Irfani v Transport Accident Commission
[2025] VCC 1331
•16 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-25-00404
| BARAT IRFANI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14 and 15 August 2025 | |
DATE OF JUDGMENT: | 16 September 2025 | |
CASE MAY BE CITED AS: | Irfani v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1331 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – right upper limb impairment – organic basis – range
Legislation Cited: Transport Accident Act1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013]; VSCA 326; Meadows v Lichmore [2013] VSCA 201; Nicholson v Victorian WorkCover Authority [2016] VSCA 146; Abbas v Transport Accident Commission [2015] VSCA 217
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Ms N Hanna | Zaparas Lawyers |
| For the Defendant | Mr M K Clarke with Mr S Martin | Wisewould Mahoney |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 22 September 2022 (“the said date”).
2Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
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”.
4The body function pursuant to sub-paragraph (a) relied upon by the plaintiff is the right upper limb – wrist and shoulder. The psychiatric impairment application was not abandoned,[1] but no submissions were made in relation thereto. “On the papers”, that application lacked merit.[2]
[1] Transcript (“T”) T1
[2] T83
5The 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.
6The 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.[3]
[3] Richards v Wylie (2000) 1 VR 79
7The plaintiff swore two affidavits and was cross-examined. He also relied on an affidavit sworn by his wife, Gul Chehra-Irfani, on 22 July 2025. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
8The main issues in dispute were whether the plaintiff’s right upper limb impairment has a substantial organic basis and if so, whether the consequences of any impairment are serious.[4] The plaintiff ‘s focus was on pain and its effect on his working life as a painter.[5]
[4] T4
[5]T111
Plaintiff’s evidence
9The plaintiff is aged fifty-two and was born in Afghanistan. He is right hand dominant. He lives with his wife and three children, aged twenty-three, seventeen and fourteen.
10English is his second language and his skills in reading and writing English are limited.
11He completed secondary school in Iran, where he then did construction work. He lived and worked in Pakistan for about ten years. There, he had a grocery shop and also worked in real estate.
12In 2011, he migrated to Australia. He first lived in Sydney for about two-and-a-half years, where he studied a Diploma in Real Estate[6] and did some painting work.
[6]T10 – the course was in English
13He moved to Melbourne in 2014. Since that time he has always been a self-employed painter. He has an ABN. He usually worked forty hours a week over five days and sometimes longer hours, depending on the work.
14If other people had a big job, they might get him into contract. He had a number of regular builders he did work for. He does his own paperwork in his business and has an accountant who does his tax.[7]
[7]T10
15Before the said date, he was in good health and able to work without restriction. He fractured his right leg in 2010 and recovered well. That injury did not interfere with any work or daily activities.
The accident
16On the said date, he was driving through the intersection of Thompsons Road and South Gippsland Highway in Cranbourne at about 75 to 80 kilometres per hour,[8] when another vehicle failed to give way turning right on a red traffic arrow, causing a T-bone collision in the middle of the intersection. The other car struck the passenger side of the plaintiff’s vehicle (“the accident”).
[8] Ambulance Report and Dandenong Hospital Report
17The plaintiff’s wife, who was a front seat passenger, was also hurt. The plaintiff was in shock, as the accident occurred at high speed and without notice. He was wearing a seatbelt and the airbags were deployed.
18Emergency Services attended the accident scene. The plaintiff was transported by ambulance to Dandenong Hospital (“the Hospital”). He had immediate pain in his right shoulder and wrist.
19At the Hospital, he had scans of his right shoulder and wrist and was told he had a right distal radial fracture. His right wrist was put in a cast. He was admitted overnight for observation before being discharged the following day. He wore the cast for about six weeks, with follow-up appointments with Orthopaedic Outpatients at the Hospital.
20He attended his GP, Dr Farhana Islam, at Better Health Family Clinic after the accident and remains under her care for his injuries.
21He had a range of scans following the accident, including x-rays of his right wrist on 23 September and 21 October 2022; a right shoulder ultrasound on 11 November 2022; an x-ray of his right hand on 22 November 2022 and an MRI scan on his right wrist on 1 June 2023. He also had a right shoulder x-ray on 23 September 2022 and an ultrasound on 8 November that year.
22He had a long course of physiotherapy treatment of his upper arm injuries with Joshua Hua at Berwick Physiotherapy until funding was ceased.[9]
[9]August 2024, T58
23On 7 June 2023, due to ongoing right shoulder and wrist pain, his GP referred him to Professor Minoo Patel, orthopaedic surgeon, whom he saw in about July that year.
24Professor Patel referred him for another MRI scan of his right shoulder, carried out in December 2023. He saw Professor Patel a few times. He was prescribed Meloxicam for pain. They also discussed future treatment options, including injections or potentially surgery. Professor Patel did not suggest the plaintiff see a pain specialist.[10] The plaintiff could not recall discussing pain management with his GP.[11]
[10]T59
[11]T63
25The plaintiff was worried about the risks and decided not to have injections or surgery. Professor Patel could not give a guarantee about the injection so he did not go ahead with it. He was worried that if he had the injection he would get worse and would not be able to manage any more, having earlier been told by a friend of issues he had with an injection.[12] He was scared of the injection because he thought he might get worse and lose his house ($560,000 mortgage) and his “whole life”.[13]
July 2024[14]
[12]T60
[13]T72
[14] First affidavit sworn on 29 July 2024 (“first affidavit”)
Work after accident
26Post accident, the plaintiff had a few months off work and then returned to work as a painter, working in an almost full-time capacity – initially casual part time.[15] He continued to work with pain and restriction. He continued to require time off due to pain and to rest his shoulder and wrist. He had to say no to work due to pain, meaning there had been a reduction in his income.
[15]T16
27He then wore a right wrist brace for support which was suggested by his physiotherapist. He was attending his GP usually monthly and had physiotherapy fortnightly. He also took over-the-counter medications, including Panadol, Panamax and Nurofen.
28He had constant right shoulder pain – a dull ache which varied in intensity. It was aggravated by performing overhead activities and any activities involving pushing, pulling or lifting, or prolonged repetitive use of his right arm. Sometimes the pain was so severe he could not work. He had reduced range of right shoulder movement.
29He had persistent right wrist pain which varied in intensity and was aggravated by activity. His right wrist felt very stiff. He had difficulty lifting anything heavy with his right hand due to wrist pain and had reduced grip strength.
30His work significantly aggravated his right upper limb pain. Pre-accident, he used to do all the tasks, including heavy work. He was now restricted to lighter duties. He was struggling to cope with those duties and pushed through the pain because he had to provide for his family.
31He had real difficulty carrying heavy paint tins with his right hand and relied heavily on his left hand and had learnt how to paint with his left.
32He had lost confidence at work and was very anxious about injuring his right upper limb and was always cautious not to aggravate his pain. There were then times he was not able to go to work or had to say no to jobs due to pain and he needed to take time off to rest.
33He felt constantly frustrated by his post-accident situation by his pain and restrictions. He worried about the future, his injuries getting worse and not being able to provide for his family. He was worried about his future work capacity. He was just coping at work as it was. He had basic computer skills and English was his second language. He had not worked in administrative or office type work before. He could not easily imagine what sort of work he would find and manage to keep due to his pain and restrictions if he lost his ability to work as a painter.
34His life had not gone back to normal since the accident and he missed being able to live his life and engage in work without pain and restriction.
35In addition to his physical symptoms, his accident-related injuries affected his mood, which at times was very low. He felt anxious, but had not had any treatment in that regard.
ADLs
36Due to his upper limb problems, he had difficulty washing his hair, putting on a jumper, putting his pants on, reaching objects in high shelves and carrying objects.
37He did not tell Mr Chehata on examination earlier this year that he could not dress himself. He said that he needed help sometimes.[16] If he wants to properly wash his body, he needs help, but he can manage with a quick shower. He probably gets help showering two or three times a week. Otherwise he does it himself. He disputed he told Mr Chehata about these problems because he wanted to give him the impression he had a very bad injury. He needed assistance according to his level of pain. If he has a lot of pain, he needs to get help. Otherwise he can dress himself or have a shower. Usually it is his wife who helps him.[17]
[16]T64
[17]T65
38He resisted the suggestion that it was a nonsense he could work six days a week and not look after his personal hygiene tasks.[18]
[18]T66
39His sleep had been interrupted by pain since the accident, usually in the right shoulder, but also the wrist. He woke due to pain usually two to three times a week and had difficulty sleeping due to pain. He took pain medication or used a heat pack. He felt more tired due to interrupted sleep.
40He was still able to drive, but his right shoulder and wrist pain was aggravated by gripping the steering wheel for long periods and he was also an anxious driver. He did not like driving at night and worried about further accidents, which was not the situation pre accident.
41In the witness box, he demonstrated how he drives with his left arm bent up in the air. His left arm is up and his right arm only holds the steering wheel. He trained his left arm to use it more than his right. Sometimes he can put his right arm up on the steering wheel. He answered “yes” to the question “Were you trying to give the impression to [h]er Honour, by putting your right arm down here [in your lap] that you had a very bad injury to your right shoulder?”[19]
[19]T19
42Since the accident, his social life had been affected. He now often avoided social situations because of pain. He felt tired a lot of the time, which also stopped him going out. He had previously enjoyed dancing at community or family occasions, but was now scared he might hurt himself, so he avoided it.
43He was more irritable and was sensitive to loud noises, which he put down to being always in pain.
44He had experienced nightmares, usually of the accident circumstances. When he had a nightmare, he woke panicked and it would take a while to get back to sleep. The nightmares were then less frequent.
April 2025[20]
[20] Second affidavit sworn on 24 April 2025 (“second affidavit”)
45He had had an increase in right shoulder pain and that was the main reason he was now relying on pain medication.
46His pain was most ferocious when at work and it was in that context that he suffered greatly. The impact of work on his right shoulder is now becoming unmanageable, but he does his best by reducing his work output, taking breaks and relying on pain medication.
47He continues to see his GP about monthly, who provides him with advice in respect of management of his condition.
48He has been dealing with increased pain in recent times associated with difficulties at work and as a result, is now prescribed Celebrex, which he takes on a daily basis, in addition to over-the-counter medication such as Panadol and Nurofen – paid for by the defendant.
49He is not currently prescribed Palexia, but was not sure when it was last prescribed.[21]
[21] T6 - last prescribed in October 2024
50He is currently taking Celebrex when he is working. If not working, he uses other tablets.[22] He sometimes does not take Celebrex at work. When he is not working, sometimes he takes two tablets, Panadol Forte and Nurofen.[23]
[22]T6
[23]T8
51He takes Panadol every day and usually takes just one. He will take Panadol when he takes Celebrex if the pain is not relieved.[24]
[24]T11
52If he takes a Panadol, the pain does not go away completely. It settles for a few minutes, then it comes back. He then agreed he could not have pain for a couple of hours.[25] Nurofen reduces the pain better than Panadol. If the pain is worse, he takes Nurofen, and if it is less, he takes Panadol. Seven days a week he takes either Panadol or Nurofen, and on most occasions, he would take only one tablet a day.[26]
[25]T13
[26]T14
53The defendant had recently stopped paying for physiotherapy. The plaintiff’s GP had referred him to Clyde North Physio for treatment funded by Medicare. He has had two visits, the most recent on 11 August 2025.[27] He has three more visits left.[28]
[27]T30
[28]T31
54There was a gap between physiotherapy appointments because funding had been ceased and he needed the Medicare referral.[29]
[29]T58
Current work
55Before his injury, he loved working very much but no longer enjoyed work because it is stressful and painful.
56He has particular difficulty painting ceilings and doing overhead work. When he gets a job that involves painting the outside of the house it makes him anxious, as he knows there is less flexibility in the way he can work, as he sometimes has to work at a height.
57He continues to take on the work as he has no other way to support himself; however, due to his pain, he has to take breaks regularly and manage his symptoms.
58He has to rely on painkillers to perform work, which concerns him, as he does not want to be reliant on medication. However, the reality is he can no longer perform work without medication and must work to support his family.
59He suffers from regular flare-ups of pain, which vary in intensity and duration. They are regularly severe enough to cause him to be unable to work, and on those occasions he takes time off and rests at home.
60As his injury is to his dominant arm, he has trained himself to do a lot of painting work using his non dominant left hand, which means it takes him longer to complete painting tasks.
61He now tries to avoid using the paint spray gun at work, which is quicker, and instead uses small rollers and brushes. This is because, once you start spraying, you cannot stop for a break until it is finished, because there will be visible streaks in the finish. Using the rollers is slower, but he can take breaks to manage his symptoms and can also rectify streaking using the rollers.
62He operates his own business as a painter and performs a mix of commercial and residential work.[30] He quotes his own jobs and each is quoted on a fixed amount.
[30]T15 - he has not done any commercial jobs since the accident
63As a result of his injury, the jobs take him longer to do and he also has to spend more on subcontractors to assist in doing work which is now beyond his capability. As a result, he has had a substantial reduction in income.
64He earned in excess of $75,000 gross for the financial year ending June 2020.
65During 2021 and 2022, he earned about $50,000 per annum, although those earnings were not a true reflection of his real earning capacity, as they were reduced by a significant downturn in available work due to COVID.
66During 2023, his level of work returned to pre-COVID levels, however, he is severely restricted by his injury in respect of his profitability.
67Due to market forces, he is presently able to charge around 50 per cent more than he could for the same work in 2020. While expenses such as paint had become more expensive, the primary reason for the increase in price is because of labour costs increasing.
68As a result of his injury, he was far less profitable because:
(a) he was paid a fixed price for a job, rather than on an hourly rate;[31]
(b) he was physically less productive as a worker due to his injury, meaning jobs took him much longer to complete than pre-injury;
(c) he requires additional time off work due to flare-ups of pain and management of his condition, which he would not be taking if he had not been hurt;
(d) there were many jobs beyond his capability, which he either does not take on, or pays contractors to help him complete, thus eating into his profits.
[31]T17 – he was paid an hourly rate
69If not for his injury, he believes that from July 2022, he would have been capable of generating income from personal exertion via his business of far in excess of $100,000 per annum.
70As a result, he has suffered a significant financial detriment working in his present capacity. While he continues to work full time, he does so in a restricted manner and his expenses are high, thus affecting his bottom line. He estimates that this has caused him, and will continue to cause him, a loss of earnings of at least $25,00 per annum.
Viva voce evidence
71In the witness box, the plaintiff explained he had his right hand just sitting by his side not moving because he had pain in his wrist and shoulder. It would be difficult to use his right hand to touch his left shoulder and touch his left wrist. Sometimes, even without doing any activities, he has pain.[32]
[32]T12
72The plaintiff is working full time as a painter.[33] His evidence was confusing as to when he worked and when he did not work, whether he had taken time off work to rest because of pain if so and for how long between jobs.[34]
[33]T16
[34]T16
73He could take up to two to three weeks off work because of pain. He agreed that he did not mention this in his affidavits. He then seemed to say he would take five days off.[35] He struggled to remember when he last had to take a week off work because of arm pain.[36]
[35]T17
[36]T18
74He last worked the Friday before Monday’s hearing. He gets work from his community. It was a small job, about two weeks’ work for about $4,000 to $5,000. He is to start another job on 18 August – the following Monday – if his pain was okay.[37] He told “Ali” last Friday when they finished that job that he would not be able to work the following Monday on another job.[38]
[37]T17
[38]T21
75The last job, completed last Friday, was close to Heidelberg (“the Ivanhoe job”). The plaintiff seemed to have difficulty remembering anything about that job.[39] He explained that was because of his memory problems. Until a year after the accident, his memory was okay but then his health did not improve so his memory gradually got worse. He mentioned memory problems to his GP, but agreed he had not mentioned it in his affidavits.[40] While his GP on earlier certificates of capacity noted no memory problems – the plaintiff had not told him as until then, he was hoping that he was going to recover.[41]
[39]T22
[40]T23
[41]T25
76Because of his memory problems, he has to make a note of all the things he is to paint and not to paint, and where.[42]
[42]T25
77He had to drive about two and a half hours to and from work to the Ivanhoe job.[43] It was a very large house and there were three, including him, doing the painting.[44]
[43]T23
[44]T24
78He manages to do most of the work with his left arm, but if not possible, then he uses his right.[45]
[45]T20
Invoices
79He does not give invoices to customers he knows. Those customers transfer the money to him. He did not give the Ivanhoe customer an invoice. That customer did transfer the money for that job. He knew that customer before he did that job through other painting jobs, “for like two or three years for Ali”. Ali is a painter. He was not sure of Ali’s last name but his name came up on the bank transfers, “Ali paid”. Ali is the man for whom he did the Ivanhoe job.[46]
[46]T29
80Ali organises everything and when they are working together, the plaintiff does not need to get all the details. They either work together or Ali asks him to do the work. They trust each other and work together.[47]
[47]T30
81The plaintiff has his own equipment which he uses when needed. Otherwise they use Ali’s equipment.[48]
[48]T30
82Ali is his main source of work, together with the other people who are listed on the bank statement. If Ali has work and jobs that he offers him, he works for him. If Ali does not have jobs, he gets jobs from other people.[49]
[49]T51
83When he gets some sub-contractors to do work for him, he does not get them to give him invoices. He gets the clients to pay them directly. He does not have any paperwork for any of the jobs he has done in the last couple of years, but he does give invoices to people he does not know.[50]
[50]T31
84A call was made for all the business invoices in the last twelve months and also the plaintiff’s bank statements for that period.[51]
[51]T32
85The plaintiff never gets paid in cash,[52] but sometimes by cheque.[53]
[52]T34
[53]T35
86The plaintiff was taken through his Commonwealth Bank statements from 24 July 2024 to 26 June 2025 from the account he uses for personal and business purposes. Anything that has been paid to the business has a reference number on the statements.[54]
[54]T39
87He denied he had earned $97,000 from the business in that period. He did not work that much.[55] He did not make that amount.[56] Ultimately, the parties agreed on $81,298 as the actual business earnings in that period.[57]
[55]T38
[56]T39
[57]T53
88When asked if he worked full time as a painter in that period, “it depends to the job, so it has been anything between four to six days, some weeks four days, some weeks five days”. Before the accident, he was working six days a week but after, he has tried to take some days off.[58]
[58]T40
89He agreed he told Mr Chehata in April this year that he had been working six days a week rather than five because the pace he is now working at was slower. He could not remember whether he had worked six days a week most weeks in 2025. He has frequently done so.[59]
[59]T41
90From July 2025, he had worked consistently, but he could not remember clearly if he had taken time off, but he had due to pain.[60]
[60]T41
91His daily rate is between $320 and $500.[61] The Ivanhoe job involved painting inside and outside the house. He worked with Ali and another painter. He painted the ceiling while standing on the ground using an extension roller. This required the use of both hands, but he disagreed that the real power was coming from his bottom right hand. He uses his right hand for sensitive, small areas and to sand, particularly in sensitive areas.[62]
[61]T42
[62]T44
92One of his team would be doing preparation, another cutting and another rolling, all in different rooms.[63] When asked whether he frequently had to lift paint tins weighing more than 2 kilograms with his right hand, the plaintiff said he was not working on his own. He sometimes does, but if he was paying attention, he would be careful and he would not lift heavier paint tins. Sometimes he paints on his own. If it is a heavier job, he asks his friends to do it, but he can do lighter jobs himself. He does not put paint into the paint tray and have to pick up a heavy tin of paint by himself.[64]
[63]T44
[64]T46
93He denied that he said picking up a tin of paint and putting it into a paint tray was a problem because it would help his case. He was telling the truth. He has a problem with his wrist sometimes, but mainly it is his shoulder, and Ali tells him, like any time that he is in pain or cannot continue, to take a rest.[65]
[65]T48
94He agreed he did some work on the Ivanhoe job on a ladder, painting with a brush, and used his right hand when he needed to be precise.[66]
[66]T49
95The money for the Ivanhoe job would be in his bank statement, paid by electronic transfer of around $3,000. The amount paid depends on the job. The cost of the job is discussed before the job starts. On that job, he was paid in the range of $300 per hour from 7.00am to 3.30pm.[67]
[67]T50
96Even if he was not in Court, “These days I’m in pain, I’m not able to work. Even coming this morning, I took Nurofen before coming here.”[68]
Sport and leisure[69]
[68]T51
[69]Second affidavit
97Pre accident, he played soccer, darts and volleyball with friends on weekends at the local parks, or at a friend’s home. The injury has caused him a significant inability to partake in those activities as he would enjoy.
98While he continues to occasionally watch his friends play soccer, he is unable to actively take part in any meaningful way, as he is afraid of injuring himself. This is also the situation with darts and volleyball.
99Pre-accident, he also regularly swam at the local pool and beach, and also regularly went hiking with family and friends. As a result of his shoulder injury, in particular, he is now unable to perform freestyle without severe pain, so avoids it.
100He also avoids hiking, as he finds being on his feet for prolonged periods increases his right shoulder pain. This is particularly so as he is working full time and any additional activity after a full week of work is just too much for him.
101Before the accident, swimming was not a regular routine. Sometimes he would go with his kids. He did swimming as an exercise, and when the weather was good, he would go to the beach and the pool with the kids. When asked about freestyle mentioned in his affidavit, he said “I don’t know any of those ways to swim”. He would swim “in my own way so I don’t drown”.[70]
[70]T66
102He confirmed that before he hurt himself, he was swimming, hiking and playing football and soccer.[71] He had the ability to go hiking and do things before he hurt himself; however, he did not go hiking regularly – how could he? – when he came home from work. When he was asked how often he played darts before the accident, he said “What is that?” He played volleyball before the injury, but does not now. He used to play with the kids once or twice in a week in the park.[72]
[71]T67
[72]T69
Lay evidence
103The plaintiff’s wife, Gul Chehra-Irfani, swore an affidavit on 22 July 2025. They have been married since 2000 and have three children. She is presently employed as a childcare educator in a permanent part-time role, working between three and four days per week.
104She was a front seat passenger in the accident and suffered an injury to her lower back, knees, toes and stomach. After the accident, the plaintiff complained about pain in his right shoulder, right arm and wrist when transported to hospital.
105Before the accident, the plaintiff was working as a painter five to six days a week, usually leaving for work around 5.00am and working long days.
106Pre accident, she observed him to be a calm and active person. He helped her with housework and cooking. He regularly played soccer with the children and took them to the park. He also caught up with a group of friends regularly for a game of soccer. They used to socialise with other Afghan families and went to community events on the weekends.
107Post accident, the plaintiff continues to complain of pain in his right upper limb, particularly when he gets home from work, telling her his right shoulder pain is worse than his right wrist pain.
108He stays off work more frequently now, having rarely taken a day off before the accident, because he has pain in his right shoulder and needs to rest his arm. He has told her several times his painting work aggravates his right upper limb pain.
109Post accident, the plaintiff is earning less money than he was before. He advised her he cannot manage jobs he previously did, so he either does not accept them or pays other contractors to help him, which takes away from his profit. He has told her it also takes him much longer to finish a job.
110The plaintiff has had physiotherapy. She still sees him take tablets to help treat his pain.
111Since the accident, she has noticed the plaintiff appears tired and he often tells her he just wants to sleep. He is more easily upset and has a shorter temper. He interacts less with the children than he did pre accident and does not do activities or play with them much anymore.
112The plaintiff rarely meets up with his friends on a regular basis and the family socialises less due to his injury and also her lower back pain.
113Since the accident, the plaintiff has had broken sleep, getting up through the night massaging his right shoulder. She sometimes helps him. He did not have problems sleeping pre accident. Their intimate relationship has changed since the accident and he keeps to himself much more.
114She has observed him having less patience when doing things around the house and he does not give much help anymore, although she injured her back in the accident.
115Since the accident, they have experienced financial difficulties because the plaintiff is earning less and that has caused them both stress.
116She can see the plaintiff has pain and he tells her he has pain in his right upper limb. She worries about whether he will be able to continue working. He is a good husband and father and she knows supporting his family financially is important to him, even with his injuries.
Plaintiff’s medical evidence – treaters
117At Monash Hospital, the plaintiff reported mild pain in right wrist and right shoulder since the accident. There was an –
“X-ray – distal radius subtle intraarticular fracture best appreciated on scaphoid view. Unla styloid separate from the ulna but appears well corticated and nil tenderness there.
Backslab put on
…
Observed till the morning.”
118The plaintiff was discharged with Endone.
Dr Farhana Islam, general practitioner
119Dr Islam reported to the TAC in January 2023, advising the plaintiff’s accident injuries were a right distal radius fracture and right shoulder soft-tissue injury subacromial bursitis.
120As at January 2023, the plaintiff’s wrist pain was getting better, but he continued to struggle with significant right shoulder pain. He may go back to work with light duties very soon, likely from January 2023.
121The plaintiff was then not able to lift his right arm above shoulder level and he had limited movement. The plaintiff needed to continue physiotherapy for both injuries.
122The plaintiff could drive short distances only, reporting he did not feel comfortable to drive fast and long distances.
Clyde North Physiotherapy, Joshua Hua
123Mr Hua reported in November 2023 that the plaintiff was managing okay with day-to-day activities, but had plateaued in terms of shoulder function.
124Pain management and psychological counselling were then avenues that had the potential to improve the plaintiff’s pain and function.
Professor Minoo Patel, orthopaedic surgeon
125Professor Patel first saw the plaintiff in August 2023, a year after the accident, when the plaintiff presented with right shoulder and wrist pain and had continued working.
126On clinical examination, the plaintiff demonstrated pain behaviour “+++”. The examination was essentially normal, other than tenderness over the SL interval dorsally.
127Noting the MRI scan showed a partial thickness bursal surface cuff tear, he was concerned about the plaintiff’s pain behaviour. He prescribed a short course of Meloxicam and recommended shoulder isometric exercises, and also seeing a pain specialist. He last saw the plaintiff on 11 December 2023.
128He diagnosed a right shoulder partial thickness bursal surface cuff tear with AC arthropathy, with impingement on the MT junction of the SST.
129He thought it was hard to determine the nature of the relationship between the accident and the initial presentation, given that it was almost a year later. Furthermore, there was significant pain behaviour that exceeded the pathology seen on the MRI scan of the wrist and shoulder, which was relatively mild and could not explain the severity of the symptoms.
130As at December 2023, he thought referral to a pain clinic would be a good place for the plaintiff to start prior to considering any surgical intervention.
131There is no suggestion in Professor Patel’s report that the plaintiff undergo a right shoulder injection. The plaintiff’s evidence was that Professor Patel did discuss this with him.[73]
[73]T59
Investigations
132There was a right shoulder x-ray on 23 September 2022, following which it was reported no fracture or dislocation was identified and the right acromioclavicular joint was intact. Following x-ray of the right wrist, also on that day, no fracture was seen, including scaphoid, and the wrist joint space was preserved.
133There was an x-ray of the right wrist on 21 October 2022. It was reported there was a subtle lucency in the radial styloid, which may represent an undisplaced fracture.
134The plaintiff had an ultrasound of his right shoulder on 8 November 2022. It was reported there was a thickening of the subacromial subdeltoid bursa. It was concluded there was subacromial subdeltoid bursitis and it was noted an ultrasound-guided steroid injection can be performed.
135There was an x-ray of the right hand in November 2022, following which it was reported there was normal joint alignment and no fracture, dislocation or bony destruction. There was the stable appearance of an old ulnar-styloid tip fracture.
136There was a triplanar MRI scan of the right wrist in June 2023, following which it was reported there were features suggesting distal intersection syndrome. There was triangular fibrocartilage complex degeneration with moderate distal ulnar and mild proximal lunate chondral wear. There was moderate triscaphe and pisiform-triquetral degeneration. There was mild ECU tendinopathy and tenosynovitis and there was scarring of the volar wrist capsule with a ganglion cyst traversing the RSC.
137Following an MRI scan of the right shoulder in September 2023, it was reported there was mild subacromial bursitis, tendinopathy supraspinatus with minor bursal surface tears and an AC joint arthropathy, with indentation of myotendinous junction of the supraspinatus.
Plaintiff’s medico-legal evidence
Mr Raf Asaid, orthopaedic surgeon
138Mr Asaid first saw the plaintiff in October 2023 and re-examined him in March this year.
139On both occasions, the plaintiff described his right shoulder pain as a constant dull ache, which on occasion can become so severe he is unable to work. He has difficulty performing repetitive overhead activities and struggles with any heavy lifting. He is unable to carry any heavy paint tins with his right hand and now relies more on his left. The pain in the right wrist is predominantly over the dorsal aspect. He has difficulty gripping heavy objects and his right wrist feels stiff.
140When last seen in March 2025, on examination, the plaintiff held his right arm by his side with his wrist resting against his stomach. Both his right shoulder and wrist were irritable and he grimaced with any attempted movement. His right shoulder rotator cuff strength was normal and impingement tests were negative. Grip strength on the right was reduced.
141Mr Asaid initially diagnosed a right distal radius fracture and right shoulder soft tissue injury with subacromial bursitis. On re-examination, the plaintiff had developed chronic right shoulder and right wrist pain.
142Based on the results of the investigations performed to date, he considered the plaintiff’s condition to have an organic basis.
143The plaintiff continued to do his pre-injury duties full time. Despite that, he reported that everything takes him a lot longer to complete and he has had to learn to paint left handed, while often relying on pain medication to get him through the day.
144Realistically, given the plaintiff’s current presentation, he did not foresee that he would be able to continue to perform unrestricted pre-injury duties in the long term.
145It is likely for the foreseeable future the plaintiff would be restricted in relation to activities involving pushing, pulling or lifting, use of plant and equipment, prolonged or repetitive use of his right arm, fine and manipulative tasks and overhead activities.
146Given the chronicity of the plaintiff’s condition and current presentation, he suspected the prognosis was likely to be relatively poor.
Dr Leon Turnbull, occupational psychiatrist
147Dr Turnbull has examined the plaintiff on two occasions, initially in October 2023 and most recently in May 2025.
148He thought the plaintiff’s mood and emotional disturbance and intrusive recollections amounted to an adjustment disorder of mild proportion.
149Psychiatrically, the plaintiff is concerned about his body and thus limits what jobs he does out of fear and anxiety. Outside of that, the plaintiff has a full work capacity. He is distracted by his aches and pains and that undermines his ability to embrace life more fully.
Dr Eman Awad, occupational health specialist
150Dr Awad examined the plaintiff in May 2025.
151On examination, the plaintiff had almost normal range of movement for his right wrist and his right shoulder had some limitation at extremes of movement.
152The plaintiff then described intermittent wrist pain and could be pain free at times, but his pain increased on activity. He reported a pain score of 0-8/10, depending on what he was doing.
153The plaintiff reported constant right shoulder pain with a severity score of 7-10/10. He was never pain free, with the pain over the anterior and posterior aspect of his joint.
154The diagnosis was right distal radius fracture and right shoulder soft tissue injury.
155Post-accident, the plaintiff took six months off work and then returned to self-employment, still contracting to another company. He indicated he worked five days a week undertaking nine hours per shift, but noticed he was slower at painting and he tended to avoid any ceiling or overhead work, asking his colleagues to do that for him. He advised undertaking any work above shoulder height caused him to rely on analgesia.
156Based on his right shoulder, the plaintiff should limit pushing, pulling, lifting over 10 kilograms, prolonged overhead or forward reaching or repetitive use of his right upper limb for the foreseeable future.
157The plaintiff’s prognosis was fair.
Defendant’s medical evidence
Treaters
158The plaintiff’s clinical notes from Better Health Family Clinic printed on 15 April 2025 show the only prescription of Celebrex this year was on 8 January 2025. Palexia was last prescribed in October 2024
Defendant’s medico-legal
Mr Ash Chehata, orthopaedic upper limb surgeon
159Mr Chehata examined the plaintiff on 29 April 2025.
160On examination, the plaintiff held his right arm in a very unusual position at 90 degrees against his body. It was very difficult to examine his right upper limb because he was unable to relax.
161There was no wasting in the right upper limb and certainly no neurological compromise, radiculopathy or myelopathic features. There was highly abnormal hand dynamometer testing, with the right averaging 35, while on the left, 80. That was difficult to reconcile. There was no forearm wasting.
162On examination of the shoulder, there were features that appeared to be impingement. The right shoulder MRI scan showed bursitis and AC degeneration, but no tearing.
163Following the accident, the plaintiff had a full trauma series, excluding any major fractures or dislocations, although there was a suggestion of a potential intraarticular fracture of the distal radius, with a separate ulnar styloid fragment that appeared longstanding that was placed in a back slab.
164There was no definitive answer on exactly what was fractured and after new imaging, including x-rays of the right hand, there were no specific fractures or dislocations identifiable. While there was a potential inference of a fracture, further imaging occurred with an x-ray of the right wrist three weeks later, excluding any obvious fracture. Regardless, the plaintiff had a plaster for six weeks to treat his wrist pain.
165The final diagnosis appeared to be a pain syndrome. It was clearly a high energy injury and the plaintiff likely suffered some form of soft tissue injury either at the wrist or the shoulder.
166Interestingly, the plaintiff was fit for suitable duties four months after the accident and returned to full time hours in February 2023, which was continuing. He is currently taking Panadol, Celebrex and Nurofen intermittently, depending on his work, and appears to have gone back to full-time work. He says he is able to work as a painter, although he uses his left limb far more than his right, and the right becomes quite tired far quicker than it did before.
167Currently, the plaintiff is suffering unusual symptoms of what appears to be quite significant right-hand pain and bursitis in the right shoulder. He appears to have been able to return back to painting, which is difficult to reconcile considering his alleged symptoms.
168The plaintiff tends to hold his right arm, hand and elbow flexed in a very unusual position and holds it against his body. The impression he gave during the consultation was certainly not someone who is able to return back to normal painting utilising his right arm. This may be a cultural phenomenon to pain or to the consultation. The plaintiff advised that he now works more hours than normal, working six days a week rather than five because of his now slower pace.
169The plaintiff was involved in a high-speed accident and there was no doubt about the mechanism. He had likely suffered quite a significant soft tissue injury or a minor fracture that is barely visible on the right wrist as well as bursitis in the right shoulder.
170The plaintiff said he needs help with dressing and showering, as well as gardening, but had been able to return back to painting and utilised his left arm far more than his right. It appeared that this was some form of pain phenomena, rather than a particular fracture or dislocation, as a reason for the ongoing pain. The plaintiff's symptoms are almost unreconcilable with his ability to return back to painting, yet the social and recreational pursuits have become impossible to perform. He presumed there was far more likely a greater psychosocial and psychosomatic issue at play.
171The presenting condition appears to be a quite complex presentation and rather than a simple fracture of the wrist and soft tissue injury to the shoulder that would be expected to resolve, it certainly appears the plaintiff has developed some form of chronic pain presentation.
172He would certainly be very open to the idea of quite significant pain after these accident injuries, but would have expected the phenomenon to have resolved. It appears that there is far more likely a secondary phenomena of either psychosomatic or functional elements to the plaintiff’s presentation, unexplainable from the purely structural perspective.
173He wondered whether the limited movement of the right arm is just to simply amplify and assure him that there was a specific injury, but it was difficult to note. Clearly, the right shoulder appears to remain quite symptomatic with the sole soft tissue presentation relating to bursitis.
174The wrist fracture with the ulnar styloid fracture that was clearly old may be related to an incident in Afghanistan in 2010. The radiological evidence really does not support any structural pathology apart from incidental age-related changes in the wrist and bursitis in the shoulder. Certainly, the plaintiff’s presentation of the symptoms far outweighs any of the radiology and there is clearly a psychosocial/cultural complexity to the presentation.
175When the pain is so severe, often the sole diagnosis is some form of pain syndrome and he wondered whether the plaintiff had developed a pain phenomena like a shoulder/hand syndrome, which would fit quite neatly with the idea of the pain in his wrist and hand and then developing a secondary capsulitic picture. No surgical intervention is warranted, nor is it likely to be beneficial.
176The plaintiff’s current capacity has been quite good. Although he describes his day-to-day activity as limited, it is unlikely he is able to return to work six days a week painting and it has any effect on his day-to-day pursuits. His current work capacity is back to normal full duties working six days a week, and that would be expected considering the lack of structural pathology post accident.
177The prognosis is coloured and more by the lack of education and what appears to be some other secondary gains or psychosomatic phenomena, which is almost unable to be reconcilable, such as being able to work six days a week, yet unable to dress, shower or wash himself. Clearly, there is some other deeper phenomena going on.
Overview
Credit
178As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[74]
“… 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.”
[74](2010) 31 VR 1 at paragraph [12]
179The plaintiff’s credit and reliability were significant issues in this application.
Defendant
180The plaintiff’s reliability as a witness is a central feature in this case in terms of assessment of pain and suffering.[75]
[75] T83
181Credit is particularly critical when, on any view, this case is really at the margins and it is properly a range case. For the plaintiff to succeed, the Court really has to accept him as a witness of truth on every aspect he relies upon and the Court ought not do so.[76]
[76] T84
182The plaintiff was an unimpressive witness who repeatedly refused to engage in questions, refused to respond directly to very simple propositions and provided answers regularly that he thought would assist his case. When he was stuck on what to do, he fell back on memory problems which he claimed to have had since the accident about which he had previously told no one.[77]
[77] T92
183The plaintiff is an unreliable witness whose evidence ought not be accepted in the absence of supporting evidence.[78]
[78]T92
Plaintiff
184Counsel conceded there was no doubt the plaintiff did not answer questions well. It was also conceded that a number of issues were wrong in the plaintiff’s affidavits – freestyle and darts – but it was submitted the plaintiff is not a liar.[79]
[79] T99
185Occupational psychiatrist, Dr Turnbull, thought that the plaintiff’s thinking was mildly muddled and there was anxiety present. This was said to be a reason for the way he answered questions and also explained by the difficulties he was having with work as being the sole breadwinner.[80] Anxiety about his work future may be an explanation for the plaintiff’s overstatement.[81]
[80] T99
[81]T105
Findings
186The plaintiff was an unreliable and unimpressive witness for the reasons detailed by the defendant.
187Further, while serious injury affidavits can sometimes be inaccurate and there is often miscommunication in their preparation, in the present application, not only was there what I ultimately found to be exaggeration by the plaintiff, but also there were matters to which he deposed that were clearly wrong – difficulty doing freestyle when he does not seem to know how to swim, an inability to play darts when he did not even know what they are and avoiding hiking after the accident when it was not really an activity he enjoyed pre accident.
188While the plaintiff gave these candid answers in the witness box, I have difficulty accepting his affidavit evidence which painted a picture of significant disability in circumstances where he is able to work six days a week as a painter, requiring little medication.[82]
[82] T98
189Given my views as to the plaintiff’s unreliability, other supporting evidence as to his claimed level of disability and restrictions is particularly relevant in this application. Save for an affidavit from his wife, this evidence was lacking. Crucially, there was no affidavit from the plaintiff’s workmate, Ali, who was in the best position to corroborate the ongoing difficulties the plaintiff claims to have at work in circumstances where his business income is at its highest level. Ali also could have provided evidence of the plaintiff having to knock back jobs or require time off because of his right arm condition.
Organically based compensable injury
Defendant
190There is a significant issue about whether there is a substantial organic basis for the pain and suffering consequences relied on.[83]
[83] T84
191In Meadows v Lichmore Pty Ltd,[84] Maxwell P set out the two-step manner in which the Court ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[84] [2013] VSCA 201 at paragraphs [21]-[22]
192When the plaintiff was first seen by Professor Patel, the plaintiff demonstrated pain behaviour “+++”. The right shoulder examination was essentially normal and one of the recommendations for further treatment, then and later, was seeing a pain specialist. It is clear this surgeon thinks this is a case where there is a role for a psychologist to treat the plaintiff’s pain.[85]
[85] T85
193Professor Patel also noted the presence of significant pain behaviour in circumstances where the pathology on the MRI of the shoulder and wrist was relatively minor.[86]
[86] T85
194Professor Patel was focussed on a referral to a pain clinic as being a good place to start prior to considering any shoulder surgery – “[C]learly, the surgeon is raising the spectre of a pain issue, abnormal pain issue, and the need for pain specialist intervention … Plainly red flags in the context of whether there would be surgery … there’s very good reasons why [the plaintiff] hasn’t been, and there’s no prospect of surgery being undertaken.”[87]
[87] T87
195Professor Patel’s opinion sits very comfortably with Mr Chehata’s. In particular, when asked to consider the findings on examination and whether they support the plaintiff’s current complaints, Mr Chehata noted there is clearly a psychosocial cultural complexity of the presentation. He was unable to pinpoint a structural cause and could only presume this is a chronic pain phenomena.
196Mr Chehata thought there is no apparent organic cause of the plaintiff’s presentation but there is some type of chronic pain phenomena. It is particularly important he has accepted the plaintiff has severe pain and restrictions and his conclusion then is it must be a chronic pain condition which it was submitted is plainly not substantially organically based.[88]
[88] T87
197Mr Asaid also noted issues with pain behaviour on physical examination – the plaintiff holding his right arm by his side and grimacing – but does not really address this issue in any fulsome way.[89] This was significant pain behaviour, particularly where, on examination, right shoulder rotator cuff strength was normal and impingement tests were negative.[90]
[89] T88
[90] T90
198Exaggeration or feigning by the plaintiff is not required for there to be a non organic basis for his complaints.[91]
[91] Meadows v Lichmore Pty Ltd (supra); T88
199Further, there is the spectre of a difficulty between the plaintiff’s presentation and clinical examination and also a history of working full time as a painter. There is no real path of reasoning for Mr Asaid’s opinion that there is an organic basis to the plaintiff’s pain and the Court ought to prefer Professor Patel and Mr Chehata.[92]
[92] T91
Findings
200As I indicated during the hearing, in my view, there is a physical basis for the plaintiff’s right upper limb impairment, and the issue for determination in this application is really one of range.[93]
[93] T98
201As Mr Chehata described, in the accident, the plaintiff clearly suffered a high energy injury – he was likely to have suffered some form of soft tissue injury at either the level of the wrist or shoulder.
202Mr Chehata described the shoulder injury as quite significant and the wrist potentially so. He thought it was a genuine injury.[94] He did not think the plaintiff was making it up. If he accepted what the plaintiff told him, he just could not work it out.[95]
[94] T102
[95] T90
203Mr Chehata accepted the plaintiff’s right shoulder was injured in the accident, with bursitis being shown on the MRI. Further, on examination, the plaintiff had features that appeared to be impingement. Mr Chehata also raised the development of a secondary capsulitic picture.
204While it is unclear whether the plaintiff suffered a fracture of the right radius in the accident, after much discussion in his report, Mr Chehata ultimately accepted that the plaintiff was likely to have suffered a quite significant soft tissue injury or a minor fracture that is barely visible on the right wrist. A cast was applied for six weeks to treat the wrist pain.
205Although Professor Patel diagnosed pain behaviour, on the plaintiff’s evidence, he suggested the plaintiff undergo a shoulder injection – treatment for an organic complaint. If pain management did not improve the plaintiff’s shoulder issue, Professor Patel was prepared to consider surgery.
206Specialist shoulder surgeon, Mr Asaid, thought the plaintiff’s right upper limb condition had an organic basis based on the investigations carried out. Dr Awad made no mention of any abnormal pain behaviour on examination in May this year, simply diagnosing a right distal radius fracture and right shoulder soft tissue injury.
Are the consequences “serious”
Pain
207In Haden Engineering v McKinnon,[96] President Maxwell said 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).
[96] Supra at paragraph [11]
208The plaintiff presented in a similar manner when giving evidence to when he was examined by Mr Chehata and Mr Asaid. He had his right hand just sitting by his side not moving. He explained it would be difficult to use his right hand to touch his left shoulder and touch his left wrist. Sometimes, even without doing any activities, he has pain.[97]
[97]T12
209The plaintiff described his right shoulder pain in his affidavits as a dull ache which varied in intensity, aggravated by a range of movements. This pain was increasing. Sometimes it was so severe he could not work. Right shoulder movements were reduced.
210He recently deposed his pain was “most ferocious” when at work and that the impact of work on his right shoulder is now becoming “unmanageable”, but he does his best by reducing his work output, taking breaks and relying on pain medication.
211In his first affidavit, the plaintiff also described persistent right wrist pain which varied in intensity and was aggravated by activity. There was no description of right wrist pain in his recent affidavit.
212I accept the plaintiff continues to suffer some right upper limb pain, manly in his shoulder, but not at the level he describes.
213It is difficult to accept the plaintiff’s level of complaint and restriction and the immobility of his right upper limb evident in the witnessbox and when seen by a number of examiners, when he is still able to work six days a week in his painting job that is relatively heavy, requiring upper limb strength and freedom of movement.
Treatment – what the plaintiff does about his pain
214While the plaintiff deposed he continues to see his GP about monthly, providing him with advice in respect of management of his condition, the GP’s records do not show regular attendances.
215The plaintiff ‘s recent affidavit also overstated his painkilling medication intake. His viva voce evidence about his medication intake was very confusing, ultimately agreeing that he takes one tablet of Celebrex when working and otherwise, takes one Panadol or Nurofen most days.[98]
[98]T93
216The plaintiff had physiotherapy until funding ceased in August 2024. He resumed this treatment earlier in the year, having had two of five Medicare funded sessions.
217The plaintiff seemed unaware of any suggestion he undergo pain management. He did volunteer he had been offered an injection by Professor Patel but was too scared to undergo that treatment.
What the objective evidence shows about the disabling effect of the pain
Work
218A major consequence focussed on by the plaintiff in this application was interference with work as a result of his right upper limb condition.[99]
[99] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Plaintiff
219The plaintiff says two things: “I have difficulty doing my work and I am earning less money” – “I am presently able to charge around 50 per cent more than what I could charge for the same work in 2020.”
220That 50 per cent is critical. The plaintiff was cross-examined on everything except that issue.[100] The absence of other evidence took on a different mantle when what was there was unchallenged.[101]
[100] T97; T95
[101] T96
221The main thrust of the plaintiff’s case is that “whether … [the Court] accepts the extent of his descriptions from time to time, there is no doubt that his work is very considerably affected by his injury, he’s had to make significant adaptions, he is vulnerable, and he is, … extremely determined about continuing, and rightly anxious about whether or not that will be able to continue, because it’s his whole world.”[102]
[102] T106
222The plaintiff and his wife complain about a significant loss of opportunity. “While the Court may have some difficulty with that, nonetheless there is no doubt, at the very least, the plaintiff has lost significant opportunity because of his injury which his form would indicate he would have taken full advantage of, but for his injury.[103] He was a man keen to get ahead as much as he could and that has been denied to him.”[104]
[103] T106
[104] T107
223The Court was asked to accept the proposition the plaintiff is significantly affected in his work. He has learnt to paint and continues to try to paint left handed. This evidence was unchallenged. The plaintiff is a man who is extremely worried about what might happen to him in the future – “For him, … all of that is very considerable, it’s his whole world for this migrant.”[105]
[105] T102
224If the plaintiff lost his present job he would have a real problem getting something else and that might explain his unusual tenacity. He has learnt to paint with his left hand. He is unusually determined and he keeps doing it and finds a way. It is a very considerable picture for him, this constant threat to his livelihood.[106]
[106] T101
225While the word “stoic” had not been used, it was absolutely the tenor of what was being said on the plaintiff’s behalf. He had continued to work under difficulty because he had a family and he is a family man.[107]
[107] T103
226Further, Dr Awad thought the plaintiff’s work capacity was restricted.[108] Mr Asaid did not foresee the plaintiff would be able to continue to perform unrestricted, pre-injury duties in the long term.[109]
[108] T106
[109] T105
Defendant
227In this case, the plaintiff has the capacity to do a great deal, frequently working six days a week as a painter, having recently had his highest earnings.[110]
[110] T93
228The figures in the plaintiff’s affidavit were “very wild” (but for injury, business would be generating far in excess of $100,000 per annum) and were really shown to be without merit by reason of what he has earned in the last twelve months or, alternatively, there is a complete lack of real raw data behind them and they are clearly just broadbrush figures.[111]
[111] T83
229The tax returns speak for themselves and the matters raised by the plaintiff in his second affidavit ought not be accepted in the absence of raw data or supporting evidence.[112]
[112] T95; Annexure “A”, Summary of the Plaintiff’s Taxation Returns
230Gross earnings is the appropriate assessment in terms of whether there is any merit to the plaintiff’s claim for pecuniary disadvantage because it allows, free of fluctuations and expenses et cetera, to see the work that has been performed by the plaintiff and generated income.[113]
[113] Nicholson v Victorian WorkCover Authority [2016] VSCA 146
231The gross figure allows for a pure assessment between what someone has, by their personal exertion, been able to achieve – in this case, from painting one year and what they have been able to achieve in another year.
232The figures are clear that, in the past twelve months, the plaintiff has been as productive as ever by virtue of his personal exertion when painting. The pecuniary disadvantage issues deposed to in his second affidavit are without merit.[114]
[114] T81
Conclusion
233There is no requirement the plaintiff show current pecuniary disadvantage for work to be considered a pain and suffering consequence.[115]
[115]Abbas v Transport Accident Commission [2015] VSCA 217 at paragraph [37], citing State of Victoria v Glover [1998] VSCA 93
234In any event, there is a different situation in the present application where the plaintiff’s recent earnings from his business are at their highest level.
235When this hearing commenced, the only documentation relating to the plaintiff’s business was a summary of his tax returns. After a call was made, some bank statements were produced for the period July 2024 to June 2025. The parties agreed the business income was $81,298.00 in that period. There were no work books or invoices in evidence. There was no relevant lay evidence.
236The plaintiff’s case is twofold – he is restricted in his use of his right hand at work and he is losing money as he has to charge 50 per cent more than he did in 2020.
237It may not have been directly challenged but the only evidence about the 50 per cent increase was from the plaintiff himself, whose evidence I found unreliable. I have difficulty accepting this evidence without corroboration.
238While he may use his left hand for many tasks, the plaintiff continues to work full time as a painter – often up to six days a week as he confirmed – although being unable to give any real detail of the jobs undertaken and the actual work he performed. This is not a situation of his right shoulder condition now becoming “unmanageable” as he recently deposed. His reliance on pain medication is very modest.
239I do not accept the plaintiff is a stoic. He is a man whose pain level and need for medication is modest, such that he is able to continue relatively demanding full-time painting work. Taking one tablet a day is not the reliance on pain medication he deposed to.
240As discussed earlier, an affidavit from Ali, the painter with whom the plaintiff has worked for and with for the last two to three years, could have provided corroboration of much of the plaintiff’s evidence about work and his difficulties.
241Further, there was no evidence about any increases in the pay rates for painters over the last few years as the plaintiff claimed.[116]
[116] T96
242There is no evidence supporting the plaintiff’s claim that he requires additional time off work due to flare ups of pain – his evidence in this regard being very vague.
243There is no evidence of any job beyond his capability that he either did not take on or paid contractors to help him complete. There is no evidence of any payments made by the plaintiff to contractors. There is no evidence from any contractor engaged by the plaintiff in these circumstances of working for the plaintiff.
244There is no evidence the plaintiff has lost significant employment opportunities because of any right upper limb condition.
245The plaintiff has been unable to adequately explain any reduction in his income as he deposed.
246While his wife deposed the plaintiff is earning less post accident than before, this is not correct.
ADLS and leisure activities
247I do not accept the plaintiff has the issues with personal care such as dressing and showering given his ability to work full time as a painter.
248I am not satisfied the plaintiff does not engage in, or is significantly restricted in any particular sporting or domestic activity because of any right upper limb impairment. Given his level of activity at work, it is hard to see how he would not be able to assist with the housework or attend to his personal hygiene tasks. His demonstration of what he does with his hands when he drives made no sense.
249I accept that the plaintiff suffers some frustration because of his right upper limb pain, affecting his mood.[117]
[117] Richards v Wylie (supra)
250Taking into account all the evidence, I am not satisfied the consequences of any physical injury to the plaintiff’s right upper limb are “serious”. Psychological factors contribute to much of his presentation.
251Accordingly, the application is dismissed.
Annexures
Annexure “A”: Summary of the Plaintiff’s Taxation Returns
ANNEXURE “A”
Summary of the Plaintiff’s Taxation Returns
Financial Year Taxable Income (after expenses) Tax Payable Income Sources 2018-2019
$34,445.00
-
Barat Ali Irfani
2019-2020
$73,207.00
$13,259.27
Barat Ali Irfani
2020-2021
$51,914.00
$5,083.73
Barat Ali Irfani
2021-2022
$49,834.00
$3,910.56
Barat Ali Irfani
2022-2023
$50,812.00
$5,924.88
Transport Accident Commission
Barat Ali Irfani
2023-2024
$49,727.00
$5,374.17
Barat Ali Irfani
0
6
0