Loader v Victorian WorkCover Authority [2026] VCC 227

1. The plaintiff is presently aged fifty-five, having been born in January 1971. He is right handed.
2. Having left school in Year 12, he then worked for about a year as a spare parts salesman. Thereafter, he worked in his father's arborist business. He next worked for Lakeside Landscaping for quite a few years as a landscape contractor, before working at Bonlac as a forklift operator between 1998 and 2003.
3. He had his first stint with the employer between 2004 and 2008 as a professional gardener and arborist. Between 2008 and 2017, he operated his own contracting business as an arborist. He completed an Advanced Diploma of Horticulture at the University of Melbourne.
4. He sustained injury to his right shoulder as a result of repeated sustained and awkward manual handling of pruning equipment ("the work duties") during the said period working with the employer as an arborist on a project known as the "Wyndham contract".
5. A number of times before the said date, he spoke to members of the employer's senior management and complained the work duties were way too much and we were risking injury. The employer was pushing him to cut too many trees and was behind in its work.
6. On the said date, there was an issue with the plaintiff's right shoulder when he was on the ground and holding the pruner up at full height, cutting branches above ground. While his arms were fully extended, he just got sudden severe shoulder pain and loss of control over his right arm, and literally dropped the power pruner to the ground ("the incident").
7. He went to the ground with the pain. He had not experienced such pain before. He stopped working immediately and tried to do paperwork in the Ute.
8. The plaintiff signed an Incident Report on 11 October 2019. On that date, he also signed a Claim for Compensation in which he described right shoulder soreness, which occurred while using a power pruner at height from ground level pruning street trees when he felt a sharp sudden pain in his right shoulder. This claim was accepted.
9. On 10 October 2019, the plaintiff saw Dr Nigel Lambert, general practitioner ("GP"), to whom he described the prolonged and difficult over-shoulder work and also told him of about an incident with a falling tree in February 2018. On that occasion, the plaintiff was struck from behind by branches cut by an inexperienced worker.
10. Following this first GP attendance on his GP, right shoulder investigations were arranged. He returned to work on light duties for a couple of weeks off the tools. He then stopped work to give his ex-wife support with a mental breakdown and resigned from the employer.
11. He agreed one of the reasons he resigned was because of ongoing custody issues, making it impossible to give a commitment to the employer. He was working, in the end, part time and sometimes only half a day "because of stuff" around his son, Patrick.

"(He) was on light duties ... [and] was talking to Rod and Neil Baker about other duties, and they wanted to nurse (him) through the injury, ... but (he) had heard that they were going to leave (him) on the Wyndham contract, and (he) was concerned about that, but (he) didn't want to leave. Light duties were paperwork, ... , (he) was putting out some signage off the back of the trucks. ... (He) was off the tools altogether."[10]

12. During that time, he was still doing a little sideline business of his own, Corymbia Tree and Garden Care ("Corymbia"),, and he wanted to advance that further. This suited him. Running his own business suited him as it kept him in Geelong where Patrick was at school.
13. While working in his own business suited him a lot better from a lifestyle point of view - "It wasn't what I wanted to do, I wanted to stay with Citywide, but I mean I love the company, still do." Had it not been for custody issues and his ability to travel, then he would have continued working for the employer.[11]
14. He became very upset in re-examination when discussing this issue further. He did not want to quit. The "recent events" referred to in his resignation letter dated 10 November 2019 was the shoulder injury:[12]

"Recent events coupled with ongoing custody issues has made it impossible for me to give the commitment the company requires ... This decision has been looming for over a year and I have been continually putting it off because I genuinely love my job and working for Citywide, however my recent injury has hastened my decision to part company . I cannot continue in my role as the daily rigours of being in the field is too taxing on my body."

15. He had physiotherapy and a couple of injections in Geelong which gave short-term pain relief.
16. He returned to working for Corymbia. He worked 20 hours a week or so, depending on demand. He was off the tools completely, doing consultancy work and reports. He was having a lot of difficulty with day-to-day tasks for years due to his right shoulder. He was renting an 8-acre property where his brother, Ian, and his son did the physical work about the place.
17. This situation continued for about two or three years. He was seeing Matt Hart for Bowen Therapy and basically restricting his activities. He was very worried about surgery and very much put his head in the sand in that respect. Eventually Dr Lambert referred him to Mr Eng, who operated on his right shoulder in April 2024 ("the surgery").
18. The surgery had definitely helped with his shoulder pain. As at April 2025,[13] his pain was intermittent. The surgery had restored a lot of shoulder movement, but he did have restrictions.
19. He had no say in what Mr Eng wrote in his September 2024 report, post surgery. Mr Eng agreed the plaintiff still had restrictions, having got him to do exercises in his rooms. He got back a really good range of movement and in that context, had no doubt Mr Eng would say his shoulder was "fantastic" because he got him going again. He was very grateful for the work Mr Eng had done because it got him back on the tools. He is happy with his range of shoulder motion, but would not call it great.[14] He agreed, broadly speaking, he had a very good range of right shoulder motion as Mr Moaveni found on examination.[15]
20. He disagreed that after the surgery, all the pain had gone in his right shoulder as Mr Eng reported - "It was diminished no question."[16] He did not remember telling Mr Eng that all the pain he had before surgery was gone.[17]
21. As of April last year, he had stiffness in his neck and got occasional neck pain. High reaching was an issue for his right shoulder, particularly extending it forwards or reaching out in front of himself. Right shoulder pain was intermittent and could range between 7.5- 8/10.
22. His physiotherapist had told him to sleep on his back to avoid sleeping on his right side, but he would often wake when he did so.
23. As at 23 January 2026,[18] his right shoulder had basically stabilised and he manages it by limiting many activities and totally avoiding others. He continues to have aching and/or pain in his right shoulder on an ever-present basis, increasing after activity.
24. His right shoulder aches if he elevates it, even without lifting anything. He can elevate his arm as a one off "without too many dramas" but repeated or sustained postures like this are very painful.
25. He agreed his right shoulder pain comes and goes. It is there under load when he is working. To a large degree he can regulate whether or not he experiences this pain and that is why he stopped doing a lot of heavier work.[19]

1. One of the biggest impacts of his shoulder injury has been on his work ability and enjoyment of his career as an arborist.
2. He limits his work on a daily basis. He has had to stop quite a number of duties and that has affected his income and the quotes he can get.
3. He cannot quit his job as he feels he would have great difficulty getting a new one.
4. He is currently working around 20 hours in the field per week using smaller tools. He also works 10 to 15 hours in the office.[20]
5. He works on privately owned gardens ranging in size from 1.5 to 3.5 acres. Four of the properties are located in Melbourne and another in Newtown owned by Frank Costa.[21] This work is a bit like his bread and butter and on top of that he does other garden maintenance with clients. It is a full-time vocation[22] involving comprehensive garden maintenance with a range of activities. His shoulder causes him difficulty if he has to reach above shoulder height.[23]
6. He can use a cherry picker to help with high work. He and Ian perform the majority of power pruning, which is either done from the ground or from an elevated work platform, or a cherry picker. He relies on his employees to do the majority of hedge pruning because largely it involves over the shoulder work. He can do this work at waist level.[24]
7. The main activity he can no longer do because of right shoulder pain is tree climbing. He is no longer able to climb into areas where the machine will not reach. If he does climb, he is obviously "clicked in" using a harness and ropes.[25]
8. He has been climbing trees since he was a teenager. His inability to climb trees makes him feel a bit emotional. He was a natural as a kid. He later did climbing courses through the University of Melbourne and NMIT. Those who go into the arbory business love trees and are tree climbers by nature.
9. He disagreed that the climbing aspect in arbory work was really a young man's game.[26] He disagreed 100 per cent he was too old to do that work.[27]
10. He disagreed, because of his shoulder injury, he would not be as physical as before. He was still climbing when aged forty-eight working full time for the employer when it got uplifting Utes from which groundwork was done. He was also then climbing in his own business day in and day out.[28]
11. At his age, he would still be very fit without his shoulder injury and would have been able to climb trees. Approximately 90 per cent of the work he traditionally did (from between 2008 and 2014) involved climbing trees.
12. Climbing is done by either Ian or by the use of a cherry picker. He agreed he was the natural tree climber. Ian would do the shorter stuff off the ground.[29] On the odd occasion Ian might help get a limb off a tree. He can scramble up a tree and he does so.[30]
13. As Ian described, in the latter part of 2025, the plaintiff had to pull out of a job at 20 feet up. That work was beyond Ian's scope, that is why he did not get him to do it.[31]
14. Had he not had the shoulder injury, the plaintiff would still be tree climbing, doing it regularly:

"I just love everything about it, I love the - I've always worked in the service industry job, you know, I often tell people I'm a fire man in a social gathering, they go, 'Hang on, don't you cut trees?' I go, 'Well, I'm always helping other people, it's part of what I do'. An arborist is a problem solver when it comes to tree issues, um, but I liked it when I was a kid, you know, I had a progression of climbing trees as a kid, but when I began to formally learn the craft, and I'm passionate - everyone here is passionate about their jobs, like I am - I wanted to learn everything about it, so I went to school to learn everything about climbing trees, and I was - I learnt to rock climb at the same time. All our techniques that we use in the arbor industry have come from rock climbing, the tools, the knots, the way you work the ropes, it's all come from rock climbing, and these two things were mine, I did them hand-in-hand when I got formal training in the art of climbing trees. I went and learned to climb rocks, and when I hike, as you saw before, in years gone by I would have gone up there and abseiled down, not hiked up and hiked down, I'd be abseiling as I'm going down. I did it all the time. I can't do them now, it's - - -."[32]

15. He cannot do the bigger jobs at work. His son, while an apprentice roof plumber, works casually for him at times - really only on the weekends.
16. He avoids using a chainsaw on a pole. He is unable to use a heavy-duty hedge trimmer. He cuts some logs with a light chainsaw. He is unable to use heavier items of equipment anymore. He has changed from fuel-operated to battery-operated tools because of their weight. He avoids physical tasks on consecutive days.
17. There are some work tasks that certainly increase his pain, but he has to do them. What he does is make sure he does not work physically the next day. For example on 26 January 2026, he did four hours raking green waste from a large garden. The following day, his shoulder was so sore he just did job quoting.
18. He is still involved in the erection of retaining walls. He was supervising, not doing retaining walls. Ian was really doing the work.[33]
19. If the work involves lifting 15-kilogram pine sleepers or 25-kilogram bags, he does not lift them, Ian does. If he were forced to, he could lift, but he paid the price afterwards.[34]
20. His brother, Ian, is "the dog's body" because his son really only works on weekends.[35]
21. Ian has a serious kidney condition, requiring dialysis three times a week - Tuesdays, Thursdays and Saturdays for five hours, starting at 2.00pm. The plaintiff drives him there. There are times he has to do things without assistance, but heavier tasks he will put off until Ian is back on board.[36] If there is a difficult heavy task they do it in the morning before dialysis.[37]
22. Ian has some restrictions in his ability to do physical work because of his dialysis, and he would require his help, "It's the only way" to maintain the business. He has modified everything. He is still surviving financially. He would not do it at all if he were not.[38]
23. He loves working outdoors and he still gets to embrace that love with his current work.[39]
24. When he gets home from work, he is pretty spent physically, and Ian, does the housework.[40]
25. In his third affidavit sworn on 29 January 2026, the plaintiff exhibited thereto some visual images of the types of work he had done and the work that he still does.
26. He also exhibited a letter of thanks from the mayor regarding his leadership of a number of strike teams in the clean up after significant storm damage in 2005. Further photographs showed him in 2007 working for the employer doing climbing work, trimming a cemetery hedge. There were also five photographs taken the previous day of some tools he uses for hedge trimming.

1. Cricket has always been a passion, having played since about twelve. While he was not playing in the 2017/2018 season when he commenced contracting on the Wyndham job, he had always intended to return to cricket, even if it was at C Grade.
2. He did try after the incident, but he could not bowl at all, and holding a bat was pretty useless. His surgeon had cautioned him about playing cricket. He felt in time he would be able to possibly try batting, but bowling was no go and he would have to throw underarm.[41]
3. He has not lost his passion for the game but simply cannot trust his shoulder. He cannot work and also play cricket.[42]
4. Mr Eng gave him the option of playing cricket. Mr Eng told him to give it a go. He was previously a right arm bowler but could not bowl at all since the injury, having tried. He was a left-hand bat and had difficulty with sweeping and hooking motions.[43]
5. If he chose to pursue cricket, he "would be in a hell of a lot of pain" if he tried it. When sitting at rest it is quite comfortable, but it is when he puts a load on his arm that the pain comes back.[44]
6. In cross-examination, it was suggested there was an inconsistency between his reference to cricket in his first affidavit and his viva voce evidence that Mr Eng said to give cricket a go. Mr Eng told him before the surgery to watch his shoulder and then, in a post-operative consultation, told him to give it a go. There were two cricket conversations.[45]
7. The plaintiff then agreed it is a fair assessment that his affidavit made no mention of two conversations and was a bit more dramatic advice about cricket than "giving it a go".[46]
8. Even in September 2024, Mr Eng told him to try to have a go at playing cricket and left it entirely to him. This was their only cricket conversation.[47] Mr Eng had not organised any sports physiotherapy for him.[48]

1. He had played golf before 2017, but from then on played several times a year and it was really a social thing. He did not have time to play more because of work, but he was still passionate about playing.[49]
2. An attempt to play golf in 2023 was no good on his right shoulder.

1. His ability to ride a motorbike was affected.
2. He stopped riding in about 2022 because leaning on the corners when riding put too much pressure on his shoulder. That was the time he could barely move his shoulder at all. He could have tried to ride the bike after the successful surgery but never did.[50]
3. He then agreed that the main reason his motorbike riding was restricted was because of neck stiffness. "It became a complication."[51] He agreed, absent the shoulder injury, he would have been denied the ability to enjoy motorbike riding because of his neck.[52]

1. Without a full and functioning shoulder, mountain climbing was just out. It was an activity he had enjoyed since he was about nineteen or twenty, having climbed in Switzerland and Austria. Before starting with the employer, he used to go mountain climbing six to eight times a year. He is too scared to do so now.
2. Rock climbing was another passion. Rock climbing and climbing trees - "these two things were mine". He had not done any rock climbing since the injury. He was a free climber, doing it quite regularly once a month before injury. Climbing required shoulder strength and he cannot put weight through his right shoulder.
3. He has also not returned to abseiling since his injury. Previously he abseiled at various sites in the Grampians three times a year when camping. This activity required you to work your arms and shoulders to support your body weight on a 13-millimetre x 50-metre rope.

1. The other passion in his life is writing. He has authored a work of historical fiction which took him ten years to write. He has five other books on the go.[53]
2. He enjoys writing in the bush as he had posted on social media and was shown in a short video in May 2025.[54] There, he described the Aussie outback as his home office. Sometimes he goes out for up to four days hiking with a pack, taking a swag, as photographed in Christmas 2024.[55] He fits his writing around his arborist job.[56] He agreed it was a wonderful outlet for him, but it was not going to take over his day job in terms of pay.[57]

1. He is a member of a gym which he attends about once a week, sometimes more sporadically to try and keep himself in condition.[58]

1. The plaintiff takes medication when he is really struggling. He does not like taking it, but he takes over-the-counter Panadol after work at least three times a week. He uses heat packs and cream.
2. He no longer has physiotherapy, having used his twenty sessions long ago. He has been given exercises to self manage. He has not seen his GP since 2023. He does still have a prescription of Meloxicam but has not taken it for some months. He tries to manage himself.[59]

1. The plaintiff's brother, Ian, affirmed an affidavit on 23 January 2026. They live together and he works for the plaintiff. He can no longer work full time. He suffers from kidney disease and requires dialysis Tuesdays, Thursdays and Saturdays, from 3.00pm 9.00pm.[60]
2. He and the plaintiff have worked together since they were teenagers, initially in their father's contract business in the 1980s. When their father died, the plaintiff took over the business, and they did powerline cleaning for ten years.
3. The plaintiff then branched out into landscaping in the '90s, and he helped him construct gardens in Melbourne and Geelong, and continued to cut trees, with the plaintiff doing all the climbing work. The plaintiff had been tree climbing trees since aged eighteen and, in his early twenties, he did formal training to be an arborist.
4. The plaintiff was a natural at tree climbing and loved it all his life, but he had never had the knack for it and preferred to be a labourer. The plaintiff told him he had trained a lot of blokes under him, climbing trees in Melbourne parks and gardens.
5. Climbing trees has always been the plaintiff's favourite part of his job, which he can no longer do because of his right shoulder injury. A few months ago, he attempted to do it but pulled out of the job because he could not handle the strain and had to climb down from about 20 feet, and they ended up doing the job with a cherry picker.
6. The plaintiff was always an avid climber. He does climb but something like maybe 20 to 30 feet. He is not qualified to put on the gear and shimmy up, so he does not do that sort of work. Before his dialysis, which started about seven years ago, he could probably climb to 30 feet.[61]
7. Since he has been helping the plaintiff, he probably would have climbed up to 15 to 20 feet at most. He agreed that he made sure in his affidavit he put things he felt were important to help the plaintiff and confirmed his affidavit evidence about climbing.[62] Although he did not mention in his affidavit what he agreed was an important matter, there were times when he had to climb a little bit and he would.[63]
8. Pre injury, the plaintiff worked for as long as needed, up to eight hours per day, but now they worked in small shifts of three to five hours a day to protect his shoulder. Pre injury, the plaintiff could do all heavy tasks, including above shoulder height, but now struggled to raise his arm above shoulder height.
9. He does almost all of the hard labour work and over shoulder work and has to help the plaintiff with heavy lifting and setting up ladders and scaffolding.
10. The plaintiff bought new equipment operated by battery because it was easier to operate, although the plaintiff still cannot use it above shoulder height. He still uses the fuel-powered equipment. The plaintiff's ability to do prolonged trimming and maintenance is restricted and he regularly swaps with him to give his shoulder a rest.
11. He moved in with the plaintiff in 2022 and does most of the household tasks. He regularly sees the plaintiff in pain and having difficulty with dressing. He generally carries the shopping. He helps the plaintiff with car maintenance.
12. He assists the plaintiff to a certain degree because the dialysis knocks him around a bit. Some nights he is sick after dialysis, and it really takes a toll on his body.[64]
13. In the mornings before dialysis, he does not do heavy lifting, but he does a lot of raking and watering. To a certain degree, dialysis fatigues him. Some days are better and some days are good. He can be exhausted after dialysis, and he suffers from lack of energy sometimes.[65] The last few years he has been managing the dialysis well. He takes constant daily medication.[66]
14. It depends on the day whether he is able to do physical work. Sometimes he does not. On the days he has dialysis, he tends not to do heavy lifting and the day after, he would not be doing heavy lifting. Some days he will do it and then if it is getting a bit too much, he pulls up and puts that job aside and does another smaller task. He does not allow the plaintiff to do the heavier tasks that he might not be able to do because he has tried previously and he will see him "wince or something" and say "nah, leave it alone, I'll do this" and he will do it at a certain time when he can and they put it aside to another day. They assist each other with lifting, but the plaintiff can only do a small amount because of his shoulder.[67]
15. On a high job, they now get a cherry picker or a scaffold involved. The previous day, they did some high trimming from a scaffold. That is how they worked together to cope with the work and the jobs the plaintiff can no longer do.[68]
16. He was sentenced to five years' jail in 2010 for indecent assault and sentenced to six months' imprisonment in 2023 for similar offending. He had also pleaded guilty to stealing a woman's handbag and using her credit card.[69]
17. When he was recently sentenced, he was given light community work in a factory for the Salvation Army rather than to do community work involving manual labour like his work duties.[70] The Community Correction Order was 120 hours, which he did over two-and-a-half to three months.[71]
18. His lawyer told the Court that because of the dialysis, he could not do physical work like he did with the plaintiff. He agreed that was pretty dishonest - not by him, he did not say a word, but his lawyer had explained to him what he was going to do.[72]
19. In response to the suggestion that he either could not do the physical work or he was lying to the Court, he responded "come, spend a couple of days work with us and we'll show you what I can do". He confirmed he does the physical work with the plaintiff.[73] He had not attempted to mislead the Court, saying he did physical aspects of the work to help the plaintiff's case.[74]
20. The plaintiff also complained about his neck, but moreso his shoulder than anything. He does complain his neck restricts him but not necessarily actually restricting him with all of the physical stuff. It was fair to say he complained about both his neck and shoulder from time to time when they were working and that they both interfered with the plaintiff's physical work.[75]
21. Pre injury, the plaintiff was very active and loved cricket, which he played since he was a kid. He used to play A Grade but could no longer play cricket. He also loved motorbike riding but now leaning in and out places pressure on his shoulder and he did not ride very often like he used to. He drives a car mainly with his left hand.
22. The plaintiff is loyal, friendly, stoic and jovial. It is upsetting for him to experience ongoing pain, and the injury has modified the way he does things.

1. Dr Lambert referred the plaintiff to a physiotherapist on 18 October 2018 for opinion and management of his shoulder impingement and bursitis.
2. He referred the plaintiff to Mr Eng on 21 February 2023 for opinion and management of his right shoulder pain.

1. Mr Eng wrote to the GP in March 2023, diagnosing right AC joint pain and proposing an AC injection.
2. He noted the incident injury and subsequent treatment with Bowen Therapy and physiotherapy. The plaintiff's shoulder movement had returned, but he still had pain over the AC joint.
3. On examination, there was tenderness over that joint. An MRI scan confirmed an intact rotator cuff and signal change around the AC joint consistent with the plaintiff's symptoms. Hopefully an injection would improve his symptoms.
4. Mr Eng wrote to the GP again on 2 August 2023, advising he had written to WorkCover to do an AC excision, noting the plaintiff had had a good response from the cortisone injection into the AC joint but it had only lasted a few weeks.
5. In his letter to the GP on 24 April 2024, the plan was for the plaintiff to return to work on normal hours following a right AC joint excision.

"... [The plaintiff's] shoulder is going fantastically. He is working well with the Corio Bay team.

He is in the middle of a compensation claim and wants to see me in six months time regarding this, I'll catch up with him then."

1. There was an acute physiotherapy discharge summary from Epworth dated 4 April 2024.
2. There was a physiotherapy management plan from Northern Physiotherapy in Norlane dated 5 August 2024.

1. The plaintiff had an ultrasound of his right shoulder on 14 October 2019. It was concluded there was insertional calcific tendinosis of subscapularis; bursal thickening and dynamic impingement demonstrated. A trial of ultrasound-guided corticosteroid injection may be of value.
2. There were no significant findings on an x-ray of the right shoulder of that date.
3. There was a further ultrasound of the right shoulder in July 2022. It was reported there was calcific tendinosis at the insertion of the subscapularis and minor subacromial bursitis. This ultrasound was accompanied by a subacromial bursa injection.
4. It was reported there were severe OA changes to the AC joint with florid arthritis and hypertrophic changes, resulting in narrowing of the subacromial space, and mild impingement onto the myotendinous junction of the supraspinatus, and there was also mild subacromial bursitis. There was mild tendinosis to the subscapularis tendon and anterior insertional fibres of the supraspinatus with no evident tear.
5. The plaintiff had an MRI scan of his right shoulder in March 2023. It was reported that alignment of the bony structures in the right shoulder was preserved and that signal intensity of the bone marrow was normal.
6. There was a CT-guided injection of the right AC joint on 10 May 2023.
7. On 3 April 2024, Mr Eng carried out a right shoulder arthroscopy plus AC excision at Epworth.

1. Dr Vivian examined the plaintiff on behalf of Allianz Workers Compensation in October 2019.
2. The plaintiff then complained of right shoulder tip pain, activated by movement and by lying on his right side. If he lay on his right side, he woke. He demonstrated that his function had improved, although some shoulder movements were still restricted. There was no crepitus or clicking.
3. The diagnosis was shoulder impingement with subacromial bursitis and some underlying rotator cuff degeneration, in particular, affecting the subscapularis and associated with calcification. The injury was consistent with the stated cause.
4. The plaintiff did not have a capacity for his pre-injury work at that time and would need further rehabilitation and time off work before he could consider returning to it. An occupational expert may need to go and review the work and revise.

1. Mr Moaveni saw the plaintiff on 2 October 2025.
2. The plaintiff currently experiences intermittent pain in the right shoulder, particularly over the right acromioclavicular joint. This is exacerbated by overhead positioning, as well as heavy lifting, for example more than 15 to 20 kilograms.
3. On examination, there was a mild loss of movement in the right shoulder joint observed consistent with the plaintiff's diagnosed injury - aggravation of right shoulder acromioclavicular joint degenerative changes.
4. The plaintiff was not currently receiving any allied health treatment and continued with self managed exercises. He was taking Panadeine Forte once a fortnight, usually to help manage pain after work.
5. The plaintiff noted minimal difficulty with household tasks. He noted minimal sleep disturbance due to right shoulder pain but could wake up sleeping on the right side.
6. The plaintiff reported moderate difficulty in social and recreational activities. This included cricket, mainly batting, and golf. He was no longer able to rock climb or abseil, and he also avoided riding a bike due to his injury.
7. The plaintiff reported moderate difficulty with carrying, lifting, pushing, pulling, reaching and/or repetitive activity and described mild to moderate difficulty with grasping and holding.
8. Mr Moaveni noted the history of treatment leading to surgery in April 2024. The plaintiff's recovery was complicated by possible adhesive capsulitis requiring a further injection.
9. The injuries were consistent with the stated cause. The mechanism of injury involving laying on the ground holding a pruner up with full arm extension is consistent with the diagnosed injuries. This mechanism involving overhead positioning and repetitive shoulder movement while holding equipment is consistent with the diagnosed injury.
10. The plaintiff's ongoing condition and symptoms continue to stem from the work incident.
11. The plaintiff's prognosis is guarded. He will need to modify activities to accommodate symptoms and avoid pain exacerbation. His injuries are likely to deteriorate into the future.
12. As a consequence of his injuries and impairment, the plaintiff is likely to be precluded or restricted in relation to activities involving repetitive or overhead tasks, lifting the arm above shoulder height, reaching behind the back, overhead activities, and pushing, pulling or carrying items. The overall extent of his incapacity is moderate and likely to continue for the foreseeable future.
13. The plaintiff has moderate difficulty with overhead positioning and lifting the arm above shoulder height. He deliberately avoids pruning activities where possible to prevent overloading his shoulder with his employees performing the majority of power pruning.
14. He avoids riding a bike due to his right shoulder injury. There is no evidence of restriction to head movement. He reports moderate difficulty in cricket, mainly batting, due to his right shoulder injury. He also noted minimal difficultly managing household chores, including cooking, dishwashing, bed making, vacuuming, mopping and laundry.

1. Mr Eng wrote to the plaintiff's GP on 23 September 2024:

"Steve's shoulder is fantastic and he's back at work. He's got a great range of motion and all the pain he had before surgery is gone. He is keen to participate in cricket and I think this seems perfectly reasonable. We'll get the Corio Bay team to look at a return to sport program."

1. Mr Chehata first saw the plaintiff on 27 May 2025.
2. The plaintiff reported that there was no specific traumatic incident, but rather a slow, steady worsening of pain over time. The pain developed gradually through repetitive overhead working activities associated with his arborist duties.
3. The symptoms became particularly severe about 4 October 2019 when the plaintiff developed right shoulder bursitis which ultimately prohibited him from returning to his employment full time with the employer.
4. On re-examination on 9 December 2025, the plaintiff reported minor residual irritations and restrictions. He experiences some discomfort with sustained elevated arm positions, such as when driving for extended periods. He reported that after the two-and-a-half-hour' drive to the examination, he felt some soreness when his arm was elevated on the steering wheel, which resolved upon lowering his arm.
5. While movements of the right shoulder showed some limitation compared to normal, they represented functional improvement following surgical intervention. There was no observable muscle wasting of the right shoulder, and the AC joint was non tender to palpation, consistent with successful surgery.
6. The current diagnosis is post-operative right shoulder capsulitis with mild residual restriction of movement. This represents the resolved state of his primary pathologies, which were right shoulder calcific tendinitis with secondary bursitis and acromioclavicular joint arthritis, all of which have been successfully addressed though surgical intervention.
7. Occupationally, the plaintiff has had to completely restructure his working life. He can no longer perform the overhead work that was central to his previous employment. He now employed other workers to perform most of the overhead activities, such as street pruning and powerline pruning. He no longer performed significant overhead work, no longer climbed trees and avoided much of the hard manual labour he previously undertook.
8. The plaintiff's ability to sleep on his right side without significant discomfort indicated substantial improvement in his pain levels and functional capacity.
9. The active diagnosis was post-operative right shoulder capsulitis. Right shoulder calcific tendinitis with bursitis and AC joint arthritis (resolved post operation).
10. The plaintiff had achieved excellent functional recovery following surgery, a successful return to work in a modified capacity and resolution of pre-operative pain symptoms.
11. The causative duty that caused the shoulder pain was the repetitive overhead power tree pruning because of the weight of the machinery, as well as the repetitive nature of the action.
12. At fifty-four, the plaintiff had become unable to perform the overhead duties he was able to perform as a younger individual, and then many years later, having developed calcific tendinitis and adhesive capsulitis, symptomatic acromioclavicular joint degeneration. That was likely incidental and became symptomatic many years after the initial injury. The primary pathology is calcific tendinitis with an adhesive capsulitic picture which represented a natural progression of the plaintiff's occupational shoulder strain over many years of heavy overhead work.
13. The history of the plaintiff's social and occupational activities pre injury was that of a physically fit individual who actively played cricket with no functional restrictions. He has not returned to cricket despite receiving medical clearance as he does not feel confident his shoulder can tolerate the demands of the sport. He is unable to continue abseiling. He can no longer ride heavy road bikes.
14. Despite these limitations, he has adapted his recreational pursuits and developed new hobbies, having become a published author. He maintains fitness through gym exercises. He reports outdoor activities, particularly bushwalking, have been helpful in managing the stress associated with his injury and recovery.
15. There was no functional overlay. The plaintiff demonstrated appropriate adaption to his physical limitations.
16. The plaintiff's current treatment regime has essentially concluded, and he is not taking any pain medication presently. He has effectively returned to full-time work with complete resolution of his pre-operative symptoms, indicating successful treatment outcomes.

1. The heavy nature of the plaintiff's work and the occurrence of the incident on the said date were not in issue. His claim for compensation was accepted.
2. Mr Moaveni diagnosed an aggravation of right shoulder acromioclavicular joint degenerative changes. Mr Chehata's current diagnosis is post-operative capsulitis with mild restriction of movement. The primary pathology is calcific tendinitis with an adhesive capsulitic picture which represented a natural progression of the plaintiff's occupational shoulder strain over many years of heavy overhead work.
3. Mr Moaveni considered the plaintiff had an ongoing right shoulder condition and symptoms which continue to stem from the work incident. Mr Chehata thought the primary conditions for which the plaintiff was treated have been successfully resolved through surgery. Mr Eng considered the plaintiff had made a successful recovery when he last saw him at the end of 2024.
4. The issue therefore is whether, as at the date of hearing, the consequences of any right shoulder impairment are serious and permanent.

1. As Maxwell P said in Haden Engineering:[76]

"... 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."

2. The defendant attacked the plaintiff's credit on two issues - his level of physical activity in the business, given his brother's illness, and his discussions with Mr Eng about a return to playing cricket.
3. It was submitted the plaintiff did more work in the business than he had disclosed, given the lack of assistance he would be given by his brother, who is on dialysis three times a week.
4. This is an issue of credit which needed to be embraced - "It beggared belief that a man who underwent dialysis three days a week and could be knocked around so badly that he is out of action the next day is really of any legitimate use to the plaintiff because the work is of its very nature physical."[77]
5. Further, the plaintiff was not candid about cricket. Mr Eng said he could give it a go, and it was a decision the plaintiff made not to play.[78]
6. In response, the plaintiff was put forward as a man of credit and a stoic.[79]
7. As I indicated during the hearing, I did not have any issues with the plaintiff's credit in relation to the cricket discussion[80] or his level of physical work in his business.[81]
8. I found the plaintiff to be somewhat of a stoic who battled on working with shoulder pain until ultimately coming to surgery in 2024.
9. The plaintiff did tell Mr Chehata that he had been cleared to play cricket but had chosen not to. I accept the plaintiff's evidence that he lacks confidence in the shoulder to return to the game he previously loved.
10. Further, the plaintiff clearly has been very supportive of his brother, Ian, from an early age and during very difficult personal and health issues. I accept the plaintiff's explanation and his very strong resistance to suggestions that he was doing more in the business than he had disclosed.[82]

1. In Haden Engineering,[83] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
2. The plaintiff deposed in January this year, he has ongoing aching and/or pain in his right shoulder on an ever-present basis, increasing after activity. He agreed the pain is intermittent. Keeping his right elbow elevated is a significant problem.
3. The plaintiff has difficulty with heavy tasks, particularly overhead tasks involving use of his dominant right arm. He is also restricted in relation to activities involving repetitive tasks, lifting his arm above shoulder height, pushing and or pulling items.

1. Initially the plaintiff underwent conservative treatment including Bowen Therapy, physiotherapy and a corticosteroid injection to the subacromial bursa in July 2022. As he failed to improve, he was referred to surgeon, Mr Eng, who organised a CT-guided injection carried out in May 2023.
2. The plaintiff ultimately came to surgery on 4 March 2024 when Mr Eng performed arthroscopic surgery on his right shoulder which helped with his pain. Post operatively, he had extensive physiotherapy at Corio.
3. The plaintiff does not like taking medication but takes Panadol occasionally if he has worked too hard on any given day. He also undertakes self-managed exercises.

1. The full range of arborist duties - involving overhead or heavy work - has now been closed off to the plaintiff as a result of his right shoulder injury.[84] He can no longer perform the overhead work that was central to his previous employment.[85]
2. The plaintiff did not return to work on the tools with the employer after the incident. It was not until after the 2024 surgery that he was able to resume this aspect of his arborist work.
3. As Mr Chehata commented, occupationally the plaintiff has had to completely restructure his working life.
4. The main work consequence is his inability to do tree climbing, a work activity he also had enjoyed as a hobby from an early age.
5. While the defendant says this was an activity the plaintiff would no longer be doing absent injury given his age, the plaintiff is now only fifty-four and had more years in the field, engaging in a work task he enjoyed and also a recreational activity.
6. In addition to an inability to climb trees, the plaintiff has difficulty with any overhead work and tasks involving elevation of his right elbow. He has had to purchase lighter tools and do more work from an elevated platform.
7. The plaintiff can no longer work a full day in the field and has to adjust his day accordingly with necessary amounts of help from his brother during the week and son on weekends. He tends to work in shorter shifts to protect his shoulder.
8. In these circumstances, I do not accept the defendant's submission the plaintiff has maintained his business with "a degree of ease."
9. It is clear from the plaintiff's November 2019 resignation letter that increasing difficulty with work duties due to shoulder pain played a major role in leaving the job he loved in late 2019. His level of distress when discussing this issue confirmed this was the case.

1. The defendant submitted that the plaintiff had retained the ability to engage in a range of activities.
2. In Dwyer v Calco Timbers Pty Ltd (No 2),[86] Ashley JA stated:

"... in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained."

3. The defendant argued that the plaintiff has retained his ability to exercise his love of the outdoors and there would be changes in his fifties anyway. The fact is he is moving to a stage in his life where he can exercise his love of writing and he has gone to the trouble of publishing a book and has a series of manuscripts on the go. He is able to go out and go bushwalking for two to four days with a pack weighing 20 kilograms, and hike at least for a distance of 10 kilometres.[87]
4. However, as Dr Chehata commented, the injury to the plaintiff's right shoulder has significantly impacted on his social and recreational activities, although he has demonstrated considerable adaption to these limitations.
5. While the plaintiff still engages in a range of activities, he has lost the ability to go abseiling and mountain climbing - important hobbies he enjoyed pre injury on a frequent basis.[88] His evidence in this regard was not challenged.
6. I accept, although having been given a medical clearance, the plaintiff's evidence that he would "be in a hell of a lot of pain" if he tried to play cricket. The reality is he has not been able to maintain returning to cricket other than one attempt.[89]
7. The plaintiff has been unable to resume playing golf. Pre injury, he enjoyed golf but had little time to play because he was working full time with the employer.[90]
8. The plaintiff's love of motorbike riding has now been stripped from him in any event because of his neck[91] but pre surgery, he was unable to ride because of his shoulder.
9. Despite relatively successful surgery, the plaintiff continues to experience right shoulder symptoms and restriction. There is no suggestion that further improvement will occur. Mr Moaveni thought the plaintiff's injuries were likely to deteriorate in the future. In the circumstances, the shoulder impairment is permanent.
10. Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.

[3] See Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140-141

[4] [2005] VSCA 33; (2005) 14 VR 622

[5] [2010] VSCA 69; (2010) 31 VR 1 ("Haden Engineering")

[13] Plaintiff's first affidavit sworn 7 April 2025 ("April 2025 affidavit")

[15] Mr Moaveni's examination on 4 October 2023

[18] Plaintiff's second affidavit sworn 23 January 2026 ("January 2026 affidavit_"_)

[79] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [4]

[84] Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26

[86] [2008] VSCA 260 at paragraph [27]; Stijepic v One Force Group Australia Pty Ltd (2009) VSCA 181 at paragraph [44]