1. At the trial of the proceeding, the applicant relied upon three affidavits sworn by him on 4 October 2022, 1 October 2023 and 22 November 2023. He also relied upon an affidavit sworn on 13 September 2023 by his younger brother, Amir Hashemi; an affidavit sworn on 13 September 2023 by a close friend, Mohammad Karimi; and an affidavit sworn on 14 September 2023 by his older sister, Touba Hashemi.
2. As is usual in cases of this kind,[8] the applicant was the only witness to give oral evidence at trial. His evidence-in-chief consisted of adopting his affidavits as being true and correct, subject to a small number of corrections.
3. The balance of the evidence tendered by the parties consisted of various documents. These included: medical reports; clinical and progress notes; MRIs of the applicant's spine, performed on 7 August 2018 and 17 January 2020; and documents relating to the applicant's qualifications and employment history.

1. The applicant was born in Iran in 1995. He was 21 at the time of the accident, and 28 at the time of trial. He lived in Iran until April 2012, when he moved to Australia with his parents and four siblings. He was 16 when he arrived in Australia.

1. In his first affidavit, the applicant deposed to relevant matters of background as follows:

(1) He was an outstanding student in Iran. Upon arrival in Australia, he enrolled at North Geelong Secondary College in Year 9 where he studied English as a second language.

(2) Between the ages of 16 and 18, the applicant was in a relationship with a girl who belonged to a different Islamic sect. Unrest between their families caused tension within the relationship. It 'created unrest and at times I behaved poorly'. In June 2014, a family violence application was made against the applicant. At that time, there had been 'numerous charges against me related to relationship failure, intervention order breaches and driving matters'. The applicant pleaded guilty to 'a few of those charges'. In August 2014, he was sentenced to an 18‑month community correction order with conditions that he perform 250 hours of community service as well as engage in a 'Men's Behaviour Change Program'. Prior to being sentenced, he was detained for 10 days, followed by 30 days in the Metropolitan Assessment Prison, for breaching conditions of his bail and a domestic violence restraining order.

(3) After being expelled from school, he enrolled in 'numerous TAFE courses, completed them all satisfactorily, and enrolled in a bachelor's degree course'.

(4) He had 'psychological troubles from time to time prior to the accident'. Moving to Australia, integrating into a new culture and his relationship problems caused the applicant 'some difficulties'. He 'experienced depressive moods as a result of loneliness, the language barrier, and cultural differences and lack of proper support after moving to Australia'.

(5) He consulted mental health experts in Geelong and received treatment from Barwon Health, Jigsaw Youth Mental Health Service ('Jigsaw') and Headspace Corio for short periods. At the beginning of 2012, he was prescribed antidepressant medication which he used for a few weeks. In 2014, he started using medication again.

(6) He was in car accidents in November 2013 and April 2014. None of the injuries suffered in those accidents caused him any long-term effects.

(7) In 2015, he commenced seeing a Persian-speaking psychiatrist, Dr Youn Khozouei. Dr Khozouei diagnosed him as suffering from a major depressive disorder and post-traumatic stress disorder symptoms.

(8) In 2016, he moved from Geelong to Hallam and commenced treatment at the Dandenong Superclinic. He underwent a brain scan due to headaches, 'but this condition resolved'.

(9) In 2015 and 2016, he continued to seek treatment from his psychiatrist. There was improvement. Levels of medication were reduced. By the end of 2016, the applicant was 'feeling well in myself'. In 2017, Dr Khozouei wrote a letter to help with the applicant's citizenship application, stating that the applicant had no ongoing issues relating to his criminal matters and relationship troubles of 2014.

(10) After his criminal matters resolved in 2014, he turned his life around and actively engaged in studies, sport, social networks and work. He successfully completed various TAFE and university courses and received an award for volunteering. Additionally, he had two part-time casual jobs: one with Adecco Recruitment, who placed him at various jobsites; and one at Afghan Bakery Restaurant in Dandenong.

(11) Prior to the accident, he was happy. He was working two jobs and active in his community with friends. He was in a relationship. He did modelling and 'TV/movie extra work as a hobby with friends'. His life was 'going well'.

1. As to the accident, the applicant said that it was 'a serious accident'. Another car rear‑ended his car and slammed him into a large cement truck trailer. He experienced severe whiplash as his head struck the headrest, jolting forward. He was 'in such a state of shock' that he could not get out of the car for a few minutes and had to be removed by the other driver. After feeling a little better, he got back into his car and went home. He said he began experiencing mild back pain associated with mild to severe neck pain/headache along with mental health problems. Flashbacks and nightmares commenced immediately, along with anxiety. He thought it would get better, but it didn't, so he sought medical treatment. His general practitioner referred him to a psychiatrist, Dr Geoffrey Hogan.
2. As to his pre-accident employment, the applicant said, 'I was forced to resign from both of my jobs due to both physical and mental complications resulting from [the accident]'. The applicant 'left those jobs immediately after [the accident]'.
3. Under the heading 'Psychological Injuries', the applicant said:

(1) Dr Hogan assessed his condition as a major depressive disorder and post-traumatic stress disorder and prescribed him 'numerous psychiatric medications'.

(2) He attempted to resume his studies. However, his ability to concentrate and retain information was impaired by the accident. He failed a number of units. He was eventually able to complete his studies, but it took longer than it should have. He performed poorly due to his mental injuries.

(3) He experienced feelings of hopelessness and inability to interact with his friends; he stopped going to the gym and socialising with them. He lost his friends and his ability to enjoy himself and interact with others. He began seeing a psychologist, Angelique Park, with whom he discussed suicidal thoughts.

(4) Since the accident, he had seen four different psychiatrists. Due to the severity of his condition, Dr Hogan referred him for a second opinion. He saw Dr Vijay Kumar. Dr Kumar's prescribed medications were 'the least effective, causing suicidal ideation'. He ceased seeing Dr Kumar and transferred to a Dr Maximilian, before subsequently transferring to Dr Ehsan Rahimikia.

(5) As at October 2022, he was seeing Dr Rahimikia once every two months; Ms Park once every two months; his general practitioner regularly; his pain specialist, Dr Ali Kian Mehr, every three months, and taking six different medications.

(6) His mental injuries had been severe since the accident. He had been taken to hospital due to anxiety issues. He had to live with his parents because of his mental health problems. He continued to get frequent nightmares involving the accident. He had become incontinent and wore a pad during the day due to the risk of urinating. His inability to control basic bodily functions caused him great embarrassment and frustration. He was still suffering 'blurry vision, dizziness, [he] get[s] shaky and anxious, sweating and dry mouth from the medication'.

(7) He had driven significantly less since the accident occurred. At times he had been suicidal. He rarely went out. He did not have a girlfriend. He had lost condition. He missed his friends. He used to take pride in his physical appearance, but now lacked the motivation to even wash himself. His quality of life had diminished greatly.

(8) In 2019, he tried to work at a restaurant as a waiter. He worked there for a few weeks but was terminated due to his lack of concentration and inability to perform physical work well enough.

1. Under the heading 'Physical Injuries', the applicant deposed as follows:

(1) After the accident, he developed 'pain of an aching, burning and stabbing quality in the inferior cervical region and upper thoracic region'. The pain 'would also extend down the axial spine bilaterally and affected the lower lumbar area'. His general practitioner, Dr Anita Nesarajah, prescribed analgesics for the applicant's neck and back pain.

(2) He began seeing a pain specialist for back and neck pain and a neurologist for headache management. He undertook physiotherapy. An MRI of his spine was performed on 7 August 2018. He has been on high doses of numerous different pain medications since the accident. His physical recovery has been affected by his mental health. He is in constant pain. He doubted whether his back injury would allow him to do any type of physical work.

1. In his second affidavit (sworn 12 months after his first affidavit), the applicant deposed as follows:

(1) He continued to experience ongoing back pain. The pain was aggravated when he was 'especially active, or through activities like extended walking and sitting'. Bending forward or squatting down could also increase the back pain. It was difficult for him to sit or stand in one position for an extended period of time.

(2) He continued to struggle with his mental disorder. He was frequently depressed and anxious, and always felt 'hopeless, helpless and broken'. The continued requirement to wear incontinence pads was very embarrassing.

(3) He continued to see both his psychiatrist and psychologist and to take high dosages of prescribed medication.

(4) His sleep was 'significantly impacted' by his injuries. He regularly had disturbing and vivid nightmares involving accidents.

(5) He continued to be very anxious and stressed when he attempted to drive a car. He tried to restrict driving to local areas. He drove 'very slowly and below the prescribed speed limit, which angers other drivers'. He experienced anxiety and flashbacks when travelling as a passenger. Overall, he avoided travelling in cars where possible.

(6) His 'social interactions have been continually impacted'. Before the accident, he would often go out to different functions. He rarely attended these anymore. He continued 'to experience no libido and lost interest to it (sic) entirely'.

(7) In March 2021, he became an Australian citizen. He had 'big dreams of all the things [he] could make of [his] life in Australia'. Since the accident, he has put on a significant amount of weight and has 'completely lost [his] modelling appearance to a level that is not comparable with [his] pre-accident [level]'.

(8) At the suggestion of his family, he went on two overseas trips: the first between November 2022 and March 2023 to Saudi Arabia, Iraq, Iran and Turkey; and the second in June 2023, to Iran. Both trips were a failure. He continued to experience severe anxiety and depression. He had to take excessive amounts of medication with him to manage his accident-related injuries. Sitting on planes for extended periods of time was very painful. While his family were out visiting tourist attractions, he spent a lot of time in their hotel managing his back pain and trying to reduce his 'ever-increasing anxiety'.

1. The applicant's third affidavit (sworn seven weeks after his second affidavit) was sworn following an adjournment of the trial granted in order to allow the applicant to file a further affidavit dealing with histories given by the applicant to a number of doctors which were said to be 'incomplete and misleading'.[9] In his third affidavit, the applicant exhibited a number of documents, including a police history check which detailed offending committed by the applicant between 2014 and 2015;[10] and two letters dated 13 April 2017, and 25 September 2020, written by Dr Khozouei. In Dr Khozouei's letter of 13 April 2017, Dr Khozouei said that the applicant's depression and post-traumatic stress symptoms (diagnosed in 2015) had 'resolved with psychotherapy and medications which [the applicant] is still taking'.
2. On the issue of histories given to medical practitioners, the applicant said:

I am now aware that some of the psychiatrists I have seen for preparation of reports in this matter were not aware of my past history of depression and post-traumatic stress symptoms. I held a genuine belief that I had recovered fully from the depression and post-traumatic stress symptoms, and realise that I should have mentioned this history in more detail. I described it in the first affidavit. I believed these doctors would have been aware of my past depression and post-traumatic stress symptoms.

In terms of my treating practitioners, the focus of my treatment has been following the motor vehicle accident the subject of this claim, and less so on my past history. I described my history previously to Dr Hayman[11] when I saw him in July 2021 because I was asked directly about it. I have also disclosed this history to other treaters such as Dr Hogan and Angelique Park. I refer to paragraph 16 of the first affidavit, and the car accidents in November 2013 and April 2014. I stated that neither of those injuries caused me any long-term effects, but I did experience depression following the motor vehicle accident in 2014, however believed this subsequently resolved after several months.

I remain embarrassed about the history of charges and intervention orders made against me because of my conduct against my ex-girlfriend, but was of the belief that at the time of [the accident] I was not suffering a psychological condition. I have not intentionally omitted this information from history given to doctors (sic), but may have minimised the information given due to my embarrassment about my actions.

...

In my consultations with doctors for the purposes of this case, they wanted to know about my current situation more so, and I didn't understand that they were asking about my past history other than when it was directly raised.

1. In his third affidavit, the applicant also referred to a trip he had taken to Nigeria in 2018 and a holiday he had taken in Iran in 2016.

1. The credit of the applicant and the reliability of his evidence were in issue at trial. As her Honour put it, the applicant's credit and reliability 'were the focus of the application'.[12] In cross-examination, the applicant was extensively challenged about histories he had given to medical practitioners and some of the matters he had asserted in his affidavits. At some points in the cross-examination, it was put to the applicant that what he had said in evidence 'was a lie' or 'a pack of lies'.
2. It is not necessary for present purposes (nor useful) to attempt to summarise the whole of the applicant's cross-examination. However, the following examples give the flavour of the cross-examination:

(1) The applicant was cross-examined extensively about different presentations to Dr Khozouei and Dr Hogan in consultations in August 2017 (the applicant having seen Dr Khozouei on 11 August 2017 and Dr Hogan on 23 August 2017). To Dr Khozouei, the applicant had presented as psychologically normal. Whereas, to Dr Hogan he gave a history of being depressed since 2014, with worsening symptoms. In cross-examination, the applicant explained his presentation to Dr Khozouei by saying that Dr Khozouei was 'not eager or interested to (scil, in) TAC matters' and 'he was only asking me about my citizenship status, my immigration matters, and the mental health issues that I had prior to all this, like from outside 2012 to the date (sic)'. A little later in the cross-examination, the applicant admitted that the history he gave to Dr Khozouei was 'because [he, the applicant] wanted him [Dr Khozouei] to stay on board with [him] with the immigration application'. He also said that, during his consultation with Dr Khozouei on 11 August 2017, he said nothing about the accident because his immigration problems at that time were his 'primary concern due to [his] fear of deportation'.

(2) By reference to medical records (including a letter written by Dr Hogan), the applicant's assertion in his first affidavit that Dr Hogan referred him for a second opinion was challenged on the basis that what, in fact, occurred was that Dr Hogan decided that he did not want to see the applicant anymore because the applicant had complained about Dr Hogan's refusal to issue backdated certificates of incapacity. The applicant did not contest that he had been involved in a dispute with Dr Hogan about Dr Hogan's refusal to provide requested medical certificates.

(3) The applicant's assertions in his affidavits that he successfully completed tertiary courses prior to the accident but subsequently performed poorly after the accident because of his injuries was challenged. By reference to academic transcripts, it was put to him that, to the contrary, he failed a number of subjects prior to the accident and was more successful after the accident, obtaining passes, credits and a distinction in 2018 and 2019. The applicant did not dispute the contents of the academic transcripts put to him in cross-examination.

(4) The applicant's assertion in his second affidavit that, since the accident, he has driven very slowly because of anxiety and stress caused by the accident was challenged by reference to documents which demonstrated that his licence had been suspended for speeding on a number of occasions after the accident.[13] In response, the applicant did not accept that all of the recorded infringements put to him related to his driving. He asserted that some related to the driving of his car by other members of his family.

(5) The applicant was extensively challenged about histories he had allegedly given to medical practitioners, including telling Dr Brendan Hayman (a consultant psychiatrist who, at the request of the respondent, examined the applicant in 2021 and 2023) that he had 'no significant prior psychiatric history'. The applicant accepted that he had given this history and said that he 'felt really embarrassed and ashamed of [his] past'.

1. The affidavit evidence of the applicant's younger brother (Amir Hashemi), older sister (Touba Hashemi), and close friend (Mohammad Karimi) was in the nature of 'before and after' evidence.

1. In his affidavit, Mr Hashemi said that before the accident the applicant 'was very helpful and motivated', 'a very kind-hearted person' and 'knowledgeable'. After the accident, Mr Hashemi noticed a significant change in the applicant's approach to others and in the applicant's wider social life. Mr Hashemi said that, following the accident, he has observed the applicant to suffer from 'depressed mood and other psychiatric symptoms'. He no longer makes an effort to maintain his appearance; and he sometimes speaks of having nightmares and flashbacks about the accident. Mr Hashemi said that he had seen the applicant 'taking many medications daily'; and noticed that the applicant 'experiences physical symptoms', often complaining that he is in pain in his back and neck, and cannot lift objects.

1. In her affidavit, Ms Hashemi (the applicant's older sister) deposed that, prior to the accident, she observed the applicant to be 'an active young person'. She never heard or observed him complaining of depression, anxiety, or any physical pain. Following the accident, she observed changes in the applicant's mood. He became depressed and anxious. More specifically, she deposed:

I have noticed a major difference in my brother's social life. His current functioning, both mentally and physically, is in no way comparable to his pre-accident life. He was a very social, energetic, joyful and athletic young man before the accident.

...

Before the accident, I never imagined that my joyful, athletic satisfied brother would become someone that is totally incomparable, unrecognisable to his pre‑accident happy life.

1. In his affidavit, Mr Karimi said that he had known the applicant since he arrived in Australia in 2013. Mr Karimi was aware that the applicant was involved in the accident, saying that since the accident he had noticed significant changes in the applicant's social life and mood. Mr Karimi said that, before the accident, he never observed any symptoms of depression or anxiety in the applicant. More specifically, Mr Karimi deposed:

He [the applicant] was very friendly, funny and well-liked. Particularly well‑liked among girls. He now appears unkempt and is frequently depressed. When I visit his place, I observed that he has put on weight, lost his hair, grown a beard, declined to self-care (sic). I also noticed his unclean room and his unpleasant clothes.

1. Between them, the parties tendered in excess of 50 reports and letters written by medical practitioners who had seen the applicant. The judge summarised this evidence in some detail in her reasons for judgment.[14] It is not necessary to set out all of that material in these reasons. Some of the material relates solely to the now abandoned claim under paragraph (c) of the definition of serious injury and is not relevant to any issue concerning the correct resolution of the applicant's claim under paragraph (a) of that definition.
2. For present purposes, the following summary of the medical evidence suffices. Notwithstanding that the applicant no longer relies on paragraph (c) of the definition, the summary below contains references to some of the psychiatric and psychological evidence as some of this evidence has potential relevance to issues of the applicant's credit and reliability, about which we will say more below.

1. MRIs were conducted on the applicant's spine on 7 August 2018 ('the 2018 MRI') and 17 January 2020 ('the 2020 MRI'). The 2018 MRI reported a small central disc protrusion at C6/7; a mild loss of intervertebral disc height at T11/12; and mild facet arthropathy at L3/4, L4/5 and L5/S1. Under the heading 'Impression' at the end of the report, the following was stated:

At T11/T12, a mild left paracentral/posterolateral disc extrusion mildly indents the left anterior aspect of the thoracic cord, potentially compressing the anterior rootlet of the left T12 nerve root.

Mild degenerative changes of the facet joints of the lower lumbar spine.

1. The 2020 MRI also examined the applicant's cervical, thoracic and lumbar spines. However, its conclusion was:

1. Dr Nesarajah was a general practitioner who saw the applicant at the Dandenong Superclinic. On 1 September 2016 (approximately nine months before the accident), she wrote a letter to the Department of Housing in which she said that she had been treating the applicant for depression and post-traumatic stress disorder; and the applicant was seeing a psychiatrist and counsellor. She said that he suffered from severe psoriasis, involving his joints, which made it difficult for him to walk up and down stairs.
2. In an undated medical report, headed 'TAC claim', Dr Nesarajah recorded that the applicant had been seen at the clinic on 14 August 2017 'after the claimed accident on 31 May 2017'. In the report, Dr Nesarajah provided a diagnosis of post-traumatic stress disorder and 'chronic myofascial pain - lower back, thoracic and neck'. Dr Nesarajah said that it was highly probable that these conditions were related to the accident.

1. Dr Fergin, was a dermatologist who sent a letter dated 7 July 2016 (approximately 11 months before the accident) to the Department of Housing, in which he said that the applicant had problems with psoriasis; the psoriasis was associated with significant arthritis; and that the applicant 'also has some reactive depression as a consequence of these health problems'.

1. On 10 October 2016 (approximately seven months before the accident), Dr Kan, a general practitioner at the Hallam Family Practice, wrote a letter certifying that, in his opinion, the applicant had 'been having academic difficulties relating to his history of depression for which he [was] taking medication and receiving therapy with a psychologist' and that this should be 'taken into consideration'.

1. Dr Tanveer was a general practitioner who saw the applicant at the First Point Medical Centre in Corio in 2014. In June 2014 (approximately three years before the accident), he wrote letters to Jigsaw and a social worker at Barwon Health in which he stated that the applicant was suffering from depression and anxiety due to psycho-social stressors, and was having issues with anger management. Dr Tanveer recorded the applicant as saying that he (the applicant) felt that this was affecting his learning capacity at school. Dr Tanveer also recorded that, during a consultation with a psychologist, the applicant expressed thoughts of self‑harm.
2. On 17 July 2014, Jigsaw reported to Dr Tanveer that the applicant had been seen by them. The letter recorded the applicant's statement that he had previously tried to hang himself but did not, at the time he was seen by Jigsaw, have any current suicidal ideation.

1. Dr Khozouei (whose letters dated 13 April 2017 and 25 September 2020 were exhibited to the applicant's third affidavit) also wrote letters to the applicant's general practitioners.
2. In a letter to Dr Ahmed Shukran, dated 24 April 2015, Dr Khozouei reported that he first saw the applicant on 24 April 2015. Dr Khozouei recorded that the applicant presented 'with sad and depressed mood, sudden outburst of anger which is expressed by breaking things, broken sleep, poor appetite with the loss of 18 kg, loss of concentration, motivation, interest and enjoyment with some feelings of helplessness and hopelessness'. Dr Khozouei recorded his diagnosis of 'major depression with some features of post-traumatic stress disorder'.
3. In a letter to Dr Nesarajah, dated 26 August 2017, Dr Khozouei reported that he last reviewed the applicant on 11 August 2017, before saying:

Seyed has been feeling and functioning well, but he has been very worried about his citizenship situation in recent time[s] and since the rejection of his application on the grounds of his convictions and imprisonment over relationship issue with a girl, and the fear of deportation, understandably, his mood has deteriorated with some feelings of helplessness and hopelessness, but no suicidal ideation. ...

Seyed is also worried about any financial ramifications of his non-citizenship status regarding his university education.

Understandably, the uncertainty about the future and being in a 'limbo' is very stressful, but these issues are based on the reality of his situation which cannot be addressed through medical/psychological means.

...

He remains on ... fluoxetine ... .

1. The progress note of a consultation on 22 February 2018 between the applicant and Dr Khozouei referred to the applicant as 'settled', 'relaxed', 'no hopelessness', and 'very positive and happy with his life'.
2. On 4 October 2018, Dr Khozouei wrote to Dr Martin Hill, saying that he had seen the applicant on that day and that the applicant 'comes for a psychiatric review every 6‑7 months'. Dr Khozouei went on to say that the applicant had been feeling and functioning well, and that he (the applicant) did not have any concern regarding his mental health. The applicant's 'main concern' was not being granted Australian citizenship. Dr Khozouei recorded that the applicant was continuing with his studies, and appeared relaxed and happy. His speech was coherent and logical, and there was no evidence of any thought or perceptual disorder. Dr Khozouei said that he had provided the applicant with counselling regarding 'some interpersonal and relationship issues between him and his father and his sister'.
3. In his letter dated 25 September 2020 (exhibited to the applicant's third affidavit), Dr Khozouei said that, as a result of his psychiatric treatment and psychotherapy, the applicant had become a more mature, reflective, balanced, law-abiding and responsible man. Dr Khozouei described the applicant at that time as being 'calm, gentle and considerate', saying that the applicant's depression and post-traumatic stress symptoms had been resolved with psychotherapy and medications. More specifically, Dr Khozouei said:

Seyed has remained emotionally and psychologically very well and he has not required further treatment since October 2017.

1. Dr French was a neurologist who examined the applicant on 22 March 2018 and 27 June 2018. She said that the applicant presented with chronic headache and back pain in the context of a motor vehicle accident on 31 May 2017. An MRI of the applicant's brain performed on 19 June 2018 did not demonstrate any structural cause for the applicant's headache.
2. Dr French diagnosed the applicant as suffering from 'persistent headache attributed to whiplash'. She also recorded the applicant as having been diagnosed with myofascial pain syndrome by a pain physician, Dr Sami Ahmad. She concluded that the applicant's overall prognosis would depend upon his response to chronic pain management strategies, saying that the applicant's condition appeared 'to have stabilised and he should make a reasonable clinical recovery with appropriate multidisciplinary management of his chronic pain'.

1. Dr Ahmad was a Pain Fellow who examined the applicant on 22 March 2018 and 1 June 2018. He diagnosed the applicant with 'whiplash associated disorder' and 'myofascial pain syndrome'. He thought the prognosis was guarded because the applicant had 'significant maladaptive coping behaviours and cognitions'. He said that the anticipated period of incapacity was 'indefinite and uncertain', and that he expected the applicant's chronic pain condition to 'continue into the foreseeable future'.

1. Dr Hill was a general practitioner who saw the applicant at the Dandenong Superclinic. In a report dated 4 August 2020, Dr Hill recorded that the applicant presented to the clinic on 14 August 2017 with a history of being involved in the accident. Dr Hill described the applicant as having 'ongoing underlying issues with anxiety and depression', for which he had been seeing a psychiatrist in Geelong (presumably Dr Khozouei), before saying that the applicant had been referred to a local psychiatrist, Dr Geoffrey Hogan.
2. Dr Hill noted that, in August 2017, the applicant 'requested a TAC certificate ... which was refused ... due to the need to significantly backdate'. Dr Hill said that the applicant was first seen by him on 11 February 2019 'with ongoing myofascial pain and tension headaches'.
3. In his most recent report (dated 2 April 2024), Dr Hill stated that the applicant 'has chronic upper and lower back myofascial pain and a chronic pain syndrome'. He said that the applicant required ongoing care with his pain management specialist team, and that the applicant's 'current incapacity lies in [a] combination of his physical and psychological condition related to his motor vehicle accident, and is likely to continue in the foreseeable future'.

1. Dr Mehr was a specialist in Rehabilitation Medicine and Neurophysiology who first saw the applicant on 4 July 2018 for an assessment of his chronic pain. Dr Mehr recorded the applicant's history of 'constant pins and needles and stabbing pain in the lower part of the cervical spine', upper thoracic spine and lumbar spine. The pain gradually moved from the cervical spine down to the whole of the spine and was aggravated by prolonged sitting or walking. The applicant rated his pain as eight out of 10 and said that 'it flared up with activities'.
2. Ultimately, Dr Mehr diagnosed the applicant as suffering from chronic cervical pain due to an aggravation of spinal spondylosis; chronic thoracic spine pain due to an aggravation of thoracic spondylosis; lumbar spine pain due to an aggravation of lumbar spondylosis; and chronic daily headache which appeared to be cervicogenic. Dr Mehr said that the prognosis for the applicant's chronic pain condition was poor due to the chronicity of the condition, lack of progress despite treatment and 'other perpetuating factors such as psychological status'.
3. In his most recent report (a report dated 11 January 2024), Dr Mehr again expressed the opinion that the applicant had developed a spinal injury in the form of aggravation of spinal spondylosis. He said that, while one usually expects this sort of pain to subside over time, sometimes it becomes chronic, as it had in the applicant's case. Dr Mehr expressed the opinion that, as a result of the applicant's chronic pain, which developed after the aggravation of his spinal spondylosis, he has now lost his physical capacity for any type of work.

1. Dr Sullivan was an Interventional Pain Specialist and Specialist Anaesthetist, who first saw the applicant (on referral from Dr French) on 29 October 2018. He subsequently saw the applicant on 18 November 2019, 18 February 2020, 10 August 2020, 13 November 2020 and 2 September 2021. The applicant was referred to Dr Sullivan 'for consideration of some interventional procedures including left-sided T12 transforaminal epidural injection and/or consideration for lumbar medial branch nerve blocks'. Dr Sullivan recorded the applicant's 'strong preference ... to avoid interventional procedures as he has a needle phobia'.
2. In his report dated 8 September 2020, Dr Sullivan noted the applicant's history that he continued to have 'intractable axial pain maximal in the thoracic region and lumbar region', and 'aggravations of his psychological well-being including symptoms consistent with major depressive disorder and generalised anxiety disorder following [the accident]'. Dr Sullivan again recommended diagnostic interventional procedures.
3. Dr Sullivan made the following diagnoses: 'aggravation of cervical spondylosis'; 'aggravation of thoracic spondylosis'; 'aggravation of lumbar spondylosis'; 'chronic axial pain associated with central sensitisation (central sensitisation is a wholly organic neurophysiological maladaptation resulting in amplification of pain and persistence of pain)'; chronic headache associated with the cervical spondylosis; and psychological disturbance, following the accident, including anxiety and depression. Dr Sullivan said that there was, in his opinion, a causal relationship between the accident and the applicant's then current clinical situation; and that the applicant was 'unlikely to significantly deteriorate or improve substantively in the foreseeable future'.
4. In a letter dated 13 November 2020 to Dr Hill, Dr Sullivan said that he had referred the applicant to Dr Ali Mehr for an opinion about the appropriateness of the applicant engaging in a pain management program run by Dr Mehr, but that Dr Mehr had advised him (Dr Sullivan) that the applicant was unlikely to benefit from that program.
5. In the most recent of the letters written by Dr Sullivan (a letter dated 2 September 2021, written to Dr Hill), Dr Sullivan said that there was no current or likely future need for interventions for the applicant and, as such, he did not need to continue seeing the applicant on a regular basis.

1. Dr Hunter was a chiropractor who first assessed the applicant on 27 July 2021. He expressed the opinion that the applicant was suffering from multilevel spondylitic changes and disc compressions at C5/6, T11/12, L3/4, L4/5 and L5/S1. He said the pain had become chronic and began after the accident. He said the applicant also had 'associated muscle spasms and active myofascial trigger points in [a number of muscles] bilaterally'.

1. Dr Thomas was a Consultant in Rehabilitation and Pain Medicine who examined the applicant on 6 October 2020 at the request of the respondent. After taking a history from the applicant, conducting an examination and reviewing relevant imaging (including the MRI of 17 January 2020), Dr Thomas concluded:

He [the applicant] does not have any structural abnormality relating to his spine. There is no evidence of any disc derangement at any level of his cervical, thoracic or lumbar spine. His presentation is more in keeping with myofascial pain syndrome.

...

He really does need to undergo a multidisciplinary pain management program.

...

His condition nonetheless could be considered stabilised from an impairment perspective.

His level of impairment in regards to evaluation of permanent impairment is 0. He does not have any structural impairment to his lumbar spine, his thoracic spine or his cervical spine. He has excellent range of movement and does not have any dysmetria.

1. Dr Hogan was a consultant psychiatrist who first saw the applicant on 23 August 2017. In a letter to the applicant's then general practitioner, Dr Claire Sheeran, about this consultation (which was 12 days after the 11 August 2017 consultation between the applicant and Dr Khozouei referred to in paragraph [38] above), Dr Hogan reported that the applicant presented with a major depressive disorder/post-traumatic stress disorder, having been involved in a motor vehicle accident in April 2014 and a later motor vehicle accident, being the accident the subject of this application. Dr Hogan recorded the applicant's symptoms at that time as including nightmares, 'social withdrawal', 'agoraphobic symptoms', 'impaired concentration', 'irritability', 'flashbacks', 'diminished libido', and 'constant depression of mood'.
2. In a subsequent report (dated 20 May 2018), Dr Hogan referred to consultations that occurred between October 2017 and April 2018, including a consultation on 13 February 2018 (nine days before the 22 February 2018 consultation between the applicant and Dr Khozouei referred to in paragraph [39] above), saying:

He [the applicant] described recent affective symptomology of initial insomnia of ... broken sleep ... nightmares ... tired throughout the day ... . At crowded places such as the shops he experienced panic symptoms, with fear, sweating and palpitations. He said that his concentration was impaired. He described quite clear flashbacks related to the original motor vehicle accident. ... He said he was constantly depressed in mood with evening worsening, crying each night, but not current suicidal thoughts, although there had been such two years ago.

1. On 23 June 2019, Dr Hogan wrote to Dr Sheeran, about the applicant's progress, noting that there had been 'a marked diminution in wellbeing' in the latter part of 2018, with 'no clear precipitating factor'. The letter went on to say that, given the applicant's dissatisfaction with Dr Hogan's refusal to provide 'TAC certificates' in respect of an earlier period in time, Dr Hogan recommended that he (the applicant) 'should be referred to another psychiatrist for ongoing care'.

1. Ms Park was a psychologist who provided monthly counselling to the applicant from April 2018. In a report written in June 2018, Ms Park recorded a history that the applicant failed eight units at university in 2017; in comparison to 'the distinction average he was attaining prior to the ... accident'.
2. In her fifth report, written in 2023, Ms Park records a history of the applicant's difficulty with his girlfriend when he was 18 years of age. Specifically, Ms Park records:

Mr Hashemi reported that her family was unhappy with their union, and they broke up in 2015. He stated that the relationship was conflictual and she was verbally abusive to him. Mr Hashemi reported that, as a result, he has not dated since then. He advised that his lawyer at the time told him not to tell me about [this], but reported he was unsure why.

I am not aware of any previous mental health issues or diagnoses prior to Mr Hashemi attending my office in 2018. I cannot therefore comment on any 'likely' psychological psychiatric injuries Mr Hashemi sustained. I was not made aware of any serious criminal matters, nor any other serious personal matters, other than immigrating to Australia as refugees, which Mr Hashemi stated was difficult.

Mr Hashemi reported that his psychological health was good prior to the motor vehicle accident in May 2017.

1. After describing the background of the proceeding,[15] summarising relevant legal principles,[16] identifying the issues before the Court,[17] and summarising the evidence and some of the submissions of the parties,[18] the judge commenced her reasoning with an analysis of the applicant's credit and reliability, saying:

In an application such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.

The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon his behaviour and performance on examination and on testing.

Credit is also important because the Court must be satisfied of the alleged consequences and their impact on the plaintiff's residual capacity.

Despite the significance of credit in applications of this type, the Court must nevertheless take into account the circumstances of the 2017 transport accident, cogent and reliable medical evidence, evidence as to the plaintiff's condition prior to and after the accident, and objective evidence, such as diagnostic testing.[19]

1. Favourably to the applicant, the judge made no adverse findings against him in relation to his criminal convictions,[20] or his apparent failure to declare income in one of his tax returns.[21] The judge also accepted that the applicant's 'less than perfect English language skills may have had an impact on how his evidence was delivered and whether he fully understood the questions being asked of him', and that the applicant's psychiatric condition 'might also have played a part in how his evidence was given'.[22]
2. The judge said that, taking into account the applicant's young age at the time his offences were committed, the context in which they were committed, and the very different culture in which the applicant was raised, and, where possible, giving the applicant 'the benefit of the doubt', she nevertheless formed an unfavourable impression of the his reliability.[23] The judge then identified six reasons for forming her unfavourable impression, which she said 'were directly related to the issues in the application'.[24] In summary, her Honour's reasons were:

(1) The applicant's presentation at consultations with Dr Khozouei in August 2017 and February 2018 as being well and happy with his life, while, at consultations with Dr Hogan during the same months, presenting with a history of crying every night, and suffering nightmares, flashbacks and panic symptoms. The judge found the applicant's explanation that he presented to Dr Khozouei as being well so that Dr Khozouei would be 'on board' with his citizenship issue was 'troubling'. As the judge put it, the inconsistency between the evidence of the two psychiatrists was difficult to accept and it disclosed an ability to manipulate a situation in accordance with his needs.[25]

(2) Telling Dr Kan in October 2016 that he was experiencing academic difficulties relating to his depression, but subsequently telling Ms Park that, during this period, he was achieving a distinction average.[26]

(3) Failing to disclose to Ms Park a full history of his criminal charges, the problems with his Australian citizenship, and the true position regarding his academic performance, while deposing to having done so in his third affidavit.[27]

(4) The applicant's second affidavit was misleading, in that it created an impression that Dr Hogan referred him on to another psychiatrist due to the severity of the applicant's condition. In fact, Dr Hogan recommended that the applicant should be transferred to another psychiatrist because of the applicant's dissatisfaction with Dr Hogan's refusal to provide TAC certificates in respect of an earlier point in time.[28]

(5) The applicant did not give accurate histories to doctors, or to the Court, about the impact of the accident on his academic performance.[29]

(6) The applicant's admissions in cross-examination that he committed at least some of the speeding offences committed after the accident directly contradicted his second affidavit which painted a picture of a slow, hesitant driver who now drives under the speed limit.[30]

1. The judge concluded her analysis about the applicant's reliability by saying:

During the course of his evidence, I was able to observe Mr Hashemi in the witness box and to compare his answers to the contemporaneous material. I formed the impression that Mr Hashemi was an unimpressive witness. He initially maintained his position, as set out in his affidavit, or as put to him from the various histories. He made concessions only when faced with evidence to the contrary.

I find much of his evidence about the 2017 transport accident and its impact on him, his studies, his treatment, and his ability to drive, unreliable. The inconsistency in his presentation to Dr Khozouei and Dr Hogan was troubling and his explanation for it also underscores his unreliability.

I take into account Mr Hashemi's psychiatric diagnosis and treatment with a range of psychoactive medications. These matters can all have an impact on his perception of events, or his ability to recall them to doctors, or in court.

I make no findings that he was deliberately lying, but due to the combination of stressful events in his life and his condition and treatment, I am unable to rely on anything he said, either in court or to doctors, unless it is supported by objective evidence, or cogent medical opinion based on such evidence.[31]

1. The judge then turned to the question of whether the applicant suffered an ongoing physical injury to his spine or any organic chronic pain condition caused by the accident. In the course of a detailed analysis of that question, her Honour made the following observations and conclusions:

(1) The applicant drove himself home from the scene of the accident. He did not attend upon a medical practitioner in respect of accident-related injuries for over 10 weeks after the accident. In the intervening period, on 7 July 2017, he attended his general practitioner for an unrelated medical condition, making no complaints about any accident-related matters.[32]

(2) Clinical examination by Dr Nesarajah in August 2017 was 'unremarkable'. X‑rays of the neck and thoracic spine and a CT scan of the lumbosacral spine taken at that time were all reported as normal.[33] Despite these findings, the applicant continued to complain to Dr Hill, who accepted the veracity of those complaints, and referred the applicant to pain specialists for treatment.[34]

(3) Dr Ahmad noted a history of constant stabbing pain and pins and needles. He recorded that the applicant was scared of needles and had had no treatment other than medications. On examination, the lumbar spine showed a normal range of movement and the cervical spine had a minimally-reduced range of movement. Provocative tests were all normal. Based on an acceptance of the veracity of the applicant's complaints of pain, Dr Ahmad diagnosed myofascial back pain and whiplash.[35]

(4) Dr Sullivan accepted the applicant's complaints of pain as genuine and diagnosed an organic pain sensitisation condition. While Dr Sullivan noted that the 2020 MRI 'showed no significant structural change or neural impingement', the MRI actually showed no abnormality. There was no discussion by Dr Sullivan addressing the inconsistent findings between the 2018 MRI and the 2020 MRI. Dr Sullivan recommended various diagnostic blocks and injections, which the applicant never undertook. The reason for this appeared to be 'needle phobia'.[36]

(5) The applicant's alleged needle phobia was not specifically explored in evidence. However, there were medical reports in evidence which confirmed the applicant had undergone Energix-B injections in 2014, as well as evidence that the applicant had undergone three-weekly injections of Taltz, a medication for psoriasis. No explanation was provided for the apparent inconsistency in the evidence tendered by the applicant between his past choice to have injections and the refusal to undergo recommended treatment for his accident-related pains because of 'needle phobia'.[37]

(6) Dr Mehr received a history of pain initially starting in the neck and moving down the whole spine, with pins and needles. Neurological examination was normal and the range of motion in the spine was normal. The 2020 MRI demonstrated no abnormality. Dr Mehr accepted the applicant's complaints as genuine and diagnosed a chronic pain syndrome affecting the spine.[38]

(7) Dr Thomas noted the applicant to have excellent general mobility with a full range of movement of the entire spine. No abnormality was detected by the 2020 MRI. Dr Thomas diagnosed a myofascial pain syndrome relying on the veracity of the applicant's complaints of pain.[39]

(8) There was no explanation for the applicant's failure to undergo the diagnostic blocks suggested by Dr Sullivan. The consequence of that failure was that there was 'no objective evidence of any diagnosable organic spinal injury or condition attributable to [the accident].'[40]

(9) The 2018 MRI did not have any role to play in the Court's assessment of the applicant's current physical condition. That investigation was superseded by the 2020 MRI, which all doctors agreed showed no abnormality. Dr Sullivan did not properly consider these reports. While he mentioned them, he provided no basis upon which the Court could prefer the results of the 2018 MRI to those of the 2020 MRI.[41]

(10) There was no available medical explanation for the applicant's alleged inability to control his bladder and his need to wear an incontinence pad, nor anything to connect those matters to the accident.[42]

(11) The various diagnoses of chronic pain syndrome, myofascial pain syndrome and central sensitisation were all founded on an acceptance of the veracity of the applicant's pain complaints. There was 'no objective evidence such as diagnostic blocks or imaging to support the existence of a physical pain condition'.[43]

1. The judge concluded her analysis of that part of the applicant's application which relied on paragraph (a) of the definition of 'serious injury', by saying:

For the reasons I have already set out, I do not accept, as reliable, the histories of pain and physical restriction provided by Mr Hashemi to the various doctors.

Mr Hashemi has not discharged his onus of establishing, on the balance of probabilities, that he suffered any ongoing physical injury or physical chronic pain condition as a result of the 2017 transport accident.

Consequent on this finding, is also a finding that Mr Hashemi has not established he suffers any pecuniary disadvantage on account of any physical injury.[44]

1. The balance of the Reasons consists of her Honour's analysis of that part of the applicant's application which relied upon paragraph (c) of the definition of 'serious injury'. As the applicant no longer seeks to pursue that part of the claim, it is not necessary to summarise the judge's reasoning on this issue.

Proposed ground 1: the test under paragraph (a) of the definition

1. Under proposed ground 1, the applicant submitted that the judge incorrectly applied the test for determining whether an injury was a serious injury within the meaning of paragraph (a) of the definition of serious injury in s 93(17) of the Act.
2. The applicant contended that the evidence of Dr Sullivan, and in particular his evidence about the 2018 MRI, was of significance to his case, 'as it provided the basis of the organic injury which Dr Sullivan diagnosed [as being] the ongoing chronic pain suffered by the applicant'. Relying upon Meadows,[45] the applicant submitted that the judge was required to 'evaluate the evidence and determine whether there was a substantial organic basis for the pain and suffering consequences relied upon'. He then submitted that, if a substantial organic basis existed, and the pain and suffering consequences 'satisfied the [very considerable] test' (being the test requiring an applicant to show that the proven consequences of a transport accident can 'be fairly described as at least "very considerable" and certainly more than "significant" or "marked"'), then that was sufficient to satisfy the test in paragraph (a) of the definition of serious injury.
3. The applicant contended that the judge erred when she required the applicant to prove that he suffered an ongoing physical injury or a physical chronic pain condition. It was also submitted that the judge erred in failing to make 'the relevant inquiry': namely, 'whether there was an organic basis for the pain and suffering consequences'. More specifically, it was contended that the judge 'did not consider the evidence [in order] to find whether the applicant proved that the accident caused an organic injury from which he suffered ongoing chronic pain which was serious'.

1. There is no substance in proposed ground 1. The test to be applied in determining whether an injury resulting from a transport accident is a serious injury under paragraph (a) of the definition of serious injury in s 93(17) of the Act is that set out by the majority in Humphries v Poljak.[46] Specifically, the majority said:

[W]e think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s (4)(d) when reliance is to be placed on sub-s (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think 'long-term' is not an expression likely to give rise to difficulty. 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 consequences, 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'? Beyond such guidance, it is, we think, not possible to go.[47]

1. In Richards v Wylie,[48] Winneke P, with reference to the judgment of the majority in Humphries v Poljak, accepted that s 93(17) of the Act 'intend[ed] to maintain a division between injuries with physical consequences and those with mental consequences'.[49] His Honour then said:

The inquiry which the judge must make under para (a) focuses his attention first upon whether the injury has produced an organic impairment (or loss) of a body function and then, by reference to the consequences of that impairment, to determine whether it is "serious" and "long-term": see Humphries v Poljak at 138 and 140, per Crockett and Southwell JJ. The "division" to which their Honours referred emphasises, and was intended to emphasise, the nature of the inquiry which a judge is called upon to make under para (a) and to caution judges against succumbing to the temptation of equating "impairment of body function" with "injury".[50]

1. A little later in his judgment, his Honour said:

Thus, the "serious injury" defined by para (a) of subs (17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.[51]

1. The applicant's reliance upon Meadows is misplaced. Meadows was a case involving a different statutory regime: namely, the regime that was then in force under s 134AB of the Accident Compensation Act 1985 ('the AC Act') as it applied to injuries suffered by workers in the course of their employment. Under that statutory scheme, s 134AB(38)(h) of the AC Act relevantly provided, in respect of a relevantly identical definition of 'serious injury' to that contained in the Act, that:

For the purposes of the assessment of serious injury in accordance with subsections (16) and (19) -

...

(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.

1. The effect of that provision[52] has been held by this Court, in some circumstances (depending on the state of the medical evidence), to require a worker who suffers an injury that has both physical and psychological components to disentangle those components when making a claim based on paragraph (a) of the definition of serious injury.[53] It was in that context that the Court in Meadows referred to the exercise of disentangling as the second step of a two-step process as follows:

The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative - and, of course, if the pain and suffering consequences satisfy the statutory criterion - then the applicant will succeed without the need for any 'disentangling' of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not - or cannot be - answered affirmatively, then the applicant will need to take the next step and 'disentangle'. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.[54]

1. What was said in Meadows about disentangling has limited relevance in relation to a claim under s 93 of the Act, where there is no statutory equivalent of s 134AB(38)(h) of the AC Act. In a claim under s 93 of the Act, the existence of a psychiatric or psychological component of an injury in respect of a transport accident is to be treated in the way described by this Court in Humphries v Poljak and Richards v Wylie. Moreover, the two-step process described in Meadows does not involve any relaxation of the requirement identified in Humphries v Poljak for an applicant relying on paragraph (a) of the definition of serious injury to establish that the claimed impairment or loss of a body function is the result of the infliction of a physical injury.
2. It follows that, in the present case, there was no error in the judge applying the test for serious injury as required by paragraph (a) of the definition of that expression in the Act in the way that her Honour applied it; nor any error in her Honour's conclusion that a failure to discharge the onus of establishing that he (the applicant) suffered any ongoing physical injury or physical chronic pain condition as a result of the accident was fatal to his claim under paragraph (a) of the definition. Her Honour's approach was, with respect, entirely in conformity with the approach required by Humpries v Poljak and Richards v Wylie.
3. Accordingly, for the reasons given above, proposed ground 1 must be rejected.

Proposed grounds 2 and 3: the applicant's lack of reliability and the evidence

Proposed grounds 2 and 3: applicant's submissions

1. Proposed grounds 2 and 3 make complaint about the judge's treatment of the evidence and her Honour's reasons for rejecting the applicant's claim based on paragraph (a) of the definition of serious injury. In support of these proposed grounds of appeal, the applicant relied upon the expert evidence of Dr Nesarajah, Dr French, Dr Ahmad, Dr Hill, Dr Sullivan, Dr Thomas, Dr Mehr and Dr Hunter, as well as the evidence of the applicant and his brother and sister. Additionally, the applicant submitted that his 'entire evidence with respect to his pain and physical injuries' was not challenged.
2. While the applicant did not cavil with the instances upon which the judge concluded that his evidence was unreliable, he contended that, when evaluating the evidence of a witness whose evidence is challenged for reliability, 'the evidence should be broken down into its component parts'. He then contended that if one element of a witness's evidence was found to be incorrect, this did not necessarily mean that the rest of that witness's evidence was unreliable. It was then submitted that the judge had not examined all of the evidence but had 'found a way to shortcut matters' by effectively dismissing the applicant's application on the basis of his lack of reliability, without engaging with and analysing the whole of the evidence as was required in the circumstances of this case.
3. In support of proposed grounds 2 and 3, the applicant also submitted:

(1) 'The weight of medical evidence, including the reports of multiple highly experienced treating specialists, overwhelmingly established the applicant's chronic pain condition, making it highly probable that the diagnoses of chronic pain [were] accurate and reliable'.

(2) It did not follow from the judge's findings about the applicant's unreliability that the applicant's evidence of his medical history was also unreliable. As the applicant put it, 'it does not follow that the whole of the applicant's vast medical history should have been disregarded'.

(3) The histories of pain given by the applicant were 'historical and contemporaneous'; and because pain is inherently subjective, 'the applicant was the best and only source of the evidence of its severity and its location'. Moreover, the applicant was not challenged on his experience of pain, and nor was it put to him that he was exaggerating his symptoms.

(4) The judge should have inferred that the medical practitioners who saw the applicant had sufficient experience to determine 'the truth of the symptoms' of which he complained.

(5) The 2018 MRI was objective evidence of an organic cause of the applicant's pain condition.

(6) The judge erred in rejecting medical opinions in circumstances where the medical practitioners who expressed those opinions were not given an opportunity to respond to those criticisms.

(7) The judge was wrong to conclude that there was no objective evidence to support the existence of a physical pain condition, notwithstanding that the applicant did not undergo 'diagnostic blocks' and that no radiological imaging taken after the 2020 MRI was tendered in evidence.

1. As with proposed ground 1, there is no substance in proposed grounds 2 and 3.
2. First, the applicant's submission that the judge took a shortcut from her conclusion that the applicant's evidence was unreliable to a conclusion that the application therefore failed, in order to obviate the need to analyse the medical evidence (or at all), must be rejected. Her Honour's reasons for judgment show a careful and detailed consideration of all of the evidence, including the voluminous medical evidence. Far from taking some impermissible shortcut, not only did the Reasons set out an appropriately detailed analysis of all of the medical evidence, her Honour expressly stated that, notwithstanding any credit or reliability issues, the Court was 'nevertheless [required to] take into account ... cogent and reliable medical evidence, evidence as to [the applicant's] condition prior to and after the accident, and objective evidence, such as diagnostic testing'.[55]
3. Secondly, the applicant's submission that his entire evidence with respect to his pain and physical injuries was not challenged, is devoid of merit. While it was not specifically put to the applicant in cross-examination that he suffered no injury and/or no pain as a result of the accident, the whole tenor of the cross-examination was to the effect that the applicant could not be believed either as to his pre-accident health and circumstances or as to the extent of any consequences he claimed to have suffered as a result of the accident. As the judge correctly observed, the focus of the application was on the applicant's credit and reliability.[56] That challenge was made abundantly clear in the respondent's final submissions to the judge.
4. Thirdly, the fact that lay witnesses and medical practitioners who provided evidence were not cross-examined does not provide any basis for an assertion that the whole of their evidence was thus unchallenged and should have been accepted by the judge. Plainly, the parties conducted the application before the primary judge in the way that applications of this kind are almost invariably conducted.[57] That is, the applicant, being the most important witness, was called to give evidence and to be cross‑examined, with all of the other witnesses (of lesser importance) providing their evidence in written form, leaving it to the judge to sort through and analyse what is often a large body of conflicting evidence. The difficulty of the primary judge's task in this regard has been the subject of repeated identification by appellate judges in this State for more than 30 years.[58]
5. Fourthly, to the extent that the applicant submitted that, because his histories of pain given to the medical practitioners who saw him were 'historical and contemporaneous' and/or because he was 'the best and only source of the evidence of its severity and location', the judge erred in not accepting the applicant's evidence about his pain, that submission must be rejected. Trial judges hearing applications of the present kind are not simply required to accept whatever complaints of pain a claimant might make without conducting a proper assessment of any such claim in the context of the whole of the evidence. Courts routinely perform this task, and sometimes 'histories given to medical practitioners', no matter how 'historical and contemporaneous', are rightly not accepted by the trier of fact.[59]
6. Fifthly, to the extent that the applicant submitted that, the judge should have inferred that the medical practitioners who saw him had sufficient experience to determine 'the truth of the symptoms' of which he complained and that, as a result, her Honour should have accepted the opinions of those medical practitioners, that submission must also be rejected. The judge had the considerable advantage of seeing the applicant's evidence tested in cross-examination - an advantage not shared by any of the medical practitioners. Moreover, as has been said before, it is a question for the judge hearing an application to determine whether an applicant's evidence is reliable. It is not a question to be delegated to medical practitioners, nor is any judge required to defer to the opinion of any medical practitioner. Applications of the present kind are not 'trial by doctors' opinions'.[60]
7. Sixthly, the judge's conclusion that the applicant was an unreliable witness was not the only basis upon which she found he had not satisfied paragraph (a) of the definition of serious injury. Rather, after analysing all of the medical evidence, the judge concluded that the applicant had 'not discharged his onus of establishing ... that he suffered any ongoing physical injury or physical chronic pain condition' as a result of the accident.[61] To a large extent, the foundation for that conclusion was the 2020 MRI which showed no abnormality at any level of the applicant's spine. In circumstances where the medical experts had expressed different opinions about whether there was a physical cause of the applicant's pain, and there were no 'diagnostic blocks' or subsequent radiology showing any physical injury, the judge was entitled to conclude that the applicant had not established the existence of any ongoing physical injury or physical chronic pain condition.
8. While there was evidence upon which the judge could have concluded that the applicant was suffering from an ongoing physical injury or physical chronic pain condition (the high point of which was the evidence of Dr Sullivan and, to a lesser extent, Dr Mehr), the judge was not bound to reach such a conclusion.
9. Given the lack of any evidence of physical injury on the 2020 MRI and the very unfavourable opinion of Dr Thomas as to any physical cause for the applicant's injury, it is unsurprising that, after having analysed all of the evidence, the judge concluded that the applicant had not discharged his onus of establishing, on the balance of probabilities, that he suffered any ongoing physical injury or physical chronic pain condition as a result of the accident.
10. Seventhly, while the judge's conclusion that the applicant's histories of pain and physical restriction were not reliable was not the basis upon which the applicant failed in his claim under paragraph (a), her Honour's conclusion on the issue of unreliability[62] was plainly correct. Even though we have not had the benefit of hearing and seeing the applicant give evidence (in which regard her Honour enjoyed a significant advantage over this Court), our reading of the transcript of the applicant's evidence and the documentary evidence tendered before the judge does not suggest any basis upon which we could conclude that her Honour's conclusion as to the applicant's reliability, and the consequences of that conclusion, could be overturned by this Court.
11. Eighthly, to the extent that the applicant relied upon the affidavits of the lay witnesses (and, in particular, the affidavits of his siblings), the following points may be made:

(1) First, the affidavits of the lay witnesses say nothing about the question of whether the applicant's ongoing symptoms were physically based or psychologically based. Acceptance of the contents of those affidavits could not have changed her Honour's conclusion that the applicant had failed to show that whatever pain he was suffering from at the time of trial was not the result of a physical injury or physical chronic pain condition.

(2) Secondly, the extent to which any of the three lay affidavits could be concluded to contain reliable evidence must be doubted due to the lack of any reference in those affidavits to the applicant's pre-accident health (including the psychological turmoil associated with his former relationship and the various criminal offences he was found to have committed). For example, the bald statement in Touba Hashemi's affidavit that, 'Prior to the accident, ... I never heard or observed [the applicant] complain of depression, anxiety, or any physical pain', cannot (in the light of the applicant's own evidence[63] and the pre‑accident medical evidence)[64] be given any weight.

1. Ninthly, in light of the result of the 2020 MRI showing no abnormality, there is no substance in the applicant's submission that the 2018 MRI (either on its own or in combination with other evidence) required a conclusion that there was, at the time of trial (some four years after the 2020 MRI), an ongoing physical injury or physical chronic pain condition.
2. Finally, to the extent that the applicant submitted that the judge was simply wrong in her conclusion that the applicant had not discharged his onus of establishing, on the balance of probabilities, that he suffered any ongoing physical injury or physical chronic pain condition,[65] having reviewed the entirety of the evidence tendered at trial, we are unable to accept that submission. To the contrary, on the whole of the evidence, the judge's conclusion was correct.
3. Accordingly, and for the reasons given above, proposed grounds 2 and 3 must be rejected.

1. The applicant's proposed appeal does not have any real prospect of success. Leave to appeal must therefore be refused.
2. Finally, at the conclusion of the hearing, we thanked Senior Counsel who appeared for the applicant pro bono in this matter. We wish now to record our thanks to counsel. By providing pro bono assistance to the applicant, counsel not only advanced the interests of that party, but also greatly assisted the Court and facilitated the course of justice in the best traditions of the Bar.

[1] Hashemi v Transport Accident Commission [2024] VCC 1513 ('Reasons').

[2] Formal orders were not made until 4 December 2024, at which time the applicant was no longer represented by solicitors or counsel.

[7] [2013] VSCA 201 ('Meadows').

[8] Etta v Taverner Hotel Group Pty Ltd [2019] VSCA 209, [44(1)] (Tate AP, Beach and McLeish JJA) ('Etta').

[10] The offences included criminal damage, contravening a family violence interim intervention order, contravening a family violence safety notice, unlawful assault, criminal damage and using threatening words in a public place, as well as a number of driving offences.

[11] A consultant psychiatrist who examined the applicant at the request of the respondent on 28 July 2021.

[13] Infringement notices tendered at trial alleged speeds of 10 kilometres per hour in excess of the speed limit on two occasions; exceed the speed limit by 16 kilometres per hour on one occasion; and exceed the speed limit by 45 kilometres per hour or more on one occasion.

[14] Reasons, [25], [27]-[29], [34], [42]-[44] and [52]-[134].

[19] Ibid [137]-[140] (citations omitted).

[45] [2013] VSCA 201.

[46] [1992] VicRp 58; [1992] 2 VR 129 (Crockett and Southwell JJ, McGarvie J dissenting) ('Humphries v Poljak'). See also Transport Accident Commission v Katanas [2017] HCA 32; (2017) 262 CLR 550, 555 [6], 561-2 [22] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); [2017] HCA 32.

[47] Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140 (Crockett and Southwell JJ) (emphasis added).

[48] [2000] VSCA 50; (2000) 1 VR 79 (Winneke P, Buchanan and Chernov JJA); [2000] VSCA 50 ('Richards v Wylie').

[49] Richards v Wylie [2000] VSCA 50; (2000) 1 VR 79, 86 [16]; [2000] VSCA 50.

[50] Ibid 86 [16] (Winneke P, Buchanan JA agreeing at 89 [21] and Chernov JA agreeing at 89 [26]).

[52] And the identically worded s 325(2)(h) of the Workplace Injury Rehabilitation and Compensation Act 2013.

[53] See, for example, Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; (2007) 15 VR 649, 660‑1 [43]-[44] (Neave JA) [2007] VSCA 46; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605, 607‑613 [5]-[29] (Ashley JA), 635-6 [168]-[171] (Neave JA), 636 [172]-[173] (Pagone AJA); [2008] VSCA 167; Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199, [56]-[57], [60] (Redlich, Beach JJA and Cavanough AJA); Sheridan v Victorian WorkCover Authority [2019] VSCA 54, [63] (Beach, McLeish and T Forrest JJA).

[54] Meadows [2013] VSCA 201, [21]-[22] (Maxwell ACJ, Robson AJA agreeing at [42] and Dixon AJA agreeing at [43]).

[57] See Etta [2019] VSCA 209, [44(1)].

[58] See, for example, Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 133 (Crockett and Southwell JJ); Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436, 445 (Southwell and Teague JJ); Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448 (Brooking JA, with whom Tadgell and Buchanan JJA agreed).

[59] See generally, Mobilio v Balliotis [1998] 3 VR 833, 836; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, 1609 [60]; [2003] HCA 48; Veljanovska v Verduci [2014] VSCA 15; (2014) 42 VR 222, 232 [40]; [2014] VSCA 15; Johns v Oaktech Pty Ltd [2020] VSCA 10, [76]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109, [87]-[88].

[60] Lovrenovich v Transport Accident Commission [2025] VSCA 317, [104] (Beach, Kennedy JJA and Nichols AJA).

[63] See the applicant's first and third affidavits, referred to at paragraphs [11(2)-(9)], [17] and [18] above.

[64] See, in particular, the evidence of Dr Kan, referred to at paragraph [33] above; Dr Tanveer, referred to at paragraphs [34]-[35] above; and Dr Khozouei, referred to at paragraph [37] above.