Doyle v Victorian WorkCover Authority [2025] VCC 1093

1. At the hearing, Mr Conor O'Sullivan and Mr Campbell Woollacott appeared for Mr Doyle. Mr Robert Paoletti appeared for the defendant.
2. Mr Doyle gave oral evidence and was cross-examined. He was the only witness called.
3. Mr Doyle relied upon three affidavits affirmed by him on 27 February 2024, 7 February 2025 and 13 May 2025.[4] He relied upon an affidavit of his half-sister, Jorja Levi, affirmed on 10 February 2025.[5]
4. Mr Doyle tendered radiology reports,[6] letters, management plans and reports from treating practitioners,[7] medico-legal reports,[8] and his Injury Claim Form.[9]
5. Mr Doyle provided the Court with an aide-memoire setting out a summary of his gross earnings.
6. The defendant tendered video footage of Mr Doyle,[10] reports and letters from the plaintiff's treating psychiatrist and General Practitioner ("GP"),[11] medico-legal reports,[12] and extracts of clinical records.[13]

1. Mr Doyle has been diagnosed with a range of unrelated health conditions, including anxiety, depression and diabetes. He was diagnosed with chronic pancreatitis at 21 years old.
2. The unrelated conditions are discussed in further detail later in this judgment.

1. At the commencement of the hearing, the defendant said there were three issues in this application:
   • it accepted that Mr Doyle suffered a compensable injury on 23 October 2017 but maintained the injury was a minor and transient condition and that, at the time of the hearing, Mr Doyle was no longer suffering from a compensable lumbar spine condition;
   • if there was an ongoing compensable condition, then the consequences could not be described as being "more than significant or marked" and as being "at least very considerable" when considered in the range of impairments;
   • Mr Doyle's loss of earnings did not satisfy the requisite test pursuant to the Act.
2. In closing submissions, the defendant said that Mr Doyle's credit and reliability were in dispute.

1. For the reasons that follow, I find that in relation to the pecuniary loss claim, the impairment consequences of Mr Doyle's injury are "serious" and satisfy the narrative test and the tests in s325(2)(e)(i) and (ii) of the Act.
2. Therefore, as Mr Doyle has established an entitlement to commence a proceeding for loss of earning capacity damages, as a consequence, he also has leave to commence proceedings for pain and suffering damages.[14]

1. Mr Doyle tendered the following radiology:
   • An MRI scan of the lumbar spine conducted on 24 November 2017 which was reported to reveal moderately severe L4-5 disc degeneration, annular fissuring and broad based disc bulging with no neural compression.[15]
   • A CT scan of the lumbar spine conducted on 18 March 2022 which was reported to reveal bilateral L5 spondylosis and disc degeneration at L4-5 with posterior disc bulge, mildly indenting the theca.[16]

1. Mr Doyle attended physiotherapy in early 2018. He remains under the care of Dr Wong, GP, at the Boronia Mall Clinic. He consults with Dr Wong mostly via telehealth appointments. He is not seeing any other practitioners.
2. Mr Doyle had been prescribed various medications including Lyrica, Panadeine Forte, Tramadol and Suboxone.[17]

1. In cross-examination, the following matters were explored:

• He had given different histories to doctors regarding the events of 23 October 2017 and the further incident where he slipped and jarred his back.[18]
  • Mr Doyle maintained any errors within the notes were due to inaccurate recording by the relevant clinician, as opposed to inaccurate reporting by him.
  • Mr Doyle was shown a clinical note dated 11 August 2017 from the Boronia Mall Clinic in which a complaint of back pain was recorded. The entry read as follows:

"Friday August 11 2017 11:14:07 > > Dr. Nila Parghi

• At that attendance, the clinical examination recorded tenderness and restriction in Mr Doyle's back. No details were provided as to the location of the tenderness or the nature of the restrictions. The reason for the contact was recorded as "Pancreatitis". Prescriptions for Panadeine Forte, Diazepam and Serepax were printed.
• Mr Doyle confirmed he had been shown this clinical note by his solicitors and had no recollection of any back pain prior to the incident in 2017, as he stated in his third affidavit.[20]
• He was cross-examined at length regarding his pre-existing pancreatitis. He readily admitted that he suffered from pancreatitis dating back to 2012 and that the condition was often brought on by alcohol abuse. He agreed that his pancreatitis could cause severe abdominal pain which sometimes extended into his back.[21] He accepted that his pancreatic pain was sometimes so severe that he had to take Endone.[22]
• He denied that his back pain from 2017 onwards was unrelated to the work incident and was instead caused by his chronic pancreatitis.[23] He accepted the abdominal pain associated with his pancreatitis sometimes radiated to his back but said the pain was in a different location. He said that the pain related to the pancreatitis was located in the top right hand area of his back, whilst the pain resulting from the work incident was located in his lower back.[24]
• Mr Doyle accepted he was drinking alcohol to excess throughout 2017, sometimes as many as 30 standard drinks in a night.
• It was put to Mr Doyle that in August 2017 he was attending several medical clinics to obtain opioid medication.[25] Mr Doyle said he could not recall this.[26]
• Mr Doyle confirmed he was admitted to hospital on various occasions in 2017, 2018, 2019 and 2020 complaining of severe abdominal/epigastric pain, amongst other issues, and that such episodes were often precipitated by heavy drinking, resulting in a flare-up of his pancreatitis.
• He accepted that from approximately 2011 up until 2020, he had been prescribed opioid medication to manage his chronic pancreatitis.[27]
• Mr Doyle denied that he was unemployed from October 2017 until late 2020 due to the symptoms of his pancreatitis and his drug and alcohol issues, as opposed to any work-related back condition.
• Mr Doyle agreed that he had not attended upon any surgeon (with the exception of medico-legal examiners) to discuss potential treatment options for his back. He denied this was due to a lack of symptoms. He said he did not want surgery on his back.
• Mr Doyle refuted the suggestion that his lower back condition did not prevent him from returning to pre-injury work with a scaffolding company.

1. In re-examination, Mr Doyle said:
   • He no longer experienced abdominal/epigastric pain. He said he last experienced such pain in approximately January 2020, around the time he ceased drinking alcohol and taking drugs.[28] He had not received any treatment for the pancreatic condition since 2020.
   • His abdominal pain had not stopped him from working with the employer and maintained the reason he could not work currently was due to his back pain.
   • He said that he had been advised there was a 40 per cent chance of a good outcome and a 60 per cent chance of a bad outcome from any surgery.[29] He also said Dr Wong had not recommended any treatment options, besides medication, for his back condition.
2. Finally, during re-examination in response to a question from the Court, Mr Doyle confirmed that he was currently in receipt of a Disability Support Pension, primarily for his psychiatric state.[30]

1. Mr Doyle tendered a Management Plan prepared by Dr Jayaraman dated 12 December 2017 and a letter from Dr Jayaraman addressed to Yarra Ranges Health Pain Clinic dated 18 December 2017.[31]
2. In the Management Plan, Dr Jayaraman recorded Mr Doyle's amphetamine and alcohol addiction issues and diabetes. The plan noted that Mr Doyle has ceased taking insulin. Dr Jayaraman recommended he restart such mediation.
3. The Management Plan focussed on the work incident and subsequent lower back pain. Dr Jayaraman recorded the pain in the lumbar area which was described as a "tight ache" that could radiate above the spine.[32]
4. Dr Jayaraman confirmed Mr Doyle was managing the pain with warm showers, heat packs, Oxycontin, Endone and stretching.
5. In the letter addressed to Yarra Ranges Health Pain Clinic, Dr Jayaraman referred to the history of amphetamine and alcohol addiction issues and diabetes, as well as hypertension and pancreatitis. The letter otherwise referred to Mr Doyle's work-related back pain and noted he did not get pain relief from standard opioid medication.[33]

1. Mr Doyle tendered a report of Dr Wong dated 4 September 2024.[34] Dr Wong diagnosed Mr Doyle with moderately severe disc degeneration, annular fissuring, broad based disc bulging, mild canal and exit foramina compromise which was consistent with the MRI report dated 24 November 2017.
2. In terms of treatment, Dr Wong said he had referred Mr Doyle to surgeons on 13 March 2018 and on 9 July 3018. He was unsure what came of those referrals but commented it was likely Mr Doyle did not attend the surgeons. He also commented that Mr Doyle's treatment may have been impacted by his incarceration in 2018.
3. Dr Wong was unsure what future treatment was required. Options included specialist review, consideration of surgery such as fusion at L4-5, or to continue with conservative treatment. Dr Wong opined that if Mr Doyle was considered to be a candidate for a fusion, he may have less pain and be able to live better.[35]
4. In terms of employment, Dr Wong opined that Mr Doyle was unable to work due to his severe back pain. He required further assessment to ascertain whether he could undertake alternative, lighter work.
5. Dr Wong said that Mr Doyle's social life, his recreational pursuits and ability to carry out household chores were affected by his back pain.

1. Mr Doyle tendered a report of Dr Akil dated 2 September 2024. Dr Akil examined Mr Doyle on same date.[36]
2. Dr Akil recorded a history of constant significant lower back pain affecting both sides of the plaintiff's lumbosacral region, radiating towards the left buttock and down into the hamstring region to the left knee, as well as frequent paraesthesia in both feet.
3. Mr Doyle presented with a marked antalgic gait and severe restriction in the range of motion of his lumbar spine, particularly on forward flexion but also upon extension. Dr Akil also observed restrictions on the straight leg raise and absent reflexes of the deep tendons.
4. Dr Akil diagnosed an aggravation of lumbar spondylosis. Dr Akil opined that the physical nature of Mr Doyle's work and, in particular, the work incident were significant contributing factors to the development of the back symptoms.
5. Dr Akil considered the prognosis was guarded. He considered that Mr Doyle was not capable of returning to his role as a scaffolder. Dr Akil said it was difficult to see Mr Doyle reliably returning to any kind of work in the future, noting that all of his prior work history was in physically demanding jobs.
6. In terms of further treatment, Dr Akil recommended continued conservative treatment, primarily physiotherapy. He did not recommend surgical intervention.

1. Mr Doyle tendered a report of Dr Awad dated 1 October 2024. Dr Awad examined Mr Doyle on same date.[37]
2. Dr Awad took a consistent history regarding the work incident and treatment thereafter.
3. Dr Awad confirmed Mr Doyle struggled with reading and writing and had non-existent IT skills. Dr Awad commented that Mr Doyle's speech was slow and his ability to understand questions and answer them coherently was below average. Dr Awad considered it was likely Mr Doyle had an undiagnosed learning difficulty.
4. Dr Awad also observed that Mr Doyle had an antalgic gait and reduced flexion and extension of his lumbar spine. He was able to toe and heel stand. Dr Awad considered Mr Doyle had suffered an aggravation of lumbar spondylosis.
5. In terms of capacity, Dr Awad considered Mr Doyle had no capacity for pre-injury duties and that he was permanently medically restricted from any manual roles.
6. Taking into account Mr Doyle's age, injury, mental health and underlying learning disability, Dr Awad considered Mr Doyle had no capacity for any employment and no capacity to retrain.
7. Dr Awad said that prior to the injury, Mr Doyle had relied on his ability to work in manual roles which helped him negate his learning difficulties. He was precluded from continuing in such positions.

Dr Graeme Doig, General Orthopaedics and Trauma Surgeon

1. Mr Doyle tendered a report of Dr Doig dated 14 November 2023. Dr Doig examined Mr Doyle on 20 October 2023, for the purposes of an impairment benefit assessment.[38]
2. Dr Doig took a consistent history regarding the work incident and treatment thereafter. Dr Doig recorded complaints of constant lower-back pain with radiation down the back of the left thigh.
3. Upon clinical examination, he observed tenderness in the lumbosacral region. He found Mr Doyle could only forward flex to his upper shins, with reduced lateral flexion to the left and 20 degrees of spinal extension, exhibiting guarding and dysmetria. Dr Doig recorded straight leg raising was normal and Mr Doyle could heel and toe walk satisfactorily.
4. Dr Doig diagnosed Mr Doyle with a soft-tissue injury to the lower back with damage to the L4-5 intervertebral disc, with no evidence of radiculopathy. Dr Doig considered the prognosis was poor for a return to physically demanding employment.

Associate Professor Love, Consultant Orthopaedic Surgeon

1. Mr Doyle tendered two reports of Associate Professor Love dated 25 June 2024 and 10 February 2025. The first report related to an examination on 13 June 2024.[39] The second report was a supplementary report which was prepared without a re-examination of the plaintiff.[40]
2. Associate Professor Love took a consistent history regarding the work incident and post-injury treatment.
3. Mr Doyle complained of persistent low back pain, radiating through the left leg with no altered sensation. Upon clinical examination, Associate Professor Love observed tenderness in the midline of the lumbar spine and very restricted range of movement with a negligible degree of extension and very limited flexion. Associate Professor Love also observed straight leg raising ceased at 60 degrees of elevation on the right and 20 degrees of elevation on the left.
4. Associate Professor Love diagnosed severe lumbar disc pathology but commented it would be beneficial to have a more up to date MRI of the lumbar spine to review. It was his opinion that Mr Doyle's condition had a significant psychological component.
5. Associate Professor Love accepted that there was likely lumbar disc pathology existing in the spine prior to the onset of symptoms in 2017. As such, Associate Professor Love accepted Mr Doyle had aggravated a L4-5 disc condition as a result of the work incident and that this aggravation persisted as at the date of his examination.
6. Associate Professor Love considered that the prognosis was poor. Associate Professor Love opined that Mr Doyle had no capacity to return to any full-time employment . He considered that an in-patient rehabilitation program may be appropriate to gain control of his symptoms and put in place retraining for suitable employment.
7. Associate Professor Love opined that surgery could be considered. However, he said that given Mr Doyle's long history of symptoms and associated psychological factors, there would be significant hesitancy on the part of any surgeon to perform the operation due to the unpredictability of outcomes.
8. In his supplementary report, Associate Professor Love was asked to review extracts of clinical records from various clinics, as well as reports of Dr Prasanna (treating psychiatrist) dated 11 October 2016 and Dr Haynes dated 5 July 2024.[41]
9. After reviewing the additional documents, Associate Professor Love said he did not change his opinions.[42]

1. The defendant tendered a letter from Dr Prassana dated 11 October 2016, addressed to Mr Doyle's GP, Dr Singh. The letter detailed Mr Doyle's dysfunctional and difficult upbringing, including the death of his father in a transport accident in 2000, the death of his half-brother in a transport accident in 2001, the death of his mother from a drug overdose in June 2016 and pervasive drug and alcohol dependency issues within Mr Doyle's family, including his father, mother, two younger brothers and Mr Doyle himself.
2. Dr Prassana confirmed the diagnosis of pancreatitis and liver damage due to alcohol abuse and diabetes.
3. Dr Prassana recorded that after spending 78 days in jail in 2015, Mr Doyle attended a rehabilitation clinic and had been clean since January 2016.
4. Mr Doyle reported that he had felt anxious and depressed from a very young age and that this had worsened since leaving the rehabilitation clinic in 2016. Mr Doyle reported ongoing grief about the death of his mother.
5. Mr Doyle told Dr Prassana that he felt more anxious than depressed. He complained of disrupted sleep, despite being prescribed Valium and Seroquel. He had been experiencing panic attacks almost daily and recent agoraphobia.
6. Dr Prassana noted that Mr Doyle had been prescribed Naltrexone whilst in the rehabilitation clinic. After a trial of Effexor, which caused sleep issues, he changed to mirtazapine. He was not seeing a psychologist.
7. Dr Prassana considered that Mr Doyle was suffering from a panic disorder and an adjustment disorder, as well as alcohol and amphetamine dependence (currently abstinent).
8. Dr Prassana made various recommendations regarding medication, including cessation of Diazepam and any other benzodiazepines, and also recommended Mr Doyle attend a psychologist for anxiety management and grief therapy.

1. The defendant tendered a letter from Dr Singh, at the Main Street Medical Centre, addressed to the Inpatient Detox Unit at the Maroondah Hospital dated 6 September 2017.[43]
2. The letter confirmed that Mr Doyle had been relying on Valium to avoid drinking alcohol, had chronic pancreatitis for which he has been taking Endone and had recently commenced taking a high dose of Oxycontin.
3. Dr Singh said that given Mr Doyle's previous addictive history, Oxycontin was not the most appropriate treatment. Dr Singh refused to prescribe such medication and commenced prescribing a reducing schedule for Valium.
4. Dr Singh noted that Mr Doyle had previously refused to attend hospital. Dr Singh considered that Mr Doyle required admission to a hospital detox unit.

1. The defendant tendered extracts of the clinical records from Main Street Medical Centre covering the period 6 April 2017 to 30 March 2018.[44]
2. The records confirmed that prior to the workplace injury, Mr Doyle struggled with drug and alcohol abuse, pancreatitis and mental health concerns.

1. The defendant tendered extracts of the clinical records from Eastern Health covering the period 5 March 2015 to 9 May 2018.[45]
2. The records confirmed numerous hospital admissions due to pancreatitis, heavy drinking and psychiatric issues both before and after the work injury.

1. The defendant tendered extracts of the clinical records from Monash Health covering the period 29 May 2018 to 5 February 2020.[46]
2. The records confirmed numerous attendances at the Dandenong Hospital between May 2018 and November 2020 due to epigastric pain, pancreatitis, heavy drinking and psychiatric issues.
3. The records are somewhat confusing. For example on 27 December 2019, it was recorded that "Mother's patient present...". Other material suggested that Mr Doyle's mother had died in June 2016.

1. The defendant tendered extracts of the clinical records from Boronia Mall Clinic covering the period 23 December 2016 to 6 June 2023.[47]
2. The notes included the attendance on 11 August 2017 which has been previously discussed.
3. The notes recorded over 60 complaints of low back pain during the period 26 October 2017 to 6 June 2023.

Dr Philip Mutton, Consultant Occupational Physician

1. The defendant tendered a report from Dr Mutton dated 12 April 2018. Dr Mutton examined Mr Doyle on the same day. The report appears to have been commissioned by the WorkCover agent to review statutory benefits.[48]
2. Dr Mutton recorded that Mr Doyle left school aged 16 and worked in various roles, initially as a boat detailer for 12 months, before commencing but not completing a cabinet maker apprenticeship. Dr Mutton recorded that prior to commencing with the employer, Mr Doyle worked in various jobs including as a truck jockey, a labourer, in a delicatessen for 18 months, and an asphalter.
3. Dr Mutton recorded that Mr Doyle was active in martial arts up until June 2017.
4. Dr Mutton took a consistent history from Mr Doyle regarding the circumstances of the workplace accident on 23 October 2017, as well as a further incident where Mr Doyle slipped off some scaffolding and jarred his back.
5. In terms of his general health, Dr Mutton recorded Mr Doyle had diabetes which was monitored by a specialist but was relatively well-controlled. He confirmed Mr Doyle had undergone psychiatric/psychological assessment and treatment previously.
6. In terms of treatment for the compensable injury, Mr Doyle had commenced physiotherapy in January 2018 and had dry needling and massage - none of which helped. Mr Doyle reported he intended to start hydrotherapy.
7. Dr Mutton said Mr Doyle was pleasant and cooperative and did not appear to be in pain. Upon clinical examination, there was no tenderness to palpation of the spinus processes or paravertebral soft tissues and no muscle spasm. Mr Doyle could flex to the knees. He displayed full extension and no evidence of radiculopathy. Mr Doyle was able to stand on tiptoes, could squat and his reflexes were said to be brisk and symmetrical.
8. Dr Mutton concluded Mr Doyle was suffering from chronic low back pain and that he had likely suffered an aggravated degenerative disc, consistent with the findings of the MRI of 24 November 2017. He considered the condition was not resolved and that Mr Doyle's work with the employer continued to materially contribute to the condition.
9. Dr Mutton commented the timeframe for recovery was variable. He found it was likely Mr Doyle had capacity to return to pre-injury hours at the time of the examination but not pre-injury duties, due to the physically demanding nature of the role.
10. Dr Mutton considered Mr Doyle was restricted in new employment. The restrictions included sitting and standing interchangeably, with lifting limited to no more than 5 kilograms. He recommended Mr Doyle avoid low back bending.
11. In terms of treatment, he considered Mr Doyle needed better rehabilitation. A more intensive physical restoration program was indicated for three months. There were no contraindications to Mr Doyle undertaking a self-managed exercise program.

Dr Michael Lucas, Consultant Occupational Physician

1. The defendant tendered a report from Dr Lucas dated 15 January 2019.[49] Dr Lucas examined Mr Doyle on 10 January 2019.
2. Dr Lucas recorded a consistent history regarding the work incident on 23 October 2017. Dr Lucas recorded that upon returning to work after the work incident, Mr Doyle then fell from scaffolding and further injured his back.
3. Dr Lucas confirmed Mr Doyle had undergone physiotherapy on four to five occasions, participated in self-managed hydrotherapy and continued to see his GP to receive certificates and scripts for analgesics.
4. During the examination, Mr Doyle complained of "lower back discomfort awareness" which he rated as "6/10". He reported increased discomfort after prolonged sitting, lying down, walking and bending. Mr Doyle reported his condition had remained unchanged since the onset of pain.
5. Mr Doyle outlined a history of depression, poorly controlled asthma and poorly controlled diabetes. Mr Doyle confirmed his asthma and diabetes would limit his ability to return to employment. Mr Doyle also confirmed he had had recent contact with the legal system and was reporting to police periodically. Dr Lucas commented this may also have an impact upon his return to work.
6. At the time of the examination, Mr Doyle was taking Methadone, Tramal and Lyrica. Dr Lucas noted he had been taking Seroquel for the past two years and mirtazapine for the past six years to assist with depression.
7. Mr Doyle advised he no longer cycled, attended the gym or cleaned his house. He said he intended on returning to labouring type work but was aware that there were a number of barriers which prevented him from doing so, including his asthma, diabetes and police issues.
8. Upon clinical examination, Dr Lucas recorded general discomfort over the L4-5, L5-S1 region generally. Mr Doyle was able to heel raise, toe raise and squat fully. He was able to forward flex to his knees, and Dr Lucas recorded that lateral flexion, extension and rotation were in the normal range.
9. Dr Lucas reviewed the MRI of 24 November 2017 and considered the findings were "reassuring" and reasonably considered as within normal age expectations.[50]
10. Dr Lucas concluded Mr Doyle presented with a history consistent with mechanical low back pain. He considered the work incident on 23 October 2017 and subsequent fall from scaffolding were reasonably likely to have caused an exacerbation of an underlying condition. However, it was his opinion that any work incident contribution to his symptoms had resolved. Dr Lucas opined that Mr Doyle's current symptoms were attributable to mechanical and postural factors in association with age-related degenerative spine disease.
11. Dr Lucas considered there were no contraindications to him returning to pre-injury duties and hours, noting that Mr Doyle had reported there were significant non-work related issues limiting his current capacity to return to work.
12. Despite saying there were no contraindications, Dr Lucas considered Mr Doyle should maintain appropriate back care awareness and should limit prolonged sitting and standing and avoid unfamiliar loading tasks, as well as ensure awareness of appropriate manual handling limitations and ensure he retained a degree of cardiovascular fitness.
13. Dr Lucas did not consider Mr Doyle required any additional treatment or intervention and suggested his current medication (specifically, Methadone) would appear to be for reasons beyond back discomfort.

Dr Philip Haynes, Consultant Occupational Physician

1. The defendant tendered two reports of Dr Haynes dated 5 July 2024 and 12 March 2025. The first report related to an examination on 27 June 2024.[51] Dr Haynes provided a supplementary report dated 12 March 2025.[52] He did not re-examine Mr Doyle.
2. In his first report, Dr Haynes took a consistent history from Mr Doyle regarding his difficult upbringing, prior substance abuse issues, previous incarceration and the work incident on 23 October 2017.
3. Dr Haynes confirmed Mr Doyle had been diagnosed with significant psychiatric conditions and was in receipt of the Disability Support Pension. Dr Haynes recorded Mr Doyle received assistance from a National Disability Insurance Scheme ("NDIS") carer who attended the home he shared with his sister three days a week, for a total of eight hours.
4. During the examination, Mr Doyle complained of pain through the lumbar region generally, radiating down the posterior aspect of the left thigh as far as the knee. He reported the pain was worse with any prolonged sitting, standing, walking or other activity.
5. Mr Doyle reported he could shower and dress with care but that he performed very little around the house and mostly spent his time watching TV.
6. Dr Haynes recorded Mr Doyle was taking extensive medication, including Zyprexa for his psychological condition, Suboxone wafers for pain, Seroquel at night for his psychological condition, Serepax for anxiety, Somac for gastric reflux, insulin for diabetes, Panadol Osteo - two tables, three times a day for pain, Brufen - one tablet, three times a day for pain, Lipidil for cholesterol, Forxiga for diabetes and Metformin for diabetes.
7. Dr Haynes observed Mr Doyle walked slowly and commented that he demonstrated marked restriction of low back movement and tenderness to light palpation throughout the lumbar region upon clinical examination.
8. Dr Haynes considered the complaints of tenderness were not consistent with any organic condition and was doubtful that Mr Doyle made a genuine effort with back movement.[53]
9. Dr Haynes also noted straight leg raising was normal of both sides whilst seated but that Mr Doyle reported posterior thigh pain with straight leg raising on the left. Dr Haynes recorded that deep tendon reflexes could not be elicited in either leg.
10. Dr Haynes reviewed the reports from the MRI scan of 24 November 2017 and CT scan of 18 March 2022 and considered they displayed degenerative change and disc bulging at the L4-5 level which was consistent with the normal aging processes. He also considered the reports revealed bilateral pars defects which were not consistent with the work incident in 2017 but were rather a longstanding condition, possibly arising in childhood.
11. Dr Haynes considered there was no evidence of a back injury related to the work incident occurring in 2017 and that the plaintiff's ongoing back symptoms were more likely related to degenerative processes and unfitness.
12. In terms of treatment, Dr Haynes noted the majority of the plaintiff's medication was unrelated to the back injury, whilst the Suboxone, Panadol Osteo and Brufen were for the back condition. He considered such medication would be appropriate if Mr Doyle was experiencing significant back pain due to the degenerative changes and given his overweight build. He did not consider he needed treatment for any work-related back condition and commented that his current symptoms would be relieved to some extent by weight loss and exercise. Dr Haynes considered there was no indication for surgery and that it was likely Mr Doyle would experience recurrent back pain for the foreseeable future if he did not lose weight and improve his physical fitness.
13. Dr Haynes concluded Mr Doyle was unfit for all work duties predominantly due to his psychological condition but commented further that he was, from a "practical point of view", unfit for all work duties.[54]
14. Dr Haynes opined that Mr Doyle's low back condition was due to age-related degeneration and obesity. He did not accept that there had been any work-related aggravation.
15. In the supplementary report dated 12 March 2025, Dr Haynes was provided with clinical records, as well as the report of Dr Prassana dated 11 October 2016. Dr Haynes confirmed the additional records provided further details regarding the plaintiff's troubled childhood, the drug and alcohol issues within his immediate family, the plaintiff's own drug and alcohol issues, his unrelated pancreatitis and psychological conditions, as well as his medication regime for such unrelated health issues.[55]
16. Dr Haynes was asked to advise whether such information caused him to alter the opinions in his earlier report. Dr Haynes confirmed his opinion was that Mr Doyle was not suffering from any back injury related to the incident in 2017 and that he had reported significant psychological conditions and other health concerns which may also be impacting upon his fitness for work and day-to-day symptoms.
17. Dr Haynes commented he did not have the specialist expertise required to assess such psychological conditions and that his earlier report was focussed entirely on the plaintiff's musculoskeletal condition. As such, Dr Haynes confirmed the additional clinical material and report of Dr Prassana did not cause him to alter his earlier opinions.

Dr Terence Saxby, Consultant Orthopaedic Surgeon

1. The defendant tendered a report of Dr Saxby dated 28 April 2025 which related to an examination which took place on 10 April 2025.[56]
2. Dr Saxby recorded a consistent history regarding the work incident in 2017 and confirmed Mr Doyle suffered from unrelated conditions including diabetes, pancreatitis and psychological illness.
3. Mr Doyle reported he was taking Tramadol, Lyrica and Suboxone. He complained of low back pain and posterior thigh and leg pain with some associated pins and needles. Mr Doyle reported he could sit for 10 to 15 minutes, stand for 20 minutes and had trouble bending and lifting. Mr Doyle confirmed he received assistance with household duties from the NDIS and could undertake his own personal care but required assistance putting on socks and shoes.
4. Dr Saxby confirmed Mr Doyle had not returned to work and was in receipt of the Disability Support Pension for his mental health issues. Mr Doyle reported he mostly watched television and played video games and went on walks for his general fitness.
5. Dr Saxby recorded Mr Doyle was cooperative and could freely move around the office with no limp. He also noted he could remove his shoes and climb up and down the examination couch without difficulty.
6. Upon clinical examination, Dr Saxby recorded there was no loss of lumbar lordosis, no spasm and no tenderness but noted reduced range of motion. He found normal power in the lower extremities, normal hip and knee motion and no definite sensory loss.
7. Dr Saxby reviewed the MRI scan of 24 November 2017 and CT of 18 March 2022. Dr Saxby concluded the imaging confirmed Mr Doyle had degenerative disease of his lumbar spine with a bilateral pars defect at L5 but no significant neural compression. He considered that the bilateral pars defect was a developmental abnormality of the spine and that the disc degeneration at L4-5 was pre-existing and not caused by the work incident in October 2017.
8. Dr Saxby accepted that the work incident in October 2017 had materially contributed to the spinal condition, insofar as it caused an aggravation of the pre-existing degenerative disease. However, Dr Saxby considered the material contribution had ceased and, at the time of examination, the plaintiff's ongoing condition was the result of the natural progression of the underlying degenerative disc disease, rather than the work incident in 2017.
9. Dr Saxby accepted that the back condition would be somewhat limiting in relation to activities of daily living. He did not expect the condition to be as disabling as reported by Mr Doyle.
10. It was Dr Saxby's opinion that most of the reported disabilities stemmed from the plaintiff's mental health issues, as opposed to any lumbar spine pathology.
11. Dr Saxby considered the prognosis should be good given there was no neural compression on the imaging. Dr Saxby commented that most patients with a condition like Mr Doyle's would be able to manage reasonably well with exercise and avoidance of certain activities.
12. Dr Saxby commented that Mr Doyle could return to his previous employment, or other suitable duties from a physical perspective, but mental health issues may present a barrier. He considered that Mr Doyle's pre-existing drug and alcohol issues may be impacting upon his motivation to return to work.

1. Prior to any video footage being shown, Mr Doyle said he could run the distance of the court room if, for example, he needed to cross the road in a hurry but no further than that.[57] He said that if he walked more than 100 metres, he would then need to slow down or take a rest due to the back and referred leg pain.[58]
2. The defendant then played (and tendered) video footage of Mr Doyle which was taken on 10 April 2025.[59]
3. The video footage lasted 10 mins 28 seconds.
4. I watched the video footage when it was played in Court and have reviewed it in my Chambers.
5. I note the video footage showed Mr Doyle:
   • Attending a suburban shopping strip for a few minutes.
   • Walking in the shopping centre carpark.
   • Getting into the passenger seat of a white Jeep vehicle on two occasions - on one occasion he ran across a lane of traffic to get into the vehicle.
   • Attending a building at 485 La Trobe Street, Melbourne - he displayed a slight limp when entering the building. It was said that, on this date, he was attending an examination with Dr Saxby, whose rooms are located inside the building.
   • Walking from 485 La Trobe Street, Melbourne to Southern Cross Station. He displayed a slight limp when he left the building. The limp was not apparent for the rest of the footage.
   • Whilst walking to Southern Cross Station, he ran across a lane of traffic when crossing Lonsdale Street near Spencer Street.
6. After the surveillance was shown, Mr Doyle:
   • Accepted he was seen walking through a carpark at a relatively fast pace but disagreed that he did so without any sign of pain.[60] He also accepted that he was seen to run towards a car that was picking him up but disagreed he did so without any pain.
   • Accepted that after leaving the rooms of Dr Saxby on La Trobe Street, he walked up a slight incline with a bit of a limp. He also accepted that whilst walking away from the rooms of Dr Saxby, he began to walk a lot quicker. Mr Doyle maintained this was because he was walking downhill and he again denied that he did so without any pain. Mr Doyle also accepted that during this part of the footage, he was seen to run for a brief period but again denied it was without any difficulty or pain.
7. Crucially, the video footage did not demonstrate him to undertake any activity that he had denied being capable of undertaking. There was nothing in the video footage that could be described as a heavy activity. A number of doctors had commented on Mr Doyle's antalgic gait.[61]
8. I find that the video footage was relatively innocuous.

1. Mr Doyle reported constant pain in his low back which had not improved since 2017.[62] He also had sciatic-type pain travelling down his left leg which was not constant but was there much of the time.[63]
2. Mr Doyle said that his pain was worsened by any bending, twisting and lifting. He said sitting and standing for long periods increased his pain. He reported difficulty with driving beyond short distances.[64]
3. Mr Doyle has been prescribed various medications for management of his pain, including Lyrica, Panadeine Forte, Tramadol and Suboxone.[65]

1. Mr Doyle reported he was limited in what jobs he could do around the house, including vacuuming and washing the dishes.[66]
2. Mr Doyle has a support worker who comes to his home twice a week. The support worker assists Mr Doyle with cleaning and gardening work, such as mowing, whipper-snipping, vacuuming and mopping.

1. Mr Doyle said he suffered from broken sleep due to his back and leg pain, which would cause him to wake regularly throughout the night.[67] This would leave him feeling unrefreshed and tired during the day.

1. Mr Doyle said in the past, he had enjoyed karate and mixed martial arts. He achieved a blue belt. He has been unable to return to this hobby since the injury.[68]
2. Mr Doyle said in his first affidavit that he had gained 45 kilograms since 2017. In his second affidavit he confirmed he had lost approximately 10 kilograms of that 45 kilograms. He attributed the weight loss to a reduction in appetite rather than any increase in physical activity.[69]

1. Ms Levi, Mr Doyle's half-sister, affirmed an affidavit on 10 February 2025.[70] She lives with the plaintiff.
2. Ms Levi confirmed she told Mr Doyle that he could live with her on the condition he stopped getting in trouble with the police and stopped associating with certain friends.
3. Ms Levi reported since living with her, Mr Doyle had turned his life around and was not using illicit drugs and had not been in any further trouble with the police.
4. Ms Levi confirmed Mr Doyle was involved in karate and martial arts when he was younger. Ms Levi said that Mr Doyle had ceased these activities. It was her understanding that this was due to his back condition.
5. Ms Levi said she had observed her brother grimacing as if in pain and had witnessed him display difficulty with bending and lifting. He also regularly reported to her that he has slept badly due to the pain. Ms Levi confirmed that the plaintiff's support worker did a lot of the cleaning at their house.
6. Mr Levi deposed that her brother did not leave the house very often and had a very limited social life.

1. Counsel for Mr Doyle submitted that he presented as a candid witness who made no attempts to embellish or exaggerate his evidence and that he made a number of appropriate concessions, including that he had previously given some of his prescription pain medication to his sister, rather than taking it himself.
2. In terms of consequences, Mr O'Sullivan submitted Mr Doyle had experienced persistent low back pain, unimproved since the work incident in 2017, and was taking various medication to manage his pain, including Suboxone (discussed below), Tramadol, Lyrica, ibuprofen and Panadol Osteo. It was also said Mr Doyle had been unchallenged in his evidence that he experienced disrupted sleep, was unable to pursue hobbies such as martial arts, and had lost fitness and experienced significant weight gain due the injury. It was said these consequences met requisite serious injury test.
3. Mr Doyle submitted Dr Doig and Associate Professor Love, two orthopaedic surgeons engaged by the defendant, supported Mr Doyle on issues regarding diagnosis and causation.
4. Mr Doyle submitted that Dr Saxby was the only surgeon who concluded any work-related contribution to the plaintiff's lumbar spine condition had ceased. It was also submitted there was no clear path of reasoning as to how Dr Saxby reached such a conclusion, given the plaintiff's relatively unchallenged evidence was that he had experienced near constant low back pain since the accident in 2017.
5. Counsel submitted that Associate Professor Love's opinions should be accepted over Dr Saxby, as Dr Saxby's speciality was as a lower limb foot and ankle surgeon, whilst Associate Professor Love had a specialist interest in hip and knee surgeries, with spinal injuries as a sub-speciality.
6. Counsel noted the defendant otherwise relied upon the opinions of Dr Lucas, Dr Haynes and Dr Mutton (occupational physicians) in relation to diagnosis and causation. It was submitted issues of diagnosis and causation were better commented upon by orthopaedic surgeons and neurosurgeons, rather than occupational physicians.
7. In terms of the non-compensable conditions, it was submitted the plaintiff's evidence regarding the pancreatitis was strong and should be accepted. It was said Mr Doyle accepted everything that was put to him during cross-examination regarding the condition leading up to and post-dating 2017, but was equally resolute in his evidence that the condition had not affected him since 2020, being the time in which he ceased drinking alcohol.
8. Counsel submitted there was no medical evidence to suggest he could not work due to his pancreatitis.
9. Mr O'Sullivan submitted Mr Doyle readily accepted he had struggled with drug dependency issues in the past but his clear evidence was that this was no longer a problem and had not been a concern for a number of years.
10. In terms of medication, the Court raised a query whether the Suboxone was in fact prescribed for the compensable injury. This was raised by the Court as there was medical evidence revealing that, prior to the compensable injury, Mr Doyle was in fact prescribed Suboxone in the context of his drug dependency issues and there was seemingly no medical evidence confirming it was now prescribed for the compensable injury. Mr O'Sullivan conceded the only evidence supporting that Mr Doyle was now taking Suboxone for the compensable injury was in the plaintiff's own affidavit material.
11. Regardless, it was submitted even if the Suboxone was prescribed for the previous drug dependency issues, there were a range of other medications clearly prescribed for the compensable injury, including Tramadol, Lyrica, ibuprofen and Panadol Osteo.
12. In terms of work capacity, Mr O'Sullivan accepted Mr Doyle was in receipt of a Disability Support Pension for reasons unrelated to the compensable back injury. However, Mr O'Sullivan submitted there could be no dispute that, at the time of the workplace injury, Mr Doyle was psychiatrically well enough to work full-time for the employer.
13. Counsel submitted that, in accordance with approach taken in Acir v Frosster Pty Ltd,[71] the interaction between the compensable injury and unrelated psychiatric conditions was a matter better resolved at trial, rather than during the serious injury application.
14. In terms of alternative employment, Mr O'Sullivan submitted it was apparent Mr Doyle was an "unsophisticated man of limited intelligence",[72] who had previously performed manual-type work which he was now incapacitated from doing.
15. Whilst Associate Professor Love's opinion on alternative employment was confusingly worded, it was submitted that he did not support the proposition that Mr Doyle had the capacity for full-time alternative employment.
16. Mr O'Sullivan submitted Dr Akil concluded Mr Doyle did not have capacity for alternative employment and that, whilst Dr Wong suggested Mr Doyle may need further assessment to see if he could perform alternative lighter work, nothing further had come of this.
17. Finally, Mr Doyle relied upon Dr Awad, who concluded he was totally incapacitated for any form of employment due to various conditions, including his physical injury, mental health issues, his age and an underlying learning disability.
18. Mr Doyle also noted the defendant had not offered any evidence to the Court regarding potential alternative employment options.

1. The defendant's primary submission was that Mr Doyle suffered a work-related aggravation of a pre-existing degenerative condition of the lumbar spine at work in October 2017, but that this was temporary and short-lived and had resolved well prior to the hearing. In support of this, the defendant relied upon the conclusions of Dr Mutton and Dr Lucas that any work-related aggravation had ceased by the time of their examinations.
2. The defendant also noted Dr Haynes' findings that Mr Doyle did not appear to make a genuine effort with regard to back movements and Dr Saxby's comments that one would not expect the pathology, as seen on the radiological investigations, to be as disabling as Mr Doyle reported it to be.
3. The defendant's alternative submission was that if Mr Doyle was still suffering from a work-related condition of the lumbar spine, then the consequences could not be described as being "more than significant or marked" and as being "at least very considerable" when considered in the range of impairments. The defendant made brief submissions regarding the lack of treatment Mr Doyle was undergoing at the time of the hearing.
4. In terms of Mr Doyle's material, the defendant submitted the weight that could be given to the opinions of Dr Wong, as the treating GP, was limited as it was unclear from the material as to when and how often Dr Wong had actually examined his back.
5. The defendant also criticised the lay affidavit of Ms Levi. The defendant maintained that the nature of their relationship in the period after the work incident in 2017 and prior to him moving in with her was unclear, meaning it was also unclear what, if any, opportunities she had to observe him after the work incident and prior to him moving in.
6. The defendant also submitted very sparse details were provided by Ms Levi regarding the plaintiff's pre-injury involvement in karate. The defendant submitted that her affidavit was of limited assistance in corroborating the extent of the plaintiff's limitations, as it provided very limited detail, but it was conceded that the defendant did not cross-examine Ms Levi or challenge Mr Doyle regarding his involvement in karate.
7. Finally, the defendant submitted the plaintiff's evidence regarding his capacity for certain activities was challenged by the surveillance. It was said that the surveillance showed him walking at a fast pace for an extended period with no sign of pain, and that this was contrary to his evidence that he could only walk at a fast pace for a minute or two. The defendant therefore maintained the credibility and reliability of Mr Doyle were in issue.
8. Whilst the defendant made a generalised submission that Mr Doyle was obliged to disentangle the consequences of the two separate incidents of October 2017, when he was carrying the scaffolding alone and the slipping/jarring incident which occurred when he went back to work for a short period after the initial incident, the submission was not pressed.
9. The defendant submitted Mr Doyle had not established that he was incapacitated for work as a result of the work incident in 2017 and that he could in fact return to any form of employment.[73]
10. In support of this, the defendant noted Dr Mutton suggested Mr Doyle had capacity to undertake suitable employment and that resolution of the condition was likely to be seen in three months. The defendant also noted Dr Wong did not entirely rule out a return to employment and had in fact suggested further assessment to see whether Mr Doyle could return to alternative work.
11. The defendant otherwise maintained the reason why Mr Doyle ceased work in 2017 was complicated. The defendant submitted Mr Doyle had been impacted by various non-compensable conditions, including the severe pancreatitis which had resulted in him being hospitalised on a number of occasions throughout 2017, 2018, 2019 and 2020. It was also put that in October 2017, being the month in which the workplace accident occurred, he was prescribed OxyContin for the pancreatic condition.
12. The defendant conceded that there was no medical material regarding the impact of the pancreatic condition upon Mr Doyle at the time of the hearing. The defendant submitted the most recent reference to pancreatitis within the clinical records was seen in 2023, when medication triggered an episode of pancreatitis.
13. The defendant conceded there was nothing in the material to suggest Mr Doyle had been hospitalised after 2020.[74]
14. The defendant submitted the plaintiff's claim was complicated by his substance abuse issues which pre-dated the workplace incident and his various periods of incarceration. It was the defendant's submission that, in reviewing the material of Dr Wong, it was open to conclude Mr Doyle was taking Suboxone for his drug and alcohol dependency issues, as opposed to back pain.
15. Finally, the defendant noted that the plaintiff's psychiatric state was also a relevant factor in considering his capacity for employment. In this regard, the defendant noted Dr Haynes' opinion that Mr Doyle was incapacitated for employment due to his psychiatric state, and Dr Saxby's opinion that most of the plaintiff's disability resulted from his mental health issues.
16. The defendant accepted that Dr Haynes and Dr Saxby were not qualified to provide an opinion as to the plaintiff's psychiatric state but submitted it was open for the Court to find they had not found any physical basis for his incapacity.
17. The defendant also noted Mr Doyle was in receipt of a Disability Support Pension due to his psychiatric state.

1. I have had regard to the guidance provided by the Court of Appeal in the case of Church v Echuca Regional Health[75] ("Church") about the use of surveillance film to discredit a plaintiff.
2. The video footage has not been shown to any doctors for their commentary. In accordance with Church, I will not speculate as to whether they would or would not have altered their opinions if they were shown it.[76]
3. I am acutely aware that Mr Doyle has a significant pre-existing psychiatric condition which may impact upon the quality of the plaintiff's evidence.[77]
4. I find that the video footage largely depicted Mr Doyle acting consistently with the complaints to the Court and to medical practitioners and examiners.
5. Overall, the video footage was, in my opinion, a non-issue.
6. The attack on Mr Doyle's credit and reliability was mainly based on the video footage. Given my findings on the video footage, the attack has failed.

1. It was clear that Mr Doyle found giving evidence a difficult experience. There is no doubt that he has significant unrelated medical conditions and has had an extremely troubled and disrupted life.
2. Many of his responses in cross-examination were confirmed by contemporaneous medical evidence, such as his ongoing reporting of low back pain to his GP, and his distinction between the low back pain flowing from the workplace incident in 2017 and the location of the referred epigastric pain.
3. I formed the impression that Mr Doyle gave evidence in a forthright manner and made appropriate concessions. Overall, I find that Mr Doyle was doing the best he could when he gave evidence.

1. Despite the criticisms raised by the defendant, I find Ms Levi's uncontested evidence credible and generally supportive of Mr Doyle.

1. Taking all the evidence into account, and bearing in mind that this is a gateway application, I prefer the evidence that Mr Doyle currently has no capacity for pre-injury employment over the defendant's evidence.
2. I prefer and accept the opinions of Dr Wong, Dr Akil, Dr Awad, Dr Doig, Associate Professor Love and Dr Mutton that Mr Doyle cannot return to work as a scaffolder due to his work-related injury.
3. I note that Dr Haynes expressed a similar view that Mr Doyle was incapacitated for work. However, Dr Haynes considered that the incapacity for scaffolding work was due to psychiatric factors. Given the concessions made by the defendant that Dr Haynes is not qualified to express such an opinion, I put his opinion to one side.
4. I note that Dr Lucas has expressed the opinion that Mr Doyle could return to pre-injury duties and hours from a physical perspective. I reject that opinion as it is contrary to the overwhelming weight of the other medical opinions before the Court.
5. I find that the defendant has not satisfied its evidentiary onus to prove that Mr Doyle is capable of undertaking suitable employment.
6. After considering the whole of the evidence, I find that Mr Doyle cannot return to his pre-injury employment as a scaffolder. I further find that Mr Doyle has no capacity for manual labour due to his back condition.
7. I accept Mr O'Sullivan's submission, consistent with the approach adopted by J Forrest J in Acir v Frosster Pty Ltd,[78] that the impact of pancreatitis and his mental health issues on his capacity for employment are questions which are relevant to the assessment of damages in any subsequent common law claim.
8. Given Mr Doyle's limited education, his work history and his pre-existing health issues (which did not prevent him from obtaining the job with the employer and working on a full-time basis), I find that Mr Doyle's loss of capacity to undertake pre-injury employment or suitable employment now and into the foreseeable future satisfies the narrative test.
9. I find that in relation to the pecuniary loss claim, the impairment consequences of Mr Doyle's injury are "serious" and satisfy the narrative test and the tests in s325(2)(e)(i) and (ii) of the Act.
10. Therefore, Mr Doyle has established an entitlement to commence a proceeding for loss of earning capacity damages.
11. As a consequence, Mr Doyle also has leave to commence proceedings for pain and suffering damages.[79]

1. I will hear from parties on the question of costs.

[1] Transcript ("T") 5, Line/s ("L") 22-25.

[2] Plaintiff's Exhibit P1, Plaintiff's Court Book ("PCB") 14.

[4] Plaintiff's Exhibit P1, PCB 12-19, 93-94.

[6] Plaintiff's Exhibit P3-4, PCB 23-24.

[7] Plaintiff's Exhibit P5, PCB 25-29, Plaintiff's Exhibit P6, PCB 30-31.

[8] Plaintiff's Exhibit P7-10, PCB 40-68.

[11] Defendant's Exhibit D2, Defendant's Court Book ("DCB") 12-13, Defendant's Exhibit D12, DCB 130-131.

[12] Defendant's Exhibit D3-5, 7 DCB 14-55.

[13] Defendant's Exhibit 8-11, DCB 85-129, 132-318.

[14] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170.

[21] T23, L7-13; T23, L28-31; T24, L1-3.

[24] See: T37, L27-31 - T38, L1-4; T39, L2-14; T44, L18-31 - T45, L1-10; T86, L12-31 - T87, L1-7

[25] It was not put to Mr Doyle that he was doctor shopping for drugs.

[31] Plaintiff's Exhibit P5, PCB 25-29.

[34] Plaintiff's Exhibit P6, PCB 30-31.

[36] Plaintiff's Exhibit P7, PCB 40-43.

[37] Plaintiff's Exhibit P8, PCB 44-48.

[38] Plaintiff's Exhibit P9, PCB 49-56.

[39] Plaintiff's Exhibit P10, PCB 57-65.

[40] Plaintiff's Exhibit P10, PCB 66-68.

[41] Both of these reports were tendered by the defendant and are discussed later in this judgment.

[43] Defendant's Exhibit D12, DCB 130-131.

[44] Defendant's Exhibit D8, DCB 85-104 and Defendant's Amended Court Book 4-9.

[45] Defendant's Exhibit D9, DCB 105-114, 120-129, 132-150, 152-153, 188, 191, 193-202.

[46] Defendant's Exhibit D10, DCB 115-117, 151, 154-187, 189-190, 192, 203-207.

[47] Defendant's Exhibit D11, DCB 118-119, 208-318.

[48] Defendant's Exhibit D3, DCB 14-19.

[49] Defendant's Exhibit D4, DCB 20-28.

[51] Defendant's Exhibit D5, DCB 29-37.

[52] Defendant's Exhibit D5, DCB 38-41.

[53] Mr Doyle was not cross-examined on this point.

[55] The content of many of the clinical records were not put to Mr Doyle.

[56] Defendant's Exhibit D7, DCB 42-55.

[69] Plaintiff's Exhibit P1, PCB 15, 18.

[70] Plaintiff's Exhibit P2, PCB 20-22.

[71] [2009] VSC 454.

[75] [2008] VSCA 153.

[77] As discussed in Stevens v DP World Melbourne Ltd [2022] VSCA 285 at paragraph [45] and in Milonas v Monash Health [2024] VSCA 57 at paragraphs [72]-[82].

[79] Advanced Wire & Cable Pty Ltd v Abdulle (supra).