Mental health and the reasonable person test

11th Jan 2018

Our society, our judicial system and the law has historically had some difficulty understanding and responding appropriately to psychiatric injuries. One of the key reasons for this, and there are many, is that to provide justice and fairness, legal systems require evidence to prove allegations. The trouble is, psychiatric injuries cannot be seen. There is no scan, blood analysis or other test that can provide objective proof of troubles of the mind.

Legal provisions, such as the extension of a limitation period or mitigation of loss, so often rely on the reasonable person test. The problem is, it is sometimes impossible to act ‘reasonably’, to view events with clarity and to be diligent, when suffering from a psychiatric injury.

The District Court of Queensland has offered some hope for plaintiffs suffering from a psychiatric injury, and His Honour Justice Durward SC’s position was maintained Holmes CJ and Gotterson and Flanagan JJ in the Court of Appeal in the matter of AAI Limited t/as Suncorp Insurance v Birch [2017] QCA 232.

Ms Birch witnessed and rendered assistance to occupants in a fatal motor vehicle accident on 3 February 2012. She saw her general practitioner who, on 3 March 2012, suggested that she could be experiencing post-traumatic stress disorder (PTSD). She was prescribed anti-depressant medication and referred for counselling. Ms Birch underwent eight sessions with a mental health nurse and continued to take medication until May 2014. Ms Birch continued to work full time as a clinical audiometrist, including travelling regularly. She experienced symptoms of travel phobia; however, they eased over time.

Ms Birch began experiencing difficulties with her employer in 2014. At the start of 2015, her required travel increased significantly. On 27 June 2015, Ms Birch returned to her general practitioner reporting psychiatric difficulties. She was referred to a psychologist and advised to take time off work.

On either 16 or 23 July 2015, Ms Birch was advised by her psychologist that she was suffering symptoms that were an ongoing manifestation of her PTSD from the 2012 motor vehicle accident. Ms Birch was previously unaware that she had an ongoing psychiatric injury as a result of the motor vehicle accident, or at all. On 9 August 2015, Ms Birch resigned from her employment due to the amount of driving required in her duties and her ongoing travel phobia.

On 17 June 2016, a claim for nervous shock injuries arising from the motor vehicle accident was filed in District Court of Queensland. In order to proceed with her claim, filed four years and four months after the accident, Ms Birch required an extension of the usual three-year limitation period under s31 of the Limitation of Actions Act 1974 (Qld). This section required Ms Birch to establish three things:

  1. That a material fact of a decisive character relating to the right of action was not within Ms Birch’s means of knowledge until after 17 June 2015.
  2. That there exists evidence to establish right of action.
  3. That there is no prejudice to the defendant in granting an extension of the limitation period.

Suncorp took no issue with points 2 or 3, and thus the initial application and the appeal were concerned with the question of material fact. As mentioned above, questions of extension of the limitation involve the application of a ‘reasonable person’ test, being at what point would a reasonable person in Ms Birch’s position have taken appropriate advice about her injury and legal rights.

In this case, the Court was ‘satisfied that it [was] only over time and with gradual adverse progression of her symptoms that [Ms Birch] came to the realisation that she could no longer cope with her employment. I am satisfied that having regard to her capacity to cope at work for the time after the motor vehicle accident, the medical advice she received and her personal and work circumstances, [Ms Birch] took all reasonable steps to find out the material facts.’

Most significantly for sufferers of psychiatric injuries, the Court accepted as reasonable that ‘in the period during which a claim could be brought, [Ms Birch] was preoccupied with workplace issues and other adverse health conditions’ and upheld the District Court’s extension of the limitation period.

Psychiatric injuries can be difficult to recognise. Symptoms will often be attributed to tiredness, a normal response to conflict or even stress. It can also be difficult to determine the cause of injuries, with sufferers often experiencing a rollercoaster of symptoms, lapses, delayed onset and exacerbations of their underlying injury. For Ms Birch, the Court has recognised all of these difficulties and the impact this lack of clarity can have on a sufferer pursuing appropriate advice. This decision offers some compassion, understanding and support to people experiencing psychiatric injuries and the plethora of troubles that go along with them.

Maurice Blackburn Lawyer Michelle Wright has spent much of her legal career in the field of personal injury litigation and has a particular interest in assisting clients who have sustained psychiatric injuries from incidents at work or on the road. She is a member of the Queensland Law Society, the Australian Lawyers Alliance, the Women’s Lawyers Association of Queensland and the Logan and Scenic Rim Law Association and works in a variety of volunteer programs to ensure that everyone is given equal access to essential legal advices. 

This article was originally published on Michelle's blog, P.I. Case Note.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Queensland Nervous Shock Limitation of actions Psychiatric Injury