McNiven v Victorian WorkCover Authority
[2025] VCC 1189
•25 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-06276
| DAVID MATTHEW McNIVEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 July 2025 | |
DATE OF JUDGMENT: | 25 August 2025 | |
CASE MAY BE CITED AS: | McNiven v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1189 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the spine – paragraph (a) of the definition of “serious injury” – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Johnson | Arnold Thomas & Becker Lawyers |
| For the Defendant | Mr A Kleiman | Wisewould Mahony |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff on 6 May 2019 (“the injury”), while employed by the City of Greater Geelong (“the employer”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.[1]
[1]The claim was initially brought in relation to both parts (a) and (c); however, at the commencement of closing addresses, counsel for the plaintiff abandoned the part (c) claim
Relevant legal principles
3The application for leave to bring proceedings for damages is brought pursuant to parts (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act. The wording of the definition of “serious injury” in the Act in relation to part (a) is as follows:
“serious injury means—
(a)permanent serious impairment or loss of a body function; …
… .”
4The impairment of body function relied upon is the function of the spine. In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury,” by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer, on or after 1 July 2014. As set out in s325(1) of the Act, the physical impairment must be permanent.
5The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
6In relation to the physical impairment, by s325(2)(c) of the Act, it is the “consequences” of the physical impairment which produce the “pain and suffering” or “loss of earning capacity” (as the case may be) which must be “serious” – that is, if the plaintiff is to succeed in his claim, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of that body function results in relevant “consequences” that are, “when judged by comparison with other cases, in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative test”. It has been held that this task is largely a question of impression or value judgment.[2]
[2]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
7In determining the application, the Court:
(a) must assess whether the injury is a “serious injury” as at the time the application is heard;[3] and
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[4]
[3]Section 325(2)(j) of the Act
[4]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
8Section 325(2)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to physical impairment.
9By s325(2)(b) of the Act, in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the physical impairment or the mental or behavioural disturbance or disorder (as the case may be) arising from the injury the subject of this application, and the range of possible physical impairments or mental or behavioural disturbances or disorders.
10In reaching my conclusion in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor.[6]
[5](2005) 14 VR 622
[6](2006) 14 VR 602
11The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[7] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[7]Specified pages of the Plaintiff’s Amended Court Book were marked as Exhibit (“Ex”) P1. Specified pages of the Defendant’s Amended Court Book were marked as Ex D1.
The Plaintiff’s background
12The plaintiff was born in June 1970. He is presently fifty-five years old.[8] He has worked thirty-eight hours per week as a truck driver for the employer since approximately October 2009. He completed Year 10 at high school and then worked as a manual labourer with no formal training. When he was approximately twenty-four years of age, he obtained a truck licence. He worked for a number of different companies before commencing with the employer.
[8]Ex P1, p32
13Whilst working for the employer, he worked from a depot at Anakie Road, Lovely Banks.[9]
[9]Ex P1, p33
14He married his wife in 2001. Six weeks later, at the age of twenty-six, his wife had a heart attack. She fell down the stairs and suffered from a hypoxic brain injury. As a result, he must care for his wife.[10] The plaintiff and his wife have two children, the first aged twenty-two and the second aged twenty.[11]
[10]Ex P1, p33
[11]Ex P1, p33
Prior medical conditions
15Prior to the incident, the plaintiff did not suffer from any significant back pain or other injury that prevented him from undertaking his duties with the employer.[12]
[12]Ex P1, p33
16In October 2008, while working for another employer, he fell from a tip truck and suffered injuries, including to his pelvis and ribs. He believes he was off work for approximately three months. He was made redundant from that job some time in 2009, before commencing with the employer. He had returned to normal duties before the redundancy. He was continuing to have physiotherapy for that injury. He was able to perform all of his duties with the employer when he commenced with them.[13]
[13]Ex P1, p33
17In approximately 2010, he was diagnosed with a labral tear in his right hip. He started having trouble with his sleep at that time. In approximately October 2014, he underwent an arthroscopy for his hip and he was “good after that”. After that procedure, his right hip was not preventing him from doing his duties with the employer.[14]
[14]Ex P1, p33
The circumstances of the injury
18On or about 6 May 2019, at approximately 2.30pm, the plaintiff attempted to free a tailgate that had become stuck on his truck. He had taken a load of waste from the depot to the tip and returned to get another load to take to the tip.[15]
[15]Ex P1, p33
19On returning to the depot, he noticed that the tailgate was not properly closed and he saw that there was still some refuse in the truck. To dislodge the refuse, he tried to lift the tailgate with some force, but it would not move. He felt immediate pain in his back. He continued to work, as he thought he had only pulled a muscle.[16]
[16]Ex P1, p34
20His back pain increased overnight. His sleep was terrible. He saw his local doctor the next day. Investigations were undertaken and he was informed there was a wedge fracture in his thoracic spine. He was off work for approximately three months. He returned to work on modified duties for a period doing inspections. He returned to full-time duties on a gradual basis over a period of approximately six months.[17]
[17]Ex P1, p34
21He continued to work but experienced ongoing back pain which flared up significantly at times. In particular, he found that sitting in a “bouncy” truck on rough tracks, aggravated his back pain, such that he required ongoing periods away from work.[18]
[18]Ex P1, p34
22He was off work for most of 2022, due to severe thoracic pain.
Evidence concerning the consequences to the Plaintiff of his injury
23As set out above, the plaintiff relied upon two affidavits, the first affirmed on 5 June 2024 and the second sworn on 19 May 2025.
24In summary, the plaintiff’s evidence as to the pain and suffering consequences which he presently experiences as a result of the injury to his spine, is as follows:
Experience of pain
(a) he experiences nearly constant thoracolumbar back pain, which fluctuates in intensity. The level of his pain depends on the activity that he is undertaking. The pain travels around his ribs. His muscles “lock up” and his spine is stiff. This limits his ability to bend and lift. Sometimes he finds it difficult to get in and out of his truck;[19]
[19]Ex P1, p35
(b) he continues to experience “flare-ups” of his back pain which have continued intermittently since his original injury on 6 May 2019. When these flare-ups occur, he continues to require time off work;[20]
[20]Ex P1, p40
(c) the pain he experiences in his back is a “dull ongoing constant pain which does not go away”. The pain in his back worsens with strenuous activity. He tries to avoid repetitive lifting, carrying, bending, twisting and reaching, due to the pain he experiences;[21]
[21]Ex P1, p41
Treatment and medication
(d) following the injury, he remained off work for around three months, before attempting a return to work on light duties, with a gradual return to full-time work. He was ultimately cleared for full duties in early 2020, but required ongoing intermittent physiotherapy treatment by Ms Virginia Cooper of Golden Plains Myotherapy & Massage Clinic, as his back pain would flare up from time to time. His pain at that time otherwise remained at a “dull aching level”;[22]
(e) when he experiences flare-ups as a result of his activities, he requires time off work. He continues to attend Brad Saunders, physiotherapist, every one to two weeks, for massage and needling treatments. He continues to attend his general practitioner (“GP”), Dr Shailesh Singh, as required for prescriptions and certificates of capacity;[23]
(f) he uses a TENS machine on a daily basis, to help manage the pain in his back. This assists him to cope with the pain to a small degree, but does not take the pain away. It is frustrating to have to do this on a daily basis to try and manage his pain;[24]
(g) he now takes the following medication for the pain associated with his spinal injury:
(i)Norflex, 100 milligrams once per day;
(ii)Panadol Osteo, two tablets in the morning and two tablets in the evening;
(iii)Endone and Palexia as required, for severe flare-ups;
(iv)medicinal marijuana, which is prescribed by his GP;[25]
[22]Ex P1, p39
[23]Ex P1, p40
[24]Ex P1, p40
[25]Ex P1, p40
Sleep
(h) his sleep is interrupted by his pain. He struggles to sleep more than three or four hours per night. He has purchased a new mattress and pillows to make it more comfortable for him in bed;[26]
[26]Ex P1, p35
(i) notwithstanding this purchase, he finds it difficult to find a comfortable position in which to sleep. He is lucky to have more than three hours of continuous sleep without waking due to pain. When he wakes up, he is generally awake for up to one hour before returning to sleep. When he is awake, he walks around and stretches his back, in order to try and relieve the pain that he is experiencing. As a result of his disturbed sleep, he wakes up tired and unrefreshed;[27]
[27]Ex P1, p42
Activities of daily living
(j) he struggles to perform the housework at home. He has difficulty with cooking, gardening and cleaning. He takes his time with these tasks and he is slow. He needs to rest afterwards and take medication. His wife does the mowing and Whipper-Snippering of the lawns;[28]
[28]Ex P1, p35
(k) he used to do a lot of home maintenance. His wife tries to help him at home. Twice in the last twelve months she has fallen from a ladder. In the most recent fall, his wife broke her nose and injured her wrist;[29]
[29]Ex P1, p35
(l) he is reliant on a cleaner at home, who attends every three to four weeks, and a handyman to clean out the gutters at home around every three months. These are tasks which he would have performed himself, prior to his injury;[30]
[30]Ex P1, p41
(m) while he can cook, he is limited in the period of time he can stand to prepare food due to the pain;[31]
(n) the cleanliness in his home is now “less than ideal”, as he tries to avoid vigorous or forceful movements of his spine. The twisting, lifting and reaching involved in cleaning the bathroom, vacuuming and changing beds is difficult for him. He finds this frustrating, as he was previously unrestricted in his ability to help around the home;[32]
(o) he can stand or sit for thirty minutes. He can walk for twenty to thirty minutes;[33]
(p) his mobility is significantly restricted due to the pain he suffers in his spine. He now avoids walking for longer periods or standing for long periods. He can walk to the local shops but needs to rest afterwards due to the pain in his spine. He avoids running as this would jar his back and increase the levels of pain that he experiences. He has to step carefully on rough and uneven surfaces, so as not to aggravate the pain in his spine. Getting in and out of low vehicles is painful for him. Prior to the injury, he was unrestricted in his ability to walk, run and stand for long periods of time;[34]
(q) he continues to experience restrictions in his ability to drive long distances without experiencing significant pain in his spine. He finds that after around one hour of driving, he is stiff and sore in his back, and the dull aching pain becomes stronger, requiring him to stop and rest.[35] If he is a passenger in a car, he needs to brace himself when the car goes around a corner;[36]
Hobbies and enjoyment of life
(r) he has not been able to return to any form of golf since suffering the injury to his spine. He has attempted to play golf on three to four occasions, but experienced significant back pain when attempting to swing. He realised that it is not something that he is now capable of undertaking. He misses the enjoyment of being able to go for a round of golf, even on a social basis;[37]
(s) he used to enjoy camping with his family, but now needs to book somewhere where there will be a good bed, due to the difficulty he experiences with sleeping on hard surfaces with his back pain.[38] If he sleeps on bedding that does not support his back, he “suffer[s]” and if affects his enjoyment of the holiday;[39]
(t) he used to enjoy fishing with his family and used to go out regularly on the Murray River and also on Corio Bay. He is unable to do this activity now. He greatly misses the enjoyment of fishing on his boat.[40] He got rid of the boat approximately four years ago, because he was barely using it due to the pain he suffers from his injury when he is in the boat. Fishing in his boat gave him pleasure and he used to take his children out with him;[41]
(u) his sex life with his wife has been affected by his back pain. He has trouble maintaining an erection, so he tried using Viagra to correct this problem. Unfortunately, the Viagra had a negative effect on his stomach and he has had to discontinue the use of it. As a result, he continues to have a poor sex life with his wife. Having sex is uncomfortable and unenjoyable, due to his back pain;[42]
[31]Ex P1, p41
[32]Ex P1, pp41-42
[33]Ex P1, p35
[34]Ex P1, p41
[35]Ex P1, p43
[36]Ex P1, p36
[37]Ex P1, p43
[38]Ex P1, p42
[39]Ex P1, p35
[40]Ex P1, p42
[41]Ex P1, p36
[42]Ex P1, pp 35 and 42
Ability to work
(v) after he returned from holidays in January 2022, his back was not able to cope with the work he was doing and he felt a worsening pain in his thoracic spine. It felt like he had cracked a rib and he required a significant time off work as a result of the pain and restriction he was experiencing;[43]
(w) since returning to work towards the end of 2022, he has coped as best he can with his work duties, given the pain he still experiences in his spine. He forces himself to “push through” his back pain to a significant degree. He does so because he is reliant on his income due to the circumstances of his wife’s inability to work, both physically and mentally;[44]
(x) he is fortunate that his current role does not require him to engage in any significant manual handling. He copes as best he can with the requirements of getting in and out of the cab of his truck, checking the engine and the contents of the tub on the back of the truck;[45]
(y) generally with this work, he does not need to drive for longer than around thirty minutes, so he is able to cope with this. Sometimes he struggles with the long periods of sitting which are associated with his role as a truck driver. At times he is required to wait for long periods and he needs to get out and stretch, due to the pain that he experiences in his back. He just has to “put up with this” and get on with his work, because he has no alternative. He is uncertain how long he will be able to continue working with his back pain, but intends to continue doing so as long as he is able to;[46]
(z) in late December 2024, he was stood down with pay from work, pending a review of his fitness for work over a two-week period. He was very stressed by this, but obtained a clearance to perform his duties and has been able to continue working since that time. If his employment had been terminated, he believes he would have difficulty obtaining alternate work;[47]
(aa) he is concerned about his employment prospects in the future, given his back injuries and the restrictions that it causes. He had hoped to continue working until the age of sixty-seven. He cannot see a realistic pathway to him obtaining alternative work, given his work history, age, injuries and limitations. He has never worked in an office and is not very computer literate. He is an outdoors’ manual-type worker. He does not feel his employment is secure;[48]
(bb) he feels despondent about his future and the pain he experiences as a result of his injury.[49] He worries a lot about the future and that his ability to find work in the general marketplace as a settled member of the workforce will remain restricted for the rest of his life.[50]
The Plaintiff’s viva voce evidence
[43]Ex P1, p39
[44]Ex P1, p39
[45]Ex P1, p41
[46]Ex P1, p43
[47]Ex P1, p43
[48]Ex P1, p36
[49]Ex P1, p36 and 43
[50]Ex P1, p44
25Under cross-examination, the plaintiff gave the following relevant evidence:
(a) when he affirmed and swore his affidavits, he was not exaggerating the symptoms he experiences as a result of his injury, in any way;[51]
[51]Transcript (“T”) 17, Line/s (“L”) 19-26
(b) he still works with the employer for thirty-eight hours per week consistently. This is as both a truck driver and also as a plant operator;[52]
[52]T18, L4-9
(c) as part of his job as a truck driver, he transports necessary materials and/or items to and from various worksites. The longest trip he does in his truck is from Corio to Somerton, which takes a bit over an hour. Prior to his injury, he used to do much longer trips; [53]
[53]TT19-20
(d) when he is unloading the truck, none of it is done by hand. A back hoe, a bobcat or a skid steer is used to assist. He operates those pieces of equipment. Out on job sites, he is usually in the truck;[54]
[54]TT 20-21
(e) he does not assist with traffic management, or spotting, for any of the operators onsite;[55]
[55]T21, L9-11
(f) he is never involved in clearing drains, de-grassing, sweeping roads, or those types of tasks. That is not required of him in his current role. He had previously done those tasks prior to his injury. Since his injury, he has told his employer there are certain machines that he is no longer able to operate;[56]
[56]T21, L13-27
(g) if he has to use a loader to unload his truck, he would be in the loader for about fifteen to twenty minutes maximum;[57]
[57]T22, L3-9
(h) he did not agree that his current role demands a high level of physical activity. In relation to this, he said:
“… these days I’m just driving the truck so it’s not … very physical.
…
… pre-injury I’d be put on a roller, I’d be put on a backhoe or I’d be put on a skid steer. And those are roles that … I no longer wish to do … because it does cause me aggravation and pain.”[58]
[58]T22, L15-24
(i) as part of his present role, he does not need to unlock the truck tray gate. It is automatic:
“… it’s like I said, it’s levers and switches in the cab which I hit and it undoes the tail gate by itself.”[59]
[59]T24, L8-10
(j) it was suggested to him that he routinely drives for up to three hours as part of his job. He denied this. He was pressed about this point and said “I’m certain I don’t”;[60]
[60]T25, L10-20
(k) he was taken to a report from a medico-legal expert which recorded that part of the difficulty posed for him in his job is “sitting in the truck for extended periods of two to three hours”. The plaintiff explained that this is a reference to sitting in the truck on worksites. He said that when he has to wait at sites, the way he manages himself when he is feeling uncomfortable, is to get out of the truck and move around;[61]
[61]T26, L1-14
(l) it was suggested to him that his job is fairly described as “high-pace”. He denied this and said “I wouldn’t say high-pace. Ongoing, yeah. It keeps moving along.” He denied that there was an element of time pressure when he is travelling from worksite to worksite;[62]
[62]27, L11-16
(m) it was suggested to him that he is quite capable of sitting for up to a couple of hours. In response to this, he replied:
“… when I’m forced to yes …
…
When I’m stuck in the middle of a job …
… it’s rare but in certain jobs, you might get called into a job to go under an excavator, excavator loads you a little bit, then they have got to look for powerlines or they’ve got to look for water so you wait. You cannot get out of the truck at those times, and then that might take them half an hour … When you’re in the middle of the worksite, yeah, it’s not really possible to jump out of the truck and stretch my legs. It’s something that can become very uncomfortable.”[63]
[63]TT27-28
(n) he is generally capable of sitting without having stop, rest and stretch for “… up to half an hour”;[64]
[64]T28, L12-15
(o) it was put to him that at various points in the Court Book, he had sworn that he could be in a car and drive for up to two hours before needing a rest. In another affidavit, he had said that after one hour of driving, he would become stiff and sore in the back and the dull aching pain becomes stronger, requiring him to stop and rest. It was suggested to him that his evidence to the Court was different again. In response to this, he replied:
“It just all depends on the day and how I’m feeling and how I’m going. Like some days I might find that job a little easier to do than other days, it just all depends on the severity of the ache I get in my back.”[65]
[65]T29, L30 – T30, L3
he was pressed on whether or not it is really half-and-hour of sitting before he needs to change posture. In response, he replied:
“Well, yeah, I would say that today …
… I’ve sat in the car all the way from Teesdale this morning …
… [that took] [t]wo hours.”[66]
[66]TT29-30
(p) he was asked whether or not he had taken a break while driving to Court in the morning. He said that they stopped on the outskirts of Geelong, about half-an-hour into the trip. He agreed that this meant he was then sitting in the car for another ninety minutes. When asked whether or not he was compelled to get up and shift his position in the car during that time, he replied, “No, because we were stuck in traffic. You just can’t pull over on the side of the Princes Freeway”;[67]
[67]T30, L10-24
(q) he was taken to the fact that Dr Singh had certified him, in January 2025, as fit for “unrestricted duties”. He acknowledged that this is the case. It was suggested to him that he is physically capable of performing more physical tasks. In response to this, he replied “I do … physical things from time to time, but it’s … what happens afterwards … the pain increases”;[68]
[68]TT30-31
(r) he was pressed on the fact he had been certified fit for his employment by his doctor earlier in 2025. In response to this, he replied “Yeah. That’s because they stood me down [under] their fit for work policy”. It was suggested to him again that he is quite capable of performing work with a high level of physical activity. In response, he replied:
“Oh, well … I can do – like if I want to help the wife with mowing the grass and all that sort of thing, I can, but it’s what happens afterwards is the pain comes back …
… I can be in pain during physical activity, it’s just that I push through it.
… And then that’s when I usually hit my TENS machine … .”[69]
[69]T31, L1-31
(s) his truck is 3.4 metres off the ground. He uses the handle on the seat and the steps to get into and out of the truck. He needs to be careful with the way he gets into and out of the seat in order not to aggravate his back. He explained:
“I sort of have to … like once I climb in there I just can’t shimmy across like that, I’ve got to actually lift myself up and move across and get comfortable and the seats are very good in the trucks these days, they have air suspension and all sorts of positions you can put the airbags for support on your back.”[70]
[70]T32, L15-31
(t) there is no lifting involved in his job.[71] There is no bending or twisting or other types of functional movements required as part of his job;[72]
[71]T33, L5-7
[72]T33, L8-9
(u) when he injured his back, he was off work for about three months, having been diagnosed with a wedge compression fracture. He agreed that he returned to work on modified duties in mid-2019. He agreed that by the beginning of 2020, he was back working full-time hours. When it was put to him that he was “doing well” at that time, he replied:
“I wasn’t doing so well but I was back working full time hours. I started to see Virginia Cooper from Golden Plains Massage in 2020 because I was having issues.
… it got pretty bad. … I could go a maximum of probably six weeks before I had to go back and see her and I was in a lot of pain ... So it’s gradually increased my physio to [a] fortnightly [and then] to [a] weekly basis.”[73]
[73]T33, L11-30
(v) it was put to him that between February 2020 and January 2022, he did not once attend his GP complaining of back pain. In response, he replied “As far as [I recall] I had. Because I was seeing Virginia Cooper to get treatment for it”;[74]
[74]T34, L3-9
(w) he did not recall if he was prescribed any medication for his back by Dr Singh during that time;[75]
[75]T34, L11-14
(x) it was suggested to him that during that time he was “doing pretty well”. In response, he replied “well I was sort of. I mean, it would flare up, I would get pain and I would have to go and see Virginia”;[76]
[76]T34, L15-18
(y) it was suggested to him that the flare-ups that he is now complaining of, started from 2022 onwards. He denied this, and said that the employer would have records of his attendances upon Ms Cooper, because the employer had paid for those consultations;[77]
[77]T34, L21-27
(z) it was suggested to him that in December 2021, he was doing so well with his back injury, that he was performing home renovations. He denied this, and said his renovation had ended in 2019;[78]
[78]T35, L10-12
(aa) a note dated 21 December 2021 was put to him. In that note, it was recorded that he had had knee “pain ++” and that he was “doing home reno up and down”. He said that this was when he was diagnosed with osteoarthritis in both knees. The note also contained the words “nil other concern”. It was put to him that this was suggestive of the fact that his back was not bothering him at that point. He said this could be possible. He thought that the words “doing home reno” could possibly have been a reference to him painting or climbing up and down a ladder. He said that when he painted the house, his wife and kids helped, and the builders helped a bit. He said that the job took “Oh, ages, months … weather permitting”;[79]
[79]T36, L1-31
(bb) he was asked why he did not employ painters after the building work was completed. He replied, “I’ve always been capable of doing things myself until this happened”. It was suggested that he would have been spending most of the day on a weekend doing the painting job. In response, he replied “No, well, I had a scaffold … so I climbed onto the ladder onto a scaffold as well, to help”. When it was put to him that he was picking up heavy tins of paint, he replied “… it was only four-litre tins … two or three kilos, I guess …”;[80]
[80]TT37-38
(cc) he agreed that the next time he complained about his back was on 6 January 2022. He was asked if there was a particular incident that had caused his back pain. In response to this, he replied, “No … Not that I can recall”;[81]
[81]TT38-39
(dd) it was suggested to him that at this time it was “a very different type of pain that you started complaining of, a new sort of pain that stretched around your ribs”. In response, he replied “That’s always been the case”;[82]
[82]T39, L8-10
(ee) it was put to him that he had had various workplace injuries prior to the incident. He agreed with this. He was asked whether, after falling off the tip truck, he had rib pain. He agreed that he did, but said that this had resolved “years before” the incident. After this his ribs were totally fine;[83]
[83]T39, L19-27
(ff) after he complained of his back pain in January 2022, he was prescribed Lyrica and Celebrex to manage that pain;[84]
[84]T39, L29-31
(gg)it was put to him that prior to this attendance on his GP in January 2022, he had gone for twenty-two months without complaining of his back pain to his GP, although he had raised other concerns with his GP during this time. In reply, he said, “But during that time I was seeing Virginia Cooper on a regular basis to have treatment”;[85]
[85]T40, L1-11
(hh) he denied that there was any correlation between the 2008 incident that gave rise to right-sided rib pain and the pain that he was then experiencing in 2022. In response, he replied, “No. My rib pain isn’t just restricted to the right side, it can be the left side as well … it was ongoing pain from a fractured spine”;[86]
[86]TT41-42
(ii) he had no doubt that the 2022 symptoms he reported were linked to his back injury;[87]
[87]T42, L8-12
(jj) he agreed that he had quite a lot of time off work during 2022;[88]
[88]T43, L24-31
(kk) he said that in recent times, he has had three to four times off work per year, sometimes for a week, sometimes for a fortnight;[89]
[89]T44, L2-6
(ll) the flare-ups that he experiences are random and there is no particular trigger that he has identified;[90]
[90]T44, L9-17
(mm)when asked about the pain in his mid-back where his fracture was, he said that it is constant and does not abate at all. He agreed that it fluctuates. When asked how it compares with the pain he experienced in 2022 when he was off work, he replied:
“It’s better than what it was back then.
… I’ve had different medications. We’ve worked out my medication. We’ve worked out the physio, we’ve worked out my routine, we’ve worked out what I can do, what I can’t do, what to stay away from, what not to do. It’s all taken time.”[91]
[91]T45, L6-16
(nn) it was suggested to him that the improvement in his pain in that area was not “marginal”, but had in fact had improved quite significantly and he is now “largely pain free”. He did not agree with this characterisation;[92]
[92]T45, L19-22
(oo) he was taken to a report authored by Dr Anthony Menz, consultant orthopaedic surgeon, dated 11 September 2024.[93] In that report, it was noted that the plaintiff had reported “Currently he is quite pain free”. In response to this, the plaintiff replied “Well, they’re his words. ... I wouldn’t say they’re my words.” It was put to the plaintiff that Dr Menz had written that line because he had been told this fact by the plaintiff. The plaintiff did not agree with this proposition. The plaintiff was asked whether or not Dr Menz had therefore “misinterpreted what you’ve said”. In response to this, he replied “I’d say so. ... I’ve always got a level of pain there. Some days are worse than others.” It was suggested to the plaintiff that his pain in that area is “very minor pain”. In response to this, he replied “At times. ... it can be aggravated ... I’ve got to be very careful what I do these days”;[94]
[93]Ex D1, p16
[94]TT45-46
(pp) it was suggested to him that he does not suffer from flare-ups very frequently. He confirmed that he suffers “a few” flare-ups a year. It was put to the plaintiff that on most days of the year, he goes about his business with “a baseline level of pain” which he says is constant. In response, the plaintiff explained:
“It increases during the day. It’s always less in the morning when I’m starting my day but as I get through towards the end of the day I’ve had enough and I just want to go home and rest and by the end of the week I’m knackered.”
(qq) it was suggested to him that he had not included anything in either of his affidavits about his pain increasing throughout the day. In response, he replied “I probably wasn’t asked”;[95]
[95]T46, L23-23
(rr) he was asked about the fluctuating pain he experiences during the day. In response, he replied:
“Oh, well sometimes ... like when I’ve got to take time off work it gets to a 10, during the day, you know, four, five, six. Go home, put the TENS machine on, have a nice hot shower, do me (sic) stretches, lay down on the bed, watch TV for an hour or so and then I get up and I’m feeling better than what I was an hour ago.”[96]
[96]T47, L2-11
(ss) he was asked if he would accept that most of the time his pain is only at a level of one or two out of ten. In response, he replied:
“Most of the time? No. Like I say, when I’m starting my day early in the morning because I've been in bed, I’ve had no pressure on my spine, I can get up and start doing things. I can go to work.”[97]
[97]T47, L12-17
(tt) it was suggested to the plaintiff that given the level of pain that he says he is in, he might have considered at some point opting for a more invasive form of treatment like a spinal injection or back surgery. In response, the plaintiff said that these things had been raised with him by Dr Greg Etherington, spine surgeon, a medico-legal expert for the defendant. He said that Dr Etherington had discussed the insertion of a spinal cord stimulator with him, but that Dr Etherington had said that, in general terms, he should stay away from surgery if he could;[98]
[98]TT50-51
(uu) he confirmed that he is restricted in standing to about 30 minutes. He said that in relation to walking, he can walk to a shop about a kilometre away, and that there and back is “enough for me, and I’ve got to sit down and rest after that”. It was put to him that he is not actually in pain after walking a kilometre back and forth. In response, the plaintiff replied “It starts to ache, yeah”;[99]
[99]T51, L22-31
(vv)it was suggested to him that he is quite capable of carrying shopping bags. He said “Not heavy ones, no”;[100]
[100]T52, L3-7
(ww)he denied that walking actually relieves his back pain. He said that when he feels discomfort, what he needs is to change his posture. He explained that when he is lying down, if he becomes uncomfortable, walking around can help. When he is walking around and he is uncomfortable, sitting down can help his pain level. He explained that what he is saying is that he needs to change posture, to relieve his discomfort. He confirmed that there is no particular activity that relieves his pain. It is more changing his posture that assists;[101]
[101]TT52-53
(xx)the plaintiff was taken to a clinical record made by Dr Singh on 25 November 2024, where it was recorded that his ability to squat and bend to touch his toes, is “within normal limits”. The plaintiff denied that he had squatted for Dr Singh, and said that he can try to touch his toes, but he never actually does touch his toes. When asked whether he maintains that he gave no actual demonstration of these things for Dr Singh, prior to him recording that note, the plaintiff confirmed that he had not done so;[102]
[102]TT54-55
(yy)he struggles from time to time with housework. He said there are days when he is sore and he does not do any. On those occasions, his wife will help him;[103]
[103]TT58-59
(zz)he said that he is capable of performing some cleaning tasks around the house, for instance sweeping the floor occasionally. He was asked whether or not he can vacuum. He said that he does not do it. When asked whether or not he could do it, he replied:
“I probably could, but maybe suffer from it ... we’ve got quite a large vacuum cleaner, so it’s got a bit of weight to it, so no. … my wife does most of that. ... I help out with the dishes occasionally. ... I cook occasionally, if it’s quick and easy.”[104]
[104]TT58-59
(aaa)he experiences pain while cooking because of the need to stand in the kitchen. He said the problem is that he cannot change his posture to sit down while he is cooking. He said that he does cooking “From time-to-time”;[105]
[105]T59, L17-27
(bbb)he occasionally makes the bed, but cannot move the mattress. He explained “It’s only a Doona and two pillows”;[106]
[106]T59, L28-31
(ccc)he was asked about gardening. He explained that his wife performs the mowing. He was asked whether or not he is capable of doing the mowing. In response, he replied “I could do the mowing but I’d be sore afterwards. I no longer whipper-snip as that requires me to twist and turn”. When asked what gardening he performs these days, he replied “Very little”;[107]
[107]T60, L2-8
(ddd)he confirmed that he cares for his wife. When asked what this involves, he replied “... I’ve got to think for her a lot. ... She gets confused easily ... .” When asked if it is more like having to supervise his wife, a bit like having a child, he replied “Exactly. ... A hundred per cent”;[108]
[108]T60, L9-22
(eee)he has not done any home maintenance for a while. He now pays someone to clean the gutters. He was asked whether or not he would be physically capable of doing that task. He replied “Last time I did it, I ended up very, very sore. ... It was a couple of years ago”;[109]
[109]TT60-61
(fff)it was suggested to him that in the division of labour between him and his wife at home, while there are some things that he does not do, in fact he has the physical capability to do them. In response, he replied:
“Yeah, but I don’t do them because I know what’s going to happen now. I know what’s going to happen. It’s taken me a few years to figure out what’s been going on, so I’m gradually pulling back on doing a lot of things … around the house.”[110]
[110]T61, L23-29
(ggg)it was suggested to him that he can do some of the sweeping, mopping, vacuuming, cooking and cleaning. In response, he replied “Okay, yeah”;[111]
[111]T62, L2-4
(hhh)he presently struggles to get more than three or four hours of sleep a night. This is still the case. He consumes medical marijuana every night. It was put to him that this would assist him with his sleep. In response, he replied, “Helps me to get to sleep”. When asked why he only sleeps three to four hours a night, he replied “Aches and pains. ... In my back, around my ribs”. He confirmed that these sorts of aches and pains wake him up habitually during the night. When asked how long he usually stays awake for, he replied “Oh, generally half an hour to an hour. I can’t actually roll over in bed, I’ve got to actually ... pick myself up ... .” He said that the pain and stiffness gets worse during the night;[112]
[112]T62, L5-23
(iii)his alcohol consumption in the evenings aids him in getting to sleep;[113]
[113]T62, L24-31
(jjj)he wakes up feeling unrefreshed every day;[114]
[114]T63, L4-5
(kkk)he was asked whether or not the reason he wakes up feeling unrefreshed is because of his alcohol consumption. In response, he replied “No, I don’t think so. I don’t get totally off my face, I just drink enough to help me relax”;[115]
[115]T63, L6-10
(lll)when pressed on whether or not he attributes his waking up feeling unrefreshed solely to the aches and pains he experiences during the night, he replied “Very much so”. He was asked whether or not he attributes this to anything else. In response, he replied “Stress, I guess”;[116]
[116]T63, L11-14
(mmm)prior to the back injury, he tried sleeping tablets, which made him “feel awful”;[117]
[117]T63, L17-21
(nnn)he confirmed that he still goes away on holidays with his family, but “suffer[s] for it”. He said that the last trip he had been on was to Halls Gap with his wife. This was for three nights in late 2024. His wife drove. They stopped twice on the way, and twice on the way back. He did not do any of the driving;[118]
[118]TT63-64
(ooo)the last time that he had been camping would have been in about 2021. He thought this was up to the Murray River. When asked how his back coped with that camping experience, he replied “Not very well. ... I haven’t been camping since.” When asked whether or not he goes camping at all now, he replied “No. ... the bedding is not adequate enough for me”;[119]
[119]T64, L12-22
(ppp)prior to his back injury, he went fishing at least a dozen times per year, with his son, his friends, and a couple of mates. They would usually go out on a mate’s boat, which was bigger than the boat he had. Since the injury, he has sold his boat “Because I wasn’t using it and the thought of just getting it off the boat trailer ... like sitting in the ocean or the bay where the water is constantly [moving] – it just caused me grief”;[120]
[120]T65, L10-24
(qqq)he has not been fishing for about four years. When asked what physically stops him from fishing now, he replied
“Just the fact that I can’t be in a comfortable spot. ... sitting in a boat you’ve got nice hard seats and it’s constantly rocking, moving, and I’ve got to constantly keep adjusting myself. It plays havoc on my back.”
(rrr)it was suggested to him that he would have the capacity while fishing to adjust his posture whenever he wanted to. In response, he replied “Not in a boat. ... like I say, it’s constantly moving. ... and if you’ve got three or four people in your boat then you’re limited for space too.” When asked whether or not being in a boat was less comfortable than sitting in a truck, the plaintiff replied, “Much less”. When asked whether this was due only to the motion of the boat, he replied “Yeah, and the hard seat. And pull starting the engine wasn’t great for me either”;[121]
[121]T66, L3-22
(sss)it was suggested to the plaintiff that he is physically capable of fishing at present. In response, he replied “Yeah, but I’d be in a lot of pain afterwards”;[122]
[122]TT66-67
(ttt)it was suggested to the plaintiff that Dr Menz had recorded being told that the plaintiff had been able to return to fishing and camping. In response, the plaintiff replied:
“Well he said that, not me. ... I don’t recall discussing it with him. I was only in his office for like 10 minutes. … .”[123]
[123] T67, L17-19
(uuu)when asked whether or not he could have said that to Dr Menz, he replied “I doubt it … I could have said anything but I doubt I would have said that because I don’t do it anymore”;[124]
(vvv)when asked whether or not Dr Menz was wrong about that, the plaintiff replied “I’d say so, yeah”;[125]
(www)he was pressed on his physical capacity to undertake certain tasks. In response, the plaintiff replied “I’m capable of doing anything but the repercussions of it is, yeah”;[126]
(xxx)he was asked about his ability to play golf. Prior to suffering his back injury, he played golf about half a dozen times a year, mainly in the summer. He still owns his golf clubs but they are “Gathering dust”. When asked what it is about golf that causes him a problem, he replied “The swing”. When asked when was the last time that he tried to play golf, he thought it was in about 2020. It was put to him that it is possible, given the improvement in his condition, that he might be physically capable of undertaking both fishing and golfing. He replied:
“Well, I’m not prepared to go down that path again.
... because the pain is absolutely excruciating.
... if I start off my day about that point and then it fluctuates during the day and I went out fishing, the next day I’d be cactus and I can’t take time off work, I hate taking time off work because [the employer] no longer pay me weekly instalments. So I’m currently taking time without pay, Your Honour, time off without pay because I’ve used up all my leave with this injury.”[127]
[124] T67, L20-22
[125]T67, L13-23
[126]T67, L24-26
[127]T68, L17-30
(yyy)he confirmed that the medication he has deposed to taking in his affidavits, is accurate;[128]
(zzz)he uses the TENS machine up to three times a week after work and on the weekends as well. When asked how he thinks he would go without using the TENS machine, he replied “I wouldn’t these days”;[129]
(aaaa)he agreed that it is not his mental state or psychiatric condition which interferes with his capacity to work, but rather it is his physical injury. He agreed that it is simply physical pain that leads to his inability to work.[130]
[128]TT69-70
[129]TT70-71
[130]T71, L9-14
26Under re-examination, the plaintiff gave the following relevant evidence:
(a) he no longer uses a skid steer or roller as part of his role as a truck driver. He does not use anything without adequate suspension;[131]
[131]T71, L26-29
(b) in the past when he has attempted to use these pieces of machinery, he has experienced pain because of being rocked around in the vehicle. The pain he experiences is in the middle of his back. He finds that it lasts for a couple of weeks. In the past he has needed to have physiotherapy, taken medication, and needed time off work, because of these incidents;[132]
[132]T72, L3-11
(c) he was asked about his visits to see Ms Cooper, physiotherapist. He explained that he attended Ms Cooper because he was suffering pain in his mid-back. He thought he had seen her up to eight times a year. He said her system was to try to get patients to see how far they could go before coming back for further treatment. He said that initially he would last a week of feeling “not too bad” after her treatment, with minimal pain, but then the pain just increased and increased “and sometimes I didn’t get to the mark where she wanted me to get to, like the five or six weeks, sometimes it was three weeks, and have to go back and see her… .”;[133]
[133]TT72-73
(d) he said that he was paying for the attendances but getting reimbursed for half of that cost by the employer. The employer was aware of his attendances with Ms Cooper, viz:
“They were very aware because ... I got reimbursed for my travel to and from there. And when I did pay I took the receipt and I forwarded that onto … [the employer] and then they’d refund me ... about ... 40 per cent.”[134]
[134]T73, L2-11
(e) he was asked about his attendances on Dr Singh during the period February 2020 until early 2022. It was noted that this period was during the COVID lockdowns in Melbourne. If he saw Dr Singh, he had to wear a mask to go and see him. The preference was that if there was to be any consultation, it would be over the phone. He explained further:
“... [I was] frightened of catching COVID for a start, getting out, because I took three weeks off work due to COVID. ... it was one of those times where everyone was sort of scared and wary ... Going to a doctor’s was a place that you didn’t really want to go … everyone turning up with COVID ... .”[135]
[135]TT73-74
(f) he was asked about what he experiences when he is sitting in his truck for more than 30 minutes. He replied:
“... just starts to ache, my back, in that region. Because although it’s a comfortable truck I’m still getting bounced up and down and side to side ... When I’m driving there’s not much I can do about it. I wait until I get back to the job and then I can jump out of the truck and have a bit of a wander around and then jump back in.”[136]
[136]T75, L2-11
(g) he is concerned that if he lost his current job, he would not be able to find an employer who is as understanding as his current employer. He said that his employer has “made allowances for me” and “I wouldn’t be able to get a job anywhere else …” . When asked what his concerns are based on, he replied, “Well, passing the medical for a start ... would be difficult”. When asked whether this was a prerequisite for any job he would go for, he replied “Yeah. Especially truck driving”;[137]
[137]T75, L12-26
(h) the plaintiff was asked about his attendance on Dr Singh late in 2024 when the employer had sought a certificate about his fitness for work. He explained that he had talked to Dr Singh about the fact that he needed to be certified fully fit, because he had to keep his job. He explained “Yeah, he’s favourable to me in that respect. He knows that I’ve got a mortgage to pay, he knows I’ve got a wife to care for.” When it was clarified that “being favourable” on this occasion meant certifying him fit for work, because he was worried about losing his job, the plaintiff confirmed that this was the case. The plaintiff also said that he had told Dr Singh that the employer was no longer paying him for any time off. He explained:
“So, yeah, he’s sort of probably favourable to me in that respect as to, ‘All right, we’ll keep [you] working, we’ll keep you going, we’ll keep managing this’.”[138]
[138]TT77-78
(i) when asked whether or not it was the case that his aim was to not have any time off work, he said this was true and added “Well, I can’t afford it, Your Honour”;[139]
(j) when asked what level of pain out of 10 he would experience on most days, the plaintiff replied, “Easy a five, easy”. When asked how long this pain usually lasts, the plaintiff replied, “Probably until the end of the day, until I got home to get treatment and use my TENS machine”. When asked how long he uses his TENS machine for, he replied “A couple of hours”. When asked what intensity he would use the TENS machine on, he replied “I have it very intense. ... Probably up to an eight.” The maximum setting is “Ten”;[140]
(k) when asked how well or otherwise he manages to enter and exit his truck with his back injury, he replied:
“Very carefully these days. I used to jump in and jump out and do all the crazy things, but no, I can’t do that anymore. ... because I can throw my back out, which has happened.”[141]
(l) he was taken to a note of a consultation he had with Dr Singh on 7 May 2019 where he reported the workplace injury. He confirmed that the note recorded that he had reported pain in the back. He was asked whether he remembered what sort of pain he was experiencing at that time. In response, he replied that it was sharp pain, “Like someone sticking your knuckle ... into [you] ...”. He was asked to what extent he had experienced that type of pain before. In response, he replied “Never”. He confirmed that the note made reference to rib pain, viz: “It says ‘more paravertebral region and rib region’.” When asked whether he accepted that this is likely to be a note of what he had told Dr Singh at that time, he confirmed that this was the case;[142]
(m) when asked where his pain was when the incident occurred, he gave evidence indicating that it was “in the middle [of his back]…and it radiated out”. He demonstrated the area by running his hand around his back in the rib region;[143]
(n) he was asked about his ability to perform domestic duties such as mowing. He said that if does try to do some mowing, his back starts to ache because of the constant pushing. He thought this would occur after about half-an-hour. He was asked about his inability to perform Whipper-Snippering because of the twisting and turning. He was asked to describe the pain that he experiences if he attempts this activity. In response, he replied “Awful. Terrible. Yeah, ribs, radiating around the ribs, yeah.” When asked how long this pain would last for, he replied “That can last all day”.[144]
[139]T78, L5-8
[140]T79, L1-17
[141]T80, L8-13
[142]TT82-83
[143] T84, L1-9
[144]T85, L1-15
The medical evidence
27There were numerous medical reports contained in the tendered material. Both parties relied upon reports from medico-legal experts. A précis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
28The plaintiff relied upon one report from his general practitioner, Dr Shailesh Singh, dated 30 June 2025. In that report, Dr Singh confirmed that the plaintiff first presented on 7 May 2019 with complaints of mid to lower back pain following an incident on 6 May 2019. The symptoms reported were “severe paravertebral and rib region pain.”[145] A T12 wedge compression fracture was confirmed on CT scan performed on 13 May 2019. An MRI scan performed on 29 May 2019 confirmed an acute fracture. He noted that between 2019 and 2025, the plaintiff had experienced a chronic course of pain with frequent relapses requiring intermittent time off work. The multiple flare-ups had been managed with analgesia, physiotherapy and modified duties. He thought that the plaintiff was suffering from symptoms consistent with chronic back pain and features of chronic Regional Pain Syndrome.[146]
[145]Ex P1, p57
[146] Ex P1, pp57-58
29Dr Singh thought that the injury sustained on 6 May 2019 was directly causative of the plaintiff’s ongoing condition, including the T12 wedge compression fracture, his chronic back pain, the complex pain presentation, and his occupational limitations. He noted that there was no documented prior history of similar significant injury or pain of this nature prior to the workplace event. He said that the plaintiff’s response to treatment has been limited and that the plaintiff’s pain remains “chronic and fluctuating”, with impaired physical functioning and reduced capacity to maintain consistent work attendance. He thought that given the six years of fluctuating symptoms and the limited response to multiple treatment modalities with frequent relapses, the plaintiff’s prognosis was best described as being “guarded”. He thought it likely that the plaintiff would continue to experience intermittent or persistent back pain, reduced physical work capacity, and periodic flare-ups, limiting daily and occupational functioning.[147]
[147]Ex P1, pp57-62
30The plaintiff relied upon one report from Dr Nardine Elzahaby, consultant psychiatrist, dated 15 February 2025. Although that report was supplied in relation to the plaintiff’s paragraph (c) claim, which was ultimately not pursued in this matter, it was included in Exhibit P1, because Dr Elzahaby made observations which were relevant to the plaintiff’s claim under paragraph (a) of the definition of “serious injury”. In particular, Dr Elzahaby noted:
“… Occupationally, while he maintains full-time employment, he requires 1-2 weeks off work 3-4 times yearly during pain flares, and his job security has become precarious due to management concerns about his absences and reduced versatility. Socially, his irritability impacts family relationships, particularly with his wife, for whom he also serves as a caregiver. Recreationally, he has abandoned previously enjoyed activities such as fishing and golf due to physical limitations and reduced motivation. Contributing factors include the physical impact of chronic pain, psychological factors such as perceived loss of control and frustration about interrupted life plans, and social stressors including workplace instability and family responsibilities. ... His prognosis appears guarded, with his conditions likely to persist as the nature of his pain is chronic and irreversible.”[148]
[148]Ex P1, p78
31The plaintiff relied upon one report from Mr Stephen Doig, orthopaedic surgeon, dated 7 April 2025. In that report, Mr Doig diagnosed the plaintiff as suffering from a fracture of T12 of between 25 per cent and 30 per cent. Mr Doig considered that the plaintiff’s ongoing condition was materially caused by the nature of his employment and, in particular, the incident which occurred during his employment on 6 May 2019. He said the treatment that the plaintiff was receiving was appropriate, including doing his own stretches, using a TENS machine and having some physiotherapy. He thought that from time to time, the plaintiff would require further analgesics, if there was a significant problem or flare-up.[149]
[149] Ex P1, p95
32Mr Doig noted that as a consequence of the plaintiff’s spinal injury, he is limited in his social, domestic and recreational activities to a significant extent. He noted that the plaintiff had attempted to return to golf and fishing but “could not do it”. As far as fishing was concerned, he could not sit on his boat, and as a consequence, he sold the boat. As far as golf was concerned, the plaintiff attempted to do it, but the twisting resulted in an exacerbation of his back pain. He noted the following additional matters concerning the plaintiff’s activities of daily living:[150]
(a) he is restricted in his gardening and restricted in working on old cars;
(b) he no longer climbs ladders in order to clean out the gutters;
(c) he can do some of the sweeping, mopping, vacuuming, cooking and cleaning, which he shares with his wife with whom he lives;
(d) it is the plaintiff’s wife who usually does the mowing;
(e) he finds it much more difficult to travel;
(f) he cannot stand for long enough to watch a football match, and can only drive for up to two hours.
[150] Ex P1, p95
33Mr Doig thought that the plaintiff’s incapacity would likely continue into the foreseeable future.[151]
[151]Ex P1, pp94-95
34The plaintiff relied upon three radiological records: the first being the record of a CT scan of the plaintiff’s thoracic spine dated 13 May 2019; the second being an MRI scan of the plaintiff’s thoracic spine dated 23 May 2019, and the third being an MRI scan of the plaintiff’s thoracic spine reported 8 January 2022. Each of those radiological records confirmed the presence of a T12 wedge fracture, as was claimed by the plaintiff. The MRI scan dated 23 May 2019 noted that at that time, the T12 fracture could be described as “Acute wedge compression crush fracture of T12”.[152]
[152]Ex P1, pp54-56
35Lastly, the plaintiff relied upon a clinical note of Dr Singh dated 7 May 2019.[153] In that note, Dr Singh recorded the following matters:
[153]Ex P1, p119
“Presented with pulling tail gate at work … yesterday
reported pain back
more paravertebral region and rib region
reported to work
o/e tenderness back and rib region
Suggested pain relief
discussed risks and benefits
Happy to continue
prefers to go on work cover
cert done
nil other concern.”[154]
(sic)
(emphasis added)
[154]Ex P1, p119
The Defendant’s medical evidence
36The defendant relied upon two reports of Mr Greg Etherington, spine surgeon; the first dated 22 August 2024, and the second dated 15 October 2024. In the first report, Mr Etherington confirmed that the plaintiff had sustained a fracture of the T12 vertebrae but described the injury as “relatively minor”. He noted that the plaintiff had experienced intermittent aches and pains interspersed among more chronic low intensity pain since that time. He noted that the plaintiff continues to experience pain in the lower thoracic region. He said that while the plaintiff has returned to normal truck-driving duties, every now and then he has a flare-up of pain which reduces his activity. He noted that this seemed to be an “established pattern” for his symptoms. He said that while the plaintiff has returned to his normal duties, unfortunately, when the pain flares up, the plaintiff is unable to perform even those activities. Mr Etherington made no mention of the fact that the plaintiff’s role had reduced to merely truck driving rather than operating all the ancillary machinery that he had previously operated.
37In the first report, Mr Etherington noted that the plaintiff’s main problem was persistence of pain, but said that the “source of pain is unclear at present”.[155]
[155]Ex D1, pp4-8
38However, in his second report, Mr Etherington noted that the plaintiff had suffered the thoracic vertebra fracture and that “Follow-up imaging showed this to be healed in a slightly wedged position” and that “The disc at T11/12 however is not normal”.[156] (emphasis added)
[156]Ex D1, pp10-11
39Mr Etherington questioned the wisdom of the plaintiff continuing to undergo physiotherapy. He thought that the plaintiff needed further investigation. He expressed the opinion that the plaintiff’s pain symptoms would generally fluctuate, irrespective of whatever activities he does or does not do, including work.[157]
[157]Ex D1, pp11-12
40The defendant relied upon three reports from Dr Anthony Menz, consultant orthopaedic surgeon: the first dated 11 September 2024, the second dated 18 September 2024, and the third dated 9 June 2025. In the third report, Dr Menz noted the plaintiff’s history of injury and described the incident in which the plaintiff injured his thoracic spine as “possibly [causing] a compression fracture at T12”. Dr Menz noted that the plaintiff continued to have flare-ups, and said that the plaintiff told him that flare-ups are still a regular part of his life. Dr Menz questioned the wisdom of the plaintiff continuing physiotherapy after five years of chronic low-back pain. He thought that the plaintiff needed to engage in core muscle strengthening exercises. He noted that while the plaintiff is able to undertake some cooking, cleaning and washing of clothes, he finds that these activities aggravated him. He noted that prior to the injury, the plaintiff had been a keen fisherman and played golf and used to go camping, none of which he can do now as a result of the back injury. Dr Menz did not detect the presence of any functional component or psychological reaction to his physical condition.[158]
[158]Ex D1, pp25-28
41The defendant relied upon a report of Dr Singh dated 8 January 2025, in which Dr Singh certified the plaintiff fit for full duties. In that report, Dr Singh diagnosed the plaintiff as suffering from “Acute on chronic back pain on a background of T12 wedge [fracture with] complex regional pain syndrome”. Dr Singh stated that the plaintiff was capable of performing his role “as per job description” and that “there is very minimal risk of recurrence …”.[159] The report continued:
“Is David on any medication that may impact his ability to drive or use heavy machinery? If so, please detail the medication and possible side effects
He is not on any opioids or sedative pain relief. He is on non-sedative pain relief and is not at risk of sedation and is suitable to operate heavy machinery
Is there any further information we need to consider relating to David[’s] capacity to return to their role as Heavy Plant Operator?
[159]Ex D1, pp58 and 59
He is currently fit to perform his usual work duties. He has been experiencing chronic nature of illness. He will need ongoing physiotherapy and hydrotherapy to continue to work. His work has been supportive and he would appreciate ongoing support from his work.”[160]
[160]Ex D1, pp59-60
42The defendant relied upon extracts from the medical records of the plaintiff’s general practitioner between December 2021 and November 2024.[161] The relevant extracts from the clinical entries relied upon by the defendant were as follows:
[161]Ex D1, pp52-57
“21/12/2021
...
re; rig[h]t knee
pain ++
discomfort
doing home Reno
up and down
was bad over the weekend
back of knee ok
inner aspect of knee sore ness
using pan[a]dol with no [help]
…
nil other concern
...
22/12/2021
presented with right knee pain and swelling
tenderness ++ on medial aspects
…
26/08/2022
Presented with re work cover
was on 4 m height semi-trailer
fixing few things
fell on to his right side
reported had bru[i]sing etc
was sore for a long time
happen[e]d in 2017
was seen by myother[a]pist
also did gym activities
had pain ++
was using TENS machine
no scan was done
was been to ED
was there for 1 week
re; back pain ongoing
needs cert[ificate]
...
02/09/2022
Presented with review
came for RTW
o/e
SLR- 70 deg
walk on heel – with in normal limits
walk on toes – with in normal limits
bending – with in normal limits - can touch his toes
mild tenderness lower back
squat[t]ing with in normal limits
prefers RTW on normal … [duties]
no lifting at work
no bending at work
reas[s]ured
Suggested to take caution
…
Avoid lifting heavy weight over 5 kg
Avoid movements over the shoulders with arm reaching out
Avoid twisting/ bending movements at lower back
Avoid prolong[ed] standing for 30 mins then do stretching for 10 mins
Avoid prolong[ed] sitting for 30 mins then do stretching for 10 mins
...
16/09/2022
Presented with review
same discussed
was seeing Physio
w[a]s not helping and was self managing
and was using TENS machine
also had accident in 2019
and was affecting him and could not focus in his hip
re; seen by other drs
and was given MRI
was normal
long discussion re; same
needs paper work as well
reas[s]ured ++
re; back pain
ongoing
waiting response from work cover
can[’]t go back to work
reas[s]ured ++
nil other concern
...
10/05/2024
Presented with back pain
was at work
ongoing issues
same discussed
seen by physio
off work since Tuesday
...
15/05/2024
Presented with RTW
Presented with review
came for RTW
o/e
SLR- 70 deg
walk on heel – with in normal limits
walk on toes – with in normal limits
bending – with in normal limits - can touch his toes
mild tenderness lower back
squat[t]ing within normal limits
prefers RTW on normal … [duties]
no lifting at work
no bending at work
...
25/11/2024
Presented with review
came for RTW
o/e
SLR- 70 deg
walk on heel – with in normal limits
walk on toes – with in normal limits
bending – with in normal limits - can touch his toes
mild tenderness lower back
squat[t]ing with in normal limits
prefers RTW on normal … [duties]
no lifting at work
no bending at work.
… .”[162]
(sic)
[162]DCB 52-57
The issues
The Plaintiff’s credit
43The plaintiff’s credit was challenged in relation to numerous issues during cross-examination. In particular, the nature of the plaintiff’s work duties, the extent of the pain which he says arose as a result of the back injury sustained with the employer in 2019, the precise timing of the onset of the type and level of pain from which he presently suffers and the extent of the consequences he suffers in relation to his domestic and recreational activities as a result of his back injury, were all explored in detail during cross-examination. The plaintiff’s evidence in this regard has been set out in detail above.
44One area of particular focus during cross examination, was the plaintiff’s ability to continue performing his work duties, and to undertake activities such as painting his house. As has been set out above, the effect of the plaintiff’s evidence was two-fold in relation to these issues: First, he has modified the way in which he would normally carry out these tasks to accommodate his limitations, and, second, because he needs to do these things and especially to keep his job, he “pushes through” the pain when he experiences it.
45The defendant emphasised the fact that in January this year, Dr Singh had certified the plaintiff as fit for his duties, “as per job description”. Similarly, as can be seen from a sample of the entries in the medical records, Dr Singh recorded on more than one occasion that the plaintiff can walk on his heels and toes, his bending is within normal limits, he can touch his toes and can squat within normal limits. I note that Dr Singh also recorded in these notes, that the plaintiff “prefers RTW on normal duties”.
46The plaintiff’s explanation for Dr Singh’s expressed opinion, is that he told Dr Singh that he needed to keep working, as he is the only breadwinner in the house and also is the carer for his wife. He said that Dr Singh never asked him to walk on his heels or toes, to bend over or to squat. The effect of his evidence about why Dr Singh apparently concluded that he was “fit” for normal duties, with “very minimal risk of recurrence”, was that Dr Singh was aware that the plaintiff was at risk of losing his job, if he was not certified fit. He said that Dr Singh “knows that I’ve got a mortgage to pay, he knows I’ve got a wife to care for” and that Dr Singh is “favourable to me in that respect”. After considering all of the evidence about these matters, I find that the plaintiff’s explanation about these matters accords with the note made by Dr Singh that the plaintiff “preferred” to return to work on normal duties.
47Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was an honest and co-operative witness who appeared to be doing his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and without embellishment. In addition, he made concessions when necessary, many of which were adverse to his own interests.
48Furthermore, I find that the plaintiff’s account of the events which led to his back injury, the level at which his back pain occurred, the nature of it and the consequences of that injury to him, has remained consistent throughout the period in which he has seen his treating medical practitioners, consulted with the medico-legal assessors, and provided evidence to this Court.
49After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the content of the medical reports, I consider that he was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court or to exaggerate his symptoms in any way. Because of this, I have no hesitation in accepting the plaintiff’s explanation for the apparently incongruous assessment made of his work capacity by Dr Singh in January 2025, and the circumstances in which that report was created.
Stoic plaintiff
50Having observed the plaintiff and considered all of the relevant evidence, I have formed the view that the plaintiff has been extremely stoic in relation to his condition and has taken numerous steps to try and continue working and living his life as best he can, despite the pain from which he constantly suffers.
51I find that despite the consequences of the injury to his spine, which he has suffered daily since the incident, he has continued to work as a truck driver, with modifications to ensure that he can keep performing his job, such as no longer using the smaller equipment that does not have adequate suspension. I find that on a recent occasion when he felt his job security might be threatened, he preferred to be certified fit for full duties, rather than to acknowledge his longstanding limitations, since being employed is so important to him because of his need to pay the mortgage and to care for his wife. I find that he has also continued to try to perform his activities of daily living and his recreational activities to the best of his ability, albeit that he has more recently realised that he needs to modify these activities because they tend to cause flare-ups of his pain. I accept the evidence that he gave to the Court that although there are some tasks which do cause him pain, such as sitting in a car or his truck for longer than 30 minutes, on occasion he does this anyway, because of the circumstances he finds himself in – such as being stuck in traffic on the Princes Freeway, or being present on a worksite in a situation where he cannot exit his truck in order to walk around.
Compensable injury
52The details of the occurrence of the incident are not in dispute.
53Having considered all of the evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on both sides, I am satisfied that as a result of his employment with the employer, the plaintiff suffered a fracture to the T11-T12 vertebrae in his thoracic spine. His present diagnosis is said to be T12 wedge fracture.[163]
[163]Ex P1, p59
Is the compensable injury permanent for the purposes of the Act?
54Having considered the relevant reports, and in particular the reports from Dr Singh,[164] Mr Doig,[165] Dr Etherington[166] and Dr Menz,[167] I find that the plaintiff is likely to suffer from the consequences of his thoracic spine injury sustained while working for the employer, for the foreseeable future. Given this, I find that the injury is permanent for the purposes of the Act.
Are the consequences to the Plaintiff of the spinal injury “serious”?
[164]Ex P1, p61
[165]Ex P1, p95
[166] Ex D1, p11
[167]Ex D1, p25
55Having considered all of the evidence, I find that by reason of the plaintiff’s thoracic spinal injury alone, the plaintiff suffers from the following consequences:
(a) he experiences nearly constant thoracolumbar back pain, which fluctuates in intensity. He experiences “flare-ups” of his back pain which have continued intermittently. When these flare-ups occur, he continues to require time off work. The pain in his back worsens with strenuous activity. He tries to avoid repetitive lifting, carrying, bending, twisting and reaching as much as possible;
(b) he takes strong medication on a daily basis, including medical marijuana. He continues to attend a physiotherapist for massage and needling treatments. He also continues to attend his general practitioner as required for prescriptions and certificates of capacity. He has to use a TENS machine at home when the pain increases;
(c) his sleep is interrupted by pain. He is lucky to have more than three hours of continuous sleep without waking due to pain. When he wakes up, he is generally awake for up to one hour before returning to sleep. As a result of his disturbed sleep, he wakes up tired and unrefreshed;
(d) he has difficulty with the housework at home, in particular, cooking, gardening, cleaning, vacuuming and changing beds. He is reliant on a cleaner at home. He used to do a lot of home maintenance but now has to pay someone to do jobs such as cleaning the gutters;
(e) his ability to stand, sit and walk is restricted. His general mobility is restricted and he cannot run. He has to step carefully on rough and uneven surfaces so as not to aggravate the pain in his spine. Getting in and out of low vehicles is painful for him. Prior to the injury, he was unrestricted in these activities;
(f) he experiences restrictions in his ability to drive for long distances. He finds that after around one hour of driving, he is stiff and sore in his back, and the dull aching pain becomes stronger, requiring him to stop and rest;
(g) he can no longer play golf or go out fishing in a boat. He is restricted in his ability to go camping with his family;
(h) his sex life with his wife has been severely affected by his back pain;
(i) after he returned from holidays in January 2022, his back was not able to cope with the work he was doing and he felt a worsening pain in his thoracic spine. It felt like he had cracked a rib and he required a significant time off work as a result of the pain and restriction he was experiencing;
(j) he copes “as best he can” with his work duties, but has to force himself to “push through” the pain he experiences, to a significant degree. He does so because he is reliant on his income due to the circumstances of his wife’s inability to work, both physically and mentally. He is fortunate that his current role does not require him to engage in any significant manual handling;
(k) he is concerned about his employment prospects in the future, given his back injuries and the restrictions that it causes. He had hoped to continue working until the age of sixty-seven. He cannot see a realistic pathway to him obtaining alternative work, given his work history, age, injuries and limitations. He does not feel his employment is secure. He worries a lot that his ability to find work will remain restricted for the rest of his life.
56In Haden Engineering Pty Ltd v McKinnon,[168] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[169] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced will depend upon an assessment of the plaintiff’s credibility.[170]
[168](2010) 31 VR 1
[169]ibid at paragraph [9]
[170]ibid at paragraph [12]
57I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness. I have also found that the plaintiff has been stoic in his approach to managing his injury, particularly in the form of his commitment to treatment, his attempts to return to his usual activities of daily living and his attitude to performing his work duties in a modified manner.
58The fact that the plaintiff has been prepared to keep working since the accident, is not a matter that tells against the granting of his application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[171]
“… it would be unfortunate, and in my view wrongheaded, if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[171][2008] VSCA 260 at paragraph [3]
59As was observed in Hooley v Transport Accident Commission:[172]
“As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd, when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced … All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.”
[172][2019] VSCA 263 at paragraph [51]
60In Kelso v Tatiara Meat Co Pty Ltd,[173] the Court of Appeal observed that:
“… chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain, requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[173]Supra at paragraph [199]
61I have set out above the consequences which the plaintiff’s injury has had on his day-to-day life. I have made findings which support the conclusion that chronic pain in his spine is a prominent feature of the plaintiff’s life, which requires him to take medication on a frequent basis. Furthermore, I have found that his spinal pain affects nearly every aspect of his day-to-day life. By reason of the plaintiff's age, I find that he will continue to suffer from each of the consequences set out above, for a lengthy period of time. This, in turn, means that these consequences are more significant for him than they might be for another, older plaintiff.
62Having regard to this, and by reason of the findings which I have made about the consequences from which the plaintiff suffers as a result of the injury to his thoracic spine, I am satisfied to the requisite standard, that those consequences are fairly described as being “very considerable”.
Conclusion
63In those circumstances, I am satisfied to the requisite standard, that as a consequence of the plaintiff's work with the employer, the plaintiff suffered a “serious injury”, as defined in the Act, in the form of an organic injury to his thoracic spine. The application is granted.
64I will hear the parties in relation to the question of costs.
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