Niutta v Victorian WorkCover Authority
[2025] VCC 1718
•26 November 2025
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-07391
| LINA NIUTTA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 7 October 2025 | |
DATE OF JUDGMENT: | 26 November 2025 | |
CASE MAY BE CITED AS: | Niutta v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1718 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Right hip impairment – aggravation – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67
Judgment:Leave granted
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr C S O’Sullivan | Maurice Blackburn Lawyers |
| For the Defendant | Mr S A Smith KC with Ms A Bannon | Russell Kennedy |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff during the course of her employment with Mildura Base Public Hospital (“the employer”) on 19 July 2022 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied upon in this application is the right hip.
5Apart from being a “serious injury”, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.[1]
[1] See Humphries and Anor v Poljak [1992] 2 VR 129 at 140-141
9I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Haden Engineering Pty Ltd v McKinnon[3] in reaching my conclusions.
[2] (2005) 14 VR 622
[3] (2010) 31 VR 1 (“Haden”)
11The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
12The main issues in this application were any pre-existing hip condition, also range[4] and, to a lesser extent, disentanglement of the consequences of any back condition.[5]
[4] Transcript (“T”) 5; Petkovski v Galletti [1994] 1 VR 436
[5] Peak Engineering & Anor v McKenzie [2014] VSCA 67 (“Peak Engineering”)
Plaintiff’s evidence
13The plaintiff is presently aged fifty-eight, having been born in 1967. She is married with three adult children and five grandchildren.
14She commenced work with the employer as a food services assistant in about 2018. Her job was to load meals onto trolleys and deliver them to patients. She also did some administrative tasks including taking food orders. She was initially employed on a casual basis before becoming permanent part-time, but often worked extra hours when they were offered.
15The plaintiff felt some back and buttock pain from time to time at work, particularly when pushing around heavy trolleys; however, the pain did not stop her from working. The trolleys were an ongoing problem and the subject of regular complaints at work.
16The trolleys were motorised, big trolleys, about as high as her chin. They were operated by both hands. They held twenty trays, ten hot and ten cold on each side.[6]
[6] T8
17In early 2022, the plaintiff’s low back pain worsened a bit and she had a lumbar MRI scan on 11 May 2022.
18The plaintiff started to experience hip pain after the said date.[7] She denied she had a hip ache before then. She had daily discomfort which started not long after the new trolleys had been introduced, so in about 2020. How she felt “depended on the day of the duties”. She then agreed she had felt pain in her right hip. The discomfort was just an ache in her right hip.[8] “So before the incident (her hip) would be stable. Like, it was just wear and tear. It was just like a discomfort.” She then agreed it was a daily ache.[9]
[7]T17
[8]T18
[9]T19
19On 2 May 2022, the plaintiff saw Dr Brad Murray, general practitioner (“GP”), who noted:
“Lumbar back pain
For months and getting worse
Has had various chiro sessions without improvement
Waking at night
Mainly right side and radiating to groin
Walking with antalgic gait but otherwise exam NAD
Bloods and MRI and review.”
20The pain then in her lower back into her groin was not the same as she felt after the said date.[10] The pain at the time of the incident was not in exactly the same area as she described to Dr Murray during the consultation on 2 May 2022.[11]
[10]T24
[11]T27
21She agreed she had a discomfort radiating into her right groin that had been getting worse for months. The lower back pain into her right groin was causing her to wake at night.[12]
[12]T25
22“Radiating into the groin” was discomfort. It had been discomforting for the last few months, but mainly the back. Pain radiating into her right groin had not been going on for months. It was discomfort, but not radiating pain like into her groin.[13] She went to the doctor for her back mainly. Her groin then was sore. It was discomforting.[14]
[13]T26
[14]T27
23When her orthopaedic surgeon, Mr Brett Jackson, reported in June 2023 that the plaintiff “describes longstanding aching within her right hip which has progressively worsened over many years”, they were his words, not hers. She did not tell him anything about aching getting worse before the incident. She just had discomfort.[15] Whether an ache or discomfort, she did not tell Mr Jackson that it was getting progressively worse over many years.[16]
[15]T20
[16]T21
The incident
24On or about the said date, the plaintiff was delivering meals using a motorised trolley. The trolley suddenly jolted and forced her backwards so she was trapped between it and an office desk (“the incident”).
25The trolley pushed hard into her pelvic area and she immediately felt low back and right groin pain. She reported the trolley malfunction straight away.
26In an incident report form dated 19 July 2022, the plaintiff described how she reversed the Ward 4 trolley and the trolley jumped back in a congested area. She was pushed into the nurses’ station desk, injuring her lower back and stomach.
27In her claim for compensation, the plaintiff described how Trolley 4 jolted her back, which squashed her between an office desk and the trolley while delivering meals to patients.
28In the days after the incident, she had increased pain in the right groin and hip and found it difficult to walk. She kept working, although she was finding it difficult due to her pain.
29She felt different after the incident to when she saw her GP in May 2022. The impact was a lot worse. She had severe pain in her right hip. She had pain from her back to her right hip – “The jolt was so severe it literally knocked the disc that (she) hit into … The impact was that the pain was severe.”[17] She had never felt pain like that before. After the incident, the pain was constant.[18]
[17] T28
[18]T44
Treatment
30On 21 July 2022, the plaintiff started physiotherapy treatment at the Hospital. On 5 August 2022, she had an MRI scan of her right hip.
31On or about 19 October 2022, she tripped on a wheelchair at work, causing her some increased right groin pain. She continued to work.
32She had bilateral hip x-rays on 16 November 2022.
33She became increasingly worried about her ability to keep working. The pain was getting worse.
34On 6 December 2022, she completed a WorkCover Claim Form in relation to the incident. Her claim was accepted. Thereafter, her work duties were changed and she was no longer required to push around the trolleys.
35She was diagnosed with Parkinson’s disease in early 2023, for which she took daily medication.
36The plaintiff saw orthopaedic surgeon, Mr Brett Jackson, in June 2023 after referral from her GP. Mr Jackson recommended she have a right total hip replacement. He suggested it might be quicker for her to have the procedure done through private health rather than wait for WorkCover approval.[19]
[19] By letter dated 25 September 2023, EML rejected payment for a right total hip replacement
37She had a CT scan of her right hip in late June 2023, and on 19 July 2023, Mr Jackson performed a right total hip replacement (“the operation”).
38The operation had helped with some pain.[20]
[20] T29
39After the operation, she had about three months off work and then returned on light duties with no trolley work – and gradually increased to full duties over time.[21] She could have been back on full duties by Christmas 2023.[22]
[21]T34
[22]T35
40As soon as she got back on the trolleys again, she “cannot even explain to how bad the pain got to. (She) just worked with pain.”[23]
[23]T43
41The plaintiff had physiotherapy from Sandy Boulton at Red Cliffs Physiotherapy Centre both before and after the operation. She stopped physiotherapy in February 2024. Sandy then told her she could ease off and just continue to do exercises at home.[24]
[24]T30
42While Sandy had noted three weeks after the operation, on 7 August 2023, “no back pain, and hip discomfort only”, the plaintiff was still tender and sore at that stage.[25]
[25]T32
43It was correct, as Sandy noted on 22 February 2024 – “Feeling much better, stronger, walking upright, straighter.” The plaintiff “had had three months of no work and working with a physiotherapist.”[26]
[26]T33
44As at August 2024,[27] although her pain was much improved since the operation, she lived a much more restricted life and needed to be very careful with what she tried to do. The new hip felt foreign to her in her body and the way it moved just did not feel normal anymore.
[27]First affidavit sworn 16 August 2024
45Her grandchildren were then aged between one and seven. Prior to the incident, she was a very active grandmother. She used to run around with the kids and play on the ground and kick balls with them. She could no longer run at all or jump or kick balls or play basketball. If she got up and down from the ground, she did so very slowly and carefully. She was frustrated she could not be a far more active grandmother.
46Pre incident, the plaintiff used to do a combination of walking and jogging for exercise. She could no longer run because of her hip injury. She still walked a bit for exercise but was slow and careful, rather than the vigorous walking she previously enjoyed for exercise. She had lost fitness because of her hip injury. That frustrated her. She spent much of her life now being careful about what she was doing and avoiding movements and activities that might cause further damage to her hip or low back. Because of her pain and restrictions, she worried about her ability to keep working to retirement age.
47The plaintiff swore a further affidavit on 12 September 2025.
48Since her earlier affidavit, her hip pain has been bothering her more and more. When she manually moved trolleys at work, it caused increased pain in the outside of her right leg around where the hip had been replaced.
49She had recently discussed the increased pain with her GP and he referred her for x-rays of her pelvis and right hip and ultrasound of her right hip, carried out on 5 September 2025.
50She had been told the scans showed a trochanteric bursa. She had also been told she could have a cortisone injection, but she did not want to have one. A similar injection in early 2023 before her operation did not help, and she did not want to put more chemicals into her body.
51She is now no longer doing trolleys, and she is working in the coffee shop. She needs to keep working as they still have a mortgage and she is too young to retire, but she is sick of working in pain. Being in pain at work takes a lot of fun out of a job she had previously loved.
52She had asked her employer to give her a break from handling trolleys at work because she had hip pain.[28]
[28]T6
53These days she needs to sleep with a pillow between her legs to reduce hip pain. She finds it very hard to get comfortable in bed. She is fidgety and restless because of pain and, as a result, her husband usually sleeps on the couch. That makes her feel sad and guilty. It has had a flow-on effect, in that they are less intimate than they used to be. She is walking less because of increased leg pain. That situation is annoying for her.
54She continues to take Madopar for Parkinson’s disease. She sees a neurologist in Melbourne twice a year, who has advised her that condition is currently well under control.
55She still takes Nurofen and Panadol. She has previously used prescription medication, but not so any more, because it did not help her pain, and what she now takes actually does. Not taking prescription medication was not indicative of her pain being very problematic. The over-the-counter medication does help her pain. She takes it every day she goes to work.[29]
[29]T30
56When she works, she takes two Nurofen and two Panadol in the morning. If she needs it, she may take another dose after lunch. She also takes that medication when she is not working because her right hip is still in pain. Over a month she would take it regularly, but not every day, as she is trying not to put too much chemical in her body. She is just sick of overloading it.[30]
[30]T44
57She had only just recently felt the need to go back to the physiotherapist. Her hip had just been sore – extremely painful – and that was when they found a bursa on her hip.[31]
[31]T34
58She went to the physiotherapist after she saw her GP when she was in pain again with her hip. She told her GP she was a bit worried about what was going on, like she was feeling “this constant”.[32] She was pretty sure she would have had had the 5 September 2025 x-ray soon after seeing her GP.[33]
[32]T35
[33]T36
59When asked whether she had gone back to the GP because of a particular incident at work, she said she “could not remember, to be quite honest”. Having been reminded of an incident on 12 August 2025 when a trolley “sort of” fell on her at work, which aggravated and affected her hip, she denied that was what took her back to the GP.[34]
[34]T37
60She went back to her GP in September this year for severe pain in her right hip, brought about by the usage of trolleys, “the wear in the twisting and turning” the Burlodge trolleys.[35]
[35]T42
61Her employer rang her GP, and he provided the 8 September 2025 certificate.[36]
[36]T38
62She was given a return to work plan prepared by Sandy. There has been no continuation of that return to work plan.[37]
[37]T39
63She is meant to be at work, but having the day off because of the Court case. Last week she was working under the return to work plan. Her first job was as a PSA, literally wiping down things. When she told the employer she is not a PSA, she is a food-service attendant, they put her in the coffee shop.[38]
[38]T42
64The employer prefers everything to go through Sandy with her return to work, and Sandy is currently treating the plaintiff again.[39] She has seen her about three times since she saw her GP, and will be seeing her again to talk about the return to work plan.[40]
Lay evidence
[39]T42
[40] T43
Sandro Niutta
65The plaintiff’s husband, Sandro, swore an affidavit on 3 September 2025. He currently works as a forklift driver. They have been married for 38 years.
66The plaintiff has complained of pain in her right hip ever since the incident and that affects almost every aspect of her life: the way she walks, now walking with an altered gait; her ability to sleep, now sleeping with a pillow between her legs.
67She is nowhere near as quick as she used to be around the house and she does simple household tasks much slower and needs to pace herself. He helps where possible.
68She used to be very active, enjoying basketball or kicking a football or soccer ball with the grandchildren. Since her injury, she no longer does those activities.
69Their intimate relationship has also been significantly compromised as a result of her pain and embarrassment at the surgical scarring.
70The right hip injury also affects her ability to tend the veggie garden in the backyard which he now does.
71Their social life has been significantly affected as a result of her hip injury, and they see their friends less frequently. She is self-conscious about being seen walking differently and worries about what she wears as one leg is longer than the other.
Lina Niutta
72The plaintiff’s daughter, Lina, swore an affidavit on 4 September 2025. She is now thirty-five. She sees the plaintiff two or three times a week.
73Since the injury and operation, the plaintiff continues to complain of pain on a regular and frequent basis, although she is not a complaining type of person. She has observed the plaintiff in pain getting on and off a chair.
74The plaintiff really wants to be a fun grandmother but she is unable to play freely with her grandchildren.
75Pre-injury, the plaintiff was super strong, sporty and competitive and, as a family, they often played social basketball, cricket or kicked the footy with the kids. The plaintiff has been significantly impacted in her ability to do these things since the incident.
76The plaintiff’s gait is altered and at times when she stands, she bends her knee to even herself up. She is very restricted in her ability to walk long distances, having previously power walked with her and her sister up to 6 to 8 kilometres. Pre-injury, the plaintiff was much quicker than them.
77The plaintiff is nowhere near as active with her housework and is now slow.
78The plaintiff does not dance at family functions – like a recent family wedding – as she used to.
79While the plaintiff has been diagnosed with Parkinson’s disease, that condition in no way comes close to the impact her hip injury is having on her enjoyment of life, from what she has seen and from what the plaintiff tells her.
Plaintiff’s medical evidence
Treaters
Ontario Medical Clinic – Mildura
80The plaintiff’s GP, Dr Brad Murray, most recently reported on 30 June 2025.
81The plaintiff presented with acute right hip pain after the incident when she was pushing a trolley which accidently reversed and subsequently threw her back against a desk and she was briefly trapped between the trolley and the desk.
82The plaintiff reported immediate right hip pain at that time.
83The plaintiff was seen on 20 July 2022 regarding her hip pain. An MRI scan of her right hip was arranged and she was subsequently referred for an orthopaedic opinion.
84The plaintiff’s diagnosis was a labral tear of the right hip and degenerative changes.
85The plaintiff’s initial treatment was based around physiotherapy. Her symptoms continued to deteriorate despite these measures, so orthopaedic advice was to proceed with a right total hip replacement.
86The plaintiff’s injuries were consistent with the stated cause. She had no hip symptoms or pain prior to the incident. Despite the degenerative changes noted on her MRI, she had not previously presented for consultation in relation to her right hip. Her first presentation with right hip pain was after the incident.
87The plaintiff has an excellent prognosis and has recovered well from her surgery. He did not anticipate any long-term issues regarding her injury or treatment.
Certificates
88Dr Murray provided a certificate on 8 September 2025 with a diagnosis of trochanteric bursitis in the right hip. He advised that the plaintiff’s bursitis is exacerbated when on shifts involving trolley work.
Red Cliffs Physiotherapy Centre – Sandra Boulton
89Ms Boulton reported on 6 June 2025.
90Following an incident at work, the plaintiff suffered right groin pain and aggravation of previous low back pain.
91The plaintiff was first seen on 21 July 2022 and on examination, had signs and symptoms of a right hip labral injury.
92The plaintiff was referred to a GP to arrange an MRI scan. The August 2022 MRI confirmed a torn anterior and superior labral right hip, a paralabral cyst and some partial chondral thinning of the right hip.
93Physiotherapy was directed at reducing load and aggravation of the plaintiff’s right groin pain, progressive exercises, advice and management of her secondary back pain until surgery was eventually arranged. Physiotherapy then progressed to a post-operation rehabilitation protocol until the plaintiff returned to normal duties.
94The acute hip injury was a direct result of sudden force on the plaintiff’s weightbearing right leg. Her injury was aggravated on 19 October 2022 when she tripped forward and all her weight went onto her right leg when she tripped when she was unaware of a patient being pushed in a wheelchair behind a curtain.
95The plaintiff was discharged from physiotherapy on 22 February 2024 and had not required review or further physiotherapy as at June 2025.
96Ms Boulton then signed off on a return to work plan for the plaintiff on 12 September this year.
97It provided for 34.4 hours per week, 7.6 hours per day. The work was to support the café area, not operating a coffee machine but delivering items to the café using prep cart size-trolleys, assisting cleaning in the back area, assisting till operations when needed and refilling any condiments. She was also required to help in the catering department, wiping benches, refilling any condiments, stocking rotation and helping unload a dishwasher – for example, cutlery.
98The plaintiff was certified fit to sit for two to four hours, stand-walk (without Burlodge trolley); however, can use other motorised trolley or smaller prep cart-size trolley, bend-squat, reach above shoulder, lift up to 10 kilograms and move neck.
99That return to work plan was to run until 8 October 2025. Further functional considerations were minimal trolley use.
Mr Brett Jackson, orthopaedic surgeon
100Mr Jackson wrote to the plaintiff’s GP on 28 June 2023, thanking him for referring the plaintiff.
101He noted the plaintiff worked with the employer in the kitchen and described longstanding aching within the right hip which had progressively worsened over many years, noting the incident which further exacerbated the severity of her pain.
102He diagnosed right hip osteoarthritis with increasing pain and stiffness and lumbosacral degenerative changes.
103He discussed with the plaintiff and her husband regarding operative and non-operative management options that could be utilised to help with the right hip osteoarthritis. The plaintiff was becoming progressively deconditioned and the pain was affecting all activities of daily living and she wished for a definitive treatment plan.
104He explained the plaintiff required a total hip replacement, a fully uncemented type as she had good bone stock. She thought this may be covered by WorkCover but this would only be the case if it were proven that there had been many years of heavy lifting which may have contributed to the establishment of osteoarthritis, rather than the recent incident which had caused an exacerbation of the osteoarthritic symptoms.
105He was concerned that any application would be rejected by WorkCover. However, the plaintiff would like to discuss this with her WorkCover liaison officer.
106He explained the risks, benefits and post-operative course, and as the plaintiff had private health insurance, she wished to proceed with the surgery as soon as possible. He had therefore tentatively scheduled surgery at St Vincent’s Hospital pending clearance by the medical physician.
107By letter dated 6 July 2023, Mr Jackson wrote to the case manager at EML requesting approval to undergo the surgery.
108Mr Jackson most recently reported to EML in September 2024.
109The diagnosis was right hip osteoarthritis.
110He noted that the plaintiff had longstanding right hip aching that was tolerable, and she was working in the kitchen at Mildura Base Hospital. She recalled the incident following which right hip pain increased, with difficulty walking and attending to both work and activities of daily living.
111An August 2022 MRI scan of the right hip and x-rays of the pelvis and right hip of November that year demonstrated established right hip joint osteoarthritis with labral tearing, hip effusion and paralabral cyst formation. This was an aggravation of a pre-existing advanced right hip osteoarthritis.
112The trauma from the trolley collision/incident had exacerbated symptoms related to an underlying issue of established right hip osteoarthritis. The injury did not cause that osteoarthritis.
113The plaintiff required and underwent a right total hip replacement in July 2023. She had since returned to function and work duties after physiotherapist led rehabilitation over three months.
Investigations
114Dr Benjamin Power, chiropractor, organised an x‑ray of the lumbosacral spine, pelvis and both hip joints on 4 March 2022. It was reported there was loss of disc space at L3-4, L4-5 and L5-S1, and lower lumbar spine facet joint osteophyte formation. There was an inferior tilt of the left pelvis. The sacroiliac joints and the left hip had an unremarkable appearance. There was early degenerative change involving the left hip joint, with subchondral acetabular sclerosis and narrowing of joint space.
115Dr Murray organised a lumbar spine MRI scan on 11 May 2022, following which it was reported:
“Transitional vertebra designated S1. Narrowing of the L4/5 and L5/S1 discs. Disc bulges at these levels with mild canal stenoses. Far left lateral L5/S1 disc protrusion impinging slightly on the left L5 nerve root as a potential cause for radiculopathy left side. Some marrow oedema of the left L5 and S1 partes interarticularis query stress fracturing or stress reaction but no completed fracture or pars defect at this stage.”
116There was an abdominal and pelvic ultrasound in May 2022.
117Dr Murray arranged an MRI scan of the right hip in August 2022. It was reported there were degenerative changes with cartilaginous loss at the hip, labral tear and paralabral cyst. Small effusion and para-articular extension of effusion.
118Following x-rays of both hips in November 2022, it was reported there was right hip arthropathy.
119There was a CT scan of the right hip in June 2023. It was reported high-grade degenerative changes were noted, with full thickness joint space loss, bone sclerosis, marginal osteophytes and subarticular cystic change, particularly in the acetabulum.
120Most recently, the plaintiff had an x-ray of her pelvis and right hip on 5 September 2025. In terms of the pelvis and right hip, it was reported that alignment was preserved and SI joints and left hip joint preserved. Degenerative changes at the lumbosacral junction.
121On the right hip ultrasound, “THR noted. No effusion. Gluteal attachments preserved. Thickened trochanteric bursa. Cortisone injection could be considered.”
Medico-legal
Dr Graeme Doig, orthopaedic surgeon
122Dr Doig examined the plaintiff on 25 June 2025.
123The plaintiff told him of the incident injury. She advised she had been experiencing lower back problems prior to the incident as a result of pushing the trolley on a daily basis.
124A lumbar MRI scan in May 2022 confirmed an intervertebral disc protrusion at the left L5-S1 level.
125The plaintiff continued working, albeit in discomfort, although suffered an aggravation of the hip complaint when she tripped over a wheelchair which was partially hidden behind a curtain, causing her to stumble and increasing her groin discomfort.
126An initial MRI scan revealed degenerative changes to the hip joint with early osteophyte formation and degenerative labral tearing with a paralabral cyst. X‑rays in November 2022 confirmed degenerative change which deteriorated on a subsequent CT scan in June 2023.
127In view of the plaintiff’s deteriorating symptoms, she was referred to an orthopaedic surgeon, who operated in July 2023, which had improved her overall discomfort.
128The plaintiff had then returned to pre-injury duties, working an average of 60.8 hours a fortnight.
129The plaintiff continued to experience some aching in the lower back, with burning discomfort on the lateral side of her upper thigh around the scar site. She believed there was a degree of limb length discrepancy, such that she had difficulty mobilising on uneven ground and running.
130She was using regular Nurofen and Panadol and occasionally Panadeine. Physiotherapy had finished.
131On examination, the plaintiff walked into the room with no evidence of a limp.
132There was some reduction of lumbar movement. Passive and active movements of the right hip were retained, although caused some discomfort at the extremes on the right side. There were only slight restrictions in movement compared to the left. The muscle groups around the hip were all graded five out of five. Straight leg raising was full.
133The plaintiff could perform a satisfactory squat, although was noticeably weaker on the right side upon returning to an orthostatic attitude. There was noted to be over 2 centimetres of leg lengthening in the right side.
134The plaintiff suffered a soft tissue injury to the right hip joint, with aggravation of degenerative change ultimately requiring total hip replacement surgery. The right leg had been noticeably lengthened following the intervention.
135Unless there was evidence to the contrary, in the absence of any prior or subsequent injuries to the anatomical areas of concern, the plaintiff’s employment appeared to have predisposed her to the above conditions, including her back.
136By reason of her hip injury alone, the plaintiff will have a 10 to 15-kilogram lifting, pushing and pulling restriction with limited bending, twisting and squatting through the right leg. She should avoid repetitive stair, hill and ladder climbing and she is not able to run. She may require breaks from prolonged standing, walking and driving.
137Similar restrictions apply to the plaintiff’s back injury.
138The plaintiff’s prognosis is fairly good, in that she has returned to pre-injury duties and the majority of her activities of daily living. Further surgery is unlikely to be required unless she develops aseptic loosening of hip arthroplasty, which remains to be seen.
139The plaintiff would benefit from the fitting of a shoe raise on the left side in view of the limb length discrepancy, which biomechanically should improve her gait mobility and possibly the back pain. She will continue to use her analgesics on an as required basis in the medium to long term.
Defendant’s evidence
Medical evidence – treaters
Ontario Medical Clinic
140The notes detailed attendances from 24 January 2009 until 3 June 2025.
141On 12 May 2022, the results of the lumbar MRI scan were discussed. Dr Murray reported: “Doesn’t really explain current symptoms which are more right lumbar spine and RIF discomfort. For u/s and review.” There was a request for imaging of the abdomen and pelvic ultrasound.
142On 25 July 2022, an MRI scan of the right hip was requested: “Right groin pain ?hip pathology.”
143On 1 February 2024, Dr Murray certified the plaintiff had a capacity for suitable employment from 2 to 30 January 2024. She was able to complete all duties including Wards 4 and 5, and no other ward shifts. The diagnosis was right hip OA – labral tear.
Dr Benjamin Power, chiropractor
144The plaintiff saw Dr Power on 4 March 2022 for low back pain and on 8 March 2022 for her right hip.
145Dr Power noted the results of an x‑ray of the lumbosacral spine, pelvis and both hip joints on 4 March 2022. No relevant findings were noted regarding the right hip.
Sandra Boulton – Red Cliffs Physiotherapy Centre
146The plaintiff attended Ms Boulton on 21 July 2022.
147Ms Boulton noted:
“Incident at work – trolley bucked & pushed her back into workbench → agg[ravation] ++ LBP & ® groin p[ain].
Back has been really sore last 6/12 – pushing heavy trolleys ++ manoeuvring around equipment corners.
- lots of - massage …
- chiro …
- acupuncture.
19/10/2022 …
… Agg[ravated] by episode when fell f[or]w[ar]d when didn’t know p[atien]t was being pushed in wheelchair behind curtain → tripped forward + … on to ® leg.”
[emphasis in original.]
148Three weeks after the operation, on examination on 7 August 2023, Ms Boulton noted: “No back pain and hip discomfort only. No work 6-8 weeks.”
149At the next attendance on 28 August 2023, six weeks post-operation, Ms Bolton noted: “Generally a bit sore. Walking+++.”
150The plaintiff was back at work on full duties on 19 January 2024, when she saw Ms Boulton.
151At the next attendance on 22 February 2024, Ms Boulton noted the plaintiff was “feeling much better, stronger, walking upright, straighter”.
Incident report – August 2025
152There was a further incident on 12 August 2025 when a trolley tilted at work. The report set out:
“Insert of trolley came out of trolley, staff member attempted to grab and stop the insert tipping
Trolley insert was removed from trolley, was full of dishes, Trolley insert began to tilt, staff member attempted to stop insert from tilting felt pain.”
Overview
153There is no dispute the plaintiff suffered injury to her right hip in the incident on the said date.
154The diagnosis is aggravation of degenerative changes in the right hip and a labral tear of the right hip, confirmed on the August 2022 MRI.[41]
[41]T56
155Mr Jackson considered the trauma from the incident had exacerbated symptoms related to an underlying issue of established right hip osteoarthritis. It was conceded that the incident did not cause it, but it had exacerbated it.[42]
[42]T57
Pre-existing hip condition
156In this case, where there is a pre-existing hip condition, I must consider what the evidence discloses as to the plaintiff’s prior hip condition and determine whether the additional impairment resulting from the incident is serious and permanent.
157In Petkovski v Galletti,[43] the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. … .”
[43] Supra
158While there was some focus on the plaintiff’s pre-incident hip condition in cross-examination, it does not appear there was any significant right hip problem before the said date.
159There was very limited right hip complaint before the incident. While she conceded she had experienced some ache or discomfort in the right hip, the plaintiff was able to work normal duties[44] until the incident. There was not a situation of significantly worsening hip pain, as Mr Jackson reported.
[44]30.8 hours per week
160Dr Power, chiropractor, organised an x-ray of the lumbosacral spine, pelvis and both hip joints on 4 March 2022. The x-ray report did not mention any right hip findings. The plaintiff then saw Dr Power on 8 March 2022, when her right hip was treated. That was the only record of right hip treatment.
161Dr Murray, the plaintiff’s pre-incident GP, thought the plaintiff’s injuries were consistent with the stated cause, there being no hip symptom or pain prior to the incident. Despite degenerative changes noted on the MRI, the plaintiff had not previously presented for consultations in relation to her right hip. Her presentation with hip pain was after the incident.
162Hip surgery was first suggested after the incident in which the plaintiff suffered an aggravation of the pre-existing degeneration.
163Pre incident, the plaintiff was leading a normal, active life. She was working about 30 hours per week in her ward assistant role, a job involving moving heavy trolleys laden with food trays.
164Outside work, the plaintiff was an active fifty-five-year-old woman who enjoyed physical exercise and fitness as confirmed by other family members. She could play vigorously with her young grandchildren.
Credit
165As Maxwell P said in Haden:[45]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[45]at paragraph [12]
166I have no issues with the plaintiff’s credit. She gave her evidence in a credible, reliable and truthful manner.[46]
[46]T56
Pain
167In Haden,[47] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
[47] at paragraph [11]
168The plaintiff acknowledged that her hip pain was much improved since the operation but as at August 2024, she had to be very careful with what she tried to do and she lived a much more restricted life.
169Presently, work causes her increased pain in the outside of her right leg in the area of the operation. There is ongoing aching in the lower back with burning discomfort on the lateral side of her upper thigh around the scar site.[48]
Consequences
[48] Dr Doig’s examination in June 2025
Treatment
170The plaintiff saw physiotherapist, Sandra Boulton, from 21 July 2022 until surgery was arranged in the middle of the following year. Physiotherapy then progressed through a post-operative protocol until discharge in February 2024.
171Otherwise, there was no treatment of significance for eighteen to twenty months between the return to full duties at Christmas 2023 and August this year. The plaintiff resumed physiotherapy in September.
172The plaintiff had a cortisone injection in early 2023 which did not help.[49] S he has recently been offered a similar injection but does not wish to have it because the earlier one did not assist with her hip pain.
[49]Dr Murray 10 January 2023
173The plaintiff underwent a right total hip replacement performed by Mr Jackson on 19 July 2023.
174While the plaintiff has had a good result from this uncomplicated procedure, she remains with a limb length discrepancy with the lengthening of her right leg by 2 centimetres.
175Initially, the plaintiff was prescribed heavier painkillers but now regularly takes over-the-counter medication which she finds more effective. Dr Doig thought she should continue analgesics in the medium to long term.[50]
[50]T58
176There is no suggestion that the plaintiff needs any surgery into the future. No doctor comments on a progressive deterioration or worsening over time.[51]
[51]T53
Work
177Despite successful surgery, the plaintiff has continued to have issues with her hip at work.
178As at August 2024,[52] she had ongoing pain and restriction, such that she was worried about her ability to continue working until retirement age.
[52]First affidavit
179There was then an incident in August 2025 when a trolley tilted and caused an increase in her hip pain in the operation site. She recently deposed that she had then asked the employer to give her a break from handling trolleys at work and was waiting to hear from them about it.
180In re-examination, the plaintiff described pretty severe hip pain when going back to working with the trolleys.
181The recent incident shows an ongoing vulnerability to flare ups of hip pain. The plaintiff is not a lady who is functioning pain free without activity-related restrictions. The situation is to the contrary, with continuing pain and a vulnerability that will continue while she is working.[53] Recent treatment is indicative of that ongoing vulnerability and flare-ups which will impact on her capacity to work.[54]
[53]T60
[54]T61
Other consequences
182Pre incident the plaintiff was fit and active. This situation has changed very significantly since the incident. She now has to be very careful with all her movements and avoid certain activities. It has not been a “pretty rosy picture” of hip function since surgery.[55]
[55]T54 – defendant’s submissions
183The plaintiff can no longer run and, at times, walks with an altered gait.
184She cannot engage in vigorous walking, power walk or go on long walks up to 6 to 8 kilometres with her daughters.
185She is restricted in her ability to play with her grandchildren, having been a ”fun” grandmother who previously enjoying playing basketball or kicking a ball with them.
186Her social life with her husband has been significantly affected as a result of her hip injury and they see their friends less frequently. She no longer dances at family functions. She is self-conscious about being seen walking differently and worries about what she wears as one leg is longer than the other. Their intimate life has also been affected.
187The plaintiff is unable to tend to her veggie garden as she did pre incident.
188The plaintiff continues to have difficulty sleeping because of hip pain and has to sleep with a pillow between her legs.
189The plaintiff’s various complaints have been corroborated by family members.[56]
[56]T60
The back
190In Peak Engineering, Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
191In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[57]
[57] Peak Engineering at paragraph [1]
192The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the non compensable injury; and
(b) when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[58]
[58] Peak Engineering at paragraph [2]
193Although the plaintiff has had longstanding issues with her back, she has made no mention in her affidavits or complaint to doctors of any significant current back pain. She has had no treatment for her back since the incident.
194While Dr Doig imposed some restrictions on the plaintiff’s ability to do heavy work because of her back condition, he thought these restrictions were also appropriate for her hip pain alone.
195Taking into account all the evidence, I am satisfied that the consequences of the right hip impairment are “serious”. As the plaintiff has continued to experience hip pain and restriction for more than two years despite surgery, this impairment is permanent.
196Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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