Crawford v Victorian WorkCover Authority [2025] VCC 1861

(a) permanent serious impairment or loss of a body function; or

. . .

1. Assessing whether the injury claimed is a "serious injury" is undertaken at the time the application is heard. Here, the plaintiff says the injury the subject of the application is a serious injury because it is a permanent serious impairment or loss of a body function and so the term "serious" is satisfied by reference to the consequences to the plaintiff of any impairment or loss of body function with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of body function.[2]
2. Any impairment or loss of a body function will not be serious for the purposes of assessing serious injury in accordance with s 335(2) of the Act unless, relevantly here, the pain and suffering consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.[3]
3. Whether an injury is a "serious injury" within the meaning of s 325(1) of the Act is assessed by applying the "narrative test".[4] This involves a two-stage process. The first requires assessing whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the plaintiff, "serious". The second requires a determination whether the injury as so assessed is objectively "serious" when compared with the range or "spectrum" of comparable cases.[5] As to any physical injuries, the second stage involves a consideration whether the injury is, when compared with other possible impairments or losses of body function, at least 'very considerable', and more than 'significant or marked'.[6]
4. Assessing the plaintiff's "pain and suffering consequences" resulting from the injury, requires the Court to consider both the plaintiff's experience of pain in addition to the disabling effect of the pain on the plaintiff's physical capabilities and enjoyment of life.[7] It may be necessary to consider the intensity, frequency and duration of the plaintiff's pain by reference to the plaintiff's account of the pain, what he does about the pain (for example medication, rest, seeking medical treatment), the medical opinions on the extent and intensity of the plaintiff's pain, and what the objective evidence indicates about the disabling effect of the pain.[8] Assessing the extent or degree to which pain from a physical injury impacts the plaintiff's physical capacity and enjoyment of life includes considering the effect of pain on the plaintiff's sleep, mobility, cognitive functioning, capacity for self-care and self-management, performance of household and family duties, recreational activities, social activities, sex life and enjoyment of life.[9] The disabling effects of pain may also be shown by considering whether the plaintiff has resumed employment and, if so, what, if any, limitations there are on the plaintiff's employment.[10]

• 9 The weight that is ascribed to the plaintiff's account of pain will in part depend on the Court's assessment of the plaintiff's credibility or reliability.[11] An assessment of credibility or reliability depends on the plaintiff's evidence and the views expressed by the examining medical practitioners and any opinions about the reliability of the plaintiff's accounts of pain.[12]

1. The plaintiff is now 40 years old. He completed Year 12 at school and thereafter worked in various roles including furniture removal, groundskeeping, retail and truck driving before commencing employment with JJ Richards & Sons as a hook bin truck driver in May 2019. He lives in Brookfield with his fiancé, son, daughter from a previous relationship, and three stepchildren. He shares custody of his daughter with his former partner.[13]
2. Prior to commencing his employment, the plaintiff underwent a pre-employment medical examination and was cleared to undertake his duties.[14] He was employed on a full-time basis.[15]
3. The plaintiff reports he has an aversion to painkilling and anti-depressant medications.[16]
4. The plaintiff has had health issues and injuries before the injury to his cervical spine he sustained in November 2019. He had a sports background and was almost drafted by the Sydney Swans in the AFL, but he fractured his vertebrae in 2002 which halted this pursuit.[17] From October 2016 the plaintiff had back and neck pain from time to time and consulted a chiropractor for the next 2 to 3 years.[18] Medical imaging showed some minor spondylotic changes to the C4/5 and L4/5 levels.[19] In January 2019 the plaintiff experienced pins and needles and an inability to flex his neck laterally to the left after sneezing.[20]
5. Over the years the plaintiff has suffered from asthma with treatment consisting of Ventolin and Serotide.[21] The plaintiff also sustained a right knee injury in July 2022 whilst playing a mock football game with his children. Further, on 12 June 2024 the plaintiff was diagnosed with a left-sided seventh rib fracture, however he did not know how this injury occurred.[22]
6. The plaintiff said that before his neck injury he played golf socially about once per month and often played with his father. He was a volunteer firefighter from the age of 12, and at the time of the accident was actively part of the Goroke Fire Brigade in Horsham.[23] Volunteer firefighting was an activity he really enjoyed, as he "liked spending time with other volunteers, and the feeling of contributing to the local community".[24] He enjoyed attending the gym four or five times a week to maintain his strength and fitness and could bench press weights of up to 150 kilograms.[25]

1. The plaintiff deposed to fracturing his L5 vertebrae when he was 17 years old and that over the years his lower back had been reasonable but, in his work, he sometimes experienced soreness in his back and neck. He said that he consequently had some chiropractic treatment at Health By Chiropractic in Melton between October 2016 and 2019 for his lower back and pelvis.[26]
2. The chiropractic consultation records disclose the plaintiff reporting variously of neck and lower back pain, with soreness and stiffness. The consultation notes record complaints of central lower back pain for a couple of weeks during the colder mornings with some complaints of pins and needles in the left arm on and off and an inability to laterally flex the neck to the left.[27]

1. On 21 November 2019, when the plaintiff was standing at the back of his truck disposing of some rubbish at the Cleanaway Landfill Site in Ravenhall, the rubbish from an adjoining truck fell on the plaintiff's legs and lower back region.[28] The plaintiff was able to move quickly and extricate himself.[29] The video of the incident confirms he was able to do so, and does not show any significant physical trauma or significant force being applied to the plaintiff's torso.[30] The plaintiff says he felt pain in his neck and shoulder and only worked for 5 minutes after the accident.[31] He then sat in the work office and did not complete his shift that day.[32]
2. The plaintiff's employer directed him to attend a physiotherapist later that day. The plaintiff also attended the company's general practitioner, Dr Shaista Kahn, for a tetanus booster shot.[33]
3. On 11 December 2019 the plaintiff presented to his general practitioner, Dr Maryam Nejad at the Scott Street Medical Clinic in Melton after experiencing neck pain and "pins and needles" in both hands.[34] Shortly after, he lodged a WorkCover claim in respect of the cervical spine injury, which was accepted by the agent.[35]
4. On 22 December 2019 the plaintiff attended the Baccus Marsh Hospital emergency department where he was diagnosed with left arm radiculopathy due to a neck disc prolapse.[36]
5. On 9 January 2020, Dr Nejad referred the plaintiff to Mr Ivan Bhaskar, neurosurgeon, for review.[37] Mr Bhaskar referred the plaintiff for a CT-guided left C6 nerve root injection which was administered on 17 February 2020.[38] The plaintiff says the injection made his neck symptoms get better.[39]
6. In late February 2020, the plaintiff was assaulted and struck in his chest by his ex-wife's partner.[40] This assault caused a temporary exacerbation in his neck pain, which then returned to his previous pain levels prior to the injection.[41]
7. The plaintiff continued to be treated by Mr Bhaskar who recommended conservative management by way of analgesia and anti-inflammatory medications.[42] Mr Bhaskar opined that the plaintiff had a good prognosis for full recovery in 4 to 12 weeks.[43]
8. On 26 April 2020, the plaintiff attended Djerriwarrh Health Services urgent care following an incident when, whilst driving, he felt a pop in his neck and then a burning sensation as well as pain in the left arm/fingers and right elbow.[44]
9. The plaintiff attended Djerriwarrh Health Services on one further occasion in July 2020 after stressing his neck with exercise on the weekend, complaining of bilateral arm pain since the accident at work.[45] He was discharged with a prescription for Tramadol.[46]
10. On 30 June 2020 the plaintiff attended Dr Caroline Tan, neurosurgeon, who recommended the plaintiff undergo a C5/6 disc arthroplasty surgery.[47] In a further report dated 8 December 2020, Dr Tan opined that surgery should be considered after a pain management program.[48] The plaintiff did not proceed with the surgery as the agent determined that surgery was premature.[49] He then had further physiotherapy treatment between 2020 and 2021.
11. In October 2020 the plaintiff was referred by Dr Nejad to Dr Christopher Woodgate, pain and rehabilitation medicine specialist, who recommended the plaintiff attend the Dorset Rehabilitation Centre to be assessed for a pain management program. The program was approved and the plaintiff attended periodically over the next four months.[50]
12. In July 2025 the plaintiff experienced neck problems and was prescribed Norgesic by Dr Nejad and referred to Mr Shantanu Mazumder, physiotherapist, under a Medicare EPC Treatment Plan.[51] The plaintiff did not take the Norgesic tablet.[52] To manage his pain, the plaintiff takes Nurofen, Advil and Panadol on a 'needs basis', and to help him get through shifts at work.[53]

1. After the accident, the plaintiff took one day off work, then attempted to return to work on modified duties.[54]
2. On 5 December 2019, the plaintiff was involved in a separate incident which involved a skip being rolled over on its side and was subject to disciplinary action.[55]
3. The plaintiff ceased work in or about early December 2019.[56] However, the plaintiff made further return to work attempts between April 2020 and 2021 on modified duties. On 16 June 2021 the employer withdrew the provision of suitable duties.[57] The plaintiff ultimately ceased working for JJ Richards & Sons in or about August 2021 due to the availability of work, with the plaintiff also alleging that his inability to wear a face mask because of his PTSD contributed to the breakdown of the "work situation".[58] Despite the plaintiff's sworn evidence, during oral submissions the plaintiff took issue with the defendant's suggestion that the plaintiff had ceased work because of an issue with mask mandates.[59] Ultimately, nothing of significance turns on this and the 16 June 2021 correspondence to the plaintiff from his then employer makes clear that his employer was no longer in a position to provide suitable (modified) duties.[60]
4. In October 2021 the plaintiff commenced work as a delivery driver for Pindarri Poultry, delivering chickens to butchers, where he worked for a short period.[61]
5. In May 2022 the plaintiff commenced work at Tyremax as a delivery driver and is currently employed working 4 days, paid for 76 hours per fortnight and working about 32 to 35 hours per week.[62] In this role he is required to roll tyres out of the truck, which puts some force on his neck and shoulders.[63] The plaintiff clarified in re-examination that his employment with Tyremax is less physically demanding than his role at JJ Richards & Sons, as his current role does not require 'tarping'.[64] Tarping involves covering the bins with a tarpaulin to stop the rubbish debris from blowing out of the bin and tying down the tarpaulin.[65]
6. In July 2025, the plaintiff took some intermittent periods off work due to his neck problem and was declared fit to resume work from 28 July 2025.[66] He is fearful that his neck injury will impact his ability to sustain his current role.[67]

1. The plaintiff's evidence concerning the pain and suffering consequences of his cervical spine injury was to the following effect.
2. The plaintiff says he has constant pain in his neck, primarily at the back of his neck just above his shoulders, which varies from a dull, nagging ache to an intense, stabbing and burning pain.[68] He accepts the severity of the pain fluctuates throughout the day.[69] He says his pain increases with too much movement and now he has a restricted range of movement in his neck. He finds his neck is stiff and tight. He is uncomfortable when reading or if he needs to tilt his head up or down for extended periods. He says his pain is worsened by cold weather, physical activity, heavy lifting, or swiftly twisting or turning his head.[70] He finds tasks which involve overhead reaching, heavy lifting, pushing, or pulling can be very difficult.[71]
3. The plaintiff appears to have told Mr Girish Nair, neurosurgeon and spinal surgeon during an examination on 4 August 2025 that he has pain predominantly in the neck causing radiation down his arms with pins and needles and tingling predominantly on the left side with similar distribution symptoms on his right side, he rates his average pain of about 4 to 5 out of 10 but at times when there is a flareup the pain can be 10 out of 10. He told Mr Nair that he is not on regular medication and undertakes intermittent physiotherapy.[72]
4. The plaintiff says that he continues to work as a truck driver at Tyremax, however at the end of a working day his neck is stiff and sore. He reports he relies almost entirely on side mirrors when driving as the movement of his neck causes pain.[73] He accepts that he can move his head normally to conduct 'head checks'.[74]
5. The plaintiff says the pain in his neck radiates down both his arms but is worse in his left arm. He experiences feelings of altered sensation, pins and needles, and numbness in his left hand and fingers. He experiences similar feelings in his right hand and fingers, but less frequently.[75]
6. Since the injury the plaintiff reports he sleeps in a recliner or in bed sitting up three or four times a week. He has become a restless sleeper and is often woken during the night due to pain and often feels tired, fatigued and lacking in energy.[76] The plaintiff accepts that prior to the injury he was sometimes a poor sleeper.[77]
7. The plaintiff says his pain affects his mood, particularly when he has a 'flare-up', and becomes irritable, grumpy and frustrated.[78]
8. The plaintiff says his injury has impacted his ability to be an active father. He finds it difficult to pick up his son.[79] He cannot kick a football freely with his partner's sons or play active sports with his daughter.[80] During cross-examination the plaintiff clarified that he was able to play a 'parent versus child' football game with his son.[81] During re-examination the plaintiff confirmed this game involved standing and jogging every now and then.[82] The plaintiff sustained a right knee injury during this football game in July 2022.
9. During cross-examination the plaintiff disagreed with propositions that he could lift his two-year-old son without difficulty, that he could bend and pick up his son without causing neck pain, that he could lift his son above his shoulders without difficulty and that he could toss his son up in the air and catch him again.[83] However, after being shown surveillance footage of the plaintiff engaging with his son during shopping trips, the plaintiff accepted that the footage showed that he is able to bend and reach into his car to lift out his son, lift him above shoulder level, throw him in the air, and put him in the baby seat in a shopping trolley.[84] However, during re-examination the plaintiff clarified that he has recently taken on a different role with the children as his partner is pregnant and has experienced pregnancy complications.[85]
10. The plaintiff also accepted that the surveillance footage showed him unloading a portacot and loading a pram into the boot of a car without difficulty, that he was able to climb in and out of a truck and that he was able to undertake head checks but maintained that despite the footage he still experienced pain in undertaking these activities.[86] Having viewed the surveillance footage when played in Court and having since reviewed the footage, I am unable to discern any indication that the plaintiff was experiencing pain during the activities filmed. There is no indication of any wincing, delay or hesitation. In my view, the surveillance material contradicts the plaintiff's narrative about his engagement in activities with his son and the level of pain he says he experiences. It also contradicts the plaintiff's evidence about his limited range of mobility.
11. The plaintiff says that he is limited in how he can contribute to domestic chores and now relies heavily on his partner. He avoids vacuuming, mopping or any movements that require repetitive pushing or pulling.[87] But again, the surveillance footage of 7 and 14 October shows the plaintiff lifting his son out of the car and putting him in a shopping trolley and pushing a shopping trolley while his son was in it, without any obvious indicator of pain or discomfort.[88] During cross-examination, it was also put to the plaintiff that since he can drive a truck for multiple hours a day, and roll vehicle tyres over stacks, that his neck symptoms would not prevent him from doing tasks such as vacuuming or mopping. The plaintiff disagreed,[89] but I find the plaintiff's response difficult to accept, both as a matter of logic and common sense and in view of that which is depicted in the surveillance footage. The notion that the plaintiff can engage in his work activities and undertake the activities depicted in the surveillance footage yet cannot vacuum or mop because they cause his neck to flareup, does not ring true.
12. The plaintiff says since the injury, his usual social and recreational activities are heavily affected. He has not attempted to play golf again due to his limited neck movement and he believes the movement required when playing golf would cause pain.[90] Since the accident, the plaintiff has been unable to carry out any volunteer firefighting work, as he is unable to hold hoses properly or for long periods of time, or support the breathing apparatus on his back.[91] The plaintiff said that whilst he used to attend the gym four or five times a week before the injury where he would engage in a circuit program, he has not been to the gym for "a couple of years now" and he is unable to engage in heavy or repetitive physical activities, and cannot lift the same weights he used to at the gym. He says that this has resulted in a weight gain of 30 kilograms since the accident.[92] He is upset that he cannot participate in golf and volunteer firefighter work as these are important aspects of his life.[93]
13. At around the time the plaintiff commenced employment with JJ Richards & Sons, the plaintiff was required to complete a medical assessment to assess the plaintiff's fitness for the position into which he was to be employed. This involved, inter alia, completing a "Site Based Management Plan".[94] The plaintiff was asked a series of questions including whether he engaged in regular exercise or played sport to which the plaintiff responded by marking "no".[95] During cross-examination it was put to the plaintiff that he did not engage in regular exercise at the time of commencing employment with JJ Richards & Sons.[96] The plaintiff said that he marked or answered "no" because he "didn't class gym as exercise" and to him was just a routine.[97] The explanation is not accepted. It is absurd, made all the more so by his later evidence in re-examination suggesting that his inability to go to the gym has negatively impacted his fitness causing him to gain significant weight.[98] Both fitness and weight are impacted by, inter alia, exercise.
14. The plaintiff makes no mention of his regular gym activities in his first affidavit sworn in September 2022.[99] On 9 October 2025 the plaintiff deposed that prior to his injury he used to enjoy attending the gym four to five times most weeks to maintain strength and fitness.[100] A curious description for someone who does not regard gym attendance as exercise but merely a matter of routine. In any event he does not depose that his gym attendance, whatever its regularity, was a relatively recent initiative before the accident. The consultation records of his chiropractic attendances note that in May 2017 he was thinking about joining a gym and that in October 2017 when he was attending for aches and pains, he had started at the gym.[101]
15. I consider that the answer given by the plaintiff in the Site Based Management Plan is a more reliable indicator of the extent to which the plaintiff engaged in regular gym activity at the time of commencing his employment than the evidence the applicant gave. The same conclusion is reached in respect of the plaintiff's golfing activities, and I do not accept the implicit explanation during cross-examination for the plaintiff's indication in the Site Based Management Plan that he marked "no" to playing sport because he played golf only once a month.[102] In the plaintiff's first affidavit he deposed that before the accident he used to play golf on a reasonably regular basis, about once a month,[103] which suggests that in September 2022 the plaintiff considered playing golf once a month as "reasonably regular" in contrast to his oral evidence wherein he attempted to convey that playing golf once a month was infrequent or irregular. Moreover, his explanation is inconsistent with his claim that he is upset, inter alia, that he cannot participate in golf because this was an important aspect of his life.[104]
16. As to CFA volunteering, the plaintiff deposed to being upset that he had to give up his CFA volunteering. Noting that he volunteered as a firefighter, he nevertheless expressed that it was an activity he had undertaken for many years and enjoyed as he liked spending time with other volunteers, and it made him feel as though he was contributing to the local community.[105] Without diminishing the contribution he may have made as a volunteer firefighter, his capacity to be involved in the CFA and to contribute to his local community through that involvement as well as spending time with other fellow volunteers is not altogether diminished. The plaintiff could still participate in other volunteering through the CFA by being involved in community and volunteer education and providing demonstrations, instruction and the like. His evidence was that although he had thought about engaging in this way he did not think he would appreciate it as much after being a firefighter.[106] Respectfully, that is about ego and not capacity to volunteer and contribute to the community through CFA involvement.

1. Five reports of cervical spine MRIs are contained in the plaintiff's Court Book. Four were undertaken in a period of 11 months between mid-December 2019 and late November 2020.[107] The fifth was recently undertaken (10 October 2025).[108] That report is the most relevant because of its recency. Because of their age, the other reports provide only historical context and are not helpful in assessing the current state of the plaintiff's injury. The 10 October 2025 MRI report provides[109]:

MRI CERVICAL SPINE > > Clinical Notes: Neck pain with radiculopathy. Previous trauma. > > Findings: > > Satisfactory vertebral body alignment. No suspicious marrow lesion. No bone marrow oedema. No Chiari malformation. > > Disc and uncovertebral joint degenerative disease at several levels. Disc osteophyte complexes, most pronounced at C5-6. > > Central canal is patent to mildly compromised only. No significant cord compression. Contact of the anterior cord at C5-6. No cord signal abnormality. > > No facet joint bony hypertrophy. > > Exit foramina are satisfactory. No high-grade exit foramen stenosis. > > Conclusion: > > No high-grade central canal or exit foramen stenosis. No cord compression or myelomalacia.

1. In his report dated 11 December 2019, Mr Nachiappan stated the plaintiff was "experiencing pins and needles into his arms and fingers bilaterally" and had "restricted movements of the cervical spine" which was worse on the left rotation. He reports the plaintiff had "tenderness" and "pins and needles" on palpation of the "cervical facet joints 3-6, Cx and Tx paraspinal muscles". Mr Nachiappan recommended the plaintiff be referred for an MRI if necessary.[110]

1. In his report to Dr Nejad dated 23 January 2020, Mr Ivan Bhaskar, neurosurgeon, reported that the plaintiff experienced neck pain since the accident, as well as "pain radiating down the left arm and tingling paresthesias in the middle two fingers of his left hand" for four or five weeks after the accident, as well as weakness in the left upper limb.[111] On examination, Mr Bhaskar reports "mild weakness of left elbow flexion and extension possibly due to pain and decreased sensations along the left index, middle and ring fingers". Mr Bhaskar recommended a left C6 nerve root sleeve injection to assist with "active inflammation", as well as a gradual return to work.
2. Mr Bhaskar, in his letter to Dr Nejad dated 28 February 2020, reports that the plaintiff presented two days after he was assaulted, "after which his symptoms have recurred". Dr Bhaskar recommended a further MRI to assess if symptoms had worsened. Dr Bhaskar opined that the plaintiff's symptoms "would settle spontaneously as it was a minor aggravation".[112]
3. In his further letter to Dr Nejad, dated 5 March 2020, Dr Bhaskar reported that the repeat MRI "did not show any significant changes" and suggested the plaintiff take "analgesics with some anti-inflammatories" to control his "painful symptoms". Dr Bhaskar opined that the plaintiff "could go back to his gym activities and work and other activities of normal daily living" and recommended a referral to a dietician to assist with weight loss.[113]
4. On 20 April 2020, Mr Bhaskar discharged the plaintiff from his care noting in his treating surgeon questionnaire that the treatment required was analgesics; that the prognosis was good for a full recovery estimating between 4 to 12 weeks; that there be a gradual return to work with a weight restriction of 4 kg; that there be a gradual increase in hours of work and that the plaintiff would be in a position to return to pre-injury duties and pre-injury hours in about three months.[114]
5. According to the plaintiff's evidence he returned to work with JJ Richards & Sons and was increasing his hours from initially three days per week, then four days per week and then getting up to 6 hours a day for four days per week[115] until his employment ended - the plaintiff was told there was no more work available.[116]

1. Dr Caroline Tan, neurosurgeon, in her letter to Dr Nejad dated 30 June 2020,[117] stated the plaintiff presented with "quite a normal range of cervical spine lateral rotation". On observation, Dr Tan reports the plaintiff's "upper limb tone was normal. There was no apparent weakness. The left triceps jerk was a fraction depressed compared to the right. There was slightly altered sensation in left hand digits III and IV".[118] In relation to treatment, Dr Tan considered the plaintiff "felt he has given conservative management a go" and "said that he now wants surgery". Dr Tan noted that she found "the results of the cervical discectomy are generally very good" and would write to the WorkCover insurer to request surgery.[119]
2. In a letter to Allianz dated 2 July 2020,[120] Dr Tan stated she saw the plaintiff "for treatment of left sided cervical radiculopathy which commenced in November 2019 after a work-related incident". As to diagnosis, Dr Tan considered the plaintiff had a "sizeable left-sided C5/6 disc herniation with spinal cord and root impingement". Dr Tan recommended a C5/6 disc arthroplasty surgery.
3. In her subsequent report dated 8 December 2020,[121] Dr Tan further reports on the plaintiff's attendance upon her in June 2020. Dr Tan records that:

Mr Crawford is a 35 year old garbage truck driver who is complaining of left upper limb parasthesiae and pain following an incident at work when some rubbish was tipped over him, striking his neck and causing him to fall. The parasthesiae is reported to extend to digits IIl and IV of the left hand, which normally suggests a C7 nerve lesion. There are a series of cervical spine MRIs with the earliest from December 2019 demonstrating only a broad-based bulge of the C5/6 disc while the next MR1 in March 2020 demonstrated a small to medium left-sided C5/6 disc hernaition. Nevertheless, there is no definite left C6 nerve compression. and no spinal cord compression. There is certainly no C7 nerve lesion.[122]

4. As to diagnosis, Dr Tan states the plaintiff "may have a left cervical radiculopathy although his symptoms do not correlate very well with the radiological findings" and "there has not been any aggravation of a pre-existing condition".[123] Dr Tan further recorded that there is no clear relationship between the plaintiff's C5/6 disc herniation and his employment. Dr Tan noted that the plaintiff may have suffered this condition because of an assault from his ex-wife's partner. Dr Tan reasoned that this may be so because the first MRI performed after the work incident did not demonstrate left sided C5/6 disc herniation but the MRI performed within two weeks of the assault did. Dr Tan did not object to the plaintiff undergoing a pain management course and suggested surgery could still be considered after its completion.[124]
5. Dr Tan was asked specifically whether the plaintiff's medical condition is materially contributed to by the injury to which Dr Tan responded:

As mentioned, Mr Crawford has described an assault in March as well as the work incident so there are two potential injuries. His medical condition may be more related to the assault.[125]

6. The plaintiff has not returned to Dr Tan and there is no evidence of any surgeon since 8 December 2020 having recommended surgery.

Dr Christopher Woodgate, pain and rehabilitation medicine specialist

1. In his report dated 27 October 2020,[126] Dr Christopher Woodgate, a pain and rehabilitation medicine specialist, states the plaintiff has "normal range of motion of his neck".[127] As to a diagnosis, Dr Woodgate considered the plaintiff had "persistent whiplash associated disorder in the setting of a workplace accident",[128] and recommended the plaintiff undertake a pain management program at Dorset Rehabilitation Centre.

1. In her report dated 2 December 2020, Dr Maryam Nejad, general practitioner, opined the plaintiff "has been suffering from neck pain with radiculopathy since the accident at work".[129] Dr Nejad recommended physiotherapy treatment three times per week, painkillers as needed and to "[c]onsider surgery as per Dr Caroline Tan recommendation".[130]
2. In her report dated 20 August 2025, Dr Nejad diagnosed "cervical radiculopathy" and reported the plaintiff "suffers from on off neck pain" and "pins and needles in upper limb" since the accident.[131] Dr Nejad opined that due to his injury, the plaintiff is restricted in "overhead activities, lifting, prolonged and repetitive use of the cervical spine".[132] Dr Nejad further states there is "no need for surgery at this stage" and recommends that the plaintiff see a physiotherapist.[133]
3. The plaintiff also attended Dr Nejad on 22 and 28 July 2025. Dr Nejad worked out of the Scott Street Medical Centre at which the plaintiff attended. The clinical progress notes of the Scott Street Medical Centre[134] do not disclose any attendance between 13 September 2022 and 22 July 2025 at which the plaintiff complained of any neck pain or problem.[135]
4. Similarly, the progress notes of the plaintiff's attendances at the Highlands Medical Centre[136] do not disclose any complaint about neck pain or neck problems in the various attendances in 2023, 2024 and early 2025.[137]
5. The plaintiff's 28 July 2025 attendance record with Dr Nejad records that the plaintiff "is here for clearance certificate" and that "[h]is neck pain is getting better, had one session with PT, taking Norgesic tab".[138] The plaintiff agreed that the note accurately recorded that his neck was getting better as at July 2025 and that he had only one session with a physiotherapist prior to his neck getting better.[139] The clearance certificate provided that the plaintiff "would be fit to resume work from 28 July 2025".[140]
6. Returning to the 20 August 2025 record,[141] Dr Nejad in answer to point 1 - "[y]our diagnosis of the injuries sustained by my client during the course of his employment ..." - reports, "[c]ervical radiculopathy following a rubbish bin falling on his neck at work on 21st November 2019. MRI showed mild c5/6 cord compression and mild bilateral foraminal stenosis." Dr Nejad does not discuss any findings on clinical examination, performed on July 2025, or since. It is therefore unclear how Dr Nejad arrived at the diagnosis. Certainly, no bin fell on the plaintiff, much less his neck as Dr Nejad records. The reference to that which the MRI showed appears to be a reference to the surgical spine MRI conducted on 16 December 2019 reporting a conclusion that "[m]ild C5/6 cord compression due to disc-osteophyte complex as well as mild bilateral foraminal stenoses at this level".[142] But the most recent cervical spine MRI concludes that there was "[n]o high-grade central canal or exit foramen stenosis. No cord compression or myelomalacia."[143]
7. Dr Nejad notes at point 2 - which asks whether the plaintiff's medical condition is stabilised - that the plaintiff suffers from on/off neck pain since the accident with pins and needles in the upper limb. There is nothing more and the question is not answered. In answer to point 3 which requests information about the plaintiff's present symptoms and treatment requirements, Dr Nejad reports on/off neck pain with restriction in range of movements, that he is taking painkillers p.r.n (as needed) and is doing physiotherapy. The plaintiff's evidence was that as at July 2025 he told Dr Nejad that his neck pain was getting better and that at this stage he had only had one session with a physiotherapist, and although Dr Nejad recorded that he was taking Norgesic tablets, he was not taking them.[144]
8. Dr Nejad's assessment at point 4 about consequences of physical impairment on various activities - that certain activities such as overhead activities, lifting, prolonged and repetitive use of the cervical spine are restricted due to his condition is not explained, nor is it clear, why at point 6 his suitable duties as a truck driver delivering tyres for 32 hours per week four days a week does not involve overhead activities, lifting and prolonged and repetitive use of the cervical spine. Moreover, the suggestion that his current role as a truck driver working 32 hours per week are suitable alternative duties does not sit comfortably with Dr Nejad's prognosis at point 10 of the report that the plaintiff suffers on/off neck pain which is not constant anymore with pins and needles in the upper limbs which will likely persist while driving a truck.
9. There is no explanation for the view expressed at point 7, that the plaintiff cannot do certain exercises and sport activities much less is there any identification of the sports and exercises which the plaintiff cannot do. For all of these reasons, little weight can be placed on Dr Nejad's 20 August 2025 report.

Dorset Rehabilitation Centre, interdisciplinary assessment report

1. A multidisciplinary report dated 17 March 2021[145] was completed by Jeannie, physiotherapist, Ranya, psychologist, and Rhiannon, occupational therapist, who assessed the plaintiff who presented with "an 18 month history of neck pain".[146] The practitioners reported that on assessment, the plaintiff had "moderately reduced cervical range of rotation bilaterally with complaint of [stiffness] not pain".[147] The practitioners recommended an "individual based therapy program over 12 weeks period, including: Physiotherapy, Psychology, Occupational therapy, Exercise Physiology,".
2. In a subsequent discharge summary report dated 12 July 2021,[148] the practitioners recommended the plaintiff "[c]ontinue with graded home exercises focussing on manual handling strength and endurance and progress walking tolerance to include hill walking".

1. In his report dated 1 December 2020,[149] Mr Mike Abdelmalek, physiotherapist, describes the plaintiff's injury as a "chronic cervical spine injury" which carries consequences such as being "unable to lift items greater than 5 kilograms or complete repetitious tasks with his upper limbs without pain reoccurring". Mr Abdelmalek says the plaintiff presented with "a loss of musculoskeletal strength of his upper limbs and deep cervical musculature." Mr Abdelmalek opines that his injury has a "high impact towards his ability to return to his employment". He recommends "continuing physiotherapy 2-3x/week with hydrotherapy 1-2x/week", for a minimum of 6 to 8 weeks."[150]
2. Later however, on 18 January 2022, Mr Abdelmalek, opined the plaintiff had capacity to return to his pre-injury duties and hours as well as suitable employment without restrictions.[151]

1. In his report dated 29 August 2025,[152] Dr Girish Nair, a neurosurgeon and spinal surgeon, considered the plaintiff's diagnosis as "[c]ervical spondylosis with C5-6 disc degeneration with left C6 radiculopathy"[153] and that his prognosis was "guarded with regards to any further improvement over time".[154] Dr Nair opined that as the plaintiff has C5/6 disc degeneration, he is "at slightly increased risk of developing further degeneration and arthritic changes in his facet joints in the long term".[155]
2. However, I agree with the defendant that there is nothing in Mr Nair's examination suggesting that he found clinical signs of radiculopathy and there is nothing in the report beyond the diagnosis which suggests there is radiculopathy. Mr Nair does not explain how it is that he came to make the diagnosis. Mr Nair's report notes that there is no myelopathy and no severe neutral impingement on MRI. In the clinical examination, Mr Nair noted that the plaintiff had a normal range of motion and there was no evidence of any weakness in his arms or his legs and that his power and reflexes were normal and his gait was normal and there was no evidence of any myelopathy. Mr Nair noted that the plaintiff had MRI scans which demonstrated "C5-6 disc prolapse with mild narrowing onto his C6 nerve without any severe neural impingement".[156]
3. Mr Nair did not have the benefit of the MRI cervical spine undertaken on 10 October 2025 which concluded no high-grade central canal or exit forum and stenosis. No cord compression or myelomalacia.[157] Apart from recording a history of neck pain with radiculopathy from a previous trauma in the clinical notes, it does not disclose any radiculopathy in the findings nor the conclusion. An MRI of course allows for the visualisation of any abnormalities that may cause nerve compression which is the hallmark of radiculopathy.
4. I therefore agree with the defendant's contention that there is a discord between Mr Nair's findings on clinical examination and the MRI scans on the one hand, and his diagnosis on the other. Consequently, Mr Nair's opinion is not particularly persuasive.

Dr Umberto Boffa, occupational and environmental physician

1. In his report of 9 May 2022,[158] Dr Umberto Boffa, occupational and environmental physician, recorded that the plaintiff had presented with "'much improved' neck pain severity with no further upper limb symptoms". Dr Boffa further reports that the plaintiff "is independent in activities of daily living with sleep undisturbed and sitting standing walking driving lifting and carrying are no longer restricted".[159] On observation, Dr Boffa reported the plaintiff "sat through the interview and indicated he had no neck movement restriction or numbness or weakness in the hands".[160] As to diagnosis, Dr Boffa considered the plaintiff "has improved aggravated cervical spondylosis without radiculopathy".[161]

1. After consulting with the plaintiff on 19 June 2025, consultant occupational physician, Dr Majid Rahgozar, reported on 20 June 2025,[162] that on examination, the plaintiff "could not make a full squatting by expression of back pain", and his "range of motion of cervical spine was mildly restricted in extension and flexion but normal rotation and lateral flexion".[163] He further states the plaintiff's "[r]ange of motion of thoracolumbar spine was mildly restricted in all planes" and his neurological examination was normal. As to diagnosis, Dr Rahgozar considered the plaintiff "experienced a simple musculoligamentous injury or exacerbation of degenerative changes of the spine" which "has now been resolved and he has returned to his pre-injury state".[164] Dr Rahgozar opines the plaintiff's ongoing complaints of pain are not related to pathology and his prognosis is good.[165]

1. Dr Phil Allen is a consultant orthopaedic surgeon who reported on 14 July 2025[166] that the plaintiff "has, at the utmost, sustained a transient exacerbation of pre-existing cervical spondylopathy, the effects of which have been passed and been superseded by the ongoing progression of his degenerative spinal disease".[167] As to treatment, Dr Allen considers "non-surgical management" as "appropriate for his condition".[168] Dr Allen concluded that "[i]f any incapacity does evolve over time, this is on the basis of his degenerative cervical spondylopathy, which is expected to progress in line with its natural history".[169]

1. In summary, for the plaintiff, it was submitted that:

(a) the medical evidence supports a finding of cervical radiculopathy caused by the accident at work which is a compensable injury, and this matter is not in dispute;[170]

(b) the plaintiff continues to experience symptoms of pain and stiffness in his neck, radiating pain and radicular symptoms with altered sensation and numbness into his upper limbs and hand;[171] this pain has continued for nearly six years;[172] and the plaintiff has difficulties with his sleep;[173]

(c) prior to the assault, the plaintiff already had pain and paraesthesia into the left hand and had well-established complaints of neck pain, and radicular complaints into his hands; the assault did not cause a new neck disc prolapse and there should not be great weight put on Dr Tan's opinion relating to the assault being the reason for the plaintiff's medical condition;[174]

(d) although the plaintiff concedes that he has retained capacity for employment, his ability to return to pre-injury duties, such as tarping, has been impacted and his return to work has not been without difficulties;[175] the plaintiff's employment at JJ Richards & Sons was taken away from him due to his inability to return to his full pre-accident duties;[176]

(e) the plaintiff's return to full-time work "does not preclude an affirmative finding of serious injury"[177] and as a stoical plaintiff, his injuries should not be viewed less seriously merely because he manages to remain more active than might have been expected, given the level of pain;[178]

(f) the plaintiff's pre-injury participation in recreational activities and social activities such as CFA volunteering, golfing and gym attendance has been impacted. He no longer volunteers as a firefighter or participates in his daughter's firefighting training, he has not returned to golfing, and he has lost his ability to lift weights which has resulted in a loss of fitness and weight gain;[179]

(g) the plaintiff is 40 years old and will have to endure the consequences of this injury for many years, with a view to having 25 to 27 years of working life ahead of him;[180] and

(h) when consideration is given to all the evidence collectively, the plaintiff's injury meets the threshold requirement and is at least 'very considerable' and 'more than marked'.[181]

1. For its part the defendant in summary contends that:[182]

(a) it accepts there was an initial mild soft tissue injury to the plaintiff's neck in a workplace accident on 21 November 2019;

(b) it contends that the medical evidence supports that the injury has now resolved, and there is no support that the plaintiff suffered a permanent serious impairment of the neck; and therefore, there is no current work-related injury; or

(c) it contends that if there is a finding that the injury has not resolved, then it cannot be described as a 'serious injury', but rather any residual impairment is mild and 'not very considerable' and does not prevent the plaintiff from participating in various activities; and

(d) this is because when his condition is assessed against a range of factors including pain, mobility, treatment, cognitive function, participation in family and household duties, participation in social and recreational activities, physical intimacy, and enjoyment of life, the plaintiff's impairment is mild and therefore does not meet the statutory threshold.

1. For the reasons which follow I do not accept the plaintiff's contentions. I consider the plaintiff's impairment is not permanent, but even if it is, I am not persuaded that any residual impairment, considering the level of the plaintiff's pain and suffering consequence discussed below meets the "very considerable" test in s 325(2)(c) of the Act.

What is the plaintiff's injury and is it permanent/long term?

1. I agree with the defendant that the weight of the medical evidence supports a conclusion that the injury has now resolved, and the plaintiff has not suffered a permanent serious impairment of the neck; and therefore, there is no current or ongoing work-related injury.
2. As the evidence earlier discussed discloses, the plaintiff returned to work with JJ Richards & Sons after the injury and progressively increased his hours until his employment ceased. In his first affidavit and under cross-examination, he attributed cessation of employment to lack of work availability.
3. By January 2022, the plaintiff had been cleared for full pre-injury duties by his treating physiotherapist, Mr Abdelmalek, and in May 2022, Dr Boffa, occupational physician, confirmed fitness for pre-injury duties and hours. Medical records from Highlands Medical Centre and Scott Street Medical Centre indicate that treatment for the injuries had ceased by September 2022. There was then a gap of almost three years without any medical attendances for any neck complaints. The plaintiff worked as a delivery truck driver during this period.
4. On 22 July 2025, the plaintiff consulted Dr Nejad complaining of ongoing neck pain. Subsequent attendances were limited, and by 28 July 2025, Dr Nejad issued a clearance certificate stating the plaintiff was fit to resume work, noting improvement in symptoms and minimal physiotherapy treatment.
5. Dr Rahgozar opined that the plaintiff likely sustained a minor musculoligamentous injury or exacerbation of pre-existing degenerative changes, now resolved. Clinical examination revealed only minor restriction of cervical spine movement, with no significant pathology or neurological abnormality. Dr Rahgozar noted the plaintiff had been able to return to his pre-injury state and retained capacity for pre-injury work. This was because, in Dr Rahgozar's opinion, from a physical and musculoskeletal health viewpoint, the plaintiff's initial injury has resolved.
6. Dr Allen was the only surgeon to review all imaging, and he found no evidence of traumatic lesion on the MRI and attributed ongoing symptoms to progressive degenerative cervical spondylosis. Dr Allen considered any work-related exacerbation transient and resolved, with current symptoms reflecting constitutional changes. He also confirmed the plaintiff's capacity for usual employment.
7. Earlier reports, including that of Dr Boffa in May 2022, recorded a resolution of symptoms and unrestricted function. Treating neurosurgeon Dr Tan noted inconsistencies between symptoms and imaging, and she expressed the view that there was no clear causal link between the disc herniation and employment.
8. On the totality of the evidence, I consider that any work-related injury was minor and transient, and the plaintiff has since recovered. The evidence suggests, and I accept that any current symptoms are attributable to degenerative changes rather than the incident in question.
9. Consequently, I do not consider the plaintiff's injury complained of to be permanent and so it cannot be a "serious injury" within the meaning of s 325(1) of the Act.
10. But even if the impairment could be said to be permanent, there is only a residual impairment which is mild and not serious because, when consideration is given to the pain and suffering consequence discussed, the impairment is not, when judged by comparison with other cases, in the range of possible impairments of a body function, fairly described as being more than significant or marked, and as being at least very considerable.

What are the impairment consequences for the plaintiff?

1. The plaintiff said he experiences ongoing pain, which he described as fluctuating between dull, nagging ache to an intense, stabbing and burning pain, which varies with activity and cold weather. The plaintiff complains of radiating pain down his arms. He complains of pins and needles, as well as numbness and feelings of altered sensation in his left hand and fingers.
2. During the plaintiff's oral evidence, he was shown surveillance footage taken of him at various times on 6, 7 and 14 October 2025. In the footage, he appears to be able to move his neck freely and with no obvious signs of pain. And although the plaintiff said that it was "discomfortable" and that he was in pain,[183] the surveillance footage, on my review, does not show any obvious signs of discomfort or pain being exhibited by the plaintiff. The plaintiff agreed that he was able, in the footage shown on the surveillance videos to turn and tilt his head quickly without restriction, although he said it was painful[184], but on my review of the surveillance footage there is no obvious sign that the plaintiff is in any discomfort or pain.
3. The footage also shows, and the plaintiff agreed,[185] that he is able to bend into his car and lift his son out of it, he was able to lift his son to shoulder level so that his son's torso was level with the plaintiff's head. The footage also shows the plaintiff lifting and throwing his son in the air and catching him. It shows the plaintiff putting his son in the seat of the supermarket trolley even though his son was evidently kicking his feet around in resistance. There is no evident sign of the plaintiff experiencing any pain or discomfort while doing so.
4. The footage variously showed the plaintiff loading and unloading the shopping, loading a portable cot into the van and a pram into the boot without any evident difficulty. It showed the plaintiff climbing in and out of a truck quickly and easily and that the plaintiff was able to move his head around inside the truck. And although the plaintiff disagreed that this was without pain or difficulty[186], there is no evident sign the plaintiff was exhibiting any pain or discomfort.
5. In my view, the plaintiff's complaint about the level of pain he experiences is inconsistent with his capacity as exhibited in the video evidence, which shows the plaintiff being able to function in a variety of settings in his private life and work without any obvious neck mobility or pain issues.
6. The plaintiff has been prescribed various pain medications, however, he has said he has an aversion to painkiller medication and believes it would be unsafe to take considering his occupation as a driver, and for that reason does not take them. He often applies a heat pack to his neck to help ease the aches and pains in his neck. He uses Nurofen, Advil and Panadol on a 'needs basis', and to help him get through shifts at work. He also uses an anti-inflammatory cream for pain relief, namely Rapigel. That the plaintiff manages his pain in the way he describes also suggests that his pain is manageable and not severe.

1. As earlier discussed, the plaintiff returned to his pre-injury employment initially on modified duties, however these modified duties were later withdrawn, and the plaintiff pursued other delivery driving opportunities. In May 2022 the plaintiff began working as a delivery driver for Tyremax. He describes the job as less physically demanding than his role at JJ Richards & Sons.
2. The plaintiff's work capacity is in my view demonstrative of very significantly retained function with the injury sustained by the plaintiff at JJ Richards & Sons and any associated pain or restriction not obviously diminishing his capacity to work in a similar role to that in which he was previously employed by JJ Richards & Sons. That the plaintiff has resumed and maintains employment driving a truck on a full-time basis[187] also suggests that his career prospects in his chosen field for which he is qualified remain unaffected.

1. In his first affidavit, the plaintiff said it is a "struggle to get comfortable when sleeping due to neck pain", and three to four times a week sleeps in a recliner or in bed sitting up. In his second affidavit, the plaintiff said, "the problems with my neck continue to disrupt my sleep most evenings" and he is "regularly awoken during the middle of the night by neck pain". The plaintiff deposed that as a result he often felt tired, fatigued and lacking in energy throughout the day.[188]
2. It may be accepted that sleep disturbance and the quality of the plaintiff's sleep by reason of an injury or associated pain is an important factor in assessing serious injury because of its impact on daily living. The plaintiff's cognitive functioning has not obviously been affected. He maintains employment as a driver, sometimes travelling long distances and most often, he appears to be working at night - typically four nights per week.[189] There is no suggestion that any sleep disturbance the plaintiff experiences is impacting his capacity to function at work.
3. It is not at all clear how the plaintiff's evidence of being regularly awoken during the middle of the night by his neck pain is to be reconciled against his evidence that he works nightshift four out of the seven days in a week. In any event, beyond vague evidence about feeling tired, fatigued and lacking energy, there is no specific evidence about how these feelings impact on his daily living, his capacity to function at work or to engage in social activities or activities with his family. Accordingly, I do not consider there to be any significant impact by reason of any interrupted sleep.

1. There is no evidence about any adverse impacts that the plaintiff's sleep or any other factor is having on his current relationship.

1. The plaintiff says he has a restricted range of motion in his neck;[190] which also affects his capacity, inter alia, to bend down to pick up his child, and to lift his child, as well as undertaking tasks that involve overhead reaching, lifting, pushing pulling and climbing.[191]
2. Balanced against this is the video surveillance footage which shows no evident restrictions in the plaintiff's capacity to move his neck quickly in all directions, lift or bend or twist and to power walk and to climb in and out of and drive a heavy motor vehicle as part of his work, and to do so by driving regularly to Warrnambool some 3 and a half hours away. And as already noted, the video surveillance footage also shows the plaintiff lifting, throwing and catching his child without any evident difficulty or restriction.
3. Ultimately such restrictions as may exist in the plaintiff's mobility are not evident on the objective evidence nor in my observations of the plaintiff whilst he was in Court giving evidence. Accordingly, I do not accept any significant impact because of any mobility restrictions.

1. There is no evidence about any impact on the plaintiff's capacity for self-care.
2. There is evidence that the plaintiff's performance of household and family duties has been affected as he avoids mopping, vacuuming and other household duties that require repetitive pulling and pushing.[192] There is evidence that the plaintiff continues to undertake domestic duties such as driving his family, and shopping with his partner and son.[193]
3. Whilst I accept that the plaintiff may avoid certain household tasks such as mopping and vacuuming, I do not accept that he does so because he wants to avoid repetitive pulling and pushing. Although during cross-examination the plaintiff disagreed with a proposition that since he can drive for multiple hours each day and roll vehicle tyres over stacks, his neck symptoms would not prevent him from doing something like vacuuming or mopping, I consider that the requirements of his job as described together with observing the surveillance footage suggests a level of capacity which is inconsistent with any notion that he cannot without pain or restriction vacuum or mop. Additionally, there is no evidence about how frequently he used to vacuum and mop before his injury nor is there any evidence from his current partner which might corroborate the plaintiff's evidence.
4. Overall, I do not consider the plaintiff's activities of daily living have been materially impacted.

1. As noted earlier, the plaintiff ceased volunteer firefighting, golfing, and says he cannot lift heavy weights at the gym. I accept that the plaintiff has ceased volunteer firefighting, but I do not accept that he is thereby prevented from continuing an association with the CFA in several other capacities, were he minded to do so. I accept that his golfing activities have diminished, but on his own evidence they were not so frequent as to warrant a mention in his pre-employment questionnaire about whether he participated in sport. The same may be said about his gym activity. In any event, on his own evidence, he is prevented from lifting heavy weights in the gym. He is not prevented from going to the gym to participate in other exercises. That he can operate a heavy motor vehicle and bounce tyres as part of the delivery process as well as observing his capacity in the surveillance footage all suggests that there are multiple activities in the gym that he could undertake, if he wanted to keep up with gym attendance and exercise. Overall, there has been some but not significant impact in this regard.

1. The plaintiff's current employment as a delivery driver requires a lot of driving, for example, often driving 3 and a half hours to Warrnambool, stopping along the way to make deliveries. Further, when with his partner, the plaintiff will drive. The plaintiff says he has to rely on his mirrors almost entirely when driving, however, he is able to do head checks when driving. The surveillance video footage does not suggest there is any restriction in the plaintiff's head and neck movement which would prevent him from doing head checks for blind spots when driving. I do not consider the plaintiff's driving to have been materially affected.

1. For the reasons earlier explained, I consider that any work-related injury was minor and transient, and the plaintiff has since recovered. The evidence suggests, and I accept that any current symptoms are attributable to degenerative changes rather than the incident in question. I am not persuaded that there is any permanent impairment or loss of a body function. Consequently, I do not consider the plaintiff's injury complained of to be permanent and so it cannot be a "serious injury" within the meaning of s 325(1) of the Act.
2. But if I am wrong, such incapacity as continues is not serious. The plaintiff's complaints of the severity of the pain he experiences are inconsistent with his observable and evident uninhibited capacity during the surveillance videos as well as my own observations of him whilst he gave evidence. His work capacity is largely unaffected and maintains a job and career which is comparable to that which he held before the injury, into which he afterwards returned.
3. The plaintiff's capacity to engage in daily living activities has also been largely unaffected as the video surveillance shows.
4. The plaintiff's capacity to participate in and enjoy some of the activities and hobbies he enjoyed before the injury have been negatively impacted and is a loss. But on the totality of the evidence, and the combined impact of the different matters discussed above, I am not persuaded that any residual impairment, considering the level of the plaintiff's pain and suffering consequence discussed above, meets the "very considerable" test in s 325(2)(c) of the Act. When comparison is made with a range of cases, including cases involving impairment of the brain, the spine and larger or weight bearing joints, and cases involving consequences such as pain requiring prescription medication, significant medical treatment, significant sleep deprivation and inability to work or socialise, the plaintiff's impairment falls short of the statutory threshold.
5. Consequently, the plaintiff's impairment of a body function if permanent, is not serious for the purposes of assessing serious injury in accordance with s 335(2) of the Act because the pain and suffering consequence discussed earlier is not, when judged by comparison with other cases, in the range of possible impairments of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
6. The application for leave to bring proceedings for pain and suffering damages is refused.
7. I will hear the parties on costs.

[4] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129

[7] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, 31 VR 1

[10] Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26 at [63]

[11] Haden at [12], citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at [171]; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at [142]-[145]

[12] Haden at [12], citing Sabanovic at [142]

[16] Plaintiff's Court Book (PCB) 14, 15

[27] Defendant's Court Book (DCB) 31-37

[45] T6, L24- 26; PCB 39

[58] T13, L27-31; T14, L1- 2; PCB 14 at [15]

[62] PCB 18 at [5]; T8, L17-23; T35, L24-31; T36 L1-4

[177] Haden Engineering at [15]; T110, L12-26