Reyes v Tusk Group Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0076

REM DELOS REYES	Applicant
v
TUSK GROUP PTY LTD	Respondent

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JUDGES:	Beach JA, Forbes and J Forrest AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2025
DATE OF JUDGMENT:	28 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 20
JUDGMENT APPEALED FROM:	[2024] VCC 725 (Judge Magee)

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ACCIDENT COMPENSATION – Workplace accident – Serious injury – Application for leave to commence common law proceeding – Lower back injury – Pain and suffering consequences – Whether on a proper evaluation of the impairment consequences as found and as identified by the whole of the evidence, the judge erred in finding that the applicant’s spinal injury did not satisfy the statutory test – Application for leave to appeal granted – Appeal allowed.

Workplace Injury Rehabilitation and Compensation Act 2013, ss 325(2)(c), 328(2).

Ellis Management Pty Ltd v Taylor [2013] VSCA 326, applied.

Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, referred to.

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Counsel
Applicant:		Mr TP Tobin SC with Ms SC Bailey
Respondent:		Mr SE Gladman KC with Mr R Kumar
Solicitors
Applicant:	Ryan Carlisle Thomas
Respondent:	Minter Ellison

BEACH JA
FORBES AJA
J FORREST AJA:

Rem Delos Reyes (the applicant) sustained a back injury on 13 August 2019 while employed by Tusk Group Pty Ltd (the respondent). His WorkCover claim was accepted. By originating motion filed 11 September 2023 in the County Court, the applicant sought leave pursuant to s 328(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 to commence a claim for damages in respect of his injuries.
Although initially seeking leave in respect of impairment consequences of both pain and suffering, and loss of earning capacity, at the hearing of the application, the applicant only sought leave on the basis of impairment of the function of his spine in respect of pain and suffering consequences.
The application was heard before her Honour Judge Magee on 24 April 2024. The applicant tendered two affidavits by way of evidence-in-chief and was cross-examined and re-examined. He was the only lay witness and the only witness to give oral evidence. The remainder of the evidence constituted medical reports including radiological and operation reports.
There was no issue that the applicant had sustained compensable injury to his lumbar spine that continued to be productive of consequences. Nor did the respondent submit in closing that the applicant’s evidence as to his consequences ought not be accepted. The sole issue as identified by the parties was whether those consequences met the threshold test of ‘at least very considerable’.[1] The shorthand used at trial, described the sole issue as one of ‘range’.[2]
[1]Workplace Injury Rehabilitation and Compensation Act (2013), s 325(2)(c).
[2]Delos Reyes v Tusk Group Pty Ltd [2024] VCC 725, [13] (‘Reasons’).
On 31 May 2024, her Honour determined that the application failed and published reasons.[3] Her Honour found the applicant to be an ‘honest witness’ and accepted ‘with some confidence what [he] has said to doctors and to the Court about his ongoing consequences and restrictions’.[4] However, the judge was not satisfied that the applicant had satisfied the statutory test of establishing that the impairment consequences of his back injury were ‘more than significant or marked, and as being at least very considerable’.[5]
[3]Ibid.
[4]Ibid [38].
[5]Workplace Injury Rehabilitation and Compensation Act (2013), s 325(2)(c).
The applicant initially sought leave to appeal on three proposed grounds. At the hearing, however, only one ground (proposed ground 3) was relied on – namely, that on a proper evaluation of the impairment consequences as found and as identified by the whole of the evidence, the statutory test is met – contrary to the conclusion of the judge.

The applicant’s background and evidence

The applicant was born on 25 August 1976 and at the time of the subject injury he was about to turn 43 years old. He came to Australia from the Philippines at age nine and completed high school here. He is a married man with two teenage sons. He has trade qualifications in commercial cookery and prior to this injury had worked variously as a chef, forklift driver, machine operator, warehouse worker, and factory worker.
At the time of injury, he was employed by a labour hire company working as a machine operator/forklift driver on a full-time casual basis with a host employer. His regular shifts were 12 hours in duration. He commenced this employment in early 2019. On the day of the injury on 13 August 2019, the applicant asserted that he was injured when he was directed to change a die on an extruder machine and whilst undertaking that task he experienced a strange sensation in his back which developed into significant back pain.
After the injury, he had approximately a week off work before returning, ostensibly to light duties. The applicant said the duties were not light and he ceased work again. The respondent then placed him with a different host employer recycling eWaste. He performed that role between March 2020 and May 2021 at which time the availability of work dried up. In November 2022, the applicant obtained casual work with Australia Post as a forklift truck driver on a full-time basis. The work ended at the beginning of January 2023 when he received a sentence of incarceration of one month and a community correction order. This was unrelated to his employment.
An intervention order precluded him from living in the family home on release, but by the trial, he had reconciled with his family and was again in the family home. The community correction order required him to perform 250 hours of unpaid work. This involved fixing second-hand bicycles and sewing shopping bags out of recycled curtains, bedsheets and other materials. He undertook that activity two full days per week and was not permitted to do a greater amount of weekly hours. He said the community correction order impacted upon his ability to get paid work. He completed the hours of unpaid work required by the community correction order approximately six weeks prior to the trial.
In January 2024, the applicant sustained a laceration injury to a finger when it was caught in a folding chair. This required stitches under sedation at Sunshine Hospital, and took about one and a half months to heal. He said this injury impacted his ability to take up paid work and continue the community corrections commitments for a short time. He did not describe the finger injury as impacting on his ability to find employment by the time of trial.
The applicant’s first affidavit described constant lower back pain with regular flare ups. His second affidavit also described constant pain. He described the pain as worse with physical activity and flaring up when he overdid things. In his viva voce evidence, he described his pain as having ‘plateaued out’, meaning it had ‘gone down in severity from the time of the incident’, but that it was still present.
The applicant’s first affidavit lists seventeen postures and activities that generally cause him difficulty. The applicant identified recreational and domestic activities including sleeping, using stairs, intimate relationships, running, gardening, lawn mowing, playing basketball, fixing cars, mountain bike riding, driving for long periods, and family relationships. The affidavit largely did not elaborate on the extent of his difficulties. Generally, the applicant deposed:
I try to keep active and move, to avoid seizing up. I also try to move, in order to strengthen my body. Having said that, when I am active, I usually pay for it with increased pain. I find it hard to cope with my pain and restriction. I often feel frustrated, anxious and depressed. I hate not being able to work. Even though I experienced some back pain in the past, it was never as severe, limiting or consistent as it is now.
The applicant described medical treatment received for his injury. This included initial attendances for physiotherapy and on a general practitioner, both as arranged by his employer and his own regular doctor in the days and months following the incident. Later, the applicant was referred to Dr Richard Sullivan, an anaesthetist and pain specialist, who (with others at the Precision Brain, Spine and Pain Clinic) treated his lower back between March and November 2020. The applicant underwent three procedures (two of which were performed by Dr Sullivan) to address pain levels:
(a)A right transforaminal epidural injection on 1 July 2020;
(b)Right lumbar medial branch nerve blocks, right sacral lateral branch nerve blocks, and a right sacroiliac joint injection on 8 July 2020; and
(c)Right lumbar medial branch nerve pulsed radiofrequency treatment, right sacral lateral branch nerve pulsed radiofrequency treatment, and a right sacroiliac joint local anaesthetic and steroid injection.
At the time of the first affidavit in April 2023, the applicant was seeing his own general practitioner and taking Voltaren as needed. He did not describe the frequency of GP visits but described Voltaren as being needed ‘regularly’. He was at that time trying to access further treatment including a gym membership. In his second affidavit in March 2024, he described his current treatment as using a massage gun, regular gym attendance to do an exercise program prescribed by his physiotherapist, undertaking stretching and swimming, and using Voltaren. He avoids use of the latter as much as possible.
The applicant deposed to the work he had undertaken since injury. He described experiencing pain performing aspects of the eWaste job throughout the time he worked there. As to the Australia Post job, in viva voce evidence he said that involved driving trucks and forklifts, doing pre-checks, communicating with managers and refuelling. He added that the loading work had minimal physical activity as lifting was all done by forklift. He managed in that job for a short period of time between late November 2022 and the end of the same year.
He said he undertook retraining by obtaining tickets to operate an excavator and front-end loader, a white card, a rail industry worker card, and a heavy rigid truck licence. In his second affidavit, he said he was presently looking for employment but this was difficult because of the condition of his back and the pain he continues to suffer. No other impediment to work was identified at the time of trial.
In his viva voce evidence, he described his experience of the eWaste work, where he was required to work five days per week for four hours per day. He had some difficulty with a particular task — lifting large and sometimes heavy items from racks for disassembling. Implicit in this evidence was that the applicant was working in that job under ongoing medical restrictions, given his entitlements to weekly payments for an ongoing partial incapacity at that time.
Since his release from prison, the applicant has been registered for work and has applied for a variety of jobs that match his qualifications. The community corrections work was suited to his medical certification. He accepted he could do many of the types of jobs he was applying for generally, depending on the actual requirements. He thought, despite the medical certification of lifting limits, that he could ‘probably lift a little bit more than 10 kilos’. He agreed in cross-examination that he was keen to get back to work and that he had been, and was currently, looking for work. He lost an opportunity to take up truck driving work at the time of his finger injury because of that injury. He said the forklift and truck driving work were not of particular interest to him, but were work ‘due to his qualifications’.
Apart from issues relating to his employment, the applicant was briefly cross-examined about his limitations on fixing cars. He said he does this less than before and primarily focuses on the ‘lighter side of fixing cars like painting’ or changing oil. He was asked about the light renovations around the house that he performed and about the distance and regularity of his walking. He said he did light jogs as part of his exercise routine, agreeing he walks nearly every day and jogs about 2km. He said he could undertake most domestic chores. While being cross-examined, he was observed to stand up in the witness box having been told by her Honour that he could sit or stand as he wished.
As to his current experience of pain, he was asked if it has reduced in intensity. The pain at the time of the accident was described to Dr Sullivan as of sudden onset, which then, continued to increase over the course of the day ‘and by that evening he was scarcely able to move when he went home’. Dr Sullivan described the applicant’s pain as having plateaued, or gone down in severity since the time of the incident.
The applicant agreed he had attended a few football matches and a rugby match, and had taken his family to Warrnambool or Port Fairy, a three hour drive from his home. He estimated his driving tolerance comfortably at about 120 minutes. He described his current mountain bike riding as occurring rarely, around the neighbourhood, and for exercise only.

The medical evidence

Radiological investigations demonstrated an anterior spondylolisthesis at L5/S1 secondary to L5 pars defects and degenerative changes including disc protrusions without evidence of nerve root impingement. Past episodes of back pain were not said to be relevant to the current continuing symptoms.
In light of the radiological findings, Dr Sullivan recommended the epidural injection and nerve block interventions. On the basis of an initial positive response to these procedures, Dr Sullivan recommended radiofrequency treatment. This occurred but had not produced further significant improvement by the time of Dr Sullivan’s last consultation in November 2020.
The applicant’s general practitioner, Dr Jay Hewa, in September 2022 expressed views including that:
He is happy to work and I have always certified him as suitable for a suitable duty with in [sic] his abilities.
…
Despite analgesics anti-inflammatory medications and physiotherapy his pain persists.
…
No active treatment plan presently. He will be [sic] benefit from core strengthening physio program.
A further report in February 2024 confirmed the applicant was still unable to perform unrestricted pre-injury duties, but was suitable for many alternative duties, described him as being back to leading a ‘normal marital life attending to domestic duties, driving the car etc’ and that as to recreational activities certain sports may be limited if strenuous due to lumbar discomfort.
A report of a treating physiotherapist, James Usher, attached a treatment plan prepared in February 2021 however noted that due to financial reasons the applicant was not able to commit to a full spinal program and instead completed four sessions for a four week period, then continued with independent training and did not attend a follow up appointment. The report stated that the applicant had experienced ‘7/10 pain the low back particularly with pushing, pulling and prolonged bending movement’. Mr Usher noted that on assessment the applicant would be unsuitable for full-time or part-time employment from when he was last seen, with his lumbar extensor strength test stating his strength is less than 1%, however if he continued with his gym/swim membership and there was improvement in his lumbar extensor muscle strength, he could be suitable for full-time employment.
Dr Sullivan’s report outlined the position at the time of his last treatment in November 2020. He noted that the restricted work the applicant was doing at that time was not always observant of the medical restrictions. He described his patient as having chronic pain aggravated by excessive activity and through movements such as bending or extending his spine, lifting and carrying loads greater than 5kg and standing or walking for periods exceeding 20 to 30 minutes. Exceeding the recommended restriction would cause exacerbation of pain. At that time, the medical examination noted aggravation of pain both on flexion and extension, pronounced muscular spasm, and positive straight leg raising.[6]
[6]In the opinion of Dr Kossmann.
Medicolegal reports were tendered by the applicant from:
(a)Mr Thomas Kossmann, orthopaedic surgeon, dated 28 July 2022 which recorded a history of throbbing pain, with flare ups intermittently depending on activity, symptoms worse in the cold and difficulty sleeping when suffering from flare ups. His report detailed a table of daily activities in which almost all activities relevant to the spine were identified as causing difficulty.
(b)Mr Graham Doig, general orthopaedics and trauma, dated 31 January 2024 which recorded a complaint of ‘constant right sided lower back pain with intermittent flare-ups’ and noted him to be asymptomatic in the lower limbs. He noted the applicant’s use of Voltaren to control back pain and undertaking a self-managed exercise program including light gym and swimming —treatment modalities are described as appropriate. The doctor recorded the applicant had difficulty with heavier tasks around the home, although he was able to mow lawns and enjoyed fishing. The applicant described not having returned to playing basketball and being restricted in his car and motorbike restoration.
Medicolegal reports were tendered by the respondent from:
(a)Dr David Fitzgerald, consultant occupational physician, dated 2 January 2020 and 3 June 2020 which described a constant, low grade tight sensation in the applicant’s low back, morning stiffness, and a variable level of symptomology depending on the previous day’s activities. The applicant’s social history of basketball with his sons and mountain biking was recorded. By the second report, recurrent symptoms had led to a transfer of worksite and duties. Between reports a number of re-aggravations of back pain in the context of his work duties were described. The applicant described constant discomfort exacerbated by heavier activity and typically worse at the end of the day. As at June 2020 he was taking Voltaren and Norflex. Dr Fitzgerald supported the medical interventions proposed by Dr Sullivan.
(b)Dr Philip Mutton, consultant occupational physician, dated 17 February 2022 which recorded the applicant having a past history of being ‘very active and playing basketball, skateboarding and generally outdoor activities’. He described ‘midline lower back pain extending left and right’ but no longer with lower limb symptoms or radiation and pain as having plateaued in recent times. Voltaren was prescribed on an as needs basis and otherwise a home exercise program after physiotherapy. The applicant’s sleep is described as variably interrupted and home activities of daily living were independent. Clinical findings were normal.
(c)Dr Clayton Thomas, consultant in rehabilitation and pain medicine, dated 17 May 2022 which recorded that the applicant described lower back pain, centre to the left constantly present 6/10 on a good day, worsened if aggravated such as by standing for long hours. Limitation on activities were described only as anything too strenuous involving bending his back ‘aggravated his pain’. On examination, he had good general mobility with lumbosacral movements 60-70% of normal. Returning to work was said to be his biggest challenge.
(d)Mr Michael Dooley, orthopaedic surgeon, dated 6 July 2023 and 11 February 2024 which recorded that the applicant described lower intermittent low back pain worse in cold weather and with heavy activity and that he exercises, attends gym, takes Voltaren when pain is aggravated and at times attends a sauna. From an orthopaedic view, general activity and low impact exercise was said to be important as is the need to modify heavy bending, lifting and manoeuvring activity. In the second report, ongoing back pain was described by the applicant as constant and the constancy affects mood and at times makes him irritable with family.

As to the medical evidence, the judge noted:
Whilst there were differences of opinion as to the nature of the back injury sustained, all the doctors in this application accepted that Mr Delos Reyes sustained a back injury on 13 August 2019 in the course of his employment.
In relation to work capacity, there was a consensus of medical opinion that Mr Delos Reyes was fit for full-time alternative work.[7]
[7]Reasons, [43]–[44].
Her Honour rejected Dr Mutton’s opinion as to work capacity. He was the only medical practitioner who expressed a qualified view that the applicant was fit for full-time pre-injury duties.[8] Her Honour found that that full-time capacity for work did not include ‘pre-injury duties or any heavy labouring duties’.[9]
[8]Ibid [45]–[47].
[9]Ibid [70], [74].

The judge’s reasons

After introductory comments the judge identified that the only issue in dispute was whether the consequences met the statutory definition. As we have said, her Honour found the applicant to be an honest witness and accepted what he had said about his consequences with some confidence.
In approaching her evaluation of the consequences, her Honour identified the requirement to consider the significance of what has been lost by information about what has been retained [10] and to consider the consequences by reference to what the applicant says and does about the claimed impairments.[11]
[10]Ibid [49] citing Haden Engineering Pty Ltd v McKinnon (2010) 3 VR 1.
[11]Ibid.
The judge noted that the affidavits are ‘generic and lack detail’.[12] Despite this, she then considered each of the claimed impairments of pain, sleep, activities of daily living, relationships, treatment, and work before summarising the submissions of each party ‘on range’.[13] She then set out her findings and ultimate conclusion at paragraphs [78] to [94].
[12]Reasons, [51].
[13]Ibid [48]–[77].
Although the applicant no longer relies on Ground 1, some specific matters were raised by the parties as to the correctness of the ultimate decision. The judge’s reasons (including her ultimate conclusion) were as follows:
(a)Sleep disruption
Mr Delos Reyes says he often wakes at night due to pain – when he wakes, he sometimes stays awake for an hour or more before he can go back to sleep. He says it is hard to get to sleep at night. There is no evidence as to how often Mr Delos Reyes suffers from this sleep disruption.[14]
[14]Ibid [54].
(b)Work
I prefer the opinions of Mr Kossman [sic]… Dr Doig … Dr Fitzgerald, Dr Thomas … and Mr Dooley… I find that Mr Delos Reyes is not capable of returning to his pre-injury duties or any heavy labouring duties as a result of the work injury.[15]
[15]Ibid [74].
(c)Reason for not working currently
I accept that Mr Delos Reyes has the capacity to undertake alternative duties on a full-time basis. He is not currently working due to matters which are unrelated to the work injury.[16]
(d)Loss of enjoyment of work
Mr Delos Reyes has not said that he particularly enjoyed heavy manual work or that he has lost a career. There is no evidence that he has been frustrated by having to retrain and find alternate work or that he misses the companionship of his co-workers. These features distinguish the current case from Taylor.[17]
(e)Ultimate conclusion
I find that the impairment consequences of the work injury might be considered by Mr Delos Reyes to be significant, but in undertaking the value judgment required of me, and bearing in mind the whole of the evidence, I am not persuaded that the impairment consequences, when judged in comparison with other cases, could be fairly described as being more than significant or marked and as being at least very considerable.[18]
[16]Ibid [75].
[17]Ibid [89] referring to Ellis Management Pty Ltd v Taylor [2013] VSCA 326.
[18]Reasons, [93].
Her Honour described the claim as ‘a borderline case’.[19] Prior to her ultimate conclusion, her reasoning was:
[19]Ibid [90].
The following factors weigh in favour of a finding that this is a ‘serious injury’
•restrictions in the range of available work opportunities thus limiting the type of manual work which Mr Delos Reyes can undertake;
•constant pain of variable intensity.
The following factors weigh against a finding that this is a ‘serious injury’:
•he was able to return to full-time alternative employment;
•the generic nature of the affidavit material;
•the lack of precision in relation to the frequency of his medication may reflect the variable nature of the pain experienced by Mr Delos Reyes.[20]
[20]Ibid [91]–[92].

Submissions on appeal

The applicant accepted that the affidavits of the applicant were limited in their description of the consequences, and that her Honour’s description of them as generic and lacking in detail was justified. Nevertheless, it was submitted that consideration of all identified consequences on the whole of the evidence was necessary. It was emphasised that the histories contained within the medical reports (which the judge had specifically found as being reliable) supplemented what had been sworn in the affidavits. In particular, the applicant submitted that:
(a)The whole of the evidence supported an impairment of capacity for heavy work. The most generous medical opinion as to his residual capacity limited manual handling to weights below 10kg, together with some postural limitations.[21] This precluded not just his pre-employment work and heavy labouring duties, but a wider range of occupations. The breadth of occupations now closed to the applicant occasioned restrictive consequences for him.
(b)As to the pain and suffering consequences of a restricted capacity for certain types of work, the applicant submitted that there was evidence of frustration at not working, and that this was a consequence to be taken into account. Ellis Management Services Pty Ltd v Taylor[22] was not distinguishable and the applicant’s frustration at not being able to work as he used to was a relevant factor.
(c)The applicant deposed to experiencing constant pain worsening at times including upon increased activity. The extent of the evidence as to frequency of medication was the applicant’s own description that he took it ‘regularly’. The applicant was not challenged that the use of medication on an as needs basis reflected pain of limited magnitude. The absence of any further evidence as to frequency was not a basis to find that the use of medication, and its reflection on levels of pain mitigated against a finding of serious injury.
(d)Sleep disturbance, identified by her Honour and limited by a bare description of occurring ‘often’, remained a relevant consequences to be given appropriate weight. Other social and recreational consequences were not mentioned in the ultimate analysis of factors for and against a finding of serious injury.
[21]Based upon the opinions of Dr Doig and Dr Thomas.
[22][2013] VSCA 326 (‘Ellis’).
The respondent submitted that on the limited evidence the judge was correct to conclude that the threshold of ‘very considerable’ was not reached. As to the specific findings, whatever might be gleaned from a description of ‘often’, the sleep disturbance was not of sufficient severity to seek treatment or affect other aspects of his life. Marital difficulties were identified at a time when the applicant was not living at home for unrelated reasons, and was not mentioned following the marital reconciliation. The prospect or risk of future surgery for a subsequent deterioration, mentioned by only some medical practitioners and not at all in the running of the case before her Honour, is not a consequence of any great moment on this evidence. Medication used was not of significant strength, being non-prescription and not used with any frequency. The evidence disclosed continued enjoyment of a wide range of social and domestic activities albeit with some modification and restriction. A wide range of occupations, including those for which the applicant has retrained, remain available to him on a full-time basis. Any frustration pertaining to work limitations was expressed in the context of being out of work for unrelated reasons, chiefly his conviction and sentence or his finger injury.

Consideration

First, we agree with the judge’s comment that this is a case that lies close to the threshold between ‘significant or marked’ and ‘at least very considerable’. As such, a careful weighing of all the consequences relied on and the weight to be attributed to them is critical. Second, the assessment of the judge was not assisted by the skeletal and formulaic nature of the applicant’s affidavit evidence-in-chief as to consequences. It was, as her Honour said, generic and lacking in detail. That in itself does not weigh against a finding of serious injury but, if as a result the necessary evidence is not before the judge, the application cannot succeed. The worker’s own evidence as to both the consequences of injury and the impact on lifestyle is central to the judge’s evaluative task. Where the affidavits lack detail, then the consequences of the relevant impairment can be difficult to evaluate.
In this case, fortified by the judge’s acceptance of the applicant as both a credible and reliable witness in what he told the court and the doctors, we have come to the conclusion that, on the whole of the evidence, the applicant’s consequences are fairly described as at least very considerable.
Importantly, the applicant’s description of pain supports this conclusion. Any back pain experienced before the injury was described to Dr Sullivan as ‘occasional muscular pain … following arduous days in the workplace but this would typically resolve by the following day’. Regarding the injury is question, the initial pain was as described above at [21]. Initially, he experienced leg symptoms which did resolve. Before reaching that point, his pain was sufficiently debilitating that he undertook the interventions recommended by Dr Sullivan and was assessed as suitable for a pain management program. He has subsequently described the persisting level of pain at seven out of ten[23] and at worst ‘when it catches 8’.[24] The applicant swore to ‘constant pain’ and ‘regular flare ups’. In his first affidavit, he said:
Even though I experienced some back pain in the past, it was never as severe, limiting or consistent as it is now.
[23]To his physiotherapist Mr Usher in 2021.
[24]As recorded in consultation notes extracted in the report of Dr Hewa dated 27 September 2022.
Accepting the descriptions from the affidavits and the medical evidence as she did, her Honour must also be taken to have put to one side the current situation of ‘intermittent pain’ as recorded by Mr Dooley. The applicant endures constant daily pain. Although the severity of that pain is in part assessed by the requirement for pain relieving medication, that is but one measure of severity.
In this case, the applicant said he tried to avoid taking Voltaren as much as possible. He nevertheless needed it ‘regularly’. By 2022, his general practitioner Dr Hewa was noting persistent pain despite use of analgesic and anti-inflammatory medications and physiotherapy. The tenor of the medical reports is that ongoing exercise, strengthening and core stabilisation is the recommended treatment. He is actively complying with this and supplementing it with medication as needed.
In Kelso v Tatiara Meat Co Pty Ltd, Dodds-Streeton JA observed that the endurance of permanent daily pain requiring frequent medication must ‘raise a real prospect of a “very considerable” consequence’.[25] Regular but not frequent medication, and the use of other treatment modalities or activity modification to reduce reliance on medication, informs this applicant’s daily experience of pain. The applicant’s current situation can be contrasted with that of Mr Stijepic in Stijepic v One Force Group Aust Pty Ltd, where the use of moderate strength non-prescription medicine was confirmatory of a level of pain that allowed the worker to engage in ‘unrestricted physical activity’ and ‘by and large … the activities that are important to him (and will be important to him in the future)’.[26] The constancy of pain has a daily effect requiring modification of many activities of daily living. The summary compiled by Dr Kossmann demonstrates that almost all activities impacting upon the spine, including both intrinsic and functional activities, cause difficulty. The applicant’s affidavit described active steps to access recommended treatment. He has followed the recommendation to progress from physiotherapy to a self-management regime.
[25](2007) 17 VR 592, 629 [199]; [2007] VSCA 267.
[26][2009] VSCA 181, [44] (Ashley JA and Beach AJA).
The applicant’s evidence as to his working life prior to injury demonstrated a man keen to work and earn. His general practitioner Dr Hewa noted a period when the applicant worked two jobs, a storeman by day and cooking in an Italian restaurant by night.[27] After injury, he persisted with restricted duties when available notwithstanding the difficulties he described with aspects of that work. There was no successful attack on his motivation to work. The frustrations with his work limitations resulting from his finger injury and his rapid completion of the terms of the community correction order reflect his desire to work. These other factors posed no ongoing limitation at the time of trial and it was not put to him that there were factors other than his back injury that presently impacted upon his ability to work. It can be accepted that the prospect of an injury that limits the types of work that he can comfortably manage with his level of symptoms for the foreseeable future might engender the frustration expressed in his affidavits. For a man with a long and solid history of work before injury, and who remains a relatively young man of 47 at the time of trial, that loss of enjoyment is a relevant consequence.
[27]Dr Hewa’s report dated 27 September 2022. This history generally accords with the occupational history recorded by Dr Mutton of working two jobs over three to four years.
The relevant evidence as to enjoyment of work focused on the applicant’s frustration. However, Ellis describes a broader inquiry into the ways in which loss of work capacity might be considered. In that case, the Court accepted a concession by the employer as to some of the ways the loss may be relevant to pain and suffering consequences:
[L]oss of the ability to engage in particular forms of employment may be relevant to the issue of pain and suffering consequences in the following ways:
(a)First, pain may be experienced at work or while performing particular types of work.
(b)Secondly, the inability to perform certain work may be indicative of what injury has in fact been sustained by the worker.
(c)Thirdly, a worker might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. Under this heading there may also be pain and suffering consequences in respect of any frustration of a worker being able to perform activity that he or she used to be able to perform.[28]
These matters may be interrelated and are not exclusive. The evidence demonstrated some relevance for the applicant of all three matters. He deposed to frustration, he described past employment difficulties through his work at eWaste, and present work options of forklift and truck driving were less about his level of interest as work within his qualifications and medical restrictions.
[28]Ellis [2013] VSCA 326, [44] (Osborn and Beach JJA).
An acceptance that the applicant was able to return to full-time alternative work, does not itself preclude an affirmative finding of serious injury. It is only one matter to be taken into account in an holistic assessment of consequences.
On the whole of the evidence, the applicant maintains a capacity for full-time employment but in a limited capacity. His ability to work in the occupations he previously engaged in depended largely on his physical wellbeing. The physical restrictions he now experiences restrict the nature of work he can perform. He cannot undertake a number of jobs that would previously have been within his skillset, capacity and areas of interest. In addition, there was evidence as to the ways in which his back injury impacted upon aspects of his life outside of work including his engagement with teenage sons, family life, and leisure activities that centred around physically active pursuits. As we have just noted, the effect of these limitations have a bearing upon the assessment of pain and suffering consequences and are not precluded from consideration because no serious injury application is made on the basis of loss of earning capacity consequences.
As deposed, his sleep was ‘often’ disturbed. While the frequency of disturbance was not further elaborated in the evidence, nor challenged in cross-examination, it remained to be considered as something less than a nightly occurrence but certainly more than an occasional one.
The applicant’s description of what he has lost was not challenged before the judge and was accepted by her. His description is borne out by a broad consensus of medical opinion based upon an acceptance of what those doctors were told. In assessing the whole of the evidence for ourselves, we have come to the conclusion that the evidence does demonstrate that the cumulative impact of the identified consequences fairly described, satisfies the statutory test.

Conclusion

Will we grant leave to appeal, allow the appeal, set aside the orders made below and, in lieu thereof, make an order granting the applicant leave to commence his proposed common law proceeding.

[2025] VSCA 20

28 February 2025