Schmetzer v Transport Accident Commission [2026] VCC 4

1. The plaintiff applies for leave pursuant to s93(4) of the Transport Accident Act 1996 ("the Act"), to commence proceedings for damages arising from the injury he suffered as a result of the transport accident.
2. Section 93(6) of the Act provides:

"A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury."

3. The definition of "serious injury" as set out in s93(17) of the Act is, relevantly, as follows:

(c) severe long-term mental or severe long-term behavioural disturbance or disorder."

1. The plaintiff's case is that by reason of the transport accident, he suffered a compensable mental disturbance or disorder in the nature of a Prolonged Grief Disorder (which is a mental disorder also known as Complicated Grief, Traumatic Grief or Persistent Complex Bereavement Disorder);[1] alternatively, an adjustment disorder with disturbance in emotion.[2]
2. In relation to an application concerning sub-paragraph (c) of the definition of "serious injury", the judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of the word "severe". In that case, without suggesting the use of any particular adjective to mark the distinction, Brooking JA held that the word "severe" as used in the definition, is stronger than the word "serious".[4] Winneke P agreed with Brooking JA's reasons and further agreed that the word "severe", where used in sub-paragraph (c) of ss(17) of the Act, is a word of stronger force than the word "serious".[5] Phillips JA[6] and Charles JA[7] made comments to similar effect.
3. In the recent case of Simpson v Transport Accident Commission,[8] the Court of Appeal confirmed that for a psychiatric injury to be "severe", and thus amount to a "serious injury", it must be more than "at least very considerable".[9]
4. Applying these observations, it is clear that in order to be satisfied that the consequences of a mental disturbance or disorder are "severe", I must conclude that those consequences are "long term" and more than "very considerable" to the plaintiff.[10]
5. The Court must assess whether the injury is "serious" for the purposes of the Act, as at the time the application is heard.[11] In assessing the "consequences" of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[12] It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[13]
6. It has been held that the task of assessing the pain and suffering consequences of an injury, is largely a question of impression or value judgment.[14] This analysis must be made in accordance with the principles enunciated in Humphries and Anor v Poljak.[15]
7. In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[16]
8. The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit from his wife, Ms Sarah Schmetzer. Ms Schmetzer was not required to attend for cross-examination.
9. In addition, both parties relied upon medical reports and other material which was contained within Court Books tendered in evidence.[17]
10. I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.

1. In his affidavits, affirmed 29 November 2024 and 29 October 2025, and during his viva voce evidence, Mr Schmetzer gave evidence about the following consequences to him of the mental disturbance or disorder from which he suffers as a result of the transport accident:

(a) he continues to feel low in mood and anxious. He has a great deal of unresolved grief due to the loss of his brother. He feels plagued by a sense of guilt about the mistakes he made in his relationship with his brother;[18]

(b) since his brother's death, he has found it incredibly difficult to concentrate on the business. He has become irritable, withdrawn and overwhelmed by the challenges of running the business. He has no energy or motivation to keep the business going. The private investor has withdrawn. Various parts of the business are in the process of being wound down. He is likely to let the patent that he and his brother registered for the unique insulation product, lapse;[19]

(c) in addition to developing the business with his brother, prior to his brother's death, he had worked as a roofer. At one stage, had his own roofing company, managing numerous people;[20]

(d) he has been unable to return to his roofing business since the transport accident. He tried to go back; however, there was an accident at work with one of his younger coworkers. He decided that driving cranes was a much safer and more regulated industry. He simply could not deal with the death of another person associated with his work;[21]

(e) in around October 2021, he decided to begin working as an employee rigger and crane operator. This was due to the fact that because of his anxiety and depression, he needed to do work that was mentally easy, requiring very little focus and concentration, with little responsibility and without any management of other staff;[22]

(f) his mental disturbance or disorder has reduced his enjoyment of life and capacity to perform his activities of daily living. His confidence and self-esteem are now very low. Previously he had no problems managing fifty employees on site, but since his brother died, he has become "extremely avoidant". He doubts himself with respect to every decision that he makes. He feels that he is no longer capable of managing staff or a team;[23]

(g) he has become socially withdrawn since the transport accident. He does not like to be around people. Prior to the transport accident, he thought of himself as someone who was outgoing and friendly;[24]

(h) he has difficulty sleeping. He has to listen to meditation nightly to get himself to sleep.[25] If something happens at work, he stews on it for three or four weeks, and this will wake him up at night. He grinds his teeth at night and has strange dreams about his brother. He has also developed dental problems due to his heavy use of energy drinks that he consumes to try to combat the fatigue he experiences as a result of his insomnia;[26]

(i) he has no hobbies or activities other than cooking with his wife and taking care of his children. Prior to the transport accident, his brother and he used to enjoy wakeboarding together. He no longer does this, as it reminds him too much of his brother for him to enjoy it;[27]

(j) his libido has decreased greatly since the transport accident. The intimate side of his marriage has been seriously affected as a result. He feels less capable of being affectionate with his wife. His relationship with his wife has suffered as a result of his mental disturbance or disorder;[28]

(k) he is not the person that he was before his brother's death. He would love to get back to his old confident, motivated and engaged self;[29]

(l) he is emotional and finds that he overreacts to small things, since the transport accident. He was not reactive like this before his brother's death;[30] and

(m) since the transport accident, he struggles to be a passenger in a car. He only really trusts himself driving.[31]

1. The plaintiff relied upon one affidavit from his wife, Ms Sarah Schmetzer, affirmed on 29 October 2025. The relevant content of that affidavit is as follows:

(a) prior to the transport accident, the plaintiff and his brother used to go wakeboarding. The plaintiff used to enjoy this activity;[32]

(b) prior to the transport accident, the plaintiff was confident and dedicated to building his business. He loved building the business and enjoyed making pitches to different businesses in Australia and also overseas. He travelled to China, Singapore and Dubai for this purpose. His trip to Dubai was after the transport accident, and it did not work out. He did not follow up on the leads that he had there;[33]

(c) prior to the transport accident, the plaintiff enjoyed managing teams of people. Prior to the transport accident, the plaintiff was emotionally present and engaged. Since the transport accident, his mood is often flat. The plaintiff has become withdrawn;[34]

(d) since the transport accident, the plaintiff is no longer able to cope with the stress of running the business, sending emails, travelling, making pitches to investors or customers, or managing people. He has become extremely avoidant when it comes to the business. He dramatically cut back on the amount of time he spent at the office;[35]

(e) after the transport accident when the business started to decline, the plaintiff returned to his roofing work. However, he formed the view that roofing was dangerous after a young worker was injured on site. As a result, the plaintiff decided to change careers into crane operation;[36]

(f) the plaintiff has told his wife that he often misses building something big and visionary through Schmetzer Industries, but he finds the work of being a crane driver much less mentally taxing;[37]

(g) the plaintiff has become socially withdrawn since the transport accident; and[38]

(h) since the transport accident, the plaintiff's sleep has been continuously disturbed. The plaintiff needs to wear headphones every night when he goes to sleep, as he is listening to meditation. If he wakes up, he is paranoid that he will not get back to sleep. The plaintiff's wife knows that he suffers from poor sleep because he tells her about his lack of sleep. In addition, she is aware of him tossing and turning, as this wakes her at times. Prior to the transport accident, the plaintiff was a good sleeper.[39]

1. The plaintiff was medico-legally examined by two psychiatrists: Dr Justin Lewis in 2023 and Dr Michael Epstein in 2024 and 2025.
2. Dr Lewis diagnosed the plaintiff as suffering from an Adjustment Disorder with disturbance in emotion.
3. Dr Epstein diagnosed the plaintiff as suffering from a Prolonged Grief Disorder, also known as Complicated Grief, Traumatic Grief and Persistent Complex Bereavement Disorder in the DSM-5. Dr Epstein described Prolonged Grief Disorder as being "a mental disorder consisting of a distinct set of symptoms following the death of a family member or close friend". He said that people with Prolonged Grief Disorder are preoccupied by grief and feelings of loss to the point of clinically-significant stress and impairment, which can manifest in a variety of symptoms, including depression, emotional pain, emotional numbness and loneliness.
4. The parties agreed there is very little to differentiate the opinions of each psychiatrist.

1. There is no dispute between the parties that the transport accident occurred and that the plaintiff suffers from a mental disturbance or disorder as a result of the transport accident and the death of his brother.
2. Ultimately, both parties agreed that the that the task for this Court in this case, is to make findings as to what, as a result of this injury, are the consequences from which the plaintiff presently suffers. The Court must then assess whether those consequences could properly be described as "severe" for the purposes of the Act.
3. I note that the defendant did not submit that the plaintiff's credit was impeached in any way during the case, although there were certain matters in relation to which it became apparent the plaintiff's evidence in his affidavit material was not completely accurate. The plaintiff freely made concessions of this nature under cross-examination.
4. Overall, I considered that the plaintiff was a reliable witness and an accurate historian. Having observed him during his evidence, I also formed the view that he is an extremely stoic person, especially in relation to:

(a) his attempts to continue developing and managing the business;

(b) his attempt to return to his roofing business when the business was not doing as well as he had hoped; and

(c) his efforts to continue trying to live his life as normally as possible, modifying his activities to accommodate his mental disturbance or disorder by changing his work to a career that is much less stressful for him, but still provides a good income to support his family.

1. Having considered all of the relevant medical evidence, I am satisfied, and find, that as a result of the transport accident, the plaintiff presently suffers from a mental disturbance or disorder in the form of a Prolonged Grief Disorder, also known as Complicated Grief, Traumatic Grief or Persistent Complex Bereavement Disorder.

Is the compensable injury "long term" for the purposes of the Act?

1. Having considered the relevant reports, and in particular the reports from Dr Epstein[40] and Dr Lewis,[41] I am satisfied, and find, that the plaintiff is likely to suffer from the consequences of the injury he sustained as a result of the transport accident, for the foreseeable future. Given this, I find that the injury is "long term" for the purposes of the Act.

Are the consequences of the accident "serious" for the purposes of the Act?

1. In Haden Engineering Pty Ltd v McKinnon,[42] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff's experience of those consequences, as well as the disabling effect of the consequences on plaintiff's physical capabilities (including capacity for work) and enjoyment of life.[43] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act, is one of impression or value judgement. The weight to be attached to the plaintiff's account of the consequences experienced will depend upon an assessment of the plaintiff's credibility.[44]
2. In Kelso,[45] the Court observed that:

"... chronic pain was a prominent feature of the appellant's case. The endurance of permanent daily pain, requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a 'very considerable' consequence."[46]

3. The fact that since the transport accident, the plaintiff has been prepared to keep working, is not a matter that tells against the granting of his application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[47]

"... it would be unfortunate, and in [our] view wrongheaded, if ... such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury."

(a) the loss of a field of work that the plaintiff previously enjoyed;[48]

(b) the loss of a future field of work which the plaintiff has demonstrated an intention to pursue (where their prospects of obtaining that work were not merely speculative); [49] and/or

(c) the loss of economic flexibility in the labour market, whether or not it has been productive of actual loss as at the date of the hearing[50]

are relevant pain and suffering and/or pecuniary disadvantage consequences, to be taken into account in these types of applications.

1. It has also been held that injury to a younger person, who must live with the consequences of the injury for many years, may be considered to be more serious than the same injury suffered by an older person.[51]
2. I have already made observations about the plaintiff's demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness. I have also found that the plaintiff has been stoic in his approach to managing his injury, particularly in the form of continued attempts to keep working and to modify his life to accommodate the effects of his mental disturbance or disorder.
3. In this case, I find that similar to the endurance of chronic pain, as a result of the transport accident, the plaintiff presently endures chronic, long-term symptoms of a mental disturbance or disorder including grief, depression and anxiety. These symptoms were a prominent feature of the plaintiff's case before this Court. He deposed to those matters in his affidavits and was cross-examined about them. The evidence satisfies me, and I find, that by reason of these symptoms, many aspects of the plaintiff's daily life have been permanently and irreversibly affected as a result of the transport accident.
4. In particular, having considered all of the evidence, I find that by reason of the transport accident alone, the plaintiff suffers from the following consequences of his mental disturbance or disorder:

(a) loss of the ability to manage a large number of staff and loss of the ability to engage in a career which he previously enjoyed, namely his roofing business. The evidence satisfies me, and I find, that this career option provided an important financial "backstop" for the plaintiff during the period when he and his brother were developing the business. The evidence also satisfies me, and I find, that this business, including the managerial component of it, was intellectually stimulating for the plaintiff, in a way that his current career as a crane driver is not;

(b) loss of the ability to pursue entrepreneurial projects, due to a lack of energy and motivation, the inability to focus and concentrate and the fact that he has now become socially withdrawn and finds it difficult to interact with people. The evidence satisfies me, and I find, that to a person who described himself as having previously been "passionate" about pursuing his entrepreneurial project with his brother, the prospect of being unable to pursue any entrepreneurial opportunity in the future due to his injury, let alone to work in his chosen trade, namely his roofing business, constitutes both a significant pain and suffering consequence, and also a pecuniary disadvantage;

(c) persistent feelings of loss and grief due to the death of his brother and the unresolved issues that existed between them prior to the transport accident;

(d) loss of his previously outgoing, friendly and self-confident personality, including the loss of his ability to socialise and the loss of his self-confidence;

(e) constantly interrupted sleep, with the development of associated dental problems; and

(f) loss of libido, causing a negative impact on his intimate relationship with his wife.

1. Taking into account all of the evidence, I am satisfied, and find, that this constellation of pain and suffering consequences together with the pecuniary disadvantage caused to the plaintiff by reason of the transport accident, are consequences which are more than "very considerable" and are properly to be described as "severe". I am therefore satisfied that the consequences suffered by the plaintiff, satisfy the relevant test for "serious injury" as set out in the Act.

1. As set out above, I am satisfied that as a consequence of the transport accident which occurred on or about 15 October 2019, the plaintiff has suffered a "serious injury" in the form of a severe, long term mental disturbance or disorder, as that term is defined in the Act. The application is granted.
2. I will hear the parties in relation to the question of costs.

[3] [1998] 3 VR 833 ("Mobilio")

[8] [2025] VSCA 241 ("Simpson")

[10] See Noonan v State of Victoria [2013] VSCA 289; Mobilio; Katanas v Transport Accident Commission [2016] VSCA 140

[11] See s93(6) of the Act, which states that leave must not be given by a court unless the court "is satisfied that the injury is a serious injury". I take that expression to mean that the injury is "at the time at which the application is heard", a serious injury for the purposes of the Act

[12] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436 at 442 ("Petkovski"); Demmler v Transport Accident Commission [2018] VSCA 284 at paragraph [52]

[14] See Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592 at 628 ("Kelso"); see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]

[15] [1992] VicRp 58; (1992) 2 VR 129 at 140, per Crockett and Southwell JJ

[16] See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]

[17] Pages 3-103 and 108-150 of the Plaintiff's Court Book were marked as exhibit ("Ex") P1; pages 4-12, 22, 33, 38-42, 57-60, 130 and 141 of the Defendant's Court Book, were marked as Ex D1

[42] [2010] VSCA 69; (2010) 31 VR 1 ("Haden Engineering")

[43] Haden Engineering at paragraph [9]

[44] Haden Engineering at paragraph [12]

[47] [2008] VSCA 260 at paragraph [3]

[48] Haden Engineering at paragraph [5]

[49] Davidson v Transport Accident Commission [2015] VSCA 12 at paragraphs [29]-[32]

[50] Abbas v Transport Accident Commission [2015] VSCA 217 at paragraph [39]

[51] Hooley v Transport Accident Commission [2019] VSCA 263 at paragraph [51]