Published: 31 October 2014
Author: Michael Burdess and Peter Claven
TAC roadblocks on mental illness compo hit regional Victoria
Media reports in The Age this week revealed that tougher laws urged by the TAC and imposed by the Napthine-Baillieu government had effectively acted as a roadblock to all common law compensation for people suffering long term mental injury as a result of road trauma.
While the laws have been bad news for all motorists, their impact is potentially worse for regional Victorians who have less access to mental health services.
According to the report, the TAC chief executive, Janet Dore, in a letter to board members, said the law had led to savings in the order of $142m since the authority had successfully lobbied the government to change the law restricting mental injury claims.
The report only confirmed what transport accident lawyers like ourselves have been aware of anecdotally, that no common law claim for damages had been approved for people suffering long-term mental illness from debilitating disorders such as major depression or post traumatic stress.
The changes made by the Victorian Government have raised the bar to an unachievable level. Now, a person will only be accepted as having a severe long-term mental disorder if they suffered from the condition for a continuous period of at least 3 years during which time it has not responded to known clinical treatments. Furthermore, for three years there must be a severe impairment in the patient’s ability to function in a relationship and socially, and at work. (Our emphasis. The test must include all three.)
How does this work in practice?
Consider a major road accident in which the crash survivor has witnessed a loved one die or become critically injured. The psychological trauma caused by such an experience can be severe and prolonged. Some people may respond by isolating themselves at home, not answering the phone or responding to mail or in some cases move to a remote country location to live alone, as best they can.
It was once acceptable to have such conditions assessed by a specialist and if the impairment appeared significant and enduring, say after a period of 12-18 months, there would have been grounds for pursuing a common law claim for compensation for the sufferer.
Now that claim can’t be lodged until after three years, and even then is will be subjected to all the caveats.
Regional road trauma victims hardest hit
Road victims in country and regional Victoria will have been hardest hit by the government’s more punitive measures.
Many people in regional areas are less likely to have the access to the psychiatric therapy needed to satisfy the test. Such services are in scarce supply in regional areas.
Consider also that you will be required to seek this treatment, not for 12 months, but over a three-year period.
In our experience, people will simply tire of the regime and either self medicate, turn off, or escape. For a lot of people experiencing these psychological problems, attending doctors for regular treatment is simply not an option.
Common sense would have suggested that a failure to compensate a single road accident victim for severe long-term mental injury during a period of 12 months meant that the test was too severe. It would have admitted the obvious, that severely mentally injured people were being left untreated and uncared for.
It would have compelled a more sensible and compassionate government and TAC to have changed the law.
It would not have been an opportunity to gloat.