Introduction
The decision of the County Court in Rich v TAC [2025] VCC 1517 is an interesting example of a serious injury decision for a psychiatrically injured plaintiff under s.93 of the Transport Accident Act 1986 (the TAA). It also provides some helpful commentary on how a Court can deal with Jones v Dunkel adverse inference issues in a serious injury context.
Background to the case
This case involved a 62 year old woman who sought leave from the County Court pursuant to s.93(4) of the TAA for a determination that she had a serious injury. In this case she sought leave from the Court for a determination that she had a psychiatric serious condition which is defined as a "severe long-term mental or severe long-term behavioural disturbance or disorder" pursuant to s.93 (17)(c) of the TAA.
The plaintiff's case was that she had suffered a severe psychiatric condition following the death of her husband (Kenneth Rich), a former police officer, in a transport accident on 14 April 2017. Kenneth had been killed when he was hit by a car whilst riding his pushbike with his daughter.
As is common in these matters, the Plaintiff had been examined by multiple medico-legal examiners. Curiously, both of the medico-legal psychiatrists in this matter diagnosed the Plaintiff with prolonged grief disorder from Kenneth's death but there was disagreement over whether she had a persistent depressive disorder. The doctors also agreed that the plaintiff was stable and did not need any further treatment.
Court's findings
Some of the key submissions made by the TAC in this matter as to why the Plaintiff should not be found to have a serious injury, was that the Plaintiff was an unreliable witness and that, in accordance with the case of Jones v Dunkel, adverse inferences should be drawn by the Court in respect to the failure of the plaintiff to provide reports from her treating general practitioner (GP) and treating psychologist. The Court also discussed how to deal with the lay evidence of family members in a serious injury hearing, in this case the Plaintiff's daughters.
The Court also looked at many of the usual factors in respect to determining serious injury such as work capacity etc. The Court found that although the Plaintiff had ceased work in a bakery this was not directly related to her psychiatric condition, although it did note that the psychiatric condition had reduced her enjoyment of work.
Interestingly, the medico-legal report obtained by the TAC from Associate Professor Doherty (a long time medico-legal assessor for the TAC) found that she did not have any pre-existing issues, had a prolonged grief disorder and had persistent depressive disorder. As noted above, the medico-legal psychiatrist for the Plaintiff also diagnosed the Plaintiff with a prolonged grief disorder but did not formally diagnose a depressive condition, even though he noted she was depressed.
In respect to the serious injury consequences, the Plaintiff gave evidence that her sleep was affected, she was anxious to drive in cars, that she struggled to maintain the farm and house, was lonely, her social life had been impacted and she did not keep pictures of her husband around the house because she found it too distressing. The Court accepted the Plaintiff’s evidence that despite appearing to continue with a relatively normal life, her enjoyment of all aspects of her life was diminished.
The Court accepted that the plaintiff had a long-term mental disorder but gave careful consideration to whether it was severe, noting that the plaintiff had retained the ability to do many things including returning to work, performing farm work, caring for her grandson etc. The Court also considered the plaintiff's relatively minimal medical treatment in respect to the claimed psychiatric condition.
The Court did not draw adverse inferences against the Plaintiff pursuant to Jones v Dunkel, noting that "in serious injury applications, the rule needs to be tailored to the fact that a plaintiff does not commonly call, and is not expected to all, the same level of evidence in a common law trial." The Court accepted the Plaintiff's reasons for not relying on the report for the GP, being that the Court Book contained the GP's records and the GP had declined to provide a report. The Court also accepted that any evidence from the treating psychologist would be outdated as she had not seen the Plaintiff for nearly 20 months prior the hearing and that the psychologist's records were also before the Court.
The TAC sought to make several submissions about the Plaintiff's credibility based on the fact that she had claimed she had extensive counselling after the accident and on the histories she had given to her medico-legal specialist about her work capacity. The Court found that the Plaintiff was a credible witness and had made a mistake regarding the treatment evidence. The Court also found that Plaintiff had given correct histories to other witnesses and that care must be taken with just assuming a doctor has recorded a correct history.
Ultimately, the Court found she did meet the test of severe due to the "pervasive lack of enjoyment in...activities" and "that while she has retained much of her functional capacity she is constantly overwhelmed because she keeps herself busy as a coping mechanism for avoiding her grief and depression." He also accepted that she had not engaged in treatment because she didn't consider it would assist her, finally noting that "her existence sounds hard and exhausting."
Conclusion
This is an interesting decision in respect to a serious injury flowing from what is usually described as a "nervous shock" type of case. It is a common sense approach to the interpretation of s.93 (17)(c) cases and invokes a pragmatic approach to dealing with the evidence. The comments about Jones v Dunkel adverse inferences in a serious injury context will no doubt be useful for other plaintiff practitioners faced with similar dilemmas.
Making a TAC claim is a complex and often stressful process that is best navigated with expert support. With the experience of our lawyers, you'll be able to focus on your recovery whilst we take care of the rest.
This article was written by Jeremy King.
How can I learn more?
Jeremy King.
Principal.
- Injury Law & Police Misconduct
- 03 9890 3321
- Email Address: j.king@robinsongill.com.au
Jeremy King is a Principal Lawyer and head of the Police and Prisons team at Robinson Gill. With an imposing track record of high-profile actions against the Victorian police, Jeremy is at the forefront of the fight for police oversight and accountability. Through both his landmark litigation and advocacy work, he has played a key role in shaping legislative reform across Australia.
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