Farrelly v Victorian WorkCover Authority [2026] VCC 37

(a) what was the pre-existing condition of the plaintiff's right knee;

(b) what was the probable course of the pre-existing condition of the plaintiff's right knee if the 2019 work incident had not happened;

(c) what injury did the plaintiff suffer to his right knee from the 2019 work incident (and consequentially to his left knee);

(d) what impairment consequences has the plaintiff suffered because of any injury to his right knee (and consequentially to his left knee) from the 2019 work incident in the context:

(i) where the defendant submitted he is not a reliable witness;

(ii) where he had a pre-existing condition in his right knee;

(e) are the impairment consequences of the injury to the right knee from the 2019 work incident (and any consequential injury to the left knee) a permanent serious impairment of a body function.

1. The legal principles relevant to the plaintiff's case are well established:

(a) the plaintiff must prove that he has suffered a permanent serious impairment of a body function caused by injury from a work incident;

(b) as there is a pre-existing condition, being a condition that existed before a work accident, and regardless of whether it was symptomatic or asymptomatic at the time of the accident:

(i) the accident did not cause the pre-existing condition;

(ii) any impairment from the pre-existing condition cannot be attributed to injury from the accident;[3]

(c) where injury from an accident is claimed to have worsened (by aggravating, accelerating, exacerbating or deteriorating) a pre-existing condition there is a need to separate out and identify the injury caused by the work incident from the underlying pre-existing condition and similarly the impairment from the injury caused by the work incident as opposed to the underlying pre-existing condition;[4]

(d) where there is evidence to the effect that the degenerative condition would progress, there is a need to compare a plaintiff's pre-existing condition before the work accident (including the probable course of that condition) and the plaintiff's condition after the accident (including the probable course of that condition);[5]

(e) questions of causation in a serious injury application must be proved on the balance of probabilities, but the question of whether a court is satisfied that the evidence proves causation must take account of the subject matter of the proceeding and the gravity of the matters alleged, which includes that it is a gateway provision determined with more limited evidence than might be adduced at trial;[6]

(f) whether the impairment attributable to the injury from the 2019 work incident constitutes a serious injury is determined by:

(i) making findings about whether the impairment is permanent;

(ii) determining the seriousness of the impairment by applying the two-stage narrative test:

(i) first, assessing whether the nature and symptoms of the work injury and the consequences of it, as found, are subjectively for the plaintiff "serious"; and

(ii) secondly, determining whether the work injury, as assessed, is objectively "serious" when compared with the range or spectrum of comparable cases;[7]

(g) if there is insufficient evidence for the plaintiff to prove, on the balance of probabilities, that he has suffered a permanent serious impairment of a body function from injury caused by the 2019 work incident, he will be unable to satisfy his onus in the application and he must fail.[8]

1. At the start of the hearing, the defendant sought leave to rely on the report of Dr Peter Lugg, consultant orthopaedic surgeon, dated 4 August 2025. The defendant filed no material explaining why the report was served after the time for exchange of medical material. I granted leave with some reluctance, and only because plaintiff's counsel said there was no prejudice from the late service of the report and did not seek an adjournment of the hearing.
2. At the hearing, the plaintiff adopted his affidavits as true and correct. He was cross-examined by the defendant, including being shown video surveillance footage. He was re-examined. Otherwise, no other person gave evidence. Each party tendered documents including medical reports.

1. The defendant raised specific issues with how facts should be found in the case.

1. The defendant submitted there were inconsistencies in the plaintiff's evidence that meant I should find that generally he was not a reliable witness.
2. The first inconsistency raised was that, in his second affidavit, the plaintiff said he had travelled overseas after the 2019 work incident, referring to travel to Malaysia in August and September 2023, Bali in October 2023 and Vietnam in March 2024,[9] but in cross-examination, it emerged from the evidence of the plaintiff that he had travelled to Vietnam not once but twice, once in March 2024 and once in September 2024.[10] He did not claim in his affidavits that his injury prevented him or limited him from travelling overseas, but rather that he had concerns about how his right knee would hold up when travelling and that he was limited in his mobility when travelling. Furthermore, the issue of whether he went to Vietnam once or twice in 2024 was not material to questions about the extent of impairment, as on any view he is capable of travel and at the time of the hearing had travelled and planned to travel further.
3. The second inconsistency raised was that in cross-examination the plaintiff claimed that he did not shop as his wife did the shopping,[11] but video surveillance footage showed him shopping at a supermarket. After viewing the footage, he qualified the absolute nature of his earlier claim that he did not shop by stating that he generally did not shop and the video footage of him shopping was "an out of the box"[12] example of him shopping on Melbourne Cup Day for items for a family function that day.[13]
4. The fact that a witness is wrong about one thing does not automatically mean they are wrong about everything.[14] The significance of inconsistencies to the reliability of a witness needs to be seen in the context of the whole of the evidence.
5. I am satisfied that the plaintiff is generally a reliable witness despite the inconsistencies, noting that these inconsistencies went to peripheral issues rather than the main issues in dispute and that the plaintiff's evidence generally accords with the medical records and reports. In addition, the plaintiff gave evidence in a straight-forward way, and he was prepared to make admissions against interest. For example, he readily accepted that he had a good result from the knee replacement surgery. On the whole of the evidence, including having seen him give evidence, I found him to be a reliable witness and I place weight on his evidence.

No affidavit from member of the plaintiff's family

1. The plaintiff is married and has adult children. He did not file affidavits from his wife or a child. The defendant submitted that this was an omission in the plaintiff's evidence and that one or both of his wife and a child should have made an affidavit about their observations of his impairment from his right knee.[15]
2. The rule in Jones v Dunkel[16] provides that an unexplained failure by a party to call a person as a witness whom the party may be expected to call on a subject may permit an inference to be drawn that the person's evidence would not have assisted the party's case on that subject. The inference can be considered in deciding whether to accept any evidence on that subject or in deciding whether to draw any inference of fact from the evidence about that subject.[17]
3. There are three preconditions to drawing a Jones v Dunkel inference: (1) the absent witness can be regarded as being in a party's camp, in that it would be expected he or she would be called by one party rather than the other; (2) the absent witness would be expected to be able to give evidence about a particular subject; and (3) the person's absence is unexplained.
4. I accept the plaintiff's wife or one of his children could have given evidence about observations of the plaintiff's impairment consequences from the injury to his right knee before and after the 2019 work incident. At the time of hearing, he had lived with his wife for the last 26 years.[18] His children are adults. Furthermore, they would be expected to be called by the plaintiff rather than the defendant; they are in the plaintiff's camp and not the defendant's. The plaintiff put on no evidence for why he did not call his wife or a child.
5. I am satisfied that a Jones v Dunkel inference should be drawn because the plaintiff did not call his wife. I am less persuaded that he should have called one of his adult children in addition.
6. The inference is that the uncalled evidence from his wife would not have assisted his case, rather than the uncalled evidence would have been adverse to his case. In assigning weight to the inference, I have taken consideration of the limited and sometimes uneasy role that affidavits from family members have in serious injury applications so that the expectation of a family member being called is not as strong as it may be in a trial and that a serious injury application is a gateway procedure as opposed to a trial.[19] The inference has not had a major effect on my fact finding because I generally accept the plaintiff's evidence.

1. The defendant submitted that the plaintiff should have filed an up-to-date physiotherapy report from Evans Street Physiotherapy and his failure to do so should lead to an inference that the evidence of the physiotherapist would not have assisted him on the question of whether he now requires ongoing physiotherapy treatment due to his right knee as opposed to his back.[20]
2. I am satisfied that the pre-conditions for drawing a Jones v Dunkel inference are met. However, I consider that an inference has little or no work to do in this case. The plaintiff's evidence was that he had paused seeking physiotherapy for his right knee because of stress issues with work and was planning to resume in the future. The defendant did not challenge him on that evidence. Further, the court books include an outdated report from Evans Street Physiotherapy clinic,[21] and the medical the records of the clinic.[22]

1. The plaintiff was born in Melbourne in 1973. He left school after finishing year 10 and began working as a bricklayer. Before the 2019 work incident, he worked as a labourer and bricklayer, including in the roles of health and safety representative and union representative at his workplaces over the years.

1. On 18 September 2014, the plaintiff sustained injury to his right knee in the course of employment with a company other than MC Labour Services Pty Ltd (the 2014 injury). This injury is not the subject of this application, but it is relevant to the condition of his right knee before the 2019 work incident.
2. The plaintiff had an ultrasound of this right knee on 19 September 2014, which found a "mild-to-moderate amount of echogenic fluid in suprapatellar recess of the joint".[23]
3. On 23 September 2014, the plaintiff had an MRI of his right knee, which reported the following findings and conclusions:

"1. There is mild OA medial compartment with chondrosis of the femoral condyle and tibial plateau and a small amount of bone marrow oedema. > > 2. Intraarticular cystic structure most likely parameniscal cyst related to the anterior crus medial meniscus but no discrete meniscal tear has been identified. > > 3. Mild chondromalacia patellae."[24]

4. The plaintiff was referred to Mr Craig Mills, orthopaedic surgeon.
5. On 30 October 2014, Mr Mills performed an arthroscopic chondroplasty, debridement of the cyst and drilling of the femoral condyle of the plaintiff's right knee.[25] Following this surgery, the plaintiff developed an infection, and on 13 November 2014 underwent an arthroscopic biopsy, synovectomy and lavage.[26] Following these surgical procedures, he received physiotherapy treatment.[27]
6. Mr Mills opined that on 17 November 2014 the plaintiff would require two weeks of rest, physiotherapy for eight weeks, and 26 weeks of gym and swim program. He expected that the plaintiff would need light duties for about eight weeks, with no kneeling, squatting, minimal steps and stairs and light carrying and then return to pre-injury duties.[28] Mr Mills certified the plaintiff as fit for normal duties from 14 January 2015.[29]
7. After the surgery for the 2014 injury, the plaintiff returned to work. He initially returned on light duties, and he shortly returned to pre-injury duties[30] He was able to perform his normal duties as a labourer without any ongoing restrictions.[31]
8. In October 2018, he commenced working with MC Labour Services Pty Ltd as a labourer, employed under a "labour hire-type arrangement".[32] He was doing this work until the 2019 work incident.
9. In March 2019, he cut his right knee requiring stiches.[33] His general practitioner notes record attendances for wound treatment and removal of stiches. Significantly, there was no record of any complaint of general pain or any limitation with his right knee.[34]
10. The plaintiff gave evidence that in the period up to the 2019 work incident he could do everything he could do prior to the 2014 injury.[35] He said he was "able to walk, run and jump with no pain or restriction",[36] and he was "able to go back to normal activities, including acting as a runner and doing first aid for [his] son's football team".[37]
11. The plaintiff was cross-examined about his right knee symptoms following the 2014 injury but before the 2019 work incident. The plaintiff said about this period:

(a) he had no symptoms,[38] returned to normal duties, and was living a normal life;[39]

(b) he did not recollect Mr Mills mentioning anything about knee replacements or being told anything about how his knee would likely progress around the time of the 2014 surgeries;[40] and

(c) he could walk[41] and he had no limitations or restrictions on bending, lifting, pushing or twisting in the course of his work;[42] home maintenance such as bricklaying or removing an old air-conditioning unit;[43] running, carrying stretchers or performing first aid while assisting at his son's football training;[44] walking on rough or uneven ground;[45] driving;[46] or getting in and out of cars.[47]

1. I accept the plaintiff's evidence about the condition on his right knee before the 2019 work incident.
2. I find that before the 2019 work incident the plaintiff's right knee did not cause him any symptoms, and he was able to perform strenuous and demanding physical tasks without limitation in his right knee. As I will discuss later in considering the medical material, while his right knee was asymptomatic there were degenerative changes in it.

1. On 2 October 2019, while assisting another worker to carry an empty double wooden pallet weighing about 40 kilograms, the plaintiff tripped on an exposed thread in a concrete slab. He fell, twisting his right knee and striking his knee on the pallet.[48] He had severe pain in his right knee and limits on its use. He consulted his general practitioner on the same day.[49]

1. On 3 October 2019 the plaintiff had an x-ray of his right knee that that showed a joint effusion but identified no intraarticular loose body fracture or degenerative changes.[50] His general practitioner prescribed him Celebrex medication.[51]
2. Soon after he had an ultrasound that showed a moderate suprapatellar joint effusion, but no prepatellar or deep infrapatellar bursitis and no abnormality at the medial or lateral joint lines. The following conclusion was drawn:

"Conclusion: Joint effusion. The extensor mechanism and collateral ligaments are intact."[52]

3. On 8 November 2019, he started physiotherapy for his right knee at Evans Street Physiotherapy.[53]
4. On 11 October 2019, the plaintiff had an MRI of his right knee, with the report stating:

"Advanced degenerative change of the medial compartment as described and moderate chondromalacia patella. > > Intrasubstance mucoid degeneration of the medial meniscus and sprain of its inner root attachment. > > Partial thickness insertional fibre tear of the anterior cruciate ligament with associated multiloculated small ganglion cyst formation which lies at the anterior central knee joint."[54]

5. On 11 November 2019, the plaintiff first attended Mr Matt Barnes, orthopaedic surgeon, for assessment.[55] Mr Barnes recorded that the plaintiff was having constant episodes of his right knee giving way, especially on stairs, and he considered based on the MRI that it was likely that the plaintiff had a high-grade partial tear of the right ACL with bony oedema, a probable tear of the medial meniscus and some pre-existing degenerative changes involving mainly the medial compartment. He planned an arthroscope and thought it likely an ACL reconstruction was needed.[56]

1. On 16 January 2020, Mr Barnes performed on the plaintiff a right knee ACL reconstruction.[57] His operation report recorded a complete rupture of the ACL, the medial and lateral meniscus as intact and chondral damage with grade 3 osteoarthritis in the medical femoral compartment.[58]
2. In early-2020, most likely in March, the plaintiff commenced a new job as a union organiser for the CFMEU.[59] He had worked for over 30 years in construction, and his plan had always been to accept such a role if it became available.[60] He has earnt more as an organiser than a labourer. It is a job he loves, and he was working as an organiser at the time of the hearing.[61]
3. In the period after the ACL reconstruction, the plaintiff continued to have problems with his right knee including pain, stiffness and restrictions. This is evident from the ongoing medical treatment he had for his right knee.
4. On 28 January 2021, he underwent an MRI of his right knee, and the radiologist report stated:

"Moderate sized area of grade 3 >50% cartilage thinning overlying the central weight bearing portion of the medial femoral condyle with underlying subchondral bone stress and a small area of subchondral insufficiency fracturing. Further areas of >60% depth cartilage ulceration are also present involving the medial femoral condyle. A moderate sized area of near full thickness cartilage loss is also present over the anterior aspect of the medial tibial plateau with underlying subchondral bone stress. No medial meniscal tear however, although an old posteromedial corner meniscocapsular reflection sprain Injury is suspected. > > Partially discold lateral meniscus without tear. Early chondropathy within the lateral compartment of the knee. > > Anterior cruciate ligament graft demonstrates redundancy of its fibres, particularly the anterior component of the graft distally. A small amount of anterior arthrofibrotic thickening is noted adjacent to the redundant graft fibres."[62]

5. He underwent ultrasound-guided injections to his right knee on three occasions, being 12 April 2021, 26 April 2021, and 11 May 2021.[63]
6. By July 2021, Mr Barnes recorded him as having an ache in his right knee and struggling to walk on uneven grounds.
7. In about July 2021, he had a hyaluronic injection to his right knee.[64]
8. He said, and I accept, that he suffered pain in his left knee, which he attributed to his altered gait because of the problems in his right knee.[65] It is likely that the pain in his left knee developed in 2021. Further, the plaintiff said that on 19 May 2022 his right knee gave way while he was in a change room, causing injury and pain to his left knee and a toe on his left foot.[66]
9. On 24 October 2022, Mr Barnes performed an arthroscopy and debridement of the medial meniscus,[67] as well as cooled radiofrequency treatment, of the plaintiff's left knee.[68]

1. The plaintiff underwent a right total knee replacement on 8 March 2023, and a left knee arthroscopy and medial meniscus debridement on 8 May 2023, both performed by Mr Barnes.
2. On 3 April 2024, the plaintiff submitted an impairment benefits claim for bilateral knee injuries, which the workers compensation insurer accepted on 17 July 2024.[69]

Condition of the right knee after the replacement

1. The plaintiff had a good recovery from the right knee replacement.[70]
2. By July 2024, he felt that the functioning of his right knee was better than it had been before the right knee replacement.[71] An example he provided was that while before the right knee replacement he would go to sleep with pain his right knee, that was no longer the case at least in July 2024.[72]
3. The plaintiff in his first affidavit stated the following about his impairment consequences from his right knee as at 12 August 2024:

"I struggle to get in and out of my car, or to stand from a seated position, without suffering pain in my right knee. My knee now feels weak, and I have lost flexibility in my leg due to the replacement. > > I continue to work as an Union Organiser with the CFMEU. I travel throughout Victoria to attend sites, spending a lot of time away from home. While I do drive for extended periods, I tend to avoid driving for more than two hours or so at any one time, as my knee tends to become painful and stiff. > > While I am away from home a lot due to my current work demands, when I am at home I do try my best to help my wife with the household duties. I struggle to do anything that requires me to push or pull such as vacuuming or mowing the lawn and I struggle with tasks that require kneeling or bending, such as cleaning the shower or doing the gardening, and I avoid anything that might require me to get up on a ladder. I rely on outside help for the gardening at home, which is funded by WorkCover. > > My wife and I used to enjoy going out dancing together. We still go out for dinner or a drink, but I am unable to dance now, due to my right knee pain and stiffness. My knee pain and stiffness prevents me from doing anything that requires flexibility or quick movement in my right leg, and I am unable to run or jog. > > While Mr Barnes managed to postpone the knee replacement surgery for as long as possible, I am still now faced with the prospect of requiring a further knee replacement in 10 or 15 years. As a man who was always active, strong and physically capable, the knee replacement procedure has had a dramatic effect on my confidence, and I am always worried about reinjuring my knee."[73]

4. The plaintiff in his second affidavit stated the following about his impairment consequences from his right knee as at 9 July 2025:

"I continue to have occasional pain and regular discomfort and soreness in the inside are of my right knee. I am cautious when I walk on uneven surfaces; on stairs; or when I have to twist or turn with my right leg. I am limited in how deep I can bend or kneel with my right leg. > > ... > > I struggle to run now, as I have lost strength and flexibility in my right leg, and my knee no longer feels as stable as it did before the injury on 2 October 2019. My right knee and calf feel constantly tight. Getting in and out of a car can be difficult for me now, due to the tightness in my knee, and I suffer pain when doing so. > > My son now plays for Braybrook Football Club. As I am no longer able to run, bend, kneel or squat like I used to, I no longer do the running or first aid. This was something I loved doing before my injury; I am a very proud dad, and I loved being involved with my son's football. My inability to be so involved, and even to kick the football with him, is a big loss for me. > > Prior to my injury, I travelled overseas regularly. I travelled to New Caledonia in 2009; to Paris in 2013; to England, Ireland and Spain in 2016'; to Amsterdam and Rome in 2018; and to Ireland in June 2019, just prior to my right knee injury. I did not travel overseas for a number of years after my injury, but I eventually travelled to Malaysia in August and September 2023; to Bali in October 2023; and to Vietnam in March 2024. I do not find that I am as mobile or active on holidays how as I once was, and I have to limit the amount of walking I do, and the types of activities I sign up for. I am planning on traveling again in August and September this year, and I am concerned about how my right knee will hold up."[74]

5. The plaintiff adopted his affidavits at the hearing. He was cross examined and the main points to arise from the cross-examination were the following:[75]

(a) he intended to take up the role as a CFMEU organiser regardless of whether he was injured;

(b) he was fully fit for his duties as a CFMEU organiser and he has coped well with the role;

(c) he had a good recovery from his right knee replacement;

(d) he has constant pain in his right knee that he rated as 1 to 2 out of 10. It flared up at times. He took pain relief (non-prescription) about once a fortnight.

(e) he can drive a car but he stops after about 1 ½ hours to stretch his right knee;

(f) he has had chronic back pain including being referred to a neurosurgeon in about 2006 about it. He said that he no longer has chronic back pain though he can have periods of back pain;

(g) he was taken to physiotherapy notes from 2024 that he agreed showed he had sought treatment for back pain and stiffness. He said that he did not have back pain at the time of the hearing. He agreed that putting on shoes and socks, getting in and out of cars and prolonged sitting can aggravate his back pain;

(h) he agreed that he used to go to sleep with pain in his right knee but now he does not;

(i) he was taken to accounts in medical records and reports and generally agreed that they recorded accurately how he was at the time;

(j) because of his right knee he has difficultly changing, putting on shoes, showering, kneeling, getting out of cars and squatting;

(k) he claimed he did not shop, but on being shown footage of him shopping in a supermarket he said that he did shop but rarely;

(l) he agreed the video footage showed him bending, getting into a car using the steering wheel and with an altered gait;

(m) he said that because of his right knee he has difficultly standing and walking for extended periods;

(n) he attends most of his son's football games;

(o) he attends a gym about 2 to 3 times a week mainly to do cardio work;

(p) he was taken to his account of his travels, during which it emerged that he had been Vietnam twice and not once as he had claimed in his affidavit. He acknowledged this was a mistake in his affidavit. He said that his right knee affected his activities when travelling such as prolonged walking. He has plans for further travel.

1. The plaintiff was re-examined and the following main points arose:

(a) His right knee affects his travel because of stiffness and activities requiring twisting, kneeling and bending. He said he had to be mindful of it;

(b) he said if he walked 1 ½ hours he would be sore for the rest of the day and the next day;

(c) he said he goes to the gym because he has put on weight because of his right knee injury and he wants to lose weight and strengthen his leg muscles;

(d) he planned to re-engage with physiotherapy for his right knee in the future;

(e) he does not do renovations, home maintenance, mowing the lawns and painting because of his right knee; and

(f) he said that his right knee pain flares up about once a month or every two months and when this happens he suffers pain that he rates as 4 to 7 out of 10.

1. The parties relied on many medical reports. I have sought to incorporate the reports and records of the treating doctors in my finding of facts so far. I will, therefore, mainly refer to the reports of the medicolegal experts.

1. The plaintiff attended Mr McLean, orthopaedic surgeon, at his solicitors' request. He examined the plaintiff on 30 April 2025 and prepared a report on that day, as well as a supplementary report dated 4 July 2025.
2. Mr McLean recorded the plaintiff as saying that following his recovery from the two surgeries in 2014 and his subsequent return to work:

"...there were no issues and the knee was all fine and good as gold. States he was able to jog and run and was not aware of any noises or swelling to that right knee."[76]

3. Mr McLean recorded the plaintiff as saying that the 2014 surgery "resulted in having excellent function and no ongoing symptoms"[77] in the right knee, and that any underlying degenerative changes were "asymptomatic prior to [the 2019 work incident]."[78]
4. In his supplementary report, Mr McLean noted that the plaintiff may have had "underlying, pre-existing degenerative changes in the knee"[79] but determined that these were asymptomatic prior to the 2019 work incident on the basis of the plaintiff's "honesty and recollection".[80] He said that after being rendered symptomatic by the 2019 work incident, the right knee required "appropriate treatment at an earlier time than would otherwise have been anticipated."[81]
5. Mr McLean was asked whether the plaintiff would have required the surgeries but for the 2019 work incident. He opined:

"Despite the ligament reconstructive surgery, there is the continuing degenerative change occurring at a faster rate than would otherwise be anticipated. That rate of degeneration is always multifactorial and variable, but definitely with an acceleration and increasing pain, that then leads to total knee replacement surgery at the earlier time frame. > > Again based on the honesty and recollection of Mr Patrick Farrelly; it is unlikely that he would have required any ACL reconstructive surgery to his right knee were it not for the stated work injury of October 2019. Relative to total knee replacement surgery then having suffered that cruciate ligament injury along with a further internal derangement of meniscal and chondral origin and the acceleration then of the degenerative changes; this then precipitating the requirement of a knee replacement surgery that was undertaken in March of 2023."[82]

1. Associate Professor of Orthopaedics Bruce Love examined the plaintiff on 5 July 2023 on behalf of the workers' compensation insurer, and prepared a report dated 18 July 2023.
2. Associate Professor Love's report was on whether the plaintiff's left knee condition was related to his right knee injury from the 2019 work incident. He took a history that the effects of the 2014 injury "had fully resolved".[83] He referred to the plaintiff as having degenerative changes in his right knee caused at least in part by the 2014 injury, and that the condition of his right knee as at 2023 was a deterioration of a pre-existing condition.

1. The plaintiff attended Dr Yi-Lee Phang, occupational physician, on 9 July 2024 for an impairment assessment following a referral from the workers compensation insurer. Dr Phang authored a report dated 14 July 2024.
2. Dr Phang recorded that despite the surgeries in 2014, the plaintiff was functioning normally prior to the 2019 work incident.[84] He assessed the impairment of the right knee and considered whether to apportion the impairment between a pre-existing condition and injury from the 2019 work incident but decided not to because the x-ray taken on 3 October 2009 had not shown degenerative changes. He failed to refer to the MRIs on 23 September 2014 and 11 October 2019 that did show degenerative changes. I place no weight on his opinion on apportionment for this reason.

1. Dr Anthony Kam, radiologist, prepared a report dated 10 June 2025 at the defendant's solicitors' request.
2. Dr Kam did not examine the plaintiff. His report was based on a review of documentation, including radiology reports and clinical extracts. He did not view the actual radiology images, but the reports prepared by other radiologist who had viewed the radiological images.
3. After noting the 2014 surgeries, Dr Kam recorded that the plaintiff "experiences occasional knee pain post op"[85] and that "post operative recovery was reasonable, with occasion (sic) flare up of knee pain".[86]
4. Dr Kam reviewed radiological reports and set out his understanding of those reports. He described the plaintiff's knee condition before the 2019 work incident as follows:

"I believe the cartilage loss at the knee joint, degenerative signal change at the medial meniscus and cyst within the knee joint are pre-existing conditions that pre-date the 2 October 2019 injury. The conditions are part of the workers longstanding degenerative knee joint osteoarthritis."[87]

5. He opined that the partial tearing of the ACL shown on the MRI taken on 11 October 2019 most likely resulted from the incident on 2 October 2019, but further stated:

"...although the partial tearing may also occur as part of the worker's pre-existing knee joint degenerative condition."[88]

6. There are several comments to make about Dr Kam's report and his opinion:
7. First, Dr Kam has specialist knowledge from his training, study and experience as a radiologist and therefore any opinion of his wholly or substantially based on this specialist knowledge is admissible.[89] A radiologist would be expected to have specialist knowledge in reviewing radiological images, interpreting them and providing written reports setting out his or her interpretation.
8. Secondly, Dr Kam's opinion is based on reviewing reports written by other radiologists who saw and interpreted the radiological images, rather than him having viewed and interpreted the radiological images himself. It is difficult see how his expertise were engaged by reading those reports and making statements about those reports particularly where his statements about the reports are different than those made by the radiologist who saw the images and prepared the reports.
9. Thirdly, Dr Kam limited his opinion to the condition of the plaintiff's right knee before the work incident on 2 October 2019. Although he had radiological reports about how the plaintiff's right knee was after October 2019, Dr Kam did not express an opinion about whether and what progression there was of any pre-existing condition in his right knee or the condition of his right knee after the replacement surgery.

1. Dr Lugg prepared a report dated 4 August 2025 at the request of the defendant. He did not examine the plaintiff, and his opinion was based on a review of documents provided to him by the defendant.
2. Dr Lugg stated that between 2015 and mid-2019, the plaintiff's right knee appeared to be "in reasonable shape"[90] and there did not appear to be any presentations or complaints of right knee pain during this period.[91] He described the plaintiff's right knee as having gone into a "quiescent stage"[92] between 2015 and 2019, which he attributed to the surgical repair in 2014.
3. When asked about the likely condition of the plaintiff's right knee prior to the 2019 work incident, Dr Lugg answered:

"The condition of the right knee prior to the incident in 02.10.2019 was a knee, that undoubtedly had medial compartment osteoarthritis of moderate degree, but was apparently asymptomatic."[93]

4. Dr Lugg was "positive that [the plaintiff] had pre-existing degenerative change in the right knee prior to [the 2019 work incident]",[94] and stated:

"There is no doubt that medial compartment osteoarthritis, and patellofemoral osteoarthritis to a lesser degree, was present prior to the incident of 02.10.2019. > > Indeed, it was present in 2014, although less severe."[95]

5. Dr Lugg said that the radiology showed "medial compartment and patellofemoral degenerative change, gradually increasing in severity from 2014 to 2023".[96] Notably, his comment did not address the relevant inquiry about what changes had occurred before the 2019 work incident and what changes occurred after it.
6. Dr Lugg opined the progression of the right knee condition began with the plaintiff's "pre-existing constitutional tendency to developing medial compartment osteoarthritis".[97] The plaintiff then suffered the 2014 injury, which Dr Lugg described the significance of as follows:

"However, this right knee suffers an injury in which he is demonstrated to have medial compartment chondral damage, which was treated arthroscopically, with multiple drilling. There may have been some meniscal loss at the same time, and this incident, with the drilling seeming to be temporarily successful, but the cartilage that has formed there is generally of poor quality, even if it is successful and will only give temporary relief. > > This probably explains why he had 4 to 5 years of relative low symptoms, or no symptoms. > > He then has another injury, the one of 02.10.2019, and his pre-existing degenerative change become symptomatic again, and there is a downhill spiral to a total knee replacement relatively quickly after that."[98]

7. He summarised his opinion regarding the impact of each of the 2014 and 2019 injuries as follows:

"I would consider that [the plaintiff] has constitutional basis for his arthritis, with two episodes the [sic] caused an aggravation of his symptoms, the need for treatment, the first of which was successful for a few years, but the second was not and he had to have a total knee replacement."[99]

8. Dr Lugg was asked what course the plaintiff's knee would have likely taken but for the 2019 work incident, and said:

"In the absence of the injury on 02.10.2019, I believe Mr Farrelly would not be having a knee replacement in 2023, unless another similar incident occurred. > > I believe the need for a knee replacement has been put forward by approximately 5 to 10 years. More likely the five-year end of that the range, because he had very severe degenerative change at the time of the 2019 injury."[100]

9. He stated that the 2019 work incident contributed to the plaintiff's pre-existing condition by rendering it symptomatic again, and only materially contributed to the plaintiff's current condition by initiating a chain of events "that led to him having a knee replacement earlier than [Dr Lugg believed] he would have otherwise had."[101]
10. There are several issues with Dr Lugg's opinion.
11. First, Dr Lugg did not appear to review any radiology or the reports of the radiology of the plaintiff's right knee taken before the 2019 work incident. He listed in his report the radiological materials he had been provided with, which all post-date the 2019 work incident. He did not list the right knee ultrasound taken on 19 September 2014 or the right knee MRI dated 23 September 2014. Nor did he refer to radiology taken before the 2019 work incident in the body of the report. I infer that he did not review the reports of right knee ultrasound taken on 19 September 2014 and the right knee MRI dated 23 September 2014 in expressing his opinion.
12. Secondly, Dr Lugg made mistakes in his report.
13. He based his opinion about the condition of the plaintiff's right knee in 2014 on his read of Mr Mills' handwritten notes of the right knee arthroscopy on 30 October 2014 and a letter Mr Mills sent to the plaintiff's general practitioner on 6 November 2014.
14. Dr Lugg said that Mr Mills described in his note degenerative changes in the patella and grade 2 to 3 chondral damage on the weightbearing surface of the medical femoral condyle.[102] The note was in evidence.[103] It is handwritten and it is not evident, at least to me, that the note contains the description Dr Lugg claimed. I am willing to accept it does. Dr Lugg described the note as significant but does not say why it was significant. Obviously, the note is consistent with degenerative changes in the knee, but if there was a greater significance it is not clear to the Court from his report.
15. More significantly, Dr Lugg says that that Mr Mills' letter to the plaintiff's general practitioner dated 6 November 2014 stated: "the question remains whether he will be fit for the rigours of construction labouring" (my emphasis).[104] He said that this statement showed that Mr Mills "felt that this degree of degenerative change was serious, had potential repercussions, and this is back in 2014".[105]
16. Dr Lugg's quote from the Mr Mills' letter is wrong. The letter was in evidence.[106] Mr Mills in fact said in the letter "[t]he question remains when will he be fit for the rigours of construction labouring" (my emphasis).[107] Dr Lugg misquoted Mr Mills by substituting the word "whether" for "when", radically changing the meaning of what Mr Mills stated: a question of when the plaintiff could return to his work in the construction industry was changed into the more dire question of whether he could.
17. Dr Lugg's misquoting of Mr Mills and his interpretation of the misquote is contrary to what Mr Mills in fact thought. Dr Lugg appears to have been provided with, but did not refer to, a medical questionnaire that Mr Mills completed on 17 November 2014.[108] Mr Mills stated in the questionnaire that as at 17 November 2014 the plaintiff should perform light duties and be able to return to pre-injury duties within eight to 12 weeks, noting that recovery is variable and may be sooner. Mr Mills provided the plaintiff with certificates of capacity including certifying him, based on an examination on 7 January 2015, as being fit for normal duties from 14 January 2015.[109] Rather than Mr Mills having doubts about whether the plaintiff could return to work in the construction industry, he in fact thought the plaintiff could and put in place a timeline for it to occur. The plaintiff did return to work in the construction industry up to the 2019 work incident.
18. Thirdly, Dr Lugg did not examine the plaintiff and take his history of the condition of his right knee. Instead, he inferred from the material what the plaintiff experienced at times. As a result, he has made presumptions and formed beliefs about what the plaintiff may think. Normally an expert seeking to express an opinion about the progression of a condition over a period would be aided by taking a history from the patient (as well other materials).
19. Fourthly, and no doubt related to the third point, his opinion was in part based on a history that is not correct. An example of this is his consideration of whether the injury to the plaintiff's left knee was consequential to the injury to his right knee. Dr Lugg said "I note the proposition by December 2021 that his left knee was becoming painful, because of the altered gait, and the reliance he had to place on his left knee, due to his right knee problems."[110] He had the plaintiff's affidavit, in which he described an incident where his right knee gave way on 19 May 2022 causing injury to his left knee; it also referred to a change in gait caused by his right knee injury causing pain in the left knee.[111] He had the report of Associate Professor Bruce Love, which the defendant had commissioned, which attributed the left knee injury to the 19 May 2022 incident and, therefore, the injury to the right knee.[112] Why Dr Lugg would seem to adopt part of the plaintiff's history from his affidavit but ignore or fail to refer to another part of that history is inexplicable and troubling, as his apparent lack of consideration of other relevant material.
20. Finally, Dr Lugg's opinion about the severity of the plaintiff's degenerative condition of his right knee before the 2019 work incident is difficult to understand. When asked directly, he said there was "medial compartment osteoarthritis of moderate degree"[113] in the plaintiff's right knee, but later in his report in the context of discussing how the pre-existing condition may have progressed, he justified his opinion by describing the same condition as "very severe degenerative change".[114] There is no rational explanation for why a condition he described as "moderate" can with the turn of a page become "very severe".
21. I will return to Dr Lugg's opinion in the analysis section but as should be clear I consider it should be given little weight.

1. The plaintiff attended Mr Mills for treatment of his 2014 injury, and Mr Mills performed the plaintiff's arthroscopic chondroplasty and drilling of the femoral condyle on 30 October 2014, and arthroscopic biopsy, synovectomy and lavage on 13 November 2014. Extracts of Mr Mills' clinical records and correspondence were tendered.
2. I have set out already Mr Mills' letters around the 2014 surgery.

1. The plaintiff first attended Mr Barnes on 11 November 2019 for assessment. Mr Barnes performed the plaintiff's right knee ACL reconstruction on 16 January 2020, right total knee replacement on 8 March 2023, and left knee arthroscopy and medial meniscus debridement on 8 May 2023. Several of Mr Barnes' letters and reports were tendered in these proceedings.
2. After the plaintiff attended Mr Barnes on 11 November 2019, Mr Barnes noted some "pre-existing degenerative change involving mainly the medial compartment"[115] on the plaintiff's MRI scans.

What was the pre-existing condition of the plaintiff's right knee?

1. The parties agreed that the plaintiff had a degenerative condition of his right knee before the 2019 work incident but disagreed about the nature and extent of it and how it would have progressed in the future.
2. I find that before the 2019 work incident, the plaintiff had a degenerative condition of his right knee, likely mild to moderate osteoarthritis in the medial compartment and patella chondromalacia, because of the following:

(a) the MRI of the plaintiff's right knee performed on 23 September 2014 reported, amongst other things, mild osteoarthritis of the medial compartment with mild patella chondromalacia;

(b) the MRI of the plaintiff's right knee performed on 11 October 2019, after the 2019 work incident, reported changes in the medial compartment consistent with osteoarthritis and moderate patella chondromalacia;

(c) Mr Mills in performing the right knee ACL reconstruction on 16 January 2020, about three months after the 2019 work incident, observed that the plaintiff had grade 3 osteoarthritis of medial formal compartment;

(d) I do not accept Dr Lugg's opinion that the degenerative changes in the plaintiff's right knee before the 2019 work incident were "very severe"[116]. As discussed, he did not view or refer to the radiology in 2014 or the reports of that radiology, and he mistakenly quoted Mr Mills and in so doing mistakenly assumed that the condition of the plaintiff's knee in 2014 was more severe than it was; and

(e) I do not accept Dr Kam's opinion that the plaintiff had a cyst in his right knee shortly before the 2019 work incident. The report of the MRI on 23 September 2014 said there was a "most likely parameniscal cyst related to the anterior crus medial meniscus".[117] Mr Mills debrided the cyst on 30 October 2014.[118] The radiologist who reported on the MRI on 11 October 2019 described a tear of the ACL with an "associated multiloculated ganglion type cyst",[119] which is consistent with the cyst being causally associated with the tear. Dr Kam did not view the imaging of the MRI on 11 October 2019, but without any adequate explanation seems to have rejected the radiologist's opinion that the cyst was causally associated with the tear. Further, I note that neither Mr McLean nor Dr Lugg opined that there was a cyst immediately before the 2019 work incident.

1. I find that the plaintiff's degenerative condition of his right knee was asymptomatic before the 2019 work incident based on the plaintiff's evidence.

What was the probable course of the pre-existing condition?

1. In R J Gilbertson Pty Ltd v Skorsis,[120] Wineke P stated that the party "who was contending that the aggravation was not a 'serious injury', bore the evidential burden of showing what the probable course of the pre-existing condition would be".[121] In Petkovski v Galletti the Court of Appeal held that a court cannot infer, in the absence of evidence, that a degenerative condition will progress or that the symptoms from it will worsen.[122]
2. There was a contest between the opinions of Mr McLean and Dr Lugg regarding the probable course of the pre-existing condition. As stated, I prefer the opinion of Mr McLean because of the flaws in Dr Lugg's report, which I have discussed above. I find that:

(a) osteoarthritis as a degenerative condition is progressive. If not for the 2019 work incident, the rate of progression for the plaintiff was likely to have been slow given that the plaintiff had excellent function in his right knee and had been asymptomatic prior to the 2019 work incident, and the lack of marked changes between the radiology taken in 2014 and the radiology taken soon after the 2019 work incident;

(b) however, the degeneration was likely to have progressed to the extent of the plaintiff requiring a knee replacement at some time in the future. Mr McLean accepted that the injury from the 2019 work incident led to a need for treatment including the knee replacement "at an earlier time frame".[123] I infer from this, and find, that if the 2019 work incident had not occurred, the plaintiff would likely have had problems with the right knee eventuating in a knee replacement. However, Mr McLean does not give a numerical estimate of when it would likely have happened but for the 2019 work incident;

(c) Dr Lugg opined, based on his characterisation of the degenerative condition of the right knee as very severe, that a knee replacement would likely have occurred within 5 to 10 years and probably 5 years if the 2019 work incident had not happened. I consider Dr Lugg's opinion on the time frame as overly pessimistic as I do not accept this characterisation of the degenerative condition as very severe before the 2019 work incident for the reasons already given; and

(d) noting the evidentiary onus on the defendant on this issue, I cannot put an exact time frame for when the condition of the plaintiff's right knee would likely have deteriorated to the extent that he needed a knee replacement but for the 2019 work incident. Consistent with my rejection of Dr Lugg's opinion on the time frame as being overly pessimistic, the best that I can say from the evidence is that it was likely to be a more optimistic time frame than 5 to 10 years. Regardless, it would have been a considerable time rather than 5 to 10 years.

What injury did the plaintiff suffer from the 2019 work incident?

1. The parties agreed that the plaintiff had suffered an injury from the 2019 work incident but disagreed about the nature and extent of it.
2. I find that the 2019 work incident caused the plaintiff injury in the form of a tear of his ACL and an aggravation and acceleration of the pre-existing degenerative condition in his right knee because:

(a) the MRI on 11 October 2019 showed an ACL tear that had not been there previously;

(b) Dr Lugg accepted that the nature of the 2019 work incident could have indirectly caused post-traumatic arthritis "either by aggravating pre-existing degenerative change or by causing other injuries in the joint, such as instability due to ligament tear ... which would then contribute to post-traumatic arthritis".[124] More generally, his opinion was premised on the 2019 work incident having caused an acceleration of the degenerative changes; and

(c) Mr McLean provided a compelling opinion of how the 2019 work incident affected the structure of the right knee and how this aggravated and accelerated the degenerative changes in the right knee leading to the knee replacement.[125]

1. The actual course of the plaintiff's right knee injury after the 2019 work incident was that it worsened and required a knee replacement.
2. In the future, there is at risk of needing a further right knee replacement. I accept Mr McLean's opinion and find that the plaintiff is at "high risk"[126] in the future of prosthetic wear, loosening, periprosthetic fractures or infections and that, if these occur, he will need revision right knee replacement surgery. The fact that these risks have not yet eventuated and that it is not possible to predict when they will eventuate does not change the fact he is at high risk. Given the high risk is for a man currently aged 52, this makes it likely that he will need revision surgery of his right knee replacement in the future. Significantly, the risk is now more likely to come home than if he had been able to have the right knee replacement later in life simply because he will have to run the high risk for a longer period.
3. I further find that, because of the injury to the right knee, the plaintiff has suffered injury to his left knee in the form of injury to the meniscal and chondral cartilage of that knee because:

(a) I accept the plaintiff's evidence that before the 2019 work incident he had a properly functioning left knee that was asymptomatic, although there may have been minor degenerative changes in that knee in the form of early osteoarthritis;

(b) I accept the plaintiff's evidence that after the 2019 work incident and injury to his right knee he developed pain and dysfunction in his left knee in part because of compensating for his altered gait and specifically from the incident he describes on 19 May 2022 when his right knee gave way; and

(c) Mr McLean and Associate Professor Love considered that the left knee injury was caused by the right knee injury, with Mr McLean describing it as an injury of meniscal and chondral origin.

1. In terms of the course of the left knee injury, the plaintiff had an arthroscope of the left knee that seems to have rectified the injury rendering it asymptomatic. While Mr McLean said degenerative changes in the left knee may progress causing a possible need in the future for surgery, there is not in my view an evidentiary basis to link any progression to the 2019 work incident, either directly or via the condition of the right knee. There was an aggravation of the left knee because of the injury to the right knee from the 2019 work incident, but that aggravation has resolved.

What impairment has the plaintiff suffered from the injury caused by the 2019 work incident?

1. Consistent with my findings of injury, I consider the impairment is identified by looking at his condition after the 2019 work incident, with an appreciation that he would likely have found himself in a similar position if the 2019 work incident had not occurred but only after a considerable period.
2. In the period between the 2019 work incident and the right knee replacement, the plaintiff had pain and dysfunction in his right knee with regular episodes of his right knee giving way. He previously had a highly functional knee that did not prevent or limit him in performing physically demanding work or activities, such as running, first aid duties for his son's football team or dancing with his wife. He had multiple medical procedures as set out above, culminating in the right knee replacement.
3. The plaintiff had a good outcome from the right knee replacement in that after a limited period of recovery he had better function in his right knee than before the replacement.
4. I find that at the date of the hearing he had the following impairment consequences of his right knee because of the 2019 work incident:

(a) he has constant tightness in his right knee, and pain and discomfort which he rates at about 1 or 2 out of 10.[127]

(b) the constant pain in his right night knee can flare on activities. This happens about once a month or once every two months and the pain will be between 4 to 7 out of 10;

(c) about once a fortnight, he will take Panadol and Nurofen (but not prescription pain medication) to help him manage the pain and discomfort but otherwise he self-manages the pain and discomfort;[128]

(d) he seeks to avoid or minimise activities that could or may increase pain in his right knee and could lead to further damage to his right knee including bringing forward a second right knee replacement. The type of activities includes demanding physical exertion such as running. He also avoids tasks that require him to kneel, twist or bend his right knee, or at least performs them carefully to minimise risk of further injury;

(e) he is able to perform his role as a CFMEU organiser, though he takes care not to cause further pain or injury to his right knee. He would not be able to work as a labourer but this is not really a loss given his plan was regardless of injury to take up a role as a CFMEU organiser if it became available. There was no evidence to suggest that his ongoing employment was uncertain;

(f) he has curtailed the activities that he did around the home so that he now does not perform renovations, maintenance and lawn mowing;

(g) he has curtailed his physical activities though he is able to do things such as attend his son's football matches, go to the pub, go to the gym and to travel. However, he does these activities in way to avoid risk of further pain or injury;

(h) I note that in the video footage shown at the hearing he was shown twice bending to pick up objects and when he did so, he placed his left hand on his left thigh to support and brace himself. I considered that the video footage was consistent with his claimed impairment. This was especially so as the defendant had placed him under 15 hours of surveillance in November 2024, of which 19 minutes of footage was shown, and 15 hours in June 2025 with no footage shown;

(i) the injury to his right knee means he is guarded about right knee. He seeks to avoid or has apprehension about climbing stairs or walking on uneven ground, or doing tasks that could potentially aggravate his right knee pain;

(j) while he worries about injuring his right knee, I cannot take account of any psychological or psychiatric consequences of the right knee injury;[129]

(k) I accept that he occasionally has episodes of pain in his back and this can at times cause him discomfort and act as a limit on activities separately or in conjunction with his right knee;

(l) at the age of 52 years old he is at "high risk" of needing revision surgery in the form of a second knee replacement; and

(m) he has had extensive medical treatment for his right in the past but he is not likely to need medical treatment in the short term, save for occasional physiotherapy treatment. If his right knee was to deteriorate he is likely to have a need for extensive medical treatment including pain relief in the lead up to revision surgery.

1. The defendant, in closing submissions, took me through the factors considered by the Court of Appeal in Haden Engineering Pty Ltd v McKinnon.[130] Having regard to that non-prescriptive and non-exhaustive list of factors,[131] I accept that at the time of the hearing his right knee injury had no impact on his sleep, cognitive functioning and sex life and limited impact on his capacity for work, mobility, capacity for self-care and self-management, social activities, and enjoyment of life. These factors need to be taken into account, but along with what has and will be lost.
2. Having made findings about the impairment consequences, I must consider whether the impairment consequences from the injury from the 2019 work incident are serious by applying the two-stage test.
3. I find that the plaintiff has suffered impairment consequences from the injury that are subjectively and objectively serious, in that they are very considerable and certainly more than significant or marked. At the risk of repetition, this is because of the following:

(a) at the age of 46 years old, and because of the injury from the 2019 work incident, the plaintiff went from being asymptomatic to having a dysfunctional right knee with attendant pain and severe restrictions that greatly impacted on his enjoyment of his life;

(b) he underwent a series of medical procedures and surgeries culminating in right knee replacement surgery at the age of 49;

(c) he had a good result from the right knee replacement but has been left with a right knee with some pain and limits on use;

(d) if all goes well, he will be left with the same level of pain and limits on the use of his right knee;

(e) however, significantly he is now at high risk of suffering a complication that could lead to him needing revision surgery of his right knee replacement. If that happened, before the surgery he would have a period with a high level of dysfunction in his right knee with attendant pain and severe restriction on use;

(f) the plaintiff's current plight is in effect an acceleration of what would have likely happened even if he had not suffered injury from the 2019 work incident. The acceleration is significant for a few reasons. First, because it is for a considerable period rather than a short period. Secondly, it means that the plaintiff has endured right knee dysfunction and a right knee replacement at a younger age, when he is active and physical, so that it has likely had a greater impact than it would have had if it occurred later in life. Thirdly, the fact he had a knee replacement at age 49 and is now at high risk of suffering a complication leading to the need for revision surgery means he must run this risk for a longer period than if he had had a right knee replacement later in life; and

(g) while he has suffered left knee injury consequential to his right knee the impairment from this was of a limited period in the past and it has made no material contribution to my consideration of serious injury.

1. I grant the plaintiff leave to commence a proceeding for non-pecuniary loss damages in respect of injury from the 2019 work incident.
2. I ask the parties to seek to agree about costs and either provide a consent order or ask my chambers to list the proceeding for a directions hearing to determine a costs order.

[1] Sub-paragraph (a) of the definition of serious injury in the Workplace Injury Rehabilitation and Compensation Act 2013 ("the Act"). The plaintiff's particulars of injury dated 13 March 2025 had claimed serious injury based on sub-paragraphs (a) and (c) but the claim under sub-paragraph (c) was abandoned at the hearing: Transcript of hearing on 2 August 2025 page ("T") 5, lines ("L") 20-23.

[2] Tavendale v The Age Co Ltd [2009] VCC 642; cited with approval by the Court of Appeal in Lexa v Transport Accident Commission [2019] VSCA 123, [49] & [50].

[3] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436, 444 ("Petkovski").

[4] Ibid; Seckold v Transport Accident Commission [2025] VSCA 18, [58] ("Seckold") and the cases referred to in footnote 24 of that judgment.

[5] Petkovski, 439; for example, RJ Gilbertson Pty Ltd v Skorsis [2000] VSCA 51; (2000) 12 VR 386, where a work incident accelerated the progression in arthritis in a shoulder.

[6] Evidence Act 2008 (Vic), ss140(2)(b), (c); Findlay v Transport Accident Commission [2025] VSCA 126 ("Findlay"), [60]-[61].

[7] Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140.

[8] Bezzina v Phi & TAC [2012] VSCA 161, [23]; Seckold, [64].

[9] Affidavit of Patrick Farrelly made 9 July 2025 ("plaintiff's second affidavit"), [12], plaintiff's court book ("PCB") 18.

[14] See discussion in Cubillo v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1, [118]-[123]; S v M (1984) 36 SASR 316.

[16] [1959] HCA 8; (1959) 101 CLR 298.

[17] Ibid; O'Donnell v Reichard [1975] VicRp 89; (1975) VR 916, 929.

[19] Findlay v Transport Accident Commission [2025] VSCA 126, [61].

[21] The report is dated 28 February 2021: PCB 92-96. Neither party tendered it.

[22] Evans Street Physiotherapy clinical records, defendant's court book ("DCB") 123-143.

[23] Ultrasound of right knee report dated 19 September 2014, plaintiff's further amended court book ("PFACB") 3.

[24] MRI of right knee report dated 23 September 2014, PFACB 5.

[25] Plaintiff's second affidavit, [9], PCB 18; the surgical record is at PCB 62.

[26] Operation report of Mr Mills dated 13 November 2014, PCB 80.

[27] Plaintiff's second affidavit, [9], PCB 18.

[28] Treating surgeon questionnaire of Mr Mills dated 17 November 2014, PCB 65-66.

[29] Certificate of capacity signed by Mr Mills on 7 January 2015, DCB 91.

[31] Affidavit of Patrick Farrelly made 12 August 2024 ("plaintiff's first affidavit"), [5], PCB 12.

[34] Gap Road Medical Centre clinical records, DCB 68-69.

[35] Plaintiff's second affidavit, [9], PCB 18.

[48] Plaintiff's first affidavit, [7], PCB 13.

[50] X-ray and ultrasound of right knee report dated 3 October 2019, PFACB 6.

[51] Plaintiff's first affidavit, [9], PCB 13.

[52] X-ray and ultrasound of right knee report dated 3 October 2019, PFACB 6.

[53] Plaintiff's first affidavit, [10], PCB 14.

[54] MRI of right knee report dated 11 October 2019, PFACB 7.

[55] Plaintiff's first affidavit, [11], PCB 14.

[56] Letter from Mr Barnes dated 11 November 2019, DCB 45.

[57] Operation report of Mr Barnes dated 16 January 2020, PCB 81.

[59] Plaintiff's first affidavit, [13], PCB 14: the affidavit does not state when this occurs, but Mr McLean recorded the plaintiff as saying that it was in March 2020: PCB 109; 111.

[62] MRI of right knee report dated 28 January 2021, PFACB 11.

[63] Report of Dr Kam dated 10 June 2025, DCB 30; Report of Dr Lugg dated 4 August 2025, DCB 35.

[64] Report of Dr Lugg dated 4 August 2025, [4], DCB 38.

[65] Plaintiff's first affidavit, [15], 14.

[66] Plaintiff's first affidavit, [15], 14.

[67] Operation report of Mr Barnes dated 24 October 2022, PCB 83.

[69] Notice of impairment benefit liability, assessment and entitlement dated 17 July 2024, PCB 138-141.

[73] Plaintiff's first affidavit, [20]-[24], PCB 15-16.

[74] Plaintiff's second affidavit, [8], [10]-[12], PCB 18-19.

[76] Report of Mr McLean dated 30 April 2025, PCB 108.

[78] Report of Mr McLean dated 4 July 2025, PCB 115.

[83] Report of Associate Professor Love dated 18 July 2023, DCB 12.

[84] Report of Dr Phang dated 14 July 2024, DCB 23.

[85] Report of Dr Kam dated 10 June 2025, DCB 30.

[89] Evidence Act 2008 (Vic), s76.

[90] Report of Dr Lugg dated 4 August 2025, [2], DCB 37.

[103] Surgical record of Mr Mills dated 30 October 2014, DCB 122.

[104] Report of Dr Lugg dated 4 August 2025, [1], DCB 37.

[106] Letter of Mr Mills dated 6 November 2014, DCB 98.

[108] Treating surgeon questionnaire of Mr Mills dated 17 November 2014, DCB 103.

[109] Certificate of capacity completed by Mr Mills dated 7 January 2015, DCB 91.

[110] Report of Dr Lugg dated 4 August 2025, [7], DCB 38.

[111] Plaintiff's first affidavit, [14], PCB 15.

[112] Report of Associate Professor Love dated 18 July 2023, DCB 13.

[113] Report of Dr Lugg dated 4 August 2025, DCB 40.

[115] Letter of Mr Barnes dated 11 November 2019, DCB 45.

[116] Report of Dr Lugg dated 4 August 2025, DCB 42.

[117] MRI of right knee report dated 23 September 2014, PFACB 5.

[118] Surgical record of Mr Mills dated 30 October 2014, DCB 122.

[119] MRI of right knee report dated 11 October 2019, PFACB 7.

[120] [2000] VSCA 51; (2000) 12 VR 386.

[122] Petkovski, 439 (Southwell and Teague J, with whom Brooking J agreed at 437).

[123] Report of Mr McLean dated 4 July 2025, PCB 115.

[124] Report of Dr Lugg dated 4 August 2025, [3], DCB 37.

[125] Report of Mr McLean dated 4 July 2025, PCB 116.

[126] Report of Mr McLean dated 30 April 2025, PCB 114.

[130] (2010) 3 VR 1.