The traumatic aftermath of the Bourke Street Massacre in Melbourne in 2017, has left many permanently affected for the rest of their lives. According to the TAC, there have been 14 TAC common law claims for those hit by the car, 12 claims for the family members of those who were either killed or injured and 15 claims for those who were the first responders or people intimately involved. In this article, we look at the compensation available for nervous shock as a result of witnessing a road accident.
Melbourne CBD. the place we work, the place we admire the Yarra River and the Royal Botanical Gardens and the place we stroll along the bustling restaurants on Southbank. Many will be able to clearly recall the day that shook Melbourne’s CBD to its core – 20 January 2017, which later became known as the Bourke Street Massacre.
As a result of the reckless actions of single driver, many visitors to Melbourne CBD that day were either killed, physically injured or a significant psychological trauma after witnessing the aftermath of the road carnage. Several TAC claims were lodged for the physical injuries, nervous shock claims and claims by dependants of those who were tragically killed.
Amongst these claims, the TAC has indicated that there were 13 serious injury certificates denied for mental injury claims for bystanders who witnessed the traumatic incident.
CAN A PERSON WITNESSING A ROAD ACCIDENT BE ENTITLED TO COMPENSATION?
A person that has witnessed the aftermath of a traumatic incident on Victorian roads can make a nervous shock claim against the “tortfeasor” – the person that did the wrong thing to cause the accident.
In some states like South Australia, the Civil Liability Act 1936 (SA) specifically prohibits a person making a nervous shock claim other than close family of the deceased person.
Fortunately, the law in Victoria is much wider than that and the potential for a successful TAC claim is greater.
DEFINING PSYCHOLOGICAL INJURY UNDER THE TRANSPORT ACCIDENT ACT
Under section 3(1) of the Transport Accident Act(“the Act”), the definition of “injury” includes:
“nervous shock by a person who was directly involved in the transport accident or who witnessed the transport accident or the immediate aftermath of the transport accident.”
This includes those who developed psychiatric illness after witnessing their family or friends seriously injured following an accident.
An injured person may also be entitled to claim compensation under the Wrongs Act 1958 (Vic) if the circumstances of how the injury happened are not covered by:
- the Transport Accident Act in the case of a transport accident; or
- the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) in the case of injuries sustained in the course of employment.
ELIGOBILITY FOR TAC NERVOUS SHOCK CLAIMS
The eligibility requirements for an entitlement to a nervous shock claim are similar to any standard TAC claim. You must have an injury and it must have been directly caused by the driving or arising out of the use of a motor vehicle.
The main difference between nervous shock and standard TAC claims (for physical injuries for example), is the added focus on whether the injury claims is reasonably foreseeable. An injury is foreseeable where it can be expected to happen in the circumstances.
For example, if a person is involved in a car accident where their vehicle was hit from behind at 60km/h, you would expect them to have physical injuries to their spine, shoulders, arms and potentially even foot pain. On the other hand, if a person saw a stranger be seriously injured or die from a transport accident, you would not reasonably expect them to have a significant psychiatric condition resulting in hospitalisation or even suicide.
Even if foreseeable, there must also be a relationship between the injured person and the tortfeasor (the person that did the wrong thing). In legal terms, there must be a duty of care owed by the tortfeasor, to the injured person.
In the context of the Bourke Street Massacre victims, the offending driver was a road user and owed a duty of care to other road users, including bystanders and pedestrians. The more distant the relationship between the tortfeasor and the road accident victim, the more difficult it can be to establish entitlement here.
If the injury caused by the nervous shock was too remote and not reasonably foreseeable, the claim for compensation will fail.
DO I REQUIRE A RECOGNISABLE PSYCHIATRIC ILLNESS TO CLAIM?
A person will not be entitled to claiming compensation for emotional reactions to traumatic accidents, such as grief or sorrow. It must be a recognisable psychiatric illness and a formal diagnosis must be provided by a medical health practitioner such as a psychologist or psychiatrist. You must request a certificate of capacity from your doctor. This was discussed in the High Court case of Jaensch v Coffey (1984) 155 CLR 549
The TAC states its mission is:
“. to be the world’s leading social insurer and improve the State’s trauma system supporting those who have been injured on our roads”.
The law has to date supported people who sustained psychiatric illness after witnessing the aftermath of road accidents. We are yet, however, to see how the Court will address the denial of serious injury certificates of the 13 applications related to TAC nervous shock claims after the Bourke Street Massacre. It will certainly be interesting to see the application of the law when these cases approach the negligence stage of the litigation.
WHAT WOULD I BE ENTITLED TO IF I MAKE A NERVOUS SHOCK CLAIM?
You can claim no-fault statutory benefits including:
- income benefits up to 3 years from the date of the accident;
- medical expenses reasonable and necessary for your treatment; and
- an impairment benefit claim (a lump sum claim).
You may also be able to make a common law claim for damages against the tortfeasor. You must first satisfy the test of ‘serious injury’ to access common law damages.
WHAT ARE THE TIME LIMITS FOR LODGING A TAC CLAIM FOR NERVOUS SHOCK?
Generally, you have six years from the date of the accident or on the day you become aware of your injury, to make your claim.
If you were under the age of 18 years at the time of the accident, you will have six years after your 18thbirthday, to make a claim. After the six years have passed, your rights to make a claim for compensation will expire.
There are some circumstances that you may be able to request an extension of time from the court. The court will consider your extension of time application by determining:
- whether there was any prejudice on the TAC caused by the delay;
- your reasons for the delay;
- whether you had received any legal advice; and
- the nature of your injury.
Prejudice on the TAC may be considered if a significant amount of time had passed and the evidence relating to the accident is no longer available (for example, the offending driver has died).
In those circumstances, the court may consider that due to the loss of the evidence, the TAC does not have a fair chance to defend itself in the legal action and that may be a reason for the application to be rejected.
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