Recently the County Court examined whether a young adult can be found to be suffering from a “severe” psychiatric injury when, as an 8 year old child, he was exposed to the immediate aftermath of a transport accident in which his older ‘father figure’ brother was killed.
Background to the case
In 2011 a car full of teenagers was involved in a serious transport accident, the consequences of which were not only life ending for some occupants, but also life changing for many families.
The plaintiff was 8 years old when he moved to Western Australia with his mother and sister. His brother who was 17 years old at the time of the accident that took his life, was also due to make the move but instead, on 26 March 2011 The plaintiff and his sister were with their mother when she received the phone call no parent ever wants to receive.
The plaintiff described that he saw his mother receive “…a call from a friend in Melbourne and she completely changed. I knew something was wrong and she was crying terribly. I had a feeling something happened to my brother.”
Initially, while shocked, the plaintiff was in denial and told himself that his brother was on holiday, but this changed on the day of the funeral when his mother describes “he held his brother’s hand and …went completely white and would not let go of his brother’s hand. I have never seen a child so colourless and blank like he was. He would not talk or engage with anybody. I think the shock was really cemented at that time.”
Court’s findings
The judgment delivered on 12 March 2024 by His Honour Purcell starts with an apt and unnervingly accurate analysis of how difficult severe psychiatric nervous shock injury claims can be when he stated:
Consider a scenario of a young boy hit by a car, badly breaking his leg, with a subsequent surgery to repair the fracture but causing a rotational deformity in his leg. In this scenario, it is likely that the orthopaedic injury would still be easily identifiable if the same person was orthopaedically assessed as a young man, even if there had been other traumatic or life stressors happen to him throughout his adolescence and formative years.
Then consider a second scenario of a young boy who suffered a psychiatric injury because of a car accident. In this second scenario, it is likely that the psychiatric injury would not be so easily identifiable if the same person was psychiatrically assessed as a young man, if there had been other traumatic or life stressors happen to him throughout his adolescence and formative years.
Many people are exposed to psychiatric stressors throughout their life and, because you cannot see a mental health injury, it is often difficult to have a claim for a mental health injury accepted by the Transport Accident Commission.
In this instance, the plaintiff and his mother, who sustained her own nervous shock injury as a result of the accident, described that in the years following the accident the plaintiff’s performance at school dropped off to the point that he failed year 11 and was told to leave school or transfer to VCAL. He also suffered from nightmares and flashbacks so, at the young age of 14, he started regularly smoking cannabis to help him deal with these and allow him sleep.
During the hearing, the plaintiff was questioned about the other stressor in his life being the cause of his mental health consequences and the reason for commencing cannabis but, with mind to the “careful opinions from Ms [Vicki] Moore, who analysed …. school reports and other evidence and concluded within her relevant expertise that the decline in …. school performance was related to the compensable psychiatric injury. Her opinions are considered, logical and compelling for a conclusion … academic results were impacted by the claimed “serious” injury”, His Honour found that the plaintiff continued to suffer from mental health consequences and a substance use disorder and stated that, amongst other reasons, the plaintiff “had a compromised schooling because of his compensable injury, which has impacted his employability and employment options. That is of itself a very considerable consequence for a young person.”
Of note, the plaintiff was also resistant to seeking mental health treatment assistance. However, His Honour accepted “that the … condition is not one that is easily treated. The treatment involves psychological counselling which he finds triggering because it requires him to engage with and recall distressing matters.” In addition, while the plaintiff did more recently undergo some psychological counselling sessions, “[t]he treating psychologist … described … ongoing psychological difficulties, and the limited utility of ongoing psychological treatment because of the challenges that counselling had caused. In such a scenario, the … ongoing symptoms are long term.”
Conclusion
The judgment not only highlights, the difficulties that arise in mental health injury claims but also serves as a reminder to not dismiss the consequences of such an injury irrespective of other life influences and lack of treatment.
Finally, on a personal note, while it was not ideal that the plaintiff needed to relive his experience in Court, it was refreshing to hear from the bench an acknowledgment addressed to the plaintiff that the process is sterile and disconnected along with an expression of sympathy on behalf of the State of Victoria for the loss he has experienced.
Click Akl v TAC [2024] VCC 242 - BarNet Jade - BarNet Jade to read the case in full .
How can I learn more?
Jacinta Richards.
Principal Lawyer.
- Injury Law, Superannuation, TPD & IP
- 03 9890 3321
- Email Address: j.richards@robinsongill.com.au
Jacinta graduated with a Bachelor of Law from the University of New England in 2015. She completed her practical legal training at the College of Law and was admitted to practice in 2016.
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