Nicholson v TAC
[2025] VCC 121
•13 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication | |
SERIOUS INJURY LIST
No. CI-24-02927
| BENJAMIN NICHOLSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | Her Honour Judge Clayton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2025 | |
DATE OF JUDGMENT: | 13 February 2025 | |
CASE MAY BE CITED AS: | Nicholson v TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 121 | |
EX TEMPORE REASONS FOR JUDGMENT
Subject: Accident Compensation
Catchwords: Serious injury – psychiatric impairment – pre-existing psychiatric diagnosis – whether aggravation of pre-existing condition meets the test – credit of plaintiff – reliability of evidence
Legislation cited: Transport Accident Act1986
Cases Cited:Petkovskiv Galletti [1994] 1 VR 436
Judgment:The plaintiff is granted to leave to commence proceedings for pain and suffering and pecuniary loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Macnab, with Mr S. Carson | Arnold Thomas Becker |
| For the Defendant | Mr S.Smith KC, with Mr T. Storey | Russell Kennedy |
HER HONOUR:
1 Mr Nicholson seeks leave to issue proceedings for the recovery of damages at common law pursuant to s.93(4)(d) of the Transport Accident Act. He claims he suffered an injury to his thoracic spine, which meets the definition under s.93(17)(a) and a psychiatric injury that meets the definition under s.93(c).
2 In order to be granted that leave he must establish that the pain and suffering and loss of enjoyment of life consequences, including any pecuniary disadvantage consequences, can be fairly described as at least very considerable, and certainly more than significant or marked when compared with other cases in the range of possible impairments or losses.
Background.
3 Mr Nicholson was born in June 1990. He was 30 years old at the time of the accident on 26 February 2021. At the time of the accident he was working as a fulltime teaching assistant in the plumbing department of Chisholm TAFE, and he had been employed there since January 2020. He has not worked since the accident.
Past medical history
4 According to the plaintiff's first affidavit he was diagnosed with anxiety and depression at about 8 years of age and was prescribed Zoloft until about 16. He changed medication to Effexor, which he stayed on until having hypnotherapy at age 22, which he found to be of great benefit. And he came off Effexor and ceased counselling, and felt that his mental health turned a corner at that time.
5 In his subsequent affidavit dated 7 February 2025, which I understand was made after he had seen his medical records, he says that he in fact continued to take Effexor until June 2020, but he ceased taking it for a period during 2019 when he had slowly withdrawn from it.
6 Despite remaining on Effexor until 2020, he says his memory is that he was feeling pretty good in the year before his motor vehicle accident. He also said that although his medical records show he was on Effexor until 2020, he only used this medication sporadically, and would sometimes obtain a script but not fill it, or would go off it and back on it without medical supervision.
7 I turn now to consider the medical records of his general practitioner, which start at the defendant's court book p.89, and I have extracted just those records that are relevant to his psychiatric history.
8 On 4 February 2016 he is noted to have a history of anxiety and depression, and to have stopped Effexor 6 months ago.
9 On 20 February 2016 he was noted to have anxiety and to be requesting a mental healthcare plan, and medications for anxiety for an upcoming flight. The record notes that he had not been on medication for a few months and now finds himself extremely anxious, especially with symptoms of agoraphobia. The records note that he had a new girlfriend and he found it difficult to go out.
10 A mental health examination disclosed that his mood was euthymic, anxious, that his attention and concentration were poor. He had a low appetite. Motivation and energy were low. He had poor memory from time to time, poor judgment, and his insight was impaired. The medical practitioner notes that anxiety symptoms were present and commenced Mr Nicholson on Effexor at a dosage of 37.5 milligrams.
11 On 3 June 2016 the medical record notes that Mr Nicholson was feeling a bit better on Effexor, had some Valium for anxiety, which did not help. He was still hot and sweaty, getting panic attacks. He was fidgety and having difficulty falling asleep. The plan was to increase him to a full dose of Effexor.
12 On 18 September 2016, Mr Nicholson was prescribed Valpam to help with vertigo and anxiety. He was then continued on Effexor and attended for repeat scripts throughout much of 2017.
13 On 27 August 2017 the medical record notes that he has had anxiety since he was young and that he was now on Effexor. He was having sexual symptoms with a new girlfriend and wanted to change his medication. The mental health examination noted that he was anxious, and the plan was to slowly change him to Valdoxan.
14 The records of 18 December 2017 note that he punched a wall in anger, and there was a repeat prescription for Effexor. Then the following year on 8 December 2018 he was noted to have punched a fridge.
15 On 15 December 2018 he attended suffering depression and seeking a repeat prescription for Effexor.
16 On 10 April 2019 he was noted to have longstanding issues with low libido. He was on Effexor for anxiety and was wondering if that was the cause of the libido issues.
17 The medical records note that he had tried other antidepressants, and that the only thing that worked was Effexor. At that presentation he was noted to have no anxiety issues at the moment, to have good mood and a supportive partner.
18 On 16 June 2019, Mr Nicholson was noted to have recently started hydrotherapy - now, that is what is recorded, but I assume that it was meant to record hypnotherapy - and that he had found it life changing. The note records that he wanted to stop his antidepressant and see how he feels. The doctor has noted of the importance of gradually tapering the dose, and the plan was to lower the prescription of Effexor to help him manage his withdrawal for the next 4 weeks.
19 On 10 July 2019 the medical record notes that Mr Nicholson was keen to come off Effexor, and that there was a discussion about how to do this safely and gradually, and to review in 2 weeks and discuss how he was coping going off it then.
20 On 14 August 2019 the medical record notes that Mr Nicholson is off Effexor and cannabis, his anxiety was better controlled, but that he had no motivation and was not sleeping well. There was a plan to try Brintellix, which I understand is an antidepressant. On questioning by me, Mr Nicholson denied ever having taken this. I note that there is no record in the medical records of this having ever been prescribed. The plan was also to refer Mr Nicholson to an exercise physiologist. He denied any recollection of a referral to an exercise physiologist.
21 On 6 June 2020, the plaintiff attended for dizzy spells associated with his Meniere's disease. In the section of that entry under "actions", where the doctor has noted the medications, the doctor has recorded, "Venlafaxine, which is Effexor, 37.5 milligram modified release capsule [ceased]."
22 In approximately July 2020 the plaintiff had gastric sleeve surgery, and prior to that surgery, he gave evidence, that he had lost a significant amount of weight, getting down from around 175 kilograms at his peak, to around about 135 kilograms prior to the surgery.
23 He presented to his GP again on 27 August 2020, about five weeks after the gastric sleeve operation. The plaintiff said that for about 6 weeks after the operation he had complications of that surgery which caused him to lose a lot of weight very rapidly, but he then started to improve. There is no record between August 2020 and February 2021 of any consultation with the general practitioner in relation to his mental health.
24 Then on 10 February 2021, Mr Nicholson attended his general practitioner who noted that he was feeling lethargic and was not eating well, and ordered blood tests. On 16 February 2021, he attended, his blood tests were normal, and there is a record of a discussion which notes "fatigue in relation to mood. May be slightly depressed. Sleep, neglecting this. Substance use/misuse, daily use of THC. Exercise, not exercising."
25 I note here that it is not clear that the doctor's note records what the plaintiff said, rather it is a discussion of fatigue in relation to mood, sleep, substance use and exercise. It could record what the plaintiff had reported. It could also record that the doctor discussed with the plaintiff, for example, fatigue in relation to exercising and not exercising. It is not possible to know what the doctor meant in the absence of evidence from the doctor.
26 The plaintiff denied that he was not exercising, although he agreed that if the doctor had recorded him saying that, he likely had given that history to the doctor. However, he could not account for why he would have said that, as he was adamant that after the initial complications surrounding the gastric sleeve surgery, he had been exercising, doing CrossFit sessions of between 30 and 60 minutes, about three times a week, and walking for an hour or so most nights of the week with his wife, and several hours on the weekend. He also said that on a couple of occasions he had been for longer walks or hikes at Wilsons Prom with his wife.
27 His general practitioner's note on that occasion ends with a plan to refer to an exercise physiologist. Again, Mr Nicholson said he had not, to his recollection, ever attended an exercise physiologist.
28 In relation to the physical injuries that the plaintiff suffered prior to the motor vehicle accident, he said that he had previous lower back pain from sporting activities, mostly dirt bikes, but no history of thoracic pain. He also had Meniere's disease, which had impacted his ability to work as a plumbing trades assistant. That was diagnosed in about 2015 or 2016, and he had lost his job as a result. It was in part because of that, that he had started working at the TAFE as a teaching assistant.
29 He was prescribed Diazepam and Serc for Meniere’s disease, but said that he has subsequently largely come off that medication, and now takes it only if needed. He can usually feel an attack of vertigo coming on, and pre-empt it by taking his medications.
30 I note that his admission records to the hospital at the time of his accident record that he was taking CBD Oil, Diazepam and Pantoprazole, and he says he was using the CBD for Meniere's and fatigue.
motor vehicle accidentThe .
31 On 26 February 2021, Mr Nicholson says he was driving to work when a truck and trailer pulled out in front of him. He was unable to avoid a collision and T-boned the truck and trailer.
32 He attended his general practitioner shortly after the accident, and from there was sent to Frankston Hospital, and then transferred to the Alfred Hospital where he was diagnosed with pneumomediastinum on CT scan. This was managed conservatively. He was discharged, then readmitted for a number of days, and that eventually resolved.
His medical history post the accident.
33 After the accident he developed mid back pain, and he says that pain persists, and he has been recommended to attend a further pain management program.
34 An X-ray of 31 October 2020 showed a slight scoliosis, but no degenerative disease. An MRI of that same date, 31 August 2020, showed mild disc protrusion at T4-5, T5-6 and T6-7. No facet joint arthropathy. No neural compression, but some cord contact.
35 Dr Mittal, his treating pain specialist, diagnosed myofascial spasm and facetogenic pain, and recommended a T4-9 medial branch block which he underwent on 25 May 2022, but found to be of no benefit.
36 He says he continues to have severe back pain. He has undertaken a 12 week management program which assisted. It has been recommended that he undertake a further program, and would like to do so, but says he has difficulty finding a suitable time, and that driving to South Eastern Private Hospital is difficult because of his pain.
37 I pause here to note that it was not entirely clear to me whether the evidence that he gave in relation to the pain management program that he has attended and is recommended to attend in the future, was being confused with a twelve week psychiatric treatment plan that has been recommended by his treating psychiatrist. I have some question about whether what he has attended in the past was a pain management plan and he is recommended for a future pain management plan, or whether the future plan that he has been recommended for is more psychiatrically focused. I am not sure that it makes any difference, and it certainly does not make any difference to my ultimate findings, but I just note that there is some confusion between the records and the evidence that I heard as to the exact nature of the program that is recommended in future.
38 He has otherwise had no other treatment for his back pain. He takes Norgesic for pain if he absolutely has to, but where possible puts up with the pain. He says he was taking CBD oil, although again there is some confusion about the difference between CBD Oil and THC Oil. In any event, in relation to either of those oils he says that he can no longer afford it, but that he does resort in the end to painkillers about three times a week.
39 In terms of other consequences that he claims as a result of the motor vehicle accident, he says he has developed PTSD, post-traumatic stress disorder. He sees a psychologist alternate weekly, and a psychiatrist in the other weeks, although he has not attended his psychiatrist for some time - he agreed in his evidence that he had not seen his psychiatrist since last September.
40 He attended a PTSD rehabilitation program which was of benefit, and he is waiting to attend a further PTSD rehabilitation. This is where the confusion in my mind arises in relation to the PTSD program as opposed to the pain management program.
41 His anxiety and depression that he previously suffered have recurred, and he says have been aggravated. He takes Sodium valproate and Klonopin for his psychiatric conditions.
Credit.
42 The defendant puts the plaintiff's credit squarely in issue and says that the plaintiff's evidence is not reliable as a consequence. There are two main matters that the defendant points to in this regard. Firstly, the termination of his employment. The plaintiff said in his first affidavit that his employment was terminated because he was unable to perform his work, and his employer was unable to keep his job open. He did not revisit or revise this statement in either of his subsequent affidavits, and did not seek to amend this evidence in oral evidence. That affidavit was sworn in June 2023.
43 In November 2022, the plaintiff had been terminated by Chisholm TAFE. The reason given for his termination in a letter from the TAFE was that he had repeatedly failed to provide the TAFE with an update regarding his medical condition, and evidence of his COVID-19 vaccination status. The TAFE had a policy requiring employees to be vaccinated for COVID-19.
44 In cross-examination the plaintiff agreed that the reason given for his termination was in relation to his vaccine status and medical records, and not because the employer could not keep the job open. The defendant says it beggars belief that six or seven months after being terminated the plaintiff had forgotten why he had been terminated, particularly as he acknowledged his termination was a real blow. His explanation that he had simply forgotten is disingenuous and ought not be believed. The defendant says I should accept that he gave misleading evidence and this should go against his credit, and the reliability of his evidence more broadly.
45 The defendant also says this means I have no information about the plaintiff's employment status, but for the question of the COVID vaccine. If he had refused to be vaccinated he would have been terminated regardless of his motor vehicle accident and claimed injury. The defendant says I can therefore draw no conclusions about his pecuniary loss.
46 The second credit issue arises from the plaintiff's used of Effexor and his psychiatric state prior to the motor vehicle accident. In his first affidavit the plaintiff said he used Effexor until he was aged 22, and thereafter went off all medications. In fact, he started taking Effexor aged 18 after previously having used Zoloft. He had a short period of six months off Effexor, which caused him to significantly deteriorate, and he commenced Effexor again before ceasing it in about mid 2020.
47 His affidavit significantly underplayed the use of Effexor, and the fact that his psychiatric condition was such that he needed Effexor. The defendant submits that it beggars belief that he gave this evidence unintentionally, and that the picture is not somebody who prior to the motor vehicle accident was enjoying good mental health. The defendant submits he had long-term problems with fatigue, low libido, low motivation and sleep difficulties. These problems built up until shortly before the motor vehicle accident they were sufficient to warrant a visit to the GP, who noted that he was fatigued, not exercising, and that his mood was low.
48 The defendant says these matters significantly undermine the picture the plaintiff paints of a person who, despite some past difficulty, was doing well, was happy and with no mental health problems in the immediate period prior to the motor vehicle accident.
49 In addition, in relation to credit, the defendant notes the plaintiff's evidence in regard to not previously having taken THC, but having used CBD Oil for his Meniere's disease. I note the medical records in places record the use of THC, and that Dr Mittal notes the intermittent recreational use of marijuana.
50 I accept that there is a difference between CBD Oil and THC. There is also a difference between the use of marijuana and THC Oil, but the intricacies of those differences are not something I am familiar with, and I am not able to opine as to whether the distinction would always be well understood and accurately reported by different doctors. Nor am I able to discern whether Dr Mittal accurately reported what she was told. I do not think that the plaintiff's evidence about his use of CBD Oil substantially damages his credit.
Findings on credit.
51 The credit of the plaintiff is critically important, particularly when a case relies primarily on a plaintiff's self-reports of pain and suffering consequences to courts and doctors. I am not persuaded that there are significant credit findings to be made against Mr Nicholson.
52 In relation to the termination of his employment, I do not consider this strikes a significant blow against his credit. At the time of his termination he had not been working for about 18 months. While he may have lost his job in any event due to his COVID-19 vaccine status, I do not accept that his attribution of his termination to his incapacity to perform his job demonstrates he was attempting to bolster his case.
53 The plaintiff clearly had difficulty with his memory and recollection of events, and I am not satisfied that this error was deliberate, or was an attempt to bolster his case. In any event, it is not clear how it does bolster his case. The plaintiff's case is that because of his injuries he cannot work. Whether he was terminated because of this incapacity, or for some other reason does not bolster his case.
54 In relation to his use of Effexor, I accept that the plaintiff's evidence is unreliable in relation to his past use of this medication. I do not find that the plaintiff deliberately attempted to bolster his case, but again has a very poor recollection. This causes me to treat his evidence with caution. I am persuaded that, whether deliberately or not, the plaintiff likely underplayed the extent of, and the severity of his pre-existing psychiatric condition.
55 Although there is some unreliability of the plaintiff's evidence, this does not mean that I discard that evidence entirely, particularly his evidence about the consequences. Where his evidence is unreliable I must look carefully at the history upon which the doctors have based their opinions to determine whether those expert opinions are impugned by the inaccurate or misleading history provided.
56 I note that Dr Krapivensky has a history of Zoloft used until he was 18, and that he gradually stopped all medications after treatment at Headspace in his late adolescence. Importantly, she had the clinical records from his general practitioner, and specifically notes in her report that he was on Effexor in December 2018, and was off it completely in August 2019. Whatever the plaintiff told her about his use of medication, she was alive to the fact that he took it until he was 29. She also has the accurate history of his termination of employment.
57 Dr Gibb had an accurate history of his use of medication, given that he was the prescribing doctor.
58 Dr Tilakawardena does not set out the plaintiff's psychiatric history. She saw the plaintiff on referral from Dr Mittal. Dr Mittal records a history that the plaintiff had a history of anxiety and depression since childhood, and was prescribed medication for this which ceased in about 2016, when he commenced - and she has recorded "hydrotherapy", but it should be hypnotherapy. This is an incorrect history. Hypnotherapy did not occur until 2019, and medication ceased after that. Therefore, there is a discrepancy of about three years in the period the plaintiff reported as having been off the medication to Dr Mittal.
59 It can be inferred, that given that Dr Mittal was the referring doctor, Dr Tilakawardena may have likewise had an incorrect history. Although this is not insignificant, I do not think it impacts the accuracy of Dr Tilakawardena's report to the extent that her conclusions are impugned and her opinion is invalid. The bare bones of the plaintiff's history are correct, and I am not persuaded that a three year difference in the period of taking medication, where that medication was on any version of events taken for a long time, is sufficient for me to disregard her opinion.
60 I will turn now just to very briefly deal with a summary of the opinions that were before the court.
The treating doctor opinions.
61 Dr Mittal, the pain physician, diagnosed myofascial spasm, worse on the left. Noted fear avoidance behaviour, ongoing anxiety and depression, considered Mr Nicholson's prognosis was guarded and that he was unfit for work.
The treating general practitioner, Dr Gibb, notes the diagnosis with a chronic pain condition and exacerbation - I think he describes it as a greatly exacerbated pre-existing anxiety and depression.
62 Dr Brasier, Occupational and Environmental Specialist, noted that Mr Nicholson had anxiety as a barrier to returning to work, and moderately severe PTSD which also represented a red flag in relation to a return to work.
63 Dr Giaquinta, the psychologist, the report is dated 2022, so it is a little out of date, but she noted symptoms consistent with PTSD, and a somatic symptom disorder with predominant pain.
64 Dr Tilakawardena, the treating psychiatrist, saw the plaintiff on average every two to four weeks prior to, but not since, September 2024. The plaintiff said that this was due to a difficulty getting an appointment. She diagnosed a significant psychiatric injury from the motor vehicle accident, and noted that Mr Nicholson had developed PTSD, comorbid anxiety disorder, and a major depressive disorder due to ongoing pain, disability, losses due to physical disability and deterioration of mental health. She considered he fulfilled the diagnostic criteria for PTSD, and noted that he struggled to leave his house, was highly anxious when driving and was socially isolated. She considered he does not have a current work capacity due to his psychiatric condition, and realistically his work incapacity would continue for the foreseeable future.
Expert medical opinions.
65 Dr Slesenger, occupational physician, diagnosed a soft tissue injury to the chest, and pneumomediastinum, and an aggravation of a degenerative disease of the spine. Plus a soft tissue injury to the thoracic spine, which in his opinion had all resolved.
66 He formed that opinion because he noted: an absence of wasting around both shoulders, despite weakness and limited range of movement reported; there was inconsistent seated to supine straight leg raise; there was an improved range of movement on distraction; and there was evidence of heavy and repetitive manual tasks. He formed the conclusion that any impairment that Mr Nicholson suffered was not related to the motor vehicle accident.
67 Mr Dooley, orthopaedic surgeon, diagnosed an orthopaedic soft tissue injury to the thoracic spine, most likely caused by seatbelt activation and airbag deployment, causing subcutaneous and muscular bruising. He noted a mild restriction of the active range of motion, and he would expect that the plaintiff's organic injury would continue to cause intermittent pain and be unlikely to deteriorate.
68 However, he said that the pain that the plaintiff experienced was not explained by any organic injury. From a physical point of view he considered that Mr Nicholson could continue to work in a teaching type environment.
69 Dr Gassin, a general practitioner with a pain specialisation, opined that the aetiology of the back injury was difficult to ascertain, and hypothesised that this could be due to an injury to the upper to mid thoracic paravertebral muscle leading to a condition similar to notalgia paraesthesia, that is, an impingement of the small subcutaneous nerve which can occur with soft tissue injuries, and is usually associated with itchiness and burning pain. I note that he is the only doctor to hypothesise this particular injury, but in any event, he considers that there is an organic basis to the injury.
70 Dr Akil, neurosurgeon, diagnosed Mr Nicholson with a aggravation of thoracic spondylosis. He considered the condition was stable. The prognosis was guarded. He noted that Mr Nicholson complains of pain when he has to sit or stand for more than 10 minutes and aggravation of pain on activities, such as pulling, pushing and bending. He also observed muscle spasm and tenderness on both sides of the thoracic region.
71 Dr Akil does not opine on what impact this has on his work capacity. In my view it would be reasonably apparent that the limitations that he notes would have a significant impact on any manual work.
72 Gavin Weekes, pain specialist, diagnosed chronic thoracic pain secondary to thoracic spondylosis caused by the motor vehicle accident. He considered the injury was organically based on the clinical sign symptoms and radiology, and noted permanent functional limitations with a poor prognosis. He considered Mr Nicholson unable to return to work in any meaningful form.
73 Turning now to the psychiatric reports. Dr Walton, psychiatrist, diagnosed a generalised anxiety disorder with depressive features. He noted past clinically significant mood disturbance since middle childhood which was somewhat aggravated by the motor vehicle accident. He noted novel symptoms of a fear of driving, avoidance behaviour, and some minor re-experiencing phenomena in the form of vivid memories and dreams. He considered that there was a psychiatric aggravation from the motor vehicle accident, but that it formed a modest component of the overall picture.
74 Dr Khalid diagnosed PTSD from the motor vehicle accident, and a chronic adjustment disorder with mixed anxiety and depressed mood as a result of the physical symptoms, and considered that based on the severity of the PTSD Mr Nicholson is not suitable for employment.
75 Dr Krapivensky diagnosed PTSD and major depression. She considered the PTSD was caused by the accident and was the primary condition. The recurrence of the major depression occurred in the context of back pain and financial difficulties. She considered that the motor vehicle accident materially contributed to, but was not the only factor contributing to the psychiatric presentation. She considered the prognosis guarded, and that Mr Nicholson had no current psychiatric capacity for work.
The consequences.
76 Mr Nicholson claims the following consequences arising from his injuries as a result of the motor vehicle accident. He says he has difficulty maintaining a static posture for more than 5 or 10 minutes, although he can do some light benchtop cleaning, folding laundry and light cooking, and will occasionally attend a shopping outing. He otherwise does not do any chores.
77 He used to enjoy drag-racing, car drifting and riding dirt bikes and motocross, but has had to cease these. I note that this evidence was supported by the evidence of his wife, which was unchallenged. He says he can drive an automatic car for short periods, but he very rarely drives, and usually his wife drives.
78 He says he is in pain that is severe in the upper and mid back, with radiating symptoms to his shoulder blades. He has a restricted range of spinal motion and shoulder movements. He says it is there every day and that it flares up with even light physical activity. Standing can also cause a flare-up, and hunching over helps a bit. He says sitting and standing can aggravate the pain. He takes Panadol occasionally, and sometimes CBD Oil, but cannot afford this anymore. He takes Norgesic if he absolutely has to, and ends up using some kind of painkiller about three times a week.
79 He said his weight went from 175 kilograms prior to gastric sleeve surgery, to 75 kilograms after that surgery, but since the motor vehicle accident it slowly increased to 97kilograms. He says he is rarely intimate anymore because it is painful, and this evidence is also supported by his wife's evidence.
80 On a psychiatric basis he sees a psychologist and a psychiatrist. He takes, according to his June 2023 affidavit, Duloxetine and Catapres, although it appears that now he takes Sodium valproate and Klonopin. He says these do not help much.
81 He says he has nightmares and wakes screaming sometimes. He is anxious. He finds driving is difficult. He has flashbacks. He cannot sleep - in his affidavit he said for more than an hour at a time, in oral evidence he said it is often only about 30 minutes at a time. Over the course of a night, he might only get three or four hours of sleep. He says he has a lot of stress and tension, and that he and his wife have put on hold trying to have children.
82 In terms of employment, at the time of his motor vehicle accident he was working fulltime at Chisholm TAFE as a technical officer in plumbing. His role there was terminated in November 2022, but in any event he has not worked since the motor vehicle accident.
My findings.
83 Turning first to Mr Nicholson's psychiatric condition prior to the motor vehicle accident. I find it inherently unlikely that he went on and off the Effexor in the manner he suggested in his evidence, given the way the drug must be titrated and weaned when starting and finishing.
84 Having regard to the medical records and the medical note that he stopped Effexor in August 2019, I consider it is more likely than not that this was the time at which he ceased Effexor.
85 Notwithstanding that the plaintiff's subsequent affidavit says that he was on Effexor until mid 2020, there is in fact no further medical record of a script for Effexor after August 2019. The note that Effexor was ceased in June 2020 does not establish in my mind, or to my satisfaction, that the Effexor was ceased at that time. Rather, it seems to be a record that he was previously on Effexor, which had been ceased.
86 This means that as at the time of the motor vehicle accident Mr Nicholson had not been taking Effexor for a period of about 18 months. Although in the context of his longstanding history of depression and anxiety, this is not a long time, it is sufficient for me to be satisfied that from the perspective of his mental health, Mr Nicholson was doing perhaps better than he had ever done before.
87 Prior to the motor vehicle accident there had been some decrease in his mental wellness, but there is limited evidence of this. The doctor's notes, as I have set out previously, are equivocal, and I am not satisfied that they demonstrate that Mr Nicholson was not exercising or had low mood or was neglecting sleep, and so on.
88 Objectively, Mr Nicholson was doing well. He had lost a very significant amount of weight. He was working fulltime. He was recently married. These are all positive developments in his life. It appears his mental health was under control, at least to the extent that he required no medication, and was not having any counselling.
89 I accept that he had longstanding issues with his libido, that he had some problems with his sleep, and longstanding issues with anxiety and depression, notwithstanding that at the time of the accident he did not need medication or counselling.
90 Turning now to the picture after the motor vehicle accident, he has a new diagnosis of post-traumatic stress disorder. The opinions are divided as to whether this is mild; in Walton's view he had some mild symptoms of this, or whether this is the primary diagnosis. Nevertheless, it is diagnosed by Khalid, Krapivensky and the treating psychiatrist, Dr Tilakawardena. Only Walton does not give a positive diagnosis of post-traumatic stress disorder.
91 Doing the best I can on the medical material, I accept that the symptoms caused by the post-traumatic stress disorder, in particular, nightmares and flashbacks, have had a significant impact, at least on his sleep, and his consequent fatigue, as well as his overall mental state. He describes feeling afraid to go to sleep. I am satisfied that the consequences of the post traumatic stress disorder have also had an impact on his capacity to drive.
92 The experts also reached different opinions as to his diagnosis in relation to his anxiety and depressive symptoms. Some diagnosed a major depressive disorder, some a chronic adjustment disorder with depressive features and anxiety, and some an aggravation of underlying anxiety and depression.
93 There is no dispute amongst the treaters and the experts that there is a psychiatric diagnosis. The exact nature of that diagnosis is of less relevance than the consequences of the psychiatric condition.
94 Even though I have found that there is likely some underplaying of the severity of the past psychiatric history, and under-recording of past use of medication, I am satisfied that, at least in the 12 to 18 months before the accident, the plaintiff was not on any medication for any psychiatric condition, was not receiving counselling, was able to work fulltime, and was exercising regularly. I accept his evidence that he was exercising. His answers about doing CrossFit, and the detail he provided was credible, and I accept it. He was able to drive and enjoy his drift racing and motorbike riding, and that he had lost a significant amount of weight.
95 Since the motor vehicle accident he has a new diagnosis of post-traumatic stress disorder, and aggravation of his anxiety and depression. I accept his general practitioner's report that the anxiety and depression has been greatly exacerbated. This is the general practitioner's clinic where the plaintiff had been treated for at least eight or nine years, and had seen him when he came in, when he came off Effexor in 2016, and needed to go back on it because of a recurrence of his symptoms, and managed his weaning off Effexor in 2019.
96 Dr Gibb is also the doctor who saw him on 16 February 2020, 10 days before the accident, and made the note about "mood may be slightly depressed." The fact that he opines that the motor vehicle accident has greatly exacerbated Mr Nicholson's depression and anxiety, having seen him immediately before the motor vehicle accident, is a matter to which I give some weight.
97 Petkovskiv Galletti [1994] 1 VR 436 makes it clear that I must be satisfied, where there is an aggravation of a pre-existing psychiatric condition, that the aggravation itself is sufficient to meet the definition of a severe long-term mental, or severe long-term behavioural disturbance or disorder.
98 I am so satisfied for the following reasons.
99 He has a new diagnosis of PTSD caused by the motor vehicle accident which impacts his sleep, his overall wellbeing and his capacity to drive.
100 He has a severe exacerbation of anxiety and depression which results in low mood, feelings of helplessness, difficulties with concentration and memory, and additional stress and tension.
101 He now has regular counselling with a psychologist and a psychiatrist, though I note he has not seen his psychiatrist for some months.
102 He has resumed psychiatric medication, which he does not like taking.
103 He has flashbacks, and he is unable to work from a psychiatric perspective, according to the opinions of Krapivensky, Khalid and Tilakawardena, which I accept.
104 There is no opposing medical opinion that he is able to work from a psychiatric perspective, nor any opposing opinion that he does not have a psychiatric condition caused by the motor vehicle accident.
105 His inability to work on its own is sufficient to meet the test of a consequence that is at least very considerable.
106 Accordingly, the plaintiff has leave to bring common law proceedings for pain and suffering and pecuniary loss.
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107 Do the parties want to have some discussion, or deal with costs immediately?
108 MR SMITH: Your Honour, we've already had some discussions about that. Can I perhaps propose this, that we put together some written proposed consent orders and get those to Your Honour's chambers by sort of mid morning, at the latest tomorrow morning?
109 HER HONOUR: That's fine. When you say you've already had some discussions, have you already agreed?
110 MR CARSON: Yes, we have.
111 HER HONOUR: Terrific. Okay.
112 MR SMITH: Sorry. Sorry, we have, Your Honour.
113 HER HONOUR: That's lovely. Yes, all right, by all means. All right. Well look, the orders that I'll - I won't make any orders now then. Those are my reasons and I'll wait for your orders tomorrow and I'll make them tomorrow.
114 MR SMITH: Yes. Thank you. Thank you, Your Honour.
115 HER HONOUR: Yes, all right. Thank you. Is there anything else that we need to deal with this afternoon?
116 MR CARSON: No, Your Honour, thank you.
117 MR SMITH: No, thank you.
118 HER HONOUR: I thank you both very much. We'll adjourn the court.
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