Yarzabal v Victorian WorkCover Authority [2026] VCC 3

1. The legal issues are well known and not in dispute in relation to paragraph (c) cases - the test that a psychiatric injury be "severe" is more stringent than the requirement that a physical impairment or loss of body function be "serious".
   1. Mental disorders will vary in their nature and consequences. There are many ways in which the question of severity might be approached, each of them being incomplete in itself.[1]
   2. There is not always a "bright line" between injury, consequences and symptoms, and what might be characterised as a symptom may, at the same time, be relevant as a consequence.[2]
   3. A psychiatric disorder may have severe consequences, even though a sufferer has had limited treatment, just as extensive treatment will not necessarily point in the direction of a disorder being severe.
   4. A diagnosis of a particular condition does not result in a conclusion that the condition is permanent or that its consequences are severe.
   5. In determining whether Ms Yarzabal's work-related psychiatric injury is "severe", I must:
      • determine whether Ms Yarzabal has suffered "a mental or behavioural disturbance or disorder";
      • determine whether the psychiatric condition is permanent by considering how long the injury has persisted and will persist, though it need not be for a specific number of years;[3]
      • make findings of fact about the nature and symptoms of Ms Yarzabal's psychiatric condition and the consequences of that condition; and
      • consider all factors going to the severity of Ms Yarzabal's psychiatric condition in applying the two-stage narrative test.
   6. Further, for Ms Yarzabal to succeed in her claim for loss of earning capacity, she must establish:
      • her loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than serious to the extent of being severe (s325(2)(d): "the narrative test");
      • she has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act (the current "loss of earning capacity" threshold); and
      • after the date of the hearing, she will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more as set out in s325(2)(e)(ii) of the Act ("the permanent loss of earning capacity" threshold").
   7. If the requirements of s325(2) of the Act are met with respect to loss of earning capacity consequences, Ms Yarzabal would also be entitled to bring a claim for pain and suffering damages.
   8. For that reason, I will consider whether the loss of earning capacity consequences are "severe" before considering the pain and suffering consequences.

1. I have considered all the tendered evidence, the oral evidence of Ms Yarzabal and the submissions of Counsel, but I shall only refer to the materials to the extent necessary in these reasons.
2. For the reasons that follow, I find that in relation to the pecuniary loss claim, the impairment consequences are not "severe" and do not satisfy the narrative test and the tests in s325(2)(e)(i) and (ii) of the Act.
3. I find that Ms Yarzabal has satisfied her onus of establishing that the permanent impairment consequences of her work-related psychiatric injury can be fairly described as "severe". She has met the pain and suffering test.

1. Ms Yarzabal relied upon two affidavits affirmed on 18 October 2024 and 8 September 2025,[4] as well as an affidavit of her husband, Mr Breckon, affirmed on 17 September 2025.
2. She tendered medical reports from various treaters, including Dr Goureeve (General Practitioner, "GP"), Dr Siddiqui (GP), Dr Hall (psychologist) and Dr Lee (psychiatrist), as well as reports from independent medical examiners, Dr Gallogly (psychiatrist), Dr Schutz (psychiatrist) and Dr Awad (occupational health specialist). She relied upon a vocational assessment report of Ms George (occupational therapist) and some taxation material.
3. The VWA tendered surveillance footage taken on 30 November 2024 and 8 December 2024, reports from independent medical examiners, Dr Handrinos (psychiatrist) and Dr Grant (psychiatrist), and various Nabenet suitable employment reports.
4. Ms Yarzabal was the only witness called.

1. Ms Yarzabal lives with her husband, Mr Breckon, a former police officer, and her child from a previous relationship. Mr Breckon has three children from a previous marriage - some of these children live part time with Mr Breckon and Ms Yarzabal.
2. Ms Yarzabal was born in Australia but spent most of her childhood in Uruguay where she completed schooling to Year 11. She returned to Australia in 2003 when she was about 20 years old.
3. For the next ten years she worked in various jobs including as a hairdresser, in a real estate company and in a clothing factory.
4. In 2013, when aged thirty, she joined Victoria Police. After she graduated from the Victoria Police Academy, she worked at a number of police stations.[5]
5. In 2018, she was assigned to the Carrum Downs police station as a Senior Constable.
6. At the time she commenced at the Carrum Downs police station, she was five months' pregnant. She commenced a relationship with her husband in September 2018. She commenced parental leave on 8 October 2018, shortly before her child was born. She remained on parental leave until 25 August 2019.
7. In March 2021, she lodged a WorkCover claim in which she alleged that between 2018 and 2021 she was bullied by two senior police officers at the Carrum Downs police station. She ceased work in March 2021.
8. In November 2022, she attempted to return to work in the Carrum Downs police station watchhouse but could not cope and ceased after two weeks.
9. She has not returned to work with Victoria Police since late 2022. Her employment was terminated in July 2023 on mental health grounds. She remains in receipt of an Emergency Services and State Super (ESSS) pension.
10. In November 2023, Ms Yarzabal began operating a small shop in Mt Eliza, selling plants and terrariums.

1. Ms Yarzabal remains under the care of
   • Dr Siddiqui (GP)
   • Dr Hall (psychologist); and
   • Dr Lee (psychiatrist).
2. Ms Yarzabal was prescribed medication including Sertraline and Lexapro for depression, Ativan for anxiety and Imovane and Dayvigo for sleep. Ms Yarzabal ceased taking Sertraline due to weight gain and commenced on Mounjaro for weight-loss.
3. At the time of the hearing, Ms Yarzabal said she was:
   • taking one tablet of Lexapro daily and half a tablet of Imovane on most nights, which she increased to one tablet about once a week;
   • attending Dr Siddiqui occasionally;
   • attending Dr Hall once every three weeks[6];
   • attending Dr Lee every few months.

1. Ms Yarzabal had a difficult childhood. Her parents split up when she was a baby. Ms Yarzabal and her mother then moved to Uruguay. Her mother struggled with alcoholism and poor mental health and had abusive partners. Ms Yarzabal's relationship with her parents has been dysfunctional.
2. In the mid 2000s, Ms Yarzabal underwent psychological counselling for anxiety following a car accident.
3. There is no evidence to suggest Ms Yarzabal was psychiatrically unwell when she commenced employment with Victoria Police.
4. It was not suggested that Ms Yarzabal had suffered an aggravation of a pre-existing psychiatric condition.

1. A summary of Ms Yarzabal's Affidavit material is as follows:

1. She felt depressed, numb, teary, angry, did not enjoy the things she used to and also experienced low mood, lack of motivation, exhaustion and poor memory and concentration. She said she often had intrusive thoughts, was on edge and worried about things.

1. She used to keep physically fit by running and going to the gym but she no longer went to the gym and had gained about 21 kilograms due to inactivity and the side effects of her medications.

1. She enjoyed overseas travel and organised trips before the injury but she no longer travelled like she used to.

1. She was anxious, socially withdrawn and avoided interacting with people. She did not like going out and avoided the Carrum Downs police station and any places that reminded her of work. She was previously very social and outgoing and had lost a lot of friends, many of whom were police officers, as she struggled to socialise with them now. A big part of her life used to involve going out to brunch, dinner and drinks. She often hosted dinner parties.
2. She now socialised infrequently and most of her social interactions outside the house involved taking her child to playdates.

1. She went to bed early most nights but would wake up at 3.00am or 4.00am and could not get back to sleep, leaving her tired and irritable the next day. Her sleep was better if she took a full tablet of Imovane which she did approximately once a week but she avoided doing so more frequently due to concerns around addiction.

1. Her psychiatric injury had placed significant strain on her relationship with her husband, causing them to split up for a period in early 2022 before they reconciled. Her husband did most of the cooking and cleaning around the house. Her libido was affected by her medication. Despite this, her relationship with her husband had improved.
2. She was snappy with her child and felt guilty that she was not more patient.

1. She was devastated to have lost her career with Victoria Police. Being a police officer was a big part of her identity. She had planned to work as a police officer for the rest of her working life. She took pride in her job and was motivated to work her way up through the ranks and be promoted. No longer being able to work as a police officer was a big blow for her.

1. Ms Yarzabal commenced, but did not complete, a Certificate IV in school-based education support in 2023 which would have qualified her to work as a teacher's aide. She ceased the course after four to five weeks, as she felt anxious talking to people.
2. In November 2023, she commenced running a small business in Mt Eliza selling terrariums made by her, as well as products made by other people who rented a shelf/space in the shop. The shop was quiet and was operating at a loss.
3. Most of her workdays were spent keeping the store tidy and helping customers. She said, despite her light workload, she struggled with memory and concentration and relied upon Post-it notes and alarms to remind her to do things. Inventory was mostly managed by the other businesses that rented out space in the store.
4. Her mother-in-law assisted in the shop on a voluntary basis. Ms Yarzabal said:

"While I am able to work most days between Monday and Friday, my mother-in-law has to frequently step in and help out. I call her to help when my mood is particularly low or when I have had very poor sleep and do not think it would be safe for me to drive. On average this would happen at least three to four times a month, although it depends on how I am coping day to day."[7] > > "I am managing to work [...] because I have my mother in law's help, and I am my own boss. There is no pressure to do things fast or efficiently and I work only when my mental health allows. I think this is why the business is not profitable. I do not believe I could adequately perform a similar customer service roll [sic] working for someone else."[8]

1. When employed by Victoria Police, Ms Yarzabal worked 70 hours per fortnight, on Tuesdays, Wednesdays and Thursdays, and every second Sunday. She earned $1,730 gross per week, plus superannuation.
2. At the time of the hearing, Ms Yarzabal was earning $19,890 per annum - part of which came from her ESSS pension and an investment property.[9]

Key issues raised during cross-examination and re-examination

1. During her evidence, Ms Yarzabal said:
   • she no longer socialised with her former colleagues from the police force, except for a few friends, and she avoided police officers generally when out in public;
   • being around middle-aged men could bring back memories of what happened at work;
   • she rejected the suggestion that she avoided going out simply because there might be middle-aged men around but accepted there would need to be a particular or special occasion, such as a birthday dinner, to get her out of the house;
   • she had taken her child to Disney on Ice;
   • she had attempted to re-train as an integration aide but was snappy with her own child and could not imagine looking after twenty other children. She also said that during the course she was not participating as she was too anxious;
   • prior to setting up her business, she was not getting out of bed until late and was moping around the house due to a lack of motivation;
   • she set up her business because she was making a lot of terrariums at home and her psychiatrist suggested that she try and sell them;
   • her psychiatrist was supportive of her returning to the workforce and engaging with members of the public on a full-time basis and did not warn her against doing so. She said her psychiatrist thought the shop would give her purpose;
   • she accepted that due to her stress and anxiety around dealing with members of the public, opening a shop was not a decision she took lightly. Despite this evidence, she maintained she did not do any business planning and that it was a "spur of the moment"[10] decision;
   • it did not cross her mind to choose a role where her exposure to the general public would be more restricted, such as aged care homes or childcare;
   • her mother-in-law assisted her with the business, including opening and running the shop on Saturdays;
   • she was often anxious when making conversation with customers at work and would put her laptop up on her desk in front of her so she could avoid eye contact and conversation;
   • when a customer attended the shop, she could serve them as needed, including taking them through their terrarium options, pricing and then trying to effect a sale. She also sold other people's items on a commission basis, including candles and notebooks;
   • selling other people's items added an added layer of complexity to her store. She had to ensure accurate record keeping. She maintained most of the record keeping was automated with the use of software;
   • she was responsible for the shop's social media presence and had posted hundreds of posts including promotional videos;
   • the business was running at a loss and she intended to shut the shop in April 2026 when the lease expired but would keep running the online side of her business;
   • if she could find a product that was more profitable and attracted more customers, there was no reason why she could not continue to operate the shop;
   • she had a caravan in Venus Bay where she spent weekends with her family;
   • she travelled to Bali in November 2024 for a week with her family and was planning to travel to Thailand in July 2026 with her family for a week;
   • she had been on an eight-day cruise in August 2025 which left from Sydney and travelled to New Caledonia, stopping at three ports on the way. It was a large ship which had many passengers - possibly in the thousands;
   • her travel was curtailed by her financial situation and there was nothing about her psychiatric condition which had stopped her from travelling frequently with her family.

1. The VWA tendered a total of 17 minutes of surveillance footage taken on 30 November 2024 and 8 December 2024.[11]
2. The VWA admitted that 46 hours of surveillance had been taken over eight days between November 2024 and April 2025.
3. Footage on 30 November 2024 was taken during the period 12.20pm to 5.57pm. The footage lasted 2.5 minutes. It showed Ms Yarzabal leaving home and driving for 42 minutes to a residential house. During her evidence, Ms Yarzabal confirmed she attended a baby shower at a friend's house. She had met her friend at the police academy. Ms Yarzabal said she was the baby's godmother.
4. A number of uniformed police officers were seen arriving at the baby shower. Ms Yarzabal said there were approximately ten guests at the baby shower, including four to five police officers.
5. Ms Yarzabal remained at the baby shower for over five hours. When she left, she was seen smiling and sharing a joke with her friend. She displayed no signs of distress or anxiety.
6. Footage taken on 8 December 2024 was shown. It covered the period 11.51am to 2.43pm. The footage lasted 14.5 minutes. It showed Ms Yarzabal and her family travelling via train to the Melbourne Central Business District ("CBD"). Ms Yarzabal and her family then walked from Flinders Street station to the Myer Christmas windows and then walked to Young & Jackson Hotel at the intersection of Flinders Street and Swanston Street. Ms Yarzabal said it was her husband's birthday and that after seeing the Christmas windows, they had lunch at Young & Jacksons. She said the family had elected to use public transport, as parking in the CBD would have been quite expensive. The footage showed her playing and joking with her husband, knocking his cap off his head.
7. Police were present in each piece of footage. First, in dealing with what appeared to be a pro-Palestinian protest on Swanston Street which Ms Yarzabal walked past on her way to the Myer windows and second, when four or five Public Order Response vans with lights flashing quickly were seen turning left from the intersection of Flinders Street and Swanston Street near where Ms Yarzabal was having lunch at Young & Jackson.
8. It is not clear from the footage whether Ms Yarzabal actually saw the police on these occasions.
9. Ms Yarzabal appeared relaxed in the footage. There were no outward signs of distress or anxiety.
10. It was put to Ms Yarzabal that it was a falsehood to suggest she was triggered by the presence of police officers given the footage displayed. Ms Yarzabal did not answer the question and said she was confused. The question was re-put and Ms Yarzabal did not answer it, instead saying she was being triggered and could not pay attention to what was being said. When the question was asked a third time, she accepted that it was a falsehood to say she was triggered by the presence of police officers.
11. It was also put that to her that it was a nonsense to suggest she was triggered by the presence of middle-aged men, given the footage showed a good number of middle-aged men in the CBD that day, to which Ms Yarzabal responded: "Um, yes, I think."[12]
12. During re-examination, Ms Yarzabal said she was upset when she gave the above evidence and that her responses were the first thing that came out because she just wanted Senior Counsel for the VWA to "shut up" and she was not thinking clearly.

1. Ms Yarzabal's reliability is very important to the determination of this application. There was a sustained attack on her reliability.
2. It became apparent during cross-examination and in submissions that when using the term "credit and reliability", the VWA was really referring to reliability.

1. As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[13]

"... the weight to be attached to the plaintiff's account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility."

2. I am mindful that surveillance is only a snapshot of activities. It is important to remember that in this type of case, a plaintiff's credibility is relevant not only to whether their evidence should be accepted, but also to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[14]
3. Accordingly, in this case, medico-legal opinions which appear to be supportive of Ms Yarzabal's application must be looked at in the light of my views as to her reliability.
4. The surveillance revealed an apparently happy woman going about daily activities without restriction. It showed that Ms Yarzabal is prepared to use public transport, go to areas such the Melbourne CBD during the busy Christmas period and deal with large crowds of people on the train, in the CBD streets and at the Myer windows without any apparent qualms.
5. The surveillance revealed a person who was willing to go out to crowded areas without knowing whether there may be middle-aged men in the crowd or whether there would be a police presence.
6. I had the opportunity to carefully view Ms Yarzabal when she was giving evidence. She did so in a forthright manner. Whilst she became upset with the cross-examiner, it was in the context of her being challenged regarding her evidence. I find she understood the importance of the questions she was being asked and was able to respond.
7. There is a contrast between what was revealed in the surveillance and Ms Yarzabal's description of her restrictions.
8. I bear in mind that the surveillance footage was only taken on two days. I find that the surveillance has impugned Ms Yarzabal's reliability and, to a certain extent, the reliability of the medical opinions, insofar as they are based on her subjective self-reporting.
9. Consequently, I have considered Ms Yarzabal's evidence as to the ongoing consequences of her work-related injuries with caution, and I will only accept the claimed consequences if there is other objective evidence to support them.

1. Mr Breckon was not working at the time of affirming his Affidavit. He retired from Victoria Police on the grounds of ill health in early 2025.
2. He met Ms Yarzabal at work in 2018 and they began dating. Ms Yarzabal was pregnant when they first met. She was social, outgoing and happy and regularly socialised with her friends, a lot of whom were police officers. Ms Yarzabal was enthusiastic about her job as a police officer.
3. When they first met, Ms Yarzabal was very clean and tidy and would take care of all the household chores such as cooking, cleaning and grocery shopping. Now, he said he did a lot of the cleaning and cooking.
4. Since finishing with Victoria Police, she was a totally different person. Her friendship group was much smaller. She did not see her friends often anymore. She was snappy, grumpy, defensive and argumentative. They fought a lot which had placed strain on their relationship. He said she would often snap at her child.
5. Ms Yarzabal used to be a very organised person but was now forgetful and had to use Post-it notes, a calendar and organisational apps on her phone to remind her of appointments and help her complete tasks.
6. He observed that she could become very angry with people in public, such as when drivers cut in front of her. He recalled seeing her yelling at other drivers and that she responded worse to men than women in such situations.
7. He said a few nights a week he would wake up in the middle of the night to find her wide awake and she would tell him she struggled to sleep every night. He said their sex life had been impacted and they were now only intimate once a year or so.

1. The VWA submitted that the Court should draw an adverse inference as there was no affidavit material from Ms Yarzabal's mother-in-law.
2. I am prepared to draw an inference in circumstances where there has been no explanation provided for the absence of this material.
3. I do place some weight on Mr Breckon's Affidavit, insofar as it supports Ms Yarzabal. This weight is tempered by my findings on Ms Yarzabal's reliability.

1. Ms Yarzabal tendered a report from Dr Goureeve dated 28 May 2023.[15] Dr Goureeve diagnosed an Adjustment Disorder with moderate to severe symptoms of anxiety and depression. She recorded a variety of symptoms including volatile mood, teariness, feelings of extreme anger, rumination, insomnia and impaired concentration and memory, as well as social withdrawal, reduced capacity for physical exercise and relationship problems.
2. Dr Goureeve said Ms Yarzabal was unable to return to the police force because her capacity to make quick decisions and perform at a high level of cognitive and physical functioning had been impaired. Dr Goureeve did not explain what she meant by impaired physical functioning.
3. It was Dr Goureeve's opinion that a return to alternative employment approximately three months after her report was achievable and unlikely to cause issues to Ms Yarzabal's mental state.
4. Dr Goureeve said that the following jobs (which had been identified in a vocational assessment report) were all suitable:
   • facilities coordinator
   • manager (general)
   • sales manager; and
   • training assessor.
5. Dr Goureeve considered Ms Yarzabal's psychiatric state would not preclude work as personal trainer but suggested that an assessment of Ms Yarzabal's strength and fitness was required.

1. Dr Siddiqui is Ms Yarzabal's current treating GP. In a brief letter dated 8 May 2025,[16] he diagnosed an Adjustment Disorder, anxiety/depression, stress and mental health deterioration which he said was as a result of the workplace bullying. It was his view that Ms Yarzabal had no capacity for work "as she is still recovering mentally from the trauma with PTSD".[17]
2. Dr Siddiqui said it was difficult to predict a timeframe by which Ms Yarzabal could return to work. Her prognosis was unclear.

1. Dr Hall is Ms Yarzabal's treating psychologist. Ms Yarzabal first attended Dr Hall on 8 April 2021. Ms Yarzabal tendered a number of reports and letters prepared by Dr Hall.[18]
2. Dr Hall consistently provided a diagnosis of Adjustment Disorder with Mixed Anxiety, depression and stress as a result of the workplace bullying. Ms Yarzabal complained of irritability, social withdrawal, low motivation, and sleep issues.
3. Dr Hall was initially supportive of Ms Yarzabal commencing a graduated return to Victoria Police with appropriate restrictions, including no interaction with the officers involved in the bullying.
4. In July 2021, Dr Hall said that Ms Yarzabal could return to work at the Carrum Downs police station, starting with reduced hours, undertaking front desk duties initially.
5. In a handwritten report dated 28 February 2023, Dr Hall stated (in capital letters - apparently for emphasis):

"CLIENT HAS UNSUCCESSFULLY ATTEMPTED TO UNDERTAKE A GRADUATED RETURN TO WORK PROGRAM. CLIENT FELT STRESSED ABOUT ATTENDING WORK, WAS UNABLE TO CONCENTRATE, BECAME TEARFUL + FELT TIRED DUE TO POOR SLEEP QUALITY. LACKED SUPPORT FROM MGT. DAILY LIVING - VOLATILE MOOD, SOCIAL ISOLATION, EASILY TRIGGERED, LOSS OF CONFIDENCE, POOR SLEEP QUALITY. > > ... > > CURRENTLY NOT FIT FOR NORMAL OR MODIFIED DUTIES AS ADVISED BY PMO DR. S. TEH."[19]

1. By 2023, after being informed that Ms Yarzabal had unsuccessfully attempted to return to work, Dr Hall opined that she was unfit for any form of employment.
2. In her most recent report (23 June 2025), Dr Hall said that Ms Yarzabal continued to attend her for Telehealth counselling sessions approximately every four weeks. Dr Hall said there had been some improvement in symptoms but Ms Yarzabal continued to suffer from moderate depression, moderate stress and mild anxiety.
3. Dr Hall said it was unclear whether Ms Yarzabal's disability would remain permanent but noted, given the longevity of the symptoms, it was doubtful Ms Yarzabal would ever return to full functioning and would require ongoing psychological support.

1. Dr Lee is Ms Yarzabal's treating psychiatrist. Ms Yarzabal tendered a letter dated 20 October 2023[20] which related to a single attendance upon Dr Lee on 28 August 2023 and a subsequent phone call from Ms Yarzabal, which was not a formal Telehealth consultation, on 5 October 2023.
2. Dr Lee said her diagnosis was Major Depression with significant anxiety due to the workplace bullying. In the letter, Dr Lee made various recommendations regarding Ms Yarzabal's medication. She made no comments about capacity.
3. No further material was tendered from Dr Lee.

1. Dr Gallogly examined Ms Yarzabal twice via Telehealth and prepared two reports, dated 28 February 2023 and 7 May 2024.[21] His reports were commissioned for the purposes of determining Ms Yarzabal's entitlements under the Emergency Services Superannuation Act 1986.
2. In February 2023, Ms Yarzabal said she spent her days either looking after her child or dropping the child off at childcare, and otherwise lounged around the house. She complained of low energy, libido and enjoyment of life, as well as stress, depression, anxiety and difficulty sleeping.
3. Dr Gallogly reported Ms Yarzabal was clearly emotionally distressed and tearful when recounting events. Her mood was depressed, with no reactivity and little spontaneity.
4. In his first report, Dr Gallogly diagnosed an Adjustment Disorder with features of depression and anxiety (severe). He hoped that with the passage of time, she would substantially recover and return to her pre-injury level of functioning. At that time, he considered that Ms Yarzabal could not return to police work and was unfit for any form of employment or retraining. He said Ms Yarzabal was motivated to return to work. He considered that she may reach capacity for full-time employment in the next two years, dependant on resolution of "current circumstances" and any decision made by the Police Medical Officer.
5. At the time of the second examination, Ms Yarzabal reported she had put all her money into a plant business which was not going well, causing financial difficulty. She reported anxiety around making conversation with customers.
6. Ms Yarzabal said she was "slightly improved" since the earlier examination and that her depression was a bit better. She complained of ongoing numbness with limited emotions, difficulty sleeping, poor focus and concentration, weight gain and irritability. In terms of a social life, she reported "I don't really have one".
7. Dr Gallogly conducted a mental status examination ("MSE") and considered that Ms Yarzabal was mildly depressed, her emotional state was restricted to the depressed range with little spontaneity, and emotional reactivity was reflected in tearfulness and anxiety. He found she was anxious and stressed about her business but there were no gross cognitive deficits and her attention and concentration were maintained throughout the interview. He also opined she was oriented to time, place and person and that her registration and recall were intact.
8. He said Ms Yarzabal looked anxious and stressed and was a little teary at times. Dr Gallogly confirmed his earlier diagnosis of a Chronic Adjustment Disorder.
9. Ms Yarzabal told him that Dr Lee wanted to admit her to a local mental health facility in Mt Eliza for medication changes.[22]
10. Dr Gallogly ultimately considered Ms Yarzabal could not work full-time hours on a consistent or reliable basis, as Ms Yarzabal told him that she could not manage the store without the support of her mother-in-law and was not consistently maintaining full-time hours.
11. Dr Gallogly said she was unable to undertake retraining on a full-time basis and it was unlikely that she would regain capacity for full-time work in the foreseeable future.

1. Dr Schutz examined Ms Yarzabal via Telehealth and prepared a report dated 20 August 2025.[23] Ms Yarzabal reported low mood, tearfulness, irritability, poor sleep, low energy, low libido and poor concentration and memory, some traumatisation and anxiety features, including flashbacks, avoidance of police and a tendency to worry and catastrophise. She said she had gained 20 kilograms due to comfort eating and was taking Mounjaro for weightloss.
2. Ms Yarzabal reported her mood and anxiety had improved at least 30 per cent from when they were at their worst. She said she still did not have a lot of emotions.
3. Ms Yarzabal reported a very good relationship with her husband who was supportive and did most of the chores at home. She said she enjoyed parenting her child and did a lot with her child, including taking her child somewhere every second weekend.
4. She reported she used to attend the gym and go on holidays but avoided this now, partly due to financial limitations. She avoided socialising due to her loss of confidence and because most of her friends were in the police force. She said she had two friends whom she saw occasionally.
5. Dr Schutz was told that Ms Yarzabal avoided police officers.
6. Dr Schutz was told that Ms Yarzabal was taking Lexapro, 10 milligrams daily, and was on Zopiclone[24] for sleep. He was told that "at the start" it had been suggested that she trial medication in a hospital setting.
7. On MSE, Ms Yarzabal was noted to be neatly groomed, with a mildly restricted affect. There was a noticeable degree of underlying fragility. Her speech was normal, cognition intact, and there was no thought disorder, manic or psychotic signs or symptoms. She appeared to have a reasonable degree of insight and judgement.[25]
8. Dr Schutz diagnosed Ms Yarzabal with a moderate Adjustment Disorder with Anxious and Depressed Mood and features of traumatisation, caused by the workplace bullying. He opined her condition fluctuated and may, at times, meet the criteria for MDD and a Generalised Anxiety Disorder. He considered her symptoms had improved over time but were not in remission.
9. Dr Schutz considered she was unable to return to the police force and would be unable to cope with any equivalent role due to interpersonal and stress-tolerance demands.
10. Ms Yarzabal confirmed she was running a plant and gift shop. She said she worked Monday to Friday 9.30am to 5.00pm. She said she took the occasional day off. She worked alone but received a lot of help from her mother-in-law, who ran the store on Saturdays. The store was closed on Sundays.
11. She said the store was very quiet and she spent her days making social media posts. She said she could talk to customers if she had to but was triggered by older arrogant men. The shop had given her a sense of purpose but she planned to close it down in April 2026 when the lease ended as it was not financially viable.
12. In terms of alternative employment, she said she did not want to work for an employer as she could not concentrate, deal with authority or work with others.
13. Dr Schutz considered that Ms Yarzabal was fit to continue working in the shop and strongly recommended she do so.
14. Dr Schutz was less confident Ms Yarzabal could work for an employer, given her distrust and sensitivity. He said she would require a very supportive employer but conceded that it was not within his remit to comment on how realistic this would be in the open job market.
15. In terms of prognosis, he considered this was moderate, noting her supportive partner and an absence of personality pathology or substance abuse. Dr Schutz said it likely she would have ongoing symptoms for the foreseeable future with a mild to moderate impact on her functioning and quality of life.

1. Dr Awad examined Ms Yarzabal on 14 May 2025 in person. Her report bears the same date.[26] Dr Awad confirmed a diagnosis of adjustment disorder with anxiety and said Ms Yarzabal would be permanently restricted from ever returning to Victoria Police, or any similar organisations.
2. Dr Awad noted that despite opening the shop, Ms Yarzabal often did not complete her hours, required many breaks, mainly sat outside and was unable to run the shop without the assistance of her mother-in-law.
3. Dr Awad considered Ms Yarzabal was not working consistently or reliably and had capacity to work for no more than 15 hours per week in a sedentary role.
4. Dr Awad considered Ms Yarzabal was severely restricted in her ability to return to the workforce in a meaningful way. Dr Awad concluded Ms Yarzabal had effectively come to the end of her working life (at age forty-two). Dr Awad concluded the prognosis was poor.

1. Ms George assessed Ms Yarzabal via Zoom on 19 May 2025 and prepared a report dated 11 June 2025.[27]
2. Ms Yarzabal told Ms George that she was running a store and had an online business. She often received assistance from her mother-in-law when she was unable to run the store due to her mental health. Her mother-in-law worked in the shop during busy periods, including Saturdays and before Christmas.
3. In considering Ms Yarbazal's vocational prospects, Ms George concluded Ms Yarzabal's pre-injury role as a police officer "is not within her functional capacity and is no longer suitable for her".[28]
4. Ms George characterised Ms Yarzabal's current work as flexible self-employment.
5. Ms George compared Ms Yarzabal's current employment with the role of an employee retail manager. She considered the retail employee role would involve organising and controlling the operations of a retail establishment, making complex decisions regarding stock, interacting positively with customers to secure sales, training and supervising staff and dealing with customer complaints. In considering such duties, Ms George concluded that Ms Yarzabal's anxiety, irritability, and impaired concentration would render her unable to deal with such demands, meaning the role was not within her psychiatric capacity.
6. Ms George also considered the roles of:
   • real estate representative
   • warehouse assistant
   • hairdresser; and
   • sales assistant.
7. Ms George said these roles aligned with Ms Yarzabal's prior work experience and qualifications.
8. However, in considering the actual duties involved in each position, Ms George concluded the roles were beyond Ms Yarzabal's psychiatric capacity.
9. Ms George listed a number of reasons for this, including:
   • inability to recall client names and details due to impaired memory;
   • inability to maintain a positive demeanour with customers and work colleagues due to lowered mood;
   • inability to remain calm and meet deadlines due to anxiety and increased irritability; and
   • inability to initiate or complete tasks such as washing benches, sweeping floors, counting stock, processing transactions and handling money due to poor concentration and low self-confidence.
10. Ms George concluded there was no unrestricted recognised occupation for which Ms Yarzabal was likely to be suitable, and that she was currently working at her maximum capacity on a part-time basis.
11. Ms George said that if suitable alternative employment were found, the maximum hours Ms Yarzabal could undertake for the foreseeable future was four hours a day, three days per week.
12. Ms George reviewed the employment options set out in the Nabenet vocational material (discussed below).
13. Ms George considered the options of:
    • facilities coordinator;
    • manager (general);
    • sales manager;
    • training and assessor;
    • personal trainer;
    • local laws officer/compliance officer;
    • community services coordinator;
    • parole coordinator/register officer;
    • investigator;
    • case officer/welfare worker;
    • receptionist; and
    • administration assistant.
14. Ms George considered all of the roles were outside Ms Yarzabal's capacity due to lack of qualifications, work experience and/or the duties being beyond her psychiatric capacity.
15. Ms George considered Ms Yarzabal was incapacitated for retraining for the foreseeable future.

1. Dr Handrinos prepared three reports. The first report dated 7 April 2021 was prepared after an in-person examination. The second report dated 29 March 2023 was prepared after a Zoom videoconference Telehealth examination and the third report was a supplementary report dated 3 May 2023.[29]
2. During the first examination, Ms Yarzabal said her condition had not changed since she stopped work. Her mood was terrible. She felt depressed, angry and irritable. She complained of disrupted sleep, low libido, poor energy and motivation and feelings of nervousness. She denied that her concentration or memory were affected.
3. Ms Yarzabal did not feel strong enough to return to any work due to her tearfulness and emotionality. She said she hoped to return to her pre-injury duties and workplace, once the officer who bullied her had retired. Alternatively, she said she would be willing to work at other stations.
4. On the first MSE, Ms Yarzabal was tidily dressed and groomed. She had a pleasant manner and was tearful on occasions. She was apprehensive, anxious and slightly depressed. Her affect was full range and well communicated. Insight and judgement were not impaired. The main themes in her speech were concerns about the future and she denied any recurring memories of past trauma.
5. Given this, Dr Handrinos diagnosed a mild Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered the symptoms were mild in nature, and persistent.
6. Dr Handrinos considered Ms Yarzabal had no capacity for her pre-injury duties and hours, either at the same or a different station. He declined to provide an opinion on when she could return to work, noting only that review in six to nine months was recommended and that she had indicated a willingness to return to work at a different station.
7. Dr Handrinos re-examined Ms Yarzabal in March 2023. Ms Yarzabal confirmed she had attempted to return to her pre-injury station but only lasted two weeks. She remained angry, irritable, sensitive and moody. She often felt anxious but did not suffer from panic attacks. Her sleep remained disrupted, she had gained weight and she was forgetful, absent-minded, could not concentrate and was experiencing low energy and motivation. She reported significant marital difficulties and that she was unsure whether the marriage would continue, despite attending couple's counselling.
8. She was upset because she was to be retired due to ill-health. She said she would have preferred to make an attempt to return to her pre-injury role.
9. On the second MSE she was described as well dressed and groomed. She gave focussed answers. There was no formal thought disorder.
10. Ms Yarzabal was in tears at times but was alert and concentrated throughout the assessment. Dr Handrinos considered that her judgement and insight did not appear significantly impaired and her thoughts appeared to be centred on her ongoing resentment of Victoria Police. She lacked confidence in considering alternative employment.
11. Dr Handrinos considered Ms Yarzabal was functioning reasonably well but was still suffering from a mild Adjustment Disorder with Mixed Anxiety and Depressed Mood.
12. He considered she retained the capacity for suitable employment, and recommended she consider a gradual paced resumption of paid employment.
13. Dr Handrinos considered vocational options and concluded the options of facilities coordinator, manager (general), and sales manager were probably too ambitious currently, given Ms Yarzabal's lack of self-confidence. He considered the role of training and assessor was feasible, depending on the complexity of the tasks. He also considered personal trainer was a suitable option. He recommended further review in twelve to eighteen months, pending commencement of the ESSS pension and further vocational rehabilitation, if required.
14. In his supplementary report, Dr Handrinos considered further alternative vocational options. He did not re-examine Ms Yarzabal. Ultimately, he considered none of the suggested roles (being local laws officer/compliance officer, parole coordinator, investigator or case officer/welfare worker) were suitable. He commented that the roles were very similar to police work and would likely lead to "remission".[30]
15. He said that Ms Yarzabal's condition was mild and that she did have capacity for employment, but her improvement to date was fragile. He noted that she had recently been retired on ill-health grounds. Future roles should be unrelated to her previous work.

1. Dr Grant provided three reports, dated 17 December 2024, 29 May 2025 and 26 August 2025.[31] Dr Grant first examined Ms Yarzabal via Telehealth on 17 December 2024. Dr Grant re-examined Ms Yarzabal at his rooms on 29 May 2025. His third report was a supplementary report commenting on vocational assessment reports.
2. At the first examination, Ms Yarzabal said when she initially ceased work, her health declined and she felt anxious, tearful and moody and struggled with weight gain. She said her mood had improved with medication and she felt less tearful.
3. There was ongoing irritability at home, reduced capacity for pleasure and low motivation and libido. She experienced suicidal thoughts once. She complained of disrupted sleep and diminished concentration and recall but denied rumination. Ms Yarzabal said she avoided friends who remained in the police force and that she missed her work.
4. Ms Yarzabal was running her shop full time. Opening the business was a relatively impulsive decision after she received a payout of her long service leave and other entitlements. The business was running at a loss and she would give it up once the tenancy expired. She said she got on well with her customers generally.
5. On MSE in December 2024, Ms Yarzabal had a pleasant manner and made good eye contact. There was no psychomotor slowing or agitation; affect was slightly restricted in range; there was no loss of control; speech production and thinking processes were normal; there were no delusions or bizarre thoughts; reality testing and judgement were intact; she was not hopeless or suicidal; there were no hallucinations; her intellect was average and cognition was preserved.
6. Dr Grant noted a significant family history of psychiatric problems with Ms Yarzabal's mother and maternal grandmother, plus significant developmental and relational trauma. Dr Grant considered this had created a considerable vulnerability or predisposition to mood problems in Ms Yarzabal. She had previously experienced a probable episode of mood problems following a motor-vehicle accident which had resolved.
7. Given this, Dr Grant considered that Ms Yarzabal was suffering from a recurrent Major Depressive Disorder, which was in partial remission with treatment, and of mild severity.
8. He considered she had no capacity for a return to work with Victoria Police. She was fit for full-time work with a new employer, or in self-employment, noting she was currently working full time. He considered her prognosis was good.
9. Dr Grant re-examined Ms Yarzabal at his rooms on 29 May 2025 and provided a second report.
10. Ms Yarzabal reported her condition had been stable since the last examination. She confirmed she was working 9.30am to 5.00pm, Monday to Friday, with some help from her mother-in-law on occasion during the week, and on Saturdays. She said the business was not doing well. She had no other plans for work and had not been studying or retraining.
11. She said her friendship circle was reduced but she got on well with the people she did see. Her husband was patient but she was less affectionate with him and had no libido. She had low motivation, tended to procrastinate and struggled with concentrating. She complained of disrupted sleep. She was on medication for weight loss, having lost 9 kilograms after gaining 20 kilograms since ceasing with Victoria Police.
12. On MSE she had a pleasant manner. Her affect was of good range. She was reactive and congruent. She conveyed anxiety about her business circumstances and finances. There was no loss of control. Her speech, thought processes, reality testing and judgment were normal and intact and she was not hopeless or suicidal. Her intellect was average and her cognition preserved.
13. Dr Grant's diagnosis was unchanged. He said she was permanently unfit for pre-injury duties with Victoria Police. He considered she was fit for alternative employment with another employer. He considered the roles as set out in the Nabenet reports, consisting of:
    • receptionist;
    • administration assistant;
    • community services coordinator;
    • case officer; and
    • integration aide.
14. He considered these were all suitable options and that no restrictions or modifications were required. He recommended ongoing review by her psychiatrist every three to four months and sessions with her psychologist every month, until settled into her new role.
15. Dr Grant's third report dated 26 August 2025 was prepared on the papers. He did not re-examine Ms Yarzabal.
16. In his third report, Dr Grant confirmed he had reviewed the Nabenet reports and that Ms Yarzabal was fit for the above roles with no modifications. He said Ms Yarzabal also had capacity to work full time as a sales assistant and retail manager.

1. The VWA tendered several Nabenet reports, dated 17 April 2025, 5 May 2025 and 1 September 2025.[32] Nabenet did not interview Ms Yarzabal.
2. In the first report, Nabenet included details of worksite assessments and labour market analyses for the roles of receptionist, administration assistant and community services coordinator.
3. In the second report, Nabenet included details of worksite assessments and labour market analyses for the roles of case officer and integration aide.
4. In the third report, Nabenet included details of a worksite assessment and a labour market analysis for the role of retail manager.

1. I reject the VWA's submission that Dr Hall did not address the question of capacity for work - she clearly did so.
2. I accept the VWA's submission that Dr Lee did not address the question of work capacity. Given that Dr Lee has been Ms Yarzabal's treating psychiatrist, this a significant omission.
3. I reject the VWA's submission that the application must fail because there was no objective evidence to indicate a severe psychiatric condition, such as hospitalisations or invasive treatments such as TMS. This proposition misstates the relevant test.
4. I reject Ms Yarzabal's submission that she has a significantly impaired capacity for work.
5. I accept the submission that Ms Yarzabal's cessation of work in the Victorian Police and loss of career is a pain and suffering consequence in an Ellis Management Services Pty Ltd v Taylor[33] sense, as it was a loss of amenity.[34]

1. Dr Goureeve's report is now dated. She did not explain why she considered Ms Yarzabal's physical function for police work was impaired.
2. Dr Goureeve considered that Ms Yarzabal was fit for a wide range of alternative employment in mid 2023 and said that the following roles were all suitable from a psychiatric perspective (presumably on a full-time basis): facilities co-ordinator, manager (general), sales manager, training assessor and personal trainer. She did not say that Ms Yarzabal could not return to work as a police officer but expressed the opinion that the above roles were "much more achievable".
3. Dr Siddiqui's report is very brief and does not disclose a path of reasoning. His opinion that Ms Yarzabal had no work capacity in May 2025 was based on his view that she was recovering from Post-Traumatic Stress Disorder. It does not appear that Dr Siddiqui was aware that Ms Yarzabal was working in her shop. Ms Yarzabal is not relying on Dr Siddiqui's opinion regarding work capacity. He was the only doctor who diagnosed PTSD. Given this, I have put his opinion to one side.
4. Dr Hall was initially supportive of a graduated return to police work. Her opinion appears to have altered after Ms Yarzabal made an attempt to return to work and later said she did not feel able to return to policing.
5. In a report dated 23 June 2025, Dr Hall said that Ms Yarzabal appeared to be honest and reliable. It seems that Dr Hall adopted Dr Handrinos' diagnosis of mild Adjustment Disorder.
6. No up-to-date material has been produced from Dr Lee. The only material before the Court is the letter dated 20 October 2023 which relates to Ms Yarzabal's initial attendance in August 2023 and a phone call on 5 October 2023. There has been no explanation given about the lack of any up-to-date material from Dr Lee.
7. Given Dr Lee is Ms Yarzabal's treating psychiatrist, and given Ms Yarzabal told Dr Gallogly in May 2024 that Dr Lee wanted to admit her to a local mental health facility, it is surprising that no further material has been produced. Dr Lee's views as to Ms Yarzabal's current situation, including her capacity to work, would have been of considerable assistance to the Court.

1. Dr Gallogly was concerned with the provisions of the Emergency Services Superannuation Act 1986 and, in particular, the definition of "disability" under that Act. Given his findings on the MSE, his ultimate opinions were largely based on what Ms Yarzabal told him.
2. Dr Schutz's findings on MSE were unremarkable. Given this, his ultimate opinions also appear to have been largely based on what Ms Yarzabal told him.
3. Dr Awad is an occupational medicine physician. In her report dated 14 May 2025, she said:

"The medical advice in this report has been formulated based on the information provided to me by Ms Yarzabal (their history and a clinical examination) and the documents listed above."[35]

4. Dr Awad was provided with a number of medical reports which have not been presented to the Court, as well as clinical records which have not been provided to the Court. They include the following:
   • reports of Dr Faisal Siddiqui, dated 8 June 2003 and 30 October 2024;
   • report of Dr Margaret Hall dated 11 February 2024;
   • report of Dr Suzanne Teh dated 10 March 2022;
   • reports of Dr Christine Kotsios, dated 21 February 2023 and 30 April 2024;
   • reports of Dr Dennis Handrinos, dated 23 June 2023 and 19 July 2023;
   • report of Professor Mark Walterfang dated 23 February 2024 (including evaluation record);
   • reports of Nabenet, dated 20 December 2022, 25 January 2023, 26 April 2023 and 6 June 2023;
   • records of Dr Angela Lee as at 28 April 2025;
   • records of Dr Margaret Hall as of 26 June 2023;
   • records of Ballarto Medical Centre as at 11 May 2023 and 22 June 2021; and
   • records of My Health Medical Centre Chadstone as at 22 May 2023.[36]
5. Dr Awad appears to have adopted a diagnosis of Adjustment Disorder with Anxiety. Insofar as she has purported to express her own diagnosis, I accept the VWA's submission that any such diagnosis should be disregarded as Dr Awad is not qualified to give such an opinion.
6. Despite being told that Ms Yarzabal was working full time at the time of the examination, Dr Awad expressed the opinion that Ms Yarzabal only had a residual capacity for work outside the police force of 15 hours per week and that she had effectively come to the end of her working life. I find Dr Awad's views on industrial capacity as overly pessimistic and contrary to the facts. I do not accept them.
7. Ms George also had pessimistic views about capacity. She said that Ms Yarzabal was fit for 12 hours' work per week. She suggested that Ms Yarzabal would not be able to work in retail despite the fact that Ms Yarzabal has in fact been running her own business, working in excess of 12 hours per week, with all the stressors involved in being a small business owner.
8. I accept the VWA's submissions that Ms George's comments regarding the extent of memory problems lack any evidentiary basis and are contrary to the evidence. I find Ms George's views on industrial capacity as overly pessimistic. I do not accept them.

1. Both Dr Handrinos and Dr Grant considered what Ms Yarzabal told them, as well as the fact that she had been able to open and run her own business.
2. I prefer their views on Ms Yarzabal's capacity for alternate employment as they are more realistic.

1. After considering all the evidence, Ms Yarzabal may have had a Major Depressive Disorder in the past but that disorder has improved with treatment. I am satisfied that as a matter of probability she now has a Depressive Disorder of mild severity.

1. I find that, given the passage of time and the ongoing nature of the complaints, Ms Yarzabal's psychiatric condition injury is permanent in the requisite sense. In making such a finding, I do not find that all the claimed consequences persist.

1. The Court has to determine whether Ms Yarzabal has suffered a reduction in her earning capacity which satisfies the requirements of s325(2)(e) of the Act.
2. In summary, the appropriate sequence for the Court to follow is:
   • determine Ms Yarzabal's "without injury" earning capacity;
   • calculate the amount which is 60 per cent of the "without injury" earning capacity; and
   • determine whether Ms Yarzabal has proved that her "with injury" earning capacity is no greater than 60 per cent of the "without injury" earning capacity.
3. It was difficult to ascertain what Ms Yarzabal is currently earning. The tendered documents are confusing. According to Ms Yarzabal's 2025 taxation return, she received a police pension of $54,393 (which is not income from personal exertion); the business produced $88,493 in revenue but sustained losses of $34,074. According to the ATO Notices of Assessment, her taxable income for the financial year ending 30 June 2024 was $51,219 and for the financial year ending 30 June 2025, it was $19,890.[37]

1. The parties agreed that the applicable sixty per cent figure was $53,976 (annualised) or $1,038 per week.
2. The parties agreed that this figure "most fairly reflects" the worker's earning capacity had the injury not occurred.
3. It was submitted on behalf of Ms Yarzabal that she met the requisite 40 per cent pecuniary loss test, as she was currently earning $19,890 gross per annum. Implicit in that submission was the assertion that Ms Yarzabal could not currently earn more than $53,976.
4. It should be remembered that the assessment of "without injury" earning capacity is to be approached on the basis that it represents a capital asset which, when exercised, produces income from personal exertion.[38]
5. Evidence of a worker's actual earnings will not always be the best evidence of the worker's earning capacity. The Court must assess all the evidence to determine which scenario most fairly reflects the worker's earning capacity.

1. I find that the medical evidence supports the proposition that Ms Yarzabal does not have the capacity to return to her pre-accident employment. I find that she has the capacity to work full time in her current position, as she is currently doing. There is no medical evidence to support her assertion that she has needed to take any time off work due to the claimed injury nor is there any material from a lay witness such as Ms Yarzabal's mother-in-law to support this.
2. I accept the opinions of Dr Handrinos and Dr Grant, who considered that Ms Yarzabal had the capacity to work in suitable employment.
3. She has the capacity to earn in excess of what she is currently earning. I find she has the capacity to work in roles such as:
   • Receptionist - $57,720
   • Integration aide - $70,788
   • Administrative assistant - $67,860.
4. None of the above roles require any further qualifications.
5. I therefore find that the plaintiff has not satisfied the provisions of s325(2)(e)(i) and (ii) of the Act, as she has not sustained a loss of capacity of 40 per cent or more, and this loss is permanent.

1. I now turn to consider whether Ms Yarzabal has established that her pain and suffering consequences meet the statutory test.
2. Ms Yarzabal's evidence as to pain and suffering consequences has been summarised earlier in this judgment and will not be repeated here.

1. The medical evidence is that Ms Yarzabal cannot return to work at Victoria Police. Those opinions are, in part, based on what Ms Yarzabal told the examiners. The opinions have also been informed by her presentation at the examination, the interpretation of MSEs and the examiners' experience and qualifications. I have found that Ms Yarzabal has been unreliable, and I have factored that into my consideration of the medical opinions in this case.
2. I am mindful that in Ellis, the Court was dealing with a claim under subparagraph (a) and not subparagraph (c). In Ellis, the loss of career was considered to be a pain and suffering consequence which, when combined with the other consequences, satisfied the "very considerable " test.
3. There have been very few cases in which the Court has had to consider whether a loss of career is a pain and suffering consequence which could in and of itself satisfy the "severe" test.
4. Whilst every case is different, I note that in Schotten v Victorian WorkCover Authority,[39] a loss of career which was found to be the plaintiff's passion and dream was considered to be a relevant pain and suffering consideration. That loss in combination with the need for ongoing treatment was sufficient for the Court to conclude that the plaintiff had satisfied the "severe" test.
5. In contrast, in Gibbons v State of Victoria,[40] the Court found that the loss of a career in the police force was a "serious" consequence but was not a "severe" consequence, as the plaintiff in that case had been able to return to a responsible job.
6. This is a gateway application and I have not heard from the medical examiners. Despite my finding as to reliability, I accept that Ms Yarzabal may have lost her career and that this one factor to be taken into account when considering whether the "severe" test has been met.
7. This is a finely balanced case. On one hand Ms Yarzabal has retained the ability to:
   • work in alternate employment;
   • socialise;
   • travel.
8. On the other hand:
   • she has lost her career;
   • she continues to attend a psychologist and a psychiatrist for treatment;
   • she will need to take ongoing medication albeit at a modest level.[41]
9. Considering the evidence as a whole, I find that the impairment consequences, and, in particular, her apparent loss of career, meet the "severe" test for pain and suffering.

1. Ms Yarzabal has not discharged her onus regarding pecuniary loss but has satisfied the Court that she has met the "serious injury" test for pain and suffering.
2. Ms Yarzabal has leave to commence proceedings for pain and suffering only.
3. I will hear argument with respect to costs.

1. [1] Katanas v Transport Accident Commission [2016] VSCA 140 at paragraphs [19] and [30] (per Ashley and Osborn JJA)

[2] Katanas (ibid) at paragraph [29]

[3] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 154

[5] Including Cranbourne, St Kilda and Kerang

[6] In contrast, Dr Hall said Ms Yarzabal attended monthly via Telehealth - nothing turns on this.

[7] Plaintiff's Exhibit P1, Plaintiff's Court Book ("PCB") 19, paragraph 18

[8] Plaintiff's Exhibit P1, PCB 20, paragraph 21

[9] Transcript ("T") 13, Line/s ("L") 6-13

[13] [2010] VSCA 69; (2010) 31 VR 1 at paragraph [12]

[14] Dordev v Cowan & Ors [2006] VSCA 254 at paragraph [14]

[18] Plaintiff's Exhibit P5, PCB 39-62 (dated 4 June 2021, 21 February 2022, 11 June 2022, 26 July 2022, 28 February 2023, 13 June 2023, 18 June 2023, 9 July 2023, 9 July 2023 and 23 June 2025)

[21] Plaintiff's Exhibit P7, Defendant's Court Book DCB 29-35, PCB 63-65

[22] This is not mentioned in any affidavits. No other doctor has taken such a history and no material has been produced from Dr Lee about this.

[23] Plaintiff's Exhibit P8, PCB 121-130

[25] This was consistent with her presentation to the Court

[26] Plaintiff's Exhibit P9, PCB 131-136

[27] Plaintiff's Exhibit P10, PCB 101-120

[30] The use of the word 'remission' needs to be read in context - it appears that Dr Handrinos was really referring to 'regression'

[32] Defendant's Exhibits D5-7, DCB 61-78 and 555-559

[33] [2013] VSCA 326 ("Ellis")

[38] The Herald & Weekly Times v Jessop [2014] VSCA 292 at paragraph [53]

[39] [2023] VCC 2208

[40] [2024] VCC 1980

[41] Hunter v Transport Accident Commission & Anor [2005] VSCA 1