Knight v Waddell Inn Pty Ltd [2026] VCC 241

1. Mr Knight bears the onus of demonstrating that the impairment of his right upper limb is permanent and that the consequences are serious.
2. One of the considerations is that Mr Knight remains in full-time employment. In this regard, Maxwell P, in Haden Engineering Pty Ltd v McKinnon,[7] stated:

"As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which 'an area of work which [the plaintiff] enjoyed has been closed off to [him or her]'."[8]

1. The plaintiff was fifty-two years of age at the time he ceased employment with the defendant in February 2022 for unrelated reasons. He is presently employed as a maintenance officer at Stawell Hospital on a full-time basis.
2. Mr Knight completed Year 11 at Stawell Technical School before he qualified as a glazier with the defendant. He has a number of unrelated health conditions, all of which were disclosed in his affidavit material in support of the application.
3. His work history involves employment in essentially physical roles, including his work as a glazier. The relevant period of employment commenced on 22 May 2006, when he recommenced working for the defendant.
4. The evidence establishes the following matters.
5. Mr Knight regularly handled heavy panes of glass, including glass doors, in the course of his employment;
6. As early as 9 August 2006, he was suffering from pain in his left shoulder as a result of lifting a pane of glass at work, and saw his GP, Dr Oliver Hisken at Stawell Medical Centre, on 10 August 2006;
7. He had pain in his right shoulder in August 2016 as a result of lifting a heavy pane of glass at work. Mr Knight's treating general practitioner at the time, Dr Venkat Komerelly, reported that Mr Knight suffered a right shoulder sprain, and that the condition was expected to improve in one to two weeks.[9] Dr Komerelly's opinion was based on a single attendance on 19 August 2016, when Mr Knight had provided a history of "right shoulder pain due to pulling on right shoulder while lifting a 50 kg glass pane with both hands on August 17, 2016".
8. There is no evidence that he attended his general practitioner between 2016 and February 2019 in relation to his right shoulder.
9. He another flare-up of pain in or about December 2018 when four persons, including Mr Knight, were lifting a heavy pane of glass weighing approximately 240 kilograms. He attended his general practitioner at the Stawell Medical Centre on 13 February 2019 due to ongoing pain and tightness in his right shoulder, providing a history of three months of pain following lifting the heavy pane of glass. An x‑ray did not disclose any abnormality.
10. On 12 April 2019, following another attendance upon his general practitioner for ongoing shoulder pain, an ultrasound of his right shoulder disclosed:

"Mild supraspinatus tendinopathy; no tear. > > Mild thickening of the subacromial bursa in keeping with bursitis. Bursal bunching and pain occur with abduction and there is minor degenerative change in the ACJ."[10]

11. His general practitioner referred him for physiotherapy. On 31 May 2019, after three months on a waiting list, Mr Knight informed the physiotherapist that "the problem has now resolved and [he] no longer requires Physiotherapy intervention".[11]
12. On 1 August 2021, Mr Knight fell off his motorbike, landing on his right elbow and jarring his right shoulder. He required a month off work following this incident, wore a sling for a period of time. His general practitioner diagnosed a tear in his rotator cuff tendon, after an ultrasound on 11 August 2021 had disclosed:

"... tendinosis of the supraspinatus tendon with small partial tears at the articular and bursal surfaces. > > There is tendinosis of the infraspinatus tendon but associated tears. Normal appearances of the teres minor, subscapularis, and long head of biceps tendon. > > There is thickening of the subacromial subdeltoid bursa with an effusion consistent with bursitis."[12]

13. The only time Mr Knight was prescribed strong pain medication - Celebrex in August 2021 - was in the context of the motorbike accident.
14. Mr Knight was referred for physiotherapy at Stawell Regional Health. In her report dated 1 September 2021, physiotherapist, Sarah Turner, reported Mr Knight was suffering a decreased active range of movement of the right shoulder compared to the left, especially with flexion and abduction; and decreased muscle strength of the right shoulder compared to left, especially with flexion and abduction. The plan was to continue to see Mr Knight "until he has reached his Physiotherapy related goals".[13] Mr Knight had only had limited physiotherapy before Ms Turner moved from the region, and Mr Knight has had no physiotherapy since that time.
15. Mr Knight had an ultrasound-guided steroid injection on 24 December 2021, again in the context of the flare-up of his pain consequent upon the motorbike accident. His general practitioner recorded on 21 January 2022, that there had been no improvement in his symptoms since the injection.[14]
16. He was referred to sports physician, Dr Greg Harris, on 24 January 2022 for "right rotator cuff partial tear after a motor bike accident in August 2021".[15]
17. Mr Knight's history to Dr Harris on 7 February 2022 included:

(a) a painful shoulder for a couple of years, initially after an incident at work in December 2018, which was very painful for several weeks afterwards, then settled down;

(b) he had a low-speed fall from his motorbike in August 2021, landing on his right side, and the following day, his shoulder was increasingly painful, and had remained so since then;

(c) the pain did not wake him from sleep, but is present with most movements;

(d) he takes occasional simple analgesia.

1. At the time of Dr Harris' examination, Mr Knight had a full passive range of motion and intact rotator cuff function. In Dr Harris' opinion, the ultrasound demonstrated fluid in the subacromial bursa and small partial rotator cuff tears, which were essentially age-related. His presentation was most consistent with ongoing subacromial bursitis.
2. Dr Harris administered an ultrasound-guided injection of the subacromial bursa, which was well tolerated and "improved his signs and symptoms almost immediately".[16]
3. Mr Knight attended his general practitioner on 15 March 2022 for review of his shoulders.[17]
4. Dr Harris discharged Mr Knight from his care on 26 April 2022. By that stage, Mr Knight had been diligent with his exercises, and while he still had some catching pain while reaching overhead with the right shoulder, he was reasonably comfortable with most activities. He was not then taking any regular analgesia. Dr Harris stated, "there is probably little need for me to see him again but I would be more than happy to do so should the need arise".[18]
5. In his report to the plaintiff's solicitors dated 16 April 2023, Dr Harris stated the prognosis with regards to Mr Knight's right shoulder is "good, provided he maintains his rehabilitation exercises for postural control at the shoulder and loading of the shoulder within the limits of his pain".[19]
6. The only time Mr Knight had time off in relation to his right shoulder was the month after his motorbike incident. His evidence, although a little imprecise, was to the effect that his shoulder returned to his pre-transport accident state within about twelve months of the transport accident. This is consistent with the discharge by Dr Harris in April 2022, following a successful ultrasound-guided steroid injection which relieved his symptoms.
7. Mr Knight commenced his current role at Stawell Hospital in or about May 2022.
8. Mr Knight again attended his general practitioner clinic with ongoing right shoulder pain on 12 July 2022. His history included that he did not use medication as he "thinks this may mask his pain", he had a steroid injection and there had been "some improvement" in his right shoulder rotator cuff tendinopathy. Although the general practitioner explained that regular ultrasound was not required because "he has improved clinically", Dr Batawalaarachchi nevertheless referred Mr Knight for an ultrasound at his insistence.[20] The ultrasound on 19 July 2022 confirmed subacromial bursitis with impingement and mild tendinosis of the supraspinatus tendon.[21]
9. Mr Knight consulted his general practitioner again in relation to the right shoulder on 22 August 2022, 19 September 2022 and 1 February 2023, but not since. These attendances broadly correlate with the increase in symptoms and treatment following the transport accident, which, on Mr Knight's account, had resolved by around that time to the "baseline" level. His last attendance was to discuss a January 2023 MRI scan of the right shoulder, which concluded there was tendinosis of the supraspinatus with a partial deep surface tear, mild subacromial bursitis and degenerative changes of the superior posterior labrum.[22]
10. There is limited evidence in his first affidavit, sworn 20 August 2024, as to the nature and extent of Mr Knight's ongoing pain and restriction, being the reference to a "twinge" a couple of times a week, which he "simply put[s] up with".[23]
11. His second affidavit, sworn 1 October 2025, includes a description of his current pain in these terms:

"... I continue to suffer from ongoing pain in my right shoulder which I best describe as a stabbing type sensation at times, with pain increasing with activity. The pain never ceases."[24]

1. Orthopaedic surgeon, Dr Graeme Doig, examined Mr Knight at the request of the WorkCover insurer in July 2023, and diagnosed a soft-tissue injury, with positive impingement. Dr Doig felt the prognosis was guarded in respect to "re-gaining further function at the right shoulder and returning to pre-injury employment".[25]
2. A Medical Panel Opinion on 16 January 2024 assessed the injury to the right shoulder. Mr Knight's history to the Medical Panel at the time included:

(a) he can now do everything required of him, but notices difficulties with elevating his extremity above shoulder height;

(b) he is able to complete some overhead maintenance work slowly and relying on his left arm;

(c) he always has pain in his right shoulder, but it is a "low grade niggle";

(d) upon elevation of the right shoulder, the pain is like a knife, but he can undertake movements slowly; and

(e) if he is asleep and rolls on his right shoulder he wakes, noticing low levels of pain in his right shoulder.[26]

1. The diagnosis was "soft tissue right rotator cuff strain injury about his right shoulder, conservatively treated"[27] with ongoing pain and mild dysfunction at his right shoulder joint.
2. Consultant orthopaedic surgeon, Mr Ash Moaveni, who examined Mr Knight on 15 May 2025, reported there was right-sided subacromial impingement, with some loss of motion, described as "mild loss of movement". Mr Moaveni diagnosed right shoulder soft-tissue injury, being an aggravation of rotator cuff tendinopathy with supraspinatus and infraspinatus tendinosis, and subacromial bursitis with impingement. Mr Knight described his pain as "two out of ten on average, though ... it can increase to eight out of ten during exacerbations".[28] Mr Moaveni quantified Mr Knight's functional limits as mild to moderate.
3. In Mr Moaveni's opinion:

"The imaging findings demonstrate only minor degenerative changes that are NOT consistent with a significant traumatic workplace injury. The December 2018 incident involving the 240-kilogram glass pane, while subjectively reported as significant, has not resulted in imaging evidence of major structural damage or acute trauma. > > ... > > ... Based on the imaging findings, this appears to be primarily an age-related degenerative condition with minor occupational contribution. The imaging does NOT support a significant employment-related traumatic injury. The condition represents expected degenerative changes in a 55-year-old manual worker, with the December 2018 incident being a minor contributing factor at most rather than a primary causative event."[29] > > (emphasis in original)

4. In Mr Moaveni's opinion, the range of motion would gradually improve in step with his resolving capsulitis.
5. Although Mr Moaveni stated there would likely be progression of degenerative changes given Mr Knight's age and occupational history, there was a "good functional outcome expected with appropriate activity modification" and he did not consider Mr Knight to be at risk of further deterioration in relation to his right shoulder injury.
6. Mr Moaveni considered the August 2021 motorbike fall to be a temporary exacerbation of the work-related shoulder condition, rather than a major contributor to his current presentation. The defendant accepts this to be so.
7. Overall, in Mr Moaveni's opinion, the prognosis for the right shoulder injury is fair, as Mr Knight would need to continue modifying activities to accommodate symptoms and avoid pain exacerbation.
8. Most recently, orthopaedic surgeon, Mr Ash Chehata, examined Mr Knight at the request of the defendant's solicitors in October 2025. Mr Chehata reported that Mr Knight suffers right shoulder subacromial impingement syndrome with chronic tendinopathy of the supraspinatus tendon, and a partial thickness tear of the rotator cuff.[30] Mr Chehata attributed this condition to a complex interplay of occupational overuse, acute traumatic injury (the motorbike incident) and age-related degenerative changes in a manual worker. Overall, the primary contributing factor, in his opinion, was an age-related degenerative condition with minor occupational contribution.
9. Mr Chehata noted only modest restrictions, and that Mr Knight had successfully adapted his lifestyle and work to accommodate his shoulder limitations. In his opinion, his current functional level is compatible with meaningful employment and an acceptable quality of life with appropriate activity modifications.[31] I accept that opinion.
10. I find the evidence of Mr Moaveni and Mr Chehata, and the evidence overall, to be consistent with a modest clinical presentation.

1. As a result of the nature of his employment over time, Mr Knight suffers from a soft-tissue injury to his right shoulder, with some aggravation of underlying tendinopathy and impingement. So much was conceded by the defendant.
2. On any analysis, Mr Knight is having no ongoing treatment, takes no strong pain medication or even over-the-counter medications, and the injury has no impact on his ability to socialise. It does not compromise his ability to undertake meaningful employment on a full-time basis, albeit with limited accommodation for his mild loss of function in his right shoulder. While this loss of function is certainly not a trivial matter, it does not constitute a "very considerable" consequence.
3. The principal consequences of the impairment to his right upper limb relied upon were sleep, sailing, motorbike riding and ongoing pain and loss of function.
4. In relation to sleep, it is notable that, during the limited period of significant treatment following the motorbike incident in August 2021, Mr Knight provided a history to Dr Harris that he was not being woken by pain. I accept some sleep interruption if he lies on his right shoulder, but this is modest when compared with other comparable impairments within the range of cases.
5. A great emphasis was placed upon the interruption to Mr Knight's pre-injury love of sailing. It may be accepted he has a significant history as a sailor, including at a State level. His injuries, however, do not prevent him from sailing. His evidence included he has some difficulty putting up a mast due to his right shoulder, but is able to obtain assistance. He thought he might sell his one-person sailing boat. The last time he participated in the Victorian championships was in 2014, prior to his first presentation to his GP in 2016 and the principal incident in 2018 he relies on which resulted in a flare-up of his right shoulder pain.
6. I accept sailing is a passion and that it would be affected to some degree. This is significant. His evidence he sails less often was not challenged. The evidence does not, however, establish he was sailing competitively in the two years before he first complained of right shoulder pain. Consistent with the nature of his injury, and ongoing "niggling" discomfort as the base level of his pain, the fact that Mr Knight has retained his capacity to sail with friends is a consideration in assessing what he has lost.
7. Mr Knight still enjoys dirt-bike riding. The effect on this hobby is minimal, noting his evidence that he was able to undertake many runs of challenging desert riding before being forced to rest. I accept the defendant's submission that this is a relatively minor loss, and he has retained most of his capacity. Although this restriction in a recreational past-time he enjoys is not trivial for Mr Knight, his ongoing dirt-bike riding is consistent overall with a retention of a high degree of his pre-injury capacity.
8. When considering pain, it is important to analyse what the plaintiff does about it. In this instance, Mr Knight is suffering from mild twinges on an ongoing basis, at most two out of ten, with increased pain on elevation of the arm above shoulder height at work at times. His pain does not currently require any medication. Following the motorbike accident, he did require Celebrex to treat his pain for a limited period.
9. It is a little difficult to know what to make of his evidence that he does not take any over-the-counter medication because he does not want to mask his pain and thereby risk re-injuring his shoulder. The medical evidence is that he is not at risk of further deterioration, including in the context of his current role at Stawell Hospital. I accept the defendant's submissions that the more likely explanation for not taking any pain medication, at least in part, is there is not enough pain to be masked.
10. Mr Knight undertakes no physiotherapy, but perhaps does some limited home exercises. His symptoms, by his own account to his treating doctor, had resolved following the second injection administered by Dr Harris in February 2022. He has no ongoing treatment from his general practitioner, who he has not consulted for several years in relation to the claimed injury.
11. None of these matters bespeak of significant ongoing daily pain.
12. It seems that the extent of his ongoing pain is consistent with his history to Dr Doig of "niggling discomfort";[32] his affidavit evidence of a "twinge" a couple of times a week, which he simply puts up with; a stabbing pain "at times", and short-lived increases in pain following significant overuse.
13. I accept that Mr Knight could not return to his pre-injury employment as a glazier without modification.[33] Mr Knight did not rely on any inability to enjoy his former role as a glazier as a pain and suffering consequence. He appears to be doing well in his current full-time work as a hospital maintenance officer. There is some modification to his activity, and favouring of the right arm, for example in lifting 20-kilogram concrete bags. As an indicator of his high-level of retained function, he was able to load seven trailers of green waste at work before experiencing pain in his right shoulder.
14. He has retained the ability to drive a car for one-and-three-quarter hours or longer. Although he has difficulty taking an overhead mark when kicking a football with his children, he is not precluded from this activity. He continues to mow his lawn, including being able to start his mower. Asking for assistance if the mower is difficult to start is a modest consequence. This mild level of restriction is consistent with the diagnosis of his injuries.
15. I do not accept his evidence he has any great difficulty gardening at home, considering the nature of the maintenance work he performs at Stawell Hospital. I note he may have some difficulty chopping wood, but he has provided histories to doctors that he prefers to pay for wood anyway.

1. A return to work does not preclude a finding of serious injury. Nevertheless, Mr Knight's duties as a maintenance officer, including heavy physical work, handling bags of concrete and other manual handling, including loads of green waste, before experiencing some increased shoulder pain for "a day or two", are a consideration in terms of the assessment of Mr Knight's injuries against the range of other possible impairments, including those that do not come before the Court.
2. As against what has been lost, in the circumstances of this case, Mr Knight's retained ability to work in full-time employment at Stawell Hospital is a factor against his application.
3. His sleep is only modestly affected.
4. By his own account, Mr Knight says that he tries to persist with the types of activities he has always enjoyed but cannot do them for as often or as well as he used to. In my view, this is not enough to satisfy the narrative test.
5. His evidence includes changing lightbulbs overhead in his work results in pain. I accept this to be so, but save for other heavy manual work, there is quite limited evidence of tasks which result in flare-ups of his pain. His general practitioner does not recommend any restrictions in his work, and there are no clinical notes of any attendances in relation to flare-ups during his work with Stawell Hospital since early 2023. The prognosis for Mr Knight's right shoulder is good provided he looks after it.
6. Mr Knight urged me to consider the combination of consequences, in their totality, and find that Mr Knight has suffered a serious injury in accordance with the narrative test.
7. It is to Mr Knight's credit that he continues to work, but this must be viewed in the context of a relatively modest injury which involves modest ongoing pain and discomfort, which does not require any ongoing treatment. His shoulder condition needed, at most, only limited physiotherapy in the past. He takes no medication at all and has not consulted a specialist since a steroid injection in 2022 relieved an increase in pain he was experiencing following a motorbike accident in 2021. While the accommodations he has made as a consequence of his reduced shoulder function at work and in his recreational pursuits are certainly not trivial, they are not "very considerable".
8. Overall, I find that while the consequences of the impairment of Mr Knight's right upper extremity, in totality, might be fairly described as significant, they are not "more than significant or marked" or "very considerable" when compared with the range of cases that come before the Court.
9. The application is refused, with costs.

[1] Defendant's Amended Court Book ("DCB") 33

[4] Mr Knight's treating sports physician, Dr Greg Harris, considers the fluid in the subacromial bursa and small partial rotator cuff tears demonstrated on ultrasound in 2022 to be essentially age related: DCB 41

[5] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140

[6] Johns v Oaktech Pty Ltd [2020] VSCA 10

[7] [2010] VSCA 69; (2010) 31 VR 1

[9] Report dated 9 February 2023: Plaintiff's Court Book ("PCB") 20

[16] DCB 41: report dated 7 February 2022

[33] Report of Mr Chehata dated 14 October 2025, DCB 30