Psychological serious injury applications – a TAC case law review

While most TAC claims never go to court, some matters need to be litigated to achieve fair compensation for the injured person. In this article, we review a case in relation to a serious injury application for psychological injury as a result of a road accident, which ultimately ended up in the courts.

In Victoria, if you are injured in a road accident, to receive payment for your pain and suffering or for future economic loss you must show the accident was caused by someone else’s negligence and that you have suffered a ‘serious injury’.

The serious injury test is a legal test. The case we are going to discuss concerns a psychological injury.

To be considered a serious psychological injury the plaintiff (the injured person) must show that she has suffered a severe long-term mental or behavioural disturbance. It is worth noting that the bar for psychological injuries is higher than for physical. For physical injuries we must show serious injury and for psychological we must establish that the injury is severe. It is worth noting also for the purpose of this case that, to be considered long-term the plaintiff needs to show that their injury is stable.

On 9 February 2014, 21-year-old Ms Gurpreet Paik entered an intersection in Doncaster, Victoria on a green light when another vehicle ran a red light and crashed into her car.

As a result of the accident, Ms Paik suffered injuries to her back, neck, right leg, hip, shoulder, scalp and hand which caused her ongoing pain and discomfort. She also developed persistent anxiety and panic symptoms requiring psychological care and was prescribed antidepressant medication to manage her symptoms.

On several occasions, Ms Paik’s anxiety and panic attacks caused hyperventilation and her heart rate to increase so much that the ambulance was called.

Over time, Ms Paik recovered reasonably well from her physical injuries but continued to experience ongoing pain which was constant and widespread.

Since the accident, Ms Paik had great difficulty driving as well as being a passenger, which caused a great inconvenience to her independence. She also experienced ongoing depression, anxiety and panic symptoms, which negatively impacted her family life with her husband and her social life.

In an effort to manage her pain, Ms Paik participated in a pain management program which proved unhelpful.

Ms Paik applied for a Serious Injury Certificate from the TAC so that she could access compensation for pain and suffering and her economic loss (“a common law claim”). A Serious Injury Certificate is a document granted by the TAC or a Court which allows an individual to commence a common law claim. If you do not have serious injury certification you cannot bring such a claim.

The TAC denied her application saying that her psychiatric injuries were not severe and long term. The TAC also noted that some doctors had suggested that Ms Paik be treated by a psychiatrist, but she decided not to.

Ms Paik’s Serious Injury application was heard before the Court over 4 years after the accident.

The TAC argued that Ms Paik’s psychiatric condition was not a long-term condition and could not be described as severe or stable.

The TAC noted a number of doctors had recommended that Ms Paik seek treatment from a psychiatrist to help reduce her symptoms but that she didn’t do so.

Ms Paik’s lawyers argued that her decision not to see a psychiatrist was reasonable given that Ms Paik had previously pursued several treatment suggestions which ended up unhelpful.

Given the considerable amount of time that had passed since the accident (over 4 years) and the fact that Ms Paik had trialled 6 different types of antidepressants, the Court found that Ms Paik’s condition will not change and is therefore stable.

The Court agreed that the medical evidence showed that Ms Paik’s initial physical injuries had, over time, resolved and that Ms Paik now suffers from a chronic pain condition, rather than any major ongoing physical damage.

The Court believed the nature, extent and genuineness of the consequences claimed by the plaintiff in relation to her psychological injuries and was satisfied that  these injuries were severe and long term.

The Court granted Ms Paik a Serious Injury Certificate.

By granting Ms Paik a Serious Injury Certificate, the Court allowed her to make a claim for common law damages.

If you’re injured (physical and/or psychological injury) on a Victorian road and your TAC claim or serious injury application is denied, you do not have to accept that finding. You should always speak with a road accident lawyer to ensure you are receiving all the benefits you are entitled to.

Polaris Lawyers are highly experienced personal injury lawyers who have successfully challenged hundreds of TAC denied claims.

We provide ‘no win, no fee’ claims with no hidden charges and you get to speak directly with a lawyer. We deliver ‘big firm’ experience with a focus purely on you and your claim.