IN THE COUNTY COURT OF VICTORIA Revised AT ......4 The body function relied upon in this application...

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

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SERIOUS INJURY LIST

Case No. CI-14-04510 LAURA JANE MARTIN Plaintiff v VICTORIAN WORKCOVER AUTHORITY Defendant

--- JUDGE: HER HONOUR JUDGE K BOURKE

WHERE HELD: Melbourne

DATE OF HEARING: 23, 24 and 25 November 2015

DATE OF JUDGMENT: 17 December 2015

CASE MAY BE CITED AS: Martin v Victorian WorkCover Authority

MEDIUM NEUTRAL CITATION: [2015] VCC 1870

REASONS FOR JUDGMENT

--- Subject: ACCIDENT COMPENSATION Catchwords: Damages – serious injury – injury to the right upper limb – pain and

suffering – credit- loss of earning capacity Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and

(38) Cases Cited: Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport

Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Woolworths Ltd v Warfe [2013] VSCA 22; Dordev v Cowan & Ors [2006] VSCA 254; Richards v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Papamanos v Commonwealth Bank of Australia [2013] VCC 1491

Judgment: Applications dismissed. ---

APPEARANCES:

Counsel Solicitors

For the Plaintiff Mr D Hore Lacy SC with Mr S Carson

Maurice Blackburn

For the Defendant Ms R Annesley QC with

Ms K Gladman Russell Kennedy

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted

Suitable for Publication

VCC:LM/LW/DC/AS 1 JUDGMENT

Martin v Victorian WorkCover authority

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to

s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury

suffered by the plaintiff during the course of her employment with Leader

Associated Newspapers Pty Ltd (“the employer”) on 28 July 2008 (“the said

date”).

2 The plaintiff seeks leave to bring proceedings for damages in relation to both

pain and suffering and loss of earning capacity. These discrete heads of

damage require the application of different statutory tests, as mandated by

s134AB(37) and (38) of the Act.

3 The plaintiff principally brings this application pursuant to clause (a) of the

definition of “serious injury” to be found in s134AB(37) of the Act. There,

“serious injury” is defined relevantly as meaning:

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

…

4 The body function relied upon in this application is right upper limb.1

5 The application for psychiatric impairment under clause (c) was “left in as a

back-up”. Counsel for the plaintiff conceded, from a psychiatric point, the

plaintiff’s Adjustment Disorder was very mild,2 but if it was going to be

suggested the plaintiff was suffering from a Chronic Pain Syndrome which

was non-organically based, then it was submitted the application was properly

brought pursuant to clause (c).3

6 The judgment of the Court of Appeal in Mobilio v Balliotis4 resolved the

meaning of “severe”. Brooking JA held, at 846, having referred to the

1 Transcript “T”1 2 T3 3 T4 4 [1998] 3 VR 833



considerations mentioned in Turner v Love & Transport Accident

Commission,5 that they were not sufficient to warrant departing from the

conclusion at which one would prima facie arrive, namely that the change in

language from “serious” or “severe” betokens a change in meaning. Without

suggesting the use of any particular adjective to mark the distinction, his

Honour said that “severe” was used in the definition as a stronger word than

“serious”.

7 Winneke P, in Mobilio,6 agreed with Brooking JA’s reasons and further agreed

with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of

the Transport Accident Act, was a word of stronger force than the word

“serious” where used in that Act: (see also Phillips JA at 858 and Charles JA

at 860 to 861 to similar effect.)

8 I accept that a Chronic Pain Syndrome can result in an impairment under

ss(c) if a plaintiff can establish a sufficient causal link between an initial

compensable physical injury and a Chronic Pain Disorder which meets the

“severe” criteria of a claim under definition (c) – per Ashley JA in Veljanovska

v Socobell Oem Pty Ltd.7

9 Apart from being a serious injury, the injury must have arisen on or after the

said date before the plaintiff is entitled to recover damages.

10 The impairment of the body function must be permanent.

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

Apart from the general burden, ss(19) and (38)(e) of s134AB of the Act

impose specific burdens in relation to a claim for loss of earning capacity.

12 By ss(38)(c) of the Act, the impairment must have consequences in relation to

pain and suffering which, when judged by comparison with other cases in the

5 (1995) 21 MVR 314 6 Mobilio v Balliotis (supra) 7 [2005] VSCA 227



range of possible impairments, may be fairly described, at the date of the

hearing, as being “at least very considerable” and “more than significant” or

“marked”.

13 I am required to consider the consequences to this particular plaintiff, viewed

objectively, arising from the injury. Comparison must also be made of the

impairment arising from the injury in this particular application with other cases

in the range of possible impairments or losses of body function, mental or

behavioural disturbances or disorders.

14 Where there is a claim for loss of earning capacity, that loss of earning

capacity must be to the extent of 40 per cent or more, both at the date of

hearing and permanently thereafter.

15 As the plaintiff was under twenty-six years of age at the date of injury,

pursuant to s134AB(38)(e)(i) of the Act, she must establish that at the date of

the hearing, she has a loss of earning capacity of 40 per cent or more.

16 Further, the plaintiff must establish, pursuant to ss(e)(ii) of the Act, that she

will, after the date of the hearing, continue to have a permanent loss of

earning capacity which will be productive of a financial loss of 40 per cent or

more.

17 Subsection (f), which relates to older workers and requires consideration of

income from personal exertion in the three years before and three years after

the injury, does not apply.

18 Subsection (38)(g) requires questions of rehabilitation and retraining be

considered in determining whether the 40 per cent loss has been established.

19 Subsection (38)(h) provides consequences which are psychologically based

are to be wholly disregarded in paragraph (a) cases.

20 I have applied the principles identified by the Court of Appeal in Barwon



Spinners Pty Ltd & Ors v Podolak8 and Grech v Orica9 in reaching my

conclusions.

21 The plaintiff relied upon two affidavits and gave viva voce evidence. In

addition, her husband, Nicholas, and her father Greg Carroll, both provided

affidavits. Nicholas was also cross-examined. In addition, both parties relied

on medical reports and other material which was tendered in evidence. I have

read all the tendered material.

22 As the plaintiff’s credit was a major issue in this application, with cross

examination over more than a day, I propose to deal in detail with the

plaintiff’s affidavit and viva voce evidence.10

The Plaintiff’s evidence

23 The plaintiff is presently aged twenty-eight, having been born in March 1987.

She is left hand dominant.

24 The plaintiff commenced employment with the employer in March 2008, in the

Classifieds Section. She generally worked a 32-hour week. She was also

completing a Bachelor of Film and Television at Swinburne.

25 The plaintiff’s job required typing pretty much continuously for eight hours,

with a 45-minute lunchbreak and two further 10 to 15-minute breaks during

the day.

26 The plaintiff took the details of funeral notices over the phone and then typed

them up in the form they were then put in the paper. At times, the notices

were quite long.11

27 The plaintiff agreed an average phone call would be about 6 minutes. The

calls were not non stop. She was allowed to look at the internet, read the

paper, stand up and walk around to a certain extent, and she had breaks.

8 (2005) 14 VR 622 9 (2006) 14 VR 602 10 Woolworths Ltd v Warfe [2013] VSCA 22 at paragraph [139] 11 T24



She was able to achieve her targets and she was a very proficient typist.12

28 Whilst working with the employer, the plaintiff was playing one A Grade and

one social game of netball per week. She was going to an occasional dance

class, Jazz Broadway, with friends.13

29 The plaintiff deposed that, within a couple of months of commencing the job,

she started having pain, tightness and soreness in her shoulders which would

build up during the day. She started to come home from work with significant

pain.

30 By 28 July 2008 (“the said date”), the plaintiff was in a lot of pain. In

particular, she recalled waking that morning with severe pain. She reported

the injury at that time.

31 The plaintiff did not make any complaints about difficulties at her workstation

or ask for any changes before the said date. She did not seek any medical

attention before the said date.14

32 The plaintiff had not been taught correct posture for sitting at a computer. She

supposed she could have raised any issues with her supervisor and “buddy”

on the floor.15

33 The plaintiff could not remember telling her team leader Camilla Irwin that her

pain was caused by a combination of three activities in one day – netball,

theatre rehearsals (Calamity Jane) and work. The plaintiff thought she had

tried to brush off her injury and not complain because it was her first real job

and she wanted to go into the media industry. Working in the call centre was

a step in this direction.16

34 The plaintiff agreed she was not sure what caused her neck injury when she

12 T25 13 T26 14 T26 15 T23 16 T29



first reported it. She could not remember having difficulties sleeping in a

Ballarat motel; it was a long time ago.17 She must have mentioned this to her

doctor because he had asked her what she had done in the previous week.18

35 The plaintiff had a couple of weeks off work and she commenced

physiotherapy treatment with Mr Wigg on 18 August 2008.

36 The plaintiff was taken to her Claim Form which set out the onset of pain

occurred on the said date. She did have pain prior to that date. She did not

realise she was supposed to write that on the form. She was only asked what

happened on that date.19

37 The plaintiff did not mention pain over a protracted period because she did not

realise how serious it was. She was not sure why she did not put it in the

Form, but she definitely had pain for a couple of weeks.20 It was not serious

enough to warrant radical attention. She had not seen the physiotherapist or

complained to work about it.21

38 A fortnight later, the plaintiff returned to work for two half days. She suffered

from such overwhelming symptoms that she could not continue working.

39 An ergonomic assessment of the plaintiff’s desk configuration was

undertaken. When she returned to work in January for 9 hours a week, the

recommendations had not been adopted. The plaintiff’s symptoms returned.

She had almost complete numbness in her right thumb and fingers and could

not type or drive home. After nine weeks, her symptoms were so severe she

had to catch a taxi home and she ceased work at that time.

40 The rehearsals noted by Ms Irwin were for a production of Calamity Jane in

October, run by Babirra Theatre Company. In that show, the plaintiff had

17 T27 18 T28 19 T32 20 T32 21 T33



mostly a singing role.

41 The plaintiff thought she had two weeks off rehearsals for physiotherapy. On

her return, there were some modifications made to her role in the chorus

because of her pain.

42 The plaintiff’s role in Calamity Jane involved singing and moving, not dancing.

It was choreographed movement, mostly walking around the stage emotively,

dramatically singing, and using her arms a little bit. She may have raised her

arms at some point, but any movements that were hurting her were modified.

Amateur theatre is very good at catering for people’s various levels of ability.

The plaintiff did not remember totally, but quite a bit of Calamity Jane was

modified for her.22

43 The plaintiff deposed that she started a significant regime of treatments and

investigations in late 2008. In September 2008, she was referred to a

neurologist, Dr Heywood. The plaintiff agreed, at that time, she still was not

sure whether her condition was work-related.23

44 The plaintiff came under Dr Blombery’s care in March 2009. He treated her

with intravenous lignocaine ketamine infusions. These gave her some relief

but wore off within a couple of months. He then commenced her on Norspan

Patches and also medication known as Amantadine. When she swore her

first affidavit in April 2014, the plaintiff still used that medication with varying

levels of relief.

Current treatment

45 The plaintiff is currently under the care of Dr Krigsman, general practitioner,

and Dr Blombery, specialist. She tells her doctor about her pain levels.24 The

plaintiff is not presently having any psychological treatment.

46 The plaintiff takes Neurontin, 300 milligrams three times a day, Lovan, 20

22 T30 23 T33 24 T176



milligrams a day. She was taking Tramal for breakthrough pain; however, due

to side effects, she is now prescribed Endone at 5 milligrams as needed and

Durogesic Patches. These medications generally take away the sharpest

edges of her pain. Often she has no option but to lie in bed and wait for the

worst pain to pass.

Pain

47 As of April 2014, the plaintiff was left with very significant symptoms in the

right shoulder and down her right arm and in her neck. There was constant

pain between her shoulder blades up in to her neck, which frequently built up

to a severe level. This occurred numerous times daily.

48 There was no escape from the pain and even the plaintiff’s sleep was

compromised as a result. She found it hard to get to sleep, and was generally

woken up by pain at least a couple of times every night.

49 The injury had changed the plaintiff’s life dramatically.

50 In her recent affidavit sworn 11 November 2015 (“her recent affidavit”), the

plaintiff deposed that, unfortunately, things had not improved.

51 The plaintiff lives with her husband Nicholas in her parents’ house. He has

become her carer for the purposes of Centrelink.

52 Nicholas is currently looking for an apprenticeship and if he finds one, the

plaintiff’s mother will take over as carer. He resigned his job in March and did

a three-month pre-apprenticeship course, and he has been looking for work

since. He was on Job Seeker payments. The plaintiff was not sure whether

he received more money as her carer.25 He probably did.26

53 The plaintiff deposed that currently, the main areas of pain that she suffers are

pain in the right side of her neck and into the shoulder; frequent very sharp or

stabbing pain in the neck and right shoulder; pain in the right shoulder blade

25 T90 26 T91



and spreading into the back; pain in the right upper arm and numbness and

pins and needles extending down the right arm to the fingers of the right hand.

54 In the witness box, the plaintiff described pain in the right neck/shoulder area,

with throbbing pain down between the spine and shoulder blade and pain in

her upper arm as well, in the back of her right shoulder. She occasionally

gets tightness across the top of her right shoulder. The pain in her head goes

up to about chin level and down to the bottom of her right shoulder blade.27

55 The plaintiff’s arm pain is actually on the inside of her upper arm. It is a

different sort of pain. She has that pain when she holds her right arm out

straight. She gets tingling below her elbow, but not pain. The tingling goes all

the way through to her fingers and it is intermittent and activity related. It is

caused by raising her arm above shoulder level, trying to grip and carry

things. She really does not have a strong grip anymore. She is not able to

carry her handbag.28 She would not be able to carry a basket in her right

hand.29

56 The plaintiff has tingling in her right hand, generally three times a week, and

tries to avoid activities that will cause it, such as gripping, lifting or repetitive

movements or trying to type or play the piano.30

57 The plaintiff’s pain has got worse.31 With her current medication regime, her

pain is still 9 out of 10. She is in the middle of a reappraisal of her medication

regime.32

58 Over the last six weeks, the plaintiff’s pain has worsened. She was managing

in August 2015. She slept a lot during the day. She had extreme difficulty

sleeping at night. A couple of times she tried to play netball having been

27 T13 28 T14 29 T15 30 T16 31 T18 32 T87



driven there by her husband. She had been missing about 50 per cent of

games on short notice.33

59 On the morning of the hearing, the plaintiff felt horrible and was in extreme

pain sitting in the courtroom. She sat on her own chair whilst at court. She

used ice packs all day and had taken painkillers, but they were not helping her

very much.34

Mood

60 As of April 2014, the plaintiff’s pain and fatigue kept her at home most days

and she then spent a lot of days in bed, especially when she had been busy

the previous day. She found it difficult to go on public transport because of

the jerkiness of the ride. Her mood was very low most of the time and it was

difficult to feel a genuine sense of happiness. Rather, she felt a sense of

being utterly overwhelmed by her pain and its consequences on almost every

facet of her life.

61 The plaintiff first realised she had become significantly depressed in the latter

months of 2008 when she was crying a lot of time. She was treated with

antidepressant medication, which she felt helped to some extent.

62 Despite that medication, it was hard to remain positive. The plaintiff feared

her intended career in film and television had effectively disappeared and she

could not see herself coping with that sort of work on any regular or reliable

basis.

63 The plaintiff lives in an independent flat downstairs in her parents’ home.

64 The plaintiff recently deposed that she struggles with pain and tiredness all of

the time and often spends up to 20 hours a day, or thereabouts, in bed. .

Doing so does not aggravate the pain and gives her support.35 She sleeps for

about 12 hours and usually significantly longer. For the rest of the time, she

33 T20 34 T178 35 T17



reads on her Kindle or iPad.36

65 The plaintiff tends to get up and do one particular thing and then pay for that

activity with pain and tiredness. She can play some of a netball game but

then has to rest for the next day or so. Sometimes, it is just a chore to get out

of bed and shower.

66 The plaintiff lives in an independent flat downstairs in her parents’ home. She

quite often, on average, spends 20 hours a day in bed. The plaintiff does not

necessarily get up and get dressed every day, but she does her best. About

half the time she does not get up. This has probably been happening for at

least four years, even before she was married.37

67 Since 2011, about three days a week, the plaintiff does not get dressed. At

times, she needs help dressing. She has a lot of clothes she can put on

herself as she has learnt to adapt.38

68 Having a shower is one of the things that aggravates the plaintiff’s condition.

Drying her hair can also be a problem and she avoids doing so on a bad

day.39

69 At the moment, the plaintiff is having a bad day every day, and has had very

bad pain for several months. In the last seven years, on average, probably

one or two days a week could be quite bad.40

70 Normal seating is painful for the plaintiff and she needs a seat that comes up

to a higher level than her shoulders to be comfortable. For many years she

has used a portable seat with a high extended back. The plaintiff usually took

it when she went out.

71 The plaintiff bought the chair quite early on, quite a long time, probably about

36 T21 37 T17 38 T19 39 T18 40 T18



five years ago. It was not suggested by a doctor, but the plaintiff discussed it

with her doctors, who thought it would be helpful. Sitting on it relieves her

shoulder pain.41

Work post injury

72 The plaintiff deposed that she attempted to return to part-time work in January

2009, but that was not successful, as her pain and symptoms very quickly

flared up again and she lasted only for a couple of months. She last worked

in about March 2009.

73 The plaintiff worries a lot about the future. Almost all of her plans and hopes

had been sidelined by her injuries. She does not know what sort of

employment she could realistically hold down, bearing in mind her pain levels

and her inability to cope with it.

74 The plaintiff did however attempt work after that date. She tried to sell

Tupperware. She did not mention that in her affidavit because she did not

make any money.

75 Whilst employed by Tupperware, the plaintiff tried to host five or so

Tupperware parties in 2013. She had to take plastic containers out on a table

and talk for two hours or so.42 Her family did most of the deliveries for her.

She did not do any cooking in that job.43

76 The plaintiff was not able to keep up with the minimum requirements of this

job and run a $500-party a week. She had to pay $1,000 for the materials.

Her attempts to do the parties were unsuccessful because of her pain.44

77 The plaintiff did not include this work in her affidavit as she did not count it as

paid employment as she did not get money. She was not aware she had to

mention it. She was hoping to make money but was unsuccessful. She was

41 T13 42 T90 43 T95 44 T96



hoping to get back to starting her life.45

78 The plaintiff also did not mention in her affidavit voluntary work at Theatre

People in 2010 to 2011. She worked for a couple of months, probably a

couple of hours a week at home.

79 The Theatre People job in digital media involved coordinating and organising

people to shoot videos and items for the theatre website. She was sacked

from her voluntary role because she could not fulfil the requirements.46 She

did six of seven promotional videos in the couple of months she was there.

This was at a time when she was spending 20 hours a day in bed on a bad

day, up to two or three days per week.47

80 The plaintiff was unable to do this job in a timely fashion and she had trouble

keeping up at times, as the department grew and it became too big a job for

her. She was not doing the job well enough and they thought they could find

someone who could a better job.48

81 The plaintiff received an email from the editor-in-chief of Theatre People

advising her she was not meeting his expectations. He wanted her to be

doing film and stepping in at the last minute, and she was not able to do this.

The plaintiff thought she worked for Theatre People in 2010.

82 The plaintiff interviewed and videotaped some of the participants in a Theatre

Aid production in February 2011.49 The plaintiff was photographed doing this

filming. She was sitting upright in a normal chair without any support.

83 The interview probably lasted half an hour. The plaintiff just had to press the

recorder and left the camera going. 50

45 T97 46 T34 47 T35 48 T36 49 T39 50 T41



84 The plaintiff believed she paid dearly for this filming activity and had to rest for

some weeks. She would not necessarily tell a doctor about this type of flare

up because she had learned how to them and she had specific medication for

this purpose.51 She had regular appointments, so there was no need for

special ones. She thought her doctor knew she worked with Theatre

People.52

85 The plaintiff conceded she might have been at Theatre People up until July

2011. She did not remember when she had finished. She might have worked

there six months, “time is a blur”.53

86 The plaintiff attended a party at the Waiting Room for the launch of the new

Theatre People website in August 2011 for a “little bit”. Photographs were

tendered showing the plaintiff enjoying herself at that party. The review by

David Hughes set out - “The Theatre People gang partied into the wee small

hours on Saturday night at the Waiting Room to celebrate the launch of the

new site.”54

87 The plaintiff agreed she had continued, on occasion, to put together or

improvise costumes since her injury. She put photographs of such clothing on

the Theatre People website in September 2011.55 She might then have been

still part of the Theatre People team as the photographs suggested.56

88 The plaintiff could not remember discussing with her doctor that she was

doing voluntary work.57 She applied for a parking permit and spoke to her

general practitioner about it. She told him most of the things that were going

on in her life.58

51 T51 52 T52 53 T43 54 T46 55 T46 56 T50 57 T54 58 T55



89 The plaintiff is presently in receipt of a Disability Support Pension. There are

restrictions on what she could earn.59 She denied she avoided work,

explaining that she tried to work with Tupperware.60

Voluntary work – the church

90 As of April 2014, the plaintiff had tried to edit a time-stop video for her church,

Hill’s Church, but found this too difficult because of her high pain levels,

resultant inability to concentrate and a general feeling of tiredness while trying

to do the task. That had been a massive blow to her and she felt a sense of

utter despair about the loss of what she had expected to be an exciting and

fulfilling vocation.61

91 The plaintiff has been attending 13/30 Apostolic Church for over two years.

She probably attends her home group through that church more regularly than

she goes to meetings. Home group is probably once a fortnight, and she has

been three or four times this year.62

Housework

92 As of April 2014, the plaintiff hardly did anything around the house. Cooking,

meal preparation and laundry all exacerbated her symptoms.

93 Whilst attending Caulfield Pain Management in 2012, the plaintiff was cooking

dinner a few times a week but that was really only putting frozen food in the

oven.63

Netball

94 In her April 2014 affidavit, the plaintiff deposed that she was previously a very

keen netballer, playing at a high level three or four times a week. She had

returned to netball but only played socially and sporadically, now in Division

Six, having previously played Division One. She rarely played a full game

without pain, and on the days she played, she rarely did anything else.

59 T98 60 T148 61 T57 62 T58 63 T170



95 The plaintiff recently deposed that she had kept up limited involvement with

netball, playing in very low social grades, with shorter quarters of 9 rather than

15 minutes. Netball is one of the ways she tries to keep up a level of

connection with the outside world.

96 The plaintiff tends not to play defence, as that requires more elevation of her

arms. She also uses her left arm more when playing, due to pain that quickly

builds up in the right arm. Her husband drives her to and from games, as she

struggles with pain driving. Once they get home, she is in a lot of pain and

goes straight to bed. Nevertheless, she is still prepared to get involved

because she does not wish to entirely vegetate at home.

97 The plaintiff also thought she might try some netball umpiring rather than

playing, as she thought it might be physically less stressful and give her some

social outlet. Unfortunately, this did not happen and she found the required

arm movements were painful, and she was not able to do the various hand

signals properly. This was disappointing, as another door had closed to her.

98 The plaintiff plays in a mothers’ club netball association once or twice a week

in a number of different teams.64

99 The plaintiff attempted umpiring after April 2014. She was paid less than the

minimum wage. She was trying to see if she could still do it. She passed the

two-and-a-half-hour written test at the bottom level. She did not do the

practical test because her supervisor had seen her umpiring previously.65

100 The plaintiff filled in when the league was desperate. There was a weekly

roster for which she would sign up.66

101 The plaintiff did a bit of umpiring at the end of 2014 and at the start of 2015.

64 T20 65 T61 66 T60



She asked another umpire’s advice on Facebook on 22 June 2015.67

102 The plaintiff is not fit enough to keep up with the game properly. She has

been told her hand signals are not good enough. The repetitive motion of it

was her problem; the more she did the more it aggravated her pain. She

could run up and down the court for a period of time. 68

103 There is less running in umpiring than there is in playing. At the level that the

plaintiff umpired, she often walked. She can move her arms. She could throw

a ball up to do a contested pass with her left hand.69

104 The plaintiff maintained she could not do further umpiring because she only

had a beginner badge and she could not keep up with high-level games. She

then agreed, unless she wanted to do much higher level umpiring, she did not

need to progress further and her C-Badge was enough. The plaintiff called in

sick multiple times for umpiring.70

105 The plaintiff is able to play netball on a good day, as recommended by her

physiotherapist. She disagreed playing was much more physical than

umpiring. Both activities are about the same for her but she agreed she did

not have to catch the ball, run two-thirds of the whole of the court or defendant

when umpiring.71

106 The plaintiff defends occasionally, but does not have to put her arms up very

often. She is a much lazier player than she used to be. She usually plays

wing attack, occasionally, goal attack and sometimes centre.

107 When playing centre, the plaintiff is probably walking most of the court and

running half of it. She can run two-thirds when playing wing attack, and tends

to play in front. She does not turn her neck to see whether a player is behind

67 T63 68 T65 69 T65 70 T66 71 T67



her because her neck hurts. She sort of dodges around on her feet a bit. She

might occasionally turn her head to the side but she tends to try not to

because it aggravates her problem.

108 Occasionally, the plaintiff might put her right hand up, but she would not be

signalling to her right very often because she has trouble catching the ball on

that side.72 She might raise her right hand for about a second. She denied

she did it continuously through the game. She only threw with her left hand.

She has developed a coping mechanism over the years, catching the ball with

her left hand.73

109 The plaintiff very rarely shoots goals. She probably goes for rebounds with

her left hand.74 She agreed netball could occasionally be physical and she

can be bumped around. She generally stepped out of those situations. She

had managed to do pretty well to avoid contact so far.75

110 The plaintiff is enrolled in three netball teams and, on average, she plays half

of the games in a group league, playing once a week since 2009. She has

not given it up, she was recommended to continue the game for her general

health and wellbeing.76

111 Exhibit 1 was 19 minutes of film of the plaintiff playing netball taken on 16 July

2014. The game comprised 9-minute quarters. The plaintiff was shown

playing wing attack for “Storm”. She preferred this position, as it was the

easiest.

112 The team was made up of mothers aged up to forty with small children. The

plaintiff was the youngest player.77 She found the team on the internet. She

started playing on the recommendation of her physiotherapist, Angelo

72 T67 73 T60 74 T60 75 T69 76 T60 77 T70



Ratachandra, at Genesis Gym in Richmond. He also developed an exercise

and stretching program for the plaintiff.

113 Exhibit 2 was 23 minutes of film taken on 9 September 2015. Initially, the

plaintiff was shown walking into the Knox netball stadium and then playing

netball. For a short time, she played goal keeper and then changed to wing

attack.

114 Whilst this film was being shown, the plaintiff asked to take her medication, as

she needed to take it at 4 o’clock.78

115 Exhibit 3 was 12 minutes of film taken on 3 September 2014.79

116 The plaintiff was shown playing netball in a higher division, which included

teams who were training to be professionals. In that particular game, she was

playing against the Rowville Sports Academy.

117 The plaintiff had driven herself to the game. After the match, the plaintiff

returned to her car and put on her jumper whilst sitting in the driver’s seat. The

plaintiff was then shown reversing her car, moving her neck with no apparent

difficulty. The plaintiff agreed she was able to move her neck from side to side

to a certain extent.80

118 The plaintiff’s team had raised concerns with the league about playing at this

standard because the younger teams were very aggressive and some of the

plaintiff’s team mates got serious injuries playing against them.81

119 The plaintiff supposed she tried to lift to the standard, depending on what level

she was playing. She played centre very rarely and, in that particular film, she

had had most of previous quarter off and she had not been running a full

game. She then agreed that when she was sitting on the sidelines, she was

78 T74 79 T76 80 T92 81 T76



having a rest because she had hurt her finger and she then went back onto

the court.82

120 The plaintiff agreed that in that film, she ran when playing centre, both in

defence and in attack. She had never suggested she could not elevate both

arms, but doing so aggravated her injury.83 When suggested she was not

grimacing, she said she had learnt to conceal that over the years. She had

been told by her physiotherapist to use her arms as much, as she could to

stop them “atrophying.”84

121 The plaintiff was not sure, but she thought she had possibly gone back to

netball in early 2009. She agreed she enjoyed it and it helped her fitness.85

She disputed whether she looked agile and fit compared to what she used to

be. She could jog, but disagreed she was running quite quickly. She could

turn her head to a certain extent and she used her peripheral vision mostly.86

122 The plaintiff disagreed she turned her neck without restriction. She agreed

she dodged back and forth between players. She denied she had no

restriction playing netball. While ultimately conceding playing caused jarring,

she was not moving fast enough for that to be a problem.87

123 The plaintiff agreed that in the 2014 film, there was a collision between her

and another player. The other players back collided with the plaintiff’s front.

This incident did not seem a big deal to the plaintiff.88

124 The plaintiff disagreed she threw a ball with both hands, and described her

particular throwing mechanism as only pushing the ball with her left hand and

guiding it with her right hand.89 She has developed grabbing mechanisms to

82 T77 83 T77 84 T78 85 T78 86 T79 87 T79 88 T92 89 T92



catch a ball. She disagreed she was shown doing a routine netball throw

using both hands.90

125 In re-examination, it was suggested to the plaintiff that she seemed to be on

video just walking around standing there doing nothing. She explained that

was not unusual for her.91

126 The plaintiff had not said she could not put her arm up. It is the upper arm

that is the problem; when she lifts it above her shoulder the pain kicks in. High

levels of pain make it difficult to concentrate, as do the side effects of

medication. 92

127 The plaintiff agreed she told Ms Angel in September 2015 that she had a 30-

minute slow pace walking capacity on a flat surface, usually supporting her

arm in a sling. She used a sling because it took the pressure off her neck.

She thought she probably got the sling in 2008 when she was first injured.93

She could walk unassisted but she was more comfortable wearing it. She did

not use the sling all that often. She had maybe used it about ten times.94

128 The plaintiff preferred to play netball rather than go walking for exercise

because netball was “sort of stop and start.” She does not go for a walk

because she gets enough exercise playing netball.95 It was good to be in a

team because she had to commit herself to go and get out of the house and

turn up. If she went for a walk as well as play netball, it would probably be too

much for her. She is very careful with the way she schedules her time.96

129 Some days, the plaintiff has dizzy spells related to her medication. Her health

is not reliable enough for her to take herself places so if she needs to go

anywhere, her husband drives her. She would not choose to go for a walk

90 T93 91 T177 92 T178 93 T81 94 T82 95 T83 96 T84



with him as she hates going for walks.97 The plaintiff had not been out of the

house without her husband for a couple of months – probably since he

became her carer.98

Travel

130 The plaintiff had also intended to travel extensively once she was a wage

earner, but now felt that had opportunity had also been taken away. She was

not earning what she expected to and did not believe she would be able to

cope with or enjoy the whole experience of travel due to her pain and physical

limitations. That situation upset her greatly.

131 The plaintiff went on her honeymoon to Fiji. She went to New Caledonia with

her sister for ten days. The plaintiff could not have gone on this trip without

her sister to help her.99

132 The plaintiff married two years ago.

133 The plaintiff is concerned about her ability to have children. She is now

twenty-eight and it is something she expected would happen in her life but she

fears she would not be able to hold a baby or take care of it. This was

something she is yet to come to terms with and it upsets her greatly.

134 The plaintiff is also worried about the effect of her medications on an unborn

child. Further, life without painkilling medication did not seem possible.

135 As of April 2014, the plaintiff was no longer the sociable person she had been

before injury and she tended to stay at home a lot more most days. The pain

had affected her mood and she did not often feel like socialising.

136 Now, the plaintiff has almost no social life. She recently went to a niece’s

birthday party but had to leave after half-an-hour to go home and lie down

because of increasing pain. Going out for a meal is difficult. She has to rely

97 T88 98 T89 99 T172



on others to cut her food due to her pain and restriction in the right arm. This

situation was very embarrassing.

137 The plaintiff tried to go to a friend’s wedding on Saturday, but did not make it

to the reception because she was in terrible pain.100

Study

138 The plaintiff had been enrolled in a Master of Arts Degree and a Graduate

Certificate in Theology online. She had to abandon those courses. Apart

from being unable to type due to her injury, and relying on voice recognition,

she did not have the stamina to cope with study pressures. She was also

unable to concentrate when in pain. She sought extensions, and missed

deadlines, and failed a number of units. That situation was difficult to come to

terms with.

139 The plaintiff enrolled in a Master of Arts at Deakin in 2010. That year, she

completed four subjects, receiving three distinctions and one high

distinction.101

140 When she was not doing musicals, the plaintiff was able to study, and did very

well. Most of the work was completed late at night when she was most

alert.102 It was very difficult for her to complete those subjects, but she did.

141 In 2011, the plaintiff withdrew from some subjects and failed the rest. That

year she was involved in Seven Brides.

142 In 2012, the plaintiff withdrew from two subjects and in 2014, she got a

distinction in Criticism of Literature for Children and failed two other subjects.

She then withdrew from the course because she had a lot of trouble meeting

deadlines and concentrating on her studies.103

100 T15 101 T159 102 T159 103 T160



Piano

143 The plaintiff was previously quite an accomplished pianist and generally

practised seven or eight hours a week to keep up her skills. She now rarely

played the piano, as it was too painful and she did not have enough function

in the fingers of her right hand. That had been extremely upsetting for her. On

a more practical level, that was something that previously supplemented her

income which had now been lost.

144 The plaintiff recently deposed that she still has not been able to get back to

playing the piano, as she lacks dexterity in her hands, particularly her right.

This upsets her greatly, because it was something she was good at and proud

of. She had fully expected to improve her skills over the rest of her life and

potentially teach piano and play accompanying parts.

145 The plaintiff’s bio in the Boy from Oz program set out she had studied piano

for seventeen years. She taught piano during high school but stopped during

university to study and work.104

Musical theatre

146 In her second affidavit, the plaintiff deposed that earlier this year, she became

involved with a musical group, thinking singing might be an outlet for her, as

she was unable to play the piano. She was part of a chorus and she was

driven by her husband to and from rehearsals and shows. The shows ran for

two weeks and the rehearsals ran for a few weeks before that. She enjoyed

this activity, although she found that simply being active and travelling to the

venues was painful. After rehearsals and netball games, the plaintiff went

straight home to bed.

147 In cross-examination, the full extent of the plaintiff’s participation in musicals

became apparent. The plaintiff explained there was so little detail in her

second affidavit about her musical theatre participation because she thought

she had mentioned it in her first affidavit and her second affidavit was an

104 T108



update.105

148 The plaintiff had in fact been in the chorus in musicals with the same group,

Barbirra, performing in Calamity Jane in 2008, Oklahoma, Carousel in 2013,

Seven Brides for Seven Brothers, Witches of Eastwick in 2009, Crazy for You

and in the Boy from Oz this year. The plaintiff had been in other musicals with

Players and Mount District Musical Society.106

149 The plaintiff had been roughly doing one musical a year for five or six years.

There would usually be a rehearsal period for two and a half months and then

performances over two weeks, on Thursday, Friday and Saturday.107

150 The plaintiff apologised for not having mentioned the musicals in her first

affidavit.108 Dr Blombery was aware of her involvement, although he had not

noted it. The plaintiff is usually in and out of appointments with Dr Blombery in

five minutes, seeing him mostly for medication.109

151 The plaintiff could not recall much of the appointment with Dr Serry in October

2015. She did not know whether she told him about her involvement in

musicals.110

152 When it was suggested to the plaintiff that her involvement in musicals had

been extensive, she said she supposed more than the average person, “but

compared to most people she knew, no.”111

153 The plaintiff agreed she had to be relied upon by the rest of the cast, but with

rehearsals, they understood why she was unwell and unable to turn up.112

154 The plaintiff had also been on the Barbirra Committee in 2014 and 2015. It

105 T101 106 T99 107 T100 108 T101 109 T150 110 T159; appointment 5 October. No mention of musical theatre involvement. Boy from Oz opened four

days later. 111 T103 112 T104



met once a month, and the plaintiff did some Facebook marketing on its

behalf. She has only been to about five meetings this year and about the

same number last year. She is just a general member of the Committee.113

155 The plaintiff did Facebook headshots of the Committee, helping to plan, and

also helped to plan for the sixtieth anniversary.114

156 The plaintiff agreed she could not umpire netball on a Monday night when

there were rehearsals.115

157 The plaintiff’s bio in the Boy from Oz program set out she was the associate

musical director for The Pajama Game. That must have been in 2010 or

2011. This was a “nice title” but it was not assistant music director. The

plaintiff just helped out because the assistant was pregnant.

158 A photograph of the plaintiff performing in Oklahoma in June 2009 showed the

plaintiff with her arms up over her head holding onto another performer. The

plaintiff explained that she was in fact jumping in the air with her arms above

her head. The other girl was helping by supporting her arm at that point. A lot

of the plaintiff’s movements were modified during shows, with the

choreographer changing the plaintiff’s movements for her.116

159 The plaintiff agreed she was performing in Oklahoma in June 2009, when she

was being certified as unfit for work.117 She assumed she told her general

practitioner that she was in the performance.118 His note of 19 June 2009 that

with folding clothes for 25 minutes would lead to the plaintiff experiencing pain

for a day and a half was correct.119

160 The plaintiff explained she always talked to her doctor about anything she had

113 T105 114 T106 115 T106 116 T130 117 T135 118 T136 119 T139



done that caused above normal pain. She did not know whether she told him

about things she was able to do.120

161 The plaintiff agreed she probably went from that performance straight to the

Witches of Eastwick in August 2009. Photographs from that production

showed the plaintiff helping a fellow performer with her hair and also the

plaintiff holding a camera in her right hand.

162 The plaintiff agreed there was choreographed movement in that production.121

163 There were a number of photographs of the plaintiff attending a birthday party

on her Facebook page in September 2009.122

164 Whilst the plaintiff was shown in one photograph with her right arm raised

above shoulder height, she never said she could not lift it. Doing so caused

her pain. She asked whether she is not allowed to have a life. If she chooses

not to do anything, it causes her pain and she sits around at home in bed.123

She spends most of the night on the couch and she stayed overnight at that

party so she would be able to attend. She denied she was lifting her arm

above shoulder height.124

165 When it was suggested these activities did not cause her any pain at all, the

plaintiff disagreed. She tries to avoid a lot of things that cause her pain.

When she does so, she spends a lot of time in bed which she does not enjoy.

She would try to do things that get her out and active and she only does one

thing a day, and if that causes her pain, she stops. 125

166 On multiple occasions, the plaintiff could not attend the musicals because she

was in too much pain. This month alone she cancelled three auditions

because of the pain she suffered in Boy from Oz. These included productions

120 T142 121 T144 122 T145 123 T146 124 T147 125 T148



of Little Mermaid and Mary Poppins. The plaintiff agreed musicals interested

her and were good for her health.126

167 A number of photographs of the plaintiff in Seven Brides for Seven Brothers

taken in December 2010 were tendered.127

168 In one photograph, the plaintiff was shown holding a basket in her right hand.

Whilst she could not hold a basket now, she must have been able to do so

then.128 She also pictured clapping her hands doing folk-dancing.129

169 The plaintiff had forgotten she was the musical director for Identity Players

Theatre Company, receiving a nomination for a Lyrebird Award in 2012.

Winning that award was not really a major event.130

170 The production of “Identity” was a concert made up of songs played from

various musicals. It ran for twelve nights. The plaintiff took part in the

auditioning process. She had some input in the casting. She counted in the

musicians and did a bit of conducting with her left hand.131

171 The awards were basically a way to make people feel appreciated for their

involvement in amateur theatre. The plaintiff was nominated by default as

there were only three variety shows that year.132

172 In 2013, the plaintiff was in Carousel. There were moments she did not make

it on stage because she was in too much pain. There was a big break over

Christmas and she recovered. The next show the plaintiff did was two years

later.133

173 Barbirra put on a production of Boy from Oz from 9 to 17 October this year.134

126 T149 127 T150 128 T150 129 T153 130 T110 131 T144 132 T114 133 T150 134 T107



The plaintiff was listed in the program as being in the ensemble and also

carrying out a marketing role.

174 The auditions must have been in about July or June, and the plaintiff went for

a chorus part. She probably would have attended her first rehearsal for that

production in about July or August 2015.135 There were an increasing number

of rehearsals held by the end of October. Sometimes, the plaintiff was

required for two hours, and at other times, three.136

175 The plaintiff was participating in rehearsals in August 2015 when her husband

applied to be her carer. At that time, the plaintiff basically went to rehearsals

and then went to bed. That was usually the only thing she did that day. She

missed a lot of netball during that period. She did play some games. She

was spending up to 20 hours a day in bed.137

176 The plaintiff did some movement in the Boy from Oz. She definitely was not

one of the dancers. She did some back-up singing. She thought she did

about 30 seconds of tap as a “Rockette” in the opening of Act Two, and she

“screwed it up most nights”. 138

177 There were some other songs where the cast stood around and sang, and

there was a bit of really slow movements and a bit of stylised movement. The

plaintiff would not count that as dancing. It was step together backup singing,

literally stepping from side to side.139

178 A YouTube clip was shown in Court of this performance.140 The plaintiff was

shown at various times on the stage standing, singing and moving her

arms.141

135 T123 136 T126 137 T127 138 T116 139 T117 140 Exhibit 4 141 T120



179 Later in the film, the plaintiff was shown again clapping and stamping and then

she walked off the stage. For a short time, in one scene, she was pretending

to be a dancer and doing warm-ups lying on the ground.142

180 When it was suggested to the plaintiff that it was unlikely she would be

spending 20 hours in bed whilst doing rehearsals and playing netball, the

plaintiff stressed she spent up to 20 hours in bed. 143

181 The plaintiff agreed it was a bad idea for her to be in the production and she

put her body through more than she should have. She was not auditioning for

anything in the future unless there was a choir role. It was a huge strain on

her body. She kept attending Boy from Oz because she was committed to it.

She was finding it very difficult. She did not pull out because she did not want

to let people down and she enjoyed it.144

182 Whilst there was a social aspect to these productions, the plaintiff did not

attend cast parties and went straight home to bed.145

Dance lessons

183 The plaintiff did tap, jazz and contemporary for Creation School of Dance for

about six to twelve months, when trying the rehabilitation program with the

physiotherapist at Genesis. It was extremely painful and she did not really get

very far with it and stuck with netball. She missed more than half the classes

suggested by her physiotherapist. The classes were of entry level and she

was not a good dancer.146

Teaching

184 The plaintiff probably started teaching singing to a little girl from the church

earlier this year, at the end of first term. There have probably been about 15

lessons but the plaintiff has had to cancel quite a lot. The plaintiff is paid $15

per lesson. She also helps a little girl who is very ill with her homework but

142 T124 143 T127 144 T128 145 T130 146 T109



does not get paid.147

185 The plaintiff struggles with the singing tutoring, it makes her tired and sitting is

a problem.148

Singing lessons

186 The plaintiff has been having singing lessons over the last seven or eight

years with the same teacher.149

187 The plaintiff has these lessons for a personal sense of satisfaction. It does

not actually count towards anything, it will not get her into a degree.150 She

did not really practise very much, and tried to go to her lessons once a week.

188 The plaintiff started singing at AMEB Grade 4 level. She obtained B for Grade

7, but the majority of the people did.151 She should have practised more for

her exams to feel like she had accomplished something in life.152 She was

undecided, at the moment, whether she was going to do Grade 8.153

A music career

189 If the plaintiff was well enough, it would be wonderful to have a career in

music. She can still sing and it does not affect her pain level. Being in

musicals gives her a level of feeling that she can accomplish something rather

than sitting around in a dark room doing nothing. However, it not a career

goal. It took her a long time to concentrate and learn lines but she fudged

them.154

190 The plaintiff disagreed she had a greater level of function than she had told

doctors. She disagreed that she could work. She would love to. Being a

music teacher or a tutor is something she would be interested in. She had

attempted to build up an ability to do this but was having a lot of trouble. If

147 T156 148 T165 149 T103 150 T161 151 T163 152 T164 153 T165 154 T166



she continues the way she currently is, she would not be able to do it in the

future, it is a real struggle for her.

191 The plaintiff aims to get out of bed to be active. There are a lot of things she

misses out on, such as the wedding last weekend. She does not do singing

and dancing all the time.155 She does all those things periodically over the

time since she has been injured. She was extremely careful how she

scheduled her time not to exert herself.156

Lay evidence

192 The plaintiff’s husband, Nicholas, swore an affidavit on 11 November 2015.

He and the plaintiff reside together at her parents’ home. They have known

each other since childhood and married in 2012. He has noted quite drastic

changes in the plaintiff since her injury in 2008.

193 The plaintiff was previously energetic and intellectually engaged, was an

accomplished pianist and top level netballer, and she had great expectations

about the future, which was likely to be in the television or film industry.

194 Since the injury, the plaintiff is very dependant and he is now her carer. He

sees her struggle daily with pain, how she pays for doing any activity and is

largely confined to bed. He drives her to netball so she does not have to

move her neck and shoulders while driving. He then drives her home. After a

game, she is clearly in pain and goes straight to bed.

195 The plaintiff tends to stay in bed for a large part of each day, up to twenty

hours each day. Her sleep is quite disturbed, only getting short periods of

sustained sleep.

196 Their social life is extremely limited. The plaintiff generally only lasts an hour

or so at a social event and has to go home.

197 The plaintiff’s uses the high chair, which gives her support. They take it with

155 T175 156 T176



them most places they go. He sees the plaintiff struggle using her right hand

to cut up food. As a result, he or another family member usually cut it for her.

She finds this particularly embarrassing in public. He also has to help her with

dressing, as well as drying and brushing her hair.

198 The plaintiff has tried to complete her studies online but had to give them

away this year. Even with a dictation program, she was missing deadlines to

hand in work, as she could not apply herself to study due to her lack of

concentration and tiredness. Having to pull out of her course has been a

massive blow to her.

199 The plaintiff looked for other interests in an effort to have some life outside the

house. She became involved with a musical group for a number of weeks.

They discussed that might be a good outlet for her, given she could not play

the piano. He drove her to and from rehearsals and performances so she

could participate without added pain and stress from driving. She has often

had to cancel plans they made, often at the last minute, because she looks

physically tired and she is in pain.

200 Intimate relations has been very much compromised by the plaintiff’s pain,

which has been upsetting for them. They are also worried about the plaintiff’s

ability to cope with raising children and the effect of her medications on an

unborn child.

201 The plaintiff’s injuries have certainly utterly changed the course of her life and

his. They are now both very worried about the future. As matters stand, both

he and the plaintiff try to keep up some, albeit minimal, activity or interests in

an effort to have some form of normality.

202 Nicholas was required for cross-examination. He confirmed that he worked in

sales until April this year, when he ceased work to do a three-month electrical

pre-apprenticeship. He is presently looking for an apprenticeship.



203 Nicholas applied for Newstart as he was looking for work. He then changed to

a carer’s allowance because of the increase in money.157

204 Nicholas has known the plaintiff since childhood. They were family friends

through the Church. They started seeing each other romantically five years

ago, having fallen out of touch for a few years. They had not seen each other

very much between 2006 and 2010.

205 When they were courting, most of their social life was spent at the plaintiff’s

house. They enjoyed each other’s company and got along well. They did not

go out and do things very often, and spent a lot of time watching television.

206 Nicholas first saw the plaintiff in a show when they were dating. He thought it

was Seven Brides. He was not great with shows or a huge fan of theatre, but

was aware she was involved. In the early days, he did not drive her to

rehearsals.

207 Nicholas denied he was trying to minimise the plaintiff’s involvement in

musical theatre in his affidavit. He should have corrected that mistake.158

208 The plaintiff is capable of being alone at home by herself. Family members

are available, a phone call away.159 The plaintiff can spend up to 20 hours a

day in bed, and did so the majority of the time. She had a few good hours a

day.

209 The plaintiff’s sleep is intermittent. She passes in and out. She is in pain all

the time, and she wakes up frequently. She probably spends about half that

time sleeping, but that is intermittent. Her four hours of activity are not

consecutive.160

157 T182 158 T186 159 T186 160 T187



210 The plaintiff has lost confidence, and was having a lot of trouble driving in the

last six months. She had trouble moving her head when parking. Nicholas

now drives her around. Things have been tiring her out more than usual. The

furthest the plaintiff would have driven would have been 20 minutes.

211 Nicholas drives the plaintiff to netball and rehearsals if she is up to it but often

she has to cancel.161 He denied the plaintiff did what she wanted to do. She

did what her body allowed her to do.162

212 The plaintiff can move her neck from the middle to one side, but could not

move to the other side as it caused her pain.

213 Nicholas had watched the plaintiff play netball. He drove her there because

he was trying to minimise the strain she put on her body. He did not stop her

playing netball. When he watched her play netball, the plaintiff barely used

her right arm at all, and instead of turning her neck, she turned her whole

body. The plaintiff plays a very low-grade, casual game. She actually does

not move very fast at all. She is very careful about her movements.163

214 The plaintiff can elevate her arms up but she cannot sustain it. She usually

leads with the left arm. She often drops the ball if it goes to her right side.

She drops it a lot. The level of skill required is very low. The plaintiff plays

centre but she is a terrible defender.164

215 The plaintiff’s attendance at games depends on her other activities. He would

actually have to look at the calendar. When a performance was on, she

cancelled absolutely everything else for those two weeks.165

216 Nicholas disagreed that netball involved considerable jarring to the body. He

knew it did not have a lot of effect on his upper body, because he played

161 T188 162 T189 163 T190 164 T190 165 T192



netball himself. He played with the plaintiff in a mixed netball team. They

stopped playing because they found the boys were too rough and they did not

want the plaintiff to get hurt.

217 The mixed netball was probably the year they got married, or maybe the year

before. They played for one season, ten games or so.166 Mixed netball was

faster, the ball was thrown harder, and overall, the boys were more

aggressive.167

218 They played mixed netball because they did not realise at the time it would be

a problem, as the plaintiff had played girls’ netball. The plaintiff’s

physiotherapist had encouraged her to try to play netball.

219 They rarely go for a walk, because it is better for the plaintiff to play netball,

and they have it scheduled. Netball is better for the plaintiff because it

involves little bits of running on and off, and the plaintiff is not going

constantly. It is her choice not to go for a walk.168

220 Nicholas disagreed with Dr Blombery’s view that in the last couple of months

the plaintiff could maybe work a couple of hours a week. Whilst commenting

that Dr Blombery is a doctor, the plaintiff’s appointments with him are very

short.169

221 Nicholas was aware of the plaintiff’s involvement in Theatre People in 2010

and 2011. As far as he could tell, he did not think that involved much. She

had some people film some things for her, and she might have edited a

video.170 He was aware that she did Tupperware work for a few months – it

would be six or seven at most – doing demonstrations. He took her and

carried everything in for her.171

166 T192 167 T193 168 T194 169 T194 170 T195 171 T195



222 The plaintiff also had tried netball umpiring. She started a couple of years

ago, maybe two years ago, until a few months ago.172 She umpired mainly

once a week, sometimes twice if asked. She was paid for umpiring.

223 The plaintiff has a singing student at the moment, and a second one possibly

starting up who has been referred by the plaintiff’s own singing teacher.173

The situation for the plaintiff is pretty much get up, get dressed, do the lesson,

and go back to bed afterwards.

224 The plaintiff also helps tutoring a special-needs child. The tutoring is only

once a week due to the plaintiff’s health, although two sessions had been

originally planned.174

225 Nicholas did not mention Tupperware, tutoring or Theatre People in his

affidavit because he only answered the questions he was asked. He spoke to

the barrister only for a short time.175 When it was suggested he did not

mention any work, voluntary or otherwise, he explained that he did not think

the plaintiff should be doing as much as she has at times. He was new to the

legal process and did not really know what he was supposed to say.176

226 The conference with the barrister lasted for fifteen minutes. It was the first

time in his life that Nicholas had sworn an affidavit.177

227 The plaintiff would like to continue performance in musical theatre, but at this

stage, she is not feeling like she can. It is not something she is looking to do

as a career. It is an outlet for her. She did tap dancing for a short time,

maybe a year at the most.178

172 T196 173 T196 174 T197 175 T198 176 T198 177 T203 178 T198



228 Nicholas drives the plaintiff to singing lessons. He thought she was quite a

good singer.179 He thought she still wanted to continue doing AMEB singing

examinations.180

229 Following their wedding, they stayed at a bed and breakfast before the

honeymoon in Fiji so the plaintiff could recover before they got on the plane.

230 A lot of the time, Nicholas ends up helping the plaintiff get dressed,

particularly with any zips or clothing that has to go over her head. He has

helped her dress ever since they have been married.181

231 Their social life is very boring. They do not go out a whole lot. They used to

go to a movie. He agreed they never had a great social life, and nothing had

really changed.182

232 In re-examination, Nicholas described how the plaintiff was “managed

carefully”. When she has rehearsals she is probably not going to play netball,

so netball is limited. When she plays netball, they make sure she gets at least

a quarter off, or half a game. If there is church on Sunday, they make sure

there is absolutely nothing on Saturday. Often they have to cancel church if

they do something on Saturday. They just try and make the most of the

opportunities to get the plaintiff out and have some sort of normality in her life.

233 If the plaintiff does too much it just causes pain. If she does something one

day, she needs time to recover. When doing a performance, there is nothing

else. If there are four performances, the plaintiff often takes about two weeks

to recover.183

234 The plaintiff’s father, Greg Carroll, swore an affidavit on 11 November 2015.

235 Mr Carroll confirmed the plaintiff’s outgoing and happy nature prior to the

179 T199 180 T200 181 T201 182 T202 183 T203



injury, enjoying a wide range of interests including church, netball, short films,

practising piano up to two hours a day, a busy social life, working as a

waitress and then later at the Herald Sun.

236 Mr Carroll witnessed quite a rapid decline in the plaintiff’s health in 2008 after

her injury. She was clearly struggling with pain despite taking painkillers. She

saw various medical specialists and then went off work. She made an attempt

on a graduated return to work program which was not a success, and her

return to work was abandoned.

237 Since ceasing work, the plaintiff’s condition has not improved. It saddens him

to see her in that condition daily. She lacks fine motor skills with her right

hand, being unable to cut her own food and prepare meals, or do other

household activities.

238 The plaintiff has lost contact with most of her friends and rarely socialises.

When she does go out on that rare occasion, she and her husband come

back an hour later with her in pain and she goes straight to bed.

239 Mr Carroll has watched the plaintiff lose her piano playing skills, being a

particularly good pianist before injury. She does not even try to play now

because of her limited use of her right hand and arm. This upsets her greatly.

She has tried to fill the void by participating in some singing as part of a music

group, but even that had limited success due to her inability to travel to and

from the venue easily. If she does that activity, she then comes home and

goes straight to bed.

240 The plaintiff was also a very proficient netballer before injury. She now plays

only in a low grade, which is really a social outlet more than anything else.

After a game she is invariably in bed asleep, or in bed awake and complaining

of pain.

241 Mr Carroll has also watched the plaintiff become enthusiastic about online



study. While she was not able to type assignments, she used Dragon but,

unfortunately, she was not able to devote the time or concentration to those

studies and has let them go. This is upsetting for her.

242 As a parent, to witness what has happened to the plaintiff has been

heartbreaking. He worries about her future and, as matters stand, he fears

she will never get back to the paid workforce. As she has been so unwell for

so long, he does not see much prospect of things changing for the better.

Treaters

243 The plaintiff had physiotherapy treatment from Simon Wigg in 2008, following

what he described as insidious onset while working with the computer.

244 Mr Wigg placed emphasis on posture re-education and avoidance of strained

head/chin postures. He noted in August 2008, the plaintiff was, overall,

improving slowly, doing some quite gentle hydrotherapy.

245 The plaintiff’s general practitioner, Dr Krigsman, from Greater Knox Family

Practice (“the Practice”), has treated the plaintiff since 5 August 2009.

246 In his most recent report of June 2015, Dr Krigsman diagnosed cervical

radiculopathy, especially at C6-7 on the right, Thoracic Outlet or Brachial

Plexus Syndrome, Reactive Depression by 13 March 2009, diagnosed

clinically, and Complex and Chronic Regional Pain Syndrome by 5 September

2008.

247 Dr Krigsman noted the following investigations – 2008 CT and MRI scan of

cervical spine, 2009 nerve conduction studies, 2010 MRI scan of the cervical

spine and thoracic outlet, 2014 nerve conduction studies and a right shoulder

ultrasound in February 2015.

248 Dr Krigsman thought the plaintiff’s injuries were consistent with the stated

cause of increased VDU typing in a role the plaintiff had only worked in for

four months. It came on after a very demanding and long day of typing at



work and she woke in pain the next morning.

249 Dr Krigsman thought the plaintiff’s present capacity for work was minimal. He

considered, in the future, she may be able to undertake casual or part-time

work if the pain and any side effects of her treatment did not hamper her work

ability. He noted she had attempted voluntary employment and had to cease

within three weeks. She was becoming more dependent and her husband

was her carer. He thought she had a lifelong condition of a serious nature.

250 The plaintiff’s clinical file from the Practice contains numerous complaints of

neck and right-sided arm pain, the first attendance in relation thereto being on

5 August 2008.

251 There have been consistent complaints since then of significant pain,

restricted movement, difficulty sleeping, problems with grooming and other

daily activities.

252 The file includes reference to numerous referrals and prescription of

medication at different times. The current medication regime includes Lovan,

and Neurontin,

253 In particular, counsel for the plaintiff replied on a number of entries in his final

address.

254 On 4 August 2010, it was noted the plaintiff had been in severe pain since

Sunday and later that month she was being prescribed Neurontin and weaned

off Lyrica. The plaintiff’s difficulties coping with her studies were noted in June

2011 and in October that year, it was noted Lovan was not working well.

255 On 14 October 2011, it was noted “rarely playing the piano left hand, netball

weekly, filming etc … studying this year, withdrawn from course as unable to

complete a unit due to infusion then depression”.

256 On 3 January 2012, the plaintiff’s attendance at the Caulfield Pain



Management Clinic was noted.

257 On 3 April 2014, Dr Krigsman noted: “Pain control coping, limiting her lifestyle,

has rest days.” On 9 January 2015, he noted: “feeling very dizzy the last 2

days, sleeping a lot last week, heart fluttery.”

258 The last entry on 27 August 2015 set out Lyrica was gradually being

withdrawn with side effects. Neurontin had been increased. “Helped nausea

almost gone and headaches less, still sleepless and still pain.” Dr Krigsman

also noted “husband Nicholas is her carer. Needs present for showering,

walking outside.”

259 Dr John Heywood, neurologist, saw the plaintiff four times between

September 2008 and November 2010.

260 The plaintiff told him of the onset of neck, shoulder and right arm pain in late

2008, recalling being at work and developing soreness in those areas.

261 Dr Heywood’s initial diagnosis was a cervical root compression, with the

combination of neck pain, weakness and tingling in the right arm. The

symptoms, namely the distribution of tingling, suggested C7 root involvement

but the signs did not confirm this diagnosis. He thought an alternative would

be a brachial plexus lesion. He recommended an MRI scan.

262 At that stage, the plaintiff’s symptoms were slowly improving, and the likely

diagnosis was brachial neuritis based on the severity of her pain, with

subsequent gradual improvement. Dr Heywood considered there would be a

further improvement over time and did not recommend additional treatment.

263 However, the plaintiff’s symptoms did not continue to improve as Dr Heywood

initially expected.

264 On re-examination in December 2008, there was no change to the plaintiff’s

neurological signs. Dr Heywood thought there might have been some



vascular compression of the brachial artery, although the plaintiff did not have

significant vascular symptoms. He requested studies but they showed no

evidence of an injury to the peripheral nerve brachial plexus or cervical root.

His working diagnosis then was Thoracic Outlet Syndrome or Myofascial Pain

Syndrome. He noted investigations did not support the diagnosis of Thoracic

Outlet Syndrome.

265 Dr Heywood referred the plaintiff to Dr Blombery for his opinion about the

cause of her symptoms and whether he felt there was any clinical evidence to

suggest Thoracic Outlet Syndrome.

266 Dr Heywood last saw the plaintiff in November 2010. She was then frustrated

by the lack of improvement and told him her insurers had rejected paying for

some of her treatment. He considered the diagnosis remained uncertain but

may be a Myofascial Pain Syndrome, for which treatment options were

limited. He was unsure of the plaintiff’s long term prognosis from either a

medical or work viewpoint.

267 The plaintiff first saw vascular surgeon, Dr Blombery, in March 2009.

268 On initial examination, there was pain in the right arm and tingling all the way

down it, particularly into the index, middle and ring fingers, and some slight

numbness of the arm.

269 Dr Blombery thought the plaintiff developed pain in her right shoulder and arm

in the course of her employment where she was doing a lot of data entry.

270 Dr Blombery organised investigations which showed no evidence of Thoracic

Outlet Syndrome. He gave the plaintiff a trial of Baclofen to reduce muscle

spasm, which she found was of some benefit in reducing pain.

271 Dr Blombery gave the plaintiff a course of prednisolone, which gave some

minor reduction in pain at its highest level but thereafter no improvement.

Baclofen had resulted in dizzy spells. The plaintiff also had a trial of



acupuncture. She was given Lyrica by her local doctor in July 2009. On 18

January 2010, she was given 30 milligrams of Phentolamine (“the infusion”).

272 When seen in March 2010, there had been improvement for a few days after

the infusion.

273 Worsening pain was described on 16 September 2010. Dr Blombery

requested a Ketamine Infusion but funding was refused.

274 As of October 2010, Dr Blombery thought the plaintiff had features of a non-

specific Pain Syndrome, a Myofascial Pain Syndrome affecting the right

shoulder and arms as a consequence of work. He did not think she had

Thoracic Outlet Syndrome and she did not have Complex Regional Pain

Syndrome Type 1.

275 Dr Blombery thought management should be with multidisciplinary therapy for

chronic pain, best provided at a pain management clinic. He considered the

plaintiff was then unable to work because of the severity of the pain but,

hopefully, if she could have appropriate treatment and the pain was reduced,

she may be able to return to work at least on a part-time basis. He then

thought the prognosis was moderate to poor.

276 The plaintiff had a Ketamine Infusion in October 2012. On review by Dr

Blombery in December 2012, the plaintiff rated her pain as 6 out of 10 and

she was coping better.

277 In February 2013, the pain had increased to 9 out of 10, and, as of 22 March

2013, reduced to 3 out of 10 with medication.

278 When seen on 1 May 2013, the plaintiff rated the pain as 5 out of 10 and she

remained on Norspan Patches.

279 Dr Blombery then thought the plaintiff had ongoing features of a non-specific

Pain Syndrome affecting the right shoulder and arm as a consequence of her



work. She required intermittent Ketamine Infusions and opiate drugs to

control her pain. He thought her prognosis for overall recovery was very poor.

280 Dr Blombery explained the essence of the plaintiff’s disorder was that there

was pain nerve pathway sensitisation precipitated by an initial injury which

had then become autonomous and ongoing. He emphasised Fibromyalgia,

Myofascial Pain Syndrome and non-specific pain syndromes were organic

disorders of pain nerve pathways and were not psychological disorders.

281 The plaintiff next attended on 5 July and 2 October 2013 when Dr Blombery

gave her a further script for three months of Norspan Patches.

282 The plaintiff attended in January 2014. She had seen a neurologist, Dr

Wodak, with regard to her headache. She rated her pain, overall, as 5 to 6

out of 10 and was able to manage it. She wanted to change the patches

earlier.

283 The plaintiff had also been recently married and was considering being

pregnant. Dr Blombery advised her she would have to cease Lyrica,

Neurontin and her antidepressant.

284 The plaintiff was seen in March 2014. She was now able to play netball three

times a week, and she rated her pain, overall, as 6 out of 10. She stated she

tended to keep her health better when she was playing sport regularly.

Sometimes, she was unable to finish matches because of exacerbation of her

pain.

285 Dr Blombery then thought the plaintiff continued to have features of a non-

specific Pain Syndrome affecting the right shoulder, as a consequence of

work. That had triggered the development of pain pathway sensitisation. He

considered her symptoms remained essentially stable. He thought her

prognosis was relatively poor, noting she was currently able to cope with her

activities of daily living to a reasonable extent. He confirmed the organic basis



of her condition.

286 Dr Blombery thought the plaintiff would have a capacity for suitable

employment for a few days a week of light duties, but may require retraining.

Six hours’ work might be possible, but that would only be determined by a

trial.

287 The plaintiff was seen by Dr Blombery in June, September, October and

December 2014, during which time Durogesic continued to be prescribed.

Nerve conduction studies in 2014 showed no evidence of median, ulnar or

radial neuropathy.

288 The plaintiff attended in April 2015 when she rated her pain 5 out of 10. When

last seen in July, she had had an exacerbation of pain in the preceding two

months, as well as symptoms including fatigue and poor sleep. The plaintiff

advised it was taking longer to recover after activity and, on some occasions,

she had to miss netball. She had a lot of headaches and nausea.

289 Dr Blombery then suggested the plaintiff try reducing Lyrica, and then ceasing

it, as it may have been contributing to some of the increased fatigue.

290 Dr Blombery thought the plaintiff continued to have features of a non specific

Pain Syndrome affecting the right shoulder and arm as a consequence of

work.

291 There was nothing visible in terms of the suprascapular nerve on imaging.

Nerve conduction studies were equivocal.

292 Dr Blombery thought the plaintiff’s prognosis for recovery was poor, noting

she continues to use opiate analgesics to control her pain.

293 In terms of the plaintiff’s functional status, despite her ongoing pain, Dr

Blombery noted she was able to play netball usually two or three times a

week, although she said that she was often quite exhausted after that for



some time.

294 Dr Blombery noted netball is a game involving significant physical activity and

if the plaintiff is able to play on a regular basis, it was illogical to state she had

no capacity for employment. At least, she would be able to do duties of some

kind for about six hours a week, that is, the time she played netball.

295 On questioning, the plaintiff told Dr Blombery of attempts to sell Tupperware

and some occasional volunteer work on a website, and teaching of singing for

half an hour a week.

296 Dr Blombery thought the plaintiff would be able to do a light job for a few

hours a week initially, with no heavy or repetitive lifting. In terms of suitable

employment, she could do that initially at least four hours a week, divided into

two-hour episodes, with the restrictions he suggested.

297 Dr Blombery considered some of the plaintiff’s symptoms of fatigue and

tiredness were partly psychological, based in response to her perception of

the effects of injury. He thought she should be encouraged to try and do

those activities, particularly in view of the fact that she could play netball, and

that would help improve her self-esteem and her overall functional status.

298 Dr Blombery thought the plaintiff’s symptoms and restrictions had a

substantial organic basis. They developed in 2008 with gradual discomfort

and then sudden, quite severe cramping in July 2008, with ongoing pain. He

confirmed his earlier diagnosis, noting it was an organic disorder of pain nerve

pathways.

299 The plaintiff was referred for psychological counselling to Ms Patricia Greig in

May 2009. She attended for nine sessions until August 2009. When last

seen, the plaintiff’s depression score was in the midrange and she had had

some improvement in sleep with strategies. She was attending a pain

management physiotherapist



Medico-legal evidence

300 Dr White, neurologist, examined the plaintiff on behalf of Allianz in March

2009.

301 Dr White then believed the primary contributing factor to the plaintiff’s

symptoms was the nature of her work, but that may be acting on an

anatomical abnormality, such as Thoracic Outlet Syndrome, but that was yet

unproven.

302 Dr White disagreed with Dr Baker, who thought the plaintiff’s condition was

not work related.

303 Dr White considered the plaintiff was capable of pursuing the current return to

work plan and would, hopefully, return to relatively normal function over the

next few months, although then she was not yet fit for her pre-injury duties.

304 The plaintiff was examined by Mr Hjorth, consultant neurologist, in April 2012

at the request of Allianz. During the examination, the plaintiff laid back in a

chair throughout the interview.

305 The plaintiff told Mr Hjorth she could not play the piano and she used Dragon

Dictate. She could not cut up her own meals. She had to sell her manual car

to get an automatic. She could not drive for more than 30 minutes, and she

got too tired and her arm went to sleep. Her neck and head needed support

when sitting. She had a special folding chair and her social life was depleted.

She used to play netball and was of a high standard, at just below A Grade.

She started dancing in 2011 on her physiotherapist’s advice.

306 Mr Hjorth thought it was an extraordinarily complicated case and that

everyone had struggled to make sense of it. There were some unusual

features and, by implication, some of the people who had seen the plaintiff

considered that psychological factors were involved, noting Dr Jager’s original

diagnosis of Major Depressive Disorder.



307 However, on examination, Mr Hjorth thought there were at least two organic

features and physical signs that could not be imitated. The first was an

abnormality in the eyes suggestive of a right Horner’s Syndrome, seen

following damage to the sympathetic supply of the face and neck, and not

seen infrequently with brachial plexus injuries. He thought the second

abnormality was the depression of the right triceps jerk that could have

several causes but could not be imitated or feigned.

308 Having said that, although he considered part of the trouble to be organic or

physical, Mr Hjorth had to say it was hard to be sure of its exact anatomy. He

suspected it was due to damage to the brachial plexus, although it could be

damage to nerve roots. Although he thought the problem was organic, he had

to say there did appear to be some functional psychological components of

the present disability.

309 Having said that, Mr Hjorth could see clear-cut signs of a physical

involvement. He also had to say that there were other signs which suggested

an emotional component, noting the plaintiff having to lie back in the chair was

unusual for someone with the diagnosis he made. Further, the significant

problems with sleeping could have physical origins but could also be

functionally based.

310 Mr Hjorth thought it was hard to make a confident diagnosis, and hard to

make a confident prediction of the future when doing an AMA Assessment, as

he was requested to do.

311 Dr Sillcock, occupational physician, examined the plaintiff in May 2015. The

plaintiff told her that her symptoms were getting worse and she had three

significant exacerbations. She did not have any pain free periods.

312 The plaintiff reported pain in her neck and right shoulder and a shooting pain

between her shoulder blades. She graded her pain as 6 out of 10 in intensity

most of the time and rising to 9 out of 10 on a bad day.



313 The plaintiff told Dr Sillcock she had not slept a full night in years. She woke

with pain or nausea. She rarely got to sleep before 3.00am. She was always

tired during the day.

314 On examination, neck movements were about half of the normal range in

some directions. The plaintiff had reduced sensation to pinprick over her

fingers.

315 The plaintiff described problems with prolonged sitting and standing. She had

a limited driving capacity. She had problems doing up buttons. She did not do

any housework or cooking.

316 The plaintiff advised she played netball at a low level, generally twice a week

for half an hour on average, which helped the pain, as being in motion was

beneficial and she was able to catch the ball with her right arm. She was not

able to play the piano because she had no control over the fingers in her right

hand. She liked classical singing and had lessons. She did not go out much

socially. She found it too hard to meet study deadlines.

317 Dr Sillcock noted the plaintiff presented as being very disabled and stated that

she was not able to do anything much at home, although she was able to play

netball, which Dr Sillcock noted was inconsistent.

318 Dr Sillcock thought the plaintiff had sustained what sounded like an acute wry

neck superimposed upon chronic neck/right shoulder strain, but for some

reason that had not recovered, and she believed the plaintiff now had a

Chronic Pain Syndrome. Dr Sillcock thought, following a chronic strain to her

neck, the plaintiff’s symptoms seemed to be out of proportion to the stated

cause.

319 As it was so long since the plaintiff had worked, it was unlikely, in Dr Sillcock’s

view, she would be able to perform unrestricted pre-injury duties on a regular

basis. She considered the best thing for the plaintiff would be for her to work



but, realistically, she was unlikely to be able to sustain work in suitable

employment for more than ten hours a week. She thought the present

prognosis was poor, given the plaintiff’s presentation and the length of time

she had been off work.

320 Dr Sillcock thought the plaintiff needed to avoid heavy lifting but did not

believe that she really had any other functional restrictions despite her

presentation. Given the duration of the plaintiff’s situation, the likelihood was

the restrictions were permanent.

321 Dr Serry, psychiatrist, examined the plaintiff in October 2015. She was then

complaining of right-sided neck and shoulder pain over the right shoulder

blade extending down the back, right upper arm pain with a burning and

twisting sensation and tingling and numbness extending down her right arm.

322 The plaintiff told Dr Serry she struggled at work, had attempted some

volunteer work and some study, but she could not cope with the demands of

either. She lived at home with her husband and parents because of her

physical restrictions. Her social and recreational life had changed

substantially. She was previously playing A Grade netball, but she had

returned to netball only at a bottom level. She socialised infrequently and

found she invariably had to leave events early, given her combination of pain

and fatigue.

323 The plaintiff, having talked about the particularly difficult first year after injury

when she was grieving for her loss of lifestyle said, over the years, she had

been somewhat able to cope with the terms of her situation as being a new

reality. Since then, she felt there had been a degree of improvement. She

remained motivated and interested but frustrated at times, although she did

state she learnt to manage her frustration better.

324 The plaintiff stated there had been some change to concentration and

memory, her sleep was “rubbish,” confidence and self-esteem were not as



good, and she described feeling rather stressed and tense.

325 On examination, there was no abnormality of thought stream or form. Content

revealed an ongoing preoccupation with the plaintiff’s pain restrictions and

lifestyle change. There were no psychotic features or suggestion of any

perceptual disturbance in terms of hallucinations.184

326 Dr Serry thought, from a psychiatric point of view, the plaintiff appeared to

have become quite depressed, anxious and particularly frustrated in a year or

so post injury, but settled, to a degree, once antidepressant medication was

commenced. She is no longer particularly depressed, but somewhat anxious

and apprehensive and also frustrated, to a degree, by her circumstances.

327 Dr Serry noted the plaintiff remained on antidepressant medication but was

not under the care of a mental health professional, having only briefly seen a

psychologist early on.

328 Dr Serry thought it appeared the plaintiff developed, at the very least, an

Adjustment Disorder with Depressed and Anxious Mood and, perhaps Major

Depression with anxious features, in the first year or so following injury. Since

then, her psychiatric condition at least had improved with antidepressant

medication, but she did have persistent pain which, according to various

specialists, was difficult to explain.

329 Dr Serry thought a diagnosis of Somatic Symptom Disorder with predominant

pain, persistent and of moderate severity, could be considered; however, the

plaintiff did not present as being excessively anxious about her pain, nor was

she disproportionately preoccupied by it.

330 Dr Serry thought the most appropriate psychiatric diagnosis was a largely

controlled Adjustment Disorder with Anxious and Depressed Mood. He

considered that psychiatric injury was not significantly impacting on the

184 The plaintiff attended Maroondah House on 2 June 2013 with a two-day history of hallucinations. No

organic cause was found – the Practice file



plaintiff’s ability to engage in social and recreational activities and various

ADL’s, but her ongoing pain, per se, produced a number of restrictions.

331 Dr Serry did not consider the plaintiff’s psychiatric condition would restrict her

working in her pre-injury job or working fulltime on a regular basis. He thought

her prognosis was mixed, noting she seemed to come to terms with her

ongoing physical restriction and he did not anticipate any substantial clinical

change in her presentation.

Vocational evidence

332 Kaye Angel, human resources consultant from Flexi Personnel, reported in

2015. She did not think the plaintiff had any capacity for pre-injury or

alternative employment or the ability to retrain.

333 In her view, even the lightest kind of work required punctuality, regular

attendance and a consistent capacity to do work and, on the plaintiff’s current

presentation, she would not be capable of it.

334 Ms Angel sourced the relevant website which detailed the earnings of a film

video editor, ranging from $51,546 to $85,518 per annum. For a film,

television, radio and stage director, the average salary was $65,780.

The Defendant’s medical evidence

335 On 5 August 2008, Dr Krigsman recorded: “attending physiotherapy Mr S

Wigg for painful neck. Slept in Motel 2 weeks ago and changing job where

more keyboard work. Otherwise well. C6/7 right injury.”

336 Dr Parnham at the same clinic, on 13 August 2008, noted the plaintiff’s right

neck was still sore and that there was no known injury.

337 Dr Krigsman noted, on 15 August 2008, that the plaintiff had a sling and was

still in pain. Onset was 28 July pm neck pain and awoke in severe pain. Dr

Sasidharan at that Clinic noted a similar history of onset on examination on 26

August 2008.



338 Dr Chua wrote to Dr Blombery in May 2009, advising the plaintiff had

completed medical acupuncture and, overall, felt she was maybe about 50 per

cent better. He noted the plaintiff’s pain was non specific and possibly

psychosomatic and thought when the plaintiff’s WorkCover case had resolved,

she would get better in due course.

339 Dr Krigsman provided a number of Certificates of Capacity certifying the

plaintiff totally unfit for work from July to September 2009. He described neck

pain referred to the right arm with an onset of the said date, diagnosing

C6-7-8-T1 cervical radiculopathy and also possible Thoracic Outlet

Syndrome.185

340 On 23 November 2010, Dr Jack Wodak from Malvern Neurology wrote to Dr

Blombery thanking him for referring the plaintiff.

341 On examination, Dr Wodak noted there was a pattern of non-organic

weakness in the shoulder, muscles, elbow and hand. There was an

impairment of dexterity characterised by a slowness and clumsiness of

execution which was not suggestive of an organic disturbance.

342 Dr Wodak thought the plaintiff had a number of signs which were clearly not

organic in nature. He arranged an MRI scan.

343 Dr Wodak wrote to Dr Blombery again in January 2011, having reviewed the

plaintiff. He noted the MRI scan of the brain and cervical spine were normal

and showed no obvious difference in bulk or signal in the trapezius muscle on

either side. He confessed, again, he felt there was a difference, but he

accepted it could not be a significant one, or one that helped to explain the

plaintiff’s symptoms, and he did not have an adequate explanation for them.

He queried whether hypnosis would be appropriate.

344 In October 2013, Dr Wodak wrote to the Vision Eye Institute noting he could

185 At the time of these certificates, the plaintiff was performing in the Witches of Eastwick – T142



not help the plaintiff neurologically. He noted the plaintiff had headaches

virtually all year. She spent much of her day watching television and played

competitive netball two to three times a week and conducted an occasional

Tupperware party, but it appeared she did little else.

345 Dr Wodak advised he believed the plaintiff had tension headaches. He had

started her on scalp massage and noted it may be worth stopping the Pill if

there had been no improvement though, frankly, he thought it was unlikely to

prove helpful.

346 Dr Wodak wrote to Dr Mayer at the Vision Eye Institute again in November

2013, noting scalp massage proved unhelpful. He noted the dentist had

advised the plaintiff she had TMJ and was providing her with splints. He did

not believe her headache was due to that condition. He thought, if the splint

was unhelpful, it might be worth exploring hypnotherapy. Unfortunately, he

was not able to suggest a hypnotherapist, but advised the plaintiff to explore

whether any of the psychologists in her area offered that treatment.

Medico-legal evidence

347 Dr Bolzonello, sports physician, examined the plaintiff in October 2008 at the

request of Allianz.

348 The plaintiff’s history was that her symptoms first occurred on the said date.

There had been no incident or injury at work that day, or the proceeding

weekend when no sport had been played. There had been a return trip to

Ballarat as a car passenger.

349 The plaintiff then advised she felt she was a day-to-day proposition, having

good and bad days. She was having physiotherapy two to three times a

week.

350 The plaintiff sat comfortably through the examination.

351 Dr Bolzonello thought the clinical picture suggested radicular pain and he



could see why a C6-7 radiculopathy was written on the WorkCover Certificate

but he did not think the sensory symptoms involving the three middle fingers

were explained by one nerve root. He felt that work, as described, would

unlikely cause a nerve root lesion, given the nature of the work and what

sounded like quite reasonable station ergonomics.

352 Dr Bolzonello noted that investigations to date were normal.

353 On the current information, Dr Bolzonello thought the best fit diagnosis was a

Myofascial Pain Syndrome with referred upper limb pain due to an underlying

pain generator. Alternatively, simple cramp in the hand and increased muscle

tension from anxiety resulting in facet joint stiffness could be a plausible

hypothesis.

354 Dr Bolzonello noted the symptoms arose during the course of working. No

incident or injury occurred and if a disc prolapse was found on MRI scan to

explain the plaintiff’s symptoms, then he would say the condition is not work

related, as he did not see the nature of her employment to cause one to

occur.

355 Dr Bolzonello then thought the condition was still contributing to an incapacity

for work but he thought the plaintiff was not fit for pre-injury duty and could

commence routine administration work for four hours a day, and increase

these hours over two to four weeks to her pre-injury hours.

356 In a supplementary report of December 2008, when asked to respond to a

diagnosis of neuritis, Dr Bolzonello suggested a report should be obtained

from a treating neurologist.

357 Dr Chris Baker, specialist in occupational medicine, examined the plaintiff in

February 2009.

358 Dr Baker found the plaintiff had a good range of mobility in the right arm, but

abduction and extension tended to cause increased symptoms. He believed



she was probably suffering with a Thoracic Outlet Syndrome.

359 Dr Baker found it difficult to pinpoint a time in terms of onset. He agreed that

the plaintiff was more likely to have injured her neck from undertaking

activities outside the workplace, such as playing netball, but there was no

evidence that she did, or that she injured her neck at work. He could not

identify any clear contributing factors, although he believed netball would be

likely to be a contributing factor to the development of her condition than

working as a call centre operator.

360 Dr Baker then thought the plaintiff was not capable of undertaking unrestricted

employment. He considered she could undertake restricted duties where she

was not undertaking heavy lifting or placing a strain on the right arm at the

shoulder girdle.

361 Dr Baker did not think any data entry work would be related to the injury. In

his view, the plaintiff was not precluded from full time work once her condition

improved. He considered the Return to Work Plan at the time was

appropriate and reasonable, and that a graduated increase in duties and

hours was reasonable.

362 Dr Anthony Sheehan, psychiatrist, examined the plaintiff on behalf of Allianz in

September 2009. He then diagnosed an Adjustment Disorder with Depressed

and Anxious Mood.

363 Dr Sheehan thought the prescription of Lovan was reasonable and

appropriate for the plaintiff’s condition and that psychological treatment was

appropriate. He noted that the plaintiff reported that there had been some

improvement in her symptoms with stabilisation of her mood, and reduced

anxiety with the current treatment plan. He thought she should continue with

antidepressant medication for at least a year, and psychological counselling

should focus on self-management strategies.



364 From a psychiatric perspective, Dr Sheehan thought the prognosis of the

plaintiff’s Adjustment Disorder was directly linked with that of her physical

injury. He considered that she had a diagnosable psychiatric condition that

was wholly and predominantly related to her compensable cervical injury.

365 Associate Professor Balla, consultant neurologist, examined the plaintiff in

October 2009.

366 The plaintiff described pain at rest without analgesics as 4 out of 10, and

worsening to 8 out of 10. As a result, she did very little, because her pain was

so bad when she tried to do things. She spent the day doing exercise and

she might watch television and have singing lessons. She also played netball

once a week. Some weeks she was better than others but not as good as she

used to be. When she played netball her shoulders were taped.

367 On examination, neck movements were limited by about 30 per cent of range

towards the right and there was no spasm of neck muscles. There was a loss

of sensation to light touch and pinprick in a non anatomical distribution.

368 Associate Professor Balla thought the plaintiff’s pain had a muscular origin.

There was no evidence of nerve root involvement, and noting the tingling in

her fingers and forearm, commented that that was not in the anatomical

distribution of any specific nerve and tingling developed when very light

pressure was exerted in the upper arm in particular.

369 Associate Professor Balla did not believe the plaintiff had a Thoracic Outlet

Syndrome, noting the pain was very diffuse. The tingling was not in any nerve

distribution but came on, in particular, when the muscles were used or when

there was pressure exerted over them. He thought there was no evidence for

nerve root impingement, either clinically or from investigations previously

performed. He believed the original problem related to muscle overuse and,

thus, related to typing.



370 The present situation on the other hand, in his view, may relate, to some

extent, to the original injury, but the plaintiff fitted into a group of conditions

recognised as Regional Pain. He thought it likely there were significant non

organic factors associated with this, and from this point of view, ongoing

psychiatric advice was clearly necessary. He thought pain management

which was being undertaken was appropriate.

371 Associate Professor Balla thought the plaintiff’s condition was of muscular

origin and not related to any nerve root impingement. The present condition

was a Regional Pain Syndrome with significant psychiatric components. He

thought the plaintiff required ongoing management from a pain specialist.

372 At that stage, the plaintiff was not able to return to work on account of the pain

being severely aggravated by activity. Associate Professor Balla thought she

would be fit for a rehabilitation program of, possibly, one or two hours’ work a

day, gradually increasing. He thought it unlikely that she would return to her

previous employment at any stage in the future and thought her condition had

not stabilised.

373 Associate Professor Balla considered the original injury was a repetitive strain

injury related to typing and the plaintiff now had a Regional Pain Syndrome

which may be partly related to the original injury.

374 The plaintiff was seen by Dr Mary Wyatt, occupational physician in August

2010.

375 The plaintiff was able to remove her top for the purposes of examination.

Cervical neck movements were reduced and right shoulder movements were

restricted. There were non organic findings in relation to testing of the right

arm.

376 Dr Wyatt noted the plaintiff had reduced triceps reflex on the right, which was

consistent with a lesion at C6-7. There were no other specific features to



indicate brachial neuralgia, but the reduced reflexes on the right suggested

there had been pathology at that level. She was left with the impression that

the plaintiff’s current problem represented a combination of physical and non

organic factors.

377 In Dr Wyatt’s view, working 32 hours per week in a call centre position would

not be expected to result in a disc protrusion of the neck, brachial neuralgia or

Thoracic Outlet Syndrome. The type of work the plaintiff undertook had not

been shown to increase the likelihood of cervical problems causing referred

pain into the limbs. That type of work was often associated with neck tension

but not the type of problem the plaintiff had developed.

378 Dr Wyatt noted the demands on the plaintiff’s neck in her job were

substantially less than her non work activity and considered that work had not

been a significant factor in the development of the plaintiff’s problem or the

persistence thereof. An example was the plaintiff’s condition worsening a few

weeks ago when she had obviously not been at work for some time. In her

opinion, the plaintiff’s employment was not an ongoing cause of her neck and

arm problem.

379 Based on the plaintiff’s complaint of difficulty with repetitive keying, Dr Wyatt

thought she was not fit to return to pre-injury duties and hours. She

considered, however, the plaintiff had a current work capacity. She noted

over the last few months, the plaintiff had been doing dance classes, playing

netball at a lower level and had started to study. She was writing with her

right hand and using Dragon Dictate for more demanding work. She was

studying up to five hours a day, although she advised much of that was

reading.

380 In Dr Wyatt’s view, the plaintiff was fit for a range of tasks that did not require

a lot of repetitive activities with her non dominant hand and she should not be

required to use a keyboard for extended periods. It would be sensible that



she work up to 25 hours a week, at least in the first six months, and she was

fit for modified or alternative duties with those restrictions. She thought it

would be preferable the plaintiff change her position intermittently and there

was some variation in her tasks.

381 Dr Wyatt, noting some non-organic or nonphysical findings, thought a focus

on resuming a more normal existence, developing a structured routine with

normal sleep patterns was appropriate. A regular form of activity and focus,

whether it is work or studies, was appropriate, and she recommended

continued use of medication.

382 Dr Wyatt thought the suggested jobs were appropriate. Other options would

be working as a student assistant in a tertiary classroom. That might include

being a scribe for the person in the classroom, assisting with out of work

activities, such as proofreading. Dr Wyatt considered working at a student

service doing customer service activities or reception type work would be

appropriate, and a reception role would need to avoid a lot of computer work.

383 Dr Wyatt thought the plaintiff had a capacity for employment. She noted the

plaintiff was currently studying and looking to complete advanced studies and

then complete her Diploma of Education to become a teacher.

384 Dr Jager, psychiatrist, examined the plaintiff in September 2010.

385 Dr Jager noted the plaintiff last felt completely well in 2008. She gradually

developed right shoulder pain but was not sure what she attributed it to. The

plaintiff told him she felt good most of the time and enjoyment of life was

good. She had difficulty getting to sleep but her energy was okay. Appetite,

libido and concentration were okay, but she was fuzzy whilst on Panadeine

Forte. At that time, there was a certification for alternate duties.

386 Dr Jager noted the Vocational Assessment Report dated 11 January 2010,

identified suitable employment options, including private tutor, teacher, music



teacher, sports umpire and sales assistant.

387 Dr Jager noted the plaintiff initially dragged herself into the interview

complaining of medication withdrawal effects, but then stood and walked

gingerly at the end. She had a normal emotional tone, her speech and

thought stream were fluent and coherent, and she described no bizarre

beliefs. She described no abnormal normal sensory perceptions, was alert

and attended well to the interview.

388 Dr Jager thought the plaintiff had a Chronic Pain Disorder associated with

both psychological factors and a medical condition. He noted she was being

treated with antidepressants, as appropriate, as it was likely she had a Major

Depressive Disorder that had been effectively treated. He thought an attempt

should be made to wean her from that treatment over six weeks.

389 Dr Jager thought the plaintiff would be still able to undertake activities of daily

living and her work capacity would not be reduced if her current treatment was

ceased. He thought employment remained a cause of her condition if

musculoskeletal problems were still related to work.

390 From a psychiatric perspective, he considered the plaintiff could return to pre-

injury alternative duties within her physical restrictions, if any. He did not

identify any other factors affecting her recovery, noting she was active in non

work related activities, including amateur theatre. From a psychiatric

perspective, he thought she was fit to undertake all the suitable employment

options identified in the January 2010 report.

391 Mr Gale examined the plaintiff in 2012 for the purpose of an AMA

Assessment.

392 On examination, there were inconsistencies between the plaintiff’s level of

head and neck movement on examination and formal examination. She had

to lie down for 20 minutes in the waiting room prior to the consultation..



393 Mr Gale reported that current clinical examination would suggest that

abnormal clinical findings were predominantly of a neurological type with a

significant pain component. He thought the prognosis was poor but the

plaintiff’s condition had not stabilised.

394 Mr Gale had not identified any specific musculoskeletal injury and thought the

plaintiff appeared to have sustained some type of Somatoform Pain Disorder

with some neurological features that required evaluation by a neurologist. If it

was decided the plaintiff had some sort of pain disorder, she should be

referred to a consultant psychiatrist.

395 Mr Gale considered the prognosis was probably poor for the short term, noting

she was about to undertake a pain management course.

396 Dr Stephen Stern, psychiatrist, examined the plaintiff in February 2012.

397 On examination, the plaintiff’s affect was not obviously depressed or anxious

and there was a normal range of emotion. She told him, in terms of the future,

she would like to complete her Masters and then teach. Her confidence was

maintained.

398 There was no evidence of thought disorder, delusions or hallucinations.

Memory and concentration were intact.

399 Dr Stern thought that there was, initially, an Adjustment Disorder to the

plaintiff’s pain, but that had resolved with antidepressant medication. He

considered there was no current psychiatric state or disorder. He thought that

she needed long term antidepressants to prevent a relapse of her Adjustment

Disorder and they could be prescribed by her general practitioner.

400 Mr Klug, neurosurgeon, examined the plaintiff in August 2013.

401 The plaintiff gave Mr Klug a history that three to four weeks prior to the said

date, she experienced tightness and discomfort in the neck spreading to the



shoulders.

402 The plaintiff told Mr Klug she had not returned to any form of employment but

she had done occasional days of voluntary work, involving activities in

amateur theatre, in early 2012.

403 The plaintiff told him that she played netball two to three times a week in a fair

manner, but there was some impairment. She could not catch the ball

normally.

404 The plaintiff told him she was able to cope with activities of daily living. If she

was at home, she spent time in a special recliner chair which supported her

neck and seemed to help her condition.

405 Mr Klug noted that during the interview, the plaintiff appeared to sit in comfort

and other times, he did not note what appeared to be any significant

restriction of involuntary movements.

406 On examination, there was some mild cervical movement restriction.

Neurologically the plaintiff was normal.

407 Mr Klug was not convinced of any definite weakness of any muscle group in

the right upper limb and there was no wasting. He was not convinced of any

true loss of sensory perception.

408 As far as Mr Klug could gather, no firm diagnosis had been offered. He found

it a little hard to understand how, if her symptoms were as severe as she

alleged, the plaintiff is able to participate in activities such as playing netball,

on what appeared to be a fairly regular basis.

409 Mr Klug was unable to provide a precise diagnosis accounting for the

plaintiff’s current presentation. He felt it unlikely the symptoms were due to a

disorder involving her neck, although he had not seen an MRI scan which was

reported as normal. He did not believe she was suffering from a Thoracic



Outlet Syndrome, or any other definable neurological disorder.

410 Mr Klug thought the plaintiff appeared to be suffering from a Chronic Pain

Disorder. He noted she presented her history in a sincere manner. He did

wonder whether or not functional factors could be contributing to her

presentation, but saw no reason to suggest she was deliberately trying to

mislead in regards to the severity of her condition.

411 Mr Klug thought, in the absence of any specific condition, it was difficult to

define the exact cause of the plaintiff’s condition. He noted the details of her

employment and thought it possible that such may have been responsible for

a soft-tissue injury, but he found it hard to explain why, after ceasing work, her

condition had not substantially resolved. All he could say was that it was

possible, but by no means certain, employment was a contributing factor to

her ongoing condition.

412 Mr Klug thought it reasonable the plaintiff continue with medication, with

supervision from a medical practitioner. He believed she could undertake

activities of daily living without assistance.

413 Mr Klug concluded, from a medical point of view, this was a somewhat

complex matter in regard to diagnosis, causation, the association with the

plaintiff’s previous employment and other undefined matters. As indicated,

however, he noted she presented in a sincere way, but he certainly did

consider that functional factors could be playing some role in her current

presentation.

Certificates

Dr Krigsman

414 The plaintiff was certified unfit for all duties from August to December 2008

when she was certified fit for light duties of approximately 9 hours per week.

This certification continued until 27 May 2009 when she was again certified

unfit for all duties. In November 2009, the plaintiff was certified fit for 6 hours



per week modified duties. There was a similar certification in June 2010.

415 In early 2011, the plaintiff was certified unfit for any duties.

Vocational evidence

416 An NES Vocational Assessment Report of July 2009 identified suitable

employment options in order of priority were: private tutor/teacher, music

teacher/private tuition and vocational education teacher.

417 In a subsequent NES Vocational Assessment Report of January 2010, in

order of priority, the following were identified as suitable employment options:

private tutor/teacher, music teacher/private tuition, sports umpire and sales

assistant within physical levels. There were also wage details in relation to

the specified positions.

418 In that report, it was noted the plaintiff reported she was still interested in the

identified vocational options. Her long term career goal was to gain

employment as a secondary school teacher specifically teaching media, music

or drama.

Video surveillance

419 Exhibits 1 to 3 were films of the plaintiff playing netball on three different days:

16 July 2014, 9 September 2015 and 3 September 2014.

420 Exhibit 4 was the YouTube footage of the plaintiff performing in the Boy from

Oz on 10 October this year.

Facebook and photographs

421 There were a number of pages/photographs from the plaintiff’s Facebook

page and other photographs which were relied upon by the defendant and put

to the plaintiff in cross-examination as summarised earlier in this judgment.

Claim documents

422 In an Occupational Health and Safety Incident and Injury Hazard Report dated

4 September 2008, Camilla Irwin, team leader, noted the incident in relation to

the plaintiff. The plaintiff complained of dizziness and headache, and also



mentioned side-effects of medication (Steroid) for neck/arm injury. The injury

was described as strain pulled muscled.

423 In terms of the event, the plaintiff mentioned her neck injury may have been

caused by a combination of netball, theatre rehearsal and work (three

activities in one day). The plaintiff complained of headache and dizziness.

Prior to her complaint, the plaintiff had come to work wearing a neck brace.

424 Ms Irwin confirmed the plaintiff said the injury may have been caused by a

combination of three factors.

425 On 22 October 2010, Allianz wrote to the plaintiff advising that she was no

longer entitled to weekly payments for medical and like expenses because her

incapacity was no longer work related. That decision was based on the report

of Dr Mary Wyatt and Dr Alan Jager, psychiatrist.

Overview

426 The first issue for determination is whether the plaintiff’s keyboarding duties

with the employer were a cause of her right upper limb injury.

427 Counsel for the defendant submitted that I could not be satisfied as to

causation given the plaintiff’s uncertainty as to the circumstances of her injury

and also medical opinion that an injury of the nature suffered by the plaintiff

could not be related to her work duties.186

428 Although she initially was unsure as to the exact cause of her injury and gave

a two other possible causes when she first reported it to the employer in

September 2008, the plaintiff did mention work to her Team leader when

describing the event that caused her injury.

429 Further, earlier when the plaintiff attended Dr Krigsman on 5 August 2008, in

addition to his note “slept in motel two weeks ago”, he also noted “changing

job where more keyboard work.”

186 T8, T214



430 It is unclear whether the plaintiff suffered injury on the said date or by a

gradual process leading up to that date. The details in the claim form signed

by her on 29 August 2008 suggest that the injury was of sudden onset on the

said date, whereas subsequent histories to doctors have been of the

progressive development of pain over a period of time.187

431 Whatever be the true situation, I accept that the plaintiff’s keyboarding duties

were a cause of her injury.

432 In terms of the second limb of the causation issue, whilst there is a difference

of opinion medically, I accept the plaintiff’s right upper limb injury resulted from

her keyboarding duties. The preponderance of medical opinion is largely to

this effect, with Dr Wyatt and Dr Baker having a different view.

433 I accept the plaintiff suffered a compensable injury to her upper right

limb/shoulder as a result of her work duties with the employer over a four-

month period.188

434 The role employment plays in the plaintiff’s present condition some seven

years after injury is in dispute.

435 It was conceded there was certainly support for the view the plaintiff’s

condition originally had an organic basis but it was submitted by counsel for

the defendant that was no longer the situation. Whilst it was not submitted the

plaintiff’s condition lacked a substantial organic basis at the present time,

counsel for the defendant submitted that those doctors upon whom the

plaintiff relied have based their opinions on inaccurate histories from her as to

her true level of activity.189

436 I am mindful of what was said by the Court of Appeal in Dordev v Cowan190 in

relation to the plaintiff’s credit in this type of case. As Chernov JA said at

187 T215 188 T233 189 T9 190 [2006] VSCA 254



paragraph 14 of his judgment, a plaintiff’s credibility is relevant not only to

whether his evidence should be accepted but it is also relevant to the

reliability of the medical evidence because the opinions of the doctors are

essentially dependent on the credibility and reliability of the history given to

them by the plaintiff.

437 Accordingly, in this case what appear on their face to be medico-legal

opinions supportive of the plaintiff’s claim must be looked at in the light of my

views as to the plaintiff’s credit.

438 I agree with a number of medical practitioners who have commented that this

is an extraordinarily difficult case. Investigations have not demonstrated any

specific pathological process.191

439 The consensus of medical opinion to the extent the medical practitioners have

been able to make a diagnosis, suggests there is some physical component to

the plaintiff’s right upper limb condition but most doctors are unsure of the

diagnosis.

440 There are a range of views in this regard including soft tissue injury, acute wry

neck, Thoracic Outlet Syndrome, pain sensitisation, a Myofascial Pain

Syndrome, a Chronic Pain Disorder and the two other diagnoses described by

Mr Hjorth.

441 Whatever be the correct diagnosis, the injury which gives rise to the

impairment is not itself the subject of evaluation. It is the impairment which is

to be assessed as being or not being serious.192

Pain

442 As Maxwell P said in Haden Engineering v McKinnon:193

“The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors). “

191 T217 192 Richards v Wylie (2000) 1 VR 79 at 86 per Winneke P 193 (2010) 31 VR 1 at paragraph [11]



443 In the witness box, the plaintiff described her pain had recently worsened,

rating it at 9 out of 10, despite medication. She has pain in the right

neck/shoulder area, with throbbing pain down between the spine and shoulder

blade and pain on the inside of her upper arm. She occasionally experiences

tightness across the top of her right shoulder. She also experiences tingling

down her right arm to her fingers.

444 The plaintiff described the nature of her pain in similar terms to Dr Sillcock in

May this year, although then rating it at 6 out of 10 and 9 out of 10 on bad

days.

Treatment

445 The plaintiff has been under the care of the Practice for her work injury since

August 2008. Dr Krigsman has been her principal treater.

446 In 2010, the plaintiff was referred to neurologist, Dr Heywood, who suggested

conservative treatment. He had difficulty diagnosing her condition and

referred her to Dr Blombery.

447 Dr Blombery has continued to treat the plaintiff over the last five years,

carrying out infusions at various stages with limited success. He also now

prescribes Durogesic patches.

448 In late 2008, the plaintiff had some physiotherapy with Simon Wigg. She next

had physiotherapy from Angelo Ratachandra at Genesis in 2010. There is no

report from that practitioner. He apparently advised the plaintiff to undertake

activities such as netball.

449 The plaintiff also attended a pain management program in Caulfield over a

number of months in 2012.194 There is no report available from that

organisation.

450 The plaintiff’s treatment has been largely medication based, being prescribed

194 T84



a range of significant medication over the years.

451 Whilst counsel for the plaintiff relied on this intake as indicating

seriousness,195 counsel for the defendant submitted the taking of medication

did not necessarily found a serious injury. It was submitted that the plaintiff’s

intake seems to have had no effects and, if anything, her condition is

worsening. Further, the plaintiff’s medication is prescribed on the basis of

subjective pain reporting and what her doctors understand to be the extent of

her disability based on her history.196

452 In addition to pain and the need for treatment, the plaintiff claims her injury

has resulted in significant restrictions in all facets of her life.

453 The reliability of the plaintiff’s evidence in this regard is obviously an important

consideration when determining whether the claimed consequences are

serious and long term.

454 In my view, the plaintiff’s demonstrated capacity is at odds with her complaint

of almost disabling pain, requiring her to frequently spend 20 hours a day in

bed.

Credit

455 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:197

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

456 Counsel for the defendant submitted the plaintiff was an intelligent young lady

who presented confidently and understood questions and gave her answers

accordingly. However, it was submitted the plaintiff gave many of her

answers in a manner which was not candid or frank. She was cagey with a lot

of answers, not wanting to commit to times and places or her involvement in

various activities unless pressed to do so. It was submitted some of the

195 T242, Kelso v Tatiara Meat Company Pty Ltd (2007) VSCA 267 at 199 per Dodds-Streeton JA 196 T222 197 (2010) 31 VR 1 at paragraph [12]



plaintiff’s evidence was “like drawing teeth”. She was very reluctant to make

concessions about her involvement in a number of activities.198

457 Counsel for the plaintiff submitted the plaintiff should be accepted as a truthful

and reliable witness in all material respects. Any lack of disclosure as to her

involvement in musical theatre was not relevant. Her earning capacity was

not in live theatre – “she is not Julie Andrews”. It was submitted the plaintiff’s

involvement in theatre was far from professional.199

458 It was submitted it could not be suggested that the plaintiff, her father, and

husband, have “concocted some sort of story to live a lie for seven years” at a

time which would be regarded as the most exciting time of the plaintiff’s life.200

459 Whilst the plaintiff might play netball or be involved in theatre productions, she

later pays for it with increased pain. It was submitted the clinical records

speak for themselves. The plaintiff’s general practitioner relies on not only

what she tells him, but clinical examination.201

460 This is a very unusual case where the issue of the plaintiff’s credit plays a

major role.

461 As I indicated during the hearing, I find it impossible to reconcile the plaintiff’s

claimed level of disability (supported by her family members on affidavit)

having to spend 20 hours a day in bed, requiring a special chair and strong

medication with her ability to play netball and engage in musical theatre and

related activities ever since her injury.

462 The following are my reasons for reaching this conclusion.202

198 T208 199 T230 200 T231 201 T233 202 Woolworths Ltd v Warfe (2013) VSCA 22 at paragraph [139]



The Plaintiff’s affidavits

463 There was no mention of the plaintiff’s significant involvement in musical

theatre in her first affidavit. In her second affidavit, there was one paragraph

in which she gave the impression she had returned to musical theatre only

this year and on a very limited basis.

464 I do not accept the plaintiff’s explanation that there was little detail in her

recent affidavit in this regard as she was updating her earlier affidavit. Lack of

mention by the plaintiff of her activities in this area is also a constant theme

that flows through numerous histories to doctors.

465 The plaintiff has attended various doctors whilst engaged in theatre

productions. The most recent examination by Dr Serry in October 2015 was

only days before the commencement of the Boy from Oz and the plaintiff had

been attending rehearsals for some months. There was no mention in his

report of this activity.

466 I do not accept that the plaintiff has told doctors, such as Dr Blombery, of her

involvement in musical theatre and that they had simply failed to note it in their

reports.

467 The plaintiff totally played down her involvement in musical theatre.203

Clearly, her affidavit is not an accurate representation of what have in fact

been ongoing, regular performances since her injury. Further, that

involvement extends beyond standing singing in a chorus, as her affidavit

suggests. In addition to singing, her performances have at times involved

choreographed movement and limited dancing – such as 30 seconds of tap

dancing in the recent production of Boy from Oz.

468 The plaintiff gave the impression that she did not do any physical activity or

dancing in the various productions. In my view, that evidence is simply not

203 T211



consistent with the level of activity shown on film and in the various

photographs which were tendered.204

469 The plaintiff also did not disclose her role as either the associate music

director or musical director, the latter, which I accept, would be a task

requiring real organisational skills and effort.205 Further, she has not disclosed

her membership of the Barbirra Committee, a role she has held for the last

two years.

470 Obviously there was no mention in the plaintiff’s affidavit of her nomination for

a Lyrebird award for one production. When issue was raised, the plaintiff

attempted to minimise the significance of the nomination, stating that it was by

default and not of any real significance.

471 Even when faced with the full details of her musical theatre involvement, the

plaintiff did not accept that such involvement was extensive stating – maybe it

was for some people, but not for her.206

472 Whilst counsel for the plaintiff agreed with the different picture painted by the

affidavit,207it was submitted this situation could be explained by the fact the

plaintiffs do not draw their own affidavits. It depended often what questions

they were asked.208

473 Whilst lawyers may make errors at times in a plaintiff’s affidavit, that is not the

situation in the present case, where there is clearly non disclosure by the

plaintiff of a number of significant, relevant matters.

474 I accept the plaintiff has retained the ability to rehearse and perform and

commit herself to musical theatre and that this situation will continue, the

plaintiff having recently auditioned for two further productions. Her

204 T212 205 T212 206 T103 207 T243 208 T244



involvement in musical theatre since her injury demonstrates a considerable

ability to concentrate, to work with others, and be reliable and attend

rehearsals.209

475 When the extent of her theatre involvement was put to the plaintiff, she

repeatedly attempted to play down her role.

476 I do not accept productions were in any way modified to cater for any physical

disability on the plaintiff’s part. There is no evidence from fellow cast

members to this effect.

477 I do not accept the plaintiff was able to lift her arm as shown in the 2009

production of Oklahoma because a fellow chorus member was supporting

it.210

478 Although not a major point, in cross-examination, the plaintiff denied she

would be able to carry a basket in her right hand. When shown doing so in a

production in July 2011, she maintained she could hold a basket then but not

now.

479 Whilst the plaintiff suggested she could not do some of the routines required

in the recent production of the Boy from Oz held in October 2015, she was

shown to move without any restriction in the film, shown at one time lying on

the floor kicking up her legs. Further, she conceded she did a tap sequence

for 30 seconds in that production.

Singing lessons

480 The plaintiff’s affidavits make no mention of her having singing lessons.

Whilst she told some doctors of the lessons, the plaintiff totally understated

the high standard she has achieved to date and her intention to do further

study.211

209 T226 210 T132 211 T213



481 In cross-examination, and in answer to my question, the plaintiff suggested

she undertook lessons for her enjoyment and was not formally assessed. The

true situation was however that the plaintiff had obtained a “B” in Grade 7 of

the Australian Music Examination Board (AMEB), a good result at a relatively

high standard.

482 The plaintiff then played down the significance of that grade, suggesting

everyone gets a “B”. I do not accept this is the case.

483 I am not satisfied, in the absence of supporting investigations or medical

explanation, why the plaintiff lacks the dexterity to play the piano and do other

activities such as cutting her food when she can play netball and dance

without any apparent restriction.212

484 Nerve-conduction studies were equivocal, and Dr Wodak thought there was

no organic basis to explain the lack of dexterity.

485 I do not accept the plaintiff has the level of difficulty dressing which she

describes. She had no problem putting on her jumper in the confined space

of her driver’s seat as shown on the video of September 2014.

Teaching

486 There is no mention in the plaintiff’s second affidavit of her doing any singing

teaching herself when this has been the case since earlier this year.

487 The plaintiff has been teaching one young child singing. Lessons are weekly

and the plaintiff is paid $15 per hour. There are plans for her to take on

another singing student. The plaintiff also tutors a special needs child in her

school work.213

212 T223 213 T225



488 With this level of activity and the apparent ability to move without restriction

playing netball, I do not accept the plaintiff has to spend 20 hours a day in bed

because of pain.

489 This situation was first mentioned by the plaintiff in her second affidavit,

although she maintains this has been the case for some years.

490 Whilst Dr Krigsman noted at various times that the plaintiff had difficulty

sleeping and at other times she was sleeping a lot, he did not note problems

of the magnitude now described by the plaintiff in this regard.

Work

491 The plaintiff deposed that she had last worked in March 2010.

492 However, the plaintiff did some work for Tupperware, although only for a short

time and with difficulty.

493 The plaintiff has also done voluntary work for Theatre People and other

organisations, setting up websites and taking photographs for various

productions and publications. Whilst the plaintiff stated she had done this

voluntary work for a couple of months, it seems she was involved with Theatre

Works from late 2010 to perhaps September 2011.214

494 The plaintiff was photographed doing some filming for Theatre People in

February 2011. She was shown sitting on a normal chair whilst doing so – a

totally different presentation to the young woman in a special chair in Court.215

Netball

495 The plaintiff mentioned netball in her two affidavits. She described her pre-

injury level as Division One and post-injury, Division Six. She described being

rarely able to play a full game without pain and using her left arm more when

playing.

214 T34 215 T209



496 There was lengthy cross-examination about netball, during which the plaintiff

gave the impression she had difficulty moving her head, using her arms to

throw and catch and she generally played in a very restricted fashion.

497 The plaintiff was not shown in the videos having any of these difficulties she

described.216 As I indicated during the hearing, the plaintiff appeared to play

normally, in a manner similar to other players on the court. She used both

hands to catch and throw the ball. She raised her arms to signal to

teammates at various times and she could run up and down the court freely.

498 It was not apparent that the plaintiff required any special breaks because of

her right upper limb condition. She participated in the games like every other

player. At times, the plaintiff contacted other players.

499 Further, I do not accept that the plaintiff stood back in games, save for a

couple of instances where she was playing in attack and the ball was down

the other end of the court.

500 I do not accept the submission by counsel for the plaintiff that the films were

taken of the plaintiff on a good day and she “paid for it afterwards”.217 Netball

is an activity the plaintiff enjoys and participates in regularly. She could not

play at all if she had the level of disability she describes.

501 The failure to show the film to the defendant’s doctors for comment does not

weaken the defendant’s case in these circumstances.218

502 The description of netballing in the plaintiff’s viva voce evidence was totally

inconsistent with the film. I accept that the plaintiff appeared to be sociable

with her teammates, smiling and enjoying the game. She was not sitting there

grimacing.

216 T223 217 T236 218 Church v Echuca Regional Health (2008) VR 566 at 100



503 The plaintiff did not disclose at any time that she played mixed netball. That

evidence came from her husband in cross-examination.

504 I find it quite extraordinary that with her claimed level of disability, the plaintiff

would even attempt the more physical game of mixed netball, let alone play

for a season of ten games as her husband described. 219

505 The plaintiff’s involvement in netball seems to be on the advice of her

physiotherapist at Genesis. There is no report from him explaining the basis

of this advice.

506 As Dr Blombery said, it is illogical the plaintiff can play netball and not be able

to work. Dr Sillcock had concerns about the plaintiff’s ability to play netball

given her described extremely high level of pain and restriction. Mr Klug also

commented that he found it a little hard to understand how, if her symptoms

were as severe as she alleged, the plaintiff was able to participate in activities

such as playing netball on what appeared to be a fairly regular basis.

507 The plaintiff also claims she no longer umpires because of her arm injury.

Umpiring was not mentioned in her affidavits.

508 The plaintiff obtained her umpire’s badge last year. It is unclear when she

ceased umpiring but it appears she was still involved in June this year.

509 I do not accept the plaintiff’s evidence that it is as difficult umpiring as it is

playing. Clearly, with umpiring, there is not the throwing and catching

required, or the contact with other players as when playing.

510 I cannot understand the plaintiff’s evidence that she has more difficulty

walking than she does playing netball. The need for a sling when walking

when the plaintiff is able to play netball is also nonsensical.

219 T214



511 In my view, the plaintiff’s arm injury has not significantly affected her ability to

socialise. She still enjoys the company of others at netball and theatre-related

activities and she has been able to form a relationship with her husband.

512 The plaintiff would not be able to engage in the range of activities set out

above if her pain was at the level she describes. It Is not just a matter of her

trying to get on with her life and forcing herself to get out of the house as she

described.220 It is not a case of good days and bad days as the plaintiff’s

counsel submitted.221

513 I do not accept that the plaintiff simply gets out of bed four hours a day, does

one activity and goes straight back to bed. That is totally implausible.

514 Whilst both the plaintiff’s husband and her father support the plaintiff’s claim,

both significantly understated her involvement in musical theatre and other

musical-related activities that the plaintiff also did not mention in her affidavits.

Loss of earning capacity

515 The plaintiff deposed that she intended to have a career in film and television.

Earnings in this type of employment range from $62,000 to $80,000.222

516 When interviewed by Work Focus in 2010, the plaintiff indicated her long-term

goal was to work as a secondary school student specifically teaching media,

music or drama.

517 The primary submission by counsel for the plaintiff was the plaintiff had no

realistic work capacity at all, given her problems with reliability and attendance

due to pain that she had therefore suffered the requisite loss of 40 per cent on

a permanent basis.

518 Given the level of activity engaged in by the plaintiff and also my findings as to

her credit, I do not accept this is the case.

220 T147 221 T233 222 Kaye Angel, report dated 7 September 2015



519 Medical practitioners who have found the plaintiff has no work capacity or

capacity for light work on reduced hours do not have the full picture of the

plaintiff’s lifestyle.

520 Whilst the plaintiff was certified unfit for all work in 2008, she continued her

involvement in Calamity Jane, having only two weeks off for physiotherapy.

The following year, when under the same certification, she performed in the

production of Oklahoma.

521 Performances have continued at other times when Dr Krigsman has certified

the plaintiff unfit for all work and when the plaintiff has seen other practitioners

and not advised them of this activity.

522 Musicals involve physical movement, concentration, memory and

performance. Lines and lyrics need to be learned. Commitment is required to

other cast members to attend for rehearsals and performances. The plaintiff

has been able to continue her involvement with these demands and enjoy the

activity.

523 During this time, the plaintiff has also been playing netball.

524 In all the circumstances, I am not satisfied that the plaintiff has a loss of

earning capacity of 40 per cent on a permanent basis.

525 The plaintiff has demonstrated an ability to study at a high level and achieve

excellent results in 2010 when not involved in theatre. I can see no reason if

she chose to study full time, taking time off theatre if necessary, she could not

complete her Masters degree and obtain employment in teaching or a related

field.

526 Accordingly, I am not satisfied the plaintiff has discharged the onus in terms of

rehabilitation and retraining pursuant to ss(g) of the Act.

527 Taking into account all the evidence, I am not satisfied the plaintiff has a



“serious injury” in relation to either pain and suffering or loss of earning

capacity.

528 There was an application in the alternative pursuant to clause (c) for a

psychiatric impairment.

529 As counsel for the plaintiff conceded in opening, from a psychiatric point, the

plaintiff’s Adjustment Disorder was very mild,223 but if it was going to be

suggested the plaintiff was suffering from a Chronic Pain Syndrome which

was non-organically based, then it was submitted the application was properly

brought pursuant to clause (c).224

530 The defendant did not seek to say the plaintiff had a psychiatric component to

her condition. It was submitted that it seemed clear she really had no

psychiatric condition at all. She had no support from an independent medical

examiner for any significant psychiatric condition, and she had not had any

psychiatric treatment.225

531 Whilst there has been a diagnosis of a Chronic Pain Syndrome by some

practitioners, in my view, any consequences thereof are not severe.226

532 The plaintiff has only had limited counselling in 2011 and she has not been

referred to a psychiatrist.

533 As was stated in Papamanos v Commonwealth Bank of Australia:227

“… There have been no symptoms and consequences seen in psychological disorders at the more severe end of the spectrum, including hospitalisation, significant psychiatric treatment and medication, and the more serious symptoms including suicidal ideation or attempts, and psychotic symptoms. The word ‘severe’ in the definition of the Act has been held to be a word of stronger force than ‘serious’.”228

223 T3 224 T4 225 T221 226 Veljanovska v Socobell Oem Pty Ltd (supra) 227 [2013] VCC 1491 228 at paragraph [68] per Judge O’Neill



534 Accordingly, that application is also dismissed.

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IN THE COUNTY COURT OF VICTORIA Revised AT ......4 The body function relied upon in this application...

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