Nicholls v Victorian WorkCover Authority [2026] VCC 131

1. In this proceeding, the plaintiff seeks the leave of the Court to commence a proceeding for pain and suffering damages against Euro on the basis that he has suffered a "serious injury" to his lumbar spine.
2. The plaintiff accepts that because of the pre-existing L5-S1 disc injury, any injury alleged to have been suffered with Euro must be assessed as an aggravation injury in accordance with well-known principles such as those set out in Petkovski v Galletti.[20]
3. The plaintiff claims that before the injury with Euro he had an occasional backache, but since then he has been plagued with constant, unremitting back pain. He accepts that he had some improvement in his symptoms as a result of the L5-S1 lumbar disc replacement and fusion but contends that he is still in pain and restricted for a range of domestic and social activities, specifically activities that involve prolonged sitting, standing, or heavy or repetitive bending or lifting.
4. Before the hearing, causation about the low back appeared to be an issue to resolve, but helpfully for this proceeding, the defendant accepted that the plaintiff suffered an aggravation injury to his lumbar spine while working with Euro and that such aggravation injury contributed to the need for the L5-S1 disc replacement and fusion surgery.
5. Instead, the defendant first contended that the plaintiff had not established the extent of any aggravation injury to enable a conclusion that he has suffered a "serious injury". Second, the defendant contended that regardless of the extent of any aggravation injury, overall, the plaintiff simply does not have a "serious injury" because he had not established "very considerable" pain and suffering consequences.
6. Related to the defendant's primary contentions, it raised as an issue the credit of the plaintiff. It did so in the context of a dispute about the reporting of a back injury to Euro and the reliability of some of the plaintiff's evidence about his current levels of pain. The defendant highlighted discrepancies in the plaintiff's evidence when compared to the evidence from his treating surgeon and treating general practitioner.
7. The legal principles are not in dispute. The proceeding was conducted in the "usual way". The parties tendered documents from court books, mostly being medical reports and clinical records, together with two affidavits sworn by the plaintiff. The plaintiff was subjected to an appropriate cross-examination to test him on what he had said to the doctors and in his affidavit. I have considered all the tendered evidence, the parties' submissions and the transcript of the plaintiff's oral evidence, but I shall only refer to that material to the extent necessary for context, or to explain the result.

1. The plaintiff swore two affidavits, the first on 19 December 2024,[21] and the second on 29 January 2026.[22]
2. In his first affidavit, he set out his medical and work history, circumstances of injury and treatment. He then went on to describe having back surgery performed by Mr Choi on 7 April 2022. He said his symptoms were improved after surgery but that he continued to experience symptoms.
3. The plaintiff then set out his symptoms and consequences as follows:

"I continue to experience persistent lower back pain and restriction as a result of my work at Euro and the incident. There is a dull aching pain with sharper flare-ups of pain. The pain often feels like a toothache. I have my better days, but I am never pain free. There is a feeling of irritation in the lower spine. There is stiffness in the muscles supporting my back. I tend to fidget with discomfort. My symptoms are aggravated by activity.

My current lower back pain and restriction stems from the incident. I had previously made a good recovery from the earlier operation, and was functioning well. The work at Euro stirred up my back pain, and produced new symptoms. My back was never the same after that. My current lower back pain is worse than my earlier problems.

I experience a variety of physical restrictions and limitations due to my serious injury. I experience symptoms on certain movements including bending, twisting, and leaning. I was previously very muscular and strong. I try to maintain my physique, but heavy lifting, pushing and pulling is harder. I tend to pull up sore afterwards. I have problems with running now. I was previously able to run more frequently. The impact gives me problems now. Prolonged walking and standing can also cause flare-ups of pain.

I have a surgical scar, but it does not bother me too much.

I experience sleep disturbance due to lower back pain. I have greater difficulty getting to sleep. I experience broken sleep. I often feel tired due to a lack of quality sleep.

My hobbies and pastimes have been impacted by my serious injury. I still manage to travel, and have been on various trips in recent times, but the pain interferes. I push myself to live a normal life, and I do not want to be a handbrake for my partner and to spoil her fun. My ability to box, go dirt bike riding, and participate in judo are diminished. I still try to live a normal life and to do these things, but the pain and stiffness interferes and makes it less enjoyable. Walking the dogs is also a bit harder these days. Gym was a huge part of my life and it is important for my rehab, but I find it harder and less enjoyable. I continue to be physically active and to train in the gym, but I am more limited in what I can do. I was previously very fit and strong, but my condition has diminished due to my lower back pain. I can lift, but not as much or as often. I modify my exercises. I use benches for support and machine assisted weights more frequently. My ability to recover has been impacted.

I can perform most household and domestic chores, but I do get pain and discomfort with tasks that irritate my lower back such as pulling on a fitted sheet, raking, mopping and vacuuming. Most aspects of self-care are fine."[23]

1. In his second affidavit, the plaintiff provided some further information, including about the motor vehicle accident in November 2024. He said:

"The consequences of my lower back injury have largely remained the same since swearing the first affidavit. > > Prior to swearing the first affidavit, I was involved in a motor vehicle accident on or about 3 November 2024. I was stationary in my vehicle, stopped at a pedestrian crossing before a roundabout at Beach Road in Mordialloc. I was waiting at the pedestrian crossing when another vehicle hit the rear right hand side of my vehicle heavily. I was initially in shock, but did not require immediate medical attention. The police attended, but no ambulance was required. I did not think that I required medical attention because I was not directly struck in the accident, but progressively developed worsening symptoms in my right arm and intense pain down my neck I did not have numbness, but had tingling in my right ring finger and pinky finger along with the loss of strength in my right arm and difficulty maintaining control when I was lifting objects. > > On or about 23 December 2024 I attended an Urgent Care Clinic in Dandenong where I saw Dr Javed, and was prescribed pain relief including Mobic and Norgesic. I was told to follow up with my general practitioner. It did not occur to me when I attended the Urgent Care Clinic that the symptoms I was experiencing related to the motor vehicle accident I had been, and I do not believe I told Dr Javed about the motor vehicle accident. > > I subsequently followed up with doctors at the Marina Medical Centre due to the worsening symptoms in my right arm, but do not recall mentioning to them the motor vehicle accident on 3 November 2024 as I did not know and could not explain why I was having these symptoms. > > On or about 6 January 2025 underwent an x-ray of my cervical spine after being referred by Dr Ramzy Mikhail. > > On or about 9 January 2025 underwent an MRI of my cervical spine after being referred by Dr Michael Croce at Marina Medical Centre. > > On or about 29 January 2025 I was referred by Dr Farag to Mr John Choi, orthopaedic surgeon. > > On or about 5 February 2025 I attended Mr John Choi, orthopaedic surgeon due to the worsening pain in my right shoulder with pins and needles and tingling into my right hand. I also had also been experiencing severe weakness in my triceps and biceps. I also do not believe I mentioned the motor vehicle accident to Mr Choi, as in my mind I could not connect the symptoms in my right arm and neck to the motor vehicle accident, but now having had it explained to me in post-operative consultations by Mr Choi, I better understand how my neck injury occurred. > > On or about 18 March 2025 I underwent surgery involving a C6-C7 total disc replacement at The Avenue Private Hospital in Windsor by Mr John Choi due to a disc rupture at the C6/7 level. > > Following the surgery to my neck by Mr Choi on 18 March 2025, the symptoms of pins and needles and tingling in my right hand and weakness in my triceps and biceps improved significantly through rehabilitation, physiotherapy and a strengthening program. I was soon able to return to the limited jujitsu and modified weight training that I was undertaking prior to the motor vehicle accident on 3 November 2024, but continued to be limited by my lower back pain and function that I had struggled with following my work injury in around April 2019. > > I continue to attend the Marina Medical Centre, and see Dr Adel Farag. I continue to see Dr Farag on an 'as needs' basis, and this is every few months or so. > > In addition, I have also seen a doctor in Keysborough on around 3 - 4 occasions, but my primary doctor is Dr Farag. > > I refer to paragraph 55 - 56 of the first affidavit. I continue now to have ongoing lower back pain and restriction which does not go away. The pain that I now experience is something I have on a daily basis and I would describe as a dull aching type of pain which varies in intensity depending on the level of activity. Prior to the work-related incident in April 2019, I was quite mobile and not experiencing the constant level of ongoing aching back pain that I now experience. I would experience pain from time to time and would take medication as necessary to deal with that, but the pain I have experienced since around April 2019 is much worse. I now estimate that on average the level of pain I experience on a daily basis in my lower back is around 3 - 4/10 and at times this worsens to around 8-9/10. This generally occurs around 2 - 3 times a month, but will vary depending on the level of activity. It generally occurs with prolonged periods of standing or walking. > > I refer to paragraph 57 of the first affidavit. I continue to experience limitations with actions such as bending, twisting, and sustained forward leaning, but try to cope the best I can with what I have available to me physically. > > I refer to paragraph 57 of the first affidavit. I tend to push through pain from my lower back in order to continue with my interests. I wish to correct the first affidavit as I have never participated in judo, but since around 2023 took up jujitsu as an interest. I was training twice a week up until the motor vehicle accident on 3 November 2024, and then took around six months off before resuming jujitsu training due to the symptoms in my right arm and neck. Since returning to jujitsu, I have undertaken training around once per week at best, with breaks as required. Since I took up jujitsu in 2023, I have been limited by my lower back pain and physical restrictions. I would have undertaken training in judo which is more physically demanding than jujitsu, but was prevented from doing so due to the pain and restriction from my lower back. > > In terms of my gym activity, prior to April 2019, I was unrestricted in what I was able to undertake with my upper body, but after April 2019 I had to be careful with restricting my exercise and loading of my legs and lower back. Prior to the work related injury in April 2019 I attended gym around five times per week, and relied on this to maintain condition and strength to support my lower back due to the previous injuries I had suffered. After the work-related injury in April 2019, I had around a year off from gym due to the pain and restriction in the lower back. I progressively returned to gym work after surgery as part of a careful rehabilitation program, but was never able to return to the level of gym work I was undertaking prior to April 2019. This is something that I miss and whilst I now attend gym around two days per week on average if I am lucky, it does not compare to what I was able to enjoy prior to the work-related accident in April 2019. Following the motor vehicle accident on 3 November 2023 I was restricted to a further degree in my gym work due to the symptoms in my right arm and neck, but after the surgery to my neck by Mr Choi in March 2025, I was able to return to what I had been capable of doing immediately before the motor vehicle accident. > > In the first affidavit, I refer to being restricted in my ability to go dirt bike riding. I still try to do this, and estimate that I have gone dirt bike riding around three times in the last 12 months. I have to be very careful about how I ride, how long I ride and where I ride now which does not compare to what I was able to enjoy prior to the work-related injury in April 2019. > > Before April 2019 had been heavily engaged in gym and weightlifting, boxing and running as my primary interests. I was quite proficient in boxing, and had previously been engaged in 2 amateur fights in around 2012. I used to undertake boxing training and sparring up to 5 days per week before April 2019 depending on training schedules, and following the work-related injury in April 2019 I stopped for around 12 months and for the back surgeries before progressively trying to return to boxing around 2 - 3 days per week despite my pain and restriction in my lower back. I would push through pain to do so. Following the motor vehicle accident on 3 November 2024, I stopped sparring and training until around October 2025 and have been training around twice per week since then. Whilst I have managed to return to limited boxing this is not at the level or intensity that I was able to undertake prior to the work-related injury in April 2019.

I refer to paragraph 59 of the first affidavit. My sleep has significantly deteriorated due to the pain I experience in my lower back. I experience sleeplessness on a nightly basis, and estimate that on average, I wake somewhere between 3 - 4 times per night due to the pain and discomfort in my lower back. I also experience some discomfort from my neck and right arm, but this is not as bad as the pain and discomfort from my lower back. As a result of my wakefulness, I wake up tired and unrefreshed in the morning and at times have difficulty concentrating my tasks during the day.

I refer to paragraph 61 of the first affidavit. I continued to experience pain and discomfort in my lower back with household chores and domestic chores such as changing beds, mopping, vacuuming and gardening particularly if it requires being postures.

In order to maintain my fitness and protect my back from further injury and deterioration following the work-related injury in April 2019, I would jog around 2 times per week, but have not been able to continue this since the motor vehicle accident.

In terms of employment, after ceasing work with Euro Precast Pty Ltd I worked for Titan Concrete Precast Pty Ltd for around 3 months or so as a supervisor and working with precast concrete formwork. I worked for Southern Precast as a formworker, for several months and also worked through MC Labour Services Pty Ltd for Lux Pre-Cast as a concreter. I was just not able to cope with the physical demands of concreting and formwork duties 'on the tools' and as a result then moved into car sales where I worked for Dutton Garage Wholesale Australia Pty Ltd was as a car wholesaler, buying and selling cars. This was nonphysical work which I was able to cope with but continued to experience pain when doing so if it involved longer periods of standing or sitting. I then attempted a return to my career as a formworker/concreter and worked for Melbourne Architectural Precast Pty Ltd as a formworker for around 12 months before they became insolvent and I lost my employment. I attempted as a 2IC for Ironside Construction Pty Ltd for around 2 months, and then commenced work with Advanced Precast Pty Ltd as a foreman. I continue to work in this capacity now, which is 'off the tools' and as of around October 2025 I was made State Production Manager which I can cope with physically as it does not require the repetitive bending, twisting, lifting, forward leaning and heavy manual work of concreting and formwork."[24]

1. Broadly, in the second affidavit the plaintiff provided relevant evidence about his neck operation, as well as some further information about his alleged ongoing back symptoms and how he was coping with his current employment.

1. The plaintiff was then cross-examined about the contents of his affidavits, what he had said to doctors and what was contained in clinical records.
2. First, in cross-examination the plaintiff was asked whether he still had symptoms in his lower back immediately before April 2019. About that he said no more so than the average person in construction work.[25] He was taken to a history given to a medico-legal examiner, Dr David Merenstein, in 2023, namely that he had a good result from the microdiscectomy surgery in 2016, but over the next several years the pain began recurring. The plaintiff agreed that was the case leading up to April 2019.[26]
3. The issue of low back symptoms before April 2019 was said by the defendant to be relevant for a comparison with current symptoms and impairment consequences, for a claimed aggravation injury.
4. In any event, continuing that theme, the plaintiff was cross-examined about the limited time off work he had before the surgery with Mr Choi and how he had effectively been able to maintain full-time employment, including employment with the defendant, until he resigned in 2020.
5. It was suggested that he resigned at least in part because of a dispute about Euro making co-workers redundant. About that the plaintiff said he resigned because he could no longer work, although he was angry for how he was treated and how co-workers had been treated.[27] He accepted that in his affidavits he did not say he left Euro because he could not cope with back pain.
6. The plaintiff was then cross-examined about the opinions provided by Mr Choi, including that he had a very good result from the fusion and disc replacement surgery that Mr Choi performed on 7 April 2022. He accepted that he might have told Mr Choi that after the surgery he had never felt that good for the last twenty years. The plaintiff said "I may have, I was over the moon to feel repaired".[28] The plaintiff agreed that Mr Choi provided him with a medical certificate on 12 May 2022 in effect clearing him to return to his pre-injury duties, save for a restriction to not lift anything more than 25 kilograms.[29]
7. Next, the plaintiff was cross-examined about what Mr Choi recorded in a report dated 27 May 2022, namely that after surgery the plaintiff had been able to resume normal activities at home and recreationally. The plaintiff accepted that was what he had said and was correct at the time.[30]
8. The plaintiff was then cross-examined about the fact that he has continued essentially to work full-time in the construction industry, achieving responsible positions as foreman and now as state production manager. He accepted that he worked full-time and did additional hours.[31]
9. It was suggested to the plaintiff that in his current job he did additional hours without any problem, but he said that was incorrect. He said there was difficulty performing his current work as state production manager, in trying to stay seated for long periods.[32]
10. The plaintiff was cross-examined about Dr Farag's evidence in a report dated 10 September 2025[33] to the effect the plaintiff had a good prognosis with no major residual disabilities and could perform activities of daily living with no restrictions. The plaintiff said he did not entirely agree with Dr Farag's opinion.[34] He said he might have told the doctor that because he needed to get back to work.[35]
11. Next, the plaintiff was cross-examined about the recent attendance on Mr Choi for the neck injury. It was suggested he was quite happy for Mr Choi to operate on his neck because he had such a good result from the back surgery and he agreed with that.[36] The plaintiff agreed that when he went back with the neck problem, Mr Choi had not suggested any other treatment for his lower back.
12. In cross-examination the plaintiff accepted that he did not take any medication for the lower back and had not done so for many years.[37] Later the plaintiff qualified his answers by saying his reference to not taking medication referred to prescription medication. He said he occasionally took over-the-counter medication.[38]
13. The plaintiff accepted that he had not had any other treatment such as physiotherapy for some time.
14. The plaintiff was then cross-examined about taking up the martial art of Brazilian Jiu Jitsu during 2023. He described what that involved. He disputed that it involved twisting of the lower back. He said he had chosen Brazilian Jiu Jitsu because it was the least likely to aggravate his back.[39]
15. The plaintiff was cross-examined about his interest in boxing. He had boxed in competitions many years ago and accepted he continued to occasionally engage in sparring in boxing and enjoyed that.[40]
16. The plaintiff then said that after the neck surgery he had slowed down on the Brazilian Jiu Jitsu because he was still in recovery.
17. On a similar topic to Brazilian Jiu Jitsu and boxing, the plaintiff was cross-examined about going to the gym. He explained that due to a combination of his neck and lower back he had cut down on the gym and described an attendance now as "pretty rare".[41]
18. Next, the plaintiff was challenged about his level of pain. It was suggested to him he did not have constant lower back pain to which he said that "couldn't be further from the truth".[42] Again when challenged about whether he had pain every day he said that "could not be further from the truth" and that it was completely false to say that he did not have pain all the time.[43]
19. The plaintiff was then challenged about whether he had any restrictions for housework, to which he said was false. He was challenged about dirt-bike riding and how much of that he was doing after the microdiscectomy in 2016 and leading up to April 2019. He said he had been going about once a month and since April 2019 it had been a lot less.

1. Re-examination commenced with questions about how the plaintiff coped with walking his dogs. He explained that the dogs tended to pull on the lead which aggravated his back, so he didn't walk them very often at all.[44]
2. Next, he was re-examined about dirt bike riding between 2016 and 2019. He said that before 2019 he could ride for 8 hours "being fairly fit and that" and then afterwards "maybe an hour, having to stop, have a break", but otherwise he did not make any modifications to his motorbike riding after 2019.[45]
3. The plaintiff was then re-examined about his current work. He said he had restriction in that he had gone from being able to work an unlimited amount of hours to now being in constant pain and finding it hard to stand, twist or turn. He said he gets an increase in pain if he worked longer hours.[46]
4. The plaintiff then answered questions about boxing. He described his boxing training routine in the context of his back injury having "some impact" on that routine.[47] He said before 2019 he could train comfortably five, or six days a week, but now he is lucky to go twice, with days off in between. He then qualified his evidence, to say that because of the neck injury he is restricted and had not been boxing this year.[48]
5. The plaintiff was asked about the work he did after leaving Euro. He said he did "much less hours" and he had restrictions from the "immense pain I was in" and confirmed the pain was in his lower back.[49]

1. Turning next to the medical evidence, it is relatively limited and in the case of the evidence from treating practitioners, is scant, reflecting the lack of treatment.

1. The medical evidence from treating practitioners is confined to the opinions from Mr Choi and Dr Farag, which I have mostly set out during the discussion about the plaintiff's evidence. In short, those doctors each opined that the plaintiff had an excellent result from the surgery performed by Mr Choi on 7 April 2022.
2. This is encapsulated in Mr Choi's letter to Dr Farag dated 5 February 2025 where Mr Choi said: "I had the pleasure of seeing Mr Jesse Nicholls. He is a 40 year old builder and concreter that I operated on four years ago for his chronic back pain and spondylosis of L5/S1 with discopathy. He has done extremely well. He was super happy with the results and has been back functional and enjoying the gym".[50]
3. Mr Choi did provide a more recent medical report dated 17 October 2025 that was directed to the plaintiff's neck injury. [51] Mr Choi noted the plaintiff had presented on 5 February 2025 with pain in the right shoulder and pins and needles into the right hand. He described investigations and subsequent surgery by way of C6-7 artificial disc replacement, performed on 18 March 2025. He noted the plaintiff had done extremely well after the neck surgery with complete resolution of neurological symptoms and neck pain. He said the plaintiff was back to normal function including for his physical job as a builder and his recreational activity.[52] There is no mention of any complaint of back symptoms by Mr Choi in his recent report.

1. Dealing next with the medico-legal evidence in the order presented in the court books.

1. Professor Paul D'Urso is a neurosurgeon who examined the plaintiff and provided a report dated 9 October 2025.
2. In his report, Professor D'Urso obtained a history of the plaintiff's back symptoms, the surgery of Dr Choi and the plaintiff's return to activity after the surgery. He recorded the plaintiff describing chronic pain rated as 3.5/10 on a daily basis,[53] as well as intermittent right leg pain and paraesthesia of the right foot. He noted the plaintiff could sit comfortably, walk for thirty minutes before being limited by pain and that he woke at night because of pain.
3. About work, Professor D'Urso recorded that the plaintiff worked full time. About social activities, he recorded that the plaintiff participated in recreational boxing, martial arts and attended a gym. It was also noted that the plaintiff could perform shopping, cooking, cleaning, washing and gardening. Professor D'Urso recorded the plaintiff telling him that before the injury in 2019, he was able to train at the gym without restriction, bend, twist and lift without restriction, walk for long distances and run, but now no longer performed those activities as he once did because of his persisting symptoms.[54]
4. Professor D'Urso also recorded that the plaintiff no longer took medication.
5. After conducting a physical examination and reviewing investigations, Professor D'Urso opined that the plaintiff suffered an injury to the lumbosacral disc in the course of his employment.[55] He said the incident in April 2019 that precipitated the onset of back pain and sciatic symptoms was likely to have contributed to the development of a lumbosacral disc prolapse. He recommended that the plaintiff participate in a self-management program of core strength exercise and hydrotherapy under the supervision of a physiotherapist. He said the prescription of analgesic and anti-inflammatory medication would be appropriate.
6. Professor D'Urso placed restrictions on the plaintiff's physical capacity. He said that the plaintiff should avoid bending, twisting and lifting in a repetitive fashion. He said the plaintiff should avoid lifting from below the knee and above the shoulder and avoid lifting weight in excess of 20 kilograms. He recommended ergonomic assistance and said the plaintiff had permanent restrictions.
7. Professor D'Urso opined that the plaintiff was suffering from a mild to moderate degree of pain, suffering, distress and anxiety as a consequence of the work injury. Pausing, I must disregard any distress and anxiety for a consideration of whether the claimed physical injury is serious.
8. Professor D'Urso said that the plaintiff may now be prone to degenerative progression as a consequence of the disc replacement procedure. He said the longevity of the disc replacement devices was not currently known and there was a risk of the disc replacement device failing with time. Overall he said the plaintiff's condition had a mild effect on his social, domestic and recreational spheres.[56]

1. Dr David Merenstein is a general surgeon who provided three reports at the request of the solicitors for the defendant, but which were tendered by the plaintiff.
2. Dr Merenstein reported for the first time on 21 November 2023.[57] In that report he obtained a history of the plaintiff's situation before commencing with Euro. He obtained a history of the previous microdiscectomy involving the L5-S1 disc. He recorded the plaintiff saying that:

"... he obtained a very good result for the following 2-3 years but eventually the pain began recurring. This nevertheless appeared to be fairly tolerable and allowed him to continue with physical occupations without too much distress."[58]

3. Dr Merenstein then obtained a history of increasing symptoms, leading to the referral to Dr Choi and the disc replacement surgery on 7 April 2022. About that, Dr Merenstein opined that:

"Mr Nicholls obtained a very good result. Much of his severe pain and discomfort with respect to his lower lumbar spine had resolved but unfortunately full recovery had not occurred. Nevertheless, despite the pain which was now mild, Mr Nicholls returned back to employment. ... ."[59]

4. He then went on to describe the plaintiff "still at times suffers from lower back pain but as mentioned above this is of a much lower intensity than that pre-operatively".[60]
5. Next, on 26 August 2025, after a review consultation with the plaintiff, Dr Merenstein reported again to the defendant. On that occasion, Dr Merenstein recorded that the plaintiff had ceased medications and treatment. He recorded that the plaintiff's pain had improved considerably but had not abated and that "on exertion the pain returns but to a lesser degree of severity than prior to the operation.[61]
6. Dr Merenstein then answered a series of questions to do with causation, that are not presently relevant. But he accepted that the work with Euro aggravated the plaintiff's back condition, leading to the eventual need for surgery. He said that the plaintiff's pain and disability to some extent was still persisting and was unlikely to resolve.[62]
7. Dr Merenstein recorded that the plaintiff still attended the gym four times a week, but since "his bouts of surgery" had modified the amount of weight that he lifted. He said overall that despite two bouts of surgery the plaintiff's condition while improved, had not resolved, but that there were no current neurological symptoms.[63]
8. Dr Merenstein next reported on 12 October 2025 having been asked to comment on social media and video surveillance. He said that material did not cause him to change his previously expressed opinions.[64] I note that the defendant did not tender into evidence any social media extracts or video surveillance.

1. First, where the injury to the low back is relied on as an aggravation injury, the plaintiff has the evidentiary onus to establish the extent of the additional impairment and impairment consequences from the aggravation and to establish that such additional impairment meets the "very considerable" test.
2. Second, in this proceeding, not only is there scant evidence from treaters, but there is also no evidence from anyone who treated the plaintiff in relation to the motor-cycle accident and the micro-discectomy in December 2016.
3. Third, on the limited evidence, it appears that the plaintiff got back to heavy work and to most, if not all, of his social and recreational activities, but with some low back pain or ache from time to time. As an example of heavy work, there is no real dispute that he was working long hours and doing heavy work for Euro.
4. Fourth, in April 2019 the plaintiff developed an increase in low back pain. He left work with Euro in early 2020 but that does not appear on the evidence to have been directly the result of worsening low back pain. He continued in full and unrestricted construction work, even if subsequent jobs were lighter than Euro.
5. Fifth, by late 2021 he had symptoms at a level for a man who I think can be called stoic, to cause orthopaedic referral to Mr Choi and soon after, major spinal surgery in April 2022.
6. Pausing here, it is tempting to jump to the conclusion that the need for L4/5 lumbar disc replacement and fusion is likely to be a "serious injury", but that is not the legal test. I accept that surgery is a relevant consideration, but that of itself is not enough for conclusion of "serious injury".
7. Sixth, the plaintiff had on any objective assessment a very good result from the lumbar surgery performed by Mr Choi in April 2022. He was able to return to work in his pre-injury field of construction and has achieved promotion and advancement. There is no evidence of the need to refuse employment or even have the odd day off for low back pain.
8. Seventh, the plaintiff now has no treatment for any low back problem. He has effectively ceased taking medication, perhaps apart from some occasional over-the counter pain medication, although the evidence about that was vague and hardly compelling.
9. Eighth, the plaintiff continues to engage in a range of activity that is at least capable of being described as moderately physical, such as sparring, Brazilian Jiu Jitsu, walking his dogs and dirt bike riding. Perhaps some of those interests are at a reduced physical level than what they were in April 2019. But some are physical activities taken up since then. Overall, I agree with Professor D'Urso's assessment that there is a mild impact on the plaintiff's social and recreational activities.
10. Ninth, related to the level of impairment consequences is the issue raised by the defendant about of the reliability or the credit of the plaintiff and how that should be factored into an assessment of subjective complaints of pain and impairment.
11. I formed the view that the plaintiff was broadly a forthright and reliable witness. But on several occasions, I also formed a view that he was putting his best foot forward as it were, by describing symptoms or restrictions that did not sit comfortably with the objective evidence.
12. For example, his evidence about his current levels of back pain does not sit comfortably with the objective evidence and the complete lack of treatment. His evidence in re-examination about restrictions for work, including in his current employment, are totally without objective support. Notably, the plaintiff did not provide any evidence about his earnings which might have demonstrated a marked reduction in hours of work or of earnings after leaving Euro. There is no other lay evidence, from his partner or current employer, that would corroborate a reduction in hours worked, or even a reduction in social activities.
13. As another example of his best foot forward, perhaps he now rides his dirt bike a bit less, although how often and how long he was riding it after the surgery in 2016 is an issue where I consider his evidence was unreliable. I do not accept his evidence in re-examination that after 2016 and before 2019 he was riding a dirt bike regularly for eight hours at a time, for several reasons, including the fact of the long hours he was working with Euro. There is no evidence of where he went riding for 8 hours at a time, or who he went with, if anyone.
14. These are a couple of examples where I consider the plaintiff's evidence was unreliable or clouded with the passage of time or a desire to put his best foot forward. It is also relevant that he has also taken up some other recreational pursuits since April 2019, such as taking up a martial art and deciding to raise two dogs of a breed that are notoriously difficult to handle.
15. In short, I accept the defendant's submission that some of the plaintiff's evidence about his pain, impairment and impairment consequences was unreliable.
16. Tenth, objectively, it is notable that not only does the plaintiff not rely on pecuniary loss consequences, he also does not rely on any loss of job satisfaction. There is no reliable evidence that he cannot work in construction, or has had to reduce his hours of work, or cannot work overtime.
17. Eleventh, further muddying the waters of his claimed loss of recreational pursuits, is the fact that he is still less than 12 months recovered from major neck surgery and as he conceded the neck injury had reduced some activity such as gym.

1. Therefore, overall, the plaintiff may have some activity-based pain in his low back. But his pain does not appear to be at a significant level, even for a stoic person, that requires him to modify his current job, seek treatment or significantly alter his day-to-day activity.
2. In fact, about treatment, other than the suggestion that there may be a deterioration in the artificial implant at some point, it is notable that there is no objective evidence that the plaintiff has a need for treatment for his low back.
3. In addition, as the defendant contended, it is also open to muse that the plaintiff's current low back symptoms are not dissimilar to what they were when he commenced at Euro. However, nothing turns on that, because whether the plaintiff's claim for "serious injury" is analysed based on an aggravation injury or based on his total current impairment consequences, the result is the same.
4. Keeping in mind that I must consider the possible range of impairments and impairment consequences and not just those that come before the Courts, the plaintiff may be in a small category of those who have done well after major spinal surgery. The fact of major spinal surgery does not automatically translate to "very considerable" pain and suffering consequences if, as in this proceeding, there is a good result from surgery.
5. The short point is that based on the overall analysis of the evidence, including a consideration of the evidence of what is lost but also what is retained, despite major back surgery, on the evidence the plaintiff has simply failed to prove "very considerable" pain and suffering impairment consequences form the aggravation back injury relied on by him.
6. Accordingly, the application is refused.
7. I shall hear from parties as to consequential orders.

[1] Transcript ("T") 50, Line ("L") 30-31; T 51, L 1

[2] Amended Defendant Court Book ("DCB") 32

[3] Extracted from the plaintiff's chronology as there is no objective evidence of the relevant dates

[6] Amended Plaintiff Court Book ("PCB") 28

[20] [1994] VicRp 32; [1994] 1 VR 436

[23] PCB 25-26 at paragraphs [55]-[61]

[24] PCB 82-88 at paragraphs [5]-[26]