Safari v Victorian WorkCover Authority
[2025] VCC 1625
•13 November 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-07041
| FAIZ MOHAMMAD SAFARI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2025 | |
DATE OF JUDGMENT: | 13 November 2025 | |
CASE MAY BE CITED AS: | Safari v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1625 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the function of the spine – long-term severe mental or behavioural disturbance or disorder – paragraphs (a) and (c) of the definition of “serious injury” – loss of earnings – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013, s335(2)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Mighell KC with Mr D D Nguyen | Zaparas Lawyers |
| For the Defendant | Mr E Makowski | Russell Kennedy Lawyers |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act2013 (“the Act”) for injuries suffered by the plaintiff in the course of his employment between 2021 and 2023, and more particularly on 31 January 2023 (“the incident”) while he was employed with Hol Special Parts Pty Ltd (“the employer”).
2The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and economic loss.
Relevant legal principles
3The application for leave to bring proceedings for damages is brought pursuant to subparagraph (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“‘serious injury’ means—
(a)permanent serious impairment or loss of a body function;
…”
4The physical impairment relied upon is the function of the spine.
5In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury,” by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer, on or after 1 July 2014.
6The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7In relation to the physical impairment, by s325(2)(c) of the Act, it is the “consequences” of the physical impairment which produce the “pain and suffering” or “loss of earning capacity”, which must be “serious” – that is, if the plaintiff is to succeed in his claim relating to impairment or loss of a body function, the plaintiff must prove, on the balance of probabilities, that such impairment or loss results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative test”. It has been held that this task is largely a question of impression or value judgment.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8Sections 325(e) and (f) set out the statutory formula by which, in usual circumstances, the Court must measure the plaintiff’s loss of earning capacity prior to any grant of leave. This formula provides that the plaintiff must establish a loss of earning capacity of 40 per cent or more, as measured in accordance with s325(f) of the Act.
9In determining the application, the Court:
(a) must assess whether the injury is a “serious injury” as at the time the application is heard;[2]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]
[2]Section 325(2)(j) of the Act
[3]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
10It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant incident.[4] To undertake this task, the plaintiff must establish what physical injury was caused by the incident. The Court must then determine the consequences of that injury to the plaintiff, disregarding any consequences which the Court finds arise from circumstances other than the physical injury.[5] If the Court is satisfied that the consequences of the physical injury alone are “serious” and long term, then the plaintiff will have demonstrated that he is suffering from a “serious injury” under the Act.[6]
[4]Petkovski v Galletti [1994] 1 VR 436 at 442
[5]Ibid at 444
[6]Ibid
11Section 325(2)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
12By s325(2)(b) of the Act, in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the physical impairment arising from the injury the subject of this application, and the range of possible physical impairments.
13In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[7] and Grech v Orica Australia Pty Ltd & Anor.[8]
[7](2005) 14 VR 622
[8](2006) 14 VR 602
14The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined.
15In addition, both parties relied upon medical reports and other materials which were contained in the Court Books,[9] or were otherwise tendered. I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[9]Specified pages of the Plaintiff’s Court Book were marked as Exhibit (“Ex”) P1; specified pages of the Defendant’s Court Book were marked as Ex D1
The Plaintiff’s background
16The plaintiff was born in Afghanistan in December 1978. He is presently aged forty-six years. He is married and has six children. All of the children live at home with him and his wife.[10]
[10]Ex P1, p21
17He completed school until Year 10 level. When he finished school, he worked as a mechanic in his father’s business. He then worked as a security guard.[11]
[11]Ex P1, p22
18He moved to Australia with his family in 2021. He started working with the employer as a mechanic about nine months after he arrived in Australia. He was employed on a full-time basis. His work duties included bending, twisting and crouching in order to work on vehicles. There was a lot of heavy lifting of car parts. There were forklifts to remove large items, but no other lifting machines available.[12]
[12]Ex P1, p22
The incident
19He experienced pain in his lower back when lifting at work and, in particular, on 31 January 2023. He was removing a rolltop cover to install it. He did that task many times in the course of his employment. After the installation, he felt pain in his lower back. He struggled to move because of the severe pain. He was assisted by another worker, who directed him to go home. He went home and hoped the pain would go away.[13]
[13]Ex P1, p22
20The following day, he consulted with his general practitioner, who gave him pain medication. He went to work for a further two weeks but could not cope with the back pain and stopped working. He started physiotherapy and continued to take Nurofen and Panadeine Forte.[14]
[14]Ex P1, p22
21On 2 February 2023, he had a CT scan of his lower back that showed:
(a) L2-3: minor annular disc bulge and ligamentum flavum thickening;
(b) L3-4: mild annular disc bulge and ligamentum flavum hypertrophy; moderate right and mild left subarticular recess narrowing with potential impingement of the descending right L4 nerve root;
(c) L4-5: mild annular disc bulge that is more prominent left paracentral, ligamentum flavum hypertrophy and likely impingement of the descending left L5 nerve root; and
(d) L5-S1: minor annular posterior disc bulge with ligamentum flavum hypertrophy.[15]
[15]Ex P1, pp22-23 and 69
22On 2 June 2023, he had an MRI scan of his lumbar spine which showed reduced disc heights at L4-5 and L5-S1 and posterior disc bulge at L5-S1.[16]
[16]Ex P1, p23
23On 18 July 2023, the plaintiff consulted with Dr David Edis, orthopaedic and spine surgeon. Dr Edis suggested that the plaintiff consider having an injection and also suggested another procedure involving radiofrequency.[17]
[17]Ex P1, p23
24On 4 October 2023, he had a CT-guided epidural injection. He thought that this procedure made his pain worse.[18]
[18]Ex P1, p23
25He continued having physiotherapy in 2024. He experienced pain in his back, and into his leg and groin. He consulted Dr Ali Kian Mehr, pain physician, about his back pain in mid 2024.[19]
[19]Ex P1, p23
Pre-existing illness
26He has been diagnosed with tuberculosis. He consults with doctors at Monash Health in relation to this condition. He has been advised that this condition is a “dormant type” of tuberculosis. Since the incident, he has not received any treatment for his tuberculosis.[20]
[20]Ex P1, pp22 and 27
Evidence concerning the consequences of the Plaintiff’s injury
27The plaintiff swore two affidavits, the first dated 30 July 2024 and the second dated 14 March 2025.
28In summary, the plaintiff’s evidence as to the pain and suffering and economic loss consequences which he presently experiences is as follows:
(a) he has constant pain in his lower back. He has a “heavy” sensation there. His lower back feels stiff. The pain and stiffness is mainly in the middle of his lower back. The pain changes in intensity, depending on how much activity he does. It is not just one level. It changes and is at times very intense;[21]
[21]Ex P1, p28
(b) he has flare-ups of lower back pain a few times a week. When he experiences a flare-up, the pain “grinds” at him and really affects him and what he is able to do;[22]
[22]Ex P1, p28
(c) his back pain gets worse when he does things such as stooping, bending, crouching, squatting and lifting anything heavy. It gets worse if he walks or stands for long. He often changes his posture to try and ensure that he does not aggravate the pain;[23]
[23]Ex P1, p28
(d) the pain in his lower back sometimes travels down to his left leg. He finds that after driving for a period, his left leg feels numb. After a time, this improves;[24]
Treatment and medication
(e) he consults with his physiotherapist twice a week. He consults with his general practitioner monthly, for certificates and pain medication;[25]
(f) since the epidural injection he underwent on 4 October 2023, he has not had any further injections;[26]
(g) he has not had any further recommendations for specific treatment or surgery;[27]
(h) he continues to see Dr Mehr, pain physician, for ongoing treatment;[28]
(i) he currently takes the following medications:
(i)Targin, 10 milligrams and 5 milligrams, depending on the pain level, once per day;
(ii)Oxazepam, 15 milligrams per day;[29]
[24]Ex P1, p28
[25]Ex P1, p23
[26]Ex P1, p27
[27]Ex P1, p27
[28]Ex P1, p28
[29]Ex P1, p28
(j) he takes the medication for the pain in his lower back. When the medication wears off, the pain gets worse;[30]
[30]Ex P1, p28
Sleep
(k) he struggles to get comfortable enough to sleep at night. His sleep is affected by the pain he experiences in his lower back. The pain in his lower back causes him to wake up and it is also difficult for him to fall asleep due to that pain; [31]
[31]Ex P1, pp28-29
(l) at times, it is both lower back and left leg pain that affects his sleep. He experiences pain when he sleeps on his left side; [32]
[32]Ex P1, pp28-29
(m) he has been prescribed medication which helps him to stay asleep. Prior to taking this medication, he was waking up several times per night;[33]
[33]Ex P1, p24
(n) the medication he takes for sleeping helps, but he still has problems going to sleep or waking up due to pain. He has tried to take the sleeping medication less. There have been nights when he has stayed up until the sun rises due to his lower back pain; [34]
(o) sometimes he is awake due to the lower back pain and at other times it is due to how he has been affected mentally by his work injuries;[35]
Activities of daily living
(p) before his back injury, he used to be social and enjoy visiting friends. He tends to avoid going out these days, because he cannot cope with long periods of standing and sitting. He prefers to be on his own, to avoid getting attention about his back injury. He misses being with his friends and being with people, but it is not worth the worsened back pain. Sometimes he goes out to visit friends, but less than before he suffered the injury to his lower back. He is not who he used to be before he suffered that injury;[36]
(q) prior to his back injury, he enjoyed playing soccer. He had played while he lived in Afghanistan and had hoped to resume playing once he and his family were settled in Australia. He would struggle to play soccer now, because the kicking and running would worsen his back pain;[37]
(r) he clarified in his second affidavit, that when he referred to enjoying playing soccer, he has not played soccer since arriving in Australia;[38]
(s) if he sits in one position or drives for long periods, the pain in his lower back gets very strong and he has to rest or stretch his back to ease the pain;[39]
Psychological injury
(t) his greatest struggle is not being able to work and contribute to his family in the way that he used to. As his English is not good and due to his physical limitations, he worries a lot about whether he will be able to work again;[40]
(u) he feels down on himself a lot with the pain and missing out on the things that he used to enjoy. He also experiences a lot of guilt and shame that he cannot work and contribute to his family financially. He has always wanted a good future for his children. He finds it sad that he is not sure that he can provide for that now;[41]
[34]Ex P1, pp28-29
[35]Ex P1, pp28-29
[36]Ex P1, p24 and 29
[37]Ex P1, p24
[38]Ex P1, p29
[39]Ex P1, p29
[40] Ex P1, p29
[41]Ex P1, p30
Loss of earning capacity
(v) the biggest consequence of his back injury is his inability to return to full-time work. He loved his job. He was proud of his ability to earn money and to provide for his family. It was a big life event to move to Australia with his family, and he had overcome a lot of hardship to get to Australia and obtain a good job with a good wage. He had planned to work as hard as he could to set up his family and provide a good future for his children;[42]
(w) he has only ever done physical-type work. He does not have English-language skills. He cannot write or read English. He would struggle to lift heavy car parts and repetitively bend and crouch for long periods of time. He has tried to do small pieces of work on his car at home, but the pain is very bad afterwards;[43]
(x) he worries about what sort of work he could do now that he has a back injury.[44]
[42]Ex P1, pp24-25
[43]Ex P1, p25
[44]Ex P1, p25
29Under cross-examination, the plaintiff gave the following relevant evidence:
(a) he sometimes talked in English and sometimes in Farsi when he worked with the employer;[45]
[45]Transcript (“T”) 11, Line/s (“L”) 31-33
(b) he cannot speak English and he does not understand English;[46]
[46]T12, L2-8
(c) he does not presently walk with a limp. He has previously walked with a limp;[47]
[47]T12, L9-10
(d) he denied ever limping on his right side. He said “No, there’s no problem with my right leg”;[48]
[48]T12, L9-16
(e) he does not presently use a walking stick. He has not ever used a walking stick since he suffered the injury;[49]
[49]T12, L17-18
(f) he was asked why, even though he had an interpreter available to him, he answered one of the questions in English. He replied “I understand sometimes, yes”;[50]
[50]T12, L30-31
(g) it was suggested to him that he has “reasonable communication skills in English”. He denied that this was true;[51]
[51]T13, L1-2
(h) his back pain is worsened by stooping, bending, crouching and squatting. He said that he can only lift light things;[52]
[52]T13, L25-31
(i) the pain gets worse if he stands for more than about 10 minutes. When this happens he has to walk around to reduce the pain. He can sit for about one hour before the pain gets “very bad”;[53]
[53]T14, L2-9
(j) he always has pain, but if he does heavy lifting, that makes it worse;[54]
[54]T14, L10-14
(k) he used to be social and enjoyed visiting friends. He now tends to avoid going out because he cannot cope with long periods of sitting and standing. He prefers to be on his own to avoid getting attention about his back injury. He misses being with his friends and seeing people, but it is not worth it because of the worsened back pain that he experiences. He still “sometimes” socialises with his friends. He does not do activities with his friends, he just visits them, sometimes at their houses. He has been on outings with friends since he suffered the injury. He could not initially recall when the last outing was. Subsequently he recalled that it may have been the day of “Eid”. He could not remember the date of this religious occasion;[55]
[55]TT14-15
(l) he sees a psychologist at the present time, usually once a week. The reason he sees this practitioner is because of the pain that he is having and the fact that consultations with the psychologist make his mood feel better;[56]
[56]T16, L9-15
(m) he is mentally affected by the injuries he has suffered, and experiences some depression;[57]
[57]T16, L16-17
(n) he changed general practitioners recently. He said that this is because his former general practitioner, Dr Hosseini, was “not treating me very well and he was forcing me to go to work while I couldn’t work so that was the reason I changed him”;[58]
[58]T16, L22-28
(o) he denied that he moved to his new general practitioner, Dr Khan, because he believes he cannot work ever again. He said “No, I went to Dr Khan if I can get proper treatment and then after that I can return back to work”;[59]
[59]T17, L5-8
(p) it was put to him that Dr Hosseini had arranged a variety of treatments for him, and had therefore treated him properly. In response, he replied “At the moment I’m not sure because I’m in severe pain and I don’t think I received proper treatment”;[60]
[60]T17, L9-14
(q) he was pressed on why he said that Dr Hosseini did not give him proper treatment. In response to this, he replied “I couldn’t get rid of the pain”;[61]
[61]T17, L27-28
(r) it was put to him that in fact the treatment which had been given to him by Dr Hosseini had helped him and that he had improved. It was suggested to him that he dies not want to go back to work. He denied this;[62]
[62]T17, L29-31
(s) when asked to clarify why he left Dr Hosseini, he replied “Because at that time I didn’t complete my treatment and I was doing the pain management program and he gave me the certificate that you can work with Julie but I couldn’t work. ... After that I didn’t see him, no”;[63]
[63]T18, L1-10
(t) he agreed that he chose to be discharged early from the pain management program. This was because the severity of his pain had remained unchanged. He explained, “… I went there for a very long time and their exercises didn’t help me. Didn’t reduce my pain. But physio was helpful and that’s why I was asking to do physio”;[64]
[64]TT18-19
(u) he was asked how he knew that the pain management program was not going to help him if he did not finish it. In reply, he responded “Because my pain was increasing”;[65]
[65]T19, L14-15
(v) it was suggested to him that during the program, he was able to reduce his opioid use and his pain did not increase at that time. In response, he replied “I don’t remember. What time are you talking about? I’m not sure”;[66]
[66]T19, L16-20
(w) he agreed that Dr Hosseini had arranged for him to have an epidural injection into his back. He said this did not help him, and in fact made his pain worse. He explained further, “It didn’t help me [and] apart from that the injection site was really painful and was burning. For a very long time I was feeling pain there in the injection site. ... For three or four months”;[67]
[67]TT19-20
(x) he denied having neck pain at the present time;[68]
[68]T20, L9
(y) he was asked whether or not he has shoulder pain. In response, he replied “Only when I’m trying to lift my arm it hurts”. It was clarified with him that this issue impacts upon his lifting ability. He agreed that this was true;[69]
[69]T20, L25-31
(z) he confirmed that he experiences numbness in his fingers. He was asked whether or not this affects him on a day-to-day basis. In response, he replied “As I’m not working it’s okay”;[70]
[70]T21, L1-8
(aa) he confirmed that he takes painkillers for these issues, but clarified “It doesn’t help, but it’s just reducing the pain. ... I mean that it’s not a proper treatment for that”;[71]
[71]T21, L14-19
(bb) he told Dr Khan about his left arm problem. He said that Dr Khan advised him to get physiotherapy;[72]
[72]T21, L24-27
(cc) he confirmed that the pain-relieving medications he takes have a good effect on his back pain;[73]
[73]T21, L28-30
(dd) he was asked whether or not the physiotherapy treatment for his back pain actually helps him. He replied “So when I’m doing physio is actually reducing the pain, but if I don’t do the physio pain is getting worse”;[74]
[74]TT21-22
(ee) it was put to him that the medication he takes only gives him very mild pain relief. He agreed that this was true, but clarified “The medication’s helping me for four or five hours. When the effect of the medication wear[s] off I’m still having the pain”;[75]
[75]T22, L26-31
(ff) it was clarified with him that Dr Khan had written “He feels that the medicines give him very mild temporary relief”. In response, he replied “Yes, I told that if I don’t take medication then the pain is getting worse”;[76]
[76]T23, L1-4
(gg) he was taken to a consultation he had with Dr Hosseini on 26 April 2023.[77] The note recorded that the plaintiff was “Walking with a walking stick. He says he has decided to use a walking stick and it has not been recommendation of the physio”, and he confirmed that this was true. It was put to him that despite what he had said earlier about not using a walking stick, on at least this occasion, he had used one. In response, he replied, “At that time I bought that one and I was going to consult with him should I use the stick or not, and he recommended not, then after that I didn’t use it. ... No-one told me, I bought it myself. I thought it will help me with the pain ... Then later on I gave it back to the shop and I told them I’m not allowed to use the stick”;[78]
[77] Ex P1, p32
[78]TT23-24
(hh) he denied that he presently has a walking stick at home;[79]
[79]T24, L22
(ii) it was put to him that when he attended Dr Khoury in August 2023, his symptoms included severe low back pain with pins and needles down the leg, and an inability to sleep at night. He confirmed that this was true. He was asked whether or not this was still the case at the present time. In response, he replied “I don’t have the needling sensation in my leg anymore”;[80]
[80]TT26-27
(jj) he confirmed that in August 2023, his back pain affected his ability to camp, walk and have barbecues with his friends;[81]
[81]T27, L11-14
(kk) by reason of his back pain, he is slow with walking and slow with dressing and undressing. He is also hesitant with bending and going back to the upright position.[82] He said that he still has difficulties bending and going back to the upright position due to his pain;[83]
[82]T27, L11-20
[83]T27, L21-23
(ll)he was shown a portion of surveillance material from July 2023. He confirmed that this video surveillance showed him climbing into the back of his Tarago vehicle. He said that he was cleaning the car. He agreed that he was bending over at the waist. He agreed that he was in a very deep squat inside the vehicle. He agreed that he was twisting while in that position. It was put to him that there were no observable signs of pain demonstrated on the video surveillance footage. In response, he replied “Even though when I was cleaning I had pain but it was very less pain but after when I finished cleaning I went home the pain got worse”. He said he had not watched this portion of video before the hearing;[84]
[84]TT27-28
(mm)he was asked whether or not he still cleans his car at this time. In response, he replied “No”;[85]
[85]T28, L29
(nn) he was asked whether or not he can still do the movements that were shown in the video surveillance. In response, he replied “At that time I could do those movements. … I can do it but I will have severe pain. ... Sometimes I’m having severe pain but sometimes the pain … decreases, sometimes less pain. Probably when I was doing the cleaning maybe I had less pain at that time. ... Even though I could do those movements right now but later on I will have severe pain”;[86]
[86]TT28-29
(oo) he was pressed about whether or not he still does these types of movements and still cleans his car at the present time. In response, he replied “No, because I’m having severe pain that’s why I’m not touching anything anymore. If I knew this activity will increase my pain then I’m not doing the activity. At that time I didn’t know. ... I wasn’t sure that I have that problem or if I was sick. I thought I could do a lot of things, I couldn’t do that one so that’s why I was cleaning my car. But now if I think the activity will increase my pain then I’m not doing it anymore”;[87]
[87]T29, L15-27
(pp) it was put to him that at the point in time where the video surveillance was taken, he had in fact had pain for many months. He agreed that this was true. It was put to him that at that time, he knew he had pain and he also knew how restricted he was. He agreed that this was true. It was put to him that the explanation he gave for his ability to perform those tasks on the video did not make sense, taking into account what he had just confirmed about the existence of his pain and his knowledge of restrictions at that time. In response, he replied “What do you want?” He was pressed again about whether or not he agreed that his explanation did not make sense. In response, he replied “Just maybe it’s not great for you but for me to make sure that I’m able to do something, convince myself that I’m able to do something makes sense. But maybe not making sense for you”;[88]
[88]TT29-30
(qq) he was pressed on this issue, and it was suggested to him that the video surveillance he had been shown demonstrated a person with a “very small back injury if any injury at all”. In response, he replied “Yes, I agree. In the video it’s looking someone who is very healthy is working.” He agreed that this is different to how he was presenting to his general practitioner in the months before the video was taken;[89]
[89]T30, L13-18
(rr) it was suggested to him that what was shown in the video surveillance is an example of a “big difference between someone who needs a walking stick compared to what we see on the video”. In response, he replied “Yes, at that time when I was looking for walking stick I was in severe pain, I thought that would help me. And I also wanted to return back to my work but they changed my work from being a mechanic to cleaning, I didn’t like it and I wanted to be a mechanic. But when I was cleaning my car in that video and after the cleaning I was having severe pain, I realised I’m not able to return back to work”;[90]
[90]T31, L9-18
(ss) it was suggested to him that in the two months before the video surveillance was taken, he presented to his doctors in a very disabled way with back pain. It was suggested to him that the video shows no disability. He replied, “That’s correct”. It was suggested to him that his explanation that he did not know how bad his back pain was until undertaking the activities in the video was incorrect. He replied, “I don’t know”. It was put to him that the video shows him having no pain while bending down. In response, he replied “I’m always having pain. ... What I’m saying is that my pain is fluctuating, sometime it’s getting very severe. When I’m in severe pain I’m not able to do anything. But if I have less pain I’m able to do something. Well, if I have less pain I’m a human being, I have to go outside, I have to do something to keep myself busy. So but if I’m in severe pain I’m not able to do anything. But I have always pain”;[91]
[91]TT32-33
(tt) he was asked once again about why he would have presented to doctors very differently to what was shown in the video surveillance. In response, he replied “Maybe because sometimes I’m in a severe pain, sometime not, sometime I’m good, sometime in a very bad situation, so I don’t know why it’s happening to me”;[92]
[92]T34, L6-11
(uu) he was asked whether or not he had seen a second piece of surveillance footage. He said he had seen one where he went to a picnic with his family and was sitting on a chair. He could not recall when he had seen it. He was asked whether or not he thought that video showed him as somebody without much of an injury. In response, he replied “That’s what you think of me, but I’m in pain, I have problem”;[93]
[93]T34, L22-28
(vv)he was shown the portion of video footage taken in October 2024. He agreed that he was the person depicted in the video. He did not remember the day, but did remember one day going to such an occasion;[94]
[94]T35, L16-30
(ww)he could not recall how long the drive to the park was, saying only “It was further away, it was too far. ... Maybe an hour or more than an hour but I don’t remember exactly”;[95]
[95]TT35-36
(xx) he agreed that in this portion of video surveillance, he was seen to sit on a rug on the ground with friends at a social outing. He was asked whether or not he agreed that the video showed him to be enjoying himself. In response, he replied “No. Was not good for me.” He agreed that the video demonstrated him walking at a normal pace with no limping, and talking on his phone;[96]
[96]T36, L19-31
(yy) he was asked how many hours he thought he was at the park. In response, he replied “I don’t remember, but we were there for a long time and I was sitting on the chair and after that I ate. After that I had pain, I got pain in my back, then I went to my car and lie down in my car.” When asked how long he lay down for, he could not recall, saying “maybe two hours, two and a half or three hours ... Maybe one hour ...”;[97]
[97]TT36-37
(zz)it was put to him that the chair he was sitting in, which was a fold-out chair, did not have much back support. He disagreed with this, and said “Yeah, had support but it was soft. ... Had back support but it was soft”;[98]
[98]T37, L12-15
(aaa)he agreed the video depicted him leaning forward in his chair and using his arms to pick up a drink from the ground;[99]
[99]T37, L17-20
(bbb)when asked why his wife did not drive to and from the park, he replied “Because my wife recently start learning driving and that was far away and my children was in car, was not safe, that’s why I was driving”;[100]
[100]T37, L21-24
(ccc)he was asked if he agreed that an observer of the video would not be able to tell that he was in pain. In response, he replied “Yes, you’re right, when you see the video ... it seemed like the person has no pain whatsoever, but I was in pain and the pain got worse later on, and I went to my car, I lay down there ... I didn’t play, I didn’t play football, there was no game, it was very boring for me”;[101]
[101]T38, L3-10
(ddd)it was put to him that this is an example of him going out and seeing his friends and enjoying his time. He did not agree with this proposition;[102]
[102]T38, L11-12
(eee)the content of Professor Bittar’s report was put to him, where Professor Bittar listed all the issues which the plaintiff has difficulty with. It was suggested to him that that list of difficulties was quite different to what could be seen on the video in terms of socialising and sitting for prolonged periods. The plaintiff enquired what was the time difference between the video surveillance and the medical report. He was informed that the medical report was dated May 2025 and the video surveillance was October 2024. In response, he replied “So the situation is changing. At that time, maybe I had less pain, but now the pain is getting worse, especially when the weather is getting cold. So yes, from time-to-time, it’s changing”;[103]
[103]TT39-40
(fff) he was asked whether or not he had been exaggerating the extent of his pain to his general practitioner, Dr Hosseini. In response, he replied “No, I was telling the truth”;[104]
[104]T42, L8-9
(ggg)he was asked whether or not he has any plans to return to work for the rest of his life. In response, he replied “Yes. ... I will return back to my mechanic job”;[105]
[105]T42, L13-15
(hhh)when asked whether he would consider doing alternative jobs that were lighter than his mechanic job, he replied “... I don’t know how to do the other jobs”;[106]
[106]T42, L16-18
(iii) it was suggested to him that he has formed the view that he will not even think about working until he finishes with this WorkCover case. In response, he replied “No. Always in my mind to get rid of this pain and to get healthier and return back to work”;[107]
[107]T42, L19-26
(jjj) he confirmed that when he takes his medication, his pain decreases from 10 out of 10, to 5 out of 10;[108]
[108]T43, L3-9
(kkk)he confirmed that his pain has been worsening since he first suffered the injury in early 2023;[109]
[109]T46, L2-9
(lll) it was put to him that the only way the doctor can assess what pain he is in, is by what he tells them. In response, he replied “I told the truth to the doctor and he had all the tests in front of him, so I don’t know.”[110]
[110]T48, L16-21
(mmm)it was put to him that his sleep is affected by his psychological condition; namely, that he is depressed, sad and worried. In response, he replied “Yeah, sometimes the pain does not allow me to sleep - my lower back pain”;[111]
[111]T49, L2-6
(nnn)he agreed that he had told his general practitioner that TAFE would be too difficult for him because he needs to sit for 60 or 90 minutes at a time at that course, but he needs to stand up frequently due to back pain. It was suggested to him that he can sit for longer than 60 to 90 minutes, based upon what is depicted in the video surveillance taken in October 2024. In response to that, he replied “For one day I can do it, not forever”;[112]
[112]T49, L24-29
(ooo)he was asked whether he knew why he could engage in that amount of sitting on the day of the video but now says that he cannot do it. In response, he replied “Well I don’t know the day of the video but some time if I have to do it then I have to bear the pain and I have to do it, I have no choice”;[113]
[113]T50, L2-5
(ppp)it was put to him that Dr Hosseini had written a certificate of capacity which allowed him to engage in English-language training. He agreed that he remembered this, and added that “I requested that”. It was clarified with him that he was suggesting that he was the one that had requested English-language training. He agreed that this was true. He was asked whether or not he had gone and done such training. He said that he had not. When asked why he had not undergone that training, he replied “I was waiting for them to find someone, to get approved, and I was in touch with Ms Julie but I don’t know what happened, they couldn’t find someone”. He denied that he told his new general practitioner, Dr Khan, that he did not want to undertake English-language training;[114]
[114]T50, L12-28
(qqq)he was aware that Dr Hosseini had recommended that he undergo one-on-one English tutoring in a community setting. He has not undertaken this training;[115]
[115]T56, L1-11
(rrr) He agreed that Dr Hosseini had proposed that he return to work on three to four-hour shifts, four days per week, with certain other restrictions. He added to this, “At that time I told them I am in severe pain, I’m not ready to return back to work, but he was insistent. He was asking me to go to work. ... Then I said okay, if that’s the case, then I have to learn English first, then I will find another job”;[116]
[116]TT57-58
(sss)it was suggested to him that immediately after this exchange, he changed general practitioners. He disagreed that this was the case. He said that the reason he changed general practitioners was “Because from the start when I was with this doctor, I didn’t see any benefits. I thought it’s better to try another doctor”;[117]
[117]TT58-59
(ttt) it was put to him that he had changed general practitioners because Dr Hosseini believed that he could work. In response, the plaintiff replied “I’m not sure about him believing me or not, only the result. ... I think when I changed my doctor, it took me a month or two”;[118]
[118]TT59-60
(uuu)the details of doing a car park attendant’s job were put to him, including assisting customers and receiving and processing payments. He was asked whether or not he thought he could undertake this role. In response, he replied “No, because I cannot speak English. ... I understand everyday things a little bit”;[119]
(vvv)he was taken to the requirements of being a service adviser. He was taken to the fact that it involved manual and computerised data entry and word-processing tasks and general office duties. In response, he replied “No, I cannot do that ... Because I don’t know how to use a computer now, I don’t know how to speak English. ... My memory is very bad but I will do my best but I don’t think so”;[120]
(www)he was taken to the tasks involved in being a ticket collector or usher. He was taken to the fact that this required constant sitting or standing at a sales counter, and walking around assisting customers and collecting tickets. In response, he replied “No, I cannot do it because you need English. … Since my injuries … I forgot a lot of English words because … [I’m] not feeling well … I’m not happy and I’m taking the medication making my situation worse”;[121]
(xxx)it was put to him that Dr Slesenger had observed him demonstrating a right-sided limp when he went to see that doctor on 14 May 2025. In response, he replied “I don’t have any problem on the right side. ... I’m always walking straight on my right side. I don’t feel anything wrong on my right side”;[122]
(yyy)the observations made by Mr Dooley in his report dated 3 September 2024 were put to him. In particular, he was taken to Mr Dooley’s opinion that the video surveillance overall showed the plaintiff being active in general and having a physical capacity to do light physical work and clerical-type work. In response, he replied “If I’m in less pain or if I don’t have pain then, yes, I could do that one. But I told him my pain is fluctuating. If I’m in severe pain, no, I cannot do it”;[123]
(zzz)he was asked whether or not his neck pain or left shoulder pain is as bad as his back pain. In response, he replied “No. The pain in my shoulder and my arm is less than my lower back. My lower back is worse. And now it got worse because of the cold weather”;[124]
(aaaa)he was asked what sort of pain he experiences when he bends and squats. In response, he replied “... when I’m bending myself I’m feeling severe pain in my lower back”;[125]
(bbbb)when asked to explain this point further, he replied “It’s not the severe, severe pain, but it’s very kind of annoying pain.” It was pointed out to him that he had used the word “severe” in his earlier answer. In response, he replied “Yes, it is severe but not the way you telling me it’s very, very severe, it’s not that severe. But when I’m bending, yeah, it is severe pain”;[126]
(cccc)it was put to him that nothing in the video surveillance which showed him bending forward, reflected that he was in pain. In response, he replied “No, but that’s what you think, that if I bend myself I’m not feeling pain, I can bend myself, but no, actually I’m feeling pain. ... Yes, I’m always having pain since my injuries, my pain is consistent, and sometime[s] it’s getting less, sometimes getting more”;[127]
(dddd)it was put to him that despite the fact that he has told a number of doctors that prolonged sitting or standing aggravates his pain, the video surveillance showed him engaging in prolonged sitting in the park. In response, he replied “Yes, I have to because … I was sitting with my own people and I have to bear the pain. When the pain got worse I changed my location. A few time[s] I wanted to lie down on the floor, but I couldn’t do it because of the cultural issue ... I didn’t want to ... in front of those people.”[128]
[119]TT60-61
[120]T61, L9-30
[121]TT61-62
[122]TT64-65
[123]TT65-66
[124]T66, L11-14
[125]T67, L12-18
[126]T67, L19-24
[127]TT67-68
[128]TT68-69
30Under re-examination the plaintiff gave the following relevant evidence:
(a) the reason that he underwent an epidural injection a few months after the first video surveillance was taken in July 2023 was because of the pain that he was experiencing;[129]
(b) he does not own a computer and has not ever worked on a computer. He cannot use a computer;[130]
(c) since coming to Australia, he did study English. He thinks that was for a period of more than two or three months. It was at the same time that he was working, doing full-time work. After hours he was going to TAFE to learn English;[131]
(d) he was asked why, in the second tranche of video surveillance, after he had been sitting on the ground eating, he then moved to a chair. In response, he replied “Because I cannot sit on the floor for a very long time. I can sit to just finish my food, then I’m sitting on a chair because I am comfortable on a chair”.[132]
(e) he said that when he gave evidence that he was lying down in his car, that was after he had finished his food, and was sitting on a chair. He said that “Everyone was busy and I was by myself, got bored, and I got pain, then I went to the car and I lie down in the car”;[133]
(f) when he was asked whether or not that was shown on the video surveillance, he replied, “I think they shown it ... that I was going to the car, lie down, but ... the time I was lying down in the car. They didn’t show that on the video”.[134]
[129]T69, L22-27
[130]T69, L28-30
[131]TT69-70
[132]T70, L12-18
[133]T70, L21-28
[134]TT70-71
The medical evidence
31There were numerous medical reports contained in the tendered material. Both parties relied upon reports from medico-legal experts. A précis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
32The plaintiff relied upon three reports from his general practitioner, Dr Ebrahim Hosseini: the first dated 3 July 2023, the second dated 5 March 2024, and the third dated 23 July 2024. In the first report,[135] Dr Hosseini described the plaintiff as suffering from “[severe] lower back pain” which at that time had been affecting him for three months.
[135] Ex P4
33In the third report, Dr Hosseini diagnosed the plaintiff as suffering from severe depression secondary to chronic pain affecting sleep and function:
“His issues include :
- Chronic pain
- Concentration, attention, and memory are affected.- Problem-solving, planning, decision-making, and organisation are severely impaired.
- Communication, listening, and administrative duties are impacted, partly due to poor English proficiency.
Physical Function:
- Able to walk 200 metres on a level surface.
- Can lift up to 5kg from ground to waist or waist to shoulder.- Able to stand and walk for up to 30 minutes a day, with breaks as needed.
- Capable of repetitive hand and finger movements.
- Not fit for employment due to ongoing pain but might manage a sedentary role involving office desk work or attending meetings.
Management:
1. Pain Management:
Medications:
- Targin 5-10mg twice daily
- Mobic 15mg once daily with a meal
- Paracetamol 1g at night as required
Physiotherapy:
- Exercises, gym membership, hydrotherapy, and hands-on massage to restore joint movement and reduce pain, swelling, and muscle spasm.
- Home exercise programme.
2. Severe Depression:
- Medications:
- Sertraline 50mg (SSR)
- Psychology counselling and coping mechanisms.”[136]
[136]Ex P1, p38
34The plaintiff relied upon one report from his treating general practitioner, Dr Shahroze Khan, dated 18 February 2025. In that report, Dr Khan said that the plaintiff had been diagnosed with severe lower back disc disease, most marked at L4-L5. Dr Khan noted that the plaintiff had been working as a mechanic, and his work involved a lot of heavy and repetitive lifting and bending. He sometimes had to lift over 60-70 kilograms, and his back pain started when he lifted a heavy object at work. Dr Khan noted that the plaintiff had been on multiple painkillers over the last two years, including Targin, Palexia, Mobic and Gabapentin. The plaintiff felt that these medications gave him very mild temporary relief. Dr Khan also diagnosed the plaintiff as suffering from an Adjustment Disorder for which he has been seeing a psychologist and taking Sertraline.
35Dr Khan expressed the opinion that the plaintiff’s occupation as a mechanic was the main contributor towards his back injury. He noted that the plaintiff has severe back pain radiating down his legs. He is unable to bend/squat/kneel, unable to lift more than 2 kilograms, unable to sit/stand/walk/drive for more than 10 to 15 minutes. Dr Khan said that the plaintiff is at risk of developing degenerative changes, and that from the last MRI, he could see that the plaintiff has already developed significant degenerative changes. He thought that the restrictions that he had outlined were “permanent”. He thought that the plaintiff was unfit for his pre-injury duties, and did not think that this situation would change in the future. He also expressed the opinion that the plaintiff was unfit for modified duties and thought it was very difficult to say whether or not the plaintiff would be able to return to the workforce in the future in any capacity. He noted that the plaintiff’s lower back injury restricts not only his work life but also his day-to-day and personal life. In particular, he noted that the plaintiff’s back pain restricts him from participating in leisure and social activities, and that this is likely to continue into the foreseeable future.[137]
[137]Ex P1, pp39-40
36The plaintiff relied upon one report from Dr David Edis, orthopaedic and spine surgeon, dated 18 July 2023. Dr Edis reported that after some initial improvement since he started physiotherapy, the plaintiff’s pain had returned to “a very high level”. He said the plaintiff denied any pain radiating down his leg, but had experienced a dull pain in his toes to the thighs that is intermittent and feels uncomfortable, and this has often been at night time. He noted that the plaintiff had one attempt at returning to work after about three months, but was unsuccessful due to his pain and “emotions”. He noted that the plaintiff reported that physiotherapy only gives him improvement for about a week or so. His current lifting limit is under 2 kilograms.
37Dr Edis noted that an MRI scan taken on 2 June 2023 demonstrated reduced disc height at both L4-5 and L5-S1 with a posterior disc bulge but no significant neurocompressive lesion. Dr Edis had recommended that the plaintiff undergo an epidural steroid injection; however, the plaintiff was unsure whether or not he wanted to undergo that treatment.[138]
[138]Ex P1, pp41-42
38The plaintiff relied upon two reports from Dr Hazem Akil, neurosurgeon: the first report, dated 6 May 2024, provided in Dr Akil’s capacity as a treating neurosurgeon, and the second, dated 12 March 2025, in a medico-legal capacity. In the medico-legal report, Dr Akil noted that the plaintiff described –
“… a persistent lower back pain affecting both sides of the lumbosacral region, more on the left than the right.”
39He continued:
“The pain radiates towards his left leg all the way to the knee and associated with paraesthesia from below the left knee all the way down to the foot. The pain [also] radiates … up towards the upper part of his body and affecting his left arm. He described that this pain started about seven months ago.”[139]
[139]Ex P1, p46
40Dr Akil diagnosed the plaintiff as suffering from elements of aggravation of lumbar spondylosis. He noted that the surveillance footage with which he had been provided “did show someone who is able to sit and squat and bend normally”. He noted that the surveillance was dated October 2024, which could have been at a time where he had minimal pain and exacerbation. Dr Akil expressed the opinion that the plaintiff is “obviously in a severe pain as he is dependent on opiates”. He noted that the mechanism of injury as reported by the plaintiff “is compatible with aggravation of lumbar spondylosis”.[140]
[140]Ex P1, p47
41Dr Akil expressed the opinion that the plaintiff’s prognosis was “poor”. He said that the plaintiff suffers restrictions in relation to repetitive bending and lifting of heavy objects as well as prolonged sitting, standing or walking. He thought those restrictions would continue into the foreseeable future. He did not believe that the plaintiff would be fit to return in an unrestricted way to his pre-injury duties. He did not express an opinion as to the plaintiff’s capacity for suitable employment, deferring instead to an experienced occupational physician to give a suitable answer in relation to this matter.[141]
[141]Ex P1, pp47-49
42The plaintiff relied upon one medico-legal report from Dr Meena Mittal, pain physician and specialist anaesthetist, dated 23 November 2023. Dr Mittal noted that examination of the plaintiff’s lumbar spine revealed “evidence of severe paravertebral muscle spasm” and increased tenderness in the paravertebral region and bilateral lower lumbar spine. She noted left-sided sacroiliac joint tenderness and a positive result for facet joint loading bilaterally. She noted that an MRI scan of the lumbosacral spine dated 2 June 2023 revealed disc desiccation at the L4-5 level. She said the scan reported a left paracentral disc protrusion causing compression of the left L5 nerve root. She also noted that there was mild to moderate facet joint arthropathy at the same level. She said that at the L5-S1 level, there was noted to be disc desiccation with an asymmetrical disc bulge which is more left-sided in contact with both S1 nerve roots but slightly more on the left-hand side. There was also mild facet joint arthropathy at this level.[142]
[142]Ex P1, p51
43Dr Mittal expressed the opinion that the plaintiff was presenting with persistent low back pain and left lower limb pain. She thought that the lower back pain was secondary to myofascial spasm, and very likely discogenic in origin. She thought the role of the facetogenic pain was currently unclear. She thought the left lower limb pain was secondary to left L5 radicular pain.[143]
[143]Ex P1, p51
44The plaintiff relied upon three reports from Dr Ali Kian Mehr: the first dated 19 July 2024, the second dated 29 January 2025, and the third dated 7 April 2025. In the second report, Dr Mehr expressed the opinion that the plaintiff is suffering from chronic lumbar spine pain as a result of discogenic pain and left S1 radiculopathy.[144] Dr Mehr expressed the opinion that the plaintiff has no capacity for pre-injury work or any other physical work, and that this would remain unchanged for the foreseeable future.
[144]Ex P1, p57
45In relation to suitable employment, Dr Mehr thought that the plaintiff had no capacity for alternative work, firstly, because of his physical and psychological limitations, and, secondly, because of his language barrier and lack of suitable qualifications and education.[145]
[145]Ex P1, pp57-58
46Dr Mehr noted that the plaintiff suffers from a significant limitation of sitting and standing, and also an inability to bend, squat and lift. He thought that these restrictions would persist into the foreseeable future.[146]
[146]Ex P1, p59
47The plaintiff relied upon one report from Dr Pouya Hafezi, specialist pain medicine and rehabilitation physician, dated 11 March 2025. In that report, Dr Hafezi diagnosed the plaintiff as suffering from a symptom duration of greater than three months, likely to be due to an underlying disease/pathology and resultant nociceptive stimulus. She thought that the diagnosis was, therefore, “chronic secondary axial spine (lumbar) pain associated with structural changes of moderate-marked severity”. She thought that the specific source of the symptoms was most likely the lumbar intervertebral disc.[147] She expressed the opinion that “more likely than not ... [the plaintiff’s] employment caused and continues to contribute to the lumbar spine injury”.[148] She expressed the opinion that, on the balance of probabilities, the plaintiff’s lumbar spine injury has an organic basis, supported by objective findings and consistent clinical presentation. She thought that the persistence or worsening of symptoms may be multifactorial, potentially involving both organic and secondary pain mechanisms such as central sensitisation, psychological distress or biomechanical compensation patterns.[149]
[147]Ex P1, p62
[148]Ex P1, p62
[149]Ex P1, p63
48Dr Hafezi expressed the opinion that the plaintiff does not have any capacity to perform his pre-injury duties. In addition, based on his longstanding lumbar spine injury, she thought that it is unlikely that he has a realistic capacity for suitable employment on a permanent, reliable and consistent basis as a settled member of the workforce, without a significant risk of re-injury or deterioration.[150] Dr Hafezi expressed the opinion that while symptomatic variations may occur in relation to the plaintiff’s physical symptoms, “the overall trajectory suggests that meaningful long-term recovery or full functional restoration is improbable”.[151]
[150]Ex P1, p63
[151]Ex P1, p64
49The plaintiff relied upon one medico-legal report from Professor Richard Bittar, consultant neurosurgeon, dated 3 May 2025. In that report, Professor Bittar noted that the plaintiff reported the following symptoms:
“1.Lower back pain. His lower back pain is intermittent, being fairly constant if he does not take any pain medications, but occurring at least five to six hours per day if he takes medications. His lower back pain radiates across the lumbosacral junction and is worse on the left-hand side. It varies in character between sharp, burning, gnawing, and aching. It has an average severity of 5/10 and a maximum severity of 10/10. His back pain is exacerbated by bending, lifting more than two kilograms, pushing or pulling, sitting for more than short periods (depending upon the type of chair), standing for more than ten minutes, and walking for more than fifteen to twenty minutes. It improves with recumbency, heat packs, and medications. He finds it painful to look after himself, and he needs to be slow and careful. He can lift heavy objects; however, this does cause him additional pain. He cannot walk more than two kilometres and cannot sit for more than thirty to sixty minutes in general. He cannot stand for more than ten minutes. Due to pain, he has less than four hours of sleep per night. His back pain has restricted his social life, and he does not go out as often. He can travel; however, this causes additional pain.
2. Left leg pain. He experiences intermittent pain radiating into his left leg, with each episode occurring with variable frequency depending upon his activities, particularly sitting. His leg pain can last thirty to sixty minutes and is generally sharp or burning in character. It has an average severity of around 2/10, and he found it difficult to quantify its maximum severity. His leg pain radiates through his left buttock into the lateral aspect of his left thigh. When he sits for long periods and then gets up, he experiences weakness in his left thigh.”[152]
[152]Ex P1, p81
50Professor Bittar noted that the plaintiff’s current medications are as follows:
“- Targin 10/5mg once or twice weekly (reduced from daily)
- Oxazepam 15mg twice weekly (reduced from daily)
- Duloxetine
- Amitriptyline 10mg once weekly- Voltaren 50mg twice daily.”[153]
[153]Ex P1, p81
51Professor Bittar noted that the plaintiff is engaging in physiotherapy weekly at the Dandenong Superclinic. The plaintiff said that this provides “temporary relief sometimes, but not consistently”.[154] Professor Bittar also noted that the plaintiff is seeing a psychologist “via Medicare”.[155]
[154]Ex P1, p82
[155]Ex P1, p82
52As to the effects of the plaintiff’s current symptoms, Professor Bittar noted that the plaintiff socialises much less than he previously did, due to difficulty with prolonged sitting and standing. He noted that the plaintiff misses social interaction, but finds that this activity increases his back pain. He noted that the plaintiff’s recreational activities are severely impacted. The plaintiff had previously enjoyed playing soccer in Afghanistan and had hoped to resume playing in Australia. Now he struggles with soccer, due to pain from kicking and running. Professor Bittar noted that the plaintiff’s sleep is severely impacted and that he frequently experiences daytime tiredness. Professor Bittar noted that the plaintiff reports his domestic activities are impacted, including his ability to garden, shop, clean and cook. Overall, Professor Bittar noted that the plaintiff’s quality of life is “severely diminished”.[156] On examination, Professor Bittar noted bilateral lumbar paravertebral muscle spasm and tenderness over the lumbosacral junction on both sides. Professor Bittar noted that there was no abnormal illness behaviour demonstrated during the examination.[157]
[156]Ex P1, p82
[157]Ex P1, p83
53Professor Bittar diagnosed the plaintiff as presenting with aggravation of lumbar spondylosis with ongoing lower back pain and referred leg pain. He expressed the opinion that the lumbar spine injury is work related, specifically to the incident which occurred at work on 31 January 2023. He thought this remained a significant contributing factor to the plaintiff’s current condition. He thought the plaintiff’s prognosis remained poor due to the chronic and fluctuating nature of his pain and the limited response to treatment. He thought that the plaintiff is incapacitated for his pre-injury duties as a result of his work-related lumbar spine condition. He did not think that the plaintiff had any capacity to undertake suitable employment on a reliable and consistent basis as a settled member of the workforce, without a significant risk of re-injury or deterioration.[158]
[158]Ex P1, p84
54Professor Bittar was provided with the surveillance footage from October 2024. He noted that in the footage, the plaintiff was shown standing next to a car, speaking on a mobile phone. He observed that the plaintiff bent forward to pick up an object off the ground. He noted that the range of lumbar spine motion – both flexion and extension – appeared greater in the surveillance footage taken on 27 October 2024 than it was when he examined the plaintiff. He said that he questioned the plaintiff about this, and the plaintiff indicated that there had been a significant deterioration in his condition since the time that the surveillance footage was taken, particularly over the past month prior to seeing Professor Bittar. Professor Bittar noted that on the surveillance footage, the plaintiff was also shown driving a van, sitting for a short period on a portable chair in a park, and then sitting on the ground eating a meal. He said that the plaintiff indicated that on that particular day, he had taken additional pain medication in order to be able to enjoy the time with his family and friends, and that his pain levels increased following this outing. He reported to Professor Bittar that he generally takes more medication before such outings, and “puts up with the pain afterwards”.[159]
[159]Ex P1, p84
55In conclusion, Professor Bittar expressed the opinion that as a consequence of his spinal injury, the plaintiff will continue to be restricted in his activities of daily living, including sleep, domestic, social and recreational activities, and his overall enjoyment of life. He considered that these impacts on the plaintiff’s enjoyment of life were permanent, in that they would continue into the foreseeable future. He also expressed the opinion that the plaintiff’s current work restrictions for either pre-injury duties or suitable employment were also permanent.[160]
[160]Ex P1, pp85-86
56The plaintiff relied upon one report from Dr Kilner Brasier, occupational and environmental specialist physician, dated 19 June 2025. I note that at the commencement of his report, Dr Brasier specifically stated that in providing his opinion, he had “read and incorporated the documentation” with which he had been provided.[161] Later in the report, Dr Brasier specifically stated that he had “reviewed [the] surveillance footage provided to me”.[162] That surveillance footage was dated 27 October 2024.[163] For the purposes of preparing his report and opinion, in addition to reviewing the documentation and surveillance footage, Dr Brasier personally interviewed and examined the plaintiff.[164]
[161] Ex P1, p87
[162] Ex P1, p89
[163] Ex P1, p95
[164] Ex P1, pp85 and 91
57Dr Brasier diagnosed the plaintiff as suffering from a chronic aggravation of lumbar spondylosis. He said that while there was possible left L5 nerve root irritation, there was no evidence of radiculopathy. He thought that the plaintiff’s lumbar spine injury was consistent with the stated cause.[165] Dr Brasier expressed the opinion that the nature of the plaintiff’s employment and the particular incident described was the cause, and continues to be the cause, of his lumbar spine injury.[166]
[165]Ex P1, p92
[166]Ex P1, p92
58Dr Brasier was of the opinion that by reason of the plaintiff’s spinal injury alone, the following restrictions should be imposed upon him:
“-lifting and carrying limited to 5 kg;
- avoid heavy or repetitive pushing or pulling;
- avoid bending, twisting or stooping;
- avoid kneeling, squatting or crouching;
- avoid prolonged sitting or standing;
- avoid running or jogging;
- avoid walking up inclines or down declines or over uneven ground;
- avoid use of ladders or elevated platforms; and
- avoid driving a motor vehicle for periods greater than 45 minutes.”[167]
[167]Ex P1, p92
59Dr Brasier thought that these restrictions could be regarded as permanent and likely to persist into the foreseeable future.[168]
[168]Ex P1, p92
60Dr Brasier concluded that the plaintiff had no capacity for work in his pre-injury duties. He thought this incapacity was permanent and likely to last for the foreseeable future.[169]
[169]Ex P1, p93
61Dr Brasier was asked to consider whether or not the plaintiff had the capacity to perform any of the proposed suitable employment set out in the defendant’s vocational planning and assessment reports. Relevantly to this case as it proceeded at trial, those roles were:
(a) car park attendant;
(b) service adviser; and
(c) ticket collector or usher.
62Dr Brasier expressed the opinion that the plaintiff did not have any work capacity for the abovementioned vocations. He thought that in relation to each of these roles, the plaintiff would be prevented from performing these duties by reason of his lumbar spine functional limitations that affect his driving, walking, standing, sitting, bending, and his inability to maintain static body postures. He thought that this incapacity was permanent and likely to last for the foreseeable future.[170]
[170]Ex P1, pp93-94
63The plaintiff relied upon an email from an employee of WorkAble Consulting, dated 6 February 2025 to the plaintiff. That email stated:
“…
I have received your current certificate which advises you have no capacity at this time.
Unfortunately I am not able to assist you further with English skills training as your certificate with no capacity does not allow for training.”[171]
[171]Ex P2
The Defendant’s medical evidence
64The defendant relied upon one report from the plaintiff’s general practitioner, Dr Ebrahim Hosseini, dated 17 February 2025. In that report, Dr Hosseini expressed the opinion that psychological factors were playing “a part” in the plaintiff’s current pain presentation. In the report, it was noted that Dr Hosseini had been asked to express an opinion as to the suitability of certain roles proposed by the defendant as suitable alternative employment. Dr Hosseini expressed the view that roles that would be suitable for the plaintiff included service adviser, car park attendant, ticket collector/usher and checkout operator. He thought that the plaintiff would require appropriate training and regular breaks for stretching and pain-management considerations in relation to all of these roles. Dr Hosseini expressed the opinion that the plaintiff’s limited English proficiency, which constitutes a language barrier, may impact his ability to engage in roles requiring significant interpersonal interaction. He thought that the plaintiff required further participation in a pain-management program, psychosocial support, and English-language training.[172]
[172]Ex D1, pp23-25
65The defendant relied upon two medico-legal reports from Dr Elie Khoury, consultant orthopaedic surgeon: the first dated 15 August 2023, and the second dated 3 November 2023. In the first report, Dr Khoury noted that the plaintiff’s back pain was consistent with severe muscular spasm and facet joint arthritis with minimal, if any, nerve root compression symptoms or signs. He noted that the condition was then worsening, despite treatment. He thought that the plaintiff was not presently fit for work. He thought that the plaintiff needed to be rehabilitated appropriately, but that he may never return to heavy physical labour. He said that “Unfortunately, because he is not educated to a level beyond Year 10, [the plaintiff] may have difficulty with re training”.[173] He expressed the opinion that the plaintiff’s condition had been caused by lifting as described in the course of the plaintiff’s work.[174]
[173]Ex D1, p31
[174]Ex D1, p32
66In relation to the plaintiff’s work capacity, Dr Khoury expressed the opinion that the plaintiff did not have any capacity either for pre-injury duties or suitable employment because he is unable to bend, lift, sit or stand for prolonged periods of time. He said that the plaintiff cannot lift at all, and cannot perform any physical work, and his level of education may preclude him performing duties in desk work and data entry on a computer. He did not think there were any modified pre-injury or alternative duties which the plaintiff would be able to perform.[175] He did not think that the plaintiff had any capacity for any duties, including any light duties.[176]
[175]Ex D1, p33
[176]Ex D1, p34
67I note that while he is not a qualified psychiatrist, in his first report, Dr Khoury expressed the opinion that there was an “overlay of psychological issues for which [the plaintiff] is seeing a psychologist”, that the psychological issues were causing significant problems, that these needed to be dealt with and that the plaintiff’s mental illnesses had “potentiated” the plaintiff’s inability to return to work.[177] Given Dr Khoury’s lack of qualification to express such an opinion, together with his failure to articulate the factual basis of the views that he expressed, I place no weight on these observations.
[177] Ex D1, p30-31 and 33
68In the second report, Dr Khoury commented on the fact that he had been shown surveillance footage taken on 23 July 2023. He said that in the surveillance footage, the plaintiff did not demonstrate any sign of pain or any levels of discomfort or restrictions. He said that the plaintiff’s presentation on examination was “in contrast to the surveillance footage which was seen”.[178] On that basis, Dr Khoury expressed the opinion that the injury was no longer a materially contributing factor to the plaintiff’s current presentation. He also changed his opinion in relation to the plaintiff’s work capacity, expressing the view that the plaintiff does have a capacity for pre-injury duties and hours.[179]
[178]Ex D1, p40
[179]Ex D1, p40
69The defendant relied upon one medico-legal report from Dr Prabal Kar, consultant psychiatrist, dated 3 April 2024. In that report, Dr Kar expressed the opinion that the plaintiff is not suffering from any psychiatric condition that affects his psychiatric capacity to perform any suitable work that he feels motivated to do. He thought that there was evidence of inconsistencies in the plaintiff’s presentation, such as those found in the surveillance footage dated August 2023. He noted that pain is “an entirely subjective experience”. He thought that the plaintiff is unmotivated for work and may exaggerate his pain, as there is no objective way to measure it.[180]
[180]Ex D1, p51
70The defendant relied upon an MRI scan taken of the plaintiff’s cervical spine on 14 February 2025. This scan reported identified the existence of right preforaminal narrowing and potentially irritation/compromising the right C6 nerve roots.[181] While there is no doubt that earlier in 2025, the plaintiff complained of pain in his cervical spine, which lead to this investigation, nevertheless, I note that the consequences of any cervical spine compromise were not relied upon to any extent by the plaintiff in this application.
[181] Ex D1, p21
71The defendant relied upon three reports from Dr Joseph Slesenger, specialist occupational physician: the first dated 2 September 2024, the second dated 21 January 2025 and the third dated 19 June 2025. In the first report, after assessing the plaintiff, Dr Slesenger concluded that the plaintiff had suffered a soft-tissue injury and aggravation of degenerative disease in his lumbar spine. He thought that the plaintiff was suffering from chronic lower back pain with radiating features, but no confirmed evidence of radiculopathy. Dr Slesenger was satisfied that the plaintiff’s current impairment related to the alleged injury. He thought that the aggravation had not yet resolved. He was of the opinion that the plaintiff’s current impairment was materially contributed to by the injury suffered in the workplace. He based this opinion upon the history given to him, his examination of the plaintiff and the imaging findings. He thought that the plaintiff would be unable to return to his pre-injury duties working pre-injury hours. He thought that the plaintiff, at that time, retained a capacity for work with restrictions, namely:
“● No push, pull, carry or lift over 5 kg on a repetitive basis and 10 kg on an occasional basis.
● Avoid repetitive bending and twisting.
● Avoid prolonged static postures.
● Avoid exposure to whole body vibration.”[182]
[182]Ex D1, pp63-64
72Dr Slesenger thought, in 2024, that the plaintiff would be able to return to work, working four hours a day, four days a week, graduating back to pre-injury hours over a six-week period. He thought the plaintiff should be reviewed in three to four months to address his progress.[183]
[183]Ex D1, p64
73In his second report, Dr Slesenger was asked to consider certain duties which may be suitable for the plaintiff and to provide his professional opinion in relation to those potential roles. Relevantly to this case as it proceeded at trial, these roles were: carpark attendant, service adviser and ticket collector or usher.[184]
[184]Ex D1, p70
74Dr Slesenger expressed the view that the plaintiff did have the capacity to return to work as a carpark attendant, ticket collector or usher, and service adviser. He noted that undertaking those roles would be subject to “adhering to the restrictions outlined above”. Those restrictions were the same restrictions that he had set out in his report in 2024, namely restrictions on pushing, pulling, carrying or lifting, repetitive bending and twisting, prolonged static positions and exposure to whole-body vibration. Similarly, the hours were restricted to four hours per day, four days per week, graduating back to pre-injury hours over six to eight weeks.[185]
[185]Ex D1, pp70-71
75In his third report, Dr Slesenger again expressed the opinion that that the plaintiff would never have the capacity to return to pre-injury duties, but does have the capacity to return to work as a carpark attendant, ticket collector or usher, and service adviser, adhering to the restrictions previously referred to.[186] He also noted the following matters and expressed the following opinions:
(a) the plaintiff has poor English skills and no computer skills;[187]
(b) the plaintiff adjusted his posture regularly when interacting with Dr Slesenger during the consultation in 2025;[188]
(c) the plaintiff walked with a right-sided pronounced limp;[189]
(e) the plaintiff had no history of pre-existing impairment;[190]
(f) as a result of the examination in 2025, there were some concerns with the plaintiff’s presentation (which Dr Slesenger considered to be “significant”), including the “evolving symptoms distal to the site of the initial injury, namely cervical spine with radiating symptoms”. Dr Slesenger also noted “a number of inconsistencies on examination”. On this basis, he concluded that there is “at least in part” a functional element to the plaintiff’s presentation;[191]
(g) notwithstanding this, he again expressed the opinion that the aggravation of pre-existing asymptomatic degenerative disease in the lumbar spine has persisted and is “materially contributed to by the injury under consideration and continues to materially contribute to [the plaintiff’s] current impairment and disability”;[192]
(f) overall, he thought that the prognosis for the plaintiff “must be guarded given the length of [his] impairment and disability and his poor response to treatment to date”.[193]
[186] Ex D1, p94
[187] Ex D1, p84
[188] Ex D1, p84
[189] Ex D1, p85
[190]Ex D1, p90
[191] Ex D1, pp91 and 93
[192] Ex D1, pp92-93
[193] Ex D1, p91
76The defendant relied upon two reports from Mr Michael Dooley, orthopaedic surgeon: the first dated 4 September 2024 and the second dated 8 July 2025. In the second report, after reviewing the both the July 2023 and October 2024 video surveillance footage with which he had been supplied,[194] Mr Dooley expressed the opinion that the plaintiff had suffered a soft-tissue injury to his lumbar spine in the course of his work in January 2023, which involved some aggravation of underlying degenerative disc change and may have involved a left-sided disc prolapse at the L4-5 level. He noted that following the incident, the plaintiff described severe ongoing lower back pain and significant issues with his mental health. Mr Dooley expressed the opinion that the constancy and intensity of the plaintiff’s ongoing pain and his described disability “were greater than one would expect to see for his organic condition”. He also noted that there were “inconsistent signs in relation to assessing power of the left lower limb”.[195]
[194] Ex D1, p101
[195]Ex D1, p101
77Mr Dooley noted that:
“The surveillance footage shows … [the plaintiff] walking at a comfortable pace. It shows him bending into the side and rear of a motor vehicle. It shows him getting into the back of a motor vehicle, a people-mover, to clean it. When standing outside the rear of the motor vehicle, he is able to flex his lumbar spine comfortably forward. When in the squatting position he can lean side to side and rotate. He walks reasonable distances. He socialises with a group of friends and is able to sit comfortably and get up from a seated position comfortably. At no time during any of the surveillance footage does … [the plaintiff] appear to be in pain.”[196]
[196]Ex D1, p101
78Ultimately, Mr Dooley expressed the opinion that the surveillance footage shows that the plaintiff is able to be active in general, is able to walk reasonable distances and would be able to undertake regular low-impact exercise. He expressed the opinion that the surveillance footage confirms his earlier expressed opinion that the plaintiff has a physical capacity to engage in at least light physical work and clerical-type work.[197]
[197]Ex D1, p102
79The defendant relied on extracts from the clinical notes of DM Clinic Mulgrave and Rise Health Group. The substance of the relevant portion of these records demonstrated that the plaintiff:
(a)suffered from pre-existing mental health issues prior to the incident;[198]
[198]Ex D1, p176
(b)has suffered from lower back pain of varying degrees since 31 January 2023;[199]
[199]Ex D1, p177
(c)did not initially suffer from referred pain into his legs;[200]
[200]Ex D1, p178
(d)has been prescribed medication to manage his lumbar back pain since 31 January 2023;[201]
[201]Ex D1, pp177ff
(e)has consistently rated his pain at 5/10 or above since 31 January 2023;[202]
[202]Ex D1, pp177ff
(f)has at times experienced pain which is described as “10/10”;[203]
[203]Ex D1, p182
(g)on one occasion, decided to try using a walking stick, although this had not been recommended by his physiotherapist;[204]
[204]Ex D1, p182
(h)has been at times very unhappy that his pain is ongoing and not well managed. In particular, he described experiencing pain sitting or standing, and that he cannot find a comfortable position;[205]
[205]Ex D1, p183
(i)has described his sleep as being affected by the ongoing lumbar pain;[206]
[206]Ex D1, pp185-186
(j)described himself as becoming “housebound due to pain” on 5 September 2023;[207]
[207]Ex D1, p187
(k)described himself as feeling tired, fatigued and socially isolated and stressed thinking all day about his problems;[208]
[208]Ex D1, p188
(l)on examination on 3 October 2023, was able to bend down, although he experienced a lot of pain and was also able to “squat with some pain”;[209]
[209]Ex D1, p188
(m)on 4 October 2023, had an epidural injection, but felt his pain worsened after that procedure;[210]
(n)at a consultation dated 17 October 2023, began to complain of right foot pain and pain in the right loin area;[211]
(o)was consistently described as depressed and anxious by his general practitioner during attendances;[212]
(p)continued to try to manage his pain by doing exercises, engaging in daily walking and attending physiotherapy;[213]
(q)on 31 May 2024, attended his general practitioner complaining that he had tried everything and continued to experience “too much pain” and insomnia;[214]
(r)on 21 June 2024, was again diagnosed with insomnia and attended to receive a mental health care plan from his general practitioner;[215]
(s)on 22 June 2024, described his pain as being “10/10” to his general practitioner and stated that when he takes his medication, the pain would reduce to “5/10”;[216]
(t)during a consultation on 8 July 2024, was noted to be frustrated and helpless and suffering from ongoing pain despite injections, together with loss of appetite and memory issues, which were noted as “side effects of pain medications” he was then taking;[217]
(u)on 22 August 2024, described himself as being unable to bend due to pain, but was noted to be “able to do cobra on the bed” and was encouraged by his general practitioner to do more advanced exercises;[218] and
(v)on 17 September 2024, was noted to be able to sit, stand and squat.[219]
[210] Ex D1, p188
[211]Ex D1, p189
[212]Ex D1, p190
[213]Ex D1, p192
[214]Ex D1, p194
[215]Ex D1, p195
[216]Ex D1, p196
[217]Ex D1, pp196-197
[218]Ex D1, p199
[219]Ex D1, p200
80The defendant placed particular reliance on four entries in the DM Clinic Mulgrave medical records: the first dated 7 October 2024, the second dated 17 October 2024, the third dated 8 November 2024 and the fourth dated 11 November 2024.
81In the medical note dated 7 October 2024, the plaintiff was noted to be suffering from pain that was ongoing and worsening over the last twenty months. He was prescribed various medications, including Serepax, to help with sleep.[220]
[220]Ex D1, p286
82In the medical note dated 17 October 2024, the plaintiff attended to discuss a return-to-work report which had been supplied at that time. The plaintiff expressed the view that he was unable to work the recommended hours and days due to severe pain that is not controlled. He was assessed as suffering from chronic lower back pain and psychological impairment. It was noted that he became angry when it was suggested to him that he could return to work in some capacity. It was noted that the plaintiff apologised to the general practitioner for his conduct during that consultation.[221]
[221]Ex D1, p287
83In the consultation dated 8 November 2024, the plaintiff attended Dr Hosseini for a return-to-work meeting. He was diagnosed as suffering from significant reactive depression following his back injury, together with significant frustration, helplessness and hopelessness. He reported a new complaint of pain in his arms, forearms and wrists which was affecting his sleep. It was noted that his mental health was also affecting his sleep. He was noted to be opposed to the notion that he had any ability to engage in any form of alternative employment. He reported that he wanted to speak English only for communication purposes and was not prepared to retrain to do any other job. He reported that he thought TAFE attendance would be challenging due to difficulty sitting for sixty to ninety minutes and the need to stand up frequently due to back pain. The general practitioner recommended that he attend for one-on-one English skills training in the community and to try work in a setting that allowed him to sit and stand as needed.[222]
[222]Ex D1, p288
84In the note of the attendance on 11 November 2024, the plaintiff was noted to be suffering from lower back pain, was unable to bend fully and suffered severe pain on bending 45 degrees, with stiffness. It was noted that the plaintiff understood that WorkCover support may not last beyond two years and now realised that he may need to retrain to perform duties within his physical capacity.[223]
[223]Ex D1, p289
85The defendant relied upon two vocational reports, the first from Nabenet, dated 25 October 2024 and the second from WorkAble Consulting, dated 18 December 2024. During closing submissions, counsel for the defendant advised the Court that the only occupations which the defendant contended may constitute suitable roles for the plaintiff to return to work, were carpark attendant, ticket collector or usher and service adviser. To that extent, it is part of the content of the WorkAble vocational planning report which is relevant to this application.
86In that vocational planning report, the following relevant matters were noted in respect of the role of service adviser:
“● Constantly sits at a workstation and carries out a variety of both manual and computerised data entry and word-processing tasks and general office duties.
● …
●Use of hand-held objects such as pens, calculators and staplers, as well as telephones will also be occasional to frequent. Operates printers, copiers and a range of other office equipment and refills paper trays and ink supplies.
●Mental skills include recording, organisation, planning and communication.”[224]
[224]Ex D1, p281
87It was noted that training would be required in order to undertake this role.[225] It was agreed that the rate of pay for the role of service adviser is presently $26.70 per hour.[226]
[225]Ex D1, p281
[226]Ex P5, Flexi Personnel report dated 22 July 2025
88The following relevant matters were noted in respect of the role of carpark attendant:
“● Constantly sits or stands at sales counters or occasionally walks about the park assisting customers.
● Either manually or electronically enters customer charges into the till, receives payments and processes these and issues receipts. May issue customers sales invoices.
● …
● Use of minor office hand tools such as pens or calculators will be occasional.
● Mental skills necessary include calculating and communication skills.”[227]
[227]Ex D1, pp281-282
89It was noted that training would be required to undertake this role. It was agreed that the rate of pay for the role of carpark attendant is presently $25.52 per hour.[228]
[228]Ex P5, Flexi Personnel report dated 22 July 2025
90The following relevant matters were noted in respect of the role of ticket collector or usher:
“● Constantly sits or stands at sales counters or occasionally walks about the site assisting customers.
●Either manually or electronically enters customer purchases into the till, receives payments and processes these and issues receipts and ticket.
● …
●Repetitive hand and finger movements are necessary when operating electronic tills and issuing tickets.
● …
●Use of office hand-held objects such as pens, ticket checking tools or calculators will be frequent.
●Mental skills necessary including calculating and communication skills.”[229]
[229]Ex D1, p282
91Training was noted as being a requirement for this role. It was agreed that the rate of pay for the role of ticket collector is presently $24.95 per hour.[230]
[230]Ex P5, Flexi Personnel report dated 22 July 2025
The issues
The Plaintiff’s credit
92The plaintiff’s credit was challenged extensively during cross-examination. In particular, the issue of which consequences are attributable to the plaintiff’s spinal injury, was explored in detail. In addition, the plaintiff was questioned at length about the difference in his presentation in the video surveillance, compared with his presentation to various doctors. The plaintiff’s evidence in relation to both of these issues, has been set out above.
93The defendant submitted, by reference to the content of the video surveillance, that the Court ought conclude that the plaintiff’s credit was so adversely affected, that “it infects the entire case resulting in dismissal of this application”.[231] In particular, counsel for the defendant submitted that a fair reading of the plaintiff’s affidavits, as well as an assessment of the histories given by him to the medical practitioners, “present a misleading picture … when adjudicated against the video [surveillance]”.[232] The defendant submitted that the Court ought to conclude that plaintiff is “injury focused” and “has a tendency to exaggerate or overstate his pain and restrictions.”
[231] T106, L24-27
[232] T125, L20-24
94In response, Senior Counsel for the plaintiff made the following submissions:
(a) as to credit, the plaintiff is an honest witness and his evidence should be relied upon by the Court for the following reasons:
(i)in the witness box, he made a number of admissions against interest;
(ii)despite the fact that English is his second language and he required an interpreter in Court, nevertheless, his viva voce evidence was generally responsive to the questions being asked of him;
(iii)the plaintiff’s viva voce evidence should be seen in light of the fact that he is suffering some degree of depression and/or anxiety and requiring medication for this;
(iv)while some medical practitioners have noted inconsistencies on examination, no medical practitioner suggests that the plaintiff is consciously exaggerating or feigning his presentation. In addition to this, I note that Professor Bittar specifically considered this issue and found that the plaintiff did not exhibit any abnormal illness behaviour;
(v)in relation to the cross-examination of the plaintiff concerning the clinical notes of Dr Hosseini, the following points are made:
(A)while the clinical notes frequently refer to significant pain, they do not paint a picture of total disablement. For example:
· bend down – pain squat – pain;[233]
[233] Ex D1, p188
· able to bend down and bend sideways;[234]
[234] Ex D1, p194
· no limp;[235]
[235] Ex D1, p196
· 10/10 without medication 5/10 with medication;[236]
[236] Ex D1, p196
(B)so far as that it is suggested by the defendant that the clinical notes paint a picture of extreme disability, this is not reflected in the general practitioner’s opinions expressed in his medical reports:
·“might manage a sedentary role involving office desk work or attending meetings” (as at July 2024);[237]
[237] Ex P1, p38
·fit for part-time work with restrictions (as at November 2024).[238]
[238] Ex D1, p24
(b) in submissions in relation to the 2023 video surveillance:
(i)it shows the plaintiff squatting and bending for a short period of time;
(ii)it is taken at a time when the plaintiff was requiring Panadeine Forte medication four hourly.[239] The plaintiff’s evidence is that the pain-relieving medication reduces his symptoms;[240]
[239]Ex P4 and Ex D1, p186
[240]T62
(iii)at about the time the video surveillance was taken, the plaintiff had agreed to undertake an epidural injection which was performed in October 2023. This is inconsistent with the plaintiff suffering no pain or symptoms referable to his back injury;
(iv)the clinical records of the plaintiff’s general practitioner include reference to the plaintiff being able to bend and squat (with pain);[241]
[241]Ex D1, p188
(c) in relation to the 2024 video surveillance, the following points are made:
(i)the plaintiff is generally inactive. The video was taken over many hours with significant breaks in the video;
(ii)contrary to the suggestion of the defendant, the video surveillance does not show the plaintiff “continually sitting for hours”;
(d) in relation to both pieces of video surveillance:
(i)the short portion of film that was shown to the Court, is part of forty-five hours of surveillance taken over eight days;
(ii)even if the Court does form the opinion that there are inconsistencies between what is shown in the video surveillance and the plaintiff’s histories to doctors, the video surveillance itself is not reflective of a capacity to perform work when all the evidence is taken into account;
(iii)Professor Bittar, Dr Akil and Dr Brasier were shown the 2024 film and still concluded that the plaintiff had no work capacity;
(iv)Dr Khoury was only shown the 2023 video and forms the opinion that as at November 2023, the plaintiff was no longer suffering a compensable injury and had the capacity to return to pre-injury duties. Dr Khoury did not explain the reasons why he reached this conclusion. It was asked rhetorically how a medical expert could reach this conclusion, having seen the results of the MRI scans of the plaintiff’s lumbar spine and in the knowledge of what was involved in his pre-injury duties, which consisted of extremely heavy lifting. Given this, the Court should conclude that this opinion is against the weight of the evidence and should reject it; and
(v)Mr Dooley is the only medical practitioner who has examined both the 2023 and 2024 video surveillance. After watching this video surveillance, he formed the opinion:
·that the plaintiff did not require pain management treatment or formal orthopaedic treatment; and
·that the plaintiff had a physical capacity to engage in light physical work and clerical-type work.
He did not express any change in opinion concerning the veracity of the plaintiff’s account of events, his credibility generally or the diagnosis of the injury.
95Having considered all of the evidence concerning these issues, together with the submissions made by both parties, I prefer the submissions made by the plaintiff as to credit.
96Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that in general, he was an honest and cooperative witness who appeared to be doing his best to give accurate responses to the questions asked of him, notwithstanding his evident language difficulties. I find that during cross-examination, while at times he became irritable and somewhat impatient with the cross-examiner, nevertheless, he gave his evidence openly. In addition, I agree with the plaintiff’s submissions and find that the plaintiff made concessions where necessary, many of which were adverse to his own interests.
97In relation to the inconsistencies between his evidence as to his present incapacity and his presentation in the video surveillance, I note the evidence given by Professor Bittar, who explicitly explored this matter with the plaintiff. I also note the plaintiff’s evidence to the Court that “… some time if I have to do it then I have to bear the pain and I have to do it, I have no choice”. I accept this evidence and find that, consistent with what the plaintiff set out in his affidavits and has reported to his treating medical practitioners, his back pain, while always present, varies in intensity. He manages the need to participate in certain activities (such as attending a picnic with his family), by taking additional medication, and putting up with consequences of the additional pain that he experiences afterwards. I note, in particular, the evidence given by the plaintiff and accept, that on the day of the picnic shown in the video surveillance in October 2024, because he began experiencing pain after sitting on the ground for some time, he went to his car to lie down to rest. This explanation was consistent with the account of events which the plaintiff gave to the Court and to the medico-legal expert who has assessed him for the purposes of this case, about the ways in which he manages his pain.
98Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
99After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the content of the medical reports, I consider that he was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court or to exaggerate his symptoms in any way.
Compensable injury
100The details of the occurrence of the incident are not in dispute, however, the nature of the injury suffered by the plaintiff was contested.
101In closing submissions, counsel the defendant acknowledged that the plaintiff “does have elements of aggravation of lumbar spondylosis”, but submitted that “the best that can be said is that this is a low level back injury”.[242]
[242] T105, L6-9
102The plaintiff submitted that this later conclusion would be against the content and weight of the medical evidence.
103I accept the plaintiff’s submission in this regard and note the following significant medical evidence which was unchallenged:
(a) the content of the of the two MRI scans taken of the plaintiff’s spine following the incident. The first is dated 2 June 2023 and reports a “central and left paracentral disc protrusion … which is causing compression of the L5 nerve on the left side” and a “mild disc bulge” at L5-S1, which “is in contact with both S1 nerves, slightly more on the left side … .” The second is dated 15 August 2024, and shows a “midline annular tear” at L4-5 and L5-S1;[243]
(b) the opinions of the plaintiff’s treating doctors, who each concluded that the plaintiff had suffered an injury to his lumbar spine which had a substantial organic basis, including Dr Akil (disc prolapse;[244] annular tear at L4-5 and L5‑S1;[245] aggravation of lumbar spondylosis),[246] Dr Hafezi (chronic secondary axial spine (lumbar) pain associated with structural changes of moderate-marked severity in the lumbar discs),[247] Dr Mittal (disc desiccation at L4-5 and disc protrusion causing compression of the left L5 nerve root),[248] and Dr Mehr (discogenic pain with left S1 radiculopathy);[249] and
(c) the opinions of the medico-legal experts, including those giving evidence for the defendant, who also concluded without exception, that the plaintiff had suffered an injury to his lumbar spine which had a substantial organic basis, viz: Dr Brasier (chronic aggravation of lumbar spondylosis with possible L5 nerve root irritation),[250] Professor Bittar (aggravation of lumbar spondylosis),[251] Dr Slesenger (soft tissue injury, aggravation of degenerative disease in the lumbar spine with left leg radiating features)[252] and Mr Dooley (aggravation of degenerative disc change which may involve left sided disc prolapse at L4-5 level).[253] I note that the opinion of Mr Dooley was not altered after he viewed the video surveillance relied upon by the defendant in this matter.
[243] Ex P1, p70
[244] Ex P1, p43
[245] Ex P1, p47
[246] Ex P1, o47
[247] Ex P1, p62
[248] Ex P1, p 51
[249] Ex P1, p57
[250] Ex P1, p92
[251] Ex P1, p84
[252] Ex D1, p92
[253] Ex D1, p101
104Having considered all of the evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on both sides, I am satisfied that as a result of his employment with the employer, the plaintiff suffered an injury to his spine which has a substantial organic basis, namely aggravation of lumbar spondylosis with ongoing lower back pain.[254]
[254]Ex P1, p84
Is the compensable injury permanent for the purposes of the Act?
105Having considered the relevant reports, and in particular the reports from Dr Khan,[255] Dr Akil,[256] Dr Mehr,[257] Dr Hafezi[258] and Dr Slesenger,[259] I find that the plaintiff is likely to suffer from the consequences of his lumbar spine injury sustained while working for the employer, for the foreseeable future. Given this, I find that the injury is permanent for the purposes of the Act.
Are the consequences to the Plaintiff of the spinal injury “serious”?
Does the evidence allow the Court to reach a conclusion about the consequences of the spinal impairment?
[255]Ex P1, p40
[256]Ex P1, p48
[257] Ex P1, p59
[258]Ex P1, p64
[259] Ex D1, p91
106In his closing address, counsel for the defendant submitted that on the basis of the evidence as it stands, the Court:
(a) should be satisfied that the plaintiff suffers from a longstanding psychological condition;
(b) should reject the plaintiff’s account of the consequences which he says arise from his lumbar injury, since his credit has been irreparably impeached; and
(c) cannot be satisfied about what consequences from which the plaintiff says he now suffers, are consequences of the physical injury which arose from the incident, and what are caused by his psychological condition.
107Counsel for the defendant placed particular reliance on the fact that the plaintiff failed to tender any evidence concerning the consequences of his psychological condition.
108In relation to this matter, Senior Counsel for the plaintiff submitted that the plaintiff is required to separately identify what physical injury he has suffered and what are the consequences of that injury. It was submitted that he has done this.
109As to the expert evidence which demonstrates the consequences to the plaintiff of his back injury alone, the plaintiff relied upon the opinions of:
(a)Dr Mehr (significant limitations of sitting and standing, bending, squatting and lifting); [260]
(b)Professor Bittar (ongoing lower back pain which is chronic and fluctuating, limitations with lifting, walking, standing and sitting and attending to his personal care, restrictions in his activities of daily living including sleep, social, domestic and recreational activities; incapacity for his pre-injury duties and no realistic capacity for suitable employment on a permanent, reliable and consistent basis without a significant risk of re-injury or deterioration); [261]
(c)Dr Brasier (limitations in lifting, carrying, heavy or repetitive pushing or pulling, bending, twisting, stooping, kneeling, squatting and crouching, sitting and standing, running and jogging, use of ladders and driving a car, incapacity for his pre-injury duties and for suitable employment) ;[262]
(d)Dr Housseini (limitations with sitting, standing, walking, bending, squatting, kneeling and lifting);[263] and
(e)Dr Slesenger (limitations with pushing, pulling, carrying, lifting, bending, twisting and holding static postures; no capacity for his pre-injury employment, limited capacity for suitable duties four days per week, four hours per day, within the stated restrictions).[264]
[260] Ex P1, p59
[261] Ex p1, pp84-86
[262] Ex p1, pp92-94
[263] Ex D1, p24
[264] Ex D1, p80
110I note that all of this evidence was unchallenged.
111Counsel for the defendant submitted that the Court should reject any medical opinion which did not specifically refer to the content of the video surveillance. In particular, the Court was urged by counsel for the defendant to reject Dr Brasier’s opinion as the consequences to the plaintiff of the injury to his lumbar spine and his residual work capacity, on the basis that Dr Brasier did not make specific reference to the content of the video surveillance video. Surprisingly, a similar submission was made in respect of the defendant’s own expert occupational physician, Dr Slesenger, whose reports the defendant nevertheless relied upon.
112I reject the submission made by counsel for the defendant. In particular, I note that in the body of his report, Dr Brasier specifically listed all of the material that he had read or otherwise taken into account in reaching the opinion he expressed in his report. Dr Brasier specifically confirmed that this material, which included the video surveillance dated 27 October 2024, “was considered in completing this report”.[265] Similarly, Dr Slesenger listed all of the material with which he had been supplied in order to provide his opinion, which material included “surveillance photos”[266] and at least one report that made specific reference to the existence and content of the video surveillance (report of Dr Akil, dated 12 March 2025).[267] Given this, there is simply no basis upon which the Court ought reject the opinions expressed by Dr Brasier or Dr Slesenger, either as to the consequences to the plaintiff of his lumbar spine injury or as to his present capacity for suitable employment.
[265] Ex P1, p94
[266] Ex D1, p56
[267] Ex D1, p75
113In addition to the content of the expert evidence relied upon by Senior Counsel for the plaintiff, I have already found the plaintiff to be witness of truth, who gave his evidence without exaggeration or embellishment, and who at times made significant admissions against interest. My conclusion as to the plaintiff’s credibility is strengthened by Professor Bittar’s assessment of the plaintiff as a “cooperative gentleman” who demonstrated “no abnormal illness behaviour”. I note that in expressing this opinion, Professor Bittar was not only aware of the surveillance footage taken in October 2024, but he also discussed its content with the plaintiff. Professor Bittar said that the plaintiff “indicated that on that particular day, he took additional pain medications in order to be able to enjoy the time with his family and friends, and that his pain levels increased following this outing. He reports that he generally takes more medication before such outings and ‘puts up with the pain afterwards’.” [268]
[268] Ex P1, p84
114Having considered all the relevant evidence, together with the submissions made by each party, I prefer the submission made the plaintiff in relation to this matter. Given this, I accept and find that by reason of his spinal injury alone, the plaintiff suffers from the following consequences:
(a) ongoing fluctuating pain and left leg pain, which is at times severe, necessitating the taking of Targin medication daily (10 milligrams and 5 milligrams per day). I note that the side effects of taking this medication include a negative effect on the plaintiff’s memory;
(b) necessity for treatment including epidural injection, physiotherapy and pain management;
(c) reduction in pain when taking pain medication but quite extreme pain when not taking medication;
(d) restrictions upon day-to-day activities including sitting or standing for prolonged periods, bending, twisting and lifting;
(e) restrictions upon his ability to sleep;[269]
(f) restrictions upon his ability to socialise as he would like to;[270]
(g) restrictions upon his ability to work and “contribute” to his family.[271]
[269]Ex P1, pp28-29
[270] Ex P1, p24
[271]Ex P1, p29
Loss of earning capacity
115I have considered the evidence which is relevant to the three roles that the defendant relies upon as constituting “suitable employment” for the plaintiff in the future, namely service advisor, ticket collector/usher and carpark attendant.
116In closing submissions, it was agreed that the plaintiff’s “without injury” earnings were $1,112 per week. Sixty per cent of that figure totals $667.20.
117At the commencement of closing addresses, the plaintiff applied to re-open his case, in order to tender a report from Flexi Personnel, in order to provide evidence of the hourly rates for each of the occupations relied upon by the defendant as constituting suitable employment for the plaintiff. After hearing submissions from each party and considering the relevant case law, I granted the leave sought to the plaintiff and the Flexi Personnel report was received into evidence.[272]
[272] Ex P5
118On the basis of the hourly earnings set out therein in relation to each of the three occupations relied upon by the defendant, it was agreed between the parties that if the Court finds that the plaintiff’s work capacity for that occupation, as at the date of the hearing, is 16 hours per week or less, then the plaintiff will succeed in respect of his claim for economic loss. Conversely, it was conceded by both parties that if the Court finds that the plaintiff has the capacity for full-time hours in any of those three roles, then the plaintiff’s claim in respect of economic loss must fail.
119With the exception of Dr Khoury in his second report, all of the medical experts were of the opinion that by reason of his lumbar spine injury alone, the plaintiff has no capacity for his pre-injury employment. It was submitted by Senior Counsel for the plaintiff, and I accept, that Dr Khoury’s opinion should be rejected as being against the weight of the evidence in this application. Further, I note that Dr Khoury has not examined the plaintiff for well over eighteen months and as such, I am unable to place any weight on his opinion as it does not take into account recent developments in the plaintiff’s presentation or indeed, comment on the plaintiff’s capacity for work as at the date of this hearing.
120Having considered all of the relevant evidence which has been set out in detail above, I am satisfied and find, that by reason of the consequences of his lumbar spine injury alone, the plaintiff has no capacity for any of the three roles which it has been submitted by the defendant constitute “suitable employment” for the purposes of the Act.
121I have reached this conclusion in respect of “suitable employment”, for a number of reasons:
(a) each of the three roles requires a degree of organisation, planning and, importantly, communication with customers in order to serve and assist them. The evidence satisfies me, and I find that:
(i)the plaintiff presently has insufficient English language skills to be able to perform any of the three roles;
(ii)at present, Work Able Consulting is not prepared to offer the plaintiff any training in English language skills, since his Certificate of Capacity does not cover training;[273] and
(iii)the plaintiff’s memory is affected by the medication which he is presently taking for his spinal pain;
[273] Ex P2
(b) each of the three roles requires the plaintiff to undertake training. In the absence of sound English language skills, the evidence satisfies me, and I find, that this requirement could not realistically be met by the plaintiff;
(c) lastly, each of the three roles requires the plaintiff to use office equipment and undertake tasks such as using a computer for data entry and word processing, using a calculator, and manually or electronically entering data into a till to receive and process payments and issue receipts, customer invoices or tickets. The evidence satisfies me, and I find, that the plaintiff has no past experience in any office environment, nor with using computers, calculators, tills or other office equipment. I have already found that his lack of English skills would be a barrier to the training required to perform the three occupations which have been identified. I have reached the same conclusion in relation to any suggestion that the plaintiff could be trained in the use of computers or other similar office equipment.
122If I am wrong in my conclusion that the plaintiff lacks any capacity to undertake suitable employment, nevertheless, the evidence satisfies me, and I find, that such capacity as the plaintiff presently has to undertake suitable employment, does not exceed four hours per day, four days per week. I note that this is the conclusion reached by the defendant’s own occupational physician, Dr Slesenger, in all three reports on which the defendant relied. I also note that while Dr Slesenger expresses a view that the plaintiff’s hours may be able to be increased over time, he acknowledges that the plaintiff’s prognosis for improvement is “guarded”, and that he has had a “poor response to treatment to date”.
123I note that the Act requires me to assess the plaintiff’s capacity for suitable employment as at the date of the hearing. Given the findings I have made about the plaintiff’s credit, which are set out in detail above, I am comfortably satisfied in my conclusion as to the plaintiff’s maximum capacity, if any, for undertaking suitable employment.
124As has been referred to above, both parties agreed that if the Court were to find that the plaintiff has a capacity for suitable employment of no more than 16 hours per week, then he must succeed in his economic loss claim.
125In light of my findings as to the plaintiff’s impairment, his incapacity for employment and the barriers which exist in respect of retraining, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the fact that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of the Act as they relate to this application.
Conclusion
126In those circumstances, I am satisfied to the requisite standard, that as a consequence of the incident, the plaintiff suffered a “serious injury”, as defined in the Act, in the form of an organic injury to his spine. The application for leave is granted in respect of both pain and suffering and loss of earning capacity.
127I will hear the parties in relation to the question of costs.
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