Carson v Transport Accident Commission [2024] VCC 354 (26 March 2024)

Last Updated: 26 March 2024

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised (Not) Restricted Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-04122
CI-22-04968

DAVID CARSON	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant
and
DAVID CARSON	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	22, 23, 24, 25 January 2024
DATE OF JUDGMENT:	26 March 2024
CASE MAY BE CITED AS:	Carson v Victorian WorkCover Authority; Carson v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2024] VCC 354

RULING
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Subject: ACCIDENT COMPENSATION

Catchwords: Serious injury application – impairment of the spine – pain and suffering – loss of earning capacity – course of employment – “transport accident”

Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 s335(2)(d), s326; Transport Accident Act s3(1)

Cases Cited: Belgrave Heights Christian School v Moore [2020] VSCA 240; Metro Trains Melbourne Pty Ltd v Graeme Allan Keay [2023] VSCA 223.

Subject: TRANSPORT ACCIDENT

Catchwords: Serious injury application – impairment of the spine – withdrawal of admission – “transport accident”

Legislation Cited: Transport Accident Act s3, s93

Cases Cited: Ansett Australia Ltd v Taylor [2006] VSCA 171; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; (2012) 34 VR 309; Asic v Comcare (2020) FCAFC 105; BC202005250; Belgrave Heights Christian School v Moore [2020] VSCA 240; Chan v Valmorbida (No 2) [2020] VSC 633; Corolovski v Victorian WorkCover Authority [2021] VCC 565; Cox v Cox [2013] VSC 318; De Agostino v Leatch & Transport Accident Commission [2011] VSC 249; Divcon (Aust) Pty Ltd v Devine Shipping Pty Ltd [1996] VicRp 58; [1996] 2 VR 79; Dordev v Cowan & Ors [2006] VSCA 254; Foursquare Construction Management Pty Ltd v Victorian WorkCover Authority (2022) 68 VR 415; Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; (2010) 31 VR 1; Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129; Insurance Commission of Western Australia v Container Handlers Pty Ltd; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; (2007) 17 VR 592; Koutroulis v Transport Accident Commission (TAC) [2011] VSC 159; Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436; Porter v Bonojero [2000] VSC 265; Rowe v Transport Accident Commission [2017] VSCA 377; Rigato Farms Pty Ltd v Ridolfi [2001] QSC 455; [2000] QCA 292; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Transport Accident Commission v Florrimell [2013] VSCA 247; Transport Accident Commission v Treloar [1992] VicRp 31; [1992] 1 VR 447.

Judgment: Leave granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Pilipasidis SC with Mr D O’Brien	Arnold, Thomas & Becker
For the Victorian WorkCover Authority	Ms S Manova	IDP Lawyers
For the Transport Accident Commission	Mr S Smith KC with Mr S Pinkstone	Solicitor for the Transport Accident Commission

HER HONOUR:

Preliminary

1. There are two applications for leave to bring proceedings for damages before the Court.
2. By the first Originating Motion CI-22-04122, dated 3 October 2022, the plaintiff seeks leave pursuant to Section 335 of Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRC Act”), to bring proceedings for damages for injuries sustained by him in the course of his employment with Peninsula Transit Pty Ltd (“the employer”) throughout the course of his employment and on 22 June 2016.
3. By the second amended Originating Motion CI-22-04968, dated 26 May 2023^[1], the plaintiff seeks leave pursuant to Section 93 of the Transport Accident Act 1986 (“TA Act”) to bring proceedings for damages for injury suffered by him in a transport accident on 22 June 2016 (“the accident”).
4. Both applications were brought pursuant to ss (a), the relevant body function being the spine. There were also a range of other injuries detailed in the Particulars of Injury which were not pursued.
5. The plaintiff seeks leave in relation to both pain and suffering and loss of earning capacity in the WIRC Act application.
6. The plaintiff swore two affidavits, the first in relation to his WIRC Act application on 3 May 2022 and his second on 14 November 2023 in his TA Act application. He was cross examined at length by defendant counsel who were both given leave to further cross examine. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
7. During the hearing of these two applications, a number of preliminary issues arose for determination.
8. In the TA Act proceeding, the Transport Accident Commission (“TAC”) withdrew its admission that the circumstances of an incident on 22 June 2016 constituted a transport accident and argued it did not. Having granted leave to withdraw the admission, I found the incident was a transport accident. Having then heard the application for leave pursuant to Section 93 of the TA Act, leave was granted to bring proceedings for damages in relation to the transport accident of 22 June 2016.
9. In the WIRC Act proceeding which involved injury throughout the course of employment, I accepted the submission by counsel for the VWA that the decision of the Court of Appeal in Metro Trains Mebourne Pty Ltd v Graeme Allan Keay^[2] excluded from that application consideration of any incidents that were a transport accident.

Preliminary issues

(i) The withdrawal of an admission

10. By letter dated 2 December 2022, the TAC advised the plaintiff’s solicitors that it accepted the incident involving driving over a speed hump on 22 June 2016, as described in his affidavit, constituted a transport accident in accordance with the TA Act (“the admission”).
11. During cross examination of the plaintiff, counsel for the TAC indicated he was instructed to seek to withdraw the admission that the June 2016 incident constituted a transport accident and place that issue in contest in the determination of the Section 93 application.^[3]
12. Counsel for both the plaintiff and the Victorian WorkCover Authority (the “VWA”) opposed this application. Accordingly, a ruling is required as to whether the TAC should be given leave to withdraw the admission.
13. The Court has the discretion to grant leave to withdraw admissions. Relevant factors in forming the Court’s exercise of discretion include whether the admission was made after deliberate consideration and full opportunity to consider whether the admission should be made; the strength of the case now advanced; that the admission may or may well be incorrect; delay in making the application to withdraw the admission; the significance of the admission to the respective cases of the party; prejudice to the applicant if the admission is not withdrawn and to the respondent if it is, and the interests of justice.^[4]
14. Rule 35.02 provides that a party may, by leave of the Court, withdraw an admission made voluntarily. This Rule applies to a Notice to Admit but the cases in relation thereto give some guidance as to the matters to be taken into account in this application where leave had been sought to withdraw the admission in the TAC’s correspondence.
15. There are two conditions to be satisfied before the Court will grant leave to withdraw an admission. Firstly, there should be an explanation for both how and why the admission came to be made. Secondly, detailed particulars should be given as to the issue or issues that would be raised at trial if the admission were to be withdrawn.^[5]
16. Parties seeking leave to withdraw an admission should explain how and why the admission came to be made, and identify the question or questions which the party would raise at trial if the admission were withdrawn.^[6]
17. Counsel for the TAC submitted if it was not established the incident on 22 June 2016 was a transport accident, there would be no necessity for the plaintiff to seek a serious injury certificate.^[7]
18. Reliance was placed on the decision of the Court of Appeal in Belgrave Heights Christian School v Moore^[8] where the court held that a number of incidents where the plaintiff experienced jolts and strains to her body because of the setup; and the nature of the seat which she was required to operate in the course of her employment, did not constitute a transport accident.^[9]
19. I will deal with this issue later.
20. Counsel for the TAC gave his client advice on the first day of trial, and in accordance with that advice, he was instructed to seek withdrawal of the admission so the issue of whether the 22 June 2016 incident was a “transport accident” point could be agitated. Counsel indicated he had advised the TAC that it was at least arguable that the incident of 22 June 2016 was not a transport accident.^[10]
21. While counsel for the TAC conceded he had not been able to find relevant authority in relation to a withdrawal of admission of this type, it was submitted that the principal consideration is, first, that it is a matter of significant importance, which it was in this case. It was not some marginal or peripheral point. It was critical, and of central importance to the application.
22. It was also submitted that there was no breach of the model litigant rules when the TAC acted on advice from counsel.^[11]
23. Counsel for the VWA indicated it was the Authority’s position and that of the plaintiff, that leave should not be given to withdraw the admission, although there was no prejudice claimed.^[12] However, it was submitted the absence of prejudice does not mean the TAC ought to be granted leave. Other matters ought to be balanced. The Court will usually require an explanation for the change in position before granting leave.^[13]
24. It was submitted that the advice of counsel ought to be rejected as a valid reason for withdrawing the admission because it would create, or have the potential to create, a situation where a statutory authority such as the TAC could make an important determination on a claimant’s claim and then arbitrarily withdraw it because of counsel’s advice. That would not be a position that would engender public confidence in the VWA, the TAC, or the legal system.^[14]
25. It was conceded the issue of whether the 22 June 2016 incident is a transport accident is clearly in dispute, but it is not a situation where there has been new evidence that would bring into question whether the incident really was a transport accident.^[15]
26. It was submitted it was not in the interests of justice for the Court to permit the TAC to withdraw the written admission made by its representative. Doing so would be akin to allowing an authorised insurer, say in a WorkCover case, to withdraw acceptance of liability for an impairment benefit after they had accepted it on counsel’s advice that no injury occurred at work.^[16]
27. It was conceded that the admission did not bind the TAC as an estoppel. The TAC was entitled to argue that the incident was not a transport accident, but the admission should stand as a piece of evidence in accordance with the authorities in Ansett v Taylor,^[17] Sednaoui^[18] and Florrimell,^[19] and the Court ought to accord whatever weight is appropriate having regard to the fact that no explanation has been given as to a change in opinion, other than that counsel has provided advice.^[20]
28. Counsel for the plaintiff accepted and adopted the submissions made on behalf of the VWA.
29. While the Court had discretion to withdraw the admission,^[21] it was submitted there was actually specific prejudice to the plaintiff, and, while there was no objection to the Section 93 application proceeding, the plaintiff may have opted not to issue proceedings against the TAC if it had initially advised it did not accept this was a transport accident. The plaintiff has now incurred all the legal costs that flow from this admission and may have made a tactical decision to run the case in a different way.^[22]
30. Relevant authorities relied on by counsel for the plaintiff were the decision of Delaney J in Chan v Valmorbida (No 2) –

“It has been often said in the context of applications to withdraw admissions, that the explanation proffered should be based on evidence of a “solid and substantial character”. However, what is adequate will depend upon the circumstances of the particular case.”^[23]

– and also the decision of Beach J in Divcon (Aust) Pty Ltd v Devine Shipping Pty Ltd:

“... As a matter of principle a party who has made an admission in a pleading should not be entitled to withdraw that admission without good cause, for example, that the admission was made in error by the party who prepared or gave the instructions for the preparation of the pleading, or as the consequence of a misapprehension by counsel or solicitor concerning the client’s instructions.”^[24]

31. In the absence of any affidavit to explain the TAC’s conduct in making the admission and then withdrawing it, it was submitted it was insufficient for counsel to inform the Court “It was based on my advice.” There should be evidence before the Court, not submissions.^[25]
32. There had been no change in the facts. There needed to be an explanation why the statutory authority, a professional litigant, at the first instance accepted the incident as being a transport accident, and suddenly withdrew that admission. The person who made the decision could then have been cross examined and explained the basis on which the decision was made. The plaintiff did not have that opportunity.^[26]
33. It was submitted the Court should not permit the TAC – given there has been no change in the facts, and the timing of the decision before the plaintiff had even finished his evidence completely – to then make a decision to withdraw the admission after the case had actually started.^[27]
34. It was submitted litigants should have the confidence that decisions made by statutory authorities, model litigants, when they come to court are the decisions that they are fighting with or accept or are relying on. There has got to be, on policy grounds, reasons why that should stand.^[28]
35. Counsel for the TAC replied that there was nothing arbitrary about receiving advice from senior counsel responsibly given and acting or providing instructions in accordance with that advice. That is not arbitrary, and cannot be described as anything like that. Seeking to draw analogies between Ansett v Taylor and a case of this nature is wholly misleading.^[29] Where there is an admission, the admission can remain, and the TAC can still make submissions that this is not a transport accident.^[30]

Findings

36. Whether or not the incident of 22 June 2016 is a transport accident is central to the determination of the leave application under Section 93 of the TA Act.
37. Satisfaction of the definition of “transport accident” under Section 3 is crucial before leave may be considered. Hence the subject of the admission is a matter of significant importance. It is not some marginal or peripheral point. It is critical, and of central importance to the application.
38. In these circumstances, the TAC is entitled to rely on the advice of Senior Counsel, at an early part of the hearing, that it was arguable the 22 June 2016 incident was not a transport accident – although there had been no change in the evidence as to the incident circumstances at that time.
39. Neither counsel for the plaintiff or for the VWA could point to any prejudice suffered by giving leave to withdraw the admission, save for the plaintiff in terms of potential costs.
40. Further, as counsel for the VWA conceded, there is no estoppel in the circumstances.
41. Accordingly, leave is granted to withdraw the admission.

(ii) Is the incident of 22 June 2016 a transport accident?

42. Having granted leave to withdraw the admission, it is then necessary to consider whether the 22 June 2016 incident is a “transport accident.”
43. Section 3(1) of the TA Act defines a ‘transport accident’ to mean:

“an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram.”

44. Section 93(1) of the TA Act states:

“(1) A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section.”

45. In Foursquare Construction Management Pty Ltd v Victorian WorkCover Authority,^[31] the Court of Appeal considered the meaning of Section 3 of the TA Act and whether the plaintiff’s injuries arose out of a transport accident.
46. The court held that the primary consideration was the wording of the statute, which required the accident be directly caused by the driving of a motor vehicle.
47. The court referred to the leading authority on the meaning of the scope of this definition and similar expressions as said by the High Court in Insurance Commission of Western Australia v Container Handlers Pty Ltd.^[32] In that case, McHugh J held that “directly caused by the driving” requires a causal link between the injury and some feature of the driving.^[33]
48. In the present case, there was no issue about what happened on 22 June 2016. While driving a bus at work, the plaintiff drove over a speedhump and there was some bottoming out of his seat causing sudden onset of low back pain. However, it was submitted on behalf of the TAC these circumstances did not constitute a transport accident, relying on the decisions of Belgrave Heights Christian School v Moore^[34] and Keay.
49. Belgrave Heights involved a case brought by a bus driver (Ms Moore) against her employer for a back injury she alleged she sustained during the course of her employment as a result of being required to drive a faulty bus with manual transmission and difficult brakes.
50. Ms Moore claimed that while driving the bus she was often jerked backward and forward in her seat; she did not have an appropriate seatbelt; her seat was poorly positioned in relation to the steering wheel; she did not have a headrest and the bus was ‘generally non-ergonomic.’
51. On 13 August 2012, (“the August 2012 incident”) whilst driving a different bus, Ms Moore claimed she suffered an acute injury to her lower back when she simultaneously applied the brake and clutch.
52. Having been granted leave to bring proceedings under Section 93 of the TA Act in relation to the August 2012 incident, Ms Moore issued a Writ in respect of injuries she alleged she sustained over the course of her employment, claiming injury by a gradual process during the whole period of her employment, including 13 August 2012 as a result of driving the bus.
53. The defendant filed a defence pleading the plaintiff was not entitled to bring a proceeding in respect of her work duties over the course of her employment as she had not obtained leave under Section 134AB of the Accident Compensation Act (“AC Act”). The defendant appealed after a County Court judge struck out this pleading.
54. The findings of the Court of Appeal were set out at paragraph 77:

“To that end, we note that the predicament the plaintiff currently finds herself in has been, at least in part, contributed to by the advices to her from, and approaches taken by or on behalf of, the TAC and the VWA. In particular, it is clear that the injury sustained by the plaintiff, as pleaded in her statement of claim, and as described in her affidavit, was due to the recurrent strains to which her back was subjected when driving the Hino bus over a number of years in the course of her employment with the defendant. That injury arose out of or was due to the nature of her employment with the defendant. It is not the result of any transport accident. In those circumstances, VWA’s solicitors were incorrect to assert that the injury, complained of by the plaintiff, was the result of a transport accident. Similarly, it is difficult to understand on what basis the TAC issued the certificate to the plaintiff in respect injury ‘as a result of a transport accident which occurred on 13 August 2012’. It is clear that whatever strains were imposed the plaintiff’s lower back on that one day, they were very much the ‘last straw’. It is difficult to see how the issue of the certificate by the TAC can be reconciled with the principles stated in cases such as Petkovski. In those circumstances, it would be hoped that if the plaintiff sought to reinstate the serious injury application, that she served on the defendant and the VWA, there would be no opposition to that course, and that the VWA, as a model litigant, would give appropriate weight to the assessment already made by TAC that the injury sustained by the plaintiff is a serious injury.”

55. Counsel for the TAC relied on paragraph 77 and also paragraph [41] of Keay:

“Next, Belgrave Heights does not provide support for the proposition that an injured worker who suffers a psychiatric injury as a result of multiple transport accidents, that occurred in the course of that worker’s employment, is entitled to make a serious injury application under s 335(2)(d) of the WIRC Act. The basis upon which the plaintiff in Belgrave Heights was permitted (indeed required) to make an application under s 134AB(16)(b) of the AC Act was that none of the episodes of jolting and jerking which contributed to her back injury could be described as an ‘incident’ as that word is used in the definition of the expression ‘transport accident’ in the TA Act — and thus the back injury suffered by the plaintiff in that case was not an ‘injury ... as a result of a transport accident’. If the episodes of jerking and jolting alleged by the plaintiff in Belgrave Heights had constituted transport accidents within the meaning of the TA Act, then, like the plaintiff in the present case, the plaintiff in Belgrave Heights would have been required to make separate serious injury applications under s 93(4)(d) of the TA Act.”

56. Similar to Belgrave Heights, counsel for the TAC submitted that the plaintiff in the present case suffered injury over the course of his employment over separate incidents and as a result of the defective driver’s seat. What happened on 22 June 2016 was simply another episode arising from the defective driver’s seat in the course of his employment, and not as a result of any transport accident.
57. Further, counsel submitted that the plaintiff’s injury does not arise as a result of driving the bus but rather as a result of being provided with defective equipment by his employer. It was suggested that there was nothing defective about a bus driving 26 kilometres an hour over a speed bump.
58. It was submitted the basis upon which the plaintiff in Belgrave Heights was required to make an application under s134AB was that none of the episodes of jolting and jerking which contributed to a back injury would be described as an incident, as that word is used in the definition of transport accident in the Act.^[35]
59. The plaintiff’s complaint in the present case is not that he had to drive over a speedhump, but that the seat he was using at the time he was required to do so was defective and bottomed out. That was an important principle in terms of identifying where on the line, or which side the line, this incident sat. It was submitted it was at the heart a complaint about having been provided with defective equipment by his employer. It is not a complaint about the driving of the vehicle, and there is nothing about his management or control of the vehicle which is said to be conducive or causative of the incident. It was submitted that put this application on all fours with the nature of the complaints that the plaintiff made in Belgrave Heights.^[36] It is not an incident, so as not to be a transport accident within the meaning of the legislation.^[37]
60. Counsel for VWA submitted the only finding open to the Court was that the incident on 22 June was a transport accident.^[38]
61. There was a sudden jolt to the spine after the plaintiff drove over the speedhump. Noting the definition of transport accident in Section 3 of the TA Act, it was submitted Belgrave Heights actually assisted the VWA and the plaintiff.
62. In Belgrave Heights, the court held that an examination of the whole of the TA Act showed that a transport accident is an incident that occurs upon a particular date and in circumstances that might be fairly described as an “incident”, as that word is used in its common and ordinary meaning.^[39]
63. It was submitted this was analogous to an incident on a particular date, which was clearly the situation in the current case.^[40]
64. Counsel also relied on Porter v Bonojero in which Eames J categorised the use of the work “incident” in Section 3 of the TA Act as identifying a discernible event.^[41] His Honour went further at paragraphs 132 and 233 to state that:

“... ‘an incident’ is not intended to embrace myriad events of jolts and jarring ... .”

65. It was submitted that, in the present case, there is an identified sudden event when the plaintiff went over a speedbump, that it went “bang”, his back crunched and he yelled an expletive, et cetera.^[42]
66. The approach taken by the courts over a long period of time has been a transport accident is one where there is a discrete event.^[43]
67. What the plaintiff did not say in Belgrave Heights was that, on any specific date in the relevant period, she was involved in any incidents, of course, aside from the one in August 2012 which the TAC accepted to be a transport accident.
68. It was submitted the difference with Belgrave Heights is that the plaintiff was alleging injury in the course of employment, which the Court of Appeal said should have been brought under the Accident Compensation Act (“AC Act”).
69. The Court of Appeal did not at any stage say it was wrong or incorrect, the separate incident in a different bus on 13 August 2012 was anything but a transport accident.^[44] The Court held that the plaintiff’s claim against the defendant was essentially a gradual process injury claim.^[45]
70. In the present case, the plaintiff clearly made the point that there was a sudden onset of pain and it was identifiable.^[46] In short, the jolting and jerking point did not help the TAC’s argument because in this case, the 22 June 2016 incident is a discrete one.^[47]
71. Counsel for the plaintiff adopted the submissions on behalf of the VWA.^[48]
72. It was submitted the 22 June 2016 is an incident directly caused by the driving of a motor vehicle thus satisfying the definition of transport set out in Transport Accident Commission v Treloar,^[49] Koutroulis v Transport Accident Commission (TAC)^[50] and Corolovski v Victorian WorkCover Authority.^[51]
73. Belgrave Heights had not changed the law. Each case has to be determined on its own facts.
74. The Court of Appeal in Belgrave Heights, and earlier on, had stated there had to be an “incident” as opposed to a series of strains. In the present case, “there is no disconnect between the driving the bus, going over the speedhump and the plaintiff being jolted forcefully or bottoming out, the seat bottoming out, because of that connection to the driving.”^[52]
75. Counsel for the VWA and for the plaintiff both disagreed with the interpretation of Belgrave Heights argued by counsel for the TAC.
76. Both counsel submitted that the Court of Appeal did not specifically determine that the incident on 13 August 2012 was not a transport accident. Instead, the Court of Appeal was required to determine whether the previous incidents of constant jostling and jerking of the driver’s seat that Ms Moore alleged occurred on a daily basis constituted a transport accident.
77. The Court of Appeal held that the issues Ms Moore was facing on a daily basis in relation to the defective seat could not constitute a transport accident. The court did not determine that the 13 August 2012 incident was not a transport accident.
78. In reply, counsel for the TAC repeated his argument that the real source of injury in the present application is not said to be driving over a speedhump, it is said to be because the seat is defective and bottoming out. So properly characterised, it is not a question of arising directly out of the driving, it is arising directly out of the defective equipment which the plaintiff has been provided to do the job.^[53]
79. Taking into account the facts of this case, the legislation and the authorities, I am satisfied the 22 June 2016 incident is a transport accident as defined by Section (3)(1) of the TA Act.
80. It was not in dispute that while driving a bus at work, the plaintiff drove over a speedhump and there was some bottoming out of his seat causing the sudden onset of lower back pain.
81. On these agreed facts, there was the necessary immediate direct proximate connection between the driving of the bus and the incident in which the plaintiff suffered injury.^[54]
82. Further, I reject the interpretation of the decision in Belgrave Heights and in particular paragraph 77 urged by counsel for the TAC.
83. While in Belgrave Heights the court found a number of unspecified events to be in the course of employment related to defective equipment, etc, and more properly be brought in a gradual process application under the AC Act, it was not saying a specific event could not be a transport accident – in fact, it did not criticise the August 2012 incident being treated as such. Like the 22 June 2016 incident in this case, there was no issue that the August 2012 incident was a transport accident.
84. In my view, in paragraph 77 of Belgrave Heights, the Court of Appeal was not being critical of, nor deciding there was not a transport accident in August 2012. It was critical of the TAC in granting leave to bring proceedings for damages in relation to a transport accident which was clearly at the end of a number of events, and was the last straw, therefore offending the principles in Petkovski v Galletti.^[55]
85. I did not consider the Court of Appeal was critical of the TAC, or that it was wrong giving a certificate because it was not a transport accident.^[56]
86. What the Court of Appeal in that paragraph was acknowledging was that there were a number of strains over the years due to the nature of the plaintiff’s employment which were not the result of a specific incident so as to be a transport accident pursuant to the TA Act.
87. As counsel for the VWA submitted, Belgrave Heights actually assists the argument that the 22 June 2016 incident is a transport accident. It is an incident that occurs upon a particular date and in circumstances that might be fairly described as an “incident,” as that word is used in its common and ordinary meaning.^[57]

(iii) What incidents can be included in the course of employment application?

88. My ruling that the June 2016 incident is a transport accident is also relevant for the purposes of the third preliminary issue: namely, what work incidents can be taken into account when considering the course of employment application under the WIRC Act.
89. This issue arose after counsel for the VWA submitted any events which are transport accidents must be excluded from the plaintiff’s gradual process application under the WIRC Act.^[58]
90. The plaintiff was employed by the employer from 2 April 2012 to 21 October 2016 (“the period of employment”).
91. By the first Originating Motion CI-22-04122, dated 3 October 2022, the plaintiff seeks leave pursuant to Section 335 of the WIRC Act to bring proceedings for damages for injuries sustained by him in the course of his employment with Peninsula Transit Pty Ltd (“the employer”) throughout the course of his employment and on 22 June 2016.
92. The plaintiff’s affidavit evidence in relation to the course of employment/gradual process application was brief referring to:
    • an attendance on his gp on 29 January 2016 with pain in his upper back and right shoulder, which he believed was due to a faulty seat in the bus he was driving at work;
    • continuing to work, but on 8 April 2016, he was driving a bus over a speed hump when the backrest on the seat gave way;
    • suffering back pain from the April incident which became worse on 22 June when, again, while driving over a speed hump, the seat gave way beneath him; and
    • suffering a worsening in back pain while at work on 4 October 2016.
93. It became apparent during lengthy cross examination there were a number of other documented incidents at work where the plaintiff suffered injury to his back, namely 18 December 2013, 28 January 2016, 4 February 2016, and during October 2016.
94. Further, when cross examined by counsel for the TAC, the plaintiff agreed that the April and June 2016 incidents were just two incidences in what were probably hundreds that happened over the course of four to five years that he was driving buses.^[59] However, later in cross examination, he denied this was the case, ultimately focussing on the 22 June 2016 incident as the main injury.
95. Counsel for the VWA submitted that the number of incidents during the period of employment which may be taken into account in this application was limited. None of the incidents which could be characterised as a transport accident could be taken into account by the plaintiff in his course of employment/gradual process application.^[60]
96. Counsel for the plaintiff did not address this issue in any detail.^[61]
97. In Keay, the plaintiff train driver had been in that role for thirty-five years, until ceasing work in 2015 because of an incident at work on 17 November 2014.
98. There were a number of incidents at work pre-November 2014 involving fatalities in late 1992 and 1993, and other occasions where there were near misses, following which the plaintiff had to take time off work because of stress and depression.
99. There was another incident in early 2009, when a truck blocked the tracks, and the plaintiff thought there would be a collision, but no one was injured. The plaintiff had had other situations like this but had always been able to get back to work. There were two other near misses in 2013 and early 2014.
100. On 17 November 2014, the plaintiff was approaching a level crossing when he saw a mother and two children in a car frantically trying to move the car from the level crossing. He was able to stop the train before he hit the car, but only just. He was extremely upset by that incident and had not worked since.
101. The plaintiff’s case was he certainly did not suffer from any psychiatric injury symptoms prior to the November 2014 accident and described the difference thereafter as “stark.” He never got over that accident and he could never stop thinking about it.
102. Leave was granted under Section 93 in relation to that accident and no complaint was made about the making of that order.
103. It was the making of the Order granting the plaintiff leave pursuant to s134AB of the AC Act to issue a proceeding claiming common law damages in respect of the psychological injury suffered by him during the course of his employment with the defendant which was the subject of challenge by the defendant in the Court of Appeal.
104. The defendant sought leave to appeal on the basis the judge erred as each of the incidents relied upon by the plaintiff as giving rise to a psychiatric injury was a transport accident under the TA Act.
105. The parties agreed the course of employment application should have been made under s335(2)(d) of the WIRC Act because the plaintiff’s case was he sustained injury arising out of, or in the course of, or due to the nature of, his employment both before and after 1 July 2014.
106. In Keay, the plaintiff’s entitlement to claim common law damages in respect of his claimed psychiatric injury was governed by the provisions of Division 2 Part 7, containing ss324 to 356F of the WIRC Act.
107. Section 326 states:

“A worker who is, or the dependants of a worker who are, or may be, entitled to compensation in respect of an injury arising out of, or in the course of, or due to the nature of, employment must not, in proceedings in respect of the injury, recover any damages for pecuniary or non-pecuniary loss except—

(a) if the injury arises from a transport accident—

(i) in accordance with the Transport Accident Act 1986 and sections 343 and 347(1) of this Act; or

(ii) ...

(b) ...

(c) as permitted by and in accordance with this Division, Division 3 or section 366.”

108. Therefore, the Court of Appeal held if the injury arises out of the course of employment, the worker must not issue proceedings in respect to that injury or recover any damages for pecuniary or non-pecuniary loss, except if the injury arises from a transport accident in accordance with the TA Act and s343 and s347(1) of this Act.
109. Further, the Court of Appeal held the terms of Section 93 of the TA Act are “unyielding”. It does not permit a person to aggregate injuries over multiple transport accidents or to make a claim for a “gradual process injury” caused by multiple transport accidents – notwithstanding the undoubted ability of the worker to make a serious injury application in respect of a gradual process injury which did not result from any transport accident pursuant to either s134AB(16)(b) of the AC Act or s345(2)(d) of the WIRC Act.”^[62]
110. As the Court stated in Keay:

“Section 37(c) of the Interpretation of Legislation Act 1984 provides that, in an Act or subordinate instrument, unless the contrary intention appears, ‘words in the singular include the plural’. The reference to ‘a transport accident’ in s 326(a) of the WIRC Act therefore includes a reference to multiple transport accidents, unless the contrary intention appears. Construing s 326(a) in its context, and having regard to the legislative purpose of s 326 as a whole, we are unable to discern any contrary intention. Indeed, it appears plain that, consistently with predecessor provisions to s 326, the legislature has determined that work-related injuries resulting from transport accidents are be dealt with in the same way that non-work-related injuries resulting from transport accidents are dealt with — namely, by reference to the provisions of the TA Act.

Next, Belgrave Heights does not provide support for the proposition that an injured worker who suffers a psychiatric injury as a result of multiple transport accidents, that occurred in the course of that worker’s employment, is entitled to make a serious injury application under s 335(2)(d) of the WIRC Act. The basis upon which the plaintiff in Belgrave Heights was permitted (indeed required) to make an application under s 134AB(16)(b) of the AC Act was that none of the episodes of jolting and jerking which contributed to her back injury could be described as an ‘incident’ as that word is used in the definition of the expression ‘transport accident’ in the TA Act — and thus the back injury suffered by the plaintiff in that case was not an ‘injury ... as a result of a transport accident’ If the episodes of jerking and jolting alleged by the plaintiff in Belgrave Heights had constituted transport accidents within the meaning of the TA Act, then, like the plaintiff in the present case, the plaintiff in Belgrave Heights would have been required to make separate serious injury applications under s 93(4)(d) of the TA Act.

...

In summary, once it was accepted that each fatality and near miss incident was a transport accident within the meaning of the TA Act, then the clear terms of s 326 of the WIRC Act meant that s 93 of the TA Act (for better or worse) governed the plaintiff’s ability to bring a common law claim in respect of those incidents. The serious injury provisions of the WIRC Act, again by the terms of the statute, were irrelevant.”^[63]

(Footnotes omitted.)

111. In my view, the named incidents on specific dates, which include –
     • 18 December 2013: going through a roundabout near Vic Roads when he felt something in his lower back and left side;
     • 28 January 2016: inability to properly adjust driver’s seat due to a mechanical fault adjust – but describes it in his affidavit driving bus with a faulty seat;
     • 4 February 2016: dropping speed and hit a bump on the road and bottomed out with driver’s seat and jarred lower back.

– are properly described as transport accidents directly caused by the driving of a motor vehicle.

112. For the reasons I have found 22 June 2016 incident to be a transport accident, the incident on 8 April 2016, which is also a similar incident, is a transport accident, and therefore cannot be included in the course of employment application under the WIRC Act.
113. As Eames J said in Porter, the intention of the legislature by use of the word “incident” is to identify a discernible event which may be the subject of scrutiny as to whether it arose directly out of the driving of a motor vehicle.^[64]
114. In my view, unlike the earlier driving incidents which are transport accidents, the minor issues driving the manual bus in October 2016 were not intended by the legislation to be transport accidents.
115. Once it is established that an incident was a transport accident within the meaning of the TA Act, then the clear terms of s 326 of the WIRC Act governed the plaintiff’s ability to bring a common law claim in respect of those incidents. The serious injury provisions of the WIRC Act, again by the terms of the statute, were irrelevant.^[65]
116. In all the circumstances, the plaintiff is precluded from including, in his course of employment application under the WIRC Act, any of the incidents which are transport accidents (April and June 2016 being the most significant).
117. It would be very difficult for the plaintiff, in these circumstances, to establish “serious injury” on the basis of minor day to day events, with more significant transport accidents excluded.

Section 93 application

118. Section 93(6) of the TA Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

119. The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a) – “a serious long term impairment or loss of a body function”. The relevant body function is the spine.
120. The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
121. The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.
122. In forming a judgment as to whether the consequences of an injury are “serious,” the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than significant or marked?”^[66]
123. Section 93 of the TA Act requires, and the Court of Appeal has made it plain in Petkovski, R J Gilbertsons Pty Ltd v Skorsis,^[67] AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz^[68] and De Agostino v Leatch & Transport Accident Commission,^[69] a judge hearing an application under s93(4)(d) of the TA Act must identify an injury that occurred as a result of the transport accident in question and then to determine whether that injury is serious in the defined sense.^[70]

The Plaintiff’s evidence

The WIRC Act affidavit

124. The plaintiff is presently aged fifty-three, having been born in October 1970. Having left school in Year 11, he worked in a range of casual jobs requiring no formal qualifications.
125. He started work with the employer as a bus driver on 12 April 2012, with most of the buses he drove being automatic and having air-suspended seats.
126. On 29 January 2016, he consulted his local general practitioner (“gp”), Dr Bradley Hull, with pain in his upper back and right shoulder, which he believed was due to a faulty seat in the bus he was driving at work.
127. He continued to work, however, but on 8 April 2016, he was driving a bus over a speed hump when the backrest on the seat gave way. He suffered back pain in that incident, which became worse on 22 June when, again, while driving over a speed hump, the seat gave way beneath him.
128. After the 22 June 2016 incident, he completed the trip, but returned to the depot and reported the incident. He applied an icepack to his lower back. He was asked to complete his shift using the same bus, but refused, and was provided with a different bus. He finished his shift that day and returned to work the following day but was again allocated the incident bus and found that the seat again gave way beneath him.
129. On 27 June 2016, the plaintiff saw Dr Rugara because of lower back pain and was referred for a CT scan, which he had that day, and believed it revealed a disc bulge at L4-5 and lower facet degenerative changes. He was prescribed Mobic initially, but due to ongoing pain, on 16 August that year, Dr Rugara prescribed Lyrica. On 31 August 2016, he was prescribed Panadeine Forte, Voltaren, Mobic and Lyrica. He also borrowed Endone from his mother, as he was finding that the prescription medication was not helping to any great degree.
130. While at work on 4 October 2016, he suffered a worsening in back pain. He was prescribed Diazepam and referred for an epidural, which was carried out later that month. He was also prescribed Tramadol in October 2016.
131. On 13 September 2017, he consulted a chiropractor at Hastings, complaining of constant back pain and also right leg pain and, later, left leg pain. He had a CT-guided lumbar spine injection on 25 September 2017.
132. On 23 July 2018, he had another CT-guided epidural injection. Later that month, he first saw a physiotherapist at Beach Street Spinal and Pilates. On 31 October that year, he consulted physiotherapists, Back on Track Physiotherapy.
133. His gp, Dr Rugara, referred him to Dr Neels du Toit, a pain specialist, whom the plaintiff first saw on about 8 August 2018 and recommended a pain management program.
134. On 30 April 2019, after the plaintiff went back to Dr du Toit with ongoing back pain, he was prescribed Palexia and medial branch blocks at L3-4 levels were recommended.
135. At that time, the plaintiff was struggling with any bending, standing or walking, and finding it hard to sit for more than ten minutes at a time without severe pain. He eventually underwent the medial branch blocks on 9 August 2019.
136. Despite that procedure, he still continued to suffer back pain and pain down his legs. He returned to Dr du Toit, who recommended he undergo a trial of spinal cord stimulator implant. He was then taking Lyrica, Mobic and Tramadol, however this was not helping alleviate his pain to any great degree.
137. On 6 January 2021, he had the right L4 and L5 epidural injections. However, later that month he returned to Dr du Toit with worsening pain.
138. On 21 April 2021, he had a trial of the spinal cord stimulator and, in the meantime, had consulted Dr Michael Best at the Metro Pain Group and had commenced taking medicinal cannabis to treat his pain levels.
139. On 2 May 2021, the stimulation lead was removed, and Dr du Toit also performed a transforaminal epidural injection. On 17 August 2021, the plaintiff had a permanent spinal cord stimulator implanted.
140. On about 20 March 2022, he moved to Tasmania, for the most part to start a new life in light of his constant feelings of frustration, anger, worthlessness and hopelessness, as a result of his injury.
141. As at May 2022, he found that, since having the implant, he managed to reduce his pain medication and then only took Panadol Osteo and Voltaren. However, he still suffered constant lower back pain radiating into both legs and also suffered numbness in his left leg down to his big toe. Two or three times a week, he suffered extremely painful cramps in his legs and feet.
142. His sleep was significantly affected by pain levels, and he tended to only get two or three hours or so of disrupted sleep at best and was completely exhausted and fatigued.
143. He had to change his posture regularly due to back and leg pain and was only able to sit or stand for twenty minutes or so without getting pain.
144. He found simple activities, such as dressing himself, difficult and relied his partner’s help to put on his shoes and socks. He even found sitting on the toilet difficult.
145. He used to do his fair share of cooking, washing and cleaning, but now relied on his partner for all this.
146. He used to drive a small Kia Rio but had to purchase a large four-wheel drive now to manage the amount of bending and try to relieve the pain while getting in and out of the car and while driving. He rarely drove, however, due to constant fatigue as a result of his pain.
147. Outside of his work, he used to enjoy taking the dogs for a walk and going on bike rides. He still owned a pushbike and occasionally tried to ride it, but still had significant pain when he did. He still tried to walk the dogs but was not able to walk them every day. He was only able to walk about 100 metres or so before suffering increased pain in his back, and he walked with a limp.
148. He was very frustrated because of his injury and found he was much more irritable than he used to be. He thought his relationship with his partner had suffered as a result and his sex drive was affected, and they argued much more than they used to.
149. He returned to work after about a week’s absence following the incident, working four hours a day on the school bus run. He ultimately ceased work, however, on about 21 October 2016, and his employment was terminated in the middle of the following year.
150. He had tried to return to work delivering concrete and gardening mulch between 2019 and 2021 on a casual basis, however that work was very inconsistent. He was then working with Coles delivering groceries on a casual basis. His hours varied and he tended to earn between $175 and $1,278 gross per week. However, he struggled to work more than a couple of hours a day due to his injuries.

The TA Act affidavit

151. In his 14 November 2023 affidavit, the plaintiff confirmed the accuracy of his earlier affidavit. His May 2022 affidavit described how he believed he injured his spine at work.^[71]
152. He had suffered chronic headaches for many years until diagnosed with an unruptured middle cerebral artery aneurysm in 2013, from which he made a reasonable recovery. He had also required regular testosterone injections for many years, but that did not affect his activities of daily living.
153. He had discussed experiencing lower back pain with his gp on 23 July 2012, after falling at home. He again fell on 23 December the following year. Although he could not recall the circumstances of this discussion, he made a reasonable recovery from this condition and was able to continue working and engaging in daily activities.
154. He experienced left knee pain on occasion, which he discussed with doctors, but he was able to manage that condition for many years.
155. He developed an injury to his right and left forearms and elbows around 2010. He submitted a worker’s compensation claim and had injections. He had made a reasonable recovery from this condition, although he continued to experience symptoms on occasion.
156. He had abstained from alcohol since 2012, as he had drunk excessively in the past, collapsing in October 2011.
157. He suffered a whiplash injury to his neck as a result of a transport accident on 30 September 2010, but he made a good recovery.
158. His back pain and restrictions, earlier deposed to, continued.
159. The intensity of his lower back, buttocks and leg pain fluctuates, but is always present. He experiences referred pain and cramping in his right buttock and thigh. The intensity of that pain and cramps is difficult to predict. He continues to experience referred pain from his lower back into his legs, and numbness into his left leg.
160. This pain and restriction continues to affect prolonged postures and gives him difficulty sleeping.
161. He continues to experience limited benefits from the stimulator. It has increased his ability to engage in his rehabilitation actively, although he is frustrated by his lack of continued improvement.
162. He is worried about the limited lifespan of the implant to six, possibly seven, years and that he is going to have to have ongoing reviews.
163. He continues to require a significant amount of pain medication to be able to cope with ongoing symptoms. While he deposed he relied on Norspan patches, he had not used them for twelve months. He takes 50 milligrams of Voltaren every day and Panadol towards the end of most days. Marijuana has been prescribed, but he cannot afford it, and smokes a joint three to four times a day.
164. He experiences side effects, such as nausea and constipation, as a result of his long term reliance on medication. He has taken Nexium for many years since the removal of his gallbladder, however that does help him cope with the side effects, he experiences due to prolonged reliance on strong prescription pain medication, such as the nausea.
165. He has had limited temporary relief after hydrotherapy exercises in Launceston, but he is unable to regularly participate in that treatment, as he struggles in a car for a long time and cannot afford the petrol and cost of the aquatic centre.
166. His ongoing back pain and restrictions and associated referred pain sustained during the course of his employment prevent him from being able to return to work. He and his husband rely on Centrelink. He is currently receiving Newstart allowance and has applied for a Disability Support Pension.^[72]
167. His attempts to return to work failed. The ongoing pain and restrictions that he continues to experience in his lower back continue to prevent him from being able to do grocery deliveries for Coles and IGA. He was not able to lift the groceries without experiencing pain, especially when loading the delivery trolley.
168. He often struggled to navigate driveways while delivering groceries, especially when there were steps involved. He worked slowly compared to his colleagues and could not complete the expected number of deliveries. He was unreliable, as he constantly required days off to recover. He attempted to change from Coles to IGA, however, encountered the same difficulties.
169. He tried to work at a bar at a local hotel but could not cope. He could not stand or bend, and struggled to complete any of the heavier tasks, such as changing over a beer keg and the amount of cleaning.
170. He is not sure what work he would be able to do in the future. He could not return to driving heavy vehicles, such as buses, due to his reliance on medication and inability to sit for long. He would be unable to tolerate the seat vibrations. He had never worked in an office and his education is limited.
171. He is unable to engage in any work that would require him to push, pull, left, bend, sit or stand for long periods. He is pre-occupied by the ongoing pain and lower back restrictions and finds it difficult to concentrate or learn new tasks. He is easily irritated and struggles to interact with others.
172. His inability to work has been devastating for him and his husband. They live in poverty. His husband required an operation that they could not afford, and they rely on the public system. He is worried how they will continue to survive together financially.
173. His ongoing lower back pain and restrictions continue to impact on most aspects of life. He is constantly surprised by his restrictions and is unable to walk the dogs, and feels he is missing out when his husband does it without him.
174. He relies on his husband to drive long distances, so he has lost his independence, especially as they live remotely.
175. Ongoing lower back pain and restrictions prevent him from being able to ride his bike, as he is unable to bend forward to hold the handlebars. He is a model train enthusiast and had a particular passion for steam trains, but his ongoing pain and restrictions in his lower back have prevented him from being able to set up the train set, as he cannot sit or work in a bent position. That had been a significant loss, as it had been a major part of his life as long as he could remember.

Plaintiff’s earnings

INCOME
Year ending 30 June	Gross income from personal exertion
2012	$13,236
2013	$50,402
2014	$50,055
2015	Nil
2016	$74,680
2017	$29,523
2018	$29,231
2019	$23,684
2020	$2,297
2021	$23,051
2022	$12,493
2023	$2,409

Cross examination

176. During cross examination, it became apparent the plaintiff suffered injury to his back in a number of other incidents at work from as early as December 2013.
177. Counsel for the VWA sought leave to further cross examine the plaintiff after a number of these new incidents – beyond those deposed to by the plaintiff- arose in cross examination by counsel for the TAC.
178. The nature of these incidents was relevant, as counsel for the VWA ultimately submitted the plaintiff is not entitled to include in his application for injury during the course of employment any incidents that are transport accidents in accordance with the TA Act.^[73]
179. The plaintiff was employed from 2 April 2012 to 21 October 2016 (the period of employment).
180. In the early months, he loved his job.^[74] He made no mention to his gp of any issue with back pain driving the bus or the seats bottoming out. He would have told his doctor if that had been a problem.^[75]
181. While back pain was noted by his gp on 23 December 2013,^[76] there was no detail of its cause. The plaintiff agreed if that had been caused by some sort of accident he would have mentioned it, because he would have wanted the doctor to know exactly what had happened and would mention it if it was suddenly caused by something he had done at work.^[77]

18 December 2013

182. An injury detail form was completed by the employer’s Suzanne Berry on 18 December 2013 at 10.44.
183. Under the heading “Injury notes,” it was reported: “Driver states that he was turning off Overton Rd... and going through roundabout near Vic Roads when he felt something in his lower back, left hand side.^[78]
184. Under the heading “Brief Conclusion,” it was reported: “Driver completed shift and apply cold pack as treatment. No further details provided regarding this injury.”
185. The plaintiff thought he just might have pulled a muscle or “something.” He completed the shift and applied a cold pack as treatment, as the form indicated ^[79]
186. He agreed this injury detail form confirmed he did not go off to a doctor “or anything like” that and did not lodge a WorkCover form. He agreed whatever happened in that incident resolved fairly quickly.^[80]
187. He did not believe he completed any “injury detail” report forms in 2015. There were no forms that related to his back in 2014 and 2015.^[81] In 2014, he broke his foot.
188. In further cross examination by counsel for the VWA, the plaintiff was taken to Dr Hajbabale’s 23 December 2013 note: “43 yo male, came with aggravation LBP, since yes.” ^[82]
189. The plaintiff did not agree back pain at that time still related to a fall 18 months earlier but also agreed that if back pain had been caused by some sort of accident at work he would have told the doctor. As at December 2013, he had not told any doctor driving buses was causing his back pain. ^[83]
190. He agreed that now his back has been injured and he had been told he has an L4-5 prolapse, he has reconstructed in his mind it was the driving of the buses. He confirmed he was blaming the buses.^[84]
191. Counsel for the TAC further cross examined the plaintiff about Dr Hajbabale’s use of the word “aggravated.” The plaintiff could not remember if he had been having lower back pain from driving buses before 18 December.^[85] He only remembered complaining about seats collapsing or bottoming out in June and April 2016.^[86] He then accepted he made at least one more complaint about seats, being in February 2016, with seats bottoming out. He could not remember what he discussed with his physio Mr Gemetzis on 8 February about back pain suffered on 4 February 2016.^[87]
192. He confirmed that it was a very frequent occurrence that he would experience problems with seats bottoming out. He frequently experienced problems with seats collapsing, and with the ergonomics of the seat, and was told to continue driving no matter what. He agreed he said that all those things exposed his back to strain throughout the course of his work, and that from December 2013 he had a problem with back pain in his lower back going down his left leg.^[88]
193. When he described the pain as “subsiding”, he meant until the next incident of the seat bottoming out or a backrest breaking or him having another awkward posture in the bus, after which the pain would flare up again. He had “been on the tablet the whole time.” He agreed there were hundreds of incidents of his back flaring up because of those awful seats: “And hundreds of incidents meaning everyone was putting in defects on buses and nothing was being done.”^[89]
194. By the word subsiding, he meant “the pain had just sort of, like, he would still work but he would come home, have a nice hot Radox bath and pretty much go to bed with a heat pack and just try and, like, totally relax.”^[90]
195. In re-examination, he had a vague recollection of the 18 December 2013 incident and the report in relation thereto. He believed the lower back left side pain went away and “just with the constant driving there are different seats on the buses and all that, it just returned.” Probably it went away a week later.^[91]

Foot Injury

196. The plaintiff was cross examined at some length about his foot injury, suffered at work in 2015.
197. The plaintiff recalled a meeting on 23 June 2016 with his manager Mr Thorn. He agreed he mentioned to Mr Thorn that he drove bus 355 the previous day, and the seat bottomed out, causing him aggravation.
198. Mr Thorn had reported that the plaintiff had had twenty-one individual days of sick leave in the first six months of 2016, and sometimes he would call in sick only an hour before the shift. The plaintiff agreed, “[y]es. If I’d woke up, I had a sore back then I just couldn’t”.^[92]
199. However, the plaintiff did not believe had twenty-one days off in that six-month period. He believed he took a few days off because of his back. He had fractured his foot the year before in the depot and thought that he may have had an amount of sick leave because of his foot. He did not agree he was a prolific reporter of injuries: “I was forever reporting buses that weren’t as – that shouldn’t cut the scratch, that shouldn’t be on the road, yeah”.^[93]
200. If he had a small niggle or a little bit of a strain, he would take care to report it.^[94] He agreed he did not remember all the matters that he reported. They were very minor, such that he could not even be confident that he would remember them all now.^[95]
201. The plaintiff moved home and started attending Hastings clinic in about mid 2015. He did not have a memory at all of telling doctors at Hastings in the second half of 2015 about back pain. He was primarily seeing doctors about his foot.^[96]
202. In further cross examination, the plaintiff agreed he was seeing physio Tim Gemetzis from April 2015 to 2016. He agreed 4 June 2015 was the first time he had said anything to him about having back pain. “WC” was noted because he had a WorkCover claim for his foot. He agreed he had LBP starting to niggle all the way to the hip/low back area, consistent with sometimes feeling niggling in his low back.^[97]
203. When Mr Gemetzis noted on 5 June the plaintiff was limping, the plaintiff agreed that the back pain then complained of was associated with his foot problems “and also the problems with again, bus seats.”^[98]
204. He could not remember when it was suggested to him that, save for two entries in October 2015 and April 2016, he did not complain to Mr Gemetzis about problems with the seats.^[99]
205. An entry on 25 October 2015 set out the plaintiff was sore through his right foot and it was radiating from his lower back. He knew that over the years his back pain “just radiates from like the left to the right. Both sides are affected.” He was also then feeling sore through his neck.^[100]
206. He denied the sitting position he had on the bus was being affected at that time because of his injured foot, “because the seat was actually broken as in you couldn’t move it as such like weight wise”.^[101] So he ended up getting a half cushion, that he “sort of like pushed” into the back of the seat more. It was a seat wedge, like a foam triangle that he would sit on to make himself more comfortable and gave him a bit of elevation. He agreed he needed the wedge to decrease the strain on his injured foot.^[102]
207. In further cross examination by counsel for the TAC, the plaintiff agreed his foot injury was placing strain on his lower back, as Mr Gemetzis noted on 3 July 2015. Lower back pain was again noted by him on 29 July, when he attended for his foot complaint. He agreed he was having low back pain in July 2015. Due to having been in a CAM boot, he was off balance.^[103]
208. The plaintiff agreed that driving buses with defective seats, with the problems he already had with his back because of his foot, was not assisting the situation at all, “but who was going to pay (his) bills?”^[104]
209. He agreed he was complaining to Mr Gemetzis about buses again in January 2016, having also complained in October 2015 and later in April 2016.^[105]
210. He agreed as late as May 2016, he was going to his treating practitioners complaining about amongst other things back pain – “Yes, and it’s still coming from my foot.” It was radiating up from his foot and was going up his leg and still to this day, he has pain in that foot from it. At that time, he thought the pain was from his foot going into his back. He thought it was coming up from his foot because of the lopsidedness of it. He agreed the injuries to his foot had caused problems with his back.^[106]

28 January 2016

211. An injury detail form was completed by the employer’s Sladjana Rakic at 9.36 am on 28 January 2016.
212. Under the heading “Injury notes,” it was reported: “The inability to properly adjust the driver’s seat due to mechanical faults has left me sitting at awkward angles resulting in soreness in the shoulder and lower back.”^[107]
213. Under the heading “Brief Conclusion,” it was reported: “Driver did a shift on a bus where the seat was unable to be adjusted due to a mechanical fault. As a result, the driver has suffered shoulder and low back pain.”
214. The plaintiff did not lodge a claim form at that time, nor did he lose any time from work or have medical treatment.
215. He advised:

“...during the course over the day you could be in six different buses and there could be 40 people working and there’s all different sized people in those seats and they’re adjusting seats left, right and centre and some of break and you’ve just got to put up with it.”^[108]

216. On 29 January, he consulted Dr Hull with pain in his upper back and right shoulder.^[109] Dr Hull described muscular upper back pain, three days, radiating to the right shoulder.

“Pt knows its due to seat defects in the bus he drives (works as bus driver) Him and colleagues mentioned for long time now but nothing done – put in an incident form.”^[110]

217. Dr Hull also noted “tender over upper fibres trapezius to mid/upper back...no spinal tenderness.” The plaintiff believed the pain was in his upper back.^[111] His lower back was not a problem at this time.^[112]
218. Ms Rakic was perhaps mistaken and should have put “upper back” in the form.^[113]
219. When next seen at the clinic on 10 February 2016, “back pain” was noted. There was no mention of what caused the back pain or whether it was upper or lower. He believed it was upper back because it was close in time to what was happening in January 2016. He was pretty confident, but it was a long time ago.^[114]
220. In an entry of 2 April 2016 where weight loss was discussed, there was also a note of “neck/back pain”, but no mention of the cause thereof. He thought “this was clarifying from the previous back in February or January.”^[115]
221. In re-examination, he explained he reported the incident on 27 January 2016 because it was another kind of injury and just to keep the company up to date with what was happening with the buses and his back and his right shoulder. The symptoms from that incident were just ongoing – “It was, like, because of the seats”.^[116] He agreed it was hard to remember this specific incident. It probably caused him problems for a couple of weeks. He could not remember specific treatment in that few weeks or the symptoms.^[117]

4 February 2016

222. An “Injury Detail” was completed by Ms Rakic at 2.29pm.
223. Under the heading “Injury notes,” it was reported: “was just dropping speed coming into Flinders. I hit a bump on the road and bottomed out with the driver’s seat and jarred lower back.”
224. Under the heading “Brief Conclusion,” it was reported: “whilst driving the driver had overcome an unexpected bump on the road which had him move in an uncomfortable position causing some pain to his lower back. Bus has been taken off the road since for mechanics to look at. The driver was asked to monitor his back for further discomfort during shift.”
225. The plaintiff agreed this incident was very like the one on 22 June that he described in his affidavit – “the company do not maintain their buses.”^[118]
226. It was not a speed hump, it was an unexpected bump on the road – a pothole. It was a sudden change in the road surface that caused a sudden jarring.^[119]
227. He agreed the form seemed to indicate that he did not go to the medical centre. He now believes he saw a doctor around February 2016 for back pain, but he just could not remember it “because it was too far back.”^[120]
228. Having been told notes of attendances at Hastings on 10 and 25 February made no reference to the February 2016 incident or back pain, and he was attending for other issues. He thought it was possible he did not see a doctor and just applied a cold pack.^[121]
229. He agreed his affidavit made no reference to a February 2016 incident and that whatever happened then was so minor he just forgot about it. He agreed the main thing that stood out in his mind was that on 8 April there was an incident when the backrest on his seat gave way. He could not remember an incident report in relation to that. He could not remember reporting it. He could just vaguely remember the seat cover breaking but not doing an injury detail form like the earlier ones. He agreed the seat rest breaking was very different to the seat bottoming out. He just could not remember putting in one of these forms for what happened in April.^[122]
230. The 4 February 2016 Ventura Incident and Investigation Form was in similar terms to the injury detail form.
231. Under the heading “Description of activity briefly describe what happened including sequence of events leading up to the actual incident”, the following was set out:

“Was just dropping speed. Coming into Flinders I hit bump in road and bottomed out with driver’s seat and jarred lower back. The day of incident was 4 February 2016.”

232. Having been reminded he told counsel for the VWA he had no treatment or time off work following the February incident, he agreed physio Tim Gemetzis certified on 11 February 2016 that he was unfit for work 8-9 February “lower back pain and leg/foot pain. Reported driving incident (@work).”^[123]
233. The plaintiff confirmed he complained of back pain at Hastings on 10 February 2016. He could not remember if that pain related to a flare-up on 4 February 2016 with the seat bottoming out.^[124]
234. When he started with Ventura, he had a full medical and his back was fine. He was a school bus driver as a casual for the first year, then in order to go fulltime, he had to go onto the track bus, which meant driving passengers and the school run. It was not long after fulltime driving started that he started to have problems with his lower back and also pain that would shift down his left leg. He had been having back problems since 2013.^[125]
235. He agreed that sort of pain caused problems sitting for long periods. Standing was not an issue because he was always in the bus driving. He had problems with things like bending and twisting his spine and lifting of weights.^[126]
236. As to the course of that pain:

“the pain like it subsided and, like, I had to continue to drive. I had to make a living.”^[127]

237. Until the next incident of the seat bottoming out, or the backrest breaking, or having an awkward posture in the bus, which would cause the pain to flare-up again – “I’d be on the tablet the whole time.”^[128]
238. He agreed he had hundreds of incidents happening of it flaring-up his back because of the awful seats. After a while, he was going to Ventura and making complaints about the buses and they were doing nothing about it.^[129]
239. He agreed that he got to the point “why do I bother putting in another incident report nothing’s changing or happening. It’s all a waste of time”. That was why he would phone WorkSafe to check the buses.^[130]
240. The February 2016 incident involved just the bottoming out of the seat. The seat had a mechanic spring loaded into it, but it just did not work. When he was sitting there it goes boom.^[131] It stays down and goes “bang”.
241. He could not remember how long he had back symptoms after that incident.^[132]

8 April 2016

242. Dr Gibbs at Hastings on 2 April 2016 noted “neck/back pain.” This was “probably driving – steering. Some buses were heavier in steering wheels like some were and some weren’t. ... [T]he older buses were the worst.”^[133]
243. Dr Rugara noted on 13 April 2016 :

“Work injury. He works for Ventura Bus Services. On 8 April 2016 he accelerated and the back support in his seat broke. He called for changeover of bus but was told to continue driving. He has since developed back pain. Has taken Panadeine Forte and seen the physiotherapist. He describes that in the past he has notified the OH&S consultant who has done nothing. He has contacted WorkSafe and at the time of the onsite inspection the damaged buses were not available for inspection. A whole spine x-ray was planned.”

244. The plaintiff confirmed this incident involved driving over “a big bump or maybe even a pothole”. He said “I think I just went to take off in the bus and the driver’s seat, just like the back of the bus seat, dropped broke and I just can’t remember that far back”.^[134]
245. He vaguely remembered he had to continue driving with no back rest.^[135] All he remembered that day was the seat breaking when he accelerated. He could not remember whether it was a pothole or something about the feature of the road.^[136]
246. He saw Mr Gemetzis on 18 April 2016 who then noted “very sore through foot, leg, lower back, upper back, etc. Reported having an incident at work where bus seat collapsed while driving... reported incident to workplace, incident report completed. Intended on applying for compensation claim”. This description of the incident was accurate.^[137]
247. He agreed he did in fact complete an incident report in relation to that incident, and agreed at that stage he was intending to make a compensation claim.^[138]
248. In cross examination by counsel for the TAC, the plaintiff agreed it was more likely what he deposed in May 2022 was correct rather than evidence he gave in court that day. He confirmed his account of the April 2016 incident. He agreed he had not deposed he had made a complete recovery from his back pain suffered in that incident, because he was saying he had had back pain ever since and it continued through to 22 June when it became worse.^[139]
249. He could not remember Dr Rugara telling him in April 2016 that he thought he suffered a prolapse at L4-5 in the April 2016 incident.^[140] He accepted that it might have been one of the things he said to him.^[141]
250. The plaintiff was taken to a “medical practitioner questionnaire – new claim”, which Dr Rugara completed on 26 July 2016.
251. In that form, the doctor noted:

“Back pain. On 13/4/16 he described that the back support of the bus he was driving had come undone and the backward force caused severe back pain. This occurred on 8/6/2016. He has sustained a disc prolapse at L4-5 level.”

252. He agreed he told Dr Rugara as was set out on the form on 8 April 2016 the back support of the bus he was driving had come undone and the backward force caused severe back pain. He ultimately agreed he described “severe” pain to the doctor as a result of that incident.^[142]
253. The plaintiff agreed the mechanism of the April injury was as the doctor described, breaking of the back support on the bus he was driving...rear or vertical force of jolting and causing injury and pain. He also agreed there was absolutely no mention anywhere of any incident on 22 June in that questionnaire.^[143]
254. The plaintiff agreed that Dr Rugara certified modified duties with lifting of 1 kilogram at waist level, and also restrictions on standing, sitting, squatting, pushing and pulling because of what had happened on 8 April 2016. He agreed that since that date, he had been having very significant problems with his back that led to the need for those sorts of restrictions.^[144]
255. In further cross examination by counsel for the VWA, the plaintiff agreed he took care to tell his physio on 18 April that the seat had collapsed while driving, because it was an unusual thing, and obviously an incident he needed to report. He could not remember telling his physio about this type of incident previously.^[145]
256. The plaintiff was re-examined on the medical questionnaire. He had never seen the document before.
257. He could not remember any incident in June if 8/6 was the date on the form.^[146] To the best of his ability when he described an incident causing severe pain it was his back on 22 June.^[147]
258. He did not have any restrictions imposed by Dr Rugara prior to 22 June. The restrictions were imposed after that incident. He had restrictions for his foot when he fractured it, but that was a different time he was injured. His low back symptoms were from when he fractured his cuboid bone. He was in a moon boot and just off balance from his walking. He was on crutches for three or four months and then a moon boot for just over four months.^[148]
259. Having been taken to Dr Rugara’s note of the visit on 13 April, the plaintiff explained he had grown sick and tired of the problem with seats on the buses. He believed he rang in anonymously. He was experiencing problems with things like the seat back breaking or the seat breaking, or things like the bottom coming out of the seats, and frequently experiencing things with the ergonomic set-up of the seat not being correct. He had to adjust his own seat each time he got into the bus.^[149]
260. He agreed that there was a problem you could not see the speedometer until it went over 100 kilometres per hour and he told the doctor about it. He had to twist his back the whole time while driving to try and see the speedometer. This was a problem with the buses the entire way through his employment, with seat rests, back support, suspensions and speedometers. Every day at work, because of the defective nature of the buses he was driving, he was exposed to strain. Incidents of bottoming out happened regularly. Incidents of back supports breaking happened regularly on all the buses. The problems with the ergonomics of the speedometer and having to twist to look at it, “it was just always there was one bus”.^[150]
261. The problems with the seats were happening all the time on the buses. He agreed the June and April incidents were just two in what were probably hundreds that had happened over the course of the four or so years that he was driving the buses. It was right over the entire bus company. “If TAC got in there and looked at all their buses, there wouldn’t be many left on the roads”.^[151]
262. The plaintiff had earlier agreed with counsel for the VWA that April 2016 incident was of so little consequence he did not even bother to put in an incident report.^[152]
263. The plaintiff agreed with the proposition “so we’ve got hundreds of incidents of that happening. And so hundreds of incidents of flaring up of you back pain because of these awful seats you had to deal with.”^[153]
264. He agreed that the 22 June 2016 incident was a big deal. He had never told any doctor that his back was exposed to strain every single day at work.^[154] He had never told the employer his back was exposed to strain every single day. Even if he had a small niggle or a bit of a strain, he would have taken care to report it to the employer.^[155]
265. He confirmed that the April and June “thing” happened hundreds of times. He confirmed it happened all the time, but then said, “not all the time, no, but I did put incident reports in, like anything that happened with a bus”.^[156] He explained, though, that an incident on the bus could be different from an injury.^[157] He then said the June and April incidents did not happen hundreds of times. He agreed if there was anything else at work that caused him to have a back injury, he would have put it in his affidavit and would not leave it out.^[158]
266. Having been taken to Mr Gemetzis’s 18 April 2016 note –

“Very sore through foot, leg, lower back, upper back, etc. Reported having incident at work where bus seat collapsed whilst driving. Noting reported incident to workplace – incident report completed, intending in applying for compensation funding.”

– the plaintiff then accepted he in fact completed an incident report in relation to the 8 April 2016 incident.^[159]

267. A call was made for that document. The employer was not able to locate any incident form and did not believe one was in existence.^[160]
268. In re-examination, the plaintiff was asked about the 8 April 2016 incident when he hit a pothole, having been reminded his evidence the previous day was he could not remember that far back and could not remember a pothole.^[161] He confirmed the actual back part of the seat broke away from the joint of the seat – the upright part of the seat came away from the seat itself. It totally came off the hinges and there would be no back at all.^[162]
269. He was asked what was the correct position, having told counsel for the VWA that he did not recall there was a feature of the roadway that caused the backrest to collapse, and also agreed with counsel for the TAC that he accepted he was driving the bus over a speed bump when the seat gave way. The true position was he did not have a recollection of it. He could not remember putting in an incident form after that incident.^[163]
270. He believed he had back symptoms following that incident. He just could not remember. His memory was that he thought he had another cold pack on his back, and that was it. He could not remember how long his symptoms lasted.^[164]
271. While Mr Gemtetzis had noted on 18 April 2016 that the plaintiff intended to make a compensation claim for that incident, he did not believe he did. He did not, because he did not think it was viable. The pain had subsided. It probably lasted a couple of weeks.^[165]
272. After the incident in April “or whatever”, he was taking Voltaren, 25 milligrams. Lyrica and Mobic were prescribed after the 2016 incident. He could not remember them being prescribed before.^[166]

22 June 2016

273. The plaintiff absolutely loved his work as a bus driver – “[m]y office was out on the road, different sceneries different days”.^[167]
274. While he could not recall being examined by Dr Lewis, psychiatrist, in October 2017, he agreed as the doctor noted that he told him the circumstances at work changed when he injured himself on 22 June 2016 while driving a public bus to Flinders on the 782. He injured himself at about 10.30am, while driving over a speedhump, when the driver’s seat of the bus beneath him “crunched”. He let out an expletive when he hit the bump and it was a very immediate, sudden and extreme pain.^[168]
275. It was not right as Dr Lewis reported the plaintiff told him he did not have any prior back injury. He had had one previously in April and actually part of the driver’s seat broke away. It was possible he forgot that incident on that examination. He was able to work full time driving buses until 22 June. He did whatever overtime was available.^[169]
276. There was an “Injury Detail” form in relation to an incident on 22 June which was reported to the employer’s Susan Berwick that day at about 1.19pm.
277. The injury notes read:

“Was driving doing 782 to Flinders. I went over speed humps at Somers and driver’s seat bottomed out after going over it resulting in jarring back. Plus when bus hit other bumps along route same thing would happen.”

278. Under the heading “Brief Conclusion,” it was reported: “bus was changed as soon as the call came through from the driver. Mechanic had a look at the seat on bus 355 when the driver brought it back. He advised Ops that the seat was perfectly fine and all he had to do was adjust the weight.”
279. It was noted the driver reported injury to Ops and completed an injury form. Ops reported seat to workshop, and workshop informed Ops that seat is in good condition.
280. The plaintiff agreed he told Professor Bittar the incident involved “severe jolting” and he told Dr Donovan that his back went “bang”.^[170] He agreed he was not exaggerating to the doctors about what he felt in this incident. It was unlike anything he had ever experienced before.^[171]
281. When he got back to the depot, he ended up on the floor for about an hour with a cold pack on his back. There was a quiet room with lounges, armchairs and “all that in there,” that he went and lay down. He asked to go home first but Suzanne would not get another driver into replace him. He went back to Suzanne to see what bus he was going into, and she said “back in the same bus” and he said “I’m not driving that”.^[172]
282. He went home and saw his doctor – Dr Rugara – a few days later. The doctor arranged for a CT of his lower back – an investigation that had not been done before, although he had had an x-ray in April of his spine. He agreed it was his understanding there was no abnormality detected.^[173] He could not remember why he had an x-ray in April.^[174]
283. When he saw Dr Rugara on 27 June, the gp recorded “back injury from bus injury on 22/6/16.” The plaintiff agreed there was L3-4 midline tenderness on examination and he was referred for a CT scan.^[175]
284. He had a couple of weeks off work entirely after the 22 June back injury. He had never had that level of time off before for a back injury.^[176]
285. On 28 June 2016, the plaintiff signed and completed most of a claim form. He agreed that after 22 June incident he thought it was serious enough to put in a WorkCover form. It was the only WorkCover claim he had put in for weekly payments or medical expenses relating to any back injury from driving the buses.^[177]
286. On the form, his injuries were described as “injured back, lower righthand L4-5 disc bulge.” He had written a description of the accident – “was driving 355 went over speed hump and driver’s seat bottomed out and I defected bus when I got back to depot”. By that, he meant he advised the employer that this was a defective bus. He asked to go home and was told bluntly no, because they did not have another driver to take over his shift, so he had to continue.^[178]
287. The incident happened at 10.18am, “because (he) was through Somers you have timeframes of what time at certain spots you have to be at.”^[179]
288. He answered “No” to “Have you previously had another injury condition or personal injury claim that relates to this injury condition?” He confirmed he had some niggles from time to time. He then said he even put a claim in on that one (April 2016) and he just continued to put up with it, so he did not even think to put on this claim form that he had had a previous injury. He agreed it was not significant enough for him to mention it (April 2016) as a prior back injury. After the 22 June 2016 incident, he requested modified duties to be given a different bus.^[180]
289. After two or so weeks off, he asked to be made part time. He was at work for fourteen or fifteen hours a day and “they could work you right up to eleven hours and fifty-nine minutes, and then you would have a ten-hour turnaround to come back again.” It was just getting too much for him, so he requested to go on light duties such as on a school bus.^[181]
290. Having been told he was going to get a new bus if he went back to Hastings, he got back there and was given the oldest bus on the system, which was also a manual, which did not help with his back.^[182]
291. He signed a claim for impairment benefits on 29 September 2020, typed by his lawyers based on what he told them. He understood he was making a claim for a lump sum benefit for spine and psychological.^[183]
292. He wrote the date 22 June 2016 in response to the question – “Did the injury or condition occur on a particular date or over a period of time?” He left blank “over a period of time while driving bus”. He agreed that if he believed the back injury was something that happened over the course of weeks, months or years as opposed to this event in June, he would have written that in the box.^[184]

Post 22 June

293. In further cross examination by counsel for the TAC, the plaintiff said exactly the same thing (as on 22 June) happened on 23 June, but it was with another bus when the seat bottomed out: “Crunching and all that. There was just no spring”.^[185] He agreed during the driving he drove over a hump or a pothole or something, and the seat bottomed out. It agitated his back pain even more so.^[186]
294. However, in re-examination, the plaintiff said the pain on 23 June, “was still niggling and all that” but he had to go to work. His symptoms were just in his lower back. That day he was driving an old bus and the seat had bottomed out. His symptoms from the day before were “just the same”.^[187]
295. After a couple of weeks off work, he then lasted about 6 weeks as a casual because he went from his automatic bus to a manual bus and changing of gears was agitating his back even more. He stopped working on 21 October 2016.^[188]
296. He recalled an exacerbation of back pain when shifting gears on 4 October 2016. He was given a manual bus, and while changing gears that agitated his back again. It made it worse – “Yeah, just try and change the gears.”^[189]
297. In re-examination, he could recall a problem with the gears on the bus on 4 October. He did not put a claim in for this because he thought this was part of it – “with the first claim I just thought this claim was to cover anymore ongoing health, like, medical health.”^[190]
298. As at 11 October 2016, when driving the bus, the fact the odometer was only visible when it was in the range of 100 kilometres meant he had to lean sideways to see it, making his back worse.^[191]
299. Again, the need to drive a manual, and changing gears, aggravated his back on 20 October 2016. As his gp noted: “Back pain, gave a school bus with manual gears yesterday which made the pain come back.”^[192]
300. Before the 22 June 2016 incident, after which he became casual, the plaintiff was working anything up to 40 hours a week. When he went casual, he was working about 15 hours a week.^[193]
301. Prior to his injury, he earned about $1,300 gross per week. He believed he was earning around $75,000-$77,000 in 2016.^[194]
302. As Dr Rugara noted on 25 October, the plaintiff “has not been able to secure a bus with automatic transmission so has not worked since Friday last week.” He also noted on 2 November 2016 that Ventura had taken the plaintiff off the roster indefinitely because they could not secure an automatic bus for him to drive.^[195]
303. Even if the plaintiff had been provided with an automatic bus, he would still have only been able to do 15 hours a week because of the damage that had already been done to his back. He just could not cope with it anymore.^[196]

Symptoms before and after 22 June

304. In re-examination, when asked whether there was any difference in his symptoms following the 22 June 2016 episode compared to earlier episodes, having initially answered “No, that incident on 22 June that literally just arced my back well and truly and...well as in experienced a lot more pain than what (he) had ever experienced before.” He agreed he had said there were no different symptoms after June but was now saying it arched his back and it was a lot worse:

“Different symptoms – it was – when the seat bottomed out on me, just the forces of that – like, the seat like hitting on the bottom – the driver’s, like, floor-well area, when it bottomed out just – like, literally I just felt this jarring you know straight up my lower back.”^[197]

305. The seat had not bottomed out to the point where it hit the floor before, it just went down. It did not hit the floor, it just took a while to come back.^[198]
306. He then agreed there was a change in his symptoms after this incident. There has been an alteration and progression till now. He has found that he has advanced osteoarthritis in his lower back. He just felt that it was just getting nowhere, “like, you put a defect on a bus and they just weren’t fixing it”.^[199]
307. Since the 22 June 2016 incident, he just cannot stand – “it’s just got worse, it’s like if I try to walk and walk anywhere it’s I’m arcing, like, throughout the back”.^[200]
308. He only lodged a WorkCover claim form following the 22 June incident because that was when the major accident occurred for his spine.^[201]
309. He nominated 22 June 2016 as the incident date in his impairment benefit application because that is the day he injured his back.^[202]

Post-incident treatment

310. An epidural injection had not been discussed with him before he knocked off work. He started trials on different things to stop the pain that he was copping. He had tablets until that stage and was still trying to walk. He had chronic sciatica in his legs which caused him to end up in tears.^[203]
311. From the end of 2013, he was mainly on Lyrica just to try to stop the pain. He could not take it while driving the bus. He then thought he was taking Lyrica from 2015.^[204] He thought Hastings prescribed Mobic or Lyrica. He just could not remember that far back. It was 10 years ago.^[205]

Work post-incident

312. In 2018, he moved to Corowa NSW for 10 months. During that time, he worked part time as a console operator at a Shell Service station, ceasing in February 2019. Just standing took its toll on his back and he was getting sciatica through his legs.^[206]
313. He then came back to Melbourne and got a job at Two Bays in August 2019 for a couple of months as a part time casual truck driver delivering garden mulch, working on average 20 hours a week. He worked for a couple of months and then the work ran out. A bit later, he worked there again for three or four months, and then for the last time in August 2021 for two months. He stopped because work ran out.^[207]
314. He also drove a school bus on a part-time, casual basis for O’Shannessy’s from October 2020 to April 2021. He stopped working for them because his back “was bad.”^[208]
315. The plaintiff injured his right arm while working for Two Bays in 2021. In his August 2021 WorkCover statement, which he confirmed was accurate, he set out:

“Prior to the injury on 13 April 2021 my health was good and I was not being treated for any medical condition in particular for my right elbow......I was employed as a casual driver and usually working about 6 days a week about 40 to 45 hours of work.”^[209]

316. He made the handwritten annotations to this statement after he signed it.^[210] He only verbally told Two Bays he had a back injury. He had not had the stimulator inserted at that stage.^[211]
317. He was talking about his elbow in the statement, nothing else. It was for his elbow, not his back.^[212]
318. Working 40 to 45 hours a week was a rough estimate. It was probably about 35 hours. He was driving cement out to the customer’s premises, and he was operating a cement mixer. A lot of work was done from ground level. He had to reach up and clean out the chute. He strained his elbow trying to push the concrete back.^[213]
319. He was driving the truck other than the periods cleaning out the cement chute.^[214] For much of the time he was driving “just a small little tip-truck.” He delivered mulch and concrete.
320. While he said in his statement he was constantly using his hands for numerous tasks and had to do bending and constant movement when not driving, he could not remember that. “It was just mainly just the trucks were automatic. (He) had to bend or whatever, just to pick stuff up off the truck, as in bending, like moving, dragging, like a trowel sort of thing, just to scrape the concrete down the truck.”^[215]
321. He agreed he did not say in his statement that he had any difficulty doing that work until the time he hurt his elbow. Had he not gone to Tasmania, if the work had not dried up, and he had not hurt his right elbow, he would try to still be there and do what he could. He had to grin and bear the pain. “Someone had to pay the bills.”^[216]
322. He told his employer at Two Bays that he had problems with his back and could not lift over 5 kilograms.^[217] He wore a back brace when working.^[218]
323. When asked how he could say in the statement that he was not having any treatment as at August 2021, when he had had the trial of the stimulator and various other procedures, the plaintiff explained that he had some improvement with the stimulator going in. First of all, he had been able to go off Norspan because his pain was reduced, and he used a lower range of medication. He did not mention the stimulator because he thought the treatment in the statement only related to his elbow.^[219]
324. The plaintiff started work at Coles in Rye in about November 2021 as an online delivery driver. After about 3 months, he effectively transferred his employment with Coles to Tasmania and worked there through until April 2022.
325. In his job application for Coles dated November 2021, he ticked “No” to any existing medical conditions that would affect his ability to perform required tasks, because after the stimulator was put in his back he was starting to feel a lot better. The workplace knew he had a stimulator.^[220]
326. He had answered “No” because he was “giving it a go, like any normal person would try and do after an injury, like an accident, work accident.” He was trying to just like make a living as well.^[221]
327. While he said on the application form he was willing to accept other jobs, he actually applied for online driving.^[222] While the grocery crates could weigh up to 11 kilograms, the groceries were on a trolley. When asked if he was confident he could do the job with the state of his back, he said he was “willing.” He tried to do whatever he could, workwise, to try and continue to earn an honest living.^[223]
328. While working at Coles in March 2022, he injured his knee.
329. Dr Ting in Tasmania provided him with a certificate in relation to his knee injury in March or April 2022, which set out the plaintiff’s various tolerances. It ended with a likely time frame for a return to pre-injury duties in two weeks. ^[224]
330. The plaintiff’s next job was in August 2022 at IGA as a grocery fill. He lasted only six weeks because of his back.^[225]

Lay evidence

331. The plaintiff’s husband, Dean Barnes, swore an affidavit on 14 November 2023.
332. As at November 2023, he and the plaintiff had been in a relationship for about three years and married in March that year. They had been friends for over twenty years before entering into a relationship.
333. He confirmed seeing the plaintiff continuing to experience significant pain with lower back restrictions, problems with sleep, and being constantly tired. He had seen the plaintiff rely on significant medication. The plaintiff had problems sitting for long periods and driving, and Dean did the majority of driving.
334. The plaintiff was not able to complete many of the heavier household tasks, having previously been an active person who shared these tasks.
335. They care for two dogs, which the plaintiff can no longer walk. The plaintiff feels left out as Dean walks them, as that is something they used to enjoy together.
336. They were limited in what they could do. The plaintiff was not able to walk on uneven surfaces, and walked slowly, and struggles to keep up with him.
337. He observed the plaintiff’s injuries continue to have a significant impact on him.

The plaintiff’s medical evidence

Treaters

Dr Amanda Singer, chiropractor

338. Dr Singer reported in January 2021 that the plaintiff had been a patient of Hastings Chiropractic and Natural Health since 13 September 2017, having presented with lumbosacral pain along with referred right posterior thigh pain that later commenced on the left as well.
339. The plaintiff first injured his low back on 22 June 2016 when he drove over a speed hump at work and the bus seat gave way, which resulted in him experiencing immediate low back pain.
340. Prior to this injury, the plaintiff stated he did not have a previous history of low back pain, so it would be considered his current condition was based on a reaggravation of a previous injury. It was also reasonable to conclude his current condition had a direct correlation to the injury sustained as a result of his previous employment, considering that the pain commenced immediately after the driving over a speed hump at work and the bus seat giving way.
341. The plaintiff’s medical condition was materially contributed to by the injury because he had no previous low back pain or symptoms prior to sustaining this condition.
342. At that stage, she was treating him for joint dysfunction at L5‑S1 which was exacerbated by a disc bulge at that level, along with dysfunction in the right sacroiliac joint.

Dr Neels du Toit

343. Dr du Toit first saw the plaintiff on referral from Dr Rugara in August 2018. He provided numerous reports from August 2021 until December 2023.
344. The history was that the plaintiff injured his lower back in 2016 when his bus hit a speed bump that created a direct axial impact to his seat. In the plaintiff’s words, his seat bottomed, and he had an acute onset of lower back pain.
345. Pain was further exacerbated a few months later when driving an old bus on a difficult route. He stopped work as a bus driver in October 2016.
346. The plaintiff denied any pre-existing lower back pain.
347. As at August 2018, the plaintiff’s medications included Lyrica, Mobic, Tramadol, and occasional marijuana. A recent epidural had been performed at L4‑5 that gave him significant short-term relief in back, buttocks and leg referred pain.
348. A June 2018 CT scan showed severe bilateral L4‑5 facet joint arthritis, and as a result lytic spondylolisthesis at that level. That was causing severe bilateral L4 foraminal narrowing. There was also a central disc bulge at that level causing mild central canal stenosis.
349. At that early stage, he thought the plaintiff had somatic back pain exacerbated with the work-related injury due to L4‑5 facet joint arthritis and bilateral L4 foraminal narrowing and he had overriding neuropathic pain.
350. He requested WorkCover approval for a pain management program by letter dated 16 October 2018, and followed up on 30 April 2019.
351. Dr du Toit also suggested consideration of medial branch blocks, and prescribed Palexia 50 milligram slow release.
352. As of May 2019, he thought as a result of chronic back, buttock, and leg pain, the plaintiff was severely affected with activities of daily living, specifically bending, standing, and walking, with reduced postural tolerances.
353. As a result of his pain presentation, the plaintiff had been unable to perform his usual duties working as a bus driver due to severe pain on prolonged sitting.
354. The prognosis was then guarded.
355. In July 2019, he thanked Advance Healthcare in St Albans for taking the plaintiff for a comprehensive multidisciplinary pain-management program.
356. On 9 August 2019, he carried out a bilateral L3‑4‑5 medial branch block.
357. In September 2019, he requested the plaintiff be considered for a trial of implantable pain therapy. He was then waiting for approval to have a trial of spinal cord stimulation. He then thought the plaintiff had exhausted all treatment options. The blocks were negative to improve his pain in the immediate post-intervention period, and he had also tried various pharmacological measures that were not effective to manage his pain.
358. He then thought the plaintiff was prepared and ready to consider a trial of implantable pain therapy. Current medication included Lyrica, Mobic and Tramadol.
359. The plaintiff denied any pre-existing lower back pain. He denied any pre-existing injuries to his lower back. Therefore, Dr du Toit thought his current pain presentation was still a direct result of the injury while driving a bus in 2016.
360. He confirmed his suggestion of a trial of a stimulator.
361. His colleague, Dr Guy Buchanan, carried out right L4 and L5 transforaminal epidural injections in January 2021.
362. As of November 2021, the plaintiff was 12 months post spinal cord stimulator implant to treat his severe and persistent ongoing back and leg pain. The programming of his device was still being optimised, and his pain was somewhat up and down, but overall improved. The plaintiff had managed to return to work, although he was looking for a job change that would not involve such long hours which may be contributing to his current pain levels.
363. He suggested it was very important at that stage that the plaintiff engage in an active exercise-based rehabilitation program, guided by a physiotherapist, and he suggested a further ten sessions of physiotherapy.
364. As of April 2022, the plaintiff continued under his care for chronic neuropathic back, buttock, and leg pain, noting the plaintiff first injured his lower back in 2016 while driving a bus, and as a result of that pain had not been able to work as a bus driver since then.
365. As a result of ongoing chronic neuropathic pain, the plaintiff had no capacity to return to pre-injury duties working as a bus driver. His current work capacity was reduced to no lifting, pushing, or pulling, and no prolonged standing or sitting for more than half an hour.
366. He was therefore supporting the plaintiff’s application for a disability support pension, given he had no capacity to return to pre-injury duties, and that incapacity would remain indefinitely.
367. In his June 2023 report, he noted he last saw the plaintiff on 21 June 2022, when the plaintiff was still reporting a significant improvement in back, buttock and leg pain with spinal cord stimulation. The plaintiff had a concern about right buttock pain and thigh cramping at times. They had been able to control those symptoms with the stimulation.
368. The plaintiff’s current pain presentation was still a direct result of the injury.
369. The stimulator required frequent review to perform programming and assess the benefit of treatment, from which the plaintiff would continue to benefit. The lifetime of a stimulation system is six to seven years, and at that point the battery generator may be replaced.
370. The plaintiff’s prognosis was very poor for return to pre-injury duties. He had been severely impacted by chronic pain impacting his ability to participate in social, domestic and recreational activities.
371. In December 2023, he reported that he had spoken to the plaintiff at least three times since June 2023. The plaintiff reported ongoing pain to the back, buttocks and legs and during the last review, specifically right back, buttock and leg referred pain.
372. The pain was not adequately managed by the spinal stimulator. He suggested the plaintiff consider a right L4 plus L5 transforaminal epidural injection to further improve L4‑5 disc mediated pain.
373. The current pain presentation is still a direct result of the injury that occurred in 2016 with the employer.
374. The plaintiff is severely impacted by the injury in regards to social, domestic and recreational pursuits. He can only perform these activities at a much lower level than before and is severely restricted to enjoy these types of activities.

Timothy Gemetzis, physiotherapist

375. Mr Gemetzis’ clinical notes from 1 April 2015 to 9 November 2016 were tendered.
376. In his January 2021 report, Mr Gemetzis noted the plaintiff attended Beach Street Spinal and Pilates initially on 26 July 2018, having had WorkSafe funding reinstated for his workplace injury from 2016.
377. He thought it was difficult to comment on the relationship between the plaintiff’s injuries and his workplace accident, as the plaintiff did not elaborate on the mechanism of the incident. However, it was reasonable to suggest that the injuries evident were significant, and related to a physically traumatic event, and do not occur without an incident.

Dr Michael Best, general practitioner

378. The plaintiff was referred to Dr Best by his gp for consideration of medical cannabis in January 2021, and a trial treatment of a compounded formulation containing medical cannabis had been commenced.

Mr David Field, clinical and health psychologist

379. Mr Field prepared a report dated 12 March 2021 to advise the insurer of the plaintiff’s fitness as a candidate to proceed to a neuromodulation trial.
380. He concluded the plaintiff met the criteria, and as such was psychologically prepared and suitably informed for a spinal implantable therapy trial.
381. On 17 August 2021 a spinal cord stimulator implant was carried out.

Mrs Jo Rankin, physiotherapist

382. Mrs Rankin reported in October 2021 having seen the plaintiff 10 weeks post-spinal cord stimulator implant.
383. The plaintiff advised his pain had been up and down, and had been more noticeable over the past couple of weeks since a programming change of the device, and he had now been changed back to a previous program.
384. Of note, the plaintiff had also started a very intensive new job over the past 10 days involving up to 13 hours a day of work, which he reported as whipper-snipping, mowing, driving and heavy lifting. They had discussed that this was not a good way to manage his pain or general lifestyle, as it was impacting on his stress levels and sleep as well as his pain. The plaintiff was currently looking for some other form of work.
385. As far as the stimulator was concerned, she was happy for the plaintiff to pretty much carry on as normal, although it was advisable to avoid lifting very heavy weights.

Investigations

386. The plaintiff had a spinal x-ray on 13 April 2016. Under the heading “Clinical indications” it was noted:

“Back support of bus patient was driving broke on acceleration. Midline tenderness in thoracic and lumbar spine. ?Disc injury.”

387. In the lumbar spine, pelvis, and hips, disc and vertebral body heights were maintained. There was no spondylolisthesis, and no vertebral body or transverse process fracture detected.
388. On 27 June 2016, a CT of the lumbosacral spine was carried out. The clinical information included right lower paraesthesia and pain, ?disc injury. It was reported there was a disc bulge at L4‑5 level, and lower lumbar facet degenerative changes were demonstrated.
389. On 31 October 2016, the plaintiff underwent a CT epidural injection, the clinical notes indicating L4‑5 disc bulge.
390. The plaintiff had a CT of the lumbosacral spine and full spine x‑ray on 1 June 2017.
391. It was reported there was extensive arthropathy of facet joints at L4‑5 and to a lesser extent L5‑S1 levels which appeared slightly worsened since the previous study (27 June 2016 CT). Mild annular disc bulge at L4‑5 was essentially unchanged. Sacralisation of left-sided transverse process of L5 with pseudo articulation with ala of sacrum was noted.
392. The plaintiff had a CT-guided lumbar spine injection on 25 September 2017.
393. The plaintiff underwent a CT of the lumbar spine and whole spine x‑ray on 20 June 2018. In terms of the lumbar spine, it was reported there was advanced bilateral L4‑5 facet joint osteoarthritis and there was degenerative anterolisthesis, severe bilateral L4 foraminal stenosis, moderate diffuse disc bulge at L4‑5 causing a mild degree of canal stenosis, and no significant compression fracture.
394. The plaintiff had a CT epidural and nerve-root injection on 23 July 2018.
395. The plaintiff underwent a CT of the lumbar spine on 8 October 2020. Bulging of the L4‑5 disc in association with a grade 1 spondylolisthesis due to facet joint arthropathy was reported.

Plaintiff’s medico-legal evidence

Dr Justin Lewis, consultant psychiatrist

396. Dr Lewis examined the plaintiff in October 2017.
397. The plaintiff advised he started work with the employer in January 2012. He particularly enjoyed the nature of his work, identifying himself as a patient driver who enjoyed being able to provide assistance to disabled and elderly passengers.
398. The plaintiff advised that his circumstances at work changed when he injured himself on 22 June 2016 while driving a public bus to Flinders (782), at the time of injury. At about 10.30am, he drove over a speedhump, when the driver’s seat of the bus bottomed out beneath him and as a consequence his back was “crunched”, causing immediate lower back pain.
399. He advised he had no history of back injury prior to this incident.
400. The following day, despite the plaintiff’s complaints, his employer simply placed a sticker on the dashboard of the bus he had been driving the previous day to indicate the bus was defective. The plaintiff stated he had no option but to drive the bus. The seat bottomed out again on the way to Flinders. When he returned to the depot, he initiated a WorkCover claim and his manager told him he would not get it approved.
401. The plaintiff returned to work undertaking light duties, which were to include more frequent breaks and a reduction in working hours to four a day. He was supposed to be provided with an automatic bus, but that never happened. He was also given bus routes which were physically challenging and demanding. The employer offered to provide him casual hours, which the plaintiff interpreted as an underhanded attempt to manage him out.
402. The plaintiff stated that he was completely incapacitated in a work sense by October 2016 in the context of chronic pain and physical restriction.
403. Dr Lewis diagnosed an adjustment disorder with some depressive features. The plaintiff would meet the criteria for a chronic pain disorder secondary to a medical condition.

Dr Bruce Love, orthopaedic surgeon

404. Dr Love examined the plaintiff in July 2018, having earlier provided an IME Assessment in November 2017.
405. He considered the incident of 22 June 2016 was still materially contributing to the plaintiff’s back injury, complaints of pain and the need for medication and treatment. At that stage, the plaintiff did not have any work capacity.
406. When Dr Love first saw the plaintiff, he had expressed some optimism that his condition might be modified with the passage of time, however it appeared that he had deteriorated rather than improved. He remained extremely pessimistic about the plaintiff’s short-term future and thought he might benefit from a more intensive inpatient rehabilitation program, including pool therapy and daily physiotherapy.

Dr Peter Blombery, consultant physician

407. Dr Blombery examined the plaintiff in May 2023.
408. He noted that in June 2016 the bus the plaintiff was driving had a defective seat and, indeed, over the preceding six months he had some back pain, in particular, when the backrest on his seat gave way on 8 April 2016. That was mild, however, until 22 June 2016 when, while driving over a speedhump, the seat bottomed out and did not spring back up again. The plaintiff said he went down hard and had pain in his sacroiliac area.
409. The plaintiff asked for a different bus to use the following day, but there were none available. Because of persistent pain, he saw his doctor on 27 June 2016.
410. On examination, the plaintiff complained of ongoing pain in the lower back and on both sides of the spine, extending to the groin and down his legs. He rated pain, overall, as 7/10.
411. Medications then included the opiate painkiller, Palexia, which the plaintiff had been taking for two years, as well as a Norspan 10 patch (two per week), Valtrex, Nexium for his stomach, medication for high blood pressure, half an aspirin, and Phenergan to help him sleep.
412. The plaintiff last worked in October 2016. He then tried a few different jobs, including working at an IGA on the checkout, but found his back pain prevented him from putting stock away, which he was often asked to do. He occasionally did some work for Coles, delivering groceries on a casual basis.
413. The plaintiff advised Dr Blombery he needed help with personal hygiene and daily activities.
414. The plaintiff’s past history included high blood pressure, two brain aneurysms, a cholecystectomy, appendectomy and tonsillectomy.
415. As the examination took place over Zoom, it was difficult to assess the plaintiff, although he appeared to be only able to flex his lumbar spine to about 10 degrees.
416. Dr Blombery noted the plaintiff’s subsequent treatment and the implant resulting in significant improvement in his pain, although he still had quite marked pain and required high doses of the opiate Palexia.
417. He thought the plaintiff’s recovery was poor and that it was very unlikely there would be any significant change in his level of disability. It was possible there may be deterioration if the stimulator leads moved or it became less effective.
418. The pain that the plaintiff experienced was caused by aggravation of pre-existing degenerative changes of the lumbar spine as a consequence of the June 2016 incident and earlier in 2016. There was a component of pain syndrome present, where there was central sensitisation, which often complicated underlying degenerative changes in the lumbar spine, resulting in a more marked experience of pain than would otherwise be expected.
419. The plaintiff’s current condition was still significantly contributed to by his employment.

Dr Amanda Sillcock, occupational physician

420. Dr Sillcock examined the plaintiff in May 2023.
421. The plaintiff told her he hurt his back on 22 June 2016. The seat in the bus was faulty, and although he reported it several times, it was not fixed. It bottomed out when he went over bumps and his back became very sore. He returned to the depot and put a cold pack on it.
422. He thought it would be alright the next day, so he went back to work and was given the same defective bus, so he told them to give him another one or he would go home. He submitted a worker’s compensation claim that week.
423. The plaintiff said he worked a little longer, but then said he was tricked into going onto casual employment rather than working full time. His hours were progressively reduced, and he was told he would be given a school run with the new bus, but was again given an old manual bus.
424. The plaintiff reported ongoing problems since the 22 June 2016 incident and having a range of treatment.
425. The plaintiff’s current symptoms were pain in the lower back radiating to the right groin and right buttock to the foot. He also had some pain into the left leg down to the foot. He said he could only walk for about 100 metres and did not drive very far. He became very stiff after he had been sitting for a while and took some time to straighten up. He had increased pain if he stood for too long. He needed some help with activities of daily living and housekeeping. He was restricted in his ability to walk the dog. He did not go out much socially, as there is not much to do where they live now in Tasmania.
426. The plaintiff was taking Lyrica, Norspan patches, but did not use them all the time; Panadol Osteo, two tablets three times a day; Phenergan for sleeping; Voltaren Rapid three times daily; and Palexia for pain relief.
427. Physical examination was limited because it was on Zoom, but the plaintiff had significantly reduced back movement in all directions.
428. She believed the plaintiff had sustained an aggravation of underlying degenerative osteoarthritis of his lumbar spine. She considered his current condition is still significantly contributed to by his employment with the employer. As he has degenerative osteoarthritis, his condition is likely to continue to deteriorate.
429. The plaintiff presented as being quite disabled in relation to social, domestic and recreational disputes. She did not believe he had a capacity for pre-injury employment due to his work-related injuries. He presented with significant disability, and she did not believe he was fit to undertake suitable employment. She considered he would be totally incapacitated for employment for the foreseeable future.

Dr Nathan Donovan, orthopaedic surgeon

430. Dr Donovan examined the plaintiff in May 2023.
431. He noted the plaintiff had ceased bus driving in October 2016, following the June 2016 injury, and had worked for short periods in roles such as ground maintenance, requiring mowing, and then at Coles in 2021.
432. The plaintiff stated that, on the day of the injury, he was driving a bus on the 782 run. He drove over a speedhump in a 40-kilometre zone and the driver’s seat bottomed out, causing him to drop heavily and experience immediate pain in the lower back. The driver’s seat was a spring-loaded seat, designed to absorb the impact of going over bumps.
433. The plaintiff stated the seat bottoming out was a fault in the seat, potentially linked to the age of the bus and his employer’s failure to maintain their buses.
434. After the bus bottomed out, he attempted to contact management using his mobile, but his calls went unanswered. At the time of the bottoming out he had passengers onboard, and given the lack of acknowledgement from management he continued to drive his route to Flinders, where he rested for fifteen minutes.
435. At the time of the injury, the plaintiff felt sharp lower back pain and recalled reaching for his back at the time. He stated his back when “bang”, noting he believed there was CCTV footage of him grabbing his lower back. Dr Davison had seen the CCTV confirming this account.
436. The plaintiff denied any pre-existing back pain or problems predating this episode.
437. The following day, the plaintiff refused to drive his own bus, as no safety or maintenance had been performed. He was provided with another bus to drive from Frankston Station. He reported working until his back was painful and he could not continue to finish his shift. He had a few days off to recover and then saw his gp on 24 (27) June 2016.
438. A week after his injury, he recalled being offered to move from full time to casual under the guise of reduced hours and to give him some reprieve for his back pain. He was also advised he had been given a new bus. He agreed and changed his employment contract from full time to casual, but he was never given a new bus, rather, a much older manual bus and subsequently was afforded significantly less hours.
439. The plaintiff struggled to drive the school bus runs from Hastings to Mornington due to chicanes and the physical stress of manually changing gears repetitively. He was promised charter work, but that never eventuated. Shortly after that he was made redundant.
440. Once ceasing work with the employer, he tried multiple jobs, but struggled due to back pain.
441. The plaintiff described constant lower back pain with chronic sciatica in both legs.
442. He had difficulty with activities of daily living and required assistance with personal hygiene tasks, and had reduced tolerances for prolonged sitting, standing, or walking.
443. The plaintiff denied a history of pre-existing symptoms of lower back or sciatica, but there was an entry at Young Street on 23 December 2013 – “came with aggravation LBP since yesterday, radiating on Lt side. No midline tenderness”. However, there was no evidence of repeat presentations for chronic back pain or investigations for such in the medical centre records.
444. The diagnosis was aggravation of lumbar spine, spondylosis with somatic pain caused by this exacerbation, complicated by development of neuropathic pain.
445. While no fracture was demonstrated on CT scan within the week following the June 2016 incident, existing lumbar spine degenerative changes were noted and disc bulge at L4-5 was evident. Noting the plaintiff had no history of chronic back pain, this existing degenerative change was likely asymptomatic and exacerbated by the incident. The chronicity of the disc bulge was not able to be determined and may be chronic, or the direct result of the axial load created at the time of the incident.
446. Given the chronicity of the plaintiff’s condition, his ongoing pain and limited response to spinal stimulator, his prognosis was poor. His social, domestic and recreational pursuits had been significantly affected by the pain and restricted function that had come from the exacerbation, and aggravation of his lumbar spine spondylosis.
447. Further deterioration of the plaintiff’s lumbar spine degeneration was likely to continue and worsening spondylolisthesis likely with further pain and disease progression. This may necessitate further surgical intervention.

Associate Professor Ilan Rauchberger, psychiatrist

448. Associate Professor Rauchberger examined the plaintiff on 31 October 2023.
449. The plaintiff reported that, at the time of his involvement in the 22 June 2016 incident, he was well in his physical and mental health.
450. He described the development of anger and depressive symptoms following the incident. He reported a partial response to a prescription of antidepressant medication.
451. The plaintiff described a significant restriction in a number of areas of functioning, mainly as a result of chronic pain and also as a result of mental health symptoms.
452. The psychiatric diagnosis was chronic adjustment disorder with depressed mood secondary to chronic lower back pain from the workplace injury.

Professor Richard Bittar, neurosurgeon

453. Professor Bittar examined the plaintiff in November 2023.
454. On examination, the plaintiff reported constant lower back pain, which was generally sharp in character. It had an average severity of 7/10, with a maximum of 10/10, exacerbated by prolonged postures and bending and twisting. He also experienced constant pain radiating down the back of both legs.
455. Past medical history was non-contributory for previous back injuries or symptoms suggestive of a pre-existing lumbar spine condition.
456. Having started work as a bus driver in April 2012, he experienced some upper back pain and right shoulder pain in late January 2016 and saw his gp but stayed at work. Around 8 April 2016, he was driving his bus over a speedhump, and the seat gave way and collapsed. This resulted in severe jolting of his lower back and the experience of immediate onset of back pain, which persisted.
457. The plaintiff’s condition deteriorated further at work on 22 June 2016, when he drove over a speedhump, and his seat again gave way. He applied an icepack and was requested to complete his shift, which he did with difficulty. The next day, he was allocated the same bus, but that had the problematic seat and he refused to work. He subsequently returned to work on light duties, however ceased work due to pain in 2017.
458. The plaintiff’s initial treatment was coordinated by his gp and included nonsteroidal anti-inflammatory medications, as well as Lyrica and Panadeine Forte.
459. His condition worsened further while at work on 4 October 2016 and he was referred for an epidural, which was performed on 31 October. He did not report any significant benefit from it.
460. The plaintiff had not worked as a bus driver since the subject incident in June 2016. He had attempted to return to work unsuccessfully in several other occupations, including as a bar tender and a supermarket worker, but had been unable to continue in those roles due to his back pain.
461. Professor Bittar detailed the plaintiff’s subsequent treatment, noting he did not report any significant change in his symptoms over the past twelve months.
462. There were no abnormalities reported in the lumbar spine in the April 2016 x-ray.
463. He diagnosed lower back pain and bilateral sciatica secondary to aggravation of lumbar spondylosis.
464. The plaintiff’s employment had been the significant contributing factor. Specifically, the two incidents which occurred at work, when his seat collapsed as he was driving over a speedhump, resulting in significant jolting to his lumbar spine, remaining a significant contributing factor to his ongoing pain and disability and requirement for treatment.
465. The plaintiff was permanently incapacitated for full pre-injury duties as a result of his work-related spinal condition. Taking into account the plaintiff’s age, education, training skills and work experience, as well as the nature and severity of the work-related lumbar spine condition, he thought the plaintiff did not have any realistic capacity for suitable employment and his total incapacity is permanent.
466. The plaintiff’s current condition is still caused by his employment and his condition is likely to remain stable in the long term.
467. He disagreed with Dr Drnda that the injuries that occurred as a result of the June 2016 incident had resolved, and that the plaintiff’s current condition was constitutional. There was no evidence that the plaintiff made a substantial complete recovery in relation to the symptoms which occurred following the June 2016 injury. Considering he was asymptomatic prior to that and had been significantly and continuously symptomatic since, there was no reasonable basis for Dr Drnda’s opinion.
468. In his January 2024 supplementary report, Professor Bittar confirmed his diagnosis related to the June 2016 incident was aggravation of lumbar spondylosis. That condition was already symptomatic as a consequence of the 8 April 2016 incident, however the plaintiff’s lower back condition was significantly exacerbated by the June 2016 incident.
469. He believed the plaintiff’s current condition was still significantly contributed to by the June 2016 incident.
470. The prognosis secondary to the 22 June incident was guarded. The injuries from that incident had a significant detrimental effect on the plaintiff’s social, domestic, and recreational activities, most likely increasing the impact of his previous work-related injury in these aspects of his life, noting it was very difficult to accurately quantify.
471. The June 2016 incident had had a significant detrimental impact on the plaintiff’s work capacity. He was able to return to bus driving after the April 2016 injury, however as a consequence of the June one, he had been rendered incapacitated for his preinjury employment.
472. Dr Kam’s opinions did not cause him to alter any of his opinions. The absence of an acute injury visible on CT scanning, as noted by Dr Kam, did not prove or even imply that such an injury did not occur.

The TAC’s medical evidence

Dr Rugara

473. Dr Rugara completed a medical questionnaire on 26 July 2016.
474. In his report to the plaintiff’s solicitors of 11 July 2018, Dr Rugara confirmed his examination on 27 June in relation to the 22 June injury and the results of the subsequent CT scan.
475. He noted there was a period of no work from 28 June to 4 August and a return to work on 5 August to 13 October 2018, with intermittent days off due to exacerbation of back pain. During that time, the plaintiff had returned to work, but informed him that the bus he was given to drive was exacerbating his back pain.^[226]
476. From 14 October 2016 to current (July 2018), the plaintiff was off work while receiving treatment for his back.
477. On 2 November 2016, the plaintiff informed him that Ventura had taken him off the roster altogether.
478. He believed the work accident on 22 June 2016 still materially contributed to the plaintiff’s back pain, injury, need for medication and capacity for pre-injury work. He believed the plaintiff’s prognosis was pending him returning to driving a suitable bus. If he was given the opportunity to drive an automatic, his functional capacity could be accurately assessed.
479. On 25 June 2021, Dr Rugara referred the plaintiff to Mornington Central Physio for opinion and management of his right elbow condition following an x-ray and ultrasound on 24 June 2021.

Dr Timothy Wood, sports medicine

480. Dr Wood examined the plaintiff in September 2023.
481. The plaintiff told him, in June 2016, he went over a couple of speedhumps at the required 20 kilometres, and on one of them his driver’s seat bottomed out, which allegedly resulted in him developing acute central lower back pain. He continued driving back to the depot. He experienced some workplace issues in reporting the incident and tried to get a different bus to drive for the next run (at odds with the company records).
482. The plaintiff attended his gp the following day and had a CT scan, and was told there were a number of disc bulges from L3 to S1. He appears to have had around a week off work and then returned. He said later that year he was tricked into changing from full time to casual at Hastings, again at odds with the company records. He was told there was a new bus, and when he arrived for his first shift he was given an old manual one, which had difficult gears. He said he did three or four shifts and finished up driving buses sometime in 2017.
483. The plaintiff denied any previous history of attending his gp with any back pain. There were, however, two entries in December 2013 (21 and 23) where the gp noted injury to the lower back on the left side, with shooting pains down the left leg, prescription of some Panadeine Forte and Voltaren, and attendance two days later with similar symptoms.
484. On 13 April 2016, the plaintiff attended his gp after reporting that on the 8^th his back support on the bus seat had broken. His complaint was of back pain, but five days later there was another consultation with no mention of any back pain.
485. Dr Wood noted the plaintiff needed help with personal hygiene and activities of daily living.
486. There appeared to have been a significant deterioration in the plaintiff’s condition over the last eighteen months or so. He could only drive locally. He had had some basic physiotherapy earlier that year, but extensive input over the years since the accident.
487. The plaintiff was in the process of applying for a disability support pension.
488. Despite no previous history of any spinal complaints, there was an x-ray of the full spine on 13 April 2016. When the plaintiff attended his gp with back pain, due to the back support of the backseat breaking, the gp reported there was midline tenderness in the thoracic and lumbar spine. There were no major abnormalities detected on those x-rays.
489. The prognosis must be guarded. The plaintiff’s condition appears to be deteriorating, despite not working for eighteen months, and extensive prior medical input.
490. Noting some work documents with which he had been provided, he thought it reasonable to conclude that the plaintiff developed lower back pain when his bus went over a speedhump and allegedly the seat bottomed out. However, there were clearly some workplace issues before this incident and different versions of the events which took place after.
491. Overall, no specific tissue diagnosis of the cause of the plaintiff’s back pain was possible, however his current diagnosis would be a maladaptive neurological pain response.
492. Noting the December 2013 injury, the visit in April 2016 and no further entries until the June 2016 incident, he thought it reasonable to presume that any back pain in April 2016 had settled by the time of the June accident. Therefore, overall, the plaintiff had no pre-existing injuries that were affecting his current presentation.
493. The plaintiff’s inability to work is due to his ongoing back and leg symptoms. The plaintiff tried further work, most recently in March, as a Coles delivery driver, during which time he was also injured. He was currently presenting as extremely disabled and applying for the Disability Support Pension.
494. In summary, the plaintiff developed central lower back pain in June 2016 driving over a speedhump. He had persisting symptoms with multiple medical interventions providing minor relief only. He presented as extremely disabled and having been unable to work for eighteen months. The challenge was determining how much was a result of the alleged injury or other reason.
495. Dr Wood reported on the 22 June 2016 CCTV footage. He noted, at 1.11 minutes, there was footage of the plaintiff going over a speedhump without any issues, but at 1.24 minutes, he went over a second speedhump (possibly at a faster speed) and it could be seen that his seat bottoms out and he appears to grimace at that time.
496. Therefore, there appears to be confirmation that the plaintiff did suffer a back injury on 22 June while driving the bus. However, he was seen to drive for a further 3.30 minutes, without any obvious impairment or pain. The following day, at the work meeting, there was no mention of him being in significant discomfort.
497. It would therefore appear that any injury sustained on 22 June was relatively minor and, under normal circumstances, would have healed within a few days or weeks.
498. Dr Wood was also asked to comment on whether the employment history was consistent with that reported by the plaintiff at the time of his examination. Overall, he thought it was consistent, although it would appear that the job with Two Bays Garden Supplies would be regarded as relatively physical, which would be at odds with the plaintiff’s alleged disability due to his lower back pain and the need for a spinal cord stimulator. It would be interesting to ascertain whether Dr du Toit was aware of the plaintiff doing physical work while requiring a stimulator.
499. He thought there was inconsistency between the symptoms and limitations reported by the plaintiff as a result of the June 2016 accident and the work undertaken by him since, including the work with Two Bays, which as reported in Dr Slesenger’s report in 2021, which would be considered relatively physical.
500. Also, the injury to the right knee while lifting shopping as part of his job with Coles would be considered relatively physical and at odds with the limitations reported by the plaintiff.
501. Dr Wood concluded there appeared to have been a significant deterioration in the plaintiff’s physical capacity which was unlikely to have any significant correlation with the June 2016 incident, having reviewed the footage, and understood the plaintiff’s employment history since then.
502. On reviewing the complete history, there must be considerable debate regarding the relationship between the plaintiff’s present incapacity and functional limitations and the incident seen on CCTV.

Dr Armin Drnda, neurosurgeon

503. Dr Drnda examined the plaintiff in October 2023. He incorporated documentation from the employer in his history of what the plaintiff told him about the June 2016 incident.
504. The plaintiff told him, on the said date, he was working as a bus driver as usual. He drove over a speedhump and his seat gave way under him.
505. The plaintiff agreed it was accurate as his supervisor recorded that he spoke to the plaintiff with the union representative and Milenko about excessive sick leave. A recent report showed something like twenty-one individual days of leave in the first six months of the year and, further, sometimes the plaintiff would only call in sick an hour before a shift.
506. The plaintiff advised his current state of leave was largely due to his foot injury. The plaintiff did not disagree with his supervisor’s comment that he was a prolific reporter of injuries. He had probably put in more reports than the rest of the depot combined.
507. There was also a discussion with the supervisor about whether the plaintiff had considered going casual to help alleviate the conditions he suffered. He asked whether there was a casual vacancy at Hastings, which he formally applied for, and was due to commence on 11 July 2016.
508. Dr Drnda then noted the various entries in the gp’s notes, including 4, 11, and 20 October 2016, with the plaintiff ceasing work on 21 October 2016.
509. In terms of medical history, Dr Drnda noted unrelated conditions and also that the plaintiff’s medical history included a significant number of attendances concerning lower back pain, starting on 31 December 2013; attendances with the physiotherapist, 14 April 2015, 17 June 2015, and 20 August 2015; an attendance at Hastings on 29 January 2016; the physiotherapist on 8 February and 12 April 2016, attendance at Hastings on 30 April 2016 and x-rays being organised at that time.
510. On examination, the plaintiff frequently displayed anger and dissatisfaction at WorkCover, and now TAC. Waddell’s signs of non-organic illness were readily positive.
511. Dr Drnda noted the radiological investigations, including a spinal x-ray on 13 April 2016, where the lumbar spine was physiologically aligned and there was evidence of osteoarthritis at L4-5 and L5-S1.
512. He concluded what was called a transport accident caused aggravation of pre-existing lower back pain on the background of significant lumbar spondylosis, particularly severe facet arthropathy (osteoarthritis). The plaintiff had a longstanding history of lower back pain dating back to December 2013 and the imaging performed on 27 June 2016 revealed chronic degenerative changes and no acute injury.
513. The so-called traffic accident caused aggravation of pre-existing symptomatic lumbar spondylosis. The injuries related to that accident would have resolved and were replaced by constitutional factors or, in other words, resolved to the state it would have been were it not for the accident.
514. He then went on to say, however, physical injuries as a result of the accident do interfere with the plaintiff’s ability to work. He is likely to be incapacitated for the foreseeable future, and is unlikely to be unable to do any work that requires repetitive bending, twisting, lifting, carrying heavy items and prolonged postures. His injuries affect his domestic activities.
515. The non transport related barriers for employment, domestic and social activities include psychosocial issues (maladaptive perception of significant disability) and intermittent other musculoskeletal issues.
516. The prognosis is probably poor.
517. Having been provided with the CCTV footage, Dr Drnda noted it displayed the plaintiff driving the bus with the seat gently bouncing as he drives. He appears to be comfortable. He drives over the first speedhump without an issue. On the second hump, there is a little bit more of a jolt, and at that moment, the plaintiff has a brief grimacing and it appears he has experienced some pain/discomfort in the region of his right hip and the lower back, as per his gesture. However, there is no seat collapse, contrary to his description of the injury.
518. After this very brief moment of discomfort, the plaintiff continues driving without stopping and appears to be comfortable again, and there is no facial expression of any ongoing pain.
519. Having seen the footage, he believed the plaintiff sustained a very minor aggravation of his pre-existing lower back condition and this aggravation would have settled in a matter of hours or days, and may not have been symptomatic beyond the moment of the jolt when driving over speedhumps.
520. The physiotherapy records essentially did not cause him to alter his opinion, which was that they demonstrated pre-existing lower back and other musculoskeletal issues. The only controversy is the date on which it was recorded the plaintiff had an incident at the workplace while driving, with the physiotherapist recording it as 18 April 2016.
521. The physical injuries as a result of the accident ceased to contribute to the plaintiff’s condition and he returned to work in 2018. However, his pre-existing lumbar spine condition caused by genetic factors, smoking, obesity and previous work-related strain had taken over and along with the other injuries and conditions unrelated to the June 2016 accident, interfere with his ability to work. He is likely to be hindered for the foreseeable future.
522. The plaintiff’s injuries as a result of the June 2016 incident do not interfere with his domestic activities, as these injuries cease to contribute to his current condition.
523. The plaintiff’s history of work since leaving the defendant was in keeping with his recovery from the June 2016 incident and was not consistent with the symptoms and limitations the plaintiff reported as being a result thereof.

Dr Adrian Kam, consultant radiologist

524. Dr Kam was provided with various radiological studies, relevantly the 27 June 2016 lumbar CT scan and other post June 2016 spinal investigations. He was not given the April 2016 lumbar x-ray.
525. He thought the pathology shown by the post June 2016 radiology was not consistent with an acute injury suffered in the accident in June. The plaintiff has degenerative change of the lumbar spine with facet joint arthropathy, which has progressed radiologically over time, to result in L4 on L5 anterolisthesis.
526. There was no evidence to indicate the changes shown by the post June 2016 radiology were caused or contributed to by the transport accident. The plaintiff had degenerative lumbar spondylosis which progressed over time.

WorkCover’s medical evidence

Dr Gary Davison, occupational physician

527. Dr Davison examined the plaintiff in July 2016.
528. The plaintiff told him that at about 10.20am on the said date he was driving through Somers and went over a speed hump in a 40-kilometre zone. The bus speed was 26 kilometres according to the footage. When he did so, he stated “the seat bottomed out and he felt a shudder of pain go up through up his back.” On the footage, he was noted to reach for his lower back at this point.
529. Having returned to the depot to complain, the plaintiff was told to drive the same bus for the remainder of the shift, but refused. He was then given a different bus and completed his shift and went home as usual. He returned to work the following day, but was once again given the same bus and the same route. It bottomed out again at 1.20pm.
530. The plaintiff presented with a five-week history of lower back pain radiating down the posterior aspect of the right thigh. He was currently having physiotherapy and taking paracetamol.
531. He had returned to work after a week and was currently undertaking four hours work per day, 2 x 2 hour driving sessions and was undertaking a school bus run at Hastings. He reported his condition had not improved.
532. The plaintiff denied any previous history of lower back problems. He described the acute onset of lower back pain as a result of the June 2016 accident. The mechanism of the injury described by him was consistent with that.
533. Dr Davison was hopeful of a resumption of pre-injury duties over the next four weeks.

Dr David Barton, consultant occupational physician

534. Dr Barton first saw the plaintiff on 12 October 2016. He re-examined him in June 2018.
535. On the first occasion, the plaintiff said he went over a speedhump slowly, but then hit a pothole. The seat bottomed out and he was aware of pain around the lower right side of his back. He continued the run for a further two and a half hours. He returned to the depot and used an icepack, and did a further two hours of driving, as he was forced to. He reported the bus as faulty and was initially asked to use it again. He was then provided with another bus.
536. The next day the plaintiff requested another bus, but was forced to use the same one. There was a sticker on it to say the weight should have been adjusted. He went over the same speedhump, and pothole, and again the seat bottomed out.
537. The plaintiff went to see a local doctor that night and subsequently was sent for a CT scan.
538. As at 12 October 2016, the plaintiff was driving for two hours in the morning and two hours in the afternoon during a normal school run.
539. The plaintiff did not believe that he was any better at all, describing constant and severe pain in the lower right side of his back.
540. There was no past history of any relevant musculoskeletal problems or injuries.
541. The plaintiff presented as someone who was clearly very angry about how he was injured and how his employer had responded poorly. Not surprisingly, he had not got better.
542. There was a considerable functional component contributing to the plaintiff’s ongoing claimed difficulties. There were several features suggesting a degree of illness behaviour, including a long history of dramatically described symptoms, lack of any clear objective evidence of any particular physical problem, the discrepancy between straight leg raising and postures noted at other times, the increasing reported symptoms with axial loading, nonanatomical sensory changes and global weakness throughout the right leg.
543. Dr Barton subsequently commented on the need for further treatment in October 2016 advising he did not believe ongoing physiotherapy could be justified. He could not see why the plaintiff could not undertake his activities of daily living regardless of treatment.
544. He would accept the plaintiff may have developed a mild soft tissue injury initially, but his current presentation was functionally based. He believed the plaintiff should be capable of returning to work.
545. On re-examination in June 2018, the plaintiff went to great lengths saying he wanted to return to work, but the company was preventing him from doing so. He got a certificate to do six hours per day, five days per week driving an automatic bus and said he did not know if he could cope with six hours. He then complained of being stuck in a loophole. The plaintiff denied any further accidents, injuries or operations that had occurred since last seen.
546. He would accept that initially the plaintiff may have had some mild soft tissue symptoms as a result of the bouncing around in the seat, but he believed the current presentation was not physically based and pointed towards a functional problem. Physically, he did not believe there was any ongoing problem related to the plaintiff’s employment and could not see any particular reason why he could not do full time normal duties driving.

Mr Roy Carey, orthopaedic surgeon

547. Mr Carey examined the plaintiff in February 2022 for the purposes of an impairment assessment.
548. There was reference only to the June 2016 incident and a history that the pain had continued to this time, but it spread.
549. Mr Carey noted the plaintiff had obtained work with Coles in November 2021 on a casual basis.
550. On examination, the range of motion observed was consistent with the plaintiff’s observed behaviour during consultation.
551. The presentation was consistent with the workplace injury. The diagnosis was aggravation of lower lumbar spondylosis with lower limb symptoms, but no radiculopathy. The prognosis was for continued discomfort into the foreseeable future. The condition was now stable and unlikely to change substantially.

Overview

552. It is accepted that an incident occurred while the plaintiff was driving a bus at work on 22 June 2016.
553. It is not in dispute that while driving a bus that day, the plaintiff drove over a speedhump and there was some bottoming out of his seat causing sudden onset of low back pain.
554. There was CCTV footage about which Dr Wood and Dr Drnda commented in their reports. As the plaintiff was not cross examined about the film which was shown in Court on Day 4, I do not propose to analyse what was shown on the film and note it did show the plaintiff reaching for his lower back and grimacing as the bus went over a speed hump. ^[227]
555. The plaintiff described the seat beneath him “crunched” when he went over the hump. He let out an expletive when he hit the hump and he experienced very immediate, sudden and extreme pain.^[228]
556. There is no dispute that the plaintiff suffered injury to his back in the incident. The consensus of recent medical legal opinion is that he suffered an aggravation of degenerative changes at L4-5.
557. Dr Drnda agreed with this diagnosis but considered any aggravation had resolved and was replaced by constitutional factors. He is an outlier in this regard, and I reject his view as it lacks a path of reasoning and ignores the plaintiff’s ongoing symptoms since 22 June 2016, which were not challenged, and have required treatment since the said date.
558. In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the transport accident is serious and permanent.
559. In Petkovski, the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused...”^[229]

Credit

560. As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:^[230]

“... the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

561. Counsel for the TAC submitted in general, the plaintiff’s evidence was “perhaps unsatisfactory”. Counsel gave the example of the plaintiff’s evidence as to the number of incidents causing strain to his back ranging from perhaps hundreds when first cross examined, then walking back from that number when cross examined by counsel for the VWA, on further cross examination on behalf of the TAC going back to his original evidence, which he agreed was all true, then in re‑examination the plaintiff sought to paint a picture where there was no problem through until 22 June 2016, when there was this sudden and dramatic incident.^[231]
562. It was submitted the fairest way the Court could deal with that evidence was that it just could not accept any of it. The four different propositions were all contradictory. The plaintiff seemed to be in agreement with whatever proposition was put to him by the cross examiner at various times. His own account of the matters cannot be regarded as very reliable, particularly in light of paragraph 6 of his affidavit.^[232]
563. It was submitted it makes sense as the plaintiff agreed, that he had ongoing pain from the April 2016 incident which worsened in June when the Court “put the whole picture together, for a man who was exposed to a highly unsatisfactory regime of equipment: effectively seats that bottom out, seats that break, seats that cannot be adjusted, seats that are requiring twist while he is attending to his employment.”^[233]
564. Counsel for the plaintiff did not address in any detail in relation to the plaintiff’s credit but asked the Court to find the plaintiff incredibly stoic and somebody who wanted to continue to work and perhaps was not forthright with employers about his preexisting problems.^[234]
565. In my view, the plaintiff was an unreliable witness who at times gave conflicting answers when asked the same question by different cross examiners. Other examples included his description of the circumstances of the April 2016 incident and whether there was a change in his symptoms as a result of any incident on 23 June 2016.
566. The plaintiff was prone to exaggeration having initially accepted there were hundreds of incidents while driving causing back strain, then denying this was the case and ultimately focussing on the June 2016 incident as the cause of his current condition.
567. While acknowledging these difficulties at times with the plaintiff’s evidence, the application must be decided on the whole of the evidence, including objectively established and undisputed facts, in particular histories given by him before this litigation was contemplated and made closer to the relevant events and clinical notes detailing prescribed medication at various times.

Pre-22 June 2016 back condition

568. Counsel for the TAC submitted that the plaintiff had significant problems with his lumbar spine, certainly commencing in 2013, set out not only in the doctors’ notes but the incident reports.^[235]
569. The absence of a report from the plaintiff’s general practitioner, Dr Rugara, who has seen him before and after the June 2016 incident, invokes a very strong Jones v Dunkel inference.^[236]
570. It was submitted “clearly” the plaintiff was experiencing lower back pain radiating down the left leg, itself highly suggestive of discal injury, before the 22 June incident, with complaints through in 2015 that have continued from December 2013 that would have caused problems with sitting for prolonged periods, twisting, bending, and lifting.^[237]
571. There was also the plaintiff’s own evidence of severe back pain in April 2016.^[238] Further, there was a clinical note of 10 May 2016 which briefly described back and neck pain just a month before the subject transport accident.^[239]
572. It was submitted the medical questionnaire completed by Dr Rugara on 26 July 2016 is a critical document. It mentions only the April 2016 incident. The description of the facts were entirely consistent with what happened in April, and matched the gp’s 13 April entry.^[240]
573. There was no mention in the questionnaire of the 22 June 2016 incident, only the incident on 8 April 2016. The restrictions in that questionnaire related also to April.^[241]
574. On this interpretation of the questionnaire, it was submitted the disc prolapse referred to in the questionnaire resulted from the April incident.^[242]
575. While the plaintiff accepted that the April incident was not “a big deal” because he did not make an incident report, he did attend his physiotherapist 10 days later, and made mention of intending to make a claim. The likelihood was he did submit an incident report.^[243]
576. It was submitted that although the VWA tried to confuse the whole back issue with the left foot fracture, back complaints were mentioned in the treatment notes in late October 2015, January 2016, and April 2016 and also mentioned in the incident reports.^[244]
577. When the plaintiff was sent for an x‑ray in April 2016, included was the clinical note “?disc injury”.^[245]
578. There was some confusion about when the plaintiff started taking Lyrica or Mobic. Whether it was 2013 or 2015, it was clearly before the June 2016 incident.^[246] Mobic was prescribed on 9 May 2016 and earlier in November 2015.^[247]
579. Considering the entirety of all the reports the plaintiff put in, his evidence was clearly he got sick of the situation with the buses and he was putting in heaps of reports, and he had dobbed the employer in to the VWA anonymously so WorkSafe would come out and have a look at the buses.^[248]
580. In summary, there were a multiplicity of traumas to the spine, with significant symptoms, before 22 June 2016. There were also later incidents that were productive of trauma and further impairment and pain.^[249]
581. It was submitted the 22 June incident was an innocuous one, having regard to the CCTV film, and that it was not possible in any satisfactory way to identify impairment consequences flowing from that incident compared to all the incidents of trauma before and after to satisfy the definition of serious.^[250]
582. As of December 2013, the plaintiff was attending a gp complaining of lower back pain, and continued to drive these buses, and continued to suffer insults. He attended his gp during 2015 and 2016, right up until a month before the accident, complaining of back pain, and he was being prescribed Panadeine Forte as at April 2016 for back pain and was sent for an x‑ray.^[251]
583. It was submitted that was all a picture of a man suffering significant problems before the incident date, and it makes his task in satisfying Petkovski very difficult.^[252]
584. Further, it was submitted the incident on 23 June was also relevant as the plaintiff had an identical incident that day and no medical practitioner had really provided any analysis of that event. There was also no mention of 23 June in the questionnaire.^[253]
585. The there were the events in October 2016 which the plaintiff said had made his back worse. The first was on 4 October when “shifting” gears aggravated his pain. He reported an exacerbation of pain on 11 October while leaning to read the speedometer on the bus and later on 19 October while driving a bus with manual gears.
586. The plaintiff was on restricted duties for a month or two before the October incidents, but it was after those that his gp regarded it as appropriate that he go off work and have an epidural injection, which had not been suggested before then. Dr Rugara had provided no explanation of this situation.^[254]
587. Further, it was submitted the medico legal opinion relied on by the plaintiff was based on a wrong history of no back pain prior to 22 June 2016, or implicated April 2016 anyway.
588. Dr Singer reported that the plaintiff stated he did not have a previous history.^[255] Dr Sillcock had no history of any previous problems, save for 23 December 2013, so her history was entirely wrong.^[256]
589. Those medico legal examiners who consider the plaintiff is totally incapacitated were unaware that he had been working.^[257]
590. Further, both Dr Blombery and Professor Bittar considered both the April and June 2016 incidents were relevant to the plaintiff’s ongoing complaints.^[258]

The plaintiff

591. When addressing the seriousness of the TAC injury, counsel for the plaintiff did not focus to a significant extent on the plaintiff’s back condition before the said date.
592. It was submitted from the plaintiff’s perspective, there were clearly incidents and episodes before 22 June, but seen in isolation, he had recovered by 22 June, according to Dr Wood.^[259]

However, counsel for the plaintiff emphasised that the plaintiff was working full time on unrestricted duties as at 22 June. He had made no request for modified duties before that date.

593. There was no evidence that the restrictions set out in the medical questionnaire dated 26 July were put into operation before that date let alone since April as counsel for the TAC submitted. If that had been the case, one would expect there to be certificates in these terms or mention in the clinical notes. There was none.^[260]
594. While a number of doctors supportive of the plaintiff’s application did not know about any back problems before 22 June 2016, their opinions could still be relied upon because the plaintiff was working full time anyway as at that date.^[261]
595. The only investigation of the plaintiff’s back before 22 June was the x-ray in April and it was normal.^[262]
596. It was submitted indicative of there being a serious aggravation on 22 June, it was the day the plaintiff named as being the date of injury for his claim for compensation, as he did in his impairment benefit claim, rather than the course of employment.^[263]
597. Following the 22 June incident, there was a worsening of the plaintiff’s back symptoms that required multiple injections, and permanent insertion of a stimulator.^[264]
598. Counsel distinguished the present case from Belgrave Heights, where the Court of Appeal described the transport accident in that case as being “the final straw.”^[265]
599. It was submitted it is not a situation in the present case where the consequences already precede the episode. This is very different; everything starts following the 22 June episode.^[266]
600. The plaintiff’s evidence is that the 22 June 2016 incident was the one that “arced” his back.^[267] There was a worsening of symptoms.^[268] He believed it was after then that he was prescribed Lyrica or Mobic.^[269]
601. Straight after the 22 June incident, the plaintiff’s employment capacity was impaired. He was no longer able to drive a manual bus. The reason he ultimately stopped work in October was because he was not coping with the fact that the employer was not giving him an automatic bus.^[270]
602. It was submitted the further incident on 23 June was not relevant because the plaintiff’s evidence was there was no change in his condition as a result thereof.^[271]
603. The plaintiff saw Dr Davison on 25 July 2016, one month after the 22 June incident, before any issues in October. He was then complaining of constant pain extending across the lower back and radiating down the posterior aspect of the right thigh. He was working 2x2 hour driving sessions a day. He was then having physio and taking paracetamol for pain relief.
604. When seen by Dr Barton on 11 October 2016, the plaintiff was still driving 4 hours a day. He had persisting symptoms since 22 June.
605. The plaintiff’s back was already compromised by October 2016.^[272] The plaintiff thought they were all part of the same thing and that is why he did not put in a claim for October.^[273]

Findings

606. While the plaintiff first complained of back pain in December 2013 the cause of which is not totally clear, he made no complaint of work-related back pain to his gp until January 2016. However, his complaint at that time was upper back pain, not his current lower back complaint.
607. While there were injury detail forms in December 2013, January and February 2016, these appear to be minor incidents, involving one day off work and requiring little treatment. There were no injury detail forms in 2014.
608. In a driver’s medical assessment form completed for work purposes on 4 February 2015, Dr Rai certified on examination, back movement was normal.
609. It is not a situation of ongoing lumbar pain since December. Back complaints in 2015 largely related to the plaintiff’s foot fracture and altered gait in relation thereto.^[274] The clinical records indicate the prescription of Mobic in November 2015 and May 2016 was for the left foot problem.
610. The 8 April 2016 incident is of more significance. When seen on 13 April, Dr Rugara noted back pain describing the plaintiff’s problems driving buses. Dr Rugara then arranged for spinal x-rays. Volatren was prescribed and it was noted the plaintiff had taken Panadeine Forte and seen a physio.
611. However, the plaintiff continued full time bus driving, with overtime when available, until 22 June 2016. The next complaint of back pain to Dr Rugara involving any bus driving was not until 27 June, although the plaintiff was seen on a number of occasions for other issues.
612. While it seems Dr Rugara is referring to the 8 April incident throughout his July 2016 questionnaire, there was no prolapse identified until the CT following the 22 June incident. The April spinal x-rays were normal.
613. The plaintiff had two weeks off work after the 22 June incident. He had never had that level of time off work before for a back issue.^[275]
614. Significantly, the plaintiff made no request for a change of or modification of duties until after 22 June. No restrictions were imposed on his work until 27 June 2016, when a WorkCover Certificate of Capacity was produced. The plaintiff’s request to drive automatic buses was first made after 22 June.
615. While the plaintiff’s evidence about the effects of 23 June was somewhat contradictory, I accept the significant injury to his lower back was suffered on 22 June and there was no relevant change in his condition the following day.
616. In any event, the plaintiff has given conflicting histories as to what occurred on 23 June. Further, when he saw Dr Rugara on 27 June, he mentioned only the 22 June incident. He did not mention anything happening on 23 June when he met with his manager Mr Thorn that day.
617. In my view, the plaintiff’s issue with the manual gears and leaning to see the speedo were just a part of his problem driving a manual, caused by the 22 June incident. The October incidents occurred when he was already on modified duties, and in my view did not aggravate his condition to any relevant degree.
618. As Dr Rugara noted on 2 November 2016, Ventura had taken the plaintiff off the roster indefinitely because they could not secure an automatic bus for him to drive.^[276]
619. The refusal to give the plaintiff a manual bus caused him to stop work in October- not any additional issues with driving a manual. His pain had persisted since the 22 June 2016 incident as Dr Barton and Dr Davison confirmed.
620. Stronger medication had already been prescribed by Dr Rugara before October 2016, after the 22 June incident. Mobic was prescribed on 4 July; on 16 August Lyrica and Voltaren, Panadeine Forte and Mobic; and in September Endone.
621. While not providing a detailed report as to the plaintiff’s pre and post 22 June 2016 spinal condition, in 2018 being aware of the April 2016 incident and the plaintiff’s subsequent problems with gears etc, Dr Rugara thought the 22 June incident still materially contributed to the plaintiff’s spinal condition.
622. Unlike Belgrave Heights, the transport accident in this case the 22 June incident was not the “last straw.”
623. For the reasons discussed below, having made a comparison of the plaintiff’s spinal condition immediately before the 22 June incident with his condition thereafter, in my view, the additional impairment is serious.^[277]

Consequences

Defendant’s submissions

624. The first submission was that one way the issue of seriousness could be approached is simply from a view that the plaintiff’s consequences in totality, irrespective of their cause, are not serious.^[278]
625. Any reliance on work was unsatisfactory. Very clearly the plaintiff had engaged in three separate periods of work with Two Bays from 2019, sometimes as a concrete mixer and at other times driving a 3‑tonne tip truck providing concrete and mulch at various sites.
626. In his 2021 WorkCover statement regarding his right elbow injury, he stated he was working 40 to perhaps 50 hours a week, involving bending and constant movement. He did not mention having any difficulty with his back doing that job. He stopped various jobs because work ran out, not because of his back issues.^[279]
627. In his application for employment with Coles in November 2021, the plaintiff indicated he was prepared to take on any form of employment. He expressed an ability to do heavy lifting.^[280]
628. The Tasmanian gp had the plaintiff pretty right for work when he examined him in 2022 for his knee. There is nothing in that report consistent with a serious back injury or necessary restrictions.^[281] It was a statement by the doctor of the plaintiff’s overall capacity, not just relating to his knee.^[282]
629. It was submitted there had to be a real reservation about any inability to drive a bus, because the plaintiff could drive a tip truck and a cement mixer. If it was said he could only do that work part-time, he had got up to 45 hours a week at Two Bays. Whoever thought he could not work as a bus driver did not know the heavy work he was doing elsewhere.^[283]
630. In his April 2021 statement relating to his elbow injury, the plaintiff said he was in good health and not requiring treatment, yet he was having the stimulator inserted.^[284]
631. The plaintiff also has described improvement since the insertion of the spinal cord stimulator. He has had good pain relief and gone off Norspan. The insertion of the stimulator itself does not make it a serious injury.^[285]
632. Dr du Toit confirmed the improvement post insertion of the stimulator. There is no report from Dr Rugara about the plaintiff’s condition worsening. Professor Bittar reported there had been no change in the plaintiff’s condition.^[286]
633. In terms of other consequences, it was submitted it was difficult to challenge a plaintiff’s complaint about pain or sleep.
634. It was hard to accept the plaintiff would have problems driving a normal car when he could drive a tip truck and cement mixer at work. It was difficult to accept he had problems with prolonged postures when he could sit for hours in those vehicles.^[287]
635. The plaintiff’s claimed interference with his day-to-day activities due to spinal pain depends on an acceptance of the veracity of his evidence.^[288] Doctors accept what the plaintiff says unless they “play investigator.”^[289]

Plaintiff’s submissions

636. It was submitted the pain and suffering consequences of the plaintiff’s spinal impairment are serious with the normal indicia. He has been unable to return to full time employment, has suffered pecuniary loss, needs ongoing medication treatment and the stimulator insertion itself was said to be serious.^[290]
637. The plaintiff was not challenged about the consequences to which he deposed. There were complaints of pain, treatment and issues with work, culminating in him ultimately ceasing working at IGA.^[291]
638. The intensity of the plaintiff’s lower back, buttocks and leg pain fluctuates, but is always present. He experiences referred pain and cramping in his right buttock and thigh. The intensity of that pain and cramps is difficult to predict. He continues to experience referred pain from his lower back into his legs, and numbness into his left leg.
639. Dr Wood mentioned a deterioration in the plaintiff’s spinal condition in the last eighteen months.^[292]
640. As a result of his back pain, the plaintiff’s back movement is restricted as a number of examiners have confirmed. He has difficulty with bending, heavy lifting etc. He also has difficulty with prolonged postures.
641. Following the 22 June 2016 incident, the plaintiff has required extensive treatment for his lower back with ongoing prescription of pain killing medication and the requirement for a number of procedures.^[293]
     • 31 October 2016: epidural injection L4-5 disc bulge (Dr Rugara referral);
     • 22 September 2017: CT guided lumbar spine injection Left sciatica Disc bulge L4/5 (Dr Rugara referral);
     • 23 July 2018: CT guided epidural injection bilateral sciatica (Dr Rugara referral);
     • 9 August 2019: bilateral L3/L4/5 medial branch blocks (Dr du Toit);
     • 6 January 2021: right L4 and L 5 epidural injections (Dr Buchanan);
     • 21 January 2021: trial of spinal cord stimulator;
     • 2 May 2021: removal of spinal cord stimulator and transformaninal epidural injection;
     • 17 August 2021: permanent insertion of spinal cord stimulator.
642. Replacement of the current stimulator is anticipated every six to seven years.
643. The plaintiff was on a prescription for Norspan patches until one year ago. He has also previously been prescribed Tramadol, Panadeine Forte, Voltaren, Lyrica, Endone, Mobic, and Panadol Osteo for back pain.
644. Before 22 June 2016, the plaintiff was able to work full time unrestricted duties. However, work restrictions were necessary after 22 June, right up until the time he finally stopped work with the employer in October. Work was “a big-ticket item.”^[294]
645. The plaintiff had a few weeks off work initially. When seen by Dr Davison a month after the 22 June incident, the only incident he mentioned was that on 22 June. The plaintiff was then working 2 x 2 hours a day and never returned to more hours with the employer.
646. Even if the plaintiff had been provided with an automatic bus, he would still have only been able to do 15 hours a week because of the damage that had already been done to his back on 22 June. He just could not cope with it anymore.^[295]
647. After leaving work with the employer on 21 October, the plaintiff’s next job was in Corowa from mid-2018, where he had problems with his back.
648. While he had three stints at Two Bays from 2019, the plaintiff did not necessarily accept that this work was heavy. He was not shovelling. He just had to put his arm up and make sure the chute was clearing.^[296]
649. From October 2020 until April 2022, the plaintiff drove buses part time for O’Shannessy, but stopped that job as it stressed his back. He then worked as an online driver with Coles. His job application for Coles was only in relation to that job and did not envisage an unlimited range of jobs.^[297]
650. The Court was asked to find the plaintiff incredibly stoic and somebody who wanted to continue to work, and perhaps he was not forthright with employers about preexisting problems.^[298]
651. The job at Coles lasted only four months because of the plaintiff’s knee injury. He then worked on grocery fill for six weeks but could not sustain the work due to worsening back symptoms.^[299]
652. The summary of earnings confirms the plaintiff has suffered pecuniary loss as a result of the 22 June incident having gone from earning $74,000 in 2016 to about $30,000 in the following two years, with an ongoing loss.^[300]
653. Further, the preponderance of medical opinion is that the plaintiff has very limited or no capacity for work as a result of his lumbar condition.
654. Dr Sillcock considered the plaintiff has no capacity for preinjury employment due to his work injuries. Professor Bittar considered he is permanently incapacitated. Dr du Toit thought the prognosis was very poor.
655. Due to his back pain, the plaintiff also has issues with his domestic life being restricted in home duties, sleep and the ability to walk his dogs. These consequences, together with ongoing pain and restrictions, were corroborated by his husband whose evidence was unchallenged.

Overview

656. The evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors).^[301]
657. The plaintiff suffers constant, fluctuating lower back, buttocks and leg pain. He also experiences referred pain and cramping in his right buttock and thigh, the intensity which is difficult to predict. Referred pain from his lower back into his legs, and numbness into his left leg continues.
658. He has described his current spinal pain to medico legal examiners in similar terms.
659. The plaintiff’s evidence about his pain killing medication regime at various times was somewhat confusing. The clinical notes are therefore of great assistance when considering his incident related treatment and confirm a significant regime of painkilling medication since 22 June 2016.
660. Before June 2016, there was one prescription of Volatren Rapid and Panadol Osteo for back pain in December 2013. The plaintiff has been prescribed Mobic before and after the 22 June incident. It was prescribed on 11 November 2015 and on 9 May 2016 for left foot pain.
661. Post 22 June 2016, Mobic was prescribed on 4 July during a WorkCover attendance for back pain. On 16 August 2016, Lyrica was prescribed for back pain. On 31 August, medication for ongoing back pain was Panadeine Forte. Voltaren, Mobic and Lyrica.
662. On 11 September, Dr Rugara noted the plaintiff was currently taking Endone borrowed from his mother. Endone tablets were prescribed on 3 October but ceased on 11 October as the plaintiff had had adverse reaction to Endone.
663. It is difficult to ascertain when Norspan patches were first prescribed but there is no suggestion they predated the 22 June incident. The plaintiff used those patches until a year ago.
664. Current medication appears to be Panadeine Forte and Volatren from histories to recent medico legal examiners. The opiate Palexia was also prescribed by Dr du Toit in April 2019 and was still required in high doses as Dr Blombery confirmed in May 2023.
665. In Kelso v Tatiara Meat Company Pty Ltd, Dodds-Streeton JA said:

“.. The 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.”^[302]

666. The plaintiff has undergone a significant number of procedures on his lumbar spine, detailed above.
667. Dr du Toit explained the lifetime of the spinal cord stimulation system is six to seven years, and at that point, the battery generator may be replaced.
668. While there was some improvement in the plaintiff’s spinal pain when the stimulator was first inserted in late 2021, presently, the pain is not adequately managed by the stimulator as Dr du Toit confirmed and he has suggested the plaintiff consider a right L4 plus L5 transforaminal epidural injection to further improve L4‑5 disc mediated pain.
669. The plaintiff has not worked on a full time consistent basis since 22 June 2016 and has been unable since then to earn in the range of $74,00 per annum as he was prior to his 22 June injury.
670. After two weeks off work, he was unable to return to normal hours with the employer working only 20 hours a week until he was taken off the roster in October 2016 as he could not be provided with an automatic bus.^[303]
671. The plaintiff was then unable to return to the workforce until 2018 when he had the job at Corowa as a driveway attendant where he worked with some difficulty. His work from 2019 involved 3 stints at Two Bays. While the job was hard at times, I accept he had to keep working to earn a living, having to “grin and bear it” as he described.
672. He told his chiropractor Mrs Rankin in October 2021 that his job involved up to 13 hours a day of work, which he reported as whipper-snipping, mowing, driving and heavy lifting. They had discussed that this was not a good way to manage his pain or general lifestyle, as it was impacting on his stress levels and sleep as well as his pain. The plaintiff was then looking for some other form of work.
673. Dr du Toit in late 2021 was also aware the plaintiff was working after the insertion of the stimulator noting the plaintiff had returned to work and was looking for a job change that would not involve such long hours which may be contributing to his current pain levels.
674. While at Two Bays, the plaintiff did some part time bus driving for O’Shannessy but struggled. He then worked at Coles and more recently, a brief stint at IGA but he could not cope due to back pain. His income has never reached the level he earned when working for the employer in 2016 before the 22 June 2016 injury.
675. I accept that the plaintiff has tried to continue working, despite ongoing back pain, due to his stoicism and the need to earn a living.
676. His back condition appears to have deteriorated significantly in the last 18 months and his employment capacity is now extremely limited by that condition.
677. A number of medico legal examiners consider the plaintiff is not fit for suitable employment due to his spinal condition. Their view of the plaintiff’s incapacity was shared by Dr Drnda, although he thought think any incapacity was related to the June 2016 incident. In his view, the plaintiff is unable to do any work that requires repetitive bending, twisting, lifting or carrying heavy items and prolonged postures and his injuries affect his domestic activities.
678. As a result of chronic back, buttock and leg pain, the plaintiff continues to be affected with activities of daily living, specifically bending, standing, and walking with reduced postural tolerances.
679. His enjoyment of a range of domestic and recreational activities continues to be affected by his back condition, as his husband confirmed.
680. Taking into account all the evidence, I am satisfied the consequences of the aggravation of the plaintiff’s lower back condition in the 22 June 2016 transport accident are serious.
681. As his lumbar pain and associated restrictions have continued for nearly eight years without significant improvement and the need for the stimulator for life, I am satisfied his lumbar impairment is long term, likely to last for the foreseeable future.
682. Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the transport accident on 22 June 2016.

---

^[1] By the first Originating Motion CI 2204968 dated 18 November 2022, leave was sought pursuant to Section 93(4)(d) of the TA Act to institute proceedings for damages in respect of injuries sustained during the course of employment.

^[2] [2023] VSCA 223 (“Keay”).

^[3] Transcript “T” 43

^[4] Asic v Comcare (2020) FCAFC 105; BC202005250 at 83

^[5] Cox v Cox [2013] VSC 318

^[6] Rigato Farms Pty Ltd v Ridolfi [2001] QSC 455; [2000] QCA 292.

^[7] T44

^[8] [2020] VSCA 240

^[9] T48

^[10] T185

^[11] T152

^[12] T202

^[13] T203

^[14] T203

^[15] T203

^[16] T204

^[17] Ansett Australia Ltd v Taylor [2006] VSCA 171

^[18] Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66

^[19] Transport Accident Commission v Florrimell [2013] VSCA 247

^[20] T205

^[21] T215

^[22] T215

^[23] [2020] VSC 633 at 12

^[24] [1996] VicRp 58; [1996] 2 VR 79 at 80

^[25] T216

^[26] T216

^[27] T217

^[28] T217

^[29] T221

^[30] T222

^[31] (2022) 68 VR 415 (‘Foursquare’)

^[32] (2004) 218 CLR 89

^[33] At 64

^[34] [2020] VSCA 240 (‘Belgrave Heights’)

^[35] T187

^[36] T200

^[37] T188

^[38] T205

^[39] At 54

^[40] T206

^[41] [2000] VSC 265 at 128

^[42] T209

^[43] T209

^[44] T210

^[45] At 47; T211

^[46] T212

^[47] T214

^[48] T215

^[49] [1992] VicRp 31; [1992] 1 VR 447

^[50] [2011] VSC 159

^[51] [2021] VCC 565

^[52] T220

^[53] T225

^[54] Foursquare

^[55] [1994] VicRp 32; [1994] 1 VR 436 (‘Petkovski’)

^[56] T193

^[57] At 54

^[58] Keay at 37

^[59] T79, T85, T115

^[60] Keay

^[61] T297

^[62] Keay at 37

^[63] At 40-41 and 43

^[64] At 128

^[65] Keay at 43

^[66] See Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140-141

^[67] (2000) 12 VR 386

^[68] [2012] VSCA 60; (2012) 34 VR 309

^[69] [2011] VSCA 249

^[70] Rowe v Transport Accident Commission [2017] VSCA 377 at 82-84; T7

^[71] T31

^[72] Dr du Toit supported this application in his report dated 29 April 2022

^[73] Keay

^[74] T99

^[75] T102

^[76] Referred to in the plaintiff’s second affidavit

^[77] T103

^[78] Incident/Injury Report and Investigation Form dated 18 December 2013 was in similar terms, including first aid and cold pack treatment

^[79] T29

^[80] T29

^[81] T30

^[82] T102

^[83] T103

^[84] T104

^[85] T119

^[86] T120

^[87] T121

^[88] T122

^[89] T123

^[90] T172

^[91] T157

^[92] T25

^[93] T26

^[94] T26

^[95] T27

^[96] T111

^[97] T105

^[98] T105

^[99] T107

^[100] T108

^[101] T108

^[102] T109

^[103] T124

^[104] T125

^[105] T126

^[106] T127

^[107] Incident/Injury Report and Investigation Form dated 27 January 2016 in similar terms. No medical treatment required

^[108] T31

^[109] T32; Dr Hull’s note referred to upper back pain

^[110] The “Injury Detail” form

^[111] T57

^[112] T33

^[113] T34

^[114] T57

^[115] T57

^[116] T158

^[117] T158

^[118] T34

^[119] T35

^[120] T35

^[121] T36

^[122] T37

^[123] T82

^[124] T128

^[125] T84

^[126] T85

^[127] T85

^[128] T85

^[129] T85

^[130] T86

^[131] T158

^[132] T159

^[133] T128

^[134] T58

^[135] T58

^[136] T59

^[137] T60

^[138] T81- a call was made to produce that document

^[139] T73

^[140] T73

^[141] T75

^[142] T75

^[143] T75

^[144] T76

^[145] T110

^[146] T168

^[147] T169

^[148] T169

^[149] T77

^[150] T78

^[151] T79

^[152] T80

^[153] T85

^[154] T112

^[155] T113

^[156] T115

^[157] T116

^[158] T117

^[159] T80

^[160] T118

^[161] T159

^[162] T160

^[163] T160

^[164] T161

^[165] T170

^[166] T172

^[167] T21

^[168] T23

^[169] T24

^[170] T38

^[171] T39

^[172] T39

^[173] T39

^[174] T40

^[175] T55

^[176] T40

^[177] T61

^[178] T62

^[179] T62

^[180] T63

^[181] T63

^[182] T64

^[183] T65

^[184] T66

^[185] T130

^[186] See the history to Dr Lewis and Dr Barton.

^[187] T163

^[188] T17

^[189] T132

^[190] T165

^[191] T132

^[192] T132

^[193] T133

^[194] T64

^[195] T134

^[196] T134

^[197] T162

^[198] T162

^[199] T162

^[200] T163

^[201] T169

^[202] T173

^[203] T135

^[204] T135

^[205] T136

^[206] T17, 137

^[207] T137

^[208] T19

^[209] T138

^[210] T173

^[211] T173

^[212] T139

^[213] T140

^[214] T141

^[215] T142

^[216] T142

^[217] T142

^[218] T145

^[219] T144

^[220] T146

^[221] T149

^[222] T147

^[223] T148

^[224] T151; he left that job in April 2022

^[225] T21

^[226] 11 October 2016 note

^[227] T272

^[228] T23

^[229] At 443

^[230] [2010] VSCA 69; (2010) 31 VR 1 at 12

^[231] T252

^[232] T252

^[233] T253

^[234] T296

^[235] T249

^[236] [1959] HCA 8; (1959) 101 CLR 298; T238

^[237] T250

^[238] T309-310

^[239] T249

^[240] T239

^[241] T243

^[242] T241

^[243] T303

^[244] T250

^[245] T242

^[246] T250

^[247] Both prescriptions seem to be for the left foot

^[248] T252

^[249] T273

^[250] T273

^[251] T253

^[252] T254

^[253] T256

^[254] T258

^[255] T243

^[256] T265

^[257] T245

^[258] T263

^[259] T302

^[260] T287

^[261] T305

^[262] T285

^[263] T287

^[264] T287

^[265] T306

^[266] T307

^[267] T291

^[268] T290

^[269] T292

^[270] T293

^[271] T279

^[272] T298

^[273] T289

^[274] 3, 29, and 31 July; 20 August; and 27 October.

^[275] Dr Rugara noted a longer absence- 28 June to 4 August

^[276] T134

^[277] Per Petrovski

^[278] T235

^[279] T236

^[280] T247

^[281] T245

^[282] T246

^[283] T248; Dr du Toit and Mrs Rankin were both aware the plaintiff was working

^[284] T245

^[285] T237

^[286] T266

^[287] T259

^[288] T260

^[289] T262

^[290] T306

^[291] T274

^[292] T277

^[293] T294

^[294] T298

^[295] T134

^[296] T299

^[297] T299

^[298] T296

^[299] T299

^[300] T299

^[301] Maxwell P in Haden Engineering at 11

^[302] [2007] VSCA 267; (2007) 17 VR 592 at 199

^[303] Dr Rugara reported there was a period of no work from 28 June to 4 August