1 The appellant, Mr Vladimir Sabo, was employed by the respondent, George Weston Foods, as a line-leader in its food processing factory. On 5 February 2004, he was pushing a steel cage full of salami weighing 500 to 600 kilograms along a suspended rail when it became stuck. Mr Sabo injured his back when he used force to free the cage and move it to the refrigerator room.

2 Mr Sabo reported the injury to his supervisor and went to the first aid room, where the attendant gave him some cream to ease the pain and sent him back to work. Mr Sabo continued to work for about two weeks, but his back pain worsened and on 16 February 2004 he was unable to get out of bed. His wife took him to see a general practitioner, Dr Robert Padanyi, who prescribed analgesic medication and provided him with certificates of incapacity for about two months. Over that period Mr Sabo received physiotherapy and took medication to relieve his pain.

3 On 1 April 2004 he returned to work for two hours per day, five days per week. By 20 September 2004 he was able to work as a forklift driver at the factory for eight hours per day, five days per week. He drives the forklift on a level concrete surface, so that it does not jolt his back, and cannot bend, twist or lift heavy weights. He continues to take analgesics and anti-inflammatory drugs to relieve his symptoms.

4 Mr Sabo commenced proceedings in the County Court seeking leave to commence proceedings under s 134AB(16)(b) of the Accident Compensation Act 1985 ('the Act') to recover common law damages for pain and suffering. He now appeals against the refusal to grant that leave.

5 Mr Sabo and his wife swore affidavits in support of his application and Mr Sabo gave evidence in the proceedings below. Dr Padanyi, Mr Sabo's general practitioner, provided clinical notes on which Mr Sabo relied and also gave evidence. A number of other medical reports were tendered. The evidence can be summarised as follows.

6 Ms Glisic is Mr Sabo's wife. In her affidavit sworn on 7 August 2008 she deposed that her husband often complained of back pain and restriction of movement.

7 In his affidavit sworn on 17 March 2008[1] Mr Sabo recounted the history of the injury and its effects on him. He deposed that before the accident his general health was good, he was always in full employment and led a 'very active' life. He said that he used to perform all the maintenance work around the house, including building a carport and veranda with the help of a friend. He said that he enjoyed bicycle riding, walking the dog and dancing at the Slovakian social club.

8 He described the accident as life changing, noting that his activities around the house are now restricted, he has trouble sleeping, experiences pain when turning in bed and his sex life has deteriorated. He is unable to attend to his garden in the way that he did before his injury.

9 He deposed that before the accident he did heavier work and worked considerable overtime, which he is no longer given. Since sustaining the injury, he suffers considerable discomfort in his lower back by the Thursday or Friday of the working week. He has to rest over the weekend, so that he can carry out his duties at work.

10 He undertook physiotherapy for more than 12 months after he was injured. After returning to full time work, he continued to attend one session of hydrotherapy and one session of physiotherapy per week. He stopped attending those sessions after he was informed that they would no longer be covered by insurance.

11 After he stopped physiotherapy Mr Sabo began treatment with Mr Brett Clements, an osteopath, on Dr Padanyi's recommendation. He received treatment from Mr Clements once a week for about six months, until the insurer ceased financing his treatment on the grounds that he was deriving no benefit. He continued to pay for treatment from Mr Clements 'once a fortnight for some months'.

12 Mr Sabo deposed that at home he undertakes a regime of exercises prescribed by his physiotherapist. He said that he used a massage machine and takes Panadeine Forte as required for pain and also Nurofen.

13 In his evidence-in-chief Mr Sabo said that the pain was 'like something is stabbing me'. He said he had symptoms in the front of his calf, further down his leg and towards the ankle and the right buttock. He has to do stretching exercises twice a day and use the massage machine to alleviate his symptoms and it takes him much longer to do his work. He said that work worsened his symptoms and that he had 'pain in my heels, in particular when I'm climbing up and down from the forklift, and I have pain in my back when I'm sitting'. He said that he had to keep working because he 'had to live'.

14 In cross-examination Mr Sabo said that he did not have difficulties driving a car and had driven to Bright, a three and a half hour drive away, to go fishing, on a number of occasions since he was injured. He also said that he was able to walk for 45 minutes before having to sit down and have a rest. In re-examination he said that he had to have breaks to stretch when driving for long periods and that he used a vibrating massage chair in his car.

15 He was asked why he did not have an injection into his spine as suggested by Dr Geoff Markov, a rheumatologist to whom Dr Padanyi referred him. He said that Dr Padanyi suggested that the injection would not help. In response to a question as to how frequently he needed to use medication he said that at his doctor's suggestion he took it when he really needed it. This occurred:

... three times a week, sometimes four times, sometimes two times, just for how I'm feeling. If pain is more I take more tablets.

16 He conceded that he did not dance at the social club before the accident, but went to see his son dancing. He also volunteered that he had not walked the dog before his accident as it had died. He said that he had begun using an indoor bike.

17 He was asked whether he did any housework and said that he could do so slowly, going down on his knees. He also went down on his knees to do gardening.

18 Dr Padanyi was Mr Sabo's general practitioner. He provided a letter to Mr Sabo's solicitor dated 30 March 2007 enclosing Mr Sabo's clinical record. In the letter Dr Padanyi said that Mr Sabo 'had recovered from his severe low back strain' and 'was managing [his alternative duties as a forklift driver] very well without any recurrence of his back condition'. When asked to provide an updated report on 31 July 2008, Dr Padanyi noted that 'there is no new medical information I can add' and enclosed a copy of the earlier letter.

19 The clinical records provided by Dr Padanyi contained a record of Mr Sabo's consultations at the medical centre at which Dr Padanyi works. The record does not appear to be entirely comprehensive.

20 According to the records, Mr Sabo first visited Dr Padanyi on 23 February 2004 (i.e. a week after the date he said that his wife had taken him to see the doctor). He was prescribed Mobic and Tramal and given a certificate of incapacity for the period 23 February 2004 to 3 March 2004.

21 Mr Sabo returned to Dr Padanyi on 3 March 2004 and informed him that his injury had improved, as he was now able to get into an upright posture and the tenderness in his right lower back had lessened. Dr Padanyi extended the certificate to 17 March 2004.

22 On 17 March 2004 Mr Padanyi noted that there was very gradual improvement in Mr Sabo's back pain and that he was experiencing pain in the right buttock. Dr Padanyi made a note of 'a little R. sciatica', extended the certificate until 31 March 2004 and wrote a prescription for Mobic and Tramal. He also recommended that Mr Sabo attend an osteopath three times a week and ordered x-rays and a CT scan of Mr Sabo's lumbar spine.

23 Mr Sabo returned to Dr Padanyi on 31 March 2004. The clinical records note that Dr Padanyi agreed that Mr Sabo should return to work and gave a certificate approving his return to alternative duties from 31 March 2004 to 28 April 2004.

24 The subsequent entries in the record, beginning from 27 April 2004 until 4 October 2006, note that Mr Sabo was 'reasonably coping' and 'managing' with his alternative duties and gradual reduction of his lower back pain. On 1 March 2005 the record noted that he has background chronic right sided lower back pain, which is 'manageable'. Thereafter he had regular attendances at the clinic to obtain Workcover certificates for alternative duties and prescriptions for Mobic and pain medication. On 4 October 2006 the record notes that Mr Sabo, having been earlier retrenched,[2] requested a return to work certificate that would allow him to return to normal duties. His request was driven by financial pressures and his desire to keep his job. Dr Padanyi noted that there is a 'strong likelihood of recurrence [of] back strain if [he is] made to return to too heavy and repetitive work'.

25 The entry dated 1 November 2006 notes that Mr Sabo returned to normal duties, which 'remain essentially/mainly forklift driving duties and no heavy or repeatedly needed lifting duties'. The entry dated 28 February 2007 notes that Mr Sabo has had no problems 'since [return to work] as forklift driver on normal duties classification late last year'. On 11 June 2008 Dr Padanyi prescribed Mobic and Panadeine Forte to be taken three times a day. The prescription had three repeats.

26 In examination-in-chief Dr Padanyi described the injury Mr Sabo suffered as 'severe' and 'acute' and said:

He had severe low back pain on one side and with pain radiating down one leg and it was very difficult for him to even stand. Walking was painful. For quite a while he was with a bent posture for quite a few months and this was alleviated by rest, painkilling medications, anti-inflammatory medications and a course of fairly long physiotherapy.

27 In response to a question seeking comment on the CT scan showing that there was an L 4/5 large right posteolateral disc protrusion, Dr Padanyi said that '[i]t was causing pain down one leg because of nerve pressure'. He considered that it would be 'very dangerous' for Mr Sabo to return to the work he was doing before the incident because it would 'exacerbate his back injury and/or make it more severe than it initially was' and may result in him having to be operated on by a neurosurgeon.

28 Counsel for Mr Sabo asked Dr Padanyi what he meant by saying that Mr Sabo had recovered from his severe low back strain and he said that he had meant that Mr Sabo had recovered sufficiently to work as a forklift driver. After describing the tendency of those who have suffered a significant back injury to subsequently strain their back with 'less serious trauma', he said that '[Mr Sabo] is the sort of person with that injury that their back is never going to be the same' and that 'he could pop the disc out even more and make the injury worse'. He agreed with the statement in Mr Rodney Simm's report that no improvement was anticipated and that Mr Sabo would be unable to undertake activities involving bending and twisting of the back.

29 In cross-examination it was put to Dr Padanyi, on the basis of his clinical notes, that Mr Sabo had not visited him for treatment of his back problems since March 2008. He agreed. However, as we have said, prescriptions tendered on behalf of Mr Sabo showed that Dr Padanyi had prescribed analgesic and anti-inflammatory medication for him on 11 June 2008.

30 Dr Padanyi was also asked what his advice was in relation to Dr Markov's recommendation that Mr Sabo receive an epidural steroid injection. Dr Padanyi said that he only discussed this with Mr Sabo 'in passing' and that if he didn't want to have the injection it was his right to decline it. In response to a question from his Honour, he said that his advice:

... was that if he's coping within the limits of his mild back pain and exacerbations towards the end of the working week ... then perhaps he can continue just doing his alternative duties job but to revisit Dr Markov if he wants to take up the offer of the steroid or quarterly injection.

31 On hearing Dr Padanyi's description of Mr Sabo's injury as 'mild back pain with exacerbations towards the end of the week', counsel asked him whether that was his understanding of Mr Sabo's current situation. Dr Padanyi responded that it was.

32 In re-examination Dr Padanyi said that it was very common for back pain to get worse towards the end of the working week.

33 Mr Clements is a registered osteopath who began treating Mr Sabo in February 2005. Mr Clements provided two reports, dated 10 May 2004 and 15 March 2006. In his earlier report Mr Clements said that:

At this stage I believe it is unlikely Vladimir will ever return to his pre-injury duties but in my opinion he should be able to perform his lighter duties indefinitely. Continued treatment and the competition of the gym and pilates programs will further ensure that Vladimir is able to continue in his current employment.

34 Mr Clements describes Mr Sabo's condition as at February 2005 in both reports. He noted that:

The main aggravating factor was prolonged standing. Any longer than 2.5-3 hours caused a marked increase in the lumbar symptoms and often right buttock pain. The pain quickly diminished when Vladimir rested in the sitting or lying position. Lifting was also a concern with Vladimir limited to approximately 10kg. Repetitive twisting to either side was also difficult. Prolonged sitting with poor posture also aggravated the symptoms in certain chairs. At the time of presentation Vladimir was performing his usual hours but on lighter duties.

Since the onset of treatment Vladimir has made steady improvement. Motion of the lumbar spine has improved, as has Vladimir's functional ability. His capacity for prolonged standing has increased, as has his ability to lift. Vladimir also reports less aggravation of pain while performing his work duties. He is still experiencing some pain most days and by the end of the working week the pain has increased. This aggravation usually subsides over the weekend and Vladimir is able to commence work on Monday relatively pain free.

Given that Vladimir is improving I do not believe it is appropriate to cease treatment at this stage of his rehabilitation. Vladimir's functional ability is increasing and stopping treatment at this stage will most likely lead to a deterioration of symptoms. Vladimir states that even at this stage he experiences deterioration in his symptoms if he receives no treatment for a two week period.

36 In the later report Mr Clements said that by 'May 2006',[3] Vladimir's injuries had minimized to the point that self management was sufficient'. However, contrary to his earlier report he said that:

Despite his best efforts Vladmir's lumber and right leg symptoms have persisted. The disc injury he sustained to L4/5 continues to be the cause of these symptoms which was a direct result of the workplace accident that occurred in February of 2004.

Vladimir currently experiences pain on a daily basis. He still manages to perform his usual daily activities and work duties but with some discomfort. He is able to manage his pain with regular stretching but this is becoming more difficult.

Given the nature of the injury and history to date it is unlikely that Vladimir will ever be symptom free. Continuing in his current employment will continue to cause pain and will gradually cause a deterioration of his symptoms. Further manual therapy treatment may help to reduce his current symptoms but for long-term relief I would recommend that Vladimir complete a strengthening program that incorporates pilates, general conditioning and weight loss.

37 Dr Padanyi referred Mr Sabo to Dr Geoff Markov, a rheumatologist, for an opinion. Dr Markov first saw Mr Sabo on 28 March 2007. In his report of 29 March 2007 he said that Mr Sabo's spine flexion was limited to about 60 per cent of normal but movement in all directions was associated with pain in the lumbar spine. He noted tenderness on palpating the entire lumbar spine as well as both sacro-iliac joints and all of the posterior pelvic structures. Neurological examination of the lower limbs was normal with no evidence of nerve root compression.

38 Dr Markov referred to an x-ray and CT scan ordered by Dr Padanyi in March 2004, which showed a large focal disc protrusion at L4/5 to the right side. He said that:

Mr Sabo has chronic lower back pain and it is quite possible that some of it relates to the disc prolapse at the L4/5 interspace as seen on the CT scan. Although there were no neurological signs he does have symptoms involving the right lower limb and on this basis I recommended an epidural lumbar steroid injection but he was apprehensive about this and wanted to have some time to think about it which is understandable ... If he decides to go ahead with the epidural injection I have asked him to come back for review a few weeks later.

39 In his report of 19 June 2008 Dr Markov noted Mr Sabo's symptoms of pain over the entire lumbar spine radiating towards the right buttock and left foot as well as intermittent pins and needles in the right leg. He referred to Mr Sabo's history of pain after walking and prolonged standing or lifting, but noted that Mr Sabo said he was still capable of driving a car and a forklift and could walk and use a stationary bicycle for exercise. He concluded that :

It seems that Mr Sabo has made a significant improvement with regards to his symptoms between March 2007 and June 2008 and has been capable of returning to work as a forklift driver although he is clearly not symptom free. I am disappointed that he never underwent the epidural steroid injection which I recommended and I still feel it would be worthwhile doing although Mr Sabo was most reluctant to consider it. Most patients with sciatica do improve with time and that is clearly what has happened here although his improvement is incomplete. It is likely that with an epidural steroid injection further gains might still be achieved ...

With regards to Mr Sabo's capacity for pre-injury employment I think he is capable of working full time as a forklift driver but is not capable of undertaking any employment requiring lifting of heavy weights (say more than 10kg) or where heavy, physical strenuous effort is required.

40 Mr Simm is an orthopaedic surgeon, who examined Mr Sabo at the request of his solicitors. In his report of 27 June 2008 Mr Simm said that Mr Sabo had not experienced any sustained relief from pain since the work injury. He said that Mr Sabo had pain every day, although it was not constant and its severity varied. While resting he might be unaware of it, but the pain returned when he became active. He said:

He has pain in the lumbar region of the lower back with radiation to the right buttock and down the right leg to the anterolateral aspect of the lower limb. He has some non-specific pins and needles in the right leg. There is no focal numbness or weakness. The pain is aggravated by movements of the back and by forward bending and lifting. He has increased levels of pain after walking for 45 minutes. He has pain in bed at night and there are nights when it is difficult for him to sleep. He is no longer able to sleep prone. The pain is aggravated by coughing and sneezing.

He copes with forklift driving which does not seem to specifically aggravate the pain.

41 Mr Simm noted that Mr Sabo had restricted forward flexion but that neurological examination revealed normal reflexes, no muscle wasting or focal muscle weakness. His opinion was that:

This man suffered a right-sided L4/5 lumbar disc protrusion as a result of straining his back at work in February of 2004. His symptoms are consistent with L4/5 disc involvement. He has referred pain into the anterolateral aspect of his lower leg which is in the L5 distribution. He has no signs of L5 radiculopathy.

His persistent symptoms are consistent with unresolved damage of the prolapsed L4/5 lumbar intervertebral disc. I expect him to experience chronic low back pain and referred pain into the right lower limb as described in this report. No improvement is anticipated in the foreseeable future. The pain will confine him to light activities. He will be unable to undertake activities that involve repetitive and prolonged forward bending and twisting movements of the trunk ...

The injury has permanently incapacitated your client for pre-injury employment or any alternative physically demanding employment. He held a forklift driver's licence from Yugoslavia and he is currently suitably employed as a forklift driver. Patients with discogenic pain arising from lumbar intervertebral disc pathology frequently have difficultly with prolonged sitting and in particular with prolonged driving. I asked him specifically how he was coping at work and he stated that the surface upon which he was driving the forklift was smooth and there was minimal jolting and jarring of his back. He may have difficulty operating a forklift under different circumstances where he was driving over a rough surface.

42 Dr James Rowe is a specialist occupational physician. Dr Rowe examined Mr Sabo at the request of the workers' compensation insurers on 15 March 2004 and examined the work site on 16 March 2004. He produced a report for each of those visits, with the reports dated the same as the dates of examination.

43 In his 15 March 2004 report, Dr Rowe noted that Mr Sabo had a very severe loss of range of movement in the back, wasting of the right thigh and that his knee jerk was diminished on the right. He considered that it would be unwise for Mr Sabo to go back to his pre-injury duties for some time.

44 Dr Rowe's report of 16 March 2004 report was directed towards the suitability of Mr Sabo's return to work. After stating that it was his opinion that Mr Sabo's injuries were caused by the work that he had been doing, Dr Rowe indicated that he was capable of undertaking jobs such as packing or processing in which he could sit or stand at will. He made no reference to Mr Sabo's pain.

45 Dr Andrew Miller also examined Mr Sabo on 12 July 2004 and 21 April 2005 at the request of the insurer. He provided four reports, dated 13 July 2004, 16 July 2004, 4 February 2005 and 22 April 2005.

My clinical examination today revealed a moderate disability of his back due to limitation of movements and local discomfort. The underlying pathology is an L4/5 intervertebral disc prolapse with spinal nerve root involvement.

I expect further slow but sustained improvement to occur with stabilisation of the injury within six months. Treatment should increase analgesic/anti inflammatory medication and a self managed exercise program at home or gymnasium. I suggest the physiotherapy be gradually ceased over the next four to six weeks.

Surgery is a possible treatment option and if he continues to experience radicular symptoms I suggest he be referred for a neurosurgical appraisal.

Mr Sabo is indefinitely incapacitated for his pre injury duties and is only capable of working with the following restrictions:

• Avoid lifting in excess of 5 kg;
• Avoid forceful pushing or pulling activities;
• Avoid movements of his back beyond one third of the normal range;
• Avoid prolonged static positions such as sitting or standing in the same position for more than 45 minutes at a time.

47 On 16 July 2004 Dr Miller conducted an inspection of the work site for the purpose of formulating a suitable work program for Mr Sabo. He assessed the position of 'Process Worker/Forklift driver' as being suitable, provided that the restrictions described in his 13 July 2004 report were followed.

48 In his report dated 4 February 2005, Dr Miller emphasised that he had not seen Mr Sabo for approximately six months and could not comment on his current condition. In relation to Mr Sabo's ability to progress to a 'self management program', he said that:

Unless Mr Sabo has had any unexpected deterioration of his injury or further injury he has had sufficient time to progress to a self managed program.

In my previous report I recommended he progress to a self managed exercise program at home or gymnasium.

A daily exercise program at home would be appropriate and/or a gymnasium based exercise program up to three times a week approved by the doctor would be appropriate.

49 Perhaps in response to Dr Miller's unwillingness to provide an opinion because of the length of time that had elapsed since he had seen Mr Sabo, his insurer requested that he examine Mr Sabo again. In his report, based on an examination of Mr Sabo on 22 April 2005, Dr Miller said that:

Re examination of Mr Sabo has revealed that his back injury has improved since I previously examined him on 12 July 2004, however he continues to be partially disabled by the injury.

My clinical examination today revealed a moderate disability of his back due to limitation of movements and local discomfort. The underlying pathology is an L4/5 intervertebral disc prolapse with spinal nerve root involvement on the right.

His progress has been slower than expected, however further slow but sustained improvement is expected. Treatment should include analgesic/anti-inflammatory medication as required and a self managed exercise program at home, gymnasium or pool.

50 Dr Miller was asked by his insurer to examine Mr Sabo again and produced another report dated 31 January 2008. In his report, based on an examination of Mr Sabo on 21 April 2005, Dr Miller said that:

My clinical reassessment of Mr Sabo today has revealed that his back condition has remained relatively unchanged since I last examined him on 21 April 2005.

He has a moderate disability of his back due to local discomfort and limitation of movements. The underlying pathology is a chronic L4/5 intervertebral disc lesion with involvement of the right spinal nerve root at that level.

Considering the circumstances of the injury on 05 February 2004 his employment with George Weston Foods is still materially contributing to the injury and his ongoing partial disability. Considering it has been approximately four years since the injury was sustained I do not believe any further improvement is likely.

Further treatment should include analgesic/anti-inflammatory medication as required and a self managed exercise program. Surgical intervention appears unlikely at this stage.

In consideration of the physical requirements of his pre-injury duties I believe that he is indefinitely incapacitated for the full range of these duties due to the risk of further injury to his back.

51 The learned County Court judge discussed Mr Sabo's evidence and set out the medical evidence at some length.

52 His Honour summarised the effect of the injury on Mr Sabo as follows:

... the plaintiff, who, as I have said, is now fifty-six years of age, has recovered as well as could be expected from his lumbar spine injury on 5th February 2004. He has been working full-time as a forklift driver since September 2004 and has had no time off as a result of his injury since then. He said in evidence that his motivation to keep working was because he was now the sole breadwinner in the family. He struck me as a man who was honest and reliable in relation to the evidence he gave about his restrictions and treatment and it seems that, by and large, he has minimal restrictions in his social and domestic activities as a result of his ongoing back pain. It is obvious that he is content to rely on medication to help him cope with his work and has not sought to take up Dr Markov's suggestion of injections to help relieve pain. I believe this is a reflection on the extent of that pain. I accept that, through his own self exercise program, massage, and resort to analgesics and anti-inflammatory medication, he is able to keep working and lead a fairly normal social and domestic life. I accept that he suffered a diminution of his status at work as a result of having to take alternative employment as a forklift driver.[4]

53 His Honour said that he was satisfied that the plaintiff's current condition was permanent but that he did not consider that the plaintiff had a progressive condition or that there was anything to suggest in the medical evidence that he had a 'real risk' of major surgery. His Honour said that he was not persuaded that the pain and suffering consequences for the plaintiff could properly be described as 'very considerable'. Accordingly he refused the application.

54 At the hearing the Court gave Mr Sabo leave to amend his grounds of appeal, with the consent of George Weston Foods. Amended grounds 1, 2, 4 and 5 were as follows: [5]

1. The evidence realised [sic] facts and matters which justified a probable finding that the Appellant had sustained a serious injury and was entitled to leave to issue common law damages for pain and suffering.
2. The finding that the Appellant/Plaintiff did not have a serious pain and suffering injury under s 134AB(38)(b)(i) of the Accident Compensation Act 1985, his refusal to give leave to issue common law proceedings according to s 134AB(16)(b) of the Accident Compensation Act 1985, and his consequential order dismissing the proceeding:

(a) was against the evidence and the weight of the evidence;

(b) was against the provisions of s 134AB of the Accident Compensation Act;

(c) failed adequately or at all to consider, take into account the following facts:

(i) the Appellant/Plaintiff was, apparently found to be an honest, genuine and reliable witness, or alternatively, that no adverse finding with respect to the Appellant/Plaintiff's credibility was made;

(ii) the Appellant/Plaintiff had symptoms all the time although the nature and extent of same varied;

(iii) the whole compass of his personal and social life had been reduced;

(iv) he was on medication to control his symptoms;

(v) he was managing to work at duties which were less physically demanding than before and could manage to do so because of a regime of physiotherapy, exercises and also by using a massage machine;

(vi) without the regime referred to in (v) above, he probably would be unable to work.

(vii) he can manage his alternative work when driving a forklift because it only travels over smooth concrete surfaces;

(viii) he has ongoing symptoms at work all the time, getting worse by Thursday-Friday each week;

(ix) he is at risk of experiencing significantly worsened symptoms sponsored by further development of the disco prolapse should he physically over exert himself;

(x) but for the fact that his wife was also injured, cannot work and has no income support and because he and his wife need an income he is working and but for these facts he would probably not be persisting with work.

1. In place of the judgement from which the appeal is brought the Appellant/Plaintiff seeks.

(a) an analysis of the evidence upon which a finding that the Appellant/Plaintiff sustained a serious injury can be made;

(b) the setting aside of the Orders made by the learned trial Judge;

(c) a finding that the Appellant/Plaintiff is entitled to leave to issue common law proceedings with respect to the injuries sustained and that such leave be given with respect to pain and suffering damages only pursuant to s 134AB(38)(b)(i) of the Accident Compensation Act;

(d) an Order by this Honourable Court of Appeal giving effect to the findings sought in sub-paragraph (c) above;

(e) consequential Orders for costs with respect to both the costs of the initial proceeding and the costs of this Appeal.

1. Alternatively and in place of the judgement from which this appeal is brought, and instead of what is sought in paragraph 3(d) above, an Order that the proceeding be remitted to the County Court of Victoria at Melbourne for rehearing before an alternative member of the judiciary in the County Court.

55 Counsel for Mr Sabo relied on his Honour's finding that Mr Sabo was an honest and reliable witness. Counsel submitted that the pain and suffering consequences of Mr Sabo's impairment were 'very considerable' within s 134AB(38). His back pain and restriction of movement affected his work capacity and his daily activities and would continue to do so for the rest of his life. Counsel relied on Mr Sabo's evidence that:

• prior to the injury, he was a line leader, but is now on modified duties and cannot perform the work that he was doing before he hurt his back;
• he can only drive a forklift on smooth concrete and has pain and difficulty getting up and down from the forklift;
• he suffers daily pain in his back and legs and his current work makes his pain worse;
• he has to do exercises twice daily to stretch his back and leg and use a massage machine morning and night to control his symptoms;
• he has continued to work only because he needs to support himself and his wife;
• his enjoyment of life is affected by restrictions on his daily activities and social life;
• his sleep is affected by pain and he has difficulty turning in bed;
• he has to take medication to control his symptoms; and
• he is only able to do housework and gardening by getting down on his knees.

56 Counsel also relied on Dr Padanyi's evidence that Mr Sabo's lower back pain would confine him to light duties, that he was permanently incapacitated for any return to more demanding employment and had to take medication to relieve his pain. He submitted that Mr Simm's evidence (set out at paragraph 40 above), also supported Mr Sabo's serious injury application.

57 Counsel for George Weston Foods conceded that Mr Sabo's back injury had significantly affected him. However he submitted that the pain and suffering could not be said to be 'very considerable' when compared with the range of possible impairments. Consequently it did not come within the definition of 'serious injury'.

58 Counsel for George Weston Foods said that Mr Sabo had conceded in cross-examination that he had not danced at the Slovakian club or walked his dog before he was injured. He submitted that, contrary to Mr Sabo's evidence that he was not given overtime because of his injury, Mr Joseph Borg, the human resources manager at George Weston Foods, had deposed that there were no restrictions on Mr Sabo doing overtime, if it was available and he chose to do it.

59 Counsel referred to Dr Padanyi's description Mr Sabo's pain as 'mild', and Mr Simm's evidence that there was no sign of nerve root impingement.

60 Counsel submitted that in Stijepic v One Force Group Aust Pty Ltd[6] a 28 year old man with significant back pain caused by disc protrusion at L3/L4 and L4/L5, with significant nerve root impingement, was held not to have suffered a serious injury. In that case, Ashley JA and Beach AJA said that in considering whether a worker had suffered an impairment which was 'very considerable', the capacity that the worker retained, as well as the capacity which was lost, had to be taken into account.

61 Counsel submitted that Mr Sabo had retained significant capacity to work and to enjoy social activity. He had not taken a day of sick leave in the last five years. He was able to drive to Bright to go on fishing trips, to enjoy social activities and to take his son to soccer. In these circumstances his injury should not be held to be serious.

62 Although grounds of appeal 1 and 2 allege that his Honour made various errors in his factual findings, it is no longer necessary for an appellant to rely on allegations of specific error. In hearing an appeal under s 134AD of the Accident Compensation Act 1985, this Court must 'decide for itself' whether the injury is a serious injury, having regard to 'the evidence and other material before the judge who heard the application' and any other evidence which the Court may receive.[7]

63 Mr Sabo has the onus of showing that his back injury is a serious injury within the definition in sub-ss 134AB(37)(a) and (38)(b) and (c) of the Act. Sub-section 134AB(37)(a) defines a serious injury as (among other things) 'a permanent serious impairment or loss of a body function'. Under sub-s 38(b) the term 'serious' is to be:

... satisfied by reference to the consequences to the worker of any impairment or loss of a body function ... with respect to pain and suffering ... when judged by comparison with other cases in the range of possible impairments or losses of a body function ...

64 Under sub-section 38(c) an impairment or loss of bodily function shall not be held to be serious unless the consequence (in this case the pain and suffering consequence) when judged by comparison with other cases is:

... fairly described as being more than significant or marked, and as being at least very considerable ...

65 The statutory test reflects the decision of the Full Court in Humphries v Poljak.[8] In that case, Crockett and Southwell JJ said that:

To be 'serious' the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as 'very considerable' and certainly more than 'significant' or 'marked'? Beyond such guidance it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of a range of applications including those the adjudication of which is now our responsibility.[9]

66 As this quotation indicates, the Court must consider the impairment of body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments. As Ashley JA and Beach AJA said in Stijepic:

The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation - because, it may be supposed, the consequences are glaringly apparent one way or the other.[10]

67 As has frequently been observed, the question whether an injury satisfies the definition of a serious injury is largely a matter of impression and value judgment.[11]

68 Mr Sabo is now 57 years old. He has spent his life as a labourer and had progressed to being a 'line leader' in charge of a small group of other workers at George Weston Foods' food processing plant. His Honour found that he was an honest witness.

69 It was not contested that Mr Sabo's impairment is 'likely to last for the foreseeable future' and will not 'mend or repair'.[12] The medical experts agreed that his work capacity is affected by his inability to twist, bend and lift heavy weights. Given Mr Sabo's restricted capacity to speak English and his Honour's finding that he was an honest witness, we would attach little significance to the fact that he deposed that he was no longer given overtime, while the human resources manager, Mr Borg, said that this was a matter of choice.

70 There is no doubt that his working and home life has been affected by his back pain and restricted movement. He cannot work as a line manager and his enjoyment of life is affected by his persistent pain, which worsens towards the end of the working week. His ability to undertake home maintenance and to engage in social activities is now restricted. He is likely to have to take analgesics and anti-inflammatory drugs from time to time for the rest of his life. As counsel for George Weston Foods conceded, the pain and suffering consequences of his back injury are significant.

71 The fact that Mr Sabo is able to work full-time driving a forklift, does not preclude him from showing that the pain and suffering consequences of his impairment are serious. Such an approach would be a disincentive to workers attempting to return to work on lighter duties and would be inconsistent with s 3(b) of the Act, which provides that one of the Act's objects is to provide 'for the effective occupational rehabilitation of injured workers and their early return to work'. In Stijepic Ashley JA and Beach AJA referred to the comments of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd.[13] He said:

... Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.[14]

72 On the other hand, Dr Padanyi described Mr Sabo's pain as the result of his L4/5 disc prolapse as 'mild' and Mr Simm noted that Mr Sabo's level of pain is not constant, that its severity varies and that he can cope with his work as a forklift driver. Dr Markov considered that the pain might be alleviated by an epidural injection. Dr Miller said that Mr Sabo had a 'moderate disability due to limitation of movements and local discomfort'. None of the doctors described Mr Sabo's level of pain as excruciating or unrelenting. Although his pain is persistent it is relieved by medication which he takes as required and he has not found it necessary to have an epidural steroid injection. He does not have severe neurological symptoms.

73 In considering whether Mr Sabo impairment is 'at least very considerable' weight must be given to the adverb 'very'. As Callaway JA said in TAC v Dennis:[15]

Many [impairments][16] are considerable, in the sense that they are important or substantial, without being very considerable.[17]

74 Section 134AB was intended to restrict the availability of common law damages to workers whose impairments were of 'very considerable' magnitude. Although Mr Sabo's back injury has had an important effect on his life, he retains the capacity to go on fishing trips, to walk, and to undertake full time work. Having regard to the evidence discussed above, we consider that Mr Sabo has not satisfied the onus of showing that the pain and suffering consequences of his injury have resulted in an impairment which is 'fairly described as being more than significant or marked, and as being at the very least very considerable'.[18]

[1] His affidavit sworn 16 August 2007 is substantially the same but does not contain information relating to his physiotherapy treatments, self help exercises and current self medication.

[2] It appears that Mr Sabo was ultimately not retrenched.

[3] This appears to be a typographical error given the date of the report and presumably should read March 2006.

[4] Sabo v George Weston Foods [2008] VCC 1187 ('Reasons'), [30].

[6] [2009] VSCA 181 ('Stijepic').

[7] Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124; Doolan v Rayners Sawmills Pty Ltd [2008] VSCA 219, [9]; Stijepic [2009] VSCA 181, [4].

[8] [1992] VicRp 58; [1992] 2 VR 129. The case concnered the interpretation of the word 'serious' in s 93(17) of the Transport Accident Compensation Act 1986.

[10] [2009] VSCA 181, [42].

[11] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592, 628 (Dodds-Streeton JA); ibid [42] (Ashley JA).

[12] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; (2005) 14 VR 622, 633, 639 (Phillips JA).

[13] [2006] VSCA 292, [24].

[14] [2009] VSCA 181, [47].

[15] [1998] 1 VR 702.

[16] The claim related to a severe long term behavioural disturbance.

[17] [1998] 1 VR 702, 703.