1. At the trial of the proceeding, the applicant relied upon two affidavits sworn on 29 May 2023 and 1 October 2024, and was the only witness to give oral evidence. The remaining evidence largely consisted of medical reports.

1. In her first affidavit, the applicant described the circumstances of the first transport accident and deposed that the impact was 'significant'. She recalled feeling 'sore all over' on her way home and got 'really sore' later that night. She noted her attendances upon the general practitioner, chiropractor and osteopath as we have already described. She also received treatment from a Bowen therapist.
2. The applicant referred to the second transport accident and stated that she 'temporarily aggravated' her back in that accident. She stated: 'my back soon settled and returned to how it was before this accident'.
3. She also referred to the third transport accident, but did not specify the nature or duration of any increased back or left leg symptoms. She did state that she took time off work, and returned on 4 May 2020.
4. The applicant deposed that she continued to suffer 'constant, fluctuating low back pain' and that she had 'never been completely free of back pain since the accident' (which appeared to be a reference to the first transport accident). She also said that she experienced 'ongoing, variable left leg symptoms', which she had also experienced since the (first) transport accident. She detailed various consequences of her back pain, including that she had difficulty sitting and standing for long periods; could not return to her pre-injury work as a technician; has broken sleep; has difficulty driving; and could no longer swim and cycle as she once did. She had monthly physiotherapy and osteopathy treatment, and undertook regular exercise. She took Voltaren, Nurofen and Panadol, as well as magnesium.
5. In her second affidavit, the applicant deposed that she applied to become a police officer in April 2019 as she was looking for a more purposeful role and was attracted to the job security and career progression associated with the role. She said that, looking back, she had been unrealistic about her prospects of completing the physical requirements of the application process. She said that she continued to suffer 'constant, fluctuating low back pain', as well as cramping in her left calf. Sometimes she also experienced a 'hot flush' sensation throughout her left leg. She said that she had been experiencing low back pain and left leg symptoms since the first transport accident. She mentioned similar consequences to those detailed in her first affidavit, highlighting her broken sleep and limitations in exercise. Heavy housework also caused her increased back pain.
6. Under cross-examination, the applicant had some difficulties with recollection, including recollecting her treatment after the first transport accident and whether she took time off work. However, she said that between May 2018 and May 2019 (between the first two transport accidents), she had 'severe sciatic pain down [her] leg, like burning, stabbing pain'. She also said that she had not experienced the burning stabbing nerve pain since surgery. She maintained that the other two transport accidents caused 'temporary' consequences only.

1. The applicant relevantly[8] relied upon reports from treating doctors Dr Hansen, Dr Bashyam, Mr Schneider and Mr Chan.
2. Dr Hansen was an osteopath at the Shepparton Osteopathic Clinic who first treated the applicant on 19 August 2019 after the second transport accident. She provided two reports, one undated, and one dated 27 May 2024. In her 27 May 2024 report Dr Hansen documented the applicant's attendance at the Shepparton Osteopathic Clinic from 15 October 2018, stating:

At her initial appointment at the clinic, Yelena presented with left > right lower back pain with numbness and tingling in her left calf and feeling like her left calf was constantly about to cramp and also weak. She also mentioned left shoulder issues which have been present since the motor vehicle accident (MVA) in early 2018 and some of her lumbar issues are associated with the MVA. Precisely what symptoms are associated with the MVA is not fully clear from this initial history.

1. Dr Hansen also recorded that the applicant was seen twice more in August 2018 in relation to her left calf and lower back. She opined:

I didn't start seeing Yelena until after her second MVA in 2019. Based on the clinical notes from previous clinicians, who no longer work at the clinic, I believe there were lumbar disc injuries present from the 2018 MVA. ...

Initial cause of lumbar disc injuries in 2018 with subsequent accidents and flare ups which worsened her condition. ...

1. Dr Bashyam, general practitioner, at Princess Park Clinic, provided a report dated 4 February 2020. The clinical notes suggest that the first time she saw the applicant was in October 2019, being after the second transport accident. The report relevantly states:

According to Ms Lovrenovich, she had two MVA in may 2018 and may 2019. After first accident, she developed lower back pain. It gradually got worse to the extent that it started to radiate down her left leg along with reduced sensation. Following that she has seen chiropractor, osteopath and message therapy regularly and her condition improved from not able to walk properly to able to walk well but her sensory disturbance never improved. Her second accident in may 2019, caused flare up of her back pain with radiating down her left leg. Back pain gradually got worse and came for review on NOV 2019.

1. As indicated already, Dr Bashyam ordered an MRI of the applicant's lower back in November 2019.
2. Mr Schneider, physiotherapist at North East Life, provided a letter to Dr Bashyam dated 21 April 2020, after he had examined the applicant on the previous day (which was after the third transport accident). He stated:

The severity of the symptoms are sufficient to affect her livelihood and significantly reduce her functional capacity. ... Her history is somewhat complex, having had 3 MCAs over the past 2 years, with the most recent one in April 2020 exacerbating her lower limb symptoms significantly.

1. Finally, the applicant tendered three reports from Mr Chan, neurosurgeon and spinal surgeon, dated 29 June 2020, 16 September 2021 and 27 October 2021, as well as his operation notes dated 16 September 2021. The applicant did not consult Mr Chan until 29 June 2020 (about 10 weeks after the third transport accident). In his first report he recorded that the applicant:

sustained left sciatica and mechanical back pain after her motor vehicle accident. This resulted in left leg pain with left leg numbness. This is affecting her overall function and ability to bend and walk.

1. However, it is not clear which transport accident Mr Chan was referring to.

1. Of the medico-legal reports, three were written by Mr Garry Grossbard, orthopaedic surgeon; one was written by Professor Paul D'Urso, neurosurgeon; and two were written by Mr Gary Speck, orthopaedic surgeon. All of the medico-legal reports were written after the applicant's third transport accident.
2. The three reports from Mr Grossbard were dated 13 July 2021, 14 February 2023 and 5 June 2024. Mr Grossbard examined the applicant on each of those dates.
3. After recording details of the first transport accident, Mr Grossbard wrote:

Ms. Lovrenovich described generalised aches and pains. She told me saw a doctor at the Wangaratta Hospital the following day. At that time, she felt pain in her neck which settled over about a week. She described bruising over her right shoulder and abdomen from the seat belt. She told me no X-rays or scans were arranged.

Ms. Lovrenovich told me she saw her general practitioner again and anti-inflammatory medication was prescribed. She told me she was off work for about month following this incident. At the time she was complaining of increasing low back pain and pain in the left leg, together with a feeling of weakness around the left knee. She told me she attended a chiropractor. She undertook treatment with acupuncture and massage as well as trying Bowen therapy. Despite these modalities , she did not improve, and felt if anything her leg was becoming weaker. She told me she obtained a knee brace particularly to support her knee at work.

Ms. Lovrenovich told me she was able to attend a cycling trip in Asia which she undertook over a couple of weeks. She told me she took on regular swimming and osteopath treatment. There was a gradual improvement in her pain level.

1. Mr Grossbard opined that he had 'no doubt' the incident of 26 May 2018 had been a 'major aggravating factor' in the presence of pre-existing lumbar disc disease.
2. In his second report, Mr Grossbard recorded that he and the applicant 'went over [his] previous report of 13 July 2021 to confirm its veracity'. He proceeded to record the same details about the applicant's reports of pain after the first transport accident as appeared in his first report and ultimately opined:

I believe this lady has suffered a significant disc injury because of the motor accident of 26 May 2018. ...

I believe the motor vehicle incident of 8 April 2020 may have been a further aggravating factor in this lady's symptoms but was not the primary cause of her history of sciatica. I consider most of the pathology and clinical presentation relates to the motor accident of 26 May 2018.

1. In his third report, Mr Grossbard again recorded that he went over his report of 14 February to confirm its veracity. He ultimately opined:

I believe this lady has suffered injury to her lumbar spine in the presence of a long history of previous intermittent episodes of low back pain occasionally affecting the right leg.

Since the motor vehicle incident of 26 May 2018, the sciatica has been associated with left leg pain. Surgical intervention has resulted in a diminution of pain but the persistence of calf cramping which since the time I last saw her has also diminished in frequency. ...

Whilst I acknowledge the motor vehicle of April 2020 may have been a further aggravating factor to this lady's injury, most of the pathology probably arose following the motor accident of 26 May 2018.

1. Prof D'Urso's report was dated 1 July 2024. He examined the applicant on 27 June 2024 and recorded the applicant's symptoms following the first transport accident as follows:

Yelena stated she developed neck and left shoulder pain at the time of the accident and she also began to develop back pain, left sided sciatic symptoms and weakness of her left knee. Yelena stated at the time of the accident she was working as a Telstra Field Technician and she was unable to work for one week following the accident and then she returned to her normal duties. Yelena stated she was never quite the same following this accident and suffered a degree of persisting back and left sided sciatic symptoms.

1. Prof D'Urso recorded that the second transport accident 'aggravated' the applicant's back pain and left-sided sciatica, 'but she was able to continue to work in a light duties capacity and did not require time away from work'. He also recorded that the third transport accident 'further aggravated' the applicant's back pain and left-sided sciatica, and that she was unable to work for one month following that accident. Further, that her symptoms persisted to the point that she underwent a microdiscectomy. He then opined:

It would appear that a motor vehicle accident on 26th May 2018 precipitated the onset of back pain and left sided sciatic symptoms and is likely to have contributed to the development of an L4-5 and L5-S1 intervertebral disc prolapses causing subarticular nerve root compression. The motor vehicle accident on 26th May 2018 is likely to have aggravated a pre-existing degenerative condition of the L4-5 and L5-S1 intervertebral discs and led to a worsening of prolapse and nerve root compression. ...

It would appear that Yelena has improved following her lumbar discectomy surgery but still has residual disability and incapacity as a result of the motor vehicle accident on 26th May 2018 ...

1. Mr Speck's reports were dated 10 July 2024 and 17 September 2024 and were commissioned by the respondent.[9] He examined the applicant once, on 3 July 2024.
2. In his first report, Mr Speck recorded the applicant's symptoms following the first transport accident as follows:

She said she was 'sore all over' at the time but especially noted symptoms across where the seat belt had been across her shoulder and abdomen and the top of her shins with bruising developing subsequently.

She said the pain extended from the left buttock into the calf and over a short period afterwards and the pain has continued.

The pain continued in the left low back area. She felt that her left knee was going to give way and used a knee brace which she self-prescribed. She said the symptoms in the left leg commenced within 2 months of the transport accident but the exact date she was not sure of. She said her left leg symptoms were regularly there.

1. When describing the treatment the applicant received after the first transport accident, Mr Speck recorded the applicant's complaint that she 'continued on with symptoms in the left lower back and [that] this area of pain continued from the time of that transport accident and continued through the subsequent accidents'.
2. After citing relevant clinical records, Mr Speck opined:

Miss Lovrenovich's diagnosis in relation to her current presentation with back and left leg pain is of surgically treated lumbar disc prolapses at the L4/5 and L5/S1 on a background of constitutional disc desiccation. ...

On balance it is reasonable to attribute the onset of left sciatica and leg pain to the 1st transport accident on 26/5/18 although the natural history of disc prolapse is of 90% of patients recovering spontaneously within 3 months her history is of ongoing fluctuating symptoms. The prior symptoms may reasonably be attributed to constitutional disc desiccation or simple myofascial or muscular back pain episodes.

1. Mr Speck then answered a series of questions as follows:

1. Your diagnosis of any orthopedic injuries sustained;

a) as a result of the transport accident on 26 May 2018

Answer: On balance it is reasonable to attribute the onset of left sciatica and leg pain to lumbar disc prolapse which may have been solely at the L5/S1 or at the L4/5 and L5/S1 discs. Please see 'Synopsis' and 'Diagnosis' above for further discussion. ...

2. The prognosis for Ms Lovrenovich's injuries sustained;

a) on 26 May 2018

Answer: The L5/S1 and L4/5 lumbar disc prolapses surgically treated are stable. I do not expect her condition to change although her level of activity could be improved by the suggested treatments including a multidisciplinary pain management program and addressing any mental health issues identified which may produce avoidance behaviour.

b) that are unrelated to the subject accident

Answer: Nothing further.

1. Mr Speck wrote his second report after being provided with Mr Grossbard's report dated 5 June 2024 and Prof D'Urso's report dated 1 July 2024. He was not provided with Mr Grossbard's earlier two reports.
2. Mr Speck commented that Prof D'Urso's report did not 'acknowledge any past history of back problems of a constitutional nature', and that Prof D'Urso noted that the applicant 'had her surgery as a result of deterioration after the second motor vehicle accident'. However, he did not find any reason to alter his opinion after reviewing these reports.

1. After summarising the applicant's background, the judge considered at the outset whether the applicant was a reliable witness. At [55] of her Reasons, the judge concluded that the applicant's evidence was not reliable, stating:

I found Ms Lovrenovich's evidence about her back and leg symptoms after the first, second and third transport accidents unreliable for the following reasons:

(a) Ms Lovrenovich's evidence that between the first and second transport accidents she had ongoing and continuing 'incredibly uncomfortable' back pain, and 'severe sciatic pain down my left leg, like burning, stabbing pain' was inconsistent with:

(i) The lack of any recorded attendance upon her GP between 4 June 2018 and 9 November 2018;

(ii) The lack of any prescription pain or anti-inflammatory medication for her lower back or left leg pain between the first and second transport accidents;

(iii) The absence of complaints of back and leg pain in the records of attendance upon her chiropractor on 19 June 2018 and 4 July 2018 (both noting left shoulder soreness), and then no attendance upon the chiropractor for three months;

(iv) The clinical records of the chiropractor, osteopath and GP in October and November 2018, which recorded a recent injury to Ms Lovrenovich in which she developed lower back and left leg symptoms whilst working on her car;

(v) The ability to participate in eight to ten days of her cycling holiday in Vietnam and Cambodia in late 2018;

(b) Ms Lovrenovich was not referred to any specialist for assessment of her lumbar spine condition after the first transport accident;

(c) Her application to join Victoria Police in April 2019 whilst cognisant of the fitness requirements for recruitment and the physical demands of the role.[10]

1. The judge considered that the clinical records must be approached with caution, but that the records of attendances between the first and second transport accidents were inconsistent with the applicant's evidence of significant back and leg symptoms from the time of the first transport accident.[11]
2. Her Honour also found that the applicant was unable to reliably recall either her symptoms and treatment after each transport accident, or the accounts that she had given to medical practitioners and that she had subconsciously inadvertently or otherwise reconstructed the narrative.[12] Examples of this reconstruction included:

(a) the applicant was unable to recall whether she took any prescription pain medication between May 2018 and May 2019;

(b) the applicant could not recall how much time she had off work after the first transport accident;

(c) the applicant's evidence in cross-examination as to her level of participation in her cycling holiday in late 2018 was at odds with her affidavit;

(d) the judge was not persuaded that the applicant remembered what she did or did not say to Prof D'Urso;

(e) the applicant acknowledged that she could not remember what she said to Mr Grossbard;

(f) the applicant recalled wearing a knee brace at some point after the first transport accident, but could not recall when; and

(g) the applicant said the aggravation of her back and leg symptoms after the second transport accident was temporary, but she was unable to say how long the aggravation lasted.[13]

1. The judge also found that the applicant's evidence as to the reason why she did not have the MRI scan requested in November 2018 (that the expense was a decisive factor) was unconvincing in circumstances where the applicant had earnt $96,000 in that financial year and had an accepted TAC claim. Although she accepted the applicant's evidence that Dr Slot suggested she should see how she progressed, the judge considered that the more likely explanation for not having the scan was that the applicant did not feel it was justified given the nature of her symptoms.[14]
2. The judge therefore did not find the applicant's evidence to be reliable and instead looked to objective evidence.[15] She proceeded to summarise the medical evidence, noting that the applicant could not aggregate the impairment consequences of the three transport accidents.[16] Rather, it was for the applicant to prove that the condition that resulted from the first transport accident is of itself enough in terms of impairment consequences to satisfy the statutory definition.[17] Given the judge's earlier conclusion that the applicant's account of her symptoms from time to time was not reliable, her Honour considered it necessary to examine the more contemporaneous accounts to determine the course of the applicant's lumbar spine condition from time to time.[18]
3. The judge found that the applicant suffered intermittent back pain prior to the first transport accident. The most recent episode had been in mid to late 2017 when she experienced lower back pain and right leg symptoms requiring regular chiropractic treatment.[19] However, she accepted that the applicant suffered an aggravation injury to her lumbar spine in the first transport accident. The applicant complained to her general practitioner of lower back pain and left leg symptoms within a matter of days, required a week off work, then resumed her pre-injury duties.[20]
4. The judge considered that the applicant's lower back and left leg pain 'improved over a matter of weeks after the first transport accident'.[21] On the available evidence, the applicant did not return to her general practitioner after 4 June 2018; she stopped seeing her chiropractor on 4 July 2018; and there was no evidence of any treatment for lower back or left leg pain between 4 July and 8 October 2018.[22]
5. The judge next noted that in early October 2018 the applicant experienced the onset of significant left leg and lower back pain after bending over the bonnet of her car for a prolonged period during the October 2018 incident.[23] There was no medical opinion which suggested a causal link between the episode of pain in October 2018 and the first transport accident.
6. The judge also highlighted that the applicant did not have the MRI scan requested by Dr Slot. She found that cost was 'not a decisive factor'. Rather, the applicant did not feel her symptoms were of sufficient severity to justify the cost.[24] The judge made this finding because the applicant did not return to a general practitioner until after the second transport accident, she was able to participate in the majority of her cycling holiday in late 2018, and she applied to Victoria Police in early 2019 which she likely would not have done if she had been experiencing any significant ongoing lower back and left leg pain.[25]
7. Her Honour also noted that in the period between the first and second transport accidents, the applicant was not referred to any specialist for opinion regarding her lower back and left leg, was not prescribed any medication, and continued to work full time as a technician.[26] Her Honour found:

The attribution Ms Lovrenovich now makes of ongoing back and left leg symptoms following the first transport accident, which was only temporarily aggravated in the second and third transport accidents, is not supported by the contemporaneous evidence.[27]

1. The judge then turned to relevant extracts from the clinical records we have already summarised in relation to the second and third transport accidents, before turning to the three medico-legal practitioners.
2. The judge observed that Prof D'Urso did not mention the applicant's prior episodes of lower back pain in his report, nor did he identify what role the second and third transport accidents played in her condition, or identify the significance, if any, of there being similar findings in the imaging over time. The judge said:

Professor D'Urso did not set out his path of reasoning for his opinion as to the role of the first transport accident in Ms Lovrenovich's condition. Professor D'Urso's opinion is based on a history of persisting lower back and left leg symptoms which is contrary to my findings.[28]

1. The judge then considered Mr Grossbard's reports. The judge noted that in his first report, he did not discuss the role, if any, of the second and/or third transport accidents. In his second report, he did not discuss his opinion as to the injury or impairment, if any, arising from the second transport accident. He took the same course in his third report. In her view then:

Mr Grossbard did not sufficiently set out his path of reasoning for his opinions as to the role played by the first and third transport accidents. Mr Grossbard appears to have based his opinion on a history of pain, left-sided weakness and sciatica since the first transport accident which is contrary to the facts as I find them to be.[29]

1. Finally, the judge considered Mr Speck's reports. Her Honour found that it was not clear what information Mr Speck accepted as to the applicant's symptoms after each transport accident.[30] Further, Mr Speck did not opine as to the significance, if any, of the incident which involved prolonged bending in October 2018.[31]
2. The judge also noted that Mr Speck had recorded that the applicant gave a history of 'ongoing fluctuating symptoms'.[32] The judge highlighted that she had found the applicant's evidence as to her symptoms to be unreliable.[33] Her Honour also stated:

The most favourable reading for Ms Lovrenovich's case of Mr Speck's answer to Question 2a in his first report, is that Mr Speck was of the view that her surgery was for treatment of the injury and impairment sustained in the first transport accident. I have doubts as to whether Mr Speck was expressing that opinion, but if he was, I am unable to accept it as there is no identified path of reasoning.

That deficiency is further highlighted by the fact that Mr Speck said he did not change his opinion as a result of reading Mr Grossbard's third report, or Professor D'Urso's report, despite noting that he understood Professor D'Urso said Ms Lovrenovich's surgery was as a result of deterioration after second transport accident.[34]

1. The judge accepted that the applicant had experienced 'short-lived' low back and left leg symptoms after the first transport accident. However, she found that the contemporaneous evidence did not corroborate the applicant's account of 'continuing symptoms of significance' from the time of the first transport accident, nor did it corroborate the applicant's account that the relevant aggravations of the lumbar spine injury in the second and third transport accidents were only 'short-lived'.[35]
2. The judge did not consider that the applicant's microdiscectomy was required for the injury and impairment caused by the first transport accident. Rather, it was more likely due to the second transport accident, a combination of the second and third transport accidents, or possibly all three transport accidents.[36]
3. The judge thus concluded:

On the evidence, I am unable to be satisfied as to the nature and extent of low back and left leg symptoms Ms Lovrenovich experienced after the first transport accident and prior to the second transport accident and the extent to which those symptoms were attributable to the first transport accident. ...

Ms Lovrenovich has not discharged the onus she bears of establishing what her condition was after the first transport accident, and of establishing what impairment consequences are currently attributable to that event.[37]

1. Having not satisfied her onus to establish what impairment consequences were attributable to the first transport accident, as distinct from the second and third transport accidents, the judge dismissed the application.[38]

1. In relation to proposed ground one, the applicant submitted that the judge's finding about reliability at [55] was a central reason why she rejected the evidence of Mr Grossbard, Prof D'Urso and Mr Speck. However, none of those doctors provided opinions that were predicated on the applicant having experienced the sort of symptoms the judge described at [55(a)].
2. The applicant submitted that, given that none of those three doctors gave opinions which were predicated on a history of symptoms of the character of what is recorded at [55(a)], the judge was therefore wrong to use her evaluation of the reliability of the applicant's evidence at [55(a)] as providing a basis to reject the opinions of those doctors.
3. In oral submissions counsel highlighted that the finding of the judge concerned the unreliability of the applicant's evidence and did not concern her honesty, which was significant and indicated that the histories provided to the medical practitioners should be accepted by the Court.
4. In relation to proposed ground two, the applicant submitted that there was no medical evidence that the matters set out at [55(a)] demonstrated inconsistency as found by the judge. That is, no medical witness gave evidence that the matters identified by the judge cast doubt over the applicant's account.
5. The applicant focused attention on Mr Speck who had clearly been provided with a significant amount of clinical records. His report indicated that he actively considered some of the matters cited by the judge at [55(a)], but said nothing to indicate that those matters could give rise to inconsistency between the applicant's account of symptoms, and that the first transport accident was a cause of her need for spinal surgery. In particular, the applicant noted that:

(a) such records enabled Mr Speck to ascertain the frequency with which the applicant attended her general practitioner. In fact, he expressly noted that, after her attendance on 29 May 2018, the next attendance was some 5 months later;

(b) Mr Speck was able to ascertain the extent to which the general practitioner ordered prescriptions in respect of the applicant's lower back and leg symptoms; and

(c) Mr Speck was able to ascertain the extent to which the general practitioner records recorded subsequent injuries (which included the October 2018 injury).

1. The applicant submitted that the only way Mr Speck's consideration of the clinical records can be understood is that he did not believe they revealed any form of 'inconsistency' which was sufficient to prevent him from accepting the relevant causal connection between the first transport accident and the need for surgery.
2. The judge was therefore wrong to treat the matters at [55(a)] as constituting relevant consistency when there was no evidence to that effect, and Mr Speck's opinion was necessarily inconsistent with that approach.
3. In oral submissions counsel contended that any inconsistency was in the province of a medical expert and that the judge had strayed into the role of such an expert in concluding that there was relevant inconsistency.
4. In relation to proposed ground three, the applicant submitted that, by treating the absence of attendance upon treating practitioners after 4 July 2018 as a critical fact in relation to causal connection,[39] the judge also departed from the medical evidence that was tendered in the case.
5. Thus, none of the authors of the reports opined that the applicant's continued attendance upon treating practitioners after 4 July 2018 was a necessary precondition to causation.
6. The applicant also again focused on Mr Speck who reviewed extensive records, but did not conclude that the infrequent attendances after 4 July 2018 were a reason to conclude that the first transport accident did not cause the need for surgery. To the contrary, the only sensible way to read his answers was that he considered that the need for spinal surgery was caused by the first transport accident. This was important given he reached his opinion despite knowing about the infrequent attendances, and in circumstances where he had expressly acknowledged that most patients recover 'spontaneously'.

1. There was no dispute that on an appeal from a serious injury application brought pursuant to the Act the applicable standard of review is the 'correctness standard' as explained by the High Court in Warren v Coombes.[40] In such a case, the duty of the appellate court is to decide the case - the facts as well as the law - for itself. However, as this Court also stated in Juma v Kone Elevators Pty Ltd:

even on a review conducted on the correctness standard, where a finding is likely to have been affected by impressions about the credibility and reliability of witnesses formed by the judge as a result of seeing and hearing them give their evidence, that finding should not be interfered with unless it is 'glaringly improbable' or 'contrary to compelling inferences'. In respect of other findings, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts'.[41]

1. In this case the judge needed to be satisfied that the injury the applicant relied upon was caused by the first transport accident.[42] This presented challenges given there were two subsequent transport accidents of some significance, as well as the October 2018 incident.
2. Ultimately, the judge was simply not satisfied that the impairment consequences the applicant relied upon were attributable to the first transport accident. This followed from her critical finding about the unreliability of the applicant's evidence, which led to her rejection of the applicant's account of 'continuing symptoms of significance' from the time of the first transport accident.
3. No proposed ground of appeal alleged that the judge's critical findings on reliability were made in error. There was certainly no suggestion that any such findings were 'glaringly improbable' or 'contrary to compelling inferences'. This is important since the judge's findings as to the applicant's reliability also had impact on whether the medical opinions were to be accepted. Thus, in Rowe v Transport Accident Commission, this Court stated:

As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff's proceeding. Additionally, in such cases, the opinions of medical and allied health professions (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff's account. Put bluntly, the opinion of any particular expert opinion in a case like the present is only as good as the underlying history upon which it is based.[43]

1. Two other matters of principle are important. First, it was a question for the judge to determine whether she accepted the reliability of the applicant's evidence. This was not a question to be delegated to an individual medical practitioner, nor was her Honour required to defer to the opinion of any medical practitioner.[44] Second, the matters that the applicant had to establish were to be resolved upon all of the evidence before the court, not just on the medical evidence. Put another way, the application was not a 'trial by doctors' opinions'.[45]
2. With these principles in mind, we turn to the individual grounds.
3. In relation to proposed ground one, it is important to correctly understand the reasons of the judge. The judge found that the evidence the applicant gave about her pain between the first and second transport accidents was inconsistent with a number of other objective factors (cited at [55(a)]). That evidence (as detailed above) was that she had 'incredibly uncomfortable' back pain and 'severe' sciatic pain down her left leg, like 'burning, stabbing pain'. The judge ultimately concluded that the applicant's evidence was not reliable when this inconsistency was considered,[46] together with a wide range of other matters.[47]
4. We accept that the judge did not make a finding that the applicant was a dishonest witness. However, her finding of unreliability was critical since it meant that the judge focused on other objective evidence to determine the course of the applicant's symptoms. In so doing she ultimately found that the contemporaneous evidence did not corroborate the applicant's account of 'continuing symptoms of significance' from the time of the first transport accident, and concluded that the applicant only experienced 'short-lived' low back and left leg symptoms after that accident.[48]
5. When the judge's reasons are understood in this way, proposed ground one cannot succeed.
6. Thus, the judge did not use the precise character of symptoms described at [55(a)] as a 'basis' to reject the opinions of the doctors. Instead, she rejected the evidence of the doctors (partly) because each relied upon an underlying history of persisting and ongoing symptoms after the first transport accident which conflicted with her own finding (to the effect that there were not 'continuing symptoms of significance' after that accident).[49]
7. The judge was also correct in considering that each of the three doctors did base their opinions on ongoing, continuing symptoms from the time of the first transport accident, notwithstanding some fluctuation. Hence:

(a) Mr Grossbard noted complaints of 'increasing low back pain and pain in the left leg' which 'did not improve' after the first transport accident. In fact, her leg was 'becoming weaker'. Although he referred to some 'gradual improvement', this was consistent with the existence of ongoing pain up until the time of the second transport accident;

(b) Prof D'Urso recorded that the applicant developed back pain, left side sciatic symptoms and weakness of her left knee at the time of the first transport accident; that she was 'never quite the same following this accident'; and that she suffered a degree of 'persisting' back and left sided sciatic symptoms;

(c) Mr Speck recorded that the applicant's pain 'continued' in the left lower back area after the first transport accident. Further, that her symptoms in the left leg commenced within 2 months of that accident and were 'regularly there'.

1. Given the expert opinions were thereby heavily dependent on an acceptance of an account which had been rejected by the judge, the judge was well entitled to reject those opinions.
2. It is unnecessary to go further. However, we agree with the respondent that the judge also gave other reasons for rejecting the relevant opinions. Those reasons included that Mr Speck failed to deal with the applicant's symptoms after each transport accident and the significance of the October 2018 incident;[50] that Mr Grossbard failed to deal with the second and third transport accidents in his first report, and with the second transport accident in his second and third reports;[51] and that Prof D'Urso failed to appropriately deal with the role of the second and third transport accidents.[52]
3. In other words, the judge found that the three doctors did not sufficiently identify their path of reasoning in arriving at causation, having regard to the other transport accidents, as well as the October 2018 incident.
4. The applicant has not sought to challenge the judge's reasoning in this respect, which was clearly sound.
5. The applicant has thereby failed to establish that the judge erred in rejecting the opinions of Mr Grossbard, Prof D'Urso and Mr Speck. More particularly, the judge was well entitled to use her evaluation of the reliability of the applicant's evidence as part of her reasons to reject that evidence.
6. Proposed ground one must therefore fail.
7. Proposed grounds two and three will be considered together given the applicant's pattern of attendances (the subject of proposed ground three) was one of the matters cited in [55(a)] (the subject of proposed ground two).
8. These grounds are also without merit for two reasons.
9. First, they are flawed insofar as they suggest that the judge reached her conclusions as to reliability solely by reference to the applicant's pattern of attendances, treatment, medication and specialist referral which might be the subject of clinical records considered by doctors. Instead, the judge also expressly had regard to the applicant's participation in a cycling trip in [55(a)(v)], as well as her application to join the police force in [55(c)]. She also made reference to a number of other relevant matters,[53] which focused on the applicant's presentation in the witness box which the judge was uniquely able to assess.
10. Second, and more critically, the judge was entitled to consider and reject the applicant's evidence (in part) by reference to her pattern of attendances and treatment, even if the doctors did not do so. She was also entitled to do so even if the doctors had full access to all relevant clinical records (which they did not).[54] This is because, for reasons already explained, the judge was not obliged, or even entitled, to delegate her function to the medical practitioners.
11. The gravamen of the applicant's challenge was that the judge was required to adopt the findings of causation made by the three doctors. However the judge was required to make her own findings as to that causal link having regard to all the evidence. In the result, the judge rejected the conclusions of each of those doctors given, in particular, that she rejected the underlying history upon which each was based.
12. In circumstances where the judge's conclusions turned critically on an assessment about the reliability of the applicant's evidence formed as a result of seeing and hearing her give her evidence, no error has been demonstrated. The application cannot succeed.

[1] At trial, the applicant initially also relied on para (c) of the definition of serious injury in s 93(17), but ultimately advanced a case under para (a) only.

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

[3] Lovrenovich v Transport Accident Commission [2025] VCC 4 ('Reasons').

[8] The applicant initially relied on a psychiatric report of Dr Gregor Schutz dated 18 November 2022 and a psychiatric report of Dr Justin Lewis dated 3 June 2024, but did not ultimately rely on or tender those reports at trial.

[9] Though Mr Speck's reports were tendered by the applicant at trial.

[10] Reasons, [55] (citations omitted).

[40] [1979] HCA 9; (1979) 142 CLR 531, 551-3 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9; Connelly v Transport Accident Commission [2024] VSCA 20, [32]-[40] (Beach, Niall JJA and J Forrest AJA).

[41] [2024] VSCA 217, [55] (Orr, Kaye JJA and J Forrest AJA), citing Lee v Lee [2019] HCA 28; (2019) 266 CLR 129, 148-9 [55] (Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28.

[42] Transport Accident Commission v Murdoch (2020) 92 MVR 1, 23 [107] (Beach, Hargrave and T Forrest JJA); [2020] VSCA 98.

[43] [2017] VSCA 377, [89] (Osborn, Priest and Beach JJA) (citations omitted).

[44] Papamanos v Commonwealth Bank of Australia [2014] VSCA 167, [36] (Hansen, Beach JJA and Garde AJA).

[45] Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605, 610 [17] (Ashley JA, Neave JA agreeing at 635 [168], Pagone AJA agreeing at 636 [172]); [2008] VSCA 167, quoting Grech v Orica Australia Pty Ltd [2006] VSCA 172; (2006) 14 VR 602, 611 [35] (Ashley JA, Buchanan JA agreeing at 604 [1], Chernov JA agreeing at 604 [2]); [2006] VSCA 172.

[49] See, eg, ibid [176], [177], [180].

[54] Although the material filed subsequent to the hearing indicates that the three doctors received a large number of clinical records, there were some omissions. For example, none had the Benalla Chiropractic Centre records which concerned attendances after the first transport accident as cited by the judge at Reasons, [55(a)(iii)].