Eaton v Victorian WorkCover Authority
[2025] VCC 1611
•7 November 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-06334
| NATHAN EATON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 October 2025 | |
DATE OF JUDGMENT: | 7 November 2025 | |
CASE MAY BE CITED AS: | Eaton v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1611 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Work accident – burn injury to the hip – work capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; State of New South Wales v Moss (2000) 54 NSWLR 536; Margripilis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A B Ingram KC with Mr P Haddad | Slater & Gordon |
| For the Defendant | Mr S Scully | Wisewould Mahony |
HIS HONOUR:
Introduction
1This is an application for a “serious injury” brought by Nathan Eaton (“the plaintiff”) pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”).
2The plaintiff seeks the leave of the Court to commence a common law proceeding for both pain and suffering and pecuniary loss damages.
3The plaintiff is now 25 years of age, having been born in October 2000. A few weeks after his 17th birthday, on 25 October 2017, he was working at a fast-food restaurant when a pressure cooker released hot steam and hot water, causing him to suffer a burn injury to the area in the vicinity of his left hip (“the accident”).
4As at the date of the accident, in addition to part-time work at the fast-food restaurant, the plaintiff was undertaking a Victorian Certificate of Applied Learning (“VCAL”) course as part of his ambition to become a mechanic.
5Following the accident, the plaintiff did not return to the fast-food restaurant, but he returned to complete a Certificate II in Mechanics as part of the VCAL course and then went on to obtain and complete an apprenticeship as a mechanic. He now works as a light vehicle mechanic. To his credit, he works full-time, including significant overtime. For the last financial year, he earned $109,068.90 gross.[1]
[1] Plaintiff’s Court Book (‘PCB’) 277
This proceeding
6At the hearing, the plaintiff claimed that he had suffered a “serious” physical injury within the meaning of s325(1) of the WIRC Act by way of a “permanent serious impairment or loss of body function”. Before the hearing, he had also claimed to have suffered a “serious” injury by way of disfigurement or by way of a mental disturbance, but those claims were abandoned.
7The plaintiff claimed that because of the accident he suffered ongoing impairment consequences referable to the physical burn injury, and that the consequences were “very considerable”.
8The focus of the hearing was on the claim for pecuniary loss. Although the plaintiff did not abandon the claim for “serious injury” based on pain and suffering consequences, he effectively conceded that he could not establish “very considerable” pain and suffering consequences.[2]
[2] Transcript Day Two (“2T”) 10, Line (“L”) 22-28
9The plaintiff focused on the fact that he was under the age of 26 years when injured and how that was relevant to his application for leave to commence a proceeding for pecuniary loss.
10It is well established that if a plaintiff obtains the leave of the Court to commence a proceeding for pecuniary loss damages, then the plaintiff is also entitled to commence a proceeding for pain and suffering damages.[3]
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
11The plaintiff’s claim for pecuniary loss damages was based on the contention that his ambition in life from his early teenage years was to qualify as a heavy vehicle diesel mechanic and to seek “fly-in fly-out” (“FIFO”) work in the mining industry in Western Australia.
12The plaintiff submitted that the evidence established that because of the burn injury he could no longer pursue FIFO heavy diesel work in Western Australia. He highlighted in his affidavits and during his oral evidence the claimed difficulties he has even with light mechanical work, and working in hot environments, in support of the argument that FIFO work as a heavy diesel mechanic was now beyond his physical capabilities. He highlighted the evidence of the high earnings that could be achieved in FIFO work. He said that the FIFO scenario had been “locked in”[4] by the demonstrated evidence. He said that the evidence he had provided went beyond the field of speculation about FIFO work to a point where he had established a very considerable pecuniary loss.
[4] 2T 27, L 2
13The plaintiff accepted that if the Court rejected the FIFO scenario, then he “probably wouldn’t get the 40 per cent”.[5]
[5]2T 23, L 27-28
14The defendant broadly contended that the plaintiff had not established that he had suffered a “serious injury”.
15First, the defendant contended that the evidence established that the plaintiff had recovered from the burn with no ongoing pain. Related to this submission, was an attack on the reliability of the plaintiff, when some of his evidence was compared to the objective evidence in medical records from treating practitioners. Later in closing submissions, the defendant put it bluntly and said that its primary submission was “that there’s nothing wrong with him”.[6]
[6] 2T 12, L 8-10
16Second, the defendant contended that the plaintiff had not established “very considerable” pain and suffering consequences. It highlighted what the plaintiff had retained by way of ability to engage in day-to-day activity, as compared to what, if anything, he had lost, in support of this submission.
17Third, in what it said was really the “heart of the case”,[7] it submitted that the plaintiff’s claim for pecuniary loss based on the FIFO scenario was “far-fetched”[8] and required the Court to embark on an extensive hypothetical exercise, such that the Court could not be satisfied that the plaintiff had satisfied the test for pecuniary loss serious injury.
[7] 2T 10, L 7
[8] 2T 16, L 3
Issues
18Broadly, there are two issues for resolution.
19First, is the assessment of the evidence to determine what, if any, ongoing impairment and impairment consequences the plaintiff has from the burn injury. If, as the defendant contended, there is nothing wrong with the plaintiff, then obviously his claim fails.
20Second, if there are ongoing impairment consequences, whether on the evidence the plaintiff has established a “serious injury”. This issue further distils down to whether the plaintiff had proven the FIFO scenario to establish pecuniary loss “serious injury”.
21Woven into each of the issues is an assessment of the credit or reliability of the plaintiff, where the defendant raised that as an overall consideration.
Legal Principles
22In this proceeding the legal principles are mostly not in dispute.
23The plaintiff has the overall onus to establish an ongoing compensable injury and then to establish the ongoing impairment and impairment consequences from such injury.
24In respect to pain and suffering, the plaintiff must establish “very considerable” impairment consequences.
25Next, because the plaintiff was a worker under the age of twenty-six at the date of the accident, to succeed for pecuniary loss he must establish pursuant to s325(2)(e)(ii) of the WIRC Act that he has a loss of earning capacity which will be productive of financial loss of 40 per cent or more on a permanent basis.
26The statutory formula prescribed for under s325(2)(e)(i), (f) and (g) of the WIRC Act does not apply and so the analysis of loss of earning capacity is to be undertaken on common law principles as set out in cases such as State of New South Wales v Moss.[9]
[9] (2000) 54 NSWLR 536 (“Moss”)
27The onus is on the plaintiff to establish based on the evidence that he has the requisite 40 per cent loss. But, as was confirmed by the Court of Appeal in Margripilis-Hampton v Spendwatt Pty Ltd,[10] the assessment in accordance with common law principles is one that may often have to be made based on imperfect evidence and may require broad assessments.
[10] [2022] VSCA 15
28Overall, the enquiry is directed to the plaintiff’s residual earning capacity, and the earning capacity that he would have had had he not been injured.
The plaintiff’s evidence
The plaintiff’s affidavit evidence
29The plaintiff swore or affirmed a total of four affidavits that he relied on in support of this application.
30In his first affidavit sworn 26 June 2023,[11] the plaintiff described how the accident occurred and his ongoing consequences. He described how at times he either had pain or discomfort from the burn injury and “There are no times when I feel just nothing”.[12] He described having altered sensation over the injured area. He described scarring of the left hip that was sensitive, painful and annoying when he wore pants and a belt. He said he got a lot of discomfort at night when trying to sleep. He said that it was worse in summer and was 5/10 in winter and 8/10 in summer. He described some restrictions for recreational activity such as basketball.
[11]PCB 15
[12]PCB 16
31The plaintiff set out claimed restrictions for work. He said:
“My work as a mechanic can be strenuous. Most of the time I just put up with it. In summer it worse. Strenuous jobs like putting in a transmission are quite painful. I have my hands up extended and it feels like I’m tearing my skin. I tried to avoid this at the start, but I have responsibilities and can’t escape it. I just take the pain.”[13]
[13]PCB 18
32The plaintiff then swore a further affidavit on 24 May 2024. In that affidavit he described how the scarring remained the same. By then he was working six days a week. He said he continued to have pain and discomfort daily from the scarring and that it remained sensitive. He described how wearing pants and a belt irritated the scarring.
33In the second affidavit the plaintiff described working through the pain every day. He described pain as 3-4/10 every day, probably “better described as discomfort at times – but I’m constantly noticing it”.[14] He described that every few days he would take Panadol and on a bad day would take four tablets. He described having a bad day perhaps twice a week.
[14]PCB 23
34Relevant to the pecuniary loss “serious injury” application, the plaintiff then swore a third affidavit on 5 June 2024[15] where for the first time he mentioned the FIFO work. In that affidavit, the plaintiff described how he had a conference with a barrister on 4 June 2024 and was asked whether the work he was doing as a mechanic was what he had wanted to do before he was injured. The plaintiff said that was not a question he could recall being asked in the context of his case. He then said:
“From around the age of 14 years, I had plans to be a heavy diesel mechanic. I spent a lot of time from that age researching on the topics of heavy diesel mechanics and the mines. This led me to commence the mechanical trades course I was performing at the time of my injury. My plan was to get an apprenticeship as a fly-in fly-out (“FIFO”) worker in the Western Australian mines and then drop out of school. I wanted to set myself up to buy my first home at a young age.
When my injury occurred, the pain set me back. I decided to stay at school longer as my pain was disrupting my ability to study and perform mechanical work. I continued trade school with difficulty. My mechanical trades course involved the necessary components to obtain a heavy diesel mechanical qualification. During my studies, I came to see many heavy diesel machinery parts in person. I also watched YouTube videos to get an idea of how physical heavy diesel mechanical work is.
After the injury, I got to know a few students who were also passionate about heavy diesel work and had secured heavy diesel apprenticeships. Having seen heavy diesel parts in person, watched videos of the work being performed and spoken with my peers, I formed the view that heavy diesel mechanical work was too difficult for me to perform due to the pain from my scarring. Whereas my current light mechanical role is physical, many arduous tasks can be performed by lifting the vehicles onto a hoist to avoid dragging and rubbing my waist and aggravating my injury. This is not possible in heavy diesel mechanics, as the machines are too large to be hoisted – the work is much heavier and more arduous. The job also requires frequent climbing onto, into and under vehicles (whilst handling tools and equipment), requiring a lot of contact with the torso. I could not perform that type of work, so I decided not to pursue heavy diesel mechanical work.
Had I not been injured, I most certainly would have pursued heavy diesel mechanical work as a FIFO worker working on mining vehicles. I have the necessary qualifications for the work; the thing that stopped me was my injury and the pain associated with the more physical nature of that work.
Had I not been injured, I would have over 5 years’ experience in that work by now and believe I would be earning in excess of $200,000 per annum (excluding superannuation) in such work. Whereas my present role generates me $30 per hour as a base rate, heavy diesel FIFO work pays around $80 to $100+ per hour.”[16]
[15] PCB 25
[16]PCB 26-27
35In the third affidavit the plaintiff went on to say:
“Whilst I was able to return to work as a mechanic, my present role generates me less than $100,000 per annum (exclusive of superannuation). I am still saving a deposit to buy my first home. I believe I would have a house by now if not for the injury.
Having regard to my vocational experience, educational history, and the nature of my scarring injury (including pain and restrictions), I believe I have an incapacity for unrestricted work as a heavy diesel mechanic, in particular due to my inability to perform the inherent duties of such a role on a merchantable, reliable and consistent basis. As a result, I believe my injury has caused me to suffer a 40% loss of earning capacity.”[17]
[17]PCB 28
36Based on the contents of the third affidavit, the plaintiff apparently amended his serious injury application from pain and suffering only, to include an application for pecuniary loss serious injury. The details of that amendment are not before the Court, but the parties proceeded on the basis that a valid amendment had been made and therefore no issue about that arises.
37As I shall get to when discussing the plaintiff’s oral evidence, part of the defendant’s case was built around the fact that it took the plaintiff until the third affidavit to discuss FIFO work and how that supported its contention that the prospect of that work was not seriously entertained by the plaintiff and was put forward as a speculative argument.
38The plaintiff then affirmed a fourth affidavit on 22 September 2025.[18] In that affidavit he set out some limited evidence of treatment and of ongoing pain and suffering consequences. More relevantly about economic loss, he said:
[18]PCB 30
“I confirm that I continue to work at my maximum capacity.
This involves:
(a) For the financial year ended 2023/2024, I earned $98,925 from person exertion in my present employment as a motor vehicle mechanic; and
(b) the financial year ended 2024/2025, I earned around $109,068.90 from personal exertion in my present employment as a motor vehicle mechanic, although this amount is slightly higher than I would ordinarily earn as I have been working more overtime due the departure of the experienced colleagues, I referred to at paragraph 10 above.
As deposed to at paragraph 8 and 9 of my Third affidavit, if I had not been injured, I would have pursued heavy diesel mechanical work at the mines. I would have pursed employment which gave me the highest income. In my mind, that was Western Australian work, which is what I had planned.
I know from experience that the heavy diesel FIFO roles pay much better than I presently earn. The only reason I did not pursue such employment was due to my injury. In particular, for the reasons deposed at paragraphs 6 and 7 of my previous affidavit, namely that such work was too physically arduous for me to perform with my scarring condition.
Having regard to my vocational experience, educational history, and the nature of my scarring injury (including pain and restrictions), I believe I have an incapacity for unrestricted work as a heavy diesel mechanic, in particular due to my inability to perform the inherent duties of such a role on a merchantable, reliable and consistent basis.
As a result, I believe my injury has caused me to suffer a 40% loss of earning capacity.”[19]
(sic)
[19]PCB 32-33 at paragraphs [12]-[17]
The affidavit of plaintiff’s mother
39In addition to his affidavits, the plaintiff relied on an affidavit sworn by his mother, Brooke Catania on 19 September 2025.[20] In that affidavit, Ms Catania described how, from his early teenage years, the plaintiff was always very hands on, displayed a love for auto mechanics and signed up for a school-based apprenticeship in Year 10, while working one day a week for a motor mechanic. Ms Catania said:
“From his mid-teenage years, Nathan said that he wanted to do FIFO work so he could earn big money and set himself up. A lot of the kids talked about it and he started looking into it quite seriously. I recall that he would watch YouTube videos of FIFO workers. He would often say that he is going to earn big money, get into his own home and pay it off. He was very driven and a hard worker.
…
One of the big things that happened was that he stopped expressing an interest in FIFO work, which before that time he talked about regularly – to anyone and everyone who would ask him about schooling and work plans.
Whilst Nathan is not a complainer, he still complains to me about a (sic) his pain. He told me that he saw a pain specialist earlier this year and that he is now using tropical creams. He says that he continues to have a lot of pain from work, especially at the end of the day.
I think the injury has had a very significant and adverse impact on Nathan. I have no doubt that if not for the injury he would have done bigger and better things, including FIFO work. In my view, it is due to the injury that he has not pursued that potential career path.”[21]
[20] PCB 34
[21]PCB 35 at paragraphs [6] and [10]-[12]
The plaintiff is cross-examined
40The plaintiff was cross-examined about what he had said in his affidavits and to some of the doctors.
41Early in the cross-examination it was put to the plaintiff that there were times when he did not feel any pain or discomfort around the scarring and he said that was true.[22] He then agreed that he occasionally had numbness, that the scarring remained sensitive and he could not wear a belt, and that the waistband of pants irritated the scarring.[23]
[22]Transcript Day One (“T”) 23, L 22-23
[23]T 23, L 22 ꟷ T 24, L 1
42The plaintiff was then taken to some evidence in clinical records that were ultimately tendered. The cross-examination took him back in time to soon after the accident, commencing with an attendance on Dr Salehi, a general practitioner at the Mill Park Family Practice on 3 December 2017.[24] Not surprisingly, the plaintiff said he did not have any direct memory of that attendance and commented that he was only seventeen at the time.[25]
[24]T 24, L 10-12; DCB 46
[25]T 24, L 31
43Next, he was taken to an entry from Dr Salehi of 2 January 2018 in which the doctor recorded “‘he has had no discharge/no pain/no tenderness’”.[26]
[26] DCB 46
44The plaintiff was asked whether the record of Dr Salehi of 2 January 2018 was an accurate reflection of what was going on at that time and he said “No”.[27]
[27]T 25, L 21
45Next, the plaintiff was taken to another entry from Dr Salehi, this time dated 28 January 2018.[28] He was cross-examined about how at that attendance he was given a clearance certificate for work to which he agreed with that but said, “With some pain, yes”.[29]
[28] DCB 44
[29]T 26, L 13
46He was then taken to another entry from Dr Salehi, this time on 26 February 2018,[30] where the doctor gave him some advice about applying moisturiser and the like to the area of the burn. He said he did that for about a year.
[30] DCB 44
47He was then taken to an entry from a Dr Ramasamy, also at the Mill Park Family Practice, dated 29 March 2018.[31] Specifically, he was taken to Dr Ramasamy’s note that “the wound has completely healed”. The plaintiff said physically it would have looked healed, but it is not.[32]
[31] DCB 43
[32]T 27, L 17
48Next, he was cross-examined about histories given to medico-legal examiners, commencing with an examination with Professor Vernon Marshall on 27 March 2019. He was taken to a history recorded by Professor Marshall that the burns took two months to fully heal. The plaintiff agreed that Professor Marshall’s examination finding of a red and tender area over the left hip was a fair reflection of what was going on at that time.[33] It was then put to him that he did not describe pain as such to Professor Marshall, to which he responded he would have had “At least tenderness”.[34]
[33]T 29, L 31
[34]T 30, L 4
49The cross-examiner then returned to the topic of what had been recorded by treating practitioners, based on a report dated 2 August 2018 from Dr Philip Smith, a general practitioner at the Andrew Place Clinic.[35] Dr Smith had reported that he first saw the plaintiff on 27 April 2018 and had seen him on a total of 4 occasions at the date of the report.
[35] PCB 71
50Dr Smith reported that the plaintiff’s current symptoms “are only psychological” and that “he no longer experiences any pain from the physical burns”.[36] The plaintiff said, “I don’t doubt that. I don’t get pain from the physical burn itself. It is the damage it has done”.[37]
[36] PCB 71
[37]T 31, L 18-22
51Next, the proposition was put that by the time he first saw Dr Smith on 27 April 2018, the plaintiff had been examined by a number of doctors and none had noted any ongoing pain. Therefore, it was put squarely to the plaintiff that he did not have any pain by that point in time. He said, “Ah I had pain on my pants line and I wasn’t working full-time. So I didn’t get the sensation”.[38]
[38]T 32, L 19-22
52Next, the plaintiff was cross-examined by what he said to a medico-legal psychiatrist, Dr Hillol Das, in June 2018. Dr Das’s history that the plaintiff was in no pain was put to him, along with some matters of history in the report and he said, “Not the pain part, but yeah”.[39]
[39]T 33, L 22
53Next, it was highlighted that there was then a gap in time from the report of Dr Das and no medical material until 2021, when the plaintiff lodged an impairment benefit claim, which triggered an examination with Mr John Buntine for the purpose of a report that Mr Buntine provided and dated 11 February 2021.[40]
[40]PCB 200
54Mr Buntine recorded that the plaintiff described discomfort affecting mainly the region of his left superior iliac spine due to rubbing on the belt or whatever garment he was wearing, that it was worse while working under hot conditions, and because of which he could not sleep on his left side. The plaintiff accepted that to be an accurate reflection of what his condition was like at that point in time.[41]
[41]T 34, L 9
55The cross-examiner then moved to the plaintiff’s first affidavit sworn in June 2023, and the plaintiff’s description of pain in it and how before then to doctors he had described discomfort, but not pain as such. The plaintiff responded to that by saying, “I hadn’t been working full-time before that”, but he then corrected himself and acknowledged he had worked full time from 2019 after finishing school. There was then an exchange as follows:
Q: “2023 is when you swore your affidavit?---
A: Yes.
Q: And at no stage, prior to 2023, did you refer to any pain in the area after the healing of the wound to any of these doctors?---
A: Did I not do that at my doctor's appointment?
Q: No?---
A: Um I remember saying something but - - -
Q: Okay. You didn't complain of any numbness, only discomfort and hypersensitivity?---
A: That would be pain, wouldn't it?
Q: Hypersensitivity?---
A: Yeah.
Q: Okay. Didn't seek any medical treatment for your physical symptoms after March 2018?---
A: No.
Q: In fact, between that period, you completed Year 12?---
A: Yes.
Q: You found work as a mechanic?---
A: Yes.
Q: Gone from earning 20 grand a year or so in 2019, which I presume is an apprentice's wage?---
A: M'hmm.
Q: Up till 2023, you were earning about 43 grand or so?---
A: Yes.
Q: And, again, that's an apprentice or was that - - -?---
A: 2023?
Q: When did you start? When did you become fully qualified?---
A: Ah I believe it was in 20 – end of 2022, I believe.
Q: Okay?---
A: Could be wrong.
Q: You met your girlfriend. When did you meet your girlfriend?---
A: Ah that would've been February of 2019.
Q: Okay. So your life moved on?---
A: Yes.
Q: And the complaints of pain and discomfort you've made in your affidavit and you continue to make now are exaggerations, aren't they?---
A: No.
Q: Because the wound had healed beforehand?---
A: No.
Q: You're having some irritation or some discomfort, but no pain?---
A: Sorry, could you repeat that?
Q: You're having some irritation and some discomfort, but not to the level of pain?---
A: I had pain.”[42]
[42]T 35, L 10 ꟷ T 36, L 8
56The cross-examiner then moved back to histories given to medico-legal examiners, including to a Mr Thomas Robbins, dated 22 September 2023.[43] The plaintiff was asked whether he would say that the history Mr Robbins obtained of no tenderness or physical restriction in the area of the scar was incorrect, and the plaintiff said he would.[44]
[43]DCB 14
[44]T 36, L 15
57The plaintiff was asked then again questions about the contents of medico-legal reports, this time about reports prepared by Dr Olivia Ong, pain specialist, at the request of his solicitors. He was asked questions about what was recorded by Dr Ong in her report of 12 April 2024,[45] including his description to Dr Ong of discomfort and pain at the site of the scar when trying to sleep, and severe pain flare-up about once a week. It was suggested that he had not mentioned those type of symptoms to anyone before Dr Ong and the plaintiff said “Probably not”, but agreed that, at that point in time, he could do “normal activities”.[46]
[45]PCB 95
[46]T 37, L 21-29
58Next, the plaintiff was asked questions about his more recent attendance on another general practitioner, Dr Naeem Chaudhry, at the Greensborough Medical & Dental Centre. He was taken to a clinical entry of 24 November 2024[47] and the history recorded by Dr Chaudhry of the plaintiff having constant discomfort and difficulty in sleeping at night, but “not in pain”. The plaintiff gave a pithy response to that, about how he disagreed that he would have told Dr Chaudhry that he was not in pain because “I was going to - going to - for a referral to see a pain specialist. So no”.[48]
[47]DCB 78
[48]T 38, L 26-28
59Next, the plaintiff was cross-examined about an attendance on a treating pain specialist, Dr Navid Hamedani and what was recorded by Dr Hamedani in a letter back to the treating general practitioner of 17 January 2025[49], namely the recording that the plaintiff was suffering pain, described as the feeling of skin stretching, particularly noticeable when lying flat at night and that the pain interfered with his ability to sleep, but was seen to be manageable during the day thanks to his distraction of work as a mechanic. The plaintiff accepted that to be a reasonable summary.[50]
[49] DCB 88
[50]T 39, L 16
60The plaintiff also accepted as accurate Dr Hamedani’s recording that his physical function and movements were not significantly impacted, but he did have discomfort after a long day at work, particularly after heavy tasks.[51]
[51]T 39, L 25
61Next, the plaintiff was cross-examined about the fact he works full-time as a mechanic, including overtime, more than fifty hours in a week.
62Next, the plaintiff was cross-examined about his plan to do FIFO work. It is easiest to simply set out the cross-examination about FIFO work in full as follows:
Q:“Underselling you. Definitely. You say it was your plan - and you've said this from your third affidavit onwards - it was your plan to become a fly-in, fly-out heavy diesel mechanic?---
A:Yes.
Q: And that this was a plan of yours from a young age?---
A: Since a wee boy.
Q:Since a wee boy. And so just to get straight what you're doing at the time of the injury: so you were doing school full time, Year 11 at the time?---
A:Ah I was doing VCAL.
Q: Yes?---
A: So three days a week.
Q:And part of that you were doing a Certificate III in light vehicle mechanical technology or something?---
A:Yes.
Q:And that's what you did through 2019. So you must have been doing the Certificate II before that at school, were you?---
A:I did do a Certificate II, yes.
Q:Okay. And then as of 19, you graduated on to do the Certificate III?---
A:Yes.
Q:Had you made inquiries as to what you needed to do to become a heavy diesel mechanic?---
A:Ah I spoke with teachers at TAFE and other students at TAFE of what I would need to transfer.
Q:Yes. Okay. What would you have needed to transfer?---
A:Ah I believe it's about 16 modules of 32.
Q: Okay. Did you do those 16?---
A: No.
Q: What did you do?---
A: I did my 32 modules for light vehicle.
Q:Okay. Were you doing any of 16 while you were at school?---
A:Ah I would have done some of them, yeah.
Q:Okay. And you have since decided not to pursue that job?---
A:We're talking about heavy diesel?
Q: Yes?---
A: Yes.
Q: And you decided not to pursue that job after your injury?---
A: Yes.
Q:And you decided not to pursue it because you'd spoken to people and you thought it was beyond your abilities?---
A:Yes.
Q:Did you try?---
A:Ah my work - the work that I was doing at the time - and I am still doing - was physically demanding to my capabilities already.
Q:Yes. And if the work as a heavy diesel mechanic is equivalently demanding, why couldn't you do it?---
A:It's not equivalent.
Q:okay. What is it about the work you say you can't do?---
A:Ah everything is a lot heavier.
Q:Yes?---
A:Ah a lot of spaces are usually tighter and you're bent over a frame rail trying to get to hydraulic hoses, and you're rubbing up against a lot of things, usually, what would make my pants line worse.
Q:Okay. At the time of 2018, you're seeing these doctors and you're saying there's no pain, no tenderness. Did you make an effort to try to become qualified to be a heavy diesel mechanic at that point in time?---
A:At that point in time, no.
Q:Ultimately, it wasn't your goal, was it, to become a heavy diesel mechanic?---
A:Trying to put words in my mouth?
Q:Ultimately, it wasn't your goal, was it, to become a heavy diesel mechanic---
A:It was my goal.
Q:If it had been your goal, you would have tried to gain the qualifications after the burn, when the burn had healed, wouldn't you?---
A:No. Because I understood what the workload was.
Q:Okay. Had you tried to find a job and find a, you know, try the work out?---
A:I do the job on a light vehicle basis, and I know on a heavy vehicle basis it would be too much.
Q:Yes. Okay. And you know that through what you've been told, not through what you've done?---
A:I know that from when I work on big heavy four-wheel drives at work, it can be too much.
Q:Have you said that in your affidavit?---
A:No.
Q:In fact, your assertion about the FIFO work as being something you wanted to do has come up in 2014, hasn't been something that arose in this case until then?---I hadn't been asked that question until that time.”[52]
(sic)
[52]T 42, L 21 ꟷ T 44, L29
The plaintiff is re-examined
63The re-examination commenced with questions about the plaintiff’s pain after a day of light vehicle repair work. He said he would be in a bit of pain usually, but not what he would call extreme. He said “I can feel it hurt”.[53]
[53]T 45, L 9
64Next, the plaintiff confirmed a history recorded by Dr Mary Wyatt that he had researched heavy diesel mechanical work in Western Australia, by watching videos. He was then asked what he had observed about the physical demands of that work and said:
A:“Ah everything's a lot bigger and a lot heavier. Um hydraulic lines are hard to get to, where automotive light vehicles don't have hydraulic lines, besides brake lines, but they technically count as hydraulic, um but different styles. And there's not as – any rubbing that I have to do to get to a part on a light vehicle is with my arms, or my legs in some cases, but it's not the middle of my body like a heavy vehicle.”[54]
[54]T 45, L 19-26
65The plaintiff was then asked why he had stayed in light mechanical work and not attempted to work in heavy diesel mechanical work. He said he had not done that because he did not think he would be capable of doing the physical work without extreme pain.[55] The plaintiff was then asked what it was that stopped him from doing the heavy vehicle work and he said he would feel the skin overstretching and over-rubbing on the hip.[56]
[55]T 45, L 31 ꟷ T 46, L 2
[56]T 46, L 3-12
66The plaintiff was asked whether he thought he was working at full capacity now and said he believed he was at full capacity. He said he did not think he could do the heavier work because of the amount of long days that would be needed and said that even though he works long hours now he did not do a lot of heavy work all day.[57]
[57]T 47, L 8-12
Medical evidence
67Turning next to the relevant medical evidence, some of which has already been discussed in the context of the plaintiff’s evidence and commencing with the evidence relied on by the plaintiff.
Dr Philip Smith, general practitioner
68As mentioned, Dr Smith is a general practitioner who provided a report dated 2 August 2018.[58] The main takeout from that report is that, as at the date of it, Dr Smith did not consider the plaintiff to have any pain or ongoing restriction of movement. Dr Smith opined that there was not likely to be any preclusion in the future of any physical activity. Overall, he said the prognosis “to be very good. He has recovered well physically. He is currently pursuing work as a mechanic, so hopefully this won’t affect him much long-term”.[59]
[58]PCB 71
[59]PCB 72
Dr Navid Hamedani, pain specialist
69The treating pain specialist, Dr Hamedani provided a report dated 8 October 2025.[60] Based on one consultation with the plaintiff on 17 January 2025, he reported that the plaintiff had a “chronic pain post burn injury in the left lower abdomen and hip skin with mixed neuropathic and nociceptive features since 2017”.[61] Overall, he said that cases with chronic pain following a burn injury would have a guarded prognosis, but as he had not reviewed the plaintiff, he could not back that opinion with good clinical support.[62]
[60]PCB 76
[61]PCB 76
[62]PCB 76
Dr Olivia Ong, specialist in pain medicine
70As mentioned, Dr Ong is a consultant specialist in pain medicine who saw the plaintiff at the request of his solicitors and prepared reports.
71In her first report of 12 April 2024, Dr Ong obtained a history of the plaintiff’s education and employment, current work duties, the accident and the injuries. Having done so, she noted current treatment to be regular Panadol to help with the pain. About that, Dr Ong recorded the plaintiff’s pain status as follows:
“[The plaintiff] reported that he either has pain or discomfort or both from the injury every day. There are no times when he feels just nothing. [The plaintiff] experiences permanent altered sensation over the injured area. It feels like he is touching someone else’s skin almost when he touches it. It feels like there’s a skin covering there, like a bandage being there. At times, he gets numbness, but not very often – in fact, he said that numbness would be a relief.
[The plaintiff] reports symptoms of painful dysaesthesia – constant itch and discomfort, feeling as if pants are sticking on him, and if he does pull his pants off due to discomfort, it feels like a ripping sensation. A factor that exacerbates his pain is wearing a belt. His pain level at its best is 3/10 in severity, and at its worst, 8/10. He gets a severe pain flare-up once a week when lifting things such as gearboxes and control arms in his fulltime mechanic role, which he works from 07:00 to 18:00 on weekdays, and he also works most Saturdays. He takes Panadol to help his pain, but it doesn't help much with his pain. He has not trialled anti-neuropathic pain agents to help manage his pain. He has also never seen a pain specialist.
[The plaintiff] reported that he has been left with scarring on his left hip, right where his belt goes. This hasn’t healed well and is very sensitive, painful, and annoying when he wears pants and a belt. He must wear these every day. [The plaintiff] really doesn’t like the look of the scarring, and he covers it up in public. He has been told it is sensitive to the sun and that he should minimize any sun exposure for the next five years at least. He avoids attending the beach. Things like sand make it worse. Swimming can hurt and is uncomfortable. He had been a good river swimmer.
[The plaintiff] experiences a lot of discomfort and pain when he is trying to sleep at night. He has this problem most nights of every week. There are many nights it keeps him awake. Some nights this can be hours, and other nights it can be 15 minutes.
[The plaintiff] reported that his pain is worse in summer. On a scale of 1–10, it will be a 5/10 in winter and 8/10 in summer. In summer it feels sticky, and it hurts.
His pain varies from day to day. He avoids direct hot water in this area in the shower.”[63]
[63]PCB 96-97
72In respect to the plaintiff’s present function, Dr Ong noted that, despite experiencing some pain, the plaintiff was independent in all personal activities. She noted a longstanding passion to be a mechanic ever since he was a child. She noted that basketball was now out for him and he did not do at-home car work because that was too uncomfortable given his injury and he would need to stretch and reach in difficult and awkward positions, without the benefit of the equipment that he had at his workplace.[64]
[64]PCB 97
73Dr Ong then opined there was a diagnosis of chronic neuropathic pain following burns or burn-related nerve pain. She made that diagnosis in a situation where she also commented that the burns had otherwise healed. Dr Ong then said that the plaintiff’s pain condition had not stabilised and he needed a multidisciplinary pain management program.[65]
[65]PCB 99
74In respect to work, Dr Ong said, “[the plaintiff] can work full-time in any capacity”.[66]
[66]PCB 100
75Dr Ong reported again on 3 June 2024,[67] after being provided some other medical reports for comment. Having done so, she said the plaintiff’s:
“… biopsychosocial consequences and restrictions from his current pain condition, chronic neuropathic pain, which is a result of [the plaintiff’s] burns injury, are permanent and likely to last for the foreseeable future.”[68]
[67]PCB 104
[68]PCB 104
Dr Murray Stapleton, plastic and hand surgeon
76Dr Stapleton is a plastic and hand surgeon who examined the plaintiff via Telehealth at the request of his solicitors and then provided a report dated 15 May 2024.[69] Dr Stapleton took a history of the injury and the plaintiff’s current complaints. He said that the area of hypopigmentation over the left hip remained tender, such that the plaintiff could not tolerate wearing a tight belt and tight trousers. Dr Stapleton said these symptoms had reached maximum medical improvement. He noted that the plaintiff had been a motor mechanic since leaving school.[70]
[69]PCB 105
[70]PCB 107
77Dr Stapleton went on to note that the plaintiff required no particular treatment and had reached maximum medical improvement.[71]
[71]PCB 108
Mr John Buntine, hand, plastic and reconstructive surgeon
78Mr Buntine is a hand, plastic and reconstructive surgeon, who saw the plaintiff for the purposes of an independent impairment assessment and provided a report dated 11 February 2021.[72]
[72]PCB 200
79There is some limit to Mr Buntine’s opinion given the passage of time, but in respect to work, he reported the plaintiff telling him of significant trouble and discomfort affecting the burn area at work, especially on hot days when he sometimes left early, but otherwise had no treatment.[73]
[73]PCB 202
80Mr Buntine reported the plaintiff as being equally troubled by the physical effects of the burning (discomforts and abnormal appearance) and by the psychological effects (such as anxiety near a boiling kettle).[74]
[74]PCB 203
81Mr Buntine also noted the plaintiff had resumed lighter aspects of his apprenticeship work and was then working full hours.[75]
[75]PCB 203
Dr Eman Awad, consultant in occupational medicine
82Dr Awad is a consultant in occupational medicine who examined the plaintiff at the request of his solicitors and provided a report dated 9 October 2025.[76]
[76]PCB 453
83Dr Awad obtained a history of the accident and of the plaintiff’s current symptoms, which he recorded as hypersensitivity over the left hip, a pulling sensation of pain when stretching and the area becoming irritated by contact with clothing, which was painful in the summer.[77]
[77]PCB 455
84Dr Awad took a history that the plaintiff was able to undertake all activities of daily living, with the exception of being around boiling water, although he tended to wear looser-fitting clothing when not at work. There was no history of any interference with social activity or hobbies.[78] About work, Dr Awad recorded that:
“He indicated that he never returned to the KFC role and he did not undertake any further part-time employment thereafter. He completed his apprenticeship and worked as a car mechanic whilst completing his apprenticeship and undertaking his full-time studies. Once qualified he took up employment as a car mechanic with Heidelberg Automotive Repairs from April 2023. He works full-time in a permanent position. His core hours are Monday to Friday 7 am till 6:30 pm and this includes overtime. He has a range of duties which he is able to perform. However he reflected that the activities he undertakes causes his trousers to rub against his scar which causes him irritation. In particular leaning on the vehicles and undertaking positions where he is stretched. In the summer working in a hot environment he finds these symptoms are exacerbated.
In September 2024 he had a workplace injury unrelated to his burns. He had a fracture of his left hand little finger secondary to a spring exploding. He had the day of the injury as sickness absence and returned to work the following day. He was placed in a more administrative role undertaking management type work. He states that his employer was impressed with his ability and he has remained in a more senior role managing the workshop. Initially he was supposed to work 60-40 with 40% being office type work but this has been not realistic and he estimates that he only spends 20% of his time doing office based work. He has aspirations to progress. He has had no sickness absence in relation to his injury. He enjoys his role immensely and is keen to remain in employment.
He indicated that initially he had aspirations to become a diesel mechanic and travel to Western Australia to work in the mines as a fly-in fly-out mechanic. He indicated that he was aware that he would need to upskill but that he was only required to do a further 8 modules of training to be able to attain the required qualifications. He stated that due to the weather conditions in Western Australia, he chose not to pursue this career path as he felt the heat would irritate his scar.”[79]
[78]PCB 455
[79]PCB 456
85Dr Awad was then asked to consider a report prepared by a vocational assessor, Ms Anne Forsyth, dated 23 February 2025 and to express an opinion about the plaintiff’s ability to undertake the role of heavy diesel mechanic in the Western Australian mines. Dr Awad said:
“[The plaintiff] is a stoic with a high work ethic. This has allowed him to remain in his current role as a vehicle mechanic. Whilst on the surface the roles would appear similar, they are not. A heavy diesel mechanic has a higher exertional requirement. It requires a greater degree of lifting and adopting far more awkward positions due to the size of the parts and the size of the vehicles. This is likely to put additional strain onto his scar which in my opinion is likely to cause him increased pain and discomfort. Furthermore Western Australia temperatures are much higher and therefore cause him more irritation. This is in my opinion this is (sic) not a suitable role therefore and he would not be able to do so secondary to his scar in a reliable and consistent manner. He is likely to have increased flares of pain which may become unmanageable.”[80]
[80]PCB 457
86Pausing, it is unclear whether Dr Awad’s opinion about the requirements of a heavy diesel mechanic are expressed from some knowledge or expertise that Dr Awad holds or are based on Ms Forsyth’s opinion (which I shall get to in a moment).
Professor Vernon Marshall
87The defendant relied on a report from Professor Vernon Marshall dated 9 April 2018.[81] There is not much useful evidence in that, beyond how it was used in cross-examination to suggest that the plaintiff had no pain at the time that he attended Professor Marshall.
[81]DCB 5
Mr Thomas Robbins, hand, plastic and reconstructive surgeon
88Mr Robbins is a hand, plastic and reconstructive surgeon who examined the plaintiff at the request of the defendant and produced a report dated 22 September 2023.[82] Again, the relevant part of that report was put to the plaintiff and I have already set it out, in particular, the examination findings from Mr Robbins that there was a small area near the left hip where there was superficial scarring, but no tenderness or physical restriction.[83]
[82]DCB 14
[83]DCB 15
89However, Mr Robbins summarised his opinion as follows:
“In summary, the worker sustained a superficial steam burn to the left side of his trunk near his left hip. This has since healed with only a very small residual area near his left hip which has slight superficial scarring almost invisible even to (sic) close inspection. There is no physical encumbrance or tenderness and no reason for the residual symptoms the worker claims. I consider the worker has made a full recovery without any residual physical or aesthetic impairments.”[84]
[84]DCB 16
Dr Mary Wyatt, occupational physician
90Dr Wyatt is an occupational physician who examined the plaintiff at the request of the defendant and first reported on 8 August 2024.[85] Dr Wyatt took a history of the accident and recorded the plaintiff telling her that the skin had healed satisfactorily, though he always noted an abnormal sensation in the burn area and the skin was irritated by his jeans or clothing. Dr Wyatt obtained a history that:
“[The plaintiff] indicates that he had planned to go to work in the mines after completing his car mechanic’s apprenticeship. He said that the mines were offering to train light mechanics to become heavy diesel mechanics and he did not feel that he could manage that because of the physical requirements of those roles and the ongoing burn irritation.
He talked about wanting to work on buckets on excavators and crawling around on the ground. When asked about other concerns, he was concerned about needing to lean over heavy machinery, he does that with light machinery but thought that the heavy machinery would be more problematic as the work is heavier.”[86]
[85]DCB 63
[86]DCB 64
91Dr Wyatt conducted a clinical examination and found some slight sensitivity to light touch, but no thickening or thinning of the skin at the site of the burn.[87]
[87]DCB 66
92Overall Dr Wyatt said the plaintiff had some continued irritation, but that “this would not generally be a significantly limiting condition”.[88]
[88]DCB 68
93About the FIFO work, Dr Wyatt noted that there would be a range of opportunities to work in mines that were not in the higher-heat areas, and she nominated mines across southern Australia, including Victoria. About the work as a diesel mechanic, Dr Wyatt noted the plaintiff’s current employment and said “[t]he extra demands on the scar that is largely over the left hip area do not seem major compared to the demands of his current role”.[89]
[89]DCB 68
94Next, Dr Wyatt reported again on 20 June 2025, having been asked to comment on documents provided to her and to re-examine the plaintiff.[90]
[90]DCB 70
95In respect to the burn area, Dr Wyatt recorded the plaintiff saying the problem was not so much pain, but irritation from clothes. She recorded the plaintiff managing his current job without difficulty, but there was some irritation when he lent over cars.
96About FIFO work, Dr Wyatt reported that:
“We again spoke about the job opportunities in mining. I explored more about the underground or other work. [The plaintiff] said that he had watched YouTube videos about roles and saw that he would need to be lifting 30-40 kg drums, on and off devices, leaning over and doing heavy machinery work in the above ground roles he viewed. He did not seem to have an awareness of underground work or different types of roles with more elevated platform work.”[91]
[91]DCB 71
97Dr Wyatt went on again to hypothesise about mining work and the temperatures involved. She said:
“There are several factors to consider in providing an opinion on [the plaintiff’s] capacity to work in mining.
In relation to temperature and providing more detail, underground mines operate under regulations that limit the wet-bulb temperature to a maximum of 27 °C. While transient exceedances likely occur, these environments are typically more controlled and temperate than suburban vehicle workshops during the summer months.
Mining sites—particularly in Victoria and Tasmania—offer climates broadly comparable to or cooler than metropolitan Melbourne.
In relation to the nature of work and postural demands, light-vehicle mechanical work commonly involves sustained forward flexion of the trunk—over engine bays, under dashboards, and during underbody work on creepers. In contrast, heavy equipment workshops (especially underground) often involve elevated work platforms, swing arms, and the use of cranes, reducing the need for prolonged stooping or trunk flexion. While component sizes and weights are larger, mechanical handling aids are standard, and postural load is typically better distributed.
[The plaintiff] has demonstrated his functional capacity, employed full-time as a car mechanic in suburban Melbourne and performs his duties without reported restriction, although he experiences symptoms related to his burn during hotter weather. These symptoms are manageable and do not limit function. It is reasonable to infer that, with role selection and basic risk controls, similar or lower exposure levels could be achieved in mining settings.
While [the plaintiff] has reviewed some job videos online, this appears to have given him a limited view of mining roles.
The oil and gas industry presents another viable pathway. In Victoria and the Bass Strait region, offshore and onshore facilities regularly recruit mechanical tradespeople into maintenance roles on rigs or at processing facilities. These are typically fly-in fly-out high paid positions that would be suited to his trade background.”[92]
(Footnotes omitted.)
[92]DCB 73-74
98Dr Wyatt reported for a third and final time on 3 October 2025, in a report that the plaintiff ultimately tendered.[93] In that report she commented on various jobs that had been identified to her in a suitable employment report from Recovre dated 17 September 2025[94] and she endorsed jobs as automotive service adviser, automotive parts interpreter and motor vehicle parts interpreter as “suitable employment”.
[93]PCB 459
[94]PCB 461
99Pausing here, not much turns on Dr Wyatt’s third report or indeed the Recovre report, as all the identified jobs in fact pay less than what the plaintiff is currently earning.
Relevant vocational evidence
Anne Forsyth, occupational rehabilitation consultant/vocational adviser
100Moving away from the medical evidence, I now arrive at the vocational evidence relied on by the plaintiff, commencing with the report of Ms Anne Forsyth, occupational rehabilitation consultant/vocational adviser, dated 23 February 2025.[95]
[95]PCB 113
101Before dealing with the contents of the report, there arises a consideration of Ms Forsyth’s expertise relevant to the issues for determination in this proceeding, namely FIFO work and the claim for pecuniary loss “serious injury”.
102Based on Ms Forsyth’s professional profile[96], she was a registered nurse Division 1 for a period of forty-six years. Her professional qualifications include general nursing, early childhood development and aged care. In addition, during her nursing career she provided vocational training, including for personal care workers.[97]
[96] PCB 135
[97]PCB 135
103Ms Forsyth has also been a director of Vocational Directions Pty Ltd since 2014. In her professional profile she says that she has written “a vast number of expert opinions [sic] and provided labour market analyses for the purpose of Occupational Rehabilitation”.[98]
[98] PCB 135
104Pausing here, Ms Forsyth may have provided a vast number of reports, but that does not necessarily equate to being able to provide relevant expert opinion in this proceeding. For example, it is entirely unclear what expertise she has as a heavy diesel mechanic or in the mining industry, or even for placing workers in that type of job. The appendixes to her report suggest she has no direct expertise and instead extracted information from various websites or databases.
105But there is a more fundamental problem with much of her evidence, because, as I shall get to in a moment, she expressed opinions clearly outside her area of expertise and ventured into being an advocate on behalf of the plaintiff.
106In any event, the plaintiff highlighted the evidence in Ms Forsyth’s report relevant to the issue of FIFO work, including her opinion that had the plaintiff chosen to pursue that work, his earning potential would have been far in excess of his current income.[99]
[99]PCB 130
107In her report, Ms Forsyth set out some of the relevant medical evidence, including the medical evidence that perhaps did not support the plaintiff’s claim for pecuniary loss. Next she recorded the plaintiff’s subjective complaints of pain. About the pain, she noted the plaintiff subjectively reported discomfort around the scar and surrounding neuropathic pain that was unrelenting, could be extreme, was exacerbated by hot weather and materials rubbing on the scar. She noted difficulty with humid weather, dragging heavy objects and the like.
108Pausing here, the description of symptoms to Ms Forsyth is not consistent with the bulk of the other objective evidence and is not a description I accept.
109Ms Forsyth then said:
“Based on the information above, and the physical and environmental demands of working as a Heavy Diesel Mechanic in the mining industry, despite medical opinion to the contrary, I respectfully believe that [the plaintiff’s] pain experience and discomfort would be exacerbated to very extreme and possibly intolerable levels based on the information noted above regarding pain triggers and his poor pain management, given he has not been provided with, nor participated in, the recommended Multidisciplinary Pain Management Program.
Had he remained uninjured, by virtue of his vocational aptitude and completion of a pre-apprenticeship certificate in automotive whilst still at school (pre-injury), I believe that [the plaintiff] may well have been a viable and marketable candidate for a Heavy Diesel Mechanical Apprenticeship in the mining industry, or in the general heavy vehicle industry and then transferred his trade skills to the mining industry, and have sustained the physically arduous duties in harsh environments for long hours over continuous day into the longer term, earning a very high level of remuneration, especially in comparison the his current wage as a Light Vehicle Mechanic.
However, post-injury, due to his apparently stoic nature, had he chosen to do so, he may have successfully attained an apprenticeship as a Heavy Diesel Mechanic and work in the mines discussed above, but I believe that such work would have been unsustainable into the short to medium term due to the harsh physical and environmental demands of such work and the extreme exacerbation of his untreated neuropathic pain, poor sleeping patterns sue to increased night time pain, and the impact this could have on work safety, work performance, his out of work time, and his limited ability to recuperate over long shifts over consecutive days. Conversely, he may not have passed the strict pre-employment medical examinations required of potential trade based mine workers. Had he passed the medical examination, I believe that due to the high likelihood of substantially increasing pain levels with the work demands of work as a Mining Industry Heavy Diesel Mechanic, and the impact unrelenting severe pain would likely have on his consistent and reliable work performance, work attendance and work safety, his employability as a “merchantable” candidate would decrease over time and he would eventually be forced to seek a new career path.
[The plaintiff] is coping with his current, lighter role, because he must yet his current work is having an adverse impact on his quality of life.”[100]
(sic)
[100]PCB 131-132
110Annexed to Ms Forsyth’s report were various ads for jobs as a heavy diesel mechanic in the mining industry in several States in Australia. For example, a heavy diesel mechanic – FIFO job ad that had been posted on Seek had been exhibited to Ms Forsyth’s report, which identified potential earnings in the range of $180,300-$220,000 per year. There was another job appended to her report which describes earnings up to $250,000 per year.[101]
[101]PCB 149
111Broadly, I think the parties agree that, had the plaintiff been able to take up FIFO work, he would have been earning more than he is now and probably a lot more, consistent with the job ads attached to Ms Forsyth’s report.
112In that regard, there is relevant evidence in Ms Forsyth’s report, but as I have said, some of her evidence cannot be accepted. For example, her comment that, despite medical opinion to the contrary she respectfully believed the plaintiff’s pain, experience and discomfort would be exacerbated by certain tasks, is a matter which I consider to be wholly outside her area of expertise and cannot be accepted. It is sheer advocacy.
113I do not wish to go down the rabbit hole of the utility in many of the vocational reports that are tendered in serious injury applications, but much of Ms Forsyth’s report contains commentary, opinions outside her area of expertise and ventures into advocacy. But not much turns on that because, as already mentioned, it seems tolerably clear to me that if the plaintiff was undertaking FIFO work, he would be earning considerably more than he is now.
114So, insofar as Ms Forsyth’s report contains evidence about rates of pay in FIFO work, I am prepared to accept that evidence. But I am not prepared to accept that she has sufficient expertise to opine that the plaintiff cannot now undertake that type of work.
115Further, I do not accept that Ms Forsyth has expertise to opine about what is involved in the work as a diesel mechanic or in the mining industry. I do not accept that her nursing or vocational qualifications enable her to express a medical opinion that heavy diesel work may exacerbate the plaintiff’s pain to possibly intolerable levels. Those comments go well beyond any vocational expertise that she holds.
116In short, while there is some relevant evidence in the report from Ms Forsyth, it is of limited use for the critical issues of whether the plaintiff might have pursued FIFO work and what is involved in such work, where she appears to have no direct knowledge or involvement in the mining industry. About that, Ms Forsyth’s opinions about work as a diesel mechanic or in the mining industry are all based on second hand, or even hearsay sources that she has researched. There is no suggestion she has ever directly been involved in placing a young person into a FIFO role.
Belinda Iatrou, human resources consultant
117The remaining piece of vocational evidence is the report from Ms Iatrou, human resources consultant at Flexi Personnel that was provided to the plaintiff’s solicitors and dated 31 March 2025.[102] Ms Iatrou has qualifications, including a Certificate IV in Workplace Training and Assessment and in Adult Language, Literacy and Numeracy Skills. Apparently, she has twenty years’ experience in recruitment, human resources and the like. Therefore, Ms Iatrou may have some relevant expertise in the field of recruitment or human resources.
[102]PCB 447
118However, whether Ms Iatrou’s expertise translates to the ability to express opinions about employment as a heavy diesel motor mechanic in the mining industry is unclear from her reports.
119First, for the purpose of her report, Ms Iatrou sets out how she accessed websites from Rio Tinto, BHP Australia, Seek and the Hays Salary Guide. That suggests she has some expertise in the use of a computer to research salary information. She then said that:
“In my recruitment experience and from the research I conducted from two of the leading mining companies in Australia … the potential earnings of an experienced Heavy Diesel Motor Mechanic (will be dependent on a number of factors … .”[103]
[103]PCB 448
120Ms Iatrou then set out those factors. Having done so, she then provided data from current roles advertised on Seek.
121Without pontificating further about her expertise or the relevant evidence within that expertise in her report, like Ms Forsyth, at the end of the day Ms Iatrou exhibited several job advertisements, which I accept as relevant evidence, perhaps with some qualification. One qualification is that she exhibited a job available in Far North Queensland, which is not something the plaintiff ever said he intended to pursue. However, she did exhibit a job as an underground heavy diesel mechanic (I am uncertain as to whether working underground would mean the temperature would be different) which paid up to $250,000 per year and another job as a diesel mechanic in Perth which paid between $175,000-$220,000.
122Next, Ms Iatrou set out information from the Hays Salary Guide about a heavy diesel fitter working in the mining industry, which had a range in Western Australia between $200,000-$250,000 and a typical average salary of $225,000.[104]
[104]PCB 449
Analysis
What is the level of any pain and impairment currently suffered by the plaintiff
123The first of the two broad issues for resolution is an assessment of the plaintiff’s current level of pain and impairment, if any, based on the evidence that I accept.
124Ultimately, if I accept the primary contention of the defendant that there is not much wrong with the plaintiff, then the FIFO issue falls away because it would follow that the plaintiff remains fit for that type of work.
Credit
125But before dealing with the issues for determination, it is necessary to say something about the issue of the reliability or the credit of the plaintiff, because the defendant raised it as an issue.
126During his oral evidence, I found the plaintiff to be a subdued but reasonable witness. But there was a disconnect between his subjective evidence about his current pain as opposed to what was revealed in the objective evidence from the treating practitioners, which is hard to reconcile. Whether he consciously or subconsciously embellished his description of symptoms is hard to say, but the plaintiff’s description certainly differed from the evidence from the treating doctors, such as Dr Smith or even Dr Chaudhry.
127Therefore, I accept that the plaintiff’s subjective evidence of pain should not be uncritically accepted. This is a case where the objective evidence needs careful consideration before an acceptance of what the plaintiff had to say about his level of pain or impairment.
Evidence of pain and impairment
128The objective evidence establishes that within a few months of the accident, the plaintiff when attending for general practitioner assessment of the irritated skin caused by the burn, was not describing any pain as such. For example, Dr Smith reported that on 27 April 2018, while the plaintiff had scarring, the physical injuries had healed with no ongoing pain.[105]
[105] PCB 71
129The plaintiff’s last attendance with Dr Smith was in October 2018,[106] but Dr Smith’s notes reveal the last few attendances were either for psychological assessment, or for unrelated conditions and there was no mention of any pain symptoms.
[106] DCB 39
130By the time he last attended Dr Smith, the plaintiff had effectively ceased any treatment for any physical injury, although he may have continued for a period to use some sort of ointment on the actual scar. Objectively, by then the plaintiff had no pain or restriction for work as a mechanic, but may have had some irritation, hypersensitivity or discomfort from the scarring.
131Pausing, it should be remembered that the plaintiff does not rely on the scarring as a “serious injury”. Rather he relies on the physical injury, although on reflection he did not clearly articulate what that injury was. I will proceed on a broad description of it as a physical burn injury, or perhaps a neuropathic pain condition.
132After the last attendance with Dr Smith, the plaintiff did not seek any treatment until 24 November 2024, when he attended Dr Chaudhry. Therefore, during a period of 5 years he had managed to finish his apprenticeship, qualify as a mechanic and work full time, without any treatment. Neither did he seek any medical assessment in that period to determine if he could undertake FIFO work. In fact he has never sought such assessment.
133On 24 November 2024 Dr Chaudhry recorded the plaintiff describing “c/o constant discomfort and difficulty sleeping at night” and “not in pain”. In addition, Dr Chaudhry recorded “seeing a solicitor and wants referral to pain clinic”. Dr Chaudhry then made a note “Referred for further assessment and management as requested by patient”.[107]
[107] DCB 78
134There is no report form Dr Chaudhry. The clinical records suggest that the doctor made the referral to a pain specialist because that was what the plaintiff requested, as opposed to an opinion by the doctor that such an assessment was necessary. Notably, like Dr Smith, Dr Chaudhry recorded that the plaintiff was not in pain.
135The referral for pain management was then made to Dr Hamedani, who saw the plaintiff for the first and only time on 17 January 2025 and recorded a description of chronic pain and discomfort. But about that, Dr Hamedani reported to Dr Chaudhry that the plaintiff “described the pain as a feeling of skin stretching, particularly noticeable when lying flat at night. This pain interferes with his ability to sleep but seems to be manageable during the day thanks to the distractions of work” and that “his physical function and movements are not significantly impacted, but he does experience discomfort after long days of work, particularly after heavy lifting tasks”.[108]
[108] DCB 90
136In his report to the plaintiff’s solicitors dated 8 October 2025 Dr Hamedani said the plaintiff had chronic pain post burn injury with mixed neuropathic and nociceptive features since 2017.[109] Dr Hamedani went on to say that cases with chronic pain following a burn injury would have a guarded prognosis but he could not back that opinion up with good clinical support because he had not reviewed the plaintiff.
[109] PCB 76
137Based on a consideration of all the evidence from the treaters, I do not accept that the plaintiff has any significant ongoing pain, if there is any pain at all. I do not accept that he has had chronic pain since the burn injury because that is not supported by the objective medical evidence and is inconsistent with the fact that he was able to get on with his life without the need for any treatment for about 5 years. Therefore, I am not persuaded by Dr Hamedani’s opinion about there being an ongoing physical injury with neuropathic or nociceptive features.
138I accept that the plaintiff may have some irritation from the scar when wearing tight fitting clothes, and some hypersensitivity or pulling sensation when stretching or lying flat. But regardless, whatever symptoms he might have does not appear to limit him much at all.
139Accordingly, like Dr Hamedani, I also do not accept the opinion from Dr Ong about the existence of a neuropathic pain condition because I also do not accept that Dr Ong was given an accurate description of the symptoms. In addition, the weight to attach to Dr Ong’s opinion is reduced because Dr Ong blended the consequences from any neuropathic pain condition with what she identified as a psychological condition, hence her opinion that the plaintiff required multidisciplinary pain management and review by a psychiatrist to assess the “likelihood of PTSD, trauma symptoms and psychological distress”.[110]
[110] PCB 100
140For a consideration of the plaintiff’s level of pain and impairment, to some extent the diagnosis is irrelevant. For example, even if I was to accept that there is a neuropathic pain condition, as contended for by Dr Hamedani and Dr Ong, neither doctor placed any real restriction on the plaintiff’s work capacity. Dr Ong opined about work: “Mr Eaton can work full-time in any capacity”. [111] Dr Hamedani said nothing at all.
[111]PCB 100
141Dr Ong’s opinion about work capacity fits with the objective evidence of pain and impairment. After the accident, the plaintiff completed VCAL and an apprenticeship as a mechanic, without any modification of the apprenticeship. The plaintiff is now employed in a manual job as a mechanic and does at least some moderately heavy work. He works long hours, without any medical restriction. He effectively has no treatment for any claimed physical injury. Further, there is no suggestion that he needs to take time off for work, for example in the summer months. The referral for pain management seems to have been made by Dr Chaudhry without any enthusiasm, and even the plaintiff himself seems to have little enthusiasm for it, as illustrated by only consulting Dr Hamedani on the one occasion.
142Overall, the medical opinion supports a conclusion that whatever symptoms he might have, the plaintiff has an unrestricted capacity for work.
143The strongest evidence about any restriction for work is from Ms Forsyth, but as I have made clear, I do not accept her to be suitably qualified to express medical opinions about work capacity. In addition, Ms Forsyth ignored a lot of the objective medical evidence and made her own assumptions about the plaintiff’s true level of pain.
144Next, I acknowledge that Dr Awad supported the plaintiff’s submission that there was an incapacity for FIFO work. About that, Dr Awad recorded the plaintiff saying that he did not pursue FIFO work in Western Australia because the heat would irritate his scar.[112] Dr Awad also expressed opinions about the higher temperatures in Western Australia and how that might irritate the scar or increase the plaintiff’s pain levels.[113]
[112] PCB 456
[113] PCB 457
145But the weight to attach to Dr Awad’s opinions is limited because it is inconsistent with the other medical evidence as set out that I accept. In addition, Dr Awad uncritically accepted the plaintiff’s account to him that his current work “comes at a cost to pain that he has to bear”[114] which I consider is a description of pain that does not fit with the objective evidence and is one I do not accept.
[114] PCB 457
146Dr Awad also dismissed FIFO work as suitable, but his opinion about that seems to have been influenced by the provision of Ms Forsyth’s report to him for comment and his acceptance of her opinions about the unsuitability of heavy diesel or FIFO work, rather than any expertise by Dr Awad to opine about FIFO work in general. Further, Dr Awad generally described the plaintiff as having discomfort with activity from the scar[115] and I am not persuaded that such discomfort means that the plaintiff has pain and impairment at a level that precludes FIFO work.
[115] PCB 458
147Finally on this topic, Dr Wyatt described objectively that the plaintiff had some sensitivity to light touch[116] and that any ongoing irritation would not “generally be a significantly irritating factor”.[117] Dr Wyatt noted the current nature of the plaintiff’s work as a mechanic and raised a valid issue whether heavy diesel work would be much more demanding. True it is that she then proceeded to discuss hypotheticals for mining jobs in cooler climates, or even underground, that could be said to indicate she accepted that he could not now work in hotter weather. But on my assessment of Dr Wyatt’s reports, she was simply discussing such hypotheticals because of the questions asked of her.
[116] DCB 66
[117] DCB 68
148I also accept Dr Wyatt’s opinion that even if the plaintiff is restricted for some work in hotter weather, that with role selection and basic risk control settings, similar or lower restrictions to the plaintiff’s current work could be achieved in a mining setting.[118]
[118] DCB 74
149Overall, I conclude that the evidence does not support a conclusion that because of the plaintiff’s burn injury he cannot work as a heavy diesel mechanic, or that he cannot work in hotter weather. I do not accept his subjective evidence that he cannot undertake FIFO work.
150In short, I conclude that the plaintiff is medically fit for FIFO work, should he want to go down that path.
151Accordingly, the claim for pecuniary loss is not made out.
The FIFO scenario
152That is sufficient to dispose of this case, but as significant time was devoted to the FIFO scenario, for completeness I will deal with that topic, as it is the second broad issue that fell for determination.
153The accident occurred in October 2017. The plaintiff made no mention at all anywhere in the evidence of any interest in FIFO work until his third affidavit sworn 5 June 2024. There is some merit in the defendant’s submission that the lateness in which FIFO work was raised suggests it was not really something that the plaintiff had seriously considered.
154But to give him the benefit of the doubt given his young age at the time of the accident and the fact that his working life was really yet to commence, overall, his evidence and his mother’s evidence supports a conclusion that from his early teenage years the plaintiff had wanted to be a mechanic and had considered the idea of FIFO work as an option after completing his apprenticeship.
155But the lateness in which that scenario was raised in the evidence suggests this is not a case about a young man with a clear objective, plan or passion in life but for being injured. In support of that conclusion is the fact that he has not discussed with any treating practitioner whether that type of work is an option for him, which it might be thought he would have done if this really was his ambition or intended career path.
156I accept that the assessment of loss of earning capacity for a very young person is often based on limited or imperfect evidence. Nevertheless, the plaintiff still bears the overall evidentiary onus. His evidence was that he had watched some YouTube videos about FIFO work. But beyond that, he did not provide much detail about his knowledge of what the work involved.
157Relevant to the last point, the plaintiff gave no useful evidence about the age people start that type of work, or how he would have gone with FIFO work as a teenager. Further, he was only nineteen years old when he met his current domestic partner at a time when he was still an apprentice mechanic. Happily, for him, that relationship has flourished and they now live together. Notably, as the defendant highlighted,[119] there is no evidence from his partner. There is no evidence about whether FIFO work would be an option for them as a couple. About that, the plaintiff said nothing in his affidavit or oral evidence. In other words, FIFO work might never have been an option for him from the time he settled into a long-term domestic relationship in Melbourne.
[119] 2T 17, L 28-31
158Overall, on the issue of FIFO work, the plaintiff simply did not produce a lot of useful evidence. He did not produce evidence of an actual mining job that he had applied for, or even a job he had identified, other than what was in the vocational reports. He did not provide any specific evidence about a ‘real FIFO job’ and why he could not do such a job, beyond broad assertions about the effect on his pain levels and how the hotter weather impacted him.
159Also, even if there was a possibility of FIFO work that had been lost because of a physical burn injury – which, to be clear, is not the conclusion I have reached – as Dr Wyatt opined, there may still be a residual capacity for other mining type work “after injury”.
160The plaintiff did not address the evidence from Dr Wyatt that there may be jobs in the mining industry that are still within his capacity, instead just broadly asserting that mining jobs in Western Australia must be harder and hotter than what he does now, without any actual objective evidence about that.
161About FIFO work, the plaintiff failed to provide clear or direct evidence from anyone in the FIFO industry, to assist in an assessment of whether the plaintiff was ever going to be a realistic candidate for the lifestyle that comes with FIFO work. There is no family history of that work, and no evidence that he knows anyone in the industry.
162The plaintiff proceeded on the assumption that it was enough to establish a claim for pecuniary loss if the Court was to accept that before injury, he had an ambition and intention to pursue FIFO work, that he cannot now pursue. But in my opinion, something more was needed by way of evidence beyond just proving an ambition or intention.
163In other words, just because he might have had an ambition or intention, or even if he would have undertaken FIFO work for a period, that does not mean that overall, he has a loss of earning capacity that is productive of the requisite financial loss of 40% or more. This is even more so where he continues to work as a mechanic, working long hours and increasing his salary to a point where he is now earning over $109,000 gross per annum, which is more than 60% of some of the jobs identified in the vocational reports.
164In short, even if I accept that the plaintiff had an ambition or intention to undertake FIFO work, that is not the end of the ballgame. The plaintiff must still establish that he has a loss of earning capacity that will be productive of an actual financial loss of 40% or more on a permanent basis.
165It is the second part of the test that is important in the context of the dearth of evidence.
166Even when assessed in accordance with common law principles, the plaintiff simply has not produced sufficient evidence for the Court to conclude that FIFO work was a realistic option for him before the accident. In addition, even if it was a realistic option, he has not proven that he has suffered an actual loss of earning capacity that is permanently productive of financial loss of 40 per cent or more.
167So, whichever way it is approached, the plaintiff has failed to establish an entitlement to commence a proceeding for pecuniary loss.
Pain and suffering
168For completeness, I also conclude that the evidence does not disclose “very considerable” pain and suffering consequences.
169The plaintiff’s ongoing sensitivity and restrictions form the burn injury are simply not “very considerable”. He works full time in his chosen career. Apart from some difficulty with tight fitting clothes, he could not point to any real impairment consequences from the physical burn injury. He drives a car, socialises, works on cars in his spare time, has been able to maintain an intimate relationship, and is able to perform a full range of domestic and personal activities.
170Keeping in mind that the Court must consider the full range of impairments and impairment consequences and not just those that come before the Courts, whatever consequences he has now are a long way below being capable of described as “very considerable”.
Disposition
171For the reasons expressed, the plaintiff’s application for “serious injury” is dismissed.
172The parties are invited to prepare a minute of orders to finalise the proceeding.
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