Fernando v VWA

[2024] VCC 157

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-03153

THANUDA FERNANDO	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2024
DATE OF JUDGMENT:	29 February 2024
CASE MAY BE CITED AS:	Fernando v VWA
MEDIUM NEUTRAL CITATION:	[2024] VCC 157

REASONS FOR JUDGMENT
---

Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – paragraph (a) of the definition of ‘serious injury’ – whether injury suffered arising out of or in the course of employment – whether consequences of pain and suffering are significant or considerable.

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013.

Cases Cited:Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1.

Judgment:                  Leave granted.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N. Horner	Zaparas Law Pty Ltd
For the Defendant	Mr S. Martin	Lander & Rogers

HIS HONOUR:

Introduction

1Thanuda Fernando seeks leave to commence a proceeding to recover damages for her pain and suffering relating to physical injuries she suffered arising out of or in the course of her employment with Monash Health and, specifically, on 1 February 2019. She relies on paragraph (a) of the definition of “serious injury” in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). The injuries are confined to the spine and left leg. The only issue between the parties is whether Ms Fernando has suffered a “serious injury”.

Circumstances

2Ms Fernando is now 51. She was born in Sri Lanka and came to this country in 2013 with her husband and two children. In June 2014, she started working for Monash Health as an administrative officer.

3The circumstances giving rise to her injuries are not disputed. She describes them simply:[1]

“While talking to a colleague at work on 1 February 2019, I was leaning on a partition in the office when it gave way and I fell to the floor.

I was able to stand up and remain at work. Back and leg pain developed and shortly after lunch I told my manager that I needed to see a doctor about my injuries.”

[1]Affidavit sworn on 24 January 2023 at [12] and [13].

4She saw a general practitioner that day. Between February 2019 and February 2021, Ms Fernando has been treated by a variety of medical and other practitioners. She has undergone scans.

5She returned to her full-time duties in September 2019 after a gradual return to work. In 2023, she transferred to another area within Monash Health, performing the same duties. 

Consequences

Pain

6Since the accident, Ms Fernando has suffered pain in her lower back, mainly on the left side. Understandably, her estimate of the level of pain varies when using a scale. It is between 3 and 5 on ‘good’ days and up to 9 on ‘bad’ days. Her pain is most often, but not always, present. On 27 November 2023, she described the level of her pain to Dr Menz in terms of good and bad days. The bad days predominated, being about 10 days out of 14. However, the pain does not prevent her from going to sleep or remaining asleep.

Treatment

7Ms Fernando sees her general practitioner. Since August 2023, she attends a physiotherapist weekly. She uses non-prescribed pain-relieving medicines, usually Nurofen. She takes this medicine only three to four times a week because someone told her it could cause stomach problems.

Daily activities

8Ms Fernando lives alone now. Her children live elsewhere. She is helped by them with the shopping and cleaning of the house. These duties are difficult for her to perform otherwise. In her first affidavit[2], she could not push a shopping trolley for the pain it caused to her back. Despite this inability, she still does her own shopping.

[2]Paragraph 48.

9With her housekeeping, she found it difficult to bend or kneel. Since so many household activities involve bending or kneeling, this is a significant restriction.

10Before the accident, she cooked elaborate meals. Doing so was a “big part” of Sri Lankan culture. Now she is reduced to cooking for herself once or twice a week and relying on her children to provide her other meals.     

Walking

11Before the accident, Ms Fernando walked three to four times a week. The walks took 30 to 45 minutes. She walked for fitness. If now she walks for more than 10 minutes, she experiences pain in her left heel. Occasionally, this pain extends from the heel to the knee. Owing to walking less, her weight increased by 6 kilograms and she feels unfit. 

Travel

12Twice during 2023, Ms Fernando travelled to Sri Lanka: in August, to attend the funeral of a close family friend; and, in December, because her daughter was involved in an accident.

Divorce 

13When she arrived in Australia, Ms Fernando was married. She and her husband separated in late 2019 and divorced in December 2021. She lives alone. She attributes the breakdown of her marriage to her back injury:[3]

“I still blame my back injury for my divorce. Because of my back injury I was not able to do all the cooking that women in the Sri Lankan culture are expected to do in the home. I also had difficulty with my back in terms of the physical relationship with my husband because sex was painful and therefore not enjoyable for me. My husband was not very understanding about the problems caused by my back injury, and I am sure this led to our divorce.”

[3]Affidavit sworn 5 February 2024 at [17].

14Ms Fernando says her mortgage increased significantly following her divorce. I assume she means the repayments as well as the principal. She would like to obtain a better paying job than the one she has. She looked at the work of a disability support worker, which pays better. However, she believes she could not cope with the physical demands of that job.  

Social activities

15By the end of her working week, Ms Fernando feels very tired and in pain. She stays at home and rests on the weekend to prepare herself for the next week at work. Before the accident, weekends included social activities such as attending musical shows and dancing with friends. She is lonely. However, each Sunday she attends a Pentecostal Church with her children. To an extent, this is a social outing.

Employment

16Following the accident, from 6 February 2019, Ms Fernando returned to work on restricted duties. Initially, it was three days a week, four hours a day. From 30  September 2019, she  returned to full-time work. She has continued in this position. Presently, she works between 11.00am and 7.30pm, five days a week.

Medical and other treatment

Gunaratne

17Abey Gunaratne is a general practitioner. Ms Fernando has been a patient of Dr Gunaratne’s clinic since 27 March 2014.[4]

[4]Reports dated 15 February 2019, 10 June 2019, 2 February 2020, 6 January 2021 and 30 January 2024.

18Dr Gunaratne diagnosed Ms Fernando as incurring a soft tissue injury to her lower back. She also suffers ongoing left sided pain consistent with facet joint arthritis at the lumbosacral levels. 

19Dr Gunaratne considered Ms Fernando was restricted by her injuries: lifting up to 10 kilograms; limited as to pushing, pulling, twisting and bending; prolonged sitting and driving. These restrictions are permanent because of the chronic nature of her back complaints. 

20There is a continued need for physiotherapy and anti-inflammatory medicines for pain relief and to reduce inflammation.

Gianelli

21Emma Gianelli is a musculoskeletal physiotherapist.[5] From 4 April 2019 until, at least, 13 February 2020, she attended Ms Gianelli’s practice for treatment. Despite normal lumbar movements on 26 November 2019, using specialised equipment on 28 January 2020, there were reductions in movements in flexion, extension and lateral side flexion.

[5]Report dated 13 February 2020.

22Relevantly, Ms Gianelli diagnosed left and right L5-S1 facet arthropathy; disc desiccation at L2-4 and discogenic pain at L4-5 and L5-S1; and mild L5/S1 radiculopathy.

23Ms Gianelli noted Ms Fernando’s progress and recommended further supervised therapeutic exercise and a gym programme.

Dias

24Shawn Dias is an exercise physiologist. He examined Ms Fernando on or about 3 March 2015.[6] Among other things, she told him that she suffered lower back pain from moderate physical activity. He instructed her about core strengthening exercises and stretches to assist with her back pain. 

[6]Report dated 3 March 2015.

Gonzalvo

25Gus Gonzalvo is a neurosurgeon. He examined Ms Fernando on 13 August 2019 on referral from her general practitioner.[7]  He considered she suffered from facet joint arthropathy while the MRI scan was unremarkable and exhibited the usual wear and tear for her age.

[7]Report dated 13 August 2019.

Mahanama

26Gaya Mahanama is a physiotherapist. She has treated Ms Fernando since 4 April 2019.[8]

[8]Reports dated 26 April 2019, 3 June 2019, 9 April 2021 and 24-31 January 2024. There is an undated report to Dr Buchanan. 

27Related to the accident, Ms Mahanama diagnosed a lower back injury with L5-S1 irritation and S1 neuropathy.

28Ms Mahanama recommended these restrictions for work: sitting up to 30 minutes before postural change; standing or walking 15 minutes before postural change; driving up to 30 minutes in one session and no more than 120 minutes per day in total; avoid lifting below knee height and no more than 5 kilograms between knee and waist height; avoid reaching above head height and twisting through the trunk; avoid carrying more than 5 kilograms while standing or walking; avoid pushing or pulling with a force greater than 5 kilograms. She recommended an ergonomic chair, a sit-stand desk, cushioned floor or cushioned shoes.

29For physiotherapy treatment, she recommended weekly supervised strengthening classes, fortnightly consultations and a gym-swim membership at a local facility.   

Buchanan

30Guy Buchanan is a pain specialist. He first saw Ms Fernando in January 2021 upon referral from Dr Gunaratne. He spoke to her on the phone in February 2021. By then, he had the results of recent imaging. He considered the cause of her low back pain was mechanical. The source of her pain may be a disc or discs or facet joints. He thought a vertebral source was less likely. He recommended facet joint injections to discover whether those joints were responsible. Apparently, these did not happen. He also recommended a resumption of physiotherapy.  

Seneviratne

31Janaka Seneviratne is a neurologist. He examined Ms Fernando on 12 February 2021 at the request of her general practitioner.[9]  This was the only time he saw her.

[9]Reports dated 12 February 2021 and 16 April 2021.

32He diagnosed her as suffering from musculoskeletal soft tissue injuries to her lumbar spine which have developed into a chronic pain condition. There was the possibility of L5-S1 nerve root irritation but without evidence of active radiculopathy.

Medico-legal

Reid  

33Barclay Reid is a general surgeon. On 2 November 2020, he examined Ms Fernando at the request of an authorised agent.[10]  He was asked to conduct an impairment assessment.

[10]Report dated 13 November 2020.

34Dr Reid diagnosed a musculoligamentous injury of the lower back. Although there was no radiculopathy, he noted the presence of occasional radicular symptoms which occur when Ms Fernando walked. He explained those symptoms:[11]

“It is likely that with her body form with her height being only 151 cm but with a weight of 76 kg and BMI of 33.33, that on walking the mild swelling that occurs in the back muscles is enough to increase the compromise of the L5/S1 nerve root on the left side which was seen in the MRI”. 

[11]At [4.1].

35In November 2020, Dr Reid thought it was likely Ms Fernando would recover in another 6 to 12 months. He thought she should resume swimming once the COVID-19 restrictions were lifted.

Doig

36Graeme Doig is an orthopaedic surgeon. At the request of her solicitors, he examined Ms Fernando on 11 October 2023.[12]

[12]Report dated 19 October 2023.

37He found she was tender to palpation at the left lumbo-sacral/sacro-illiac joint region. There was no spinal deformity. She could forward flex to her lower shins with evidence of dysmetria. There was reduced right lateral flexion and only ten degrees of extension.

38Dr Doig diagnosed a soft tissue injury to Ms Fernando’s lower back. There was left-sided pain which was consistent facet joint arthritis at the L5-S1 level on the left. The arthritis was identified in the 2019 MRI scans. Absent contrary evidence, he attributed her symptoms to the accident. He did not find any non-organic factors at play.

39These injuries required restrictions on her activities. She should not lift more than 10 kilograms. She is limited in her ability to push, pull, bend and twist. She needed breaks if engaging in prolonged sitting and driving. He considered these restrictions permanent given the chronic nature of the condition of her back.

40He recommended physiotherapy whenever her condition flares up. He did not recommend surgery. He considered a referral to a pain specialist would benefit her with the treatments they might bring to bear.

Turnbull 

41Despite the abandonment of a claim under paragraph (c) of the definition of “serious injury”, the report of the psychiatrist, Leon Turnbull, was tendered. On 28 November 2023, he interviewed Ms Fernando at the request of her solicitors.[13]

[13]Report dated 1 December 2023.

42Dr Turnbull did not diagnose any psychological condition although he considered Ms Fernando suffered from a temporary adjustment disorder of moderate severity. He disagreed with the diagnoses of her treating psychologist of a major depressive disorder and a generalised anxiety disorder, saying the parallel diagnoses were excessive.

43He linked her anxiety and worry as a consequence of her physical condition. He did not recommend any psychological treatment unless it was part of a pain management programme.

Weerman

Ajith Weerman is a consultant psychiatrist. He saw Ms Fernando on or about 16 July 2019 at the referral of her general practitioner. His report was tendered by the defendant for the paragraph under the heading “Personal History”, which reads:[14]

“Thanuda was born and grew up in Sri Lanka. She was preoccupied with the relationship difficulties with her husband. She has been together with her husband for 23 years. She has a 20-year old daughter and 17 year-old son. She said that they had long term poor relationship. She has gone to the police as he assaulted her many times. She believes that he is unfaithful to her especially when he is working in Vietnam. Currently, she is having very poor relationship with her husband and she said repeatedly that the relationship is over.”

[14]Report dated 16 July 2019 at p 2.

44Apart from that, Dr Weerman diagnosed her as suffering from an adjustment disorder with anxiety symptoms. He recommended psychological counselling and physiotherapy.   

Kostos   

45Tony Kostos is a rheumatologist. At the request of an authorised agent, he examined her on 14 February 2021 and 26 October 2023.[15]

[15]Reports dated 14 April 2021 and 31 October 2023.

46Dr Kostos examined Ms Fernando twice in 2023 with just over 6 months separating them. On the first occasion, he found a good range of movement in the thoracolumbar spine with pain only in the left latera; flexion and right rotation. On the second occasion, those movements remained good except in extension.

47Apart from saying her pain came from the lower lumbar region, Dr Kostos could not say more about its origin. He returned to this point in his second report:[16]

“In my previous report explained the dilemmas in trying to diagnose most of the causes of low back pain because this cannot be done on the basis of the history, examination or investigation results”.

[16]At p 3.

48In his first report, he summarised the findings of an x-ray, MRI scans and bone scans between 2019 and 2021. At his second examination, there was no new imaging results available to him.  

49Although noting some possible inconsistencies, and accepting Ms Fernando’s assertion of continuous lower back pain since the accident, Dr Kostos recommended a concerted exercise program and the loss of weight. He considered physiotherapy should cease as it provided only temporary relief.   

Menz

50Anthony Menz is an orthopaedic surgeon. At the request of the defendant’s solicitors, he examined Ms Fernando on 27 November 2023[17].

[17]Report dated 7 December 2023.

51Dr Menz was provided with a large array of medical and other material including reports from practitioners which were not tendered into evidence. The description of the accident differs from Ms Fernando’s evidence but I doubt the departure is of any significance. He measured the range of movement of her lumbosacral spine. They were limited, especially extension where there was no movement. He read the reports of the 2019 MRI scan and bone scan, and the 2021 MRI scan. Ms Fernando spoke of the intensity of her back pain with 3 to 4 out of 10 on a good day and 9 out of 10 on a bad day with there being about 10 bad days a fortnight. She told him she cooked but did not clean or wash her clothes. She drove her car but did not garden or walk.    

52Dr Menz found marked restrictions of the movements of her lumbosacral spine, particularly with extension.

53As he put it, “at worst”, Dr Menz considered the accident caused a minor soft tissue injury and this type of injury should have resolved within three or four months. The continuing symptoms “are solely of a functional nature and possibly associated with the minor pathology within her lumbar spine which is not traumatic”.[18]

[18]At p 8.

Legal considerations

54Turning to paragraph (a) of the definition of “serious injury”, the word “serious” is explained in two further paragraphs of s325(2). First, relevantly, it is satisfied by reference to the consequences to Ms Fernando of any impairment or loss of a body function with respect to pain and suffering when judged by comparison with other cases in the range of possible impairment or loss of body function. Second, an impairment or loss of a body function is not serious unless the pain and suffering consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function fairly described as being more than significant or marked and being at least very considerable.

55The adverb “very” qualifies the noun “considerable”. The following passage from the joint judgment in Sabo v George Weston Foods[19] is important: 

“In considering whether Mr Sabo’s impairment is ‘at least very considerable’ weight must be given to the adverb ‘very’. As Callaway JA said in TAC v Dennis:

‘Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable’.”

[19][2009] VSCA 242 at [73].

56An earlier paragraph in the joint judgment dealt with Mr Sabo’s return to work:[20]

“The fact that Mr Sabo is able to return to work full-time driving a forklift, does not preclude him from showing that the pain and suffering consequences of his impairment are serious. Such an approach would be a disincentive to workers attempting to return to work on lighter duties and would be inconsistent with s 3(b) of the Act, which provides that one of the Act’s objects is to provide ‘for the effective occupational rehabilitation of injured workers and their early return to work’ …” 

[20]At [71].

57Under the heading of “The disabling effect of pain”, Maxwell P summarised the authorities on this point in Haden Engineering Pty Ltd v McKinnon:[21]

“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her].”

[21](2010) 31 VR 1 at [15].

Discussion  

Injury

58Ms Fernando’s injury is variously described. The general practitioner, Dr Gunaratne, considered she suffered a soft tissue injury to her lower back. He considered her ongoing left sided pain as being consistent with facet joint arthritis at the lumbosacral levels. I do not know whether he considered her arthritic state had any connection with the accident.

59The pain specialist, Dr Buchanan, considered the cause of her low back pain was mechanical but was uncertain whether the source was a disc or discs or a facet joint or joints. He seemed to eliminate the vertebrae as a source. He wanted an injection to determine whether the facet joints were responsible but Ms Fernando was not in favour.

60The neurologist, Dr Seneviratne, diagnosed musculoskeletal soft tissue injuries to her lumbar spine which developed into a chronic pain condition.

61Dr Doig, a general surgeon, diagnosed a soft tissue injury. He attributed the left-sided pain to facet joint arthritis at the L5-S1 level on the left.

62Dr Gonzalvo diagnosed facet joint arthropathy. This is the same diagnosis made by Dr Doig, although he did not identify a particular facet joint. 

63Dr Reid diagnosed a musculoligamentous injury. He explained the occasional radicular symptoms as due to her weight.

64Dr Kostos did not identify the source of her pain except to say it came from the lower lumbar region.

65At best, from Ms Fernando’s perspective, Dr Menz diagnosed a minor soft tissue injury, which should have resolved within three or four months.

66If Dr Menz is correct and Ms Fernando’s symptoms after three to four months are due to a significant functional component, then one would expect some support from the psychiatrists. However, there is none. Dr Weerman interviewed her in July 2019 and diagnosed an adjustment disorder with anxiety symptoms. Admittedly, Dr Weerman saw her within months of the fall and one would not expect him to find evidence of non-organic causes. However, four years later, Dr Turnbull did not diagnose any psychological condition although he considered Ms Fernando had suffered from a temporary adjustment disorder of moderate severity. In not finding any psychological disorder, generally it is the nature of adjustment disorders to resolve over time. Any psychological treatment should be part of a pain management programme. In my experience, such programmes have a psychological component.

67Mr Horner, the plaintiff’s counsel, drew my attention to the report of the MRI scan taken on 2 February 2021. The report speaks of the compression of the descending left S1 nerve root. As a layperson, I could not find this compression causes the occasional left leg symptoms Ms Fernando experiences.

68Mr Reid explains the ”occasional radicular” symptoms in terms of weight, the swelling of the back muscles and their effect of increasing the compromise of the nerve root. 

69I would adopt the position of Dr Kostos and find Ms Fernando suffered an injury to her lumbar spine in the 2019 accident. It has left her with a chronic pain condition that is not a psychological pain disorder. It has an organic basis due to the accident.

Consequences 

Pain

70I have already discussed Mr Fernando’s experience of pain. It adversely affects the range of her lumbosacral movements. Looking at the results of recent examinations, there are differing results. The most precise are those obtained by Dr Menz. The precision of his findings suggest he used an instrument to measure her ranges of movement. There are marked losses in extension, left and right lateral flexion and left and right rotation.  

71Ms Fernando is a truthful witness. I accept her estimates of her levels of pain even though they have not led her to seek a referral to a neurosurgeon or pursue other treatments. I would not describe her pain as mild. It is more significant than that.   

72By the end of her working week, Ms Fernando feels very tired and in pain. She stays at home and rests on the weekend to prepare herself for the forthcoming week at work. This contrasts with her life before the accident where on weekends her social activities including attending musical shows and dancing with friends. For much of the time she is lonely but she has returned to attending a Pentecostal Church on Sundays with her children. Although a religious observance, and I suspect she is very religious, to an extent, it is a social outing and, at times, she has coffee with other parishioners. She does see her friends but not as often as before the accident.  

Treatment

73Presently, Ms Fernando’s treatment consists of regular visits to her general practitioner and, since August 2023, weekly physiotherapy. She uses non-prescribed pain-relieving medicines, usually Nurofen. She takes this medicine three to four times a week, and no more, as someone told her it could cause stomach problems.

74No one suggests surgery is required but given the nature of her injury one would not suppose it would be.

75Ms Fernando lives alone now. Her children live elsewhere. She is helped by them with the shopping and cleaning of the house. Cleaning is difficult for her to perform. Although she can shop, pushing a shopping trolley is painful.

76With her housekeeping, she found it difficult to bend or kneel. Since so many household activities involve bending or kneeling, this is a significant restriction. Before the accident, she cooked elaborate meals. Doing so was a “big part” of Sri Lankan culture. Now she is reduced to cooking for herself once or twice a week and relying on her children to provide her other evening meals.     

Divorce 

77When she arrived in Australia, Ms Fernando was married. She and her husband separated in late 2019 and divorced in December 2021. I have already quoted the passage from her second affidavit where she attributes the breakdown of her marriage to her back injury.

78I have already quoted the passage from Dr Weerman’s report. Her marriage was poor before the accident. She suspected her husband of infidelity. He had assaulted her, causing her to seek police assistance. Whether the relationship was over before the accident, it appears they were living under the same roof. After the accident that changed. According to Ms Fernando, the triggering events were her inability to cook in the traditional Sri Lankan style and an inability to be physically intimate. She paints a dreadful picture of her former husband. I have no reason not to accept those effects and the accuracy of her belief that they led ultimately to her divorce.     

79Ms Fernando has gone from the financial position of a shared household to one where she is responsible for a increased mortgage. By “mortgage”, I assume she means the amount of her indebtedness and repayments. At present, she earns $30 an hour. She would like to earn more. The job of a disability support worker pays $40 an hour. She looked at its requirements and believes she could not cope with its physical demands. She has applied for other jobs which pay more. She has been unsuccessful. She believes she could do those jobs from a physical perspective.   

80Financial arrangements after a marriage breakdown very frequently leave each party in a reduced financial state. Ms Fernando has assumed a greater financial responsibility while being confined to a lower paying job because of her injuries. For a person of 53, this is a sad state of affairs due, in part, to the effect of her injuries.

Walking

81Before the accident, Ms Fernando walked three to four times a week for 30 to 45 minutes. She walked for fitness. Now she walks for 5 to 10 minutes. This is the length she will walk her friend’s dog when they are on holiday. Owing to walking less, her weight increased by 6 kilograms and she feels unfit.

82Her inability to walk much has another consequence. Ms Fernando cannot exercise sufficiently to lose weight. Her weight causes the occasional radicular symptoms when walking and described by Mr Reid in terms of weight, swelling of the back muscles and their combined effect of increasing the compromise of the nerve root. There is no radiculopathy but the occasional symptoms.  Ms Fernando is in a difficult position. If she tries to walk to reduce her weight through exercise, she quickly experiences leg pain, which prevents her walking. 

83I was shown surveillance film of Ms Fernando taken on 6 August 2023. It shows her walking from a vehicle and then returning to the vehicle. The total length of the film is 2 minutes 28 seconds. Not all of it shows her walking. At the start, she was standing still and largely obscured by a pole. She was wearing what I would call a heeled boot. They are commonly worn these days. Ms Fernando agreed they were “heels” even though lower than the heels she wore before the accident. She is dressed for a formal occasion. Initially, she thought it was her daughter’s graduation but retreated when she considered the date. Owing to its brevity, the film is of little value.

Sleep   

84On the positive side, sleep is not an issue for Ms Fernando. Her pain does not prevent her going to sleep nor does it wake her once asleep.

Travel

85Ms Fernando is capable of flying to and from Sri Lanka. She did so twice in 2023: to attend the funeral of a close family friend; and, because her daughter was involved in an accident. I do not know the flying time to Sri Lanka and whether there are any stops along the way. However, I daresay the overall time exceeds five hours.

Employment

86The accident did not prevent Ms Fernando’s quick return to work, admittedly gradually but, by 30 September 2019, on a full-time basis. She has continued in this position. Presently, she works between 11.00am and 7.30pm, five days a week. What it has done is restrict her ability to obtain better paid work. Like many, she needs a better paid job to meet her financial commitments.

Conclusion

87I am satisfied Ms Fernando suffered an organic injury arising out of or in the course of her employment with Monash Health. Whether the injury was a ‘serious injury’ was the issue. Although there are areas where she has recovered capacity, there are many other areas where the consequences are significant. In combination, I am satisfied those consequences amount to at least very considerable. Accordingly, I will grant her leave to bring a claim for damages for pain and suffering.

88I will hear the parties on the form of my orders and the question of costs.