Beswick v Victorian WorkCover Authority [2025] VCC 815

"... when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable."

1. I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
2. Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
3. When a worker is under twenty-six years of age at the date of injury, pursuant to s325(e)(i) of the Act, he must establish that at the date of the hearing, he has a loss of earning capacity of 40 per cent or more. Further, he must establish, pursuant to ss(e)(ii) of the Act, that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more. Subsection (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury, does not apply.
4. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[3] Haden Engineering Pty Ltd v McKinnon[4] and State of New South Wales v Moss[5] in reaching my conclusions.
5. The plaintiff affirmed two affidavits and was cross-examined. Also in evidence were medical reports and other material. I have read all of the tendered materials.
6. The defendant did not contest causation of the back injury. It did not pursue any issue of the relevance of updated MRI scan changes and was not "pressing any point in relation to the hip".[6]
7. Pain and suffering remained in issue at the start of the hearing, following my comments that "on the papers", seriousness from a pain and suffering perspective seemed to be strong.[7]
8. The defendant indicated the principal issue was the question of capacity for a worker under twenty-six. There was the related question of the plaintiff's motivation. In terms of retained capacity for work, the defendant relied principally on Dr Slesenger's opinion.[8]
9. From the plaintiff's perspective, the "main and obvious dispute" was in relation to economic loss. Assessed on a common law basis, the plaintiff had suffered the requisite 40 per cent loss of earning capacity.[9]

1. The plaintiff is presently aged twenty-nine, having been born in November 1995. He completed VCAL in 2012, having worked part time as a cook at Nando's and KFC during that year.
2. In October 2012, he commenced work with the employer as an apprentice carpenter. He started his apprenticeship when nearly seventeen, straight from school, and finished it without breaks.[10] He has a Certificate III in Building and Construction.
3. He fractured his foot at work in 2018 and had twelve weeks off. He made a good recovery and did not submit a WorkCover claim.[11]
4. His job with the employer involved work on residential constructions on a full-time basis. The work was heavy and physically demanding, including involving heavy, repetitive and awkward lifting. He often had to lift weights, such as frames of well over 100 kilograms, with one or two other workers, as cranes were only available on the bigger jobs. The trusses were also heavy to drag and put into position, as were the double-glazed windows, sliding doors and beams.[12]
5. He developed back pain in 2019. He saw his general practitioner ("GP"), Dr Nasralla, on 12 November that year. He underwent a lumbar CT scan later that month and also had physiotherapy treatment at Lakeside Physio in Pakenham.
6. In early 2020, he developed right hip pain and in April that year, he ceased work. Save for a brief return to work for three or four days in October 2020, he has not worked.
7. When he finished up at work in April 2020, he was twenty-four and he had been with the employer for seven-and-a-half years. He was then very much settled in that employment and he had a good relationship with the boss. He had a significant amount of experience and he was well into his career.[13]
8. Prior to his injury, the plaintiff enjoyed computer gaming. He did housework, gardening and handyman tasks around the house and enjoyed spending time with family and friends.

1. On 4 September 2020, he had a lumbar MRI scan.
2. He was referred to pain specialist, Dr Neels Du Toit, whom he saw on 1 March 2021. On 6 April, he had an MRI scan of his right hip. Dr Du Toit performed a sacroiliac joint injection on 12 May 2021.
3. In mid-2021, the plaintiff's employment was terminated by the employer.
4. On 15 July 2021, the plaintiff had a right hip intraarticular joint injection. In November that year, he had a MRI scan of his lumbar spine and right hip. He saw Mr Justin Hunt, orthopaedic surgeon, for his hip condition. Later that month, he had a CT scan of his right hip and an x-ray extension of his lumbar spine.
5. On 14 December 2021, the plaintiff saw Mr Craig Timms, neurosurgeon, for his back condition. He had an epidural injection in his spine in mid-2022, and continued physiotherapy.
6. The plaintiff went on a public waiting list for surgery after the insurer refused Mr Hunt's request for funding of a right hip arthroscopy.
7. In March 2023, the plaintiff had a RACZ epidural performed by Dr Du Toit. This involved three injections over eighteen hours with a catheter inserted next to the spinal cord.
8. As at August 2023[14], the plaintiff was seeing his GP every two months or so and having monthly physiotherapy. He was taking strong medication, but it made him feel sick, so he was then taking Panadol, up to eight a day, at least twice a week, and otherwise six a day of the same quantity of Nurofen. He used heat and cold packs. WorkCover had ceased physiotherapy funding for the right hip and he did stretching exercises at home.
9. He was then suffering constant pain in his lower back, which was of a constant dull ache in nature at the bottom of his spine, radiating down his spine and towards his hips. Also, at times he experienced sharp stabbing pain.
10. His pain was aggravated by activity, including standing and sitting for too long, bending over on a repetitive basis, lifting heavy weights and also by walking long distances. He experienced electrical shock feelings down both legs, moreso the right. He had occasional numbness in his shins and pins and needles on the soles of his feet.
11. He had problems sleeping due to back pain. He was then restricted in his ability to do housework, cook, do gardening and home maintenance tasks.
12. He always loved computer gaming and used to play for prolonged periods, but could now only play for a limited period of time.
13. His capacity to care for his young family had been affected. He struggled looking after and playing with his children. This was very upsetting for him, because he preferred to be a hands-on father. He also felt guilty his wife was bearing the load of looking after the house and caring for the children.
14. His mental health had been affected. He felt useless and terrible all the time and the relationship with his family had been affected, as had his intimate relationship with his wife.
15. He had put on a significant amount of weight because he was not active. He used to go out to work every day and perform heavy physical manual work which kept him fit and able to keep his weight under control. Now he just sat around most of the day or laid down to manage his back pain and had been unable to maintain a healthy weight.
16. As a result of his back pain, he had developed right hip symptoms. He suffered a dull constant pain on the outer side of his right hip. When aggravated, it moved also into his groin.
17. His mood was low. He felt useless as a provider for his family and in the house and caring for his children. His self-esteem was very low. He felt terrible about the way he looked and felt. He felt hopeless, helpless and depressed.
18. As a result of his back injury, he was then unable to work. He was unable to stand or sit for long periods, bend over on a repetitive basis or lift heavy weights. He did not believe he would ever be able to return to work as a carpenter as a result of his injuries. He did not believe he would ever be able to work in any sort of physical or manual labouring type work in the future.
19. He intended to start his own carpentry business. He was planning to continue working for the employer but go off the books and start subcontracting to his boss. That would give him the opportunity to learn how to run his own books and manage what was effectively his own business without employees. He then planned to employ an apprentice or another carpenter and have his own business. He had dreams that one day his children might be interested in taking over the business that he wanted to build.
20. He was aware that performing heavy manual carpentry work was for younger people and when he got older he would be better placed to be running his own business. That was what a lot of carpenters did, for example his boss spent a lot of time on the phone managing the business, doing administration and finding new work, as opposed to being on the tools all day.
21. He had discussed this with his wife and parents and they were supportive of him pursuing his career direction.
22. He was then not working and did not know when he would be able to return to any form of work. He believed his employment options were limited. He had only ever done manual work. His only qualification was as a carpenter and he did not know what other work he could do.
23. In his second affidavit, he described recent treatment and investigations undertaken.
24. He had an MRI scan of his lower back on 19 March 2024.
25. On 10 September 2024, Mr Cam Fary, orthopaedic hip and knee surgeon, performed hip surgery. The plaintiff borrowed the money from his grandparents to pay for the surgery, as the insurer would not fund it.
26. Although he had been left with some intermittent pain and restriction of movement in his right hip which he can manage with rest, it has improved significantly since the surgery.
27. When he saw Dr Slesenger in February 2025, his main concern was his lower back pain.[15] His right hip had improved. He did not have difficulty weightbearing so much anymore.[16]
28. When Dr Slesenger mentioned under the heading "Right Hip", the plaintiff can walk and stand for fifteen or twenty minutes, the plaintiff was really referring to his capacity or tolerance in relation to his back. His hip can be somewhat of a problem for him for a very short time and it still causes him to suffer 2/10 pain, but standing and sitting tolerances are not due to hip pain.[17]
29. The plaintiff agreed he told Dr Slesenger that he was having very limited treatment.[18]
30. He remains under the care of Mr Fary for his hip, but does not have a current appointment. He has not done any pain management. He last saw Dr Tu Toit in January 2024 and did not have a current appointment to see him.
31. He last had physiotherapy two to three months ago but stopped because he had transport problems. He has now just obtained another car.[19]
32. For back pain, he takes six to eight Panadol tablets a day and six Nurofen. He takes Voltaren Rapid and Panadeine Forte, which are prescribed by his GP as required every few weeks. He is trying not to take too much medication. His GP, Dr Nasralla, gives him certificates of capacity for his disability insurance payments.
33. As the clinical records confirmed, the last prescription of Panadeine Forte was in January 2025 and it had not been prescribed in the twelve months before that. Panadeine Forte was not prescribed for his hip after hip surgery.[20]
34. Dr Du Toit viewed narcotic medication as extremely addictive for someone of the plaintiff's age. He keeps an accurate pain chart to monitor the plaintiff's pain levels. The plaintiff has followed his caution in relation to addictive narcotic medication.[21]
35. Dr Du Toit had told him further injections were not required because they were not having the desired effect. He suggested invasive surgery with a spinal stimulator device implanted under his skin. The plaintiff was quite worried about any treatment of an invasive nature and was quite hesitant to go forward with it.[22] His father actually had a stimulator inserted; it needed to be done three times, and he had little success with it.[23]

1. Although he struggles to walk long distances because of his back pain, he tries to go for short walks to manage his pain and keep up a level of fitness.
2. Although he struggled with some weight problems prior to his injury, since then he has put on weight, which he believes is due to lack of activity.
3. He suffers constant lower back pain which radiates into his right leg. He tends to limp.
4. As a result of his lower back injury, he struggles to sit and stand for long periods, bend over on a repetitive basis or lift heavy weights. He struggles to walk over uneven ground, go up and down stairs or ascend ladders. He cannot run or jump, and struggles with kneeling and squatting.
5. Issues with sleep because of back pain have continued. His activities of daily living have been affected. He avoids shopping. He picks the kids up from school.[24] He can cook light meals, avoiding prolonged standing. He does basic housework only and receives assistance from WorkCover in this regard. He needs a neighbour's help with gardening.
6. He is unable to drive long distances due to back pain and when he does so, he needs to take regular breaks about every thirty to forty-five minutes, when get gets out of the car and stretches.
7. He tends to lie down during the day up to two to three times to relieve his back pain.
8. As a result of not working and not being able to pursue his career and intention to run his own business, his mood has been affected. He lacks motivation and feels low. He has lost self-esteem and confidence and feels guilty his wife has to do so much for the children. Marital intimacy problems continue, as do issues with his children, not being able to physically hold and play with them as much as he would like.

1. He believed his income protection payments started in late 2022 and they have continued uninterrupted. He is presently receiving $3,700 after tax monthly.[25]
2. Having been taken to the summary of his 2018 and 2019 tax returns, he agreed he is now receiving more on income protection compared to what he was earning at that stage.[26] He agreed what he is receiving under this policy permits him to live a similarly comfortable life to when working for the employer in 2018/2019.[27]

1. But for his injury, he intended to continue working as a carpenter. He had plans to gradually build up his own business to have a business like his boss.
2. He had intended to work as a subcontractor. His area of experience was in housing construction. There was a huge demand in areas such as Pakenham, which is a short distance west of Drouin, and also near Warragul. He believes there would have been many opportunities for him.
3. He has not returned to work and does not know when he will be able to return to any form of employment. He has only ever done manual-type work. He has not worked in an office or done any administration or customer service. Also, he struggles to sit for long periods due to back pain. He uses the computer to watch videos or play games, but needs to take regular breaks to manage his back pain, as he has not been able to sit for long periods.
4. He would like to work. He is investigating what he can do. Some friends of his work for a small internet company, working from home doing some phone work. Perhaps this is a role he could do, somewhat like a virtual assistant, half a day for five days a week, with appropriate breaks.
5. At most, he believes he could maybe try this role where he could sit and stand at will and use an ergonomic desk. In those circumstances, he might be able to work five days a week for half a day with appropriate breaks.[28]
6. Earlier this year he discussed a virtual support role in a small internet company with friend who work in that role. He has not taken any further steps in that regard.[29]
7. He understood the role to involve answering phones and directing phone calls, writing up support tickets on the computer.[30] He confirmed he would like to work.[31] He believed he could work at least on a part-time basis and that he really would not know his capacity until he tried.[32]
8. He is not currently looking for work and has not actively sought work in the last year. The last time he worked was in October 2020, for the employer. He has not looked in the local paper, but he has discussed the possibility of work with family and friends.[33]
9. He had not discussed returning to work with his GP, but he discussed the job options put forward by Nabenet in 2022.[34] His GP laughed off every job and thought they were all ridiculous.[35]
10. Having been told his GP had recently reported that that he could be trained for non-physical work, he agreed his GP's attitude had changed.[36] He has not spoken to him about returning to work, nor had he spoken to his physiotherapist about it. He has taken no steps in the last two years to retrain since stopping work.[37]
11. He had in fact done a traffic course to do stop-and-go work, but he was deemed unfit to start the job.[38]

1. A number of jobs have been suggested as suitable, but he did not think he could perform them.
2. He did not think he would be able to work as a prepurchase building inspector. He is familiar with that job from his work as a carpenter. It requires driving for long distances, standing for long periods, climbing ladders, walking on uneven ground and inspecting roof spaces and subfloors. He would struggle to perform all of these physical activities. He does not have any customer service or sales skills. He would also struggle to climb ladders and lift them in and out of cars.
3. He could do a couple of the roles in the prepurchase building inspector role, but not all of them. He could not do inspections on all surfaces, work in the roof, or inspection of subfloor areas. He could do the driving, depending on the distance.[39] He could provide a report, with training.[40]
4. He did not believe he would be able to perform the role of trade counter sales person, a role he is familiar with from visiting Bunnings. As a result of his back injury, he would not be able to stand for long periods in a large warehouse store. He would not be able to assist loading purchases into customers' vehicles, cutting timber with electric drop saws or stocking shelves. He would not be able to use hand trolleys with very significant weights. He would struggle to bend down to the lower shelves or under the counter. He could not lift heavy weights.
5. He believed the suggested technical support officer was an information technology support role. He would not be able to sit or stand for long periods of time to do that job. He only had basic computer knowledge. He does not have up-to-date knowledge of all computer applications, such as Microsoft Office and security software. He does not have any experience in this type of work, which he was told includes installing computer equipment. He would not be able to carry computer equipment and install it, which would require bending over for lengthy periods. He does not have sufficient knowledge or confidence to do this work.
6. He did not believe he would be able to perform the role of construction estimator. He left school in Year 12, having completed VCAL. He has ADHD and is a poor student. He believes he would struggle to get the qualifications of a Certificate IV or Diploma in Building and Construction. He has no experience with preparing contracts, negotiating them or developing financial plans for clients, or any of the other skills referred to in the job description. He believes this job is beyond him.
7. He is not familiar with the role of maintenance planner. He has been advised it requires qualifications, such as a Certificate IV in Engineering. He has no experience in developing maintenance planning strategies or scheduling, coordinating, or monitoring the maintenance of all planned equipment. He would not be able to sit for long periods of time at a computer, for example while working in a call centre. He would not be able to install or download appropriate software or do computer repairs.
8. He would be unable to work as a truckdriver because he cannot sit for long periods to drive. Getting in and out of the truck would be too difficult and he cannot do any heavy lifting.
9. He does not believe he could work as a customer service representative, which can involve standing or sitting for long periods, walking around frequently and lifting. He has no sales skills.
10. He knew in a broad sense what was involved in customer service work as suggested by Nabenet. Just thinking about it from a skills perspective, he thought he had the skills to do it and he thought he could do it, at least on a twenty-five hour a week basis, but would not know about his capacity until he tested it.[41]
11. He did not know what was involved in the customer service in a car rental business, a job supported by Nabenet and Dr Slesenger. To some extent he knew what was required in cafes and fast food outlets in that regard.[42] He did not work with the register when he worked as a cook at Nando's and KFC in his teens.[43]
12. He assumed that he had the skills for front counter work at fast food places, as long as there was no repetitive lifting, bending and twisting. It would depend on the role.[44]
13. He did not necessarily regard himself as having good problem-solving skills. He would be unable to work as a rental sales person. If the job required long sitting and standing, he would be unable to handle it. He could walk for short periods to check rental stock against inventory.[45]
14. Prolonged standing with bending to retrieve stock from shelving for customers would be extremely painful. He assumed inspecting and returning stock would involve bending. He would be unable to lift and carry moderately heavy equipment, and scaffolding would be too heavy to carry.[46]
15. Doing customer service work as Nabenet suggested, his pain would be unmanageable if he was required to sit or stand for significant periods. It would be extremely painful doing lifting.[47]
16. With appropriate training, "perhaps" he would be able to do, quickly and efficiently, work in customer service selling building equipment. He would definitely struggle working in a fast-paced environment, as he would with conducting general cleaning duties and ensuring stock levels were maintained.[48]
17. He was asked about his ability to do a job as an IT technical support officer, the primary purpose of which was to diagnose and remedy computer and software problems for small businesses and residential customers. With the appropriate training, it was the sort of work he could do, but it depended on what else the job involved. He knew his way around a computer "somewhat". He agreed there was no reason he could not undertake further training. Taking calls from customers would not cause him a problem. With training, he could deal with Microsoft. He would be able to undertake necessary training for various roles. It sounded right that that is a job he could do, twenty-five hours a week, and possibly more, if and when he gave the role a go.[49]
18. In re-examination, he confirmed he had problems with his memory and concentration which were required in the IT technical support officer job.[50]

1. He told CoWork his barriers to return to work were "pain, mental health, money and focus". It would be too much responsibility to accept a suitable job if it were offered and he would be letting too many people down. He did not want a job where he would work for a couple of hours and then come home sore and it would be too painful to do anything. What was the point of that?
2. He agreed he acknowledged he lacked financial motive to resume paid work, "but not entirely, just in part". He agreed he had said he had always had the insurance and that if the case worked out and he got some money, he planned to purchase a second car. He agreed he declared he was waiting for any type of money to come through. He agreed he had really not thought about any retraining and he did not have the money for it. He was not sure what he could do.[51]
3. It was not necessarily the case he was happy enough sitting on his payments and otherwise really waiting for the case to settle before he turned his mind to returning to work. He is sitting comfortably on the payments at the moment, but he would prefer to return to work.[52]
4. It was not true at all that he would start to seriously think about returning to work when he got some money out of this case. He does not regard himself as being on the scrapheap and accepts he has some capacity for work. It was not entirely true he was just choosing not to exercise it at the moment. He was not choosing to work. He agreed one of the reasons he was not working was because of the insurance payments.[53]
5. He agreed he told the vocational assessor, in terms of further occupational interests, he had "nothing really, nothing in particular", and with prompting said "something simple like Bunnings" was what he was looking at.[54]
6. He disagreed he sat throughout the 105-minute interview with Co Work. He can only sit comfortably for twenty minutes. He has a stand/sit ergonomic desk which goes up and down with the camera and he understood the confusion.[55] He maintained he would have moved. He stood at the 90-minute mark of the interview for the remaining fifteen minutes.[56]
7. "Yes, and no" he was an excellent communicator. He agreed he had no difficulty in court. It was fair he was pretty horrible at maths.
8. He agreed he enjoyed computer games, which he plays most days, not every day, for about one to two hours broken up; three to four days a week sounds accurate.[57]
9. It would be fair to say he knew his way around a computer.[58] But he did not know how or why Dr Awad reported he had above average IT skills, because he did not tell the doctor that.[59]
10. When he was talking to CoWork about suitable employment, he assumed it meant sort of any job that was offered to him at that time. If there was a job offer he could do and could cope with, cope with the hours and the situation and so forth, he would jump at the opportunity to do that work.[60]
11. Zurich, who is paying the income protection payments after WorkCover ceased in October 2022, suggested some jobs every three months in the first year, but not after then. It was his understanding that, as it presently stands, he will receive these income protection payments until he is sixty-five.[61]
12. His wage records confirmed a considerable increase in earnings over the years. There was a bit of a lull one year, when he had three months off work when he hurt his foot. He did not receive any benefits during that time and did not put in a claim.[62]

Dr Youssef Nasralla, GP, St Antony Medical Centre, Pakenham

1. Dr Nasralla first saw the plaintiff in relation to back pain on 15 April 2020. He continues to be his GP.
2. In June 2022, he certified the plaintiff was suffering from a medical condition which, in his opinion, was likely to result in him being unlikely ever again to be employed in a capacity for which he is reasonably qualified by education, training or experience. The plaintiff was not able to work as a carpenter, caused by back pain ꟷ two disc bulges and right hip labral tear conditions ꟷ from which he has suffered since April 2020.
3. Dr Nasralla reported in September 2022 that the plaintiff had been doing very hard physical work which had resulted in his injury.
4. The plaintiff tried pain medication, which did not help, and also physiotherapy had a limited effect. He had tried several steroid injections with no effect.
5. At that stage, the plaintiff was awaiting approval for hip surgery and was currently unfit to do physical work. He was unfit for carpentry work or any other physical work in the future because of persistent back injury and hip pain. He was unable to do any work until he recovered from his hip surgery.
6. Dr Nasralla most recently reported in February 2025.
7. The diagnosis was right hip labral tear and L5-S1 central disc bulge with radiculopathy. CT and MRI scans showed right hip labral tear and this finding at L5-S1.
8. Treatment was varied, starting with physiotherapy and hydrotherapy, and then continued with local CT-guided steroid injection.
9. Finally, on 10 September 2024, Mr Fary performed right hip arthroscopy and partial ligament teres debridement and PRP injection.
10. The injuries are consistent with work-related injuries.
11. The prognosis is limited to the recovery and the plaintiff's back injury management. It can be improved with surgical management of the back injury. Also, the plaintiff can be improved by a rehabilitation program. There will also be the need for mental health care and stress management.
12. The plaintiff can be trained for nonphysical work.
13. Dr Nasralla is providing certificates in support of the plaintiff's permanent incapacity payments.

Kate Jones, physiotherapist, Baw Baw Physio & Fitness

1. The plaintiff saw Mr Kong from Baw Baw Physio & Fitness on 16 September 2021, for treatment of lower back pain and bilateral radiculopathy and right hip pain under WorkCover. The plaintiff reported onset of lower back pain in 2019 as well as right hip subluxations.
2. In 2020, the plaintiff reported a further aggravation to his lower back following an incident at work lifting a frame. He ceased work in April 2020.
3. The plaintiff had been receiving physiotherapy infrequently following hip surgery in 2024, with the goal to resume weekly appointments.
4. The plaintiff has chronic lower back pain. A CT scan in 2019 showed L4-5 and L5‑S1 disc bulges and further MRI scans in 2020 and 2021 also showed an L5-S1 disc bulge. A more recent MRI scan in 2024 of the right hip showed extensive labral damage, CAM deformity and gluteus minimus tendinopathy.
5. In her January 2025 report, Ms Jones noted the most recent surgery had improved the plaintiff's hip stability, however, it had not changed his back pain. It may take up to a year to rehabilitate his hip muscles. Given this length in time, she hoped to see a continuing improvement in his hip pain, however, she would highly recommend a review with his pain specialist to advise the best step forward with any medication and procedure recommendations for managing his back pain.
6. In the meantime, she would recommend weekly physiotherapy and reconsider massage therapy and hydrotherapy to optimise recovery and rehabilitation.

Dr Neel Du Toit, sports and interventional pain physician

1. The plaintiff first presented in March 2021 with a history of lower back injury that occurred in 2019 and he had also started to experience right lateral hip and right groin pain.
2. His clinical opinion was that the plaintiff has overwhelming neuropathic back and hip pain. He has specific somatic pain coming from the lumbar spine, specifically the L5-S1 disc and right groin pain, secondary to the right hip joint labral pathology.
3. A lumbar MRI scan in March 2020 showed desiccation at the L5-S1 disc level, where there is a central disc protrusion with possible left S1 nerve root compression. MRI scans of the right hip joint showed mild right hip labral tearing and mild chondral pathology.
4. He noted in his February 2025 report that treatment to date under his care has included an intraarticular right hip injection, a right L5-S1 transforaminal epidural injection and on 30 March 2023, a catheter epidural and adhesiolysis procedure, specifically targeting the right L5 and S1 levels.
5. The plaintiff experienced short-term benefit from the right L5-S1 transforaminal epidural injection. He did not experience long-term benefit from the catheter epidural and adhesiolysis procedure.
6. He last spoke to the plaintiff on 24 January 2024, when the plaintiff reported ongoing right lateral hip and groin pain, and was also concerned about lower back pain. Groin, hip and back pain were interfering with all activities and restricting the plaintiff from attending to work type duties.
7. He had referred the plaintiff to be considered for right hip arthroscopic surgery. In regard to lower back pain, further minimal and basic interventions could be considered, including a repeat catheter epidural and adhesiolysis procedure at the L5-S1 level. More advanced treatments to treat neuropathic pain could include a trial and potential permanent implant of a spinal cord stimulator.[63]
8. If the plaintiff's back pain was unable to be controlled, he may benefit from a surgical option regarding L5-S1 fusion surgery.
9. The prognosis was poor to return to pre-injury duties, based on the longstanding nature of the plaintiff's symptoms and the fact he had not responded to treatment yet.
10. The plaintiff may have the capacity to return to alternative duties in a reduced capacity, where he is not required to push, pull or lift any loads and has the opportunity to break from sitting and standing postures with regular walking intervals.
11. Further, he will require ongoing physical treatment, specifically physiotherapy with a focus on movement and muscle strength, but also measures to counter fear avoidance behaviour.
12. Noting the referral for hip surgery, the plaintiff may require further treatment to control lower back pain.

1. The plaintiff saw Mr Hunt in November 2021. He then presented with increasing pain symptoms in his back, with central back pain with increasing pain around his right hip.
2. Neither party made any reference to Mr Hunt's outdated report in submissions.

1. Mr Timms saw the plaintiff on referral from his GP in December 2021 for lower back pain.
2. He did not think the plaintiff required any neurosurgical operative intervention and agreed with physiotherapy, injections and pain management type course.

1. Following a lumbar CT scan in November 2019, it was reported there was a L4-5 posterior disc bulge flattening the ventral thecal sac and L5-S1 posterior central disc protrusion mildly indenting the thecal sac.
2. The plaintiff had a lumbar MRI scan in September 2020. It was reported there was a small central disc bulge at L5-S1 indenting the thecal sac, but no significant neural compromise was seen.
3. There was a CT scan of the right hip and x-ray extension of the lumbar spine CT scan in November 2021.
4. Following the lumbar CT scan, it was reported there was no acute fracture. There was a shallow central disc protrusion at L4-5. There was no evidence of significant central canal or foraminal narrowing.
5. The x-ray of the lumbar spine was reported to show no spondylolisthesis identified and normal alignment of the sacroiliac joints.
6. There was an MRI scan of the lumbar spine and right hip in November 2021. It was reported there was no interval change to the L5-S1 disc desiccation and central disc protrusion without high-grade neural impingement in the setting of ongoing diffuse pain; a CT-guided epidural at L5-S1 level could be considered. At L5-S1, there was a mild central disc protrusion again noted, without foraminal, subarticular recess or central canal stenosis. This was a change from prior imaging. L1-2 to L4-5 were normal.
7. There was a lumbar MRI scan in January 2024. It was reported spondylitic change predominantly at L5-S1, where there is a posterior central disc bulge indenting on the thecal sac. This appears to have worsened slightly when compared to prior study, where there is now some subarticular recess narrowing, particularly on the left side, with potential irritation of the left S1 nerve root. Mild bilateral foraminal stenoses without definite impingement.

Mr Mohammed Awad, neurosurgeon and spinal surgeon

1. Mr Awad examined the plaintiff in May 2023.
2. The plaintiff then reported constant lower back pain anywhere between 4-8/10 at all times, with limited sitting and walking tolerance. He also described posterior leg pains and sometimes anterior leg pains, worse on the right. He also sometimes got a popping sensation with right hip pain rated 10/10.
3. The diagnosis was aggravation of lumbar spondylosis and right hip pathology.
4. A heavy workplace environment over the years had most likely been a dominant contributing factor to the aggravation of the plaintiff's lumbar spondylosis. It was possible, also, that his spinal pathologies and symptoms had come to accelerate or cause his right hip pathology, but this should be looked at by a hip specialist.
5. In terms of the lumbar spine, the plaintiff's employment history remains a significant contributing factor to his ongoing pain disability and requirement for treatment.
6. In his current state, the plaintiff did not have a work capacity for pre-injury work as a full-time carpenter. When taking into account his age, education, training skills and work experience, as well as the nature and severity of his lumbar spine condition, he did not think the plaintiff was going to have any realistic capacity for any alternative employment into the foreseeable future.
7. He recommended ongoing conservative treatment. In terms of prognosis, the plaintiff was likely to suffer the consequences of this injury now in the form of some degree of pain and disability into the foreseeable future.
8. By way of his back injury, the plaintiff would have restrictions imposed on him now in the form of any heavy lifting, pushing, pulling, bending, twisting, repetitive lumbar spine movement or any prolonged sitting or standing.
9. The plaintiff described the incident as having a significant impact on his lifestyle, with mental health being a major issue. He also described restrictions in playing with his children and difficulties with his intimate and domestic relationship with his wife.

1. Dr Awad saw the plaintiff in March 2025.
2. The plaintiff then described constant lower back pain rated at 4-5/10 that increased to 8/10. He had intermittent right leg pain anteriorly and posteriorly down to his heel and intermittent left leg pain to the back of his knees.
3. His right hip had improved, but with residual symptoms of an ache, and a pain on certain movements. He reported his mood was low.
4. In terms of communication skills, the plaintiff can read and write, speak English fluently and had above average IT skills.
5. The diagnosis was aggravation of previously asymptomatic lumbar spondylosis, ligamentum teres partial tear and labral tear and chronic pain.
6. The plaintiff has no capacity for his pre-injury duties and there are no workplace adjustments that would facilitate a return to work. This was true with the spinal injury alone or his hip alone.
7. In relation to his spine, the plaintiff should be permanently medically restricted from taking any roles that require him to push, pull, lift or carry more than 10 kilograms, prolonged standing or walking, repetitive bending, climbing, work at heights and exposure to whole body vibration for the foreseeable future. This is a permanent, partial incapacity.
8. There was also a permanent partial incapacity in relation to the hip.
9. When taking into account his age, nature of his injuries, ongoing symptoms, level of education and qualifications and occupational history, the plaintiff has no capacity for any physical manual labour roles, whether due to his back or hip alone. This, therefore, excluded him for any roles for which he has a skillset and he has no other capacity for any other roles, given he does not have any transferable skills or qualifications. The nature of his pain is such he is unlikely to be able to work in a consistent and reliable manner.
10. The plaintiff's injuries are consistent with repetitive heavy lifting, pushing and pulling.
11. The prognosis is guarded. The plaintiff would benefit from an assessment from a pain physician in the future to ascertain whether there are any further treatment options.
12. Dr Awad provided a supplementary report in May 2025, having been provided with the February 2025 CoWork vocational assessment and the June 2022 Nabenet assessment.
13. None of the jobs mentioned by Nabenet in June 2022 were suitable - trades sale assistant, virtual assistant, customer service representative, service technician, tools repairs and truckdriver.
14. The CoWork suggestions in February 2025 of prepurchase building inspector, construction estimator, trade counter sales, maintenance planner and ICT technician, were also not suitable.

1. Dr Akil examined the plaintiff in March 2025.
2. The plaintiff continued to have bilateral lower back pain, worse on the right. It radiated down the right leg to the heel and down to the left leg to the back of the knee. It was associated with paraesthesia affecting both lower limbs, but more prominent on the right.
3. The pain was worse on sitting longer than ten minutes, standing longer than five minutes and walking short distances, as well as minor physical activities.
4. The relevant diagnosis was aggravation of lumbar spondylosis affecting the level of L5-S1 and on balance, the plaintiff's work duties were a significant contributing factor to that current condition.
5. The plaintiff's prognosis was guarded.
6. On examining the plaintiff, he noted that the plaintiff's ability to bend or repetitively bend, lift objects heavier than 5 to 10 kilograms, or repetitively lift, push and pull or repetitively push and pull, and prolonged sitting, standing or walking are severely limited and therefore returning to his pre-injury duties is not realistic.
7. The plaintiff struggles with many activities like playing with his children and enjoying sport and playing computer games. He has problems with sleep and housework.
8. The injuries are consistent with the stated cause.
9. He would defer to an experienced occupational physician as to work capacity.
10. The injury to the lower back had substantially stabilised and no significant improvement was to be expected for the foreseeable future.
11. He was unable to answer any questions in relation to the hip injury.
12. Dr Akil provided a supplementary report in May 2025, having been provided with the report of the March 2024 lumbar MRI scan. Based on the outcome of the recent MRI scan, he saw no particular reason to change his earlier opinion, confirming the diagnosis of aggravation of lumbar spondylosis affecting L5-S1.

1. Flexi Personnel provided expected earnings for the plaintiff as a qualified carpenter but for injury. Taking his tax returns and adding minimum wage increases, the current potential capacity without injury to earn was $72,362.17. (Sixty per cent is $43,417/52 = $834 per week).
2. The hourly rate for a domestic carpenter is $42.59, and $59.25 for a commercial carpenter.
3. Current potential earnings for a fully qualified carpenter (inclusive of allowances) working in the domestic industry sector is $93,639 gross per annum. (Sixty per cent is $56,183/52 = $1,080). Working in the commercial sector, this figure is $110,916 per annum.
4. A Level 1 Year 1 employee administrative assistant clerical (virtual remote working from home) $24.87 per hour.
5. A customer service representative under the General Retail Industry Award, working part time, without allowances, $25.65 gross per hour.

Dr Joseph Slesenger, specialist occupational physician

1. Dr Slesenger examined the plaintiff in February 2025.
2. The plaintiff told him that prior to hip surgery in September 2024, he had intermittent severe pain in the right hip. It was prone to giving way. He had difficulty weightbearing on the right side and lying on the right side. Subsequent to that surgery, there had been an improvement in symptoms and the plaintiff advised he was partially recovered.
3. Nevertheless, the plaintiff advised of residual pain deep in the hip with restricted range of movement and he continued to have difficulty weightbearing on the right side, although could stand and walk for about fifteen to twenty minutes. He advised that the pain was less intense and currently at the level of 3-4/10. The pain tended to wake him up at night, particularly when lying on his right side.
4. The plaintiff reported his lower back pain and persistent residual pain in the lumbar spine with radiating pain into both legs on the right side to the level of the heel and on the left to the level of the calf. The pain was dull, as well as sharp in character, and to the level of 7-8/10.
5. Symptoms were worse with activity. He could walk and stand for no more than fifteen to twenty minutes, as well as sit. He had difficulty climbing up and down stairs and walking over uneven ground.
6. The diagnosis was soft tissue injury and aggravation of degenerative disease in the lumbar spine. Chronic lower back pain with right leg radiating features. There was a soft tissue injury of the right hip and a labral tear for which the plaintiff had undergone arthroscopic repair, and there was residual right hip impairment.
7. The plaintiff was likely to suffer residual lumbar spine and right hip symptoms for the foreseeable future, noting the length of his impairment disability, the comprehensive nature of treatment received, and his limited response. He also noted the plaintiff is currently job detached and there is a psychological comorbidity, which was a negative prognosis indicator.
8. Taking the history, on balance, he was satisfied the lumbar spine impairment related to the work injury, namely work exposures performed during the course of his employment; however, he disagreed with the Medical Panel that the right hip was not being work related.
9. In his carpenter role, the plaintiff would be required to squat for long periods, lift heavy weights in excess of 50 kilograms, repetitively bend and twist, climb up and down ladders and manoeuvre over uneven ground, and while he was satisfied the plaintiff's underlying impairment was constitutional, he was also satisfied he suffered an aggravation of the right hip impairment as a result of workplace exposures.
10. He was satisfied the lumbar spine impairment related to manual handling postural demands associated with his pre-injury role.
11. He recommended restrictions in relation to the hip and also the lumbar spine with a push, pull, carry or lift over 10 kilograms on an occasional basis and 5 kilograms on a repetitive basis, and avoiding repetitive bending or twisting, prolonged static postures and exposure to whole body vibration.
12. Whether, due to his right hip or lumbar spine, or both, the plaintiff cannot return to pre-injury duties as the job demands lay outside his capacity.
13. He advised against the plaintiff returning to work as a trades sales assistant as the job demands lay outside capacity limits. He made a similar comment in relation to service technician and truckdriver.
14. He thought the plaintiff could return to work as a virtual assistant or customer service representative, adhering to the restrictions.
15. He made similar comments on work capacity relating to the right hip.
16. The plaintiff should continue to engage with his GP and take prescribed medication and continue with an exercise program, possibly hydrotherapy.
17. He did not anticipate the work-related injury ceasing and anticipated the plaintiff was likely to be left with residual lumbar spine and right hip impairment into the foreseeable future.
18. In a supplementary report dated April 2025, having reviewed Dr Menz' report and clinical records, his opinion remained unchanged.

Dr Anthony Menz, consultant orthopaedic surgeon

1. Dr Menz first saw the plaintiff in May 2020 and re-examined him in February 2025.
2. The defendant did not rely on this report in which Dr Menz concluded the plaintiff had not suffered a work-related injury.
3. The plaintiff, however, relied upon Dr Menz' opinion to a limited extent in so far as it related to capacity. He thought the plaintiff does not appear to have a work capacity at the moment and going into the future, the only work he believed he could undertake was much lighter duties; however, this incapacity for work was not related to his previous job.
4. Dr Menz also noted that the hip surgery in 2024 had been quite successful. It appeared as though the issue of the right hip had been resolved.

1. Nabenet provided a vocational assessment report in May 2022
2. In order of priority, it identified suitable employment options as follows:
   • trade sales assistant ($961 average full time weekly gross)
   • virtual assistant ($1,073)
   • customer service representative ($1,419)
   • service technician/tool repairs ($1,419)
   • truck driver ($1,509).
3. These employment options have been identified for the plaintiff once a current work capacity is indicated.
4. Co Work Pty Ltd provided a vocational assessment and labour market analysis in February 2025.
5. It identified the following as examples of suitable occupations on behalf of the plaintiff:
   • pre-purchase building inspector ($2,154 weekly full time/$56.68 per hour)
   • construction estimator ($1,947 weekly full time/$51.24 per hour)
   • trade counter sales ($1,491 weekly full time/$39.24 per hour)
   • maintenance planner ($2,400 weekly full time/$63.16 per hour)
   • ICT support technician ($1,885 weekly full time/$49.61 per hour).

1. As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[64]

"... the weight to be attached to the plaintiff's account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility."

1. The defendant conceded the plaintiff had made every effort to give a truthful account of matters, best exemplified by his freely making concessions against his interest, so in that sense, no submission was made against his credit.[65]
2. However, it was submitted the plaintiff's evidence was not entirely reliable, in the sense that he exhibited a degree of injury focus and that his complaints of pain to doctors are not supported by the whole of the evidence - high levels of pain to Dr Slesenger was not repeated on affidavit.[66]
3. The Court should prefer the plaintiff's sworn evidence, which was, in a very bland way, that he had constant pain. If he is not prepared to swear up to what he said to doctors, then there is no reason to accept the veracity of the histories. In any event, treatment is very modest and would not support the claimed level of pain reported to Dr Slesenger and Dr Awad.[67]
4. As counsel for the plaintiff submitted, it is not said by anyone that the plaintiff is exaggerating, that he was not genuine.[68]
5. While surveillance was carried out, no film was shown to the Court.
6. In my view, the plaintiff was a very frank witness who presented very well. I have no reason not to accept his back pain is constant, and at times, very significant. Back pain radiates down both legs. These symptoms increase with activity. He was not challenged in this regard. Further, he acknowledged he would have the capacity to work 25 hours a week in a virtual assistant role and he was very candid about his ongoing receipt of income protection payments.

1. The consensus of medical opinion is that the plaintiff suffered an aggravation of lumbar spondylosis, particularly at L5-S1, as a result of the heavy nature of his duties with the employer.
2. Pain and suffering having been conceded, for leave to be granted to the plaintiff to bring proceedings for damages for loss of earning capacity, he must establish a loss of 40 per cent on a permanent basis.
3. It is not in dispute that as the plaintiff was a worker under twenty-six at the time of injury, the assessment of his loss of earning capacity is to be undertaken in accordance with general common law principles and without reference to the formula otherwise required by s325(e) and (f) of the Act.
4. In this regard, this Court has consistently adopted and applied the various principles articulated by his Honour Heydon JA in the State of New South Wales v Moss,[69] a case involving the assessment of loss of earning capacity of a plaintiff injured in a school accident when aged fourteen.
5. His Honour Judge Brookes conveniently summarised these principles in a leave application, Jarvis v Woolworths Limited.[70] They were expressed as follows:
   • evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;[71]
   • it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what [the plaintiff] is likely to earn after it;[72]
   • where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work [the plaintiff] can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity;[73]
   • the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities;[74]
   • the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;[75]
   • the task of the [court] is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.[76]
6. The parties agreed common law principles apply to a worker under twenty-six at the time of injury, and when considering damages under common law principles, the Court is permitted to take into account difficulties an injured worker would have in work.
7. Further, counsel for the defendant conceded if this was an assessment of damages at common law, availability of work - that is, availability to get work after an injury - was a relevant matter when assessing damages.[77]
8. However, consistent with the Court of Appeal decision in State of Victoria v Rattray,[78] the defendant argued capacity is the issue, not the availability of work. It was not conceded availability of work was an admissible consideration.[79]
9. Counsel for the plaintiff relied upon two decisions of this Court - Judge O'Neill, in Berthelot v Fleetweld Pty Ltd[80] and a similar approach by Judge Fraatz in Singh v Victorian WorkCover Authority.[81]
10. Those cases, in particular Judge O'Neill at paragraphs 66 and 67 of Berthelot, took into account the real world in the chances of an injured worker getting further employment.
11. Counsel for the defendant conceded there are a number of County Court decisions, including Jarvis, that run contrary to its submission that capacity, not availability of work, is the relevant consideration.[82]
12. However, it was submitted the Court may not need to decide the legal principle on the facts of this case when the evidence is considered. There is no evidence of the plaintiff having tried to get work and being refused work because of his back injury. Further, the range of jobs submitted to be suitable for the plaintiff were not ones where one would expect the employer to knock back the potential applicant plaintiff on the basis of a back injury and the nature of duties involved.[83]
13. As the statutory framework in s325(e) and (f) of the Act does not apply to a worker under twenty-six at the time of injury and common law principles apply, it is open to the Court when assessing damages for future economic loss to take into account the availability of work to an injured worker - an approach consistently taken by this Court and not considered to date by the Court of Appeal.
14. I intend to follow the same course in this application so far as it is relevant.

1. Careful consideration should be given to the wage figures, because they are relevant, if not determinative.[84]
2. The plaintiff conceded, in cross-examination, he had a good working relationship and was well established in his career with the employer. The only steps he had taken to subcontracting or ultimately having his own business were discussions of this course with his family. Tellingly, there is no evidence it was discussed with the employer. The Court should only put very limited weight on this change in career; it is a possibility, and in no sense a probability, given the state of the evidence and also the absence of any wage figures from someone in that role.[85]
3. A "reasonable, if broad brush approach" to assessing "without injury" earnings is to look at the plaintiff's actual earnings set out in his tax returns. With yearly increases, Flexi Personnel assessed this at an annual figure of $72,362. (Expected earnings for the plaintiff as a qualified carpenter but for injury).[86] Sixty percent of that figure is $43,417 or $834 per week.
4. Counsel then went through the wage rates for a number of jobs said to be suitable for the plaintiff where working full time he would not suffer the requisite loss of 40 per cent, as he would earn sums comparable to his "without injury" earnings.
   • Customer service - $1,419 a week annualised/$73,783 on average (Nabenet). $53,352 without any penalty rates (Flexi)[87]
   • Customer service - General retail industry award $25.65 gross per hour - (Flexi)
   • Virtual assistant role - $1,073 a week annualised at $55,796 (Nabenet)
   • IT consultant role - $1,885 a week, annualised to $98,020 (Co Work).

1. It was not in issue that the plaintiff cannot go back to work as a carpenter. He is ruled out of his pre-injury employment as a carpenter in his chosen trade and also similarly heavy manual work.[88]
2. However, the plaintiff has not suffered a 40 per cent loss, because he is fit for a wide range of sedentary jobs, and his claimed reduction in function is not consistent with his modest treatment. [89]
3. Further, the plaintiff conceded he had a retained capacity for sedentary work up to twenty-five hours per week.[90]
4. The plaintiff is motivated. He has conceded he retains a capacity of some substance, yet he has made no effort at all to exploit this retained capacity, conceding further, that was in large measure due to the insurance payments he was receiving and an ability to live a life that was comparably comfortable to the one he was leading pre-injury.[91]
5. The plaintiff freely conceded he would jump at the opportunity if he were offered a suitable job.[92] It was critical, he conceded, that one of the reasons he was not working was because of the income protection payments.[93]
6. The Court should not accept the plaintiff would prefer to be working because he has admitted a retained capacity, and if he would rather be working, he would have tried to get another job and would not be waiting to see the outcome of this case.[94]
7. In Weldemichael v ID Sales & Repairs Pty Ltd,[95] it was stated:

"The judge then acknowledged that concluding that the applicant had unreasonably failed to engage in rehabilitation programs did not mean that his application for leave to commence a proceeding claiming pecuniary loss damages must fail. Section 134AB(38)(g) required the Court to take into account what the applicant would have been able to earn from personal exertion had he made reasonable attempts at rehabilitation."

1. In effect, the Court must determine what the plaintiff would have been able to earn if he had made a reasonable attempt at rehabilitation or retraining. It should be put to one side he is not currently working and would like to be, and consider what he could earn, having chosen to explore his residual capacity for work.
2. The Court ought consider what fields of employment are closed off to the plaintiff and while it was conceded that some additional weight be given to the fact of the loss of trade, there are a wide range of fields open to him.[96]
3. It was a fair summary that the plaintiff conceded he was fit for a wide range of sedentary roles, at least part time.[97] There are wide fields of work open to him, entry level sedentary work, low skilled medium work and in some aspects of medium skilled sedentary work, such as information technology consultant.

1. The GP simply said the plaintiff could be retrained for non-physical work. That left open a very wide range of employment options. Similarly, Dr Du Toit's view left open a wide range of job options within that very broad rubric.[98]
2. Dr Menz is not totally unhelpful to the defendant's case, because ultimately he said the plaintiff had a capacity for much lighter duties, as was Dr Akil's view. Occupational physician, Dr Awad's history of very high levels of pain ought not be accepted. Her report was overly pessimistic, writing off any retained work capacity, which was entirely unwarranted given the plaintiff's age, transferable skills and his own belief as to his retained capacity.[99]
3. Dr Awad would impose relatively modest restrictions, tellingly omitting a restriction on sitting - restrictions in similar terms to those recommended by Dr Slesenger.[100]
4. Dr Slesenger is "a bit of a mixed bag". There is certainly no suggestion the plaintiff could not work full time. He only commented on the 2022 Nabenet jobs.
5. Neurosurgeon, Dr Awad's opinion is stale and of limited assistance when considering the plaintiff's current capacity. It goes further than the plaintiff, himself, would maintain and it is an opinion that is strictly outside of his area of expertise.[101]
6. Overall, the better view on the medical evidence, focusing on the plaintiff's treaters, is that the plaintiff is fit for a wide range of jobs, which would be incompatible with a finding of a 40 per cent loss of earning capacity, even adopting a broadbrush common law approach.[102]
7. Considering the plaintiff's evidence, and the medical evidence, the plaintiff is fit for a wide range of sedentary options, specifically customer service, which is a very broad and increasingly broad occupation and endeavour. While he had not done customer service, he conceded he could do this job, a view shared by Dr Slesenger and Nabenet.[103]
8. There was also the virtual assistant role, entry level roles in IT with retraining or advanced roles, jobs "embraced" by the plaintiff in cross-examination.[104]
9. It is a question of looking at what areas, what fields of employment are closed off to the plaintiff and what remains open to him. The latter is a wide range of sedentary employment, both entry level and low skilled, and retraining for at least some intermediary skills. What is closed off to him are the pre-injury duties as a carpenter and comparable employment. He retains a capacity to earn income - retains a capacity to work in sedentary work, including entry level low skilled and at least some intermediate skills roles. His loss of capacity is not such that it is 40 per cent.[105]
10. The plaintiff has not suffered a 40 per cent loss of capacity to earn income in a manner productive of financial loss, because he has retained a capacity to earn income and work in a wide range of fields which constitute suitable employment.

1. There was no sound reason, given his background, why the plaintiff would not now be earning $93,000 per annum as a carpenter[106] had he not been injured. His tax returns indicate a steady growth in income and the only halt was when he injured his foot in his second year, 2019.[107]
2. One goes back to Malec v JC Hutton Pty Ltd.[108] In assessing future loss when the law takes into account the future or a hypothetical event, it can only do so in terms of the degree of probability of these events occurring in a range from just above the speculative to just below a certainty. The process of determining possibilities is thus an imprecise and indeterminate one to be carried out within the broad parameters
3. When assessing the possibilities and probabilities in this case, something could be allowed for the fact that the plaintiff was steady and promising and he could have earned more, particularly if he went into his own business.[109]

1. While a number of jobs were suggested, when one looked at the issue in a common assessment, the plaintiff has to find a job in the real world when he has a serious injury to his back.[110]
2. The starting point - constant significant back pain is very relevant to realistic employment capacity.[111] What the plaintiff struggles to do now is also very relevant to realistic employment capacity. While the defendant says the plaintiff still has a capacity, he still has to get up every morning and go to work, and still has to have a good night's sleep.[112]
3. It would be reasonable to say the plaintiff can do some part-time work at an entry level, which the plaintiff conceded, but that did not get him to earning seventy odd thousand a year.[113]
4. If $93,000 was accepted as the plaintiff's "without injury" earning capacity, looking at all the medical opinions, including Dr Menz, those practitioners concluded the plaintiff either had no earning capacity or some, the high point for the defendant being Dr Slesenger. While he made no mention of the hours the plaintiff could now work, he did not state specifically he had a full-time capacity for those jobs.[114]
5. Realistically, there has to be some graduated re-entry into the workforce, given the plaintiff has not worked for five years.[115]
6. The sum of $93,639 is the current average wage in Victoria for a domestic sector carpenter. Sixty per cent of the sum is $56,183.40 - $1,080 per week.
7. A virtual assistant working twenty-five hours a week at $24.87 per hour, would earn $621.75 per week or $32,331.00 annually.
8. A customer service representative working twenty-five hours a week, earning $25.65 an hour, would earn $641.35 per week or $33,345.00 annually.

1. The plaintiff has a lot of big hurdles to a successful return to work. The Court should look at what the doctors say, not what CoWork says about the struggles he will have getting work, which are set out in report after report. The plaintiff was on the nether end of the work availability. There were so many jobs he cannot do, even within the categories that have been suggested such as in customer service, aspects of that role are unsuitable for him.[116]
2. The plaintiff has to find a job, and keep it, and satisfy the person for whom he works that he can do it. In the real world, if he had a very bad back injury or issue, These are real world things, they are not things you put aside, they are possibilities and probabilities.[117]
3. The availability of work to an injured worker under twenty-six was a relevant consideration when determining whether the plaintiff had suffered the requisite loss of 40 per cent earning capacity.
4. The possibility of getting "one of those fancy jobs" is very low given the realities the plaintiff has to confront, mainly because of the extent of his injury, which is getting worse, not getting better.
5. Further, a number of doctors suggest significantly greater treatment, including Dr Du Toit, who talks about a spinal cord stimulator. It is not a happy picture. Further, the plaintiff is currently taking a high level of painkilling medication, albeit not prescription.[118]
6. Common law assessment of damages has always been an assessment of these possibilities and probabilities.[119]
7. In terms of motivation, it was conceded the plaintiff was not going around doorknocking because he has receives $900 insurance payments each week and he acknowledges he does not want to look, but he still wants to work. When it comes to his real capacity, his common law capacity, you still get back to the medicine and the extent of injury, and that is the exercise that ought be undertaken here. The receipt of disability payments is a distraction from the real exercise which is capacity. The flavour of all the medical evidence is that it is going to be hard for the plaintiff to rejoin the workforce in a meaningful way.[120]

1. The task of the [Court] in assessing loss of earning capacity in this case is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.[121]
2. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities.[122]
3. While I am not required to do this analysis on wage figures, these are of assistance when considering the plaintiff's residual earning capacity and the earning capacity he would have had had he not been injured.[123]
4. Doing the best I can on the available evidence, had he not been injured, the plaintiff would be earning around $90,000 working as a domestic carpenter, his preferred sector of carpentry work in the busy Gippsland area. His earnings had increased nearly $10,000 every year from 2017 in the years before he was injured and there was no reason his earnings would not have continued to increase for this young man with a strong work ethic.
5. However, there is little evidence of the plaintiff's intention to work as a subcontractor or the wages he would earn doing so if he chose to take that course.[124]

1. The plaintiff will never return to his chosen trade as a carpenter.
2. While he has not attempted a return to work, one of the reasons he openly stated being his receipt of income protection weekly payments, the issue is his capacity for work.
3. The plaintiff continues to suffer constant lower back pain and radiating leg pain for which he continues to require significant amounts of painkilling medication on an ongoing basis. He needs to lie down during the day to relieve his back pain. As a result, he would be unable to attend work on a reliable, consistent basis as required by any potential employer.
4. Due to his significant pain, the plaintiff is restricted in his ability to bend, twist, lift, stand or sit for prolonged periods, including Dr Slesenger who thought the plaintiff should avoid prolonged static postures. He is unable to drive for long periods. These restrictions have been confirmed by all medical examiners.
5. Having lost his trade as a carpenter - his only job since leaving school - his employment options post injury are very limited. An ability to play computer games does not translate into suitability for an IT role, even with some retraining.[125]
6. I reject the submission that the plaintiff is fit for a wide range of jobs, as the defendant argued.
7. Realistically, in my view, the only jobs potentially suitable for the plaintiff are his suggestion of a virtual assistant role (very light work at home where he can sit and stand at will) and customer service, depending on individual assessment of the role - some jobs of this type being clearly unsuitable if involving bending, lifting and prolonged standing.
8. All medico-legal examiners who have seen the plaintiff at the request of his solicitors consider the plaintiff has no capacity for suitable employment.
9. Dr Menz also thought the plaintiff had no current work capacity and going into the future, the only work the plaintiff could undertake were much lighter duties.
10. Dr Slesenger considered there were the only two suitable jobs from the range of jobs suggested by Nabenet in 2022, with the restrictions he suggested. He advised against the other suggested roles as the job demands lay outside the plaintiff's capacity.
11. However, Dr Slesenger was silent as to the number of hours the plaintiff could work. He made no mention of a graduated return to work which one would expect as the plaintiff has been out of the workforce for five years.
12. The plaintiff has had no experience in these two roles - save for cooking chickens in fast food outlets when he was in Year 12. While he has not applied for these types of jobs and been knocked back because of his spinal condition, he is not a particularly attractive candidate given his ongoing back problems and the likelihood as a result thereof he would need time off work at various times. An absence from the workforce for five years is also a factor acting against the plaintiff's future employability.
13. Working 25 hours per week in these lighter roles - earning about $600 per week - falls far short of what the plaintiff could reasonably be expected to earn, without injury, in his trade as a carpenter.
14. The plaintiff's situation is unlikely to change for the foreseeable future. Despite the "comprehensive" nature of treatment as Dr Slesenger described, there has been no significant improvement. He is reluctant to undergo insertion of a spinal cord stimulator because of his father's lack of success with that procedure. Constant lower back pain, leg pain and resultant restrictions continue.
15. Taking all the evidence into account, assessing the plaintiff's loss of earning capacity in accordance with the principles that apply to the assessment of damages for loss of earning capacity, I am satisfied he has suffered a permanent loss of earning capacity of 40 per cent, having lost the capacity to earn income in a manner productive of that financial loss.
16. Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.

[3] [2005] VSCA 33; (2005) 14 VR 622

[4] [2010] VSCA 69; (2010) 31 VR 1

[5] [2000] NSWCA 133; (2000) 54 NSWLR 536

[12] Second affidavit sworn on 8 May 2025 ("second affidavit")

[14] First affidavit sworn on 17 August 2023 ("first affidavit)

[63] Letter from Dr du Toit to GP dated 24 January 2024

[69] Supra at paragraphs [64], [66], [69], [71], [72], [74] and [87]

[70] [2012] VCC 1329 at paragraph [23]

[75] Moss at paragraphs [72] and [74]

[78] [2006] VSCA 145 ("Rattray")

[80] [2015] VCC 1453 ("Berthelot")

[81] [2024] VCC 727 ("Singh")

[95] [2019] VSCA 68 at paragraph [48]

[99] T81; Section 5 of the Act - "suitable employment"

[101] Giankos v SPC Ardmona Operations Pty Ltd [2011] VSCA 121; (2011) 34 VR 120; at T82

[108] (1990) 169 CLR 630 at 643

[111] T95, Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [48]

[123] Margriplis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15 at paragraph [1]

[124] Margriplis-Hampton v Spendwatt Pty Ltd (ibid) at paragraphs [13] and [16]