Nicholson v Transport Accident Commission
[2025] VCC 1690
•19 November 2025
0
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-23-05558
| SHANE NICHOLSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | Judge Cahill | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 & 9 September 2025 | |
DATE OF JUDGMENT: | 19 November 2025 | |
CASE MAY BE CITED AS: | Nicholson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1690 | |
REASONS FOR JUDGMENT
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Subject:Transport accident compensation
Catchwords: Serious injury – truck driver – traumatic heavy vehicle rollover – PTSD –– dispute as to consequences of PTSD and consequences of previous spinal injury – credible plaintiff –- severe long-term mental disorder cause of resignation from employment
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:TAC vKatanas (2017) 262 CLR 550; Mobilio v Balliotis [1998] 3 VR 833; Humphries v Poljak [1992] 2 VR 129; Peak Engineering Pty Ltd v VWA & McKenzie [2014] VSCA 67
Judgment: Leave granted to the plaintiff to pursue a common-law claim for damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Moulds KC and | Arnold Thomas & Becker |
| For the Defendant | Ms A Wood and Ms J Zhu | Transport Accident Commission |
HIS HONOUR:
1On 29 July 2020, at Kongwak, Mr Nicholson was injured in a transport accident (“the accident”) when a milk tanker, which he was driving, overturned.
2He seeks leave under s 93(4)(d) of the Transport Accident Act 1986 (Vic) to commence a proceeding for the recovery of common law damages for PTSD which he allegedly suffered as a result of the accident.
Background
3Mr Nicholson is 62 years old. He has driven trucks for most of his working life.
4In September 2018 he started work with Peter Stoitse Transport Pty Ltd (“Stoitse”).
5When the accident occurred he was driving a Stoitse milk tanker which rolled over into a roadside culvert.
6Mr Nicholson was taken to Wonthaggi hospital for treatment of a sore right shoulder. He was off work for a few weeks. His employer blamed him for the accident and terminated his employment. Mr Nicholson believes a trailer fault caused the rollover [1].
[1] Mr Nicholson believes he was wrongly blamed. Stoitse’s tankers had a history of rollover accidents. On 21 August 2023 it was convicted and fined for breaches of the Occupational Health & Safety Act 2004 (Vic) in consequence of the accident
7The soft tissue injury to his right shoulder resolved but his mental health started to deteriorate.
8In September 2020, when he was suffering poor sleep and depressed mood, his GP[2] referred him to a psychologist[3] for counselling [4] and prescribed him Zoloft[5].
[2] Dr Kay Efunkanbi
[3] Moses Adepoju
[4] PCB 66 – 67
[5] PCB 65
9In the same month, an independent medical examiner, Dr Lewis, diagnosed him with an adjustment disorder with depressive and traumatisation features.[6]
[6] Dr Justin Lewis, psychiatrist, PCB 97
10Over the next year he had seven counselling sessions and was continued on Zoloft for depression, anxiety and PTSD.
11Around October 2021 Mr Nicholson got work, as a truck driver, carting chickens for Tomlins Transport.
12In May 2024, when he was not coping emotionally, Mr Nicholson consulted his GP who referred him to a psychiatrist who has treated him with antidepressants, mood stabilisers and psychotherapy for PTSD.
13Mr Nicholson has a long-standing myelopathy condition, because of a go-cart accident, in 1999. It affects his gait and causes periodic flareups of back pain.
14On 7 November 2023, he suffered an episode of lower back pain trying to get out of his truck. He called an ambulance which took him to Dandenong Hospital where he was treated for lower back pain[7] . He had about three weeks off work following[8].
[7] Monash health discharge summary, DCB 122 – 127
[8] see GP's records DCB 54 – 56
15On 16 September 2024 he was admitted to Casey Hospital, where he was hospitalised for four days, at Berwick for sciatica[9] . Within a week his back was better and he returned to work.[10]
[9] discharge summary, DCB 128
[10] GP notes DCB 50
16On 8 January 2025, another car struck Mr Nicholson’s car from behind[11]. He had a sore back and shoulders and was unable to work. His GP gave him a medical certificate for a couple of days. [12]
[11] GP notes DCB 49
[12] GP notes DCB 49
17On 31 January 2025, he resigned from Tomlin’s.
18He has not worked since.
Issue
19Mr Nicholson contends the pain and suffering consequences of his PTSD meet the narrative test for serious injury.
20The Transport Accident Commission (“TAC”) contends:
(a) Mr Nicholson has failed to disentangle the consequences of his non-compensable myelopathy; and
(b) the consequences of his PTSD are not “severe” and “long-term”.[13]
[13] Transport Accident Act 1986 (Vic) s 93(17)(c)
Evidence
21Mr Nicholson swore three affidavits and was cross examined on the hearing of the application.
22A long-time friend[14] and Mr Nicholson’s sister[15] swore affidavits and medical records and reports were tendered.
[14] Wade Smith
[15] Joanne Bydder
23Additionally, Mr Nicholson’s manager[16], at Tomlin’s Transport, signed a written statement.
[16] Steve Skrelli
24In his first affidavit[17], Mr Nicholson described water pouring into the cabin when the truck rolled over. He said he was trapped inside the cabin and feared he was going to die until a passerby rescued him.
[17] sworn 6 March 2023
25He said, initially, his main concern was a sore right shoulder. His shoulder improved but his mental state started to deteriorate. His younger brother was killed in similar circumstances. He had nightmares, at night, and flashbacks, while awake, about his brother’s accident and his own. He said he was prescribed psychoactive medication but stop taking it because it made him feel confused and distant. He said he felt anxious, depressed and upset pretty much all the time and he suffered from poor sleep and nightmares almost nightly.
26He said he got himself back to truck driving. He was a nervous, anxious and very cautious driver. At times, when ruminating over the accident, he had to stop the truck, because he was highly agitated. He kept pushing himself to work although it was very difficult. He was worried, if he could not drive a truck, he would not be able to work because he has no other training or experience. [18]
[18] Ibid [23]
27He stated his energy levels were very low and he felt unmotivated. He said he has become socially withdrawn although he continued his long time hobby of showing his terrier dogs.
28In his second affidavit[19] he stated, with modifications, particularly the timing of his shifts, he had continued working while undergoing treatment for facial skin cancers.
[19] undated
29He said he continued to experience intrusive thoughts about the accident, and its similarity to his brother’s accident, daily. He continued to be anxious when driving, especially in heavy traffic. He felt he should not be driving a truck because of his anxiety and concentration lapses but he needed to drive to earn a living. He said that while he continued showing his dogs he lacked the motivation to coordinate and prepare them, leaving that work to the breeder/handler. He said his disturbed sleep, including nightmares and flashbacks, continued. He said, prior to the accident he cleaned his home weekly and cooked for himself most nights but, since, he has relied largely on takeaway food and does not bother cleaning.
30In his third affidavit[20], Mr Nicholson said he successfully completed his cancer treatment around September 2024. He said, since July 2024, he had been attending a psychiatrist. He said, while prescribed medication had helped to marginally improve his sleep and slightly increase his mood, he continued to struggle with concentration difficulties at work and, in January 2025, he stopped driving a truck because he felt he was becoming an increasingly unsafe driver. He continued to show his dogs but still felt lonely and isolated and continued to rely on takeaway food and struggled with motivation to do household cleaning.
[20] sworn 4 September 2025
31Mr Nicholson was cross-examined.
32He said, while he has regular contact with his two sons and some friends, he catches up with them less often. He said he tends to stay home a lot more. “I just don’t go out.”[21]
[21] T 5
33He agreed he has two show dogs; one was a grand champion and is now retired, the other he continues to enter at shows, around 10 a year, although, before the accident, he would go weekly[22].
[22] T 10
34He said, because of a disability with his gait, he has never handled the dogs in competition; the dogs’ breeder has done that[23].
[23] T 8
35He agreed, while on medication, his sleep has improved and the number of nightmares and flashbacks has reduced.[24]
[24] T 11 – 12
36He said he lives alone; he lacks motivation to do housecleaning and gets his sister in to help.[25]
[25] T 13
37He denied his myelopathy interfered with his capacity for cleaning. He said he had managed to keep a tidy home, perhaps slower than a normal person, but he would get it done, until the accident.[26]
[26] T 14 and 15
38He agreed he sometimes uses a walker when he is out.[27]
[27] T 14
39He agreed he continues to drive a car; he had driven his dogs to Maffra and Bairnsdale on a 12 day trip. He said he avoids heavy traffic because it makes him anxious.[28]
[28] T 15 and 16
40He confirmed, after the accident, because of lapses in concentration [29]he was worried about being a risk to other road users but felt “forced back to work” because the TAC had reduced his weekly payments. He said he “(didn’t) know anything else but truck driving.”[30]
[29] T 23
[30] T 20
41He confirmed he did chicken karting from sometime in 2021 until January 2025. He said he had raised his safety concern with his employer who adjusted his shifts to “light traffic hours.”[31]
[31] T 21 – 22
42Mr Nicholson was cross examined about an application, which he made in April 2021, for a traffic camera services position.[32]
[32] D 80 – 88
43Mr Nicholson agreed, in questions directed to whether he had suffered injury because of a motor vehicle accident he had noted only his cervical myelopathy. He agreed he had not noted his PTSD. He also agreed he answered “no” to a question whether he had any work restrictions certified by a doctor. He agreed he answered “no” to questions whether he suffered depression, anxiety and sleep disorder.
44He agreed his answers were not a complete record of his medical history.[33]
[33] T 26
45He said, he did not mention his PTSD because he wanted to give himself a chance to get a job.[34]
[34] T 25
46He was also cross examined about a commercial vehicle driver health assessment which his GP completed for his employer in September 2024.
47He agreed his GP had noted Mr Nicholson’s mental state as “normal”.[35]
[35] DCB 91
48His GP had also recommended his “conditional” fitness to drive with a requirement for yearly review.[36]
[36] DCB 93
49Mr Nicholson agreed with the proposition his mental health was then “well-controlled” according to his GP.[37]
[37] T 29 – 30
50When asked about his spinal injury he agreed he has difficulty walking. He said he had been dealing with it “for 20 years, it doesn’t really affect me that much – I just deal with it”.[38]
[38] T 31
51He disagreed his myelopathy is his main disability. He said his main disability is his inability to concentrate and to think things through properly.[39]
[39] ibid
52He was also cross examined about an NDIS application form[40] which he completed in May 2025.
[40] DCB 95 – 121
53He agreed the application recorded his “main disability” as cervical myelopathy and recorded his PTSD as another disability.
54He disagreed he had changed his position, in his evidence, from his NDIS application. He said, because he had been dealing with his myelopathy for so long, he did not see it as a disability. He said, “the PTSD has changed my life significantly in the last five years.”[41]
[41] T 33
55He said, contrary to the contents of his NDIS application form, “the PTSD is more significant.”[42]
[42] T 34
56He agreed, in the form[43], his GP had certified his main disability as the myelopathy and his post-traumatic stress disorder as an additional disability. [44]
[43] DCB 107
[44] T 35
57He said he did not proceed with the NDIS application.
58He was cross examined about his attendance at Dandenong Hospital on 7 November 2023[45] following an incident when he was driving a truck. He agreed he called an ambulance and was taken to hospital where he was given analgesia and referred to his GP for follow-up for exacerbation of lower back pain.[46]
[45] Monash Health Discharge Summary, DCB 122 – 127
[46] DCB 122
59He agreed his GP he gave him medical certificates for time off work for about a month.[47]
[47] T 62
60He agreed there had been a gap in treatment of his PTSD between 16 October 2021 through 24 May 2024 when he requested his GP refer him to a psychiatrist.[48] .
[48] T 63
61He said he had stopped taking the anti-depressant medication, which his GP had prescribed, because he started driving trucks.[49]
[49] T 61
62He agreed, on 16 September 2024 he was admitted to Casey Hospital at Berwick, on the referral of his GP, for sciatica[50] . He said he was hospitalised for four days.[51]
[50] Monash Health Discharge Summary, DCB 128
[51] T 67
63He agreed, on 9 January 2025, a car he was driving was hit from behind and he saw his GP next day with a complaint of sore back and shoulders[52] . He said he was driving home from an appointment with his psychiatrist when the accident happened.[53]
[52] T 69
[53] T 70
64He denied the suggestion he stopped work because of his physical issues.[54]
[54] T 70
65He said, “I am not giving up work because of my physical state… I can still physically drive a truck ... Whether I can do it competently or not, mentally, I doubt it.”[55]
[55] T 68
66He said he was still under active psychiatric treatment and prescribed medication.[56]
[56] T 71
67Mr Nicholson was re-examined.
68He said his employer gave him “odd hours”, so that he could avoid heavy traffic, and generally easier work.[57]
[57] T 72
69He said the periodic back flareups generally had not stopped him driving trucks.[58]
[58] T 72 – 73
70He acknowledged, between 2021 and 2024, there was a gap in treatment of his mental health. He said during that time “I worked. I went home…. That is all I did”[59] . He said he could not be bothered seeing his friends. He said, “I just wanted … to be alone.”[60]
[59] T 73
[60] T 74
71He said, in May 2024[61] , he asked for a referral to a psychiatrist because he felt “shut off from the rest of the world (and) wasn’t sleeping”.[62]
[61] See GP notes DCB 52
[62] T 76
72He said when he felt it was too risky for him to drive because of concentration and memory problems, he told his supervisor, Steve Skrelli and the business owner, John Tomlins.[63].
[63] T 71
73His sister, Joanne Bydder[64], described Mr Nicholson as always hard-working, independent and proud and, before the accident, someone who was fun and enjoyed socialising. Since, he has lost contact with friends and has stopped cleaning his house. She said he has become withdrawn and needy. And he has changed from a fun uncle to a sad uncle to her children.
[64] affidavit sworn 20 May 2024
74His friend, Wade Smith,[65] who has known Mr Nicholson for 20 years, stated he had employed Mr Nicholson as a driver. He described him as a very hard and conscientious worker. They became friends. He stated Mr Nicholson was then outgoing and enjoyed socialising. He said, after the accident, Mr Nicholson’s personality changed. He became very withdrawn. He said Mr Nicholson told him he had very bad memories of the accident and was unsure if he could drive trucks again. Mr Smith took him out as a passenger to give Mr Nicholson the chance to get the feel of driving a truck again. According to him, on a long drive, Mr Nicholson was very nervous passenger, particularly in heavy traffic, and never asked to drive himself.
[65] affidavit sworn 20 March 2024
75Mr Nicholson’s manager at Tomlin’s transport, Steve Skrelli[66], confirmed Mr Nicholson carted chickens for the company. He said Mr Nicholson had been “upfront” about his mental health issues following the transport accident and the company had given him early shifts, to avoid peak hour traffic, and provided him with an automatic truck to reduce his stress levels. Mr Skrelli said there had been a recent occasion when Mr Nicholson had told him he had become anxious, upon seeing emergency vehicles in heavy traffic, after an accident involving another truck.
[66] statement dated 30 April 2024
Medical evidence
Treating practitioners
Dr Efunkanbi
76Dr Efunkanbi[67] has been Mr Nicholson’s treating GP since 2006 [68]. He noted, over the months following the accident, Mr Nicholson “became depressed, was anxious and fearful of driving, he was having flashbacks and nightmares about the accident.” And he was having flashbacks about his younger brother’s death in a similar truck accident. He had lost interest in driving which he loved and was worried he would never be able to return to it . N
[67] Dr Efunkanbi provided a medical report dated 10 August 2024, PCB 48
[68] Since 2006
77Dr Efunkanbi referred Mr Nicholson for counselling, and started him on antidepressants and a sedative to assist his poor sleep.
78He noted, before the accident, Mr Nicholson had no history of mental illness. In his opinion, Mr Nicholson’s diagnosis of PTSD is attributable to the accident.
79Dr Efunkanbi noted, when Mr Nicholson returned to work, after several months of therapy, he was reporting ongoing low mood, lack of motivation and not enjoying his work as he used to.
80In May 2024, when Mr Nicholson still working but not coping, Dr Efunkanbi referred him to a psychiatrist, Dr Mathur.
Dr Mathur
81Dr Mathur has been seeing Mr Nicholson at 4 – 8 weekly intervals. [69] he first examined Mr Nicholson in July 2024. He found Mr Nicholson had depressive symptoms including sadness, fatigue, feelings of hopelessness and helplessness and decreased energy, motivation, interest and concentration. He also found Mr Nicholson had PTSD symptoms which included intrusive memory about the accident and flashbacks of his brother’s accident. Dr Mathur diagnosed Mr Nicholson with PTSD, as a result of the transport accident, and treated him with psychotropic medication and psychotherapy.
[69] Dr Mathur provided a report dated 21 April 2025 PCB 51
82With treatment, Mr Nicholson made some improvement. However his symptoms of PTSD, depression and anxiety continued. Mr Nicholson told him low motivation, social withdrawal and difficulty in concentration led him to cease work on 31 January 2025[70].
[70] PCB 53
83In April 2025, Mr Nicholson reported ongoing low mood, avoiding public places, doing most of his shopping online, avoiding household chores, unless necessary, and limited social interaction with one friend, his sister and attending the odd dog show whereas before the accident he was a social and outgoing person[71].
[71] PCB 53
84Dr Mathur opined Mr Nicholson was totally incapacitated for work because of his psychiatric condition[72]. He offered a guarded prognosis for the long-term [73] .
[72] PCB 55
[73] PCB 54
Medicolegal reports
85Mr Nicholson was independently psychiatrically examined several times
Dr Lewis
86On 18 September 2020, when Dr Lewis[74] examined Mr Nicholson he gave him a vivid account of the accident. Mr Nicholson said as he was driving at approximately 80 kilometres per hour when the truck lost control and rolled onto the driver’s side. He said it skidded, sideways, for another 5 to 10 m. He said he was panicked because he could not get out of the cabin and thought he was going to die until a passerby got the passenger door opened. He said, after he was sacked, he had been struggling with anxiety and traumatisation symptoms because of the “near death experience” and flashbacks to his brother’s fatal truck accident.
[74] his report appears at PCB 89 – 100
87Mr Nicholson reported disturbed sleep, lowered mood and poor motivation. Dr Lewis concluded he was suffering an adjustment disorder with depressive and severe traumatisation symptoms. He offered a provisional diagnosis of PTSD.
88Mr Nicholson was then not working. Dr Lewis believed, because of his high levels of generalised anxiety and traumatisation, Mr Nicholson was unfit to return to driving duties[75] in his opinion , there was a very high risk of re-traumatisation if Mr Nicholson returned to work.
[75] PCB 99
89Dr Lewis described Mr Nicholson as an “open and cooperative historian.”[76]
Dr Jager
[76] PCB 94
90On 14 November 2022 another psychiatrist, Dr Jager, examined Mr Nicholson who then told him he felt anxious most of the time, and depressed and angry all the time; that he was having nightmares most nights and flashbacks, some days, to the sound of the truck door grinding on the road and the sight of the windscreen crack. Although Mr Nicholson had returned to truck driving he said he had less energy and was hypervigilant when driving. He said he had stopped taking antidepressant medication because of side-effects and could not fit in time for psychological therapy. Dr Jaeger diagnosed chronic PTSD. In his opinion, while Mr Nicholson was untreated, he was likely to have persisting symptoms. [77]
Dr Lugg
[77] PCB 82 – 86
91Dr Lugg, another consultant psychiatrist, examined Mr Nicholson on 22 January 2024. Mr Nicholson was then working. He told Dr Lugg he loved his work but, at times, he felt he should not be working because of significant distress, in traffic, and low motivation .[78]
[78] PCB 73
92To PCL – 5 testing, some of Mr Nicholson’s post traumatic symptoms were extreme [79]. His score met the DSM – 5 – TR diagnostic criteria for PTSD, with dissociative symptoms. In his opinion these findings were consistent with Mr Nicholson’s involvement in the accident.[80]
[79] PCB 69
[80] Mr Nicholson also told him he had "developed a lumbar disc problem recently" which affected his gait and lower limb strength mobility, PCB 74
93Dr Lugg noted Mr Nicholson was working “with much effort” and was functioning “with significant levels of distress”[81] . He gave a guarded opinion Mr Nicholson was fit for work. He believed, if Mr Nicholson’s symptoms worsened, he may become unfit because of safety concerns[82]
Dr Pokharel
[81] PCB 73
[82] ibid
94Dr Pokharel examined Mr Nicholson in March 2024[83] and again in July 2025.[84]
[83] DCB 5 – 21
[84] DCB 22 – 46
95In 2024, Dr Pokharel noted, despite a two-year gap in mental health treatment, Mr Nicholson had been able to persevere with full-time truck driving[85] . He also noted back pain was the primary reason for Mr Nicholson’s recent consultation with his GP[86] Mr Nicholson told Dr Pokharel his mood was not too bad but, when he saw an emergency vehicle, he became anxious and tense. He told Dr Pokharel his personality had changed after the accident. He said he drifted away from his friends. He told Dr Pokharel he had recently been using a walking frame when he left the house. He said he did not use it at home or at work.[87]
[85] DCB 11
[86] ibid
[87] DCB 13
96Dr Pokharel then believed Mr Nicholson’s mental health had improved when he got back to work and he felt Mr Nicholson had capacity for full-time employment, evidenced by his continuing truck driving work.[88]
[88] DCB 15
97When Dr Pokharel reviewed Mr Nicholson on 11 July 2025 Mr Nicholson told him he had resigned his work in January 2025 because he was making driving mistakes due to a lack of concentration. He said both his doctors were routinely advising him to stop working.
98He told Dr Pokharel he felt his mental health improved when he stopped work.
99Dr Pokharel believed Mr Nicholson was suffering from “low-grade anxiety and depressive symptoms” and “mild symptoms of psychological traumatisation”[89]. In his opinion Mr Nicholson was suffering an adjustment disorder with mixed anxiety and depressed mood in partial remission secondary to his back pain, and PTSD in remission, with residual symptoms of psychological traumatisation related to his brother’s death 16 years ago and the accident in 2020. [90]
[89] DCB 37
[90] DCB 38
100He believes Mr Nicholson’s physical injuries predominantly contribute to his residual anxiety and depression, which, in his opinion, is mild and do not affect his daily functioning[91].
[91] DCB 39
101In his opinion, Mr Nicholson’s psychiatric injury, attributable to the accident, does affect not his work capacity and has minimal to negligible impact on his domestic and leisure activities.[92]
[92] DCB 40 – 41
Findings and Reasons
102Dr Pokharel’s opinions are an outlier.
103According to his GP, Mr Nicholson had no pre-accident history of mental illness.
104His treating psychiatrist, Dr Mathur, believes he suffered PTSD, as a result of the transport accident, which has diminished his capacity for work and daily activities. His long-time treating GP agrees.
105The other made findings consistent with independent examiners made similar findings[93].
[93] Drs Lewis, Jager and Lugg
106Dr Mathur accepted Mr Nicholson stop work because of his PTSD, depression and anxiety symptoms. He believes, because of them, Mr Nicholson is unfit for any type of work. He offers a poor prognosis. Dr Efunkanbi agrees.
107The other independent examiners made findings consistent with Dr Mathur’s opinions.
108In September 2020, when Mr Nicholson was not working, Dr Lewis found he was unfit for work because of PTSD.
109In November 2022 and January 2024, when Mr Nicholson was working, Dr Jager and Dr Lugg, respectively, believed if Mr Nicholson continued truck driving he rested deterioration of his psychiatric symptoms – to a point where he would be unfit for work.[94]
[94] Lugg, PCB 73
110Because the preponderance of opinions are against Dr Pokharel’s and, because Dr Efunkanbi and Dr Mathur have the advantage of an ongoing relationship with Mr Nicholson and a history of his care, I accept their opinions in preference to Dr Pokharel’s.
111The legal principles for determination of this application are well-established.[95]
[95] TAC v Katanas (2017) 262 CLR 550, [4] – [6]
112I am required to determine whether Mr Nicholson has sustained a severe long-term mental disorder. The requirement that the psychiatric injury be “severe” is more stringent than the requirement, in respect of a physical injury, that the long-term impairment or loss of body function be “serious”[96].
[96] Mobilio v Balliotis [1998] 3 VR 833, 846
113For Mr Nicholson psychiatric injury to be held a “serious injury” it must have consequences for him that could fairly be described as more extensive than “at least very considerable” [97]
[97] Humphries v Poljak [1992] 2 VR 129, 140
114I have carefully considered all the evidence and the parties’ oral and written submissions. I have also considered the cases to which I was referred.
115Mr Nicholson impressed me as a straightforward witness. He struck me as someone who has attempted to get on with his life as best you can.
116Considering:
(a) under cross-examination, he gave answers which were consistent with the contents of his affidavits and, when confronted with certain documents, he frankly made admissions against his interest;
(b) he gave histories to various doctors, which are consistent with each other and with his evidence before the court;
(c) others have corroborated material aspects of his evidence, including, after the accident:
(i)he grew nervous and anxious about driving, and got to truck driving, because his employer accommodated his mental health issues,
(ii)he became withdrawn and sad and he lost pride in his home and interest in his friends
I conclude his evidence is credible and reliable.
117While, in a job application, in April 2021[98] , a medical assessment for his employer, in September 2024[99], and an NDIS application, in April 2025[100] , Mr Nicholson failed to mention his PTSD, or minimised its impact, I accept his explanations, in April 2021, he was out of work and anxious to put himself in the best position to get a job, in September 2024, he was pushing himself to keep working and wanted a medical clearance to continue, and, in April 2025, on his GP’s advice, he was exploring the possibility of getting NDIS assistance for his mobility problems.
[98] DCB 80
[99] DCB 89
[100] DCB 94
118Relevantly, around the same time[101] he completed an NDIS application form he submitted a total and permanent disablement insurance claim in which he disclosed his PTSD and cervical myelopathy, and stated he stopped working because of his PTSD.
[101] claim form dated 3 March 2025
119It is clear Mr Nicholson has a permanent impairment to his spine which causes him mobility problems and back pain “flareups”. He sought treatment for three episodes back pain on 7 November 2023, 16 September 2024 and 8 January 2025. On each occasion he could not work. However, he recovered and returned within a few days or a few weeks.
120I accept, for many years, he has coped with his mobility limitations and back pain flareups and, prior to the transport accident, he was able to continue to work with the spinal impairment, he was able to cook and clean home, albeit getting the job is done more slowly, and he maintained an active social life.
121I accept[102], in the months following the accident he became depressed and anxious and fearful of driving and was having flashbacks and nightmares about the accident and about his younger brother’s similar fatal accident.
[102] as he told his treating doctors and all independent examiners
122I accept, before the accident, he did not have any history of any mental illness and he enjoyed his work.[103]
[103] as Dr Efunkanbi noted, PCB 48
123I accept he pushed through work for 2 ½ years without treatment until he consulted his GP who referred him to a psychiatrist. And then, despite some improvement with treatment, he stopped work because he felt he was an unsafe driver, due to his anxiety and difficulty in concentration.
124While there was a gap in treatment between October 2021 and April 2024, I accept his explanation, when he got the job with Tomlin’s, he went off his medication because of its side effects and he stopped therapy because he could not fit it in with work; and, when he could no longer cope he asked Dr Efunkanbi for a referral to a psychiatrist.
Pain and suffering consequences of the plaintiff’s psychiatric injury
125On 29 July 2020 Mr Nicholson was involved in a distressing accident when a heavy vehicle, which he was driving, rolled over; while trapped inside the cabin he feared for his life.
126I accept, as a consequence of the transport accident Mr Nicholson sustained, and continues to suffer from, chronic PTSD, anxiety and depression with symptoms of hypervigilance, anger, irritability, anxiety attacks and social withdrawal[104]
[104] Dr Mathur, PCB 54
127I accept his long-term prognosis is guarded.[105]
[105] ibid
128I accept, because of his psychiatric condition, Mr Nicholson is unfit for work.[106]
[106] Dr Mathur, PCB 55
129I accept Mr Nicholson’s evidence about the separate nature and degree of his spinal injury and PTSD symptoms and the consequences on his activities.
130I find the consequences of Mr Nicholson’s spinal injury are a permanently disrupted gait, which limits his mobility, and periodic back pain which has stopped him from working for short periods. However, for 20 years, until the transport accident, he continued to drive trucks, he lived independently without help and he enjoyed an active social life. He had no mental health problems.
131I find the consequences of Mr Nicholson’s PTSD are as follows:
(a) I consider his experience of nightmares, flashbacks, disturbed sleep, fatigue and low motivation, his social withdrawal and motivation and concentration difficulties, for more than four years, and into the foreseeable future, to be a significant consequence.
(b) I accept he loved his job as truck driver; it was his lifetime. Because of his PTSD, he gave up his job. Loss of truck driving work, which he enjoyed and held for many years, is a very considerable setback.
(c) I accept, while he lives independently, he has lost interest in cooking and household chores, to the extent he eats more takeaway food and relies only sister for help. These are also significant consequences.
(d) I accept, prior to his PTSD, he was outgoing and socially active. I accept he has become socially with drawn, his former wide circle of friends has diminished and he gets less enjoyment showing his dogs. It is another significant consequence
132These consequences are so clearly separate from the consequences of his spinal injury that no “disentangling’ is necessary.[107]
[107] Peak Engineering Pty Ltd v VWA & McKenzie [2014] VSCA 67, [24] – [25]
133Overall, I find the consequences of his PTSD meet the narrative test of serious injury. [108]
[108] TAC v Katanas [2017] 262 CLR 550, [6]
Disposition
134Accordingly, I grant him leave to commence common-law proceedings for pain and suffering and loss of earning capacity damages.
135I will make the consequential orders.
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