Outerbridge v Victorian WorkCover Authority
[2025] VCC 484
•24 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-04015
| ANGELICA OUTERBRIDGE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 & 20 March 2025 | |
DATE OF JUDGMENT: | 24 April 2025 | |
CASE MAY BE CITED AS: | Outerbridge v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 484 | |
REASONS FOR JUDGMENT
---
Subject:SERIOUS INJURY APPLICATION
Catchwords: Workplace injury – credibility and reliability of witness – underlying degenerative changes which cause impairment consequences – loss of capacity – pain and suffering consequences do not meet the relevant threshold – earning capacity – supervening events
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Seckold v Transport Accident Commission [2025] VSCA 18; Arnotts Biscuits v Cakir [2007] VSCA 104; Acir v Frosster Pty Ltd [2009] VSC 454; Giankos v SPC Ardmona Operations Ltd [2011] 34 VR 120; De Bono v VWA [2019] VSCA 85; Juma v Kone Elevators [2024] VSCA 217; Richter v Driscoll [2016] VSCA 142
Judgment: Application dismissed
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC Mr S Mullaly | HCA Lawyers |
| For the Defendant | Mr R Paoletti | TG Legal Tech |
HIS HONOUR:
1It is accepted that Angelica Outerbridge sustained injury in the course of her employment with Temptation Bakeries. The issues in dispute in this case surround whether or not that injury has resulted in impairment consequences which satisfy both the pain and suffering and loss of earning capacity tests set out in the Workplace Injury Rehabilitation and Compensation Act 2013.
2The defendant’s primary position was that any workplace injury had in fact resolved, and the plaintiff now continues on with underlying degenerative changes which cause those impairment consequences which she complains of. Alternatively, the defendant submits, if the plaintiff has an extant workplace injury, then the impairment consequences of that injury are not serious, both in respect of her pain and suffering complaint, and her loss of earning capacity complaint. The defendant’s primary submission on this point is that the plaintiff’s evidence ought not be accepted as to her impairment consequences, as it was neither credible nor reliable. The credibility attack revolved around alleged inconsistencies between video surveillance and, in contrast, the plaintiff’s affidavit evidence, her various histories to doctors, her presentation in the witness box, and her answers in evidence.
3The plaintiff’s case, in contrast, was built in a much more compact manner. She claimed that even if her evidence were found unreliable, the overwhelming medical evidence supported an extant work injury which rendered her so incapacitated for work that she satisfied the 40 per cent loss of earning capacity test. In that way, she submitted, she satisfied both the loss of earning capacity and pain and suffering components of the serious injury test.[1]
[1]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170. For the criteria as to the loss of earning capacity required by the Act in detail please see De Bono v VWA [2019] VSCA 85
4For the reasons which follow, I find that the plaintiff has not suffered an injury that can be considered a serious injury in accordance with the Act. The plaintiff’s evidence was not reliable. After a consideration of all the evidence, her loss of capacity claim cannot be accepted and her pain and suffering consequences do not meet the relevant threshold.
Relevant background history
5The plaintiff was born in May 1988 in the Philippines. She completed Year 10 level schooling and then worked as a golf caddy for some period. In about 2009 she moved to Australia and began work as a fruit picker. This was only for a short period, and then she began employment at a retail store named Crazy Clark’s as well as working with Woolworths Group.[2] That work involved basic retail functions such as shelf stocking, merchandise presentation and cash sales. It involved customer service duties, cash handling and EFT operations and register balancing. After ceasing with Woolworths she began employment at Ingham Enterprises, a chicken egg production facility. It appears that she met her husband at this time.
[2]Defendant’s Court Book (“DCB”) 44
6I pause to note that in the financial year 2015/2016 her gross income was $47,073 ($905 per week and the 60% threshold figure is $543).
7In August 2017 the plaintiff began working with the defendant.[3] In this role she earned $768 gross per week. The job involved her working in an industrial bakery where she had duties involving lifting and carrying ingredients, mixing those ingredients, making assorted pastries and moving them by tray into ovens and then out onto cooling racks. At times she deposed to lifting 20kg weights in the course of these duties.
[3]Plaintiff’s Court Book (“PCB”) 5, Affidavit of Angelica Outerbridge dated 18 March 2024 at paragraph [7]
8In mid-2018 the plaintiff began experiencing lower back pain.[4] She had a few days off work. She was troubled by the back pain, and saw her treating doctor, who sent her for x‑rays.[5] She then returned to work on full-time duties. The x‑ray reported no abnormality. The plaintiff continued working normally until 24 April 2019. She deposed in the following terms in respect of the relevant incident:
“On 24 April 2019, it was a particularly busy day at work getting a lot of pies ready over the easter holiday period. I was lifting a tray of pastry dough off a shelving rack which I estimate would have weighed 20kg, when I suddenly felt significant lower back pain (‘the incident’). I immediately knew that something was wrong. I continued working until the end of the day despite my pain.”[6]
[4]PCB 5, Affidavit of Angelica Outerbridge dated 18 March 2024 at paragraph [9]; PCB 17, Affidavit of Jotham Outerbridge dated 17 March 2025 at paragraph [4]
[5]PCB 26; PCB 5, Affidavit of Angelica Outerbridge dated 18 March 2024 at paragraph [9]
[6]PCB 5, Affidavit of Angelica Outerbridge dated 18 March 2024 at paragraph [10]
9The plaintiff sought osteopathic treatment from Mr Czarnecki. She continued working full-time. On 15 May 2019 she went to see her general practitioner, Dr Owhadi.[7] He prescribed Lyrica and referred her for a CT scan. That scan demonstrated an L4-5 disc bulge with likely L5 transiting nerve impingement. At this point her treating doctor put her off work for about two months and referred her for physiotherapy. She commenced physiotherapy at Back In Motion and went onto a course of Mobic, a strong anti-inflammatory and pain-relieving medication.
[7]PCB 6, Affidavit of Angelica Outerbridge dated 18 March 2024 at paragraph [13]
10On 16 July 2019 she had an MRI scan of her lower back. This revealed degenerative changes with a bulge at the L4-5 level with L5 nerve impingement.[8] She attempted a return to work on lighter duties at that time.[9] She had chiropractic treatment to alleviate some of her back pain.
[8]PCB 28
[9]PCB 7, Affidavit of Angelica Outerbridge dated 18 March 2024 at paragraph [19]
11On 15 October 2019 she was examined by an occupational medico-legal physician for the defendant, Dr Barton. He considered that she had sustained a work injury which was resolving, and hoped that she would gradually return to full-duties work. At that time she was doing seven and a half hours per day, four days per week, of light work. That situation continued until about March 2020 when she resigned her employment in the face of being required to perform more physical duties.[10] An MRI on 14 July 2020 revealed an annular fissure at the L4-5 level but no compression. She was referred on by her treating doctor to Mr Muir, a pain specialist. He considered an epidural injection was warranted, and this was performed in December 2020. After some temporary relief, the plaintiff deposed that her pain returned.
[10]PCB 7, Affidavit of Angelica Outerbridge dated 18 March 2024 at paragraph [21]
12In January 2021 the plaintiff and her husband moved to Queensland. She attempted to return to work at her brother-in‑law’s factory doing light storehouse work, five hours per week. This involved lifting and packing small items. She deposed that the work was too difficult for her, and aggravated her pain. She ceased that work.[11]
[11] PCB 8, Affidavit of Angelica Outerbridge dated 18 March 2024 at paragraph [28]
13She was reviewed by Dr Wallace, an orthopaedic specialist retained by the defendant, in June 2021.[12] He diagnosed her as sustaining an aggravation of pre-existing lumbar spinal problems. He considered that she had mechanical low back pain which prevented her returning to her old work. He took a history that she was also unable to enjoy her normal leisure activities such as golf.[13]
[12]DCB 13
[13] DCB 15
14It then appears that she did not have any significant treatment during the remainder of 2021 except for some acupuncture. In part this was because she had fallen pregnant in about May 2021. She had her first child, a girl, on 8 February 2022. Shortly afterwards she had an x‑ray of her lumbar spine on 30 March 2022 on a history of chronic back pain. She had some osteopathic treatment during 2022 and was then examined by Dr Edis, an orthopaedic medico-legal specialist, for the plaintiff. This was an appointment via Telehealth, and so clinical examination was limited. He took a history that she had significant difficulties with sitting for longer than 20 minutes, driving for longer than 30 minutes, and was limited in walking to about an hour. Similar to Dr Wallace, he diagnosed her as having mechanical low back pain resulting from the annular tear at the L4-5 level with bulge. He considered that her injury had arisen throughout the course of her employment with Temptation Bakeries.[14]
[14]PCB 41
15She was examined by Mr Kossmann, a medico-legal orthopaedic specialist, for the plaintiff, in August 2023. He similarly considered that she had sustained an injury at work which was extant. He considered it had arisen throughout the course of her employment with Temptation Bakeries and it was now of such an extent that she could not return to her old position.
16Similarly, Dr Yong, a medico-legal occupational physician, who examined her in October 2023, formed a similar view on causation. [15] He considered that her injury remained extant. He considered her incapacitated for employment for the foreseeable future.
[15]PCB 54 and 59. On causation, PCB 48
17In that setting, the plaintiff swore her first affidavit on 18 March 2024. She deposed to having constant low back pain which restricted her movement, such as walking and standing. She deposed to having difficulties driving, and struggling with housework. She deposed to struggling to put on her shoes and socks, and struggling to pick up her young child. She also deposed to being limited in her leisure pursuits such as fishing, bushwalking and hiking. She deposed that she avoided going out.
18A month later she gave birth to her second child, a boy, on 30 April 2024.
19Shortly after that she began seeing a physiotherapist, Ms Buttner.[16]
[16]PCB 14, Affidavit of Angelica Outerbridge dated 18 February 2025 at paragraph [5]; DCB 38-40
20Examinations with Dr Yong and Mr Kossmann in December 2024 led to similar findings as to their first reports. Both considered that she had no work capacity at that stage. She was also sent to see a medico-legal pain specialist, Dr Sullivan, by her solicitors in December 2024. He diagnosed her as suffering from an aggravation of lumbar spondylosis caused by her employment duties during the course of her employment with Temptation Bakeries.[17] He considered that she was largely incapacitated for work, but may have in the future an ability to do sedentary positions of 10 to 15 hours per week.[18]
[17]PCB 137
[18] PCB 138
21Her treating doctor, Dr Aguado, opined in December 2024[19] that she was experiencing severe lower back pain with significant tenderness. He was not of the opinion that she had an immediate capacity to return to work, but did not rule it out in the future.[20]
[19]PCB 35
[20]PCB 35
22She was sent by the defendant to see Dr Allen a medico-legal orthopaedic specialist on 30 January 2025.[21] In contrast to all other opinions which I have referred to above Dr Allen found that there was no workplace injury. On examination he found no clinical abnormality, and considered that she had a full range of motion and was able to go back to work immediately.[22]
[21]DCB 25
[22]DCB 27
23On 18 February 2025 the plaintiff swore her second affidavit. She deposed to struggling to lift even light objects, being limited in her walking, and occasionally walking with a slight limp if she had overused her back.[23] She deposed that her niece from the Philippines had arrived to assist her with caring for the children. The plaintiff deposed that because of her back injury she was struggling with home duties, and her niece was able to provide assistance with those tasks.[24]
[23]PCB 15, Affidavit of Angelica Outerbridge dated 18 February 2025 at paragraph [14]
[24]PCB 14, Affidavit of Angelica Outerbridge dated 18 February 2025 at paragraph [11]
What is the injury?
24The defendant in this matter concedes that a workplace injury occurred. They disavowed any reliance on Dr Allen’s opinion on this point. However, they submitted that any such workplace injury had resolved, or, if any injury had persisted, it was of an extremely minor nature.
25Starting with the injury itself. The defendant’s concession on this point seems to me well made. The overwhelming evidence is that the plaintiff sustained an injury throughout the course of her employment with Temptation Bakeries and in particular in April 2019.[25]
[25]Mr Barton, DCB 6; Dr Wallace, DCB 17; Dr Edis, PCB 37 and PCB 41; Mr Kossmann, PCB 88; Dr Yong, PCB 45; and Dr Sullivan, PCB 134
26Given the evidence, I find that there is an aggravation of lumbar spondylosis which has occurred throughout the course of employment and particularly on 24 April 2019. I must then identify the consequences of the aggravated condition and determine if they meet the threshold test.[26]
[26]Seckold v Transport Accident Commission [2025] VSCA 18 at [56]
27In considering that issue, it is particularly important that even though she had some spinal degenerative change before mid 2018 it caused no problems which required time off work, treatment, or interruption in her leisure and domestic activities. As a result I find that the impairment consequences she complains of occur in a situation where there were no pre-existing manifestations of the degenerative condition which need to be separated out.
28Bearing that in mind, I turn to identifying the impairment consequences. That calls for an assessment of the plaintiff’s evidence, her reliability and credibility.
Reliability and credibility: the video surveillance evidence
29The plaintiff was sworn and adopted her affidavits. She was then subject to cross-examination. I pause to note that from almost the beginning of her evidence-in-chief, and throughout the remainder of her cross-examination and re‑examination, the plaintiff constantly grimaced while sitting or standing in the witness box. She stretched her back frequently and shrugged her shoulders. I raised the issue with counsel of whether the plaintiff’s presentation in the witness box was contrary to her presentation on the video. I will return to this issue.
30Almost immediately upon cross-examination commencing, counsel confirmed with the plaintiff that she had difficulty with bending, her ability to walk being limited to some two to three hours at most,[27] that she had difficulty pushing a trolley when laden, that she could push a trolley for an hour,[28] that she had difficulty reaching up to close the boot of the car,[29] and that she had difficulty lifting weights over five kilograms.[30] This largely paralleled evidence in her affidavit and also evidence given to many of the doctors.
[27] At T13, L9 – she described this as being “very difficult”
[28]T14, L29
[29]T15, L9
[30]T15 – particularly her children
31The first tranche of video was then played. It ran for about eight minutes, and depicted events on 16 December 2024. That showed the plaintiff by herself entering a shopping centre and going into a supermarket. She obtained a trolley and walked around the store, picking items from the fruit and vegetable aisles and the delicatessen. She was then shown exiting the store. Once returning to her car, the plaintiff is then shown loading a 10-kilogram box of water bottles into the boot of the car in a completely unrestricted manner. This is entirely inconsistent with the evidence in her affidavit material. It is also inconsistent with a number of medical reports which indicate her lifting tolerance is for light weights below five kilograms.[31] In contrast to the evidence she had just given via her affidavits and then in the initial part of cross-examination, it showed her walking freely, pushing a trolley laden with goods in a free and unrestricted manner, and reaching for goods and delicatessen items in a completely unhindered way. Though it was of brief moment, the video evidence stood in absolute contrast to the picture that the plaintiff had painted in her affidavit material and confirmed in cross examination.
[31] PCB 42; PCB 55; PCB 90; PCB 97; PCB 138
32The next video was then played. It was dated 17 December 2024, and depicted the plaintiff at a shopping centre again. This time the video surveillance commenced with the plaintiff parking her car in a parking bay at 9:43am. The video is somewhat obscured. It is taken looking from the front of the plaintiff’s vehicle through the windows to the back. This difficulty did not, however, obscure completely the activities that the plaintiff was performing at the rear of the vehicle. After arriving in the parking bay, the plaintiff and her niece, who was in the passenger-side front seat, got out of the car. They went to the boot, and there, it appears, that the plaintiff removed a double pram and assembled it. She then took the children from the car. Her three-year-old daughter appears to climb out of the car herself, and the plaintiff picked up the eleven-month-old from the baby seat, and then put the baby into the pram. The plaintiff then reached up and closed the tailgate of the vehicle. During this process the plaintiff’s niece does not appear to help in any way with the assembly of the pram, the loading of the children, or the closing of the car.
33The family then moves into the shopping centre. The camera picks them up over a period of approximately two hours. During that time, the plaintiff lifts her three-year-old child into the trolley. She does so freely, and with no obvious restriction. I interpolate that the three-year-old child must at least be the weight of five-kilograms.[32]
[32]PCB 134 Medical Report of Dr Richard Sullivan dated 9 December 2024
34The family then proceeds into the shopping centre and to a variety of different stores. The plaintiff is seen standing at racks of clothes and reaching up to obtain things from top shelves. Around half an hour after commencing, the plaintiff moves the baby into the trolley next to the three-year-old while her niece pushes the empty pram next to her. The trolley becomes loaded with a variety of goods. The plaintiff pushes the laden trolley with both children in it for just over 30 minutes. About one hour into the film, the plaintiff transfers the children to the pram and then began pushing it. The camera follows the family throughout the shopping centre over the next hour or so. The plaintiff remains pushing the children during this time.
35The plaintiff and the niece then return to the car at about 11:35am. The plaintiff is seen crouching quickly to the ground at times, and then picking up her eleven-month-old child to place the child back into the baby-seat. This shows her bending over. She then collapses the pram, places it in the boot of the car, and, with one arm, reaches up to close the tailgate. During this time her niece does not assist her.
36My assessment was that the video surveillance taken over this almost two-hour period stands in complete contrast to the plaintiff’s evidence in her affidavits and confirmed at the beginning part of cross-examination. I formed the view that the plaintiff was seen in the film moving freely and easily, and completely unhindered in walking, crouching over, reaching up, or in her ability to push and manoeuvre weights in the pram and trolley. I estimate these weights must have been in excess of 5-kilograms, and may have been much more.[33]
[33]Medical Report of Dr Richard Sullivan dated 9 December 2024
37Before leaving my assessment of the first tranche of video, it is also necessary to record that when these inconsistencies were put to the plaintiff in cross-examination, she accepted that the video displayed her moving in a reasonably free and unrestricted manner. So, for example, she conceded that she could bend quickly from the waist, lift her baby with no problems, and had no difficulty moving the trolley with her daughter in it.[34] She conceded that the video showed her moving over a few hours. That is relevant, because the plaintiff did not give any evidence that during this time with the trolley she required a break while at the shopping centre, either for having a coffee or to find some place to rest her back in an alternate position. This becomes relevant because in re‑examination she was asked as to whether or not she needed to alternate positions to gain relief, to which she replied that she did.[35] This is also an area of inconsistency, I find.
[34] T24, L4-28
[35] T25, L25 – T26, L1-2
38It was then put to her that during all these activities depicted in the video she was not in pain. The plaintiff did not concede that was the case, and, rather, countered that during this time she was in pain. I record that when I had regard to the video I did not see any outward visible sign of her being in pain. For example, there was no grimacing expression on her face, nor did she stretch her back or feel her back in the ways that she did during the course of giving evidence in the witness box.
39I consider this to be an area of real inconsistency.
40Turning to the second tranche of video evidence. This was taken on 2 March 2025. It is video surveillance of a reasonably short period of time, showing the plaintiff and her husband at church on a Sunday morning. Both parents get out of the car and go to the back of the car. Mr Outerbridge then opens the boot, takes out the pram, and assembles it. The plaintiff takes a much more passive role. The youngest child is placed into the pram, and the pram is then wheeled into the church. The video does not record what occurs in the church, and the family are then seen exiting the church some three hours later. Once again Mr Outerbridge dismantles the pram and places it in the boot, and the children are placed into the car. Not much can be said in respect of this video and whether or not it shows the plaintiff in any particular light.
41The next video was taken on 3 March 2025. It shows the plaintiff’s car parked in a car park at a play centre. The plaintiff is by herself with the two children. The plaintiff goes to the rear of the vehicle, opens the tailgate, and takes out the pram.
42Once she has removed the pram, she sets it up by inserting the seats and various clips. During this time she is bending over the pram at the waist. She then bends over, lifts up a leg onto the bumper bar, and ties her shoelace. At one moment she places her hands on her back to stretch. Having assembled the pram, she then goes to the car, removes the baby, and places the baby in the pram. Her daughter then exits the car herself. The plaintiff closes the doors, reaches up to close the tailgate, and then walks off with the children.
43Not much vision can be seen of the family inside the play centre. The video captures them on exit, and they go to the car. At the back of the car, the plaintiff removes the baby from the pram by bending at the waist, taking the baby to the side of the car, and bending over and in to place the baby into the child seat. The young daughter climbs into the car herself. The plaintiff then disassembles the pram, and, very forcefully and with some gusto, shoves the pram back into the boot of the car. That is a free and easy action. She then reaches up and closes the boot of the car.
44I record my impression of the video is that it showed the plaintiff moving in a free and unrestricted manner. I do record that I saw her on one occasion stand up and stretch her back. This did not seem to limit her movements immediately afterwards. In particular, after that stretch, she did exert quite a bit of force to disassemble and then push the pram into the back of the car. She did so with no sign of any restriction in her mobility or with lack of strength. Similarly, she was able to reach up in quite a free and easy manner to close the car boot.
45In cross-examination on this video, she conceded that she could assemble and disassemble the pram quickly and easily. She admitted that she was able to tie her shoes easily. She conceded that even after stretching her back, she kept going with her activities with no problems.[36] Those concessions were fairly made by the plaintiff. However, they reveal a picture completely at odds with her affidavit evidence and once again her presentation in the witness box before me. I consider those matters to be very significant.
[36] T28, L4-12
46This is because they reveal a significant unreliability in what she has deposed to as to what she was seen on film doing and was then willing to concede in evidence. It is unclear why her affidavit evidence was so adamant about the restrictions that she was under; yet when faced with the incontrovertible video evidence in the video, conceded readily. It raised a real doubt in my mind as to the veracity of her affidavits and whether they could be relied on to accurately depict her impairment consequences.
47She was also cross-examined on other matters arising out of the video evidence. The first was in relation to the role her niece plays. It will be recalled that she had deposed that her niece had arrived from the Philippines to assist her with home-care duties and the children because her back condition was so difficult to manage that she was unable to do many of these tasks properly. However, in the video surveillance her niece is shown on 17 December 2024 at the shopping centre trip which lasted for some two hours. During that time, the niece does not assist with tasks such as removing the pram from the car and assembling it, removing the children from the car and placing them into the pram, or even pushing the children in the pram. In those circumstances, it is very difficult to understand what assistance the niece actually provides. That is, she was present when the plaintiff was, on her evidence, doing tasks which were difficult for her, yet the niece did nothing to assist.
48Further to this, the defendant tendered a report from her treating doctor (directed I assume to the Department of Immigration) on 3 February 2025.[37] In that letter, the treating doctor opines that the niece’s visa ought to be extended as she is providing support for the plaintiff, who had a background history of depression and was still getting occasional flare-ups. In that circumstance the treating doctor supported the niece’s presence in Australia.[38] This seems to directly contradict the plaintiff’s evidence that the niece was present to assist her given her physical limitations. In combination with the video, I consider that the plaintiff’s evidence as to her physical limitations necessitating the niece’s presence is unreliable.
[37] DCB 36
[38]DCB 36; DCB 42
49The second issue which the defendant raised was the plaintiff’s evidence in re‑examination that she struggles with any type of computer-entry work.[39] However, as the defendant pointed out, in the plaintiff’s own curriculum vitae[40] she had a plethora of experience in cashpoint sales and register balancing. This necessarily involved some computer terminal data entry, and is inconsistent with her bald answers that she had no such experience.
[39] T65, L22 –T66, L3
[40]DCB 44
50I should also say something about the way that the plaintiff answered questions. I have noted above that she was ready and willing to concede when faced with the video evidence. That is in some ways to her credit. However, in re‑examination she seemed to go back on many of the things that she had conceded. So, for example, she was taken to the position of a retail sales assistant.[41] She was then asked if she could stand to position stock depicted in the job description. She responded that she could not stand to position stock.
[41] DCB 74
51However, in the video evidence she was shown on numerous occasions in the supermarket, and again at the shopping centre, taking stock from shelves, examining it, and then putting it back. It is unclear why, if she conceded she could do those things in cross-examination, in re‑examination she denied that she could stock shelves, which is an entirely similar activity, given the weights involved were both light and easy to manipulate. It maybe thought that work duties have a repetitive nature and the plaintiff could not do that aspect of the work, however that was not her evidence. Further, she was shown in the video reaching up above shoulder height at the delicatessen counter, and then also to take some clothing off high shelves. So, in her denial in re‑examination of being able to be a stock picker and packer, it is unclear why she could not perform similar tasks at similar heights.
52Similarly, she said in re‑examination that she was unable to lift five kilograms up to about 900 millimetres in height (just under a metre). However, in the video she is seen lifting her child up from the ground to place her in the trolley. That was over a metre in height. Similarly, she picked her young son up to place him into the pram and then remove him. All this involves lifting weights similar to, or in excess of, those she would be required to lift in a position as a courier.[42] Once again, her re‑examination was inconsistent with the concession that she had made earlier.
[42]DCB 83
53She was then asked if she could carry a three-kilogram esky. Her answer was that she could not do so because it would cause pain. Having conceded in cross-examination on the video that she was seen lifting and moving weights in excess of that, freely and easily, it is completely unclear how the evidence in re‑examination should be treated. In fact, her evidence in re‑examination retreated essentially to denying being able to do anything because of her “back” and her “pain”. I found that evidence extremely difficult to follow or understand.
54Having gone through those matters, I return to the issue which I raised with counsel, which was that her presentation in the witness box was inconsistent with that seen on the video or recounted by her doctors. Counsel for the plaintiff submitted that the environment in the witness box was different to that which she experienced moving about, and so there was no direct comparison which could be made.
55I would reject that submission. As I indicated at the outset, almost from the moment the plaintiff began her evidence-in-chief she was grimacing and stretching every few minutes. I can accept that an extended stay in the witness box might cause some stiffness and the need to move about. However, for such a presentation to be immediately apparent on the commencement of her evidence is not susceptible to the same result. I record then my finding that her presentation in the witness box was inconsistent with what is recorded in the video and in the medical material.
56In addition to the plaintiff’s evidence, an affidavit was also filed by her husband which was broadly supportive of the matters that she had deposed to. However, he had not seen the video recordings and his affidavit is silent on the discrepancies which I have set out above. In that circumstance, I find his affidavit of very limited use.
57To conclude my assessment of the plaintiff’s credit and reliability, I have come to the conclusion that the video evidence stands in such stark contrast to the plaintiff’s evidence in her affidavit material, to the recorded histories to various doctors, and to her presentation in the witness box, that I cannot accept her as a reliable witness. I do not consider that a finding as to her credibility can be made. This is because it was not squarely put to the plaintiff that she deceptively constructed her affidavit.[43]
[43]Juma v Kone Elevators [2024] VSCA 217 at [79], [88] – as to the opportunity of the witness to respond to the allegation that she had deliberately sworn an affidavit which was incorrect on material matters
58Having made that finding, however, I must still consider the overall evidence in the case.[44]
[44] Arnotts Biscuits v Cakir [2007] VSCA 104 at [49]
The loss of earnings component
The parties’ submissions
59Turning then to deal with the primary focus of the plaintiff’s case, the loss of earnings component. Her primary contention was that she:
(a) could not return to work in her pre-injury role;
(b) if she had a capacity it was:
(i)for limited vocations and
(ii)for limited hours;
(c) her residual capacity, if exercised, meant that her current earning capacity in suitable employment when compared with the figure that most fairly reflects what she was capable of earning within the three years before, and three years after the injury results in a loss of 40 per cent or more of gross income.
60The defendant’s contrary submission was that the plaintiff had:
(a) loss of earning capacity consequences, when judged by comparison with other cases in the range of impairments or loss of a body function, which could not be described as at least very considerable; because on the plaintiff’s evidence she had no intention of exercising her capacity to work after the birth of her children as she wanted to be a stay-at-home mother. In that setting, she had no loss of earning capacity consequences;[45]
[45]Defendant’s closing submission at T98, L12-20
(b) no incapacity;
(i)because of the film and her overall unreliability, such that this undermined all medical opinion on her incapacity;
alternatively,
(c) to the extent there was capacity, it could be exercised as a:
(i)receptionist;
(ii)food court cleaner;
(iii)pharmacy sales assistant;
(iv)retail sales assistant; and
(v)pathology courier,
on a full-time basis. If that was accepted, then the plaintiff would not have lost the requisite 40 per cent of loss of earnings.
The relevant legislation
61In order to make good her application on loss of earnings grounds the plaintiff must show:
(a) her loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or loss of a body function could be fairly described as being at least very considerable; and
(b) she suffered a loss of earning capacity of 40% or more measured as set out in s 325(2)(f) and (g); and
(c) She would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.[46]
[46]De Bono v VWA [2019] VSCA 85 at [47]
Are the loss of earnings capacity consequences at least very considerable?
62This focuses attention on s 325(2)(c) because the defendant submitted that it was always the intention of the plaintiff to be a stay at home parent and at the date of the hearing there was no consequence of loss of earning capacity. In support of that submission they relied on the plaintiff’s evidence in cross examination:
“And I suggest to you the reason you stopped working with
your brother-in-law [2001] was because you had plans to be a
mother and care for your children at home?---Yes, I
always have, yes.
Q. So that's been an aspiration of yours for some time, to be a
mother?---Definitely.
Q. And it's been your intention to be a stay at home mum,
looking after your kids at home?---Well, the kids, yes,
but I'm hoping that one day if I'm well then yes, I
would love to work.
Q. So the plan has always been that you have your children,
take care of them at home and then when they're older
you would consider whether or not you go back to
work?---If it wasn't for the injury, yes, definitely.
Q. And that's precisely what you're doing now, you're staying
at home to look after your children as you would have
whether the injury had occurred or not?---I wouldn't -
I wouldn't be able to say.
Q. What I'm suggesting is that even if the injury back in 2018
and 2019 had not happened, you'd still be at home
looking after your kids now because that was part of
your plan?---Yes.”[47]
[47] T38, L2-L24
63In re-examination the plaintiff gave different evidence. Essentially that she would have gone back to work by now but for the injury and placed her children in childcare.[48]
[48] T81, L21
64The evidence from cross examination and re-examination is contradictory. It stands as a further example of the unreliability of her evidence and the changing narrative she has presented to the Court as to the consequences of her injury.
65It furthers my impression that there is a real unreliability in the plaintiff’s evidence overall. Taking into account my broader findings about her reliability I proceed on the basis of the evidence given in cross examination because it was given first in time and before she had an opportunity to reflect on her answer.
66On the defendant’s submission by reason of that evidence there is no impairment consequence by way of loss of earning capacity because she would not have been earning at the date of the hearing. In contrast the plaintiff submitted that there was an economic consequence because she has been deprived of the ability to return to work when her children were older.
67I find that as at the date of the hearing the plaintiff is in fact doing exactly what she had planned to do, which was to take time out from the workforce. She would not satisfy the first criteria as set out above at [61] taken from De Bono and does not establish that she has a loss of economic capacity which is an impairment consequence which when judged in comparison with other impairments is more than significant or marked.
68If I were wrong about that, there is an alternative argument which must be considered but was not specifically argued: that is whether the Act requires the figure that must be compared at s325(2)(f)(i) to the figure from that most fairly represents the past earning capacity at s325(2)(f)(ii) is to be considered without reference to supervening factors; in this case the decision to have children.
69Referring to the legislation, it can be seen that s325(2)(f)(i) requires the comparative figure to be:
“(f)for the purpose of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing –
(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is –
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and –
…”
70As the plaintiff is not working at the date of the assessment attention focuses on s325(2)(f)(ii)(B). It can be seen that subsection (B) uses the term “capable of earning in suitable employment”. This focuses attention on capacity, as at the date of the hearing. It was urged by the defendant that as the assessment is done on the day of the hearing, all factors that bear on capacity as at that day must be taken into account. I have not been able to find authority on the point of whether this capacity is assessed having regard to supervening factors which act on the worker’s capacity on the day of the hearing.
71A discussion on a similar topic by J Forrest J in Acir v Frosster Pty Ltd[49] deals with whether or not supervening events are to be brought into account in the assessment of the three years before and three years after to determine the figure that most fairly represents the past earning capacity in s325(2)(f)(ii). However in his discussion, J Forrest J was not called on to look at whether the comparator figure at s325(2)(f)(i)(B) is assessed with or without regard to supervening events.
[49][2009] VSC 454 at paragraph 175 (dealing with the analogous provisions in the Accident Compensation Act 1985 (“the ACA”))
72In that case the plaintiff had sustained injury to his back on 19 January 2005 in the course of his employment. Most importantly, however, he contended that he had developed cirrhosis of the liver due to worsening alcohol consumption as a result to trying to cope with his back injury. At the time of trial in 2009 he was gravely ill, terminally so, and required a liver transplant. Justice J Forrest found that the cirrhosis was not a work related condition. As such it operated as a supervening event to completely rob him of his earning capacity at the time of trial in 2009. In that circumstance, His Honour disregarded the effect of the supervening event and performed the comparative assessment called for in the loss of earning capacity sections of the ACA at s134AB(38)(g), which mirror the sections in the WIRCA before me in s325. This clearly suggests that for the purposes of the serious injury assessment of loss of earning capacity in respect of the three years before injury and three years after that most fairly reflect the past earning capacity, the attention focuses on the residual “capacity” and what earnings could be derived from its exercise – irrespective of supervening events.
73It might be thought that to allow an “apples with apples” assessment when assessing the loss of earning capacity as at the day of the application, no supervening events should be taken into account. This focuses attention on the work injury caused capacity – as J Forrest J did in Acir. This might of course be thought to result in anomalous results. So where at the day of the hearing the plaintiff had suffered a stroke and was completely incapacitated by it she would still have an argument that absent the stroke she had a work related incapacity which had to be assessed. However as J Forrest J pointed out that issue is resolved completely at the time of the damages trial when common law principles operate to ensure the plaintiff cannot recover. In this case while the plaintiff’s intentions in respect of having children and working resound in any damages trial, they are not issues brought into this assessment at this stage.
74The matter is not free from doubt but I consider, applying a consistent interpretation to that in Acir, I accept that in determining the figure at s 325(2)(f)(i)(B) I should not take into account the plaintiff’s decision to be a stay at home parent. I set out below my assessment of all of the evidence as to that residual capacity from [80] below.
What is the relevant earnings figure in 3 years before and 3 years after?
75In order to assess the loss of earnings capacity in accordance with s325(2)(e) and (f)(ii), the plaintiff must first establish what she was capable of earning in the three years before and three years after the injury as this most fairly reflects her earning capacity if the injury had not occurred. On this point, there was disagreement as to how the six-year period had to be calculated, because the parties disagreed on the date of injury. The plaintiff submitted that it was mid-2018 and the defendant submitted it was April 2019.
Plaintiff’s taxation returns Year Employer/Source of Payment Gross income 30/06/2016 Woolworths Group Ltd, Mountain Blue Farms (Labour Hire) Pty Ltd and Ingham’s Enterprises Pty Ltd $47,085 30/06/2017 Ingham’s Enterprises Pty Ltd $35,893 30/06/2018 Temptation Bakeries Pty Ltd $30,502 30/06/2019 Temptation Bakeries Pty Ltd $42,264 30/06/2020 Temptation Bakeries Pty Ltd and Workers’ Compensation $37,980 30/06/2021 Cable Magic Pty Ltd and Centrelink $14,736 30/06/2022 N/A Nil 76The defendant submitted that as the date of injury was April 2019, the relevant six-year window of assessment ran from April 2016 to April 2022; thus excluding from consideration the financial year 2015/2016 in which the plaintiff earned her highest per annum income of $47,085.
77On the plaintiff’s submission, this year was to be included and led to a finding that the relevant figure was $47,085 without injury earnings or $905 gross per week.
78Not much turns on this debate which is centred on the relevant date of injury. This is because the section focuses attention on what the worker was “capable of earning” in the six-year window. The inquiry is not limited to what the worker actually earned. Here I find that even accepting the defendant’s submission of the relevant window, being April 2016 to April 2022, the plaintiff was capable of earning $47,073 or $905 gross per week in that period. This is because she had demonstrated that capacity in the open labour market quite recently, being in the 2015/2016 year.
What capacity does the Plaintiff retain?
79Starting with the treating material. Dr Dodson was her treating doctor in Victoria. He saw her in early 2020. He recorded at that time that she had “ever present pain, exacerbated by prolonged standing.[50] On examination he considered that she had a good range of movement, with some spinal tenderness. He referred her for physiotherapy.[51]
[50]DCB 10
[51]DCB 12
80Dr Brazil is the plaintiff’s current treating doctor and has been seeing her since May 2021.[52] In his report of February 2025, he considered the plaintiff had physical restrictions on pushing, pulling and lifting and prolonged sitting, standing and walking.[53] Mr Aguado, an osteopath, has seen her since April 2022. It is unclear if this was on a regular basis. In his report of December 2024, he considered that she needed ongoing osteopathic treatment, had difficulty in working more than three or four hours a day, but considered there was a possibility of a full-time return to work “one day”.[54]
[52]This is at the Harbourtown Medical Clinic where she also consults with Dr Cano
[53]PCB 34
[54]PCB 36
81The medico-legal orthopaedic specialist, Mr Edis, examined the plaintiff on behalf of her solicitors. He considered that she could perform a … “low level of physical effort [which] allows opportunity to vary her tasks and posture”.[55] He limited her physical capacities to lifting five kilograms and work duties before rotation at about 30 minutes.[56]
[55]PCB 41
[56]PCB 42
82The primary evidence the plaintiff relies on in respect of her occupational capacity is that of Dr Yong, the occupational physician.
83Mr Yong is the only occupational physician in the case. He considered whether the jobs suggested by the defendant constituted suitable employment. His broad view was that the plaintiff had a limited physical capacity. He opined that she could not return to work in her old job, but could do some of the jobs posited by the defendant, but only on a part-time basis. These being as a sales/pharmacy assistant or receptionist.
84Dr Sullivan, a medico-legal pain specialist, who opined on behalf of the plaintiff, considered that she was at risk of provoking her symptoms if she returned to work. He considered she had at best a theoretical capacity for sedentary work of a part-time nature.[57] Those were sales assistant and receptionist at about 10-15 hours per week.[58]
[57]PCB 138
[58]PCB 139
85Mr Kossmann, a medico-legal orthopaedic specialist, opined for the plaintiff’s solicitors and expressed a view very similar to that of Dr Sullivan.[59]
[59]PCB 106
86In contrast, the defendant primarily relied on the opinion of Dr Allen. The report of Dr Barton in 2019 is dated and of almost no use on the topic of capacity. I put it aside. Dr Wallace’s report of 2021 was confined to an impairment benefit assessment and did not comment on capacity.
87Dr Allen’s central thesis was that there was no extant workplace injury. Even the defendant disavowed that opinion. However, the defendant did rely on his opinion as to capacity which was that there was “… no objective evidence to suggest that there is any impediment to gainful employment”.[60]
[60]DCB 29
88Before delving into an assessment of these opinions, the plaintiff raised a preliminary point. This revolved around the suitable employment suggested by the defendant; each of the jobs were based in Victoria, yet the plaintiff resided in Queensland (the Gold Coast to be precise). The submission seemed to be that as no Queensland jobs were identified close to the plaintiff, the defendant had failed to satisfy the Court that they constituted suitable employment.
89I reject that submission. It is unclear, but I assume that the plaintiff’s submission is based on Giankos v SPC Ardmona Operations Ltd. [61] In that case, a worker was living in Mooroopna in country Victoria. He suffered injury at the employer premises in Shepparton. His working life had predominantly been in manual unskilled work, though at one point he had run a hotel. The defendant submitted that he had a capacity to perform suitable employment and tendered a vocational assessment report which identified a range of jobs, particularly that of being a forklift driver. The Court found that the definition of suitable employment required regard to be had to a range of factors including the worker’s place of residence, as mandated by the definition of suitable employment in the Act. In this particular circumstance, where the plaintiff had a narrow range of residual skills as a forklift driver, work situated a long distance from his home could not be regarded as “suitable employment”. This comment by the Court relied on Barwon Spinners v Podolak.[62]
[61] [2011] 34 VR 120 at 101
[62] (2005) 14 VR 622 at 636
90In this case, however, the jobs posited are broadly based, non-specialised jobs. These are as sales and retail assistants. They are jobs identified in the vocational reports as non-location specific – not as in Giankos based near a fruit production zone or a job only in Mildura for a Melbourne-based worker, as given as an example Barwon Spinners at 636. In this case, I am satisfied that the jobs suggested as appropriate in the vocational assessment are available equally in urban centres such as Melbourne and the Gold Coast. There is a large degree of commonality in the jobs described from one store in one part of the country to another. For example, it could not be seriously submitted that a job at Chemist Warehouse Gold Coast is different to the job at Chemist Warehouse Carlton. I come to this finding also because the section of the Act focuses on loss of earning capacity. This is a requirement to focus on what, if anything, the worker has to sell in the market.[63] It is not a test in which the presence of a specific job in a specific labour market is required to determine that a position constitutes suitable employment. I reject the plaintiff’s submission for these reasons.
[63]Richter v Driscoll [2016] VSCA 142 at 97
91Turning now to synthesise and assess all the evidence on the topic of what capacity, if any, the plaintiff retains.
92Given my findings above as to the reliability of the plaintiff’s evidence, I largely put her evidence to one side. Focusing on the opinions of her current treating doctor. He has seen her for some four years, though it seems with gaps in her treatment. While there are a few notes from the clinic and only one real report, which I have referred to, it can be seen that the clinical assessment leads to prescription of analgesia and referral for osteopathic treatment and physiotherapy treatment. The treating doctor obviously considered such was warranted and supported it on an ongoing basis in his last report. This indicates a strong level of support for the propositions that the plaintiff has had a low back injury, it remains extant and it requires treatment. What is implicit is that he is of the opinion that she is a genuine patient who needs ongoing treatment for her injury. In that setting, he set out the restrictions he imposed as I have set out above. This is supported by the osteopath, Mr Aguado. It is also supported by the clinical treatment notes of Ms Buttner, the physiotherapist, in mid-2024. These demonstrate more objective findings on clinical examination.[64] The notes reveal pain in the lower back and lumbar spine while having full range of motion, but some pinching on extension.[65] Ms Buttner’s notes considered that these symptoms require activity modification and symptom management.[66] I take this to mean modifications of her activities to ensure she did not aggravate her condition. These matters I consider stand apart from the plaintiff’s evidence. They represent some real objective finding by treating practitioners that there has been some significant impact on her physical functioning by reason of the extant injury.
[64]DCB 38
[65]DCB 38
[66]DCB 39
93Though these treating medical practitioners have not seen the video footage, they have had long experience of treating the plaintiff. Their opinions are formed over numerous consultations with the plaintiff and involve clinical assessment on more than one occasion. I do not consider their opinions are totally undermined by the video surveillance and my findings on the plaintiff’s reliability.
94However, this is not the case with the medico-legal practitioners. In this case, most medical practitioners, save for Dr Yong, have only examined the plaintiff on one occasion. None of them had access to the video and could comment on whether or not it altered their opinion. This leaves the Court in an invidious position. This is because the Court is robbed of an expert’s opinion on perhaps the most crucial element of the defendant’s case, which is that the video displayed the plaintiff in a largely uncompromised physical state.
95Starting with Dr Edis. He took a history that the plaintiff’s present function was of being able to sit for 20 minutes in a firm, straight chair. That she was able to drive for about 30 minutes before discomfort, that she did not experience any neuro radicular symptoms, that she could ascend and descend stairs comfortably and could tolerate walking for about an hour but avoids more because she then needs to rest. He took a history that she could manage domestic tasks with pacing and relied on her husband for care of the baby and some domestic tasks.
96This history is somewhat at odds with the video material. For example, the video showed the plaintiff walking for more than an hour and she gave no evidence that she had rested in that period. Similarly, the extent of the reliance on her husband to assist with the baby must be called into question given that her niece stood by and watched her attend to both children around the shopping centre and manage that by herself.[67] Furthermore, when he set out the restrictions that were to be imposed, he restricted pushing, pulling or lifting to 5 kilos, repetitive pushing, pulling or lifting to 5 kilos, that she avoid bending, reaching, twisting or stooping, that she not sit, stand or walk for 30 minutes.[68] This material stands in complete contrast to the video surveillance. That video showed her lifting the case of water bottles well in excess of five kilos with no difficulty at the time or after. Second, the history given to Dr Sullivan was of lifting her child, who weighed some seven kilos. It might be said that this was not on a repetitive basis. However, the restrictions imposed by Dr Edis simply related to pushing, pulling or lifting. Furthermore, he limited her sitting, standing and walking to 30 minutes. Yet it was apparent from the video that she certainly walked and stood for well in excess of this time.
[67]PCB 39
[68]PCB 42
97I consider these significant inconsistencies and do not accept that reliance can be placed on Dr Edis’s opinion as to the restrictions on her work capacity.
98Turning to Dr Yong. In his first report of 5 October 2023, he took a history that the plaintiff could perform shopping at her own pace, and for reduced periods of time could do cooking, shopping and laundry. As for her functional capacity, it was limited to 30 minutes for sitting, standing, walking and driving.
99Similar to Dr Edis, he recorded that she had a mildly reduced range of motion in the lumbosacral spine with no neuro radicular symptoms.[69] As a result, he imposed the following restrictions:
· avoid repeated bending and twisting of the back;
· avoid repeated firm pushing and pulling tasks;
· avoid lifting more than 5 kilograms on a repeated basis;
· vary posture regularly between sitting, standing and walking; and
· reduction in working hours.[70]
[69]PCB 52-53
[70]PCB 55
100In his second report, Dr Yong repeated those functional recordings in respect of sitting, standing, walking and driving, and also restricted her work capacities in a way that he had done before.
101He was then specifically tasked with opining as to whether the jobs set out in the vocational report of Recovre dated 6 November 2024 would constitute suitable employment. He formed the following opinions:
Commercial cleaner
He considered this was unlikely to comply with the recommended restrictions.
Domestic cleaner
He considered this role would not be considered suitable to perform.[71]
[71]DCB 76
Courier
He considered this role was unlikely to comply with the recommended restrictions.
Service station attendant
He considered this role was not suitable.
Receptionist
He considered this role may be suitable but retraining services might be required prior to commencing.
Pharmacy sales assistant
He considered this role would be unlikely to comply with the recommended restrictions as it had bending and twisting actions, lifting weights which might exceed the current functional tolerances.
Contact or call centre operator
He considered that she would require the provision of retraining services prior to commencing this role.
Sales assistant (general)
Specifically this was a role based in an optical dispenser. He considered that she required retraining prior to commencing this role.
Picker/packer
He considered this role was unlikely to comply with the recommended restrictions.
102To summarise, Dr Yong considered that the receptionist, call centre operator and optical sales assistant roles may be suitable after the provision of retraining. He considered that she had the capacity to perform tasks for about five hours per week which could increase up to a maximum function of 10-15 hours per week.[72]
[72]PCB 80
103His last report of 3 February 2025 was really to consider the report of Dr Allen, which had been commissioned by the defendant. He did not consider that report required him to alter his opinion.
104Dealing with Dr Allen next. As I have set out, his opinion in respect of causation was not relied upon by the defendant. There is perhaps a good reason for this. It is a complete outlier in respect of the medical evidence in this case. It is certainly not supported by the treating doctors or any of the medico-legal practitioners who have been otherwise relied upon. That view I consider to have been so extreme that it really infects the remainder of the report. For example, starting from the position that there was no injury caused at work must invariably lead to the conclusion that there is no incapacity caused by that work injury which had been denied by the initial opinion. It can then simply be repeated that I would not accept his initial assessment that there was no injury caused at work. Similarly then, I do not accept his opinion expressed in the remainder of his report that there is simply no incapacity. This is particularly so given the treating practitioners in such a case ought be given a greater deal of weight given they have treated the plaintiff over a much longer period of time in a treating capacity. I therefore do not accept Dr Allen’s opinion.
105If Dr Allen’s opinion is set aside, then the defendant is left in the position of arguing that by reason of the plaintiff’s lack of reliability, the medical opinions that she has called in aid must be set aside in total.
106I would reject that submission because, as I have set out above, the treating medical material at least sets out an objective basis for a finding that there are ongoing restrictions experienced by the plaintiff. That evidence stands aside from a reliance on the history that she has given. For example, her treating doctor since 2021 has had access to radiology and background materials as to the onset of her injury. He has then had the benefit of treating her over a period of time, assessing her clinical examination findings in combination with her response to analgesia. In addition, he has recommended courses of osteopathic and then physiotherapy treatment. Some of this he recommends as necessary on an ongoing basis. He was I consider in a good position to opine on the restrictions that she would face in her earning capacity. I accept that opinion also because it is consistent with the notes of the physiotherapist and the osteopath.
107Turning back to consider Dr Yong’s opinion. It can be seen that in terms of the history he has as to her level of function,[73] he was clearly incorrectly informed that her walking capacity was limited to 30 minutes and as to her ability to perform activities such as shopping on an unrestricted basis. This is because the video showed her walking in excess of that time around a shopping centre with a trolley containing goods and both her children. In terms of the restrictions that he imposed, they were restrictions on repeated action such as bending, twisting or pushing and pulling tasks. This is not contradicted by the film which showed the lifting of the water bottles on one occasion or the lifting of the child or pram on one isolated occasion. The video footage broadly in respect of these restrictions is not contradictory to the information he was provided with by the plaintiff.
[73]PCB 70
108In addition to forming his opinion on just the plaintiff’s instructions in consultation, he also performed a clinical examination and looked at a wide variety of materials beginning with the claim forms, radiology, numerous materials from treating general practitioners and physiotherapists, and a barrage of clinical records.
109I consider that it is possible to rely on Dr Yong’s conclusions as to her restricted capacities. The weight to be placed on this is significantly reduced by reason of the incorrect history that he has taken as to her walking capacity and ability to shop and push the trolley at least. It is also compromised I suggest because in the video her niece is shown as being on hand to assist with childcare activities but did not. This suggests that the plaintiff actively did not need assistance to perform these tasks. However, overall, given his assessment of her on two occasions, consideration of the large amount of material referred to him, the findings of his clinical examination and also his particular specialities as an occupational physician, his opinion cannot be lightly put aside in total as the defendant submits. Rather I consider that the effect of the video evidence and the plaintiff’s presentation in court along with her manner of giving evidence leads to a conclusion that Dr Yong’s ultimate determination of the limit on her capacity to work must be called into question. It is a finely balanced matter given his expertise and consideration of the matter but I consider the impact of the unreliability in the plaintiff’s evidence and the revelation by the surveillance of some retained capacities of the plaintiff lead to a conclusion that the limit on her working hours imposed by Dr Yong cannot be accepted. Rather the limit on her working hours cannot be determined on the state of the evidence given these matters.
110Ultimately, the opinion of Dr Yong is supported by both Dr Sullivan and Dr Kossmann. While this is relevant, I still consider the fact of Dr Yong’s speciality provides him with special importance in this case to be the primary factor in deciding to rely on his opinion. However, the fact that both Dr Sullivan and Dr Kossmann echo his findings does provide some limited weight in support of my finding. However, I recognise that their failure to view the video and some inconsistencies in the history taken with what is shown in the video means that less weight ought to be ascribed to their opinion.
111Overall balancing these matters while I accept Dr Yong’s opinion as to the fact that the plaintiff is restricted to the jobs he has identified and is limited to repetitive work in these roles in the way he identified I am not able to accept the limit on the hours he imposes as being up to 15 hours per week only. Rather the evidence on this point, due to the unreliability of the plaintiff’s evidence and the video material, leave me in a position where I cannot make a finding on the balance of probabilities that the plaintiff’s capacity is limited to the hours she submits. No finding on the outer limit of her capacity can be made on the whole of the evidence before the Court in accordance with the test s325(2)(f)(i)(B). The plaintiff’s claim fails at this hurdle also.
The pain and suffering claim
112On this front I can be brief. If it were necessary to make a finding on the pain and suffering component of the claim I do not consider that the plaintiff has sustained an injury which can be considered more than significant or marked. While it can be accepted she sustained an injury at work that remains extant the impairment consequences that flow from that cannot be determined with any certainty. I accept that the injury is an aggravation of the underlying degenerative condition but I do not find that the bulge or impingement is causally related, given Dr Dobson’s view and the opinions of Mr Kossman.[74]
[74]PCB 88, Dr Sullivan P132 and Dr Yong at PCB 71. I do not accept the opinion of Dr Edis that the bulge and tear were causally related PCB 40 given this other material
113I accept that she experiences constant pain, given Dr Dobson and Dr Brazil’s recordings as treating doctors, but its level or fluctuations are not able to be determined because of the unreliability in her evidence. While her doctors report the need for medication on occasion and support allied health treatment this is largely on the basis of her self reporting. I have set out above why I consider her self reporting of symptoms cannot be accepted totally.
114She takes only occasional Panadol and Nurofen – both non-prescription medications.
115While she has some physiotherapy and osteopathic treatment its frequency is unclear on the material.
116While she deposes to interruptions in her sleep, activities of daily living – including childcaring and leisure pursuits I do not accept these matters given the video surveillance and the unreliability in her evidence that this exposed. It seems to me that this also revealed a range of capacities which she has which are largely unimpeded by her back injury. These are activities which permit her to perform the functions associated with those of a normal parent of young children – going shopping, to leisure centres or to church. In none of those activities do I accept she is impeded. As has often been said the consequences to the plaintiff must be assessed alongside those functions which have been retained. Assessing this overall I find that the plaintiff has retained a large range of domestic, and recreational activities.
117It might be said that this finding is curious given that I have accepted Dr Yong’s evidence as to occupational limitations, however, the point of distinction is that he has not seen the video surveillance and I have. In addition, I must assess all the evidence including the plaintiff’s presentation in Court and the additional evidence. In that circumstance there may well be areas of my finding which conflict with his occupational restrictions. An example arises from the fact that I have seen evidence that the plaintiff’s niece does not assist her with childcaring tasks such as lifting and holding children. I then have found her injury does not have the consequence of limiting these actions. Dr Yong has made findings limiting her occupational capacity to lift and hold certain weights. I can accept that evidence because it is based in his expertise, having reviewed a wide amount of material and conducted a clinical examination, but it does not mean that his opinion has to be accepted by the Court having assessed all the evidence
118To summarise:
a) Reliability
The plaintiff was not a reliable witness and her evidence cannot be accepted.
b) Loss of earning capacity
The plaintiff’s past earning capacity is most fairly assessed as being $47,073 ($905 per week and the 60% threshold figure is $543 pursuant to s325(2)(f)(ii).
I am not able to determine the relevant figure that she is capable of earning in accordance with s325(2)(f)(i)(B).
c) The pain and suffering claim
The plaintiff’s impairment consequences cannot be determined with any certainty. On the state of the evidence they cannot be determined as being more than significant or marked.
119For these reasons, I will not grant the plaintiff’s serious injury application.
0
8
0