Karimiyan v TAC
[2025] VCC 206
•31 October 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-02797
| MAHFAM KARIMIYAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 11 & 12 February 2025 | |
DATE OF JUDGMENT: | 31 October 2025 | |
CASE MAY BE CITED AS: | KARIMIYAN v TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 206 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the cervical spine – credibility
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited: Mobilio v Balliotis [1983] 3 VR 833; Humphries & Anor v Poljak [1992] 2 VR 129; Briginshaw v Briginshaw (1938) 60 CLR 336; Richards v Wylie [2000] VSCAR 50; Demmler v Transport Accident Commission [2018] VSCA 284; Sharon McLarty v Healthscope Operations Pty Ltd & Anor [2017] VCC 501; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Dordev v Cowan and Ors [2006] VSCA 254; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Popal v Transport Accident Commission [2023] VSCA 222
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr J Angenent | Zaparas Lawyers |
For the Defendant | Mr R Stanley SC with Ms N Hanna | Wisewould Mahony |
HER HONOUR:
Introduction
1 The plaintiff was injured in a transport accident on 15 July 2019 when she was rear-ended by another vehicle whilst stopped at a red light.
2 The plaintiff seeks a determination pursuant to s93(17)(a) of the Transport Accident Act 1986 (“the Act”), that she suffered a serious long-term impairment or loss of a body function of the cervical spine and pursuant to s93(17)(c) for a severe long-term mental or severe long-term behavioural disturbance disorder.
3 In order to succeed in respect of the physical injury relied on pursuant to s93(17)(a) of the Act, the plaintiff must satisfy the Court that the claimed impairment consequences from the injury constitute a serious long-term impairment or loss of a body function of the cervical spine. To succeed in respect of the psychiatric condition relied on pursuant to s93(17)(c) of the Act, the plaintiff must satisfy the Court that she has suffered a long term mental or long-term behavioural disturbance that is severe, which is “stronger in terms of significance or gravity than serious.”[1]
[1]Mobilio v Balliotis [1983] 3 VR 833 at 854
4 In determining this application, the Court must be satisfied on the balance of probabilities that the injury suffered by the plaintiff was a result of the transport accident and that the injury is a “serious injury” within the definition of “serious injury” contained in s93(17) of the Act. I must make the assessment of serious injury at the time the application is heard. The term “serious injury” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category.[2]
[2]Humphries & Anor v Poljak [1992] 2 VR 129 at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441, in particular, Chernov JA at paragraph [29]
5 The plaintiff relied upon two affidavits sworn on 13 December 2022 and 30 January 2025, and an affidavit sworn by the plaintiff’s sister, Mahla Karimiyan, on 30 January 2025.
6 In addition, both parties relied on medical reports and other material which were tendered in evidence. At the hearing of the application, the plaintiff gave evidence and was cross-examined. I have read all the tendered material and I will refer to the relevant evidence to the extent necessary in these reasons.
Issues
7 The defendant opposed the application and maintained that there were significant credit issues which were relevant to the alleged consequences arising from the plaintiff’s physical injury sustained in the accident.
8 In respect of the subparagraph (c) claim the defendant submitted that there was not sufficient medical evidence to determine what was driving the consequences of severity. The state of the medicine was unclear on the question of psychiatric consequences under the subparagraph (a) claim. Moreover, the psychiatric consequences relied upon need to be permanent, and there was concern regarding the stability of the plaintiff’s current psychiatric state.
9 The defendant submitted that there was not a sufficient connection between the transport accident and the plaintiff’s complaints of dizziness and a vertigo-like condition.
10 Finally, the defendant identified that range was in issue.
Background and medical history
11 The plaintiff was born in July 1997 and is 28 years old.[3] She was born in Iran and moved to Australia when she was aged 15 years old. She completed her study in Fashion Design and Merchandising in or around 2017 and completed a further Fashion Styling course in 2018.[4]
[3]Affidavit of Mahfam Karimiyan sworn on 13 December 2022, Plaintiff’s Court Book (‘PCB’) 12 [1]
[4]Ibid 16
12 The plaintiff deposed that she experienced some pelvic and abdominal problems for which she had presented to hospital on a number of occasions. She was found to have an ovarian cyst but otherwise the investigations were inconclusive in relation to her ongoing issues.[5]
[5]PCB 12 [9]
13 On 15 July 2019, she was involved in a transport accident when she was rear-ended when stopped at a red traffic light.[6] At the time of her accident, she was employed in retail with TK Maxx working variable hours.[7]
[6]Ibid [13]
[7]Ibid [4]
14 The plaintiff claimed to have suffered injury to the neck, both shoulders and psychological trauma as a result of the accident.
15 On 17 July 2019, the plaintiff attended the Austin Hospital Emergency Department of treatment in respect of generalised neck pain.
16 On 29 August 2019, the plaintiff first saw her regular GP in relation to the accident and was prescribed various medications and referred for radiology and physiotherapy.[8]
[8]Ibid 13 [16]
17 On 24 September 2019, the plaintiff lodged a TAC claim form in relation to her injury, which was accepted.
18 She underwent an MRI scan of her neck on 10 October 2019, and she commenced physiotherapy with Ms Shah Aryan on 16 December 2019.
19 The plaintiff was referred to Mr Patrick Chan, neurosurgeon, and saw him on 10 March 2020. He recommended conservative treatment and pain management and referred her to see Dr Nick Christelis, a pain specialist, who she attended by telehealth twice in around April 2020.
20 The plaintiff was then referred to see Dr Shahram Sadeghi, pain specialist, on 9 June 2021.
21 The plaintiff deposed that her psychological health deteriorated, and she commenced psychological counselling with Ms Azita Deljo on 27 October 2021, who was the psychologist she had consulted before the transport accident for anxiety.[9] However, due to difficulty in scheduling appointments, she started seeing Dr Faranak Toosi, psychologist, who she saw at least once a week.[10]
[9]PCB [26]
[10]Affidavit of Mahfam Karimiyan sworn on 30 January 2025, PCB 23[7]
22 The plaintiff deposed that she experiences ongoing problems with her neck, both shoulders, headaches and a psychological injury. She said her main problem was the neck injury and she described being in constant pain, causing her headaches and pain in both shoulders travelling down her right arm.[11]
The Evidence
[11]Ibid 15
TAC payments
23 Before being cross-examined the plaintiff confirmed that she swore two affidavits in support of her application. She sought to make a “correction” or “clarification” in relation to the following paragraphs of her first affidavit sworn in December 2022:[12]
“33. I was unable to return to retail work due to my injuries and received LOE/C benefits from TAC for a period of time.
34. I recently attempted to get office-based work and got a job at Mazda. However, I only managed 5 months in that job before I was terminated for having too many sick days due to my injuries. This occurred in June 2022.”
[12]Ibid 14 [33]-[34]
24 In response to questions put to her by her counsel, she explained that in the period between the accident and commencing work at Mazda, she:[13]
“did try to go back, from memory to go back to TK Maxx and then COVID hit so the shop was closed for a long period of time. Then I might have gone back after COVID just occasionally but then that’s when I realised I can’t do retail anymore and I started applying for more office-based jobs and that’s how I got the Mazda job.”
[13]T17 L18-24
25 The plaintiff was cross-examined in relation to the hours worked at TK Maxx, both before and after her accident, and in relation to the employment records from TK Maxx.
26 The plaintiff confirmed that her affidavit evidence was correct. She gave evidence that she was sometimes working up to full-time hours at TK Maxx prior to the accident and that she may have worked a few weeks in a month up to full-time hours and that she did so on a fairly regular basis.[14]
[14]T19 L8-18
27 The plaintiff was shown the TK Maxx records, in the 15 months from April 2018 until the date of the accident. It was put to her that they disclosed that the greatest number of hours that she worked in a week was 27.65 and typically she worked under 10 hours per week to which she responded, “I don’t know.”[15] Cross-examination continued as follows:[16]
[15]T20 L13
[16]T22 L21-T23 L14
“Q:And I suggest to you that's the extent of the work you did in the work between 6 April and 13 April; do you accept that's likely to be so?
A:It was a long time ago, I can't remember any of these. Like, I can't remember.
Q:TK Max (sic) wasn't paying you cash though, it was all done on the books?
A: Yes.
Q:What I want to say to you is that these are the books and that whilst your memory might fade, you'd have to accept that the books are accurate; do you accept that?
A: Yes.
Q:And if we accept the books are accurate, we see throughout that three month period before your injury, only three weeks where you worked more than 10 hours a week. Indeed, as we can see, many of the weeks, particularly leading up to the time of your injury, you're only works (sic) four hours a week. If we accept the book is accurate and that those were the hours you were doing in the lead-up to your injury, I want to suggest to you it's a nonsense for you to be telling the reader that you sometimes, prior to the accident, worked up to full-time hours. Do you accept that it's wrong, what you say in your affidavit?
A:I said before these timings that you're showing me, I did work up to full-time hours sometimes. I didn't say all the time, I said sometimes.”
28 The plaintiff’s declared income for the financial year 30 June 2018 to 1 July 2019 from TK Maxx was $3,898 and she accepted that this was correct.[17]
[17]T24 L17-21
29 The plaintiff was cross-examined in relation to the hours worked at TK Maxx after the accident. She rejected that when she her swore her affidavit that she was unable to return to retail work due to her injuries, that she was making a deliberate attempt to deceive. She denied the suggestion that she was seeking to promote herself as a hard worker because it would assist her claim and she responded, “I still believe before the accident I was a hard worker and my life was so different.”[18] She denied that she had exaggerated the severity of the collision in order to dramatise the effects of her injuries and to impress on the Court and doctors that this had led to significant injuries.
[18]T23 L22-23
30 The plaintiff was questioned regarding the hours she worked between August and December 2019 and her evidence was that she could not remember.[19]
[19]T46 L18-T47 L1-7
31 The plaintiff was asked:[20]
[20]T47 L8-27
“Q:In May 2020 - perhaps before we move to 2020, what I want to suggest to you is that after the accident, yes, there was time when you weren't working at TK Max (sic) but then there were several weeks through 2019 when you were working, do you accept that?
A: Yes.
Q:And working at a similar style rate, that is number of hours a week, as to what you'd been doing for the three months before the accident. Do you accept that they are similar, the hours?
A:I don't know.
Q:We then have dreaded COVID come into play in 2020 and I think you and told us that the store closed down for a period, is that so?
A: Correct.
Q: Although during periods when the community wasn't in lockdown, for instance, the latter part of 2020, you may recall that Christmas period after the first COVID year, do you remember that? Do you remember the optimism that we all had that COVID numbers were down?
A: I can't remember.
Q: And that Christmas was reasonably normal, do you remember that?
A: A little bit.”
32 It was put to her that she returned to work for TK Maxx after the first lockdown in May 2020 and she responded:[21]
[21]T48 L10-30
“A:Sir, I did mention before COVID I did try to go back to work. I can't remember how long for and then the second lockdown happened and it was a (sic) really long term, like long-term lockdown and I wasn't working then.
Q:No, but I suggest when lockdown finished in May of 2020, that first year, you returned to work and the records you can see at the bottom of p100, the last four entries indicate work in May. 16 May, 5.5 hours; 23 May, 15 hours over that week; 30 May, 20 hours over that week; 6 June, 25 hours. I suggest you were working those hours, according to this document and that the document speaks the truth, you were working those hours; do you accept that?
A: I do believe that I tried to go back to work.
Q: After COVID - after the initial hit of COVID?
A: Before COVID.
Q: Before COVID?
A:I can't remember the timing, sir. I really can't remember the timing and this is just all too fast for me. I can't concentrate, like just looking at these numbers.”
33 The plaintiff agreed that TK Maxx was closed during the second COVID lockdown between 9 July 2020 and 27 October 2020,[22] and she did not work during this time. The plaintiff was cross-examined at length in relation to the payroll records between November and December 2020 and it was put to her that the records consistently showed the plaintiff working between 20 and 25 hours each week.
[22] T49 L14-20
34 She was asked:[23]
“Q:That was the end of 2020 and what I want to suggest to you is at p101, we can see you're working weeks in November 2020, 25 hours, 25 hours, 25 hours. Over the page at the top of 102, leading into Christmas of 2020, so that's after the first hit of COVID but before the second, 25 hours. Into the heavy Christmas days of December, 20 hours, 25 hours, 25 hours?
A: I can't remember.
Q: If you can't remember though, do you accept that these documents indicate that you did work those hours that they say you were working?
A:Because during COVID I was getting paid but I wasn't working.”
[23]T49 L23-T50 L3
35 The plaintiff acknowledged receiving loss of earning and loss of earning capacity payments from the TAC from late 2019 until she commenced working for Mazda in February 2022. The TAC records identified regular payments to her over a period of 18 months. The plaintiff confirmed that she understood that these payments were made to her to compensate for her loss of earnings and she recalled receiving the weekly benefits.[24]
[24]T53 L15-25
36 The cross examination continued as follows:[25]
[25]T64 L19-T65 L29
“Q:I suggest that this shows you not telling the truth to the doctor and not telling the truth to the TAC?
A: I don't believe that.
Q: If we go over a couple, if we might, to pp17 and 18. You will see 17 says that the examination occurred on 6 November 2020. You might remember my questioning to you earlier and us trying to work out COVID and you will recall I was putting to you that at the end of 2020 Victoria and Australia was doing well by COVID standards and there weren't restrictions. I think you accepted that, that there was a first tranche and then there was the more troubling second one in 2021. Do you remember that period, now that again I say to you, that there was that Christmas in between the two when things were okay?
A: I really can’t remember the time.
Q: In any event, that certificate is authored on 6 November 2020. Again we can see the doctor saying you had no capacity. Going forward from that date, you making (sic) that declaration in the middle of p18 that you hadn't worked since the last certificate and we know the last certificate by virtue of going back into the book, we can see at p16 there was a certificate of 16 October. So what this one is saying on 6 November is you haven't worked between 16 October and the date of this one, 6 November; you haven't worked late October of 2020, but again, if we have a look at the records at p101, we can see a pay period ending 7 November, so the first week in November, you worked 20 hours. If that's correct, this certificate comes on 6 November, just a day before the week ended at work when you'd done 20 hours?
A:Sir, all I remember, I had two surgeries, end of 2020 and end of 2021 and for both of those surgeries I had to take a lot of time to recover. So I couldn't even be working end of 2020.
Q:I suggest to you that's just not accurate. You were working, as the documents at TJX Australia identify in these pay records. If it be so, if Her Honour accepts that you worked 20 hours in a week that led up to 7 November 2020, 20 hours in that week, it's got to be wrong by you to declare on 6 November that you hadn't worked in the previous month?
A: I can't recall that, I'm sorry.”
37 Although the plaintiff acknowledged submitting the certificates of capacity to the TAC and signing the declaration, she maintained that “I would have tell (the doctor) (sic) him the truth, if I was working or if I wasn’t working”[26] and rejected that she was deceitful to obtain loss of earning benefits.[27] She gave evidence as follows:[28]
“Q:You knew that you were presenting to the TAC that you were incapacitated for any form of employment in the months of November and December 2020?
A:I still say the same thing, sir. If I said I wasn't working, I wasn't working. I did mention I tried to go back to work and then COVID happened. I've got nothing else or anything else to say really, that I'm telling the truth and I believe in it.”
[26]T62 L5-6
[27]T106 L28-30
[28]T68 L15-22
38 The plaintiff was cross-examined in respect of hours worked in October 2021, November 2021, December 2021, January 2022 and February 2022 and it was put to her that records showed that she worked between 20 to 30 hours per week.[29] She queried the accuracy of the records as she claimed to have had nasal surgery in September or October and had some time off.[30] During this period, she agreed that she received loss of earning TAC payments.[31] The plaintiff was cross-examined at length in relation to a chronological bundle of medical certificates dated from 30 September 2019 to 12 January 2022 in which she signed the declaration in relation to work. The certificates coincided with the periods at which she worked at TK Maxx.
[29] T51 L7-23
[30] T51 L19-24
[31] T58 L6-14
39 During the course of her evidence in relation to the receipt of loss of earning and loss of earning capacity payments from the TAC, I gave the plaintiff a certificate under s128(4) of the Evidence Act 2008 in relation to self-incrimination.
40 It was put to her that she was not truthful to her doctor, Dr Esfahani and that she did not declare to him that she had been working, which she denied.[32] She was cross-examined in relation to histories given to other medical practitioners regarding her return to work after the accident namely:
(a) She saw Dr Frelich in November 2022, and he took a history that she did not return to work because of her injuries. She responded that she “might have said that I didn’t get back to work immediately after the accident”[33]
(b) Dr Diane Neill’s history was put to her:[34]
“Q:Was unable to get back to work because of her neck pain. Then there was COVID. She was struggling to find any work in her industry. She said fashion is a small industry with not a lot of openings. She was bored at home and tried to get into alternate type work, office work'?
A:I never mentioned I was bored at home. I'm young and I had to try my best to get back to the normal life and I was struggling every day but I never said I was bored at home. That wasn't what I say (sic).”
[32]T43 L18-21
[33]T44 L6-7
[34]T44 L15-24
Her response was unresponsive to the question.
(c) In relation to the question she was asked relating to the history recorded by Mr Asaid about her inability to return to pre-injury after her accident, she could not remember if she said that.
Work At Mazda
41 The plaintiff was cross-examined in relation to her employment with Mazda and acknowledged that she did not disclose any pre-existing injury or health condition in her application for employment because otherwise she would not have been able to obtain work if she was truthful to a prospective employer about her injuries. She confirmed her affidavit evidence that the employment at Mazda was terminated due to her taking too many sick days. When asked how many sick days she was taking, she said it could have been up to once to twice a week.[35] When taken to the employment records from Mazda, and when it was suggested to her that over the four months that she was employed there she only took two sick leave days, she disputed the accuracy of the records.[36]
[35]T77 L11-15
[36]T79 L10-17
Medical treatment
42 The plaintiff stated that she did not undergo the medial branch blocks suggested by Dr Siddiqui as she was scared to undergo the procedure.[37] On 29 November 2021 the plaintiff presented to Austin Hospital complaining of chronic abdominal pain. The clinical notes indicated her presenting complaint was related to abdominal pain and associated gastrointestinal symptoms. She was cross-examined in relation to the absence of any history of neck pain or medication in the attendance note. Her response was “I can’t recall.”[38] On 26 July 2020, the plaintiff saw Janet Cao gastroenterologist, for gastrointestinal issues. She was questioned regarding the doctor’s note that she did not suffer from any other medical condition and in respect of the absence of any reference to her taking Nurofen. When pressed, she said that whatever Nurofen or painkillers she was taking she would have told the doctors.[39] She rejected that the absence of any reference to neck pain in those histories was indicative of an absence of pain. She also rejected the suggestion that an absence of any reference to her consumption of Nurofen was because she was not taking same. The plaintiff gave evidence that she was recommended sleep medication by doctors at the concussion rehabilitation centre. When questioned about the type of sleep medication she was prescribed, she was unable to recall the name of the medication.[40]
[37] T83 L2-13
[38] T93 L2-20
[39]T103 L27-T104 L20
[40]T118, L10-18
Social Media
43 The plaintiff acknowledged that she posted TikTok videos on her TikTok account in 2021. It was put to her that the first video depicted her on a trip to Sydney in 2021 with girlfriends. She conceded that this trip to Sydney took place in 2021 and scenes at the Bondi Icebergs pool were taken in 2021.[41] The second video was of her dancing and exhibiting various outfits in 2021 and the third video showed a montage of her in outfits and dancing, also taken in 2021.
[41]T128
44 The plaintiff maintained that she could not recall when the second and third videos were taken and whether they were taken before or after her injury. She also maintained the videos were heavily edited and were a collage of videos. She rejected that she had a social media presence before she commenced seeing Dr Toosi.
45 The plaintiff was cross-examined in relation to her social media activity and posts on Instagram throughout 2023 and early 2024, in which she described herself as a “Digital Creator” and founder of @Moonzthelabel. The Instagram posts were of the plaintiff variously dressed for social outings, socialising with others at a birthday celebration, attending a night club, attending a rooftop bar and in fancy dress. The plaintiff was well presented and groomed in the exhibited pictures.
46 In addition to her affidavits, the plaintiff relied on an affidavit from her older sister Mahla Karimiyan.[42] Her sister described the family as close, and she considered herself to be the plaintiff’s main emotional support. She described her sister as a gorgeous, fun-loving, confident young woman before the accident, and she expected her to be a great success in fashion modelling and in the social media space. She described her sister as a healthy outgoing young woman who was excited about the future and living her best life. Following the accident, she deposed to observing a steep decline in the plaintiff’s confidence and enjoyment of life and that the plaintiff complained to her of neck pain and headaches all the time. She also described her as withdrawn, regularly upset and tearful, as her dreams had been shattered. She also deposed in having arranged photo shoots for the plaintiff which ended in “big drama”[43] due to the plaintiff becoming upset. Before the accident she and the plaintiff would have a small store selling their clothes at a market attended by social media influencers. Following the accident the plaintiff did not participate in this. She also tried to encourage the plaintiff in a fundraising run in 2022, but the plaintiff was not able to run for more than a few minutes due to the pain. The plaintiff’s sister sought to emphasise the contrast in her sister’s presentation and activities that she engaged in before her accident, compared with her life now as it had completely changed.
[42]Affidavit of Mahla Karimiyan sworn on 30 January 2025, PCB 18
[43] PCB 19
Re-examination
47 The plaintiff sought to clarify her evidence in relation to her work history after the accident and sought to dispute the accuracy of the TK Maxx employment records. The plaintiff explained that although the TK Maxx records showed her rostered during lockdown periods, she was not physically present or working in the store during those times. She said that the records were not an accurate reflection of her actual hours of worked during those periods as the store was closed due to COVID restrictions.
Treating medical practitioners
Dr Peyman Esfahani, general practitioner
48 The plaintiff commenced seeing Dr Esfahani on 25 September 2018, before the motor vehicle accident. The most recent report he provided was dated 10 July 2021. He recorded a history of the plaintiff being hit from behind which caused a head whiplash injury, as well as her right mandible hitting the steering wheel. He noted that she was suffering from pain in the neck, right mandible and both upper limbs as well as insomnia at night. He arranged for her to undergo an MRI of the cervical spine on 10 October 2019 which reportedly showed that the vertebral body heights were within normal limits, intervertebral disc heights were well preserved, and that there was no significant abnormality seen within the vertebral bodies or paravertebral soft tissues. There was very minimal abnormality with a suggestion of very minimal central disc osteophyte complexes at C4/5 and C5/6, not resulting in canal or foraminal stenosis. The remainder of cervical levels appeared satisfactory. There was no evidence of a significant disc lesion, no canal or foraminal stenosis and no nerve root compression. He prescribed Norgesic, Voltaren, and Lyrica. He also referred her to Aryan Shah, physiotherapist, on 29 October 2019, to Mr Patrick Chan on 23 January 2020, and to Dr Shahram Sadeghi on 10 May 2021.
49 Dr Esfahani concluded that the plaintiff “is isolated socially, has difficulty doing her normal daily duties and not been able to go back to work since her accident happened.”[44]
[44]PCB 50
Mr Patrick CH Chan, neurosurgeon and spinal surgeon
50 The plaintiff first saw Mr Chan on 10 March 2020 and reported daily symptoms of suboccipital neck pain and lower neck pain that radiated up to the head with a bitemporal headache. She also complained of occasional lower back pain. She had dizziness with movement, left upper limb numbness extending from the left shoulder into the left posterior arm and to the left elbow and left forearm involving all fingers, and to a lesser extent symptoms on the right arm and right forearm. She described having to sit up to sleep, had difficulty holding objects on her left side, and two days before the consult she had a fall due to the extreme dizziness. She was taking analgesia and having physiotherapy twice per week and stopped working due to the persistent symptoms.
51 On examination, Mr Chan noted mild tenderness over the suboccipital region at C1/2 and the lower neck. Her shoulders had a full range of motion and neurological examination revealed mild reduced sensation of the left little finger. Otherwise, tone, strength and reflexes were normal. His impression was that she had persistent mechanical axial neck pain with cervicogenic headache, post-traumatic vertigo and persistent left upper limb symptoms. Given her clinical and radiological findings, she did not require neurosurgical intervention, and Mr Chan referred her to Dr Nick Christelis for assessment and treatment.
Dr Nick Christelis, pain specialist and anaesthetist
52 Dr Christelis first saw the plaintiff on 1 April 2020 and noted that she complained of chronic pain around the neck, although he did not observe anything “structural that requires any interventional therapy.”[45] The plaintiff’s complaints of left upper limb pain and headaches sounded like a whiplash associated injury. He noted limited treatment from the psychologist, physiotherapist and mild medications. He recommended an increase in activity and a full assessment and treatment including pain physiotherapy, pain occupational therapy, and pain psychology. He requested the plaintiff complete a pain questionnaire, and he prescribed Endep 5mg to 20mg nocte.
[45]PCB 54
Jazmin Cruz, pain physiotherapist
53 The plaintiff was referred to physiotherapy and presented to Ms Cruz on 15 May 2020 with reduced range of movement in the cervical spine, an inability to open her mouth fully due to locking in the right jaw, and reduced strength and endurance in the right upper limb. The plaintiff described significant restrictions to her daily personal, domestic, community and leisure activities and a significant impact on her mood and sleep. She also reported that she had to cease work due to her pain symptoms.
54 Ms Cruz recommended the plaintiff continue physiotherapy to provide her with strategies to better manage her pain and increase her independence and confidence in self-management in order to improve her overall function and quality of life, as well as to enable her to explore returning back to a level of work appropriate for her.
Dr Sharam Sadeghi, specialist rehabilitation physician
55 The plaintiff was referred to see Dr Sadeghi on 9 June 2021. Dr Sadeghi arranged for the plaintiff to undergo an MRI which she underwent on 25 October 2021 which did not detect any abnormality. He informed the plaintiff that she could potentially benefit from medial branch blocks to her right and cervical facet joints, but she was not keen on the option. He noted that the plaintiff reported to be troubled by cervical pain, right shoulder pain and vertigo, that she was not taking regular medication and was undergoing physiotherapy. Dr Sadeghi recommended that the physiotherapist instruct the plaintiff in a home exercise program, but on review noted that this had not been done. He offered the plaintiff the option of attempting percutaneous spine treatments to manage her pain which she did not take up. He suggested Kieser physiotherapy which she also did not undertake.
MRI right shoulder and cervical spine dated 16 September 2022
56 The plaintiff underwent an MRI of the right shoulder and cervical spine which revealed mild subacromial bursitis, no advanced degeneration of the acromioclavicular joint, and intact rotator cuff tendons and labral ligamentous complex. With respect to the cervical spine, the alignment and curvature in the cervical spine was maintained, and the vertebral bodies retained height. The intervertebral disc height was fairly well preserved and there was no focal disc herniation or a disc osteophyte complex noted. There was no significant canal stenosis, foraminal narrowing or root compression. There was normal volume and signal in the cervical cord, unremarkable facet joints, and the paraspinal and prevertebral soft tissues appeared normal.
Dr Faranak Toosi, psychologist
57 Dr Toosi was supporting the plaintiff in addressing her psychological and emotional challenges arising from the pain and trauma caused by the accident, as well as providing insight into the plaintiff’s “recent” activity on social media and its relevance to her ongoing psychological recovery. Dr Toosi considered that social media activity represented a therapeutic tool in supporting the plaintiff’s recovery and it was a significant component of her broader psychological recovery plan, aimed at addressing deeper emotional and cognitive challenges that have arisen from her accident. In Dr Toosi’s opinion, in sharing creative content and interacting with others online, this helped the plaintiff with her feelings of isolation and to regain a sense of agency. However, the “curated moments of connection and creativity” did not capture the full extent of her ongoing struggles or the effort required to rebuild her life.[46]
[46] PCB 61
Joint medico-legal examinations
58 Joint medical examinations were conducted by Mr Ash Chehata on 9 February 2022, Dr David Freilich on 8 November 2022 and Dr Leon Turnbull on 10 February 2022.
Mr Ash Chehata, orthopaedic surgeon
59 Mr Chehata obtained a history of the plaintiff being rear ended after which she continued to suffer ongoing neck pain with radiating pain to the cervical spine and up into the occipital region. He noted she attempted to return back to her work and remained in that work in retail for a few months, but then ultimately, due to the ongoing neck pain, as well as her worsening anxiety, which was longstanding, she was unable to drive and became quite secluded. She noticed that her neck pain was worsening with severe cervicogenic headaches, tiredness and dizziness. This eventually had a significant effect on her relationship with her husband and other interpersonal relationships, and on her ability to engage with any family members. She stopped being able to perform her ballet and hip hop due to her headaches and dizziness.
60 He noted on examination that the plaintiff had a relatively well-maintained rotation to the right and left although this was painful. She had symmetric muscle spasm and asymmetry in the cervical spine on flexion with no radiculopathy or myelopathic features. There was no suggestion of muscle wasting of the trapezius or radiculopathy or myelopathic features. The radial, ulnar and median nerves were intact. Both shoulders had a full range of movement and there was no compression either at the cubital tunnel or carpal tunnel, with no intrinsic muscle wasting of the small muscles of the hand. The plaintiff continued to struggle to perform normal activities of daily living and could no longer cook, clean, vacuum and was reliant on her husband for all of the cooking, cleaning and shopping. Mr Chehata’s tentative diagnosis was a likely myofascial injury and chronic pain presentation with a whiplash style phenomenon to the cervical spine.
61 In his second report dated 15 October 2024, an examination arranged by the plaintiff’s solicitors for medico-legal purposes, Mr Chehata noted that the plaintiff had “essentially developed what appears to be quite significant whiplash across the cervical spine radiating to both shoulders with MRI scans excluding any fractures, dislocations, ligament disruptions, or any oedema across the soft tissues.”[47]
[47]PCB 68
62 The plaintiff complained of significant tiredness, dizziness, confusion as well as mood changes, and has essentially been managed conservatively with ongoing physiotherapy. She has transitioned from taking six to eight tablets of Panadol, Nurofen, and Paracetamol, down to two to four per day. He noted that she had remained employed working in the car industry and had worked since February 2023 after losing her previous job due to taking too much time off due to her anxiety.
63 Her current complaints were of ongoing headaches and widespread pain, particularly posteriorly, as well as bilaterally in the trapezius musculature and scapulothoracic pain. On examination, Mr Chehata again observed full range of movement at the level of the cervical spine, mild pain on flexion with no restriction, and she was able to extend, rotate to right and left, with no radiculopathy or myelopathic features. Reduced range of movement across both shoulders was noted as likely related to trapezial muscle pain and muscular and scapular thoracic pain. There is no wasting of the upper shoulder girdle, upper arms bilaterally and has a full range of movement at the level of the right and left elbows. She also described intermittent lower back symptoms.
64 In Mr Chehata’s opinion, all the investigations excluded any major genetic pathology, and the MRI scans as well as ultrasounds of the left shoulder and an MRI of the right shoulder, have failed to delineate any major pathology with some elements of bursitis, but intact rotator cuff tendons.
65 He diagnosed a chronic whiplash injury, chronic pain syndrome and anxiety, and recommended treatment with a self-managed exercise program as well as psychological counselling. The chronic pain was driven by anxiety and depression and the organic orthopaedic injury per se was difficult to define. At the time of his review, she was not incapacitated and had returned back to full-time employment and remained at work.
Dr David Freilich, neurologist
66 The plaintiff reported that she experienced daily headaches starting at the back of her neck and radiating to both temples, varying in severity from 5 to 9 out of 10. The headaches woke her up at night and affected her sleep. She took Nurofen, which helped temporarily. Her headaches had not improved overall. She also reported bilateral posterior neck pain, radiating to both shoulders, more to the right. She was having physiotherapy twice a week from a third physiotherapist which was helping. She complained of dizziness and being lightheaded and had difficulty with focusing and concentrating. On the few occasions when she has felt dizzy, she had “a black out”.
67 She was independent with personal activities of daily living, although her family helped when needed, and her family and husband did most of the housework and cooking.
68 She had to give up dancing and modelling since the accident and “her whole life has been turned upside down”.[48] She was not well emotionally, was moody, and this affected her marriage and family relationships. She was seeing a psychologist.
[48]PCB 74
69 Cranial nerve examination was normal. In the upper limbs, she had diminished pin prick sensation over the whole of both hands, which was, in his opinion, not anatomical and not due to an organic lesion. The upper limbs were otherwise neurologically normal, and the lower limbs were neurologically normal. Her symptoms of headache and neck pain related largely to the neck injury. The dizziness, in the doctor’s opinion, was fairly non-specific. He found no evidence of any neurological complications arising from the injury. Specifically, there was no evidence of damage to the brain, cervical cord or cervical nerve roots. He concluded that the plaintiff had sustained a head injury in the accident which was minor and did not result in a brain injury. The plaintiff also sustained a neck injury without neurological complications.
70 The neurological examination was essentially normal and the impairment sensation in both hands was not anatomical and not organic.
Dr Leon Turnbull, occupational and forensic psychiatrist
71 The plaintiff reported her main problem was neck pain and headaches. She reported becoming depressed, losing motivation, that her moods were up and down, but that she was now “working on myself”[49] and was seeing a psychologist. She was anxious driving and did not like to drive in unfamiliar places. Her sleep was affected by pain, leaving her feeling tired during the day. She had become a bit socially isolated.
[49] PCB 77
72 Dr Turnbull diagnosed a mild adjustment disorder with some post-traumatic features, and she had a largely secondary psychiatric insult because of her physical conditions.
The plaintiff’s medico-legal reports
Dr Nicholas Ingram, consultant psychiatrist
73 The plaintiff had significant physical symptoms since the accident, the worst being frequent daily headaches, from which she obtained some relief with Nurofen and Panadol. Overall, the headaches had not been improving and seeing a pain specialist had not made much difference. She had also had frequent episodes of pain in the right shoulder that had radiated into her right hand, associated with numbness and tingling, and there had also been intermittent pain in her lower back and at times felt dizzy and lightheaded.
74 Since the accident, the plaintiff said her life had changed significantly. She had to give up the interests that she had enjoyed, gave up playing the flute, and she had no longer felt like seeing friends, preferring to stay at home on her own. She felt very tired after her working days and had often gone to bed at about 6:30 pm. Her parents and her sister had been supportive, but things had been difficult with her husband, and recently they had been having some joint counselling which had made things a little better.
75 The plaintiff found housework harder to do and she only did a little cooking. Her sexual relationship had also been significantly affected, in part because of her pain and in part because of a loss of libido. She had felt she had become depressed, no longer feeling happy with her life as she had used to, which was associated with a sense of feeling useless and worthless. She had related her depression to the fact that she had continued to be in chronic pain and also that she had had to give up her dreams of becoming a model or opening a dance studio or having her own fashion brand online.[50]
[50] PCB 82
76 Associated with her depression had been a loss of motivation. The plaintiff said she had become socially withdrawn and had been tearful three or four times a week. She also felt anxious a lot of the time and was more anxious driving than she had been in the past. In the first few weeks after the accident, she had flashbacks to the time of the actual collision.
77 She had seen a psychologist initially after the accident, though had not felt that she had really engaged with her. In the last year, however, she had found a new psychologist to whom she felt had established a therapeutic relationship and had been helpful. She had also seen this psychologist a few times with her husband leading to positive changes in their marriage. Her local doctor had suggested antidepressants, but she did not want to take them.
78 In Dr Ingram’s opinion that plaintiff was mostly suffering from a chronic adjustment disorder with depressed mood and anxiety, a secondary consequence of her chronic pain and the limitations this has led to. She also had some mild residual PTSD symptoms, though these were improving with time, and in the long run unlikely to be a major issue.
79 The plaintiff’s main problem was chronic pain. Dr Ingram felt the plaintiff should continue to have the psychotherapy over the next year or so, with the aim of helping her come to terms with her limitations. It would help her accept the fact that she has lost four years that may have been more productive and instead focus more on what she might be able to do into the future.
Dr Symon McCallum, pain physician and specialist anaesthetist
80 Dr McCallum reported that the plaintiff continued to suffer ongoing neck pain radiating to the cervical spine and up to the occipital region. She was unable to drive and became quite secluded. Neck pain was worsening with severe cervicogenic headaches, tiredness and dizziness.
81 She reported that she struggled to perform normal activities of daily living and could no longer cook or clean. She could not vacuum and was reliant on her husband for all cooking, cleaning and shopping.
82 On examination, the plaintiff demonstrated a slightly decreased range of movement in the cervical spine and experienced pain with forward flexion of the arms and was unable to elevate the arms beyond a certain level. Both shoulders exhibited a good range of movement.
83 Dr McCallum’s diagnosis was a of cervical whiplash, cervicogenic headaches, myofascial pain syndrome involving the neck and shoulder and post-traumatic stress disorder, anxiety, deconditioning and a chronic pain syndrome.
The defendant’s medico-legal reports
Professor Stephen Davis, neurologist
84 Professor Davis noted that the plaintiff said she was off work for a couple of weeks after the accident but could not recall the precise timeline, and then the COVID pandemic occurred. At the time of Professor Davis’ examination, she was working full-time in the office in the car dealership and auto trades. She reported requiring a lot of painkillers, particularly Nurofen, and still took a lot of time off work, at least four days a month, due to ongoing symptoms including headaches, neck pain, shoulder pains and dizziness. She sometimes took Panadeine. She had not taken antidepressants, although these had been recommended.
85 The plaintiff drove, but driving for any duration resulted in anxiety. She used to have regular physiotherapy but had reduced the frequency as she had to self-fund it. She saw a psychologist online, aiming at once a week.
86 She felt that in the five years since the accident, her condition had become “worse”.[51] She was no longer the same person, was constantly fatigued with dizziness, headaches and neck pain. She was always in pain and was tired.
[51] Defendant’s Amended Court Book (‘DCB’) 25
87 On examination, Professor Davis noted that the plaintiff was accurately orientated for the day and date, and location. She complained of some discomfort with movements of the neck and lumbar spine although there was no significant restriction, guarding or rigidity. There was no nystagmus, normal optic fundi and no neurological abnormalities in the limbs. There were no features of radiculopathy or myelopathy.[52]
[52] Ibid 26
88 He entertained the suggestion of a post-accident, concussion syndrome and noted the combination of prominent psychological features, impaired concentration, fatigue, anxiety and chronic pain without a defined structural basis, suggesting that this syndrome was mediated predominantly by psychological factors given the unremarkable investigations and normal neurological examination.[53]
[53] DCB 26
89 When asked about inconsistencies on examination, Professor Davis commented that there are no neurological abnormalities and no obvious basis for the chronic pain in the cervical or lumbar spine as based on the investigations.[54]
[54] Ibid 27
Dr Diane Neill, consultant psychiatrist
90 The plaintiff reported that her main problem was headaches and neck pain. She also had bilateral shoulder pains, dizziness which sometimes progressing to blackouts, numbness in hands, and stomach pains which she has been advised were caused by analgesic medications. The analgesics were then ceased, with subsequent reduction in abdominal pain.[55]
[55] Ibid 40
91 She also reported trouble with concentration and memory and had been referred by Dr Sadeghi for management of ‘post-concussion syndrome’. She attended about two to three sessions, and although the program was initially helpful, it was no longer helpful, and she stopped going because it was too far to travel. She did not obtain any cognitive rehabilitation.
92 The plaintiff reported she had been making progress from early 2023 with her mental health until her parents were both injured in a motor vehicle accident in about June 2023. She said she felt anxious “constantly” since the accident – worried, overthinking, tense and on edge. She did not describe traumatic stress type symptoms.[56]
[56] Ibid 42
93 Before the accident Dr Neill noted that the plaintiff said she had a number of sources of income from part-time casual jobs such as making “colour charts” for individual clients, backstage fashion dressing, teaching little kids of family friends dancing in private lessons, hip-hop, and belly dancing. She said she used to do a lot of dancing.[57]
[57] DCB 46
94 On mental state examination, within the limits of an audio-visual examination, Dr Neill noted that the plaintiff was attentive to her appearance, well-groomed including manicured long nails and tattooed eyebrows and dressed in shorts and a tee-shirt. She moved easily and fluidly, and she was not evidently in pain.
95 The plaintiff described her deteriorating marital relationship and three months before the accident, she sought a referral to psychological counselling, including relationship counselling, which had commenced before the accident.[58] In Dr Neill’s opinion, the plaintiff’s pain presentation was consistent with significant psychosomatic presentation. Her current mental health treatment comprised almost exclusively of psychological interventions delivered by unconventional means (multiple times a week by phone call) and described as generically supportive in nature.[59]
[58] Ibid 48
[59] Ibid 49
96 Mental state findings are consistent with cognitive, affective, and behavioural features of generalised and phobic anxiety, and personality vulnerabilities including dependency traits, associated with early childhood onset anxiety. In Dr Neill’s opinion, the plaintiff is suffering from:[60]
(a) Exacerbation of pre-existing generalised and phobic anxiety disorders with somatisation features;
(b) Personality vulnerabilities including dependent traits; and
(c) Marital strain.
[60] Ibid
Issues and submissions
Plaintiff’s submissions
97 It was submitted on behalf of the plaintiff that:
(a) She is a young refugee with a traumatic background, and she did her best to give honest and frank evidence despite being nervous and unfamiliar with the court environment. Her nervousness should not be mistaken for dishonesty, and she consistently denied any fraudulent conduct regarding her receipt of TAC payments or misleading doctors.
(b) The legal standard for establishing fraud is the Briginshaw test which requires clear and convincing evidence. The plaintiff categorically denied dishonesty. There was no proof that she knowingly made false declarations to the TAC.[61]
(c) There was confusion around the plaintiff’s work history, particularly during the COVID lockdowns, and that the employment records were unreliable and did not accurately reflect when the plaintiff was actually working, especially when the store was closed during lockdowns. The plaintiff did not claim to be unable to work when she was in fact working, and any inconsistencies are due to the fallibility of the records and difficulty in recalling exact dates years later, not dishonesty. There may be a correlation for a particular period of time for which the plaintiff received money from TK Maxx, and also receiving payments, but in the plaintiff’s mind she was not working when she reported such to her doctor.
(d) The plaintiff’s injuries are supported by both her treater and independent medical evidence. The reports from her general practitioner, neurosurgeon, pain specialist and psychologist confirm ongoing pain and functional impairment, and some of the defendant’s independent medico-legal doctors support the existence of a whiplash injury.
(e) Although there is some debate as to the precise psychiatric diagnosis or its permanence, the evidence points to a genuine psychological injury sustained following the accident, including anxiety, low confidence and withdrawal from activities. The psychological treatment that was encouraged by the plaintiff’s treaters included social media activity which was therapeutic to her.
(f) The social media entries and TikTok videos do not reflect her day-to-day activities, and I was referred to a decision of Judge O’Neill where he made such observations.[62] Moreover, rather than adversely reflect her credibility, her social media activities depict her desperate attempt to cling to her previous life, and these endeavours were supported by Dr Toosi.
(g) The plaintiff’s attempts to work and maintain a normal life were evidence of her determination rather than exaggeration, and that her ongoing symptoms and limitations, including an inability to pursue previous activities and life goals, demonstrate the significant impact of her injuries. A return to full-time work does not preclude a finding of serious injury.
(h) The plaintiff’s evidence in relation to her constant pain, regular medication and the profound effect the injury had on her, was reliable, and her injuries were genuine and serious.
(i) The plaintiff relied on the neck injuries to maintain that she has experienced wide ranging and profound consequences that she has consistently reported.
(j) As per Richards v Wylie, a mental response to a physical impairment can be used to measure consequences under sub-paragraph (a).[63]
(k) In Demmler v Transport Accident Commission, the Court of Appeal held that the fact that the plaintiff had returned to work with all the difficulties that that entailed, should not be held against her, and this was an analogous case.[64] The fact that the plaintiff is earning more than before the accident does not preclude a finding of serious injury.
[61]Briginshaw v Briginshaw (1938) 60 CLR 336
[62]Sharon McLarty v Healthscope Operations Pty Ltd & Anor [2017] VCC 501
[63]Richards v Wylie [2000] VSCAR 50
[64][2018] VSCA 284
Defendant’s submissions
98 The defendant submitted that:
(a) The plaintiff was not a credible witness, and credibility was crucial in this case. Given the lack of objective medical pathology, the Court had to rely heavily on the plaintiff’s own evidence and honesty regarding her pain and its consequences.
(b) The medical investigations that the plaintiff has undergone and medical opinions do not disclose any significant physical cause of the plaintiff’s pain or a neurological abnormality to explain her ongoing complaints of pain.
(c) The plaintiff is unable to clearly link her extensive symptoms to injuries she sustained in the accident, particularly given the absence of supporting medical evidence from her treating medical practitioners.
(d) The plaintiff has perpetrated a fraud having regard to the documentary evidence pointing to her working while simultaneously submitting certificates of capacity to the TAC, declaring she was unable to work and obtaining loss of earnings benefits deceitfully.
(e) There were inconsistencies between the plaintiff’s affidavits, her evidence and the employment records, particularly regarding her work history following the accident. Her claim of being unable to return to retail work following the transport accident was contradicted by the pay records of TK Maxx.
(f) The claim of psychiatric injury is not supported by robust and consistent medical evidence. The plaintiff has not seen a psychiatrist nor receives significant treatment. Reports from her treating professionals were sparse and inconsistent.
(g) The plaintiff’s ability to work full-time, her level of functioning, and the absence of treatment, medication and hospitalisation were inconsistent with the alleged severity of injury and psychiatric impairment she claimed to suffer.
(h) The TikTok videos and other evidence suggested that the plaintiff’s lifestyle and activities were inconsistent with the claims of severe and disabling pain.
(i) The plaintiff’s claim for serious injury under sub-paragraph (a) and sub-paragraph (c) should fail due to a lack of credible evidence, a lack of objective pathology and insufficient medical support.
Credit
99 The defendant attacked the plaintiff’s credibility by:
(a) Seeking to establish that the plaintiff misrepresented her work status and received TAC payments for loss of earnings whilst also working with TK Maxx.
(b) Submitting that the plaintiff repeatedly told her doctors and swore an affidavit that she was unable to work due to her injuries, but there were inconsistencies in that evidence.
(c) Submitting that the plaintiff exaggerated the severity of her injuries and the consequences on her daily life as shown by her social media activity, her ability to work full-time, ability to travel and ability to socialise. The pain and disability did not align with the objective evidence and her actual activities.
(d) Submitting that there was an absence of significant pathology or consistent medical findings to support the plaintiff’s claims of ongoing severe pain and psychiatric injury.
(e) Submitting that the plaintiff’s sister who provided a supporting affidavit, was aware of the plaintiff’s work at TK Maxx but did not disclose it, further undermining the credibility of both witnesses.
Compensable injury
100 The consensus of the medical evidence is that the plaintiff suffered a whiplash injury to the cervical spine. Dr Esfahani recorded ongoing pain in the neck without much change since her accident. Mr Chan considered the MRI of the cervical spine unremarkable and there was no disc protrusion, nerve compression or malalignment. Her condition was consistent with neck strain only and there was no structural spinal injury. Dr Christelis diagnosed chronic neck pain and did not consider there was any structural issues that required intervention. Dr Sadeghi considered the imaging to be unremarkable and diagnosed cervicogenic headache/neck pain/shoulder pain. Dr McCallum diagnosed whiplash, cervicogenic headaches and a myofascial pain syndrome. Dr Chehata diagnosed a chronic whiplash injury and chronic pain syndrome.
101 The imaging does not demonstrate any significant objective pathology and there is a lack of objective evidence to explain the severity of her symptom. Although I accept that the plaintiff likely did suffer a whiplash type injury to her neck in the accident, I am not satisfied that she is experiencing the constant and significant pain and restrictions she claims, nor am I satisfied with respect to the claimed consequences given my findings in respect of credit which are discussed below.
102 Dr Freilich found no evidence of any neurological complications and no evidence of damage to the brain, cervical cord or cervical nerve roots. The headaches related to the neck injury, and the dizziness was non-specific. Professor Davis concluded there were no neurological abnormalities and no obvious basis for her chronic pain in the cervical or lumbar spine based on the radiological investigations. Any post-accident concussion syndrome was likely mediated by psychological factors rather than organic factors.
103 I accept that the plaintiff also sustained a secondary psychiatric condition. Dr Toosi however does not provide a diagnosis. Dr Ingram diagnosed a chronic adjustment disorder with depressed mood and anxiety secondary to chronic pain and a mild PTSD which was not long-lasting. When he examined her in October 2024, he could not say that her psychological symptoms were stable and considered there will be further improvement with time and appropriate treatment. Therefore, there is a question mark over the permanency of those symptoms. Dr Neill diagnosed an exacerbation of pre-existing generalised and phobic anxiety disorders with somatisation features and personality vulnerabilities including dependent traits as well as marital strain. Dr Turnbull in 2022 diagnosed her with a mild adjustment disorder.
Findings
104 Given the lack of objective medical evidence, whether I accept the self-reported consequences depends on the plaintiff’s credibility and on whether I accept her evidence is truthful and reliable. Pain by its nature cannot be objectively measured. Whether I accept the plaintiff’s evidence not only depends on her credibility and reliability, but so do the opinions of the reporting doctors. Their conclusions rely heavily on the history provided by the plaintiff. If her credibility is challenged, the medical opinions based on her self-reporting also fall away.
105 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[65]
“... the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[65][2010] VSCA 69 [12]
106 The Court of Appeal has said in cases such as Dordev v Cowan and Ors[66] and Petrovic v Victorian WorkCover Authority,[67] and most recently in Popal v Transport Accident Commission,[68] that a plaintiff’s credibility is relevant, not only to the question of whether her evidence should be accepted, but also to the reliability of the medical evidence presented. This is because the opinions of doctors are partially dependent on the credibility and reliability of the history given to them by a plaintiff.
[66][2006] VSCA 254
[67][2018] VSCA 243
[68][2023] VSCA 222
107 Credit is particularly relevant in this case given the medical opinion is based on the plaintiff’s subjective complaints in the context of unremarkable investigations and radiology. In addition, there is a paucity of up-to-date medical reports from the plaintiff’s treating medical practitioners to confirm the plaintiff’s subjective complaints. There is no up-to-date medical report from the plaintiff’s treating general practitioner, the last report dating from 2021. The reports from Mr Chan, Dr Christelis and Dr Sadeghi date from 2020 to 2022. There is no report from the plaintiff’s psychologist to whom she was referred before the accident and who the plaintiff also consulted post-accident. The absence of up-to-date medical opinions from the plaintiff’s treating doctors makes it difficult for the Court to undertake the analysis as set out in Haden Engineering v McKinnon. Other than the medico-legal opinions, there are no treating doctors confirming her current complaints in respect of social and domestic restrictions, restrictions at work, impact on sleep, medication intake, constant and unremitting pain, headaches, and her claimed inability to participate in social and recreational activities.
108 The plaintiff’s evidence in relation to her work at TK Maxx is entirely unsatisfactory. I find that the plaintiff was not truthful when she swore her affidavit that she did not work following her accident. It was not merely a slip or a gap in her evidence but a deliberate attempt by the plaintiff to exaggerate the effects of her accident by deposing that she was unable to return to work following the injuries she sustained. Her affidavit was sworn in December 2022. It could not have slipped her mind that she returned to work after her injury in 2019 and that she continued to work both before and after the COVID lockdowns throughout 2020 and 2021. She also maintained to the doctors who examined her around this time that she did not return to work following the accident, further confirming that the plaintiff’s evidence was not a drafting error or an oversight on the plaintiff’s part, but a deliberate attempt to exaggerate the extent of her injuries and their consequences.
109 Whilst the plaintiff sought to dispute the employment records from both Mazda and TK Maxx there is nothing to suggest that the documents produced from her former employers were inaccurate or in any way corrupted. In relation to her employment with TK Maxx, the pay records are consistent with the income that she declared in her tax returns. Whilst in re-examination she sought to highlight inconsistencies in the rosters that appeared to have her working during COVID, her own evidence was that during COVID she was getting paid but was not working. Her evidence was that they rostered people, but they were not physically working.[69] In relation to her evidence that she had nasal surgery at the end of 2021 and it was likely that she was not working because of her recovery, I do not accept this. Her evidence was that the surgery was either in September or October 2021, or at the end of 2020. The Austin Health Admission Summary dated 30 April 2021 notes the rhinoplasty took place 4 months prior.[70] She also gave a history to Dr Neill of undergoing a rhinoplasty in October 2020. Based on the documentary evidence it is likely that the nasal surgery took place in late 2020 and did not impact her work at TK Maxx in late 2021.
[69] T134 L28-29
[70] DCB 151
110 I also find that it was likely that the plaintiff was aware that she was attending her general practitioner and obtaining certificates certifying her as having no work capacity when she was in fact working at TK Maxx. Her insistence that every time she told the doctor she was not working, she was not actually working, is not plausible. Cross-referencing the TAC certificates of capacity along with the TK Maxx records confirms that there were significant periods for which the plaintiff was working whilst in receipt of benefits. When signing the TAC certificate of capacity declaration, it is clear that the certificate covers a period for which she is to receive benefits and she was not truthful in her evidence when she insisted that when she was consulting her general practitioner, she was telling him she wasn’t working. This is in conflict with the documentary evidence, and I accept the accuracy of the documentary evidence.
111 Whilst the defendant urged me to make a finding that the plaintiff acted fraudulently in obtaining TAC payments whilst working, for the purposes of determining the serious injury application, I am not required to make such a finding. Rather I find that the plaintiff was not a truthful witness which bears upon whether or not I can accept her evidence in relation to the claimed consequences.
112 I also do not accept the plaintiff’s protestations that the TikToks were heavily edited and may have been compilations of activities she engaged in both before and after the accident. Having examined the three TikToks again, which admittedly are quite short, they stand in stark contrast to her presentation to doctors that she is beset with struggles every day, that she is in constant and unremitting neck pain, and she experiences headaches to the extent that much of her social activity has been curtailed. She agreed the first TikTok was taken in 2021, however her evidence was that the second and third TikToks were edited, containing clips from various times so that she could not be sure whether they were taken before after the accident. I reject the plaintiff’s evidence, and I am of the view she was not truthful when she gave that evidence. I note in the second TikTok, her hairstyle and gold neck chain are consistent despite her wardrobe changes. It was clearly taken on the same day although edited to highlight her wardrobe changes. Similarly in the third TikTok, she is wearing the same pearl choker throughout, her hairstyle is again the same and she moves through a number of wardrobe changes effortlessly. Again, from my viewing the two TikToks, they were recorded on the same day although edited to feature her various wardrobe changes. The social media posts on her Instagram also are in stark contrast to her presentation to the doctors. I do not accept the plaintiff’s submission that the plaintiff was attempting to put her best foot forward in the social media posts and they are not a reflection of her day-to-day life. Her reaction and her explanation when faced with the videos and photographs contained in her Instagram posts left me with the distinct impression that she was not being truthful about her level of activity. I had the opportunity of observing the plaintiff give her evidence and whilst she was described by her counsel as a young refugee with a traumatic background doing her to best to give honest and frank evidence and that she was nervous and unfamiliar court setting, that was not the impression she gave me. Rather she was articulate, at times answered questions in a considered manner and at other times provided unresponsive answers in order to attempt to advocate the narrative that she was in significant pain.
113 Throughout her evidence the plaintiff complained of severe and wide-ranging consequences that were inconsistent with the medical findings and her observed functioning. She repeatedly described herself in her oral evidence as “broken” and deposed that her dreams were shattered and that she felt broken. However, the plaintiff returned to and has maintained regular employment since commencing in her current position. Moreover, she is earning significantly more in her current position than what she was earning before her injury. Her return to regular employment in my view is a strong indicator of her functional capacity. Her ability to work full-time undermines her assertion of ongoing debilitating pain. The position is contrasted to that of the plaintiff in the decision of Demmler v Transport Accident Commission. I note that Mr Chehata found that the plaintiff was not incapacitated for work.
114 The plaintiff has ceased treatment and other than infrequent physiotherapy and attendances on Dr Toosi, there is little in the way of active treatment. This is not consistent with her suffering the serious and debilitating injury she claims to. Her minimal pursuit of treatment further undermines her account as do the lack of contemporaneous complaints in the Austin Hospital records and to the gastroenterologist.
115 I do not attach much weight to the affidavit evidence of the plaintiff’s sister. Her evidence needs to be considered in the context of the findings I have made in relation to the plaintiff’s credit. Moreover, the sister sought to advocate the plaintiff’s narrative of chronic persistent pain.
116 I accept that the plaintiff’s credit was successfully undermined by the defendant’s attack. The plaintiff’s affidavit evidence was not truthful in relation to her return to work following the injury. Her oral evidence was marked by frequent memory lapses and repeated assertions that she could not recall matters which were plainly significant and in my view within her expected knowledge. She frequently gave non-responsive answers which sought to advance the narrative that she was significantly disabled and that her life had been devastated by the injuries.
117 Therefore, I cannot accept her subjective complaints of impairment consequences in the context of minimal pathology. I am of the view that she was shown to be a deliberately unreliable and untruthful witness and that she sought to exaggerate the extent of the injury. I do not accept the plaintiff’s submission that the plaintiff was doing her best when giving evidence. As I do not accept the plaintiff’s evidence, the opinions of the medico-legal examiners in relation to the claimed consequences are also unreliable.
118 Turning to the psychological aspect of the plaintiff’s claim, the plaintiff relies primarily on the report from Dr Toosi. However, Dr Toosi’s report lacks clarity and provides no coherent diagnosis. Rather his report is written in a manner seeking to excuse or rationalise the plaintiff’s conduct on social media rather than addressing her psychological condition in any clinically meaningful way. I also note that Dr Toosi is not based in Australia but registered in Iran conducting his sessions online. Therefore, the weight that I can give to his report is limited. Although both Dr Ingram and Dr Neill arrive at different diagnoses, neither have diagnosed a psychiatric condition of any great severity. There is no opinion from Ms Deljo, psychologist to whom she was referred for her anxiety disorder and marital issues prior to the accident. Ms Deljo also saw the plaintiff following the accident and would have been best placed to provide opinion as to impact of the accident on the plaintiff’s pre-existing anxiety condition. This is a telling omission There is no evidence the plaintiff took or is taking psychotropic medication, hospitalisation or intensive psychiatric treatment. The plaintiff has held regular employment which is inconsistent with the picture of severe psychiatric dysfunction that she portrays. In addition, Dr Ingram observed that there were real prospects for improvement with appropriate treatment. This in my view is indicative of a psychiatric condition that is not stable further precluding a finding of serious injury under subparagraph (c).
Conclusion
119 For the reasons outlined, the plaintiff has not established a serious injury under either subparagraph (a) or sub paragraph (c) of the Act. I dismiss the application. I will hear argument with respect to costs.
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