Amato v Victorian WorkCover Authority [2025] VCC 780

(i) that the injury is a "serious injury" by reference to the pain and suffering consequences of any impairment or loss of body function,[3] and

(ii) that the pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being "more than significant or marked" and as "being at least very considerable".[4]

(a) must not take into account psychological or psychiatric consequences of the "injury" for the purposes of sub-paragraph (a) of the definition of "serious injury". These can only be taken into account for the purposes of sub-paragraph (c) of the definition of "serious injury";[5]

(b) must make the assessment of "serious injury" at the time the application is heard;[6]

(c) bring a value judgment to the assessment of whether "an injury" satisfies the narrative test.[7]

1. Where the alleged injury is an aggravation of a pre-existing injury or condition, Mr Amato must also satisfy the Court that the aggravation itself is serious. In such a case, "an analysis must be made of the extent of impairment of a body function before and after the relevant injury",[8] and the claimed aggravation must itself be a "serious injury".[9] Minor aggravations will not qualify as a serious injury.[10]

1. I find Mr Amato was not a credible witness.
2. I find the weight of the objective evidence supports a finding that the aggravation of Mr Amato's right shoulder in the June 2019 incident was serious, predominantly because he cannot now return to work as a plumber, but also because of the restrictions found by doctors.

1. Mr Amato was born in November 1970 and is currently fifty-four years of age.
2. He lives with his wife and two children aged twelve and eight.
3. He has eight other children from previous marriages who do not live with him, seven of whom are adults. He also has three grandchildren.
4. He is left-hand dominant. Until the subject injury, he had been a plumber since his teens.
5. On 8 April 2019, Mr Amato fell over at home while playing with his child on the grass. He injured his right shoulder and attended hospital. X-rays and an ultrasound were performed. He took a few days or a week off work, and returned to his usual duties. At that time he was working for "Revive a Drain".
6. On 30 April 2019, Mr Amato commenced employment with Service Today.
7. On 24 June 2019, Mr Amato was relining a pipe on a residential property. As he pulled out the lining from the pipe, a "bladder" burst, causing him to fall backwards with an outstretched right arm over a nearby retaining wall. He was driven back to "the factory" by a colleague and informed his manager of the injury.
8. He attended a doctor on the same day, x-rays were taken and he was referred to an orthopaedic surgeon.
9. Mr Amato lodged a WorkCover claim, which was accepted.
10. On 18 September 2019, Mr Amato underwent surgery on his right shoulder. The surgery was funded by the claims agent.[11]
11. Following the injury, Mr Amato performed light duties until June 2020, when he resigned and took up employment elsewhere.
12. On 7 January 2022, the claims agent accepted liability for "RIGHT SHOULDER (aggravation of pre-existing right shoulder injury) and associated surgical scarring".[12]

1. On 7 August 2019, Mr Padmasekara reported to Dr John Abraham, Mr Amato's general practitioner ("GP").
2. Attempts at imaging by MRI scan and ultrasound had been suboptimal, but "a full thickness supraspinatus tear" was confirmed. The impression after clinical examination was:

"[Mr Amato] has clinically significant postero-superior traumatic rotator cuff tear, at least involving supraspinatus and infraspinatus with pseudo- paralysis. In a young manual worker, this is a significant injury, and I have recommended surgical repair with arthroscopic rotator cuff repair, contracture release, bursectomy and biceps tenodesis. ... ."[13]

1. On 18 September 2019, Mr Padmasekara performed a right shoulder arthroscopic capsular release and rotator cuff repair, bursectomy and acromioplasty with subpectoral tenodesis.
2. The main operative finding was reported as "a large posterosuperior rotator cuff tear involving supraspinatus teres minor. This appeared to be a traumatic cuff tear with tear adjacent to cuff footprint".[14]

Dr John Abraham, general practitioner at Doreen Total Health Care Clinic

1. On 10 May 2021, Dr Abraham reported that Mr Amato suffered an injury at work in June 2019 when he fell to the ground while pulling a pipe. The injury was an aggravation of a pre-existing "small tear in supraspinatus" which occurred in April 2019. Mr Amato was unable to do his pre-injury duties, but could perform office duties. He had limited movement in the shoulder and could not lift his arm above his shoulders. He had now reached maximum improvement.[15]
2. In a separate, but undated report to Mr Amato's lawyers, Dr Abraham confirmed that Mr Amato first attended on 29 April 2019 with a sore right shoulder and ultrasound revealed "full thickness full width tear of the supraspinatus muscle".[16]
3. On 25 March 2024 (and again on 28 October 2024), Dr Abraham reported on Mr Amato's restrictions as follows:

(a) unable to perform overhead activities;

(b) unable to push/pull above shoulder level;

(c) can do prolonged sitting, standing or walking;

(d) cannot lift or carry above shoulder level;

(e) is able to drive and perform any other physical functions and motions;

(f) permanently restricted to light duties and right arm movements below shoulder only (incapacitated to perform other forms of heavy, physical or manual labour employment);

(g) incapacitated for unrestricted pre-injury duties as a plumber, which is likely to continue indefinitely.[17]

1. On 13 June 2024, Dr Awad reported on her assessment and examination of Mr Amato.
2. On examination, he had surgical scars consistent with the operation that were well healed. He had some atrophy of his deltoids and shoulder muscles. He had a noticeable Popeye on his right biceps. He had reduced range of movement in all planes.[18]
3. The diagnosis was rotator cuff tear, treated surgically, with persistent right shoulder dysfunction. Mr Amato had no capacity for his pre-injury duties and there were no workplace adjustments that would facilitate a return to work. Dr Awad reported that Mr Amato should be permanently medically restricted from undertaking any roles that require him to push, pull, lift, carry above 10 kilograms, reach forward, reach overhead, or make repetitive movements with his right upper limb. This was a permanent partial incapacity. It precluded any return to work in an active plumbing role for the foreseeable future.[19]

1. On 27 June 2024, Mr Moaveni provided an opinion to Zaparas Lawyers. The opinion was formed on the basis of Mr Amato's medical file, treating doctor reports, clinical records and radiological reports.[20] On examination, Mr Moaveni found:

"The supraspinatus strength in relation to Mr Amato (sic) right shoulder was assessed using the Jobe's Test (also known as the Empty Can Test). The right arm was elevated to 90 degrees in the scapular plane, with the elbow extended and the shoulder in full internal rotation. With a downwardly directed force to the arm, Mr Amato experienced pain. There was weakness with resistance. This is consistent with right-sided supraspinatus dysfunction.

There was also a positive external rotation lag sign on the right which is consistent with a massive, irreparable infraspinatus rotator cuff tendon tear. The belly press test was also weak, consistent with an upper subscapularis rotator cuff tear."[21]

1. Mr Moaveni considered the ultrasound scan of 26 April 2019, showed a full-thickness tear of the supraspinatus tendon. The imaging after 24 June 2019, revealed significant fluid in the glenohumeral joint and subacromial bursa, indicating an acute injury.[22]
2. Mr Moaveni reported that the examination findings confirm a positive external rotation lag sign consistent with massive irreparable infraspinatus rotator cuff tendon tear and a positive belly press test, indicating a subscapularis tear. He further stated that, together with the imaging results, these findings are consistent with an extension of the pre-existing rotator cuff tear, as would be expected from the incident described in his affidavit, and Mr Amato is not fit to work for pre-injury duties, having capacity for light office-based duties only.[23]
3. In a supplementary report dated 12 February 2025, Mr Moaveni considered imaging from the April 2019 incident and the June 2019 incident, compared the findings, and provided the following opinion:

(a) upon review of the x-rays taken on 8 April 2019 and the ultrasound taken on 29 April 2019, there was a full-thickness full-width tear of the supraspinatus with a large amount of fluid, which may represent a relatively acute injury;[24]

(b) the worksheet and available ultrasound images showed new significant findings not present in the initial ultrasound scan undertaken on 29 April 2019, nor noted in the radiologist's report of 28 June 2019. These included fluid around the long head of the biceps ("LHB") and possible subluxation of the LHB within the bicipital groove. From an orthopaedic surgeon's perspective, these findings indicated both injury and instability of the tendon, which typically caused shoulder pain and could significantly impact shoulder function. The LHB plays an important role in shoulder stability and biomechanics, and when unstable can create mechanical symptoms and lead to progressive tendon damage if left untreated. These findings were confirmed by the treating surgeon who documented the injury to the LHB, which he described as "biceps fraying", said to be corroborated by subsequent imaging taken in August 2019;[25]

(c) the post-June 2019 imaging revealed new objective findings, including glenohumeral joint effusion, medial subluxation of long head biceps, and subscapularis involvement. These changes represented acute traumatic pathology and new involvement of previously intact tendons;[26]

(d) the current condition of the right shoulder is causally connected in a material way to the injury sustained on 24 June 2019. From an anatomical perspective, that injury introduced new pathology affecting the subscapularis tendon. The LHP instability contributed to significant disruption to shoulder biomechanics, leading to persistent pain, restricted movement and loss of function.[27]

1. On 10 May 2022, the Medical Panel provided a certificate of reasons and opinion in relation to impairment from the accepted right shoulder aggravation and apportionment.
2. While the Medical Panel considered there were abnormal imaging findings from the imaging in April 2019, it opined that abnormal imaging findings may not necessarily correlate with level of impairment.[28]
3. The Medical Panel took into account the history that Mr Amato was able to return to his usual work as a plumber on full duties, including manual labouring, about a week after the April 2019 injury. He continued in that type of work until the injury on 24 June 2019. The Medical Panel also took into account the absence of documented evidence in the referral material of any restriction of range of motion of the right shoulder following the April 2019 injury.[29]
4. Based on the imaging, the Medical Panel concluded there was no functional impairment following the April 2019 injury which was playing a part in Mr Amato's current presentation.[30]

Associate Professor Evange Romas, consultant rheumatologist

1. On 1 December 2021, Associate Professor Romas reported that the cause of the supraspinatus rupture was the incident of injury on 8 April 2019. There was an accepted claim for the incident on 24 June 2019 and an evidentiary basis for apportionment.[31]
2. He further reported that the ultrasound obtained on 29 June 2019 indicated an acute, full-thickness full-width disruption. Accordingly, 6 per cent of Mr Amato's current right shoulder impairment was attributable to that injury and 4 per cent attributable to the relevant incident on 24 June 2019.[32]

1. On 12 August 2024 and 3 March 2025, Dr Kam reported that the radiological images taken on 24 June 2019, in comparison to those of 29 April 2019, do not support any acute injury on 24 June 2019.[33]
2. Significantly, Dr Kam reported that:

"... musculoskeletal ultrasound examination is a dynamic imaging technique that warrants real-time assessment at the time of examination. Retrospective review of static representative images taken by the operator as required for this report may be biased by the images chosen by the ultrasound probe operator and may not truly or fully represent findings present at the time of the examination. ... It is also not possible to retrospectively evaluate the presence of symptoms at the time of ultrasound transducer probe interrogation."[34]

1. On 19 March 2025, Mr Pak reported that the ultrasound on 26 April 2019 showed a full-thickness tear of the supraspinatus tendon, which was an acute injury.[35]
2. He further reported that the clinical findings of increasing weakness of the right shoulder after the second injury, was an indication of an extension of a tear that was previously compensated to one that was decompensated. Therefore, the incident at work accelerated the development of clinically-significant functional loss, which would have occurred eventually, even without the incident at work.[36]

1. Mr Amato swore six affidavits.[37] In summary, he deposed as follows:

(a) he was employed as a full-time plumber by Revive a Drain between December 2018 and Easter 2019;[38]

(b) the incident in April 2019 caused some occasional shoulder pain, but did not stop him from working in his full capacity. He had a few days off work and returned to normal hours and duties;[39]

(c) on 30 April 2019, he commenced employment at Mr Pipes as a plumber. Following the incident in June 2019, he has been working in light duties, initially for the same employer, and from June 2020 onwards, for a different employer;[40]

(d) following the surgery in August 2019, he had treatment from his GP, took Nurofen tablets and performed daily exercises at home;[41]

(e) he had shoulder pain most of the time, and used his left hand for most things. He had numbness and tingling in the fingers on his right hand;[42]

(f) the pain restricted his ability dress himself, put things up on high shelves, pick up his children and grandchildren, ride his bike and go jet-skiing;[43]

(g) he was unable to do plumbing work and was restricted to light work and office duties, supervising at a plumbing company, rarely using tools;[44]

(h) he had other health issues, including kidney stones, a heart attack in March 2023 and investigations for neck pain, and lifestyle issues, for which he was having counselling;[45]

(i) he lost grip strength in his right arm and does very little around the house;[46]

(j) he did not want to see the surgeon again as he believed he had a bad result from surgery;[47]

(k) in January 2025, his employment was terminated and he feared for his future, as he could not return to plumbing work. In April 2025, he found employment as a supervisor and was not required to work on the tools.[48]

1. Mr Amato's wife swore an affidavit on 18 July 2024. In summary she deposed that:

(a) Mr Amato worked in the plumbing industry for as long as she has known him;[49]

(b) before the injury, he was very active at home. After the injury, he had to make many changes about the way he used his arm and was cautious about overhead activities. He could no longer lift things as he did before. He could no longer gather rubbish and dispose of it at the tip;[50]

(c) when he slept on his right side, he became stuck and could not push off with his arm to roll over; he needed to lift himself into a sitting position first.[51]

1. Mr Basso swore an affidavit in support of Mr Amato's case. He deposed to working alongside Mr Amato from May 2019 onwards. He observed Mr Amato's role to have "more physically demanding aspects of the plumbing work duties"[52] without restriction. He did not observe him to have any issues with his right shoulder.[53] After the June 2019 injury, he observed Mr Amato to be working in a supervisory role in the office.[54]

1. The defendant cross-examined Mr Amato mostly on credit matters which are addressed below. In summary, the remainder of the cross-examination elicited the following evidence:

(a) he still rode his Harley-Davidson motorbike "for short bursts" and met up with his friends from a motorcycle club;[55]

(b) he could drive a car, go shopping and carry bags, but could not lift his right arm above shoulder level. He had no shoulder pain at rest, but at night in bed he might feel pain if he turned over onto the shoulder;[56]

(c) he was working in a supervisory role earning more money than he did as a plumber;[57]

(d) he could wash and dress independently;[58]

(e) he was not taking any painkillers when he attended the Medical Panel.[59]

(a) he could now only ride his motorbike for about two hours, whereas before he was injured he could ride without a time limitation;[60]

(b) he did not ride a pushbike anymore because of pain in the shoulder;[61]

(c) he demonstrated to the Court his restriction of movement in the arm - he was able to reach the top of his head with the right hand, but made a jerky motion with his arm as he did so. He said he could comfortably reach his arm to just below shoulder height;[62]

(d) he was limited in his ability to shave his head, he used to use both hands before the injury. He has to do that every four weeks.[63]

1. In an application such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.
2. The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon his behaviour and performance on examination and on testing.[64]
3. Credit is also important, because the Court must be satisfied of the alleged consequences and their impact on the plaintiff's residual capacity.
4. Despite the importance of credibility or reliability, a court must not disregard reliable medical evidence and objective evidence merely due to concerns about the applicant's credibility. The case has to be decided on the whole of the evidence.[65]
5. Mr Amato answered questions directly and was responsive to the question asked. At times, however, he gave evidence which was inconsistent with his other oral evidence and with the contemporaneous material. I accept the defendant's submission that Mr Amato was not a credible witness for the following reasons:

(a) on 30 August 2022, 19 June 2024 and 18 December 2024, Mr Amato deposed that he continues to attend his GP.[66] In cross-examination, however, the GP records and reports were put to Mr Amato and he accepted the progress notes do not contain references to any attendance for treatment for the shoulder in that period. He did not accept that the affidavits were drafted in order to create a false impression;[67]

(b) on 19 June 2024, Mr Amato deposed he takes Panadeine Forte two to three times a week.[68] On 18 December 2024, Mr Amato deposed he continues to rely on Panadeine Forte for pain relief. On 3 April 2025, Mr Amato again deposed to taking Panadeine Forte tablets occasionally;[69]

(c) in cross-examination, he confirmed, he was taking approximately 100 to 150 tablets of Panadeine Forte a year.[70] The progress notes of his GP were put to Mr Amato and he accepted there was only one prescription for Panadeine Forte written, on 26 September 2023, for twenty tablets. Despite inconsistent evidence on this point, he ultimately agreed he did not have another source for Panadeine Forte.[71] He did not accept he had overstated his use of Panadeine Forte in order to make his injury look more serious than it was;[72]

(d) when asked about the April 2019 injury, Mr Amato initially said he had been referred for physiotherapy, but had not attended, "[n]o, I went to work instead";[73]

(e) in his affidavit, Mr Amato deposed that, following surgery for the June 2019 injury, he attended physiotherapy for three months.[74] When asked about this, he told the Court he had not attended physiotherapy at all after the surgery, "I didn't have any physiotherapy ... I done my own physiotherapy";[75]

(f) when asked to clarify the position about physiotherapy, he told the Court he attended physiotherapy "between the first and second injury".[76] When it was pointed out to him he had earlier told the Court he had not done any physiotherapy after the first injury, he told the Court, "I never said that".[77]

1. I do not accept Mr Amato's explanation for his failure to attend physiotherapy. It contains internal inconsistencies. Initially, he told the Court that funding for the physiotherapy had been withdrawn.[78] When queried about the circumstances of the withdrawal, Mr Amato said "the insurer said they can't fund me for it. I've got to pay it out of my own pocket".[79] When a letter from the agent approving funding was shown to Mr Amato, he then changed his position again. He explained that he had spoken to someone, told them he could not afford to pay for the physiotherapy, the employer would not pay, and so he could not afford to make the initial payment for the physiotherapy.[80]
2. I formed an unfavourable impression of Mr Amato's credit because of the misleading affidavits and the internal inconsistencies in his evidence about the physiotherapy. I am therefore required to examine, with greater care, the objective evidence about his restrictions and consequences.

(a) he had been prescribed Panadeine Forte for other conditions (kidney and toothache) but it was conceded that, even so, the number of tablets did not equate with Mr Amato's evidence that he was taking 100 to 150 tablets a year;[81]

(b) counsel referred to the need to focus on objective evidence where a plaintiff had told "untruths". While the Court may reject Mr Amato's evidence on medication or attendances, that should not lead to all of his evidence being rejected. The false impression created by his affidavits does not necessarily infect all matters;[82]

(c) objectively, there was a significant orthopaedic injury. The intraoperative findings confirmed the extent of the injury. Dr Awad noticed atrophy of the deltoids and shoulder muscles and the noticeable Popeye deformity, Mr Pak found bunching of the muscle belly and the Medical Panel found disuse atrophy of both the infraspinatus and supraspinatus. There was consistency among the objective findings;[83]

(d) Mr Amato is relatively-young at fifty-four and was now restricted in his work options. After the April 2019 injury, he could work as a plumber, however can now no longer do so on account of the June 2019 injury;[84]

(e) The defendant has not discharged its evidentiary burden of establishing that Mr Amato would have come to surgery regardless of the June 2019 injury. Mr Pak's opinion is inadequate for that purpose.

(a) Mr Amato lacked credibility with respect to the extent of the impairment caused by his shoulder and the need for treatment and medication;[85]

(b) the "aggravation" injury is not serious, as Associate Professor Romas only apportioned 4 per cent impairment for the June 2019 injury and 6 per cent impairment for the April 2019 injury. That is supported by the lack of medical treatment;[86]

(c) any impairment assessment must start from the position that Mr Amato is left-hand dominant. He has retained the ability to perform many activities, including motorbike riding. He did not depose to having had a particular love of plumbing, so the fact that he now cannot return to that trade is not a serious consequence.[87]

1. I do not accept the submissions on behalf Mr Amato that I should accept some of his evidence, even if I have rejected other evidence on the basis of credit.
2. Mr Amato's affidavits were misleading with respect to his treatment and frequency of his attendances on his GP. He deposed on oath that he had undertaken three months of physiotherapy and then told a number of "untruths" to the Court about the physiotherapy.
3. I accept the submission on behalf of the defendant that Mr Amato lacked credibility with respect to the extent of the need for treatment and therefore the extent of his impairment. Accordingly, I reject Mr Amato's evidence unless it is corroborated or supported by objective evidence. I address these matters below.

1. Of significance to this assessment is the evidence of Mr Basso that he observed Mr Amato performing the more physically-demanding tasks of a plumber's job after the April 2019 injury and before the June 2019 injury.
2. I reject the opinion of Dr Kam, which seems to be based on the premise that it is not possible to retrospectively evaluate the presence of symptoms based on radiological investigations. If that be the case, then Dr Kam's opinion, which is a retrospective analysis must, itself, be unreliable. I accept the observation by Mr Moaveni that Dr Kam's opinion fails to address the new glenohumeral effusion and explain the progression of biceps instability.
3. I prefer the opinion of Mr Moaveni to that of Mr Pak, because Mr Moaveni has provided a clear path of reasoning supported by photographs of the imaging, and his own findings on clinical examination.
4. The Medical Panel also found Mr Amato had not been precluded from his pre-injury work as a result of the April 2019 injury. In particular, the Medical Panel considered that any findings on the April 2019 imaging were not necessarily consistent with impaired function. Ultimately, there was no evidence of restricted range of motion following that injury.
5. I accept the opinion of the Medical Panel and Mr Moaveni as to the state of Mr Amato's right shoulder injury following the April 2019 incident at home. It did not preclude him from working as a plumber, there was no evidence of restriction of movement and it was playing no role in his presentation at the time of their assessment. The second injury included new pathology affecting the subscapularis tendon and LHB instability.

1. There was no dispute that the current state of the shoulder is permanent.

1. Mr Amato has had surgery on his right shoulder. Following the surgery, he developed a Popeye deformity.
2. As at the date of hearing, Mr Amato is having no treatment. He had no physiotherapy after the surgery and received one prescription from his GP for Panadeine Forte on 26 September 2023, some four years after the surgery. At the time the prescription was written, Dr Abraham noted a complaint of pain in the shoulder and pins and needles in the middle and ring finger on the left side. A cervical CT scan was ordered on the same day.[88]

1. The evidence before me is that Mr Amato undertook an apprenticeship as a plumber when he finished high school. His counsel described him as a "lifelong plumber". This was not disputed by the defendant.
2. The weight of the evidence supports a conclusion that Mr Amato cannot return to work in his pre-injury trade as a plumber. I accept the evidence of Dr Awad, who is an occupational physician, that Mr Amato cannot now return to work as a plumber. Mr Moaveni and Dr Abraham both consider Mr Amato can only perform light work. There was no evidence contradicting these opinions.
3. Although he is currently employed in a supervisory role earning better pay, if for any reason he loses that job, he would have to look for other work. For a man approaching his mid-fifties, that may pose its own challenges.
4. I reject the submission on behalf of the defendant that there needed to be some evidence that Mr Amato previously enjoyed his work as a plumber. Whether he enjoyed the job or not, until the June 2019 injury, he was able to work as a plumber to earn his livelihood. He cannot now return to that, so his job options are significantly fewer. I consider this a consequence of some significance.

1. Mr Amato's wife deposed that he sometimes cannot roll over from his right side and becomes stuck. I accept this occurs. He also suffers from sleep apnoea, which affects his sleep and is unrelated to the shoulder injury.

1. Mr Amato's mobility is unrestricted. He is able to drive a car and ride his Harley-Davidson motorcycle.

1. Mr Amato is able to shower and dress himself. I accept he may have to modify the way he puts on a shirt or jumper on account of the right shoulder. A limitation of movement of the shoulder was observed by Mr Moaveni on formal testing.

1. Mr Amato did not give evidence of sports or hobbies. He likes to meet friends from a motorcycle club and his shoulder pain and restriction does not prevent that activity.

1. I find Mr Amato is unable to return to work as a plumber on account of the June 2019 injury to his shoulder. I find he has a restricted range of movement, a Popeye deformity of his biceps, and muscle wasting around the shoulder. He is restricted in the amount of work he can do around the home, such as throwing out rubbish and gardening.

1. Exercising the value judgement required of me, I find the aggravation of Mr Amato's pre-existing shoulder injury to be "more than significant or marked" and "at least very considerable" as it impacts on his ability to return to work as a plumber, on the strength of his arm and on its range of movement. I grant Mr Amato leave to commence proceedings for pain and suffering damages.
2. I will hear the parties with respect to costs.

[7] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]

[8] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436 ("Petkovski") at 444 and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 30 at 314 ("AG Staff"), paragraph [26]

[9] Petkovski at 439 and AG Staff at 314, paragraph [26]

[10] Petkovski at 444, AG Staff at 314, paragraph [26]

[11] Plaintiff's Amended Court Book ("PCB") 42 and 47

[20] X-ray of the right shoulder dated 8 April 2019, ultrasound of the right shoulder dated 29 April 2019, ultrasound of the right shoulder dated 28 June 2019, MRI scan of the right shoulder dated 21 July 2019 and ultrasound of the right shoulder and upper arm dated 2 August 2019 at PCB 104.

[37] 30 August 2022, 19 June 2024, 18 December 2024, 3 April 2025, 13 May 2025, 15 May 2025

[40] PCB 15 at paragraphs [13]-[14]

[41] PCB 16 at paragraphs [19]-[21]

[42] PCB 16 at paragraphs [22]-[23] and PCB 24 at paragraph [7]

[43] PCB 17-18 at paragraphs [26], [28], [31] and [34]

[44] PCB 18 at paragraph [35] and PCB 21 at paragraph [12]

[45] PCB 19-20 at paragraphs [3]-[4], [6]-[8] and PCB 23-24 at paragraph [2]

[48] PCB 27 at paragraph [7] and PCB 21 at paragraph [12]

[50] PCB 34-35 at paragraph [5], PCB 356 at paragraphs [17], [19] and [21]

[64] Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439 at 448 (per Brooking JA); and Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]

[65] Yilmax v Speciality Fashion Group Ltd [2019] VSCA 100, cited with approval in Samaras v Transport Accident Commission [2019] VSCA 255.

[66] PCB 16, PCB 21 and PCB 24

[69] PCB 21 at paragraph [9], PCB 24 at paragraph [5] and PCB 27 at paragraph [6]