Shane Nicholson v Transport Accident Commission [2025] VCC 1690

1. Mr Nicholson contends the pain and suffering consequences of his PTSD meet the narrative test for serious injury.
2. The 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]

1. Mr Nicholson swore three affidavits and was cross examined on the hearing of the application_._
2. A long-time friend[14] and Mr Nicholson's sister[15] swore affidavits and medical records and reports were tendered.
3. Additionally, Mr Nicholson's manager[16], at Tomlin's Transport, signed a written statement.
4. In 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.
5. He 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.
6. He 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]
7. He 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 He said he has become socially withdrawn although he continued his long time hobby of showing his terrier dogs.
8. In 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.
9. He 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.
10. In 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.
11. Mr Nicholson was cross-examined.
12. He 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]
13. He 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].
14. He said, because of a disability with his gait, he has never handled the dogs in competition; the dogs' breeder has done that[23].
15. He agreed, while on medication, his sleep has improved and the number of nightmares and flashbacks has reduced.[24]
16. He said he lives alone; he lacks motivation to do housecleaning and gets his sister in to help.[25]
17. He 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]
18. He agreed he sometimes uses a walker when he is out.[27]
19. He 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]
20. He 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]
21. He 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]
22. Mr Nicholson was cross examined about an application, which he made in April 2021, for a traffic camera services position.[32]
23. Mr 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.
24. He agreed his answers were not a complete record of his medical history.[33]
25. He said, he did not mention his PTSD because he wanted to give himself a chance to get a job.[34]
26. He was also cross examined about a commercial vehicle driver health assessment which his GP completed for his employer in September 2024.
27. He agreed his GP had noted Mr Nicholson's mental state as "normal".[35]
28. His GP had also recommended his "conditional" fitness to drive with a requirement for yearly review.[36]
29. Mr Nicholson agreed with the proposition his mental health was then "well-controlled" according to his GP.[37]
30. When 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]
31. He disagreed his myelopathy is his main disability. He said his main disability is his inability to concentrate and to think things through properly.[39]
32. He was also cross examined about an NDIS application form[40] which he completed in May 2025.
33. He agreed the application recorded his "main disability" as cervical myelopathy and recorded his PTSD as another disability.
34. He 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]
35. He said, contrary to the contents of his NDIS application form, "the PTSD is more significant."[42]
36. He 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]
37. He said he did not proceed with the NDIS application.
38. He 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]
39. He agreed his GP he gave him medical certificates for time off work for about a month.[47]
40. He 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] .
41. He said he had stopped taking the anti-depressant medication, which his GP had prescribed, because he started driving trucks.[49]
42. He 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]
43. He 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]
44. He denied the suggestion he stopped work because of his physical issues.[54]
45. He 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]
46. He said he was still under active psychiatric treatment and prescribed medication.[56]
47. Mr Nicholson was re-examined.
48. He said his employer gave him "odd hours", so that he could avoid heavy traffic, and generally easier work.[57]
49. He said the periodic back flareups generally had not stopped him driving trucks.[58]
50. He 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]
51. He 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]
52. He 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].
53. His 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.
54. His 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.
55. Mr 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.

1. Dr 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
2. Dr Efunkanbi referred Mr Nicholson for counselling, and started him on antidepressants and a sedative to assist his poor sleep.
3. He 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.
4. Dr 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.
5. In May 2024, when Mr Nicholson still working but not coping, Dr Efunkanbi referred him to a psychiatrist, Dr Mathur.

1. Dr 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.
2. With 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].
3. In 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].
4. Dr 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] .

1. Mr Nicholson was independently psychiatrically examined several times

1. On 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.
2. Mr 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.
3. Mr 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.
4. Dr Lewis described Mr Nicholson as an "open and cooperative historian."[76]

1. On 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]

1. Dr 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]
2. To 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]
3. Dr 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]

1. Dr Pokharel examined Mr Nicholson in March 2024[83] and again in July 2025.[84]
2. In 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]
3. Dr 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]
4. When 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.
5. He told Dr Pokharel he felt his mental health improved when he stopped work.
6. Dr 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]
7. He 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].
8. In 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]

1. Dr Pokharel's opinions are an outlier.
2. According to his GP, Mr Nicholson had no pre-accident history of mental illness.
3. His 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.
4. The other made findings consistent with independent examiners made similar findings[93].
5. Dr 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.
6. The other independent examiners made findings consistent with Dr Mathur's opinions.
7. In September 2020, when Mr Nicholson was not working, Dr Lewis found he was unfit for work because of PTSD.
8. In 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]
9. Because 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.
10. The legal principles for determination of this application are well-established.[95]
11. I 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].
12. For 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]
13. I have carefully considered all the evidence and the parties' oral and written submissions. I have also considered the cases to which I was referred.
14. Mr 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.
15. Considering:

(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

1. While, 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.
2. Relevantly, 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.
3. It 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.
4. I 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.
5. I 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.
6. I accept, before the accident, he did not have any history of any mental illness and he enjoyed his work.[103]
7. I 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.
8. While 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

1. On 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.
2. I 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]
3. I accept his long-term prognosis is guarded.[105]
4. I accept, because of his psychiatric condition, Mr Nicholson is unfit for work.[106]
5. I accept Mr Nicholson's evidence about the separate nature and degree of his spinal injury and PTSD symptoms and the consequences on his activities.
6. I 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.
7. I 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

1. These consequences are so clearly separate from the consequences of his spinal injury that no "disentangling' is necessary.[107]
2. Overall, I find the consequences of his PTSD meet the narrative test of serious injury. [108]

1. Accordingly, I grant him leave to commence common-law proceedings for pain and suffering and loss of earning capacity damages.
2. I will make the consequential orders.

[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

[6] Dr Justin Lewis, psychiatrist, PCB 97

[7] Monash health discharge summary, DCB 122 - 127

[13] Transport Accident Act 1986 (Vic) s 93(17)(c)

[45] Monash Health Discharge Summary, DCB 122 - 127

[50] Monash Health Discharge Summary, DCB 128

[67] Dr Efunkanbi provided a medical report dated 10 August 2024, PCB 48

[69] Dr Mathur provided a report dated 21 April 2025 PCB 51

[74] his report appears at PCB 89 - 100

[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

[95] TAC v Katanas [2017] HCA 32; (2017) 262 CLR 550, [4] - [6]

[96] Mobilio v Balliotis [1998] 3 VR 833, 846

[97] Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140

[102] as he told his treating doctors and all independent examiners

[107] Peak Engineering Pty Ltd v VWA & McKenzie [2014] VSCA 67, [24] - [25]

[108] TAC v Katanas [2017] HCA 32; [2017] 262 CLR 550, [6]