Saini v Victorian WorkCover Authority

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-03656

REKHA SAINI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	23 and 24 May 2023
DATE OF JUDGMENT:	14 June 2023
CASE MAY BE CITED AS:	Saini v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2023] VCC 945

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords:              Serious injury – pain and suffering conceded – pecuniary loss
Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Church v Echuca Regional Health [2008] VSCA 153; Richter v Driscoll [2016] VSCA 142; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
Judgment:                  Leave granted to the plaintiff to commence common law proceedings for pain and suffering and pecuniary loss damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett KC with Mr G Pierorazio	Arnold Thomas & Becker Pty Ltd
For the Defendant	Mr T Storey	Russell Kennedy

HIS HONOUR:

Overview
1This is a “serious injury” proceeding brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2The issue to be determined by the Court is whether the plaintiff is entitled to leave to commence a common law proceeding for pecuniary loss damages.
3The issue for determination broadly falls to be decided on a consideration of the accepted evidence of impairment and incapacity for work, together with the factual findings from the disputed evidence and conclusions about the reliability of some of the plaintiff’s evidence (credit).
4For the reasons that follow, leave is granted to the plaintiff to commence a proceeding for pain and suffering and loss of earning capacity damages.

Introduction
5The plaintiff in this proceeding, Ms Rekha Saini, was born in India in 1972. She completed her education in India and obtained a Bachelor of Music, before working as a music/dance and physical education teacher.
6The plaintiff migrated to Australia in 2008 when she was thirty-six years of age. She now lives with her husband and three children in a northern suburb of Melbourne.
7After migrating to Australia, the plaintiff obtained qualifications, including a Certificate III in Hospitality, a Certificate III in Aged Care, a Certificate in Training and Assessment and a Certificate III in Bakery/Food Processing. Her work in Australia has included as a personal care attendant and as a food services assistant in nursing homes.
8By 19 December 2017, the plaintiff was working for Mercy Health (“the employer”) at Mercy Place Parkville (“Mercy Place”) as a food services assistant for approximately thirty-four hours per week at $22 gross per hour. Concurrently with her job with the employer, the plaintiff also had a second job at a Blue Cross nursing home in Kew. She was earning approximately $51,000 gross per annum combined from the two jobs.[1]
[1]        The figure of $51,000 gross per annum was agreed between the parties as the “before injury” earnings.
The fall at work
9On 19 December 2017, the plaintiff slipped on a wet timber floor in a dining area of Mercy Place, causing her to land heavily on her left side (“the fall”). The fall was caught on CCTV and apparently[2] shows quite a dramatic fall to the ground.
[2]        According to senior counsel for the plaintiff.
10There is no dispute that the fall occurred or that because of the fall the plaintiff suffered injury to her left arm.
Treatment after the fall
11I shall set out the plaintiff’s treatment after the fall, because it assists in an understanding of how the plaintiff’s left arm injury has affected her over the last five and a half years and the fluctuating nature of her symptoms.
12Shortly after the fall, the plaintiff attended a general practitioner, Dr Shridhara Bekal, at the Thornbury Medical Centre. Dr Bekal found that, clinically, the plaintiff had sustained a fracture of the left elbow, which was confirmed on x‑ray.[3] The plaintiff was then referred for further investigations and orthopaedic assessment.
[3]Plaintiff’s court book (“PCB”) 105.
13The orthopaedic assessment was with Mr Soong Chua, who she first attended on 8 January 2018. At that point, non-operative management was recommended.[4] However, at review on 19 January 2018, Mr Chua recommended surgery because the elbow fracture was then unstable.
[4]PCB 38.
14Therefore, on 25 January 2018, the plaintiff underwent a left elbow reduction and internal fixation of the radial head fracture.[5]
[5]PCB 40.
15The plaintiff was reviewed by Mr Chua on 8 February 2018,[6] 23 February 2018,[7] and 23 March 2018.[8]
[6]PCB 41.
[7]PCB 42.
[8]PCB 45.
16The next review with Mr Chua was on 20 April 2018. By that stage, the plaintiff had commenced physiotherapy treatment with Mr Stephen Lee of Physiocare in Reservoir. Mr Chua noted slow progress and that he had received an update from the physiotherapist. He wrote back to Dr Bekal and described reasonable progress, but that the plate and screws can occasionally cause crepitus and symptoms.[9]
[9]PCB 46.
17On 11 May 2018, Mr Chua reviewed the plaintiff and again wrote back to Dr Bekal, but this time saying that almost certainly the plate and screws would need to be removed. By then, the plaintiff had increasing complaints of symptoms in her left shoulder, and Mr Chua said he thought she had symptomatic subacromial bursitis with impingement and may require a subacromial injection.[10]
[10]PCB 47.
18At a review on 13 July 2018, Mr Chua noted the plaintiff to have had an injection in the left shoulder about six weeks previously, with a good response. In a letter of that date back to Dr Bekal, he described the elbow recovery as having plateaued and impingement from the metalware.[11]
[11]PCB 48.
19There was then a further review with Mr Chua in September 2018 and a decision to remove the metalware. On 22 October 2018, the plaintiff underwent a left elbow radial head removal of metalware.[12]
[12]PCB 50.
20At a post-operative review on 9 November 2018, Mr Chua recorded that the impingement symptoms and crepitus had resolved. He wrote back to Dr Bekal and reported that the plaintiff had almost regained her full range of extension and flexion and had already gained more supination than she had prior to the surgery.[13]
[13]PCB 51.
21The plaintiff then returned to Mr Chua on 6 December 2018. In a subsequent report back to Dr Bekal, Mr Chua said that the plaintiff’s recovery had slowed down since his last consultation with her, mainly as a result of a recurrence of her left shoulder pain. He described discomfort at the elbow. He wrote that there was a recurrence of subacromial bursitis with impingement in the left shoulder and that he had arranged another ultrasound-guided injection. He also recorded a discussion with the plaintiff about a return to light duties, if suitable duties could be found without using her left hand for significant lifting.[14]
[14]PCB 52.
22The next review with Mr Chua was on 11 January 2019. He reported to Dr Bekal that the left elbow was demonstrated on radiology to be a united fracture. He said that, clinically, her elbow pain had settled and apart from the loss of the final few degrees of elbow extension, the elbow appeared to have recovered. He said it was then the left shoulder that was causing more symptoms. He advised ongoing physiotherapy and avoidance of overhead activity.[15]
[15]PCB 53.
23At review on 15 February 2019, Mr Chua reported the left elbow pain had improved significantly and the main complaint was in the left shoulder.[16]
[16]PCB 54.
24Then, on 15 March 2019, Mr Chua recorded ongoing pain in the left shoulder which radiated along the arm. He described it as constant, with a severe neurogenic component. He wrote to Dr Bekal and expressed the opinion that the plaintiff had “progressed to a chronic regional pain syndrome which has many factors contributing to it”.[17] He said further that “[a]s you are aware, this is a very difficult condition to treat and the outcomes and duration of recovery is variable”.[18] He otherwise agreed with the physiotherapist’s recommendation of review with a pain management specialist.[19]
[17]PCB 55.
[18]Ibid.
[19]Ibid.
25Mr Chua reviewed the plaintiff on 11 September 2019 and reported back to Dr Bekal. He described persistent symptoms from subacromial bursitis with impingement. He said that there was also a chronic element to her pain and recommended a repeat subacromial injection.[20]
[20]PCB 56.
26Mr Chua then referred the plaintiff to a pain and rehabilitation specialist, Dr Jamie Young, at Dorset Specialist Centre. At review on 18 December 2019, Mr Chua noted there had been some improvement after her assessment with Dr Young.
27Interrupting the narrative of the treatment with Mr Chua, by 16 December 2019, Dr Young had commenced to treat the plaintiff.[21] He then wrote to Mr Chua on 13 January 2020[22] and said the use of Gabapentin medication had helped the plaintiff with her sleep, but had produced some side effects, and that he would otherwise pursue approval for a suprascapular nerve block, although, as he said, “she may not need it”.[23]
[21]        PCB 132.
[22]PCB 134.
[23]        Ibid.
28Dr Young reviewed the plaintiff on 18 February 2020. By then, approval had been obtained for the nerve block, but after a discussion with the plaintiff, it was agreed she did not need it as her condition had stabilised, although the option of the nerve block remained. Dr Young said his plan was to review the plaintiff in four weeks.[24] There is no evidence of that review taking place. For various reasons, the plaintiff never proceeded with the suprascapular nerve block.
[24]        PCB 136.
29Returning to Mr Chua, he next reviewed the plaintiff on 18 March 2020, but this time by telehealth after she had recently returned from a trip to India and was self-isolating due to COVID restrictions. Mr Chua recorded that the plaintiff’s left shoulder and elbow pain were improving, although not completely resolved. He recorded the plaintiff as finding her pain management plan useful under Dr Young’s supervision and that she had “regained a good level of function”.[25]
[25]PCB 60.
30Mr Chua had another phone consultation with the plaintiff on 6 May 2020, after which he wrote back to Dr Bekal and said:
“…Unfortunately she has developed recurrent pain through the left arm, which she described as progressing over the last month. There was no specific injury or triggering event that she could recall .…
She was due to have a suprascapular nerve block performed by Dr Jamie Young but I understand that this was put on hold due to the pandemic.
[The plaintiff] has a chronic pain syndrome. As you are aware these can be difficult to treat and often patients are left with some form of symptoms to manage over a very long time frame [sic] I understand she is engaged with her clinical psychologist and has ongoing physiotherapy and pain management ….”[26]
[26]PCB 61.
31Mr Chua then consulted by phone with the plaintiff on 31 July 2020, after which he reported her descriptions of significant symptoms and impairment from the conditions affecting the left shoulder and left elbow, as well as the chronic pain.[27]
[27]PCB 62.
32Mr Chua then had a final phone consultation with the plaintiff on a date after 31 July 2020. Following that consultation, in an undated letter to Dr Bekal, Mr Chua said that the plaintiff had unfortunately developed recurrent pain through the left arm, which she described to him as progressing over the last month. He said the plaintiff had a chronic pain syndrome. His plan was to review her in six weeks’ time for a face-to-face review.[28] There is no direct evidence as to whether that review took place or what, if any, advice Mr Chua provided to the plaintiff after approximately mid-2020.
[28]PCB 63.
33However, continuing a rough chronology of treatment, on 30 July 2020 the treating physiotherapist Mr Lee wrote to Dr Bekal and described how the plaintiff had been up and down with her progress. He said to Dr Bekal that, “some days she is doing well and her shoulder is not causing too much pain. Today she seems depressed and her pain increased in the shoulder back”.[29]
[29]PCB 82.
34The plaintiff has continued to attend Dr Bekal. He provided several reports, the first to the plaintiff’s previous solicitors on 1 August 2020,[30] in which he described a painful restricted left elbow and shoulder and a complaint of neck pain. He reported that the plaintiff had developed a secondary adjustment disorder along with depression and anxiety. He said that the plaintiff then had no capacity for pre-injury duties, but she had a work capacity for modified and suitable alternate duties. He expressed a similar opinion to the Accident Compensation Conciliation Service (“ACCS”) by report dated 26 August 2020.[31]
[30]        PCB 105.
[31]PCB 109.
35Dr Bekal wrote to the ACCS again on 11 January 2021. He said that the plaintiff had left elbow injury and subsequent ongoing pain and restriction, and ongoing left shoulder pain. He said there was left upper limb pain and that “[t]his is from chronic recurrent pain syndrome which is likely to be permanent and interfering with her activities”.[32] He said, again, that the plaintiff had no capacity for pre-injury duties, but had work capacity for modified and suitable duties.[33] He expressed a similar opinion in a report to the plaintiff’s previous solicitors dated 21 May 2021.[34]
[32]PCB 115.
[33]Ibid.
[34]PCB 117.
36Next, Dr Bekal reported to the plaintiff’s current solicitors for the first time by a report dated 7 May 2022.[35] He repeated matters of clinical history, diagnosis, and treatment. In this report, he also diagnosed pain in the neck and lower back. He went on to repeat his opinion regarding work capacity and said she had no capacity for pre-injury duties.[36] He said:
“She has a work capacity for modified and suitable alternate duties. She can do hours of 15 hours a week as tolerated by her … Again these duties should not involve using her left elbow and she is not able to lift more than 2-3 kgs.”[37]
[35]        PCB 121.
[36]        PCB 123.
[37]        PCB 124.
37Dr Bekal’s final report is dated 3 April 2023.[38] He again noted the left elbow and left shoulder conditions, as well as the plaintiff having pain in the neck and lower back. He said:
“Based on her permanent left elbow deformity with chronic pain she has no work capacity for normal work she was doing. She only has capacity for modified work.
…
She has left elbow injury and subsequent ongoing pain with deformity with restrictions of the elbow movements and ongoing left shoulder pain; Left upper limb pain; This is from chronic recurrent pain syndrome which is likely to be permanent in nature and interfering with her work and day- today [sic] activities.
…
She has a work capacity for modified and suitable alternate duties … at any alternative work place but she can only do not more than 15 hours a week. Again these duties should not involve using her left elbow and she is not able to lift more than 2-3 Kgs.”[39]
[38]PCB 126.
[39]        PCB 129.

38Dr Bekal described the nature of the injuries as a left elbow fracture and displacement of the radial head; open reduction and internal fixation. He said the nature of that injury was permanent.[40] He described left shoulder pain from bursitis. He described ongoing treatment for what he termed “mental health care”. He then concluded his report by saying “[b]ut she has some work capacity for suitable and restricted duties. But she has no work capacity for her pre-injury duties”.[41]
[40]        Ibid.
[41]        PCB 130.
39Dr Bekal consistently described the left elbow and shoulder injuries, and a restriction for work. Consistent with his reports, he certified the plaintiff as fit for modified duties, fifteen hours per week, up to her termination of work with the employer, to which I shall return in a moment.
40Completing a chronology of treatment for her physical injuries, I return to the evidence from the physiotherapist, Mr Lee. In addition to his correspondence to the treaters as already set out, he also provided several comprehensive medical reports, which summarise his treatment and opinions.
41In a report dated 7 July 2020[42] to the ACCS, Mr Lee set out the history of attendances at his clinic and his treatment of the plaintiff. He noted the plaintiff had returned from India between February and April 2020 and that, upon her return, she developed more significant neck and left shoulder pain that was affecting her work.[43] He recorded a discussion with the return-to-work co-ordinator in April 2020 and a reduction in some of the plaintiff’s hours of work. He recorded that, by May 2020, she had changed to working four hours a day for four days a week, doing temperature checks when visitors entered Mercy Place.[44] Mr Lee then said that the plaintiff will need retraining.
[42]        PCB 74.
[43]        PCB 79.
[44]        Ibid.
42Then, in a further report dated 22 April 2022,[45] Mr Lee again set out his clinical history, diagnosis, and opinions regarding the plaintiff. He noted ongoing, regular physiotherapy. He recorded his objective findings, such as the range of movement in the plaintiff’s left shoulder. He recorded her work duties up until her termination in July 2021. He said, “[s]he was able to continue to work up to 15 hours a week until this period”[46] and that “[p]ain continues to fluctuate which affects her movement and function”.[47]
[45]        PCB 83.
[46]PCB 90.
[47]        Ibid.
43Mr Lee said that the plaintiff needed ongoing physiotherapy treatment. He said she may ultimately require further surgery to her elbow or shoulder. In fact, he said she may require a left elbow replacement,[48] although I appreciate that he lacks surgical qualification in expressing that opinion, but it does perhaps illustrate the severity of the condition, as he saw it through the lens of the treating physiotherapist.
[48]        PCB 91.
44The last report from Mr Lee is apparently dated 27 March 2023.[49] In that report, he recorded that the last attendance by him on the plaintiff was on 10 January 2023, and he set out the ongoing treatment up to that date. Relevantly, Mr Lee reported that, in March 2022, the plaintiff returned from India and she continued to have ongoing shoulder issues. Shoulder range was “around actively to 150 degrees” and the left elbow remained to have a fixed flexion deformity of 10 degrees. He then noted that, in April 2022, the plaintiff had a lot of pain in the elbow and significant stiffness.[50]
[49]        The actual report in evidence does not have a date.
[50]        PCB 97.
45Then Mr Lee recorded that, in May 2022, the plaintiff reported to him that she had bilateral tennis elbows and her shoulder and neck remained the same. He said she was quite depressed.[51]

[51] Ibid.
46He then recorded his attendances through to the end of 2022. His report sets out his fluctuating findings when treating the plaintiff, including that, in December 2022, her left elbow was quite stiff, and her shoulder remained much the same. Finally, dealing with the January 2023 attendance, he said that the plaintiff’s left shoulder was then not too bad, while her elbows remained the same. He noted that the plaintiff had been away on an overseas trip at the start of the year and was due to return in March 2023.[52] He described her ongoing symptoms and made comments about work capacity and future treatment needs, to which I shall return in due course, but in summary he said:
“[The plaintiff] is able with her restrictions to perform light duties only on restricted hours. I believe she can work up to 15 hours a week mainly with administrative/office based work only ….
…
Under the claim [the plaintiff’s] main injury is her L Elbow. Indirectly from the injury she also suffered from neck pain and shoulder pain. There is minimal disc bulging on C5/6, C6/7 and shoulder impingement and adhesive capsulitis of the L shoulder.”[53]
[52]PCB 98.
[53] PCB 100-101.

47In addition to the treatment for her physical injuries, the plaintiff has also been referred, and undergone, psychological treatment. That psychological treatment was initially provided by Dr Lydia Brown, clinical psychologist, with a few sessions in early 2019[54] and then from 21 February 2022 with Ms Alexa Bailey Finlayson at Brain Matters in Preston, although treatment at that clinic has now been transferred to Ms Jessica Swann.[55]
[54]        PCB 138.
[55]        PCB 24.
48The evidence from the treating psychologists is relatively limited. Dr Lydia Brown described the plaintiff on 18 March 2019 as having developed “severe symptoms of anxiety, as well as moderately severe symptoms depression and stress”.[56] Ms Finlayson described the plaintiff at 14 July 2022 as having a diagnosis of “Adjustment Disorder with features of both Depression and Anxiety in the context of significant injury and lifestyle change”. She said that the mental health issues would likely persist if the plaintiff’s physical symptoms continued.[57]
[56]        PCB 138.
[57]        PCB 148.
49That concludes a summary of treatment and the relevant evidence from treating health practitioners. It confirms that the plaintiff suffered a fracture to the left elbow and an injury to the left shoulder (“the left arm injury”) and an adverse psychological reaction. The plaintiff has had two elbow surgeries, several injections into the left shoulder, as well as various specialist referrals. Since approximately mid-2020 her ongoing physical treatment has been conservative treatment with Dr Bekal and Mr Lee. That has included the use of over-the-counter pain-killing medication. There has been a relatively consistent reporting of symptoms that, to borrow a phrase from Mr Lee, have been “up and down” since the fall. In addition, the plaintiff has required psychological counselling and the use of anti-depressant medication.
Return to work and dismissal
50After the fall, the plaintiff had periods of time off work, particularly around her surgeries, and periods of time when she returned to work at Mercy Place on return-to-work plans. She never got back to her pre-injury employment or her pre-injury hours. She did not return to her second job at Blue Cross.
51One such return to work plan was dated 4 February 2019,[58] in which the plaintiff was to perform modified duties for twenty-one hours per week at Mercy Place commencing 4 February 2019. The evidence revealed that, at times, she worked the twenty-one hours,[59] but, at other times, she worked fifteen hours, noting that she had certification from Dr Bekal for fifteen hours per week of modified duties up to July 2021.
[58]Exhibit D3.
[59]        Transcript (“T”) 17, Line (“L”) 3.
52The plaintiff performed a variety of modified duties for the employer before and after the COVID-19 pandemic reared its ugly head. As discussed in the reports from Mr Lee, from approximately May 2020 and continuing into 2021, she performed a very light job for the employer conducting temperature checks of people entering Mercy Place, until those duties were withdrawn.
53In fact, the plaintiff’s return to work at Mercy Place ceased in July 2021. Her employment was then terminated by letter dated 30 September 2021,[60] because the employer considered that she was not then able to perform the inherent requirements of the food services assistant position and a suitable position could not be identified for her. The plaintiff has not worked since then.
[60]Exhibit P1.

The proceeding
54Against that somewhat lengthy introduction and summary of treatment, this is a serious injury proceeding brought pursuant to s325 of the Act, in which the plaintiff claims that the fall caused her to suffer a “serious” physical injury and a “serious” psychiatric injury.
55Specifically, the plaintiff claimed to have suffered a “permanent serious impairment or loss of body function” to the left arm.[61] In addition, or alternatively, the plaintiff claimed to have suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
[61]        T 2, L 27 ꟷ the defendant accepted that the impaired body function was that of the left arm.
56The proceeding was conducted in “the usual manner”. The plaintiff tendered affidavits and documents relied on by her. She gave oral evidence. The defendant tendered documents relied on by it. The defendant also tendered and played, in Court, covert video surveillance obtained of the plaintiff. I have read and considered all of the tendered evidence and I have considered the plaintiff’s oral evidence and the transcript of it, but I shall only refer to that material to the extent necessary for these reasons.
The pain and suffering concession
57At the commencement of the proceeding, the Court was informed the defendant conceded that the plaintiff had suffered a “serious injury” from both the physical injury to the left arm and the psychiatric response, such that she was entitled to the leave of the Court to commence a proceeding for pain and suffering damages.
58Implicit in the concession is an acknowledgement that the plaintiff had suffered a “very considerable” pain and suffering consequence from the physical and the psychiatric injury suffered because of the fall. This might be thought to be a sensible and pragmatic concession by the defendant in order to focus on the real issues in dispute, in circumstances where, objectively, the fall occurred, and the plaintiff suffered a fracture injury to the left elbow requiring repeat surgical intervention.
59Of course, a sensible and pragmatic concession is not to be used against the defendant on the remaining issue of pecuniary loss consequences. Nevertheless, it should not be lost in a consideration of work capacity that the plaintiff has a “serious injury” for pain and suffering purposes, as some of the pain and suffering consequences may translate across to restrictions for work “after injury”.
The employment concession
60The defendant made a further concession that the plaintiff could not return to her pre-injury employment,[62] although, from the thrust of the defendant’s submissions, that concession could fairly be confined to the claim based on the physical injury to the left arm, although, as will be explained, ultimately not much turns on that.
[62]        T 101, L 1-16.
The pecuniary loss test – legal principles
61Before dealing with the relevant evidence of work capacity, it is convenient to set out the relevant legal principles, which are not in dispute.
62In order to establish an entitlement for leave to commence a proceeding for loss of earnings damages, the plaintiff must first establish that the loss of earning capacity consequences from the compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being “more than significant or marked”, and at least “very considerable”, as per the narrative test set out in s325(2)(b) and (c) of the Act.
63The fact that the plaintiff cannot return to her pre-injury employment, as conceded by the defendant, in my view justifies a conclusion of a “very considerable” consequence to her, such that the narrative test is satisfied, which was also conceded by the defendant.[63]
[63]T 101, L 12-17.
64At the risk of repetition, this concession should also not be used against the defendant for the remaining issue of “after injury” work capacity, but a concession that the plaintiff cannot return to her pre-injury employment does immediately ask the question what the residual capacity for “suitable employment” is.
65Returning to the legal principles, next, upon establishing “very considerable” loss of earning capacity consequences, as the plaintiff has, she must then satisfy the statutory formula as contained in ss325(2)(e), (f) and (g) of the Act, namely, whether she has a loss of earning capacity of 40 per cent of gross earnings, measured as set out in s325(2)(f), and will permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more of her gross earnings, as required by s325(2)(e)(ii). It is this aspect of the proceeding that is the real contest. The defendant submitted that there are several light jobs that the plaintiff could now undertake, or undertake with limited retraining, if she was motivated to look for work. Therefore, the defendant disputed that the plaintiff satisfied the statutory formula.
66To satisfy the statutory formula in s325(2)(e)(i) and (f) of the Act, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a)   the gross income the plaintiff is earning, or is capable of earning, in suitable employment at the date of the hearing (“after injury earnings”); and
(b)   the gross income the plaintiff was earning, or was capable of earning, “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred”[64] (“without injury earnings”).
[64]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [70].
67As mentioned, the parties agreed the “without injury earnings” at $51,000 gross per annum. Sixty per cent of $51,000 is $30,600 per annum ($588.46 per week). Therefore, if the plaintiff now has a capacity for suitable employment that will be productive of “after injury earnings” of $30,600 gross per annum, then she fails to satisfy the formula and does not establish an entitlement to bring proceedings for pecuniary loss damages.
68Next, upon satisfying the statutory formula, the enquiry moves to s325(2)(e)(ii) and whether the plaintiff has proved a loss of earning capacity that will permanently be productive of financial loss of 40 per cent or more.
69The issue to be resolved is a factual dispute as to the plaintiff’s “after injury earnings”. The starting point to the resolution of that dispute is the nature of the plaintiff’s injury and the treatment she has required, as I have already set out. The next step is to consider the plaintiff’s evidence of her impairment and impairment consequences – in this case, with a focus on work capacity – and whether that evidence is reliable and accepted. On that note, before moving to consider her evidence, it is convenient to say a few words in general about her credit, to set the scene for the analysis of the evidence.

Credit
70As has been said many times in these types of proceedings, in assessing the “seriousness” of an injury, the credit of the plaintiff is of critical importance.
71The defendant submitted that the plaintiff “gave unsatisfactory evidence about several relevant matters which affect her credit”.[65] As I shall explain, I agree.
[65]        T 62, L 19-21.
72The issue of the plaintiff’s credit is central to the defence of this proceeding, consistent with the opening comments of counsel during final submissions on behalf of the defendant that:
“…the primary question that your Honour needs to determine in this case is whether the plaintiff satisfies the test for loss of earning capacity, but before I go to the proposed jobs from the IPAR report at defendant’s court book 119 and the medical opinions which support those jobs I’ll address you Honour on credit.”[66]
[66]        T 62, L 12-18.
73The defendant submitted that the plaintiff’s credit had been impugned because of her unsatisfactory evidence about several relevant matters, including:
·        driving;
·        walking;
·        her left arm function in general.
74The credit issues highlighted by the defendant mainly arose from covert video surveillance of the plaintiff.
75The defendant played in Court, and tendered,[67] eight relatively short sections of video surveillance obtained of the plaintiff at various times and dates in November 2022 and January and April 2023.
[67]Exhibit D1.
76The defendant admitted that it had the plaintiff under surveillance for a total of sixty-one hours over eleven days.[68] It tendered all the video surveillance that it captured of the plaintiff during that time. The inference is that for significant periods of time over those eleven days she was either inactive, or unable to be observed.
[68]T 58, L 22.
77I will discuss specifically some of the evidence from the video surveillance that was tendered. But dealing first with broad principles, video surveillance must be considered for both the content and the context. I must consider not only what the plaintiff is shown to do and what she says about it, but also other relevant matters, such as whether it was given to medical practitioners for comment, and the amount and period covered by the video surveillance.[69]
[69]        Church v Echuca Regional Health [2008] VSCA 153.
78But, in short, as indicated to counsel, the video surveillance in this proceeding could be said to be remarkable for being unremarkable. It neither proved nor disproved that the plaintiff had an injury.
79I shall discuss the issue of credit and the video surveillance in more detail, but before doing so, and to provide context, I will first set out the evidence of the plaintiff.
The plaintiff’s evidence
80The plaintiff swore two affidavits in this proceeding. The first affidavit was sworn on 29 April 2022.[70] In that affidavit, the plaintiff set out background matters, the circumstances of the fall and the treatment thereafter. Relevant to the issue of work capacity, she said:
[70]PCB 17.
“As I have indicated above, I have not been able to get back to work since July 2021. Dr Bekal is providing me with Centrelink certificates and WorkCover certificates stating I am fit for restricted duties only, not exceeding 15 hours per week.
After I ceased work, I did not go into receipt of weekly payments of compensation, but instead applied for and was granted Centrelink benefits in the form of a JobSeeker payment paid at $500 per fortnight. I have also applied for a Disability Pension although that has yet to be approved.
In order to qualify for Centrelink payments, I was required to look for jobs and through a vocational agency, IPAR, I applied for a number of jobs including work as a school crossing supervisor, at Woolworths/Coles in customer service and also the City of Whittlesea as a penalty officer. I have not been successful in obtaining work although having said that, with my left arm the way it is, I do not believe I am fit for any work to which I am suited. I have poor computer skills.
I have ongoing pain in both my left shoulder/neck area and left elbow. The pain radiates down my left arm. I have some pain in my low back which I also attribute to the fall.
I have restricted movement of my left arm and am not able to perform any heavy lifting with the arm.
I continue to see Stephen Lee, my physiotherapist, once a week and I have recently commenced hydrotherapy treatment as well.
I have also started seeing a psychologist at ‘Brain Matters’.
For my pain, I rely on Panadol and Nurofen.

Due to difficulties sleeping at night, which can be anywhere between 3 — 4 nights a week, I take sleeping tablets. I also take an anti-depressant, Escitalopram, in addition to high blood pressure tablets which I put down to my stress arising from the injury.
Due to my relative inactivity arising from my injury, I have put on a considerable amount of weight. I used to weigh less than 60kgs. I now weigh 75kgs.
I have difficulty driving, for example turning my neck to check for traffic and my doctor has recommended I do not drive. These days I tend to either rely on a taxi or have my family members drive me around. I do not do the big shopping anymore because of the pain in my left arm. I spend a lot of my time at home during the day. Sometimes, I might go for a walk of about 500 metres but even walking tends to aggravate my left arm.
I am certainly restricted in terms of many of the home chores. Tasks such as cleaning, cooking and dishwashing are now performed by my daughter and tasks such as washing and gardening are performed by my husband. Sometimes we engage the services of a cleaner.
The injury also impacts on my other day to day activities. For example, in the past I used to play cricket with the Holy Trinity Club in Thornbury. Because of my left arm injury, I was not able to continue playing cricket. For a while I was simply attending to watch although this caused me to be upset and I have even stopped doing that.
I used to enjoy going shopping and window shopping every week with my friends. Again, this is something I no longer do.

In the past I used to enjoy attending family functions and getting up and dancing. These days I find it very difficult dancing because of my left arm injury.
Even washing my hair can be difficult and my daughter and sometimes my husband help in this regard. Putting on tight clothing can be a struggle and generally around the home I tend to go around in loose clothing.
I consider that I have been seriously injured as a result of my injury due to my future loss of earning capacity and the effects of the injury on my lifestyle and enjoyment of life and I request that my application for serious injury be granted.”[71]
[71]PCB 20-22 at paragraphs [29]-[55].
81Then, in a further affidavit sworn 17 May 2023,[72] she said:
[72]PCB 23.
“In terms of dealing with the pain, I continue to have physiotherapy treatment once a fortnight with Stephen Lee. I was also attending hydrotherapy treatment once a fortnight up until December 2022 when funding for the hydrotherapy treatment ceased. I have recently had another 3 months of hydrotherapy treatment approved by the defendant's WorkCover insurer.
In terms of painkilling medication, I usually rely on Panamax, although for more severe pain I will take Brufen. I stopped taking the medications prescribed to me through my pain specialist when I found they were not working.
In addition, I continue to suffer from symptoms of anxiety and depression and stress because of my physical injury.

Up until recently, I was seeing psychologist, Alexa from Brain Matters. They have now assigned a new psychologist to me by the name of Jessica Sawan [sic]. Indeed, I have recently been referred to a psychiatrist and am awaiting approval for this from the defendant's WorkCover insurer.
I continue to take an anti-depressant on a daily basis.

I have not been able to get back to work since swearing my first affidavit nor have I looked for any work due to the fact that I do not believe I am fit for any work to which I am suited. In this regard, although I continue to receive Jobseeker payments of $500 per fortnight, my general practitioner is providing me with certificates exempting me from having to look for work.

I continue to suffer from interrupted sleep and indeed find myself spending a large percentage of the day in bed. I can lie down in bed anywhere between 4-5 times per day for at least an hour.
I remain restricted in terms of what I can do around the house. Although my daughter was assisting me a fair bit in the past, nowadays she finds herself busy due to the fact she is working as a nurse and is not able to help as much as she used to. Fortunately, I had my mother over from India for about a year and she was able to assist. After that, my sister was able to assist for about 3 months and following that, for the last 2 months or so, my husband's brother and his wife have been at home with us and assisting with home chores. I am fortunate to have family who have been able to help me.
In addition, up until about 7 to 8 months ago, I had a person supplied through the City of Whittlesea by Community Connections to come over to my place and assist, for example, taking me to the shops or accompanying me on walks.
In terms of walking, I am restricted because of increased pain and invariably if I do try and go for a walk, I will either hold my left hand up with my right hand for support or my husband will hold my left hand as we walk.
In terms of the weight gain I referred to in paragraph 48 of my first affidavit, this remains a problem for me and currently I weigh about 73kg.
I have not been able to resume playing cricket or indeed attend cricket matches as I referred to in paragraph 51 of my first affidavit.
I tend to spend a lot of my day at home sitting in my bedroom. It got to the point where my husband placed a television in the bedroom as I was not venturing out of there. I was not even going into the lounge room.
I find that due to weakness I suffer down my left arm, I am forever dropping things such as cups and bowls.
I have also become grumpy, irritable and indeed forgetful. Only recently I forgot to turn off the gas at home.
On one occasion in October 2020, I forgot where I parked my car when I went to pick up my son in Thornbury.

l also recall the day before I forgot where I parked my car. I was driving home and approaching a roundabout and, due to weakness in my left arm and difficulty holding onto the steering wheel, my car tyre slightly clipped the edge of the roundabout.
It got to the point where I mentioned the above to my doctor and he informed me I should no longer be driving and indeed it was at that point when he suggested that I see a psychologist.
I believe there was some miscommunication with my physiotherapist who recorded the above incident as a motor vehicle accident. It was not a motor vehicle accident at all. This may also have been mentioned by my then psychologist, Alexa, who I understand simply reiterated what she had read in my physiotherapist's report.
In addition to the above symptoms, I have also gone on to suffer from bilateral carpal tunnel syndrome which I attribute to my employment with the defendant following my work injury. I was meant to be on light duties. However during those 2 years for 4 hours a day, 3 days a week I was given the task of cutting vegetables. Constantly cutting, chopping and dicing vegetables, in particular vegetables such as pumpkin, placed considerable strain on my wrists so much so that I have been referred for decompression surgery to my right wrist initially although I am not sure when that will occur.
I consider that I have been seriously injured as a result of my injury due to my future loss of earning capacity and the effects of the injury on my lifestyle and enjoyment of life and I request that my application for serious injury be granted.”[73]
[73]PCB 25-26 at paragraphs [5]-[25].
82In addition, the plaintiff tendered an affidavit from her daughter, Ms Snower Saini, sworn 14 March 2023[74] and an affidavit from her husband, Mr Kamal Kishore, sworn 14 March 2023.[75] Notwithstanding that the deponents were not required for cross-examination, the evidence in these affidavits must be considered in light of an assessment of the reliability of the plaintiff’s evidence.
[74]PCB 28.
[75]PCB 32.
83Returning to the plaintiff’s evidence, she was cross-examined broadly about the contents of her affidavits, with a particular focus on her level of day-to-day activity and her attempts to return to work with the employer.
84The plaintiff was cross-examined about whether she had performed reception duties for the employer. She disagreed that she had. She explained how she would provide residents with an iPad, or something similar, for them to communicate with family members, seemingly during the COVID restrictions. She then described doing the temperature checks.[76] It was put that she was performing customer service for the employer up until her employment was terminated, to which she said, “[n]ot agree with the customer service, just greeting people when they enter the facility.”[77]
[76]T 12, L 16.
[77]T 13, L 7-8.
85The plaintiff was cross-examined about the hours she worked on modified duties with the employer. She agreed that, at times, she reached twenty-one hours, but at times it went back down to the fifteen hours. The thrust of the cross-examination was that she was capable of more than fifteen hours, consistent with the fact that, at times, she worked twenty-one hours. She explained that her condition was such that she was not capable to work five days in a week, so Dr Bekal had decreased her hours to fifteen hours, with the Tuesday and Thursday break.[78]
[78]T 17, L 13-15.
86It was put to her that, if the employer had not terminated her employment, she would have continued working there, and she agreed,[79] but she disagreed that she would have had a go at increasing her hours.[80]
[79]T 20, L 8.
[80]T 20, L 11.
87The plaintiff was then cross-examined about the symptoms in her left arm. She confirmed what she had said in her affidavits that her left arm is weak, so that she often drops things when holding them with her left hand.[81] She confirmed the history she had given to doctors, such as Dr Robyn Horsley and Mr Ash Chehata, were accurate. As an example of the cross-examination, she was asked whether her evidence was that her left arm, more often than not, is so weak and sore that, if she were to pick something up, even something very light, like a cup or a bowl, she was likely to drop it. She agreed that was her evidence and that her arm had been like that from December 2017 up until the present date.[82]
[81]T 20, L 21.
[82]T 21, L 15-21.
88The plaintiff was cross-examined about what she did to protect her injured left arm. She said sometimes she used her arm, but not heavy objects, and that she avoided lifting objects with her left arm. She said that she avoided using her left arm to push or pull, because she was likely to get pain and gave, as an example, that it was difficult to open doors with her left hand.
89The plaintiff was cross-examined about what she said in her affidavits about difficulty walking. She confirmed that just walking can bring on the pain in the left elbow and shoulder and that she was limited to an absolute maximum of about 500 metres.[83]
[83]T 23, L 4-10.
90Next, the plaintiff was questioned about driving and her evidence that she had not driven for a long time due to pain in the left elbow and left shoulder. She was cross-examined about telling Dr Horsley that she stopped driving in 2018. She said that was not correct. She explained that her doctor eventually told her not to drive. Eventually, she nominated 2021 as the year she stopped driving and said “[b]ecause some time I drive. I totally stop, I can’t remember date, but when Doctor said not to drive, after that I haven’t drive”.[84] She was asked whether she had driven at all since she stopped work with the defendant and she said that she had not.[85]
[84]T 25, L 9-12.
[85]T 25, L 23.
91The plaintiff was then cross-examined generally about her level of activity. She said that she spent most of her day at home[86] and, in fact, spent a lot of time in bed. She was asked whether she found it difficult to get out and do anything much at all now, due to the left elbow and left shoulder pain, and was then asked whether it was her evidence that she practically does not use the left arm at all, to which she agreed.[87]
[86]T 26, L 28.
[87]T 27, L 1-9.
The video surveillance
92It was at this point in the cross-examination that the defendant played the video surveillance. The video surveillance revealed that some of the plaintiff’s evidence was at best wrong, and at worst, misleading.
93First, she was seen driving on 13 January 2023, without any apparent restriction for turning her head to check traffic or driving in general. This contrasts with her unequivocal evidence of having ceased driving. She said that “I’m not driving very far but some time”, accepted that she could drive if she needed to and that her oral evidence of having ceased driving in July 2021 was not accurate.[88]
[88]        T 31, L 20-31; T 32, L 1-3.
94The only available conclusion is that the plaintiff deliberately gave false evidence of no longer driving.
95Similarly, the evidence from her daughter that the plaintiff “does not drive anymore”[89] must be inaccurate, as must the evidence from the plaintiff’s husband that –
“My wife will not initiate leaving the house on her own accord and does not drive anymore. My daughter, son and I drive [the plaintiff] everywhere she needs to go. On the odd occasion that we cannot drive her, my niece will drive my wife.”[90]
[89]        PCB 29.
[90]        PCB 33.
96I cannot say that the daughter and husband deliberately gave false evidence. Their evidence may be based on the limitations of their direct observation of the plaintiff and otherwise on an acceptance of what she has told them. At the end of the day not much turns on this, as the result is the same, namely that the weight I attach to their evidence is lessened by the unreliability of the plaintiff.
97Second, she accepted that the video depicted her walking for longer than 500 metres. She was cross-examined about her ability to walk to the shops, her walking tolerances and whether she had exaggerated in her affidavit and earlier oral evidence about her problem walking. It was put that she can walk fairly easily when she chose to do so, to which she replied “No. I have pain that time as well but I – I’m trying to walk”.[91] She explained in re-examination about how she held her arms at times to assist with walking and how her GP had encouraged her to push herself and to walk.[92]
[91]        T 30, L 1-3.
[92]        T 56, L 21-31.
98The video depicted her to walk at a relatively normal pace to go about ordinary daily activity such as shopping, banking, and walking to or from the local shops. It did not demonstrate her to run or walk in a vigorous manner and for parts of the video she did appear to walk with her hands behind her back, to either support her low back, or to support her arms. She did not obviously appear to be in pain, but insofar as I could detect any useful evidence of her demeanour from the videos, she did not appear happy or animated.[93] On one view, the video of her walking neither proved or disproved she had a sore arm, or was depressed, but it did tend to a conclusion that her physical tolerance for walking is better than what she had said in some of the other evidence.
[93]        T 30, L 11-20.
99Third, the video revealed the plaintiff to use her left arm for ordinary activity such as carrying a vacuum cleaner, shopping, opening car doors and carrying light items. She accepted the obvious, namely that the video had depicted her engaging in those activities. She accepted that when doing those activities, the video did not show her to have any signs of pain or distress.[94]
[94]        T 28, L 11.
100Again, the activities that she was shown to engage in on the video neither proved nor disproved that she had a left arm injury. She was not seen to lift or carry anything heavy, or to do any vigorous activity with the left arm. For much of the video she was wandering around the shops and holding a bag or a phone in her left hand. But, again, the video did tend to support a conclusion that she has a greater ability to use the left arm for ordinary, mundane daily activity and better that what she had said in some of the other evidence. She did not appear to have any trouble holding things in her left hand, or to avoid using her left hand/arm. She is still able to shop, assist family and the like.
101I conclude that the video does impugn the plaintiff’s credit. The thrust of her affidavit and oral evidence, and what she said to the medico-legal witnesses, was of little or no use of the left arm and that she spends most of her time at home, in her bedroom. The video undermined the reliability of that evidence.
Travel to India
102It transpired during her oral evidence that in the last few years, the plaintiff had been on several trips to India to visit friends and family and to attend weddings. This is relevant evidence that she omitted from her affidavits, although it is referred to in some of the medical evidence.
103The plaintiff conceded during cross-examination that she can travel overseas when the occasion arises, and she is able to enjoy herself during those trips.[95] The plaintiff is entitled to travel to India, even if she has a “serious injury”. However, the ability to do so casts doubt on her evidence of limitations for activities such as socialising or leaving her house.
[95]        T 55, L 3-6.
The plaintiff’s credit was impugned but not destroyed
104For the reasons discussed, I conclude that the plaintiff exaggerated her impairment consequences, such as for driving, shopping, walking, and socialising.
105The video surveillance, while unremarkable, does tend to the conclusion that the plaintiff has a better capacity to use her left arm for day-to-day activity than what she had said in her evidence. The video surveillance does not support a conclusion that she has a virtually useless left arm.
106The ability to undertake lengthy overseas travel, to join in and enjoy boisterous wedding celebrations, suggests that her evidence about her lack of socialising and spending most of the time in her bedroom, is also exaggerated.
107Because of the unreliability of aspects of the plaintiff’s evidence, it is necessary to carefully consider the reliability of the evidence for the issue in dispute, namely that of her “after injury” work capacity.
108But I do not go so far as to conclude that the plaintiff’s credit has been impugned to an extent that her evidence must simply be rejected.
109First, the issue of credit must be assessed in the context of the concessions made by the defendant about pain and suffering and work consequences.
110Second, her credit must also be assessed in the context of the evidence from the treating practitioners, many of whom have treated her over several years and in the case of Dr Bekal, before and after surgery and before and after attempts to return to work. The evidence from the treaters is objective evidence of impairment consequences and incapacity for work that I consider I can rely on, even after a consideration of the video surveillance.
111Third, the defendant did not provide the video surveillance to any of the doctors for comment. I shall discuss this in more detail when dealing with the medical evidence.
112Fourth, the video surveillance was for a relatively short period of time, obtained over an eleven-day period. It is relevant that she was not seen to be particularly active over that time.
113Fifth, the video surveillance did not show the plaintiff to engage in any particularly physical activity. In that sense, it did not depict anything completely at odds with that the doctors, especially the treating doctors, had observed in their evidence.
114In short, the plaintiff was wounded by the contents of the video surveillance, but it was not a fatal wound.

Medico-legal evidence (physical injury)
The plaintiff’s evidence
(i) Dr Robyn Horsley
115The plaintiff was examined on two occasions by Dr Robyn Horsley, an occupational physician, at the request of her solicitors.
116In her first report dated 9 June 2022,[96] Dr Horsley obtained a social, educational, and occupational history, as well as a history of the fall. Dr Horsley recorded a history of current symptoms of the plaintiff experiencing chronic pain throughout the neck, left shoulder, left elbow and left arm, varying from 5 to 6 out of 10, up to 11 out of 10, and most of the time at 8 to 9 out of 10.[97] Dr Horsley also obtained a history that the plaintiff “primarily uses her right hand”, although then had difficulty with the right hand due to diagnosed carpal tunnel, which I note is not pressed as a consequence of either the fall or the left arm injury, despite what the plaintiff said about carpel tunnel in her most recent affidavit.
[96]PCB 169.
[97]PCB 173.
117Dr Horsley reported the plaintiff as saying that her functional tolerances were poor, that she was spending most of her days in bed, with a sitting tolerance of 10 to 15 minutes, static standing tolerance of 10 minutes, and a walking tolerance of 500 metres. Dr Horsley had a history that the plaintiff stopped driving in 2017.[98]
[98]PCB 174.
118Dr Horsley then reviewed various reports and radiology, including vocational assessment reports prepared by IPAR. In respect to summary and diagnosis, Dr Horsley said—
“Ms Saini sustained a fall on the 19^th December 2017. She sustained a radial head fracture with up to 2mm of depression. She was treated conservatively initially and then three weeks later, a follow up x-ray suggested further displacement. Mr Chua took her to theatre on the 25% January 2018 for a left elbow open reduction and internal fixation of the radial head fracture. She was followed up with physiotherapy. She developed ongoing left shoulder disability and a persistent reduction in range of motion in the left elbow.
Mr Chua treated her with two subacromial injections into the left shoulder and took her back to theatre on the 22^nd October 2018 for a left elbow radial head removal of metalware.
By March 2019, Ms Saini had developed a chronic regional pain syndrome. Mr Chua recommended referral to pain management. She consulted a Pain Specialist, Dr Young. She first consulted him on the 2^nd September 2019. He ceased involvement around February 2020 with COVID. She had three suprascapular injections with little benefit. There has been no further involvement.
Ms Saini presents with ongoing and significant disability related to the cervical spine, left shoulder, and left elbow. She has developed a chronic regional pain syndrome.
She has a significant reduction in range of motion. She presents with significant disability.

A Beck Depression Inventory today gave a score of 44, suggestive of severe depression with mild suicidal ideation. A Beck Anxiety Inventory gave a score of 43, suggestive of severe anxiety. She experiences panic attacks every couple of days.
This was consistent with her overall presentation.”[99]
[99]PCB 177 – 178.

119Dr Horsley then expressed the opinion that the plaintiff had suffered a fracture of the radial head and progressed to a Chronic Regional Pain Syndrome and a—
“… virtually non-functional left arm with persistent and significant reduction in range of motion in the left shoulder and to a lesser extent the left elbow.”[100]

[100]PCB 178.
120Dr Horsley then said that for the plaintiff to return to work, she would need to return to right-sided duties only because “she has a basically non-functional left arm”.[101]
[101]Ibid.
121Dr Horsley then gave further recommendations regarding treatment, including that the plaintiff would benefit from assessment by a psychiatrist.
122Pausing, Dr Horsley’s opinion, obviously expressed on the information given to her, that the plaintiff has “a basically non-functional left arm”, is at odds with the video surveillance and is not one that I am prepared to accept.
123Dr Horsley then re-examined the plaintiff and provided a second report dated 23 March 2023.[102] Amongst the matters then set out by Dr Horsley in respect to the plaintiff’s current problems was the recent referral to the alternate psychologist and that the plaintiff had recommenced physiotherapy on a fortnightly basis, as well as a swim pass to attend hydrotherapy, which she did on a Tuesday and a Thursday. Dr Horsley also reported that the plaintiff’s husband takes her for a 15 minute walk, holding her hand, two to three times per week and that “she will only walk for approximately 15 minutes”.[103]
[102]PCB 182.
[103]PCB 185.
124Pausing again, at several times on the video surveillance, the plaintiff was in the company of her husband, but he was not holding her hand, or seen to provide any encouragement to her to walk. At other times, she walked on her own without her husband anywhere to be seen.
125In her second report, Dr Horsley obtained a history that the plaintiff primarily used her right hand, and that she was then booked in through the public system for carpal tunnel surgery. Dr Horsley noted the plaintiff’s functional tolerances to be poor because “she is spending a large percentage of her days in bed”.
126Dr Horsley recorded her clinical examination findings as that the plaintiff held her left arm by her side throughout the interview and examination, with her left elbow semi-flexed. There was gross restriction of left shoulder movement with the avoidance behaviour exhibited.[104]
[104]PCB 187.
127Dr Horsley then said that unfortunately the plaintiff’s physical disability had increased over time, her functional tolerances were poor, and her progress for recovery was poor. She said the plaintiff had developed increasing mental health issues and that the plaintiff was progressing down the path of chronic invalidity. Dr Horsley then said—
“Ms Saini’s overwhelming presentation lies in the psychiatric realm, based on her presentation today. The involvement of a treating Psychiatrist, working in conjunction with her treating Psychologist is indicated.”[105]
[105]PCB 189.
128Dr Horsley expressed the opinion that in terms of the left arm alone, the plaintiff presented with a non-functional left arm related to her Chronic Regional Pain Syndrome, protective behaviours, and mental health issues. She said the plaintiff presented with no realistic or reliable capacity for work.[106]
[106]Ibid.
129The reliable evidence does not support the plaintiff’s presentation to Dr Horsley with a virtually non-functioning left arm. In the circumstances, I attach less weight to Dr Horsley’s opinions, especially regarding work capacity, although in fairness to Dr Horsley I get the sense that she was also concerned about whether the plaintiff’s evidence was reliable in the context of the comment in her second report that the plaintiff’s overwhelming presentation lay in the psychiatric realm.
(ii) Mr Ash Chehata
130Mr Ash Chehata is an orthopaedic surgeon who examined the plaintiff at the request of her solicitors and provided a report dated 19 August 2022.[107] Mr Chehata obtained a history of the fall and of the plaintiff’s current function. He recorded the plaintiff now struggled to walk, or lie on the left side. He recorded that the plaintiff had constant elbow pain, neck pain and pain in the left hand. He noted ongoing regular physiotherapy and hydrotherapy, and the use of antidepressant medication.
[107]PCB 191.
131Mr Chehata obtained a history that the plaintiff struggled to dress and shower herself, was unable to walk more than 500 metres, stand for longer than 30 minutes due to ongoing left shoulder pain, and struggled to lift more than 2 kilograms. He recorded the plaintiff telling him that she drops numerous things in her left hand, and was assisted by her husband and children for many domestic duties.
132On clinical examination, Mr Chehata found the plaintiff able to fully extend with full supination and pronation. There was no obvious wasting across the left arm or forearm. He found the left shoulder was markedly restricted.
133Mr Chehata diagnosed the fractured radial head with the development of a likely adhesive capsulitic picture in the left shoulder and ongoing development of chronic pain.
134Regarding work capacity in the broad, Mr Chehata said—
“Her present capacity is likely to revolve around part-time work, a few hours per day, on restricted and modified duties, particularly as she was able to perform light duties for a number of years before being made redundant last year.
…
The prognosis is guarded due to a multifactorial presentation with underlying psychiatric and mental health issues.”[108]
[108]PCB 195.

135Mr Chehata then commented specifically on various identified jobs. He said —
“I have looked at the employment prospects by IPAR and it is unrealistic to expect her to return back to these normal duties. It is only unless there is a possibility of her returning back on very light duties that this would be possible. A personal care attendant or chef is impossible and hairdressing or cooking again is impossible. A parking attendant or crossing supervisor is difficult to believe, even a receptionist, call centre operator or data entry operator are all difficult, considering her ongoing left shoulder pain, particularly when she feels that she can no longer sit, stand or walk for long periods of time.[109]
From my perspective, I think that she has a significantly reduced capacity and although she would be able to return back to some form of very minor light duties, I think this would be at the most on a part-time basis a few hours per week. This was ideal in the scenario as a COVID-19 inspector taking temperatures and this is probably the only likelihood for her employment prospects.”[110]
[109]Ibid.
[110]PCB 196.
136Mr Chehata obtained a picture of disability, but not quite the picture of chronic disability that was presented to Dr Horsley. That may explain why he did not rule out a return to some form of very minor light duties on a part-time basis.
137I consider that Mr Chehata obtained a more accurate picture of the plaintiff’s level of day-to-day function than did Dr Horsley. Consistent with Mr Chehata’s opinion, I consider that the plaintiff does have a residual capacity for some light work. I shall return to discuss this in more detail after considering the balance of the medical evidence.
The defendant’s evidence
(i) Mr Michael Dooley
138Mr Michael Dooley is an orthopaedic surgeon who examined the plaintiff at the request of the defendant and provided a report dated 30 November 2022.[111]
[111]Defendant’s court book (“DCB”) 14.
139Mr Dooley obtained a history of the fall and of the plaintiff’s complaints, recorded by him as “constant ongoing pain in the region of her neck, left shoulder and left elbow” and that the plaintiff was then currently taking Panadol and Brufen for her pain.
140Mr Dooley conducted a physical examination and reviewed available radiology. He then set out his diagnosis, clinical impression, and opinion. He said that based on radiology reports (but not on viewing images), there had been a mildly displaced radial head fracture for which the plaintiff had undergone surgery. He said that overall, she had regained a good range of motion but that he would expect her to note some ongoing intermittent pain, but no further orthopaedic treatment was required.
141Mr Dooley also said it was likely that the plaintiff had suffered bruising in the region of the arm and left shoulder because of the fall, but he did not believe that she had sustained a dislocation or rotator cuff type injury. However, he accepted that she noted pain in those regions.
142In addition, Mr Dooley said the plaintiff had an understandable psychological reaction to her situation, which was influencing her ongoing symptoms.[112]
[112]DCB 17.
143In respect to capacity for work, Mr Dooley said—
“I do not believe that Mrs Saini would be fit to carry out her pre-injury duties, either now or in the future. From an orthopaedic point of view only, she has a physical capacity to carry out light physical work and clerical type work. I believe that she would have a physical capacity to carry out light duties cooking type work and vocational education teaching in relation to cooking. Return to suitable work would need to be on a graduated basis.”[113]
[113]Ibid.
144Mr Dooley then provided a further report dated 7 March 2023 in which he was asked further questions about work capacity.[114] He said that from an orthopaedic point of view, the plaintiff would have a physical capacity to carry out the identified suitable employment on a full-time basis. He said he believed that a return to work should be on a graduated basis and that the plaintiff would ultimately have the capacity to increase her hours to full-time. He recommended the plaintiff commence at two days per week, and then after a period of four to six weeks, she would be able to increase to three days per week, and then after a similar period, to four days per week, and then to five days per week.[115]
[114]DCB 19.
[115]DCB 19-20.
(ii) Dr Joseph Slesenger
145Dr Joseph Slesenger is a specialist occupational physician, who has examined the plaintiff at the request of the defendant (or its agent).
146Dr Slesenger’s first report is dated 13 March 2018,[116] at a time when the plaintiff had not returned to work and she still had the metalware implanted after the initial surgery.
[116]DCB 21.
147At that time, Dr Slesenger said he anticipated a resolution of left shoulder symptoms over the next 3-4 months, but that the left elbow was more difficult to assess. He noted she had been recommended to undergo further surgery, but that was outside his area of expertise.[117] He said that he could not say when the plaintiff could return to pre-injury duties or hours as the decision with regard to surgery was outside his area of expertise. He recommended she return to alternate duties immediately with restrictions on the physical use of the left arm.[118]
[117]DCB 27.
[118]DCB 28.
148Dr Slesenger provided a second report dated 27 February 2020, after he re-examined the plaintiff.[119] By way of progress, current symptoms, and function, he noted the further surgery to remove the metalware and the plaintiff advising him of residual pain, stiffness with some restriction to the range of left elbow movements. He recorded that the plaintiff told him she continued to have difficulty lifting on the left side. He noted persistent left shoulder symptoms. He also noted the plaintiff had returned to work and was then working five and a half hours a day, four days a week, performing light meal preparation, light shopping and making milkshakes. He otherwise described that she had basic communication skills.[120]
[119]DCB 31.
[120]DCB 35.
149Dr Slesenger then conducted a clinical examination, reviewed investigations, and expressed his opinion as to the assessment of the plaintiff’s condition. He noted the radial fracture, for which the plaintiff had undergone surgery and subsequent removal of the hardware. He described “chronic left elbow pain with evidence of residual left epicondylitis”. He also said that the plaintiff had a possible dislocation of the left shoulder and subsequent development of left adhesive capsulitis (with evidence of rotator cuff tear).[121]
[121]DCB 38.
150Then in respect to capacity for employment, Dr Slesenger said—
“I am of the opinion that Mrs Saini cannot return to unrestricted pre-injury duties, working pre-injury hours.
I am of the opinion that Mrs Saini retains capacity for work with restrictions, namely:
No push, pull, carry or lift over 5 kg.
No repetitive elbow and shoulder tasks.
No sustained forward reaching.
No over shoulder reaching.”[122]
[122]DCB 38.

151Dr Slesenger then reported for the third time on 16 August 2022, again after consulting with the plaintiff.[123] He commenced that report by repeating the previous matters of history and the like, as set out in his earlier reports. He then noted current treatment to be attendance at the general practitioner for certification and medication, as well as physiotherapy. He obtained a history that the plaintiff spent her days indoors, watching TV and lying in bed, but that she would attend to shopping outings “with a disability support worker, provided by the City of Whittlesea on a monthly basis. She does not engage in other domestic duties.”[124] He also obtained a history that the plaintiff ceased driving a year ago.
[123]DCB 41.
[124]DCB 51.
152Dr Slesenger again conducted a clinical examination. He reviewed various medical reports, including some that are not otherwise in evidence. He then opined that the plaintiff continued to present with residual left (non-dominant) shoulder and elbow pain with associated restriction to her range of left shoulder and elbow movements. He then repeated his diagnosis and answered various questions. He said he had some concerns with regard to the plaintiff’s presentation and that there was at least in part a functional element to her presentation.[125] He then said that the plaintiff could not return to her pre-injury duties and was unlikely to do so in the foreseeable future. But he said the plaintiff could return to work, performing duties with restrictions, namely:
·        no push, pull, carry or lift over 5 kg
·        no repetitive elbow and shoulder tasks
·        no sustained forward reaching
·        no over-shoulder reaching
and that the plaintiff returns to work four hours a day, four days a week, increasing to pre-injury hours over six to eight weeks.[126]
[125]DCB 57.
[126]Ibid.
153Dr Slesenger then considered various identified jobs and expressed the opinion that the plaintiff could return to employment as an administration officer/general clerk; receptionist; call centre operator.
(iii) IPAR vocational assessments
154The defendant tendered and relied on three vocational assessment reports from IPAR, being reports dated 3 March 2020,[127] 14 April 2020,[128] and 18 July 2022.[129] Each of those reports were prepared by Ms Chloe Mutimer, a vocational rehabilitation consultant.
[127]DCB 83.
[128]DCB 102.
[129]DCB 119.
155The relevant evidence, and that upon which the defendant focussed, was in the third report, that is, the report dated 18 July 2022. In particular, the defendant cross-examined the plaintiff and made submissions that three jobs discussed in that report were “suitable employment” for the plaintiff “after injury”.
156The jobs identified were as “suitable” by Ms Mutimer in the report of 18 July 2022 were as an administration officer or general clerk;[130] receptionist;[131] or call centre operator[132] (“the IPAR jobs”). These were the jobs considered by Mr Dooley and Dr Slesenger and said by them both to be “suitable employment” options “after injury”.
[130]DCB 127.
[131]DCB 131.
[132]DCB 138.
157As mentioned, the plaintiff was cross-examined about whether she now had the capacity (physical and intellectual) to undertake one or the other of the IPAR jobs.[133]
[133]T 38-41.
158Broadly, the plaintiff gave evidence that she would not be able to do one or the other of those jobs. While she agreed it would assist if she had some flexibility to sit and stand as needed, she said she was not certain she would be able to sit long enough to do the job. She emphasised her lack of proper computer skills and said during cross-examination, “I have not enough knowledge with the computer”.[134]
[134]T 40, L 4-5.
159The plaintiff was cross-examined about whether, in effect, she would give one or the other of those jobs a go and, if so, for how many hours she might be able to work. She said “I’m not sure I can do 25 hour or 15 hour or less than 15 hour until I try”,[135] and she repeatedly emphasised her lack of proper typing skills and her lack of good English.
[135]T 41, L 28-31.
160In re-examination, the plaintiff explained the duties she performed on return to work plans with Mercy Health and that it did not involve office work. She was asked if she had ever done office work and she said “No”.[136] She was asked about her computer skills and explained how she was a one finger typist.[137]
[136]      T 56, L 16.
[137]      T 57, L 15.

What is the “after injury” earning capacity in “suitable employment”?
161As mentioned earlier, I consider Mr Chehata was correct when he said the plaintiff “would be able to return back to some form of very minor employment”.[138]
[138] PCB 196.
162Mr Chehata’s opinion is, to some extent, consistent with the certification and opinion from Dr Bekal that the plaintiff could undertake fifteen hours per week of modified duties.
163Mr Dooley and Dr Slesenger accept that the plaintiff could not return to her pre-injury employment. While they opined that the plaintiff could commence a graduated return to work in any of the IPAR jobs and then build up to full-time hours, they placed physical restrictions on the type of work the plaintiff can perform “after injury”.
164It should be clear that much of the thrust of the defence to this proceeding was built around what was shown in the video surveillance, yet, as mentioned earlier, the defendant chose not to ask Mr Dooley or Dr Slesenger to view and comment on the video. That is a forensic decision that the defendant was entitled to make. It may be that video surveillance can at times be such a ‘knockout blow’ – such as evidence of someone working when they have given evidence of being off work – that there is no need to ask a doctor for comment. But the video evidence in this proceeding is not such a scenario. Rather, I consider that the video confirmed what Mr Chehata, Dr Bekal, Mr Dooley and Dr Slesenger said, namely of some restriction for work and day-to-day activity, but not of a useless left arm.
165Therefore, what remains to be decided is what is “suitable employment” for the plaintiff “after injury” and for how many hours per week can she perform such work.
166The starting point is the definition “suitable employment”. Suitable employment is defined in the Act as –
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)having regard to the following—
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii)the nature of the worker's pre‑injury employment;
(iii)the worker's age, education, skills and work experience;
(iv)the worker's place of residence;
(v)any plan or document prepared as part of the return to work planning process;

(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker;

(b)regardless of whether—
(i)the work or the employment is available; or
(ii)the work or the employment is of a type or nature that is generally available in the employment market;”

167The plaintiff submitted that “suitable employment” required a consideration of factors beyond simply the physical capacity to perform a job. In support of that submission, the plaintiff relied on what was said in Richter v Driscoll[139] -
[76]Third, we agree with the applicant’s submission that return to work in employment, so understood, requires more than that a physical capacity to engage in a task or tasks. That is because there is more to an ability to work in employment—‘ability’ being converse of ‘inability’, which appears in the definitions of ‘no current work capacity’ and ‘current work capacity’—than the ability to perform a task that happens to be required in that employment. The definition of ‘suitable employment’, which falls for consideration in the context of ‘no current work capacity’, plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise, paragraphs (a)(ii), (iii) and (iv) would have no work to do.”
[139][2016] VSCA 142 at paragraph [76].

168Richter concerned a claim in respect of statutory benefits under the Act and so some care is needed before transposing what was said in Richter to a claim for “serious injury”. So much appears to have been acknowledged by the Court of Appeal in the footnote to Harris v DJD Earthmoving Pty Ltd[140] where the court said –
“Since the hearing, this Court (Ashley and Kaye JJA, Osborn JA agreeing) has decided Richter v Driscoll [2016] VSCA 142. That case related to a claim for statutory benefits under the Act in respect of a worker said to have ‘no current work capacity’ (as defined), a statutory concept that involved the same definition of ‘suitable employment’ as applied in the present case. In Richter v Driscoll, at [106], their Honours held that the definition of ‘suitable employment’ was such that the medical panel dealing with the matter in that case was ‘required to consider whether the entirety of the applicant’s relevant personal circumstances — that is, her injury-caused incapacity and other relevant personal circumstances which we have discussed — meant that she would likely be unsuccessful in obtaining employment because she had nothing “merchantable” to sell’. Further, there are indications in Richter v Driscoll, especially at [80], that their Honours did not consider that Barwon Spinners required that a different approach be taken to the question of ‘suitable employment’ in serious injury applications. However, for the avoidance of doubt, we confirm that, in the present case, in fairness to the respondent, we have assumed the correctness of the position advanced by the respondent (and not squarely contradicted by the applicant), namely that the test is one of physical capacity, not employability, in serious injury applications. However, the outcome would be the same in the matter before us regardless of the proper approach to be taken to the questions of statutory construction involved. Accordingly, it has not been necessary for us to form any view for ourselves on those questions, and we have not done so.”
[140][2016] VSCA 188.
169The care in adopting what was said in Richter arises, in part, out of s325(g) of the Act, which specifies that –
“(g)a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining—
(i)has; or
(ii)after rehabilitation or retraining, would have—

a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;”

170s325(g) of the Act requires the court to consider both the worker’s capacity for “suitable employment” after the injury and the reasonableness of the worker’s attempts to participate in rehabilitation or retraining in a consideration whether a worker has a capacity for any employment.
171In this proceeding, the defendant did not suggest that the plaintiff had failed to undertake reasonable attempts at rehabilitation or retraining. It should be remembered that she did participate in return-to-work plans prepared by Mercy Health.
172Rather, first, the defendant submitted that the plaintiff did not have a motivation to return to work because she is currently in receipt of Centrelink payments. That is not a submission that I accept. It sits uncomfortably with the fact that the plaintiff was seemingly well-motivated and working two jobs at the time of the fall. She attempted a return to work at Mercy Health including between surgeries and she remained compliant with return-to-work plans until her employment was terminated. In such a scenario I do not consider the fact that she is now in receipt of Centrelink payments to demonstrate she lacks motivation and is now in effect happy living the good life in receipt of Centrelink payments.
173The defendant’s submissions, however, went beyond motivation. Second, the defendant submitted that the plaintiff had the physical capacity for the IPAR jobs and to the extent that she lacked any of the educational requirements for those jobs she was well capable of retraining for any of those roles.[141]
[141]T 75, L 14-16.
174To determine whether the plaintiff has established the requisite loss of earnings, I am required to consider the plaintiff’s physical restrictions for work together with the matters set out in the definition of “suitable employment” including her age, education, skills and work experience. But I cannot go so far as to consider the “employability” of the plaintiff, or whether she would be capable in the open labour market of obtaining employment. In other words, it is her capacity for “suitable employment” that must be considered and not a broader concept of her employability, or ability to obtain work.
175Despite the unreliability of aspects of her evidence, the plaintiff gave what I consider to be candid oral evidence about her lack of computer skills, consistent with the objective fact that she had never performed an administrative job since moving to Australia. Despite the suggestion during cross-examination that she had undertaken administrative or reception duties after injury, it was clear that she had not. The employer created a made‑up job during the height of COVID-19 restrictions, to assist the plaintiff to return to work, for which they should be commended. But nothing that the plaintiff did after injury translates across to the skills needed to perform administrative work.
176Further, while the plaintiff has reasonable English language skills, during her oral evidence it was obvious that English is not her first language. Her work history in Australia is in work of a type that could broadly be described as manual or unskilled (in the sense of not requiring formal education qualifications) type employment. That is employment that the defendant conceded the plaintiff can no longer perform. Work involving repetitive use of the left arm to cook or clean would now be unsuitable.
177The plaintiff requires ongoing regular physiotherapy. She continues to use over-the-counter painkillers on a regular basis to manage her left arm pain. With some reservation, I accept her evidence that the more active she is, the more pain she has in her left arm. I consider it would be difficult for her to perform full-time administrative duties that required the full and unrestricted use of her left arm, even if she had the education, training, or aptitude for such work, which on my assessment of her in the witness box, she does not and will not be able to attain.
178Based on my assessment of the evidence, that the plaintiff has a residual capacity to perform some light employment. I consider that capacity, on balance, to be for 15 hours per week, consistent with the certification from Dr Bekal and my consideration of the opinions from Mr Chehata, Mr Dooley and Dr Slesenger. This conclusion is also consistent with the fact objective that when she tried more than 15 hours as part of return-to-work plans at Mercy Health she had an increase in left arm symptoms and a reduction back down to 15 hours, in consultation with Dr Bekal.
179I acknowledge that Mr Dooley and Dr Slesenger both consider the plaintiff capable to commence “suitable employment” on part-time hours and to then increase her hours. I respect those opinions, but upon a consideration of the whole of the evidence, for the purposes of a gateway provision, I do not accept that she will be able to work more than 15 hours per week. I conclude that the plaintiff would not be physically capable of progressing beyond 15 hours or to full-time hours.
180The next issue is whether she has the capacity to perform fifteen hours of “suitable employment” although ultimately this is a moot point.
181If the IPAR jobs were found to be “suitable employment” for the plaintiff “after injury”, then based on the rates of pay provided for those jobs, if she now undertook any of those jobs for 15 hours per week then she has a current demonstrated loss of earnings of greater than 40 per cent and satisfies the statutory threshold when calculated in accordance with s325(2)(e)(i) and (f) of the Act.
182I also consider that the plaintiff’s “after injury” work capacity will permanently be for no more than 15 hours per week of very light work, upon a consideration of all the medical evidence. Bearing in mind the loss of employment options now available to her, such as her pre-injury employments, and the likely difficulty she would now have in finding or maintaining a suitable light job, I am also satisfied that she will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more, as required by s325(2)(e)(ii) of the Act.
183Accordingly, for the reasons given, based on the claimed “serious injury” to the left arm, the plaintiff has established a loss of earning capacity of more than 40 per cent and is entitled to the leave of the Court to commence a proceeding for loss of earning capacity damages.

The claim based on psychiatric injury
184There remains the outstanding question whether the plaintiff has suffered a serious pecuniary loss consequence because of her compensable psychiatric injury.
Treating practitioners
185I have already referred to some of the relevant evidence of psychiatric injury in the earlier discussion of the plaintiff’s treatment after the fall, including the Dr Bekal’s evidence. In his most recent report, Dr Bekal said the plaintiff had developed a secondary adjustment disorder along with depression and anxiety, for which she had been treated with psychotherapy and medication.[142] He said she would likely need psychotherapy and medication on an ongoing basis, but he did not specifically state there was any restriction for work from the secondary psychiatric condition.
[142]      PCB 128.
186Next, I have also referred earlier to the evidence from the treating psychologist Ms Finlayson. She diagnosed an adjustment disorder with features of both depression and anxiety.[143] She said the plaintiff would likely require ongoing therapeutic intervention. Regarding work capacity, she said the plaintiff had marked difficulties with her functional ability but does not directly describe any incapacity for work from the psychiatric condition. She noted that the plaintiff had expressed a willingness to work, though would need a position or employer willing to accommodate her needs.[144]
[143]      PCB 148.
[144]      PCB 149.
187The plaintiff has recently been referred for assessment by a treating psychiatrist, but obviously the outcome from that referral is not yet known. That does raise as an issue whether any psychiatric incapacity is capable of treatment or is permanent, although again not much turns on this.
Medico-legal psychiatrists
(i) Dr Nadereh Radhakrishna
188Dr Nadereh Radhakrishna is a consultant psychiatrist who examined the plaintiff at the request of her solicitors and provided a report dated 17 May 2023.[145]
[145]PCB 197.
189Dr Radhakrishna obtained a history of the fall, the mental health impact on the plaintiff, her treatment and current level of functioning. She obtained a history that the plaintiff’s energy levels were low and at times she had suicidal thoughts.[146] She obtained a history that the plaintiff continued to have debilitating symptoms of depression and anxiety and that “[s]he rarely leaves her home. She does not socialise with others much. She finds it exceptionally difficult to concentrate on anything and is very forgetful.”[147]
[146]PCB 202.
[147]PCB 203.
190Dr Radhakrishna then said the plaintiff lacked current capacity for employment and that the prognosis was poor. She said that while she agreed with a statement that the plaintiff had some transferable skills, she thought that the plaintiff’s “capacity to apply these skills in the workplace is limited by her mental health decline.”[148] She then addressed the IPAR jobs and effectively ruled them out from the mental health point of view for reasons including the plaintiff’s difficulty concentrating, forgetfulness, lethargy, depressed mood and lack of motivation.[149]
[148]PCB 205.
[149]Ibid.
(ii) Dr Stephen Stern
191Dr Stephen Stern is a consultant psychiatrist who examined the plaintiff at the request of the defendant’s agent and provided a report dated 14 January 2021.[150]
[150]PCB 219.
192Despite Dr Stern’s report being tendered into evidence, neither party directly addressed the Court on his opinion. Dr Stern diagnosed the plaintiff as suffering from an adjustment disorder with mixed anxiety and depressed mood, related to the fall. He said he thought she would benefit from five to ten sessions of psychological treatment and should continue antidepressant medication in the long term.[151] He did not comment upon her capacity for work.
[151]PCB 223.
(iii) Dr Natalie Krapivensky
193Dr Natalie Krapivensky is a consultant psychiatrist who examined the plaintiff at the request of the defendant’s solicitors and provided a report dated 31 January 2023.[152]
[152]DCB 7.
194Dr Krapivensky obtained a background history including that the plaintiff found her return to work physically challenging “but when COVID started her duties were modified consisted of checking the temperature of people as there [sic] were walking into the building.”[153]
[153]DCB 9.
195Dr Krapivensky took a history of the plaintiff’s current symptoms including that she had become withdrawn with little social contact. She noted ongoing use of antidepressant and over-the-counter medication. She gave a history that the plaintiff spent significant periods of time lying down.[154] Dr Krapivensky went on to say that the plaintiff had an adjustment disorder with depressed mood to which the fall contributed and since then it had been the termination of her employment that continued to be materially contributing to the current psychiatric condition. Dr Krapivensky went on to say that from the psychiatric perspective, the plaintiff is able to return to pre‑injury duties and to suitable employment without modification and could undertake the IPAR jobs.[155]
[154]DCB 10.
[155]DCB 12.
196In closing submissions, senior counsel for the plaintiff was critical of the opinion from Dr Krapivensky because of apparent inconsistencies within the report. In my view, there is some merit in that criticism.
(iv) Dr Nitin Dharwadker
197Dr Nitin Dharwadkar is a consultant psychiatrist who examined the plaintiff at the request of the defendant’s agent and provided a report dated 8 April 2020.[156]
[156]DCB 59.
198Once again, despite Dr Dharwadkar’s report being tendered into evidence, neither party specifically addressed the Court about his opinions. The first thing to note is that Dr Dharwadkar’s report is now a little out of date and of course relates to a period of time in which the plaintiff was still employed.
199In any event, after obtaining the usual history and like, Dr Dharwadkar diagnosed an adjustment disorder with mixed anxiety and depressed mood.[157] He then said from a psychiatric perspective the plaintiff had capacity for pre‑injury duties and hours and that any limitations were on account of her physical injury.[158]
[157]DCB 71.
[158]DCB 75.

Overview of evidence of psychiatric injury
200The consensus of opinion is that because of the fall and her physical injuries, the plaintiff developed a secondary psychiatric condition by way of an adjustment disorder with anxiety and depression. The plaintiff has required ongoing psychological treatment and the prescription of antidepressant medication.
201But I do not consider that the plaintiff’s ongoing psychiatric condition produces a “very considerable” incapacity for work. First, I consider that the video surveillance demonstrates that her level of day to day functioning is better than what she has presented to the medico-legal psychiatrists. She is able to drive, assist her family as required – for example, running her son to appointments, or assisting family to move house. She is able to attend at busy shopping centres, engage in shopping and banking. She is able to undertake long haul flights to India and domestic flights within India, to engage in pleasurable family and necessary social activities. Taken in isolation the plaintiff’s psychiatric incapacity for work might be said to be significant or marked, but I do not consider it to be “very considerable”.
202For those reasons, the claim for loss of earnings damages by reference to the compensable psychiatric condition is not made out. The plaintiff has failed to demonstrate a “very considerable” consequence as required by s325(2)(c).

Conclusion
203Therefore, for the reasons given, leave is given to the plaintiff to commence a proceeding for pain and suffering and loss of earning capacity damages.
204I shall hear from the parties as to consequential cost orders.

[2023] VCC 945

14 June 2023