Bommineni v TAC [2026] VCC 464

To be 'serious' the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as 'very considerable' and certainly more than 'significant' or 'marked'.[2]

2. As explained in the above extract from Humphries, a determination of the seriousness of any pecuniary disadvantage the plaintiff has suffered as a result of a transport accident, is to be assessed in combination with, and not separately from, any pain and suffering consequences.

1. The plaintiff relied on the following evidence:

(a) Affidavits of the Plaintiff sworn 3 October 2024 and 14 November 2025;[3]

(b) Affidavit of Teja Bommineni sworn 14 November 2025;[4]

(c) TAC Claim Form dated 1 October 2020;[5]

(d) Two reports of Dr Ikram Nizam dated 11 July 2023 and 3 February 2023;[6]

(e) Report of Dr Sanjay Saluja (MyHealth Fountain Gate) dated 10 March 2021;[7]

(f) Report of Dr Simran Bassi (MyHealth Dandenong) dated 16 February 2021;[8]

(g) Three reports of Mr Stephen Doig dated 4 August 2022, 17 July 2023 and 2 September 2025;[9]

(h) Two reports of Dr Brendan Hayman dated 9 November 2022 and 10 November 2025;[10]

(i) Taxation Summary.[11]

1. The defendant relied on the following evidence:

(a) Five reports of Mr Michael Dooley dated 24 August 2021, 3 May 2022, 20 March 2023, 11 May 2023 and 21 October 2025;[12]

(b) MyHealth Dandenong Progress Notes;[13]

(c) MyHealth Fountain Gate Progress Notes;[14]

(d) Plaintiff's post-accident payroll history;[15]

(e) Maxvale Physiotherapy referral dated 2 October 2019;[16]

(f) Maxvale Physiotherapy note dated 6 November 2019.[17]

1. I have read and had regard to the affidavit evidence, cross-examination and re-examination of the plaintiff, together with the affidavit evidence of the plaintiff's wife and the medical and other evidence relied on by the parties. In the reasons that follow, I have referred to such of the evidence that has proved necessary to explain the basis of the decision I have reached.

1. The plaintiff made two affidavits dated 3 October 2024 and 14 November 2025.
2. The plaintiff was born in 1986 in Southern India. He completed secondary schooling and undertook a Bachelor of Commerce degree. In London he completed a Masters' Degree in International Business. He worked in marketing in London for three and a half years. He returned to India to marry. He moved to Australia in 2017 on a Work Visa.
3. The plaintiff deposed that prior to the transport accident in August 2019, he was in good health. He experienced some back pain in 2017 when he bent over awkwardly at home to pick something up. He went to his local doctor and reported back and joint pain. He was told he had gout. He deposed to experiencing a bout of vertigo in 2018. However, prior to the transport accident the plaintiff was working and engaging in his domestic, social and recreational activities without any apparent restriction.
4. In the wake of the accident, the plaintiff went home with a friend rather than make use of the ambulance that attended because he said felt "relatively well at the time" and had work the following day.
5. In his first affidavit the plaintiff deposed that pain "began to come on in [his] right hip, lower back and right thigh". He said the pain commenced relatively mildly but became worse, but he was hopeful nothing was seriously wrong and that he would recover. He deposed that the pain fluctuated "during this time".
6. The plaintiff said he consulted his GP Dr Theti, about a month following the car accident. He said he also consulted with Dr Bassi and Dr Saluja who practised from the same clinic.
7. He had an x-ray on 27 September 2019 of his lumbar spine. He said he was told this did not show a fracture.
8. In October 2019 he was referred to Maxvale Physiotherapy.
9. On 27 November 2019 he had an MRI of his lower back. He was told that this showed a broad based disc bulge at L4/5 which was impinging on the thecal sac and transversing the L5 nerve roots.
10. On 15 December 2019, he consulted with Mr Rahim, Orthopaedic Surgeon. The plaintiff presented with pain on forced hip flexion that Mr Rahim thought may be coming from his back. Mr Rahim discussed injections but the plaintiff said he was unsure whether he was covered by his health insurance. Mr Rahim organised scans but the plaintiff returned to India in December 2019. In India he had a CT of his right hip and thigh and was told this showed lucency (i.e. decreased bone density) and sclerosis in the right femoral head.
11. On 17 December 2019, the plaintiff had an MRI scan of both his left and right hips. He was told he had AVN and severe osteoarthritis on the right side and lesser issues on the left side.
12. In January 2020, the plaintiff deposed to having undergone surgery in India. He said he understood this involved a right sided core decompression with a fibula bone graft. Some two or three weeks later, and while still in India, he had the same procedure performed on the left hip.
13. The plaintiff said he initially felt better after the surgery but his pain returned to what it had been. In his first affidavit he deposed that his pain was 5 to 10% better than prior to the surgeries in India.
14. The plaintiff returned to Australia in February 2020.
15. On 17 August 2021, the plaintiff consulted Dr Nizam, an orthopaedic surgeon, who organised MRI scans and x-rays. Dr Nizam told the plaintiff that he was suffering from osteoarthritis and AVN in the right hip. The plaintiff said he was told his left hip looked normal although there was also a possibility of AVN.
16. The plaintiff said he again consulted with Dr Nizam on 26 August 2021 who told him that he required a right hip replacement.
17. The TAC denied liability for the right hip condition and the plaintiff said that being unable to access Medicare, and because the cost of the surgery was $50,000, he did not proceed with it.
18. As to medication, the plaintiff deposed in his first affidavit, that he was taking two tablets each of Panadol and Nurofen every day for pain.
19. The plaintiff deposed that he was continuing to experience ongoing lower back pain. He was also continuing to experience ongoing pain in his right hip.
20. The plaintiff said he finds it hard to stand or walk for prolonged periods and he has a slight limp.
21. Addressing his own assessment of a work capacity the plaintiff said his injuries have reduced his work capacity. He said at the time of the transport accident he worked as a casual employee on full-time hours as a picker and packer for Graphic Packaging International. He was employed to a labour hire agency but said he could not cope with factory work and after he returned from India he was unable to return to this type of work.
22. The plaintiff deposed that he commenced as an Uber Eats delivery driver in April 2020 but experienced too much pain performing that work. He also drove for Uber X from time to time.
23. The plaintiff said he was subsisting on his wife's income.
24. The plaintiff said his injuries had restricted his capacity to perform daily activities and to enjoy life. He said his mobility continued to be restricted by his injuries. He was only able to walk for short distances due to both back and right hip pain whereas,[18] before the accident he greatly enjoyed walking and would often walk 5 to 10 kilometres at a time. By contrast he said he was limited to approximately 300 metres without causing aggravation to his back and right hip pain.[19]
25. The plaintiff deposed that he still drove because his wife did not. On occasions driving his family from here to there aggravated his back and as well as right hip pain.[20] Getting in and out of his car and sitting for prolonged periods also aggravated his pain.
26. He deposed that his enjoyment of family life was adversely affected. He could not play with his young daughter to the extent he wished.
27. The plaintiff deposed that his recreational life had been impacted by the injuries. Whereas he used to enjoy playing badminton and tennis he no longer does so.
28. The plaintiff complained that his sleep had been interrupted by his injuries with him often waking at night as a result of pain.[21]
29. The plaintiff said he could not undertake domestic chores that require being on his feet for a prolonged period of time. He said that putting on his socks and shoes triggered an aggravation of back pain.[22]
30. The plaintiff said that his social and religious life had been restricted to some degree by the accident related injuries. He continued to attend temple and to mix with the Indian community but at a lesser frequency. He said he found it difficult to attend temple or a restaurant without experiencing an aggravation of his back and right hip pain.[23]

1. In his second affidavit made 14 November 2025, the plaintiff updated his circumstances. He said he and his wife have a second child. The firstborn, a daughter, is 6 years of age, and they now have their second child who at the time of swearing his affidavit was 7 months old.
2. The plaintiff said he has not undertaken any further treatment since swearing his first affidavit. He says that he is on a skilled 485 Visa and his private insurance does not cover surgical procedures such as the total hip replacement recommended to him by Mr Nizam.
3. The plaintiff said he has not had further treatment at Maxvale Physiotherapy due to the associated cost.
4. The plaintiff says he has not consulted with his previous surgeons Mr Rahim or Mr Nizam because as he could not afford to pay for the surgery privately, he felt there was no point in seeing them.
5. The plaintiff says he cannot afford to pay for the surgery in India.
6. The plaintiff continues to take over the counter Panadol and Nurofen on a daily basis for pain.
7. The plaintiff deposed that he continues to experience the pain that he described in his first affidavit in both his lower back and his right hip.[24] He deposed that he still finds it difficult to stand or walk for prolonged periods and he reiterated the presence of a slight limp in his right leg.
8. Having noted in his first affidavit that his pain improved by about 5 to 10% following the surgery in India in early 2020, he says he now feels that the pain has become worse and this is despite no longer working on his feet as he was prior to the accident.
9. Addressing a work capacity, the plaintiff deposed that he continues to drive for Uber X but is unable to work long hours because sitting in the car and getting in and out of it in order to make deliveries aggravates his pain.[25] He says he continues to subsist on his wife's income.
10. The plaintiff says he continues to experience restricted capacity to perform daily activities and to enjoy his life. He says that his physical mobility is generally limited to walking around 300 metres without his pain in both his back and his right hip being aggravated.[26] The plaintiff deposed that his sleep continues to be disrupted. He deposed that he wakes due to the pain in his right hip and back "several times per night".[27]
11. The plaintiff deposed that his social and religious life continues to be restricted. He said he continues to attend a Hindu temple but less so than he would want to due to his pain and restrictions related to sitting, standing and walking.

1. Mrs Bommineni, the plaintiff's wife since 2014, made an affidavit in support of the plaintiff dated 14 November 2025.
2. Mrs Bommineni deposed that about a week after the accident, the plaintiff began to say that the pain was getting worse in his back and right hip.[28] He told her he thought it would go away and so there was no need to a see a doctor.
3. Mrs Bommineni deposed that based on what the plaintiff says and what she has observed, she can recognise that he is in pain. She deposed that whilst he was working after the accident, and particularly close to when he ceased working, he would come home and tell her that he was in extreme pain. She said that he often has a pained facial expression, especially after prolonged standing, walking, sitting, bending over or lifting anything. Mrs Bommineni deposed that the plaintiff has told her that his pain is gradually worsening, even though he also said he had some improvement after the surgery in India in 2020.
4. Mrs Bommineni deposed that the plaintiff's ability to work has been very restricted since the accident. He is now driving an UBER X on a limited number of hours and he is earning much less than his potential earning capacity.
5. Mrs Bommineni deposed that the plaintiff's enjoyment of recreational activities has been restricted. Prior to the accident, she deposed that he enjoyed playing badminton and tennis and was an active and fit man. Since the accident, she has not seen him run or play badminton or tennis.
6. Mrs Bommineni deposed that the plaintiff's physical mobility has also been restricted by his injuries. They used to enjoy taking long walks together which they no longer do.
7. Mrs Bommineni deposed that the plaintiff's injuries have also impacted his ability to drive for prolonged periods based on what he has told her and what she has observed of him. She deposed that she does not drive and it falls to him drive her and their children, but which he tells her, aggravates his pain. He says that he finds it difficult to get in and out of the car without aggravating his pain.
8. Mrs Bommineni deposed that the plaintiff's injuries have impacted his sleep and he often wakes at night time and this results in her frequently having her sleep disturbed.
9. Mrs Bommineni deposed that the plaintiff's domestic activities have been restricted by his injuries. Prior to the accident, she said that he performed a much larger share of the household chores and care of their children that he now does, and his inability to do so to the same extent, upsets him.

1. Mr Nizam, Orthopaedic Surgeon, provided two reports to the plaintiff's solicitors, the most recent of which is dated 11 July 2023, in which he wrote that in his opinion, the plaintiff's right hip condition (AVN) is related to the transport accident and that the plaintiff has "almost similar changes in both hips and was asymptomatic and had no previous hip condition before the accident".[29] Mr Nizam expressed his reasoning in these terms:

"He was asymptomatic before and to develop AVN, he should have had a traumatic event and the fact that the other hip has developed AVN leads me to believe that this is NOT a coincident and most likely the causal factor as he is not an alcoholic or taken long-term steroids".[30]

1. In his earlier report dated 3 February 2023, Mr Nizam wrote that he had seen the plaintiff on 26 August 2021 with his MRI scans which revealed significant right hip osteoarthritis stage 3+ and almost stage 2 to 3 progression of left hip AVN.
2. Mr Nizam said he told the plaintiff that the plan would be to try nonsurgical approaches but he warned him that in the near future he will certainly need a total hip replacement. He said the plaintiff's mobility was reduced and that he could not do much due to the reduced walking distance and activity levels.
3. Mr Nizam diagnosed bilateral AVN post-traumatic. He recommended a total hip replacement of the worst side, which he considered is most likely the right side, then followed by the left side. He wrote that the plaintiff's current prognosis is very poor, with no current capacity for any work but if he has both hip replacements performed in the near future, "he will be able to go back to normal duties however restricted activities as you will not be able to run".

1. Mr Doig is an orthopaedic surgeon who reported to the plaintiff's solicitors on 4 August 2022 following an impairment assessment. Mr Doig referred to the transport accident on 12 August 2019. He said the plaintiff told him that:

"He is not certain as to whether he had his right foot out straight or whether he had the knee flexed. He was able to get out of the car himself. He said at the time of the incident he felt reasonably good and didn't think that he had done himself too much damage. An ambulance arrived, but he did not go to hospital because he said he didn't feel as though he needed to. He went home, but unfortunately over the next 24 hours he said that he started to develop more and more right-sided hip pain, low back pain, and right lateral thigh pain. There was nothing particularly on the left-hand side. He said this became slowly and steadily worse. He didn't settle down and as a consequence of that he went to see his local doctor".[31]

2. Mr Doig said imaging followed and a MRI scan of his lumbar spine on 27 November 2019 was reported as showing a broad based disc bulge at L4/5 with central and bilateral paracentral protrusion moderately narrowing the central spinal canal and impinging on the thecal sac and the transversing L5 nerve roots.
3. Mr Doig said the plaintiff saw Mr Rahim, Orthopaedic and Spinal Surgeon initially, and again on 5 December 2019, but the plaintiff went back to India later that month and it was there that he had the investigations performed that had been anticipated by Mr Rahim. He had a CT scan done of the right hip which indicated there was some lucency and sclerosis in the right head of femur with the result that the plaintiff had an MRI scan of both joints performed on 17 December 2019 and these were reported as showing bilateral AVN of the femoral heads on the left side stage 1 to 2, and on the right side stage 2 to 3. As a consequence, the plaintiff had a core decompression performed on the right side with a fibula bone graft and about two or three weeks later he had a left femoral head drilling. Both of these were performed in India. According to Mr Doig they did not help, save that the plaintiff thought he was perhaps 5 to 10% better overall, although he didn't feel they improved him very much and he continued to have ongoing significant pain.
4. Back in Australia, the plaintiff was sent to see another orthopaedic surgeon who discussed hip replacements but because of the cost and his lack of insurance, the plaintiff told Mr Doig that he simply put up with the pain.
5. Addressing the plaintiff's presentation, Mr Doig said that the plaintiff has continued to experience significant ongoing low back pain that radiates right across the low back and is related to any activity. He said that the plaintiff is not having any treatment for his low back but he continues to have "significant ongoing problems in the low back".
6. As far as his hips are concerned, the plaintiff told Mr Doig that he continued to have significant ongoing bilateral hip pain.[32]
7. Mr Doig said it is difficult to know when the plaintiff first commenced to develop pain in the left hip but the right appeared to have come on immediately or within the first 24 hours following the accident.
8. Mr Doig's first examination of the plaintiff was conducted via zoom and he explained that his examination was limited to observation on the movement of the plaintiff's spine. On movement of the plaintiff's lumbar spine there was flexion to approximately 45°, extension to approximately 15°, lateral flexion of the right side to 30° and left side to 30° and rotation on the right to 30° and to the left 30°. Mr Doig said this was similar to Mr Dooley's findings. Mr Doig said it was not possible to examine the hips. He noted, however, Mr Dooley's assessment that the plaintiff was significantly restricted in his ranges of movement particularly on the right side and to a lesser degree on the left side.
9. Mr Doig wrote that the physical injury suffered by the plaintiff and attributable to the transport accident includes soft tissue injury to the lumbar spine and probable AVN of the right hip.
10. Mr Doig said the history suggested that the plaintiff had an onset of right-sided hip pain and low back pain within 24 hours of the transport accident but did not have the onset of left sided hip pain within 24 hours of the accident.
11. Mr Doig wrote that the plaintiff was initially investigated for his back but the plaintiff was quite "consistent in the fact that it was right hip and lateral thigh pain that was causing most of the trouble".[33]
12. Mr Doig wrote that it is difficult to understand why the plaintiff should have developed AVN affecting both hips, but he considered that the temporal relationship between the onset of the right hip pain and lateral thigh pain in the motor vehicle accident, given the plaintiff said he was completely normal beforehand, is "fairly compelling and in fact the right hip is related to the motor vehicle accident as is the lumbar spine".[34] Mr Doig said that he did not "see any evidence to explain why the left hip is related to the accident".[35]
13. Mr Doig said he understood Mr Dooley's opinion that the causes for AVN include a sub capital fracture. He said he considered that Mr Dooley's assessment was absolutely correct as far as this is concerned. Mr Doig went on to say that there are a number of other causes of AVN including deep sea diving, steroids and alcohol abuse, but none of these appeared relevant to the plaintiff.
14. Mr Doig wrote that he strongly suspected that the plaintiff did have the bilateral AVN prior to the motor vehicle accident but that he considered that it is most likely that the motor vehicle accident had caused the right side to become symptomatic. However, he said he saw no reason why the accident caused the left side to become subsequently symptomatic. Accordingly, in Mr Doig's view, the right side is related to the motor vehicle accident but not the left.
15. Mr Doig wrote that he considered it probably correct that the plaintiff will come to need a total hip replacement and would in the broad sense, therefore be compensable as related to the transport accident so far as a right side hip replacement is concerned.
16. Mr Doig wrote that the prognosis for the plaintiff is "fairly guarded".[36]
17. Mr Doig provided Slater and Gordon solicitors with an "Addendum Medico-Legal report" dated 17 July 2023. In it, he said he had been provided a report from the plaintiff's local doctor that reported an episode of low back pain in 2017, but in all other respects Mr Doig remained of the opinion expressed in his first report.
18. Mr Doig provided the plaintiff's solicitors with a reassessment report dated 2 September 2025. He wrote that the plaintiff had not been followed up by his local doctor or by his treating orthopaedic surgeons. The plaintiff said that that he remained in pain in the lateral thigh and the groin radiating down the right leg. He continued to limp and it continued to give him ongoing pain and in discomfort. It is hard for him to sleep at night. The plaintiff's left hip is similar to the right and the pain is in the same area but the right hip is much worse than the left hip overall. He continued to experience some ongoing low back pain which radiated right across the back but overall, "he feels it is a little worse than when he was last seen".[37]
19. Mr Doig again noted that there had been an episode of low back pain in 2017 documented in local doctors' notes but it was short term and the plaintiff said that that it settled over about 2 to 3 days. Apart from this, the plaintiff said he did not have troubles with his hips or significant problems with his back, before the motor vehicle accident.
20. As to work, Mr Doig said the plaintiff did not return to work in the factory as he had previously recorded and he had been doing some Uber driving but not for the previous five months because of a newborn baby for which he had been staying at home to look after together with his wife and their first born.
21. Examination of the right hip revealed that there was a 9 cm long well-healed lateral scar, consistent with the bone grafting there was a 15 cm long scar over the right mid shaft of fibular where the fibular craft has been taken from. He was Trendelenburg positive. He had flexion of 90° with no fixed flexion deformity, abduction 30°, adduction 15° ER to 20° and IR to 10°.
22. Examination of the thoracic lumbar spine revealed that the plaintiff had flexion to 50°, extension 15°, lateral flexion right to 35° to the left 30° and rotation on the right to 30° into the left 30°. There were no focal neurological signs in the plaintiff's lower limbs.
23. Mr Doig said his assessment of the plaintiff remained essentially unchanged. He continued to be uncertain as to when the problem with the left hip came on by comparison to the right hip, but according to Mr Doig, "it would appear that this was significantly later. This is why I do not consider that the left hip is related to the accident".[38] Accordingly, Mr Doig continued to diagnose a soft tissue injury to the lumbar spine and aggravation of pre-existing asymptomatic AVN of the right hip.
24. Mr Doig wrote that he considered the AVN aetiology is almost certainly idiopathic since the plaintiff had no risk factors leading to it. He considered that the AVN was present prior to the motor vehicle accident and it is not post traumatic in origin. However, he remained of the opinion that the AVN of the right hip was significantly aggravated and rendered symptomatic by the motor vehicle accident.
25. Mr Doig still considered that the plaintiff's prognosis is very guarded and he said he did not think it likely the plaintiff would improve with any conservative treatment, the appropriate treatment is a total hip replacement.

1. Dr Hayman, psychiatrist, provided two reports on examination of the plaintiff dated 9 November 2022 and 10 November 2025.[39]
2. In the first report, Dr Hayman recorded that the plaintiff had no prior psychiatric history. He accepted the accident history as involving a multi-vehicle rear-end collision. Dr Hayman noted that the plaintiff did not suffer a head injury or loss of consciousness and did not require immediate medical treatment, but subsequently developed significant physical injuries, particularly chronic right hip pain, bilateral hip pathology and lumbar spine pain, which led to repeated limitations on his capacity to work.
3. Psychiatrically, Dr Hayman observed that the plaintiff developed low-grade depressive and anxious symptoms in the context of chronic pain, functional limitation and loss of vocational capacity. He recorded disturbed sleep, rumination about finances and the future, reduced enjoyment of social and recreational activities, withdrawal from prior interests such as walking and sport, and a degree of heightened anxiety when driving, particularly when thinking about the accident. Dr Hayman found no evidence of psychosis, no suicidality, no cognitive impairment and no significant post-traumatic stress symptom cluster such as persistent flashbacks or avoidance behaviour.
4. Dr Hayman concluded that the plaintiff met diagnostic criteria for a Mild Adjustment Disorder with depressed and anxious mood, which he considered to be causally related to the motor vehicle accident, both directly (through mild post-traumatic anxiety) and indirectly (through the psychological impact of chronic pain and physical disability). He regarded the condition as having stabilised by the time of assessment. In terms of prognosis, Dr Hayman described the outlook as guarded but mild in severity, noting that the plaintiff had not engaged in psychological treatment and that cultural factors may have influenced this, while considering that supportive psychotherapy might be beneficial though psychotropic medication was not required at that time.
5. Dr Hayman's second report is dated 10 November 2025. He recorded that the plaintiff's physical condition had deteriorated functionally, particularly in relation to bilateral hip pain, severe restrictions on walking, standing and sitting, and the continuing inability to undergo recommended hip replacement surgery due to age, cost and visa related access to Medicare. He noted that the plaintiff had only been able to undertake sporadic, short-duration Uber and delivery driving work since late 2022, with significant restrictions on hours and earning capacity.
6. Psychiatrically, Dr Hayman found that the plaintiff continued to exhibit persistent low-grade depressive and anxious symptoms, largely unchanged in nature but now entrenched by the prolonged course of physical disability, vocational stagnation and financial stress. He noted ongoing dysphoric themes, frustration about loss of future plans and dreams, reduced participation in cultural and religious activities, irritability, embarrassment related to physical incapacity, and social withdrawal. Although the plaintiff reported occasional dreams about the accident, there remained no evidence of full post-traumatic stress disorder, no avoidance behaviour, no flashbacks, and no suicidal ideation. Cognitive function and reality testing remained intact.
7. Dr Hayman again diagnosed a Mild Adjustment Disorder with depressed and anxious mood, which he considered to be ongoing and causally linked to the original transport accident through its physical and vocational consequences. He reaffirmed that the condition had stabilised, though he emphasised that the plaintiff's psychiatric presentation remained closely tied to unresolved physical injury and pain. Dr Hayman reiterated that the psychiatric condition itself did not preclude all work, but that the combined effect of psychological symptoms and physical limitations significantly impacted lifestyle, social functioning and employability.

1. The defendant relied upon 5 medical reports of Mr Michael Dooley, Orthopaedic Surgeon together with various clinical records of the plaintiff.

1. Mr Dooley's first report to the defendant's solicitors is dated 24 August 2021. It included a history of the accident and of the plaintiff having stated that after the accident he noted some low back pain.
2. The plaintiff told Mr Doig that "after the accident he noted some low back pain". He also told Mr Doig that "day by day" after the accident he noted increasing pain in his right leg and thigh. He said his pain increased in time and he struggled to walk. Mr Dooley expanded on this chronology later in his report in which he said:

"Mr Bommineni described the circumstances of his motor vehicle accident to me. I may have misinterpreted this aspect of his history. In his claim form dated October 1, 2020.he describes that he was stationary in traffic with a car in front of him and a car behind him. A truck hit the car behind him, forcing the car into his vehicle and pushing his car into the vehicle in front. He described noting some low back pain after the accident and being taken home by a friend. Mr Bommineni stated that in time he noted increasing pain in his lower back, right thigh and right leg. He stated that in time he struggled to walk. He saw a doctor around six weeks after the accident. He was diagnosed with an injury to his back and it was thought that his leg pain may relate to varicose vein formation. Subsequent MRI examination of the lumbar spine reported evidence of degeneration at the L4/5 level with disc bulging and contact with the theca and traversing L5 nerve root. Based on all of the information available to me, I. believe it is most likely that in the motor vehicle accident Mr Bommineni sustained a soft tissue injury to his lumbar spine. It is most likely that this injury involved a musculoligamentous strain. It is possible that some aggravation of underlying degenerative change occurred. > > It is evident that in time Mr Bommineni presented with increasing pain in the region of his right thigh and leg and with difficulty walking and limping. No firm diagnosis was made at the time with Mr Bommineni electing to travel to India for investigation and treatment...".[40]

3. Mr Dooley said he was aware that the surgery in India on his right hip involved core decompression and the placement of fibular graft onto it and of the fact that three weeks later and also while in India the plaintiff underwent a core decompression procedure on his left hip.
4. Mr Dooley addressed the aetiology of AVN of the femoral head as a condition that refers to a situation where, for a variety of reasons, there is interruption or disruption of the blood supply to the head of the femur. He wrote that in orthopaedics, the most common situation in which this might occur is a displaced sub capital fracture of the neck of the femur or dislocation of the hip. He wrote that these injuries are known to potentially disrupt the retrograde blood supply to the femoral head via the capsule of the hip. He said that separate of these causes, AVN can occur in relation to a range of medical conditions and or be due to unknown causes in which group of patients it would most commonly occur in the 30 to 50 age group. He wrote that patients who become symptomatic present with the insidious onset of pain that may be felt in the groin, particularly the thigh. In time they may describe difficulty with walking and manoeuvring especially as structural changes develop in the femoral head. He described that medical conditions associated with AVN include the use of corticosteroid medication, the excessive use of alcohol, some chemotherapy drugs, radiation and embolic phenomenon such as nitrogen emboli in the bends. As well there may be a genetic predisposition to the condition.
5. Mr Dooley wrote that it was reasonable based on the plaintiff's ongoing symptoms for him to have been offered core decompression and bone graft to provide some structural support. Mr Dooley wrote that based on the plaintiff's "ongoing symptoms and based on his current clinical examination, he believes that he has gone on to develop (as one would expect) symptomatic osteoarthritis of his right hip joint".[41]
6. Mr Dooley wrote that the plaintiff has avascular change affecting both femoral heads and which in his view indicates that there is an underlying systemic reason for its development and that the plaintiff may well fall into the group of unknown causes.
7. Mr Dooley noted that because symptoms in relation to the pain in the plaintiff's right hip developed following the motor vehicle accident, the plaintiff and others will quite reasonably ask was the accident the cause of his AVN. He said he did not believe this to be the case. Mr Dooley said that in terms of describing trauma as a cause of AVN of the femoral head, it is evident that it requires significant trauma to disrupt the blood flow and that this occurs only via a sub capital fracture of the neck of the femur or a dislocation of the hip joint. He said he did not believe that the motor vehicle accident via the mechanism described could have led to AVN of the right hip and could not have led to a situation of bilateral AVN. Mr Dooley said that the changes noted on the CT scan/MRI scanning take many months to develop and in his view would have preceded the motor vehicle accident. However, Mr Dooley added that he understood that following a motor vehicle accident "there is a natural tendency to attribute symptoms that develop in time to the effects of the motor vehicle accident. I have learned in medicine never say never and never to say always".
8. In his second report dated 3 May 2022, Mr Dooley wrote that even "following resolution, from a healing point of view and in relation to aggravation of underlying degenerative disc change, patients can note ongoing residual impairment pain after so-called resolution of the injury". Mr Dooley did not expect the plaintiff's orthopaedic condition to deteriorate in time. He wrote that the plaintiff's "underlying degeneration at L4/5 of the spine will continue to evolve naturally with age, separate of any aggravation that may have occurred in the motor vehicle accident".
9. In his third report dated 20 March 2023, Mr Dooley said that his diagnosis and opinion remained as previously expressed.
10. Mr Dooley engaged with the fact that Mr Doig had expressed the opinion that bilateral AVN of the femoral heads was present prior to the motor vehicle accident but it was the motor vehicle accident that aggravated the underlying condition on the right side. He addressed Mr Doig's observation and finding that it is difficult to understand why the plaintiff should have developed AVN affecting both hips, but that he believed that the temporal relationship between the onset of right hip pain and lateral thigh pain following the motor vehicle accident made it compelling that the right hip issue was related to the motor vehicle accident and also that in his opinion the plaintiff sustained a soft tissue injury to his lumbar spine.
11. Mr Dooley also noted that Mr Nizam had said that it is most likely that the plaintiff has post-traumatic AVN which is most likely related to the motor vehicle accident.
12. Mr Dooley noted that Mr Doig found it difficult to understand how AVN of the femoral head could be associated with the mechanism of the plaintiff's motor vehicle accident and Mr Dooley said he considered that Mr Nizam offered no scientific explanation as to how AVN of the femoral heads developed following the motor vehicle accident.
13. Mr Dooley referred to his first report in which he had discussed the aetiology of the condition and he repeated that medicine is a discipline in which one should never say never and never say always. However, Mr Dooley added that if he was to be asked is it remotely possible that there is a connection, then the answer has to be "yes". However, he said he could not recall a case of bilateral AVN of the femoral heads presenting following the sort of motor vehicle accident described and that he remained firmly of the view that on the balance of probabilities one cannot make a connection. He said he remained of the opinion that the bilaterality of the condition meant that there was an underlying systemic rather than a traumatic cause for the condition. However, he said that if being asked is it possible that there was underlying AVN of the right femoral head that was aggravated in the motor vehicle accident, "then the answer is yes. Again, I do not believe that I would answer yes on the basis of probabilities".[42]
14. Mr Dooley said that even if he was to accept that there is a "possibility that underlying AVN of the right femoral head was aggravated by the motor vehicle accident, then he was of the view that any need for hip replacement surgery in time relates to the underlying AVN and its natural evolution but not to any aggravation that could possibly have occurred in the motor vehicle accident".[43]
15. In his report dated 11 May 2023, Mr Dooley said he had the opportunity to view radiology images of plain x-rays and MRI scans carried out on 24 August 2021 and that they showed evidence of the previous core decompression procedures that were carried out in India. He said there was evidence of osteoarthritis as he had previously noted affecting the superolateral aspect of the right femoral head with some probable early degenerative change. None of this, he said, caused him to alter his previously expressed opinion.
16. In his report dated 21 October 2025, Mr Dooley wrote that clinical examination of the plaintiff revealed moderate to significant restriction of active range of flexion and of extension of the lumbar spine that would be consistent with a soft tissue injury to the lumbar spine. He said that examination of the right hip revealed a reduced range of internal rotation when compared with examination four years ago. He wrote there was some irritability on examination in this regard. He wrote that clinical findings would be consistent with the evolving osteoarthritis of the hip joint. He said that ultimately treatment in the form of hip replacement may be required but such surgery is not currently indicated.
17. Mr Dooley wrote that prior to the accident the plaintiff was working as a factory or process worker. In his opinion the plaintiff would not be fit to return to such work both because of the soft tissue lumbar spine injury that he sustained in the motor vehicle accident and to his avascular crisis of the femoral heads. On the other hand, he believed that the plaintiff would have a physical capacity to work in a clerical or administrative position.
18. Mr Dooley said that in regard to the soft tissue lumbar spine injury, he recommended treatment by way of remaining active in general and to undertake regular low impact exercise. He said that the plaintiff's ability to walk and to engage in impact activity is "significantly restricted by the condition of his hips".[44] He wrote that the plaintiff's soft tissue injury to the lumbar spine would prevent him carrying out regular heavy physical work as would his hip problem but that from an orthopaedic point of view only the plaintiff has a physical capacity to carry out some light physical and clerical work.
19. Mr Dooley said he believed the plaintiff would continue to note some ongoing intermittent low back pain but he would not expect his orthopaedic condition to deteriorate in time.

1. The plaintiff accepted that he did not seek medical attention until approximately five to six weeks after the accident. He said he initially experienced mild back pain, which did not concern him sufficiently to seek treatment. He explained his delay on the basis that he expected the pain would resolve.
2. The plaintiff could not reliably recall when it was following the accident that he became aware of right hip pain as distinct from back or leg pain and he could not attest to right hip pain arising within 24 hours of the accident as Mr Doig reported the plaintiff relating to him.
3. The plaintiff's early clinical presentations are informed by the GP records to which he was taken by Mr Moulds. The plaintiff accepted the accuracy of GP notes that recorded his back pain improved with rest and worsened with standing at work, and that at times it had been reported he had "no back pain now". The plaintiff thought his emphasis to doctors on these occasions may not always have reflected what he felt was most troublesome at the time.
4. The plaintiff accepted physiotherapy notes that recorded that his low back pain was "normal" and thought to be work related and of him reporting "no more back pain" after changing duties.[45] He also accepted that, at times, his leg pain was more prominent than his back pain.
5. The plaintiff accepted that he continued full-time factory work after the accident until December 2019. He accepted that payroll records show he worked full-time hours, with overtime, until shortly before travelling to India in mid to late December 2019. He agreed the work involved him standing most of the shift as well as manual handling tasks.
6. The plaintiff accepted that Uber Eats work he subsequently performed aggravated symptoms because of repeated getting in and out of the car whereas the subsequent Uber X work was easier but that his capacity for working at it remained limited by pain.
7. The plaintiff said he had need to continue driving work in order to meet family obligations.
8. The plaintiff repeatedly accepted when asked by Mr Moulds that he suffers pain in both hips and that his left hip pain can be significant, although it is generally less severe than the right. He agreed with Mr Moulds that his left hip pain alone would prevent him engaging in activities such as badminton.
9. The plaintiff accepted his TAC claim form recorded "Injury of hip bilaterally" and he agreed telling multiple practitioners that both hips caused him significant pain and disability.
10. The plaintiff did not dispute as being accurate that he experienced periods where his back pain was described as "better" or "not too bad". He agreed his treatment has been either minimal or non-existent. He accepted that pain often fluctuated.[46]

1. Mr Doig explained that "probably the commonest cause [of AVN] is idiopathic".[47] He agreed with Mr Moulds who suggested that the typical age group is between 30 to 50,[48] and with the insidious onset being for groin/buttock/thigh pain.[49]
2. Mr Doig said that AVN tends to be progressive, but not inevitably symptomatic.[50]
3. Mr Doig said that he believes that the plaintiff had AVN at time of accident. He said, "I have no doubt that he had the AVN at the time of the accident... I don't think the accident caused the AVN".[51]
4. Mr Doig said that his opinion that the accident rendered right AVN symptomatic was based on the history of symptom onset within 24 hours,[52] and the differential timing compared with the onset of the left hip (months later),[53] along with his hypothesised mechanism that was engaged in the accident.[54]
5. Mr Doig agreed that there is no contemporaneous medical corroboration of the onset of right hip pain close to the accident and he agreed "that depends on his account to me".[55]
6. He accepted there was an absence of early hip complaints in medical records, and that GP notes dated 15 October 2019 records initially recorded low back pain; right leg/thigh pain and hip joints,[56] and that imaging was ordered of lumbar spine and not the hip.[57]
7. He agreed that no traumatic hip injury was identified and nor a fracture or dislocation (known causes of traumatic AVN).[58] He acknowledged an absence of any studies that correlate transport accidents as rendering idiopathic asymptomatic AVN symptomatic absent trauma,[59] but explained the problematic nature of eliciting such type of date to enable a meaningful study to be undertaken.
8. Mr Doig agreed that if symptoms arose weeks or months later, his opinion would change and said, "If it came on at six or seven weeks... my opinion is different".[60]
9. Mr Doig was clear that the left hip AVN was not caused by the accident because symptoms arose months later and was too remote to link to trauma.[61] He explained the onset of the left hip as the natural progression of idiopathic AVN.[62]
10. As to the inevitability of hip replacement, Mr Doig said it is probable but not inevitable.[63] He explained that many people with AVN may never become symptomatic but the plaintiff had so making the procedure more likely.
11. In re-examination, Mr Doig said that AVN grading he had regard to from the imaging taken in India was:
    • Right hip: Grade 2
    • Left hip: Grade 1.[64]

1. Mr Moulds submitted that the plaintiff failed to prove on the balance of probabilities that the transport accident rendered his pre-existing idiopathic AVN of the right hip symptomatic.
2. Mr Moulds further submitted that even if the accident did aggravate the right hip condition, the plaintiff had not proved that the extent of aggravation amounts to a serious injury within the meaning of the Act.
3. Mr Moulds made several concessions to narrow the issue. The defendant accepted that the plaintiff was asymptomatic in both hips prior to the accident.[65] The accident that occurred on 12 August 2019 involved a rear-end collision.[66] The AVN was pre-existing and idiopathic and the left hip AVN was not caused by or rendered symptomatic by the accident (this being the position shared by both the two primary orthopaedic experts).
4. Mr Moulds developed submissions of a temporal disconnection between the accident and right hip symptom. The following facts were emphasised:
   • No ambulance treatment was pursued.
   • No medical treatment was by the plaintiff sought for five to six weeks post-accident.[67]
   • When the plaintiff first attended a GP, the contemporaneous record described back pain radiating into the right leg, and not hip pain.[68]
   • The substance of the GP notes is of repeated references to back pain with radiation, not hip joint pathology as well as a referral for lumbar spine imaging. In addition, a physiotherapy referral was directed to the plaintiff's back.[69]
5. All of these considerations, Mr Moulds submitted, is inconsistent with acute right hip symptom onset within 24-48 hours of the accident.
6. Mr Moulds submitted that Mr Doig's causation opinion depends entirely on a history provided to him by the plaintiff but it is one not corroborated by clinical evidence.
7. Mr Moulds submitted that Mr Doig agreed that he could not identify any traumatic mechanism disrupting blood supply to the femoral head.[70]
8. In any event, and assuming causation had been established, Mr Moulds relied on the decision of the Court of Appeal in Seckold v Transport Accident Commission ("Seckold"),[71] in support of the submission that the mere triggering of symptoms of a degenerative or idiopathic condition is not enough and the Court must be able to assess the extent of acceleration and degree of lasting impairment. A comparison must be able to be made between the plaintiff's condition with the accident, and the condition without the accident (a Petkovski v Galetti,[72] type analysis).
9. Mr Moulds submitted that the evidence at its highest shows the onset of possible earlier symptoms, but not a very considerable impairment.[73] Mr Moulds submitted that whether the plaintiff would have required a hip replacement is relevant insofar as it illuminates pre-and post-accident impairment. However, Mr Moulds submitted there is no evidence identifying how much sooner the right hip symptoms arose because of the accident and whether future surgery has been brought forward by months or years. Mr Moulds pointed to a complete inability to assess what incremental impairment can be attributed to the accident alone. In substance, Mr Moulds submitted that there is no evidentiary foundation to conclude that the accident substantially altered the impairment trajectory.
10. Mr Moulds further submitted that even if impairments are established as caused by the transport accident, that the plaintiff fails on attribution that would enable them to be assessed in their own right as serious. Mr Moulds relied on the fact that the plaintiff suffers from:
    • Right hip AVN; and
    • Left hip AVN (non-compensable); and
    • Lumbar soft-tissue injury.
11. Mr Moulds submitted that these conditions produce predominantly indistinguishable functional consequences in his difficulty walking, working and in sleep disturbance and recreational and lifestyle limitations and the use of analgesia.[74]
12. Citing the decision of the Court of Appeal in Peak Engineering v Victorian WorkCover Authority & Anor ("Peak Engineering"),[75] Mr Moulds submitted that when compensable and non-compensable injuries produce overlapping consequences, the Court must be able to parse attribution. If consequences cannot be meaningfully separated, the plaintiff cannot meet the serious injury threshold.[76]
13. Mr Moulds submitted that the non-compensable condition (left hip AVN) and the compensable lumbar spine would independently have removed the plaintiff from work and recreation.[77]

1. Mr Hevey invited me to find the plaintiff a truthful and reliable witness.
2. Mr Hevey described the plaintiff as a highly educated migrant; with a strong work ethic. He was the sole financial provider for a young family. He continued in work despite pain and with a hope symptoms would resolve rather than repeatedly attend doctors.
3. Mr Hevey submitted that a layperson cannot be expected to draw a clinically accurate distinction between back pain, hip pain, and leg pain, particularly when experiencing such pain for the first time and complaints of right-sided pain radiating into the leg had been identified as functionally consistent with hip pathology.
4. Mr Hevey relied on paragraph 10 of the plaintiff's wife's affidavit, which recorded that about a week after the accident, "he began to say that the pain was getting worse in his back and right hip". Mr Hevey characterised this as evidence providing a temporal linkage and, although not within the 24 hours Dr Doig said the plaintiff advised him of on consultation, it should be regarded as sufficiently proximate to support Dr Doig's reasoning.
5. Mr Hevey maintained that Dr Doig's opinion represented a legally orthodox causal analysis, even if medically contestable.[78]
6. Mr Hevey submitted that the accident did not need to cause AVN, only render it symptomatic and causation could be inferred from timing, asymmetry between hips, and a lack of alternative triggers. Mr Hevey submitted that a precise reconstruction of trauma mechanics was unnecessary where a common-sense inference was available that the collision was forceful. Mr Hevey accepted that Dr Doig's opinion involved assumptions about the mechanics and position of the plaintiff's right foot and leg in the accident, but he submitted these were reasonable assumptions open to the Court on the evidence.
7. Mr Hevey did not dispute that AVN can be rendered symptomatic spontaneously, but on the facts of this application, the manifestation was best explained by trauma.[79]
8. Mr Hevey acknowledged that the emergence of the left-hip symptoms in December 2019/January 2020 harmed the application's reliance on right hip AVN. Mr Hevey accepted that the left hip was idiopathic and unrelated to the accident.
9. Addressing the lumbar spine injury, Mr Hevey relied heavily on Dr Dooley's October 2025 report, and his diagnosis of a transport-related soft-tissue lumbar injury; persistent restriction of movement and tenderness on examination years post-accident and that the lumbar injury prevents heavy physical work and impacts daily activities.
10. Mr Hevey submitted that taken alone, this injury by way of impairment to the function of the spine, satisfied the serious-injury threshold.
11. Mr Hevey did not dispute the correctness of the defendant's submission that overlapping impairments present attribution difficulties. Indeed, Mr Hevey largely accepted that consequences flowing from the back and the hips could not easily be disentangled. However, he urged the Court to avoid a mechanical application of Peak Engineering,[80] that would produce what he characterised as an unjust outcome in which a plaintiff injured in two places being worse off than one injured in a single place.

1. In order to appreciate the determination of the plaintiff's application it is important to understand both the competing medical opinions and the entirety of the evidence, and the application of that evidence to the principal legal authorities that inform the circumstances of the plaintiff's case.
2. Mr Doig accepted that AVN likely pre-existed the accident but it was asymptomatic and the accident made the right hip symptomatic but he did not associate the left hip with the accident. Mr Doig's formulation was expressed as follows:

"On the balance of probabilities the right hip condition has been rendered symptomatic by the motor vehicle accident and therefore it is related to the motor vehicle accident".[81]

3. The temporal relationship is also repeatedly described by Mr Doig as "fairly compelling"[82] for the right hip but absent for the left. There is a commonality of opinion of:
   • No steroid use;
   • No alcohol abuse;
   • No diving or haematological disease;
   • No previous hip pathology.
4. Mr Nizam said that the right hip condition is most likely post-traumatic or accident related. He emphasised the prior asymptomatic state, and the absence of alternative AVN risk factors, as well as the temporal onset after the collision.
5. Mr Dooley, however, rejected causation on the balance of probabilities and while accepting medical causation was theoretically possible, said it was unlikely; and he relied on pathophysiology,(i.e. the study of how diseases or injuries change the body's normal functions) saying that AVN results from vascular interruption and is unlikely to be caused by the relevant trauma.
6. I accept that there is credible evidence of the plaintiff suffering consequences that are right hip related, including:
   • Right groin pain and right lateral thigh pain
   • Reduced internal rotation of the right hip and irritability on movement
   • Antalgic right sided gait / limp
7. I can also safely accept that right hip pain is involved and engaged on:
   • standing,
   • walking distances beyond ~300 metres,
   • rising from sitting,
   • getting in and out of a vehicle
8. I accept that the orthopaedic consensus is that the right hip is the "worse side". To that extent, therefore, I accept that the plaintiff has identified pain and suffering consequences due to the right hip AVN. I accept that there is evidence that identified the right hip as the first and primary candidate for total hip replacement with the left hip described as less symptomatic, less advanced and secondary.
9. However, there are numerous overlapping symptom descriptions in the plaintiff's affidavits as well as in medical reports that describe his pain and the consequences of the same, in broad, composite or global terms, for example, "back and hip pain"; "both hips"; "groins, buttocks and thighs" and that these descriptions blur anatomical attribution, especially where lumbar spine pain can radiate into buttocks and thighs and where left hip pathology is acknowledged to exist despite a consensus of opinion that it in non-causal.
10. Both in his affidavits and under cross-examination, the plaintiff was frequently unable to separate his right hip pain from left hip discomfort, as well as from his lumbar spine pain, and when describing daily suffering and functional consequences they are mostly expressed globally such as an inability to work full-time, difficulty caring for or interacting at play with his children, sleep disturbance and loss of recreational activities which are described as flowing from "back and hip pain" collectively. This matters because the functional impairment of the lumbar spine is accident related but impairs a different body function and is independently causative of pain and suffering consequences and calls to be separately assessed, and the left hip AVN is not accident related but it has been symptomatic and consequential since about late 2019, and is also accompanied by pain and suffering and functional consequences.
11. Although the plaintiff does not need to show that all his pain and suffering is due to the right hip AVN, he must show that the right hip AVN, standing alone, gives rise to significant pain and suffering consequences.
12. Furthermore, and relevantly, in Seckold,[83] the Court of Appeal said:

"These submissions must be rejected. The judge's conclusion was correct. A consideration of the whole of the medical evidence (and particularly that of the treating orthopaedic surgeon, Mr Chehata) demonstrates that the applicant suffers from a progressive degenerative condition in his right wrist. Notwithstanding that he had no pain or symptoms prior to the accident, the condition existed prior to the accident and would, in the ordinary course, have progressed, with or without the occurrence of the accident.

So here, where the injury was an aggravation of a pre-existing condition, and where there had been very little by way of any symptoms requiring medical treatment for a significant period of time following the accident, it was incumbent upon the applicant to establish the difference between the progression which would likely have occurred had the accident not happened, and the progression which has in fact occurred as a result of the aggravation caused by the accident. Notwithstanding the need for the applicant to undertake this exercise, the applicant adduced no evidence which sought to deal with this issue. Specifically, there was no evidence as to the extent of the aggravation, or the likely duration of the effects of the aggravation. These were matters of evidence which the applicant was required to address as part of his case in endeavouring to establish that the consequences of the injury caused by the accident were serious.

In our view, there is little to distinguish the present case from the decision of the Appeal Division in Petkovski v Galletti. In that case, a submission had been made by the respondent to an application for leave to commence a common law proceeding under s 93(4)(d) of the Act that, in a case involving the existence of a pre-existing degenerative condition in an applicant's spine, a comparison had to be made of the condition of the applicant immediately before the accident with his condition thereafter, and an assessment made of the extent of the additional impairment; and, if that additional impairment was not 'serious', then leave to commence a common law proceeding must be refused. The Appeal Division held that the primary judge ought not to have rejected the respondent's submission. As the plurality put it:

One should commence with the acknowledgment that it has long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought. The Act does not affect that long-established principle.

Later, with reference to the underlying facts of Petkovski, the plurality said:

The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.

This statement of principle has been applied by this Court on numerous occasions both under the Act and the Workplace Injury Rehabilitation and Compensation Act 2013 (and its predecessor, the Accident Compensation Act 1985). It applies whether or not the pre-existing condition was symptomatic (as in Petkovski) or asymptomatic (as in the present case). It is the nature and extent of the impairment resulting from the injury sustained in the accident that must be identified by an applicant. Of course, the extent of any necessary analysis of such an impairment (particularly in the case of an asymptomatic pre-existing condition) will depend upon the whole of the evidence adduced in the case, including the medical evidence directed to the effects (if any) of the injury upon the underlying degenerative condition and any consequential impairment".

1. On the evidence, and in light of my analysis of the whole of the evidence, I am not satisfied that the plaintiff has been able to conform to the analysis called for by the Court of Appeal and identify that the accident has altered the trajectory of the previously idiopathic right hip AVN, and the claim must fail.
2. In light of my finding, the importance of the attribution of cause to transport accident for making the idiopathic asymptomatic condition of the right hip AVN symptomatic falls away. However, had it been necessary, on the balance of probabilities, and bearing in mind that the application is a gateway proceeding, nonetheless, I would not have been satisfied that the plaintiff established that the right hip AVN was rendered symptomatic by the transport accident.
3. I accept that within about 24 hours following the collision the plaintiff developed persistent right sided groin and lateral thigh pain, accompanied by restriction of movement and an antalgic gait on the right.
4. I do not accept that the plaintiff's subsequent attribution to the onset of right hip pain as occurring 24 hours after the accident that is to be found in the reporting of Mr Doig fills in the absence contemporaneous evidence concerning it. I think the plaintiff fairly recognised his inability to do so when he was asked about it under cross-exanimation. On the available evidence, there is a significant disconnect in regard to the right hip that then calls to apply the alternative reasoning that Mr Doig accepted when cross-examined, that delays of weeks would cause him to alter his opinion on attribution. I accept the plaintiff's wife said otherwise and she was not cross-examined. However, as against her evidence stands the absence of objective contemporaneous evidence of that timely connection that is now sought to be made in the plaintiff's favour, despite the absence of it in his own two affidavits. In any event, for the reasons I have given and the reasons that follow, the outcome of the application would not have been different.
5. I accept that the orthopaedic evidence identifies a marked reduction in right hip internal rotation, mechanical irritability of the right hip joint and progressive functional limitation, and with the right hip being identified as the more affected side.
6. The right hip condition contributes to the plaintiff experience of chronic pain on standing, walking more than short distances and rising from seated positions without aggravation of symptoms, along with difficulty with some domestic activities and caring for his children.
7. I accept the right hip pathology has contributed to the curtailment of his capacity to engage in recreational pursuits he previously enjoyed such as badminton and tennis. The right hip pain is on occasions a cause of disturbed sleep.
8. However, as far as an assessment of such pain and suffering and functional impairment and restriction and limitations is concerned, I have not been able to assess the consequences to the right hip condition alone as satisfying the statutory threshold, and the plaintiff has been unable to overcome the requirements identified in Peak Engineering.[84] Put this way, it is only if I took into account symptoms or disability referable to the right hip AVN and left hip AVN, the latter of which is agreed was not caused or aggravated by the transport accident, and/or I was to take into account the lumbar spine impairment, that was accident caused, but which constitutes a separate injury, that I could be satisfied of consequences overall that are serious but I am precluded from utilising that methodology. I cannot aggregate the evidence of disparate body functions that was redolent in this application and described as pain, restriction or functional limitation in composite terms such as back and hip pain, "both hips", or pain in the buttocks and thighs or right hip and back pain.
9. Even had I accepted causation, once my findings are limited to the pain and suffering consequences arising from the right hip AVN, and I exclude all other non-causally (i.e. subsequent left hip AVN), or separate accident impairment to bodily function (i.e. the soft tissue injury to the lumbar spine) then the application dependent on the right hip would have failed because alone it does not produce the requisite very considerable functional or pain and suffering effects.

1. In Mr Hevey's final address, although he did not abandon reliance on the right hip, he emphasised the separate injury to the lumbar spine.
2. The medical evidence consistently characterises the lumbar spine injury as a soft tissue injury, involving musculoligamentous strain, with possible aggravation of underlying degenerative change at L4/5, but with no fracture, no instability, and no persisting neurological deficit. All examining specialists who addressed the lumbar spine (including Mr Dooley and Mr Doig) describe it in those terms. Mr Doig classified the lumbar spine impairment at the low end of orthopaedic impairment.
3. As far as the lumbar spine is concerned, Mr Hevey sought to take assistance from the opinion of Mr Dooley. Mr Hevey stressed that the plaintiff did not pursue the cross-examination of Mr Dooley as had previously been granted as he was content to adopt his assessment made of the lumbar spine injury.
4. The plaintiff's clinical course for his lumbar spine injury, as revealed by both documents and cross-examination, is relevant. The plaintiff's initial symptoms were mild, with delayed presentation of about five to six weeks post-accident. Early GP and physiotherapy records record improvement with rest, and times when back pain was described as "better" or even "no back pain now". The plaintiff's functional capacity did not preclude full time work for several months after the accident. Furthermore, over time, his back pain became intermittent and fluctuating, rather than progressively deteriorating. That course is arguably more consistent with a minor or moderate soft tissue spinal injury as opposed to a serious long-term impairment of spinal function.
5. Mr Dooley, however, expressed the opinion that the lumbar spine injury prevents heavy physical work with a retained capacity for light or clerical work, but that the lumbar condition is not expected to deteriorate.
6. All relevant medical opinions indicate that the lumbar spine injury has substantially stabilised, and future symptoms are expected to be intermittent.
7. The plaintiff's does not see his GP for his back pain and his medication is over the counter.
8. Mr Hevey submitted that in light of the plaintiff's financial necessity to work, and his evident work ethic, that I should not punish his resilience in continuing to work after the accident, nor conflate it as constituting evidence that the back injury was minor. I agree with Mr Hevey that the plaintiff is not to be disadvantaged by his work ethic and his prioritising of the needs of his family by having continued to work after the accident or because he eschewed frequent attendances at his GP for hip or back pain. I also accept that the plaintiff did his best to give accurate and truthful evidence as reflected by his admitted uncertainty of the reliability of the timing of the onset of right hip pain that he gave Mr Doig.
9. However, more salient to the issue under consideration is the plaintiff's cross-examination and which has already been addressed, in which the plaintiff repeatedly attributed restrictions such as walking distances, standing tolerances, sleep disturbance, and inability to work to "back and hips" and he accepted that bilateral hip pain was significant and his left hip pain alone would prevent activities including his playing of badminton.
10. The plaintiff did not identify functional consequences that flowed solely from the lumbar spine, divorced from right hip pathology, and the non-compensable left hip pathology, that enables me to be satisfied that the consequences of the lumbar spine of itself satisfies the threshold of being at least very considerable or marked. Ultimately, I cannot be satisfied that the lumbar spine injury is a serious long-term impairment of a bodily function because critically, the consequences are not reliably capable of isolation from hip pathology when the same is assessed according to the requirements at law.

1. For the reasons expressed, the application for relief must be refused.

[1] [1992] VicRp 58; [1992] 2 VR 129.

[3] Exhibit P1, Plaintiff Court Book ("PCB") 4-15.

[12] Exhibit D1, Defendant Court Book ("DCB") 4-26.

[46] Transcript ("T") 26, Line ("L") 7-8; T30, L11-14; T35, L13-14.

[71] [2025] VSCA 18.

[72] [1994] VicRp 32; [1994] 1 VR 436.

[75] [2014] VSCA 67.

[78] I declined the plaintiff's proposed tender of photographs of the plaintiff's damaged vehicle because it added nothing to the inchoate issue of force velocity and trauma consistent with AVN.

[80] [2014] VSCA 67.

[83] [2025] VSCA 18 [54-58].

[84] [2014] VSCA 67.