Wells v VWA
[2025] VCC 495
•24 April 2025
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-23-05902
| MARK WELLS | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | Clayton | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 6 March 2025 | |
DATE OF JUDGMENT: | 24 April 2025 | |
CASE MAY BE CITED AS: | Wells v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 495 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left shoulder – reliability of plaintiff’s evidence about the consequences of his injury – whether consequences meet the test – loss of enjoyment of physical activities and daily activities
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Bezzina v Phi [2012] VSCA 161
Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Ellis Management Services Pty Ltd v Talyor [2013] VSCA 326
Hayden Engineering (2010) 31 VR 1
Jarvie v Sideliner ContractingPty Ltd [2024] VSCA 144
Philippiadis v Transport Accident Commission [2016]
Transport Accident Commission v Kamel [2011] VSCA 110
Sabo v George Weston Foods [2009] VSCA 242
Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181
Judgment: The plaintiff’s application is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.Saunders with Mr C. Woollacott | Slater and Gordon |
| For the Defendant | Mr R.Kumar with Ms J. Clark | Wisewould Mahony |
HER HONOUR:
1Mr Wells seeks leave to bring proceedings for damages for pain and suffering arising from an injury to his left upper limb.
2The applicant relied upon paragraph (a) of the definition of “serious injury” in s 325(1) of Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) — namely, ‘permanent serious impairment or loss of a body function’. The body function relied upon was the function of the lumbar spine. At trial, the applicant confined his claim to an application for leave to commence a common law proceeding for damages for ‘pain and suffering’ within the meaning of s 325 of the Act.
3To succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) the injury arose out of or during, or due to the nature of his employment, with the employer;
(b) the impairment caused by the injury, is permanent, in the sense that it is “likely to last for the foreseeable future”;[1]
(c) the pain and suffering consequences to the plaintiff are serious when judged by comparison with other cases in the range of possible impairments and can be fairly described as being more than significant or marked, and as being at least very considerable.
[1] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [33]
4There is no dispute that Mr Wells suffered an injury to his left, non-dominant, shoulder while working for the employer, Walkers, on 21 May 2021. Subsequent investigations revealed a tear of the supraspinatus tendon. In February 2022, Mr Wells underwent surgery for rotator cuff repair. He returned to work with the employer in August 2022. In September 2024 he ceased working with the employer and is now self-employed. He does not seek leave to pursue damages for loss of earning capacity.
5The issues in this case are:
(a) Whether Mr Wells’ evidence about the consequences of his injury are reliable; and
(b) Whether the consequences which I am satisfied are caused by the injury meet the test of “more than significant or marked and at least very considerable”.
6For the reasons set out below I am not satisfied that Mr Wells meets the test and accordingly his application is dismissed.
Background
7Mr Wells relies on two affidavits sworn 13 June 2023 and 3 February 2025, and two affidavits of his son, Levi Wells, sworn 5 February 2025 and 6 March 2025.
Mr Wells’ affidavit evidence
8Mr Wells was born in 1968 and is a qualified carpenter. He also has certificates in air conditioning installation, heavy freight driving, and civil construction.
9He started working with the employer in September 2018 as a domestic tiling assistant. His work involved floor and wall tiling, waterproofing, grouting, some carpentry work, deliveries, driving and supervising.
10He says that at the time of his injury he was planning to start his own bathroom renovation business and that he planned to maintain his employment with the employer while running that business.
11He had a motorbike accident around the age of 25 in which he sustained a broken right arm, dislocated left hip, a left knee injury and a thumb injury.
12He says he has experienced shoulder pain in the past, as well as muscle tightness in the left shoulder which responded well to massage therapy. He has also had back pain which improved after weight loss, right ankle pain after falling from a ladder in 2006, and some left knee pain which improved with time after an arthroscopy. In 2017 he was diagnosed with bowel cancer and underwent surgery and chemotherapy.
13Mr Wells says on the day of the injury he attended his general practitioner Dr Delmencio. He also attended physiotherapist Mitch Wingrove on 4 June 2021.
14He had an ultrasound guided cortisone injection into his left shoulder on 9 June 2021.
15He then saw orthopaedic surgeon Mr Eng on 15 September 2021 who recommended shoulder surgery. He did not proceed with surgery at that time.
16He attended orthopaedic surgeon Mr Price on 20 January 2022 and underwent a left shoulder arthroscopy and rotator cuff repair on 16 February 2022.
17He had two weeks off work following his injury, four months after the cortisone injection in June 2021, and a further six months following his surgery.
18In his subsequent affidavit, Mr Wells said he ceased physiotherapy in August 2023 and sought no further treatment from his orthopaedic surgeon. He continued to attend his general practitioner as needed. He said he moved to a 25-acre hobby farm in May 2024.
19At the time of swearing his second affidavit, he said he had ceased working for the employer after noticing that his hours there “began to dwindle”. He decided to transition to self-employment and has been working as a carpenter and tiler since then. He says as he works for himself, has control over the jobs he takes on, and often accepts jobs with other tradesmen which allows him to seek assistance with tasks he cannot manage alone.
20His hours and days of work vary, but he usually works about three days a week.
Medical evidence
21There is no real dispute about the medical evidence.
22Mr Wells had a large full thickness tear of the supraspinatus and underwent surgical repair on 16 February 2022.
23He had some post-surgical physiotherapy and mobilisation before returning to work.
24His general practitioner, Dr Delmenico, wrote in a report dated 28 November 2022 that following surgery Mr Wells engaged well with physiotherapy and at that time had difficulty with strength and function in his left arm, with forward flexion and abduction both affected, and difficulty elevating the shoulder above 90 degrees and forward flexion.
25On 13 February 2023 Mr Wells had a post-surgical follow up with Mr Price. At that consultation, Mr Price reported he was “almost doing full duties, no pain but strength hasn’t fully returned when doing o[ver] h[ead] activities. Still seeing physio. Examination: full ROM [range of movement], Treatment/Plan: continue to be sensible with lifting, continue supervised program with physio. r/v PRN.”[2]
[2] Defendant’s Supplementary Court Book 24
26He has not returned for any further post-surgical follow-up. He has not seen his general practitioner since January 2023. He takes no medication and has taken no medication including Panadol since, at the latest, early 2023.[3]
[3] Transcript (“T”) 21, 59
27Since his last physiotherapy session in August 2023 he has had no treatment.[4]
Expert opinion
[4] T 23
Associate Professor Romas
28In April 2023, Associate Professor Evange Romas, rheumatologist, conducted a clinical examination of Mr Well’s left shoulder. He noted a +2 supraspinatus atrophy and +1 deltoid atrophy. There was mild crepitus on active and passive glenohumeral rotation. He had active flexion of 110 degrees, extension of 50 degrees, adduction of 40 degrees, abduction of 120 degrees, internal rotation of 60 degrees and external rotation of 80 degrees. Dr Romas reported “very good supraspinatus strength”.[5]
[5] Defendant’s Court Book (“DCB”) 17
29Associate Professor Romas recorded no left shoulder pain, reported no weakness but some mid-range impingement, and noted Mr Wells could not scratch his back with his left hand and could not sleep on his left side.
Mr Moaveni
30In November 2024, Mr Wells was examined by Mr Ash Moaveni, orthopaedic surgeon. He conducted an examination and recorded the following range of movement: flexion 160 degrees, extension 40 degrees, adduction 30 degrees, abduction 150 degrees, internal rotation 50 degrees and external rotation 40 degrees. He noted that Mr Wells had reported ongoing pain in his left shoulder and arm, and reduced strength in his left arm and that Mr Wells reported that he had a “high pain tolerance”. He considered that Mr Wells was likely to be precluded from overhead activities and activities involving pushing, pulling, or lifting, and repetitive or prolonged use of the left upper limb.. He did not consider that Mr Wells had capacity to perform his pre-injury duties as a domestic tiling assistant. He considered the extent of Mr Wells’ incapacity would continue for the foreseeable future.
Mr Graeme Brown
31In December 2024, Mr Graeme Brown, orthopaedic surgeon, conducted an examination. He recorded “ongoing pain in the left shoulder” which was generalised but not constant and was aggravated by lifting his arm above shoulder height, on abduction and forward elevation. He recorded that Mr Wells occasionally experienced night pain if he moved his arm awkwardly. He recorded that Mr Wells had “very painful” episodes when the shoulder “clicks” in certain positions if he overdoes work, particularly lifting objects out in front of him without using his other arm or engaging in pulling or pushing.[6] He recorded that Mr Wells also complained of weakness in his shoulders and that he could only lift about two kilograms, compared to before the injury when he could lift over 20 kilograms. I note here that Mr Wells disputed that he had said he could only lift two kilograms and accepted that was not an accurate record of his lifting capacity.
[6] DCB 31
32Mr Brown recorded the following range of movement: 140 degrees flexion, 40 degrees extension and external rotation, abduction 120 degrees, adduction 20 degrees, external rotation in abduction 90 degrees and internal rotation in abduction 10 degrees. Mr Brown recorded normal strength in the supraspinatus, infraspinatus and subscapularis. Mr Brown reported slight limitation of movement in Mr Wells’ shoulder.
33Although the medical experts who have examined Mr Wells have recorded slightly different ranges of motion of the left shoulder, in all those assessments Mr Wells demonstrates a somewhat restricted range of movement, most notably in flexion, abduction and internal rotation.
Other medical conditions
34Mr Wells had a total left hip replacement in 2019. In about May 2022, he had a recurrence of persistent left groin pain. Dr Delmenico records that pain as “the same as that experienced before the hip replacement”. Dr Delmenico referred Mr Wells to surgeon Mr Andrew Byrne who had performed Mr Wells’ earlier hip replacement.
35Mr Wells could not recall whether he had attended Mr Byrne for follow up:[7]
[7] T 47-48
The note of your general practitioner in July of 2022, … it says, 'Severe left hip osteoarthritis post total hip replacement'. Have you had a discussion with Dr Delmenico about there being severe osteoarthritis in your hip?---No.
That's news to you?---When I got the hip replacement they said it was because of arthritis.
But you agree that in this time the pain that you were experiencing was very similar or the same pain as that which you were experiencing before your hip replacement?---It wasn't as severe.
And Dr Delmenico referred you back to Mr Burn, didn't he, in July of 2022?---I think so.
Did you see Mr Burn?---I can't remember.
It would be pretty concerning for you, wouldn't it, to be having the same pain as you'd had before the hip replacement?---It was.
And you'd wanted to be pretty careful with your hip given it's a pretty significant thing, isn't it, to have your hip replaced?---I didn't have a choice.
HER HONOUR: Sorry, I'm just not - didn't have a choice about what?---Of being careful.
MR KUMAR: And it impacts you on things like your mobility?---Not now.
Things like climbing up ladders, that's the kind of thing that would be impacted by the symptoms in your hip?---Not now.
What about navigating uneven ground, would that be a problem for you?---Not now.
Do you say that the pain that you had in 2021 and in 2022 just went away on its own?---No.
What was it then that helped assist that pain?---I lost 40 kilos.
And when did you start - when did that take place?---21.
And under whose management was that?---Mine.
You just thought you would do it?---I had to do it. I was 130 kilos.
Was it a discussion that you had with somebody or you just - - ?---My son. My second son.
You lost it in 2021?---It was around that time, yes.
So the pain that you had in the middle of 2022, which led to your doctor referring you to Mr Burn, what about that pain, how did that pain resolve, if you say it wasn't on its own?---2022 was just after the, sitting around after the surgery, and I put quite a bit of weight back on.
So it was after you then - - - ?---And then I lost it again.
In the context of, I guess, going back to work and undertaking the full-time modified duties?---More mobility, yes.
36As I understand it, Mr Wells’ evidence was that he had lost 40 kilograms in 2021 and regained that weight in 2022 in the context of being immobile following his surgery, resulting in an aggravation of his hip symptoms. He then lost that weight again after becoming more active and mobile at work. He says the hip pain resolved without medical intervention.
Credibility
37Mr Wells claimed a number of consequences as a result of his injury. His evidence about the claimed consequences was attacked. In addition, the defendants attacked his credibility in relation to the following specific aspects of his evidence.
Medical treatment and pain relief
38The defendant submitted Mr Well’s affidavit evidence that he saw his general practitioner as needed and took Panadol as needed “but regularly” had exaggerated his treatment needs to bolster his case.
39In oral evidence Mr Wells conceded that he had not seen his general practitioner or anyone else for any treatment for his shoulder since 2023, and that he had stopped taking Panadol shortly after swearing his first affidavit. He explained his reasons for not taking medication, including that he did not want side effects from medication, that he had seen the effect of medication dependence on others and that he believes that pain is “there for a reason and it gives you your limitations”.[8] Mr Wells said he does not believe a lot of what medical professionals do because “they’re controlled by big pharmaceuticals”. He did his own research when he had cancer and took a different path to that recommended by his treaters. He says he does not like synthetic drugs and the more he reads, the more he does not like them.[9]
[8] T 59
[9] T 61
40He said that although he continues to experience discomfort and pain in his left shoulder, he chooses not to take pain relief medication as he has a high pain threshold and would rather tolerate the pain. By way of example of his high pain threshold, he said when he underwent a hip replacement procedure, he took pain medication for only two days post-operatively.
41I do not think it is likely that, at the time of swearing his first affidavit, Mr Wells was taking Panadol “regularly” as attested, and that thereafter he decided to cease taking it. Mr Wells’ views about medication are long standing and have existed at least from the time of his diagnosis with cancer.
42Accordingly, I think that the evidence in his affidavits that he attended his general practitioner “as needed” and took Panadol “regularly” is not accurate. The true picture is that Mr Wells has taken no medication since at least early 2023, and has had no treatment for his shoulder since ceasing physiotherapy in August 2023. He has not attended his general practitioner in relation to his left shoulder, or for any other reason, since January 2023.
Prior shoulder and hip injury
43The defendant attacked the plaintiff’s evidence that he had not previously had a left shoulder injury.
44There are references in the general practitioner’s notes from 2011 to “long standing bilateral shoulder pain getting worse”. Mr Wells disputed that he had bilateral shoulder pain and said that he was having difficulty at that time with right shoulder pain. He could not recall whether he saw a physiotherapist at that time or just had massage therapy. He said he was having “muscle tightness” caused by physical labour, not shoulder pain. He did not recall any discussion of “impingement syndrome” as recorded in the general practitioner notes.
45Mr Wells also did not recall attending his doctor in 2014 for shoulder and back care and could not recall whether he saw a physiotherapist at that time.[10]
[10] T 27
46Having regard to the medical records, it seems likely that Mr Wells did have some bilateral shoulder pain.
47Given Mr Wells’ evidence that he does not always follow doctor’s advice but would “make his own decision”, it is difficult to know whether the lack of medical records indicates that this was a transient and resolving issue, or something more long term.
48Nevertheless, I am satisfied that Mr Wells did not have any significant left shoulder problem prior to the injury, given his capacity to undertake manual work.
49The defendant also submitted that Mr Wells’ hip replacement surgery was likely to impact on his experience pain, capacity and work restrictions. Other than the note in 2022 of a recurrence of hip pain, there is no medical material before me relating to hip problems after his replacement. None of the medico-legal doctors have opined about the impact of the hip condition.
50Apart from taking judicial notice of the fact that a hip replacement will generally have to be revised at some point, and to note that the timing of any revision might occur within Mr Wells’ working life, there is no evidence upon which I can conclude that Mr Wells’ hip condition has any specific impact on him at present. Its impact on his at some unknown point in the future would be a matter of speculation. I have disregarded the hip replacement and hip condition in my assessment of the consequences for Mr Wells of his injury..
Certificates of incapacity
51The defendant also attacked Mr Wells’ credibility on the basis that he had been dishonest in providing certificates of incapacity. Mr Wells had submitted certificates of incapacity for periods when the employer was shut down over the Christmas break in 2021 and 2022 to receive weekly payments from the insurer at that time.
52Mr Wells agreed that he did have capacity for work during those periods. He said, because he was casual, he was not paid during the shutdown period. In previous years, he had been able to obtain other casual jobs to tide him over during the shutdown period. Over the 2021 Christmas shut down, he did not have capacity to obtain other casual work due to his unrepaired shoulder injury. Over the 2022 Christmas shut down he likewise had not returned to full use of his shoulder post operatively, and did not have capacity to obtain other casual work.
53He says he was told to put in certificates of incapacity by his rehabilitation provider to access weekly payments through WorkCover.
54Mr Wells had capacity for some work in the shutdown periods in 2021 and 2022, as evidenced by the fact that he was working for the employer up to and after each shutdown period.
55He gave a straightforward account of these events and I accept that his ability to find other short-term work, particularly prior to his surgery, would likely have been impacted. During 2021 he had an unrepaired shoulder injury, and during the 2022 shutdown he was some 10- or 11-months post-surgery and had returned to work approximately 4 or 5 months earlier. There are no medical records from that time. The closest in time is Mr Price’s record from 2023 noting Mr Wells had no pain, but was not yet back to full strength.
56In that context, submitting incapacity certificates, apparently on the suggestion of his rehabilitation provider, does not cause me to draw any adverse inference as to Mr Wells’ credit.
Findings on credibility
57I am not satisfied that Mr Wells’ credit was damaged in relation to his prior shoulder injury, his hip injury or the certificates of incapacity he filed.
58I am satisfied that Mr Wells’ affidavit material in relation to his ongoing treatment was an exaggeration and was intended to bolster his case by suggesting he had an ongoing need for and use of medication, and that he still saw his medical treaters, at least from time to time, when that was not the case. I do not think this is a significant matter that impugns his credibility to the extent that I should disregard his evidence.
59However, this does cause me to carefully consider all the available evidence and to accept his affidavit material less readily, particularly in relation to his experience of pain, and particularly where it conflicts with his oral evidence.
60The affidavit material was carefully constructed, undoubtedly not by Mr Wells, to create an impression that Mr Wells was in a significant degree of daily pain prompted by any movement of his left arm and shoulder and which has impacted almost every aspect of his life.
61His oral evidence was more equivocal about the pain he experiences.
62I am mindful of the caution to be exercised in drawing conclusions from the demeanour of a witness. Mr Wells was short to the point of curtness in his responses. This came across, on occasion, as obfuscation, however I accept that this could also have reflected the plaintiff’s lack of familiarity with court proceedings and his desire to ensure he did not say ‘the wrong thing’. Certainly there were occasions where evidence had to be extracted with some difficulty and left me without a clear understanding of the true situation.
63Rather than conclude that this establishes that Mr Wells was not an honest and straightforward witness, I instead look at the content of his evidence, both in his affidavits and in Court, and the other evidence available in relation to work, pain, and his activities of daily living in order to determine whether the impression created by the affidavit material is accurate and, if not, what impact this has on the opinions of the medico-legal experts relied upon.
Consequences of his injury
64Mr Wells claimed the following consequences arising from his injury. He said he had difficulty:
(a) performing tasks that required him to reach above shoulder height;
(b) performing tasks that involved heavy or repetitive lifting;
(c) lifting even relatively light weights in his left hand;
(d) supporting himself by putting pressure on his left arm, for example to push himself out of a chair or to support himself getting out of the car;
(e) getting into his truck;
(f) driving, as holding his left arm outstretched for lengthy periods was painful;
(g) handling animals such as sheep and chickens, and moving and maintaining farming equipment on his 3-acre lot;
(h) performing simple household tasks such as changing a light globe;
(i) moving and chopping firewood;
(j) dressing and undressing, as it is painful to put on or take off a top;
(k) sleeping;
(l) socialising, as he finds it difficult to go out and enjoy himself when he is in pain;
(m) fishing, as he finds it hard to launch his boat and control his fishing rod;
(n) scuba diving, as it is hard to swim and to lift the tank on his back; and
(o) working, as he often has to say no to lifting things and often requires assistance to perform his role as a driver.
Capacity for work
65Although Mr Wells brings his application only in relation to pain and suffering, he relies heavily on the consequences for him in relation to the impact of his shoulder injury on his work capacity.
66In his first affidavit, Mr Wells said after his surgery he returned to work but was limited in his ability to undertake his former role and mostly drove trucks. He said he could not cope with any heavy lifting. In his second affidavit, he described this work as “light duties for the most part”. He says he was asked to perform heavier work which he would avoid if he could. If he could not avoid heavier tasks, he would perform the work in such a way as to protect his left shoulder, for example using his right hand and arm to carry most of the load, and performing tasks below waist height.
67He now works in his own bathroom renovation business, but is limited in the work he can undertake and, as a consequence, in the types of jobs he accepts.
68Mr Wells’ former boss, Ryan Walker, said in his affidavit of 11 October 2023 that Mr Wells had notified him in August 2023 that he was no longer available to work on Mondays because he was working in his own business. Mr Walker said that Mr Wells worked as a tiler on several occasions in January 2023. In April 2023, he used a demolition saw to cut window openings in a concrete slab, and in August 2023, he again used a demolition saw to cut a concrete slab. In February 2024, Mr Wells performed tiling, jackhammering, and grinding work, and tiled a kitchen wall without assistance. Mr Walker said that Mr Wells requested tiling work and was given such work when it was available. Mr Walker also said the work Mr Wells undertook as a driver required him to load and unload items including boxes of tiles weighing approximately 15kg, insultation packs weighing approximately 10kg, and plaster sheets weighing approximately 15kg. Mr Walker was not cross-examined on his evidence.
69Elise Heenan, Human Resources Manager at the employer, said the employer had limited work available on the days the plaintiff was available. After he ceased working at the employer in September 2024, she left him on the payroll system in case he returned to work there but as he never did, she deleted his details in January 2025.
70None of Mr Wells, Mr Walker or Ms Heenan say that Mr Wells left the employer because he could not do the work required. Therefore, whether he left because of dwindling shifts, or because he wanted to work for himself is of little relevance.
71The defendant submitted that Mr Wells’ evidence in his first affidavit - that he was primarily driving trucks - misrepresented the true position. Mr Wells’ subsequent affidavit, where he disclosed undertaking “heavier tasks” for the employer, came only after Ryan Walker’s affidavit in October 2023 attesting to the dates Mr Wells had worked and the work he had performed.[11] The defendant says these tasks could not be described as light work. The defendant submits I should infer that Mr Wells was not honest about his work capacity in his first affidavit.
[11] Plaintiff’s Court Book (“PCB”) 23
72Mr Wells, in oral examination, accepted Mr Walker’s evidence about the tasks he had undertaken with the employer after his injury.[12] In cross examination, Mr Wells also accepted that he had done jackhammering, cutting concrete slabs, tiling, screening and water proofing both before and after his injury. There was some dispute about whether he had done demolition after the surgery, but he agreed that he had used a jackhammer and a demolition saw to remove an old bathroom and accepted that this was demolition work.[13]
[12] T 29 - 30
[13] T 35
73At one point he said he had not done carpentry after the injury,[14] though he later said, at least in relation to one job, he had done the carpentry work.[15] In fact, as demonstrated by the invoices for work he did after leaving the employer, dealt with in more detail below, he has done considerable carpentry work since the injury.
[14] T 35 L13
[15] T 36 L 19
74He said jackhammering did not have a lot of impact on his left shoulder as he was able to use his right hand and hip and walk behind the jackhammer.[16] He also said floor grinding is not a task that is “hard” on his left shoulder. He said using the demolition saw required him to hold the saw with his right arm and pull the trigger with his left hand. He said it did not have any effect on his left shoulder. Cutting concrete, similarly, did not have any impact on his left shoulder because he “used the floor as a rest for the saw and I just guided it along”.
[16] T 64
75When taken through the work he had done after the injury, it was similar to the sort of work he had undertaken before his injury, albeit that a greater proportion of his work after his injury was driving trucks. Mr Walker was not cross-examined on his evidence that tiling work was given to Mr Wells when it was available.
76Mr Wells was asked “thinking about the work you’ve done as a tiler and as a carpenter in the past – is that work that you would regard as heavy work?”, to which he replied “that was not heavy work”.[17]
[17] T 67
77In relation to other work he had performed since his injury, Mr Wells conceded that he had assisted installing air-conditioning units for his nephew, which he had not mentioned in his affidavits:[18]
[18] T 41
Did you install an air conditioning unit in a medical centre in July 2023?---Yes.
Kunatjarra Medical Centre?---Yes.
Was that done through that - under what business did you do that work?---That was for my nephew.
Right?---He called me in to put it in with him.
Does he have a business doing installation?---He's an electrician.
Right. But not a specialist in installing air conditioners?---He has installed air conditioners with me before he was an electrician.
Right?---So he knows his way around it.
But he needed help on this job and you were the person that he would turn to?---Yes.
Has that happened on more than one occasion?---Yep.
How many times have you helped your nephew with that kind of work?---Four, maybe five times.
Over what period? When did he first ask you and when has he last asked you?---Over the last four years.
78He denied that installing air conditioning units would require him to lift anything heavy:[19]
What's the weight of a wall mounted air conditioner do you say?---Indoor unit 15 kilos, outdoor unit up to 60.
And you'd carry a 15-kilogram unit by yourself and a 60-kilogram unit with somebody else, I suggest?---That's what trollies are for.
But at some point you're going to have to manually carry it by hand, aren't you?---No.
You're going to have to lift it up from the trolley to mount it?---That's where I've got helpers.
That's why I'm saying, in relation to the 60-kilogram units, that's something that you might do with another person?---With an air-conditioner you've got a compressor at one end and a radiator at the other. The compressor end is probably two-thirds of the weight and together, if we had to lift it, we lift it, but most of the time they're mounted on the ground.
[19] T 53
79It was difficult to understand exactly what incapacity for work he alleged arose because of the injury. On the one hand, his affidavit say he had difficulty with heavier tasks, he tried to avoid them, and where he could not avoid them, he did them in such a way as to protect his shoulder. On the other hand, his oral evidence suggests that the tasks identified as “heavier tasks” in his affidavit were not heavy at all, and had little impact on his shoulder.
80The defendant relied on invoices Mr Wells had produced for work he had performed between September 2023 and January 2025.
81This work included:
(a) wall-mounting air-conditioners both indoor and outdoor, including reverse cycle air-conditions, bed-room air-conditioners and air-conditioners on a flat roof;
(b) roughing in for air-conditioners;
(c) moving or removing air-conditioning units;
(d) carpentry work for bathroom renovations;
(e) carpentry work for an architrave and cavity sliders;
(f) tiling work including removing tiling, de-nailing floor, preparing, replacing and repairing underlay and tiling a significant area over 20 square meters;
(g) pulling out and replacing a rotted laundry door frame, , refitting original door to new frame, weather sealing the trim under the door and between the window and door frame;
(h) demolishing old shower bulkheads, and an ensuite shower;
(i) installing compressed cement sheet flooring;
(j) removing and disposing of rubbish;
(k) preparing a screed show base (using nine bags of premixed screed);
(l) waterproofing bathrooms;
(m) grouting bathrooms;
(n) caulking work including caulking an area of 21.6 square metres;
(o) supplying and installing an outdoor air conditioning unit on brackets above a flat roof;
(p) fitting cavity door and associated door furniture, architraves and assorted skirting and trim;
(q) fitting a vanity unit;
(r) installing a kitchen splashback;
(s) fitting shower screen, towel rail and hooks;
(t) cleaning and repairing flat roof; and
(u) repairing door frames.
82Mr Wells accepted that he had undertaken all the work identified in those invoices. He agreed that the invoices did not represent the entirety of the work he had undertaken since September 2023.[20]
[20] T 44
83The defendant relied on the evidence of Mr Robert Maxwell who swore an affidavit and gave oral evidence.
84Mr Maxwell is Mr Wells’ brother-in-law and former colleague at Walkers. Mr Maxwell was clearly uncomfortable giving evidence that could potentially damage Mr Wells’ claim. He said Mr Wells had discussed a job he had undertaken in his own business while still employed at Walkers. This conversation occurred in around June 2023 and related to a bathroom renovation Mr Wells had done in Melton two weeks earlier. The scope of work for the renovation included demolition, removal of bathroom linings, jackhammering and cutting of concrete slab, carpentry including removal and replacement of timber studs, tiling, screeding and waterproofing. Mr Wells had told Mr Maxwell that he worked with another man but did most of the work himself.
85This conversation had occurred in the vicinity of Mr Maxwell’s boss, the director of Walkers. The boss was aware of the conversation because when Mr Wells left, the boss stood up and looked at Mr Maxwell. Mr Maxwell said “if Mark had told me that outside I wouldn’t have done anything, but because the director was there and there’s an issue with his injury and that, I was obligated. But he looked straight at me and basically, yeah, what could I do?”.[21]
[21] T 81
86I interpret this to mean that, because Mr Wells is Mr Maxwell’s brother-in-law, Mr Maxwell would not have come forward to give evidence had the conversation had taken place privately. But because his boss heard Mr Wells discuss the job with Mr Maxwell, and the boss knew that Mr Maxwell was aware he had heard the conversation, when Mr Maxwell was asked to attest to the conversation in an affidavit he felt obliged to do so.
87I accept Mr Maxwell’s evidence. However, although it added some weight to the submissions the defendant made about Mr Wells work capacity, Mr Wells had already accepted, as set out above, the tasks he had undertaken since the injury which were very much in line with the tasks Mr Maxwell said Mr Wells had told him he had performed.
88When asked what sort of jobs his injuries ruled him out from performing, he said “Well I definitely can’t do house frames”. He said he could not do big meterage areas for tiling and that he could not lift 600 x 900 square tiles. He said “I stick to small jobs and work them in”.[22] He said he would seek assistance for overhead work and heavy lifting. Other than his explanation that he could not tile using 600 x 900 square tiles, there was no evidence about what would constitute a big meterage area, and whether this was the sort of work that, in his own small business, he would have expected to obtain but for his injury.
[22] T 67
89When asked about his capacity to work more hours, he said he would “like to think” he could handle four days, but for now preferred to stick with three, as he was earning enough and did not want to overextend himself. [23]
[23] Ibid
90I am not able to conclude, on the basis of Mr Wells’ evidence, what work tasks he was required to regularly perform before his injury which are now outside his capacity.
91There was no suggestion in any of the material, in any of his affidavits, or his oral evidence, that his work with the employer involved building house frames or doing big meterage tiling with 600 x 900 square tiles. There was no evidence about the extent to which Mr Wells was required to work overhead prior to his injury. Nor is it clear whether he was required to engage in heavy lifting, as he did not consider tiling, most air-conditioning installation work, demolition saw cutting, or jackhammering to be heavy work. There is no evidence about what sort of heavy lifting tasks he was required to regularly perform in his work before his injury which were now outside his capacity.
92The invoices, and the evidence of Mr Maxwell and Mr Walker suggest that Mr Wells was performing substantially the same sort of work after his injury as he had been required to perform before his injury.
93Therefore, the degree to which, post injury, he has required assistance from others in performing that work is an important element in establishing whether his injury meets the test. However, his evidence was general and vague in this regard.
94Some tasks would require assistance whether or not he had a shoulder injury, for example lifting a 60kg air-conditioning unit and other heavy lifting.
95There was no attempt to identify what percentage of the time he called in others to help. In his affidavit he said he “often” would require the assistance of others, but there were no records, invoices, or documents, to support the proposition that a substantial amount of the time he was reliant on others in his work. I had no sense whether it was a daily, weekly, monthly or less frequent occurrence.
96In relation to work he had done with Mr Ramasamy he gave the following evidence:[24]
[24] T33-34
At some stage were you in some discussions with Nathan about going into partnership together?---I was.
And on this job that you agree you told Bob about in June of 2023, that wasn't the only job you'd done together, was it?---It was.
Do you say that the whole time that you first met Nathan to now, you've only ever done one job with him?---I didn't say that.
How many jobs have you done with Nathan?---With Nathan, one job.
Right?---For Nathan, I've worked several times.
You've worked for Nathan several times. So you're drawing a distinction between when you worked as a partnership, as opposed to when he's subcontracted to you?---He's got me to work for him subcontracting, yes.
Yes. You being his subcontractor?---Yes.
And so when you say there's only been one time that you'd worked with him, what's the nature of the arrangement on that time?---That job was 50/50.
That was a partnership?---Correct.
And there are other jobs where you subcontract the tiling component of the work to him, where he is your subcontractor?---I don't believe so. He has helped me in the past but I don't believe I've subcontracted him to me.
How has he helped you then? What's the nature of the help that he's provided?---He'll do one day for me and I'll do one day for him.
Right. So you're saying it's just a - there's no formal agreement in place, you just sort of swap services?---Yes.
So you won't pay him and he won't pay you because it cancels each other out?---That's happened.
And there'd be quite a lot of jobs that you've done where both you and Nathan have worked on the same job, whatever the arrangement is?---Less in the last 12 months. Not very many.
But the job, June of 2023, that wasn't the first time that you'd both been undertaking work at the same job?---I don't think so.
There have been quite a few jobs where both of you had been working together?---Correct.
Not with Walkers, I mean through your own arrangements?---There'd been a couple.
97Mr Wells was drawing a distinction between working “with” and working “for” Nathan. It seems he did not consider occasions when he and Nathan had swapped services to be working either “with” or “for” Nathan.
98When asked how he divided the work in his own business with Nathan, on a particular job, he said the division was 50/50. He was asked in re-examination what he meant by that and he said “money wise it was 50/50”. When asked about the division of labour he said “He did – I assisted him with tiling…that includes mixing glue, mixing the screed for the shower. He did the jack hammering, I took the rubbish out. I did the carpentry”. When asked why the work was divided up that way, he said “It’s the way we always did it”. This suggests there was more than one job they did together. It is likely that, whether Mr Wells was working “for”, “with”, or swapping services with Nathan, this was the division of labour. When pressed by his counsel as to why the labour was divided this way, he said “He’s a better tiler than me and he’s faster”.[25]
[25] T 66
99The work division between Mr Wells and Mr Ramasamy was primarily based on their relative strengths as tradesmen. Although Mr Wells worked as a domestic tiling assistant, he was not a qualified tiler. He readily conceded that Mr Ramasamy was able to do more intricate tiling work at a faster pace than him.
100His said that in his own business, primarily undertaking bathroom renovations, he will “call another tradesman on site, a friend or my sons who will help me with odd jobs”.[26]
[26] PCB 24
101He was asked in cross-examination about the work he did with others and the work he did on his own. His answers were rather curt, but eventually he conceded that, other than where there was a lot of tiling to be done and he might bring in another tiler such as Mr Ramasamy, he did a lot of the work by himself.
102In Levi Wells’ affidavit dated 5 February 2025 he said “at times I have to help him put pieces of timber onto his truck before I go to bed or first thing in the morning” and that “occasionally he would ask me to attend job sites if I can to assist him with moving and loading heavy materials or odd jobs that he struggles to do on his own”. This does not provide me with any information about how frequently that would occur and with what sort of jobs the plaintiff would require assistance. Loading and unloading timber might often require more than one person, regardless of the state of Mr Wells’ shoulder. The use of words such as “at times” and “occasionally” does not support an inference that a substantial portion of the time Mr Wells is reliant on Levi for assistance.
103Although Mr Moaveni considered that Mr Wells did not have capacity to perform his pre-injury duties of domestic tiling assistant, he noted that “Mr Wells has returned to work performing similar tasks to the pre-injury work as a full-time self-employed contractor, specialising in bathroom renovations, tiling and carpentry. He is able to modify his use of the left arm to accommodate his functional limitations.”[27] It is unclear why Mr Moaveni considers Mr Wells does not have capacity for his pre-injury duties and whether this is based on an assessment of the tasks required in those duties.
[27] PCB 72
104The medical evidence supports a finding that Mr Wells has a restriction in his range of motion. However, it is not clear to me what impact the restricted range of motion has on Mr Wells’ capacity to perform his pre-injury tasks or his capacity to perform his current work. To the extent the medical opinion indicates limitations in his work capacity, this is based on information provided by Mr Wells, rather than on an assessment of the actual demands of his pre-injury duties and his demonstrated current capacity.
105While I accept in a general way that a limitation on the range of motion caused by injury or provoked by pain is likely to have some impact on an individual’s capacity for manual work, it is the plaintiff’s burden to establish, on the balance of probabilities, the precise incapacity caused by the claimed injury.
106I am not satisfied the tasks Mr Wells claims he can no longer perform due to his injuries – such as heavy lifting, overhead work, large square tiling, and putting up house frames – were duties he was required, or regularly required, to carry out before his injury, or that he intended to continue doing those tasks, such that his inability to do them represents a loss to him.
107Nor does Mr Wells’ evidence demonstrate that the work he was doing for the employer was more satisfying, challenging, or fulfilling than his present work. He does not say that no longer working for the employer is a significant loss to him.
108Nevertheless, as noted in Ellis Management Services Pty Ltd v Talyor[28] – the loss of enjoyment from activities one used to do, or the frustration of being unable to do something to the same extent one previously could, is a matter to be considered when assessing the pain and suffering consequences that result from injury.
[28] [2013] VSCA 326
109I accept that being unable to do overhead work and perform heavy lifting to the same extent he was able to prior to his injury would be a cause of frustration and, in that sense, represents a pain and suffering consequence that is to be considered when assessing the consequences of the injury to him.
Experience of pain
110In his affidavit of June 2023 Mr Wells said he had “ongoing pain” in his left arm and shoulder, restricted movement in his left arm, and reduced strength in his left arm.
111In his affidavit of 3 February 2025, Mr Wells said he continued to experience pain “regularly” throughout the day which came on with “any sort of use of my left arm or manual handling and can last for hours and days at a time”.[29]
[29] PCB 21
112He said the pain was located deep within the left shoulder joint. He described the pain as an aching sensation which became sharper as the severity increased. He regularly experiences a “click” in his left shoulder followed by an increase in pain. His left shoulder pain travels down his arm from time to time.
113He said tasks such as pushing and pulling or repetitive movements aggravate his left shoulder pain. He continues to struggle with movements in his left arm, particularly movements above shoulder height. He says when performing tasks that require him to use his left arm, he takes his time to “try to reduce the pain that follows”. He has experienced reduced grip and general strength in his left hand. He said he feels that his left shoulder “has become largely dysfunctional” since his injury. He avoids using his left shoulder when he can and when he does use it he will “pay for it with increased pain which can last for hours and into the following day”.
114He said that because of the pain and reduced function of his left shoulder he relies heavily on his son, Levi, and his wife, and that managing the hobby farm is a “challenge”.
115Mr Wells’ counsel submitted that he had a degree of daily pain which he endures in a stoic fashion.[30]
[30] T 14
116This submission is not supported by:
(a) his oral evidence that he had adapted his way of doing things so that he does not have pain.[31]
(b) his oral evidence that he does not have a need for pain relief.[32]
(c) his evidence that he has pain when he “lifts stuff and that’s it.”[33]
(d) his oral evidence that it was reasonably accurate, as Mr Brown had recorded, that he did not have any difficulties with activities of daily living, including dressing and personal care and that he was involved in housework such as cooking and cleaning, but avoids heavy lifting. I note here that he also said that this was because he had adapted a way of doing things so that he did not have pain and he did not use his left arm for as much heavy work “because of the pain”. [34]
(e) Associate Professor Romas’ record that Mr Wells had no left shoulder pain and no weakness;
(f) Mr Price’s note from 13 February 2023 that 12 months post-surgery, Mr Wells was back at work “almost” doing full duties, that he had no pain but his strength had not fully returned when doing overhead activities and he was continuing with physiotherapy; and
(g) the report of Dr Prytula, a psychiatrist who examined Mr Well for the defendant, in April 2023 that Mr Wells was not in any immediate pain from the shoulder.
[31] T 50
[32] T 23
[33] T 72
[34] T 50
117In the months prior to his first affidavit in June 2023, Mr Wells had reported no pain or minimal pain to the three medical professionals he had seen – Dr Prytula, Associate Professor Romas and Mr Price. At the time of and after swearing his affidavit in June 2023, his account of both the regularity and severity of his pain significantly increased.
118Mr Wells said, in relation to those reports to doctors prior to June 2023, “I don’t like to complain. I just try to do my best. The pain that I get is when I work. When I was talking to the doctors I said no, I don’t get the pain when I’m just moving, like my arms like this, it’s when I lift stuff and that’s it”.[35]
[35] T 72
119I consider that to be a more accurate reflection of Mr Wells’ experience of pain than the account in his affidavit of daily pain lasting hours or days, provoked by almost every movement. He is not in pain all the time, or on every movement, but pain is provoked by certain actions.
120There is no evidence that Mr Wells experienced a significant increase in left shoulder pain in around June 2023. This suggests that his history to doctors after that time overstated his experience of pain.
121According to the affidavit of Ryan Walker and confirmed by Mr Wells, from January 2023, Mr Wells had done work that would require him to use his left arm.
122The evidence set out in Mr Wells’ affidavit is not consistent with his evidence in Court nor his evidence to doctors prior to that affidavit. His report of constant daily pain that lasts for hours and into the next day which is provoked by almost any use of the left arm is also inconsistent with the work he was performing both at the time of swearing his affidavit in June 2023 and subsequently.
123The more likely picture is that Mr Wells does not have regular, daily pain or pain which lasts for hours and days. It is more likely that he has, as he said, adapted his way of doing things so that he does not have pain.
124This does not mean that Mr Wells’ shoulder does not, or cannot cause him pain. I accept that he has adapted to avoid causing pain to his left shoulder and arm but that movements, particularly overhead movements and lifting, can and will provoke pain.
Hobby Farm
125Mr Wells says he moved to the hobby farm as a “lifestyle” choice but struggles with its upkeep and management and as a result relies heavily on his son and wife.
126He said that since moving to his 25-acre hobby farm he and his wife had taken on 25 sheep, two cows, two turkeys, dogs and chickens. He relies heavily on his son, Levi, his wife, and the “various pieces of machinery” purchased since moving to the farm. He gave, as examples, that he now had a tractor, excavator and wood splitter which reduced the manual handling required and “provides me with an opportunity to help out with some of the heavier tasks whilst protecting my left shoulder”. He said he contributed to some of the household cleaning but avoided tasks that required him to use his left shoulder.
127Levi Wells also says in his affidavit that there are lots of jobs on the farm that he does, because his father is unable to do them. He says that he has to wrangle livestock to hold them steady when his father has to administer a vaccine or medicine, and that he also has to lift heavy items such as hay bales and stock feed. Levi says he does house maintenance such as climbing a ladder and holding items in place while Mr Wells drills the item into position, because Mr Wells cannot use his left hand for the task. Levi says Mr Wells purchased an excavator, tractor and lawn mower when they moved to the property.
128The defendant submits that Mr Wells’ purchase of and move to his 25-acre hobby farm in 2024 supports its case that the consequences for Mr Wells do not meet the test. The defendant says if Mr Wells were as restricted and in as much pain as he says, he would not be able to manage a substantial hobby farm.
129Mr Wells agreed in cross examination that the farm equipment would be necessary regardless of his shoulder injury.[36] When asked whether, but for the excavator, he would be digging fence posts for the 25-acre property he said “I try not to but they were a necessity we probably would have bought anyway, but we’ve got machines to do all the heavy lifting and they weren’t bought in – they would have been bought anyway”.
[36] T 69
130In fact, it transpired that he had owned a tractor for the last seven or eight years, well prior to his move.
131I accept that Mr Wells’ restricted range of movement and the pain he experiences with certain movements and actions are likely to impact on his ability to work on and manage his hobby farm.
132However, I am not persuaded that the impact is significant. It is inherently unlikely that Mr Wells would have chosen to move to a 25-acre hobby farm and take on substantial commitments with livestock if he were not confident that he could manage the tasks involved, albeit with some assistance from family members.
Scuba Diving
133In his first affidavit Mr Wells said scuba diving was “now difficult as I find it hard to swim and lift the tank onto my back. I no longer do this”.[37]
[37] T 52, PCB 19
134This implies that he was involved in scuba diving until the time of his shoulder injury. Implicitly it suggests he has attempted to scuba dive since his injury and found it difficult to swim and lift the tank onto his back.
135In his second affidavit Mr Wells said “I loved scuba diving prior to suffering injury. Over the years I have acquired all the necessary equipment and enjoyed diving for crayfish in Victoria. Whilst I dove more regularly whilst living in Queensland and was limited after arriving in Victoria due to my cancer battle, I was looking forward to getting back into diving having recovered well. I grew up around the water and loved to scuba dive and free dive whenever I got the chance. I would dive every few months when I had the opportunity. Unfortunately I do not feel safe in the water as I have lost confidence in my capacity to swim due to my left shoulder injury and have not returned to diving as a result”.[38]
[38] PCB 23
136He obtained his scuba diving certification in around 2002 whilst living in Queensland. There was no evidence about how frequently he had gone scuba diving in Victoria prior to 2017 when he was diagnosed with cancer.
137In oral evidence Mr Wells said “I regularly undertook [scuba diving] before and I was working my way back towards it, but I ended up with cancer, a hip replacement and then a shoulder injury”.[39] This suggests that, rather than regularly diving in the years prior to 2017, he was “working his way back towards it”. The careful wording of the affidavit gives the impression that scuba diving was a regular activity prior to the shoulder injury which, on further interrogation, is not borne out.
[39] T 52
138He agreed that his cancer treatment had finished by 2018 and that his hip replacement had “nothing to do with” his capacity to scuba dive. He said during the years 2019, 2020 and 2021 until his shoulder injury “I probably dived once or twice to make sure I could do it, but I was trying to make a living”.[40] On his evidence I could not be satisfied that he had dived even once or twice in the years prior to 2021, his evidence was not that he had, but that he “probably” had. His lack of recollection suggests to me that it had been many years since he had dived. This suggests that he was not scuba diving much, if at all, in the years leading up to his shoulder injury.
[40] T 52
139He said he “wanted to get back into it” and that he loved it. He said he intended to go back to diving off Barwon Heads and had set his boat up for scuba diving as well as fishing.[41]
[41] T 70
140The timing of setting up his boat for scuba diving was very unclear. He said before he set up his boat for scuba diving he was diving in Victoria on charter dives. He said he wanted to return to the status quo of going diving on weekends so he set up his boat for dives as well as fishing. He took his boat back to Queensland but said he towed it up there for nothing because the motor was “buggered” and he had to replace the motor when he returned to Victoria.[42] It was not apparent from his evidence that he had ever gone scuba diving from his own boat in Victoria.
[42] T 69 - 70
141The fact that Mr Wells had scuba dived only rarely since 2017, and that there is no clear evidence as to the frequency of his scuba diving in Victoria prior to his cancer, means I do not accept that the shoulder injury is the reason he no longer scuba dives. His evidence that “I was trying to make a living” suggests that time constraints, as well as his cancer diagnosis played a significant role in his ability to engage in scuba diving.
142I accept that his shoulder injury is likely to make it less feasible for him to scuba dive now, should he wish to do so, but the irregularity of his scuba diving before the injury is a matter I consider when assessing the consequence of this loss to him.
Motorbike riding
143Mr Wells did not mention motorbike riding in his first affidavit. He said, on examination that this was because “it didn’t enter my mind” and because “I wasn’t riding” at that time.[43]
[43] T 54
144In his second affidavit of February 2025, Mr Wells said he had previously enjoyed riding his Harley-Davidson motorbike on a regular basis: daily whilst living in Queensland and recreationally after moving to Victoria, riding “every fortnight or so” at times. He said since his injury he finds it difficult and heavy to manoeuvre his motorcycle and has not resumed riding.
145Levi Wells said Mr Wells used to ride his Harley Davidson every few weeks in the summer months in Victoria. He usually rode by himself or with Levi. By my calculation this would amount to around six rides a year.
146Mr Wells agreed that his motorcycle riding was significantly reduced in Victoria.. He sold his bike in 2024.
147On his evidence and the evidence of Levi Wells, prior to his accident he rode primarily during the summer months every fortnight or so. Presumably there would have been periods of time during his cancer treatment and hip replacement when he did not ride. This means that he use of a motorcycle was, at least since 2017, limited to a handful of occasions each year.
148He agreed that he had sold his motorbike to help finance his purchase of the farm but said that this was not the only reason he sold his bike. He said he had wanted to keep the bike and the boat but “I couldn’t use them and I’ve got all that money sitting there. We needed to amalgamate and we did what we had to, to get what we wanted”.
149Although Mr Wells would like to have kept his bike and boat, he sold them because he needed finance for his farm. Whether, if he were using the bike and boat more, he could have found a different way to finance the farm is not the subject of any evidence. However, I am satisfied that Mr Wells was using his bike very little if at all after his shoulder injury and that prior to his shoulder injury, his motorbike riding had significantly diminished since returning to Victoria.
Fishing
150In his first affidavit Mr Wells said he loved fishing in the past but now finds it hard to launch his boat and control his fishing rod.
151In his second affidavit Mr Wells said he had not returned to fishing due to his left shoulder injury. He said that he struggled to launch and retrieve the boat and ending up selling it. He said he previously loved fishing and would fish each week or fortnight. He was a good fisherman; he liked to fish by himself as he enjoyed spending time on the water and found it relaxing.
152Levi Wells said his father used to go fishing regularly before his injury, at times he would go weekly when the weather was good. He said his father did not seem to go fishing anymore.
153In oral evidence Mr Wells said he had gone fishing a few times since his shoulder injury. He agreed he could go out in his boat if someone were with him but that he did not like to fish with other people. He continued to renew his fishing licence until he sold his boat. He said he continued to get fishing licences because he “tried” to fish, not because he could fish.[44]
[44] T 55
154He said he did not like to fish off the pier because he grew up boat fishing and there was a difference between boat and pier fishing in the amount and quality of the catch as well as the fact that “you don’t have to elbow someone out of the way to hold your spot”.[45]
[45] T 72
155I accept that Mr Wells no longer fishes as frequently as before his injury.
156I accept that his shoulder injury impacted the frequency with which he fished, and therefore, had he kept the boat, he would have been able to participate in fishing significantly less frequently than before his injury.
157I accept that the reduction in the frequency with which he can fish has diminished an aspect of enjoyment of life that was significant to him.
Other consequences
Social life
158Mr Wells says he socialises less often because it is hard to enjoy himself when he is in pain and is less tolerant of others.
159From the medical records there was a period in which Mr Wells suffered from an adjustment disorder with considerable anger, but this has apparently now resolved. In any event it is not being relied on. This likely impacted his social life.
160Having regard to my findings and Mr Wells’ evidence about his experience of pain, I am not persuaded that his physical injury has any impact on his social life.
Dressing
161While certain actions may provoke momentary pain or discomfort while dressing, I am not satisfied that he has any significant impairment in his ability to dress himself.
Household tasks
162Having regard to the tasks he can undertake in his work I am not persuaded there is any significant limitation on Mr Wells’ capacity to undertake household tasks.
Driving
163Mr Wells said he finds it painful to hold his arm outstretched for lengthy periods and he often rests his arm on the gearstick. Even if driving does provoke pain, he has reached an accommodation. There is no evidence that this accommodation has caused any diminution of his capacity to or enjoyment of driving.
164He said he found it painful to pull himself into his truck with his left arm and he relies on his right arm to do this.
165I note he was cross examined about the assistance he provided from time to time in his son’s tree-removal business. He said that assistance was driving a tractor and driving Levi’s truck, as well as sometimes dragging branches to a mulcher and sweeping up.[46]
[46] T 30 - 31
166If driving presented any significant difficult for Mr Wells, I do not think it is likely that he would take on additional driving in his son’s business. If getting into a truck was a significant difficulty it also seems unlikely he would take on additional truck driving work.
167Mr Moaveni recorded in November 2024 that Mr Wells’ driving is unaffected. I consider this is the likely situation.[47]
[47] PCB 67
Sleep
168Mr Wells says he finds it difficult to get comfortable at night and that he often wakes due to pain.
169Mr Brown has recorded a history of waking occasionally. Dr Prytula recorded that he “sometimes” wakes if he lies on his left shoulder. Mr Moaveni has a report of Mr Wells’ sleep that appears to be lifted directly from his affidavit.
170Mr Wells’ evidence gives me little indication of how frequently he wakes, what period is he wakeful for, and the impact this has on his life. Given his physically demanding occupation and his farm responsibilities, I infer it is not a significant impact.
Does Mr Wells have consequences that meet the test?
171Mr Wells’ counsel submitted that he was a stoic plaintiff and this is borne out by his reports to doctors describing little pain.
172Mr Wells relies on Mr Moaveni’s opinion that Mr Wells does not have capacity to perform his pre-injury duties as a domestic tiling assistant.
173His counsel submitted that prior to the injury, Mr Wells was a moderately active middle-aged man who now lives a somewhat sedentary, certainly circumscribed life. He has lost the ability to engage in a range of physically demanding recreational activities which were his chief hobbies of fishing, scuba diving and motorbike riding. He has lost the ability to engage in unrestricted manual work and chores. He suffers daily pain which should be analysed in the context of his stoicism. He has impairments in daily activities such as sleeping and dressing. Together, these matters produce consequences that are at least very significant.
174The defendant says this case is, at best, a borderline case where the reliability of the plaintiff’s evidence assumes a greater significance. The defendant points to the disparities between Mr Wells’ first and second affidavits and his evidence in Court. For example, in his first affidavit he suggested he was only driving trucks after his injury, in his second affidavit he identified additional “heavier” duties that he tried to avoid when he could, and in his oral evidence he said none of those activities were heavy or caused him difficulties with his shoulder. The defendant says this should cause me to consider Mr Wells’ evidence more generally is unreliable.
175The defendant says Mr Wells was not forthcoming about, for example, his work with his son in the tree-removal business, or the nature and extent of his bathroom renovation business. He implied that he was unable to perform many tasks and had to call in outside help, but accepted in cross examination that he did a lot of the work himself and only called in outside help when he needed expert tiling assistance.
176The defendant says this is not a case of a stoic plaintiff, but a case where the plaintiff is not facing unrelenting pain and there is no need for treatment or medication.
177The defendant says I should have regard to the likely difficulties Mr Wells would have climbing ladders, doing farmwork, scuba diving, and motorbike riding that would have been caused in any event because he had undergone a hip replacement.
Findings on consequences
178In Jarvie v Sideliner ContractingPty Ltd,[48] the Court of Appeal found that in circumstances where the defendant had chosen not to cross examine the plaintiff, and there was evidence to support a finding that he had constant pain, it was not open to the judge to find the plaintiff’s pain was not constant. The judge erred in finding that the plaintiff had demonstrated an ability to perform substantially the same employment duties after his injury, when the plaintiff’s unchallenged evidence was that he had difficulties performing those duties which had led him to leave that employment and commence working elsewhere.
[48] [2024] VSCA 144 (“Jarvie”)
179The Court of Appeal noted that the plaintiff’s partner provided unchallenged evidence that the plaintiff was a ‘very stoic individual’ and, considering all the evidence, this ‘more than explains any perceived modesty in the applicant’s level of treatment or medication’. The Court of Appeal held that the applicant’s stoicism, and the fact he continued working in conditions where others with the same injury might not, should not be held against him. “A stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.”[49]
[49]Ibid at [69]. See also Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [3]; Hayden Engineering (2010) 31 VR 1 at 5[13]; Transport Accident Commission v Kamel [2011] VSCA 110 at [67]; Philippiadis v Transport Accident Commission [2016] VSCA 1 at [28]
180This is not a case that can be usefully equated with Jarvie. Far from Mr Wells’ evidence about his pain being unchallenged, it was extensively challenged in cross examination, and he made significant concessions.
181I have already made findings that Mr Wells is not in constant, persistent pain, but rather that certain movements can provoke the pain in his shoulder and he has learned to adapt his work so as not to be in pain.
182This is also not a case where Mr Wells’ evidence that he had substantial difficulty performing his pre-injury tasks after his injury went unchallenged. The evidence in fact demonstrated that the tasks he was doing before and after his injury were similar albeit that he spent more time driving after his injury. His evidence was also that the work he was doing before his injury was not heavy work and that he performed much of his work without assistance after his injury.
183While Mr Wells may be a stoic person, the evidence does not satisfy me that any stoicism is relevant to the assessment of his consequences. This is because I am not satisfied that he is in constant daily pain which he endures in circumstances in which a less stoic individual would not. Nor am I satisfied that his work duties caused him significant pain requiring him to seek alternative employment, such that he should accurately be assessed as being precluded from his pre-injury duties.
184He sought alternative employment because he was not getting the amount or sort of work he wanted at Walkers. The fact that he runs a bathroom renovation business where he does much of the work himself without assistance supports a conclusion that he retains a capacity for his pre-injury duties.
185I turn to consider whether those consequences I am satisfied are caused by the shoulder injury meet the test of “at least very considerable”. This analysis requires me to consider the range of possible impairments, noting that the most serious impairments would rarely be the subject of dispute in the court, and the most minor impairments likewise would rarely trouble the court.[50]
[50] Sabo v George Weston Foods [2009] VSCA 242 at [66]
186An analysis of the consequences for an individual necessarily requires a value judgment in which matters of fact and degree and impression are operative.[51]
[51] Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181 at [41]
187In examining the consequences, I must consider how they have affected Mr Wells as he was, and as he would likely have been, absent the shoulder injury.[52] Aside from the fact there is a possibility that Mr Wells will be required to revise his hip replacement within his working life, I am not persuaded that the hip replacement caused, or will cause, any impairment on his capacity to perform his work, or undertake activities of daily living. There is no expert evidence to this effect and Mr Wells did not give this evidence.
[52] Bezzina v Phi [2012] VSCA 161
188There is no check list that can be marked off to determine whether the consequences for one person meet the test. Regard to matters such as medical treatment and medication may be relevant but are not conclusive given the wide variability of individual tolerance of pain, willingness to take medication, and experience of side effects. The fact that Mr Wells has had no treatment since 2023 and requires no medication does not preclude him from establishing a serious injury, if I were otherwise persuaded that his evidence about his daily constant pain was reliable. I must consider both what he has lost and what he has retained in assessing the consequences.
189The consequences I am satisfied have resulted from his injury are:
(a) A moderate restriction in movement of his shoulder;
(b) Pain that is provoked by heavy lifting and overhead work;
(c) An inability to perform some tasks such as framing houses and large meterage tiling using large tiles;
(d) An inability to fish as frequently as he did before;
(e) A reduction from using his motorbike a handful of times a year to not using it at all; and
(f) A greater difficulty scuba diving if he were to decide to return to this activity.
190When considering the impact of these consequences on Mr Wells, I reject the suggestion by Mr Wells’ counsel that Mr Wells is now a sedentary person. Mr Wells can work in a physically demanding profession renovating bathrooms. He can assist his son in his tree removal business on occasion. He can assist his nephew in installing air-conditioning units. He can assist other tradesmen in their work in exchange for those tradesmen assisting him. He can maintain a 25-acre farm with livestock. He is able, with the assistance of farm machinery, to undertaking fencing, wood splitting, excavating and tractor work. He can drive a truck. These activities would give him little opportunity to be sedentary.
191I accept that for a physically active person, the limitations and restrictions he now experiences are likely to cause frustration and would be significant for Mr Wells. I accept that his inability to fish from his own boat as he prefers and his inability to ride a motorbike are matters of significance for him.
192However having considered all the evidence I am not satisfied that the consequences, when compared with the range of possible impairments and having regard to what he has retained, are more than significant, to the extent of being at least very considerable.
193Accordingly, Mr Wells’ application is dismissed.
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