Al Allaq v VWA [2026] VCC 219

1. The plaintiff was born in Iran in 1994 and is now 31 years of age. He migrated to Australia in early 2011 at age 17, having completed high school up to year 11 in Iran. Later he completed two years of a Bachelor of Psychology and Philosophy degree at La Trobe University in Melbourne.
2. By 2013 the plaintiff was in paid employment, initially as a cleaner and then in the construction industry.
3. Because of unpleasant experiences whilst living in Iran, the plaintiff has a significant past psychological history, including suicidal ideation and treatment with a psychologist during 2016. In fact, it was that pre-existing psychological condition that caused him to discontinue studies at La Trobe University.
4. On about 1 June 2017, the plaintiff commenced employment with Eye Q Constructions Pty Ltd ("the employer") as a construction labourer.
5. For the financial year ended 30 June 2018 he had gross annual earnings of $70,729. For the financial year ended 30 June 2019 he had gross annual earnings of $69,779.[6]
6. The plaintiff described performing heavy work for the employer, including in approximately mid-2019 when carrying building supplies and tiles over a period of several weeks, which caused him to develop pain in his upper limbs/elbows. As noted earlier, for this proceeding, the defendant accepts that the plaintiff suffered compensable injuries to his upper limbs/elbows.
7. I pause to note that the plaintiff was under 26 years of age at the time of the claimed injuries, which is a relevant consideration in respect to the test for pecuniary loss serious injury.

1. In an affidavit affirmed on 17 December 2024,[7] the plaintiff gave evidence that after developing pain in his elbows, he attended his general practitioner on either 29 or 30 May 2019, before being referred for an x-ray and ultrasound of his elbows and then on to see an orthopaedic surgeon, Dr Minoo Patel. The report of a bilateral ultrasound of the elbows dated 5 June 2019[8] was described as unremarkable. That report was provided to Dr Ridhish Pitalia, the plaintiff's general practitioner.
2. Next, the orthopaedic surgeon, Dr Patel, arranged MRI examination of each of the plaintiff's elbows. The reports of those MRIs[9] described some radiological findings which are broadly consistent with medial epicondylitis, or in lay terms, bilateral tennis elbow. There is no direct evidence from Dr Patel.
3. For reasons that are unclear and perhaps unimportant, Dr Pitalia referred the plaintiff to another orthopaedic surgeon, Mr Harry Clitherow. On 6 December 2019, Mr Clitherow wrote back to Dr Pitalia and said the plaintiff "has got distal biceps tendinopathy"[10] and that the next step would be a PRP injection. About that proposed injection, Mr Clitherow said that he had good results with a lateral epicondylitis, which was the same condition the plaintiff had only in a different tendon.[11]
4. By the time the plaintiff had found his way to Mr Clitherow, he had also commenced labouring work with a company called Vlad Interior Designs. Apparently, he lasted in that job for a few months. Later he worked at the colourfully named Barking Dog Construction for a period.
5. Mr Clitherow provided a report to the WorkCover insurer on 4 March 2020, stating that physiotherapy and splinting had been unsuccessful and requesting permission for the PRP injections. He said the clinical indication was lateral epicondylitis of the elbow, which had failed initial non-operative management.[12]
6. The plaintiff returned to see Mr Clitherow on 22 May 2020 after the insurer had declined PRP injections, who recorded that the plaintiff had been working, causing ongoing pain and recommended further physiotherapy.[13]
7. Mr Clitherow then wrote to the Accident Compensation Conciliation Service on 10 June 2020,[14] repeating his diagnosis, relationship to employment and his recommendation of PRP injections.
8. Mr Clitherow reviewed the plaintiff on 2 September 2020,[15] recorded ongoing problems and said he thought it was "a good idea to get a pain specialist involved".[16]
9. On 1 October 2020, Dr Pitalia wrote to the Accident Compensation Conciliation Service, confirming the diagnosis, the relationship to work and need for treatment.[17]
10. In accordance with the recommendation from Mr Clitherow, the plaintiff was referred to Dr Nathan Johns, a rehabilitation medicine physician. He wrote to Mr Clitherow on 15 October 2020 describing the plaintiff's complaints in respect to his arms.[18] But he also said that the plaintiff was reporting pain extending to his lower back and shoulders and the plaintiff had "extremely severe stress, anxiety and depressive symptoms".[19] He said the plaintiff had "developed a chronic pain syndrome with bilateral bicipital tendinopathy".[20]
11. The plaintiff was reviewed by Dr Johns on 25 November 2020[21] and again on 28 January 2021.[22] As of 28 January 2021, Dr Johns stated that the plaintiff was doing well with minimal upper limb pain and that it then looked like he was going to make a full recovery.
12. The plaintiff was reviewed by Dr Johns on 11 March 2021 with exacerbation of pain after starting activities at the gym.[23] Then on 10 June 2021, Dr Johns noted the plaintiff continued to do well with no lower limb pain and had started to look for work in the building industry.[24] Next, at a review on 5 August 2021, Dr Johns noted the plaintiff had completed his diploma, which, as I shall get to, is a reference to further studies completed by the plaintiff for work in the construction/building industry.
13. Dr Johns then wrote to Dr Pitalia on 31 October 2023 stating that the chronic elbow pain had then mostly resolved except for when the plaintiff did heavy lifting. Dr Johns said the plaintiff's main complaint was then pain in the spine from his neck to his lumbar area that was "most likely muscular in origin in the setting of hypersensitivity".[25]
14. Dr Johns reviewed the plaintiff on 12 December 2023 and again on 27 February 2024.[26] Those attendances appear mostly to have been about back pain and mood. That seems to be the last time the plaintiff attended Dr Johns.
15. Overlapping with the treatment set out so far, the plaintiff was attending Ms Chloe Cox, physiotherapist. In a report dated 23 January 2021,[27] Ms Cox described how she had been treating the plaintiff for his bilateral tendinopathy. She recorded the history of symptoms and restrictions. She said the plan had been to continue pain education with the input of Dr Jones [sic][28] while progressing physical rehabilitation. She said the plaintiff "has a very physical job and has had his injury complicated with now having a chronic pain type presentation".[29] She then made some comments about the plaintiff's capacity to return to limited work.
16. Regarding work, the plaintiff completed a Diploma of Building and Construction on 13 September 2021 and his diploma was issued 8 October 2021.[30] That was not the end of the plaintiff's studies and on 25 October 2022 he completed a Certificate IV in Building and Construction (Site Management) with a statement of attainment issued 25 October 2022.[31]
17. Notwithstanding that he went on to complete tertiary qualification for building and construction (site management) the plaintiff has not returned to work in the construction industry. In July 2022,[32] he obtained employment with The Busy Group Ltd as a full-time employment consultant for an annual salary of $65,208 gross per annum.
18. On 22 May 2023, Dr Pitalia reported to the plaintiff's solicitors confirming the diagnosis in respect to the elbows. Dr Pitalia said it was now chronic pain along with an escalation of mental health issues. He said given the plaintiff's current clinical state he was unable to perform his occupation as a building and construction labourer or similar jobs involving heavy lifting.[33]
19. In addition, Dr Pitalia noted that the plaintiff "gets pain in his upper back and shoulders at times".[34] He said the plaintiff's condition was not stable and it was difficult to estimate when it would stabilise where the plaintiff was dealing with chronic pain and underlying mental health issues simultaneously.
20. The plaintiff had been referred by Dr Pitalia for psychological treatment with Mr Trevor Givoni from February 2022.[35] The evidence from Mr Givoni included the plaintiff reporting severe and chronic pain in his arms, hands, and back. He diagnosed the plaintiff as having a major depressive disorder and a post-traumatic stress disorder.[36]
21. On 20 July 2023 Dr Yuen Leow, rheumatologist and specialist pain medicine physician, reported to Dr Pitalia, having seen the plaintiff for pain management. Dr Leow obtained a history of the elbow injuries with the employer and that over time "the pain had progressed to involve the shoulder girdle and in a widespread manner".[37] The overall recommendation was for ongoing pain management.
22. Another specialist that the plaintiff attended for treatment was Dr Stephen Nutter at Metro Pain Group. Dr Nutter wrote to Dr Pitalia on 22 March 2023,[38] noting the plaintiff was working full-time as an employment consultant and had a second job working in retail. He said that clearly the plaintiff was functioning at quite a high level but did complain of pain in multiple sites including his back, legs, and hips. He said he thought the plaintiff was likely to be suffering from a degree of central sensitisation and recommended multidisciplinary treatment.[39]
23. Pausing again, the plaintiff does not rely on central sensitisation or any similar neurological condition as part of his claimed serious injuries.
24. What I have set out to this point is from the evidence that I consider to either not be in dispute or to be accurately extracted from the evidence from the treating health practitioners.
25. If the clock was stopped as at mid-2024, then the conclusion could be drawn that the plaintiff had bilateral upper limb injuries from his work with the employer, with a subsequent change of career, as well as a range of specialist referrals, including for developing and widespread symptoms including symptoms in his back, hips and legs, perhaps with a degree of central sensitisation.
26. As the defendant emphasised in closing submissions, stopping the clock does not change the analysis of the evidence from the treating practitioners, because there is no such evidence for about the last eighteen months. That is because the plaintiff has not really had any treatment since then for his elbow injuries.
27. In any event, tying off some non-controversial issues, in August 2024 the plaintiff commenced employment with Wise Employment for a salary of approximately $71,000 gross per annum. That employment came to an end on 1 October 2025. Somewhat ironically, in November 2025 the plaintiff obtained a job as a work retention consultant with an organisation called MCM, for a salary of approximately $76,000 gross per annum plus superannuation. The plaintiff continues to work full-time for that employer.

1. Interrupting the narrative, for context, it is convenient to set out the relevant legal principles which are mostly not in dispute.
2. It is the plaintiff who has the overall onus to establish the ongoing physical impairment and impairment consequences from either the claimed injury to his right upper limb, or the claimed injury to his left upper limb, bearing in mind that those injuries cannot be combined for an assessment of "serious injury". Equally, he has the onus in respect to the claimed psychological/psychiatric condition.
3. There is no need to discuss the test for pain and suffering "serious injury" in detail, as it is well known. Broadly, the plaintiff must establish "very considerable" pain and suffering consequences from one, or the other, of the claimed injuries.
4. Dealing with the test for pecuniary loss serious injury, first the plaintiff must establish a "very considerable" loss of earning consequence.
5. Second, because the plaintiff was a worker under the age of 26 at the date of injury, to succeed for pecuniary loss he must then 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.
6. 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.[40] 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.
7. However, as was confirmed by the Court of Appeal in Margriplis-Hampton v Spendwatt Pty Ltd,[41] the assessment is one that for a young person may often have to be made based on imperfect evidence and may require broad assessments.
8. Overall, the enquiry is directed to the plaintiff's residual earning capacity, and the earning capacity that he would have had but for being injured.

1. Returning to the narrative and continuing with the evidence, to provide context for what follows, I have already set out the relevant evidence from treating practitioners.
2. The balance of the relevant evidence is mostly contained in the plaintiff's affidavits, his oral evidence and medico-legal reports.

1. In his affidavit sworn 17 December 2024 the plaintiff described the treatment after suffering injury. He said he then continued to see his physiotherapist on a weekly to fortnightly basis, a psychologist on an almost monthly basis and Dr Jones[42] about "every quarter".[43] He said he took the occasional painkiller when his pain flared up.[44]
2. The plaintiff then set out his work history since he obtained employment with Busy At Work as an employment consultant. He said that if he had not been injured, he would have pursued a career in building and construction and noted the further qualification that he had gone on to achieve. He said overall he would be earning significantly more income than what he was currently earning had he remained in the building and construction industry. He said because of his injuries that career was now lost to him.[45]
3. The plaintiff then described the pain in his elbows at about 3/10 but on a bad day the pain went to about 8/10. He said about two days a week on average he tried to accommodate for his pain through painkillers or rest. He said he had learnt how to manage his elbow pain by doing as little activity or placing as less stress as possible. He then described a range of restrictions or impairments for day-to-day activity including boxing, badminton and swimming. He described difficulty with household maintenance, cleaning, gardening and driving a car. He said he had been stressed, anxious and depressed by reason of his injury.
4. The plaintiff swore a second affidavit on 29 January 2026.[46] In that affidavit he corrected or added some small matters arising out of his first affidavit, including that he had had some part-time work as a retail assistant at a menswear store in Parkmore from about mid-2023 until mid-2025.[47]
5. The plaintiff then provided an update about treatment. He said he continued to see his GP as needed and his psychologist on a fortnightly or monthly basis. He said he did not take regular medication for his arms, but when experiencing excruciating pain took anti-inflammatories. He said if he did too much activity his elbows flared up and he had to take the medication. He described how he had ceased physiotherapy in mid to late 2024 and had tried to keep up his physical state by attending a gym. He said he had not been back to Dr Johns and was following advice from Dr Johns to be vigilant with what he did to manage his pain.[48]
6. The plaintiff then gave evidence about his work since swearing his previous affidavit and how he was then employed as a work retention consultant with MCM. His role involves helping young people with disabilities. He works thirty-eight hours per week for a salary of $76,000 gross per annum.
7. About work, the plaintiff said if he had not been injured and remained in the building industry he believed he could have become a building supervisor or at least been in management. He said:

"As a result of my injury, I do not feel that I could return to work in any capacity within the building trade because it requires the full, free, and unrestricted use of both upper limbs ... ."[49]

8. In that affidavit, the plaintiff then gave evidence about several jobs and rates of pay. He also repeated much of his earlier affidavit evidence about ongoing consequences.

1. In cross-examination, the plaintiff confirmed he had completed a further qualification in building and construction (site management). He agreed he could go on to do further study and obtain a Certificate IV in Building and Construction but had not done so.[50]
2. The plaintiff was then cross-examined about reproduced text messages between him and the employer, including one in November 2021 where he mentioned that his "back and arms are done".[51]
3. In the context of more widespread pain, the plaintiff was then cross-examined about the evidence from Mr Givoni and he accepted that what was recorded by Mr Givoni was what he had reported as at June 2023, namely chronic pain in the arms, hands and back.[52]
4. Later in cross-examination, the plaintiff disputed he told Mr Givoni he had severe back pain all the time. He said the elbow pain and the back pain were very much activity dependent.[53]
5. The plaintiff was then cross-examined about a medico-legal opinion provided by Dr Rahgozar in May 2022, who recorded that at rest the plaintiff did not have pain in his elbows but at rest had back pain which was 5-6/10, bilateral shoulders and more recently pain in the hips. The plaintiff said he recalled giving that history.[54]
6. Similarly, the plaintiff was cross-examined about an attendance on a medico-legal witness Dr Khan in 2022, who recorded that the plaintiff described mild bilateral hip pain and mild back pain. The plaintiff broadly accepted that history.[55]
7. The plaintiff was then cross-examined about taking magnesium tablets and Nurofen for back pain. He said he would take those tablets for any pain that he would feel, including back pain.[56]
8. The plaintiff was then asked about various tolerances for activities such as sitting, standing, walking, driving and the like. It was put to him that those restrictions were more associated with his back. The plaintiff said:

"It is more to do with the chronic pain developed as everything has become more sensitive. As far as Dr Nathan Jones explained to me, in that my brain has become too sensitive to pain. So just as it is - something is happening, the alarm bells goes off. So I - I - I cannot um clarify it is - is exactly back, or - because after the chronic pain, it's almost everything merged together. Um I would get hip pain or knee pain for no apparent reason, and - and then my - my practitioners would tell me this is the hypersensitivity or chronic pain. I don't know what they diagnosed it as, but - yes."[57]

1. Again it was suggested to the plaintiff that any restriction that caused him to change posture was related to his back, knees and hips, to which he said "Yes".[58]
2. The plaintiff also accepted that his standing tolerances related to his back unless he was holding something because he would then get pain in his arms. About driving, the plaintiff maintained that it was how he had to position his hands on the steering wheel that caused pain, but that if he could alternate the position of his arms he could drive for more than 100 minutes.[59]
3. About some limitations the plaintiff said it was more to do with his chronic pain and repeated his evidence about his brain being oversensitive to pain.[60]
4. About some restrictions such as squatting, the plaintiff accepted that was because of his back, hips or knees and nothing to do with his elbows.[61]
5. The plaintiff then explained that with his new job he had a backpack and he has had pain in his shoulders that had reached his neck as well.[62]
6. The cross-examination continued in a similar manner, with a number of questions about restrictions caused by pain in body parts other than the plaintiff's elbows. That culminated by the suggestion to the plaintiff that restrictions associated with his back would have meant that he could not continue working in building and construction regardless of the elbows. The plaintiff said:

Q: "Now, the problems with your back and your hips and your knees, I take it affect your ability to do housework?‑‑‑ > > A: Um just if I could clarify one thing. The back pain has been an issue since working construction and scoliosis. However, the hip and knees were ah almost a one-time thing, or maybe it's happened two - two times where I would get the spike in pain, but they - they are not a constant pain as much as the elbow and back. > > Q: And ‑ ‑ ‑?‑‑‑ > > A: Just clarifying that. > > Q: - - - I suggest your back condition affects your ability to engage in shopping?‑‑‑ > > A: Not as much, no. No. > > Q: And I suggest your back condition - your back and your hips and your knees - affect your ability to work, generally?‑‑‑ > > A: No, I don't agree with that. > > Q: Well, you've told us - we've gone through the histories that Mr Khan took, or Dr Khan took, about you having restrictions on you sitting, standing, walking, driving, reaching, bending, leaning. I suggest those restrictions associated with your back would mean that you could not continue working in building and construction anyway?‑‑‑ > > A: I - no, I don't agree with that. As back pain, muscle pain, hip pain is - is literally part of a daily life in construction, that's fine. The back pain, within gym, I'm increasing the strength, however the elbows is a completely different type of pain that I cannot strengthen it with gym. I cannot fix it the same way a muscle or a bone gets fixed. A tendon, a ligaments, take years to heal and seven years gone I am in exact same position as it was where, within five, 10 minutes of any activity, I feel the worst pain in my elbows. Back pain, no, back pain is - is something, I think, a lot of people can live with. It's not a chronic or debilitating pain, whereas the elbow and the limitation from my elbow pain is far more extreme on my ability to work. > > Q: It's pain that you're treating psychologist has described as 'severe back pain' as recently as October of last year?‑‑‑ > > A: Yes. > > Q: And you'd agree with that characterisation, wouldn't you, that it's severe back pain?‑‑‑ > > A: The severe back pain, again, I'm not sure if - if that's his assessment from where I presented to him. I get really bad back pain but it does not impede my ability to go to work, to lift anything or do whatever I need to do, whereas - because that is more on a muscle pain and, like, it's just the muscles feel a little bit tense. So a little bit of physio or stretching really helps with that, whereas I can't really do much regarding the elbows. > > Q: Those restrictions that we've gone through, in terms of your back, would prevent you from working as a site supervisor, wouldn't they?‑‑‑ > > A: No. Absolutely not. > > Q: So I suggest to you that your back condition is what prevents you from, or what has prevented you from going on to work as a building site supervisor?‑‑‑ > > A: That is not correct. I - if - if I were to - I have had the back pain maybe a year, two years before my injury, and it never caused me to miss a second of work. And - and whatever way I would be able to remedy that, and I would, and I'm back to it. Whereas the elbow pain has been a fully - like a - just a - something I have not been able to deal with at all."[63]

7. The plaintiff was then cross-examined about various jobs. There was no suggestion in his evidence that he did not have the intellectual capacity for sedentary employment. The thrust of his evidence was physical restrictions limited his ability to work. Overall it was suggested that the plaintiff's back pain was a severe issue. The plaintiff disputed that and said it was not a significant issue. He said the severe pain is there but it comes and goes and was not something that stopped him from doing what he needed to do with his day.[64]
8. About work as a building supervisor the plaintiff said he did not believe he was now able to do those duties.
9. The plaintiff was then asked why he had not mentioned pain in his back, hips or knees in his affidavits. The thrust of his response to that was that he had not really considered that was part of the issue.
10. Next, the plaintiff agreed that if he could secure a position as a project manager then he could do now perform that work.[65]
11. The plaintiff was then taken briefly to some clinical records that confirmed he had not attended at Dr Pitalia's clinic since 31 July 2024. The plaintiff said that sounded about correct.[66] However he explained that he had transferred to a different clinic in Dandenong when he commenced with Busy At Work. In any event, the plaintiff accepted that the last time he saw Dr Pitalia was for a work-related stress condition associated with employment at that time.[67] He then qualified that and said he had seen Dr Pitalia late last year for a full-body checkup.[68] About the GP in Dandenong, the plaintiff explained that was to obtain antidepressants and because he wanted to quit smoking.[69]
12. The plaintiff agreed in cross-examination that he did not have constant elbow pain.[70] He described it as a dormant injury but said that the slightest anything could set off the pain. He disagreed that he had constant back pain.[71]
13. The plaintiff was then cross-examined about the part-time work he had done at a menswear store and agreed that was in addition to other full-time employment that he held down at the time.[72]
14. In re-examination, the plaintiff confirmed that he had used his own knowledge to source salaries for various jobs as set out in his affidavits.

1. Mr Ash Moaveni who is an orthopaedic surgeon who examined the plaintiff at the request of his solicitors had provided a report dated 18 September 2025.[73]
2. Mr Moaveni's report is squarely directed to the plaintiff's claimed arm/elbow injuries. In the report he noted the plaintiff is not receiving any allied health treatment and continued with self-managed exercises and was not currently taking any medication for pain management.[74]
3. Mr Moaveni diagnosed what he described as "significant soft tissue musculoskeletal injuries to both elbows during the course of his employment with Eye Q Constructions".[75] He said the clinical findings were consistent with lateral epicondylitis (tennis elbow).[76]
4. Mr Moaveni then recorded the plaintiff experiencing intermittent pain on the lateral aspects of both elbows, exacerbated with the use of his arms. He recorded described impact on daily activities.[77] He said the plaintiff was likely to be restricted in relation to social, domestic and recreational activities, and described such incapacity as mild to moderate.[78] Overall he said the prognosis was guarded.
5. Mr Moaveni was then asked questions about work capacity. He said the plaintiff did not have capacity to return to full-time unrestricted work in his pre-injury position of employment as a builder's labourer, builder, or building site supervisor. He said the plaintiff was restricted for employment that involved manual handling tasks.[79] Later in the report he repeated his opinion that repetitive, physically demanding work would be beyond the plaintiff's capacity.
6. About Mr Moaveni's evidence as the defendant highlighted, he did not obtain any relevant history about more widespread pain, including back pain and so obviously he made no comment about any restrictions or impairment caused by unrelated conditions.

1. Dr James Chan is an occupational physician who examined the plaintiff at the request of his solicitors and provided a report dated 18 November 2025.[80]
2. Relevantly, Dr Chan had a history that the plaintiff's right elbow pain was around 2/10 on average and would go up if trying to do repetitive or sustained activities using his arms, forceful gripping, or heavier lifting. When really bad, it could go up to 7/10. He said the left elbow was the same, with a base of about 1-2/10, with the same triggers.
3. Dr Chan recorded the plaintiff stating he could sit with no issues, but could walk about 1 to 2 kilometres before he experienced discomfort in his elbows and lower back "which he was told by his pain specialist was related to his chronic pain condition".[81]
4. Dr Chan said the plaintiff had bilateral distal biceps tendinopathy and chronic right lateral epicondylitis. He said the plaintiff had development of a secondary, now mild, chronic pain syndrome affecting the right and left elbows, and reported development of secondary psychological symptoms.[82]
5. Dr Chan described the prognosis as guarded. He noted the plaintiff had been able to obtain and maintain full-time alternative employment, with only minimal irritation of his condition most of the time. However, some activities flared up his pain.[83]
6. Dr Chan said if the plaintiff could avoid activities which caused a flare-up of his condition, then he was likely to remain the same. He said the plaintiff could not perform full-time unrestricted employment as a builder's labourer, builder, or building site supervisor. That was particularly relating to hands-on requirements and use of tools.[84]

Dr Saleem Khan, consultant in rehabilitation and pain medicine

1. Dr Saleem Khan is a consultant in rehabilitation and pain medicine who provided reports to the WorkCover insurer. In his first report, of 14 June 2022,[85] he took a history of injury, conducted an examination and the like. He summarised the plaintiff's situation as diagnosed bilateral tennis elbow.[86] He opined that the plaintiff had a capacity for suitable alternative employment, and endorsed jobs such as graduate/junior project manager in construction, sales representative in building, and junior estimator.
2. Dr Khan reported again on 25 February 2025.[87] He reported various conditions including neck and back pain. He noted the plaintiff was then employed as an employment consultant, which he enjoyed, and that the plaintiff was managing his pain much better and exercising regularly in the gym.[88] He again noted bilateral tennis elbow and said the plaintiff's pain symptoms had settled down now that he had a light office role. He said the plaintiff did not have a capacity for pre-injury employment as a builder's labourer but had a capacity for suitable employment.[89]
3. Dr Khan reported again on 10 November 2025.[90] On that occasion he described the plaintiff having persistent pain involving his elbows and low back.[91] He otherwise expressed similar opinions about the plaintiff's capacity for work, including that he could be a graduate/junior project manager, sales representative (building and construction), retail assistant, junior estimator, or booking clerk.[92]

1. Flexi Personnel provided an earnings report to the plaintiff's solicitors dated 4 April 2023.[93] That report simply extracted rates of pay for various building jobs by reference to websites. Flexi Personnel noted that the salary range of a building site supervisor in 2022/23 was up to $140,000 gross per annum.[94]
2. Flexi Personnel reported again on 24 January 2025 and said that a building site supervisor could earn up to $140,000 gross per annum, but typically $125,000 gross per annum.[95]
3. Flexi Personnel reported for a third time on 16 September 2025[96] and provided a summary of various skills and competencies required for work as a building site supervisor or self-employed builder.
4. Flexi Personnel then reported again on 22 January 2026.[97] On that occasion the report observed that a building site supervisor (manager) was able to earn between $130,000-$190,000, with a typical figure of $155,000 gross per annum.
5. I pause to muse whether there is much relevant expert evidence in the Flexi Personnel reports, but nevertheless I note the extracted evidence about rates of pay for a building site supervisor. I think I can take judicial notice that a building site supervisor is likely to earn more than a construction labourer, which was the role that the plaintiff had when he was injured.

1. Dr Majid Rahgozar is a consultant occupational physician who examined the plaintiff and first reported on 2 May 2022.[98] He obtained a history that the plaintiff did not have pain in his elbows at rest, but at rest had some pain in his back that he rated 5 or 6/10, which was aggravated upon prolonged sitting, or using his arm at or above shoulder level. The plaintiff apparently also reported occasional pain in bilateral shoulders and pain in his hips.[99]
2. Dr Rahgozar went on to opine that the plaintiff presented with a rather complex clinical picture. He said clinically there was minor tendinopathy of the right elbow tendon, and the left elbow tendon could not be ruled out. He also noted the plaintiff had widespread pain affecting his back, neck, shoulders and hips which he did not consider to have an organic basis.[100]
3. Dr Rahgozar said because of the minor tendinopathy of the right elbow, one could argue that the plaintiff should not return to physically demanding work that required forceful grabbing, grasping, lifting, pulling, pushing and carrying.[101]
4. Dr Rahgozar then said the plaintiff had the physical capacity for graduate/junior project manager in construction, sales representative in building and construction, retail assistant, junior estimator and booking clerk.[102]

1. The defendant tendered a 130-week vocational assessment report from Work Able Consulting dated 24 February 2022.[103] I have considered the content of that report. It identified so-called suitable employment options, including the jobs on which the medico-legal witnesses had commented.
2. The defendant also tendered a labour market analysis report from Work Able Consulting dated 19 December 2025.[104] That again considered various jobs said to be suitable for the plaintiff, together with rates of pay.

1. The defendant raised as an issue the credit of the plaintiff.
2. As has been said many times, in "serious injury" applications, particularly when assessing subjective impairment complaints, the credibility or reliability of the plaintiff is often of critical importance.
3. In the witness box the plaintiff presented as an articulate and pleasant man who gave evidence in a relatively straightforward manner, including making concessions as appropriate.
4. The notable thing about the plaintiff's oral evidence was how he willingly acknowledged more widespread pain problems, including in his back and hips. If I accept his explanation that the more widespread pain problems were not mentioned in his affidavits because he understood he was being asked for evidence in respect to his elbows, that still does not absolve him from responsibility for the fact that important, relevant evidence was left out of his affidavits. Therefore, I accept the defendant's submission that there is a degree of unreliability about the plaintiff's evidence. I consider that in those circumstances the objective evidence is important, and his subjective complaints should not be accepted unless there is objective support for those complaints.
5. This is particularly important when it comes to the claimed pain and suffering consequences, where there is not a great deal of objective support for the plaintiff's evidence.

1. For reasons that shall become clear, it is perhaps superfluous to say much about the claim for pain and suffering "serious injury". But because much of the submissions focussed on that topic, I shall deal with it in a little detail.
2. First, as already discussed, the plaintiff cannot combine the right and left arm injuries for the purpose of an assessment of "serious injury".
3. Second, there is merit in the contentions of the defendant that the plaintiff has not sufficiently discharged his evidentiary onus to ascribe impairment consequences to one, or the other, of the claimed upper limb injuries.
4. About that, the defendant submitted that Peak Engineering Pty Ltd & Anor. v McKenzie ("Peak")[105] stood for the proposition that the plaintiff had the evidentiary onus to establish which pain and suffering consequences related to which of the claimed serious injuries. In doing so, the defendant submitted that the plaintiff had the onus to 'disentangle' the consequences from the claimed injury, from consequences caused by the other claimed injury, or unrelated conditions, such as the back or hips.
5. In support of its submissions about the evidentiary onus, the defendant highlighted the evidence that it relied on.
6. On the other hand, the plaintiff submitted that each injury, in isolation, was "serious". He submitted that the sequence of injury was right elbow, followed by left elbow. He submitted with a focus on work, that any restriction for carrying and lifting from the right elbow would equally apply for the left elbow.[106]
7. Much of the plaintiff's submissions were directed to the medical evidence about causation, diagnosis and incapacity for work. The plaintiff said that on a very simplistic view, he had now been deprived of an area of work that is a "significant and serious consequence", that he had a loss of career and had limitations with what he can do with each of his right and left arms and had pain "unless he is careful".[107]
8. Regarding whether some of his social activities were curtailed because of problems with his back, he submitted that "there is no evidence" that the back curtailed those activities. But perhaps it would be trite to comment that there is a deficiency in the evidence about problems with his back in part because that evidence was not in the plaintiff's affidavits.
9. In short, the plaintiff submitted that in isolation as far as pain and suffering was concerned, each of those injuries would satisfy the "serious injury" test.[108]

1. About pain and suffering "serious injury", I prefer the submissions of the defendant.
2. First, in the context of my previously expressed conclusions about the credit of the plaintiff, his failure to provide evidence in his affidavits about unrelated conditions, including the problems with his back, is a relevant consideration for an assessment of the reliability of his subjective complaints of pain and suffering alleged to be linked to one or the other of the arm injuries.
3. Second, the objective evidence suggests his back and hip conditions have restricted and continue to restrict the plaintiff for a range of day-to-day activity.
4. Third, there is a confusion or lack of clarity in the plaintiff's evidence as to what impairment consequences relate to which of the upper limb injuries, in the sense described in Peak. It is no answer to say each in isolation produces an impairment consequence for daily activity. The plaintiff needed to better identify the pain, restriction for domestic, social and recreational activity that was caused by each claimed injury. On my assessment of Peak, that cannot be done by ignoring the consequences from one arm, for an assessment of the other, despite the artificiality or evidentiary difficulty that might arise.
5. Fourth, regardless of any 'disentangling', the evidence is that the plaintiff has periods of no pain in his arms, has no treatment and takes little or no medication solely for one or the other of his arm injuries. He has been able to return to study, work full time and engage in a range of daily activity such as driving or going to the gym.
6. Fifth, at the highest, the plaintiff may have some activity-based pain, but again not at an objective level where he needs to do much to manage the pain, perhaps other than at times to rest or limit physical activity.
7. Sixth, overall, bearing in mind I must consider the range of impairments and impairment consequences and not just those that come before the Courts, the plaintiff's right tennis elbow in isolation, or his left tennis elbow in isolation, may produce some consequences that could be described as marked or even significant, but not at a level of "very considerable".

1. Turning to the submissions about pecuniary loss.
2. First, there is no suggestion that the plaintiff does not have the intellectual capacity for a range of suitable employments "after injury". Objectively, "after injury" he has had the intellectual capacity to complete tertiary qualification for work in the construction industry and more recently in the vocational industry.
3. Therefore, the argument about pecuniary loss substantially turns on an assessment of the plaintiff's physical capacity after injury.
4. The defendant commenced submissions about pecuniary loss by referring to the evidence from Flexi Personnel about the rates of pay if the plaintiff was now a building site supervisor, with the average for that being $155,000 gross per annum.[109]
5. The defendant highlighted that 60 per cent of that figure is $93,000 gross per annum, or $1,788 gross per week.
6. Therefore, the defendant submitted that "the threshold", if the court accepted that the plaintiff would have gone on to be a building site supervisor, was $93,000 gross per annum.
7. Next, the defendant submitted that where the plaintiff had gone on to complete qualifications in building and construction, objectively he had a retained capacity for that work.
8. Alternatively, the defendant contended that if the plaintiff was now not physically capable of construction work, it was because of the unrelated conditions affecting the back, the hips or the knees.[110]
9. In any event, returning to the figure of $1,788 gross per week, said by the defendant to be the threshold, it next submitted that the Court should look at what the plaintiff was now earning - which was $1,461 gross per week.[111] It then said that the earnings from the second job that the plaintiff previously held in retail should be added to assess his "after injury" level of earning capacity.
10. The defendant referred to the evidence that in the retail job, the plaintiff had earnings of $12,691 gross per annum, or an average of $244.05 gross per week over 52 weeks. Therefore, the defendant added the current earnings of $1,461 gross with $244.04 gross per week, to arrive at a total "after injury" earning capacity of $1,650 gross per week. This was said by the defendant to be "perilously close to ... the $1,788 figure".[112]
11. The defendant then referred to some of the evidence in the vocational material about what it said were suitable jobs "after injury" and where those jobs all paid more than its threshold figure of $1,788 gross per week. It referred to the junior project manager salary of $1,838 gross per week; a junior estimator/project manager at $2,033 gross per week; and the role of employment consultant at $1,870 gross per week. Therefore, the defendant submitted that the plaintiff "fails to meet that threshold".[113]
12. In response, the plaintiff broadly contended that he had met the pecuniary loss threshold. Although, about that, much of his submissions were broad and did not directly engage with how the defendant had put its case. The plaintiff focussed a lot on the 'disentangling issue' but also submitted that each arm/elbow injury in isolation produced a "very considerable" pecuniary disadvantage where he should be assessed as unfit "after injury" for construction work.

1. In respect to the relevant pecuniary loss "serious injury" principles, I will deal with the right elbow and left elbow separately, but some of the discussion about general principles overlaps and I will set that out in the section devoted to the right arm/elbow.
2. But broadly, despite my conclusions about pain and suffering consequences, I accept that the plaintiff has a separate injury to his right elbow and to his left elbow which each, in isolation, and in particular in the right elbow, would make it impossible for the plaintiff to return to his pre-injury employment as a construction labourer.

1. About the right elbow, I consider that in accordance with the principles established in Acir v Frosster Pty Ltd,[114] regarding supervening events, I can disregard the subsequent (supervening) left elbow condition for the purposes of a gateway provision. Most of what follows should be seen then in the context of a primary discussion about the incapacity from the right arm, although I shall later discuss the subsequent injury to the left arm as necessary.
2. It is notable that the plaintiff is right hand dominant. Despite some reservations about the reliability of the plaintiff's evidence, the medical evidence supports a conclusion that he has a right upper limb/elbow injury, that restricts him for work involving lifting, pushing, pulling or carrying heavy items. I consider that precludes him from work as a construction labourer, or similar physical construction work. The loss of the ability to perform full and unrestricted construction work, for a young person with ambition to continue in construction work is, in my assessment, a "very considerable" consequence.
3. Therefore, in regard to the right elbow, the first step for pecuniary loss "serious injury" is satisfied because a "very considerable" pecuniary disadvantage is made out.
4. Next, contrary to the submissions of the defendant which conflate earning capacity with actual earnings, I do not accept the assessment of the plaintiff's claim for pecuniary loss is to be undertaken as the defendant suggested.
5. The plaintiff having demonstrated a "very considerable" pecuniary disadvantage from the right elbow must then move to the second stage of the pecuniary loss test and establish that he has a loss of earning capacity (assessed in accordance with common law principles) that will be productive of an actual financial loss of 40 percent or more.
6. For this stage, contrary to the submissions of the defendant, the plaintiff is not shackled to a strict consideration of his actual earnings before and after injury.
7. Perhaps the next consideration at this point is whether "after injury" the plaintiff has the capacity to work in building and construction as a site supervisor. About that, I consider that at the least some site supervisor roles would require an amount of manual handling, consistent with what is set out in the Flexi Personnel report.[115] So at a minimum the plaintiff would now be restricted for some building site supervisor roles, if not totally precluded, because of his right elbow injury.
8. In other words, I accept that the plaintiff has a loss of earning capacity because at least some type of building and construction work, including some supervisory work, is now physically beyond him because of the right arm injury.
9. Based on the taxation summary, at the time the plaintiff injured his right arm he was earning approximately $70,000 gross per annum as a construction labourer. He was then only 24 years of age. At the risk of repetition, he has gone on to obtain further qualification for potentially higher paid work in the construction industry. It is hardly a secret that as Government's have embarked on major infrastructure projects, such as the so called 'Big Build', that wages in the construction sector have become a hot topic of discussion, because of the level of earnings that are achievable for even the lower skilled jobs.
10. In other words, the plaintiff at a relatively young age and before he had better qualifications, was already earning reasonable money when injured with no restriction to pursue a career in the construction and building industry. There is no reason to believe that he would not have achieved further qualifications, as he has done, or promotion to better paid construction work. On my assessment of the medical evidence, his right arm injury now restricts or limits the sort of work he could do within the construction industry to sedentary roles that do not require the physical use of the arm.
11. To his credit, the plaintiff has retrained and is now earning a similar salary to what he was earning when he injured his arm/s in 2019, but that is not the test for pecuniary loss "serious injury". The fact remains that he has had to go down a path of sedentary work as a vocational consultant and has a loss of earning capacity.
12. On this point, for an assessment of loss of earning capacity, I am mindful that I am conducting an assessment for a gateway provision, as opposed to an actual assessment of pecuniary loss damages, where different evidence and different considerations apply.
13. In my opinion, the loss of the full and unrestricted ability to work in construction because of the right elbow in isolation, for a young person is such that when assessed in accordance with common law principles, the plaintiff has a loss of earning capacity that will be productive of an actual loss of 40 per cent or more. That is because of the narrowing of options available to him, the inability to pursue higher paid physical jobs, the prospect that his physical restrictions will likely limit him to lower paid positions and the fact that as set out by Flexi personnel, there is a salary range for building site supervisors of up to $190,000 gross per annum.
14. I note in passing that in a 130 Week Vocational Assessment report dated 24 February 2022 and prepared by Work Able Consulting, there was evidence that a Junior Project Manager (Building and Construction) could earn $3,450 gross per week[116] ($179,400 gross per annum), but that the role involved some "occasional" lifting, carrying or pulling.[117] Curiously, in a Labour Market Analysis report dated 19 December 2025, Work Able Consulting provided evidence that a Junior Project Manager attracted a median earnings of $2,033 gross per week ($105,716). Perhaps the difference in that evidence is explained by the use of different internet resources to research salary guides?
15. To be clear, I do not accept the evidence in the Work Able Consulting reports that work as a Project Manager or Site Supervisor is physically within the capacity of the plaintiff after injuring his right, if for no other reason that I consider such evidence to be beyond the expertise of the author/s of those reports. But what those reports highlight is the fluctuating nature of construction salaries, including the ability to achieve high salaries.
16. When all relevant considerations are synthesised for a gateway provision, the plaintiff has a right arm injury that restricts him for full and unrestricted construction work and had caused a loss of earning capacity that equates to an actual financial loss of 40 per cent or more.
17. Therefore, he has established an entitlement to commence a proceeding for pecuniary loss damages.
18. In addition, in accordance with Advanced Wire & Cable Pty Ltd v Abdulle[118] the plaintiff is also entitled to the leave of the Court to commence a proceeding for pain and suffering damages.

1. Because of the conclusion about the right arm/elbow, a detailed analysis of the left arm/elbow is unnecessary.
2. In fact, the subsequent overuse injury to the left arm, may in fact be a consequence of the right arm injury and so does not need to be looked at individually. Regardless and where I am not asked to decide that issue, in my opinion the left arm/elbow of itself produces a further incapacity for construction work.
3. That is because while the plaintiff may have already had an incapacity because of his right arm, on my assessment, again for a gateway provision, there is a further reduction by having a subsequent injury to his left arm. This further limits his employment options "after injury".
4. I consider that the further restriction caused by the plaintiff's subsequent left elbow, is of itself likely to be a significant impact on his earnings and productive of a "very considerable consequence". That is because while he may have had his range of job options narrowed by the right arm injury, the available job options are narrowed further by the subsequent left arm/elbow injury.
5. Accordingly, for similar reasons to those expressed about the right elbow, for a young person with a further reduction in his earning capacity, based on a broad common law approach, I consider the plaintiff has a loss of earning capacity from the left arm/elbow that will be productive of an actual financial loss of 40 per cent.
6. Therefore, from the left arm/elbow injury the plaintiff is entitled to the leave of the court to commence a proceeding for pecuniary loss damages, although again because of the conclusions expressed about the right arm this is something of a moot point.

1. The plaintiff persisted with a claim for "serious injury" based on the psychological/psychiatric consequence of his arm injuries, although it is hard to know why he persisted.
2. In brief, the evidence does not support a conclusion of a "permanent severe mental or permanent severe behavioural disturbance or disorder". He has a significant pre-existing psychological/psychiatric condition. Any such condition caused by a response to his work injuries is hard to assess, but regardless where he has no treatment, takes no medication, works full time, socialised and enjoys a range of domestic and recreational activities, he simply does not satisfy the "serious injury" test for any such condition.

1. The plaintiff has primarily established an entitlement to commence a proceeding for pecuniary loss damages based on the right arm injury. As such, he is also entitled to commence a proceeding for pain and suffering damages.
2. If needed, he has also made out an entitlement to commence a proceeding for pecuniary loss and pain and suffering damages from the left elbow injury.
3. I shall hear from the parties as to the appropriate orders to give effect to this decision, including orders for costs.

[1] Or as described in some of the medical evidence, bilateral tennis elbow

[3] [2025] VCC 1702 ("Tran")

[28] Presumably a reference to Dr Johns

[41] [2022] VSCA 15

[42] Again presumably a reference to Dr Johns

[105] [2014] VSCA 67 at [24], [25]

[114] [2009] VSC 454

[118] [2009] VSCA 170