Nixon v VWA [2025] VCC 6

1. Initially the plaintiff brought the application under paragraphs (a), (b) and/or (c). On the first day of the hearing, after viewing the plaintiff's scarring, the defendant conceded that the plaintiff's pain and suffering consequences satisfy the test for "serious injury" pursuant to clause (b) of the definition of serious injury. The plaintiff ultimately persisted with his claim under clause (a) only.
2. The principle issue for determination is whether the plaintiff has suffered a permanent loss of earning capacity of 40 per cent or more. I am required to determine the plaintiff's "after injury" earnings and his "without injury" earning capacity.
3. The plaintiff's credit was attacked by the defendant.

1. The plaintiff relied upon four affidavits affirmed on 23 June 2022, 18 May 2023, 6 September 2023, and 17 October 2024, and an affidavit affirmed by his friend and colleague, Mr Bevan Tompkins, on 21 July 2023.
2. In addition, both parties relied on medical reports and other medical material as well as vocational assessments and rehabilitation reports which were tendered in evidence.
3. At the hearing, the plaintiff gave evidence and was cross-examined.
4. Mr Tompkins also gave evidence and was cross-examined.
5. I have read all the necessary tendered material and I will refer to the relevant evidence to the extent necessary in these reasons.

1. The plaintiff, Mr Nixon, was born in November 1968 and is currently 56 years of age. He is divorced and now resides with his elderly parents in Queensland.
2. After finishing Year 11, the plaintiff worked in various jobs such as warehousing and as a greenkeeper and DJ.[2]
3. The plaintiff first worked as a store person at B&M Slots Pty Ltd between 2001 and 2003.[3] He then moved back to the Sunshine Coast to undertake work as a real estate agent with his father between about 2003 and 2007.[4]
4. The plaintiff returned to B&M Slots Pty Ltd doing warehousing work between approximately 2007 to 2010.[5]
5. Following that, between the years of 2011 and 2017, he began work in construction, mainly on a fly-in-fly-out ('FIFO') basis.
6. The plaintiff worked as a Material Controller for Lendlease on Project Aurora and an ammonia nitrate plant construction project in Moranbah, Queensland, between January 2011 and June 2012. He then worked as a Material Controller for UGL Operations and Maintenance Pty Ltd on the BHP Jimblebar Project constructing new conveyors and other structures on an iron ore site between September 2012 and October 2013.[6]
7. The plaintiff worked as a Material Controller of Bechtel Construction (Australia) Pty Ltd on the LNG Plant on Curtis Island, Gladstone, Queensland between January 2014 and May 2014. He then worked as a Leading Hand/Material Controller for UGL Operations and Maintenance Pty Ltd on the Ichthys LNG Project providing structural, mechanical and piping construction between June 2014 and October 2017.[7]
8. The plaintiff said he decided to take a break from FIFO work from October 2017 to prioritise his long-term relationship. The relationship ended in late 2017 and in March 2018, he returned to FIFO work as a forklift/fuel driver for Monadelphous at Incitec Pivot in Phosphate Hill, Queensland ('Monadelphous') until May 2018.[8]
9. He was then contracted to perform different jobs in various roles for a labour hire company, MC Labour Hire between May and August 2018. He then returned to working as a forklift driver for Monadelphous between September and December 2018.[9]
10. In December 2018 the plaintiff was invited to step into a new contract operating cranes and working with materials run by Multiplex Pty Ltd to work on the Queen Street Pier in Brisbane that was due to commence in June 2019. The project was to last four years.[10]
11. Between December 2018 and April 2019, the plaintiff worked on different smaller sized projects to ensure he would be available in June 2019. During this period, he worked with M Maintenance Services Pty Ltd, MC Labour Services and MCLS (Aust) Pty Ltd and Screentime Pty Ltd, in various different labouring roles.[11]
12. The plaintiff began work for B&M Slots Pty Ltd again on a farm equipment installation business in Pakenham in April 2019.[12]
13. On or about 18 April 2019, the plaintiff suffered a crush injury to his left leg when a large stack of steel trays that he was to unload from a shipping container collapsed onto him. He deposed that he was trapped under the trays for about ten minutes before being freed by his colleagues. He was taken to Casey Hospital and then transferred to Mulgrave Private Hospital where he underwent an open reduction and internal fixation and skin graft from the left volar forearm to the left distal anterior ankle on 19 April 2019 and 21 April 2019.[13]
14. The plaintiff was an inpatient at Mulgrave Private Hospital for two months before being transferred to Donvale Rehabilitation Hospital for further rehabilitation.[14] He was an inpatient at Donvale Rehabilitation Hospital for 6 weeks before being discharged and participating in an outpatient program for a further 8 weeks.[15]
15. The plaintiff reported returning to work with B&M Slots Pty Ltd from July 2019 to August 2019 for approximately two hours a day, once to twice a week, performing paperwork and running errands.[16]
16. The plaintiff moved back to the Sunshine Coast in Queensland to live with his parents on 14 August 2019. There he commenced a multidisciplinary outpatient program at Eden Private Hospital in Cooroy.[17] During this time, he was under the care of Dr Paul du Toit, rehabilitation physician, who was concerned about his declining mental health and referred him to Dr Brian Jacobs, psychiatrist on 12 September 2019. He attended his first appointment with Dr Jacobs on 3 October 2019.[18]
17. The plaintiff attempted suicide on 29 February 2020 and was subsequently admitted to a psychiatric facility for two weeks.[19]
18. In February 2023, the plaintiff returned to work with the assistance of the rehabilitation provider, IPAR. He commenced working for Lifestyle Supports as a disability support worker for 10 hours per week, over two days, working with clients one on one, taking them to appointments, taking them shopping and to attend family visits. The work essentially involved being a companion and driving the clients around.[20] He deposed to an increase of pain in his left leg after working for about 2.5 hours and resorting to pain killers to manage his work and to be able to undertake a shift the following day. By April 2023, his general practitioner reduced his hours to a maximum of 6 hours per week. He deposed that despite the reduction, he continued to struggle after 2.5 hours and managed this with pain killers.[21]
19. The plaintiff continues to be certified fit for six hours of work per week by his general practitioner.

1. Mr Bevan Tompkins is a friend and colleague of the plaintiff. He has known the plaintiff since approximately 2008 and first worked with him in around 2011 until mid-2012 on the Project Aurora in Moranbah, Queensland. He next worked with the plaintiff in 2018 on a project in Phosphate Hill, Queensland under Monadelphous.[22]
2. He contacted the plaintiff towards the beginning of 2022 to offer him a job as a Forklift Operator/Trade Assistant in Hay Point, Mackay, Queensland. It was a nightshift role for 12 hours per day for a period of 14 to 18 months and worth between $220,000 and $250,000. The plaintiff declined this offer due to his foot injury.[23] Mr Tompkins deposed that but for the plaintiff's foot injury, he would have had ongoing roles to offer the plaintiff that would last between 6 to 18 months depending on the projects. He said that the companies he worked for like to hang onto personnel that they have worked with in the past and like to take existing personnel with them on to new jobs.

1. It is accepted by both parties that the Medical Panel Opinion is binding on the Court pursuant to s313(4) of the Act. The Medical Panel formed its opinion on 29 February 2024 in response to a referral from Judge Purcell on 2 November 2023.
2. Although the reasons of the Medical Panel were tendered by the defendant as they contained relevant expert medical opinion and formed part of the evidence, they are not binding.[24]
3. The Medical Panel was asked various questions in relation to the plaintiff's work capacity and provided answers.[25] Relevantly, the Medical Panel was asked whether the medical condition of the plaintiff's left leg including scarring and excluding any psychological or psychiatric consequences, resulted in or materially contributed to the plaintiff having either a current work capacity or a no current work capacity within the meaning of the Act. The Medical Panel determined that the plaintiff had a current work capacity for semi-sedentary employment, with the ability to wear open-toed footwear, constituting suitable employment.
4. In the Medical Panel's opinion, considering the medical condition of the left leg, including scarring, the plaintiff has a current work capacity.
5. The Medical Panel was also asked for how many hours and days per week the plaintiff had the capacity to work in each such employment and it expressed the opinion that initially the plaintiff has the capacity to work in such employment for 6 hours per day, 3 days per week.
6. In the Medical Panel's opinion, in the foreseeable future (being 6-12 months), the plaintiff would have the capacity to work full time in such employment.

1. The plaintiff attended the Medical Practice 'Medicine on Second' and was normally treated by Dr Hayter who he first consulted in August 2019 after he had returned to Queensland. Dr Hayter observed that the Plaintiff had made slow progress with rehabilitation despite regular rehabilitation input. He was able to mobilise without the use of crutches by October 2019 but pain and restricted range of movement in the ankle limited his mobility. His overall prognosis for recovery was guarded considering his slow progress. Dr Hayter noted that the plaintiff had experienced an episode of major depression in the context of his slow recovery and ongoing pain, and he needed treatment as an inpatient by psychiatrist Dr Jacobs in March 2020.
2. In his report dated 18 July 2024 Dr Hayter assessed the plaintiff's work capacity and he observed that the plaintiff was affected by his reduced mobility, inability to wear enclosed footwear for extended periods and his ongoing need for opioid analgesia. This had affected his ability to resume work in the construction or transport sector. He noted that the plaintiff had found a part time position as carer, in which he had been able to work for reduced hours. His symptoms remained unchanged. His condition was stable and unlikely to further improve.[26]

Dr Peter Georgius, pain and rehabilitation specialist

1. The plaintiff commenced attending Dr Georgius for management of his post-injury pain on 27 January 2021. In Dr Georgius' opinion the plaintiff had had an excellent biomechanical and cosmetic outcome, but ongoing pain was limiting his overall function.[27] Treatment was aimed at controlling his symptoms to maximise his level of function, participation in activities and to maintain his independence. The plaintiff would require ongoing maintenance multidisciplinary therapies such as physiotherapy, adjustment of his orthotics and ongoing input from his psychiatrist as well as medication to control the pain. There was no management that would result in a cure or a change in his impairment. He had reached maximum medical improvement and his condition was stable.[28] Future management was aimed at controlling his symptoms to maintain his current level of functioning.
2. In relation to his work capacity, Dr Georgius noted that the plaintiff was participating in a graded return to work program as a disability support worker. The plaintiff found work rewarding but the activity led to increased pain. With normal activity, the plaintiff's pain was normally between 2 to 4 out of 10 but with work-related activity the pain increased to 7 out of 10. The plaintiff did respond to opioid medication however the reliance on opioid medication precluded him from performing any activities or work where opioid medication is prohibited such as operating plant machinery and equipment cranes and trucks.[29]
3. In his report dated 20 August 2024, Dr Georgius observed that after three hours of work the plaintiff felt he required the use of immediate release opioid medication to control his pain and to allow him to complete a six-hour shift. He noted that the plaintiff had attempted but failed to increase his work hours and number of workdays per week in the past and that his injury also restricted his recreational and avocational activities with pain as a major limiting factor.

1. The plaintiff underwent outpatient rehabilitation at Eden Private Hospital where he was treated by several clinicians namely Chris Bryant, physiotherapist, Jessica Champion, exercise physiologist, and Alanah Davies, occupational therapist. He first presented at outpatients on 23 September 2019. It was noted that given the time that had elapsed since surgical intervention, it was likely that further improvements in his range of movement and strength will be slow and marginal. Further treatment was unlikely to yield significant improvement in his foot and ankle strength or range of motion. He would benefit from ongoing physical conditioning and support towards returning to occupational and recreational pursuits and further therapy could be directed towards managing ladders, agility tasks and optimising joint range of motion in the big toe.[30]

1. The plaintiff commenced receiving physiotherapy treatment from Ms Morrison after initially seeing Tim Boyle, podiatrist, and Sophie Stewart, physiotherapist, at the same clinic. He has been undergoing monthly physiotherapy focusing on pain management and strength conditioning. Ms Morrison has recommended that he continue with regular physiotherapy sessions for strength conditioning, gait re-education and pain management. She also recommended structured exercise programs with a view to improving endurance and maintaining his muscle strength, especially the lower extremities.[31]

1. Dr Jacobs is the plaintiff's treating psychiatrist, and the plaintiff attends him for review and psychological support. The plaintiff reported to Dr Jacobs that he has not been able to return to his usual occupation as a crane operator due to his physical injury which has led to the development of a secondary psychological injury, an adjustment disorder associated with the loss of his employment, financial disadvantage, chronic pain, physical disability and the loss of future employment prospects.[32]
2. Dr Jacobs opines that the plaintiff's mental health has not been the limiting factor in his capacity to return to work. The plaintiff's work restriction appears to be primarily due to pain and health and safety footwear restrictions. The limiting factor in his progression towards full time employment is dependent on pain management and workplace footwear policies.[33]

1. Dr Horsley examined the plaintiff on two occasions namely 2 March 2023 and 12 September 2024.
2. After taking a detailed social history, educational history, occupational history as well as noting details of the injury, treatment and rehabilitation efforts, Dr Horsley noted in her report dated 2 March 2023 that the plaintiff had been cleared to return to work 16 hours per week with significant restrictions. The plaintiff undertook low-grade training with the National Disability Insurance Scheme ('NDIS') to be able to perform disability support work such as taking adult clients with autism to the beach and shopping. She noted that he commenced such work on 2 February 2023 and was working at the time of review, approximately 6 to 8 hours per week. In her opinion the work he was doing was appropriate and his capacity for work was likely to remain part-time. She believed that it was likely that he would increase from his current 6 to 10 hours of work per week to in the vicinity of 16 to 20 hours per week.[34] Dr Horsley is of the opinion that the plaintiff is permanently unfit for his pre-injury role and the critical physical demands of such a role are beyond his capacity.[35]
3. When Dr Horsley re-examined the plaintiff on 12 September 2024, she disagreed with the Medical Panel's opinion dated 29 February 2024 which stated that the plaintiff could return to full time work, although she acknowledged that the opinion was binding. In her opinion the plaintiff would find it difficult to return to work on a full-time basis, although improving his work hours as 3 to 4 hour shifts five days a week would be within the plaintiff's capacity.[36]
4. Dr Horsley re-iterated her opinion that the plaintiff is permanently unfit for the physical nature of his role with B&M Slots Pty Ltd, and also as a FIFO worker.[37]

1. Mr Miller first assessed the plaintiff on 1 March 2023 and from the point of view of the left leg, he opined that the plaintiff will have difficulty with work that involves prolonged standing, walking, twisting, turning, kneeling, squatting and walking on uneven ground. It was not safe for the plaintiff to climb, and he would be required to have regular rest breaks several times a day.
2. These restrictions were likely to be permanent and work-related, and the plaintiff is not fit for pre-injury duties, effectively only suitable for sedentary roles.[38]
3. Mr Miller assessed the plaintiff again on 18 September 2024 and re-iterated his opinion in relation to work capacity. Mr Miller commented on the plaintiff's limited return to modified work as a disability support worker with 6 hours per week shifts. He opined that the plaintiff is unlikely to be able to increase his work hours beyond that and his work capacity will be further impacted by his regular use of opioid medications.[39]

Ms Erin Williams, vocational assessment specialist

1. Ms Williams assessed the plaintiff on 6 March 2023. It was her opinion that the plaintiff's functional limitations and pain were likely to be a significant barrier to him obtaining 'suitable employment'. As a consequence of his injuries, Ms Williams opined it was unlikely that he will have the capacity to work in full-time employment at the time of assessment or in the future without considerable improvement in his condition.[40] She identified the plaintiff's psychological and cognitive symptoms as a further barrier to his ability to find and maintain meaningful and ongoing 'suitable employment'.[41]
2. Mr Williams expressed the view that the plaintiff was not capable of meeting the inherent requirements of his pre-injury role as the physical and postural demands were outside of his functional limitations. He would be unfit to return to his pre-injury employment permanently.[42] She considered that the plaintiff's current and future earnings capacity was negligible.[43]
3. Ms Williams did not consider that the plaintiff could return to work as a forklift driver, a leading hand, a storeman, a real estate agent, a courier driver, a warehouse supervisor/supply and distribution manager, a compliance/quality assurance officer and an occupational health and safety officer.
4. In relation to work as a warehouse administrator/logistics manager, Ms Williams expressed the view that the role was currently outside the plaintiff's experience, and it was unlikely that with his current restrictions, he would be capable of meeting the inherent duties and hours of the role. Should he be able to tolerate closed-toe shoes, it could be considered 'suitable employment' after a worksite assessment is completed.[44]
5. Ms Williams advised against the plaintiff seeking employment as an insurance officer unless he could better manage his pain, had improved concentration, had experienced improvement in his mental state, and was less fatigued, as it was unlikely he could cope with the fast-paced and KPI-driven environment of a claims/call centre environment.[45]
6. Ms Williams was of the opinion that the plaintiff would need a flexible and supportive employer with an understanding of his medical condition who was willing to provide modification of tasks, working days/hours and had realistic expectations of productivity. She opined that the plaintiff was also unlikely to have the capacity to sustain any full-time work.[46]
7. She saw the plaintiff prior to the Medical Panel opinion and her opinion with respect to capacity to undertake the specific positions is largely superseded by the Medical Panel opinion.

Ms April Dennehy, rehabilitation consultant and occupational therapist, KINNECT

1. Ms Dennehy assessed the plaintiff on 15 October 2024. Based on the medical information and reported functional capacity provided to Ms Dennehy, she believed the plaintiff had the capacity to participate in job roles that were sedentary/medium in nature as long as he did not have to keep closed toed shoes on for prolonged periods of time. She stated that he has the capacity to seek employment in part-time roles, with the possibility of progressing to full-time.[47]
2. Based on the plaintiff's education, training, experience, transferable skills, functional capacity and medical information, Ms Dennehy stated that he would be capable of working within administration, as an uber driver, surfing instructor, swimming teacher, and in customer service / emergency response roles. Further, as the plaintiff reported an interest in pursuing a Certificate IV in Leisure and Health to Ms Dennehy, she suggested that he would be able to engage in work as a recreation officer, activities officer, diversional therapy assistant, lifestyle co-ordinator, leisure and lifestyle officer, disability provider, disability lifestyle support worker, or recreational officer palliative care and hospital roles.[48]
3. Ms Dennehy set out what the plaintiff could reasonably expect to earn on a full-time basis in various roles, including as a disability support worker, in administration, as an uber driver, surfing instructor, swimming instructor and customer service/emergency response worker. In light of the Medical Panel opinion, she identified earnings as to the following:[49]

(a) Insurance Assessor - approximately $80,000 to $90,000 per year;

(b) Real Estate Agent - $68,640 per year based on labour market research and between $70,000 to $90,000 per year based on SEEK.

1. Ms Dennehy assessed the plaintiff's 'without injury' earnings in a Plant Operator role working on a FIFO basis would be approximately $177,708 per annum.[50]

1. The plaintiff was examined by Dr McCartney on two occasions before the Medical Panel examination took place and reported on 19 March 2021 and on 24 September 2022. On the first occasion Dr McCartney assessed the plaintiff as fit to return to work on 5 to 6 hour shifts, five days a week with restrictions such as no prolonged standing, walking limited to two hours and avoiding uneven surfaces, no prolonged sitting, no bending or squatting, and the ability to wear appropriate footwear.[51]
2. Dr McCartney considered the same restrictions were appropriate for the plaintiff's return to work when he reviewed him for the second time via a teleconsultation. He was of the opinion that the plaintiff would be suitable for sedentary roles such as warehouse administrator, workplace health and safety officer, compliance/quality assurance manager and administration clerk. This was on the assumption that the roles did not require work within an environment where closed-toe footwear was required.[52]
3. Dr McCartney was asked to provide his further comments after surveillance footage and an activity report were forwarded to him. Having viewed the surveillance supplied, Dr McCartney opined that the plaintiff's observed surfing activities were not consistent with the history he obtained as the plaintiff had reported to him at the consultation conducted on 13 September 2022 that he had been unable to return to surfing due to ankle and big toe symptoms. He noted however that the plaintiff was observed walking with a limp which he considered was consistent with the reported symptoms and suggestive of ongoing pain. He added that the plaintiff's reported increase in pain with activity was not established with the surveillance as his limp and range of movement he displayed when under surveillance appeared similar before and after engaging in surfing.
4. Dr McCartney acknowledged that when he reviewed the plaintiff on 13 September 2022, he was unable to physically examine him as the consultation was performed by teleconference. He had conducted a physical examination on the first consult on 19 March 2021. As two years had elapsed since his physical examination, the surveillance was not likely to be consistent with those examination findings as the plaintiff had received further treatment which had likely improved his range of motion.
5. Based on the surveillance material, Dr McCartney believed that the restrictions on the plaintiff's capacity ought to be revisited and the plaintiff was capable of pre-injury duties, including on a full-time basis, following a graduated return to work.[53]

1. Professor Sahoo examined the plaintiff on January 2020 and opined that the plaintiff had a current work capacity and could return to modified hours and modified duties on a graded return to work plan which started from 5 to 6 hours per day, working 5 days per week, and gradually increasing about 1 hour per week until he reaches full-time duties.[54]

1. Dr Lewis examined the plaintiff on 21 August 2024 and was of the opinion that if one were to hypothetically separate the psychiatric condition from the underlying medical condition, the plaintiff had a theoretical capacity to work up to 15 hours per week from a very narrow psychiatric perspective. The plaintiff was precluded from working more than 15 hours per week, secondary to his reduced drive, motivational difficulties, lack of confidence and reduced stress tolerance.[55]

The defendant's employment and earnings reports

1. The Defendant engaged IPAR to facilitate the plaintiff's rehabilitation and return to work. In IPAR's transferable skills analysis report dated 4 December 2019, jobs such as a forklift operator, truck driver, leading hand, storeman, warehouse administrator, and real estate agent were proposed as suitable future employment options.[56] IPAR recommended that the plaintiff pursue a return to work in Forklift Operation at his previous employer, Monadelphous.[57]
2. In IPAR's 130 Week Vocational Assessment Report dated 29 January 2021, the plaintiff was assessed as being incapacitated for work at the time of the report, however, job options were based on projected capacity and would require further medical assessment. Jobs that were discussed were courier driver, warehouse supervisor or storeman, forklift operator, warehouse assistant/logistics manager, and a light rigid truck driver.[58]
3. In IPAR's Labour Market Analysis report dated 14 December 2022, a labour market analysis was conducted for various full-time positions such as forklift operator, tanker/truck driver, leading hand, storeman, warehouse administrator or a logistic manager, real estate agent, courier driver, warehouse supervisor/supply distribution manager, insurance claims officer, compliance/quality assurance officer and administrator, workplace/occupational health safety officer/advisor and support worker.[59]
4. The Medical Panel had in its possession the above reports from IPAR when forming its opinion.
5. In light of the Medical Panel opinion, IPAR conducted an updated labour market analysis in relation to real estate agent and insurance claims officer positions and outlined their findings in their 26 June 2024 report. On average, a real estate agent could expect to earn $809.10 per week ($42,073.20 per annum) and an insurance claims officer could expect to earn $1,423 per week ($73,996 per annum). IPAR noted that minimal information was available from employers in respect of the real estate agent role due to the nature of the work and employees being paid on a commission basis rather than a salary. Utilising online tools such as Indeed, IPAR found that real estate agents had prospects of earning $4,094 per week ($212,888 per annum) at a maximum. IPAR concluded that insurance agents could earn $1,864 per week ($96,928) per annum at a maximum.[60]
6. Purporting to rely on the Medical Panel opinion, IPAR also sought to identify additional suitable employment options for the plaintiff namely compliance/quality assurance officer and administrator and support worker. A compliance/quality assurance officer and administrator's median earnings are $1,120 per week ($58,240 per annum). A support worker's median earnings are $1,382 per week ($71,684 per annum). An administration officer's median earnings are $1,223 per week ($63,596 per annum).[61]

1. The plaintiff submitted that I should accept that he is a truthful witness and overall, he gave evidence in a frank and honest manner without prevarication and that his credit was bolstered by declarations against interest on a number of occasions. It was also submitted that his credit was not seriously challenged in critical areas.

1. The defendant submitted that I should reject the plaintiff's evidence as it was unreliable given:

(a) He gave inconsistent histories regarding his sleep;

(b) He failed to disclose his surfing activities to Dr McCartney, Dr Horsley and Ms Williams;

(c) He exaggerated his pain levels;

(d) He was not working to his true capacity in light of the Medical Panel's opinion; and

(e) His evidence conflicted with that of Mr Tompkins in respect of the availability of FIFO work and the discussions they had in 2018 regarding the availability of work.

1. For the reasons above, the defendant submitted that I should not accept at face value the plaintiff's claims regarding his work intentions.
2. The defendant further submitted that I should reject the plaintiff's evidence in respect of his work intentions as unreliable for the following reasons:

(a) There is no documented corroborating evidence regarding the job offer with Multiplex at Brisbane Pier with a salary of about $200,000 per year made by Mr Wayne Bishop and that it was an absurdity that there was not given the size of that organisation. Moreover, Mr Tompkins' evidence was that arrangements in the FIFO sector are not documented until close to commencement, however, the Multiplex job was not a FIFO one and therefore not subject to the same informality;

(b) There was no affidavit from his friend and boss at B&M Slots Pty Ltd despite the plaintiff giving evidence that he had discussed his work intentions with him;

(c) The salary figure of "approximately $200,000 per annum" is not exact and higher than his declared earnings in 2016 when he was undertaking exclusively FIFO work and therefore it would be unreliable to make such a serious finding;

(d) The plaintiff's own affidavit material is inconsistent with respect to his intentions as in his third affidavit he deposes as to his intentions to return to FIFO work, however in his fourth affidavit he deposes to intending to work on the Queen Street Pier in Brisbane;

(e) The plaintiff's tax returns over the preceding four years before injury show a progressive decline, as well as a period for which he received Centrelink and therefore it is inconsistent with his earnings jumping to $200,000; and

(f) The plaintiff relocated to Melbourne to work for B&M Slots Pty Ltd, and this is inconsistent with it being only a temporary job, especially in the context of previous extended periods of employment.

1. I find that the plaintiff was a credible witness, and he gave his evidence in a frank and forthright manner.
2. The plaintiff was cross-examined in relation to his reports of pain when he attended a functional capacity evaluation that was performed by IPAR on 3 August 2022 in which he rated his pain to be 3/10, with 10 being the worst pain imaginable. He reported his pain increased to 6/10 when contacted by IPAR in the 24 hours following the assessment. Reports of pain to IPAR were contrasted with the reported history to Dr Horsley who recorded in her report dated 12 September 2024 that the plaintiff complained of pain rising to 8 to 9/10 after wearing socks and shoes for two or three hours. It was put to the plaintiff that the plaintiff's complaint of pain being so close to the worst pain imaginable was an over exaggeration.[62] This was rejected by the plaintiff.
3. In my view the plaintiff's description of his pain and the discomfort was largely consistent with the findings of the medical examiners and his oral evidence aligned with his affidavits. For instance, Dr Hayter in his report dated 20 February 2023 observed that the plaintiff's current symptoms and restrictions were such that the plaintiff continued to experience ankle and foot pain which is exacerbated by standing, walking and wearing enclosed footwear for extended periods of time.[63] In his report dated 18 July 2024, Dr Hayter confirmed that the plaintiff experienced pain after prolonged standing and walking and experienced pain and immobility when wearing enclosed footwear. Dr Georgius reported on 24 April 2024 that activities including walking and work increased pain. His medications included Amitriptyline 64 mg nocte and Tapentadol immediate release 50 mg PRN, three doses a week following activity including work activity. The plaintiff needed the use of immediate release opioid is to maintain his level of function, participation and to complete work duties.[64]
4. Ms Montana reported that the plaintiff experienced a numb and intense pain "akin to slamming a body part in a car door", which occurred frequently after periods of activity.[65]
5. Dr Horsley, in her report dated 2 March 2023, recorded the plaintiff experienced chronic discomfort at a level of 2 to 3/10, and with activity the discomfort rose to 5 to 6/10. She also recorded the plaintiff's difficulty with shoes and socks and his great toe and second toe "feel as though they're going to explode."[66] His reported pain levels to Dr Horsley in March 2023 were completely consistent with the history recorded by IPAR. I do not consider that a minor variation in the history recorded by Dr Horsley as to his reported pain in September 2024, undermines the plaintiff's credibility.
6. Similarly, I do not accept that there was any great variation between the plaintiff's complaints in respect of sleep to Ms Montana compared with his affidavit. Rather there was a uniformity in his complaints in respect of his compromised sleep. Ms Montana stated that the plaintiff had terrible sleep quality that was exacerbated by pain and anxiety leading to overthinking and interrupted rest.[67] The plaintiff reported to Ms Williams that he suffers from disturbed sleep and will get around six hours of broken sleep on a good night and only two to three hours on a bad night.[68] Again such minor variations in history do not cause me to doubt the plaintiff's credibility.
7. The plaintiff has been open in respect of his return to his surfing activity. He deposed to this in his first affidavit which was affirmed on 23 June 2022 in which he stated:[69]

"before my work injury, I regularly surfed as it was my main hobby. I have since returned to surfing but have to wear a special ankle and foot brace, so my surfing is quite limited compared to before. Although I cannot surf like I used to, I try to surf every day to benefit my physical and mental health."

1. Dr McCarthy, in his report dated 24 September 2022, recorded the history of the plaintiff having tried to return to surfing a few times but stated he struggled due to ankle and big toe symptoms.[70] Dr McCarthy in his report dated 24 September 2023, said that the plaintiff reported being unable to return to surfing due to ankle and big toe symptoms and this observation was relied on to support his conclusion that there was an inconsistency between the symptoms reported an activities on surveillance. Dr McCarthy has mis-stated the earlier history that was recorded in his report dated 24 September 2022, and what the plaintiff told him on that occasion is not that from what was deposed to.
2. The Medical Panel watched the surveillance footage of the plaintiff surfing with him and concluded in its opinion, that the plaintiff's presentation was in keeping with the observed activities.
3. Although Dr Horsley in her first report did not record a history of the plaintiff's surfing, the plaintiff did report that he walked on the beach 45 minutes per day, and he attended the gym daily for 45 minutes conducting an exercise program prescribed by his physiotherapist which he self-funded. I do not accept that there was any intention to underplay the level of activity that the plaintiff engaged in and to the contrary, he has disclosed a significant level of activity.
4. I do not accept that because the Medical Panel accepted that the plaintiff has a capacity to undertake work as either a real estate agent or insurance officer that he is exaggerating the extent of his incapacity. Whilst the Medical Panel opinion is binding with respect to capacity and suitable employment, the plaintiff does have medical support that at this stage he has a restricted capacity.
5. I reject the defendant's submissions that he was an unreliable witness.
6. I also observe the following:

(a) The plaintiff as well as Mr Tompkins appear to refer to FIFO work and construction interchangeably. The plaintiff, in his resume, describes the work he performed with UGL as "a joint venture providing the structural, mechanical and piping construction package."[71] Mr Tompkins was cross-examined in respect of arrangement for FIFO work and said that:[72]

"with construction jobs, they could last anywhere from 6 to 18 months and different people from different companies often notify workers well in advance of upcoming opportunities."

(b) The defendant conceded that no adverse inference could be drawn from the plaintiff's failure to adduce evidence from B&M Slots Pty Ltd, particularly as the defendant was the insurer of the employer. It also concedes that the employer was in a position to adduce that evidence.[73] I accept the plaintiff's evidence that the position with B&M Slots Pty Ltd was just a temporary fill-in job until he could commence his well-paying job on the Multiplex project. The plaintiff has been consistent in stating that the position at B&M Slots Pty Ltd was only short-term employment and work between regular contracts. This was noted by IPAR in the transferable skills analysis report dated 4 December 2019, a number of years before the plaintiff brought his serious injury application. He has consistently stated his intentions to return to FIFO work. When he was involved with IPAR in the early stages of his rehabilitation at a time when he was somewhat optimistic that he would return to pre-injury employment, he was communicating consistently with Monadelphous as they had a position available for him to start on 20 January 2020, if he was able to meet the functional requirements as a forklift operator, specifically being able to wear steel capped boots and tolerating work for a 12 hour shift.[74]

(c) The decline in income in 2018 is explained by the plaintiff's decision to step away from FIFO work to devote time to his personal relationship. Even Mr Tompkins acknowledged that it was not unusual for FIFO workers to take breaks for personal reasons and he himself took time off for family commitments in 2018.[75]

(d) Although the evidence Mr Tompkins gave about the plaintiff's work intentions in 2018 differed from the plaintiff's, it is not unusual for people to remember different parts of conversations, especially after the passage of a number of years. Mr Tompkins did contradict the plaintiff about the availability of FIFO work in 2018 but this must be prefaced with Mr Tompkins admission that in 2018 his "mind focused elsewhere" and he was focused on his family at the time.[76] He gave his evidence about him being preoccupied with family matters in the context of questions put to him about the availability of work at Monadelphous at Phosphate Hill in 2018.[77] Whilst it was suggested that Mr Tompkins invented the job offer that he was sounding out the plaintiff for in 2022, Mr Tompkins flatly rejected this. Moreover, my impression of Mr Tompkins was that he was a truthful witness and was not there to advocate for the plaintiff. Mr Tompkins made it clear that he did not discuss the contents of his affidavit with the plaintiff, and it came about as a result of contact with the plaintiff's solicitor. I accept Mr Tompkins' evidence.

1. It was submitted on behalf of the plaintiff that:

(a) The plaintiff has a limited scope to 'reinvent' himself in a second career and thus is only suited to entry level roles. The Court should adopt a realistic approach when considering whether work, or any particular job, might constitute 'suitable employment'.

(b) The Court should find that the plaintiff was, at all relevant times, ready, willing and able to work on a FIFO basis. The plaintiff's evidence as such is corroborated by his work history, especially by two periods of work at Phosphate Hill in 2018, which demonstrates a desire to return to working on a FIFO basis.

(c) A number of alternative scenarios were suggested in relation to 'without injury earnings' and the Court should find that the 60% figure is in the range between $109,075 and $132,000 on the basis that:

(i) $220,000 (-$250,000) x 60% = $132,000 (Tompkins)

(ii) $200,000 x 60% = $120,000 (Multiplex)

(iii) $181,918 x 60% = $109,150 (pre-injury, pre-breakup in 2016)

(iv) $181,792 x 60% = $109,075 (post-breakup, 7 weeks of work for M Maintenance Services Pty Ltd)

(d) It was submitted that the Court should conclude that the plaintiff's 'but for' injury earnings capacity is no less than $181,792, making the 60% figure no less than $109,075. The plaintiff's 'with injury' earning capacity is comfortably less than $100,000, and there is no job identified, when assessed realistically, which would result in a higher salary.

(a) The Court should accept that the plaintiff has the 'with injury' capacity to perform full-time work in the roles of an estate agent and an insurance claims officer.

(b) When assessing a figure to represent the notional earnings of each of these roles, the Court should not discount or prefer lower figures in recognition of the plaintiff's reported pain levels. Such symptoms were considered by the Panel and were incorporated in its ultimate opinion.

(c) When assessing a figure to represent the notional earnings of each of the roles, the Court should not discount or prefer lower figures because of the plaintiff's requirement to wear 'open-toed footwear'. The evidence in various labour market analysis reports and Ms Dennehy's vocational assessment report does not permit any such allowance.

(d) When assessing and arriving at a figure to represent the notional earnings of each of the identified roles, the Court should not discount or prefer lower figures to make allowance for the plaintiff's need to retrain. Section 325(2)(g) of the Act expressly requires the Court to assess the plaintiff's notional 'with injury' earnings 'after rehabilitation or retraining'.

(e) The Court should find that the plaintiff is a very good candidate for retraining into either an estate agent or insurance claims officer noting that his age is not an impediment, he has previous experience working as a real estate agent, he successfully attained a Certificate IV in Occupational Health and Safety, he has good computer skills, good communications skills and a range of positive personal attributes.

(f) The fact that the plaintiff has chosen not to undertake appropriate retraining or embarked in a career that the Panel has determined him suitable for, is not a basis for the Court to prefer the lower end of any salary band.

(g) The Court should assess the plaintiff's 'with injury' earnings working as a real estate agent on the Sunshine Coast at $4,094 gross per week or $212,888 per annum relying on Ms Henriksen's report. If required, the defendant's fallback position was that the figure proposed by Ms Dennehy of up to $90,000 per annum is appropriate.

(h) In relation to the role of an insurance claims officer, it submitted that the evidence supported a finding that the appropriate figure for an insurance claims officer is no less than $90,000 per annum.

(i) Therefore, the without injury sum the plaintiff would need to exceed to overcome the 60% threshold is:

1. $212,888 / 60% = $354,813
2. $90,000 / 60% = $150,000

What is the income which most fairly reflects the Plaintiff's without injury earnings?

1. Section 325(2)(f) of Act requires the Court to make a finding as to the gross income which the Plaintiff was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred.
2. The question of what constitutes an assessment that 'most fairly' reflects the earning capacity of a worker absent the subject injury was considered by Forrest J in Acir v Frosster Pty Ltd:[78]

"Usually the inquiry in determining the figure will be restricted to questions of promotion, increase in salary or loss of employment opportunity - all being said to by relevant to determining the figure that most fairly reflects the worker's earning capacity without injury. ...the fixing of the gross income which most fairly reflects the earning capacity is a limited inquiry not to be confused with that made in a damages claim. It, I think, is confined to those matters which go to the practical exercise of that capacity, not its diminution by outside events. In that regard I have in mind those matters referred to by the Minister in the Second Reading Speech, namely, increases/decreases in wages and other employment opportunities."

1. In The Herald and Weekly Timed Limited & Anor v Jessop, the Court of Appeal stated:[79]

"...a worker's earning capacity represents a capital asset which, when exercised, produces income from personal exertion. It follows that a worker's ability to earn income through personal exertion depends on the nature and quality of the worker's capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker's physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours the worker is willing to work (Emphasis added)."

1. The plaintiff deposed that before his injury, and in particular between 2011 and 2017, he earned a solid income from FIFO work.

(a) The plaintiff's declared income in the 3 years before the injury was as follows:[80]

1. The plaintiff also received the amount of $12,225.75 by way of weekly payments of compensation in the financial year ending 30 June 2019, not included in the total above.
2. The plaintiff explained that from October 2017, he decided to take a break from FIFO work because he wanted to prioritise his long-term relationship. The relationship however ended towards the end of 2017 and in approximately March 2018 he decided to return to FIFO work and progressively work towards full-time FIFO work. I accept this explanation.
3. Leading up to his injury, he worked on a number of different contracts which he was able to secure through word-of-mouth, namely:

(a) Between March and May 2018, he worked as a forklift fuel truck driver from Monadelphous at Incitec Pivot in Phosphate Hill, Queensland. His group certificate for income received between 10 March 2018 and 4 May 2018 records a gross payment in the amount of $24,472;[81]

(b) Between May and August 2018, he worked for a labour hire company, MC Labour Hire; and

(c) Between September and December 2018, he returned to work as a forklift operator for Monadelphous. Gross payment received for the period between 1 July 2018 and 31 March 2019 was $46,252.[82]

1. In December 2018 he was offered a new contract due to start in June 2019 with expected earnings in the vicinity of $200,000 per annum. His subsequent work record and behaviour in taking on short-term contracts and working for labour service companies, and performing different jobs in different roles, is entirely consistent with his stated intentions given his desire to be available to take up the lucrative position.
2. I accept the plaintiff's evidence that but for his injury, he would still be working for Multiplex on the Queen Street Pier project and earning a significantly higher income. He also said that had he not sustained any injury he would have been able to secure ongoing employment as a FIFO worker and continued performing FIFO work until his retirement. He had been robbed of his high earning capacity ability by virtue of the injury. I note in this regard that the plaintiff's resume identifies Mr Tompkins and Mr Matt Williams from Monadelphous as referees. This ties in with the evidence given by Mr Tompkins that he worked closely with a couple of people from different companies and generally he would be approached to see if he could source personnel for the jobs. It would appear that the FIFO industry is one where work is obtained through word-of-mouth and contacts, and positions are obtained through reputations earned.
3. I reject the defendant's submission that the claimed job offer made by Mr Tompkins concerned a role which was to commence in June or July 2022, and that it is outside the relevant period and cannot be considered in the analysis, given the 3-year window to each side of the injury date spans from 18 April 2016 to April 2022. The discussion with Mr Tompkins took place in early 2022 and Mr Tompkins was canvassing the plaintiff for a position which attracted annual income between $200,000 and $220,000 per year. Evidence of prospective earnings outside the six-year window may be received if it sheds light on the worker's likely earnings within the six-year window.[83]
4. I reject the submission that the plaintiff's role at B&M Slots Pty Ltd was temporary and that he would have remained at B&M Slots Pty Ltd had he not suffered injury. The defendant relies on the earlier periods of employment at B&M Slots Pty Ltd in which he had lengthy periods of employment namely between 2001 and 2003 and between 2008 and June 2010. However, these periods of employment predate the plaintiff commencing with Lendlease in January 2011 and pursuing FIFO work consistently over the ensuing 6 to 7 years.
5. The defendant is critical of the lack of documentary corroborating evidence to support the Multiplex position and submitted it would be an absurdity for there not to be any evidence of such a job offer being made. It emerges however from the evidence of Mr Tompkins that the FIFO sector is dominated by individuals who are known to one another and work together and recommend each other to fill positions. He confirmed that arrangements made in the FIFO sector are not documented until close to commencement. I accept Mr Tompkins' evidence in this regard.
6. The defendant criticises the lack of precision of what the plaintiff would have earned and that it is not exact and unreliable. The defendant also seeks to submit that I should take judicial notice that the job in Brisbane would not be as well remunerated as a FIFO role. There is no basis for me to reach such a conclusion and indeed flies in the face of the evidence of the plaintiff. I do not accept that the plaintiff's tax returns over the preceding 4 years before injury show a progressive decline of income. Income for the 2015, 2016 and 2017 years vary by about 10%. There is a decline in the 2018 year which aligns with the plaintiff's evidence that he decided to stop FIFO work to prioritise his relationship. Even so, his earnings were over $100,000 for the 2018 financial year and he earned $65,843 with UGL in that financial year, for the period between 1 July 2017 to 18 October 2017, which is a period of 15.5 weeks. This represents an annualised income of $220,000. In his employment with Monadelphous between 10 March 2018 and 4 May 2018, a period of eight weeks, he earned $24,472. This represents an annualised income of $159,068. 60% of this figure is $95,440.80.
7. I accept that the plaintiff at all times was ready and willing and able to work on a FIFO basis. The plaintiff urged that I accept that his 'but for' injury earning capacity is no less than $181,792, making the 60% figure no less than $109,075. In light of the plaintiff's actual earnings with UGL between July and October 2017 and Monadelphous between March and May 2018 as well as the totality of evidence in relation to the potential of the plaintiff to earn amounts in the vicinity of $200,000 per annum, I accept that submission.

What is the Plaintiff capable of earning in suitable employment?

1. The plaintiff's work history is dominated by skilled manual employment, and I accept that his transferable office skills that he has are stale. I also accept that he has limited scope to reinvent himself at his age as well as limited scope for advancement in a second career, and that he is only suited to entry level roles.
2. I set out the schedule of jobs identified as constituting suitable employment, and associated wage rates:

Claims Adviser Shielded Insurance Brokers $1,635 weekly

1. I do not accept the figure posited by Ms Henriksen in the IPAR report dated 6 June 2024 that research concludes that individuals of the Sunshine Coast have the prospect of making $4,094 per week. A review of the defendant's Exhibit 3 notes that this estimate is based on five salaries submitted anonymously to Indeed (a job search website) by real estate agent employees, users, and collected from jobs posted on Indeed in the previous 36 months.
2. Whilst it is evidence specific to the Sunshine Coast, it is not a useful guide to understanding the true salary of a person engaged as a real estate agent in that region. Firstly, it is compiled by five anonymous users reporting such an income. In those circumstances it is highly selective, could be prone to exaggeration, and only an indication of the five individuals who took the effort to submit anonymously their earnings. Secondly, Ms Henriksen refers to labour market research in the real estate industry sourced from labourmarketinsights.gov.au. According to the latest data in the five years from November 2021 to November 2026, the number of workers in the industry is likely to grow strongly and reach 119,800 by 2026. A reliance on just five reported outcomes is likely to give a skewed result. The research also revealed that the average full-time worker worked an average of 46 hours per week in their main job. Again, nothing is known of the five reported individuals and the number of hours worked to achieve such high incomes. In contrast, the figures obtained from job advertisements or the real estate agents canvassed are more likely to give a true indication of actual earnings.
3. To the extent that the figures suggested do not include commission, I note that the salary ranges put forward by Ms Henriksen for a real estate agent job with Leading Realty Sunshine Coast is less than the range suggested by Ms Dennehy from KINNECT. The range of income suggested by Ms Dennehy likely includes a commission component. Moreover, work in the real estate industry is not just in sales of property but also includes management of rental properties. Such roles are less likely to be dependent on commissions.
4. Although both Ms Dennehy and Ms Henriksen have suggested other roles which may possibly fall within the plaintiff's capacity, my focus is on the jobs identified by the Medical Panel as suitable employment. Although the medical examiners whose evidence I have referred to above canvassed what might constitute suitable employment, I am only concerned with the Medical Panel's opinion as to what constitutes suitable employment for the plaintiff. Of the actual positions identified by IPAR (ignoring the $4,094 figure which was sourced from Indeed which I do not accept is an appropriate 'without injury' figure for reasons already discussed), none exceed the 60% amount of $109,075.
5. I am satisfied that the plaintiff's with injury earning capacity is significantly less than the 60% threshold figure.
6. The plaintiff's claim for leave to commence proceeding for pecuniary loss damages is made out on the evidence.

1. It follows that I accept the plaintiff should be granted leave to bring proceedings for loss of earnings damages.
2. I will grant the plaintiff's application.
3. I will hear argument with respect to costs.

[1] Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at [70]

[2] Transcript ('T') 63, Line ('L') 27-31

[6] Affidavit of Kris Nixon affirmed on 6 September 2023, PCB 32 [10]

[12] Affidavit of Kris Nixon affirmed 23 June 2022, PCB 16 [9]

[22] Affidavit of Bevan Thompkins affirmed 21 September 2023, PCB 43

[24] Ajinvan Pty Ltd v Laurie Fry [2001] VSCA 148; Lianos v Inner & Eastern Health Care Network [2001] VSCA 53; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at [59], [62]; Rossington v Hungry Hampers Catering [2024] VMC 6 at [7]

[78] [2009] VSC 454 at [167], [173]

[79] [2014] VSCA 292 at [53]

[83] Roleff v Chubb Insurance Company of Australia Pty Ltd [2011] VSCA 21 at [31]