1 Kerry June Filliponi, the respondent, made application under s 134AB(16)(b) of the Accident Compensation Act 1985 ('the Act') for leave to issue a proceeding for the recovery of damages in respect of injuries allegedly sustained in the course of her employment with the appellant, Murray Goulburn Co-op Co Limited. The application was heard in the County Court sitting at Wangaratta by Judge Kings on 1 and 2 August 2011. The respondent relied upon a neck injury and a left shoulder injury, each of which she claimed satisfied paragraph (a) of the definition of 'serious injury' contained in s 134AB(37) of the Act. The application was made in respect of pain and suffering damages only.[1]

2 On the hearing of the application, the respondent relied upon affidavits she swore on 2 March 2010 and 17 June 2011. The respondent was then cross-examined and subsequently re-examined. Additional material was tendered to the Court by both parties consisting of medical reports, radiology reports, clinical notes, a WorkCover claim form, a notice of accepted injuries, a DVD surveillance film, a schedule of surveillance undertaken of the plaintiff and Facebook photographs of the plaintiff. Additionally, the appellant tendered an affidavit of Denise Joy Chasemore,[2] setting out a chronology of the respondent's employment with the appellant, taking issue with parts of the respondent's description of her employment duties and identifying various documents upon which the appellant intended to rely in any legal proceeding that might be brought by the respondent.

3 Judge Kings granted the respondent's application in respect of the respondent's claimed neck injury, but not the left shoulder injury. Her Honour delivered written reasons for judgment on 10 October 2011. On 18 October 2011, her Honour made an order in the following terms:

The plaintiff is granted leave to bring proceedings for non-pecuniary loss damages with respect to injury suffered in the course of employment with the defendant pursuant to s 134AB(16)(b).

4 By notice of appeal filed 21 October 2011, the appellant seeks to have the judgment and orders of her Honour set aside and judgment entered in its favour; alternatively, that the matter be remitted to the County Court for re-determination before a differently constituted court in accordance with s 74(3) of the County Court Act 1958.

5 In its notice of appeal, the appellant identified the grounds of appeal as follows:

(a) failing to determine;

(b) alternatively, failing to state any appropriate analysis of the relevant evidence and path of reasoning in determining -

the nature of the 'injuries' found to have been suffered by the Respondent.

1. Her Honour erred at [58] in finding that the Respondent's 'injuries' were 'organically based', in that -

(a) her Honour failed to determine, alternatively failed to state any appropriate analysis of the relevant evidence and path of reasoning in determining the nature of the 'injuries' so found;

(b) her Honour dismissed the evidence of non-organic functional overlay by reference to the irrelevant consideration that there was no evidence from a psychiatrist;

(c) her Honour implicitly found at [62] that there was a psychiatric or psychological condition with consequences for the Respondent and did not explain how it was that this could be reconciled with the finding that the 'injuries' were 'organically based'.

1. Her Honour erred at [62] in stating that consequences of a psychiatric or psychological nature had been excluded, in that -

(a) her Honour failed to find and state the nature of the psychiatric or psychological condition and its consequences;

(b) her Honour failed to find and explain how any such consequences were affected by the earlier finding at [51] that the Respondent had 'exaggerated the consequences of her injuries';

(c) her Honour failed to identify the consequences said to have been excluded.

1. Her Honour erred at [69] in placing heavy reliance upon the report of Associate Professor Bittar and finding that 'the consequences referred to by Associate Professor Bittar are the consequences that she [the Respondent] told the Court and doctors about', in that -

(a) the medico-legal report of Associate Professor Bittar accepted that the Respondent suffered aggravation of cervical spondylosis and excluded functional overlay, but did not adequately explain why this was so;

(b) the medico-legal report of Associate Professor Bittar relied upon the Respondent's claims of restriction in social, domestic and recreational activities, all of which had been significantly qualified and diminished in the Respondent's oral evidence;

(c) her Honour failed to find and explain how it was that the claims to Associate Professor Bittar of restriction in social, domestic and recreational activities were not affected by -

(i) the Respondent's oral evidence, which significantly qualified and diminished the claims of restriction in social, domestic and recreational activities apparently made to Associate Professor Bittar;

(ii) her Honour's earlier finding that the Respondent had 'exaggerated the consequences of her injuries'; and

(iii) the Respondent's claimed consequences of left shoulder injury, which her Honour found not to be a serious injury;

(d) Her Honour did not resolve or adequately reason in respect to the manner in which the medico-legal opinion of Associate Professor Bittar should be viewed and findings made in light of the whole of the evidence and especially the oral evidence of the Respondent and the reports of the various other medical practitioners.

1. Her Honour erred in finding at [72] that the Respondent had been receiving treatment since September 2005, a period of six years, which finding either significantly overstated or did not adequately identify and explain the evidence concerning the level and absence of any constancy in the Respondent's medical treatment since September 2005.
2. Her Honour further erred at [72] in taking into account that the Respondent was not working, in that -

(a) the Respondent made no claim in respect to loss of earning capacity;

(b) in opening her Counsel had fairly conceded that 'the consensus of the medical opinion is that she has some capacity for modified duties' (T4);

(c) the evidence before her Honour was not such that the failure of the Respondent to work could be accepted as a pain and suffering consequence, particularly in circumstances where her Honour had earlier accepted that the Respondent's claimed consequences were exaggerated.

1. Her Honour erred in concluding at [76] that the surveillance film was not incompatible with the claimed impairment to the neck, in that -

(a) her Honour had earlier found (at [19]) that the Respondent had conceded that the film showed her using her neck without restriction;

(b) the film demonstrated the confidence of the Respondent in physical movement, which contradicted her claims of pain and restriction and inhibition in activities due to apprehension of pain and restriction upon activity;

(c) her Honour had earlier found that the Respondent had 'exaggerated the consequences of her injuries'.

1. Her Honour further erred at [76] in finding that the evidence of 'consequences to the plaintiff satisfy the test [of serious injury]', which ultimate finding was compromised and erroneous by reason of the errors of conclusion and inadequacy of reasoning identified in these grounds of appeal.
2. Pursuant to s 134AD of the Accident Compensation Act 1985, the Court of Appeal should decide that the Respondent has not suffered a serious injury.

Ground 9: Section 134AD of the Accident Compensation Act

On the hearing of an appeal to the Court of Appeal from a decision made on an application under s 134AB(16)(b), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of Court.

7 In Dwyer v Calco Timbers Pty Ltd[3] the High Court held that the requirement that the court 'decide for itself' whether the injury was a serious one made it unnecessary to establish a 'specific error' on the part of the trial judge, in order for an appellant to succeed on appeal.[4] Ground 9 reflects that requirement, although the terms of the notice of appeal and the parties' written submissions focus largely on alleged 'specific errors'. However, after the filing and serving of the parties' outlines of submissions, the appellant abandoned ground 9 on the basis that s 134AD was repealed prior to the issuing of the originating motion in the County Court.

8 Section 134AD was repealed on 10 December 2009. The injury the subject of this proceeding occurred prior to that date. However, as we have said, the respondent commenced her proceeding in the County Court after that date. On the notice of appeal as originally filed and served, an issue arose as to whether the repealed s 134AD had application in this case. However, the parties are now content to proceed on the assumption that, because of its repeal prior to the commencement of the proceeding below, s 134AD has no application to the appeal before us. Notwithstanding the arguments that might be made in respect of this issue, we are content to adopt the position taken by the parties.[5] Accordingly, this appeal falls to be determined by reference only to grounds 1 to 8.

9 The approach which this Court should take in considering an appeal against a trial judge's decision, following repeal of s 134AD, is discussed under ground 8.

10 At the time of the application, the respondent was aged 54. She gave evidence that she left Swinburne Technical School in Form 2, although she later went back to school and completed Form 3. After leaving school, she did a variety of manual jobs, including working in factories and shops and as a cleaner. She said she had always been in employment, except when her two children were young.

11 The respondent started work with the appellant in 1999 as a reliever operator in the cheese room. Her duties involved cheese packaging, cheese inspection, operating a machine and cleaning. She gave evidence that, prior to working for the appellant, she had no neck or shoulder problems and enjoyed an active social and recreational life.

12 The respondent gave evidence that she may have had some neck and left shoulder pain in about 2001, as a result of which she was given light duties for a few days. However, she said that she recovered and had no problem after this until she developed pain in her neck, left shoulder and arm in September 2005. In her affidavits, the respondent said that she attended Dr Hill, who put her on light duties. She then attended Dr Chehade, who put her off work for a while, before she returned to work on modified duties. She gave evidence that with further work in 2006, her neck and left shoulder worsened. She had further treatment. She last worked for the appellant in July 2007.

13 In her affidavit sworn 2 March 2010, the respondent described her pain and restrictions as follows:

I am left with a constantly stiff and painful neck and left shoulder. My symptoms vary depending upon my level of activity. I suffer daily headaches, in particular from the back of my neck in to my head, which only seem to be assisted by morphine. If I rest and take medication and move gently, my symptoms ease a bit, whereas with activity they get worse. If I hang out the washing I suffer increased pain, and likewise if I use a cobweb broom. If I do try vacuum cleaning my pain increases so I only do very small bits and then very slowly. I am restricted in the housework I can do, for example I now need a trolley to move pots. My cooking is restricted, I have difficulty lifting pots and pans, and even a full kettle aggravates my symptoms. Prolonged standing seems to increase my pain. I cannot wear high heel shoes and now only wear thongs and runners. I am limited in the lifting and carrying I can do because of loss of strength in my left arm and pain and stiffness in my neck and shoulder. I am restricted doing things with my arms raised. Driving seems to increase my neck and shoulder stiffness, and that also hinders my driving. I use the mirrors more now when driving and if I drive to Melbourne, need to stop and have a break to stretch and try and get more comfortable. I can no longer carry heavy bags when shopping because I get a pulling sensation and increased pain in my neck and shoulder. So now I do my shopping in small bursts and tend to use a trolley more. I have a 15 month old grandson and am restricted in activities with him which upsets me greatly. I can no longer ride horses, go camping or water ski which were all things I passionately loved before I was injured. I still walk my dog, but not as quickly or as far as I used to because I just don't feel up to it. I have become grumpy, irritable, short tempered and depressed because my life has been ruined by my injuries. I used to enjoy work and an active life, was always on the go, but this has all gone now. My future seems to be dismal. I was put on to anti-depressants about 6 months ago, but I hope not to have to take them for too long. I also want to try and stop taking morphine if I can. My sleep is usually very poor because of pain and discomfort, whereas previously I was a very good sleeper. This means that I am often very tired during the day and I often sleep during the day which I never used to do.

14 In her affidavit sworn 17 June 2011, the respondent gave further evidence concerning her levels of pain and restrictions as follows:

I continue to suffer left shoulder pain, worse with use, movement and activity. For example the pain increases if I elevate my left arm or if I have to stretch it forwards. The pain is constant and is in the shoulder joint. Repetitive use of my left hand and arm also increases the shoulder pain. The left arm feels weak, as if there is a loss of strength. I am continuing to perform home exercises, about which I learned when I attended the pain management clinic, as often as possible, about 4 times a week. To some extent I have been able to obtain a better range of movement, but I still have considerable limitations in respect to my ability to use and utilise and move my left shoulder and arm. For example, I do my bra up from the front, because it is too painful for me to put my arm behind my back. The constant pain I suffer from is a throbbing type pain.

I continue to suffer from chronic ongoing neck pain. I generally feel the pain in the back and sides of my neck, running into the shoulder blades, worse on the left. The pain also radiates into my jaw and ears and can be accompanied by headache. My neck is constantly cracking and creaking with movement, and when it cracks the pain increases. The pain at times can be severe. I have limitation of movement of my neck on both sides. The neck pain is constant and made worse by certain activities, for example the pain in my neck increases if I turn my head around quickly or when looking up, such as when I have to hang up the washing or reach into an overhead cupboard, which activities are consequently difficult for me.

Further, I have difficulty getting to sleep and quite often I awake during the night with pain in my left shoulder and neck which radiates to the back of my head with headache. When this happens I often take a Panadol Osteo or Valium to help get back to sleep. This will usually take about at least ½ an hour or so.

...

As a result of the injuries I have sustained to my left shoulder and my neck, I remain limited or precluded in the performance of a wide range of household, domestic, social and recreational activities. For example, before suffering injury I immensely enjoyed horse riding. I owned 2 horses and would go horse riding almost weekly, around the block and down to the river. I would go trotting and cantering. I enjoyed this a lot, and had been horse riding ever since I was a teenager. In addition to riding the horses, I had no problem caring for and looking after them. This included moving about bales of hay and bags of feed. I was able to carry around the heavy saddles and place these on the horse's back. I was able to crouch and stoop in order to check the horse's feet. This has now stopped because of my pain and restrictions. I only have the one horse now ... . I haven't been riding him since my injury. Now I just try walking him. There is no way I could go trotting or cantering with him. It is too difficult to prepare the horse in the first place, let alone ride him. I would have difficulty raising my right arm to ensure the bit was between his teeth. I would have the same problem getting the saddle onto him. Even walking the horse results in jarring of my neck. I also suffer from lack of strength in my left arm which makes it difficult to hold onto the reins. Consequently it has been a long time since I went riding. Nowadays it is my daughter who rides the horse.

Similarly, I now no longer go water skiing, an activity which I really enjoyed in the summer months in the past. We used to own a boat. We still do but nowadays it is just sitting there ... collecting dust. During summer we would go down to the river almost every week in order to go water skiing. The kids loved it as well. Now I can no longer do this, even though I would love to. We also enjoyed going camping down the river. We would do this in a bus which was all decked out for camping. The work involved with this would be difficult for me now. Prior to suffering my injury I also enjoyed spending time in the garden. I had a veggie patch and would do the digging and the planting. I no longer am able to dig and I no longer have a veggie patch. I also have difficulty pruning, for example the roses at my mother's house.

Chores around the house have also been impacted upon, in particular hanging the washing on the clothes line, washing, vacuuming, scrubbing the shower and bath and making the beds. I am also restricted in doing the cobwebs. This is the case both at my mother's house and my husband's house. Although I have moved out I still spend time there at my husband's house.

15 The respondent was cross-examined at some length. During the course of cross-examination, she was asked how high she could lift her left arm above shoulder level. She said that she could not extend her left arm straight up above shoulder level.

16 Further, during cross-examination, a 21 minute DVD consisting of surveillance of the respondent, taken on 4 June 2011, was played. The DVD showed the plaintiff lifting her young grandchild and holding him in her left arm for a few minutes. It also showed the plaintiff with her left arm extended upwards, holding (or in contact with) the open bonnet of a motor vehicle. Additionally, it showed her with her hands on the rear of a car along with a group of other people who were attempting to push it. It was not possible to perceive how much force she was exerting. All of the above activities occurred for very short periods.

17 Much was made of the surveillance DVD by the appellant at first instance. We have viewed the DVD. Like many surveillance DVDs, it is capable of being viewed as inconsistent with some of the evidence previously given. However, again, as in many cases, much depends upon what the trier of fact makes of the evidence of the plaintiff (respondent). The judge below described the DVD[6] as follows:

The Court was shown a video of the plaintiff taken over 30 hours in 2010 and 2011. She was only observed in 2011 over a period of 5 hours. All that can be inferred from the 30 hours of surveillance is that on five hours the plaintiff was sighted. I accept that a video is a snapshot in time and that a plaintiff with injuries, as the plaintiff described, may have days when she is able to do more activities than on other days. The video showed the plaintiff lifting her grandson, who was aged three. It showed her pushing a vehicle with both arms extended, admittedly with the assistance of a number of men. It also showed her leaning or stretching out her arm, in a position that she had indicated in Court was not possible.

18 Judge Kings commenced her judgment by identifying the issue and setting out some relevant principles. In setting out relevant principles, her Honour correctly:

(b) noted that psychological or psychiatric consequences of a physical injury are not to be taken into account for the purposes of paragraph (a) of the definition of 'serious injury';

(c) noted that pain and suffering consequences which could not be shown on the balance of probabilities to have an organic or physical basis had to be excluded; and

(d) observed that the claimed left shoulder injury could not be aggregated or combined with the claimed neck injury.

19 Having noted the appellant's submission that this was a 'range case' where the appellant submitted that 'the consequences of the [respondent's] injury do not meet the test of seriousness for pain and suffering, in that they could not be considered 'as being more than significant or marked and as being at least very considerable' when considered to other cases in the range', her Honour proceeded to set out in some detail the plaintiff's evidence and the relevant radiological evidence. Having done this, her Honour then summarised the plaintiff's medical evidence as follows:

1. In a letter of 11 June 2009, Mr Ian Critchley, orthopaedic surgeon, reported to the plaintiff's solicitor that he had seen the plaintiff at the request of her general practitioner in April 2007. On examination, the range of motion of her spine was significantly reduced in all directions by pain. Her left shoulder had a reasonable range of motion, but a positive impingement sign was present also in the right shoulder. There was no significant local tenderness. It was his view that the plaintiff had a physically demanding job and had been having symptoms in both her shoulders and her cervical spine, as a result of the heavy nature of her work, without any specific pathology.
2. He noted that she had a recent injury with a fall on the point of her shoulder, which he thought had injured her AC joint. He did not expect her to have long-term problems with her AC joint injury. He expected that the majority of her symptoms would settle if she stopped handling 20-kilogram boxes of cheese.
3. In September 2007, Dr Philip Frawley, orthopaedic surgeon, saw the plaintiff at the request of her general practitioner in relation to her left shoulder. He noted that the pain had been present for two years and was exacerbated in April when she had a fall and landed on her left shoulder. He noted that she was quite tender over her rotator cuff insertion laterally. He said her active movement was slightly restricted in all directions secondary to pain; loading her supraspinatus reliably reproduced her pain. The other elements of her shoulder appeared to be intact. He said her neck demonstrated a full range of pain-free movement. He reported that the x-rays of the shoulder looked normal. He suspected that the plaintiff had a rotator cuff tendon tear in her left

shoulder and referred her for an MRI scan in order to provide a comprehensive opinion regarding her problem.

1. In March and April 2008, Mr Terrence Hillier, orthopaedic surgeon, saw the plaintiff at the request of Dr Frawley in relation to her neck injury. He said that the plaintiff had quite free movement of her shoulder and the rotator cuff issue was in reasonable abeyance. He said she had discomfort as she extends her head, suggesting that she may be getting some chronic apophyseal joint pain. He arranged to have a weight-bearing MRI scan performed, which demonstrated that she had a sound structure in her cervical spine. He said that her neck had tightened up at the C5-C6 level, with loss of normal cervical lordosis, consistent with her having developed some adhesive capsulitis. He thought the only way to unlock this was to carry out a rotational stretch under a general anaesthetic, which would require a stay in hospital for some two days. The plaintiff sought a second opinion from Mr Richard Bittar, who did not approve of the treatment and, accordingly, the treatment was not pursued.
2. Mr Hillier reported in June 2010 that the latest MRI scan was pleasing and confirmed that at no stage had the plaintiff suffered any structural damage to discs, cervical spinal cord or the vertebral bone. He felt this fitted with his ongoing diagnosis of a longstanding, chronic soft tissue injury which has seen her tighten up in the neck. In a report to her general practitioner on 1 September 2010, Mr Hillier felt, with conservative treatment, she should improve. He added Lyrica to her medication.
3. In February 2011, Mr Hillier reported to the plaintiff's solicitor that he had not seen the plaintiff since September 2010. He was satisfied that her cervical spine was structurally sound. He said she had a basal neck pain, suggesting some persisting adhesive capsulitis in the lower facet joints, and noted that she had relatively good neck movement. He thought she was capable of performing her normal work.
4. On 10 September 2010, Dr Alfred Chehade, general practitioner, reported to the plaintiff's solicitor. He said the investigations, in particular the MRI, showed no structural damage to the discs, cervical spine tract or the vertebral bone. He adopted Mr Hillier's diagnosis of longstanding chronic soft-tissue injury. It was Dr Chehade's view that the plaintiff's left shoulder and neck pain were work-related, that she could not return to pre-injury duties and, after a long period of time not working, it was uncertain whether she would undertake any light or suitable duties.
5. Mr John O'Brien, orthopaedic surgeon, saw the plaintiff at the request of her solicitor in November 2008 and August 2009. In November 2008, he noted that the plaintiff had undergone a number of investigations without any specific diagnosis and she was not responding to conservative treatment. He said her physical signs were subjective and predominantly related to the cervical region, although there was some variable restrictions of movement and definite extensive area of local tenderness. He could not find specific shoulder pathology. He described her as suffering a Regional Pain Syndrome of the neck, left shoulder and arm pain. He thought the plaintiff required management of her chronic pain and suggested a multidiscipline pain management program. He thought it highly likely that the plaintiff was totally and permanently incapacitated. He said the plaintiff's general activities are significantly restricted and there was permanent limitation of domestic, social and recreational pursuits.
6. In August 2009, he said that her physical signs remained subjective and did not demonstrate clear definitive pathology in the cervical spine, lumbar spine, or shoulder. Further, the symptoms and signs demonstrate a Chronic Pain Syndrome which was being influenced by psycho-social factors. He thought her prognosis was relatively poor. He noted that the plaintiff described a substantial distribution of pain, which really indicated a significant level of disability. He thought it was possible her situation was permanent, although he was optimistic of a positive result from a multidiscipline pain management program, which would enable her to contemplate light duty employment on a limited hours basis. He thought she was restricted in her general, domestic, social and recreational activities, which was likely to be a permanent situation.
7. On 20 May 2011, Mr Kenneth Brearley, surgeon, medically examined the plaintiff at the request of her solicitor. On examination, he noted no tenderness or deformity in the neck and said she had a full range of movement. In relation to her left shoulder, he said there was no obvious wasting. There was moderate limitation of movement and the remainder of her left arm was normal. There was no neurological defect in either arm. It was his opinion that there was little concrete evidence to substantiate a diagnosis of her left shoulder pain or the pain she had in the neck. He noted that all investigations showed no significant abnormality. He thought it was probable she had a softtissue injury of the neck, resulting from repetitive trauma caused by heavy work with her employer. He said, in relation to the left shoulder, there was no tear of the rotator cuff, nor any other significant finding other than tendinopathy. He thought the tendinopathy would have been produced over a long period by repetitive minor or minimal trauma, which would have been caused with the work she was doing with her employer. He accepted that the left shoulder and neck injuries would have precluded her in relation to her social, domestic and recreational activities, which are likely to continue for the foreseeable future. In coming to this assessment of the consequences of the plaintiff's injury, Mr Brearley combined the two injuries, which is not permissible. He thought her prognosis was reasonably good and he said there was no good reason why she should not be able to return in the foreseeable future to suitable work, initially part time, and possibly increasing to full time.
8. In July 2011, Associate Professor Richard Bittar saw the plaintiff at the request of the plaintiff's solicitor. It was his diagnosis that the plaintiff had symptoms related to aggravation of cervical spondylosis and cervicogenic headaches. He noted that she had a left shoulder condition, which was beyond his area of expertise. He thought her work was the significant contributing factor. It was his view that she would suffer from ongoing pain and disability into the foreseeable future. He thought she needed further investigation and treatment by a pain specialist. He thought her headaches may be amenable to occipital nerve stimulation.
9. It was his view that domestic activities are limited. She cannot engage in significant cleaning (vacuuming and scrubbing) and her ability to engage in gardening is limited. She socialises less due to pain. He said she no longer horse rides, water skis or camps. Her physical cervical spine injury and impairment did restrict the plaintiff in relation to social, domestic and recreational activities, which he thought would continue for the foreseeable future. He thought she would be precluded or restricted in relation to her employment or activities involving lifting, standing, as well as repetitive sudden or extreme neck movements. He considered that such incapacity will continue for the foreseeable future. He thought, in theory, she had a physical capacity to perform sedentary work on a part time basis. However, taking into account her age, education, training and skills, it is extremely unlikely that she will be able to procure such a position and carry out such a role in a regular and reliable fashion.

20 Having summarised the plaintiff's medical evidence, her Honour then summarised the defendant's medical evidence in the following terms:

1. Dr James Rowe, specialist occupational physician, saw the plaintiff at the request of the defendant's insurer in November 2005. It was his opinion the plaintiff had bilateral rotator cuff tendonitis and aggravated degenerative osteoarthritis of the cervicothoracic vertebrae. He noted that the injury had occurred over approximately eighteen months. He thought her work was a contributing factor and thought she could return to work immediately.
2. In March 2007, he noted she was working full-time. He did not think she required ongoing treatment, apart from an occasioned analgesic and five or six massages per year. He thought her condition had improved considerable since he last saw her. Dr Rowe reviewed the plaintiff in March 2007. He thought it was within her capacity to lift a 10-kilogram block from the production line or from the floor to the production line.
3. Mr Paul Kierce, orthopaedic surgeon, performed an assessment on the plaintiff in September 2008. He diagnosed a left rotator cuff tendinopathy and aggravation of minimal cervical spondylosis. He accepted her injuries were work related. He said the pain resulting from her shoulder condition and neck condition has incapacitated her in respect to her work duties and has affected her ability to do her housework and to resume horse riding. He considered the left shoulder condition, together with the right shoulder and neck disorders, prevented her from returning to her pre-injury employment. He thought she had suffered an aggravation of minimal underlying cervical spondylosis. He said ninety per cent of her symptoms of neck pain were due to her employment injury.
4. In December 2009, Mr Michael Shannon, orthopaedic surgeon, saw the plaintiff at the request of the defendant's insurer. He noted that the plaintiff had sustained soft tissues injuries to her neck, left shoulder, girdle and left wrist.
5. Mr Ian Jones, orthopaedic surgeon, saw the plaintiff at the request of the defendant's solicitor in June 2010 and again in July 2011. It was his view that the plaintiff had disproportionate symptoms of neck pain and restriction of movement. He thought in the left shoulder she had symptoms and signs of mild tendinosis or degeneration of the rotator cuff tendons, with possibly an associated bursitis manifesting as some shoulder pain and restriction of movement. He said the complaints with respect to pain in the left shoulder were out of proportion to the physical findings. He could not identify other factors which would be contributing to the plaintiff's condition. He thought she demonstrated functional signs of impaired neck movement of a severe degree, which he believed had no organic basis. He accepted she had some pain and restriction of the left shoulder movement, but the pain level seemed out of proportion to the pathology evident clinically and radiographically. He thought she had the capacity to undertake certain duties; namely, meter reading, possibly stock taker, export coordinator, sales professional/assistant and unrestricted work as a console operator.
6. In a further report in August 2011, Mr Jones responded to the report of Associate Professor Bittar, who took the view that the x-ray changes were constitutional aging in the cervical spine. Mr Jones said he believed she had recovered from the affects of any possible aggravation. He did not believe her work had caused the MRI scan changes or the symptoms of which she currently complained.
7. The defendant relied upon the clinical records of the plaintiff's general practitioner which extended over the period July 2004 to May 2008. There was a summary of the medication prescribed from February 2003 to December 2008. Prior to September 2005 the plaintiff was being prescribed Valium. The plaintiff was prescribed Valium in January 2004 to September 2005 on seven occasions.

21 Her Honour then dealt with the video surveillance evidence before coming to the credit of the respondent. In terms of the respondent's credit, her Honour said:

1. The plaintiff was consistent in reporting the injury and its causes to doctors whom she saw.
2. On occasions the plaintiff had difficulty in answering questions, particularly in relation to the horses she and members of her family had owned. She was vague in her description of the pain she suffered. The plaintiff did not adequately explain the film. The plaintiff made concessions.
3. I did not form the view she was deliberately misleading the Court, but thought her presentation was due to unfamiliarity with the need to be precise. I took into account the fact that she had very limited education, having left school after form three. Overall I accepted that she was truthful, but I came to the view that she exaggerated the consequences of her injuries.

22 After dealing with these matters, her Honour then conducted an analysis of all of the evidence, and came to a conclusion that the neck injury satisfied the 'very considerable' test in respect of pain and suffering consequences. However, her Honour then went on to hold that the left shoulder injury did not satisfy the test.[7]

23 In ground 1, the appellant makes complaint that her Honour erred at paragraph [52] of her reasons in failing to determine the nature of the injuries found to have been suffered by the respondent; alternatively, in failing to state an appropriate analysis of the relevant evidence and path of reasoning in determining the nature of the injuries found to have been suffered by the respondent. In paragraph [52] of her Honour's reasons, her Honour said that, based on the medical evidence, she was satisfied that the respondent suffered a compensable injury arising out of, or in the course of, her employment with the appellant in respect of the neck and the left shoulder.[8] Her Honour went on to say that all of the medical witnesses accepted the injuries to the neck and the left shoulder were work-related.

24 Ground 1 exemplifies the difficulties that have long been known to exist in respect of serious injury applications where judges are asked to resolve conflicts of expert opinion or other conflicts of fact on the papers without cross-examination.[9]

25 While the Court of Appeal in Barwon Spinners v Podolak,[10] said that '[i]n practical terms, one can scarcely proceed to consider the consequences to the plaintiff of either the injury or the impairment before one has identified precisely the nature and extent of the injury relied upon ...', there will be cases where the evidence does not permit a court to identify with precision the underlying diagnosis said to give rise to the relevant injury. As was said by the Court of Appeal in Georgopoulos v Silaforts Painting Pty Ltd & Ors,[11] '[i]t cannot readily be supposed that Parliament intended that the application of the notion of serious injury depended upon precise medical diagnostic differentiation between the individual components of an injury suffered in the causal circumstances envisaged by s 134AB'.

26 Experience shows that there are often cases where experts disagree upon the underlying cause of the injury. In such cases there is often little that a judge at first instance can do other than either determine whether or not the claimed injury was in fact sustained in compensable circumstances. The present is such a case. As her Honour's summary of the medical evidence discloses, the views of the various medical practitioners as to underlying diagnosis and extent of injury were not uniform.

27 Additionally, it is to be remembered that applications for leave to commence proceedings under s 134AB(16)(b) do not fall to be determined merely by reference to the medical evidence. They fall to be determined upon a proper consideration of all of the evidence tendered in the application.[12] Her Honour's reasons disclose that that is the approach she took. This is, as we have said, the correct approach.

28 Further, applications under s 134AB(16)(b) involve, as has been said before, in large part, matters of value judgment, opinion and impression in which the reasons for judgment may properly be relatively brief and non-exhaustive. What will be sufficient in a particular case will be influenced by the ambit of the dispute at trial. This was, as the appellant submitted below, a range case. It is, as it has been said before, well established that impression and value judgment are highly significant in the determination of s 134AB(16)(b) applications, and in particular those applications properly described as range cases. In some cases, the path of reasoning which led to the ultimate conclusion is necessarily implicit in a sufficiently detailed recitation of the relevant material upon which the decision was based.[13]

29 In our view, the appellant's complaints in respect of paragraph [52] of her Honour's reasons are without merit. The finding made by her Honour at paragraph [52] is well supported by the evidence to which her Honour referred. Further, the extent of her Honour's finding was a necessary consequence of the conflicting written expert opinion tendered at first instance, which the parties chose to leave untouched by cross-examination. It follows that ground 1 must be rejected.

30 In ground 2, the appellant makes complaint about paragraph [58] of her Honour's reasons and the conclusion that the respondent's injuries were organically based. Her Honour's reasons with respect to whether the injury was organically based or not are contained in paragraphs [55] to [58]. Her Honour said:

1. Counsel for the defendant submitted that the plaintiff suffered an organic injury, which has now become a chronic pain syndrome and is now a paragraph (c) injury under the definition of serious injury.
2. Two doctors expressed views on this aspect. Mr O'Brien, orthopaedic surgeon, said that her symptoms in relation to the neck and shoulder demonstrated a chronic pain syndrome which was being influenced by psycho-social factors.
3. Mr Ian Jones, orthopaedic surgeon, accepted that she had symptoms and signs of mild degenerative disease affecting the spine and the left shoulder, but said given the extensive radiological investigations, her symptoms and signs appeared to be out of proportion to the identified pathology. He said he could not identify any adverse psychological reaction to her condition and it would be appropriate to obtain the opinion of a psychologist or psychiatrist. No such opinion was sought.
4. No other doctor raised this issue. There was no medical evidence from a psychiatrist to suggest the plaintiff was suffering a mental health condition. Given the plaintiff's evidence that she was consulting her general practitioner on a monthly basis it would be expected that if her mental health was an issue the general practitioner would have

referred to it and referred the plaintiff for appropriate treatment. I accept that the plaintiff's injuries are organically based.

31 Much of what we have said in respect of ground 1 is also relevant to ground 2. In our view, ground 2 must be rejected. There was no error in her Honour concluding on the whole of the evidence that the plaintiff's injuries were organically based. Although the plaintiff bore the onus of showing she had suffered a serious injury, her Honour justifiably had regard to the fact that there was no medical evidence from a psychiatrist which suggested that the plaintiff was suffering from a mental health condition. Additionally, there was no error in concluding that one might expect the respondent's general practitioner to have referred to a mental health condition and/or to have referred the respondent for appropriate treatment if such a condition existed.

32 In amplification of its criticisms of her Honour's conclusion in paragraph [58] of the reasons for judgment, the appellant submitted that paragraph [62] of her Honour's reasons was inconsistent with the conclusion that the respondent's injuries were organically based. Paragraph [62] of her Honour's reasons was in the following terms:

1. In considering the consequences of a physical impairment in the context of pain and suffering, I have excluded any consequences of a psychiatric or psychological nature.

33 In our opinion, there is nothing in this point. In paragraph [62], her Honour simply stated the relevant legal principles. A judgment is not a statute. Her Honour's reasoning at paragraph [62] does not involve any positive assertion that the respondent suffered from a mental health condition or that the respondent's injuries were not organically based.

34 In ground 3, the appellant makes complaint concerning paragraph [62] of her Honour's judgment. The complaints made in this ground are a variation of the complaints made in ground 2. Specifically, the appellant contends that:

(a) her Honour failed to find and state the nature of the psychiatric or psychological condition and its consequences referred to in paragraph [62];

(b) her Honour failed to find and explain how any such consequences were affected by her earlier finding at [51] that the respondent had 'exaggerated the consequences of her injuries'; and

(c) her Honour failed to identify the consequences said to have been excluded.

35 These complaints proceed on the false premise that her Honour determined that there were particular consequences of a psychiatric or psychological nature from which the respondent suffered and that it was therefore necessary for her Honour to exclude them under s 134AB(38)(h). For the reasons given with respect to ground 2, we reject that premise. Moreover even if her Honour had considered that the plaintiff had suffered some psychiatric effects from her physical injury, it was not necessary for her to quantify the precise extent of those psychiatric effects. As Ashley JA observed in Jayatilake v Toyota Motor Corporation Australia Ltd:

If a question arises whether, because there is said to be a psychological aspect (say) of pain and suffering, the plaintiff has made out the necessary proof, that question might, as a matter of theory, be resolved by identification of the 'quantum' of psychologically based symptoms, and their exclusion from the whole. But it is another thing to say that such an approach is required. A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.[14]

36 Further, there is no warrant for concluding that her Honour was required to explain how any such consequences (if they existed) were affected by the earlier statement in her reasons that '[o]verall I accepted that she [the respondent] was truthful, but I came to the view that she exaggerated the consequences of her injuries'.[15]

37 In ground 4, complaint is made concerning her Honour's acceptance of the opinion of Associate Professor Bittar at paragraph [69] of her Honour's reasons. Again, much of what we have already said is apposite in respect of this ground. As we have already said, the resolution of applications of this kind is often attended with difficulty. Her Honour's task in the present case was made all the more difficult by the fact that there were two different injuries alleged to satisfy the serious injury requirements of s 134AB and there was competing expert evidence in respect of both of these injuries - which competing expert evidence was, as we have already said, not sought to be resolved by either party seeking to cross-examine the various authors of the tendered medical reports. That said, it is scarcely surprising that her Honour sought to place reliance upon (as she described him), 'the only doctor to provide a report which considered the consequences of the neck injury'. Specifically, her Honour said in paragraph [69]:

1. The only doctor to provide a report which considered the consequences of the neck injury was that of Associate Professor Bittar, neurosurgeon, who examined the plaintiff at the request of her solicitors in May 2011. He commented only upon the neck injury. He accepted the plaintiff had suffered an aggravation of cervical spondylosis and that as a result of the neck injury, she suffered pain and that the consequences of the physical injury restricted her in relation to her social, domestic and recreational activities, which he said will continue for the foreseeable future. He said she socialises less due to the pain, her recreational activities are restricted as she no longer rides horses, water skis or goes camping. Her domestic activities are limited; her ability to engage in significant cleaning, vacuuming and scrubbing and heavy gardening is limited. Further, her work capacity is limited. In assessing the plaintiff's impairment he specifically excluded any functional overlay when considering the consequences of the neck injury. The consequences referred to by Associate Professor Bittar are the consequences that she told the Court and doctors about.

38 Again, in the context of this case, it was not necessary for her Honour to say more in relation to why she accepted the evidence of Associate Professor Bittar.

39 The balance of the complaints made in respect of ground 4 proceed on the premise that her Honour in fact rejected (or ought to have rejected) more of the respondent's evidence than she in fact rejected; alternatively, that her Honour was bound to accept more of the medical evidence consistent with the appellant's case. There is no warrant for proceeding on such a basis. As has been said before, it is difficult for an appellant to demonstrate that a trial judge's evaluation of the existence of a 'serious injury' should be set aside.[16] This is all the more so where the judgment at first instance demonstrates (as her Honour's judgment in the present case demonstrates) a careful and considered analysis of all of the evidence called by the parties.

40 In ground 5, the appellant makes complaint about the following sentence in paragraph [72] of her Honour's reasons:

I accept that the plaintiff has been complaining of injury to her neck and receiving treatment since September 2005 a period of six years.

41 The appellant contends that this 'finding either significantly overstated or did not adequately identify and explain the evidence concerning the level and absence of any constancy in the respondent's medical treatment since September 2005'. It was further submitted that this statement 'suggested a constancy and degree of treatment amounting to a serious injury consequence, but the evidence was that since 2009 the respondent had taken some pain medication and had a review by Mr Hillier in 2010'.

42 It is true that the evidence discloses that the level of attendances by the respondent on medical practitioners diminished after May 2009 from what it had been prior to that time. That said, we see nothing wrong with the sentence of her Honour's reasons complained about in ground 5. The sentence is a broad description of the fact that the respondent had been complaining of neck injury and has had medical treatment in the six years since September 2005. Having regard to her Honour's detailed consideration of the medical evidence, we have little doubt that her Honour properly understood the nature and the extent of the treatment the respondent received since September 2005. Even if it could be said that the sentence complained of was broadly expressed, taken in context any such complaint could not lead to the relief the appellant seeks in this appeal. Ground 5 must be rejected.

43 Ground 6 makes further complaint about paragraph [72] of her Honour's reasons. At paragraph [72], her Honour said:

1. I accept that the plaintiff has been complaining of injury to her neck and receiving treatment since September 2005 a period of six years. Whilst a number of doctors have not considered the permanency aspect, Associate Professor Bittar accepted the consequences were permanent with respect to her social, domestic and recreational activities. In view of Associate Professor Bittar's findings and the fact that she has suffered the consequences for six years, I am satisfied that the impairment of the neck is permanent, that is likely to continue into the foreseeable future. In reaching that view I have taken into account the plaintiff's evidence, the level of medical treatment and the fact that she is no longer working. She said that apart from when her two children were young, she has been in employment, performing manual work in factories, shops and as a cleaner. I accept that she has a reduced manual work capacity as a result of her injury to the neck. That is a consequence which I can take into account in relation to pain and suffering.

44 In its written outline of submissions, the appellant contended in respect of ground 6:

1. Her Honour also relied upon a finding that the respondent was 'no longer working'. However, Mr Hillier (treating orthopaedic surgeon) considered that the respondent was capable of her normal work. Further, the respondent continued working full-time until July 2007 and it was conceded that the medical consensus was that she had a residual capacity for work.
2. In the circumstances, her Honour erred in elevating a failure to work into a 'reduced manual work capacity' when the treating surgeon considered that the respondent had capacity for normal work, the acknowledged residual work capacity was untested and the respondent's claim of incapacity were compromised by her exaggeration.

45 As we have already said in this case, the medical evidence did not all speak with one voice. The short answer to ground 6 is that on a proper consideration of the whole of the evidence led in this application, it was well open to her Honour to conclude that the respondent had a reduced manual work capacity as a result of her injury to the neck and to take this into account in assessing the consequences to the respondent of this injury. Ground 6 must be rejected.

46 Ground 7 makes complaint about paragraph [76] of her Honour's reasons. Paragraph [76] provided:

1. It is accepted that the plaintiff has residual symptoms with her neck. Taking all the evidence into account, I am satisfied, on the balance of probabilities, having viewed and considered the surveillance film, which I find is not incompatible with the impairment to the neck, and in light of the evidence as whole, that the consequences to the plaintiff satisfy the test. I accept the plaintiff suffered a neck injury at work in September 2005. I accept the injury has had consequences to her, I am satisfied that when judged by comparison with other cases in the range of possible impairments, that the injury can 'fairly be described as being more than significant or marked and as being at least very considerable'.

47 The surveillance film was obviously evidence helpful to the appellant's case below. However, notwithstanding the fact that the respondent conceded that she was shown in the film moving her neck without restriction or that the film demonstrated the confidence with which the respondent was able to perform the physical movements recorded in it, the respondent's application still fell to be considered upon the whole of the evidence. This is the task her Honour undertook. In her judgment, her Honour set out her findings in relation to the surveillance film and gave detailed reasons assimilating the various pieces of evidence that were relevant. We see no error in her Honour's approach. Her Honour's conclusions were open on the evidence. It is not a question of what conclusion we might have come to if we were hearing this application at first instance. The appellant has failed to demonstrate relevant error. Ground 7 must be rejected.

48 Ground 8 makes complaint about her Honour's conclusions that the respondent satisfied the test for serious injury. In Mobilio v Balliotis,[17] this court held that it would not interfere with a trial judge's determination that the plaintiff had or had not suffered a serious injury[18] in the absence of specific error, unless satisfied that the decision was plainly wrong or wholly erroneous.[19] In our view, the repeal of s 134AD, to which we have referred above, reinstates that approach.

49 In complaining about her Honour's conclusion, the appellant alleges that the judge's finding was 'compromised and erroneous by reason of the errors of conclusion and inadequacy of reasoning identified in [grounds 1 to 7]'. For the reasons we have given in respect of grounds 1 to 7, this ground must also be rejected. At the hearing of the appeal the appellant made it clear that it did not argue that the judge's finding was 'plainly wrong or wholly erroneous.'

[1] See s 134AB(17).

[3] [2008] HCA 13; (2008) 234 CLR 124.

[5] But see, s 138A of the Accident Compensation Act; s 14(2) of the Interpretation of Legislation Act 1984; the Colonial Sugar Refining Company Limited v Irving [1905] AC 369; Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Limited [1942] HCA 23; (1942) 66 CLR 161, 175; Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267; Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430, 440; State of Victoria v Robertson [2000] VSCA 113; (2000) 1 VR 465, [19]; Dolling v National Australia Bank Limited [2002] VSCA 127; (2002) 5 VR 234; Dwyer v CalcoTimbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124; Kovacic v Henley Arch Pty Ltd [2009] VSCA 56; (2009) 22 VR 21; Filipovski v Ogemi Services Pty Ltd [2009] VSCA 230; (2009) 25 VR 316 and Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [6]. But cf Yrttiaho v The Public Curator of Queensland [1971] HCA 29; (1971) 125 CLR 228, 245.

[6] Referred to by her Honour as a video.

[7] As to the consequences of this, see Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSCA 179.

[8] As we have said, her Honour did not find that the left shoulder injury was a serious injury.

[9] See for example Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 133 (per Crockett and Southwell JJ) and Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436, 437 (per Brooking J) and 445 (per Southwell and Teague JJ).

[10] [2005] VSCA 33; (2005) 14 VR 622, 638 [33].

[11] [2012] VSCA 179, [68]-[69].

[12] Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; (2008) 20 VR 605, 610 ( Ashley JA, Neave JA and Pagone AJA agreeing).

[13] See generally, Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592, [190]-[192].

[14] [2008] VSCA 167; (2008) 20 VR 605, [19].

[16] See for example Cowden v Transport Accident Commission [2003] VSCA 198, [18].

[17] [1998] 3 VR 833.

[18] Under s 93(4) of the Transport Accident Act 1986.

[19] At 835 ( Winneke P) Phillips JA); 837 ( Brooking JA); 853-4 (Ormiston JA); 859 ( Phillips JA) 860 (Charles JA) Brooking JA discussed whether the decision could be characterised as one to which House v R [1936] HCA 40; (1936) 55 CLR 499 principles applied. Both Phillips JA (at 859) and Ormiston JA doubted whether the decision was discretionary in the sense described in House v R. See also Barwon Spinners Pty Ltd v Podolak (2005)14 VR 622.