Ali v Victorian WorkCover Authority

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0096

MOHAMMAD SALEH MOHAMMAD ALI	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	PRIEST, T FORREST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2023
DATE OF JUDGMENT:	23 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 156
JUDGMENT APPEALED FROM:	[2022] VCC 1442 (Judge Misso)

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ACCIDENT COMPENSATION – Appeal – Workplace injury – Worker injured with angle grinder – Claim for serious injury under physical impairment and mental impairment definitions of ‘serious injury’ in s 325 of Workplace Injury Rehabilitation and Compensation Act 2013 – Claim rejected by WorkCover – County Court proceeding commenced – Trial judge dismissed application – On application for leave to appeal the application was confined to mental impairment – Whether trial judge failed to show path of reasoning in dismissing application under mental impairment definition of serious injury – Whether trial judge erred in not granting leave based on mental impairment definition of serious injury – Leave to appeal refused.

Dressing v Porter [2006] VSCA 215, Rodda v TAC [2008] VSCA 276, Poholke v Godlacres Trading Pty Ltd [2016] VSCA 232 and Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249 referred to.

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Counsel
Applicant:		Mr C Hangay and Mr B Johnson
Respondent:		Ms F Ryan SC with Mr R Kumar
Solicitors
Applicant:	Zaparas Lawyers
Respondent:	Wisewould Mahoney

PRIEST JA
T FORREST JA
KAYE JA:

The applicant was employed by Australian Japanese Pty Ltd. His role involved repairing cars, driving a forklift and a tow truck, removing car parts, and reassembling both parts and cars.
On or about 5 November 2016, the applicant suffered an injury at work to his left forearm whilst using an angle grinder.
The applicant, as plaintiff, brought an application pursuant to s 328 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’) against the respondent, the Victorian WorkCover Authority (‘VWA’). The applicant claimed in respect of the injuries said to cause impairment to his left upper limb and neck, together with psychiatric injury. He relied on both paragraphs (a) and (c) of the definition of ‘Serious Injury’ in s 325 of the WIRC Act. The Serious Injury Application was rejected by the VWA. The applicant then commenced a proceeding by Originating Motion in the County Court pursuant to s 335 of the WIRC Act.
The hearing in the County Court took place over four days on 10, 11, 12 and 17 August 2022. The trial judge dismissed the application with costs.[1]
[1]Mohammad Saleh Mohammad Ali v Victorian WorkCover Authority [2022] VCC 1442 (‘Reasons’).
The applicant brings this application for leave to appeal pursuant to s 14A of the Supreme Court Act 1986. This Court may only grant leave to appeal where the appeal has a ‘real prospect of success’.[2]
[2]Supreme Court Act 1986 s 14C.
The applicant advances two grounds of appeal:
a) Ground 1: In dismissing the application relying upon paragraph (c) of the definition of serious injury (mental impairment) the learned trial Judge failed to show a proper path of reasoning.
b) Ground 2: The learned trial Judge erred in not granting the Applicant leave based on paragraph (c).
It will be observed immediately that the applicant has confined this application to para (c) of the definition of ‘serious injury’ in s 325 of the WIRC Act. In other words the scope of this application is confined to the judge’s finding that the applicant had failed to demonstrate that in the workplace he had sustained a ‘permanent severe mental or permanent severe behavioural disturbance or disorder’.

Background

On or about 5 November 2016 the applicant was injured in his workplace. It is undisputed that, whilst using an angle grinder to cut a car chassis, the angle grinder kicked back and caused a deep laceration on the underside of the applicant’s left forearm about halfway between his wrist and elbow. The ulnar artery was wholly divided, as was 90 per cent of this ulnar nerve and about 50 per cent of the flexor carpi ulnaris. The immediate impact of the laceration included blood spraying out from the laceration.
The applicant was initially treated at Monash Hospital. He was then transferred to Dandenong Hospital where he underwent surgery involving debridement of the wound, as well as artery, nerve and tendon repair.
Over time the applicant asserts that in addition to the directly affected area, his left hand, forearm and elbow became increasingly painful and he started to experience pain in his left shoulder and neck. To several treating medical practitioners he maintained that his left arm had become effectively useless.
In the County Court hearing the applicant’s case was opened by counsel who, in addition to relying on the physical injuries and impairments set out above, relied on certain psychiatric and psychological evidence which suggested that the applicant had suffered a Post-Traumatic Stress Disorder (‘PTSD’) — said to be in remission — and a major depressive disorder ‘which has led to two lengthy psychiatric inpatient admissions to date and at least one suicide attempt’.
The respondent opened briefly by stating that its position was that the neck and shoulder asserted injuries were not work-related. There was, it was stated, ‘a substantial credit issue’ which affected the consequences of ‘both the physical and psychiatric injuries’. The respondent’s case was heavily reliant on surveillance video footage which was said to disclose activities entirely inconsistent with the applicant’s presentation and histories to the court and to his various treating and medico-legal practitioners.
As we have said, the judge dismissed the application on both limbs (a) and (c) of the ‘serious injury’ definition contained within s 325 of the WIRC Act. At the hearing of this application for leave to appeal the applicant narrowed the focus of the application a little further. Counsel advised us that in essence there was only one ground of appeal — the judge did not carry out the proper task of evaluating all the evidence in relation to paragraph (c) of the definition, and had he done so he would have allowed the psychiatric component of the application.
We have concluded that this application for leave to appeal must be refused. We consider the judge’s reasons to be careful, thorough and persuasive in all respects. Further, we agree with the judge’s conclusion that the applicant had failed to demonstrate that, as a result of the workplace injury, he had sustained a ‘permanent severe mental or permanent severe behavioural disturbance or disorder’ as required by s 325 of the WIRC Act. What follows are our reasons for rejecting this application for leave to appeal.

Legal Principles

The following propositions, relevant to whether or not reasons are adequate in serious injury cases, can be extracted from the authorities.
•Adequate reasons must provide an intelligible explanation of the process or path of reasoning which has led to the conclusion reached.[3]
•A judge is required to consider and give adequate reasons in determining each of the substantial issues raised for determination.[4]
•Where there is evidentiary conflict, if one version is accepted over another, the judge must identify the conflict and assign reasons for that preference.[5]
•What will be ‘sufficient’ in a particular case will be influenced by the ambit of the dispute at trial and the way in which the case was presented.
•A sufficient path of reasoning may be disclosed by a combination of what is expressly stated and inferences that may be drawn.[6]
•Perfection in reasoning is not required and an appeal court should not examine reasons too critically with an eye for detecting a want of explanation.[7]
•A judge’s reasons are not required to mention every fact or argument relied upon by the losing party. The record must demonstrate persuasively that the judge failed to discharge his or her judicial duty.
[3]Rodda v TAC [2008] VSCA 276, [98] (Hargrave JA, Ashley and Dodds-Streeton JJA agreeing).
[4]Ibid.
[5]Ibid.
[6]Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232, [78] (Hansen, Kaye and McLeish JJA).
[7]Dressing v Porter [2006] VSCA 215, [26] (Ashley JA, Callaway and Buchanan JJA agreeing); Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249, [71(2)] (Osborn and Kaye JJA).

The issues at trial

Whilst this application for leave to appeal is confined to dismissal of the applicant’s claim with respect to mental or behavioural disturbance or disorder, it is necessary to summarise the evidence in some detail as there is a good deal of overlap of the issues that bear upon both physical and mental aspects of the applicant’s original application.
The applicant was the only witness to give evidence. We shall summarise briefly the contents of his two affidavits and his oral evidence.
In his first affidavit sworn on 21 April 2020 the applicant deposed the following:
Background
He was born on 11 March 1984 in Afghanistan. He is right-handed.
He is married with two children – one three years old and one seven years old.
He attended school in Afghanistan until grade six but did not attend secondary school.
While a teenager in Afghanistan he learnt to be a mechanic and worked in that role until he came to Australia.
He met his wife in Afghanistan in 2009. They married that year and then moved to Australia in 2010.
Upon arriving in Australia he worked for a builder before working for a butcher. He stopped this work when his wife fell pregnant and the couple moved to Melbourne.
Prior medical history
In 2012 he started experiencing pain in his right shoulder due to work. He attended the doctor on several occasions and was prescribed medication, before receiving a cortisone injection which resolved the pain at the time.
After Christmas 2012 he began experiencing panic attacks. He was under a lot of pressure from his family and he believes the episode was caused by an argument. He attended Casey Hospital Emergency Department. He was told that he reported experiencing visual hallucinations as well as panic attacks. He does not recall being referred for any psychological treatment. Nor does he recall having similar psychiatric episodes prior to Christmas 2012 or prior to the date of his workplace injury.
He has been shown notes that record that he attended First Health Medical Clinic on 5 July 2015 for left shoulder pain, and that he had experienced this pain for over a week after opening an engine. As a result of the pain worsening over the next week he was referred for an ultrasound and an injection.
On 15 July 2016, at the same employer with whom he suffered the workplace injury the subject of this appeal, he was hit in the head by a piece of metal attached to a strap that came loose. He recalls that he lost consciousness and as a result of dizziness upon awakening was taken to the Monash Health Emergency Department where he was provided with some analgesia and sent back to the care of his general practitioner. He recalls that the headaches and dizziness last for a about a week after the injury, along with soreness on the left side of his head. He was otherwise in good health at the time of the injury described below.
The workplace injury
His role involved driving a forklift and tow truck, repairing cars and engines, disassembling and re-assembling cars. He worked six days per week.
On 5 November 2016 he was working on the chassis of a car that was too long to fit into a truck and needed to be cut in half. He wanted to use a gas cutter to do so. He often told other workers to use a gas cutter as it is safer than an angle grinder. However, his boss told him to use an angle grinder to cut the chassis as doing so would be quicker and cheaper. Using an angle grinder was not part of his usual job.
He took the angle grinder in his left hand and began to cut the chassis. When the blade was partway in to the chassis the grinder kicked back, causing the grinder’s blade to come out of the chassis. The blade cut his left forearm and injured his left thumb.
He dropped the grinder and called for help as blood sprayed from his cut. On the way to the hospital he was shaking and felt a sharp pain in his left hand but no feeling in those fingers.
Upon arrival at the Monash Hospital his wound was bandaged. He was transported to Dandenong Hospital for surgery which occurred the following day. He understood that the surgery was to repair the left ulnar artery, ulnar nerve and the flexor carpi ulnaris tendon.
He was discharged on 7 November 2016. His left forearm was in a cast for approximately two months after the surgery. His left arm and hand felt numb after the surgery.
He was prescribed Endone for pain after the surgery which he took for approximately one month but stopped due to side effects. This led to an increase in pain in his left hand forearm and elbow, and eventually in his left shoulder and neck.
After the surgery he was referred to South Eastern Hand Therapy. He undertakes hand therapy weekly. His hand therapist referred him to physiotherapy as well as hydrotherapy. At the time he attended a pool for hydrotherapy twice a day but now goes once a day.
He reported that shortly after the incident he began experiencing burning pain in his left hand and as well as difficulty flexing, and that he still has this pain and difficulty.
In December 2016 he was prescribed Lyrica. Since the incident he has also been prescribed Zofran, Panadeine Forte, Lyrica, Endone and Lexapro. He has stopped taking Lyrica at times due to drowsiness and dizziness. He has also been prescribed ointments such as hydrocortisone cream and Bactroban ointment.
In July 2017 he saw Dr Weekes, a pain specialist. On 25 July 2017 he underwent an MRI of his cervical spine and left forearm which he understood revealed minor scarring in his left forearm as well as a mild right paracentral disc bulge at C5/6. Dr Weekes recommend that the applicant undertake left third occipital nerve and C3-C5 medial branch blocks. However, he did not have these procedures due to the uncertainty of their effectiveness as well as his apprehension about needles.
He saw a social worker as he was not sleeping well, feeling very down, fighting with his wife and having bad dreams. The social worker referred him to a psychologist around November 2017. He applicant saw the psychologist once but did not get on with him and so did not see him again.
His psychological symptoms worsened. He saw another psychologist on approximately 12 occasions who referred him to his current psychologist. He also sees a psychiatrist.
He undertook a pain management course at Frankston Hospital for six weeks, three days a week. While it helped him a little, his pain and numbness are still present.
He sometimes pays for massage out of his own pocket as his insurer refuses to pay for physiotherapy.
Loss of income
He has not been able to work since the incident and has lost a substantial amount of income.
He tried to return to work in 2016 or 2017 but was unable to work due to pain.
Pain and suffering consequences
He experiences burning pain as well as pins and needles in his left hand and forearm. At times he also experiences numbness. These sensations wake him at night, and he does not feel that medication is helping with the pins and needles.
He also experiences pain in the back of his left shoulder, as well as his neck. The neck pain remains for approximately 2–3 days until he attends hand therapy.
When his neck is stiff and painful he experiences headaches. He experiences headaches on average approximately twice a week and he takes Panadeine Forte and Lyrica. Prior to the incident he did not experience frequent headaches.
He continues to have hand therapy once a week. He has a 6–7 centimetre scar on his left forearm which he covers if he is wearing a short sleeve top. A number of his left hand fingers are numb, his left thumb has recently started to move involuntarily and his pinkie finger shakes.
He does some house chores and gardening but cannot use his left hand. He can no longer play basketball with his son which upsets him. He can sometimes turn on a tap with his left hand but feels pain. He cannot open a jar, and struggles to lift or carry more than around three kilograms of weight with his left hand without pain. He has also had to restrict his prior swimming activities.
Currently he takes 150 milligrams of Lyrica twice a day, two grams of Panadeine Forte daily, 50 milligrams of Sertraline daily and 30 milligrams of Mertazapine daily. He also takes Nexium and Lactulose for the constipation caused by the other medication.
He sees a psychologist once a month. He has trouble sleeping, often waking during the night. He experiences distressing dreams and wakes in a bad mood. He frequently thinks about the incident and experiences flashbacks. Sometimes when he is driving he forgets how he got to his destination.
He has experienced a decline in his intimate relationship with his wife. He feels worthless and has had thoughts of crashing his car. However he reminds himself of his children when he feels very upset. His relationship with his children has been affected by his mood as at time he gets angry when they want to spend time with him.
He previously had lots of friends and enjoyed socialising yet his low mood has caused him to lose a lot of friendships. He was previously outgoing and enjoyed going on outings with his wife. However, he no longer wants to go out with his wife and children which has led to arguments with his wife. Apart from visiting a mechanic friend and at times going out with his wife and children he prefers to spend his time alone.
He misses his work and feels greatly distressed when he thinks of the impact of his injury on this ability to work. He feels jealous of his friends who are able to work. His current financial situation has put a great deal of stress of his relationship with his family. He has to be ‘dragged out’ of the house to spend time with his family and when he does he feels like a ‘zombie’.
He requested a serious injury certificate for the injuries he sustained due to the incident.
In his further affidavit sworn on 2 August 2022 the applicant deposed the following:
Since affirming his first affidavit he separated with his wife. However, they reconciled and he continues to live with his wife and two children.
Current symptoms
Left upper limb
His left upper limb symptoms have remained largely the same since he affirmed his first affidavit.
He continues to suffer from burning pain in his left hand and forearm which is constant but varies in intensity. The pain extends from his fingertips, up his arm, in his elbow, to the top of his left shoulder and into the left side of his neck.
Increasingly the fingers in his left hand lock. The fingers become stiff and require massaging before he can move them again. The fingers tend to lock at five or more times each day. From time to time his fingers make uncontrollable movements.
He continues to experience numbness, particularly in the palm of his hand and in his two little fingers.
The area around his scar is extremely sensitive to touch and he regularly wears an arm band over it. Looking at the scar gives him anxiety. Upon leaving the house he tends to wear gloves and a bandage around his left arm. The symptoms in his left upper limb are worse in cold weather.
The pain in his left upper limb is aggravated by driving, reaching, pushing/pulling movements and lifting. He tries to limit driving as using the steering wheel aggravates his pain. He also now has very limited patience, including on the road.
He suffers from reduced grip strength in his left hand. His grip is also compromised when his fingers lock up.
His left upper limb injury badly affects his sleep. He can no longer sleep on his left side and is woken during the night by pain, usually several times. He usually has to go and put hot water on his left hand or use a heat pack in order to go back to sleep.
Neck
His neck symptoms have also remained largely the same since he affirmed his previous affidavit.
He continues to suffer from constant neck pain as well as headaches. His neck feels heavy. His neck is also constantly stiff and the stiffness is worse in cold weather and upon waking.
The pain in his neck is aggravated by turning his head to the side (left side is worse than right), looking up or down, lifting, reaching, pulling and pushing.
Mental health
His mental health symptoms have badly deteriorated since he affirmed his first affidavit. This occurred in the context of medical and financial worries, as well as concern for his extended family who remained in Afghanistan.
Earlier in 2022 he became suicidal. He felt like he was spiralling into depression and became further withdrawn.
His anxiety worsened and he usually suffers panic attacks several times a week. He has also stated grinding his teeth.
He regularly gets teary, and is irritable and frustrated. He struggles to focus or to remember things. He often does not shower or wear clean clothes and some days he struggles to get out of bed. He continues to suffer from nightmares. He has lost hope for the future.
Recent and current treatment
On or around 12 May 2021 he had an MRI of his left shoulder and neck. In or around June 2021 he was sent for nerve conduction studies.
On or around 25 August 2021 he was hospitalised after experiencing suicidal thoughts and a panic attack. In or around September 2021 he was admitted to the Austin Hospital PTSD Unit. The team at the Austin Hospital recommended that he completed a second pain management course which he commenced in February 2022. Before commencing that course he began to see Dr De Fonseka, psychiatrist.
In or around May 2022 he was admitted to the South Eastern Private Hospital under Dr De Fonseka. He underwent TMS therapy while in hospital and his medications were changed by Dr De Fonseka.
He sees his general practitioner on a regular basis and sees his psychologist and psychiatrist about once a month. He continues to see his hand therapist, usually twice a week. He sees his physiotherapist usually about once a month. He undergoes hand therapy and hydrotherapy, and attends a pain specialist clinic every few months.
He currently takes the following mediation: Lyrica, Panadeine Forte, Maclobemine Sandoz, Topiramate, Pariet and Lactulose.
Capacity for work
Since he affirmed his first affidavit he has not returned to work, nor has he applied for work. He does not believe that he has the physical or mental capacity for work.
He attempted to return to TAFE to study English in 2018 but ceased as he was unable to cope.
Consequences
He is no longer able to swim laps in the pool, which he did most nights before he was injured. He has also taken his son to the basketball court on fewer occasions and when he does so he avoids throwing the ball.
He no longer feels present when he is with his children often feels impatient and angry. He avoids spending time with his children as he does not want to lash out at them. His relationship with his wife has also been negatively affected.
He can no longer follow his hobby of working on cars and has given up on his dream of running his own mechanic business.

The applicant, in evidence, adopted the contents of his affidavits with one minor amendment.[8] In cross-examination he stated or accepted that:
[8]The applicant stated that, when he said in his first affidavit he could not use his left hand to vacuum or cut grass around the house, he in fact meant to say that sometimes he did use his left hand.
•It was possible that in 2015 he had left shoulder problems requiring an ultrasound investigation and an injection.
•The workplace laceration was just above his left wrist. The applicant removed his glove to demonstrate the scar about halfway up the left forearm.
•Later on the pain in his shoulder started.
•He may have told Dr McQuillan[9] on 12 November 2020 that he was now unable to tinker with cars because he had poor concentration.
[9]Treating psychiatrist.
•Maybe he was able to tinker with cars in 2020 but not ‘as usual as…before’.
•There were cars in front of his house but he was unable to fix them. They remain there.
•He may have told Dr Ingram[10] that he was unable to work on cars because of his injury ‘I told everybody that I’m unable to work and even now I cannot work’.
[10]Treating general practitioner.
•His ‘nightmares and…things’ improved after his psychiatric hospitalisation in May 2022 for a time and then ‘got bad’.
•He has pain in his left hand all the time; during winter it increases. He wears the glove all the time, ‘even at night I wear gloves’.
•When it is sunny he wears a cut out glove, and when it is not sunny he wears a full glove — he stated that both ‘irritat[e] me mentally and I’m not comfortable’.
•In 2012 he was admitted to Monash Hospital with a panic attack due to a family argument.
•In August 2021 concerns about his family in Afghanistan caused him to be hospitalised at the Austin Hospital for PTSD. He also said ‘[t]he actual fact is that I was unable to work and unable to support my family and I was more stressed and worried about…’.
•When he was hospitalised at South Eastern Private Hospital in 2022 family issues had brought about a deterioration in his psychiatric state.
•He agreed with Dr De Fonseka, his treating psychiatrist, that the treatment had helped him greatly.
•He is naturally right handed.
•He has two cars registered in his name and his wife has three cars in her name. All Toyotas — a Corolla, two Hiluxes, a Prado and a Camry.
•His job with the defendant involved him repairing and dismantling used Japanese cars. In Afghanistan he had his own mechanical business and employed about 10 people. When he worked for the defendant he received half cash and half ‘they put into my account’. When he made his WorkCover claim he put in the full amount.
•In about 2018 he started selling left over cars (from before the injury). He would buy these cars from Gumtree, look to repair and sell them and make money. These were leftover cars from that pre-injury business. He advertised these cars either on Gumtree or Facebook.
•In 2018 he sold maybe four or five cars. He did not repair them himself but paid a friend to do so. He sold these cars at a loss.
•He sold some cars in 2020 but made no profit. He later retracted this and said he could not remember buying or selling cars in 2020.
•He could not remember selling cars to earn money in 2021.
•He could not remember being treated for a ‘right elbow burn with a car exhaust pipe’ at Casey Superclinic on 18 March 2020. He may have been lying down looking at the underneath of the car and burnt his elbow. He went to have a look at the problem and his friend would resolve the issue.
•He had already seen Facebook material, and Gumtree material in the court book.[11] The witness identified many cars, parts and bikes.
[11]Over 100 pages of the court book were devoted to Facebook entries of the applicant’s various vehicle related advertisements. A table was prepared of more significant transactions.
•He made very little money dealing in these. It is a bad business because he is unable to fix and repair the cars — ‘that’s why I lose mostly’.
•He still has cars and parts for sale.
•Bank records recorded some of his car/parts transactions.
•He could not put some of the skills that he used in his business of selling cars and parts in some other form of employment.
•This is because of the pain in his hand and his low concentration.
•He doubted he could work as a water meter reader.
•He can walk but, under his medication he feels dizzy.
•He is not working on cars, and will have a lot of pain if he lifts above three kilograms.
•He told Dr Mehr he could sit from 5 to 15 minutes (depending on his mood), could walk for 200 meters (although it depends) and could lift two to three kilograms.
•He told Dr Mehr that he was unable to use his left upper limb — his left arm but (in evidence) ‘maybe I can, but it pains’.
•He has significant difficulties when driving.
•He told Dr Weekes that most of the time his pain in his left arm and neck is 8 out of 10 and that is correct.
•He visits friends at mechanical workshops and wrecking yards because he gets bored most of the time.
•He could not say how often he went to those friends’ shops. He would spend five or 10 minutes there when he would visit there.
•His neck is constantly stiff, worsened from turning it side to side and painful.
Various video footage was then played to the applicant. He was cross-examined between clips. Its content and related cross-examination was summarised by the judge as follows:[12]
[12]Reasons, [47]–[72] (citations removed).
47The first film was taken on 4 September 2017, commencing at 8.06am (1.44 minutes). The film showed the following:
•The plaintiff moved around a number of cars parked outside his home.
•He removed a child’s car seat from a red Toyota Corolla and placed it into the passenger side of a white Holden Rodeo utility.
•He carried the child’s car seat in his right hand. He placed it in the Holden Rodeo using both hands, and then used both hands to fix it into position, and then to buckle his son into the car seat.
48Under cross-examination, the plaintiff agreed he was the person shown in the films. He agreed that he was not wearing a glove over his left hand. He said that he does not wear gloves during warm conditions, but he wears a jumper all the time. That is in stark contrast to his earlier evidence. When he was cross-examined earlier, relevant to the pain he experiences in his left hand, he said that he wears the glove all the time, even at night. He held up his left hand, which was covered in a large black glove which extended part of the way down his forearm. He then held up a smaller fingerless glove which he said he wore in sunny conditions.
49The next film was taken on 26 September 2017, commencing at 11.39am (7.11 minutes). The film showed the following:
•At around 11.39am, the plaintiff put his son into the Holden Rodeo and drove to a shopping centre, arriving at about 11.41am.
•He entered a Flight Centre shop and sat talking to a customer service worker. He then walked around the shopping centre.
•At around 11.46am, he and his son entered the Holden Rodeo. He parked the car, reversing it into a car parking space.
•At around 11.53am, he alighted from the Holden Rodeo with his son. He removed a wheelie bag, and walked with the wheelie bag and his son into a building.
•At around 1.06pm, the plaintiff returned to the Holden Rodeo. He placed his son in the car seat and used both hands to buckle him in. He placed the wheelie bag into the car and then drove away.
50Under cross-examination, the plaintiff doubted that he had attended at a Flight Centre. The building he entered with the wheelie bag was the Casey Aquatic Centre. The wheelie bag contained his clothing. The plaintiff was not wearing a glove. Although, the plaintiff was not seen doing anything particularly strenuous with either hand, he appeared to use his left hand freely and without restriction.
51The next film was taken on 9 October 2017, commencing at 9.48am (1.29 minutes). It showed the plaintiff walking in his front garden. He entered the Holden Rodeo and drove off. He was next seen briefly walking in a carpark, then entering the car and driving off. He was not cross-examined on the content of the film.
52Another film was taken on 26 November 2018, commencing at 11.31am (3.53 minutes). It shows the plaintiff and his wife in a Bunnings hardware store. Together, they loaded nine packages of tiles onto a trolley. The plaintiff lifted some of the packages and placed them on the trolley. He stood at the handle of the trolley while his wife pulled it. He appeared to be doing more of the steering than actual pushing of the trolley. The plaintiff and his wife were then at a checkout, and then they steered the trolley down an aisle. The plaintiff took hold of the handle of the trolley, firstly with his left hand and then with his right hand, and then used both hands to push the trolley down the aisle.
53Under cross-examination, the plaintiff denied that he was pushing the trolley with both hands. He said he was pushing it with his right hand and holding onto the trolley with his left hand. He agreed that he was not wearing a glove, but said that he had a “band aid” and was wearing a jumper. He could not remember how the packages were loaded into his car and by whom, and how they were unloaded and by whom. He said that, if he loaded or unloaded, he would have done so with pain. The plaintiff was wearing a long-sleeved jumper. If he was wearing, what he described as a “band aid”, there was nothing visible over his hand and wrist.
54The next film was taken on 3 August 2020 (9.22 minutes). The film showed the following:
•At about 11.07am, the plaintiff alighted from a black SUV. He walked away from the car and then returned to it and drove off.
•At about 11.39am, he was walking along a street holding his phone in his left hand. He was holding it up reasonably close to his face so that he could see the screen of the phone. He looked down at it frequently.
•At about 12.46pm, he was walking down a street with gloves on both hands, and at about 12.54pm, when he was next seen, he was not wearing gloves.
•The plaintiff was then filmed on several occasions for short periods of time. At 12.55pm, he was walking while swinging both of his arms beside his body quite freely. At 12.57pm, and again at 1.01pm, he was holding his phone in his left hand; and at 1.01pm, he spoke to another man for a minute or so, with both looking at their phones.
•At about 1.08pm, and over the next few minutes, he held his phone to his ear using his left hand, and at about 1.25pm, he drove off in his car.
55Under cross-examination, it was put to the plaintiff that he attended a medical appointment with Associate Professor Umberto Boffa, occupational and environmental physician. I gathered from his answer that he agreed he was attending a medical appointment, but he could not remember who he saw. It was put to him that he was not wearing a glove until he arrived at Associate Professor Boffa’s rooms. He gave an unresponsive answer. In the course of the cross-examination about this film, the plaintiff said that the glove psychologically bothers him, so he takes it off, and on this occasion he had it in his pocket. He agreed that he could hold the phone to his ear with his left hand, and added that doing so caused pain, depending on the weather. He said he was on heavy medication at around the time the film was taken.
56The next film is a compilation of film taken on 10 March 2021, 18 March 2021 and 21 March 2021 (16.36 minutes).
57The film of 10 March 2021 commenced at 8.05am and was of two minutes’ duration. It showed the outside of the plaintiff’s home, where a number of cars were parked. He walked around the front garden, and at about 8.07am entered a black SUV, reversed and drove off.
58Under cross-examination, the plaintiff was asked to identify a number of cars parked outside his home. He identified the following as being his cars - a Toyota Land Cruiser, a black Kia, a white Toyota utility and a Toyota Hilux. He said that a brown Corolla hatch and a silver Hyundai might have been his neighbours, and although it was an unresponsive answer to a direct question whether they were his cars, I took his answer to mean that they were not his cars. He was not wearing a glove at any stage.
59Under further cross-examination, he agreed that he attended premises at 39 Collison Road, Cranbourne. He said that he went to that address “because one of my client ask me to take their car from there”. He said that he went to that address to collect a car, which he then took to a wrecker, to whom he sold the wreck.
60The next film in the compilation was taken on 18 March 2021. The film showed the following:
•At about 9.05am, the plaintiff was sitting in the driver seat of a red car for some minutes before alighting. The car appeared to be parked outside his home.
•At about 9.09am, the plaintiff walked around the front of his home. He held a phone in his left hand up to his left ear and spoke for some minutes intermittently. He opened the lid of a wheelie bin with his left hand briefly. He otherwise moved wheelie bins using his right hand.
•At about 9.11am, he got into a red car and drove it onto the nature strip. He then alighted from the car holding a number of pieces of fruit in his left hand held against his chest.
•At about 10.34am, he was again using the phone in his left hand. He drank from a soft-drink can, holding it in his left hand and raising the can to his mouth, tilting his head back, and tilting the can while he drank from it.
•At about 10.35am he reversed a black car into the driveway of his home.
61Under cross-examination, the plaintiff agreed that he was using the phone in his left hand, and carried fruit in his left hand. He then said that he uses his left hand sometimes, but when he does, he always has pain in his left hand. He agreed that he held a soft-drink can in his left hand and drank from it. He said, using his left hand to hold the soft-drink can, was maybe the one occasion that he had done that.
62The next film in the compilation was taken on 6 April 2021. The film showed the following:
•At about 10.01am, the plaintiff drove to an automotive premises with signage describing it as Tyre Tread. He walked along a laneway looking at a white van parked in the laneway. He walked up to the front of Tyre Tread and then walked back to the laneway.
•At about 10.02 am, he entered the rear of a premises of some kind through a sliding door off the laneway.
• Between 11.25am and about 12.54pm, intermittent small sections of film were taken of the plaintiff walking around his house holding the phone in his left hand, sitting in the Holden Rodeo and driving it.
•At about 12.54pm, he parked the Holden Rodeo in a street. He spoke to an unidentified man. The film then shows a large car-carrying truck backing into the driveway of a house. It was carrying a black van.
63Under cross-examination, the plaintiff was asked a number of questions about his activities on that day. He agreed that he was in the area of Tyre Tread. He said that he went there because a friend of his who lives there asked him to go there. He said that he then walked into a factory area through the sliding door.
64Under further cross-examination, he said that he could not remember looking at a green Chrysler van in Scoresby West, but maybe he did. He then said that he could not remember going to other premises at 97 George Street and looking in the front yard at another vehicle, but maybe he did. He then said that he normally purchased cars, not as wrecks, but to fix them up. He said that he could not remember whose black van it was on the car-carrying truck. He said that he just went to the premises where that activity was seen on the film, and then said he could not remember why he was there. When he was asked whether he followed the car-carrying truck, he said that maybe that was the case, but he was simply travelling in the same direction as the car-carrying truck.
65Under further cross-examination, the plaintiff agreed that he was wearing a T-shirt, and was not wearing a bandage on his left upper limb. He then said that he had to take the bandage off and his reason for doing so was “you don’t realise how painful it is to carry that bandage in warm weather. And I had some rashes in my hand, and I had to take it off ”.
66The next film is a compilation of films taken on 26 and 27 May 2021 (22.04 minutes).
67The film of 26 May 2021 was of 20.19 minutes duration. It showed the following:
•At about 11.26am, the plaintiff drove his Holden Rodeo to a business premises, arriving there at about 11.51am. He parked in the driveway and then drove away.
•At about 3.00pm, the plaintiff was in a pokies’ venue for some unspecified period of time. He then left the venue, returned to his car and drove off.
•Between about 3.21pm and 3.39 pm, he was involved in a sustained episode of collecting small pieces of timber, which he loaded into the tray of his Holden Rodeo utility. His car was backed up to the rear of a factory premises.
In summary he did the following:
▪He grabbed small pieces of wood from a red wheelie bin, which appeared to be offcuts of some kind, and threw them into the utility. He used both hands.
▪At one point, he lifted the wheelie bin with both hands to a height where he then emptied the remainder of its contents into the utility, and then lowered the wheelie bin.
▪On about three occasions, he had piles of wood which he carried in his extended arms against his chest. The piles appeared to be substantial. On one occasion, he carried a similar-sized pile, only using his left arm. He threw the piles of wood into the utility.
▪This episode loading the wood into the utility concluded at about 3.39pm, when the plaintiff then used both hands to pull a tarpaulin taut over the piles of wood in the utility.
•At about 4.17pm, the plaintiff went to a wrecker’s yard. He assisted two men wearing orange fluoro jackets to push a red sedan car backwards. The plaintiff took up a position on the passenger side and appeared to apply both hands to the body of the car, and then applied effort in pushing it backwards.
•What immediately followed, was the plaintiff and the two men pushed the red car into the wrecking-yard premises. The plaintiff took up a position at the rear of the car. He applied the palms of his outstretched hands against the rear of the car, and then inclined his body into a position where he appeared to apply force through his arms in order to push the car enough for it to pick up momentum. Once it was in the wreckers’ yard, he placed his left hand on the rear passenger-side of the car and appeared to apply a degree of force through his outstretched arm.
•The plaintiff appeared to remain at the wreckers’ yard for some time, and at 4.42pm, he left carrying a car part of some sort in his left hand. He entered the Holden Rodeo and drove off.
68Under cross-examination, the plaintiff agreed that he went to the rear driveway of Winna Furniture and that he engaged in loading offcuts of wood into the tray of his Holden Rodeo utility. He said that he had pain in his left upper limb while he was handling the wood. When he was asked about carrying bundles of wood in his left arm, he said that it was a mistake to have used his left arm.
69Under further cross-examination, he agreed that he went to a wrecking yard. He agreed that he pushed a red Subaru Forester car, and the reason why he did that was because his friend asked for his assistance. He said that he did not put much force into pushing the car, using his left hand less than his right hand. He went there because he was bored at home, and he needed to do something to pass the time. He agreed that he carried a car radio in his left hand, which he was going to install into another car.
70The next film in the compilation was taken on 27 May 2021, commencing at about 9.14am, and was of about three minutes’ duration. It showed the plaintiff walking, driving his Holden Rodeo and, at about 9.36am, he unloaded wood from the tray of the car using both hands, and at one point held a moderate-sized bundle in his left arm.
71The next, and last, film was also a compilation taken on 22, 23 and 24 June 2022 (7.56 minutes). The film taken on 22 June 2022 (about 1.30 minutes) showed the plaintiff outside his house driving a small blue car, standing outside his house and walking around. The film taken on 23 June 2022 (just under five minutes) showed the plaintiff outside his house and then sitting in the small blue car for some minutes, before alighting from the car and standing on the street outside his house. He was holding a phone in his left hand. It appears that he was wearing a fingerless glove on his left hand, but it was difficult to make that out clearly. He later entered the small blue car and drove off. At about 9.13am, he was in a garden area. Again, it appeared that he was wearing a fingerless glove on his left hand. The film taken on 24 June 2022 (just under two minutes) showed the plaintiff with his wife outside their house. They entered a small white car. Later, he alighted from the small white car with his two sons. He walked around the front of his house. On this occasion, there was no sign of a fingerless glove on his left hand.
72Under cross-examination, he said that the small white car is a Toyota belonging to his wife. He could not recall how long she had owned the car. He agreed that he was seen in the film holding a piece of metal in his left hand and a phone. I should interpose here that I was unable to see him holding something in his left hand resembling a piece of metal, even after watching the film carefully. He agreed that there were a number of cars outside his house. He agreed that he currently has about six cars. He denied that he has been conducting a business buying and selling cars and wrecking cars.

No issue was taken on this appeal with the judge’s summaries either of the footage itself or the cross-examination that followed. Additionally we have viewed the footage ourselves — it is accurately described by his Honour. For reasons we shall expand upon we consider that it was devastating to the applicant’s credibility and reliability as it concerned both the physical and psychiatric aspects of his claim.[13]
[13]See Reasons, [106], [108], [133] and [137].
In further cross-examination the witness:
•Denied he was still wrecking vehicles.
•Stated he was still troubled by stiffness and pain and restriction in his neck and restriction of activities.
The witness wore a black glove on his left hand throughout the hearing below.
In re-examination the applicant stated:
•His mental health had improved with the help of medication, and treatment from his psychiatrist and psychologist.
•He can speak some English but sometimes does not understand what is being said to him.
•He could not be a meter reader — due to his poor language, his lack of computer literacy and his current mental situation.
•He could not be a motor mechanic now because of his mental and physical injuries.
•He cannot drive a manual vehicle because of his hand.
•The wood he collected in the May 2021 footage would be for the fire in his pergola.
Agreed documents were tendered in relation to Facebook posts, Gumtree advertisements and bank records.
Treating medical reports from treating practitioners were tendered on behalf of the applicant. More significant treaters were:
•Mr Nelson Low, reconstructive and paediatric plastic surgeon.
•Dr Janaka Seneviratne, neurologist (nerve conduction specialist).
•Dr Ali Kian Mehr, physician and rehabilitation specialist.
•Dr Gavin Weekes, pain specialist.
•Dr Kathleen McQuillan, psychiatrist.
•Dr Sagarika De Fonseka, psychiatrist.
Medico-legal reports were also tendered on the applicant’s behalf from:
•Dr James Rowe, specialist occupational physician.
•Dr Symon McCallum, pain specialist and specialist anaesthetist.
•Mr Ash Moaveni, orthopaedic surgeon.
•Dr Shahadot Hossain, General Practitioner.
•Dr Moheb Georges, General Practitioner.
The defendant tendered reports including:
•Dr John Anstee, plastic surgeon and reconstructive surgeon.
•Dr Marcus Navin, occupational medicine physician.
•Dr Roy Karna, rheumatologist.
•Associate Professor Umberto Boffa, occupational health physician.
•Mr Kevin Siu, neurosurgeon.
The relevant content of these reports is contained within the judge’s reasons for judgment — we shall refer to it when summarising those reasons.

The trial judge’s reasons

It is necessary to summarise the judge’s reasons in some detail. The judge made very significant adverse credit findings against the applicant and these findings were central to both the physical and psychiatric injury components of the applicant’s case.
The judge set out the applicant’s case at trial. He correctly set out the immediate physical injuries.

Left upper limb injury

Surgery was performed by Mr Cheng Lo, a plastic surgeon. The operation note discloses that the applicant suffered a 100 per cent division of his ulnar artery, a 90 per cent division of his ulnar nerve and a 50 per cent division of his flexor carpi ulnaris. Mr Lo considered that he had repaired all three. The applicant was discharged from hospital with his arm in a cast. He began taking Endone for pain relief but ceased due to an adverse reaction. He subsequently commenced hand therapy and was referred to a physiotherapist.
The judge stated that it was unclear whether the applicant returned to see Mr Lo. However, the applicant did see Mr Nelson Low, a reconstructive and paediatric plastic surgeon, as well as Dr Janaka Seneviratne, a neurologist. Mr Low considered the applicant’s symptoms to be consistent with complex regional pain syndrome. Mr Low considered the applicant’s prognoses was fairly poor and that he did not have the physical capacity to return to his pre-injury work.
In July 2017 the applicant was refereed to Dr Gavin Weekes, a pain specialist. The applicant tendered two of Dr Weekes’ reports dated 19 March 2019 and 29 March 2021. In the first report Dr Weekes was unaware of the operative findings and results of Mr Lo’s operation. At that stage Dr Weekes considered that the applicant had some symptoms indicative of complex regional pain syndrome. Dr Weekes referred the applicant for an MRI and recommend several forms of medication. In relation to his opinion relevant to the applicant’s neck, he considered that the applicant had ongoing neck pain and headaches, which were most likely secondary to cervical spondylosis and cervicogenic headaches.
In his second report Dr Weekes noted that the applicant still had some signs and symptoms of complex regional pain syndrome and that he had undergone a pain management program. Dr Weekes considered that the applicant had no capacity for suitable employment due to his injury. He referred the applicant to Dr Mehr, a pain specialist.
In his first report Dr Mehr diagnosed a chronic pain condition in the applicant’s left elbow, forearm and left ulnar nerve territory, due to left ulnar neuralgia. He also diagnosed chronic left shoulder pain due to sensitisation of the applicant’s pain system, and also due to tendinitis. He considered that the applicant’s condition would not improve. Dr Mehr considered that the prognosis for the applicant returning to his former role was poor, and for alterative work was guarded due to chronic pain, limited English and the psychological impact. In his second report Dr Mehr expressed much the same opinion regarding the applicant’s return to work. This was repeated in his third report.
The applicant relied upon medico-legal specialists Doctor Rowe, Doctor McCallum and Dr Moaveni.
Doctor Rowe was a specialist occupational physician. Dr Rowe considered that the diagnosis of a neuropathic regional pain syndrome was reasonable and appropriate. He considered that the applicant would be restricted in work activities involving use of his left hand and arm and that the development regional pain syndrome was an overwhelming barrier to the applicant returning to work.
Dr McCallum examined the applicant but did not consider that the applicant met the criteria for complex regional pain syndrome. However, Dr McCallum considered that the applicant was not able to return to his pre-injury employment, that he did not have the physical capacity to perform any work in the future.
Mr Moaveni did not think that the applicant could return to any form of suitable employment on a reliable and consistent basis.
The applicant affirmed two affidavits which are set out above.

Films and Facebook posts

The defendant attacked the applicant’s credit and reliability by reference to films taken of the applicant between September 2017 and June 2022, as well as Facebook posts and banking records.
The judge reviewed the film evidence which we have set out at para [21].
Under cross-examination it was put to the applicant that he attended a medical appointment with Associate Professor Umberto Boffa, an occupational and environmental physician. He agreed that he attended the appointment but could not remember who he saw. It was put to the applicant that he was not wearing a glove until he arrived at Professor Boffa’s rooms. The applicant gave an unresponsive answer and later said that the glove psychologically bothers him, but on this occasion he had it in his pocket.
The applicant was cross-examined about the number of cars he owned. He agreed that he currently had about six cars but denied that he was conducting a business buying/selling and wrecking cars.
The defendant submitted that an issue in the case was whether the applicant had set up a business buying and selling cars and/or car parts. Under cross-examination the applicant agreed that he was engaged in buying and selling cars that he intended to fix up and sell but that he had many sitting around which he was unable to fix because of his injuries.
The applicant was taken to his Facebook pages and to a large number of posts which the defendant contended were advertisements for cars and car parts that the applicant had posted on Facebook. The applicant was further taken to a series of deposits made into his ANZ bank account. Under cross-examination the applicant agreed that deposits made by three entities were made by scrap dealers into his ANZ banking account in payment for scrap sold to them by the applicant.

Left upper limb injury — the defendant’s evidence

Dr Anstee, plastic and reconstructive surgeon, examined the applicant. In his second report Dr Anstee considered that the applicant could return to modified pre-injury duties using mostly his dominant right hand.
Dr Navin, occupational medicine physician, examined the applicant in 2017. This examination demonstrated that the applicant had achieved a level of recovery enabling him to undergo a work trial on light duties. He further considered that the plaintiff could return to modified duties on limited hours of five days per week for two to three hours per day, to be reviewed after three months.
Dr Karna, rheumatologist examined the applicant in 2019. Ultimately he found that the applicant was suffering from a chronic psychogenic-driven pain syndrome and that there was no physical basis upon which he could conclude that the plaintiff had suffered an assessable impairment to his neck.
Associate Professor Boffa examined the applicant, and diagnosed a mild-left upper-quarter myofascial pain syndrome and residual ulnar nerve damage. Dr Boffa was of the view that that the applicant could complete full-time work if he avoided repetitive gripping, pushing, pulling, lifting and carrying more than three kilograms with his left hand. Dr Boffa considered that the plaintiff could work as a meter reader and in customer service roles.
Mr Siu, neurosurgeon, also examined the applicant. The judge noted that Mr Siu appeared to have been asked to consider the complaints of the applicant’s neck and ulnar nerve injuries and ignored the applicant’s complaints of pain in his left shoulder. Mr Siu considered that there was no basis to conclude that the applicant had suffered any nerve root entrapment in his neck, and on examination he considered that the applicant’s range of movement in his neck was excellent.

Left upper limb injury — judge’s interim findings

The judge noted that the ‘primary issue’ was the applicant’s creditworthiness and reliability. He observed that the films potentially demonstrated that the applicant has made a degree of recovery more consistent with the defendant’s submissions and with the opinion of Dr Anstee that the applicant had recovered well from surgery, and would improve to the point of being able to return to suitable work.
The judge noted that none of the medical evidence questioned Dr Anstee’s opinion of the applicant’s surgical result — rather, the applicant’s treating practitioners and medico-legal assessors diagnosed a medical condition which they contended caused the current impairment of the applicant’s left upper limb.
The judge cited differences in the medical evidence as to whether the applicant developed complex regional pain syndrome. The judge concluded that the most likely conclusion was that the applicant did not have complex regional pain syndrome and that he found the opinion of Dr McCallum (that the applicant had a chronic pain syndrome with central sensitisation) more compelling due to Dr McCallum’s specialist qualifications as a pain physician and specialist anaesthetist — and that it was also the opinion of Dr Rowe. The judge explained that it was difficult to articulate his reasons for preferring the opinions of Dr McCallum and Dr Rowe, but that they appeared to have concentrated their diagnostic efforts by examining the particular consequences of the ulnar nerve injury, while some other practitioners reviewed the applicant’s whole injury complex.
The judge concluded that the applicant suffered injuries to his left forearm, defined through Dr Lo’s surgery, and that these injuries deserved the diagnoses of a neuropathic-based condition, as described by Dr McCallum and Dr Rowe.
The judge found that the injuries did not encompass the complaints of pain made by the applicant to his left elbow, left shoulder and neck. The judge considered that the evidence of further injury to the applicant’s left elbow, left shoulder and neck at the time of the injury to be unsatisfactory. The judge considered that it was far less likely that the applicant’s pain in his left upper limb and neck occurred during the period he was convalescing and before he was able to use his left arm more actively.
The judge considered while that the applicant’s assertion of very dramatic injuries to his left forearm and hand resonate through his affidavits, oral evidence and medical histories given, on the other hand the films, Facebook posts and ANZ bank deposits showed a very different picture. The judge stated that the films demonstrated that, in a general sense, the applicant was able to go about significant daily activity without observable difficulty to his left forearm, and that he uses his left (non-dominant) arm as often is required, and that he was able to move his left upper limb and neck in a ‘full, free and unrestricted way’.
The judge stated that the 26 May 2021 film showed the applicant engaging in ‘strenuous activity’. He noted that the fact that the applicant was able to place his flat palm against the rear of a car and push it with some effort demonstrated that he has no appreciable difficulty in applying force through his hand, wrist and forearm. The judge stated that both those aspects of the film were ‘entirely against the grain of what he informed his treating medical practitioners about, and also the medico-legal assessors’.
The judge stated that he did not accept that the applicant had told the truth about the nature or extent of the difficulties he (then) experienced with his left upper limb, shoulder and neck, or the extent that he was engaged in buying and selling cars and car parts.
Further, the judge stated that he did not accept that the applicant’s memory was so poor that he could not remember when he purchased the cars or relevant details of the purchases. The judge noted the applicant was ‘more than just reluctant’ to answer question on this matter during cross-examination and stated that when he reviewed the whole of the applicant’s evidence on this issue it occurred to him that the applicant was ‘being deliberately disingenuous.’ The judge observed that the applicant showed the same tendency during cross-examination regarding his ANZ account, and that the applicant eventually admitted that he had been selling car parts to wreckers.
The judge commented that these findings must be compared with the applicant’s assertions in his affidavits. The judge made the following observations:
(a)He did not accept that the applicant’s ability to drive a car was as impaired as he had said in his second affidavit.
(b)He did not accept that the applicant had the degree of difficulty in reaching, pushing, pulling and lifting as claimed in his second affidavit.
(c)He did not accept that the applicant had a tendency to wear gloves.
(d)The applicant made a particular point during his evidence that he wears two types of gloves, depending on weather conditions, but save for the last films, where it looked as though he was wearing a fingerless glove, he went around without wearing a glove, except for the occasion when he went to see Associate Professor Boffa.
The judge stated that the absence of a candid account of the applicant’s capacity as deposed in affidavits or given in histories to treating medical and medico-legal practitioners and given in evidence under affirmation ‘seriously undermine[d]’ his confidence in accepting much of the applicant’s evidence. Further his Honour considered the applicant’s creditworthiness and reliability to be ‘very significantly undermined’.
Turning to the applicant’s neck injury, the judge did not accept that the applicant suffered from constant headaches and loss of movement to the degree that the applicant deposed in his second affidavit. This was because the films demonstrated that the applicant could move his head and neck freely.
The judge observed that the applicant referred to his pain, suffering and loss of earning consequences, however he did not distinguish the extent to which those consequences were caused by his left upper limb injury as opposed to his neck. The judge stated that a disentangling analysis referred to in Peak Engineering[14] was required. The judge noted that an alternative conclusion was open — that the applicant ‘does not experience anywhere near the pain and restriction of movement in his neck that he referred to in his affidavits and oral evidence, nor the histories he gave to his treating medical practitioners and the medico-legal assessors’.
[14]Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67.
For reasons already articulated, the judge rejected the applicant’s submission that he should not be influenced at all by the contents of the films.
The judge noted the applicant’s significant and extensive complaints of pain, incapacity for work and disablement, which had been accepted by some treating practitioners. However, the judge stated that he was more inclined to accept the evidence that the applicant should have recovered significantly and been able to return to suitable employment.
The judge stated that the applicant’s attendance at tyre-sales businesses, factories and wreckers’ yards (as shown in the films) left him with a strong suspicion that the Facebook pages, films and ANZ bank account were not the whole demonstration of the applicant’s activities in relation to buying and selling cars and car parts.
The judge stated that he was not able to determine the nature and extent of the impairments to the function of the applicant’s left upper limb, left elbow, shoulder or neck, or the extent of his incapacity for work. Ultimately the judge was not satisfied that the applicant discharged his onus to demonstrate that, whatever impairment of function he has suffered to his left upper limb, his pain and suffering and loss of earning capacity consequences met the relevant threshold. The judge stated that he did not accept that the applicant’s left shoulder and neck are in any way causally related to the injury to his left forearm — but if he was wrong, he did not accept that they were symptomatic and resulted in any significant impairment of function.

Psychiatric injury — the applicant’s case at trial

The judge began by summarising the applicant’s psychiatric treatment history as follows.
The applicant first saw Dr McQuillan, psychiatrist, in 2019. Dr McQuillan produced a report dated 20 March 2021 in which she stated that she diagnosed the applicant with an adjustment disorder with depressed and anxious mood. The applicant was also referred to psychologists Mr Jacoopi, Ms Milne and Ms Chen.
The applicant’s general practitioner referred him to Dr De Fonseka, psychiatrist who first saw the applicant on 9 December 2021. All four of Dr De Fonseka’s reports were tendered in evidence. Dr De Fonseka noted that the applicant had been admitted to the Austin Hospital’s PTSD Unit in September 2021. She prescribed several forms of medication. The judge noted that it would appear that Dr De Fonseka considered the applicant’s symptoms at that time to be consistent with PTSD and a major depressive disorder.
When Dr De Fonseka saw the applicant on 17 February 2022 she noted that his mental state had deteriorated. She noted that he was a heightened suicide risk, which led to his admission to the South Eastern Hospital under her care from 20 May 2022 until 17 June 2022. While he was an inpatient he had 30 sessions of TMS[15] and a medication review. The judge noted that it appeared that following his discharge from hospital the applicant continued seeing Dr De Fonseka who considered that he remained in a stable mental state after his discharge. Her ultimate diagnosis was a major depressive disorder and PTSD. She considered that the applicant would suffer a deterioration in his psychiatric state if he were to return to his pre-injury work.
[15]Transcranial Magnetic Stimulation.

Dr Ingram, consultant psychiatrist, examined the applicant twice in 2020 and 2022. He produced two reports. In his second report he noted that the applicant’s main problem was chronic pain, and that the applicant had a chronic pain disorder and that the applicant complained of significant depression symptoms. He diagnosed a major depressive disorder (secondary to chronic pain), possibly a chronic pain disorder and PTSD symptoms (largely resolved). The applicant’s prognosis (relevant to his depression) was largely dependent upon a prognosis for his pain. Dr Ingram considered that the applicant was unfit for his pre-injury work, or any other work.

Psychiatric injury — the defendant’s evidence

Dr Rathnayake, consultant psychiatrist, examined the applicant on several occasions between 2018 and 2022 and produced several reports. Dr Rathnayake’s last report referred to two matters which the judge expanded upon. The first was documents which demonstrated that on 30 December 2012 the applicant was admitted to hospital with hallucinations, delusions and panic attacks following an argument with his sister. Dr Rathnayake referred to the applicant becoming psychotic. The applicant’s symptoms only lasted a short period of time. The second matter was the applicant’s concerns about his family who were still in Afghanistan. The applicant reported that his father had been taken prisoner by the Taliban and since then he had not been seen, and that he had lost a cousin due to the Taliban in about 2000.
The applicant was cross-examined on his hospital admissions and was taken to a note of his general practitioner, dated 30 August 2021, who noted that it was because of his concern for his family in Afghanistan that he was hospitalised at the Austin Hospital suffering from PTSD. In Dr De Fonseka’s’ report dated 1 August 2022 she referred to the applicant’s inpatient treatment at the Austin Hospital. Under cross-examination the applicant gave evidence explaining that his subsequent hospital admission at the South Eastern Hospital was connected to the reason why he was admitted to the Austin Hospital.
Dr Rathnayake diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood, and considered that the applicant’s PTSD was in remission.

Psychiatric injury — judge’s interim findings

The judge noted that Dr Ingram’s assertion that the applicant’s major depression is secondary to chronic pain complained of by the applicant, and that the applicant’s prognosis relevant to his depression was largely dependent upon a prognosis for the pain he claims to be experiencing. The judge commented that he thought that that was ‘consistent with what all the other psychiatrists accept’.
At paragraph [133] of his reasons the judge stated:
[133]I accept that the plaintiff suffered a psychiatric injury secondary to the injury to his left upper limb, but not to the degree described by Dr De Fonseka, Dr Ingram and Dr Rathnayake. They accepted that the plaintiff was very significantly disabled by the injury to his left upper limb. The premise upon which they operated is seriously inconsistent with the conclusions I have reached relevant to the nature and extent of the plaintiff’s left upper limb injury, and whether the injuries to his elbow, shoulder and neck are causally related to the occurrence of the incident and his left upper limb injury. That must go to a serious undermining and reliability of their opinions on their diagnoses, and certainly their prognoses.
The judge observed that the psychiatrists’ histories included very little material concerning the applicant’s prior psychiatric history, and that the only psychiatrist who took a relatively full history and made any serious comment on it was Dr Rathnayake. The judge observed that he found this state of affairs unsatisfactory, but that he would reluctantly deal with the issue in the way Dr Rathnayake had — by considering that it was relevant but not to the extent that it interfered with the capacity to express an opinion on the diagnosis and prognosis of the psychiatric injury relevant to the occurrence of the incident.
At paras [135]–[137] his Honour stated:
[135]What is of very considerable importance is why the plaintiff was admitted to the Austin Hospital with a diagnosis of Post-Traumatic Stress Disorder. According to his affidavit, and what he said under cross-examination, there appears to be a clear and strong link between his concerns for his family and the deterioration in his psychiatric state which led to that admission, and the later admission organised by Dr De Fonseka. Dr De Fonseka appears to have understood that the plaintiff was admitted to the Austin Hospital, but on the face of her relevant report, it does not appear that she knew that he had been admitted because of concerns for his family. The best I can do in making sense of all of this medical evidence, is that it would appear there was a causal connection between the downturn in the plaintiff’s psychiatric state due to his concerns for his family, followed by a diagnosis of Post-Traumatic Stress Disorder resulting in the admission to the Austin Hospital, and then a further deterioration for the same reasons, leading to the admission to the South Eastern Hospital, and Dr De Fonseka’s treatment of the plaintiff. In any event, the most recent psychiatric diagnosis is that the plaintiff’s Post-Traumatic Stress Disorder is in remission, and he is likely suffering from an adjustment disorder with mixed anxiety and depressed mood.[16]
[136]I accept that the plaintiff suffered a depressive disorder. I do not accept that the opinions of the psychiatrists who reached that diagnosis are reliable. My reasoning is that the plaintiff’s prior psychiatric condition is relevant, although I have dealt with it in the best way I can by preferring the approach taken by Dr Rathnayake. They did not know of the extent to which the plaintiff is active as demonstrated in the films, on Facebook, and through his banking records. As I have reasoned earlier, the films seriously undermine the creditworthiness and reliability of the plaintiff. The opinions of the psychiatrists, and here again I referred to the way in which it was put by Dr Ingram, is anchored to the nature, degree and seriousness of the plaintiff’s injury to his left upper limb, and also encompassing his left elbow, shoulder and neck. Lastly, and I think of real significance, is the causation of the Post-Traumatic Stress Disorder. It appears to be unrelated to the plaintiff’s left upper limb injury.
[137]Overall, the plaintiff’s evidence relevant to the onset of the psychiatric injury is very unsatisfactory. Not only is there a very serious question about his creditworthiness and reliability, but the histories on which the psychiatrists worked is flawed to the extent I have already referred to, and has left me in a position where I am very uncomfortable in accepting much of what the plaintiff says. Ultimately, I am not satisfied that the plaintiff has discharged the onus he bears to demonstrate that whatever impairment of function he has suffered through the psychiatric injury, his pain and suffering and loss of earning capacity consequences meet the relevant threshold.
[16]This was the opinion of Dr Rathnayake (footnote added).

Analysis

In oral argument the applicant accepted that the judge was entitled to make adverse findings as to the applicant’s overall credit as a witness although he confined this concession to the applicant’s reliability, as opposed to his credibility.
In our view the judge was also entitled to take a very dim view of the applicant’s credibility and gave full reasons for doing so.[17] It will be recalled that the applicant maintained to (nearly) all of the significant treating or medico-legal practitioners that his left arm was severely disabled sometimes to the point of being virtually useless. As we have said we consider the surveillance footage was devastating to the applicant’s case and his credit. Over one hour of footage taken at various intervals over five years demonstrated that, if there was any residual physical disability at all from the original workplace injury, it was not visible to the naked eye. It is unsurprising that the applicant did not pursue the paragraph (a) claim on this application for leave to appeal.
[17]See Reasons, [106].
The applicant made numerous complaints about his levels of disability to the various medical treating practitioners and medico-legal practitioners. We shall set out some of these:
•Dr Weekes’ report dated 19 March 2019 stated that the applicant had described his physical pain as ‘burning sharp paraesthesia type pain’ that averaged ‘approximately 8/10’.
•In a report dated 28 April 2021 Mr Low referred to the applicant experiencing ‘pain which his sharp in nature at all times’ as well as restrictions in everyday tasks such as lifting grocery bags, cleaning, opening a jar and throwing a ball.
•In his report dated 21 March 2022 Mr Moaveni stated that the applicant experienced ‘constant cervical pain causing stiffness’ and that his driving was ‘limited’ and he experienced ‘moderate difficulty in grasping and holding’. Mr Moaveni noted that the applicant ‘noted a driving tolerance of less than an hour’.
•In a report dated 4 March 2022 Dr De Fonseka stated that the applicant was experiencing ‘ongoing chronic pain in his left upper limb’ after his injury’. In a report dated 22 April 2022 Dr De Fonseka referred to the applicant’s worsening depressive symptoms with thoughts to suicide with a plan’.
•In her report dated 20 March 2021 Dr McQuillan reported that the applicant was ‘no longer able to be active, such as taking day trips or playing with his sons’, and was unable to enjoy tinkering or mechanics.
•In his report dated 8 December 2020 Dr Ingram stated that the applicant had reported that the ’constant pain in his left arm and shoulder’ had become ‘significantly worse’ and had led to ‘significant limitations’. He said in this report that the applicant had tried to return to work but had been unable to hold any of his tools. In a further report dated 5 May 2022 Dr Ingram described the applicant’s main physical problem as ‘one of chronic pain in the left forearm with radiation into his left shoulder and this pain had become worse with activity and in the cold, though he had obtained some short-term relief from analgesics’.
•In his report dated 2 October 2018 Dr Rathnayake stated that the applicant had reported ‘persistent pain’ in his left arm and ‘burning pain’ in the fingers of his left hand and his arm, as well as pain in his shoulder. In his report dated 21 July 2020 he stated that the applicant had said that his eyes had become affected and he experienced a sensation similar to ‘someone poking my eyes’. The report dated 12 February 2021 repeated the applicant’s ‘burning pain’ assertion as well as a statement that when the applicant was in ‘severe pain, he thought about cutting off his hand’. The report also referenced the applicant’s claim of ‘persistent pain in his left wrist and left arm’ as well as shaking by the first and fifth digits of his left hand. The claim of persistent pain in the applicant’s left arm also featured in the report dated 15 July 2022. That report also featured the applicant’s assertion that he had difficulty holding a teacup because the fourth and fifth digits of his left hand were ‘numb and weak’.
The judge had a firm basis for his conclusions as to the applicant’s credit. Specifically:
•the applicant dramatically overstated the level of his current left arm symptoms.
•the applicant understated the extent to which he engaged in purchasing and selling cars and car parts since the workplace accident.
•the applicant was deliberately evasive when cross-examined about his post-accident car parts dealings. We agree with the judge’s description that the applicant was ‘more than just reluctant’ to answer questions on this matter, and that overall the applicant was ‘deliberately disingenuous’ on these matters.
•the applicant generally did not wear gloves when carrying out even quite physical activities, despite his assertions to the contrary that he wore a glove or gloves at all times.
•the applicant wore a left glove for his examination with Dr Boffa on 3 August 2020. Film taken both before and after this examination showed that the applicant was not wearing any gloves at those times.[18]
•the applicant did not give a candid account of his true physical capacities to his treating medical practitioners, or to his medico-legal practitioners.
[18]On both occasions that Associate Professor Boffa examined the applicant’s left hand the Froment sign was negative. Associate Professor Boffa, on both occasions, commented that this negative sign suggested lack of effort. In 2018 the witness concluded ‘residual…ulnar nerve damage of indeterminate extent owing to lack of effort’. In 2019 the witness concluded ‘…reported but not verifiable left ulnar nerve symptoms’.
Although the judge accepted that the applicant had suffered a psychiatric injury secondary to the original left upper limb injury,[19] he did not accept that that injury was of as severe as that described by Drs De Fonseka, Ingram and Rathnayake.[20]
[19]Reasons, [133].
[20]Ibid.
The central aspect of this application for leave to appeal is that the judge did not supply sufficient or adequate reasons for this conclusion and that he ignored the amount of psychiatric treatment that had been received by the applicant.
We reject that submission. The judge observed that Drs De Fonseka, Ingram and Rathnayake all accepted the applicant’s account that he was significantly disabled by his left arm, elbow, shoulder and neck injury and further observed that this was ‘seriously inconsistent’ with his findings as to the actual physical injuries to the left arm, and the fact that he had found no causal connexion between the workplace injury and the assertedly related elbow, shoulder and neck symptoms. Thus the judge concluded that the reliability of these opinions, reliant as they were on the applicant’s asserted level of disability, was seriously undermined.[21] This reasoning in the primary judgment is explicit, and when read with the judge’s comprehensive credit findings elsewhere in his judgment, more than adequate. Indeed it is expansive.
[21]Ibid.
The judge also observed that the reason for the applicant’s admission to the Austin Hospital with PTSD was ‘of very considerable importance’. The judge was entitled to conclude that ‘[a]ccording to [the applicant’s] affidavit, and what he said under cross-examination, there appears to be a clear and strong link between his concerns for his family and the deterioration in his psychiatric state which led to that admission…’.[22]
[22]Reasons, [135].
There is no error in the judge’s reasoning. The applicant’s evidence about the onset of his psychiatric condition was quite unsatisfactory. The judge was entitled to conclude that the histories that underpinned the psychiatric opinions were floridly exaggerated. In Dr De Fonseka’s view the PTSD is being adequately treated. In Dr Rathnayake’s view it is in remission. His current psychiatric impairment is an adjustment disorder with mixed anxiety and depressed mood. That condition falls a long way short of constituting a permanent severe mental or permanent severe behavioural disturbance or disorder. We consider that his Honour’s judgment displays a conscientious and careful reasoning path towards an intellectually sustainable conclusion.
Grounds 1 and 2 must fail. There is no real prospect of success and the application for leave to appeal must be refused accordingly.
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[2023] VSCA 156

23 June 2023