McGrath v Victorian WorkCover Authority
[2025] VCC 1227
•1 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-24-05664
| CHRISTOPHER JOHN McGRATH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 June 2025 | |
DATE OF JUDGMENT: | 1 September 2025 | |
CASE MAY BE CITED AS: | McGrath v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1227 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the spine – pain and suffering conceded – loss of earning capacity – retirement
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013, s335(2)(e)(i) and (ii)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Cuturic v Spotless Facility Services [2018] VCC 889; Madaroski v Colonial Meat Export Pty Ltd [2021] VCC 113; Bendzius v Victorian WorkCover Authority [2019] VCC 915; O’Farrell v Victorian WorkCover Authority [2021] VCC 1270; Cosic v Victorian WorkCover Authority [2021] VCC 767; Brown v Victorian WorkCover Authority [2023] VCC 2231; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
Judgment: Pain and suffering conceded. Application for leave to bring proceedings for loss of earning capacity dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L B R Allan with Ms G Frat | Henry Carus + Associates |
| For the Defendant | Ms S De Guio | Lander & Rogers |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (“the Act”) in relation to injuries suffered over the course of the plaintiff’s employment with labour hire company, Stockdale Personnel Pty Ltd (“the employer”), and, in particular, on 5 February 2021 (“the said date”).
2The plaintiff initially sought leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. While in running, the defendant’s focus was on the economic loss application, during closing addresses, pain and suffering was conceded.[1]
[1] Transcript (“T”) 109
3The relevant impairment or loss of body function is the spine, in particular, the cervical spine.[2]
[2] T1
4The plaintiff bears an overall burden of proof upon the balance of probabilities.
5By s325(2)(b) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
9Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
10Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[3] Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop,[4] Haden Engineering Pty Ltd v McKinnon[5] and Cuturic v Spotless Facility Services[6] in reaching my conclusions.
[3] (2005) 14 VR 622
[4] [2014] VSCA 292 (“Jessop”)
[5] (2010) 31 VR 1
[6] [2018] VCC 889 (“Cuturic”)
12The plaintiff swore three affidavits and was cross-examined. He also relied on affidavits sworn by his friends, Gregory Telley and Julianne O’Callaghan. Also in evidence were medical reports and other material. I have read all the tendered material.
13Pain and suffering ultimately having been conceded, the only issue for determination is the loss of earning capacity application.
14The plaintiff’s case was that he had suffered the requisite 40 per cent loss as he had intended to keep working post injury and had no intention to retire. Further, any current capacity for work is theoretical. In terms of a realistic saleable capacity in the open marketplace, his loss was total at the age of sixty-seven, having worked for fifty years as a printer. Even if it were accepted he could work twelve or fourteen hours a week, the plaintiff would still suffer the requisite 40 per cent loss.[7]
[7] T5
15The defendant’s case was that the plaintiff would have retired some time prior to the hearing date. In any event, he had a capacity for most of the jobs suggested by the vocational assessor and would therefore not suffer the requisite loss. He lacked motivation to continue in the workforce as he is in receipt of income protection payments and also has to care for his very ill wife. Further, he has other health problems that would have affected his ability to work.[8]
[8] T6
Plaintiff’s evidence
16The plaintiff is presently aged sixty-seven, having been born in March 1958. His wife has Huntington’s Disease and no longer works. She has a carer under the NDIS Scheme. Her NDIS package involves gardeners coming once a fortnight, a carer three hours a week and a cleaner once a week.[9]
[9] T21
17The plaintiff attended school to Year 11. He worked as a printer thereafter, having completed an apprenticeship.
18From 2000, he spent about seventeen years working for Colorpak (later known as GPI) until being made redundant in 2017. During that time, he did a Certificate IV in Competitive Manufacture to learn new quicker production techniques.[10]
[10] T10
19His job with Colorpak did not involve very much computer work. He worked on the factory floor full time, hands-on guillotines, folding machines, Heidelberg cylinders and whatever else. He was in a very small department of five people. The job did not really involve scheduling work. That was already done before it came to him. He was the health and safety officer, but did not handle WorkCover claims; HR did that.[11]
[11] T11
20He was made redundant because his role was no longer required. He was probably about fifty-nine at that time. He then took a little bit of time off – a two or three-month holiday. During that time, for a little while he thought about applying directly to an employer. When he returned from his holiday, he just felt, “I think I might just work casual for a while”. Casual did not necessarily mean not full-time hours, but he was committed to work for the employer when it had work for him.[12]
[12] T26
Work with the employer
21The plaintiff retuned to the workforce via the employer, a labour-hire company – an agency he was familiar with from his previous work.[13]
[13] T13
22There were particular aspects of that arrangement with the employer that suited him at the time. It involved work where he had previously had experience and part of the reason was the flexibility it afforded him, and:
“… look, I was coming out of … I was coming out of a job that I’d had for over 40 years … And you know – just having a break, having a holiday, I just felt like slowing down a little bit and let’s have a real good look at this, you know. But unfortunately it never got to that. But I was prepared to take on what I could till I found something that was going to be a bit more rewarding and a bit more permanent.”[14]
[14] T27
23The employer sent him to different places where he did printing work. For about two years before the onset of his symptoms, he had been predominantly working at Ball & Doggett, operating a guillotine. He would be sent somewhere else if they were not busy but that was where he mainly worked.
24That job involved a lot of manual handling of paper – tonnes per day. There was a lot of lifting, bending and twisting. It was the kind of work where you would often get sore around your neck and shoulders. It was heavier work than at the other places he would occasionally be sent by the employer.
25He was on the employer’s books in his printing capacity. They would let him know when work was available and what it involved. He could not remember knocking back a job, but he had the option if the work was too far away.[15]
[15] T25
26He was heading towards a permanent job when COVID came along and he received a call just saying, “Don’t come back”.[16] During COVID he was off work from March to August 2020 on JobKeeper. He then returned to work at Ball & Doggett.
[16] T27
27About Christmas 2020, he had pain in the left side of his neck and shoulder. He thought it might be his heart. He saw his general practitioner (“GP”) and had a rest, and he was okay over Christmas.
28He continued working in January 2021. He had a heavy shift in early February and came home one afternoon and was pretty sore into the evening. He woke up with severe pain in his neck and right shoulder and was having difficulty moving his right arm.[17]
[17] First affidavit sworn on 10 May 2024 (“first affidavit”)
295 February 2021 was the day his neck played up:
“… the pain from that was like I’d just come – I’ve woken up in the ICU unit and, like, all my arm pain, every bit of pain that I had was just magnified 10 times.”[18]
[18] T43
30When he saw his GP on 5 February 2021, his main problem was his neck, not his fingers. That morning, he could not get out of bed. It was like he was paralysed from his neck down, all the way down his right side – “Any type of injury I’ve ever had all came back to me when this happened”, meaning his neck injury.[19]
[19] T44
31He could not recall knocking back work because of his wife’s illness.[20] He was taken through comments made by a number of co-workers from whom there were no affidavits.
[20] T29
32He could remember a manager, Alan Campbell, asking him if he would like to work directly with Ball & Doggett. He was reluctant to commit to that permanent job because of the money that was offered, not that he was reluctant to commit to a permanent job. At the time, he might have said he was happy to continue working casually because of his wife’s needs. Nothing came of the permanent job because it was more lucrative for him to keep working as a casual. He was always happy to keep working when it was suggested he was thinking of eventually slowing down and stopping work anyway, depending on his wife’s condition.[21]
[21] T30
33Alan Campbell might have taken it that he was thinking of retiring, but he was trying “to soften the blow”, in that he would not take the job because Alan Campbell offered pretty poor money.[22]
[22] T31
34He could not recall saying to a co-worker, Justin Reeves, that he stopped work to look after his wife, who was then very ill.[23] He did not know if he “would have said it like that to Justin Reeves”. He told Alan Campbell when he stopped work it was because of pain in his neck.[24]
[23] T31
[24] T32
35He thought he rang Brett Crapper in February 2021 and told him he could not do the job anymore. He could not recall having a conversation with him before that about direct employment with Ball & Doggett. He did not have a conversation with him about planning to finish up work anyway soon to look after his wife, who was sick:
“… not like that though. It was like, you know, ‘I’ve got a problem at home.’ … and I’m working through it and I want to find a job … otherwise I wouldn’t have been there looking for work.”[25]
[25] T33
36He did not think he spoke to Brett at the time he ceased work.[26]
[26] T33
37He has not gone back to work since 4 February 2021. He did not know what to do when he went off work. He went to his doctor, and then got on Centrelink and applied for sickness benefits. He then realised his injury was worse than he originally thought, so he applied for income protection payments, which started in about May or April that year.[27] He has been on these payments since then. He also received a WorkCover top up of $78 a fortnight for the first 130 weeks.[28]
[27] T34
[28] T35, weekly payments ceased from 19 August 2023
38He confirmed the reason he turned down work at Ball & Doggett was he was looking at getting something financially better, full-time employment.[29] He was earning about $31- $35 an hour, depending on the shifts he was doing, and then he was offered $23 an hour, and he thought, “Well, that doesn’t actually make much sense”, and he was better off working casual and committed to the employer unless something else came up somewhere else.[30]
[29] Claim form - $1,162.50 per week
[30] T77
39If there was a better job coming around, or a full-time opportunity, he was always interested in looking at it, but it did not eventuate, and that is why he decided he should just stay there (with the employer) until something better came up financially.[31]
[31] T76-77
Pre-injury medical condition
40He had had other general health issues and a hernia repair in early 2000.
41He has had the same general practitioner at the Hanover Street Medical Clinic since about 1999.
42He had a rotator cuff repair of his right shoulder in 1995, following a shoulder dislocation in 1995. In 2001, he had a problem with his left shoulder, which required surgical repair.
43In about September 2019, he had some right groin pain after lifting at work which settled quite quickly.
Finger clubbing
44He also had problems with clubbing of his fingers but he was able to keep working.
45His GP noted painful finger clubbing in April 2019. It felt like a crushing feeling. The plaintiff demonstrated enlarged joints on his fingers and his nails were rather larger. It was painful, and he saw his GP a number of times for this issue; however, it did not stop him from doing his job.[32]
[32] T41
46He agreed, on 4 January 2021, he was prescribed Mobic and Panadol Osteo for his finger condition. He then said that medication was prescribed “to get out of the pain of (his) neck”. The first time he ever heard of those tablets was when he presented with his neck injury. He could not recall any earlier.[33] He has essentially remained on that medication to date. Prednisolone was prescribed for a short period from 5 February 2021.[34]
[33] T42
[34] T43
Treatment after neck injury
47He saw his GP, Dr Albert, regularly from 5 February 2021. Scans of his right shoulder and neck were carried out four days later. Rheumatologist, Professor Littlejohn, whom he saw on 6 April 2021, recommended conservative treatment.
48The plaintiff had physiotherapy from July 2021 until mid 2022 with Bill Kokkalis, when he started chiropractic treatment and acupuncture.
49During 2022 and 2023, he regularly saw chiropractor, Dr Livis.[35] At about that time, the pain from his neck was going into his lower back. He was also having fortnightly acupuncture.
[35] Treater Questionnaire dated January 2023
50In May 2023, he had an MRI scan of his neck and later that month, saw neurosurgeon, Dr Russell, who had been recommended to him by the WorkCover agent and by Dr Albert. Dr Russell recommended another scan and injection and changed the plaintiff’s medications.
51In early June 2023, the plaintiff had a SPECT scan of his neck and an injection. He saw Dr Russell again later that month. He also saw a pain specialist, Dr Buchanan, who gave him an injection on 15 August 2023 and a nerve block injection on 12 October 2023.
52On 4 December 2023, Dr Russell advised the plaintiff did not need surgery but might if things got worse.
53Dr Buchanan referred him to specialist physiotherapist, Ms Li, whom he saw from 4 March 2024. She taped his shoulder and gave him some exercises.
The situation as at May 2024 (first affidavit sworn)
54The plaintiff was taking Panadol Osteo and amitriptyline. He was still under his GP’s care and having physiotherapy.
55He had pain across the lower part of his neck and shoulders, which went down into his arms. Some days, the left arm was worse and other days the right, and he had weakness in both arms and hands.
56Keeping his neck in the one position or turning it too far in one direction worsened his pain. Reading a book and looking down was a particularly bad movement. He had increased pain after sitting or standing for too long and the only thing that really helped was lying down.
57He had issues waking at night with neck pain and then morning stiffness and tiredness the following day.
58His neck generally felt sore at the end of the day, and towards the end of the day, he usually had pain in his arms.
59Pre injury, he enjoyed playing lawn bowls competitively and was involved in administration but was now not comfortable to bowl and played on a fill-in basis.
60He then had major trouble doing head checks in the car. He had lost a lot of strength and fitness. Gardening and home maintenance, which he had previously enjoyed, were too difficult.
61He missed working as a guillotine operator as he enjoyed working with his hands and was good at it. He liked being part of a team environment. It was his lifelong trade and he was really sad about not being able to do it anymore.
62He would then have liked to be caring more for his wife than he was able to. He felt bad that others, including his daughter or carers, had to help her with dressing, cleaning and other household chores. He was not able to do much because of his neck pain.
63By saying he would like to be caring for his wife more than he was able to, he meant he wished he were fit enough to go on a holiday or do something like that. He wished he were physically fit to do more with her.[36]
[36] T24
64He felt depressed and down although, other than seeing his GP and taking medication, he was not motivated to seek other treatment. His life had changed a lot and he worried about the future and missed his social activities. There just did not seem to be light at the end of the tunnel.
65He had not been back to work. He did not feel up to working as a guillotine operator physically or anything else labour intensive. That role was really all he knew and he would struggle even in a non-physical role because of all his neck issues.
January 2025 (second affidavit sworn)
66He continued to see his neurosurgeon, Mr Russell, regularly. He also saw his pain specialist, Dr Buchanan, and attended a weekly physiotherapy class.[37] He had had one CT injection and three nerve block injections.
[37] Second affidavit sworn 22 January 2025 (“second affidavit”)
67He was also seeing his GP for repeats. He was then taking 25 milligrams of amitriptyline each day. He had Mobic on hand and also Panadol Osteo for really bad pain. His pain was then regularly bad so he took Mobic every two to three weeks and the Panadol Osteo two to three times a week.
68Pain in his neck and shoulders continued, and both arms and hands were still weak.
69He accurately described his level of neck pain at the times he was examined – like 5/10 when he saw CoWork on 15 April 2025.[38]
[38] T73
Shoulder condition
70There is no doubt the pain from his neck travels into his shoulders and he has arm pain pretty much constantly. His rotator cuff repairs settled down his shoulders for a while, but after a while they all came back. He would always work through it and it had always been manageable. His shoulders did not stop him working with Ball & Doggett or anything about that job.[39]
[39] T77
71When he was seen by Professor Littlejohn in 2021, he accurately described his shoulder condition.
72Mr Russell Miller, in 2023, accurately described the plaintiff’s shoulder issues and the resultant restrictions he would have on his work.[40] Shoulder pains from his rotator cuff repair still troubled him and they had worsened over the years.[41]
[40] T15
[41] T16
73If he did not hurt his neck, his shoulders probably would not prevent him from going back to being a guillotine operator.[42]
[42] T78
74He had regular headaches which were like migraines behind both ears, which seemed to come on when the pain was worse.
75Certain postures were still bad for his neck. Sleeping problems continued.
76Early this year he went with mates to Cobram for a few days. He did not do the driving. He found it good to take his mind of things.[43] He does drive locally to do shopping. He does his best, although he has trouble with head checks.
[43] T71
77He described in detail having to pull out of games of lawn bowls and not training anymore. He still feels unfit, flabby and generally weak.
78He continues to have difficulty with household tasks. Now the NDIS package takes care of almost all of them. He does what he can to help care for his wife. He cannot do much due to neck pain, which makes him feel bad.
79He has not been looking for work as he does not feel fit to work at the moment and just cannot work. He has no power in his upper body and all the trouble he has had with his neck would be a real problem, and he felt like he would be a liability at work.
80He only really knows physical work and, even if he knew how to use computers properly, he did not think he could sit at a desk all day with his neck. He undertook a computer course in the early days through the insurer, which did help with his skills, but they are still very basic.
81He did a couple of computer courses while off work, six weeks in Rowville in December 2022 and seven weeks in another course in March 2023 organised by CoWork. These involved basic Microsoft Word and Excel. The first course was “full of grandmothers”, but the course about Excel was interesting in terms of spreadsheets and formulas.[44]
[44] T36
82He could not remember WorkAble offering him further courses after he had finished the earlier two. He could not remember telling them it was not the right time to continue with retraining and he would continue with his volunteer work. He never got pushed on it; they never came back to him.[45] He did not ask whether he could do more courses because he was still in “very high pain” around that time.[46]
[45] T37
[46] T39
83Monthly, he is receiving a bit over $3,000 clear in income protection payments. This is a lot less than he used to be on so they were doing it tough financially. He would much rather be working and earning. He misses working. Printing was all he knew. He misses the hands-on work and being part of a team and feels at a loose end.
Low back pain
84He still has some pain in his back – going into his lower leg – two to three times a day for about half an hour. It is not nearly as bad as his neck pain. By itself, it would not stop him working and does not stop him from doing much around the house, as he just waits it out and gets on with things.
85He agreed he told Professor Bittar, when examined in November 2024, he had intermittent lower back pain. He discovered, if he did not have neck pain, he would probably be feeling the lower back pain more.[47] That back pain does not flare up as much as his neck, which is constant. His back pain flares up every now and then. This pain would probably not affect his ability to cook or do things at home. At times, his back pain has affected his ability to care for his wife. He would not be able to do his job at Ball & Doggett now because of his back pain.[48]
[47] T45
[48] T46
86While he had lower back pain when he was previously working, he was getting through it. He could stretch and do things to make himself get through it and it did not stop him or prevent him from doing any of his work.
87He feels depressed by his pain and what he cannot do anymore and by being inactive. Life just feels like it has stopped. He really does not know what the future holds, which makes him worried. He has not had any mental health treatment because he has not organised himself to do it.
88He swore a third affidavit on 3 June 2025.[49]
[49] Third affidavit
89His current chain of command in terms of treatment is Dr Russell, Dr Buchanan, Superspine with Paoline Li, and Adam, the physiotherapist.[50]
[50] T74
90When he saw Dr Buchanan in February this year, he sent him for another scan of his neck.[51] He then saw him in April, when he recommended another radiofrequency procedure in his neck. A request for that procedure was with WorkCover. He was not optimistic it would help, since the other procedures he had undergone had not made much long-term difference.
[51] T75
91He would be prepared to undergo further radiofrequency denervation. He does not know whether earlier procedures have done anything for him, but he can now feel the pain coming back. He was advised he would need to get one every couple of years. He thought that was where he was getting to right now.[52]
[52] T76
92He continues physiotherapy, the exercises having helped improve his mobility. He is now in transition to self-management at a local gym.
93He takes amitriptyline, 25 milligrams at night; Panadol Osteo, usually eight to twelve per week, and Mobic, perhaps twice a week for bad flare-ups. The former has helped him sleep better but he feels very sleepy in the mornings.
94He takes Mobic and Panadol Osteo when he needs it, or he knows he has something on when he has to go somewhere, like go to court. He takes it for pain everywhere, “But it all comes from here” (indicating his neck).[53]
[53] T75
95Mobic is good because “it is just a good all over one which sort of makes it a bit freer”. It takes (his) mind off it (pointing to his neck), and when it takes his mind off it, he feels a bit better, but, generally, sooner or later he is “going to pay for the consequences of that”.[54]
[54] T79
Bowls
96He volunteers at the local lawn bowls club, usually two to six hours a week, but not on the same day. He enjoys doing so because it gets him out of the house and seeking people, although by the end of the few hours at the club he really feels it in his neck.
97He was cross-examined extensively about his involvement in the bowls club, where he volunteers and still plays.[55]
[55] T48
98He still does the administrative and membership “stuff” as he did pre injury. There was only one week of the year where there was the very busy tournament.[56] He has had to pull out of comp several times over the last few years. He has probably played about ten games this year. He thought he had nearly pulled out for a month over Christmas, having deposed he had pulled out of a third of the games in the latest season.[57] He does not miss games because of his wife’s illness, because he organises everything in advance.[58]
[56] T49
[57] T50
[58] T51
99Because of his shoulder, he will not lift anything he cannot hug to his body. He would not change a barrel of beer at the club because of his neck pain – it overwhelms the shoulder pain. Without neck pain, but his other pain, it was still problematic to play bowls, but he finds a way around it.[59] He does not train anymore.[60]
[59] T54
[60] T55
Current attitude to work
100He does not feel like he can work realistically. He might be able to do a few days here and there in something light, but no more than that. His experience of neck pain after volunteering for a few hours at the club has really confirmed that for him.
101At his age, and given the fact he has only really worked as a printer for fifty years and does not have good office skills, he cannot see himself getting back into proper work.
102The plaintiff responded to the various jobs suggested by WorkAble in 2022.
103He did not think he would have the technical skills to work as a quality officer in a print manufacturing place.[61]
[61] T65
104The only experience he had doing scheduling was a long time ago and he thought the role of “scheduler, manufacturing” was done differently now.
105He would have “to really get caught up with all the technology of all that type of thing” in an order clerk job.
106Volunteering at the bar at the bowls club is not really a job. He is there if someone needs help.
107He is not really that competent with computers.[62] Using Microsoft Excel, it would be okay if he could “put (his) hand up and ask a question every 30 seconds”.[63]
[62] T66
[63] T67
108He doubted whether he could do a desk-based receptionist job for a sporting club. He is too sore; how is he going to get there, as he cannot drive for more than fifteen minutes?[64]
[64] T67
109Barwon Bowling Club is not a suitable job, as they would all be professional, really switched on young people, good at technology. It is a huge club.[65]
[65] T68
110He would have trouble with any sedentary job sitting at a desk. He was having trouble right now sitting in the witness box with his neck pain (indicating that with his hands around his neck). He was just struggling and how would he be if someone hired him and he had to ring up every time a shift came on and said, look I cannot do it today, I am too stiff, that is what is going to happen? It would be a similar situation working as manager/supervisor.[66]
[66] T69
111He agreed he was speculating, as he had not tried these jobs but he would if he thought he could.[67]
[67] T70
112He did not think he would last a shift as a process worker.[68]
[68] T71
Work future
113His wife was diagnosed with Huntington’s Disease in 1998. He has provided her with a great deal of support, in particular, since that condition became really bad about 2022.
114In 2022, “it really hit the fan”.[69]
[69] T59
115His daughter was initially his wife’s carer, having applied for a carer’s pension, because his intention then was just to keep working. He had no plans to stop work in 2020. He was going to work somewhere:[70]
“So that was my intentions, was to work right through until I’m 67 - and to start getting serious about looking for a proper job again which paid proper, you know, like - Ball & Doggett was good and they were good to me, but, yeah, it didn’t really satisfy me financially as such. But I’m not complaining.”[71]
(sic)
[70] T19
[71] T20
116Sometimes his shoulders alone would affect his ability to look after his wife. He would not be able to go back to Ball & Doggett with his shoulder problem.[72]
[72] T47
117He agreed that, particularly since 2022, he had had a lot on his plate, leaving aside his neck pain – “you’re not wrong”. He agreed his wife is not in a good state when she needs him.
118His wife’s situation, his shoulders and back, leaving aside his neck, has never stopped him in the past. He has worked for forty-five years and cannot even count on his hand the actual sick days he took that were not legitimate.[73]
[73] T58
119He “did not really agree”, approaching sixty-five with his wife unwell and his other conditions, he would have stopped work anyway, because he had to care for her, “I actually love working. I love being around people. I like being a part of the team.” It was not in the plan to retire at sixty-five or because of his wife’s condition. “The plan was that (his) daughter would be close by and be her carer so (he) could go to work indefinitely - That was the plan.”[74]
[74] T59
120He disagreed, when he was working at Ball & Doggett, that he was planning to retire. He would not have to leave work because of his wife, because he had enormous help through the NDIS. He did not agree at all he would have had to retire at sixty-five because of the need to care for his wife.[75]
[75] T60
Income protection
121He is getting income protection payments of over $3,000 clear a month.[76] He agreed, as CoWork reported, that he was waiting for this litigation to finish. He was a bit stressed out about it and he would really just like to have it over and done with. “Possibly” he would look for a job after that; he did not know yet. It was very unlikely he would look for work now, because he is sixty-seven. He is at retiring age, but four years ago “it was not the plan to go through all this. It was just to sort of get myself right and go back. But then I realised I’m a lot sorer and I’ve got a lot more problems than I initially thought I had.”[77]
[76] T61
[77] T62
122He agreed, as he was still on income protection payments, what was the point of going to Centrelink to go on the pension.[78]
[78] T63
123When CoWork described him earlier this year as presenting not motivated to return to work, that is probably how he felt on the day. He would like to be doing something, but he did not know anything he would be fit to do.[79]
[79] T64
Summary of the plaintiff’s earnings based on taxation returns
Wage Data
Year ending
Actual Earnings Payer 30 June 2018 $30,381.00 Stockdale Personnel 30 June 2019 $40,780.00 Stockdale Personnel 30 June 2020 $36,029.00
$9,000.00
$4,527.00
Stockdale Personnel
Allowances, tips, fees
Australian government
30 June 2021 $26,492.00
$11,334.00
$9,086.00
Stockdale Personnel
Hannover Life RE Australasia
Australian government
30 June 2022 $45,337.00
$2,804.00
Hannover Life RE Australasia
Department of Health and Human Services
30 June 2023 $45,337.00
$4,046.00
$118.00
Hannover Life RE Australasia
WorkCover payments
Australian government
30 June 2024 $316.00
$49,115.00
WorkCover payments
Hannover Life RE Australasia
Lay evidence
Gregory Telley
124Mr Telley, President of the Oakleigh Bowls Club, swore an affidavit on 4 June 2025 confirming the plaintiff’s involvement in the Club playing bowls and engaging in volunteer activities pre-injury and the difficulties and restrictions he has experienced since engaging in these activities.
Julianne O’Callaghan
125Julianne O’Callaghan swore an affidavit on 4 June 2025. She has known the plaintiff and his wife for about thirty-two years, as their children were part of the same playgroup.
126The plaintiff had an active life before his injury, socially, lawn bowls and also cricket umpiring.
127The plaintiff does his best to care for his wife now with assistance.
128She sees the plaintiff and his wife about once a fortnight as they have moved further away from them. When she sees him, he is in pain and looks worn out and tired.
129Since his injury and his wife’s decline, they have all not been out for dinner as it is just too difficult.
Medical evidence
Treaters
Dr Albert, general practitioner, Hanover
130The plaintiff has been a patient at Hanover since 1999.[80]
[80] Plaintiff’s first affidavit
131In his most recent progress report dated 18 March 2025 in support of the plaintiff’s income protection claim, Dr Albert advised he thought the plaintiff had a capacity for alternative duties. The plaintiff was able to do volunteer work at a local community sports club supervising, light bar work, organising of events, of about eight hours per week.
Professor Littlejohn, rheumatologist
132The plaintiff was referred by Dr Albert to Professor Littlejohn on 5 February 2021, with recent painful neck, right shoulder and upper limb pain.
133He then thought the plaintiff had significant pain and dysfunction. The plaintiff had features of Chronic Pain Syndrome with sensitivity and tightness around the right shoulder girdle and upper limb. He suggested continuing the current treatment plan and the plaintiff continuing with his aerobic fitness. He did not make a review appointment.
Bill Kokkalis, AGOGE Physiotherapy
134Mr Kokkalis first saw the plaintiff on 1 July 2021 complaining of right-sided cervical pain, headaches and right upper limb pain and weakness, having reported that since November 2020, while working as a guillotine operator, he had begun to experience progressive and increasing neck pain with repetitive and heavy work.
135He advised the plaintiff in September 2021 that his previous line of work in the printing industry was not suitable, as the repetitive and heavy nature of the job, while requiring forward head positioning, would most probably worsen his neck injury.
Dr Jeremy Russell, Victoria Neurosurgery
136Dr Russell first saw the plaintiff in May 2023 on referral from Dr Albert.
137He thought the plaintiff had multilevel degenerative neck arthritic changes affecting most levels, with the most pronounced being impingement at C6-7 disc space on the right compressing the exiting C7 nerve.
138As of June 2023, following various investigations and procedures, it appeared that the neck pain and arm symptoms do not correlate with the joint levels, noting, hopefully, Dr Buchanan can significantly improve the situation.
139On review in December 2023, he suggested ongoing conservative treatment.
Dr Guy Buchanan, interventional pain practitioner
140He first saw the plaintiff in June 2023 on referral from Dr Russell.
141He diagnosed cervical facet joint arthropathy – left C3-4 and C5-6. As of September 2024, the worst pain was upper neck and cervicogenic headaches. In June 2023, he requested funding for a diagnostic cervical facet joint injection – left C3-4 and C5-6 and also recommended diagnostic cervical medial branch blocks Left TON/C3-C4 in August that year.
142On the most recent visit in April 2025, the plaintiff’s symptoms remained unchanged with his worst pain region in general being the bilateral neck and trapezius region. The diagnosis was cervical facet joint arthropathy.
Investigations
(i) An x-ray of the cervical spine and ultrasound of the right shoulder on 9 February 2021;
(ii) An MRI scan of the cervical spine on 16 May 2023;
(iii) A nuclear scan of the cervical spine including SPECT CT scan on 1 June 2023;
(iv) A CT-guided right C7 nerve root sleeve injection on 7 June 2023;
(v) An MRI scan of the cervical spine on 25 February 2025.
Medico-legal
Mr Russell Miller, orthopaedic surgeon
143Mr Miller first saw the plaintiff in April 2023, when the plaintiff described his neck was a major problem for him. He had neckache, discomfort and pain radiating into the shoulders, predominantly the right, with feelings of numbness, tingling and weakness in the arms. He also had a longstanding problem with both shoulders for which he had had surgery. He had noted a deterioration in the right, worse with repetitive and overhead activities.
144The plaintiff had a complex psychosocial situation.
145Mr Miller diagnosed a musculoligamentous strain and aggravation of degenerative disease in the cervical spine.
146The current clinical status was regarded as substantially relating to the effects of sustained physical work, a period from late 2017 until February 2021. The period of employment had made a significant contribution to the evolution of cervical spine and shoulder disease.
147Because of his cervical spine, the plaintiff would have difficulty with work that involved repetitive bending and lifting of weights of more than 5 kilograms, and would require him to shift his posture regularly because of his shoulder pain.
148The plaintiff would also have difficulty with repetitive arm actions and above shoulder positions.
149The plaintiff would not be fit to return to his pre-injury duties or any significant full-time or part-time duties and, taking into consideration his age, education and work experience, a return to work would be difficult to achieve.
150Mr Miller re-examined the plaintiff in December 2024.
151The plaintiff’s neck continued to be a major problem and his complaints were similar to the first examination.
152Mr Miller confirmed his views as to the plaintiff’s limited work capacity.
Dr Simone Scovell, consultant occupational physician
153Dr Scovell examined the plaintiff in February 2023.
154On examination, the plaintiff had a loss of range of motion of the cervical spine with a stiff and painful neck. He had radiating pain down the back of his right dominant triceps.
155At the time of undertaking heavy work, the plaintiff developed immediate symptomatology consistent with a cervical spine discogenic injury. The mechanism of injury was clear in the type of work he was undertaking as a guillotine operator.
156She then thought the plaintiff was unable to undertake any manual work at all and that he presented in a gross state of disablement with no current work capacity, and that would be the case unless there was an intervention in his treatment, and he would continue to present in a grossly disabled state and deteriorating fashion for the rest of his life. He then had no capacity for suitable employment.
Professor Richard Bittar, neurosurgeon
157Mr Bittar saw the plaintiff in November 2024.
158The plaintiff then complained of constant neck pain radiating throughout his whole neck which was burning, gnawing, stabbing, dull and throbbing in character with an average severity of three to ten with a maximum of seven out of ten. He also complained of constant arm pain in both arms, intermittent lower back pain and intermittent right leg pain.
159The diagnosis was aggravation of cervical spondylosis and cervical radiculopathy. The plaintiff also most likely had lumbar spondylosis.
160Employment had been a significant contributing factor to the cervical condition, and the cervical spine condition remained work related.
161He recommended further investigations and the plaintiff should be considered for radiofrequency denervation. In the future, he was likely to continue to experience significant pain and disability.
162The plaintiff is incapacitated for his full pre-injury duties and does not have any realistic capacity for suitable employment on a permanent basis.
Dr Clayton Thomas, rehabilitation specialist
163Dr Thomas saw the plaintiff in December 2024.
164The dominant problem was then neck pain and neck stiffness.
165He diagnosed Chronic Pain Syndrome with significant central sensitisation, aggravation of C6-7 disc level with radicular-type pains into the right upper limb but no hard evidence of radiculopathy.
166The onset of the plaintiff’s condition occurred while he was working with the employer as a guillotine operator. Work is therefore a significant contributing factor to the development of his condition.
167The nature of the plaintiff’s Chronic Pain Syndrome is organic and has a substantial organic basis.
168As a consequence of his cervical spine injury alone, excluding any other physical conditions or any other psychiatric condition, the plaintiff is precluded in his ability to push, pull and lift repetitively, bending, reaching, twisting and stooping.
169The plaintiff’s ability to function has been compromised across all domains of his day-to-day functioning.
170A non-operative approach had been adopted. There had been some interventions with no improvement. Surgical intervention will be required if the plaintiff develops firm neurological compromise, particularly of the right C7 nerve.
171The plaintiff cannot work as a guillotine operator. The nature of his residual disability precludes consideration of a return to suitable employment.
Dr Joseph Slesenger, occupation physician
172Dr Slesenger saw the plaintiff in February 2025.
173The plaintiff then complained of residual pain in the lower cervical spine, moderate to severe, with associated pain in the right shoulder and pain throughout the right upper limb and weakness in his right hand.
174He diagnosed soft tissue injury, aggravation of degenerative disease of the cervical spine and chronic neck pain with right upper limb radiating features and also psychological impairment.
175The plaintiff’s employment is plausibly linked to the aggravation of degenerative disease of the cervical spine, noting the manual handling and postural demands and the repetitive work and double handling of weights and the paced nature of his pre-injury duties.
176The plaintiff cannot return to his pre-injury role as the job demands lie outside his capacity.
177He suggested a range of restrictions with no push, pull or carry over 5 kilograms, avoiding sustained forward reaching, over shoulder reaching, repetitive shoulder tasks, forcible pushing and pulling, exposure to whole body vibration and working four hours a day, three days a week.
178Of the suggested jobs, he advised against a return to quality officer, printing manufacturing. Specific worksite assessments were reported for a process worker, order clerk and front desk attendant. He advised against a return to work as a bar attendant. He was generally optimistic the plaintiff could return to work as a scheduler manufacturing, although recommended the job as specific worksite assessment.
179Dr Slesenger provided a further report, having seen Dr Yong’s report and the May 2025 vocational assessment.
180In terms of the new suggested jobs, he noted the receptionist at a sporting club was a sedentary job and the tasks lay within the plaintiff’s capacity limits. He advised against a coordinator role at a bowls sporting club. The plaintiff could return to work as a membership coordinator officer adhering to restrictions, as was the case with duty manger/supervisor, trade scheduler. He advised against car rental sales person.
181He was generally reluctant to assess capacity for work based on voluntary activity as volunteers do not have the same responsibilities as their managers. He further stated that whilst a worker’s ability to engage in a volunteer role is qualitative, indicative of residual capacity, he is reluctant to regard it as a quantitative indicator.
Wage rates
182Flexi Personnel provided current award hourly rates for the following jobs: Receptionist at a sporting club – $24.98; Co Ordinator at a bowls club – $27.17; Membership coordinator – $27.17; Duty manager/supervisor – $28.87; Trade scheduler – $28.69, and Car rental salesperson – $25.66.
183These rates are less than those proposed by Co Work as from a recruitment perspective, the plaintiff would be likely to be paid in accordance with the applicable award as determined by the Fair Work Commission due to re-entering the workforce carrying an injury limiting his ability to work full time and lacking demonstrated transferable skills.
Payslips
184When he last worked, the plaintiff was doing full-time hours when available and being paid $34.10 or $31.00 per hour, depending on what shift. He was also paid a shift allowance and worked the hours that were available.[81]
[81] First affidavit
185The employer’s pay records reveal for the weeks worked between 4 November 2020 and 24 January 2021, the plaintiff was paid between $31.00 and $34.10 per hour. He worked one week for 30.5 hours and the remaining weeks 37.50 hours ($1,162 gross/$944.50 net).
186To 27 January 2021, the plaintiff had earned $25,376.13 in the 2020-2021 financial year.
Defendant’s medico-legal evidence
Dr Andrew Muir, consultant in pain management
187Dr Muir examined the plaintiff in February 2023.
188He thought the plaintiff was suffering from a chronic pain syndrome.
189The plaintiff may have a capacity for part-time sedentary employment, noting he was currently doing part-time volunteer work. He had been successful in doing that to date. It was not certain to what extent he could transfer this to paid employment and how much he would be able to work on a regular and reliable basis.
190The no current work capacity rests on the plaintiff’s current situation. He should be referred to a neurosurgeon for evaluation of his cervical spine and also to a pain management physician.
191In a supplementary report dated 17 April 2023, he advised he considered the plaintiff was likely to be capable of working as a quality officer in either printing or manufacturing and did not require retraining. The list of activities of order clerk, scheduler and front desk attendant likely lay within his physical capacities, but the report suggested retraining would be beneficial if the plaintiff were embarking upon those activities. Accordingly, and subject to retraining, he believed they were also within the plaintiff’s capacity.
Dr Loretta Reiter, consultant rheumatologist
192Dr Reiter examined the plaintiff in March 2025.
193The plaintiff advised that he then was overall 30 per cent better, although he still has constant upper and lower cervical spine pain.
194The plaintiff has significant changes of cervical and spine degenerative disease involving multiple levels, but in particular at C6-7 level, with a disc osteophyte complex which is underlying, constitutional and age related.
195Given the nature of his work, where he was picking up 6 to 7-kilogram parcels of paper, lifting and twisting repetitively, this most likely aggravated his underlying degenerative cervical spine disease.
196The plaintiff is not fit for his pre-injury duties, not even with another employer.
197The vocational options identified by Work Able in the 2022 and 2023 reports represent suitable employment from a physical perspective. There are no restrictions and the plaintiff could work four hours a day, five days a week.
Dr Dominic Yong, occupational physician
198Dr Yong examined the plaintiff in March 2025.
199The plaintiff reported he was predominantly troubled by pain in the right side of his neck, which radiated to his right upper arm and was also present in his right arm. He had mild, left-sided neck pain, radiating down his left upper limb to his lower arm.
200The plaintiff suffered an aggravation of cervical spondylosis with persisting cervical spine dysfunction and radicular symptoms.
201Employment has been a significant contributing factor to the onset of the cervical spine condition.
202The plaintiff does not have a current capacity to work his pre-injury duties and hours.
203The suggested role of quality officer (printing, manufacturing) would require individual assessment to determine if it complied with the restrictions he suggested and thus would not be considered suitable to perform.
204The role of order clerk was likely to comply with restrictions and he considered suitable. The plaintiff would require further formal retraining courses to do the computer work.
205Given the nature of the plaintiff’s condition, the period of time since onset, the nature of volunteering tasks and the period of time out of the workforce, the plaintiff could do these tasks with an initial reduction in working hours which would be his current usual volunteer hours of six hours a week. This could increase on a gradual basis to his maximal volunteer hours of fourteen hours a week over two to three months. It is likely the plaintiff’s working hours would not exceed these weekly working hours unless there is an improvement with further medical treatment.
206The scheduler, manufacturer role would be considered suitable to perform.
207A bar attendant role would be unlikely to comply with the recommended restrictions and was not suitable.
208The role of front desk attendant, hotel function centre, would require individual assessment to determine if it complied with the recommended restrictions and thus would not be considered suitable to perform.
209The process worker role was unlikely to comply with recommended restrictions and thus would not be considered suitable to perform.
210He anticipated retraining would comply with the restrictions, thus would be considered suitable to perform.
211The plaintiff can do tasks within the following restrictions: avoid repetitive neck movements, repeated awkward neck postures, repeated firm pushing and pulling, lifting more than four kilograms on a repetitive basis, and reduction in working hours.
Vocational evidence
212Work Able provided a Labour Market Analysis report in April 2023.
213The following suitable employment options were identified: quality officer, printing manufacturing; process worker, pharmaceutical or lightweight products; order clerk; scheduler (manufacturing); bar attendant, and front desk attendant, hotel function centre.
214CoWork provided a vocational assessment and labour market analysis report in May 2025 following an interview with the plaintiff on 15 April 2025. The assessor wrote:
“When I asked Mr McGrath if he thinks he will return to work, he replied: ‘I don’t see that happening … I can’t see how I can’. Asked if he can see himself doing any type of work, he responded: ‘I can’t see how I can; I wish I could, I wish I was 20 years younger, I don’t know, it’s just all caught up with me’. When I asked what he considers to be his main barriers to work, he cited: ‘Well I’ve got physical injuries for a start, don’t think I can sit/stand for a long period of time … pain … and I’m having difficulty driving, and that doesn’t even bring my wife’s stuff into it’. He considers he is eligible for the aged pension, ‘I would have guessed so’. He added, ‘All I’m waiting for is all this [litigation] to finish. I’m still on income protection too … I can stay on that till I’m 70 … I’ve been on it now for 4 years … what’s the point of me going to Centrelink to go on the pension?’ Asked what he thinks he will do for income after age 70, he replied: ‘I don’t know what I’m gonna do, Jo; I’ve got my wife’s situation, I’ve got my own injury situation … I don’t think I’m ever gonna get over this; I know that sounds negative but I’ve damn tried … even Dr Buchanan says you’re never gonna get rid of this; we can try to make it better’. He became emotional as he said. ‘People telling me to go and get a job; it’s not really looking possible. I just want the legal side of this over’. He said that he was told litigation would be finalised ‘last June but then the other mob’s put extensions … I’m told by my lawyer it’ll be June. It’s really out of my hands now.
Mr McGrath does not present as motivated to return to the workforce.”
215Potentially suitable occupations on behalf of the plaintiff were: receptionist at a sporting club, coordinator at a bowls club/sporting club, membership coordinator/officer, duty manager/supervisor, trade scheduler and car rental sales person.
The issues
216Pain and suffering having been conceded by the defendant during counsels’ closing, the only issue for determination is the loss of earning capacity application.
217In this regard, there were two issues: whether the plaintiff would have retired and therefore has no loss of earning capacity as at the hearing date and continuing permanently beyond that date. If he would still have been working, the plaintiff must establish a loss of earning capacity of 40 per cent.
The law
218Section s325(2)(e)(ii) of the Act imposes a duty on the plaintiff to establish that he suffered a loss of earning capacity which “will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more”.
219In Cuturic,[82] leave was refused to commence a proceeding for damages for economic loss where his Honour Judge Saccardo found the evidence did not establish the plaintiff would have continued to work in a part-time capacity after attaining seventy. His Honour was also not satisfied at the date of the hearing, the plaintiff would be earning income by engaging in part-time employment.
[82] Supra
220In that case, the plaintiff ceased work when she was sixty-seven and had an impressive work history, which his Honour described as extraordinarily commendable.
221The plaintiff was aged seventy at the time of the application in June 2018, having attained that age in November the previous year.
222The plaintiff’s affidavit contained no suggestion she had any plan to work after she reached seventy. Until she gave evidence, there was no evidence which established on balance she would have continued in part-time work after seventy.
223In the course of her evidence, the plaintiff gave a different account and explained she intended to continue part-time work after her seventieth birthday.
224The plaintiff, having failed to establish on balance she would have continued to work after retirement age, it followed the Court was not satisfied she has established:
(a) that she would have been earning any income at the present time;
(b) that incapacity for the work with which the plaintiff has presented since the onset of injury which caused her to cease her employment with the defendant at the present time (2015):
(i)operates at the present time; or
(ii)will operate into the future;
so as to be productive of any financial loss to her.
225His Honour held that the plaintiff must establish that, at the present date, the effect of the incapacity for work the subject of a compensable injury is to give rise to such a loss of earning capacity.
226Further, there is no issue that that section requires assessment of economic consequences to the plaintiff be made at the present time. His Honour was also satisfied that that section operated so as to require the plaintiff in that case to establish that the plaintiff “will, after the date of the decision or hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more”.
227As the plaintiff had failed to establish, on balance, she would have continued to work after retirement, his Honour was not satisfied she had established she would be earning any income at the time of the hearing or in the future so as to be productive of any financial loss to her.
228Cuturic has been followed in this Court in Madaroski v Colonial Meat Export Pty Ltd,[83] Bendzius v Victorian WorkCover Authority[84] and also in O’Farrell v Victorian WorkCover Authority.[85] Judge O’Neill came to a different conclusion in Cosic v Victorian WorkCover Authority.[86]
[83] [2021] VCC 113
[84] [2019] VCC 915 per Judge Lauritsen
[85] [2021] VCC 1270
[86] [2021] VCC 767. In Brown v Victorian WorkCover Authority [2023] VCC 2231 – I granted leave
Defendant’s submissions
229The plaintiff’s evidence about retirement has been inconsistent. While the Court had noted he had been a credible witness and that was probably a fair assessment, this point was still made. While he is generally a credible witness, there is an unreliability in relation to that part of his evidence, a similar situation that Judge Saccardo found in Cuturic.
230The cases demonstrate determination of the issue does fall on the facts.[87]
[87] T89
231In the present application, the plaintiff is now sixty-seven, and was just shy of sixty-three when he stopped working in February 2021. Very shortly thereafter, there was a substantial worsening of his wife’s condition, requiring care.[88]
[88] T89
232In none of the plaintiff’s three affidavits does he depose he would work past sixty, rather, in his first affidavit, he said he would like to be caring more for his wife when he was able to. In his second affidavit, he deposed he was feeling bad because he could not do more for her, the evidence being that he was already doing so much.[89]
[89] T89
233While there was evidence that the plaintiff was sad about not being able to work anymore, the evidence says nothing about intentions to continue work, or address the issue of retirement, leaving aside the injury.[90]
[90] T90
234Against this background was the worsening of the plaintiff’s wife’s condition, confirmed by lay witness Julianne O’Callaghan. There is no dispute the plaintiff’s wife requires substantial care. It may not have been the plaintiff’s plan to retire, but certainly it was the case by the time his condition worsened.[91]
[91] T90
235Taking into account the cases relied upon, there was no loss of earning capacity and on the Cuturic analysis, the Court should find the plaintiff would have stopped working in either 2021 or shortly thereafter in any event by the time he approached sixty-five, and certainly before today’s date.[92]
[92] T90
236The Court must look at all the evidence, not just what the plaintiff eventually says at hearing.[93] In fact, what he actually said was stopping work at sixty-seven – not helpful to this application – when describing his intentions in 2020.[94] It is not only what the plaintiff says, the issue has to be looked at globally in terms of his domestic and medical conditions.[95]
[93] T92
[94] T93
[95] T94
237The wording in the section is mandatory. It must be satisfied, along with the other provisions, to find in favour of the plaintiff in relation to loss of earning capacity, which is clear from the way the section starts “… a court must not grant leave … unless the worker establishes [loss of earning capacity – unless the requirements are met]”.
The “without injury” figure
238The plaintiff should not be allowed to rely on the payslips provided. The more appropriate “without injury” earnings figure was based on his tax returns, with his highest income in the relevant period being about $41,000 in the 2018-2019 financial year.[96]
[96] T95
239The payslips in the two-month period leading to the injury was in a small pocket of time and the Court’s assessment should be on an annualised basis that best reflects the plaintiff’s “without injury” earning capacity.
240The plaintiff’s own evidence was that arrangement with the employer was suitable for him because of its flexibility. Further, his own evidence was he does not remember ever knocking back work. This is not a normal employment situation, it is a labour-hire one, which the plaintiff had gone into by choice because it suited him at the time.[97]
[97] T96
241In Jessop, the Court referred to the Second Reading Speech for the Accident Compensation (Common Law and Benefits) Bill 2000 which contains the following statements:
“‘… consistent with that understanding, in the three-year period prior to the injury, the court may have regard to the vagaries of the worker’s pre-injury employment history and the impact of the worker’s social, health and other factors on the capacity to work in that period. In respect of the three years after the injury, the earnings and/or capacity for earnings but for the injury will enable the court to have regard to the probable increases or decreases in earnings that may have occurred or the achievement of other employment opportunities within that time had the injury not occurred.’”[98]
[98]Jessop at paragraph [22]
242On that basis, the 2018-2019 figure of nearly $41,000 was the appropriate “without injury” earnings.[99]
Other relevant medical conditions – Peak Engineering[100]
[99] T97
[100] Peak Engineering & Anor v McKenzie [2014] VSCA 67
243There was another obvious aspect if the retirement argument was rejected, namely the question of the plaintiff’s “without injury” earning capacity given his pre-injury existing health concerns, clubbing of his finger joints, worsening of shoulder problems and also the need to care for his wife.[101]
[101] T98
244There is also the issue of the plaintiff’s shoulders, which were a separate injury, that had continued to trouble him and had worsened, as he acknowledged in the witness box. Mr Miller in both 2023 and 2025 reports longstanding problems with both shoulders and a deterioration, and difficulties with work, in particular repetitive arm actions and over the shoulder activities.[102]
[102] T107
245Professor Bittar also noted pain in both arms encompassing the hands, although it is unclear from that report whether it is radiating from the neck or a separate shoulder injury.[103]
[103] T107
246There was also a Peak Engineering[104] issue with the plaintiff’s lower back issues “muddying the waters”.[105]
[104] Ibid
[105] T109-110
The hours and the figures
247Counsel provided a detailed table setting out what hours the plaintiff would need to work, based on its $41,000 figure to exceed 60 per cent ($471.00). These were the jobs set out in the May 2025 CoWork assessment, the September 2022 transferable skill analysis and the April 2025 labour market analysis.[106]
[106] T99
248It was conceded that Dr Yong thought the maximal volunteer hours suitable was fourteen hours a week, reaching that target over two to three months. Dr Raita, rheumatologist, thought the plaintiff had a capacity for certain jobs four hours a day, five days a week, thus twenty hours a week in total.[107]
[107] T100
249The plaintiff’s own evidence supported some capacity with his involvement in lawn bowls and what he did at home.[108]
[108] T102
250Some of the plaintiff’s treaters considered he had a residual capacity. Dr Livis, chiropractor, in January 2023, thought a number of jobs were suitable. Dr Slesenger was conservative in his twelve hours a week and did not fully appreciate the level of the plaintiff’s activity. On that basis, his suggestion of twelve hours a week was not an accurate indicator.[109]
[109] T104
251Dr Buchanan, the treating pain specialist, who reviewed the plaintiff in April 2024 and made comments about the benefit of the finalisation of legal proceedings, did not provide a report nor did the physiotherapist, Ms Li.[110]
[110] T105
252Occupational physician, Dr Scovell, who did not provide details of any suitable work hours, was not aware of the plaintiff’s activities at the bowling club and at home, nor was Dr Thomas.[111]
[111] T107
253Overall, the Flexi Personnel report was of little or no assistance when coming to assess the figures.[112] Some of the figures did not help the plaintiff, based on the twenty-hour estimate proposed by the rheumatologist. Those figures were conservative anyway because they did not include penalties and allowances, based on entry rates only.
[112] T108
Motivation and income protection
254The plaintiff’s lack of motivation identified by the CoWork vocational assessor does not assist the core of his case in demonstrating a genuine incapacity for suitable employment by reason of his neck injury only.[113]
Plaintiff’s submissions
[113] T105
Work future
255This issue is to be determined on the whole of the issue, not just the whole of the viva voce evidence, but all of it.
256The Court should find on balance, but for injury, the plaintiff would still be working as a print finisher, whether with the employer, or elsewhere. This was clearly his intention when one read his viva voce evidence on the whole, although he did say something about sixty-seven at one stage.[114]
[114] T119
257However, the plaintiff said a number of times, as at the time of injury and going off work, he was open to and indeed looking for higher paid work elsewhere, and that is why he turned down the full-time job.[115] He resisted he would have retired because of his wife’s health or comorbidities, or that he was happy in retirement. He specifically said he planned to work indefinitely.[116]
[115] T119
[116] T118
258The plaintiff is clearly a man who had a good work ethic over a long period. While he is on income protection payments, he would much rather be working and earning – “You get more out of work than money.”[117]
[117] T120
259The plaintiff said repeatedly that, but for the injury, he would and could still be working, albeit he did not have a definite retirement plan. The issue is, having regard to the whole of the evidence, it could be said that, on balance, he would by now have retired, and that is an evidentiary question which should be answered in the negative.[118]
[118] T121
260The plaintiff relied on the decision of Judge O’Neill of Cosic v Victorian WorkCover Authority.[119] In that case, his Honour granted leave to bring proceedings for loss of earning capacity, having been satisfied of the plaintiff’s work record, her love of work, the desire to work and the fact she had time to work, and she would have continued to work. His Honour also commented that retirement age is far more flexible in the modern work environment.[120]
[119] Supra at paragraph [65]
[120] T122
261The Court of Appeal have said frequently, this is a “gateway” application.[121]
[121] T122
262Cuturic was wrongly decided and should not be followed, acknowledging the Court of Appeal had never dealt with this issue.[122]
[122] T122
263The fallacy or illogicality of Cuturic can be illustrated quite simply; that if a plaintiff does not have a chance to have his case heard before retirement, he will not have a loss of earning capacity claim. So, whether a plaintiff obtained leave to proceed, it will all depend on the timing of the hearing date and of course, the plaintiff also had to establish permanency.[123]
[123] T123
264It was acknowledged that at times the Court of Appeal had said, “well, look, if you interpret the provisions this way, they are unfair, but, nevertheless, that is so clear that is how they have to be interpreted,” but, here, Cuturic was wrong.[124]
[124] T124
265The only way s325 could be sensibly interpreted is if one says productive of financial loss of 40 per cent or more means in toto since the injury was suffered. It was conceded there was nothing in the section to that effect, that could split it, but neither does it say, which will be productive of financial loss of 40 per cent or more suffered after the hearing date.
266Factually the plaintiff had to defeat the Cuturic argument – “That was the least controversial way home and the second avenue was Cuturic had been wrongly decided.”
267Further, the plaintiff had said there was a chance he might try to have a go and look at work in the future, not completely shutting out the possibility of doing so, which again goes to the fact he is a hardworking man. If he does so, it will be probably something similar to what he was doing, similar hours, very, very light.[125]
[125]T128
268Unlike in the other cases, where Cuturic had been applied, it is quite clear the only reason the plaintiff stopped work in this case was his neck, albeit some issues with his fingers.[126]
[126]T129
“Without injury” earnings figure
269The plaintiff is a man with an exemplary work history, only having had about five sick days when he was in full-time employment.
270He had the capacity to work full hours, as the payslips set out. The payslips from early November 2020 to 24 January 2021 set out an hourly rate of $34.10 with the plaintiff working up to 37.5 hours per week. $1,162 was the appropriate figure, being 37.5 hours at $31.00.[127] Sixty per cent thereof is $697.50 gross per week.[128]
[127] T113
[128] T5
271It was not just a matter of picking the best payslips, the plaintiff had a capacity to work these hours.[129]
[129] T114
272The Court should find the plaintiff had the capacity to work full time and would work full time when such work was available.[130] He was doing so in the months leading up to the cessation of his work.
[130]Jessop (supra) and Acir v Frosster Pty Ltd [2009] VSC 454
Capacity
273The plaintiff might have a theoretical capacity, but those who endorse various jobs do not endorse them without individual assessment, including Dr Yong, who was perhaps more pessimistic than Dr Slesenger.[131] The plaintiff’s capacity is for volunteering.
[131] T114
274GP, Dr Albert, in his most recent report of 18 March 2025, stated the plaintiff had a capacity for part-time hours, able to do volunteer work at local community sport clubs supervising light bar work, serving and organising events about eight hours per week.[132]
[132] T117
275Even if the Court did not accept a total incapacity scenario, the plaintiff ‘s residual capacity would be twelve, or at most, fourteen hours per week.[133]
[133] T117
276The CoWork rates were an average and included workers with a lot of experience, whereas the plaintiff would fall at the absolute bottom end of the range, as he has not had any experience in a number of the suggested jobs.[134]
[134] T118
277The Court should prefer the wage rates in the Flexi Personnel report, having regard to the plaintiff’s age and lack of experience in any of the identified roles.
278In a number of County Court cases a similar debate was decided in favour of the award rate set out in a Flexi Personnel report over average wages or wage ranges. The case law relied on universally comes down on the side of entry level.[135]
[135] T118
279On the plaintiff’s figures, the plaintiff would suffer the requisite loss unless he was able to work at least nineteen hours in one suggested job and for most suggested jobs, up to twenty-six hours a week.
Findings
280Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
281The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
282The former must be calculated by reference to the six-year period specified in s325(2)(f).
283“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
284It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
285The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[136]
[136] Barwon Spinners Pty Ltd & Ors v Podolak (supra)
286The parties provided different “without injury” earnings figures. The defendant what was reflected in the 2018-2019 tax return – nearly $41,000. Sixty per cent of which is $471. The plaintiff’s higher figure of $697 based on his pre-injury earning “capacity”.[137]
[137] Jessop
Findings
287Before considering the “without injury” earnings and differing medical opinion as to the plaintiff’s current work capacity, the plaintiff must establish that he is suffering a loss of earning capacity as at the date of hearing and which will continue permanently thereafter.
288The wording of s325(2)(e)(i) and (ii) is mandatory.
289Therefore, to obtain leave to bring proceedings for damages for loss of earning capacity, the plaintiff must first establish that but for the compensable injury, he would still be working – as a print finisher or otherwise. This involves consideration of his plans for his work future/retirement but for his injury and any other relevant evidence in relation thereto.
290I had no issues with the plaintiff’s credit. I found him to be a very honest, truthful witness.[138] His credit was not challenged by the defendant.
[138] T82
291However, the plaintiff’s three affidavits were silent as to how long he intended to work prior to his injury. He made no mention of any intended retirement age whether sixty-five, sixty-seven, seventy or beyond.
292There was no other evidence from that industry of the usual retirement age for a print finisher.
293While he resisted numerous suggestions in cross-examination he would not be working now anyway at the age of sixty-seven because of his wife’s significant illness or his other health issues, and his evidence that he planned to work “indefinitely”, with his daughter being his wife’s carer. The plaintiff openly stated that in 2020, his intention then was just to keep working. He had no plans to stop work in 2020. He was going to work somewhere:[139]
“So that was my intentions, was to work right through until I’m 67 - and to start getting serious about looking for a proper job again which paid proper, you know, like - Ball & Doggett was good and they were good to me, but, yeah, it didn’t really satisfy me financially as such. But I’m not complaining.”[140]
[139] T19
[140] T20
294Albeit one answer, it was directly on point. The plaintiff volunteered a retirement age and significantly used the words “right through” until he was sixty-seven – his age at the date of hearing.
295Further, the plaintiff “did not really agree” he would have stopped work at sixty-five because he had to care for his wife.
296Having said himself that he would have finished work at sixty-seven, there is no other evidence that he intended to continue working beyond that age. There is no evidence from anyone in his industry of the usual retirement age for print finishers or whether print finishers work beyond sixty-five.
297The Court must consider all the evidence – the plaintiff’s affidavits, his viva voce evidence and the evidence as to his domestic and medical situation.
298While I accept the plaintiff has a good work ethic, he has not worked on a full-time basis with one employer since being made redundant from Colorpak in 2017 when aged fifty-nine.
299He may have had the capacity to work a full week with the employer, as some of his payslips indicated, but his tax returns reveal his highest earnings on an annual basis with the employer to be $41,000 in the 2018-2019 financial year, having been there for four years pre injury.
300Understandably, the plaintiff did not take up the full-time job with Ball & Doggett as it involved less pay than his was earning on his casual rates.
301However, while his evidence was he was contemplating a return to the mainstream workforce, he had taken no steps in that direction before his injury, having worked with the employer labour-hire firm for four years, largely for the same company, Ball & Doggett – an arrangement that suited him as it gave him “flexibility”. In that time, he had not taken up other work that was “more rewarding or permanent”.
302Also relevant, although not determinative of whether the plaintiff would have continued working to the date of hearing and permanently thereafter, was his wife’s serious illness from 2022 and his continuing receipt of income protection payments.
303The plaintiff continues to enjoy playing golf and volunteering at the Bowls Club for up to six hours per week.
304Taking into account all the evidence, I am not satisfied that the plaintiff has suffered any loss of earning capacity as at the date of hearing as he now would not be working. I am also not satisfied that he will continue permanently to have any loss after the hearing – both mandatory provisions. Accordingly, his application must fail.
305The plaintiff has failed to establish that, at the present date, and into the future, the effect of his incapacity for work the subject of his compensable injury is to give rise to a loss of earning capacity.
306Although this is a gateway application, the provisions of the Act are mandatory.
307While the proper reading of this section may be unfair to older workers who have no control of when their leave application is heard, there is no authority that a different approach to the section is permissible. The issue has not been considered by the Court of Appeal.[141]
[141] T123
308The “sensible” interpretation suggested by the plaintiff – saying productive of financial loss of 40 per cent or more means in toto since the injury was suffered – is not what the section provides.
309Cuturic was correctly decided.
310Having made this finding, it is not necessary to fix a “without injury” earnings figure or consider issue of capacity.
311Accordingly, the loss of earnings application is dismissed.
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