Rabie v Victorian WorkCover Authority
[2025] VCC 767
•17 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-06320
| STEPHEN RABIE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 June 2025 | |
DATE OF JUDGMENT: | 17 June 2025 | |
CASE MAY BE CITED AS: | Rabie v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 767 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Davidson v Transport Accident Commission [2015] VSCA 12; Reyes v Tusk Group Pty Ltd [2025] VSCA 20; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Leave granted to the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Ms C Spitaleri | Zaparas Lawyers |
| For the Defendant | Ms G J Cooper | Wisewould Mahoney |
HER HONOUR:
Introduction
1The plaintiff, Mr Stephen Rabie, is a sixty-four-year-old former garbage collector. He claims that on 17 May 2021, he suffered an injury to his low back whilst performing his work duties for 4Site Australia (“4Site”).
2Mr Rabie seeks leave to issue a common law proceeding for pain and suffering damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). His claim is that he has a “serious injury” of his lumbar spine.
3For leave to be granted, Mr Rabie must establish that the permanent impairment consequences of his compensable spine injury are “serious”; that is, that they can be fairly described as being “more than significant or marked”, and as being “at least very considerable”.
4The Victorian WorkCover Authority (“VWA”), the defendant, accepted Mr Rabie suffered an aggravation injury to his spine in the course of his employment. The primary issue was whether the impairment consequences of that injury satisfied the statutory threshold.
5The relevant legal principles are well known and were not in dispute.
6The issues for determination are:
(a) Was Mr Rabie a reliable witness?
(b) What are the permanent impairment consequences of Mr Rabie’s compensable lumbar spine injury?
(c) Are the permanent impairment consequences of Mr Rabie’s compensable lumbar spine injury “serious”?
7For the reasons that follow, I find that Mr Rabie has satisfied his onus to establish that the permanent impairment consequences of his compensable lumbar spine injury are “serious”.
Background
8The following, I believe, are uncontroversial matters. As far as any were contested, these represent my findings unless otherwise stated.
9Mr Rabie left school after completing Year 11. He undertook a plumbing apprenticeship and then worked as a plumber in his own business for about ten years.
10In 1990, he attended the Australian Maritime College and completed a four-year course. Thereafter he worked at sea, eventually being promoted to Ship’s Captain.
11From 2003, Mr Rabie worked as a marine pilot in Sydney for four years, and then in Western Australia. Mr Rabie ceased that work in 2013. He said in evidence that he was bullied and sacked.
12After 2013, Mr Rabie unsuccessfully applied for other roles as a marine pilot.
13In 2014, Mr Rabie started his own pilotage business, in which he was the managing director. He did not perform marine pilot work. Mr Rabie sold the business in about July 2019. Following this, Mr Rabie unsuccessfully applied for several managerial roles in the maritime industry and two harbourmaster roles.
14Mr Rabie deposed that after selling his business, he intended to go back to the Australian Maritime College and complete the three-week Masters Revalidation course. He hoped to obtain work as a marine pilot or at sea. The Maritime College closed during the COVID-19 pandemic, preventing Mr Rabie from pursuing this.
15Mr Rabie did not work between July 2019 and April 2020.
16Mr Rabie began working for 4Site in April or May 2020 as a part-time garbage collector.
17In November 2020, prior to the incident, Mr Rabie was elected as a councillor on the Mansfield Shire Council.
18In the incident on 17 May 2021, Mr Rabie was attempting to throw bags of rubbish when he slipped and fell on wooden steps.
19Mr Rabie attended his general practitioner (“GP”) later that day complaining of low back and neck pain.
20In November 2021, Mr Rabie attempted to return to work performing modified fire audit duties, but was unable to continue due to increasing back pain. He continued working as a councillor after the incident.
21In November 2023, Mr Rabie was elected Mayor of Mansfield Shire Council, and remains in that role.
22Mr Rabie’s spinal injury has been treated conservatively. He has been referred to an orthopaedic surgeon. He has had physiotherapy, attended a chiropractor, and takes over-the-counter medication. Mr Rabie takes six Panadol Optizorb, six ibuprofen and one Clonac, five days out of seven. He undertakes home stretches and performs yoga.
Was Mr Rabie a reliable witness?
23Counsel for the VWA submitted that there were issues with Mr Rabie’s reliability and the Court ought to be cautious about accepting Mr Rabie’s evidence regarding his restrictions:
(a) Mr Rabie deposed that, absent the compensable injury, he had hoped to return to work as a marine pilot; however, he conceded during cross-examination that he had not worked as a marine pilot since 2013. While operating his own company between 2013 and 2019, he did not perform any marine pilot work. He did not apply for any marine pilot jobs after selling his company in 2019. He accepted that by May 2020, he considered himself to be retired from being a marine pilot. Counsel for the VWA submitted that this was a “pipe dream rather than anything that was based in reality”;[1]
(b) Mr Rabie deposed that the reason he sold 100 acres of his 200-acre farm was because of mortgage stress caused by his inability to work due to the compensable injury. Whereas he agreed during cross-examination that his gross earnings between 1 July 2020 and May 2021 from 4Site were $13,249. Mr Rabie accepted during cross-examination that the primary reason he sold the land was to pay down significant bank loans;
(c) Mr Rabie deposed to experiencing “constant pain” in his affidavit, yet in his oral evidence, he said that on good days he would wake up pain-free.[2] He said that it was highly unusual to have a whole day pain-free;
(d) Mr Rabie deposed that he sold the lambs on his farm, because it was no longer profitable to pay contractors to undertake the animal husbandry required. In cross-examination, Mr Rabie conceded that it was hard to find contractors and that he had been doing most of the farm work himself for the past four years.
[1] Transcript (“T”) 50
[2]T45
24In closing submissions, junior counsel for Mr Rabie submitted that Mr Rabie was a credible, reliable and honest witness who gave evidence without prevarication. The VWA admitted it had surveillance footage of Mr Rabie, but had chosen not to play it. Further, no doctor had suggested that Mr Rabie was exaggerating his symptomatology. In response to the VWA’s specific submissions, junior counsel for Mr Rabie submitted:
(a) Mr Rabie expressed an honest belief in his affidavit regarding his desire to return to work as a marine pilot, “but as he sat in the witness box he realised that that was unlikely”.[3] Between 2019 and 2020, Mr Rabie applied for two harbourmaster roles. He would not be able to perform the sea components of those jobs because he would not pass the necessary medical, and would be physically unable to climb the pilot ladder. Junior counsel submitted that the Court only needs to be satisfied that it was more than merely speculative that Mr Rabie would have gone back to some work involving a sea component;[4]
(b) Mr Rabie’s “evidence was very clear that he suffers from constant pain”.[5] His evidence that “I wake up and I don’t have any pain. That’s a good day” needs to be understood in the context of his evidence as a whole. His pain is not intermittent, and it is not mild;
(c) Mr Rabie readily accepted that there were a number of reasons why he sold 100 acres of his farm, “one single point doesn’t make him unreliable”.[6]
[3]T56
[4]Davidson v Transport Accident Commission [2015] VSCA 12
[5]T57
[6]T58
25At the start of his evidence, Mr Rabie confirmed that he had recently re-read his affidavits. He said the content of each of his affidavits was correct when sworn.
26I find there were matters where Mr Rabie’s oral evidence did not align with his affidavits. There was force in the submissions by counsel for the VWA that Mr Rabie’s assertion that he intended to resume work as a pilot was a pipe dream; his evidence as to the reason for sale of part of his farm was not the whole picture; his complaint of constant pain was not accurate, and the reason for selling the lambs was not wholly due to financial viability given the cost of contractors.
27Leaving aside the issue of pain, the other matters raised might best be described as differences in emphasis, and oversimplification in the affidavits of issues which were more nuanced.
28As to the descriptor of pain, I accept the oral evidence Mr Rabie gave, that on a good day, he will wake up with no pain after having a good night’s sleep. I also accept that it is “highly unusual” for Mr Rabie to have a whole day pain-free.[7] That is frequent and variable pain, but is not accurately described as “constant”.
[7] T58
29In his oral evidence, I found Mr Rabie a straightforward witness who impressed me as a person who was careful to give accurate evidence. He did not prevaricate, and made appropriate concessions.
30Given the above matters, whilst I accept Mr Rabie’s oral evidence, I approach the impairment consequences set out in his affidavits with some caution.
What are the permanent impairment consequences of Mr Rabie’s compensable spine injury?
31Mr Rabie relied upon two affidavits affirmed by him on 12 April 2024 and 12 May 2025. He deposed that:
(a) he suffers constant pain in his lower back which varies in intensity and is worse with activity. The pain sometimes extends into his left leg;
(b) he struggles to sit, stand or walk for prolonged periods. He struggles to lift “much”;
(c) mowing on his ride-on mower causes increased pain the following day. He was unable to undertake animal husbandry work on his farm and had to pay contractors to do it. He had to sell his sheep because of this;
(d) on about four nights a week, his sleep is disturbed and he does not get a full night’s sleep;
(e) he struggles to wash his shins and feet, and put on socks and shoes, because of a reduced capacity to bend;
(f) he is unable to vacuum or mop;
(g) he is no longer a good handyman and tries to avoid ladder work;
(h) chopping firewood aggravates his pain;
(i) he is unable to lift more than two bags of groceries;
(j) driving for more than 40 minutes causes increased pain in his left buttock;
(k) prolonged flying is painful, and he can only fly his light plane when having a “good day”;
(l) intimate relations with his wife have been impacted;
(m) he can no longer ski. Skiing was a “major part” of his life, and he was a level 2 instructor. He can no longer ride horses, which was an activity he previously enjoyed with his foster daughter. He can no longer participate in jet-skiing or sailing;
(n) he has experienced a loss of identity and angry mood;
(o) his weight has increased because of his immobility.
32In cross-examination, Mr Rabie:
(a) accepted that in November 2024, he was re-elected for a second four-year term on the Mansfield Shire Council, and re-appointed as Mayor. As Mayor, he chairs ordinary council meetings. There are eleven standard meetings a year, and four or five additional meetings. The meetings usually last one-and-a-half to two-and-a-half hours. Mr Rabie agreed that he had a perfect attendance record at ordinary council meetings between November 2020 and December 2024. In addition, Mr Rabie chairs a number of committees, involving further meetings. Further, Mr Rabie attends six-hour briefings in preparation for the ordinary council meetings. He is provided with documents by way of briefing for other committees. He attends community events on a regular basis. He visits local residents and deals with email correspondence. Mr Rabie accepted the proposition that his council diary revealed twelve to fifteen scheduled events a month. Mr Rabie agreed that he enjoyed his role as Mayor and is committed to doing the job well. He said, and I accept, that he performs the preparatory work from home. At times, the duties are intense;
(b) agreed that he is a keen private pilot. He bought his own plane in May 2025 for $150,000. Mr Rabie accepted that he flew on twelve days in March 2025, and eleven days in April 2025. It was put to Mr Rabie that, taken with paragraph 66 of his first affidavit,[8] he therefore had twelve “good” days in March 2025, and eleven “good” days in April 2025. Mr Rabie said that he generally gets up early to go flying, and flies for an hour or so. He does not fly for the whole day. He accepted that he only flies if he feels well;
(c) was asked about his stated intention to resume work as a marine pilot but for his work injury. Mr Rabie accepted that he did not seek work as a marine pilot after selling his pilotage business in 2019, but believed there were restrictions in the contract selling the business preventing him from undertaking some work “in the marine world”.[9] He agreed that by May 2020, he considered himself to be in forced retirement as a marine pilot. He could not do that work without further study, and the Maritime College was shut during the COVID-19 pandemic. Mr Rabie agreed that if he revalidated his Master Class 1 Certificate, and passed the AMSA medical examination, he could apply for a job as second mate, chief mate or ship’s master, and/or a role as a trainee marine pilot (because marine pilots are specific to each port). Mr Rabie said there was a lot of money in being a marine pilot, but he would not pass the AMSA medical because of his low back condition. Absent his back condition, Mr Rabie accepted it was highly unlikely that he would have pursued work as a marine pilot after the Maritime College re-opened following the COVID-19 pandemic;[10]
(d) accepted he could drive a tractor on his farm, drive a buggy, and perform some repair work. He stopped chopping wood, and tries not to use the ride-on mower. On a good day, he can use a small chainsaw. Until 2024, he undertook some animal husbandry when his pain allowed. He struggled to get contractors to help. He agreed that he could lift up to 20 kilograms, but said he would “pay for it” the next day;[11]
(e) agreed that he had not seen his chiropractor for about a year as the chiropractor went away. He had recently returned, and Mr Rabie had resumed treatment with him;
(f) denied that his pain is mild and manageable. He said: “I accept that I’m in a lot of pain and if you could live in my body for a day, you would then understand what I’m going through, that’s what I accept.”[12]
[8]Plaintiff’s Amended Court Book (“PCB”) 16
[9]T21
[10]T31
[11] T37
[12]T40
33This is a convenient point to consider the medical evidence tendered by the parties.
Imaging
34Two CT scans and an MRI scan were tendered. These revealed that Mr Rabie has degenerative change in his lumbosacral spine, particularly at the L5-S1 level.
Treating doctors
Dr Ben Weatherhead, GP
35A report was tendered from Dr Weatherhead dated 19 May 2021.
36Dr Weatherhead diagnosed a muscle strain, and referred Mr Rabie for physiotherapy.[13]
[13]PCB 32
Dr Darren Le Brocque, GP
37Five reports were tendered from Dr Le Brocque dated 8 February 2023, 24 November 2023, 13 August 2024 (two reports), and 19 March 2025.
38Dr Le Brocque’s reports set out his diagnoses of Mr Rabie’s injuries, the treatment provided and his work capacity from time to time.
39In his report dated 19 March 2025, Dr Le Brocque relevantly diagnosed chronic lower back pain, with advanced L5-S1 disc degeneration revealed on imaging, consequent upon the workplace incident. He said:[14]
“… The lower back symptoms are pain in the lower back with some sciatic radiation down the L leg at present and it has previously also involved R leg sciatica. … [Mr Rabie] reports he has trouble with prolonged sitting for more [than] around 60 minutes when he has to stop what he’s doing and get up and stretch. He needs to take some painkillers at times. He has also been doing core strengthening and flexibility exercises on a regular daily basis …
…
It has been 3 years since the workplace injury and over this time his symptoms haven’t improved significantly …
…
[14]PCB 39-40
… his residual capacity for consistent reliable and permanent ‘suitable employment’ is very limited due to the nature and symptomatology of the injuries.”
40Dr Le Brocque opined that Mr Rabie was no longer able to snow ski, ride a motorbike, jet ski, waterski, or ride a mountain bike. He noted that he suffered disturbed sleep, and struggled to sit for prolonged periods. His intimate relations with his wife were impacted.
Dr Philip Sheard, orthopaedic surgeon
41A report was tendered from Dr Sheard dated 27 October 2023. Dr Sheard examined Mr Rabie on 8 June 2023 and 20 July 2023.
42At his first consultation with Mr Rabie, Dr Sheard arranged an MRI scan. Upon review on the second occasion, Dr Sheard noted that the MRI scan revealed “almost complete loss of joint space at the bottom disc”.[15] He noted evidence of nerve root irritation as Mr Rabie had a positive sciatic stretch test on the left. Dr Sheard advised non-operative management and referred Mr Rabie to a pain physician.
Medico-legal doctors
[15]PCB 98
Dr John Owen, orthopaedic surgeon
43A report was tendered from Dr Owen dated 25 June 2021. Dr Owen examined Mr Rabie on 23 June 2021.
44Dr Owen noted that a CT scan report showed some degenerative disc changes at L5-S1. On examination, he noted “reasonably good” flexion, and extension was to 30 degrees without gross discomfort. Lateral flexion was uncomfortable to 20 degrees, but rotation was full.
45Dr Owen diagnosed a soft tissue contusion to the lower lumbar spine caused by the incident. He said Mr Rabie was unfit for his pre-injury work at that time.
Dr Ralph Poppenbeek, occupational physician
46A report was tendered from Dr Poppenbeek dated 31 May 2023. Dr Poppenbeek examined Mr Rabie on 25 May 2023.
47Dr Poppenbeek noted that Mr Rabie reported he had not improved in the two years since the incident. He was attending the chiropractor weekly, his GP monthly, and continuing with an exercise program.
48On examination of the lumbar spine, flexion was very limited to about 45 degrees, extension was painful and to only 75 per cent of normal range. Right lateral flexion was full, but left lateral flexion was to half the normal range and associated with pain. There was no abnormality on straight leg raising.
49Dr Poppenbeek diagnosed an aggravation of pre-existing disc and facet joint degenerative disease. Mr Rabie was unfit for his pre-injury duties and hours, but fit for predominantly sedentary work, preferably from a home office, three to four hours a day, three days a week.
Dr Philip Haynes, consultant occupational physician
50Two reports were tendered from Dr Haynes, dated 30 July 2024 and 27 March 2025. Dr Haynes examined Mr Rabie on 24 July 2024 and 25 March 2025.
51In his first report, Dr Haynes opined that:
(a) Mr Rabie’s symptoms were consistent with lower lumbar degenerative change;
(b) he was fit to perform managerial and office-based work duties on a full-time basis where he could sit or stand as required and avoid any heavy lifting, forceful pulling or pushing, and light farming duties.
52When seen on the second occasion, Mr Rabie reported that his low back pain had increased since the previous examination. He reported ongoing low back pain, aggravated by prolonged static standing, sitting or driving.
53Dr Haynes remained of the opinion that Mr Rabie had a capacity for office-based work, upgrading to full-time after a period of work hardening. Given his increased low back pain, Dr Haynes was no longer of the view that he could perform farm work.
Mr Michael Dooley, orthopaedic surgeon
54Three reports were tendered from Mr Dooley, dated 1 August 2024, 27 March 2025 and 3 April 2025. Mr Dooley examined Mr Rabie on 24 July 2025 and 25 March 2025.
55Mr Rabie reported experiencing constant low back pain with intermittent exacerbations.
56On examination on the first occasion, Mr Dooley noted some tenderness to the left low lumbar region. Flexion was to 50 degrees and extension to 15 degrees. Lateral flexion and rotation to the left and right were to 20 degrees. Straight leg raising was to 80 degrees bilaterally. Power, tone and sensation were intact in the lower limbs. Ankle reflexes were symmetrically reduced.
57In his first report, Mr Dooley diagnosed an aggravation of naturally occurring and age-related degenerative disc change at the lumbosacral level. The ongoing low back pain limited his ability in terms of heavy physical activity and impact activity. He opined that Mr Rabie would “continue to note ongoing intermittent low back pain”.[16]
[16] Defendant’s Amended Court Book (“DCB”) 46
58When seen on the second occasion, Mr Rabie reported his low back pain had become slightly more intense. Mr Dooley made similar findings on examination to those in his first report. He expressed similar opinions.
59In his third report, Mr Dooley opined that Mr Rabie had the capacity to work full time where these was no regular heavy physical activity, or activity involving a lot of bending and lifting.
Professor Richard Bittar, neurosurgeon
60A report was tendered from Professor Bittar dated 26 April 2025. Professor Bittar examined Mr Rabie that day.
61Mr Rabie reported suffering:[17]
“1.Constant left-sided lumbosacral back pain radiating to the left buttock and hamstring. This pain varies in character between sharp, dull, aching, and stabbing, with an average severity of 7/10 and a maximum severity of 9/10. It is aggravated by bending, lifting, pushing, pulling, walking for more than 25-30 minutes, sitting for more than 90 minutes, or standing for more than 10 minutes. He can lift up to 20 kg before experiencing exacerbation. The pain is relieved by recumbency, frequent postural changes, gentle exercise, and medications. His intimacy with his wife is nearly absent because of pain.
2. Intermittent left leg pain. This occurs 5-10 times per day and lasts for 4-5 hours each time. His leg pain is sharp, with an average severity of 6/10 and a maximum severity of 8/10. It is aggravated by bending, twisting, lifting, pushing, and pulling. He experiences exacerbation after walking for 25 minutes, sitting for 90 minutes, or standing for 10 minutes. The pain is relieved by medications and gentle exercise.”
[17] PCB 47
62On examination, Professor Bittar found as follows:[18]
“Mr Rabie walked with a non-antalgic gait and non-myopathic gait. There was no foot drop.
Lumbar spine flexion was present without any significant restriction of lumbar spine extension. Flexion was more painful than extension. There was bilateral paravertebral tenderness and muscle spasm, particularly on the left side at the lumbosacral junction.
…
Straight leg raise was normal bilaterally.
Neurological examination did not reveal any evidence of radiculopathy or myelopathy, and there was no abnormal illness behaviour.”
[18]PCB 49
63Professor Bittar opined that Mr Rabie suffered from an aggravation of lumbar spondylosis with lower back pain and referred leg pain related to the incident. He recommended review by a pain specialist. He opined that it was unlikely that spinal surgery would be recommended. The likelihood was that Mr Rabie would “continue to experience significant pain and disability into the foreseeable future”.[19]
[19]PCB 50
64Professor Bittar opined that Mr Rabie had a theoretical capacity to undertake suitable employment, three to four hours a day, three to four days a week, in a sedentary role.
Dr James Crompton, occupational physician
65A report was tendered from Dr Crompton dated 8 May 2025. Dr Crompton examined Mr Rabie on 22 April 2025.
66Dr Crompton noted that Mr Rabie’s lumbar pain:[20]
“… presents in paroxysms and there are periods in which he can reportedly be functional , but other times when he feels debilitated by pain and cannot readily function for himself. States that there is occasional pain radiating to his left leg.”
[20]PCB 58
67On examination of the lumbar spine, Dr Crompton noted non-specific tenderness to palpation in particular at L5-S1 to the left. There was restriction in flexion, extension, lateral rotation and lateral flexion. Gait was symmetrical and normal. Mr Rabie was able to balance on each foot for five seconds with apparent difficulty, perform a moderate depth of squat and walk on his heels and toes. Straight leg raising, femoral nerve stretch testing and slump testing were negative and unremarkable. Dr Crompton summarised his findings as follows:[21]
“… There is evidence for enduring lumbar spondylosis without acute focal neurological abnormality, with moderate function apparent.”
[21]PCB 61
68Dr Crompton diagnosed a transient aggravation of underlying lumbar spondylosis, particularly at L5-S1 and “plausibly a syndrome of chronic pain with central sensitisation”.[22]
[22] PCB 71
69Dr Crompton opined that Mr Rabie was fit for part-time work “at most” with restrictions according to tolerance. He was not fit to work as a marine pilot.
Dr Raf Asaid, orthopaedic surgeon
70Two reports were tendered from Dr Asaid, dated 8 April 2025 and 11 May 2025. Dr Asaid examined Mr Rabie on 8 April 2025.
71On examination, Dr Asaid noted that Mr Rabie walked with a mildly antalgic gait. The range of motion in flexion and extension was reduced and painful. Straight leg raising was limited to 50 degrees on the left and 60 degrees on the right. Neurological examination of the lower limbs was unremarkable.
72Dr Asaid diagnosed an aggravation of lumbar spondylosis as a result of the incident. He opined that Mr Rabie was “likely to be restricted in relation to any physical tasks or activities involving pushing, pulling, lifting, bending and squatting … for the foreseeable future”.[23] Given Mr Rabie was working 16 to 20 hours per week in his role as Mayor, Mr Asaid said that this suggested he had the capacity for suitable part-time employment in line with the above restrictions.
[23]PCB 84
73In his supplementary report dated 11 May 2025, Mr Asaid was asked to address matters relevant to the left shoulder injury Mr Rabie suffered in the incident. That injury and impairment were not pursued in this proceeding. It was not suggested by counsel for the VWA that there was any relevant issue in terms of disentanglement of the impairment consequences of that injury.
Findings
74There was no dispute that that Mr Rabie suffered an aggravation injury to his lumbar spine. Previously asymptomatic degenerative change was rendered symptomatic.
75On the medical evidence, the aggravation injury is permanent in the requisite sense.
Pain
76I find that Mr Rabie suffers from lower back and some left leg pain.
77I find that Mr Rabie’s pain is not constant. It is frequent, and variable. There are days when he wakes up with no pain, but it is highly unusual for him to have a pain-free day.
78I accept that Mr Rabie takes six Panadol Optizorb, six ibuprofen, and one Clonac five days out of seven.
79Mr Rabie attends the chiropractor as needed. I accept his evidence that he discusses his lower back pain with his GP when he sees him. Mr Rabie performs stretches, and home exercises. Mr Rabie limits his activities to avoid exacerbating his pain.
80No other treatment is planned.
Work
81Mr Rabie is able to work as a local councillor and Mayor.
82I accept that Mr Rabie would not be able to work as a marine pilot, as he would likely not pass the necessary medical, and does not have the physical capacity to get on and off ships by ladder. Likewise, I accept that Mr Rabie would not be able to work as a harbourmaster.
83Mr Rabie fairly accepted that given he was sixty-one years of age after the COVID-19 lockdowns ceased, the prospect of him going back to sea was not high; however, I accept that life at sea was very important to him, and to his sense of identity. It offered the prospect of high earnings.
84I accept the submission made by junior counsel for Mr Rabie that he does not need to establish, on the balance of probabilities, that he would have returned to work at sea absent his injury, but simply that the prospect was more than speculative.[24]
[24]Davidson v Transport Accident Commission (supra) at paragraph [30]
85I bear in mind that this is a ‘gateway’ proceeding. In that context, I accept that a return to work at sea was more than merely speculative. The loss of the prospect of doing so is significant to Mr Rabie.[25]
[25]Reyes v Tusk Group Pty Ltd [2025] VSCA 20 at paragraph [47]
Sleep
86I accept Mr Rabie’s evidence that his sleep is disturbed about four nights a week.
Functional tolerances
87I find that Mr Rabie is limited in his ability to push, pull, bend and twist and perform heavy lifting. He struggles to sit or stand for prolonged periods.
Personal care
88I accept that Mr Rabie struggles to wash his shins and feet in the shower and has difficulty putting on socks and shoes.
Intimate relations
89I accept Mr Rabie’s evidence that his intimate relations are impacted. It is difficult to assess this consequence as Mr Rabie deposed to it in a vague manner in his affidavits.
Domestic activities
90Mr Rabie is unable to mop and vacuum. He remains capable of light household tasks, and undertakes some cooking.
91Mr Rabie is no longer able to undertake the full range of tasks required on his farm. I accept that he has had to perform activities such as wood chopping, driving the tractor, and animal husbandry, and that such activities aggravate his pain significantly. He has taken the necessary steps to enable him to cease those activities.
Recreational activities
92Mr Rabie is still able to fly a plane, but only on days when he wakes up without pain and when the risk of thermals is low. He can no longer fly as often or for as long as before he was injured.
93Mr Rabie is unable to ski. He was previously a ski instructor, and whilst there is no evidence as to the frequency with which he skied, I am satisfied, on the basis of the evidence as a whole, that this was an activity that was important to him.
94Mr Rabie is unable to ride a horse or jet ski. There was no evidence as to the frequency with which he did so prior to his injury, so the nature of these losses is difficult to assess.
Are the permanent impairment consequences of Mr Rabie’s compensable spine injury “serious”?
95I am required to consider the range of impairments and impairment consequences and not just those that come before the Court.[26] What has been lost must be considered, as well as what has been retained.
[26]TTB SMS Pty Ltd v Reading [2020] VSCA 203
96Mr Rabie suffers from frequent, variable, lower back and left leg pain requiring a significant amount of over-the-counter medication. He retains the capacity to work part time in his roles as local councillor and Mayor. He is no longer able to work as a marine pilot or at sea. He can undertake his personal care with some restrictions. He can perform lighter domestic and farming activities. He can still drive and has been able to travel. He suffers from regular sleep disturbance, and intimate relations with his wife have been affected. Mr Rabie’s ability to pursue his hobby of flying has been restricted. His can no longer ski or ride horses.
97In making the value judgement required of me, and in considering the various impairment consequences collectively, the factors which tip the balance in favour of a finding that the impairment consequences are very considerable in this case are Mr Rabie’s restricted capacity to work, his regular significant pain, and sleep disturbance. Further, Mr Rabie previously enjoyed a range of active recreational pursuits, many of which are now lost to him. I therefore find that the permanent impairment consequences of Mr Rabie’s spinal condition are “more than significant or marked” and “at least very considerable” when compared with the range of possible impairments, including those which do not come before the Court.
Conclusion
98Mr Rabie is granted leave to bring a common law damages claim seeking pain and suffering damages.
99I will hear the parties on the issue of costs.
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