May v Return to Work Corporation of South Australia & Anor [2025] SAET 121

1. Ms May was born in April 1977. When she was about 16 years old, she fell from a motorcycle. On 25 July 2001 Ms May injured her lower back at work and subsequently claimed compensation.
2. Ms May commenced employment at Melinda Dairies as a full-time farm hand in or around 2006. She injured her back again in 2007 and claimed compensation. Between 2008 and 2014 Ms May worked for 7 employers, 5 of them in the rural and farming sphere. Ms May appears to not have been in employment between 2014 and 2021.
3. Aurora's records state that Ms May commenced employment with Aurora on 7 December 2021. Ms May maintains that the commencement date was 19 December 2021. That factual disagreement is just one of many between the parties.

1. In her first affidavit Ms May stated that she was scheduled to work morning shift on 2 May 2022 and that she was driven to work that day by her son, Josh Amos, along with her daughter, Monique Mitchell.
2. Ms May stated that she and Ms Mitchell "were scheduled to more or less 'work together'" that day.[1] Ms May then stated that she fell onto the floor after tripping on a milking hose which was about 10 cm in diameter.
3. In her affidavit Ms May stated: "I seemingly landed on my Bilateral hands, Bilateral elbows and Bilateral knees".[2] In giving oral evidence, Ms May asked counsel what the word "bilateral" means and she said that it is not a word she uses.[3] Ms May deposed that most of the impact of the fall was to the left side of her body. She felt pain in her "Left Elbow region" which "was also emitting from [her] Left Shoulder and [her] Left Neck".[4] There was also pain in her "Right Upper Extremity"[5] and "my Bilateral Knees".[6]
4. Ms May's affidavit states that she stayed on the ground for some time and was crying. She stated that Ms Mitchell, came up behind her and laughed until she realised Ms May was hurt. The affidavit does not state that Ms Mitchell was present when Ms May fell or that she witnessed the fall.
5. Ms May deposed that after the fall, James Davey came across her, got her a chair and said that he would "put in an Incident Report for me".[7] She also deposed that Mr Amos, who also works for Aurora, checked on her. She said Ms Mitchell had gone back to work "to make sure that we did not fall further behind".[8]
6. Ms May deposed that she went home with Mr Amos and Ms Mitchell. She stated that she was in pain that night and the next morning but went to work the next day. She described the development of the pain the next day in a high degree of detail.
7. Ms May claimed there was a toolbox meeting in May 2022 at which "Peter van Zyl had seemingly raised the fact that I had fallen over a hose and hurt" herself.[9] She claims that she told Mr van Zyl it was the milk hose, however, he said it was a different hose.
8. Ms May had a medical appointment with Dr Adhikary on 14 June 2022. She describes in her affidavit the comments she made to Dr Adhikary. She did not want a WorkCover medical certificate because "there was seemingly a 'taboo' behind it and 'being on the system'".[10]
9. Ms May sought to explain the comment in Dr Adhikary's notes, "Denies any trauma of injury", and the note she had been experiencing pain in her left arm for more than one year and it had worsened in the last six weeks. She did so by references in medical notes to her symptoms, but they all describe left arm pain with a date of onset prior to May 2022.[11] Based on the differences between notes, Ms May claimed that Dr Adhikary was not really listening to her at the consultation. She also said that Dr Adhikary described the wrong age at which her father died from lung cancer.
10. The affidavit then traverses more than a dozen medical appointments and interactions Ms May had with Aurora employees and makes comment on each of them.
11. Ms May claims that she injured or aggravated her back on 26 March 2023 whilst lifting a trailer at work with her "Bilateral Hands" placed over her "Bilateral Legs".[12] On the fifth attempt to lift the trailer she "felt a sharp, pulling sensation in [her] neck" and felt "sharp and paralysing pain emit throughout the entirely (sic) of [her] Upper Left Body".[13] She continued to hold the trailer because she was concerned that if she let it go "it may land on [her] Bilateral Feet and either break a bone, or amputate it".[14]
12. Ms May reported the trailer lifting incident on 28 March 2023, the next day she worked on after the trailer incident. On 3 April 2023, she saw Dr Lopa and had a text exchange with Amy Whitty from Aurora.
13. Ms May attended the emergency department of the Mt Gambier Hospital on 8 April 2023. She stated that she was experiencing intense left arm and neck pain. The pain had worsened markedly that day. Ms May obtained a Work Capacity Certificate which absented her from work until 14 April 2023. Ms May saw Dr Wallingford on that date and received a further certificate clearing her for modified duties until 15 May 2023.
14. There was another admission to the emergency department of the Mount Gambier Hospital on 20 May 2023. Ms May felt nauseous and unwell and had been vomiting and had experienced bad headaches for three days prior.
15. Ms May continues to have neck and left arm symptoms. She has been certified unfit for work for some time.
16. In her third affidavit, dated 29 October 2024, Ms May described how she came to nominate 2 May 2022 as the date of her fall. She said that when she saw Dr Wallingford, he told her there was a note made by Dr Adhikary dated 14 June 2022 which mentions a discussion with Ms May in which she said that the symptoms in her left arm had worsened approximately six weeks prior to the consultation. That led to the estimated date of 2 May 2022:[15]

...I remember there being discussion that the trailer incident was related to my first injury, so [Dr Wallingford] backdated my Work Capacity Certificate to reflect this.

1. In oral evidence Ms May said that Ms Mitchell worked about three shifts at Aurora before she "signed on",[16] which I take her to mean before Ms Mitchell became employed by Aurora. The issue is important because one of Aurora's witnesses, Michelle van Wyk, a former employee, gave evidence that Ms Mitchell did not work in any capacity until she formally commenced employment with Aurora on 16 May 2022, two weeks after 2 May 2022, the date on which Ms May claimed to have fallen.
2. When asked to respond to Ms van Wyk's comment that Ms van Wyk would have been in big trouble if she had let Ms Michell work on the farm prior to commencing employment, this exchange occurred:[17]

WITNESS: She - she broke rules when she was drunk at work all the time.

DR SALU: And did that impact, as you understood it, on her employment?

WITNESS: Yes.

1. In cross-examination by the Corporation, Ms May was reminded of her answer that she did not feel pain in her neck at the time of the May 2022 fall. She was taken to her affidavit in which she described pain moving up her arm and into her neck during the morning on which she had the fall.[18] She said that was something different. It was a pinched nerve sensation.
2. Ms May said that she lost no time from work after the 2 May 2022 fall. By reference to her medical notes, she did not consult a doctor about the fall. She was taken to a note of the Hawkins Medical Clinic dated 10 May 2022 which makes no mention of a fall. She agreed that was so. She also agreed that the first mention of left arm pain at a consultation was on 14 June 2022 when she was described as having said the pain was present for more than a year. Ms May said she was "100% sure" she did not tell Dr Adhikary that she had experienced pain in her arm for more than a year.[19]
3. Ms May suggested one reason why she may not have identified 2 May 2022 as the date of a fall to Dr Adhikary was that she may have been "put on WorkCover".[20] She then said that she did not tell Dr Adhikary that her neck problems came on after the fall because she did not want to lose her job.[21] Ms May was asked how telling her doctor how she had hurt herself could cause her to lose her job. She responded by saying that the injury would be reported to work if she had reported the injury to a doctor, and the doctor would want to put her on WorkCover and she would lose her job. After saying that she was not asked whether she had suffered an injury or trauma, Ms May agreed that she had been asked that and had answered no.[22] The answer was not consistent with Ms May's affidavit where she deposed that Dr Adhikary's note stating she had denied sustaining any trauma or injury was incorrect.[23]
4. Ms May was asked to explain the comment in her affidavit that Dr Adhikary's notes were inconsistent with other medical notes. She said twice that she did not know what the inconsistencies were.[24]
5. When asked about the history that she gave to Benjamin Allen, a chiropractor, Ms May denied telling Mr Allen that she had had left arm pain and left arm pins and needles for years as his notes record.[25]
6. Ms May told Dr Gulati on 1 November 2022 that she had left arm pain. She was asked why she did not mention having a fall on 2 May 2022 in the consultation. She again questioned the validity of the notes and said "I reckon half of these notes are bullshit".[26] It was put to Ms May that she had made up a story about how she came to have neck pain. She responded by saying the Corporation had gone behind her back to get medical notes and then said four times: "You have done it".[27]
7. Ms May agreed that the certificate she gave to Aurora advising that she had a restricted work capacity did not refer to any work injury. She agreed it was not until 20 December 2022 that she told a doctor she had sustained a work injury.[28] This evidence followed:[29]

MR BIRCHALL: Why did you wait until the 20 of December 2022 to tell any of the doctors that you'd seen since the 14 of June 2022 that you'd had a work injury?

WITNESS: Because it was getting worse.

MR BIRCHALL: Why didn't you just tell them? I tripped over at work.

WITNESS: Because I wanted to keep working.

MR BIRCHALL: And what, again - - -

WITNESS: My work - I absolutely loved my job.

MR BIRCHALL: And what was it about having a confidential appointment with your doctor that would stop you from working?

WITNESS: Because it would stop me from working, you know?

MR BIRCHALL: Why?

WITNESS: Because they tried to put me on WorkCover before that. I needed to work.

MR BIRCHALL: Who's going to put you on WorkCover if no one knows?

WITNESS: A doctor tried to.

MR BIRCHALL: Okay. You see?

WITNESS: And I rang Amy up to find out a day when I fell.

1. Ms May was taken to an incident report form completed by Aurora for an incident at 5am on 20 July 2022 which states: "Employee tripped over hose to vat injured right knee".[30] She accepted the description of the incident was accurate but said that the time was not correct. She then said that she "landed on [her] all fours".[31] It was put to Ms May that in her first affidavit she had deposed that she did not fall fully but landed on her right knee "slightly".[32] She said yes. It was then put to her that she did not see a doctor about her left arm between 20 July 2022 and 1 November 2022. She disagreed, but her counsel accepted the proposition was correct.[33]
2. Ms May was referred to a specialist at the Flinders Medical Centre on 20 December 2022, and that was the first time that she had told a doctor that she had suffered a fall at work.[34]
3. In relation to the trailer incident, Ms May confirmed that it occurred on Sunday 26 March 2023. It was put to her that she did not attend hospital until 8 April 2023. Ms May said that she kept working but did not want to accept the proposition in full and asked to see another certificate. She agreed that she only attended hospital once after the trailer incident but did not accept that it was on 8 April. She stated that the date of her age was wrongly recorded on the admission note. Eventually Ms May conceded that her age was correctly recorded and admitted that she did go to hospital on 8 April 2023. Next it was put to her that she saw Dr Lopa before then, on 3 April 2023. She disagreed and said: "Youse have changed stuff".[35] She then agreed that she saw a doctor on 3 April 2023 but denied that the reason for the attendance was to get a referral to a neurosurgeon. It was then put to her that Dr Lopa mentioned a referral letter in his note. Ms May said the attendance was because she had pain down her left side and she had the referral letter completed while she was there.
4. Ms May agreed that her back was x-rayed at the Mount Gambier Hospital on 8 April 2023. She was also given a Work Capacity Certificate covering her until 14 April 2023. She agreed that she saw Dr Wallingford on 14 April 2023 and his note recorded that she hurt her back at work on 26 March 2023. Ms May said that was not correct. It was put to her that Dr Wallingford noted that he tested her lower limb to see if there was any altered sensation. She said that she did not know what that meant. When questioned further about the consultation she said that she did not remember.
5. Ms May agreed that the claim for compensation in this proceeding was submitted on 14 April 2023. She said that she had no recollection of making a phone call to make the claim with her friend Lisa present. Ms May stated that Dr Wallingford lodged the claim for her. When pressed further, she denied making a phone call to a claims officer to report and submit a claim. She acknowledged that she had made two claims for compensation previously. Ms May stated that she could not recall making claims in 2001 and 2007 because she was influenced by drugs at the time. It was put to her that she had described both claims in her affidavit. She then said that she could not remember the exact day. Counsel put to Ms May that she was not being asked to remember the exact day.
6. In returning to ask Ms May what happened on 2 May 2022, counsel put to her that she was not on the morning shift that day. Ms May said that she did not work an afternoon shift on the day she was injured and suggested that she may have worked a morning and an afternoon shift on the same day. Later she said that she was injured on a morning shift and did not work an afternoon shift on the day when she was injured.[36]
7. It was put to Ms May that she invented Ms Mitchell being at work with her on 2 May 2022. She denied it. It was also put to Ms May that no-one witnessed the fall. She said that Ms Mitchell witnessed the fall. She was then taken to her first affidavit where she described the fall and its aftermath.
8. Counsel put to Ms May that her description of the incident conveys that she was on the floor for some time before Ms Mitchell came across her. Ms May said that Ms Mitchell was in front of her and present when she fell and that she was showing Ms Mitchell "how to do the back hose".[37]
9. It was put to Ms May that contrary to her affidavit, there was no toolbox meeting in May 2022 but there was one in in August 2022. It was put to her that she had a fall at work on 20 July 2022 and it was discussed at a toolbox meeting on 24 August 2022. It was suggested to her that her description of James Davey coming across her after the fall and assisting her occurred on 20 July 2022. Ms May did not accept those propositions.
10. A recording of a phone call between Ms May and a claims officer was played to Ms May in full. She recognised her own voice, and that of Lisa, and said that she did recall the call and the conversation. Lisa volunteered that Ms May fell onto her left side and immediately felt pain in her elbow and neck. Ms May said that she did not feel neck pain but acknowledged that Lisa said that in front of her and said that she did not correct Lisa.
11. It was put to Ms May that she did not fall at work on 2 May 2022 and that she had invented a story about the incident. She disagreed.
12. Counsel for Aurora put to Ms May that on 2 May 2022 she clocked on at 12:09pm and clocked off at 17:44pm. She said: "Well, anyone can go in and change that".[38] That led to questioning about how Ms May concluded that she was injured on 2 May 2022. She said that she worked it out with the doctor but could not remember the doctor's name.[39] She then said it may have been Dr Wallingford.
13. It was put to Ms May that Ms Mitchell did not commence performing work for Aurora until June 2022. Ms May disagreed and stated she was training Ms Mitchell at the beginning of May 2022. When asked how she was aware of that, Ms May said that she knew it. Counsel then asked, if Ms May knew that to be so, why did she need to try to work out the date of the fall, firstly with Aurora, and then with Dr Wallingford.
14. Ms May was asked who allowed Ms Mitchell to perform work at Aurora's premises before Ms Mitchell became employed by Aurora. She said that it was Ms van Wyk. This exchange followed:[40]

MR SWAN: You didn't speak to your employer about taking Monique Mitchell out there to work, did you?

WITNESS: I did speak to my employer.

MR SWAN: Well, on what basis?

WITNESS: What do you mean "what basis"?

MR SWAN: She wasn't employed there. Monique Mitchell wasn't employed there. Why would she go out there?

WITNESS: Because I was training her up, because they were getting other workers. They wanted other workers out there.

MR SWAN: But you don't train workers up unless they are, in fact, employed, do you?

WITNESS: Well, this is a different sort of, probably, dairy, the way we ran it. We were running it. Us employees were running it, you might as well say.

1. Ms May was asked questions about a conversation she had with Mr van Zyl on 21 December 2022. She did not accept the version of the conversation Mr van Zyl set out in his affidavit. She was then taken to his email to Ms Whitty dated 21 December 2022 in which he wrote that Ms May told him that day that a "disc C5/C6 in her neck is causing compression on nerves".[41] It was put to Ms May that she had a conversation with Mr van Zyl prior to Christmas 2022. She maintained her position that she did not and said: "It's all - it's lies"[42] and repeated the last comment twice more.
2. In re-examination Ms May disagreed with most of the detail described by Mr van Zyl in his account of their 21 December 2022 discussion. She said that she did not recall the subject of disc compression being discussed.

1. In her affidavit Ms Mitchell stated that she is Ms May's daughter.
2. Ms Mitchell stated that she commenced at Aurora in or around April 2022. She added that she received a workplace induction on the day she commenced. She stated that she worked with her mother quite a bit in the early stages of working for Aurora.
3. Ms Mitchell deposed that she recalled being rostered to work with Ms May on 2 May 2022. She recalled Ms May going into another room but said that she could vaguely see her and saw that she tripped on the floor. Ms Mitchell started to laugh until she saw her mother crying. She recalled Mr Davey coming out of a room soon after and assisted Ms May.
4. In cross-examination, Ms Mitchell acknowledged that her contract of employment is dated 16 May 2022. She said that she started to help out at Aurora before then. She was asked about the timing of toolbox meetings. When told there was no toolbox meeting in May 2022, Ms Mitchell said that it was possible her mother's fall was raised at a toolbox meeting on 24 August 2022. After that, it was put to her that the date of Ms May's fall may have been 20 July 2022. This exchange followed:[43]

MR SWAN: Thank you. And, Ms Mitchell, if we go back to page 169 (indistinct words) of that book you've got - the first page of your affidavit - paragraph - sorry. See, at paragraph 5, it says -

At some stage in or around April 2022, I commenced employment with Aurora Dairies.

But that's not true, is it?

WITNESS: No.

MR SWAN: And you told us that you attended at the farm on occasions when your mother needed help. That's right?

WITNESS: Before - - -

MR SWAN: Sorry?

WITNESS: Before I started there, I did.

MR SWAN: Yes. You - - -

WITNESS: Yes.

MR SWAN: Yes. And you also say you were there on the day she was injured. That's correct?

WITNESS: Yes.

MR SWAN: But you didn't bother to go and help her the next day.

WITNESS: No.

MR SWAN: You didn't think she might need help the next day?

WITNESS: No - because I probably had something on.

MR SWAN: You probably had something on.

WITNESS: Yes.

MR SWAN: What did you have on?

WITNESS: I do have a daughter.

MR SWAN: Yes - and what did you have on?

WITNESS: Well, I can't remember exactly, but I obviously would have had something on.

1. When pressed about her evidence that there was a toolbox meeting in May 2022, Ms Mitchell said there were many toolbox meetings and she did not remember back that far.[44] Later when it was put to Ms Mitchell that a fall her mother had on 20 July 2022 was discussed at a toolbox meeting on 24 August 2022, Ms Mitchell said that could have happened but she was unsure and did not know.[45] She then agreed that she could have attended the 24 August 2022 toolbox meeting and that could have been the meeting where her mother's fall was discussed.[46] When taken to James Davey's evidence, Ms Mitchell said that Mr Davey was there when her mother fell and she witnessed the fall.[47] When it was put to Ms Mitchell that date may have been 20 July 2022 she said "I don't know. I'm guessing".[48]

1. Mr Amos is Ms May's son, He deposed that he was employed by Aurora in late 2021. Mr Amos also deposed that on 2 May 2022 he went into the shed area at work and saw his mother sitting on a chair and looking like she was in pain. She told him that she had just fallen over. He recalled her holding onto her left elbow.
2. Mr Amos recalled a toolbox meeting at which his mother's fall was discussed. He thought it took place in or around May 2022. Peter van Zyl addressed the meeting and emphasised the importance of hanging up hoses rather than leaving them lying on the floor.
3. In cross-examination it was put to Mr Amos that he worked the afternoon shift on 2 May 2022. He said that was wrong because he was working morning shift. He was shown the roster and said that it looked different to what he saw. He observed that it said "AM", which indicated the morning shift. It was put to him the document showed that he commenced work at 12:35pm and stopped at 5:46pm. He agreed that he would not commence work at 12:35pm when working morning shift. Mr Amos then said that he may have got the date wrong.[49] Mr Amos agreed that the document showed that both he and Ms May started work on 2 May 2022 between 12pm and 1pm, but he continued to maintain that Ms Mitchell was at work on the day Ms May had a fall because Ms Mitchell started performing work before being employed. That led to this passage after it was put to Ms Amos that Ms Mitchell did not attend work on 2 May 2022:[50]

HIS HONOUR: Just answer from your own understanding and any reasons you think might support the answer that you've given earlier, all right?

WITNESS: Well, I might have got the dates wrong. I'm not a hundred per cent correct on the dates., but she was there when she hurt herself.

MR BIRCHALL: She was there when who hurt herself?

WITNESS: When my mother hurt herself.

MR BIRCHALL: And it is possible that could have been 20 July 2022 when your mother tripped over a hose and not 2 May 22?

WITNESS: Possibly.

1. In cross-examination by Aurora, Mr Amos first said that he could remember the fall taking place on a Monday but he repeated that he may have the date wrong and then said it may not have been a Monday.[51] Mr Amos explained that he came up with the date 2 May 2022 by working out roughly when the fall happened and settling on that date.[52] He agreed that he likely went through the process of trying to work out when the fall occurred a few weeks before 15 December 2023, the date when he signed his affidavit.
2. Mr Amos said that Ms Mitchell had a job "interview and then worked straight after it".[53] He maintained that she was not employed when she first performed work for Aurora. Cross-examination finished in this way:[54]

MR SWAN: Yes. Okay. I think you've been asked questions about 2 May 2022, and you've agreed a number of things about that. But if I put to you that on 2 May 2022, Monique was certainly not at the dairy on that day, would you agree with that?

WITNESS: No.

MR SWAN: Do you say she was there?

WITNESS: Yes.

MR SWAN: How do you say she was to you?

WITNESS: Because she was there when mum hurt herself.

MR SWAN: Yes. But you've agreed with Mr Birchall that you might have the date wrong, that she hurt herself.

WITNESS: Yes.

MR SWAN: So let's assume she hurt herself a couple of months later. That is consistent with Monique not being there on 2 May, isn't it?

WITNESS: Yes

MR SWAN: Yes. And so do you agree with me that she may not have been there, and in fact, I put you, wasn't there on 2 May?

WITNESS: I don't believe [she] wasn't, but she may not have been there.

1. Ms Redding is employed by Aurora. In her first affidavit dated 15 December 2023, Ms Redding deposed that she told Ms May that positions were available at Aurora. After Ms May commenced employment with Aurora, Ms Redding gave her an informal induction and overview of the worksite.
2. Ms Redding deposed that she recalled talking to Ms Mitchell on 3 May 2022 and Ms Mitchell saying that she felt bad about laughing at her mother when she had hurt herself. Ms Redding also deposed that there was a toolbox meeting late in May 2022 at which Ms May's fall was discussed.
3. Ms Redding had an incident with a trailer in early 2023. She went to move the trailer which did not have a jockey wheel and felt a twinge in her back.
4. In a second affidavit dated 14 October 2024, Ms Redding joined issue with some of the affidavit evidence of witnesses relied upon by Aurora. Ms Redding also qualified her original affidavit evidence that Ms May's fall was on 2 May 2022:[55]

With regard to Rebecca hurting herself at work, whether it happened on 2 May 2022 or 20 July 2022, all I can say is I know for a fact that this did happen...

1. In cross-examination it was put to Ms Redding that Ms Mitchell did not work on 3 May 2022. Ms Redding said that she was prepared to admit that she was wrong about dates.[56] Later she agreed that was the case with the date of the fall and the date of the toolbox meeting at which the fall was discussed.
2. Ms Redding agreed that the informal induction she gave Ms May was not required of her in her role at the dairy. She agreed it was not her role to perform inductions.
3. Ms Redding stated that Ms May loved her job and was a good worker. She said that Ms May has found it very hard not being able to work. She recounted helping Ms May with some aspects of her work when Ms May was in pain. Ms Redding agreed that could have been at the end of 2022 and the beginning of 2023.
4. Ms Redding was asked further about how she arrived at 3 May 2022 being the date of her conversation with Ms Mitchell. She said that she believed someone had asked her whether she was at work with Ms Mitchell on that date and she had said that she was there the day after the fall and had the conversation.[57] She agreed that it could have been months later that the fall and the conversation took place.[58]
5. In re-examination Ms Redding was shown the roster. She asked why all the milking was being done "AM". She thought the timing was odd because a drover would need to round up the cows and bring them into the shed well before the milking started.

1. Peter van Zyl is the Operations Manager of Aurora in South Australia. He commenced in the role in April 2020. He deposed that Aurora operates eight farms in the State and that Ms May worked at Landour Park. All of the farms are located around Mount Gambier.
2. Mr van Zyl deposed that he did not recall attending a toolbox meeting at Landour Park in late May 2022, nor did his records suggest that he had. He did recall a toolbox meeting on 24 August 2022 that he attended. He denied getting angry with Ms May at the toolbox meeting as she claimed. He said he was firm with everyone at the meeting about telling them to roll up the hose and store it correctly after use. He said that his firm demeanour was directed to everyone present at the meeting, not just Ms May. He said the fall Ms May had in July 2022 was discussed at the 24 August 2022 meeting. He recalled having conversations in late July 2022 about the fall because it arose from a trip hazard and concerned him.
3. Mr van Zyl deposed that he spoke to Sarel Potgieter about the fall and was advised that it was not serious. Ms May iced her knee for a while and returned to work.
4. It was not until 9 November 2022 that Mr van Zyl heard further about the fall. He received a text message from Mary Sgammini, Mr Potgieter's wife, advising that Ms May had provided a medical certificate dated 8 November 2022 in relation to the fall. The certificate did not refer to the fall. It placed Ms May on light duties between 8 and 22 November 2022. A further medical certificate was provided by Ms May in December 2022. It provided that she should remain on light duties until she recovered fully.
5. Mr van Zyl and Ms May had a discussion on 20 December 2022. He describes the conversation in detail in his affidavit. As already said, Ms May denies virtually all of his account. There is a note of the conversation made by Mr van Zyl which is brief, but as noted earlier, describes an issue with the C5/C6 level of Ms May's spine.
6. Mr van Zyl deposed that Ms May did not follow the procedure prescribed by Aurora for reporting an injury.
7. On 20 December 2022 Mr van Zyl had a conversation with Ms Whitty who told him that Ms May had asked what date she fell at work.
8. Mr van Zyl did not remember Ms Mitchell starting with Aurora in early May 2022. He checked and ascertained that her start date was 16 May 2022.
9. Mr van Zyl arranged for Ms May to consult a physiotherapist at iCanPhysio to assess her work capacity.
10. Mr van Zyl deposed that neither he nor anyone in management at Aurora had any idea that Ms May was in need of light duties from October 2022 as she deposed in para. [136] of her first affidavit.
11. Mr van Zyl deposed that he was frustrated when he saw that Ms May had attempted to lift a trailer. He attended Landour Park on 29 March 2023 to discuss that with her. He deposed that he asked Ms May why she lifted the trailer. She said that no-one was around to help her. He responded by saying that explanation was bullshit. He said that the tone of his comment came from frustration and exasperation.
12. While Mr van Zyl set out the conversation he claims to have had with Ms May in full in his affidavit, his handwritten note of the conversation is very brief. It does however mention "C5/C6 compression on nerves".[59]
13. At the end of his affidavit, Mr van Zyl disagreed with the May, Mitchell, Amos and Redding affidavits in relation to there being a fall on 2 May 2022, a discussion with Ms Redding the next day and a toolbox meeting later in the same month.
14. In oral evidence Mr van Zyl explained that the document which showed who worked on 2 May 2022 and the times they worked to and from is an automated report. It is based on clock-on and clock-off times, and if they are not entered, a manager enters the times. Mr van Zyl explained that his understanding was qualified by him not using the system in his role. In cross-examination he explained that the document is a timesheet, not a roster.[60]
15. Mr van Zyl said that by reference to the timesheet, James Davey would have would have brought cows to the milking area. In relation to the other people mentioned on the timesheet, he said that Bernard Diederiks and Jacob Pratt would have turned on feed systems, connected the milk vats and put filters in place. He said that was a 15 to 20 minute job and that the first cow arrives within 10 minutes and the last cow within 35 minutes. He said that as soon as the first cow arrives, it is connected to a machine and milking commences.
16. Mr van Zyl was challenged about the frequency of toolbox meetings. He agreed that the records of them may not be accurate.
17. It was put to Mr van Zyl that he had destroyed his notebook. He denied it. He said that he made notes everywhere and could not find a record of his note of toolbox meeting attendances. Mr van Zyl was then asked whether he knew that Mr Potgieter had tripped at work and injured his ribs when he fell on his phone. He said he was not aware of that.
18. Mr van Zyl said that the note he made for the March 2023 injury was that it occurred when Ms May was "lifting pump out of calf trailer".[61] When asked why he made that note he said it was because that was what Ms May had told him. It was put to him that he did not speak with Ms May about the incident on 29 March 2023 because she was not at work that day. He agreed, based on the timesheet, that Ms May was not at work on that day. He said it would have been one day in that week.
19. In re-examination Mr van Zyl was asked about the suggestion that was put to him there was a toolbox meeting at Landour Park farm on 22 June 2022. He said that by reference to his diary, he had meetings with three managers on 22 June 2022 to work through their monthly planning sheets. He also met with a fencing contractor. He said that the note indicated that he had spent the whole of 22 June 2022 at Kingsley farm.

1. Mr Davey is employed by Aurora as a senior farm hand. He is responsible for the day-to-day operation of the Landour Park farm. In May 2022 he was working as a Farm Hand.
2. In his affidavit, Mr Davey described his induction in detail and said that it was very thorough.[62]
3. Mr Davey stated that he would often work with Josh Amos and do a lot of the droving work.
4. Mr Davey recalled filling out an incident report for Ms May in late July or early August 2022. He recalled it as the first incident report he filled out for her and the only one that involved a fall at work. Mr Davey recalled assisting her after the fall, which he said was on 20 July 2022. He said that Ms May made no complaint of upper body pain but indicated that she had hurt her right knee.
5. In oral evidence Mr Davey disagreed that Ms Mitchell spent time at Landour Park before she commenced working there to see whether she liked it before she signed up.[63] He also disagreed that there was an incident on or about 2 May 2022. He did not accept that he may have failed to lodge an incident report. He explained that an individual can log their own incident report through their mobile phone or, if they prefer, Mr Davey could do it for them. That usually happens and he uses an iPad at work to log incident reports made by others.
6. When shown the time sheet for 20 July 2022, Mr Davey said that he would normally have attended TAFE that day but he came into work at 5:15am to cover for Ms May after she hurt herself. He was paid by Aurora to attend TAFE so he usually did not record time on TAFE days. He explained that whilst his start time was recorded as 5:15am, he would have been at work at about 2am because it was his practice to attend work at that time on TAFE days during calving to check all was well. Because he only stayed for a couple of hours, he did not record that time. He explained that on the day prior to giving evidence he had gone to Landour Park for 20 minutes at 7pm to do a check and did not record his time.

1. Ms Whitty is employed by Aurora as a Regional Administration Officer. Her affidavit focussed on the induction process, the systems used for various human resources functions and toolbox meetings. She stated that the records showed there were toolbox meetings at Landour Park on 22 June 2022, 8 July 2022, and 29 August 2022.
2. Ms Whitty deposed that she received no notification of any incident occurring to Ms May on or about 2 May 2022 but there were records of incidents on 20 July 2022 and 28 March 2023.
3. Ms Whitty deposed that it was not until late 2022 that she understood that Ms May claimed to have had an injury on 2 May 2022. She received a text message from Ms Sgammini on 9 November 2022 with an image of a medical certificate. Ms Whitty asked Ms Sgammini whether Ms May was hurt at work. The text message response said "[w]ell she has arthritis in her neck but she says she slipped in shed and this flared it up".[64]
4. A further medical certificate dated 12 December 2022 was also provided.[65] Ms Whitty described other communications with and about Ms May. She deposed that Ms May did not tell her about the diagnosis in the Benson Radiology Report dated 15 June 2022, nor did she request light duties at work until she provided the medical certificate of 8 November 2022.[66]
5. When Ms Whitty was advised that Ms May had made a claim for compensation in April 2023, she was surprised to see that the claim asserted Ms May had fallen on her left side and left elbow causing neck pain because the incident report of the fall said she had injured her right knee and a diagram on the form contained a marking on the right leg (and nowhere else).[67]
6. In cross-examination Ms Whitty said that the records of toolbox meetings she had collated were records that had been logged into the safety management system. Ms Whitty may not attend a toolbox meeting.
7. When taken to the records of the toolbox meetings Ms Whitty agreed with counsel that there were gaps in the records, that is, months where a meeting did not occur or was not recorded and/or a record was not provided to her.
8. Ms Whitty confirmed that there was no record of Ms May having sustained an injury on or about 2 May 2022 in the relevant system records.
9. Ms Whitty maintained the account in her affidavit that she was unaware Ms May was asserting that she had sustained a work injury to her neck and left shoulder until 20 December 2022.

1. Ms Tran is a Human Resources Business Partner employed by Aurora. Her affidavit reiterates matters concerning Ms May's employment with Aurora described elsewhere. The affidavit exhibits a large volume of documents.
2. In cross-examination Ms Tran explained that she is not usually involved in workers compensation issues. Ms Tran was asked whether she had to deal with issues concerning Michelle van Wyk. She said there were some mental health concerns in relation to Ms van Wyk. She was asked whether the issues related to alcohol and she said that they did not. A series of questions were asked about Ms van Wyk. Ms Tran could not recall the detail of what happened and was not able to answer the questions which appeared to be designed to cast doubt about the character of Ms van Wyk. When Ms Tran stated that Ms van Wyk had resigned, she was asked whether her employment had been terminated. Later, Ms Tran said that she recalled there were performance concerns and mental health concerns in relation to Ms van Wyk.
3. Ms Tran stated that a work trial with Ms Mitchell should not have happened, and she believed that it did not happen.
4. Ms Tran was asked when Ms Mitchell ceased working for Aurora. In her affidavit she said the date was 16 June 2023. She was shown an employee separation certificate dated 14 February 2023 which she had signed on 13 February 2023. The certificate states that the end date of employment was 1 January 2023.
5. Ms Tran described the document Mr van Zyl had described as a timesheet as a roster as it came from Deputy, a time and attendance software system.

1. Ms van Wyk was employed by Aurora from 1 September 2020 to about 9 April 2023. At the time of giving oral evidence by video link, Ms van Wyk was working as a fly-in fly-out dump truck operator for Thiess in the Western Australian goldfields.
2. In her affidavit, Ms van Wyk stated that Ms May was good to work with. She recalled Ms May complaining to her about her neck and shoulder at Landour Park. In oral evidence Ms van Wyk explained that she left Landour Park on 30 May 2022 because she was transferred back to the neighbouring farm.
3. In her affidavit, Ms van Wyk stated that she did not recall hearing about a fall of the type Ms May described in May 2022 while she was at Landour Park. She said if there had been such a fall it would have been entered into the incident report system. She said Mr van Zyl was very strict about that.
4. Ms van Wyk deposed that on 30 September 2024 she received a text message from Ms May asking if they could talk. In the conversation that followed, Ms May described her claim to Ms van Wyk and said she needed evidence that her daughter had started working at Landour Park prior to 16 May 2022. There were further texts as follows:[68]

Beck, what dates do you want to confirm that Monique was at Landour?

...

Anything before the 16th of May 2022, cause she hadn't signed a contract yet but was out there training with me.

1. Ms van Wyk described the text messages exchanged between her and Ms May verbatim in her affidavit. In the last such text, Ms van Wyk last replied that there was nothing about Ms Mitchell working at Landour Park before 16 May 2022 and wished Ms May all the best.
2. Ms van Wyk looked back through her text messages to see if any of them suggested that Ms Mitchell started training before she was employed. Ms van Wyk found a text from Ms May dated 28 April 2022 in which Ms May wrote that Ms Mitchell was looking for work for three days per week. After speaking with Mr Potgieter, Ms van Wyk texted Ms May on 3 May 2022 and asked if Ms Mitchell was still interested in working on the farm. The response was positive.
3. Copies of all relevant text message exchanges between Ms van Wyk and Ms May and Ms Mitchell are exhibited to Ms van Wyk's affidavit.
4. Ms van Wyk maintained that Ms Mitchell did not work on the farm prior to 16 May 2022. She referred to Ms May's texted comment that Ms Mitchell had prior experience in the work. Ms van Wyk pointed out that Ms Mitchell's comment that she was helping to feed calves between 2 and 16 May 2022 did not make sense because there were no calves to feed at that time of year. Calving did not commence until later in the year.
5. Ms van Wyk reiterated that the procedures and policies of Aurora would not have permitted Ms Mitchell to perform work at Landour Park prior to being employed.
6. In cross-examination Ms van Wyk remembered Mr Potgieter falling and injuring his ribs. She said the fall took place in the dairy yard, not in the dairy shed. She disagreed with the proposition that by the end of May 2022 she was rarely at Landour Park.
7. Ms van Wyk was asked about mental health issues. She said she was suffering PTSD from a traumatic marriage breakdown. She disagreed that it affected her work and that she was performance managed. She strongly disagreed that she was moved from Landour Park as a result. She denied turning up at work after having a few drinks. She also denied that she had attendance issues. When the subject of her mental state came up again, she explained that May 2022 was a few years after the marriage breakdown but she thought of it at the time of year. This exchange followed:[69]

DR SALU: One final question, and I'm obliged to put it. I suggest that you've denied discussions with Rebecca May about Monique coming on to the dairy because you might need Aurora as a referee in the future. What do you say to that?

WITNESS: Absolutely rubbish, because I am no longer in the dairy industry. I am now in a totally different thing. I don't need Aurora Dairies.

1. During her evidence Ms van Wyk recalled that she texted Mr Potgieter to advise him that Ms Mitchell would be commencing her employment with Aurora on 16 May 2022 so payroll could be notified.

1. Dr Ron Wallingford practices as a general practitioner at the Hawkins Clinic in Mount Gambier. He produced two medical reports that were admitted into evidence.
2. In his first report, dated 4 December 2023, Dr Wallingford simply said he was unable to help because the authority to release information signed by Ms May did not cover what was sought.
3. In his second report, dated 16 January 2024, Dr Wallingford described chronic pain associated with C6 and C7 nerve root compression due to moderate severity spondylosis of the C5/C6 and C6/C7 vertebral area. There was also a report of headaches which correspond to increased arm pain in 2023. Dr Wallingford stated that the original presentation to him was 11 months after the stated date of injury and he could not retroactively guess the impact and consequences of the fall. He recorded that Ms May had no symptoms prior to the fall. He thought there was likely pre-existing spinal spondylosis. Dr Wallingford noted a history of similar occasional shooting pain down the left arm for more than one year prior was given to Dr Adhikary. Dr Wallingford wrote that he saw Ms May for back pain after 26 March 2023. Radiculopathy was not found and he suggested that the back be treated conservatively.
4. In oral evidence Dr Wallingford confirmed that there was no record of Ms May complaining of neck pain prior to June 2022. In cross-examination he said that Ms May's presentation on 14 April 2023 was the first time he had seen her about her neck or C5/C6 radiculopathy. He said that he did see her a week before on 8 April 2023 at the Mount Gambier Hospital in relation to back pain. He agreed that the note he made was "Impression: mechanical back pain secondary to back strain".[70] He also agreed that the attendance on 14 April 2023 was primarily about back pain although Ms May also raised her neck and arm pain at that time.
5. Dr Wallingford explained that the 2 May 2022 date of injury was arrived at because Ms May said that her symptoms commenced 6 weeks prior to her seeing Dr Adhikary on 14 June 2022. He said the date could be plus or minus a few days from 2 May 2022 but did agree that was the date Ms May described to him.
6. Dr Wallingford agreed that the notes of Dr Adhikary and Mr Allen suggest that Ms May did have neck symptoms prior to 2 May 2022. He explained that when he said otherwise, he meant consistent symptoms. He agreed that the effect of the notes was that Ms May did have symptoms consistent with a neck condition prior to 2 May 2022. He added that the prior symptoms were intermittent.

1. Associate Professor (AP) Zacest is a consultant neurosurgeon who provided a report dated 3 October 2024 in relation to Ms May. She was referred to AP Zacest by Dr Wallingford.
2. AP Zacest advised that the latest imaging of Ms May's spine revealed maximal foraminal stenosis at C5/6 and some at C6/7.
3. In oral evidence AP Zacest said he assumed that Ms May's neck and arm pain worsened after the March 2023 injury. When the prior history of left arm pain was put to AP Zacest he said it was possible that what the medical imaging revealed was a deteriorating situation with the neck. He agreed that the presentation may be purely degenerative and that such a scenario was equally as consistent as being a cause as the explanation given by Ms May. He also agreed that the 2023 presentation was for a back injury.
4. There was an objection to a question asked of AP Zacest. I accepted the evidence de bene esse and indicated that I would rule on the objection in these reasons. The objection was to counsel for Ms May putting the March 2023 incident to AP Zacest for the first time without first having sought his view in a report. I allow the question because there was limited time and opportunity to seek a report. As will be seen, the assumptions that the question was based upon were not proven in any event.

1. Mr Carney is a consultant neurosurgeon who has examined Ms May. In his 25 June 2024 report, Mr Carney wrote that Ms May described sharp pain in the left side of her neck, after the first fall, and persisting symptoms and altered sensation in the left arm after the March 2023 injury. Mr Carney considered that Ms May sustained injuries on both dates. The injury was described as prolapse of disc material into the foraminae.
2. Mr Carney expressed concern about a possible bony abnormality affecting the C6 vertebra which might account for some of the symptoms.
3. In oral evidence Mr Carney stated that he thought surgical intervention was warranted. In cross-examination he was taken to the notes of Dr Adhikary and Mr Allen which suggest neck and neck related symptoms prior to 2 May 2022. Mr Carney agreed that the findings he viewed on the medical imaging could have arisen from a cause other than the 2 May 2022 fall. He accepted that the Mount Gambier Hospital discharge note suggested that the March 2023 injury Ms May sought medical attention for was for her lower back, not her neck. Mr Carney also accepted that Dr Wallingford's attendance note, made eight days after the Mt Gambier Hospital visit, is concerned with a back injury. Mr Carney noted that the presentation to the Mount Gambier Hospital in April 2023 included pain radiating down the left leg, which was not part of her presentation to him.

1. AP Brophy is a consultant neurosurgeon who prepared two reports in relation to Ms May.
2. In his first report, dated 23 June 2023, AP Brophy set out Ms May's history of falling onto all fours, but more on the left side, on 2 May 2022. He found evidence of a compromised left C6 nerve root which was consistent with imaging showing marked narrowing of the C5/C6 foramen. Based on the history, AP Brophy considered the fall appeared to have aggravated the C6 nerve root. He thought a C5/6 decompression and fusion should be considered.
3. In a report dated 16 October 2023, AP Brophy reviewed some notes and records after having been asked to do so. He noted Dr Adhikary's reference to pain in the left arm for more than a year on 14 June 2022. Given that, he considered the "incident of 2 May 2022 could only be seen at most as an aggravation of a primarily degenerate state".[71] He considered that any such aggravation should have settled within six months and the ongoing problems, after that, would be attributable to the underlying degenerative process.
4. In oral evidence AP Brophy accepted that if there had been a permanent change in capacity for work after the fall, that could point to an aggravation of the underlying degenerative condition.

1. Counsel for Ms May submitted that, contrary to the case of the Corporation and Aurora, Ms May did not concoct a plan to claim compensation for an incident which did not happen so that the cost of the surgery she needs could be funded. Counsel submitted that Dr Wallingford told Ms May to claim compensation.[72]
2. Counsel explained the delay in making a claim was due to Ms May loving her job, not wanting to make a claim and withholding that information from doctors to not jeopardise her employment because that is how she is wired.[73] He submitted that Ms May is not sophisticated and that she overstated some matters to make her point. The comment was made in the context of Ms May saying that some lies had been told about her.
3. In relation to the medical note in which Ms May said there was no trauma, counsel submitted that she may have thought the arm pain she had was due to striking her elbow when she fell.
4. Counsel for Ms May submitted that the evidence of Ms Mitchell and Ms Redding supports Ms May's account. In comparison, he said the evidence relied upon by Aurora about toolbox meetings was unreliable. He said Mr Potgieter's fall was never the subject of a toolbox meeting. Mr van Zyl denied knowledge of any such injury. It followed that Ms May's fall in May 2022 may not have been recorded.
5. Counsel was critical of the evidence of Mr van Zyl and Ms Tran. Mr van Zyl was unable to produce his notes and Ms Tran's affidavit contained an acknowledged error.
6. Counsel for Ms May submitted that the March 2023 trailer lifting incident produced an aggravation, exacerbation or deterioration of the neck injury sustained on 2 May 2022. It was said that Dr Wallingford supported that view. Counsel submitted ongoing incapacity in relation to the neck resulted from the 2023 incident. That was said to be supported by the note made on 14 April 2023.

1. In written submissions, counsel for the Corporation submitted that the following findings should be made:
   • 1.1. The incident, as described by the Applicant, as having occurred on 2 May 2022, never happened.
   • 1.2. An incident, involving the Applicant tripping over a hose and grazing her right knee, but suffering no other injury, occurred on 20 July 2022.
   • 1.3. An incident, which involved the Applicant, did occur on 26 March 2022, but only involved the Applicant receiving treatment for her lumbar spine.
   • 1.4. The Applicant's symptoms of left C6 radiculopathy were pre-existing and symptomatic well before 2 May 2022.
   • 1.5. The Applicant's symptoms of left C6 radiculopathy were not aggravated by any injury, which the Applicant suffered during the course of her employment with the Other Party.
   • 1.6. Around the time of her GP appointment on 3 April 2023, the Applicant decided to make a false claim about suffering a fall on 2 May 2022 (MN 14), so that the Applicant would receive private neurosurgery as part of a workers compensation claim. This is after having told Dr Lopa, on 3 April 2023, that her physiotherapist had advised her to take "the surgical option" - MN 14.
2. Counsel went through the chronology of events and submitted that Ms May's account is implausible. There is no record of Ms Mitchell working at Aurora on or around 2 May 2022. Ms May did not miss any time from work after the alleged fall and did not seek any medical attention for the fall. When she did next seek medical attention, on 10 May 2022 in a tele-consultation, the consultation did not mention the fall or a neck injury.
3. The three lay witnesses called by Ms May all recanted their support for there being a fall on 2 May 2022 while all the witnesses called by Aurora continued to maintain there was no incident on 2 May 2022.

1. Counsel for Aurora submitted that Ms May's claim was concocted and the alleged May 2022 incident was a "complete concoction".[74] There was nothing to suggest that an incident happened and Ms May had already sought medical advice about her neck and left arm symptoms. Even if the incident occurred as alleged, there is no evidence to suggest that it had any effect on Ms May's ability to work.
2. It was submitted that Ms May cannot derive support from the evidence of Ms Mitchell, Mr Amos and Ms Redding because they all said that they may have their dates wrong. To the extent that Ms Mitchell maintained that she witnessed a fall in or about May 2022, counsel submitted that Ms Mitchell was not present and was put in the difficult position of trying to support her mother.
3. Counsel submitted that Ms van Wyk's evidence should be accepted because she was straightforward and had no reason to lie.
4. As to the complaints made about the reliability of Aurora's records, counsel submitted that it does not affect the fundamentals of the case or suggest that there was a conspiracy to defeat a valid claim.

1. It is not disputed that Ms May tripped and fell over a hose at work on 20 July 2022. If Ms May had thought the July fall happened in May, that may explain the differences between the parties, but it is not asserted there was any neck injury in the July fall. The factual disagreements in this case between Ms May, and the Corporation and Aurora, go much further than mistaking the date on which an event occurred. Ms May contends there was a separate fall in May 2022. The Corporation and Aurora submit that there was no such fall.
2. Because Ms May and Ms Mitchell both maintain that that the fall occurred while Ms Mitchell was working at Landour Park before being employed by Aurora, on Ms May's case the fall must have occurred before 16 May 2022.
3. The parties disagreed about the date or range of dates that should be considered in trying to determine whether the fall occurred. There were 10 business days in May 2022 prior to 16 May 2022, Monday 2 May 2022 being the first of them. Counsel for the Corporation complained that the date on which Ms May alleged the fall occurred changed during the life of the proceeding from 2 May 2022, to on or about 2 May 2022, to on a date prior to 16 May 2022.[75] The first variation, to on or about 2 May 2022, was discussed when counsel for Ms May objected to some questions in cross-examination that were directed to 2 May 2022. He said that Ms May's evidence was that the fall occurred on or about 2 May 2022. Those words were not used by Ms May, but she did say this in cross-examination:[76]

MR BIRCHALL: ... And by the first fall, you're talking about the fall on 2 May '22. Aren't you?

WITNESS: Around that time, whenever it was. Yes.

MR BIRCHALL: Well, that's what you mean by the first fall? Correct?

WITNESS: Yes.

1. While stating that 2 May 2022 was the date of the fall in her first two affidavits, Ms May deposed in her third affidavit that she worked out the date at a consultation with Dr Wallingford. At the consultation, Dr Wallingford told Ms May about Dr Adhikary's note dated 14 June 2022, which records that her left arm pain had worsened in the six weeks prior to the consultation. The consultation with Dr Adhikary was on 14 June 2022, six weeks and one day after 2 May 2022. The note reads as follows:[77]

Pain in left arm

for more than a year

it was occasional shooting pain with tingling and numbness

tried to put up with it

for last 6 weeks symptoms getting worse

not getting any relief inspite [sic]of using Panadol and nurofen

using hot compression with no effect

Denies any trauma or injury

denies any chest pain/palpitation/Sob/headache/dizziness/blackouts

no migraine attack in last 6 months since she stopped taking depo-provera

Booked appointment with chiropractor next week

1. An Injury Statement signed by Ms May on 28 April 2023 for the purposes of presenting her compensation claim to the Corporation commences in this way: "Symptoms began on/around 02.05.2022. after a fall @ work".[78]
2. While the words "on/around" support Ms May's contention that she did not intend to limit the date of injury to 2 May 2022, the words "after a fall @ work" appear like they may have been added after the first part of the entry was made for two reasons. There is a full-stop after the date 01.05.2022 in a place where a full-stop is not needed if the other words were there originally and the words "after a fall" are written above the words "@ work" and on a different line to the rest of the entry. The words look like they may have been fitted into what was written earlier.
3. Other parts of the Injury Statement do not assist Ms May's case. She states that she first attended the GP for treatment on 2 May 2022. There is no record of a consultation on that day. In response to the question whether there were any factors other than work which had contributed to the injury the word "no" is circled and the following is handwritten:[79]

the nerve impingement occurred only after the fall and the compression of my elbow & shoulder into my neck.

I had no symptoms, pain or mobility issues or concerns prior to the incident with the hose.

1. Ms May's history to Dr Adhikary on 14 June 2022 was that she had experienced left arm pain for more than a year.
2. Two other important issues are Ms May's failure to mention the fall to a doctor for many months and her delay in making a claim for compensation until 14 April 2023. Counsel for Ms May submitted that the delay in reporting the fall was because Ms May loved her job and was "entirely paranoid" about lodging a claim for compensation.[80] The submission was based on Ms May's evidence. She did not use the word paranoid but said she was worried about losing her job if she reported the injury. I accept that Ms May enjoyed her job but not that she did not report the fall because she feared she may lose her job. Ms May was asked why she would lose her job if she reported the fall to a doctor. She said that if she told a doctor she had been injured at work, the doctor would be obliged to tell Aurora about the injury and she would be obliged to make a claim. The explanation does not make sense. Ms May has made several claims for compensation in the past. The 20 July 2022 fall was reported by her without any adverse consequences. Ms May took the rest of the day off after the July 2022 fall. She lost no time whatsoever to the alleged fall of May 2022. When the July 2022 fall was discussed at a toolbox meeting, Ms May spoke up about the incident to the extent that she said Mr van Zyl became annoyed at her. That behaviour is not consistent with an employee who is worried about reporting an injury to their employer. In addition to those matters, Ms May did not explain why she belatedly mentioned the alleged fall to Dr Adhikary at a consultation on 20 December 2022.
3. Ms May did not see a doctor after the alleged fall until 10 May 2022 when she consulted Dr Amjad. The consultation note does not refer to neck or left arm symptoms nor does it mention a fall. Consultations in October and November 2022 do not mention a fall. When Ms May consulted Dr Gulati and Dr Milne on 1 and 8 November 2022 respectively, each of them recorded neck and arm pain. The consultation with Dr Gulati recorded that Ms May raised a concern about the associated pain as a priority:[81]

in lot of pain

had accident at 16 years of age

seeing a Chiropractor

keeping her awake at night

has tried Lyrica without any relief

deny use of any medications at the moment ( not taking any med out of her list also )

pins and needles also in hand

almost ATT

last weeks has worsened

no troubles with Rt side

also feels hand is getting weak

noted past history and medications

1. Dr Milne made the following note:[82]

reduced rotation to left

reduced extension

grip strength 4/5 left hand 5/5 right

is affectign [sic] work - works at dairy for last 6 months

nil improvement with endep ir nsaids [sic]

1. Counsel for Ms May suggested that if she had hatched what he described as a 'cunning plan' to concoct an injury, as the Corporation and Aurora maintained, she would not have mentioned having a fall on 2 May 2022 because she would receive weekly payments for a longer period if the claim was based on the 2023 injury alone.[83] I suggested to counsel that the submission assumed a level of understanding and sophistication about claims which Ms May does not have.
2. Despite describing how her pain developed on the day after the alleged fall in detail in her first affidavit, Ms May's evidence about the circumstances of the fall was not clear. In her first affidavit, Ms May said that she had turned on the milking hose in a shed located within the dairy area and had turned to walk out of the shed "back into the main area" when she tripped and fell on the milking hose.[84] She did not state that Ms Mitchell was in the same area. In oral evidence Ms May said that Ms Mitchell was in front of her and turned to see her after the fall. In her first affidavit, Ms Mitchell stated that she recalled Ms May "going into another room inside of the shed".[85] She stated that "[w]hen mum was walking into this room, I could vaguely see her in my peripheral vision and saw that she just tripped on the floor".[86] Contrary to Ms Mitchell's affidavit, Ms May's affidavit states that she tripped on the hose coming out of the room.
3. Ms May and Ms Mitchell each deposed that there was a toolbox meeting in May 2022 at which the subject of Ms May's fall was raised. Under cross-examination Ms Mitchell said she that she did not remember the date of the meeting and agreed that it could have been in July or August 2022.[87] Mr Amos also volunteered several times that he may have the date of Ms May's fall wrong. The evidence of Ms Mitchell and Mr Amos does not support Ms May's case as they were anything but confident that the fall occurred on 2 May 2022 despite attesting to that in their affidavits. Ms Redding also said that she could not be sure about the date of the fall and the toolbox meeting and said the fall could have been in July 2022.
4. Ms May claimed that Mr Davey assisted her after the fall. Mr Davey denied that was the case in relation to May 2022 but said that he did assist Ms May after the 20 July 2022 fall. Mr Davey's evidence was clear and concise and his recollection of events was very good. He impressed as someone who took his work seriously. He attended at Landour Park at times without being rostered to work to see how things were going. He did not seek to be paid for such attendances. I accept Mr Davey's evidence and prefer it to that of Ms May, Ms Mitchell and Mr Amos on this issue. I am satisfied that Mr Amos was confusing or conflating what occurred in July 2022 when Ms May fell and Mr Davey assisted her afterwards and lodged an incident report. I am satisfied that if Mr Davey had come across Ms May after a fall in May 2022, he would have assisted her and would have completed an incident report.
5. There are other issues with Ms May's account. All the witnesses called by Aurora gave evidence that Ms Mitchell did not perform work for Aurora prior to her commencing employment there on 16 May 2022. They also said that it was contrary to company policy and practice for someone to perform work for Aurora outside of employment. It would be unusual for a national firm to allow someone to work for it outside of employment and without any other written agreement. Doing so would give rise to legal and reputational issues. It was not suggested by Ms May or any other witness that Aurora permitted anyone other than Ms Mitchell to undertake a work trial before commencing paid employment.
6. Contrary to Ms May's attempt to discredit Ms van Wyk by asserting that she had a problem with alcohol and "was drunk at work all the time",[88] I accept Ms van Wyk's evidence. She was an impressive witness who had a good recall of events. The text messages that passed between her and Ms May, the provenance of which was not challenged by Ms May, establish that Ms Mitchell was not performing work in any capacity for Aurora on 2 May 2022. It was not until 3 May 2022 that Ms van Wyk sent Ms May a text message to see if Ms Mitchell was still interested in working at Aurora as per their earlier exchange. That evidence alone is enough to defeat the assertion that a fall occurred on 2 May 2022. Ms May did not discover the text messages between her and Ms van Wyk despite their obvious relevance.
7. I accept Ms van Wyk's evidence that Ms May told her that her neck and shoulder had been sore for a while prior to May 2022. The comment is consistent with Ms May's history to Dr Adhikary. Ms van Wyk commenced working at Landour Park in February 2022 so the comment was likely made between February and April 2022.
8. To the extent that Ms Tran may have suggested that Ms van Wyk underwent performance management, I do not accept that evidence in the absence of documentary corroboration. I accept Ms van Wyk's evidence on the issue. Ms Tran's answers to questions on this issue were tentative and defensive. Ms Tran had been successfully challenged about the accuracy of some of her answers before the subject was raised. Ms Tran worked in Melbourne and had no day-to-day involvement with Landour Park. It was apparent from her evidence that she did not appreciate what the day to day operation of Landour Park involved. I accept Ms van Wyk's evidence that she was transferred to another Aurora farm at the end of May 2022 and not pushed into leaving employment with Aurora as Ms May implied. Ms May might have said what she did because Ms van Wyk ceased working at Landour Park in May 2022. However, Ms van Wyk was not dismissed. She was transferred to run another Aurora farm. If she was drunk or drinking alcohol at work or being performance managed, it would be unusual to give her that responsibility. Having heard Mr van Zyl give evidence, I doubt he would tolerate any of those behaviours. I am satisfied that Ms van Wyk was not demoted or dismissed. To the extent of any conflict between the evidence of Ms Tran and Ms van Wyk, I prefer the evidence of Ms van Wyk. There is no support for Ms May's assertion that Ms van Wyk attended work when drunk or that she drank alcohol at work from any other witness. Ms Tran denied the assertion, and none of the witnesses Ms May called, including her son and daughter, supported the assertion. I find the assertion was invented by Ms May to attempt to discredit Ms van Wyk because her evidence was damaging to Ms May's case.
9. Counsel for Ms May submitted that the lack of any evidence of a report of the fall and injury sustained by Mr Potgieter indicated that the shortcomings in Aurora's injury reporting system. Mr Potgieter was not called to give evidence. It is not clear whether his injury was recorded. It is clear that Mr van Zyl did not know about Mr Potgieter's injury, as counsel submitted, but that is not surprising. Mr Potgieter may not have wanted to make a claim. Mr van Zyl had oversight of all the rural properties operated by Aurora in the Mount Gambier region. He may not have been aware of the granular detail of what took place at Landour Park.
10. It was also submitted that Mr van Zyl had destroyed his notes of safety meetings. Mr van Zyl said that he did not destroy his notebook. When that was put to Mr van Zyl he said there was no destruction and he did not have a notebook as such but made instead made notes "on pads everywhere".[89] Counsel pointed out that Mr van Zyl's affidavit described a notebook and that Mr van Zyl had said that his note of the toolbox meeting had been disposed of.
11. There were parts of Mr van Zyl's evidence that were based on surmise and assumption. I formed the view that his note taking was haphazard and incomplete. Ms Tran's evidence was also unsatisfactory in some respects as already discussed. The evidence of Mr Davey and Ms van Wyk was very good, and much better than that of Ms May and Ms Mitchell. Mr Davey and Ms van Wyk worked day to day at Landour Park. Mr van Zyl and Ms Tran did not.
12. Ms May's complaints about the shortcomings in the evidence of some of the witnesses called by Aurora would assume significance if I had some confidence in her evidence and the evidence of Ms Mitchell. For the reasons given, I do not have that confidence and am not satisfied that Ms May fell over a hose and injured her neck or left arm on or about 2 May 2022 or on any other date. There was a fall in July 2022 but Ms May does not assert that it injured her neck or left arm.
13. I reject the evidence of Ms May and Ms Mitchell that Ms Mitchell was present at the time of, or very soon after, the alleged fall of May 2022. The Corporation submitted that Ms May contacted Ms van Wyk about her record of events and made a claim after Dr Han, the Melbourne neurosurgeon that Ms May was referred to, told her that he could not see her in his private practice because she had insufficient health insurance. It is not necessary to make a finding that there was collusion or concoction. There may be another explanation for what occurred. However, as collusion and concoction are possible explanations for what has occurred, I will consider the degree of satisfaction required to make findings in a case like this having regard to Briginshaw v Briginshaw.[90]
14. Briginshaw concerned an allegation of adultery made in a petition for divorce. The Court explained that in some cases, while the civil standard of proof applies, a higher degree of satisfaction may exist in relation to making certain findings. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[91] the High Court explained the Briginshaw principle:[92]

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'.[93] Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (Most citations omitted)

1. The evidence supports rejecting Ms May's account that she injured her neck and left arm in a fall at work in or around May 2022. Ms May was an unreliable and unsatisfactory witness who not infrequently appeared to invent answers and maintain propositions that were not tenable. It is clear that Ms May reported neck and left arms symptoms prior to May 2022. However she claimed the medical records were unreliable and had been tampered with. There is no basis for that allegation. The far more likely explanation is that her neck condition pre-dated the alleged fall of May 2022 which I have found was the case. The instance where her counsel conceded a factual issue that she would not concede is another example of her maintaining an untenable proposition.
2. The following findings satisfy me to a standard higher than the balance of probabilities that Ms May's claim that she had a fall at work on or about 2 May 2022 that caused injury to her neck and left arm should be rejected.
3. Ms May had neck and left arm symptoms prior to May 2022. I reject Ms May's evidence that she did not report injuring her neck or arm to a doctor for fear of losing her job for the reasons given above. That was an invention. Ms May told Dr Adhikary about an alleged fall on 20 December 2022 and her history to doctors in relation to the work injuries she had in February and March 2023 show she was not reluctant to report work injuries.
4. Ms May did not mention injuring her neck or left arm from a fall in May 2022 to anyone at Aurora other than her son and daughter and potentially Ms Redding. The three all admitted that they may be confused about dates. I find that Ms Mitchell, Mr Amos and Ms Redding all conflated what Ms May said about an alleged fall in May 2022 with her July 2022 fall. The discrepancies between the accounts of Ms Mitchell and Ms May about the circumstances of the alleged fall cast further doubt on their evidence.
5. Just before Ms May gave notice of the injury and made a claim, she asked Ms van Wyk when Ms Mitchell commenced working for Aurora. When the date Ms van Wyk provided did not suit the date Ms May had arrived at with Dr Wallingford, Ms May told Ms van Wyk that Ms Mitchell performed unpaid work before commencing her employment. Ms van Wyk disagreed. I accept the evidence of Mr Davey and Ms van Wyk that Ms Mitchell did not commence performing any work for Aurora on 2 May 2022 or on any date before her employment commenced on 16 May 2022.
6. When Ms May told Dr Adhikary on 14 June 2022 that there was no trauma or injury that had caused her neck symptoms she was telling the truth.

1. Counsel for Ms May submitted there is no doubt that the trailer lifting incident of 26 March 2023 occurred. He appeared to accept that the incident would assist Ms May's case if it materially aggravated the neck and left arm symptoms,[94] which he said it did. Counsel submitted that Ms May ended up attending hospital with her lower back symptoms and with a flare up of neck pain. It was submitted that Ms May's incapacity for work results from the second incident.[95]
2. The Corporation submitted that the 26 March 2023 incident resulted in a temporary injury to Ms May's lower back and nothing more.
3. Ms May reported the 26 March 2023 incident to Amy Whitty on 28 March 2023. In the report Ms Whitty recorded that Ms May had done something to her "left shoulder neck area and now have pain and a shock sensation in that area".[96] On 20 February 2023 Ms May had reported to her GP that she worked on a farm and a calf had headbutted her between her legs with a slight graze being the result.[97]
4. Ms May's consultation with Dr Lopa on 3 April 2023 records the presence of C6 radiculopathy and states:[98]

-Experiencing left sided neck pain [sic] along with left UL pain for couple of months

-Reported some tingling/numbness

-Also recently pain in left lower limb

-Had CT guided steroid injection at C5/6 3 mo back with some improvement

-Recently pain getting worse

-Ref was sent to Neurosurgeon in past however as didnt have private health insurance couldnt see-> waiting for another one in Adelaide

-Saw physiotherapist and was advised to take surgical opinion

1. On 8 April 2023 Ms May attended the Mount Gambier Hospital Emergency Department. The principal diagnosis made was: "Sprain and strain of lumbosacral [joint] [ligament]."[99] The PC, which I take to mean presenting complaint, was: "Lower back pain".[100] Below that the HOPC, which I take to mean history of presenting complaint, was stated to be:[101]

Lifted heavy object ( Trailer ) on to the ute and experienced pain in the left shoulder and back

Went to see the GP and took a few days off work

1. A description of the radiology taken on 25 May 2023 follows the note. Presumably that part of the entry was added to after the consultation.
2. Ms May saw Dr Wallingford again on 14 April 2023. He recorded "chronic left neck pain with radiculopathy" and "[a]cute back pain, lumbo-sacral".[102]
3. Ms May also lodged her claim for compensation on 14 April 2023.
4. Ms May claims that her neck and left arm symptoms were aggravated in the 26 March 2023 incident. The Corporation contends otherwise and that the claimed aggravation is part of Ms May's scheme to fund the neck surgery she required by making the claim.
5. I find that Ms May presented to doctors in April 2023 because of the lower back strain she had on 26 March 2023. However, Ms May also mentioned her neck and left arm symptoms. It is possible that the lower back strain may have aggravated the neck and left arm symptoms but for the reasons that follow, I find that any aggravation was temporary and does not produce any entitlement to any compensation.
6. Ms May's cervical spine condition pre-existed her employment with Aurora. As there was no fall and no work-related injury or aggravation to the pre-existing neck condition in or about May 2022, Ms May must prove that the March 2023 incident aggravated or exacerbated her neck and left arm symptoms to an extent that creates an entitlement to weekly payments.
7. Ms May had been told that surgical intervention might be required to treat her neck and left arm symptoms well before March 2023. On 8 November 2022, Dr Milne recorded that a corticosteroid injection should be tried. His note reads, "if not improvingthen [sic] neurosurgery review of cord compression +/- disc extraction".[103] On 12 December 2022 Dr Lopa wrote a referral letter to Dr Han, a Melbourne neurosurgeon. On 20 December 2022 Ms May was teary during her consultation with Dr Adhikary when recounting her neck and left arm symptoms and the difficulty they were causing her.
8. Contrary to the submission made on her behalf, Ms May had an incapacity for work by at least the latter part of 2022, and quite possibly prior to May 2022. Ms Redding assisted Ms May with some of her tasks by late 2022. Ms May submitted certificates stating she was not fit for her normal duties in the latter part of 2022. Steroid injections and medication had failed to relieve the symptoms. Surgery was under active consideration. Ms May was not fit to perform her normal duties by no later than 1 November 2022.
9. Ms May saw Dr Wallingford about the 26 March 2023 incident on 14 April 2023. She stated that she was "coping ok", but over the weekend her pain spontaneously increased.[104] I find that the pain Dr Wallingford was describing in that section of his note was Ms May's lower back pain. The comments that follow pertain to the back. However, in the next paragraph, and commencing with "2)", Dr Wallingford describes continuing neck pain and pins and needles.[105] His impression of the neck presentation was a flare up of C6 cervical pain with radiculopathy. He advised that a repeat CT guided nerve root injection should be performed and that a neurosurgeon should conduct a review. He described contacting a claims handling agent as the injury was "work cover related".[106]
10. To the extent that Dr Wallingford and Mr Carney may have suggested that the March 2023 incident gave rise to an incapacity for work because it aggravated Ms May's underlying neck condition, they based that view on Ms May's history. For the reasons already given, I am not prepared to rely on that history. Both doctors were told, and accepted, that there had been a neck injury in May 2022 that was aggravated in March 2023. I have found that no neck injury occurred in or around May 2022 and as said, the evidence shows there was an incapacity for work and a need for surgery before the March 2023 incident. I am not satisfied that there was any aggravation or exacerbation of Ms May's neck and left arm symptoms as a result of lifting a trailer in the course of her employment on 26 March 2023.

1. I make the following orders:
   1. The decision of the respondent dated 4 August 2023 rejecting the applicant's claim for compensation dated 14 April 2023 is confirmed.
   2. The parties have liberty to apply to seek any further order.

[1] Exhibit T1, Trial Book (TB), Affidavit of Rebecca May, 15 December 2023 [85] (First affidavit).

[15] Exhibit A1, Affidavit of Rebecca May, 29 October 2024 [10.1].

[55] Exhibit A2, Affidavit of Cassie Redding, 14 October 2024 [7].

[62] TB, Affidavit of James Davey, 20 March 2024 [6]-[11].

[64] TB, Affidavit of Amy Whitty, 13 March 2024, annexure ALW-12, 406.

[67] Ibid 333 [87] and annexure ALW-9, 394.

[68] Exhibit OP2, Affidavit of Michelle van Wyk, 11 November 2024 [23]-[24].

[85] TB, Affidavit of Monique Mitchell, 15 December 2023 172 [23].

[90] [1938] HCA 34; (1938) 60 CLR 336.

[91] [1992] HCA 66; (1992) 110 ALR 449.

[92] Ibid [2] per Mason CJ, Brennan, Deane and Gaudron JJ.

[93] Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521.