IN THE COUNTY COURT OF VICTORIA 
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
GENERAL LIST		

Case No. CI-19-02167

LUZINDA ELIZABETH GARTMANN	Plaintiff	
		
v		
		
DOMINION HOTEL GROUP PTY LTD
(ACN 135 105 887)	Defendant	

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JUDGE:	HIS HONOUR JUDGE PARRISH	
WHERE HELD:	Melbourne (via Zoom)	
DATE OF HEARING:	26 to 30 October 2020; 4 November 2020; 5 November 2020 (when mediation undertaken); 6 November 2020; 11 to 13 November 2020; 16 to 20 November 2020; 24 to 26 November 2020 and 7 December 2020	
DATE OF JUDGMENT:	14 July 2022	
CASE MAY BE CITED AS:	Gartmann v Dominion Hotel Group Pty Ltd (ACN 135 105 887)	
MEDIUM NEUTRAL CITATION:	[2022] VCC 1035		

REASONS FOR JUDGMENT
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Subject:	NEGLIGENCE AND/OR BREACH BY DEFENDANT OF ITS DUTY PURSUANT TO SECTION 14B(3) OF THE WRONGS ACT 1958

Catchwords:	Plaintiff slipped and fell during the course of her employment with the defendant – alleging injuries to her neck, left shoulder, left arm, together with Chronic Regional Pain Syndrome Type 1, headaches, Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, Somatic Symptom Disorder and Gastritis – proceedings for “pain and suffering” and “pecuniary loss” damages pursuant to the provisions of the Accident Compensation Act 1985 (as amended)

	Defendant sued in both negligence and breach of an occupier’s duty – defendant denies liability – allegations of contributory negligence – issues of credit and the extent of any injuries

Legislation Cited:	Accident Compensation Act 1985 (as amended); Wrongs Act 1958

Cases Cited:	Gartmann v Dominion Hotel Group Pty Ltd (ACN 135 105 887) (Ruling No 1) [2020] VCC 1753; Fox v Wood (1981) 148 CLR 438; Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594

Judgment:	Judgment for the plaintiff.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr T P Tobin SC with
Mr G K Coldwell	Alessi Legal	
			
For the Defendant	Mr R H Stanley with
Mr M Clarke	Russell Kennedy	

Table of Contents
Introduction
The evidence
Liability
(a)	The evidence-in-chief of the Plaintiff
(b)	The cross-examination of the Plaintiff
(c)	The evidence-in-chief of Tiffany LaRocca
(d)	The cross-examination of Ms LaRocca
Determination of the issue of liability
Quantum
(a)	The evidence-in-chief of the Plaintiff
(b)	Further evidence-in-chief from the Plaintiff
(c)	The radiology and other investigations
(d)	The medical and like treatment of the Plaintiff
(e)	The medico-legal reports relied on by the Plaintiff
(f)	The medico-legal evidence relied on by the Defendant
The evidence of Dr Barton
The cross-examination of the Plaintiff
(a)	Prior medical history
(b)	Histories to doctors
(c)	Surveillance of the Plaintiff
(d)	Editing the Facebook entry
(e)	The initial insistence by the Plaintiff that she had deleted her Facebook entries
(f)	The social life of the Plaintiff
Other lay witnesses called by the Plaintiff
(a)	The evidence of Mrs Mary Elizabeth Gartmann
(b)	The evidence of Mr Andrea Gartmann
(c)	The evidence of Ms Stephanie Carol Gebert
(d)	The evidence of Mrs Heidi Maria Collins
(e)	Other lay witnesses relied on by the Plaintiff
Findings in relation to issues of quantum
Findings
Damages
Assessment of pecuniary loss damages
Loss of earning capacity
Pain and suffering damages

HIS HONOUR:
 
Introduction
1	In this proceeding, there is no issue that, on 13 July 2012, Ms Luzinda Gartmann, who I shall refer to as “the plaintiff”, was working as a waitress/bar attendant at the Kealba Hotel at the corner of Sunshine Avenue and Main Road East, Kealba (“the premises”) when she slipped and fell (“the incident”).  There is also no issue that the premises were owned and controlled by the defendant.
2	By way of her Statement of Claim, the plaintiff alleges that she slipped on a “wet tiled floor” and fell, causing various physical and psychological injuries.  The plaintiff alleges that the incident was caused by the negligence of the defendant, its servants or its agents and/or, in the alternative, by a breach of the defendant of its duty as an occupier pursuant to s14B(3) of the Wrongs Act 1958.
3	The plaintiff alleges the following Particulars of Negligence:
(a)	failing to provide a safe system of work;
(b)	failing to provide a safe place of work;
(c)	failing to take reasonable care for the safety of the plaintiff;
(d)	providing a floor that had a slippery surface;
(e)	providing a floor that had black slippery tiles in a potential wet area;
(f)	allowing a slipping hazard to be present at the premises;
(g)	failing to warn the plaintiff that the floor was slippery;
(h)	failing to respond to complaints that the floor was slippery;
(i)	failing to apply a non-slip surface to the floor;
(j)	failing to place non-slip rubber mats on the floor surface;
(k)	allowing water and/or drinks to be spilt or otherwise fall from the bar to the floor surface;
(l)	failing to inspect the floor adequately or at all;
(m)	allowing the plaintiff to work at the premises when it knew, or ought to have known, that a slipping hazard was present;
(n)	failing to check the floor was clean and safe;
(o)	failing to remove liquid from the floor;
(p)	failing to have any adequate system to inspect and clean the floors at the premises; and
(q)	failing to have in place a cleaning system whereby slipping hazards were removed from the floor in a timely manner.
4	The plaintiff alleges that the negligence and/or breach of statutory duty on the part of the defendant caused the plaintiff to suffer injury, loss and damage.  The plaintiff relies on the following Particulars of Injury:
(a)	a neck injury;
(b)	subluxation of C3 cervical disc causing discogenic pain;
(c)	left shoulder injury;
(d)	dislocation of AC joint;
(e)	left arm injury;
(f)	Chronic Regional Pain Syndrome Type 1;
(g)	headaches;
(h)	Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood; and
(i)	Somatic Symptom Disorder.
5	During the course of the trial, an issue arose as to whether the plaintiff could rely on “lymphocytic gastritis, secondary to the use of non-steroidal anti-inflammatory medication” as an injury suffered by her.  In particular, on 27 October 2020, Senior Counsel for the plaintiff informed the Court that a letter had been sent by the solicitors for the plaintiff on 22 October 2020 – not long before the trial commenced – advising those acting for the defendant that it was sought to amend the Particulars of Injury to include such condition and, furthermore, by way of oversight, such application had not been made at the beginning of the trial.  Those acting for the defendant opposed such application, given that it was made a number of days into the trial, and this was the first notice of any reliance on such an injury.
6	I was further informed that, at the serious injury stage of the proceeding, the plaintiff had relied on such condition and, indeed, there had been an exchange of  reports from a Dr Connelly, a gastroenterologist, who had treated the plaintiff for such condition.  
7	In such circumstances, those acting for the plaintiff submitted that the defendant was on notice that such injury was to be part of the claim and could not be said to have been taken by surprise.  Discussion of this issue ensued between the parties and ultimately I made an initial decision to reserve my decision as to whether the plaintiff could amend her Statement of Claim to include such injury.  The reason for reservation at that time was to allow the defendant to have time to arrange, if it saw fit, for a gastroenterologist to give an opinion on the condition and its causation.  
8	Both parties accepted this as a reasonable compromise to allow time for the defendant to meet the matter if it saw fit and, if it could not, the Court would revisit the situation.
9	Ultimately, the defendant did not oppose the addition of such injury to the “Particulars of Injury”, and I made an Order on 17 November 2020 permitting those acting for the plaintiff to amend the Statement of Claim to include such injury.
10	The plaintiff claims “general damages” and “pecuniary loss” as governed by the Act.
11	By way of its Defence, delivered on 20 February 2019, the defendant:
(a)	admits incorporation;
(b)	admits that it employed the plaintiff as a waitress and that it owed a duty to take reasonable care for her safety;
(c)	does not admit the incident;
(d)	denies both negligence of breach of any statutory duty as an occupier;
(e)	does not admit the alleged injuries suffered by the plaintiff and generally denies the relief sought; and
(f)	in the alternative, if the defendant is found guilty of negligence, the defendant also alleges contributory negligence, the Particulars of which are:
(i)	failure to keep any proper lookout for any spilled beverages;
(ii)	failing to exercise reasonable care for her own safety in the circumstances;
(iii)	failing to watch where she was placing her heel;
(iv)	failing to wear appropriate footwear in accordance with the defendant’s policy;
(v)	failing to notice the floor was slippery and/or wet;
(vi)	failing to report the fact of any liquid on the floor to the defendant;
(vii)	if assistance or further assistance was required (which is not admitted), then failing to seek or utilise such assistance; and
(viii)	failing to make any complaints to the defendant of any difficulty with which she may have been suffering while carrying out her duties.
The evidence
12	The plaintiff prepared a folder of documents entitled “Plaintiff’s Tender Book” and which I shall refer to as PTB.  The PTB lists all the documents relied on and tendered by the plaintiff.  In particular, exhibit 6 contained the plaintiff’s witnesses, photographs and other material.  Most of the documents contained in paragraph 6 are the medical reports relied on by the plaintiff.  When reference is made to any particular medical report, I shall refer to the plaintiff’s Amended Court Book (“PACB”), which contains the various reports and other documents, each separately numbered.  I should add that the PTB does contain all the medical reports.  
13	The defendant prepared a folder entitled “Defendant’s Exhibit Folder”, which sets out a list of all the documents relied upon and tendered by the defendant.  I shall refer to that book as the “DEF”.  The DEF identifies each document in the folder by way of alphabetical numbering.  Accordingly, when the Court makes a reference to a particular document which has been tendered by the defendant, reference will be made to the DEF, using the alphabetical numbering.  
14	It is convenient to split up the general issues of liability and quantum.  The Court intends to initially set out the evidence pertaining to the alleged liability of the defendant and to determine whether the plaintiff has discharged her onus to establish that liability.  In the event that she establishes such liability, I will set out the evidence pertaining to quantum and determine issues in relation to any damages to be awarded.
Liability
(a)	The evidence-in-chief of the Plaintiff
15	The plaintiff gave evidence that she is a single woman who was born in March 1993, and that at all material times she has continued to live with her parents and one sibling, an older brother.  She was nineteen years old at the time of the incident.
16	Her father was employed as an electrical engineer but had been unemployed for about two years due to ill health.  Her mother works at DHL Global Forwarding in administration and reception, and her brother, although a qualified plumber, was not currently employed at that time.
17	The plaintiff was presently employed by The Les Twentyman Foundation as a digital content officer, which involves updating social media platforms.  She commenced such work in approximately July 2019, and works approximately 15 hours per work, and during COVID that work has been done remotely from her place of employment.
18	The plaintiff attended local schooling until about Year 8, when she went to the Ave Maria College, where she completed her studies in 2010 when she completed Year 12.
19	When she was studying, she obtained work experience with the Channel 7 network – initially at the end of Year 11, and then again in Year 12.  The plaintiff obtained references which consisted of a written reference from a Mr Christopher Jones dated 31 August 2010 and a video reference from Mr Tom Rehn dated 12 September 2010.  The plaintiff gave evidence that she wanted to be a journalist, and the reason for obtaining such references was to assist her in pursuing her studies, as she wished to pursue television and journalism courses.
20	The plaintiff successfully completed her VCE at the end of 2010 and gained entry to the RMIT television and screen media course which commenced at the beginning of 2011.  She commenced that course, but after a few weeks, she contracted glandular fever and she had to defer the course because of that.
21	The plaintiff gave evidence that prior to the onset of glandular fever she had experienced “good” health, and commented that she was awarded the 2008 Herald Sun Volleyball Player of the Year.  She noted that she also enjoyed tennis.
22	In particular, the plaintiff gave evidence she had no physical restrictions or psychological problems during her secondary schooling.  After contracting glandular fever in 2011 and deferring her course, her major symptoms during 2011 were that she felt tired and experienced headaches, but noted they “weren’t like the ones that I experience now”.
23	The plaintiff gave evidence that as a result of her discontinuing her studies she was “out of action” for some period of time, but in the second half of 2011, she returned to work experience at Channel 7.  In particular, whereas in 2010 she had gone out with Tom Rehn and followed him around the road, in 2011, she went out under Leith Mulligan, who was a sports journalist with Seven News, and did stories on her own.  By that, she described how she was independent of Leith Mulligan, and although she could not remember clearly what stories she was involved in, she did recall one story involving the jockey, Damien Oliver, together with attending the Melbourne Victory training and also attending the Presidents Cup (a golf event) and tennis.
24	The plaintiff gave evidence that on the advice from Leith Mulligan, she changed her course from the deferred course in 2011 to a different course in 2012 – that is, a Bachelor of Communications majoring in Media Studies which was to be undertaken at the Swinburne University by way of remote learning.  The plaintiff commenced that course at the beginning of 2012.  
25	The plaintiff also gave evidence that in or about March 2012, she completed a course involving the Responsible Service of Alcohol which was completed before commencing employment with the defendant on or about 10 April 2012.  She was employed by the defendant as a waitress/bar attendant at the Kealba Hotel, and it was her intention to work three or four shifts a week, accompanied by doing four units of study per teaching period.  The shifts that she worked consisted generally of afternoon or morning shifts.
26	After commencing work, she usually worked behind the bar and also waitressed, but was predominantly behind the bar serving drinks.  Over the period from her commencement in April 2012 until the incident on 13 July 2012, she worked on a regular basis, and enjoyed such work.  A friend, Ms Tiffany LaRocca, also obtained employment at the Kealba Hotel.
27	The plaintiff describes how her work was never questioned, and she never got into trouble, and considered herself to be “reliable”, and she was there “to do my job”.
28	She described the hotel as a large one, incorporating three separate areas: that is to say, a bistro dining area where she was working, a TAB area and a sports bar, and also a third section which involved “the pokies”.
29	In the bistro dining area where she was working, there were tables for the service of food, and she estimated that that area could hold 200 to 300 people.  Table service was provided to the patrons who were sitting at the tables, and she estimates that leading up to the incident, she did waitressing duties “possibly three or four” times, at other times providing bar duties.
30	On the night of 13 July 2012, she was directed by the manager on duty, who she recalled to be a female called “Terri”, that she was to perform waitressing duties during that shift.  She commenced at approximately 5 or 6 o’clock at night, and by 7.30pm she described the hotel to be “busy”.  In answer to a query from the Court, there was no particular time that she would finish, and her finishing time depended on how busy the hotel was, but roughly around 9.30pm.
31	The plaintiff did note that on the night of her fall, she initially performed some bar work, but her friend, Ms Tiffany LaRocca, commenced employment a short time earlier, and she had to learn bar work, so when she arrived on the night, the plaintiff was placed on the floor and her friend performed bar work.
32	The plaintiff was shown a photograph, and the plaintiff identified the photograph as depicting the right side of the bar in the bistro, after which the following evidence was given:
Q:	“And what is that of?---
A:	That is the right side of the bar.
Q:	Right.  When you say the right side of the bar, is that an island bar?---
A:	Yes, it is but we would serve drinks from this side.
Q:	Right?---
A:	And if it was extremely busy – I think on probably two occasions we opened – we served off both sides but it was majority off this side.
Q:	And when you say you would serve, is the area in which you were doing the servicing – doing the serving shown on that bar?  Shown on that photograph?  The area from where you served is that - - -?---
A:	Yes, yes, yes.
Q:	Right.  Can you – in that photograph there appears to be a floor tiling around the bar, can you described (sic) what [the] floor tiling was made of?---
A:	I don’t know exactly what it is but it’s shiny black – well, it doesn’t appear black here, but it’s very dark at the night time.
Q:	And you say it’s shiny?---
A:	Yeah.
Q:	And just so we can get some idea of the size of those tiles can you make an approximation of their width?---
A:	Maybe about 50 or - 50, 60 centimetres.
Q:	And when you were delivering food - or sorry, when the bar was set up on that night are you able to say in respect of the carpet area to the right of the tiles, where tables and chairs were in respect of that meeting point between the carpet and the tiles; how close the tables and chairs were to that point?---
A:	Yeah, they were quite close.  I - I don’t recall on the night exactly how it was set up, it depends - the patrons who come in, like the table arrangements change because if there was a table of four, and there was a table of six set up, we would move a table and set it up for a table of two, and a table of four.
Q:	When you were going from the serving area to deliver meals to the other end of the bar did you walk along the tiled area or did you walk on the carpet area?---
A:	No, I walked on the tiled area.
Q:	Why would you be walking on the tiled area rather than the carpet area?---
A:	Because there were tables there.
Q:	Now, just in relation to that bar area whilst you were working before the accident was there any part around that bar where there were carpets or towels or anything like that on the floor, on a regular basis?---
A:	Yes.
Q:	Whereabouts, and for what - - - ?---
A:	So, you can’t see on this photo but it’s pretty much the same, but on the end of the bar we had a big water tank and we would continuously fill that up with ice.  However, it did leak often and it would cause spillages on the floor, so we put towels under it.
Q:	Right.”
HIS HONOUR:
Q:	“When you say a water tank, was this available to patrons who wanted iced water; they’d just go and help themselves, is that the case?---
A:	Yes, Your Honour.
Q:	Yes, thank you.”
MR TOBIN:
Q:	“And in relation to the people who were able to go and get that iced water, was it limited to adults, or was that something the children could access as well?---
A:	Yeah, no, kids would always play with it.
Q:	Right?---
A:	Yeah.  It was accessed by both.
Q:	How frequently was it that towels were put on the floor near that water dispenser?---
A:	Weekly, I would say.
Q:	Right.  Apart from that position where towels were used, was there any other covering put on that surface whilst you were working there before your fall?---
A:	No.
Q:	In relation to that area did you have any comment made to you by patrons in the weeks prior to your fall about that area?---
A:	Yeah, I did.
Q:	Tell His Honour what that comment was?---
A:	So, about a week before I fell, a male approached me, he was very angry, and he had stated that his mum had like slipped and he caught her.  And he was yelling at me saying that something needs to be done because he said that - his words were ‘that would have been the end of her’.  But he was very - - -
Q:	Did you make any response to that?---
A:	I apologised to him, and I told him that I would tell my manager.
Q:	After that male approached you and spoke to you, what then happened regarding you and your manager?---
A:	I informed my manager - my manager, I’m quite certain it was Terry came to me because she saw me getting yelled at, and he said - she asked me what he was yelling at me for.  And I told her that his mum had slipped and she had - he was yelling at me because of that, and she didn’t - nothing really was said to me anyway.
Q:	Apart from that event when that man yelled at you, were you aware of any other people having difficulty with balance in that area?---
A:	I seem - - -.”
MR STANLEY:  
	“Your Honour, I just object and ensure that the question is framed whether she saw - - -.”
MR TOBIN:
Q:	“Right, I’ll put it in the first.  Did you see anyone else having any problems with balance in that area?---
A:	I did.  I witnesses (sic) two kids fall in my three months of being there.
Q:	When you say witnessed them fall, can you say whether – where it was in relation to the tiled area that you saw them fall?---
A:	It was near the water tank on the opposite side.
Q:	Right.  Now, on the - - -.”
HIS HONOUR:
Q:	“When you say the opposite side, opposite side to what?---
A:	Sorry, to this photo.
Q:	I see.  Just while I’m talking to you, I just again just want to clarify in my own mind, I understand where you’ve talked about the water cooler, you’ve talked about this bar here being the primary bar and the other one was only opened when it was very busy, is the bar service area the length of the bar or is it just where I see glasses and looks like two vertical stilts going up with a TV or blackboard there or something?---
A:	So, we would serve this whole – sorry, we would serve this whole side and, sorry, you before you stated that it might’ve been like something to heat – where I fell it wasn’t a bain-marie, it was actually an ice-cream – that’s where ice-cream was served.
Q:	That’s what we saw running that – I think I mentioned running 45 degrees?---
A:	Yes, that’s an ice-cream - - -.”
33	The plaintiff was asked whether, although the photograph was some eight years later, there was any significant change in the structure and nature of those tiles compared to what it was back in July 2012, to which she said “No”.
34	The plaintiff described that on the night of the incident she was looking for a table number, as she was taking meals to various tables.  The tables were beyond the bar, in a big open space, and the tables go from the bottom right-hand corner of the photograph around all the way to the playground at the back, which the photograph could make out slightly.  The plaintiff was not sure whether she was carrying two or three plates, but they were taught to hold three.  However, she does recall that one of the plates had a serving of parmigiana because it went all over her clothing.  She described the plates as “dinner plates”, “quite large and heavy” – “Heavier than a usual plate.”
35	In particular, the following evidence was given in relation to her fall:
Q:	“As you walked along that tiled area can you tell His Honour what happened?---
A:	I recall going to hand out food.  I was walking.  I remember slipping. I slipped.  I’m not sure which foot it was.  I didn’t know at the time I slipped but I felt the sensation of going backwards and then I went forward to try and save myself.
Q:	What happened?---
A:	There was a table in this photo on the left of where this area is, and I fell down onto my left side and I struck the table with my shoulder.
Q:	When you say in the - where was that table - looking at that photograph there, and you say it’s on the left, is it at the end of the aisle of tiles or - - - ?---
A:	Yeah, so it was just off the tiled area to the - to the left of the bar on this photo.”
HIS HONOUR:
Q:	“Just so I understand - - - ?---
A:	You get it, yeah.
Q:	If the table was there, as it were, when this photo was taken, would I see the table clearly at the end of the tiled area or is it around the corner, for want of a better word, to the left, and it would not be visible from this photo, or is it - would it have been partly visible and partly round the corner, if that makes sense?---
A:	So, it was pretty in line with the end of this bar, it was slightly to the left, but it led - we had a pathway to walk through, partly, yeah.”
MR TOBIN:
Q:	“Yes, and did your body in any way strike the table?---
A:	I recall my shoulder.
Q:	Which shoulder?---
A:	My left.
Q:	And apart from your left shoulder striking the table did you fall as well?---
A:	Yes, I hit the table, then the floor.
Q:	Did you drop the plates?---
A:	Yes, they flew.
Q:	Was - could you describe the fall as to whether it was something that happens - was it a quiet fall, or was noise associated with it?---
A:	No, it was quite loud.  I recall the - I recall like everyone stopped, it was - it was quite loud, yes.”
HIS HONOUR:
Q:	“And I take it from what you tell me, do the plates break, the - when they fell - - -?---
A:	To be honest I don’t - I don’t know what happened to the plates.
Q:	Yes?---
A:	But the food was definitely covering me.”
MR TOBIN:
Q:	“And when you - the fall stopped, where were you?---
A:	On the floor.
Q:	Can you remember whether you were on your back or were you on your side, or - - - ?---
A:	On my left side.
Q:	What happened immediately after the fall finished?---
A:	A man helped me up and then Tiffany approached me because she saw me on the ground, and then Terry approached me as well.
Q:	Right.  Now, the man that helped you up, was he an employee?---
A:	No, he was a patron.
Q:	And do you know where he was at the time of your fall?---
A:	I’m quite certain he was sitting at the table.
Q:	Right.  And Tiffany, do you know where she was at the time of your fall?---
A:	She was working behind the bar.
Q:	And you say Terry came – can you say where she – well, sorry.  How long after the man and Tiffany attended to you did Terry come?---
A:	Someone informed her I fell, maybe – I don’t remember but like a minute maybe.
Q:	After you fell did you make any observation of what caused you to fall?---
A:	As soon as I got up, I walked – like I turned around because I knew I slipped but I didn’t know how and you could visibly see my sliding – my foot slide marks though – on the tiles.
Q:	And you say through, through what?---
A:	Liquid.  I’m not sure what was – it was spilt but there was a spillage about maybe 20 centimetres by 20 centimetres.
Q:	And how long was the skid mark?---
A:	It was quite – quite long.  Probably about 60 centimetres.
Q:	Right.  That mark - did you recognise what the liquid was that you slipped on?  I can’t – I don’t – I don’t know.”
HIS HONOUR:
Q:	“The liquid you saw though, did it appear to be coloured or clear or what?---
A:	I couldn’t see what colour it was because the tiles are pretty dark, it just appeared to be clearish.
Q:	And just what I wanted to ask you earlier, you’ve told the court that before this – sorry, don’t – I jumped to[o] quickly.  You had done the service work on about three or four occasions, is that right?---
A:	Yes.
Q:	In distinction to the bar work.  And this is obviously the last time you did service work, so does it follow prior to this night you’d done service work three times maybe four times, that sort of order, is that correct?---
A:	Yes.
Q:	Yes.  Thank you.”
MR TOBIN:
Q:	“You mentioned that it was a liquid but you also mentioned that that was an area near where there was an ice-cream serving?---
A:	Yes.
Q:	Did it appear to be an ice-cream or a drink type liquid?”
MR STANLEY:  
“Your Honour, I think this is getting into leading here - - -.”
MR TOBIN: 
“Right.”
MR STANLEY:  
Q:	“Clearly asked?---
A:	It wasn’t milky.”
HIS HONOUR:  
“Ms Gartmann, just stop there.  No, I won’t allow that question, you can- - -.”
MR TOBIN:
Q:	“After observing that mark on the tiles, did you make any observation of that to anyone else?---
A:	Yes.
Q:	To whom?---
A:	I told – Terry approached me and asked me what had happened and I told her I slipped and then I showed her where I slipped and it was clearly visible.
Q:	Right.  And when you say you showed her did she in any way react to what you’d shown her?---
A:	I can’t recall clearly what happened, I – she – I think she’d asked – we went upstairs after that I don’t - - -
Q:	When you say you went upstairs, where did you go upstairs?---
A:	So, we walked down here and then we went towards the left of this photo and we went upstairs into the manager’s offices.”
HIS HONOUR:
Q:	“Ms Gartmann, I didn’t understand that totally.  Looking at the photo, so you walked back towards [where] the cameraman would’ve been at that stage?---
A:	Yes, Your Honour.
Q:	Turn – it would’ve been your right would it where you got to that corner?---
A:	Yes, Your Honour.
Q:	And then that goes off and upstairs somewhere?---
A:	Yes, to the manager’s offices.
Q:	The other thing I just wanted to ask, you may have made this clear, I may have missed it, the man who stood up and you believed was on that table, the one which was in front of you as you tripped, was that the table where you were intending to serve the meals or was it somewhere else?---
A:	No, I wasn’t – I wasn’t at the table for the meals.
Q:	I understand.  Thank you.”
MR TOBIN:
Q:	“When you went upstairs to the manager’s office, who went up there with you if anyone?---
A:	Initially it was me and Terry.
Q:	Right?---
A:	I know that Tiffany did come upstairs to check on me as well, and another employee, but I can’t recall who it was.
Q:	Now, when you had this fall what shoes were you wearing?---
A:	They were black lace up shoes.
Q:	Right?---
A:	They were purchased just prior to employment, so three months earlier.
Q:	And those shoes had you worn them previous to this night?---
A:	Yes, every time I worked.
Q:	And did anyone comment to you about the shoes being inappropriate?---
A:	No.
Q:	And insofar as you told His Honour that when you stood up you could observe the skid mark and the liquid on the floor, had you seen that liquid prior to falling in it?---
A:	No.  I was looking for the table number, I wasn’t - I didn’t look at the floor.  I wasn’t expecting it to be wet.
Q:	And you’ve talked about it being able to be seen when you stood up and looked at the skid mark, what was the visibility of that area like generally in relation to seeing that type of liquid?---
A:	Sorry, could you repeat the question?
Q:	If in fact you were looking generally for that type of liquid how visible would it have been on that floor as you were walking along?---
A:	Yeah, no it’s very difficult to see on that floor, and also holding three plates, large plates, you can’t really see your feet.”
HIS HONOUR:
Q:	“I was just going to ask you about that before.  As I understand it, I think you’ve touched on this, that when you’re serving plates, and if - I know you’ve expressed you’re not certain but you think it was three.  You’ve got, what, one hung onto to either hand and the arms are extended to allow the third one, as it were, to rest on your forearm area; is that correct?---
A:	Yes, Your Honour.”
36	Later, when she went back to the hotel, on a return-to-work offer, the plaintiff was asked whether she noted anything in relation to the flooring outside of the bar, as to what was on the flooring area, to which the plaintiff answered “there were mats”.
(b)	The cross-examination of the Plaintiff
37	Under cross-examination, it was put to the plaintiff that clearly the tiles which had been photographed were the same tiles as eight years prior, when she suffered the fall.  It was suggested to the plaintiff that the tiles are not so slippery when wet, and they indeed were purpose-placed in the position they are, to which the plaintiff responded:
“With all due respect, if they weren’t slippery, I wouldn’t have witnessed people – so many people fall on them and it’s not just me, a lot of people know of people falling on them.”
38	The plaintiff was further cross-examined about her witnessing people falling on the tiles, and the following evidence was given:
Q:	“All right, well, perhaps we’ll touch on that.  You started at the Kealba on 10 April 2012?---
A:	Yes, Sir.
Q:	Three months before this injury?---
A:	Yes, Sir.
Q:	During that period, I think you worked, what, about two shifts a week?---
A:	Three or – three or four.
Q:	And during that period as your evidence has been you yourself observed people slipping?---
A:	I did, Sir.
Q:	And particularly slipping in the exact spot where you slipped?---
A:	No, I didn’t – well, I didn’t witness the one where his mother fell, he told me that and the two kids that I saw fall was from the opposite side, it wasn’t where I’d slipped.
Q:	I see.  So, you saw kids fall on the opposite side but on similar tiling?---
A:	Yes. 
Q:	You saw and you – sorry.  You heard a report from a man who said that his mother had nearly slipped in the vicinity of where you ended up slipping?---
A:	No, he said that she had slipped and he had caught her.
Q:	Right?---
A:	And he yelled at me about it but I didn’t witness him do that.
Q:	And I think you said that you were in the time when you’re working there appreciative that that drink fountain would lead to spills at or around the place where you fell?---
A:	Yes, Sir.”
39	In response to a question that she was well aware of the potential to slip on the tiles, the plaintiff responded that they were slippery, “but I didn’t expect for me to slip myself”.  She was holding plates, and was not looking at the floor but looking for a table number to deliver the food.
40	She disagreed with any suggestion that if she had taken on board her observations, her knowledge of the hazard which existed, she would not have slipped.
41	The plaintiff was also questioned that, given her evidence that although she saw a substance that she slipped on which she thought to be about 20 centimetres by 20 centimetres, she did not actually identify the liquid involved.  The plaintiff also confirmed again that such liquid was not coloured, and she did not know whether it was beer or bourbon or water, and even, she said, it could have been possibly a liquid-style ice cream, although she thought she would recognise that colour.
42	The plaintiff also confirmed that it was impossible to walk on the carpet area in the bistro where the tables were situated, and it was necessary to walk down the tiled floor parallel to the bar, and the actual incident took place about an hour-and-a-half after the shift started, to which the plaintiff stated, “Roughly, yes”.
43	The plaintiff accepted that she would have walked over the area many times at night prior to her fall, and she accepted that she did not notice anything prior to her fall when it occurred, despite walking over this area on numerous occasions.
44	In particular, the following evidence was given:
Q:	“But what you can say is that you didn’t observe any spillage there during any of those passings?---
A:	No, I didn’t see any spillage, sir.
Q:	And you simply don’t know how long that spill had been there for?---
A:	No, sir.
Q:	It was part of your job as a waitress, and indeed as a bar tender, to keep a lookout for spills and then to attend to their cleaning up; is that right?---
A:	Yes, I - yes, I - yes.
Q:	And indeed you’ve answered that in an interrogatory that was put to you, ‘Did your work duties involve cleaning up spills on the floor, and/or advising of the presence of spills on the floor?’ And your answer was, ‘Yes’?---
A:	Yes, when we were – when we were notified of spills and when we were asked.
Q:	And clearly if you had walked over a spill prior to your fall you would have cleaned it up, or advised someone of that spill?---
A:	Yes, sir.
Q:	And you would, from your appreciation, appreciate that other staff would do similar?---
A:	Yes, sir.”
45	The plaintiff gave evidence that she “vaguely” recalled undergoing an induction when she commenced work with the defendant.  The plaintiff was taken to a four‑page document which she accepted showed her signature on the last page.  The induction sets out various matters which contain boxes for ticks, and she accepted that part of the induction related to footwear, and she was told that she would have to wear black lace-up shoes, which she was wearing at the time.
46	In particular, it was suggested to her that part of the induction involved the risks of slipping, which were identified to her by the Kealba Hotel, to which the plaintiff responded:
A:	“They didn’t tell me, I was - they - I don’t recall it being mentioned. I saw it, that’s how I knew it was a risk.  I don’t remember someone telling me.
Q:	And regardless of someone telling you, you’re aware that slips can be a risk to injury?---
A:	Yes, sir.”
47	During cross-examination, the plaintiff was reminded of her earlier evidence-in-chief, that when she went back to the defendant’s hotel to attempt a return to work in April and September 2013, that she noticed that there were “mats” on the floor.  The following evidence thereafter ensued:
MR TOBIN: 
“She said there were mats in that area when she was working there, Your Honour, the mats inside.” 
WITNESS: 
“The mats inside when I was working there.” 
HIS HONOUR: 
Q:	“Just so we’re quite clear then, you say you observed when you were back there in April and September, mats on the area which you walked over and tripped in the previous year.  There are mats in that area now on the floor?---
A:	Yes, sir. 
MR STANLEY: 
Q:	“And that’s a pretty important recollection, because as you say, ‘Wow, the employer now has mats in the position where I fell’?---
A:	It was - - - 
Q	Do you agree with the sort of importance of your recollection on this matter?---
A:	I just recall seeing it, sir.  Like I – I didn’t – what was the question? 
Q:	You’re suing the Kealba Hotel for doing something wrong, for being negligent?---
A:	Yes, sir. 
Q:	And part of your case is – ‘Here’s the proof you were negligent, you put mats on an area where I fell’.  And it will be said that that indicates that the Kealba should have put mats before you fell and therefore avoided your fall.  You know the significance of that recollection in that case, don’t you?---
A:	So it’s good that they put them there. 
Q:	It’s good for your case?---
A:	Why? 
Q:	You’re not that naive, Ms Gartmann, I suggest.  You know that your case is one that in part says to the Kealba Hotel, ‘You’ve should’ve had mats on the day I fell’?---
A:	Well, it’s too late then, sir.  It’s just better because no one else will fall. 
Q:	I suggest that your recall of that matter about seeing the mats is a recall which is important and you would convey it to your solicitors at the very earliest opportunity?---
A:	Well, I don’t know when I conveyed it to them, sir, I just recall going. 
Q:	We’ve referred - your serious injury application started with an affidavit sworn by you in November 2017?---
A:	Yes. 
Q:	Within that affidavit at paragraph 7 you’ve said this, ‘I have been – I have also been told that approximately three weeks earlier there had been complaints made to the defendant about the slipperiness of the floor in the same area where I slipped and fell’.  And that’s a matter which you’ve spoken about in evidence?---
A:	Yes, sir. 
Q:	And to which back in November 2017 you likely told the person who was assisting you in typing the affidavit up, is that right?---
A:	Told them that someone had fallen?
Q:	Told them that you’d been told that the defendant had been – there’d been complaints that people have - - -?---
A:	That I complained myself.
Q:	Right?---
A:	Like, they were aware because of complaints, I had told the manager’s myself as well as everyone else. 
Q:	Well, let’s take the paragraph from the top, ‘Prior to my injury patrons at the hotel had complained to me that the floor was slippery’?---
A:	Mmm hmm. 
Q:	That’s true isn’t it, that’s what you’ve said to this court?---
A:	Yes, sir.  
Q:	I suggest that that’s what you likely told a barrister back in 2017 so that it then featured in your affidavit?---
A:	But I would’ve told them that before.  When I’ve been asked, I would’ve told them. 
Q:	Yes.  But how it got to your affidavit was you told someone, ‘Prior to my injury patrons of the hotel had complained to me that the floor was slippery’?---
A:	Yes, it was – it wasn’t just me, sir, lots of the staff there know. Everyone  – everyone – lots of people got complaints. 
Q:	All right.  All right.  You go on in this paragraph 7 it finishes with the sentence, ‘I have also been told that after my injury the defendant placed non-slip floor mats on the floor’?---
A:	Yes. 
Q:	Full stop.  I’ll read it again.  ‘I have also been told that after my injury the defendant placed non-slip floor mats on the floor’.  At no point in that affidavit do you identify you yourself seeing floor mats on the floor?---
A:	But I did, sir. 
Q:	I suggest that you have made that up in recent times, that in fact when you were considering the matter in 2017 you told the author as much as you could about the mats and that was that all you had been – all you knew about the mats was that you were told?---
A:	I wasn’t told, sir, I seen them.” 
HIS HONOUR: 
Q:	“Ms Gartmann, I understand what you’re saying but what’s being put to you is an affidavit which you swore back at around the time of the serious injury application and you’re saying there that you didn’t see them, you were told by someone that mats had been put there.  You understand that distinction?---
A:	I know but I - - -.”
MR TOBIN: 
Q:	“Your Honour – Your Honour, I object that as that distinction, the fact that she’s been told there’s non-slip mats were put there and that later she sees mats there is – the only comment can be made is you didn’t say that you also saw them there but the fact that she’s – what she’s saying she was told that they were put there after the fall.  And then she goes back eight months later and she sees mats there.  But what the affidavit says that somebody - - -?---
A:	I shouldn’t have said that - - - 
Q:	Told her that they’d done it and then when she went back there’s – there’s not an inconsistency - - -.”
HIS HONOUR:
“I think it might be, Mr Tobin.” 
MR TOBIN: 
“There might be but not the way Your Honour put it.” 
HIS HONOUR: 
Q:	“Well, Mr Tobin, the affidavit clearly was drawn at a time when she’d been back and well after this incident, six years – probably five or six years after this incident and in the affidavit the only reference to the mats is something she’s been told.  Are you suggesting she went back after the drawing of the affidavit and saw them?---
MR TOBIN: 
A:	“No, Your Honour, exactly the opposite.  She was told that the mats were put there as non slip mats.  And when she went back, she says she saw mats there. Now, the affidavit says ‘I was told they’d put non slip mats down’ because of her fall - - -.” 
HIS HONOUR: 
Q:	“And what - - -.”
MR TOBIN: 
A:	“They question may be – but what Your Honour put, there’s an inconsistency – there’s not. It may be an omission, but not an inconsistency. 
WITNESS: 
A:	“I should’ve said that I saw them and was told.  I understand – I know I should’ve said that.” 
MR STANLEY: 
Q:	“Ms Gartmann, I suggest that the topic of mats on the floor was discussed between you and perhaps the barrister who was formulating this affidavit, and that if indeed you told the barrister that ‘I saw the mats’, it would’ve been included in your affidavit?---
A:	I’m sorry, it wasn’t. 
Q:	And that the truth is, you’ve never seen mats on the floor?---
A:	Yes, I have.
Q:	The highest you can put it is as you put it in that affidavit, that you’d been told?---
A:	I’ve seen them as well, sir.  My own eyes. 
Q:	You were given this affidavit – and I can show you a copy if you want – but you signed each page and you swear at the conclusion that it’s true and correct – why would you not - - -?---
A:	I don’t know why I didn’t - - - 
Q:	- - - say ‘Hold it, I’ll also put there that I’ve been told and seen’?---
A:	I don’t know why I didn’t do that, sir.”
(c)	The evidence-in-chief of Tiffany LaRocca 
48	Ms Tiffany LaRocca gave evidence, describing her occupation as a gym manager, and was on the verge of resuming work after COVID problems.  Her evidence was interposed during the cross-examination of the plaintiff.  Her evidence related to both the issues of liability and quantum.  I will refer to all of her evidence, given that such evidence traverses both liability and quantum issues.
49	Ms LaRocca gave evidence that she is aged twenty-eight years old and that she had known the plaintiff since early high school at the Ave Maria College, during which time they became “good friends” and have remained friends to the present day.  They both completed Year 12 together in 2010.  Back in those days, she observed the plaintiff to be a “very fun, positive, outgoing girl … very fit and healthy … very social”.
50	Furthermore, Ms LaRocca described the plaintiff as being very fit and healthy, exercising frequently, and in particular, she was seen jogging around Maribyrnong, and playing volley ball and tennis.  She was popular at school and had many friends, and was very outgoing, and, accordingly, very sociable.
51	In particular, she had no apparent physical or psychological problems when she left school, and she had a desire to become a journalist, following various placements at Channel 7 News.
52	Ms LaRocca gave evidence that in or about 2011, she saw less of the plaintiff, as they had a falling out.  They later reunited at a party which occurred prior to either Ms LaRocca or the plaintiff commencing work at the Kealba Hotel.
53	Ms LaRocca confirmed that she commenced work at the Kealba Hotel in the middle of 2012.  After they reunited, she considered the plaintiff to be her old social self, and she did not notice any restrictions of a physical or psychological nature in those first six months of 2012, although she had been unaware the plaintiff had suffered glandular fever during 2011.
54	Ms LaRocca was employed at the Kealba Hotel for about a year and was present at the hotel on Friday, 13 July 2012, when the plaintiff suffered her fall.  At that time, she was bartending, so working behind the bar.  She believes she commenced work about 5.00pm, being the evening shift.
55	Ms LaRocca was shown the photograph previously shown to the plaintiff.  Ms LaRocca identified the Kealba Hotel bistro area.  Part of that photograph was showing the island bar in the bistro area.  She confirmed that she was working behind that bar on that night.
56	Ms LaRocca gave evidence that she observed the plaintiff to be “in a lot of pain”, and she was “holding on to her shoulder and crouching over”.  Ms LaRocca described that the plaintiff was then taken upstairs by one of the managers, Terri, and she also went up, but did not stay long at that stage as she was sent back to finish her shift.  When her shift became a “bit quieter”, she was allowed to go and check on the plaintiff again and she found the plaintiff in the manager’s room sitting on a chair with an icepack on her shoulder, talking to the manager, Terri.  In particular, Ms LaRocca gave the following evidence:
Q:	“And how was she in your observations?---
A:	She was not well.  Like she just wasn’t normal.
Q:	When you say she wasn’t normal, was she in pain?---
A:	Appeared to be like she was in pain.
Q:	Okay.  And just describe her demeanour and her mannerisms when you were up there with her?---
A:	She was crying, she was like – just like – yes, I can’t – I don’t know how to explain mannerisms, sorry.
Q:	How long did you stay up with her?---
A:	Just for a couple of minutes because I had to finish my shift.
Q:	And you said she had an ice pack?---
A:	Yes.
Q:	What was she doing with the ice pack?---
A:	Putting it on the shoulder, holding it.”
HIS HONOUR:
Q:	“What shoulder was it, Ms La Rocca?---
A:	Her left shoulder.
Thank you.”
MR COLDWELL:
Q:	“What happened then?  Did Luzinda go back to work or what did she do afterwards as far as you’re aware?---
A:	No, she left work early that night.
Q:	Do you know how she left work?---
A:	Not too sure how she got home.
Q:	And did you keep working?---
A:	Yes, I finished my shift.
Q:	And if you were doing the evening shift or the dinner shift that evening do you know what time you ceased work that night or the shift finished?---
A:	It would’ve been around 10.30 or 11.00.
Q:	Okay.  And after you’d finished your shift what did you do then?---
A:	Afterwards I went to Luzinda’s house to check up on her.”
57	Ms LaRocca was again referred to the photographs to which reference has already been made, and in particular, she was referred to what were called “tiles” immediately in front of the bar to which reference has been made.  The following evidence ensued:
Q:  	“There seems to be some light reflecting off them, perhaps the camera.  Are they the tiles, as best you can remember, that were there in 2012 while you were working at the Kealba Hotel?---
A:	Yes, they look the same.
Q:	And from time to time did you do waitressing and bar duties in that vicinity?---
A:	Yes, I did.
Q:	And did you walk along those tiles at various times?---
A:	Yes, multiple times.
Q:	And did you observe patrons of the hotel walking up and down those tiles whilst you were working there?---
A:	Yes, all the time.
Q:	Do you have a view about those tiles from your own observations and experience as to whether or not they were slippery?---
A:	Yes, I do and they were very – not appropriate tiles.
Q:	Well, let’s not talk – won’t use the word appropriate, just in relation to the tile surface and your personal experience of walking on those tiles, what were they like to walk on?---
A:	They were a bit slippery.
Q:	And are you describing the tiles as they are with or without liquid on them?---
A:	So, without liquid.
Q:	Yes how were they without liquid?---
A:	They were still a bit like slippery.
Q:	And did you ever have experiences where there was liquid on those tiles whilst you were working?---
A:	Yes, multiple times.
Q:	And did that affect the slipperiness of the tiles in your experience?---
A:	Yes, more prone.
Q:	When you say more prone, are you saying that it made the tiles more slippery if they were wet?---
A:	Yes.
Q:	How often whilst you were working there did you observe the tiles becoming wet?---
A:	Throughout the duration of the time I was working there it was consistently happening.
Q:	And were there any particular reasons that you were aware of that that tiled surface was becoming wet whilst you were working there?---
A:	Yes, so two reasons.  One because patrons would order drinks from there, and as they were walking away would spill a lot of their drinks that they’re holding.  And also we had a leaking water fountain that was in the corner of bar.
Q:	When you say a leaking water fountain, first of all, is it possible to demonstrate on that photograph where that fountain was located?---
A:	Yeah, so there was one - so, facing the camera, far end towards like the corner of that bar, so where that mouse is right there.
Q:	Yes?---
A:	Yes, it - it was placed there.
Q:	And when you say it was leaking, what do you mean by that?---
A:	It would sometimes be overfilled with water, the - so we didn’t have to refill it.  And then the bottom of the tray, whenever it used to get too full because people used to pour their own drinks, it used to tip out from the sides, so - - -
Q:	And what if anything was done about it when the - when that fountain or drink dispenser leaked onto that tiled floor?---
A:	If we seen (sic) it happen we would have to just mop it up, clean it up.
Q:	Yes?---
A:	But if we didn’t see it happen, nothing was really done.
Q:	Okay.  Had you actually slipped yourself on those tiles whilst you’d been working there?---
A:	Yes, I have.
Q:	In the time you were there, is it possible to estimate how many times you slipped on those tiles, in the photo we’re shown?---
A:	I’ll just say multiple times because I was there for a long time.
Q:	Yes, when you say multiple times, are we talking two or three, five or six, more?---
A:	More.
Q:	Well, what’s your best estimate based on your - your experience, or your recollection of slipping on those tiles?---
A:	15 times.”
HIS HONOUR:
Q:	“I’ll just ask you, Ms La Rocca, when - you started there, you believe, when?---
A:	I believe it was in the middle of a year, like the middle of the year.
Q:	Middle of the year.  Well, perhaps can I put it another way, how long do you think you’d been working there when your friend fell over?---
A:	Probably a month or so.
Q:	And in that month leading up to the fall were you working behind the bar on occasion, as you described?---
A:	It would be more - I would be more waitressing.
Q:	I understand that?---
A:	Yeah.
Q:	But behind the bar sometimes?---
A:	Yes.
Q:	And waitressing, but you say waitressing more often than behind the bar?---
A:	Yes.
Q:	And when you describe the number you’re estimating of the slips you saw, were they slips over the period of your employment in about a year?---
A:	Yes.”
MR COLDWELL:
Q:	“The slips that you’re describing to His Honour, did they occur before Ms Gartmann’s accident, after Ms Gartmann’s accident or a combination of both?---
A:	Combination of both.
Q:	Had you whilst you were working either as a waitress or a barman in that area observed any of the patrons at the hotel slip?---
A:	Yes, I have – had.
Q:	And on how many occasions observed patrons slipping in that area approximately?---
A:	Is this for the duration of the time I was there?
Q:	Yes.  And then – then after – yes.  During the duration?---
A:	Yes, a lot of – like a lot times.  Like there was a lot of complaints.
Q:	Well, I just want to – you to break that down.  Did you actually physically observe people slipping yourself?---
A:	A couple of times, yes.
Q:	And did you actually – did you also receive complaints from people that had told you that they had slipped?---
A:	Yes.
Q:	And how frequent were those complaints and the observations of patrons slipping?---
A:	There was always and issue every time I worked.
Q:	When you say there was always an issue, are you saying that it was – it occurred most shifts that you worked?---
A:	Yes.”
HIS HONOUR:
“Sorry, Mr Coldwell, I just want to understand that.  
Q:	By that are you saying that most shifts you worked you received complaints about falls and or say falls?---
A:	Yes, it would be a combination of both of what I can recall.”
MR COLDWELL:
Q:	“Did you pass on those complaints and your observations to the hotel?---
A:	Yes.
Q:	To your bosses?---
A:	Yes, to my managers.
Q:	Do you recall speaking to anybody in particular about complaints of slipping on those tiles?---
A:	Yes.  To one of the managers, I remember his name was Sam.
Q:	Okay.  And what did he say when you – first of all I’ll ask you how many times do you recall complaining, sorry, passing on those complaints to Sam?---
A:	Like, six times.  Like I have complained to him a lot.
Q:	Okay.  And did Sam say anything back to you after you’d made those reports to him?---
A:	Yes, he told me just to clean up any spills on the ground.”
58	Ms LaRocca gave evidence that she finished her shift around 10.30pm or 11.00pm and afterwards drove to the plaintiff’s house to check up on her.  On arriving at the house, she went in and stayed the night with the plaintiff, sleeping next to her in her bed.  She believes she obtained a little bit of sleep, but was woken up by the plaintiff pretty early the next morning, because she “wanted to be taken to a doctor”.  She believed that time was about “sevenish, 7.30”.
59	Ms LaRocca gave evidence that she then drove the plaintiff to the closest medical clinic, which was the medical clinic, “Medical One”, at Taylors Lakes, and thereafter gave the following evidence:
Q:	“Okay. And you say you drove there.  What happened when you got  there?---
A:	So, when we approached the clinic we were waiting for like someone to go into the clinic and we saw a man - - -
Q:	Just if I can stop you there.  When you - you say you were waiting for someone.  Was somebody already there when you arrived?---
A:	As we approached and I parked, someone then answered, like was at the front of the clinic. 
Q:	And when you say someone, can you describe that person?---
A:	He looked like a professional that worked in the clinic, so was - - - 
Q:	Was it a male or a female?---
A:	It was a male.
Q:	And can you describe him as to how old he looked and what his appearance was like?---
A:	He was like an older man, around his 40s or - older man back then. And his appearance, he - just looked like a Caucasian Aussie. 
Q:	Okay.  And did you say anything to the man?---
A:	No, I didn’t. 
Q:	Did Luzinda say anything to the man?---
A:	She did. 
Q:	Did you hear what she said to him?---
A:	Unfortunately no. 
Q:	What then happened?---
A:	And then we got taken - taken into the clinic, to a room. 
Q:	Yes?---
A:	Where he put Luzinda on a bed or I don’t know what that thing was, and he was just examining her, like left arm, while he got me to sit on the right arm - arm, like on the right side of her. 
Q:	Sorry.  Sorry, just slow down.  He got you to sit on the right-hand side of her?---
A:	Yes. 
Q:	And do you know why he did that?---
A:	To grab her arm, but I’m not too sure why.
Q:	Okay, and so what arm did you - did you grab her arm?---
A:	The right, her right side.
Q:	And I’ll just ask you, did you grab her right side?---
A:	Yes.
Q:	And what did the gentleman do that was inside the clinic with you?---
A:	He was examining and doing something to her, like - to her.
Q:	And what part, if any, was he examining and what - what was he examining as far as you could see?---
A:	He was examining her shoulder, where she was complaining about.
Q:	And was that the left or the right shoulder?---
A:	Left.
Q:	After he had done that do you remember him doing anything else in relation to Luzinda and her arm?---
A:	So, he gave her a sling.  He gave her a sling to leave with. 
Q:	When you say a sling, can you describe what you mean by a sling?---
A:	So, those - those slings, it’s like a white - it looked like a white - you know those white bandage things that go around the arm, and up - - - 
Q:	Okay?--- - - - 
A:	(indistinct) hold it into place.
Q:	And do you recall any other discussion that was going on between Luzinda and the man at that stage?---
A:	There was a discussion going on, but I don’t recall what they were saying. 
Q:	Okay.”
HIS HONOUR: 
Q:	“Just where you said a sling, I understand that wrapped around the arm, but did it extend around the neck, like was it someone holding their arm right in the front, or how was it?---
A:	It was - so it was positioned like this, I can’t - I can’t remember if it went round the neck or - I’m guessing around the neck because it would have - how it held. So, he made her leave with one of the - those white - is it called a sling or a bandage, I’m not too sure.” 
MR COLDWELL: 
“Well, yes - - -.”
HIS HONOUR: 
Q:	“Probably went round the next (sic) but you’re not sure?---
A:	No, no, yes, she did have something but I’m not sure if it’s called a sling or a bandage. 
I see, thank you.” 
MR COLDWELL: 
Q:	“Okay.  And what happened after that, Ms La Rocca?---
A:	Then we – I took her back home. 
Q:	Yes.  Did you – did you just drop her off or did you go inside with her, do you remember?---
A:	Yes.  I stayed with her just for a little bit just to make sure she was okay and then after that I went home.
Q:	Okay.  And how much – how long approximately did you spend with Luzinda that morning from when she woke you up until when you left her house in the morning that day?---
A:	I feel like it was about an hour or so.”
60	Ms LaRocca also gave evidence that she has kept in contact with the plaintiff since the incident in 2012 and would catch up with her “once every couple of months”.  She was aware that the plaintiff was now doing some part-time work with The Les Twentyman Foundation.
61	Ms LaRocca was then asked about her observations of the plaintiff since the incident.  Ms LaRocca gave evidence that she had noticed physical changes in the plaintiff since the incident, in that she was incapable of doing “just simple tasks … Things just like opening doors, opening jars, even driving, she uses something on her wheel.”
62	Furthermore, Ms LaRocca gave evidence that the plaintiff has told her she is in pain and, indeed, Ms LaRocca gave evidence that she observed signs of the pain by the way the plaintiff acts and how she is incapable of having fun, as she did in the past.  Ms LaRocca gave evidence that when the plaintiff complained of pain, it involved “her whole left side, upper body” and, in particular, when asked about any observations of her left-hand side upper body since the incident, the following evidence was given:
A:	“Yes.  It - like occasionally when I’m with her it jolts, I don’t know if - what that is, but it jolts. 
Q:	Okay, when you say it jolts, is that something that you observe yourself, or is that something that Luzinda points out to you, or both?---
A:	No, I observe it, and then she’ll explain to me why it’s happening. 
Q:	And what does she explain to you?---
A:	She’s just explaining to me the reason why it’s happening, like - sorry, I don’t understand the question. 
Q:	I was just saying you observe it, and then she said - she explains what’s going on?---
A:	Yes. 
Q:	Have you noticed any other problems in relation to her left arm, in your observation?---
A:	No, not my observation. 
Q:	What about things like exercise.  You used to - you said that you used to go for runs with Luzinda along the Maribyrnong?---
A:	M’mm. 
Q:	Have you done any running with Luzinda since her accident?---
A:	No, haven’t done any exercise with her at all.
Q:	And you’re someone that likes to exercise, being a gym manager?---
A:	Yes.
Q:	Have you observed Luzinda playing any sport since her accident?---
A:	No, I haven’t.”
63	Ms LaRocca also gave evidence that she has observed the plaintiff taking medication, involving multiple different pills.  She also recalled that the plaintiff had some issues with “Endone” and that when she was taking this medication she was “just acting very weird and odd”.
64	Ms LaRocca gave evidence that, during this period, she was aware that mutual friends and other people were commenting on the medication situation and that, when she went to rehabilitation, people really “started to really look down upon her” and that she started to get a “really bad reputation from a lot of people I knew”.  Ms LaRocca said these comments got back to the plaintiff and “it ruined her reputation” and that she was “devastated”.
65	Ms LaRocca also gave evidence that it was her observation that the psychological state of the plaintiff has changed “a lot” since the incident, and when asked to describe these changes, she stated:
“Yes, so she’s very – like she can’t put sentences together, she can’t have a proper communication – like she can’t communicate properly, she’s got a lot of anxiety, she doesn’t make sense sometimes, she’s very anti-social as well.”
66	Ms LaRocca commented that she does not go out as much as she used to and, furthermore, Ms LaRocca was not aware of any relationships that the plaintiff has had in recent years.
67	When queried about the plaintiff working with The Les Twentyman Foundation, Ms LaRocca commented that that has “helped a bit with her just having some direction in her life.  For the future.”  But, according to Ms LaRocca, she still had ongoing physical problems, which she observed and psychological problems that she could observe.  Ms LaRocca was shown a photograph of the plaintiff from a Facebook account that was taken on 14 July 2012 (the day after the incident), which showed the plaintiff wearing some sort of garment over her shoulder.  When queried, Ms LaRocca said that the white garment over the shoulder looked like the sling that she saw the plaintiff wearing when attending the medical clinic early on the morning of 14 July 2012.  That photograph was tendered and marked as exhibit 4.
(d)	The cross-examination of Ms LaRocca
68	It was put to Ms LaRocca by Junior Counsel for the defendant that she appreciated that one of the reasons she was requested to give evidence in the Court case was to say that the tiles were slippery, to which the witness responded:
“I was requested to give evidence because I was there while this incident happened.”
69	Ms LaRocca also confirmed that when she referred to observations of people slipping on “those tiles”, the tiles to which she was referring were around the island bar.  The witness also accepted that she would have walked on those tiles “many, many times per shift”.  She never fell, but she did add “I almost”.  
70	Although challenged as to her evidence about what she observed in terms of falls and complaints made to her, Ms LaRocca confirmed that she commenced work at the Kealba Hotel about a month prior to the plaintiff suffering her fall.  In response to a question from the Court, the plaintiff was asked, as best she could, to see how many falls or slips there were in that first month or so prior to the slip of the plaintiff, the following evidence was given:
“So the first month?  Probably because I was still a bit new to it, I just remember hearing a complaint about it.  I remember hearing a complaint about it from someone – that was a patron, so someone that told the manager while I was at the front trying to grab food.”
71	Ms LaRocca gave evidence that she did not take the photograph depicted in exhibit 4 and also stated that the vehicle in which the plaintiff was sitting was not her car – the car that she drove to the clinic on the morning of 14 July 2012.
72	Ms LaRocca, when queried, said she was not “too sure” whether the photograph of the plaintiff was taken on 14 July 2012.  Ms LaRocca also gave evidence that, although she recalls on the morning of 14 July 2012, she passed clothes to the plaintiff, she did not actively assist her in putting clothes on.  Ms LaRocca also said she “was not too sure” whether the person who attended her in the early hours of 14 July 2012 was a “doctor she previously attended or not”.  Furthermore, she could not recall whether the person attending the plaintiff made any notes and she confirmed she did not hear any conversation between that person and the plaintiff.  When pressed about not hearing anything of her sitting on the right side of the plaintiff, Ms LaRocca stated that she heard them – the plaintiff and the person – “speak”, but she was “not sure what that conversation was”.  In particular, the following evidence was given:
Q:	“So, it – you heard – you would have heard all of their conversations but just as you sit here today, you’re unable to recall what it is was said by either of them?---
A:	Yes.
Q:	In terms of your assistance you sat next to Ms Gartmann?---
A:	Yes.
Q:	And you took her right hand as I understand it or right arm?---
A:	Yes. 
Q:	And your evidence was that the doctor was examining her left shoulder at this time?---
A:	Yes. 
Q:	How long did this process take of you sitting next to her and this – the doctor performing whatever he was doing to the left shoulder?  How long did that process take?---
A:	Are you talking about the process in the actual room?
Q:	Yes.  Just the time when you were asked to hold Ms Gartmann’s right – was it her hand or what did you hold?---
A:	Her right  arm. 
Q:	And did you hold the hand, the arm, the elbow, how did you hold it?---
A:	I just was holding it like so, on this side, but like (indistinct).
Q:	And how long did you hold it for?---
A:	I’m gonna say approximately 15 minutes, what I can recall. 
Q:	And all of that 15 minute time was the doctor doing - what was the doctor doing?---
A:	Just what I can recall was examining, going over the shoulder, looking, asking her questions, and so forth. 
Q:	Did you see him perform any particular movements?---
A:	Yes, but I won’t be able to explain exactly what movements they are.
Q:	Well, why don’t you do the best you can.  What did you see?---
A:	Just seen him hovering over her shoulder, moving his hands.” 
HIS HONOUR:
Q:	Did the plaintiff, Ms Gartmann, did she have to remove any of her clothing during the examination?---
A:	I can’t recall.
Yes, thank you.”
MR CLARKE:
Q:	“Was there any particular event in terms of - at any point in time did Ms Gartmann scream out in pain, or was there anything in particular about that consultation you recall?---
A:	There was like noises coming from her, but I can’t recall exactly what. 
Q:	What do you mean, noises?---
A:	So, when he was - like if he - when he touched it, I remember noises, but I don’t know what noises were coming out of her mouth. 
Q:	You don’t know whether they were words or other noises?---
A:	No, I can’t recall what they were.  
Q:	And what did this - was the doctor tall?---
A:	From what I remember he seemed tall because I was a lot younger back then, so I’m gonna say yes.”
73	Ms LaRocca was also questioned as to whether it was her vehicle shown in exhibit 4.  Although agreeing that her vehicle did have black leather seats, and clearly depicting the plaintiff in a sling, Ms LaRocca could not “guarantee” that it was or was not her car.  
74	Ms LaRocca also gave evidence that she held the right arm of the plaintiff for approximately fifteen minutes at the “doctor’s instructions”, but she was “not too sure why”.  Ms LaRocca could not say, or could not remember, whether the plaintiff had to pay at the end of the meeting with the person that morning, and other than saying that the “doctor” gave something to the plaintiff, she did not know whether that was a prescription or just a form.  Ms LaRocca also said that she had seen the right arm of the plaintiff “jolt”, and over the period of time since the accident, she believes she has seen that happen four or five times, and the last time that may have happened was, she thought, “guessing”, about six or seven months prior to the hearing.  
Determination of the issue of liability
75	I have already recorded that there is no issue that the plaintiff slipped and fell during the course of her employment with the defendant on 13 July 2012.  The issue in dispute is whether the plaintiff has discharged her onus in establishing that the defendant has breached its duty of care by failing to provide a safe place for work.
76	In relation to the issue of liability, I make the following findings:
(a)	The plaintiff was employed by the defendant from approximately 10 April 2012 to 13 July 2012 (the date of the incident), in the capacity of a part-time waitress/bar attendant.  The plaintiff would work three to four shifts per week;
(b)	On 13 July 2012, the plaintiff commenced work at the defendant’s premises, and in particular, in the bistro dining room, initially performing bar-attendant duties, but later performing duties as a waitress to serve patrons seated in the bistro dining area;
(c)	The bistro dining area provided plated food to the patrons who were sitting at tables on carpeted areas around the bistro area.  The bistro was large and thought to have the capacity to hold two hundred to three hundred people.  On the evening of the incident, the bistro dining room was “busy”;
(d)	I refer to exhibit 6 and, in particular, the photographs situated on pages 328-338 of the Plaintiff’s Amended Court Book.  In particular, the plaintiff was initially shown the photograph situated at page 328 of the Plaintiff’s Amended Court Book, and gave evidence that the photograph depicted an “island bar” within the bistro dining area, from which drinks could be served within the bar to patrons who approached that particular bar.  This was not occurring that night, but had occurred on approximately two occasions prior to that night, when the bar was “extremely busy”;
(e)	The plaintiff also identified the floor tiling running adjacent to the island bar and, in particular, described the floor tiling consisting of tiles which were approximately 50 to 60 centimetres in width, and which were “shiny black” and “very dark” at night time.  The plaintiff also identified the carpet area to the right of the tiled flooring, and on which various tables and chairs would be set up for patrons to be seated and served their meals;
(f)	When a waitress, such as the plaintiff, was required to serve a meal, it was necessary to go along the tiled area, as it was impossible to move onto the carpeted area, because that was where the tables and chairs were situated;
(g)	At the end of the bar, there was a large water tank, which the waitresses would continually fill up with ice.  Such tank did leak often, causing spillages on the floor, so it was necessary to put towels under it.  This was done on a regular basis.  The water tank was accessed by people who wanted to get iced water.  This was also available to children, who would also use the water tank and “play with it”;
(h)	Other than the towels referred to near the water tank, there was no other covering on the tiled floor at the time of the incident.  The plaintiff was also referred to the photograph situated at page 336 of the Plaintiff’s Amended Court Book, which the plaintiff identified the photograph to depict the “serving” side of the island bar.  The plaintiff gave evidence that the tiling within the island bar was different to that on the outside of the island bar, in that there were “rubber mats” on the tiling within the island bar;
(i)	Approximately one week prior to the incident, the plaintiff was approached by a male who was very angry, complaining that his mother had slipped on the tiling, and luckily he was able to catch her before falling onto the ground.  The plaintiff reported this incident to her manager, Terri, as Terri was aware she was being yelled at by the male;
(j)	There was also a sighting of two children falling in the three months of her work leading up to 13 July 2012.  Such incidents were described to have occurred on the tiling, but near the water tank on the opposite side to what was depicted in the photograph;
(k)	Immediately prior to the incident, the plaintiff was walking along the tiled area in the bistro dining room, carrying two or three quite large and heavy dinner plates, looking for a table number, intending to serve those meals to patrons seated in the bistro;
(l)	When walking along such tiled area, the plaintiff slipped ꟷ not knowing at that time why she slipped – but felt the sensation of going backwards, and then forwards, trying to save herself.  She had virtually reached the table which was at the far end of the bar, but had not left the tiled area;
(m)	The fall made quite a lot of noise and she was ultimately helped to her feet by a patron, who was one of the patrons sitting at the table where the plates had to be delivered, and also by her friend, Ms LaRocca, who was also working there;
(n)	After getting up from her fall, the plaintiff noted a liquid spillage of about 20 centimetres by 20 centimetres, through which could be seen foot-slide marks of approximately 16 centimetres long;
(o)	The plaintiff did not know what the liquid was, as the tiles were “pretty dark”, but it appeared to be “clearish”;
(p)	When the plaintiff’s supervisor approached her at the place where the incident occurred, and enquired of the plaintiff what had happened, the plaintiff told her she had slipped, and showed her where she slipped, which was “clearly visible”.  The plaintiff did not see the spillage prior to her slip and did not know how long the spillage had been there;
(q)	The plaintiff accepted that part of her duties as a waitress and/or bartender was to keep a lookout for spills and then to attend to the cleaning up of those spills;
(r)	The plaintiff was wearing black lace-up shoes, which was the shoe nominated to be worn by the defendant.
77	The plaintiff, under cross-examination, denied, when it was suggested to her, that part of her induction involved the risks of slipping, but accepted the general proposition that slips can be a risk to injury.
78	Ms LaRocca gave evidence in relation to the photograph situated at page 328 of the Plaintiff’s Amended Court Book (the one shown to the plaintiff earlier), that the tiled area was slippery, even without liquid.  She gave evidence that, during the period of time there, including the relatively short period of time she was there prior to the incident, she saw a variety of people slipping on the floor.  Ms LaRocca did not actually see the plaintiff fall but attended to her very shortly thereafter.
79	It is trite law that the defendant, being the employer of the plaintiff at the time of the incident, owed her a duty of care to provide a safe place of employment.  It is for the plaintiff to establish, as a matter of probability, that the defendant breached that duty, and ultimately establish that such breach was a cause of the various injuries claimed by her. 
80	The basis of the findings made in relation to liability is essentially the evidence of the plaintiff and, to some extent, from Ms LaRocca.  For reasons which I will advance later in this judgment when I turn to issues of quantum, I have come to the view, based on all of the evidence, that she is not always a reliable witness and, indeed, on occasion, lacked credit.  
81	However, in relation to the circumstances of liability, there is some corroboration by Ms LaRocca in relation to the slipperiness of the tiled floors and perhaps, far more importantly, no evidence was called by the defendant in relation to any of these issues – in particular, the slipperiness of the floors which the plaintiff had to traverse to serve meals, any denial in relation to reports of slipping on the tiled floors and, indeed, and perhaps more significantly, any denial by the defendant, that a representative of the defendant – the supervisor, Terri – attended the site of the fall and was directed by the plaintiff to the substance on the floor.  If such evidence had been available, one would expect her to have been called.  It is also admitted by the defendant that there was CCTV footage available at the premises at the time of the fall.
82	In response, the defendant made the following submissions in relation to liability:
(a)	The plaintiff did not adduce any expert evidence with respect to the tiles and, accordingly, there is no “expert evidence” of any shortcomings in the design or make, and no evidence upon which the Court can conclude they were in some way inappropriate.  Although accepting that clearly no expert evidence was called in relation to this issue, there was ample evidence, if accepted, the tiles were slippery, and particularly so when liquid was on the tiles.  I consider that a reasonable inference can be drawn, based on the evidence of slip incidents prior to the incident, that it was reasonably foreseeable that the cause of such slips and falls were the tiles, particularly with liquid spillages;
(b)	It is further submitted that the plaintiff accepted the defendant had a system of work in place, whereby waitresses and other staff were to keep a lookout for spills and identify to clean them up.  Again, as far as it goes, this submission is correct but, also, it must be borne in mind that the primary duty of the waitress serving food is to carry two or more plates, as was the plaintiff in the night in question, attempting to identify where the appropriate table for delivery was and being forced to walk along the tiled area, with little or no ability to inspect the area over which she was traversing to perform her work;  
(c)	There can be no argument that there was a lack of proper lookout on the part of the plaintiff and, indeed, I stress, again, there is no evidence, other than what the plaintiff said, as to any system of cleaning or roving cleaning that the defendant had in place at the time of the incident.
83	I also refer to the evidence of the plaintiff that she saw mats on part of the tiled floor on which the waitresses had to walk on one of the occasions when she attempted to return to work.  There was cross-examination of the plaintiff based on an affidavit used in her serious injury application, that she was told about the mats, rather than actually seeing them.
84	The defendant submits, correctly, that Ms LaRocca did not give evidence about the mats, notwithstanding that, on her evidence, she commenced employment with the defendant in the middle of 2012, and remained employed at the hotel for approximately one year, and thereafter attended the hotel on a number of occasions following the cessation of her employment with the defendant.
85	Given that, it would appear that Ms LaRocca was working at the hotel, at least at the time the plaintiff first attempted to return to work (April 2013), and is likely to have attended on occasions around that time, or shortly prior to the plaintiff’s second attempt to return to work in September 2013.  Ms LaRocca was not asked any questions in evidence-in-chief with respect to whether mats were installed and/or used by the defendant on the tiled flooring around the bar subsequent to the incident. 
86	There is some force in the submission that one would expect Ms LaRocca, in her evidence-in-chief, to give evidence about mats if mats were introduced by the defendant after the incident.  However, again, it is to be stressed that the defendant could have called evidence on a simple issue as to whether mats had been introduced at the hotel in the way suggested by the plaintiff, or not.  It was never put to the plaintiff that no mats had been put in the area where she suggested.
87	I should add, that those acting for the defendant, submitted that the photos which had been shown both to the plaintiff and to Ms LaRocca during the course of the trial, were taken relatively recently, and those photos do not show any matting over the area on which the plaintiff was walking immediately prior to the incident.  Such may well be inconsistent with what the plaintiff asserted.  Of course, there may be a variety of reasons for such situation – mats only laid down at night time, mats were put in at one stage, but had been removed, either permanently or temporarily, or, indeed, the photographs faithfully represented the situation that no mats were laid in that area.  
88	In any event, even if one accepts that the tiles were slippery, or certainly slippery with liquid leakages, a reasonable response on the part of the defendant to reduce or eradicate such a foreseeable risk, would have been to place rubber non-slip mats to reduce the risk of slipping when waitresses and others traverse the tiled floor in the bistro dining room.
89	Ultimately, with some reservation, I accept the evidence of the plaintiff, that mats were introduced, although it is unclear when that occurred.
90	After a consideration of all of the evidence, I am satisfied, as a matter of probability, that the plaintiff has established that the defendant breached its duty by not providing a safe place of employment.  The defendant knew, or should have known, that the tiles were slippery and, more particularly, became slippery when wet, by reason of:
(a)	the complaints made by various patrons prior to the incident; and
(b)	having been advised by the plaintiff on at least one occasion (to her supervisor, Terri) about a near-slipping incident and, indeed, by LaRocca; and
(c)	the nature of the tiles.
91	I consider it was reasonably foreseeable there would be spillages in the area and, indeed, this is made plain by the observations of the plaintiff and Ms LaRocca.
92	The defendant, rightly in my view, made no submissions in relation to contributory negligence, as the plaintiff was wearing appropriate footwear, and there was no evidence to make a finding of her failing to keep a proper lookout.
93	Accordingly, I find for the plaintiff on the issue of liability with no contributory negligence.
Quantum
94	Having found for the plaintiff on the issue of liability, I now turn to the issue of quantum.  I intend to set out the plaintiff’s evidence as to the state of her health after the incident, the medical and other treatment undertaken by her, and details of what work she has undertaken since the incident.  
95	Furthermore, before I set out some aspects of the cross-examination of the plaintiff, I consider it appropriate to set out various opinions from treating doctors and other health professionals, together with details of the various medico-legal opinions expressed by either party.  It is to be noted that, save for one doctor, all reports of both treating and medico-legal specialists were tendered, and none of those doctors were subjected to cross-examination.  The doctor who was called and cross-examined was the consultant occupational physician, Dr David Barton, who examined the plaintiff on 1 February 2018 and 6 February 2020.  I also note that the physiotherapist, Mr Stephen Craig Phillips, was also called to give evidence to speak to the clinical notes of the physiotherapy practice dealing with the consultations that the plaintiff had with various physiotherapists in that practice.
96	I will also refer to various witnesses who can be described as perhaps “before and after” witnesses, giving descriptions as to the state of health of the plaintiff prior to the incident, compared to what those people had observed since the incident.
(a)	The evidence-in-chief of the Plaintiff 
97	The plaintiff gave evidence that, after going upstairs at the premises with Terri, the manager, she was given an icepack, consisting of an ice-filled tea towel which was placed on her left shoulder.
98	The plaintiff gave evidence that initially she felt “pain in [her] neck and left shoulder” and considered that the adrenalin was wearing off and that the pain was becoming “more intense” in her left shoulder.
99	After Terri left, the pain continued to get worse, and she was offered no medication or, indeed, took no medication at that time.  The plaintiff called her mother, explaining what had happened, telling her she was in pain and was concerned she had not been offered a ride home (she drove her own car to the premises earlier), and had been asked to return to work.
100	Her mother told the plaintiff to speak to Terri and tell her she was coming home, and ultimately her friend, Lauren, drove her home.  While waiting for Lauren to arrive, the plaintiff noted that the pain was “quite significantly sore” and she had not experienced pain of that magnitude in the past.  The trip home took about ten minutes, where she was met by her mother, who medicated her with Panadol and told her to get some sleep.  Later that night, Tiffany LaRocca arrived at her premises – having finished her shift with the defendant – and ultimately ended up staying the night.  Terri also called the mother of the plaintiff on the night of the incident to check if she was okay.
101	The plaintiff gave evidence she did not sleep during the night due to her pain, although she observed Tiffany to sleep.  The pain was in her shoulder and neck, “but mostly [her] shoulder”.  When queried by her counsel as to any observations about any range of movement in her left shoulder, she responded:
“I didn’t – I had very restricted – I didn’t – I didn’t move it.”
102	The next morning, at about 4.00am or 5.00am, the plaintiff woke up Tiffany LaRocca, advising her that they had to go somewhere like to a “doctor, or a hospital or something” because the pain was getting worse as time went on.  The plaintiff described how Tiffany LaRocca drove her to a medical clinic referred to as “Medical One”, and although she was unsure as to the precise time, she described that it was “quite dark outside”.
103	The plaintiff gave evidence that when she and Ms LaRocca drove past Medical One, there was a man with a briefcase, who appeared to be a doctor, and he was walking towards the medical clinic.  At her direction, Tiffany beeped her horn to get his attention, after which he stopped walking, and the following evidence ensued:
Q:	“What did you do?---
A:	I remember getting out of the car and Tiff got out of the car, I got out first and then he said, ‘Sorry, we’re not open’ and I said, ‘I understand you’re not open but I’ve really hurt myself, like can you just check’ and he said, ‘What have you done?’ and I said, ‘I hurt my shoulder’ and he asked me to take my jacket off so I took my – I pulled my jacket down and he said, ‘Did you just do this now?’ and I said, ‘No, I did its (sic) last night’ and he said it’s dislocated and he said to come inside, he put his - - - 
Q:	When he said to come inside, were the rooms open or did he have to open the rooms to go inside?---
A:	He had to open them. 
Q:	Right.  Were there other staff or lights on in the rooms when you went into the rooms?---
A:	No.  I was under the impression – like I think he got there early, like no one else was there, I didn’t see anybody else there. 
Q:	Can you describe this person as to age and ethnic background?- - -
A:	He was like Australian and probably around - - 
Q:	By that you mean Caucasian?---
A:	Sorry, yes.  Caucasian, around 30 like 35 or 40.
Q:	And after he opened the rooms, who went in?---
A:	Me and Tiffany. 
Q:	And what then happened?---
A:	He walked me to a room and I went in and then on the right there was a room with a bed in it and we walked in there and he asked Tiffany to hold my right side and he pulled my left arm like out, I remember it hurt when he did it but after he did what he did it like instantly felt better.  Like, better than it did. 
Q:	Right.  And after he did that, what happened?---
A:	I thanked him and then he said make sure you call and make an appointment when we’re open to see someone and get a scan to make sure it’s in correctly. 
Q:	What did you then do?---
A:	I left.”
104	The plaintiff also gave evidence that the person she had met at Medical One also put her arm in a white sling made of, she thought, some type of bandage-like material.
105	The plaintiff confirmed that Medical One was her usual medical clinic and she had attended that clinic when suffering glandular fever and other matters.  Furthermore, she stated that her “usual” doctor at that clinic was Dr Ursula Roziel, and that doctor has continued to be her general practitioner.  
106	Later that morning, her mother drove her back to the clinic at around 10.00am, at which time she consulted with a doctor – not Dr Roziel – another doctor of Indian appearance, whose name she could not recall.
107	That doctor referred the plaintiff for a scan, which was undertaken later that morning, and after having the scan, the plaintiff was given a certificate to be off work.  The certificate was dropped off at Kealba Hotel and the plaintiff believed she gave it to her manager “Terri”.  
108	When queried as to whether the procedure undertaken by the unknown person early in the morning had affected the level of pain that she had experienced during the night, the plaintiff responded “Yeah, significantly”. The plaintiff also stated that her sleeping improved following that first attendance on Saturday morning.
109	The plaintiff gave evidence that she continued to wear the sling for a “few weeks”, although she could not recall how long exactly, and when queried about how her left shoulder progressed over the next week, the plaintiff stated:
“It was - it was sore, but my - my neck started hurting more as well, but I just thought that this was due to carrying the weight of my left arm.  And then, yeah, my - my whole arm - like my whole arm was hurting and my shoulder, but I just thought it was because of what had happened and I thought in a couple of weeks it would be fine.”
110	The plaintiff also gave evidence that she went back to Medical One and attended Dr Roziel on the Friday after her injury and, at that time, after making a further assessment of her injury, Dr Roziel recommended further scans, which were undertaken, referred her for physiotherapy, prescribed medication and also gave the plaintiff a further medical certificate which, again, was given to the manager on duty at the Kealba Hotel.
111	A few days after seeing Dr Roziel, the plaintiff completed a WorkCover Claim Form, which she believes was sent by post to the defendant because she could not drive.
112	The Claim Form of the plaintiff dated 26 July 2012 was tendered and marked as exhibit 1.  A Certificate of Capacity dated 27 July 2012 given by Dr Roziel at her first consultation after the incident, on 20 July 2012, was also tendered and marked as exhibit 2.
113	The plaintiff commenced physiotherapy shortly after consulting Dr Roziel and also, in September 2012, she was referred to the neurosurgeon, Dr Caroline Tan, who arranged further scanning of her neck and her shoulders.  At the time of attending Dr Tan, the plaintiff gave evidence that her sling had been removed, but she was experiencing “neck issues, spasms in [her] left arm, and just overall pain in the left arm and neck”. 
114	When queried as to what she meant by “spasms”, the plaintiff gave evidence that “[her] left arm would shake.  And also it was left arm that also – if you would touch [her] neck on the left side, you could feel it spasming also.”
115	When queried as to what she meant by “spasming”, the plaintiff stated ꟷ “It would shake, you could feel it shaking, and it would – it was very tense.”
116	The plaintiff also gave evidence that she was getting “significant headaches in the back” of her head and around her head, but, “projecting from [her] neck”.
117	When asked how frequent such headaches were in the first two months, the plaintiff responded that she could not recall exactly, but went on to say, “I experience them daily”.  The plaintiff described such headaches in terms of “you couldn’t – you couldn’t focus on anything else”.
118	The plaintiff gave evidence that in 2011, when she suffered from glandular fever, she suffered from headaches, but those headaches were “different”.  The plaintiff described that her present headaches were “greater” than those she suffered in 2011 and, furthermore, her present headaches were in a different location in the head to those when she suffered glandular fever.
119	When queried about neck symptoms, the plaintiff gave evidence that she had “ongoing pain and spasming” and that “it would hurt to push down on certain points”.
120	The plaintiff was also queried about her left arm, and she gave evidence:
“It was just like a tingling feeling, and it would also shake.  And it would – I’d get this like shooting – like a burning feeling in [my] arm.”  
121	The plaintiff further stated that she first started to get the burning feeling in her arm when:
“I fell – like after I fell, after – like when I fell, I – like after I fell – after I got the sling off – like when I fell, I didn’t really recognise it, I thought that it would just fix itself but it continued.”
122	The plaintiff gave evidence that Dr Tan referred her for “possible” pain management.  The plaintiff also gave evidence that a couple of months later, she saw an occupational physician, Dr Lange, organised by WorkCover.  In particular, she noted that over the last couple of months leading up to her visit to Dr Lange, her symptoms had “progressively gotten worse”.  
123	When queried as to whether she was receiving any medication from doctors during this time, the plaintiff believed she was getting injections into her neck.  In particular, when queried by the Court on how many occasions she had injections to her neck, the plaintiff responded that she was not “quite sure”, but considered it was only once, as following the injection, she felt like “[her] head after it was extremely heavy and [she] experienced pain from these”.  
124	When queried when the injections were, I was informed by Senior Counsel for the plaintiff that there are two records; one said to be in January 2014 and some records suggest July 2014, and it was not clear which date was appropriate.
125	The plaintiff gave evidence that between the incident in July 2012 and the end of 2013, she continued with her university study, which was done “off campus” at her home.  The plaintiff gave evidence that she was having difficulties with her study during 2012 and she found it “extremely difficult” as it was “really very, very hard to focus” and she could not “retain information”.
126	The plaintiff did give evidence that she did pass her tests and assessments at the end of 2012, but at the end of both her degrees she had “special consideration” and the appropriate authorities were aware of her medication and “everything that was going on”.  Such special consideration was certified by her general practitioner, Dr Roziel.  
127	When queried about the degree that she commenced at the beginning of 2012 and, in particular, the normal time that it would have taken to complete with a normal full workload, the plaintiff indicated that she could have done four subjects per teaching period and would have completed it in two-and-a-half years.  This is compared to her taking sixteen months longer to complete the degree, which came to an end in 2015.
128	The plaintiff also thought – although not sure – that she had to drop some subjects towards the end of 2012.   
129	When queried as to whether or not she felt capable in that first six months after the incident of going back to her pre-injury work, the plaintiff responded:
A:	“Yes, I was determined to get my life back. I did everything I could to try and get back to part-time work and uni.
Q:	Right.  Well, did you feel capable - you said you didn’t - - - ?---
A:	I wasn’t capable but I was determined.”
130	The plaintiff gave evidence that an aunt who lived in Switzerland became ill in February 2013 and that she travelled with her father – who is Swiss – to Switzerland, she thought in either February or March, for a period of three weeks.  When queried whether she had any memory of that particular trip, the plaintiff responded, “I was on Targin and stuff”, and she did not recall much of what happened.
131	On her return from Switzerland, the plaintiff had a consultation with a rehabilitation group called IPAR and, as a result, there was an attempt to return to work at the Kealba Hotel as a “greeting person”.  The plaintiff informed the Court that she was required to stand at the door greeting people.  When queried by the Court as to whether she did go back and try work at the hotel, the plaintiff responded:  “I think it was three – one or three times.”  When again queried as to what was the difficulty with that sort of work, the following evidence was given:
A:	“Well, when I was standing at the door like I had to sit, like I didn’t - I couldn’t stand for that long. And I obviously couldn’t hand out food or do drink like I used to, yeah.
Q:	Sorry, I may be at cross purposes there. I understood all you had to do was meet and greet people. Did you have to do serving too, did you?---
A:	No, no. I just stood at the door.
Q:	Yes, thank you?---
A:	Yeah, thanks, Your Honour.”
MR TOBIN:
Q:	“And just repeating what His Honour said, why was it difficult for you to stand at the door with your injuries?---
A:	Because when I stand too long, I would experience increasing pain. 
Q:	And where was the pain increased? What part of your body?---
A:	My neck and my left arm, that left side. 
Q:	For what period was it that you would be doing that work at that time? Was it continuous for the two hours, or you had 20 minutes on, 20 minutes off, or what?---
A:	I don’t recall – I don’t recall.”
HIS HONOUR:
Q:	“And also after the accident, you told the court that you’d driven to the hotel that night. But obviously a friend of the family picked you up and brought you home after the incident?---
A:	Yeah.
Q:	Have you got back to driving?---
A:	Sorry?
Q:	Have you got back to driving a motor vehicle?---
A:	Yes.
Q:	And when did that start, how quickly after the incident?---
A:	I don’t recall. I got my sling off, I tried to, but I mainly drove – I think it was after I got my sling removed, Your Honour.
Q:	Do you drive a car now?---
A:	Yeah, I have a thing on my steering wheel, so it’s predominantly left – predominantly right hand driving. I do try and like have my arm there on the wheel.”
132	The plaintiff gave evidence that she has a spinning knob on her steering wheel and that has been there for a long time. 
133	In particular, the plaintiff was queried as to what she tries to do with her left hand from “day to day”.  The plaintiff responded:
A:	“I try and use it as much as possible, so before I went to pain management – like obviously the whole time I’ve tried – I’ve – I’ve tried to use it as much as I can. But it has very little – like I can’t – I find it difficult to lift with my left arm. I try and involve it in as many activities as I can. Like I’ll try and – I’ll open the car door with my left, or – I’ve been encouraged to drink, try and drink with my left arm. Just to try and use it more.
Q:	In the first nine to 12 months, were you using your left arm as much as you use it now?---
A:	No.”
134	The plaintiff described herself as being “devastated” after she tried to get back to work in April 2013.  She gave evidence that her doctor referred her to a psychologist, Ms Dayana Noor, who commenced to see the plaintiff on 19 June 2013.  The plaintiff also gave evidence that she re-attended the neurosurgeon, Dr Tan, to discuss whether she should undergo further injections into her neck and following such consultations, she did have further injections into her neck, and was also prescribed narcotic medications.  At that time, there was also discussion about a nerve block to her neck.
135	The plaintiff also gave evidence that, from the date of the incident over the following twelve months, the spasms which she had described earlier were getting “more frequent” and was associated with pain which would increase when she had a spasm.
136	Again, the plaintiff was queried as to what part of her body she was suffering pain in, the most significant pain at approximately twelve months after the incident, to which she responded, “my neck and my left side”, and when queried as to the frequency in those areas, she responded “almost daily”.  She noted that “heat seemed to help”, and she was also medicated.
137	In particular, the plaintiff gave the following evidence in relation to the use of the left arm around this period:
Q:	“With the use of your left arm at that stage, were you having any difficulties using your left arm?---
A:	Yes. I was – I was scared to use it because the times that I did try and use it like I would try and lift something and if it was over a certain weight like I would experience just like increased pain so I guess I was kind of scared to use it in a way. 
Q:	And insofar as when you were trying to do things with both hands, as at that stage, let’s go to something like washing your hair, were you able to wash your hair?---
A:	Oh no, I can’t wash my hair. 
Q:	Right. I’m asking –I’m asking 12 months after the injury were you able to wash your hair?---
A:	No. 
Q:	All right. Why not?---
A:	Because I lost a lot of strength in my left arm, I can get my arm up to my head - - - 
Q:	Right?---
A:	It’s like there’s no power. 
Q:	What about things such as typing, what would happen if you were typing with your left and right hands?---
A:	So, when I typed I – when I was at Channel 7 and stuff like that, I used to obviously touch type and I was very quick. Now, like since – when you’re talking in 2013 – when I would go and type the words would all come out wrong, and if I typed for an extended period it would cause me pain, increase in pain.
Q:	When you say the words would come out wrong, were you able to mentally direct your left hand to hit keys R, G and H, as you wanted to?---
A:	I would press them, but it’s like they didn’t press when I pressed them. So when I would look at the word at the end, it wouldn’t be right.”
138	The plaintiff also gave evidence that, in the middle of 2013, after consulting Ms Noor, she was then sent to a psychiatrist, Dr Alan Jager, on behalf of the defendant.  The plaintiff also noted she was back at university in 2013 but had dropped some subjects.
139	The plaintiff also noted, during 2013, that she was having problems with physiotherapy, and she recalls “feeling nauseous and sick when he was in manipulation of my neck”.
140	The plaintiff also confirmed that after attending the psychiatrist, Dr Jager, she was also sent to a neurosurgeon, Mr Daryl Nye, on behalf of the defendant, and following these consultations, she received advice in relation to a further return to work in September 2013.  When queried as to how she coped in September 2013, the plaintiff stated:
“It was difficult, it was the same, increased pain – I remember I was just like so upset because all I wanted to do was just get my life back and I felt like when I went to these return to works it became like real to me how challenging it was.”
141	When queried as how frequently she was attending the psychologist, Dr Noor, the plaintiff responded she did not know how many times she had seen her but did state she attended her throughout the “whole period since 2013 until now, I’ve seen her fortnightly, weekly and monthly”.
142	After making an enquiry, Senior Counsel for the plaintiff announced that the injections undertaken by the plaintiff into her neck occurred on 4 January 2013 by way of a CT-guided injection and there was a further injection on 25 July 2013, described as a nerve-block injection.  The plaintiff could not remember who actually performed those injections.  However, she did recall that one of the injections caused increasing pain and she felt like “[her] head was too heavy for [her] neck, it felt a lot of pressure”.  When queried whether the injection in the neck produced any relief, the plaintiff answered “No”.
143	The plaintiff also gave evidence that over that first twelve-month period from the incident her headaches were “worse”, and when asked to describe in what part of the head was she experiencing the headaches, she answered, “[t]hey go in the back of my head and it radiates to the top, but it comes from like my neck”.
144	The plaintiff also stated that, following the injections, she recalls “having significant headaches at that time”.   Furthermore, when asked, about the period from the incident through the balance of 2012, and into the middle of 2013, what was the state of her shoulder as distinct from her neck and arm, the plaintiff answered:
“Shoulder was okay, it was like sore initially.  But then after he relocated it, it was – it was okay.”
145	Furthermore, the plaintiff stated that by twelve months after the incident the most disturbing physical pain she was experiencing was from “[her] neck and [her] arm and [her] headaches”.  
146	The plaintiff confirmed that she continued to see the neurosurgeon, Dr Tan, in 2013, and by the middle of 2013 she was taking Targin and Valium.  In response to a question as to how that medication was affecting her, the plaintiff replied: “It was very difficult”, and that she could not “recall much from that period”.  She also stated that it affected her memory, and she did not “feel [herself] at all”.
147	The plaintiff confirmed that she had never previously taken a narcotic-based medication before the incident.
148	The plaintiff gave further evidence that she made a further attempt to return to work in September 2013, with the work consisting of “greeting people”.  When asked as to how she coped on that occasion, the following evidence ensued:
A:	“It was difficult.  I – I was standing in the space – like the most difficult part about it was I was in the same spot. I wasn’t moving around.  Also like people made some comments that made me quite uncomfortable.
Q:	Leaving aside the comments, what effect did standing in the same spot for an extended period of time have on your symptoms?---
A:	It increased my neck pain and my headaches.
Q:	Right. And you say that there were comments that caused you concern?---
A:	Yeah.
Q:	The nature of the comments?---
A:	I remember a male walking past me and he said, ‘oh, don’t slip’, like I just felt like everyone was talking about me.
Q:	How long was that attempt to return to work in the September; can you remember?---
A:	I can’t recall.
Q:	Now - - -.”
HIS HONOUR:
Q:	“Are we talking about a couple of days, or a couple of weeks or a couple of months, that sort of thing?---
A:	No, I think it was just the one day. 
Q:	I see. The other thing I just wanted to ask, you were asked some questions by your counsel this morning and you said the shoulder, once it was relocated wasn’t too bad.  There was pain in the arm, and the headaches which you’ve described in some detail this morning?---
A:	Yeah. 
Q:	The first thing I want to know is, when you say the shoulder was not too bad, did you have any restriction in your shoulder movement?---
A:	Yes. 
Q:	What caused that, do you know; was it pain or - - - ?---
A:	Yeah, it - it was bad, but it wasn’t as bad as when it first happened.
Q:	Okay?---
A:	So, after I - after the injury, the shoulder pain, like it was still there but it wasn’t as bad as the night of the injury.
Q:	Right. And by saying ‘restrictions’ could you move your arm where you wanted to, even though it hurt, or just … you couldn’t move your arm somewhere, some place - - - ?---
A:	I - I avoided moving my arm as much and for a long time because I was - it would - certain ways I would move it, or if I was leaning on it too long, or something like that, it would increase my pain.”
149	The Court queried the plaintiff as to when she had pain in her left arm, where was it in the left arm, and she described it as “it goes from my hand all the way through like the top of my arm”, and when queried as to whether it was also in her fingers and hand, she responded, “yeah”.  And furthermore, when queried whether it goes up the arm, what does it – front of arm, or around the arm, the plaintiff gave evidence, “it’s the whole – it’s the whole arm”.  Again, when queried whether the whole arm is painful, and if so, when it is just by her side, or the pain only comes with movement, the plaintiff stated:
“It comes regardless, but it’s when I am in significant pain I usually tend to have it by my side.”
150	When queried by her counsel how far she could move her left arm during those times when she attempted to move it, the plaintiff responded she did not recall how far she could move it, but was “never able to, like reach above [her] head or stuff like that”.  The plaintiff also stated that after attending Epworth and having some pain management, she could recall gaining more movement and control over her left arm.
151	When queried again as to whether there was any “abnormal sensation” like she experienced in her left arm in 2013, the plaintiff responded she recalled there was a feeling like “tingling”.
152	The plaintiff confirmed that she had problems with her gallbladder in 2013.  In particular, she described that after finding blood in her urine, her mother took her to hospital, and she had her gallbladder removed on 5 November 2013.  
153	After being discharged from hospital following her gallbladder removal, the plaintiff was referred by Dr Roziel to the neurosurgeon, Mr Paul D’Urso who, in turn, referred the plaintiff to Dr Freilich, who performed nerve conduction studies in January 2014.  Mr D’Urso also arranged for the plaintiff to have an MRI scan of her neck.
154	In early 2014, it was recommended by Mr D’Urso that she undertake a pain management course.
155	The plaintiff was queried as to her level of medication and how such medication was affecting her in early 2014, to which the following evidence was given:
A:	“It was extreme, that was in – that was a bad period, I can’t recall much of what happened.  I got bullied.  I lost friends.
Q:	What do you mean you got bullied and lost friends because of your medication?---
A:	Because rumours went around. People thought I was like a drug addict, and people would just bully me because they thought I was on heroin and other drugs.
Q:	Were you taking any medication apart from prescribed medication?---
A:	No.
Q:	And the level of medication that you were taking, was it - were you complying with what the doctor’s orders were in relation to that medication?---
A:	I never took a pill over what they told me.”
156	The plaintiff confirmed that about this time her general practitioner, Dr Roziel, gave her advice that she was addicted to opioids, and ultimately referred her to Dr Khan, a pain management specialist.  The plaintiff also confirmed that by mid-2014 she was still experiencing “spasms” in her left arm but could not recall whether she was experiencing those spasm in her neck.  On consulting Dr Khan, he recommended that the plaintiff be admitted to the Epworth Hospital for an impatient detoxification program, and such program commenced on 1 September 2014.
157	Shortly prior to entering hospital, the plaintiff had also consulted a neurologist, Dr Leslie Roberts.
158	When queried by the Court the extent of medication at the time she entered hospital for detoxification, the plaintiff stated she would take 60 milligrams of Targin or 60 milligrams Endone daily.  Furthermore, the plaintiff considered that such medication was affecting her quite significantly, although she was able to carry on the studies that she was undertaking at that time – albeit she had to drop some subjects.  Again, in answer to a query from the Court as to whether the Targin and/or Endone over the period leading up to the detoxification had made any difference to the pain in her neck and arm – the plaintiff responded, “initially it was but as time went on, I feel like it didn’t help as much”.
159	The plaintiff gave evidence that when in the Epworth Hospital from 1 September 2014, she was treated with a Ketamine infusion, which she described as involving a PICC line through her heart.  The plaintiff described how she had an “adverse reaction” to the infusion, causing her to hallucinate, vomit, and failing to recognise people, even her mother.  The plaintiff described it was “really hard in – in Epworth”, and she remembered her heart racing, vomiting and then when she went “cold turkey” she became very sick.  The plaintiff described that ultimately through the period of time in hospital, she was weaned off the Targin and, indeed, when she was discharged from the Epworth Hospital in September 2014, she was not on any medication and that she was “terrified” and “petrified” of taking any further medication.
160	In particular, the plaintiff gave evidence that she then tried to stay off medication, but a couple of months later she had to start again.  She confirmed that she saw a psychiatrist, Dr Entwisle, for the defendant, and also was referred to Dr Blombery for further treatment on her left arm.  Her first attendance on Dr Blombery was in October 2014, and initially he prescribed Lyrica and Prednisolone.  Prior to the advent of these medications, the plaintiff had only bought over-the-counter medications and was “too scared to take anything else”, since her detoxification.
161	The plaintiff gave evidence that she obtained employment with the Werribee Racing Club in late Spring of 2014, and such employment continued until Christmas 2014.  Such employment was obtained through a family friend, and her duties involved helping out with the upcoming Werribee Cup Day and after that many of the horses were still there in preparation for the Melbourne Cup.  When asked how did she cope doing that job, the plaintiff stated:
“It was okay, physically I felt more pain but mentally I felt needed and I enjoyed interacting with people so mentally I had felt a little bit better but physically it was difficult.”
162	When queried by the Court as to what she was actually doing when employed by the Racing Club, the plaintiff stated:
“Sorry.  So, I was – I was ringing around trying to help organise the kid’s entertainment on the day. I did like showed in international – like they brought the international horses and we had like breakfasts and stuff and I would like lead them to where they had to go.  And then it was more kind of just walking around and planning where we would put things for Cup Day.”
163	The plaintiff also gave evidence that she was successful in her studies in 2014, passing all subjects, albeit with a special consideration throughout her degree certified by her general practitioner.
164	The plaintiff confirmed that she continued to see Dr Blombery during 2015, during which she believed he increased her dose of Lyrica.  She also gave evidence by early or mid-2015, she felt “quite good initially on – the Lyrica seemed to help significantly”.
165	The plaintiff described that although her spasming in her left arm did not occur as much, the left arm would still change colour, change temperature, and she still got “this hot burning pain”.  The plaintiff stated, further, “obviously” she often had headaches and neck pain.  The plaintiff also gave evidence that, because of her ongoing problems, she underwent a further MRI scan of her neck and shoulder in mid-2015.  The plaintiff confirmed that she did complete her studies in 2015, during which year she also had psychological treatment.
166	At the time of completing her degree, the plaintiff applied for various positions, but was getting quite upset because she could not find any particular position.  In February 2016, she was given the opportunity for a “try out” to be a journalist with the Herald Sun.  
167	In relation to that opportunity, the following evidence was given:
Q:	“How did you feel about that going to – that opportunity to go and work as a journalist at the Herald Sun?---
A:	I was so excited. I was really looking forward to it and I know there’s been periods throughout that, you know, I just always pushed myself to get my life back. I wanted to be a journalist and even though some people doubted that I didn’t care, I wanted to do it and I was determined. And I really was excited for the Herald Sun.
Q:	Right. Can I just ask you to reflect upon your three and a half years from that stage up until going to the Herald Sun in relation to how your injury had affected your relationships with friends, family, boyfriends and the like, how’d that three and half years been through that period of time?---
A:	Yes, like, it had a significant impact on my friendships, even my relationship with my parents. 
Q:	Were you at that stage by the end of 2015, did you have prescribed for you Cymbalta for the first time?---
A:	Yes. 
Q:	And who was the person who first prescribed Cymbalta to you? Can you remember?---
A:	I can’t remember. 
Q:	Had you, around that time, been to see a number of doctors – so psychiatrists on behalf of the defendant and received their reports about what they were saying about your condition?---
A:	Yes. 
Q:	And with those reports were you providing those reports to your own treating doctor, Dr Roziel?---
A:	Yes. 
Q:	Now, in the February of 2016 did you, in fact, try and go the Herald Sun to do that task?---
A:	I did. 
Q:	How’d you cope?---
A:	I struggled, I missed at least three days and I remember just – my aunty would pick me up and I would just cry because I was in a lot of pain and I – I’m sorry. 
Q:	Did you want to do that employment with the Herald Sun?---
A:	Yes. 
Q:	Were you qualified to [sic] that employment with the Herald Sun?---
A:	Yes. 
Q:	Was it something that understanding from what you had working with the television channels, something that you thought if you weren’t having your symptoms you would have been able to do?---
A:	Yes.” 
HIS HONOUR:
Q:	“Just, Ms Gartmann, just with the Herald Sun, I just refer to - you may have said it and I missed it, were you actually offered a job which you accepted, or was this some sort of trial run, or what?---
A:	No, it was an internship, Your Honour. 
Q:	And what does that mean?---
A:	So, I went there and started working, it was - it was just an internship, so they -they would show me - they showed me how - I would go out and write stories with another girl that was also an intern. I used to do daily vox pop’s so I would go and get people - like, talk to people on the street and get them to answer the daily questions. And then I would - I did a few stories. It was similar to employment, it was just as an intern. 
Q:	As an intern, does that have a limited life, or - how does it evolve?---
A:	Well, usually if - like, if you do well as an intern they may possibly keep you.
Q:	Right. How long was the internship supposedly for?---
A:	It was two weeks. 
Q:	It was two weeks, I see. And you did the two weeks, but you said you lost a few days?---
A:	Yeah, I did. And I feel like they really weren’t happy about that.
Q:	They weren’t happy about that?---
A:	No. 
Q:	No, I see. Yes, thank you.”
168	The plaintiff gave evidence that she felt “devastated” and “upset” when the internship came to an end.
169	The plaintiff continued looking for other employment and in the middle of 2016, or shortly prior to middle of 2016, the plaintiff commenced to study another course after completing her degree in 2015.  On reflection, the plaintiff considered that she did the further course in 2016 – the year after her internship with the Herald Sun.  
170	The plaintiff also gave evidence that in July 2016, her general practitioner, Dr Roziel, referred her to the psychiatrist, Dr Datta, and when queried about how she was emotionally, the plaintiff gave evidence as follows:
Q:	“Can you tell His Honour as to at that - by that stage how were you feeling emotionally?---
A:	Yeah, I was not good. I was struggling. I’ve struggled emotionally for a long time. 
Q:	Can you describe in the sense of whether you were having unusual thoughts, anxious, depressed, - - - ?---
A:	Yeah, like I had suicidal thoughts. I was sick of living in continuous pain and not being able to fix it.”
171	The plaintiff confirmed that she commenced seeing Dr Datta in July 2016 and that she had continued with that psychiatrist over the last four years.  The plaintiff also received a recommendation in the second half of 2016 to undergo a pain management program and, indeed, the plaintiff described the course in the following way:
Q:	“So, it was at Epworth which means it was - they had three specialists there, I had an occupational therapist, I had a physio and a psychologist. And they taught me various techniques on how to better manage my pain. They also pushed me a lot there to, like we would try and increase like how long I could run without it hurting and my arm strength, they really - they taught me a lot about how to control my arm, and they really encouraged me to move it more, so from that moment I - I wasn’t as scared, I guess, I tried like harder to use it in my daily life. 
Q:	Did you increase the level of usage of your arm by reason of that pain management program?---
A:	Yes, but as - in saying that, like it’s taken - it takes, over time it’s significantly improved, but (indistinct) they helped a lot.”
172	The plaintiff gave evidence that, prior to the pain management program, she described having “good days” with her left arm, but there were also a lot of times that she could not use her left arm.
173	The plaintiff also gave evidence that the pain management course taught her to think differently about the use of her arm and that, in fact, there was change to the extent that she could involve her arm. 
174	In particular, when queried by the Court whether the pain management course at the Epworth assisted her in improving the limitations said to exist in the left arm, the following evidence was given:
HIS HONOUR:
Q:	“Is it still the case, Ms Gartmann, with the pain management course, which assisted you by the sound of it, I understand your limitations with your arm. Was it still the case the arm couldn’t go really above the shoulder height, or is that - was that - - - ?---
A:	No, I - I can do that. I - - -  
Q:	What - just give me an idea, just as best you can, say, what are the difficult things for you with your left arm?  For argument[‘s] sake, can you hold a - a fork in your left arm, is that difficult?---
A:	Yes, so like there are days that I can – I can’t – like I never really – I avoided that kind of before but since Epworth they encouraged me to, for example, drink with my left arm. 
Q:	I see?---
A:	And open a car door and like they encouraged me to try and use it like deliberately use it when I’m doing things so that it gets that movement. 
Q:	Right. Is that when you do – and do you try and do that?---
A:	Yes, absolutely.
Q:	Does that cause pain when you try and do it though?---
A:	It depends on the day and it also depends on how long I’m moving it. Like, I can lift my arm up and stuff like that but if I do that for a long period it will cause increase in pain. 
Q:	Yes, thank you?---
A:	Thanks.” 
MR TOBIN: 
Q:	“Are there certain movement with your left arm, and I’m now talking since you’ve done the pain management course, are there certain movements with your left arm which are lot easier and freer than other movements?---
A:	Yes, it’s a lot easier – like, easier for me to move – it’s easier for me to move the bottom part of my arm than this part.” 
HIS HONOUR: 
Q:	“I missed that. Where are you refer – it’s easier to do what?---
A:	Sorry. It’s – this - - - 
Q:	I can’t see where you’re referring?---
A:	Sorry. 
Q:	That’s okay?---
A:	This part is easier to move.
Q:	You’re talking about the lower part of your arm?---
A:	Yes, but I can’t – I don’t – like, see this – see how that goes all the way up?  I don’t do that often with this arm. 
Q:	Yes.  Thank you.”
MR TOBIN: 
Q:	“When you say you don’t do it often, can you do it with that arm even though you don’t do it often?---
A:	Yes, I can do it, it’s just if I do it, it will increase – it hurts. 
Q:	Right?---
A:	So, I avoid doing it but I can do it. 
Q:	Where you encouraged – sorry, Your Honour, I thought Your Honour was going to say something.”
HIS HONOUR:
Q:	“Sorry, I was. I forgot something I wish I – I wanted to ask. Mr Gartmann, after the pain management course which I accept improved you to some degree but at that time after that was pain in your arm all the time or just some of the time?---
A:	It’s some of the time, it’s – it occurs often but it – it is helped with medication but it’s some of the time. 
Q:	And just give me an idea when you say some of the time, I know it’s difficult but, like, you talk about so many hours a day or days a week or - - -?---
A:	Yes, I’ll experience it – I experience pain in my arm like every second day, every – sometimes every day. 
Q:	And then as I think I – correct me if I’ve got this wrong, where you described to me before the arm being the lower part of your arm, that’s not too bad, but when you start to talk about going above your shoulder although capable of doing it that gives rise to significant pain symptoms, have I got that right?---
A:	Yes, Your Honour. 
Q:	Yes. Thank you.”
MR TOBIN: 
Q:	“And leaving aside the pain in your arm even when it’s painless, do you have a full function of the arm or is there some restriction in the range and force with which you can use your arm even when it’s painless?---
A:	Yes, so, the thing that I struggle with that I’ve tried really hard to improve on is the weight. It holds minimal weight on my arm, like, I can’t lift a box or something like that.” 
HIS HONOUR: 
Q:	“Well, you were talking earlier about I think the courses let you pick up things and we talked about a fork, can you use a fork now in your left arm?---
A:	Yes.  But it - - -
Q:	And how about?---
A:	Sorry.
Q:	Sorry, go on?---
A:	In saying that there are also days that I can’t because when it’s in a lot of pain I can’t use – I can’t have my arm up that long to cut so I usually leave it.
Q:	You also talked about a glass, what about a cup of tea? I don’t know if you drink tea or coffee but say a cup of coffee or something or cup of tea, that sort of weight, is that something you can pick up easily or not or when - - -?---
A:	Yes, I can – I can pick up a cup of tea. 
Q:	And that causes any difficulty?---
A:	It – it – no, it’s okay. 
Q:	Okay?---
A:	Like, yes, it’s okay.” 
MR TOBIN: 
Q:	“With the pain management course at the Epworth, how long did it go for?---
A:	It was initially meant to be six weeks but I was there for about four months. 
Q:	And how frequently were you attending?---
A:	Three days a week or it was two or three days a week.
Q:	And to what extent did you learn to use your left arm and what type of things were you able to do with your left arm by the time you completed that course?---
A:	Well, I had a lot better range of movement, as Your Honour said I was able to – I was encourage to – well, at first I had to start baby steps, like back then I started lifting things with my left arm like a glass but I would drink some of – like I would start lifting things like a glass or I would, yes, try and like open car doors and like deliberately try and use it to open things. Like, I can’t open jars or anything like that but to try – I would deliberately try and use it more.”
(sic)
175	The plaintiff also confirmed that during the course at the Epworth, she was involved with water therapy and also working in a gym for movement.  In particular, the plaintiff was queried whether the pain management course at the Epworth improved her neck pain and headaches, to which she responded, “it slightly improved it”.  But she also noted that she was taught “how to manage it”.
176	The plaintiff described the course as “the best benefit” that she had had since the time of the incident.  Furthermore, she considered that the course encouraged her to try and get back into the community and that it was shortly thereafter she commenced volunteering, performing various jobs.
177	In particular, the plaintiff did give evidence that on completing the course at the Epworth – which was initially meant to be for six weeks, but extended to four months ꟷ she travelled to Bali with three of her girlfriends for about a five-day holiday.  She gave evidence that she was encouraged by the doctors treating her at the Epworth, and was also encouraged by her treating psychologist.  When asked whether she enjoyed the holiday, the plaintiff stated:
“I really enjoyed it, but in saying that, like there was two of those days that I spent at the villa, but my friend stayed with me. And it was - it was a relaxing holiday, like we did drink and we did sit by the pool.”
178	On her return, the plaintiff commenced a voluntary day, one day a week, at Ronald McDonald House, performing what was referred to as the “welcome desk volunteer”.  She worked four hours on a Friday afternoon, welcoming families into the house, and also answering phone calls, arranging bookings, and performing a supervisory role over groups who attended the house.
179	The plaintiff gave evidence that she enjoyed being there but could not control when the pain “gets worse”, and thus there were days that she missed, and even some days the staff would tell her to go home.
180	Also, the plaintiff performed voluntary work with the Raise Foundation, commencing in April or May, which involved, generally, two hours on a Tuesday at the Sunshine College, performing the work of a mentor at high school with children who were vulnerable and needed help, or did not have a good life at home and “stuff like that”.  
181	In particular, the following evidence was given:
Q:	“To the extent that you started doing that voluntary work, you talked about the pain management program, did they encourage you to do as much as you could?---
A:	Absolutely, yeah.
Q:	And to the extent that they predicted how you would feel after doing it, was that prediction accurate in the sense of improving yourself psychologically?---
A:	Absolutely. 
Q:	Just in relation to that, you at times have physical pain and you’ve told the court that at times you’re upset. Do you see any relationship between the level of pain you’re experiencing when you’re upset, or when you’re upset and the effect on that level of pain?---
A:	Yeah, when I’m in pain I get more upset. 
Q:	And when you’re upset does that affect the pain?---
A:	Yeah, it goes hand in hand.
Q:	Now, just a couple of other employment - volunteer - did you volunteer for a lawyers - Victorian Health Care Lawyers group?---
A:	Yeah, that was - my family friend just - she’s a lawyer, and that was very - like that was just whenever, like once a fortnight or whatever, she would - just - that was more to get me out of the house because she knew I was, you know.”
182	After Ronald McDonald House, the plaintiff commenced doing some volunteer work for The Les Twentyman Foundation in about April 2019 on a voluntary basis.  The plaintiff stated that she was unable to obtain employment on a paid basis through 2017 to 2019, although she wanted to do so.
183	Furthermore, in 2017, the plaintiff re-enrolled for further tertiary studies, and that was in July 2017, some three months after completing the pain management course.  In particular, the following evidence was given:
Q:	“Why did you go and do that course; you already had a degree?---
A:	Because I - I felt like I didn’t have the capacity anymore to be a journalist and I searched tirelessly for jobs in that field. But in saying that, it is also a very fast paced environment. But I had to find something - I was encouraged to look at other alternatives by my treaters and I enjoyed helping people and I enjoyed - I really enjoyed that. So, then I - I decided to study again.
Q:	Right?---
A:	But not only that, I - I struggled with doubt, study, if I wasn’t - the majority of the last eight years I have been either studying or volunteering, I – when I’m not studying or volunteering is when I struggle mentally the most. 
Q:	Right.”
HIS HONOUR: 
A:	“And this course you’re doing now, is what again? Tell me. Sorry, the course you started after the pain management course?---
A:	It was a Bachelor of Social Science majoring in Behavioural Studies. 
Q:	And have you completed that course?---
A:	Yes, I graduated last year.
Q:	And what’s – the training that that gives you, would normally lead to what?---
A:	Social work, community service jobs. 
Q:	Is that something you’re thinking about?---
A:	Yes, well it’s actually quite convenient because where I am now is kind of using – using that, yes. 
Q:	Yes.”
MR TOBIN: 
Q:	“And did – that course was an off-campus course again but one which you obtained the qualification in you say the end of last year?---
A:	Yes, I was fully on-line.”
184	The plaintiff also gave evidence that she did have a relationship entering into the period moving up to the detoxification, but it ended after that event.  In particular, she stated that she had not had a serious relationship for longer than a couple of months since that time.  She also gave evidence that her family have been supportive, both financially and emotionally, but when queried about friendships over the years, she gave the following evidence:
“I’ve been through a lot of friends. I’ve lost friends.  I’ve withdrawn from people.  You know, some of them I’ve lost at my own fault because I have withdrawn but other time, you know, some people have also left me because, you know, I can’t do the things they want to do.  I’ve never been to a music festival or gone away – like they go away for a week at a music festival and stuff like that and I’ve never been to a music festival or anything like that.  The things they wanted to do I couldn’t do and some friends were understanding of that but other friends weren’t and a lot of other people would get upset at me because I would say I would go somewhere but then it came to that day and, you know, I was in pain and I would cancel and they would get upset at me.”
185	The plaintiff also gave evidence that, after the formal completion of the pain management course in 2017, she has continued to do various recommended activities, including going to the pool, having resistance bands, and all the equipment at home.  Furthermore, on finishing the pain management course, she received no ongoing physiotherapy, and the treatment was essentially by way of her psychologist and psychiatrist. 
186	The plaintiff gave evidence that towards the end of 2017, she woke with a significant stomach problem, persistent severe pain in her stomach, causing her to go to the toilet a lot more than usual.  The plaintiff gave evidence that in September 2017 she attended the Royal Melbourne Hospital and came under the care of a Dr Connelly, after initially consulting a naturopath to help with her symptoms.
187	At that time, the plaintiff was taking Nurofen and she was advised by Dr Connelly to stop such medication – which she had been taking throughout the whole period, just on an as-needs basis and, of course, such drug does not require a prescription.  She informed the Court that she was given no other explanation for her gastric problems apart from the taking of medication, and after being informed about Nurofen, she has not taken that any longer.  The plaintiff gave evidence that she still has ongoing gastric problems, manifesting in that she goes to the toilet a lot more regularly, and although it comes and goes, she does get like a “sore stomach”, causing her to consult a naturopath, and she describes it as a problem that “comes and goes, like it’s not a daily”.
188	The plaintiff gave evidence she understood Dr Connelly was a gastroenterologist, and that he gave a diagnosis of lymphocytic gastritis.
189	The plaintiff also stated that, up to the time that she ceased taking Nurofen, she had been taking Nurofen “daily” and she considered “probably four a day”.
190	When the Court queried as to what drugs the plaintiff had been taking over the last ten or eleven months (that is, over 2020), the following evidence was given:
Q:	“I’m on a fair amount, Your Honour. I have Lyrica, which is meant to be three times a day. I take it - sometimes I do, sometimes I don’t, depending on whether I’m at work.  I can’t concentrate on three Lyric’s. Also Oxazepam, I take a quarter four times a day.” 
HIS HONOUR: 
Q:	“What did you say then? Diazepam or - - -?---
A:	Sorry, Oxazepam.
Q:	Oxazepam?---
A:	So, my medication right now is Oxazepam, Lyrica, Cymbalta, Sertraline, Baclofen and Imovane.  And Neulactil. 
Q:	Yes, thank you.”
MR TOBIN: 
Q:	“Just in relation to that, the Cymbalta, that’s a drug that’s been – you’ve been taking since the end of 2015, is that correct?---
A:	Yes.
Q:	Right.  And that being prescribed to you now through Dr Data or through Dr Roziel?---
A:	Dr Data, Sir. 
Q:	The other drugs that you’ve spoken of, the five other drugs you’ve spoken of, who’s the prescriber of those drugs?---
A:	They have been prescribed my different people but Dr Data renews my scripts or Ursula. 
Q:	That’s Ursula Roziel?---
A:	Yes.”
(sic)
191	The plaintiff also gave evidence that, in 2018, she suffered injury to her right ankle when she was house minding a friend’s house and feeding the dog, when she tripped over the dog and fell off the decking, landing awkwardly on the foot, suffering a Lisfranc fracture.  She described how it took a little bit of time for a diagnosis to take place and ultimately came to surgery some three weeks later, after which she wore a moonboot for a period of time.
192	At the time, the plaintiff was performing volunteer work at Ronald McDonald House and stopped for a period of time when she fractured her foot.  She ultimately underwent surgery on 19 September 2018, having the fracture plated and screwed.  The plaintiff described similar symptoms in her foot as she was experiencing in her left arm – that is to say tingling and getting a hot burning pain, and some degree of swelling and change of colour.
193	When queried as to whether the foot injury was said to be part of the claim, Senior Counsel for the plaintiff said the reason for leading such evidence was on the basis that some of the doctors treating the plaintiff suggested the plaintiff had a predisposition for this type of reaction, in the sense that the subsequent ankle injury has produced symptoms which are of the CRPS-type symptoms, but he stressed that the said incident was in no way causative of the right ankle injury.
194	The plaintiff gave evidence that after treatment for the right ankle injury, she continued her work with Ronald McDonald House and, later, in 2019, obtained voluntary employment with The Les Twentyman Foundation.  The work with that organisation was, again, through a family friend.  She commenced her voluntary work in April 2019, and at about the same time, she completed her Bachelors’ Degree ꟷ that is, her second qualification.
195	When queried about what she did for the first six months from April 2019, the plaintiff stated that she was helping out, made some phone calls, “helping Lisa” with events that were coming up, searching for venues where events could be held and “stuff like that”.  As a volunteer, she was attending about once a week, and was also continuing her work with Ronald McDonald House.  When queried as to whether or not she was coping psychologically during this time, that is, the middle of 2019, the plaintiff stated:
“Yeah, like I was happy to - I felt good. I felt needed, like I felt - I felt good about that aspect - psychologically I was a lot better, but it would cause me more physical pain.”
196	The plaintiff confirmed that in the middle of 2019, her treating psychiatrist, Dr Datta, said she should undertake treatment called TMS treatment, which she understood to be treatment involving “magnetic electrodes into your brain to try and improve your mood”.  The plaintiff accepted such recommendation and was willing to undertake such treatment, but in September 2019, an incident occurred when she was doing voluntary work at Ronald McDonald House.  
197	Such incident occurred when she was travelling outside the work premises, she became aware of a man who was following her, and after she saw him running, she commenced to run, and got to her car, which she locked.  This unknown man appeared at her car, and he was banging on the doors and windows, asking her to open the door, to which she answered “no”, and also he was making aggressively sexual remarks.
198	On calling the police, she was told to remain in the car with the doors locked, and during this time the man was masturbating and staring at her.  Because the police did not seem to be coming quickly, the man had disappeared and the plaintiff commenced to get out of the car, causing the man to run back, and for the plaintiff to call Ronald McDonald House, and on seeing the people from Ronald McDonald House, the man ran off.  The plaintiff took photographs of him while he was at the window of the car, and she informed the Court that ultimately police were able to identify him and subsequently charged him.  The plaintiff described the incident scaring her and she did not feel safe, and every time she went to Ronald McDonald House after that, it triggered memories of what occurred.
199	About this time, the plaintiff was offered a paid position with The Les Twentyman Foundation, involving “digital content”, which the plaintiff explained to mean:
“So, I – I’m a digital content officer so my days usually revolve around scheduling Facebook posts and social media posts.  Sometimes when we have events or I need footage I will go to Les’ house or go [to] a park and do a promotional video with Les.”
200	The plaintiff commenced paid work in October 2019 and such contract has been renewed several times since then.  The plaintiff gave evidence that she is “really happy” doing that work.  Her salary is funded by donations.
201	In particular, the plaintiff gave evidence that on a recent renewal of her contract she was told they would like to give her a longer contract, but as she was paid from donor money, which was impacted by the COVID virus, it was uncertain whether the donation would continue at the same rate.
202	At the time of giving evidence, the plaintiff was working fifteen hours per week, and that has been the same for the last twelve months, with some of that being undertaken at The Les Twentyman Foundation Centre, and after the advent of COVID, such work continued at home, which she found, from her point of view, easier to work.
203	The plaintiff was queried by her Senior Counsel as to whether she copes intellectually with her role at The Les Twentyman Foundation Centre, to which she responded:
“Yes, I just find it hard to – like I can’t multitask, I need to do it – I need to do tasks off a list and I do get easily overwhelmed I’ll admit.  Or like easily anxious, I guess.  I struggle with typing. I sometimes use my phone to – I usually send emails on my phone because I can talk – there’s a microphone, I don’t know if you noticed but you can email and there’s a microphone and if you click it in your emails you can talk to your phone and it will type it for you.  And I – yes, I just – my memory is what I struggle with. Yes, and concentration probably but - - -.”
204	When queried whether she enjoyed the work, the plaintiff stated:
“Yes. Like, absolutely I love it. I want to be there, yes, I wish I was there more but like mentally my – mentally it’s so good for me to – you know, I feel needed, I feel like I’m worthy, I’m doing – I really enjoy it.”
205	When queried whether she needed breaks when working at The Les Twentyman Foundation, the plaintiff stated that she gets breaks “whenever I want” and that the organisation was “very supportive”.
206	When queried as to whether she could work more than a fifteen-hour week, the plaintiff gave the following evidence:
A:	“Well, I’m always going to continue to try but it is – I need time to manage my pain as well. Like, in my days that I was at the office, you know, the next day I would absolutely focus some time to my pain management plan and stuff like that and that’s when I would usually go to the pools so I could try and relieve my pain so I had more chance of being able to go to work the next day.  So, right now I can’t but I still have hope that one day I can.”
HIS HONOUR:
Q:	“The 15 hours when you [sic] first offered paid employment before the virus, over a week how were the 15 hours spread then?---
A:	So, they were spread on two days but usually on Tuesday’s and Thursday’s but I would always have a day in between so I could do my - - - 
Q:	And so, a little bit less than a normal day at that stage?---
A:	Yes.
Q:	Indeed, when that was – it was offered to you as 15 hours was there any negotiation about how many hours or - - -?---
A:	No. 
Q:	No. So, that’s what they offered you 15 hours?
A:	They did offer me 15 hours but my – since I have been employed, they have hired someone else full-time to help me - - -  
Q:	Fuller work?---
A:	With social media.”
(sic)
207	The plaintiff gave evidence that she commenced the TMS treatment in late 2019 and early 2020 and had about fifteen sessions of about forty scheduled sessions.  The treatment came to an end because the plaintiff suffered anxiety attacks and it was inappropriate to continue with the treatment.  The plaintiff described the actual treatment as uncomfortable, as electrodes are attached, and it felt like “a bird is picking at your head repeatedly for a while”.
208	The plaintiff was reminded of her earlier evidence that, when she started her tertiary studies in 2012 she wished to become a television journalist, and in particular, whether she sees that as a possibility in the future, to which she answered “[n]o”.  When queried how she felt about that, the plaintiff answered, “it’s devastating, like … it plays on my mind all the time”.  
209	The plaintiff also described that she has problems with sleeping and she wakes up “multiple times during the night” in pain.  She believes that if she changes positions in her sleep and moves to her left side, she wakes up and she will be shaking, and it will be causing her a lot of pain.  The plaintiff asserted that that happens “nightly” and that prior to the incident she had no sleep problems.
210	The plaintiff also stated that she suffered from panic attacks “for a while” and she believes those attacks started when she finished the detoxification process.  She described the panic attacks to be like “I’m having a heart attack, like I can’t breathe”.
211	When queried about the frequency of such attacks, she said it varied and could be as frequently as three or four times a week or two to three times a month.  The plaintiff could not associate these “panic attacks” to any particular occurrence or activity, although she considered the more pain she is in, the more stressed she is, and the more likely they are to occur.
212	The plaintiff was also queried in relation to a recommendation by her treating psychiatrist, Dr Datta, that she receive inpatient treatment in 2018.  The plaintiff recalls that discussion, but that did not occur, and she could not recall why, although she would have been willing to go to hospital if necessary.
213	The plaintiff was also queried about a discussion about inserting a nerve stimulator in relation to her treatment, and when queried about her attitude to such a course of treatment, the plaintiff stated:
“I was really scared.  I had multiple discussions with the treating - Dr Khan, about it.  And I asked him particularly how significant [sic] it would help me, and I was under the impression that it was not a fix to my pain, it was just to help better manage my pain.  And I just - I thought that it was a little bit invasive for its benefit, so I opted against - I didn’t do it.”
214	The plaintiff also gave evidence that she cannot use Codeine, as it makes her sick.  
215	The plaintiff was also queried about her father’s health over the last two years, and she informed the Court that he got “sick” and “diagnosed with cancer”.  When queried as to how this affected her, the plaintiff stated:
“Look, it’s - it’s a part of life, like it happens, I - obviously it’s not ideal, but in saying that it doesn’t upset me as - like it upsets me obviously that he’s sick, but what upsets me and plays on my mind more is the fact that I have been in this situation and I haven’t been able to support him the way I’d want to.  And he hasn’t seen me achieve my goals and I have been - I know I’ve stressed - like I know how much my parents have both stressed out about me, and sometimes I think you know, did - is that - how much has that stress caused him to get sick, and why hasn’t - he hasn’t been able to see - I haven’t been the daughter he deserves me to be, and I - that plays on my mind a lot.”
(b)	Further evidence-in-chief from the Plaintiff
216	During the cross-examination of the plaintiff on 30 October 2020, Senior Counsel for the plaintiff advised the Court that he had in his possession a Facebook entry made by the plaintiff, together with a photograph of her wearing a sling, such photograph purportedly taken on the day she attended the medical clinic and got treatment from an unknown doctor.  After discussion between the parties, and with the consent of those acting for the defendant, I permitted Senior Counsel to lead further evidence-in-chief from the plaintiff.
217	I set out the further evidence-in-chief:
MR TOBIN: 
Q:	“Ms Gartmann, in 2018 did you go to court before Judge Bourke and give evidence in relation to your serious injury application?---
A:	Yes.
Q:	In the course of that application were you cross-examined as to the attendances you had at the clinic on the day after the injury?---
A:	Yes.
Q:	Were you aware before that cross-examination on that day that there was no notation at the clinic of your first attendance at the clinic on that Saturday morning?---
A:	No. 
Q:	After being cross-examined did you search your Facebook when going home from court and send an email to Nancy Alessi, your solicitor?---
A:	Yes. 
Q:	And what did you find in your Facebook that you sent to Ms Alessi?---
A:	The photo.
Q:	Right, could the photo and that Facebook entry be brought up?---
A:	Me?
Q:	No, no, no, I think the – I’m hoping it be brought it by the court, here we come now I think.  Now, perhaps the photos first.” 
HIS HONOUR:
“Photo first if we can – there we are, yes.”
MR TOBIN: 
Q:	“That photograph, when was that photograph taken?---
A:	I know – it was the next day but I can’t recall what time – like when. 
Q:	When you say the next day, the next day to the injury or the day that you went to the doctors?---
A:	Day I went to the doctors.
Q:	Right.  Can you recall at what time on that day the photograph was taken?---
A:	I just can’t recall. 
Q:	Right.  And on that photograph, there is on your left shoulder a mark?---
A:	Mmm hmm.
Q:	And what is that – when did that mark appear on your shoulder?---
A:	After my accident. 
Q:	And at the bottom of that photograph there’s a notation, ‘Oh boy, dislocated shoulder’?---
A:	Mmm hmm.
Q:	Move out a bit.  Oh hey, sorry, dislocated shoulder. Who wrote that?---
A:	Me. 
Q:	And there are then a number of responses to that?---
A:	Mmm hmm.
Q:	Right.  Why did you send that to your solicitor on the way – after getting home from court after being cross-examined?---
A:	Because I didn’t – I wanted to prove that I wasn’t lying but I didn’t even know it was an issue until we went to court.
Q:	Your Honour, I please – if Your Honour pleases, I tender that Facebook entry of the plaintiff.”
HIS HONOUR: 
Q:	“Now, the Facebook entry is the – is everything or is the photograph and the – or do you want the email too?” 
MR TOBIN: 
A:	“I don’t know if we need the commentary.  There’s some commentary in that Facebook entry, is that the totality of the commentary in the Facebook entry or only the first part of the commentary?”
HIS HONOUR: 
“Well, just - - -.”
MR TOBIN: 
“I’m asking, Your Honour.”
HIS HONOUR: 
“I’ll tell you what I’ve got, I’ve got the photo which your client has now identified besides – when she – the day it was taken and I’ve got, ‘Oh hey, dislocated shoulder’.  On the back of that I’ve got the email to Nancy Alessi - - -.”
MR TOBIN: 
“Yes, Your Honour.”
HIS HONOUR:
“And then I’ve got a separate page which there’s three, I don’t know how you call them on Facebook, three responses is it from a Marcus Dia, Daniel Hyett and, sorry, then back to the plaintiff to - - -.”
MR TOBIN: 
“Yes, Your Honour.  Now, I don’t think that’s the totality but I don’t know if those responses – they’re included because that’s the totality of the materials sent to the solicitor, I don’t know if it’s necessary to have that part, Your Honour.  I’m happy to tender that but I don’t know if it’s necessary?---
“But there I said I hurt my neck because my neck was sore.” 
 HIS HONOUR:
“Yes, she does say that.  Well, just so – I didn’t quite understand initially though, Mr Tobin, where you say what you want tendered, is that the photo and the email or to - - -
MR TOBIN: 
“No, my learned friend says there’s no purpose in the email because it’s opening up potential - - -.”
HIS HONOUR: 
“Okay, so it’s just the photo?”
MR TOBIN: 
“The witness has given evidence it’s on the way home, Your Honour, I don’t think that’s need for the email, just the photograph and the commentary, Your Honour.” 
HIS HONOUR: 
“The commentary being at the bottom of the page?”
MR TOBIN: 
“Yes, Your Honour. Sorry, and the commentary, perhaps over the page not only the bottom of – I think that it goes over – I don’t know how they go in Facebook, Your Honour, I’m not quite as familiar with what it’s called in social media but it’s perhaps the commentary as well as the photograph is appropriate, Your Honour.”
HIS HONOUR: 
“I’m not to[o] flash - - -.”
MR TOBIN: 
“The commentary that’s on the screen at present and the photograph, Your Honour.”
(sic)
218	Ultimately, the email from the plaintiff to her solicitor, dated 28 August 2018, a photograph of the plaintiff, said to be taken on 14 July 2012, together with the commentary on the Facebook page, was tendered and marked as exhibit 5.
219	I set out the content of the Facebook page, being part of the exhibit 5 tender:
“Luzinda Gartmann
Oh hey dislocated shoulder …
[a photograph]
Marcus Gizmoed
Ha Ha Ha H yeah i no ived done the the same to my elbow …?  It hurts like hell?
6y like
[a photograph]
Daniel Hyatt
That’s gonna fuck you up for a while, i dislocated my knee eight weeks ago and I am still a cripple:/
6y like
[photograph]
Luzinda Gartmann
You should have seen it.  You would’ve died of laughter …  I slipped so bad on water on the floor at work and went head first.  Hurt sooo bad … my shoulder and neck are sore as.  Sooo embarrassing.
6y like
[photograph]
Luzinda Gartmann
… .”
(sic)
220	Immediately following the tender of exhibit 5, Leading Counsel for the defendant called for the production of the plaintiff’s Facebook entries from the date of the incident to the present.  Subsequently, both parties made various submissions in relation to such application and, ultimately, the Court ruled by way of a Ruling dated 9 November 2020, that counsel for the defendant were permitted to inspect all Facebook material from the date of the incident, up until when the plaintiff’s involvement with Facebook came to an end (subject to various conditions).
(c)	The radiology and other investigations
221	Between them, the parties tendered the following radiology and other investigations involving the plaintiff’s left shoulder, cervical spine and brain:
(i)	On 14 July 2012 (the day after the incident), Dr Malathi Srinivasan (a doctor at Medical One), referred the plaintiff for plain x-rays of her left shoulder and left elbow, which were collected on 16 July 2012.  In relation to the left shoulder, it has been reported by the radiologist on 16 July 2012 that:
“A small bone island is noted in the head of humerus.
 The visualised bones are unremarkable.
 The shoulder and acromioclavicular joints are congruent.
 The articular surfaces of head of humerus and glenoid are smooth.
 The subacromial space is preserved.
No soft tissue abnormality is demonstrated.
 Impression:
 Essentially a negative x-ray.”
In respect to the x-ray of the left elbow (lateral view), the radiologist reported on 16 July 2012 that:
“The visualised bones are unremarkable.  There is no evidence of cortical irregularity or periostitis at the medial or lateral epicondyles to suggest medial or lateral epicondylitis respectively.  The articular surfaces of humerus, radius and ulna appear normal.  No evidence of an elbow joint effusion is seen.”
(ii)	On 18 July 2012, Dr Malathi Srinivasan arranged for the plaintiff to undergo an ultrasound of the left shoulder.  The radiologist made the following findings:
“The long head of biceps appears normal. No fluid is seen in the biceps tendon sheath.
 The supraspinatus, infraspinatus, subscapularis and teres minor tendons are unremarkable with no evidence of tear or tendonitis.
 The subdeltoid bursa appears normal.  No impingement of the bursa or rotator cuff is seen on dynamic evaluation.
Impression:
Normal examination.  No rotator cuff or biceps tendon tear is seen.”
(iii)	On 3 August 2012, the treating general practitioner, Dr Ursula Roziel, arranged for the plaintiff to undergo a plain x-ray of the cervical spine.  The radiologist reported:
“CERVICAL SPINE
There is loss of the normal cervical lordosis with a very slight anterolisthesis at L3/4 which may well be positional rather than necessary due to a fixed abnormality.  Prevertebral soft tissues are normal and no fracture is identified.  Foraminal calibre normal at all levels on both sides.  If there are ongoing symptoms, particularly with any radiculopathy, CT or MRI is suggested for further evaluation.”;
(iv)	No doubt, as a result of the plain x-ray report, the treating general practitioner, Dr Roziel, arranged for the plaintiff to undergo a CT scan of the cervical spine on 15 August 2012.  The radiologist reported as follows:
“CT CERVICAL SPINE
Axial high resolution image acquisition with multiplanar reconstructions.  Slight reversal of normal lordosis is present.  
Normal appearances are present in relation to the vertebrae, intervertebral disc spaces, spinal canal and neural arches with no evidence of fracture, dislocation or other localised bone or joint abnormality.  
Paravertebral soft tissue space is normal.
CONCLUSION:  
No abnormality.”
(v)	On 7 November 2012, the treating neurosurgeon, Dr Caroline Tan, arranged for the plaintiff to undergo an MRI scan of the cervical spine, together with flexion and extension views of the cervical spine.  The radiologist reported as follows:
“MRI OF THE CERVICAL SPINE:
There is normal vertebral body alignment, height and bone marrow signal. No abnormal [sic] seen at the foramen magnum or craniocervical junction.  The atlanto-axial joints are normal.
There is no intervertebral disc pathology seen.  There is no spinal canal stenosis or foraminal narrowing.  The cervical spinal cord and nerve roots appear normal.  Facet joints are normal.  Paravertebral soft tissues are normal.
 Comment:
 No pathology seen in the cervical spine.
 CERVICAL SPINE (FLEXION & EXTENSION VIEWS):
 Lateral flexion and extension views of the cervical spine were obtained.
 In the extension view there is normal vertebral body alignment and lordosis.  In flexion, there is some slightly exaggerated and anterior translation of C3 on C4 but otherwise there is normal vertebral body alignment.”
(vi)	On 12 April 2013, Dr Caroline Tan arranged for the plaintiff to undergo plain x-rays of her cervical spine, including flexion and extension views.  The radiologist reported:
“There is normal vertebral body alignment and height. No disc space narrowing. No degenerative spondylosis. The vertebral bodies and its posterior elements have a normal appearance.  There are no signs of instability. There Is no cervical rib. There is no foraminal narrowing.”
(vii)	On 13 January 2014, the neurosurgeon, Mr Paul D’Urso, arranged for the plaintiff to undergo an MRI scan of the brain and an MRI scan of her left shoulder.  In relation to the MRI scan of the brain, the radiologist reported the following findings:
“No abnormalities of restricted diffusion.  Axial T2 flow voids are normal.  Cerebellopontine angles and internal auditory canals are normal.  Pituitary fossa and craniocervical are normal.
The visualised orbits, sinuses, mastoids and ears appear normal. No significant focal intra-axial lesions are seen.   The ventricular system and extra-axial CSF spaces appear normal.
COMMENT
Normal MRI of the brain.”
In relation to the MRI scan of the left shoulder, the radiologist reported the following findings:
“Alignment across the shoulder joint is anatomical. Bony marrow signal is normal.  Tendons and ligaments of the shoulder including the rotator cuff are normal.  There is only a sliver of fluid seen within the subacromial bursa with ? bursal thickening.  This may reflect a minimal and most subtle focus of underlying subacromial bursitis.  No further significant abnormalities are noted.  Glenoid labrum is intact.
 COMMENT
 Subacromial bursitis, no further significant abnormalities are noted.”
(viii)	On 2 September 2014, the treating pain specialist, Dr Khan, arranged for the plaintiff to undergo a further MRI scan of her cervical spine.  The radiologist reported the following:
“Clinical Notes
 Two years of chronic neck and left shoulder pain with progressive left arm weakness ?neural compression.
 Technique
 …
 Findings
 Loss of the normal cervical lordosis is seen.  The A/P alignment is within normal limits.
 No abnormality is demonstrated in the marrow.
 There is no focal disc degeneration, disc protrusion, cord compression or extrinsic cord abnormality and no significant foraminal compromise is seen.  Craniocervical junction is within normal limits.
 CONCLUSION
 Loss of the normal cervical lordosis is seen.  
 There is no focal disc degeneration, disc protrusion, cord compression or intrinsic cord abnormality.” 
(ix)	On 28 July 2015, Dr Khan arranged for the plaintiff to undergo an MRI scan of her cervical spine and left shoulder.  In relation to the MRI scan of the cervical spine, the radiologist reported the following findings:
“Loss of the normal cervical lordosis is seen and the AP alignment is within normal limits.  No abnormality is demonstrated of the marrow. There is no focal disc degeneration, disc protrusion, cord compression or intrinsic cord abnormality and no significant foraminal compromise is seen.
 The craniocervical junction is within normal limits.
 CONCLUSION
 No focal disc protrusion, cord compression or intrinsic cord abnormality is identified.”
In relation to the MRI scan of the left shoulder, the radiologist reported the following findings:
“Type 1 anterior acromion is seen. There is minimal capsular hypertrophy of the AC joint consistent with minimal previous injury. The subdeltoid bursa, rotator cuff, intra and extra-articular long head of biceps, subscapularis and labrum are all within normal limits.
There is no marrow or chondral abnormality.
CONCLUSION
Minimal AC joint degenerate change.  The rotator cuff and labrum are intact.”
(x)	On 29 June 2016, the treating general practitioner, Dr Ursula Roziel, arranged for the plaintiff to undergo an MRI scan of the cervical spine.  The radiologist reported the following findings:
“Vertebral alignment is normal.  Intervertebral disc space height is well maintained.  Bone marrow signal is normal.
 No fractures are demonstrated on the T2 fat saturated images.  There is no evidence of ligamentous disruption.
 The cervicomedullary junction and cerebellar tonsils are normal in position and appearances.  At C2/3, C3/4, C4/5, C5/6, C6/7 and C7/T1, the posterior contours of the discs are normal.  The central canal and neural exit foramina are normal in dimension.
 The cervical cord demonstrates normal contour and signal intensity throughout the range of the study.
Impression:
 Normal study. No fractures are demonstrated. No evidence of ligamentous disruption.  No evidence of disc herniation or neural impingement.”
(xi)	On 30 June 2016, the leading general practitioner, Dr Roziel, arranged for the plaintiff to have an ultrasound and x-ray of her left shoulder.  Such studies were collected on 5 July 2016 and on 7 July 2016, the radiologist reported the following findings:
“Clinical Details:
Restricted movements.  Postosteoarthritis.  Tendon/ligament injury.
ULTRASOUND LEFT SHOULDER
Findings:
The left supraspinatus tendon shows a 6 x 5mm anterior partial-thickness articular surface hypoechoic area, likely a small partial tear or focal tendinosis.
Rest of the rotator cuff tendons appear intact and normal.
Subacromial bursa is mildly thickened.  
On dynamic assessment, restricted abduction noted, however, no impingement demonstrated.
AC joint appears unremarkable.
Region of interest in the posterior shoulder appears unremarkable.
Conclusion:
Partial tear/focal tendinosis involving the articular surface of the anterior supraspinatus.  Mild subacromial bursitis.
X-RAY LEFT SHOULDER
Glenohumeral joint is enlocated.
Small sclerotic focus seen in the head of humerus is likely a bone island.
AC joint appears enlocated.
The left humerus shows normal outline in density without any focal abnormality. 
Elbow joint is enlocated and normal.”
This radiological study – particularly the ultrasound of the left shoulder – was relied on by the plaintiff and was specifically tendered and marked as exhibit 10.
(xii)	 On 5 September 2016, the orthopaedic surgeon, Mr Rohan Price, arranged for the plaintiff to undergo an MRI scan of her left shoulder.  The radiologist reported the following findings:
 “Clinical History
Atypical pain from neck to hand for 4 years, normal cervical spine MRI.
Techniques:
…
Findings:
Acromioclavicular joint demonstrates normal morphology. No osteoarthritic changes are seen in the joint. The acromion shows horizontal orientation and concave under surface (Type 2 configuration). No subacromial spur is seen.
There is mild diffuse hyperintensity and thinning of the supraspinatus tendon suggestive of chronic tendinosis and attrition due to partial tear. There is longitudinal interstitial hyperintensity in the infraspinatus tendon, best seen in axial views (series 11; images 11, 12), which suggests partial interstitial delamination tear. The subscapularis and infraspinatus tendons appear normal.  There is mild deltoid bursitis.
The glenohumeral joint demonstrates normal morphology.  There is no significant joint effusion. No osteoarthritic changes are seen. There is mild focal hyperintensity on fat-saturated images in the anterior part of head of humerus, deep to the oblique segment of long head of biceps tendon, suggesting biceps chondromalacia.  The biceps tendon is however normal in thickness and echotexture.
There are no signs of adhesive capsulitis.  
The acetabular labrum is intact and demonstrates normal signal intensity.
 Impression:
 1.	Mild hyperintensity and thinning of entire supraspinatus tendon, likely a sequela of chronic tendinosis and partial tears.
 2.	An interstitial determination tear in infraspinatus tendon.
 3.	Mild subdeltoid bursitis.
 4.	Probable biceps chondromalacia.” 
(d)	The medical and like treatment of the Plaintiff
222	Pursuant to exhibit 6, those acting for the plaintiff have set out a list of witnesses – most of whom are medical witnesses they seek to rely on.  Initially, I will refer to those medical and like witnesses who have treated the plaintiff:
(i)	The plaintiff relies on a medical report from the consultant physician, Professor Edward Janus, dated 30 May 2011.  In his report dated 30 May 2011 – which predates the incident – Professor Janus notes that the plaintiff, together with her mother, attended him on 30 May 2011.  Furthermore, he agreed that she had a “post viral syndrome”.
In particular, Professor Janus records the following history:
“Luzinda is usually well and last year, in November 2010, while she was doing V.C.E she developed swollen neck glands, a migraine type   headache, palpitations, a sore throat, as well as fatigue and dizziness.  She made a slow recovery from this and was told that she had glandular fever and subsequent live function tests were abnormal in February, showing that she, in fact, had hepatitis with the glandular fever.  The liver function tests had normalised by April.
 She has gradually  improved  with less  fatigue  and less  of  the  frontal headaches, which last about 30 minutes, but she still sleeps a lot and she is tired.  Part of the sleeping  is  due  to  the  fact  that  she  is  on Endep 12.5mg/daily over the last few weeks because of pain in the chest.  In the last few weeks she has, in particular, had pain in the  lower ribs, more commonly on the left but sometimes on  the right, usually at the back  but  sometimes at the front of her chest.  This is worse coughing or deep breathing  and there has also been some discomfort in the left shoulder and the left palm.  In retrospect she has had these symptoms since the onset of  her  illness  in November  last year but she  feels  that they  are  worse now.  Her  recent chest x ray, upper .abdominal ultrasound and  CT of the thoracic spine are all normal, as was an echocardiogram while a halter showed some .sinus tachycardia at the time when she had some symptoms but otherwise was normal.”
Examination at that time revealed a “fit, health looking young girl with no enlarged lymph glands with a heart rate of 84 and regular, blood pressure 119/79 with normal heart sounds, no murmurs a clear chest and tenderness over the lower rib margins and over the liver area, although the liver itself was not enlarged or palpable”.
Ultimately, Professor Janus stated:
“I agree that she has a post-viral syndrome and after EBV infections, particularly if there, has been hepatitis, there is often a very delayed recovery.  As her liver function tests are normal, I have suggested she could take paracetamol … 4 times a day to see if that relieves her lower rib chest pain, which l think is musculoskeletal.  She has taken some paracetamol but only a couple of tablets now and then rather than taking them more regularly to see if these can abate the pain completely.
 I have suggested that perhaps she could stop the Endep, if it is making her that sleepy, as that probably isn’t helping.  I have also advised her to become gradually more active.  She is, in fact, spending a few hours a day working in her mother’s office.  I have not arranged to see her again but have given her positive encouragement that her symptoms wilt clear up as they are already improving slowly but surely.   … .”
(ii)	The plaintiff relies on a number of reports (some of which are referrals to other practitioners) from her treating practitioner, Dr Ursula Roziel.  As stated in her evidence, Dr Roziel has been her long-term general practitioner, situated at the Medical One Clinic situated at Taylors Lake.  The defendant also subpoenaed the medical records from Medical One and have tendered those records.
The medical records of the clinic do record that the plaintiff attended the clinic at about 10.44am on Saturday, 14 July 2012 (the next morning after the incident) and attended Dr Malathi Srinivasan, which seemingly would be the doctor who she saw when she attended the clinic with her mother in the morning (not the attendance at the clinic with Ms LaRocca).  Dr Srinivasan records:
“[F]all at work last night
 The patient Report WorkCover was produced, slipped and fell down at work last night works as a waitress and the floor was wet ?landed on L shoulder c/o pain L collar bone nad shoulder ?had subluxation L shoulder felt something slipping out and in for x-ray
 x-ray no obvious # for us / shoulder in pain still.”
 (sic)
Dr Srinivasan referred the plaintiff for an x-ray of her arm, clavicle and  shoulder and an ultrasound of her left shoulder, all of which has been referred to in the pathology reports.
The records also record that the plaintiff attended on her general practitioner, Dr Roziel, on Friday, 20 July 2012 (one week after the incident), wherein the clinical notes recorded the following history:
“wk after fal at work on the 13 th July 2012, waitress slipped and fell, possibly hurt L arm shoulder over a table
 oe 3x4 cm bruise over L arm shoulder
 feels L pain tingling
 post neck tapazoids spasm
 US – no lg injury Lshoulder
 xray – no # no disc location
 us – no leg injury
 P analgesia
 physio for mobilisation
 neck jarring
 The patient ReportWorkCover was produced.
 # not levler
 Rx: Voltaren Tablets … one 3 times a day for 2 weeks after meals
 Rx: Valium Tablets … one at night for 5 nights
 Rx: Panadol Back + Neck Pain Relief Caplets … two lds pn
 Rx: Levlen ED Tablets … 1 daily.”
(sic)
I refer to the report from Dr Roziel dated 11 September 2013 addressed to the solicitors for the plaintiff.  She states in that report:
“Miss Gartmann slipped and fell while working in the restaurant, possibly hurt L anterior shoulder over a table.
 One week after the fall Miss Gartmann presented to my practice complaining of pain and bruising in the left shoulder and left neck. She felt left palm tingling.
 On examination there was 3x4 cm bruise over left ant shoulder, posterior neck trapezoids spasm.
 Ultrasound and xray revealed no ligaments injury, nor fracture or dislocation to L shoulder.  She was treated with valium, Voltaren and Panadol.
 Physio was recommended for mobilisation and neck jarring.
 Unfortunately the L shoulder pain was not improving, in fact Miss Gartmann developed cervicogenic headache.  I have to mention that prior to the incident she was a headaches sufferer.
 The analgesia was upgraded to Tramadol 400mg SR twice daily voltaren 50 mg three times daily, panadol, Nexium was used to stomach protection,
 Neurosurgeon became involved with review on the 11 Sept 2012. MRI of neck was arranged conforming no abnormalities.  She was advised to start hydrotherapy apart her intense daily physiotherapy.
The ongoing deterioration warranted pain management clinic referral.
 Miss Gartmann received on the 5 th Jan 2013 steroid injection in the her neck recommended by neurosurgeon. The neck pains, headaches and L arm pains were persisting after.  She was put on morphine derivative TARGIN.
 Miss Gartmann was offered psychological counselling in order to help with her condition.  Her study was interrupted as she lost the ability to concentrate and felt tired and affected by strong medications. Subsequently Miss Gartmann ceased her recommended medications and undertook trial of alternative medications prescribed by naturopath.  I support her decision to try various salts of magnesium and others out of desperation since the efforts of resolving her symptoms failed so far.
 I support Miss Gartmann is reimbursed for the cost of the medicines prescribed by naturopath,
 I also sympathise with Miss Gartmann’s decision to cease traditional analgesia for some time.”
 (sic)
I also refer to a document completed by Dr Roziel on 9 May 2016:
“1.	Please outline the worker’s clinical progression and symptoms since this Examination on the 11 January 2016. If there has been a deterioration, what has been the cause for this?
Ms Gartman[n] attended 2 weeks internship with Herald Sun (Feb 2016).  Worked there as a journalist.  She loved and enjoyed her experience however re[a]lised that this job requires long hours, shift work and unpredictable hours, weekend work and work away from home.  Ms Gartman[n] became more anxious before starting the internship.  Ms Gartman[n] suffers with L arm chronic pain syndrome. Stress and work affects her L arm + neck symptoms.
2.	Is the worker currently engaged in paid employment or an internship as previously indicated?
As for now May 2016 Ms Gartman[n] does not work.  Is not engaged in paid employment nor voluntary work.  Her parents provide a cleaner
3.	Are you currently prescribing the worker any anti-depressant or anti-anxiety medication? If so, please confirm the medication and dosage
Yes Cymbalta 30 mg day since Dec 2015.  In Dec 2015 Ms Gartman[n] attended occupational therapy.  Doctor assessed anxiety (depressed).  She went … seeing Dr Khan (pain management specialist) who suggested weaning off Lyrica (Dec 2015) Attended over last year multiple psychologist sessions.  Graduated in Dec 2015 (media).   I think further counselling will help Ms Gartman[n].”
(sic)
(iii)	The plaintiff relies on the reports of the neurosurgeon, Dr Caroline Tan.  It would appear that Dr Tan initially saw the plaintiff on or about 11 September 2012 on referral from the general practitioner, Dr Roziel.  At that time, she obtained a history of the fall at work on 13 July 2012, striking “her left shoulder and neck”.  Dr Tan notes:
“… It seemed like more of a shoulder injury at first and so early treatment focussed on her shoulder with physiotherapy as she was diagnosed with a tear of her left acromioclavicular joint.  Lately she has been getting a lot of ‘random pulsating’ headaches.  The headache is bilateral, symmetric and from the occiput to her eyes. Sometimes these headaches are so bad that she needs to close her eyes and her vision can go a bit black but she does not see flashes or wavy lines.  There has not been associated vomiting.  Each headache may last 10-30 minutes.  The headaches can be triggered when the physiotherapist palpates her neck.  Her physiotherapist believes that she might also have a neck injury.  Soon after she fell, she experienced intermittent pain shooting down her upper limb to the whole hand.  She also had really severe pins and needles in the left hand and a perception of weakness of the hand.  She denied leg symptoms except that her left leg falls asleep if she sits for too long.  She did not feel that she had lost any dexterity.”
Examination at that time revealed that her range of neck and glenohumeral movements were good, although she complained of pain in her neck on rotating to the left side.  The plaintiff’s upper limb tone was normal and deep tendon reflexes symmetrically depressed.  There was mild weakness of the left shoulder, also of the biceps and triceps, and wrist flexes on left.  However, she had normal power on the right.  There was normal light touch sensation bilaterally.  She had no Hoffman’s sign and finger jerks could not be elicited.  Her lower limb reflexes were symmetrically normal, as was the motor sensory examination.
Dr Tan arranged for the plaintiff to undergo an MRI scan of her cervical spine (which is referred to in the series of radiological reports).  
In referring her to a physiotherapist, by letter dated 21 November 2012, Dr Tan states that, while the plaintiff:
“… does seem to have mild weakness and mild diminution of touch sensation in her left upper limb, her cervical MRI indicates no evidence whatsoever of any disc lesion and no nerve compression.  The only radiological abnormality is slight subluxation of C3 on C4 on flexion-extension Xrays, the significance of which is uncertain. She has tenderness over her mild-cervical facet joints so I think she may well have cervicogenic headaches.”
(iv)	The plaintiff also relies on the report from the physiotherapist, Mr Justin McEvoy, dated 26 November 2012, together with a physiotherapy management plan, dated 22 November 2012; Neck Disability Index, dated 22 November 2012 and Oswestry Low Back Pain Scale, dated 22 November 2012.  The plaintiff was referred to Mr McEvoy by the neurosurgeon, Dr Tan, and on the basis of the documentation, initially saw Mr McEvoy on 22 November 2012.
According to the report of Mr McEvoy, dated 26 November 2012, the plaintiff gave a five-month history of neck pain and headaches.  Examination revealed:
“… a great deal of tenderness and tight muscles at the sub occipital area bilaterally, as well as tight and tender para vertebral muscles including upper traps and SCM”.  
Mr McEvoy noted that the plaintiff reported more headaches and pain after being massaged and mobilising her facet joints.  Mr McEvoy suggested a facet joint injection may assist in reducing pain and the secondary muscle tightness.
In the Physiotherapy Management Plan, dated 22 November 2012, Mr McEvoy sets out his “diagnosis” to be a:
“Torn acromioclavicular joint
 Strained neck and facet joints.”
and that the area to be treated was the “neck/shoulder”.
It is to be noted that the Oswestry Low Back Pain Scale, dated 22 November 2012, would suggest that the plaintiff was also having significant symptoms in her lower back at that time.  When asked to describe the “pain intensity”, number 4 is marked, which reads, “the pain comes and goes and is severe”.
(v)	The plaintiff also relies on the reports from the interventional and pain management physician, Dr Paul Verrills, dated 25 June 2013 and 19 August 2013.  The plaintiff was referred to Dr Verrills by Dr Caroline Tan.  In the initial letter back to her dated 25 June 2013, Dr Verrills confirmed that he was seeking approval to perform other cervical medial branch blocks with a view to a radiofrequency neurotomy.  He noted at that time, that the plaintiff did have maximal tenderness at the C2-3 joint more than C3-4 and this certainly fits with the neuro-anatomy of the cervical trigeminal nucleus referring pain to the head as well as the scientific literature demonstrating that, following trauma, the majority of head pain that comes from the neck arises from the C2-3 joint.
In his later report (19 August 2013), Dr Verrills reports to a representative of the insurer of the defendant that the plaintiff’s “recent bilateral third occipital nerve and C3/4 medial branch blocks were ‘negative’”.  At that time, he recommended that the plaintiff proceed with bilateral atlanto-axial (C1-2) interarticular injections.  The operation report of Dr Verrills in respect to the procedure undertaken on 25 July 2013, was tendered by those acting for the plaintiff and marked as exhibit 12;
(vi)	The plaintiff also relies on reports from the physiotherapist, Mr Stephen Craig Phillips, from DMA Clinical Pilates, dated 1 July 2013 and an associated report from the musculoskeletal physiotherapist, Mr Jon Snowsill.
The plaintiff was referred to Mr Phillips by the neurosurgeon, Dr Caroline Tan, and was initially seen on 19 April 2013. 
Mr Phillips notes that when first seen, the plaintiff had been receiving standard physiotherapy treatment for some six months with minimal change in her symptoms.  On a neck disability index, she had not recorded any effective change during that period in which treatment involved joint mobilisation, stretching and standard exercise approaches.
Mr Phillips notes that when the plaintiff arrived at the clinic, the plan was to progress her treatment to the next level.  Firstly, with a self-management home-based exercise program and, accordingly, was seen by Mr Jon Snowsill, senior physiotherapist, over a three-week period.
On review at the three-week mark, there was no change in her outcomes, so after discussion with Ms Caroline Tan, there was proposed a more specific program of intense exercise management three times per week over a six-week period.  Ms Phillips considered this program to be somewhat effective and recommended that the approach go on for another six weeks.
Mr Snowsill reports that the plaintiff first saw him on 19 April 2013 and a clinical examination at that time revealed that she had “excellent neck mobility in all directions,” although her neck pain was reproduced at the extremes of flexion and extension.  Ultimately, he was of the opinion that slow improvement of the plaintiff and poor response to physical treatments likely arise from an unstable cervical segment, and the increased mobility seen on functional neck x-rays at the C3-4 segment, “could well explain” her symptoms.  Also, her lack of response to cervical facet joint injections would suggest discogenic pain.
Mr Snowsill commenced the plaintiff on a limited home-based stabilising exercise program;
(vii)	The plaintiff also relies on reports from the neurosurgeon, Mr Paul D’Urso, dated 20 November 2013 and 12 February 2014.  Mr D’Urso saw the plaintiff on referral from her general practitioner, Dr Roziel, and consulted with the plaintiff on 18 November 2013.  The plaintiff gave a history that, following the incident, she immediately experienced left shoulder pain, wore a sling for approximately a month, and when she came out of the sling she noticed her left arm was weak and a little paraesthetic, particularly in the forearm and fingers.  The plaintiff described spasms of pain in the left arm and also reported chronic headaches since the incident, which can be up to 8/10.
Mr D’Urso obtained a “medical history” that the plaintiff had a cholecystectomy “recently” and was then currently studying at the university.  Examination at that time showed the plaintiff’s left arm was “globally weak”, with “sensation” altered in the left forearm.  The plaintiff’s reflexes were diminished, yet symmetrical, in the upper limbs, and normal in the lower limbs.  Plantar responses were down going.  Hoffman’s reflex was negative and cervical range of movement was satisfactory.
When he first saw the plaintiff, he had available the x-ray taken on 12 April 2013, which demonstrated some minor listhesis at C3-4 and C4-5.  Furthermore, he had available the MRI scan undertaken on 7 November 2013 which, according to him, showed some slight loss of lordosis, but otherwise appeared normal, with no evidence of any nerve root compression at any level.  Mr D’Urso arranged for the plaintiff to have a further MRI scan of the brain and left shoulder, as well as some EMG/nerve conduction studies of the left lower limb.
In his report dated 12 February 2014, Mr D’Urso noted that the MRI scan of the brain, which was performed on 30 January 2014, was reported as normal, the MRI scan of the left shoulder performed on 13 January 2014 demonstrated some minor subacromial bursitis and the EMG/nerve conduction studies performed on 17 January 2014, were reported as normal.
In his report, Mr D’Urso summarises his findings as follows:
“Luzinda Gartmann presents with a history of chronic occipitocervical headache, neck pain, left shoulder and arm pain and weakness.  She relates this to a fall that occurred in the workplace on 10 July 2012. A thorough investigation has been carried out and no significant organic pathology has been identified other than some minor subacromial bursitis. Conservative management should be continued with emphasis on physical therapy, simple anti-inflammatory and analgesic medication and psychological counselling.  Luzinda does not have capacity for pre-injury employment as a waitress but she would appear to have capacity for light part-time employment within restrictions mentioned in the text above.  The prognosis of the condition should be satisfactory.”
The reference to the capacity for light part-time employment was on the basis that she avoids any repetitive or awkward neck movements and should not be required to lift weights above her shoulders or perform repetitive movements of the upper limb;
(viii)	The plaintiff also relies on the reports from the treating psychologist, Ms Dayana Noor.
The plaintiff was referred to Ms Noor by her general practitioner, Dr Roziel, and her first counselling session was on 24 June 2013.  As at the time of writing her last report dated 16 July 2020, the plaintiff had most recently attended on 3 June 2020.
The plaintiff “reported no history of psychiatric condition” prior to the incident.  The plaintiff gave a history that she suffered injury to her shoulder/neck and that she had been seeking various treatments via her general practitioner and other specialists.  She stated that she continued to experience pain, which impacted on her daily functions, mood and her ability to return to work.  She noted that she had been diagnosed with Chronic Regional Pain Syndrome.
Ms Noor set out the various unpaid work undertaken by the plaintiff and clearly enough, at the time of her last report, was unaware that the plaintiff had commenced work with The Les Twentyman Foundation – although she noted that she had commenced unpaid/volunteer work in early 2019.
Ms Noor listed the following symptoms as those complained of by the plaintiff:
•	Severe Insomnia
•	Feelings of apprehension or dread
•	Trouble concentrating
•	Feeling tense and anticipating the worst
•	Depressed mood
•	Feeling like her mind has gone blank
•	Retreating from social interactions
•	Agitated mood
•	Anxiety
•	Lethargy and pain
•	Ruminations
•	Sense of hopelessness; and
•	Poor focus.
Ms Noor diagnosed the plaintiff to be suffering from an Adjustment Disorder with Depressed Mood, Anxiety and Stress.  Ms Noor identified the stressors to be “common pain: due to shoulder/neck injury sustained while at work which impacted her daily function”.  She also noted that there were stressors due to vocational issues and that she has been unable to work due to the pain condition and that there was financial stress due to unemployment.
Ms Noor also identified further stressors involving the following matters:
•	Best friend, Jay – died on 31 July 2014
•	Aunt Anna (in Sweden, father’s sister) – died in August 2014
•	Cousin, Sam, thirty-four – suicided on 31 August 2015
•	Uncle Paul (mother’s older brother) – died on 12 August 2016
•	Ron (Lauren’s father) – died from cancer on 21 August 2017
•	Robbie (fifty-eight, family friend) – died in February 2019
•	Samantha (sister to her) – died on 27 August 2019
•	Paternal uncle (sixty-seven) – died on 4 January 2020 from a heart attack
•	Father of the plaintiff – diagnosed with cancer and currently undergoing treatment.
Ms Noor also considered other stressors to be:
•	Addiction to opioids and attending a detoxification program in 2014
•	Surgery for the removal of her gallbladder
•	Pancreatic condition in February 2018; and
•	Fracture of her leg in June 2018.
Ms Noor states that she has utilised evidence-based therapies such as the acceptance of commitment therapy, cognitive behavioural therapy, solutions-based therapy and interpersonal therapy with the plaintiff.
In response to various questions posed, Ms Noor stated:
iii. 	Current capacity for employment based on her psychological condition
…
Ms Gartmann has no capacity for full time employment for work that is equivalent to her pre-injury state, due to her severe pain condition which in turn affected her mental state and daily functions.
 Ms Gartmann has no capacity for part-time employment for work that is equivalent to her pre-injury state, due to her severe pain condition which in turn affected her mental state and daily functions.
 Ms Gartmann has limited capacity for flexible hours and part-time employment for work that is modified to accommodate her current conditions (severe pain condition which in turn affected her mental state and daily functions).
 Ms Gartmann has made several attempts to undertake voluntary and paid employment in the past. While engaged in those employment or unpaid volunteer positions her conditions were heavily accommodated by the organisations that employed her. She had been highly unreliable with her attendance at work as she cannot predict her mental state and pain level upon waking up in the morning.  Since her injury in 2013, Ms Gartmann has not been able to sustain her employment beyond a few months due to her conditions. Therefore, her capacity for any type of employment in the competitive open market would be severely limited.
 iv.	The effect of her injury on her domestic, recreational, social and personal activities
 Ms Gartmann reported that she is able to take shower on her own but has difficulty with raising her left arm which impacted on her ability to wash, dry and comb her hair.
 Her pain condition also affected her ability to participate in family and social activities.
 She reported that although she made an effort to attend social events (pre-COVID pandemic and restrictions in Victoria) when invited she often have to leave early or even ended up cancelling at the last minute due to her pain condition.  Ms Gartmann reported keeping very few trusted friends.  This is due to inability to participate in socialising directly due to her pain condition and her poor mental status.
 v.	…
 vi.	Proposed future treatment plan
 …
 Ms Gartmann would benefit from continuing treatments (psychological therapy, psychiatric consult, rehabilitation services, pain management).
 Psychological therapy would allow for reflective discussions in a safe environment so as to assist Ms Gartmann in developing suitable goals and strategies in making positive changes in her life and towards improving her self-esteem and confidence, and develop realistic life goals. Future counselling sessions will continue to address the fluctuating levels of depression, anxiety and stress, to build a healthier/ authentic self-concept, to further clarify her values and to assist her in constructing goals to live by those values.”
(ix)	The plaintiff also relies on a number of reports from the consultant physician, Dr Peter Blombery.  The plaintiff consulted with Dr Blombery, on referral from her general practitioner, Dr Roziel, initially on 15 October 2014 but also on 13 November 2014, 21 January 2015, 18 March 2015, 1 April 2016, 21 June 2018 and 29 June 2020.
When initially seen on 15 October 2014, the plaintiff gave a history of falling onto her left shoulder on 10 July 2012, which caused a “dislocation” and the shoulder was relocated at a local clinic, causing her to wear a sling for a period of a month.  The plaintiff gave a further history that she then noted the onset of pain in her left neck, particularly after the sling was removed, and she had quite severe ongoing pain in her neck thereafter, although her shoulder pain improved markedly.  Although she has had “physiotherapy”, she complained of losing a lot of strength in the left arm.  She noted that her arm becomes numb, and she also has “quite marked coldness and blueness of the left arm intermittently”.
Dr Blombery noted that she had commenced Targin approximately eighteen months ago and was also taking Oxycodone, ultimately leading to a detoxification at the Epworth Hospital under Dr Kahn.
At the time of the initial consultation, she was complaining of pain in the neck and headache and was concerned by the fact that “she is not able to use her left arm”.
She also gave a history that she had “just obtained a job as a receptionist for a period of ten weeks”.
She further gave the history that “in the past,” she has had a cholecystectomy and appendicectomy.
On examination, there was a full range of movement of the left shoulder, but she was quite tender over the neck and a little over the trapezius muscle.  The left hand was 1.5 degrees cooler than the right and redder in appearance, as was the forearm. Reflexes were intact and symmetrical but reduced and there was a significant reduction in sensation in the left arm.  Power of hand grip on the left side was 2 kilograms versus 30 kilograms on the right side.
Dr Blombery diagnosed her with Complex Regional Pain Syndrome Type I affecting the left arm and also there may have been some clinical injury to the brachial plexus, although there was no hard evidence of this.  Dr Blombery ordered a gradually increasing dose of Lyrica and a reducing course of oral prednisolone.  When seen on 13 November 2014, there had been “some improvement transiently” with the prednisolone when it was at its highest does – however, as the dose was reduced, the benefit was less.  It was also noted that the plaintiff had obtained a job recently, working at Werribee Racecourse doing administrative work, and seems to be coping with this reasonably, although she said her pain had increased somewhat.
When seen on 19 March 2015, Dr Blombery records that the major problem for the plaintiff was that she has a “relatively useless left arm” and this appears to be due to “central disuse rather than to any local pathology”.  He also noted that she had some mirror box therapy whilst in the Epworth previously and this has had some potential benefit, and she was requested by Dr Blombery to attend Dr Kahn again, the pain management specialist.
Those acting for the plaintiff arranged for Dr Blombery to re-examine the plaintiff on 1 April 2016 and in his report of the same date, he set out the past history and treatment and noted that at the time of his examination on 1 April 2016, she had tried to wean off the Lyrica but that increased the pain.  In particular, Dr Blombery noted that the Lyrica also stopped the spasm, and although she had reduced strength in the left arm, if she lifted something a little heavier than usual she developed shooting pains in the left arm.
Again, Dr Blombery noted that the plaintiff had graduated at the end of 2015 with a Bachelor of Communication and was now a “qualified journalist” and was looking for part-time work.
On 1 April 2016, the plaintiff said that the left arm became “blue and cold” but there was no excessive sweating.  
In his report of 1 April 2016, Dr Blombery states:
“Ms Gartmann continues to have features of complex regional pain syndrome type I affecting the left arm.  She does not use the arm very much and she has quite a strong motor component of complex regional pain syndrome type I with lack of function of the arm. However, there appears to have been some improvement since I first saw her.  She needs to stay on Lyrica for the time being and to have movement of the left arm continued.
 I received a communication dated 30 March 2016 from Dr Khan who was trying to reduce her dose of Lyrica and was encouraging also to return to work.  She was also having acupuncture.
 In regard to prognosis, it has now been almost four years since the injury.  Her symptoms are improving a little but it is likely that she is going to be left in the long term with a significant disability affecting her left arm.  Fortunately, she is right hand dominant.  She will be able to do part-time work using mainly her right arm in activities such as journalism which does not involve heavy lifting at all.
 The diagnosis of complex regional pain syndrome type I is an organic disorder of pain nerve pathways and not a psychological disorder.  I disagree with Dr Karna who in the initial report dated 21 December 2015 said on page four that ‘I do not believe that she has complex regional pain syndrome but rather simply a chronic regional pain syndrome being psychogenically driven’.  
 I have noted that she has a significant reduction in temperature on the two occasions when I have measured it and I also noted when I first saw her, there were differences in colour of the left arm compared to the right arm.  She therefore fulfils the diagnostic criteria for complex regional pain syndrome type 1.
 I agree that she tends not to use the left atm which is exacerbating the problem to some extent but this is not under her conscious control.  This is quite often seen in patients with this disorder because of concern about exacerbating their pain with use of the arm.  She should be encouraged to use the arm as much as she can as this will help to return it towards some degree of normality in the future.
 In regard to your particular questions:
 1.  	Ms Gartmann’s current condition relating to the injury she suffered on 13 July 2012. See above. Complex regional pain syndrome type 1 complicating shoulder injury to the left shoulder and a possible partial dislocation.
 2. 	Your opinion as to whether Ms Gartmann continues to suffer complex regional pain syndrome and, if so, details of same.
She continues to suffer complex regional pain syndrome type I as outlined above.  The clinical features of this disorder typically fluctuate from time to time but certainly when I have seen her on at least two occasions and have measured the temperature of her arm, it has been different to the right arm.
 3.  	Ms Gartmann’s whole person impairment assessment according to the AMA Guides for the Evaluation of Permanent Impairment (4" Edition) pursuant to the Accident Compensation Act 1985 in respect to her claimed injury.
 As she has a full range of movement of the left shoulder, she has no impairment using the AMA ‘Guide for the Evaluation of Permanent Impairment’ (4th Edition).
4. 	Prognosis: …
Her prognosis for recovery is moderate to poor.  There will hopefully be some improvement in her arm in the future but she is almost certainly going to be left in the long term with a significant disability affecting the left arm.
5. 	Gallagher Bassett has requested that Ms Gartmann undergo nerve conduction studies.
		Please advise whether, in your opinion:
		(i) 	Ms Gartmann requires nerve conduction studies; and
	(ii) 	whether the findings on a nerve conduction study are determinative of a patient suffering complex regional pain syndrome.
 I do not think there is any indication for her to have nerve conduction studies.  Nerve conduction studies are not used to make a diagnosis of complex regional pain syndrome type 1.  The diagnostic criteria are clinical.
 In regard to your comments about the left shoulder injury versus the left arm injury - It appears that when she had the first injury she may have dislocated her shoulder and that has then resulted in the changes that are involving the entire left arm.  The left shoulder injury therefore triggered the development of complex regional pain syndrome type I affecting the left arm.”
When seen on 21 June 2018, Dr Blombery confirmed his diagnosis of Complex Regional Pain Syndrome Type I which was precipitated by the “dislocation” of her left shoulder.  However, he had available at that time, an MRI scan of the cervical and shoulder performed on 28 July 2015.  He commented that:
“… most of the aftermath [of the dislocation] has resolved from the pathological point of view.  She has ongoing sensitisation of the pain/nerve pathways which is the essence of excessive pain that patients with CRPS experience.”
Dr Blombery saw the plaintiff for the last time on 29 June 2020.  At that consultation, the plaintiff complained of pain in her left foot, which kept her awake from sleep.  According to Dr Blombery, the foot was very sensitive to light touch, and pain radiated from the foot up to below the knee, causing her to be woken from sleep by pain on a few occasions.  Furthermore, the plaintiff gave a history that her left arm continued to be “painful but stable”.  She noted that when she tried to use it “when she could”, she noted the left arm became cold and blue, particularly in the cold weather – there was also numbness and tingling in the left arm, and there was intermittent tremor in the left arm.  According to the plaintiff, she could not open jars with her left arm because of the weakness in the arm.
Examination, at that time, revealed the plaintiff to be “quite tearful” during the course of the consultation and she was not able to abduct her shoulder when taking off her jumper.  The left hand was “bluer than the right” and 5.7 degrees cooler than the right.  She was exquisitely tender on pressure around the left neck and over the left trapezius, but there was less tenderness down the left arm.  In the left shoulder, there was 80 degrees of flexion and 80 degrees of abduction with markedly reduced external rotation, but reasonable internal rotation.
In the right foot, there was no difference in temperature or colour from the left foot, but she was tender on pressure over the right foot, with a 16-centimetre scar over the dorsum of the foot.  There was a reasonable range of movement of the foot and ankle.  There was a moderate tremor of the right foot.
Amongst other matters, Dr Blombery expressed the opinion that the plaintiff has Complex Regional Pain Syndrome Type 1 elsewhere – Dr Blombery was of the opinion that the plaintiff’s complex regional pain syndrome affecting the arm has now been present since 2012, and in the foot since 2018, and that it was “unlikely there is going to be any significant improvement in the foreseeable future in these problems”.  According to Dr Blombery, the injuries have had a very marked effect on her ability to be able to fulfil her chosen professional career, as well as her domestic and recreational activity;
(x)	The plaintiff also relies on the reports of the consultant physician in rehabilitation and pain medicine, Dr Saleem Khan, who consults at the Epworth Rehabilitation Hawthorn.  The general practitioner, Dr Roziel, referred the plaintiff to Dr Khan for initial pain assessment and management at the Epworth Richmond Hospital, and the plaintiff was initially seen in the outpatient clinic on 5 June 2014.  
At that time, Dr Khan obtained a history of the fall at work which “apparently dislocated her left shoulder”.  The plaintiff gave a history she attended her general practitioner, who reportedly “relocated the shoulder” and placed her arm in a sling for six weeks, during which time she developed constant neck and occipital pain.  After the sling was removed, her cranial and neck pain continued. 
At the time of the first consultation, the plaintiff was taking Targin, Panadol and Levlen.  A past history was given as including glandular fever, appendicectomy and cholecystectomy.
At the first consultation, the plaintiff was complaining of cranial pain, which occurs in the occipital frontal region, with no associated nausea, but does complain of “associated dizziness”.  Furthermore, the plaintiff complained of pain at the superior end of the neck near the base of the skull, with associated occipital headaches.  She denied any radiation of pain inferiorly or shoulder pain, but reported objective hand weakness, numbness and spasms.  Furthermore, she recorded a loss of hot and cold sensation in her left arm.
At the time of her first consultation, Dr Khan recommended that she be admitted to the Epworth Hospital in Richmond for a two-week period in order to provide IV Ketamine-associated opioid detoxification and rationalisation of her analgesics.
The plaintiff was admitted to the Epworth Rehabilitation Hospital in Richmond under the care of Dr Khan from 1 December 2014 to 12 September 2014.  On admission, the plaintiff reported “prominent neck pain with referral to the left shoulder”.  She also reported “left arm weakness”.  Dr Khan noted that the MRI scan of the cervical spine was essentially normal.  Furthermore, he notes that the plaintiff underwent detoxification under cover of IV Ketamine by infusion and had a prominent withdrawal syndrome marked by nausea, vomiting and bed rest.  Because of this, she was unable to “participate meaningfully in rehabilitation, but was weaned off the Targin.  At discharge, she was on medications of Panadol Osteo and Nexium.  
The plaintiff was reviewed by Dr Khan on 10 June 2015, at which time she complained of severe neck pain which radiates down her left shoulder into the left arm and fingers of the hand.  The plaintiff described the pain as “aching and deep”, with “burning with tingling and pins n needles in the fingers of the left hand”.  The plaintiff also complained that the left arm feels “subjectively weak”.  Such pain is increased by lifting, general overuse of the left arm and in cold weather, but it is improved with heat treatments and warmer weather.  Dr Khan expressed that the “impression” was of a chronic neuropathic pain syndrome.
At that time, Dr Khan noted that the plaintiff had seen Dr Blombery at the Masada Hospital and he was trying to manage her condition with Lyrica.  The plaintiff complained that the pain is “not well controlled”, and it was affecting her ability to socialise with friends and to use the left arm in general.
At that time, Dr Khan thought it important to repeat an MRI scan of her cervical spine and left shoulder to exclude “red flags”, such as neuro-compromise and shoulder pathology.
Dr Khan next reviewed the plaintiff on 26 November 2015 and noted that, at that time, the plaintiff was on the following medications:  Levlen, Panadol Osteo, Nexium and Lyrica.  The plaintiff informed Dr Khan that her neck pain had “resolved” since starting Lyrica, but because the dose was high she feels “slow and fatigued on it”.  Dr Khan advised the treating general practitioner that it would be worthwhile gradually weaning the plaintiff off the Lyrica to see if her pain remains controlled.
Dr Khan next reviewed the plaintiff on 25 January 2016, and again recorded that she was on medications consisting of Levlen, Panadol Osteo, Nexium and Lyrica.  Dr Khan thanked the general practitioner for supervising the weaning of the Lyrica and noted that the plaintiff considered that cutting down the dose “further” would lead to a resurgence of her neuropathic arm pain.  Dr Khan also noted that she had been seen by Dr Allen Yuen for acupuncture and this has been helpful in relieving upper limb symptoms and increased muscle tone and pain.
Dr Khan next reviewed the plaintiff on 30 March 2016, when he again recorded her medications to be Levlen, Panadol Osteo, Lyrica and Cymbalta.
Dr Khan noted that the plaintiff “looked well” and he obtained a history that the plaintiff recently completed an internship at the Herald Sun, working in Southbank.  Dr Khan noted that:
“She found the work very enjoyable but found that she could only work 3 days and spent the other 2 in bed.  She is now looking for suitable work as a journalist.”
In particular, in his report dated 30 March 2016 back to the treating general practitioner, he stated:
“I encouraged her that returning to work was the best sort of rehabilitation she could do to help improve her condition at over 3 years post injury, The Lyrica is providing analgesic benefit but she is concerned about slowed cognition and weight gain.
 I have advised that she should try to wean the Lyrica down to the most critical dose that does not cause side effects. I have given her a script of Lyrica 50mg tablets. She may reduce the Lyrica to 100mg mane, 150mg midi and 150mg nocte in the first instance. She may aim to reduce the dose by 50mg per day over the next 3 to 4 weeks, Eventually, she could get down to Lyrica 100mg TDS over a 1-month period.”
Dr Khan next consulted with the plaintiff on 21 September 2016, at which time the plaintiff was taking Levlen, Panadol Osteo, Lyrica, Cymbalta and Endep.  Dr Khan noted that the plaintiff continued to “struggle with pain radiating from the left neck down to the arm and involving the left hand”.  Dr Khan obtained a history from the plaintiff that the pain is like a “‘migraine in the hand’”.  Dr Khan noted that previous scans in the neck had not revealed neural compression in the cervical spine.
He noted, also, that the attempt of weaning the Lyrica did not go well, and she had recurrence of the pain.  He also noted the Lyrica tends to detrimentally affect her memory and overall alertness – in such circumstances he thought it appropriate she undergo a multidisciplinary pain management program in which she can learn non-pharmacological strategies to help manage her pain and hopefully allow her to return to work.
Dr Khan next reviewed the plaintiff on 9 November 2016, at which time he noted that the plaintiff was taking Levlen, Panadol Osteo, Lyrica, 150 milligrams PO TDS regular, Cymbalta and Endep.  He noted that WorkCover had funded approval for her to participate in a twelve-week pain management program at Epworth Richmond.
Dr Khan reviewed the plaintiff on 13 April 2017, at which time she was taking Panadol Osteo, Lyrica, Cymbalta and Baclofen.  Dr Khan described her presentation in the following terms:
“Her pain issues remain in status quo. She has pain which radiates from the left shoulder down into the left hand. She describes weakness in the left hand in terms of grasp and she also reports changes in colour and temperature in the hand. She states that if she does not take the Lyrica then she experiences shaking of the hand (? Dystonia), I think these symptoms are likely consistent with CRPS of the left upper limb.”
Dr Khan next consulted with the plaintiff on 30 May 2018, at which time she was taking Lyrica, Cymbalta, Baclofen, Seroquel, Endep and Oxazepam.  Dr Khan noted that the plaintiff had been diagnosed with lymphocytic gastritis in late 2017 by Dr Nathan Connelly, but also noted, that, by way of endoscopy, there was no evidence of Crohn’s disease and H Pylori negative.  He also noted that she had a fall, breaking her right foot in March 2018, and that her neck pain and arm pain were in “status quo”, but her anxiety and depression worse, with her psychiatrist, Dr Datta, increasing her psychiatry “meds”.
Dr Khan next consulted the plaintiff on 6 June 2018, at which time her medications included Lyrica, Cymbalta, Baclofen, Seroquel, Endep and Oxazepam.  She attended at that time to have her “total & permanent disability forms” filled out in respect to her inability to work as a junior journalist.  There was discussion about the possibility of peripheral nerve stimulation, but Dr Khan considered “this is not the right time to use this option.  She may continue her usual analgesics for now”.
There is reference to him seeing her in three months’ time to discuss further management options, but no further reports were available or tendered;
(xi)	The plaintiff relies on the reports of the treating psychiatrist, Dr Sunil Datta, who initially consulted with the plaintiff on referral from the general practitioner, Dr Roziel.  I also note that those acting for the defendant also tendered reports from Dr Datta.  Seemingly, Dr Datta commenced to treat the plaintiff in about mid-2016, at which time he obtained a history from the plaintiff of the incident in 2012, “causing her to suffer injury to her neck and shoulder”.  The plaintiff was sent home that night and was “in severe pain in her shoulder and neck area”, causing her to attend her doctor’s surgery before it was opened, but managed to see a doctor who realised that she had a “dislocated shoulder”, and it was pushed back.  Following that, she was “the same for a while”, but subsequently continued to have pain in the neck area and continued to be disabled, with an MRI scan being carried out, which showed a “mild misalignment” and subsequently she developed problems with her muscles contracting almost all the time with a loss of strength.  The plaintiff noted she had been seen by numerous doctors, “but nothing really has been picked up” other than her shoulder problems, and because of the “chronic pain”, she was subsequently treated with a lot of opiates, and at one stage, 60 milligrams of Endone.  Ultimately, she underwent a Ketamine infusion, after which she was treated with Pregabalin, which is “helpful”, but she found the side effects to cause her a lot of sedation.  In particular, Dr Datta gave the following history:
“Unfortunately when she wakes up and is not in pain she can manage and on other days she wakes up in severe pain and she had to take medication and the lack of being able to predict has caused her so much of uncertainty in her life and she finds it very difficult to move on and get herself a job, and be able to settle into anything stable.
 With a lot of difficulties and with a lot of effort she did some home studies and was thereafter able to complete a bachelor of communication and media, and completed this in late 2015 but because of the addiction to opiates, she can hardly remember much of the course.
 She feels depressed and lacking motivation and feels sad for most of the time and was frustrated because of the lack of money and a lack of choices and being unable to go 21st birthdays and enjoy things that young girls her age seem to do quite a bit. She is frustrated that for the past four years she has been able to work only 10 weeks, and she in addition suffers from anxiety apart from the chronic pain.”
		(sic)
Dr Datta also recorded, in the initial interview, that the plaintiff was “interested in journalism” and, through a contact, was able to obtain an internship with a mentor and stayed there for approximately “one year and was actually doing articles for them, which they were then proofreading and publishing and they need because of technical reasons”.
The plaintiff informed Dr Datta that she can accept she is disabled but cannot tolerate the pain.
Dr Datta was of the opinion that the plaintiff suffered from an “adjustment disorder with depressed mood, in the context of chronic pain issues”.  At that time, he recommended a further increase of Duloxetine and would consider the addition of Amitriptyline. 
In a report dated 30 September 2016, Dr Datta does note that the plaintiff reported that she has had a “30 per cent improvement in her general background presentation”.  However, according to Dr Datta, the pain was “very disabling” and that the symptoms revealed by the plaintiff were suggestive of a “complex regional pain syndrome, with changes in colour and unusual distribution of the pain”.
Furthermore, in a letter to the general practitioner, dated 26 September 2017, Dr Datta reports the plaintiff had attempted to put herself “through a few courses”, but does not feel she is moving in any particular direction.  Dr Datta noted that it was “difficult to move forwards in the context of being involved in the medical legal systems, as one receives conflicting advice from various people”.  Dr Datta noted that the plaintiff was “troubled with the inability to control the chronic pain and the inability to accept her disability”. 
In a report dated 31 October 2017, Dr Datta confirmed the formal diagnosis of her medical condition to be that of a “chronic pain disorder and major depressive disorder”.  Furthermore, when queried about prognosis, Dr Datta was of the opinion that “as long as she continues to be in chronic pain and has the residual disability she will continue to have depressive symptoms and anxiety”.
In a report dated 14 July 2018, Dr Datta noted that there had been a variety of interventions, but the plaintiff continued to be “depressed and anxious as the frustration of dealing with a chronic pain continues”.  Dr Datta went on to say that the adjustment disorder with depressed mood is her diagnosis and this is secondary to the chronic pain she suffers from.  He was of the opinion that such condition would continue in circumstances where she continues to suffer from “chronic pain”.
In a report dated 11 July 2020 to the plaintiff’s solicitors, Dr Datta notes that in the “past few years” she has managed to get herself part-time work, and despite the fact she is in pain, she forces herself to go to work, and keep herself occupied, as if she is free anyway, she would be more isolated and be preoccupied with her symptoms, as work at least provides some degree of distraction.
In the same report, Dr Datta notes that, as long as the intensity of the pain remains at this level, he did not feel there would be any change in her ongoing condition, and that her mental state will continue as long as she continues to suffer from chronic pain.
I also refer to the following:
(a)	In a report to the general practitioner dated 30 October 2019, Dr Datta reports about the confrontation that the plaintiff had with the man outside the Ronald McDonald House.  In particular, Dr Datta obtained the history that the particular culprit chased her out of her car, demanded sex with her, and when she locked herself inside her car, he was banging on the windows and masturbating in front of her.  Although she kept calling the police and telling them what was happening, the police did not arrive for at least twenty minutes.  Dr Datta notes that the plaintiff had been having nightmares and flashbacks and developed an acute reaction to stress, and may progress into Post-Traumatic Stress Disorder.  Because she was “terrified” to go back to the Ronald McDonald House, it was suggested that she discontinue her job there and continue working in her new environment – presumably The Les Twentyman Foundation;
(b)	In a further letter to the treating general practitioner, dated 4 October 2018, Dr Datta also refers to the “very difficult time” for the plaintiff in the context of her father developing cancer, and this has only added onto problems experienced by the plaintiff.  Dr Datta notes that the plaintiff had been taking her father to various medical consultations and seeing her father be sick and in pain, caused the plaintiff to become “very emotional” in the context of this difficulty..
Furthermore, Dr Datta records that the plaintiff has “been through a surgery which has been not very successful in relation to her pain” and that she has “constant pain in both her legs and in her hands”;
(c)	Seemingly, in a letter to the treating general practitioner, again, dated 4 October 2018, Dr Datta notes that the plaintiff’s situation had “deteriorated significantly” because of her father’s cancer.  Dr Datta notes that her father’s sixtieth birthday was “coming up” and the plaintiff had been given the responsibility of organising his birthday;
(d)	I also refer to a letter to Dr Roziel, dated 26 September 2017, wherein Dr Datta notes that the plaintiff:
“… has continued to struggle within herself with a meaning and purpose in life for the future given the chronic pain she has.”  
He also noted that she has attempted to put herself through a few courses, but does not feel she is moving in any particular direction.  Dr Datta commented:
“It is difficult to move forwards, in the context of being involved in the medical legal systems, as one receives conflicting advice from various people.”
(xii)	The plaintiff also relies on the reports of the orthopaedic surgeon, Mr Rohan Price, orthopaedic surgeon, dated 29 August 2016 and 14 September 2016.  The general practitioner, Dr Roziel referred the plaintiff to Mr Price, who seemingly consulted with her on or about 29 August 2016.  He obtained a history of the plaintiff being right handed and had recently completed a Bachelor of Commerce and Media Studies Degree.  He notes that she was having chronic pain, for which she sees Dr Khan and Dr Blombery, and takes a number of medications, including Cymbalta and Lyrica to manage this.  The plaintiff complained that she had been “troubled by left sided neck and arm pain for four years” following a fall at her then work.  She described the pain as being “constant” and usually associated with a “headache”.  Pain is located on the left side of the neck and extends down into her trapezius muscle belly, and from there it radiates over the lateral deltoid and all the way down into her hand.
On examination, Mr Price found the plaintiff had a slight loss in external rotation to 50 degrees, compared to 80 degrees on the right side, and had an internal rotation to T12 and 150 degrees of active elevation.  He noted that the plaintiff had a global reduction in the power of her rotator cuff in all three planes (4-5).  Her neck range of movement was still reasonably normal.  The plaintiff complained that her left-sided symptoms got worse when she rotated her neck to the left.
Mr Price noted that a recent x-ray was normal, and an ultrasound suggested she had a small injury to her supraspinatus tendon, and that a recent MRI scan of the cervical spine has been reported as a normal study.  Mr Price arranged for the plaintiff to undergo an MRI scan of the left shoulder, but he was expecting that to be normal given her pattern of symptoms is “difficult to explain from a structural point of view”.
In his later report to Dr Roziel, dated 14 September 2016, he notes that the MRI scan of the shoulder was “essentially normal”, and he thought the plaintiff may benefit from a pain specialist once again, and also a physiotherapist to address her symptoms and to optimise her analgesia;
(xiii)	The plaintiff also relies on reports from the gastroenterologist, Dr Nathan Connelly, dated 5 February 2018 and 28 July 2018.  Dr Connelly states that he first met the plaintiff in November 2013, when she presented at the John Fawkner Hospital with severe abdominal pain two weeks following a laparoscopic cholecystectomy.  At that time, he noted a history that the plaintiff had “suffered a workplace injury approximately four to five months earlier and had gastrointestinal symptoms at the time”.  Furthermore, he also noted that she had been taking a combination of non-steroidal anti-inflammatory drugs, Panadol and various opiate medications for her post-injury pain, predominantly in her shoulders and neck.
Dr Connelly notes that the plaintiff went on to have a laparoscopy cholecystectomy and presented to John Fawkner Hospital with significant pain.  Dr Connelly notes that the plaintiff went under “multiple investigations”, all of which were unremarkable.  Furthermore, she had a gastroscopy and colonoscopy, which were “essentially normal”.  She had random biopsies at that time, which were all “normal” and there was no evidence of helicobacter pylori infection.  Dr Connelly considered that her condition in 2013 “seemed to have settled down” and he did not see her again until December 2017, when the plaintiff presented to Dr Connelly shortly following an admission to The Royal Melbourne hospital Emergency Department, where she had presented with a two-day history of fever, epigastric pain and vomiting, with pain radiating through her back.
After a variety of tests, Dr Connelly formed the diagnosis that he strongly suspects that the plaintiff has a combination of lymphocytic gastritis and enteritis secondary to the use of long-term nonsteroidal anti-inflammatory drugs, which although responding well to the usual treatment, has left her with ongoing functional impairment of her gastric emptying and also increasing gastric sensitivity.  Dr Connelly notes that the plaintiff basically has functional dyspepsia on top of her lymphocytic gastritis.  All other probable causes of the syndrome have been excluded, according to Dr Connelly and, in particular, he nominated the anti-inflammatory drug to be Nurofen.  With Nurofen removed, he considered that her condition “hopefully will improve over time”.
Dr Connelly does state:
“The management of [the plaintiff’s] condition is difficult. The functional component of this illness would usually respond to all of the medication she is taking anyway for her chronic pain. In patients with functional gastrointestinal disorders of the upper gastrointestinal tract, the commonest medication used are antidepressants and she is taking two, nerve stabilising agents like pregabalin, proton pump inhibitors and various other gastrointestinal-type medications.”
(xiv)	The plaintiff also relies on a pain management program:  multidisciplinary assessment report and treatment plan dated 13 October 2016 and signed by the physiotherapist, Mr Jack Behne, of the Pain and Orthopaedic Epworth Rehabilitation, Richmond, and a report from Mr Behne dated 11 December 2017.  In the report dated 11 December 2017, Mr Behne notes that the plaintiff completed a pain management program at the Epworth in early 2017, the focus of which was improving self-management skills and developing tolerance to work-related activities.  Mr Behne reports that the plaintiff:
“… experiences persisting left arm and shoulder pain, which behaves in a neuropathic-like fashion, and considerably limits her function, quality of life, mood, and sleep … .”
He also notes that the pain has not improved, with multiple treatment strategies.
Mr Behne reports that the plaintiff reported significant benefit from regular pool/hydrotherapy activity, and this has been a “primary coping strategy for her pain”.
The plan, dated 30 October 2016, sets out the details of the Pain Management Program at Epworth, which involved the input of a psychologist, occupational therapist and physiotherapist;
(xv)	The plaintiff also relies on the report from the occupational therapist, Mr Tim Roocke, dated 3 October 2016.  In the report dated 3 October 2016, Mr Roocke obtained the history that there is pain in the left side of the neck of the plaintiff, she has lost strength in the left arm, and sensation change also, colour change, and the left hand is cold, left arm sometimes spasms at night, and she was generally getting worse over recent months.  Also, she was experiencing “the worse headache imaginable”, which feels like a headache in the arm and neck.  She also experienced a throbbing pain in her dominant right hand;
(xvi)	The plaintiff also relies on a report from the consultant psychiatrist, Dr Ted Cassidy, dated 5 August 2019.  The treating psychiatrist, Dr Datta, referred the plaintiff to Dr Cassidy for assessment of suitability of TMS treatment for her “chronic major depression which is secondary to her chronic pain symptoms”.  After obtaining a history from the plaintiff, Dr Cassidy was satisfied that diagnostically, the plaintiff “has chronic major depression which is comorbid with the chronic pain syndrome and she is a suitable candidate for TMS”.  He intended to commence a course, and if there was a good response, for that sort of treatment to be maintained into the future. 
(e)	The medico-legal reports relied on by the Plaintiff
223	The plaintiff also relies on various medico-legal reports, consisting of the following:
(a)	A report from the occupational physician, Dr John M Lange, dated 21 November 2012.  Dr Lange examined the plaintiff on 21 November 2012 on behalf of the compensation insurer, Gallagher Bassett Services Workers Compensation Victoria Pty Ltd.  
Dr Lange obtained a history that the plaintiff is a nineteen-year-old right-handed woman who worked on a casual basis with the defendant for approximately fifteen hours per week.  At that time, she was a student in her first year of a media degree at Swinburne University, with most of the work performed online.  The plaintiff gave a history of the incident when she slipped on a wet surface, falling heavily and striking her left shoulder on the corner of a table.  The next morning, the pain in the shoulder increased, causing her to attend her “GP”, who somehow manipulated the shoulder and it improved.  Furthermore, the plaintiff gave evidence that she experienced pain in the left shoulder for a few weeks and then started developing spasms and headaches and, in particular, after each physiotherapy session, she would develop marked headaches.
She was investigated by an MRI scan of the cervical spine on 7 November 2012, which noted a slight disc bulge at the C6-7, and lack of lordosis on the MRI scan.  Dr Lange noted that, although the radiologist reported there was no pathology in the cervical spine, in the flexion films of the plain x-ray revealed some anterior translation of C3 on C4.
At that time, the plaintiff was experiencing headaches on a daily basis, usually two to three times a day, and they could last ten minutes or all day.  The pain usually starts in the occipital region and then radiates to the parietal area and intermittently behind both eyes.  The plaintiff was also suffering stiffness in her cervical spine and had difficulty rotating her head to the left side, and also complained of spams where the muscles contracted over the left side of her neck which, again, occurred three to four times a week and last for a few minutes.  The plaintiff considered that her left shoulder was “better” than it was previously but the muscles around her left shoulder feel weaker than the right.
Examination of the cervical spine revealed a near normal range of movement, with rotation limited to approximately 80 degrees left and right rather than the full 90 degrees.  There was tenderness over the upper cervical spine in the C3-4 area.
Examination of the shoulders revealed a full pain-free range of movement.  Upper limb neurological examination revealed left-sided weakness in the biceps and triceps along with a left grip strength.  All reflexes left and right were equal.  Tone was equal and normal.  The plaintiff was noted to have altered sensation to pinprick over the lateral aspect of the left forearm.
Dr Lange was of the opinion that the plaintiff had sustained a marked ligamentous injury to her cervical spine as a result of the fall, noting her various symptoms.  At that time, he thought her unfit for work until she is “fully assessed” and that her cervical spine pain and headaches are adequately treated.  Dr Lange considered that her incapacity for work was due to her symptoms of pain in the cervical spine, severe headaches with radiation of the left arm, along with the radiological findings of anterior translation at C3 on C4;
(b)	The medico-legal report from the consultant in rehabilitation and pain medicine, Dr Clayton Thomas, who examined the plaintiff on behalf of her solicitors on 6 March 2020.  On examination, the plaintiff complained of left-sided neck pain to the left shoulder girdle and down the left arm into the left hand.  Furthermore, she complained that she “occasionally gets shaking of the left upper limb” and “has headaches”.  She also informed Dr Clayton Thomas that she has discolouration, poor strength and poor grip in the left upper arm, with the pain levels fluctuating – at the time of consultation they were about 5/10 and occasionally they are 8/10.
On examination, the right hand was generally 2 degrees warmer than the left hand, which was colder.  A fine tremor was noted on the left hand, the left hand was noted to be slightly redder than the right hand and nail and skin patterns seem to be symmetrical.  Left shoulder movements were limited, external rotation 50 degrees, extension 35 degrees, flexion and abduction 90 degrees each.  There was non-specific weakness of the left upper limb.  The right arm was 1 centimetre larger than the left arm, but the right arm was 1.5 centimetres smaller than the left forearm.  She had reduced sensation to light touch and was hypoalgesic.  
Dr Clayton Thomas diagnosed the plaintiff to be suffering from a complex regional pain syndrome, noting that the plaintiff reports vasomotor changes of temperature asymmetry, motor changes with a tremor and sensory change with pain and sensitivity.  In relation to work capacity, Dr Clayton Thomas stated:
“She has limited work capacity.  She is right upper limb dominant.  She cannot perform work that involves the left upper limb.  She can only perform worker [sic] which is sedentary or semi-sedentary where the right upper limb is the predominant upper limb that needs to be used.
 Work needs to be close to home. In view of the poor sleep that accompanies her condition, part-time work would be possible. I think she could work in the vicinity of five hours five days per week as long as the work is close to home and sedentary in nature.
 I think there has been a profound effect from this injury on her ability to function domestically, recreationally, socially and personally. This will continue for the foreseeable future given that the injury occurred in 2012 and that the residual problems that have been left remain severe and disabling for her.”
(c)	Those acting for the plaintiff arranged for the consultant psychiatrist, Dr Nigel Strauss, to medico-legally examine the plaintiff on 27 September 2017, 2 August 2018 and on 4 February 2020.  When initially seen, the plaintiff stated there was no family history of any psychiatric illness.  In relation to past medical problems, the plaintiff gave a history of the incident in 2012 of the removal of her appendix and the removal of her gallbladder in about 2013 or 2014.  The plaintiff denied any other past significant medical or psychiatric problems – apart from those said to be associated with the incident.  Furthermore, the plaintiff gave a history that she is right-handed and basically did everything with her right hand because of pain in her left neck and left shoulder, which radiates down her left arm.  Furthermore, she gave a history that, “more recently”, she has experienced numbness in her left leg.  The plaintiff stated that “predominantly her left arm is weak and consequently she moves it only to a limited extent”.  Furthermore, she said that she only “goes out occasionally” as she can never predict when the pain will affect her, and that she spends at least two days in bed because of severe pain.  Furthermore, the plaintiff stated that she:
“… only goes to parties when she has to and generally she said she is at home and she said that friends have given up asking her out now and so she is quite lonely and isolated.”
Dr Strauss recorded, on the first occasion, that the plaintiff described herself as being “very depressed and often tearful but not suicidal”.  Furthermore, the plaintiff stated “she does not enjoy life and she worries about the future and she often feels hopeless and helpless”.  She also has difficulty with sleeping and is often tired, which makes her restless and uncomfortable.  She is attending a psychologist every two weeks (presumably Ms Noor) and a psychiatrist monthly (presumably Dr Datta), and was obtaining antidepressants from the psychiatrist.
Dr Strauss reported that she presented as a:
“… well groomed well presented young woman who was helpful and cooperative but quite emotional and tearful and certainly preoccupied with her problems.”  
He also noted that the plaintiff had “great difficulty moving her left arm to any extent”.  In his first report, Dr Strauss stated:
“From [a] purely psychiatric point of view she suffers from a moderately severe chronic adjustment disorder with mixed anxiety and depressed mood and a somatoform disorder.  A somatoform disorder could also be called a pain disorder associated with a medical condition.  In other words this woman experiences pain which is both organically and psychologically related.
 She is someone who has not responded well to treatment and it appears that she will remain disabled because of her chronic pain into the foreseeable future.  I would urge that her compensation process be finalised as quickly as possible because this may help her to a certain extent but when all factors are considered I believe that she will suffer from chronic pain for some time into the future and possibly permanently.
 With this in mind she is currently unable to work in ongoing employment and this remains the case indefinitely at this stage.  She may be able to study but I cannot see her working consistently in any job because of the unpredictable nature of her pain and her pain levels.  Psychiatric factors alone are not causing her total incapacity. She has a partial incapacity for work on psychiatric grounds alone.”
When seen on 2 August 2018, Dr Strauss reports that the plaintiff:
“… presented in a very emotional state telling me that two days ago her father had been diagnosed with bowel cancer and she was extremely and understandably distressed about this.”
Furthermore, the plaintiff informed him that, since her last visit to him, she has been “chronically depressed” and is often tearful and has “fleeting suicidal thoughts”, but does not act upon them.
At that time, Dr Strauss reported that the plaintiff’s condition “has not altered appreciably” since the last consultation and has been exacerbated by her father being diagnosed with cancer.
In particular, Dr Strauss states:
“I still believe that this woman suffered a genuine physical injury some years ago which has precipitated a gradual and significant psychological decline in this young woman. She now presents with a moderately severe chronic adjustment disorder with mixed anxiety and depressed mood and a somatic symptom disorder which would account for much of her pain.
…
On psychiatric grounds alone she cannot work irrespective of her physical condition.”
When last seen on 4 February 2020, the plaintiff informed Dr Strauss that her father’s condition was in “remission” after a good deal of treatment and a relapse of this has given her some relief.  In particular, she informed Dr Strauss that she continues “to suffer from significant pain in her neck, left shoulder and left arm associated with paraesthesia”.  At that stage, she also described how she was doing two days’ work with The Les Twentyman Foundation, and had been doing it, at that time, for about three months.
In his report, Dr Strauss states:
“This woman’s situation from my perspective has become more complex but certainly I am now more confident that she suffers from a significant somatic symptom disorder and that much of her physical symptomatology is psychologically based.
 I note that since her fracture in her foot she has suffered from ongoing physical symptoms in the foot which probably cannot be explained on organic grounds. This is an example of this woman’s tendency to manifest psychological distress in the form of physical pain.
 Furthermore I have become aware of her rather substantial history of abdominal symptoms for which there is no apparent organic cause. Again I believe that much of her abdominal symptomatology is psychologically based on an unconscious level.
 I note that her preexisting problems which have troubled her since her alleged fall at work continue unabated despite the elapse of time and treatment.
 All of these problems suggest that this woman tends to somatise and I believe that the major diagnosis in this case is that of a somatic symptom disorder previously known as a pain disorder. I should emphasise that there was nothing at interview to suggest that this woman deliberately or consciously over exaggerates her physical symptoms. I believe that they are unconsciously based and that she suffers from a good deal of anxiety and depression apart from her physical symptomatology, and it is this emotional distress that is perpetuating her generalised physical problems.
Therefore apart from a somatic symptom disorder she suffers from a moderately severe chronic adjustment disorder with mixed anxiety and depressed mood.
This woman struggles with employment and would not be a reliable employee in any situation largely because of psychiatric factors.
 I believe that although she can do some occasional temporary limited work in a clerical capacity she would not be capable of working more than one or two days a week and her attendances would be unpredictable … .
 I believe that her psychiatric problems are linked to her initial injury which took place in 2012.
 Obviously personality factors are also relevant but it is noted that at this stage there is no evidence to suggest that she had any psychiatric problems before her 2012 fall.
 Certainly her concerns about her father and the alleged experience she had near the Royal Children’s Hospital late last year, have also upset her but the major factor causing her ongoing psychiatric problems remains the fall she took at work some years ago.”
(d)	The plaintiff also relies on the report from the psychiatrist, Dr Michael Duke, dated 27 March 2018.  Dr Duke medico-legally examined the plaintiff on 21 March 2018 at the request of the insurer of the defendant.
The plaintiff gave a past medical history that there had been no past contact with psychiatrists or psychologists.  Furthermore, the plaintiff stated that, as a result of the previous medication she was taking, she has inflamed intestines.  The plaintiff also gave a history of having an appendectomy when seventeen, a cholecystectomy in 2013, which “she thinks was blown up because of the opiates she was on at the time”.
Dr Duke prepared a pain diagram which accompanied his report and, consistent with such diagram, the plaintiff stated that:
“… she suffers from pain all the way down her left limb, both front and back, also into her left shoulder blade up to the left trapezius muscle and into the neck and on the left-hand side of the head and to a degree into the occiput.” 
The plaintiff also gave a history that “her life consists of trying to manage the pain”.  The plaintiff advised Dr Duke that she can move her left arm passively with her other arm, but she has no strength in her left upper limb.  She demonstrated such lack of strength by squeezing the fingers of Dr Duke to demonstrate the relative lack of strength compared to the right side.  The plaintiff advised Dr Duke that “my accident has changed everything for me”.  During her mental state examination, the plaintiff placed her left arm in her lap, although demonstrated its lack of spontaneous movement by moving it around with her right arm.  Ultimately, Dr Duke diagnosed the plaintiff to be suffering from an adjustment disorder with mixed anxiety and depressed mood.  Dr Duke was of the opinion that, “[o]n the information I have, it was due to the work injury where she dislocated her shoulder, from which she has never completely recovered”;
(e)	The plaintiff also relies on a report from the psychiatrist, Matthew Tagkalidis, dated 17 December 2015.  Dr Tagkalidis consulted with the plaintiff on 17 December 2015 on behalf of the insurer of the defendant.  The reason for such consultation was for him to make an independent impairment assessment relevant to the provisions of the Accident Compensation Act 1985. 
The plaintiff gave a history to Dr Tagkalidis that she had never seen a psychiatrist or psychologist for treatment prior to the work incident and, furthermore, when queried about her past medical history, the plaintiff stated that she underwent an appendectomy when aged seventeen and a cholecystectomy in November 2013.  He went on to state that “otherwise been in good general medical health”.
The plaintiff gave a further history that she thought her left shoulder was “dislocated” after her fall in the incident, and when attending a doctor the following day, such shoulder “reduced the dislocation” and placed her arm in a sling for one month.  At that time, her left arm was numb and painful, and she thought that was related to the sling, but the pain and symptoms in her neck and arm continued after the sling was removed.
When queried about “current symptoms”, the plaintiff gave a history that she was currently experiencing ongoing frustration regarding the pain in her neck and because of her resultant physical limitations.  She informed Dr Tagkalidis that the pain and pins and needles are constant, radiating into her left arm at times, is exacerbated with exertion and is typically 4/10 in intensity.  Furthermore, she stated that this is associated with daily headaches which are frequently severe.  The plaintiff described a series of different treatments which were to no avail.
Ultimately, Dr Tagkalidis concluded that the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, relevant to the “accepted injuries”.  He further concluded it was not possible to definitely diagnose a Chronic Pain Disorder given the diversity of medical opinions.  He also concluded there were no pre-existing psychiatric issues of relevance, and that her current functioning and coping has not been compromised by any personality-based factors.
(f)	The medico-legal evidence relied on by the Defendant
224	The defendant relies on various medico-legal reports, consisting of the following:
(i)	The defendant relies on medico-legal reports from the psychiatrist, Dr Alan Jager, dated 8 August 2013 and 13 October 2020.
The plaintiff was first seen by Dr Jager on 8 August 2013.  The plaintiff gave a history that she felt “completely well” until 13 July 2012, when she slipped “on a wet floor” and crashed into tables and chairs with her left shoulder”.  She further stated that she knew “immediately” that something had happened, and she attended a general practitioner the next day and was told a dislocation was “put in place”.  She was placed in a sling for three weeks, but developed neck and head pain, which has persisted.
Furthermore, she informed Dr Jager that she had seen her general practitioner and had undergone and MRI scan and “a neurosurgeon … diagnosed a joint injury”, and that she has weakness in her left upper limb.  At that time, she was taking Targin, had dropped a unit in her Bachelor of Communication Course at Swinburne University, had ceased Temazepam and Diazepam and, from May 2013, she had been receiving treatment from a psychologist because “‘she couldn’t deal with it and felt depressed”.  She was having difficulty sleeping, staying asleep and her energy was “horrible”.  Her appetite was “reduced” and her concentration horrible.
In particular, Dr Jager obtained a history that there had been “nil” past psychiatric history and “nil” medical history, save for an appendectomy.  
At that time, Dr Jager formed the view that the plaintiff suffered an adjustment disorder which was “a secondary consequence of her physical injury” suffered by her on 13 July 2012.  Dr Jager was of the opinion that although the plaintiff could not return to her pre-injury duties, she was capable of returning to work in modified pre-injury duties, she was fit for alternative duties and, in particular, considered that the plaintiff was “fit for half-time work not involving intense concentration within her physical restrictions” and that work could commence “immediately”.
When reviewed on 2 March 2020, the plaintiff informed Dr Jager that the last time she “felt completely well” was in 2010, after which she developed infectious mononucleosis, but was otherwise well.
At that time, the plaintiff gave a further history that when she slipped at work on 13 July 2012, she landed on her left side “on a surface that she cannot remember”.  The plaintiff also gave a history of treatment that she has undergone and, in particular, the plaintiff asserted that “an x-ray showed a disc location had spontaneously reduced”, that she then suffered neck pain and has never returned to the workplace, and had been off work until October 2019, except for some volunteer work for four hours on a weekly basis.
The plaintiff described being “depressed most of the time” and anxious “all the time” and angry “most of the time”.  She alleged she had difficulty getting to sleep, and staying asleep, and is tired during the day, and when she is under stress her pain gets worse, and although she is “never hungry” she thinks her weight fluctuates.  She informed Dr Jager that in 2015, she completed a Bachelor of Communication at Swinburne University and commenced a Bachelor of Social Science online, and completed that course in April 2019.  She commented to Dr Jager “no one understands”.
Dr Jager described the condition of the plaintiff as “complex” and is affected by non-accident-related factors, including personality characteristics, and he also noted references by the treating psychologist to two bereavements.
Dr Jager diagnosed the plaintiff to have a depressive illness, fulfilling the diagnostic criteria for chronic major depressive disorder with anxiety.  He notes that if the plaintiff’s pain is inadequately described by organic causes, then she also has a chronic pain disorder associated with psychological factors.  However, if there is still a physical injury, that is also characterised by a “general medical condition”.  He further noted that the diagnoses are complicated by possible personality dysfunction.
Dr Jager noted that the plaintiff denied any prior history of psychiatric illness,  and denied any other stress, but he noted the psychologist specifically referred to two bereavements in 2014 relating to the death of her aunt and her best friend.  Dr Jager also noted that the plaintiff has never left home and never had a long-term intimate relationship.  He considered that there is a possibility of underlying personality dysfunction predisposing the plaintiff to the development of a psychiatric disorder and helping to perpetuate such a disorder.
In relation to her capacity for employment, Dr Jager reported as follows:
“7.	a.	…
b.	What are the consequences and resulting incapacity resulting from the worker’s psychiatric condition. In particular, as a result of the alleged psychiatric injury could the worker:
i. 	Return to pre-injury duties;
		No.
ii.	Return to suitable employment, and if so, what are the applicable restrictions and/or modifications in relation to suitable employment? Could she perform these duties on a full time basis? If not on a full time basis, how many hours a week is the worker capable of performing?
Yes, she is fit for suitable employment and undertakes suitable employment. I note she has completed two undergraduate degrees since the accident, despite fairly intensive and ongoing treatment from a psychiatrist and a psychologist. It is likely that her work in undertaking those degrees has been undertaken on a self-paced basis. She referred to getting tired and I noted, at interview, that she had slowed mental processing and some comprehension difficulties. I do not consider her fit to work on a full-time basis. She could however undertake full hours of employment on a self-paced basis.
iii.	Perform the duties detailed in the enclosed vocational assessment report of Recovre dated 27 June 2018? Could she perform these duties on a full time basis? If not on a full time basis, how many hours a week is the worker capable of performing?
Due to her depressed, anxious and angry mood she is unfit for the roles of customer service officer, receptionist, enquiry clerk/information officer and rental salesperson. She could undertake the other roles for a full 38 hour week on a self-paced basis but not on a rigid fulltime ‘9 to 5’ basis. In providing this opinion I again note that she has completed two bachelor’s degrees since the injury.
 8.	…
 9.	In your view, are there any lifestyle and/or other factors unrelated to the worker’s psychiatric and physical condition and resulting incapacity, which impact on the worker’s motivation to return to work in suitable employment? 
Personality factors may be contributing to her distress but further collateral information would be required to quantify that.”
Dr Jager also supplied a supplementary report dated 13 October 2020,  In that report, he was asked to comment on various identified suitable employment options from a report from a CoWork vocational assessment report dated 4 October 2020, which identified jobs, including receptionist/scheduler, journalist (sport), welfare worker, marketing and advertising officer (digital), human resource manager and administration assistant.
In his supplementary report, he expressed the opinion based on his last examination some seven months earlier, because he considered that due to her depressed, anxious and angry mood, she was unfit for the roles of customer service officer, receptionist, enquiry clerk/information officer and rental sales person.  However, noting that the plaintiff has considerable transferable skills, he was of the opinion that the plaintiff had the capacity to undertake the roles of journalist (sport), marketing and advertising officer (digital) and administration assistant.  He goes on to state:
“Since the injury she has completed 2 bachelors [sic] degrees, revealing considerable resilience and ability. She has completed those degrees despite symptoms which include lethargy. She could therefore undertake the roles on a full-time but, by necessity, self-paced basis. This would require flexibility by an employer to allow her to work hours that fitted in with her symptoms, something that is more feasible in today’s world than it was even 7 months ago when I assessed the plaintiff.”;
(ii)	The plaintiff relies on a report from a neurosurgeon, Mr Daryl Nye, dated 28 August 2013.
Mr Nye examined the plaintiff on 28 August 2013.  Mr Nye obtained a history of the incident and noted that, at the time of the examination, the plaintiff was involved in studies for a media degree at Swinburne University, with most of the work performed from home online, and irregular attendance at the Lilydale campus.  The plaintiff also gave a history of a reduced number of units due to “impaired concentration, possibly medication related”.
In particular, the plaintiff gave a history of slipping and falling on a wet, hard surface with, initially, the plaintiff’s head being extended, and then a forward fall occurring with the plaintiff’s left shoulder striking the corner of a table.  Furthermore, the plaintiff stated that pain in her left shoulder was “immediately present”, and that she was taken home that night and given an analgesic, and the following morning a:
“… medical practitioner was consulted, and a dislocation of the left shoulder was allegedly identified and reduced.  A sling was worn for two or three weeks subsequent to this treatment.
Neck pain was experienced and headache and these symptoms did not improve after discarding the left upper limb sling.”
At the time of the examination, the plaintiff reported continuing neck pain, together with headache, said to be:
“… constant with exacerbations occurring two or three times per week with a ‘pounding’ component experienced both posteriorly and anteriorly and said to be ‘like a migraine’.”
The plaintiff did state that this condition did occur prior to injury on at least one occasion, possibly in 2010 or 2011.
The plaintiff also claimed loss of strength of the non-dominant left upper limb and “spasms” that allegedly affect the proximal part of that limb.  
At that time, the plaintiff had been prescribed, and taking, a narcotic analgesic, Endone, in what was described as an “extraordinary dose” of 40 milligrams initially, taken twice daily.  Mr Nye reports that “[n]o relevant past medical history was identified”.
Mr Nye noted that examination revealed normal spinal posture, with retained cervical lordosis.  There was no spasm of paravertebral musculature in the cervical region.  Cervical movement was assessed and flexion was achieved to 30 degrees and extension to 40 degrees, with 30 degrees of lateral flexion to each side, rotation was executed to 80 degrees to the right and 60 degrees to the left.
The neurological examination revealed a global weakness of the left upper limb, with give-way phenomenon.  Upper limb reflexes were all present and symmetrical, and subsequent to this element of the examination, abnormal movement in the left upper limb was noted, with fragmentary involvement of the proximal part.  This was not evident during interview, but sustained subsequent to examination, with gradual diminution.
There was a variable non-anatomical subjective impairment of pinprick depreciation affecting the left forearm, interpreted as “functional”.  Lower limb reflexes were brisk and symmetrical.
Mr Nye, had available, an MRI scan of the cervical spine undertaken on 7 November 2012, and this examination was “normal”, with the exception of loss of cervical lordosis.  A plain x-ray of the cervical spine taken on 12 April 2013, with flexion and extension views was, according to Mr Nye, normal.  Mobility identified at the C3-4 level and commented upon in a related report was, in the view of Mr Nye, in the normal range for an individual of the claimant’s age. 
Mr Nye was not able to make any comment regarding the shoulder injury, but noted that this did not appear to be a current focus of significant symptoms.  In particular, he stated:
“The account of the incident suggests that cervical extension occurred at the onset of the fall and the possibility of a related soft tissue injury occurring is acknowledged. The radiological studies are normal, with the exception of reduced lordosis on the earlier examination, and the clinical features indicate a non-organic condition, presumably psychological in origin. The account of headache suggests that there might be an element of genuine migraine, and notably this has not been a focus of diagnosis or therapeutic action. The current treatment with a very high dose of the narcotic analgesic may of itself contribute to the claimant’s headache. With respect to the claimant’s cervical condition I could not endorse any interventional treatment strategy.
With respect to management of this worker I consider it essential that entry into a multidisciplinary pain management programme be arranged, with a full psychological assessment and if necessary input from a Psychiatrist in regard to management.”
At the time of the examination, Mr Nye was of the opinion that the plaintiff could not resume her pre-injury duties and did not have a current capacity for employment.  Mr Nye proffered the opinion that “psychological factors are strongly suspected to be significant” with respect to the plaintiff’s condition.  He was also of the opinion that the plaintiff’s current treatment was not appropriate in regard to the medication prescribed and the proposal for further interventional treatment, such as radiofrequency denervation;
(iii)	The defendant also relies on the medico-legal reports of the psychiatrist, Dr Timothy Entwisle, dated 25 September 2014, 11 January 2016 and 5 March 2018.
When initially examined by Dr Entwisle on 23 September 2014, the plaintiff gave a history of the incident on 13 July 2012 and described falling on a wet surface and striking her left shoulder on the corner of a table, resulting in “a dislocation of her shoulder”, which was reduced shortly after, neck pain and headache.  Dr Entwisle noted that she had been treated with physiotherapy, referred to a neurosurgeon, undergone neural branch block injections on 25 July 2013 and had been prescribed a variety of medications, including Targin, Endone, Valium and Voltaren.  The plaintiff became addicted to opioids and also developed severe headache and neck pain.  The plaintiff underwent a detox program and, at the time of the initial examination, was only taking Panadol Osteo.  The plaintiff gave a history that she now feels “clearer” and while she is in more pain, “she is pleased she is now once again ‘with it’”.
At the time of the initial consultation, the plaintiff continued to complain of “severe neck pain and headache”.  In relation to “mobility”, the plaintiff was able to walk for only short periods and times (about ten minutes), and bending and lifting was limited, with the plaintiff commenting “I can’t do much of all of that”.  The plaintiff gave a history to Dr Entwisle that she had no prior history of psychiatric illness, but also indicated that she had suffered two significant losses, involving her best friend, who died of a heart attack at twenty-eight, and an aunt who died of cancer.
Ultimately, Dr Entwisle diagnosed the plaintiff to be suffering from an adjustment disorder with depressed and anxious mood, iatrogenic opiate addiction and pain syndrome.
In particular, Dr Entwisle stated:
“In regard to specific questioning:
 1.	Ms Gartmann has an adjustment disorder with depressed and anxious mood, iatrogenic opiate addiction and pain syndrome. Ms Gartmann is no longer depressed. She remains somewhat anxious in respect to her various experiences and ongoing concerns about pain.
 2.	Ms Gartmann’s injury has resulted in the development of a medically derived opiate addiction. There were indications of a pain syndrome in addition. Ms Gartmann no longer presents with psychiatric symptoms but remains concerned and insecure in regard to the future.
3.	The worker’s injury or medical condition is not an aggravation, recurrence, acceleration, exacerbation or a deterioration of any pre-existing injury or disease.
4. 	…
5.	Employment is a materially contributing factor to the worker’s medical condition from the psychiatric perspective alone.
6.	Ms Gartmann does from a psychiatric perspective alone have a capacity for her pre-injury duties and hours. Nonetheless it would be my view that a pain management program will be of assistance to her. I do not consider it appropriate for her to continue attending her current Psychologist in that case.
7.	Ms Gartmann could return to work but again I refer you to my comments above in Question 6.
8. 	…
9. 	Ms Gartmann would not be deemed not [sic] have no work capacity. Unfortunately Ms Gartmann has now developed a conviction that she has some form of organic problem involving her left arm. This appears not to be borne out by Mr Nye’s assessment. A pain management program is therefore suitable in such circumstances.
10. 	…
11. 	…
12.	Ongoing psychological treatment is not appropriate. Referral to a pain management program in my opinion is appropriate.
13. 	I do believe that Ms Gartmann would have a capacity to engage in those various work options subsequent to her attendance at the pain management clinic.
14.	… .”
When seen on 6 January 2016, the plaintiff gave an updated history, which included ongoing treatments consisting of the Epworth Pain Management and referral by Dr Blombery to Dr Khan, and Dr Khan referring her to a pain management specialist, Dr Yuen.  At that time, the plaintiff continued to describe pain in her neck, left arm and hand, and although noting the Lyrica prescribed by Dr Blombery has caused a reduction in the spasms, she did describe ongoing brief symptoms of tingling in her left hand and forearm.  Dr Entwisle noted the plaintiff appeared to have developed a somewhat passive approach to her injury.
In his report, dated 11 January 2016, Dr Entwisle states:
“1.	Ms Gartmann presents with an adjustment disorder with depressed and anxious mood, iatrogenic opioid addiction in remission and a pain syndrome.
2.	Ms Gartmann’s condition occurs in the context of her employment. Personal vulnerability and temperamental factors are relevant in her case.
3. 	There are no pre-existing medical conditions of relevance.
4. 	Ongoing treatment is of assistance up to a point but more significantly a focus on Ms Gartmann working and establishing more of an active routine is likely to improve the prognosis.
5.	A focus on self management is required.
6.	Ms Gartmann impresses as having developed a dependent and passive stance in regard to her injury.
7.	…
8.	Ms Gartmann does have a capacity for activities of daily living as defined in the Mosby ‘s Medical, Nursing and Allied Health Dictionary from the psychiatric perspective alone.
9. 	I would not suggest ceasing Ms Gartmann’s treatment at this time. It is pleasing that she has been placed on Cymbalta as she impresses as someone who is constitutionally predisposed to anxiety.
10. 	…
11. 	…
12.	A strong focus on pain management rather than general support is suggested.
 … .”
Dr Entwisle last saw the plaintiff on 26 January 2018 and at that time the plaintiff continued to describe pain in her left shoulder, left arm and hand, and left neck, with headaches.  At that time, she stated she could walk up to ten minutes, bending and lifting were limited, she could dress herself, driving is extremely limited, and she does little in the way of housework, cooking, cleaning or shopping.
Again, Dr Entwisle diagnosed the plaintiff to be suffering an adjustment disorder with depressed and anxious mood, iatrogenic opiate addiction, and pain syndrome.  He noted the plaintiff continues to report high levels of distress due to pain and incapacity, together with depressed mood and anxiety.  In his opinion, Dr Entwisle states:
“1.	Despite a variety of treatments, Ms Gartmann does not describe any improvement in her overall condition which as indicated above, may well point to aspects of her treatment following a more symptomatic path rather than an holistic approach. Of prognostic concern in that regard is her statement to the effect that she found the pain management program unhelpful.
 2. 	…
 3. 	As noted by Mr Nye, Ms Gartmann’s headaches may well have a basis in rebound phenomena involving high levels of opioid painkilling preparations.
 4. 	…
 5.	I cannot comment on what would constitute suitable employment options for Ms Gartmann as it is outside the area of my expertise. What I can say is that a focus on her working in some capacity is critical to the overall prognosis in her case.
 6.	At the time of her presentation to myself on this occasion, Ms Gartmann appeared to be following up some study, but was heavily symptom-focused, and given her many years of treatment of the type described above (pain symptom-focussed), there may well be a certain resistance to Ms Gartmann considering that she can return to work after having become reliant on a range of medications and Treaters in the process.
 7.	Ms Gartmann’s prognosis is guarded.
8.	… .”
(iv)	The defendant relies on reports from Dr Leslie Roberts, dated 17 July 2014 and 25 September 2014.
Dr Roberts examined the plaintiff on 17 July 2014.  Dr Roberts obtained a history of the incident on 13 July 2012, when the plaintiff said someone had spilt a drink, and the floor was wet, and she did not see it, as the floor was a “marbly shiny floor”.  The plaintiff remembers that she fell backwards with her head back, and she tried to save herself, and then fell forward, striking the corner of a table, hitting it with her left shoulder.
She reported that she was sent home from work and she took some Panadol and Nurofen, and on the next day she went to see a doctor, and she reported that she was told that the shoulder was “slightly dislocated”.  In particular, she reports that they “pulled it out and put it back”.  Dr Roberts notes that, subsequently, she had x-rays which were said to be normal, and she was sent home wearing a sling.
Since then, the plaintiff reported that she had continued to have constant neck pain and headaches.  Dr Roberts could not determine exactly when such commenced, and she also developed cramping in the left arm, which she termed to be “spasms”.
In particular, the plaintiff complained of continuing headache in the occipital region, which she described as “pulsing” and there is, at times, bifrontal pain.  One or two days per week she will go back to bed to have relief from the pain, which she stated is difficult to handle.  The neck pain is in the posterior aspect of the neck and she feels it combines with the headache.
At the time of the examination, the plaintiff reported that her arm had been stable “for several months now” and she described “pins and needles” in the volar aspect of the distal forearm, and these extend into the fingers, which she reported as feeling swollen.  
Dr Roberts noted that the plaintiff had undergone nerve conduction studies earlier in 2014, but she did not know the result of those.
Dr Roberts did have available and MRI scan of the cervical spine, dated 7 November 2012, which concluded, “[n]o pathology seen in the cervical spine”.  He also had available a cervical spine x-ray (flexion and extension views), dated 7 November 2012, where it is noted:
“In the extension view there is normal vertebral body alignment and lordosis.  In flexion, there is some slightly exaggerated anterior translation of C3 on C4 but otherwise there is normal vertebral body alignment.”
Dr Roberts also had available a report from the neurosurgeon, Mr D’Urso, dated 12 February 2014, which states, in part, that the plaintiff underwent nerve conduction studies on 17 January 2014, and they were reported as normal, as was an MRI scan of the brain, performed on 13 January 2014, whereas an MRI scan of the left shoulder on the same date, showed “some minor subacromial bursitis”.  
Dr Roberts obtained a past medical history including an appendectomy, when aged fifteen, and glandular fever at seventeen, which the plaintiff said she has fully recovered from.  The plaintiff also gave a history that, at the time of the glandular fever, the plaintiff did have a headache, but she reported that the severity, location and persistence of this was completely different from her present symptoms.  The plaintiff also gave a history of a cholecystectomy in November 2013, requiring re-admission because of wound infection.  The plaintiff also gave a history of reports of haematuria on three occasions in September and November 2013, and again recently, for which no reason has been found.
On examination, Dr Roberts found that, in the upper extremities, there was no muscle wasting, but there was a diffuse weakness in the left upper extremity, which was clearly functional in nature.  The reflexes were 2+ and were symmetrical in the upper and lower extremities.
There was a temperature difference in the left upper limb compared with the right, in that the left side was cooler than the right, but she moved this relatively little and there was no colour change. 
There was some general shakiness in the use of the left upper extremity that appeared functional in nature.  There was a report of a decrease in pinprick and light touch sensation over the left forearm and hand compared with proximal testing on the other side, but this appeared to be non-organic and did not fit any particular anatomical distribution.
Dr Roberts, in response to specific questions, stated the following:
“1.	What injury or medical condition does the worker have? (include your clinical diagnosis where you can provide one) If the worker’s injury or medical condition has resolved please provide your clinical opinion on what injury or medical condition the worker’s history and examination was consistent with.
The worker reports persistent occipito-cervical headaches which sometimes spread to the frontal areas. There is an element of these symptoms which may represent post traumatic migraine but this is difficult to assess. There is a significant psychological component. There does not appear to be any persisting significant cervical injury.
She has apparently had an injury to the left shoulder but this clinically has resolved even though the MRI scan at the beginning of this year showed some abnormality. There is a full range of movements, which were pain free, and the worker indicated that she has no symptoms in the left shoulder at this stage.
	The symptoms in the left forearm and hand do not appear to have an organic basis. She apparently has had nerve conduction studies that I would assume have not shown evidence of a carpal tunnel syndrome and the features are quite atypical for that. I therefore cannot determine an organic basis for these symptoms.
2.		In your clinical opinion is employment the cause for the worker’s injury or medical condition? Are there other multiple causes, please list all of these?
In my clinical opinion the employment injury was the cause of the worker’s initial symptoms. The persistence of these would appear to have arisen on the basis of a psychological reaction, which is outside my field of expertise.
 3.	In your clinical opinion, is the workers injury or medical condition an aggravation, a recurrence, an acceleration, an exacerbation or a deterioration of any pre-existing injury or disease? Please explain your opinion. ·
	No. The worker has no history or findings to suggest a pre-existing condition.
 4.	If the worker has had similar or the same symptoms, a similar or the same injury or medical condition in the past or a pre disposition to an injury or medical condition, in your clinical opinion how was the worker’s employment affected those symptoms, the injury or medical condition or the pre-disposition?
	Not applicable.
[5.]		In your clinical opinion, is employment a materially contributing factor to the workers medical condition, incapacity for work and need for treatment? If not, please detail the reasons.
	The worker’s employment triggered the initial symptoms but the reason for the ongoing symptoms is not clear. The ongoing medical condition appears to be due to a psychological reaction to the original injury and there is no evidence on the examination to suggest an ongoing physical basis for the condition.
6.	…
7.	…
8.	…
9.	If in your clinical opinion the worker has no current work capacity, please provide your clinical opinion as to whether this incapacity is likely to continue indefinitely? Please provide expected timeframes for the worker to gain a capacity for suitable employment.
	In my clinical opinion the incapacity is likely to be not indefinite but the psychological factors are of importance here and I am not qualified to comment on their prognosis.
10. 	…
11.	…
12.	…
13.	…
14. 	… .”
(sic)
In his later report, dated 25 September 2014, Dr Roberts is asked to comment on whether the plaintiff could return to pre-injury duties or modified duties and/or hours from a physical perspective.  After a review of one of the reports from Dr Entwisle, in response to such query, Dr Roberts, stated in part:
“•	I do not consider that the worker can return to her pre-injury duties or modified duties and/or hours from a physical perspective. She did report to me ongoing pain and that is confirmed in Dr Entwisle’s report. The basis of that pain was the work related injury and the reason for the persistence is not clear but is most likely related to central sensitization processes and complex psychological factors. I am unable to clearly delineate what is psychologically based and what has an organic basis at this stage.
•	I do consider that the worker could return to alternate duties. However, given her belief that there is an organic abnormality in the left arm, this might not be successful. Consideration of this return to work over the next 6 weeks would seem appropriate. As Dr Entwisle has recommended, attendance at an ongoing pain management clinic would seem appropriate. I am unclear as to whether there is any plan for this or whether the inpatient stay at Epworth is the extent of her ongoing support in this way.
• 	In relation to the Vocational Assessment and the physical perspective, I would consider that employment options including work as a receptionist, administration worker or general clerk would be achievable employment objectives. However, repetitive activities and activities as described in the report and that I would expect to be integral to working as bar attendant, data entry operator or call centre operator would probably not be possible for her. If she were to perform this alternate employment, then I would suggest commencing at no more than 3 hours at a time, up to 3 days a week and with an increase as tolerated.”;
(v)	The defendant relies on the report of the orthopaedic surgeon, Mr Michael Dooley, dated 13 August 2018.  Mr Dooley examined the plaintiff on 31 July 2018.
The plaintiff gave a history that when working on 30 July 2012, a drink had spilled on the floor, causing her to slip and fall backwards.  The plaintiff described how she was able to push herself forward and then ended up on the floor, noting pain in her neck and left shoulder.
The following morning she went to a doctor and, according to the plaintiff, the doctor had told her she had “dislocated her left shoulder”.  The doctor proceeded to pull her arm and then place it in a sling.
She was aware of significant neck pain, was examined by her doctor because of ongoing neck pain and headaches, and was ultimately referred to a neck surgeon, and was told her neck was “unstable”.
At the time of the consultation, the plaintiff complained of ongoing neck pain, left shoulder girdle pain and left upper limb pain.
Again, at that time, the plaintiff gave a history that she had completed her degree in journalism and was currently doing a Bachelor of Social Sciences.  She also performed volunteer work at the Ronald McDonald House, three hours on a Friday, and youth monitoring on Thursday for several hours.  She did complain that she can spend two to three days in bed at home because of her pain.
In relation to “PAST HISTORY”, the plaintiff stated that she had “been generally fit and well in the past”.
The examination revealed tenderness of the dorsum of the cervical spine, flexion to 30 degrees and extension to 10 degrees, lateral flexion to the left and to the right to 10 degrees, and rotation to the left and right to 40 degrees.  Power was difficult to assess in the left because of pain, and the reflexes were present and symmetrical.
Examination of the left shoulder revealed tenderness at the shoulder girdle musculature.  Forward flexion and abduction are to 40 degrees.  External rotation is to 20 degrees and internal rotation is 10 degrees.  Adduction and extension are to 10 degrees.  The plaintiff resisted attempts to passively move her shoulder beyond the active range of motion.
There was a patchy loss of sensation in the left upper limb and evidence of “collapsing weakness”.  The radial pulse was intact, with the arm and shoulder in various positions, there was no evidence of sweating or discolouration of the limb, and there was no visible evidence of wasting of the musculature.  There was a normal range of motion of the right shoulder.
Under the heading “DIAGNOSIS, CLINICAL IMPRESSION AND OPINION”, Mr Dooley stated:
“Miss Gartmann describes slipping and falling during the course of her work as a waitress at a hotel in July 2012.  She said that after this fall she was aware of neck and left shoulder girdle pain.  Miss Gartmann said that she saw a doctor the following day and that she was treated for a dislocation of her left shoulder joint.  While I accept that this is Miss Gartmann’s recollection of the episode six years ago, I do not believe that she sustained a dislocation of her shoulder in this episode. On review around a week later by her local doctor, it is noted that there was some bruising over the anterior left shoulder and upper chest region. Based on the information available, I believe that Miss Gartmann sustained subcutaneous and muscular bruising to the region of her left upper chest and anterior shoulder areas in her fall. Since the episode, Miss Gartmann has reported constant ongoing neck and left shoulder girdle pain.  She has noted left upper limb pain.  She has undergone an extraordinary amount of investigation and treatment.  Despite all of this, Miss Gartmann states that her pain has persisted as it was the day of her injury.
 Accepting the soft tissue injury that Miss Gartmann sustained as outlined above, it is my view that the constancy and intensity of her ongoing pain and her described disability are far greater than one would expect to see for her organic condition.  I believe that Miss Gartmann has had a psychological reaction to her situation and that this reaction dominates her current clinical presentation.  Most injuries, illnesses etc are accompanied by a psychological reaction that varies in its degree. This reaction can be influenced by a patient’s personality, their past experiences in life, their past experiences in relation to mental issues etc.  In the attached documentation, I note that Miss Gartmann saw her local doctor in October of 2010 noting tiredness, dizziness, throbbing headaches and difficulty sleeping. Ongoing symptoms in this regard are described through to February of 2011 when Miss Gartmann attended the Accident and Emergency Department of Royal Melbourne Hospital complaining of her ongoing headaches. It was thought that she might have glandular fever. In June of 2011 she was seen by her local doctor with symptoms of tiredness and feeling depressed. Prior to this she had been placed on Endep (amitriptyline).  In July of 2011 it was thought that Miss Gartmann was depressed. It is my clinical experience that when patients sustain soft tissue musculoskeletal injury in compensable circumstances, they are far more likely to have a significant psychological reaction to their situation when they are depressed or experiencing emotional stress due to whatever situation.  I accept that I am reviewing Miss Gartmann six years after the episode.  My view would be that from almost at the outset, Miss Gartmann’ s pain and disability have been far greater than one would expect for the injury sustained. Continuing to treat her ongoing symptoms as though they are organically based is pointless. It will lead to ongoing disappointment.  It is clear today that Miss Gartmann is psychologically distressed.  She states that she wants her problem fixed.  She wants to get back to her normal life.  As outlined previously, I do not believe that she sustained a subluxation or dislocation of her left shoulder in the episode.  I accept that there could have been a minor musculoligamentous strain to the cervical spine. I do not believe that she has central sensitisation, complex regional pain syndrome type one (reflex sympathetic dystrophy) etc.  I accept that it will be stated that symptoms and signs can fluctuate.  I did not note any signs such as discolouration of the limbs, wasting of the hand musculature, sweating, changes in temperature etc.  In orthopaedics, one does see CRPS type one post injury. The injuries may involve fractures or sprains.  One probably most commonly sees it in relation to fractures of the distal radius and injuries around the ankle joint.  Symptoms begin soon after the episode.  They relate to an excessive neurovascular response to injury via the autonomic nervous system.  A range of treatments can be given including various receptor blocks etc. The condition improves with time.  Patients are not left with severe constant pain and major disability years after the episode.  I accept the theory of central sensitisation of pain and neuroplasticity of the nervous system.  I do not believe that Miss Gartmann has this condition.
From an orthopaedic point of view, I believe that Miss Gartmann needs to increase her activity and to (undertake regular low impact exercise.  She does not require specific ongoing formal conservative treatment and in my view there is no indication to consider surgical intervention in her management.  I do not believe that she should take analgesic medication such as Norspan.  Previously she became dependent upon opiate analgesic medication on an iatrogenic basis.  I do not believe that treatment such as spinal cord stimulation is indicated in her management.
In answer to your specific questions:
1. 	There were no objective abnormal clinical findings.  Reflexes were present and intact in the upper limbs.
1.	There was no wasting of the musculature of the left hand or arm to inspection.
2. 	Yes.  There were inconsistent signs in relation to passive movement of the left shoulder, assessment of the power of the musculature of the left upper limb and sensation of the left upper limb.
3. 	In my view, it is Miss Gartmann’s psychological condition that dominates her presentation.  Overall I believe that the organic physical injury sustained six years ago has very little to do with Miss Gartmann’s current presentation.
4. 	Dr Blombery notes in a report dated July 21, 2018 that Miss Gartmann continues to have features of complex regional pain syndrome type one.  He states that she fulfils the Budapest criteria of the International Association for the Study of Pain for the diagnosis of this disorder. He states that the development of this condition was precipitated by a dislocation of Miss Gartmann’s left shoulder in the work related episode.  He notes that when Dr Horsley examined Miss Gartmann on June 13, 2018 (eight days prior to his examination) there were no signs of complex regional pain syndrome.  He comments that the physical signs of complex regional pain syndrome type one fluctuate quite markedly from time to time. In a report dated April 1, 2016, Dr Blombery comments that the diagnostic criteria are clinical.  I have discussed my views on CRPS in the body of the report. I remain of the view that Miss Gartmann does not have this condition.
5.	Miss Gartmann’s psychological condition.
6.	From an orthopaedic point of view only, Miss Gartmann has a physical capacity to carry out light physical work and clerical duties.  Return to such work would need to be on a graduated basis.
7.	From an orthopaedic viewpoint only, one would expect Miss Gartmann to have a physical capacity to carry out the identified potential job options including various clerical work, administration assistant, receptionist, rental sales person etc.  I would expect Miss Gartmann to have the physical capacity to be able to work as a counselling supporter, community worker and human resources officer.
8.	Clearly, there are a wide range of views in relation to Miss Gartmann’s prognosis and management.  A lay person may quite reasonably ask how, after a slip and fall over six years ago, a young patient can have constant ongoing neck, shoulder and upper limb pain.  They would quite reasonably ask why a patient is unable to move the shoulder through a reasonable range of motion and state that they are unable to use the left upper limb in their everyday life. As outlined above, I am of the view that in the fall, Miss Gartmann sustained subcutaneous and muscular bruising to the region of her left upper chest and shoulder girdle areas. I accept that a minor soft tissue sprain type injury could have been sustained to the cervical spine. Clearly with this sort of fall there can be initial significant pain.  One would have expected recovery over a six to twelve week period.  My view is that it is clear from the outset that Miss Gartmann’s pain was disproportionate to her situation and psychologically based. In the lead up to her fall, she was complaining of headaches and had depression.  Clearly, it is important to exclude any obvious organic reasons for ongoing pain. Clinical examination and radiological investigation have failed to find abnormality.  Rather than accept there has been a significant psychological reaction to the situation, Miss Gartmann continues to be treated as though her ongoing symptoms are organically based only. As expected, ongoing investigations and ongoing symptoms have not helped her pain. One neurologist has made the clinical diagnosis of somatisisation (sic) disorder affecting the left arm. He notes that the striking features are of a non organic disorder. I agree with these statements.  Both he and also a psychiatrist believe that any emotional distress that is being manifested in the form of pain is unconsciously derived.  I would accept that the development of a chronic pain syndrome is involuntary.  I believe that for symptoms to continue over a long period of time, voluntary input is needed.  In most cases in this sort of scenario, the patient loses most of their friends.  Often they become socially isolated.  There is a need however to remain disabled as the sick role, despite its negative effects upon the patient, does bring reward in various forms and allows the patient to socially justify why they may not be able to engage in a wide range of employment, domestic and leisure pursuits. In my view, Ms Gartmann requires appropriate psychiatric treatment. She does not require orthopaedic, neurosurgical or neurological treatment.”
 (sic)
(vi)	The plaintiff also relies on the report of the neurologist, Professor Stephen Davis, dated 29 March 2019.  Professor Davis examined the plaintiff on or about 29 March 2019 and obtained a history of the incident and, in particular, the “doctor” who reduced her left shoulder after informing her that her left shoulder had been dislocated.
At the time of such consultation, the plaintiff informed Professor Davis that she has “continuous and severe neck pain” and is convinced that this is the main cause of such pain, that radiates down her left arm and into her hand, with pain and spasms, together with weakness in the left arm.  She informed Professor Davis she could do “very little with the left arm and for example could not wash her hair or tie shoelaces”.  She can only hold an iPhone in her left hand for a brief period, but this would then increase the pain level.  
Furthermore, she complained to Professor David she has “unremitting headache which correlates with the worsening neck pain”.  She described herself as being depressed and cries “every day”.
On examination, Professor Davis noticed that the plaintiff “seemed to move her neck quite stiffly”.  Furthermore, the plaintiff “seemed reluctant” to move her left arm.  Although noting a slight coolness to palpation of the left hand, there were not trophic changes to the skin, no dysesthesia to touch.  In particular, Professor Davis highlights there was no wasting of any of the muscles in the left shoulder or upper limb.
The plaintiff demonstrated a collapsing non-anatomical give-way weakness of all muscle groups in the left arm and complained of virtually complete anaesthesia to pinprick affecting all dermatomes in the left upper limb.  Reflexes were retained and there were no signs in the lower limbs and no truncal sensory loss.
In his report dated 29 March 2019, Professor Davis stated:
“1.	She presumably sustained some minor soft tissue injuries to the left shoulder and cervical spine in this fall in 2012.
 2.	She has subsequently had protracted and refractory pain syndrome involving the neck and left arm ever since this accident and has essentially unremarkable cervical imaging on an MRI in 2012, minor changes on imaging of the left shoulder and normal neurophysiological studies in the left arm.
 3.	I think the clinical diagnosis here is of a somatisation disorder affecting the left arm. There may be some component of a complex regional pain syndrome Type I which is impossible to disprove. However the overwhelming features are of a functional nature. I think that this should be regarded primarily as a psychiatric disorder.  I do not think that the proposed stimulator would be useful.
 4.	The striking features are of a non-organic disorder. I think that this is most likely mediated at a subconscious level but would defer to skilled psychiatric comment in this regard.  Her findings on examination supported a non-organic disorder with diffuse collapsing weakness in the left arm and anaesthesia of the whole arm, normal reflexes and without muscular wasting.
 5. 	…
 6.	… .”
(vii)	The defendant also relies on the reports of the occupational physician, Dr Robyn Horsley, dated 14 December 2015,  13 June 2018 and 8 November 2019.  Such reports relate to examination by Dr Horsley on 14 December 2015, 13 June 2018 and finally on 8 November 2019.  Such examinations were medico-legal examinations arranged by those acting on behalf of the plaintiff.
At the first examination, Dr Horsley obtained a past medical history involving an appendectomy in 2008 and a cholecystectomy in 2014. 
Dr Horsley obtained a history of the incident and also of the plaintiff attending a “doctor” after the incident and being told that her left shoulder had been dislocated and the “doctor” relocated it, and “it popped into place”.
Dr Horsley obtained a general history of treatments the plaintiff had had up to that date.  
I set out the details of the clinical examination made by Dr Horsley at that time:
“Ms. Gartmann presented as a young woman 175cm tall, weighing 70kgs.  (Pre-injury, she weighed 65kgs).
 Examination of the cervical spine revealed diffuse tenderness on palpation throughout the cervical spine on palpation of the articular pillars and spinous processors.  There was also acute touch sensitivity on palpation through left trapezius and down the left scapula, but no similar touch sensitivity on the right side.  Upper arm circumference was 29cm on the left and 30cm on the right and forearm circumference is 21.5cm on the left and 19.5cm on the right.  (Her symptoms are primarily left sided; she is right hand dominant).
 Neck movement was relatively normal in forward flexion, extension, left and right lateral flexion left and right lateral rotation.
 There was a good range of bilateral shoulder movement in forward flexion, extension, abduction, adduction and internal and external rotation. Apley’s scratch test was normal superiorly and posteriorly.  The test for supraspinatus, the biceps test, the AC joint test and the teres minor subscapularis tests were all negative. 
 Peripheral nervous system examination revealed a global reduction in sensation below the elbow.  There was equally a reduction in temperature sensation and vibration sensation. Reflexes were reduced, but present bilaterally. Using the Jamar, she was unable to move the dial on the left and on the right, she had 20kgs force.  When testing for specific muscle strength on the left side, there was global weakness throughout all the muscle groups of the left arm when compared against the right side.”
Dr Horsley ultimately diagnosed the plaintiff to be suffering with “persistent cranial and neck pain, with subjective symptoms in the left arm of uncertain cause”.  She noted that there was no evidence of complex regional pain syndrome, there being no change in colour, no swelling and no lanugo hair.
In particular, Dr Horsley commented that the “incident” has precipitated a chronic pain syndrome with ongoing neck pain, headaches and subjective symptoms in the left arm in a non-organic distribution, with normal x-rays, MRI scans and nerve conduction studies.  
Dr Horsley noted that the role of a journalist should be within the plaintiff’s physical capacity on the basis that she was able to change posture on a regular basis and the ergonomics of her workstation were sound – although she queried her reliability if she continues to have ongoing severe cervicogenic headaches that occur once or twice per week, and her level of depression and anxiety will need to be actively managed.  
When seen for this on the second occasion on 13 June 2018, based on the history given to her by the plaintiff, Dr Horsley, was of the opinion that the “level of disability has increased” since her last assessment in December 2015, despite “considerable and concerted input by a range of practitioners”.  She considered, on the presentation on that day, the plaintiff had no current capacity for work and that her prognosis for returning to work in the longer term was guarded at best”.
When last seen on 8 November 2019, Dr Horsley obtained a history that the plaintiff had commenced some voluntary work with Ronald McDonald House some three weeks prior to that consultation, but unfortunately it was interrupted by the event involving the sexual assault on the plaintiff by the unknown man outside Ronald McDonald House.
Again, I make reference to the clinical examination on that day.  Dr Horsley states:
“Ms Gartmann was very emotional throughout the interview. She was particularly emotional about the events three weeks ago, outside the Ronald McDonald House.  She presented as a young woman 169cm tall, weighing 68kg.
 Examination of the cervical spine revealed an acute trigger point over the left articular pillars at C3/4 and at C7/T1 level. There were tender points into left trapezius. Upper arm circumference was 27cm bilaterally.  Forearm circumference was 20cm bilaterally. She is right hand dominant.
 There was hypersensitivity on palpation around the cervical spine and left shoulder girdle.  However, as agreed by Ms Gartmann today, there was no change in colour, no temperature difference, and no sweatiness.  I note that complex regional pain syndrome is a condition that does fluctuate.
 Cervical movement was mildly restricted. Forward flexion was normal. Extension was reduced by 20°.  Left and right lateral flexion, left and right lateral rotation were limited in the last 10 to 15°.
 There was a good range of right shoulder movement in forward flexion, extension, abduction, adduction, internal, and external rotation. 
 On the left side, there was a persistent reduction in range of motion. Active forward flexion was 90°.  Active abduction was 90°. Extension was only 20°.  Internal rotation was reduced in the last 10° as was adduction.  External rotation was very limited to 10°.
Using the Jamar, she was unable to produce any power on the left, and produced 30 kilograms force on the right.
It was not possible to objectively undertake the shoulder tests. She was unhappy about moving her arm to do Apley’s scratch test superiorly or posteriorly.  She was unhappy to put any pressure through her arm, to undertake any of the other shoulder tests.”
Dr Horsley also expressed the view that the plaintiff’s capacity to work was primarily impacted by her psychiatric status.
Dr Horsley was of the view that the plaintiff’s “inability to return to work is directly related to her chronic pain and her psychiatric disability”;
225	The defendant also relies on the evidence of the consultant occupational physician, Dr David Barton.  As I have already recorded, Dr Barton was the only doctor called by either side and cross-examined.
226	Dr Barton prepared reports dated 2 February 2018 in respect of a consultation on 1 February 2018, 7 February 2020 in respect of an examination on 5 February 2020 and 6 October 2020, in which he comments on a variety of jobs said to be suitable employment for the plaintiff. 
227	The evidence of Dr Barton (that is, evidence-in-chief, cross-examination and re-examination) is found at transcript 1419 to 1488.  Dr Barton confirmed that he had a Master of Science in occupational Medicine from London University and specialist recognition in the United Kingdom, and also in Australia, as an occupational physician.  He completed his degree in occupational medicine at the end of 1981 and has been working in that field ever since.  He described an occupational physician to be interested in the interaction between work and health.
228	In his first report, Dr Barton sets out the history he obtained from the plaintiff.  In particular, the plaintiff described that she was doing her “normal part-time job at a hotel serving tables” and was walking on a floor which was “quite hard” and had some spilt soft drink, making it slippery.  She slipped backwards, tried to grab herself, and ended up falling forwards amongst table and chairs and ultimately falling on her left side, and was immediately aware of pain in the left shoulder and neck.
229	The plaintiff was taken home that night and the next day sought medical attention from a local clinic and, according to the plaintiff, saw a doctor outside the clinic who apparently assessed her, diagnosed a dislocated shoulder, and put it back in place.  The plaintiff stressed she had pain in her neck all the time and initially this was thought to be referred pain from the left shoulder, or as a result of using a sling for the left shoulder.  The plaintiff also stated to Dr Barton that she had been seen by a neurosurgeon, who told her that her neck was “unstable”.  The plaintiff also complained of ongoing problems, always having pain in the neck and commenced to lose strength in her left arm.  The plaintiff described the various treatments she had undertaken to treat her various pains and problems.
230	At the time of the first consultation, the plaintiff described that she is “really no better” and that the strength in her arm was “getting worse”.  She had ongoing pain and at times her pain is quite severe, mainly centred around the left side of her neck, extending through the top of her shoulder and into the arm.  The plaintiff gave a history that she has headaches “all the time” and at times her headaches are “really, really bad”.  The plaintiff made the comment that her pain was coming from the neck.  The plaintiff gave no prior history of any relevant musculoskeletal problems or injuries and that she had otherwise been well.
231	Examination at that time by Dr Barton revealed the following:
“The worker presents as someone who appeared reasonably calm and relaxed during the consultation.  She was strongly symptom and disability focused with a strong sense of injury.
 As she initially sat in the chair she deliberately rested her left arm in a fully dependent position and left it almost completely still for the early stage of the consultation.  (As a result she developed a physiological change with some slight discolouration of the hand and duskiness. She was then encouraged to rest her left arm across her lap on a pillow that was provided.  This subsequently saw the physiological changes in the hand disappear.  In other words once in this position and maintained for a while there was no temperature, colour or sweating difference between either upper limb.  It is clear that the workers I aware of these physiological changes and appeared to set about producing these findings prior to the examination.  I’m not sure that all doctors appreciate this technique.)
 Careful measurement of arm circumference showed the left arm to be only 0.5 cm smaller than the right, a change fairly typical in normal people in the non-dominant arm.
 There was a normal muscular contour over both shoulders.  There was a normal keratinization pattern in both hands.  There was no wasting in the small muscles in either hand.
Specific examination of the neck showed some moderate tenderness around the left side of the neck with a general limitation of all neck movements with reported pain. She reported escalating neck symptoms with axial loading.
Specific examination of the left shoulder showed a marked limitation of all shoulder movements.  She demonstrated these movements in a slow and tentative manner and frequently the arm collapsed under the weight.
Specific examination of the left upper limb showed no clinical evidence of any nail, hair growth or trophic changes in the skin.  Peripheral pulses were normal as was capillary return.
Reflexes were normal in the upper limbs.  Muscle power was grossly reduced throughout the left arm with a giving way patterns and poor effort. Sensation to light touch was reduced from the left shoulder down to the left hand with the reduction in sensation more pronounced distally.
Reports of the worker’s X-rays and other investigations were included with the enclosed correspondence, and that information will not be repeated here.”
(sic)
232	Further, Dr Barton stated, in his report:
“In this case I do not believe there is any recognised physical problem that the worker has sustained as a result of this incident.  She has been labelled as having ‘chronic regional pain syndrome’ although clearly there is no clinical evidence of this condition.  Unfortunately many practitioners label patients with this condition when there is no clear physical problem for which a more legitimate diagnosis may apply.
 It is clear that there is a strong degree of illness behaviour and I believe a degree of exaggeration contributing to her presentation.  The deliberate resting of the left arm by her side I would see as part of this phenomenon. In addition the following features point towards a degree of functional overlay:
the !ack of any clear objective evidence of any particular physical problem that would account for her symptoms and claimed incapacity;
the limited neck movements which do not fit with any particular underlying physical problem;
the gross weakness on testing muscle power throughout the arm which was clearly feigned;
the atypical and unusual sensory changes throughout the left arm.
 In answer to the specific questions raised in your covering letter I am replying with the following:
1.  	Did your clinical examination reveal any objective findings?- please detail
	As discussed above there were no objective clinical findings. There were however several features pointing towards a degree of overlay.
2.	Specifically, was there any wasting of the left arm muscles?
	There was a 0.5 cm reduction in arm bulk on the left side, a difference which would be considered normal in a right-handed person.
3.	Were there any signs of a non-organic nature? - please detail
	There were extensive non-organic features as detailed above.
4.	If there are signs of a non-organic nature, what is the extent of same relative to any organic signs?
	There were only non-organic signs with virtually no organic signs present.
5. 	From a physical point of view only, does the claimant have the capacity for full time hours of employment?
	From a physical point of view I do not believe that there is any identifiable incapacity.
6.  	… .”
233	Dr Barton re-examined the plaintiff on 6 February 2020.  He obtained a history that the plaintiff had commenced working three months prior to the consultation and that work consisted of two seven-and-a-half hour days each week with The Les Twentyman Foundation.  The plaintiff stated she is the social media officer and attends meetings, makes telephone calls and does computer and office-type work.  The plaintiff commented that mentally it is “so good”, but stated that she is struggling “physically”.  She described her employer to be “understanding” and she can get up and sit down, and walk around, as required.
234	The plaintiff also gave a further history of sustaining a fracture in the right foot at a friend’s place in August 2018, and that the received treatment involved plates and screws, which were subsequently removed.  The plaintiff complained of the fact that she still has ongoing problems with her right foot and ankle and is still “trying to fix it”. 
235	Furthermore, the plaintiff complained that she had been diagnosed with “lymphocytic gastritis” and she was awaiting to see a specialist again, and having further treatment.
236	The plaintiff complained of the similar symptoms as detailed in her first examination and, in particular, the same trouble with her neck and left shoulder.
237	Again, I refer to the examination findings of Dr Barton.  He states:
“While she appeared reasonably calm and relaxed during the consultation she was strongly symptom and disability focused with a strong sense of injury and disability.  She again tended to leave her left arm limply by her side throughout the consultation.
 Measurement of the right upper arm showed this to be slightly larger than the left while forearm circumference was equal on both sides.  There was a normal muscular contour over both shoulders.  There was a normal keratinization pattern in both hands.  There was no wasting in the small muscles in either hand.
 She struggled to remove her top being reluctant to move the left arm much at all.
 Specific examination of the neck showed some mild tenderness around the angle of the neck.  There was a general limitation of all movements with reported pain and discomfort. Axial loading increased her symptoms.
 Specific examination of the left shoulder showed some diffuse tenderness around the shoulder joint.  Shoulder movements were significantly limited with the arm shaking at the extremes of movement.
 Reflexes were normal in the upper limbs.  Muscle power and sensation were both reduced throughout the left arm.
 Reports of the worker’s X-rays and other investigations were included with the enclosed correspondence, and that information will not be repeated here.”
238	Again, Dr Barton was posed various questions and I set out the questions and answers given:
“1.	Did your clinical examination reveal any objective findings?- please detail
There was no objective findings in the left shoulder or neck.
2.	Specifically, was there any wasting of the left arm/hand/shoulder muscles?
No.
3.	Were there any signs of a non-organic nature? - please detail
Yes there were numerous signs including the following:
the lack of any objective evidence of any particular physical problem that would account for such symptoms;
the non-anatomical sensory changes;
the global weakness throughout the left arm that makes no medical sense;
the increase in reported neck symptoms with axial loading;
the marked limitation of shoulder and neck movements that make no medical sense.
4.	If there are signs of a non-organic nature, what is the extent of same relative to any organic signs?
I do not believe that there is any physical problem related to her work and that these nonorganic features indicate her problem is entirely functionally based.
5. 	Do you maintain the opinions you enunciated in your previous report as to the presence of illness behaviour and exaggeration?
Yes.
6. 	From a physical point of view only, does the claimant have the capacity for full time hours of employment?
I do not believe there is any physical incapacity for normal work and normal hours.
7. 	Please review the enclosed vocational assessment report dated 27 June 2018 from Recovre, and provide your opinion as to whether, from a physical point of view, the claimant has the capacity to work on a full time basis in one or more the proposed suitable alternative employment options listed therein (whether immediately or after a graduated return to work).
I believe all of these duties are suitable on a full-time and sustained basis.”
 (sic)
239	In the final report, dated 6 October 2020, Dr Barton notes that he was forwarded a vocational assessment report of CoWork, dated 4 October 2020.  Dr Barton reports that the suggested jobs, involving reception work, journalist work, welfare officer, marketing specialist, human resources management (entry level) and administrative assistant, were jobs that the plaintiff could perform on a “full-time and sustained basis”.
The evidence of Dr Barton
240	During his evidence-in-chief, Dr Barton was asked to clarify and expand on various matters.  In particular, he was queried as to whether or not he formed the view whether the left shoulder of the plaintiff had been dislocated.  The following evidence was given:
Q:	“Can you see that referred there?  Did you form a view whether the shoulder had been dislocated?---
A:	I – I’m sure we’ve all seen footballers who have dislocated their shoulder on the football field and after they dislocate their shoulder they’re usually standing there gripping their arm across their chest and holding it with their other arm, they’re sort of escorted off the field by the trainers and then the physios, medicos, may relocate the shoulder.  If you truly dislocate your shoulder it remains dislocated then you know about it and you seek immediate medical attention. 
Q:	You were provided as part of that report the progress notes of the ladies general practitioner clinic?---
A:	Yes. 
Q:	Within those notes did you have reference to any scans that had been done on the day after the injury?---
A:	I was - - -
Q:	After perhaps she said that she’d been relocated of this shoulder?---
A:	I was aware of some subsequent investigations, I think they were three or four days after the date of injury but as I recall. 
Q:	To your recollection or if you don’t, you don’t, was anything in those scans supportive or unsupportive of the lady having suffered and had relocated a dislocated shoulder?---
A:	Well, the ultrasound taken a few days after the event was reported to be completely with no inflammation, no tearing of tendons, no even irritation of tendons so I would suggest – I would think medically that to dislocate your shoulder, have it put back in a day later that you would not have a normal ultrasound so soon after the event. 
Q:	What would one expect to see on an ultrasound?---
A:	After – freshly after a dislocation there would be fluid in and around the joint and around the tendons, that the bursa would probably be inflamed and with fluid in it and there may be some minor tearing or even major tearing of the tendons around the shoulder joint.”
241	Dr Barton was also queried about the reference to the plaintiff’s neck being “unstable”, to which he gave the following evidence:
Q:	“Did you form any opinion whether this lady’s neck was unstable?---
A:	It’s an unusual diagnosis to make, I mean neck instability is a major medical concern if someone’s had a fracture of the neck and you’re really concerned that the instability may then lead to someone becoming a quadriplegic or a paraplegic.  I’m not sure that the term unstable has any real sort of medical meaning outside that acute or severe neck injury situation.”
242	Dr Barton gave evidence that if the plaintiff had stated in her history that she had had headaches prior to the incident, he would have recorded it.
243	Dr Barton was also queried about the history he obtained from the plaintiff that her “left arm is delayed and the typing is ‘all wrong’”, to which he responded:
A:	“I struggled to find a physical basis for it. I - if my era of working as an occupational physician encompassed the RSI period, which - where people reported profound difficulties with repetitive typing work, and it’s something that I’d not really heard anyone complain of, or reported before.  It was hard to fathom what a shoulder injury would do to make the arm delayed, and why the typing would be all wrong. 
Q:	What about a claimed neck injury, was there anything on the scans or your investigations that understood the reason for this on a physiological basis?---
A:	Well, I didn’t do any investigations myself, but I did review investigations, but I - again I would struggle to identify what net problem might lead to typing being delayed and typing being all wrong.”
244	Dr Barton was also queried about seeking to identify any discolouration in the plaintiff’s left arm and his comments that any discolouration disappeared upon there being a change to the positioning of that arm.  The following evidence ensued:
Q:	“Could you perhaps explain to His Honour really what you mean by all this? What was going on?---
A:	It’s something that you occasionally see in people with arm injuries where they come in, rest their arm completely, limply by their side. And when they sit in the chair they rest it limply by their side. 
Q:	When you say limply by their side - - -?---
A:	Dangling it down, like that. 
Q:	Hanging it - - -?---
A:	Yeah. 
Q:	- - - so that the hand is below the seat of the chair?---
A:	Yes, just resting it there. 
Q:	And what effect does that sometimes have?---
A:	Well, sometimes – always. If everyone in the courtroom decided to do it, and rest their arm by their side – and not move the fingers, not move the wrist – just left the arm, pretend it was completely numb and paralysed – you soon find that after a short period of time that the hand changes colour compared to the other hand, when you’re – when you’re doing things.
Q:	What’s happening? Why?---
A:	Well, it’s – it’s to do with the fact that arterial pressure is at, you know, 120 plus millimetres of mercury, the venous pressure’s only about eight millimetres of mercury.  So the distance between the veins returning to the shoulder to take the blood back to the heart – but the hand is much lower than that, so the pressure of that column of liquid, of pressure in the veins, means that the veins don’t – or the blood doesn’t return as readily back to the heart for – for pumping around again.
Q:	And if the blood doesn’t return, what happens to the colouration?---
A:	Well, you get – you get a sort of a redness and a motley appearance. The more you do it, the more profound it is. 
Q:	So you suggested in this paragraph that there was a change to her – or you encouraged her to rest her left arm across her lap on a pillow?---
A:	Yes. Well, I mean as a way to see whether that’s a true change or just a physiological thing in relation to the posture.  I ask people when I see this behaviour to sort of put the pillow on their lap, rest their hands on their lap, so then of course it’s a different position.  So the hand is no longer that distance below the shoulder.
Q:	And what happens to the blood flow in that circumstance?---
A:	Well it sort of returns to normal.  So because then both hands are in the same position, the hand change – there’s no change or no difference between the two hands.”
245	Dr Barton was queried about what he meant when he performed “axial loading” in relation to the examination of the plaintiff’s neck, to which he replied:
Q:	“Axial loading is something you comment there, just what’s axial loading?---
A:	Axial loading is just putting your hand on top of someone’s head and just gently applying pressure to the top of the head, even in someone with a severe neck injury that doesn’t case [sic] any symptoms, it’s something that is a bit of a trick I guess of looking for genuineness in the patient.”
246	Similarly, Dr Barton was asked what he meant when he used the term “collapsing”, to which he answered:
“… someone makes a movement but then can’t sustain it.”
247	Dr Barton, also, in his evidence-in-chief, confirmed that the six essential movements tested in relation to a shoulder examination include abduction, flexion (which is coming forwards), extension (which is directly behind you like a marching movement) and abduction (which involves crossing the arm over), and internal and external rotation.
248	Dr Barton was also queried about his examination of the left arm revealing no evidence of nail hair growth or trophic changes in the skin.  When queried as to the relevance of these observations, Dr Barton stated:
“Well, some people with extreme reflex sympathetic dystrophy can have changes that the hairs on the back of the fingers can be  – can be lost. That the nails themselves can actually grow at a slower rate and look – and don’t look as healthy and as good and also the skin can undergo sort of texture and sort of flexibility changes in these areas so it’s an examination of the hands, fingers, just to check that the skin and nails, hair growth pattern in normal and equal on both sides.”
249	When queried as to his description that muscle power in the left arm was “grossly reduced”, Dr Barton explained this to mean:
“By grossly I’d mean almost no resistance at all, so no ability to generate power through the muscles at the wrist, hand, elbow or shoulder level.”
250	Again, Dr Barton was asked to explain the meaning of identifying what the test means when he found that sensation of light touch was reduced from the left shoulder down to the hand, to which he stated:
A:	“I usually use a paperclip, and it’s just a light touch, it’s not pinprick, and I just basically with a light touch just run down the different areas of the arm, shoulders, and ask people whether it feels the same both sides.  In this case it was reported as being reduced throughout most of the left arm, and more so distally.  So, as I got further into the hand, the reported difference between the left side and the right side was greater.
Q:	And did you form any opinion as to the physical basis for these complaints, that is, the muscle power being reduced, the sensation on light touch?---
A:	There are certainly reasons why one may have reduced muscle power through a shoulder if one has a shoulder injury.  Or if one has a neck injury with the disc involvement that affects certain muscle groups you may get selective reduction in muscle groups.  In this case there was global muscle weakness and also the global sensory changes. Again the sensory changes - - - 
Q:	When you say global do you mean all muscles along - - - ?---
A:	Well, yeah.  Yeah.
Q:	Down to the fingers?---
A:	The whole of the arm, yes.
Q:	Yes, I follow. Sorry, I interrupted?---
A:	And the same with sensation, that there are three nerves supplying sensation to the right arm. If one of those nerves is affected, say maybe the median nerve giving carpal tunnel syndrome.  Then you have an area of reduced sensation in certain parts of the palm. If it’s the radial nerve it’s certain parts of the forearm, and part of the back of the hand the ulna nerve, usually these two fingers.  So, each nerve has a distribution of sensation.  And if you injure a nerve then you may have sensory loss in a discrete area. Or if you have a disc injury in the neck it may affect sensation in a discrete area, of which there are about six nerves that supply the right upper limb and shoulder area.
Q:	So, perhaps returning to the question, did you form a physical basis for why the lady was grossly reduced in her muscle power throughout her arm?---
A:	Well, it doesn’t fit with the physical problem, with the anatomical understanding of the power and innovation of the arm.
Q:	And the sensation to light touch, did that fit with an anatomical reason?---
A:	No.”
251	Leading Counsel for the defendant queried Dr Barton as to whether the “functional overlay” which he describes in his report was conscious or unconscious, to which he stated:
“In this case I would see it as being conscious, because those findings are ones that one needs to make are conscious decisions to demonstrate.  So if you’re going to demonstrate weakness in the arm,  then you consciously don’t try very hard when you’re asked to push against resistance.  And the same with sensation.  That was just a testing of sensation and asking someone if they felt it.  And to say they didn’t feel it throughout the arm is a conscious decision to say that.  So even though medically it’s difficult to account for.”
252	Under cross-examination, Dr Barton was queried as to whether the anterolisthesis of C3-4 on one of the radiological studies is an indication of “instability” in the neck, in which the following evidence was given:
A:	“The radiological report reference are still image taken at one moment in time. It’s certainly something that is not entirely uncommon, that there’s some slight movement of one vertebral body on the one above or below it.  But it doesn’t imply – that doesn’t imply instability.
Q:	If in fact there’s a CT scan and an X-ray, both showing some anterolisthesis of C3-4, would that indicate there being some non expected anatomical position of C3 on C4?---
A:	If the finding is confirmed that it suggests it’s a constant – constant change. 
Q:	And if in fact that’s done at an acute phase of the injury, would that be consistent with it being caused by muscle spasm in that area?---
A:	It could be caused by muscle spasm, movement of one vertebral body above the other.”
(sic)
253	Dr Barton was also questioned about the finding of “cervical lordosis” and, in particular, whether that could be caused by muscle spasm, which would be indicative of some injury in that area if it is spasming at that time, to which Dr Barton stated:
“It’s a possibility that there is spasm in the muscles that is causing the of the lordosis and that may be contributed to by an injury.”
254	Also, under cross-examination, Dr Barton could not see a link between the condition of glandular fever either predisposing the plaintiff to injury in the incident or that any of the injuries she complains of following the incident are related to either glandular fever or hepatitis in the past.
255	Dr Barton accepted, under cross-examination, that there is Type 1 and Type 2 Chronic Regional Pain Syndrome, as defined by the Budapest criteria, and that vascular surgeons have an interest in such condition.  Dr Barton added that he has interest in the condition, as an occupational physician, in all areas that relate to work capacity, but he is not a treater of such condition, and that he has not done any particular studies in relation to that condition, other than keeping up with conferences, literature and the like.  
256	Dr Barton also accepted the proposition that, in cases of Chronic Regional Pain Syndrome, consistent with the Budapest criteria, symptoms include colour change, temperature change and, in extreme cases, extra hair growth, sweating and pitting.
257	Dr Barton was informed that medical notes at a consultation, about three hours after the plaintiff had a procedure performed on her arm, talked about subluxation and, thereafter, the following evidence ensued:
Q:	“Now, subluxation is partial dislocation, and it doesn’t mean an inability to use the arm, but it means it’s partly out of position. Is that correct?---
A:	The subluxation, as I normally see it, is a reference to a radiological diagnosis. That you stand someone up, do an X-ray, and one shoulder looks a bit lower than the other.  But the shoulder joint is in a fairly significant ligamentous tendon muscle capsule. And it’s either in or it’s out. There’s not much in between, it’s not like - - - 
Q:	Can you have a subluxation of the shoulder joint?---
A:	You can, but as I said, it’s something that’s duly referenced radiologically. 
Q:	And if in fact you do have a subluxation of the shoulder joint, that means partial dislocation?---
A:	Yes. 
Q:	And if in fact you had partial dislocation, just as with various treatments for a dislocated shoulder – if it’s partial subluxation, a movement of that shoulder in an appropriate way will relocate the shoulder; is that correct?---
A:	I’m not sure that it goes back in place like that, if it’s just a reference to a subluxation. 
Q:	So you don’t accept that a subluxation can be reduced by movement without some damage. Is that what you’re saying?---
A:	Well, subluxation is significantly different from dislocation. If you relax your shoulder muscles and relax your arm, then – and you do an X-ray, there may appear to be a subluxation, because when you look at one shoulder compared to the other.  But it’s not coming out of the socket, it’s not coming out of the joint, it’s just – I mean you can hunch your shoulders, you can move your shoulders around, and the relationship between the humerus and the glenohumeral joint of the shoulder can look a bit different, and may be referenced as being subluxed.
Q:	Leaving aside looking different, if in fact there is a damage to that part, it can be partially dislocated, which is a subluxation.  And if it is partially dislocated, by an appropriate movement it can be easily relocated, can’t it?---
A:	I’m not sure that you even need appropriate movement. You just sort of – you know, flex my shoulder muscles and it’s back in place.
Q:	We’ve heard in this case that the plaintiff in the early hours of the Saturday morning – about 12 hours after the fall, she and her friend went to a medical clinic and the doctor was walking into the clinic, she spoke to him, she went into the clinic and the doctor got her to lie down and the friend to hold the right shoulder and he worked on the left shoulder and she felt it slip back into place.  That’s – that sounds like subluxation rather than dislocation, would that be correct?---
A:	Certainly doesn’t sound like a dislocation so, yes.”
258	Dr Barton was queried about his report, which refers to him relying on clinical notes that would suggest there was only a right shoulder problem, and no immediate onset of neck problems.  In particular, Dr Barton was asked that, if someone does have a fall onto their shoulder of a nature that produces bruising of the shoulder and a possible subluxation, would he expect there to be some symptoms in the trapezoid.  The following evidence was given:
A:	“It’s possibly, obviously if you fall on the shoulder and, yes. 
Q:	But if you were assessing that person at that stage the major complaint would be the shoulder complaint if you’ve got bruising on the shoulder and that history and that’s where you’d focus your assessment, would that be correct?---
A:	That’s where you may focus your assessment, yes. 
Q:	The plaintiff goes back to see the doctor some seven days after the fall, six days after the first medical attention and when she goes to the see the doctor then, the doctor records that there is posterior neck trapezoid spasm?---
A:	Yes. 
Q:	Right. Would you accept that the layman or the laywoman would consider that to be neck pain?---
A:	Well, it’s not neck pain, well, a layperson may call it that because obviously we’re talking about the area around the angle of the neck of the trapezoid muscle.”
259	Dr Barton was also cross-examined about the consequences of non-use of the left arm.  In particular, it was put to Dr Barton, with evidence ensuing:
Q:	“And what we have heard from the employers at Ronald McDonald House where she worked for a few hours once a week and from Les Twentyman, where she was a volunteer, and at Les Twentyman where she worked as a – is working two days a week, for the last six months being Covid related but the first period of time being in the place, the fellow workers saw her on a regular basis, regular – frequently saw her with an arm that changed colour and the change temperature when she was undertaking these employments. 
Now, your basic position is that that could only be so if in fact she wasn’t using the arm and held it in a limp position below her body unless she has a medical condition?---
A:	If you can – you can (indistinct) the discolouration by resting the arm in a dependant position, yes. 
Q:	But to do that you have to have it an extended period of non-use and be careful not to move it at all during that time?---
A:	The – if that truly was a consistent pattern of non-use for protracted periods of time then my examination findings would have been different. That there would’ve been significant withering and wasting of the arm. 
Q:	Now, if we can go back to the withering and wasting of the arm.   The plaintiff says that when she went to pain management one of the things, they did was gave her a number of exercises to do for her left arm and they were exercises, and she’s demonstrated to some in the court where she’s pushing elastic band type things, and pulling with her left arm, et cetera, to try and build up the function of her left arm. And she says she has built up the function of the left arm to a certain degree.  But these are exercises she carries out on a regular basis, with the left arm.  If she carries out those exercises on a regular basis with the left arm, they - and including in pool activities as well, that would be something which would inhibit the difference in size that would sometimes develop if you have a non use of the arm?---
A:	I would - I would say that, and - and at other times general using the arm when you don’t realise you’re using the arm. 
Q:	And the plaintiff says that some days her capacity is better than others. Never a capacity to have full use of the arm, never a capacity to have lifting. And then I think she’s - the example I think was of two litres of milk she couldn’t carry in the arm.  And we’ve had the benefit of, I think, two or three hours of film, and over 220 hours of surveillance.  And we’ve seen Facebook photos over six years, and we’ve heard from a number of people.  And throughout the whole of that time there’s no-one indicated that they’ve ever seen her do anything heavy with her left arm.  The Facebook has her leaning forward on one occasion to grab - and touching her head on other occasions, but never lifting anything with the left arm.  If in fact she does those exercises, and if in fact she uses her arms from - some days more than others, it is different to the flail arm, first of all, the flail arm gives you gross wasting, doesn’t it?---
A:	If you don’t do anything with that arm, yes. 
Q:	But if in fact she’s having regular colour changes, whether it’s because of non use, or an underlying chronic regional pain syndrome, that would mean that there has to be - for discolouration to occur there has to be non use, in your opinion?---
A:	Temporary non use, yes. 
Q:	Yes, all right.  We’ve had measurements of temperature differences of five degrees.  Is that significant? ---
A:	That’s not - not - I don’t believe that’s significant. 
Q:	Right?---
A:	You can generate that simply by not using your arm for 10 minutes, and having a scan, temperature scan of both arms. 
Q:	You never measured the temperatures, did you?---
A:	I felt, palpated but noticed no significant discernible difference.”
(sic)
260	Dr Barton, when queried as to whether or not Chronic Regional Pain Syndrome is variable, stated:
Q:	“Now, going back to your reports. In your ‘Current complaints and symptoms’, at p.2 of your first report – when she says, ‘I have no control over it and I cannot commit to things’ – if in fact it’s chronic regional pain syndrome, that’s a type of condition where you do lose control over the function?---
A:	I’m not specifically aware of that being amongst the criteria for - - - 
Q:	One of the things that does exist, though, with chronic regional pain syndrome is a variability. It’s not a constant position?---
A:	It’s very – a lot of the difficulties are – are quite variable; vary over time, vary between patients. It’s not a clear cut situation. 
Q:	And what there is if a person is suffering a chronic regional pain syndrome – there is a diminution in the acuity of the use of the left arm. Not only in strength, but also in performance of the arm – digital dexterity?---
A:	I – I’m not specifically aware, but I would presume that many people would complain of those sorts of difficulties, who have been diagnosed with chronic regional pain syndrome. 
Q:	The plaintiff says that when she tries to type, she knows what keys she’s hitting with each hand, but the left hand is slower.  So the words come out wrong because the coordination is not fully there.  Now, irrespective of what the reason may be for that, if she has an impaired function of the left arm, that’s something you would accept that could occur?---
A:	That difficulty with typing, yes.” 
HIS HONOUR: 
Q:	“The impaired function brought about by what, Doctor? You’re acting on the assumption she’s been told, are you?---
A:	Well, I’ve been – I thought it was in relation to the diagnosed chronic regional pain syndrome.”
MR TOBIN: 
Q:	“If the impaired function is a somatoform disorder, it’s the same consequence, isn’t it?---
A:	Yes, possibly. 
Q:	As an occupational physician, a somatoform disorder is something that you would see from time to time?---
A:	Yes.
Q:	Frequently somatoform disorders originate from a physical condition, and then are perpetuated by a psychological response?---
A:	Yes. 
Q:	And to the extent that if this lady some [sic] developed a somatic form disorder in relation to the – her symptoms including the loss of the – the limited use of her left arm, you would see that as – assuming that to be the diagnosis, as a flow on from the injury she suffered to her left arm?---
A:	Possibly, yes.”
261	Dr Barton accepted that he has had a large medico-legal practice which, for the last few years, has been exclusive in that type of work.  Further, he accepted that “almost exclusively” his work is on behalf of insurers or defendants’ interests.
262	Dr Barton accepted that squeezing a ball is good exercise for improving the function of the arm.  Dr Barton was then queried by Senior Counsel for the plaintiff about the medical term “fasciculations” and the following evidence was given:
Q:	“Right. Leaving aside the possibility of producing the non use of the arm may produce the coldness, how is that done to the arm, apart from it being some involuntary muscle spasm within the arm?---
A:	I - fasciculations can indicate more centre nervous system problems. I’m not aware of it being at all relevant in this lady’s presentation, so I’m not sure what - what the question relates to.
Q:	Some people, lay people have observed it, and some doctors have observed it as well. Now, if in fact that exists, and is a genuine observation, you’re not aware of any ability of the person to consciously produce that physical reaction in the arm?---
A:	Not consciously, no.”
263	Also, I refer to questions to Dr Barton in relation to his second examination about findings of tenderness and discomfort in the neck.  In particular, the following evidence was given:
Q:	“And what you also found on examination was tenderness and discomfort of the neck?---
A:	Yes.
Q:	And you found a limitation of shoulder movements, and the arm shaking at the extreme of movement?---
A:	Yes.
Q:	Now, I assume therefore it’s an active movement, that assessment?---
A:	Yes. 
Q:	And when you mean shaking, as if in fact losing power?---
A:	It’s not losing power, it’s - it’s moving the arm, and - and it’s - and the shaking is seen, I think, when people are struggling to do it, so they’re sort of - you know, just sort of cause tremor, nothing like fasciculations. 
Q:	But you saw that at extreme - extremes. And you also found a diminution in the muscle power of the left arm?---
A:	Yes.
Q:	On examination. The real distinction between - sorry. You have made a number of findings which are, would you agree, consistent with somebody that’s having a chronic regional pain syndrome?---
A:	No, I didn’t find any evidence of chronic regional pain syndrome on examination.”
264	Dr Barton was also queried about the term “pain sensitisation”, which he considered would be a “same school … different label” to chronic regional pain.  When queried as to whether or not such condition has a physical, as well as a psychological component, Dr Barton stated:
A:	“I think the physical component in central sensitisation is difficult to delineate or separate.
HIS HONOUR:
Q:	“Sorry, what was that, Doctor?---
A:	Sorry, the same with the physical component in central sensitisation is difficult to delineate because it’s usually non objective, it’s reported and assessed with testing that requires effort and motivation to do the testing.
Q:	Although I hear often enough that some people say the desensitisation is an organic component in the brain, and therefore the pain symptoms are somehow organically mediated through that?---
A:	Still a lot of debate in medical areas as to whether it’s a true physical situation or whether it’s an attempt to explain a complex set of symptoms that don’t seem to fit with our normal understanding of anatomy and physiology.”
265	Under cross-examination, Dr Barton accepted that the plaintiff, given her course of treatment since ceasing work in 2012 – would have “difficulty in getting employment, yes.”
266	The following evidence ensued:
Q:	“And if in fact those who are employing her at present seeing her work two days per week like her, think she’s a good worker in the sense of output, don’t see her as having capacity beyond two days per week and the employment is, if I can use the word, media type employment at Les Twentyman’s, you couldn’t think of any more suitable type of employment for this young lady than that type of employment, would that be correct?---
A:	I think this work is – that she’s doing is suitable and that as an occupational physician I would see adaptation and physical improvement in capabilities as being an important way of working and increasing your time at work. 
Q:	So, what you would be hoping is that with the passage of time, possibly better treatment, also the stress of the litigation those type of things, there may be some improvement but it’s going to occur quickly?---
A:	Nothing that anyone has said about chronic regional pain syndrome or symptoms are inconsistent with physical activity and that it shouldn’t be done.  In fact, she’s encouraged to exercise, so in other words, being active and doing things is a good way to resolve and assist with her problem. I would see as an occupational physician those activities and physical – and physical things in the workplace as being therapeutic so I would argue that she should be able to increase her hours and her duties at work by reassurance and encouragement that physical activity is good for you and not something that should be avoided and that’s part of the proper pain management programs that should be instituted.”
267	Later in his evidence, Dr Barton stressed it is important to focus on physical activity and exercise, rather than focusing on the medication and, in particular, he stated:
Q:	“Yes?---
A:	That the whole focus is on the treatment and not on work capacity and work, work capability.  And as a result you end up eight years after a fall at work with someone who’s engrossed in her problem, who is having lots of medical experts pontificating about the levels of complex regional pain syndrome, and all that sort of stuff, and yet no-one’s focusing on facilitating her increasing her hours by reassuring her and encouraging her with a graded physical activity program.”
268	When re-examined, Leading Counsel for the defendant posed the situation that if a twenty-seven-year-old girl, for eight years had difficulty with general use of her left arm, such difficulty that she could not make a bed, struggled to set a table, could not handwash, could not lift more than 2 litres of milk, progressed, at best, to holding a cup, needing her mum to wash her hair, struggled to move her top (as Dr Barton observed during one of his examinations) and moved in a tentative manner and collapse her arm, what would he expect in relation to her muscles in the left arm, to which Dr Barton said:
“Well, significant atrophy and withering of the arm”.
269	Again, when queried about the accuracy of some of the reportage of the plaintiff’s symptoms, given that there was not muscle westing, Dr Barton stated:
“Well, to me that undermines the reported level of difficulties when I don’t see any evidence of wasting of the muscles that are involved with all those activities.”
270	Again, when asked about the effect of litigation and, whether in the experience of Dr Barton, that has any effect on the way workers present, he responded “profoundly”.  Furthermore, later Dr Barton, when directly queried about his view about the end of litigation, stated:
“I mean the adage that how can I ever get better if I’ve got to prove that I’m injured applies in cases like this.  How can you possibly get better when this lady for the last eight years has felt the need to prove that she’s injured.”
271	Following on from what Dr Barton said about justifying being sick, it was put to Dr Barton by Leading Counsel for the defendant whether he would be surprised that, in the circumstances, back in 2013 and 2014 the treating physiotherapist and treating neurosurgeon and, indeed, a medico-legal doctor, asserted and recorded a full range of shoulder movements, to which the following evidence was given:
Q:	“…
A:	That wouldn’t surprise me.
Q:	Far different to what you recorded?---
A:	Yes.
Q:	Yes, I see.  What do you thinks led to that decline if that be so?---
A:	The learnt – learnt problem – learning to what she needs to do to pursue this claim. 
Q:	So, in terms of the diagnosis available to us of much was predicated by Mr Tobin’s questioning of you, physical basis for the impediment or the impairment, do you accept that there was a physical basis?---
A:	No, I don’t. 
Q:	It was suggested that it might be somatoform disorder, a somatic psychological illness?---
A:	I believe at a conscious level with the findings on examination that I’d elicited. 
Q:	So, a third aspect, a conscious?---
A:	A functional overlay situation as I see it. 
Q:	And just to cement, which one of the three do you slot into?---
A:	The conscious functional overlay because of the examination findings.”
(sic)
272	Later, after the Court gave various examples of where people may consciously, or unconsciously, demonstrate limitations, Dr Barton commented:
“She’s not out doing handstands. But I believe that when she’s presenting to her - to me, to other people that she sees, that she’s, ‘well, I’ve injured my shoulder.  I can’t move my arm very much.  I must have weakness, so I won’t - won’t demonstrate that.”
(sic)
273	Leading Counsel for the defendant also queried Dr Barton about the importance of a history being given by any particular patient, to which he answered:  
A:	“The old adage, 95 per cent of diagnosis can be made on history, four per cent on examination, and one per cent on investigations, I believe apply, so the history is fundamental.”
HIS HONOUR:
Q:	“I’ve never heard that, I’ve heard the - I’ve never heard that breakdown.  95, four and one, is it?---
A:	Yes.”
MR STANLEY:
Q:	“And if a history isn’t forthcoming what do we say about generally the reliability of the opinion?---
A:	Without a history, you - you have nothing.”
The cross-examination of the Plaintiff
274	The plaintiff was extensively cross-examined over a number of days.  The thrust of the cross-examination was largely related to the credit and reliability of the plaintiff as a witness.  
275	In this respect, I intend to refer to some of the issues raised in the cross-examination:
(a)	Prior medical history
Leading Counsel for the defendant referred to various clinical notes in relation to the plaintiff found in the clinical notes of the clinic, Medical One (that is, the clinic where the plaintiff attended Dr Roziel, her treating general practitioner) and a letter from The Royal Melbourne hospital, dated 23 February 2011.
(i)	The plaintiff was referred to the Medical One notes, and in particular, 14 October 2010, wherein it is recorded:
“C/o throbbing headaches, sob on exertion … looks a bit emotional … Fatigue.” 
When queried about that entry, the following evidence was given:
Q:	“So, it’s a little under two years before the injury?---
A:	Yes, Sir. 
Q:	Just as you’re completing Year 12?---
A:	Yes, Sir.
Q:	And what we see there is you attending at a Dr Lu?---
A:	Yes, Sir. 
Q:	L-u?---
A:	Yes, Sir.
Q:	And you were complaining there of throbbing headaches?---
A:	Yes, Sir.
Q:	And that would be an accurate reflection of how you presented that day?---
A:	Yes, Sir. 
Q:	And it’s likely that you used the term throbbing?---
A:	I had glandular fever. I got diagnosed soon after this. 
Q:	That wasn’t the question, the question was it’s likely you would’ve used the word throbbing?---
A:	I don’t recall, Sir. 
Q:	No. But you accept that the doctor’s recorded an accurate history?---
A:	I – there’s a lot of things I found to be inaccurate from Ursula but I can’t recall what happened ten years ago, Sir. I don’t know if he’s written that because he’s decided to write throbbing or if I’ve said that, I can’t recall. 
Q:	But no doubt you attended for headaches, you accept that?---
A:	I had a headache. 
Q:	And that you accept that is why you went to the doctor?---
A:	I can’t recall, Sir. 
Q:	What I’ll suggest to you is that he’s recorded it accurately in part from what you’re describing to him at the time and that is that you were complaining of throbbing headaches?---
A:	Okay, Sir. 
Q:	Shortness of breath on exertion. Can you recall having a shortness of breath in October of 2010?---
A:	I don’t recall. 
Q:	In combination with headaches?---
A:	I don’t recall, Sir. 
Q:	He goes on to say that on examination, that’s the short form, ‘She’s well but she looks a bit emotional’, can you recall being emotional at the time?---
A:	I was quite stressed, I felt unwell and I was trying to complete VCE. 
Q:	And, indeed, fatigue is there as a reference?---
A:	I think everyone is a bit fatigued in Year 12, Sir. 
Q:	And what the doctor quite rightly did is sent you off for some tests and we can see there some – a referral for some blood tests?---
A:	Yes, Sir. 
Q:	Now, four days later it’s an entry which starts over the page, 18 October?---
A:	Yes, Sir. 
Q:	We can see that you’re back with the results of those blood tests. The doctor advising you no abnormality detected. The headaches had eased off?---
A:	Yes, sir. 
Q:	The doctor was querying migraine?---
A:	Yes, sir. 
Q:	Frontal throbbing with nausea. Can you recall having nausea at the end of Year 12 with headaches?---
A:	I only recall one time, which was possibly this one, when I feel sick. I had a headache and I did vomit.  
Q:	And you say you can recall one time at the end of Year 12?---
A:	That’s all I - - -
Q:	Any other times before this injury in 2012?---
A:	Not that I recall, sir.”
(ii)	The plaintiff was then referred to the entry dated 15 January 2011, where, in part, it is stated:
“Migraine
 Headache since this morning with right throbbing, nausea …
 Currently 5/10, worst at 8-9/10
 Diarrhoea since yesterday …
 [prescribed medication].”
When queried about this particular entry, the following evidence was given:
Q:	“I suggest to you that you turned up to your doctor on 15 January complaining of right, again, throbbing head, with nausea?---
A:	Possibly, sir, yes. 
Q:	The current pain was rated five out of 10. The worst, eight, nine out of 10.  Did you describe to your doctor the pain from a headache in January 2011 as being at worst eight to nine out of 10?---
A:	Possibly, sir. 
Q:	We also note there, ‘diarrhoea since yesterday’, in passing? ---
A:	Yes, sir. 
Q:	The doctor there notes that he has prescribed you Maxolon tablets?---
A:	Yes, sir. 
Q:	For you to take those, one every six hours as needed for nausea and vomiting. Can you recall 18 months before this injury having such severe headaches that are causing nausea that require such medication?---
A:	I can’t - I recall one time, I don’t recall multiple times.”
(iii)	The plaintiff was then referred to an entry dated 14 February 2011, which states, in part:
“since nov 2010 daily HA, daily, not very bad, occasionally verybad HA … .”
(sic)
When queried about that entry, the plaintiff gave the following evidence:
Q:	“Then if we move forward a month we get to 14 February 2011?---
A:	Yes, sir. 
Q:	And there the doctor’s recording you again, ‘HA’, I suggest to you shortage for ‘headache, since November daily’?---
A:	No sir, that’s inaccurate.
Q:	You say that the doctor’s recorded an inaccurate history?---
A:	Yes, sir.
Q:	I suggest to you that that doctor’s recorded that correctly, that indeed come February you were saying to him, ‘Look doc, I’ve had a bad headache every day since two thousand and - November last year’ - do you say that’s not accurate?---
A:	I - I don’t believe - there’s a lot of things that I feel are inaccurate about Dr Roziel, Dr Roziel’s notes.
Q:	Perhaps I’ll come back to your version of events?---
A:	I don’t recall, sir, like I don’t recall, but I do not - definitely don’t recall having a headache every day.  And these headaches are significantly different to the ones I recall from prior to my injury.  They feel significantly different and I - - - 
Q:	I’ll come to how different they are.  I’m just simply identifying what the doctor’s recording.  And the doctor, I suggest, is recording you attending because you had a very bad headache that day in February 2011?---
A:	Yes, sir. 
Q:	A headache that was at the top of your head and it moved to your back?---
A:	Okay. 
Q:	Took whole head. Gradual onset then sudden bang?---
A:	Okay, sir. 
Q:	And that headache was associated with nausea?---
A:	Yes, sir. 
Q:	And I suggest that this all occurred at the time when you just started your NMIT course?---
A:	Yes, sir.”
It was also suggested that the doctor, at that time, referred the plaintiff for a CT scan of her brain, and also arranged a full blood count.  In response to that assertion, the following evidence was given:
Q:	“Can you recall having a CT scan of your brain to assist in diagnosing what was causing these headaches?---
A:	I can’t recall, sir. 
Q:	I suggest that’s a fairly significant referral, that a doctor doesn’t give away CT scans of someone’s brain unless there’s a genuine concern for a real issue that’s at play?---
A:	I - is that a question?
Q:	Well, perhaps it’s a clumsy question.  I suggest that you had the CT scan referred to you because you were in such a bad way over those four months, November 2010 to February 2011?---
A:	I can’t recall, sir, but - I can’t recall.”
(iv)	The plaintiff was referred to an entry dated 16 February 2011, which records that the plaintiff was re-assured about a normal finding on the CT scan and that there was a referral to Professor Robert Helme, a neurologist;
(v)	The plaintiff was referred to an entry dated 18 February 2011, where it records that the plaintiff was essentially telephoned regarding the CT scan, with no abnormality detected, to which the plaintiff said she could not recall that;
(vi)	The plaintiff was then referred to exhibit “N”, the report from The Royal Melbourne hospital and, in particular, the notes regarding her presenting problem, which read, in part:
“Presenting problem: Has been getting headaches since October 2010.  No specific location. Also feeling very tired and weak since then. Headaches are throbbing in nature. Frequency and intensity of headaches getting more frequent ++. Associated with dizziness and nausea. No history of migraines. No aura prior to onset.  3 days ago for the 1st time had tingling in L side of face – which lasted 2 hours. Seen GP 5x since October. CT head done which has been normal. Onset of … with dysphagia.  Also complained or R upper thoracic back pain. No neck stiffness, feeling hot and cold since yesterday … no cough. … .” 
Prior to the reading of that entry, the plaintiff was asked why she attended the Emergency Department of The Royal Melbourne hospital on 23 February 2011, to which the plaintiff answered:
“Because I went to a naturopath and she read my eyes and she encouraged me to go to hospital because she said I’ve either got meningitis or glandular fever and it’s done damage to my liver so I went to the hospital.”
After reading the entry to her, the following evidence was given:
Q:	“And you say that the reason for your attendance at the hospital was in response to advice from a naturopath?---
A:	Yes, Sir.
Q:	And we can see you attending at 1.36 in the afternoon, would that be about right?---
A:	I’m guess – I don’t recall, Sir, but most likely, yes.
Q:	Why would you attend the hospital and not your general practitioner given you’d been undergoing treatment from your general practitioner for these conditions?---
A:	Because my – my naturopath told me to attend the hospital – to go straight to hospital because she told me that I had glandular fever or meningitis and that I needed to go to a hospital. 
Q:	What the doctors record is this, ‘Presenting problem.  Has been getting headaches since October 2010’?---
A:	Yes. 
Q:	‘No specific location. Also feeling very tired and weak since then’?---
A:	Yes. 
Q:	Is that accurate?---
A:	Yes, Sir, I was unwell and headaches were part of what was wrong with me. 
Q:	Since October 2011 and so a good four-month history of headaches?---
A:	Well, I had undiagnosed glandular fever for a while so I did experience headaches, yes. 
Q:	And a four-month history of headaches?---
A:	Possibly, Sir. 
Q:	‘Headaches are throbbing in nature’, is that accurate?---
A:	Yes, Sir. 
Q:	Frequency and intensity of headaches getting more frequent, plus, plus’?---
A:	Yes, Sir. 
Q:	The medical use of plus plus is very - very much so.  That is, what the notation there is really recording is they’re getting a lot more frequent.  Was that the situation in February 2011?---
A:	I can’t recall, sir. I was very unwell. 
Q:	And those headaches were associated with dizzier and nausea? ---
A:	Yes, sir. 
Q:	It goes on to take some - no history of migraines, no aura prior to onset. And then it says this, ‘three days ago for the first time had tingling on left side of face which lasted two hours’.  Can you recall that tingling? ---
A:	I can’t recall, sir. 
Q:	And the three days ago would have taken us back in time to about when you were getting the results from the brain scan?---
A:	Yes, sir. 
Q:	‘Seen the GP five times since October’; I think that’s an accurate reflection because we’ve just touched on those five?---
A:	Yeah. I did visit a lot because I was unwell. I was unwell in this period, I accept that. 
Q:	And what the doctor down the bottom has suggested, the management, ‘follow up initiated’?---
A:	They’ve - yeah. 
Q:		‘If required’ - sorry, ‘suggest review by LMO’, local medical officer, Dr Urszula. Do your recall the Royal Melbourne advising you to go back to your general practitioner? ---
A:	Yes, sir. 
Q:		Now, I’m just going to go back to the clinical notes, if I may.  That set off the chain from which you started to have investigations for your liver function; is that correct?---
A:	Yes, sir.”
(sic)
(vii)	The plaintiff was again referred to the Medical One notes and in particular to an entry dated 14 April 2011, where there was an attendance, and it was recorded “palpitations”.  At that time, it was recorded she was working with her mother in an office.  When queried about any recall of having palpitations, the following evidence was given:
Q:	“Can you recall getting palpitations, your heart was pounding on and off after that week of work?---
A:	I can’t recall, sir. 
Q:	And again would you accept that the doctor’s recorded accurately what you were likely saying to the doctor?---
A:	Yes, sir, but I was also very - I was scared, I – I just had - I’d been in hospital, I’d gotten out, I’d deferred uni.  There was a lot on my mind at this time. 
Q:	When you said you’d been in hospital, do you just mean an emergency attendance?---
A:	I stayed in hospital. 
Q:	You stayed at the Royal Melbourne?---
A:	Yeah.”
(viii)	The plaintiff was then referred to the entry dated 29 April 2011, which reads, in part:
“LUQ pains, reactive depression, anxiety re health”
It is also recorded that she was referred for an ultrasound and an x-ray of the chest.  When queried about this entry, the following evidence was given:
Q:	“The doctors recorded only left upper quadrant pain, reactive depression, anxiety regarding health, is that an accurate reflection of how you were months before the fall?---
A:	I don’t recall, Sir. I was – I recall being anxious when I – like after finding out like with the glandular fever and stuff but I don’t recall - - - 
Q:	The pain must have been such that the plan as we can see there from the doctor is for him to seek for you an ultrasound of your – and a cervical x-ray.  Can you recall the doctor requiring that or suggesting that’s what should happen?---
A:	No. I don’t recall that, Sir.”
(ix)	The plaintiff was referred to the entry dated 4 May 2011, which referred to left quadric pain ongoing, and the plaintiff being in tears.  The doctor referred the plaintiff for a CT scan of her thoracic and lumbar spines, and when asked whether she could recall that situation, the plaintiff replied, [n]o, sir”.
When the Court queried the plaintiff about whether she had any memories about the CT scans and the various complaints, the plaintiff responded:
“I don’t recall - I remember - I recall looking for - feeling unwell and, like there was [sic] procedures undertaken in trying to figure out what that was, and then we found out it was glandular fever. I can’t recall - I can’t recall what is being said right now, I don’t recall this period. I do know that these entries from this particular doctor, which yes, I have to say that, but I’ve stated her - because - like I’ve known for - for a while - I went to her on request from my - my mum thought she was okay, and I - I don’t agree with a lot of things she said, Your Honour.  I don’t believe she’s accurate, and I think she - I would like to hear her explain some of these things as well, because I have been there, Your Honour, when I have said things and she will write things incorrectly.  And I’ve also been there and she will copy and paste symptoms and medications that I have been on years ago, to current things.  And she’s placed migraine and headaches and lots of things on documents that are - it’s incorrect. I - I - - - .”
The plaintiff went on to state that, in 2011, when she experienced glandular fever, she did experience headache, did experience vomiting, did experience muscle pain and tiredness “and all that stuff”, and this was explained by glandular fever.  The plaintiff also stated that towards the end the of 2011 “I felt better”;
(x)	The plaintiff was again referred to the Medical One notes and, in particular, to early May 2011, when she was prescribed Endep and referred to Professor Edward Janus.  The plaintiff could not recall being referred to Professor Janus, nor being prescribed Endep, although he accepted that she was “upset during this time”;
(xi)	The plaintiff was then referred to the entry dated 28 June 2011, where it is reported, among other things, that the plaintiff felt “depressed” and, at that time, the Endep was ceased.  Furthermore, an ultrasound was arranged of the pelvis.
Generally, the plaintiff responded that these events were nine years ago, and that she had had a lot of medication and she does not recall what happened;
(xii)	The plaintiff was referred to an entry dated 7 July 2011, where it was noted:
“discussed with Mary.
 she seems a bit down
 work makes her get up, dress and do things
 mary thinks she has a bit of depression.”
(sic)
When queried about that entry, the following evidence was given:
Q:	“Can you recall that sort of being the flavour of your mother’s impression of you a year before the fall?---
A:	Possibly. 
Q:	And that impression of you was a fair impression, given the way you were behaving a year before your fall?---
A:	As I’ve explained I was upset that [sic] was unwell and I was upset, that I felt like I was falling behind because I was ill and I had to stop my studies, sir.”
(xiii)	The plaintiff was then referred to the entry dated 11 July 2011 which, in part, referred to the brother of the plaintiff having a “whopping” cough and that the plaintiff had also started to cough and experience occasional left chest pains.  When queried as to whether she could recall these matters, the plaintiff answered, “[s]lightly, yes”;
(xiv)	The plaintiff was referred to the entry dated 3 October 2011, where it is recorded the plaintiff was complaining of LUQ pain and, in particular, left upper abdomen pains for the last two weeks.  After putting that entry to the plaintiff, the following evidence was given:
Q:	“Some six months after it first featured as a matter of your presentations. Can you recall having left upper quadrant pain over the six months from April to October the year before your injury?---
A:	I recall it being in the front, Sir.  Around my heart area which is why I think she ordered the tests on my heart. 
Q:	Upper abdominal pains last two weeks?---
A:	Yes. 
Q:	Can you recall having abdominal pains nine months or thereabouts before your fall?---
A:	I experienced a lot of symptoms, Sir, I - - -.”
(b)	Histories to doctors
276	The plaintiff was asked that, when she went to various doctors connected with the subject proceeding, did she inform them of the various matters she was complaining of over that period of time through most of 2011.  The following evidence was given:
Q:	“That much is so.  And when you go to doctors with respect to this case and the injuries you suffered in July 2012, did you tell them about the matters that we’ve been though?---
A:	I have told them about glandular fever, Sir, and - - -
Q:	The doctors - - -?---
A:	That I was upset that I wasn’t able to study that year.  But I don’t think anyone has asked for an in-depth - - -.”
277	It was suggested by Leading Counsel for the defendant that it would be a “nonsense” to describe herself as “well” before the incident.  The plaintiff stated:
“Well, when you look at my life overall I was well.  There was a period of time where I suffered from glandular fever and I wasn’t but overall I was well.  I didn’t experience many issues until I had those issues you’ve just focused on.”
(c)	Surveillance of the Plaintiff
278	The following surveillance was shown to the plaintiff during the course of the trial:
(i)	Video surveillance taken on 10 August 2018, wherein the plaintiff was seen pointing to a cigarette display in a shop with her left arm extended and raised above the left shoulder.
Following the playing of the video, the following evidence was given:
MR STANLEY:
Q:	“Ms Gartmann, was that you that we saw on the film on 10 August 2018?---
A:	Yes, sir.
Q:	We saw you on that film at 10.37 at the Keilor Central shopping centre; is that correct?---
A:	Yes, sir.
Q:	And as the film starts at 10.41 we see you at a shop called CTC, Cigarettes, Tobacco, Cigars; is that right?---
A:	Yes, sir.
Q:	And we see you at that shop bending over at the waist over the counter, your phone in your right hand, and pointing, gesticulating to indicate to the shopkeeper which cigarettes you wished?---
A:	Yes, sir.
Q:	You can recall seeing that?---
A:	Yes, sir.
Q:	And that’s film that you saw at the serious injury application as well?---
A:	Yes, sir. 
Q:	And what I suggest, when you point you do so in a free manner with no restriction seen?---
A:	Some days I can, yes. 
Q:	On the video do you accept that that shows you to move your arm in a free manner with no restrictions?---
A:	Okay, but do you have the rest of it? Do you have the other days as well?
Q:	Of course, we’ll come to another of the matters, I wish to say to His Honour at the conclusion of this case, and I’m putting it to you for comment, that what we saw with that woman pointing for cigarettes was a women [sic] moving her arm with no restriction visible?---
A:	I pointed straight, yes. 
Q:	And I suggest the point was above 90 degrees. It was above the vertical from your body, horizontal from your body?---
A:	Okay.”
(ii)	Video surveillance taken on 13 September 2019, which showed the plaintiff having a lengthy conversation with a woman while standing outside the Brimbank Council offices.  After playing such video, the following evidence was given:
MR STANLEY:
Q:	“Ms Gartmann, was that you we saw in that lengthy conversation outside the Brimbank City Council offices in September of 2019?---
A:	Yes, sir. 
Q:	And who were you conversing with?  Who were you talking to?---
A:	My best friend’s mum. 
Q:	We saw in that video you firstly driving away from your house, I think, at 11.03.  We then pick up the video at about 12.10 – ten minutes past midday, and we saw you behind a wire item.  But then at 12.12 pm the video showed you and your friend’s mum start the lengthy conversation on the side of the car park?---
A:	She’ll be worried about her. 
Q:	Perhaps I’ll come to the matters.  Thereafter I suggest we saw 42 minutes of you engaging in a conversation with your friend’s mum.  Do you accept that’s what we saw?---
A:	Yes, sir. 
Q:	I suggest that what we saw in that 42 minutes was you standing, essentially in the same spot. Do you accept that description of what we saw?---
A:	Yes, but this is very uncommon.”
HIS HONOUR: 
Q:	“Sorry, what was that? I didn’t hear you?---
A:	This is not a usual thing that I do, sir. I went to have a conversation with my friend’s mum, because she was very worried about her.  And she’d asked to meet me on her lunch break, so I took her a coffee.  And we discussed it outside, and there was – like that’s where we were, outside her workplace. It’s not a usual occurrence for me to stand and have an extended conversation with somebody.” 
MR STANLEY: 
Q:	“I suggest within that 42 minutes we saw you standing essentially in the same spot as you’ve agreed, looking happy. Not exhibiting any grimacing or evidence of pain.  Do you accept that?---
A:	Yes.
Q:	We also saw you, I suggest, gesticulating, moving your left arm to emphasise what you were saying?---
A:	That - - - 
Q:	Do you recall seeing that?---
A:	I’ve been encouraged to use my arm as much as possible.  And I have tried to do that. 
Q:	We’ll get to the reasons if we may, but do you accept that you were gesticulating with your left hand, left arm, freely?---
A:	Yes, sir. 
Q:	And at times we saw you lift your left hand up to your face to rub your face, to rub your chin, rub your cheek, touch your ear. Do you recall seeing those times?---
A:	Yes, sir.
Q:	We also saw you lifting your left hand up to your head to adjust your ponytail, to flick your hair at times.  Do you recall seeing that?---
A:	Yes, sir, because I usually carry stuff in my right arm.
Q:	We saw you indeed carrying some keys in your right hand at times, and particularly towards the latter part of the video they [sic] keys were transferred to your left hand.  Do you recall seeing that?---
A:	M’mm.
Q:	And you stood there continuing the conversation for some time with the keys in your left hand?---
A:	Okay. 
Q:	I suggest that really what we saw in that video was you in fact using your left arm more than your right arm.  Do you accept that - - - ?---
A:	Because it was holding stuff in my right arm. 
Q:	Excuse me?---
A:	I was holding things in my right arm.
Q:	What were you holding in your right arm that was restricting its movement?---
A:	My phone and my keys.
Q:	I suggest when it comes time to gesticulating, when it comes time to expressing yourself, we saw you in fact move your left more than your right?---
A:	Okay.
Q:	Is that appropriate to summarise that from the video?---
A:	Yes.”
(iii)	Video surveillance taken on 19 March 2020, talking to a friend, Ms Georgia Hicks, from her car for one hour and twenty-seven minutes.  Following the playing of such video, the following evidence was given:
MR STANLEY: 
Q:	“Ms Gartmann, was that - you were just on mute. Was that you that we saw on that video on 19 February, but predominantly on 19 March 2020?---
A:	Yes, sir. 
Q:	Do you remember that day, 19 March 2020, the day you were in the car, the day you went to the shopping centre?---
A:	Yeah, I went to - I think we went to K-Mart.
Q:	And what’s said on that day is that you left your address driving your Toyota Corolla, and arrived at the Brimbank City Council car-park where you parked next to a Honda CRV.  Is that what took place before that video of you in the car-park commenced?---
A:	You know more than I do, sir.
Q:	Right, okay. But - and then, what we then is from 10.47 in the morning, through to 12.14, you sitting in your car, talking to a woman in a car next to you, a silver Honda CRV. Is that right?---
A:	Yeah.
Q:	And who is that in the car?---
A:	I couldn’t - I couldn’t really tell, but I think it’s my friend Georgia. 
Q:	Do you know Georgia has a silver Honda RV?---
A:	Yeah. 
Q:	And I suggest that we then saw an hour and 27 minutes of you sitting in your driver’s seat, turning towards your right to talk to Georgia in the car next to you?---
A:	Yeah.
Q:	Is that right? And I suggest that what we saw was over that hour 27 you were able to move your neck, your head, freely?---
A:	I was moving.
Q:	We didn’t see any impediment with your ability to turn your neck, turn your head?---
A:	Is that what that was all about? I think you got confused between my left and right arm, sir.
Q:	No, I’m asking about your neck.  You tilt your head to speak to Georgia, toward the right?---
A:	But I’ve tilted my body at times too. 
…
Q:	So, you were tilting your head to the right in a rotation to speak to Georgia?---
A:	Yes. 
Q:	And you adopted - I accepted you moved postures, but you adopted that conversation with Georgia to your right-hand side, sitting in your own car seat for an hour 27 without apparent discomfort; is that fair?---
A:	I moved back multiple times into my seat, sir.
The plaintiff also accepted, during the course of that video, she was seen cleaning the passenger-side door with her left arm in an outstretched manner.  The plaintiff also accepted that the video showed her holding up a “leopard print top” with both hands and, in particular, her left arm was extended above shoulder height in order to show her top to her friend.  The plaintiff also accepted that during the conversation with her friend, the video showed her reaching out with her outstretched left hand holding an iPhone in order to show her friend what was on the phone.  The plaintiff accepted that she appeared happy and, indeed, was happy on that day, being with her friends;
The plaintiff was also shown a video of her dancing the “Nutbush” posted to The Les Twentyman Foundation Facebook account on 21 August 2020.  
In the lead up to showing this particular video, the plaintiff had already stated that when she went to any social events she did “[no]t usually” dance, as it was “a bit weird, dancing with one arm” and that she was not “a big dancer”.
After showing the video, the following evidence was given:
MR STANLEY: 
Q:	“And that was you performing the dance the nutbush?---
A:	Yes, sir, but there were breaks in between that. 
Q:	I suggest that the video we saw didn’t show any impediment?---
A:	That’s because I - - -
Q:	Of you doing that dance?---
A:	I edited it, sir, you can see people appear. It started with just Les, and then it was me and Les, and then - - - 
Q:	Of course. Of course it’s edited, but from what we see on the finalised video do you want His Honour to observe any impediment that you say exists because of your injury?---
A:	What do you mean?
Q:	Well, is there anything there that - I’m going to suggest to His Honour that the woman in that video moved as free as any healthy woman.  Do you want to say anything other than that?---
A:	You say what you want.
Q:	Well, it’s your opportunity, Ms Gartmann.”
HIS HONOUR: 
Q:	“Ms Gartmann, just - I know we’re getting late in the day, but - - - ?---
A:	I did do the nutbush, Your Honour.
Q:	Yes, I know, look you’ve said that.  What I want to know is did you have any difficulty doing it, and if so, what?---
A:	Well, we stopped in between, but I wasn’t really using my arms that much.  And it looks together like it’s all at once, but we would do one and then stop.  And then we would do the second one and stop.
Yes. Yes, thank you.”
(d)	Editing the Facebook entry
279	As I have already recorded, the Court permitted the plaintiff’s Senior Counsel to interrupt the plaintiff’s cross-examination to lead further evidence-in-chief and to tender into evidence exhibit 5, which included a note made by the plaintiff to her instructing solicitor and a Facebook entry said to have been made by the plaintiff on 14 July 2012.  In particular, the Facebook entry stated in part “my shoulder and neck are sore as”.
280	Four days later in the trial, the plaintiff ultimately accepted, under cross-examination, the Facebook entry contained in exhibit 5 was not made by her wholly in 2012 but, rather, was an edited version drafted by her on 22 August 2018, immediately after the inclusion of her serious injury application. 
281	The original posting made on 14 July 2012 – a day after the incident – was identified by reference to the plaintiff’s Facebook Edit History.
(e)	The initial insistence by the Plaintiff that she had deleted her Facebook entries
282	As I have already recorded, after the plaintiff was permitted to tender exhibit 5 – said to be, at that time, an entry made by her on 14 July 2012 – Leading Counsel for the defendant called for the plaintiff’s Facebook entries from 13 July 2012.  Again, as I have already recorded, and following argument, a Ruling was made, permitting access to such entries subject to certain conditions.
283	Initially, the plaintiff asserted that she deleted her personal Facebook “like a while ago”.
284	Under further cross-examination, the following evidence was given:
Q:	“That clearly you were accessing a valid account in 2018?---
A:	Yes, sir.
Y:	The account that you had used between 2012 and 2018?---
A:	Yes, sir.
Q:	You say that subsequent, do you, you have closed that account?---
A:	Yeah, I deleted all - I didn’t want social media anymore, sir.
Q:	In answer to the question, you’ve subsequently closed the account?---
A:	Yes, sir.
Q:	In what way did you close that account?---
A:	What do you mean, sir?
Q:	How did you effect the closure of the account?---
A:	On Facebook.
Q:	Do you simply stop posting, or do you do something more?---
A:	No, you delete the account. 
Q:	Did you delete the account?---
A:	I’m quite sure, yes.
Q:	Quite sure?---
A:	Well, how did I – I don’t have access to the account. 
Q:	Well, I’m asking, what did you do to get us to that situation?---
A:	I deleted it.
Q:	How did you delete it?---
A:	I don’t – I don’t remember – I just got off it, sir, I don’t know how.
Q:	So, the account could still be active you just simply don’t use it?---
A:	I don’t know. I don’t have – I don’t have it.
Q:	Well, I’m asking, that situation seems to be a matter which on your evidence is in the last two years?---
A:	Yes, sir. 
Q:	I’m asking what did you do with your Facebook account so that you now say you don’t have it?---
A:	I deleted it. 
Q:	How did you delete it?---
A:	On Facebook. 
Q:	How?---
A:	What do you mean how? 
Q:	What did you do, you tell us?---
A:	What do you mean what did I do? 
Q:	We haven’t deleted a Facebook account, I’m asking what processes you go through to delete your account?---
A:	You just go to settings and then you delete it. 
Q:	You did not delete the app of Facebook, you still have a Facebook account?---
A:	I have the Facebook app because I use – I have to have a Facebook for work, sir. 
Q:	You recall the password to the old account, the account that had this photograph on it?---
A:	No, sir.
Q:	You don’t recall that password?---
A:	No.
Q:	You had a Facebook account for at least six years between 2012 and 2018?---
A:	Yes. 
Q:	And today you cannot recall the password?---
A:	You don’t use the password – you don’t have to use the password to log in, it stays on.”
The Facebook account was subsequently activated and the plaintiff accepted that it had not been deleted.  In particular, the following evidence was given:
Q:	“You told us that you go to settings and then you delete it. You said on numerous occasions that you deleted your account. Are you now comfortable that you did not delete your account?---
A:	Yes, but I genuinely thought I did delete it, sir.”
(f)	The social life of the Plaintiff
285	During the cross-examination of the plaintiff, the plaintiff was referred to some of her affidavit material and viva voce evidence relevant to her serious injury application.  In particular:
(a)	The plaintiff was referred to her serious injury affidavit, sworn on 2 November 2017, wherein the plaintiff deposed, “I now very rarely go out and socialise with my old friends”.
The plaintiff was referred to her further affidavit, sworn on 9 August 2018, wherein the plaintiff deposed:
“I feel lonely and isolated.  My social life is virtually non-existent.”
The plaintiff was referred to her re-examination during her serious injury application, where she answered as follows:
Q:	“Since you have had this injury, have you maintained the same number of friends as before?---
A:	No, nowhere near.
Q:	Has your social life been the same as it was?---
A:	I do leave the house, I go to the shops, I do get my nails done once very six months, but I have not been like to the city or a party – like I used to be out all the time, I used to enjoy meeting new people and enjoyed being around people, and now I am just too embarrassed to be around them.”
In her evidence-in-chief during this trial, the plaintiff, as I have recorded, also gave evidence that her “injury” has had a:
“… significant impact on my friendships, even my relationship with my parents”.
Again, also in her evidence-in-chief, the plaintiff was queried as to whether or not her friendships had changed in any way since the advent of the “injury”, to which the plaintiff stated:
“Yes, I’ve been through a lot of friends. I’ve lost friends. I’ve withdrawn from people. You know, some of them I’ve lost at my own fault because I have withdrawn but other time, you know, some people have also left me because, you know, I can’t do the things they want to do. … .”
The defendant relies on exhibit “B”, which contains 133 pages of extracts from the plaintiff’s Facebook – such extracts running from 16 July 2012 to 15 October 2017.  Such extracts depict the plaintiff being involved in various social outings, nights out at bars and nightclubs, weekends away, weddings, birthday parties, dress-up parties, road trips, concerts and Sunday drinking sessions at a local hotel.
Other lay witnesses called by the Plaintiff
(a)	The evidence of Mrs Mary Elizabeth Gartmann
286	Mrs Mary Elizabeth Gartmann – who I shall refer to as Mrs Gartmann – gave evidence that she is the mother of the plaintiff and that she lives with the plaintiff, her son and her husband, in Keilor.  She works as an administration worker with DHS Freight Forwarding Company and has been there for fourteen years.  
287	In particular, she gave the following evidence:
(i)	When queried as to what the plaintiff was like in her schooling years as to fitness, engagement in studies and personality, up to the end of finishing secondary school, Mrs Gartmann gave evidence that:
A:	“Well, she was very, very studious, very outgoing, loved playing tennis, volleyball, had lots and lots of friends and was just your normal teenage girl, just wanting to live her life to the fullest. 
Q:	Did she indicate to you during that schooling phase that she had any particular career intention?---
A:	Definitely.  She had - she had her heart set on being a journalist. That’s all she ever wanted to be.”
(ii)	Mrs Gartmann confirmed that, towards 2010, when the plaintiff was in Year 12, she became aware of her having some type of sickness which had caused her to become a “complete wreck”, and which was ultimately diagnosed to be glandular fever and hepatitis.  During this period, Mrs Gartmann gave evidence that the plaintiff was exhausted, had frontal headaches and sore eyes, but in particular, no energy whatsoever;
(iii)	Mrs Gartmann gave evidence that the plaintiff ”had her heart set on” being a journalist and also noted that she performed some voluntary work at Channel 7, and was involved in work experience at Channel 7;
(iv)	Mrs Gartmann, when asked what the health of the plaintiff was like during the first half of 2012, she described it as “perfectly fine”.  She confirmed that she commenced work with the defendant in April 2012 and enjoyed performing such work.  Furthermore, she described the plaintiff, prior to the incident, as:
“Very outgoing … rarely at home … she had … lots and lots of friends and, yes, [a] typical 19-year-old girl out having – having – you know, having – having fun.”
(v)	Mrs Gartmann confirmed that she was home the night that the plaintiff suffered injury and was there when the plaintiff’s friend, Lauren, drove her home.  At that time she – Mrs Gartmann – observed the plaintiff “in pain” and she suggested to her daughter that she be taken to an Emergency Department, but the plaintiff chose to avoid a long wait at night and go straight to the doctors the next morning.  When Mrs Gartmann woke up the next morning, she was advised that her daughter had been to the “doctor”, driven by Tiffany LaRocca, and that her daughter had her left arm in a sling;
(vi)	Mrs Gartmann confirmed that she took the plaintiff to the doctors later that morning and x-rays were arranged to be undertaken on that day, and a certificate was obtained to be given to the hotel.  Mrs Gartmann gave evidence that the plaintiff thought she would “get over it” in that first week or so but, during that time, she had “headaches, neck pain and ꟷ right down her arm”;
(vii)	Mrs Gartmann gave evidence that, prior to the incident, the plaintiff had a holiday booked to go to Vanuatu on a cruise, in September 2012, and the deposit had already been paid.  After the occurrence of the incident, the trip was cancelled because of her ongoing difficulties, which Mrs Gartmann described as “headaches and the pain down her arm and her neck pain”;
(viii)	When queried by Senior Counsel for the plaintiff in relation to the time that Dr Khan commenced to see the plaintiff – approximately twenty months after the incident – did she have any restriction in relation to the left arm, Mrs Gartmann stated, “definitely, yes”, followed by the following evidence:
Q:	“From the time of the accident until seeing Dr Kahn (sic), what restriction did you notice in the use of her left arm, if any, that she was having?---
A:	Well, she couldn’t – well, really, around the house itself she – she can’t – she couldn’t make her bed, she couldn’t – I couldn’t get her to set a table, I couldn’t – she couldn’t hang washing on the line and she couldn’t do any of that sort of thing. 
Q:	What type of problem did you see or what did she manifest with her left arm, what couldn’t she do in the sense of was it range of movement, was it strength or what?---
A:	Strength and movement. She couldn’t lift her arm up past her shoulder or whatever. I mean she couldn’t put her arm up, her left hand up in the air or anything like that. And the strength, she’d lost a lot of strength in her arm. The colour, the colour – her hand would – would change. The temperature would change, the colour would go – change from a – change to a blueish purplish colour and yet there were other days – and she’d say, ‘Touch me hand, hold me hands’ and you could feel the temperature difference in her hands was unbelievable and then some days though just on rare occasions the hand would be completely white.”;
(ix)	Mrs Gartmann also confirmed that, in about August or September 2014, the plaintiff went into the Epworth Hospital for detoxification.  When she was seen in hospital, Mrs Gartmann described the plaintiff as being “a mess, a complete mess” and that it was a “huge struggle” to overcome the opioid addiction.  Furthermore, Mrs Gartmann gave evidence that she did not have many friends around and that her social life around that time was not anything like it had been, and she lost many friends, some of which Mrs Gartmann described as being “really horrible”;
(x)	In response to questions about whether the plaintiff needed assistance with personal grooming – for example washing her hair – the following evidence was given:
Q:	“And her own personal grooming, did you assist her in any way in her personal grooming?---
A:	Yes, I did and I still do. I - not as much now. She has been encouraged to try and do more for herself.
Q:	Right?---
A:	And I was washing her hair, and now I probably wash it twice a month with her now, just to make - yeah. But she tries to do - look, I mean, she’s trying to do as much - she’s trying to improve the movement in her left arm. She’s trying to improve the strength in her left hand and everything. Yeah, so she used - she does try and wash her own hair under the shower now, and - - - 
HIS HONOUR: 
Q:	Can you give me some idea - after 30 years in the law you know a bit about a few things, but not washing women’s hair.  You say you do it about - I think you said about twice a month or - - -?---
A:	Yeah, she would do it in the shower, Your Honour, and then twice - - - 
Q:	How often does she wash her hair? That’s what I am getting at.
Q:	She herself?---
A:	Oh, she probably washes it maybe once or twice a week with - yeah. 
Q:	Okay?---
A:	And I do - I do maybe every second Sunday or whatever. I’ll make sure she - - - 
Q:	So about twice a month for you, and the other times done by her?---
A:	I am. I used to do it more often - - -”;
(xi)	Mrs Gartmann described how the plaintiff, after completing her first degree, obtained an internship at the Herald Sun for two weeks, but she was unsuccessful in that, and then, according to Mrs Gartmann, the plaintiff applied for in excess of eight jobs, and, in particular, the following evidence was given:
Q:	“Were the jobs that she applied for restricted as to what she applied for, or she was applying generally?---
A:	She was applying for anything. She was applying in schools, she was applying – she was applying everywhere. She just – whatever she could – whatever was there, she applied for. 
Q:	Was she able to secure a job after those applications?---
A:	No, unfortunately.  There was (sic) a couple that gave her great hopes and said that she was well and truly in the running, until she had to fill out the paperwork.  And that was where it finished.  As soon as they saw ‘WorkCover’, yes, that was the end of it.
Q:	And was there a situation where at your own employment, there was a prospect of her obtaining employment?---
A:	Yes, there was, sir. Early last year, I think it was, or the end of the year – one of the ladies at work approached me and said, ‘Would Luzinda come back to work again and do some more work for us at work?’, and I said, ‘Look, she’d love to’, because she wasn’t – you know, she just wanted to get out of the house, do anything – and anyway, I said to her, ‘Look, I’m going to be upfront with you, though’.  I said, ‘She is on WorkCover’.  And she said, ‘Sorry, that’s it’.”
(xii)	Mrs Gartmann confirmed that the pain management course undertaken by the plaintiff “did help her” and that those at the clinic were “encouraging her to do a lot of things”.  In particular, Mrs Gartmann gave evidence that the plaintiff is now “picking up – you know, like she is picking up a cup and using a cup and everything now.  And that – that has helped her”;
(xiii)	Mrs Gartmann gave evidence that the plaintiff also did various exercises to help her to try and use her left arm, and she was also involved in swimming.  Mrs Gartmann also gave evidence that, from her observation, there was improvement in her psychological condition;
(xiv)	Mrs Gartmann gave evidence that she became aware that there was an opportunity for the plaintiff to go to Bali and that her attitude to such trip was that “I pushed her out the door”, because she felt she needed a break with people her own age.  Such trip was paid by Mrs Gartmann and her husband;
(xv)	Mrs Gartmann confirmed that, partly by reason of the encouragement in the pain management course, the plaintiff commenced becoming involved in voluntary-type activities – such as The Raise Foundation and Ronald McDonald House and, later, at The Les Twentyman Foundation.  Mrs Gartmann gave evidence that the plaintiff definitely enjoyed the work with The Les Twentyman Foundation, but “it wasn’t her dream”;
(xvi)	Mrs Gartmann was questioned about the extent to which the plaintiff had any social life, was not the same as her peers and the social life of her son, to which she replied, “Definitely not.  Definitely not”, and when queried about what was restricting her social life, the following evidence was given:
“Well, it was a couple of things, really. Her tiredness, her - you know, like - and it would depend on how much sleep she had the night before, and whether or not she was up to going out. There was that, and the - yeah, the way she felt in herself, and also she hated coming to her father and I and asking for money to go out. … .”
(xvii)	Mrs Gartmann was queried about the situation now, whether she needs help with grooming and the life, and the following evidence was given:
Q:	“Now, you mentioned that she was restricted around the house doing various things back in the earlier times, and helped with the grooming.  Has there been any change in her capacity as you see it doing things around the house, or in her grooming over the last two to three years?---
A:	As I said before, she has persevered to push herself - I mean, she tries to wash her hair now, she will put on her makeup and that, but she - but no, as far as - I still do her - make her bed, change her bed and everything because there’s no way she could possibly do that and I will hang her washing out. I do it - I do her washing, hang it out for her because there’s - they’re the sort of things that she can’t do.
Q:	All right. Well, some - - -?---
A:	She has tried. She has tried to do the washing side of things and that, but - m’mm, she - - - 
Q:	Have you - you’re doing things for her. Have you seen her using her arm in a way, at any time, inconsistent with the restriction that you understand - have you seen her lifting weights or doing anything like that?---
A:	Oh, definitely not. Definitely not weights or anything like that.”
(xviii)	Mrs Gartmann was also asked about whether she observed ongoing colour changes in temperature, and in particular the following evidence was given:
Q:	“You spoke about how you saw colour changes and temperature changes and things like that?---
A:	That’s right. Yes, sir. 
Q:	Do they persist?---
A:	Yes, they do. 
Q:	Right.  With what frequency do they occur?---
A:	They can appear - they can just appear at any time. 
Q:	Right?---
A:	Any time. I mean, I must admit in the colder months it is - yeah, is worse but it can happen really any time at all. 
Q:	And when that happens are you able to, by observing it over a period of time, see what triggers that problem? Or is it something that comes without an unknown trigger?---
A:	No, it just – but her arm shakes as well with it, yeah. She has – and she’s got no control, it just continues. 
Q:	You with your left arm indicated a shaking movement. Is she able to stop that voluntarily?---
A:	No, she can’t, no. 
Q:	Have you tried holding the arm?---
A:	Yes. 
Q:	And what happens when you hold the arm?---
A:	It just move – it still moves like that. 
Q:	And when those shakes in the arm come on, does it come on for any period of time, or is it variable?---
A:	It varies, varies. 
Q:	When she has these signs in her arm of change of temperature, change of colour, movement in the arm – is there any difference in the level of pain as she expresses it to you at those times? Or is this independent of the pain?---
A:	It’s independent of the pain, so.
Q:	You spoke earlier about your knowledge of your daughter having headaches.  Does she still complain of headaches or has she stopped complaining of headaches?---
A:	No, she still complains of headaches. 
Q:	And what’s the nature of the headaches that she complains of?  What part of the head?---
A:	Let me rephrase that. She – she doesn’t complain as much now because she’s tried to control it.  Well, she says it’s pointless complaining all the time, so she – she puts up with them.  And it’s a pain down the head and down the shoulder.
Q:	You’ve indicated the back of the head and going into the arm?---
A:	The back of the head.
Q:	Psychologically how does she seem as far as the future?---
A:	Well, what – what will her future be?  That’s the thing, and that’s what her question is too.  We don’t know, we honestly don’t know what. And as I said before, she’s not – and she’s not where she wanted to be.  I mean.  And she’s missed out on the best years of her life.”
(xix)	Mrs Gartmann was queried about the plaintiff’s employment with The Les Twentyman Foundation, and the following evidence was given:
Q:	“To the extent that she’s now in paid employment, earning $450 a week for a couple of days there – what benefit, if any, have you seen that employment being for her?---
A:	Look, they’ve been very good to her actually. They allowed her to go in there – before COVID they’d allowed her to go in and they’d allow her to have quite a few breaks throughout the day. And if she wasn’t coping, she could go down – go and lie down for a while – things like that. They’ve been very, very understanding towards her. 
Q:	What’s the benefit of that employment that you have seen for her?---
A:	She’s – she’s – gives her a reason, gives her a reason. She’s – she enjoys going there, that’s the thing. She really enjoys going there, and – and she’s got the company. She’s got – she’s with other people. She’s not home alone in bed. 
Before my husband got sick, I would come home every lunchtime because I’d be walking out the door, I’d be hearing – I’d be hearing her in her room crying, whatever. And it frightened us, it really frightened us. And I’d come home every lunchtime just to check on her, to make sure she was okay.  I don’t have to do that now, the days that I know that she’s at Les’, because I know she’s okay. 
Q:	When she comes home from working at Les Twentyman - - -?---
A:	M’mm. 
Q:	- - - how does she seem when she comes home physically? ---
A:	Exhausted.
Q:	We understand that she was – before COVID – was working two days a week at Les Twentyman?---
A:	That’s right. 
Q:	To the extent that you saw the level of her pain, exhaustion, et cetera, did you see her as having an ability to work more than two days?---
A:	Definitely not. Since COVID she’s been working at home, and the 15 hours a week that she does at Les Twentyman – she has been able to spread it out over four or five days. And just do it at her own pace so she doesn’t have to try and fit it all in the two days.”
288	Under cross-examination, Mrs Gartmann accepted that the plaintiff had headaches during the period that she was suffering from glandular fever, but generally could not recall when it was put to her, the intensity of such headaches, as recorded in the various medical records.  Furthermore, whatever the state of health of her daughter, Mrs Gartmann expressed the opinion several times, and quite strongly, that her daughter was well and truly over such infection by early 2012, and certainly by the time she commenced employment with the defendant.
289	Mrs Gartmann did give evidence that she recalled the plaintiff undergoing a brain scan because of the ongoing headaches and, furthermore, how the plaintiff was prescribed an antidepressant in May 2011, and ultimately expressed the view, when pressed about the mental health of the plaintiff, that she did not consider her generally depressed and, indeed, the following evidence was given:
Q:	Your evidence that you gave earlier today that your daughter was an outgoing, typical young girl, having fun prior to injury I suggest is overplaying it, and that the reality was that your daughter was not so engaged?---
A:	No, that’s not true, sir. Sorry, it’s not true. And as far as I’m concerned, as a mother, my daughter wasn’t depressed like that and that is one of the reasons I had the discussion with her about going on these antidepressant tablets that this doctor wanted to put her on - because to be quite honest with you, the doctor that she was saying - is seeing - she just hands out the tablets to you. So - and I do not agree. I don’t agree with that.”
290	Examination findings were put from doctors who found virtually full movement of the neck was put to Mrs Gartmann and generally, throughout her evidence, she responded “I don’t’ recall seeing full neck movement”.
291	Indeed, Mrs Gartmann was taken, on various occasions, to opinions and findings of various doctors, inconsistent with her description of her daughter’s movement in relation to the neck, and the left shoulder and arm.  Mrs Gartmann maintained her position throughout this cross-examination that her daughter was limited and, indeed, on occasion, extremely limited in use of her left arm and shoulder.
292	Furthermore, Mrs Gartmann was challenged about her daughter’s social activities and the extent to which she described how those had been affected had been exaggerated and, to this end, she was shown various Facebook exhibits depicting her daughter in various social situations.  Ultimately, Mrs Gartmann, although accepting the social occasions have occurred, described them as more particular and specific occasions and that, in any event, the plaintiff’s social life, to the extent she had one, was significantly less than one would have expected for a young woman of her age.
(b)	The evidence of Mr Andrea Gartmann
293	Mr Andrea Gartmann, the father of the plaintiff, was called to give evidence.  In particular, he gave evidence he was not working because of a medical condition, but prior to that, he was an electrical engineer, having obtained qualifications in his native Switzerland before coming to work in Australia.
294	Mr Gartmann gave evidence that he had not worked for the last two-and-a-half years, and that as a result of the medical condition, he had had a significant amount of chemotherapy over the last eight months, and that “terribly affected” his memory.
295	When queried as to what the plaintiff was like on leaving secondary school, he described her as a “very happy child” who wanted to learn things and was always prepared to work hard to achieve things.  Mr Gartmann confirmed that, from about the beginning of 2011, the plaintiff became sick and such condition was not diagnosed for a while, but ultimately she was diagnosed to have been suffering from glandular fever and hepatitis.  Although he did not recall how long she was treated for glandular fever, he did assert that it cleared up and she got “better”.
296	Mr Gartmann recalled his daughter suffering injury at the defendant’s premises in July 2012 and also stated that, prior to that fall, she had no problems in the months leading up to commencement of work at the hotel and, indeed, no problems during that period of employment up to the incident.  When queried about the night she was brought home after the incident, Mr Gartmann frankly stated he could “vaguely remember” some matters, and that, in particular, she was in pain, and that although he believes it would have been suggested to her to go to a doctor, she did not do so on that particular night.
297	Mr Gartmann described that, at that time, he was working on a Saturday morning, commencing early, and he would usually be up by five o’clock, and he did not see her on that Saturday morning because of such employment.  Subsequently, he described the plaintiff suffering from headaches and pain in her neck, and was seen to wear a sling in relation to her left arm.
298	Although Mr Gartmann had memory of the plaintiff getting treatment generally, he could not recall doctors names or the precise nature of the treatment ꟷ although he did note her left arm appeared to be restricted and her neck painful.
299	In particular, Mr Gartmann noted that, when the plaintiff was taking high doses of Endone it appeared that she was like a drug addict, and it was horrible to watch.
300	Mr Gartmann also gave evidence that over the first twelve months after the incident, he noticed, and was directed by the plaintiff, to look at her arm, and it was, on occasion, a “bluish colour”, and that there was a change of temperature, with the left arm being a lot cooler than the right arm.  He also gave evidence that he recalled this was seen on more than one occasion and, also, she experienced what he called a “twingle”, and that all of a sudden the fingers started “shaking”.  The shaking was independent to the colour changes he observed in the arm.
301	Mr Gartmann also gave evidence of when the plaintiff entered hospital for detoxification, which he described as a “drastic event”.
302	Mr Gartmann also described that, in February 2013, the plaintiff travelled with him to Switzerland to visit his ailing sister.  Mr Gartmann noted that the main reason for the travel to Switzerland was because of his sick sister, and she wanted to see the plaintiff.  Mr Gartmann notes that when the plaintiff was in Switzerland, she just had the “same problems” and that she was on painkillers, and it was not easy.
303	When queried about any observations that he made when the plaintiff was studying in 2013 and 2014, Mr Gartmann noted:
“Well, she - she did suffer, she - she - she had real difficulties concentrating, that was her - she did - she did, yeah, have difficulties concentrating and - and of course made it - made it really hard for - for her studies, that - yeah.”
304	Mr Gartmann was also queried about his daughter’s internship with the Herald Sun and how she had “suffered big time”.  Mr Gartmann also gave evidence that she did apply for other types of employment but was unsuccessful.
305	Mr Gartmann described his daughter as being really down around 2016 and on occasion he heard her crying at night, causing him to check on her to make sure everything was alright.  Mr Gartmann also described the plaintiff in the morning as someone who seemed fine and other times, that she was not fine.
306	When queried about having headaches in 2016, Mr Gartmann said she still had headaches but they were not ongoing and he believed that she was back on some sort of painkillers to control the headaches.
307	Mr Gartmann also noted that over the years from the incident to 2016 his daughter’s social life diminished and that her circle of friends got “smaller and smaller”.  Mr Gartmann also gave evidence that after the pain management course undertaken by the plaintiff at the Epworth Hospital in late 2016/early 2017, he recalls:
A:	“Yes, I do remember and, hang on, I’ll just – because I – that was one of the real good – good part of the whole thing, I think that helped her a hell of a lot with this treatment.  Yes, I think that was –that was real.  
Q:	In what way did you see it helping her?---
A:	Well, when she came back, she started – they teached her how to do exercises and different exercises and she kept on doing it all the time. 
Q:	Right?---
A:	And she’s still doing it.  And I think from the pain management, that was a - a big success actually, to - to the - to the day-to-day, that she - she got a bit - a lot out of this, because - yeah.
Q:	Did it in any way change her attitude in doing things?  You talked about, before, having attitude, or being down.  Did the pain management course in any way improve her attitude?---
A:	I think it has.  I think it has improved her attitude because she - she’s very determined.  She’s very determined to do things, and of course with the exercises over a long period of time it - it made her be able to do more things. 
Q:	What type of exercises are you talking about that she was doing from the pain management course?---
A:	I saw her doing this - she’s got like, you know, the stress, those balls, those stress balls?  
Q:	Right?---
A:	And she’s got like rubber bands, where she does the - the exercises, and - and she’s got like a long snake where she puts on - on the door handle and she pulls, and - and then I saw her, like a - a measuring tape, where she drops it and holds it, and - and lately I’ve seen her, she’s - she was - try and hold, hold a cup. 
Q:	Right?---
A:	The cup with her hand, and then - yeah, she tried - it’s just - I think - yeah, it’s a - from the pain management I think it was - it’s simple steps, but I think it - it helped her, yeah.
Q:	Did you see her using these various pieces of equipment?---
A:	Yeah, I have seen her, yeah. 
Q:	And have you been home mainly over the last two years?---
A:	Yeah. Yeah. I’ve been to hospital for quite a period 9 of time. 
Q:	But home more than when you were working, if I could - - - ?---
A:	Yeah. Yeah. Yeah. 
Q:	And to the extent that you are aware of her using these appliances, is it something that she does frequently, infrequently; can you give some approximation as to how often she uses them?---
A:	She’d - she’d use it nearly - nearly every day, every second day, very, very frequent, yeah.”
308	Mr Gartmann also gave evidence that he was very supportive for the plaintiff to travel to Bali with her friends – he paid for such trip – in order that the plaintiff socialise with her old friends.
309	Mr Gartmann also gave evidence he was fully supportive of his daughter commencing voluntary-type works with such organisations as the Raise Foundation, Ronald McDonald and The Les Twentyman Foundation.  In particular, Mr Gartmann noted that such activities did her “a hell of a lot of good”, in an emotional sense.
310	Mr Gartmann was also queried that after the pain management course and her commencement of various voluntary activities, did he make any observation of her left arm use, to which he answered:
A:	“Well, I think she’s using her left arm, like, for the last three years.  She does use her left arm more - - - 
Q:	Right?---
A:	- - - (indistinct) more than like, previous like, yeah.
Q:	Does she have any restrictions that you observe in her left arm?---
A:	She does.  She has restrictions.   She just doesn’t use it.  I mean, she can’t - she hasn’t got strength, that strength in it.  She - sometimes she wants to open something and she would always ask can you open it for me. She just hasn’t got that - yeah.”
311	Mr Gartmann was also queried about the plaintiff’s employment with The Les Twentyman Foundation and, in particular, what effect that has had on the plaintiff as far as his observations, to which he answered:
A:	“Oh look, it - it’s good for her.  It’s very, very good for her, and I think she likes it.  She likes it.  But I don’t think it’s - she always wanted to be a journalist I think, and for her now, it’s - working at Les Twentyman, she really likes it but it’s not - how shall I say, it’s not really what she really wanted to do.  But it is something that gives her an independence, gives her some - to be somebody, like her friends, they work and they - you know.  So she is one of them.  She is not just a sick person that sits at home and - yeah.  It gives her - I can’t put into words.  It gives her that self-esteem, a lot more self-esteem I think it is, yeah.
Q:	When she comes - are you at home now at times when she comes home from working a day at Les Twentyman?---
A:	Yes. 
Q:	Right. What if any effect do you see her carrying out a - well, I suppose now it’s COVID too, but when she was at Les Twentyman or even now working at home, what if any effect do you see that that day’s work has upon her physically by the end of that day’s work?---
A:	Well, physically before the COVID, physically it had - I might say a big, big strain on her.  She’d come home sometimes and she’d be in tears.  But as she always says, dad, I’m - I’ve got a job and I can’t lose this job.  And even I tell her sometimes, well, if you can’t, you can’t.  But no, she’s determined - determined to go, and I must say - not that I’m happy to have COVID, but with the lockdown and everything she could sort of sort her work out, or maybe - longer period of time, and it was probably easier for her.”
312	Mr Gartmann was also queried as to any observations he has made of “significant change to her physical symptoms over the last three years”, to which he answered:
A:	“Oh look, her physical - physical improvement, she has improved. She certainly has improved, and I have put it to the - probably self-esteem of being able to do the two days, and also she - no, she has. She has improved, but then saying that, it’s good and then of a sudden, woof, back to - it’s not like a - you know, getting better.  It’s always up and down, it’s - you think oh yeah, she’s really doing better, and then there’s this sort of fallbacks (sic). 
Q:	Right.  And to the extent that you see her falling back are you able to see what causes her to fall back, or is - - -?---
A:	Well, it could be - you know, I think sometimes that because - I think sometimes because she tries too hard.  That sort of - I think it’s - because she’s trying that hard, that she overdoes it and then it sets her back and it’ll take her a fair while to build up on that again.”
313	Under cross-examination, Mr Gartmann accepted, consistent with his earlier evidence, that employment with The Les Twentyman Foundation had given her more purpose and a better sense of self-esteem, as did the volunteer work leading up to the paid employment.
314	Under cross-examination, Mr Gartmann accepted that when he and the plaintiff travelled to Switzerland to see his sister, the plaintiff was able to do sightseeing involving walking to various places – in particular, the following evidence was given:
Q:	“But is it also the case that notwithstanding any injury Luzinda may have had, she was able to, herself with you enjoy the trip and engage in activities, and go out sightseeing?---
A:	Yeah, but if - if she would have - if she wouldn’t have had that injury we - she would have obviously not come with me, or would have done all the - the - she would have done a lot more activities than what she actually - what we did.
Q:	Well, why?  What activities are you saying you didn’t do?---
A:	Well, there’s - there’s a lot of activities you can do in Switzerland, we didn’t, we just went maybe out for a walk, or went up on - as you said, on the cable train.  Yeah, that’s - and I say, we went - we went to a lot - a lot of the time we went to that thermal place.”
315	Mr Gartmann was pressed in cross-examination about the plaintiff’s use of her left arm.  Although accepting that she can now for example hold a cup, the witness maintained that from his observations, her arm was still weak, and when queried by Junior Counsel for the defendant as to whether she could lift some plates shown at the place from where Mr Gartmann was giving evidence, he commented that she could not raise her arm above her shoulder.  In particular, Mr Gartmann gave evidence that he did not think the plaintiff could pick up her handbag or 2 litres of milk. 
316	Again, under cross-examination, Mr Gartmann accepted that the plaintiff does have a social life but it is not the type of social life that she used to have prior to her injury.  Furthermore, Mr Gartmann accepted that the plaintiff has remained friends with such people as Georgia Hicks and in addition to her work, the plaintiff would go out weekly to visit friends in terms of having a coffee or going out to dinner or to attend social functions.  Mr Gartmann also accepted that since he has been treated with radiation therapy, the plaintiff would drive him to his various appointments for treatment.
317	Mr Gartmann also described that, after detoxification, the plaintiff ultimately applied for an internship with the Herald Sun, which was very difficult for her, and that she was upset when she did not get further employment as a journalist.  He notes that she did apply for various jobs and was unsuccessful.
(c)	The evidence of Ms Stephanie Carol Gebert
318	Those acting for the plaintiff called Ms Stephanie Carol Gebert, who described herself as being currently a student about to commence a community development course.
319	In particular, she described that she commenced employment with The Les Twentyman Foundation on 24 April 2019 and remained in that position until approximately October 2020.
320	Ms Gebert described, at least while at the time she was there, that The Les Twentyman Foundation was funded by a combination of charities, philanthropic donations and government funding.  Ms Gebert described that all employees, certainly during her time, were on six-month contracts, save for her, who was given originally a twelve-month contract in April 2019 and then renewed for a further six months until October 2020.
321	During her period of employment, Ms Gebert was the plaintiff’s supervisor when she was working as a digital content officer.  Ms Gebert also had contact with the plaintiff when the plaintiff was performing volunteer work with the Foundation but noted that she had face-to-face contact with the plaintiff, being her direct supervisor, until the lockdown during 2020 which involved her still being in contact with the plaintiff but not face-to-face.
322	Ms Gebert gave evidence that the employment duties of the plaintiff involved the following:
“So, Luzinda attends functions that we might have, events, and uploads them, so takes photos, puts a little tagline on them, and then uploads them to our social media, so Instagram, Facebook and website.”
323	Ms Gebert also stated that during the period of time that she – that is, Ms Gebert – was employed, there was only one person with a digital contents base, although a sub-contractor had been brought in for a short period.  
324	Ms Gebert confirmed that the plaintiff was working 15.2 hours a week and that has been the case since she commenced on 8 October 2019.  Initially, those 15.2 hours were worked on a Tuesday and Thursday but there was a degree of flexibility about those two days given she could fit the two days in however she needs, dependent on the needs of the program.  Also, Ms Gebert made plain that when working from home during lockdown, she could work on any particular day as long as the work was done.
325	Ms Gebert confirmed that when the plaintiff commenced as a volunteer, she informed her about her physical limitations and, in particular, said:
A:	“She had told us that she couldn’t lift things.  She couldn’t manoeuvre as much as we had initially sort of expected, with the role, just to attend events.  And that she had difficulty with her neck and her arm. 
Q:	And which arm did she explain she had difficulty with?---
A:	Her left arm.
Q:	And did she tell you, or were you otherwise made aware as to how these difficulties were initially caused?---
A:	Yeah.
Q:	And what did she tell you?---
A:	She told me that in her last job she had fallen and - or she had slipped, rather, yeah, and that’s - that’s what she had said.”
326	Ms Gebert said, during the course of her volunteering, she personally observed physical difficulties and, in particular, stated:
“With very full days there were times where she would ask to leave a bit earlier, or if we had a really big day she would start later, due to pain.”
327	On occasion also, the plaintiff rang and asked to start late, which was due to either her state of pain or something to do with her medication.
328	In particular, Junior Counsel for the plaintiff enquired of Ms Gebert as to what were the demands of the job and the following evidence was given:
Q:	“The physical demands - if I can ask you - of the role of digital content officer, does this job have any strenuous physical component to it as far as what’s required of Ms Gartmann?---
A:	No, not on the two days.
Q:	No.  Is there any heavy lifting involved in the job?---
A:	No.
Q:	Is there any overhead reaching and stretching and those sort of activities?---
A:	No.
Q:	Was Ms Gartmann required to do any lengthy typing or work on a keyboard for long periods?---
A:	No.”
HIS HONOUR:
“Just - - -?---.”
Q:	Sorry, just - - - spell out if you would - I haven’t got a clear picture in my mind at least - - -?---
A:	Yep.
Q:	- - - as to her job about the data - I understand functions are held, and they are put onto Facebook or whatever?---
A:	Yeah.
Q:	How did - just give me an idea - - -?---
A:	Yeah, sure.
Q:	- - - of a normal day.  What would a normal day be?---
A:	Yeah.  So like, we have a cultural kids cricket day, it’s an event, all or youth workers - Les - attend.
Q:	Yes?---
A:	We would - so the program manager would coordinate the day.  Luzi would show up at an agreed time for the event, take photos, livestream - so just live - take live video, and then come back into the office.  The content is written - so if it’s a fuller body of content, that’s written by the program manager, and that is given to Luzi to upload, or if it’s just a point and shoot, so like a photo that you would post up for your socials - and it would just be the tagline that Luzi would put up.
Q:	And Luzi would put the - she’d - just for argument’s sake, she’d attended an event - - -?---
A:	M’hmm.  
Q:	- - - for the foundation, she’d have some footage of that, she goes back to headquarters so to speak, the program manager has written up a dialogue - - -?---
A:	M’hmm.
Q:	- - - and then Luzi would put the dialogue and the photography, whatever she has done, at the site - sorry, the function onto Facebook or whatever it may be?---
A:	Correct.  Correct. 
Q:	And the operation of getting the - what the program manager has devised to go onto that site and indeed getting the footage, whatever it may be - photo or a running video, does that involve the use of the hands on the computer or what?---
A:	When she is writing - yeah, so she would need to use her mouse, and for the taglines she would have to use her computer keyboard. 
Q:	I see.  I see, and then - now, I can understand, does that - just to use the example we’ve been talking about, there’s a function on, she goes to a function in the morning and she takes a video of that, and the program manager of the afternoon has got some dialogue that would go on, so she puts that all on.  Is there a number of these things going on all the time though, are there?---
A:	Yes.”
329	Ms Gebert also confirmed that when the plaintiff is working at the Foundation office (pre lockdown), she had the capacity to take breaks when she wanted to and would be free to walk around, get up, go outside and take a few minutes to come back.  Ms Gebert also gave evidence that sometimes such rests would be taken upstairs in one of the two restrooms upstairs which staff utilised.
330	Furthermore, there could be day substitution depending on the requirements of the work that particular week – for example if an event fell on the Friday, her days would be swapped, and indeed, this occurred on occasion to allow the plaintiff to attend appointments.
331	Ms Gebert described the plaintiff as fitting in well, getting on with all of the staff and with Les Twentyman, and was always there and available.  Furthermore, Ms Gebert described the plaintiff as being a “reliable” employee during this time.
332	Ms Gebert gave evidence that on “busy days” she observed the plaintiff experiencing more tiredness and/or pain, and this would be more often when she was required to drive to various places, not so much a day at the office.
333	Ms Gebert described how she became aware of the plaintiff being in pain when the plaintiff actually told her that she was in pain or she observed the plaintiff doing things when she would “wince”, after which Ms Gebert would say to her go and have a rest and sit down.
334	Ms Gebert described how on one occasion the plaintiff did become upset when various news organisations, one of which was Channel Seven, came to a particular event and the plaintiff had seen people from her past work experience with Channel Seven.  Ms Gebert also noted that on occasions, the plaintiff would bring various lists of things which she had to do and the like, and when queried why she had such lists, she responded that she does not always have a “great memory”.
335	Ms Gebert stated that she never saw the plaintiff use her left arm in any strenuously physical way when working and she also described that on occasion, it appeared to be a different colour, like a “purply blue”.
336	Junior Counsel for the plaintiff queried Ms Gebert whether she would like to have the plaintiff work as a full-time employee, to which she responded “Yes”.  Thereafter, the following evidence was given:
Q:	“And what were the reasons why you didn’t employ her fulltime?---
A:	Luzi told us she could only do two days, or she couldn’t work fulltime. 
Q:	And is that consistent with your own observation over the 12 months that she worked?---
A:	Yes.
Q:	One last question - - -.”
HIS HONOUR: 
Q:	“Just on that - by that question, was there the potential for Luzi to work more than 15 hours a week?---
A:	Yes.
Q:	And she - if the employer was so minded, there was that capacity and she was so minded she could have worked more than 15 hours a week?---
A:	Sorry, can you - - - 
Q:	If the Foundation needed someone, whether it be Luzi or someone else, and Luzi was - thought she could cope with that, Luzi could have got more hours?---
A:	Yes.”
337	Under cross-examination, Mrs Gebert confirmed that from her observations, the plaintiff was able to write well, that is to say, intelligently and coherently and within the keeping of the broader strategy of the organisation.  She has, and continues, to assist with various copy which goes into various publications of the Foundation.
338	Mrs Gebert also confirmed that The Les Twentyman Foundation would have liked the plaintiff to work more hours “if she could manage it”.
339	Mrs Gebert confirmed that when she ceased with the organisation in October 2020, she was still working remotely and that was also “pretty well all of the staff”.  The Court then queried Mrs Gebert as to whether she had any knowledge at all as to whether people had returned at this stage (that is, 24 November 2020) to work in the offices of the Foundation, to which the following evidence was given:
HIS HONOUR: 
Q:	“Do you know – I don’t know if you’ve got any knowledge of this at all – but do you know whether anyone’s returned at this stage?---
A:	Has everyone returned?
Q:	Has anyone returned to the foundation?---
A:	In the office do you mean?
Q:	Yes, not working remotely?---
A:	Yes.
Q:	What, all or some?---
A:	No, just some, and part time. Only two staff part time.
Q:	So all the other full time workers are - - -?---
A:	At home.
Q:	They continue working remotely?---
A:	Yes.”
(d)	The evidence of Mrs Heidi Maria Collins
340	Those acting for the plaintiff called Mrs Heidi Maria Collins, who described herself as being employed by Ronald McDonald House in the capacity of a family liaison officer (“FO”) and had been in that job for almost twenty-five years.  When queried by Junior Counsel for the plaintiff as to the activities of Ronald McDonald House, Mrs Collins stated that the organisation provides accommodation or a home away for children and their families.  In particular, there is a house situated in Parkville affiliated with the Royal Children’s Hospital which is there to look after families, provide them with accommodation, kitchen facilities, the comforts of life, whilst their child is having treatment either as an inpatient or an outpatient at the Royal Children’s Hospital.
341	In answer to a query from the Court, the Ronald McDonald organisation incorporates places in Parkville, North Fitzroy, Monash House in Clayton and also at Ronald McDonald House in Hobart, Tasmania.
342	Mrs Collins gave evidence that she became aware of the plaintiff when she volunteered for work at Ronald McDonald House between late April 2017 and through to October 2019.  During that period of time, Mrs Collins was her supervisor and as a volunteer, the plaintiff was assigned to assist her in her duties.
343	In particular, Junior Counsel for the plaintiff enquired as to the duties of the plaintiff being a “welcome desk volunteer”, to which she stated:
A:	“As a welcome desk volunteer, Luzinda would be sitting out at the front office, so behind the door that you can see behind me.  It’s our front office.  So she would be there answering phones.  If I was on a phone call and the phone kept ringing, she would of course answer that for me.  Take down details – if she could help the family right off, she was very capable in doing that, certainly very intelligent.  So I was always quite confident in her manner with handling phone calls. 
Q:	So she would put families on the wait list.  If it was something that she was unable to answer, she would of course pass the call onto me in the back office.  Her role also was to welcome families, hence the name, ‘welcome desk’.  So, she was there to meet and greet, and to liaise between myself and the front desk.  Our role can often be quite busy, so her role varied day to - you know, each Friday.  Sometimes it was - we used to call it Freaky Friday, or, you know, but it could also be quite quiet.  But yes, her role was there as a support person for myself and to interact with families.”
344	Ms Collins described that the plaintiff generally worked for about “four or so hours” on Friday and although there was a degree of flexibility in the workplace, it was generally in the afternoon.
345	When queried whether there was any strenuous physical activity associated with the role that the plaintiff had, the following evidence was given:
Q:	“Can I ask you a little bit about the demands of the role that Luzinda carried out.  Was there any strenuous physical activity associated with the role that Luzinda had?---
A:	Well, yes.  There - there would be, but her role on a Friday - - - 
Q:	When you say there would be, are you talking about the welcome desk role generally, or are you talking about the duties that Luzinda actually performed?---
A:	The duties that she performed were not - how can I say.  The volunteers in her role because of her ability, or non-ability to do  certain tasks like - not only was she doing welcome - welcoming families and helping us as a team, volunteers would also perhaps have to do - or not have to do, but were asked to help out with regards to perhaps making a bed, for example, ready for a new family that she’s going to be welcoming into the house.  We do rely on volunteers quite a lot here, especially in Parkville, to be able to perform certain tasks, to help ease our workload.  And as a non-profit organisation we also have to meet budget and - et cetera.  That’s a whole different other gamut.  But certainly her role that she performed was adapted to what she could do.  So, I would not ask Luzinda, for example, to do something that she would maybe struggle that particular day on a Friday.  So, she - you know, she might have a good day and say, yeah, I can do that.  You know, we can, you know, show a family around, for example, through the house.  You know, walk upstairs, things like that.  But Luzinda certainly, in her particular on her shift, or her four hours or so.  Was certainly adapted to what she could do for the day.  But generally, it would be a load that wasn’t so heavy, if that makes sense. 
Q:	You mentioned things like making beds.  Did you require Luzinda to make beds?---
A:	No, but it would have been lovely at times if we were really busy that I could have said, ‘Hey, Luzinda, come and help me make a bed’, but I knew I - you know, that’s just something that she wasn’t able to do, so - - - 
Q:	What about things like typing, was she required to do lengthy typing as part of her duties?---
A:	No. No.”
346	Mrs Collins gave evidence that there were some days that the plaintiff did not work those four hours but “not many” and she was described as a “very loyal and dedicated person”.  When she did not attend, the plaintiff would tell Mrs Collins the reasons and they could extend to matters that she would not be “mentally … up to being cheerful and answering the phone” and also, circumstances where she was having “a bad day physically”.
347	Mrs Collins described the plaintiff generally as a “bright bubble” which was important when dealing with families coming in with sick children.  She also described her role there as always “positive”.
348	Mrs Collins also gave evidence that on some days she could tell from observations of the plaintiff that she was “unwell” either physically and/or mentally and in such circumstance, enquiries were made whether she wanted to go home because of her difficulties.
349	Mrs Collins also gave evidence that from an observation of the left arm of the plaintiff, it looked “almost frozen in some ways” and was “quite limp”.  Also, Mrs Collins described it as like “nurse it almost”.
350	Mrs Collins qualified this by saying she did not observe that every shift but, in particular, when she knew the plaintiff was having “a bad day”, and on those occasions, she would nurse her left arm “like a baby”.
351	When the plaintiff was complaining about her arm, she stated that it was “sore and it’s cold”.  Mrs Collins also said that when the plaintiff complained of the arm being cold, she did touch it and it was “cold to touch”.
352	Mrs Collins did state that over the period of time that she had worked with the plaintiff – approximately two-and-a-half years – it was not very often that she told the plaintiff to go home when she was in pain and, ultimately, estimated it was approximately four or five times over that period.  Mrs Collins also gave evidence that she could not see the plaintiff working in a full-time paid capacity as a welcome desk person with Ronald McDonald House.
353	Over the time she was there, Mrs Collins describes the plaintiff as on a day-to-day “she would be able to answer the phone and do things like that but certainly not write or type for very long or do those sorts of office tasks for a long period of time”.
354	Under cross-examination, Mrs Collins agreed that the plaintiff was “good at her job with Ronald McDonald” and was a very competent and intelligent person.  Furthermore, Mrs Collins agreed the plaintiff had a good ability to handle very confronting situations involving families with sick children and that her role of meeting and greeting families and showing them through the house did not cause any problems.  Mrs Collins also agreed under cross-examination that her role with the Ronald McDonald Foundation came to an end following a threat of sexual assault outside Ronald McDonald House and that it was the fear associated with returning to that place of work which brought her involvement to an end.
355	Again, under cross-examination, Mrs Collins believed it was about the middle of the plaintiff’s time at Ronald McDonald House that she touched her left arm and found it to be cold.
356	When Mrs Collins was queried by the cross-examiner in relation to her evidence that the plaintiff would keep her left arm close to her body in a sling-type position and whether she would avoid using the arm at all, the following evidence was given:
A:	“I won’t say at all, because I can’t comment on that. I only know when I would come from this office to the front office.  I never sat with her 24/7. I can’t - - -
Q:	No, I’m just asking you about your observations, Ms Collins?---
A:	My observations when I saw her would be no, she wouldn’t be using it, her arm, she wouldn’t - she wouldn’t be stretching it out and doing things physically with it, no.
Q:	Would you - do you recall ever observing her raise her left arm?---
A:	No. 
Q:	To tie her ponytail or brush, put her hands through her hair? ---
A:	I don’t recall that, no.
Q:	Is it your understanding that she can’t, in effect, use her left arm at all in a functional sense?---
A:	I’m not really sure.  I don’t - I think she can use it, but to what extent, I’m - I can’t comment because I don’t really recall, or have seen her, you know, swing around or do anything, that involves using it.  It doesn’t - - -.”
357	When the Court enquired as to whether or not in her discussions with the plaintiff Mrs Collins formed any view as to whether or not the plaintiff had a social life, she stated:
“I believe so.  I don’t – she never spoke [about] her social life.”
(e)	Other lay witnesses relied on by the Plaintiff
358	The plaintiff also called the following lay witnesses in support of her case:
(a)	Mrs Denise Joy Chavell, who was a next-door neighbour to the Gartmanns and, in particular, has known Mrs Gartmann for forty years, working with her at DHL for the last twenty years;
(b)	Mrs Maree Bobell, who described herself as a senior regional pathway advisor for the Department of Education Victoria in the south-west region.  This was explained to mean a person implementing a range of significant career reforms of the Victorian government and then with supporting skills to be able to provide the best pathway and career advice and career education that can be given to students and government schools.  Mrs Bobell had done this work for ten years and Mrs Bobell had been employed by the Department of Education for ten years but for only two years in this role.
She gave evidence that she knew the plaintiff from approximately Year 11, when her elder daughter, Madelaine, was also in that year;
(c)	Ms Georgia Hicks, who described herself as a support worker for Corrections Victoria.  In particular, her role was specifically to provide support to residents who are out on parole, to be able to provide them transitional skills that they would need to be able to reintegrate back into society and keep them from re-offending.  She gave evidence that she has known the plaintiff since approximately Year 9 or 10, meeting at a mutual friend’s birthday;
(d)	Ms Lauren Cassar described her occupation as an administration officer in the field of temporary fencing services.  She gave evidence that she first met the plaintiff when she was nineteen or twenty, certainly some time after ceasing school.
359	I will not detail the evidence of each of these witnesses save to say that in general, their evidence was concerned with various observations they made of the plaintiff’s activity and, in particular, in relation to the use or lack of use of her left arm.  In particular, there was also evidence about the reduction in the plaintiff’s social life compared to her contemporaries over some number of years.  I do note that some of the witnesses – not all – essentially became advocates for the plaintiff.  
Findings in relation to issues of quantum
360	Before making any factual findings in relation to matters relevant to quantum, it is timely to comment on the presentation of the plaintiff, her reliability and her credibility as a witness.  
361	Throughout her evidence – which was lengthy ꟷ I found the plaintiff to be significantly “injury” focused.  She made it plain during the course of her evidence that she believed she had injured her left shoulder and neck at the time of the incident, and such injury manifested itself by painful and debilitating headaches, a very weak, near-useless left arm, and restricted use of the left shoulder and neck.  
362	Furthermore, the plaintiff had a tendency to blame doctors for taking a wrong history if she did not agree with any proposition put to her based on a history recorded by any particular doctor.  For example I refer to the following:
(a)	Leading Counsel for the defendant, on indicating to the plaintiff that he was to take the plaintiff through Dr Roziel’s recorded clinical notes (that is the Medical One notes), the plaintiff stated, even before the cross-examination began:
“So, I think I know what you’re going to mention here, I want you to know that – so Ursula does copy and paste things and she’s also – sorry you go.”
Later, when there was a recording of “throbbing headaches” due to the time when the plaintiff was suffering glandular fever, Leading Counsel for the defendant asked the plaintiff did she “accept that the doctor’s recorded an accurate history”, to which the plaintiff stated:
“I – there’s a lot of things I found to be inaccurate from Ursula but I can’t recall what happened ten years ago, Sir.  I don’t know if he’s written because he’s decided to write throbbing or if I’ve said that, I can’t recall.”
Later, also again talking of her long-term general practitioner, the plaintiff stated:
“… I went to her on request from my - my mum thought she was okay, and I - I don’t agree with a lot of things she said, Your Honour.  I don’t believe she’s accurate, and I think she - I would like to hear her explain some of these things as well, because I have been there, Your Honour, when I have said things and she will write things incorrectly.  And I’ve also been there and she will copy and paste symptoms and medications that I have been on years ago, to current things.  And she’s placed migraine and headaches and lots of things on documents that are - it’s incorrect.  I - I - - -.”
The plaintiff also criticised other reporting doctors, stating:
“… there’s a lot of things I’ve read throughout this time in reports that are inaccurate that have been stated.  How I answer a question and how someone writes that is not in my control, sir.”
Again, later, the plaintiff stated:
“No, sir, there is a lot of incorrect information in many reports, specifically - I’m not saying this is deliberate or not, but it’s very strange that I’ve read over these reports over time and every doctor that you guys send me to has something very different to what I recall.  That’s - this is what I’m saying, I just - - -.”
Again, the plaintiff states:
“… But what I’m saying is what I perceive to doctors that I am sent to, especially the ones I am sent to from you guys – when I read over them, I – I get – well, firstly every time I’m upset because they’re rude and they’re arrogant, and they – I’ve had them laugh at me, and I’ve had them continuously answer phones and not listen to me. 
They already know what they want to say, sir.  They’re not listening to me. They’re saying what they already know they want to say, and that’s – and how mistreated I’ve been by the people that I’ve been sent to you from you guys is ridiculous … .”
In particular, the plaintiff was very critical of Dr Barton, accusing him of being rude, laughing at her, lifting her arm up when she told him it was hurting, him not caring about that and continuing to do it.
As I have recorded, Dr Barton was the only doctor who gave evidence during the trial, and during cross-examination none of these allegations were put to him by Senior Counsel for the plaintiff.  
363	I did not find the plaintiff a particularly reliable witness and, even allowing for the time which has elapsed since the incident, I found, on occasion, her evidence was vague and inconsistent – this will be made plain when I make particular findings, but to name but one example, the advent of her neck “injury” was the subject of various inconsistent histories.
364	Furthermore, I also consider that the credit of the plaintiff was significantly impugned in relation to what I will refer to as the alteration of the original Facebook entry made on 14 July 2012.
365	I refer to exhibit 5 and, in particular, the Facebook entry said to have been made on 14 July 2012 – one day after the incident.
366	I set out the course of events leading to the tender of exhibit 5:
(a)	As I have already recorded, the Court permitted the plaintiff’s Senior Counsel to interrupt the plaintiff’s cross-examination to tender into evidence exhibit 5, which included the Facebook entry said to have been made by the plaintiff on 14 July 2012 stating, in part:
“You should’ve seen it you would have died of laughter … I slipped so bad on water on the floor at work and went head first.  Hurt soo bad … my shoulder and neck are sore as.  Soooo embarrassing.” 
Four days later in the trial, the plaintiff ultimately accepted, under cross-examination, that the above was not made by her in 2012, but, rather, was an edited version drafted by her on 22 August 2018, immediately after the conclusion of her then serious injury application;
(b)	The original posting made on 14 July 2012 was identified by reference to the plaintiff’s Facebook Edit History.  The original posting read as follows:
“Should’ve seen the footage you would’ve died of laughter. I full slipped on water at work and went headfirst into these tables and chairs … there were legs and feet everywhere ha ha ha … sooo embarrassing.” 
(c)	The plaintiff gave evidence that exhibit 5, that is to say, the edited Facebook entry, was forwarded to the instructing solicitor, with the advice:
“Hey Nancy, 
 I just wanted to say thank you so much for everything you do for me, especially the past few weeks.  On the way home I was looking through my Facebook, I found this uploaded today after my injury.  Of course it’s too late now but just so you know I’m telling the truth.  Thanks for believing in me I know you’ve never doubted me but just so you know I didn’t dream it.  I did see a doctor and he did put it back in and told me it was a slight dislocation.  I’ll speak to you soon.  
 Kindest regards,
 Luzinda” 
The plaintiff gave evidence that she did not advise her solicitors that this was an edited version;
(d)	At the time of the tender of the edited Facebook entry (that is, exhibit 5), and prior to any edit being discovered, the plaintiff was insistent that the commentary be included.  I refer to the following bits of evidence from the plaintiff.  At transcript 381, L29, she stated::
“… there was many comments, sir, I didn’t screenshot all of them, I just screenshot that one because it was obviously important.”
At Transcript 568, Line 1, the following evidence was given:
MR STANLEY:
Q:	“And indeed that was something that you were keen to identify and point out to me, because before the understanding of the Facebook entries, I had been quizzing you and suggesting to you that your neck wasn’t sore at the time of the injury.  Do you remember that?---
A:	Yeah.”
(e)	Again, prior to the edit being discovered, the plaintiff gave evidence that the comment made in exhibit 5 was made contemporaneously with her injury.  The plaintiff also initially stated that she did not recall making the edit in 2018.  I refer to the following evidence:
Q:	“… Did you edit your post?---
A:	I don’t recall editing it, sir.”
And:
Q:	“Why did you add those words on 22 August 2018?---
A:	I don’t know, sir.”
And, again:
Q:	“Why would you do it at all, Ms Gartmann?---
A:	I don’t know, I don’t – I don’t recall doing it.”
And:
Q:	“Why did you not tell the court – why did you tell the court that that entry was made that referenced your shoulder and neck being as sore as , in 2012, when it was not?---
A:	Because I don’t recall doing this, and I really thought that that was written eight years ago, sir.”
And:
Q:	“It was you last Friday who volunteered and urged the court’s attention to the words ‘My neck – are so sore’.  You did so knowing that that was a falsehood?---
A:	I didn’t – I don’t – I didn’t – I don’t – I don’t recall editing this, yes.”
And, finally:
Q:	“I suggest to you that you do have a recall and that your evidence as to not recalling that is a nonsense?---
A:	That’s your - I really don’t, sir, like I really don’t remember writing that.”
(f)	At Transcript 584, L17:
Q:	“You tell me, why do you make those amendments?  Do you have an answer to His Honour?---
A:	No, sir, because I don’t even recall doing it.  How can I answer something that I don’t remember?  I don’t recall ever doing this.”
367	Ultimately, the plaintiff accepted that she did not include the words “shoulder and neck” in the original Facebook entry.  I refer to Transcript 574, L8:
Q:	“Now, do you accept that the words, ‘my shoulder and neck are as sore as’, were not made by you in 2012?---
A:	On this sir, I accept that, but - - - .
Q:	Do you accept that you edited a post prior to then sending it to your solicitors on 22 August 2018?---
A:	Well, obviously. … .” 
368	In their written submissions, those acting for the plaintiff submit that “this editing of an entry to a solicitor is adverse to her credit”, but was intended to be only to her solicitor and that the plaintiff had “no belief that that document would be used at trial”, as indicated by the fact that it was not introduced when she gave evidence-in-chief.  Furthermore, when the document was transmitted to her solicitor, it was following a period where she was under “great stress”, having been cross-examined for an extended period of time (that is to say, in the serious injury presumably).  
369	Furthermore, it is submitted that, the fact the plaintiff considered such editing would be advantageous to the presentation of her claim “is of no significance in the light of medical observation, within seven days of the date of injury of trapezoid spasm” or of any significance “in relation to the determination, nature and extent of the explanation of the nature and extent of the injury suffered by the plaintiff”.
370	To my mind, this misses the point.  It is not to the issue whether or not subsequent events may or may not support an ongoing neck injury, the issue is, the plaintiff saw fit to initially deceive her solicitor in relation to a false Facebook entry and, then, when the entry was brought into evidence – whether it be evidence-in-chief or otherwise, the plaintiff continued to assert that it was a valid entry until such time she was cross-examined as to the changes that she had made to such entry.  
371	In such circumstances, I consider that the plaintiff, in relation to that event, has been deceitful, and maintained that deceit until such time she was pressed by Leading Counsel for the defendant, that it was an edited document, and edited some six years after the event.  Again, the actual editing was only done approximately two years prior to the hearing, and I find it was also deceptive for the plaintiff to maintain, initially, that she had no memory of any changes to the Facebook entry at that, or any, time.
372	The second matter which has concerned the Court in relation to the plaintiff’s credit is the findings by doctors who measured the circumferences of any part of the left arm, compared to the right, or made casual observations of her left arm, compared to the right, that the left arm did not reveal any “wasting”.  Of course, this has to be seen in the context that the plaintiff described her arm on many occasions as virtually “useless”, and initially incapable of picking up anything other than the lightest of objects and even, in later times, to lift not much more than keys, a glass, or a cup of tea.  Furthermore, Dr Barton also gave evidence that, to his observation, not only was there no wasting in the small muscles of either hand and normal keratinisation pattern in both hands.
373	Such consistent findings of no wasting in the left arm raises the issue as to whether the plaintiff’s asserted loss of use of that arm is consistent with such a finding.  I have come to the view that such a lack of wasting does indicate that the arm was used far more than what was suggested by the plaintiff or, indeed, her mother, or some of the other witnesses who gave evidence.  
374	It was argued on behalf of the plaintiff that such maintenance of muscle bulk was due to a variety of exercises given by physiotherapists to assist the plaintiff.  Again, it must be borne in mind that the plaintiff’s evidence is that she can do little with the left hand and arm and, indeed, there is no evidence whatsoever that any exercises given by physiotherapists would have maintained the muscle bulk, as observed by many of the medical practitioners.  Also, it is to be noted that, on several occasions when the plaintiff was required to test the strength of her grip, comparing the “good” right side with the left side, she invariably registered a very small rating, suggesting a lack of power.
375	I also note the video observations of the plaintiff.  I do not put as much weight on the video surveillance as the matters to which I have already referred, noting that it is admitted by those acting for the defendant that there were 228 hours of surveillance of the plaintiff, resulting in three-hours-and forty-two minutes of video, some of which was played to the Court.  
376	I do refer to the following:
(a)	Exhibit “O”, which is surveillance taken on 10 August 2018 depicting the plaintiff seen pointing to a cigarette display with her left arm extended and, to my observation, above shoulder level.  In this respect, the following evidence was given:
Q:	“…
A:	I pointed straight, yes.
Q:	And I suggest the point was above 90 degrees.  It was above the vertical from your body, horizontal from your body?---
Q:	Okay.”
Having now watched the video several times, I do consider that the action was done freely, without any hesitation on behalf of the plaintiff.
It is to be noted that this surveillance was taken eleven days after the plaintiff attended the orthopaedic surgeon, Mr Michael Dooley.  At that time, Mr Dooley found, on examination of the plaintiff, that her movement of the left arm involving forward flexion and abduction, was to 40 degrees and that he noted the plaintiff “resists attempts to passively move the shoulder beyond the active range of motion”.
Furthermore, this surveillance was taken six months after Dr Barton had first examined the plaintiff, at which time he found:
“Specific examination of the left shoulder showed a marked limitation of all shoulder movements.  She demonstrated these movements in a slow and tentative manner and frequently the arm collapsed under the weight.”
(b)	Exhibit “P” was surveillance taken on 13 September 2019 showing the plaintiff having a lengthy conversation with Mrs Bobell while standing outside the Brimbank Council offices.  It is to be noted that Dr Horsley examined the plaintiff on 8 November 2019, being some seven weeks after the standing conversation seen on the surveillance, and took a history of the plaintiff experiencing significantly-reduced standing tolerances.  In particular, Dr Horsley obtained a history that the plaintiff avoids static standing and that her walking tolerance was for twelve minutes.  Examination of the left side revealed a persistent reduction of range of motion and active forward flexion was 90 degrees.  Dr Horsley also noted that it was not possible to objectively undertake the shoulder tests as the plaintiff was unhappy about moving her arm to do the so-called Apley’s Scratch Test superiorly or posteriorly.  The plaintiff was unhappy to put any pressure through her arm to undertake any of the other shoulder tests.
A diagram of the Apley’s Scratch Test was tendered by the defendant and is exhibit “L”.
Furthermore, when the plaintiff attended Professor Davis on 29 March 2019, the plaintiff gave a history that she could do very little with her left arm and, for example, could not wash her hair or tie her shoelaces.  The plaintiff told Professor Davis she could only hold her iPhone in her left hand for a brief period as this would then increase the pain level;
(c)	Exhibit “Q” is the surveillance taken on 19 March 2020, which showed the plaintiff talking to her friend, Ms Georgia Hicks, from her car for one hour and twenty-seven minutes.
It is noted that Dr Barton examined the plaintiff on 6 February 2020, being some six weeks before that piece of video, after which he reported the plaintiff was strongly symptom and disability focused, with a strong sense of injury and disability.  The plaintiff also tended to leave her arm limply by her side throughout the consultation.  Examination of her neck showed some mild tenderness around the angle of the neck and there was a general limitation of all movements with reported pain and discomfort, and axial loading increased her symptoms.  Specific tenderness on examination of the left shoulder showed some diffuse tenderness around the shoulder joint.  Shoulder movements were significant, with the arm shaking at the extremes of movement.
Later in her evidence, the plaintiff gave this evidence in relation to the apparent inconsistencies:
Q:	“And what I suggest, when you point you do so in a free manner with no restriction seen?---
A:	Some days I can, yes.
Q:	On the video do you accept that that shows you to move your arm in a free manner with no restrictions?---
A:	Okay, but do you have the rest of it?  Do you have the other days as well? 
Q:	Of course, we’ll come to another of the matters, I wish to say to His Honour at the conclusion of this case, and I’m putting it to you for comment, that what we saw with that woman pointing for cigarettes was a women moving her arm with no restriction visible?---
A:	I pointed straight, yes. 
Q:	And I suggest the point was above 90 degrees. It was above the vertical from your body, horizontal from your body?---
A:	Okay.
Q:	I suggest that demonstrated movement when pointing for those cigarettes on 10 August 2013 - - -.”
HIS HONOUR:
“’18”.
MR STANLEY: 
Q:	“Sorry, ‘18, is far different to what Mr Dooley sees three days later on 13 August 2018?---
A:	I’ve tried to tell you this whole time, but you won’t listen to me. It changes. Some days I can move it better than others, and I keep trying to tell you that, but you just keep not acknowledging me. 
Q:	I suggest what Mr Dooley saw with that 40 degree movement that we touched on before, is clearly you not giving it all because three days later you moved well beyond that 40 degrees with ease?---
A:	I’ve said earlier.  Okay.”
HIS HONOUR: 
Q:	“Ms Gartmann, I just - you look very tired again.  It’s - you don’t have to obviously agree with any question that’s put by counsel, that’s why he’s putting it to you.  If you want to say, ‘No, I disagree with that’ without a reason, you can say that?---
A:	I know, but sir, I keep – he’s just going to keep drilling me, like just – his opinion of me isn’t important, sir.  I don’t care.  I know – I know the life I’ve lived, and he doesn’t.  So I – I don’t care what he really has to say.  I’m sick of trying – I’ve spent eight years trying to defend myself against people, and I – I’m tired, sir.  I don’t want to any more, you can say what you want.  I know what’s happened, and the people around me know what’s happened.  And I’m sorry, but what Mr Stanley thinks – it’s – I’ve spent too much time getting upset about this stuff, and I’m not – I’m not going to any more, sir. 
Q:	Well, it’s a matter for you.  But again, it’s not so much what Mr Stanley thinks.  Mr Stanley – he’s a barrister, he’s a professional person, putting what he says are facts to you. What he says is on the 10th of August we’ve seen the film - - -?---
A:	M’mm.
Q:	You’d agree that that was an okay day that day?---
A:	M’mm. 
Q:	And then he’s asked you to compare that to what you’re like on the 13th of August, which is three days later when you went to Mr Dooley, so we’ve gone through all of that?---
A:	Yeah. 
Q:	Now, you’ve made the point several times that some days are better than others, and one was better inferentially – what we saw on the 10th of August was a reasonably good day compared to what we say on the 13th of August - - -?---
A:	M’mm.
Q:	But unless you say some response to it, it makes it very difficult to come to a view what you’re thinking about it.  Do you understand what I’m saying?---
A:	Yeah, I know what you’re saying, Your Honour. 
Q:	Anyway, it’s a matter for you.  It’s not for me to tell you how to answer the questions.  But just think about that when propositions are put to you?---
A:	Yeah, but how well I move it, it depends on a variety of things, sir.  Like how much sleep I’ve had the night before, the medication I’m on.  Like there’s – there’s various – there’s various like reasons as to why some days I can move it better than others.  But like I’m just so tired.”
	(sic)
377	Obviously enough, although I have found that the plaintiff set out to deceive the Court in relation to the altered Facebook entry, and indeed, has exaggerated her condition to some extent, it does not necessarily mean that she has not suffered any damage as a result of the negligence of the defendant.  However, I have come to the view that when assessing the evidence of the plaintiff, to be wary of such evidence if not corroborated in some meaningful way.
Findings
378	Between the parties, a large number of reports from treaters of the plaintiff and medico-legal experts were tendered.  Expert evidence was given by general practitioners, physiotherapists, neurosurgeons, neurologists, orthopaedic surgeons, occupational physicians, physicians, a psychologist and a series of psychiatrists.
379	A large range of diagnoses have been proffered, a few based on an organic condition, more based on a psychological or psychiatric condition, and some a combination of both.  In some cases, there is a clear division of opinion as to whether the plaintiff suffers a certain condition – for example whether or not she has suffered and/or continues to suffer the diagnosis of “Complex Regional Pain Syndrome Type 1 (CRPS1)”.
380	As I have recorded, the only expert witnesses cross-examined were Dr John Barton, an occupational physician retained by the defendant, and a Mr Phillips, a physiotherapist, who treated the plaintiff in the early days after her injury.
381	Of course, it is a matter for the parties as to how they run their cases and the Court must obviously consider all of the evidence when making findings.  The Court cannot speculate as to what one witness or another may have said if challenged about their views expressed in their respective reports.
382	It has been submitted by those on behalf of the defendant that the plaintiff failed to give adequate histories to various doctors and thus the opinions expressed by such doctors are virtually “worthless”.  I should add, leaving aside whether or not the plaintiff was meagre in her histories, seemingly many of the defendant’s doctors had been provided with, for example, the clinical notes of the Medical One clinic that the plaintiff attended – see the report from Mr Dooley wherein he refers to various matters contained in those notes.
383	The Court can do no more than assess the evidence before it and giving what weight to that evidence it sees fit in all of the circumstances.  Of course, this is in the context that it is ultimately for the plaintiff to prove, as a matter of probability, that the negligent act of the defendant was a cause of any alleged “damage” suffered by her.
384	As I have already recorded, both parties have provided written submissions which have been of some assistance in making the general findings that I now set out:
(a)	The plaintiff is a twenty-nine-year-old single woman who lives with her parents and brother at the family home.  She attended secondary school and completed Year 12 – her VCE – in 2010.  On the basis of the evidence of both her father and mother, I find that she was a good student, enjoyed sporting events, particularly tennis, and had an active social life;
(b)	During Years 11 and 12, she had work experience with Channel Seven and again, based on her evidence and that of her parents, together with some friends, she decided that she wished to be a journalist and, in particular, a television journalist.  To such end, she gained entry to a tertiary course at the RMIT, consisting of a television/screen media course, commencing in 2011;
(c)	She commenced, and after a few weeks of that course, she suffered undue tiredness and headaches and, ultimately, was diagnosed as suffering glandular fever, causing her to defer her RMIT course.  She was particularly ill over a large part of 2011 but towards the end of that year improved and certainly had recovered by early 2012.  During late 2011, she did some further work experience with Channel Seven and was advised to change her course to a Bachelor of Communications, which she did, and which was to commence in 2012 and run for approximately two-and-a-half years;
(d)	The plaintiff commenced employment with the defendant on 10 April 2012 as a waitress and bar attendant.  When she commenced such job, she was in good health and, in particular, I do find that she had recovered from the glandular fever condition and had been in good health for some period prior to her commencement with the defendant.  In particular, I do find that the glandular fever condition is in no way connected to any symptoms suffered by the plaintiff as a result of her fall on 13 July 2012.  However, I do find the plaintiff gave little or no hint to the doctors that she had suffered significant headaches during the period of the glandular fever, bearing in mind that she was alleging serious headaches after the incident on 13 July 2012, albeit she claimed the headaches to be in a different part of the head;
(e)	On 13 July 2012, the plaintiff slipped and fell during the course of her employment, causing her left shoulder to strike a table;
(f)	Initially, I make the following findings in relation to any organic injury to the left shoulder as a result of the fall on 13 July 2012.  After a consideration of all the evidence, I do find, consistent with the evidence of Mr Dooley who had available the clinical notes, that the injury to the left shoulder consisted of some bruising over the anterior left shoulder and upper chest region.
I am not persuaded that the plaintiff suffered a dislocation or subluxation of the left shoulder as a result of her fall on 13 July 2012.  I have come to such conclusion for the following reasons:
(i)	Although I do accept, with some reservation, that the plaintiff and Ms LaRocca attended the Medical One clinic early on the morning of 14 July 2012 and seemingly, saw some person inside the clinic on that morning, the plaintiff has maintained over the years that she had a dislocated shoulder which was improved by some type of activity of the person she believed to be a doctor.  That is her evidence.  Somewhat remarkably, Ms LaRocca, who gave evidence that she went into the clinic and sat with the plaintiff, holding at one stage her right arm for some period of time, could give no evidence at all as to what she understood was done on that day, could give no evidence as to what she heard in discussion between the person and the plaintiff, and indeed could give no evidence as to any discussion with the plaintiff after that occurrence of what did occur;
(ii)	I also find it remarkable that the plaintiff, well knowing that this had been an issue in the serious injury application, has made no enquiry of the Medical One clinic – her medical clinic – as to who that person was on that morning and what was precisely undertaken by that person on that morning;
(iii)	I also find it remarkable that the plaintiff, when she attended the clinic a few hours later on that day in company with her mother, made no mention of the initial contact with that person earlier in the morning, or indeed at any time, to her initial treating doctors;
(iv)	I also refer to the evidence of the occupational physician, Dr Barton, who was also of the opinion that there had been no dislocation of the left shoulder, partly on the basis that there would have been signs of such dislocation on the ultrasound of the left shoulder undertaken on 18 July 2012.  The ultrasound was reported as normal.  I should add that on the evidence before him, Mr Dooley was also of the opinion that it was unlikely that a dislocation had occurred;
(v)	Furthermore, over the years, on various occasions, there have been examination findings revealing a completely normal left shoulder examination – for example, the examination by Dr Blombery, one of the treating doctors of the plaintiff, on 15 October 2014, at which time she had a full range of movement of the left shoulder;
(vi)	I am left with the assertion of the plaintiff as to what occurred on that morning, and as stated earlier I am wary of accepting such evidence in the absence of any corroboration;
Reference was made to the MRI scan of the left shoulder undertaken on 13 January 2014 which revealed some subacromial bursitis but with no further significant abnormalities noted.  None of the orthopaedic surgeons who have seen the plaintiff gave this particular finding any particular significance, and again I stress, for example, that when the plaintiff was seen by the occupational physician initially on 14 December 2015, Dr Horsley reported there was a good range of bilateral shoulder movement in forward flexion, extension, abduction, adduction, and internal and external rotation.  Furthermore, the application of Apley’s Scratch Test was normal, superiorly and posteriorly.
In all the circumstances, I do not find any ongoing left shoulder organic injury;
(g)	In relation to any other organic injury suffered by the plaintiff as a result of her fall on 13 July 2012, I do find on balance, again consistent with the evidence of Mr Dooley who had available the clinical notes, that the plaintiff could have suffered a minor muscular ligamentous strain to the cervical spine.  My hesitation in finding such an injury is based on the unreliable histories given by the plaintiff.  I refer to the following:
(i)	In her Claim Form dated 26 July 2012, which only identified a left shoulder injury with no reference to any neck injury;
(ii)	The clinical notes of Medical One first refers to neck stiffness complained of by the plaintiff on 29 August 2012, although there is a reference to neck spasm on 20 July 2012;
(iii)	The history given to the physiotherapist, Mr Jon Snowsill, on 23 April 2013 was that her neck symptoms and headaches apparently developed about two months after the fall.  Similarly, the plaintiff’s history to the occupational physician, Mr John Lange, on 21 November 2012 was that she experienced pain in the left shoulder for a few weeks and then started developing spasms and headaches.
Notwithstanding this unreliability on the part of the plaintiff, I accept ultimately that it would have been possible for her neck to be jolted in the fall and that may well be demonstrated by the spasms which were recognised on 20 July 2012.  However, again, I consider such injury to be of a soft tissue nature and in the normal course of events would have been short-lived.
It is to be noted that on 7 November 2012, the plain x‑ray of the cervical spine involving the flexion extension views gave rise to a report of a “slightly exaggerated anterior translation of C3 on C4 but otherwise there is normal vertebral body alignment”.  Each of the neurosurgeons who examined the plaintiff, that is Dr Caroline Tan, Mr Paul D’Urso and Mr Daryl Nye, all considered this was of no significance and being a permanent abnormality in the spine.  
Again, various examinations over the years have shown the plaintiff to have a good range of neck movements and various MRI scans of the neck had shown no particular abnormality.  There is no evidence of any disc lesion or nerve compression.  
It is also to be noted, the surveillance of the plaintiff taken on 19 March 2020 which showed the plaintiff talking to her friend, Ms Georgia Hicks, from her car for one hour and 27 minutes, during which time the plaintiff had her neck turned to the right, speaking from her driver’s seat to the other driver facing a different direction.  Such film suggested she had no difficulties maintaining that position;
(h)	I do find that following the incident on 13 July 2012, the plaintiff commenced to complain of pain in her left arm, shoulder and neck (although the neck pain may have started shortly after the initial incident), and thereafter was treated with a battery of tests, exposed to various treatments involving physiotherapy, CT‑guided injections, and, in particular, with opioid medication, largely consisting of Targin and Endone.
Indeed, this treatment, all of which had little impact on her ongoing complaints of pain, culminated in the general practitioner advising the plaintiff that she had an addiction to opioids and causing her to ultimately undergo a detoxification carried out on 1 September 2014.  Such detoxification consisted primarily of a ketamine infusion, which caused great distress to the plaintiff.  Although there were suggestions by some doctors, the condition of the plaintiff was brought about by iatrogenic means – that is to say, a condition caused by medical examination or treatment, and in this case, particularly the prescription of increasing doses of opioid medication.  Whether this be wrong or right, it does not impact on the plaintiff as she was only following the various directions of the doctors.
I also find that the plaintiff attempted to return to work in April 2013 and September 2013 with the defendant and could not cope.  Furthermore, her treating general practitioner referred her to the psychologist Ms Dayana Noor, who first consulted with the plaintiff on 24 June 2013, obviously recognising that there were psychological issues which were predominating.  I also note that the plaintiff attended Switzerland with her father in February 2013 to visit the ailing sister of her father.  Her father gave evidence before the court and I found him a reasonably straightforward witness who did have some difficulties with memory, no doubt due to the treatment that he was undergoing for a cancer.  He made the point that although his daughter and he did do some sightseeing, she was unable to do all the things that perhaps a normal tourist would.  I accept such evidence;
(i)	On all the evidence before me, I do accept that the plaintiff was definitely incapable of any work over the period from when she ceased work with the hotel up until the end of 2014 – that is to say, after the detoxification;
(j)	I do find that the plaintiff had suffered pains in her left arm, shoulder and neck, and such pains had persisted well after one would have expected any organic injury to the neck and shoulder to have ceased.  Again, considering all of the evidence, I have formed the view that the plaintiff has continued to suffer such pains in her neck, shoulder and arm, but such pains are not organically based but have their origin in psychological issues.  In this respect, I do not accept the diagnosis that the plaintiff has suffered some sort of adjustment disorder, because the question has to be adjustment to what – some doctors have suggested an adjustment to the dislocation of her left shoulder, which as I have already indicated I do not accept occurred.  I think it far more likely that the plaintiff had suffered a condition variously described as a pain disorder as diagnosed by Dr Jager, or perhaps more correctly called a Somatic Symptom Disorder as described by the psychiatrist Dr Nigel Strauss in his report dated 4 February 2020.
In this respect it is to be noted that Dr Strauss, in his report dated 4 February 2020, states this:
“This woman’s situation from my perspective has become more complex but certainly I am now more confident that she suffers from a significant somatic symptom disorder and that much of her physical symptomatology is psychologically based.
I note that since her fracture in her foot she has suffered from ongoing physical symptoms in the foot which probably cannot be explained on organic grounds.  This is an example of this woman’s tendency to manifest psychological distress in the form of physical pain.
Furthermore I have become aware of her rather substantial history of abdominal symptoms for which there is no apparent organic cause.  Again I believe that much of her abdominal symptomatology is psychologically based on an unconscious level.”
It is to be noted that Dr Strauss obtained the original history that the plaintiff had described no family history of psychiatric illness.
I also again refer to the evidence of Mr Dooley, who, as I have noted, did have the available clinical notes at the time of his examination, and was aware in general terms of her past history, of which, in particular, he stated:
“Accepting the soft tissue injury that Miss Gartmann sustained as outlined above, it is my view that the constancy and intensity of her ongoing pain and her described disability are far greater than one would expect to see for her organic condition.  I believe that Miss Gartmann has had a psychological reaction to her situation and that this reaction dominates her current clinical presentation.  Most injuries, illnesses etc are accompanied by a psychological reaction that varies in its degree.  This reaction can be influenced by a patient's personality, their past experiences in life, their past experiences in relation to mental issues etc.  In the attached documentation, I note that Miss Gartmann saw her local doctor in October of 2010 noting tiredness, dizziness, throbbing headaches and difficulty sleeping.  Ongoing symptoms in this regard are described through to February of 2011 when Miss Gartmann attended the Accident and Emergency Department of Royal Melbourne Hospital complaining of her ongoing headaches.  It was thought that she might have glandular fever.  In June of 2011 she was seen by her local doctor with symptoms of tiredness and feeling depressed.  Prior to this she had been placed on Endep (amitriptyline).  In July of 2011 it was thought that Miss Gartmann was depressed.  It is my clinical experience that when patients sustain soft tissue musculoskeletal injury in compensable circumstances, they are far more likely to have a significant psychological reaction to their situation when they are depressed or experiencing emotional stress due to whatever situation.  I accept that I am reviewing Miss Gartmann six years after the episode.  My view would be that from almost at the outset, Miss Gartmann' s pain and disability have been far greater than one would expect for the injury sustained.  Continuing to treat her ongoing symptoms as though they are organically based is pointless.  It will lead to ongoing disappointment.  It is clear today that Miss Gartmann is psychologically distressed.  She states that she wants her problem fixed.  She wants to get back to her normal life.  As outlined previously, I do not believe that she sustained a subluxation or dislocation of her left shoulder in the episode.  I accept that there could have been a minor musculoligamentous strain to the cervical spine.  I do not believe that she has central sensitisation, complex regional pain syndrome type one (reflex sympathetic dystrophy) etc.  I accept that it will be stated that symptoms and signs can fluctuate.  I did not note any signs such as discolouration of the limbs, wasting of the hand musculature, sweating, changes in temperature etc.  In orthopaedics, one does see CRPS type one post injury.  The injuries may involve fractures or sprains.  One probably most commonly sees it in relation to fractures of the distal radius and injuries around the ankle joint.  Symptoms begin soon after the episode.  They relate to an excessive neurovascular response to injury via the autonomic nervous system.  A range of treatments can be given including various receptor blocks etc.  The condition improves with time.  Patients are not left with severe constant pain and major disability years after the episode.  I accept the theory of central sensitisation of pain and neuroplasticity of the nervous system.  I do not believe that Miss Gartmann has this condition.
From an orthopaedic point of view, I believe that Miss Gartmann needs to increase her activity and to undertake regular low impact exercise.  She does not require specific ongoing formal conservative treatment and in my view there is no indication to consider surgical intervention in her management.  I do not believe that she should take analgesic medication such as Norspan.  Previously she became dependent upon opiate analgesic medication on an iatrogenic basis.  I do not believe that treatment such as spinal cord stimulation is indicated in her management.”
Mr Dooley expressed the statement that the emotional distress which is giving rise to the ongoing pain in the areas complained of is “involuntary”, but he goes on to state:
“I believe that for symptoms to continue over a long period of time, voluntary input is needed.  In most cases in this sort of scenario, the patient loses most of their friends.  Often they become socially isolated.  There is a need however to remain disabled as the sick role, despite its negative effects upon the patient, does bring reward in various forms and allows the patient to socially justify why they may not be able to engage in a wide range of employment, domestic and leisure pursuits.  In my view, Ms Gartmann requires appropriate psychiatric treatment.  She does not require orthopaedic, neurosurgical or neurological treatment.”
Accordingly, I do find that the plaintiff has suffered pains which originate as a result of psychological factors, and that situation is related to the to the fall on 13 July 2012.  In this respect I reject the submission of the defendant that anything after the end of 2014 is “unrelated” or “not connected” with the fall on 13 July 2012;
(k)	I do find that from early 2015, the plaintiff had some capacity as demonstrated by her employment at the Werribee Racing Club from late spring of 2014 (no doubt following the detoxification) and Christmas 2014.  However, I also find that her “employability” from early 2015 until when she was actually employed by The Les Twentyman Foundation in 2019 was low.  The plaintiff gave evidence, and such evidence was corroborated by both her mother and father, that she applied for a large number of jobs – about 90 jobs over the following years, and was unsuccessful largely in part because of her WorkCover background and being off work for a long period of time.  
Indeed, this was made abundantly clear when her mother gave evidence that she had arranged that the plaintiff could possibly return and work at her mother’s place of employment at DHL Global Forwarding (the plaintiff had worked there once before, although did not particularly like the work).  However, all discussion seemingly came to an end when the potential employer became aware of her WorkCover background and time off work.  
It is to be noted that prior to her employment with The Les Twentyman Foundation, any work that she did do was on a voluntary basis and brought about by friends engaging in such activities – for example Ronald McDonald and further volunteering work involving some degree of mentoring of young people.
Of course, during this period of time, the plaintiff continued to attend her psychologist, was referred to the psychiatrist. Dr Datta, and had been diagnosed with Complex Regional Pain Syndrome Type 1 by Dr Peter Blombery in 2014, later confirmed on examination by Dr Clayton Thomas in 2020.  Such diagnosis prompted the prescription of Lyrica, which had some impact on the plaintiff’s condition.  The issue as to whether or not the plaintiff has suffered or continues to suffer Chronic Regional Pain Syndrome Type 1 divided doctors within the case.  Clearly enough, the diagnosis was made based on some of the criteria said to constitute such condition, whereas other doctors found no signs whatsoever to support such a diagnosis, and also suggested that circumstances of the plaintiff could give rise to coldness in an arm.  This is also to be judged, at least in part, by various observations made by others of the left arm being either colder than the right, or indeed showing some colouration.  It seems to be accepted also that such condition can “come and go”;
(l)	I do find on balance that it is likely that the plaintiff has suffered from crps1 at times in the past, although clearly there are many occasions when there is no evidence of that.  Furthermore, the signs suggesting such a condition only extended to coolness of the arm compared to the right arm, and discolouration on occasion, and certainly was not manifested in more significant signs such as excess hair growth and the like.  Although I believe that condition has played a role in the plaintiff’s presentation, I think a far greater role is her psychological response following her fall on 13 July 2012;
(m)	I do find the plaintiff is entitled to damages from 2014 over that period leading up to when she commenced employment with The Les Twentyman Foundation.  I do so on the basis that I do accept that the negligence of the defendant has impacted significantly on the employability of the plaintiff – by that I mean although she may have had some capacity over the years from 2015, she was not an attractive proposition to employers because of her past WorkCover history and the time off work;
(n)	I do also find that after the pain management course which initially was supposedly for six weeks but extended for three months, three days a week, during 2017, the condition of the plaintiff did improve.
During the time, the plaintiff also commenced and completed a Bachelor’s Degree that is her second qualification, consisting of a degree in Social Sciences involving behavioural studies.  Such degree was done largely online, and was completed in early 2020.
In particular, after the completion of the pain management course, the plaintiff continued to do various recommended activities, including going to the pool, having resistance bands, and indeed, received no ongoing physiotherapy, and treatment was essentially by way of her psychologist and psychiatrist;
(o)	I do find that in approximately 2016, the plaintiff obtained volunteer work at the Ronald McDonald House, where she worked on Friday afternoons from approximately 1.00pm to 5.00pm, and her duties consisted of a welcome desk person, and indeed, those duties were described by the witness, Mrs Heidi Collins.  Furthermore, from approximately 2017, the plaintiff obtained volunteer work with the Raise Foundation consisting of attendance for about two hours on a Thursday morning at Sunshine College where she mentored a thirteen-year-old girl and tried to help with her problems.  Furthermore, in or about 2017, the plaintiff did some work for a family friend through the Victorian Healthcare Lawyers once per month.
The plaintiff commenced doing voluntary work with The Les Twentyman Foundation in about April 2019.  Later that year, she commenced employment with the foundation working approximately fifteen hours per week, initially over two days, but after lockdown she could work at home and spread it over a number of days;
(p)	I do find that over the time that the plaintiff has been employed by The Les Twentyman Foundation, she has been capable of doing the type of work that is necessary, that she enjoys the work very much, she has a very understanding employer, and within reason has been able to take breaks in her work if necessary.
Evidence was given by Ms Stephanie Gebert, who was the supervisor of the plaintiff, that she commenced employment on 8 October 2019, working 15.2 hours per week on a Tuesday and Thursday.  She gave evidence that the plaintiff was able to write well, that is to say intelligently and coherently, within the broad strategy of the organisation, and that the foundation would have liked the plaintiff to work more hours “if she could manage it”.  The reason why the plaintiff was not employed full-time at the commencement of her employment was that the plaintiff said she could only do two days and could not work full-time.  It would appear that she was also at that stage continuing some of her other voluntary work;
(q)	I have formed the view that based on her improvement after the pain management course, her desire to work and, indeed, her ability to perform the type of work she was performing at The Les Twentyman Foundation, she would have been capable of increasing her hours to, say, 25 hours per week after performing that sort of work for a couple of years and becoming familiar with the work, understanding the flexibility which could be enjoyed, and her general improvement in her mental state, and being placed in a situation where she feels as though she is wanted and required in the organisation.  
To that end, I intend to find that from 30 June 2022, the plaintiff has been capable of doing 25 hours a week, whether it is spread over five days or indeed three days of eight hours or so.  It must be remembered that when the plaintiff was working for Werribee Racing Club, it would appear she was doing at least three days a week, given the amount of earnings for the period from late spring until Christmas.  
Furthermore, as I have pointed out earlier in this judgment, although I accept that there has been a psychologically driven pain syndrome, I also find that there has been a degree of conscious exaggeration bearing in mind my findings in relation to the lack of wasting in the left arm.  Such is consistent with the opinions of Dr Barton and Mr Dooley that although the advent of such condition is involuntary, as time goes on voluntary acts have to occur.  I take this also into account when I come to a view about her potential for more work;
(r)	I also consider that with the finalisation of her common law claim, there will be an improvement in her condition.  Dr Strauss thought that was the case, and indeed, Dr Datta urges the plaintiff to be as active as possible to improve her condition.  There can be no doubt that the plaintiff found this proceeding and the lead-up to it extremely stressful, which was exhibited many times during the course of her evidence.  Furthermore, the various stressors enunciated by her psychologist and to a certain degree by her treating psychiatrist will in time ameliorate and again I would expect improvement in her condition.  
It is to be stressed that, in my view, the condition is one largely based on a psychological reaction rather than an ongoing organic condition, and, accordingly, the more work that she can do at this stage with her present employer, the better for the future.  In this respect too, it is to be noted that in relation to her foot injury and stomach complaint which Dr Strauss gave as examples of how the plaintiff’s psychological makeup most probably has prolonged symptoms in those areas, such conditions have improved: that is, both her foot and stomach.  
Of course, no one can be certain of this, and I have made some allowance for what one may call a transition period into the future to allow the plaintiff to get back to full-time employment with her present employer, and hopefully in the future engage in work which is consistent particularly with her second degree involving digital content;
(s)	I also make final comment about matters I have taken into account in relation to pain and suffering damages.  As already indicated, I accept that the first three years or so following the plaintiff’s fall involved a host of different treatments, all of which made little impact on her ongoing complaints.  This led to what was a devastating experience for the plaintiff undergoing detoxification and the ketamine infusion.  Furthermore, she has continued to be treated by a psychologist and psychiatrist and various other doctors, leading up to the pain management course conducted by Dr Khan which, as I have found, gave rise to some real improvement in the condition.  I accept that she has had pain in the arm and certain restrictions in the arm, although not to the extent of what she has said, again given the lack of wasting in the left arm.  I also take account that the plaintiff made clear after her work experience with Channel Seven she saw herself as a future journalist, and indeed her first aborted tertiary course and the second course were all directed to pursuing that goal.  When she underwent the internship with the Herald Sun it was, I would expect, devastating for her when she found at that time she could not, for whatever reason, complete all the requirements necessary, causing her to be off work for two or three days during that internship.
However, it must also be borne in mind that throughout this period the plaintiff has been capable of pursuing and completing two tertiary courses, albeit on line, and albeit given some leeway because of her ongoing condition.  I further accept that her social life has been affected over the years, with the loss of friends, although she has continued to have loyal friends and has been engaged in some social activity, as demonstrated by the Facebook entries which were tendered on behalf of the defendant.
Furthermore, I take account of the expectation that she will improve after the finalisation of this matter, allowing her to pursue greater vocational activities if she so desires.
Damages
385	In their written submissions, both parties set out what they consider to be appropriate “pecuniary loss damages” and “pain and suffering damages” within the meaning of the Act.  Such submissions have been helpful in some respects.  Although there is some agreement as to certain net wage rates and certain amounts of income that the plaintiff has earnt since the incident, there is no agreement, nor, indeed, any direct evidence of what the plaintiff would have been earning, absent her injuries.
386	Authority directs that one must make the best that one can in coming to an assessment of damages and, to this end, I have had to form a view generally as to what the plaintiff would have been earning absent the injury suffered by her on 13 July 2012.  Furthermore, I have had to form a view as to what the plaintiff has earnt and has been capable of earning since the injury suffered by her on 13 July 2012.  Obviously enough, considerations as to her capacity for employment and employability since the date of injury turn on the Court’s findings as to the nature and extent of injuries suffered by her as a result of her fall on 13 July 2012.
Assessment of pecuniary loss damages
387	For convenience sake, I have divided the assessment of pecuniary loss damages into the following:
(a)	the loss of earnings from 14 July 2012 to date – which I have taken, for the purpose of convenience to be 30 June 2022, which is in close proximity to the handing down of this Judgment; and
(b)	any loss of earning capacity into the future.
388	It is again convenient to break up the loss of earnings claim to the following periods:
(a)	from 14 July 2012, the day after the incident, to 31 December 2014, which would approximate to the day on which the plaintiff would have completed her first degree (absent her injuries) and would have been looking for work consistent with her newfound tertiary qualification.  This period of time amounts to 129 weeks.  In this respect, it is to be noted that the plaintiff did not complete such a degree until well into 2015 and that was brought about by reducing her subject load over the course of the degree as a result of her claimed pain and concentration issues; and
(b)	from 1 January 2015 to 30 June 2022.  This period amounts to seven years and six months or, alternatively, approximately 390 weeks.
389	Both parties assumed, correctly in my view, that the plaintiff, absent injury, would have continued working with the defendant while she continued her studies leading to her degree.  Accordingly, working on the basis that she would have finished her degree in the normal course of events by December 2014, both parties agree she is entitled to loss of earnings running from 14 July 2012 to 31 December 2014.  
390	Whereas those acting for the plaintiff assessed this period to be 128 weeks at $300 per week, equalling $38,400, those acting for the defendant assessed such period to be 129 weeks, and that the figure for the net loss of wages and superannuation over that period amounts to $42,183.
391	I consider the defendant’s nominated figure to be more likely correct than the figure nominated by those acting for the plaintiff, which figure seemed to be based on an amount set out on the Accident Compensation Claim Form filled out by the plaintiff shortly after the incident – such Claim Form is probably speaking of a gross amount and would unlikely have included any amount for superannuation.
392	Accordingly, I do find that the loss of earnings for the period from 14 July 2012 to 31 December 2014 amount to $42,183.  That sum must be reduced by $5,588, being the net earnings of the plaintiff when working at the Werribee Racing Club.  Accordingly, $42,183 less $5,588 amounts to $36,595, being the net loss of earnings of the plaintiff for the period from 14 July 2012 to 31 December 2014.
393	Those acting for the defendant submit that the plaintiff is not entitled to any further loss of earnings, in part due to alleged credit issues and in part the alleged lack of connection between any ongoing alleged limitations after that date and any injuries suffered by her on 13 July 2012 (the date of the incident).  As I have already set out in my findings, I do not accept such submission.
394	I now turn to that period from 1 January 2015 until 30 June 2022.  Those acting for the defendant submit that a reasonable amount for the loss of earnings from January 2015 would be $1,000 net per week.  On reading their written submissions, it is unclear whether that sum was peculiar to just loss of earnings or also includes lost superannuation.
395	In any event, at first blush I did consider the sum of $1,000 net per week for a graduate journalist for example, may well be generous, but bearing in mind that those acting for the plaintiff have seemingly used that figure through to March 2021, it probably most fairly represents the net loss of earnings and superannuation over the period, taking into account positive contingencies involving, presumably, an increase in income and superannuation, and negative contingencies, such as whether the plaintiff would have started immediately in 2015, or whether there would have been some time before a job was obtained, whether there were breaks in between employments over the years and being off work, for argument sake, like the injury she suffered to her foot in later years.
396	If one allows $1,000 per week loss from 1 January 2015 to 30 June 2022, such period amounting to approximately 390 weeks gives rise to a net loss of $390,000.
397	Such sum must be reduced by the following:
(a)	The earnings from The Les Twentyman Foundation from her commencement of work with that organisation to 30 June 2020, amounts to $12,721;
(b)	Of course, this does not account for the period from 1 July 2020 to 30 June 2022.  For reasons which I advanced in discussing the various findings in this matter, I consider that this period, consisting of 104 weeks, was a period during which the plaintiff could exercise her capacity to a greater extent than fifteen-odd hours per week.  I consider that she was capable of doing twenty-five hours, or even more, during this period.  Working on the assumption that 15.2 hours generated $450 net (the agreed sum between the parties); a calculation of twenty-five hours per week gives rise to an amount of $740 net.  104 weeks at $740 net per week, amounts to $76,960.  
398	Accordingly, I consider the plaintiff earnt, or was capable of earning, over the period from 1 July 2020 to 30 June 2022, the sum of $76,960.
399	Accordingly, the plaintiff earnt, or was capable of earning, over the period from 1 January 2015 to 30 June 2022, the amount of $89,681, made up by the following earnings:
(a)	the sum of $12,721, being the net earnings at The Les Twentyman Foundation to 30 June 2020; and 
(b)	the sum of $76,960, being the net earnings over the period from 1 July 2020 to 30 June 2022.
400	The loss of earnings over the period from 1 January 2015 to 30 June 2022 is $390,000 less the amount of $89,681, being the amount that the plaintiff was earning or capable of earning, amounting to a final figure of $300,319, say $300,000.
401	Taking the net loss of earnings for the periods from 14 July 2012 to 31 December 2014 ($36,595) and from 1 January 2015 to 30 June 2022 ($300,000) amounts to $336,595.
402	I am unable to make what may be termed a “final order” in relation to pecuniary loss damages involving past loss of earnings.  It is clear that the plaintiff received weekly payments of compensation pursuant to the Act and although there is a reference in the plaintiff’s submissions to an amount of $2,000 for Fox v Wood damages, I seemingly do not have details of the gross amount of weekly payments which would have to be deducted from the loss of earnings and indeed, whether the sum of $2,000 is the agreed sum for Fox v Wood damages.
403	I would assume these matters are straightforward and I will leave it to the parties to adjust any order for loss of earnings, taking these matters into account.
Loss of earning capacity
404	I now turn to the issue of loss of earning capacity.
405	On the assumption that I have made that the plaintiff would have been capable of working twenty-five hours a week as at 30 June 2022, generating am amount of $740 net, such sum should be compared to what would the plaintiff be earning if she had remained uninjured.  Those acting for the plaintiff submit that the plaintiff would have had a “without injury” earning capacity in excess of $1,100 per week inclusive of superannuation.  I consider the sum of $1,100 is reasonable in all of the circumstances.
406	Accordingly, based on the plaintiff being able to work twenty-five hours a week as at 30 June 2022 earning $740 net per week, she is suffering a net loss of $360 per week, or $18,720 per year.
407	As I have already recorded, I consider the plaintiff will improve after the completion of proceedings and the amelioration of various stressors in her life.  Furthermore, I would anticipate that in the future she will be able to do full-time work with her present employer or indeed, alternative work in digital input jobs, consistent with her second degree.
408	Accordingly, I allow a further three years into the future, totalling $56,160 discounted to say $55,000 for present payment.  In addition, I will allow a further sum of $30,000 based on the principles enunciated in Victorian Stevedoring Pty Ltd v Farlow.
409	Accordingly, I allow a total sum of $85,000 for loss of earning capacity.
Pain and suffering damages
410	In their written submissions, both parties nominated what they respectively considered to be an appropriate amount for pain and suffering damages.  Whereas those acting for the defendant nominated a range of $100,000 to $125,000, those acting for the plaintiff nominated a figure “in the magnitude of $350,000”.
411	After a consideration of all of the evidence and taking account of the findings that I have made earlier in this Judgment, I consider that an appropriate amount for pain and suffering damages is $225,000.
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