Manger v VWA [2025] VCC 1017

1. Counsel for the defendant submitted that I should rely on the clinical examination findings of:

(a) Associate Professor Romas and Dr Manolopoulos to find that there was no objective evidence of dysfunction caused by the right hamstring injury and no objective evidence of dysfunction in the right leg respectively; and

(b) Mr Widjaja, who found limited objective abnormality with respect to resisting knee flexion.

1. No issue was taken with Mr Manger's credit or reliability as a witness, save that the history taken by the medical experts regarding the absence of muscle weakness may suggest some unconscious exaggeration by Mr Manger in his affidavit regarding having weakness in his right knee.
2. Thus, the only real issue for determination in this case was whether Mr Manger's impairment consequences met the narrative test for serious injury on the basis of his pain and suffering consequences, entitling him to leave to proceed with a claim for damages.
3. The part of the body said to be impaired for the purposes of paragraph (a) was the right lower limb, specifically the right hamstring.
4. The legal principles to be applied were not in dispute.
5. The hearing proceeded in the usual way. Mr Manger was the only witness to give oral evidence. There was one lay affidavit tendered from his wife, Ms Leanne Manger, sworn 17 February 2025. The parties otherwise tendered various reports from their respective court books.
6. I have considered the affidavits, the evidence of Mr Manger at the hearing and the evidence of the experts relied upon at the hearing. While I do not propose to refer to all the evidence in providing my reasons, I shall refer to the evidence to the extent necessary to explain my reasons.
7. For the reasons set out below, I find that Mr Manger is entitled to leave to proceed with a claim for damages for his pain and suffering arising from the injury to his right lower limb sustained on 28 July 2021.

1. Mr Manger swore two affidavits in support of his application on 20 May 2024 ("the first affidavit") and 17 May 2025 ("the second affidavit").

1. In his first affidavit, he deposed to being born in 1960 and being married with three adult children and three grandchildren. After leaving school, he qualified as a fitter and turner.
2. He had a pre-existing medical history of gout from approximately April 2006 and sustained an injury to his left knee while descending a ladder at work in June 2020.
3. On or about 7 May 2018, he commenced employment with Commtel ("the employer") as a full-time mechanical fitter. The employer built communication shelters out of shipping containers, and he deposed to his work being "heavy and physically demanding with lots of lifting, bending and squatting".[3]
4. Following his injury, Mr Manger was taken by ambulance to Royal Melbourne Hospital and was given some analgesic medication and discharged later that same day.[4]
5. After his discharge, the pain in his leg was severe and he was unable to sit down or do anything that placed strain on his leg for the first five weeks or so.[5]
6. On 7 August 2021, he completed a WorkCover claim form, which was accepted.
7. On 15 September 2021, he underwent an ultrasound of his right posterior thigh and also started physiotherapy treatment with Mr Thornton.[6]
8. A few months after the incident, he returned to work on light duties and reduced hours. However, he had ongoing pain in his leg, difficulties with bending, squatting and going up and down ladders. His leg had also become very weak.[7]
9. In early 2022, he was referred by his general practitioner to Mr Widjaja, a surgeon, who also sent Mr Manger for an MRI.
10. On 4 March 2022, he was made redundant by the employer, whilst he was still on light duties. In his oral evidence, he stated that he was made redundant along with seven other workers.[8]
11. On 4 March 2022, he underwent an MRI of his lumbar spine, pelvis, right hip and right thigh. Upon review of the MRI, Mr Widjaja told him that there was too much scar tissue for him to operate and that Mr Manger should have undergone surgery much earlier.[9]
12. In approximately July 2023, he commenced employment with R.A. Bell, who is his current employer.
13. On 15 August 2023, he completed an Impairment Benefits claim form, which was accepted.
14. In terms of treatment, Mr Manger's evidence was that he ceased treatment for his leg, as the physiotherapy treatment was too painful.[10] He said that he had continued to suffer from constant pain down the back of, and slightly to the inside of, his right leg, which went down to his right knee.[11] The pain had not stopped since the injury on 28 July 2021.
15. He said that his leg pain increased when walking, and that the longer he walked, the worse his pain became. Before his injury, he used to walk six to eight kilometres at a time for fitness and exercise, but he was now limited to two kilometres or so as the pain in his leg became too much.[12] He said the pain took the enjoyment out of walking.[13]
16. His right leg is "very weak" and he no longer rides a bicycle because his right leg lacks the strength to push down on the pedal repetitively.[14]
17. As a result of his injury, he has become less active than he used to be and has gained approximately ten kilograms in weight.[15]
18. He struggles with the pain associated with walking up and down stairs and steps, due to the weakness in his right leg.[16] As such, he avoids using ladders as much as possible. He also struggles with squatting or kneeling because of the knee pain, and has to be careful not to lift anything heavy because doing so places a lot of strain on his leg.[17] This makes it difficult for him to engage completely with his work as a fitter.
19. He has declined to do overtime at his current workplace, as he has increased pain after a normal shift.[18] Following a shift, he needs to go home and rest. He stated that if he did not have the injury to his leg, he would work overtime because he could do with the extra money.[19]
20. He deposed to the fact that his leg pain has also impacted the activities that he could do with his grandchildren.[20] For example, he could not kick a football with his grandchildren at the park, or run around and chase them like they would like him to.
21. He also was "very keen" on gold prospecting prior to his right leg injury, and would regularly go prospecting in places like Creswick and Maryborough.[21] He would spend whole days prospecting, which often involved walking up and down hills and over fairly rugged terrain. After his right leg injury, he tried returning to gold prospecting but found it difficult and painful due to the long periods of walking on the uneven ground.[22] Apart from this one instance, he has not been able to return to gold prospecting.
22. His sleep is also impacted by his leg pain, and he has to sleep with a pillow between his legs, otherwise he will wake up with leg pain.[23] He is frustrated about his leg pain and the way it affects his life.[24]

1. In his second affidavit, Mr Manger stated that he was still in employment with R.A. Bell as a full-time mechanical fitter. He deposed to needing to work and that he could not afford to stop, despite the fact that he continued to suffer from the pain and difficulties he deposed to in his first affidavit.[25]
2. He deposed that at the end of each working day, he is sore and tired.[26] He usually sits down on the lounge and rests his leg. Due to the increase in his right leg pain following work, he feels tired and grumpy. He deposed to the pain gradually getting worse as the day wears on.[27] As such, he has lost a lot of the enjoyment he used to get out of working.
3. He stated that he misses gold prospecting and that he mostly did it for fun, but he also made some money from it from time to time.[28] He estimated that prior to his right leg injury, he made approximately $20,000 from finding and selling gold.[29] His gold prospecting equipment was expensive and now sits at home unused.
4. In 2023, he travelled to Spain and the Canary Islands for his son's wedding. He found the flights uncomfortable due to his right leg pain.[30] Although he enjoyed the holiday, he found walking around painful and difficult, especially with all the steps in the tourist areas and around train stations.[31] This experience has caused him to be apprehensive about his ability to travel and do "touristy" things in retirement, especially as his walking tolerance is very limited due to his right leg pain.[32]
5. His sleep continues to be affected by the pain and he often sleeps in a different bed to his wife to avoid regularly waking her up when he wakes up in the night with leg pain and needs to move around.[33]

1. Mr Manger gave oral evidence at the hearing. His evidence was that:

(a) When he suffered from gout, his ability to walk for a long time was affected.[34] When he had gout, it lasted for two to three days and would disappear once he took Indocid.[35] It was usually brought on by eating tomatoes or seafood.[36]

(b) He did not have any treatment for his left knee injury.[37] He could not recall whether he had time off, but if he did, it would not have been for long. He was not restricted in walking long distances in the time between the left knee injury and the right leg injury.[38] He could walk over uneven ground and up and down ladders in the 12 months leading up to his right hamstring injury without any problems. He got back to normal reasonably quickly after the left knee injury.[39]

(c) He did not mention his right hamstring injury to R.A. Bell at the time he applied for the work, nor did he ask for modifications to the work as a fitter.[40] However, the work he is currently undertaking is lighter work, as it involves the assembly of parts.[41] His duties with R.A. Bell do not require as much heavy work as he used to do with his former employer.[42] His supervisor at R.A Bell was aware of his injury and did not ask him to do the heavier or harder work. He mainly gives him lighter work to do. He can sit on a stool and do his work a lot of the time.[43] The work of a fitter and turner involves fabrication, assembly and installing machinery and equipment. He is not required to undertake fabrication in his work with R.A. Bell.[44] He is on his feet for most of the day.

(d) His doctors have told him that he has a five kilogram lifting restriction but he will try lifting things within reason.[45] He is not required to lift more than five kilograms on a daily basis.

(e) He continues to work as he does not believe that he can afford to retire yet.[46]

(f) He used to love his work.

(g) He has not been prescribed any medication to treat the pain from his injury. He is not one for taking painkillers.[47] He takes Indocid (which has been prescribed for his gout) if the pain is bad.[48]

(h) He did not ask his general practitioner to refer him for a second opinion after Mr Widjaja said that he would not operate on him.[49]

(i) He has had weakness in the right leg since the date of the injury.[50]

(j) He has difficulty with activities such as putting on socks and climbing into higher vehicles.[51] If he tries to squat down too far, it feels like his leg will collapse.[52]

(k) That the symptoms in his thigh could be described as tenderness.[53]

(l) He does not climb up and down the stairs at work.[54]

(m) He does not feel like the injury has been getting better over time.[55]

(n) He had been hoping to spend more time on activities such as gold prospecting when he retired. As a result of his injury, he said that "the prospecting side of things isn't looking good" as it would require him to do things he now struggles to do, such as traversing uneven ground, climbing over tree branches and getting down on his hands and knees.[56] He believed he had been prospecting plenty of times after his left knee injury and before his right hamstring injury.[57]

(o) He believes he purchased a bike after his left knee injury and prior to his right leg injury. He last rode the bike with his granddaughter about six months ago but found it too painful.[58]

1. Ms Manger swore an affidavit on 17 February 2025 in support of her husband's application.
2. In her affidavit, she said that:

(a) When their granddaughters were younger, Mr Manger used to do many things for them including taking them to the park, kicking the football with them, playing hide and seek and chasing them around.[59] He can no longer do the activities he used to do with his granddaughters with his one year old grandson due to his pain and inability to get off the ground.[60]

(b) They avoid going to their eldest son's house because there are numerous stairs.[61] Ms Manger is frightened when Mr Manger goes down the stairs at their house, and observes him "hanging onto the wall" as he goes down.[62]

(c) Prior to his injury, Mr Manger would regularly go gold prospecting, fishing and bike riding. Since his injury, he rarely does any of these things and has become "very irritable", particularly after returning home from work.[63] This has impacted the quality of their conversations and their relationship.[64]

(d) Prior to his injury, Mr Manger used to be very active around the house and assisted her with household chores, however he no longer assists her with the household tasks as he previously did.[65] She now undertakes those chores on her own. One task that Mr Manger used to do was cleaning the inside of the windows, which he cannot do now as it requires him to bend down.[66] He occasionally assists with mowing the grass, and Ms Manger observes him suffering from pain following this.

(e) He regularly complains of pain, and she observes him limping.[67] He has to use a shoe horn to put his shoes on, and he struggles to get in and out of the car.

(f) Before Mr Manger's injury, they would often travel and loved long walks. Although they still try to travel, they are restricted in what they can do as Mr Manger cannot walk as far.[68] He will often ask to go back to their hotel room because he is tired and sore, which creates tension in their relationship as Ms Manger often has to go exploring alone.[69]

(g) Because of the pain Mr Manger experiences, they often do not sleep in the same bed and she is scared that she will accidentally hurt him.[70] This has a significant impact on their physical and emotional relationship and their intimacy is poor.[71] When they do share a bed, Mr Manger frequently wakes up during the night, whereas prior to his injury, he would sleep through the night.

(h) She feels that his injury has changed him as a person, as he has become more irritable, easily frustrated and withdrawn.[72] His injury has impacted both him and Ms Manger mentally, and she is scared for the future and how his injury will continue to impact on him.[73]

1. Dr Dzartov provided two reports that were tendered in this proceeding dated 5 August 2023 and 9 February 2024.
2. He has been Mr Manger's general practitioner since 4 October 2022.
3. In his first report, he advised that following the injury, Mr Manger was treated with rest and physiotherapy and was not able to return to his normal duties for four months.[74] He returned on modified duties and reduced hours, not lifting weights in excess of five kilograms or climbing ladders or undertaking heavy physical exertion.[75] He confirmed that as a result of downturn in the company's business, Mr Manger was made redundant on 2 March 2022.
4. Dr Dzartov diagnosed him as having suffered a tear of the right hamstring muscle and that his work was a significant contributing factor to his injury.[76]
5. He also advised that he continued to complain of significant pain and tenderness along the back of his right thigh and discomfort over long-term walking.[77]
6. He confirmed that Mr Manger had to stop physiotherapy as he found it unhelpful. He said that Mr Manger needed to avoid heavy manual work, stair climbing and prolonged stationary posture.[78]
7. Mr Manger could undertake ordinary household duties and assist his wife. He could undertake meal preparation, vacuuming, mopping and mowing the lawn. Dr Dzartov noted that he still suffered from right thigh discomfort on prolonged walking, that he could drive for a short distance, that he had had difficulty negotiating stairs, that he could not run and could lift weights under five kilograms.[79]
8. In his second report, Dr Dzartov noted that Mr Manger continued to complain of significant pain and tenderness along the medial side of the right knee.[80] He said he could not sit for too long, walk for too long and was unable to walk uphill. He said he could not run and was not able to ride his bike uphill.[81] He recorded he could not climb more than two to four steps or mow the lawn, and could only drive for a short distance. He said that Mr Manger's condition had improved significantly as muscle healing had occurred, but had not fully resolved and he was not able to do the work he previously did. He was still taking regular analgesics for pain control. He needed to avoid heavy manual work, heavy lifting, stair climbing, prolonged stationary posture and prolonged sitting standing or walking.[82] Dr Dzartov believed that the hours that Mr Manger was working in his role were the limit of his current work capacity, and that would continue into the foreseeable future.[83]

1. The progress notes of the Sydenham Medical Centre from 10 February 2002 to 12 September 2022 were relied on at the hearing.
2. In particular, the entries relating to Mr Manger's attendances and treatment for his left foot and toe relating to his gout on 6 April 2006, 22 February 2011, 6 December 2012, 18 September 2013, 11 June 2014 and 29 July 2014 were relied on, as were the entries of 21 June 2020 and 24 June 2020 relating to his left knee injury arising in 2020.

1. The progress notes from Our Medical Caroline Springs Medical Centre from 4 October 2022 to 24 February 2025 were relied on at the hearing, and in particular, the entries of 1 January 2025 and 24 February 2025 with Dr Dzartov relating to body aches and pains.

1. Mr Widjaja saw Mr Manger on two occasions, which were 7 February 2022 and 18 March 2022.
2. There were two pieces of correspondence and one report from him tendered in the proceedings, dated 7 February 2022, 21 March 2022 and 25 June 2024.
3. In his report dated 25 June 2024, he noted that the pain was improving very slowly at the time and Mr Manger had been taking paracetamol for analgesia.[84] He noted that there was no numbness or weakness in the lower limbs.[85]
4. He noted that there was mild tenderness around the posterior aspect of the thigh and that the hamstring power test was painful.[86]
5. He diagnosed him as having a right proximal hamstring chronic tear after reviewing the MRI of 6 March 2022.
6. He advised that he explained to Mr Manger that surgical repair of the tear of the hamstring would be very high risk and therefore it was not recommended.[87] He also explained that the pain could become chronic and may affect his ability to work. [88] He thought that physiotherapy would be helpful.
7. His opinion was that the chronic tear of the hamstring may affect his ability to undertake duties requiring the use of the lower limbs.[89]

1. Dr Manolopoulos saw Mr Manger on 22 February 2025 and provided her report on the same day.
2. She said he had constant medial thigh tenderness, pain medially with a loss of strength of the right leg, pressure medially in the thigh while sitting and progressive curling of the toes on the right foot, necessitating orthotics in the shoes.[90] She also said that he reported night pain which disrupted his sleep and that he had difficulty with stairs and ladders.
3. She noted that he felt less able to assist his wife with household chores. He reported difficulty gardening. He reported a driving tolerance of more than an hour and that he had difficulty getting out of his car after a long drive.[91]
4. She diagnosed him as having sustained a right adductor semimembranosus tear after his slip across the floor at work.[92]
5. She said that the prognosis was guarded, and noted that as his symptoms had continued after almost four years, she felt it was likely he would have persistent pain and dysfunction into the foreseeable future.[93] She noted he was coping with his loss of function admirably, that he continued to work in an alternative job and could perform some activities of daily living. She said that the treatment Mr Manger had undergone was expected based on his symptoms and level of weakness.[94]

1. Mr Manger saw Dr Rahgozar on 24 July 2023 and he provided a report dated 25 July 2023.
2. He said that Mr Manger had started his new job as a fitter and turner with a new employer working full-time about three weeks prior to seeing him.[95] He said he was doing his usual duties, however, he was slower than usual.
3. He said that Mr Manger reported that he had not had back pain, numbness or weakness of the lower limbs.[96] However, he went on to record that Mr Manger reported difficulty with coming back from sitting to standing position or from squatting to standing position with weakness of the right lower limb.[97]
4. He reported that on examination, Mr Manger walked slowly but without any abnormal gait and could climb a flight of stairs, although he reported some increased pain at the end of climbing the stairs.[98]
5. Dr Rahgozar reported that neurological examination of the lower limbs was normal. There was no overt tenderness or instability of the knee joints bilaterally. There was resisted knee flexion, which resulted in Mr Manger expressing pain and weakness on the medial aspect of the distal right thigh.[99]
6. He diagnosed Mr Manger as having sustained a distal semimembranosus tendon tear of the hamstring which had been managed conservatively with analgesics and exercise.[100]
7. Dr Rahgozar did not think that Mr Manger required any treatment at that time, apart from simple analgesics on an as-needed basis and exercises in the gym or hydropool to maintain and improve the muscles and strength of his right lower limb.[101]
8. In the long-term, he thought that Mr Manger should refrain from frequent kneeling, squatting, climbing up and down stairs steps, lifting and carrying heavy or large awkward shaped objects.[102] He thought that he had a capacity for suitable work, and had been able to obtain employment as a fitter and turner with modifications, which were appropriate.

1. Mr Manger saw Associate Professor Romas on 9 November 2023 and 4 April 2025, and Associate Professor Romas provided reports from each of those dates.
2. He noted that Mr Manger had tightness on elevation, difficulty with activities such as pulling of socks or climbing into higher vehicles, and no ongoing weakness with respect to his right hamstring.[103]
3. Associate Professor Romas diagnosed Mr Manger as having sustained a right hamstring tear, which had substantially resolved.
4. He said that the assertion of muscle wasting and dysfunction in the right leg was not supported on objective examination. He said there was no demonstrable atrophy, a normal gait, and the hip and knee strength were preserved. He said the main complaint was a subjective tightness in the hamstring when pulling on socks or walking long distances or uphill. Associate Professor Romas did not think this was unusual after conservative management of a high-grade hamstring tear, particularly in a man of Mr Manger's build.[104]
5. He thought that there was a discrepancy between Mr Manger's current functional capacity, which included full-time employment in a physically demanding trade and overseas travel, and the level of impairment or incapacity being asserted. He thought that the objective examination suggested that any work-related injury had resolved to the point that it no longer imposed a material limitation on his daily or occupational activities.
6. He thought that Mr Manger's prognosis was excellent, that his condition was stable, that he had functionally recovered and was working full-time.[105] He thought that Mr Manger had recovered well and that his current symptoms were subjective tightness only with no objective deficit.
7. He also said that he had no incapacity for work as a fitter and turner. He was currently employed in a comparable physical role and was managing his duties without restriction.[106] He thought that the effects of the injury had ceased in practical terms. He said that Mr Manger had functionally recovered and was working without support or restriction.[107]

1. Mr Manger saw Mr Miller on 10 September 2020 in connection with his left knee injury from June 2020.
2. The defendant tendered correspondence from Mr Miller to Mr Manger's then general practitioner, Dr Awad, regarding his consultation with him on 10 September 2020.
3. Mr Miller said that he had reviewed the MRI scan which revealed a large effusion in the knee, medial and lateral meniscal tear and chondro pathology.[108]
4. He thought that Mr Manger would benefit from a regime including anti-inflammatory agents, and that it was likely that his symptoms would deteriorate, leading to a requirement for left knee arthroscope. Mr Miller recommended that Mr Manger see how things evolved and if his symptoms deteriorated, he recommended that he get in touch with Mr Miller for further review.[109]

1. Counsel for the defendant did not take any issue with Mr Manger's credit and reliability, save that they submitted that there may have been an element of unconscious exaggeration regarding his affidavit evidence that his right leg was weak[110] given that Associate Professor Romas,[111] Dr Rahgozar[112] and Mr Widjaja[113] obtained a history from Mr Manger that he did not have right leg weakness.
2. I found Mr Manger to be an honest, forthright and straightforward witness who did his best to answer the questions asked of him. His account of his injury and his symptoms was consistent with that obtained by the medical experts who he has seen and whose opinions were tendered as evidence in his case. At no time did I form the view that he was attempting to mislead the Court or embellish or exaggerate his symptoms or his consequences. He was not a verbose man, which led me to conclude that he was more inclined to understate rather than overstate the impact of the consequences on him.[114] My view about this was also informed by Ms Manger's evidence, particularly concerning her evidence about the impact of Mr Manger's injury on their relationship.
3. I formed the view that he did his best to answer questions about why Associate Professor Romas, Dr Rahgozar and Mr Widjaja had recorded that he did not have right leg weakness in an honest way. His oral evidence was that the real issue with right leg weakness was with his "squatting, climbing and walking".[115] This was consistent with Mr Manger's other evidence about his restrictions and the opinion of Dr Rahgozer, Mr Widjaja and Dr Manolopolous about the restrictions Mr Manger would likely be subject to because of his injury.[116] It was also consistent with Dr Rahgozar and Dr Manolopoulos's accounts of Mr Manger's current symptoms.[117] I placed weight on the fact that no issue was raised by the medical experts about the reliability of the history, symptoms or restrictions described by Mr Manger because of his right hamstring injury.
4. I was therefore satisfied that his evidence about having a weak right leg was not inconsistent with the history obtained by the medical experts of no weakness in the lower limbs and did not impugn his credibility or reliability as a witness.
5. I was also satisfied with his evidence about the fact that neither the gout nor the left knee injury caused him any ongoing difficulty. This was both because of the consistency of Mr Manger's evidence and the absence of any evidence to the contrary. While Counsel for the defendant submitted that a four-centimetre meniscal tear requiring a referral to an orthopaedic surgeon was likely to have had an impact on his quality of life and recreational activities, there was no evidence of further treatment or a change to his employment following this incident. Although Mr Miller was of the view that Mr Manger would likely come to an arthroscopy for his left knee, he left it to Mr Manger to return to him in the event that his symptoms worsened and he required further treatment. I accept Mr Manger's evidence that his symptoms improved and consequently he had no need for any further treatment to his left knee.
6. The fact that Mr Manger was able to continue working and enjoying his recreational activities following his left knee injury informed my view that Mr Manger was likely a stoic person, a point I will return to in more detail below.
7. I was therefore satisfied that I could accept Mr Manger's evidence regarding his left knee injury.
8. I therefore found that he was a credible and reliable witness and I was able to accept his evidence.

What is the injury and impairment, and is it permanent?

1. The nature of Mr Manger's injury was not in dispute in this case. There was common ground between the medical experts that Mr Manger sustained a tear to the hamstring in his right leg as identified on the MRI scan of 6 March 2022.[118]
2. However, there was some dispute about whether Mr Manger had a permanent impairment and thus consequences arising from that injury.
3. As outlined above, Associate Professor Romas was of the view that Mr Manger had functionally recovered from his injury, and that any work-related injury had resolved to the point that he did not have any material ongoing limitations arising from that injury.
4. However, I formed the view that Associate Professor Romas did not appreciate the nature of the duties that Mr Manger was undertaking with R.A. Bell, given that he understood Mr Manger to be working in a comparable physical role to that he had with the employer, rather than the lighter duties that Mr Manger described in his evidence.[119]
5. Associate Professor Romas's opinion was at odds with Dr Dzartov, Mr Widjaja, Dr Rahgozar and Dr Manolopoulos regarding the permanent consequences that Mr Manger was likely to suffer because of the injury.
6. For both reasons, I preferred the opinions of Dr Dzartov, Mr Widjaja, Dr Rahgozar and Dr Manolopoulos regarding the permanent nature and consequences of the injury and impairment suffered by Mr Manger.
7. I therefore accept and find that Mr Manger has sustained a right proximal hamstring chronic tear as diagnosed by Mr Widjaja, which has caused a permanent impairment to the right lower limb.

Are the consequences of the impairment very considerable?

1. Because of the injury, Mr Manger is no longer able to enjoy his work in an unrestricted manner and has lost the ability to go prospecting for gold.
2. With respect to his employment, I accept his evidence that he continues to work because he is not in a financial position to stop working. He was working in light duties with the employer until he was made redundant. To his credit, he has found suitable alternative employment with R.A. Bell and has been able to maintain these duties, albeit that he is sore and tired at the end of each working day.
3. He has benefited from having a supervisor who allocates him duties that are suitable for him given the nature of his restrictions. He is not asked to undertake the heavier and more physical fabrication work, which would normally be part of what a fitter and turner would be asked to do, and he can sit at a bench to undertake some of his assembly work.[120] I accept his evidence that this job is not as physical as either his last job, or as a fitter and turner job might be expected to be.
4. I also accept that he does not go to the lunchroom as it would require him to climb the stairs, nor accept overtime when offered because he needs to rest following working his ordinary hours. Both things come at a cost: one being connection with his workmates and the other financial. These are considerable consequences.
5. I also accept that he has lost the joy he used to get from his work because of his injury. He said that he used to love his old job,[121] whereas he has now lost a lot of the enjoyment he used to get out of working due to his leg pain.[122]
6. Mr Manger has also lost his ability to go prospecting for gold. While he mostly did this for fun, he also made some money from it from time to time.[123] I also accept his oral evidence that he believes it is unlikely he will return to prospecting when he retires, as he is unable to manage the terrain and getting down on his hands and knees as a result of his injury and impairment.[124]
7. I also accept that the impact on his sleep and that he and his wife often sleep in separate bedrooms because of his pain is a considerable consequence. I placed weight on the evidence of Ms Manger in addition to that of Mr Manger in arriving at this conclusion.
8. He has constant and daily pain down the back of, and slightly to the inside of, his right leg down as far as the knee. The pain is worse after a day of work and worsens throughout the day. He feels tired and is often grumpy because of his increased pain. I accept Ms Manger's evidence that this affects the quality of their conversations and thus their relationship.[125]
9. While he does not take analgesia for this pain, he has found that Indocid relieves the symptoms when the pain is really bad. While the absence of either being prescribed, or taking over the counter pain relieving medication, might suggest that the pain is not at the level of 'very considerable', this must be considered with all the other consequences arising from Mr Manger's impairment.
10. I have placed weight on the fact that Mr Widjaja advised Mr Manger that surgery to his right leg would have been warranted had he been referred to him earlier. I found this to be significant. I accepted Mr Manger's evidence about why he had not sought a second opinion about further treatment options, and why he had ceased physiotherapy treatment: that is, it was causing him increased pain and he was not deriving any benefit from it.[126] I placed weight on the fact that there was no evidence that there was any medical treatment that he should be considering or undertaking that would alleviate his pain and symptoms in arriving at this conclusion.
11. Mr Manger is no longer able to play with his grandchildren in the way that he would like to because of his injury and impairment. He is restricted in his ability to kick a football, run around with them or ride a bike with them. He is physically less capable of engaging with them than he was prior to his injury, as supported by the evidence of Ms Manger.[127] I accept that this is a considerable consequence for Mr Manger.
12. He is also restricted in his ability to walk. He used to regularly walk for six to eight kilometres at a time, whereas he is now limited to walking about two kilometres because of his pain.[128] He is also conscious of the terrain he walks over.[129] While he still goes walking with his neighbour,[130] I accept that this limitation has reduced the enjoyment that he used to derive from walking, in addition to reducing his overall physical activity and the health benefits he obtained from it.
13. He has also gained weight because of his reduced activity, which I accept is a significant consequence.
14. Overall, I found Mr Manger to be a stoic person. He was more inclined to understate than overstate his symptoms and consequences. The fact that he has found and maintained suitable employment following his right leg injury is commendable and a mark of his stoicism, as was his ability to continue working and enjoy his recreational pursuits following his left knee injury. I also formed the view that the fact that he copes with his pain without medication was as a result of his stoicism.[131]
15. In considering what he has lost I am also required to consider what he has retained. He has retained the ability:

(a) to work with the restrictions outline above;

(b) for self-care, albeit that he has adapted the way he does things. He cannot lift his right leg up to put his shoes on but has found a way to use a shoe horn to make this more comfortable.[132] He can mostly undertake activities such as showering, dressing and toileting independently;

(c) to assist with household duties, albeit that he avoids activities that require him to squat for long periods such as cleaning the shower.[133] I accept Ms Manger's evidence that he used to clean the inside of the windows but cannot do this now because of the bending involved;[134] and

(d) to go for walks, albeit for shorter distances, on flat terrain.

1. Taking all the evidence into account and comparing Mr Manger's injury and impairment to other cases, I find that the consequences of Mr Manger's right lower limb injury and impairment consequences are fairly described as being at least very considerable, and more than significant or marked.

1. I find that Mr Manger is entitled to leave to proceed with a claim for damages based on his pain and suffering because of the injury to his right leg sustained on 28 July 2021.
2. I ask the parties to draft orders to reflect this finding and will hear from the parties on the question of costs.

[1] The plaintiff abandoned reliance on the lumbar spine and osteoarthritis of the right knee at the

[2] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140 ("Humphries")

[3] Exhibit P1, Plaintiff's Court Book ("PCB") 31, at paragraph [3]

[4] Exhibit P1, PCB 32 at paragraph [5]

[5] Exhibit P1, PCB 32 at paragraph [6]

[6] Exhibit P1, PCB 32 at paragraph [8]

[7] Exhibit P1, PCB 32 at paragraph [9]

[8] Transcript ("T") 9, Lines ("L") 28-30

[9] Exhibit P1, PCB 32 at paragraph [12]

[10] Exhibit P1, PCB 32 at paragraph [15]

[11] Exhibit P1, PCB 32 at paragraph [16]

[12] Exhibit P1, PCB 33 at paragraph [18]

[14] Exhibit P1, PCB 33 at paragraph [19]

[15] Exhibit P1, PCB 34 at paragraph [23]

[16] Exhibit P1, PCB 33 at paragraph [20]

[17] Exhibit P1, PCB 33 at paragraph [22]

[18] Exhibit P1, PCB 33 at paragraph [23]

[20] Exhibit P1, PCB 33 at paragraph [24]

[21] Exhibit P1, PCB 33 at paragraph [21]

[22] Exhibit P1, PCB 33 at paragraph [21]

[23] Exhibit P1, PCB 34 at paragraph [25]

[24] Exhibit P1, PCB 34 at paragraph [27]

[25] Exhibit P1, PCB 35 at paragraph [2]

[26] Exhibit P1, PCB 35 at paragraph [2]

[27] Exhibit P1, PCB 36 at paragraph [2]

[28] Exhibit P1, PCB 36 at paragraph [5]

[30] Exhibit P1, PCB 36 at paragraph [6]

[33] Exhibit P1, PCB 36 at paragraph [7]

[59] Exhibit P1, PCB 39 at paragraph [6]

[63] Exhibit P1, PCB 39 at paragraph [7]

[65] Exhibit P1, PCB 39 at paragraph [8]

[67] Exhibit P1, PCB 39 at paragraph [9]

[68] Exhibit P1, PCB 40 at paragraph [10]

[70] Exhibit P1, PCB 40 at paragraph [11]

[72] Exhibit P1, PCB 40 at paragraph [12]

[88] Exhibit P1, PCB 56; I note that he said 'function to work' which I have inferred to mean ability.

[94] Ibid; I note that she used the word 'expectant' which I have inferred meant expected.

[110] Exhibit P1, PCB 3 at paragraph [19]

[114] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [13]; Sutton v Laminex Group Ltd [2011] VSCA 5 at paragraph [83]

[116] Exhibit D1, DCB 7; Exhibit P1, PCB 56 and 57; PCB 70 and 71

[117] Exhibit D1, DCB 6; Exhibit P1, PCB 66 and 67

[118] Exhibit P1, PCB 56; Exhibit P1, PCB 70; Exhibit P1, PCB 54; Exhibit D1, DCB 22 and Exhibit D1,

[122] Exhibit P1, PCB 36, at paragraph [2]

[125] Exhibit P1, PCB 39 at paragraph [7]

[127] Exhibit P1, PCB 39 at paragraph [6]

[128] Exhibit P1, PCB 33 at paragraph [18]

[131] Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [13]; Sutton v Laminex Group Ltd (supra) at paragraph [83]; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 at paragraph [70]; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3]

[134] Exhibit P1, PCB 39 at paragraph [8]