Shea v Victorian WorkCover Authority [2026] VCC 10

4. The body function said to be impaired is the right knee.[1]
5. The plaintiff bears an overall burden of proof upon the balance of probabilities.
6. By s325(2)(b) of the Act, the impairment must have consequences in relation to pain and suffering which:

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

7. I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8. Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
9. In this application, where there is a pre-existing right knee condition, I must consider what the evidence discloses as to the plaintiff's prior knee condition and determine whether the additional impairment resulting from the incident is serious and permanent.[2]
10. In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
11. Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12. Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[3] Haden Engineering Pty Ltd v McKinnon,[4] Petkovski v Galetti[5] and Seckold v Transport Accident Commission[6] in reaching my conclusions.
14. The plaintiff relied on three affidavits, affirmed 18 December 2024 and 16 and 25 October 2025. He was cross-examined. He also relied on an affidavit of his friend, Scott Callahan, affirmed 19 October 2025, and an affidavit of his son, James O'Shea, affirmed 18 October 2025. Also in evidence were medical reports and other material. I have read all the tendered material.
15. Causation was the central issue in this application.[7]
16. From the defendant's perspective, "on any view, the plaintiff had a quite clearly and severely degenerate knee operated on in 2010 with problems thereafter". The plaintiff came to court with no medico-legal evidence from an orthopaedic surgeon. The height of his supporting medical evidence was occupational physician, Dr Horsley, who considered the plaintiff would have had to have knee surgery anyway. That, in combination with the evidence of Dr Wyatt and Dr Menz, "is really fatal to the plaintiff's claim".[8]
17. The plaintiff's case was there was no issue in relation to causation. The plaintiff had suffered the requisite 40 per cent loss of earning capacity and therefore leave should also be granted in relation to pain and suffering.[9]

1. The plaintiff is presently aged fifty-nine, having been born in January 1967 in Daylesford. He left school at sixteen with no qualifications. Thereafter, he worked as a storeman and in customer service. He then moved to Melbourne, where he worked as a machine operator and later as a storeman. From an early age, he had supplemented his income with casual work as a "brickie" or a plumber's labourer.
2. Between 1996 and 2011, he worked in hospitality and completed a hotel management program with Tattersall's in 2004. He commenced work with the employer on about 16 November 2011.

1. The plaintiff underwent a right knee arthroscopy in February 2010, performed by Mr McCullogh, having injured his knee playing Super Rules. The surgery was very successful.
2. The plaintiff started playing Super Rules at age forty (2007) because he loved football. For three years, he trained every week and played every second Sunday during the season.[10]
3. He injured his right knee in 2010 in a knee clash with an opponent. He "obviously" injured some cartilage and had to have it removed with an arthroscopy.[11] He probably stopped playing after the clash. Things then worsened and he had the arthroscopy.[12] He trained with his football team the next season. Also that year, he played basketball in Bendigo but gave it up "because the side fell apart".[13]
4. He lost confidence in playing in Super Rules, which was not "real quick and often other players fell on you". He was scared of re-injuring his knee with the sideways motion.[14]
5. After the 2010 surgery, he thought he only had a week off work. He was then managing a hotel in Castlemaine. It probably took him about a month to get some mobility back at work.[15]
6. He put on a little bit of weight after the 2010 surgery. After he stopped playing football, he thought his weight would have reached about 95 kilograms, but agreed with the heavier weights noted in his medical records.[16]
7. When he started with the employer in 2011, he did six weeks' training at Parkville. There was a lot of paperwork involved and also a week of physical training.[17] He never had any issues doing the physical training.[18]
8. On occasion while working for the employer, he injured his right knee when carrying out "restraints". He was required to fill out DINMA reports when there was any injury or a near miss. He did not complete these forms because he had suffered a significant knee injury in these incidents.[19]
9. He injured his right knee in "restraint" incidents on 15 July 2012, February 2015 and then a third incident a couple of months later, on 17 April 2015, when he injured his right knee, lumbar and left wrist restraining a client in a three-man takedown. He did not have any treatment for his right knee, or take time off work in relation to any of those restraint incidents.[20]
10. In early 2021, he hurt his right elbow in a "take down".[21]
11. He always worked for the employer as a casual. He never applied for a change to permanent status. On average, he worked forty hours a week. He earned in excess of $80,000 towards the end of his period of employment.[22]

1. On the said date, the plaintiff suffered injury in the Campaspe Unit at Malmsbury Youth Training Centre ("MYTC"). He was removing plastic chairs by reaching over the top of other furniture and twisting to his right, when his right foot caught on something and his right knee buckled. He fell right over onto his back, suffering a sharp pain in his right knee ("the incident").
2. He verbally reported the incident to the acting manager and completed a computerised incident report that night.[23]
3. He was reluctant to make a fuss and thought he would get better. The pain and swelling subsided, but the pain would never go away altogether. He thought of himself as a stoical person. His employment was casual and he feared, if he took time off, duties would be withdrawn and he could lose his job. Ultimately that proved to be the case.
4. He was not a man who went to the doctor. Before 2010 he had never had a sick day. The incident was different to the other incidents - "All the other times (he) left it and it had come good, so (he) assumed the same thing would happen."[24]

1. He did not recall reporting the incident injury to a medical practitioner before 19 July 2021. On that date, he saw Dr Holly Lewis at Springs Medical in Daylesford ("Springs").
2. By that time, his colleagues had remarked on him limping at work. When he saw the doctor, he complained of both right knee pain and a painful right elbow. He was taking Nurofen. He subsequently made a recovery from a tennis elbow, but his right knee proved to be more troublesome.
3. He did not have a regular general practitioner ("GP") at Springs as he did not go to the doctor regularly.[25]
4. He attended Springs on 11 January 2021 after being advised by a nurse at work that he had high blood pressure.[26] He agreed he did not mention his knee then because he attended the GP for his blood pressure. "They" only look after one thing at a time.[27] Why would he complain about his knee pain if he was there for his blood pressure?[28]
5. He agreed he did not complain of knee pain when he next attended Springs ten days later, on 21 January 2021. It was not true he did not do so because there was then nothing out of the ordinary with his knee. It was a 15-minute consult and "you are only allowed to have one thing assessed". He denied he did not complain because he had no knee problem; he was limping at the time:[29]

"Physical injuries I never really took that much - unless it was something really, really major where I couldn't handle it with painkillers or Nurofen cream or something like that, well, probably would have, but at that stage I was limping, and I was still coping with what I was using."[30]

6. He saw a nurse at Springs on 23 May 2021 for a COVID injection.
7. He next attended Springs on 19 July 2021 as he was getting a cough because of his blood pressure medication. His GP then noted "Reports right tennis elbow and right knee troubles".[31] He accepted he was guessing that he only talked about his elbow because that was the fresh problem - "Like I said, I was actually dealing with the knee pain with the Nurofen and cream."[32]
8. He saw Dr Falak Naz at Springs on 5 August 2021, who arranged an ultrasound of his right knee and right elbow and an x-ray of his right knee.
9. Dr Naz's note "work injury (right knee pain) few years now worsening" was a "misinterpretation". She is a very hard person to understand. The knee pain was not for a couple of years; it was from the incident. By that date, his knee had begun to worsen.[33] He agreed by August 2021 he knew he had a worsening problem with his right knee:

"... I think I was instructed, or encouraged by my supervisor to go and get it looked at, because it was beginning to slow me up quite a bit considerably."[34]

10. He submitted a WorkCover claim on 18 August 2021 because he needed treatment and shortly thereafter, on 27 August 2021, he saw Dr Stewart at Springs. This was the first time he had told any doctor that his knee problem was incident related.[35]
11. The plaintiff was referred by Dr Stewart to Mr David Mitchell, orthopaedic surgeon, who he saw on 27 September 2021. By that time, the plaintiff was incapable of squatting or kneeling on his right knee and was struggling to walk very far. Mr Mitchell arranged an MRI scan.
12. On re-examination by Mr Mitchell on 8 November 2021, the plaintiff's knee was no better, having recently given way. Mr Mitchell recommended an arthroscopy, which took place on 8 December 2021. Some improvement thereafter was short-lived, despite physiotherapy, which the plaintiff underwent at Central Highlands Rural Health.
13. Mr Mitchell performed a right total knee replacement ("the knee replacement") on 7 September 2022. There were several post-operative reviews and the plaintiff received further physiotherapy. He was discharged from Mr Mitchell's care in November 2022.
14. Both surgical procedures were funded by WorkCover, but he had to wait for a year for the knee replacement because "they were arguing with the surgeon" why he did a scope when the plaintiff required a replacement.[36]
15. Since the knee replacement, his right leg had been troubled by recurrent cellulitis, which he had been told could have nasty consequences if it got into his knee.
16. As at December 2024,[37] right knee pain was present to a varying degree about 90 per cent of the time. His knee started to ache when seated, particularly when driving. It ached when he walked. He was likely to get a sharp stabbing pain like an electric shock when he attempted to cross uneven ground. Standing on level ground was limited to about an hour and on a slope, about half-an-hour. Earlier that year while holidaying in Vietnam when he had to queue for immigration at the airport for two hours, his knee became so painful he thought he would collapse.
17. His knee clicked with movement, but not every day. It swelled. There was a bruise on the inside of his calf most of the time. There was an area of numbness around the right knee down to his shin and ankle, with the numbness extending about halfway around his calf. Two or three times a day, his calf became painful, so he massaged it. His calf could also hurt at night.
18. Every night he experienced cramping in his knee, with pins and needles and an electric-shock like sensation and he was repeatedly woken by knee and/or calf pain. He did well to have two hours of unbroken sleep, despite putting a pillow between his knees.
19. His mobility was compromised and he could not run. He walked with a limp. He could walk for up to about thirty minutes on level ground, but slopes were more difficult and he avoided uneven ground.
20. He had trouble with stairs and would not attempt to climb a ladder. He could not squat, which restricted his lifting ability. He could not kneel on his right knee.
21. He had to sit to put his pants on and struggled to tie his shoelaces. He managed domestic chores if he remembered his limitations. He could push a petrol mower for about half-an-hour and if he needed more time he would take a break. He left heavy gardening to his son, who lived with him.
22. For twelve or more years he had travelled to Vietnam at least annually, having an interest in military history and in the war. He had just come back from a month-long trip to Vietnam. While there, he got around on a scooter like a Vespa. It was a step through, "you just walk straight through it".[38] He did not have to particularly pivot in traffic. He was staying at the beach not in a city like Ho Chi Minh.[39]

1. The plaintiff continues to see Dr Naz at Springs. She prescribes Panadeine Forte, which he takes for knee pain, using a packet of twenty about every one to two months. He takes one Panadeine Forte tablet every three to four days.[41] He also continues to take medication to control blood pressure, cholesterol, diabetes and reflux.
2. About 90 per cent of the time he has right knee pain to a varying degree. About two to three times a day his right calf becomes painful, so he massages it. He has numbness around the right knee, down the shin to his ankle. His right knee clicks when he moves it, but not every day. His knee is regularly swollen and it can lock, although rarely. Sometimes the inside of his calf is bruised.
3. Issues with sleep due to knee/calf pain continue.
4. His physical mobility is compromised by his knee injury. He cannot squat or kneel on his right knee anymore. He cannot run. He walks with a limp, the extent of which varies. If he sits down and does not move his knee around it really aches. He prefers not to drive for more than 30 to 40 minutes at a time, although he can start getting sore earlier than that. His standing tolerance is limited by right knee pain.
5. His right knee has changed the way he gets dressed and what clothes he wears. In the middle of winter, some days he gets around in thongs because he cannot bend down to put shoes and socks on because his knee pain sort of stops him from extending that far.[42]
6. He does his own housework and gardening by pacing himself and having breaks. He does his own shopping and pushes the trolley. When he unloads the groceries from the car, he lifts them onto the front veranda and then takes them in one at a time. He does not bend, but he just grabs them and picks them up.[43] He does his cooking and cleaning and "all that sort of stuff". He staggers out his various domestic activities and driving over a week or so.[44] He does not do everything in one day, he spreads it out, "because it is just that same sideways twisting motion".[45]
7. Before he hurt himself, cutting the grass would only take forty-five minutes and now he staggers it out over three or four hours and then he has to stop. There is nothing he can do about it.[46]
8. He is not as active as he once was and now weighs around 150 kilograms. Attempts at trying to lose weight bike riding, doing weights and using a rowing machine had been unsuccessful because of knee pain. Kicking in a froglike motion doing breaststroke causes his knee to click and increases his pain. He cannot cope with playing lawn bowls, having tried three times in 2023. He can no longer walk long distances with his son.
9. Overall, he is not the bloke he used to be. He gets frustrated, bored, tired and can be irritable.
10. Although he can still drive around, he prefers not to drive for about more than thirty to forty minutes without a break. He had increased right knee pain when driving to a medico-legal appointment with Dr Doig. Knee pain increased the longer he remained seated. Living in country Victoria, his inability to drive unrestricted distances was a real handicap. It is a forty-five minute drive from Hepburn to Ballarat.

1. As at December 2024, he was unaware of suitable local employment opportunities in Daylesford, a tourist centre. Customer service would require him to be on his feet. Labouring work would be beyond his capacity. He is unsuited to farm labouring or working as a bricklayer or plumber, or any other trade. He would struggle to commute to McCain Foods and Mars Wrigley in Ballarat, and, moreover, his limited standing and walking tolerances meant factory work was unsuitable.
2. He was then monitoring SEEK and a local community noticeboard in the hope something suitable would come up. He made enquiries of Daylesford business owners, but none of whom he spoke to could offer suitable employment. None of the jobs he had done after leaving school in 1983 would now be suitable.
3. He would have liked to continue working at Malmsbury had he not been injured, and when it closed he would definitely have been interested in working in the same role somewhere else. If that had not eventuated, he would have looked for jobs in the local area, relying on his past experience and skills.
4. He has kept his eye on the job market without success.
5. The employer ceased youth justice operations at Malmsbury in about December 2023. He believed, had it not been for his injury, he would have remained working until then, benefiting from the incentive payments that he was informed, and believed, were offered to staff to prevent them from jumping ship prior to the facility's closure. Further, he believed that, with the closure, the employer would have offered him other work. He believed that former youth justice workers from Malmsbury were now employed as site security to prevent the premises from being vandalised, and others had been redeployed elsewhere. If those opportunities had not been offered, he would have returned to hospitality and/or labouring. He could not remember being offered retraining post injury by the employer or by Allianz, or any other associated agency.
6. For some time rumours about MYTC being recommissioned have circulated locally. He believes those rumours have proven to be well founded - an ABC internet article on 28 October 2025 that Malmsbury will be re-opened in April 2026 and that 114 staff will be recruited to work there. Given his lengthy work experience there, but for injury, he would apply and likely be accepted in a youth justice worker role and perhaps in a supervisory capacity.[47]
7. He has been to see a few people around town Daylesford more than Hepburn looking for a little bit of work but he had not had any luck. He went to two or three service stations for "console sort of stuff", but he did not think his knee would be able to handle unloading trucks.[48]
8. He agreed he could do some work behind the counter. He could not say whether he could work at a bench. He would have asked about the jobs at the BP servo job and the tyre and lawnmower place about a year ago.[49]
9. His weekly payments stopped in 2023. He has too many assets to quality for Centrelink. Money in the bank is his source of income.[50]
10. He would be looking for work if a job came along and if he had some ability to do it, he would probably have a go at it. He could not actually go and see an employer and say he would be right to work four days a week or five days a week. After a day he might struggle to get around the next day if there was an issue with it.[51]
11. He could not work as a mobile speed camera operator. By the time he drove for forty-five minutes to Ballarat for work his knee would be sore and swollen. Working as a meter reader, he did not know how Nabenet thought he was going to get around the neighbourhood on one leg.[52]
12. He did not think he could do retail work, as he struggled with vacuuming and mopping, and that was like sedentary to light work. He does household tasks because he has to as they would not get done otherwise. He could do light sedentary retail work if they were happy for him to sit down or move around when his knee played up.[53]
13. A half-hour drive to work in Castlemaine would be on the cusp of his knee starting to play up. Then, if he had to work as a delivery driver, he would be still driving.[54]
14. He did not necessarily agree he had excellent people skills with all his years in hospitality. He agreed he did not have an issue dealing with people and had ability to sell, depending on the products. However, the job description included stretching, twisting, climbing and lifting may be necessary on an occasional basis. These were activities that were giving him a problem.[55]
15. A job constantly sitting did not help him too much either. If he could sit and stand when he felt like it, he could do a job answering enquiries about goods and services depending on how the knee was "fired up and how swollen it was, and how sore it was".[56] He asked - "where are all these jobs?"[57]
16. In response to the suggestion he had not really tried to get a job, at the end of the day even doing his own things at home - if he mowed the grass he might struggle to get around for the next two days.[58]
17. When it was suggested he did not need to work since his payments had ceased. he said, "Well, I do have money in the bank, yes. I've been pretty thrifty with my savings."[59] He doubted greatly whether he would be capable of working, or that he would be a reliable worker, because his knee just would not allow it.[60]

1. James Shea, the plaintiff's son, affirmed an affidavit on 18 October 2025.
2. On or about the said date, he was not living with the plaintiff but they were in regular contact. He could recall the plaintiff telling him he hurt his right knee when moving some chairs at work. He could not recall exactly what he told him when he told him this, but it was around the time that it happened. He recalled that the plaintiff's knee slowly became worse over time.
3. In about June 2021, he moved in with the plaintiff and had lived with him until recently when he got a job as a carpenter in Melbourne; however, he still spent most weekends at the plaintiff's place.
4. From his observation, the plaintiff limped pretty much all the time, especially in the mornings, and had limited standing, sitting and walking tolerances. He did things around the house slowly. He is the sort of person who will grin and bear things, although at times he has to have rest because of his knee.
5. The plaintiff has slight leg cramping when in the car for a while.
6. In the couple of years leading up to the plaintiff's injury, they used to regularly walk to a local lake about two to three kilometres from home, but they have not done so since the plaintiff was injured.
7. The plaintiff's ability to do things has significantly changed for the worse since his injury. He tried lawn bowls but was absolutely stuffed for two days afterwards.

1. Scott Callahan affirmed an affidavit on 19 October 2025. He has known the plaintiff for over twenty-five years.
2. He could recall the plaintiff spoke to him on the phone in about October 2020 and told him that he had recently hurt his knee at work moving chairs.
3. During a road trip to Mount Gambier in March 2021, he recalled the plaintiff was not walking well and was limping and walking slowly. In contrast, when they had travelled to Vietnam in 2019, the plaintiff was walking around the streets without any problems.
4. The plaintiff is less mobile than he used to be and has difficulty with household chores. When the plaintiff walks he appears to be in pain. He would have been happy for the plaintiff to come and stay at his place in Brunswick West if the plaintiff had been offered work at the employer's Parkville facility.

1. Dr Naz has provided a number of reports from March 2024 to October 2025 with the most recent Certificate of Capacity dated 28 October 2025.
2. In her March 2024 letter to the insurer, Dr Naz advised that the plaintiff sustained injury at work in October 2020. A meniscal tear was shown on the MRI. There was a subsequent arthroscopy with minimal improvement, physiotherapy then surgery.
3. She listed a range of functional restrictions that should apply to any work the plaintiff is going to do. These were repeated in her October 2025 Certificate of Capacity where she certified that the plaintiff had no capacity for employment as a result of his right knee condition. Restrictions included that the plaintiff could only walk a short distance on level ground and only lift up to 2 to 5 kilograms. He can bend from waist but not knees. No push, pull, carry or lift over 5 kilograms. Avoid squatting, kneeling, walking on uneven ground, prolonged standing, prolonged walking, limited stair climbing, avoid climbing ladders.
4. Dr Naz last reported in October 2025.
5. The plaintiff is still having pain, swelling and difficulties with mobilisation, prolonged sitting, standing and driving. He also had recurrent cellulitis to the right lower leg and ongoing oedema below the right knee. He had gained weight and developed diabetes and hypertension post injury, and this partly contributed to his lack of exercise and inactivity due to persistent right knee pain.
6. The plaintiff suffered a meniscal tear in the incident.
7. She did believe the plaintiff was capable of earning more than $50,566 gross per annum but he needed a job with restriction recommendations outlined by specialists in past, as outlined in his WorkCover certificate.

1. The plaintiff first saw Mr Mitchell on 27 September 2021.
2. The history was "work injury ten months ago carrying stackable plastic chairs, jammed in, lifting over couches, has turned, knee buckled inwards, remained swollen and sore since. Getting worse. Getting harder to exercise. Missing work days. Off on WorkCover at minute. GP doing capacity certificates."
3. In his September 2021 letter to Dr Naz, he advised that the MRI scan demonstrated Grade II to III changes in multiple areas of the knee, the patellofemoral joint and the medial compartment in particular. The MRI report suggested there may be a meniscal root tear on the medial side. It was certainly not subluxated and he was not sure if fiddling with the meniscal roots was going to make this knee much better, but he would show the MRI to some colleagues. On plain x-ray, he wondered if there were loose bodies, but on MRI scan he was less convinced.
4. The plaintiff was hoping that his knee could be rescued arthroscopically. Mr Mitchell thought, though, that being strong, supple and slim were the key treatments. Anti-inflammatories may also have a role. He definitely had to thin the plaintiff down and made an appointment to discuss the matter further, having compared notes with some of his colleagues about whether there was anything reversible with an arthroscopy.
5. Mr Mitchell wrote to Allianz on 29 September 2021 seeking approval for removal of a loose body and probably a lateral release.
6. He advised that a plain x-ray and MRI scan each showed their own bits of pathology, but they included a few loose bodies and a lateral subluxated patella. These, he believed, were the primary pathologies, but there was also some oedema around the medial meniscal root. He imagined at arthroscopy though, he would demonstrate the meniscal root to be intact and not requiring surgery. There were early patches of wear in the knee, but this was an asymptomatic knee before injury and it seemed reasonable to proceed with this arthroscopic plan.
7. Having shown the plaintiff's MRI scan to some of his colleagues, they were more optimistic than him. In fairness, the patella was literally tilted. Removing the small loose bodies and doing a lateral release may actually settle the plaintiff down. He had written to WorkCover seeking approval for funding.
8. At surgery, of course, he would also look at the medial meniscus root, which the MRI scan was worried about. He did not imagine that he would be doing a meniscal root repair while there but would see.
9. In a follow-up letter to Allianz on 8 November 2021, Mr Mitchell advised, while he had been awaiting surgical approval, the plaintiff's knee had caught him out a couple of times, causing him to fall over, and it was best they get on with surgery sooner rather than later.
10. On 29 November 2021, he wrote to the GP, confirming WorkCover approval for the arthroscopy. From an MRI point of view, it looked like the plaintiff was getting an overloaded knee, and particularly the lateral facet of the patella. Clinically, the plaintiff was having both anterior and posterior pain. Clinically, the patella tracked reasonably, but it was a bit irritable along its lateral facet.
11. He carried out a right knee arthroscopy removal loose body chondroplasty on 8 December 2021.
12. On 20 December 2021, Mr Mitchell advised the GP the plaintiff was somewhat better. The pain had substantially been diminished. Anti-inflammatories were helping after a recent flare up. He had planned to see the plaintiff in three weeks.
13. On 31 January 2022, Mr Mitchell advised the GP that the plaintiff was a bit better and somewhat optimistic that he was going to get back to work. Having reviewed the arthroscopic images, he was not really convinced there was something further he should have done at the time of surgery. It became apparent there was a meniscal tear as well, but really there was just degeneration occurring everywhere in the plaintiff's knee and he was overweight. Plans had been made to catch up in mid-March.
14. On 15 March 2022, Mr Mitchell wrote to Allianz seeking approval for the plaintiff to undergo a right total knee replacement.[61]
15. He advised that the plaintiff had made some progress following the arthroscopy, but really not enough. The plaintiff had asked whether doing a meniscal repair would be of help. It would address one of the three problems with the plaintiff's knee, which was not really enough to be optimistic it would get him back to work. He was better off with a total knee replacement.
16. As a surgeon, he could identify the plaintiff's options, both surgical and non-surgical. Weight reduction alone would not occur quickly enough to have any real chance of the plaintiff being back at work this year. While one might accept that he had a pre-existing condition, probably, in retrospect, the injury that occurred while stacking chairs was the meniscal root tear, which had then gone on for him to develop a rapidly progressive osteoarthritis of the knee. Thus he was seeking approval to undergo a total knee replacement.
17. Mr Mitchell performed a right total knee replacement on 7 September 2022. A week later, he advised Allianz that the plaintiff had actually made a good start to his recovery. He was hoping six months from surgery the plaintiff might be able to achieve a full resumption of duties and hours, but this would be assuming the problem in his workplace had been purely his knee injury, and it may be more complex. Training the plaintiff with a view to new employment would be a suitable option to be considered later in the year.
18. On 19 September 2022, he advised the GP the plaintiff had survived his knee replacement and was looking excellent. He had full extension and a little over 90 degrees of flexion.
19. On 17 October 2022, Mr Mitchell advised the GP that the plaintiff was actually looking pretty good following his knee replacement. Of course he had some numbness, and of course it clicked, and of course it was difficult to kneel. The plaintiff had full extension and could flex to 125 degrees, and the knee was stable.
20. He was confident that the plaintiff would continue to improve. He would see him in another six weeks, especially, given he was under WorkCover there would be no doubt as to a bit more grief from them to deal with, but in principle, were the plaintiff doing a job where light duties were plausible, "we" would be getting him back to work shortly, but his workplace is "super difficulty".
21. On 28 November 2022, Mr Mitchell wrote to Dr Naz, advising that the plaintiff was travelling okay, but still heavier than he would want him to be. The plaintiff should continue to ramp up his activity and getting into the pool would be a good idea.
22. Mr Mitchell again wrote to the GP on 20 October 2023. He confirmed the plaintiff was travelling well following surgery, but he was getting cramping in both legs with substantial activity and his weight remained problematic, with an BMI of 40. X‑rays looked great. The plaintiff was young enough that a follow-up in another five years seemed appropriate, but if there was cramping in his leg, he might have to check up with the GP.

MRI scan of the right knee - 27 September 2021

"Findings: Normal joint fluid and bone marrow signal.

Intact ACL, PCL, MCL, posterolateral corner structures and extensor mechanism.

Medial Compartment : Broad high grade, probably partial thickness, chondral ulceration at the weightbearing surface of the femoral condyle. No bone marrow oedema. Maintained tibial plateau articular cartilage.

Free edge fibrillation of the posterior horn of the medial meniscus. No meniscal tear elsewhere. Intact posterior root ligament with bone marrow oedema at its attachment.

Lateral Compartment : Focal high grade, probably partial thickness, chondral ulceration at the medial edge of the tibial plateau. No bone marrow oedema. Maintained femoral condyle articular cartilage.

Intact lateral meniscus.

Patellofemoral Joint : Longstanding patellar maltracking with lateral patellar angulation and subluxation. Broad high grade, in part full thickness, chondral loss at the trochlear articular surface. Minor bone marrow oedema. Extensive multifocal high grade chondral ulceration at the patellar articular surface. No bone marrow oedema.

Conclusion :

1. Bone marrow oedema at the tibial attachment of the medial meniscus posterior root ligament raises the possibility of avulsive injury. No displaced or unstable meniscal tear is identified. 2. Tricompartmental degenerative chondrosis."

1. Dr Doig examined the plaintiff in April 2024 for the purposes of an impairment benefit assessment.
2. The plaintiff then complained of constant low grade right knee pain which increased with exercise. He was not however requiring analgesics.
3. Dr Doig had available a pre-operative weight-bearing x-ray of July 2022 which revealed a mild reduction within a medial compartment of 3-millimetre cartilage interval.
4. The plaintiff told him while working for the employer he suffered injury to the right knee retrieving some chairs. When he was twisting his body to exit the room, he suffered acute knee pain as a result of the torsional mechanism and fell backwards on some furniture. He reported the incident and tried to continue working.
5. The plaintiff had suffered a previous injury playing senior Aussie Rules in 2010, requiring arthroscopy with a good outcome.
6. Post the incident, as his condition was failing to improve, the plaintiff saw his GP. He worked for about six months after the injury but had been unable to return to employment post-surgery and his position had now been terminated.
7. The diagnosis was a soft tissue injury to the right knee with aggravation of pre-existing degenerative change on a background of a previous injury requiring arthroscopic surgery.
8. The plaintiff continued to suffer from functional restrictions. His prognosis was poor with respect to returning to physically demanding employment. The clinical presentation was consistent with the workplace aggravation and subsequent surgery.

1. Dr Slesenger examined the plaintiff on the insurer's behalf in September 2023 to assist in making a decision about ongoing weekly payments.
2. The plaintiff described the incident injury. He did not seek medical help, because he anticipated the symptoms would resolve. The symptoms did not resolve and he continued to self-manage. However, within about nine months, the symptoms had deteriorated. The plaintiff had difficulty squatting, standing, weight bearing on the right side and difficulty walking on uneven ground. As a result, he reported the injury to his GP and was referred for investigations, and ultimately the specialist, Mr Mitchell.
3. Post knee replacement surgery, the plaintiff mobilised slowly and saw a physiotherapist.
4. On examination, the plaintiff described residual right knee pain despite treatment and rehabilitation. The pain was global over the right knee and had associated restriction to the range of knee movements. It occasionally swelled but it did not lock.
5. The plaintiff had had a right knee arthroscopy fourteen years ago due to a football injury. There was no residual impairment, he was able to return to football.
6. The plaintiff advised he remained at work on normal duties for about nine months, although struggled with the job demands towards the latter part of his employment and he eventually ceased work due to persistent symptoms.
7. On examination, the plaintiff walked with a pronounced right-sided limp. There was stiffness and restricted range of movement.
8. The diagnosis was soft tissue injury; aggravation of degenerative disease, for which the plaintiff had undergone surgery, and chronic right knee pain.
9. He did not believe the plaintiff could return to pre-injury duties, as the job demands lay outside his capacity limits. The plaintiff retained the capacity to work with restrictions, including no push, pull, carry or lift over 5 kilograms, avoiding a range of activities.
10. He had taken into account the plaintiff's qualifications, computer skills, his residential location, his past employment history, his driving capacity and his functional limitations. He recommended the plaintiff could return to work adhering to the restrictions suggested, four hours a day, four days a week, graduating back to pre-injury hours over six to eight weeks. The plaintiff would require the support of a return to work co-ordinator to assist with return to work.
11. He advised against the jobs of mobile speed camera operator; console operator; retail assistant; light delivery driver, van or car. The plaintiff could return to work as a customer service representative, adhering to the restrictions, although a job specific worksite assessment was recommended.
12. Having been provided with Nabenet's October 2023 vocational report, he thought the plaintiff could return to work, adhering to restrictions as an information officer, appointment setter, administration assistant and receptionist. He recommended a job specific work site assessment for the customer service representative role.

1. Dr Horsley examined the plaintiff in September 2025.
2. The plaintiff told her the past medical history was that in February 2010, he developed right knee pain after he clashed knees with a competitor in a Super Rules football match. He was assessed by Mr McCullough and underwent a right knee arthroscopy, details of which were then not available.
3. In 2010, the plaintiff was working as a bar manager at the Cumberland Hotel. Post surgery, he was off work for about eight to ten days, given exercises, but did not have any physiotherapy and later returned to footy training but never played again, but played basketball for a season.
4. The plaintiff had gained considerable weight, weighing 110 kilograms pre-injury and currently 140 kilograms.
5. A number of incident reports from the employer detailed knee injury suffered by the plaintiff when doing restraints - 15 July 2012, 17 February and 17 April 2015. The plaintiff advised he always remained at work following the incidents. He was caring for his young son, he needed the job and needed the flexibility.
6. The plaintiff had been off work since the middle of 2021, nine months after the injury, when he was no longer able to cope with the level of discomfort. His level of limping had increased and it was noticed by his supervisor and operations manager and he was told to go to the local doctor, who put him off work.
7. There was an offer of a return to work at the Cherry Creek Youth Justice Centre before his employment was terminated in June 2023 prior to the closure of Malmsbury, but the travel distance was too far.
8. The plaintiff currently spent his days at home, self-pacing with his activities of daily living and he did a little gardening. He was quite restricted.
9. When he joined Malmsbury, he did a range of assessments, including a physical examination, and gained a doctor's report from his GP.
10. The plaintiff put in a verbal report of the incident and then completed a computerised report the same night. He did not make a fuss. He thought his knee would get better. He needed the casual employment. He needed to be able to take time off to look after his son. Unfortunately, his right knee condition did not settle, it continued to worsen, and he saw Dr Lewis in July 2021.
11. Clinically the plaintiff had an antalgic gait, favouring the right knee. His knee was diffusely tender. It was not unstable.
12. The September 2021 MRI scan confirmed Grade II to III changes in multiple areas of the knee, the patellofemoral joint and the medial compartment in particular. It suggested a meniscal root tear. It certainly was not subluxed. She noted that Mr Mitchell was not sure that fiddling with the meniscal roots was going to make them mend better and he wondered if there were any loose bodies as he was not convinced on MRI.
13. The plaintiff underwent a right knee arthroscopy on 8 December 2021, following which he had a poor response, and a right total knee replacement was undertaken in September 2022.
14. The plaintiff reported intermittent right knee pain and it could be pain free at rest. He had pain 50 per cent of the time on average. It was aggravated with prolonged sitting, walking and dynamic standing. He could experience discomfort even when he sat still. There was no giving way, but his right knee did lock on occasions.
15. On the basis of his functional tolerances and physical restrictions, the plaintiff is permanently unfit to return to the critical physical demands of a Youth Justice worker in the Youth Justice system. He is fifty-eight and presents with ongoing disability related to his right knee. Unfortunately, he has come to the end of his working life.
16. The plaintiff would not be competitive in an open marketplace for any role within the physical restrictions she thought were appropriate. He was further disadvantaged by his geographical location in Hepburn Springs, as well as his poor computer-based skills, although he did not have any specific literacy issues.
17. The incident and the clinical presentation were consistent. The plaintiff aggravated the underlying pre-existing degenerative change in his right knee. That knee was clearly vulnerable. He had an arthroscopy in 2010 with a history of loose bodies being removed. The degenerative process had accelerated and then was further aggravated in the incident. Ultimately, it came to total right knee replacement of which unfortunately the outcome had not been ideal. The plaintiff presented with significant and ongoing disability.
18. The plaintiff clearly had a vulnerable right knee. Dr Horsley did not have the 2010 operation report, but the history of loose bodies suggested chondral issues. Arthroscopy in 2021 confirmed a significant MFC flap which is consistent with the description of the injury, and she therefore believed that the aggravation of the right knee being significantly contributed to by the incident.
19. Dr Horsley provided a supplementary report after receiving the 2010 operation notes and other clinical notes. That information confirmed her original understanding of the nature of the 2010 injury, the plaintiff knowing himself that there were loose bodies in the joint at the time of the arthroscopy. The plaintiff clearly had a vulnerable right knee after the 2010 scope with a now confirmed mobile chondral flap over the medial femoral condyle. The degenerative process had accelerated, but it was further aggravated with the incident, with the MRI scan confirming bony oedema and the suggestion of an avulsion injury which was new.
20. Unfortunately, the plaintiff came to a right total knee replacement of which the outcome had not been ideal. Therefore, she believed the aggravation of the right knee in the incident had significantly contributed to the ultimate requirement for a right total knee replacement prematurely, which would have likely occurred into the future anyway, but was likely brought forward by the nature of the incident events.

1. In January 2010, the plaintiff was referred to orthopaedic surgeon, Mr McCullough, by Dr MacCallum in Castlemaine.
2. The surgeon told the GP that the plaintiff presented with longstanding symptoms in the right knee. He still played football. Symptoms became worse about six months ago when his knee clicked during football training and there was marked swelling.
3. The clinical picture suggested a degenerate tear of the right medial meniscus and he would recommend an arthroscopy.
4. Post-arthroscopy, it was noted that the plaintiff did not have a meniscal tear but an area of Grade 2 degenerative change on the medial femoral condyle with mobile chondral flaps and there were also a number of chondral loose bodies measuring up to 10 x 5 millimetres floating around in the joint. These were removed and a chondroplasty was performed. The lateral and patellofemoral compartments were normal.

"R leg ... now settled down so can cease his NSAIDs and anti's

1. There was no further mention of any right knee complaint until 19 July 2021.
2. Having attended Springs three times post-incident for non-related conditions, on 19 July 2021, Dr Lewis reported:

"right tennis elbow and right knee troubles. > > advised not got time to cover both today > > can cover one or other > > ... elbow."

3. Dr Lewis noted "to discuss knee when next attended".
4. The plaintiff saw Dr Naz on 5 August 2021, who reported:

"coming with rt knee pain > > pain from long time > > work injury few years now > > now worsening."

5. On 27 August 2021, a right elbow and knee problem were noted:

"long time R knee injury from work 23/10/20 > > ... > > 3 small loose bodies on knee, > > knee locks once month also gives way > > not improving over 8/12 > > Has continued to work."

1. Dr Naz certified in 2023 and 2024 that the plaintiff had a capacity for suitable employment for light duties only four hours a day (as Dr Slesenger had suggested), initially two weeks then will assess. These restrictions were set out in her most recent certificate of 28 October 2025; however, she now certifies no work capacity.

1. Dr Wyatt examined the plaintiff on 10 April 2025.
2. The plaintiff told her about the incident after which he kept on working doing his normal job but had ongoing knee soreness. He reported his knee pain gradually worsened and by mid 2021, he needed to go to the doctor and was referred for investigations.
3. By way of background, the plaintiff had a right knee arthroscopy in 2008 from a football injury. He recovered from that well and returned to playing basketball and had a good outcome from the arthroscopy.
4. On examination, the plaintiff reported continued right knee soreness. He indicated his knee was always swollen and he was not able to kneel or squat. He was sore at the front, sides and back of the knee. He could walk on flat ground for about fifteen minutes but struggled with inclines for move than five. Standing in one position and sitting and not moving caused knee pain.
5. On examination, the plaintiff walked with a limp protecting his right leg. He was morbidly obese. There was an effusion in the right knee. Flexion was limited to 110 degrees. There was tenderness generally around the knee and mild swelling of the right lower leg.
6. There were no inconsistencies on examination. There was no evidence of pain disorder or functional overlay signs.
7. Following the September 2021 MRI scan, it was concluded bone marrow oedema at the tibial attachment of the medial meniscus posterior root ligament raises the possibility of avulsion injury. No displaced or unstable meniscal tear was identified. Tricompartmental degenerative chondrosis.
8. The 2010 arthroscopy report set out no specific meniscal tear but degenerative changes of early osteoarthritis in the knee at that point. There were also a number of loose bodies that were then removed from the knee.
9. The arthroscopy following the incident also noted more advanced osteoarthritis of the right knee.
10. Unfortunately, the plaintiff did not appear to have had a good outcome from the knee replacement surgery. The 2021 arthroscopy had shown that the osteoarthritis present in 2010 had advanced.
11. The plaintiff has ongoing right knee pain increased with weight bearing and prolonged activity. He manages his home routine by breaking up his tasks into stages, so he is not required to stand for long periods. He is not able to do a lot of heavy work or more demanding work in the garden and mows the lawn in stages. He has a moderate, permanent, residual disability. He is intermittently using Panadol.
12. The diagnosis was osteoarthritis of the right knee resulting in knee replacement surgery to assist in pain.
13. In terms of work contribution:
    • The plaintiff had an arthroscopy in 2010 and there was early osteoarthritis at that point. The natural progression of that condition is gradual worsening.
    • The plaintiff was sore at the time of the incident.
    • Accepting the incident as described, the plaintiff worked for nine months without seeking medical care. In an incident which would materially contribute to his knee problem with known arthritis, one would have expected that to become a significant episode with time off work. In the absence of that, and the problem gradually worsening, it was more consistent with the underlying osteoarthritic problem.
    • Looking at all the information, including contemporaneous records, the history of the incident was insufficient to materially contribute to the plaintiff's knee osteoarthritis which would have developed regardless.
14. The plaintiff told her his knee was not giving him any bother before 2020. He had established osteoarthritis by that time.
15. The work-related aggravation did not still contribute to the plaintiff's current condition.
16. The plaintiff is not fit for his pre-injury role or any work requiring him to be on his feet regularly during the day - kneeling, squatting or working at heights. He can undertake duties where he is mostly sitting with the opportunity to intermittently stand and move. However, there will be limited options for work at the age of fifty-eight with his work background and living in Malmsbury. Travel time to regional centres is about fifty minutes.
17. The roles of mobile speed camera operator role and the customer service representative were suitable, but console operator and retail assistant were not.
18. All the jobs suggested in October 2023 were physically suitable for the plaintiff and fell within his advisory restrictions; however, practically, it was difficult to see him being successful in obtaining such roles in administration without a strong background in that field, considering his geographic location and his age, but they were physically suitable.
19. It was unlikely, in all the circumstances, that the plaintiff will re-engage with work, noting his age, the current state of his knee and his previous work history. Taking all things into account, she doubted that vocational rehabilitation would assist.

Dr Anthony Menz, consultant orthopaedic surgeon

1. Dr Menz reported on the papers on 2 October 2025.
2. He noted the plaintiff claimed to have injured his knee in the incident, first attending his GP on 19 July 2021 - nine months after - who then organised an MRI scan which showed degenerative changes only and no evidence of a traumatic injury.
3. The plaintiff saw his GP again on 27 August 2021. A subsequent MRI scan showed degenerative changes only.
4. Mr Mitchell, orthopaedic surgeon, reviewed the MRI, which showed osteoarthritic changes only, and said there was no indication for surgery and that the plaintiff needed to lose weight.
5. Obviously, Mr Mitchell changed his mind because on 8 December 2021, he arthroscoped the plaintiff's right knee and removed a large loose body. Mr Mitchell noted degeneration on the medial femoral condyle and a root tear of the medial meniscus. Post-operatively, the plaintiff had a lengthy period of physiotherapy without any benefit.
6. Mr Mitchell then undertook a total knee replacement on 7 September 2022. In his request for funding on 15 March that year, Mr Mitchell noted the plaintiff was morbidly obese and that that was no doubt contributing to his osteoarthritis. Dr Menz agreed.
7. Dr Menz noted, however, that Mr Mitchell, as a justification, claimed that the meniscal root tear was caused by the incident and, as a result of that, the plaintiff went on to rapidly develop osteoarthritis. He strongly disagreed with that assessment.
8. Noting the post-operative reviews, at no stage could he find Mr Mitchell had appropriately investigated the plaintiff's painful total knee replacement to determine if there was any obvious cause for it, and whether it was able to be fixed by any further surgery. This was a significant failure of Mr Mitchell's part.
9. Dr Menz totally disagreed with Mr Doig's 2024 view, that it was reasonable to arthroscope the plaintiff's knee because the injury aggravated the pre-existing arthritis in the plaintiff's knee.
10. There was no significant traumatic injury to the plaintiff's knee in the incident, and the only pathology found on the MRI was pre-existing degeneration. There was no indication for arthroscopic surgery following that. The fact the plaintiff had had a poor outcome from arthroscope confirmed the approach he outlined was the appropriate one.
11. Dr Menz agreed with Dr Wyatt, that the history of the incident was insufficient to contribute to the worsening of the knee joint, and also there was a loose body present which certainly would have been pre-existing and not caused by the incident.
12. In terms of the 2021 MRI scan, under "Comments", Dr Menz stated:

"In the medial compartment, there was high grade partial thickness chondral ulceration of the medial femoral condyle. There was no bone marrow oedema. The tibial plateau articular cartilage was intact. > > There was free edge fibrillation of the posterior horn of the medial meniscus, no meniscal tear elsewhere. > > In the lateral compartment, there was focal high-grade partial thickness chondral ulceration of the tibial plateau, no bone marrow oedema. Femoral condyle articular cartilage was intact. > > In the patellofemoral joint, there was longstanding patellar maltracking with lateral patellar subluxation. There was full thickness chondral loss in the trochlear articular surface."

13. Dr Menz's summary of the findings of the 2021 MRI scan made no mention of the "Conclusion" in the MRI report detailing the possibility of avulsive injury.
14. The plaintiff's knee was poorly functioning, acknowledging he was still complaining of severe pain and swelling of the knee joint. He did not believe there had been an appropriate investigation procedure undertaken by Mr Mitchell to determine the source of ongoing pain, if there is any.
15. Prior to the incident, the plaintiff's right knee was severely arthritic, associated with a loose body inside the knee joint. All the arthritis in the plaintiff's knee and the loose body were non work-related conditions. He did not believe the incident caused any significant worsening of the plaintiff's arthritis or tearing of his meniscus.
16. Dr Menz agreed with Dr Wyatt's view that the trauma was insufficient to contribute to the osteoarthritis of the knee and there was a nine-month interval until the plaintiff attended a doctor, indicating very little traumatic injury and symptoms.
17. The other evidence for pre-existing arthritis is that the 2010 scope revealed marked medial compartment arthritis and the natural history and degree of arthritis as it progresses over the subsequent years and after ten years would have been in the state shown on the 2021 MRI.
18. The condition of degeneration in the knee joint does one thing - and that is, it gets worse with time.
19. The plaintiff's pre-existing and non work-related osteoarthritis is the sole cause for his ongoing condition following what was a very minor incident. The need for an arthroscopy and subsequent total knee replacement was solely due to the pre-existing severe non work-related osteoarthritis.
20. In the absence of the incident injury, which was very minor, the plaintiff's osteoarthritis would have continued to progress and deteriorate at the same rate that it did, as the plaintiff outlined.
21. He did not believe the incident had contributed at all to the plaintiff's osteoarthritic knee, or made it worse, or caused any of the pathology outlined in the 2021 MRI or the subsequent scope.
22. The incident did not worsen the arthritis. There were no traumatic lesions inside the knee joint and all the pathology found on the 2021 scope were degenerative and long standing in nature, in particular the loose body.
23. He did not believe the work related aggravation caused any significant deterioration of the plaintiff's arthritis. His arthritis progressed courtesy of the natural history of arthritis,
24. At worst, the effects of the work-related aggravation would have resolved after six weeks.

1. Nabenet, in March 2023, suggested the following jobs as suitable for the plaintiff: packer (light items), light delivery driver, mobile speed camera operator, meter reader and earthmoving plant operator.
2. In October 2023, in order of priority, the following jobs were suggested as suitable employment: customer service representative ($1,499 per week), information officer ($1,218 per week), appointment setter ($1,223 per week), administrative assistant ($1,223 per week) and receptionist ($1,092 per week).
3. Kymberley Sayers, registered osteopath and rehabilitation consultant from Nabenet, provided a vocational assessment report in April 2025, having interviewed the plaintiff.
4. Due to the plaintiff's physical restrictions, discussions with various individuals within the industry, employers and recruitment agencies, indicate that he had the skills to consider the following roles: customer contact officer, charity representative, customer service representative and rental services officer.

1. There is no issue the incident occurred.[62] It was reported and an incident form completed by the plaintiff later that day.
2. The defendant "certainly did not dispute the incident happened. While it was genuine, it was minor, trivial and caused a temporary episode of pain but what brought the plaintiff to surgery was the underlying degeneration, not the incident."[63] The plaintiff did not suffer injury over the course of his employment. He suffered injury in one incident.[64]
3. Further, it is accepted that the incident resulted in an aggravation of pre-existing degenerative change in the right knee. The unchallenged evidence is that the knee was really degenerate at the time of the incident.[65] However, the duration of that aggravation is in issue, with Dr Menz of the view it would have resolved after six weeks.

1. As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[66]

"... 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. As Chernov JA said in Dordev v Cowan & Ors,[67] in this type of case, a plaintiff's credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
3. Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff's application must be looked at in the light of my views as to the plaintiff's credit and reliability. An example in this application was the inaccurate history relied on by Mr Mitchell that the plaintiff's knee had remained sore and swollen since the incident. This was not the plaintiff's evidence.
4. The defendant did not significantly attack the plaintiff's credit. It was submitted the plaintiff was a bit unreliable, having clearly read his GP notes and "had his answers ready". He did not give clear evidence about the progress of his knee condition and limping post incident. His evidence was unreliable because he was clearly going to doctors for other issues and not mentioning limping or right knee problems and then things obviously get worse around mid 2021 as he agreed.[68]
5. Further, the plaintiff's detailed affidavits "were hopelessly insufficient as to the before and after scenario with the knee and some of that is wrong anyway". He deposed the pain and swelling did subside.[69] He did not depose he was limping but that others said he was.[70]
6. From the plaintiff's perspective, any attack on the plaintiff's credit failed insofar as it was suggested he tried to maximise the effects of the incident and minimise his earlier knee issues and that he lacked motivation to work and was a bit lazy. The plaintiff was "open and honest".[71]
7. There were no significant credit issues.[72] Generally, I found the plaintiff was a truthful witness who did not play down his level of knee symptoms and disability pre incident or exaggerate them thereafter. However, his evidence of the progress of his knee condition post incident was unreliable. His conduct after the incident was inconsistent with a significant trauma, continuing his normal duties and not seeking medical treatment until nine months later. He did not report any issue limping to his GP nor did he mention it in his affidavits, simply deposing he was told by others he was limping.

1. A finding as to causation is not a matter into which value judgements should intrude.[73]
2. Having been satisfied the plaintiff suffered injury to his right knee in the incident, I must also be satisfied that the consequences of any incident aggravation and that aggravation alone (not the entirety of the degenerative changes in the plaintiff's right knee) amounted to a very considerable long-term impairment of the function of his right knee.[74]
3. The plaintiff must establish the nature and extent of the aggravation of his degenerative knee condition and the specific consequences of that aggravation.[75]
4. I am required to determine the extent of the aggravation or the likely duration of any aggravation relating to the incident.[76] What, if any, part of the deterioration in the plaintiff's condition was caused by the incident, as opposed to the progression of the underlying disease?[77]
5. The facts in the present application are very similar to those in Seckold.
6. In both cases, there was no issue the plaintiff suffered a compensable injury. The plaintiffs were asymptomatic at the time of the relevant incident but had degenerative changes in the injured limb. There was a significant delay in seeking medical attention for the relevant injury. The plaintiffs continued full-time work for some time after that injury. Their evidence was somewhat unreliable as to their post-incident condition.
7. The plaintiff was unsuccessful in Seckold because although asymptomatic before the accident, the condition (pre-existing degenerative changes in the right wrist) existed prior to the accident and would, in the ordinary course, have progressed with or without the occurrence of the accident.[78]
8. As the Court said in Seckold:[79]

"...where the injury was an aggravation of a pre-existing condition, and where there had been very little by way of any symptoms requiring medical treatment for a significant period of time following the accident, it was incumbent upon the applicant to establish the difference between the progression which would likely have occurred had the accident not happened, and the progression which has in fact occurred as a result of the aggravation caused by the accident."

1. There was little to distinguish that case from Petkovski, where the Full Court of the Victorian Supreme Court accepted the proposition that:

"A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. ... ."[80]

2. This statement of principle has been applied by the Court of Appeal on numerous occasions. It applies whether or not the pre-existing condition was asymptomatic or symptomatic. It is the nature and extent of the impairment resulting from the injuries sustained in the incident that must be identified by the plaintiff.[81]
3. The extent of any necessary analysis of such an impairment, particularly in the case of an asymptomatic pre-existing condition, will depend on the whole of the evidence adduced in the case, including the medical evidence directed to the effects, if any, of the injury upon the underlying degenerative condition and any consequential impairment.[82]
4. Did the plaintiff adduce any evidence which sought to deal with this issue? Was there any evidence as to the extent of the aggravation or the likely duration of the effects of the aggravation? [83]

1. The consensus of medical opinion is that 2010 arthroscopy showed severe degenerative change, and loose bodies were removed. The operation report set out that there was no tear but Grade 2 degenerative change on the medial femoral condyle with mobile chondral flaps and a number of loose bodies floating around in the joint. During the arthroscopic surgery, those loose bodies were removed and a chondroplasty, shaving off some cartilage, was performed.
2. After the 2010 arthroscopy, the last mention of the right knee in the Springs' notes before July 2021 was on 2 December 2011, when it was noted the right leg had now settled down so the plaintiff could cease NSAIDs, and the ultrasound was normal.
3. Before the incident, while there were pre-established degenerative changes they were largely asymptomatic. There were no ongoing symptomatic knee issues before the incident.[84]
4. The plaintiff played competitive basketball in 2011 and attended football training. He underwent six weeks' training after commencing work with the employer on 20 November 2011. He had no problem with his right knee undertaking the week of physical training. He worked full-time normal duties without the need for time off or medical attention for his knee until 19 July 2021.
5. There were, however, three reported instances of knee pain doing restraints in 2012 and twice in 2015. While the plaintiff accepted he experienced knee pain following these incidents, he never went to the doctor or had time off work.[85]
6. The plaintiff deposed that post incident, the knee swelling and soreness subsided but there was an underlying amount of pain.[86] Treating surgeon, Mr Mitchell, had a different history, that there was ongoing soreness and swelling from the date of the incident.
7. The plaintiff did not mention problems with his gait/limping post incident in his affidavits or to his doctors. The evidence in this regard was hearsay, deposing that others had told him he was limping and that was what led him to see his GP.[87]
8. While the plaintiff reported the incident the day thereof, he did not seek treatment for his right knee until nine months later - July 2021 - having attended his GP three times post incident for other issues.[88]
9. On 27 August 2021, the plaintiff first told his GP of injury to his right knee in the incident, nine or ten days after he submitted his Claim Form on 18 August 2021.[89] His GP then provided his first certificate. On 5 August 2021 however, the GP noted "coming with r[igh]t knee pain work injury few years now, now worsening".
10. The plaintiff explained he did not seek treatment earlier because he thought his knee would settle as it had before. He did not want to make a fuss and had to keep working to look after his son. He thought of himself as a stoic person and was concerned about his work future. He is a man who does not go to the doctors that much and his supervisor suggested he go after seeing him limping. In 2010 to 2020, he did not go to the doctor much at all, which is consistent with his character.[90]
11. There is no evidence the plaintiff took any time off work at all after the incident.[91] It appears he undertook normal duties until some time before the December 2021 arthroscopy. On 31 August 2021, the GP noted "no light duties available and cannot do heavy duties".
12. Any issue with work or the need to see a doctor commenced in mid 2021, not from the time of the incident.
13. Further, while the plaintiff's claim for compensation was accepted,[92] this course was taken by the insurer before Dr Menz and Dr Wyatt had provided their opinion.[93]

1. The treating surgeon's views about the diagnosis of the plaintiff's condition and the need for surgery has changed at various times. In any event, he did not address the question the Court required in Seckold.
2. When he first saw the plaintiff, the history was that the plaintiff's knee was swollen and sore since the incident. This was not the plaintiff's evidence.
3. Initially post 2021 MRI scan, he thought the plaintiff's knee condition was early arthritis and did not think there was surgical treatment for him. He was not sure fiddling with a potential meniscal root tear shown on that scan was going to make it any better but he would show the MRI to his colleagues. Having done so, he was optimistic. Removing the small loose bodies and doing a lateral release may actually settle the plaintiff down. While doing that, he would look at the root but did not imagine he would be doing a root repair.
4. Consistent with this view, in his request to the insurer for funding of the arthroscopy, he advised that the primary pathologies were loose bodies but there was also some oedema around the meniscal root which he would have a look at it while he was doing the arthroscopy.
5. The December 2021 operation report noted a large flap coming off the medial femoral condyle and a meniscal root tear. When he saw the plaintiff the following month, he did not really seem keen on doing much more. It became apparent there was a tear but really there was just degeneration occurring everywhere and the plaintiff was overweight. He really was not convinced there was something further he should have done at the time of surgery.
6. It is unclear why, in those circumstances, by 15 March 2022, he requested funding for a total knee replacement. He simply advised the insurer that there had not been great progress after the arthroscopy and the plaintiff was better off with a total knee replacement. However, for the first time he did mention that while one might accept the plaintiff had a pre-existing condition, in retrospect probably the injury that occurred while stacking the chairs was the meniscal root tear which had then gone on for him to develop rapidly progressively osteoarthritis of the right knee.
7. Mr Mitchell's view in March 2022 is the high point of the plaintiff's case on causation; however, it was the first mention of the role played by the meniscal tear when earlier Mr Mitchell was focussed on degeneration as the cause - primary pathologies. In his two letters, he repeated there is really just a degeneration occurring everywhere in the knee and the plaintiff is overweight - a view shared by Dr Menz.[94]
8. Further, Mr Mitchell made this comment in the context of his request for funding for a knee replacement in circumstances where he had previously been against surgery. His request right knee surgery be funded by WorkCover is irreconcilable with what he earlier stated in his first three reports.[95]
9. Mr Mitchell has not been asked to elaborate on or provide any path of reasoning for this opinion. He has not provided a report specifically addressing causation. His last word on the issue was his letter to the GP following his final examination of the plaintiff on 20 October 2023 where he advised the plaintiff was travelling well following his knee replacement.
10. The treating surgeon had not addressed the issue of causation appropriately in circumstances where it was incumbent upon the plaintiff to establish the difference between the progression which would likely have occurred had the incident not happened, and the progression which has in fact occurred as a result of the aggravation caused by the incident.[96]
11. In the absence of this evidence from the treating surgeon, medico-legal opinion would have been of assistance in the consideration of this issue.[97]
12. It is not enough for the plaintiff to establish causation on the basis that the GP, Dr Slesenger, and Dr Doig, an orthopaedic surgeon, thought the condition was related to the incident.[98]
13. Various reports from the GP were very brief and did not deal with causation in the manner required in Seckold.
14. Dr Naz simply stated, "the diagnosis related to the incident was a meniscal injury". She did not address in any way, the nature and duration of any aggravation of the underlying condition following the incident.
15. Dr Slesenger did not deal with causation, simply stating there was an aggravation of degenerative disease for which the plaintiff had surgery. The condition was relevant to the claimed injury.
16. Dr Doig carried out an impairment assessment under the AMA Guide. He did not address causation in any detail. He simply diagnosed soft tissue injury with aggravation of pre-existing degenerative change. He thought the clinical presentation was consistent with the incident. It was consistent with the workplace aggravation and subsequent surgery.
17. While Dr Horsley thought the aggravation of the plaintiff's right knee had been significantly contributed to by the incident and that aggravation had significantly contributed to the ultimate requirement for knee replacement surgery prematurely, that surgery was likely to have occurred in the future anyway. She did note the MRI confirmed bony oedema and the suggestion of an avulsion injury which was new, but did not comment on the significance if any of that finding.
18. Significant contribution is not enough of a causal link in this case. More is required, as the Court stated in Seckold.
19. It was conceded that bringing surgery forward that was going to happen anyway may be a serious consequence in some cases, but not here, because there is no evidence for example of Dr Horsley saying, well, the plaintiff may or may not have come to surgery anyway. Her opinion is unambiguous. The plaintiff would have come to surgery anyway.[99] In those circumstances, the plaintiff does not establish a permanent serious impairment of his knee.[100]
20. Dr Horsley does not give any timeframe by which the incident brought surgery forward. To infer any particular timeframe would be speculation.[101]
21. In this case, there is no evidence, absent the incident, there remained a possibility of the plaintiff avoiding knee surgery. Dr Horsley's view is exactly the other way.[102]
22. The plaintiff has the onus to establish causation.[103] Whether or not the need for surgery was incident related or otherwise, or brought forward because of the incident, may also be a relevant damages issue at trial.[104]

1. The defendant relied on the analysis of the pathology by Dr Wyatt and Dr Menz, orthopaedic surgeon. Those doctors rely on the fact the plaintiff had a severely degenerate knee and the nine-month gap until he first sought medical treatment for his right knee.[105]
2. While noting the avulsion injury involving the meniscal root, Dr Wyatt did not comment further as to any role it played in the need for surgery or whether it occurred in the incident. She simply stated that that 2010 arthroscopy findings had advanced by the time of the 2021 arthroscopy.
3. In her view, the incident did not materially contribute to the plaintiff's present condition. The natural progression of the 2010 degeneration was gradual worsening. Working for nine months before seeking medical care, with known arthritis, one would expect the incident to have been significant and require time off work. Here there was no time off work, and gradual worsening. These circumstances were insufficient to materially contribute to knee osteoarthritis, which would have developed regardless.
4. In his summary of the 2021 MRI report, while Dr Menz did not mention the conclusion detailing an avulsion fracture or any involvement of the meniscal root, he did comment on these findings in his criticism of Mr Mitchell's request for funding for the knee replacement surgery. He thought the 2010 arthroscopy and the 2021 MRI simply showed degeneration.
5. He strongly disagreed with Mr Mitchell's view, which he described as a justification (for surgery to be funded) about the meniscal root tear being caused by the incident and as a result the plaintiff went on to rapidly developing osteoarthritis.
6. He also disagreed with Dr Doig that it was reasonable to do the scope because the incident injury aggravated the pre-existing arthritis in the plaintiff's knee.
7. He agreed with Dr Wyatt's views. There was no significant traumatic injury to the plaintiff's knee, and the only pathology found on MRI was pre-existing degeneration which did not justify arthroscopic surgery.
8. The operating surgeon in 2010 noted significant medial femoral chondral damage, and over the next ten years this would have undertaken the natural history of that kind of degeneration, and just gradually got worse with time. The incident did not worsen or cause the arthritis, but it was significantly pre-existing prior thereto.
9. The need for an arthroscopy and subsequent total knee replacement was solely due to the pre-existing severe non-work-related osteoarthritis.[106]

1. As in Seckold, the whole of the medical evidence demonstrates that the plaintiff suffered from a progressive degenerative condition in his right knee. Notwithstanding he had no pain or symptoms prior to the incident, the condition existed prior thereto and would in the ordinary course have progressed with or without the occurrence of the incident.[107] Dr Horsley's view went further, stating the knee replacement surgery would have happened in any event.
2. As in Seckold, notwithstanding the need for the applicant to undertake the evidentiary exercise - to establish the difference between the progression which would likely have occurred had the incident not happened, and the progression which has in fact occurred as a result of the aggravation caused by the incident,[108] the plaintiff adduced no evidence which sought to deal with this issue.[109]
3. Specifically, there was no evidence as to the extent of the aggravation or likely duration of the effects of the aggravation. These were matters the plaintiff was required to address as part of his case in endeavouring to establish that the consequences of the injury cause the incident were serious.[110]
4. Further, there was no evidence that, absent the incident, there remained a possibility of avoiding surgery. There was no evidence that the incident brought the surgery forward, thus constituting a serious injury consequence. Dr Horsley's view is entirely the other way.[111]
5. I accept that Dr Wyatt's analysis is reasoned and based on the known facts. Both her view and that of Dr Menz are based on an acceptance of what the plaintiff says about the incident happening. They look at all the evidence against a background of a severely degenerate knee, having regard to the 2010 operation findings and then the 2021 findings, and conclude the incident did not aggravate or accelerate the known arthritis in any way.[112]
6. I reject any criticism of Dr Menz's opinion on the basis that it was a "desktop assessment", because he had all the relevant history, concluding that the only pathology found on the MRI scan was pre-existing degeneration and that he did not think there was indication for surgery, which was Mr Mitchell's initial view.[113]
7. As the defendant submitted, it is a Petkovski scenario. The aggravation had to be serious. The plaintiff cannot identify the aggravation and the extent thereof. His own surgeon has not been asked to do it. The GP does not grapple with it and Dr Horsely does not help saying the plaintiff would have been in a position now, irrespective of the incident, which the defendant says was minor.[114]
8. Taking all the evidence into account, I am not satisfied that the consequences of any incident aggravation alone amounted to a very considerable long-term impairment of the function of the plaintiff's right knee.
9. Accordingly, the application is dismissed.
10. This is not a case where the plaintiff has complained of ongoing right knee pain and resultant restrictions at work since the date of the incident. Symptoms thereafter were mild and, on the plaintiff's own description "the pain and swelling did subside but the pain would not go away altogether".
11. The situation was similar to what followed with the restraint incidents, where the plaintiff reported injury to the employer but did not seek medical treatment.[115]
12. I am not satisfied that the deterioration in the plaintiff's right knee condition in mid 2021 when he required medical attention and modification of his work duties can be attributed to the incident, as opposed to the consequences of the pre-existing degenerative changes in this right knee.[116]
13. Counsel for the defendant anticipated as causation was in issue in this application, the plaintiff would rely on Findlay v Transport Accident Commission,[117] where the Court stated:

"As has been said before, a serious injury application is a 'gateway' proceeding, usually conducted with no oral evidence other than that of the plaintiff. The result of the application does not give rise to any liability to pay damages. Nor does it create any relevant issue estoppel. This Court has previously held that a plaintiff in a serious injury application must prove causation. However, the question, whether the evidence tendered in such a gateway application is sufficient for that purpose, needs to be considered in light of the limited purpose for which the question is being asked, and in light of the more limited scope of the evidence adduced on that issue than that which might be adduced in a full trial."

14. While Findlay was relied on insofar as this was a "gateway" application, the plaintiff also submitted there was enough evidence to get the plaintiff across the line on causation.[118]
15. The defendant submitted the "gateway" comment was really by way of obiter and the Court in fact confirmed the plaintiff needs to prove causation.[119]
16. As the defendant conceded, there may be some application of the Court's comments where there was a genuine contest on the facts in a serious injury application between medical practitioners and in that scenario it well may be a court decides, subject to the plaintiff positively establishing the requisite causal link, that a full-on causation fight is really a matter for trial.[120]
17. In this application, there is no genuine contest on the facts and the question of causation can be dealt with by this Court on the available medical evidence. The lay affidavits are of no assistance.[121]

1. In the event the plaintiff had established the requisite causal link in Seckold,[122] as counsel for the defendant conceded, clearly it would be open to find seriousness in terms of pain and suffering consequences. While the plaintiff is a man who is clearly independent at home, travels, shops and does all these things independently, he has had two operations. As Dr Menz accepted, the plaintiff has a poorly functioning right knee.[123]
2. It is not in dispute that the plaintiff's ability to undertake day-to-day activities is significantly affected by his right knee condition, with difficulties with mobility and prolonged sitting and standing. He cannot drive long distances without experiencing knee pain.
3. The plaintiff's sleep is disturbed by knee pain. His ability to engage in leisure activities such as swimming and lawn bowls is very limited. He can no longer go for the long walks he previously enjoyed. He has to stagger his domestic and gardening duties.
4. The consensus of medical and vocational opinion is that the plaintiff no longer has the capacity to engage in physical work - the type of jobs in which he had worked for his entire working life.[124]
5. Taking all the evidence into account, I am satisfied the pain and suffering consequences of the plaintiff's right knee impairment are "serious". As these consequences have continued for in excess of five years without improvement despite surgery, the impairment is permanent.

1. Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that -

(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more - s325(2)(e)(i); and also

(b) after the date of hearing, the relevant loss of earning capacity will continue permanently - s325(2)(e)(ii).

1. The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i) "without injury" earnings; and

(ii) "after injury" earnings.

1. The former must be calculated by reference to the six-year period specified in s325(2)(f).
2. "Without injury" earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
3. It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker's earning capacity.
4. The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
5. The appropriate "without injury" figure is $51,000 or about $1,000 per week based on the plaintiff's earnings of about $85,000, his taxable income in 2020 and 2021.[125] It is speculative to take into account possible incentive payments when considering this figure.[126]
6. The plaintiff is now fifty-eight. He has only done physical work. The consensus of medical opinion is that he cannot return to his pre-incident job or any other physical work. Further, he was advised by the employer in early 2023 that his employment was terminated as he was unable to do his duties as a youth worker.
7. In my view, the plaintiff has no capacity for suitable employment.[127] While he is presently not actively seeking work, because of his knee pain and resultant mobility issues, he would not be able to attend work on a reliable and consistent basis.[128] His pain is unpredictable and he has to rest even after undertaking limited household tasks.
8. Many of the suggested jobs involve activities which are clearly unsuitable for the plaintiff - prolonged sitting, extended driving et cetera.
9. The plaintiff has a good work ethic. Absent his knee impairment, he had no intention to retire from the workforce and I accept it was likely he would have worked in his chosen field or alternative employment until retirement age. I reject the suggestion that he lacks motivation to work, given his ability to live on his savings.
10. Accordingly, the plaintiff has suffered the requisite loss of 40 per cent.
11. I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
12. In light of my findings as to the plaintiff's impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of ss(g).

State of Victoria (Department of Justice and Community Safety) $79,695.00

Gross interest, dividends and franking credits $3,251.00

State of Victoria (Department of Justice and Community Safety) $73,325.00

Gross interest, dividends and franking credits $3,394.00

State of Victoria (Department of Justice and Community Safety) $84,671.00

Gross interest, dividends, franking credits and gains on share sales $23,626.00

State of Victoria (Department of Justice and Community Safety) $84,261.00

Gross interest, dividends, franking credits and net capital gain $13,343.00

State of Victoria (Department of Justice and Community Safety) $78,161.00

Gross interest, dividends, franking credits and net capital gain $3,382.00

State of Victoria (Department of Justice and Community Safety) $54,683.00

Gross interest, dividends and franking credits $8,286.00

State of Victoria (Department of Justice and Community Safety) $61,868.00

Gross interest, dividends and franking credits $17,754.00

State of Victoria (Department of Justice and Community Safety) Nil

Gross interest, dividends and franking credits $20,396.00

[2] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436 ("Petkovski")

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

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

[6] [2025] VSCA 18 ("Seckold")

[37] Plaintiff's first affidavit sworn on 18 December 2024

[40] Plaintiff's affidavit sworn on 15 October 2025

[47] Third affidavit sworn 30 October 2025

[61] Clinical note 15 March 2022 - Limping about, struggling to walk

[67] [2006] VSCA 254 at paragraph [14]

1. [73] Transport Accident Commission v Florrimell [2013] VSCA 2474 at paragraph [49]

[92] T87; Ansett Australia Ltd v Taylor [2006] VSCA 171

[104] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

[117] [2025] VSCA 126 at paragraph [61]

[124] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326

[127] T90; See the principles in Richter v Driscoll (2016) 51 VR at 95