Reyes v Victorian WorkCover Authority [2026] VCC 351

"'serious injury' means - > > (a) permanent serious impairment or loss of a body function; or

(b) permanent serious disfigurement; or

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

(d) loss of a foetus."

Section 325(1)(a) - permanent serious impairment or loss of a body function

1. Where an injury is alleged to be serious by reason of paragraph (a) of the definition of "serious injury" in s325 of the Act, the term "serious" is satisfied by reference to the consequences to the worker of any impairment or loss of body function with respect to either pain and suffering and/or loss of earning capacity, when judged by comparison with other cases in the range of possible impairments or losses of body function.[1]
2. Where a claim is made that a plaintiff has suffered permanent serious impairment or loss of a body function in accordance with paragraph (a) of the definition of "serious injury" in s325 of the Act, as stipulated in Humphries and Anor v Poljak,[2] the narrative test is to be applied to determine whether an injury can be deemed to be a serious injury. That is, there must be a subjective assessment of the consequences of the injury for the plaintiff. Then, the consequences of the injury must be considered objectively in comparison with other comparable cases to ascertain whether the injury can be described as being at least "very considerable" and certainly more than "significant" or "marked".[3]
3. In making an assessment of the plaintiff's "pain and suffering consequences" resulting from an injury, the Court is required to consider both the plaintiff's experience of pain in addition to the disabling effect of the pain on the plaintiff's physical capabilities and enjoyment of life.[4] It may be necessary to consider the intensity, frequency and duration of the plaintiff's pain by reference to the plaintiff's account of the pain, what he or she does about the pain (for example medication, rest, seeking medical treatment), the medical opinions on the extent and intensity of the plaintiff's pain, and what the objective evidence indicates about the disabling effect of the pain.[5]
4. The extent to which pain derived from an injury impacts the plaintiff's physical capabilities and enjoyment of life includes an assessment of the effect of pain on the plaintiff's sleep; mobility; cognitive functioning; capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life, and enjoyment of life.[6] The disabling effects of pain may also be demonstrated by whether the plaintiff has resumed employment and, if so, what limitations there are on the plaintiff's employment.[7]
   1. The weight to be attached to the plaintiff's account of pain will be determined by the Court's assessment of the plaintiff's credibility.[8] The assessment of credibility will depend on the plaintiff's evidence and the views expressed by examining medical practitioners, and their opinions about the reliability of the plaintiff's accounts of pain.[9]

Section 325(1)(c) - permanent severe mental or permanent severe behavioural disturbance or disorder

1. In a case involving a mental or behavioural disorder, the application of the narrative test involves a two-stage process, identified by the High Court in Transport Accident Commission v Katanas.[10] First, an assessment is required of whether the nature and symptoms of the mental or behavioural disturbance or disorder are subjectively "severe". Second, a determination must be made whether the mental or behavioural disturbance or disorder is objectively "severe" when compared with the range or "spectrum" of comparable cases.[11]
2. Assessment of the severity of an injury will ordinarily be informed by the extent of its symptoms and consequences, including the nature and extent of treatment, and a plaintiff's ordinary activities after an accident compared to before. There is not always a "bright line" between injury, consequences and symptoms.[12]

1. In cases where the compensable injury causes an aggravation of a pre-existing injury or condition, the plaintiff must demonstrate that the aggravation is, of itself, "serious" to succeed in her claim.
2. Applying the principles in Petkovski v Galletti,[13] the consequences of the aggravation injury must be assessed. To undertake the required assessment, the plaintiff must establish the pre-existing injury and what injury was caused by the subsequent workplace accident.[14] This requires the Court to separate out the components of the pre-existing injury from the alleged aggravation injury.
3. The Court is then required to assess the extent of impairment of a body function before and after the aggravation injury[15] and determine whether the additional long-term consequences of impairment (or loss) of a body function[16] consequent upon the aggravation injury, are "serious".
4. Accordingly, the Court, in aggravation cases, must;

(a) first, identify the relevant injuries;

(b) secondly, delineate the impairment consequences of each one;

(c) thirdly, analyse whether the additional impairment caused by the compensable aggravation injury qualifies as a "serious injury" under the Act.

1. This requires a comparison of the plaintiff's condition before and after the compensable injury.[17]
2. These principles apply whether the pre-existing condition has become symptomatic or not.[18]

1. The plaintiff relied on two affidavits sworn by her on 16 September 2024 ("plaintiff's first affidavit") and 29 August 2025 ("plaintiff's second affidavit"). She also gave some short viva voce evidence about her daughter coming to live with her after her husband died. The plaintiff said that her daughter is no longer living with her, but her son and daughter-in-law now live with her at her house. They assist the plaintiff with her daily activities. The plaintiff said, in her short viva voce evidence, "I hardly do anything".
2. The plaintiff was also cross-examined at trial. Additionally, the plaintiff relied on an affidavit of her daughter, Catalina Baltazar, sworn on 29 August 2025.
3. Both parties tendered extracts from their respective court books.

1. The plaintiff was born in the Philippines in January 1956 and is currently 70 years of age. She married when she was around 20 years of age and had two children with her first husband. She separated from her first husband when her children were young. Later, she commenced living with Barry, an Australian man. She migrated to Australia in 1991 to live with Barry, and her children joined her around a year later. When the plaintiff first arrived in Australia, she stayed at home and looked after her children.

1. The plaintiff attended school up until her third year of high school. The plaintiff stated in her affidavits that she did not enjoy school and left to start working. She started a little store selling groceries and then had a larger store at the market.

1. In about 1993, the plaintiff found a full-time job at Marven Poultry in Lilydale, packaging chicken. She worked there full time until around 2003 when all staff were made redundant.
2. The plaintiff then worked full time at Eco Cartridges doing packaging work for about a year, until she was again made redundant.
3. She then worked full time at Norma Pacific, manufacturing car parts for around one year.
4. She then moved to Dental Industries in Bayswater doing packaging work. She was employed as a casual worker but had full-time hours. However, after around six months, all casual workers were let go.
5. Then, the plaintiff began full-time employment at Napoleon Apples in Wandin doing sorting work.
6. In about 2013 or 2014, the plaintiff began work as a process worker with the employer, initially on a part-time basis, although she usually worked full time hours. The plaintiff worked in the cool room and made sandwiches. She had to work quickly and was often tired after work. She did not have restrictions due to a previous right knee injury that she had sustained and, before she commenced work with the employer, she passed a medical check for the job.

1. While the plaintiff was working at Napoleon Apples in Wandin, as I have indicated, she injured her right knee. She made a WorkCover claim which was accepted. She had time off work and saw an orthopaedic surgeon, Mr David Booth, who performed arthroscopic surgery on the plaintiff's right knee on 16 August 2007.
2. The plaintiff pursued a WorkCover claim and court proceedings were initiated. The plaintiff obtained a settlement. The plaintiff had about five years away from work recovering from her right knee injury. She had some ongoing pain in her right hip and also her back.
3. The plaintiff had ongoing problems with her right knee, even after the surgery. She also had pain, as I have said, in her right knee, hips and back on and off over the years.
4. At trial, the plaintiff was cross-examined about her right knee injury. The plaintiff accepted that she had sworn an affidavit about her right knee injury and she agreed she had an operation in August 2007 and had taken about five years off work. She was unsure of the amount she received in the settlement, but when a figure of $60,000 was put to her, she readily conceded that it may have been $60,000 or, indeed, she said it may have been $80,000.
5. At the time of that injury, the plaintiff accepted she was suffering from depression. The plaintiff said she had depression, anxiety and suicidal thoughts that she did not act on because she loves her children. The plaintiff was asked about this and accepted in cross-examination it was correct. The plaintiff accepted she was prescribed anti-depressant medication which she was taking for several years. The plaintiff said she was still taking the anti-depressant medication, Cymbalta, up till now. There was a point where she discontinued that medication because she got better, but now she is taking it again. The GP prescribes the Cymbalta medication.
6. At that time, the plaintiff said she had not separated from her husband. They still lived under the one roof. They still cared for each other. When her husband became sick, she cared for him.
7. In 2011, the plaintiff was diagnosed by Dr Rajan Thomas, consultant psychiatrist, with Major Depression with psychotic features as well as chronic pain and a knee injury. Dr Thomas said the plaintiff had suffered an injury to her knee at work in 2006. The plaintiff was stuck at home and her mobility was restricted. Because she was not getting adequate treatment, the depression became worse and she became tearful. She felt hopeless and expressed suicidal thoughts. Her sleep and concentration were poor.
8. The plaintiff was also cross-examined about consultations she had with Dr Denis Stewart-Holmes at the Croydon Family Practice. Specifically, she was asked about a prescription of Mobic on 20 January 2013. The plaintiff recalled that, because she was experiencing pain in her hand, she was taking Mobic for that. The plaintiff said she used to work in an area where it was cold. She agreed she did not start working for the employer until January 2014 but said in 2013, she still had pain in her hand. The plaintiff could not clearly recall which year - 2013 or 2014 - she started working with the employer. The plaintiff said it was quite a while ago.
9. The plaintiff was then taken to an entry in Dr Stewart-Holmes' notes dated 13 January 2014 which stated the plaintiff was:

"wishing to work in food place > > passed medical

1. The plaintiff agreed she started working with the employer in February 2014.
2. In 2015, the plaintiff wanted to get a permanent disability form from the Croydon Family Practice. The plaintiff said she wanted to cease work at the time due to pain in her hand. The plaintiff also said she had diabetes at the time, but she forced herself to work.
3. The plaintiff was asked about the pain in her hand and about how it affected her ability to work. She said, because of the repetitious nature of her job working in a chicken factory, she experienced pain in both hands. The plaintiff said she mentioned the pain to her GP. The plaintiff said she took some medications and painkillers for the pain in her hand. The plaintiff said she still wished to work despite the pain she was experiencing at the time.
4. On 25 May 2015, the plaintiff learned her husband had been diagnosed with stage 4 lung cancer. Due to his illness, the plaintiff required some time off work from time to time. The plaintiff was her husband's only carer and her husband was going to the doctor. At that stage, the plaintiff was receiving help from her son and daughter to care for her husband.
5. The plaintiff was asked in cross-examination whether her mental health was worsening while her husband was sick with cancer. She readily agreed it was.
6. In October 2015, the plaintiff was receiving Centrelink payments as well as being paid, but that did not last long. The plaintiff said it was not a carer's benefit, but she could not recall what the payments were for.
7. In the plaintiff's second affidavit, she said in 2016, she had low back and left hip pain due to standing for long periods at work.
8. The plaintiff was asked whether she was being prescribed any medication at that time. She believed she was prescribed painkillers in May 2016.
9. On 17 June 2016, the plaintiff attended a different medical practice - Access Medical. On that date, the plaintiff obtained a medical certificate. She was experiencing depression and had problems at home. The plaintiff recalled taking time off work because of her husband's illness.
10. In April 2017, the plaintiff attended her general practitioner about her left knee pain. She did not have any ongoing treatment.
11. The plaintiff took pain medication here and there if she felt pain in her right knee and for pain in both her hands due to the nature of working in the cool room.
12. Gradually the plaintiff said her right knee injury and depression improved and she felt normal again.
13. The plaintiff has also had some problems with diabetes, but her condition has always been treated.
14. In July 2018, the plaintiff also obtained another medical certificate from Access Medical to take time off work to look after her husband.
15. The plaintiff was cross-examined about a consultation she had with Dr Stewart-Holmes on 28 August 2018 in which the note recorded that she said:

"some aches & pains > > Partner still alive > > Feeling depressed > > Unsure if can work > > Discussion +++."

16. The plaintiff recalled that conversation. The plaintiff agreed she was struggling at that time with working and also caring for her husband. She also agreed she had her own physical pain to deal with at that time and that it was difficult while she was also working.
17. When she was cross‑examined, the plaintiff recalled that at that time, she was working variable hours, sometimes 38 hours a week, sometimes 24, sometimes 40. She was working part‑time, five days a week. When her husband was sick, she did not agree that she was working shorter hours. She said her husband was very independent.

1. The plaintiff claims that on or around 23 November 2018, she started work at about 6.30am. She worked until her normal lunch break at about 10.45am or 11.00am. Her daughter brought her lunch.
2. At the time the plaintiff suffered her injuries, the plaintiff had gone outside to get her lunch from her daughter and was moving back through the front door of her workplace.
3. As she entered, crossed the mat and stepped onto the tiled area, which was wet, the plaintiff's right foot slipped and the plaintiff fell heavily onto her right side. She hit her hip on the ground and stretched out her right arm to break her fall. The right side of her head hit the ground. The fall jolted the plaintiff's whole body.
4. On the day of the injury, the plaintiff's supervisor, Eric, took her to her doctor, Dr Stewart-Holmes, at the Croydon Family Practice. The plaintiff consulted Dr Stewart-Holmes and was sent for an x-ray of her right shoulder that day. She was given time off work.
5. The note of the consultation was read to the plaintiff when she was cross-examined about the consultation. The plaintiff was asked whether she recalled if the GP was testing the plaintiff's range of movement when she attended that consultation. The plaintiff said it was hard for her to remember. The plaintiff accepted that if the GP had written something in the note, then the GP's notes were probably accurate.
6. On 25 November 2018, the plaintiff submitted a WorkCover claim which was accepted.

1. On 26 November 2018, the plaintiff returned to the Croydon Family Practice. She was told there was no fracture to her right shoulder; however, she continued to have pain in both her shoulders which she mentioned to her doctor. The plaintiff was referred for an ultrasound.
2. On 29 November 2018, the plaintiff attended Dr Parvathy Murali at Access Medical. The consultation note recorded:

"Script > > needs script for her Diabetes medications > > Seen GP in another clinic alst week [her PREVIOUS GP ] and was given emdical certifcate fro work for a week as she has pain in rt shoudler doing work in her work palce > > Now she found out it may be workl related injury as her supervisor swa in CCTV footage at work as Marcela fallingdownAsking for work cover certifvate for the certifctae gievn by other GP > > Plan Discussed the sisues and advised i avnnot do back dated work cover certifcate > > She has to see the GP whom she ahs seen and got medical certifcate and discuss the issues > > Advised diabetic care > > Aslo expaliend the work cover certifcate process ehre and the mmoney she has to pay upfront of the certifcate Evben that one i can strat form today and not from lastweek." > > (sic)

3. The plaintiff was asked whether she was experiencing shoulder pain at work before the injury she sustained on 26 November 2018. The plaintiff agreed she was experiencing pain before the fall. It was her left shoulder that was slightly painful, but after the fall, it was her right shoulder which was "severely" painful.
4. On 30 November 2018, the plaintiff attended Dr Stewart-Holmes again about left shoulder pain. The notes of the consultation again recorded good range of movement and that the plaintiff was also experiencing pain in her right shoulder and hip. When cross-examined, the plaintiff agreed that was the case. The plaintiff was referred for an ultrasound of both shoulders.
5. On 3 December 2018, the plaintiff attended her general practitioner because the pain in the plaintiff's right hip was bad.
6. On 6 December 2018, the plaintiff had an ultrasound taken of both shoulders. The results of the ultrasound showed clinical features compatible with bilateral adhesive capsulitis with limited shoulder movements and pain. There was a partial thickness tear of the subscapularis 4 millimetres in length in the right shoulder. The subacromial bursa had thickened and it was impinging with abduction. There was also degenerative change of the AC joint.
7. The left shoulder also had a partial thickness tear of the subscapularis 6 millimetres in length and a partial thickness tear of the anterior and mid third supraspinatus fibres, 8 by 14 millimetres. Again, the subacromial bursa had thickened and was impinging with abduction.
8. The plaintiff recalled she also, around that time, started seeing her other general practitioner at Access Medical Centre, although the notes of the clinic suggested that occurred from 29 November 2018.
9. On 12 December 2018, the plaintiff had a final consultation with Dr Stewart-Holmes.
10. The plaintiff remained off work and had pain in her shoulders, right hip and in the right side of her face. She was sent for physiotherapy which started on 19 December 2018. She was also referred for an MRI scan of the right side of her face.
11. When cross-examined, the plaintiff recalled having both x-rays and ultrasounds of both shoulders.
12. On 7 January 2019, the plaintiff attended Dr Murali at Access Medical. The notes of the consultation recorded:

"Reason for visit: > > Worker's Compensation certificate > > Ongoing pain in left shoulder and whole body > > Seeing ohysio for work related injuey > > Still not ready to go back to work > > Will get report form Physiotherpaist after few sessi[o]ns this week and next week > > Not able to elevate shoudlers fully More pain in left > > Assessment Not yet ready for return to work plan > > Plan Work cover certifcate completed and given copy of the same to her > > Review in 3 weeks with Physiotherapist report > > Will come for diabetic care paln next week."

1. When cross-examined, the plaintiff accepted that the note recorded "ongoing pain to left shoulder". The plaintiff said she was experiencing pain on both sides, but at the time, there was probably more pain on the left side because of what she had experienced from her job. The plaintiff was asked whether it was her work duties or her fall that had caused the pain. The plaintiff said both were the reasons for the pain. The plaintiff said her pain was aggravated by the fall.
2. On 25 January 2019, the plaintiff again attended Dr Murali and the consultation notes recorded:

"Reason for visit: > > Worker's Compensation certificate > > Stress > > came for work cover certifcate Doing physio for SHOULDER INJURY AND PAIN > > got REPORT from phsyio for return to work plan [See letter from physiotherapist for details] > > Known type 2 DM and is on MEDICATIONS > > Stressed at home due to her husbands illness > > Denies depression > > Very stressed about her work issues and going abck to work > > Ongoing ear pain in rt ear and she thinsk it is due to the fall > > On examination normal > > Wants referral to see ENT specialist under work cover or so > > Assessment > > left shoulder injury im[p]roving with phsyio > > Retyurn to work plan as per phsyio report > > Stress /PSYCHOSOCIAL not due to work issues > > No acute self ahrm ideas reported > > Plan Discussed the issues and advised about return to work plan > > Explained to her the pain in left shoudler will improve slowly > > Offered tos ee Speclaist for steroid injection but not keen for it > > Trial light work as per phsyio paln and see > > Refer[r]al to ENT suregon given and she will make appointment for the same > > Offered support and cousneling for stress > > Advised healthy eating and regular exercise > > Advised relaxation and coping methods to deal with stress > > Diabetic care advised > > Review after trial[l]ing light work and see in 2weeks time." > > (sic)

3. The plaintiff was also cross-examined about this note at trial. I shall return to a discussion of this when I consider issues pertaining to the plaintiff's credit.
4. On 29 January 2019, the plaintiff started to see Dr Robert Molnar at Access Medical Group regularly. She saw Dr Molnar at Access Medical Group on that day. He identified a bilateral painful arc syndrome, as well as right temporomandibular joint dysfunction and an Adjustment Disorder with depression requiring psychiatric consultations to manage.
5. On 1 February 2019, the plaintiff underwent the MRI scan of the right side of her face, specifically the temporomandibular joint and the mandible. She was referred to a specialist facial surgeon, Professor Michael Stubbs, for assessment.
6. On 17 September 2019, the plaintiff consulted Access Medical for a physiotherapy visit. She agreed when cross-examined, that at that time, she was teary and emotional, and she was not ready to return to work. On 24 September 2019, the plaintiff attended another physiotherapy visit at Access Medical. Again, she was very teary and emotional.
7. The plaintiff sought a specialist referral and was referred to Mr Rohan Price, orthopaedic surgeon, who she first saw around 16 December 2019. The plaintiff was sent for an ultrasound of both shoulders, which was performed on 16 January 2020. The ultrasound showed bilateral adhesive capsulitis.
8. The plaintiff saw Mr Price a few more times. He did not recommend surgery and organised cortisone injections into each of the plaintiff's shoulders. The injections eased the pain at first, but the pain returned. As time went by, the plaintiff was able to move her arms progressively less.
9. The plaintiff continued to see her general practitioner and psychiatrist. She took various medications such as painkillers and anti-inflammatory medication. She kept doing physiotherapy.
10. From 4 August 2021, the plaintiff started to see a new psychiatrist, Dr Vinit Mathur. She has now stopped seeing the psychiatrist she had previously been seeing.
11. In 2023, the plaintiff's husband, Barry, died.
12. On 26 March 2024, the plaintiff attended Dr Mohammad Karim at Access Medical. She was complaining of pain all over her shoulders and of back pain. The plaintiff was asked whether she raised with the doctor that she wanted to get back in to dancing and yoga. The plaintiff said she enjoyed dancing. She was not so concerned about yoga, but dancing and walking were her hobbies.
13. In 2025, the plaintiff attended Dr Samuel Jiang at the Greater Knox Family Practice. She said she had complained to Dr Jiang of pain in her right shoulder over the past 12 months.
14. The plaintiff continues to see Dr Jiang as needed.
15. She continues to have physiotherapy once a week to once a fortnight with Sheena at Back in Motion. She is currently taking various medications, including;

(a) Meloxicam/Mobic, 15 milligrams each night;

(b) Panadol Osteo, 665 milligrams, two tablets, three times a day;

(c) Norflex, a few days a week before bed; and

(d) medication for diabetes and high blood pressure.

1. The plaintiff returned to work for three hours a day, three days a week, on light duties, in about March or April 2019. At that time, she was still in pain, and her shoulders were still very sore. She had pain in the right side of her face, and headaches. She was not coping.
2. In May 2019, the plaintiff stopped doing the light work because of her injuries. She has not worked since.
3. On 15 September 2021, the plaintiff's employment was terminated and her weekly payments of compensation ceased on 24 June 2022. After that, the plaintiff began to receive the old age pension. The plaintiff was asked about when she would have retired but for the fall she had suffered. She was asked whether she would have retired at the age of 66 and-a-half years, which was the age she would have qualified for a pension if the accident did not happen. The plaintiff said, "Perhaps not," because she was happy doing her job.
4. In cross-examination, it was suggested to the plaintiff that she was already having issues with her hand at that time and she herself was querying whether she could continue and it was likely she would have stopped work. The plaintiff said she continued taking medication and it was helping, and she enjoyed her job and wanted to keep working.

1. The plaintiff said in her first affidavit that she continues to have pain in her right shoulder all the time. She said the right knee pain worsened after her fall in November 2018. Sometimes she can ignore the pain, but it is always there. It is strong pain which sometimes flares up and becomes even worse. A flareup can be brought on by trying to do a bit of housework or cooking, although usually those tasks do not precipitate a flareup.
2. The plaintiff said the pain in her right shoulder was giving her the most problems. At the time she swore her first affidavit and overall, she said it was her right shoulder which caused her the most problems.
3. The plaintiff, in her first affidavit, also referred to the fact that she was experiencing pain in her left shoulder and pain in her right hip which was present constantly and for which she had had cortisone injections which had not helped. The plaintiff also referred to the fact that when her right hip pain was very bad, she felt pain in her back also and found it hard to sit comfortably. The plaintiff's right knee pain, she said, had worsened after the fall. In her second affidavit, the plaintiff said she suffered from ongoing jaw pain.
4. The plaintiff's daughter said in her affidavit that her mother very often complains of pain in her shoulders, back and right hip. The pain affects her mother's mood, and she gets irritated easily and is not often in high spirits.
5. Dr Sullivan, interventional pain specialist and specialist anaesthetist, examined the plaintiff on behalf of the defendant on 5 June 2024 (via videolink teleconference) and on 7 May 2025. He described the pain the plaintiff experiences. Specifically, that the plaintiff has pain in her right shoulder and similar pain affecting her left shoulder. Her shoulder pain comes and goes throughout the day and could last from minutes to hours. It was described as a sharp pain which tended to predominate on the right side but could affect both sides. It ranged between 8-9/10 on a numerical rating scale. It was provoked by repetitive movements of the arms and using her arms above chest height, lifting and loading through the upper limbs.
6. Dr Sullivan noted that the clinical findings on examination included reduced cervical range of movement aggravating right-sided neck and shoulder pain. The plaintiff's shoulder range of movement was restricted.

1. In cross-examination, the defendant played surveillance footage in court. The plaintiff was observed in the surveillance footage to be able to lift her arm to some extent. The plaintiff was asked about her ability to lift her shoulder and specifically, whether she can lift her shoulder to reach something high. The plaintiff's response was "not so much". She was pressed about whether she could lift her shoulder at all or could only partially lift it. The plaintiff said most of the time she cannot lift her shoulder. Most of the time if she goes shopping, she asks for assistance. She said she "[does] not carry heavy stuff". The plaintiff said at some level she could not reach something high. She said, however, that she does not do much shopping.
2. The plaintiff also said in cross‑examination that she can open and close her car boot using her right shoulder very carefully. When cross-examined on this point, she asked rhetorically who would do it for her if she did not do it?

1. The plaintiff said when cross‑examined that she would have liked to have kept working because it is better to be working than not. Also, the plaintiff is no longer married, and the aged pension is not very good. She also said she was a good worker and enjoyed work.
2. The plaintiff said that she had limited ability for alternative work. Her spoken English is alright, but other than working as a process worker, the plaintiff's English was not good enough for much else. The plaintiff said she could read basic English but could not read a lengthy document and preferred the assistance of an interpreter.

1. The plaintiff said in her first affidavit that she continued to see her general practitioner. She was prescribed Diclofenac and she was also taking Panadol Osteo and Nurofen. The plaintiff uses a cream her physiotherapist gave her for her shoulders and also uses tiger balm on her shoulders.
2. In her second affidavit, the plaintiff said she was taking meloxicam/Mobic, 15 milligrams each night, and Panadol Osteo, 665 milligrams, two tablets three times a day. She was also taking Norflex a few days a week before bed and medication for diabetes and high blood pressure, and in the course of her evidence in cross‑examination, it became clear she was also still taking Cymbalta for depression.

1. The plaintiff says the pain she experiences in her right shoulder wakes her up every night. Sometimes the pain flares up, and she cannot get back to sleep easily. She is usually tired and under slept because of the lack of sleep.
2. The pain in the plaintiff's right hip interferes with her sleep.
3. In her second affidavit, the plaintiff said she continued to suffer with her sleep. She said it was difficult to get comfortable enough to fall asleep with her right shoulder, as well as her left shoulder and right hip. She wakes up every night with right shoulder pain when she sleeps on her right side. Her left shoulder wakes her also, but less often.
4. The plaintiff said her right hip pain wakes her too.
5. Her right knee pain does not bother her as much as the shoulder pain, although it wakes her up a few times a week.
6. Because of all the pain the plaintiff experiences, the plaintiff wakes up a few times a night and feels tired every morning.

1. Before her fall, the plaintiff used to enjoy going for drives with her family and friends. She now struggles to drive long distances. She used to drive to visit her sister in Bendigo on average once a month. She said she cannot drive that far now because of right hip pain and right shoulder pain.
2. On 4 August 2021, when the plaintiff was seen by Dr Mathur, it was evident the plaintiff could drive a car for short distances. The plaintiff was also observed on the video surveillance footage to be able to drive her car, at least for short distances.
3. The plaintiff was asked about driving her granddaughter to playgrounds in cross-examination. Again, she queried who else would do it if she did not do it herself. She said that she could do head checks. She also only drove on a freeway once in a while and when she did, she only drove at 80 kilometres an hour.

1. The plaintiff said in her first affidavit that, because of her injuries, she needs help with her housework. Her husband, Barry, died in March 2023. Although he had been sick, he still helped with the housework. After he passed away, the plaintiff's daughter came to live with her. The plaintiff's daughter did almost all the cooking and housework. The plaintiff said she could not manage without her.
2. The plaintiff said her right shoulder injury affects her right arm, making it hard to wash, dry and dress herself.
3. The plaintiff's daughter, in her affidavit sworn 29 August 2025, said she first helped her mother with tasks around the house about two years prior to August 2025. In about August 2024, she moved in with her mother so she could provide her mother with additional help around the house. Her mother was, as the plaintiff's daughter observed, really struggling.
4. Since moving in with the plaintiff, the plaintiff's daughter had taken over most of the tasks at home. She does the cooking and cleaning, although her mother tries to help with lighter tasks involved in preparing meals.
5. The plaintiff's daughter said her mother complained of worsening pain when chopping vegetables and stirring or lifting heavy pots.
6. The plaintiff's daughter said the plaintiff can shower and dress herself, but she is very slow. The plaintiff's daughter observes her to be in pain in both her shoulders and her right hip when she dresses.
7. The plaintiff said that she is no longer living with her daughter but is living with her son and daughter‑in‑law, and that they assist her with her activities of daily living.
8. In cross‑examination, the plaintiff was observed on the video surveillance footage to take off her cardigan using her right arm. She was also observed doing various other activities, including closing her garage door and her car boot using her right arm. She accepted in cross‑examination that with respect to her activities of daily living, she was able to change her bed sheets on her single bed.

1. In her second affidavit, the plaintiff said that she tries to get out of the house to improve her mood. She attends local Filipino community groups and attends a group called FilAus which meets once a week in Mentone. The plaintiff attends as often as she can.
2. The plaintiff also goes to the Australian Filipino Community Service meetings once a week in Doveton.
3. The plaintiff attends a group called 'Young Generation' which is a group for Filipino people who are young at heart. She attends the group when she feels up to it, but not regularly. Sometimes the group does karaoke or dancing. The plaintiff said she loves dancing and singing and they had always been a part of her life.
4. The plaintiff said she enjoyed dancing at social events and with friends. She does not dance for very long these days because of her shoulder, hip, back and knee pain. If she dances, she takes Panadol to help relieve the pain. After she dances, she feels more pain and has to take more Panadol.
5. The plaintiff's daughter said that her mother goes out to meet others in the Filipino community. This helps distract her from her pain. She takes pain medication before she goes out and when she comes home, she complains of pain and is very tired.
6. The plaintiff's daughter observed that before her fall, her mother was a much happier person. She often talked about hosting gatherings at her home with people from the Filipino community. She was very social and in between work, she would go out with her friends. She continues to go out with her friends to lift her mood, but when she returns home, she is withdrawn and obviously in pain in her shoulders, back, right hip and right knee.
7. The plaintiff was cross-examined about her ability to meet friends at a shopping centre. She said she does that from time to time. The plaintiff said sometimes she visits friends at their houses and sometimes they attend a restaurant together. The plaintiff says she needs to see her friends to reduce the stress she is experiencing.
8. The plaintiff said she is unable to take her granddaughter out very often, but she sometimes takes her out. She takes her to playgroups and playgrounds in Knox City to make her happy.
9. The plaintiff was asked whether she has been able to establish any other relationships with men. The plaintiff said she had had one other relationship. That lasted for 15 months. The plaintiff said that is still going on now. The plaintiff said that the man is her companion. They do not live together but they catch up regularly.
10. The plaintiff was asked why she did not mention that relationship to any of the psychiatrists she spoke to. She said the relationship only started in October 2024.

1. It was submitted on behalf of the plaintiff that, first, the plaintiff was an honest and credible witness. She gave evidence in a truthful way, noting also that English was not her first language. The plaintiff made appropriate concessions in her evidence as demonstrated when she was cross-examined about Dr Murali's notes of the consultation on 25 January 2019 and specifically, whether the lack of reference to the plaintiff's right shoulder meant her right shoulder was not causing her as much pain as her left shoulder.
2. Secondly, there was nothing in the video surveillance footage played in Court which adversely impacted upon the plaintiff's credibility.
3. With respect to the plaintiff's right shoulder, based on the medical evidence, the plaintiff suffered a compensable injury to her right shoulder. There was no shoulder pathology shown on the radiology undertaken before the plaintiff's fall on 26 November 2018. However, after the fall, Mr Westh, orthopaedic surgeon, diagnosed bilateral adhesive capsulitis with limited shoulder movements and pain, the plaintiff's AC joints were both mildly tender but not overtly vascular on ultrasound and the cuff was intact.
4. Dr Sillcock, occupational physician, agreed that the plaintiff was suffering from bilateral adhesive capsulitis (shoulders).
5. Dr Sullivan diagnosed aggravation of right shoulder pathology precipitating chronic pain, post-traumatic in nature. He also considered the plaintiff had post-traumatic chronic pain with an organic basis resulting from injuries pertaining to events of 23 November 2018 occurring in her place of work.
6. Dr Saxby, consultant orthopaedic surgeon, diagnosed bilateral rotator cuff tendinopathy with some minor restriction of shoulder motion following a soft tissue injury to the plaintiff's right shoulder.
7. Dr Barton, occupational physician, expressed no opinion about the plaintiff's right shoulder.
8. Next, the plaintiff submitted that the right shoulder injury was permanent and, in that regard, Dr Sillcock opined that the plaintiff's condition was unlikely to change significantly in the foreseeable future.
9. With respect to the impairment consequences of the plaintiff's right shoulder injury, the plaintiff submitted that the consequences were serious.
10. It was submitted the plaintiff is permanently incapacitated for work and, accordingly, has suffered a loss of earning capacity of more than 40 per cent. According to Dr Sillcock, occupational physician, each of the plaintiff's physical injuries, including the plaintiff's right shoulder injury alone, rendered the plaintiff unfit for any suitable employment. None of the occupations of light assembler, light packer, retail sales assistant (light), cashier and mail clerk/sorting officer was suitable for the plaintiff because of the restrictions those roles imposed. The plaintiff also had limited education, and her past work experience had all been in semi-skilled factory work. She was also then aged 69 years, which made it almost impossible for the plaintiff to obtain alternative employment.
11. Dr Barton, retained by defendant, provided a report dated 20 October 2022. However, Dr Barton expressed no opinion about the plaintiff's right shoulder and on that basis, his opinion may be disregarded.
12. Although Dr Saxby, upon whom the defendant relied, was of the opinion the plaintiff had capacity to perform her previous role, he noted the plaintiff was then 68 years old and was retired. Further, in addition to returning to her pre-injury role, he considered the plaintiff could perform each of the roles of light assembler, light packer, retail sales assistant, cashier and mail clerk/sorting officer, suggested by the vocational assessors. Despite his opinion, Dr Saxby acknowledged that the plaintiff had some minor restriction of shoulder motion and that the plaintiff was likely to have some level of ongoing difficulty with respect to her right shoulder. Based on the plaintiff's underlying pathology of rotator cuff tendinopathy and lumbar and cervical spondylosis, he considered the plaintiff would be best to restrict herself to relatively sedentary work or light manual work not requiring repetitive lifting or any lifting overhead.
13. A person who did not have these disabilities would be fit for light duties with the injuries which she sustained following the fall.
14. It was submitted the plaintiff's consequences with respect to pain and suffering are serious.
15. Thirdly, the plaintiff suffered a compensable injury, namely a severe psychiatric injury.
16. According to Dr Mattur, the plaintiff suffered from an Adjustment Disorder with depression, anxiety, and a Chronic Pain Syndrome. The plaintiff was candid about her psychiatric history. She had seen a psychiatrist in respect of a work-related injury previously but had recovered well. She was working again in 2014 and continued working until the incident when she fell in November 2018. The plaintiff was not receiving any psychiatric treatment but was taking Cymbalta medication.
17. According to Dr Lewis, psychiatrist, on 16 May 2025, the plaintiff had sustained an aggravation of a pre-existing, partially remitted, Depressive Disorder. Dr Lewis took a full psychiatric history and noted that depressive symptoms were first evident in or around 2007, following a workplace injury. There had been several subsequent GP presentations by the plaintiff with depressive symptoms, predating the injury, but according to Dr Lewis, such symptoms were on the mild end of the spectrum and did not impact the plaintiff in a work or day-to-day sense. Dr Lewis considered the plaintiff's mood symptoms had been "significantly aggravated in the context of a work-related physical injury, characterised by pain, physical issues, occupational incapacity and poor response to treatment".
18. Dr Rathnayake, consultant psychiatrist, diagnosed the plaintiff with an Adjustment Disorder with Depressed Mood which was currently in partial remission. He recommended treatment options for the plaintiff including an increase in the plaintiff's dose of Cymbalta.
19. It was submitted the plaintiff's consequences of the psychiatric injury were both permanent and severe.
20. The plaintiff noted that she was taking Cymbalta medication, but it was accepted she was receiving no treatment other than the medication. Nevertheless, that does not necessarily mean that her condition was not severe.
21. With respect to her employment, the plaintiff enjoyed her work and said she would have liked to have continued to work. If she had not fallen, the plaintiff would still be able to work now. Although the plaintiff, when asked whether she would have retired at the age of 66-and-a-half had the accident not happened, said, "perhaps not", she always said she wanted to keep working and detailed her reasons in her affidavit.
22. According to Dr Lewis, the plaintiff submitted if one was able to hypothetically separate the psychiatric condition from the underlying medical condition, the plaintiff had a theoretical capacity to work up to 12 hours per week from a narrow psychiatric perspective.
23. The plaintiff is precluded from working in excess of 12 hours per week secondary to lowered mood, poor motivation, sleep disturbance and cognitive difficulties. However, in reality, the plaintiff would be at considerable disadvantage in the open labour market relative to able-bodied individuals. The plaintiff would be unable to work on a consistent or reliable basis on the open market when taking account of the chronic nature of her pain symptoms.
24. In terms of work capacity, Dr Rathnayake opined that from a psychiatric perspective, the plaintiff's psychiatric condition did not prevent her from performing the duties of any of the roles of light assembler, light packer, retail sales assistant (light), cashier or mail clerk/sorting officer, those identified as suitable vocations. She had a current capacity from a purely psychiatric perspective to perform the duties of any of those vocations up to 24 hours a week.
25. Dr Rathnayake considered the plaintiff's symptoms were not exaggerated. He considered she is preoccupied with pain and that the death of her husband may have contributed to exacerbate her depressive symptoms.
26. Both Dr Lewis and Dr Rathnayake acknowledged that the plaintiff would have problems working in the future from a psychiatric perspective. The assessment of Dr Rathnayake that the plaintiff can work up to 24 hours per week is a prospective best-case assessment on the basis the plaintiff's prognosis is not poor.

1. The defendant submitted that the plaintiff's injuries do not meet the threshold test for a serious injury.
2. First, the defendant submitted the plaintiff was not credible and had exaggerated the extent of her pain and disability in her right shoulder and the severity of her psychiatric injury.
3. The defendant referred to the surveillance film which was played in court. It was submitted that clearly showed the plaintiff using her right arm. She did not prefer her left arm. She was able to open and close her garage door and the boot of her car; she was able to put small parcels of food into the car and returned to do that several times a day.
4. The defendant also submitted the plaintiff gave answers in cross‑examination to try to assist her case. Reference was made to the consultation with Dr Murali about the plaintiff's left shoulder and, specifically, the plaintiff's answers to the effect that the doctor had got it wrong. The defendant submitted that the plaintiff was being deliberately evasive in the answers she gave to questions about her consultation with Dr Murali in January 2019, and the plaintiff's answers that were given to the questions asked of her were a fabrication and self‑serving.
5. Second, in relation to the injury to the plaintiff's right shoulder, the defendant accepted that the plaintiff suffered an injury in the fall but said it was a soft tissue injury to her shoulder, resulting in bilateral rotator cuff tendinopathy which ought to have resolved. The defendant relied on the opinion of Dr Saxby and the CCTV footage of the fall in November 2018 in which the plaintiff was able to walk unaided.
6. Dr Saxby, the defendant said, had accepted that the plaintiff had rotator cuff pathology in her shoulder but considered the pathology shown on the 6 December 2018 ultrasound of a partial tear of the subscapularis was pre-existing and was not caused by the fall. The plaintiff's right shoulder was degenerative.
7. Although the plaintiff had a slightly decreased range of motion in both shoulders by 10 to 20 degrees, there was no evidence of muscle damage in the shoulder girdle or wasting. There had been no arthroscopic surgery and there was a lack of symptomatology on the x-ray. It was, the defendant submitted, a mild injury.
8. The defendant then referred to Dr Molnar's diagnosis on 12 September 2023 of a bilateral painful arc syndrome. The defendant noted that Dr Molnar had said that the plaintiff had suffered from bilateral shoulder pain for some time prior to her fall and the fall had aggravated the plaintiff's condition. The left shoulder was worse than the right and that was confirmed by the ultrasound. It was submitted Mr Westh's diagnosis did not assist the plaintiff. He considered the plaintiff had a soft tissue injury to her right shoulder.
9. Clinical examination revealed restriction of movement in both the plaintiff's shoulders. There was no indication for any surgical treatment. Dr Sullivan referred to the pathology in the plaintiff's right shoulder and said there had been an aggravation of the pathology in the right shoulder precipitating chronic pain.
10. The pain and suffering consequences of the plaintiff's right shoulder injury, it was submitted, were not serious. The plaintiff continued to have a capacity to work but, in any event, the plaintiff would have retired at age 66-and-a-half years. She is now 70 years of age.
11. Dr Saxby considered the plaintiff had capacity to return to her pre-injury duties and hours. Dr Sillcock said the plaintiff did not have capacity to perform her pre-injury duties, or any of the roles suggested as suitable employment. However, Dr Sillcock did not explain why the plaintiff could not do her pre-injury duties and she did not seek to disentangle the inability of the plaintiff to work, due to her right shoulder injury alone, from the other injuries suffered by the plaintiff. Further, the plaintiff was not asked about the proposed suitable employment options and her ability to work in those roles.
12. The defendant submitted the plaintiff's affidavits were not enough to establish the seriousness of the consequences for the plaintiff. The plaintiff said she experienced pain in her back, face, knee and shoulders, and said all those injuries combined led to her inability to do things. The plaintiff had not disentangled which consequences were referable to the plaintiff's shoulder injury alone.
13. Further, in terms of the consequences, the plaintiff did not show signs of guarding or pain or restriction. She was able to make her own bed. She said she required assistance from her children, but it was not quite clear what that assistance entailed. The plaintiff appeared to lead an active life.
14. In relation to the plaintiff's psychiatric condition, the defendant submitted the plaintiff was suffering from an Adjustment Disorder with Depressed Mood in partial remission. The plaintiff was not having treatment from either a psychologist or a psychiatrist. She was taking Cymbalta, which was prescribed by the plaintiff's general practitioner. There was a lack of detail in the plaintiff's affidavits about her condition, and her evidence was unclear.
15. Dr Rathnayake opined that the plaintiff had experienced an exacerbation of depression following the fall. The plaintiff's psychiatric condition, the defendant submitted, was not permanent. Based on the opinion of Dr Rathnayake, the plaintiff was unlikely to be able to establish permanency because her prognosis was not poor, there had been improvement in her Adjustment Disorder and in her symptoms, and there would likely be an improvement with an increase in Cymbalta. The plaintiff did not meet the threshold to establish that the pain and suffering and loss of earning capacity consequences of her psychiatric condition were severe.
16. In relation to the plaintiff's loss of earning capacity consequences, the defendant submitted the plaintiff had a capacity to work but would have retired at 66 years anyway. This was because she went to the general practitioner in August 2018 and was expressing difficulty with her ability to continue working. She had temporomandibular joint pain and other pain and issues which would have meant she stopped working. She is now 70 years of age.
17. The defendant submitted, however, that if the plaintiff had some residual earning capacity, the plaintiff could work up to 24 hours per week based on Dr Rathnayake's reports. The result was that for any of the jobs referred to in the Recovre report, the plaintiff could not establish that she had suffered a more than 40 per cent loss of earning capacity.
18. The parties agreed at trial that the figure which represented 60 per cent of the plaintiff's pre-injury earnings was $672 on the assumption that the plaintiff had some residual capacity to work as a process worker. If the plaintiff was able to work 12 hours per week at $37.74 an hour, she would earn $452 as a process worker. If she was able to work 24 hours per week, she would earn $904. The plaintiff would suffer a loss of earning capacity of more than 40 per cent if she was only able to work 12 hours per week but would not suffer the loss of earning capacity if she were able to work 24 hours per week.
19. On the assumption the plaintiff had some residual capacity to work as an embroidery machine operator, if the plaintiff was able to work 12 hours per week at $25.29 per hour, she would earn $303. If the plaintiff was able to work 24 hours a week, she would earn $606. The plaintiff would suffer a loss of earning capacity of more than 40 per cent if she was able to work either 12 or 24 hours per week as an embroidery machine operator. However, the defendant's case was that the plaintiff was able to return to her pre-injury duties and had not suffered a loss of earning capacity.
20. In relation to the plaintiff's pain and suffering consequences, the defendant submitted that the plaintiff could leave her house up to five times a day. She had been able to form a 15-month long relationship with her companion. She was able to freely engage in social activities in shopping centres with her friends. Her psychiatric condition was not severely impacting her social ability. She was able to spend time with her granddaughter and she enjoyed that. She was able to perform activities of daily living and, specifically, reference was made to changing her bed sheets. She was able to go shopping and she could leave her house up to three to four times a day and regularly went shopping.

1. The defendant cross-examined the plaintiff about Dr Murali's notes of the consultation with the plaintiff on 25 January 2019 to demonstrate that the extent of the incapacity complained about with respect to the plaintiff's right shoulder was exaggerated.
2. In the consultation notes, Dr Murali did not specifically refer to the plaintiff complaining of "right" shoulder pain. The note referred only to "shoulder injury and pain" and "left shoulder". When the plaintiff was asked in cross-examination whether right shoulder pain was not specifically mentioned because her right shoulder was not causing her as much pain as her left shoulder, the plaintiff responded by querying herself why the doctor had not included reference to right shoulder pain in the note.
3. The plaintiff was asked whether she had a recollection of the consultation. She said she did, but she repeated that she was "still wondering why my right shoulder was not included". The plaintiff was asked again, and she explained that her doctor was in his eighties at the time. She suggested he probably did not include it because of his age. Counsel for the defendant then attempted to clarify that the attendance was with Dr Murali, not the doctor who passed away, Dr Stewart-Holmes. The plaintiff agreed this was Dr Murali and that she remembered transferring to that doctor. She said Dr Murali was the elderly doctor.
4. There was a degree of confusion over whether the plaintiff understood which doctor had written the note; however, I formed the view that the effect of the plaintiff's evidence was that she experienced pain in both her left and her right shoulders and she did not know why Dr Murali had not recorded that she had pain in her right shoulder. She recalled the attendance and she recalled that she had mentioned her right shoulder pain to Dr Murali. The plaintiff had no idea what Dr Murali's note "SHOULDER INJRY AND PAIN" meant.
5. In the end, I did not consider this cross-examination impugned the plaintiff's credit. A doctor's consultation notes are notes created by a doctor. They are created for a specific purpose. They can record matters of fact, but they can also record observations and impressions. Not all relevant matters may be recorded. As AJA Forrest J (as he then was) said in Hettiarachchi v Transport Accident Commission,[19] what a doctor records in their consultation notes is:

"... not intended to form part of the forensic arsenal of the cross-examiner. Caution must be exercised in the use of such material, particularly when the fate of the application or claim may, at least in part, turn upon the accuracy of the asserted admission against interest. This is all the more so when in most serious injury applications and personal injury trials the relevant medical practitioner is not called to give evidence. ... ."

6. The plaintiff maintained that after the fall, she complained to her doctor of pain in both her shoulders. I accept that to be the situation. The cross-examination did not affect the plaintiff's credit.
7. The defendant also played video surveillance footage in court. The defendant admitted that 90 hours and 45 minutes of surveillance was obtained which generated only 2 hours and 9 minutes of film.
8. In the surveillance footage, I observed the plaintiff use her right arm to variously drive her car, open the boot of her SUV vehicle (with the assistance of a press-to-open button), close the boot (which seemed to require a small amount of manual assistance), manually close her garage door, carry various small, and apparently light shopping parcels and bags to and from her car, and remove her cardigan unassisted.
9. The video surveillance footage also depicted the plaintiff walking and sitting in shopping centres, meeting friends and interacting with people.
10. The plaintiff was asked questions about the video footage. She agreed she could drive and queried how else she would get to places. The plaintiff also accepted she lifted bags out of the boot of her car and that she was able to leave home and go out four or five times a day to shop, socialise and meet people. The plaintiff accepted she was able to move her shoulders and agreed she moved her shoulders in the video footage in much the same way she had when she was examined by Dr Saxby on 4 April 2019.
11. The plaintiff disagreed she had exaggerated her pain to her doctors and said she had always been truthful in stating her pain levels.
12. Despite the defendant's submission about the plaintiff's ability to use her right shoulder as evidenced by the video surveillance footage, I did not find that the video surveillance footage impacted the plaintiff's credit.
13. First, as indicated, only a little over two per cent of all surveillance undertaken generated film. The film generated was only a little over two hours in total.
14. Secondly, the surveillance was undertaken on many occasions and at various times from January to October 2025. Surveillance was undertaken between 13 January 2025 and 20 January 2025 (16 minutes, 14 seconds); on 30 January 2025 (3 minutes, 38 seconds); between 10 July 2025 and 15 August 2025 (21 minutes); on 11 July 2025 (7 minutes, 15 seconds); on 26 August 2025 (1 minute, 1 second); on 27 August 2025 (49 minutes, 15 seconds), and from between 28 August 2025 (6 minutes, 6 seconds) and 6 October 2025 (23 minutes, 4 seconds). The surveillance generated only a little over two hours of film in total. I deduce from this that the remaining surveillance footage would not have assisted the defendant.
15. Thirdly, the content of the film was unremarkable. I accept that there were several instances of the plaintiff seemingly appearing to move her right shoulder freely. That does not mean the plaintiff was not without pain or that she had exaggerated her injury. As the plaintiff submitted, there was no evidence of physical effort being exerted by the plaintiff and there was no evidence of how demanding the plaintiff found lifting her right shoulder.
16. Further, the plaintiff's daughter said in her affidavit that the plaintiff takes pain medication before she goes out, and when she gets home, she complains of pain.
17. The defendant suggested that the plaintiff could be observed to walk briskly. It was contended that because the plaintiff could walk briskly, she must have exaggerated her right hip pain. If she had exaggerated her right hip pain, that cast doubt on the strength of the plaintiff's evidence that she was suffering from substantial pain and dysfunction in her right shoulder. In the film I saw the plaintiff walk. It was not particularly fast. It was not particularly slow. The plaintiff was walking. This submission was not made out.
18. Overall, I found the films showed the plaintiff engaging for very short periods in everyday tasks which it was necessary for her to undertake. Nothing I saw on the film undermined the plaintiff's credibility.
19. I found the plaintiff to be a truthful and credible witness. She made appropriate concessions in the evidence she gave when necessary but otherwise gave sensible evidence which was consistent with her case.

1. The defendant tendered an x-ray of the plaintiff's right shoulder dated 27 February 1997. This found that:

"There is an undisplaced fracture through the coracoid process of the scapula. The AC joint and surrounding soft tissues appeared normal. No dislocation of the humeral head in the glenoid fossa was present. The articular surfaces were smooth and regular."

2. X-rays taken on 23 November 2018 (referred to by Mr Westh in his report dated 7 May 2024) showed the right glenohumeral joint was enlocated. There was normal bone alignment. The AC joint was congruent with mild degenerative change. There was no acute fracture.
3. There was also an ultrasound taken of the plaintiff's shoulders on 6 December 2018. The report dated 7 December 2018 found that with respect to the right shoulder, the long head of the biceps and bicipital tendon sheath had a normal appearance. There was a partial thickness tear of the subscapularis 4 millimetres in length. The supraspinatus tendon was generally heterogenous. The infraspinatus had thinned but was also heterogenous. The subacromial bursa had thickened and was impinging with abduction. There were features compatible with inflammation. The acromioclavicular joint showed minor degenerative changes. With respect to the left shoulder, the long head of the bicep tendon was intact. There was a partial thickness tear of the subscapularis noted to be 6 millimetres in length and there were other findings also made.
4. In January 2020, according to Mr Westh in his report dated 7 May 2024, the plaintiff underwent x-rays and ultrasounds of both shoulders with the conclusion that:

(a) first, there were clinical features most compatible with bilateral adhesive capsulitis with limited shoulder movements and pain;

(b) secondly, the AC joints were both mildly tender but not overtly vascular on ultrasound and the rotator cuff was intact.

1. Dr Molnar prepared reports dated 4 January 2023, 6 June 2023 and 12 September 2023.
2. In his report dated 12 September 2023, Dr Molnar noted that the plaintiff had suffered from bilateral shoulder pain for some time prior to her fall. Dr Molnar was of the view the fall aggravated the pre-existing condition. The diagnosis was covered by bilateral painful arc syndrome of the shoulders. The syndrome was worse on the left side. Dr Molnar said the ultrasound confirmed his diagnosis.

Sheena Kirtane, physiotherapist, Back in Motion physiotherapy

1. Ms Sheena Kirtane prepared a report dated 1 August 2025. In her report, Ms Kirtane referred to the plaintiff's injuries, including her right shoulder. Notably, she made reference to a partial thickness tear of the subscapularis muscle, thickening of the subacromial bursa in the right shoulder and she made findings with respect to the left shoulder.
2. She noted that the plaintiff remained limited in the activities she could pursue due to predominantly bilateral shoulder pain, as well as right temporomandibular joint pain and right hip pain. She noted the ongoing need for physiotherapy and the risk of the plaintiff developing frozen shoulder due to her partially limited shoulder range of motion.

1. Mr Westh prepared a report dated 7 May 2024.
2. Mr Westh took a history of the plaintiff's fall. He referred to the fact the plaintiff had complained of intermittent bilateral shoulder pain related to her work, prior to the injury, but she had been able to continue working.
3. After the fall, the plaintiff had a week off work before returning on modified duties. She had difficulty coping, even with reduced hours and days, and ceased work after three weeks. The plaintiff has not returned to work since.
4. On examination, the plaintiff was diffusely tender throughout her cervical spine and in both trapezii. She had restricted range of movement in the cervical spine.
5. Mr Westh opined that the plaintiff's left shoulder condition had been aggravated by the incident on 23 November 2018. He was guarded about the plaintiff's prognosis.
6. He did not provide an opinion about the plaintiff's right shoulder.

Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist

1. Dr Richard Sullivan prepared two reports, dated 5 June 2024 and 7 May 2025.
2. In his report dated 5 June 2024, Dr Sullivan noted the plaintiff's presenting symptoms including right shoulder pain, lateral right-sided hip pain, right-sided jaw pain, lower back pain and left-sided shoulder pain.
3. The right shoulder pain was a constant ache with sharp pain. It was moderate at rest and severe with activity. The pain was relieved by ceasing activity, resting, attending physiotherapy and taking analgesic medications. The pain was aggravated by attempting lifting and carrying objects or weights with her right upper limb beyond a few kilograms.
4. Dr Sullivan noted the plaintiff's past medical history of intermittent bilateral shoulder pain aggravated through repetitive tasks in the workplace whilst employed by the employer. Dr Sullivan noted that the pain was largely self-remitting and the plaintiff did not seek medical attention for it or notify her employer.
5. Dr Sullivan diagnosed aggravation of right shoulder pathology precipitating chronic pain, post-traumatic in nature, in the right shoulder.
6. He classified this diagnosis according to the code in the International Classification of Disease, Volume 11 MG30.20, and said it had an underlying organic basis.
7. In his second report dated 7 May 2025, Dr Sullivan noted the plaintiff presented with pain in her right shoulder and similar pain affecting her left shoulder. Her shoulder pain came and went throughout the day and could last from minutes to hours. It was described as a sharp pain which tended to predominate on the right side but could affect both sides. It ranged between 8-9/10 on a numerical rating scale. It was provoked by repetitive movements of the arms and using her arms above chest height, lifting and loading through the upper limbs.
8. Dr Sullivan noted that the clinical findings on examination included reduced cervical range of movement aggravating right-sided neck and shoulder pain. The plaintiff's shoulder range of movement was restricted.
9. Dr Sullivan concluded the plaintiff's injuries had precipitated and aggravated her right-shoulder pathology.
10. He diagnosed the plaintiff with a chronic post-traumatic pain affecting her right shoulder. He classified this diagnosis according to the code in the International Classification of Disease, Volume 11 MG30.20.

1. Dr Saxby provided six reports, dated 12 April 2019, 21 October 2019, 11 November 2019, 23 January 2025, 3 September 2025 and 8 September 2025.
2. In his report on 12 April 2019, Dr Saxby recounted the circumstances of the plaintiff's fall. He reported that the plaintiff had not worked since the injury until the week of the report, and that she was then working three hours for three days a week and her shoulder pain was increasing.
3. The plaintiff was noted by Dr Saxby to be experiencing pain in both shoulders, with the pain in her right shoulder being greater than the left. She also had right neck and right jaw pain. She had difficulty lifting and pain with most activities.
4. Dr Saxby noted that the plaintiff could drive for short periods of time and was able to do minor household activities.
5. Upon examination, Dr Saxby reported that the plaintiff was able to walk and remove about without difficulty. He considered the plaintiff showed abnormal illness behaviour, stating:

"... when testing range of motion of her shoulder I felt this was not reflective of what she was truly able to do given my knowledge of her condition. ..."

6. Dr Saxby had access to an ultrasound that was taken on 6 December 2018, and it showed a right partial tear of the subscapularis and a left partial tear of the supraspinatus. Dr Saxby's opinion in relation to the plaintiff's right shoulder was that the plaintiff suffered a fall at work and a soft tissue injury to her right shoulder, cervical spine and possibly her temporomandibular joint. She had been treated appropriately, in his view.
7. He considered that the plaintiff suffered a soft tissue injury to her right shoulder and neck but did not believe the plaintiff's rotator cuff pathology was related to her injury. He considered the plaintiff should make a full recovery in three to six months. Until such recovery, his view was the plaintiff was capable of performing her pre-injury duties and hours. However, he believed the plaintiff had a capacity to work on an alternate day roster. At the time of the examination, the plaintiff was able to work three hours a day, three times a week, and he considered was able to gradually increase her hours. He recommended the plaintiff should avoid overhead lifting or heavy lifting.
8. In his report dated 21 October 2019, a month after the initial report, Dr Saxby once again examined the plaintiff and provided his opinion. The report contained an additional educational and occupational history section which detailed that the plaintiff had been working in the same factory for the last five years, although she had not worked since May 2019 in any capacity, having attempted a return to work in April 2019 which had been unsuccessful. The plaintiff maintained she had pain in both shoulders, as well as neck pain and jaw pain, and she had difficulty bending and lifting.
9. Dr Saxby opined that the plaintiff had a soft tissue injury to her shoulders and back and there was pre-existing evidence of rotator cuff pathology. He maintained that he would have expected the injuries to have recovered and the plaintiff physically should have been able to return to work. However, there may have been a psychological element making the return to work difficult. But for the psychological issues, the plaintiff could return to work on reduced hours and gradually build her hours up. He did not consider there were any restrictions required for the plaintiff to return to work.
10. Dr Saxby's report dated 11 November 2019 dealt with the plaintiff's left shoulder which is not presently relevant.
11. Dr Saxby's report dated 23 January 2025 provided an updated report, based on provision to Dr Saxby of various other reports, imaging and his further examination of the plaintiff on 10 January 2025. In his report, Dr Saxby gave a more detailed account of the plaintiff's injury history. He noted again that she had not returned to work. She said she lived with her daughter and partner, she could drive a car, and he considered she could cook and clean with the assistance of her daughter and perform personal care activities.
12. He noted that the plaintiff was taking Panadol, Voltaren, Norflex and Metformin for her ongoing shoulder pain symptoms, especially when they arose from overhead movement. He also noted complaints of lower back, neck, and jaw pain.
13. He observed minor restrictions of shoulder motion and diagnosed bilateral rotator cuff tendinopathy. Dr Saxby said the plaintiff's prognosis was fair, and he observed that all her conditions could usually be managed with simple analgesia, self-management and restriction of activities. There was no surgical intervention necessary.
14. Dr Saxby maintained there was a soft tissue injury to the plaintiff's right shoulder and neck as a result of the workplace fall and he would have expected the plaintiff to make a good recovery.
15. Dr Saxby opined that the plaintiff did not suffer any damage to her back or lumbar spine.
16. In his report dated 3 September 2025, Dr Saxby referred to the plaintiff's range of motion. He said it was an active range of motion and he surmised that the plaintiff had different levels of pain on different days, presumably, when she was examined by various doctors. Dr Saxby did not place too much significance on the actual differences in the ranges of motion. All doctors noted some restriction in the motion of the plaintiff's right shoulder.
17. Dr Saxby opined that the plaintiff should be able to lift her arms above shoulder height, for example to open and close a car boot. He also provided an opinion on 8 September 2025 about an x-ray report dated 27 February 1997 and opined that:

"... The information forwarded to me was an x-ray report dated 27.02.1997 which reports a right shoulder x-ray demonstrating an undisplaced fracture through the coracoid process of the scapula. The AC joint and surrounding soft tissues appear normal. There is no dislocation of the humeral head. Therefore, this report demonstrates that Ms Reyes has had a fracture of her coracoid process which would indicate previous trauma to the right shoulder region. There is no clinical history given but based on the fact that there is coracoid fracture, there must have been a significant force applied to the area of the right shoulder."

18. Dr Saxby considered that the clinical significance of the coracoid process was that there must have been a reasonable amount of force applied to that area and that the injury predated the plaintiff's fall in November 2018. That was the most that could be said. His diagnosis remained the same: either rotator cuff tendinopathy or degenerative disease of the rotator cuff. He said there was probably a soft tissue injury at the time of the fall.
19. The fact that the plaintiff had previously suffered an undisclosed fracture in 1997 did not alter his opinion in any way.

Conclusion on compensable right shoulder injury

1. I am satisfied that the plaintiff suffered an injury to her right shoulder as a result of the fall at work in November 2018. I find that the injury the plaintiff suffered was a tear in her right subscapularis, as demonstrated on the ultrasound taken on 6 December 2018. I also find that the plaintiff may also have had, and I find, some bilateral rotator cuff tendinopathy. This was consistent with many of the medical opinions.
2. I also find that the injury to the plaintiff's right subscapularis, the tear, and the other injuries I have found with respect to her right shoulder, precipitated chronic pain, post traumatic in nature, in the right shoulder. I make these findings because there was no right shoulder pathology in any documents before the Court before the fall. It was not suggested that the undisclosed fracture suffered by the plaintiff in 1997 had not healed and, indeed, Dr Saxby found that there was no fracture.
3. I accept the plaintiff complained of intermittent bilateral shoulder pain related to her work prior to the injury, but she had been able to continue working and there was no suggestion that the plaintiff had any ongoing significant pathology in her shoulder before her fall.
4. On the other hand, the tear in the plaintiff's right subscapularis was evident on the ultrasound taken on 6 December 2018. That tear, together with the tear in the plaintiff's left supraspinatus, particularly if those tears had not been repaired, provide an independent explanation for the plaintiff's ongoing bilateral pain. As I have found also, the plaintiff had some bilateral rotator cuff tendinopathy as well.

Was the Plaintiff's right shoulder injury permanent?

1. I am satisfied that the plaintiff's right shoulder injury at the date of the hearing is, for the foreseeable future, permanent.
2. None of the doctors the plaintiff has seen have recommended that there is any surgical treatment available to her and it is likely, given the chronic post-traumatic pain condition that the plaintiff now is afflicted by, that her injury will persist for the foreseeable future.

What was the Plaintiff's "after injury" earning capacity and is the Plaintiff permanently incapacitated for work?

1. I turn now to deal with the plaintiff's loss of earning capacity consequences. As I have indicated, the plaintiff's pre-injury earning capacity, the parties agreed, based on the plaintiff's taxation return for 2018, was $58,229. This equated to a pre-injury earning capacity of $1,120 per week. So, for the plaintiff to suffer a loss of earning capacity of more than 40 per cent, the plaintiff would have to earn, after injury, less than $672 per week.

1. In his report dated 4 January 2023, Dr Richard Molnar, general practitioner, opined that the plaintiff was not suitable for any work, predominantly due to her psychiatric disabilities. He considered that but for those disabilities, she would be fit for light duties, although he noted ongoing psychological support would be needed to assist the plaintiff to cope with her life and, in that regard, in his subsequent report, he referred to the plaintiff's long history of Depression and her Post-Traumatic Stress Disorder.

1. Dr Sillcock was of the opinion that each of the physical injuries suffered by the plaintiff rendered her unfit for any suitable employment because of the restrictions those injuries imposed. Dr Sillcock noted that the plaintiff had limited education and her past work experience had all been in semi‑skilled factory work. She was also now aged 69 years, which made it almost impossible to obtain alternate employment. Dr Sillcock opined that the plaintiff's condition was unlikely to change significantly in the foreseeable future.
2. Mr Richard Sullivan opined in his report dated 7 June 2024 that the plaintiff could not return to her pre‑injury employment as a process worker then or into the foreseeable future. She had limited transferrable skills, limited English and little prospect of retraining and education. The likelihood of the plaintiff having capacity for suitable employment was effectively negligible. He anticipated that the continue indefinitely.
3. Dr Justin Lewis provided an opinion that the plaintiff could work for 12 hours per week, however, that was based on her psychiatric injuries only.

1. Dr Terry Saxby, in his report dated 21 October 2019, opined that he would have thought the plaintiff should have the capacity to return to her pre‑injury duties and pre‑injury hours; however, there is obviously a psychological component which makes this difficult for her.
2. In his report dated 23 January 2025, Dr Saxby opined that:

"In my opinion Ms Reyes would have current capacity for work in her previous role but I note she is aged 68 and is now retired. Based on my understanding of her injuries I believe she would have the capacity for work if she wishes. > > ... > > She does have the capacity for work if required but based on her underlying pathology of rotator cuff tendinopathy and lumbar and cervical spondylosis she would be best to restrict herself to relatively sedentary work or light manual work not requiring repetitive lifting or any lifting overhead. > > ... > > From [a] purely physical perspective I believe she would have the capacity to perform the jobs listed below: > > a. Light assembler. > > b. Light packer. > > c. Retail sales assistant. > > d. Cashier. > > e. Mail clerk/sorting officer. > > Yes, I believe all these would be appropriate."

3. Dr Barton prepared a report dated 20 October 2022. Although Dr Barton is an occupational physician, his opinion was premised on the plaintiff continuing to suffer from an injury to her left shoulder. He expressed no opinion about the plaintiff's right shoulder, and, in that sense, his opinion is not really relevant.
4. Dr Rathnayake considered the plaintiff's psychiatric condition had impacted her capacity to work. Nevertheless, he considered the plaintiff had a capacity to work 24 hours per week, taking account of her psychiatric condition. That position did not change in his report dated 25 August 2025 and he maintained, from a purely psychiatric perspective, the plaintiff was able to work 24 hours per week; however, he suggested the plaintiff should begin working 12 hours per week and gradually increase her hours.

Conclusion on the Plaintiff's "after injury" earning capacity

1. Having considered the medical evidence, I am satisfied that considering the plaintiff's right shoulder injury alone, the plaintiff is incapacitated for all work. That was the effect of Dr Sillcock's opinion. Dr Sillcock was the only occupational physician who opined about the ability of the plaintiff to work based on her right shoulder injury, and I accept her opinion.
2. The defendant criticised Dr Sillcock's opinion as lacking detail about why the plaintiff would be unable to perform the suggested roles; however, the defendant did not put forward any evidence about what the roles of light assembler, light packer, retail sales assistant, cashier and mail clerk/sorting officer actually involved. It may be the case that Dr Sillcock opined as best she could, based on the information she had.
3. As the evidence stood, from a physical perspective, the basis for Dr Saxby's opinion that the plaintiff could work in those various jobs identified was also unclear. There is no evidence in his reports about what those jobs entailed.
4. The Recovre labour market analysis report dated 28 August 2025, obtained by the defendant, noted that Dr Saxby had recommended that the plaintiff avoid lifting repetitively or lifting overhead. In Recovre's experience, product assembly, packing, cashier and mail sorting roles require repetitive movements, even if the manual handling requirements are light and, therefore, these roles would exceed Dr Saxby's recommended restrictions.
5. Recovre suggests there are other low‑skilled roles that can accommodate the plaintiff's restrictions, such as a factory process worker and machine operator. In other words, Recovre, who had been engaged by the defendant, did not agree with Dr Saxby's opinion that any of those roles identified by Dr Saxby were appropriate.
6. Further, Recovre noted that Nabenet also suggested a retail sales assistant role as a vocational option for the plaintiff. Their vocational assessment report indicates the plaintiff has fluent spoken English communication skills, low level English literacy skills and minimal computer skills.
7. The plaintiff worked as a sales assistant in the Philippines prior to moving to Australia in 1991. However, she has not had recent or local experience as a sales assistant since moving to Australia. Recovre does not believe the role of sales assistant is vocationally suitable for the plaintiff.
8. Although Dr Saxby's said roles such as light assembler, light packer, retail sales assistant, cashier and mail clerk/sorting officer may be suitable employment options for the plaintiff, Recovre did not agree and consider such roles to be suitable employment. The jobs identified by Recovre as possible were process worker and embroidery machine operator.
9. The process worker role identified by Recovre was at a factory in Dandenong. It was suggested the role did not involve overhead lifting. It was a full‑time role across two shifts, a morning and an afternoon shift. Workers typically worked a particular shift. The employer was a food manufacturing business. There was an automatic conveyor belt for all product movements through the packing process. Tasks involved in the job were monitoring the conveyor line, loading box blanks and cleaning tasks.
10. Overhead reaching was not typically required but there was some forward reaching required when adjusting blocks on the conveyor. From the pictures included in Recovre's report, the task also seemed to involve some lifting of box blanks, mostly at around waist height. According to Dr Sullivan, the plaintiff had a lifting and carrying capacity of under 5 kilograms. In the Recovre report, the lifting could involve up to 4 kilograms.
11. In my view, it is likely the plaintiff would not be able to cope with the repetitive physical demands of lifting blank boxes. She may also find the forward reaching beyond her capacity physically, because of her right shoulder injury.
12. Additionally, the plaintiff did in fact try returning to work for three hours per day in 2019 and at that time, had to stop work because she was not coping. Since that time, the plaintiff's pain, it would seem, appears to have increased to the point where Dr Sullivan has diagnosed her with a chronic post‑traumatic pain condition.
13. Even if it is accepted that the plaintiff had some capacity to perform this type of role, she would be unable, in my view, to perform it for eight hours a day. There is no suggestion that the role can be performed part time and, in my view, it is not a suitable role for the plaintiff.
14. The second role identified by Recovre was an embroidery machine operator. The employer in that case operated from a factory warehouse. There were two embroidery machines, shelving and bench areas, as well as computer workstations. Embroiderers were employed to sew company logos onto garments per customer instructions. Employees were required to load data files and set the machine settings. There could be some reaching to about 1500 millimetres in height when retrieving threads from shelves.
15. I pause at this point to note that the plaintiff was not a particularly tall woman. While I did not have evidence about it, from my observation, she did not appear to be much taller than at least 160 centimetres, although obviously that is my observation.
16. This role will require the worker to lift their arm. Forward reaching may also be required when setting the machines. The job also involves garment preparation and sewing and other sundry tasks including trimming and folding garments and placing them in boxes. Workers may be required to carry small bundles in the vicinity of 5 kilograms or less. The maximum weight would be 10 kilograms.
17. In my view, the plaintiff may be unable to cope with the reaching involved or the carrying on a repetitive basis. She may also not possess the required computer skills.
18. Dr Saxby's report lacks specificity with respect to why, in his view, the plaintiff could perform roles as a light assembler, light packer, retail sales assistant, cashier and mail clerk/sorting officer. In any event, although Dr Saxby suggested that the plaintiff was able to perform those roles, his opinion was itself not unqualified. He noted that the plaintiff, at the time he prepared his opinion, was 68 years old. She had retired. She had underlying rotator cuff tendinopathy and lumbar and cervical spondylosis. Based on those injuries, he considered the plaintiff would have to restrict her abilities to sedentary or light manual work not requiring repetitive lifting or any lifting overhead.
19. In the end, because Dr Sillcock is an occupational physician with specialised knowledge of what tasks can and cannot be performed in various occupations with various injuries, I prefer her opinion.

If the Plaintiff is able to work in suitable employment, contrary to the findings I have made, would she have suffered a 40 per cent loss of earning capacity?

1. If, as I have found, the plaintiff is permanently incapacitated for work, it follows that she has suffered a more than 40 per cent loss of earning capacity and is entitled to a serious injury certificate.
2. However, if I am incorrect in my assessment that the roles of process worker and embroidery machine operator are not suitable employment for the plaintiff, I form the view that the plaintiff would not be able to work more than eight hours per week in any event.
3. The plaintiff had trialled a return to work and it had failed. The plaintiff had experienced considerable pain in her right shoulder. The plaintiff's pain has continued since then for many years. Dr Sullivan noted that the plaintiff rates the pain at 8 or 9 out of 10 on a pain rating scale. He describes her condition as a "chronic post traumatic pain condition".
4. The plaintiff has restrictions based on her shoulder, which means she will be unable to carry out repetitive tasks involving lifting or reaching overhead for any length of time. Based on the 40 per cent loss of earnings figures provided to me by the parties, for either job, if the plaintiff was able to work eight hours, the plaintiff would nevertheless suffer a more than 40 per cent loss of earning capacity. It follows that I find that the plaintiff has suffered more than 40 per cent loss of earning capacity and, accordingly, satisfies the test for a serious injury.
5. It is strictly unnecessary for me to consider this question, but I will make some observations, for completeness, about pain and suffering consequences.

Are the pain and suffering consequences of the Plaintiff's right shoulder injury "****serious"?

1. Having considered the plaintiff's right shoulder injury alone, I accept that the plaintiff suffers from very significant pain. It is notable that on examination, as indicated, Dr Sullivan rated her pain at 8 to 9 out of 10 on a pain rating scale, based on her description to him. He said she described intermittent pain throughout the day, the pain occurred every day and many times a day. It was aggravated by repetitive or sudden movements of the neck and her upper limbs. It was exacerbated by walking for more than five minutes, by standing for longer than five minutes and if she lifted loads of more than 4 kilograms.
2. The plaintiff tried to return to work in April 2019 after her fall. She returned for three hours a day, three days a week. However, she was still in pain and her shoulders were still very sore. Although she was experiencing pain in other areas of her body as well, for instance the right side of her face, I find she was unable to work for the nine hours a week at that time. Her pain since then, though, had worsened and is now a chronic post‑traumatic pain condition.
3. The pain the plaintiff experiences requires her to take pain medication. Her daughter said the plaintiff takes such medication whenever she leaves the house, and when she returns home the plaintiff is in pain. Taking pain medication simply to function in daily life is a substantial consequence of an injury.
4. I find the plaintiff's range of motion and shoulder movements are restricted. Reduction in shoulder mobility is a significant pain and suffering and loss of earning capacity consequence for the plaintiff, who worked as a process worker for many years.
5. Dr Sullivan noted that the plaintiff's range of motion was considerably less than might have been usually expected. On the right side she was able to demonstrate 100 degrees of flexion, 100 degrees of abduction, 30 degrees of extension, 40 degrees of internal rotation and 30 degrees of external rotation. When she was seen by Dr Saxby, he also accepted that her range of motion was, to some extent, restricted.
6. I accept that the plaintiff's sleep is disrupted because of her right shoulder pain, particularly when she sleeps on her right side. I accept the plaintiff can perform some activities of daily living. For instance, she was observed in the surveillance footage to be able to remove her cardigan and she said in cross-examination that she was able to change the sheets on her single bed. But, nevertheless, I accept that there has been an impact on her activities of daily living. I accept she requires ongoing assistance with cooking and cleaning from her daughter previously and now, her son and daughter-in-law.
7. I accept that the plaintiff has been able to maintain a social life. I do not consider this to be a consequence of her injury which I take into account. Similarly, I accept that the plaintiff is still able to drive. I do not take that into account in assessing the seriousness of her injury also.
8. Undertaking a subjective assessment of the consequences of the injury for the plaintiff, I find that they are very serious. She experiences them every day in an ongoing way.
9. Considering the consequences objectively, in comparison with other comparable cases, in my view, the plaintiff's right shoulder injury can be described as being "at least very considerable" and certainly "more than significant or marked", and in my view, the impairment consequences from a pain and suffering perspective are also serious when compared with other cases in the range of possible injuries.
10. Having reached that conclusion, as set out in Georgopoulos v Silaforts Painting Pty Ltd,[20] having found that the plaintiff's right shoulder injury constitutes a "serious injury", the plaintiff is entitled to a certificate to bring proceedings. Once the plaintiff can bring proceedings, she can claim for all injuries sustained in the accident, regardless of which injury is a "serious injury".
11. For completeness, however, and in the event that I am wrong with respect to the plaintiff's physical injury, I make the following findings with respect to her psychological injury.

1. I note that the plaintiff saw Dr Vinit Mathur, a consultant psychiatrist, on 4 August 2021. He took a history of the plaintiff's fall and noted that she presented with symptoms of depression and anxiety with chronic generalised body pain since 2018. The symptoms had occurred in the context of symptoms of pain secondary to her work‑related accident. She had previously been looked after by Dr Viren Kothari, psychiatrist.
2. The plaintiff had symptoms of depression, characterised by sadness of mood, feeling tired, and she was finding it hard to focus. She was preoccupied with pain symptoms in different parts of her body. Her anxiety symptoms were in the form of feeling apprehensive, worrying about multiple things, palpitations, shaking and getting upset and angry easily. She was reporting sleeping four to five hours a night. She complained and reported to Dr Mathur that she had pain in various parts of her body, including that she had a partial tear of the subscapularis muscle in the right shoulder and on the ultrasound, had rotator cuff tendinopathy of the left shoulder. Dr Mathur diagnosed the plaintiff as having an Adjustment Disorder with depression, anxiety, and a Chronic Pain Syndrome.

Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist

1. Mr Richard Sullivan, in his report dated 5 June 2024, noted the plaintiff's longstanding history of depression since 2007, with aggravation in 2016 and then significant provocation of her depressive symptoms post injury and the onset of anxiety symptoms thereafter. He noted the plaintiff had seen a psychiatrist previously.

1. Dr Justin Lewis prepared a report dated 16 May 2025. He also noted the plaintiff's history of Major Depression in 2007. He noted the plaintiff suffered from a Chronic Pain Disorder and an Adjustment Disorder with anxiety and depression. She had engaged a psychiatrist and had recovered very well from her previous psychiatric illness, and he noted that she had not required any ongoing psychological care.
2. Dr Lewis said the plaintiff then experienced depressive symptoms in 2010, following another workplace injury. The plaintiff told Dr Lewis she ceased taking the antidepressant medication she was taking after a couple of years. He said the plaintiff, in August 2019, presented with worsening depressive symptoms due to her husband's stage 4 cancer illness. Her husband died in 2023. Dr Lewis' opinion was that the fall had contributed to a significant aggravation of a pre‑existing partially remitted Major Depressive Disorder, and that was effectively his diagnosis. The plaintiff had an aggravation of a pre‑existing, partially remitted depressive disorder. The pre‑existing symptoms were mild and did not impact the plaintiff in a work or day‑to‑day sense. He considered the plaintiff was likely to experience ongoing mood and adjustment difficulties.

Dr Rasanjali Rathnayake, consultant psychiatrist

1. Dr Rathnayake prepared three reports, dated 7 February 2025, 25 August 2025 and 4 September 2025. He diagnosed the plaintiff as suffering from depression and anxiety from 2010 onwards. In August 2018, he noted, according to the documentation provided, that the plaintiff had attended her GP and reported feeling depressed. She had an exacerbation of a pre‑existing depressive disorder secondary to the injury on 23 November 2018 and that occurred in the context of chronic pain.
2. Dr Rathnayake considered the plaintiff's prognosis was not poor and there had been improvement in her Adjustment Disorder with treatment. He considered the plaintiff would benefit from an increase in her dosage of Cymbalta and a course of repetitive transcranial magnetic stimulation.
3. In his report, Dr Rathnayake provided his opinion; however, usually if there was a significant exacerbation of Adjustment Disorder with Mixed Anxiety and Depressed Mood, an increase in the dose of medication would be likely to take place. He noted that the clinical records noted that the plaintiff was "not unwell". In short, his report supported the proposition that the plaintiff was not receiving treatment and had not increased her Cymbalta medication dosage.
4. I am satisfied, had it been necessary for me to reach a conclusion about this, that based on the medical reports, the plaintiff suffered an aggravation of a pre‑existing partially remitted Major Depressive Disorder because of the fall in November 2018, namely an Adjustment Disorder with depression, anxiety and chronic pain.
5. Having made the findings that I have made with respect to whether the occupations of process worker and embroidery machine operator could be considered suitable employment, and having found that neither occupation is suitable employment for the plaintiff, it follows that I do not consider she is able to work for either 12 or 24 hours, from a psychiatric perspective, with respect to those occupations.
6. If it had been necessary for the plaintiff to establish the consequences of her psychiatric injury are severe, I note that this would be a very high bar for the plaintiff to cross. It would require an assessment of whether the nature and symptoms of the mental or behavioural disturbance or disorder were subjectively severe, and then a determination of whether the mental or behavioural disturbance or disorder is objectively severe when compared with the range or spectrum of comparable cases.
7. The evidence, in my view, supports a conclusion that the plaintiff had a pre‑existing psychiatric condition, being a Major Depressive Disorder following a work injury in 2006. She recovered to an extent over time; however, I formed the view the plaintiff was still suffering from some level of depression immediately prior to the fall.
8. It was apparent that there were many reasons for the plaintiff to have continued to have depressive symptoms. On 25 May 2015, the plaintiff learned her husband had been diagnosed with stage 4 lung cancer. She took on the role as carer of her husband. She developed additional pain in 2016 in her lower back and hip, requiring her to be prescribed painkillers. She was experiencing problems at home and on 17 June 2016, she experienced depression again. She continued to feel depressed on 18 August 2018, less than three months prior to the fall at work.
9. I form the view, consistent with Dr Lewis' opinion, that the level of the plaintiff's depression immediately prior to her fall at work was at the mild end of the spectrum. She continued to be able to work and had not reported her depression to her workplace. In that sense, I am satisfied that subjectively, the psychiatric consequences for the plaintiff were severe. Had it been necessary for me to reach a conclusion, I would not have been satisfied that the consequences of the aggravation injury were themselves objectively severe.
10. Assessment of severity ordinarily would be informed by the extent of symptoms and consequences, including the nature and extent of treatment, a plaintiff's ordinary activities after an accident compared to before and while there is not always a bright line between injury consequences and symptoms, I reach the conclusion that the plaintiff's psychiatric condition was unlikely to be severe, first, if it was at the mild end of the spectrum before her fall. It is questionable to what extent that changed after her fall.
11. According to Dr Rathnayake, the plaintiff was on Cymbalta, 60 milligrams daily, at the time of her fall and that did not change. She remained on the same dose. She was not receiving any other treatment. There were no hospital admissions, for instance, and as Dr Rathnayake opined, a severe exacerbation would perhaps have resulted in an increase in her prescription medication.
12. Further, the plaintiff previously had suicidal thoughts when she was suffering from a Major Depressive Disorder, and was noted by Dr Rathnayake not to be having such thoughts when he prepared his report on 7 February 2025.
13. Secondly, clinical records on 7 February 2025 referred to the plaintiff as being "not unwell".
14. Thirdly, even if there had been a significant exacerbation in the plaintiff's psychiatric injury following the fall in November 2018, as suggested in Dr Rathnayake's report dated 25 August 2025, changes to the plaintiff's psychiatric state could not fully be ascribed to the fall. There were other subsequent factors which may have contributed to the plaintiff's psychiatric state at the time of the hearing, including the death of the plaintiff's husband.
15. Fourthly, even if it might be said that the plaintiff's psychiatric injury was severe for a period after the fall in November 2018, which I do not find, based on Dr Rathnayake's opinion in his report dated 7 February 2025, there had been an improvement in the plaintiff's Adjustment Disorder and psychiatric condition.
16. The plaintiff has been able to increase her social activities. She has formed a 15‑month relationship with her male companion. Dr Rathnayake referred to the plaintiff not being socially withdrawn and able to spend time with friends. The plaintiff has joined a seniors group, she is able to go out for lunch and to friends' houses, she is able to attend shopping centres and leave her house up to three to four times a day.
17. Further, and importantly, the evidence of both Dr Lewis and Dr Rathnayake, although differing as to the amount, considered that the plaintiff had some residual capacity for work, taking into account her psychiatric injury alone. That tends against a conclusion that the injury is "severe".
18. For all of those reasons, the plaintiff is granted a serious injury certificate.

(1) Leave is granted to the plaintiff pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 to bring proceedings for recovery of pain and suffering and pecuniary loss damages in respect of injuries suffered in the course of employment on 23 November 2018.

(2) The defendant must pay the plaintiff's costs in accordance with the WorkCover (Litigated Claims) Legal Costs Order 2016, to be determined by the Costs Court in default of agreement.

(a) Senior Counsel's brief fee at $7,517.00 per day for two days, conference fee at $752.00 per hour for two hours' conference, and $907 to take judgment; and

(b) Junior Counsel's brief fee at $3,758.50 per day for two days, conference fee at $375.90 per hour for two hours' conference, and $907 to take judgment.

[2] [1992] VicRp 58; [1992] 2 VR 129 ("Humphries")

[4] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; (2010) 31 VR 1 ("Haden")

[5] Haden (supra) at paragraphs [10]-[11]

[6] Haden (supra) at paragraph [16]

[7] Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 at paragraph [63]

1. [8] Haden (supra) at paragraph [12], citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 ("Dwyer") at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [171]); Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 ("Sabanovic") at paragraphs [142]-[145]

[9] Haden (supra) at paragraph [12], citing Sabanovic at paragraph [142]

[10] [2017] HCA 32; (2017) 262 CLR 550 ("Katanas") per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ

[11] Katanas (ibid) at 555, paragraph [6]. See also for example Dwyer at paragraph [7] per Ashley JA (Nettle and Dodds-Streeton JJA agreeing at paragraphs [1] and [31]); Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [42] (per Ashley JA and Beach AJA); Sutton v Laminex Group Pty Ltd [2011] VSCA 52; (2011) 31 VR 100 at paragraph [89] per Tate JA (Ashley JA and Hargrave AJA agreeing at paragraphs [1] and [115])

[12] Katanas (supra) at 546, paragraph [29]

[13] [1994] VicRp 32; (1994) 1 VR 436 ("Petkovski") at 443

[14] De Agostino v Leatch & Anor [2011] VSCA 249 ("De Agostino") at paragraphs [60]-[61]

[15] Petkovski at 444; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; (2012) 34 VR 309 ("Filipowicz") at paragraph [34]

[17] Filipowicz at paragraphs [31]-[34]

[18] Seckold v Transport Accident Commission [2025] VSCA 18 at paragraph [58]

[19] [2023] VSCA 27 at paragraph [58]

[20] [2012] VSCA 179; (2012) 37 VR 232