Kassionis v Cara Inc

[2022] VCC 2000

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No.  CI-21-02803

ANASTASIA KASSIONIS	Plaintiff
v
CARA INC	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	25 and 26 May 2022
DATE OF JUDGMENT:	24 August 2022
CASE MAY BE CITED AS:	Kassionis v Cara Inc & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 2000

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – impairment of the spine – pain and suffering – aggravation – credit – range

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)

Cases Cited:              Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Petkovski v Galletti [1994] 1 VR 436; Hooley v Transport Accident Commission [2019] VSCA 263; Glover v State of Victoria [1998] VSCA 93

Judgment:                  Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W R Middleton QC with Ms D Costaras	Robinson Gill
For the Defendants	Ms S Manova	Russell Kennedy

HER HONOUR:

1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of her employment with MacKillop Family Services Limited (formerly Cara Inc) (“the employer”) on 14 August 2016 (“the said date”).

2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.  At the commencement of the hearing, counsel for the plaintiff advised the loss of earning capacity application was not being pursued.[1]

[1]Transcript (“T”) 2

3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:

“(a)permanent serious impairment or loss of a body function.”

4The body function relied upon in this application is the spine. 

5In closing addresses, counsel for the plaintiff withdrew an application pursuant to sub-section (c) for a psychiatric impairment.[2]  During the hearing, the plaintiff was cross-examined at length about her psychiatric condition before and after the said date.  While the sub-section (c) application was withdrawn, the plaintiff’s psychiatric condition is still relevant to my ultimate determination for reasons discussed below.

[2]T163

6Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

7The impairment of the body function must be permanent.

8The plaintiff bears an overall burden of proof upon the balance of probabilities.

9By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.

10Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.

11I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

12I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[3] Haden Engineering Pty Ltd v McKinnon[4] and Petkovski v Galletti[5] in reaching my conclusions.

[3] (2005) 14 VR 622

[4](2010) 31 VR 1

[5][1994] 1 VR 436

13The plaintiff relied on two affidavits and was cross-examined.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

14From the defendants’ perspective, the plaintiff’s credit was a significant issue, with it being submitted medical opinion supportive of her application was largely based on inaccurate histories.[6] 

[6]Dordev v Cowan & Ors [2006] VSCA 254

15Further, the principles in Petkovski v Galletti[7] apply, as the plaintiff had a pre-existing spinal condition.  Range was also in issue,[8] as was the role played by the plaintiff’s psychiatric condition in her ceasing work and her current presentation.[9]

[7]          Supra

[8]T90

[9]T21

16While it was anticipated that there would be a widespread attack on the plaintiff and her credit, counsel for the plaintiff submitted the medical evidence, particularly the opinion of Mr D’Urso, supported a serious impairment[10] and that the consequences of the spinal impairment from the assault were serious.[11]

[10]T20

[11]T19

The Plaintiff’s evidence

17The plaintiff is presently aged fifty, having been born in April 1971.  After having completed high school, she worked in hospitality and then worked as a flight attendant for seven years. 

18She commenced university as a mature age student in 2009, completing a three-year Bachelor of Social Science, specialising in counselling, at the Australian College of Applied Psychology in 2013.  Her first job after qualifying was Youth Support at Anglicare Burwood.[12] 

[12]T26

19In about 2013, she started work with the employer as a casual youth worker.  The following year, she worked for Essendon Psychiatric Hospital as a group therapist.  In 2015, she started casual work with Optum, providing telephone counselling for clients on the Employee Assistance Program (“EAP”).

20Her work at Optum was seated at a desk wearing a headphone, logging details of telephone calls into a computer eight hours a day with three breaks.  She was not required to be seated for the entire shift, being able to sit, stand and walk around.[13]

[13]T46

21Prior to the said date, she worked about two to three times a week with the employer, mainly on the night sleepover or weekend shifts, earning $930 gross per week.  She also worked about thirty hours a week at Optum, earning $1,140 gross per week.

Medical condition before the assault

22The plaintiff deposed she had a transport accident on 7 May 1996 (“the 1996 accident”), after which she had whiplash, a fractured finger and bruising to her left hip and calf.  After the 1996 accident, she experienced pain in her neck, right shoulder and lower back, for which she received chiropractic, osteopathy and physiotherapy, funded by the TAC.

23She also deposed, prior to the said date, she recovered from those injuries, except for some ongoing strain in the neck, which flared up at times and caused discomfort.  At those times, she had massage and osteopathic treatment.  Despite this, she engaged in all the usual activities.  She was physically strong, did heavy workouts at the gym, had excellent fitness, and did swimming and yoga.[14]

[14]January 2021 affidavit

24The plaintiff was cross-examined about her attendances at Modern Medical Centre (“Modern”) after the 1996 accident. 

25While she agreed that on 5 March 2013, she complained of pain into her neck and right shoulder since the 1996 accident and that she had had pain for many years,  to what degree and what level, “that was another matter”.  She would not dispute then reporting tenderness in her neck and trapezius area ++.[15]   

[15]T36

26While a Modern’ note on 2 April 2013 mentioned a referral for physiotherapy, the plaintiff could not recall if this was the case.[16]  She was not sure how she was then feeling, it was quite a long time ago.[17] 

[16]T37

[17]T38

27Although the note on 5 February 2014 read:

“‘Previous neck injury due to motor vehicle accident.  Tried chiro, physio, osteopath, looking for a new osteopath Recommend Dean Holzer’”

she could not remember seeing any practitioner other than Dean Holzer, but would not dispute the note.[18] 

[18]T38

28When taken to Dr Tan’s 28 May 2014 note which mentioned the 1996 accident, and also “whiplash injury and subsequent ongoing neck pain.  Current flare-up with marked spasm.  Restricted range of movement+ + and pain radiating down arms”, she did not recall complaining of bilateral arm pain, but she accepted the accuracy of the note.  The pain was “predominantly always” in the right arm, but she denied that had been the case since the 1996 accident.[19]  She had to think when it was, but knew it was not in 1996.  It was a fair few years later, “quite a few, actually, from memory”.  She agreed by certainly 2014, according to the notes, pain down her right arm was a problem.  Before the said date, it was not as bad, nor as frequent, but it was present.[20]

[19]T39

[20]T40

Dean Holzer’s notes

29Dean Holzer noted, on 17 February 2014, “‘[V]ery sore chronic neck pain since MVA.  Patient also gets headache … Pain, neck tight and tense, chronic.’”[21]  It was possible the plaintiff was getting headaches at that time, but she could not remember whether she had had them since soon after the 1996 accident.[22]  She did have pain in both shoulders.[23]

[21]T41

[22]T41

[23]T42

30That note also read: “‘[W]oke up with very stiff neck for three months … and since then patient wakes up with acute cervical spinal pain and several times per year’”.  She would say that the underlying pain had always been there to some extent, so she had always had a level of pain.[24]  It was possible she was waking up with very bad pain but she did not know if it was “a couple or several times a year”.[25] 

[24]T42

[25]T43

31She agreed that she was seeing Mr Holzer about once a month from 2014 and, at times, had seen him more frequently.[26]  Sometimes, her neck pain improved and sometimes it was intense.  She was still seeing him in the several months leading up to the said date.[27]

[26]T43

[27]T44

32On 2 May 2016, Mr Holzer noted “a lot of emotional distress at the moment, intense right cervical spinal pain”.  The plaintiff recalled experiencing some stressful moments then.  She denied that she was having emotional distress as a result of the intensity of her neck pain.  She believed there were matters with family and health and wellness and her distress around that aggravated her physical condition.  Emotional distress, which was highlighted by Mr Holzer, had actually been a large contributing factor to her pain.  She was feeling pain and having personal distress at home.[28]

[28]T45

33On 20 June 2016, she attended Mr Holzer, needing some maintenance of her neck.  He did a lot of massage, which was very therapeutic for her.  She definitely needed to maintain some kind of regular treatment.  However, relative to her lifestyle activities, she was pursuing whatever she wanted.[29]

[29]T45

Pre-incident psychological condition

34Before the said date, the plaintiff attended a psychologist for counselling for depression.  She had been on antidepressants briefly on two prior occasions but chose not to continue on them.  She was managing and having a full life, and had not required any significant periods of time off work for mental health issues.[30]

[30]January 2021 affidavit

35By December 2009, she had seen psychologist, Michael O’Neill, a couple of times.  She did not dispute his observation that at the time she was single, isolated and unemployed, and very flat in her mood.  She could not work out why he mentioned her not being able to work for six to twelve months because she was then studying part time.[31] 

[31]T27

36As at 2009, she agreed that she was quite depressed and had been for a long time, but would not say she had a long history of depression, “although there might be waves of different periods that might be more challenging”.[32]

[32]T25

37She certainly recalled having depression but not anxiety, as Mr O’Neill mentioned in his November 2010 report.  She was seeing him regularly for psychological counselling but did not remember health issues which were compounding her emotional instability.  She agreed that she was struggling emotionally and then had some issues with her father being unwell.[33]

[33]T26

38She could recall having an ongoing therapeutic relationship with Mr O’Neill over 2010 to 2013.  One of the main reasons she was seeing him in 2014 was for relationship difficulties.  She was seeing him through a mental healthcare plan with Dr Tan, which she possibly would have had to renew.[34] 

[34]T28

39When shown Dr Tan’s 22 April 2016 note, sixteen weeks before the said date, which referred to a mental healthcare plan, she recalled experiencing a variety of stressors relating to her brother’s mental illness and issues working at Optum.[35]  

[35]T29

40She agreed that she was finding it hard to get up in the morning and feeling under stress at that stage.  A mental healthcare plan was also noted on 4 July and 25 July 2016.  She did not dispute that she needed a plan at the time, suggested by Dr Tan and Mr O’Neill.[36]

[36]T32

41She disagreed that it could be assumed that, even if the assault had not happened, she would have continued to see Mr O’Neill for many years.  She agreed that she intended, three weeks before the assault, to continue seeing him, and that she has continued to see him since.[37]

[37]T33

Medical evidence

Treaters pre assault 

Psychologist, Michael O’Neill[38]

[38]Reports dated 12 December 2009, 15 October and 22 November 2010, 18 June 2014 and 27 May 2016 were relied on by the defendants

42The plaintiff was originally referred to Mr O’Neill by Dr Bongiorno in December 2009, and he saw him twice that month.  The matters raised by Dr Bongiorno in the referral letter to Mr O’Neill were put to the plaintiff in cross-examination.[39]

[39]Judgment at paragraph 35 

43In a “To Whom it May Concern” letter of 15 October 2010, Mr O’Neill provided a letter for the plaintiff, advising that her requirement to care full time for her father, who had had major heart surgery, would prevent her from studies for the rest of the year, and he supported her fee refund application.

44He also wrote a “To Whom it May Concern” letter of 22 November 2010, which was put to the plaintiff in cross-examination.[40]

[40]Judgment at paragraph 37

45On 18 June 2014, Mr O’Neill saw the plaintiff again when she was having troubles with her boyfriend.  This was in the context of a ten-session treatment plan under a general practitioner mental healthcare plan.  He noted she would like to continue with counselling, and he had asked her to renew her mental healthcare plan as she had now had six sessions.

46Mr O’Neill wrote to Dr Chong at Modern in May 2016, noting the plaintiff had recently been seen six times following referral.  He advised that the plaintiff had been feeling worried and unhappy for some years and he had seen her for ongoing support.  He noted that she would like to continue with counselling, and he had asked for an extension for a further six sessions of her plan.

Osteopath, Dean Holzer

47Both parties relied on parts of Mr Holzer’s notes.  The TAC has been funding these appointments since the 1996 accident.

48Counsel for the defendants cross-examined the plaintiff on a number of these entries. 

49Counsel for the plaintiff relied on a number of 2016 entries before the said date:  30 May, “not as bad as previous”,  20 June, “needed maintenance”, “been feeling quite ok overall” and 8 July, “been quite ok”.

50Earlier, in May 2014, Mr Holzer also reported the plaintiff was “continuing with upper body gym work - all going quite well.  Neck feels a little out of alignment at present.”[41]

[41]That month, Dr Tan found marked spasm on examination  

Investigations

51Following a plain x‑ray of the cervical spine on 19 March 2013, it was reported flexion and extension views showed no instability.  There was mild to moderately severe disc degeneration present at C5‑6.  Other discs were well preserved.  There was no focal bone lesion or cervical rib, and the neural exit foramina were adequate.

Work with the employer

52The plaintiff commenced work with the employer as a residential care youth worker in April 2013.  She worked at a house in Syndal (“the house”), with clients aged between thirteen and sixteen[42] who had a history of mental health issues, drug and alcohol abuse and trauma.  The work supporting vulnerable young people was important to her. 

[42]There were usually four residents but on the said date, there were two

53On the said date, the plaintiff was assaulted by a large, 15-year-old client who abused her and assaulted her while trying to take her mobile phone from her (“the assault”). 

54An ambulance attended the house and transported the plaintiff to Box Hill Hospital Emergency.  She remained in hospital overnight.  She was then having severe chest pain and struggling to breathe. 

55The ambulance report read:

“AV called to alleged assault of 45 yo female- at workplace where she was allegedly beaten by a female client who was reportedly drug affected as per other workers on scene.  Alleged assailant had left the scene prior to AV arrival and police were present before crew arrived.  Pt sustained injuries to head, face, finger and chest- haematoma to R) occipital region, scratch just to the right of her right eye, bite to left thumb with a very small break in the skin and blunt trauma to the sternum with no obvious bruising or deformity.  Pain in sternum main concern in regards to injuries for pt but also concerned regarding the skin breaks and possible transmission from alleged as[s]ailant.”[43]

[43]Ambulance Patient Care record dated 14 August 2016

56The plaintiff sustained injuries including multiple bruises and abrasions to her sternum, right temple, jaw and right shoulder.  Parts of her hair were ripped out.  She was tender over the right side of her neck and movement was limited.  She had chest pain for a number of months following the assault.  She also experienced significant levels of anxiety and treatment in the months thereafter.

57She attended her GP, Dr Tan, who prescribed Tramadol and Temazepam 10 milligrams to help her sleep.  She had spinal investigations including an MRI scan in July 2017. 

58She continued psychotherapy with Mr O’Neill, osteopathy with Mr Holder, chiropractic treatment, remedial massage and acupuncture.  She struggled to afford treatment and did the best she could to manage pain by doing home exercises, taking Nurofen and using heat packs. 

Pain and suffering consequences

59The assault was both physically and psychologically traumatic. 

60As at January 2021,[44] the plaintiff had been suffering persistent neck pain since the assault which was significantly worse than it was prior thereto.  It was constant, sharp and intense, like someone was drilling into her neck.  It extended into her right shoulder, and when bad, radiated to the right forearm with pins and needles. 

[44]January 2021 affidavit

61Her neck pain was getting progressively worse.  When it was aggravated, the only thing she could do was try and lie in one position to get comfortable.  She would lie down because it felt like her head weighed too much for her neck to support.  Typically, the first two or three days were extremely painful, and it would be difficult to do anything, and she then took more Nurofen, but it upset her stomach.

62The neck pain gave her a headache two or three times a week, that felt like a migraine.  She would then become very sensitive to light and sound, and needed to lie down in a quiet and unlit environment, take Nurofen, and go to bed.

63She continues to suffer constant neck pain, the levels of which vary.  When it is severe, it radiates into her right shoulder, right arm and hand.  She also experiences pain radiating into her right ribcage and down the right side of her lower back.

64Neck pain gives her intense migraines, and, at times, she takes the maximum dose of Nurofen and lies down in a quiet, unlit environment.

65The injury impacts on the use of her dominant right side.

66She experiences flare ups from time to time and suffers severe neck pains.  Flare ups can happen for a number of reasons, whether physical or emotional.  She might have slept in the wrong position, she might have been doing too much physically, or experiencing a lot of stress.

67During a flare up, she takes the maximum dose of Nurofen for a day to try and get on top of it, but the medication upsets her stomach, so she avoids taking it as much as she can.

68She had a recent flare up of severe pain when it travelled down the right side of her body from her neck to her lower back, and she also had headaches.  She increased her medication intake, stayed at home and avoided her usual yoga and stretching exercises, as she was in too much pain.

69Her concentration levels are impacted, depending on the severity of the neck pain and headaches. 

Restrictions  

70As at January 2021, sometimes, when she woke in the morning, her pain was very bad, and she could not move her neck, sometimes for a week.

71She struggled with prolonged or repetitive flexion and neck extension, and her range of movement had decreased.  She had problems sitting at the computer for long periods as it put pressure on her neck.  She was right-hand dominant and had to be careful how she used her right arm because of the radiating pain.  She was now constrained by physical limitations she had not had before, being unable to repetitively lift things above shoulder and chest height, struggling to lift anything greater than 5 kilograms.

72Many times she has experienced having virtually a stiff neck where she has to move her entire body to turn around.  This can go on for weeks and it can resolve in a few days.  It varies.  It is quite unpredictable.  Her neck was generally stiffer than normal people.  She struggled to sit down at a computer for long periods. 

73Her neck condition has been fairly similar in the eighteen months since her first affidavit. 

Sleep

74Her sleep continues to be disturbed by the assault, and if she has a memory of it, she has nightmares and difficulty sleeping, and sometimes wakes up with a sudden onset of chest tightness, anxiety and pain.  Her sleep is also impacted by her neck pain.

Gym

75As at January 2021, she still went to the gym sometimes but nowhere near as much as previously.  She had to modify what she did and now only lifted “baby weights” a beginner would use.  She also had to stop certain exercises which put pressure on her neck or shoulder as, if she exercised too much, her pain was aggravated and she had to be careful how much exercise, movement and lifting she did.

76She previously enjoyed jogging, but if she now tried to jog, the impact of her feet hitting the concrete was not any good for her neck and aggravated her pain, so she no longer went running. 

77Not being able to exercise how she used to was very difficult for her, as it was something she was doing her whole life.  She used to go the gym four or five days a week and had very good strength and fitness.

78She used to be physically strong, lifting heavy weights at the gym and doing intense yoga sessions.  She is no longer able to undertake those activities in the same way .  She has lost her strength.  She is no longer able to go running.[45]

[45]May 2022 affidavit

79Her neck limitations prevent her from being fit and also from being happy.[46]  She is no longer able to be physically strong doing gym and other activities that she used to do.[47]

[46]T61

[47]T62

80She used to go to the gym five days a week, sometimes six days a week, from the age of nineteen.  She was yoga instructor and aerobics instructor and used to dance.  She was very active on those levels and can no longer be as active.  She still participates in some exercises at the gym when she can.  She certainly does a lot of stretching at home, but not at her previous capacity, and she feels like her body lacks the strength that she used to have.[48]

[48]T62

81At the time of the assault, she was a financial member of Muscle and Body Shape in Richmond, which she thought had closed down at the start of the pandemic.[49] 

[49]T62

82She denied that she is still a member of a gym, but then accepted that she was told by Snap Fitness that it would not let her attend because she was unvaccinated.  She agreed that the only reason she stopped gym for a significant period then was because of restrictions on unvaccinated people.[50]

[50]T63

83Before the assault, she went to the gym a minimum of five times a week, doing two to three-hour sessions, lifting weights, yoga and running on a treadmill.  She lifted weights she would consider were too heavy for her now, and she could push 150 kilograms with her legs.[51]  Since going back to the gym in non-lockdown, she was probably going maybe twice a week.  She does not run at all.  The weights she can lift are significantly reduced.  She has had to modify every position.[52]

[51]T144

[52]T145

Dance 

84She used to perform dance a long time ago.  Before the assault, she went out and danced with friends and family, but also danced at home for her own personal enjoyment.  Dancing was like breathing to her, but she was limited with the dancing she could do and found if she did anything with a lot of movement with her head or neck, it aggravated her neck pain for the next two days.[53]

[53]January 2021 affidavit

85She would not say that she could not dance at all, but she certainly could not dance like she used to – in terms of just the overall movement.  Dancing was something that she had enjoyed from when she was a child.  Her ability to move her neck does vary – “It’s just not the case every single day”.  She then confirmed, as she had sworn, that every single day she is in constant pain, and it feels like someone is drilling into her neck.[54] 

[54]T67

86A YouTube video of the plaintiff dancing to David Bowie’s “Let’s Dance” was shown.  She uploaded it on 23 October 2016.  She did not recall the exact date when she was dancing, but she knew it was before the assault.  She uploaded it then because “… [she] was wanting to engage in something for … [herself] creatively … otherwise in order to find some kind of normality back into … [her] own life.  … [She] really didn’t have a very clear objective with what [she] was going to do with that YouTube channel, it was more of a pastime hobby or an experimentation,” so she uploaded two dance videos.  She “suppose[d]” the other film would be shown.[55]

[55]T69

87She uploaded the film because she “was very much into health and fitness, physically and … [was] very interested in mental health and part of … [her] connecting with other people … [was] sharing different, what … [she] would consider to be inspirational things”.[56] 

[56]T69

88YouTube is public and open to anyone.  She posted the film because she liked to see herself dance.  She was able to say it was filmed before the assault “because … [she] knew it was”. There was not necessarily anything in particular that she could point to, to confirm when it was filmed.[57]

[57]T70

89She did not post it just after she filmed it as there were many videos that she did not post.  She had no intention of posting it when she was making it – “Part of dancing and expressing that creative form is also learning, so by being able to see … [herself] back in terms of a video, … [she] can actually critique and correct … [herself] with learning dance, so the original objective wasn’t, had nothing to do with posting … [her] videos, however, subsequently … [she] decided to post a couple of videos.”[58]

[58]T71

90She denied that she was making up the reason for uploading the video as she was going along.[59]  According to her memory, it was one of several videos she had recorded before the assault.[60]

[59]T71

[60]T72

91She could not produce the film on her phone because her phone had very limited memory, and there was hardly anything on it.  She did not keep these things on her phone.  She had some dance videos on an external hard drive at home somewhere, but she did not know if this dance film would be on there.[61]

[61]T72

92The next You Tube film shown was of the plaintiff dancing to “Papa – Just for my papa my heart and soul”. This film was certainly dedicated to her father because that was his song and her song.  She seemed to agree that it was posted after her father’s death in April 2017.  When asked “Did you post that video in tribute to your father who had died in the month or two previous to the video?”, she replied:  “It was certainly dedicated to my father because that’s his song and my song.”  She then denied that, by that comment, she agreed that she did that dance after her father’s death in April 2017.[62]   

[62]T73

93She uploaded the film on YouTube on 10 June 2017 because she had found herself in a situation where she was not able to work like she was previously, and she was just trying to find something to make her feel better – feel a bit happier – keep her occupied in some way.  She agreed, however, that she was then still working at the call centre when she uploaded the film.[63]

[63]T74

94A lot of the dancing shown in the film is not something she could do now.  She can move in just a basic, fairly loose, sort of manner.  She is not suggesting she cannot move, and she is paralysed.  She might make a certain neck movement and basically she will be suffering for a minimum of four days after.  So she has just had to pull back on the type of movements that she might do if she dances.[64]

[64]T75

Yoga

95She does stretching and uses heat packs daily.  She has yoga props set up on the floor and, if having a flare up, sometimes she uses those to lie in a position that supports her back and neck to try and find some relief. 

96It is possible that she told Dr Weissman earlier this year that she was doing gentle yoga at home and told Dr Wyatt that she had always done yoga.  In comparison to what she used to do, she would consider it to be very gentle.  Gentle yoga does not mean that you have no strength at all, or you cannot do it for periods of time.  She agreed that advanced yoga involved poses that required incredible strength and agility.[65]

[65]T64

97The defendants’ court book contained numerous photographs of the plaintiff which she had posted on her Facebook. 

98When asked to explain what seemed to be a number of poses adopted by her in the photographs which showed no significant neck problem, she initially explained she had been practising yoga for many years and was probably at an intermediate level for a long time.  She has never claimed that she cannot do yoga or anything at all.  In certain photographs she appears to be doing a particular asana, but that does not mean she is not having pain as a result.  She tries to push herself as much as she can.  That is the sort of person she has been for most of her life.  She did not want to just give up and do nothing for herself, so she was still trying.[66]

[66]T77

99On 22 March 2021, the plaintiff posted two photographs taken by her at Snap Fitness South Yarra of her sitting on a gym mat in poses.[67]  In one photograph, she was sitting on a mat, taking a photograph with her left hand, with her right arm holding up her right leg.  In the other, she was bending from the waist, reaching to the floor with her right hand and taking a photograph of herself using her left hand.  She did not recall when these photographs were taken but she did not necessarily post things soon after she had taken photographs.  She accepted the photographs were taken sometime last year.  She photographed herself in these positions, which caused her pain, because she had always taken photographs of herself and had thousands of photographs.[68]

[67]DCB 169 and 170

[68]T77

100A photograph of the plaintiff on a yoga mat with her head facing downwards and both arms extended to the floor and one leg raised behind her was posted on 1 October 2021.[69]  She disagreed that the photograph was taken sometime around then.  It was a few years ago, “quite a few years ago”.[70]  She believed it was before the assault.[71]

[69]DCB 175

[70]T77

[71]T78

101She agreed that she had dug out from the archives a photograph taken five or six years earlier and then posted it.  That was something she frequently does and has been doing for a lot of years.  It is not an unusual thing for her at all.  She would not necessarily post something new because she likes to post whatever she wants.  They are her photographs.[72]

[72]T79

102She could not recall when a photograph of her taken in a park, kneeling on the ground, supporting her body weight on her left arm with her right leg extended upwards, posted 1 October 2021,[73] was taken.  She could not agree that it was taken recently, as she could not remember.  She has thousands of photographs and cannot remember the context of every one of them.[74]

[73]DCB 176

[74]T79

103A photograph of the plaintiff in the kitchen at Burke Road[75] was posted on 6 November 2021.[76]  It showed her leaning forward on the kitchen sink with both arms extended, supporting her, with her right leg in the air behind her.  She was wearing very high stilettos, a bikini top and bikini pants. 

[75]DCB 185

[76]T79

104She had moved to Burke Road in 2010-2011 and moved out two weeks before the hearing.  The photograph could have been taken at any time.  She set up a record function on her phone and photographed herself.  She posted it on Facebook because it was something she liked to do, and she had always taken photographs.  She was not shy of sharing her body in the context of photographs.[77]

[77]T80

105If it was found she set up and took this photograph after the assault, she did so because:

“Well, I’ve had pain for a very long time, as we’ve touched on, Your Honour, and, again, … other than saying that I enjoy taking photos of myself and sharing them for the purposes of feeling good about myself, possibly inspiring other people, other than that, there’s not much more I can say.”[78]

[78]T81

106She did not concede, although she could not remember when the photograph was taken, that it was taken after the assault.[79]

[79]A similar explanation regrading DCB 187 and 188 – poses at home on the yoga mat supporting her body weight with leg in the air

107Another pose, when seated on a yoga mat posted on 24 November 2021 with the post “preparing … as the morning star in January 2022”, was also an old photograph.[80] 

[80]DCB 191

108A photograph of the plaintiff seated smiling in a car posted on 6 December 2021 could have been taken before the assault or more recently.[81]  A photograph of her having a relaxing drink near the beach was taken after the assault.  She could remember that clearly as she was with a friend whom she had not seen for a while.[82]  The plaintiff was shown[83] enjoying the beach, crouched down in her bikini.  She liked to enjoy herself at the beach.[84]

[81]T83, DCB 193

[82]DCB 194

[83]DCB 195

[84]T83

109She agreed photographs she posted of her and her friend just before Christmas in 2021 were taken around the time she posted them.[85]

[85]T84

110A photograph of the plaintiff standing on one leg leaning on the wall and holding her left leg posted on 7 January this year was taken at Burke Road before the assault,[86] as was a photograph posted on 17 February of her with her head on the floor, supported by her elbows with her left leg fully extended and her right leg bent.[87] 

[86]DCB 206

[87]DCB 211; T86

111She disagreed that a photograph of her standing on one leg stretching with a band attached to her left leg posted on 25 February 2019 was posted around the time that it was taken.[88] 

[88]Defendants’ Supplementary Court Book

112On a number of occasions, the plaintiff was photographed wearing a pair of roller skates.  She just had them on for the photographs.  She had tried roller skating but not with any success, so she had just taken a couple of pictures of herself wearing the roller skates at home.  Perhaps a year ago she had last tried using them.[89]

[89]T87

Psychiatric

113As at January 2021, her symptoms of anxiety and depression had significantly worsened, and at times, she felt helpless and suicidal and did not want to be here anymore.  She felt depressed most of the time, and often felt teary, unmotivated, her energy was low, and she had difficulty concentrating, and was forgetful.  Since the assault, she had lost self-esteem and confidence, and her ability to function socially and at work. 

114The assault continues to impact her life and she is deeply impacted by it.  The trauma cannot be erased.  The resident could have killed her.  She has frequent thoughts and flashbacks to the assault.

115She continues to feel depressed, unmotivated, low and flat, and is often teary.  Her energy levels remain low and there are days she feels like she does not want to do anything, and sometimes feels hopeless.  She does not feel like going out and socialising or being around people.

116She is afraid of being hurt again, especially when she leaves the house, and she is hypervigilant and very aware of her surroundings.  If she feels threatened, she experiences flashbacks to the incident, still avoids crowds, and is paranoid in public and social situations.

117Before the assault, she did not hesitate to leave the house and be social, nor did she hesitate to go to work for an employer or a big organisation.  She used to trust employers and others to keep her safe, but that trust is gone.

118She used to be confident and socially active and was more fearless and enthusiastic.  If she had a difficult moment, she felt she could pick herself up and get on with her life.  She was more optimistic, positive and felt safe within herself.  She felt violated by the assault and her confidence, and that feeling of safety had been destroyed, and she had lost her freedom.

119She was frightened of being hurt again, and constantly felt tense and anxious, and in the months after the assault, had frequent panic attacks, which she still had sometimes.  She now had to live with fear and anxiety every day. 

120She avoided crowds when out and was paranoid in public and in social situations.  She was not comfortable being cornered and needed to know she had an exit or could move out of a situation and was always aware of her environment.

121It depends on the circumstances whether she would avoid a crowd.  It depended on who she was with, but she does not naturally feel comfortable in a big crowd.[90]

[90]T97

122She denied that she had gone to numerous crowded protests over the last couple of years throughout the pandemic and posted pictures of crowds on her Facebook page.  She went to one protest in the city – a photograph she took of the crowd on the steps of Parliament House in November 2021 was shown in court.[91]

[91]DCB 189

123She did not go to the city for this big protest.  She happened to be in the city with her friend who was in the other recent photographs.  It was not her objective to go to the protest.  “Well it wasn’t a protest.  It was just people standing there at that point.”  She did take the photograph.[92]  She did happen to be in the city when there was this particular crowd of people there.[93]

[92]T98

[93]T99

124Since the assault, she had come across old clients on the tram, and became so scared she feared for her life, had shortness of breath, palpations and a sense of tightness in the chest. 

125Despite the passing of time, she still feels sick with fear on trams, as many of her previous clients used to hang around the tramline near her house, and she is scared of meeting them.

126She avoids tram travel as much as she can.  As she recently deposed, she had lost her freedom, and her confidence and feeling of safety had been destroyed.  It is not just being housebound, it is how she feels internally.  She is nowhere near as socially active and engaging with people and so forth.  She does not even avoid socialising; she just stays home most of the time.[94]

[94]T89

Surveillance summary

127The YouTube films of the plaintiff posted on 23 October 2016 (“Let’s Dance” – 1 minute 27 seconds) and later, on 10 June 2017 (“Just for my papa, my heart and soul”- 3 minutes 31 seconds), showed her dancing, swaying and rotating her body freely with no apparent restriction. 

128On 22 April 2022, at 9.47am, the plaintiff was shown briefly on her balcony at her Burke Road property.

129On 29 April 2022, at 11.56am, she was shown sitting at a tram stop, chatting on her phone for about 15 minutes.  She might have been going food shopping.[95]  She did not say that she never caught trams.  She did not accept she was able to move her neck very freely to look for cars when crossing the road.[96]  On some occasions, it would be absolutely obvious to outsiders, and on others it would not, that she was having problems.  She did not know what one might think of the film.[97]

[95]T91

[96]T92

[97]T93

130At 1.35pm, she was filmed at home, shaking out a blanket out over the balcony.  She thought “most definitely” there was a sign of pain and restriction.  This task was very difficult for her and she was shaking it to the best of her capabilities, but it actually caused her great discomfort.  She cannot speak for what other people would think about whether she had pain or not.[98]

[98]T93

131On 1 May 2022, at 8.53am, she was shown on the way to a café.  When she got there, she hugged some workers at the café.  She had no problem hugging them or being friendly to them as she had known them for years.[99]

[99]T96

132She denied that she was shown in the film walking briskly, and thought there was a problem with the speed of the film at that stage.[100] 

[100]T96

133Later that day, at 1.51pm, she was shown chatting to a removalist outside her property.  She did not think that she moved her neck in any significant way.[101] 

[101]T97

134At 4.18pm, she was shown carrying a basket into her new property, helped by a friend.

135In my view, the plaintiff was not shown doing anything on these short films that showed a significant level of neck movement or anything inconsistent with her evidence of her level of restriction.[102]  Further, there was no obvious restriction of neck movement shown on the film. 

[102]T95

Social life 

136The plaintiff used to be socially active and went out on weekends with family and friends, but she did not do so anymore. 

137She used to enjoy travel.  After the assault, she went to India on a pre-arranged trip to do her yoga teaching training.  She ended up not being able to do part of the course because of her injuries and was no longer able to travel the way she used to.

138As at January 2021, she was in a position where she dealt with chronic pain and had to manage it as best she could, but her life had changed completely as a result, a situation which caused her significant distress.

139Day-to-day activities continue to be adversely affected.[103]

[103]      May 2022 affidavit

Work after the assault 

140She was no longer able to work.  Youth work was an area of work she felt was important and she had lost that career path.[104]

[104]      January 2021 affidavit

141She returned to work as a telephone counsellor at Optum about three to four weeks after the assault as she did not want the assault to ruin her life and she wanted to maintain a sense of normality.

142In March 2017, she returned to work for the employer at another location – the mother baby unit- as part of a graduated return to work plan.[105]  She managed to work there three four to six-hour shifts over three weeks.  She became concerned when asked to increase her hours as she did not feel psychologically ready to do so.  She expressed concerns about her mental health when recommendations were made to increase to an eight-hour shift at the weekend.  While Dr Tan reported the plaintiff was concerned about not being able to cope mentally with work, she also expressed concerns with her physical health.[106]

[105]T47

[106]T48

143She agreed, as Dr Tan also noted, that, coincidentally, she had no capacity to continue working with the employer because of the death of her father on 23 April 2017. 

144She believed she had some time off following her father’s death, but continued at Optum, ultimately resigning in March 2018.  At some stage in 2017, she was working 30 hours a week at Optum.  She did not know when she actually stopped but thought that it was close to the time she resigned.[107]

[107]T49

145As a casual at Optum, she was able to choose her hours and take days off or go home early if she felt she was not coping.  However, this job was very difficult, and she struggled daily with anxiety listening to other people’s distress. 

146At times, working at Optum, she had to work with clients who had been assaulted, and that only made her more anxious and low, to the point once she went to her GP feeling suicidal.  At times, she also had to deal with aggressive clients which would significantly exacerbate her symptoms of anxiety that would make her tense up and aggravate her neck pain, and there were times her anxiety was so bad she needed to take days off, whereas before the assault, she could manage these clients.

147She stayed with Optum as long as she could.  She had no other source of income but ultimately the anxiety was overwhelming, and she could not work anymore, and resigned in March 2018.  On reflection, it was amazing she stayed there as long as she could, because of the way she was feeling.  Prior to the assault, she would have coped with these issues and would not have had to leave her job.[108]

[108]January 2021 affidavit

148She was not feeling that she could continue with the specific role at Optum due to the nature of her anxiety and distress and neck pain.  She just felt that she needed to actually resign.  She disagreed that it was not really her neck that stopped her working at Optum.  She confirmed it was her anxiety, distress and neck pain that caused her to stop work altogether in March 2018.[109]

[109]T50

149She has not been able to work since.  She now earned no income, and was therefore experiencing a 40 per cent loss of income and believed this would be permanent.[110]

[110]January 2021 affidavit

150She agreed in her first affidavit she deposed she was no longer able to work, and she confirmed the correctness of her affidavits during the hearing.  She then confirmed it was absolutely true that she was unable to work in the industry she was working to the extent that she was.  When it was pointed out to her that she had not made that qualification in her affidavits, she said:  “Well I have just replied, I’ve just responded”.  It was correct at the time she wrote it.  That was how she expressed and articulated it.[111]

[111]T100

151She agreed that she had not gone further in her affidavits, saying that she could do other jobs.  She denied this was the case because she wanted the reader to believe that she was no longer capable of doing any work.[112]

[112]T101

152She did not recall telling Dr Krapivensky in May last year that she had not engaged in any work since Optum; however, she was not engaged in any of her counselling work.  She had not been employed by anybody.  She had done some astrological sittings with individuals.  She did not mention that in her affidavit because it was not relevant.  She agreed that until the day before the hearing, she was making a claim for loss of earning capacity.[113]

[113]T102

153She has never claimed that she does not, cannot or will not ever work.  She has been very clear about not being able to return to her actual profession and industry.[114]

[114]T103

Astrology

154She is interested in astrology and spends time researching.  She records videos from home which she posts on YouTube.  This is an activity which she enjoys and is important to her, but she is so frustrated by her inability to perform activities which she previously undertook with ease.[115]

[115]May 2022 affidavit

155In her various YouTube videos, she talks about various subjects relating to astrology and then sitting with people and looking at their astrological birth chart and having a chat with them.  Someone approaches her and wants her to sit with them.  That could be once a fortnight or once a week – it varied.[116]

[116]T103

156She did not recall doing readings before the assault, but she had been doing them on and off.[117]

[117]      T104

157In response to the question “Could you have a PayPal set up for payments of that (readings) from the clients?”, she replied:  “I had PayPal set up to also pay bills and buy whatever I wanted to buy … .”  She agreed she had a PayPal account set up where clients would pay her.  She thought she set it up a few years ago.[118] 

[118]T103

158She denied she had earned income in the period 2018 to 2021 – it was donation based, depending on the generosity of people.  It was possible that in the last couple of years she had received more than $5,000 but not more than $10,000 in total in the year.[119] 

[119]T104

159Her bank statement from October 2019 to April 2020 showed credits of $49,181 including a number of payments from PayPal.  She agreed on many occasions, these were payments from clients but not necessarily one transaction from PayPal to her bank account – “that could be numerous payments on numerous monies”.[120] 

[120]T105

160When asked, what other sources of credits to her could be processed through PayPal, she replied – “Just the donational money”.  She confirmed there was nothing else that came through to her as a credit through PayPal.[121]

[121]T105

161Given the plaintiff’s apparent failure to declare “donations” in her taxation returns, there was a discussion with the plaintiff’s counsel as to whether a s128 certificate was being sought.  The following day, a certificate was granted under s128 – in respect of the plaintiff’s evidence in relation to her earnings and Centrelink payments from 2017.[122]

[122]T108

162The plaintiff did not think she filed taxation returns for 2019 and 2020 because she was not working.[123]

[123]T108

163PayPal payments in 2019 and 2020 were “donational money” which she agreed was for astrological readings.  She had a client relationship with various people who made donations.  She did not consider that to be work or earnings.[124]

[124]T109

164She agreed she received regular payments into her bank account from clients using the PayPal account system.  She could not recall also receiving direct bank account transfers into her account.[125]  She probably got direct payments from clients a couple of times, but not too many, in the period from 2018 to date.  She did not get cash payments from anyone.[126]

[125]T109

[126]T110

165She was talking astrology with people online, not face to face.[127]  It is probable that her YouTube page has almost a million views and over 10,000 subscribers.  She disagreed she had posted over 300 videos about astrological matters.[128]

[127]T110

[128]T111

166She agreed she received a very small sum every couple of months from Google.  She guessed she benefited when people watched her YouTube videos.[129] 

[129]T111

167She has received Centrelink and JobSeeker payments regularly since she stopped work for Optum.[130]  She accepted that in the last financial year, she received about $22,000 from Centrelink.[131] 

[130]T111

[131]T112

168When taken to the Commonwealth Bank statement 166 – 26 October 2020 to 25 April 2021 – which showed total PayPal receipts were $11,925, she explained those figures do not necessarily reflect the money she might have been donated.  What it reflected were those transfers that she made during the period.[132]

[132]T114

169Having been reminded, the previous day, the only thing she said was coming through PayPal were donations, she said:

“No.  Your Honour, I tried to explain yesterday that I use PayPal for multiple purposes including paying my bills, buying items.”[133]

[133]T114

170Basically, PayPal is used for multiple purposes including paying bills and buying items online, so she always had money in that account.[134]  She transfers money in and out of her PayPal and Commonwealth Bank accounts because sometimes she might need to have more money in PayPal for certain bills, and sometimes she needs money in her Commonwealth Bank account, from which she pays her rent out of.  It is not an unusual thing to have two accounts and use it for multiple purposes, which is what she was doing.[135]

[134]T114

[135]T115

171In her statement 166 for January 2021, a direct credit into her account from PayPal on 5 January for $500 was not necessarily payment for astrological services.  It was a reflection of transfer of money from PayPal to her Commonwealth account. 

172The credit entry of $300 on 8 January 2021 via PayPal was a transfer from one account to another.  She denied a third PayPal direct credit of $472 was a payment for astrological services, it was a transaction from PayPal to her Commonwealth account.[136]  The entire figure cannot be identified as a donation.  What is clear is that she had transferred the money to herself.[137] 

[136]T121

[137]T122

173A direct credit to her of $3,000 “might have [been] somebody help[ing] … [her] out”.  She might have been in a position of need.  But she could not actually remember who it was from.  She has help from certain people in her life.[138] 

[138]T122

174Having been shown those PayPal entries, she did not concede that these entries were income and therefore her January 2021 affidavit was false.[139]

[139]T123

175Her PayPal account was closed down in April 2022.  She has not been able to access her records, as it will not let her log in.[140]

[140]T142

176In 2020, she took $20,000 from HESTA, her superannuation, because she did not have any savings and needed to support herself during the pandemic.[141]

[141]T147

Various posts regarding daily activities

177She agreed she posted on 15 March 2019:

“My days consist of approx 90 percent focus most of the time- Fortunately i LOVE my work sharing the sacred knowledge of Astrol Yoga & dance are my other passions and incredibly powerful for healing and releasing.  It is always worth exploring what allows you to feel free.”[142]

[142]Defendants’ Supplementary Court Book page 4 – post attached to photograph of the plaintiff balancing her body on her hands with her legs in a v shape

178She posts things to inspire people, and so if that means inspiring or encouraging people to maintain fitness physically or otherwise, then she will create sentences that reflect it.[143]

[143]T88

179She gets a lot of enjoyment out of social media, which is why she is particularly active on it.  There is a sense of connecting with people, with a particular community, sharing photographs and ideas, and it is something that she feels is very therapeutic for her, and fulfilling to some degree, so she enjoys it very much.  She has been on Facebook since it started.[144]

[144]T144

180In a May 2020 – Mod snap app post – Mod snap, “Dj Nocturna speaks with Esoteric & Cosmic Astrologer Anastasia”, the plaintiff stated she was –

“… incredibly busy actually working with clients to be quite honest, that’s all I’ve been doing.  And I was doing it virtually seven days a week and I found myself feeling slightly exhausted so I decided that I will give myself the weekends off and only worked five days a week, but people can find me through my YouTube channel, which is Anastasia Cosmic, Astrologer.”[145] 

[145]T116; DCB 165

181She explained that even though she described what she was doing as working, it was not employment.  She used the word “work” because:

“… in the context of speaking to another person who’s asking me some questions around how people might be able to contact me, there wasn’t many other words that I could think of other than ‘correct’.”[146]

[146]T116

182Describing herself as a professional counsellor and professional astrologer means that she has studied and is able to practise with the knowledge that she has studied in.  She was doing it on a “donational” basis, and it is not her career yet.[147]  The payments do not necessarily reflect that the money was made in twelve months.  It just reflects that they were transferred, that is all.[148]

[147]T117

[148]T118

183While she deposed in January 2021 that she had no income and could no longer work, she then said that she could no longer work in her field.  By “work” she was referring to her professional field in counselling.[149]

[149]T119

184It was true, as she described herself in her LinkedIn profile, that she is a self-employed, a professional counsellor, who has experience in mental health and working with youth.  She created a mental health program when she was working in a psychiatric facility at Essendon Private Hospital as a group therapist.  In eight months, in a period prior to the assault, she created a program.[150]  She posed the question:

“… how can you lose your professionality whether you’re employed or unemployed?  You can’t lose your professionality based on whether you are working or not.  … .”[151]

[150]T124

[151]T125

185When she described herself as self-employed for nine years and five months: “It’s  just a way of writing something to fill in the gap of when [she] wasn’t employed.”[152] While her LinkedIn profile described her as “mental health clinician/counsellor December 2018 to present, two years six months”, that was not a lie.  She is still a counsellor.  She is just not employed as one.[153]

[152]T125

[153]T126

186She denied she had done any counselling since 2018, despite the LinkedIn website references to life coaching, astrology lessons, spiritual counselling and mental health services.[154]

[154]T132

187She had done readings before the assault.  She tried to create a website on her own, after she stopped working for Optum, but she was not really sure of the date, but it was somewhere around that period, after the assault.  She was exploring options for herself, knowing she could never go back to her career.  That website was probably deactivated a couple of years ago.[155]  She disagreed that she had deactivated it after she brought these proceedings.  She thought she had approached her solicitors, Robinson Gill, fairly early on.[156]  However, the website has never been utilised.[157]

“… through speaking on YouTube with the knowledge or teachings or whatever you want to call it that I have with this particular wisdom , that generated an interest of people wanting to approach me, talk to me, send me emails, ask me questions, it’s just kind of evolved from there.”[158] 

[155]T128

[156]T129

[157]T130

[158]T132

188The level of the donation depends on what the person wants to look at with her, what they want to talk about, how much time they want to spend with her, and then on how much they want to donate.[159]

[159]T132

189She did a workshop in May but has not done classes.[160]  She agreed, although not 300”, over time, she put up many videos in which she was talking about astrology.  They mostly ranged between 20 to 60 minutes and there were five videos that might go for an-hour-and-a-half or two hours.[161] 

[160]T135

[161]      T136

190When it was suggested work in astrology had always been a real and true passion for a long time, she said “the wisdom of astrology” would always be her true passion, “absolutely”.  It was not true that she had wanted to work for herself in that field since June 2015 at least, as Dr Holzer then noted.[162] 

[162]T137

191Immediately before the assault, she loved youth work.[163]  It was possible she mentioned to Mr Holzer in June 2015 that she wanted to practise in astrology.[164] 

[163]T141

[164]T142 – Mr Holzer noted on 25 June 2015 – “Pt has a new job in Essendon part time- 3 days a week.  Pt plans to commence her own business.

192She disagreed that residential youth work was only ever a minor part of her work history because her main job was telephone counselling.  She was working as a youth counsellor for seven years, and that was not a minor part of her life or a minor part of her professional time.[165]

[165]T138

193She agreed she now could probably do a few hours of telephone counselling.  She agreed her current lifestyle revolves around astrology, study, readings, YouTube, social media, yoga and fitness.  Of course she looks after herself.  “Who else is going to do it for me?”[166]

[166]T138

194While she posted cooking recipes, she was not suggesting she could not cook at all, but there had been many times where she had had support from family to do cooking and shopping.[167]

[167]T139

195As part of her Centrelink requirements she is undertaking job-seeking.  She has applied for jobs in counselling positions.  She had stayed away from all youth type of work, seeking predominantly to hopefully get a telephone counselling position, because nowadays she could actually get that work from home.  It appealed to her because she felt very safe working at home.[168]

[168]T139

196She could not now do her old Optum job sitting down for eight-hour periods, even with breaks.  Sitting beyond an-hour-and-a-half to two hours would be very challenging for her.  She can sit up for that amount of time, but not comfortably.  Lack of movement with just sitting in the one position affects her neck.  She had been standing the whole morning giving evidence because she felt comfortable in that position.[169]

[169]T58

197She agreed in her astrological videos she was filmed sitting at a desk or at a table.  When it was suggested she was not standing up, looking down at the computer, as she did throughout the Zoom hearing, her response was – “Well, why is that a problem for me standing up right now?”[170]

[170]T136

198If it was not for the assault, she would be still working for the employer and Optum.  Having been injured has had an enormous impact on why she is not working in the industry any more.  She cannot sit down for long periods and cannot focus for eight hours.  It is extremely demanding work.  Her neck pain is chronic.  It is there all the time.  She feels it every single day, and it has had a significant impact.  It has interrupted her career.[171]

[171]T146

Current treatment

199She remains with Dr Tan, and has continuing osteopathy with Mr Holzer fortnightly.  This is a significant expense, and only partly covered by the TAC.  She would like to attend more but cannot not afford to.

200Osteopathy is the primary treatment, not the only one, for her neck.  The TAC is sent the bills and pays a portion, and she pays $50.[172]  She agreed that the TAC was paying because the treatment was due to the 1996 accident; “that’s what I would have said at the beginning certainly… However, that hasn’t remained what my life has become moving forward, so Dean is aware of the further injuries that I have sustained et cetera.”[173]

[172]T52

[173]T51

201She sought payment for osteopathic treatment from WorkSafe but did not get anywhere, and she thought they had rejected it.[174]

[174]T142

202She did not think she had had any treatment by an orthopaedic surgeon or a neurosurgeon for her neck.  She has not had any treatment from a pain specialist or had an epidural or a steroid injection or been sent for pain management.[175]

[175]T52

203She regularly saw Mr O’Neill for counselling sessions until the onset of the Pandemic.  It was possible that she had only seen him twice since February 2019, but she was not able to have contact because of the pandemic.  She can initiate a visit “on an as needs” basis, as he is open to working with her if she feels the need.[176]  They did not have any Telehealth appointments during COVID, and she did not know whether he offered them.  She did not see any other counsellor if he was unable to see her.  She disagreed that the frequency of counselling with Mr O’Neill over the last three years was much less than in the twelve months before the assault.[177]

[176]T34

[177]T35

204She has never been sent to a psychiatrist for treatment or been admitted as an inpatient for mental health issues.[178]

[178]T36

205Antidepressants have been offered to her on numerous occasions and she turned them down.  She continues to take 10 milligrams of Temazepam to help her sleep.

206She continues to do the best she can to manage the pain by home exercises, taking Voltaren and Nurofen, taking hot showers and using heat packs, and has tried a number of different anti-inflammatories.

207She cannot remember what is actually being prescribed for pain.  She thought it started with “T”.  That was not the only thing she took in terms of painkillers.[179]  She has prescribed painkillers that she tries desperately to stay away from, because she feels like her brain gets scrambled for a few days after using them.  She generally tries to stick to very milder things, such as Nurofen tablets, and also anti-inflammatory Nurofen liquids, massage, heat packs and therapeutic treatment she can do herself.[180]

[179]T52

[180]T53

208While she desperately tries to stay away from painkillers, it does not mean that she has not actually taken them.  The side effects are quite severe, and she does take them on an “as needs” basis.  She probably last took a painkiller a week ago.  She thought it was Temazepam.[181]  It does assist her sleep, but it is considered a painkiller.  She struggles with sleep a lot.  Nurofen tablets are not on an “as needs” basis.  They are virtually daily.  She certainly takes two a day, and sometimes up to six.  She takes two at a time, and that has been the case for as long as she can remember.[182]

[181]T53

[182]T54

209The “T” medication she was referring to would be Tramadol, and she last took it a week ago, having taken two tablets.[183]

[183]T146

210She had recently told Dr Manolopoulos that she had used a brace in the first three years after the assault because her head felt weighty and heavy.  The brace just supported the weight of her head and kept her neck in a less vulnerable sort of position.  If she needs to, she uses it.  She could not explain why she had not mentioned the brace to any other doctor.[184]

[184]T65

Medical evidence – post assault

Dr Tan, general practitioner

211Dr Tan, from Modern in Balwyn, reported to the plaintiff’s lawyers in November 2018.

212He noted the plaintiff had a history of longstanding issues with neck pain, anxiety and depression prior to consulting him in relation to her WorkCover injuries.  Since then, her anxiety and neck pain had escalated.  Moreover, her father’s unexpected death in hospital had affected her recovery process.

213He then thought the prognosis was guarded, given the circumstances and the plaintiff’s personal view on treatments that had been recommended – preferring not to pursue physiotherapy because she was not able to cope with all her appointments and, instead, was having massage and acupuncture.

214In January 2018, the plaintiff advised him that she was unlikely to recover from her work-related psychological injuries.

215In summary, Dr Tan thought the plaintiff had endured both physical and psychological trauma from the assault.  Her prognosis was guarded, given the circumstances.[185]

[185]      Dr Tan’s report of February 2018 to the Accident Compensation Conciliation Service (“the         ACCS”) was in slightly different terms but addressed the same issues

Mr O’Neill, psychologist 

216On 28 November 2016, Mr O’Neill wrote to Dr Hewage at Modern advising that he had seen the plaintiff after the assault when she was very shaken from the unprovoked nature of the attack in which she received various injuries, and described a range of psychological symptoms. 

217He then thought that she was not fit for a return to normal duties where the assault took place.  He had counselled her on how to manage her distress, noting that she was an enthusiastic and active participant, and that she was to continue counselling on a weekly basis.

218Mr O’Neill provided a report to the ACCS in April 2018.

219Noting the assault, he advised that apart from physical injuries, the plaintiff had developed an acute stress disorder and had been unable to return to work at the care unit.

220He had spoken to the plaintiff prior to the assault about her employment.  She spoke generally well about working in the unit.  He thought there was a direct correlation between the assault and her psychological shock reaction, specifically describing ongoing anxiety related to the assault and other symptoms, which were especially evident in the first year and had eased somewhat after that time. 

221He thought her psychological condition was a direct result of the assault, and the evidence suggested that she would be unable to return to work in a residential care unit and would be unable to do so in the future.  However, she was of sound mind and able to work in a safe environment where there was no risk of attack.

222He noted the plaintiff described ongoing pains, specifically sore neck and back, noting her treatment in relation thereto.  She suffered from mild residual anxiety related to the assault and could well-use psychological support, suggesting a regime of monthly counselling for a year with later review.

223He noted that the plaintiff was keen to return to work, although the assault had reduced her options given that she could not return to work in a residential care setting.  He thought that she was capable of working in a safe environment where there was no risk of assault.  She detailed some lifting limitations which were mentioned in other medical reports.  She could well-use support with regard to employment options and perhaps further training.

224In his February 2019 report, he noted that before the assault, the plaintiff  appreciated her work with the employer and saw it as being important.

225He noted that the plaintiff was referred for psychological counselling in November 2009 by her doctor when she needed support with regard to study and her career path. 

226His notes indicated ongoing neck pain and three bulging discs in her neck.  The plaintiff detailed constant pain in her right arm and pain on lifting objects.

227As of May 2022, he advised that he had had no contact with the plaintiff since 2021, having seen her on 14 January and 4 March that year.

Investigations – post assault

228Following an MRI scan of the cervical spine in July 2017, it was reported there was mild cervical spondylosis with non-compressive disc bulges at C4‑5, C5‑6 and C6‑7, and no neural compression or spinal stenosis.

Medico-legal evidence – spine

Dr Catherine Bones, occupational physician

229Dr Bones first examined the plaintiff in December 2016 on behalf of CGU. 

230“Past medical history” included – “of relevance, the plaintiff experienced a whiplash injury to her cervical spine many years ago when involved in a motor vehicle accident.”

231On examination of the neck, the C6‑7 vertebra was prominent.  There was no central tenderness of the cervical spine.  There was a visible and palpable area of muscular spasm just above the superior border of the right scapular muscle.  There was marked tenderness and tightness in the right trapezius muscle.

232She thought the plaintiff had suffered bruising and muscular injury to the ribcage which had resolved, and exacerbation of pre-existing degenerative condition of the cervical spine.  The condition was an exacerbation of a pre-existing degenerative non-work-related condition secondary to an old whiplash injury.  The effects of the exacerbation had not ceased.    

233On re-examination of the cervical spine in May 2017, the plaintiff had obvious spasm and tightness in the trapezius muscle between the right side of the neck and the shoulder.  Examination was limited due to “the boundary issues and physically examining a woman in such severe stress”. 

234She then thought the plaintiff could do her pre-injury duties 16 hours per week on light duties.

235On re‑examination in September 2017, while there was restriction of movement and tenderness in the cervical spine.  Dr Bones made no mention of a finding of spasm.

236From a purely physical perspective, she thought the plaintiff had a current capacity for pre-injury duties and hours with the employer .  The main barrier to this was her psychological condition.

Associate Professor Anthony Buzzard, general surgeon

237When the plaintiff saw Associate Professor Buzzard in July 2019, he noted she had neck pain from a previous accident twenty years ago when she was a driver of a car which was hit on the front side.  She said she was looked after by multiple practitioners and osteopaths.  She had continuing neck trouble up to the date of the assault, but the injury from the assault was at least five times as bad. 

238Before the assault, the neck pain had occasionally gone down to the right arm, but the assault made the right arm involvement worse.  The neck and right arm pain problem was now variable.  Sometimes, the neck problem was such that when she woke she could not move her neck at all.

239On examination, the plaintiff moved around freely.  There was some restriction in neck and shoulder movement.  He could not detect any reflex or sensory abnormalities in the upper extremities.[186]

[186]There was no finding of muscle spasm

240He thought that the plaintiff was suffering from significant psychological problems outside his field of expertise.  He thought it was reasonable to accept the assault injury was an aggravation of pre-existing degenerative disease in the neck, noting the x-ray reports of March 2013.

241It would appear that prior to the assault, that the plaintiff not only had neck pain but some intermittent right arm symptoms, which suggested the possibility of nerve root involvement, but he could not find definitive evidence of that on clinical examination.

242From a purely physical perspective, he thought she would be capable of pre-injury employment, and a consultant psychiatrist may need to comment on employment capacity.

Mr Paul D’Urso, neurosurgeon

243Mr D’Urso examined the plaintiff at the request of her solicitors in April 2021. 

244She told him she was unable to work for about two months after the assault, and had not been the same since, and suffered from a variety of symptoms.  When she returned to work, she felt unsupported, nervous, and was quite anxious, and ceased employment in early 2017.  She continued to work for another employer for a period of time, but then ceased that employment in 2018 and had not worked since.

245The plaintiff reported widespread symptoms with chronic neck pain which she rated as 8.5 out of 10.  There was pain radiating into her right shoulder and right upper limb and hand which she rated at 8.5 out of 10.  She reported frontal headaches, two or three times a week, and had difficulty sleeping.

246On examination, movement of the cervical spine was restricted to 60 per cent of normal.

247Prior to her injury, the plaintiff stated she was able to sit for prolonged periods of time, go dancing, attend a gym and perform vigorous activities, and do yoga without restrictions.  She could no longer perform those activities as she once did because of ongoing disability and incapacity.

248It appeared the plaintiff was symptomatic from cervical spondylosis.  The assault  would appear to have aggravated the underlying degenerative condition of the cervical spine, and possibly contributed to a degree of disc prolapse at C4‑5, C5‑6 and C6‑7.

249It appeared that the physical assault precipitated the onset of symptoms.

250His only mention of neck issues pre assault was reference to the March 2013 x‑ray which suggested C5-6 spondylosis. 

251He thought the plaintiff would be prone to degenerative progression in the cervical spine.  It would appear that she already had a pre-existing degree of spondylosis, particularly at C5‑6 motion segment, with the disc bulging at C4‑5 and C6‑7.  There was likely to be a degree of degenerative progression and deterioration with time which could be difficult to determine and predict.

252The plaintiff required restrictions on her work, avoiding awkward or repetitive neck movements.  Light employment up to 20 hours a week would be possible.  An opportunity to increase hours and intensity of employment may be possible, depending on her progress.

253It would appear that the condition had a mild to moderate effect on the plaintiff’s social, domestic and recreational activities.  She would not have the capacity to perform arduous domestic cleaning or gardening.  He recommended a psychiatric assessment, given she would appear to have a significant Adjustment Disorder, anxiety and depression.

Dr Mary Wyatt, occupational physician

254Dr Wyatt examined the plaintiff on behalf of the defendants in February 2022.

255She noted the 1996 accident in which the plaintiff sustained a neck injury.  The plaintiff advised she had had a lot of massage and chiropractic treatment, osteopathy and physiotherapy, and the problem abated over time but did not completely resolve.  She would have intermittent neck soreness which would flare up from time to time, and she would have intermittent physiotherapy or osteopathy treatment.

256The plaintiff reported struggling to cope with the combination of her physical and mental health, and stopped the job at Optum, and had been off work ever since.

257She indicated her neck problem had worsened over time, rather than improved.

258The plaintiff described neck soreness, worse on the right.  She took Voltaren several times a week, and Tramadol infrequently.

259On video examination, the plaintiff demonstrated quite limited neck movement, indicating minor movements increased her neck pain.

260The plaintiff reported disturbed sleep.  Domestically, she did what she needed to when she felt up to it.  She was able to drive but found it difficult to turn her head to the right.  She thought it is an unsettled world and she did not feel confident to re‑engage.  Typically, she would spend time reading and would be at home the vast majority of the time and would go for a walk when she could.

261Self-evidently, there was a pre-existing neck problem.  Problems had begun decades ago, and the plaintiff indicated her problems became intermittent rather than continuous and she had treatment for flare-ups over the years.

262The plaintiff described a substantial assault, having been repeatedly kicked while her hair was being pulled, which resulted in a twisting injury to her neck.

263A July 2017 cervical spine scan showed cervical spondylosis, without evidence of nerve root compression, which was similar to earlier investigations from 2013 showing disc degenerative changes particularly at C5‑6.

264The assault had been a material contributing factor to the plaintiff’s neck problem and remained such.  She accepted the plaintiff’s history that her neck problem had become more troublesome and particularly more constant since the assault.

265The plaintiff’s normal job was essentially acting as a house parent.  Taking into account her overall presentation, Dr Wyatt did not think it would be sensible that she return to her normal job, and it was probably best that she continued with non-physical work.  The plaintiff was capable of doing counselling.  Working from home, there would be significant flexibility.  Working up to 30 hours a week would be a realistic objective.

266She noted the plaintiff had been active with developing and uploading YouTube material in an area of her interest.  That material indicated the plaintiff could provide a range of astrology readings that last for an hour, and there were  references to material being covered through classes.  It may be that that had become her focus.

Dr Anna Manolopoulos, orthopaedic surgeon

267Dr Manolopoulos saw the plaintiff on behalf of the defendants in April 2022.

268She noted the plaintiff had the 1996 accident where she had pain in her neck, right shoulder and lower back, and was treated with chiropractic, osteopathic and physiotherapy treatments.

269Before the assault, the plaintiff had recovered from her neck injury, other than ongoing symptoms in the neck which flared up at times.

270The plaintiff resigned from Optum in 2018 because work was aggravating her level of anxiety.

271The plaintiff used a brace in the first three years after the assault and used it very occasionally more recently.

272The plaintiff’s previous hobbies included yoga, running, roller skating, dancing and going to the gym.  She had not done any of these activities other than yoga, which she continued to do, although she modified the exercises to help with her pain.

273In terms of other employment, the plaintiff had done a minimal amount of private counselling from the home, but no other formal employment.

274On examination, the plaintiff had a reduced range of cervical motion.  Spasm was present in the paralumbar muscles and neck muscles.

275Dr Manolopoulos thought it reasonable the plaintiff would have had some pre-existing degeneration.  As there had been exacerbation as a result of the assault, work therefore was a materially contributing factor to the current condition.

276The aggravation and the duration was almost difficult and impossible to measure.  All that could be said was symptoms were not present prior to the assault, and now the plaintiff had the symptoms described.  Dr Manolopoulos felt work would continue to materially contribute to the plaintiff’s condition.

277The plaintiff had not been able to return to pre-injury duties and felt, from a physical and mental point of view, she was not able to.  From the physical point of view, Dr Manolopoulos thought working with youth and not being able to have an adequate range in the cervical spine as well as grip strength was probably preclusive.

278To return to a more suitable employment, it would be something in the counselling realm, perhaps adults and avoiding youth, but she did not think the plaintiff could do that full time, mainly because of her symptoms – anxiety behind the plaintiff’s presentation.

The Plaintiff’s medico-legal evidence – psychiatric

Dr Nicole Phillips, consultant psychiatrist

279Dr Phillips examined the plaintiff at the request of CGU in December 2016. 

280She thought the plaintiff fulfilled the DSM-5 diagnostic criteria or an Adjustment Disorder with Depressed and Anxious Mood and her symptoms also fulfilled the criteria for a relapse of her pre-existing depression and anxiety.  Her condition resulted from, and was materially contributed to by, the assault and also by her superimposed distress as she felt lack of support from WorkCover and the employer. 

281She thought the plaintiff appeared to have a capacity to work at least four days a week with another employer.

Dr Stephen Stern, psychiatrist

282Dr Stern examined the plaintiff in September 2019 on behalf of Allianz. 

283She told him she had last seen Mr O’Neill for relationship issues in 2014 which had resolved.

284He noted that the plaintiff stopped work because of her anxiety, and had not returned to work since.

285He thought the plaintiff was suffering from a Post-Traumatic Stress Disorder related to the assault.  Her condition was then stable.

Dr David Weissman, consultant psychiatrist

286Dr Weissman examined the plaintiff in June 2021 at the request of the plaintiff’s solicitors. 

287He thought she sustained and developed an acute Stress Disorder and an acute Adjustment Disorder following the assault.  She was still suffering from moderate classical and discernible chronic post-traumatic stress and anxiety symptoms and traumatisation features directly due to the assault.  There is some contribution due to her father’s death, with a mild unresolved grief reaction and bereavement process.

288He thought the plaintiff remained totally and permanently incapacitated for her pre-injury employment and also pre-injury duties.

289In his May 2022 supplementary report, Dr Weissman considered that any pre-existing depression, anxiety and traumatisation had fully remitted prior to the assault.  The content of the plaintiff’s depression, anxiety and traumatisation features related to the direct circumstances of the assault, as well as the physical consequences and sequalae of the assault.  The plaintiff continued to suffer from a chronic Post-Traumatic Stress and Anxiety Syndrome and a Chronic Adjustment Disorder.  She still had no work capacity.

The Defendants’ medico-legal evidence

Dr Rasanjali Ratnayake, consultant psychiatrist

290On 5 April 2017, Dr Ratnayake, examined the plaintiff on behalf of the employer.

291He reported that she should not return to work at the pre-injury workplace in two years because it could result in a recurrence or relapse of depression or anxiety. 

292He thought that the plaintiff’s capacity for work would have been more than her current capacity if her father’s death had not occurred.  It was possible that she would have gained a capacity for pre-injury hours and duties if not for his death.  It would have been possible for her to perform pre-injury duties and hours with an alternative employer had her father not died.

293He believed that the plaintiff would be highly likely to recover within four to six weeks if she accepted antidepressant medication.  It was likely that she would have recovered from the work-related Adjustment Disorder with Mixed Anxiety and Depressed Mood if her father had not died.

Dr Natalie Krapivensky, psychiatrist

294Dr Krapivensky saw the plaintiff in May 2021 on Zoom at the request of the defendants’ solicitors.

295Dr Krapivensky noted that when the Zoom session started, the plaintiff’s name came up as “Anastasia Zoe Astrologer”, and she asked her if she was working in that role, commenting on the interesting nature of such work.  The plaintiff told her that she was not doing any work in that capacity.  However, Dr Krapivensky noted that recent weekly YouTube videos revealed the plaintiff was very well groomed, articulate and well-spoken, talking about astrological matters.

296During the examination, the plaintiff advised that after stopping work with the employer after the assault, and subsequently stopping her second job at Optum, she had not engaged in any work.

297Noting the plaintiff’s past psychiatric history of depression, with Mr O’Neill recommending she not work for at least six months in 2010 (about which the plaintiff was not forthcoming), Dr Krapivensky concluded that the plaintiff had an underlying chronic and untreated mood disorder which possibly was exacerbated from a psychological perspective immediately after the assault, but there had been a more significant intervening factor of her father’s death in 2017, which the plaintiff did not want to discuss. 

298Dr Krapivensky was also somewhat troubled by the possibility of an inaccurate self-report to her regarding the plaintiff’s work as an astrologer and somewhat inconsistent presentation to her and during the YouTube recordings.

299She thought the plaintiff had a chronic pre-existing mood disorder, mostly likely dysthymia, untreated and unrelated to the assault.  It was possible that the assault aggravated that condition for a while, but it was very clear during the interview that the most significant events that affect the plaintiff were not related to work, besides some physical limitations allegedly imposed by a neck injury.  Even those were difficult to evaluate, given the plaintiff was guarded and somewhat inconsistent, as previously noted.

300From a psychiatric perspective, it would be unwise for the plaintiff to return to her pre-injury duties, given the viciousness of the assault, but she had a capacity, on psychiatric grounds, to return to suitable employment, initially part time and subsequently full time.

301Based on the examination, she thought that the plaintiff had the capacity to work as a counsellor in rehabilitation in the drug and alcohol area, and general counsellor, initially part time of twenty hours a week, gradually increasing to full-time hours over a period of three to four months.

Overview

302There is no issue that the plaintiff suffered an injury to her cervical spine and also a psychiatric injury in the assault.[187]

[187]Impairment benefit claim regarding the neck and psychiatric injury accepted by letter dated 20 September 2019

303In dispute, however, is the seriousness of any assault-related spinal impairment as at the date of hearing, taking into account the plaintiff’s pre-existing spinal issues, her credibility and any contribution by her psychiatric condition to her ceasing work and also her current presentation.

Credit

304As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[188]

“… 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.”

[188](Supra) at paragraph [12]

305Further, I am mindful of what was said by Chernov JA in Dordev v Cowan,[189] that in this type of case, a plaintiff’s credibility is relevant not only to whether her evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

[189](Supra) at paragraph [14]

306Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application, must be looked at in the light of my views as to her credit.

307Counsel for the defendants submitted credit is particularly relevant in this application where medical opinion is based on the plaintiff’s subjective complaints, particularly when she had significant pre-existing degeneration with subsequent radiology being essentially the same as her investigations before the assault.[190] 

[190]      T149

308It was submitted the plaintiff was not a credible witness.  She had been dishonest  deposing she had no income, describing the PayPal payments as donations and not disclosing what was clearly income to the ATO.[191]  She had also offered no explanation why she had shut down her PayPal account just before the hearing was about to commence.[192]

[191]T149

[192]T154

309Further, it was submitted the plaintiff’s evidence about PayPal was inconsistent in any event, having very clearly stated on the first day of the hearing that the only credits though PayPal were “donations” then, the following day, her evidence changed significantly, saying there were also other credits through PayPal.[193]

[193]      T150

310It was submitted the Court should have real doubts about anything the plaintiff says, “as those matters do not speak of someone who has given straightforward, honest evidence”.[194] 

[194]T150

311The plaintiff had not told any doctors about working as an astrologer.  While she mentioned her interest in astrology to Dr Krapivensky in May 2021, she said she was not doing any work in that capacity – which was clearly untrue.[195]

[195]T151

312It was submitted the plaintiff presented as flat and sullen and gave a history of keeping to herself when she was examined by some doctors, being in a lot of pain and very disabled – a situation at odds with her presentation on videos and in various photographs.[196]

[196]Dordev v Cowan & Ors (supra)

313Further, the plaintiff’s podcast spoke of working seven days a week.  Her loss of earning capacity claim was withdrawn the day before the hearing.  In those circumstances, it ought be found that she purposely decided to withhold this information because it was not helpful to her case.  All this material only came out through the defendants’ persistent requests for financial information.[197] 

[197]T152

314It was submitted the plaintiff’s evidence that she was no longer able to work was correct “at that time”[198] was clearly incorrect – given the bank statements.  She was a wholly unimpressive witness, and the “donation” explanation should be rejected.[199]   

[198]T100

[199]T153

315Further, the plaintiff’s explanation about when many of the posted photographs were taken was also unconvincing.  Initially, she said she had been practising yoga for many years and never claimed that she could not do it, and then went on to say that save for the two gym photographs, when she noticed the seriousness of the issue, most of the photographs were in fact taken before the assault.  That was just a convenient excuse to explain some pretty extraordinary yoga poses.  The true explanation was that she is an intermediate at yoga and can do it.[200]  Her evidence about the dance videos was also unconvincing.[201]

[200]T155

[201]T156

316It was submitted the social media posts and videos were extraordinary, and the Court should have doubt whether they were filmed before the assault as the plaintiff maintained.[202] 

[202]T151

317Whilst acknowledging there were issues as to the plaintiff’s credit, counsel for the plaintiff relied heavily on the medical evidence which was supportive of her application.[203] 

[203]T176

318Although the plaintiff’s failure to declare “donations” to the ATO might impact on the Court’s assessment of her as a witness of truth, it was submitted that evidence does not destroy her case in respect of pain and suffering.[204]  Further, it is not the issue whether the plaintiff is someone who posts on social media.[205]

[204]T168

[205]T169

Findings

319In my view, there were significant credit issues with the plaintiff.

320Her evidence of not working since leaving Optum simply was not true.  She is working and being paid for giving astrological readings, although she described these payments as donations.  These payments have not been declared to the ATO in circumstances where the plaintiff continues to receive unemployment Centrelink payments. 

321While the plaintiff suggested she had not been given a chance to explain the operation of her PayPal account, she did on two occasions on direct questioning advise the only source of credits to that account were “donations” made by clients for whom she had done readings.  She was also unable to explain the source of a payment of $3,000 to her account as recently as January 2021.    

322The plaintiff volunteered little detail of her extensive astrological activities to examiners.  Further, when questioned by Dr Krapivensky, who noticed the plaintiff’s title on YouTube, the plaintiff denied she was working in that role which was clearly untrue.

323The plaintiff’s evidence that she is not working is also totally at odds with her various posts describing her level of activity in a wide range of areas.  The posted material provides a picture of a very active, accomplished and competent woman, not someone who is almost housebound and restricted by significant neck pain as she has described.

324I do not accept that most of the photographs of the plaintiff shown in a range of very flexible poses were taken years ago and only posted recently.  There was nothing she could specifically identify as to how she could put a time on numerous photographs other than to say they were taken before the assault.  For example when asked how she knew the “Let’s Dance” film was taken before the assault, her answer was simply she knew it was. 

325In any event, the two photographs the plaintiff acknowledged were taken post assault show an extraordinary level of flexibility for a person with the neck restrictions she claims.  I do not accept these poses can be explained as stretching movements to relieve neck pain.  While they are her photographs to do what she wants with them, the plaintiff did not provide any clear explanation why she posted so many old photographs in more recent times.  For example I do not accept the photograph attached to a post on 24 November 2021, preparing for an event in January 2022, was taken before August 2016. 

326Further, I reject the plaintiff’s evidence of her fear of crowds following the assault.  I do not accept, given the plaintiff’s anti-vaccination stance, that her attendance in the CBD at a rally in November 2021 was a coincidence as she explained.

327I do not accept her evidence about her inability to attend the gym post assault as she ultimately accepted she was unable to attend the gym during the Pandemic as she refused to be vaccinated. 

Aggravation

328In this case, where there is a pre-existing neck condition, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the any additional impairment resulting from the assault is serious and permanent.

329In Petkovski v Galletti,[206] the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  …”

[206]      Supra

330Counsel for the defendants submitted the totality of the plaintiff’s evidence does not meet the serious injury threshold for any assault-related aggravation. 

331The plaintiff was having ongoing osteopathic treatment with Mr Holzer right up until the time of the assault.  She had longstanding neck pain over many years since 1996, with flare-ups from time to time that were very significant and caused her stress and the need for regular maintenance.  It was submitted this is still essentially the case now.[207]

[207]      T157

332Further, there was little difference between the March 2013 x-ray and the July 2017 MRI scan.  Both showed cervical spondylosis with some bulges.  There was no definite evidence of a disc prolapse caused in the assault.  Mr D’Urso thought it “possible” that the assault contributed to those bulges but put it no higher.[208]

[208]T157

333The doctors who, on the face of it, appear to support the plaintiff, have the wrong history of her pre and post-assault level of activity.  Dr Manolopoulos thought that the neck condition had resolved before the assault.[209] Dr Wyatt accepted the plaintiff’s history that her neck pain had become more troublesome and constant since the assault. 

[209]T158

334Counsel for the plaintiff submitted the medical evidence, in particular that of experts, support a pain and suffering certificate.  While there had been neck problems from 1996, the plaintiff had recovered from them, as she deposed, and could do her normal activities.[210] 

[210]T169

335Although Mr Holzer’s treatment was ongoing, there were records of improvement and, as at 18 July 2016, the plaintiff “had been quite okay”.  In those circumstances, one might understand why she would report to doctors that, at the time of the assault, she was travelling well in respect of her neck.[211]

[211]T170

336Before the assault, the last mention of a neck problem in Dr Tan’s notes was on 28 May 2014.  There was no suggestion that the plaintiff had been taking medication up to the time of the assault, but she had since.[212]

[212]T171

337It was submitted there was a change in the radiology from 2013 to 2017 with, at the earlier date, no evidence of involvement at C4-5 or C6-7, compared to the MRI scan in July 2017.[213]

[213]T177

Findings  

338In my view, as at the said date, the plaintiff was continuing to experience neck problems related to the 1996 accident. 

339Her neck issues were “longstanding”, as Dr Tan described in his November 2018 report, although his last note of neck pain was in 2014.

340Osteopathic treatment, funded by the TAC, was continuing on a regular basis.  As recently as 2 May 2016 – three months before the assault – Mr Holzer noted a lot of emotional stress which the plaintiff accepted was aggravating her neck pain at the time.  She was then feeling pain and having general distress at home.[214]

[214]T45

341Further, as Dr Tan recorded in April 2016, the plaintiff was finding it hard to get up in the morning and feeling under stress and she was still under a mental healthcare plan at the time of the assault, organised by Dr Tan and Mr O’Neill.   

342While Dr Bones and Ms Manolopoulos found spasm on examination after the assault, on 28 May 2014, Dr Tan had found “marked spasm” on examination. 

343Before the assault, the March 2013 x-ray suggested cervical spondylosis.  At its highest, Mr D’Urso thought the assault possibly contributed to a degree of disc degeneration at C4-5,C5-6 and C6-7.  Dr Wyatt thought the 2013 investigations were similar to the 2017 MRI.  Dr Bones was not provided with any diagnostic investigations, Dr Manolopoulos having been provided with reports of all investigations pre-existing degeneration of C5-6.  Ms Wyatt thought the 2013 and 2017 investigations were similar.   

Range

344Counsel for the defendants submitted that the consequences of any spinal impairment were really mild to moderate at best.  Relevantly, there was a lack of treatment and specialist referral sought by the plaintiff or deemed appropriate by her general practitioner.[215]

[215]T164

345The defendants did not say that the plaintiff does not have a neck problem, but it is one that has continued for many years and there has been no significant change, because if there had been, after the assault, the plaintiff would have sought specialist treatment or invasive therapy like an epidural or steroid injection.[216] 

[216]T165

346Ingestion of significant painkilling medication like Tramadol ought not be accepted, as the plaintiff could not even remember what the “T” medication was called, although she said she had taken it a week before the hearing.  She is taking the occasional Nurofen and that is likely to be no different to the situation before the assault.  Dr Manolopoulos is the only doctor she has told about the brace.[217]

[217]T166

347The plaintiff describes herself as an influencer and she is having a busy and full life.[218]  She is able to look after herself and has clearly not neglected her physical or mental health.  To the contrary, she is inspiring and helping others.  She admits that she can still dance, do yoga and go to the gym – albeit she says on a reduced basis.[219] 

[218]T168

[219]T166

348It was submitted the photographs should be accepted as having been taken as post-assault and reflective of her current capacity.  In any event, the plaintiff has admitted the yoga poses in the gym were after the assault.  The question was posed – “Why would you get yourself in a position as shown in the photographs if you are in so much pain?”[220]   

[220]T167

349While Dr Wyatt said it was sensible for the plaintiff not to return to hands-on work in residential care, in this particular case, and for this particular plaintiff, this is not a serious consequence. 

350Residential care was only a part-time aspect of her work at the time of the assault, and she was mainly a professional counsellor, working thirty hours a week.  She is now running her own successful business from home in a field that she has loved for many years.  She absolutely loves her current work.[221]She has spoken of having a passion for this work for many years.   

[221]      See paragraph 177 of my Judgment

351It was submitted it cannot be said that she has had a very significant loss because of a career change.  If anything, she seems to have benefitted from that, a situation she foreshadowed with Dr Holzer before the assault, about running her own business.[222]

[222]T161

352There was no corroborative evidence of the plaintiff’s love of working in residential care.[223] In any event, she left that work for both physical and mental reasons,[224]  and also the death of her father.[225]

[223]T161 – Mr O’Neill does mention it

[224]T162

[225]T163

353It was submitted the plaintiff retains a work capacity, as evidenced by her astrological readings, and she is also capable of working as a professional counsellor

354On the plaintiff’s behalf, in general terms, it was submitted the consequences of the assault aggravation were serious as she has maximum dosages on some occasions of over-the-counter medication.  She has attempted unsuccessfully to return to her career; she has attempted to go back to work.  Her leisure activities and activities of daily living have been affected, as she deposed.[226]

[226]Paragraphs 3, 9, 22 and 31-33 of the supplementary affidavit

355Leaving aside credit, which was obviously relevant, the objective findings of spasm, the first being Dr Catherine Bones on 2 October 2017 and Dr Manolopoulos in May 2022, together with the evidence of both Mr D’Urso and Dr Manolopoulos, would be sufficient for the plaintiff to succeed.[227]

[227]T185

356In terms of any lack of treatment, the plaintiff preferred to do her own.[228]  She  cannot be criticised for not seeing a surgeon because there is no suggestion of surgery.[229]  While she has largely preferred alternative medication, such as St John’s Wort, it was clear that she was also taking over-the-counter medication.[230]

[228]T178

[229]T183

[230]T172

357It was submitted that there was a loss of career which was a serious consequence.  The plaintiff commenced the resident care youth worker course in 2009.  The assault was violent.  It is a significant consequence that she has not been able to return to work and has been deprived of her vocation, which she could be doing in conjunction with astrology today.[231]

[231]T173; Haden Engineering (supra); Hooley v Transport Accident Commission [2019] VSCA 263; Glover v State of Victoria [1998] VSCA 93

Findings

358I do not accept the plaintiff continues to suffer constant pain every single day, with a feeling like someone is drilling into her neck as she described.  The level of flexion and extension shown in various photographs is inconsistent with her evidence of her significant level of disability and cannot be explained on a good day/bad day basis, as submitted by her counsel for the plaintiff. 

359In my view, many of the photographs were extraordinary and, as discussed earlier, I do not accept they were taken before the assault as the plaintiff maintained.[232]

[232]T180

360The plaintiff continues to engage in a wide range of physical activities including yoga and dance.  She maintains an exercise routine at home and has attended the gym at various times since the assault.  She has even tried roller skating a year ago – an activity which would be far beyond her claimed level of restriction and disability.

361The plaintiff continues to be extremely active on social media, describing her extensive astrological activities and her various beliefs.   

362There has been little change in the plaintiff’s treatment regime since the assault, with ongoing osteopathic treatment, largely funded by the TAC since the 1996 accident, and no specialist referral or suggestion of pain management.  Pain relief has largely been over-the-counter medication. 

363I do not accept that the plaintiff has lost her career as a result of any neck injury in the assault.

364She agreed, as Dr Tan reported, that she was unable to cope with her return to work with the employer after the assault due to problems coping mentally but also maintained it was because of her physical heath.  Her evidence was she left Optum due to neck pain and psychological issues. 

365The plaintiff retains a capacity for a wide range of jobs.  Her LinkedIn profile set out “life coaching, astrology lessons, spiritual counselling and mental health services”.  Her astrological readings and related activities are not only her love and passion but a source of income for her.  In her May 2020 interview, she stated she was “incredibly busy actually working with clients” and had to give herself weekends off and only work five days a week.

366I do accept as a number of examiners have opined that the plaintiff would be limited in her ability to do youth work where there was a risk of physical harm to her due to her mental state and to a lesser extent, any neck issues.  This type of work was not however her main employment at the time of the assault – then working more hours as a counsellor with Optum.   

367Much of the plaintiff’s current presentation has a psychological basis as a number of examiners have described.  Until last year, she was having regular counselling with Mr O’Neill. 

368Further, the plaintiff continues to complain of anxiety and depression which affects her daily activities including her ability to sleep and also socialise, describing herself in terms where she is almost housebound due to fear of further assault. 

369These psychological consequences must be ignored in determining the plaintiff’s application in relation to her spinal injury.[233]

[233]Section 325(2)(h) of the Act

370Taking into account all of the evidence, I am not satisfied that any aggravation of the plaintiff’s spinal condition as a result of the assault is “serious”.

371Accordingly, her application is dismissed.

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