Murphy v Victorian WorkCover Authority [2026] VCC 454

1. The plaintiff seeks leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 ("the Act") for the injuries he suffered in the accident
2. The application is brought pursuant to sub-paragraphs (a) and (b) of the definition of "serious injury" as that term is defined in s325(1) of the Act, namely:

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

... ."

1. The impairment relied upon is the function of the spine.
2. In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase "serious injury", by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff's employment with the employer on or after 1 July 2014. As set out in s325(1) of the Act, the impairment of the body function must be "permanent".
3. The plaintiff must prove the elements of his application on the balance of probabilities.
4. In relation to an injury which relates to the impairment of a body function, by s325(2)(c) of the Act, it is the "consequences" of the bodily impairment which produce, relevantly, the "pain and suffering", which must be "serious". That is, the plaintiff must prove on the balance of probabilities, that the impairment or loss of body function results in relevant "consequences" that are "when judged by comparison with other cases in the range of possible impairments fairly described as being more than significant or marked, and as being at least very considerable". This has been referred to as the "narrative" test. It has been held that this task is largely a question of impression or value judgement.[1]
5. In determining the application, the Court:

(a) must assess whether the injury is a "serious injury" as at the time the application is heard;[2]

(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]

1. Section 325(2)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
2. In determining the seriousness of the "consequences" of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the impairment arising from the injury the subject of this application and the range of possible impairments, losses of body function or disfigurement, as the case may be.
3. It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[4] To undertake this task, the plaintiff must establish what physical injury was caused by the accident. The Court must then determine the consequences of that injury to the plaintiff, disregarding any consequences which the Court finds arise from circumstances other than the claimed physical impairment.[5] If the Court is satisfied that the consequences of the physical injury alone are "serious" and "long term", then the plaintiff will have demonstrated that he is suffering from a "serious injury" under the Act.[6]
4. In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[7] and Grech v Orica Australia Pty Ltd & Anor.[8]
5. The plaintiff relied upon two affidavits, affirmed by him on 26 June 2025 and 21 January 2026, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit from his wife, Kaylene Murphy, affirmed on 21 January 2026. Ms Murphy was not required to attend for cross-examination.
6. In addition, both parties relied upon medical reports and other materials which were contained in the Court Books,[9] or were otherwise tendered. I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.

1. In his affidavits and during his viva voce evidence, the plaintiff gave evidence about the following consequences to him, of the injury to his spine:

(a) he constantly experiences lower back pain which varies in intensity. It is a sharp pain. He often has pain that goes into his backside and down the back of both legs to around his knees. He describes this as a burning-type of pain;

(b) partly as a result of his back pain, he retired from work in about April 2022. He had been planning to retire at the age of sixty-seven, or even seventy. He feels that he has lost a couple of years' work because of his back pain. He described working full time up until his retirement during which he had to "[push] through the back pain";

(c) he presently takes Panadol and Meloxicam (an anti-inflammatory), as needed. He does stretches and exercises for his lower back each day. In addition, he takes other medication for his other medical issues;

(d) he describes his sleep as "pretty terrible, as I tend to wake up every couple of hours". He deposed that if he rolls on his side, it tends to wake him up with back pain. Before the accident, he described his sleep as "pretty good";

(e) after sitting for a short time, he experiences increased back pain and also pain in both of his legs. This did not occur prior to the accident. He also finds it hard trying to bend, twist and lift things, especially heavy things, due to his back pain. He tries to avoid doing these motions if he can. Before the accident, he was able to undertake these activities and "felt like I was pretty strong". Now, after he has been standing or walking for a long time, he experiences increased back pain. He now finds it harder walking up or down hills, walking up or down stairs, or walking over uneven ground, due to his back pain. Prior to the accident, he had no trouble with these activities;

(f) he now finds it harder squatting, bending or "getting down low" due to his back pain. Prior to the accident, he had no problem with these activities;

(g) as a result of his back pain, he has put on weight, as he is unable to exercise in the way that he used to;

(h) he now finds it hard when he has to sit to go to the toilet. He feels like his back "locks up" and the action of twisting around to wipe himself is "the worst thing". He did not have any issues with this activity prior to the accident;

(i) he has difficulty putting on and taking off his socks and shoes, due to his back pain. He now has a sock aid and a shoehorn to help with his shoes. He generally tries to wear thongs as they are easier to slip into. He avoids wearing lace-up shoes when he can. Prior to the accident, he did not have difficulties with these activities. He now finds it harder washing his feet and drying himself with a towel and bending over, due to his back pain. Prior to the accident, he had no trouble with these activities;

(j) he used to enjoy weeding and mowing the lawns about once a week, prior to the accident. Now he finds it harder to garden and tries to avoid the weeding with the bending down due to his back pain. He still does the mowing once a week but takes more time to perform this task, due to his back pain. He will do the front lawn one day and the back lawn the day after. He tries to break up his domestic chores and not do them all in one go. He did not need to do this prior to the accident;

(k) due to his back pain, he finds engaging in activities with his grandchildren, such as kicking the football, difficult. He is "definitely less active" than he used to be with his grandchildren. This makes him feel terrible;

(l) prior to the accident, he used to enjoy doing renovations and maintenance on his home, which is a Victorian weatherboard. Now he finds it very hard to do any maintenance-type jobs. He avoids doing these types of activities due to his back pain.[10] He deposed to the fact that when he does try to do this sort of work, "I really battle through the pain and I pay for it with pain afterwards".[11] He deposed to the fact that as a result of this situation, he is going to have to pay someone to re-paint his house. This is a job he would previously have been able to do himself.[12] Similarly, he gave viva voce evidence that when he had to replace the decking around his house, he tried to do it himself but, in the end, was unable to do so because of his back pain. He got a friend to do this job for him;[13]

(m) about five years ago, he took up golf to try and stay active. He now finds it harder playing golf, as it aggravates his back pain, especially swinging the clubs. He used to play eighteen holes of golf three times a week. He now plays nine holes of golf, once per week. He pushes himself through his back pain as he is trying to continue to do some sort of exercise. Prior to the accident, his handicap was about twenty. Now it is about thirty-three. Prior to playing golf, he takes pain medication for his back. After playing golf, he "pays for it" with increased back pain. After playing golf, he has to take it easy for a few hours on a recliner chair and not do too much, because of the fact that playing golf causes him to experience increased back pain;

(n) prior to the accident, he went caravaning about once per month. Now he still goes on caravan trips with his wife, but it is less frequent. That is because he finds it hard setting up and packing up the caravan, because of his back pain. Prior to the accident, the plaintiff and his wife were planning on caravaning around Australia. Now he is too scared to do this, because of his back pain. Sitting and driving for long periods of time and setting up/packing up the caravan, "is a lot harder" because of his back pain;

(o) he feels like his concentration has reduced because of his back pain. Prior to the accident, his concentration "was pretty quick and sharp";

(p) he is not enjoying his retirement years as much as he would have, because of the back pain that he continues to experience;

(q) prior to the accident, he and his wife used to share the housework. He had no trouble doing the vacuuming, making the bed and doing general housework. Now he avoids doing most of the housework, due to his back pain;

(r) he now finds the grocery shopping and walking for a long time hard, due to his back pain. He tries to avoid lifting heavy groceries because of his back pain. Prior to the accident, he and his wife did big shops about once per week. Now he tends to do smaller shops more often, so there is less lifting involved;

(s) prior to the accident, he enjoyed fishing at least once a month. Now he avoids going fishing because of the long periods of time standing and sitting, which increases his back pain;

(t) prior to the accident, he used to enjoy watching his AFL team play about once a month. Now he avoids doing this as sitting, walking and standing for a long time aggravates his back pain;

(u) he finds it hard to drive for long periods because the prolonged sitting increases his back pain. Now he tries to get out and take a break when he can. Prior to the accident, he did nearly all of the driving. Now he shares the driving with his wife, due to his back pain. He also tries to drive just locally, to assist with managing his back pain;

(v) he is a member of the Maryborough Highland Society. He and his wife used to go to functions with other members every Friday night, for a few bours. It was a big part of their life. They had a lot of friends who they would meet up with at that event. Now they only go every few months, probably for lunch for an hour or so. His social life in general has "gone very quiet now".[14]

1. Mrs Kaylene Murphy, the plaintiff's wife, gave the following relevant evidence:

(a) prior to the accident, the plaintiff had intended to work until at least the age of sixty-seven years and probably longer. The plaintiff stopped work in 2022, mostly because of his back pain;

(b) the plaintiff presently experiences constant lower back pain. He often has pain that goes from his backside down both his legs. She can see when the plaintiff is in pain, because he finds it difficult to move, shows the pain in his facial expressions and also swears at times;

(c) often the plaintiff's back "locks up". When that happens, he finds it hard to do anything for the rest of the day;

(d) the plaintiff has told her that his knee is now "pretty good";

(e) the plaintiff takes regular medication for his back pain. He also does exercises to manage his back pain "most days";

(f) the plaintiff's sleep is interrupted because he finds it hard to get comfortable due to his back pain. Before the accident, the plaintiff's sleep was "a lot better";

(g) the plaintiff finds it hard to sit, stand or walk for long periods of time, because of his back pain. For the same reason, he has difficulty bending, twisting or lifting heavy things and struggles with walking up and down hills, or over uneven ground;

(h) the plaintiff has put on weight since the accident;

(i) due to his back pain, the plaintiff finds it hard to get off the toilet. He struggles with putting on or taking off his shoes and socks. He is no longer able to garden as he used to. He finds it hard to dry himself after a shower. He also finds it difficult to play with his grandchildren;

(j) the plaintiff now avoids doing any renovation or maintenance work on their house, because of his back pain. The plaintiff and his wife go caravanning less than they used to. Prior to the accident, they were planning to take their caravan around Australia. They are not going to do this now, because of the plaintiff's back pain, which causes him difficulty with driving;

(k) the plaintiff is unable to play golf in the way that he used to. When he does play golf, he lies in his recliner chair afterwards, "not doing much";

(l) the plaintiff no longer assists with housework. He no longer wants to go out or to see people. Prior to the accident, the plaintiff used to help around the house and had an active social life. He was "relaxed, fun and happy". Now at times, he gets "angry and frustrated with himself", because of his back pain.

1. The plaintiff was treated after the accident by three general practitioners, Dr Robert Carson, Dr Francois Nieuwoudt and Dr Prabhjit Singh Sandhu. The plaintiff relied on one report from Dr Carson, dated 3 February 2009;[15] two reports from Dr Nieuwoudt,[16] dated 23 June 2020 and 14 March 2024, and two reports from Dr Sandhu, dated 5 February 2026 and 17 February 2026.[17] In addition, the plaintiff relied upon two reports from Ms Lai Low, physiotherapist, dated 24 June 2020 and 17 July 2020.[18]
2. The plaintiff also relied upon one medico-legal report from Mr Stepen Doig, orthopaedic surgeon, dated 24 September 2025.[19]
3. Each of the plaintiff's doctors were of the opinion that the plaintiff had suffered a work-related injury to his lower back. Mr Doig described the plaintiff as having suffered from significant degenerative change in his back, but noted that there had been a marked exacerbation of that, and described the diagnosis as one of "exacerbation of pre-existing moderately symptomatic lumbar spondylosis".[20]
4. Dr Sandhu analysed the radiology that had been performed at various times since the onset of lower back pain in around 2008 up to the present day. He described that radiology as demonstrating the following:

"He reports the onset of lower back pain around 2008 while performing his usual work duties. He was medically reviewed at that time, and a CT lumbar spine performed on 11 September 2008. It showed multilevel degenerative disc and facet joint changes, with a left-sided annular disc bulge at L4/5 and likely compromise of the exiting left L4 nerve root. He continued working. > > In 2020, he reports a[n] exacerbation of lower back pain following heavy lifting at work. Further medical review was undertaken, and a CT lumbar spine dated 18 June 2020 demonstrated progression of degenerative lumbar spine disease, including multilevel disc bulges, facet joint hypertrophy, foraminal stenosis with impingement of the exiting left L4 and right L3 nerve roots, subtle anterolisthesis at L4/5 and L5/S1, and mild to moderate central canal stenosis at L4/5. He had conservative treatment including physiotherapy and chiropractic management, with limited benefit. > > He also has a history of knee pathology, with progression to a right total knee replacement in late 2021. > > Mr Murphy retired from employment in April 2022. He reports that this decision was based on the chronic lower back pain, with his knee condition being a secondary contributing factor."[21]

5. Each of the medical experts relied on by the plaintiff expressed views that were similar to what is set out in Dr Sandhu's report.
6. The defendant relied upon two medico-legal reports from Dr Anthony Menz, consultant orthopaedic surgeon, the first dated 5 March 2024 and the second dated 23 September 2025. In both reports, Dr Menz agreed that the plaintiff was suffering from degeneration of his lower back in the form of spondylosis of his lumbar spine. However, he expressed the view that this degeneration was not associated with any work duties. This opinion was expressed despite the fact that Dr Menz noted that the plaintiff had worked as a bookbinder for over twenty-five years and had experienced lower back pain dating back to 2008. He also specifically noted, that in the four years prior to retiring in 2022, the plaintiff had had two periods in which he had to have time off work, because of his lower back pain. Nowhere in either report did Dr Menz set out the basis of his opinion that the plaintiff's extremely heavy work activities were not causative of the aggravation of the pre-existing degenerative change which the plaintiff was experiencing in his back. Dr Menz incorrectly stated that the plaintiff had sustained "no specific traumatic injury",[22] despite the fact that he was in possession of a report from Dr Nieuwoudt which specifically recounted the plaintiff presenting to Dr Nieuwoudt on 10 June 2020 with lower back pain "after he lifted a heavy object on 03/06/2020".
7. In those circumstances, I prefer the opinions expressed by the medical professionals relied upon by the plaintiff and accept their conclusion that the plaintiff is suffering from work-related aggravation of pre-existing degeneration in his lumbar spine.

1. During his cross examination, there were certain matters in relation to which it became apparent the plaintiff's evidence set out in his affidavit material, was not completely accurate.
2. An example of this was in relation to the frequency of the plaintiff's visits to his general practitioner concerning his back pain. Under cross-examination, it was put to the plaintiff that in 2020 and 2021, he had not been attending his general practitioner on a monthly basis, a proposition with which the plaintiff agreed. The plaintiff freely made concessions in relation to this and other similar matters, during cross-examination. These concessions did not impact on my assessment of his credibility in general.
3. Having considered these matters carefully, I formed the view that nothing of substance turned on them. In his closing addresses, no argument was put by Senior Counsel for the defendant that the plaintiff's credit had been impeached during the case.
4. Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was an honest and co-operative witness who appeared to be doing his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and without embellishment. In addition, he made concessions when necessary.
5. Furthermore, I find that the plaintiff's account of the events which led to his back injury, the nature of it and the consequences of that injury to him, has remained consistent throughout the period in which he has seen his treating medical practitioners, consulted with the medico-legal assessors, and provided evidence to this Court.
6. After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the content of the medical reports, I consider that he was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court or to exaggerate his symptoms in any way.

1. Having observed the plaintiff during his evidence, I also formed the view that he is an extremely stoic person, especially in relation to:

(a) his attempts to continue to exercise and remain active, for example in relation to playing golf;

(b) his attempts to continue engaging in leisure activities, for example caravaning and attending at the Maryborough Highland Society with his wife; and

(c) his efforts to continue trying to live his life as normally as possible, modifying his activities to accommodate his injury, such as performing domestic duties more slowly or in a staggered way, and seeking help from friends and paid contractors when needed to perform maintenance or renovation work around his house.

1. The details of the occurrence of the accident are not in dispute.
2. Having considered all of the evidence from the plaintiff's treating doctors and medico-legal experts, I am satisfied that as a result of the accident, the plaintiff presently suffers from the consequences of an injury to his spine, in the form of aggravation of pre-existing degeneration of his lumbar spine.

Is the compensable injury "permanent" for the purposes of the Act?

1. Having considered the relevant reports and, in particular, the reports from Dr Sandhu[23] and Mr Doig,[24] I find that the plaintiff is likely to suffer from the consequences of the injury he sustained in the accident, for the foreseeable future. Given this, I find that the injury is "permanent" for the purposes of the Act.

Are the consequences of the accident "serious" for the purposes of the Act?

1. The weight of the evidence satisfies me that the consequences to the plaintiff of the spinal injury which he suffered in the accident are as follows:

(a) constant, sharp, lower back pain which varies in intensity;

(b) a burning pain that goes into his backside and down the back of both legs to around his knees;

(c) the need to retire from work some years earlier than he had hoped to;

(d) the need to take Panadol tablets daily and Meloxicam as needed. In addition to taking this medication, he does stretches and exercises for his lower back every day;

(e) interrupted sleep as a result of his back pain. In particular, if he rolls onto his side at night, the back pain tends to wake him up;

(f) difficulty with sitting for more than a short time; difficulty with bending, twisting and lifting things; difficulty walking up or down hills, walking up or down stairs, walking over uneven ground; squatting, bending or "getting down low". He tries to avoid doing these activities. If he does do these activities for a period of time, he gets increased back pain;

(g) difficulty sitting to go to the toilet;

(h) weight gain due to an inability to exercise in the way that he used to;

(i) difficulty putting on and taking off his socks and shoes and difficulty washing his feet, drying himself with a towel and bending over;

(j) difficulty with gardening. He tries to avoid the weeding because it involves bending down. He still does the mowing once a week but takes more time due to his back pain. He tries to break up his domestic chores and not do them all at once in the way that he used to;

(k) difficulty playing with his grandchildren, such as kicking the football with them. This makes him "feel terrible";

(l) the need to avoid doing maintenance type activities. He generally avoids doing this type of work. When he does try to do it, he "... really battle[s] through the pain and ... pay[s] for it with pain afterwards";

(m) difficulty playing golf, as it aggravates his back pain, especially swinging the clubs. He now needs to take pain medication prior to playing golf. After playing golf, he "pays for it" with increased back pain. After playing golf, he has to "take it easy for a few hours on a recliner chair" because of his back pain and not do too much;

(n) a reduced ability to go caravanning with his wife. While he and his wife still go caravanning, it is less frequent. He finds setting up and packing up the caravan hard because of his back pain. Prior to the accident, the plaintiff and his wife were planning on caravaning around Australia. Now he is too scared to do this because of his back pain. Sitting and driving for long periods of time and setting up/packing up the caravan is difficult;

(o) reduced concentration, due to his experience of pain;

(p) the need to avoid doing housework and a reduced ability to assist his wife with chores such as shopping;

(q) a reduced ability to go fishing because of the long periods of time standing and sitting;

(r) a reduced ability to enjoy watching his AFL team play. Now he avoids doing this as sitting, walking and standing for a long time aggravates his back pain;

(s) difficulty driving for long periods, because it involves sitting. On longer drives he now he tries to get out and take a break when he can. Prior to the accident, he did nearly all of the driving. Now he shares the driving with his wife due to his back pain. He also tries to drive just locally to assist with managing his back pain; and

(t) a vastly reduced social life. In particular, he has lost the pleasure of being a member of the Maryborough Highland Society, which was a "big part" of his life. They had a lot of friends who they would meet up with at that event. Now they only go every few months, probably for lunch for an hour or so.

1. I find that each and every one of these issues is a consequence suffered by the plaintiff as a result of the injury caused to his spine as a result of the accident.
2. In Haden Engineering Pty Ltd v McKinnon,[25] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff's experience of those consequences, as well as the disabling effect of the consequences on the plaintiff's physical capabilities (including capacity for work) and enjoyment of life.[26] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff's account of the consequences experienced will depend upon an assessment of the plaintiff's credibility.[27]
3. In Kelso,[28] the Court observed that:

"... chronic pain was a prominent feature of the appellant's case. The endurance of permanent daily pain, requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a 'very considerable' consequence."

4. Furthermore, it has been held that a loss of a field of work that a plaintiff previously enjoyed is a relevant pain and suffering consequence to be taken into account in these types of applications.[29]
5. I have already made observations about the plaintiff's demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness. I have also found that the plaintiff has been stoic in his approach to managing his injury, particularly in the form of continued attempts to keep active, to engage in pleasurable activities with his wife and to modify his approach to performing domestic duties and gardening chores, to accommodate the effects of his back injury.
6. In this case, I find that as a result of the accident, the plaintiff has endured chronic back pain for many years, and continues to do so. The symptoms of the pain caused by the plaintiff's back injury were a prominent feature of his case before this Court. He deposed to those matters in his affidavits and was cross-examined about them. The evidence satisfies me, and I find, that in addition to his experience of constant back pain, the plaintiff suffers from interrupted sleep and the need to take medication and engage in other forms of exercise, in order to treat or otherwise manage his pain. Furthermore, as set out above, many aspects of the plaintiff's daily life have been permanently and irreversibly affected as a result of the injury he sustained in the accident.
7. Having regard to these findings, I am satisfied to the requisite standard that the consequences which the plaintiff suffers as a result of the injury caused to his lower back in the accident, are fairly described as being "very considerable".

1. In those circumstances, I am satisfied to the requisite standard, that as a consequence of the plaintiff's work with the employer, the plaintiff suffered a "serious injury", as defined in the Act, in the form of an organic injury to his spine. The application is granted.
2. I will hear the parties in relation to the question of costs.

[1] See Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592 at 628 ("Kelso"); see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]

[3] See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]

[4] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436 at 442 ("Petkovski")

[7] [2005] VSCA 33; (2005) 14 VR 622

[8] [2006] VSCA 172; (2006) 14 VR 602

[9] Pages 2-38 and 49-59 of the Amended Plaintiff's Court Book were marked as Exhibit ("Ex") P1; pages 5-37 of the Defendant's Court Book were marked as Ex D1

[25] [2010] VSCA 69; (2010) 31 VR 1 ("Haden Engineering")

[26] Haden Engineering at paragraph [9]

[27] Haden Engineering at paragraph [12]

[29] Haden Engineering at paragraph [5]