1. The evidence on the application consisted of two affidavits deposed by the applicant, an affidavit by his wife, and a number of medical records and reports. In addition, the applicant was cross-examined on the hearing of the application.
2. In his first affidavit, dated 16 November 2022, the applicant, having set out his background circumstances, described how, subsequent to the accident, he began to experience involuntary muscle spasms, as a result of which his right hand had become weak and lost its dexterity. He said that the seizures would start around the neck and back, and progress throughout his body. He remained completely conscious during the seizures. The applicant stated that the ongoing tremors and weakness in his right hand had prevented him from returning to work as a tattoo artist, because he was unable to draw a straight line and he struggles to hold a pen.
3. The applicant further stated that he continued to experience seizures and fits. He was unable to predict when they will occur and how intense they will be. The fits could last up to 30 minutes and could repeat for hours. He was completely helpless during the seizures. The episodes of seizures ordinarily occurred during periods when the applicant was not active, such as when he was trying to sit down and relax after work. As a result, he constantly tried to stay active. The applicant stated that he also continued to experience symptoms of post-traumatic stress as a result of the accident, that he had difficulty with his short-term memory and found it difficult to concentrate, and that he struggled to control his anger and experienced constant frustration.
4. In his second affidavit deposed on 7 August 2023 (one month before the hearing of the application), the applicant stated that he continued to experience involuntary muscle spasms and seizures, which occurred with varying intensity at least twice each week. He said that although the frequency and intensity of the seizures fluctuated, they continued to occur without warning and could last up to 30 minutes. During such an episode his hands continued to tremble and shake. The seizures usually started around the neck, following which his head would jerk, and the seizures then spread to his back and progress throughout his body. The applicant's legs became weak when he had a seizure, and he could not stand without supporting himself. He also found it difficult to sleep after he had a seizure.
5. Although the applicant was unable to predict the seizures, he found that they ordinarily occurred during the evening when he was trying to relax and spend time with his wife. The applicant continued to work fulltime in traffic management, but his right hand remained weak and lacked dexterity. As a result, he had not been able to return to work as a tattoo artist. He continued to consult his general practitioner who prescribed Venlafaxine (225mg per day) and Clonazepam (500mg per day).
6. In cross-examination, the applicant said that he was happy in his current position as a team leader of a traffic control team, and he understood that his employers were pleased with his performance. The work involved him supervising and ensuring the safety of the public where roadworks are being carried out. As a result, he was required to travel around the Gippsland area, and he had been as far east as Sale. The applicant agreed that his condition was much better when he was performing activities such as riding his motorbike and when he was working, because at those times his concentration was engaged.
7. The applicant confirmed that he had participated in a number of 'poker runs' with his friends, which cover a couple hundred kilometres each. In addition, he would occasionally ride his motorcycle out in the country, and his wife travelled with him from time to time. The applicant agreed that if he thought there was any risk in having to drive for half an hour or three-quarters of an hour to work and back as a result of seizures, he would not take that risk. Nor would he ride his motorcycle if he thought there was such a risk. In his work he was ordinarily required to drive to different locations in the country, but once or twice each week he was also required to drive to Melbourne. Such a trip would take about one hour. He agreed that the doctors have not suggested that he should cease driving because of his tremor condition.
8. The applicant confirmed that his tattoo business had ceased in 2013 when he was undergoing a distressing divorce from his second wife. He also agreed that the only income that he declared on his tax return for the year ending 30 June 2016 was income that he had earned from cleaning in the previous 12 months. He had earned 'very little' income from conducting any tattooing. He said that he had taken on work part-time as a cleaner because he was struggling to have sufficient work as a tattooist. The applicant also confirmed that he had a long-standing history of depression dating back to the early 1990s, when he was diagnosed with diabetes.
9. In respect of his current condition, the applicant agreed that he had informed Dr Howell, in October 2021, that he had not had any seizures 'for ages', and that he occasionally had a shaky hand 'but that's about it'. He also told Dr Howell that his mood was back to normal. When the applicant saw Dr Doherty on behalf of the respondent on 29 May 2023, he told Dr Doherty that his last seizure was some time ago.
10. The applicant further confirmed that when he saw Professor Stephen Davis, a neurologist, on 1 July 2022, he told Dr Davis that the condition was under quite good control by using relaxation techniques. Similarly, in a telephone consultation with Dr Faiza Akbar on 15 December 2022, he said that he had normal self-esteem and mood, and that there was no stress at work. The applicant agreed that at the time of the hearing of the application the only medication that he was taking for the tremor condition was Clonazepam.
11. In re-examination, the applicant said that he was experiencing tremors in his hands on most days when he was not engaged in doing anything which would focus his concentration. He said that, in fact, every day, at some time, he would experience a few hand tremors. He also said that at least once each week the tremors would involve his whole body, so that he had no control over anything. The applicant also said that, if he ran out of Clonazepam, he started having 'full blown' seizures.
12. The applicant's wife, Leanne Simpson, deposed a short affidavit in support of the applicant's case. The applicant and Mrs Simpson commenced their relationship in 2013, and they married in 2016. Mrs Simpson stated that the applicant had never recovered from the motorcycle accident. He continued to experience involuntary muscle spasms and seizures at least twice each week, and his hands always trembled and shook most of the time. When the applicant was having a seizure, he struggled to support himself. He began to shake, and often had small micro seizures and longer seizures that lasted up to 20 to 30 minutes. The seizures occurred when the applicant was resting or not busy. In addition, the applicant's right hand remained weak and lacked dexterity. As a result, he was unable to return to work as a tattoo artist, which upset him greatly. Mrs Simpson stated that the injuries sustained by the applicant continued to have a significant impact on him.

1. As we have noted, the medical evidence consisted of reports of a number of practitioners who had either treated or examined the applicant.
2. Dr Jabeen first saw the applicant on 8 September 2016. The applicant presented with twitches in his back which then gradually became whole-body jerks. When Dr Jabeen examined the applicant on 17 January 2023 for his VicRoads licence renewal, he was then stable and reported to be doing well. He told Dr Jabeen that he felt the twitches sometimes but only at night mildly. Dr Jabeen diagnosed that the applicant suffered psychogenic non-epileptic seizures with post-traumatic stress disorder ('PTSD'). The applicant was then taking Clonazepam 0.5mg when needed, and his condition was quite stable.
3. As mentioned, the applicant attended St Vincent's Hospital on 12 September 2017. He was examined by Dr Richard Peppard who expressed the view that the applicant probably had psychogenic seizures/involuntary movements.
4. In January 2020, Dr Jabeen referred the applicant to Dr Gurvinder Kalra, a consultant psychiatrist. The applicant told Dr Kalra that he had experienced three major discrete depressive disorders. The first occasion was at the time that he was diagnosed with diabetes in the early 1990s, and the second occasion was in 2009 when he learned of his second wife's extramarital affair. The third episode followed his motorcycle accident in September 2016. Dr Kalra considered that the applicant presented with a clinical picture of a recurrent depressive disorder with three major depressive episodes. The current episode appeared in the context of his motorcycle accident in September 2016, and the applicant's referral to Dr Kalra had been instigated by increased suicidal ideations experienced by the applicant during the previous few months. On review, the applicant presented as reasonably settled and he felt safer within himself from his suicidal thoughts.
5. The applicant was also referred to Dr Anne Howell, a clinical neuropsychologist, for psychological assessment and treatment of psychogenic non-epileptic seizures. As noted, the applicant saw Dr Howell on four occasions, twice in November 2019, and once each in February and March 2020. Over the course of the sessions, Dr Howell noted that anxiety and fluctuating blood sugar levels were the main issues for the applicant, as well as his functional neurological symptoms. On the fourth visit, the applicant reported that he had engaged well with the psychiatrist. The applicant cancelled his next scheduled appointment for 27 March 2020. When Dr Howell contacted the applicant's wife, she was informed that the applicant had been making good progress, and that he was 'in a good place mentally' without any mental health issues. Subsequently, Dr Howell saw the applicant for a fifth session on 20 October 2021, in order to provide a report to VicRoads for the applicant's driver's licence. The applicant told Dr Howell that he had not experienced any seizures 'for ages'. He occasionally had a shaky hand. He was unable to say when he had last had a seizure. His mood was back to normal.
6. As noted, the applicant was examined by Professor Stephen Davis, a neurologist, on behalf of the respondent, on 1 July 2022. The applicant told Professor Davis that the jerks that he experienced did not occur when he was concentrating on driving or riding his motorbike. He said that they were not a problem at work and that nothing untoward occurred while he was using his mind. Rather, the jerks became evident when he was relaxing. He said that he suffered a seizure 'once in a blue moon', the last of which had occurred a few months previously. The applicant described his mental state as being good and he denied having depression. On examination, Professor Davis did not detect any abnormality, and noted that there was no evidence of spasticity, radiculopathy or any motor dysfunction in the upper or lower limbs.
7. Professor Davis concluded that the applicant had a functional neurological disorder that seemed to be under good control with a combination of relaxation techniques taught to him by the neuropsychologist and the occupational therapist, and medication consisting of Clonazepam. There was no evidence of any neurological disorder or neurological sequelae of the accident.
8. The applicant was also examined by Dr Matthew Tagkalidis, a consultant psychiatrist, at the request of the applicant's solicitors. The first examination took place on 12 December 2022. The applicant told Dr Tagkalidis that he was currently experiencing some ongoing hand twitching on a variable basis, which became generalised but 'not full-blown as much'. He said that he currently felt quite well in his mood. The applicant confirmed that he first became depressed in the 1990s after he was diagnosed with diabetes, and on a second occasion in 2009 when he learned that his second wife had been unfaithful to him.
9. Dr Tagkalidis concluded that the applicant was suffering from a Conversion Disorder (otherwise known as a Functional Neurological Disorder) which had partially improved with time. The applicant had features of traumatisation and an Adjustment Disorder with Depressed Mood in the two-year period following the accident, but those conditions had abated. Dr Tagkalidis considered that the applicant had been functioning well in his life before the accident, and that the resultant injury had had a substantially detrimental effect on his functioning and his emotional wellbeing, which had essentially abated in the previous two years. He considered that the applicant's psychiatric condition had substantially stabilised, and it was permanent. The only functional issue that the applicant had was that he was unable to return to work as a tattooist in view of the intermittent nature of the symptomology which was lingering.
10. In his second report dated 20 July 2023, Dr Tagkalidis expressed similar views. He again concluded that the applicant was currently suffering from a Conversion Disorder which was partially abated. He confirmed that the Adjustment Disorder with Depressed Mood had abated with time and with the applicant commencing in his current workplace role as a team leader.
11. Finally, the applicant was examined on behalf of the respondent by Associate Professor Peter Doherty, a consultant psychiatrist, on 29 May 2023. The applicant told Associate Professor Doherty that his seizures had settled with the use of Clonazepam, but that he still suffered 'a good seizure' about once each week. He told Associate Professor Doherty that he was not worried about having a seizure in public. He also said that he was fairly happy, although he had suffered depression. He told Associate Professor Doherty that the last seizure occurred some time ago. Previously he had experienced a seizure every weekend when it would affect his hands and arms, and he would get twitches in his head.
12. Associate Professor Doherty noted that the consistent diagnosis concerning the applicant's abnormal neurological findings was that of a functional neurological disorder. On examination, the applicant had no objective signs of any psychiatric condition. Associate Professor Doherty did not consider that the applicant had PTSD. He had suffered recurrent depressive disorders both before and after the accident. Associate Professor Doherty also noted that the applicant had been working fulltime as a traffic controller for the previous five years. His employment had not been affected by any psychiatric condition and he managed long shifts adequately. Associate Professor Doherty also noted that the applicant was riding a motorbike and he continued to enjoy doing so. His wife accompanied him as a pillion passenger, which suggested that the applicant did not have any concern of a sudden neurological event. Associate Professor Doherty considered that there was no current significant interference by his condition in the applicant's domestic, recreational or leisure activities. In respect of the applicant's prognosis, Associate Professor Doherty stated that the natural history of functional neurological disorders is related to stress, and that they come and go as reactions to stress.

1. The judge commenced her reasons by setting out the applicable legal principles relating to the application, and summarising the evidence and submissions by each party. In doing so, the judge noted that the respondent accepted that the applicant was a credible and reliable witness who was suffering from a Conversion Disorder, ongoing hand twitching and pseudo-neurological symptomology. However, the respondent disputed that the injury was long term or that the consequences of the injury were severe.[4] The judge consequently concluded that the applicant was suffering from a Conversion Disorder, a functional neurological disorder, with ongoing hand twitching and pseudo‑neurological symptomology.[5]
2. In considering the evidence, the judge formed the view that while the applicant's symptoms had abated and were no longer as extreme as they once were, he did continue to experience intermittent tremors. The judge noted that the applicant referred to having experienced one tremor that lasted three days, and that he had no control over anything when he was experiencing a tremor. The judge accepted that that experience had occurred on some occasions.[6] The judge found that not all the tremors experienced by the applicant were of the same severity. Her Honour also formed the view that the applicant's seizures had abated. He continued to experience tremors once per week, which were at least mild in severity, and which persisted on average for 30 minutes. The judge also accepted that the applicant might have experienced a minor degree of pain in his shoulder as a result of the tremors and twitches. However, any issues with the applicant's shoulder were 'largely unrelated' to his Conversion Disorder.[7]
3. The judge further considered that the increase in the applicant's use of Effexor was due at least as much to reasons unrelated to the transport accident. The Effexor medication was not employed to deal with the symptoms of the Conversion Disorder, but rather, to address the applicant's anxiety and depression. Accordingly, her Honour did not take into account the prescription of Effexor in her assessment of whether the consequences of the applicant's injuries are severe.[8]
4. The judge noted that at the time of the accident, the applicant was working part-time as a cleaner, and that he had not worked as a tattoo artist since 2013. Her Honour accepted the submission by the respondent that the evidence did not allow for a conclusion that the applicant would have returned to tattooing.[9] Her Honour found that any inability of the applicant to work as a tattoo artist was not a consequence of the transport accident.[10]
5. In considering the personal consequences to the applicant as a result of the accident, the judge noted that the applicant's impairment had had minimal effect on his relationship with his wife. The applicant did not claim that the transport accident had significantly impacted his sleep. Her Honour was satisfied that there had been a moderate impact on his social life, but there had not been any significant impact on the applicant's ability to perform his activities of daily living. The judge noted that the tremors did not affect the applicant when he was riding his motorcycle or driving to work.[11]
6. The judge found that the applicant's symptoms had abated and that they were presently intermittent and not as extreme as they once were. The applicant was taking one tablet per day, when needed, of Clonazepam for his tremors.[12] The judge repeated her conclusion that any inability of the applicant to work as a tattoo artist was not a consequence of the transport accident. The applicant had already obtained alternative employment as a cleaner, and he had continued in employment since the transport accident and obtained new qualifications in traffic management, which he enjoyed.[13] The judge also considered that the transport accident had had only a minimal impact on the applicant's social life.[14]
7. The judge concluded:

In assessing the consequences of the plaintiff's injuries, I have first assessed them subjectively. I do not consider the plaintiff's injury constitutes a severe long-term mental or severe long-term behavioural disturbance or disorder. The subjective consequences to the plaintiff, while considerable, do not rise to the level of at least very considerable or substantial.[15]

1. The judge further considered whether, when viewed objectively against the range of comparable cases, the consequences to the applicant of his injuries were severe. The judge noted that the applicant is still able to work, and that any inability to work as a tattoo artist is not a relevant impairment consequence. The applicant was then earning considerably more than before the transport accident in an occupation that he was enjoying.[16] None of the medical practitioners considered that it was necessary for the applicant to cease driving.[17] The applicant drove long distances on a daily basis for work, he was a responsible person who took his job and relationship seriously, and he agreed he would not take a risk and expose himself to danger if his tremors had such an effect. Accordingly, the fact that the applicant had not limited his driving weighed against the consequences of his injury being 'severe'.[18]
2. In conclusion, the judge stated:

The plaintiff has not sustained a serious injury. I am satisfied the nature, symptoms and consequences of the injury, are not subjectively 'severe' for the plaintiff. Even if they are, when assessed objectively, the mental or behavioural disturbance or disorder does not meet the requisite statutory test of being 'severe' when compared with the range or 'spectrum' of comparable cases.[19]

1. In support of ground 1, counsel for the applicant noted that the judge accepted that as a consequence of the transport accident, the applicant had continued to suffer from a Conversion Disorder, a functional neurological disorder, ongoing hand twitching and pseudo-neurological symptomatology. Further, the judge accepted that the symptoms of those conditions included: involuntary muscle spasms and tremors; the applicant's hand has become weak and lost its dexterity; when the seizures occur they progress throughout the applicant's entire body, during which the applicant is conscious; and he experiences periodic twitching and headaches. Counsel noted that the applicant had suffered from those symptoms for a period of seven years and the impairment consequences of his condition are long term. The applicant has continued to experience some form of tremor at least once each week, and the tremors are at least mild in severity and persist for an average of 30 minutes. In addition, the applicant is required to take one tablet of Clonazepam each day as a result of the seizures.
2. In particular, counsel noted that the judge acknowledged that the applicant had suffered a number of impairments as a result of the Conversion Disorder that he sustained in consequence of the transport accident, which included: he continued to experience seizures and fits; he experienced involuntary muscle spasms twice per week which could last for hours; when the applicant experienced involuntary muscle spasms, his legs shake and are weak; the only method available to the applicant to alleviate the symptoms is to try to release tension in his muscles; in addition to the seizures, the applicant continues to experience post-traumatic stress as a result of the transport accident; before the accident, the applicant had been taking 75mg of Effexor, however, the dose was subsequently increased to 225mg; the ongoing hand twitching, jerking and shaking and pseudo‑neurological symptomatology of the applicant's condition has resulted in impairment consequences which are a long-term injury, and which are far-reaching; the applicant's right hand has become weak and lost its dexterity; when the seizures occur, they progress throughout the applicant's entire body, during which he remains conscious; and the applicant is required to take Clonazepam daily to assist him to cope with the ongoing symptoms and to reduce the frequency of the seizures and tremors.
3. Counsel for the applicant submitted that the judge failed to take into account each of the symptoms suffered by the applicant as a result of the disorder, and, in particular, her Honour had failed to take into account the cumulative impact of those symptoms and the consequences suffered by the applicant. Counsel submitted that while the applicant has resumed work as a traffic controller, his application should be treated no less favourably because he has demonstrated strength of character in obtaining employment and continuing it, notwithstanding his condition.
4. In response, counsel for the respondent noted that, contrary to the applicant's submission, the judge did correctly identify the symptoms of the applicant's Conversion Disorder, and her Honour properly assessed the impact that the applicant's injury had on him as a whole, in particular, by considering how the injury had affected him as he was and how he would likely have been if the injury had not occurred.
5. Counsel further submitted that the judge properly considered the relevant matters which included the following. The judge noted that the applicant had not worked as a tattooist since about 2013, and that at the time of the transport accident on 2 September 2016, he was working as a part-time cleaner. There was no evidence that the applicant had earned any income from tattooing in the 12 months that preceded the transport accident. Further, at the time of the application, the applicant was a 65‑year‑old man who had successfully retrained in a traffic management career, which required him to drive long distances and which he enjoyed and for which he was well remunerated. The remuneration earned by the applicant in that capacity exceeded his previous earnings in the tattooing industry. Accordingly, it was submitted that it was open to the judge to find that the facts did not permit a conclusion that the applicant would have returned to work as a tattooist if the injury had not occurred.
6. Counsel for the respondent further noted that, as found by the judge, the applicant's physical symptoms of tremors and seizures had abated and they were no longer as extreme as they had previously been. The applicant did not experience those symptoms when he was working or when he was active, and they only occurred while he was relaxing. The evidence revealed that he had not experienced seizures for some time. His hand tremors were not such as to interfere with his ability to drive or ride vehicles safely, and they did not interfere with his capacity to work, to sleep, or to perform activities of daily living. The only medication taken by the applicant was one tablet of Clonazepam per day, and there was no evidence that that medication caused the applicant any adverse side‑effects.
7. Counsel further submitted that the medical evidence consistently supported the proposition that the applicant's condition had significantly abated in the previous 12 months. In that respect, counsel referred to the opinions expressed by Dr Howell, Dr Jabeen, Dr Tagkalidis and Associate Professor Doherty.
8. Counsel for the respondent submitted that in considering whether the applicant's Conversion Disorder met the narrative threshold test, the judge was required to give weight to the qualifying word 'severe' as being of stronger or more stringent force than 'serious'. It was submitted the judge correctly examined the impact of the injury on the applicant as a whole by considering the consequences of the Conversion Disorder, and comparing them with how the applicant would have been had the injury not occurred.
9. Accordingly, it was submitted that taking into account the entirety of the evidence, the judge was correct to find that the applicant had not discharged the onus of establishing that the consequences of the Conversion Disorder could properly be described as 'severe'.

1. Ground 1 asserts that the judge erred in concluding that the impairment consequences of the applicant's injury do not meet the requisite statutory test of being 'severe' for the purposes of paragraph (c) of the definition of 'serious injury' in s 93(17) of the Act.
2. It is now established that the correctness standard is the applicable basis of review on an appeal challenging the decision of a judge to refuse leave to a proceeding claiming damages in respect of a serious injury.[20] That standard requires the Court of Appeal to conduct a real review of the evidence and of the judge's reasons to determine whether the judge erred in fact or law in determining that the psychiatric injury sustained by the applicant was not a serious injury.[21] In the present case, therefore, the question is whether the judge was correct to determine that, for the purposes of s 93 of the Act, the applicant has not sustained a severe long-term mental or severe long-term behavioural disturbance or disorder.
3. For the purposes of determining that question, the requirement that the psychiatric injury be 'severe', in paragraph (c) of the definition of 'serious injury' in s 93(17), is more stringent than the requirement, in respect of a physical injury, that the long-term impairment or loss of body function be 'serious' for the purposes of paragraph (a) of that definition.[22] In determining whether a physical injury satisfies the test of a 'serious long-term impairment or loss of a body function' for the purpose of paragraph (a), the injury, when judged by comparison with other cases in the range of possible impairments or losses, must be one which can be fairly described as at least 'very considerable' and certainly more than 'significant' or 'marked'.[23] It follows that in order that the applicant's psychiatric injury be correctly held to be a 'serious injury', it must have consequences for the applicant that could fairly be described as more extensive than 'at least very considerable'.
4. As the primary judge noted, in determining whether the applicant's mental and behavioural disturbance or disorder was 'severe', the applicable test is one described as a narrative test, which involves a two-stage process, namely:

(1) an assessment whether the nature and symptoms of the applicant's disorder, and the consequences of the disorder, were, subjectively for the applicant, 'severe'; and

(2) a determination whether the injury as thus assessed is objectively 'severe' when compared with the range or 'spectrum' of comparable cases.[24]

1. Applying those principles, the starting point is that, as was common ground and was accepted by the judge, as a consequence of the transport accident in which he was involved on 2 September 2016, the applicant sustained, and continues to suffer from, a Conversion Disorder which is a psychiatric disorder involving involuntary muscular spasms and associated pseudo-neurological symptomology. The critical question is whether the judge was correct to determine that, taking into account the nature and symptoms of the applicant's disorder, it could not be assessed as being 'severe' in terms of the principles which we have outlined.
2. In considering the issues raised under ground 1 of this application, it must be noted that the judge made a number of factual findings which have not been put in issue on this application. Thus, the critical question is whether, based on those findings, the judge was correct to determine that the applicant's psychiatric condition could not be characterised as being 'severe' for the purposes of paragraph (c) of the definition of serious injury.
3. First, and importantly, the judge concluded that the applicant's symptoms had abated and that they were no longer as extreme as they once were. Her Honour accepted that the applicant continued to experience tremors once each week which were at least mild in severity. Those tremors would persist for on average 30 minutes, although at times they might continue for a longer period.[25]
4. In that regard, as noted by the judge, subsequent to the injury, the applicant had obtained new qualifications, and he had gained and continued in employment as a team leader in traffic management. Her Honour noted that the applicant enjoyed that work and in doing so he was able to spend more time outdoors. In particular, the applicant did not experience any problem with his symptoms while undertaking his work, and he has been earning more remuneration after the transport accident than he earned before it.[26]
5. Part of the applicant's claim was that, as a result of the accident, he would not be able to return to his previous occupation in tattooing, in which he last worked in 2013. The judge, however, concluded that the evidence did not permit a finding that the applicant would at some time have returned to tattooing, if the accident had not occurred.[27] Thus, the applicant has not sustained any disability or difficulty in his income earning capacity as a result of the injury that he sustained in the motor vehicle accident. Further, as concluded by the judge, the applicant has enjoyed working in his new occupation, and that it has enabled him to earn better remuneration than he did before the transport accident.
6. In that respect, it is relevant also that the applicant's disorder has not interfered with his capacity to ride a motorcycle or drive a motor vehicle. As noted by the judge, the applicant has found working in the country to be peaceful, and despite being required to drive long distances between Melbourne and Drouin for work, he has enjoyed driving.[28] The applicant's tremors have not occurred, or caused him any difficulty, while he is riding his motorcycle or while he is driving to work. Thus, her Honour concluded that, as a consequence of the injury sustained by the applicant in the accident, he has not suffered any inability to drive a motor vehicle or a motorcycle.[29]
7. In terms of the applicant's personal life, the judge made a number of findings that are relevant. In particular, her Honour noted that the applicant's impairment consequences as a result of his injury have been of 'minimal effect' on his relationship with his wife, that he and his wife are a close couple and they enjoy a happy marriage.[30] The applicant did not claim that the transport accident had significantly impacted his sleep and apparently he has continued to sleep well.[31] Further, the applicant's injury has not had any significant impact on his ability to perform his activities of daily living.[32] The judge did acknowledge that the involuntary spasms experienced by the applicant have had a moderate impact on the applicant's social life.[33] Finally, it is relevant that the only medication, which the applicant has been taking after the transport accident for his tremor condition, was Clonazepam.[34] The judge accepted that, although prescribed as needed, the applicant requires this medication daily to prevent seizures.[35]
8. As we have noted, it was not in issue that as a result of the motorcycle accident which he was involved on 2 September 2016, the applicant has suffered a genuine psychiatric disorder, which involves him experiencing involuntary muscular spasms on a weekly basis. That condition, which manifests itself without warning while the applicant is relaxing, must materially interfere with his capacity to enjoy life. Nevertheless, taking into account the findings by the judge to which we have just referred, it is apparent that the applicant, nevertheless, has retained a significant capacity to function effectively both in his working life and in his personal life.
9. Taking into account those retained capacities, it must be concluded that the judge was correct to determine that the psychiatric disorder sustained by the applicant as a consequence of the transport accident does not constitute a severe long-term mental or severe long‑term behavioural disturbance or disorder for the purposes of paragraph (c) of the definition of serious injury in s 93(17) of the Act.
10. It follows that ground 1 of the application for leave to appeal must fail.

1. Counsel for the applicant commenced his submissions in support of ground 2 by reference to the principle, stated by this Court in Taylor v Transport Accident Commission,[36] that in order for causation to be established, it is sufficient for a plaintiff to prove that the transport accident was a cause of the relevant injury.
2. Counsel submitted that the judge failed to apply that test, and accordingly, incorrectly omitted to take into account three of the consequences of injury to the applicant, namely:

(1) The judge determined that any issues concerning the plaintiff's shoulder were 'largely unrelated to his Conversion Disorder'.[37]

(2) The judge determined that, on the balance of probabilities, the increase in the plaintiff's use of Effexor 'was at least as much due to reasons unrelated to the transport accident as it was because of the transport accident'.[38]

(3) The judge incorrectly stated that the applicant's symptoms of anxiety and depression 'did not form part of the plaintiff's claim'.[39]

1. It was submitted that once the judge had concluded that the applicant suffered from a psychiatrically-based Conversion Disorder, it was not permissible for her Honour to disentangle the nature of the condition in the manner in which she did. Counsel relied on the dicta of this Court in Forssell v CIP Constructions (Australia) Pty Ltd,[40] and Noori v Topaz Fine Foods Pty Ltd,[41] in support of the proposition that the applicant is entitled to rely on any consequences that may have arisen due to an alternative medical condition, which might include his pre-accident symptoms of anxiety and depression. Alternatively, it was submitted that the judge failed to properly consider the anxiety or depression, or symptoms of those conditions, that the applicant had continued to experience as a result of his Conversion Disorder.
2. Counsel submitted that if the judge had considered the various consequences and symptoms, which her Honour excluded, then the consequences to the applicant as a result of his disorder would fairly have been described as being very considerable or substantial.
3. In response, counsel for the respondent submitted that the judge was correct not to be satisfied that the applicant's depression and anxiety, or any aggravation of it, and his shoulder pain, had been caused by the transport accident.
4. First, it was submitted, the judge's reasons must be considered in the context of the manner in which the applicant conducted his case. The particulars of injury, filed by the applicant in support of the application, made no reference to anxiety or depression or any aggravation of it, or to shoulder pain. His affidavits did not seek to assert that he presently was suffering symptoms of those conditions. Only a passing reference was made to them in his first affidavit. In the conduct of the case before the judge, there was scant reliance placed on any aggravation of depression, anxiety or his left shoulder pain.
5. Secondly, it was submitted that there was a lack of medical support for any claim for present aggravation of anxiety, depression or left shoulder symptoms. The judge carefully, and in detail, analysed the evidence concerning those symptoms, and determined that they were not relevantly caused by the accepted Conversion Disorder. Further, even if they had formed part of the applicant's case, in view of the scant reference made to them in the applicant's evidence and in the conduct of his case, those symptoms would not be sufficient to satisfy the requirement that the applicant's long‑term behavioural disorder or disturbance be severe. Accordingly, it was submitted, if the judge erred in her consideration of the applicant's depression, anxiety or shoulder pain, that error could not have been sufficient to vitiate her Honour's conclusion.

1. The principles, that apply to the issue of causation, in an application under s 93 of the Act, are well-settled. For the purposes of s 93, it is sufficient that the transport accident was a material cause of the injury relied on by the applicant; it is not necessary for the applicant to establish that the transport accident was the sole, or principal, cause of the injury.[42] Where the applicant has suffered from a pre‑existing psychiatric condition that was triggered or exacerbated by the accident, for the purposes of paragraph (c) of the definition, it is not necessary for the applicant to disentangle the consequences of the applicant's pre-existing psychiatric condition.[43]
2. In considering ground 2, the first, and important point, to note, is that, in the particulars of injury filed in the application, the applicant did not specify that the severe long-term mental or severe long-term behavioural disturbance or disorder relied on by him included either the shoulder symptomatology, or anxiety and depression.
3. Further, it is apparent that, in any event, the judge did not disregard the evidence given by the applicant, in cross-examination, that as a consequence of the muscle spasms, he experienced aches and pains around his neck and shoulder. The judge accepted that the applicant might have experienced a 'minor degree of pain' in his shoulder 'as a result of' the tremors and twitches that he experienced.[44] In that context, the judge's conclusion that any issues with the applicant's shoulder were 'largely' unrelated to his Conversion Disorder, did not involve the judge entirely disregarding those symptoms. Rather, as her Honour stated, the symptoms were of minor pain, and that most of any issues that the applicant had with his shoulder were not connected with the Conversion Disorder.
4. As the respondent has pointed out, the applicant placed little emphasis on the symptoms of depression and anxiety, or any other psychiatric issues, as part of his claim to have suffered a serious psychiatric injury. The focus of his first affidavit was his experience of involuntary muscle spasms and the treatment that he received for that condition. He made one reference to being prescribed an 'increased dose' of antidepressant medication following the transport accident, and he also noted that he continued to experience symptoms of post-traumatic stress as a result of the transport accident. In his second affidavit, that was filed one month before the hearing, the applicant made no reference to suffering depression or anxiety. In her affidavit, the applicant's wife also made no reference to any psychological or emotional disorder suffered by the applicant.
5. The paucity of evidence on that issue is quite understandable. As noted, Dr Kalra, the consultant psychiatrist to whom the applicant was referred, reported, in January 2020, that on review the applicant had presented as reasonably settled. No further report was obtained by Dr Kalra. When the applicant cancelled his scheduled appointment with Dr Howell on 27 March 2020, and Dr Howell contacted the applicant's wife, the latter stated that the applicant had been making good progress, and that he was 'in a good place mentally' without any mental health issues. When Dr Howell next saw the applicant on 20 October 2021, his mood had returned to normal. When Professor Davis examined the applicant on 1 July 2022, he told Professor Davis that his mental state was good and he denied having depression. When Associate Professor Peter Doherty, a consultant psychiatrist, examined the applicant in May 2023, the applicant said that he was feeling quite happy, although he suffered some depression. In July 2023, Dr Tagkalidis, a consultant psychiatrist, also noted that the applicant's adjustment disorder with depressed mood had abated with time and since the applicant had started in his current workplace role as a team leader.
6. Taking those matters into account, and particularly in view of the circumstance that the applicant's anxiety and depression were not part of the applicant's claim, the judge was correct in not taking that condition into account in determining the applicant's application.
7. Further, and in any event, given the limited nature of the symptoms of anxiety and depression complained of by the applicant in his evidence, and the limited psychiatric evidence that was adduced in respect of it, if the judge had taken those matters into account, they could not have been sufficient to have resulted in a conclusion that the psychiatric disorder of the applicant, sustained as a consequence of the accident in September 2016, was a serious injury for the purpose of s 93(17) of the Act.

1. The applicant filed a written case in support of ground 3. However, as noted,[45] on the hearing of the application, counsel for the applicant expressly abandoned reliance on ground 3. In our view, counsel for the applicant was correct in doing so. However, in deference to the careful, thorough and clear reasons provided by the judge, we consider it is appropriate to address the issues raised in the applicant's written case in respect of ground 3.
2. In the written case in support of ground 3, counsel for the applicant submitted that the reasons of the judge did not clarify or analyse what the applicant had lost as a result of the Conversion Disorder sustained by him. In particular, it was submitted that the judge did not acknowledge that the applicant's continued symptoms, which her Honour had accepted, occur for at least 30 minutes each week. Rather, the judge's reasons addressed and outlined the various activities in which the applicant had been able to participate.
3. Counsel for the applicant submitted that, in that respect, the judge had placed an excessive reliance on the capacities that the applicant had retained, while failing to address his ongoing symptoms and consequences. In particular, the judge had not taken into account the impact of the injury on the applicant's ability to spend time with his wife without either suffering a seizure or worrying about whether he would suffer such a seizure. Further, the judge did not analyse the requirement that the applicant take daily medication, nor the associated restrictions of his right hand in undertaking daily tasks.
4. In the written case in response, counsel for the respondent submitted that a fair reading of the reasons of the judge revealed a clear process of reasoning by her Honour. In particular, the judge took into account the nature of the applicant's disorder, the intensity and frequency of his symptoms, its treatment, and the consequences that it had on the applicant. It was submitted that it was clear that the applicant failed in his application because, to the extent that he was able to identify consequences that were attributable to his Conversion Disorder, the judge concluded that they did not amount to a serious injury.

1. The obligation of a trial judge to give sufficient reasons for a decision is a fundamental requirement. A failure to provide adequate reasons is an error of law.[46] In order to be adequate, the reasons must sufficiently explain the basis for any findings that are made in reaching the decision, and they must disclose sufficiently the path of reasoning that lead to the decision in question.[47]
2. In Hunter v Transport Accident Commission & Anor,[48] Nettle JA (with whom Batt and Vincent JJA agreed) identified the fundamental requirements necessary for the provision of adequate reasons in the following terms:

When a judge decides an application under s 93(4)(d) of the Act the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.[49]

1. In applying those principles, the appellate court must keep in mind the caveat expressed by Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon[50] that a judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue.
2. In determining the adequacy of reasons in an application under s 93(4)(d) of the Act, it is important to keep in mind the nature of the proceeding, and the manner in which the materials and evidence have been adduced before the Court. The application is brought by originating motion, and the applicant's evidence-in-chief, and the evidence of any other witness, is not led viva voce, but is contained in an affidavit. Most, if not all, of the medical evidence is put before the Court by tender of the reports of the various medical practitioners who have treated or examined the plaintiff. Ordinarily, as in the present case, only the applicant is cross-examined. At the end of the hearing, the trial judge is left with a large mass of material, some of which, not infrequently, is quite irreconcilable.[51]
3. Further, in assessing the adequacy of a judge's reasons in such an application, it is important to keep in mind that the ultimate assessment by the judge, whether the injury complained of is serious, is essentially in the form of a value judgment which does not itself admit of detailed explicit reasoning.[52]
4. In the present case, the principal point advanced on behalf of the applicant's written case, under ground 3, was that the judge failed to acknowledge and analyse the degree to which the applicant's life had been affected by the psychiatric condition that was a consequence of the transport accident.
5. That submission had to fail for two associated reasons. First, it is quite appropriate for a judge, in a case such as this, to assess the detriment suffered by an applicant by reference to the capabilities which the applicant has retained. In the present case, it was quite appropriate for the judge to take into account the degree to which the applicant has been able to continue, and indeed enhance, his working capacity, and to perform his activities of daily living.
6. Secondly, it is quite clear that the judge, in that process, did assess the degree to which the applicant's disorder had affected his life, and her Honour did assess the consequences of it. As we have discussed, in considering ground 1, the judge carefully examined the evidence relating to the applicant's seizures, and concluded that he continued to experience tremors once each week which were at least mild in severity, and which ordinarily lasted for about 30 minutes.[53] Her Honour noted and accepted that the applicant was required to take medication, namely Clonazepam, each day to address his tremors.[54] In respect of the effect of the disorder on the applicant's working capacity, as we have noted, the judge found that the evidence did not support a conclusion that the applicant would have returned to tattooing if the accident had not occurred. Her Honour further found that the applicant enjoyed his work in traffic management, and there was no suggestion that he was having any difficulty in carrying out his traffic management duties on a full-time basis.[55] Further, as we have already noted, her Honour specifically addressed the extent to which the applicant's disorder had, or had not, affected his relationship with his wife, his sleep, his social life, his activities of daily living, and his ability to enjoy riding his motorcycle.[56]
7. Accordingly, and contrary to the written submission advanced on behalf of the applicant (but correctly abandoned during oral argument), it is evident that her Honour did, quite appropriately, analyse the degree to which the applicant's Conversion Disorder had affected his life, for the purposes of determining whether the applicant's psychiatric disorder constituted a severe long‑term mental or severe long-term behavioural disturbance or disorder for the purpose of s 93 of the Act.
8. Accordingly, ground 3 of the application for leave to appeal was bound to fail, if it had not rightly been abandoned by the applicant.

1. For the foregoing reasons, each of the three proposed grounds of appeal, relied on by the applicant, do not succeed. It follows that the application for leave to appeal must be refused.

[1] Simpson v Transport Accident Commission [2024] VCC 1743 ('Reasons').

[3] The third proposed ground of appeal was, however, abandoned by the applicant during the course of the hearing.

[20] Connelly v Transport Accident Commission (2024) 73 VR 257, 271 [38]-[40] (Beach, Niall JJA and J Forrest AJA); [2024] VSCA 20; Victorian WorkCover Authority v Perumal [2024] VSCA 107, [100] (Beach, Walker JJA and O'Meara AJA); Kesper v Victorian WorkCover Authority [2024] VSCA 237, [67] (Orr JA and J Forrest AJA).

[21] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129, 148-9 [55] (Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28; see also Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551-2 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442, 455-456 [15]-[17] (Keifel CJ, Gageler and Jagot JJ); [2023] HCA 32.

[22] Mobilio v Balliotis [1998] 3 VR 833, 846 (Brooking JA, with whom Winneke CJ agreed), 858 (Phillips JA), 860-861 (Charles JA); Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; (2005) 14 VR 622, 633-4 [20] (Ormiston, Chernov and Phillips JJA); [2005] VSCA 33; Noonan v State of Victoria [2013] VSCA 289, [8] (Osborn JA, with whom Santamaria JA agreed).

[23] Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140 (Crockett and Southwell JJ).

[24] Transport Accident Commission v Katanas [2017] HCA 32; (2017) 262 CLR 550, 555 [4]-[6] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); [2017] HCA 32; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [7] (Ashley JA); Sutton v Laminex Group Pty Ltd [2011] VSCA 52; (2011) 31 VR 100, 117 [89] (Tate JA, with whom Ashley JA and Hargrave AJA agreed); [2011] VSCA 52.

[36] [2022] VSCA 269, [43] (T Forrest, Kennedy and Kaye JJA) ('Taylor').

[40] [2020] VSCA 304, [71] (Beach, Kyrou and Osborn JJA) ('Forssell').

[41] [2018] VSCA 323, [33] (Maxwell P, Hargrave and T Forrest JJA) ('Noori').

[42] Gennimatas v Transport Accident Commission [2002] VSC 552; (2002) 5 VR 547, 554-556 [39]-[45] (Ashley J); [2002] VSC 552; Principe v Transport Accident Commission [2016] VSCA 205, [77]-[78], [92] (Hansen, Beach JJA and Cavanough AJA); Taylor [2022] VSCA 269, [43] (T Forrest, Kennedy and Kaye JJA).

[43] Noori [2018] VSCA 323, [33] (Maxwell P, Hargrave and T Forrest JJA); Forssell [2020] VSCA 304, [71] (Beach, Kyrou and Osborn JJA).

[44] Forssell [2020] VSCA 304, [76] (Beach, Kyrou and Osborn JJA).

[46] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279-80 (McHugh JA).

[47] Rodda v Transport Accident Commission [2008] VSCA 276, [98] (Hargrave AJA, with whom Ashley and Dodds-Streeton JJA agreed); Transport Accident Commission v Kamel [2011] VSCA 110, [70] (Kyrou AJA, with whom Warren CJ and Ashley JA agreed); Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8, [70] (Nettle, Beach JJA, and McMillan AJA).

[48] [2005] VSCA 1 ('Hunter').

[50] [2003] HCA 48; (2003) 200 ALR 447, 463-4 [62]-[63]; [2003] HCA 48.

[51] Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 [38] (Ashley JA, with whom Warren CJ and Nettle JA agreed); Woolworths Ltd v Warfe [2013] VSCA 22, [127] (Kaye AJA, with whom Tate and Whelan JJA agreed).

[52] Nichols & Anor v Robinson [2001] VSCA 11, [14] (Winneke P); Hunter [2005] VSCA 1, [22] (Nettle JA); Murray Goulburn Co‑Op Ltd v Filliponi [2012] VSCA 230, [28] (Neave JA, Beach AJA).