Liu v Transport Accident Commission [2025] VCC 836

(a) serious long-term impairment or loss of a body function; or

1. Mr Liu's claim relates to tinnitus which came on after he struck his head, when the bus he was travelling in braked suddenly. There is no dispute his tinnitus condition is permanent or that it came on after the accident.
2. For Mr Liu to succeed, he must demonstrate that the consequences of the injury are "more than significant or marked" and "at least very considerable".[3]
3. There were two issues before the Court, the first whether the tinnitus is an organic or psychological condition, and the second whether the impairment consequences of the tinnitus meet the statutory test.

1. Mr Liu was born in China in 1991 and he is thirty-three years old. He has a bachelor's degree in English language and literature from China and worked as a translator and website editor in China.
2. Mr Liu has been in Australia for about eight or nine years. He completed a master's degree in interpreting and translation. Since living in Australia, he has worked in a variety of jobs, including as a sales representative for a telecommunications company, a rideshare driver and as a glazier.
3. On 3 July 2019, Mr Liu was a passenger on a bus. He hit his head on the right side of his body against the metal bar on the seat behind the driver when the bus driver braked heavily and without warning. Since the accident, he has had right shoulder pain, headache and tinnitus in his ears.
4. Mr Liu attended his doctor on 31 July 2019 and complained of right-sided head discomfort and tinnitus, present since the bus accident. He underwent various MRI scans, and other scans, of his brain and shoulder.
5. Mr Liu's symptoms have persisted. He has had audiological testing and attended various doctors, including Dr Drew Thompson, Dr Shahram Sadeghi, his psychologist and his general practitioner ("GP").
6. The evidence before me suggests there is no objective test for tinnitus. There is no treatment, cure, nor medication which can alleviate or reduce the symptoms.

1. Mr Liu affirmed three affidavits in support of his application; one on 5 August 2024, another on 15 May 2025 and a third on 16 June 2025. He was also cross-examined.
2. No submissions were made by the defendant in relation to Mr Liu's credit.
3. From my observations, Mr Liu was a softly-spoken and mild-mannered witness who answered questions directly and appeared to me to be doing his best to give accurate and truthful answers. When he could not recall, he said that and explained the reason, for instance, due to the passage of time. On one occasion, Mr Liu made an error with the date of a work injury. He initially told the Court it occurred in March, however promptly realised he had made an error in the date, corrected it, and apologised for his mistake.
4. Mr Liu made a number of concessions when being cross-examined. He conceded he has a shoulder injury which, in addition to the tinnitus, affects his sleep. When asked whether any treatment had been suggested for the tinnitus, he answered that his audiologist said, "listening to such music would be beneficial to [his] tinnitus".[4] He also made concessions against what some might consider to be in his interest. In particular, when asked about his hearing, he told the Court he sometimes has some difficulties, but most of the time he hears well.[5]
5. I consider Mr Liu was a credible and reliable witness.
6. In his oral evidence, Mr Liu told the Court he had obtained a master's degree in translation from China and a master's degree in interpreting from Monash in 2023. When asked whether he could do interpreting as a job, Mr Liu told the Court that working as a translator and interpreter require a high level of ability to concentrate and to have good hearing.[6] He considered his tinnitus had an impact on both of these requirements.[7]

1. Dr Jeff Miao reported in August 2020 that Mr Liu first attended the "surgery" on 5 July 2019 complaining of headache for two days, following a head injury during transport from the airport to his home.[8]
2. Mr Liu was injured on a public bus. When the bus stopped suddenly, his head crashed onto the holding bar and he fell to the ground. In particular, Dr Miao reported that the physical examination showed a haematoma on the right side of the head only.[9] Various reports and scans were ordered.
3. On 8 May 2025, Dr Miao reported to Mr Liu's lawyers that the tinnitus has affected Mr Liu's sleep, his social communications and working abilities.[10]
4. Audiological testing in April 2023 revealed that the:

"... Audiogram obtained today represent (sic) best hearing thresholds obtained during the appointment, however, due to constant tinnitus bilaterally reported by [Mr Liu], test re-test consistency was low... ."[11]

1. In terms of the hearing on the left, the audiologist found mild SNHL, but described normal hearing. On the right, mild SNHL, but also normal hearing. The test re-consistency for this, however, was poor due to the presence of the tinnitus.
2. Subsequent audiological testing in March 2025 reported that Mr Liu was concerned about bilateral tinnitus in both ears. It was becoming annoying for him. Speech-discrimination tests were performed and revealed excellent speech discrimination at normal conversational level for both ears.[12]
3. Tinnitus management was discussed with Mr Liu. Given the current history and hearing level, a hearing test every two years was suggested by the audiologist. The findings in each ear was mild high-frequency sensorineural hearing loss.[13]
4. In July 2022, Dr Sadeghi recorded a history that Mr Liu continued to be troubled by the tinnitus which was interfering with his concentration, day-to-day life and sleep at night. His right shoulder symptoms, including mild pain and mildly-restricted range of motion, were improving without any intervention.[14]
5. In May 2025, similar symptoms were noted by the treating psychologist, Michael Wang.[15]
6. In June 2025, psychologist, Ms Winnie Lau, reported that Mr Liu's concentration and memory had worsened. He was no longer able to pursue his dream as an interpreter. His physical health had, however, improved with treatment. He struggled to sleep and he was drinking to help him doze off. [16] Ms Lau recorded a history that Mr Liu was most affected by persistent tinnitus. It was said to impact his daily functioning and activities. It hampered his ability to concentrate, to pay attention, to engage in conversation, and follow instructions. It also diminished his sleep quality. It affected both his life and his work.[17]
7. Ms Lau also reported that Mr Liu had taken three years to complete a two-year degree and had attributed this to poor concentration and memory. In her opinion, both of these were not adequate for Mr Liu to pursue the role of a translator.[18]

1. Mr Liu relied on a neurological report by Dr Hooi dated 3 April 2023. In that report, Dr Hooi said Mr Liu sustained head concussion and right shoulder injury resulting in persistent tinnitus, right shoulder pain, and mood disturbance. From a neurological point of view, it was likely the tinnitus and mild disequilibrium symptoms would persist. Mr Liu had had ongoing tinnitus for over three years, and in the absence of any reversable cause, the symptoms were likely to persist indefinitely. Dr Hooi recommended review by an ENT specialist and audiological testing.[19]
2. Dr Hooi diagnosed post-concussion tinnitus with mild disequilibrium. He considered the diagnosis was consistent with the stated cause. He took into account the described mechanism of injury and the temporal onset of the conditions.[20] In Dr Hooi's opinion, Mr Liu was capable of undertaking full-time employment and could work as a translator.[21]
3. In June 2025, Dr Hooi provided a supplementary report, in which he said:

"I last reviewed Mr Liu more than two years ago. At the time of review my impression was that he most likely had post-concussion tinnitus. I recommended ENT review, audiology testing and vestibular function testing. I am not certain if he has had any of the above investigations. ... ."[22]

1. However, Dr Hooi considered Mr Liu's presentation was genuine and consistent with the clinical history. The neurological examination at the time did not reveal signs of other pathology. The condition had an organic basis.[23]

Mr Malcolm Baxter, ear, nose and throat surgeon

1. On 20 March 2023, Mr Baxter reported both to the defendant and Mr Liu's solicitors. In that report, Mr Baxter noted a CT scan of the brain had been reported as normal without evidence of fracture, and an MRI scan was similarly reported as normal. He said, in particular:

"Almost certainly from the day after the accident, [Mr Liu] believes possibly the same day, he has noted tinnitus, which is a ringing sensation constantly in the head. He cannot localise it to one ear or other. It is worse when the room is quiet and is buzzing in nature and is very annoying to him. It interferes with his ability to hear other people and irritates him. He suffers from insomnia otherwise and takes melatonin but he does believe that it interferes with his ability to fall asleep and when he wakes in the night sometimes, he hears it. He believes his hearing has been affected, probably due to the tinnitus because he cannot understand what is said to him now.

He said that he has never had previous problems with ear conditions ... ."[24]

"The right-sided tinnitus probably arose as a direct result of a head strike during the bus accident on 3 July 2019. Tinnitus certainly can arise as a result of a blow to the head.

The very mild hearing loss right is probably also related to the head strike."[25]

1. Mr Baxter said the blow to the right side of the head resulted in a concussive blow to the inner ear which has resulted in the right-sided tinnitus. Loss of consciousness was not necessary for tinnitus to arise.[26]

1. In November 2024, Dr Furtado reported to Mr Liu's solicitors. She confirmed that her specialty was appropriate to conduct the assessment and restricted her opinion to Mr Liu's behaviour and performance on cognitive and psychological testing.[27]
2. On clinical interview, Mr Liu was considered to be a reliable personal historian and provided many details consistent with his affidavit. He correctly reported that the accident occurred on 3 July 2019. The next day, he had a lump develop on the right side of his head and had significant pain all over his body, including the right shoulder and headache. He continued to be affected by tinnitus and right shoulder pain, which affected every aspect of his functioning, including daily activities.[28]
3. In Dr Furtado's opinion:[29]

(a) there was a head strike, but no loss of consciousness, with notable haematoma observed on the right side of his head post-accident;

(b) there was no evidence of post-traumatic amnesia;

(c) ever since the accident Mr Liu had continued to experience tinnitus;

(d) his current cognitive difficulties might be conceptualised as difficulties in effortful auditory attention regulation, variability in processing speed and moderate executive dysfunction with secondary impacts on new learning, particularly of verbal information. His cognitive behavioural difficulties were exacerbated by the complex interplay of persistent tinnitus, mood disturbance and persistent fatigue and/or sleep issues.

1. In Dr Furtado's opinion, Mr Liu sustained a mild traumatic brain injury as a result of the head strike against a metal bar when travelling in the bus. The tinnitus had not resolved and was permanent. The current neuropsychological assessment revealed persistent changes to his neurocognitive behavioural and psychological symptoms, which continued to impact his sleep, fatigue, and functioning in everyday life.[30]
2. The constellation of symptoms was consistent with "persisting post-concussive symptoms", which persist beyond the expected recovery period.[31] The tinnitus affected his ability to concentrate, as he was required to use more mental effort to focus on the task at hand while ignoring the tinnitus.[32] The current neuropsychological assessment revealed notable difficulties in basic, complex, sustained and focused attentional abilities, all of which were impacted by Mr Liu's persistent tinnitus.[33]
3. Mr Liu could not sleep in a quiet space, as the tinnitus was unbearable. He had to wear headphones and play music or soft background noise. While he took melatonin to initiate sleep, he reported he does not achieve continuous sleep patterns, rather averaging five to six hours of disrupted sleep every night. This impacted on his fatigue levels throughout the day, which in turn exacerbated his cognitive, behavioural and psychological social functioning.[34]

Dr Michael Silverstein, ear, nose and throat surgeon

1. In February 2025, and again in May 2025, Dr Silverstein reported to Mr Liu's doctors.[35] Dr Silverstein noted a history of a whiplash-type injury in the bus accident.[36] He considered there may have been methods to reduce Mr Liu's appreciation of the tinnitus, but there was no specific cure. Psychological opinion might have been of value in regard to the psychological effects of the tinnitus on Mr Liu.[37]
2. Dr Silverstein diagnosed an acceleration/deceleration-type injury, with the unfortunate implication there has been a sensorineural injury causing the tinnitus. However, it had not been severe enough to cause a hearing loss of any significance.[38]
3. He considered there was a direct relationship to the transport accident. Mr Liu was making attempts to mask the tinnitus, but the results of these were very unpredictable. The condition was likely to persist on an ongoing basis.[39]
4. In May 2025, Dr Silverstein provided an opinion that the blow to the head did not cause a loss of consciousness and that Mr Liu had had transient episodes of dizziness which have subsequently resolved. The clinical observations involving the ear, nose, and throat did not substantiate any ongoing organic injury. The basis for that conclusion was the physical examination, the radiological imaging, and the audiometric testing, all of which indicated a normal physiological response, with no ongoing organic effects or defects. There were no qualitative features regarding the symptoms and no quantity value, as noted in the original report. Any deemed effect of the tinnitus would be in the psychological or psychiatric area.[40]

1. In May 2025, Dr Thomas reported that he considered the ongoing bilateral tinnitus was in fact psychogenic in its origins. He based this opinion on the absence of any history of noise exposure in the workplace, or temporomandibular problems. The previous audiological testing had not been available at the time of writing the report.[41]
2. In particular, Dr Thomas referred to an absence of history of any pre-existing ear infection, discharge or pain and no history of direct trauma to the head or ears, nor of explosions or ear infections.[42]
3. Dr Thomas considered the tinnitus was having no significant impact on speech discrimination over and above the diminution of hearing accounted for in the pure tone audiogram. The symptoms had persisted for five years and there was no objective evidence of ear dysfunction.[43]
4. Dr Thomas concluded that although the tinnitus, dizziness, brain fog and headaches were all directly related to the accident, the tinnitus was psychogenic in origin. The symptoms were permanent and ongoing.[44]

(a) there was no attack on Mr Liu's credit, or anything deposed to in his affidavits or to his doctors;[45]

(b) there is no cure or medication for tinnitus. There is no objective test;[46]

(c) Dr Hooi and Mr Baxter both consider the tinnitus was an organic condition. Dr Hooi diagnosed post-concussion tinnitus. As a neurologist, Dr Hooi could clearly provide an opinion on questions of whether something is a concussive or post-concussive injury. He also considered the symptoms would persist indefinitely. In particular, he expressed the view that Mr Liu's presentation was genuine. He found the tinnitus was a direct result of the head strike. This opinion is significant, in my view, as he was a specialist appointed by both parties;[47]

(d) the Court should prefer the opinion of Mr Baxter to that of Dr Thomas, because although Dr Thomas received a history of a head strike, his opinion was clearly based on the incorrectly assumed fact there was no direct trauma to the head;[48]

(e) the presence of trauma to the head was noted by the GP as a "haematoma", close in time to the transport accident;[49]

(f) the opinion of Dr Silverstein needs to be carefully considered before accepting the submission on behalf of the defendant that there was a psychological, rather than organic, basis for the tinnitus;[50]

(g) the effects of the tinnitus were confirmed in the neuropsychological report of Dr Furtado.[51] That report also supported Mr Liu's position that the tinnitus was an organic condition;[52]

(h) the Court of Appeal in Haden Engineering Pty Ltd v McKinnon[53] said that the loss of capacity to have a good night's sleep can be a "very considerable" consequence;[54]

(i) Mr Liu relied on his inability to work as an interpreter because he cannot hear properly, or his concentration was impeded by the constant ringing in his ears.[55]

(a) in this case, there were not any of the usually-associated causal conditions of tinnitus, such as explosions and loud noises;[56]

(b) the imaging of Mr Liu's head and brain were unremarkable;[57]

(c) the audiology report showed a very small or very mild reduction in hearing;[58]

(d) Dr Thomas and Dr Silverstein both considered the tinnitus had a psychological basis;[59]

(e) Mr Liu was not taking any medication, he was capable of performing all of his activities of daily living and work ,and playing sport, with no significant difficulty;[60]

(f) Dr Furtado's findings cannot be considered to be on account of the tinnitus. Her qualifications were in respect of brain injury;[61]

(g) Dr Hooi deferred his opinion to an ear, nose and throat specialist;[62]

(h) although Mr Baxter accepted Mr Liu had the condition, the defendant submitted there were two other doctors who placed the origin of the condition on a psychological basis;[63]

(i) the affidavits failed to identify sufficient consequences to reach the "very considerable" test.[64]

1. I make reference to the significance of credit as the Court of Appeal has consistently told us, and thus in this case, I accept Mr Liu as a witness of truth. Accordingly, I have no hesitation in accepting the consequences of the tinnitus as deposed to in his affidavits and in the histories he has provided to the various doctors, whose reports are in evidence before me.
2. Considering the evidence as a whole, I find that Mr Liu suffered a post-concussive tinnitus which is permanent.

1. Considering the evidence as a whole, I find Mr Liu suffered a post-concussive tinnitus which is permanent. I prefer the opinion of Mr Liu's treating doctors regarding the nature and extent of the injury, as they have seen him more often than independent medical examiners.
2. I accept the submission that the injury has an organic basis for the following reasons:

(a) he initially suffered a head injury and a visible haematoma was observed immediately following the accident;

(b) Dr Hooi considered the condition to be consistent with an organic cause, given the mechanism of injury and the temporal onset of the conditions;

(c) Mr Baxter also considered the condition probably arose as a direct result of the head strike during the bus accident. Significantly, he said "[t]innitus can certainly arise as a result of a blow to the head";[65]

(d) I find Dr Furtado was qualified to comment on the sequela of head injuries and did so in relation to the tinnitus;

(e) Dr Silverstein, diagnosed an "acceleration/deceleration injury", which is a particular reference to the head strike. Dr Silverstein also found that there was a direct relationship between the transport accident and the condition due to that head injury;

(f) I accept the submission made on behalf of Mr Liu that, where Dr Silverstein refers to any "effect" of the tinnitus being in the psychological or psychiatric arena, that more appropriately relates to how Mr Liu might be dealing with the ongoing consequences of the tinnitus, rather than providing an opinion about whether the condition was organic or psychological. I consider that his reports, taken as a whole, suggest the condition is organic;

(g) I reject Dr Thomas's opinion the tinnitus was likely to have been of psychogenic origin, because it was based on an incorrect understanding of what actually occurred in the accident.

Findings regarding consequences of the injury**[66]**

1. I accept Mr Liu's evidence he has suffered from a constant high-pitched ringing in both ears ever since the accident, that it is always there and it its loudness can vary, but it is never gone. It is bothersome to him. It is worse at night in a quiet room, because it fills the silence. It is intrusive. It makes it difficult for him to sleep and he relies on background noise to mask it, which does not always work. Sometimes he lies in bed for a long time, until he is exhausted enough that he drifts off to sleep.
2. The tinnitus intrudes into his thoughts. It exacerbates the stress he might feel from time to time and he gets tired of having to use masking strategies. It tends to pierce through any background noise and it takes a lot of mental energy to focus away from it. At times, he can fixate on the tinnitus. Principally, the tinnitus affects his sleep, although the shoulder pain also does sometimes. If he wakes at night, he has a hard time falling asleep. All he can hear is the humming in his ears.
3. I accept his evidence he is frustrated and feels like he does not have his own peace of mind. He gets fatigued from having to contend with the constant distraction of the tinnitus. Sometimes, when he does rideshare work, he finds it hard to converse with passengers. If he listens to music, he has to turn the volume up very loudly to mask the symptoms.
4. Mr Liu feels upset and frustrated due to having to endure the tinnitus and he feels fatigued. His productivity, energy levels and mood are affected by the tinnitus. In all of his affidavits, he confirms his sleep is continuously affected by it.
5. He does not take any medication, nor have any medical treatment, because there is none for tinnitus. This, I consider of some significance, because there is no way in which he can alleviate the symptoms.

1. Mr Liu is a glazier and is able to work. He told the Court he was unable to wear his headphones at work to mask the symptoms, which would otherwise provide him with some relief from the ringing in his ears. I consider this to be a significant consequence, as he is required to work all day long with a constant ringing or buzzing noise in his head.

1. I accept his evidence he struggles to get a good night's sleep and it prevents him from falling asleep until he is exhausted. I accept that, although his shoulder also affects his sleep, predominantly the tinnitus is the biggest problem. The fact there is no treatment for this condition and the unrelenting nature of it each night for the foreseeable future, in my view, gives rise to a "very considerable" consequence.

1. The tinnitus does not affect his mobility or activities of daily living, and to a limited degree it affects his sports and hobbies, as it impedes his ability to communicate with people when he is participating in sports activities.

1. In my view, the unrelenting nature of the tinnitus and its impact on his concentration, communication and ability to work as an interpreter, in combination with my other findings, give rise to a "very considerable" consequence.
2. Exercising the value judgment required of me, I find Mr Liu has a serious injury on account of the tinnitus, and I grant him leave to commence proceedings in respect of that injury.

[1] Written as "Shushi Liu" in the Originating Motion submitted to the Court dated 7 October 2024.

[3] Humphreys v Poljak [1992] VicRp 58; [1992] 2 VR 129

[41] Defendant's Court Book ("DCB") 19 and 16-17

[53] [2010] VSCA 69; (2010) 31 VR 1