Robertson v Victorian WorkCover Authority
[2025] VCC 1632
•12 November 2025
| +IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-05041
| HARLEY ROBERTSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October 2025 | |
DATE OF JUDGMENT: | 12 November 2025 | |
CASE MAY BE CITED AS: | Robertson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1632 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury of the spine – injury to the right shoulder – worker under 26 years of age – pecuniary loss consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:New South Wales v Moss (2000) 54 NSWLR 536; Margriplis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15; Meadows v Lichmore [2013] VSCA 201; Findlay v Transport Accident Commission [2025] VSCA 126; Dressing v Porter [2006] VSCA 215.
Judgment: Leave granted to the plaintiff to commence a common law proceeding for pain and suffering and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | Arnold, Thomas & Becker |
| For the Defendant | Mr A Macnab SC with Ms V McCloud | Minter Ellison |
HIS HONOUR:
This proceeding
1This is a “serious injury” application brought by Harley Robertson (“the plaintiff”) pursuant to s328 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2The plaintiff claims to have suffered a “serious injury” to either the spine or his right shoulder.
3Before the hearing commenced, based on the contents of the Court Books, it appeared there was a contest in respect to many issues, including whether the plaintiff had suffered a “compensable injury”. But thankfully at the commencement of the hearing, the parties were able to confine the dispute to whether the plaintiff was entitled to the leave of the Court to commence a proceeding for pecuniary loss damages because the defendant conceded that the plaintiff had pain and suffering consequences because of a “serious injury”.[1] That concession meant that issues to do with compensable injury and the circumstances of injury fell away.
[1]Transcript (“T”) 4, Lines (“L”) 30
4In respect to remaining issues, the defendant contended that there remained issues of disentangling each physical injury, and a psychiatric condition, and how that impacted the plaintiff’s claim for loss of earning capacity. The defendant contended that no doctor had attended to that task.[2]
[2]T 7, L 24-29
Background
5The plaintiff was born in 1995 and was twenty-nine years of age as at the date of the hearing. He is right-handed.
6The plaintiff had an unsettled upbringing. He left school at in 2011 at age sixteen. After leaving school he obtained work in various fast-food franchises. He then got most of the way through studying a Victorian Certificate of Advanced Learning, to improve his reading and writing, but his unsettled home life meant that he did not finish the course.
7The plaintiff has an interest in what might loosely be described as “old cars”, including buying, restoring and selling classics such as the Holden Commodore. Because of his interest in cars, in approximately 2017 he completed a pre-apprenticeship Certificate II in Mechanics at Gippsland TAFE. He then tried unsuccessfully to find an apprenticeship as a mechanic.
8Then in mid-June 2017, the plaintiff got a labouring job with WhiteBoards Australia Pty Ltd (“the employer”) at a factory in Hallam, where his father worked, and where his father’s father-in-law, was the manager. The plaintiff had been asked to come in and give them some help, instead the employer gave him a job on a full-time basis.
9In an affidavit sworn 22 July 2021,[3] the plaintiff described in detail the nature of the heavy manual work that he did for the employer, making whiteboards at the factory in Hallam and how he often worked more than the standard thirty-eight hour week.
[3]Plaintiff Court Book (“PCB”) 6
10The parties agree that for the financial year ended 30 June 2019, the plaintiff earned $68,903 gross from his work with the employer.
11In the course of his work with the employer, the plaintiff developed symptoms in his right shoulder and back, culminating in approximately June 2019, before he lodged a claim for compensation on 27 June 2019.
12In this proceeding, there is no issue that the plaintiff suffered compensable injury to the spine or the right shoulder. As mentioned, the defendant conceded that the plaintiff had suffered a “serious injury” in respect to pain and suffering consequences. About that I asked whether the concession was made in respect to one of the injuries and the defendant responded, “Just conceded”.[4]
[4]T 7, L 22
13Returning to the narrative, after the onset of symptoms the plaintiff went off work. He had conservative treatment and investigations for his right shoulder.
14The plaintiff attempted a return to work on 20 January 2020. As part of that return to work he did some limited office-type duties. He said that the return to work aggravated his symptoms and he ceased work again on 17 March 2020. He has not worked since then.
15In November 2020, the plaintiff was referred to the orthopaedic surgeon, Mr Ash Chehata. He had further investigations of his right shoulder before Mr Chehata performed a decompression and excision of the right AC joint on 10 March 2021.
16Despite shoulder surgery, the plaintiff complains of ongoing pain and restriction in the use of his right shoulder/dominant right arm.
17By late 2021 the plaintiff had been referred for assessment by Mr Patrick Chan, neurosurgeon, because of ongoing pain in his spine. Mr Chan diagnosed mechanical axial neck pain, right cervical brachialgia and persistent mechanical lower back pain with left sciatica.[5]
[5]PCB 153
18For his ongoing spine symptoms, the plaintiff has been referred for pain management assessment with Dr Andrew Muir and had an epidural injection on 4 November 2022. The plaintiff then had L5-S1 facet injections on 13 July 2023.
19The plaintiff’s ongoing treatment has been conservative. He has regular physiotherapy. His general practitioner, Dr Jin Kee, manages his ongoing treatment, including medication for pain.
20In addition to ongoing physical symptoms, the plaintiff has significant ongoing psychological issues, in part related to his work injuries. According to Dr Kee, the plaintiff has required mental health assessment, medications for his mental health and has suffered significant psychological symptoms, including suicidal ideation.
21The plaintiff is not working, and he is not looking for work. He contends that realistically, because of either his right shoulder injury, or his spine injury, he has no capacity for work.
22I note in passing that the emphasis in the plaintiff’s oral evidence and in submissions was on the injury to his spine, perhaps more particularly the lumbar spine.
23I also note in passing that the plaintiff did not pursue a “serious injury” because of any related psychiatric condition. In closing submissions, the defendant focused on the impact of the plaintiff’s psychiatric condition on his capacity for work, as one of the ‘disentangling’ issues in the proceeding.
Legal principles
24For this proceeding, the legal principles are mostly not in dispute.
25It is the plaintiff who has the overall onus to establish the ongoing impairment and impairment consequences from either the claimed injury to his spine, or the claimed injury to his right shoulder, bearing in mind that those injuries cannot be combined for an assessment of “serious injury”.
26There is no need to discuss the test for pain and suffering “serious injury” as that was conceded.
27Dealing with the test for pecuniary loss serious injury, because the plaintiff was a worker under the age of 26 at the date of injury, to succeed for pecuniary loss he must establish pursuant to s325(2)(e)(ii) of the Act that he has a loss of earning capacity which will be productive of financial loss of 40 per cent or more on a permanent basis.
28In addition, because the plaintiff was under 26 years of age when injured, the statutory formula set out in s325(2)(e), (i), (f) and (g) of the Act does not apply. Therefore, the analysis of loss of earning capacity is to be undertaken in accordance with common law principles, as set out in cases such as State of New South Wales v Moss.[6] While the analysis of loss of earning capacity is to be undertaken based on common law principles, the onus remains on the plaintiff to establish that based on the evidence he has the requisite 40 per cent loss.
[6](2000) 54 NSWLR 536 (“Moss”)
29However, as was confirmed by the Court of Appeal in Margriplis-Hampton v Spendwatt Pty Ltd,[7] the assessment is one that for a young person may often have to be made based on imperfect evidence and may require broad assessments.
[7][2022] VSCA 15
30Overall, the enquiry is directed to the plaintiff’s residual earning capacity, and the earning capacity that he would have had but for being injured.
The plaintiff’s evidence
The plaintiff’s affidavit evidence
31Because pain and suffering “serious injury” was conceded, I shall focus on the plaintiff’s evidence about work capacity. But in respect to pain and suffering, in his first affidavit sworn 22 July 2021,[8] the plaintiff described ongoing conservative treatment to both his right shoulder and spine (back), including physiotherapy treatment at Gippsland Physiotherapy.
[8]PCB 6
32About his symptoms, he described pain in his back, including bad flareups. He described a loss of strength in the right arm, particularly above shoulder height, and difficulty with heavy lifting. He described how his injuries impacted on his ability to play with his young daughter, and interfered with his passion of buying old cars and doing them up.
33Then in a second affidavit sworn 8 June 2022,[9] the plaintiff described the referral to Mr Chan, further radiology of his spine and treatment with Dr Andrew Muir. He described ongoing pain in his shoulder and back, physiotherapy treatment and the use of painkillers.
[9]PCB 16
34The plaintiff went on in that affidavit to describe vocational assessments that had been arranged, including suggestions that he was fit for work as a motor mechanic, about which he said that he “strongly disagree”.[10] He described his ongoing difficulty working on cars and the like.
[10]PCB 18
35The plaintiff then swore a third affidavit on 26 August 2022,[11] which mostly took issue with some of the affidavit evidence that ultimately the defendant did not rely on, and so not much needs to be said about that affidavit.
[11]PCB 22
36More relevantly, the plaintiff swore a fourth affidavit on 5 March 2024.[12] In that affidavit, he again described difficulty with his shoulder and back, ongoing treatment, including the use of strong medications. He again described restrictions for his previous hobby of fixing up cars.
[12]PCB 28
37The plaintiff then swore a fifth affidavit on 1 July 2024.[13] In that affidavit, he said something more about work capacity as follows:
“2.As I deposed to in paragraph 6 of my first affidavit, I obtained a Certificate II in Automotive with a view to becoming a motor mechanic. I undertook this at Gippsland TAFE. It was a 6 month course. I had to do it twice as the first time around my Nanna died and I had to support my mother.
3. The Certificate II would have enabled me to commence an apprenticeship as a motor mechanic although I found it difficult to get an apprenticeship. In this regard, I had never been in a stable home until the age of 21, when I rented my own place. Before that time, I was moving around from place to place. Notwithstanding same, I did apply to a few places with respect to obtaining an apprenticeship as a motor mechanic, and I was almost successful on one occasion but when I was 17, my father kicked m out of home and I lost that opportunity.
4. As I wanted to earn an income, I ended up getting the labouring job with the defendant in mid-2017. The whole time I was working with the defendant up to the time I suffered injury with them, I was still looking around for opportunities in the automotive world to get into that line of work.
5. In this regard, as I deposed to in paragraph 29 of my third affidavit, my goal had always been to set up my own workshop. I had always been passionate about cars and I wanted to set up my own workshop undertaking work ranging from restoration work to high performance car builds. This would involve anything from street cars to drag cars and everything in between. Basically, I wanted to build people’s dream cars for them.”[14]
[13]PCB 40
[14]PCB 40-41
38The plaintiff then swore another affidavit on 15 August 2025,[15] in which he described ongoing pain in his right shoulder which could be severe, radiating to the right side of his neck. He described weakness in his right arm. He described back pain that radiated down the legs, more so the left leg, and difficulty with prolonged walking, standing and sitting.[16] In terms of treatment, the plaintiff said:
“6.In terms of treatment, I continue to take Lyrica 150mg twice a day, Melatonin 4mg a day and am now also on Phenergan 25mg once at night. In terms of Panadeine Forte, I take about 8 of these a day, in addition to Panadol Osteo about 6 a day. Moreover, the dosage of Targin has gone up from 10mg to 15mg as it was not providing much relief of my symptoms. In addition, in terms of Efexor, I now take 150mg and 75mg in the morning.
7. The medications are prescribed by my general practitioner, Dr Jin Kee.
8. I have not returned to the pain specialists as the only treatment they were able to offer me were injections, which did not help.
9. I do however continue to attend my physiotherapist, Kago Mentata, once a week for treatment to both my back and right shoulder, and the defendant’s WorkCover insurer continues to pay for that treatment.”[17]
[15]PCB 44
[16]PCB 44-45
[17]PCB 45
39The plaintiff went on to say that he had not returned to work and did not believe that he was then fit for any work.[18]
[18]PCB 45
The plaintiff’s oral evidence
40As a general observation, the plaintiff’s affidavits focused a lot on his pain and suffering consequences, his inability to engage in his hobby of restoring old cars and more broadly asserted an inability to do any work “after injury”. It was these later two issues that were a focus of his oral evidence, as well as his overall mental health.
41The cross-examination of the plaintiff commenced with questions about his background, schooling, and ability to work in fast food organisations. The plaintiff then explained he had a long interest in cars, and had started working on cars when he was “a kid”.[19]
[19]T 16, L 24
42The plaintiff then described how he commenced a VCAL course but did not complete it. He explained that his home life was not stable, but he had otherwise been satisfactorily completing the course.
43The plaintiff was cross-examined generally about his education and ability to undertake various courses, even if he had been unable to complete those courses for family reasons.
44Next, he was cross-examined about some administrative work that he did with the employer and his basic computer skills and the like. He explained how, after suffering injury with the employer, in the afternoons he did some scanning of files into the computer and labelling documents in a file.[20] He also explained that he had some occasional customer contact, face to face.
[20]T 22, L 9-12
45The plaintiff was then cross-examined about his activity on social media around buying and selling cars, and car parts. The cross-examination established that the plaintiff would often buy a car, both to have as his daily drive but also with the aim of fixing it up and then selling it. There was some suggestion during the cross-examination that the plaintiff was effectively running a used car or used car parts business, but in my view the cross-examination did not reach that height. Instead, what it established was that the plaintiff is someone who likes cars, restoring cars, and ultimately turning them over, perhaps at times for a small profit. In that context he was cross-examined about a business name and his involvement with a business run by a friend of his. About that, he explained he had just been trying to help his friend promote the business,[21] but he has not done any work as such since he was injured.
[21]T 28, L 21-22
46The plaintiff confirmed that he had not made any job applications since 2020 and had not sought to do any further training courses.[22]
[22]T 37, L 29-31
47The plaintiff was then asked whether his mental health had been a significant barrier to returning to work, and he said “It’s pretty bad, yes”.[23] He explained that he had suicidal thoughts. He had been given a referral to a counsellor but he had a bad experience in the past with counsellors. He said he believed he had been referred to a psychiatrist, but nothing had come from that referral. He confirmed he was taking daily medication for his mental health, and that as a result of his mental health he had withdrawn socially.[24]
[23]T 38, L 3-5
[24]T 39, L 13-18
48Otherwise about ongoing treatment, the plaintiff confirmed that he continues to see his general practitioner once a month for his mental health, and otherwise continues to have physiotherapy treatment at Gippsland Physiotherapy.
49Next, the plaintiff was asked questions about jobs that had been identified in vocational reports, commencing with the role as a spare parts interpreter. The plaintiff explained that he had a close friend who was a spare parts interpreter and understood what was involved in the role.[25] He accepted that he would have the knowledge about car parts, but said his anxiety would play into his ability to do a role like that nowadays. He said the biggest issue in communicating with people “would be my depression/anxiety”.[26] The plaintiff was then cross-examined about that as follows:
[25]T 42, L 16-18
[26]T 42, L 29-30
COUNSEL:
Q:“And would you say that severe depression and anxiety that you suffer from is the biggest barrier to you doing that job as a spare parts interpreter?---
A:No, that wouldn’t be the biggest barrier.
Q:All right?---
A:It would be – if you want, I can tell you?
Q:Yes, why don’t you tell me?---
A:Um, it would be the moving of parts, and standing all day at a counter.
Q:What if you didn’t have to move the parts if the warehouse staff picked the stock for the despatch?---
A:There is no warehouse staff. You’re literally handing people the part over the counter. And a business isn’t going to hire two people for one person’s job.”[27]
[27]T 43, L 2-13
50The plaintiff said if he had not been injured, then working doing something with cars would have been his preference. He then explained that he would not be able to do that now, because he could not pick up the heavy parts, stand all day at a counter, or be on his feet for long periods. When it was suggested that he might be able to do that work if he could sit and stand and move about as needed, he said:
“I wouldn’t be able to do it for any longer than two/three hours. I’d struggle with it.”[28]
[28]T 44, L 9-11
51About what was stopping him from working, the plaintiff said it was “Mostly my back”.[29]
[29]T 45, L 29-30
52That completes a consideration of the evidence of the plaintiff. I will say a little more about the plaintiff as a witness as necessary, but broadly he presented as a reliable and truthful witness.
Medical evidence
Treating practitioners
Dr Jin Kee, general practitioner
53Dr Jin Kee is the plaintiff’s treating general practitioner. Dr Kee provided several reports, but since each report built on a previous report it is only necessary to discuss his most recent report of 7 April 2025.[30]
[30]PCB 125
54Dr Kee noted the plaintiff had been a patient of his for nearly six years. He set out the circumstances of injury, the treatment provided by him, and the specialist referrals that he had arranged.
55In the report, Dr Kee noted the plaintiff had a mental health assessment on 30 July 2024 which showed him to be suffering with an ongoing severe depression, anxiety and a high risk of suicide. Dr Kee said that had caused the plaintiff to become avoidant, suffering social phobia and social anxiety.
56Dr Kee noted that the plaintiff had little change to his physical injuries, and continued to suffer with ongoing pain, dysfunction, and disability, as a result of his ongoing right shoulder, neck, and lumbosacral back injuries. Overall, Dr Kee said:
“He also continued to suffer with a severe adjustment disorder characterized by symptoms of depression and anxiety associated with recurrent panic attacks. Harley has no current work capacity due to each injury independently.
Each of his injuries, when considered separately, each has contributed to his loss of employment and also to his reduced social, domestic and recreational activities.
I last saw Harley on the 28th of February 2025.
In summary, Harley continues to suffer with multiple work related injuries. He is unable to work and he has no work capacity because of all of his injuries. These injuries include his lumbo-sacral back, his right shoulder and neck injuries as well as his severe adjustment disorder with depression and anxiety with high suicide risk.
He has no capacity for any modified or alternative duties due also to all 3 of his work related injuries as above.
His prognosis is guarded and I am doubtful if he will ever be able to return to work. He continues to suffer significant symptoms from his injuries to his lumbosacral back and to his neck and right shoulder. He is currently having treatment with regular weekly physiotherapy and he requires daily medications. His severe mental illness with high suicide risk and significant depression and anxiety requires regular treatment. He is having fortnightly counselling with a clinical psychologist and he has been referred to a specialist psychiatrist. His recent aggravation from the epidural spinal injections is also ongoing and problematic.
All of these factors render him unfit to work.”[31]
[31]PCB 138
Mr Ash Chehata, orthopaedic upper limb surgeon
57Mr Ash Chehata is an orthopaedic upper limb surgeon who has treated the plaintiff. In a report to the plaintiff’s solicitors dated 7 March 2022,[32] Mr Chehata noted that ultrasound investigations of the plaintiff’s shoulder had confirmed a partial thickness subscapularis tear which had caused long head of bicep tendon dysfunction. He then set out how he had performed a decompression and excision of the AC joint. He said it was unlikely that there would be any further operative intervention to the shoulder and that it “is certainly something that will settle down over time”.[33]
[32]PCB 146
[33]PCB 148
58Mr Chehata was then asked specific questions which he answered as follows:
“1. The history obtained by you from our client.
The history is that of lifting a heavy load with a specific traumatic incident pulling on his right shoulder and he developed ongoing impingement and bursitis, which was recalcitrant to conservative measures. We performed a bursectomy and decompression.
2. Your examination findings in relation to our client’s work related right shoulder injury.
The examination findings in relation to this work related injury is likely a soft tissue injury.
3. Your opinion as to the nature and extent of our client’s work related right shoulder injury.
The nature and extent of the work related injury is now more related to the development of chronic pain and sensitisation.
4. Details of the treatment administered to date for the work related right shoulder injury and your views concerning possible future treatment options regarding the right shoulder injury.
At this stage, the possible treatment options after surgical intervention excluded a rotator cuff tear, is likely to be more related to exercise and a self-directed exercise programme, also in parallel with a pain management programme.
5. Your opinion as to the relationship between our client’s work related right shoulder injury and our client’s employment as a labourer up to and including 20 June 2019.
At this stage, the relationship of his work as a labourer is certainly directly related to the development of the right shoulder injury.
6. Your opinion as to whether our client does have a current work capacity for his pre-injury employment as a labourer and your opinion as to whether our client has a current work capacity for suitable alternative employment on a consistent and reliable full time basis taking into account our client’s work related right shoulder injury and subsequent treatment, his work history, his place of residence, his transferrable skills etc.
His current work capacity will be more related to his capacity to lift, push or pull. With his ongoing sensitisation and chronic pain in the right shoulder, this is certainly limited. It is unclear about his progress with regard to the pain specialist, whether or not he will ever able to return back to heavy manual work.
7. If it is your opinion that our client does not have a current work capacity for his pre-injury employment as a labourer or for suitable alternative employment on a consistent and reliable full time basis, we then seek your further opinion as to whether such incapacity for employment is likely to remain indefinitely.
It is likely that he will have some form of capacity due to his young age and more likely will be a situation of him obtaining lighter work or alternative employment, which is realistic.
8. Your opinion as to whether our client’s work related lower back injuries sustained in the course of his employment as a labourer up to and including 20 June 2019 restrict our client in relation to employment, social, domestic and recreational activities.
Obviously, the issues that he has now are not only his right shoulder pathology, but with ongoing neck and back symptoms, this in fact may preclude his ability to return back as a labourer.
9. If yes to the above paragraph, whether such preclusions or restrictions to our client’s employment, social, domestic and recreational activities are likely to be of a long term permanent nature.
It has obviously affected all of his recreational pursuits. He is unable to sit, stand or run, affecting all of his social and domestic duties.
At this stage, it appears to be quite a chronic and permanent situation that has not improved with time.”[34]
[34]PCB 149-151
Mr Patrick Chan, neurosurgeon and spinal surgeon
59Mr Patrick Chan is a neurosurgeon and spinal surgeon who has treated the plaintiff for his spine injury. Mr Chan wrote to Dr Kee on 29 November 2021 and said:
“In late June 2019, he felt progressive discomfort in his neck and right shoulder. There was a stage when he was in so much stress from work that he was in pain, bursting vessels in the eyes and coughing up blood.
On 26 June 2019, he was involved in lifting the whiteboard with another member when the person let go while trying to lay it down on a pallet. He described that he had to catch the full weight. This resulted in neck pain and right upper limb pain, lower back pain and left leg pain. Eventually went on to have right shoulder surgery early this year and due to persistent pain, he had further evaluation and asked to have investigation about his neck.
He described right-sided neck pain that radiate up towards the right occiput region and down to the right shoulder across the right shoulder into the right shoulder blade and also his whole right arm feeling dead, numb and paraesthetic. This extend into the forearm and also all fingers on the right side. There were no symptoms on the left. He described movement and activities of his neck and right upper limb exacerbated the symptoms.
He also has lower back pain that radiate with paraesthesia around the whole left leg with paraesthesia onto the dorsum of left foot and the middle three toes. He described at times the left knee locking up. These are exacerbated with prolonged sitting or standing. There was no description of weakness.
The review was conducted via Zoom telehealth. He demonstrated restriction in his right shoulder range of abduction and a positive Spurling’s test. He demonstrated that he had difficulty performing a straight leg raising test on the left. He denied having any weakness in dorsiflexion or plantarflexion of his foot.
His CT lumbar spine (18 June 2020, Regional Imaging) showed a LS-S1 central disc protrusion mildly contacting the left S 1 nerve root. His CT cervical spine (25 June 2021, Regional Imaging) showed right C4-C5 foraminal stenosis.
Mr Robertson has persistent mechanical axial neck pain and right cervical brachialgia and persistent mechanical lower back pain with left sciatica. For further evaluation, given the progress, the persistent symptoms that is affecting his ability to return to work and function, I have arranged for him to have an MRI cervical spine and lumbar spine under sedation given his claustrophobia. I will review him after the above.”[35]
[35]PCB 152-153
60Mr Chan wrote again to Dr Kee on 1 February 2022,[36] noting there was no requirement for neurosurgical intervention and that he had referred the plaintiff to Dr Andrew Muir, pain specialist.
[36]PCB 154
Dr Andrew Muir / Dr Barry Slon
61The plaintiff had some limited pain management treatment with Dr Andrew Muir and Dr Barry Slon. He tendered letters written to Dr Kee from Dr Muir and Dr Slon, outlining the treatment they had arranged, including injections into the plaintiff’s spine.
Plaintiff’s medico-legal reports
Dr Ales Aliashkevich, neurosurgeon and spine surgeon
62Dr Aliashkevich is a neurosurgeon and spine surgeon who examined the plaintiff for medico-legal purposes at the request of his solicitors.
63Dr Aliashkevich reported initially on 19 April 2022.[37] He obtained a history from the plaintiff of injury and treatment. Dr Aliashkevich set out a number of medical reports that had been provided to him. He then noted a physical examination of the plaintiff and the reports of various imaging provided to him. Dr Aliashkevich then provided the following diagnosis:
[37]PCB 164
“Main diagnosis
- Chronic back pain
- Chronic neck pain
- Chronic right shoulder and arm pain
- Multilevel spondylosis
- Right C4/5 foraminal narrowing
- C3/4 arthropathy
- Right paracentral L4/5 disc protrusion
- Partial S1 lumbarisation with minor S1/2 tracer activity
- Left sacroiliac arthropathy
- History of a workplace incident around 20/6/2019
Other relevant conditions
- Chronic right head and retroauricular pain
- Right odontogenic infection
- Right shoulder surgery on 10/3/2021
- History of a motor vehicle accident on about 7/7/2021
- Depression with suicide attempts
- Bodyweight around 136 kg
- Smoking 25 tobacco cigarettes a day
- Excessive alcohol consumption
I agree with the diagnosis of Mr Chan on 1/2/2022:
Harley has persistent mechanical axial neck pain with right brachialgic symptoms and mechanical axial lower back pain with left referred leg symptoms. Reviewing the clinical and radiological findings, he does not require neurosurgical intervention at this stage.
Please note that disentangling your client's shoulder, arm, neck and back problems is very challenging. Having regard to his:
- physical and repetitive nature of employment as a labourer,
- history and mechanism of the incident around 20/6/2019,
- chronic and refractory character of back pain since the stated accident,
- exacerbation of pain after attempted return to work,
- evidence of previous back problems,
- ability to work full time as a labourer before the incident,
- failed long-term relief after conservative treatment,
- insurer's liability accepted for the neurosurgical consultation,
- only incomplete improvement after right shoulder surgery,
- limited visual clinical examination,
- available radiological results,
- available medical documentation, GP notes and reports of other medical specialists,
I consider, on the balance of probability, his employment in general and the stated incident around 20/6/2019 in particular as materially contributing factors to a significant exacerbation of a pre-existing degenerative condition of the cervical and spine.”[38]
[38]PCB 182-183
64Dr Aliashkevich then answered questions about work capacity as follows:
“Although I am not a qualified occupational specialist, when considering your client's:
- inability to work since the beginning of 2020,
- character and intensity of symptoms,
- exacerbation of pain after attempted return to work,
- persisting pain,
- failed response to conservative treatment,
- only incomplete improvement after right shoulder surgery,
- current treatment requirements,
- functional limitations,
- age,
- level of education,
- work experience,
- opinions of other medical specialists,
- place of residence, and
- limited transferrable skills,
I think he has no current capacity for pre-injury work as a labourer.
When considering only his cervical and lumbar spine condition and putting aside his shoulder injury, mental health problems and other condition outside of my expertise, he might be suitable for modified duties under the following restrictions:
- lifting and carrying weights over 10 kg,
- regular or vigorous pushing/pulling,
- using heavy tools,
- working overhead,
- heavy dragging and carrying,
- forceful or sustained turning and twisting,
- squatting,
- driving over 30 minutes,
- stooping, bending, kneeling and crouching,
- climbing steps or ladders,
- walking on uneven grounds,
- prolonged sitting, standing or walking for over 30 minutes,
- tolerating static postures for longer than 15 minutes,
- exposure to jarring vibrational forces,
- repetitive or sustained bending to reach below the knees,
- repetitive or sustained neck bending, tilting or twisting.”[39]
[39]PCB 184-185
65Dr Aliashkevich reported again on 11 January 2024.[40] In many regards that report mirrored his earlier report. About diagnosis, he then said:
“-Cervical spine: -Soft tissue injury. -Aggravation of degenerative disease of the cervical spine with radiating features with equivocal evidence of radiculopathy.
-Lumbar spine: -Soft tissue injury. -Aggravation of degenerative disease of the lumbar spine with radiating features, but no confirmed evidence of radiculopathy.
-Right shoulder: -Soft tissue injury. -Bursitis for which Mr Robertson has undergone surgery in the form of decompression and excision of the AC joint. -Chronic right shoulder pain.
He also presents with psychological impairment, although this is outside my area of expertise. In addition, he also presents with weight gain with associated sleep-disordered breathing. This too is outside my area of expertise.”[41]
[40]PCB 192
[41]PCB 200
66Dr Aliashkevich went on to say that the plaintiff could not return to his pre-injury employment. He then answered questions as follows:
“6. If it is your current opinion that our client does not have a current work capacity for his pre-injury employment as a Labourer or for suitable alternative employment on a consistent and reliable full time basis, we then seek your further opinion as to whether such incapacity for employment is likely to remain indefinitely EACH INJURY CONSIDERED SEPARATELY.
With regard to Mr Robertson’s right shoulder, I do not anticipate a significant alteration in his presentation into the foreseeable future. I note the comprehensive nature of the treatment received and I note the length of his impairment and disability and I note a number of other negative prognostic indicators, including psychological comorbidity, his current job detachment and multiple sites of injury. I do not anticipate a significant alteration in his shoulder impairment into the foreseeable future.
With regard to his cervical spine, I note the degenerative nature of the underlying condition. I note the poor response to treatment to date. I also note the length of his impairment and disability and a number of negative prognostic indicators including psychological comorbidity, his current job detachment and multiple sites of injury, I do not anticipate a significant alteration in his presentation into the foreseeable future.
With regard to lumbar spine, I note his poor response to treatment to date, the length of his impairment and disability. I also note a number of negative prognostic indicators including psychological comorbidity, his current job detachment and multiple sites of injury, I do not anticipate a significant change in his presentation into the foreseeable future.
7. Your current opinion as to whether our client’s work related cervical spine, lower back and right shoulder injuries sustained in the course of his employment as a Labourer up to and including 20/6/2019 restrict our client in relation to employment, social, domestic and recreational activities EACH INJURY CONSIDERED SEPARATELY. I recommend the following restrictions:
-Cervical spine: No push, pull, carry or lift over 5 kg. No sustained forward reaching. No over shoulder reaching. No repetitive neck tasks.
-Right shoulder: No push, pull, carry or lift over 5 kg. No sustained forward reaching. No over shoulder reaching. No repetitive shoulder tasks.
-Lumbar spine: No push, pull, carry or lift over 5 kg. No repetitive bending or twisting. No prolonged static postures. No exposed to whole body vibration.With these restrictions in place, Mr Robertson will have difficulty engaging in domestic tasks, although could perform light domestic tasks in a self-paced manner.
With regard to his recreational pursuits, I note that he was involved a car restoration and I anticipate that each of the injuries will impact on his ability to engage in car restoration.With regard to employment, as noted above, I am of the opinion that he is unlikely to be able to return to his pre-injury role or suitable alternative duties on a consistent and reliable basis.”[42]
[42]PCB 200-201
67For the purpose of the second report, Dr Aliashkevich again said that this disentangling of the plaintiff’s shoulder, arm, neck, hip and back problems was very challenging.[43]
[43]PCB 207
68Dr Aliashkevich reported again on 20 January 2025.[44] On that occasion he again set out the history, treatment summary and review of additional documents, before conducting an examination of the plaintiff. Once again he was asked to answer specific questions and repeated much of the opinions given in his earlier reports. However, relevantly, he answered questions as follows:
[44]PCB 211
“Disentangling your client's shoulder, arm, neck, leg and back problems is challenging, particularly without up-to-date radiological investigations. With regard to his:
- history of physical and repetitive employment as a labourer,
- history and mechanism of the incident around 20/6/2019,
- ability to work full-time as a labourer before the incident,
- chronic and refractory character of pain after the incident,
- exacerbation of pain after attempted return to work,
- evidence of previous back problems,
- failed long-term relief after conservative treatment,
- insurer's liability accepted for the neurosurgical consultation and interventional pain procedures,
- failed relief after steroid injections,
- only incomplete improvement after right shoulder surgery,
- current examination findings,
- available old radiological results,
- available medical documentation, GP notes and reports of other medical specialists,
it is still possible to assume that on the balance of probability, his employment in general and the incident around 20/6/2019, in particular, could have been materially contributing factors to the exacerbation of a pre-existing degenerative cervical and lumbar spine conditions a degree greater than minimal.
Although I'm not a qualified pain specialist, based on the character of your client's chronic pain in various body parts, I had an impression that he developed chronic pain syndrome due to central sensitisation and maladaptive nociceptive response. Her situation is further complicated by significant psychological problems, requiring management by appropriate specialists.
…
Although I am not a qualified occupational specialist, when considering your client's:
- inability to work since 2020,
- character and intensity of symptoms,
- exacerbation of pain after attempted return to work,
- persisting pain,
- failed response to conservative treatment and interventional pain procedures,
- only incomplete improvement after right shoulder surgery,
- current treatment requirements,
- functional limitations,
- medical comorbidities,
- age,
- level of education,
- work experience,
- opinions of other medical specialists,
- place of residence, and
- limited transferrable skills,
I think he has no current capacity for pre-injury work as a labourer.
When considering only his previous cervical and lumbar spine organic conditions and putting aside his shoulder injury, mental health problems and other conditions outside of my expertise, he might be suitable for modified duties under the following restrictions:
- lifting and carrying weights over 5-10 kg,
- regular or vigorous pushing/pulling,
- using heavy tools,
- working overhead,
- heavy dragging and carrying,
- forceful or sustained turning and twisting,
- squatting,
- driving over 30 minutes,
- stooping, bending, kneeling and crouching,
- climbing steps or ladders,
- walking on uneven grounds,
- prolonged sitting, standing or walking for over 30 minutes,
- tolerating static postures for longer than 15 minutes,
- exposure to jarring vibrational forces,
- repetitive or sustained bending to reach below the knees,
- repetitive or sustained neck bending, tilting or twisting.”[45]
[45]PCB 220-221
Dr Joseph Slesenger, specialist occupational physician
69Dr Slesenger is a specialist occupational physician who examined the plaintiff at the request of his solicitors and provided reports.
70In his first report of 13 May 2022,[46] Dr Slesenger set out the documents provided to him, his description of the plaintiff’s injury, treatment and current symptoms. About symptoms, Dr Slesenger recorded:
“He has residual right shoulder pain that is severe and constant, noticeable over the anterior and lateral aspects of the shoulder, radiating into the right side of the neck.
He advised of residual restriction to the range of shoulder and neck movements, noting difficulty rotating his neck to the right side, difficulty forward reaching and is unable to over shoulder reach. He has difficulty elevating his arm above the shoulder.
He advised of weakness throughout the right arm and weakness in the right hand. He has pins and needles and numbness in his right hand.
[46]PCB 223
Lower Back
He has lower back pain, centred in the lower back, radiating into the left leg with associated weakness in the left leg. The pain is aggravated by activity, particularly walking, standing and sitting. He advised that the pain dull and occasionally sharp in character.”[47]
[47]PCB 226
71Dr Slesenger then reviewed various medical reports and ultimately expressed an opinion that the plaintiff had a soft-tissue injury and aggravation of degenerative disease at the cervical spine, as well as a soft-tissue injury and aggravation of degenerative disease of the lumbar spine. He opined that the plaintiff could not then return to his pre-injury employment and overall that the plaintiff was unlikely to return to work.[48]
[48]PCB 234
72Dr Slesenger reported again on 7 December 2023. That report reported much of his earlier opinions, including diagnosis of the neck and lumbar spine injuries. However, on that occasion Dr Slesenger also diagnosed a soft-tissue injury and right shoulder bursitis for which the plaintiff had undergone surgery. He also said the plaintiff presented with a psychological impairment, although that was outside his area of expertise.[49]
[49]PCB 251
73On that occasion, Dr Slesenger repeated his opinion about work capacity. About a return to work, Dr Slesenger said:
“I recommend the following restrictions:
● Cervical spine:
·No push, pull, carry or lift over 5 kg.
·No sustained forward reaching.
·No over shoulder reaching.
·No repetitive neck tasks.
● Right shoulder:
·No push, pull, carry or lift over 5 kg.
·No sustained forward reaching.
·No over shoulder reaching.
·No repetitive shoulder tasks.
● Lumbar spine:
·No push, pull, carry or lift over 5 kg.
·No repetitive bending or twisting
·No prolonged static postures.
·No exposed to whole body vibration.
With these restrictions in place, Mr Robertson will have difficulty engaging in domestic tasks, although could perform light domestic tasks in a self-paced manner.
With regard to his recreational pursuits, I note that he was involved a car restoration and I anticipate that each of the injuries will impact on his ability to engage in car restoration.
With regard to employment, as noted above, I am of the opinion that he is unlikely to be able to return to his pre-injury role or suitable alternative duties on a consistent and reliable basis.”[50]
[50]PCB 253
74Dr Slesenger reported for a third time on 3 February 2025.[51] Once again that repeated much of his earlier reports and opinions, including about diagnosis and restrictions for work. About work, Dr Slesenger was asked questions as follows:
[51]PCB 255
“I am of the opinion that Mr Robertson could not return to his pre-injury duties as the job demands lie outside his capacity limits.
With regard to alternative duties, when taking into account his current symptoms and functional limitations, the variable and unpredictable nature of his symptoms, his daytime fatigue, his residential location, his driving capacity, his past employment history, his literary skills and his computer skills, I am of the opinion that he is unlikely to be able to return to work, performing suitable alternative duties on a consistent and reliable basis.
…
With regard to the prognosis, I do not anticipate a significant alteration in Mr Robertson’s presentation into the foreseeable future. As noted in my previous report, with regard to his right shoulder, I note his residual impairment, his current symptoms and functional limitations and negative prognostic indicators, including his psychological comorbidity, his job detachment as well as multiple sites of injury.
With regard to his cervical spine, I also note the degenerative nature of the underlying condition, his poor response to treatment to date and I also note a number of general prognostic indicators as outlined above, which would apply to his cervical spine as well as his right shoulder.
With regard to his lumbar spine, I also note the length of his impairment and disability, his poor response to treatment to date and the general negative prognostic indicators which would equally apply to his lumbar spinal impairment.
…
● Cervical spine:
o No push, pull, carry or lift over 5 kg.
o No sustained forward reaching.
o No over shoulder reaching.
o No repetitive neck tasks.
● Right shoulder:
o No push, pull, carry or lift over 5 kg.
o No sustained forward reaching.
o No over shoulder reaching.
o No repetitive shoulder tasks.
● Lumbar spine:
o No push, pull, carry or lift over 5 kg.
o No repetitive bending or twisting
oNo prolonged static postures.
o Not (sic) exposure to whole body vibration.
With these restrictions in place, he could return to light domestic tasks but could not return to unrestricted duties. He could also engage in light recreational tasks, adhering to the restrictions in a self-paced manner.”[52]
[52]PCB 272-274
Ms Suzanne George, occupational therapist
75Ms George is an occupational therapist who provided a vocational assessment report dated 28 July 2024[53] at the request of the plaintiff’s solicitors.
[53]PCB 49
76In the report, Ms George set out the history provided to her. She then set out her opinion based on information included in medical reports and other information, as follows:
“I have been instructed to separately consider Mr Robertson’s right shoulder, spine and psychological injuries when determining suitable vocational options.
Analysis and interpretation of the medical reports provided indicates that with regard to his right shoulder injury only, Mr Robertson should for the foreseeable future avoid work tasks involving a requirement for:
• frequent or prolonged right shoulder movements
• moderate to heavy manual handling including lifting, carrying, pushing or pulling with the right arm
• reaching forwards or above shoulder height with the right dominant arm
Analysis and interpretation of the medical reports provided indicates that with regard to his spine injury only, Mr Robertson should for the foreseeable future avoid work tasks involving a requirement for:
• frequent or prolonged bending or twisting of the spine
•prolonged standing, walking or sitting
• moderate to heavy manual handling including lifting, carrying, pushing or pulling
• reaching forwards or above shoulder height
• exposure to whole body vibration or jolting
• climbing steps or ladders
• squatting or kneeling
• walking on uneven ground
Analysis and interpretation of the medical reports provided indicates that with regard to his psychological injury only, Mr Robertson should for the foreseeable future avoid work tasks involving a requirement for:
• maintaining a positive demeanour despite depressed mood
• remaining calm during busy periods despite increased anxiety• interacting with colleagues, supervisors or customers despite social phobia and avoidance
…
Mr Robertson’s vocational options would be impacted by the following:
•he has inadequate skills to perform the tasks required in a clerical and administrative role
• while has basic skills using computer applications to access the internet, email and word processing (word), he has no knowledge of software used for spreadsheet construction and manipulation (Excel)1
•he uses a computer keyboard slowly and cannot touch type
• he has never worked in a predominantly clerical and administrative role
• he has lost his main vocational attribute of physical fitness
• his incapacity for frequent right shoulder movements and prolonged sitting would affect his ability to regularly commute to work or drive a vehicle for work purposes
• his ability to interact positively and calmly with others and work effectively and productively as part of a team or build relationships with customers would be significantly impacted by his psychiatric injury”[54]
(Footnote omitted.)
[54]PCB 51-52
77Ms George went on to say that in respect of any suitable employment, the plaintiff was likely to be capable of attending for work for a maximum of four hours a day, three days per week.[55]
[55]PCB 58
78Ms George reported again on 19 August 2024.[56] In that report she provided vague figures about rates of pay for motor mechanics and also figures that the plaintiff could have achieved as a self-employed motor mechanic.
[56]PCB 68
Dr Chris Grant, consultant psychiatrist
79Dr Grant is a consultant psychiatrist who examined the plaintiff at the request of the defendant and provided reports, which were tendered by the plaintiff.
80In his first report of 28 October 2021,[57] Dr Grant opined that on psychiatric grounds the plaintiff had a current work capacity.[58]
[57]PCB 75
[58]Defendant Court Book (“DCB”) 80
81Dr Grant reported again on 28 April 2022,[59] in which he again expressed the opinion that on psychiatric grounds the plaintiff had a current work capacity.
[59]DCB 81
82Dr Grant reported again on 5 December 2023,[60] in which for the third time he opined that the plaintiff had a current work capacity.
[60]DCB 86
Defendant’s medical reports
Dr Dominic Yong, specialist occupational physician
83The defendant tendered reports from Dr Dominic Yong, specialist occupational physician.
84In a report dated 23 August 2022,[61] Dr Yong summarised the plaintiff has having a right shoulder soft-tissue injury, lower back soft-tissue injury and cervical spine soft-tissue injury. He also noticed the presence of a psychological comorbidity.[62]
[61]DCB 91
[62]DCB 100
85Dr Yong was then asked to express an opinion about work capacity, which he did as follows:
“Taking into account the physical conditions only, and noting the following factors:
• Current diagnoses.
• Current functional capacity.
• Requirement to participate in a graduated activity-based recovery program.
Mr Robertson has a capacity to perform tasks within the following restrictions:
• Avoid repetitive neck movements or awkward neck postures
• Avoid repeated above shoulder height tasks or reaching duties
• Avoid repeated firm pushing and pulling tasks
• Avoid repeated bending and twisting of the back
• Avoid lifting more than 2.5 kg with the right hand or 5 kg with both hands on a repeated basis
• Vary posture regularly between sitting, standing and walking
• Reduction in working hours.
Mr Robertson described the nature of his pre-injury role. He described a requirement to handle boards manually. He said that these whiteboards were heavy in weight.
This is likely to exceed the recommended restrictions. Therefore, Mr Robertson does not have a current capacity to work his pre-injury duties.
Mr Robertson would have a capacity to perform alternative duties within the restrictions described above.”[63]
[63]DCB 101-102
86Dr Yong was then asked to consider whether jobs as a service adviser, motor vehicle parts interpreter, delivery driver or general clerk were suitable employment for the plaintiff. In summary, he said that service adviser, motor vehicle parts interpreter and general clerk roles would likely comply with restrictions, but delivery driver would not.
87Dr Yong then considered further employment as a forklift driver, delivery driver, sales assistant – motor vehicle parts, checkout operator and customer service representative. He ruled out forklift driver, sales assistant – motor vehicle parts as suitable.
88Dr Yong reported again on 17 January 2024.[64] He again discussed the plaintiff’s restrictions including for various jobs.
[64]DCB 113
Mr Michael Dooley, orthopaedic surgeon
89Mr Dooley is an orthopaedic surgeon who examined the plaintiff at the request of the defendant and provided reports.
90In his first report of 16 December 2021,[65] Mr Dooley took a history before expressing his diagnosis, clinical impression and opinion. Having done so, he opined that the nature of any soft-tissue injury to the plaintiff’s right shoulder was not clear. He thought the radiology did not support a diagnosis of bursitis and did not provide evidence of rotator cuff tearing. He noted the right shoulder surgery and said the plaintiff had reported constant ongoing right shoulder girdle pain and major disability.[66]
[65]DCB 128
[66]DCB 130
91Mr Dooley then said, about any spine injury, that the plaintiff may have sustained soft-tissue injuries involving musculoligamentous strain in the lumbar spine, or may have involved some aggravation of underlying degenerative change. He noted the plaintiff described intermittent exacerbations of back pain.[67]
[67]DCB 129
92Overall, Mr Dooley opined that he would expect the plaintiff to note some intermittent right shoulder girdle pain and some intermittent lower back pain.[68]
[68]DCB 130
93Mr Dooley then re-examined the plaintiff on 16 September 2025 and provided a report to the defendant dated 22 September 2025.[69]
[69]DCB 132
94For the second report, Mr Dooley again took a history from the plaintiff. He then described the plaintiff’s presenting complaints as involving constant ongoing lower back pain and constant right shoulder pain.
95Mr Dooley then conducted a clinical examination and reviewed some limited radiology.
96Mr Dooley then effectively repeated his opinion, stating that the nature of any soft-tissue injury to the right shoulder was not clear, but that it could have involved strain/sprain of the shoulder girdle muscle. He again noted that surgery had been undertaken to the plaintiff’s right shoulder and mused that clearly he had the advantage of hindsight. He said it was his opinion that the chances of such surgery providing last improvement in terms of pain and function were low at best and unfortunately the surgery had not helped the plaintiff.
97In respect of the plaintiff’s lower back, he opined that the plaintiff had suffered a soft-tissue injury to the lumbar spine. He went on to say that it involved musculoligamentous strain/sprain and could have aggravated underlying degeneration at the L4-5 level.[70]
[70]DCB 135
98Mr Dooley was then asked to answer various questions. In the course of doing so, he said it remained his opinion that the plaintiff did not have any specific underlying problems with the right shoulder joint or rotator cuff region.[71]
[71]DCB 136
99Mr Dooley then asked another question and maintained his previously-expressed opinion about diagnosis and prognosis.
100Mr Dooley then responded to a question about whether the plaintiff’s right shoulder and lumbar spine injuries may have been consistent with a motor vehicle accident alleged to have occurred around 19 June 2019. Pausing here, as mentioned earlier, there did appear to be the potential for a causation dispute in this proceeding, but the defendant did not ultimately press that point. Therefore Mr Dooley appears to have answered questions that are irrelevant to this proceeding.
101In any event, Mr Dooley went on to say that, from an orthopaedic point of view only, he believed the plaintiff would be restricted in his ability to carry out regular heavy physical work, heavy manoeuvring, loading, et cetera. He said further that the plaintiff had a physical capacity to carry out light physical work or clerical-type work, including work as a general clerk, order clerk, spare parts interpreter and delivery driver of light goods.[72]
[72]DCB 138
Defendant’s vocational evidence
102First, the defendant relied upon a document described as a NES 130 Week Vocational Assessment Report prepared by Ms Han Trinh, rehabilitation consultant with an organisation called Rehab Management.[73] That was a report completed on 14 December 2020 and so is of limited utility for an assessment of “serious injury” as at today’s date.
[73]DCB 150
103But relevantly, Ms Trinh identified the plaintiff’s background employment history and his occupational interests. Having done so, she identified forklift driver, delivery driver, sales assistant – motor vehicle parts and accessories, checkout operator and customer service representative as “suitable employment” for the plaintiff “after injury”.
104Next, the defendant relied on a vocational assessment and labour market analysis report by Ms Joanne McLeod, occupational therapist, with CoWork Pty Ltd dated 30 November 2021.[74]
[74]DCB 165
105Like Ms Trinh, Ms McLeod also obtained a history from the plaintiff about his work and interests, or what she called his vocational profile. Having done so, Ms McLeod identified several potential barriers to employment, including some which seem to go well beyond her expertise, such as the comment that “Pending litigation cannot be ignored as a potential barrier to employment. Compensation and litigation have been associated with comparatively higher pain intensity and prolonged visibility”.[75] In any event, eventually Ms McLeod identified service adviser (order clerk), motor vehicle parts interpreter, delivery driver and general clerk as “suitable employment” for the plaintiff “after injury”.[76]
[75]DCB 185
[76]DCB 187
Submissions
Defendant’s submissions
106First the defendant submitted that the plaintiff had not on the evidence established that he was now totally incapacitated for suitable employment.
107The defendant submitted that the medical evidence supported the conclusion that the plaintiff “after injury” had the capacity for work as a service advisor, order clerk, and a motor vehicle parts interpreter on a full-time basis and therefore he failed to establish the requite 40 per cent loss.[77]
[77] T 59, L 13-17
108Second, the defendant submitted that “the plaintiff’s task is complicated…by reason of the failure to disentangle the various impaired body functions, and the psychiatric injury”. The defendant said that this was a “real problem” for the plaintiff because he was not entitled to bundle together different impaired body functions and the psychiatric condition to satisfy the 40 per cent loss of earnings test.[78]
[78] T 59, L 18-26
109On this point, the defendant conceded that if the Court concluded that, for example, the claimed spine injury impairment satisfied the 40 per cent loss test, then the fact that right shoulder, or the psychiatric condition, might preclude him from employment would not preclude the grant of pecuniary loss serious injury for the spine.[79]
[79] T 62, L 30; T 63, L 13
110The defendant’s disentangling point was a more subtle one. It submitted that the plaintiff had failed to discharge his evidentiary burden because the medical evidence did not delineate which restrictions for work related to which condition or injury. It highlighted as an example of the failure to disentangle, the opinion from Dr Kee who said that the plaintiff “continues to suffer with multiple work related injuries. He is unable to work and has no capacity for work because of all of his injuries”.[80]
[80] PCB 138
111Third, having submitted that the vocational and medical evidence established a capacity for suitable employment, the defendant then focused on the plaintiff’s aptitude and interest in motor cars and contended that suitable employment for him now included service provider (order clerk) at a rate of $1,232 gross per week,[81] motor vehicle parts interpreter at a rate of $1,067 gross per week,[82] general clerk at a rate of $1,291 per week,[83] and customer service representative at a rate of $1,419 per week.[84]
[81]DCB 188; 202-207
[82]DCB 189; 208-212
[83]DCB 191; 220-225
[84]DCB 162
112During closing submissions, the defendant placed some emphasis on the identified roles of a service adviser and motor vehicle parts interpreter as now being “suitable employment”.
113Pausing, the evidence established that had the plaintiff not been injured he had sufficient knowledge, clerical and computer skills, such that work as a service adviser or a motor vehicle parts interpreter was work for which he was broadly suited. In other words, this is not a scenario in which the plaintiff lacks the intellectual knowledge or capacity to undertake one of those jobs, or to be trained for one of those jobs.
114On this point, the defendant highlighted the fact that for the 2019 financial year the plaintiff earned $68,903 gross. It contended that the “60 per cent threshold” was $41,341.80 per annum, or $795 per week. Therefore, if the Court was to accept a residual capacity for suitable employment, the defendant contended that the requisite 40 per cent loss had not been made out on the evidence.
115The defendant primarily contended that the plaintiff was now fit for full-time work, or at the least he could commence on a graduated basis and extend to full-time hours over time. Therefore, the jobs identified all paid a salary that exceeded 40 per cent of his “without injury” earnings of $68,903 gross per annum.
116Therefore, the defendant contended that the plaintiff had failed on the evidence to establish an entitlement of the leave of the Court to commence a proceeding for pecuniary loss damages.
Plaintiff’s submissions
117First, the plaintiff contended that the medical evidence had sufficiently established that it was his physical injury – predominately his back – that incapacitated him for work.
118Second, the plaintiff contended that the medical evidence from Dr Aliashkevich had sufficiently disentangled impairment and impairment consequences to each of the claimed body functions.
119Third, the plaintiff contended the plaintiff had no realistic capacity for work “after injury”. In the alternate, he noted the limited job options now identified as “suitable”. He highlighted the evidence from Ms George. Overall, he submitted that at best he might get back to some light, part time employment. Therefore, taking a broad common law approach, he submitted that he had established the requisite loss of earning capacity[85].
[85] T 73, L 10-26
Analysis
A broad common law assessment of loss of earnings
120First, as the plaintiff also submitted, it should not be forgotten that the defendant conceded pain and suffering “serious injury”.
121While the pain and suffering concession is not determinative of pecuniary loss “serious injury” and should not be used against the defendant, the fact the plaintiff has “very considerable” pain and suffering impairment consequences translates in this case to an acceptance that the plaintiff is impaired for manual work, just as he is impaired for manual daily activity.
122In that regard, the defendant did not suggest that the plaintiff could return to the type of heavy work he did with the employer pre-injury.
123Therefore, the starting point for an assessment of pecuniary loss ‘serious injury” is that the plaintiff is a young man who is now precluded from full and unrestricted manual work. That alone is a “very considerable” consequence for him.
124Second, based on his oral evidence, the plaintiff struck me as a likeable and honest witness, but also someone whose skills are for blue-collar work. He impressed as a perfect candidate for work as a mechanic or with cars had he not been injured.
125Third, I am conscious that I am considering work capacity for the purpose of a gateway provision and that it is not a precise science, more so for a person under the age of 26 years at the time of injury.
126Fourth, contrary to the defendant’s contentions, it is not as simple as considering the plaintiff’s actual financial loss. Rather, the task is to assess his loss of earning capacity in accordance with ordinary common law principles. Once that is done, the task is then to assess whether on the evidence the plaintiff has established that such loss of earning capacity will be productive of an actual financial loss of 40 per cent or more on a permanent basis.
127The fact that the plaintiff may have a capacity either now or in the future for some of the jobs the defendant relied on, does not mean that he has not satisfied the pecuniary loss serious injury test.
128The plaintiff comes from a disadvantaged background. Before he was injured, he had barriers to finding work. His employment pool was confined to manual work. Now, his employment pool is substantially more confined, at best to light manual work.
129In my opinion, for a man who was a quintessential manual worker, it is enough to conclude that the loss of the capacity for unrestricted manual work, on the evidence and in accordance with common law principles establishes the requisite loss.
130Fifth, the medical evidence supports a conclusion that “after injury” the plaintiff has no realistic capacity for work. I accept his evidence that he could do some light work for a few hours[86] but with a substantial increase in pain, such that he would be unreliable to attend on a regular basis. He requires ongoing physiotherapy and pain killers, mainly for back pain. He has an inability to sit, stand, bend or lift for prolonged periods because of his back pain. I consider that these facts in combination means that even light work is unlikely to be realistic or a reliable option for him.
[86] T 48, L 22-23
131Therefore, in accordance with general common law principles, as an overview, the plaintiff has established the requisite loss to be entitled to the leave of the court to commence a common law proceeding for pecuniary loss damages.
Disentanglement
132That brings me to the contention of the defendant that the medical evidence relied on by the plaintiff had not adequately disentangled, or separated out, which impairment consequences for work related to which injury relied on, or from the psychiatric condition.
133The concept of ‘disentanglement’ has its origins in s.325(2)(h) of the Act which directs that the psychological or psychiatric consequences of a physical injury are only to be taken into account for the paragraph (c) definition of “serious injury”, namely a “permanent severe mental or permanent severe behavioural disturbance or disorder” and as discussed in decisions by the Court of Appeal such as Meadows v Lichmore (“Meadows”)[87].
[87] Meadows v Lichmore [2013] VSCA 201
134The proposition from cases such as Meadows is that the plaintiff bears the onus to produce evidence, including medical evidence, that identifies the physical injury relied on and the impairment consequences from the physical injury, excluding any contribution (if any) to such impairment consequences from a psychiatric or psychological condition. If the evidence does not sufficiently ‘disentangle’ the physical from the psychiatric/psychological, then the plaintiff will have failed to satisfy his evidentiary burden.
135In that regard, unlike the scenario discussed in Meadows, in this proceeding, none of the physical doctors expressed an inability to assess physical impairment consequences because of the co-existent psychiatric/psychological condition.
136The defendant’s submissions about disentangling are better understood as submissions about the state of the evidence and its contention that the plaintiff did not produce sufficient evidence about either the right shoulder or the spine, in isolation, to establish very considerable pecuniary loss consequences.
137As I shall explain, I do not accept the defendant’s contention that the medical evidence is so tangled, or bundled together, so that a serious pecuniary loss consequence is not established for either the low back or the right shoulder.
138First, in his oral evidence, the plaintiff gave what I consider to be reliable evidence that his major impairment for work was from the symptoms in his low back.
139Second, I also accept the plaintiff’s oral evidence that if he did not have back pain, he could push through his unrelated psychological problems and get himself to work.
140Third, as the plaintiff highlighted, Dr Aliashkevich carefully separated out the impairment caused by each injury.
141Fourth, in addition, on my assessment of the evidence from Dr Kee, what the doctor was really saying was that each of the plaintiff’s spine, right shoulder and psychiatric conditions produced a total incapacity for work. In Dr Kee’s words “Each of his injuries, when considered separately, each has contributed to his loss of employment and also his reduced social, domestic and recreational activities”.[88]
[88] PCB 138
142In other words, I do not understand Dr Kee to be bundling the injuries or conditions together, but rather to be expressing an opinion that each incapacitates the plaintiff for work.
143Pausing, as was noted in Findlay v Transport Accident Commission[89] for the purpose of a gateway proceeding, the evidence needs to be considered for the limited purpose of the application, which does not create any issue estoppel for issues that might arise at trial, which I note would extend to issues to do with vicissitudes and the like, which I am not required to consider. Further, as was stated in Dressing v Porter[90] provided the evidence establishes that a claimed injury is “serious” it is beside the point that some other injury or condition might also be “serious”.
[89] Findlay v Transport Accident Commission [2025] VSCA 126 at [61]
[90] Dressing v Porter [2006] VSCA 215 at [47]
144Fifth, I accept that Dr Slesenger expressed an overall opinion about work capacity, in which he bundled up the plaintiff’s various injuries/impairments. But also, in his reports he expressed individual restrictions from each of the claimed injuries to the right shoulder and spine[91]. That is evidence that can be relied on for an assessment of work capacity. In other words, like Dr Kee, the evidence from Dr Slesenger supports a conclusion of an incapacity for work from both the right shoulder and the spine that would effectively confine the plaintiff at best to light work from one or the other, or both, of those injuries.
[91] PCB 253
145The same comments about the evidence from Dr Slesenger can be made about the evidence from Dr Yong and Mr Dooley.
146Therefore, I consider that the evidence supports the conclusion that realistically in isolation, each of the right shoulder and spine injuries produce an incapacity for work that is permanent in that it will last into the foreseeable future.
147If forced to pick one injury as being “serious” then on the evidence that would be the injury to the plaintiff’s back. As mentioned, it was the focus of his answers during his oral evidence. He has had various diagnostic and therapeutic injections into his back without relief of his pain and requires ongoing physiotherapy and strong pain killers. In isolation, the back injury precludes him from any physical work. Because of back pain he cannot return to the heavy work he did pre-injury. He cannot now perform repetitive bending or lifting. He has difficulty sitting or standing.
148On my assessment of the evidence, while the plaintiff may have some theoretical capacity for light work, in my view realistically at present there is no employment for which he is now suited because of his back injury and that is likely to continue permanently.
149At the risk or repetition, based on the usual common law principles, because of his back injury, the plaintiff is now unfit for work as a labourer or mechanic. The loss of those options for him means that I consider he will have a loss of earning capacity that will be productive of an actual financial loss of 40 per cent or more on a permanent basis. In addition, when his age, lack of transferable skills, back pain and symptoms are considered, realistically he is unfit for any work, including the lighter jobs that the defendant relied on.
150Therefore, I conclude that the plaintiff has discharged his evidentiary onus to identify a physical injury, in this case the spine, that is productive of sufficient financial loss so that he is entitled to commence a proceeding for pecuniary loss damages.
151In addition, I also consider that his injured right dominant shoulder would produce sufficient impairment consequences to meet the pecuniary loss “serious injury” test.
152I accept that the plaintiff has unrelated health conditions, including a psychiatric condition that may or may not relate to his work injuries. But that is not relevant for this gateway provision, where the evidence otherwise establishes sufficient impairment and impairment consequences so as to constitute a “serious injury”.
Result
153Therefore, for the reasons expressed, the plaintiff is granted the leave of the Court to commence a common law proceeding for pain and suffering and pecuniary loss damages.
154I shall hear from parties as to the appropriate form of orders, including orders for costs.
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