Rich v Transport Accident Commission
[2025] VCC 1517
•21 October 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-25-01010
| KERRY RICH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | His Honour Judge Over | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2025 | |
DATE OF JUDGMENT: | 21 October 2025 | |
CASE MAY BE CITED AS: | Rich v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1517 | |
REASONS FOR JUDGMENT
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Subject:Transport accident
Catchwords: Serious injury application - psychiatric injury following death of husband in a transport accident – whether plaintiff suffers severe long term mental or severe long term behavioural disturbance– whether plaintiff a reliable witness – whether Jones v Dunkel inferences should be drawn because general practitioner and psychologist did not provide reports or give evidence – retention of capacity to do things – evidence of anhedonia with limited exceptions
Legislation Cited: Transport Accident Act 1986
Cases Cited:TAC v Katanas (2017) 262 CLR 550; Simpson v Transport Accident [2025] VSCA 241; Humphries v Poljak [1992] VR 129; Jones v Dunkel (1959) 101 CLR 298; Fox v Percy (2003) 214 CLR 118; O’Donnell v Reichard (1975) VR 916; Woolworths Limited v Warfe [2013] VSCA 22; Philippiadis v Transport Accident Commission [2016] VSCA 1; Fabre v Aarenales (1992) 27 NSWLR 437; Noonan v State of Victoria [2013] VSCA 289; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Katanas v Transport Accident Commission (2016) 76 MVR; Rye v Transport Accident Commission [2021] VCC 1452
Judgment: Leave granted to commence a proceeding for damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr A Newman and Ms R Heffernan | Maurice Blackburn Lawyers |
| For the Defendant | Ms A Wood and Ms V Katotas | Transport Accident Commission |
HIS HONOUR:
Introduction
1In April 2017 the plaintiff was 54 years old. She had been married to her husband, Kenneth Rich, for about 31 years and they had five children together. Kenneth had been a police officer for 38 years and worked as a sergeant at the Narre Warren police station for the 17 years before his death. They had lived for about 18 years on a ten-acre farm. They were a couple who did most things together.
2On the morning of Easter Friday on 14 April 2017 Kenneth and Charlene, a daughter of the plaintiff and Kenneth, went for a pushbike ride. During the ride Kenneth was hit by a car (the transport accident). He died at the scene of the accident. Charlene was not physically injured.
3At about 9:00am on 14 April 2017 the plaintiff was at home. Charlene called and said that Kenneth had been hit by a car and seriously injured. Later that day police came to the house and told the plaintiff that Kenneth had died.
4About two weeks later, Kenneth’s funeral took place at the Police Academy in Glen Waverley, where she and Kenneth had been married. She describes his death as a hole in her life and says her life is now lacking joy in most aspects. She claims to do her best to keep busy to avoid thinking about Kenneth and his death. She has been busier after Kenneth’s death than before. She returned to work in a bakery soon after Kenneth’s death and worked there until mid-2023. She has worked on the farm. She has had limited medical treatment. She remains independent in activities of daily living. Her main complaint is a lack of joy and purpose in life, save in limited aspects.
5The plaintiff was medico-legally examined by Dr Nigel Strauss and Associate Professor Peter Doherty, who both opine that she suffers from a prolonged grief disorder from Kenneth’s death, though they differ about whether she has a persistent depressive disorder. They agree that her condition is stable and likely to persist. They do not recommend any further medical treatment.
6The plaintiff applies for leave pursuant to s93(4) of the Transport Accident Act 1986 (the Act) to commence a proceeding for damages for her psychiatric condition from the transport accident.
7Section 93 of the Act provides that a person may not bring such a proceeding unless the person’s injury is a “serious injury”, as defined in s93(17). The plaintiff claims she has suffered a psychiatric condition from the transport accident that is a serious injury under paragraph (c) of the definition, being a “severe long-term mental or severe long-term behavioural disturbance or disorder”.
8There is no real dispute between the parties that the transport accident happened, and the plaintiff has a psychiatric condition. The contested issues are confined to the extent of the plaintiff’s psychiatric condition and whether it is long-term and severe. Related to making findings of fact, the defendant submits that the plaintiff is not a reliable witness and, further, an adverse inference should be drawn against her as her treating general practitioner and psychologist have not provided reports or been called to give evidence.
Applicable legal principles
9The High Court in TAC v Katanas[1] set out the relevant legal principles that must be applied including the two-stage narrative test prescribed in Humphries v Poljak.[2]
[1](2017) 262 CLR 550, [3]-[6]
[2][1992] 2 VR 129
10Since the hearing in this case, the Court of Appeal handed down Simpson v Transport Accident Commission.[3] The Court of Appeal, referring to long standing authorities such as Mobilio v Balliotis,[4] reiterated that the statutory requirement that a psychiatric injury be “severe” is more stringent than the requirement that a physical impairment or loss of body function be “serious”. It is to be remembered that the term “serious” is not satisfied by something being “significant” or “marked” and requires that it be at least “very considerable”.[5] This means, as the Court of Appeal in Simpson notes, for a psychiatric injury to be “severe’, and thus a “serious injury”, it must be more than “at least very considerable”.[6]
[3][2025] VSCA 241
[4][1998] VR 833
[5]Humphries v Poljak [1992] VR 129,140
[6]Simpson v Transport Accident Commission [2025] VSCA 241, [57]
11In determining whether the plaintiff’s psychiatric injury from the transport accident is “severe”, I must:
(a) determine whether the plaintiff has suffered “a mental or behavioural disturbance or disorder”, which I will refer to as a psychiatric condition;
(b) determine whether the psychiatric condition is long-term by considering how long the injury has persisted and will persist, though it need not be for a specific number of years;[7]
(c) make findings of fact about the nature and symptoms of the plaintiff’s psychiatric condition and the consequences of that condition.
(d) consider all factors going to the severity of the plaintiff’s psychiatric condition in applying the two-stage narrative test by:
(i)assessing whether the nature and symptoms of her psychiatric condition and the consequences of the condition, as found, are subjectively for the plaintiff “severe”; and
(ii)determining whether the condition, as assessed, is objectively “severe” when compared with the range or spectrum of comparable cases.
[7]Humphries v Poljak [1992] VR 129,154
The evidence at the hearing
12The evidence was the following:
(a) the affidavits made by the plaintiff on 18 July 2024 and 24 July 2025;
(b) the plaintiff gave oral evidence including adopting her affidavits, being cross-examined on the severity of her condition and the consequences to her, and undergoing a short re-examination;
(c) an affidavit made by Ms Jacinta Rich, a daughter of the plaintiff, on 31 July 2025. She did not give oral evidence;
(d) an affidavit made by Ms Charlene Rich, a daughter of the plaintiff, on 31 July 2025. She did not give oral evidence; and
(e) the parties tendered a joint court book that included medical reports of Dr Strauss and Associate Professor Doherty, records of plaintiff’s treating psychologist, Ms Emma Fuller from Psychological Pause, and records from the plaintiff’s general practitioner clinic, St Antony Medical Centre.
Issues relating to fact finding
13The defendant made submissions about how I should find facts.
Reliability of the plaintiff
14The defendant in its written submissions claims the plaintiff was an unreliable witness and I should be cautious in accepting her evidence for three reasons.
15The first reason was that the plaintiff claimed in her first affidavit that she had “extensive counselling since [her] husband’s death”,[8] which was incorrect.
[8] Affidavit of Ms Kerry Rich made 18 July 2024, p 3 (“Plaintiff’s first affidavit”)
16In evidence-in-chief, she said she had reviewed her affidavits and, save for correcting two typographical errors, she accepted them as true and correct. In cross-examination, she agreed she had not had “extensive counselling”, which she understood to be ongoing, adding that “[t]hey were going to delete ‘extensive’”. [9] She was not asked in cross-examination or in re-examination who “they” were. I infer from the context that she had asked her legal representatives to delete the adjective “extensive” from the draft of her affidavit, but this did not occur.
[9]Transcript page (“T”) 12, line (“L”) 12-17
17The plaintiff rightly conceded in cross-examination that she had not had extensive counselling. The plaintiff saw Ms Fuller, a psychologist, for counselling. Her records were tendered.[10] They record that the plaintiff saw Ms Fuller for counselling on five days between 2 November 2023 and 30 January 2024.[11] The plaintiff has no plan for further counselling.
[10]Joint court book, p 55-64
[11]At the hearing, the parties referred to the plaintiff having seen Ms Fuller six times. While there are six records of attendances, two of them are for the same day (being 7 December 2023). It seems on 7 December 2025 the plaintiff consulted Ms Fuller for counselling and for eye movement desensitization and processing.
18The plaintiff’s description in her first affidavit of her counselling being “extensive” was incorrect. She should not have said it, and she should have corrected it in her evidence-in-chief while adopting her affidavits. It was not put to the plaintiff in cross-examination that the inclusion of “extensive” was done to mislead or deceive. In my view, it was likely a mistake made in the preparation of the affidavit given her evidence that “they” were going to delete it.
19The second reason arises from an incorrect work history recorded in the report of Dr Strauss. Dr Strauss medico-legally examined the plaintiff. In his first report dated 8 May 2024, in a section describing the plaintiff’s psychiatric history, he records that the plaintiff “said at the time of her husband’s death she had been working thirty hours a week in a bakery for seventeen years but she stopped work at the time of the accident in order to stay home and look after her small hobby farm of ten acres on which the house is located”.[12] He later comments in that report that she gave up work at the time of the accident because of her grief.[13] In his second report dated 13 May 2025 he records that the plaintiff has not worked since he last saw her, but does not deal with her previous work.
[12] Report of Dr Nigel Strauss dated 8 May 2024, p 3 (“Strauss first report”)
[13] Ibid, p 7 and p 10
20Dr Strauss’ recorded history about the plaintiff’s work at the bakery is incorrect. She did not give up work at the bakery when Kenneth died. She had a few weeks off and returned to work at the bakery. There was conflicting evidence about when she worked to but it was likely until about mid-2023.[14]
[14]The plaintiff in her first affidavit (at [21]) said she had ceased work about two years beforehand, which would be about July 2022. In her second affidavit (at [14]) said she had ceased work about two years beforehand, which would be about July 2023. Associate Professor Doherty in his report dated 27 June 2025 records (at page 3) she stopped work about two years beforehand, which would be consistent with about July 2023.
21The defendant’s criticism of the plaintiff assumes that Dr Strauss has accurately recorded what the plaintiff told him about her work. The validity of this assumption needs to be seen in the context of statements that the plaintiff made to others about her work capacity. In her first affidavit, made about six weeks after she saw Dr Strauss, she sets out that she had resumed work at the bakery after Kenneth’s death and continued it for a while.[15] She stated similar matters in her second affidavit. She was examined by Associate Professor Doherty on 11 June 2025 at the request of the defendant and in his report dated 27 June 2025 he records the plaintiff as telling him that she had resumed work at the bakery after Kenneth’s death and continued it for a while.[16]
[15]Plaintiff’s first affidavit, [20]-[21]
[16]Report of Associate Professor Peter Doherty dated 27 June 2025, p3-4 (“Doherty report”)
22More generally, caution needs to be exercised in assuming that a doctor’s record of what a person purportedly said is accurate.[17] This is especially so, as it was not put to the plaintiff that she had in fact given Dr Strauss the wrong work history, let alone that she had done so with the intent to mislead or deceive.
[17]Woolworths Limited v Warfe [2013] VSCA 22, [112]; Philippiadis v Transport Accident Commission [2016] VSCA 1, [105]
23In my view the incorrect work history taken by Dr Strauss does not reflect on the plaintiff’s reliability as a witness. It is likely there has been a mistake made by Dr Strauss in recording the work history of the plaintiff rather than her giving a wrong work history to him.
24The third reason was because the plaintiff had not obtained reports from her main treating general practitioner at St Anthony Medical Centre, Dr Amal Gergis, and her treating psychologist, Ms Fuller. At the hearing it was clarified that the defendant was in fact seeking to ask the Court to draw an inference in accordance with the principle in Jones v Dunkel[18] rather that use the lack of reports as a ground for attacking the plaintiff’s credit. I will return to this matter soon.
[18](1959) 101 CLR 298
25Accepting the limitations of making conclusions about the reliability of a witness solely or mainly from the appearance of a witness in giving evidence,[19] I considered that the plaintiff gave oral evidence in a straightforward manner. Early in her evidence she was crying and upset but she settled into the task of answering questions. I was impressed by her as a witness. She came across as someone who was doing her best to answer questions to the best of her ability and she willingly conceded matters that were against her interest. Indeed, at times she seemed to accept matters against her interest that objectively were dubious: for example, she acceded in cross-examination to the proposition that Dr Gergis and Ms Fuller were best placed to give evidence about what she was like before and after the transport accident. While she agreed with these propositions it is difficult to see how they could be true given the limited contact she has had with each of them (discussed later), and the obvious point that she (and her family) were better placed to give evidence about what she was like before and after Kenneth’s death. More generally, I note that the plaintiff’s evidence was substantially similar to the histories she was recorded as having given Associate Professor Doherty and Dr Strauss (save for the work history) and the evidence given by her daughters, Charlene and Jacinta.
[19]Fox v Percy (2003) 214 CLR 118, [31]
26I have considered the defendant’s submission about the reliability of the plaintiff. For the reasons above, I find that the plaintiff was generally a reliable witness whose evidence I accept. I will make findings of facts substantially consistent with her evidence.
What significance should be placed on the lack of a report and oral evidence from the treating general practitioner?
27The defendant submitted that as the plaintiff did not seek to adduce evidence from Dr Gergis about her current level of functioning, either by providing a report from her or calling her to give evidence, two things followed: first, in accordance with the rule in Jones v Dunkel, an inference should be drawn against the plaintiff in making findings of fact about her impairment consequences; and, secondly, there was a “gap in the evidence” about her impairment consequences.[20]
[20]T24, L24 – T25, L10; T56, L19-23
28I reject the defendant’s submission.
29The rule in Jones v Dunkel provides that an unexplained failure by a party to call as a witness a person whom the party may be expected to call on a subject may permit an inference to be drawn that the person’s evidence would not have assisted the party’s case on that subject. The inference can be considered in deciding whether to accept any evidence on that subject or in deciding whether to draw any inference of fact from the evidence about that subject.[21] 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 call, the same level of evidence as in a common law trial.[22]
[21]Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard (1975) VR 916, 929
[22]Woolworths Limited v Warfe [2013] VSCA 22, 147
30There is good reason why the plaintiff did not rely on a report from Dr Gergis. The joint court book contained the medical records of St Anthony Medical Centre for the plaintiff. An entry dated 9 October 2024 says the plaintiff’s solicitors had requested a medical report, but Dr Gergis had declined to provide it. In the absence of a report, the plaintiff was not required to call Dr Gergis to give oral evidence.[23]
[23]Fabre v Arenales (1992) 27 NSWLR 437, 449-450
31Furthermore, insofar as the defendant claims there is a gap in the evidence because Dr Gergis had not provided a report and did not give oral evidence, I reject that for four reasons. First, Dr Gergis had been requested to provide a report and refused. Secondly, the medical records of St Anthony Medical Centre were in evidence. Thirdly, this was not a case in which the plaintiff’s attendances on her general practitioner had particular significance. At its highest, there was a contested issue about whether she had raised Kenneth’s death with Dr Gergis several times, when the general practitioner’s notes contained at most two references to his death. Fourthly, there was no evidence that the plaintiff had recently seen Dr Gergis about her mental health.
What significance should be placed on the lack of a report from the treating psychologist?
32The defendant made a similar submission in respect of the treating psychologist, Ms Fuller. I reject that submission too.
33The submission needs to be read in the context that the critical issue was the extent of the plaintiff’s impairment consequences at the time of the hearing. It is unlikely that Ms Fuller would have been able to give evidence that would elucidate on this issue given she last saw the plaintiff on 29 January 2024, about 20 months before the hearing. Further, there was no gap in the evidence. Ms Fuller’s medical records were in evidence and recorded the substance of her consultations with the plaintiff. The reports of Associate Professor Doherty and Dr Strauss were in evidence and they contained contemporary assessments of the plaintiff’s mental health.
What weight should be given to the evidence of the daughters?
34The plaintiff tendered affidavits from two of her daughters, Jacinta and Charlene Rich. The defendant submitted caution should be exercised in relying on them because their position as witnesses was “understandable”,[24] which carries the inference that as the daughters of the plaintiff they are disposed to giving supportive evidence.
[24]T32, L26
35Affidavits from family members in a serious injury application have an uneasy status. If a family member does not provide an affidavit, a defendant can and often seeks for a Jones v Dunkel inference to be drawn. If an affidavit is provided, a defendant will often say no, or little, weight should be placed on it because of their closeness to the plaintiff. Yet it is their closeness to a plaintiff which means they are in a good position to comment on how he or she copes with an injury. The position of a defendant is also vexed given the expectation that a defendant will not cross-examine a family member unless it seeks, and the Court grants, leave.[25]
[25]Common Law Division Practice Note PNCLD 1-2025, 25.56
36I accept that in weighing the evidence of the daughters I should take account of the fact that the defendant has not cross-examined them (in accordance with usual and largely expected practice), and that as daughters they are likely to be disposed to being supportive of their mother. On the other hand, as members of a close family they are in many ways in a very good position to make observations of their mother.
Relevant factual findings
37I have reviewed the evidence in the case and the transcript of the hearing for the purpose of making the following relevant findings of fact.
Background matters
38The plaintiff was born in September 1962.
39She was married to Kenneth. They have five children who were aged from 28 to 36 at the time of hearing. Her children are generally well. They largely had left home. She has one grandchild.
40She was educated to year 9 and has worked mainly in retail. In May 2017 she worked in a local bakery in customer service, working Monday to Friday about 30 hours a week.[26]
[26]Plaintiff’s first affidavit, [20]
41She had no previous psychiatric history and was generally in good health. She was able to work, socialise and engage in personal and domestic tasks without restriction.
The transport accident
42On the morning of 14 April 2017 Kenneth and his daughter Charlene went out for a bike ride. Kenneth was hit by a car. He died at the scene.
43The plaintiff was at home with her son and his girlfriend. Charlene telephoned the house and said that Kenneth had been injured in an accident, and it was serious. The plaintiff was later was told by police that he had died at the scene.
44The same day, many police officers came to the plaintiff’s house because of Kenneth’s status. There was media interest, and the police shielded the plaintiff from the media.
45Kenneth’s death was an extremely distressing time for her.[27]
[27]Ibid, [15]
46Kenneth’s funeral was at the Police Academy where they had married. It was well attended.
47The driver of the car that struck Kenneth was charged and sentenced to a community order. The plaintiff believes he was sentenced too lightly. She is also aggrieved that he did not apologise to her and her family. This is a constant source of aggravation for her.
Return to work
48The plaintiff returned to work at the bakery about two weeks after Kenneth’s death. She felt the need to return to try and get back into work as it was what she knew how to do. In hindsight, she realises that she had no idea what she was doing. She found it difficult at work. The bakery was in a small community. She felt that everyone knew that Kenneth had died; they looked at her differently and did not know what to say to her. She said the experience compounded her grief and was a constant reminder of Kenneth’s death.[28]
[28]Ibid, [20]
49She stopped working at the bakery, likely in July 2023. She says she found it too much to work at the bakery and look after the family farm. Kenneth’s death meant that the tasks he performed on the farm had to be performed by someone else. She largely became the person who took on Kenneth’s old tasks. I find that her psychiatric condition did not directly incapacitate her for work, though it did make her experience of working less enjoyable.
Medical treatment
50The plaintiff has attended the medical clinic at St Anthony Medical Clinic since at least 2012 with her regular doctor at that clinic since 2022 being Dr Gergis.
51The clinic’s records were part of the tendered joint court book. They record progress notes for her attendances at the clinic from 31 July 2012 up to 19 May 2025. Most of her attendances are for blood tests, receiving immunisations and medication for hypertension.
52Notably, she did not see a general practitioner at the clinic from 31 July 2012 to 18 September 2021. In other words, she did not attend the clinic in the five years before Kenneth’s death and in the four years after his death.
53The first reference to Kenneth’s death in the records is from a dietician consultation on 27 October 2021, over four years after his death. It merely records that Kenneth had died without recording any matters about the plaintiff’s mental health.
54The only reference in the records to any treatment for psychiatric injury from Kenneth’s death is during a consultation with Dr Gergis on 24 August 2023 where it is recorded that the plaintiff was “asking for psychologist referral, lost her husband in a car accident 6 years ago”.[29] No referral letter was in evidence, but I infer that there was a referral to Ms Fuller, who the plaintiff began seeing shortly after.
[29]Clinical records of St Antony Medical Centre, p 4
55In her evidence, the plaintiff claimed that Dr Gergis had not written down all the times she had spoken with her.[30] She said that she had spoken to Dr Gergis “several times” about losing Kenneth and medication.[31] Medical records are not a transcript of what is said at medical consultations, but usually they would be expected to record salient matters.
[30]T13, L11-13
[31]T13, L26-31
56I accept that the plaintiff did discuss with Dr Gergis the death of Kenneth several times in passing but it was not the focus of consultations save for obtaining the referral to Ms Fuller. It would be expected that a long-term general practitioner and a patient whose spouse had died would have discussions at least in passing about the death and the effect of it.
57Ms Fulller’s notes record that the plaintiff had counselling on five days between 2 November 2023 and 30 January 2024. Ms Fuller recorded her observations from the counselling. Each entry notes to the effect that on attendance the plaintiff was anxious, nervous, upset, in tears, sad, gloomy and depressed, but generally calmed by the end of a session. In the first session, the notes record her having intense grief at times and that time was not healing. In the second session, she is recorded as finding it difficult to come to terms with loss and her feeling angry about the seemingly little consequences for the driver and the large consequences for her and the children. In the third session, it is recorded that her anger and grief do not allow her to go to Kenneth’s grave or see his photograph, and that she finds it very difficult to think about him. In the fourth session, she is recorded as saying that she was struggling at home as she found items belonging to Kennerth in the back cupboard and she felt very emotional. She is described as grieving a future they had planned. In the fifth and final session she is recorded as feeling somewhat better having space to speak about grief, but that it is very present at times. Her symptom checklist for the session recorded that she was overwhelmed and has excessive emotions like fear worry, sadness, anger and irritability. Her homework from the session was to think about going to Kenneth’s grave.
What injury has the plaintiff suffered?
58The defendant retained Associate Professor Doherty to examine the plaintiff, which he did on 11 June 2025. He provided a report dated 27 June 2025. His report comprehensively sets out his examination and his review of the material. It also sets out clearly the reason for his opinion.
59Associate Professor Doherty diagnoses the plaintiff with prolonged grief disorder and persistent depressive disorder and explains his diagnosis as follows:
“It has now been eight years since the transport accident. It was a sudden loss in tragic circumstances, which, though the claimant did not witness directly, had a significant if not profound effect on her.
Over the eight years, the expectation of the natural history of the psychological reaction to death and loss would be the resolution of grief and readjustment. Based on her reported history and what is in the supplied material, which has not taken place.
There is no pre-existing psychiatric history to account for the prolonged symptoms and difficulty with adjustment.
As noted in the report, there are persistent symptoms of longing, loss, reminiscing, along with avoidance of reminders, a sense of still difficulty accepting the death and moving on, and some anger. Those psychological reactions are intense enough to warrant the making of a diagnosable prolonged grief disorder as conceptualised in DSM-5-TR.
She has had some psychological counselling in 2023 and 2024.
There remains a sadness, a lack of usual pleasure, a numbing, persistent unhappiness with intense feelings of loss. There is enough to warrant the making of a diagnosis related to persistent depressive feelings. Those depressive feelings are more than one would expect, particularly regarding their persistence, that we would find in an uncomplicated bereavement disorder.
In my opinion, there are two ongoing psychiatric issues. They are the persistent grief and the persistent downturn in mood. The claimant struggles to pick herself up. There is no sense of joy, with diminished self-worth and a loss of expectations and optimism for the future.
In my opinion, the persistence and depth of symptoms over the years indicate that a diagnosis of an adjustment disorder is not appropriate or clinically justifiable.
In my opinion, there is no pre-existing psychiatric condition or unrelated psychiatric condition giving rise to the current presentation.”[32]
[32]Doherty report, p 10
60Associate Professor Doherty describes her symptoms from her psychiatric condition as “mild”.[33] He opines that her condition has the potential to decline further given her social stressors, including her mother’s health.[34]
[33]Ibid
[34]Ibid
61The plaintiff retained psychiatrist Dr Strauss to examine her. He examined her on 8 May 2024 and 13 May 2025 and provided two reports with the same dates as the examinations.
62Dr Strauss diagnoses the plaintiff with a persistent grief reaction or an abnormal grief reaction from the death of Kenneth. In his first report he describes her as having a significant psychiatric problems, and assessed her psychiatric impairment as 14 per cent.[35] He did not perform a psychiatric assessment when he examined her in May 2025 but characterised her condition, then, as mild.[36] He did not formally diagnose her with a depressive condition. However, he records that while the plaintiff did not believe she was “significantly depressed”,[37] he said she was depressed and grieving because of Kenneth’s death.
[35]Strauss first report, p 7-9
[36]Report of Dr Nigel Strauss dated 13 May 2025 (“Strauss second report”), p 4
[37]Ibid, p 3
63Ms Fuller’s records do not disclose a diagnosis but the entries refer to grief and depression in the context of treatment six years after the death of Kenneth. They are broadly consistent with her having persistent grief and depression.
64I do not consider there is a material difference between the opinions of Associate Professor Doherty and Dr Strauss, but in so far as there is, I have preferred Associate Professor Doherty’s diagnosis as his examination and the record of it is more detailed and considered that Dr Strauss’. It is difficult to understand why Dr Strauss does not formally diagnose a depressive disorder given his belief that she is depressed.
Is the psychiatric injury “long-term”?
65I find that the prolonged grief disorder and persistent depressive disorder is long-term. It is now over eight years since Kenneth’s death and the plaintiff’s psychiatric condition persists. It is likely to continue to persist. Associate Professor Doherty describes the symptoms from the psychiatric condition as persistent, with her future “guarded” with the potential for further decline.[38] Dr Strauss opines that her condition is stable.[39]
[38]Doherty report, p 10
[39]Strauss second report, p 5
What are the consequences to the plaintiff from her psychiatric condition?
66The plaintiff in her first affidavit states the following about her psychiatric injury and the consequences from it:
“I continue to experience ongoing anxiety, grief and depression related to the loss of my husband in the transport accident. My husband is buried at Gembrook cemetery, but I haven't been able to go there since the funeral as I am unable to cope due to my grief. I also keep no pictures of my husband around the house as I would find this too distressing. I have kept his possessions, however and many of these are being cared for by my children. I have periods of significant loneliness and depression and I cry virtually every day. I feel greatly overwhelmed at times because there are many tasks to do. Kenneth is no longer here to help me and I hate asking others for help. I cry particularly easily when I am overwhelmed. For a time after the accident, I stopped eating but I have now regained normal weight and reasonable appetite. There isn't a day that goes by that I don't deeply miss my husband.
…
My injury has reduced my enjoyment of life and my capacity to perform daily activities.
I am often lonely now. I have not formed a new relationship and am not interested in doing so. My husband was the love of my life. I have three dogs and my children keep me company when they visit. I take care of my grandchild once a week. I find this distresses me because my husband is not there to enjoy our grandchild and he was very involved with our children and would have greatly enjoyed being a grandfather. On the other hand, I find spending time with my grandchild lightens my mood.
My sleep continues to be impacted by my anxiety and depression. I often wake at night. I think about what happened and develop intrusive upsetting thoughts about the period of time around his death and the funeral. I often can't get back to sleep when I begin thinking about him.
My mobility has been impacted by my anxiety. Although I am not nervous travelling in cars, I avoid the scene of the accident.
My injury has impacted my social life. I have a few friends and immediate family members whose company I enjoy, but I spend less time with them as I don't feel inclined to socialize. I also no longer work and so do not have a circle of friends at work like I did prior to the accident.”[40]
[40]Plaintiff’s first affidavit, [19]; [22]-[26]
67The plaintiff in her second affidavit states the following about her psychiatric injury and the consequences from it:
“I continue to experience ongoing anxiety, grief and depression related to the loss of my husband in the transport accident, as described in my First Affidavit.
I have still not visited Kenneth’s grave in Gembrook cemetery as I could not bear the grief of seeing his headstone.
I continue to be upset that the person who caused the accident never offered us an apology. I think about this often.
I continue to keep no pictures of my husband around the house as I would find this too distressing. For a long time, I kept his possessions as a keepsake and these were being cared for by my children. I specifically did not want them in the house and wanted them to be with my children in the event that my house burned down. Only recently have I brought a few of his items back into the house, which I now keep stored in a box.
I continue to cry at least once a week, but sometimes much more often. This is particularly the case around the holidays and the anniversary of the accident around Easter time. When you love your spouse, a part of you dies when they die that you can never get back. It leaves a hole in your life. I do my best to keep busy so as to avoid thinking of Kenneth too much, as I know this isn’t good for me.
I continue to feel overwhelmed by the tasks that I have to do around the farm and house as Kenneth is no longer able to help me and I hate asking others for help. It isn’t simply the loss of his support around the farm that upsets me. I could hire someone to help me and I do when required, such as when I renovated the house recently.
Kenneth’s absence is a constant reminder of what a good man he was, how much I loved him, how many memories we had together and how much support he gave me in life. We raised five children together. He was always there for me. So when I need to get something done around the house or farm that he used to do for us, it’s a reminder to me of all that I loved about him and the rock that he was for me in my life. The memories of him doing day to day activities around the farm come flooding back into my mind when I struggle to do something, such as fixing a fence. I also get overwhelmed because I’m reminded of what a good team we were together. When you’re used to making decisions together as a couple and you lose your husband, you have to take on the whole mental load of managing life alone. Making any major decision without him reminds me how well we worked together and how supportive he was.
…
I continue to be lonely but have no interest in forming a new relationship as my husband was the love of my life. I immerse myself in family as much as I can in order to lessen my distress. I do find that spending time with my grandson lightens my mood, but I find it very upsetting as Kenneth never got to experience the joys of being a grandparent. My grandson also reminds me of Kenneth in certain ways, which keeps my thoughts coming back to his loss.
My sleep continues to be impacted by my anxiety and depression. I wake up alone and this is a daily reminder of his absence. I wake during the night and am preoccupied by thoughts of his death and the period following his death. Sometimes when I wake, I forget for a brief moment that he is gone. When I wake up and realize he is not with me, I am devastated.
My mobility continues to be restricted by my anxiety, although my nervousness and driving has improved somewhat since swearing my First Affidavit. Whenever I pass a bicycle, I become nervous and upset. While the accident site is nearby, I avoid it, as I find it distressing to pass by. It was suggested to me that a shrine could be built at the scene of the accident. I opposed this, as it would be a permanent reminder of my loss of Kenneth.
My social life continues to be restricted by my injuries. I no longer work and do not have a circle of friends related to my work and spend less time with others as I am not inclined to socialise.”[41]
[41]Further affidavit of Ms Kerry Rich made 24 July 2025, [7]-[13]; [16]-[19]
68The defendant cross-examined the plaintiff about her affidavits.[42] The plaintiff agreed that:
(a) she is a self-funded retiree with no mortgage on the farm;
(b) there were renovations at the farm, and she was involved in arranging and managing tradespeople to renovate;
(c) she works on the farm and it is pretty much a full-time job, agreeing that she has “a million jobs”[43] to do. These include having people come to do tasks like shear sheep and repair fences;
(d) she is a “busy bee”,[44] saying that she has to keep busy to keep herself occupied and that while she had been busy before Kenneth’s death she is now busier;
(e) she is independent in looking after herself, for example, by driving, shopping, cleaning and cooking;
(f) she is a carer, assisted by her sister, for her elderly mother who is suspected to have dementia. She performs tasks like taking her mother to medical appointments, liaising with specialists, organising medications, and dealing with calls from her mother that sometimes require her to quickly attend her mother’s house;
(g) she remains close with her five children;
(h) she looks after her grandson, which she finds joyful. She hopes to have more grandchildren and that they bring joy to her; and
(i) she has not had any medication for her mental health. She does not wish to take any medication for her mental health. She does not taking sleeping tablets.
[42]T4-18
[43]T7, L8-9
[44]T8, L25
69In re-examination, the plaintiff said she found Ms Fuller’s treatment helpful but that it did not bring back Kenneth and she would try to cope on her own; she kept busy because Kenneth was no longer there to help her; and she found it very lonely and very hard to cope without Kenneth.[45]
[45] T18, L28 - T19, L24
70Ms Jacinta Rich, in her affidavit, describes her parents as having a good relationship and as homebodies who enjoyed being around each other and did everything together. She said that since Kenneth’s death, her mother avoids going out whereas before she would go out, for example, to see extended family in Victoria and interstate. She says her mother now “simply exists”[46] and no longer talks about the future. She observes that her mother finds anniversaries and birthdays difficult and will often become emotional. She observes that her mother finds it painful to speak about Kenneth’s death to her family and cannot cope with being reminded of him, giving as examples that she does not display photographs of him in her house and she has not visited his grave.
[46]Affidavit of Ms Jacinta Rich made 31 July 2025, p 2
71Ms Charlene Rich, in her affidavit, describes her parents as having a loving relationship. She says that after Kenneth died, she encouraged her mother to seek counselling but she would not. She said that since Kenneth’s death, the plaintiff has anger and resentment for the responsible driver, and that she avoids going out into her local community and has largely removed herself from social circles. She observes that her mother “has lost her spark for life”,[47] is easily overwhelmed and struggles with caring for her grandson and managing renovations at the farm. She says that her mother no longer speaks of the future.
[47]Affidavit of Ms Charlene Rich made 31 July 2025, p 2
Is the psychiatric injury severe?
72As stated, I accept that the plaintiff has suffered a long-term mental disorder being prolonged grief disorder and persistent depressive disorder. The only issue left to determine is whether her psychiatric condition is severe.
73The fact that Associate Professor Doherty describes the symptoms as mild[48] and Dr Strauss describes her psychiatric condition as “mild”[49] does not necessarily lead to a conclusion that the consequences are not severe.[50] There is a need to consider the symptoms and consequences of the psychiatric condition.
[48]Doherty report, p 10
[49]Strauss second report, p 4
[50] Noonan v State of Victoria [2013] VSCA 289, [21]
74The plaintiff has suffered the following symptoms and consequences because of the psychiatric condition:
(a) she seeks to avoid having to deal with the fact that Kenneth has died. There are many examples of this: she does not have photographs of him in her house; she has not been to his grave in the eight years since his death; she has removed or concealed most of his items in her house; she avoids discussing Kenneth even with her children; and she avoids the scene of the transport accident though it is close to home;
(b) she frequently cries. In 2024, this was most days, but by 2025 it had reduced to about once a week, sometimes more. She cries around events like anniversaries and birthdays when her grief about Kenneth’s death is more pronounced as she ruminates on him not being there and wishing he was there;
(c) she has anger about the circumstances of Kenneth’s death and her perception that the driver was treated leniently, and behaved poorly in not apologising to her and her family;
(d) she has a constant feeling of being very lonely and grieving the loss of Kenneth. She has no interest in seeking to form another relationship and probably never will;
(e) she has poor sleep. Intrusive thoughts about Kenneth’s death regularly interrupt her sleep. The essential act of sleeping as a constant reminder of her loss and consequential grief. She has not and does not take medication for sleep;
(f) she engages in activities to distract herself from the death of Kenneth. This is a coping strategy that means she is busier after Kenneth’s death than she was before. Because of this, she is very busy and feels constantly overwhelmed. An example of this is her work on the farm. She works full time on the farm. There are tasks that Kenneth used to do. She has largely taken them on;
(g) she has limited joy in her life and much sadness. I was struck by Associate Professor’s Doherty’s comments that “[t]here remains a sadness, a lack of usual pleasure, a numbing, persistent unhappiness with intense feeling of loss”,[51] and she “struggles to pick herself up. There is no sense of joy, with diminished self-worth and a loss of expectations and optimism of the future”.[52] I accept his opinion as an accurate description of the consequences her psychiatric condition save that she does not have a total loss of joy as she experiences joy when caring for her grandson and she expects this will apply to any further grandchildren, and she has some joy in her family. However, even these activities are laced with sadness and regret that Kenneth is not alive to enjoy them; and
(h) she has suffered some restriction on social activities as she now does not socialise outside her family, but this is not of great significance as the focus of her social life has been her family even in the past.
[51]Doherty report, p 9
[52]Ibid
75This is not a case where the plaintiff’s psychiatric condition means she has suffered a marked loss of the ability to do things. It is relevant to consider what she has retained.[53]
[53]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [27]
76The defendant submits the plaintiff has retained a high level of functionality after Kenneth’s death. I agree, at least in so far as it refers to her physical capacity to do things. She was able to return to work a few weeks after his death doing the same type of work with a similar level of hours, and her decision to stop in mid-2023. She is independent in activities of daily living, for example, cooking, cleaning, and so on. She can drive with some anxiety around safety when bikes are about or near the scene of the transport accident. She can and has taken on the role of carer for her elderly mother and, also, her grandson. She works full time on the farm including performing farm work and organising others to do farm work and to perform a renovation. She has maintained close relationships with her children. She has not suffered financial hardship.
77I accept the defendant’s submissions that the plaintiff has kept herself busy since Kenneth’s death. This involves many aspects as set out in the previous paragraph.
78While it is necessary to consider what the plaintiff has lost and retained, simply to focus on her functional capacity or incapacity would lose sight of the consequences to her of her psychiatric condition. The effect of her condition is that she engages in tasks to keep herself busy as a strategy to avoid having to deal with her grief from Kenneth’s death. Both Dr Strauss and Associate Professor Doherty commented on how she engages in tasks to distract herself. Her condition causes her to be overactive and over busy as a way of dealing with her emotional distress. Furthermore, she has anhedonia in most tasks save for caring for her grandchild and socialising with family. I refer back to the observations of Associate Professor Doherty about the lack of enjoyment of life.
79I accept the defendant’s submission that the plaintiff has had limited medical treatment. She had seen psychologist, Ms Fuller, about five times; she has had minimal contact with her general practitioner about her mental health save for a referral and, at its highest, some generalised discussions about how she was feeling. The defendant submitted that in cases involving severe psychiatric injury, an expected consequence would be extensive medical treatment including hospitalisation or the use of medication.
80The extent and nature of the medical treatment is relevant but not determinative.[54]
[54]Katanas v Transport Accident Commission (2016) 76 MVR, [27]
81More generally, the plaintiff’s level of medical treatment needs be seen in the context that she is not the type of person to see doctors preferring to self-manage (or not) any condition. For example, she did not attend her general practitioner’s medical clinic at all between 31 July 2012 and 18 September 2021. This is a period of over nine years, which includes the death of Kenneth on 14 April 2017. It is striking that she first saw a psychologist many years after Kenneth’s death, and that the counselling ended not with a resolution of her condition but because she did not think it could help her. She is recorded expressing scepticism about whether medical treatment could assist her in dealing with Kenneth’s death, taking the rigid, but somewhat understandable view, that medical treatment would not bring Kenneth back and therefore could not fix or better the problem from her perspective.
82The parties referred the Court to “analogous cases” where a plaintiff claimed that a psychiatric injury caused by severe injury or death of a family member was a serious injury.[55] Each serious injury decision depends on the application of legal principles to the facts of the case. Previous decisions can be useful examples of a small sub-set of the “spectrum” of comparable cases, but there is limited utility in seeking to parse through the facts in a decided case to see whether they are the same or similar to the facts in the case to be decided. I have read the cases referred to by the parties.
[55]There were many, but one of them was Rye v Transport Accident Commission [2021] VCC 1452
83I am satisfied that the plaintiff satisfies the first stage of the narrative test: from her perspective the consequences and symptoms from her psychiatric condition are severe given the profound and pervasive effect they have on her. I was struck by how she gave evidence. She started in such an emotional state that I was concerned about whether she should continue to give evidence. However, once the process of questioning was underway, she settled into task of answering questions. It was in keeping with the medical evidence about prolonged grief and depression that she seeks to cope with being busy and distracting herself.
84The second stage is harder to decide. On any view her psychiatric condition sits close to the line between a serious injury and not a serious injury. In my view, what pushes it just over the line to being a “serious injury” is her pervasive lack of enjoyment in the activities (with some relief, for example, when minding her grandchild and socialising with her family), 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, and her limited medical treatment reflects her views on the efficacy of treatment rather than a lack of severity of her condition. Her existence sounds hard and exhausting.
85I am satisfied that when judged according to the spectrum or range of cases for such mental disturbance or disorder the consequences to the plaintiff are more than “very considerable” and therefore are severe.
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