Bas v TAC [2025] VCC 581

"On 17 September 2019, I was picking up my children from my brother's house and was on Pascoe Vale Road, Glenroy. I was stationary, indicating and waiting to turn right. Another vehicle, travelling at a high speed, hit my car from behind."[3]

1. An ambulance was passing at the time and stopped to render assistance. The plaintiff was taken to St Vincent's Hospital, where she was kept overnight and released the next day. There was some dispute as to both the description of her accident and the circumstances under which she came to be discharged, which I will deal with later.
2. However, to summarise briefly, the plaintiff complained at the time of attendance at St Vincent's Hospital of spinal pain, particularly in the neck, and had both CT and MRI scans on suspicion of spinal fracture. No abnormality was detected. She went home after being discharged on 18 September 2019. On her evidence, she did not work for six or seven months. In addition, she deposed to not being able to drive for about three months.[4]
3. She began seeing her treating doctor, Dr Fernando, in Epping around this time as her local treating doctor at the Somerton Road Medical Centre did not treat TAC claimants.
4. Dr Fernando referred her on for psychological counselling with Ms Metcalf in early February 2020.[5] At that point, she was reporting pain in her back and difficulty walking and sitting for long periods of time. Radiology was commissioned in respect of her ongoing symptoms of spinal pain. It is sufficient to say that radiology, be it x-ray, CT or MRI, taken since the motor vehicle accident has been serially reported as demonstrating that no abnormality was detected.
5. The plaintiff continued to see Ms Metcalf with ongoing psychological problems throughout 2020. On her evidence she claims to have returned to work in about April 2020, six months after the accident.[6] She gave evidence of having to reduce her hours.[7] In mid-2020, she reported to Ms Metcalf of working only six hours per week and similarly her payslips of this period record the same.[8]
6. The plaintiff was referred to a pain specialist, Mr Woodgate, in March 2021. He recorded that she was simply doing passive therapy which involved a small amount of stretching.[9] He considered altering her medications but wanted to refer her to the Dorset Rehabilitation Centre.[10] That referral did not result in a pain management program as there was dispute over funding with the TAC.
7. The plaintiff saw Mr Woodgate a few more times, and lastly on 19 May 2022. At that stage, she told him she had returned to work 12 hours a week for about four hours a day. She told him she had stopped all therapy save for some physiotherapy, was hoping to see a psychologist and had a referral to a psychiatrist, Dr Duraiswamy. She saw him in August 2022 on two occasions where Mirtazapine was added to her medication regime.[11]
8. In June 2024, the plaintiff bought the Starlight business back from Ms Abbas. She said this was for about $800,000 and it was so that her 18 year old son could run the business. Ms Abbas stayed on as the manager.[12] The plaintiff deposes to continuing to work about 9 to 12 hours per week in the business.[13]
9. In terms of treatment throughout 2023 and 2024, the plaintiff had virtually no treatment save for some physiotherapy and ongoing prescriptions of medication by her treating doctor. Then, in October 2024, she was referred to psychiatrist, Dr Tipirneni,[14] and had her first appointment on 20 January 2025.

1. It can be seen from the above that there is very little by way of orthopaedic, pain or psychiatric treatment. Throughout, however, the plaintiff has been taking a large amount of medication, both for pain and for psychiatric symptoms.
2. The defendant submits that the reliability of the plaintiff's evidence is critical. The defendant submits that the plaintiff is an unreliable witness and, as a result, the impairment consequences she complains of cannot be accepted. As this forms a central point in the defendant's case, it is necessary to deal with it at the outset. This is because, if the plaintiff is an unreliable witness, then it bears on an assessment of the overall evidence in the case, particularly the medical evidence she calls in aid, both from treating practitioners and medico-legal practitioners.
3. The defendant's attack on the plaintiff's reliability broke into two parts. The first relates to the evidence the plaintiff gave about the severity of the motor vehicle accident, and the second relates to the evidence she gave about the impairment consequences. The first part obviously flows into the second part. This is because the defendant submitted overall that the plaintiff's unreliability, embellishment and exaggeration of the severity of the motor vehicle accident was to bolster the claims as to the severity of the impairment consequences claimed. In the defendant's submission this was a designed manipulation and reflected the plaintiff's lack of credit.
4. Dealing with the first topic, as to the evidence surrounding the severity of the motor vehicle accident.
5. The defendant submitted that there were five particular areas where the plaintiff's evidence on this topic was unreliable.

(i) Did the plaintiff sustain spinal fractures in the motor vehicle accident?

1. The plaintiff deposed in her first affidavit,[15] in the following terms:

"I had a CT scan and an MRI at hospital. They provided me with a neck brace and I was told not to drive for 3 months and to have lots of bed rest and to have pain killers. The CT scan and MRI result showed that I had fractured lower back and neck."

1. On admission at St Vincent's Hospital, the attending doctor suspected that there were fractures of the lower back.[16]
2. However, it was put that the radiology did not show any such fractures,[17] and this must have been communicated to her prior to discharge. Despite this, it was put that the plaintiff had told some doctors that she in fact had spinal fractures and repeated this in her affidavit.[18]
3. These matters were put to the plaintiff, and it was suggested to her that she was exaggerating in her affidavit, and in her instructions to Dr Elder as to her condition at the time of the motor vehicle accident.
4. The plaintiff responded in cross-examination that that was her "belief".[19] Certainly that is consistent with the doctor's opinion upon admission.[20] However, she was discharged with a diagnosis of whiplash on trauma.[21] This indicates that at the time of discharge she likely knew that she did not have spinal fractures.
5. Furthermore, she had ultrasound, CT and MRI of the cervical spine in mid-2020, before Dr Elder's appointment.[22] In each of those radiological investigations, no abnormality was detected and certainly no fracture. However other material indicates that the suspicion of a fracture was not displaced by the time of discharge.[23] This material is from medical practitioners such as her treating doctor and her physiotherapist who could be expected, given their medical training, to have been able to read the radiology reporting. If they continued to operate under the assumption, that there was a suspicion of spinal fractures, it could be understood that a lay person had the same misunderstanding.
6. So even though at the time she came to be assessed by Dr Elder, the radiology did not reveal spinal fractures, I consider she might well have been under a misapprehension, similar to her treating doctor and physiotherapist, that she had spinal fractures at the outset. However, at the time of her second and third affidavit, that belief could not have been sustained given the serial radiology and the orthopaedic and neurosurgical opinions.[24] She did nothing to correct that initial statement in her first affidavit. The history given to Dr Elder then, and as is recorded in her first affidavit, is wrong. On this point, her affidavit material is unreliable.

(ii) What speed was the offending vehicle doing at the time of impact with the plaintiff's car?

1. It will be recalled that the plaintiff had deposed that the other vehicle was travelling at a "high speed" when it rear-ended her vehicle. It was put to the plaintiff that this was an exaggeration designed to further the impression that there was significant physical damage done to her in the motor vehicle accident.
2. The defendant pointed to recordings of the plaintiff's history taken by various doctors of speeds ranging between 70 and 90 kilometres per hour: to Dr Duraiswamy, 90 kilometres per hour;[25] to Dorset Rehabilitation Centre, 90 kilometres per hour;[26] to Dr Doig, 70 kilometres per hour.[27]
3. In contrast, it was put that the ambulance, which was on scene immediately and was likely best placed to take accurate recordings of the circumstances of the event, had recorded the estimated speed at impact of 30-60 kilometres per hour.[28] Furthermore, in the statement of Ms Petrus, the driver of the offending vehicle, she stated she was travelling under 60 kilometres per hour.[29]
4. When this was put to the plaintiff in cross-examination, she denied knowing the exact speed of the vehicle behind her at the time of impact. Rather, she said her impression was of high speed given that the other car approached so suddenly and quickly in her rear vision mirror.[30] This is a logical explanation given that the plaintiff had no particular gauge as to exactly how fast the offending vehicle was travelling, given she only glimpsed it briefly in her rear vision mirror prior to impact.
5. However, given that she disavowed being able to accurately tell its speed in cross-examination, it is unclear why, for example, her treating practitioner, Dr Duraiswamy, and also Dorset Rehabilitation Centre, have recordings which estimate the speed at 90 kilometres per hour. Certainly the speed limit in that area was 60 kilometres per hour, and any suggestion of a vehicle travelling at 90 kilometres per hour indicates its speed was well in excess of the speed limit at that location.
6. Given the plaintiff's evidence in cross-examination, in contrast to that provided in her affidavit and recorded by Dr Duraiswamy, in the Dorset Rehabilitation Centre notes and other medical practitioners, there is a real inconsistency in the plaintiff's evidence on the issue as to the speed which the other vehicle was travelling at the time of impact. I find there is unreliability in her evidence on this point.
7. The defendant also showed the plaintiff photographs of the rear of her car and suggested this was inconsistent with her evidence as to it being a high speed impact. I do not consider much weight can be placed on this point, as the damage to the rear of the vehicle may or may not be consistent with an impact of 30-90 kilometres per hour; there is no expert evidence on this point.

(iii) Was the plaintiff trapped inside the vehicle after the collision?

1. In his report of November 2020, Dr Elder recorded the plaintiff told him that after the accident, she was trapped in her car.[31] It was submitted this contrasted to the evidence of Ms Petrus.
2. In her affidavit, the plaintiff deposed "I was in shock and I couldn't open the driver's door to get out due to my pain".[32]
3. There is no evidence contained in the ambulance report as to how the plaintiff got out of her car. Similarly, there is no evidence in Ms Petrus' statement dealing with this issue. Given this, it cannot be determined if the plaintiff's evidence on this point was unreliable. I am prepared to accept it.

(iv) Was the plaintiff told that she could not drive for three months after the accident?

1. It will be recalled from the extract of her affidavit above the plaintiff deposed that she had been told at St Vincent's Hospital that she could not drive for three months.[33] However the discharge summary records that she was told, she could not drive for two weeks.[34]
2. When this alleged inconsistency was put to the plaintiff, she gave evidence that she accepted the note but that she in fact did not drive for several months because her car had not been replaced and, in addition, she was unwell.
3. This answer revealed that the plaintiff's affidavit was clearly incorrect and unreliable as to why she did not drive for several months after the accident. It was unreliable because it suggested that her injuries were so serious that the hospital had advised her not to drive because it was medically contraindicated. This was not the true state of affairs and in fact the hospital had only said she was limited for two weeks by medical reasons.
4. Further to this inconsistency, it was put to the plaintiff that she had bought a new car some two months after the accident, yet she gave evidence that she would not drive the car as she wasn't ready and continued to use Uber for school pick up and drop offs.[35] Why the plaintiff would purchase a new car yet not be able to drive it is unclear on the evidence.
5. On this topic, I find the plaintiff's affidavit evidence was unreliable.

(v) How long was the plaintiff unable to return to work by reason of her injuries?

1. In cross-examination, the plaintiff stated that she did not work for about six months: returning in April 2020.[36]
2. The defendant then said that, to Mr Ingram, medico legal psychiatrist, she had suggested she could not work for nine months, and to Dr Doig, she had suggested she was unable to work for nine months.
3. The plaintiff's affidavit did not depose as to when she actually returned to work but simply stated that, at the time of the accident, she was working full-time of 37 hours per week but, at the time of her affidavit, sworn in September 2023, she was working some 9 to 12 hours per week.[37]
4. The defendant took the plaintiff to fortnightly payslips from 27 January 2020 to 19 April 2020, which showed that she had worked 75 hours in those fortnightly periods and received income commensurate with these hours.[38] This was said to directly contradict the plaintiff's evidence as to the (i) date she returned to work, (ii) the hours she worked on her return and (iii) her capacity to work.
5. In support of her evidence, the plaintiff called in aid the affidavit of Ms Abbas. Her affidavit was sworn on 14 April 2025. She had bought the business from the plaintiff in August 2019. However, she continued to employ the plaintiff as a supervisor and manager, working a 37-hour week at the time of the motor vehicle accident. She deposed in her affidavit that she believed the plaintiff was off work for about five months. [39]
6. Pausing there, Ms Abbas' evidence is that of the employer who was paying the wage of the plaintiff at this stage. I consider that she had a real interest in ensuring that she paid wages according to the hours that her employees worked, and this was to confirm that her business remained accountable to its staff to make sure they were paid properly but also to make certain that the business was not paying for work which was not being done. This accords with ordinary experience of business operations and the apparent logic of accepting business records as accurate.
7. In that circumstance, I consider Ms Abbas' evidence as to the period of time when the plaintiff was off work to be the most accurate recording. It, however, results in a finding that sometime around late January 2020, the plaintiff returned to work and was working around 75 hours a fortnight. That is in stark contrast to the plaintiff's evidence that she returned to work after about six months for only about 9 to 12 hours per week.
8. It was open to the plaintiff to have Ms Abbas give evidence that the payslips, which the defendant relied on, incorrectly recorded the plaintiff's hours and pay. However, no such evidence was produced from Ms Abbas, and the plaintiff could not explain why the payslips, that I have referred to from late January to April 2020, recorded her as working some 75 hours per fortnight.
9. This unexplained inconsistency in the evidence is significant. It suggests that there is a remarkable capacity for work that the plaintiff had some three to four months after the accident.
10. However, the payslips record that from June 2020 the plaintiff's hours dropped back to some six hours per week. Why this was the case was largely unexplained.
11. Ms Abbas' affidavit deposes that when the plaintiff did return to work, she only worked for a couple of hours a day, a couple of days a week.[40] However, this is contradicted by the payslips and, as I have said, there was no explanation proffered for the recordings in those payslips of 75 hours work per fortnight (from late January to April 2020) and commensurate earnings.
12. In that circumstance, I consider the best record to be the business records for the reasons I have set out above. As such, I consider the evidence of the plaintiff on this point to be wholly unreliable. It is unreliable both as to her capacity to work and her period of time off work before she returned.
13. Turning now to the other areas in which the defendant submitted disclosed inconsistency in the plaintiff's evidence. The defendant sought to contrast a number of the impairment consequences the plaintiff complained of with video footage which was shown in Court. At the outset, I indicate that the defendant admitted there was some 212 hours of video surveillance taken.[41] Of that, some 106 minutes only was played in Court. It can be seen that less than one per cent of the surveillance resulted in footage which was shown in Court. It could fairly be said that this was a very small snapshot of the plaintiff's activities over the period of surveillance. Bearing that in mind, I now turn to the various impairment consequences which the defendant submitted demonstrated inconsistency.

The claimed impairment consequences: are they inconsistent with other evidence?

Video surveillance showed the plaintiff working in the first week of March 2021 on consecutive days. It will be recalled the plaintiff's evidence was she could only work three or four days a week, of three or four hours at a time, up to a maximum of twelve hours. The defendant submitted that the video showed the plaintiff was able to work five consecutive days and well in excess of the 12 hours. The plaintiff accepted she had not told any doctor that she could work consecutive days. The video, on my analysis, shows the plaintiff working for roughly three or four hours every day over those five consecutive days. By itself, this leads to something like fifteen to twenty hours work. However, this was only one week and the plaintiff made the point that sometimes while her car was at work she might have been doing other things, such as shopping at a nearby Turkish grocer. That was a reasonable explanation for the plaintiff's car to be at work but for her not to be working. I consider this to demonstrate a minor inconsistency in the plaintiff's evidence as to the hours she worked on that week.

(ii) The plaintiff's evidence about the pain caused by turning her neck.

The plaintiff deposed in her affidavit that turning her neck caused her to experience a burning sensation in her neck.[42] The defendant said that was contradicted by numerous video shots of her in her car driving and moving her neck freely and also sitting on a crate at the front of work smoking, where she is talking to people on either side of her, or who are slightly above her. As I have indicated, the video surveillance was of very brief moment in the overall scheme of the surveillance. I do record, however, that in none of the video evidence, I saw, did the plaintiff display any sign of neck restriction in movement, or of pain, after immediately having to move her neck. Rather, in the very brief moments of video that were shown, I record that I saw her move her neck in an unrestricted manner. Given the limited video that was shown, I do not consider any conclusive finding can be drawn about the unreliability of the plaintiff on this particular point.

(iii) Did the plaintiff require domestic help as she deposed after the accident.

In her first affidavit, the plaintiff deposed to needing "a cleaner now to help out with housework",[43] and also "I now have a gardener that comes every 6 weeks".[44] The impression gained from those statements in the affidavit was that, after the motor vehicle accident, the plaintiff required the services of a cleaner and a gardener. The impression was that such services had not been provided prior to the motor vehicle accident. In her second affidavit sworn in February 2025, she deposed that she had, in fact, used a cleaner before the transport accident, but increased the cleaner's hours from four to six as a result of the transport accident.[45] In relation to the gardener, she simply said that she continues to have a gardener come to assist.[46]

In cross-examination, it was put to her that her affidavits were misleading as to the cleaner; particularly the first affidavit, which failed to disclose that she had used a cleaner before the motor vehicle accident. I consider there is some merit in that assertion given the clear wording of the first affidavit and the undeniable impression it was seeking to leave - of a cleaner only being required after the motor vehicle accident. This is clearly not correct.

This is furthered because, in respect of the gardener, even the second affidavit did not disclose that, prior to the motor vehicle accident, there had in fact been a gardener who she had employed. When this was put to her in cross-examination she conceded it. It appears she had made some reference to needing a gardener prior to the motor vehicle accident to some doctors, which is how the defendant had come to understand she had a gardener prior to the motor vehicle accident. However, overall, on the topic of whether her evidence was inconsistent or misleading, I would accept the defendant's submission. In respect of the cleaner, the first affidavit was certainly not the entirety of the situation. It was expressed in a way which seemed to link the need for a cleaner to the motor vehicle accident. It was not. Secondly, the evidence in the first and second affidavits completely hid the fact that a gardener was required even prior to the motor vehicle accident. The expression in the first affidavit of "now" needing a gardener clearly was intended to convey the impression that, by reason of the motor vehicle accident, a gardener was needed for the first time. This was obviously not the case. I would accept the defendant's submission on this point overall and I consider her evidence as to requiring a cleaner and gardener by reason of the motor vehicle accident unreliable, inconsistent and exaggerated.

(iv) The failure to disclose holidays to Turkiye and Thailand.

In her first affidavit, the plaintiff had referred to her social life being restricted and preferring to stay at home after the motor vehicle accident.[47] In her second affidavit, sworn in February 2025, she simply stated that, since the transport accident, she was less social. She stated that every time she went out in public, she would get a very sharp pain in her stomach and that she did not do as much with her children as she wanted to.[48] She specifically noted that she took her thirteen-year-old daughter for breakfast or took her shopping.

It was not until the third affidavit sworn on 14 April 2025, the first day of the hearing, that the plaintiff disclosed she had in fact been on overseas holidays to Turkiye in August 2024 with all three children and then again to Thailand between 7 and 13 January 2025 with her partner and her daughter.[49]

In circumstances where the plaintiff had very deliberately mentioned the restriction on her social activities as a result of the motor vehicle accident, the failure to mention her overseas trips is difficult to understand. It is more difficult to understand for two specific reasons. First, her second affidavit was sworn only five weeks after visiting Thailand with her daughter. It was an event which was fresh in her mind. It was a trip she took with her partner and it seems to be the first overseas trip that she took with him. This indicates a level of ability to socialise which was not previously disclosed. Second, she specifically mentioned that her daughter went with her to Thailand, yet in her second affidavit she had only ever deposed to taking her daughter shopping or for breakfast as their social outings. In that setting, why taking her daughter to Thailand was not also a social outing worthy of mention is inexplicable.

I consider that the plaintiff's evidence as to her ability to travel overseas and socialise was wholly unreliable.

1. There were broad assertions made by the defendant that the video showed the plaintiff shopping and ascending stairs and driving in ways which were physically unrestricted. Given the small amount of video shown, I do not think much can be read into the video itself and the inconsistencies it is said to show. I do not consider the alleged inconsistencies which are supposedly shown in the video footage as substantial as those I have outlined above.

1. To conclude, then, as to the plaintiff's reliability, I have set out my specific findings above. Overall, I consider these of such significance that I find the plaintiff was a wholly unreliable witness in respect of the impairment consequences that she deposed to. I consider that the plaintiff's unreliability on the specific matters outlined above is substantial. The unreliability touches on her (i) reasons for taking time off work, (ii) the period of time she was off work, (iii) her driving capacity after the accident, (iv) her work capacity, (v) her ability to clean, garden and perform domestic tasks, and (vi) her ability to socialise. These matters are so broad ranging and substantial that, after long consideration, I find that I can have no confidence in accepting the plaintiff's evidence on what are the true impairment consequences that she suffers from on any topic.
2. Of course this does not alleviate the burden on the court to assess all the evidence in the case.[50] I turn now to consider the medical evidence in the case.

1. Primarily, the plaintiff relied on the treating material and medico legal reporting of Associate Professor ("AP") Richard Bittar, neurosurgeon, and Dr Shankar Ramaswamy, a pain specialist.[51]
2. The treating material from Dr Fernando diagnoses a chronic pain syndrome from the spinal injury.[52] He imposes restrictions on her job tasks in terms of lifting, standing and sitting. He opines she could perform up to 16 hours work per week.[53] Dr Woodgate last saw her in mid-2022. His report is now dated and of limited use.[54] Similarly the last physiotherapy report of Mr Egan is from late 2023 and notes treatment last occurred in mid-2022.[55]
3. To the extent the medico legal practitioners diagnosed a musculoligamentous strain in the spine, I would accept that evidence. I accept that an injury of that nature was caused in the motor vehicle accident. I further accept the evidence there is an ongoing spinal injury. This is supported by the treating doctor's material, wherein she is prescribed a range of medications for her physical condition.[56] This has been the situation for a considerable period of time.
4. However, while it can be accepted that she has an injury and the requirement for some medication, I am unable to determine exactly what impairment consequences result from that injury. This is because her evidence, which I consider to be so unreliable, that it does not depict in any way the true impairment consequences that she suffers from.
5. It follows that I simply cannot accept the opinions of AP Bittar or Dr Ramaswamy as to the restrictions that she faces. I accept that they have imposed those restrictions on the basis of history, the medical records and their own clinical examination and opinion after viewing the video. However, that review of material must be assessed by the Court in context with the plaintiff's affidavits and the substantial inconsistencies that I have identified above.
6. Assessing all that material, I do not accept the restrictions as set out by AP Bittar. For example, he has taken no history of her recent overseas travel (both trips) yet considers she has moderately less social and recreational activities. Whereas these trips suggest a capacity to holiday normally. Similarly, he considers that her work status (5 hours per week) has not changed in the 2024/2025 year. Yet he has no history, as I have found, of a return to work of 37 hours per week in early 2020. Furthermore he does not have the history of her purchasing the business back in 2024 from Ms Abbas so that her 18 year old son can run it. While she suggests that he does all the work and she is as limited as before, it is quite clear that having invested some $800,000 in that purchase, she is playing a considerable role in guiding her teenage son - who has no experience in the field - in the business. This suggests a capacity unappreciated by AP Bittar, who recorded that as of March 2025, she was working only 5 hours per week.[57]
7. As for Dr Ramaswamy he has examined her only once in the 5 years since her motor vehicle accident. This limits his ability to accurately assess her condition I consider. He has no history of the return to work in early 2020 which indicates a capacity for work well in excess of that he found. He also has no history of the travel or recent purchase of the business as I have set out above. This considerably undermines my acceptance of his evidence.
8. I accept, as correct, the plaintiff's submissions that the defendant's reliance on medico legal practitioners, Dr Graeme Doig and Dr Anthony Menz, is misplaced. This is for the reasons which plaintiff's counsel identified in his closing.[58] Namely, that they have incorrectly appreciated the restrictions she presented with at their first appointment and which they then subsequently identified as contradicted by the video. This revealed them to be improperly taking matters into account and for this reason their opinions were flawed.
9. Despite this however, it is the plaintiff's case to put and prove. As I have set out, her evidence as to her impairment consequences cannot be relied upon and, after an overall synthesis of matters, I cannot accept the restrictions imposed upon her by AP Bittar and Dr Ramaswamy.
10. In that circumstance, I deny the plaintiff's application pursuant to paragraph (a).

1. Turning to the psychiatric injury claim brought under paragraph (c). This was not really pressed by the plaintiff but also not formally abandoned. I deny this application for two reasons. First, the medical evidence called in aid from the treating practitioners was that of Ms Metcalf dated from 2021 and was of no use. Dr Fernando diagnosed an adjustment disorder with anxiety and depression. [59] This was the same as Dr Duraisamy and Dr Tipirneni.[60] And Dr White who suggests there maybe features of a PTSD.[61] This is largely consistent with the medico legal reporting of Dr Radakrishna, who in addition diagnoses a PTSD.[62] I accept that. However, the impairment consequences of that diagnoses does not rise to the level that could be considered "severe". This is because the plaintiff has returned to work (though her exact hours of work are unable to be determined), and she has worked consistently and productively for years. She has just made a substantial business investment to buy back the business for her son to operate. This indicates that she is continuing to pursue thoughtful complex business decisions despite her psychiatric state. She continues to maintain her investment portfolio of residential NDIS homes. She can holiday normally and frequently. She has a partner. She can do all the activities of daily living. She has not had ongoing psychiatric treatment for some time but only recently re-engaged with Dr Tirpirneni. She requires ongoing medication and has for some years. Balancing these matters, while it could be said that her psychiatric condition is significant, I cannot find that it constitutes a finding of being a "severe long term mental or severe long term behavioural disturbance."
2. For these reasons, I deny the plaintiff's application.

1. A number of further documents were filed by both parties and tendered in Court during the hearing and subsequent to the Court rising. For the sake of accurately recording these materials, they are outlined below in the exhibit list and each has been given an Exhibit number.

Comparison with earlier examination and conclusions reached upon receipt of surveillance

Affidavits sworn by the plaintiff dated 26/09/2023; 20/2/2025 and 14/4/2025

64-76, 75-82, 83-86, 87-88, 89-107, 108-157 , 186-196,

Defendant's photographs of the rear of white Mercedes, photographs 1, 2 and 3

Photo showing the front of grey sedan with P plate, licence plate BCC173

First tranche of video covering: 4/1/2021, 15/1/2021, 1/2/2021, 2/2/2021, 4/2/2021, 8/2/2021, 9/2/2021, 1/3/2021, 2/3/2021, 3/3/2021, 4/3/2021, 5/3/2021

Video of dates: 14/10/2021, 15/10/2024, 16/10/2024 and 17/10/2024

Defendant's submissions to the Court re: issue concerning TAC payments

Pages 6-9 of TAC printout re: plaintiff's loss of earnings payments

[1] Plaintiff's Court Book ("PCB") 275 at paragraph [13]; the plaintiff agrees at Transcript ("T") 92, Line ("L")

[4] PCB 12 at paragraph [22]; T34, L28 - T45, L4

[16] PCB 43; PCB 44, CT scan showed no cervical spine fracture; PCB 46, MRI does not show fracture of the cervical spine

[17] PCB 42, "No thoracic spine fracture identified"

[18] Defendant's Court Book ("DCB") 14, Dr Elder

[23] In May 2023 the treating doctor reported when requesting radiology that there had been previous suspicion of fracture PCB 51, see also PCB 87 in her physiotherapists' report 6 December 2023 "...investigations show multiple stable vertebral fractures"

[24] Radiology PCB 47, 51-52; Mr Woodgate PCB 93; AP Bittar PCB 186

[43] PCB 15 at paragraph [52] emphasis added

[44] PCB 16 at paragraph [55] emphasis added

[50] Cakir v Arnott's Biscuits Pty Ltd [2007] VSCA 104

[51] I made a ruling at the commencement of the hearing limiting the medical evidence of experts in line with the Common Law Division Practice Note. Brief reasons were given on transcript.

[54] PCB 97 - in his concluding comment he admits he cannot give an answer in respect of questions regarding capacity or prognosis.

[55] PCB 87 - his answer to various questions indicates he cannot give an up to date prognosis or capacities.

[58] See the aide memoire handed to the Court by Plaintiff's Counsel which neatly identifies these matters.