1. The Tribunal Book contains evidence about the transport accident and ambulance and hospital records made on the day of the accident. There are also records relating to consultations Mr Strojek has had with various health practitioners over the years, especially GPs at Skye Medical Centre and Baxter Medical and Dental Centre (where Dr Singh went to work after he left Skye Medical Centre). There are certificates of incapacity that were given after some of those consultations. Mr Strojek has also consulted practitioners including a chiropractor, a physiotherapist and Mr Nizam. He has attended hospital Emergency Departments for separate reasons. Mr Strojek has also seen doctors who have written medico-legal reports.
2. The Tribunal Book further contains material about Mr Strojek's TAC claims history; relevant employment history; and information about his scaffolding business. (At the time of the transport accident, Mr Strojek was employed as a scaffolder by someone else).
3. There was a hearing before me over five days in June and July 2022. Mr Strojek gave oral evidence and was cross-examined. The following medical practitioners gave oral evidence and were cross-examined: Dr Singh (GP), Sherry Xue (GP), and Associate Professor Bruce Love (orthopaedic surgeon), for Mr Strojek; and Dr Anthony Menz (consultant orthopaedic surgeon) for the TAC.
4. Mr Madder, counsel for Mr Strojek, and Ms Clark, counsel for the TAC made written and oral submissions.

1. The Tribunal Book includes a completed 'Claim for Compensation Summary' form. The lodgement date was 6 April 2016, the day after the transport accident.
2. Mr Strojek gave evidence that he is not sure whether he completed the form or someone completed it on his behalf.
3. In a section headed 'Injury Details', pelvis pain, neck pain, spine injury, injury 'of ribs' (sic) and backache are listed. In a section headed 'Previous Injuries Or Conditions Details', asthma and gout are listed.

The transport accident and Mr Strojek's immediate medical treatment

1. The transport accident occurred at about 3 pm on Tuesday 5 April 2016.
2. Mr Strojek was driving a work utility. He was stationary at traffic lights in the right-hand lane on the Dandenong Bypass. He heard screeches and saw a car coming quickly from behind. The estimated speed of the car was 80 kph. The car struck a stationary car in the next lane (on Mr Strojek's left) and forced that second car into the passenger side of the utility, on an angle, from behind.
3. Mr Strojek got himself out of the utility. Not long afterwards he was taken by ambulance to Dandenong Hospital Emergency Department.
4. According to notes made by attending ambulance officers, the impact occurred as Mr Strojek was twisting to his left to see what was happening. He felt immediate muscle strain to his right lower back. He did not suffer any head strike or loss of consciousness. On examination, he was able to weight bear. He had 'sharp' pain though he denied it was radiating.[2] He complained of sharp pain to the right flank/lower back that he felt immediately due to him twisting. He also complained of a sharp sting to the ribs on the left side on coughing or breathing deeply. He denied midline/cervical tenderness or pain to any other body region. Mr Strojek was assessed as having 'back pain; muscular/soft tissue pain'.
5. The hospital discharge summary indicates that Mr Strojek was given a provisional diagnosis of 'minor trauma'. After X-rays were taken, he was given a diagnosis of 'injury to muscle/tendon of thorax'. He was given pain killers. Within about four hours after he arrived at the hospital, Mr Strojek was discharged home, to be followed up by his GP.

1. The health practitioners' evidence includes notes and letters by Dr Singh, Dr Xue and other GPs; reports and letters by Mr Nizam and other treating practitioners, especially Dr Joe Cho, chiropractor, and Mr Greg Dea, physiotherapist; and medico-legal reports by Dr Menz.
2. For convenience, I refer to Mr Nizam's reports next and refer to Dr Menz's reports towards the end of these reasons. I refer further to these reports and to reports by other practitioners in the context of the parties' submissions and my consideration of the evidence and submissions.

1. On 5 July 2018 Mr Nizam made a report for Dr Singh. In particular, Mr Nizam noted that in the transport accident Mr Strojek felt his car jolt and he had to get up out of the car and 'he immediately felt pain in the lower back and right and left hips at the time'. Mr Nizam further noted that there was no evidence of any fractures, but Mr Strojek continued to have right hip pain more than the left hip pain since the accident. The pain progressively got worse, although most of the treatment was focussed on the lower back symptoms. The main issues (at the time of the report) were pain in the right hip which was greater than the left hip. MRI scans revealed a labral tear with cam lesion and possible pincer lesion in the acetabulum.
2. In a report to Mr Strojek's lawyers, dated 18 April 2019, Mr Nizam recorded the history in essentially the same terms as he did in the 5 July 2018 report. He said that the current diagnosis was bilateral labral tears with cam lesions. Mr Nizam said that the labral tears with symptoms had not been present, at least clinically, before the transport accident. He said that it was 'possible and likely that the impact of a car from the side could have caused [Mr Strojek's] injury'. He added that even if Mr Strojek had any pre-existing condition, this event could have aggravated the conditions in both hips. He said that '[s]ince [Mr Strojek] felt pain immediately after the accident in both of his hips, it is more likely that the injury happened at the time of the accident itself'.
3. Mr Nizam made a further report to Mr Strojek's lawyers, dated 18 February 2020. He noted that he had not seen Mr Strojek since 5 July 2018. Mr Nizam commented on reports by other practitioners (Dr Menz and Dr Chris Baker).[3] He highlighted that in forming his opinion he had actually viewed the MRI images (rather than just rely on the MRI report). Mr Nizam said that he suspected that the transport accident 'in itself' probably caused the hip injury which was noticed only subsequently, as Mr Strojek was asymptomatic before the injury and he did not sustain any other (relevant) injuries after the accident.

1. Mr Madder submitted that there is a probable connection between Mr Strojek's right hip condition and the transport accident.
2. It is convenient to summarise Mr Strojek's case - that the transport accident was the cause, or a cause, of his right hip condition, or of an aggravation of his right hip condition - by referring to Mr Madder's outline of closing submissions.
3. Mr Madder made special mention of Mr Nizam's opinion. First, he noted Mr Nizam's expertise as an orthopaedic surgeon who specialises in joint reconstruction, sports injuries and trauma, and the fact that Mr Nizam undertakes bikini anterior hip and knee surgery, and hip arthroscopy.
4. Mr Madder referred Mr Nizam's reports. He said that each of the reports is to the effect that Mr Nizam is of the opinion that the transport accident probably caused an injury to Mr Strojek's right hip and that, to the extent that Mr Strojek may have had any pre-existing condition, the transport accident could have aggravated the condition. Mr Nizam considers that without treatment, Mr Strojek may develop osteoarthritis, which can in turn lead to the need for a hip replacement.
5. Mr Madder noted that Mr Nizam was not required for cross-examination.
6. Mr Madder referred to contemporaneous evidence, including the following:
   • The notes that ambulance officers made at or about the time of the transport accident, in particular that Mr Strojek complained of 'sharp/straining pain to [his right] flank/lower back felt immediately after impact due to [him] twisting ...' to see what was happening
   • The indication given by Mr Strojek in re-examination that he experienced pain immediately after the accident in his right lower back going down, pointing to his right buttock
   • The claim form where the injury details recorded were: 'pelvis pain, neck pain, spine injury, injury [to] ribs, backache'
   • Mr Strojek's visit to his GP (Dr Singh) on 6 April 2016 (the day after the accident) when he complained of pain, and a CT scan was requested of his abdomen because Mr Strojek was complaining of right sided abdominal pains
   • Mr Strojek's visit to Dr Christie Huang (a GP at Skye Medical Centre) on 8 April 2016 when he complained of pain in his neck, lower back, and left hip, after which an x-ray was undertaken of his left hip.
7. Mr Madder made submissions addressing the position apparently taken by the TAC - that because Mr Strojek made complaints of pain to the left hip on 8 April 2016, and because an x-ray was done of the left hip, Mr Strojek made no complaints about his right hip. Mr Madder noted in any event that the history taken by Mr Nizam was that Mr Strojek 'immediately felt pain in the lower back and the right and left hips'. Mr Madder submitted that the history was consistent with the contemporaneous documents and Mr Strojek's recollection.
8. There was further evidence, both prior to and after the time of the transport accident, that Mr Madder mentioned in the outline of closing submissions.
9. In the fortnight immediately before the accident, Mr Strojek saw his GP and complained of pains in his left lower back. He was diagnosed with mild broad-based scoliosis of the thoracic spine and mild scoliosis at the proximal lumbar spine. Mr Madder submitted that while Mr Strojek may have aggravated this condition in the accident, there was no medical evidence to suggest that this condition alone related to his complaints of pain concerning his pelvis and right lower back immediately after the accident.
10. Mr Madder went on to note opinions expressed by Mr Nizam and other witnesses. In the report dated 18 April 2019 Mr Nizam said:

The current diagnosis for Tony is bilateral labral tears with cam lesions. These labral tears with symptoms were not present, at least clinically, before the accident happened. It is possible and indeed likely that the impact of a car from the side could have caused his injury. Even if he had any pre-existing condition, this could have aggravated the condition in both hips. Since he felt pain immediately after the accident in both hips, it is more likely that the injury happened at the time of the accident itself.

1. And in his report of 18 February 2020 Mr Nizam said:

I suspect that the road traffic accident itself probably caused the hip injury which was only noticed subsequently, as he was asymptomatic before this injury and did not have any other injuries after the road traffic accident.

1. Associate Professor Love made a report dated 30 March 2020. He diagnosed a soft tissue injury of the lumbar spine of chronic type and a probable mild aggravation of an intra-articular abnormality of the right hip. Associate Professor Love stated:

It might reasonably be accepted that the mechanism/impact of the accident described by Mr Strojek has resulted in the symptoms in the lower back and right hip that have been experienced. I have not been able to separate the origin of pain in the lower back from the origin of pain in the right hip.

1. Orthopaedic surgeon Mr Thomas Kossmann said in a report dated 10 May 2022 (addressed to Mr Strojek's lawyers):

Mr Strojek was injured in a transport accident on 5 April 2016 and he suffered from injuries to his lumbar spine and his right hip joint. He has been diagnosed with lumbar spondylosis and suffers meanwhile on advancing osteoarthritis of his right hip on the background of a CAM lesion and labral tear in his right hip. He has been treated conservatively. A proposed hip arthroscopy of his right hip has not been approved by the TAC ...

Mr Strojek suffers from a CAM type femoroacetablular impingement anatomy with a labral tear of his right hip. Without further treatment his right hip condition will deteriorate most likely rapidly. [...] I recommend a trial with PRP (Platelet Rich Plasma) injections. I believe that he may require surgical intervention(s), initially in the form of a hip arthroscopy. In the long term Mr Strojek will most likely develop sever (sic) osteoarthritis in his right hip, for which he may require a total hip replacement at some time. I recommend referral to an orthopaedic surgeon specialising in hip pathologies.[4]

1. Mr Madder then referred to a report by consultant occupational physician Dr Ben Cheesman dated 2 August 2019. Dr Cheesman had been asked (by Mr Strojek's lawyers) whether Mr Strojek was continuously absent from engaging in his usual occupation as a scaffolder 'solely as a result of his injuries of 5 April 2016'. In this context, Dr Cheesman stated:

It appears the accident on 5 April 2016 was the trigger for him disengaging from work as a scaffolder ...

Subsequently he has had increased symptoms and currently his problems appeared to principally be related to his right hip. There was restricted range of movement and possibility of a labral tear it is possible could be related to trauma although such damage can occur gradually and some individuals are predisposed to this due to the hip shape. He was noted to have a Cam lesion (an anomaly of the femoral head shape). If further comment on this was required, orthopaedic opinion could be considered.

1. Mr Madder said that 'Dr Cheesman's reservations' (about causation) 'are understandable given that he was asked whether Mr Strojek ceased work solely as a result of the injuries he sustained in the car accident'.
2. Mr Madder then referred to the opinions given by Dr Menz. (As indicated earlier, I will deal with Dr Menz's evidence separately later in these reasons. But I mention now that Dr Menz made one of his reports (the second one) after he viewed video surveillance and related material that happened to involve not Mr Strojek but another man).
3. There was evidence about Mr Strojek's condition and his experience of pain after the accident that Mr Madder noted.
4. Mr Strojek continued to receive treatment from a chiropractor and physiotherapist in the months after the accident. By 28 July 2017 Mr Strojek was complaining to his GP (Dr Xue) of 'over 1 year of lower back pain and stiff sometimes radiating to right foot'.[5] In September 2017 Mr Strojek was complaining of pain radiating to the back of his right thigh. He also reported pain down his right thigh on 5 June 2018.
5. Dr Xue gave evidence that she considered that Mr Strojek's condition was a pre-existing condition that got worse.
6. Mr Madder submitted that it was hardly surprising then that Mr Strojek consulted sports physiotherapist Mr Greg Dea on around 20 June 2018. Mr Strojek gave evidence about that as follows:

And how did it come about that you saw a Mr Greg Dea?---I honestly got over two years of being in constant pain and nothing getting better that my mate, who's a myotherapist, said his kind of teacher that taught him was down and he's been doing it for 40 years and he's amazing, and I was just sick of complaining of being in so much pain and just like something was not right, and I went and seen him, and then within 30 minutes he told me what was wrong. That was in mid-2018; is that right?---That's correct. And what did he say was wrong?---He examined me and said that it was my hip the whole time causing all my back pain, everything. It was just my right hip. The first person out of how many years of - TAC sent me to everyone else, and he found it within 30 minutes.[6]

1. Mr Dea wrote to Dr Xue on 20 June 2018. He noted that Mr Strojek reported lower back pain which appeared to 'start deep anterolateral hip, radiating posteriorly around to the back'. He said that Mr Strojek also reported 'lateral thigh vibrations' and said that was 'not an uncommon description for active muscle trigger points.' He remarked that 'hip joint derangements can refer pain to the lower back'. Mr Dea noted that Mr Strojek 'had significant atrophy of his hip musculature, including gluteal muscles'.[7]
2. Mr Strojek had an MRI in June 2018. The MRI report (dated 27 June 2018) indicated a labral tear. Mr Strojek was then referred to Mr Nizam, who consequently wrote the report for Dr Singh dated 5 July 2018. Mr Strojek then saw Dr Singh. He later saw Dr Xue - on 18 July 2018.[8] Dr Xue's notes recorded that Mr Strojek by then considered that the pain in his lower back pain and left hip was due to right hip problems. Mr Madder submitted that that was consistent with Mr Strojek's evidence.
3. Mr Madder submitted that having regard to these matters, the Tribunal can readily conclude that there is a probable connection between Mr Strojek's right hip condition and the transport accident. He said that it may be accepted that Mr Strojek may have had a pre-existing cam deformity and may even have had a pre-existing labral tear. But even assuming that Mr Strojek had a cam lesion many years prior to the accident, he had no pain in the pelvis or right lower back region prior to the accident yet he experienced pain in his pelvis, right buttock and left hip immediately following the accident and he developed worsening pain in his right hip over the following months.
4. Mr Madder submitted that the opinion of Mr Nizam, in particular, ought to be accepted.
5. Mr Madder submitted, further - 'and critically' - that there is no evidence that any incident subsequent to the transport accident caused Mr Strojek to suffer his present hip condition.
6. Mr Madder made submissions concerning the cross-examination of Mr Strojek and some other matters that I refer to later.

1. In summary, Ms Clark argued in her closing submissions that no inference can be drawn that there is a probable connection between the transport accident and Mr Strojek's right hip condition for the following reasons:
   • Mr Strojek was an unreliable witness who sought to downplay the consequences of his pre-existing back injury and exaggerate the consequences of the transport accident for the purposes of this proceeding
   • the ambulance notes and the hospital notes make no mention of right hip pain
   • despite Mr Strojek attending a number of different health practitioners between the date of the transport accident and June 2018, the contemporaneous notes make no mention of right hip pain
   • Mr Strojek had a cam lesion in his right hip prior to the transport accident, which was likely to have developed during adolescence
   • the medical evidence shows an alternative explanation for Mr Strojek's right hip condition: that he has a cam deformity which developed in adolescence and the cam deformity caused a labral tear, with the onset of complaints of right hip pain beginning in approximately late May 2018, more than two years after the transport accident
   • the opinion of Dr Menz should be accepted as the correct view in respect of causation in relation to Mr Strojek's right hip condition. Whereas many medical opinions before the Tribunal are deficient insofar as they rely on an inaccurate history about the onset of right hip symptoms, Dr Menz identified that there were no complaints of right hip pain until June 2018.
2. Ms Clark cited Hills v Transport Accident Commission [2021] VCAT 1512 (Hills) where VCAT referred to the following observations by Lord Pearce on the subject of credibility in Onassis v Vergottis (Onassis) [1968] 2 Ll Rep 403 at p 431:

'Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability.[9]

1. Ms Clark pointed to a number of matters to support the submission that Mr Strojek was an unreliable witness. She submitted that Mr Strojek gave inconsistent evidence about his pre-existing back condition. (Among other things, Ms Clark drew attention to the fact that the claim form mentioned previous conditions of asthma and gout though not the back condition. She also pointed out that Mr Strojek evidently did not say anything to Dr Baker or Dr Menz about the back condition he had that pre-dated the accident).[10] Ms Clark submitted in effect that there was a conflict between Mr Strojek's evidence that he was unable to work after the accident (save for making an unsuccessful attempt to return to work on one day) and other statements he made, including statements recorded by several health practitioners. Ms Clark highlighted that the ambulance and hospital records made at or about the time of the transport accident made no mention of right hip pain.[11] She submitted that although Mr Strojek gave evidence that he complained about his right hip to doctors including Dr Xue and Dr Singh, the relevant medical notes - covering more than two years after the accident - did not record that.[12] Ms Clark noted that when the medical records were put to Mr Strojek in cross-examination, he (ultimately) conceded that he made no specific complaints about right hip pain but said he was instead 'calling it lower back pain'.[13] Ms Clark also noted observations by Dr Menz and Dr Baker that contained what she described as 'inconsistent findings' on physical examination compared with observations made on informal examination, suggestive of exaggeration by Mr Strojek of his condition.[14] Finally, Ms Clark submitted in effect that the manner in which Mr Strojek gave evidence was relevant to the assessment of his credibility. Among other things, she submitted that his evidence was tailored to his own self-serving purposes, particularly when he was challenged.
2. Ms Clark submitted that in the circumstances, the Tribunal ought to prefer the contemporaneous, documentary evidence.
3. Ms Clark made further submissions about the medical evidence that I will deal with later.

1. Section 35 of the Act relevantly provides that a person who is injured as a result of a transport accident that occurred in Victoria is entitled to compensation in accordance with the Act.
2. As defined in section 3(1), 'transport accident' relevantly means 'an incident directly caused by the driving of a motor car'. And 'injury' relevantly means physical injury. Section 3(3)(a) and (b) relevantly provide that a reference to injury in the Act is a reference to injury caused by a transport accident; and reference to a person who is injured is a reference to a person who sustains injuries that were caused by a transport accident. Section 3(c) relevantly provides in effect that a reference to injury in or as a result of or resulting from a transport accident (or to a person so injured) is a reference to an injury (or to a person who sustains injuries) directly caused by the driving of a motor vehicle.
3. Section 60 provides for compensation in the form of medical and like benefits. That includes the 'reasonable costs' of medical services and rehabilitation services received 'because of the transport accident': section 60(2)(a).
4. VCAT conveniently summarised the legal framework in Rus v Transport Accident Commission [2021] VCAT 70 (Rus) at [30]-[44]:

[30] VCAT's role when undertaking a review under s 77 of the Transport Accident Act 1986 (the Act) and s 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is to make the correct or preferable decision on the application exercising all of the TAC's functions.

[31] The Tribunal may take into account evidence before the decision-maker at the time the original decision was made as well as additional evidence provided by the parties ...

[33] The questions for me to consider are:

• Is the [relevant condition] an injury 'caused by a transport accident' (s 3(3) of the Act)?
• Did [the applicant] suffer the ... injury as a result of a transport accident (s 35(1) of the Act)?
• Is the TAC liable to pay the reasonable costs of medical services for the [injury or condition] (s 60(2)(a) of the Act)?

"injury", except in Part 10, means physical or mental injury and includes nervous shock suffered by a person who was directly involved in the transport accident or who witnessed the transport accident or the immediate aftermath of the transport accident...

[35] What is required is that the injury be 'directly caused by' the transport accident. This test of causation was explained by Ashley J in Gennimatas v TAC [2002] VSC 552 (Gennimatas) at [45]:

In the end, the authorities are not at odds with my conclusion that it is sufficient that a transport accident be a cause of injury as determined by the application of common law principle; and that the incapacitating consequences of injury are to be similarly determined. Those conclusions are entirely compatible with the proposition that it is injury caused by the transport accident which is to be compensated, and the impairment caused thereby which to be determined. [underline added]

[36] An injury may have concurrent causes. The transport accident does not need to be the sole cause of the injury.

[37] The standard of proof for determining causation was described in Rzanovski v Transport Accident Commission [2005] VCAT 652 (Rzanovski) at [38]:

... the question now to be answered is whether the evidence before the Tribunal is such as to justify an inference of probable connection between the transport accident and the [condition]. [underline added]

[38] Neither party bears a burden of proof. The approach to be taken in weighing up the evidence of causation was described in Golem v Transport Accident Commission [2002] VCAT 319 (Golem), in which it was held that:

What is required of the Tribunal, placing itself in the shoes of the decision maker, is a state of satisfaction that the decision at which it arrives is the correct decision on the basis of all material before it... the bottom line is that the authorities establish that, in proceedings such as this before a Tribunal such as this and pursuant to legislation such as the Victorian Civil & Administrative Tribunal Act 1998, no burden or onus of proof in the curial sense exists.

[39] In Sahin v Transport Accident Commission [2018] VCAT 1418 [(Sahin)] at [25], it was observed, referring to Rzanovski:

That state of satisfaction may be reached where the evidence before the Tribunal is such as to justify an inference of a probable connection between the transport accident and the condition. Any inference must be based on facts established by admissible evidence. The process of reasoning must constitute a valid inference as distinct from speculation or guesswork. The totality of the evidence may be considered together in order to ascertain the weight of the evidence as a whole.

[40] In [Mennen v Transport Accident Commission [2016] VCAT 927 (Mennen)], the approach to be taken in assessing whether there is a sufficient link between the injury and the transport accident where the evidence is either wholly or almost wholly inferential was described at [56] and [57]:

There are occasions where a finding that an accident was a cause of a medical condition is largely based on a hypothesis that the accident was the only potential cause of the medical condition, all other possibilities having being [sic] excluded.

However, this tends to be the situation where a sufficient combination of the following applies:

1. It appears the condition as existing at the time of the VCAT proceeding did not exist before the accident;
2. The applicant's evidence assists and is completely or largely accepted;
3. The medical evidence surrounding the accident allows for the possibility that the accident was a cause of the condition;
4. The medical evidence, as months and perhaps years pass since the accident, at least does not contradict reported symptoms;
5. There is a reasonable explanation for any lack of reporting to medical practitioners after the accident; and
6. The possibility that the injury occurred after the accident can be excluded.

[41] I observe that the approach described in Mennen does not require all the above factors to apply, rather that there be a sufficient combination of them. > > [42] The TAC submitted, relying on Fox v Percy, [(2003) 214 CLR 118, [2003] HCA 22] that where a witness's testimony is shown to be unreliable or is rejected for reasons of credit then a claim as to injury must fail unless there is incontrovertible, objective evidence which supports a finding that the injury occurred in the way asserted by the injured party. > > [43] Fox v Percy concerned a factual contest between the parties: inconsistent assertions by Ms Fox, who was riding a horse, and Ms Percy, who was driving a Kombi van which collided with the horse, as to who was on the correct side of the road. The trial judge accepted Ms Fox's evidence despite incontrovertible objective evidence (the location of skid marks) that the Kombi was on the correct side of the road ... > > [44] The TAC submissions also referred to Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 which concerned the weight to be given to an expert medical opinion which is wholly reliant on the factual assumptions contained in the history provided by the witness. As observed in Ramsay v Watson at 649:

if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone.

1. Mr Strojek contends that the transport accident was the cause, or a cause, of his right hip condition, or of an aggravation of his right hip condition.
2. The main question for consideration is whether the evidence is such to justify an inference of probable connection between the transport accident and Mr Strojek's right hip condition.
3. I have concluded that the evidence is not such to justify that inference.
4. There are general considerations that I will discuss. I will then summarise my conclusion and elaborate on key points. I will then refer in more detail to Dr Menz's evidence. Finally, I will comment on the evidence about whether the proposed surgery would be a reasonable medical expense.

1. Although the evidence in this case went beyond the medical evidence, the central contest was between the opinions expressed especially by Mr Nizam, on the one hand, and by Dr Menz, on the other hand. Both Mr Nizam and Dr Menz are orthopaedic surgeons who have relevant experience in hip surgery.
2. Ms Clark made the point that there was no 'crash reconstruction expert' evidence or the like that was put forward relevant to the mechanics of the collision and its impact on Mr Strojek's body, especially his right hip. Nevertheless, Mr Nizam said it was 'possible and likely that the impact of a car from the side could have caused [Mr Strojek's] injury'. Associate Professor Love said that it might reasonably be accepted that 'the mechanism/impact of the accident described by Mr Strojek has resulted in the symptoms in the lower back and right hip that have been experienced'. And Dr Menz acknowledged that twisting of the hip joints would certainly aggravate the problems for someone with a labral tear; that in a car accident the body would be jolted and that could include the hip joints; and that this could make a labral tear worse.
3. Mr Madder submitted that Mr Nizam's conclusion that the transport accident probably caused right hip injury was not challenged. It is so that Mr Nizam was not required for cross-examination, but the TAC did challenge the claim that was fundamental to his conclusion: that Mr Strojek 'immediately felt pain in the lower back and right and left hips'. The challenge was made on the basis that Mr Strojek was an unreliable witness, and that the contemporaneous notes - which, in particular, for two years or thereabouts after the accident, contained no record of a complaint about pain in the right hip - were to be preferred. It was on this basis that Ms Clark submitted that Dr Menz's opinion should ultimately be preferred.
4. I bear in mind that Dr Menz acknowledged that a labral tear is a difficult diagnosis to make outside the speciality of a hip surgeon. But, on the evidence before me, the reason the right labral tear was not diagnosed by any health practitioner until about two years after the accident was that Mr Strojek did not make any complaint about his right hip. When I say that Mr Strojek did not make any complaint about his right hip until 2018, I mean that he did not make any complaint specifically about his right hip and he did not make any complaint (whether in mentioning his lower back, pelvis or abdomen, for instance, or by pointing to a relevant part of his body) that indicated to anyone (including the ambulance officers at the accident scene) that he felt pain in his right hip.
5. It is important to note in this context that, as Ms Clark submitted, the records make clear that Mr Strojek is someone who attends his doctors frequently and who is prepared to do so if he has any medical condition that is causing him concern. It is also important to note that at one point in cross-examination Mr Strojek acknowledged to Ms Clark that he knows where his hip is and that if he were having pain going into his hip, he would have told the doctors. (What Mr Strojek went on to say is also important: see further below). It is significant that Mr Strojek made a specific complaint about his left hip to Dr Huang in April 2016. And he made a specific complaint about his right hip to Mr Dea in June 2018.
6. I mention here that although Mr Strojek said that Mr Dea told him in June 2018 that his right hip was causing all the pain to his lower back and was making his body 'out of whack', Mr Dea made no comment in his report about any connection between the transport accident and Mr Strojek's right hip condition. This does not seem surprising, for Mr Strojek reportedly told Mr Dea that his right hip pain was 'of an unknown onset', upon waking about a one month before the date of the consultation.

1. I have concluded that the evidence before me is not such to justify an inference of probable connection between the transport accident and Mr Strojek's right hip condition.
2. The opinion expressed by Mr Nizam (among other medical practitioners), which was favourable to Mr Strojek, was based on a history given by Mr Strojek that immediately after the transport accident he felt pain in the lower back and right and left hips. The contrary opinion, expressed by Dr Menz, was based not on that history but, rather, on the contemporaneous clinical notes.
3. I came to the view that Mr Strojek was not a reliable witness in relation to when it was that he first experienced right hip pain. I consider that the evidence in the contemporaneous records is to be preferred to his evidence on the point. The case for Mr Strojek however is to the effect that even if he did not specifically mention problems with his right hip to anyone prior to mid-2018, when he earlier spoke of pelvis pain, abdominal pain or lower back pain, for instance, he was really referring to right hip pain. I do not accept that. The problem is not just that the notes (up until mid-2018) do not record any complaint of right hip pain. There is also no indication that the ambulance officers or doctors were told about anything that prompted them to investigate a possible right hip condition, as might have been the case if, say, Mr Strojek had complained of right groin pain or if he had pointed to his right buttock as a site of pain. As I have mentioned, Mr Strojek evidently had no difficulty telling Dr Huang specifically about left hip pain in April 2016. (In the same month he reportedly told Dr Cho about 'left groin pain').[15] Mr Strojek evidently had no difficulty telling Mr Dea specifically about right hip pain in mid-2018.

1. I say more now about the basis on which the competing medical opinions were formed.
2. I have noted Ms Clark's submission that whereas many medical opinions before the Tribunal are deficient insofar as they rely on an inaccurate history about the onset of right hip symptoms, Dr Menz observed that there were no complaints of right hip pain until June 2018. Ms Clark developed her submission with reference to the evidence especially of Mr Nizam, Associate Professor Love, Dr Singh and Dr Xue.
3. Ms Clark noted that Mr Nizam saw Mr Strojek only once, in mid-2018. Mr Nizam was given a history that included the information that after the transport accident Mr Strojek immediately felt pain in the lower back and right and let hips. Mr Nizam's opinion was founded on the basis of 'an immediate onset of right hip pain'. That was not supported by contemporaneous clinical records.[16]
4. Among other things, Ms Clark pointed out that Associate Professor Love accepted under cross-examination that in forming his opinion that the transport accident aggravated Mr Strojek's right hip condition he was relying on a history of Mr Strojek having right hip symptoms continuing for four years after the accident up until the time he medically assessed Mr Strojek. In oral evidence, however, he agreed that if the Tribunal made a finding that Mr Strojek first complained of right hip pain in June 2018, it would make it difficult to link the right hip pain to the accident.[17]
5. I mention, incidentally, that Associate Professor Love said in his report dated 30 March 2020 (quoted earlier) that he had not been able to separate the origin of pain in the lower back from the origin of pain in the right hip. Mr Madder submitted that that statement did not affect the diagnosis. While that may be so, Ms Clark pointed out that Associate Professor Love agreed when she put it to him that his statement was based on the history (as he understood it) that both the back and (right) hip became symptomatic at the time of the accident.[18]
6. Mr Strojek gave evidence that the pain he currently has in and around his right hip began when he was involved in the transport accident. The contemporaneous ambulance and hospital records do not support that. Mr Strojek visited his doctors in the days immediately following the accident. Mr Strojek ultimately conceded that he made no specific complaints about right hip pain to his doctors before he saw Mr Dea about two years after the accident, saying that (in the meantime) he was 'calling it lower back pain'.
7. When Mr Strojek consulted Dr Huang on 8 April 2016, within a few days after the accident, he complained about pain in his neck, lower back and left hip. (By then, Mr Strojek had seen Dr Singh on 6 April and mentioned that he had abdominal pain and he had seen Dr Cho on 7 April and mentioned left groin pain and neck and mid back pain).[19] Dr Huang examined Mr Strojek's left hip and referred him for at CT scan of the cervical spine and x-rays including of the (left) hip and lumbo-sacral spine.[20]
8. I accept the submission by Ms Clark that, having regard to Dr Huang's detailed notes and the number of radiological investigations she arranged for Mr Strojek, it is highly improbable that had there been a complaint about his right hip or right hip area, Dr Huang would have failed to examine the right hip and arrange for the right hip to be x-rayed.
9. Mr Madder made submissions about the significance of the evidence about the left hip, and whether it meant that Mr Strojek made no complaint about his right hip. Mr Madder highlighted that in the TAC claim form Mr Strojek did not refer to his left hip but, rather, he referred to his pelvis. He also pointed out that Mr Strojek complained immediately after the accident about pain in his right lower back due to twisting.[21] (During the hearing Mr Strojek indicated he had pain after the accident going down to his right buttock). The claim form, which included the claim about 'pelvis pain', was completed very soon after the accident. (The pelvis includes the hip joints, as Dr Menz acknowledged). Mr Madder submitted that it does not follow that because Mr Strojek reported pain in his left hip three days after the accident, he did not experience pain in his right hip region at the time of the accident. He submitted, further, that a failure to report (right hip) pain does not mean that Mr Strojek did not injure his hip in the accident (or aggravate a pre-existing condition). Mr Madder went on to refer to a remark made by Associate Professor Love that 'most individuals ... wouldn't precisely identify the anatomical site of the source of pain as an individual on most occasions'. I take that view into account. On the other hand, I have noted that under cross-examination, Mr Strojek agreed that he knows where his hip is and that if he were having pain going into his hip at any stage, he would have expressed that to the doctors. Mr Strojek went on to say that he did do that.[22] But he finally said he was calling it lower back pain. In summary, the evidence indicates that Mr Strojek did not complain of right hip pain before mid-2018.
10. Mr Madder also referred to evidence by Associate Professor Love that a person who experiences pain as a result of a labral tear can experience pain 'in variable places, either directly in front of the hip joint, at the side of the hip joint or in the upper buttock'. (When Dr Menz was asked by Mr Madder whether he agreed or disagreed with that, he said that buttock pain was not a common symptom with hip pathology. He also said it was 'highly unlikely' for there to be referred pain to the lower back from a labral tear or other hip problem. In re-examination, Dr Menz said that hip problems are usually 'localised to the groin' but can extend down the thigh.[23] I will say more later about Mr Dea's comment that 'hip joint derangements can refer pain to the lower back').
11. Maintaining the focus on the claim of pelvis pain for the present, I record that I accept Ms Clark's submission to the effect that the reference to pelvis pain should be read in the context of the notes made by Dr Cho on 7 April 2016 (specifically about left groin pain) and by Dr Huang on 8 April 2016 (specifically about left hip pain). At one point during cross-examination, Mr Strojek said that he did tell Dr Huang he had pain in his right hip.[24] That evidence conflicts with Dr Huang's notes. I do not accept Mr Strojek's evidence. Rather, I accept the submission that it is highly improbable that the reference to pelvis pain in the claim form in relates to Mr Strojek's right hip.
12. I refer now to the evidence that in July 2018 Mr Strojek complained to Dr Xue about lower back pain that he said he had had for over a year. Dr Xue noted that the pain was 'sometimes' radiating to the right foot. The next month, Mr Strojek told Dr Xue that the pain had worsened in recent days and was radiating to the back of his right thigh. Dr Xue's notes do not mention pain in or around the right hip. Ms Clark pointed out that Dr Xue did say in evidence that the 'lower back already covers the hip area', [25] but Dr Xue ultimately accepted that she was referring to pain across the lower back area as opposed to pain in the hip joint itself.[26]
13. There is a question whether Mr Strojek's back condition may have signified the presence of a right hip condition. There is evidence that he had back pain prior to the transport accident: he said that he pulled his back doing some dead lifts a week or so before the transport accident, but that the condition went away.[27] The evidence rather indicates that the condition did not go away, for Mr Strojek sought treatment from his chiropractor, Dr Cho, and others on a number of occasions. The records indicate that Mr Strojek saw Dr Cho a short time before the transport accident, including on the day of the accident. Of particular significance is that whereas Mr Strojek gave evidence that his back pain was on the left side prior to the accident and on the right side following the accident, Dr Cho's notes on 31 March and 5 April 2016 indicate that the back pain was 'moving to right'.[28] While Mr Strojek initially gave evidence that he wasn't having pain on his right side prior to the accident, later he said it depended on how his back was 'spasming'.[29]
14. There is more to say about whether the complaint about hip pain that was made in mid-2018 was a 'new' complaint. Mr Madder pointed out that Ms Clark described the TAC's case to be that 'something new and distinct' happened with Mr Strojek's hip in about May or June 2018. Mr Madder highlighted Dr Menz's opinion: Dr Menz did not think that Mr Strojek suffered a hip injury at the time of the transport accident; symptoms came on two years later; and it is likely that Mr Strojek had a labral tear prior to the accident. Mr Madder observed that it was not put to Mr Strojek what 'new and distinct' event there was - after the time of the transport accident - that may have caused him to develop right hip symptoms.
15. Ms Clark made it clear in her closing submissions that she did not suggest that there was a (single) 'specific incident', but she submitted that it is plain from Mr Dea's report that the right hip symptoms came on in late May or early June 2018.
16. In my view, a 'new and distinct' event need not mean a single, noticeable, traumatic incident, but could be something that occurs gradually, as Dr Cheesman discussed in his report, or through repetitive traumas of the kind Dr Menz discussed in his oral evidence.
17. At this point there is a further aspect of Dr Xue's evidence to mention. Dr Xue recorded on 5 June 2018 that Mr Strojek complained about '2.5 weeks of sore right lower back radiating into thigh'.[30] During cross-examination, Dr Xue described the 2.5 weeks of radiating pain as an 'ongoing problem' and not something new.[31] During examination-in-chief, however, she said that it was 'probably getting worse, or maybe something different because it's radiating to the thigh. So I can only say what is based on my notes. I can't recall anything back then'.[32] Ms Clark pointed out that Dr Xue acknowledged in her evidence that she sees 40-60 patients per day and that she accepted that it would be near impossible for her to remember the specific complaints patients were making in the absence of notes.[33] I generally consider the contemporaneous notes to be a more reliable indication of what Mr Strojek reported to Dr Xue.
18. Mr Strojek saw Mr Dea about right hip pain in the same month - June 2018. It is helpful to record what Mr Dea said in part of his letter to Dr Xue dated on 20 June 2018:

Tony was clear to indicate that while he intermittently has lower back pain that relates to previous injuries and CT-indicated injuries, his current pain is of unknown onset, upon waking approximately 1 month ago. The pain appears to start deep anterolateral hip, radiating posteriorly around to the back ...[34]

1. I accept the submission by Ms Clark that it is plain from the history that there was a change in Mr Strojek's condition in about late May-early June 2018. I accept that the only reasonable way to interpret what Mr Dea said in his letter to Dr Xue is that Mr Strojek was telling him that the pain he had been experiencing in the past month was different to his past lower back pain, and that the onset of the pain was unknown and that he experienced the pain on waking. Ms Clark noted in this context that whereas Mr Dea (who is a physiotherapist) remarked that hip joint derangements can refer pain to the lower back,[35] Dr Menz (who is an orthopaedic surgeon who has had a sub-specialty in hip and knee surgery) expressed the view that that was 'highly unlikely'.[36] Ms Clark submitted that Dr Menz's opinion is to be preferred. There is more that I have to say about Dr Menz's reports later, but I indicate here that I do prefer Dr Menz's opinion on the point.
2. Ms Clark submitted that the contemporaneous material also supports the position that there was a change in Mr Strojek's functional status and condition between the date of the transport accident and May/June 2018. She pointed to contrasting examination findings between October 2017 and June 2018. In October 2017 Dr Baker noted that there was 'no obvious muscle wasting' in either of Mr Strojek's legs; that his straight leg raising of the right leg achieved a greater angle than the left; and that his reflexes were present with no neurological abnormality detected in either leg. In June 2018, however , Mr Dea found that there was 'significant atrophy of [Mr Strojek's] hip musculature, including gluteal muscles, as well as significant limitations in passive straight leg raise'. I take this evidence into account.
3. There is not only the medical evidence to consider. There is also evidence regarding Mr Strojek's return to work after the transport accident to consider. Ms Clark pointed to indications in the material that Mr Strojek was actively engaged in work, including physical work, between July 2016 and March 2018 despite the claims he made about that. The matter is relevant to the general reliability of Mr Strojek's evidence. It is also relevant to his physical capacity to function, and hence to what symptoms he was experiencing after the accident.
4. In a statement dated 30 September 2018, Mr Strojek said that since the transport accident he had been unable to do any significant work as a scaffolder. (In a statement dated 27 November 2019 he described the heavy physical demands of that occupation). He said that he made an attempt to return to work as a sub-contractor in about July 2016, but he lasted only one week before he stopped work, and since then he had done no scaffolding work. He said that the scaffolding work was done by employees and that 'on and off' he had contributed to his business in ways such as taking phone calls and speaking to clients. He said that the pain and the effects of pain medication made doing those tasks difficult. Mr Strojek noted that the TAC paid him for loss of earnings until he returned to work in June 2016. He said that after his return to work failed, he was (initially) unaware that it was possible for the payments to recommenced, so he did not seek that, but in about September 2017 a TAC representative told him he could apply for loss of earning capacity benefits and he did so.
5. In other evidence, including statements reportedly made to some of the doctors, Mr Strojek said that he tried to go to work for a day but he was unable to keep going. Ms Clark pointed out that, under cross-examination, when the contents of his September 2018 statement (in which he said his attempt to return to work lasted only one week) were put to him, Mr Strojek stated that his attempt to return to work lasted less than a day. He said he attempted to return to work in order to get money for court proceedings that involved his daughter. Ms Clark however noted that Mr Strojek gave evidence that his daughter was born in December 2018, such that these references to an attempted return to work relate to different times.
6. Mr Madder noted that Mr Strojek said that he undertook some limited work after the accident. Mr Madder said: 'The reports and notes of the doctors are consistent with him undertaking some work to a limited extent, and probably more than acknowledged by Mr Strojek'.
7. Before I turn to the doctors' notes that relate to the point, I mention that there is financial evidence about the state of Mr Strojek's scaffolding business, especially in the 2017 and 2018 financial years. The evidence is incomplete and inconclusive. Whereas Ms Clark submitted that, on the face of the available evidence, the business was profitable in these years, Mr Strojek gave evidence that the business actually got into financial difficulty because of a certain tax liability.[37] The evidence about the business does not help me to make any findings about the nature and extent of Mr Strojek's work after April 2016.
8. I mention next that Mr Madder said in his submissions that the TAC payments of benefits relating to loss of earnings and loss of earning capacity appear to have been less than 80% of Mr Strojek's pre-accident earnings. Mr Madder noted that this was consistent with Mr Strojek having advised the TAC in 2016 and 2017 that he had a work capacity and was working 'albeit to a limited extent', though he submitted that there was 'no evidence' that the business was particularly profitable. Ms Clark referred to Mr Strojek's tax returns and the TAC's payments summary, supporting the position that Mr Strojek did not receive payments for loss of earning or loss of earning capacity from May 2016 to August 2017. The evidence about the TAC payments is, ultimately, not very helpful either.
9. I now refer to the medical reports and notes that bear on the point about Mr Strojek's work after April 2016. That evidence has more probative value than the business records and records about loss of earnings or loss of earning capacity payments. Ms Clark pointed to the following notes made by doctors who Mr Strojek consulted: Dr Huang noted in July 2016 that Mr Strojek was 'back to work'. Dr Singh noted in September 2016 that Mr Strojek injured his forearm and noted 'work related injury?'. Dr Stephen Morris, an endocrinologist, recorded in September 2016 that Mr Strojek 'has been and continues to work as a scaffolder'. Dr Zhong-Mei Liu (a GP) recorded in October 2016 that Mr Strojek reported that he was 'under stress own business'. In January 2017, Dr Marged Abelbaki (a GP), who evidently saw Mr Strojek as a new patient at a different clinic, noted that Mr Strojek had 'recent work related stress'. In April 2017, Dr Xue's notes included 'has to leave work early today'. In August 2017, Dr Xue wrote 'Needs time off work'. In September 2017, Dr Xue made notes about pain Mr Strojek had in his toe after he '? kicked something at work'. In March 2018, Dr Mei Xiao (a GP) made notes that included a reference to '... stress from his work, self-employed and start a new business, has 12 persons work for him, busy every day ...' In December 2018, Mr Strojek saw Dr Xue about an injury to a finger with a hammer two weeks beforehand'.[38]
10. Ms Clark also pointed to a statement by Dr Baker in his report in October 2017. Under the sub-heading 'History of Injury', Dr Baker said:

Mr Strojek had three months off work [after the transport accident], but stated he ran out of money and had to go back to work ... He noted he returned to work with his previous employer undertaking normal duties. However, he stated that as he worked his back pain became more severe. He stopped work on 29 August 2017 ...

1. Obviously, some of the notes I have referred to provide stronger indications than other notes that Mr Strojek was working as a scaffolder (as opposed to having merely an involvement in the running of a scaffolding business). Nevertheless, there are notes that indicate that the authors understood that Mr Strojek was working as a scaffolder beyond mid-2016. At the hearing Mr Strojek's response tended to be that the doctors recorded what he told them incorrectly. And he sought to explain the references to work stress as references to stress he was experiencing because he was unable to work (or because of what I will simply describe as problems in his personal relationships). I do not accept what Mr Strojek said about that, for there were several doctors who made similar notes over a period of many months. Dr Xue, for instance, agreed in her oral evidence that she would not have noted the things she did had Mr Strojek not told her about them. Furthermore, relevant notes refer clearly to work related stress or stress from work. I accept the submission by Ms Clark that it is highly improbable that more than one doctor would report such matters without noting that an inability to work was the cause of stress, had Mr Strojek told them that was the situation. I am mindful in reaching my conclusion that Mr Strojek claimed (reasonably, on the face of it) that the notes contained errors about other matters - things that he had told the doctors about the personal circumstances of his partner and some close family members.
2. When I summarised the case for the TAC, I mentioned that Ms Clark made submissions about certain medical evidence that I would refer to later. I refer now to the most important of these submissions.
3. Ms Clark referred to the report by Mr Kossmann (quoted earlier). She submitted that Mr Kossmann did not explain how he came to the opinion that Mr Strojek was injured in the transport accident and had suffered from injuries including an injury to his right hip joint, so that Mr Kossmann's opinion should be given little weight. I agree.
4. In relation to Dr Singh and Dr Xue, Ms Clark noted that whereas they wrote letters to the TAC to the effect that Mr Strojek had had right hip pain since the time of the transport accident (Dr Singh wrote in June 2018 and Dr Xue wrote in July 2018),[39] under cross-examination each of them accepted that they were, in their letters, trying to convey that Mr Strojek told them at about the time they wrote the letters that he had been experiencing right hip problems since the accident (rather than that he had, since the accident, made specific complaints to them about right hip pain).[40] Further, as GPs, each of them deferred to the views of orthopaedic surgeons on matters including diagnosis and causation.
5. Ms Clark also referred to the report by Dr Cheesman to Mr Strojek's lawyers dated 2 August 2019. She said that Dr Cheesman did not record a clear history from Mr Strojek about the onset of his right hip pain. In any event, Dr Cheesman concluded that it was difficult to be certain which injuries were sustained in the transport accident. Dr Cheesman said that the cam lesion was likely to be an underlying lesion rather than being caused by trauma. He said that the labral tear might be a consequence of the accident. But he also said that 'such change can occur gradually over time and some individuals are predisposed due to the hip shape'. (I noted earlier that Mr Madder said that 'Dr Cheesman's reservations' (about causation) 'are understandable given that he was asked whether Mr Strojek ceased work solely as a result of the injuries he sustained in the car accident').
6. To conclude the present section of this decision record, for the reasons I have given, I consider that the evidence is not such as to justify an inference of probable connection between the transport accident and Mr Strojek's right hip condition.
7. Approaching the matter bearing in mind what VCAT said in Mennen, I do not conclude that the transport accident was a cause of (or aggravation of) Mr Strojek's right hip condition. I do not accept Mr Strojek's evidence on the central issues completely or largely. There was a lack of relevant reporting by him to health practitioners after the accident that has not been reasonably explained. The medical evidence, on a proper analysis, does not support Mr Strojek's claims. The possibility that the injury occurred after the accident cannot be excluded, in particular that a pre-existing cam deformity (with or without a labral tear) was asymptomatic until mid-2018 but became symptomatic at about that time, not by reason of the transport accident but (in the absence of evidence of a single trauma after April 2016) then most likely as the result of gradual change.
8. In the present case, even if the medical evidence could be said to allow for the possibility that the accident was a cause of (or aggravation of) the condition, there is not a sufficient combination of factors that would enable me to reach the conclusion that the evidence is such as to justify an inference of probable connection between the transport accident and Mr Strojek's right hip condition.

1. It was in October 2019 that Dr Menz conducted his first medical assessment of Mr Strojek at the request of the TAC. He provided a medico-legal report dated 21 October 2019.
2. In June 2020 Dr Menz re-examined Mr Strojek at the request of the TAC. He provided a further report dated 11 June 2020. On this occasion the material that the TAC supplied to Dr Menz for the purpose included video surveillance and related material.[41] Among other things, the TAC's letter of instruction asked Dr Menz to comment on his examination findings and Mr Strojek's injury claims in view of what the material showed.
3. The problem was that the video showed not Mr Strojek but rather his housemate. The housemate was shown doing heavy work apparently without any indication of hip or back problems. Consequently, the TAC wrote to Dr Menz in November 2020 and asked whether, given that the video showed someone other than Mr Strojek, he had anything to say about his June 2020 report. On 25 November 2020 Dr Menz wrote to the TAC and said that in the circumstances he believed that the whole of the June 2020 report should be discarded.
4. Giving oral evidence to VCAT, Dr Menz said that he now thought it was an oversimplification, made without due thought, for him to have said that the whole report should be discarded. He therefore sought to excise from the report those observations and opinions that stemmed directly from the video surveillance and related material, leaving the balance of the report intact.
5. Mr Madder submitted in effect that excising 'large portions' of the June 2020 report 'does not overcome the obvious bias underpinning the report at the time it was written'.
6. Ms Clark submitted that Dr Menz could not be criticised where it was the TAC's error in providing him with the surveillance material. Ms Clark emphasised that Dr Menz expressed his opinion about causation in the first report, which he made before he was given the surveillance material.
7. While the episode was obviously an embarrassing one, in my view it was not unreasonable for Dr Menz to reconsider his initial position that the whole of the June 2020 report should be discarded, for there were elements of the report that were manifestly not dependent upon the video surveillance and related material.
8. Dr Menz's October 2019 report was indeed made before he was given the video surveillance and related material. In that report, Dr Menz noted the history including Mr Strojek's complaints of left hip pain within months of the transport accident and what, to Dr Menz, appeared to be the first record concerning the right hip - made in June 2018. Dr Menz also referred to the findings on the MRI scan of Mr Strojek's right hip at that time which, he said, showed 'very minor pathology' of the right hip joint. Dr Menz referred to the presence of a cam lesion. He said the cam lesion 'would have been present for most of [Mr Strojek's] life' and it was associated 'very strongly with over 80% of occasions the cause of the labral tear'. Dr Menz said he did not think that there was any indication for surgical intervention based on that. Responding to the TAC's written questions, Dr Menz said that he did not think that Mr Strojek suffered any injury to his right hip in the transport accident.
9. In his June 2020 report Dr Menz generally maintained the opinion he expressed in October 2019 although on this occasion he referred extensively to the video surveillance and related material. At one point Dr Menz said that the material confirmed his opinion about the findings on the (June 2018) MRI. Dr Menz said that the 'small labral tear' that Mr Strojek had was 'related to the fact that he has a cam lesion on his right hip which would have developed many years ago prior to him becoming skeletally mature'.

Whether proposed surgery would be a reasonable medical expense

1. Mr Nizam did not give oral evidence and was not cross-examined, but he was evidently of the view that the surgery which he proposed was a reasonable medical expense. And at least by implication, Mr Nizam said that in forming his view he had looked at all of the MRI images.
2. Mr Kossmann, in comments quoted earlier, expressed the belief that Mr Strojek may require one or more surgical interventions, initially in the form of a hip arthroscopy. Mr Kossmann recommended referral to an orthopaedic surgeon specialising in hip pathologies (which, Mr Madder emphasised, Mr Nizam is).
3. Associate Professor Love said in his March 2020 report that he was 'somewhat guarded about recommending proceeding to a hip arthroscopy as the findings on the MRI report are of the most subtle type'. Later in the report he expressed the belief that 'it is hard to justify surgical intervention in view of the findings' available at the time of his examination. In his oral evidence, however, he confirmed that (in contrast to Mr Nizam) he had not seen the MRI images themselves.
4. Dr Menz said in his October 2019 report that he did not think that there was any indication for surgical intervention, based on the observations he made. Dr Menz then said in re-examination that the 'mere fact' that an MRI scan picked up a labral tear was not an indication to operate. He went on to say that his clinical examination revealed very minor signs indicative of a symptomatic labral tear, though he also said in effect that, in making the comment that he did not think there was indication for an arthroscopy, he was taking into account that he did not think that a hip injury occurred at the time of the transport accident. Earlier in re-examination, Dr Menz said that his opinion there was not need for surgery was expressed on the basis that if Mr Strojek had surgery, the TAC would be funding it. He considered that the right hip pathology was not related to the transport accident and that 'as such' there was no indication for hip surgery. 'Outside of that', he said, there may be the indication for surgery if Mr Strojek wanted to fund it.
5. Mr Madder questioned Dr Menz's objectivity in view of his 'change of position' about the June 2020 report, and he submitted in effect that who ultimately funds the treatment is irrelevant. I agree that who funds the treatment is irrelevant, but I do not consider that Dr Menz displayed a lack of objectivity even if elements of his June 2020 may have influenced by prejudicial video and other material that had nothing to do with Mr Strojek.
6. Given my conclusion in this case, I am not required to determine whether the proposed surgery would be a reasonable medical expense. I would nevertheless say that proper weight should be given to the views of Mr Nizam. But without hearing oral evidence including cross-examination, I could not say that I would necessarily prefer his opinion to the opinion of the other orthopaedic surgeons on the point.

1. For the reasons I have given, I affirm the decision under review.

[1] According to Dr Menz, a medical witness for the TAC, a cam lesion (or deformity) is an abnormal bump on the superior aspect of the neck of femur and the labrum is a cartilage. Dr Menz said that with movement, inflexion and abduction, the bump impinges against the labrum and with time it wears it down and tears it. (Transcript p 298). He said, further, that cam lesions are associated very strongly with (over 80% of occasions) the cause of the labral tear. Dr Menz was asked in cross-examination about the possibility of a pre-existing labral tear being made worse by trauma of the kind experienced by Mr Strojek in the transport accident, among other matters: see below.

[2] The context seems to suggest, as Mr Madder submitted, that the question was whether there was pain radiating to the extremities, which could indicate an injury to the spine.

[3] Dr Baker, a specialist in occupational medicine and public health medicine, saw Mr Strojek at the request of the TAC. Dr Baker was asked to assess Mr Strojek's current medical condition and work capacity. He provided reports to the TAC in October and November 2017.

[4] Mr Madder noted that Mr Kossmann's opinion was not challenged in cross-examination (because

[7] Mr Madder noted that Mr Dea was not required for cross-examination.

[8] Dr Xue wrote to the TAC on 18 July 2018 saying that Mr Strojek 'has been suffering low back pain and bilateral hip pain over 2 years' since the transport accident. Among other things, she added that the medical records contained no evidence suggesting any right hip injury prior to the accident. Dr Xue was relevantly cross-examined.

[10] Dr Menz's first report, under the heading 'Medical History', says that Mr Strojek 'stated that prior to the accident he had never had any back or hip problems before'.

[11] Mr Strojek gave oral evidence that he was 'pretty sure' he told ambulance officers that he had pain in the right side of his back, lower back and hip: T p 21.

[12] Annexed to Ms Clark's written submissions was a summary of the complaints that Mr Strojek reportedly made to health practitioners on scores of occasions from 6 April 2016 to 30 June 2018. Under cross-examination, Mr Strojek insisted that he did have problems with his right hip in the two years following the transport accident but he gave evidence to the effect that he (and the doctors) thought the problem was his back and he did complain about that. He was calling the problem lower back pain: T pp 61, 66.

[14] For instance, in his October 2019 report, Dr Menz noted among other things that Mr Strojek 'was only able to straight leg raise on each side to 30 degrees but was able to sit up at 90 degrees with distraction'. In his October 2017 report Dr Baker said that his 'overall impression' was that although Mr Strojek was suffering some back pain, he did not consider that Mr Strojek's condition was as incapacitating as he portrayed.

[16] Ms Clark made submissions regarding a report dated 22 March 2022 to Mr Strojek's lawyers by consultant neurologist and clinical neuropsychologist, Dr Janaka Seneviratne, that included a similar submission to the one made about Mr Nizam.

[21] The immediate complaint, as recorded in the notes, included a complaint about pain in his flank. Mr Strojek said this was not a term he would have used. Dr Menz remarked in his evidence that the flank is 'nowhere near the hip region'; that it is above the pelvis': T 303-304.

[34] At page 74 of the transcript, the word 'radiates' appears instead of 'relates', in apparent error.

[38] Mr Strojek gave evidence that he thought this injury may have occurred when he was constructing a dog hut at home: T 166. He also said there was a later hammer injury which he thought he sustained when he was assembling a plastic playhouse for his daughter: T 166.

[41] As described by Dr Menz, the footage shows the subject in March 2020 doing heavy scaffolding work of such a nature that indicated that he had no hip or back problems. Dr Menz noted that Mr Strojek had told him he had not been working at relevant times.