Kindred v VWA
[2025] VCC 1191
•22 August 2025
z
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-07490
| DAVID KINDRED | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 8 August 2025 | |
DATE OF JUDGMENT: | 22 August 2025 | |
CASE MAY BE CITED AS: | Kindred v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1191 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Workplace Injury – course of employment – pain and suffering - whether test for serious injury satisfied – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic); Transport Accident Act 1986 (Vic)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Judgment: Application granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC Mr G Pierorazio | Arnold Thomas & Becker Lawyers |
| For the Defendant | Mr R Stanley SC Ms M Cameron | TG Legal + Technology Pty Ltd |
HIS HONOUR:
Introduction
Relevant Legal Principles – Serious Injury
1The plaintiff brings a claim pursuant to sections 325(1) (a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The Particulars of Injury read:
(a) aggravation, acceleration and/or exacerbation of degenerative changes in the lumbar spine;
(b) musculoligamentous strain;
(c) annular disc injury and prolapse;
(d) discogenic pain;
(e) facet joint pain/arthropathy;
(f) neuro-compression;
(g) paravertebral muscle spasm;
(h) consequential psychological injury.
2No reliance was placed on a psychological injury.
The Issues
3Mr Brett of King’s Counsel who appeared with Mr Pierorazio of counsel opened the Application in these simple terms:
‘Your Honour, this is an application for pain and suffering certificate only in respect of a course of employment injury over many years lifting and packing boxes of frozen meat for Midfield Meats from, I think,2003 until 2020, if I recall correctly’.
4A little later, Mr Brett added this:
‘I can summarise this case very quickly. He worked lifting boxes for many years and he's got a crook back. That affects him in his work. He's been able to find a job where they are very accommodating. It affects him at home. He's a man who's married; he has one son. You will have read that his son is significantly disabled … And it affects him in terms of pain on a regular basis.’
5Mr Stanley of Senior Counsel who with Ms Cameron of counsel appeared for the defendant said the following by way of a brief opening:
‘Your Honour, essentially it will be a range case. There is some difficulty with the doctors ascertaining an appropriate diagnosis and therefore attribution to work, but that won't be a feature of this case.’
6Mr Stanley did not concede an injury to the plaintiff occurred in 2012 as was deposed to by him. Mr Stanley referred to a combination of the passage of time and the absence of a good history of a 2012 incident and to some reporting of something similar having occurred sometime in 2006 as adding to uncertainty. Overall, however, Mr Stanley recognised that it could be open to me to be satisfied that an injury occurred at work in or about 2012 that aggravated the plaintiff’s already apparent symptomatic back that first presented in the course of his employment with Midfield in about 2006 and continued to trouble him up to 2012 and beyond.
7Mr Stanley also adverted to the opinion from one of the medico-legal experts on whom the defendant would come to rely, ‘that as best as he can understand, it would be, in his terminology, a soft tissue strain which occurred in compensable circumstances. No injury to the spinal column, as he says. He continues to say and opine that the work-related contribution of Midfield Meats has now ended and that will feature as part of the submission.’
The Plaintiff
8The plaintiff was born in 1971. He suffers from epilepsy. His epilepsy is managed and controlled by Epilim. He also deposed to a learning difficulty. Dr Joseph Slesenger, a Specialist Occupational Physician, who has provided a medico-legal report in the proceeding, has noted that the plaintiff lives with a learning difficulty but can read and write. The plaintiff is married. Together with his wife they are parents to a son who was born in 2005 and suffers a disability, and to whom they provide care, and receive in and out of home assistance with some of his special needs through the NDIS.
The injury
9The plaintiff says he was injured during the course of his employment performing his duties with Midfield Meats (‘Midfield’). It appears that the plaintiff commenced his employment with Midfield in about 2002/03. In the first of his two affidavits made in support of his Serious Injury Application, the plaintiff described performing heavy work duties with Midfield. He said that heavy boxes of meat regularly fell to the ground from pallets and of him needing to pick them up. By 2006 he was experiencing back pain.
10The plaintiff referred to an incident in about 2012, that he said caused ‘an aggravation of my back pain’. He recalled manoeuvring boxes of meat in a limited and confined space of the factory. A box of meat weighing 25 kg fell on the floor. Because of limited space he started sliding the box of meat across the factory floor with his foot to an area where he had room to pick it up. He said that when he went to pick up the meat he injured his lower back. He said he could not stand up. He said he reported the injury. It seems that he might have attended a physiotherapist, but with this not providing assistance, he saw Mr Tim Free, a Chiropractor at ‘Banyan Street Chiropractic’. He returned to light duties for a short while before he returned to lifting heavy boxes and performing his pre injury employment. No work injury claim was made.
11The plaintiff says he coped with the job demands at Midfield by being able to avoid heavy lifting and with the support of co-workers and, in particular, by continuing to see Mr Free from time to time. He said he took an occasional Panadol.
12The plaintiff said in his oral evidence that chiropractic treatment had been suggested by his employer. He said that for a period of time Midfield covered the expense of his appointments for treatment with Mr Free but it stopped doing so in February 2022. The plaintiff said that since then he has paid for the sessions himself.
13The plaintiff said in his oral evidence that Mr Free had been dismissive of the ability of a medically qualified doctor to do anything better for his back condition than he could provide.
14The plaintiff says that his symptoms have persisted over the last 13 years despite ongoing chiropractic treatment and are worse than they had been prior to 2012.
15The plaintiff said that by May 2022, although still struggling with his work duties at Midfield due to ongoing pain in his back, he resigned his employment but this was because of management related issues.
16The plaintiff said he found work as a ‘stop and go’ worker for an entity called ‘Go Traffic’ for about 6 months. This involved traffic management. He said it was relatively light work compared with Midfield, but ‘from time to time’ he experienced a flare-up of back pain if he bent or lifted up cones and like paraphernalia. He said he left Go Traffic after about 6 months, not because he was unable to manage the work due to his back, but because he was not being offered more than 2-3 days’ work a week.
17In March 2023, the plaintiff commenced employment with ‘Seaway,’ a company involved in the business of distribution of powdered milk. He was employed as a forklift driver/labourer. The plaintiff remains employed with Seaway. He says he is able to work at his own pace. Initially his work with Seaway involved lifting bags of powdered milk weighing 25 kgs each. He explained that he had use of a vacuum lifter which alleviated heavy lifting. Bags of milk powder were placed onto pallets, and pallet lifters would raise them to a comfortable height.
18The plaintiff said he cannot afford to stop work.
Pain and Suffering Consequences
19The plaintiff said he continues to suffer with pain in his low back. The pain radiates up into his middle back. The pain is sometimes accompanied by a headache for which he will take Panadol to the extent of about two every month. He said that during the working week, his back pain is generally worse in the afternoon.
20He resorts to the use of cold packs when his pain is particularly bad but they provide only short term relief. He takes limited over the counter pain medication because he is concerned of any effect it might have on Epilim used to manage his epilepsy.
21He said his son is prone to seizures due to his own disability, and if he is required to pick him up, he needs to be very mindful of his back.
22The plaintiff said that pain affects his ability to obtain a good night's sleep. He can wake in the middle of the night with pain. He has considered taking sleeping tablets but has not done so because of a concern of any adverse effect they could have on his use of Epilim. He said he would also be worried of being late for work in the event that he overslept. He said that some mornings he has to ‘roll out’ of bed and is unable to stand up straight away due to pain and stiffness in his back.
23The plaintiff described that if in the course of an intense flare-up of pain he needs to cough or sneeze, the back pain is exacerbated.
24The plaintiff said there is no garden to speak of at home and no digging or shovelling is called for. In his first affidavit, he deposed that he could manage mowing the lawns and using a whipper snipper, but that he resorts to poisoning weeds as opposed to manually removing them.
25In his second affidavit made on 10 July 2025 the plaintiff said he underwent an X-ray on 14 June 2024. He understood it revealed a Grade 1 retrolisthesis at L2/3 with multi-level vertebral body, facet joint and cervical uncovertebral joint osteophyte formation.
26The plaintiff deposed in his second affidavit, that he is no longer working with lifting powdered milk bags at Seaway, but unloads aluminium ingots, which come in from the Portland smelter, and are moved from trucks and into containers using a forklift. He said that there is no manual component to this part of his job but sometimes he is required to close the doors on containers and from time to time he requires the assistance of a co-worker to do so. Any bumpy surfaces when driving in the forklift can aggravate his back pain.
27The plaintiff says ongoing pain in his low and mid back is accompanied by stiffness.
28The intensity of pain the plaintiff can experience fluctuates depending on his activity.
29In his second affidavit, the plaintiff deposed that mowing the lawn or the use of the whipper snipper is now problematic and that he only does so when required.
30The plaintiff deposed that putting on his boots and the tying up the laces can be troublesome because of his difficulty in bending.
31The plaintiff said he can manage to drive locally, but for longer distances, he generally will share the driving with his wife.
32The plaintiff said that around the home most of the housework is distributed between his wife and helpers supplied through the NDIS for his son and who clean the bathroom and toilet.
33The plaintiff deposed that if his pain is particularly bad he will take a day off work. In his oral evidence, he said he doubted this would account for more than 5 days per year.
34The plaintiff deposed that he finds the adjustment performed to his spine by his chiropractor assists his ability to work, but if he does not obtain ongoing treatment, his back can be ‘quite painful’. The plaintiff said if he cannot obtain an appointment, he uses cold and heat packs which ‘help a bit as do hot showers but not to the same extent as chiropractic treatment’. He said he had tried creams such as Voltaren Gel but without much benefit.
35The plaintiff deposed that if he is required to get up and down frequently, his back pain is aggravated. Bending too far down is a particular problem, such as for example, if there is a need to pick up a hammer from the ground at work. At work, he generally tries to have a break about every 20 minutes, and to stretch off any back pain that has developed, after which he resumes his duties.
36The plaintiff said that at the end of a working day he tries to relax his back at home by sitting on a recliner and putting his feet up.
37Because of pain and restriction, the plaintiff said he generally prefers to stay at home and not go out. He might have lunch out once in a while, but rarely steps out for dinner.
38The plaintiff said that over the last 12 months he has not travelled much. He said he and his wife have been to Melbourne to see doctors and she mostly drove. They spent 2 days in Ballarat as his wife was keen on visiting Sovereign Hill but because of the inclines and hills, he sat down most of the time whilst his wife went off exploring. He found it too hard on his back and the following week he needed to attend on his chiropractor.
39The plaintiff said that his wife does most of the shopping and the heavy lifting, although he will help unpack and put items away which are manageable for him.
Affidavit of Nicole Kindred
40Nicole Kindred made an affidavit in support of her husband’s application. It provided insight into how the plaintiff’s condition exhibits itself from her non-medical, but everyday standpoint, and included her observations of her husband and his limitations since injury. The matters deposed to by Mrs Kindred were particularly emphasised by Mr Brett in the course of his final submissions, and it is convenient that I address them at that point in these reasons.
Plaintiff’s Medical Material
Dr Slesenger
41Dr Slesenger provided an expert report dated 24 July 2024 following examination and assessment of the plaintiff on 15 July 2024.
42Dr Slesenger said that the plaintiff reported that he has residual lower back pain, centred in the lower back, which is ‘moderate, occasionally severe, with radiating pain into the mid-back and upper back and pain radiating into both lower limbs’.
43Dr Slesenger reported that the plaintiff can dress, wash, shower and toilet himself. He and his wife share domestic duties. He avoids heavy lifting (i.e. lifting greater than 10 kg), and avoids repetitive bending and twisting, particularly bending to lower levels when undertaking domestic tasks. He wakes at around 6.30 am and retires around 9.00 pm.
44Dr Slesenger said that the plaintiff had not been engaged in any recreational pursuits at the time of the 2012 injury.
45Dr Slesenger said that the plaintiff was a difficult historian, and there was some trouble establishing the timing and the dates of the injury, the length of his employment and the chronology of his treatment. Dr Slesenger said that, nonetheless, he was satisfied that the plaintiff suffered a thoracolumbar spinal, soft tissue injury, that presented with chronic axial spinal pain with radiating features.
46Dr Slesenger recorded that his physical examination of the plaintiff produced the following findings: ‘Palpation: there was tenderness over the lower lumbar spine and the paraspinal musculature’. Measured range of movements were: ‘Flexion: 40 degrees. Extension: 20 degrees. Right rotation: 30 degrees. Left rotation: 30 degrees. Right lateral tilting: 20 degrees. Left lateral tilting: 20 degrees. Straight leg raise testing produced the following results: Right (supine): 40 degrees. Left (supine): 40 degrees. Seated: 90 degrees bilaterally’.
47Having been asked to address causation, Dr Slesenger offered the opinion that: ‘His symptoms developed when he bent to pick up a box of meat weighing 25 kg from floor level and in doing so, sustained an injury to his mid and lower back’.
48Dr Slesenger observed that the plaintiff’s treatment has almost exclusively been confined to chiropractic care, and that he continues to see his chiropractor regularly and with the need for attendances variable, although Dr Slesenger noted, that the plaintiff had attended three times in the month leading up to seeing him.
49Dr Slesenger recommended that certain restrictions should be adhered to that included, ‘No push, pull, carry or lift over 15 kg. No fast or repetitive bending and twisting. Avoid exposure to whole body vibration and with the recommended restrictions to be adhered to for the foreseeable future’. Dr Slesenger said he was satisfied that the injury had limited the plaintiff’s vocational options.
Dr Ash Jones
50Dr Ash Jones is a Chiropractor. He provided a report to the plaintiff’s solicitors dated 9 July 2025.
51Dr Jones said that he had based his report on the plaintiff’s client information paperwork, subsequent clinical treatment notes of the plaintiff, examination and imaging collected and prepared by Dr Jay Smyth and subsequent chiropractors who had attended the plaintiff, including Dr Sarah Pelletier, Dr Michael Szabo and Dr Caitlan Reynolds. He said that the plaintiff’s chiropractic care continues to date.
52Dr Jones proposed that the plaintiff suffers multi-level disc degeneration in the thoracic and lumbar spine with associated loss of cervical lordosis, that results in mechanical back pain.
53Dr Jones said that the plaintiff first consulted ‘Evolution Chiropractic’ under Dr Jay Smyth on 12 June 2024, with a primary concern of back, neck and shoulder pain. He had described his pain as sharp with some referral to the arms. The plaintiff said his pain was ‘moderate, and not limiting his work or usual activities’. He had told Dr Smyth that he had seen chiropractors over 5 years prior and had been pleased with their service provided. The plaintiff told Dr Smyth that he had the ability to continue with the usual activities of employment.
54Dr Jones said that the relationship between the plaintiff’s employment at Midfield and diagnosis had not been documented in previous examination findings.
55The plaintiff had opted for as-needed chiropractic treatment and care as warranted by his symptoms. Between his initial consultation with Dr Smyth on 12 June 2024, and June 30, 2025, the plaintiff had seen a chiropractor at Evolution Chiropractic 19 times, resulting in 18 visits where treatment was provided. On average, the plaintiff had made an appointment every 3 to 4 weeks. His previous chiropractor had recommended monthly care prior to him consulting with Dr Smyth. Dr Jones said that the plaintiff makes his appointments with Evolution Chiropractic on an as-needed basis.
56Dr Jones reported that as far as the plaintiff’s medical needs beyond his musculoskeletal complaints are concerned, any such comorbidities fall outside the scope of practice for chiropractors.
57Dr Jones said the plaintiff has responded well to chiropractic care and has not reported any abnormal change in symptoms warranting a specialist referral from a neuromusculoskeletal perspective. Dr Jones said that should co-management or a different approach or enquiry be required for the plaintiff, that in accordance with usual practice, a patient will be referred to their GP.
58Dr Jones said that as a result of his treatment, the plaintiff experiences symptomatic relief of symptoms, improved range of motion and less muscle soreness.
59Dr Jones wrote that the plaintiff reports general stiffness, local muscle tightness and some tenderness. He said it is the previously described symptoms that are commonly the basis for the plaintiff obtaining treatment.
60Dr Jones reported that the plaintiff has maintained physical strength and function due to his regular chiropractic care and that the same assists him with the quite manual and repetitive motion associated with his employment.
Dr Anna Manolopoulos
61Dr Manolopoulos is a Consultant Orthopaedic Surgeon who provided a report to the plaintiff’s solicitors dated 19 June 2025.
62Dr Manolopoulos recorded the plaintiff’s account provided in response to a number of areas of inquiry she made of him such as follows:
Personal Hygiene
Mr Kindred reported minimal difficulty performing self-care and personal hygiene, including showering, dressing and toileting. Mr Kindred noted he now requires additional time to complete personal hygiene tasks.
Household Chores and Shopping
Mr Kindred noted minimal difficulty managing shopping duties and household chores, including cooking, dishwashing, bed-making, vacuuming, mopping and laundry. Assistance is required from his family on occasion when undertaking the aforementioned household tasks.
Communication
Mr Kindred reported no issues using a computer or smartphone device.
Gardening
Prior to the injury, Mr Kindred regularly performed various gardening activities including lawn mowing, using a whipper snipper, pruning bushes and trees, and general yard maintenance. Since the injury, Mr Kindred reports minimal difficulty when attempting these tasks.
Driving
Mr Kindred reported no issues with driving. He is periodically reviewed by his neurologist to be cleared for driving due to his epilepsy.
Sleep
Mr Kindred reported minimal sleep disturbances due to his pain. Mr Kindred reported that he can wake up two to three times per night.
Social and Recreational Activities
Mr Kindred reported minimal difficulty in his social and recreational activities. He does (sic) report any specific hobbies.
63Dr Manolopoulos described the plaintiff’s account of his functional assessment in these terms:
FUNCTIONAL ASSESSMENT
Mr Kindred reported the following functional restrictions at the time of the assessment.
Spine and Lower Limb
Mr Kindred stated a standing tolerance of less than 30 minutes, a sitting tolerance of less than 30 minutes, and a walking tolerance of less than 30 minutes.
Additionally, Mr Kindred reported moderate difficulty with bending and twisting, and stated that he is unable to lift heavy objects. Mr Kindred also reported minimal difficulty ascending and descending steps, as well as walking on uneven surfaces.
64On physical examination, Dr Manolopoulos reported as follows:
PHYSICAL EXAMINATION
Mr Kindred was a clear and straightforward historian, and he was cooperative with the physical examination. No abnormal illness behaviour was observed, characterised by either an excessive or inadequate response to symptoms. Ranges of motion below were obtained with a goniometer on screen during the evaluation.
Cervicothoracic Spine (Cervical Spine)
On active range of motion of the cervical spine, Mr Kindred reported pain. There was evidence of cervicothoracic paravertebral tenderness and muscle spasm.
The range of motion in degrees (°) was as follows –
Cervical Spine
Measured Angle (°)
Normal Motion (°)
Flexion
30
50
Extension
20
60
Right Lateral Flexion
30
45
Left Lateral Flexion
30
45
Right Rotation
30
80
Left Rotation
30
80
Lumbosacral Spine (Lumbar Spine)
On active range of motion of the lumbar spine, Mr Kindred reported pain. There was evidence of lumbosacral paravertebral tenderness and muscle spasm.
The range of motion in degrees (°) was as follows –
Lumbar Spine
Measured Angle (°)
Normal Motion (°)
Flexion
60
60
Extension
10
25
Right Lateral Flexion
20
25
Left Lateral Flexion
20
25
65Addressing the single radiology dated 12 June 2024 Dr Manolopoulos wrote:
"There are no significant focal bony pelvic or proximal femoral abnormalities demonstrated".
66Dr Manolopoulos said that in her opinion, the plaintiff had sustained soft tissue injuries to his neck and back, with a likely exacerbation of degeneration in both.
67Dr Manolopoulos said that she regarded the plaintiff’s work circumstances as the likely cause of his symptoms.
Defendant’s Medical Material
Dr Philip Sheard
68Dr Sheard is an Orthopaedic Surgeon. He provided a report to the defendant’s solicitors dated 10 May 2024.
69Dr Sheard reported that the plaintiff described suffering back pain which ‘comes and goes across his low back on average once a week, and that is worse in the afternoon, and can radiate upwards and downwards but with no radiation down his legs’. Dr Sheard said that the plaintiff has occasional ‘flares’, but had not experienced one for more than six months, and he had not seen his chiropractor for two months.
70Dr Sheard diagnosed the plaintiff with a “mechanical lower back pain” that has stabilised. He observed that the plaintiff remained working full-time, in an unrestricted manner. Moreover, he thought the plaintiff could return to his pre-injury employment because he had proved able to do so until May 2022 when he ceased work with Midfield due to factors unrelated to his back condition.
71Dr Sheard wrote that the plaintiff ‘has minimal back pain at the present time. He requires only occasional chiropractic treatment, which resolves the issue and occasional Panadol. He does not require any further interventions’.
72Dr Sheard wrote that there are no preclusions or restrictions in the plaintiff’s social, domestic and recreational activities; that he experiences only minor back pain, and has had no time off from his present employment.
Dr Peter Wilde
73Dr Peter Wilde, Orthopaedic Surgeon, provided a report to the defendant’s solicitors dated 3 July 2024. Addressing a diagnosis of injury, Dr Wilde said that the plaintiff has ‘aggravated lumbar spondylosis without radiculopathy in 2006. He subsequently described further aggravations through the course of normal heavy work as their labourer in a meat works’.
74On the mechanism of injury, Dr Wilde said that the plaintiff was unable to recall the exact date but ‘…. he remembers that sometime in 2006, he dragged a 30-kilogram box of frozen meat on the floor to place it on a conveyor. He felt a crunch in his back, stopped and rested for a period of time, and then reported the incident’. I note that this relating of incident by Dr Wilde from 2006 is similar the incident that is recounted and referred to as occurring in 2012 but this was not amplified on in the course of the hearing.
75Dr Wilde recorded that as of July 2024, the plaintiff’s treatment regime comprised ‘visits to a chiropractor weekly for flare-ups of pain, which occur a few times per year. He consults a GP as necessary for painkillers and medication’. He went on to add that ‘Current treatment consists of occasional attendances to a chiropractor when the pain flares. He says this treatment helps him significantly. As to the future, there are no planned injections, surgeries, or other invasive treatments’.
76Dr Wilde reported that the plaintiff experiences constant low-grade back pain, typically ranging from ‘3 to 4 on good days and occasionally reaching 7 or 8 out of 10 on bad days’. Some days, he has minimal pain, especially if he lifts and bends cautiously. The pain occasionally radiates into the buttocks but never into the legs. If the pain becomes bothersome, he will take a day off work, but never more than five days per year. He occasionally experiences numbness in the right leg, although he cannot recall the last episode. He can walk three kilometres and sit for two hours. Pain wakes him up once or twice at night. He can drive uninterrupted for two to three hours.
77Dr Wilde recorded that the plaintiff is able to dress himself, shower, get in and out of chairs, and cook his own meals. However, he is unable to perform household chores, although he can go to the supermarket, purchase groceries, and carry them home. He can do gardening and mow the lawn. He is able to socialize with friends and family. He does not have any specific hobbies but enjoys watching television in his free time especially AFL football.
78Dr Wilde reported that in his opinion, the plaintiff had aggravated lumbar spondylosis without radiculopathy in 2006 and presented with chronic back pain since injuring his back in 2006 while working as a manual labourer with the employer and although the initial injury occurred in 2006, he experienced further aggravations due to the nature of heavy work at Midfield.
79Dr Wilde said that he did not understand the plaintiff to have had pre-existing conditions or injuries. There were no non-work-related conditions or injuries. There were no subsequent injuries to the plaintiff’s low back after he resigned from Midfield.
80Addressing the plaintiff’s likely prognosis, Dr Wilde said that ‘Now that he is in a lighter job, his back gives him less trouble and I don't think his current employment is contributing in any way to the persistent fluctuating low grade back pain which he reports’.
81Dr Wilde said that the plaintiff would not be suitable for a return to his pre injury work as a labourer in a meat works. He said that the plaintiff’s work as a warehouse and forklift driver at Seaway was an appropriate light duty job on a full-time basis.
Dr Rene Dupuche
82Dr Dupuche is a Consultant Physician in General Medicine. He examined the plaintiff on behalf of the defendant and provided a report to the defendant’s solicitors dated 16 February 2023. He diagnosed the plaintiff with a series of derangements to the lumbar spine by way of ‘muscular ligamentous strain, annular disc injury and probable prolapse, discogenic pain, facet joint pain/arthropathy, intermittent neurocompression and paravertebral muscle spasm’.
83Dr Dupuche recorded the plaintiff complaining of pain in his low back. Occasionally the pain seems to extend upwards to a higher level. His hands can occasionally go numb which Dr Dupuche said might suggest carpal tunnel syndrome or other similar condition.
84The plaintiff said that his pain can radiate into the legs and below the knee but only occasionally.
85The plaintiff said that ‘Sometimes he is in such pain that he has difficulty in getting out of bed so must roll over and then cannot stand straight’.
86Addressing causation, Dr Dupuche said that ‘I believe the cause of the workers medical condition is high level, highly repetitious biomechanical strain applied to the back over a very prolonged period of time’. He said he had assessed the plaintiff with a new injury but occurring over a protracted period of time and that the plaintiff had no back issues prior to employment with Midfield.
87Dr Dupuche commented that ‘The expected duration is uncertain however I believe he must always be protective of his spine. To fail to do so is to invite further injury potentially more problematic’.
Dr Armin Drnda
88Dr Drnda is a neurosurgeon who conducted an examination of the plaintiff at the defendant’s request and furnished two reports dated 29 May 2025 and 14 July 2025.
89Dr Drnda thought it was likely that the plaintiff experienced repetitive strain in the soft tissues of his back due to the nature of his employment, and which required him to visit a chiropractor frequently. He referred to the history of the plaintiff’s chiropractic attendances prior to, and after 2012, and extracted the following chronology:
Mr Kindred said he initially (in early 2006) attended a physiotherapist and then a chiropractor. Chiropractor clinical notes revealed that Mr Kindred attended Bunyan Street Chiropractic Centre in December 2006 (x2), January 2007 (x4), March 2007, April 2007, November 2007, December 2009, March 2010, October 2010, November 2010, December 2011, November 2012 (×2), December 2012 (×2), June 2013, January 2014, April 2014, July 2014, August 2014, November 2014, January 2015, August 2015, January 2016, February 2016 (×3), March 2017 (x2), December 2017, June 2018, July 2018, November 2018 (x4), December 2018, May 2019 (x4), June 2019, August 2019, January 2020, August 2020, October 2020, November 2020, September 2021, April 2022, May 2022, August 2022, January 2023 (×3) and February 2023. It was challenging to decipher the exact reasons for each visit, but it is almost certain they were related to the treatment of various regions of his spine.
90Dr Drnda said that considering the plaintiff’s symptoms over time and the chiropractor's records, he thought it is highly improbable that the plaintiff sustained any injury to his spinal column, and in particular, to the lumbar spine.
91Dr Drnda recorded that the plaintiff experienced pain levels that were ‘generally low, and that his main issues were related to muscle stiffness rather than nerve pain’. Dr Drnda found no indication of radicular pain.
92Dr Drnda said that the plaintiff’s lack of visits to his GP to obtain imaging studies supported his opinion of the absence of injury to the lumbar spine but that given the plaintiff’s age, it is possible that he has some underlying non-symptomatic lumbar spondylosis.
93Dr Drnda said that he considered the plaintiff’s prognosis in the short term was good, given that he is highly motivated to work and is working full time. He added that in the long term, given the ageing process and progressive nature of degenerative disease, he may experience more symptoms. However, Dr Drnda posited that this would be related to the natural history of the disease, rather than injury.
94Dr Drnda considered that the plaintiff’s work with Midfield caused recurrent soft tissue strain over various spinal areas but without injury to the spinal column.
95Dr Drnda ultimately concluded that any work-related contribution at Midfield has ceased, and that the plaintiff’s presentation is now influenced by constitutional factors and ongoing stress while employed elsewhere.
96In his second report dated 14 July 2025, Dr Drnda said that he had been requested to review the X-rays of the spine, pelvis, and both hips, dated 12 June 2024, along with the report from Dr Ash Jones, chiropractor, dated 9 July 2025.
97Dr Drnda wrote that Dr Jones confirmed that the treatment was for a soft tissue symptomatic strain, occurring in the context of degenerative disc disease throughout the spine. The degenerative disc disease was also noted in the X-ray report. Dr Drnda thought that the changes described on x-ray to be part of the natural progression of this condition.
Cross-Examination of the Plaintiff
98The plaintiff confirmed that he is employed by Seaway as forklift driver.
99He said that following the birth of his son in 2005, and in the years up to 2012, that he was a ‘hands on man’ and he was able to interact with his lad and undertake activities one might anticipate such as throwing and picking up a ball, and he was able to do so, despite the various occasions of pain that he had experienced since about 2006.
100He agreed that he had obtained treatment for his back by way of chiropractic treatment fairly regularly at Banyan Street Chiropractic from Mr Free from 2006 to 2023.
101He said he commenced employment with Seaway in March 2023. He said he works full time 40 hours a week. He works in a factory environment. Initially, his duty was distributing powdered milk by way of a forklift and manually moving product. He said his remuneration with Seaway is overall more advantageous than at Midfield.
102The plaintiff did not challenge that his epilepsy was diagnosed in 2013 after he suffered a seizure when he was driving a motor vehicle. He also agreed that he had experienced a single and earlier but undiagnosed seizure in 2004. The plaintiff said following the 2013 epilepsy episode and formal diagnosis, he was unable to work for 7 months. He said he required a medical clearance before being able to return to work.
103The plaintiff also had a health scare that necessitated hospitalisation for a colonoscopy. He said he attended his GP because of symptoms he experienced.
104Mr Stanley suggested to the plaintiff that his record of visits to a doctor amounted to approximately 22 attendances over the last 13 years. The plaintiff said he only attends on a doctor when needed and that he does not like going to doctors.
105When Mr Stanley suggested to the plaintiff that the record of the attendances fail to disclose any visit for a reason associated with his back, the plaintiff agreed. He also agreed that his GP is unaware of his back pain because he has not mentioned it to him.
106Mr Stanley suggested to the plaintiff that the reason the state of his back is not recorded by doctors is because it is well managed. The plaintiff agreed with Mr Stanley that his back is well managed by chiropractic care.
107To Mr Stanley’s suggestion that his pain does not interfere with his life to any ‘great degree’ the plaintiff agreed, save for when he said he experiences a ‘big flare up. That’s when it hurts like hell’. He agreed that when he suffers a flare-up of pain, rather than attend his GP, he reverts to his chiropractor.
108Mr Stanley asked the plaintiff about the period of time that elapsed from when he ceased to attend on Mr Free in February 2023 and recommenced chiropractic treatment at Evolution Chiropractic in June 2024. Mr Stanley asked the plaintiff this:
When you swore your first affidavit, you spoke about stopping seeing Mr Free and you told us that you were looking to return to another chiropractor at that time when you swore that affidavit?---Yes.
Did you attend on Evolution because you thought, 'Look, I better start going back to a chiropractor because it may help at least identify the severity of my injury to the court'?---Yes.
109The plaintiff said that during the period of time he did not receive chiropractic care, he continued to work full time.
110The plaintiff agreed with the assessment of Dr Jones that he has responded well to chiropractic care.
111Mr Stanley put to the plaintiff some parts of the report prepared by Dr Manolopoulos. Mr Stanley asked the plaintiff if he agreed with her account of his stated capacities. He agreed that he can shower, dress and toilet himself.
112The plaintiff said he could not recall if he told Dr Manolopoulos that he only encountered ‘minor difficulty’ when attempting gardening activities.
113Mr Stanley asked the plaintiff about his sleep. Mr Stanley recited to him the description Dr Drnda provided that the plaintiff is a ‘light sleeper and frequently wakes up from a fear of falling out of bed’. The plaintiff agreed with the account and he also agreed with the comment Dr Drnda attributed to him that when he is in bed he is not in pain.
Defendant’s Final Address
114Mr Stanley commenced by reference to the plaintiff’s onus of proof in establishing on the balance of probabilities that he suffered an injury at work, that the injury is causative of permanent impairment and that the injury and the permanent impairment derives consequences which are satisfactory to meet the test in that they are more than considerable. Although Mr Stanley accepted that it might be open on the evidence to find that the plaintiff suffered an incident of injury in 2012, he submitted that it is far less probable that such injury is causative of ongoing current permanent impairment, and even if it is, that the consequences that are said to persist are productive of consequences that are more than significant or marked and are at least very considerable.
115Mr Stanley pointed out that the single radiology comprised an X-ray obtained some 12 years after the assumed 2012 injury and is reflective of a degenerative condition.
116Mr Stanley referred to the absence of any attendance or treatment by a doctor for the back condition, or of any knowledge by any doctor on whom the plaintiff has attended for other health matters of injury to the back, or of pain and discomfort.
117Mr Stanley referred to the absence of a report by Mr Free, the first in time chiropractor, on whom the plaintiff had attended for many years.
118Mr Stanley referred to the report by Dr Jones that the plaintiff’s back pain is well managed.
119For all these reasons, Mr Stanley urged me to prefer the conclusion arrived at by Dr Drnda that the plaintiff’s work caused a soft tissue strain but that the work attribution to the plaintiff’s present situation has ceased and that the plaintiff is suffering a continuum of some constitutional degenerative issue.
120Mr Stanley submitted that if contrary to the defendant’s submissions, I was satisfied a work contribution persisted, then the consequences the plaintiff describe do not satisfy the twin test for seriousness.
121Mr Stanley noted that the plaintiff had identified first suffering work related back pain in 2006. He obtained chiropractic treatment and continued to work. Following the work incident in 2012, the plaintiff also obtained chiropractic care and worked on until 2022 in his ordinary full time work with Midfield, save for the short period of time the plaintiff described as consisting of light duties.
122Mr Stanley submitted that considerable assistance is to be gleaned from Dr Jones in whose report it is recorded that the plaintiff had been and continued to be well managed, and that nothing had occurred that had warranted him referring the plaintiff on for medical care for his back.
123Mr Stanley submitted that the plaintiff manages full time work with Seaway, and even if the current work is of a lighter nature than undertaken at Midfield, I could accept at least, that there remains some physicality in the work the plaintiff performs and which he manages to navigate despite occasional flare ups of back pain but that are accompanied by only minimal work absenteeism.
124Whilst Mr Stanley acknowledged that he had not challenged the plaintiff on the veracity or his account of the pain and suffering consequences, and that the various matters related by Mrs Kindred in her affidavit stood unchallenged, nonetheless, he submitted that I should prefer the account given, for example, in the report from Dr Manolopoulos, which in relation to the same, the plaintiff adopted as correct when cross-examined.
125As to household chores for example, Mr Stanley noted that the account attributed to the plaintiff by Dr Manolopoulos, is consistent with other medical reporting, and that Mrs Kindred deposed that the plaintiff still participates in many activities such as sweeping, hanging up/cleaning washing, making beds and drying dishes. Mr Stanley referred to the report by Dr Sheard that the plaintiff told him there was no effects on his activities of daily living or hobbies and no preclusion on social, domestic or recreational activities.
126Mr Stanley submitted that in relation to the plaintiff’s sleep disturbance, it would be as equally open to find that it is due to him being woken of a night not because of back pain but because of a sub conscious fear of falling out of bed which Dr Drnda recorded.
127Mr Stanley emphasised that on physical examination by doctors as part of the obtaining of medico-legal reporting, there is very limited restrictions on the plaintiff’s range of movement.
Plaintiff’s Final Address
128Mr Brett commenced his submissions by contending that the task in this application is ‘to assess this plaintiff, this injury, these consequences’.
129Mr Brett submitted that I could sensibly assess the character of the plaintiff as that of a man who understates his symptoms rather than overstates them.
130Mr Brett submitted that there is an amplitude of evidence to identify an organic work injury that the plaintiff sustained in his employment with Midfield. He referred to the diagnosis by Dr Slesenger of a spinal soft tissue injury presenting with chronic axial spinal pain with radiating features. Dr Manolopoulos diagnosed soft tissue injuries to the neck and back with likely exacerbation of degeneration in both. Mr Brett recognised that Dr Dupuche had offered diagnoses far greater than others including, a disc annulus injury and prolapse probable discogenic pain, facet joint pain, intermittent neurocompression, and paravertebral muscle spasm. Mr Brett accepted that these diagnoses were difficult to press based on the suite of other opinions.
131Mr Brett referred to the opinion of Dr Sheard who diagnosed mechanical lower back pain, and of Dr Wilde who diagnosed that the plaintiff ‘aggravated lumbar spondylosis without radiculopathy in 2006. He subsequently described further aggravations through the course of normal heavy work as a labourer in a meatworks'.
132Mr Brett contended that Dr Drnda is the only author who has propounded that a work relatedness contribution by Midfield has resolved. He submitted that I should not prefer and adopt his opinion, but instead be satisfied that the symptoms from the work injury prevail to the present day.
133In addressing pain and suffering consequences, Mr Brett commenced his submission by urging on me the importance to be gleaned from the affidavit by Mrs Kindred. He emphasised the extent to which she identified how the plaintiff’s ongoing impairment consequences of pain and restriction has impacted his capacities.
134Mr Brett submitted that Mrs Kindred expressed doubt that the plaintiff would be able to engage in the type of assistance he had proved capable of in the past with renovation and maintenance and associated works at their home due the exacerbation of pain she observes. The Kindred’s are now out of pocket because of the plaintiff’s difficulty in climbing ladders and are required to outsource tasks such as cleaning gutters. Mr Brett noted that Mrs Kindred deposed that they have been required to pay for the construction of a concrete crossover from their shed to the road whereas, in undertaking similar work at their previous home, the plaintiff had been able to perform preparation work associated with the cross-over including digging work.
135Mr Brett emphasised that Mrs Kindred corroborated that the plaintiff is restricted in gardening. Despite the purchase of a lighter lawn mower, this remains a difficult exercise for the plaintiff because of the need to pull the starter cable. She also deposed that changing bed sheets and remaking the bed is difficult for her husband because of the need for him to bend.
136Mrs Kindred deposed that her husband needs to break up tasks, so as to prevent his back becoming painful, but nonetheless often needs to rest his back after housework.
137Mr Brett noted that Mrs Kindred characterised the plaintiff as resilient but reserved, and who keeps his complaints to himself.
Findings and Analysis
138I am satisfied that the plaintiff suffered back pain that commenced in about 2006 in the course of his employment at Midfield.
139The plaintiff received regular chiropractic care for his back condition from 2006 to 2012.
140I accept that it is more probable than not that the plaintiff suffered a particular insult to his back in 2012 while at work at Midfield when meat fell to the ground and he bent to retrieve it.
141I accept that the 2012 incident caused a worsening of his already affected back.
142The plaintiff continued to receive regular chiropractic care after 2012.
143The plaintiff worked on with Midfield until about May 2022.
144The plaintiff has taken very occasional over the counter pain relief for his back but separately has done so for headaches.
145The plaintiff has recourse to the use of heat and cold packs and of hot showers when needed as an adjunct to managing his back pain.
146The plaintiff’s resignation of employment from Midfield was not due to his back.
147The plaintiff’s son was born in 2005.
148Despite evidence of occurrences of back pain from 2006 to 2012, and the attendance for chiropractic care during those years, I accept that the evidence on balance, supports a finding that the plaintiff remained relatively active, and the characterisation of him as a ‘hands on man’ is a reasonable one. He was for example, able to participate in some simple activities one might anticipate of a father and son. Although neither the plaintiff nor his wife in their affidavit material or the plaintiff in his oral evidence provided much by way of dates or of the type of activities and physical capabilities he had been able to undertake before 2012, the implication from the evidence, and especially from Mrs Kindred, is that he was not inhibited prior to 2012 to the extent he has now found himself in, despite experiencing back pain since about 2006. This is reflected in Mrs Kindred’s account of the physical work associated with their former home by comparison to the current time.
149I am satisfied the most appropriate identification of the plaintiff’s injury to his back is of a soft tissue injury with chronic axial spinal pain with radiating features. The incident referred to from 2012 appears to have aggravated or exacerbated the pre-existing level of back pain that had been manifest and had warranted treatment by the plaintiff since about 2006.
150I am satisfied the degradation in the plaintiff’s back since 2012 and to the present date has led to restricted physical functioning and ability for the plaintiff to engage in domestic tasks he had been more considerably able to engage in before 2012.
151Although the defendant submitted that any work related aggravation (that being the term used) to the plaintiff’s back has completely resolved, I am satisfied the work injury continues to prevail. I do not prefer Dr Drnda’s opinion that the injury has resolved. Although Mr Brett submitted that only Dr Drnda posited the work relatedness had resolved, so did Dr Sheard. However, I am not inclined to prefer their opinions because I am not satisfied when a work related aggravation ended and the pressed for naturally occurring degeneration as the better explanation supplanted it.
152Despite the fact that the plaintiff has persisted in full time work, I accept that the duties he now undertakes are not as demanding as at Midfield. I accept, as Mrs Kindred deposed, that the plaintiff is the principal earner in the family. His decision to resign from the traffic management employment was because of the limited number of working hours he was receiving and his commitment to make financial provision for his family. He did not resign that employment because he could not perform the work because of the condition of his back.
153There is a considerable period of time that the plaintiff is not recorded attending for chiropractic care. Overall, I am not satisfied that this should be interpreted as a period demonstrable of a resolution of a work relatedness injury, but instead it is better understood as reflective of the nature of the plaintiff’s soft tissue being accompanied by periods of time when back pain or back discomfort was not of a degree that caused the recourse for care he now requires.
154Addressing the period of approximately 14 months during which the plaintiff did not obtain chiropractic treatment, it appears that for approximately 7 months of it, he was off work at Seaway as a result of his epileptic seizure. It is unclear whether at this stage the plaintiff had ceased lifting 25kg bags of powdered milk and had commenced the lighter forklift work with Seaway. Nonetheless, it seems that the plaintiff’s back was not engaged with any physical activity during that 7 month period.
155I note that the plaintiff said he has always paid for his own chiropractic treatment (although Midfield did pay for a period of time), and so whether or not the fact of the plaintiff not working for about half of the period of 14 months that he did not attend a chiropractor was an inhibiting reason, as was adverted to by Mr Brett in his submissions, is impossible to say, and it was not a reason relied on by the plaintiff. Whatever be the case, if the plaintiff thought his back needed attention because of pain during any part of that 14 month period, but in particular in the balance of the 7 month that encompassed his return to work, it was not explained in the evidence.
156Despite the implication in the defendant’s cross-examination of the plaintiff, I do not think that he re-engaged with chiropractic treatment at Evolution in the middle of 2024 for ‘litigation purposes’. Although the plaintiff agreed to a question put to him by Mr Stanley to that effect, I would be loath to accept that he appreciated the sting in the tail of the question. I prefer to conclude he did not understand the purport of the question. The plaintiff’s previously mentioned learning difficulty, together with the favourable assessment I formed of him, as a simple man, I think better explains his affirmative response to Mr Stanley.
157I am satisfied that the plaintiff was an honest witness. I am satisfied that he is a hardworking man. He appears to be a dedicated husband and caring parent to his severely disabled son. He gave his evidence in an understated manner. I agree with Mr Brett’s characterisation of the plaintiff as a man who understates and does not amplify his condition. I have endeavoured to analyse his evidence and his circumstances as favourably as justice permits.
158In determining the plaintiff’s application, he must establish that he has suffered an impairment from an injury which has significant ongoing impacts on his life and he must show that he has suffered a serious long-term impairment of a body function, in the sense that the consequences of that impairment are ‘very considerable’. This exercise requires a subjective assessment of the consequences of the impairment to the plaintiff, which may then be compared (objectively) to the range of possible like impairments.
159In final address, Mr Stanley referred to Petkovski v Galletti (“Petkovski”),[1] on the basis of the plaintiff’s injury being assessed as an aggravation type injury. There a submission had been made by the respondent to an application for leave to commence a common law proceeding under s 93(4)(d) of the Transport Accident Act 1986 (Vic), in a case involving a pre-existing degenerative condition in an applicant’s spine, that a comparison had to be made of the condition of the applicant immediately before the accident with his condition thereafter, and an assessment made of the extent of the additional impairment; and, if that additional impairment was not ‘serious’, then leave to commence a common law proceeding must be refused.
[1] [1994] 1 VR 436.
160Mr Stanley contended that it is difficult to undertake the analysis called for by Petkovski because of the paucity of evidence of the differences the plaintiff is subjected to now and before.
161The fact of the plaintiff experiencing effects by way of increased pain and reduced function is supported by evidence. I do not agree with characterisation that Mr Stanley initially attributed to the evidence of the plaintiff as being ‘desperate’ because in his first affidavit at paragraph 41, he deposed that ‘I also need to take care when I am cleaning the sand pit with a shovel and in this regard, I have set it up to make it a lot easier for me, although I do not clean it as much as I used to’. This was but one of number of aspects of reduced or adversely affected functionality, the carrying out of which the plaintiff deposed dictates the need for him to exercise caution due to the state of his back and that was not required beforehand. Obviously, of itself, cleaning a sandpit could not sensibly present as meeting the test for very considerable, but it is one of various changes that the plaintiff points to, as does his wife, and that I was urged to find impress as not only important to him but when judged objectively are very considerable.
162The plaintiff’s experience of pain is particular to him and subjective, but as identified in numerous authorities, the Court is also required to judge objectively, that is to say, objectively assess the subjective experience and determine if it satisfies the test of serious injury. In addressing the test that is required by law in determining whether a plaintiff’s injury satisfies the requirements for a certificate for pain and suffering, the Court of Appeal in Haden Engineering Pty Ltd v McKinnon [2] addressed a framework for a consideration of pain and suffering in a serious injury application. President Maxwell said the framework requires an analysis of the evidence of the plaintiff’s experience of pain and the disabling effect of the pain and to assess the combined effect of the two for the purposes of the objective test for a determination of a serious injury.
[2] (2008) 234 CLR 124.
163In bringing my assessment to bear on what the plaintiff says about his pain I have taken account that the injury by way of pain interferes with his life by reductions in the capacity to do things he could previously do either unrestricted or at the very least in a far less restricted manner than now prevails. These are largely related to activities in and about the home and garden, such as inability to clean gutters, dig and shovel, each of them being activities I accept he was able to do in the past, and that he is no longer able to make good things associated with the renovation of his home and its surrounds.
164I am satisfied that the plaintiff’s personal care is largely intact.
165The plaintiff’s sleep disruption on some occasions seems to be adversely affected for reasons unrelated to back pain. The plaintiff agreed with the account by Dr Drnda, that when he is in bed he is without pain. That is not to say he is not wakened by pain. I also recognise, as Mr Brett submitted, that the plaintiff did not disavow his affidavit evidence that his back pain does wake him at night. I am satisfied that there are occasions that back pain wakens him. I have afforded that consequence some consideration.
166I accept the plaintiff’s account that some mornings he is unable to get up from bed and straighten up and it being recorded that he can only roll out of bed. I accept that the plaintiff makes use of a tilt bed as Mrs Kindred disposed to. I accept that this is a special adaption required by the plaintiff in answer to the affected functionality of the back.
167I have taken into account that the plaintiff continues to work in a full time capacity. A capacity to return to work, of itself, is not a reason to preclude the grant of relief, but it is a consideration that I have had regard to, as part of assessing the full evidentiary matrix. I accept that the current work performed at Seaway appears to be less physical than the earlier lifting bags of powdered milk he undertook with it.
168The plaintiff takes few days of work. The adjective ‘stoical’ is an overused one, but having had close regard to the plaintiff in the witness box and conscious of the circumstances that he and his wife confront with their son, and that the plaintiff is the primary breadwinner, his commitment to work befits that characterisation. I think it also goes a considerable way to explaining some relatively benign descriptions that, for example, is found in the reporting by some of those who have seen the plaintiff on both sides for medico-legal assessment. I do not treat the plaintiff’s persistence in work causes me to doubt that it is undertaken with pain and that he has a continuing need for treatment.
169He is presently fortunate to be able to earn income in a less physically demanding type of work, but in the future, should the necessity arise, other work would need to be able to accommodate his injury and recommended restrictions addressed in reporting.
170In considering what the plaintiff has done about his pain, I accept that he adopts modest measures to avoid activities that cause him exacerbations of pain. He takes rest at night as well as during breaks at work. He makes use of hot showers on occasion. His limited over the counter pain relief is explicable because of his concern about a possible interference with his medication for his epilepsy. I find that the plaintiff’s required recourse to chiropractic treatment is certainly of a more frequent and regular regime than Dr Sheard described as ‘occasional’. Indeed, Dr Slesenger spoke of frequent attendances by the plaintiff on his chiropractor in the immediate period leading up to the date of his examination of the plaintiff.
171I am satisfied that the regular chiropractic attendances the plaintiff has for the maintenance of his back allows him to work full time and to go about his life but to a restricted degree and in reduced functional way. I venture to suggest, that based on the medico-legal reporting, the injury the plaintiff suffers is not susceptible to, or likely to benefit from, more invasive or conventional modalities of treatment. He is concerned by his epilepsy and the potential adverse effects other medications may cause. His attitude and reticence in this regard was not challenged.
172Without ongoing chiropractic maintenance the plaintiff experiences increased pain and the need to resort to heat and cold packs and hot showers but that these are less efficacious. This is the course and the regime that he has followed for years and that seems likely to continue and be a permanent feature of his life.
173From a medical point of view, there has been no treatment obtained by the plaintiff for his back over the passage of at least 13 years. It was difficult to appreciate the plaintiff’s reason for not attending a GP and to not mention the troublesome back over these many years. Perhaps having obtained the benefits he described from chiropractic care the need for medical treatment has not crossed the plaintiff’s mind as did the more dramatic symptoms that he experienced that led him to his colonoscopy or that are associated with his epilepsy. However, that is speculative. Those who provide him with chiropractic care have not thought fit to refer him on for medical assessment, which Dr Jones said would occur if those who provide the plaintiff’s treatment thought it warranted.
174I am satisfied that the plaintiff suffers pain of a degree described by Dr Wilde that is of ‘constant low-grade back pain, typically ranging from 3 to 4 on good days and occasionally reaching 7 or 8 out of 10 on bad days. Some days, he has minimal pain’. The evidence does not permit me to conclude how frequently the pain presents at the higher rather than the lower range.
175The plaintiff experiences some interference to his enjoyment of life. It is evident that he has not led and does not now lead a lavish existence. The injury has not, for example, robbed him of a suite of hobbies or recreational activities from which he derived pleasure. His social network appears to have been modest. Of course not all injured workers will present with having had a range hobbies or sporting or recreational activities before an injury, perhaps because the demands of work and family life preclude them, or because of the nature of the individual concerned. However, for a person to lose or to suffer a reduced ability to enjoy what may only have been limited pleasures may nonetheless sound as a significant consequence. The plaintiff’s affidavit of the inhibitions he experienced in his ability to participate with his wife on their brief trip to Sovereign Hill, in Ballarat was telling. He said that he could not climb the terrain with her leaving her to do so alone but yet the effect on him of the trip necessitated specific chiropractic attendance for treatment.
Conclusion
176Having taken into account all of the evidence, the assessment I have derived from the medical reporting relied on by each of the plaintiff and defendant, is that ongoing pain and interferences resulting from it, are not trivial for the plaintiff. I am also satisfied that they objectively satisfy the test required by comparison to a range of like impairments. I find that the impact of the identified cumulative consequences fairly described, satisfy the statutory test in that they are more than significant or marked and at least very considerable.
177The application is granted.
178I will hear the parties on the final orders required.
0
2
0