Borg v Woolworths Group Limited

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-20-04167

MARY-LOUISE BORG	Plaintiff
v
WOOLWORTHS GROUP LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 11 October 2022
DATE OF JUDGMENT:	26 October 2022
CASE MAY BE CITED AS:	Borg v Woolworths Group Limited
MEDIUM NEUTRAL CITATION:	[2022] VCC 1792

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords:              Serious injury application – difficult application – injury to the lumbar spine
Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Johns v Oaktech Pty Ltd [2020] VSCA 10; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Petkovski v Galletti [1994] 1 VR 436
Judgment:                  Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C J Winneke KC with Mr P Haddad	Zaparas Lawyers
For the Defendant	Ms S Manova	Hall & Wilcox

HIS HONOUR:

Introduction
1This is a “serious injury” application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff, Mary-Louise Borg,[1] in which she seeks the leave of the Court to commence a common law proceeding for pain and suffering and loss of earning capacity damages.
[1]At the commencement of the plaintiff’s oral evidence, the Court was informed that the plaintiff is now known by her married name of Mary-Louise Akunna.
2The proceeding was conducted in the “usual manner”. The plaintiff tendered affidavits, medical reports, radiology, and other documents relied on by her. She gave oral evidence. The defendant similarly tendered medical reports, medical records and documents relied on by it, including social media extracts and video surveillance of the plaintiff.
3The relevant legal principles are well known and are not in dispute, but what is very much in dispute is the application of the relevant legal principles to the facts established by the evidence. In that regard – and for reasons that shall hopefully become clear – this is a difficult “serious injury” application, as the plaintiff’s Senior Counsel candidly conceded at the commencement of closing submissions, when he said, “we don’t pretend that this is an easy case for your Honour, it has its difficulties”.[2] That was an accurate statement, but it is the plaintiff who has the evidentiary onus to establish a “serious injury”.
[2]Transcript (“T”) 132, Line (“L”) 4-6.
4I shall return to discuss the way in which the plaintiff put her claim for “serious injury”, together with the issues for determination, but before then and to provide context, I will first set out the plaintiff’s background and the circumstances that bring this proceeding before the Court.

The plaintiff’s background
5The following brief background is extracted from the plaintiff’s affidavits, some of the other evidence, and agreed facts. I consider that what follows is not in dispute, although some of it required fossicking through the evidence to uncover.
6The plaintiff was born in 1967. She is right-handed and has lived her life within metropolitan Melbourne. She has two adult children from a previous marriage and two grandchildren.
7The plaintiff left school partway through Year 11. She has worked in several jobs including at a cake shop; at Kmart; at a news agency; and as a disability support worker, obtaining a Certificate IV in Disability Work. In addition, the plaintiff has worked in warehousing and holds a Certificate III in Warehousing.
8In her first affidavit sworn 18 May 2020,[3] she said that in August 2011, she started working for Woolworths (“the defendant”) at a warehouse in Broadmeadows (“the defendant’s warehouse”) as a picker and packer, before she was made a permanent employee of the defendant in 2016.
[3]Amended Plaintiff Court Book (“APCB”) page 8.
9The plaintiff’s affidavit evidence of when she started work for the defendant is wrong and ultimately impacted the basis upon which she claimed to have suffered a “serious injury”.
10It transpired from the evidence that when she started work at the defendant’s warehouse in August 2011, she was employed by a labour hire company and the defendant was not her actual employer. During 2014, she left the defendant’s warehouse and worked elsewhere for Toll for several months as a picker and packer. She then returned to work at the defendant’s warehouse, but this was also via a labour hire arrangement and the defendant was not her employer. According to claim documents that were tendered[4] from 7 March 2016, she was directly employed by the defendant on a full-time basis at the defendant’s warehouse.
[4] APCB 276.
11It was agreed between the parties that the plaintiff’s “without injury earnings” with the defendant was $1,568.29 gross per week.[5] If that amount is annualised based on 52 weeks per year, then that equates to $81,551.08 gross per annum. Sixty per cent of that figure is $48,930.65 gross per annum ($940.97 gross per week).
[5]T 102, L 22-25.
12While performing manual work, the plaintiff has had episodes of musculoskeletal aches and pains, both before and after she was employed by the defendant.
13The plaintiff was then at work at the defendant’s warehouse on 8 March 2017. She was working on a machine called a sorter, when a box of cordial bottles was in effect ejected from the sorter, striking the plaintiff in the stomach, and forcing her backwards, causing her to collide with a pallet (“the incident”) and suffer pain in her back.
14There is no dispute that the incident occurred.
15On 7 April 2017, she completed a WorkCover injury claim form for injury to the “lower back”.[6] An employer injury claim report was completed by the defendant,[7] noting that the plaintiff had returned to work on 10 March 2017.
[6]APCB 274.
[7]APCB 276.
16The evidence about the plaintiff’s return to work is vague. It seems she eventually returned to pre‑injury hours (perhaps without overtime) but did not return to pre‑injury duties. At some point in approximately mid-2018, she was provided with modified office duties and performed those duties for the defendant until she was made redundant on 30 September 2018.[8] By then she was on reduced hours, because there was less office work for her as the defendant’s warehouse was in the process of closing. Her redundancy related to the closure of the defendant’s warehouse.
[8]APCB 282.
17In addition to the claim for compensation based on the incident, by worker’s injury claim form dated 12 September 2018,[9] the plaintiff made a claim for injury to the neck, left shoulder and lower back, said to have been caused “[t]hroughout the course of employment including physical repetitive duties pushing, pulling, lifting, bending ect [sic] and 8 March 17 pushed back into pallet”.[10]
[9]APCB 281.
[10]APCB 280.
18The plaintiff has not returned to any employment since she was made redundant.
19At a time, which is unclear, the plaintiff met her now husband via the romantic miracle of the internet, when he was living in Nigeria. The plaintiff travelled to Nigeria/Africa on two separate occasions, as COVID-19 restrictions allowed, during 2019 and 2020, to spend time with her husband. He came to Australia in 2021 and they married in early 2022. He is currently employed full time and they live together in Wollert, Victoria.

The claim for serious injury
20In this proceeding, the plaintiff claimed to have suffered a “serious injury” to her spine although, as put by her counsel, essentially an injury to the lumbar spine.[11]
[11]T 2, L 14-15.
21In the alternative, on the understanding that the defendant would submit there was no organic (physical) injury, the plaintiff relied on a psychiatric condition as the “serious injury”.[12]
[12]T 2, L 15-18.
22The claim for physical injury to the spine was said to primarily relate to the incident. However, in the alternative, the plaintiff claimed that the physical injury to the spine had been suffered because of the heavy nature of the employment she was engaged with at the defendant’s warehouse[13] (“the course of employment claim”).
[13]T 7, L 22-27.
23However, the course of employment claim was abandoned at the conclusion of the evidence, when it became clear that it could not be made out, because the evidence relied on by her in support of that claim had been based on the false assumption that she had been employed by the defendant since August 2011.
24In other words, ultimately the claim for injury to the spine was pressed only in respect to the incident. Therefore, the ‘alternate’ claim based on a psychiatric injury must also be confined to injury suffered because of the incident.
25At this early stage, this raises a real difficulty for the plaintiff because much of the evidence that she relied on was directed to the course of employment claim, namely that injury to the plaintiff’s spine had been caused by the general nature of her work duties at the defendant’s warehouse between August 2011 and the incident.
26In addition to the evidentiary difficulty caused by the plaintiff relying on medical material that conflated the incident with the course of employment claim, several medical opinions combined her physical symptoms (including to body parts not relied on in this proceeding) with her psychiatric/psychological condition, which is impermissible by reason of s325(2)(h) of the Act.
27Returning to how the plaintiff ultimately put her claim for serious injury, she submitted that the incident had caused her to suffer injury by way of the aggravation of degenerative change in the lumbar spine. It was further submitted that, because of the impairment consequences from that injury, she had suffered “very considerable” pain and suffering. In addition, it was submitted that the injury to the spine had also rendered her totally incapacitated for any “suitable employment” such that she was entitled to leave to commence a proceeding for pecuniary loss damages.
28Next, she submitted that if, contrary to the primary way she put her claim, the Court concluded that her complaint of pain in her spine was not substantially organically based, then the explanation for her pain was due to a psychiatric condition caused by the incident that she submitted met the “serious injury” test, namely that it was “severe”.

The defence to the proceeding
29The defendant maintained a consistent approach to this proceeding. First, it did not dispute that there was some type of soft tissue injury suffered to the lumbar spine because of the incident, but it submitted that it produced only a temporary impairment to the plaintiff.
30Second, the defendant submitted that there was a “causation issue” in relation to the alleged injury to the plaintiff’s neck.[14]
[14]T 8, L 22-24.
31Third, the defendant submitted that there was a disentanglement issue[15] and whether there was a substantial organic basis to the plaintiff’s complaints, or whether they are due to non-organic factors.
[15]See the discussion in Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [18] – [24].
32Fourth, the defendant submitted that the reliability and credit of the plaintiff is a relevant issue in the proceeding.
33Fifth, the defendant submitted that the plaintiff’s impairment consequences of any identified compensable injury simply did not meet the statutory threshold, referred to by the defendant as the “range” issue, and so the plaintiff’s condition was simply not “serious”.[16]
[16]In other words, did not meet the threshold of “very considerable”.

The issues for resolution
34The issues to be resolved are:
·        the credit of the plaintiff and whether her evidence is reliable;
·        the identification of compensable injury related to the incident and whether such injury as identified does have a substantially organic basis;
·        assuming that compensable physical (organic) injury to the spine was established, whether the plaintiff had discharged her evidentiary burden to identify the impairment and impairment consequences referable to that physical injury and, as a corollary, whether the plaintiff had separated out the physical contribution as opposed to the psychological;
·        whether the identified compensable physical injury produced “very considerable” impairment consequences, either in respect to pain and suffering or pecuniary loss; and
·        whether the alternate argument was made out, namely had the plaintiff suffered a “serious” psychiatric injury related to the incident.

Credit
35In the broad, the credit or reliability of the plaintiff is a relevant factor in an assessment of “serious injury”.[17]
[17]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76].
36This is a proceeding in which some of the evidence of the plaintiff was unreliable. The defendant did not go so far as to describe the plaintiff as dishonest, but it did appropriately raise several aspects of the plaintiff’s evidence that were proven to be unreliable.
37I will not set out all the occasions in which her evidence was proven to be unreliable, but at this early stage in these reasons I will refer to a few examples of her unreliability to illustrate why this is a difficult proceeding, although the difficulty is one that rests with the plaintiff and not the Court, as it is she who has the evidentiary burden to identify injury, impairment and consequences.
38It was submitted on her behalf that I should “regard this plaintiff as basically a decent and truthful person who may be given to over expressing or being a bit expansive in her descriptions” but that I “could comfortably conclude that she is a person who can be relied on”.[18] While it may well be that, in the broad, she is “a decent and truthful person”, for the reasons that follow, I do not accept that in this proceeding I can comfortably conclude that she can be relied on. In fact, I conclude quite the opposite.
[18] T 163, L 10-18.
39An obvious example of the plaintiff’s evidence that cannot be comfortably relied on is her affidavit evidence about when she started work for the defendant.
40Another example of her unreliability is the evidence she gave during cross-examination about what she had said during a medico-legal assessment arranged by the defendant with Associate Professor (“A/P”) Evan Romas, consultant rheumatologist. The defendant tendered three reports from A/P Romas dated 22 October 2018,[19] 28 October 2019[20] and 24 March 2021.[21] In his most recent report, A/P Romas recorded a history that the plaintiff told him that she is basically “stuck in a room 24 seven”.[22] She said during cross-examination that she did not recall saying that to him. When asked whether that history was true, or whether it was an overstatement,[23] she answered, “[y]eah, maybe an overstatement.”[24]
[19]Amended Defended Court Book (“ADCB”) page 12.
[20]ADCB page 25.
[21]ADCB page 37.
[22]ADCB page 38.
[23] The transcript appears to contain an error in that it records defendant’s counsel asking the plaintiff “is it a statement”. My note records the question as, “overstatement”.
[24]T 21, L 24-27.
41A further example of her unreliability were the descriptions given to several doctors of her ability to walk, as compared to what was revealed in the video surveillance.
42Dealing with the video surveillance, the defendant played in Court, and tendered, video surveillance of the plaintiff obtained at various times on 26 April 2021 and again on 27 April 2021. [25]
[25]Exhibit D1.
43The video surveillance that was of relevance was of the plaintiff walking the streets near her mother’s home on 26 April 2021 from approximately 1:13 PM until approximately 2:15 PM. The video was not a continuous film and there were gaps in time with no evidence of what the plaintiff did during those gaps. The plaintiff highlighted the fact that the video was not continuous, but she did not suggest there had been creative editing.
44I accept that video surveillance must be seen in both time and context. My assessment of the video surveillance of 26 April 2021 was that it demonstrated the plaintiff to walk in a slow manner and to engage in very light physical activity. But having said that, the video surveillance revealed that some of the histories given by her to be unreliable, for example:
·when she told Dr Symon McCallum, pain physician and specialist anaesthetist in his report of 17 August 2021 to her solicitors[26] that “[s]he walks with a stick. She can [sic] about 7-10 minutes”;[27] or
·when she told Dr Meena Mittal, pain physician and specialist anaesthetist, in a report to her solicitors dated 6 April 2021[28] that “[h]er walking tolerance is 5-15 minutes”.[29]
[26]APCB 100.
[27]APCB 101.
[28]APCB 167.
[29]APCB 169.

45The video surveillance tends to a conclusion that the plaintiff was not stuck at home “24/7”[30] and that her tolerance for walking was better than as described by her in her evidence and to several medical practitioners.
[30] T 21 L 22-23.
46It is difficult to assess someone when only meeting them for the first-time during cross-examination. But the impression I formed of the plaintiff is of a woman who was most likely a big personality both before and after the incident. Obviously, some of her evidence is unreliable, but I did not form an impression that she was setting out to be deliberately dishonest.
47In fact, some of the evidence supports a conclusion that she is limited in her range of day-to-day activity. Covert video surveillance obtained by the defendant on 7 July 2022 but played to the Court and tendered on her behalf,[31] depicted her using a walking stick when standing in her garage at home. There is also the agreed fact that the defendant had the plaintiff under surveillance for a total of 45 hours, yet only obtained a total of 23 mins and 30 seconds of actual surveillance.[32] That supports the submission that she is not active on a regular basis.
[31]Exhibit P1.
[32] Summary of agreed surveillance footage document provided to the Court.
48If she is not dishonest, then what has caused her unreliability? Is it because she has described the bad days as part of a condition that fluctuates? Is it because she is someone prone to exaggeration? Is it because she has a psychological reaction which has influenced and amplified her perception of disability? Is it for some other reason?
49There is no satisfactory evidence to resolve this conundrum of the cause of her unreliability, although to some extent the cause is irrelevant. The result is simply that much of her evidence is of little weight. The task of identifying compensable injury, impairment, and consequences referable to the incident has been tangled up in the web of her unreliability.
50There are aspects of this proceeding that are akin to what was said in Petrovic v Victorian WorkCover Authority [2018] VSCA 243, where the Court of Appeal said, albeit in a claim based solely on a psychiatric injury, that –

“74.As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff’s proceeding. This is particularly so in cases involving psychiatric injuries. Additionally, in such cases, the opinions of medical experts (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff’s account. Put shortly, the opinion of any particular expert opinion in a case like the present is usually only as good as the underlying history upon which it is based.”

51At the risk of plagiarism, put shortly, the opinions of several medical practitioners relied on by the plaintiff are not good because the factual basis for those opinions are unreliable.
52Returning to another example of the unreliability of the plaintiff was her emphasis to medico-legal examiners that (effectively) her social life had been destroyed following the incident. To the extent that I understand how Facebook is often utilised to emphasise pleasurable aspects of life, Facebook extracts tendered by the defendant disclosed that her social life had not been destroyed. At times she attends family functions. At times she socialises with her girlfriends. In fact, she had travelled to the United States with a girlfriend in late 2019. That trip was recorded on Facebook to show fun times in Miami and on a cruise.
53The plaintiff said that the evidence of the social activity described on Facebook could be explained on the basis that, in more recent times, her condition had deteriorated.[33] But there is no clear medical explanation for such deterioration and how any deterioration (if it has occurred) could be causally related to the incident. This is another example where the plaintiff’s evidence is unsupported by objective evidence.
[33]See as an example her evidence at T 57, L 25-27.
54In any event, returning to Facebook, the documents tendered also confirmed that the plaintiff had travelled to Africa to meet her husband. While in Africa, she engaged in social, domestic, and recreational activities, including internal air travel to visit her husband’s mother. While there was nothing remarkable about that evidence, it was perhaps remarkable in the context of the plaintiff’s claimed level of impairment.
55Pausing, patently the plaintiff is entitled to meet a romantic partner online and to travel for the purposes of furthering that relationship. But in the context of this proceeding, in light of her evidence of significant social and recreational restrictions, the fact that she could undertake lengthy overseas trips and engage in activity whilst overseas, as well as arrange the necessary visas and the logistics for that travel, does not sit comfortably with her subjective evidence and supports the conclusion that her true residual physical capacity is greater than what she said.
56I conclude that the plaintiff’s evidence in many respects was unreliable. I am unable to accept her broad and subjective complaints in the absence of corroborating objective evidence.

The plaintiff’s evidence
57To further explain my conclusion that the plaintiff’s evidence is unreliable unless corroborated, it is necessary to now deal specifically with the relevant evidence and of what she said in her affidavits, to doctors and in the witness box.
58Commencing with her first affidavit, the plaintiff described her work with the defendant. She said the work involved undertaking repetitive, physical, very heavy, and difficult tasks over long stretches of time, which involved pushing, pulling, lifting and bending. She said further that, “[a]t times, I got strains in the neck, shoulders and lower back from this work.” Regarding the incident she then said, “[f]urther, I was significantly injured from an incident on 8 March 2017 at work” and she then described the incident with the sorting machine, the onset of symptoms and treatments thereafter.[34]
[34]APCB 10, paragraphs 24 to 27.
59The plaintiff then set out her treatment since the incident and of her return to work. Her affidavit paints a picture of struggling during the return to work. She described doing the best she could with light duties and that “[a]fter about a year of alternative duties my position was terminated as the employer did not have suitable duties for me”.[35] That evidence needs to be contrasted with her oral evidence that the reduction in modified duties and her redundancy was actually because the defendant’s warehouse was closing down.[36]
[35]APCB 16, paragraph 79.
[36]T 14, L 29-31; T 15, L 1-30.
60In that affidavit, the plaintiff described ongoing consequences including constant back pain, neck pain and pain in the left shoulder, left arm and elbow. Relevantly, she said as follows:
“94.I used to love walking and keeping fit. I find walking difficult now and have significantly reduced both the amount of walking and, when I do walk, the distance I go. I walk very slowly now. I am also embarrassed by the way that I walk. I am able to walk my dog, but with a significant lead. I take breaks, stopping at the lake or elsewhere to rest. On bad days, I don’t go. Other times, I will go and then I go into extreme pain by the time I get home and pay for it afterwards.
95.I am limited in sitting and standing. If I sit for around 10 minutes, I find that my back squeezes up and I can’t move. I feel the same with standing. Recently, I was making a salad and my back pressure comes on [sic].
96.My pain affects basic things, like the way I get dressed. I now struggle with showering, shaving my legs and tying my own shoelaces, if I wear laces. Some days I even struggle to wipe my own bottom.
97.I struggle looking after and brushing my hair. Brushing is a real problem with my arms up and the same with washing. I often wear a beanie when I am out.”[37]
[37]APCB 17, paragraphs 94 – 97.

61Regarding her travel overseas, in that affidavit the plaintiff said as follows:
”113.I now have a fiancé who is Nigerian. I met [sic] on the Internet. He has been supportive and treats me like a queen. I am hoping that he can get approval to move here. I have travelled there a few times to meet him and to attend a wedding of a friend with my partner. The first time I flew there in August 2019 was a nightmare. I was in extreme pain. The second time I went shortly after the Cortisone injection and that helped a little bit, but I did still struggle. I am not sure how I am going to cope if he does not get approval to move here.
114.Our sex life is also affected.
115.Recreational activities have been affected.
116.I used to love doing gardening and it was my favourite hobby. I enjoyed weeding, and planting. I loved doing that. Now, I am severely restricted in the gardening that I am able to do.”[38]
[38]APCB 19, paragraphs 113 – 116.

62Regarding her social life, the plaintiff said:
“119.I also used to love going out for dinners and to the movies. I find it too painful now. I also don’t like socialising now. I don’t feel myself.
120.I also loved going out dancing with friends most weekends, as well as going to pubs, clubs and concerts. I am in too much pain and I would prefer to stay at home and rest.”[39]
[39]APCB 20, paragraphs 119 – 120.

63The plaintiff swore a second affidavit in which she highlighted that the serious injury application was made in respect of two sets of circumstances. Relevantly, she said:
“(a)An incident on 8 March 2017, when I was struck by a heavy box of cordial which hit me in the torso while I was undertaking sorting duties (the Incident); and
(b) As a result of physical, repetitive and awkward duties involving pushing, pulling, lifting, reaching, carrying, bending and twisting movements, including the maneuvering [sic] of stock weighing up to 20 kg between around August 2011 and 12 September 2018 (the Employment).[40]
[40]APCB 21, paragraph (a); APCB 22 paragraph (b).

64The plaintiff then set out in detail the nature of her work duties with the defendant for tasks she described as pick to belt, sortation, LLOOP and transporter.[41] She described the work as physically straining and causing her to have pain in the neck and shoulders. She mentioned working for Toll Holdings Ltd for around three months in 2014. The plaintiff then repeated the circumstances in which the incident occurred.
[41] APCB 23, paragraphs (a)-(d).
65In her second affidavit, the plaintiff said that her low back pain had progressed since May 2020.[42] She had less tolerance for activity than when she swore her first affidavit.
[42]APCB 27, paragraph 23(a).
66The plaintiff swore a third affidavit on 5 October 2022,[43] in which she set out her ongoing treatment and medication, including Mobic, Temazepam and Panadol Osteo, as well as heat packs daily and a form of magnesium rub and tiger balm. She described taking naturopathic substances like turmeric and glucosamine.[44]
[43] APCB 31.
[44]APCB 34.
67In her third affidavit, the plaintiff said she had completed a pain management program and had reduced her reliance on pain medication. She said, “[m]y levels of daily pain have increased since the time of my second affidavit.”[45] That evidence was consistent with aspects of the plaintiff’s oral evidence that her injury had deteriorated and her symptoms had increased with time,[46] such as her evidence that her condition had deteriorated over the last couple of years and now required her to use a walking frame at times.[47] But again, that evidence sits uncomfortably with other aspects of her oral evidence, such as her evidence in cross-examination that since her husband had moved to Australia she did try and socialise a little bit more.[48]
[45]APCB 35, paragraph 9.
[46]T 18, L 20-31.
[47]T 24, L 15.
[48]T 29, L 10-13.
68On the issue as to whether the plaintiff’s pain, symptoms and impairment had increased over time since the incident, the plaintiff was cross-examined about her ability to now engage in day-to-day activity. She said that whatever she does, she is in constant pain but “[l]ike I just – you’ve got to live”.[49] She now does some light chores around the house because she had finished a pain management program “and they’re really pushing me to try and get back to driving. ‘Don’t let the pain define’ you is what they told me. So I'm trying to get out there and try and live a normal life – as normal as I can.”[50]
[49]T 55, L 20.
[50]T 55, L 25-30.
69Yet she disagreed during cross-examination that she had improved since her husband came to Australia on 1 November 2021.[51] She maintained her position that no part of her body had improved in the last 12 months.[52] She said it felt the opposite of improvement because the pain had started off in her lower back but now it was half of the left side of her body and she could hardly move so “it has deteriorated as the months and weeks and years have gone on.”[53]
[51]T 59, L 28.
[52]T 61, L 13-15.
[53]T 61, L 17-21.
70Pausing again, I am unable to find a satisfactory explanation in the evidence of how or why an injury (if one was suffered), that was described by her as the aggravation of degenerative change in the lumbar spine, could progress to impact the entire left side of her body.
71Next, the plaintiff was cross-examined about the video surveillance of 26 April 2021. That can concisely be summarised in the following exchange:
“Q:Are you suggesting to His Honour that going for a walk like that causes you to go home and be in tears in pain?---
A:Even if I'm – even if I walk for ten minutes, yes. Maybe not back that, that's what I'm saying to you, but now, yes. You're showing footages and things of back then, that's how it was back then. If I could walk for an hour, great. If I could walk for ten minutes, great. My doctors, my physio, everyone's telling me make sure you walk, the longer your distances the better it is for your pain.”[54]
[54]T 68, L 12-21.

72In any event, returning to her evidence in the third affidavit, the plaintiff said she continued to suffer the consequences consistent with what she had said in her earlier affidavits. Curiously, she did not mention the fact that she had married, or that with the encouragement of her husband she was now attempting to socialise more.

The lay affidavits
73Completing the affidavit evidence, the plaintiff relied on an affidavit from Mr Travis Andrew Muir sworn 5 October 2022,[55] which concerned the happening of the incident. It does not add much to the issues now for determination.
[55]APCB 36.
74She also relied upon an affidavit of her daughter, Ms Elyse Maree Borg, sworn 7 October 2022,[56] which also mostly dealt with the circumstances of the incident, but provided some limited evidence to the effect that the plaintiff was now much less active than she was before the incident.
[56]APCB 40.
75Again, curiously in the daughter’s affidavit, there is no mention of the plaintiff’s overseas trips, or that she had married and whether her level of activity had changed since then, or her symptoms deteriorated.
76The evidence in the lay affidavits was not challenged in the sense that the deponents were required for cross examination. But, that evidence for the relevant issues in this proceeding is at best limited and must be assessed through the prism of the reliability of the plaintiff’s evidence.

The medical evidence
A. Physical injury
(i) The plaintiff’s medical evidence
77A lot of medical evidence was tendered by both the plaintiff and the defendant. I shall attempt to deal with that evidence as succinctly as possible and to the extent necessary for the task of identification of compensable injury, impairment, and consequences.
78But, at the outset, and to avoid repetition, I note that a lot of the medical opinions combined the course of employment claim with the incident. A lot of the medical opinions also referred to other injuries not relied on, without satisfactorily identifying the impairment said to have been caused by the compensable injury. Further, a lot of the medical opinions combined psychiatric consequences with physical consequences. I shall now set out in detail the relevant medical evidence which will highlight this broad conclusion.
Dr Minh-Ha Nguyen
79Dr Minh‑Ha Nguyen is a general practitioner who has treated the plaintiff since 1 September 2017[57] at the Coolaroo Clinic, although the plaintiff attended other general practitioners at that clinic for back pain as early as 29 March 2017. In any event, in a report dated 29 August 2018,[58] Dr Nguyen diagnosed chronic lower back pain because of an acute mechanical lower back injury. Then in a further report dated 5 January 2019,[59] Dr Nguyen opined that the plaintiff had chronic pain of lower back, neck, and left shoulder because of an acute mechanical lower back injury, soft tissue injury of the neck and soft tissue injury of the left shoulder respectively.
[57]ADCB 302.
[58] APCB 44.
[59]APCB 47.
80The plaintiff does not rely upon any claimed injury to the left shoulder, although it does get a mention in some of the medical reports as not only ongoing, but productive of ongoing pain and consequences.
81Dr Nguyen then provided a further report dated 1 April 2020[60] repeating the earlier opinion about chronic pain of lower back, neck, and left shoulder, but also describing secondary depressed and anxious mood. Dr Nguyen said the injury occurred at work and was contributed to by her employment with Woolworths. Dr Nguyen said:
“Taking into account, Ms Borg’s ongoing physical and psychological symptoms … I am of the opinion, currently, it would be difficult for Ms Borg to engage in employment, at least not reliably.”[61]
[60]APCB 50.
[61]APCB 51.
82Next, in a report dated 15 February 2021, Dr Nguyen repeated the diagnosis and opinions regarding work capacity. That was repeated in a report of 26 May 2021.[62] Then in a report dated 31 May 2021 to the Department of Home Affairs[63] Dr Nguyen said the plaintiff had chronic pain which is “getting worst [sic]” that was significantly affecting her physical tolerance, mental health, and activities of daily living. Dr Nguyen recorded that a steroid injection to the left trochanteric bursa had been helpful, and that the plaintiff had “severe anxiety and depression”.
[62]APCB 56.
[63]APCB 60.
83Dr Nguyen provided further reports of 18 June 2021[64] and 14 October 2021,[65] before providing a final report dated 26 February 2022.[66]
[64]APCB 62.
[65]APCB 65.
[66]APBC 68.
84In the final report, Dr Nguyen repeated the diagnosis of the current injury/condition as “chronic pain of the neck, lower back, left shoulder and upper limb, left lower limb. She has symptoms of anxiety and depression.” Dr Nguyen said “the prognosis is guarded. I do note the ongoing duration of her physical and psychological symptoms that has not improved significantly.”[67]
[67]APCB 69.
85Dr Nguyen’s opinions are supportive of the plaintiff, but they lump together the injury to the spine (neck and lower back), left shoulder and possibly the left lower limb, as well as symptoms of anxiety and depression. There arises a “disentangling” issue as to Dr Nguyen’s opinions. So, while supportive in the broad, they are ultimately of little assistance for the task of identification of impairment and impairment consequences.
Dr Andrew Ramsay
86Dr Ramsay is another doctor at the Coolaroo Clinic. He provided a report dated 1 September 2018.[68] He described chronic lower back dysfunction and the plaintiff having an adjustment disorder. He said the plaintiff’s medical condition was the aggravation of a previously subclinical medical condition of lumbar facet joint osteoarthritis which had been asymptomatic until the injury in March 2017.[69]
[68]APCB 70.
[69]APCB 71.
Dr Symon McCallum
87Dr Symon McCallum is a pain physician and specialist anaesthetist who has treated the plaintiff since July 2017. In a letter of 12 July 2017 addressed to Dr Sayed Islam at the Craigieburn Superclinic,[70] Dr McCallum reported that the plaintiff had been packing some groceries which resulted in lower back and arm pain. He said the plaintiff could walk for 4 minutes and then she is in too much pain and exhausted. His impression was the plaintiff had chronic lower back pain which may be related to facet joint arthropathy or disc degeneration. He noted neck and left arm pain and a possibility of a lateral epicondylitis.
[70]APCB 73.
88Dr McCallum provided a report to the plaintiff’s lawyers dated 19 August 2018,[71] setting out the circumstances of the referral to him and his treatment. He then provided a further report to the Accident Compensation Conciliation Service dated 29 December 2018[72] which similarly set out the referral to him, his treatment, and opinions. He said the plaintiff had chronic lower back pain which may be muscular in origin or may be related to the facet joint arthropathy and discogenic degeneration.[73] He said the plaintiff would benefit from a job that avoids bending, lifting, and twisting, among other suggestions for treatment.[74]
[71]APCB 76.
[72]APCB 81.
[73]APCB 84
[74]APCB 85.

89Next, in a report to the plaintiff’s solicitors dated 6 April 2020, Dr McCallum again repeated the circumstances of the referral to him, his examination findings and treatment. He had last seen the plaintiff on 20 March 2019.[75] He made a cryptic comment about what the plaintiff should do if under video surveillance. He said that the plaintiff, on his understanding, was not leaving the house because of the surveillance.[76] He diagnosed neck and lower back pain and that the plaintiff had been depressed and anxious. He was asked to answer a broad question whether he thought the plaintiff’s condition was materially contributed to by her employment with the defendant and he said:
“Yes, I do believe that the nature of her job involving bending, lifting and twisting combined with the accident would be materially contributing to her current condition. It is extremely common in patients with a history of anxiety and depression to have worse anxiety and depression due to chronic pain.”[77]
[75]APCB 92.
[76]APCB 93.
[77] Ibid.
90Other items of correspondence from Dr McCallum were tendered but do not add much to the discussion. The next comprehensive report from him is to the plaintiff’s solicitors dated 17 August 2021,[78] which he said should be read in conjunction with his previous report of 6 April 2020. In it, he set out the ongoing treatment, his examination findings, recommendations, and the like. He was again asked questions about the nature of the plaintiff’s employment and the incident as follows:
“Whether the heavy and repetitive nature of our client’s employment (as described in her affidavits) has significantly contributed to any and if so which of her medical condition(s) of her?
[78]APCB 100.
a.Spine (including the precipitation and/or aggravation of degenerative changes to the neck and back);
b.Left hip; and
c.Bilateral shoulders

I reviewed Ms Borg’s two affidavits and they are consistent with the history she has given me.
a.I do believe that the spinal pathology on the MRI is in part going to be related to the nature of her job. I also believe that the nature of her job has resulted in muscular pain in the neck and the lower back. This has resulted in a chronic pain syndrome. She is likely to have undergone central sensitisation. This will not be seen on any imaging.
b.I am unable to comment on any left hip pathology beyond a passing reference to her having greater trochanteric bursitis and having injections for this.
c.I believe Ms Borg’s shoulder pain is going to be largely muscular in origin and secondary to the muscular component or the facet joint component of the neck pain. Some of it may also be radicular in origin. This would also related to the nature of her job.”[79]
[79] APCB 103.

91Dr McCallum was asked a question about the plaintiff’s employment which he answered as follows:
“Whether or not our client suffers from an incapacity to perform her pre-injury employment and/or suitable employment on a reliable and consistent basis as a result of the work-related injuries (dealing with each part in isolation i.e. spine, left hip, bilateral shoulders):
Due to the nature of Ms Borg’s work and the workplace incident, if we take a biopsychosocial approach to her case, she is clearly not suitable for pre-injury employment or suitable employment. This is due to her pain, poor sleep, poor mood and her extremely deconditioned state.”[80]
[80] APCB 104.
92As will be obvious, Dr McCallum has attributed symptoms from which the plaintiff suffers due to the general nature of her work duties, the incident and an emotional response as seen in his comments about taking a “biopsychosocial approach”. Whilst that might make sense from a medical point of view, unfortunately for the plaintiff it is not a permissible approach for the purposes of a “serious injury” application.
93I cannot ascertain from Dr McCallum’s reports what consequences relate to the incident, other than the broad diagnosis that the incident is some ways is related to the degenerative change in the plaintiff’s spine.
Dr Wayne Ng
94Dr Wayne Ng is a neurosurgeon who has treated the plaintiff. He wrote to Dr Islam by letter dated 27 May 2017.[81] He described the plaintiff as having lower back pain following the incident with radiating leg symptoms. He described a need for radiology. Then in a further letter dated 16 June 2017,[82] he described reviewing the plaintiff for ongoing low back and left posterior thigh and calf pain. While the MRI demonstrated a small bilateral L4/5 disc prolapse, he thought her symptoms were not consistent with that radiology and were more consistent with bilateral sacroiliac joint dysfunction. He said there was no need for surgery.
[81]APCB 105.
[82]APCB 107.
Dr Ishfaq Hussaini
95Dr Ishfaq Hussaini is an orthopaedic surgeon to whom the plaintiff was referred for treatment. In a letter dated 22 June 2017[83] Dr Hussaini wrote back to Dr Islam. He noted the plaintiff had injured her back and shoulder in the incident and since then had ongoing trouble with pain in the left shoulder, which had then eased and was in the elbow and arm. He said he thought the main problem was possibly neck related and recommended further radiology. Then, in a further letter to Dr Islam dated 20 July 2017,[84] Dr Hussaini noted the plaintiff continued to be symptomatic with neck, back and left shoulder. He said he had previously seen her regarding her left shoulder, and she had Type 2 acromion and tendinosis of the supraspinatus tendon of the left shoulder. However, he said his feeling was the pain was more neck related than shoulder.
[83]APCB 108.
[84]APCB 110.
Dr David de la Harpe
96Dr David de la Harpe is an orthopaedic surgeon to whom the plaintiff was referred. He reported back to Dr Nguyen on 9 November 2018[85] noting the plaintiff then complaining of neck pain, intermittent arm pain, low back pain and left leg pain. He said the MRI was normal for her age and did not think surgery would help her.
[85]APCB 112.
Dr Christopher Woodgate
97Dr Christopher Woodgate is a consultant in rehabilitation and pain medicine who treated the plaintiff. He wrote to Dr Nguyen by letter dated 17 November 2017.[86] He recorded pain initially in the low back, spreading to the right shoulder. He noted the plaintiff had been able to increase her activity over the last few months as well as undergoing a medial branch block with Dr McCallum. He noted other stressors in the plaintiff’s life and that she was then working 11 hours a week on modified duties. He said his impression was “non-red-flag mechanical back pain from work injury” and slowly improving function.[87]
[86]APCB 124.
[87]APCB 125.
Dr Kilner Brasier
98Dr Kilner Brasier is an occupational and environmental medicine specialist who has treated the plaintiff. Dr Brasier wrote to Dr McCallum by letter dated 8 August 2018[88] noting a complaint of constant pain in the neck and lower back radiating to the buttocks as well as heaviness in the arms, particularly the left shoulder, radiating to the elbow on the left-hand side. Dr Brasier opined the plaintiff had suffered from the aggravation of a lumbar L4/5disc bulge with nerve root involvement and in addition degenerative cervical disc disease. She said the plaintiff was fit for her current suitable duties with restrictions and discussed the possibility of a pain management program.
[88]APCB 126.
Dr Aarathi Vaska & Ors
99Dr Aarathi Vaska is a pain and rehabilitation physician who has also treated the plaintiff. He wrote back to Dr Nguyen by letter dated 11 June 2020[89] following a referral for back pain and widespread pain syndrome following the incident. He discussed the plaintiff’s background, including her depression. He recorded the plaintiff by then having undergone two left hip trochanteric bursa steroid injections and the pain being worse over the left side, but also a complaint of pain in the right ankle, neck, and shoulders. He described the plaintiff as appearing quite distressed.[90] He said the MRI findings were non-specific but the likely diagnosis was “chronic widespread pain” and that the plaintiff would be booked in at a pain physiotherapist and other specialists.[91]
[89]APCB 129.
[90]APCB 130.
[91]APCB 131.
100The plaintiff tendered other reports from Dr Vaska that do not add much to the discussion. She also tendered a report from a podiatrist, Melissa Tan, to Dr Nguyen dated 20 February 2021,[92] as well as reports from Mr Vinnie Sundar, physiotherapist. Those documents also do not add much to the current discussion, save that in a letter written to the National Disability Insurance Agency on 23 November 2021,[93] Mr Sundar noted that the plaintiff ambulated with a walking stick, limited to approximately 100 metres, which does not sit comfortably with what was shown on the video surveillance.
[92]APCB 137.
[93]APCB 140.
Dr Akilan Velayudhan
101Continuing with material from pain specialists, the plaintiff tendered documents from Dr Akilan Velayudhan. The first item of correspondence is a letter to Dr Nguyen from Dr Velayudhan dated 1 April 2022,[94] but it does not add much to the discussion. Next, in letter to Dr Nguyen dated 10 December 2021[95] Dr Valayudhan recorded the plaintiff describing the onset of low back pain symptoms following the incident and then involving the neck, left arm and left leg. He stated the plaintiff had longstanding chronic pain related to her lower back and neck with evidence of C6 nerve root impingement from her recent MRI findings, with a background history of anxiety and depression and that she seemed to be overwhelmed with her progression of pain symptoms. He also described the need for a multidisciplinary pain management approach.[96] He then reported to Dr Nguyen again by letter dated 1 April 2022[97] in which he makes similar comments about symptoms and need for treatment.
[94]APCB 142.
[95]APCB 143.
[96]APCB 144.
[97]APCB 145.
Banyule Community Health
102For completeness, I note that the plaintiff completed a pain management program at Banyule Community Health and received a certificate of completion dated 5 September 2022.[98] Yet despite numerous references in the evidence of the need for a pain management program, this certificate is the only direct evidence of the pain management program. It is of no help to the task of identification of injury, impairment, or consequences.
[98]APCB 149.
Mr Mohammed Awad
103Returning to reports of substance, Mr Mohammed Awad is a neurosurgeon who examined the plaintiff for medico-legal purposes at the request of her solicitors. In a report dated 20 June 2019,[99] he recorded the plaintiff’s then symptoms, treatment, and his examination findings. He diagnosed aggravation of lumbar spondylosis and aggravation of cervical spondylosis and said in respect to causation:
“In my opinion, taking to account the nature of the injury sustained at work on 8 March, 2017 and generally the nature of her repetitive and heavy workplace activities. Her employment has most likely been a significant contribution [sic] factor to aggravation of both her cervical and lumbar spondylosis. In my opinion, the incident at work on 8 March, 2017, remains a significant contributing factor to ongoing pain disability and requirement for treatment.”[100]
[99]APCB 150.
[100] APCB 152.
104In respect to work capacity, at that time Mr Awad opined that the plaintiff did have some physical capacity for extremely sedentary work 2-3 hours per day for a maximum of 2-3 days per week, if a suitable job was available but that in practice it was unlikely that she would be able to procure such employment. He also recommended a pain management program.[101]
[101]Ibid.
105In a further report dated 12 March 2021,[102] Mr Awad recorded that the plaintiff’s then symptoms of constant lower back pain, ongoing cervical spine pain, left arm pain which comes and goes, left leg pain down the back of the leg with numbness in the foot and pins and needles in both feet. He repeated his earlier opinions regarding diagnosis, causation, and work capacity. He opined that the plaintiff’s disability and symptoms substantially stemmed from an organic/physiological factors.[103]
[102]APCB 154.
[103]APCB 159.
Dr Meena Mittal
106Dr Meena Mittal is a specialist pain medicine physician and anaesthetist who has examined the plaintiff and provided reports at the request of her solicitors. Her reports as a whole also combine the course of employment claim with the incident and refer to other injuries and the psychiatric response.
107Dr Mittal’s first report is dated 25 June 2019.[104] She sets out a history of the incident, the onset of symptoms and the plaintiff’s pain. She described her impression as follows:
“Ms Borg is a 51-year-old right-handed woman who presents with the following sources of pain after being involved in a work-related incident.
1.Low back pain is secondary to left-sided paravertebral muscle spasm and bilateral facet joint arthropathy.
2.Left lower limb pain is most likely secondary to left L5 nerve root dysfunction or irritation.
3.Neck pain is secondary to left-sided paravertebral muscle spasm and possibly underlying facet joint pain.
4.Left shoulder pain is most likely secondary to exacerbation of pre-existing acromioclavicular joint arthritis.
5.Left upper limb pain. I am unable to explain the cause of the left upper limb pain. Certainly this sounds neuropathic in nature. She may warrant diagnostic blocks particularly of the left C6 and left C7 nerve roots to ascertain the pathology further.
6.In addition, Ms Borg's condition has been exacerbated by the development of depression and anxiety.
[104]APCB 161.

Please note that Ms Borg does not provide a previous history of low back pain, neck pain, left upper limb pain or left lower limb pain that has required any treatment or has affected her work capacity.”[105]
[105] APCB 165.
108Dr Mittal said the plaintiff’s condition was directly related to the incident at work and that because of that incident she sustained an aggravation of pre‑existing degenerative spine disease both in the cervical and lumbar spine as well as in the left shoulder joint.[106]
[106]APCB 166.
109Dr Mittal provided a further report dated 6 April 2021,[107] which largely repeated her history and examination findings. She repeated her opinions regarding injury to the spine. She said the left shoulder pain was most likely secondary to the exacerbation of pre‑existing acromioclavicular joint arthritis and that the plaintiff’s condition had been exacerbated by the development of depression and anxiety.[108] She was then asked questions about work capacity and placed significant functional restrictions on any residual capacity for employment and ultimately opined the plaintiff had no capacity for suitable employment.[109]
[107]APCB 167.
[108]APCB 171.
[109]APCB 175.
110Then, Dr Mittal provided a further report dated 16 August 2021[110] in which she was asked to answer specific questions. It is convenient to set out several of those questions and answers as follows:
[110]APCB 177.
“1. The nature of the medical condition of each of our client’s:
a.Spine (including neck and back);
b.Left Hip; and
c.Bilateral shoulders.

The nature of the medical conditions for Ms Mary Louise Borg are as follows:
a.Lower back pain secondary to left-sided paravertebral muscle spasm and bilateral facet joint arthropathy at L4/5 and L5/S1 level.
b.Left lower limb pain, is most likely referred pain from the facet joints. I note that the weightbearing MRI lumbar spine has not shown any indication of neuroforaminal stenosis and nerve root compression or irritation.
c.Neck pain, secondary to left-sided paravertebral muscle spasm and underlying facet joint pain.
d.Left shoulder pain is secondary to exacerbation of pre-existing acromioclavicular joint arthritis.
e.Left upper limb pain is most likely secondary to irritation of left C6 nerve root or maybe referred pain from the left shoulder joint. This requires further elucidation.
f.Symptoms of right upper limb pain secondary to utilisation of a single point stick and it is important to exclude peripheral entrapment neuropathy.

I am unable to comment on pain in the left hip and the right shoulder since these were not assessed during my consultations with Ms Mary Louise Borg. She had not specifically mentioned these locations of pain on being questioned regarding her active areas of pain.
2.Whether the heavy and repetitive nature of our client’s employment (as described in her affidavits) has significantly contributed to any and if so which of her medical condition(s) of her?
a.Spine (including the precipitation and/or aggravation of degenerative changes to the neck and back);
b.Left hip; and
c.Bilateral shoulders

I am of the opinion that the heavy and repetitive nature of Mary Louise Borg’s employment as described in the affidavit has significantly contributed to aggravation of pre-existing degenerative changes in the cervical spine, lumbar spine as well as the left shoulder.
3.Whether the incident on 8 March 2017 (as described in the first affidavit at paragraphs 25 to 28) has significantly contributed to any and if so which of our client’s present medical condition(s) of her:
a.Spine (including the precipitation and/or aggravation of degenerative changes to the neck and back);
b.Left hip; and
c.Bilateral shoulders

I believe that the incident on 8^th March 2017, as described in the first affidavit at paragraph 25 to 28, had significantly contributed to the aggravation of pre-existing degenerative changes to the cervical and lumbar spine as well as the left shoulder.
4.Whether any medical condition of our client’s left hip has been materially contributed to by any, and if so which, of her work-related injuries (as stated in the answer to (2) and/or (3) above) by way of altered gait or otherwise:
I am unable to comment on any specific medical condition in relation to Ms Borg’s left hip as described above.”[111]
[111] APCB 177-178.

111Next, Dr Mittal provided a final report dated 6 September 2022.[112] She was again asked specific questions which she answered as follows:
[112]APCB 180.
“1.The current diagnosis of our client’s:
(a)Spine (including neck and back); and
(b)Bilateral shoulders.

The diagnosis of Ms Borg’s neck pain and back pain has been outlined in the body of the report. The diagnosis of Ms Borg’s left shoulder pain has been outlined in the body of the report. The diagnosis of the right shoulder pain is unclear. I also note that she has full range of motion and does not report the pain in the right shoulder to be problematic.
2.Whether the heavy and repetitive nature of our client’s employmenthas [sic] significantly contributed to any and if so which of her medical condition(s) of her?

I believe that the heavy and repetitive nature of Ms Borg's employment has significantly contributed to her condition with aggravation of previously asymptomatic degenerative neck pain and back pain as well as exacerbation of left shoulder pain.
3.Whether the incident on 8 March 2017has [sic] significantly contributed to any and if so which of our client’s present medical condition

I believe that the incident on 8 March, 2017 has significantly contributed to Ms. Borg’s present medication regimen in relation to her spine and left shoulder.

4.Whether any medical condition of our client’s left hip has been materially contributed to by her work-related injuries

Ms Borg did not describe the left hip pain in significant detail. She did indicate that she had a history of trochanteric bursitis for which she was obtaining six monthly cortisone injections. I do not believe that this is related to her work-related injury despite an altered gait pattern.
5.The extent to which our client suffers from any functional restrictions to ordinary activities of daily living as a result of the work-related injuries

Ms Borg currently suffers significant functional restrictions in relation to her personal and domestic activities of daily living. This is as a result of a work-related injury, particularly in relation to the spine.
6.Whether or not our client suffers from an incapacity to perform her pre-injury employment and/or suitable employment on a reliable and consistent basis as a result of the work-related injuries

Ms Borg does not have the capacity to engage in a preinjury employment and with suitable employment on a reliable and consistent basis, particularly in relation to her work-related injuries related to the spine.”[113]
[113]APCB 184-185.
Associate Professor Bruce Love
112A/P Bruce Love is an orthopaedic surgeon who has seen the plaintiff for medico-legal purposes at the request of her solicitors. His reports also broadly suffer the same problem as Dr McCallum and Dr Mittal, of combining injuries and the course of employment claim with the incident.
113In a report dated 9 March 2021[114] A/P Love obtained a history, conducted an examination, and reviewed radiology. He then answered questions relevantly as follows:
[114]APCB 206.
“1What is the nature and diagnosis of the injuries to our client’s lower back, neck, left shoulder/arm, left leg?

Her diagnosis is best considered that of aggravation of constitutional degenerative change in the lower lumbar spine. The symptoms in the neck can also be considered aggravation of those demonstrated age-related degenerative changes. Restriction of motion in the left shoulder which is more significant than in the right shoulder is best described as rotator cuff tendinosis.
2In your opinion, are our client’s injuries consistent with the stated cause (as outlined in her Affidavit sworn on 18 May 2020)?
Your client’s injuries are consistent with the stated cause (as outlined in her Affidavit sworn on 18 May 2020. [sic]
4In light of the functional limitations that you have identified (if any) would you recommend any permanent work restrictions? If so, what would these restrictions be?
I am doubtful that Ms Borg has the capacity to return to work in the foreseeable future and work restrictions will be permanent.”

114Next, A/P Love provided a further report dated 19 August 2021, after reviewing documentation provided to him for comment.[115] He remained of the opinion that the plaintiff had the aggravation of constitutional degenerative change in the lumbar spine and to a lesser degree in the cervical spine. He said he also believed that she had bilateral rotator cuff tendinosis. He was then asked a question about the heavy and repetitive nature of the plaintiff’s employment (as described in her affidavits) and answered that question as follows:
[115]APCB 211.
“2 Whether the heavy and repetitive nature of our client's employment (as described in her affidavits) has significantly contributed to any and if so which of her medical condition(s) of her?
a)Spine
b)Left hip
c)Bilateral shoulders.

I am of the opinion that the heavy and repetitive nature of your client's employment as described in the affidavits have been a significant contribution to her spinal symptoms including the neck and lower back and to the shoulders. It is doubtful that the nature of employment has contributed to the radiologically abnormalities in either hip.”
115A/P Love was asked a specific question about the incident of 8 March 2017 which he answered as follows:
“3 Whether the incident on 8 March 2017 (as described in the first affidavit at paragraphs 25 to 28) has significantly contributed to any and if so which of our client's present medical condition(s) of her:
a)Spine
b)Left hip
c)Bilateral shoulders

The incident of 8 March 2017 has been a significant contributor to the conditions of the spine and shoulders, but not of the left hip.”[116]
[116] APCB 212.
Glen Dwyer
116Glen Dwyer is an occupational therapist who provided at report at the request of the plaintiff’s solicitors dated 16 April 2021.[117]
[117]APCB 213.
117It is a lengthy document and raises an issue as to whether the opinions expressed within it are within the area of Mr Dwyer’s expertise, particularly to the extent that he has commented upon medical issues. Nevertheless, the thrust of that report is that the plaintiff has no capacity for “suitable employment”.

(ii) The defendant’s medical material
Mr Ronald Haig
118Mr Ronald Haig is an orthopaedic surgeon who examined the plaintiff on 28 April 2017 on behalf of the defendant. Mr Haig then provided a report dated 2 May 2017, which was not relied on by the defendant in this proceeding and was tendered by the plaintiff.[118] Mr Haig said he had “stated my findings, or more correctly the lack of them, on examination” and that “of particular note are the advanced degenerative changes seen in the posterior facet joints at the lowest lower lumbar level”. He noted the plaintiff had a more recent onset of left elbow pain and that the mechanism of injury in the incident would not have caused neck pain. He concluded that the pain emanates from the facet joint degeneration which he believed had been “rendered symptomatic by the incident”. He recommended a continuation of light duties. He also noted the plaintiff had told him that her symptoms were getting worse.
[118]      Exhibit P3.
119Mr Haig then re-examined the plaintiff on 21 May 2018 and provided a report dated 29 May 2018 to the defendant, which was also not relied on by the defendant and tendered by the plaintiff.[119] In that report he set out his updated history and examination findings. He largely repeated his previous diagnosis of “posterior facet joint degeneration of the lumbar spine at the L5/S1 level”. He provided cryptic support for an aggravation of that condition in the incident when he said, “She stated her symptoms have continued”. He noted a need for ongoing conservative treatment, including pain management. He noted non-organic signs. He opined that the plaintiff could return to normal work hours, but not to her pre-injury duties. He said alternate duties should be such that no lifting was required.
[119]      Ibid.
Professor Peter Teddy
120Professor Peter Teddy is another neurosurgeon who the plaintiff was referred to for treatment. He wrote back to Dr McCallum by letter dated 25 July 2017[120] in which he noted complaint of low back, neck and left should pains. His report otherwise does not add much to the discussion.
[120]ADCB 10.
Associate Professor Evan Romas
121I have already mentioned that the plaintiff was seen on three occasions by A/P Evan Romas, consultant rheumatologist. In his first report of 22 October 2018, he obtained a history of the incident. By that time, the plaintiff was complaining of pain in the low back, neck and both shoulders. He recorded her treatment and his examination findings. He said in summary that while he was satisfied the plaintiff had persisting complaints, she had no intrinsic organic medical conditions of the neck, left shoulder or lumbar spine and that numerous radiological investigations had, in effect, only demonstrated age-related degenerative change. He said that having regard to the mechanism of injury it was likely the plaintiff sustained a soft tissue injury of the lumbar spine, but it did not support an injury to the underlying constitutional lumbar spondylosis condition.[121] He went on to say that psychosocial factors are likely to be important, although he did not have an evidentiary basis to conclude the plaintiff was deliberately misrepresenting or falsifying her symptoms. He raised as an issue the possibility of a chronic pain disorder or somatic symptom disorder. He diagnosed that the plaintiff had no intrinsic medical conditions involving her neck, left shoulder or low back. He said it was reasonable to expect that the soft tissue injury of the lower back, which she sustained in the incident, would have resolved quickly and continuing symptoms most likely had a psychological basis.[122]
[121]ADCB 19.
[122]ADCB 20.
122A/P Romas then re‑examined the plaintiff and provided a further report of 28 October 2019.[123] He set out the further history of treatment, symptoms, and his examination findings. He essentially repeated his earlier opinion regarding diagnosis. He said the plaintiff had non-specific back pain and numerous non-organic physical signs and the radiology was not correlated to any objective physical signs of injury. He said that the plaintiff’s clinical presentation was consistent with a non-organic disorder and her low back condition is clinically normal. Interestingly, he noted that the plaintiff’s self-reported disability had deteriorated.[124]
[123]ADCB 25.
[124]ADCB 31.
123A/P Romas then reported for a third and final time on 24 March 2021.[125] Again, he took a history from the plaintiff, some of which I have already set out, as well as conducting an examination. He repeated his opinion that he could not identify any organic injury to the spine, and he said that once again he must conclude that the plaintiff’s clinical presentation carried all of the hallmarks of a non-organic disorder.[126] He then offered opinions regarding work capacity in which he described the incident as minor. He said from a physical standpoint she had no incapacity arising from any claimed physical/spinal injury.[127]
[125]ADCB 37.
[126]ADCB 39.
[127]ADCB 41.
Dr David Barton
124Dr David Barton is a consultant occupational physician who provided a report to the defendant’s solicitors on 3 February 2021.[128] He too obtained a history from the plaintiff and conducted a clinical examination before summarising her situation. Relevantly, in respect to diagnosis, he said as follows:
“The team member’s diagnosis for all injuries.
I would accept that initially there may have been some soft tissue injury in the abdomen and possibly in the lower back area which I believe has physically recovered. The history that she describes of multiple and widespread symptoms since defies any legitimate medical diagnosis. Physically I believe she has recovered from any initial injury.”[129]
[128]ADCB 61.
[129]      ADCB 65.
125Dr Barton then said there was considerable degree of illness behaviour on a conscious level during his examination of the plaintiff. He said from a physical point of view he did not believe there was any evidence of incapacity.
Dr Ashish Jonathan
126Dr Ashish Jonathan is a consultant neurosurgeon who examined the plaintiff and provided a report dated 28 May 2021 to the defendant’s solicitors.[130] Dr Jonathan obtained a history of the mechanism of injury, current symptoms and then conducted a physical examination. Like the other doctors, he reviewed radiology. He was also provided with relevant clinical records for his consideration and clearly took those records into account in his report. In respect to diagnosis, he said:
[130]ADCB 409.
2.The team member’s diagnosis for all injuries.

In my opinion Ms Borg suffers from pre-existing degenerative disease of the cervical and lumbar spine. Ms Borg said prior to the reported injury she was symptomatic for this condition.
She [sic] a sharp pain in her lower back following the reported incident on 8 March 2017. She later in the day experienced a burning sensations in her left elbow and headache.
A few days later she developed pain in her left hip bottom, back of her left leg and heel.

In my opinion the sharp pain that she experienced immediately after the reported incident is causally related to the incident on 3 March 2017 when a box shot out and hit her in the abdomen pushing her onto the pallet.
In my opinion the other symptoms reported are not causally explained by the mechanism of the alleged injury.

In my opinion the alleged injury did not result in a pathological change in the pre-existing degenerative disease of the cervical and lumbar spine. The radiological imaging does not show any evidence of trauma.
Diagnosis: In my opinion Ms Borg suffered an exacerbation of the pre-existing degenerative disease of the cervical and lumbar spine as a result of the alleged injury on 3 March 2017.
The duration of incapacity arising from the exacerbation of the pre-existing degenerative disease of the cervical and lumbar spine, taking into consideration the mechanism of and the absence of radiological evidence of trauma is in my opinion in the order of days to weeks.
In my opinion the ongoing symptomatology that has persisted and progressed since March 2017 to date is not causally related to a box hitting Ms Borg in the abdomen.
In my opinion her current disability is caused by the pre-existing degenerative disease of the cervical and lumbar spine.”[131]
[131] ADCB 417-418.

127Next, in respect to the mechanism of injury and diagnosis, Dr Jonathan said as follows:
“3. Do you consider the mechanism of injury is consistent with the diagnosis? If the initial diagnosis was accurate of a muscular back strain, what would the expected clinical course have been?

In my opinion Ms Borg suffered an exacerbation of the pre-existing degenerative disease of the cervical and lumbar spine as a result of the alleged injury on 3 March 2017.
In the absence of radiological evidence of trauma, it is likely that the exacerbation was due to a muscular and/or ligamentous strain.
The duration of incapacity arising from such an exacerbation of the pre-existing degenerative disease of the cervical and lumbar spine, taking into consideration the mechanism of injury and the absence of radiological evidence of trauma is in my opinion in the order of days to weeks.”[132]
[132] ADCB 418.
128Dr Jonathan also stated that in his opinion the plaintiff had significantly exaggerated the extent of the limitation of cervical mobility, and he noted supine straight leg raising was inconsistent with her sitting straight leg test. He said the plaintiff was not forthright regarding disclosure of pre‑existing neck, back and radicular symptoms and that there were non-organic and non-physical components in his physical assessment.[133] He then went to far as to say the plaintiff could return to her job as a store person but as she suffered from pre‑existing degenerative disease of the spine restrictions and activity modifications were required, which he then set out. Within those restrictions he said the plaintiff could return to work and increase her hours to full time hours over a period of six months.[134]
[133]Ibid.
[134]ADCB 420.

Analysis of the evidence regarding physical injury
129That completes a summary of the relevant evidence from practitioners in respect to any physical injury. It has been necessary to set it out in some detail because of the confused way the plaintiff asked questions of medical practitioners and, in doing so, conflated the course of employment claim with the incident.
130In any event, the net result is that there is support in the evidence for the proposition that the plaintiff aggravated degenerative change in the lumbar spine because of the incident. That needs to be qualified with the reservation that several the defendant’s medico-legal examiners adopt a contrary position, namely that the plaintiff suffered a soft tissue injury which had now resolved and any symptoms were due to the underlying degenerative change and are not related to the incident.
131Obviously, the opinions from A/P Romas, Dr Barton and Dr Jonathan do not assist the plaintiff’s claim. Those opinions support the submission that any physical injury caused by the incident was temporary and not the cause of ongoing complaints or symptoms.
132That brings me back to the medical opinions on which the plaintiff relied and the reports from Mr Haig, Dr Nguyen, Dr McCallum, Mr Awad, A/P Love and Dr Mittal. Those reports are supportive of the proposition advanced by the plaintiff that in the incident she had suffered the aggravation of degenerative change in her lumbar spine.
133For the purposes of a gateway provision, having considered the whole of the evidence and despite the conflict in the evidence, I am prepared accept the submission that the incident caused the plaintiff to suffer a physical injury by way of the aggravation of underlying degenerative disease in the lumber spine. I am less convinced that the plaintiff suffered injury to her neck in the incident (bearing in mind that the spine is the body function relied on) but not much turns on whether she did or did not, as the clear emphasis in her evidence was of impairment due to low back pain.
134But the difficulty then is to identify what impairment and impairment consequences flow from that aggravation injury to the low back/spine, because:
(i)     first, the plaintiff had been symptomatic in her spine from time to time before the incident and the plaintiff’s medical evidence does not directly deal with the extent of any aggravation injury suffered in the incident, in the sense required by Petkovski v Galletti;[135]
(ii)     second, the medical evidence relied on by the plaintiff conflates or combines her overall spinal impairment with the course of employment claim and the incident, in circumstances where it is legally impermissible;
(iii)    third, and related to the second, the medical evidence does not “disentangle” or identify the impairment and impairment consequences solely referable to the incident, as opposed to the course of employment claim, the diagnosed psychological/non-organic response, or indeed injury to other body parts, such as the left shoulder or left hip;
(iv)    fourth, the plaintiff’s evidence of the “seriousness” of the impairment and impairment consequences is unreliable;
(v)     fifth, where the plaintiff bears the evidentiary onus to identify injury, impairment, and impairment consequences, having set out in some detail the medical evidence, in summary, that evidence does not enable that task to be done.
[135][1994] 1 VR 436.
135I accept that she aggravated degenerative change in the spine in the incident. But she has failed to discharge her evidentiary burden to prove what impairment and impairment consequences were caused by the incident, both in respect to pain and suffering and pecuniary loss. The medical evidence she relied on does not enable the ‘disentangling’ to occur, and her own evidence is unreliable.
136Leaving pain and suffering to one side for a moment, the position regarding pecuniary loss is even more complicated because the plaintiff was undertaking a meaningful office job until made redundant. Since then, she has done nothing to look for alternate employment. Questions arise as to whether she has discharged her evidentiary onus to establish that, after rehabilitation or retraining, she in fact has no capacity for suitable employment. In my view, she has not discharged that evidentiary onus, particularly considering the evidence of her ability to travel extensively overseas and engage in intellectual tasks associated with obtaining visas and the like. She is clearly intelligent and has computer skills. If asked to do so, I would conclude that at the very least she has what might be crudely described as a “light work” back. Accordingly, amongst other things, she has failed to reliably demonstrate what is her true level of “after injury” earning capacity.

137In summary, the confused nature of the evidence as to the course of employment claim and the incident, combined with disentangling the psychological response and with her unreliability and exaggeration, means that she has failed to establish that she has a “serious injury” from any claimed injury to the spine arising from the incident.
B. Psychiatric injury
138That leaves the alternate argument that if the plaintiff’s current complaints are not substantially due to an organic injury caused by the incident, then they must be due to a psychiatric condition caused by the incident.
139First, the alternate claim based on psychiatric injury has the same evidentiary problems as the claim based on injury to the spine, that is, the unreliability of the plaintiff’s evidence.
140Second, a consideration of the evidence in the tendered psychiatric opinions – which I shall set out in due course - does not support a conclusion that the plaintiff has a “severe” psychiatric condition.
141Third, the psychiatric opinions in the broad relate to the nature of the plaintiff’s employment and fail to isolate any discrete psychological condition caused by the incident, as opposed to the general nature of the plaintiff’s employment or other unrelated stressful events in her life.
142Having set out that summary, I shall now deal with the evidence relevant to the claim based on psychiatric injury.

(i) The treating material
143I have already discussed the opinion from Dr Nguyen and simply repeat the point that he diagnosed the plaintiff as having symptoms of anxiety and depression.[136] But beyond that his reports do not assist in the task of identification of compensable injury referable to the incident, or impairment and consequences.
[136]APCB 68.
Chris Carter
144Turning then to the treating material not yet discussed, Mr Chris Carter is a consultant psychologist who has treated the plaintiff. He wrote to Dr Nguyen on 20 January 2019[137] noting that he had seen her for six sessions and treatment had involved psychoeducation relating to low mood and anxiety, negative thinking, and the like. He reported again to Dr Nguyen by letters dated 6 February 2019,[138] 30 May 2019[139] and 21 April 2020[140] describing his ongoing treatment broadly as managing the plaintiff’s work injury and work-related anxiety. He wrote to Dr Nguyen again on 20 March 2021[141] noting that treatment had not been completed but the goals were to stabilise her anxiety levels.
[137]APCB 116.
[138]APCB 117.
[139]APCB 118.
[140]APCB 119.
[141]APCB 120.
145Mr Carter’s letters confirm treatment for a work-related psychological condition but are otherwise of little use in an assessment as to whether the plaintiff has a “severe” psychiatric illness referable to the incident.
Dr Raid Al Humrany
146Dr Raid Al Humrany is a consultant psychiatrist to whom the plaintiff was referred for treatment. He to Dr Nguyen by letter dated 12 March 2019.[142] He set out a history of a range of unrelated psychological stressors, as well as the plaintiff’s claimed work injury. His report is of otherwise limited assistance. He stated that his clinic did not deal with WorkCover cases.
[142]APCB 121.
Dr Shubhash Das
147Dr Shubhash Das is another consultant psychiatrist to whom the plaintiff has been referred. He wrote to Dr Nguyen by letter dated 8 February 2022.[143] He recorded that his report was not a medico-legal report because he also did not deal with WorkCover matters. He obtained a family and childhood history as well as a history of the work injury. He diagnosed chronic pain with low mood. He said he had a long discussion with the plaintiff about biological, psychological, and social treatment. His report is also of limited assistance.
[143]APCB 146.
Dr Leon Turnbull
148Dr Leon Turnbull is a consultant psychiatrist who examined the plaintiff for medico-legal purposes at the request of her solicitors. He reported for the first time on 2 July 2019.[144] He obtained a history of the plaintiff’s work duties at the defendant’s warehouse and of the specific incident. He said the plaintiff had developed straightforward psychological symptoms in response to her back condition, secondary to her ongoing experience of pain. He said her ongoing psychological symptoms amounted to a mild adjustment disorder with depressed mood. His impression was that the main incapacity for work was pain-related but, psychologically, fatigability and a lack of motivation robbed her of some capacity for work. He thought she was psychiatrically fit for alternate duties although fatigability and tearfulness and low mood and a lack of motivation might make finding suitable employment difficult.[145]
[144]APCB 187.
[145]APCB 193.
149Dr Turnbull then provided a further report dated 15 April 2021.[146] He again took a history from the plaintiff, reviewed documentation and conducted a mental state examination. He said his opinion largely depended on the conclusion in respect to her physical state. If she has an ongoing physical condition then he would say she had a mild adjustment disorder in the form of a depressed mood that is largely secondary to her physical experience.[147] He said if her physical condition was not established, then the two main alternates were some form of feigning or some sort of psychological reaction that has seen her experience pain in quite an intense way.
[146]APCB 195.
[147]APBC 197.
150Pausing, as I have already concluded, on balance the plaintiff has established that her condition has a physical basis, namely the aggravation of degenerative change in the spine. Leaving to one side the extent that the injury to the spine was caused by the incident, I therefore accept Dr Turnbull’s opinion that the plaintiff’s psychiatric state is almost, if not wholly, a secondary consequence of her physical condition.[148]
[148]Ibid.
151Dr Turnbull went on to say that it was difficult to see how the plaintiff could be in any workplace given her mental focus on her physical condition. He said he was not sure that she had the capacity to extract herself from that and perform tasks in a reliable and safe way. He said that unless things physically improved, he did not think she was employable even on a part-time basis. He thought that treatment could be rationalised, and the plaintiff could just see a psychologist and he noted she had then gone off psychotropics.
152Dr Turnbull then provided a further short report dated 3 May 2021[149] but it does not add much to the current discussion.
[149]APCB 199.
153Dr Turnbull then reassessed the plaintiff and provided his final report dated 16 May 2022.[150] He largely repeated his earlier opinions, particularly his previously expressed view that ultimately her psychiatric diagnosis depended on what was concluded about her physical state.[151] He said he remained comfortable with the diagnosis of an adjustment disorder, which is characterised by some anxious and depressed mood state and is driven by a physical condition.[152]
[150]APCB 201.
[151]APCB 203.
[152]APCB 204.
154Dr Turnbull opined that the plaintiff being depressed and anxious, lacking in energy and motivation, and being distracted by her physical condition, at least partially undermined her ability to be employed. He said that psychiatrically he struggled to see the plaintiff working more than say 10 to 15 hours a week, due to a combination of lack of motivation, difficulty with her level of mental energy, distraction because of her aches and pains, and her tearful and anxious and depressed mood states.[153]
[153]APCB 205.
155I have some difficulty understanding exactly what it is that Dr Turnbull is saying in his most recent report. His opinion about work capacity seems in part to be expressed by a consideration of her physical aches and pains, which is obviously outside his area of expertise. I am also not sure what he means by lack of motivation and whether that is a psychiatrically diagnosed condition, or simply a statement of fact.
156Further, even though Dr Turnbull was provided with several relevant medical reports, he glosses over the relevant information in those reports, such as the plaintiff’s ability to form a romantic relationship, to travel overseas to further that relationship and then marry. It is hard to understand how that could not be relevant to his opinions in respect to a psychiatric diagnosis, particularly when it comes to issues to do with motivation and the like. In his final report he simply noted that the plaintiff’s “husband has come home from Africa, and he applies hot water with a sponge over her back, and pleasingly, ‘that gives me a bit of relief’”.[154] That might be accurate, but it is incomplete.
[154]APCB 202.
157In consideration of the limited evidence from treating practitioners, I accept Dr Turnbull’s diagnosis of a psychiatric condition secondary to the physical injury suffered to the spine. But, his opinions do not support a finding of a “severe” psychiatric condition, either in respect to pain and suffering, or in respect to economic loss. The incomplete history and the evidence means I do not accept his opinion that the plaintiff is only fit for part-time work by reference to any psychiatric condition.
158As already noted, in claims based on psychiatric injury, the opinions from medical practitioners are often only as good as the history obtained and Dr Turnbull has not obtained a very good history, even if he had documents available that should have enabled him to do so.

(ii) The defendant’s material
Dr Natalie Krapivensky
159Dr Natalie Krapivensky is a consultant psychiatrist who examined the plaintiff at the request of the defendant’s solicitors. She reported for the first time on 14 October 2019.[155] She obtained a background history from the plaintiff and obtained a history of current psychiatric symptoms and treatment. She conducted a mental state examination and reviewed available documentation. She then said in summary and noting the plaintiff had been able to travel to Nigeria, that the plaintiff had no current psychiatric diagnosis.
[155]ADCB 42.
160Dr Krapivensky re-examined the plaintiff and provided a further report dated 6 March 2021.[156] That report similarly records a background history, record of symptoms, mental state examination and review of documentation. Dr Krapivensky noted relevant matters to the plaintiff’s history and concerns about surveillance. She said that it was “really difficult to make a psychiatric diagnosis in this woman” and that she had “considered the diagnosis of somatic symptom disorder with predominant pain and a possible diagnosis of adjustment disorder” but that “I am unable to conclude that Ms Borg has any psychiatric condition at this time.”[157]
[156]ADCB 52.
[157]ADCB 58.
161Obviously Dr Krapivensky has a different diagnosis and conclusion to Dr Turnbull. I do not accept her opinion that the plaintiff had no psychiatric condition, but that does not mean that I must reject all her opinions. In several aspects she had a better history than Dr Turnbull. A consideration of the balance of her reports supports a conclusion that regardless of the diagnosis the plaintiff does not have a “severe” psychiatric disorder
Dr Nitin Dharwadkar
162Dr Nitin Dharwadkar is a consultant psychiatrist who examined the plaintiff at the request of the defendant’s solicitors and provided a report dated 28 January 2022.[158] He also recorded a history of the onset of the plaintiff’s back pain, her symptoms, current treatment, and other relevant matters, before conducting a mental state examination. He said that based on the history and records made available to him and the objective findings on mental state examination, that it was reasonable to make a diagnosis of “Persistent Somatic Symptom Disorder, with predominant pain.”[159] He said he had considered the differential diagnosis of adjustment disorder with mixed anxiety and depressed mood but at that point thought that several criteria for that diagnosis were not fulfilled.[160]
[158]ADCB 369.
[159]ADCB 388.
[160]ADCB 389.
163In what is a lengthy report, Dr Dharwadkar went on to opine the plaintiff had a current work capacity (for a graduated return to work) from a psychiatric perspective. He was asked to comment upon vocational material from IPAR and opined the plaintiff had a capacity for a graduated return to work from a psychiatric perspective for jobs identified as “suitable” by IPAR.[161] He stated that the prognosis could be favourable, particularly if the plaintiff was to return to any suitable work as soon as possible.
[161]ADCB 403.
164Dr Dharwadkar’s report is comprehensive but less straightforward than the psychiatric opinions from Dr Turnbull and Dr Krapivensky. His diagnosis of a somatic symptom disorder is against the weight of the relevant medical evidence. Nevertheless, to the extent that I understand his opinion, again regardless of diagnosis, it does not support a conclusion that the plaintiff has a “severe” psychiatric condition.

Analysis of the evidence of psychiatric injury
165Having set out the relevant evidence regarding the plaintiff’s psychological condition, it is perhaps unnecessary to say much more.
166But, for completeness, I note that the plaintiff’s ongoing psychological treatment is limited. It is unclear but there appears to be some occasional ongoing attendance with Mr Carter, although there may have been some interruption or overlap with that whilst she was undergoing a pain management program earlier this year. She has now ceased all psychiatric medication. She is able to socialise and has been able to form a romantic partnership and marry. She has travelled extensively overseas, including to Africa, which might not be considered the easiest tourist destination. The evidence discloses that she has provided support to her parents and her own children. She can engage in a range of day-to-day activity. There was no emphasis in her oral evidence of a psychiatric disorder.
167Whilst the plaintiff may have a diagnosed psychiatric disorder by way of an adjustment disorder with depressed mood, I conclude it is at best a mild condition, consistent with Dr Turnbull’s opinion, even though he expressed that without the full picture of the plaintiff’s level of day-to-day activity. Regardless, after a consideration of the whole of the evidence, my assessment is that it is only mild and is certainly something less than “severe”. I conclude that any psychiatric injury related to the incident does not meet the “very considerable” test either in respect to pain and suffering or pecuniary loss.

Conclusion
168Accordingly, for the reasons as expressed, the plaintiff has failed to establish that she has suffered either a serious physical or psychiatric injury referable to the incident.
169Accordingly, the proceeding is dismissed.
170I shall hear from the parties as to consequential orders.

[2022] VCC 1792

26 October 2022