Young v Victorian WorkCover Authority [2025] VCC 740

"... 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."

1. 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.
2. Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
3. When a worker is under twenty-six years of age at the date of injury, pursuant to s325(e)(i) of the Act, he must establish that at the date of the hearing, he has a loss of earning capacity of 40 per cent or more. Further, he must establish, pursuant to ss(e)(ii) of the Act, that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more. Subsection (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury, does not apply.
4. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Haden Engineering Pty Ltd v McKinnon,[2] Stijepic v One Force Group Aust Pty Ltd[3] and State of New South Wales v Moss[4] in reaching my conclusions.
5. The plaintiff affirmed two affidavits and was cross-examined. He also relied on an affidavit sworn by his father, Matthew Young, on 13 March 2025 and an affidavit of Brendan Waldron, his former employer, sworn on 1 April 2025. Also in evidence were medical reports and other material. I have read all of the tendered materials.
6. The defendant's focus was on the loss of earning capacity application. Pain and suffering was also in issue.[5]

1. The plaintiff is presently aged twenty-four, having been born in May 2001. He lives at home with his parents.
2. After leaving school, he commenced work with the employer as an apprentice electrician in about July 2019, completing his apprenticeship as an A grade electrician in December 2021.
3. The apprenticeship involved four years at TAFE, the first three years at Swinburne.[6] He did well in the academic side of his studies.[7]

1. On the said date, he was moving a heavy switchboard on a trolley with wheels. A wheel came loose and the switchboard fell from the trolley, crushing his left leg ("the incident").

1. He attended hospital in Geelong, where he underwent an open reduction and an internal fixation of a left femoral fracture ("the surgery") performed by Mr Selvarajah, orthopaedic surgeon. Post-operatively, he had physiotherapy.
2. He returned to see Mr Selvarajah on 27 May 2021 because of left knee discomfort and pain. Scans then revealed the femur fracture had not united properly and was a hypertrophic non-union. Mr Selvarajah performed fixation surgery on 7 October 2021. The plaintiff had further physiotherapy thereafter.
3. The plaintiff's left leg was shorter than his right and he was referred to a podiatrist, who provided him with orthotics.
4. He developed ongoing problems with his left knee. On 6 December 2022, Mr Selvarajah referred him to Mr Hartnett, a knee surgeon.
5. Following a number of radiological investigations, the plaintiff had further surgery on 15 March 2023, involving a left intramedullary femoral nail removal and excision of the greater trochanter non-union and on 28 March 2023, he underwent a left knee-high tibial osteotomy.
6. As at February 2024,[8] he remained under Mr Hartnett's care. He had physiotherapy treatment and did strengthening exercises in the gym.
7. On 1 December 2023, he had an x-ray of his left knee. On 19 December 2023, he had a nerve conduction study to investigate symptoms of left foot numbness and tingling.
8. On 1 March 2024, he attended Mr Ng, neurologist, to whom he was referred by Mr Hartnett for investigation of left leg numbness. He had an MRI scan of his left knee on 3 March 2024.

1. He does not see his GP regularly.
2. Physiotherapy has not been helping. He now goes to the gym four times a week to do leg exercises and keep fit. He also does some leg exercises with light weights at home.
3. Currently, he might have a Panadol "here and there", the last occasion being a couple of weeks ago, when he took two. He takes Panadol if he does a task that causes a flare-up. That would be one or two tablets once a month, or every couple of months.[9]

1. As at February 2024,[10] he continued to suffer left leg symptoms. At the end of a day at work, his leg was sore and tired. His left leg felt weaker than his right and he had occasional left foot numbness and tingling sensations. He suffered increased symptoms in his left leg when it was cold. His left leg felt sore at night and he could only jog a short distance.
2. He had been left with a lot of scarring on his left leg and the skin was tender in that area.
3. He experienced pain and found it difficult to squat and kneel. Standing for long periods caused symptoms and he needed to be careful walking over uneven ground. He struggled to walk long distances. He needed to be careful when going up and down ladders and stairs.
4. He had tried to get used to having a sore leg and did his best to just put up with it.

1. He continues to suffer pain, particularly around his left leg. Range of movement is restricted. His knee is tender and he cannot really kneel on it, and he has been told by his doctor it will not get any better. He has numbness from his foot to his knee and experiences tingles up his leg with movement. It is very annoying and upsetting. These feelings come and go. If he touches his shin it feels different from the rest of his leg. He has some wasting in his left thigh.
2. The pain in his left knee and leg is a dull ache. When he stands on his left leg for any period of time or performs certain movements with it, he experiences a sharp shooting pain.
3. He does his best to live with the pain and adjust what he does and get on with his life as best he can. At times, his left knee clicks and cracks. He has difficulty squatting and kneeling.
4. His mood had been affected, which caused frustration as he was restricted from engaging in the sports and activities he enjoyed. It had been difficult undergoing so many operations and having long recovery times and he worried about the consequences of arthritis he believed he would develop as he got older.

1. Prior to his injury, he was very sporty. Playing AFL in The Amateurs was his passion. He also enjoyed riding motorbikes, water skiing and outdoor activities.
2. He played football for the senior team at The Basin in Division 2 of the Amateurs' League and was paid $300 a game. His mates are now being paid $400 to $500 a game and, but for his injury, he would still be playing. He really loved footy. He can only now watch the games and finds it very difficult to do so. He had planned to continue playing for as long as possible, at least into his thirties. He believed he was considered a pretty handy player.
3. He avoided motorbike riding, as he was aware of the risk of hurting his leg again if he fell off. Previously, he enjoyed trail bike riding. He cannot remember the last time he tried riding his motorbike. He sold it after the initial injury.[11]
4. He used to enjoy sports, like water skiing, which he is no longer able to do. Pre incident, he went water skiing at Eildon and on the Murray with mates. He would use his friend's boats and would aim to spend a couple of weeks during the main holiday season on the water.[12]
5. He has not water skied or played football since the incident. He was playing football up until the time of the incident, although it was a COVID year, "so the season got a bit cancelled".[13]
6. He is an outdoor type of person and had always been physically active. He had lost much of his physicality as a result of his injury.
7. He used to enjoy running, but now when he does so, it has a jarring effect. As a result he has lost his cardio fitness because he is unable to run like he used to.
8. He has a normal social life for a young man. He has a few beers at the pub. He goes out for meals. He catches up with friends.[14]

1. He managed to continue to do his work duties as he adjusted the way he did tasks, but his leg felt very sore at the end of the day.
2. As a result of his injury, he had various times off work when he had surgery.
3. After his injury, he completed his electrical apprenticeship. The employer had been very supportive of him. He did "on the tools" work, but he also did some supervisory and organising type work.

1. He had not been able to follow his career plans and felt upset he was missing out on career opportunities that his peers had been able to take up. His left leg was very tired at the end of the day and he was worried about his future and, in particular, his leg deteriorating and developing osteoarthritis.
2. Pre-injury, he hoped to advance his career, and was keen to do well and become a high earner. He had a number of options. He was very keen to work as an electrician as a fly-in/fly-out worker in the Western Australian mines. He also wanted to set up his own business as an electrician. He had mates who had obtained their apprenticeships and had followed both courses.
3. In the short term, he believed he would have found other employment in which he would have been paid at a significantly higher rate per hour than in his current job.

1. He most likely would have worked as a fly-in/fly-out worker for, say, five to ten years. The opportunity to earn high wages appealed to him. He believed that his friends who worked in that role in mines in Western Australia earned in excess of $200,000 per year.
2. But for his injury, he believed this was a realistic opportunity for him, especially as he had a number of industry contacts.
3. As a result of his injury, he did not believe he would be able to perform this work. There was a requirement to pass a medical before being offered a role and he did not believe he would pass it due to his leg injury. He was limited in the work he could do onsite and struggled to work long hours due to his injury.
4. In his recent affidavit, he confirmed his desire to be a fly-in/fly-out worker at mines. He was keen to buy a house and that would have been an opportunity to pay off the mortgage and set himself up. He does not believe he would be able to work in the mines now as was his intention prior to injury. His understanding from a few people he knows who are working in the mines is that working days are twelve hours' long and they work fourteen days on and fourteen days off.
5. At the time of the injury, he was still doing his apprenticeship. Since finishing his apprenticeship, he has not applied for a job at a Western Australian mine. He had been in contact with people over there, but then he had to have more surgery, so he did not go further with it. He has not undergone a medical examination and he has not applied for a fly-in/fly-out job.[15]
6. He believed he could not do that job because of the long days and constant days you had to work in a row, and he did not think his leg would be able to withstand doing those long hours which are part of the roster for a constant period. He knows people who have gone over and worked in the mines. You might work a two/one roster, which might be like fourteen days on and then have a seven-day break. He did not know the roster himself. His friends in Western Australia have told him there are the different types of rosters.[16]
7. The hours would stop him applying for a fly-in/fly-out position. He had not put it to the test, but now when he comes home from a day at work, his leg is sore, so he knows that if he was to work twelve-hour days constantly in a row, he would be in pain. It would depend on what the work was whether he could do it or not. He would be limited.[17]
8. He confirmed he would have difficulty with prolonged standing and constant days without days off. Working in a mine, you would have to access tight spaces and he could not kneel or crouch down on his left knee.[18]
9. His leg was still sore, like when he worked eight or ten hours, he still went home with a sore leg. His leg is not sore when he wakes up, but he gets sore at the end of the day as he uses it. He might ice it here and there, but he just puts up with the pain and "like just gets used to it". Sometimes it would be just a dull sort of ache and then if he knocks it, there is a sharp pain or he gets tingles.[19]
10. After he has walked for two or three hours at a time, it feels like he has always got a different feeling in his left leg, whether it is pain, or it just feels a little bit different. It is okay standing for that period; the pain all depends on what activities he is doing. If he is walking around all day on uneven surfaces, at the end of the day his leg would be sore. If he is required to climb up and down a ladder or crouch down a bit, at the end of the day his leg would be sore and would continue to be so through the day.[20]
11. He had not been able to move on from his current job. His peers had told him they were now earning between $80 and $85 an hour, whereas he is earning about $50.[21] He remained with the employer, as he was in what is effectively "protected employment". He had to have so much time off work for surgery. The employer had allowed him to have this time off and keep his job and he did not believe another boss would have tolerated him taking so much time off.

1. In the longer term it was also his intention to start his own business as he believed he could have earned a high income.
2. As a result of his injury, he had not been able to progress his career and increase his earnings.
3. He was not even qualified at the time of the incident. He wanted to be an electrician, and part of the reason he wanted to do so was because it was a trade in which he could be a high earner.
4. He also planned to start his own business when he got back from the mines. He does not believe he will be able to do so as a result of his injury. He would have to start out on his own and gradually build up his business so he could employ someone else. He does not believe he can work the full gamut of duties as an electrician to start up his own business, such that he would have enough work to employ someone else. He has observed that this is the way that some of his friends who are chippies have built up their businesses.
5. He is not able to say what his expenses would be running his own business - "well you could get a rough idea, you'd need a van, your tools, you would be able to work it out ... You could assume and you could speak to people who have started - what they've been through and their experiences."[22]
6. He had spoken to "Brendan", a bloke he had earlier worked for, so he sort of knew through him all the ins and outs of getting a company started. He would have to do every single task because he could not employ someone straight away but he would not be able to do all the work because of the limitations with his leg.[23]

1. He is restricted in his ability to work in his trade. He had to modify the way he did work activities due to his injury. His leg became tired as the day progressed. He had difficulty coping with all the physical demands of the role, including heavy lifting, climbing and ascending ladders, accessing confined spaces, climbing and ascending stairs, squatting, kneeling and being on his leg for long periods.
2. He remains with the employer in a foreman role involving managing a crew. He still does some work on the tools, but is unable to do certain types of work which involve getting into tight spaces in the roof or under a house. He tries to avoid low-level activities, as he struggles to kneel or lay on his left side. He tries to avoid activities which aggravate his leg and modifies or adjusts everything he does to avoid aggravation.
3. His boss is very understanding and if there are tasks he cannot do, he is able to delegate them to his crew.
4. He believes he is in a form of protective employment. His boss does not send him to jobs where he would need to perform certain tasks he cannot do like getting into roofs. He does not believe an employer in the open market would afford him these indulgences.
5. If he was to leave his job as a foreman electrician, he believes he would have to start at the bottom as an electrician and work his way up. He therefore anticipates that he will remain in this job for the foreseeable future.
6. Every day at work, as a result of performing his duties, he gets a sharp pain in the knee area. The pain comes and goes, and flares up the more he does and as the day progresses. By the end of the day, his pain has increased and when he gets home from work, he often sits on the couch or rests to take pressure off his leg.
7. He is currently working standard hours, although from time to time he does an extra two or three hours a day as overtime. Usually he works five days a week, about eight hours a day. He uses the two-day break on the weekend to take the opportunity to rest his leg and recover so that he is able to go to work at the beginning of the next week. He does not believe he could work longer hours and consecutive days because of his injury.
8. He has worked varying amounts of overtime, the most being eleven-and-a-half hours in the week starting 9 December 2024. During other weeks he has worked about three-and-a-half, five-and-a-half and eight-and-a-half hours per week.[24]
9. He did not do all the overtime offered because the overtime that he does do is to progress the job he is currently managing, so his role is "pretty much just watching over the boys". He is not "actually physically working" most of the time. They are working at a school in Doreen and then there will be another job. Most of the other boys work ten-hour days and also Saturday, so eighteen to twenty hours of overtime a week would be available to him.[25]
10. He is able to work a full day on a building site - a full modified day - without the need for painkillers. He still uses power tools and hand tools. His work involves reaching forward and reaching over shoulder height. He will climb a ladder but tries to avoid doing so. He does not kneel on his left knee and squats when required.[26]
11. He still enjoys his work in his hands-on role and supervising other workers.[27]
12. He is able to drive an automatic vehicle all over Melbourne and to the country for work without restriction. He has no problems sitting. He can stand for two to three hours at a time. He does not have any problems with sleep.[28]
13. He walks on uneven ground "with care". He is involved through the use of power tools and hand tools and often has to reach over shoulder height.[29] He tries to avoid it, but will climb a ladder. He does not kneel on his left knee, but can squat when required.
14. He is able to wear work boots without issue.[30]
15. He would be able to do the following tasks required of an industrial electrician set out in the Flexi Personnel report, depending on what system it was.
    • Install, connect and maintain electrical control systems in industrial facilities.
    • Diagnose, fault find and repair industrial electrical systems.
    • Perform service and maintenance on electrical systems and equipment in industrial facilities for compliance with safety standards and regulations (not much experience, leg would not stop him doing this role with training).
    • Interpret and use technical drawings, circuit wiring and mechanical diagrams, equipment and cable/connection schedules and manuals to undertake electrical wiring work in industrial settings.
    • Collaborate with engineers and other professionals to plan and execute industrial electrical projects.
16. In his current job, he has been working in residential and commercial electrical projects, working in all aspects of electrical work, including installing wiring, circuit boards and transformers.[31]

Salary, wages, allowances, tips, bonuses et cetera

1. Matthew Young, the plaintiff's father, affirmed an affidavit on 13 March 2025.
2. He confirmed the plaintiff's evidence of his active life before the incident and the restrictions and pain he has suffered since. The saddest part of the plaintiff's injury is his inability to play sport, particularly football.
3. He has observed how tired the plaintiff is at the end of the day after work.
4. The plaintiff had spoken to him about his career aspirations, and desire to work in the mines and also to have his own business.

1. Mr Waldron swore an affidavit on 1 April 2025. He is the general manager at Searo Electrical Services Pty Ltd.
2. In 2018, the plaintiff was an apprentice electrician with BWK Group Pty Ltd in 2018 of which he was a director.
3. Exhibited to his affidavit was a letter dated 25 February 2025 which he wrote in support of the plaintiff's serious injury application.
4. During the time the plaintiff was with his firm, he demonstrated an excellent attitude, a keen attention to detail and a strong work ethic. He consistently showed he is a highly capable and gifted electrical apprentice. His ambition was one day to run and operate his own electrical and contracting business and that was always evident. He had no doubt the plaintiff would have succeeded if he was given the opportunity.
5. Unfortunately, due to a recent accident, the plaintiff's ability to carry out day-to-day operations of running a small one-man electrical contracting business has been severely impacted. From his experience, running a business of this size, he knows first hand the level of physical and mental demands required to successfully operate a business of this nature.
6. As a result of this setback, the plaintiff has lost the potential opportunity of earning a yearly income of between $180,000 and $200,000, which he could have realistically achieved if he had been able to pursue his dream of running his own business.
7. The plaintiff has always shown great promise and commitment and it is unfortunate that his circumstances have changed in such a way.

1. Nerve conduction studies were carried out in December 2023 because of left dorsum of foot numbness, previous left tibial osteotomy.
2. The study was abnormal. There was electro diagnostic evidence of left superficial peroneal sensory neuropathy with the left peroneal response being absent.

1. On 14 March 2023, Mr Harnett removed the intramedullary femoral nail with excision of the greater trochanter non-union on the left.
2. Later that month, he performed a left knee-high tibial osteotomy. This procedure was carried out on the background of a previous distal femoral shaft fracture with hypertrophic non-union secondary to the work incident. The high tibial osteotomy was performed to re-align the leg.
3. The plaintiff is at risk of increasing degenerative change in the future. The osteotomy was undertaken to try and slow the progression of his degeneration. In the future, the plaintiff will need to undertake a form of knee replacement, be it partial or full.
4. Because of what happened and the subsequent surgery, in all likelihood the plaintiff will not return to any level one, potentially level two, sporting activities, and will have future difficulty with work, social, exercise, sporting and leisure activities.
5. He last saw the plaintiff on 7 December 2023.
6. He was asked specifically about the plaintiff's capacity for working in and accessing small and confined spaces, working twelve-hour shifts and heavy and awkward lifting. He thought the plaintiff should have the ability to do most of his pre-injury duties, but he could not comment on the twelve-hour shifts. It was likely there would be deterioration of the left leg injury, irrespective of the plaintiff's workplace employment.

1. The plaintiff was examined in November 2024.
2. The plaintiff did not report pain at rest, but had an altered sensation in his entire leg. It felt numb compared to the right. He had pain on movement in the knee with a severity score of 2-3/10. He was not able to kneel and had occasional ankle pain. His left knee occasionally swelled, but did not lock or fall. He stated that he had no leg length difference and does not walk with a limp.
3. The plaintiff's career aspiration was to work in the mines as an electrician, as this would be more financially rewarding, but he believed he was no longer able to do so, attributing this to the longer days required and he was concerned he no longer met the fitness standard required for the role.
4. The plaintiff was currently working in his pre-injury role on a full-time basis, but with workplace modifications of no working in roof spaces or underneath houses, secondary to his inability to kneel or balance. Without these adjustments, he was not medically fit for his entire remit and may struggle to find alternative employment that would accommodate his medical restrictions, which may limit his career options.
5. The plaintiff may experience greater restrictions as he ages, secondary to his injury, which may curtail his ability to work to retirement age. He should be restricted from kneeling, climbing, working at height, roles that require him to move at speed and walking on uneven ground for the foreseeable future. This is a permanent partial incapacity. He is not fit for his pre-injury role without workplace adjustments.
6. The plaintiff has no capacity for the three activities enquired after - capacity for working in and accessing small and confined spaces, working twelve-hour shifts and heavy and awkward lifting. These activities increase the strain and stress through his leg which will cause an aggravation of his symptoms.

1. Mr Asaid examined the plaintiff in November 2024.
2. The plaintiff reported he continued to experience pain and discomfort in his left leg and knee. It was a dull ache, but could occasionally become a sharp shooting pain. He had simply learnt to live with his pain and manage his activities accordingly. The pain was more pronounced towards the end of a long day at work. His knee does not feel unstable or give way. He has some difficulties squatting and kneeling. He does not take any regular medications and is reviewed by his GP when needed. He was currently undergoing fortnightly physiotherapy treatment.
3. On examination, the plaintiff walked with a normal gait. Lower limb alignment was neutral. He had reduced quadriceps muscle bulk on the left compared to the right. Left knee range of motion was normal and the knee was stable. He had reduced sensation over the peroneal nerve distribution of the left leg.
4. The plaintiff had undergone a left knee-high tibial osteotomy, presumably to prevent or delay further the degenerative changes in the future. It was difficult to make further comment without Mr Hartnett's clinical file as to the indication for the procedure and the possible presence of degenerative changes relating to the injury.
5. For the foreseeable future, the plaintiff may experience a restriction in relation to strenuous physical tasks or activities, including repetitive pushing, pulling, heavy lifting, bending or squatting.
6. He did not believe the plaintiff had the capacity for unrestricted pre-injury duties despite his return to full-time work. He should avoid working in an accessing small and confined spaces, working twelve-hour shifts and heavy and awkward lifting, so as not to aggravate his condition.
7. Given the severity of the plaintiff's initial injury and the multiple surgical procedures performed, he appeared to have made an excellent recovery, to the point where he had returned to full-time employment. Despite this, he was likely to continue to experience some degree of pain and restriction in his activities for the foreseeable future.

1. Flexi Personnel provided a report in January 2025.
2. The salary range for an electrician working in a fixed plant maintenance role within the mining sector in Western Australia, was $150,000 to $200,000, with the typical average salary, $175,000.
3. Working in Queensland, Victoria, South Australia, Tasmania and the Northern Territory, the salary range was $125,000 to $155,000, with the typical average salary, $140,000. In New South Wales, the range was $100,000 to $125,000, with the typical average salary, $125,000.
4. The role of industrial electrician under the ANZSCO code is defined as:

"Installs, services, maintains and repairs intricate and complex electrical and electronic circuitry in industrial settings, including oil or gas installations, mine sites and processing plants."

1. The main tasks are as follows:
   • Installs, connects and maintains electrical control systems in industrial facilities.
   • Diagnoses, fault finds and repairs industrial electrical systems.
   • Performs service and maintenance on electrical systems and equipment in industrial facilities for compliance with safety standards and regulations.
   • Interprets and uses technical drawings, circuit wiring and mechanical diagrams, equipment and cable/connection schedules and manuals to undertake electrical wiring work in industrial settings.
   • Collaborates with engineers and other professionals to plan and execute industrial electrical projects.
2. Electricians in the mining area may need additional certifications and qualifications in areas such as mining industry recognised standard 11 induction, high voltage operations, confined spaces and hazard electrical environments, dependant on the site and conditions of employment.
3. Flexi Personnel also provided advertisements for a variety of jobs:

(a) Hahn fly-in/fly-out electrician new to mining, Perth, Western Australia. Permanent full-time earning potential $150,000 plus a year, with no previous experience required;

(b) electricians, Cunningham Construction, Western Australia, $70 to $90 per hour;

(c) electrician, fly-in/fly-out, Western Work Force Pty Ltd, $75 per hour. 2.1 roster, immediate start. Must hold an A Grade electrical licence.

1. Dr Slesenger examined the plaintiff on 4 March 2025.
2. The plaintiff then described residual pain in the left knee, mainly over the anterior and medial aspect, with associated restriction to the range of knee movement. He had difficulty kneeling on the left, walking over uneven ground, squatting and climbing up and down stairs. He was unable to run and was reluctant to weight bear on the left leg.
3. The plaintiff described the pain as mild to moderate, but aggravated by activity. There is general fatigue, most notable at end the end of each working day. He can stand and walk for two to three hours. He has difficulty lying on his left side and tends to sleep on his right. He noted occasional instability in the left knee.
4. The plaintiff was not taking medication.
5. The plaintiff used to enjoy dirt-bike racing and football, but had ceased as a result of the incident.
6. The plaintiff advised he continued to have difficulty working in restricted or confined spaces, working in overhead compartments or underfloor compartments, and when required, he would be assisted by an apprentice. His return to work arrangement was supportive and he was optimistic he could remain in that role, provided he received the current level of support.
7. The plaintiff cannot return to his pre-injury role and the job demands. His pre-injury roles lie outside his capacity limits. He has not returned to that sort of work. Should he become job detached, he is likely to have difficulty replicating the current return to work arrangements in an open job market.
8. The plaintiff retained the capacity for work involving no push, pull, carry or lift over 10 kilograms, avoiding squatting or kneeling, walking over uneven ground, prolonged standing, and working in restricted or confined spaces.
9. The prognosis must be guarded. In particular, the plaintiff is at risk of degenerative disease of the left knee, although quantification of this risk should be addressed by an expert in the relevant field. Should the plaintiff's symptoms deteriorate, he anticipated the plaintiff would require further review, including imaging and follow up care from an orthopaedic surgeon.

1. Professor Davis saw the plaintiff in March 2025 to assess the neurological consequences of his injury.
2. The plaintiff reported intermittent numbness in the left anterolateral shin and dorsum of the left foot, and that there was some hypersensitivity that felt different to the other side. He advised he was unable to kneel on the left knee and could not lie on the left side. He could not enter roof spaces as part of his job and could not manage confined spaces.
3. Work has been modified to some extent and sporting activities have been affected.
4. As a result of the incident, the plaintiff sustained a comminuted fracture of the left femur and required a total of three subsequent surgical procedures after the initial operation, which involved open reduction and internal fixation. He has an ongoing orthopaedic syndrome, with some discomfort in the left knee, although generally not requiring any algesia and a significant restriction in his working activities.
5. The plaintiff is able to work full time as an A Grade electrician, but with significant restrictions in terms of kneeling, working at height and confined spaces, but he still can work full time and undertake most tasks.
6. The plaintiff perceives a significant impairment of his career prospects and, in particular, his ambition to work as a fly-in/fly-out and potentially establish his own business. There has also been some impairment of his recreational activities.
7. The plaintiff has a superficial peroneal sensory neuropathy without any motor deficit confirmed on studies. There is no evidence of nerve deficit. The plaintiff is aware of numbness, but there is no significant component of dysesthesia and fortunately no features of a Chronic Regional Pain Syndrome. He would not see the superficial neuropathy as being a major contributor to the plaintiff's work restrictions and disability.
8. There is no functional elaboration; the plaintiff is a very straightforward witness.
9. There is no doubt this was a work-related injury. The plaintiff is certainly capable of undertaking suitable employment, but his employment functionality has been compromised to some extent. He is certainly able to work nonetheless full time as an electrician. His impairment is largely orthopaedic and Professor Davis could not see the need for any further intervention at this time but he would defer to orthopaedic opinion.

1. It is not in issue that the plaintiff suffered a compensable injury in the incident. The consensus of medical opinion is he suffered a comminuted distal femoral shaft fracture with hyper trophic non union secondary to the incident.
2. The injury required three subsequent surgical procedures after the original operation which involved open reduction and internal fixation.

1. As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[32]

"... 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."

1. There were no credit issues in this case. I found the plaintiff to be a straightforward witness who did not exaggerate or embellish his level of symptoms.[33]

1. At the commencement of the hearing, I indicated my preliminary view, having read the court books, was that, in the absence of credit issues or other additional evidence, the plaintiff's pain and suffering consequences satisfied the statutory test.[34]
2. Counsel for the defendant did not concede seriousness regarding pain and suffering but indicated the focus was on pecuniary loss.[35]
3. At the completion of the evidence, in terms of the pain and suffering application, counsel highlighted that the plaintiff's symptoms are such that he does not require regular GP attendances or medication beyond one or two Panadol every couple of months. There is no ongoing physiotherapy or other similar type of paramedical treatment. The plaintiff has undergone treatment in the past, but that has come and gone.[36]
   1. The plaintiff's leg symptoms require no more than one to two Panadol every couple of months, so it is not a Dwyer v Calco[37] medication-type case. To the contrary, it is a sparing use of medication, which is indicative of his symptoms.[38]
   2. It is not a case of pain, or waking up in pain, or pain getting worse towards the end of the day, even on long days.[39]
   3. It is accepted medically, there is an ongoing issue in relation to the left leg. In terms of the neuropathy, the only neurologist who has opined, Professor Davis, did not see the numbness of any significance or being a major contributor to the plaintiff's work restrictions and disability.
   4. It is not so much an issue of the plaintiff being a stoic as it is an issue of what he has retained.[40]
   5. The plaintiff's sleep is not affected by his leg, he can drive an automatic vehicle without restriction, he can socialise, there is no limitation on self-care and there is no suggestion of any restriction in domestic activities.
   6. There are significant retained tolerances, with the ability to walk and stand for two to three hours.
   7. It was acknowledged the plaintiff was not engaged in trailbike riding, and football, but the overall consequences do not rise to the level of seriousness.
   8. Given my preliminary comments, counsel for the plaintiff did not make oral submissions as to the pain and suffering application, focussing on the loss of earning capacity issue.

1. The plaintiff is still a very young man, aged twenty-three.
2. In Stijepic v One Force Group Aust Pty Ltd,[41] Ashley JA and Beach AJA, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
3. The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it is relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.[42]
4. The evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors).[43]
5. The plaintiff continues to suffer pain, particularly around his leg. It is a dull ache in his left leg and knee. Leg movement is restricted and certain movements, cause a sharp shooting pain. There is some wasting in his left thigh.
6. His knee is tender and he cannot really kneel on it. He has variable numbness from his foot to his knee and experiences tingles up his leg with movement which is very annoying and upsetting. He has a different sensation in his shin to the rest of his leg.
7. The plaintiff has undergone a range of surgical procedures. Further knee surgery has been foreshadowed by Mr Hartnett.
8. He requires limited painkilling medication and does exercises at home to strengthen his leg.

1. While the plaintiff retains the capacity to work full time as an electrician and do regular overtime, he is unable to do the full range of duties he was able to undertake pre injury.[44]
2. The consensus of medical opinion is that while he is able to work full time, the plaintiff's employment functionality is compromised given his difficulties kneeling and working in confined spaces. His duties have been modified to accommodate these issues.

1. At the time of the incident, the plaintiff was only nineteen. He was a very active, fit young man.
2. Significantly, he was an A grade amateur footballer playing with The Basin, being paid $300 a game. He has not played football since the incident. Trying to run has a jarring effect on his knee.
3. Had he not been injured, he would still be playing at the age of twenty-three. His teammates are now being paid $400 a game. It is upsetting for him to watch them play.
4. He is no longer able to engage in motorbike riding and waterskiing - activities he regularly enjoyed with his friends pre incident.
5. As treating surgeon, Mr Harnett, opined, in all likelihood the plaintiff will not return to any level one, possibly level two sporting activities.

1. The plaintiff has a risk of increasing degenerative change on his leg and in the future will need a partial or full knee replacement as treating knee surgeon, Mr Harnett, opined.
2. As his left leg symptoms have continued over four years despite significant surgical treatment, his impairment is permanent.
3. The evidence does demonstrate that the cumulative impact of the identified consequences fairly described satisfies the statutory test.[45]
4. Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.

1. The plaintiff, a worker under twenty-six at the time of injury, must establish that at the date of the hearing, he has a loss of earning capacity of 40 per cent or more on a permanent basis.
2. The statutory formula under the Act appliable to older workers does not apply and the Court is required to undertake the analysis of loss of earning capacity on common law principles as set out by the Court in Moss.[46]
3. His Honour Judge Brookes conveniently summarised these principles in Jarvis v Woolworths Limited.[47] They were expressed as follows:
   • evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;[48]
   • it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what the plaintiff is likely to earn after it;[49]
   • where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work [the plaintiff] can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity;[50]
   • the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities;[51]
   • the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;[52]
   • the task of the [court] is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.[53]

1. The plaintiff is still able to work in his chosen field as an electrician.[54]
2. An Ellis Management[55] scenario was open, given the restriction in work opportunities open to the plaintiff, but what was highlighted was that he has retained the capacity to remain in full-time work, and apart from surgery, has not had time off work full time. To the contrary, his wage records show that he has engaged in ongoing work at least on a full-time basis with regular overtime.[56]
3. There is no description of what fly-in/fly-out work involves. There is no evidence from an occupational physician in this regard. The "best" is the Flexi Personnel wage rates. There is a general lack of information, which does not overly help a loss of earning capacity claim.[57]
4. The concept of fly-in/fly-out work is not a matter of general understanding -simply working for more extended periods and then longer periods off. It requires expert evidence. There was an uncertainty in this application about what number of days would need to be worked at the mines.[58]
5. In the absence of positive evidence, the plaintiff's onus was highlighted, with the only evidence being the Flexi Personnel report and the advertisements for various jobs.
6. While the plaintiff says what other people have told them, it is significant there is no evidence from anyone about what fly-in/fly-out work involves. The best the plaintiff has is hearsay evidence about what he has been told, as opposed to someone from a mine saying what the arrangement is with qualified young electricians.
7. Further, there is no explanation why that material is absent when the onus is on the plaintiff. It is telling that there is no affidavit from anyone as to earnings in this field of work.[59]
8. In any event, the plaintiff believed he could do the range of tasks required of an industrial electrician set out in the Flexi Personnel document and seemed to confirm that position in re-examination.
9. There is a disconnect between three questions to the various doctors based on working in and accessing small and confined spaces, working twelve-hour shifts and heavy and awkward lifting, when there is no evidence occupationally that those three activities are required in a fly-in/fly-out role.
10. There is no medical evidence that the plaintiff cannot do a fly-in/fly-out job. Moreover, his ability to do so had not been put to the test and he had not even had a medical or applied for a position in an interstate mine.
11. In any event, the whole issue was speculative and on the figures from Flexi Personnel, the plaintiff would still not suffer the relevant loss.
12. Even assuming the plaintiff could not work as a fly-in/fly-out electrician in Western Australia, Flexi Personnel set out the salary range as $150,000 to $200,000 gross per annum, with a typical average salary of $175,000 gross per annum.
13. Sixty per cent of each of these figures is, respectively:
    • $150,000 x 60 per cent = $90,000 gross per annum ($1,730.76 gross per week)
    • $175,000 x 60 per cent = $105,000 gross per annum ($2,019.23 gross per week)
    • $200,000 x 60 per cent = $120,000 gross per annum ($2,307.69 gross per week).
14. The plaintiff has demonstrated the capacity to earn the following working as an electrician with his current employer:

(a) 2023/2024 tax year ꟷ $100,273 gross per annum or $1,928.26 gross per week;

(b) 1 July 2024 to 30 March 2025 - $87,910.50.

(a) averages out to $2,254.10 gross per week; and

(b) annualises out to $117,213.33 gross per annum.

1. Further, the plaintiff has recently and routinely earned significant amounts as follows:

(a) week ending 23 February 2025 ꟷ $2,421.75

(b) week ending 2 March 2025 ꟷ $2,317.75;

(c) week ending 9 March 2025 ꟷ $2,542.75;

(d) week ending 16 March 2025 ꟷ $2,085.65; and

(e) week ending 26 March 2025 ꟷ $2,592.75.

1. The decision of the Court of Appeal in Margriplis-Hampton v Spendwatt Pty Ltd[60] is relevant to the plaintiff's claim that without injury, he would be running his own business.
2. In that case, a worker under twenty-six was relying on the earnings of a subcontractor or what the plaintiff would have to pay a subcontractor. As stated in paragraph 13:

"We agree with his Honour's observation that it cannot simply be assumed, in the absence of evidence, or from the limited evidence set out above, that the earning capacity of sub-contracting electrician, or of Mr Margriplis-Hampton were he engaged in that work, can be determined simply by reference to the hourly rate that a subcontracting electrician can charge. It cannot simply be assumed, in the absence of evidence, that the hourly rate can be achieved for 40 hours a week for 52 weeks a year. To take as an example, an electrician contracting out at $70 per hour for 35 hours a week for 48 weeks a year would receive $117,600 per annum, which would be insufficient for Mr Margriplis-Hampton's purposes. Further, on a 'common law' assessment the expenses of operating as a subcontracting electrician would have to be taken into account. There was no evidence from Mr Margriplis-Hampton that, for example, had he not been injured he would have worked for 40 hours a week 'on the tools' for 52 weeks a year, and performed the necessary administrative and management duties in the evenings. It is noteworthy that Mr Margriplis-Hampton in his own business employed electricians and plumbers at the lower employee rate, and only subcontracted them at the higher rate, in his words, 'a little'. It was incumbent on Mr Margriplis-Hampton to lead some evidence on these points if he were to establish the required loss. He did not do so."

"Counsel for Mr Margriplis-Hampton in this Court, citing State of New South Wales v Moss, emphasised that an assessment of loss of earning capacity may often have to be made on the basis of imperfect evidence and may require broad assessments. So much may be accepted. But this was a case where two specific approaches were put to the primary judge, which the primary judge, correctly in our view, rejected. Counsel in this Court did not, and could not, point to any argument put below, beyond those referred to above, that he contended was wrongly rejected. Often, persuasive evidence as to what a young person would have done or earned if not injured, particularly over the years or decades to come, is very difficult to obtain or to assess. In a damages assessment, a figure will often have to be determined, doing the best that can be done in the circumstances. But where, as here, a party seeks to put forward a specific case based on how but for injury that party would, now, be working, or how that party would, now, be operating their own business differently, something more is required than was led here. All evidence is to be weighed according to the proof which it is in the power of one side to have produced and the power of the other to have contradicted. Mr Margriplis-Hampton did not lead the evidence that he might have been expected to lead, based on his own knowledge of his own circumstances, to support his case as put. His Honour was entitled to conclude, without reaching a final figure himself, that the required 40 per cent loss had not been established. Even having regard to the principles set out in State of New South Wales v Moss, Mr Margriplis-Hampton was asking his Honour to engage in impermissible speculation."[61]

1. This case highlights what is known, that the plaintiff has the onus of establishing the requisite pecuniary loss and that such loss is permanent. And what the Court does not have is evidence to establish he cannot work as a fly-in/fly-out worker, and even if the Court was satisfied there was such evidence, he does not suffer the requisite loss.[62]
2. Further, the plaintiff's approach in terms of his earnings if he was able to run his own business was exactly what was criticised by the Court in Margriplis.[63]
3. As the Court in Margriplis explained, on a common law assessment the expenses of running a business had to be taken into account. Mr Waldron does not assist the plaintiff, making no mention of expenses, just putting a figure in the range of $180,000 to $200,000, which the plaintiff could have realistically achieved if he had been able to pursue a dream of running his own business. Further, Mr Waldron did not say when the plaintiff would have taken this course or what is involved.[64]

1. The plaintiff was injured when he was nineteen and an apprentice, having only done Year 10. It should be accepted he intended to pursue higher earnings as a fly-in/fly-out or start his own business, as he and his father confirmed. The plaintiff deposed he was keen to advance his career and become a high earner.
2. The plaintiff had not returned to pre-injury duties and was only performing suitable duties with significant restrictions on his capacity to work as an electrician, as Professor Davis, Dr Awad and Dr Slesenger confirmed.[65]
3. The plaintiff is currently working in protected employment with a very good employer who is very understanding. That is why he has been able to continue to work, but he would have difficulty on the open market. Dr Awad, and in particular Dr Slesenger, considered the plaintiff cannot return to his pre-injury role and was likely to have difficulty replicating the current return to work arrangements if he became job detached.
4. It is also relevant that the plaintiff's medical condition is likely to deteriorate in the future. Dr Slesenger noted the plaintiff requiring time off work and a reduction in his capacity for suitable employment. Mr Hartnett refers to the plaintiff developing arthritis with the osteotomy performed to try and delay that condition and he thought the plaintiff would require ongoing treatment and eventually some form of knee replacement.
5. As Dr Awad described, the plaintiff may not be able to work until retirement age.[66]
6. The plaintiff is stoic, he does not make much of his pain, but there is wasting in his left thigh and calf, a centimetre in the thigh and two centimetres in the calf, some laxity in the knee and restricted range of movement.[67]
7. Those matters can all be taken into account in the plaintiff's case and it is not a pure mathematical calculation.[68]
8. The plaintiff is presently working as an electrician performing supervisory and limited duties as an electrician on a base rate of $50 per hour plus some overtime. His salary is $98,800 gross per annum.
9. To 30 March 2025, he earned $87,910.50 gross, including overtime. This equates to $109,888 for the financial year ending June 2025.
10. The 60 per cent figure is just under $185,000.
11. But for his injury, the plaintiff's intention was to become a fly-in/fly-out worker and then run his own business.
12. As a fly-in/fly-out worker, he would have expected to earn between $70 to $90 per hour. For example at Western Workforce, earning $75 an hour with a 2-1 roster, his earnings would be:
    • Two weeks, that is fourteen days, for twelve hours a day at $75 an hour = $12,600
    • One week off, thirty-eight hours at $75 per hour = $2,850
    • Total for three weeks = $15,450
    • Total for fifty-weeks (x 17.33) = $267,749.
13. If the plaintiff was able to run his own business, he could expect to earn up to $200,000 per annum.
14. The plaintiff would have to establish he could earn more than approximately $185,000 - based on current earnings of $110,000 per annum - to establish that he suffered the 40 per cent pecuniary loss.[69]

Has the Plaintiff suffered the requisite loss of 40 per cent on a common law basis?

1. The plaintiff has satisfied the narrative test.
2. I accept for the reasons detailed as to pain and suffering, as a result of his leg injury, the plaintiff's employment capacity is restricted, albeit he can still work full time as an A Grade electrician.
   1. Determination of the plaintiff's loss of earning capacity application requires a consideration of his residual earning capacity and the earning capacity that he would have had had he not been injured.[70]

How the Plaintiff put his case on "without injury" earning capacity

1. In this application, two specific approaches were put by the plaintiff as to his claimed 40 per cent loss - the inability to do fly-in/fly-out work and also to run his own business.
2. While a range of figures were suggested as to the plaintiff's residual earning capacity, I accept this figure is at least $110,000 - being able to earn at least $2,200 a week on a regular basis.
3. To establish a 40 per cent loss based on that figure, he must establish had he not been injured, he would have had an earning capacity of at least $185,000 ($110,000 being 60 per cent of $185,000).

1. There is no evidence of what this role involves in terms of duties, hours, time off et cetera. There is nothing from an occupational/vocational expert. There is nothing from the plaintiff's friends who work in that area, although he deposed he had a number of industry contacts. There is only the plaintiff's hearsay evidence of what his friends have told him.
2. Therefore, there is no medical opinion as to the plaintiff's capacity to do these duties and work the required hours. There was simply an attempt to seek medical opinion on three specified tasks - heavy and awkward lifting, working in and accessing small and confined spaces and working twelve-hours shifts.
3. In any event, treating surgeon, Mr Harnett, thought the plaintiff should have the ability to perform most pre-injury duties but said he could not comment on twelve-hour shifts. Mr Asaid thought the plaintiff should avoid the tasks and Dr Awad considered the plaintiff had no capacity for them so as not to aggravate his condition.
4. The plaintiff's case as to his "without injury" earning capacity was based on the highest wage figures available - $70-$90 per hour in the two Flexi job advertisements. It was argued that the plaintiff had established the requisite loss as he would have earned in the range of $250,000, but for injury.
5. Based on more average of the wage figures from Flexi of $175,000, the plaintiff cannot establish the requisite 40 per cent loss. The wage rates provided by Flexi for work in other state was much lower, with typical averages of $125,000 and $140,00. Working as a new fly-in/fly-out at Hahn had an earning potential of $150,00 plus per year.
6. The onus is on the plaintiff to establish a loss of earning capacity of 40 per cent on a permanent basis.
7. In Margriplis, the Court accepted the fact that an assessment of loss of earning capacity may often have to be made on the basis of imperfect evidence and may require broad assessments.[71]
8. However, in the present application, as in Margriplis, when two specific approaches were put based on how but for injury the plaintiff would now be - something more is required than was led. As in Margriplis, the plaintiff in the present application did not lead evidence that he might have expected to lead to support his case as put. It was incumbent on him to lead this evidence. He did not do so.
9. Even having regard to the principles set out in Moss, the plaintiff is asking the Court to engage in impermissible speculation to simply multiply $70-$90 by 40 hours.
10. In the absence of evidence the plaintiff might have been expected to lead vocational, occupational or other evidence as to fly-in/fly-out duties, evidence from a fly-in/fly-out worker or company engaging such workers - it cannot be assumed what duties were required, how much the plaintiff would have earned and how many hours worked.

1. This was the second specific approach.
2. If running his own business, it was said on the plaintiff's behalf that he could realistically expect to earn up to $200,000.
3. The available evidence was inadequate - limited to the plaintiff and his father and Mr Waldron's rather bland and general statements in his affidavit.
4. Significantly, there is no evidence whatsoever of the expenses that would be involved in running his own business - necessary evidence, as the Court stated in Margriplis.
5. What the Court is being asked to do in assessing the plaintiff's potential income from running is again "impermissible speculation".
6. On the limited evidence available, while accepting there is some restriction in the plaintiff's ability to undertake the full range of electrician duties, applying common law principles, I am not satisfied the plaintiff will suffer a permanent loss of earning capacity of 40 per cent.
7. The plaintiff has not applied for any fly-in/fly-out work. His ability to undertake the duties involved has not been tested. He has not applied to undergo a pre-employment medical for this role.
8. Further, the plaintiff agreed he could do most of the duties identified by Flexi Personnel in the industrial electrician role, when methodically taken though the ASCO duties in cross examination. The ANZSCO role of industrial electrician included working in mine sites.
9. There is no evidence from the defendant that the plaintiff is working in "protected" employment. There is no evidence of the plaintiff having any difficulty completing his apprenticeship or having ongoing difficulties performing his current role or that his job - which he has held for six years - is at risk.
10. Further, significantly, the plaintiff continues to earn in excess of $2,200 per week in his current role.
11. I am not satisfied the plaintiff has established a loss of earning capacity of 40 per cent for the foreseeable future.
12. Accordingly, the application seeking leave to bring proceedings for loss of earning capacity is dismissed.

[1] [2005] VSCA 33; (2005) 14 VR 622

[2] [2010] VSCA 69; (2010) 31 VR 1 ("Haden Engineering")

[3] [2009] VSCA 181

[4] [2000] NSWCA 133; (2000) 54 NSWLR 536 ("Moss")

[8] First affidavit sworn on 8 February 2024 ("First affidavit")

1. [37] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260

[42] See also Maxwell P at paragraph [17] in Haden Engineering

[43] Haden Engineering (supra) at paragraph [11]

[44] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 ("Ellis Management")

[45] Reyes v Tusk Group Pty Ltd [2025] VSCA 20 at paragraph [51]

[47] [2012] VCC 1329 at paragraph [23]

[52] Moss at paragraphs [72] and [74]

[60] [2022] VSCA 15 ("Margriplis")

1. [70] Margriplis (supra) at paragraph [1]

[71] Margriplis at paragraph [16], citing Moss