Venn v VWA

1. Mrs Venn is fifty-four years old and is a qualified personal care attendant. In or around April 2015, Mrs Venn commenced working for Norsan Pty Ltd, trading as Park Lane Croydon ("the employer") as a personal care assistant. She was employed on a permanent part-time basis, working 50 to 54 hours per fortnight. She ceased working there at the end of 2016 and returned to the Philippines for approximately two years. She re-commenced working with the employer when she returned to Australia on or about 6 March 2019, on the same basis.
2. On 21 May 2020, she sustained a compensable injury to her left shoulder, when she was assisting a heavy resident with a hoist machine.
3. It is not necessary for the purpose of this ruling to go into detail regarding all the treatment she has undergone to her left shoulder. However, I will note that she has undergone a great deal of treatment to her left shoulder, including cortisone injections, hydrodilatations, acupuncture and an arthroscope. She has also been prescribed, and has taken, varying medications to treat her injury from the time it occurred to date.
4. She was off work for a couple of months and then returned to work on light duties. She then ceased work in September 2021 and resigned in March 2022.
5. She deposed to the duties she was required to undertake on light duties when working with the employer in her affidavit sworn 25 March 2024.[1] She said that she recalled complaining that the duties were not light enough, and that ultimately she felt she had no choice but to try her best to complete the tasks that were allocated to her so that she could keep her job.[2]
6. In May 2022, she applied for a role as an independent support worker with Mable but was unsuccessful with that application.
7. In February 2023, she had a meeting with the employer as she felt that she had recovered sufficiently to resume her former role with them. However, her employer did not rehire her.[3]
8. She then obtained employment with Bupa Aged Care as a personal care assistant. She deposed to working around 46 to 50 hours per fortnight on a casual basis. During submissions, Counsel for the defendant referred me to payslips of the plaintiff from this period which showed that she worked 61.5 hours in the fortnight ending 26 November 2023, 46 hours in the fortnight ending 10 December 2023, 60 hours in the fortnight ending 15 November 2023 and 55 hours in the fortnight ending 29 October 2023.[4]
9. She said that while she did not have any formal restrictions at that time, she made sure that she did not undertake tasks that she did not feel capable of doing without causing an increase in pain in her left shoulder.[5] She was worried about her employment in the future as she was still struggling to cope with the pain in her left shoulder.
10. She also said that she and her husband were planning to move to Yarrawonga for a change of lifestyle and that she was hoping to obtain employment with one of the two local aged care centres as a personal care assistant on a casual basis.
11. Mrs Venn swore a further affidavit on 1 May 2025.
12. In that affidavit, she deposed to having problems with her right shoulder due to overcompensating from the lack of use of her left shoulder.[6] She had undergone a hydrodilatation to her right shoulder on 27 June 2024 and an arthroscopy, hydrodilatation and manipulation under anaesthesia on 4 September 2024.
13. She said that she no longer worked at Bupa Aged Care and that her last day was in April 2024. She said:

"Firstly I couldn't continue with the type of work I was doing and secondly we have moved to Yarrawonga."[7]

1. She said that she had not returned to working in aged care in Yarrawonga. On 4 March 2025, she had started to work as a casual cleaner at a caravan park, NRMA Holiday Park, for about 10 hours a week over three days, working between two to three hours a day.[8]

1. I was provided with a number of rulings of this Court regarding how the Court exercised its discretion with respect to Counsel's fees in circumstances where the plaintiff had not accepted a 'pain and suffering offer' made by a Notice pursuant to the Costs Order by the Victorian WorkCover Authority.
2. It was clear from those authorities that the purpose of the Costs Order is to promote early resolution of litigation where appropriate and to ensure costs remain reasonable for parties and the public.[9]
3. The test to be applied was set out by his Honour Judge Parrish in the decision of Matthews v Latrobe Regional Hospital (Ruling as to Costs),[10] where he said as follows:

"I consider that the issue for determination can be stated to be whether the plaintiff's solicitors acted unreasonably in not accepting the offer contained in the first Notice or the offer contained in the second Notice. It was incumbent upon the solicitors for the plaintiff to assess the material that was available to them at the time that each offer was made, bearing in mind that there was 28 days to accept the offer. Such assessment required an examination of the material available to the plaintiff's solicitors, such material including, of course, the plaintiff's instructions, together with other material including medical material relevant particularly to the issue of capacity for work. Furthermore, such assessment of the material must be in the context of what the worker must establish as a matter of probability in order to obtain leave to bring a claim for damages in respect of pecuniary loss - that is, at the time of the hearing, she would have to establish a loss of earning capacity of 40 per cent or more as set out in the Act and thereafter, to continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per cent or more."

1. In this case, Counsel for the defendant submitted that Mrs Venn's solicitors acted unreasonably in not accepting the offer contained in the notice because nothing really happened between the time the Notice was served, its expiry and coming to Court on 14 May 2025 that would have changed what a reasonably prudent solicitor would have advised Mrs Venn to do.
2. Counsel for the defendant submitted that it was clear on the evidence that:

(a) Mrs Venn was working hours in excess of the threshold for establishing an entitlement to loss of earning capacity while at Bupa Aged Care;

(b) had the proceeding not resolved, it would have been a matter of dispute about why Mrs Venn ceased work at Bupa Aged Care based on her affidavit evidence;

(c) it would have been submitted that Mrs Venn was planning to move to Yarrawonga for a change in lifestyle; and

(d) it was clear at the time the notice was served that the medical evidence regarding the right shoulder did not support a conclusion that it was causally connected to, or arose as a result of overuse from, the left shoulder injury.

1. Counsel referred me to the opinion of Mrs Venn's treating orthopaedic surgeon, Mr Moaveni, dated 30 January 2025, and the material that Mrs Venn had in her possession from the defendant's medico-legal experts, those being the reports of Associate Professor Romas dated 22 August 2024 and Dr Rahgozar dated 26 August 2024, in support of this submission.
2. Counsel also said that while she accepted that Mrs Venn's solicitors had requested a report from her general practitioner, Dr Khan, in December 2024, and it was not received until after the expiry of the notice, a report was not sought from Mrs Venn's treating rheumatologist, Dr Chang. Rather, a report was sought from Dr Yap, consultant physician and rheumatologist, who had not seen Mrs Venn since 2022 and thus could not provide an up to date opinion about Mrs Venn's work capacity.
3. Having considered the submissions and the material I was referred to in the Court books, I have allowed certification of Counsel's fees for the following reasons:

(a) Mrs Venn only had one opportunity to make her application for leave to proceed with a claim for damages. The value of her claim for damages would likely have been significantly greater had she succeeded in establishing leave to proceed with a claim for damages for her loss of earning capacity in addition to her pain and suffering. Consequently, the decision to recommend abandoning an application for loss of earning capacity on a receipt of a Notice is a significant one. A reasonably prudent solicitor would have to be satisfied that a plaintiff, and in this case Mrs Venn, was unlikely to establish the entitlement on the balance of probabilities based on the evidence.

(b) Both Counsel for Mrs Venn and the defendant submitted that the medical evidence regarding whether the right shoulder injury had been caused because of overuse from the compensable left shoulder injury was at best "scant"[11] at the time the Notice was issued.

(c) Mrs Venn's treating orthopaedic surgeon, Mr Moaveni, provided details of the treatment he provided to Mrs Venn for her right shoulder in his report of 30 January 2025, including details of the hydrodilatation undertaken on 4 September 2024. He also extracted relevant parts of his clinical notes which revealed that Mrs Venn believed that the symptoms were due to overcompensation,[12] and that he would seek WorkCover approval for the repeat hydrodilatation procedure.[13] While Mr Moaveni appears to have answered the questions he was asked about the cause of the left shoulder and right wrist injury, he was silent regarding the cause of the right shoulder injury in his report.[14]

(d) Associate Professor Romas and Dr Rahgozer, medico-legal experts who were engaged by the defendant, were both of the opinion that Mrs Venn's right shoulder injury was not causally connected to her compensable left shoulder injury.[15]

(e) Mrs Venn's solicitors did not have a report from her rheumatologist at the time of the offer was made. While they received a report from Dr Yap dated 5 March 2025, within the period that the offer was open to be accepted,[16] this was ultimately unhelpful as Dr Yap had not seen Mrs Venn since 31 August 2022. In the context of Mrs Venn's solicitors not having a report from Dr Khan at the time they received Dr Yap's report, and in the context of Mrs Venn only just having returned to work, I accept that this report did not assist Mr

(f) s Venn's solicitors in forming a view about the reasonableness of the offer.

(g) Mrs Venn's solicitors did not have an up-to-date report from Dr Khan at the time the notice was served. They sought one with a medical report authority dated 13 December 2024, which was received on 17 March 2024. This was the day the offer contained in the Notice expired.

(h) Dr Khan said that Mrs Venn could not work in aged care because of the right shoulder which was affected by adhesive capsulitis. He was silent about Mrs Venn's capacity to work in aged care with respect to her left shoulder. He said that her right shoulder had a restricted range of movement due to overcompensation from the left shoulder adhesive capsulitis.[17]

(i) I am mindful that in Mrs Venn's affidavit sworn on 1 May 2025, she noted that she had problems with her right shoulder due to overcompensating for her left shoulder.[18] While I have not taken this into account as expert evidence on causation, I have placed some weight on this as I am required to take Mrs Venn's instructions to her solicitors into account when deciding whether Mrs Venn's solicitors acted reasonably.

(j) While I accept that the evidence regarding causation with respect to the right shoulder was scant, in light of what appears to be Mrs Venn's instructions, I accept that it was appropriate for the Mrs Venn's solicitors to await receipt of the report from Mrs Venn's general practitioner before forming a final view on the reasonableness of the defendant's offer and making recommendations to Mrs Venn.

(k) However, it was also reasonable to wait to see how Mrs Venn managed her return to work, given that she had only resumed employment on 4 March 2025, about two weeks after the offer was put.

(l) While the evidence of Associate Professor Romas and Dr Rahgozer was that Mrs Venn's left shoulder injury did not prevent her from returning to her pre-injury employment, this was not the evidence of Mr Moaveni, Dr Awad nor Dr Khan (with the qualification that Dr Khan's evidence related to the right shoulder rather than the left).

(m) I accept that the question of whether Mrs Venn ceased at Bupa Aged Care because of either or both of her left and right shoulder injuries, or because of lifestyle reasons, or a combination of some or all these factors, was an issue to be tested at the hearing.

(n) Her affidavit evidence was also that she would not work in aged care again, that she had tried and been unsuccessful, that she no longer worked in the profession that she used to pre-injury and was no longer working the hours that she was able to work pre-injury.[19] She also said that she no longer worked at Bupa Aged Care as she could not continue with that work and because she had moved Yarrawonga.[20] I have placed some weight on this evidence in deciding whether Mrs Venn's solicitors acted reasonably.

(o) I accept that the issue of whether the work of a cleaner was lighter than a personal care attendant would have been in dispute. However, the fact that Mrs Venn's evidence was that she could not return to working in aged care as a result of her injury, and that she had started working 10 hours a week at the time the offer was made, led me to the conclusion that it was reasonable for Mrs Venn's solicitors to allow a period of time to elapse before forming a final view on whether it was appropriate for Mrs Venn abandon her claim for loss of earnings.

1. Having weighed the state of the evidence against the purpose of the Costs Order, I find that it was reasonable for Mrs Venn's solicitors to allow a period to elapse after Mrs Venn commenced her return to work, and to wait for a supplementary report from the general practitioner, before forming a view on her likely prospects of succeeding in her application for leave to proceed for her loss of earning capacity.
2. I therefore exercise my discretion in favour of Mrs Venn and will allow certification of plaintiff's fees.
3. The parties advised that if I were to do so, they would be able to forward consent orders to my chambers for consideration. I ask the parties to now attend to this.

[1] Affidavit of Emily Rivera Venn in support of serious injury application sworn 25 March 2024 ("25 March 2024 affidavit"), Plaintiff's Amended Court Book ("PCB") 26, at paragraph [131]

[3] 25 March 2024 affidavit, PCB 26 at paragraph [134]

[4] Transcript ("T") 15, Lines ("L") 18-22; T16, L5-9; Defendant's Court Book ("DCB") 163-166

[5] 25 March 2024 affidavit, PCB 26 at paragraph [136]

[6] Further affidavit of the plaintiff sworn 1 May 2025 ("1 May affidavit"), PCB 28 at paragraph [4]

[7] 1 May affidavit, PCB 29 at paragraph [8]

[8] 1 May affidavit, PCB 29 at paragraph [9]

[9] Briana Wade v Victorian WorkCover Authority (Ruling as to Costs) [2025] VCC 105, [20]; Theodora Nicoletas v Wallara Australia Pty Ltd (Ruling as to Costs) [2023] VCC 2372, [32]; Madex v VWA [2023] VCC 1972, [19]-[23]; Matthews v Latrobe Regional Hospital (Ruling as to Costs) [2021] VCC 1161, [32]; Trumanis v State of Victoria, unreported, County Court of Victoria, 26 May 2017, T7-8. See also Barman v Victorian WorkCover Authority (Ruling as to Costs_)_ [2020] VCC 280, [6]; Dowling v Myers Street Family Medical Practice Pty Ltd [2018] VCC 2314, [19]; Gellard v VWA [2017] VCC 1919, [29]

[10] [2021] VCC 1161 at [38]

[18] 1 May 2024 affidavit, PCB 23 at paragraph [3]