Shaw v Transport Accident Commission [2026] VCC 429

"Pt states she fractured her L tib/fib in 2017 > > She had metal work in situ > > Over past couple of weeks she has had inc pain from the lateral aspect of the ankle joint > > O/e some protrusion of the lateral malleolus. No recent trauma"[4]

10. Therefore, as I shall get to, the lack of objective evidence of left ankle symptoms after the accident, and the recording by Dr Cooze of no recent trauma, raises as an issue of whether there is a left ankle injury that is causally related to the accident.
11. To fast forward again, on 9 November 2023 the plaintiff underwent left ankle surgery. Since then, she has been impaired by ongoing pain and restriction for weight-bearing activity involving the left leg.

1. To go back a few years before the accident, on approximately 23 March 2017 the plaintiff injured her left ankle playing netball ("the netball injury"). She attended Peninsula Health where it was recorded that she had an inversion injury from a game of mixed netball. There was radiologically diagnosed a Weber B type left ankle fracture.[5]
2. The plaintiff then returned to hospital for surgery by way of open reduction and internal fixation on 4 April 2017.[6]
3. Pausing here, in the plaintiff's evidence, the treating surgeon for this initial surgery was said to be Mr Keith Winters, orthopaedic surgeon. However, on a closer look at the evidence, Mr Winters' actual involvement in the plaintiff's treatment at that time is unclear. In fact, the hospital discharge summary records state:

"Open reduction internal fixation of L) displaced fracture (Maister, Ambikaipalan (for Mr Winters) 03/04/2017".[7]

4. The netball injury and surgery was also described in a report from Peninsula Health dated 1 July 2025 that suggested the surgery on 4 April 2017 was performed by "Maister/Ambikaipalan".[8]
5. The relevance of who performed the surgery on 4 April 2017 is an issue I shall return to and may be relevant to an assessment of some of the other evidence.
6. But as is obvious, regardless of who performed the surgery on 4 April 2017, the plaintiff had a left ankle injury several years before the accident.

1. The proceeding before the Court is an application by the plaintiff pursuant to s93(4) of the Transport Accident Act 1986 ("the Act") for the leave of the Court to commence a common law proceeding on the basis that she suffered a "serious injury" in the accident.
2. Specifically, the plaintiff claimed to have suffered a serious long-term impairment or loss of a body function, namely the left lower limb. The injury was described by her, based on medical evidence, as a ligamentous injury to the left ankle, requiring surgery.[9]
3. The plaintiff contended that the netball injury was not causally related to her current impairment of left ankle function. She said that the accident had caused a new injury to the left ankle, because Mr Winters' view was that there had been a complete recovery from the netball injury.[10]
4. About Mr Winters, the plaintiff said that the principle witness in the case was not herself but rather it was Mr Winters.[11] During closing submissions she described him as "the key". She said Mr Winters was best placed to provide opinions about causation because he had performed the surgery after the netball injury, he examined her post-operatively and then had the benefit of seeing her again after the car accident.[12]
5. The Transport Accident Commission ("TAC") is the defendant to the plaintiff's "serious injury" application. The defendant did not formally concede that the plaintiff had a "serious injury", but it did not seek to agitate that issue.
6. Rather, the defendant denied that the plaintiff had suffered a left ankle injury that was caused by the accident.
7. Appropriately, the defendant conceded that if the Court concluded that the plaintiff did injure her ankle in the accident and did develop left ankle symptoms soon after the accident, then the plaintiff's claim for "serious injury" would succeed.
8. The defendant highlighted the unreliability of the plaintiff as a witness. It highlighted the lack of any objective note of ankle symptoms immediately after the accident and the failure of the plaintiff to mention the accident when she went to see Dr Cooze on 28 December 2020.
9. Although there was no formal concession, effectively the defendant accepted that the plaintiff had an injury to her left ankle that produced impairment consequences that are serious but contended that the injury and impairment consequences were not caused by the accident.
10. Therefore, the issue to resolve is whether the plaintiff suffered a left ankle injury in the accident or whether her subsequent symptoms and need for surgery on 9 November 2023 related to the netball injury or broadly is simply unrelated to the accident.
11. Otherwise, the proceeding was conducted in the usual manner. The plaintiff tendered documents from her court book, including three affidavits sworn by her and an affidavit from her mother, as well as medical evidence. The defendant similarly tendered documents from its court book, including medico-legal evidence and several sets of clinical records from health practitioners who have treated the plaintiff.
12. I have considered the tendered evidence but shall only refer to it to the extent necessary for contest, or to explain the result.
13. Otherwise, the legal principles are mostly not in dispute. The plaintiff bears the overall evidentiary onus, for the purpose of a gateway proceeding, to establish that the accident was a cause of injury to her.

1. Next, as has been said many times, in "serious injury" applications the credit or the reliability of the plaintiff is often a critical issue for the result.
2. Also, as has been said many times, the opinion of medical experts is often only as valid as the history presented to the expert.
3. In this case, the plaintiff conceded that she was an unreliable witness.[13] That concession is hardly a surprise because she was an unreliable witness.
4. I will set out a few examples of the unreliability of the plaintiff's evidence, but given the key issue of causation, I will focus more on her evidence and unreliability for that issue.

1. First, the plaintiff's evidence about her work history before the accident was plainly wrong on several occasions, including in her first affidavit.[14] In that affidavit she described how she had worked at the Frankston Hospital up to 2016, until she left to take up work as a nurse at an aged care facility called 'The Bays', and how the hours of work were better at The Bays. This pithy description of her work history turned out to be false.
2. The plaintiff had a chance to correct the false work history in her second affidavit[15] but did not do so. Instead, she described how she was worried about her future. She said: "I worked so long towards becoming a personal care attendant, and when I made it I earned a great income. Now, however, I don't see how I could ever return to such a job due to the amount of walking it involves. I am not sure what I will do now."[16]
3. Then in her third affidavit she said that after consulting her pay records, she wished to correct her work history.[17] She said she then realised that after leaving Frankston Hospital she worked for Mornington Shire Council ("the Shire") for two and a half years in the provision of home help, before she did a few casual shifts at The Bays in August 2019.
4. The plaintiff did not say in her affidavit when or why she had consulted her pay records. She was cross-examined about that by the defendant, in the context of a conference that had occurred between the parties,[18] at which she had been shown her pay records. The defendant challenged her evidence that implied she was working at the time of the accident, when she was not. The plaintiff said:

"I had started at The Bays, and at...the time of the accident I had not received my next roster of shifts".[19]

5. The plaintiff's explanation that she was waiting for the roster to come out, for a workplace where she had worked three causal shifts about seven months before the accident, lacks credibility. The defendant squarely put to her that she had tried to create a false impression of working full-time before the accident and asked her what she had to say about that. She said: "Nothing".[20]
6. But even the correction in the third affidavit was unreliable. It turned out during her oral evidence that she had gone on maternity leave in the early part of 2018 from her job with the Shire, before extending her maternity leave and then resigning in September 2019. Therefore, apart from three causal shifts at The Bays in a week in August 2019, the plaintiff had been off work since early 2018.
7. Her inaccurate work history was repeated several times to medical examiners.
8. For example, to her medico-legal witness Mr William Edwards, orthopaedic surgeon, the plaintiff said she worked in aged care before the accident, in a casual job, but generally working 7 am in the morning to 3 pm in the afternoon, 5 days a week and that she had been doing that for 4 years.[21]
9. As another example of a false history about work to one of her medico-legal witnesses, to Dr Khayyam Altaf, senior medical advisor - occupational medicine, the plaintiff said that at the time of the injury she "was working as a PCA at a Residential Aged Care Facility (The Bays - Hastings) a position she held for 1-2 years".[22]
10. Next as an example, the history given to Mr Raf Asaid, orthopaedic surgeon who also provided a report on her behalf, said prior to the accident she "held a full-time position as a personal care assistant at The Bays Aged Care Facility. She worked five days per week, around 40 hours per week".[23]
11. Another example is the history given to Dr Terence Saxby, an orthopaedic surgeon who examined her at the request of the defendant, where the plaintiff said that at the time of the accident she "was working as a personal care assistant at an aged care facility. She was working on a part-time basis but in nearly full-time hours".[24]
12. The plaintiff's unreliable work history is relevant because it highlights her overall unreliability. The issue is then how that effects a consideration of her evidence that she injured her ankle in the accident. Of course I must consider the whole of the evidence, but where there is no documented or objective evidence of a left ankle injury at the time of the accident, her evidence must be seen through the lens of her unreliability.

Plaintiff's evidence of left ankle injury in the accident

1. In her first affidavit the plaintiff said that after the accident she was taken by ambulance to the Frankston Hospital. She said she recalled suffering pain in her right hand, neck and lower back. She said:

"I also clearly recall suffering from pain in my left ankle which had become jammed against the car's firewall following the accident. I have been told there is no mention of left ankle pain in the ambulance or hospital notes. I am unable to say why that is, but I definitely recall hurting my left ankle".[25]

2. The plaintiff said nothing more about the circumstances of the accident in the second and third affidavits.
3. There is a simple explanation for why the ambulance or hospital did not record a complaint of left ankle pain, which is because the plaintiff probably did not make such a complaint. In fact, in her first affidavit she did not suggest that she had told the ambulance or the hospital of a left ankle injury.

Cross-examination about the onset of left ankle symptoms after the accident

1. The plaintiff was cross-examined broadly about left ankle symptoms before and after the accident. For present purposes it is sufficient to focus on her evidence of symptoms after the accident.
2. The plaintiff was challenged during cross-examination about whether she injured her left ankle in the accident, by reference to the lack of any contemporaneous clinical note of left ankle symptoms before the general practitioner attendance on 28 December 2020.
3. As a general overview, she was an unimpressive and unconvincing witness about the topic of left ankle symptoms caused by the accident.
4. In fact, during-cross examination the plaintiff eventually accepted that she did not complain of left ankle pain to the ambulance officers.[26]
5. But the plaintiff made no such concession about what she told the hospital staff. Instead, in cross-examination she insisted she mentioned her ankle was sore. She said there was no obvious swelling, bruising, or open wounds.[27] She said that she did "tell them" at the hospital, that she told a nurse who then looked at her ankle, but she could not explain why there was no mention of that in the hospital notes.[28]
6. The plaintiff's oral evidence of an examination of her left ankle at the hospital lacked credibility. If that event had occurred, I would have expected that evidence to be in her affidavits. It also does not fit with the fact that all the other injuries she described were recorded or the hospital note that she was "walking without issue".[29]

1. Moving next to the cross-examination about general practitioner attendances after the accident, I start by noting that there is no report from any general practitioner the plaintiff attended around the time of the accident. The evidence of those attendances comes from the notes of three clinics that the plaintiff consulted as tendered by the defendant and on which she was cross-examined.
2. On 16 March 2020, the plaintiff attended Dr Cameron Gibb for a redo of a right scaphoid plaster. A nurse at Dr Gibb's clinic having earlier examined the plaintiff and recorded that the plaster felt tight on the plaintiff's right wrist.[30]
3. Later, on 16 March 2020, the plaintiff attended at a different clinic and saw Dr Weng Keong Lim, who obtained a history of the accident and of:

"pain at neck, right shoulder, abdomen, lower back".[31]

4. Then on 18 March 2020, the plaintiff attended Dr Allara Walsh-Howe, who recorded a history of the accident and recorded symptoms in the plaintiff's neck, right wrist/forearm and outer right clavicle.[32]
5. On 23 March 2020, there was an attendance on Dr Peter Keillar, with the reason for contact being the accident and the attendance being for right wrist pain.
6. I will not go through the numerous general practitioner attendances before 28 December 2020. The short point is the plaintiff attended doctors for a range of health issues, including describing issues related to the accident, with no mention of left ankle pain until 28 December 2020. That was the attendance with Dr Cooze who, regarding the left ankle pain, made a note of "no recent trauma",[33] as I set out earlier.
7. The plaintiff was referred for an x-ray of her left ankle after she saw Dr Cooze. The report of that x-ray is dated 30 December 2020[34] and described the clinical notes as:

"Previous tib/fib fracture in 2017. Metalware in situ. Pain around lateral malleolus over the past two weeks. ? Cause."[35]

8. On 5 January 2021 the plaintiff had a telephone consult with a different doctor at Hastings Family Medical centre (the same clinic as Dr Cooze), being Dr Mahfuz Chowdhury, where the x-ray report was recorded as well as a referral to Frankston Orthopaedics. The doctor's note recorded that a letter was written to Mr Peter McCombe as a specialist referral to Peninsula Health.
9. On 7 January 2021 the plaintiff attended Dr Marice Villasenor. The note of that attendance describes a referral to Frankston Orthopaedics being printed.[36] Also recorded was a history of the netball injury and the plaintiff noticing "increasing pain on the ankle bone". Dr Villasenor recorded advice to the plaintiff to:

wanting to get a moon boot while aw follow up"[37]

1. On 8 January 2021 the plaintiff attended Dr Jenny Zhan (at Dr Walsh-Howe's clinic) for unrelated health issues.[38]
2. Then on 20 January 2021 the plaintiff returned to Dr Villasenor's clinic and was given the results of a left ankle x-ray.[39] At the same clinic she saw a Dr Balasubramaniam Nanthakumar on 25 January 2021[40] but there was no mention of the left ankle in the note of that attendance.
3. Then on 25 January 2021 the plaintiff had a phone attendance with Dr Walsh-Howe, and for the first time since the accident there was a clinical note made linking the left ankle to the accident. That note reads:

"Monday January 25 2021 11:06:51 > > Dr Allara Walsh-Howe

Phone consultation (consent obtained and identity checked):

Having ongoing daily headaches - upcoming neuro appt in Feb

Has been having them ever since MVA in March last year

previously fractured left ankle in 2016 - surgically repaired

X-ray arranged by another doctor found ? pin/screw has shiufted

is putting in TAC claim for this - needs me to fill out form

Will fill out paperwork once have the x-ray results

1. The plaintiff was taken through the clinical notes that I have set out, as well as some others, in the period between the accident and the reporting to Dr Cooze of ankle pain, and then the mention of the accident to Dr Walsh-Howe. About that, the plaintiff at times in her oral evidence gave the impression that she had told doctors about left ankle pain before the attendance on Dr Cooze. She gave answers such as "they were aware of my motor vehicle accident, and it could have been that it's not a regular doctor that I have been seeing",[42] before finally accepting that she had not mentioned left ankle pain to any doctor before Dr Cooze.[43]
2. The defendant then put to the plaintiff that if she really had left ankle pain after the accident she would have mentioned it to a doctor during one of the many attendances she had before 28 December 2020. Specifically about the 28 December 2020 attendance on Dr Cooze, she was asked to comment on the proposition that if she genuinely had left ankle pain from the accident, bad enough to stop her from returning to work, she would have mentioned the accident to the doctor. She said, "I have nothing more to say from what I have already said".[44]
3. The plaintiff's oral evidence of developing ankle pain immediately after the accident, but not mentioning that to doctors, lacked credibility. I consider it more probable that she did not have left ankle pain until several weeks before attending Dr Cooze.

1. Some other examples of the plaintiff's unreliability are next, in the setting of her evidence of using a moon boot for her left leg/ankle injury.
2. In her first affidavit the plaintiff said that perhaps a month or so after the accident, she began wearing a moon boot that she still had from the 2017 surgery.[45]
3. She went on to say that she had a fall in a supermarket on 6 April 2021 and that "the only reason I slipped in the first place, however, is because I was wearing the moonboot and using crutches to take pressure off my left ankle".[46]
4. The plaintiff was cross-examined about the use of a moon boot after the accident. She insisted that she had used the moon boot soon after the accident and explained that she used it when needed "mainly when [she] was going out".[47] But when it was pointed out that she had not worn it to any of the clinical examinations in 2020, she explained that she meant to say she didn't wear it all the time when going out and accepted that she did not wear it to any of the medical examinations.[48]
5. There was considerable cross-examination about the moon boot and how it did not get a mention in the clinical records, or even at the hospital where she went after she slipped and fell at the supermarket on 6 January 2021. She said in her oral evidence that she was wearing a moon boot and using one crutch because of her left ankle when she had the fall at the supermarket,[49] although about that the objective evidence in the hospital discharge summary of 6 January 2021 makes no mention of a moon boot or crutches.[50]
6. I do not propose to spend much more time on this topic because the objective evidence is that on 7 January 2021, the day after the supermarket fall, the plaintiff spoke with Dr Villasenor about wanting a moon boot. It makes no sense that she would ask the doctor for a moon boot if she was already using one or using a crutch. Her evidence that she was wearing a moon boot soon after the accident is evidence that lacked credibility.

1. About that, the plaintiff tendered an affidavit from her mother, Ms Lisa Shaw ("Lisa Shaw") sworn 5 August 2025[51] and urged her evidence be accepted because the defendant did not require her for cross-examination.
2. Lisa Shaw said she remembered the day of the accident well and how she went to the accident scene "to get the kids" before the plaintiff went to hospital. She then said "I clearly recall Karrissah mentioning that she hurt her ankle in the accident".
3. Pausing here, Lisa Shaw may well remember the day of the accident, but she does not say the plaintiff had difficulty walking at the accident scene or complained of left ankle pain at the accident scene. It may be true that the plaintiff mentioned to her mother that she had hurt her left ankle, just as she did to Dr Walsh-Howe in January 2021, but for someone who well remembers the accident, Lisa Shaw's evidence is vague as to when the plaintiff mentioned left ankle pain.
4. Next, about the moon boot, Lisa Shaw said: "I also clearly recall that Karrissah started wearing a moon boot soon after the accident. As it was five years ago now, I cannot be sure of the exact date she started wearing it, but I am sure it was a matter of weeks after the accident rather than a matter of months".[52]
5. While Lisa Shaw may not have been required for cross-examination, the evidence in her affidavit must still be critically assessed by reference to the whole of the evidence and in this proceeding, the unreliability of the plaintiff.
6. Lisa Shaw's evidence that her daughter started wearing a moon boot within a matter of weeks rather than months does not fit with the objective evidence. As Lisa Shaw fairly acknowledged, the passage of five years has dimmed her memory. Curiously, she makes no mention of any specific occasion or event where her daughter had a moon boot. Her evidence about the moon boot is vague and far from compelling.
7. I do not accept that the plaintiff had ankle pain soon after the accident such that she was wearing a moon boot. More likely, it was not until 7 January 2021 that she commenced using a moon boot, after the attendance with Dr Villasenor, from whom there is no report which may well have clarified this issue.

1. The plaintiff's unreliability extended to what she said to medico-legal examiners. It is convenient to deal with the issue of her unreliability to medico-legal examiners, while dealing with the evidence from those experts, before returning to the evidence from Mr Winters, as the key witness relied on by the plaintiff.

1. Returning here to the evidence from Mr Edwards, he provided several reports that overall, I consider contain fair and balanced opinions. His reports are also a stark example of the unreliability of the plaintiff as a historian when it comes to her description of left ankle symptoms after the accident.
2. According to Mr Edwards, for the purpose of his report dated 9 May 2024 the plaintiff told him that after the accident:

"She says she was taken to Frankston Hospital. She says she was investigated for injuries other than her foot and ankle, although when she was discharged 2 days later, she had to have crutches because of problems with the foot and ankle. She says she was reviewed 4 days after this in the Orthopaedics outpatient's where she was investigated with x-rays. She says she was told there was a "bent screw". She says surgery was recommended".[53]

3. As should be clear, the plaintiff was not discharged from hospital on crutches. She was not reviewed 4 days later in the orthopaedics outpatient's. She did not have x-rays at that time. She was not then told she had a bent screw and she was not then recommended to have surgery.
4. The history to Mr Edwards is patently wrong to the extent that the plaintiff explicitly described using crutches or a review 4 days later in the orthopaedics department. It is true that she was investigated with x-rays, but that was not until 29 December 2020, and it was after that there was a discussion about a bent screw and surgery.
5. The plaintiff's history to Mr Edwards is either deliberately false and designed to mislead, or more likely, it is a product of the general unreliability of the plaintiff. I note that in the clinical records it emerges that the plaintiff has had a lot of personal and family issues that I need not describe. As she said in her oral evidence about her work history that "this is where dates and years and things are confusing for me"[54] and she also accepted that she had a lot going on in her personal life at times.[55]
6. This reliability of the plaintiff is important to the opinions expressed by Mr Edwards, as Mr Edwards himself acknowledged in his reports.
7. About the relevance of the history, in his first report when asked for his diagnosis, Mr Edwards said:

"In answer, this lady suffered an ankle fracture in 2017. Based on her anamnesis and the records she entirely recovered from that injury. She was involved in a motor vehicle accident where concerns focused on her on her proximal injuries. She was able to walk after this injury. Based on her anamnesis, she had problems with the ankle shortly after the accident however, despite a number of general practice records, there are limited notes apropos this; general practice notes first record a flare of symptoms stand for 2 weeks of the 28th of December 2020. It is clear that she did have ankle instability and falls. She was subsequently undergone removal of metalware and it would seem ankle surgery, although I have not seen the operative note. She now has persistent soft tissue injuries in the lateral hindfoot. It still gives way but less often than before - now once every 4 weeks. The ankle still feels unstable. There is still increased anterior drawer. There is limited ankle dorsiflexion to only 10 degrees and limited inversion and eversion movement of the hindfoot. I note on x-ray there is a small ossicle on the lateral ankle, but there has been no progression of degenerative change on x-rays taken from the end of December 2020 until x-rays taken in March 2021. There is inexplicable nonanatomic loss of sensation in the leg foot and ankle."[56]

8. In the first report, Mr Edwards was asked a question about the defendant's denial of liability for left ankle surgery. He answered that question as follows:

"In answer, I have not seen this information - it is not provided. Having said that, this lady had reinjured an already ready injured ankle. Whereas the original injury may cause long-term degeneration, a second injury will aggravate any underlying problem and bring symptoms to the fall. Based on this patient's anamnesis, the motor car injury did cause troubles with the hindfoot which is to say the second injury caused significant and persistent troubles for this patient. My concern with that assessment is that there is a record from December 2020 in the general practice notes post-dating the motor vehicle accident by well more than half the year in which it has been recorded that pain had been "inc" for 2 weeks. This could be read that pain was only extant for two weeks and increased or that previous extant pain had worsened for two weeks; if the former, then the transport accident is not likely to be a contributing factor, if the latter interpretation of the general practice note is correct and the patient's anamnesis is correct then the transport accident is likely to be a contributing factor through soft tissue rather than bony injury. Given memory of all people is unreliable I think weight should be given to the written notes - and yet they too are less than certain. It is not unreasonable to state that pain was tolerated but became worse - I cannot be certain as to causation, but I am inclined to believe that the accident did aggravate or cause ankle pathology."[57]

9. Pausing here, Mr Edwards hit the nail on the head about the unreliability of memory. But it is clear that his opinion was predicated on an acceptance that the plaintiff had left ankle pain from the date of the accident that had increased in the two weeks or so before she attended Dr Cooze on 28 December 2020. But as Mr Edwards acknowledged, if there was no pain contemporaneous with the accident and in fact the pain had only been present for about two weeks before the attendance on Dr Cooze, then the transport accident was not likely to be a contributing factor.
10. Mr Edwards provided a further report dated 3 June 2025.[58] For the purpose of that report he had further material provided to him, but most of his opinions were directed to matters other than causation.
11. Mr Edwards then reported again on 30 July 2025,[59] where he was again provided with further material but then was asked to answer a question about whether the accident had been a significant contributing factor or material cause to the plaintiff's left ankle condition. He answered that as follows:

"In answer, your client stated that after ankle surgery in 2017, the ankle was better in three or four months. There is no evidence from the general practice notes, despite a multiplicity of notes, that there was any problem with the ankle. I therefore, do not believe the ankle was giving trouble after she had stabilised from the surgery in 2017. Your client then went on to state that she had problems with the ankle ever since the accident in March 2020. It is reasonable to observe that she had several injuries in this accident, and it could well be that attention was drawn to other injuries rather than the ankle. I should also note she had other medical problems, which is clear from the general practice notes, which perhaps drew attention rather than the ankle. Having said that, it is entirely conceivable that the motor vehicle accident at or about sixty kilometres an hour could have injured her ankle soft tissues even if the patient self extricated. In this setting, I am inclined to believe the patient's anamnesis but cannot be certain. That is to say, I think the motor vehicle accident did aggravate this lady's ankle which had previously been injured but had been asymptomatic. I should point out that there is variance between my physical examination findings and those of Dr Saxby - I found the ankle unstable and the lateral ligaments tender with subtle weakness of motor power which to my mind is consistent with the instability I described. I note that I have not been provided with weight­bearing x-rays nor further investigations such as MRI."[60]

12. Pausing yet again, as will be obvious, Mr Edwards maintained his opinion that the accident was causally related to the plaintiff's left ankle condition, but again he qualified that by saying he was inclined to believe the plaintiff's history to him but he could not be certain.
13. Mr Edwards reported again on 19 August 2025,[61] but that report does not add much to the discussion other than he maintained his opinion that the accident remained a material cause to the plaintiff's left ankle condition.[62]

1. Dr Khayyam Altaf is an occupational physician who examined the plaintiff and provided a report at the request of her lawyers dated 26 May 2025.[63] About the accident and injury, Dr Altaf reported that the plaintiff told him "she is uncertain whether the foot was directly impacted or became trapped during the collision".[64] Dr Altaf went on to say about the issue of the accident and injury to the left ankle that:

"The relationship between the transport accident and the left ankle injury is reported by your client as being due to the foot becoming trapped during the collision. However, she states that she only noticed the pain after a period of time, describing this as a few days or possibly several weeks later. I could not locate any clinical records identifying left ankle issues until several months after the accident. Despite this, her affidavit asserts that she is certain the ankle injury occurred at the time of the transport accident.

These inconsistencies make it challenging to confidently establish a clear causal link between the transport accident and the left ankle injury. Nonetheless, based solely on her affidavit evidence, there would appear to be a direct association between the transport accident and the onset of left ankle instability with presumed ligamentous injury."[65]

1. Dr Altaf correctly identifies the challenge in confidently establishing a link between the accident and the left ankle injury. On a plain reading of his report, he appears to have based his opinion on an acceptance of the plaintiff's affidavit evidence about the onset of symptoms. For reasons already expressed, where the plaintiff's evidence is unreliable, then that unreliability affects the weight to attach to Dr Altaf's opinions.

1. Mr Raf Asaid is an orthopaedic surgeon who examined the plaintiff at the request of her solicitors and provided a report dated 19 July 2023.[66]
2. About the development of left ankle symptoms, Mr Asaid recorded that as a result of the transport accident the plaintiff reported developing pain in her neck, lower back, and left ankle. He recorded that the plaintiff was reviewed by her general practitioner and commenced a period of physiotherapy treatment.[67] He then reported that "Over time, the pain in her neck and lower back eventually resolved, however, she continued to experience left ankle pain."[68]
3. Mr Asaid then went on to express an opinion seemingly based solely on what he had been told by the plaintiff: that as a result of the accident the plaintiff had suffered a lateral ligament injury to her left ankle.[69]
4. For the purpose of his report, Mr Asaid appears to have been provided various radiological investigations, but he does not appear to have had access to any other source documents. His opinion on causation is heavily dependent on a history from the plaintiff that I do not accept as accurate.

1. The only other relevant medico-legal opinion is that from Dr Terence Saxby, orthopaedic surgeon, in reports that he provided at the request of the defendant.
2. Dr Saxby reported for the first time on 16 December 2022.[70] For the purpose of that report he had available various hospital and general practitioner records. In that report he noted the first documented report of an ankle problem was in January 2021, which I note is inaccurate.[71]
3. In any event, he went on to express the following opinion:

"Ms Shaw is a 26-year-old lady who suffered a transport accident on 15 March 2020. She was able to walk following the accident. She was assessed at the Frankston Hospital Emergency Department. No notation of a left foot or ankle injury was noted. She similarly consulted her general practitioner on 18 March 2020 and once again there was no notation of any foot or ankle problem. Indeed, there was no recorded ankle problem until 25 January 2021. She has subsequently been assessed and recommended surgery."[72]

4. Next, in respect to a question about diagnosis, Dr Saxby said:

"It would appear that Ms Shaw has had a previous ankle fracture and has prominence of the plate and also has left ankle instability. There is no evidence of any significant injury associated with the transport accident on 15 March 2020."[73]

5. Dr Saxby was then asked to provide an opinion about the cause of the left ankle injury, and he said:

"There is no evidence that there was any significant injury to the left foot and ankle from the transport accident. This is based on the history of being able to weight bear on the foot after the accident. There is no record in the Frankston Emergency Department or by the GP of any problems with the left foot and ankle at the time of the injury. Therefore, I do not believe there is any left foot or ankle problem related to the injury.

There is certainly prominence of the plate from the internal fixation from the previous surgery and there is evidence of ankle laxity or instability. This I believe relates to non-transport-accident conditions."[74]

1. Dr Saxby reported again on 10 July 2025.[75] In that report he obtained a history that the plaintiff had last worked two days prior to the accident and that she had been working as a personal care assistant in an aged care facility.[76] Obviously that history is incorrect.
2. In his second report, Dr Saxby again commented that the first real mention of any ankle problems after the accident was in January 2021, and he maintained his opinion that the accident was not a cause of injury to the plaintiff's left ankle.
3. Dr Saxby reported again on 6 August 2025,[77] in which he was asked to comment on further material including a report from Mr Edwards. He noted the only real difference on clinical examination between him and Mr Edwards was Mr Edwards had found evidence of ankle instability, where he had not. But he otherwise maintained his opinion.[78]
4. Dr Saxby reported once more, on 19 September 2025,[79] in which he again made some brief comments in respect to differences of opinion between him and Mr Edwards.
5. Leaving to one side the clinical opinion about ankle instability, overall the difference of opinion between Mr Edwards and Dr Saxby boils down to Mr Edwards accepting the plaintiff's history of left ankle symptoms soon after the accident, and Dr Saxby preferring the evidence in clinical records of no real ankle symptoms until January 2021. It is that difference that explains their opinions on causation, bearing in mind that Mr Edwards had appropriately acknowledged the history from the plaintiff as a relevant consideration.

1. That brings me full circle back to the opinions from Mr Keith Winters, described by the plaintiff as the key witness.
2. I understood the plaintiff's submissions about Mr Winters to mean that even if I found her to be an unreliable historian, and that ankle symptoms did not return until some time in late 2020, the evidence from Mr Winters was still sufficient for a conclusion that the accident was a cause of injury to the left ankle.
3. The evidence from Mr Winters commences with a letter that he wrote to a Dr Jacinta Christiansen on 26 March 2021.[80] Mr Winters recorded, under a heading of "Progress", the following:

"Thank you for your referral. Reviewed in the rooms today with 12 month history of issues with the left ankle. Sustained a fracture of the ankle playing netball in 2017 requiring operative fixation in Frankston Public. Made a full recovery. In March 2020 she was involved in a MVA when she hit a car doing a U-turn travelling at 60kph. The foot was jammed against the firewall. Since the accident, she is complaining of instability and pain in the ankle, fibula and Achilles. Swells in the heat. Doing exercises and wearing a boot over the last 6 weeks. Panadeine forte on occasion which takes the edge off."[81]

4. It is unclear exactly what Mr Winters meant by "since the accident [the plaintiff] is complaining of instability and pain in the ankle, fibula and Achilles". If it records the plaintiff telling Mr Winters that from the time of the accident she had pain, then that is a history that I do not accept as accurate. I do note Mr Winters recorded a history of the plaintiff wearing a moon boot over the last six weeks, which supports my earlier conclusion that she had not been using a moon boot from soon after the accident. In any event, Mr Winters arranged further investigations and booked the plaintiff in for surgery to remove metalware, and ankle arthroscopy and stabilisation. He noted he would write to the TAC before proceeding.
5. In fact, on the same day he wrote to the TAC. He said:

"I am writing to determine if you will accept financial liability for the ongoing management of Karrissah's left ankle injury. As you are aware, she was involved in a motor vehicle accident in March 2020 where her foot was jammed up against the firewall. She has been complaining of pain and instability in the ankle since then. The pain is deep within the ankle but also over the lateral side where the plate is and the ankle has rolled on several occasions. She has failed nonoperative measures and presented to me today in a boot. On examination she has pain deep in the ankle and instability of the ankle joint with prominent metalware and a painful bulge, which may represent nerve injury or a muscle herniation over the lateral incision line."[82]

6. Next, Mr Winters again wrote to the TAC on 8 April 2021,[83] to effectively confirm that the fall in the supermarket was not a relevant consideration for the proposed surgery.
7. Next, Mr Winters provided a report to the plaintiff's solicitors dated 9 April 2024.[84]
8. In his report he was asked questions about his consultations with the plaintiff, and replied as follows:

"1. The date of your initial relevant consultation

I first saw Karrissah in my rooms on the 26th March 2021. This was approximately 12 months following an injury to her left ankle, which she sustained in a motor vehicle accident on 15th March 2020. She was booked for surgery at that stage in Peninsula private hospital on 22nd April 2021 but TAC did not approve the surgery.

No further consultations have occurred."[85]

1. Pausing here, if Mr Winters did not consult with the plaintiff other than the one occasion on 26 March 2021, then that confirms my earlier expressed suspicion that Mr Winters did not operate on the plaintiff after the netball injury.
2. In any event, about the history obtained from the plaintiff, Mr Winters said:

"Karrissah was invoilved in motor vehicle accident when she was hit but a car doing a u-turn travel at 60kms per hour. He foot was jammed against the firewall and twisted the ankle. Sicne then she was comlaining about ongoing pain, swelling and instability in the ankle. She was using a boot off and on at that point and was taking occasional panadine forte for the pain. She also mentioned a previous fibula fracture sustained in 2017 while playing netball with required operative fixation in Frankston Public. She did however make a full recovery from this and had no issues with either pain, swelling and more importantly instability. It was apparant to me at that stage that the instability and ongoing issues was as a result of a motor vehicle accident, as I believe she made a complete and full recovery from the previous fracture."[86] [sic]

3. Obviously, Mr Winters proceeded on the basis that the plaintiff's left foot had been jammed and twisted in the accident, and since then she had been complaining about ongoing pain, swelling and instability in the ankle. As already noted, I do not accept that as an accurate history.
4. About treatment, he went on to say:

"She was using a boot intermittandly when necessary and prior to presentation she had been wearing it for the preceeding 6 weeks. She was taking panadine forte on occasion. HSe had some session of physio. I do not have any further information since that last review."[87] [sic]

5. Mr Winters went on to say that he had recommended an ankle arthroscopy to assess the ankle joint and determine if there was any osteochondral injury or scarring within the ankle. He also said the plaintiff would need a ligament reconstruction of both the ATFL and CFL ligaments, and that to perform that he would need to remove the lateral plate.
6. That is really the extent of any relevant evidence in Mr Winters' report. Notwithstanding the date of the report, which post-dates the 9 November 2023 surgery, as referred to in the report from Peninsula Health[88] report as "(Winters / McDonald)", Mr Winters himself does not refer to that surgery in his report. That raises a couple of possibilities. One is that he had in fact written the report before the surgery but did not finalise it until later, or it may be that he did not perform the surgery.
7. Mr Winters was said to be a key witness and the man on the spot.[89] The plaintiff submitted that his evidence should be preferred to other medical experts, because he was the man who had seen her before 2017, after the surgery in 2017, and then again after the accident. The plaintiff submitted his evidence should be preferred because he was not a once-off examination "from which a plethora of conclusions are later drawn as in a medico-legal situation. He's got ongoing involvement at significant points in the progress of [her] condition.[90]
8. But a closer examination of the evidence in this proceeding casts doubt that Mr Winters was the man on the spot or is uniquely in a better position that other medical witnesses. It is unclear if he saw her at the time of the netball injury or performed the surgery at that time. Obviously, he saw her on 26 March 2021 but he was then provided with an inaccurate history as to the onset of left ankle symptoms after the accident. As to what he says on the issue of causation with the benefit of the 9 November 2023 surgery is impossible to say, because Mr Winters' report is silent about any operation findings, perhaps because he did not operate, or see the plaintiff post operatively.
9. If Mr Winters was the key to the causation lock created by the unreliable evidence of the plaintiff, then on my assessment of his evidence it is not a key that loosens the lock the plaintiff herself had closed by consistently giving unreliable evidence.

1. First and foremost, the plaintiff was an unreliable historian.
2. Second, I do not accept that she had left ankle pain immediately after the accident.
3. Third, objectively, the plaintiff insidiously developed left ankle pain in December 2020, in the setting of a previous ankle fracture and surgery in 2017 after the netball injury.
4. Fourth, the plaintiff bears the overall evidentiary onus to establish that she suffered a left ankle injury of some type in the accident. Where she bears the onus, there is an absence of useful medical opinion from treating practitioners.
5. There is no report or useful evidence about the cause of left ankle symptoms from any relevant treating general practitioner or physiotherapist.
6. Fifth, the high-water mark of any treating medical opinion is from Mr Winters.
7. I have already discussed Mr Winters' evidence at length, because the plaintiff relied heavily on him to overcome her unreliability.
8. Mr Winters' evidence is contained in the three letters and the one report that I have referred to. There is nothing anywhere in the evidence from Mr Winters that confirms he did see the plaintiff after the netball injury and performed surgery. In fact, a closer look at the objective evidence tends to the conclusion that he did not.
9. Mr Winters obviously saw the plaintiff, in his words, on one occasion, on 26 March 2021. It is unclear how the information about the subsequent fall in the supermarket was relayed to him as he recorded it in his short letter of 8 April 2021.[91] Perhaps more importantly, it is entirely unclear whether he was aware of the results from the subsequent surgery of 9 November 2023, or whether he had any involvement with that procedure.
10. Doing the best I can to piece together the evidence from Mr Winters, I suspect the plaintiff may have been referred to him after the netball injury. Perhaps she saw him at that time, although the evidence from Mr Winters suggests she did not. More likely the plaintiff instead ended up being treated as a public patient at the Frankston Hospital and did not actually see him at that time. Regardless, on balance it seems the evidence in her first affidavit that Mr Winters performed the surgery for the netball injury is wrong and yet another example of her unreliability. Then, in the context of a TAC claim arising out of the accident, she did manage to see Mr Winters on 26 March 2021, but when the TAC denied funding for surgery, it appears that she went again through the public system and his ongoing involvement is unclear.
11. Where Mr Winters was relied on as the key, it would have been easy for the plaintiff to seek clarification from him about these issues, but that was not the way his evidence was presented.
12. Sixth, the evidence from Mr Edwards fairly acknowledged that his supportive opinion was predicated on an acceptance of what the plaintiff had told him about the development of left ankle pain after the accident. Mr Edwards was prepared to give her the benefit of the doubt but acknowledged that if the left ankle symptoms only returned in December 2020, then it would be hard to implicate the accident.
13. Dr Saxby, did not give the plaintiff the benefit of the doubt and did not link the accident in any way to the subsequent symptoms in the left ankle.
14. The Court now has the benefit of all the evidence the parties relied on and the oral evidence of the plaintiff. A consideration of the evidence supports a conclusion that the opinion of Dr Saxby is correct, and for that matter so is Mr Edwards to the extent that he expressed opinions about causation if the plaintiff's subjective history of symptoms to him was disregarded.
15. Therefore, Mr Winters is not the antidote to the plaintiff's unreliability as she would have had the Court accept.
16. A consideration of the whole of the evidence supports a conclusion that the accident did not cause the plaintiff to suffer an injury to the left ankle, or even the aggravation of the netball injury. The return of symptoms, the need for surgery and the ongoing impairment is not causally related to the accident.

1. For the reasons expressed, the plaintiff's application is dismissed.
2. The parties are asked to provide a short minute of any orders, including orders for costs, to give effect to these reasons, within 7 days.

[67] There is no evidence from a treating physiotherapist