contributing feature’ to both Mr Kesper’s neck and back injuries.

The medico-legal doctors

Dr Akil, a neurosurgeon, examined Mr Kesper on 27 March 2023 and in his report of the same day, noted the following symptoms:
1.He continues to have persistent left neck pain. The pain is described more often ache [sic] and worsens on the movement of his neck. The pain radiates towards the upper part of his left shoulder and goes all the way to his left arm all the way to the hand. The pain is less intense than prior to the surgery performed by Dr Greg Timms, but he finds it interfering with his everyday activity.
2.Persistent lower back pain. This pain continues to be severe with radiation towards the left leg all the way to the foot. He is unable to walk around without the aid of a walking stick. He feels that he is unable to do many activities at home and he relies on his partner to do so.
Dr Akil’s diagnosis was as follows:
It is clear from the history that he has aggravation of cervical spondylosis as well as aggravation of lumbar spondylosis. The aggravation of cervical spondylosis resulted in a left C6 radiculopathy caused by a disc protrusion and foraminal stenosis and the aggravation of the lumbar spondylosis resulted in a left L4 and L5 radiculopathy caused by foraminal narrowing and a disc protrusion.
The nature of his work as a theatre technician with its physically demanding aspect, in my opinion is a significant contributing factor to his symptoms and the need for two surgeries. Unfortunately, the surgeries did not eliminate the pain completely and it is in my opinion likely that he will continue to suffer the consequences of these two injuries in the foreseeable future.
Dr Akil opined that the prognosis for both injuries was poor and noted the impact on Mr Kesper’s life in these terms:
He is unable to walk or run his dogs. He used to be very keen on hunting, but he stopped doing so.
He finds it very difficult to drive distances longer than 50 to 60 km.
He lives in an acreage where he relies on his partner to look after it.
He can only sleep on the right side of his body.
Dr Lucas, an occupational physician, conducted a Telehealth consultation on behalf of the VWA agent and furnished a report dated 22 December 2021, addressing solely Mr Kesper’s lower back claim (as requested). He diagnosed Mr Kesper as having ‘mechanical low back pain with radicular symptoms. Post L4–L5 microdiscectomy on 17 September 2021’.
Dr Lucas recited that Mr Kesper had reported restrictions for usual tasks such as gardening, interacting with his dogs, collecting eggs and domestic tasks and had not returned to lawn bowls. He said that Mr Kesper ‘is currently maintaining a usual home presence, undertaking components of his usual daily activities, limiting more active tasks. Mr Kesper is undertaking required driving’.
He concluded that ‘on the basis of current review, a restricted/limited work capacity may reasonably be supported’ as attributable to the back condition.
Dr Dupuche, a consultant physician, furnished a report dated 8 June 2022 at the request of the VWA agent. He also was asked to report solely on Mr Kesper’s back condition.
Dr Dupuche’s diagnosis of the condition of Mr Kesper’s lumbar spine was of:
•Disc annulus injury;
•Disc prolapse;
•Disc fragment;
•Foraminal stenosis bilaterally;
•Neurocompression left L5 and probably right L5; and
•Neurocompression possible at other levels.
Dr Dupuche concluded that ‘the worker has no current work capacity, and this is because of his current clinical situation, as described above. He has chronic pain, difficulty standing, difficulty walking, difficulty lifting and requiring the assistance of walking aids. In addition, he has restricted driving ability and is unable to use public transport’.

The judge’s reasons

The judge’s reasons are comprehensive and comprehensible.
The judge noted that counsel for Mr Kesper argued that the cervical spine injury, regardless of any problems associated with the lower back injury, sufficiently inhibited his activities and return to employment such as to constitute a serious injury within the meaning of the WIRC Act.[11] Counsel for VWA contended that Mr Kesper had not disentangled the consequences of the two impairments sufficiently to identify the cervical injury as a serious injury and added (even if he had done so) the ‘absence of treatment, and lack of pain relieving medications prescribed for his cervical spine as opposed to his lumbar spine injury’ meant that he did not satisfy the serious injury test.[12]
[11]Reasons, [14]–[15].
[12]Reasons, [15].
After setting out Mr Kesper’s evidence in chief, details of the evidence of Mr Smith (by affidavit) and the medical evidence (the medical reports of Dr Akil, Dr Madden, Mr Timms, Dr Lucas, Dr Glowinski and Dr Dupuche), the judge set out in considerable detail[13] the cross-examination of Mr Kesper, much of which is summarised at [26] above.
[13]Reasons, [86]–[128].
The judge then summarised the submissions of the parties and moved to his analysis and findings. His Honour noted that Mr Kesper was obliged to identify each of the injuries sustained by him and to delineate the consequences of that injury — in terms of pain and suffering consequences.[14]
[14]Reasons, [169].
At [171] the judge made the following critical finding (after noting that counsel for VWA had attacked the credit of Mr Kesper):
I am satisfied that the plaintiff gave a largely credible and honest account of his circumstances. He did not shy away from the fact that in many respects, his lumbar injury is more egregious in its effects on him in terms of pain, than his cervical injury, and indeed, to the point that he is not working because of the state of his back, but he was also adamant that the pain in his neck is itself of sufficient quality and constancy as to separately interfere with his enjoyment of life, and not exclusively by way of pursuits and activities that have been later impacted by his back condition. I accept that the plaintiff’s neck injury continues to visit consequences on the plaintiff, but that fact of itself is not the test for the grant of a serious injury certificate.[15]
[15]Reasons, [171].
This finding was consistent with His Honour’s earlier observation that Mr Kesper was ‘very frank in his evidence and explained that it is his lower back injury that is more problematic and painful than is his neck injury’.[16]
[16]Reasons, [24].
His Honour then at [173]–[174] of the Reasons referred to the decision of this Court in Peak Engineering Pty Ltd v McKenzie[17] and said:
Because I am satisfied that two different injuries occurring at different times are concurrently producing pain and suffering consequences for the plaintiff, I am required to separate out the components of the injury on each occasion of injury, and it is necessary for me to make findings about all of the pain and suffering consequences which are operative at the date of the hearing. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.[18]
[17][2014] VSCA 67 (‘Peak Engineering’).
[18]Reasons, [174].
The judge then referred to another decision of this Court in Dressing v Porter[19] and concluded that ‘[Mr Kesper] has separately identified pain and suffering symptoms that are attributable to the ongoing consequences from the neck injury, separate to the ongoing symptom of his back injury for the reasons that follow’.[20]
[19][2006] VSCA 215.
[20]Reasons, [177].
His Honour then made the following findings:
I find that in 2017 the plaintiff suffered an aggravation of cervical spondylosis that resulted in left C6 radiculopathy caused by a disc protrusion and foraminal stenosis. Surgery followed in the form of an anterior cervical discectomy and fusion performed by Mr Timms.
I find that the plaintiff returned to work following surgery, and he remained able to perform his employment as a theatre technician. I note the plaintiff’s evidence in re-examination in which he referred to having encountered certain limitations on the movement of patients from the lateral to supine, the supine to lithotomy, lithotomy back to supine, and pushing the bed back up for the anaesthetist, along with patient transport. However, even accepting these limitations, and I note that they were not identified in the plaintiff’s affidavits, and neither do the complications appear to have been of a quality that warranted a medical attendance or came to be mentioned in clinical notes following the plaintiff’s return to work from neck surgery, I consider that they more sensibly fall into that description that Mr Timms said he discussed with the plaintiff and that required the taking by the plaintiff of sensible precautions, but I am not satisfied they reveal pain and suffering consequences of note.
I find that when the plaintiff ceased work with Monash Health, he did so because of the consequences of the lumbar back injury suffered in 2021, and not because of his cervical injury, in 2017.[21]
[21]Reasons, [178]–[180].
His Honour concluded that it was primarily Mr Kesper’s back pain that inhibited his sleep — and not his neck pain.[22] The judge also dismissed Mr Kesper’s complaint that he had been unable to engage in his pastime of showing dogs because of his neck pain. He noted that Mr Kesper did not seek any medical attention after an incident at the Adelaide Royal Show in 2019 and that his pain had been relieved by over-the-counter medication. The judge then concluded that it was ‘the parlous condition of the plaintiff’s back that prevents the breeding and showing of dogs’.[23]
[22]Reasons, [183].
[23]Reasons, [184].
The judge accepted that Mr Kesper’s neck condition meant that he had been unable to use his bow in his archery pastime[24] and that his neck interfered with growing specimen flowers.[25]
[24]Reasons, [185].
[25]Reasons, [188].
The judge also accepted that the neck condition ‘to some extent’ interfered with his ability to drive, to go shooting, and to engage in certain ‘but very limited’ domestic activity. However, his Honour was not satisfied that the ongoing effects interfered with his capacity for personal self-care or travel. He noted that Mr Kesper was not receiving any ongoing treatment for his neck but that the medicine prescribed for his back condition could well provide an efficacious or complementary effect upon his neck.[26]
[26]Reasons, [195].
Noting Mr Timms’s opinion that Mr Kesper was likely to have some mild residual neck pain and some residual restricted range of movement following surgery, his Honour observed that on several occasions when being examined by doctors for VWA, Mr Kesper had not referred to any ongoing neck symptoms.[27]
[27]Reasons, [199].
His Honour then addressed the opinion of the neurosurgeon Dr Akil:
I have considered the effects of Dr Akil’s recent medico-legal report dated 27 March 2023. In his report, he recorded that the plaintiff continues to have persistent left neck pain that the plaintiff described as more often an ache and it is ‘a consistent ache and worsens on the movement of that, particularly in the p.m. and in the cold.’ Dr Akil also recorded that the plaintiff’s neck pain radiated towards the upper part of the left shoulder and ‘goes all the way to his left arm, all the way to the hand. The pain is less intense than prior to the surgery performed by Mr Greg Timms but he finds it interfering in his everyday activity.’ Whether the reference by Dr Akil to radiating pain should be attributed to the cervical condition, given the absence of any reference to it by Mr Timms following on from surgery, nonetheless, such of the interferences or symptoms of pain which I have already addressed that remain from the neck injury, even if on occasions radiating to the left shoulder and left arm and hand, do not elevate the injury to a serious injury.[28]
[28]Reasons, [201] (citations omitted).
His Honour then placed significance on the fact that when Mr Kesper was seen by doctors in relation to his back claim, he did not refer to the troublesome state of his neck,[29] and concluded that the state of Mr Kesper’s neck does not intrude on him in a manner and to the extent that would satisfy the test for seriousness: ‘I think it is reasonable to presume that the plaintiff might be expected to have alerted one or other of the doctors refereed to, to the condition of his neck when asked about any previous medical history, despite the examinations being conducted in regard to his back’.[30]
[29]Reasons, [199]–[200].
[30]Reasons, [200].
His Honour said:[31]
My findings have also been informed by Haden Engineering Pty Ltd v McKinnon,[32] in which Maxwell P set out various principles to which recourse is invariably had in serious injury applications in an effort to assist in evaluating the ‘pain and suffering consequences’ in a given set of circumstances. In particular, at paragraphs [14]–[15] under the heading ‘The disabling effect of pain’, the learned President said:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained’.[33]
[31]Reasons, [206].
[32](2010) 31 VR 1; [2010] VSCA 69.
[33]Dwyer [No 2] [2008] VSCA 260, [27] (Ashley JA, Nettle JA agreeing at [1], Dodds-Streeton JA agreeing at [31]). See also Stijepicv One Force Group Aust Pty Ltd [2009] VSCA 181, [44] (Ashley JA and Beach AJA) (‘Stijepic’).
Then in concluding that Mr Kesper had not satisfied the serious injury test the judge said:
Adopting that passage from Haden, I am not persuaded that the extent to which pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life, when due consideration is afforded to what has been lost with what has been retained as a result of the neck injury, results in the plaintiff’s losses attributable to it being serious. Although I accept that they are not trivial, I am not satisfied that, for example, the plaintiff can be said to ‘suffer a continuous substantial level of pain.’ Rather, I am satisfied that the plaintiff suffers neck discomfort and there are instances when the pain is elevated, but it certainly does not dominate the plaintiff’s life.
Considered overall, even if there are impairment consequences and pain consequences for the plaintiff that could be described as marked or significant, I am unable to accept that the pain and suffering consequences could be said to be at a level where his experience of pain and the impairment consequences of his condition, within the range of possible impairments, can be fairly described as very considerable. In Jiwani v 7 Chefs Pty Ltd, his Honour Judge Purcell said that ‘there are some cases that are clearly serious, and there are some that are clearly not. There are some that fall somewhere in the middle of the range of possible impairments and impairment consequences, and the proceeding before me is one such example.’ I adopt his Honour’s statement. The plaintiff’s case falls somewhere in the middle.[34]
[34]Reasons, [207]–[208] (citations omitted).

The proposed grounds of appeal

The proposed grounds of appeal[35] are as follows:
[35]For convenience, each proposed ground of appeal will be referred to as a ‘ground’.
1.The decision of the trial Judge is plainly wrong, or alternatively, not borne out by a fair reading of the whole of the evidence.
2.The trial Judge erred in law at [207] in holding that the application failed because the pain and suffering consequences in evidence ‘certainly does not dominate the Plaintiff’s life’.
3.The trial Judge erred in law at [208] in applying a test that cases which fall ‘somewhere in the middle of the range of possible impairments and impairment consequences,’ between cases which are ‘clearly serious’ and others which are ‘clearly not’ are to be dismissed.
4.The reasons for judgment do not disclose an adequate process of reasoning to demonstrate why upon the proper consideration of the whole of the evidence the Applicant’s application was refused.

Consideration of ground 1: the wrong decision

Standard of appellate review

Ground 1 asserts that the decision of the trial judge is plainly wrong, or alternatively not borne out by a fair reading of the whole of the evidence. It is framed by reference to the House v the King[36] standard of appellate review applied to serious injury applications following the decision of this Court in Mobilio v Balliotis.[37]
[36](1936) 55 CLR 499; [1936] HCA 40.
[37][1998] 3 VR 833.
However, it is now established[38] that the standard of review on an appeal challenging a judge’s decision to refuse leave to bring proceedings claiming damages in respect of a serious injury is the correctness standard, rather than the House v the King[39] standard.
[38]Connelly v Transport Accident Commission [2024] VSCA 20, [38]–[40] (Beach, Niall JJA and J Forrest AJA) (‘Connelly’); Victorian WorkCover Authority v Perumal [2024] VSCA 107, [100] (Beach, Walker JJA and O’Meara AJA) (‘Perumal’).
[39](1936) 55 CLR 499; [1936] HCA 40.
The correctness standard is as stated by the High Court (Bell, Gageler, Nettle and Edelman JJ) in Lee v Lee:
A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.[40]
[40](2019) 266 CLR 129, 148–9 [55]; [2019] HCA 28 (emphasis added) (citations omitted). See also Warren v Coombes (1979) 142 CLR 531, 551–2 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9; Fox v Percy (2003) 214 CLR 118, 125–9 [22]–[31] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 686–7 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); [2016] HCA 22. Testel Australia Pty Ltd v Goulding [2023] SASCA 116, [28]–[31] (Livesey P, Doyle JA and Stein AJA).
Senior counsel for VWA submitted that ground 1 should therefore be understood as challenging the correctness of the judge’s finding that Mr Kesper had not proved on the balance of probabilities that his pain and suffering resulting from the impairment to his neck, when judged by a comparison with other cases in the range of possible impairments of that nature, is fairly described as more than significant or marked, and at least very considerable.[41]
[41]Reasons, [196]–[208], referring to s 325(2)(c).
VWA submitted that none of the grounds of appeal, including ground 1, alleged an error in the judge’s fact-finding exercise. Properly understood, ground 1 was a challenge to a ‘value judgment’, rather than to any finding of fact.
VWA then submitted that the appellate exercise described in Lee v Lee did not apply to grounds which alleged errors in value judgments (as opposed to errors of fact). Where there was a challenge to a value judgment, such as whether an applicant satisfied the ‘very considerable’ test, the Court should refrain from ‘simply’ re-deciding the value judgment for itself, and should instead show deference to the conclusion reached at first instance.
In support of this submission, VWA referred to this Court’s decision in Perumal, where Beach, Walker JJA and O’Meara AJA said:
In argument, counsel for the applicant relevantly submitted that:
…
(f)the correct findings that the Court should make, upon a ‘real review of the evidence’, were that the respondent had a current capacity for full time hours in suitable employment and that the Court otherwise could not reach any conclusion as to the extent of any permanent restriction.
Some degree of care must be taken with a submission of the latter kind, as it can tend to suggest that the Court may merely re-decide the matter for itself. It is now established that the standard of review on an appeal of this kind is the correctness standard — that is, the question for this Court is not whether it was open to the primary judge to reach the conclusion he reached, but whether he was correct to reach that conclusion. That is because the question whether an injury satisfies the ‘very considerable’ test is one that admits of only two answers: either the injury is a serious injury as defined in the WIRC Act, or it is not. That is, there is ‘but one legally permissible answer, even if that answer involves a value judgment’. Nonetheless, it must steadily be borne in mind that the Court may exercise its appellate power only if satisfied that there was error on the part of the primary decision-maker. In assessing whether error is established, it remains necessary to make proper allowance for the advantages of the trial judge, in particular in seeing and hearing the witnesses give evidence.[42]
[42][2024] VSCA 107, [99]–[100] (emphasis added) (citations omitted).
VWA also pointed to the terms of s 325(2)(c) of the WIRC Act, which speak of the need to judge the relevant impairment by comparison with other cases in the range of possible impairments. Such a ‘comparative’ task was said to be consistent with a need for deference to the decision at first instance, because it is the County Court that undertakes this comparative task ‘day after day’ in serious injury cases and thereby acquires a familiarity with the range by which cases are to be assessed.
Two further reasons appeared to be advanced for why this Court should refrain from ‘simply’ reconsidering the case for itself — that is, why it should show deference to the conclusion of a County Court judge on the application of the ‘very considerable’ test.
The first was based on Allesch v Maunz, where Gaudron, McHugh, Gummow and Hayne JJ said that on an appeal by rehearing, ‘the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error’.[43] Thus, VWA said, this Court was not permitted to simply put aside the judge’s findings and reconsider the matter as if it were being argued afresh. If, in the absence of an alleged error in the judge’s fact finding, this Court did not show deference to the judge’s conclusion, then ‘in truth’ it would be re-evaluating the case without finding an error to begin with.
[43](2000) 203 CLR 172, 180–1; [2000] HCA 40.
The second was based on policy. If no deference was to be shown to the judge’s value judgment, then ‘the County Court just becomes a case where you tender documents, and we all come to the Court of Appeal and argue our case on value judgment’. Consequently, there would be ‘a lot of cases’ in this Court challenging a value judgment under the WIRC Act.
We do not accept VWA’s submission that deference should be afforded to decisions of this kind made by the County Court, over and above the deference already provided for in Lee v Lee[44] — and, indeed, Perumal[45] — such as for findings relevantly affected by impressions of credibility or reliability. Although the ‘very considerable’ test is an evaluative one,[46] the judge’s finding that Mr Kesper’s pain and suffering consequences did not satisfy the ‘very considerable’ test was the ultimate finding of fact. Where such a finding is not informed by relevant impressions of credibility or reliability, generally this Court is in as good a position as the primary judge to determine whether it is correct. The present case falls within that category — Mr Kesper’s evidence was treated by the judge as being ‘largely honest and credible’ and ‘very frank’.
[44](2019) 266 CLR 129, 148–9 [55] (Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28.
[45]‘In assessing whether error is established, it remains necessary to make proper allowance for advantages of the trial judge, in particular in seeing and hearing the witnesses give evidence’: [2024] VSCA 107, [100] (Beach, Walker JJA and O’Meara AJA) (citations omitted).
[46]See GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, 865–6 [15]–[17] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32.
There is nothing in the terms of s 325(2)(c) that supports the argument for deference to the conclusions reached by judges of the County Court. The County Court is not an expert tribunal, nor is there a separate ‘serious injury’ division dedicated to the hearing of these type of cases. Rather, serious injury applications can be heard by any member of the County Court, with or without experience in this area. In terms of determining where a case may lie within a range of cases, we see no reason to regard the experience of a County Court judge as conveying a particular advantage over and above that of this Court (which also hears and determines many of these cases, on review).
VWA’s position is also not assisted by statements in the authorities about the powers of this Court being exercisable only upon the demonstration of error. These statements do not mean, as VWA appeared to suggest, that there is some separate hurdle — namely, the demonstration of error — that needs to be met before this Court can embark on a consideration of the correctness of an application of the ‘very considerable’ test. As this Court said in Connelly, on an appeal by way of rehearing in a serious injury application, we are ‘to conduct a real review of the evidence and, while observing the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record, to give the judgment which in its opinion ought to have been given at first instance’.[47] The requirement to demonstrate error is satisfied in the very process of this review.
[47][2024] VSCA 20, [39] (Beach, Niall JJA and J Forrest AJA).
As for VWA’s contention that failing to afford deference in the way contended for would result in ‘a lot of cases’ in this Court challenging a value judgment under the WIRC Act, the remarks of Gibbs CJ, Jacobs and Murphy JJ in Warren v Coombes are instructive.[48] In considering a finding that the appellant had not established negligence, a finding which might also be characterised as ‘evaluative’,[49] their Honours said that neither the fact that opinions might differ on such a finding, nor the desirability of finality of litigation, relieved an appellate court of its duty to decide the case for itself:
The duty of the appellate court is to decide the case — the facts as well as the law — for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments that can be advanced in favour of the view that an appellate court should defer to the decision of the trial judge on such a question are that opinions on these matters very frequently differ, and that it is in the public interest that there should be finality in litigation. The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases. The interest of the community in the speedy termination of litigation might, no doubt, be an argument in favour of the complete abolition of appeals, although that would be far too high a price to pay merely for finality. However, if the law confers a right of appeal, the appeal should be a reality, not an illusion.[50]

Was the judge’s decision correct? (ground 1)

[48](1979) 142 CLR 531; [1979] HCA 9.

[49]See Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 558–60 [39]–[41], 562–3 [46] (Gageler J); [2018] HCA 30.

[50](1979) 142 CLR 531, 552–3; [1979] HCA 9.

In our view, the only viable ground of appeal which can resolve the application in Mr Kesper’s favour is ground 1, which we treat as a challenge to the correctness of the judge’s decision to refuse Mr Kesper’s application.
On this application, no issue arose under the serious injury provisions of the WIRC Act as to the relationship between Mr Kesper’s neck condition and his employment at Eastern Health.
Nor was there any contention that the condition of Mr Kesper’s cervical spine was anything other than permanent. In other words, it was not going to improve, and the symptoms from which he presently suffers will remain with him for life.
The task for the judge was to identify the injury suffered by Mr Kesper and then to examine the consequences of that injury.[51] As just mentioned, the judge was then required to decide whether the pain and suffering consequences of the neck injury were, in the words of the statute, ‘fairly described as … more than significant or marked, and … at least very considerable’. For that purpose, it was necessary to identify the consequences properly referable to that injury and to exclude any consequences referable to the subsequent back injury.[52]
[51]Humphries v Poljak [1992] 2 VR 129; Hamidi v Transport Accident Commission (2023) 104 MVR 282, 296 [49] (Beach, T Forrest and Kaye JJA); [2023] VSCA 139.
[52]Peak Engineering [2014] VSCA 67, [2] (Maxwell P, Redlich JA agreeing at [66], Dixon AJA agreeing at [67]).
While the serious injury test has been criticised as being ‘couched in the language of impression’,[53] it nevertheless remains the language of the statute and in determining whether it is satisfied, a ‘fact, degree and value judgment’ is required.[54]
[53]Stijepic [2009] VSCA 181, [41] (Ashley JA and Beach AJA); Haden (2010) 31 VR 1, 3 [3] (Maxwell P); [2010] VSCA 69.
[54]Humphries v Poljak [1992] 2 VR 129, 167 (McGarvie J), quoted with approval by the High Court in refusing special leave to appeal: Fleming v Hutchinson (1991) 66 ALJR 211.
The determination of the degree of the seriousness of the consequences of an injury is not to be determined by the use of a checklist, nor by reference to a plethora of cases with a myriad of different factual circumstances.[55] Rather, it requires a holistic assessment of the nature of the injury, the consequent level of Mr Kesper’s neck impairment and its effect, if any, on his activities — now and into the future — and then to determine whether that level of impairment meets the statutory requirements.
[55]Haden (2010) 31 VR 1, 11 [48] (Buchanan JA), 11 [51] (Nettle JA); Sutton (2011) 31 VR 100, 117 [89] (Tate JA, Ashley JA agreeing at 102 [1], Hargrave AJA agreeing at 121 [115]); [2011] VSCA 52; Wesfarmers Ltd v Lloyd [2016] VSCA 41, [34]–[35] (Osborn JA, Tate JA agreeing at [1], Santamaria JA agreeing at [49]) (‘Wesfarmers’). And see the discussion at [99]–[101] below.
The injury sustained by Mr Kesper was, on any view, significant. A double fusion of the cervical spine of a man in his sixties (or, for that matter, of any age) is a procedure of some importance. By its nature it must inevitably result, as Mr Timms and Dr Akil, the neurosurgeons, opined, in permanent restriction of movement of the neck. Of course, it is the level of impairment that is to be evaluated. However, the nature of the injury and any palliative operative procedure is relevant to the consequential level of impairment and, to the accuracy of the complaints made by the patient.
On the judge’s findings:
•The neck injury led to left C6 radiculopathy, requiring surgery in the form of a discectomy and double level fusion.
•Although he was able to return to work as a theatre technician, Mr Kesper continued to suffer limitations on movement when moving a patient — an integral part of his job working in a hospital theatre.
•His neck pain, at least in some way, affected his ability to sleep in that he has to sleep with a special pillow and when he is woken from sleep he experiences some neck pain.
•He could not use a bow in his archery pastime as a result of the neck pain.
•Because of his neck pain he could not engage in his pastime of shooting foxes.
•His neck condition means that he could not grow and exhibit African violets.
•His neck condition interferes with his ability to drive, and to engage in domestic activities which place pressure on his neck.
•He would continue to have mild residual neck pain.
As mentioned earlier, given the judge’s finding as to Mr Kesper’s credibility (see [52] above) and absent any other advantage, this Court is in as good a position as the judge to determine what flows from Mr Kesper’s evidence. We consider that there are several additional findings relevant to his level of impairment from the neck injury, namely:
•When he returned to work, both part-time and full time, Mr Kesper suffered pain and disability when carrying out the work — particularly painful towards the end of the day.
•He needed to take pain killing medication for his neck after he returned to work.
•His neck is a constant and daily problem which limits how he moves his head and neck. At times, the neck pain radiates into his left arm. This, it seems to us, is consistent with the nature of the procedure he underwent and is of significance. It is also consistent with the findings of the neurosurgeon Dr Akil, who saw him shortly prior to the hearing.
•While his back is more significant in terms of pain than his neck, the neck continues to cause him trouble and the pain is relieved by pain killing medication.
Mr Smith is Mr Kesper’s longstanding partner. His evidence was unchallenged. As to Mr Kesper’s level of disability from the neck injury:
•The neck injury limited the work Mr Kesper could do in the garden.
•Mr Kesper was severely incapacitated by the neck injury prior to, and for some time after, the neck surgery.
•Mr Kesper moves his neck gingerly and struggles with neck pain when driving a car, and uses a special pillow to support his head and neck in bed.
We accept his evidence which is consistent with that of Mr Kesper as to his (Mr Kesper’s) level of disability.
We do not share the judge’s view (see [62] above) that some account should be taken of Mr Kesper’s failure to refer to his neck symptoms when examined by Drs Lucas and Dupuche. Mr Kesper was referred to each doctor by the VWA claims agent solely in respect of his back injury. He told Dr Lucas about the cervical spine surgery. While it appears that he did not mention his neck condition in the course of his consultation with Dr Dupuche, this appointment and report was directed to formulating a return to work plan after the back surgery. We would discount this consideration.

There is one specific finding in which the judge preferred the back injury (rather than the neck injury) as the explanation for Mr Kesper’s particular impairment. This related to his inability to participate in the breeding and showing of dogs, which his Honour attributed to the ‘parlous condition of the plaintiff’s back’ and lack of evidence as to the connection with the neck injury.[56]
[56]Reasons, [184].
Mr Kesper said in his June 2023 affidavit that his neck injury resulted in him being dismissed from the ring at the Adelaide Royal Show in September 2019. In cross-examination, he was adamant that he stopped showing dogs after September 2019; ‘I’ve been totally unable to’ and that he did not go back to the doctor after that incident ‘because there’s very little they could do for me. I was relying on prescription — over-the-counter medication to get me through’.
The evidence of Mr Smith corroborated his account and, indeed, common sense would dictate that endeavouring to control a large dog in show conditions would place pressure on a fused cervical spine. This was also consistent with the opinion of Mr Timms as to the type of activities he should and should not do post neck fusion surgery.
We are satisfied that the neck injury and consequential impairment inhibited his showing of dogs after September 2019.
We should add that his Honour was correct in finding that the back injury also prevented Mr Kesper from showing dogs, but this did not mean that the neck injury was to be excluded as a cause.
Once the overall and permanent effects of the neck injury as set out above at [87]–[90] and [94]–[96], the result is that Mr Kesper has a permanent impairment of his cervical spine attributable to his employment at Eastern Health which is ‘fairly described as … more than significant or marked, and … at least very considerable’. The judge was in error in refusing the application.
Finally, we should mention a matter that arose in the course of the submissions and discussion which we touched upon at [85]. The judge referred to ‘various principles to which recourse is invariably had in serious injury applications’[57] as a result of this Court’s judgment in Haden.[58] It would seem that here his Honour was referring to [16] of Maxwell P’s judgment, which reads as follows:
[57]See [63] above.
[58](2010) 31 VR 1; [2010] VSCA 69.
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
·sleep;
·mobility;
·cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
·capacity for self-care and self-management;
·performance of household and family duties;
·recreational activities;
·social activities;
·sexual life; and
·enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.[59]
[59](2010) 31 VR 1, 5–6 [16] (Maxwell P); [2010] VSCA 69.
We note that the two judges sitting with the President in Haden also expressed an opinion on this issue. Nettle JA said:
As to matters of principle, however, I approach the appeal upon the basis that the assessment of whether pain and suffering consequences are sufficient to qualify an injury as a serious injury is a question of fact, degree and value judgment in the determination of which comparisons with other cases and check lists of relevant considerations are at best of limited utility.[60]
And Buchanan JA said:
Pain is not objectively measurable. Experience of and reaction to pain varies from one person to another. Accordingly, I share Nettle JA’s doubt as to the utility of comparing the evidence in the case at hand with the evidence in other cases or with a list of commonly encountered indicia of pain.[61]
[60](2010) 31 VR 1, 11 [51] (Nettle JA); [2010] VSCA 69.
[61](2010) 31 VR 1, 11 [48] (Buchanan JA); [2010] VSCA 69. See also Wesfarmers [2016] VSCA 41, [34]–[36] (Osborn JA, Tate JA agreeing at [1], Santamaria JA agreeing at [49]).
The end result is this: the matters referred to by Maxwell P in Haden might be used by a judge as indicia as to whether the serious injury test is made out, but they cannot qualify the statutory language of s 325(2)(c) of the WIRC Act. Indeed, it is clear that this was not intended. His Honour specifically said that the list was intended to be descriptive and not prescriptive.[62] As Nettle and Buchanan JJA point out, the legislative requirement is the true test, and every case differs in terms of determining whether the level of impairment satisfies the statutory test.

Grounds 2, 3 and 4

[62]Haden (2010) 31 VR 1, 4 [8] (Maxwell P); [2010] VSCA 69

As to ground 2, (his Honour’s statement that neck pain certainly ‘does not dominate the plaintiff’s life’), there was no error in law. It appears his Honour may have been referring to the fact that the back pain was of greater significance than the neck pain. If that was so, then he was correct — although, as we have found, that does not mean that the statutory criteria for the serious injury impairment of the neck are not made out. In any event, his Honour does not appear to have set out that statement as a test which needed to be met.
As to ground 3 (his Honour’s statement that the case fell somewhere in the middle of the range of possible impairments and impairment consequences), we also see no error in law. His Honour was merely making the observation that this case did not reach the statutory standard. It is abundantly clear from a perusal of the reasons as a whole that his Honour was, in a conclusionary remark, simply noting that the case had, in his opinion, not satisfied the serious injury threshold.
Both these grounds fail because they endeavour to extract (perhaps trawl is a more appropriate word) a line here and a line there from his Honour’s judgment and wrongly convert them into a statement of principle which infected the judge’s analysis.
In relation to the fourth ground (adequacy of reasons), as we stated earlier, his Honour’s reasons are comprehensive and comprehensible. They explain to the reader (be they layperson, lawyer or this Court) exactly why Mr Kesper’s case failed. There is no mystery. That this Court ultimately disagrees with the conclusion reached by the judge does not mean that the reasons are inadequate, as counsel for Mr Kesper seemed to contend. Indeed, it is the quality of the reasons that enables this Court to determine the basis upon which his Honour reached his decision and whether it should or should not be the subject of appellate intervention. Gillard J once described this ground as ‘sometimes the refuge of the desperate’[63] — in this case, he was undeniably correct.
[63]George v Nisselle [2005] VSC 177, [56].
Grounds 2, 3 and 4 must fail.

Orders of the Court

The orders of the Court will be as follows:
(1)Leave to appeal on proposed ground 1 is granted and the appeal allowed.

(2)Leave to appeal on proposed grounds 2, 3 and 4 is refused.
(3)The orders of Judge Ginnane of the County Court of 24 November 2023 be set aside and, in their place, the following orders be made:
(a)The plaintiff is given leave pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 to bring a common law proceeding for damages against the respondent in respect of injuries sustained by him in the course of his employment at Eastern Health.
(b)The defendant pay the plaintiff’s costs of the proceeding.

KAYE JA:

For the reasons that follow, I agree with Orr JA and J. Forrest AJA that the application for leave to appeal should be granted, and the appeal allowed, on ground 1.
Before turning to ground 1, I agree with their Honours as to their conclusions concerning grounds 2, 3 and 4. In my view, there is no substance in those grounds.
The passages from the judge’s reasons, that are the subject of grounds 2 and 3,[64] did not involve the judge adopting an incorrect test to determine whether the applicant’s injury to his cervical spine constituted a serious injury as defined in s 325 of the Act. At the commencement of his reasons, the judge quoted that test. In reaching his conclusion, that the applicant’s injury did not satisfy that test, the judge correctly noted that the question was whether the applicant had established that, as a result of the impairment to his neck, when compared by comparison with other cases in the range of possible such impairments, might fairly be described as more than significant or marked, and as being at least very considerable.[65]
[64]Reasons, [207], [208].
[65]Reasons, [196].
In respect of ground 4, the judge’s reasons were thorough, methodical and clear. They described, with commendable clarity, the path of reasoning adopted by the judge in determining that the applicant had not satisfied the statutory test.
I turn, then, to ground 1.
As discussed by Orr JA and J. Forrest AJA, following the decision of the High Court in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore,[66] this Court has determined that the critical question, which this Court must determine, is whether the decision by the primary judge was correct.[67]
[66][2023] HCA 32.
[67]Connelly v Transport Accident Commission [2024] VSCA 20, [38]–[40]; Victoria WorkCover Authority v Perumal [2024] VSCA 107, [100].
In that respect, I agree that the application of that test should not be subject to the caveat proposed by senior counsel for the applicant, that ‘due deference’ be given to the role of the County Court in determining the serious injury application. Certainly, in accordance with ordinary principle, it is appropriate to take into account that the judge, who heard the application, had the advantage of viewing, and listening to, any witness who gave evidence in the application. Even in a case in which the credit and reliability of the particular witnesses is not in issue, the position of the judge, in that respect, may constitute an advantage which is not available to the Court of Appeal. However, for the reasons stated by Orr JA and J. Forrest AJA, I do not consider that, additionally, the appeal court should accord ‘deference’ to the decision of the primary judge based on the consideration that it is the County Court which ordinarily determines a serious injury application.
In a case such as the present, in which the applicant does not seek to impugn any of the primary findings of fact by the judge, the applicable test for this Court is that described in the joint judgment of Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes:[68]
Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.[69]
[68](1979) 142 CLR 531, 551.
[69]Ibid 551.
In determining whether the injury to the applicant’s cervical spine was a serious injury, as defined by s 325 of the Act, the starting point is the nature of the injury itself, namely, a large central disc protrusion at C5-6 and degenerative disc at C6-7 levels. The applicant was diagnosed to have cervical disc osteophyte complexes causing neural compression and arm radiculopathy. The surgeon, Mr Timms, considered it ‘entirely plausible’ that the applicant injured his spine when frequently manoeuvring obese, sedated and drowsy patients on operating tables into various positions, and back on and off onto patient trolleys with minimal assistance. Mr Timms considered that that type of repetitive lifting was likely to have been a significant contributing factor to the applicant’s injury. As a consequence, in September 2017, Mr Timms performed an anterior cervical discectomy and fusion at the levels of both C5-6 and C6-7.
In his report, Mr Timms expressed the view that the applicant recovered from the surgery and returned to work, but that he did have some ‘residual mild symptoms and some residual lack of range of movement’. It is the extent and effect of those symptoms that are critical to the determination as to whether the applicant’s cervical spine injury fulfils the criteria of a serious injury.
In that context, the description, given by the applicant of his ongoing difficulties and discomfort, resulting from the injury, is central to a consideration of that question. The applicant was cross-examined, in some detail, on the hearing of the application. The judge, having had the opportunity to observe the applicant in his evidence, described the applicant as being ‘very frank’ in his evidence.[70] His Honour stated:
I am satisfied that the plaintiff gave a largely credible and honest account of his circumstances. He did not shy away from the fact that in many respects his lumbar injury is more egregious in its effects on him in terms of pain, than his cervical injury, and indeed, to the point that he was not working because of the state of his back, but he was adamant that the pain in his neck is itself of sufficient quality and constancy as to separately interfere with his enjoyment of life, and not exclusively by way of pursuits and activities that have been later impacted by his back condition. I accept that the plaintiff’s neck injury continues to visit consequences on the plaintiff, but that fact of itself is not the test for the grant of a serious injury certificate.[71]
[70]Reasons, [24].
[71]Ibid [171].
In those circumstances, it is relevant to set out in full the manner in which the applicant described his pain and disability resulting from his cervical spine injury.
In his first affidavit, the applicant, having described the surgery that he underwent in September 2017, stated:
20.Unfortunately, the surgery wasn’t as successful as I had hoped. While I was able to get back to work, the neck wasn’t the same and has never been since.
21.The neck has continued to creak and crunch. I feel sudden electric shock type twinges of pain. These can be mild, and they can be sharp pain also. It worries me that there is still some sort of nerve interference going on if my neck feels this way.
22.I have since also suffered a lower back injury, which has also now been the subject of surgery. That injury is even more problematic and painful than the neck injury, although that certainly doesn’t mean that I don’t struggle with neck pain and restriction. That injury is not the subject of this affidavit or application.
23.As for the neck, it is a constant and daily problem for me. I am limited in how I can move the head and neck. Moving the head and neck up and down and to the left and right can be painful, particularly at the limits of movement in each direction. It is certainly the case that I am aware every hour of every day that the neck has been partially fused solid.
24.I was warned a long time ago that fusing one level of the cervical spine places more strain on the adjacent levels and that I should expect problems and arthritis at those adjacent levels. It seems to me that this is what is now happening to the neck, as I am feeling pain that seems to spread up and down from the level of the fusion.
In his second affidavit, sworn 22 May 2023, the applicant further outlined his pain and disability in the following terms:
3.Unfortunately, my neck has remained much the same since the 2-level cervical discectomy and fusion surgery in 2017.
4.As I described in my previous affidavit, the neck has continued to creak and crunch and intermittently give me electric shock type twinges or shooting feelings of pain. Moving the up and down and/or to the left and right is still painful at the limits of movement in each direction. This is a particular issue when I am driving a car in traffic and have to look about. Tilting my head back to look upwards is similarly painful and this only gets worse the further I try to move the head.
In light of the nature of the injury, the surgery undertaken by Mr Timms, and the applicant’s ongoing symptoms, it is perhaps somewhat surprising that the applicant was cleared to return to work in his pre-injury duties. As noted, in his report, Mr Timms considered that it was likely that the applicant would have some residual neck pain and some residual lack of range of movement following his return to work. That forecast by Mr Timms has been borne out by the applicant’s experience in the years that have followed the surgery.
In cross-examination, counsel put to the applicant that, following his return to work after the operation, his neck condition never prevented him from working as a theatre technician, except for the post-operative period. The applicant replied to that question, stating:
I continued to work with pain in my neck all the way through.
Subsequently, counsel again returned to that issue, and put to the applicant that he had worked, ‘without any restrictions’ until he sustained his back injury. In response, the applicant stated that he had, during that period, worked with ‘constant pain’.
The judge placed some emphasis on the fact that the applicant did not seek any further medical treatment in respect of his cervical spine following the operation. However, in his affidavit and in his evidence, the applicant described how, following the operation, he had used a heat pack and a cold pack regularly for the pain in his neck, and he had continued to perform exercises prescribed by a physiotherapist on an almost daily basis. He said that he had also performed those exercises when he had time, and during lengthy operations. Following his back injury in 2021, the applicant took painkilling medication for his lower back, which also assisted to alleviate the neck pain.
In other words, while it is relevant that the applicant did not seek any further medical assistance in relation to his ongoing neck pain, nevertheless, he did, himself, undertake regular active steps to alleviate that pain.
It is quite evident that, as a result of his ongoing pain and disability resulting from the injury to the cervical spine, the applicant has been significantly debilitated in his daily life. He has been restricted in undertaking some basic domestic activities, such as mopping or reaching up high to cupboards. The judge did not accept that the applicant’s neck pain disturbed his sleep. However, his Honour did accept that his condition was such that, when he was woken by back pain, he also experienced neck pain. As a result of his injury, and restrictions, the applicant was required to use a hollowed out neck supporting pillow. His neck injury has adversely affected his ability to drive a motor car, and, in particular, he cannot turn his neck without occasioning pain.
In addition, as a result of his injury, the applicant suffered substantial restrictions in a significant number of his recreational activities. The judge accepted that the applicant’s neck injury precluded him from being able to use the compound bow that he purchased to pursue hunting.[72] The applicant had previously enjoyed shooting foxes with his 12 gauge shotgun, and he was precluded from continuing with that activity, due to his neck injury. In that respect, the judge accepted that that was a loss which resonated with the applicant.[73] The judge further accepted that the applicant had derived enjoyment from growing and exhibiting African violets and specimen flowers, and that that pursuit had been compromised by his neck and back injuries.[74] The applicant also gave evidence that, as a result of his injuries, he was no longer able to use a chainsaw, which was significant in the context of the applicant living in a semi-rural environment.
[72]Reasons, [185].
[73]Ibid [191].
[74]Ibid [186], [188].

The judge did not accept that the applicant’s neck injury would preclude him from showing or breeding dogs. His Honour considered that that disability was caused by the applicant’s back injury. However, it is relevant that the applicant had shown dogs until he sustained the injury to his neck. Subsequently, in September 2019, he was dismissed from the ring of the Adelaide Royal Show, because his neck pain precluded him from bending down and straightening the legs of the dog that he was showing, and he could not run around the ring with the dog, due to the pain. Although the applicant’s lower back injury had supervened, and totally precluded him from engaging in breeding and showing dogs, nevertheless, it is relevant that his neck injury, of itself, had, at least to some extent, restricted him from that form of recreation.
In summary, then, the applicant sustained a substantial injury, which required quite significant surgical intervention. Following that operation, the applicant had returned to work, but, in doing so, he had suffered constant pain to the cervical spine. The applicant’s description of the pain and disability suffered by him, as accepted by the judge, included that he suffered a constant and daily problem in relation to his neck. Movements, or tasks requiring more than minimal movement, of the neck became painful, and often impossible. He said that his neck continued to creak and crunch, and intermittently gave him ‘electric shock type twinges’, or shooting feelings of pain. As discussed, as a result of his cervical spine injury, the applicant suffered substantial ongoing restrictions in his daily life and in a range of his recreational activities.
It is the total and combined effect of those consequences that must be considered in determining whether the injury to the applicant’s cervical spine is a serious injury as defined by the Act. As I have discussed, taken together, they have significantly impacted the applicant’s capacity to work and to engage in a range of ordinary daily and recreational activities. Taking those matters into account, it must concluded that those consequences to the applicant, as a result of his neck injury, in combination were and remain more than ‘significant or marked’, and were and are at least ‘very considerable,’ for the purposes of s 325 of the Act.
For those reasons, ground 1 of the application for leave to appeal should be upheld.
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[2024] VSCA 237

15 October 2024