Eymir v VWA [2025] VCC 422

1. The plaintiff deposed that in her pre injury work as a kitchen hand, she relied on full and unrestricted use of both arms and hands. The plaintiff described developing increasing pain in both of her hands and fingers, and particularly her thumbs, and also experiencing strange pins and needles feelings in her fingers.
2. The plaintiff pinpointed her physical problems commencing in about 2014, but she worked on with some symptoms of pain. However, the pain worsened over time. She underwent nerve conduction studies, which revealed a problem with carpal tunnel in each wrist.
3. As to the paragraph (c) injury claim, the plaintiff says she became depressed as a result of her injuries and has been referred to a psychologist for counselling, and to a psychiatrist. She remains under such care. She remains in receipt of medication to treat her mental state.
4. The plaintiff was represented by Ms J Frederico of counsel, with Mr T Katz of counsel. The defendant was represented by Ms M Cameron of counsel.

1. The plaintiff is aged 56 years. She relies on bilateral carpal tunnel syndrome as the injury. She argued that if the law does not permit a finding that bilateral carpal tunnel syndrome for the left and right hand and wrists as one body function, that the injury to each of the right and left separately satisfies the relevant test.

1. In addressing the question whether bilateral carpal tunnel is an impairment to a body function, the plaintiff submitted that bilateral carpal tunnel is an exception to the requirement that impairments to different body parts cannot be aggregated. The plaintiff did not point to case law in support of the contention.
2. I am satisfied that as the law stands, and in light of the decision of the Court of Appeal in Lexa v Transport Accident Commission ("Lexa"),[2] there are limited circumstances in which a plaintiff is able to rely on bilateral carpal tunnel as constituting impairment to a single body function. Instead the extent of impairment to each of the right and left limb will call to be separately assessed to determine whether the test for seriousness has been established by a plaintiff. Put another way, it seems likely that the decision in Lexa means, that in cases involving bilateral carpal tunnel syndrome, an impairment to one, or both of each affected limb must meet the serious injury test, and reliance cannot be placed on an aggregation of the injuries. In this regard, I respectfully agree with the detailed analysis of case law and principles expressed by her Honour Judge Clayton in Puhovac v VWA ("Puhovac").[3]

1. At the commencement of the hearing, and conscious the plaintiff presented with an accepted claim, I asked the defendant what matters were in issue. Ms Cameron's initial submission was largely to the effect that everything was in issue namely, causation, range and stability, as well as the legal capacity to aggregate bilateral injuries as a single impairment, and a challenge whether the plaintiff had disaggregated unrelated and previous physical injuries along with the degree of her severity and/or stability of mental condition. Later on, the defendant said it did not challenge the causation of the onset and development of carpal tunnel, but it continued to press whether the plaintiff had proved that her "current injury condition and consequences arise from the compensable work injuries".[4] I took this to mean whether the plaintiff had proved that her injury is current and continuing and likely permanent.

1. The plaintiff relied on the following evidence:

(a) Affidavit of Plaintiff dated 26 September 2023;[5]

(b) Further Affidavit of the Plaintiff dated 11 September 2023;[6]

(c) Lay Witness Affidavit of Zehra Eymir dated 24 September 2024;[7]

(d) Report of Dr Shehata dated 4 September 2024;[8]

(e) Three reports of Dr David McCombe dated 2 October 2023, 19 February 2024 & 7 August 2024;[9]

(f) Report of Dr Duraiswamy dated 3 September 2024;[10]

(g) Report of Ms Sumertas dated 15 July 2024;[11]

(h) Report of Dr Weissman dated 4 July 2024;[12]

(i) Report of Mr Stephen Doig dated 8 July 2024;[13]

(j) Nerve Conduction Study dated 22 August 2012;[14]

(k) Ultrasound Right and Left Wrist dated 27 February 2020;[15]

(l) Nerve Conduction Study dated 30 March 2020;[16]

(m) Ultrasound Right Elbow dated 23 April 2020;[17]

(n) MRI Cervical spine dated 25 May 2020;[18]

(o) Three Operation Reports dated 24 July 2020, 24 May 2021 & 2 September 2021;[19]

(p) X-Ray Right Thumb dated 14 December 2020;[20]

(q) Ultrasound Right Thumb dated 15 December 2020;[21]

(r) MRI Right Wrist dated 13 April 2021;[22]

(s) Nerve Conduction Studies and EMG dated 20 May 2021;[23]

(t) Nerve Conduction Studies and EMG dated 21 October 2021;[24]

(u) Nerve Conduction Study Report dated 1 August 2023;[25]

(v) MRI Right Wrist dated 12 October 2023;[26]

(w) Ultrasound Right Elbow dated 21 February 2024;[27]

(x) Workers Injury Claim Form dated 19 February 2020;[28]

(y) Certificate of Capacity dated 18 June 2024;[29]

(z) Centrelink medical certificate dated 18 June 2024;[30]

(aa) Letter from Mr David McCombe to Dr David Freilich dated 3 April 2024; and[31]

(bb) Clinical notes of Alpha Health Physiotherapy dated 6 October 2023 to 4 October 2024.[32]

1. The defendant relied on the following evidence:

(a) Report of Dr Audi Widjaja dated 8 January 2020;[33]

(b) Four reports of Mr Anthony Berger dated 30 July 2020, 17 December 2020, 22 July 2021 & 27 October 2021;[34]

(c) Dr Baglar questionnaire dated 6 September 2021, report dated 7 September 2021 & report dated 6 May 2022;[35]

(d) Report of Dr Barberis dated 20 January 2022;[36]

(e) Report of Dr Dennis Handrinos dated 2 February 2022;[37]

(f) Report of Professor Evange Romas dated 7 July 2022;[38]

(g) Report of Professor Saji Damodaran dated 20 July 2022;[39]

(h) Medical Panel opinion and reasons dated 16 January 2023;[40]

(i) Report of Dr Loretta Reiter dated 10 September 2024;[41]

(j) Worker's Injury Claim Form dated 7 July 2021;[42]

(k) Rejection of claim for compensation dated 6 August 2021;[43]

(l) Report of Dr Leon Le Leu dated 2 August 2021;[44]

(m) Records of Alpha Health Physiotherapy;[45]

(n) Centrelink certificates of capacity of Coburg Family Medical Centre dated 10 July 2023 and 11 April 2023;[46]

(o) Clinical records of Ms Sumertas;[47] and

(p) Report of Dr Haka Baglar dated 14 November 2022.[48]

1. The definition of "serious injury" contained in section 325(1) of the Act reads:

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

(c) permanent severe mental or permanent severe behavioural disturbance or disorder...

1. The court must not give leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the plaintiff's "injury" is a "serious injury" within the meaning of the definition of "serious injury" contained in section 325(1) of the Act.[49]
2. To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:

"the injury" suffered by her arose out of, or in the course of, or due to the nature of employment;[50]

"the injury" and resulting impairment must be "permanent" - that is, permanent in the sense that it is "likely to last for the foreseeable future";[51]

the "consequences" of the impairment in relation to "pain and suffering" must be "serious" - that is, the impairment or loss of body function "when judged by comparison with other cases in the range of possible impairments ... may be fairly described as being more than significant or marked, and as being at least very considerable".[52]

1. The requirement to satisfy these elements is sometimes referred to as the "narrative test".
2. In determining the "consequences" of an injury, the court is required to consider them as they affect this plaintiff, viewed objectively, arising from his injury and according to an assessment of range of like impairments.
3. In determining the application the court:

must not take into account psychological or psychiatric consequences of "the injury" for the purposes of paragraph (a) of the definition of "serious injury" - these can only be taken into account for the purposes of paragraph (c) of the definition of "serious injury";[53]

must assess whether "the injury" is a "serious injury" as at the time the application is heard;[54]

must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[55]

1. In TTB SMS Pty Ltd v Reading,[56] Tate and T Forrest JJA said that on a serious injury application in a pain and suffering case, in assessing the seriousness of claimed impairment consequences, a Court is required to determine a number of matters and these include both the effects of the impairment and those aspects of the affected body function which remain unaffected.[57] A serious injury also requires a permanent serious impairment or loss of a body function.[58] Furthermore, an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.[59]

1. The plaintiff's background and work ethic is admirable. She impressed me as a diligent and dedicated woman. She arrived in Australia in 1988 from Turkey. She worked for the Ford Motor Co. sewing upholstery. She had some time out of work for family and children rearing, and in 1995, she returned to work as a machine operator but with a different company.
2. In 2001 she commenced work for Lions Biscuits as a process worker, and about two years later she moved to a plastics company as a machine operator making automotive parts.[61]
3. In 2008, she commenced work with the Chandler McLeod Group which became Programmed Skilled Workforce, and in that guise, she worked for Qantas at Tullamarine as a kitchen hand. The company later became DNATA Catering. She worked for 14 years as a casual employee, having various shifts but in later years, she largely worked consistent shifts from 7:00 am to 2:30 pm and earned about $940 a week.[62]

1. In addressing prior injuries and illnesses, the plaintiff deposed that in 2015, she twisted her left knee and had arthroscopic surgery from which she made a good recovery although the trouble flared again in 2019, and it has since been "a niggling ongoing problem".[63]
2. The plaintiff also deposed to long-standing problems with her back, neck and hip which were painful and continue to cause her problems. She deposed that she has attended her doctor about them, but has not required surgery or "other significant treatment".[64]
3. The plaintiff said she had experienced problems with her shoulders and in the past had been referred to a rheumatologist.[65]

1. The plaintiff deposed that her work as a kitchen hand involved food preparation, and packaging. She had to cut, grate, and chop fruit, vegetables and meat to make salads, and then put them into a container and mix them. She also had to use her arms and hands to mix sauces, to plate and package foods, push trolleys, and lift heavy pots and trays weighing approximately 10 to 12 kgs. Her work was daily and repetitive.[66]
2. The plaintiff described developing increasing pain in both her hands and fingers and particularly her thumbs, and of experiencing a pins and needles feeling in her fingers that commenced in about 2014, but she continued to work despite some symptoms of pain. The pain worsened, and in about 2020, she attended the company doctor, who sent her for ultrasound tests on both of her arms. She also saw her General Practitioner ("GP") Dr Kurnaz, but because he did not treat WorkCover patients, she was referred to Dr Baglar. The plaintiff deposed that nerve conduction studies revealed carpal tunnel in each wrist. She was referred to Mr Berger, a hand surgeon, who recommended surgery.[67]
3. The plaintiff had an accepted WorkCover claim in 2020. She was placed on light duties which did not involve any heavy use of her hands. Covid struck. The plaintiff's work ceased.[68]

1. The plaintiff underwent surgery in late July 2020 on her right wrist.
2. In May 2021, she had surgery to her left wrist.
3. In September 2021, the plaintiff had further surgery on her right hand. Hand therapy followed. She continues to have hand therapy, usually fortnightly, although at times weekly. She has been referred to a pain specialist.[69]
4. The plaintiff says she developed depression. She has been referred to a psychologist for counselling and to a psychiatrist.[70]

1. The consequences of injury relied on by the plaintiff are of pain and sensory changes in both her left and right hands. She said these changes mostly affect her first three fingers and thumb. If she uses her hand forcefully or repetitively, the pain increases. She said her hands are very weak and she has lost strength, and along with it, the ability to perform fine tasks with the fingers in both hands.[71]
2. She said she was using medication including Celebrex, Lyrica and Panadol Osteo on a daily basis. Sometimes she uses a heat pack.[72]
3. She has trouble sleeping, and wakes frequently in the night because of pain in both hands, but mostly pain in her right hand. She takes natural and prescribed tablets to assist with her sleep. She said she often gets out of bed to retrieve a heat pack, or for pain medication to help her return to sleep.[73]
4. She finds it very difficult to manage cooking or household tasks and has problems lifting more than a few kilograms in weight without increasing pain. She needs help with shopping and the laundering of clothing.[74]
5. The plaintiff said that the problems with her hands make it difficult for her to help out and to play with her two grandchildren and, in particular, to lift them without resulting increases in hand pain. Gardening, and arranging flowers, which she used to enjoy, are now very difficult and can only be performed in a very limited way.[75]
6. Although the plaintiff drives, the use of the steering wheel is difficult, and often enough causes increased pain, and therefore, she tends to limit her driving to local areas of no more than about 15 minutes duration.[76]
7. The plaintiff says she is unable to return to work as a kitchen hand, or to perform any other work of the type to which she is accustomed. Her work had always involved the use of her hands. She has limited English skills. She deposed that she is not good at computer use. She cannot contemplate what she could do for work and which she finds upsetting.[77]

1. The plaintiff's second affidavit was sworn on 11 September 2024,[78] from which the following chronology is derived:
   • On 1 August 2023, she had nerve conduction studies.
   • On 19 September 2023, she attended a psychiatrist.
   • On 2 October 2023, she went back to see Associate Professor McCombe, hand surgeon.
   • On 12 October 2023, she underwent an MRI scan of her right wrist.
   • In February 2024, she had an ultrasound of her right wrist.
2. She said she had a subsequent, as well as a more recent nerve conduction study but it appears she was wrong about this.[79]
3. The plaintiff is in receipt of Centrelink payments and remains certified by her GP as incapacitated for work.[80]
4. The plaintiff deposed to being under the care of Dr Shehata from the Coburg Family Medical Centre. She attends her psychiatrist, Dr Duraiswamy, once a month. She sees her psychologist, Ms Sumertas, every 2 to 3 weeks. She attends physiotherapy fortnightly for her wrists and hands, and takes Celebrex, Duloxetine, Nexim, Osteomol, and Agomelatine.[81]
5. The plaintiff remains under the observation of A/Prof McCombe, having last seen him a couple of months prior to the hearing. A/Prof McCombe discussed with her the possibility of further surgery on her right wrist. However, the plaintiff said that because she suffered from severe pain in her wrists after her previous operations, she has not gone down this path. A/Prof McCombe suggested a cortisone injection into her right wrist, but the plaintiff decided against it.[82]
6. The plaintiff deposed to using a hard brace when she sleeps, and a soft brace usually during the day.
7. The plaintiff said she has been diagnosed with osteoporosis and has regular Prolia injections.[83]
8. The plaintiff deposed to having made a worker's compensation claim for neck, back and shoulder pain but that it was not accepted. She said she continues to suffer from neck, back and shoulder pain and undergoes physiotherapy.[84]
9. The plaintiff said that prior to the subject injury, she suffered from some mental health issues stemming from family matters.[85]

1. The plaintiff deposed that her use of a knife to cut food, and the use of her hands to open a jar or a water bottle, to carry objects, to push, pull, lift and the like, causes increased pain in her right hand and, therefore, she tries to avoid these tasks as much as she can.[86] She deposed that the injury to her right hand has affected her ability to open doors, to write, or to make any use of it.[87]
2. She said that she continues to experience numbness in her right thumb, index and middle fingers.[88] She deposed that due to pain in her right hand she still finds it hard to get to sleep, and when she does, is wakened during the night with pain.[89]
3. The plaintiff deposed that symptoms in her left wrist and hand interfere with her capacity to perform housework, gardening and cooking.[90] Its condition contributes to difficulty in dressing, and interferes with her care of her grandchildren, impacts her social life and the ability to drive.[91]
4. The plaintiff deposed that her pain still affects her mental health.[92] She feels isolated as a result of the loss of the job that she loved. As well, and since her injury, there has been a divorce from her husband.

1. The plaintiff relied on an affidavit in support of her application from her daughter Ms Zehra Eymir dated 24 September 2024.[93] Ms Eymir was not required for cross-examination by the defendant.
2. Ms Eymir deposed to living with her mother until February 2021, when she married and moved out of her mother's home. Prior to her mother's injury, she described her as active, outgoing and energetic. She deposed that her mother worked long hours and often enough additional hours when her employer required it.[94]
3. Ms Eymir deposed that her mother's work was very much part of her identity, and she believed she had great relationships with her co-workers and management.
4. Ms Eymir deposed that whilst living at home before the injury, her mother did all the cooking and cleaning, and entertained their extended family and guests. Food and entertainment was an integral aspect of family life.[95] Since the injury, her mother has struggled and is anxious and sad, and had separated from her father after more than 35 years of marriage.[96]
5. Ms Eymir deposed that on occasions when visiting her mother she finds her lying down and in apparent pain.[97]

1. Dr Shehata is the plaintiff's GP who practices from the Coburg Family Medical Centre. He made a report dated 4 September 2024.[98] Dr Shehata said the plaintiff sustained bilateral carpal tunnel syndrome in February 2020, while working as a Qantas Caterer due to the tasks of repetitive cutting, chopping and slicing.
2. Dr Shehata documented the plaintiff's two surgeries for bilateral carpal tunnel syndrome, and a nerve conduction test from 1 August 2023, that revealed the plaintiff continued to present with bilateral carpal tunnel syndrome.
3. Dr Shehata's prognosis for the plaintiff was influenced by her constant discomfort and pain, and of struggling with numbness on a daily basis, and he believed that her injuries were likely to continue to impact her quality of life and lifestyle for the foreseeable future.[99]

1. A/Prof McCombe reported that nerve conduction studies performed in August 2023 showed persistent changes of carpal tunnel syndrome. The parameters measured in the studies had improved compared to the plaintiff's pre-operative studies, however, A/Prof McCombe said it was unclear if the plaintiff had ongoing compression or a residual effect of her nerve compression and arranged for the plaintiff to have an MRI scan.[100]

1. A/Prof McCombe reported that an MRI scan showed some slight thickening of the median nerve and possibly recurrent carpal tunnel syndrome, which state of affairs was supported by the plaintiff's symptoms and the nerve conduction studies performed in August 2023.
2. A/Prof McCombe reported that the plaintiff complained of some proximal symptoms and was tender over the median nerve at the level of the elbow, which suggested the possibility of some nerve compression in that area as well.

1. In his third report, A/Prof McCombe noted that an ultrasound from February 2024 did not reveal abnormality of the median nerve, but there was some evidence of lateral epicondylitis consistent with tennis elbow. The plaintiff was referred for repeat nerve conduction studies to see if the improvement within the parameters of nerve function had continued, or if there had been further deterioration, so as to assist him in assessing if surgery would be warranted.
2. A/Prof McCombe reported that the plaintiff had also been treated for carpal tunnel syndrome for her left upper limb.
3. A/Prof McCombe wrote that the plaintiff's treatment to date had been investigative and not active. He thought there was potential of a need for further surgery by way of a revision of the carpal tunnel release on the right side. He considered that the plaintiff's prognosis was difficult to determine while she remained under investigation.[101]

1. Dr Duraiswamy is the plaintiff's treating psychiatrist who provided a report to the plaintiff's solicitors dated 3 September 2024.[102]
2. Dr Duraiswamy recorded that the plaintiff had separated from her husband, and had been referred to him by her GP for an assessment of depression and pain following her workplace injury. Dr Duraiswamy examined the plaintiff initially on 19 September 2023 via zoom, with an interpreter present.
3. The plaintiff presented to Dr Duraiswamy with a one-year history of depression and anxiety that marked her first experience with diagnosed mental health issues. She reported a significant decline in her motivation and ability to engage in daily activities. Her symptoms included anhedonia, fatigue, body aches, and sleep disturbances. She had lost interest in activities she previously enjoyed, such as cooking, and she had withdrawn from social interactions. Her self-care had deteriorated, and she experienced increased irritability. In addition to depressive symptoms, she exhibited anxiety manifestations including a fear of impending doom, hypervigilance, and excessive worry. She experienced anxiety attacks once or twice a week, lasting approximately 10 minutes each.
4. Dr Duraiswamy thought the plaintiff's experience of psychotic symptoms were of concern and these included seeing shadows, hearing noises, and experiencing auditory hallucinations of people talking or calling her name.
5. As to the plaintiff's personal history, Dr Duraiswamy noted that the previous year she had separated from her husband of 33 years. She had two daughters, one of whom had married years ago. Following her separation, the plaintiff lived with her other daughter for 10 months, before that child moved out.
6. Based on mental status examination, Dr Duraiswamy considered that the plaintiff satisfied the criteria for major depressive disorder with psychotic features.[103] Her treatment plan included increasing her dosage of Duloxetine to 60 mg daily and Quetiapine to 100 mg at bedtime. Continued psychological support was recommended along with regular follow-ups to monitor her response to the medication changes, and overall progress.
7. Dr Duraiswamy's prognosis was that the severity and intensity of the plaintiff's depressive, anxiety and psychotic symptoms would reduce with adequate psychiatric treatment involving medication and psychological therapy, however, a complete resolution of her symptoms would be limited by her ongoing pain, her inability to get back to the workforce and the loss of her working role function.[104]

1. The plaintiff's treating psychologist Ms Sumertas prepared a report for the plaintiff's solicitors dated 15 July 2024.[105]
2. Ms Sumertas reported that by the end of 2021 the plaintiff had undergone three-surgeries and cortisone injections but reported no relief from pain. Post surgeries she developed further pain, in her neck and hips, and that the intensity of her overall pain had become severe and chronic. She reported that she subsequently began to experience symptoms consistent with depression.
3. Ms Sumertas noted that on first assessment, the plaintiff described a sense of "worthlessness" and "helplessness", being "very emotional, sensitive, stressed" with "prolonged periods of crying".[106]
4. The plaintiff reported "very low mood, constant sadness, lethargy, constant exhaustion, forgetfulness, difficulty concentrating, invasive thoughts, ruminations, extremely low motivation, social withdrawal, anhedonia and insomnia".[107]
5. During subsequent psychology sessions, the plaintiff described auditory and visual hallucinations. Ms Sumertas reported that the plaintiff's scores on the Depression, Anxiety, Stress scales were all in the "extremely severe" range.[108]
6. The plaintiff's treatment from Ms Sumertas was primarily Cognitive Behaviour Therapy ("CBT"). However, Ms Sumertas reported that it was due to a lack of response to CBT alone, that the plaintiff was referred for psychiatric assessment and treatment.
7. Ms Sumertas wrote that after taking into consideration the plaintiff's lack of response to psychological therapy and psychiatric medication, her prognosis seemed poor. She also thought that the plaintiff's poor prognosis may be due to the development of chronic pain.[109]

1. Dr David Weissman is a consultant psychiatrist, who assessed the plaintiff on 4 July 2024 at the request of her solicitors.[110]
2. Dr Weissman reported that the plaintiff presented with no prior psychiatric history.[111] She told him that before her work injury, she enjoyed shopping, socialising and going out in general. She loved working, and that "working was like going out for me", and she had a lot of friends at work.[112]
3. The plaintiff said that she "now can't lift [her] arms up very much. [She doesn't] answer calls now from people. [She doesn't] return their calls", and she avoids socialising.[113]
4. Dr Weissman thought that the plaintiff had at least a moderate amount of physical and psychiatrically based functional impairment, in terms of day to day, personal, domestic, social and community activities of daily living.[114]
5. Addressing her psychological and emotional symptoms, Dr Weissman reported that the plaintiff sees her psychiatrist every six-eight weeks and her psychologist monthly. She was taking Cymbalta and Duloxetine 60 mg per day, and Seroquel 50 mg at night.
6. When Dr Weissman asked the plaintiff about her emotional state, mood and morale she said that it was "not very good. It feels like I'm finished up".[115] She went on to say that she was "very depressed...like I don't wanna do anything and my arms don't have the strength to do anything. It's like I want to sleep all the time".[116] The plaintiff rated her mood as a 2/3 out of 10 on average.[117]
7. The plaintiff said she derived enjoyment from her grandchildren. She said that realistically she did not think that she could work.[118] She said that "I don't have the strength anymore, and I don't have the energy, and I don't feel like getting dressed up anymore". She said mentally "...I don't feel normal, like my head's not in the right place. My head feels it's all over the place".[119]
8. Dr Weissman reported the absence of an obvious pre-existing or related psychiatric condition or impairment. Dr Weissman suggested that the plaintiff's separation from her husband was related to her work injuries.[120]
9. Dr Weissman considered that the plaintiff continued to experience moderate, mixed, reactive, depressive and anxiety symptoms, themes and features with uncharacteristic reactive frustration and irritability, and some pain and symptom focus, as a consequence of, or secondary to, her work-related pain, injuries, disabilities and restrictions.
10. Dr Weissman regarded the plaintiff as most probably satisfying the diagnostic criteria for a chronic major depressive disorder, but he said he preferred a diagnosis of moderate chronic adjustment disorder with depressed and anxious mood, relevant to her employment, because the plaintiff had found it very difficult to adjust, adapt to, cope with, or come to terms with her work-related injuries.[121]
11. In Dr Weissman's opinion, on psychiatric grounds alone, the plaintiff was totally incapacitated for all work, including pre injury duties, suitable duties, or alternate duties. He thought her psychiatric prognosis was moderately uncertain and guarded, but probably relatively poor, negative and unfavourable.[122]

1. Mr Doig is an orthopaedic surgeon who provided a report on the plaintiff, following examination on 8 July 2024.[123]
2. Mr Doig diagnosed the plaintiff's right upper limb complaint as a recurrent right carpal tunnel syndrome with evidence of right subacromial bursitis. He thought her prognosis to be somewhat guarded because he anticipated that she would continue to experience trouble.
3. He identified a significant organic component to the plaintiff's pain in both upper limbs, with clear evidence that she presented with a residual carpal tunnel based on nerve condition studies. He also identified clinically demonstrated objective signs of bilateral upper limb injuries.[124]
4. Mr Doig was satisfied that the plaintiff's employment was a contributing factor to her bilateral carpal tunnel injuries.
5. Addressing her right upper limb, Mr Doig reported that the plaintiff experienced difficulty lifting, carrying, holding, pushing, pulling or reaching. Her range of movement was somewhat restricted in her shoulders, but was minimally restricted in her right hand. The plaintiff told him that she had trouble performing daily activities such as cleaning, washing dishes, gardening, playing with her grandchildren, holding scissors and squeezing the nozzle of a petrol pump.
6. Addressing the plaintiff's left upper limb injury alone, Mr Doig diagnosed recurrent carpal tunnel syndrome post-carpal tunnel release and evidence of a mild left subacromial bursitis. As with her right upper limb, Mr Doig thought that the plaintiff will have difficulty in lifting, carrying, holding, pushing, pulling and reaching. Although she did not have a limited range of motion as far as the wrist or the hand was concerned, she did have some limitation in her range of motion of the left shoulder. He said that the plaintiff's range of restrictions are the same on the right and left sides. He considered that her prognosis was guarded and her condition may warrant a redo carpal tunnel release.

1. A nerve conduction study performed on 22 August 2012, found mild median neuropathy at both of the plaintiff's wrists, consistent with bilateral mild carpal tunnel syndrome.[125]

Ultrasound of the Right and Left Wrists dated 27 February 2020

1. Bilateral ultrasounds of the plaintiff's wrists performed on 27 February 2020, revealed at the:

(a) right wrist: a mildly thickened medial nerve at the carpal tunnel level measuring a surface area of 0.13cm2 (a normal measurement is less than 0.11cm2); and a thickening of the extensor carpi ulnaris tendon and was noted as being suggestive of tendinosis.[126]

(b) left wrist: median nerve measured at 0.11cm2 at the carpal tunnel level (being the upper limit of normal).

1. The ultrasound findings raised the possibility of bilateral carpal tunnel syndrome, markedly more on the right side than the left.

1. Dr Simon Li performed a nerve conduction study and electromyography ("EMG") on the plaintiff on 30 March 2020.[127]
2. He found that the plaintiff's electrophysiological findings were consistent with bilateral median neuropathy at the wrist, in keeping with the diagnosis of bilateral carpal tunnel syndrome that was moderate to severe in the right wrist, and moderate in the left wrist.[128]

Ultrasound of the Right Elbow dated 23 April 2020

1. A right elbow ultrasound conducted on 23 April 2020, found the common flexor and common extensor origins, biceps and triceps tendons appeared intact; no elbow effusion, nor bursal wall thickening or effusion of the olecranon bursa to suggest bursitis.[129]

1. An MRI of the plaintiff's cervical spine conducted on 25 May 2020, concluded:

(a) early degenerative disc disease including broad based circumferential disc bulging at C5/6 and C6/7. However, there was no evidence of disc herniation or significant central canal stenosis at this level, with mild right sided osteophytic neuroforaminal compromise was observed at C5/6;

(b) a very small non compressive broad based right posterior central disc protrusion at C4/5; and;

(c) no additional significant abnormalities.[130]

X-Ray of the Right Thumb dated 14 December 2020

1. An x-ray of the plaintiff's right thumb taken 14 December 2020, reported normal alignment of the thumb. The joint spaces were preserved, with no subchondral change, and there was early osteophyte formation in the first metacarpophalangeal joint.[131]

Ultrasound of the Right Thumb dated 15 December 2020

1. There was a suggestion of mild thickening of the abductor pollicis brevis tendon, however, the tendon sheath was not thickened, and the scan targeted the palmar aspect/ROI. There was no significant joint effusion, and no ganglion demonstrated.[132]

1. Dr Daniel Ou performed as MRI scan of the plaintiff's right wrist on 13 April 2021. Findings included: satisfactory alignment of the wrist and thumb joint, no joint effusion, synovitis or ganglion; and no contusions or fractures.[133]

Nerve Conduction Studies and EMG dated 20 May 2021

1. A nerve conduction study was conducted on 20 May 2021. Dr Kiers concluded that there was electrophysiologic evidence of bilateral median neuropathies at the wrist consistent with carpal tunnel syndrome, which was moderate on the left and mild on the right. The study provided no evidence of ulnar neuropathies on either side.[134]

Nerve Conduction Studies and EMG dated 21 October 2021

1. A further nerve conduction study was conducted on 21 October 2021. It showed electrophysiologic evidence of mild bilateral median neuropathies at the wrist, however, there had been an improvement on both sides as compared with the previous study performed on 20 May 2021. There was no evidence of ulnar neuropathies on either side; and comparatively reduced right distal radial sensory amplitude, but there was no evidence of a significant right radial sensory neuropathy.[135]

1. Dr David Freilich conducted a further nerve conduction study on 1 August 2023. He found bilateral carpal tunnel syndrome.[136]

1. An MRI of the plaintiff's right wrist performed on 12 October 2023 identified:

(a) evidence of prior carpal tunnel release, with some scar tissue appearing to bridge the postsurgical gap, which appeared to be irregular and not particularly thickened, or under tension;

(b) subjective mild thickening of the median nerve at the level of carpal tunnel, which did not appear to be significantly inflamed;

(c) a partial tear of the styloid attachment of the triangular fibrocartilage complex ("TFCC"), as well as mild extensor carpi ulnaris tenosynovitis;

(d) mild to moderate distal radioulnar joint ("DRUJ") fusion, with perhaps very minor degeneration.[137]

Ultrasound of the Right Elbow dated 21 February 2024

1. The most recent ultrasound of the plaintiff's right elbow performed on 21 February 2024,[138] showed findings in the common extensor tendon that could point to mild lateral epicondylitis but otherwise, there were no features of median nerve entrapment, which was noted to be the clinical concern.

1. The plaintiff underwent three operations at St Vincent's Private Hospital under Mr Anthony Berger, hand and upper limb surgeon.[139]

(a) the first operation, a right endoscopic carpal tunnel release, performed on 24 July 2020, was reported as routine;[140]

(b) the second operation, a left endoscopic carpal tunnel release performed on 24 May 2021, was also reported as routine;[141] and

(c) the third operation was a release of the right trigger thumb performed on 2 September 2021, it was reported as routine.[142]

Workers Injury Claim Form dated 19 February 2020

1. The plaintiff's injury claim form lodged on 19 February 2020, described her injury as "carpal tunnel both hands", and attributed it to 13 years of repetitive work as a kitchen catering hand.[143]

1. The plaintiff lodged a Centrelink certificate of capacity completed by her GP Dr Shehata on 18 June 2024, which recorded that she had bilateral carpal tunnel syndrome.[144]
2. Regarding the plaintiff's physical function, Dr Shehata recorded that the plaintiff could work two hours per week online from home, lift a maximum 0.5 kg in both hands and avoid repetitive hand/wrist movement.
3. The plaintiff's mental health function was recorded as "low mood, no energy, not able to sleep well, has depression".[145] She reported her treatment plan as attending a "hand therapist, had two operations for both hands and one operation for her right thumb, had physiotherapy, pain medications, psychiatrist, psychologist, antidepressant".[146]

Centrelink Medical Certificate dated 18 June 2024

1. The plaintiff further lodged a Centrelink medical certificate on 18 June 2024, in which GP Dr Shehata recorded diagnosis of "bilateral carpal tunnel syndrome, depression and osteoporosis", and her condition as "exacerbation of the exiting condition".[147]
2. The plaintiff's symptoms were expressed as "pain and numbness both hands, feeling down, not able to sleep well, not able to concentrate, low energy, bodyache has done Dexa scan on 12/12/2022 revealed osteoporosis".[148]
3. Her treatment plan was recorded as "did see hand specialist, had surgeries of both wrists, physiotherapist, pain medications, psychiatrist Dr Ganesan Duraiswamy, psychologist, anti-depressant, using prolia injection for osteoporosis, was referred to see specialist (Dr Azni Wahab) for osteoporosis".[149]

Letter from Associate Professor David McCombe to Dr David Freilich dated 3 April 2024

1. A/Prof McCombe wrote to Dr Freilich requesting that he perform repeat nerve conduction studies on the plaintiff.[150] A/Prof McCombe wrote that repeat nerve studies showed some persistent median neuropathy, and while the plaintiff feels that she has stable symptoms, he wanted to see if she was deteriorating or stable.

1. The plaintiff saw Mr Widjaja, an orthopaedic surgeon, on 8 January 2020. He wrote to her GP, Dr Kurnaz of that same date providing an update on the plaintiff's condition.[151] He recorded that the plaintiff suffered from left knee mild osteoarthritis of the medial compartment with a medial meniscus tear; and pseudo articulation of right L5 transverse process with the right sacral ala.
2. Mr Widjaja said that surgical intervention was not necessary. He said that the mainstay of the plaintiff's treatment would comprise regular physiotherapy and analgesia. He noted as well that her left knee pain was "very minimal".[152]

1. The defendant tendered four reports of hand and upper limb surgeon, Mr Berger.[153]

1. Mr Berger first reviewed the plaintiff on 30 July 2020, one week after he had performed her right endoscopic carpal tunnel release. Mr Berger reported that the plaintiff's sensory symptoms were settling well, although she still reported some numbness.

1. Mr Berger again reviewed the plaintiff on 16 December 2020 and provided a report to the defendant. He wrote that she was progressing well following her right carpal tunnel surgery, and she was to have a left sided carpal tunnel release in April 2021.

1. In his third report to the defendant of 22 July 2021, Mr Berger was asked to comment on a proposed return to work program. He considered that the plaintiff was capable of performing "the duties as described with two hours of computer-based activities".[154] He said she would need to undertake her work self-paced, without any heavy lifting or other repetitive activities.
2. Mr Berger recorded the plaintiff's treatment had included a right endoscopic carpal tunnel release in July 2020. In November 2020, she presented with left sided carpal tunnel symptoms and right thumb tenderness consistent with early trigger thumb. He observed that the trigger thumb had deteriorated and when reviewed in April 2021, she had experienced a very painful trigger thumb requiring a cortisone injection, but it had failed to relieve her symptoms. It was decided that she required a trigger thumb release, however, she requested the left carpal tunnel to be treated first, and this was released in May 2021. Since then Mr Berger noted her carpal tunnel symptoms had settled but the triggering in the right thumb persisted, and she had been scheduled for surgery in September 2021.[155]

1. Mr Berger reviewed the plaintiff on 27 October 2021.[156] He reported that she had undergone a routine endoscopic carpal tunnel release earlier in the year for her left side, and in July of 2020, had one for the right side and had recently had a trigger finger surgical release on her right thumb.
2. Mr Berger reported that the plaintiff complained of some sensory changes, however, recent nerve conduction tests showed very mild nerve problems with improvement since the pre-operation study had been performed, and which he said was not uncommon following successful carpal tunnel release. Mr Berger also recorded that the plaintiff said that she felt she was experiencing significant problems with her shoulder and neck, and might have some cervical spine problems.

1. Much of the defendant's evidence stemming from Dr Baglar concerned her other injuries and rejected WorkCover claim. The defendant tendered a WorkCover questionnaire completed by Dr Baglar on 6 September 2021,[157] and three reports dated 7 September 2021,[158] 6 May 2022,[159] and 14 November 2022.[160]

1. Dr Baglar described the plaintiff's injuries as impacting the "neck, bilateral shoulders, left hip and back pain due to physical nature of her vocational tasks along the 13 years".[161]
2. He wrote that the plaintiff's first consultation with the claimed injury had been on 29 September 2020.[162] The mechanism of injury was described as "repetitive lifting, carrying, pulling and pushing".[163] He said that the plaintiff's reported cause of the injury was consistent with how he would expect the injury to have arisen.
3. As to her capacity for employment, Dr Baglar ticked the box for "total incapacity for all duties", and noted on the questionnaire that the plaintiff's return to work timeframe was then "not predictable".[164] The plaintiff's restrictions were a maximum lifting weight of 5 kgs to waist level, with no weight lifting above shoulders, occasional ability to squat, no pushing or pulling, standing and/or walking for a duration of 15-20 minutes, along with sitting and an ability to drive for a duration of 20 minutes.
4. Dr Baglar recommended "physiotherapy, medications and swimming" as possibly assisting a return to normal or modified work duties.[165]

1. Dr Baglar's report was primarily in respect of the plaintiff's disputed claim for neck, bilateral shoulders, left hip and lower back. Dr Baglar wrote that the plaintiff had:

...been working as a catering assistant for her current employer for 13 years; her tasks involved repetitive bending, rotating, lifting carrying, pulling and pushing as well as repetitive wrist movements which is the cause of her other injury. She did not cite any specific incident or any accident at work but stated that she developed pain along the years because of the physical nature of her vocational tasks. Apparently, she presented at her previous GP for her pain in various parts of her body and had some imaging studies. I had the opportunity to review some of them. most of them.

Dilek's 25 May 2020 dated MRI of her cervical spine revealed early degenerative disc disease at her CS/6 and C6/7 levels along with broad based circumferential disc bulging and a small broad bases right posterior central disc protrusion. She had to have cortisone injection into her left hip in August 2020 for degenerative changes which were causing hip pain and interfering with her sleep and her walking/standing capacity.

Her right shoulder imaging studies revealed bursitis in her subacromial/subdeltoid bursa in October 2020. Again, the similar imaging studies revealed subacromial bursitis with painful bursa bunching in her left shoulder, around same time. Dilek also had small annular disc bulge at her LS/S1 level and stress response in her L3 and LS vertebrae.

Dilek's medical conditions as explained above, with their radiological findings are not severe enough requiring surgery; however, they are severe enough to interfere with her capacity for her pre-injury vocational tasks and, also with her capacity to perform certain household chores.

She stated that because of her continuing lower back pain, her neck pain and pain in her both shoulders making it difficult to fall asleep and, also waking her up frequently whenever she rolls in her bed. Because of waking up frequently, she is constantly tired as if she was never sleeping.

When Dilek sustained the injuries she claims, she was not one of my patients. The medical investigations and procedures she had revealed that she genuinely has multifocal physical problems. Considering the nature of her vocational tasks, as described by Dilek for me, I believe her current clinical condition should be acknowledged by the insurer and she should have the opportunity to treat/ improve her condition.

In her current state, Dilek is not fit for her pre-injury employment or any other employment with similar physical requirements.[166]

1. In Dr Baglar's second report to the defendant he again outlined the radiology relevant to the plaintiff's cervical spine and shoulder. He wrote:

The pathologies detected by the imaging studies as I listed above are not severe enough to require surgery and not amenable to surgery. However they are severe enough to interfere with her capacity with her pre-injury tasks and also with her ability to perform certain household chores. She also stated that she was having shoulder pain in whichever position she sleeps and with the slightest tossing and turning in bed, she wakes up with pain. Therefore her sleep patterns are frequently interrupted by her pain. This in turn made her tired, lethargic and very moody during the daytime.

Ms. Eymir's claim was accepted and her entitlements continued until she reached to the end of her second entitlement period for her weekly payments.

During my long involvement with Ms. Eymir's care, I happen to have a good idea about her physical state and limitations. I cannot say that Dilek has been paralyzed for the remainder of her life however considering her pre-injury tasks and her current state, I am confident to state that Dilek is not fit to return to her pre-injury employment or to any other employment with similar physical requirements.

She did not have any formal education/training and she has no experience in any non-physical forms of employment. Her English is very limited and she has nothing to offer to any prospective employer in an office setting.

In short, Dilek is not fit for any employment for which she could qualify because of her education, experience and training. She is not employable in a realistic labour market.[167]

1. Dr Baglar provided an update to the plaintiff's solicitors addressing both the plaintiff's bilateral wrist/hand condition and her cervical spine lower back and shoulders. He wrote:

Dilek is reporting that due to pain in her neck, her shoulders, in her hip and also in his lower back, she is unable to perform certain household chores and her sleep was interrupted frequently with pain whenever she turns and tosses in her bed. Since her sleep was interrupted frequently, she was tired throughout the following day.

In terms of her bilateral wrists/hands condition, she admits that her right hand is better than her pre-operation state. However, she complains that she still has some sensory changes in her right thumb and in her first three fingers. The fingers in her right hand feel swollen and she stated that she gets triggering of her right thumb intermittently.

In terms of Dilek's left hand, she claims that she is better after her post-release surgery on 24 May 2021. However, she has some ongoing sensory disturbance on her thumb and first three fingers.

Apart from the interruption of her sleep due to her pain in other body parts, pain in her right hand also wakes her from her sleep more than a couple times every night. Due to the state of her hands she cannot perform certain house chores and receives help from her adult daughter and she pays a professional for heavier household weekly cleaning. I described vocational tasks Dilek was performing while she was employed as a catering assistant by Programmed Integrated Workforce Limited. I believe her current state (in terms of both of her hands/wrists and also cervical and lumbosacral spine along with her bilateral shoulder and left hip conditions) is the result of her employment.

Due to Dilek's current clinical state, she is unable to perform certain household chores as well as vocational tasks required for her pre-injury employment. Therefore, she is not fit to return to her pre-injury employment or to any other employment with similar physical requirements. Dilek does not have any formal education and her English is at a very basic level. She does not have any credentials to be employed in a sedentary/office type of duties. I believe Dilek is not fit for any employment for which she could qualify because of her education, experience and training. Her condition is permanent and irreversible.[168]

1. Dr Barberis, provided a report to the defendant dated 20 January 2022.[169]
2. Dr Barberis reported that the plaintiff was recovering from post bilateral carpal tunnel release surgeries, with her left sided symptoms having significantly improved.[170] Dr Barberis reported right thenar and volar wrist discomfort and nocturnal paraesthesia of the plaintiff's thumb, index and middle finger which was affecting her sleep quality. However, she reported that the right trigger thumb symptoms had resolved post-surgery.
3. Dr Barberis thought that the plaintiff was unlikely to resume the fine dexterous tasks and repetitive forceful tasks associated with food preparation and work in a kitchen for the foreseeable future.[171] Dr Barberis considered that the plaintiff had capacity for alternative sedentary and/or light physical duties. She was considered to be unable to lift more than 500 gm or undertake repetitive or forceful activities with her hands.
4. Dr Barberis reported that the plaintiff was managing two hours of online training per week with her pre-injury employer, however, her computer skills are limited and she thought them unlikely to translate to meaningful work.[172] Dr Barberis thought that the plaintiff required redeployment to more suitable duties such as light process work, quality checks and light packing, and for her to gradually build up to pre-injury hours.
5. Dr Barberis noted that the plaintiff reported issues with her neck and shoulders. She mentioned Mr Berger's report dated 26 January 2021, which referenced successful surgical release and ongoing neck and shoulder pain.[173]
6. Dr Barberis reviewed the employment options referred to in a transferable skills analysis report dated 15 April 2021 and considered that the plaintiff was unsuitable to be a caterer and/or kitchenhand, given she was unable to use knives, stir food, use blenders or other kitchen utensils nor handle plates, pots and pans on a repetitive basis, nor was she thought suitable for work as a cashier, given her inadequate numeracy skills and that retraining would be required.[174] Dr Barberis thought the plaintiff was not suited to be an information attendant or telephone operator, as her English language skills would be unacceptable and retraining would be required. Dr Barberis, on the other hand considered that the plaintiff would, depending on the nature of the tasks, be suited for employment options such as product assembler process worker (light items), and retail assistant (light items).[175]
7. Addressing the plaintiff's hands and wrists, Dr Barberis thought that her current management is appropriate, and she should expect a reduction and withdrawal of hand therapy within the next eight weeks or so in favour of self-management.[176] Based on an objective physical assessment of the plaintiff, Dr Barberis said that her functional tolerances of sitting, standing, walking bending are unrestricted. The plaintiff's lifting, pushing and pulling tolerance was a 0.5 kg bilateral limit, and her driving capability was upwards of 10 kms.[177]

1. Dr Handrinos assessed the plaintiff at the defendant's request on 2 February 2022.[178]
2. On examination, he noted that the plaintiff's mood was depressed and she cried at times. He said that "Themes in her speech focused on her inability to work, inability to come to terms with the fact that she is not doing the work that she wants to do and a sense of hopelessness about her future".[179]
3. He thought that the plaintiff was suffering from an adjustment disorder with depressed mood, relevant to the claimed injury.[180]
4. Dr Handrinos reported that despite the plaintiff's complaints of fatigue and a lack of energy, she was not incapacitated for work in her pre injury duties and hours from a psychiatric perspective. He wrote that any impediment to work related to the plaintiff's pain and physical complaints was beyond the scope of his report.
5. He considered that the plaintiff has capacity for work in suitable employment from a psychiatric perspective. However, he noted problems with the plaintiff's English proficiency and her history of unskilled work.
6. He said that "in theory" from a psychiatric perspective, she could work in each of the suitable employment roles that he had been supplied as caterer/kitchen hand; product assembler (light items); process worker (light items); cashier; retail assistant (department stores, ie Kmart, Target, Big W); information attendant (customer facing, ie shopping centre); telephone operator (taxi's or hospital).

Associate Professor Evange Romas, Rheumatologist

1. Associate Professor Romas undertook a clinical examination of the plaintiff on 7 July 2022 and provided a report to the defendant of the same date.[181]
2. On examination, he found:

(a) the plaintiff's neck moved uniformly and had no signs of injury.

(b) the plaintiff's wrist joints moved normally, and there was no clinical indication of tenosynovitis or small joint synovitis.

(c) there was no demonstrable triggering, or no visible scarring, in her right thumb and the CMC, MP and IP joints moved normally.

(d) on testing her median nerve motor function in her hands, the plaintiff exhibited only pseudo-weakness with "giving way".[182] A/Prof Romas was satisfied that the plaintiff had no thenar atrophy or neurogenic weakness in either hand.

(e) the plaintiff's responses to median nerve sensory function were patchy, however, this was consistent with mild residual bilateral median nerve sensory deficits.

(f) no signs of cervical C6 or C7 radiculopathy, and no signs of complex regional pain syndrome in either upper extremity.

(g) no cutaneous signs of systemic sclerosis.

1. A/Prof Romas reported that the ultrasounds disclosed no significant abnormality of the wrist joints, or flexor tendons.
2. A/Prof Romas found no intrinsic bilateral wrist joint abnormality, no persisting right thumb constrictive tenosynovitis or dysfunction, but mild residual bilateral median nerve sensory deficits and minor surgical scarring.[183]
3. A/Prof Romas regarded the plaintiff's prognosis to be determined by psychological factors. He reported her injuries to be stable and that the plaintiff likely had bilateral carpal tunnel syndrome, however, carpal tunnel decompression had been satisfactory and the condition was now substantially resolved.
4. A/Prof Romas reported the plaintiff's surgical scarring was barely visible and did not impinge in the activities of her daily living.

1. A Medical Panel examined the plaintiff on 27 October and 8 November 2022, and provided an opinion and reasons dated 16 January 2023 in respect of the plaintiff's physical and psychiatric injuries.[184]

1. The plaintiff was assessed with a 3% whole person impairment resulting from the accepted carpal tunnel syndrome in both the plaintiff's left and right wrists/hands, right thumb, and surgical scarring injury. The plaintiff's degree of impairment was considered permanent.
2. Physically, the Panel concluded that the plaintiff suffers from residual right and left hand and wrist dysfunction, following surgically treated bilateral carpal tunnel syndrome and trigger right thumb, that was now resolved, relevant to the accepted right and left carpal tunnel syndrome, right thumb and surgical scarring injuries.[185]
3. The Panel acknowledged that the plaintiff gave a history of residual left hand symptoms, but on examination documented no permanent impairment attributable to the accepted injury to the left hand. The plaintiff also gave a history of residual right hand symptoms, but similarly on examination, the Panel documented no permanent impairment attributable to the accepted right hand (other than the right thumb).

1. Psychiatrically, the Panel found the plaintiff was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood, attributable to her accepted psychological injury. The Panel considered that her psychiatric condition had stabilised, but noted that she was considering taking antidepressants.
2. The Panel was of the opinion there was no psychiatric impairment from an unrelated injury or cause which is playing a part in the worker's current psychiatric impairment. It considered that the breakdown of the plaintiff's marriage appeared to be linked to her injuries and in that sense could not be considered an unrelated cause, however, it did not consider the plaintiff's current psychiatric symptoms or impairment to be related to the marriage breakdown.
3. The Panel agreed with A/Prof Damodaran's assessment dated 20 July 2022, that all of the plaintiff's psychiatric impairment, was secondary to the physical injury.
4. The Panel assessed the plaintiff with a 0% psychiatric impairment.[186]

1. Dr Reiter prepared a report for the defendant's solicitors dated 10 September 2024.[187] She was provided with the plaintiff's affidavit, the reports of Dr Barberis, A/Prof Romas, the Medical Panel opinion and the plaintiff's radiology.
2. Dr Reiter wrote:

Ms Eymir was diagnosed with bilateral carpal tunnel syndrome, right greater than left which was considered to be aggravated by her employment.

She had surgery to decompress the right median nerve and her right flexor pollicis longus tendonitis, which was causing her right trigger thumb, on 24 July 2020 by the surgeon, Mr Anthony Berger. This was then followed by surgery to decompress the median nerve in her left carpal tunnel in May 2021, also by Mr Anthony Berger, Surgeon.

Although, I note that Ms Eymir reports that she has ongoing pain and sensory changes in her left and right hand affecting her first three fingers and thumb, the panel found that she had patchy and inconsistent areas of reduced sensation with both pinprick and two-point discrimination that was not in an anatomical distribution, and therefore not within the median nerve distribution indicating that she had a good outcome from her carpal tunnel surgery in both hands. Her sensory complaints were not due to median nerve impingement in her carpal tunnels.

In addition, although Professor Romas found her to have mild sensory changes, and his impairment of 4% was not too dissimilar from the Medical Panel's impairment finding of 3%. However, he did find a full range of motion of both wrists as well as her right thumb, different to the range of motion noted by the Medical Panel.

Further to this, Professor Romas noted that her sleep "is now disturbed by worries rather than paraesthesias", which is not what is claimed by Ms Eymir in her affidavit.

In addition, the Medical Panel noted that her numbness was intermittent and it only occurs two to three times a week and last five to ten minutes, which in my opinion is extremely infrequent.

Therefore, it is my opinion that Ms Eymir has completely recovered from her bilateral carpal tunnel syndrome and her right trigger thumb.[188]

1. Dr Reiter considered that the plaintiff had recovered from her left and right carpel tunnel syndrome, as well as her right trigger thumb, with surgical decompression.
2. As to the radiology, Dr Reiter noted that the MRI of the right wrist of 12 October 2023 included that the median nerve was not significantly inflamed, in keeping the plaintiff having had a successful right carpal tunnel release/decompression. She considered that there was evidence of age-related changes in the plaintiff's wrist, which may be contributing to the wrist pain of which the plaintiff was complaining.
3. Addressing the cause of the plaintiff's bilateral carpal tunnel, Dr Reiter wrote:

In my opinion, I consider that her bilateral carpal tunnel syndrome was due to her age, female gender and her BMI of 29.9 kg/m2, top of the overweight range.

Although I note that her work was repetitive and fast, as was described, I would disagree with Dr Gary Davison, Occupational Physician's opinion expressed in his medical report dated 25 March 2020, that the work aggravated her condition as he considers that her work was repetitive and forceful.

I would not consider the work that she was doing to be forceful, so in this regard I would disagree with Dr Davison's opinion.

According to the literature, carpal tunnel occurs in those occupations that involve the prolonged use of vibrating tools: e.g. welders, boilermakers, grinders; as well as those occupations that involve repetitive tasks requiring repetitive wrist flexion/extension with forceful grip: e.g. slaughterhouse workers, meat boners.[189]

1. Dr Reiter noted that a number of occupational and non-occupational risk factors for median nerve entrapment at the wrist. Of the non-occupational risk factors, she emphasised the following:

(a) Age: Very strong evidence; risk increases with increasing age;

(b) BMI: Very strong evidence; high BMI increased risk;

(c) Gender: Very strong evidence; female.

1. Dr Reiter addressed the plaintiff's treatment, that included taking duloxetine and quetiapine for depression, and not for pain management. She wrote "in my opinion, Celebrex is for joint pains and not for carpal tunnel syndrome, from which she has recovered. I consider that she does not require any future treatment in regards to her bilateral carpal tunnel syndrome or her trigger thumb as these have resolved".[190]

1. Dr Le Leu provided a report to the defendant dated 2 August 2021 addressing the plaintiff's neck, shoulders and lower back.[191] Addressing the reported symptoms of each in turn and based on his examination he said as follows:

• She has pain over the left trapezius, like a cutting sensation and also pain over the back at the neck.
• The pain is worse with flexion, but it also appeared to be bad on extension on examination.
• Coughing or sneezing increases the pain in the neck.
• Sometimes she cannot rotate the neck.

• She has no pain there now.
• She has a better range of movement than on the left side, but on examination, it was not good.

• She has pain there right now.
• She pointed out the pain areas, the deltoid and trapezius. As a result, she cannot put on her bra or remove it.
• She has a decreased range of movement.

• She took some tablets this morning, so has no pain at present but expects to have some later on.
• The pain is mainly on the left side, going into the left buttock and going down the leg all the way to the heel.
• It seems like her hip pain is coming from the back, not the hip (which is probably correct).
• Bowel and bladder work normally.
• When she sits for too long, she cannot get up, and she cannot sit on the floor.
• Coughing or sneezing increase the pain.[192]

1. Dr Le Leu diagnosed the plaintiff with longstanding degenerative disease in several areas. He considered that her neck, back and shoulder disorders were more probably than not on a degenerative basis.
2. Regarding the extent to which the plaintiff's employment contributed to an aggravation, acceleration or exacerbation of a pre-existing condition, Dr Le Leu wrote, "this is imponderable, but I suspect her conditions would have come on anyway irrespective of work. The symptoms in the neck and back came on a long time ago, but she did very little about them then and certainly made no claim".[193]
3. Dr Le Leu did not consider that the plaintiff had a capacity for pre injury duties. He thought that she could perform work within the following restrictions:
   • No lifting, carrying, pushing or pulling greater than 2.5 kg (or horizontal force equivalent).
   • No repetitive or sustained back bending or twisting.
   • No repetitive or sustained neck bending or twisting.
   • No work with either hand or arm at or above mid-breast level.
   • No work on ladders or at heights.[194]
4. Dr Le Leu reported that the duration of the restrictions was probably permanent and he did not consider that there was anything that could help the plaintiff achieve a full return to work.

1. The plaintiff testified with the assistance of an interpreter. Some of the cross-examination identified a poor recall by the plaintiff on matters reported by various practitioners to have been volunteered by the plaintiff on examination.
2. The plaintiff could not remember if A/Prof McCombe, whom she saw on two occasions in October 2023, following further nerve conduction studies and an MRI and ultrasound of her right elbow, had identified evidence of tennis elbow.
3. Having seen the plaintiff on 19 February 2024 A/Prof McCombe said the plaintiff had been referred for repeat nerve conduction studies as part of a further investigation of carpal tunnel symptoms, but the plaintiff could not recall if the studies were subsequently undertaken.
4. The plaintiff testified to wearing a soft brace around her right hand and wrist. She said she had worn it since her thumb operation in September 2021. She said that sometimes she wears the brace of a day, but not every day and there are occasions when she doesn't use it, for example, when her wrist and hand are not bothering her, but she also said that her wrist and hand bothers her all the time but she sometimes forgets to put it on.
5. The plaintiff said the benefit of the brace is to tighten her hand and provide warmth.
6. The plaintiff said that she generally wears the soft brace when shopping because that task is painful for her right hand and wrist, whereas at home, she doesn't wear it too much, but, if she leaves the house with her grandchildren, she will generally wear it.
7. The plaintiff was questioned about the state of her back, neck and hip in light of having deposed that they have been long standing problems and that her back, neck and hip had been painful at work and continue to cause her problems. The plaintiff deposed that she had seen her doctor about them but had not come to surgery or had significant treatment. The plaintiff had deposed to problems with her shoulders and of being referred to a rheumatologist. She told Ms Cameron that she attended a rheumatologist once, but was unable to remember who it was.
8. The plaintiff agreed with Ms Cameron that her back, neck, left hip and both shoulders have continued to present problems for her and this had been the case since about 2021, and that in July 2021, she submitted a workers' compensation claim for injury to them, but it was rejected.
9. The plaintiff said that she continues to take Panadol Osteo. When Ms Cameron suggested to her, that this was taken to address her low back pain, the plaintiff said it was for her hand pain. She said that initially she took four to six tablets for her back, but currently takes two tablets for her hands. She said two tablets is sufficient to address her back, in conjunction with her physiotherapy and hydrotherapy. She said she has not experienced low back pain for perhaps close to two years.
10. The plaintiff said that she still suffers neck and shoulder pain on occasions. She said that she has not suffered hip pain for more than a year.
11. Ms Cameron asked the plaintiff why she deposed in her 11 September 2024 affidavit that "I continue to suffer from some neck, back and shoulder pain, in particular for which I have physiotherapy".[195] The plaintiff said:

Of course sometimes it does cause some pain. Like, I've worked for many years in this place. It does cause some pain, yes.

So when you gave evidence before that you haven't had back pain for close to two years, that wasn't right, was it?---In saying that, I mean like it was not very, very painful. Like, it would not affect me working. That's the type of pain.[196]

1. When asked by Ms Cameron to cast her mind back over the last four years and to say if she believed that her neck, shoulder, back and hip pain had remained largely the same the plaintiff said, "it had reduced".[197]
2. Ms Cameron directed the plaintiff to a report from Dr Le Leu, who examined her on 29 July 2021 following the lodgement of her WorkCover claim.[198] Addressing her neck, he said the plaintiff reported that she experienced pain over the left trapezius that was like a cutting sensation, and also pain in the back of the neck. The plaintiff agreed with that account but said that physiotherapy and swimming exercises had resulted in a reduction of pain of about 50%. She also said that being at home and not working had coincided with a reduction in pain. Dr Le Leu's examination occurred approximately 16 months after the plaintiff ceased work in about March 2020.
3. Ms Cameron put to the plaintiff that Dr Le Leu had also recorded that her back pain was worse with flexion and appeared to be bad on extension, and that coughing or sneezing increased the pain in her neck, and that sometimes she was unable to rotate her neck. The plaintiff said she could not remember if this was the case at that time.
4. Addressing the plaintiff's right shoulder, Dr Le Leu said the plaintiff had no pain, but that the movement of her right shoulder was not good, but the plaintiff could not remember if that had been the case.
5. As to her left shoulder, Dr Le Leu referred to a decreased range of motion, with the plaintiff being unable to put on and take off her bra. However, the plaintiff said that currently, and despite some pain, it "doesn't stop me from getting dressed it that way".[199] She said that her hands are more of the problem when getting dressed, and not her shoulders.
6. Addressing her low back, Ms Cameron put to the plaintiff that Dr Le Leu reported that she told him she had taken some tablets on the morning of the examination and was not in pain, although she expected to be as the day wore on. Dr Le Leu added that the plaintiff's pain was mainly in the left side of her back, extending into the left buttock and down the leg to the heel, but the plaintiff could not remember if this is what she told Dr Le Leu.
7. Dr Le Leu recorded that if the plaintiff sits for too long she finds herself unable to get up, but the plaintiff could not remember if that is what she told him.
8. The plaintiff could not remember if she told Dr Le Leu that she was taking Celebrex, Panadol Osteo and Neurofen.
9. The plaintiff was cross-examined about Dr Le Leu's recording of some of her limitations. According to him, the plaintiff said that when she felt well enough, she only drove short distances but when she experienced a stiff neck she could not drive at all. The plaintiff could not remember if this is what she said but, she denied that if her neck is stiff she is unable to drive and that the only reason precluding her driving is the condition of her hands.
10. As to other difficulties related by Dr Le Leu attributable to back and hip pain, the plaintiff said she could not remember what she said to him three years ago.
11. When asked about a vacuum cleaner purchased for her use by her daughter, the plaintiff said it was still a heavy thing for her to use.
12. The plaintiff was taken to Dr Baglar's report dated 14 November 2022 that came about as part of her WorkCover claim for her back, neck, shoulder and hip injuries.[200] Dr Baglar mentioned that although not warranting surgery, the condition of her back, neck, shoulder and hip were sufficiently severe to interfere with her capacity for her pre injury vocational tasks, and in undertaking certain household chores. The plaintiff agreed that this was the case at the time of Dr Baglar's report.
13. Dr Baglar also wrote that the plaintiff had told him that because of her continuing lower back pain, neck pain and pain in both shoulders, it made it difficult for her to fall asleep and she woke frequently whenever she rolled in bed, and that as a result of her disrupted sleep, she was frequently tired. The plaintiff said that the problem with her hands and numbness was causing her "more problems waking me up at night".[201] The plaintiff agreed with Ms Cameron that she experienced problems with her back, neck and shoulders throughout 2021 and 2022.[202] The plaintiff also accepted that if a matter had been recorded by Dr Baglar it was likely because she had told him.[203]
14. The plaintiff agreed that in 2022 she had physiotherapy at Alpha Health Physiotherapy for her back, neck shoulders and hip, and in 2023 and 2024, she had physiotherapy for her back. A number of attendances were put to the plaintiff by Ms Cameron. For example, On 21 July 2023, the plaintiff attended with neck, low back and bilateral shoulder pain. It was recorded that she was finding it difficult to sleep on her right hip.[204] The following week the plaintiff attended with neck, low back and bilateral shoulder pain.[205] On 11 August 2023, it was recorded that the plaintiff had slept awkwardly on her pillow the previous night and presented with a very stiff neck and shoulders.[206] On 18 August 2023, the plaintiff's physiotherapist recorded that she presented with neck, low back and bilateral shoulder pain. She was experiencing cervicogenic headaches that she described as 7/10 and that lasted from 30 minutes to a few hours at a time. The plaintiff could not remember.[207] On 25 August 2023, it was recorded that the plaintiff presented with neck, low back and bilateral shoulder pain but was feeling slightly better following her previous physiotherapy session and treatment.[208]
15. To the proposition put to her by Ms Cameron that during the period of time embraced by the attendances is period of time she was experiencing real problems with her neck, back, shoulders the plaintiff acknowledged she had pain. To the proposition that these problems were causing sleeping and restricting her in her daily life the plaintiff said, "no, it didn't limit me. I couldn't do things because of my hands".[209]
16. A medical certificate from Dr Baglar certified the plaintiff unfit for work and study from April to July 2023, and it recorded her primary condition as: "bilateral shoulder, bilateral hip and lower back strain" and that he was unable to bend, squat or kneel, push, pull, carry and lift.[210] Dr Baglar diagnosed a secondary condition as reactive depression and adjustment disorder caused by neck, shoulder, hip and back pains but to which the plaintiff said that was her depression commenced because she was unable to work.[211]
17. The plaintiff was questioned about a further certificate from Dr Baglar,[212] certifying her unfit for work until October 2023 because of her neck, shoulder hip and back. When it was suggested by Ms Cameron that the problems referred to in the medical certificates continue to afflict her, the plaintiff said, "No. I much better now. It's not the same".[213] The plaintiff said that although she was not fully recovered she was "much better".[214] She reiterated that it was swimming and physiotherapy that had resulted in her improvement.
18. The plaintiff's first surgical procedure of a right carpal tunnel release occurred in July 2020 and she said that following that surgery although it seemed as if there was improvement, her thumb was "disabled".[215] A third surgery occurred in September 2021 for her thumb.
19. To the suggestion that following the two surgeries her carpal tunnel syndrome symptoms had settled, the plaintiff said it seemed like it was getting better "but then the numbness continued and I called my doctor there was no strength in my hands".[216] Consequently the plaintiff underwent surgery to correct the trigger thumb problem which she agreed rectified it, and it was now better.[217]
20. The plaintiff was asked about her attendance on A/Prof Romas in July 2022, who noted that she had paraesthesia in some of the digits of her right hand, and experienced numbness in some of the fingers of her right hand, but no thumb triggering and with some soreness through the volar wrist, below the thumb.[218] The plaintiff agreed this was the case. Asked if these are symptoms she continues to suffer, the plaintiff said that she experiences pain, including in and underneath her wrist, and in the thumb. She has pain around the thumb and in the palm of the hand, and into the wrist and below the thumb. She said that elsewhere in the hand she suffers numbness and a lack of strength.
21. Ms Cameron suggested to the plaintiff that as far as her left hand was concerned, she told A/Prof Romas that she experienced numbness in the digits on the fingers, the radial digits, and soreness of the fleshy part of the thumb. The plaintiff said this remains the case.
22. Ms Cameron directed the plaintiff to an examination by a Medical Panel in October 2022. It recorded the plaintiff saying that her hands were always cold and swollen, with the numbness in her hands being intermittent and occurring two to three times a week, and lasting five to ten minutes.[219] The plaintiff said this remained the position. She said her pain is constant, but the numbness occurs two or three times "like it goes and comes".[220] On examination, however, the Panel recorded that her hands had a normal colour and temperature and without swelling.
23. The plaintiff agreed with comment contained in Dr Baglar's report of 14 November 2022,[221] that her right hand was better than before the operation and she also agreed that her left hand is better than before the surgery.
24. The plaintiff said she has tried to continue gardening and looking after her orchids but because of the condition of her hands, she is unable to lift and attend to certain tasks in the garden. To Ms Cameron's suggestion that regardless of the state of her hands, her gardening would be similarly restricted because of the condition of her back and neck shoulders, the plaintiff maintained it was her hands that are stopping her from gardening and not her back and neck and shoulders.
25. The plaintiff accepted that due to her pain and her inability to push, she could not mow the lawn,[222] but as to being able to undertake other tasks around the house such as vacuuming, mopping, cleaning the bathroom and changing bedsheets, she said it was her hands and not the other conditions that prevent her doing so. She said that on a 'normal day' she could do it "yes, but if I suddenly had a lot of pain then yes, I can't do it".[223]
26. The plaintiff said that if not for the state of her hands as opposed to her back, neck and shoulders she would not be prevented from cooking traditional Turkish meals. She disagreed with Ms Cameron that because of her back, neck and shoulders she wouldn't be able to stand in the kitchen for a long time whilst cooking and performing tasks such as lifting heavy pots and bending over the oven repeatedly. The plaintiff disagreed, and said that if not for her hands she would try to perform those cooking tasks.[224]
27. As to washing her hair and getting dressed, the plaintiff said that her back, neck and shoulder pain do not stop her from doing so, although they might slow her down.

1. In re-examination, the plaintiff said that her low back pain has not affected her that much. She explained that she cannot do heavy work because of her back, but she believed that she could perform activities associated with daily living, if not for her hands.[225]
2. The plaintiff denied that her back, neck or shoulder pain currently interferes with her sleep and she reiterated that she wakes because of numbness in her hands.[226]
3. The plaintiff said that normally she does not suffer a lot of pain in her back, but if she is standing a lot she might get some pain.[227]
4. Addressing the pain experienced by her in her right and left hands, she said that she suffers pins and needles and numbness, with the result that she is unable to hold things. She said her wrist throbs with a lot of pain.[228]
5. Asked about the difficulty in attending to her orchids, the plaintiff said that she has difficulty moving them around, or lifting them at home. She said that she is unable to cut roses, and cannot use a lawnmower to clean the garden.

1. Ms Cameron submitted that the plaintiff lacked credibility, was often evasive and frequently provided non-responsive answers to questions posed of her. Ms Cameron submitted the plaintiff's evidence was unreliable, and at worst it was dishonest, and that the plaintiff often enough gave self-serving answers for the purpose of amplifying the severity of her compensable injury.[229]
2. I suggested to Ms Cameron in the course of her final address, that I did not consider it was fair to make a submission of dishonesty and the plaintiff had not been directly challenged about her honesty. Ms Cameron moderated her submission to that of the plaintiff having exaggerated the extent of her pain and discomfort in her hands and wrists, whilst downplaying the extent of ongoing pain and interference caused by her neck, back and shoulders.
3. In developing the submission that the plaintiff gave exaggerated and unreliable evidence, Ms Cameron referred to her further affidavit dated 11 September 2024, in which the plaintiff said she had an ultrasound of her right wrist in February 2024,[230] but which she corrected in her evidence in chief to be to her right elbow. As well in the same affidavit, the plaintiff deposed that she had further nerve conduction studies undertaken in 2024, however, Ms Cameron submitted that the evidence did not support that assertion.[231]
4. Ms Cameron referred to the plaintiff's evidence of the use of a soft wrist brace, as a further example of her unreliability.[232] The plaintiff deposed at paragraph 11 of her first affidavit that she used a hard brace when she sleeps, and usually wore a soft brace during the day.
5. Ms Cameron submitted there were variations in the plaintiff's evidence that she had used a brace all the time since the September 2021 operation, and her subsequent evidence that she did not use it when her wrist and hand did not bother her despite her evidence including that it bothered her all the time but that sometimes she forgot to put it on.[233]
6. Ms Cameron submitted that the evidence identifying who had recommended the use of the soft brace was also unreliable. In re-examination the plaintiff's evidence was that the recommendation was made by either A/Prof McCombe or Mr Berger.[234] Ms Cameron submitted that there is no reference from any doctor to the use of a soft wrist brace. Ms Cameron argued that if the plaintiff had attended a doctor wearing the brace, one might reasonably assume that the fact of the same would have found its way into examination notes but it had not.
7. Ms Cameron submitted that it would be open to infer that the plaintiff wore the brace in Court in an effort to accentuate the extent of her symptoms.
8. Ms Cameron submitted that the principal focus of the defendant's submissions was the unreliability and inconsistencies in the plaintiff's evidence concerning the effect and consequences of her other injuries, most notably, her back and shoulder pain. By comparing the plaintiff's oral evidence with the accounts of various medical reporters about the ongoing existence of pain from her back and shoulders, Ms Cameron submitted that the plaintiff's evidence was evasive and unreliable.
9. Ms Cameron submitted that although there is no dispute that the plaintiff suffered bilateral carpal tunnel syndrome and right trigger thumb, the plaintiff had undergone surgery for those conditions and it was unclear why she continues to present with her symptoms and the claimed consequences.
10. Ms Cameron referred to the opinion of Dr Damodaran expressed in his report of 20 July 2022,[235] who diagnosed the plaintiff as suffering from a chronic pain disorder associated with general medical condition in addition to an adjustment disorder, mixed anxiety and depressed mood.
11. Ms Cameron relied on the report by Dr Barberis from 20 January 2022,[236] who referred to the plaintiff exhibiting exaggerated pain behaviour with catastrophising and a general demeanour of helplessness, and who suggested a functional overlay or psychiatric overlay to her symptoms.
12. Ms Cameron addressed the question of the extent of ongoing carpal tunnel problem and submitted that the most appropriate reporter is A/Prof McCombe, the plaintiff's treating hand surgeon.
13. Ms Cameron referred to A/Prof Romas who examined the plaintiff on 7 July 2022,[237] and expressed the opinion that her carpal tunnel decompression was satisfactory and that the condition had resolved.
14. Ms Cameron referred to Dr Reiter who provided a desktop report dated 10 September 2024. She was provided with the plaintiff's affidavit of September 2023, the report Dr Barberis and A/Prof Romas, the Medical Panel opinion, the complete record of the Coburg Family Medical Centre and radiology undertaken to that point in time. She said that the plaintiff's bilateral carpal tunnel syndrome had resolved, as had the plaintiff's right trigger thumb. Ms Cameron submitted that there appeared to be no dispute that the trigger thumb was repaired by the surgery, a conclusion I was urged to accept, and that was consistent with the plaintiff's evidence in cross examination.
15. Ms Cameron referred to A/Prof McCombe's report dated 19 February 2024,[238] who when addressing the course of the plaintiff's ongoing symptoms, said he was unclear why and had requested repeat nerve conduction studies in his correspondence to Dr Freilich in April 2024, but which had not been undertaken.
16. Ms Cameron referred to A/Prof McCombe's report dated 7 August 2024,[239] when he expressed the opinion that the previous nerve conduction studies had shown improvement consistent with an effective release with her surgery, but that on the basis of the plaintiff's recurrent symptoms, it was reasonable to investigate further with an MRI scan. Given the plaintiff's right sided symptoms were the more significant, he recommended an MRI scan should occur on the right side. A/Prof McCombe described the MRI scan of October 2023 as showing that the median nerve was thickened within the carpal tunnel, but there was no significant change in the intensity of the soft tissue signal in the nerve and some scarring of the site of release, and it was unclear if this was causing "recurrent compression".[240] He said he discussed the findings of the October 2023 MRI scan with the plaintiff in February 2024, when she also reported to him some other symptoms. He referred her for an ultrasound of the elbow for possible elucidation but it did not reveal any abnormality of the median nerve. There was, however, some evidence of lateral epicondylitis (tennis elbow). Then having referred the plaintiff for repeat nerve conduction studies to determine if the improvement within the parameters of nerve function had continued, or there had been further deterioration, they had not been performed.
17. Addressing the ongoing contribution to the plaintiff of her back, neck, shoulder and hip pain, Ms Camereon submitted that the plaintiff fell afoul of the requirement set down in Peak Engineering & Anor v McKenzie ("Peak Engineering"),[241] in the sense that she had not enabled findings to be made as to what consequences affect her from the claimed impairment by comparison to her other conditions.
18. Ms Cameron submitted that Dr Weissman's report of 4 July 2024,[242] was unhelpful, as he only recorded a history of left knee arthroscopy and no ongoing pain or discomfort in her left knee, and of the plaintiff having experienced some stomach problems in the past, and of having undergone an appendectomy sometime in the past.
19. Ms Cameron submitted that Mr Doig obtained an incomplete and insufficient history recorded in his report dated 8 July 2024,[243] of a past history of knee injuries and that the plaintiff had denied any significant problems with her arms prior to the gradual onset in 2014. Moreover, he recorded that the plaintiff was unable to say if she had any other problems of a medical nature in the past but she gave an account of some right shoulder problems and occasionally some problems with the left shoulder at the date of examination.
20. Ms Cameron submitted that Mr Doig's report had not disentangled or disaggregated consequences of the carpal tunnel from her shoulders, and made no accounting of them because he was unaware of them and, moreover, his report combined carpal tunnel and the plaintiff's shoulders and he provided an opinion about the effect of the injuries on the plaintiff's recreational, domestic and social activities.[244]
21. Ms Cameron submitted that the plaintiff's account is questionable that Panadol Osteo that had been recommended in January 2020 by her orthopaedic surgeon for back pain is also efficacious for her hands.
22. Ms Cameron submitted that it would be open to find that the plaintiff had exaggerated her evidence of her hands being cold and swollen all the time in light of the Medical Panel on examination not having found the same.
23. As to a psychiatric or psychological injury from which the plaintiff may be labouring, Ms Cameron referred to the plaintiff's evidence that her depression commenced because she was unable to work, and not because of pain.[245] In the wake of the Covid disruption to the airline industry, the plaintiff was on modified duties before and when she ceased work in March 2020.
24. Ms Cameron submitted that the plaintiff's psychological condition was not, in any event, severe. Although the plaintiff takes medication and sees a psychologist and a psychiatrist, she has not been an inpatient for any treatment, and by and large, the diagnosis is better understood as an adjustment disorder. Despite the plaintiff's treating psychiatrist diagnosing a major depressive disorder, Dr Weissman described the plaintiff as having a moderate amount of psychiatrically based functional impairment. In any event, as to the plaintiff's prognosis for any relevant condition, her treating psychiatrist is of the opinion that she can improve.

1. Ms Frederico submitted that if the application made under paragraph (a) of the definition of serious injury for a bilateral impairment of the hands is impermissible as a matter of law, then the plaintiff's claim is pursued alternatively by reliance on either the impairment to one or other of the hands.
2. Ms Frederico submitted I should regard the plaintiff as woman of credit, who gave her evidence in an honest and straightforward manner. Ms Frederico referred to a series of concessions against interest made by plaintiff under cross examination, that should buttress a favourable finding of the plaintiff's overall credit.
3. Ms Frederico submitted that I could have regard to the plaintiff's very strong work history, both prior to commencing with the defendant and when working for it, noting that she had been employed since she arrived in Australia in 1988, taking only 11 to 12 months off when she had her two children.[246]
4. Ms Frederico submitted the plaintiff was ready, willing and able to work at all times and losing her job was a great loss, which was plainly reflected in her evidence.
5. As to the use of a brace, Ms Fredrico submitted that the plaintiff's wearing of it was explained because her hands feels cold. The plaintiff told the Medical Panel that she wears the gloves at night to keep her hands and the scars warm. Ms Frederico submitted that the plaintiff's affidavit was that she usually wears a glove, and there had been many references to her feeling the cold in her hands.
6. Mr Frederico pointed out that the plaintiff agreed in cross-examination that her physiotherapy treatment had have borne witness to improvements in her back, neck, shoulders and hips, however, Ms Frederico observed that the plaintiff was only taken to a selection of the physiotherapy records. Ms Frederico submitted that the records for 2024, identified a reduced treatment regime for the conditions of the plaintiff's neck, back and shoulders but an enhanced focus on the bilateral forearms and carpal tunnel injury, with the most recent entry of 4 September 2024 referring to "Increased pain in bilateral forearms. Pain medication is not helping".[247] Ms Frederico submitted that despite the absence of a report from the plaintiff's physiotherapist, the clinical notes are a primary and reliable source of evidence.
7. Ms Frederico referred to the defendant's admission that 45 hours of surveillance of the plaintiff was commissioned and with 7 minutes of footage obtained in January and September 2024, but with none of it being relied on by the defendant as relevant to contradicting the plaintiff's evidence.
8. Ms Frederico addressed the nature of the plaintiff's injury. She referred to Mr Doig's finding of clear evidence of residual carpal tunnel.[248] Dr Shehata, the plaintiff's treating GP, on whom the plaintiff regularly attends, commented on the nerve conduction study dated 1 August 2023.[249] The plaintiff's treating hand surgeon, A/Prof McCombe said of the plaintiff that "she has developed recurrent symptoms of carpal tunnel syndrome, particularly on the right side, with hand numbness and pain".[250] He noted how MRI showed some slight thickening of the median nerve and possible recurrent carpal tunnel syndrome, and which he said was supported by the plaintiff's symptoms, as well as her nerve conduction studies the previous year.[251]
9. Addressing the plaintiff's reliance on a paragraph (c) injury, Ms Frederico submitted that Ms Sumertas,[252] the plaintiff's treating psychologist, and Dr Duraiswamy,[253] the plaintiff's treating psychiatrist, diagnosed a major depressive disorder. Ms Frederico submitted that although Dr Weissman found a moderate chronic adjustment disorder, that in his reasoning to diagnosis he said that "in terms of symptoms alone, she most probably satisfies the diagnostic criteria for a chronic major depressive disorder",[254] however, he went on to say that he preferred the diagnosis of a chronic adjustment disorder, "because she has found it very difficult to adjust, adapt, cope with and come to terms with her work-related injuries".[255]
10. Dr Weissman psychiatric prognosis "for the future is moderately uncertain and guarded and probably relatively poor, negative and unfavourable".[256] Dr Weissman recorded the plaintiff's symptoms to include feeling, hopeless, worthless and useless. Ms Frederico noted that the plaintiff's marriage had collapsed, and referred to that in terms of her not being able to cope any more in difficult circumstances, and the loss of her work.
11. Dr Duraiswamy described "significant decline in motivation, ability to engage...and deterioration in self-care".[257] He noted that the plaintiff had psychotic symptoms, was seeing shadows, hearing noises and experiencing auditory hallucinations and was a reason for the increase in duloxetine.[258]
12. Ms Sumertas provided a significant and detailed description of the plaintiff's symptoms that included moodiness, loss of pleasure, increased weight, some insomnia, fatigue, feelings of worthlessness and guilt, and depleted concentration. Ms Sumertas reported that there had been some suicidal ideation.[259]
13. Accordingly, Ms Frederico submitted that overall the plaintiff's application under paragraph (c) meets the "severe" test. Ms Frederico submitted that the plaintiff is taking a significant amount of medication, in particular 120 milligrams of duloxetine; she has been diagnosed with major depressive disorder; and has been receiving consistent psychological treatment for at least the last three years.
14. In addressing permanence, Ms Frederico submitted that the carpal tunnel has required three surgeries, and that the plaintiff has developed recurrent carpal tunnel and has reached a point where she does not want to pursue further surgery to her right wrist and that her attitude should be regarded as reasonable in all the circumstances given the results to date from previous surgery.[260] Ms Frederico also relied on the prognoses of Mr Doig and Dr Duraiswamy.
15. Ms Frederico observed that Professor Damodaran found a 14% permanent impairment,[261] with the Medical Panel assessing a 15% permanent impairment.[262] Dr Duraiswamy, although expressing some optimism, said that complete resolution of the plaintiff's symptoms were likely limited by reason of her ongoing pain, her inability to get back to the workforce, and the loss of her working role.[263]
16. As to the defendant's argument that the plaintiff had not discharged the obligation to disaggregate the compensable injuries from her other conditions, Ms Frederico relied on the plaintiff continuing to undergo physiotherapy for her forearms and wrists, this being a state of affairs consistent with her oral evidence of their ongoing troubling presentation. Ms Frederico submitted that by contrast, recent attendance records are indicative that the treatment the plaintiff has received for her neck, shoulders and lower back has been intermittent, and the plaintiff is predominately receiving treatment for her upper limbs. Ms Frederico submitted that Dr Baglar's opinion is somewhat outdated,[264] and instead, she pressed reliance on the evidence of Dr Shehata, that the plaintiff's incapacity is due to her carpal tunnel injury, as well as the certificates of capacity he has issued.[265] Ms Frederico submitted that the Certificate of Capacity dated 18 June 2024 referred to bilateral carpal tunnel syndrome,[266] and with the second Centrelink Certificate of the same date,[267] referring to bilateral carpal tunnel syndrome and depression, and of the plaintiff having no work capacity.
17. Ms Frederico submitted that the evidence revealed the plaintiff's genuine love of her work, and of its loss having been of very great significance and that although the plaintiff's neck, back and shoulders caused her problems, they were not the reason that put her off work.[268] Ms Frederico submitted that the plaintiff's evidence should be accepted about the condition of her shoulders, neck and back as being comparatively minor compared to her wrist and forearm injuries. Ms Frederico observed that the plaintiff had stood for a number of hours while giving her evidence and without complaint of back pain.
18. Ms Frederico submitted that the plaintiff testified about how the other conditions affect her activities, such as dressing, but despite experiencing pain in her shoulders, she emphasised that it is her hands which inhibit her ability to dress.
19. Ms Frederico relied on the plaintiff's evidence of gardening, housework and cooking, and of it being her hands which prevent her from going about these activities as she previously did.[269]
20. Ms Frederico submitted that because the plaintiff is right hand dominant, there are innumerable activities which she cannot perform because of the carpal tunnel as it particularly affects her right hand.

1. Turning now to consider what injuries were caused by the plaintiff's work, it is accepted by the defendant that the plaintiff developed bilateral carpal tunnel syndrome which was confirmed on ultrasound and by nerve conduction studies. The work activities the plaintiff deposed to in detail, as well as medical opinions, support the mechanism of injury and its diagnosis. I accept that the plaintiff has symptomatic carpal tunnel syndrome.
2. I am satisfied that the plaintiff has made out her claim for a certificate for pain and suffering under paragraph (a) of the definition of serious injury. My reasons for reaching this conclusion follows.
3. First, I will address the plaintiff's credit, as it was a matter of significance from the defendant's perspective. As President Maxwell said in Haden Engineering Pty Ltd v McKinnon,[270] the weight to be attached to the plaintiff's account of the pain experience will, of course, depend on assessment of the plaintiff's credibility. Contrary to the defendant's submission, I am not satisfied that the plaintiff's credit was impugned. I accept that there was demonstrated occasions in which the plaintiff's recall was found wanting, but certainly not to such a degree as to have caused me to doubt the plaintiff's efforts in giving her evidence as best she could, or that the absence of recall, undermined the plaintiff's evidence of the pre-eminent significance of the pain and suffering consequences caused by the conditions of her hands and forearms and most notably her right hand.
4. I am not persuaded that the plaintiff gave disparate and, therefore, troubling evidence about the wearing of a brace. The plaintiff's evidence was not that she always wears it. Her explanation that she sometimes forgets to wear it, despite her evidence that she always needed it, is not irreconcilable. The plaintiff gave evidence with the assistance of an interpreter and this is also a factor to put into the overall mix in assessing the weight to be given any discordance in her evidence on contested matters of fact.
5. I am next required to assess if the plaintiff has complied with her obligation to enable an assessment to be made of the pain and suffering consequences attributable to the right or left hands from carpal tunnel as opposed to the pain and suffering consequences due to the state of her back, hip, shoulders and neck. I am amply satisfied that she has done so. Not infrequently, a plaintiff will present to Court with unrelated health conditions. That is not a bar to a successful claim. However, such a state of affairs can prove problematic if the other condition or conditions themselves inflict on a plaintiff the same pain and suffering consequences as do an impairment to a different body function on which reliance is placed under a paragraph (a) claim.
6. The substance of the challenge made to the plaintiff can be seen in this extract from the defendant's cross-examination:[271]

"So you admit at least that there would be times that those pains, the back, neck and shoulder, would stop you from doing those heavier household chores?---Yes.

Cooking traditional Turkish meals, standing in the kitchen for a long time, lifting heavy pots, bending over to the oven repeatedly, those are things that you wouldn't be able to do because of your back, neck and shoulders.

MS CAMERON: Without the hands?---No, it won't affect me. I would try to do them.

Similarly, getting dressed. You have said you have difficulty washing your hair, difficulty getting dressed, you wear larger clothes to make them easier to

put on. Those are things that are impacted by back, neck and shoulder pain, aren't they?

MS CAMERON: Yes?---It won't stop me but it might slow me to do some of the things.

The real situation is that you have a multitude of problems and pain throughout your body, don't you?---Yes, I do have pains.

All of those things combined impact your life on a daily

And you take pain medication for all of those problems?---I take my painkillers mainly for the throbbing, the pain in my hands, because they are more severe. Like, the other parts aren't severe".

1. I have taken into account that the plaintiff's treatment for the unrelated conditions is comparatively infrequent and has been for some time, in contrast to the treatment that is required and continues to be undertaken by her for her carpal condition. I accept the plaintiff's evidence that the unrelated conditions are a comparatively less and infrequent break on her activities as opposed to her carpal syndrome. The records of attendance and notes from Alpha Health Physiotherapy are testament to the increased trajectory throughout 2024, but particularly after and since about March 2024, of the accepted work claim. Notes in June, July and August are replete with accounts of bilateral pain in the forearms and reaching into the hands. For example, on 2 August 2024 it is recorded that the plaintiff presented with "pain in bilat forearms and pain radiating into hands. having difficulty sleeping at night". On 12 July 2024, it was noted that the plaintiff had "increase pain in bilat forearms. pain meds not helping". I consider the recent attendances are consistent with the plaintiff's evidence of her symptoms, and with a number of the medical opinions, and is more probative than the older opinions by Dr Baglar.
2. In August 2024, A/Prof McCombe said of the plaintiff:

"She has developed recurrent symptoms of carpal tunnel syndrome, particularly on the right side, with hand numbness and pain".[272]

1. A/Prof McCombe also noted that MRI showed that there was some slight thickening of the median nerve and possible recurrent carpal tunnel syndrome which he said was supported by the plaintiff's symptoms and nerve conduction studies from 2022.
2. I find that the plaintiff has disaggregated the consequences of her the hands and wrists from the other conditions and that it is her work related injuries that currently and will likely into the future be the reason for the limitations and pain and suffering about which she complains. I find, therefore that she has discharged the requirement expressed in Peak Engineering.[273]
3. I am not persuaded by the defendant's arguments that the plaintiff has failed to disentangle the psychological or psychiatric consequences of her mental or behavioural condition in any assessment required under paragraph (a). As the Court of Appeal in Noori v Topaz Fine Foods Pty Ltd said:[274]

With great respect, no question of 'disentanglement' arises under para (c) of the definition of serious injury. As the decisions of this Court make clear, 'disentanglement' is a task which arises - if at all - only in relation to para (a) of the definition. That is, where the application is based on the 'permanent serious impairment or loss of a body function', the court is obliged - by s 134AB(h) - to exclude from consideration 'the psychological or psychiatric consequences of a physical injury'. Where necessary, that will require the 'disentangling' of the psychological consequences of the injury from the physical consequences.

1. In Meadows v Lichmore Pty Ltd, the Court of Appeal said:[275]

As a result, so the respondent submitted, serious injury applications raising issues of this kind are effectively approached in a two-step manner. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative - and, of course, if the pain and suffering consequences satisfy the statutory criterion - then the applicant will succeed without the need for any 'disentangling' of the physical contributions to the pain and suffering from the psychological contributions.

1. Mr Doig was satisfied that the plaintiff suffered an organic injury in the form of residual carpal tunnel, and A/Prof McCombe, the plaintiff's hand surgeon, said that "she has developed recurrent symptoms of carpal tunnel syndrome, particularly on the right side, with hand numbness and pain".[276] I am not satisfied by the defendant's submission that the plaintiff's application is precluded based on a need to or any failure to disentangle. I am satisfied that having excluded from consideration the psychological or psychiatric consequences of the physical injury, that there is a substantial organic basis for the pain and suffering consequences relied on and attributable to the accepted claim.
2. The next issue is whether in light of Lexa,[277] the application can succeed by the plaintiff separating out and placing reliance on the impaired function to one or other or both of her left and right hands individually and satisfy the test for the grant of a certificate? I am satisfied that plaintiff may legally separate out one from the other by application of principle. My judgment is reinforced by the decision in Puhovac[278] earlier referred to. When that exercise is undertaken and applied to the evidence, I am satisfied that the plaintiff has proved that the consequences as they pertain to the right hand independently of the left, and of the left separately assessed from the right, present her with functional consequences that satisfy the test for seriousness. Let me explain.
3. Naturally enough, in relation to some activities, the consequences of pain in one hand need not cause a limitation if a particular function to be performed is able to be executed by one hand. So, for example, if the plaintiff encountered difficulty picking up fine objects with one hand, or a folder or a book or magazine but could do so with the other, the presence of pain in one hand would not be a consequence likely to be made out to meet the test because it would not prevent the task from being performed.
4. However, there are a multitude of other activities that require two hands, such that pain in one hand will cause a difficulty or prove impossible, even if pain is nonexistent or negligible in the opposite. Therefore, even if only one limb is affected, actions that require two hands would be impacted to a very similar degree to the impact of pain in each hand.

1. The plaintiff said she sleeps with a hard brace on her right hand, and I accept her evidence. I accept the plaintiff's evidence in relation to her sleep. I am satisfied that the pain in both hands is the main cause of her sleep disruption, but it is mostly due to pain in her right hand. When her sleep is broken the plaintiff said she has often a need for a heat pack or to take pain medication to assist a return to sleep.

1. I accept that the plaintiff needs the benefits of a soft brace of a day to her right wrist and hand although the evidence supports a finding that it is not applied every day.

1. The plaintiff's difficulty in undertaking the task of cutting with the use of a knife held in her right dominant hand is obvious. To be able to cut or chop or slice safely will very frequently require the effective use of both hands so as to steady the thing to be cut, chopped or sliced. The same may said of other tasks the plaintiff described, such as opening the lid on a jar, removing the top of a water bottle as it will involve pulling or twisting a top which requires strength and dexterity and maneuverability of the dominant hand and the ability to stabilize the object with the other. The undertaking of cooking from which plaintiff obtained much satisfaction and was culturally important to her, as well as it being a necessity of life, is patently affected by the loss of function in her right hand and is not ameliorated because of, for example, greater functional capacity with the other. The exercise involved in driving that entails the need to steer, or the use of cutters or shears when gardening, are affected because of pain in both hands, but equally so, if the plaintiff had pain in only one hand. It would not be possible to drive safely or effectively using only one hand or to undertake those other tasks. As well, the plaintiff said, and I accept her evidence, that use of the steering wheel causes her increased pain and more often than not she finds herself limiting her driving to no more than about 15 minutes duration.
2. The plaintiff deposed to the problems with her hands making it difficult to help out with and play with her grandchildren, and in particular, in lifting them without increasing hand pain. It is not feasible to lift a child using only one hand, and one might readily and sensibly anticipate numerous play activities that could not be done effectively or safely using only one hand.
3. Because the plaintiff is right hand dominant it is likely that she will do more things with her right hand than with her left. So many of the activities to which the plaintiff deposed, for example, around the house and the kitchen and the like, are as I comprehend them, predominantly requiring the use of both hands for their execution such that the loss of function of one hand, will preclude the activity from being performed.
4. I accept the plaintiff's evidence of activities of daily living such as washing her hair, dressing, doing up and undoing buttons, and being unable to fasten a bra are affected.
5. The work injury has impacted the plaintiff's capacity to work. Given her pre injury employment history, which was manual in nature and required dexterity, and taking account of the enjoyment she said she derived from it, something that was corroborated by her daughter, that loss is also consequence to be weighed with all the other consequences.
6. I prefer the medical accounts relied on by the plaintiff and certainly in contrast to Dr Reiter, on whose opinion the defendant among others relied, but whose analysis struck me as out of kilter with, and less persuasive than the plaintiff's treating GP, Mr Doig and A/Prof McCombe. I do not accept as Dr Reiter said that the plaintiff's condition has resolved.

1. I am satisfied that the plaintiff has made good her claim under paragraph (c). I am satisfied that she has developed a major Depressive Disorder with psychiatric features. There is no commented upon recorded past history of mental disturbance. I am satisfied that the onset and development of the mental condition occurred in the wake of and because of the subject bilateral condition. The matter of the marriage collapse has been diagnosed as a stressor, but one that is intimately connected to her work injury and the pain she has suffered, and not independently of it. The plaintiff is in receipt of significant medication to address her psychiatric symptoms and she remains in need of regular attendances on her mental health care providers. The effects on the plaintiff of the symptoms caused by her mental condition are detailed in the primary reporting of the plaintiff's treating psychologist and psychiatrist, and when all of the effects on her from her mental state are considered, I am satisfied that the injury is more than significant and is severe. Her grief, her sense of loss and isolation, her symptomology of mental disturbances satisfies me of the correctness in making such a finding.

1. For completeness, I note that Ms Cameron raised the question of the stability of the plaintiff's physical and mental conditions. As to the latter, counsel referred to the plaintiff's treating psychiatrist, Dr Duraiswamy who reported that the severity and intensity of depressive, anxiety and psychotic symptoms would reduce with adequate psychiatric treatment involving medications and psychological therapy. However, he said that complete resolution was limited because of her ongoing pain. I do not derive from that comment of a reduction in symptoms, and that appears to have developed in the wake of an increase in dosages of psychotropic medications, that it follows that a reduction will be of such a degree that at some point in the future, it will be less than warranting a determination of severe.
2. As to the plaintiff's carpal tunnel, Ms Cameron suggested that the stability of any recurrent carpal tunnel condition was questionable because the plaintiff had not at the date of the hearing obtained nerve conduction studies as recommended by A/Prof McCombe in his correspondence to Dr Freilich on 3 April 2024. Be that as it may, it is difficult to ignore that A/Prof McCombe also said of the plaintiff that:

"She has developed recurrent symptoms of carpal tunnel syndrome, particularly on the right side, with hand numbness and pain".[279]

1. The physiotherapy records of attendance I have referred to, fortify a finding that the condition has worsened, and of a recurrence, to adopt A/Prof McCombe's language.
2. Lastly, if there be any doubt, I am satisfied that both heads of injury will persist through the foreseeable future.

1. The plaintiff has had three operations. There is a continued presence of pain and restriction caused in each hand and wrist, and even if only one was painful, the plaintiff would still be requiring pain relief. The plaintiff would still be waking frequently although not exclusively due to the right. She would still be unable to work. She would have the restrictions on driving and cooking and gardening and participating as a grandmother with her grandchildren in those activities that require both hands, so that she could not undertake them with, for example, an unaffected limb. When compared with the range of comparable cases, I am satisfied that the injury to each when assessed for its consequences is objectively more than significant or marked, and is very considerable, and therefore, is serious.
2. The plaintiff has a mental condition that is more than serious to the extent of being severe.
3. Accordingly, the plaintiff is granted leave to pursue a common law claim for pain and suffering damages.

[1] Particulars of Injury filed 8 May 2024 as amended by consent at hearing.

[2] [2019] VSCA 123; 88 MVR 394.

[3] [2024] VCC 1591.

[4] Transcript ("T") 65, Lines ("L") 4-6.

[5] Exhibit P1, Plaintiff Court Book ("PCB") 25-30.

[33] Exhibit D1, Defendant Court Book ("DCB") 32.

[49] Section 335(5) of the Act.

[50] Section 327 of the Act; see also Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; (2005) 14 VR 622 ("Barwon").

[51] Barwon [2005] VSCA 33; (2005) 14 VR 622, 638 [33].

[52] Section 325(2)(c) of the Act.

[53] Section 325(2)(h) of the Act.

[54] Section 325(2)(j) of the Act.

[55] See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].

[56] [2020] VSCA 203.

[57] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 ("Dwyer (No 2)"), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 ("Stijepic"), [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer (No.2) [2008] VSCA 260, [27]).

[58] Section 325 of the Act.

[59] Section 325 of the Act. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.

[61] Exhibit P1, PCB 25-26, at paragraph [1]-[6].

[83] Exhibit P2, PCB 33, [11]-[12].

[90] T 35, L 11-14; T 25, L 28-31; T 36, L1-2; T 36, L 27-31; T 37, L1-5; T93, L 19-22.

[139] Exhibit P15, PCB 93, 99 and 100.

[189] Exhibit D9, DCB 114 (citations omitted).

[241] [2014] VSCA 67.

[258] Exhibit P6, PCB 60; T 100, L 16-26.

[264] Exhibit D16, DCB 46; T 87, L 29.

[265] Exhibit P25, PCB 126-127; Exhibit P26, PCB 128.

[270] [2010] VSCA 69; (2010) 31 VR 1.

[273] [2014] VSCA 67.

[274] [2018] VSCA 323, [5].

[275] [2013] VSCA 201, [21].

[277] [2019] VSCA 123; 88 MVR 394.

[278] [2024] VCC 1591.