Scouller v Victorian WorkCover Authority [2025] VCC 1436

1. The impairment of body function relied upon is dysfunction of the spine.
2. In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of "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), the physical impairment must be permanent.
3. The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
4. In relation to the physical impairment, by s325(2)(c) of the Act, it is the "consequences" of the physical impairment which produce the "pain and suffering" or "loss of earning capacity" (as the case may be) which must be "serious" - that is, if the plaintiff is to succeed in his claim, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of that 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 judgment.[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] and

(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 physical impairment.
2. By s325(2)(b) of the Act, 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 "consequences" of the physical impairment or the mental or behavioural disturbance or disorder (as the case may be) arising from the injury the subject of this application, and the range of possible physical impairments or mental or behavioural disturbances or disorders.
3. In reaching my conclusion 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[4] and Grech v Orica Australia Pty Ltd & Anor.[5]
4. The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.

1. The plaintiff was born in August 1979. He is presently forty-six years of age.[7] He completed school to Year 10. After leaving school, he worked as a stable hand until around June 2001.[8]
2. In June 2001, he started working as a shop assistant and delivery driver with the employer on a full-time basis. In or around July or August 2006, he was promoted to the position of manager and continued working with the employer until around October 2014.[9]
3. From the beginning of his employment with the employer, his duties were very physically demanding. The employer would regularly receive deliveries of stock which came on wrapped pallets. Each pallet contained containers, boxes, drums and bags of horse supplements. The products were often bulky, heavy items weighing between 16 and 40 kilograms. He was regularly required to load and unload stock from the delivery trucks.[10]
4. There were usually only two staff rostered on at a time. This meant that if one of the staff members was sick, on a break or generally unavailable, the plaintiff would have to unload these deliveries by himself. Between 2001 and 2006, the front door of the store which the employer operated out of, was not conducive to receiving deliveries, and it was often difficult to get trolleys in and out. There was no space or option for mechanical assistance like a forklift. As a result, he would regularly be required to move deliveries into the store manually.[11]
5. In around 2006, the employer moved to a larger warehouse-style premises where there was access to a forklift. However, this forklift could only be used within the warehouse premises. As a result, when a delivery would arrive, the plaintiff would still have to manually move heavy products inside the warehouse. This system was in use until the plaintiff finished working with the employer in October 2014.[12]

The circumstances in which the spinal injury was sustained

1. After some time, the frequent heavy lifting started to take a toll on the plaintiff's back. In around 2002, he started receiving osteopathy treatment to manage his back pain. He continued to receive this type of treatment on and off for years. He would also speak to his general practitioner about his back pain on occasion. By 2011, his back condition had deteriorated to a point where his general practitioner ("GP") referred him for some scans on his back and to an orthopaedic surgeon.[13]
2. The plaintiff has mostly tried to manage his back pain with conservative treatment. Unfortunately, this has not been successful.[14]
3. In 2019, the plaintiff started to experience "foot drop" in his right foot. He understands this relates to pressure in his lower back on his spinal cord. He spoke with a neurosurgeon at The Alfred hospital, but was told that if he had surgery on his lower back, he would only have a 50 per cent chance of improvement in his symptoms. When he compared this with the risk of something going wrong during surgery, he decided it was not worth the risk and has not proceeded with that surgery. Instead, he tried to manage the pain with home exercises assigned by his physiotherapist and conservative treatments like remedial massage, physiotherapy and acupuncture.[15]
4. His right foot drop has now mostly resolved, except when he experiences flare-ups of bad pain.[16]

Evidence concerning the consequences of the Plaintiff's injury

1. As set out above, the plaintiff relied upon two affidavits[17], the first sworn on 18 June 2024 and the third sworn on 12 June 2025. In summary, the plaintiff's evidence as to the pain and suffering consequences which he presently experiences, is as follows.

(a) he experiences pain in his lower back. The pain radiates through his right side, into his hip, groin, leg, foot and heel. When the pain flares up on a bad day, it causes numbness and tingling into his right foot, which in turn worsens his anxiety. The pain is present every day, and increases with activity;[18]

(b) the pain which the plaintiff presently experiences can become throbbing in nature, exacerbated by pushing, pulling, lifting, twisting, coughing, sneezing, straining and bending, with aching in his legs and testicles;[19]

(c) when the pain radiates down his right leg, at times his right leg can become weak. The symptoms down his right leg can cause him to fall over and has resulted in him crashing his car twice in minor accidents;[20]

(d) the foot drop that he had experienced in the past has resolved, unless his pain is bad. This symptoms "came good' in about 2023 or 2024;[21]

(e) between 2001 and 2010, he saw an osteopath for his back problems, located in suburbs where he was then living. In 2010, he attended a physiotherapist in St Kilda. In January 2014, he underwent a CT scan of his back. He also saw an orthopaedic surgeon, Mr De La Harpe, while he was still working with the employer. At this time he also attended at the gym to develop strength in his back. While he was undertaking exercises at the gym, on a couple of occasions he aggravated his back. He began seeing another osteopath in around 2017;[22]

(f) he has been reliant on pain-relieving medications such as amitriptyline, Panadeine Forte, Endone and Celebrex. These medications have caused him to experience gastrointestinal problems, for which he has been put on Nexium, 40 milligrams, and Nizac, 300 milligrams, by his gastroenterologist. He has used Nexium, 20 milligrams, that can be purchased over the counter at the chemist for over five years, sometimes taking two per day;[23]

(g) otherwise in terms of pain-killing medication, he relies on Targin, 20 milligrams in the morning and 10 milligrams at night. He is prescribed Clonidine and Diazepam to assist with his sleep. In relation to his mental health issues, he takes other medication;[24]

(h) in terms of other treatment for his lower back, he has had a few sessions of remedial massage over the last twelve months, although he did not find that this really helped;[25]

(i) his sleep has been significantly affected by reason of his lower back pain. It is difficult for him to find a comfortable position to fall asleep in, that accommodates his back pain. When he does eventually get off to sleep, he is regularly woken up by pain in his lower back, and then he has to go through a whole process of re-adjusting and falling asleep. He regularly wakes up in the morning unrefreshed and fatigued;[26]

(j) he tries to avoid movements like bending, squatting, kneeling, twisting and turning, as these activities tend to aggravate the pain that he experiences through his lower back. He also tries to limit activities that require him to lift items that are heavy, bulky or awkward. He tries to limit the weight of items that he lifts to between 4 to 6 kilograms, depending on his experience on that day. If he does have to lift things repetitively, he tries to take regular breaks to minimise the increase in back pain that he experiences;[27]

(k) the pain in his back limits his ability to walk, stand and sit for long periods of time. He finds he can walk or sit for between 40 and 45 minutes before the pain in his back deteriorates. His tolerance for standing in one spot is less, and is restricted to around 30 minutes at a time. If he has been sitting, standing or walking for too long, he finds that he needs to adjust his posture and take frequent breaks in order to manage his back pain;[28]

(l) the pain in his back has impacted his ability to look after himself and perform ordinary activities of personal care. For example his ability to shower himself has been impacted. On bad pain days, he finds it challenging to reach behind himself and wash his body. His limitations with bending make it difficult for him to bend down and put socks or shoes on. He has to be conscious about doing this activity from a seated position, rather than trying to reach down to his feet;[29]

(m) his lower back pain has limited his ability to drive. Driving or sitting in a car as a passenger for extended periods of time triggers an increase in his back pain and he has to take regular breaks to get out of the car and stretch;[30]

(n) he now has difficulty with basic domestic chores. He lives independently in a granny flat behind his elderly mother's home. Due to his injuries, he is unable to care for his mother. He still manages to get things done around the house for himself, but he is very slow and has to take frequent breaks. He finds himself stretching out the length of time between chores as long as possible, which means that he does not do things like vacuuming or changing the bedsheets as regularly as he did before. Cooking is also a challenge, as he finds that standing on his feet for extended periods triggers the pain he experiences in his back. He also struggles with lifting pots and pans onto and off the stove or bending down to lift trays in and out of the oven. He still tries to cook his own food but now gets food that is quick to prepare and involves minimal input;[31]

(o) in the past he used to travel to places such as Thailand, Bali, Hong Kong and Surfer's Paradise. He also attended horse races on Saturdays and used to go to horse shows. Now he has no plans to travel. The pain in his back which goes down into his right leg, would make travel problematic, in addition to the fact that he lacks motivation now to do anything;[32]

(p) he has no longer been able to maintain his friendships. He has no "social footprint";[33]

(q) he currently does not have a partner. He ended up separating from his previous partner in 2014. At the time they had been living together. Because of his state at that time, it simply became too much for the relationship and it ended. At that time he returned to live at his mother's property;[34] and

(r) he has always been one to look after others financially, helping not only his mother, but also his brother and sister. He used to have Christmas at his house. He would help out in the LGBT community. Whereas in the past he was very independent, now he is almost completely dependent on others.[35]

1. Under cross-examination, the plaintiff gave the following relevant evidence:

(a) the pain associated with the injury to his back has been longstanding, starting in about 2001 or 2002;[36]

(b) the pain that he experienced became worse over time. He remembers an occasion where the doctor prescribed him Panadeine Forte and that was the first time he had required strong painkillers. He does not remember when this was;[37]

(c) although he initially agreed that since that time, the nature of his pain and the limitations he suffers because of it have remained fairly constant, he qualified this answer by saying that he thought his pain levels and ability to undertake activities had "probably deteriorated over the years";[38]

(d) when he commenced with the employer, he was employed to be a delivery driver and work in the warehouse. When he was promoted to be a manager, he was not relieved of those other duties: "I was still the warehouse staff and delivery driver and the manager. So I was doing three people's jobs";[39]

(e) even when the forklift was being used in the warehouse, staff would still have to manually take the product off the pallet and put it into the warehouse;[40]

(f) the same thing occurred with doing deliveries. A forklift would be able to load product into the van that was being driven, but once it got to the delivery side, the van would need to be unloaded by hand.[41] He confirmed that he resigned from the place of work in October 2014. He agreed that he may not have put in his Worker's Injury Claim Form until June 2015. He did not dispute that the initial claim listed the injury as being chronic depression;[42]

(g) he did not dispute that his Claim Form for his back injury was lodged in around 2022;[43]

(h) he agreed that when he initially left his place of work, it was due to an incident which caused severe mental health problems for him;[44]

(i) he agreed that his complex of mental illnesses and injuries included PTSD, Major Depressive Disorder, acute anxiety and an Adjustment Disorder related to his physical injury;[45]

(j) he has seen a psychologist called Sylvia Sefa. In the context of consulting her about his psychological problems, he agreed that he had told her that he had decreased interest in his activities, felt isolated and had difficulty sleeping in the context of his psychiatric injury. He also agreed that if it were in her report, he would have told Ms Sefa that he struggled to engage in family events and struggled to leave the house to attend appointments, in the context of his psychiatric injury. It was suggested to him that he had not presented any of these matters as being consequences related to his physical pain. In response he replied "... she's a clinical psychologist ... Not a back doctor";[46]

(k) he agreed that he had told Dr Andrew Hui, psychiatrist, that as a result of his psychiatric injuries, he had suffered a loss of interest in activities that he used to enjoy, felt distant or cut off from other people and experienced trouble sleeping or staying asleep. In the context of being asked whether or not he had told Dr Hui about these things being produced by his psychiatric condition, he replied "Yes. He's a psychiatrist ... but ... he's not a back doctor";[47]

(l) it was suggested to him that clonidine and Diazepam are medications prescribed for his psychiatric condition. He initially agreed with this proposition but then qualified this answer by saying "Well, ... the Valium [is] for my muscles, as well. ... That helps with anxiety and muscles";[48]

(m) he agreed that he had told Dr David Weissman, consultant psychiatrist, in the context of his psychiatric condition, that he spends a lot of time with his sister and her children, but apart from this did not socialise. He agreed that sometimes his sister needs to remind him to shower and dress himself. He disagreed that his sister does all the cooking, cleaning and laundry. He says that he now uses Menulog and Uber Eats because he does not cook. He said he does the odd load of washing, but he does not need much washing done;[49]

(n) he confirmed that he had not told Dr Weissman that any of these matters were related to his back pain. However, he qualified this answer by saying "He's a psychiatrist";[50]

(o) he agreed that he had told Dr Justin Lewis, consultant psychiatrist, that he had significant difficulties leaving his house, secondary to anxiety symptoms. He agreed that he had told Dr Lewis that his struggles with domestic tasks were related to poor motivation. He agreed that he had not said to Dr Lewis that his struggle with domestic tasks was related to mobility restrictions;[51]

(p) he agreed that he had told Dr Lewis that his difficulties with driving long distances were because of cognitive difficulties and not because of physical discomfort;[52]

(q) he did not accept that his inability to perform his personal care tasks, such as showering, was because of psychological issues rather than his back pain;[53]

(r) he explained that when he takes a shower, he finds that activity "arduous and hard work ... And painful";[54]

(s) he explained that the reason he finds showering painful is because it reminds him of when he was working. He said his physical problems with showering are related to being able to loofah his body and bend down to wash his feet. He says he is unable to do these tasks because of his back pain;[55]

(t) he denied the suggestion that his sleep problems are caused entirely by his psychiatric injury. He agreed that his sleep has been partly affected by his psychiatric injury, but also said that his sleep is interrupted by his back pain. He qualified this answer further by saying "the back pain exacerbates my mental health";[56]

(u) when pressed in relation to whether or not his sleep was truly interrupted by his pack pain, he replied:

" ... if I had a second chance and could explain myself all over again, ... I would love that opportunity to be able to express that my back is just as bad as my brain ... ."[57]

(v) when asked why he had told Dr Hui, Dr Weissman, Dr Lewis and Ms Sefa that the symptoms he was referring to were consequences of his psychiatric injury, he replied:

"Ah they're psychiatrists ... now that I think about it, I should have incorporated that into the whole ... the whole body, rather than just body and brain. I should have talked more about my back issues, but I haven't."[58]

(w) it was suggested to him that he should have known that it was highly relevant to tell these doctors that the symptoms from which he was suffering were consequences associated with back pain. He accepted that this was true, but qualified his answer by saying :

"I've probably always blamed my back for my psychiatric ... my back pain exacerbates my mental health quite a lot more than I wish it ever did. I wish the back would go away, so I'd only have to deal with the psychiatric part. That would be so much easier ... So much easier."[59]

(x) he was taken to a report produced by Professor Richard Bittar, orthopaedic surgeon. He accepted that he had told Professor Bittar about the effects of his back pain and right leg pain, included diminished socialising and inability to drive, impact on his recreational activities, impact on his sleep, and impact on his domestic activities. He agreed that he had not told Professor Bittar that these effects and consequences were produced by his psychiatric injury. It was suggested to him that he had misled Professor Bittar about these matters because in fact, those effects were at least substantially produced by his very serious psychiatric condition. He did not agree with this proposition;[60]

(y) each of these matters was put to him separately for comment. Firstly, it was suggested to him that the reason he socialises less is because of his psychiatric injury. He did not agree with this proposition. He said that his decrease in socialising was because of both his back pain and psychological consequences;[61]

(z) it was suggested to him that he was misattributing effects and consequences of his psychiatric injury to his back problems. In response, he replied that there may be "a little bit in there of my psychiatric. But that's predominantly ... my back";[62]

(aa) he was asked whether or not his inability to socialise was primarily because of his back. In response he replied, "My back and my psychological anxiety". When pressed about whether or not this consequence is primarily because of his back, he replied, "which increases my anxiety ... My back injury and pain now exacerbates my anxiety. Like, my back muscles are aching all now and makes me anxious. That's why I'm sweating." When pressed further to inform the Court out of the two possible injuries, namely the back injury and the psychiatric injury, what was the main reason that he struggles to socialise, he replied "My back injury";[63]

(bb) it was suggested to him that the idea that his back pain is the primary cause of his inability to socialise is a new idea that he has just come up with for the purposes of this proceeding. He did not agree with this proposition;[64]

(cc) when asked to identify the main cause of the impact upon his recreational activities, he replied "The back". It was put to him that he should have told the medical professionals treating his psychiatric condition that his back had a part to play and that he had not told them. He agreed with this proposition and added:

"... I guess what - all this comes up to here, to your brain. Your body comes up to your brain and - and your mental capacity ... it comes up all and affects your psychiatric, mental state, everything, from your feet up."[65]

(dd) he was asked to nominate what the main cause of his sleep interruption is. In response he replied, "My back";[66]

(ee) he was again pressed on whether or not this piece of information was something he should have told the medical professionals treating his psychiatric issues. In response he replied:

"Yes. I should have probably told them about my back pain, but they all knew I was taking Panadeine Forte and Targin, and ... Celebrex and Voltaren for my back ... they must have known, 'cause I was ... on all of that medication."[67]

(ff) he was asked whether he accepted he needed to tell the medical professionals treating his psychiatric condition that the main cause of his difficulty with sleeping was physical in nature. In response he replied:

"I thought they had already assumed telling them what medications I was on, that I'd have some sort of painful injury, when you are on those Endones, Panadeine Fort, Celebrexes, amitriptyline. When you're on those types of things, I thought health professionals would know that there must be something else going on: it's not just an antidepressant, it's not a Valium. Yeah."[68]

(gg) he said that the difficulties with his domestic activities are mainly caused by his back. He agreed that this is a piece of information that he should have shared with his treating medical professionals who are dealing with his psychiatric condition and that he did not do so;[69]

(hh) it was suggested to the plaintiff that the evidence he had given today about these consequences being produced mainly by his back pain was new and false evidence. He denied this proposition. It was suggested to him that this was evidence that he hoped would assist his case. He denied this proposition. He was asked if he accepted that he had fabricated this evidence, to which he replied "No, sir";[70]

(ii) it was put to the plaintiff that he had been going to the gym for many decades. He said that this was true, but qualified the answer by saying that he had gone "much less" in the last decade;[71]

(jj) he agreed that he had engaged in "a little bit of" F45. He agreed that it was fair to say that F45 was something called high-intensity interval training. He agreed it is a circuit that lasts 45 minutes, and involves a variety of equipment. He agreed that in practice, F45 involves pushing, pulling, lifting, twisting and bending;[72]

(kk) he denied that he has a tendency to "overdo it" at the gym;[73]

(ll) he accepted that in December 2015, he was going to the gym twice a day;[74]

(mm) he was asked whether or not, in 2019, he was also going to the gym twice a day. In response he replied, "No, sir";[75]

(nn) he was asked in 2019 how frequently he would have been going to the gym. In response he replied, "very rarely. COVID hit not long after." He denied that he had a tendency to injure himself at the gym;[76]

(oo) he could not recall having told a number of doctors that his back pain was caused by doing gym exercises;[77]

(pp) he was taken to a record of a consultation with physiotherapist, Anthony Belcher. It was pointed out that the note recorded that the first time he felt lower back pain was when he was doing kettle-ball swings at the gym. He accepted that he may have told Mr Belcher this. It was suggested to him that this is true. In response he replied:

"That's not the first time I felt lower back pain ... I must have done something at the gym that exacerbated ... or hurt at the time. It's not the first time I'd complained about my back."[78]

(qq) he was taken to a note from the medical records that recorded that in mid-2019, he had reported that he "usually goes to the gym". In response he replied that he would have to check his membership records. He explained "It's been paused on and off that many times";[79]

(rr) he was taken to a note entitled "Surgery consultation" dated 2 March 2023. It was put to him that the second line of the note had reported that he had tweaked his back doing some exercises. In response he replied, "Since COVID I've only engaged in the home exercising". He was asked what home exercises he does and whether it is similar to the F45 regime. In response he replied, "Oh no way, no. No. I've got a back roller, and I just do some bending and stretching and yoga sort of poses at home. Nothing exciting, nothing special, nothing vigorous";[80]

(ss) it was put to him that he was still going to the gym at that time. It was suggested to him that he had in fact been going to the gym fairly regularly since he finished with the employer right up until today's date. He said that he had gone to the gym "On and off";[81]

(tt) he was asked if he remembered slipping a disc in another gym incident in 2018. He did not recall this incident;[82]

(uu) it was suggested to him that if he was telling the truth about the intensity of the pain he was experiencing as a result of his back problem, and that that pain was present in 2015, then he would have been unable to participate in F45 because of its high-intensity nature. In response he replied:

"I did not partake in every activity in F45 ... there was activities that I couldn't do ... So what I would do is just jog on the spot. So if I couldn't do something, if I couldn't jump up ... onto something, I would just jog on the spot.

... I'd always been doing a limited version at F45.

... in specific exercises that ... were exacerbating my back ... or I wasn't able to do, or was causing extra pain. I would not partake in those."[83]

(vv) he finished F45 because it was "too much for me ... It was too vigorous, too hard". He was asked whether or not he was doing the full range of exercises of F45. In response he replied, "At the start I was, yes". It was suggested to him that what he just told the Court is that F45 was causing him injuries. In response he replied, "It was too much on my body";[84]

(ww) it was suggested to him that the back pain from which he presently suffers has tended to arise because he injured himself doing vigorous exercises. He did not accept this proposition;[85]

(xx) it was put to him that he had not told Professor Bittar about his exercise regime. In response he replied, "I only told him what questions I was asked". It was put to him that he did not volunteer to Professor Bittar that he had a significant history of "gym work, F45, other exercise". In response he replied, "I call it exercise and trying to keep yourself healthy". When pressed, he agreed he had not told Professor Bittar about these matters;[86]

(yy) it was suggested to him that the true condition of his back at the moment is that he has underlying low-level niggles with a degree of pain. He did not accept this proposition. He was asked whether or not he says that the pain is in fact more severe. In response he replied, "Yeah. I'm in a lot of pain right now ... It's not psychological; I'm in pain";[87] and

(zz) it was suggested to him that since he left work with the employer, the true position with the back is that the pain has been a product of vigorous exercise, and those have been the moments when the pain has spiked above just a niggle into something really difficult. He disagreed with this proposition.[88]

1. Under re-examination, the plaintiff gave the following relevant evidence:

(a) he clarified that when he talked about hurting himself during F45 he really meant that some of the activities would exacerbate his pain, which would mean that he stopped that exercise. He confirmed that at no stage was he meaning to give evidence that he had suffered a new injury due to those activities. He said that when he stopped those activities, he would then feel "fine";[89] and

(b) when asked to clarify what percentage of his sleep disruption is attributable to his back pain, he replied "70 - 30. That's being kind." He clarified that the sleep interruption was 70 per cent attributable to his back pain and 30 per cent attributable to his psychiatric presentation.[90]

1. There were numerous medical reports contained in the tendered material. Both parties relied upon reports from medico-legal experts. A précis of the relevant medical material is set out below.

1. The plaintiff relied upon four reports from Dr Roland Lee, general practitioner: the first dated 23 May 2023; the second dated 23 July 2024; the third dated 2 August 2024, and the fourth dated 4 February 2025.
2. In the first report, Dr Lee said that the diagnosis in relation to his back injury is "chronic pain/sciatica due to L5/S1 disc prolapse with nerve root impingement". He thought that the plaintiff's back condition was related to his manual lifting of heavy drums at work as there were no forklifts available to assist with this. He said, at that time, the plaintiff's prognosis was "very guarded".[91] From a psychological point of view, Dr Lee diagnosed the plaintiff as suffering from PTSD and Major Depression and anxiety. Treatment for that condition consisted of Lexapro, 40 milligrams daily; Valium, half twice daily and one at night, and Endep, 25 milligrams at night, to help with sleep.[92] Dr Lee said that the plaintiff experienced "frequent flare-ups" of his psychological condition". He thought there was a "likelihood of deterioration if there is no ongoing support and the PTSD issues are not addressed".[93]
3. In the third report, Dr Lee noted that the plaintiff's treatment consisted initially of "Panadeine Forte (a strong analgesic) for pain 1-2 tabs twice daily as needed and Endone a narcotic analgesic and Celebrex an anti-inflammatory, the latter to be used intermittently".[94]
4. He noted, however, that:

"... Since about March 2023, due to increased severity of his pain ... [the plaintiff] has required regular long acting narcotic analgesic Targin initially 5mig twice daily and gradually increased to now 10mg nocte and 20 mg ... [mane]. He has also in the past had treatment at various times from an osteopath, remedial masseur and acupuncturist on a regular basis. He has also attended the gym regularly to improve his overall strength and fitness. Currently, he is still performing exercises for his back at home on a regular basis. He is also using an infrared sauna at home that he purchased which is providing some relief for his back pain."[95]

1. Dr Lee noted that the plaintiff complained of ongoing lower back pain radiating to his right groin/testicle. He said that the pain is present daily with:

"... frequent intermittent flare ups depending on the day and his activities. This restricts his activities and movements eg bending, lifting, pulling, pushing, shoving and he is often unable to sit or stand for a prolonged period. The pain also restricts his ability to do any prolonged driving of more than half or one hour continuously."[96]

1. In relation to his psychological condition, in the third report, Dr Lee noted that the plaintiff reported ongoing problems with "insomnia, poor concentration and motivation, difficulty leaving his home at times, poor self esteem and lack of confidence". He said that these symptoms "affect the plaintiff's day to day functioning and social interactions".[97]
2. In the fourth report, Dr Lee noted that the plaintiff's back condition had remained much the same:

"... with intermittent flare-ups of the pain. There is no change in the diagnosis.

The prognosis is still very guarded and uncertain regarding his future care with respect to his back injuries."[98]

1. The plaintiff relied upon one medico-legal report from Professor Richard Bittar, consultant neurosurgeon, dated 7 February 2025. In that report, Professor Bittar said that, in his opinion, the plaintiff presented with lower back pain and referred right leg pain secondary to aggravation of lumbar spondylosis. He thought that the plaintiff's employment had been a significant contributing factor, specifically the heavy and repetitive workplace activities undertaken during the course of his employment with the employer from around 2001 until 2014.
2. He thought that the plaintiff would be likely to continue to experience significant pain and disability into the foreseeable future. He felt that the plaintiff was likely to remain significantly restricted in relation to social, domestic and recreational activities into the foreseeable future.[99]
3. He noted that the plaintiff's social life, ability to drive, recreational activities and domestic activities, including shopping, cleaning and gardening, had all been impacted by the plaintiff's severe back pain. He noted that, by reason of the pain, the plaintiff's sleep was severely impacted. He thought that, overall, the plaintiff's quality of life was "severely diminished".[100]
4. The plaintiff relied upon a medico-legal report from Dr Justin Lewis, consultant psychiatrist, dated 19 May 2025, insofar as that report set out matters relating to the plaintiff's physical injuries. In that report, Dr Lewis noted that the plaintiff had informed him that his physical injuries had impacted his social life, secondary to pain and physical restrictions. He noted the plaintiff reported that his ongoing back pain symptoms precluded him from returning to previously enjoying recreational interests. He thought that these restrictions would continue for the foreseeable future.[101]
5. The plaintiff relied upon five radiological scans of his lumbar spine, the first being a CT scan of the lumbar spine dated 24 January 2014, a CT scan of the lumbar spine dated 5 October 2015, a CT scan of the lumbar spine dated 15 November 2018, an MRI scan of the lumbar spine conducted on 17 June 2019 and an MRI of the lumbar spine conducted on 26 February 2024. The first CT scan reported "minor annular bulges ... seen at L4/5 and L5/S1, not encroaching on the spinal canal". There was no evidence of degenerative disc changes.[102] The second and third CT scans both noted a bulge at the L4-5 and L5-S1 discs. The third CT scan noted, in that context, that there was "low grade contact of the origins of the S1 nerve roots".[103] Each of the MRI reports broadly confirmed the findings that had been made on the earlier CT scans.[104]
6. The plaintiff relied upon several entries in the clinical records relating to the plaintiff, which were contained within the Defendant's Court Book viz:

Upper lumbar pain for a long time. Seeing osteopath.

Rx: Panadeine Forte tablets [20] ... Take 1-2 tab 4 times a day

Referral: Symbion - X-ray (Spine; lumbar)."[105]

In setting of lifting 30 kg drums over years at work.

Coccygeal pain, midline, sometimes to left, radiates slightly into left gluteal region.

Referral: CT-Scan (Spine; lumbosacral) ... ."[106]

UPDATED - Medication: Panadeine Forte Tablets (Tablet) [20] Dosage Changed from 2 oral b.d.

Does not believe he is capable of continuing work in current capacity.

First time felt pain doing kettle ball swings at the gym

Just the other day woke up severe LBP when he stood up

Ease: Lie on foam roller - pops back and it relieves Tx muscle tension

1. The defendant relied upon one medico-legal report from Associate Professor Peter Doherty, consultant psychiatrist, dated 11 January 2019. In that report, Associate Professor Doherty diagnosed the plaintiff as suffering from an Anxiety Disorder, which he thought was underpinned by certain personal characteristics in the plaintiff.[110]
2. He was unable to say how, if at all, the plaintiff's present psychological symptoms constitute any incapacity for pre-injury or suitable employment. He noted that the history surrounding the onset of symptoms "is disputed" and also that there are inconsistencies in the plaintiff's presentation, making an assessment of his mental state and capacity for work "unreliable". He thought that the natural history of the claimed psychiatric condition is that "it will fade with time and treatment, and in this case the presentation to me was dramatic and not convincing".[111]
3. He said that the plaintiff's presentation "is not typical of an anxiety or even a depressive disorder, that has been treated over some years, and the distance between the stressor and the current date is four years". He thought that it would be informative to review the plaintiff's daily activities and functional capacity, which might "assist in a more comprehensive assessment of the worker's mental state and capacity for work".[112]
4. The defendant relied upon a medico-legal report from Dr David Weissman, consultant psychiatrist, dated 11 February 2019. This report was originally provided to the plaintiff's lawyers. As to the plaintiff's current psychological and emotional symptoms at that time, Dr Weissman reported the following matters:

"He told me that his concentration and short-term memory are 'not that good' for all things outside of what happened to him at work. He told me that the work-related matters are 'still fresh in my mind and haunt me. I loved my job.'

I asked him about his leisure activities and hobbies. He spends a lot of time with his sister and his sister's two children, his nephew aged 4 and his niece aged 6 months. Apart from this he does not socialise.

He told me that he needs reminders from his sister to shower and dress himself each day. Otherwise he does not shower for two or three days at a time.

His sister does all of the cooking, cleaning and laundry at home.

He occasionally mows the lawn every six weeks. He avoids going to the supermarket. He does online shopping. He occasionally goes to the gym.

He is able to drive however his sister takes him to see his psychiatrist."[113]

1. At that time, Dr Weissman diagnosed the plaintiff as suffering from "moderate mixed anxiety and depressive symptoms, themes and features as well as traumatisation features". He thought that the plaintiff seemed to be suffering from "at least a moderate amount of psychiatrically based functional impairment".[114] He said that the plaintiff's prognosis for the future in relation to his psychiatric diagnosis was "quite uncertain and guarded, and fairly poor, negative and unfavourable".[115]
2. The defendant relied upon one report from the plaintiff's treating psychologist, Ms Sylvia Sefa, dated 5 June 2023. In that report, Ms Sefa diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder and Major Depressive Disorder, with anxious distress and panic attacks.[116]
3. She noted that the plaintiff reported a decreased interest in activities and feeling isolated following the trauma he had suffered at work. She also noted, at that time, that the plaintiff reported difficulty with sleeping. She said that the plaintiff's symptoms:

"... cause significant daily distress and functional impairment. He has reported not being able to work since 2014, unable to attend the gym on a regular basis and when he has attended the gym in the past it has been with significant distress, unable to attend social events and is extremely isolated, struggles to engage in family events and struggles to leave the house to attend our appointments.

... [the plaintiff] reported being unable to sleep or leave the house due to anxiety ..."[117]

1. The defendant relied upon one report from Dr Andrew Hui, the plaintiff's treating psychiatrist, dated 14 May 2025. Dr Hui stated that the plaintiff's initial consultation was on 12 January 2024. Dr Hui diagnosed the plaintiff as suffering from "Other Specified Trauma- and Other Stressor- Related Disorder (various life- and non-life- threatening traumas) with dissociative features".[118]
2. Dr Hui noted that the plaintiff had reported moderate-severe levels of symptoms in the "cognitions and mood cluster", including a loss of interest in activities that he used to enjoy, feeling distanced or cut off from other people, as well as trouble experiencing positive feelings.[119]
3. Dr Hui also noted that the plaintiff had reported having trouble sleeping or staying asleep.[120] Dr Hui noted that the plaintiff is on numerous medications for the treatment of various psychiatric symptoms, including "Diazepam as a second-line treatment".[121] Dr Hui thought that expectations as to any resolution in the plaintiff's psychiatric condition should be "modest".[122]
4. The defendant relied upon various entries in the plaintiff's medical records, including the following:

Going to gym twice a day - this has been therapeutic for him.

Had prolapsed disc happened at gym, checked with CT scan

Problems (active) ... anxiety ... asthma ... depression ...

Subjective Assessment: 39 yo M admitted following sudden onset of R foot drop.

now on 50mg amitriptyline, taking endone - but says he tries not to take everyday

now he's asking to go back on targin which I prescribed him a year ago ... it did help him with pain, would rather not use endone/panadeine forte but something more slow release."[126]

Needs WCC - doing okay going to gym again [has to be careful] with back has a PT ..."[127]

1. The defendant relied upon the same physiotherapy record dated 19 November 2018 which was also relied upon by the plaintiff. An extract from that record has been set out above.

1. The plaintiff's credit was challenged during cross-examination, in particular in relation to the cause of the various symptoms from which he presently suffers. As to this, the plaintiff was challenged about his evidence concerning the cause of his interrupted sleep, his inability to socialise, his unwillingness to leave the house, his inability to engage in self-care activities such as showering and the reason for taking some of his medication. The plaintiff's evidence concerning these matters has been set out in detail above.
2. Further, the plaintiff was challenged about the history which he gave to various doctors and medico-legal experts. He agreed that at times, he had not been clear with those medical professionals about which symptoms were caused by the injury to his spine and which were attributable to his psychological issues. In other instances, he agreed that he had reported only his back symptoms and omitted reference to his psychological symptoms, or vice versa, when dealing with particular doctors. He was candid in his explanation for these events, namely, that when he was with a doctor treating or assessing him for the injury to his spine, he spoke only about issues to do with his spine, because that person is not a psychologist. Similarly, he only spoke with those assessing or treating him for his psychological injury about psychological issues, because they were not treating him for his spinal injury. I accept that the plaintiff's explanation for these interactions with various doctors, was honest and credible.
3. 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 cooperative 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 where necessary, many of which were adverse to his own interests.
4. For instance, the plaintiff conceded, and I find, that his difficulty with concentration, lack of motivation, disinclination to leave the house and diminished ability to socialise, are all consequences of his psychological disturbance or disorder. However, similarly, when pressed on what was the substantial cause of his sleep disturbance, the plaintiff gave evidence, and I find, that his back pain is the substantial cause of that consequence.
5. I have carefully considered but do not accept the defendant's submission that the plaintiff's evidence about his level of pain over the years, lacks credibility. The basis on which this was put was that throughout the time when the plaintiff said that he was experiencing pain at the current magnitude, he was continuing to exercise, including at one stage, going twice a day to the gym and trying to participate in F45 classes, which were quite vigorous.
6. This submission does not take into account the totality of the plaintiff's evidence in relation to these matters, which was to the effect that he wanted to keep exercising in order to manage his back pain, but modified his activities at the gym when they became too much for him. For instance, he gave evidence that during F45 classes, when he was unable to complete particular activities, he simply jogged on the spot. Similarly, he was frank about the fact that in the end, F45 was too vigorous an activity for him and he ceased going.
7. An examination of the tendered documents, including the records of the plaintiff's attendances on doctors over many years and the evidence of deterioration of his spine on radiological scan over the years, corroborates the plaintiff's account of his increasing spinal injury and pain, which 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.
8. 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 and considered all of the relevant evidence, I have formed the view that the plaintiff has been extremely stoic in relation to management of his spinal injury and has taken numerous steps to try and live his life as best he can, despite the pain from which he constantly suffers by reason of this injury.
2. I find that despite the consequences of the injury to his spine, the onset of which was many years ago, he continued to work for many years until he was simply unable to do so anymore. Throughout this time, I find that he continued to attend the gym to try and maintain an exercise program, despite the spinal pain he was experiencing. Once this became too much for him, he continued exercising in a home setting, to maintain the strength in his back and to try and minimise the pain he experiences. The evidence also indicates and I find that the plaintiff has purchased an infrared sauna which he uses at home, to manage his spinal pain.

1. The details of the occurrence of the incident are not in dispute.
2. Having considered all of the evidence from the plaintiff's treating doctors, as well as the medico-legal experts on both sides, I am satisfied that as a result of his employment with the employer, the plaintiff presently suffers from pain in his lumbar spine and referred right leg pain, secondary to aggravation of lumbar spondylosis.[128]

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

1. Having considered the relevant reports, and in particular the reports from Dr Lee[129] and Professor Bittar.[130] I find that the plaintiff is likely to suffer from the consequences of his lumbar spine injury sustained while working for the employer, for the foreseeable future. Given this, I find that the injury is permanent for the purposes of the Act.

Are the consequences to the Plaintiff of the spinal injury "serious"?

1. In closing addresses, counsel for the defendant submitted that on the evidence, the Court would struggle to be satisfied that the consequences which the plaintiff now attributes to his lumbar spine injury, are "truly attributable to the back pain, [to the] exclusion of his very serious complex of psychiatric illnesses".
2. In response, Senior Counsel for the plaintiff submitted that in circumstances where there is a substantial organic basis for the plaintiff's injury, there is very little need, if any, for disentanglement of the consequences from which the plaintiff says he suffers.
3. As to this, reliance was placed on the radiological evidence, which it was submitted, indicates that the plaintiff's spinal injury is not simply an aggravation of pre-existing degenerative changes, but an acute injury involving disc bulges and contact with nerves. It was submitted that this evidence readily explains, as was accepted by Professor Bittar, the considerable consequences which the plaintiff gave evidence he suffers as a result of his spinal injury.
4. Having considered all of the evidence in this matter, I accept the submission made by the plaintiff that there is a substantial organic basis for his spinal injury.
5. Nevertheless, in light of the evidence given by the plaintiff during the hearing, I am mindful to ensure that only those consequences which the evidence demonstrates are substantially caused by the plaintiff's spinal injury, are taken into account for the purposes of assessing whether the plaintiff has suffered a "serious injury" as that term is defined in the Act.
6. Having considered all of the evidence, together with the submissions made by both parties, I am satisfied to the requisite standard, and find that by reason of the injury to his lumbar spine alone, the plaintiff suffers from the following consequences:

(a) constant pain in his lower back, which radiates through his right side, into his hip, groin, leg, foot and heel. The pain can become throbbing in nature, exacerbated by pushing, pulling, lifting, twisting, coughing, sneezing, straining and bending, with aching in his legs and testicles. When the pain flares up on a bad day, it causes numbness and tingling into his right foot. The pain is present every day, and increases with activity;

(b) the need to take strong, pain-relieving medications such as Targin, morning and night, and Endone and Celebrex intermittently as needed;

(c) the need to undertake the following additional measures for pain relief:

(i) seeing a remedial masseur and osteopath occasionally;

(ii) undertaking a home exercise program; and

(iii) using an infrared sauna which he purchased to assist with managing the pain in his back;

(d) interrupted sleep due to difficulty finding a comfortable position in which to fall asleep. When he does eventually get to sleep, I find that he is regularly woken up by pain in his lower back, and then he has to go through a whole process of re-adjusting and falling asleep. I find that he regularly wakes up in the morning unrefreshed and fatigued;

(e) the need to avoid movements like bending, squatting, kneeling, twisting and turning, as these activities tend to aggravate the pain that he experiences through his lower back. He also tries to limit activities that require him to lift items that are heavy, bulky or awkward;

(f) a limitation in his ability to walk, stand and sit for long periods of time; and

(g) a limitation in his ability to perform domestic chores, such as cooking. That is because he finds that standing on his feet for extended periods triggers the pain he experiences in his back. He also struggles with lifting pots and pans onto and off the stove or bending down to lift trays in and out of the oven.

1. In Haden Engineering Pty Ltd v McKinnon,[131] 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 plaintiff's physical capabilities (including capacity for work) and enjoyment of life.[132] 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.[133]
2. 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 his commitment to treatment, his attempts to return to his usual activities of daily living and his attitude to performing his work duties in a modified manner.
3. The fact that the plaintiff was prepared to try and keep working and has been exercising despite the onset of his spinal pain, is not a matter that tells against the granting of his application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[134]

"... it would be unfortunate, and in my view wrongheaded, if ... such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury."

1. As was observed in Hooley v Transport Accident Commission:[135]

"As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd, when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced ... All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time."

1. In Kelso v Tatiara Meat Co Pty Ltd,[136] the Court of Appeal 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."

1. I have set out above the consequences which the plaintiff's injury has had on his day-to-day life. I have made findings which support the conclusion that chronic pain in his lumbar spine is a prominent feature of the plaintiff's life, which requires him to take medication on a frequent basis. Furthermore, I have found that his lumbar spine pain affects nearly every aspect of his day-to-day life. By reason of the plaintiff's age, I find that he will continue to suffer from each of the consequences set out above, for a lengthy period of time. This, in turn, means that these consequences are more significant for him than they might be for another, older plaintiff.
2. Having regard to this, and by reason of the findings which I have made about the consequences from which the plaintiff suffers as a result of the injury to his lumbar spine, I am satisfied to the requisite standard, that those consequences 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 lumbar 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; 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] [2005] VSCA 33; (2005) 14 VR 622

[6] Specified pages of the Plaintiff's Amended Court Book and certain pages of the Defendant's Court Book were marked as Exhibit ("Ex") P1; specified pages of the Defendant's Court Book, together with certain pages of the Plaintiff's Court Book, were marked as Ex D1.

[16] Ex P1, p17, Transcript ("T") 14, Lines ("L") 23-25

[17] The plaintiff filed three affidavits, but only included the second and third affidavits in the bundle of material tendered as Ex P1

[131] [2010] VSCA 69; (2010) 31 VR 1

[134] [2008] VSCA 260 at paragraph [3]

[135] [2019] VSCA 263 at paragraph [51]