Petrovic v Victorian WorkCover Authority [2018] VSCA 243

1 In November 2010, the applicant commenced employment with a labour hire firm, Skilled Group Ltd. In the course of that employment, the plaintiff worked as a grind house operator and loader driver at the premises of Incitec Pivot Pty Ltd ('Incitec'). Incitec ran a fertiliser plant located in North Shore, Geelong.

2 On 4 July 2011, the applicant was operating a front-end loader at Incitec's premises. From time to time, he heard radio reports from his co-worker, Mr Bradley Mark. Mr Mark was cleaning the rollers of a conveyor belt on a machine in another part of the factory.

3 After a while, the applicant noticed that he had not heard from Mr Mark. The applicant decided to check on Mr Mark. Upon arriving at the machine that Mr Mark had been cleaning, the applicant saw a hard hat on the ground. He looked up and saw Mr Mark hanging upside down in front of him. The applicant hit the emergency stop switch, but the conveyor belt continued to operate. After calling for assistance on his two-way radio, the applicant attempted to release Mr Mark from the machine using a forklift. Eventually, the applicant was able to lower Mr Mark to the ground where he was soon after assisted by ambulance officers.

4 By an originating motion filed in the County Court on 5 July 2017, the applicant sought leave, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 ('the Act'), to commence a proceeding at common law claiming damages for personal injury. In his proceeding, the applicant alleged that he sustained a psychiatric condition as a result of observing what occurred to Mr Mark ('the incident'). The claim for leave under s 134AB(16)(b) was made relying upon para (c) of the definition of 'serious injury' in s 134AB(37) of the Act - namely, 'permanent severe mental or permanent severe behavioural disturbance or disorder'.

5 The application for leave to commence a proceeding was heard by Judge Tsalamandris on 29 and 30 January 2018. On 23 February 2018, her Honour dismissed the applicant's application.[1] The judge considered the applicant 'to be an entirely unreliable witness'.[2] Having considered the whole of the evidence, the judge concluded that the applicant had failed to satisfy her that 'he genuinely suffers a psychiatric condition as a consequence of having witnessed the workplace accident'.[3]

6 The applicant now seeks leave to appeal and (if leave is granted) to appeal the judge's order refusing him leave to commence a common law proceeding. The applicant's proposed grounds of appeal are as follows:

1. The judge erred in not attaching any weight to the affidavit of the plaintiff's father, Mr Petrovic Senior.
2. The judge erred in ruling that the father's 'extremely close relationship' with the plaintiff entitled rejection of the affidavit in its totality.
3. The judge erred in preferring the opinion of Professor Doherty over the other medical experts in circumstances where Professor Doherty did not consider all the relevant material.

7 In his application for leave to appeal, the applicant seeks orders that the judge's orders be set aside and that he 'be given leave to sue for damages'. Alternatively, the applicant seeks to have his application remitted for rehearing before a different judge.

8 On the hearing of the application in the County Court, the applicant relied upon two affidavits that he swore on 9 January and 12 December 2017. He also relied upon an affidavit sworn by his father, Roman Petrovic, on 12 December 2017. It is this affidavit that is referred to in the applicant's proposed grounds of appeal. Additionally, the applicant relied upon an affidavit sworn by Mr Mark on 28 January 2018. That affidavit exhibited a statement made by Mr Mark about the circumstances in which he was injured on 4 July 2011.

9 At trial, the applicant gave evidence and was cross-examined. No other viva voce evidence was given on the application before the judge. Parts of the court books filed by the parties, however, were tendered in evidence. These included reports from treating doctors and other medical practitioners who had examined the applicant, an extract of some medical centre notes, and the certificates of opinions and reasons of two medical panels.

10 The applicant was born in 1984. He was 27 years of age at the time of the incident. He was 33 at the time of trial.

11 The applicant gave evidence that he left school during Year 11. He commenced a plumbing apprenticeship with his father, but did not complete the apprenticeship. He subsequently obtained employment in the security industry for approximately two and a half years, undertaking crowd control work. Later he worked for Toll at Geelong performing maintenance work, before later undertaking stevedoring work for Patrick Stevedores.

12 In approximately 2006, the applicant moved to Melbourne and obtained employment working with Simms Metal in Dandenong. During this period, the applicant married. That relationship, however, broke down in approximately 2009 and the applicant moved back to Geelong, where he worked for his father on and off, and also for Patrick Stevedores.

13 In his first affidavit, the applicant deposed that, in 2006 and 2009 (before the incident) he had experienced previous episodes of stress. These were, however, not long-lasting. In the 2009 episode, the applicant experienced some depressive symptoms while he was going through his divorce.

14 In his first affidavit, the applicant described the circumstances of the incident. Under the heading 'The Aftermath', the applicant said that, after the incident, the plant was shut down and he found himself sitting at home not knowing what to do. He asked Skilled to give him some work, and they found him one shift as an usher at an AFL function. The applicant said he found it difficult to focus and concentrate and that he could not complete this shift. He said he was unable to return to work at the plant. He made a further attempt to work at another site, but lasted only one and a half days in that employment.

15 In his affidavits, the applicant described his treatment. He said he did not seek treatment initially because he did not think he needed treatment and that he thought he could cope on his own. Over time, however, he became aware of being troubled by what had happened. He said he began to drink alcohol a lot and he was ultimately referred to a drink-driving counsellor.

16 The applicant said that he first attended his general practitioner (Dr Ting) on 1 May 2012. He described other treatment including attending:

• Mr Craig McGree, a psychologist, fortnightly between June 2013 and September 2016;
• Dr Schutz, a psychiatrist, once every four to five weeks from December 2015 onwards.

17 In his first affidavit, the applicant said that he was taking Lexam (an antidepressant) twice daily, and Seroquel (a drug his doctors had told him was intended to help with his depression) daily. In his second affidavit, the applicant said he was taking the antidepressant, Lexapro, on a daily basis.

18 In his first affidavit, the applicant described the consequences of his injury as follows:

I continue to be depressed, nervous and anxious as a result of the injury I sustained in the incident. My general functioning on a day-to-day basis is very poor.

I continue to require regular psychiatric treatment and daily prescription of antidepressant and antipsychotic medication for my condition.

I prefer to avoid going outside of the house though in more recent times this situation has improved somewhat.

I do not socialise as much as I used to. I do not go out much these days.

I used to love martial arts. I have studied three different styles of aikido. I had studied for a number of years and I was quite competent at it.

Since my injury I stopped practising martial arts altogether for a number of years. I have only recently a few months ago started again. I struggle with it as I struggle to focus but I am trying to push through. I have gone to the Dojo about half a dozen times.

I have difficulty sleeping. I experience nightmares about [the incident]. I experience flashbacks of [the incident]. I find myself almost constantly thinking about what has occurred.

At home I do very little. I am isolated. I live alone. I do not take good care of myself. I often eat poorly and I waste a lot of food. I often find there is food rotting in the fridge because I have not eaten it.

Often I will forget to put the rubbish bin out on time.

At times I have felt as though life is not worth living. I have thought about taking my life. These thoughts arise because I am desperate to get some relief from the emotional anguish I am experiencing.

I have stopped enjoying my life. My fiancée makes me happy and she brightens me up a bit.

My ability to concentrate is affected. I am not able to concentrate as well as I used to. I find it difficult to focus on reading or watching television.

I do not feel well enough to work. I cannot concentrate or focus sufficiently to be able to work.

19 In his second affidavit, the applicant stated that in April 2017 he moved in with his father and that he relied heavily on his father - his father being 'the one who keeps the household going'. As to continuing effects of his injury, the applicant said:

I do not take care of myself and do not worry much about self-hygiene. I often go a number of days without showering. I go a number of days without shaving. Before the injury I used to shave every second or third day.

...

I have difficulty sleeping. For the first three years after the injury I slept a lot. I slept too much. I spent large parts of the day sleeping. I was demotivated and lethargic. For the last two years I have had trouble sleeping. The pendulum has swung to the other end. I am awake a lot.

I regularly struggle to get to sleep. I feel restless and anxious. I have difficulty getting to sleep. When I get to sleep I usually only sleep for a couple of hours at a time. I often wake up after about two hours and am up for an hour or an hour and a half before I get back to sleep only to sleep for an hour or so at which point I wake up again. This happens most nights.

I have nightmares frequently. About two to three times a week I have nightmares. I have nightmares about [the incident] and being trapped in machinery.

I stay in bed and a lot of mornings I will get up at about 9:30 am in the morning. I don't do much in the morning.

...

I do not socialise as much as I used to before the injury. I have stopped socialising in Geelong. I have lost most of my friends.

...

Since [the incident] I have had flashbacks. I have flashbacks where I see blood on my hands. This usually occurs when I am washing my hands. It used to happen more frequently but nowadays it happens, on average, about every two to three weeks. It will happen suddenly and without warning and I find it very distressing.

...

I have avoided martial arts or similar sports. I really miss martial arts. I used to love martial arts and in particular karate and aikido.

...

I have not been able to go back to work. I lack the ability to concentrate or the self-confidence to go back to work. I have difficulty maintaining focus or performing a task which requires concentration or patience. I am depressed by this. I feel like I am getting worse, not better. I am still taking antidepressant medication daily. I have been like this for six years and I have been out of the workforce in that time. I am very concerned about my future. I don't see a future for myself.

20 In his oral examination-in-chief, the applicant was asked four questions. He gave evidence that he had reread his affidavits the previous day and, apart from an incorrect date which he corrected, those affidavits were true and correct. Notwithstanding that evidence, the applicant's cross-examination commenced with the following questions and answers:

When you go along to see a medical practitioner, either for the purposes of the treatment or the medical practitioner is seeking to provide an opinion to your solicitors, or the medical panel who examined you, do you speak to them in terms of telling them exactly how things are?---No.

You don't? So do you, when you see medical practitioners, do you try and assist them so that they can form an opinion?---Yes.

But you don't tell them necessarily the truth?---No.

Do you treat the medical practitioners or those trying to help you, almost as a bit of a game?---No.

If they want to ask you something, presumably they want to know the truth, would that be right?---That would be correct, yes.

But you choose not to tell them the truth?---Yes.

Do you tell them the truth?---No.

You understand that it's necessary, isn't it, to tell them the truth so that they can form an opinion, is that right?---That would be correct.

But you choose not to tell them the truth?---Yes.

21 Later, when questioned about the history he gave a medical panel, the applicant gave the following answers to the following questions:

But you choose, do you, to not tell them all the time, not tell them all the truth, is that right?---That's correct.

That gives them an enormous difficulty in making an assessment if you're not going to tell the truth, doesn't it?---Yes.

So you treated them in a way that you chose to treat them, is that right? You decided what you would say, is that right?---Yes.

And it was conscious and it was deliberate, you had decided how you would answer the questions, is that right?---Yes.

22 The applicant was asked about the reason he gave his employer for not completing his shift as an usher at the AFL function. The applicant admitted that the reason he gave (his partner had been involved in an accident) was a 'white lie'.

23 The applicant was asked about his ability to drive and whether, following the incident, he would ever leave the house. Initially, he said that he had attempted to drive, but couldn't, and that he had only ever left the house after the incident 'to see a doctor or [for] a necessity'. The applicant was asked and answered the following questions:

And there are no other places that you go to? You don't drive to socialise?---No. I had attempted to.

You don't go out at all except to get food and go to medical examinations, is that right?---Yes, that's correct.

24 This evidence, however, was also false. Ultimately, the applicant admitted to driving once a fortnight to a poker machine venue where he would spend the fortnightly amount he received by way of social security benefits.

25 In cross-examination, the applicant admitted that in May 2012 he told Dr Edmond van Ammers that he (the applicant) could see no reason why he could not go back to work at that time.

26 The applicant was further cross-examined about what he told a medical panel in April 2015. The applicant agreed that he had told the medical panel that he did not go out at all and that he did nothing with his day and was isolated at home. He agreed that he told the medical panel that the last time he went out was 'about seven months ago'. The applicant agreed that this was the history he had given. He then described it as 'somewhat of a slight fairy tale'.

27 The applicant was cross-examined about his affidavit evidence that he had seen Mr McGree fortnightly between June 2013 and September 2016. The applicant admitted that he had only seen Mr McGree on six occasions, and that his affidavit evidence was 'very far from the truth'. The applicant was cross-examined further about what he had sworn to in his affidavits about treatment, and the history he had given to medical practitioners concerning that issue. The applicant was asked and answered the following questions:

[I]t would be impossible for anyone to just read what is it said in your affidavit and accept that it's all accurate, wouldn't it?---Somewhat true, yes.

And just like the psychiatrist, Dr Schutz, in paragraph 51 you said: 'I wasn't getting better, I was referred to a psychiatrist. I started seeing Schutz in December 15. I continued to see him monthly.' That is just completely wrong, isn't it?---No, about Dr Schutz, that is completely right.

So from December 15 to January 18 which we are in now, just call it two years if you like, from late 15 to late 17?---Including the time I'm not in Australia, yes.

You've seen him a total of, what, eight times in 25 months?---I thought it was more than eight times. Eight. It's just nowhere near accurate that you see him every month, is it? Is it?---No, it's not accurate.

No?---No.

And when you tell the doctors that you see that you saw McGree fortnightly for years and Schutz for these periods, they get the wrong history, don't they, about your treatment?---Everything's a bit all over the place, yes. Yes, the wrong treatment. I had no treatment for quite some time.

But not only is it wrong, the history they get, you know it to be wrong because you're the one swearing up to it, don't you?---Yes.

28 The applicant was cross-examined about histories he had given medical practitioners that he had not had treatment because he had no money. The applicant admitted, however, that in September 2017, he had settled a total and permanent disability claim and thereafter had access to settlement funds of $165,000.

29 In re-examination, and notwithstanding the absence of any reference to this in the applicant's affidavits or his earlier evidence, the applicant admitted that he took illicit drugs (before us, the parties agreed that this was a reference to marijuana). The applicant gave evidence that he started taking the drugs about 10 months after the incident, but that he stopped and had been clear for four months at the time of trial. Notwithstanding that evidence, however, the applicant in re-examination described himself as being a 'drug addict'.[4]

30 The applicant's father's affidavit commenced with a description of the applicant's background. The applicant's father deposed that the applicant commenced working with him a couple of months after the applicant left school. The applicant worked in his father's industrial plumbing business. The applicant's father described the applicant as a hard worker who 'pretty much always had work'. He said occasionally that when the applicant was between jobs, he would give the applicant work to help him through. The applicant's father described the apprenticeship he gave the applicant and the applicant later working on and off for him for about five years.

31 After the incident, the applicant's father said he noticed the applicant starting to behave strangely. He used to visit the applicant frequently. He began to notice that the applicant did not seem to be living normally. He noticed food was going off in the fridge. He did not think the applicant was eating properly. He observed the applicant wearing the same clothes for days at a time. The applicant's place was a mess. Prior to the incident the applicant was a neat and tidy person.

32 In April 2017, the applicant's father decided to bring the applicant home to his place so he could keep a closer eye on the applicant. He described the applicant as being dishevelled, frequently going days without shaving or showering.

33 The applicant's father said that the applicant 'sleeps much of the time', frequently having to be dragged out of bed at 9:30 or 10:00 am in the morning. At night, the applicant has terrible nightmares. The applicant's father deposed to hearing 'terrible screams in the night'. The applicant's father said:

I am normally a heavy sleeper but he wakes me up most nights either with screams or just from making noise in the house and walking around.

34 As to the household, the applicant's father said:

I am the one who pays the bills. I am the one who keeps the household going. If I were not doing it then Kenny would not pay the bills. He gives me money to help with the bills. He does not pay me rent or board currently. He just gives me money towards the bills such as the electricity and the internet and the gas. I fear to think what would have become of Kenny after his accident had I not been around.

I do not believe he would be able to work the way he used to when he was working for me. He has difficulty focusing or remembering things. He has difficulty with motivation. He has difficulty with the simple act of getting up in the morning. He would really struggle to just get out of bed in the morning and get himself ready to go to work as he is now.

We had a good relationship. He was always respectful of me. We were mates. There are days when I feel that I am banging my head against a brick wall when I try to involve him in caring for himself. There is many a day when I am at my wit's end and I don't know what to do. He is my son and I will always love him. I just try to support him but it is not easy.

36 The applicant's case in this Court was that, notwithstanding whatever credit issues affected the applicant's evidence, the evidence of the applicant's father (which was not cross-examined) should have been accepted by the judge. Moreover, the acceptance of the applicant's father's evidence should have led the judge to prefer the opinions of the applicant's experts, Dr Weissman, Dr Schutz and Dr Turnbull, in preference to the opinion of the respondent's expert, Associate Professor Doherty. While, in addition to the opinions of these four experts, other medical evidence was tendered before the judge, having regard to the way in which the parties put their cases in this Court, it is only necessary to refer in any detail to the reports of Drs Weissman, Schutz and Turnbull and Associate Professor Doherty.

37 Dr Weissman gave evidence that he saw the applicant at the request of the applicant's solicitors on 20 August 2014. After taking a long and detailed history and conducting a psychiatric examination, Dr Weissman expressed the opinion that the applicant suffered from a chronic post-traumatic stress disorder of moderately severe intensity or severity, and a chronic adjustment disorder with depressed and anxious mood of at least moderate intensity or severity.

38 Dr Weissman conducted a second examination on 18 July 2017. Again, Dr Weissman took a history. This history included the falsely overstated history of treatment with Dr Schutz, to which we have already referred. Having, as we have said, again taken a detailed history from the applicant, Dr Weissman said:

At the outset I will state that the quality of my assessment and report is heavily dependent upon the quality of the history that I obtain from the claimant (Mr Petrovic) and, in particular, the reliability, validity, veracity, accuracy, authenticity and consistency of his account.

On this occasion, I found him to be a somewhat impressionistic and suggestible historian.

On this occasion, like the Medical Panel, I found some internal inconsistencies as well as some external inconsistencies, discrepancies and disparities.

Furthermore, some of his reported/subjective symptoms were of moderate to moderately severe intensity or severity but, based upon my clinical experience and expertise, and keeping in mind some concerns and doubts about reliability and validity of symptoms, I thought that some of his objective/observed signs were closer to mild (or, at most, mild to moderate).

I also noted that he said that he has travelled to Thailand on numerous occasions for extended periods of time. On the one hand this is inconsistent with having no leisure activities and hobbies and no socialisation. On the other hand, I accept that travelling in such a manner does not necessarily equate to having a work capacity. I simply mention this for the sake of completion.

Furthermore, by way of background it now seems that the claimant did have at least some past psychiatric history. On the one hand this raises the possibility that he had some premorbid psychological and emotional vulnerability factors. On the other hand, it seems that he had a full capacity for work prior to the work incident and that he enjoyed his job. Again I mention this for the sake of completion.[5]

39 Following his second examination, and notwithstanding his reservations set out above, Dr Weissman expressed the opinion that the applicant was suffering from a 'moderate group of employment-related psychiatric conditions and mental injuries'. Dr Weissman said that the applicant was probably totally incapacitated for his pre-injury duties, and that he most probably did not have a full capacity for 'so-called suitable duties'. Dr Weissman said that the applicant 'may well have a partial capacity for so-called suitable duties'.

40 After receiving Dr Weissman's second report, the applicant's solicitors forwarded to him the applicant's second affidavit, the applicant's father's affidavit, a report from Dr Lester Walton and a report from Dr Turnbull. Dr Weissman provided a third report in which he said:

Regarding the further affidavit of Mr Petrovic and the affidavit of his father, Mr Roman Petrovic, my understanding is that as an expert witness I am permitted to accept, at face value, the accuracy of the content of the affidavit material of the plaintiff (Mr Kenneth Petrovic) and his father (Mr Roman Petrovic). Therefore, my opinion in this supplementary report is also based on the factual matters and assumptions contained in those two sworn affidavits, as well as the reports of Dr Walton and Dr Turnbull.

Based upon all four reports/affidavits above, I now think that Mr Petrovic has a chronic Adjustment Disorder with mixed disturbance of emotions of at least moderate intensity or severity, as well as the Alcohol Abuse Disorder. I now think that he is suffering from at least moderate traumatisation features, and probably a chronic Post-Traumatic Stress Disorder, and not 'mild or perhaps mild to moderate' traumatisation features.[6]

42 Finally, Dr Weissman was provided with a copy of Associate Professor Doherty's report dated 4 January 2018. This resulted in Dr Weissman providing a fourth report, in which he observed that Associate Professor Doherty had not received all of the material that he (Dr Weissman) had received. Dr Weissman also observed that Associate Professor Doherty's opinion was inconsistent with the content of the applicant's second affidavit and the applicant's father's affidavit. Dr Weissman then concluded that he had no reason to change the opinion expressed in his third report, saying:

As I stated in my [third report], regarding the further affidavit of [the applicant] and the affidavit of his father ..., my understanding is that as an expert witness I am permitted to accept at face value the accuracy of the content of the affidavit material. Therefore my opinion [in my third report and this report] is also based on the factual matters and assumptions contained in those two ... affidavits.

43 Dr Schutz was the applicant's treating psychiatrist. He first saw the applicant in December 2015, and last saw him in December 2017. Dr Schutz saw the applicant on eight occasions in all.

44 At the request of the applicant's solicitors, Dr Schutz provided five reports (reports dated 24 May 2016, 1 April 2017, 22 September 2017, 23 January 2018 and 25 January 2018.

45 In his first report, Dr Schutz expressed the opinion that the applicant suffered from chronic PTSD. Dr Schutz thought that the prognosis should be reasonable with appropriate treatment.

46 In his second report, Dr Schutz observed that the applicant 'presented as a neatly groomed young male', whose cognition was grossly intact and who had no thought disorder or psychotic symptoms. Dr Schutz said:

On the assumption that he has provided an accurate history it was his workplace stressor that had been the cause of his PTSD.

...

In my opinion on [the] balance of probabilities [the applicant] currently lacks capacity for work from a psychiatric perspective.

...

[The applicant] may benefit from further treatment. I would note that I have recently made changes including the addition of Prazosin which can be helpful for nightmares.

...

I would note that when I last saw him I thought his prognosis would be reasonable in that he has no complicating factors and had reasonable supports. I would state however that in my opinion his prognosis is increasingly guarded. It has now been almost six years that he has been out of the workplace. There has been no attempt at trauma focused therapy and given the long duration of symptoms I am unclear if this would lead to a significant functional benefit or symptomatic relief at this point.

47 In his third report, Dr Schutz again referred to his opinion being based on the applicant's history. Dr Schutz said that on the assumption that the applicant had provided an accurate history it was 'clearly his workplace stressor that had been the cause of his PTSD'.

48 In his fourth report, Dr Schutz was asked to comment on Associate Professor Doherty's report. Dr Schutz said that, in general terms, psychiatric diagnoses rely on three elements: the history provided, observations on mental state examination and 'collateral information'. Dr Schutz said that, as a treating psychiatrist, 'one is reasonably accepting of the accuracy of the history provided unless there are marked internal inconsistencies noted'. Dr Schutz said that he had not noted such marked internal inconsistencies and that, in his assessment, the applicant had provided him with a consistent and plausible account. That said, however, Dr Schutz accepted that inconsistencies had emerged in other contexts (in particular in relation to examinations by medical panels). Dr Schutz stated:

I would state that I have less confidence in the diagnosis overall than previously, having had an opportunity to review the provided material.

49 Again, however, Dr Schutz said that on the assumption that he had been provided with a reliable account of symptoms and functioning, it remained his opinion that the applicant lacked capacity for work from a psychiatric perspective.

50 In his final report, Dr Schutz was asked to comment on the applicant's father's affidavit, GP records, a medical panel opinion of May 2015 and Dr Weissman's fourth report. Dr Schutz described the applicant's father's affidavit as 'corroborat[ing] [the applicant's] account of functional limitations, especially in Australia'.

51 Under the heading 'Severity of Injury' Dr Schutz said:

On the assumption that he [the applicant] has provided a reliable account to me I would state that his illness is of moderate severity with a guarded prognosis. My opinion has not been changed by the provided reports.

52 Dr Leon Turnbull examined the applicant, at the request of the applicant's solicitors on 6 October 2017 and 15 December 2017. During his first examination, Dr Turnbull took a detailed history, including the false history of the applicant seeing Dr Schutz 'on a two to five weekly basis' from 2015, and taking Lexapro 'at 50 mg daily, that being a high dose'. Dr Turnbull also took a history of the applicant 'being on edge coming into the city, and suffering a preceding 24 to 48 hours of intense anxiety with dry-retching and panic'. Dr Turnbull said that these were 'classic features of PTSD'.

53 In his first report, under the heading 'Any Other Comments', Dr Turnbull said:

I concur with previous assessors in gleaning that this man tends to endorse symptoms and functional impairment to at least the cusp of exaggeration. I would not go so far to say he is feigning though, as I am confident the core pathology of PTSD is present, simply the volume of his conveyance of it is turned up.

Similar to previous assessors, the information I obtained was not consistent with his previous offerings. I have no way to completely and confidently determine whether this reflects in part or combination the disorganisation his illness confers, a limited intellect, an inability to recall his chronology during assessment, or whether it is self-serving. If it was exclusively the latter, and I doubt it is, it is clunky and naïve as there is basic information that can be checked. My overall conclusion is there are probably elements of all of the above.

54 At the time of his second assessment, Dr Turnbull was provided with the applicant's second affidavit and the applicant's father's affidavit. Dr Turnbull said that these affidavits followed 'a similar path of the verbal history [he] obtained'. Dr Turnbull stated that his core diagnosis of post-traumatic stress disorder and major depressive disorder remained unchanged. He said that 'the affidavit' (without specifying which affidavit) was 'generally in keeping with the verbal history [he] obtained'. He went on:

It may, overall, suggest a greater severity than I elicited, though not to any obviously inconsistent degree.

55 Subsequently, Dr Turnbull was asked to review Associate Professor Doherty's report. Dr Turnbull's final report set out his review of Associate Professor Doherty's report. Dr Turnbull said:

While establishing facts are not the role of a psychiatrist, my review of Assoc Prof Doherty's report does not throw up any new information for me to change my opinion from my original assessment. In some sense, Mr Petrovic is consistently inconsistent.

Rather than enhance the image of Mr Petrovic's debility in the face of assessment, his inconsistency has only really served to throw doubt into the reports of those assessing him. Thus, his tendency to contradict himself and report symptoms in a manner that raises the suspicions of his assessors has been a hindrance rather than a benefit in the series of psychiatric assessment he has undertaken. My conclusions were formed with an awareness of these habits.

Of course, were matters of fact determined that thoroughly undermined Mr Petrovic's report of illness and functioning, then that would potentially steer my original conclusion.

56 Associate Professor Doherty examined the applicant, on 28 November 2017, at the request of the solicitors for the respondent. Like the other psychiatrists who had examined the applicant, Associate Professor Doherty took a long and detailed history from the applicant.

57 Having taken his history and conducted a mental state examination, Associate Professor Doherty said that the applicant's history was 'so unreliable that making a psychiatric diagnosis is difficult and possibly invalid'. Associate Professor Doherty went on to say:

The impression I gained during the interview, before reading in detail the supplied material and then confirmed by the reading of the supplied material, is that there is an exaggeration, overstatement and amplification of the reported symptoms.

The inconsistency and unreliability of history is reflective of the worker's personality factors, not the presence of a work-related psychiatrist [scil, psychiatric] condition.

58 Under the heading 'Your Assessment Findings', Associate Professor Doherty said:

The presentation of the worker to me is that of a person out to emphasise a range and number of symptoms and consequential impairments. I found that there is no objective evidence of their presence, and plenty of evidence that the worker is capable of what he finds fulfilling and enjoyable activities.

59 Associate Professor Doherty expressed the opinion that it was 'highly likely' that the applicant's reported symptoms would 'evaporate' when litigation was finalised. Associate Professor Doherty observed that it appeared that the applicant's symptoms 'evaporated' when the applicant was in Thailand - it not being in dispute between the parties that, since the incident, the applicant has been to Thailand more than 25 times.

60 The judge's reasons are a model of clarity and detail. The whole of the evidence, including the evidence of the applicant, was carefully analysed by her Honour. As we have already observed, the judge found the applicant to be 'an entirely unreliable witness'. Having considered the evidence in its entirety, the judge was not satisfied that, as at the time of trial, the applicant suffered any psychiatric condition as a consequence of the incident.[7]

61 In her reasons for judgment, the judge set out in some detail the applicant's background, the applicant's evidence about the incident and the applicant's evidence as to its consequences upon him.[8] The judge then described and summarised the applicant's father's evidence.[9]

62 Next, the judge dealt with the medical evidence,[10] before turning to the issue of the credibility and reliability of the applicant's evidence.[11] Her Honour observed that there were many examples of the applicant's unreliability.[12] Her Honour set out seven specific examples of unreliability that she said were of greatest concern to her. Those examples were as follows:

(i) In his first affidavit, Mr Petrovic stated that he was referred to Mr McGree on 6 June 2013, and that he had consulted him 'fortnightly on average up until about four months ago'. I note that Mr Petrovic swore this affidavit on 9 January 2017, and that, a plain reading of this paragraph would therefore appear to suggest that he had then consulted Mr McGree fortnightly from June 2013 until September 2016, equating to over 75 sessions in a three year period.

At the commencement of his oral evidence, Mr Petrovic confirmed his affidavits were true and correct.[13] It was only when Mr Scanlon directly put to him, that Mr McGree's medical reports indicated that he had only consulted Mr McGree on six occasions, that Mr Petrovic admitted the true extent of his psychological treatment.

Mr Petrovic then conceded that the amount of treatment he claimed to have received from Mr McGree, as detailed in his affidavit, was 'very far from the truth'. Mr Petrovic offered no explanation for this error and accepted Mr Scanlon's suggestion that when he had read his affidavit prior to the commencement of the hearing, he thought it would be 'okay'.

I consider this intentional exaggeration as to the extent of the psychological treatment he has received to impact significantly upon Mr Petrovic's credibility. I note that he also misstated the extent of his psychological treatment to both Dr Weissman and Dr Turnbull and that, in turn, such inaccuracies necessarily impacted upon the opinions offered by both doctors.

(ii) In his first affidavit, Mr Petrovic stated that he commenced seeing Dr Schutz on 1 December 2015, and that he has continued to consult him on a monthly basis. However, it is apparent from Dr Schutz's medical reports that, at the time Mr Petrovic swore his first affidavit on 9 January 2017, he had seen Dr Schutz on only one occasion.

In his further affidavit sworn on 12 December 2017, Mr Petrovic stated that he had continued under the care of Dr Schutz and that he was consulting him on average every five weeks.

In closing submissions, it was agreed between the parties that Mr Petrovic had only attended Dr Schutz on nine occasions from 1 December 2015 until 4 December 2017.

When Mr Petrovic was cross-examined in relation to his consultations with Dr Schutz, he accepted that the frequency of his attendances upon Dr Schutz, as detailed in the first affidavit, were 'not accurate'. I consider this intentional exaggeration by Mr Petrovic of his psychiatric treatment to further impact upon his credibility.

I note that Mr Petrovic also exaggerated the frequency with which he obtained psychiatric treatment when he was examined by both Dr Weissman and Dr Turnbull and, as stated above, I consider this inaccuracy to significantly impinge upon the validity of their medical opinions.

(iii) Mr Petrovic gave varying answers in relation to the medication he now takes. He said that he takes Lexapro on a daily basis. However, he encountered difficulties when asked to describe what a box of Lexapro looked like. Mr Petrovic then said that he was unable to describe the box, as his father now dispenses his medication. However, he also said that the Lexapro box was in his possession when his father was away in Thailand.

I also consider the evidence Mr Petrovic gave in relation to the date he is due for his next script of Lexapro to be confusing. Initially, he said that he had received a script approximately two months ago, and that he would soon need to consult his general practitioner to obtain another. However, at another stage of his evidence, Mr Petrovic said that his scripts lasted for a period of six months. I found it difficult to reconcile his differing answers regarding the length of his Lexapro scripts, in circumstances where he claims to be taking such medication on a daily basis.

Mr Petrovic said that he has to take Lexapro at the same time each day, and that if he forgets, he cannot then take it for the rest of the day. He then said that he takes it at 8 a.m. each morning. It appears inconsistent to me that Mr Petrovic could forget to take his medication each morning, yet also claim that his father now dispenses such medication each morning. It is further difficult to reconcile this evidence with that of Mr Petrovic's father, who claimed that he often has to wake Mr Petrovic at 9.30 a.m. to get him out of bed.

I was further confused by Mr Petrovic's explanation as to the way in which he received his medication whilst in Thailand. At one stage, he said that his fiancée kept the medication and gave it to him. On his most recent trip to Thailand, however, Mr Petrovic said that his father had been with him, and had given him three or four tablets at a time. In re-examination, Mr Petrovic said that whilst in Thailand, his dad would give him 'like half a sheet'. Initially, he said that this equated to approximately 12 tablets, before later stating that his Dad usually gave him 'a consistent six tablets which would be enough for three days'. I considered the entirety of Mr Petrovic's evidence in relation to the dispensing of his medication to be confusing and unconvincing.

I also note that in Mr Petrovic Senior's affidavit, he did not state that he now dispenses his son's medication.

At the conclusion of protracted evidence regarding his use of Lexapro, Mr Petrovic gave the following evidence:

Q: 'If it's said that you're a regular taker of this medication, likewise, that wouldn't be true either, is that fair to say?---

A: No, I don't take my medication regularly, that's correct.'

Having considered the evidence in its entirety, I am not satisfied as to the frequency with which Mr Petrovic actually takes his medication.

My adverse finding in relation to Mr Petrovic's use of medication, also impacts upon the medical opinions offered by both Dr Weissman and Dr Turnbull, both of whom relied upon the accounts given to them by Mr Petrovic that he took antidepressant medication on a daily basis.

(iv) In his first affidavit, Mr Petrovic said that he had suicidal thoughts most days. He made no further reference to suicidal thoughts in his most recent affidavit. However, in oral evidence, Mr Petrovic said that he had contemplated taking an overdose of medication in the middle of 2017 and that, since then, his father has dispensed his medication to him.

I note that in his medical report, Associate Professor Doherty detailed that Mr Petrovic had taken an overdose, which resulted in vomiting for three days and an admission to an emergency department. However, Mr Petrovic did not refer to this in either of his affidavits or his oral evidence.

Further, in re-examination, Mr Petrovic said that he had suicidal thoughts a couple of times a month. These variations in the frequency of claimed suicidal thoughts, and the extent to which he ever acted upon them, are sufficiently inconsistent for me to seriously doubt the veracity of Mr Petrovic's claim that he has ongoing suicidal thoughts.

(v) Mr Petrovic told Dr Weissman that he no longer socialised or left the house, other than for necessities. Mr Petrovic also told the Medical Panel that at one stage, he had not gone out for seven months. In cross-examination, Mr Petrovic accepted that such histories were untrue and described them as a 'slight fairy tale'.

(vi) In cross-examination, Mr Petrovic initially said that whilst he was currently disqualified from driving, in the event that his licence was reinstated, he would not drive, as he did not feel up to it. However, I consider this evidence by Mr Petrovic to be disingenuous and an attempt to convey to me that his psychiatric state was so severe that, irrespective of his disqualification, he would be unable to drive.

Mr Petrovic later conceded that he did drive his vehicle, including to drive to a hotel to play the pokies. This concession contradicts his earlier evidence, and was only volunteered by Mr Petrovic when Mr Scanlon directly put to him that he drove to the pokies. Further, Mr Petrovic initially sought to say that he no longer attended poker machine venues on a regular basis. However, upon direct questioning, he admitted that he had last played the pokies only two weeks ago.

(vii) In his first affidavit, Mr Petrovic stated that he experienced flashbacks of the accident, and that he was 'almost constantly thinking about what has occurred.' In his second affidavit, Mr Petrovic said that these flashbacks are now less frequent and occur every two to three weeks.

In May 2015, the Medical Panel considered Mr Petrovic provided a 'changeable account' of his alleged flashbacks, noting that he initially said that he experienced such flashbacks all the time, before later stating that they were only occasional.

In circumstances where I have reservations as to his overall credibility, where the Medical Panel has noted discrepancies and where Dr Van Ammers, in performing an early assessment of Mr Petrovic, did not detect any discomfort, observable anxiety or distress when discussing the accident, I am not prepared to accept Mr Petrovic's self-reporting of flashbacks.[14]

63 The judge dealt with the varying histories given by the applicant in relation to his use of non-prescription drugs, ultimately concluding that she was unsure as to when the applicant in fact took non-prescription drugs or for how long he took such drugs.[15]

64 Having found the applicant to be an unreliable witness, the judge then embarked in her reasons upon an analysis of the objective evidence and the medical reports tendered at trial.[16] In the course of this analysis, the judge noted that there was a delay of over nine months until the applicant sought medical treatment for his psychological upset. This was notwithstanding the fact that the applicant had consulted his general practitioner on two occasions in the latter part of 2011, without mentioning the workplace incident or any symptoms that could be attributable to the early onset of post-traumatic stress disorder.[17]

65 The judge observed that the various medical opinions were heavily dependent upon the accuracy of the applicant's history and, to the extent that those histories were successfully impugned, she said that she gained little assistance from opinions based upon them.

66 As to the applicant's father's evidence, the judge said:

[Counsel for the defendant] submitted that, in circumstances where the defendant had so successfully attacked the reliability of Mr Petrovic's account of his psychological upset and its consequences to him, it was not necessary to challenge his father's evidence as to the same matters.

It is clear that Mr Petrovic Senior is very supportive of his son. He employed him on and off for approximately five years prior to the workplace accident. He paid his rent when Mr Petrovic first stopped working, and later purchased a house that he rented to Mr Petrovic at a subsidised rate. Mr Petrovic currently lives with his father and they often travel to Thailand at the same time.

I note that Mr Petrovic Senior made no reference in his affidavit to his son's non-prescription drug use. This may have been either an intentional omission, or a consequence of Mr Petrovic Senior being unaware of such drug use. Whatever the reason, in the absence of any reference to such a significant matter in the context of a claim for psychiatric injury, and given the extremely close relationship Mr Petrovic Senior has with his son, I am not prepared to attach any weight to Mr Petrovic Senior's evidence.[18]

In circumstances where I have rejected the entirety of Mr Petrovic's evidence on the basis of his impugned credibility, I am most assisted in this matter by the report of Associate Professor Doherty, who concluded that Mr Petrovic's 'history is so unreliable, making a psychiatric diagnosis is difficult and possibly invalid.' Further, Associate Professor Doherty was of the opinion that there has been 'an exaggeration, overstatement and amplification of the reported symptoms.' I share this assessment of Mr Petrovic.

In considering the whole of the evidence in this case, Mr Petrovic has failed to satisfy me that he genuinely suffers a psychiatric condition as a consequence of having witnessed the workplace accident.

I therefore dismiss his application.[19]

68 In the hearing before us, counsel for the applicant accepted that the judge had found the applicant to be unreliable. No issue was taken with that finding. The applicant's case in this Court, however, was that the applicant's father's evidence was not cross-examined at trial, and was therefore unchallenged and ought to have been accepted by the judge.

69 Counsel for the applicant then contended that the applicant's father's unchallenged evidence corroborated important aspects of the applicant's history, and formed a sufficient factual basis for the opinions expressed by Drs Weissman, Schutz and Turnbull. It was then submitted that, on the whole of the evidence, the opinions of those doctors should have been preferred over the opinion of Associate Professor Doherty. Associate Professor Doherty's opinion should have been rejected because, unlike the applicant's experts, he had not been provided with the applicant's father's 'unchallenged' affidavit.

70 Further, the applicant submitted that the adverse credibility findings made by the judge about the applicant did not touch the applicant's father's evidence. The applicant's father's evidence was unchallenged (and was therefore, it was submitted, required to be accepted), and this evidence provided the factual foundation for the opinions expressed by the applicant's three psychiatrists, so that their opinions were admissible and persuasive in all the circumstances of the case. In support of these submissions the applicant relied upon the following passage in Jew v Holloway:[20]

Where the conclusion of the primary judge depends on inferences drawn from evidence that is unchallenged, unanswered or is ostensibly reliable, or facts that have been found but can equally be re-determined by the appellate court, without relevant disadvantage, the appellate court must not then shrink from giving effect to its own conclusion. Even where credibility findings represent an apparent obstacle to appellate intervention, the finding may be so much contrary to compelling inferences of the case that it justifies and authorises appellate interference in the conclusions reached by the trial judge. The observations of Kirby J in Earthline, that credibility findings that left untouched other evidence which required separate evaluation and which may render the judge's conclusion improbable or contrary to compelling inferences, have been applied to justify an appellate review of the evidence itself and the drawing of its own conclusions.[21]

71 Additionally, the applicant submitted that the judge's fact-finding process was erroneous in that the judge rejected all of the applicant's evidence before turning to consider the applicant's father's evidence and any other evidence that might be supportive of the applicant's evidence. Before rejecting the applicant's evidence, the judge was required to consider that evidence in the context of all of the other evidence given at trial. The applicant submitted that an analysis of the judge's reasons shows that her Honour did not take that approach.

72 Moreover, so the applicant submitted, the judge was wrong to reject the applicant's father's evidence. In circumstances where the applicant's father's evidence was unchallenged, it was wrong for the judge to conclude that she would reject it, or give it no weight, merely because there was no reference in the applicant's father's affidavit to the applicant's non-prescription drug use and/or merely because there was an 'extremely close relationship' between the applicant and his father.

73 The respondent, on the other hand, submitted that there was no error made by the judge. It was submitted that the judge was correct to reject the applicant's evidence. Moreover, she was not required to accept any of the applicant's father's evidence, based as it was upon his observations of the applicant. Additionally, and in any event, the acceptance of the applicant's father's evidence was not a sufficient factual foundation for any opinion expressed by Drs Weissman, Schutz and Turnbull, that might be suggested to be supportive of the applicant's case. Specifically, the applicant's father's affidavit did not corroborate the histories given by the applicant to the doctors. Properly analysed, the reports of Dr Weissman, Dr Schutz and Dr Turnbull showed that each of them maintained that, notwithstanding the applicant's father's affidavit, the opinions they had expressed were dependent upon the veracity of the applicant's history.

74 As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff's proceeding.[22] This is particularly so in cases involving psychiatric injuries. Additionally, in such cases, the opinions of medical experts (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff's account.[23] Put shortly, the opinion of any particular expert opinion in a case like the present is usually only as good as the underlying history upon which it is based.[24]

75 The judge was correct to find that the applicant was an entirely unreliable witness. She was also entitled to conclude that she would accept none of his evidence unless it was supported by other evidence that was credible. The applicant's complaint that the judge failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant, without taking into account the corroboration of the applicant's father's evidence, must be rejected. A similar complaint, albeit in the context of a review of an administrative decision, was made in Appellant S106/2002 v Minister for Immigration and Multicultural Affairs.[25] In answer to the criticism made in that case, Gleeson CJ said:

Upon analysis, the complaint is that the Tribunal member did not have regard to the whole of the evidence before deciding whether she believed the applicant/appellant, and did not properly assess the significance of the evidence of the corroborating witness. I am not persuaded that this criticism is justified.

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.[26]

76 Similarly, in the present case, a fair reading of the judge's reasons for judgment discloses that her Honour considered the evidence as a whole, before concluding that the applicant had failed to establish his case. The fact that her Honour's reasons are a sequential analysis of the case is no basis for an assertion that the judge wrongly rejected the applicant's evidence without considering it in the context of the whole of the evidence. Indeed, it appears from her reasons that the judge took into account an inconsistency between the evidence of the applicant and his father in relation to the applicant's drug use which demonstrated a close attention to the totality of the evidence.

77 Much was made in argument by the applicant about the respondent's failure to cross-examine the applicant's father. The significance of this point, however, has to be considered in light of the way applications for leave under s 134AB(16)(b) of the Act are conducted. The procedure was described in Woolworths Ltd v Warfe,[27] as follows:

[T]he application is brought by originating motion. The plaintiff's evidence in chief is not led viva voce, but, rather, is contained in an affidavit. Ordinarily, the only supplementation of such evidence is by way of short oral evidence, bringing the plaintiff's situation up to date. The plaintiff is then cross-examined, sometimes at some length. Most, if not all, of the medical evidence, is put before the court by the tendering of the reports of various medical practitioners, who have treated or examined the plaintiff. While it is not uncommon for some of the doctors to be cross-examined, ordinarily the large majority of the medical practitioners, whose evidence is put before the court, are not cross-examined. Other material - including rehabilitation reports - are also usually tendered. At the end of the day, the trial judge is thus left with a large mass of material, some of which, frequently, is quite irreconcilable.

The procedure, which I have just described, is, in large measure, a reflection of the fact that a serious injury application is preliminary in nature, albeit that an adverse finding against a plaintiff is, in effect, conclusive of the plaintiff's rights. The preliminary nature of the proceeding generally has the effect that the hearing of a serious injury application is not conducted in the same manner as the trial of a common law claim for damages.[28]

78 While there may be cases where the failure to cross-examine a witness who gives independent corroborative evidence in support of an application under s 134AB(16)(b) of the Act is significant so far as the result of such an application is concerned, the present is not such a case. As was observed by McHugh and Gummow JJ in Appellant S106/2002:

In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.[29]

79 More fundamentally, so far as the present case is concerned, the applicant's father's evidence was of observations he made of the applicant, an admitted liar when it came to presenting himself and the consequences said to have been suffered by him as a result of the incident. Moreover, even if the judge had been bound to give some weight to the applicant's father's evidence (which she was not) that evidence could never have been sufficient to found the opinions expressed by the applicant's experts, Dr Weissman, Dr Schutz and Dr Turnbull.

80 None of the applicant's doctors proffered their opinions based solely on the limited matters set out in the applicant's father's affidavit. All of them maintained that the accuracy of the applicant's history, as related to them by the applicant, was an essential part of the material upon which their opinions were based. Much of the applicant's history was not referred to by the applicant's father. Corroboration by the applicant's father on the matters set out in his affidavit, could not have corroborated other matters which the applicant needed to establish in order to make the opinions of his experts admissible.

81 In argument, senior counsel for the applicant[30] submitted that Dr Turnbull was the high point of the applicant's case. Dr Turnbull, however, merely observed that the applicant's father's affidavit corroborated the applicant's account of his functional limitations (especially in Australia). Dr Turnbull said that he maintained his opinion previously expressed 'on the assumption that he [the applicant] has provided a reliable account to me [Dr Turnbull]'. Specifically, Dr Turnbull never said that, on the evidence of the applicant's father alone, he was of the opinion that the applicant suffered from a psychiatric condition of the kind required by the Act.

82 It is no overstatement to say that the applicant's credibility was decimated in cross-examination. Whatever the judge might have been persuaded to accept of the applicant's father's evidence, that evidence was simply incapable of supporting an expert opinion, or a finding, that the applicant had sustained a 'permanent severe mental or permanent severe behavioural disturbance or disorder'.

83 It follows that there is no substance in proposed grounds 1 and 2.

84 So far as proposed ground 3 is concerned, having regard to the lack of reliability of the applicant's evidence, the judge was plainly entitled to accept the opinion of Associate Professor Doherty. The issue is, however, of no great moment because once the opinions of the applicant's experts were set aside (because there was no sufficient evidentiary foundation for them) the applicant's case was lost, without the need to consider any competing opinion.

85 The judge did not have to go so far as to accept the opinion of Associate Professor Doherty. There was no medical evidence upon which the judge could have come to a favourable conclusion to the applicant. That said, we are unable to see any arguable basis upon which it could be said that the judge erred in accepting the opinion of Associate Professor Doherty.

86 The applicant's proposed appeal has no real prospect of success. Accordingly, leave to appeal must be refused.

[1] Petrovic v VWA [2018] VCC 31 ('Reasons').

[4] Although, in another part of his re-examination, the applicant said that he knew 'deep down [he was] not a drug addict'.

[13] Save that he corrected the date of the workplace accident referred to in his affidavits.

[20] [2013] VSCA 260; (2013) 43 VR 243 ('Jew v Holloway').

[21] Ibid 254-5 [33] (citations omitted). See also State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306; Forder v Hutchinson [2005] VSCA 281 [48].

[22] Mobilio v Balliotis [1998] 3 VR 833, 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104 [27]; Veljanovska v Verduci [2014] VSCA 15; (2014) 42 VR 222, 231-2 [39]-[40]; Fenton v AIA Australia Ltd [2017] VSCA 331 [91].

[23] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, 1609 [60] ('Whisprun').

[24] Rowe v Transport Accident Commission [2017] VSCA 377.

[25] [2003] HCA 30; (2003) 77 ALJR 1165 ('Appellant S106/2002').

[27] [2013] VSCA 22 ('Woolworths').

[29] Appellant S106/2002 [2003] HCA 30; (2003) 77 ALJR 1165, 1174 [49].

[30] Who did not appear at first instance.