Katanas v Transport Accident Commission
[2016] VSCA 140
•17 June 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0100
| MARIA KATANAS |
| V |
| TRANSPORT ACCIDENT COMMISSION |
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| JUDGES: | ASHLEY, OSBORN AND KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 June 2016 |
| DATE OF JUDGMENT: | 17 June 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 140 |
| JUDGMENT APPEALED FROM: | Katanas v Transport Accident Commission [2015] VCC 1156 |
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ACCIDENT COMPENSATION – Transport Accident – Leave to bring common law proceedings – Serious injury – Severe long-term mental or severe long-term behavioural disturbance or disorder – Meaning of ‘severe’ – Judge comparing applicant’s disorder with other cases in possible range – Whether judge applied correct test – Whether judge erred in concluding that consequences of the applicant’s disorder not severe – Whether judge’s reasons adequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr V Morfuni QC and Ms M Lang | Zaparas Lawyers Pty Ltd |
| For the Respondent | Mr S O’Meara QC and Mr S Martin | Hall & Wilcox |
ASHLEY JA
OSBORN JA:
We have had the advantage of reading in draft the reasons of Kaye JA. His Honour has fully set out the circumstances of the matter, the grounds of appeal, and his reasons for rejecting each of those grounds. We agree with his Honour that grounds 2, 3 and 4 should be rejected. His Honour has very clearly explained why, in his opinion, ground 1 should be rejected. But with the greatest of respect for his Honour’s analysis, we have come to a different conclusion. We would, therefore, grant the applicant leave to appeal, allow the appeal, and make consequential orders.
The judge below accepted the opinions of treating practitioners that, in consequence of the transport accident of July 2010, the applicant suffered post-traumatic stress disorder and either a major depressive disorder or an adjustment disorder. In the course of the final address of applicant’s counsel, the judge suggested that it ‘didn’t matter so much what the labels’ were, the ‘real issue [was] the consequences for the [applicant]’. Counsel agreed. In those circumstances, his Honour was not called upon to determine whether the applicant suffered from one or the other of a major depressive disorder or an adjustment disorder. That is so although the circumstances complained of by a patient will inform the differential diagnosis; and although it might be considered over-simplistic to say that whether the applicant suffered from a continuing major depressive disorder or an adjustment disorder was simply a matter of labels.
The judge rejected a submission for the respondent that the applicant’s current psychological state was attributable to causes other than the transport accident. There was not, his Honour concluded, ‘any significant disentangling exercise to be undertaken’. He was satisfied that ‘the [applicant’s] current psychological symptoms are substantially related to the accident’.
Then, in his reasons for judgment, his Honour said this:[1]
The real issue to be determined in this application is, given the psychological symptoms and consequences which I am satisfied (given the reservations I have in respect of Mrs Katanas’ credibility) she suffered as a result of the accident, do they meet the test for ‘severe’ injury as prescribed by the Act. The word ‘severe’ is a word of greater force and indicates a more significant injury and consequences are required to meet the test under sub-paragraph (c) as compared to sub-paragraph (a).[2] In order to satisfy the test posed in ss (c), the consequences arising from a transport accident must be more substantial than the test posed under ss (a); that is, they must be more than ‘very considerable’ when a comparison is made with other cases in the possible range of impairments. Thus, consideration must be given to the vast array of mental disorders which may be encountered following a transport accident. At one of the spectrum is mild anxiety as a result of trauma, easily overcome without medical intervention. At the other end of the spectrum are those disorders which provoke the most extreme symptoms and consequences, including psychoses, admission to psychiatric hospitals as an inpatient, delusional beliefs and thoughts, suicidal ideation and suicide attempts. Such conditions require extensive treatment and medication. It follows that for a mental disorder to be described as being ‘severe’, it is at the upper echelon of those disorders in the possible range.
[1]Katanas v Transport Accident Commission [2015] VCC 1156 (‘Reasons’), [82].
[2]See Noonan v State of Victoria [2013] VSCA 289; Mobilio v Balliotis [1998] 3 VR 833.
Thereafter, at [83]–[84] in his reasons, extracted in the reasons of Kaye JA at [62] below, the judge indicated what range of symptoms and what consequences he accepted resulted from the injury as he had found it to be.
His Honour had some reservations about the applicant’s description of her symptoms and the effect upon her of the diagnosed condition. He did not accept that her condition was as extreme as she would have it. At [85] in his reasons, also extracted by Kaye JA at [62] below, he detailed a number of capacities which, he concluded, the applicant had retained.
It was in the circumstances created by—(1) his finding as to the nature of the applicant’s condition; (2) his statement of approach set out in the passage excerpted at [4] above; and (3) his findings as to symptoms and consequences, that his Honour undertook, in terms, the balancing exercise which must be undertaken in order to determine whether, in an application brought under s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), the applicant had established that she had suffered ‘serious injury’—this meaning, relevantly, ‘severe long-term mental or severe long-term behavioural disturbance or disorder’. He balanced, on the one hand, the extent to which he accepted that the applicant had suffered psychological consequences and, on the other hand, the extent to which, he concluded, she been able to maintain her involvement in social, recreational and domestic matters. He was not satisfied that the applicant had met the ‘requisite statutory test’ because he was not satisfied that the mental disorder from which she suffered might be described as ‘severe’.
Under cover of ground 1, counsel for the applicant submitted that the judge had in part misdirected himself in the passage excerpted at [4] above; and that this misdirection had been operative in the decision which his Honour reached adverse to the applicant, because it provided the ‘prism’ through which his Honour examined the circumstances.
With the qualification that regard must be had to the use of the word ‘severe’ in the case of mental or behavioural disturbance or disorder, the task which the judge had to undertake was that explained by Crockett and Southwell JJ in Humphries v Poljak as follows:[3]
[W]e think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s (4)(d) when reliance is placed upon sub-s (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go.
[3][1992] 2 VR 129, 140.
Understandably, and correctly, applicant’s counsel did not submit that there was any error in the judge’s approach as disclosed in the passage excerpted at [4] above, up to and including his Honour’s observation that ‘consideration must be given to the vast array of mental disorders which may be encountered following a transport accident.’
We pause to note his Honour’s statement, in substance, that in order to satisfy the statutory test, the consequences arising from a transport accident must be severe in the case of a mental disorder. This conformed with what was said by Crockett and Southwell JJ in Humphreys v Poljak in the passage cited at [9] above. Kaye JA states, at [73] below, that an assessment whether a mental disorder is ‘severe’ must involve, and take into account, the nature and severity of the disorder, its symptoms and consequences. In the case of physical injury, distinctions may readily be drawn between injury, symptoms and consequences. A person suffers spinal disc protrusion. Thus, injury. The disc protrusion is productive of sciatica. Thus, a symptom. The sciatica causes sleeplessness. Thus, a consequence. But in the case of a mental disorder, any such differentiation becomes, we think, much more problematic, and the utility of differentiation is likely to be the less. In the first place, the diagnosis of the disorder will almost certainly be heavily informed by the history which is given, so far as it is accepted, of symptoms and consequences. Second, assessment of the severity of the disorder will almost certainly be significantly informed by what is accepted as being the extent of those symptoms and consequences. Third, to speak of symptoms and consequences itself suggests the existence of a bright line separating them which may, but will not always, exist. Taking the applicant’s case as an example, her reported experience of flashbacks and nightmares no doubt informed the diagnosis of post-traumatic stress disorder. But in addition, each of those reported experiences could be said to describe both a symptom and consequence of that disorder. On the other hand, the applicant’s asserted inability to undertake further education would no doubt be characterised as a consequence of a disorder.
We return to his Honour’s reasons as excerpted at [4] above. The gravamen of the applicant’s complaint was that his Honour—(1) set up a spectrum which had at one end a mild anxiety not requiring treatment; and at the other end, disorders provoking ‘the most extreme symptoms and consequences’, such conditions requiring ‘extensive treatment and medication’; and (2), drew from that statement of extremes the conclusion that it followed that, for a mental disorder to be described as being severe, it must be at ‘the upper echelon of those disorders in the possible range’. The judge’s description of what characterised the upper extremity of mental disorders, and his references to what then followed and to the ‘upper echelon’ showed, counsel submitted, that the judge’s approach was that for a mental disorder to be ‘severe’, it must approach the situation in which the disorder provoked the most extreme symptoms and consequences, requiring extensive treatment and medication.
Counsel submitted that the passage in the judge’s reasons upon which he focused—we will call it ‘the impugned passage’—was a false and incomplete way of looking at the matter. It would not accommodate, for instance, a person whose psychiatric disorder was such that only modest treatment was required or available, but who nonetheless suffered severe consequences such as inability to follow a previous occupation.
When it was put to him by the Bench that the judge had undertaken a conventional analysis of symptoms and consequences in his reasons [83]–[85], (which Kaye JA has extracted at [62] below), and had then undertaken the necessary balancing exercise, counsel submitted that it must follow, from the way in which the judge framed the extremes in the spectrum, that his Honour’s balancing exercise was infected by the claimed misdirection. The misdirection could not sensibly be regarded as non-operative.
Counsel for the respondent submitted that the entirety of what the judge said in the paragraph excerpted at [4] above correctly reflected the test which is to be applied in a case of this kind. He further submitted that the paragraph should not be read in isolation. The judge, counsel submitted, had rightly referred, in that paragraph, to both symptoms and consequences, each of which was relevant in the present connection.
Developing his submission that the paragraph should not be read in isolation, counsel referred to the judge’s conclusions with respect to the applicant’s symptoms, and of consequences for the applicant, expressed in the following three paragraphs of his reasons.
Asked by the Bench how it could be pertinent for the judge to have said, in a paragraph directed to retention of capacities, that —
While she has received considerable treatment and medication, she has not been an inpatient in any psychiatric institution (save for one attendance at an Emergency Department) nor suffered the more extreme symptoms of psychological trauma as described above —
counsel submitted that although the particular matter was not properly described as a retained capacity, nonetheless, the extent of treatment received could be relevant to the balancing exercise. He cited, in that connection, Papamanos v Commonwealth Bank of Australia.[4]
[4][2014] VSCA 167 [44] (‘Papamanos’).
We consider, as we have earlier intimated, that the submissions for the applicant should be accepted. The effect of what the judge said in the impugned passage was that the spectrum of least case to worst case was established by setting up, at the one end, a mild condition not requiring treatment; and at the other end, grave psychiatric disorders provoking the most extreme symptoms and consequences, such as to require extensive treatment and medication; and then to say that it followed that for a mental disorder to be described as ‘severe’, it is ‘at the upper echelon of those disorders in the possible range.’
We do not doubt that the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be accounted as severe. But in our view the spectrum which the judge described was only one amongst a number of ways in which the question of severity might be approached, each of them being incomplete in itself. For instance, one might frame a spectrum, in a particular case, by reference to the accepted frequency and severity of the claimant’s symptoms (or consequences) such as flashbacks or nightmares, or by reference to the extent of inhibitions upon the claimant’s daily activities, or by reference to the extent of inhibitions upon the claimant’s occupation or further education. In each instance, a spectrum could be set up, ranging from zero to very great. But whilst each spectrum would be relevant to determination whether the statutory test was satisfied in the particular case, no one of them, by itself, would answer the critical question. In our opinion, the correct thing to do, in each case, is to first identify and next bring to account all relevant circumstances personal to the claimant; and then to apply the statutory test, making a value judgment as described by Crockett and Southwell JJ in the passage cited at [9] above. In making that value judgment, a judge must give to each identified relevant circumstance the weight which appears to be appropriate. He or she will be assisted, of course, by personal experience of cases which have fallen on one side of the line or the other.
Then consider the spectrum which, we consider, the judge set up in present case. We see no reason to doubt that applicant’s counsel was correct in submitting that a psychiatric disorder may have severe consequences, even though the sufferer has not undergone much treatment. On the other hand, the mere fact that a person has attended many doctors and undergone much treatment would not tell in favour of a disorder being severe unless the symptoms and consequences of the disorder properly call for that level of treatment. These propositions illustrate, to our mind, the limited utility of the spectrum.
It was, as we have said, submitted for the respondent that the impugned passage should not be read in isolation of the analysis of symptoms, circumstances and retained capacities which his Honour then undertook. We accept that the analysis was conventional in form, and that it addressed relevant circumstances personal to the applicant. But, looking backwards, as it were, we do not accept that the analysis showed that what the judge said in the impugned passage had some meaning other than that which on its face it bore.
The alternative argument was that the analysis showed, even if there was a misdirection in the impugned passage, that it was not operative in the ultimate finding which his Honour made. We cannot accept that argument. So to conclude would imply that the impugned passage could simply be redlined. But if that were so, why was it there?
In our view, when his Honour came to undertake the final balancing of considerations, it is unrealistic to suppose that he did not do so having regard to what he had said in the impugned passage. That passage appeared in the paragraph of his Honour’s reasons which set out matters of principle. It immediately prefaced his Honour’s consideration of the circumstances, and the final balancing.
Applicant’s counsel submitted, in effect, that one could see that the asserted misdirection had played a part in his Honour’s resolution of the balancing exercise because, on the facts found by his Honour, it was at least very difficult to understand how his Honour could not have concluded that the applicant had suffered a ‘severe’ impairment. We think that the submission was not without some force, but it is unnecessary that it be accepted in order that the applicant make good the complaint now under consideration.
There is a further matter which we should mention. In our view, the consideration mentioned by the judge when dealing with retained capacities, which we have excerpted at [17] above, tends in favour of the conclusion which we have reached. As we have said, we accept that the extent of treatment which a person has received may bear upon whether impairment should be accounted ‘severe’. But in the passage cited, his Honour, in substance, took up the ‘extent of treatment’ analysis set out in the impugned passage. We add that Papamanos, cited by counsel for the respondent, did not deal with the question of misdirection at all in the context of
medical treatment received. What was there involved, relevantly, was a complaint about alleged inadequacy of reasons. The judge in that case apparently made use of the same kinds of considerations as are set out in the impugned passage. But, in our opinion, by no stretch could what the Court said in Papamanos[5] be construed as if it was an approval of the spectrum which the judge set up in the present case.
[5][2014] VSCA 167 [44].
We would, as we earlier said, grant the applicant leave to appeal and allow the appeal. We would set aside the orders made in the County Court on 28 August 2015. We would remit the applicant’s application for leave to bring a proceeding under s 93(4)(d) of the Transport Accident Act 1986 for hearing and determination by a different judge in the County Court.
KAYE JA:
The applicant, by originating motion, issued a proceeding in the County Court by which she sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to commence proceedings at common law in respect of psychological injury sustained by her as a result of a transport accident on 10 July 2010. The judge, who heard her application, was not satisfied that the mental disorder suffered by the applicant constituted a ‘severe’ injury as required by s 93(17)(c) of the Act, and accordingly dismissed the application.[6] The applicant seeks leave to appeal from that decision.
[6]Katanas v Transport Accident Commission [2015] VCC 1156.
The circumstances
The applicant was born in Greece in 1945, and immigrated to Australia in 1962. She was married, but her husband died from a terminal illness in 2005. She has three children, and eight grandchildren. In 1998, the applicant obtained her Victorian Certificate of Education (VCE) after studying part time for four years. In
2001, she completed a Diploma of Modern Greek language. During the following seven years, she successfully completed a Bachelor of Arts degree. In 2004, she also completed a course entitling her to operate a taxi licence.
The applicant has a quite extensive medical history. It includes a diagnosis of over-active thyroid gland (Graves’ disease), long standing issues with vertiginous dizziness, recurrent issues with urinary tract infections, and incontinence. In 2011, she was diagnosed with diverticulitis following a gastroscopy and a colonoscopy.
The accident, that was the subject of the proceeding, occurred on 10 July 2010, when the applicant was driving her vehicle on the Princes Highway, Mulgrave. As the applicant’s vehicle entered the intersection with Springvale Road, another vehicle collided with the driver’s side of her vehicle.
After the collision the applicant remained seated in her vehicle in a state of shock. It is not clear whether she lost consciousness, but in her affidavit, and in cross-examination, she said that everything went black. The applicant was assisted from her vehicle by a bystander, and was conveyed by ambulance to the Alfred Hospital, suffering from pain to her neck, chest, abdomen and left ribs. She was diagnosed to have suffered multiple rib fractures on the left hand side, seat belt bruising, a laceration to her left knee and damage to some of the teeth on her lower jaw. The applicant was discharged from hospital four days later.
On the next day, the applicant attended her long standing general practitioner, Dr Lena Chan. In the following weeks, she consulted Dr Chan on several occasions complaining variously of pain and lowered mood.
On 16 November 2010, the applicant told Dr Chan that she did not feel particularly confident when driving, which was associated with anxiety. She still had nightmares of her accident although they occurred less frequently, and in addition she experienced day time thoughts of the accident. Dr Chan referred the applicant to a clinical psychologist, Dr Marlies Alvarenga. The applicant saw
Dr Alvarenga for seven sessions, the last of which was on 24 September 2011.
In the course of that treatment, Dr Alvarenga referred the applicant to a clinical psychologist, Dr Antony Raj, for Eye Movement Desensitisation and Reprocessing treatment (EMDR). The applicant attended Dr Raj for five sessions of that treatment from 19 August to 30 September 2011. Dr Raj reported that after those sessions, the applicant reported feeling more relaxed and in control, and that she did not have any flashbacks or nightmares. The applicant told Dr Raj that she felt more confident while driving. In a letter to the Transport Accident Commission dated 1 December 2011, Dr Alvarenga similarly reported that, after seeing Dr Raj, the applicant had expressed relief from intrusive memories. At that stage, Dr Alvarenga reported to the TAC that the applicant had made ‘remarkable progress’, from being a person who had lost her independence to fear, distressing flashbacks and panic attacks, to someone who was courageously recovering from her injuries, and ‘… who is no longer affected by her trauma in a significant manner’.
In the meantime, on 25 July 2011 the applicant attended Dr Chan, and described experiencing intermittent flashbacks and a ‘deja vu’ sensation relating to the accident. Dr Chan offered the applicant anti-depressant/anxiolytic treatment, but the applicant declined. Dr Chan referred the applicant to Dr Zoltan Okalyi for psychiatric evaluation. However, the applicant did not avail herself of that referral. In cross-examination, she said that she was concerned that she might have been admitted to a mental hospital if she attended Dr Okalyi.
In 2013, the applicant commenced treatment with Associate Professor Pralay Mazumdar, a psychiatrist. She has seen Professor Mazumdar regularly from that time. Professor Mazumdar has prescribed anti-depressant medication, which the applicant has continued to take.
On 15 February 2014, the applicant presented to the emergency department at Monash Medical Centre with worsening nightmares since taking one of the anti-depressants prescribed by Professor Mazumdar. She was very upset with the nightmares, as she had started seeing dead people in her dream who were touching her.
In February 2014, the applicant commenced to receive treatment from Dr Jane D’Abbs, a clinical psychologist. In the ensuing 14 months to April 2015, she attended Dr D’Abbs for 17 consultations. In addition, she participated in a number of group therapy sessions.
The evidence
The applicant swore two affidavits in support of her application. In her first affidavit, the applicant set out her background, the circumstances of the accident, the injuries that she sustained as a result of the accident, and the ongoing effect of those injuries. In particular, she described how, since the accident, she had had difficulty sleeping, had nightmares, experienced flashbacks during the day, and had difficulty relaxing. She said that after the accident she could not look after her grandchildren as she had previously done, because of the pain resulting from her injuries, and also because she lacked sufficient concentration. She said that she could no longer drive her grandchildren home from school, because she was too scared to do so. She only drove with the grandchildren in the vehicle outside the local area when it was absolutely necessary to do so. She said that after she received treatment from Dr Raj, she had ‘less nightmares,’ but she continued to feel fearful and anxious. Since the transport accident she found it difficult to control her moods. She became tearful easily, and occasionally she felt so nervous that her hands and arms would shake. Her memory had deteriorated, she had difficulties organising her thoughts, and she continued to have negative thoughts about driving and further injury.
In her second affidavit, sworn 1 May 2015, the applicant stated that she continued to experience a lot of anxiety when driving her vehicle, and she often felt panicked on those occasions. She still had difficulty sleeping, and she continued to experience terrible nightmares which woke her from her sleep. She had difficulty organising her thoughts, and she often felt confused about where she was and what she was doing. She also found it difficult to read and to concentrate. Before the accident, she had planned to undertake a Master’s degree in Greek history, but now she felt unable to do so. She had to force herself to go out socially, but she preferred to stay at home.
The applicant was cross-examined extensively. On a number of occasions, the cross-examination was directed to demonstrating that there was a significant discrepancy between the applicant’s claimed symptoms, and the description of her activities and symptoms which she had given to Dr Chan, and other practitioners, who she had consulted.
In particular, it was pointed out that, in a consultation with Dr Chan on 21 August 2010, the applicant’s daughter Olga stated that the applicant had been getting out more, and that they had just spent three hours shopping together. In cross-examination, the applicant denied that, and said that even in 2012 she could not go out shopping. She was unable to recall telling Dr Chan on 26 October 2010 that she had returned to 70 percent of her pre-accident function, and that she had resumed driving. She said that she would just drive short distances with her daughter in the vehicle. She could not remember if she told the doctor that she was able to clean and carry out domestic tasks independently. She said that she could no longer walk for three hours a day, but said that she walked with friends for about three quarters of an hour. She said that if she walked for a further distance, her legs would get tired, and she might fall over because she got dizzy.
The applicant agreed that as a result of the hypnotherapy treatment conducted by Dr Raj, her nightmares became less intense. She agreed that in the summer of 2010 she had travelled to Eden for a two week camping holiday with her family. She said that her family did not feel comfortable going on the holiday and leaving her at home alone. She said she was unable to cook while they were in Eden, because of her mental and physical problems. In particular, she had found it hard to concentrate sufficiently to cook.
The applicant agreed that Dr Alvarenga’s treatment helped her ‘to a certain degree’ with the agoraphobia that she had developed after the accident. Dr Alvarenga had given her breathing and relaxation exercises. She stated that after treatment by Dr Raj, the flashbacks that she had experienced became less frequent and less ‘horrific’. By March 2012, her psychological symptoms had changed, but they still had a significant effect on her life. She said that she still continued to suffer from a lot of anxiety.
When questioned about the activities that she engaged in with her grandchildren, the applicant agreed that after the accident she did voluntary work at the Greek bilingual school, listening to her grandson and to the other children read their readers. She said that in 2014 she had attended at the school on about 12 occasions for that purpose, and in 2015 (by August) she had done so about four or five times. She said that her 11 year old grandson stayed with her overnight each Thursday. In addition, she watched her granddaughters performing Greek dancing, but she had difficulty making the costumes for the grandchildren for that activity. She also agreed that she had assisted her son to paint the inside of his house.
The applicant agreed that she still owned two rental properties. She occasionally visited the properties to check on them, and she checked the payment of the rent on the computer. The applicant also stated that she still held a taxi licence with Black Cabs, which she hired out.
In re-examination, the applicant stated that before the accident she was on the committee of the Greek club. She used to attend every function at the club, but since the accident she had only done so one to three times per year. Before the accident, she used to visit friends, but now she only did so rarely, because she was scared of driving a vehicle. In addition, whereas previously she had looked after her grandchildren on a full time basis, after the accident she found she could only do so for shorter periods because she lacked sufficient concentration. She had been unable to return to the studies that she had planned to undertake, because she lacked sufficient concentration to do so, and she could not control her thoughts. She said that she used to read books, but now she could not concentrate sufficiently to do so.
The applicant’s daughter, Olga Kormas, also swore an affidavit in support of the application. She stated that since the accident the applicant had seemed constantly sad and detached. The accident seemed to haunt her, and the applicant had told her about her flashbacks or panic attacks. The applicant had also told her how she had experienced nasty nightmares and that she did not sleep well. Sometimes, Ms Kormas would take the applicant out shopping, but the applicant tired easily, and became disoriented and anxious. She was particularly nervous as a passenger in a vehicle, and as a pedestrian. The applicant found it difficult to gather her thoughts and maintain a focus. She no longer read as she used to, and she had abandoned her goal of obtaining a Master’s degree in history.
The medical evidence was contained in a number of reports that were tendered in evidence.
Dr Chan provided a lengthy and very detailed report as to the treatment that she had provided to the applicant for her various injuries and complaints. Dr Chan considered that the applicant had suffered a post-traumatic stress disorder with associated anxiety and depression as a result of the accident. She did not consider that the applicant’s symptoms had stabilised, and she could not predict the applicant’s prognosis or anticipated period of incapacity. However, she did not anticipate that there would be any improvement in the near future.
In a report dated 16 March 2012, Dr Alvarenga considered that the applicant had suffered a post-traumatic stress disorder, and that she also met the criteria for a major depressive disorder. Dr Alvarenga noted that the applicant had responded well to therapy, and that she had dealt with most of her anxiety and depressive symptoms. Psychologically, the applicant was ‘back to pretty much a more normal life’, with remnants of anxiety. By way of prognosis, Dr Alvarenga stated that the applicant had responded ‘very well’ to treatment, and that as time went on, it was expected that she would be able to make a complete psychological recovery from her experience.
In a subsequent report dated 24 February 2014, Dr Alvarenga again considered that the applicant fulfilled the criteria for depression and post-traumatic stress disorder. However, in contrast to her first report, Dr Alvarenga stated that the applicant’s psychological symptoms had not improved markedly. She reported that the applicant’s overall levels of anxiety and depression had remained at a similar level, although her acute trauma symptoms had improved. With regard to prognosis, Dr Alvarenga concluded:
… it seems unlikely that Mrs Katanas will ever again regain her pre-injury level of functioning. However, with psychotherapy her mood, sense of safety and stress management is likely to improve. I also believe that, in time, she will be able to overcome her trauma … .
Dr Raj, in a report dated 27 July 2012, also diagnosed the applicant to suffer from post-traumatic stress disorder. He noted that the applicant had responded well to the treatment provided by Dr Alvarenga and also to the EMDR treatment that he had provided, and that the applicant was ‘… continuing with her progress’.
Associate Professor Mazumdar provided two reports, dated 12 February 2014 and 13 April 2015, respectively. Those two reports are expressed in almost identical terms. In each report Professor Mazumdar concluded that the applicant suffered Major Depressive Disorder and Post-Traumatic Disorder. He was guarded about the applicant’s prognosis, for a number of a reasons, including that the condition had been chronic for four years, her treatment response had been mediocre, her symptoms of Post-Traumatic Stress Disorder had not adequately resolved, she was a widow, and she was living alone.
In a report dated 10 October 2014, Dr D’Abbs diagnosed the applicant to suffer an adjustment disorder with mixed anxiety and depressed mood and symptoms of post-traumatic stress disorder. Dr D’Abbs considered that it was likely that the applicant would continue to experience ongoing depression, together with symptoms of post-traumatic stress disorder, to some degree indefinitely.
The applicant was examined by Dr Paul Kornan, psychiatrist, at the request of her solicitors, in 2012, 2014 and 2015. In each report, Dr Kornan’s diagnosis was that the applicant had sustained a post-traumatic stress disorder, an adjustment disorder with anxiety and depression, and a specific phobia, particularly about vehicle accidents and vehicles, together with a fear of possible sudden death. He considered that the applicant’s prognosis was poor, and that, in light of her age, her psychiatric ill-health would remain at the current levels in the long term.
The applicant was examined in December 2013 by Associate Professor George Mendelsohn, a consultant psychiatrist, at the request of the solicitors for the respondent. Professor Mendelsohn considered that the most appropriate diagnosis was that of an adjustment disorder with mixed anxiety and a depressive reaction. That condition was secondary to the applicant’s ongoing physical complaints resulting from the injury she had sustained in the vehicle accident. The applicant had experienced manifestations of post-traumatic anxiety, but in Associate Professor Mendelsohn’s opinion, those symptoms were due to an understandable reaction to having been involved in an incident that had caused physical injuries. Associate Professor Mendelsohn did not consider that there was any indication of a specific diagnosable mental disorder, such as post-traumatic stress disorder, as a result of the accident.
The applicant was also examined by Dr Natalia Krapivensky, a consultant psychiatrist, on behalf of the respondent in March 2005. Dr Krapivensky diagnosed that the applicant suffered a major depressive disorder. She agreed with the view expressed by Associate Professor Mendelsohn, that the applicant did not qualify for a diagnosis post-traumatic stress disorder.
The judge’s reasons
In his reasons, the judge summarised, in some detail, the evidence to which I have referred. The judge concluded that he had significant reservations about the credibility of the applicant. He found the applicant had been an unsatisfactory witness. In particular, the applicant had refused to answer questions directly put to her in cross-examination, she was non-responsive in answers that she gave to questions in cross-examination, and she prevaricated in the course of her evidence. The applicant regularly denied the history that had been given by her to various doctors, and then she sought to explain those histories away when presented with what the reports had recorded. The judge referred to nine instances in which the applicant’s evidence, in those respects, was unsatisfactory. The judge concluded:
None of these matters looked at individually or together lead me to the view that I should reject Mrs Katanas’ evidence about the effect upon her of the accident, but it does cause me to have reservations about the extent to which her psychological symptoms have impacted upon her life. She did not answer questions in the manner I would expect of an honest witness. She sought to argue and prevaricate regularly when matters were clearly put to her.[7]
[7]Reasons, [78].
In considering the medical evidence, the judge noted the ‘significant discrepancy’ between the two reports of Dr Alvarenga dated March 2012 and February 2014 respectively. His Honour noted that Dr Alvarenga had not given any explanation for the change in her views. Accordingly, he had some reservations about the opinion expressed by Dr Alvarenga. The judge also gained little assistance from the report of Dr Raj, due to its brevity, the short period of the treatment of the applicant by Dr Raj, and the age of that report.
In conclusion, the judge noted that Dr Chan, Dr Alvarenga and Associate Professor Mazumdar were the treating practitioners, and that their views needed to be considered carefully. His Honour accepted their opinions that the applicant did suffer a post-traumatic stress disorder, and either a major depressive disorder, or an adjustment disorder, following the accident. The judge considered that, notwithstanding the applicant’s unrelated physical conditions, and her previous motor vehicle accidents, the transport accident of July 2010 was primarily responsible for the applicant’s current state, and, in particular, the symptoms that related to the accident, including nightmares and flashbacks.
The judge then turned to the issue whether the applicant’s symptoms and circumstances were such that they satisfied the test for ‘severe’ injury prescribed by the Act. His Honour stated:
[82]The word ‘severe’ is a word of greater force and indicates a more significant injury and consequences are required to meet the test under subparagraph (c) as compared to subparagraph (a). In order to satisfy the test posed in subsection (c), the consequences arising from a transport accident must be more substantial than the test posed under subsection (a); that is, they must be more than ‘very considerable’ when a comparison is made with other cases in the possible range of impairments. Thus, consideration must be given to the vast array of mental disorders which may be encountered following the transport accident. At one end of the spectrum is mild anxiety as a result of trauma, easily overcome with medical intervention. At the other end of the spectrum are those disorders which provoke the most extreme symptoms and consequences, including psychoses, admission to psychiatric hospitals as an inpatient, delusional beliefs and thoughts, suicidal ideation and suicide attempts. Such conditions require extensive treatment and medication. It follows that for a mental disorder to be described as being ‘severe’, it is at the upper echelon of those disorders in the possible range.[8]
[8]Reasons, [82].
[83]I accept Ms Katanas suffers a range of symptoms arising out of the accident. These symptoms include flashbacks and nightmares – although these seem to have been, in part at least, effectively treated – fear of driving, loss of confidence, stress and anxiety and an inability to concentrate and order her thoughts. Of significance to Mrs Katanas is that all of this has prevented her undertaking any ongoing studies which she was successfully able to do prior to the accident. I accept this is a consequence which is lost to her.
[84]I further accept that, to some extent, she has difficulty sleeping and is not able to look after her grandchildren as she did before. All of these symptoms have required considerable psychological treatment from the general practitioner, Dr Alvarenga, and more recently, Associate Professor Mazumdar, and the prescription of antidepressant medication. From the reports, it is likely Mrs Katanas will require ongoing treatment and medication into the foreseeable future.
[85]However, as earlier stated, I have some reservations about Mrs Katanas’ description of her symptoms and the effect upon her of the diagnosed psychological condition. I do not accept her condition is as extreme as she would have it. Of importance, in my view, is that Mrs Katanas has retained the following capacities notwithstanding her symptoms:
•She lives independently and is able to undertake most of her usual domestic tasks, including cooking, lighter cleaning and shopping.
•She is able to drive a car, albeit for short distances, and with some fear.
•She is able to look after her grandchildren, in particular, has a grandchild who stays overnight once a week, although not to the extent as before.
•She is involved with her grandchildren and their activities, including Greek dancing and costume making, and helping at their school, although not as often as before.
•While her social life is more restricted, she stills walks several days a week with friends and has some involvement in other activities, including a Greek social club.
•She is able to manage, with the assistance of agents, a number of investment properties, and a taxi licence. While I accept that most of the day to day administrative work is conducted by those agents, nonetheless, many of the major decisions are made by her.
•While she has received considerable treatment and medication, she has not been an inpatient in any psychiatric institution (save for one attendance at an Emergency Department) nor suffered the more extreme symptoms of psychological trauma as described above.
[86]Balancing on the one hand, the extent to which I accept Mrs Katanas has suffered psychological consequences, and on the other, the extent to which she has been able to maintain her involvement in social, recreational and domestic matters, I am not satisfied that she meets the requisite statutory test. In essence, I am not satisfied the mental disorder from which she suffers may be described are ‘severe’.
Grounds of application for leave to appeal
In the application for leave to appeal, the applicant relies on four proposed grounds of appeal, namely:
(1)The primary judge erred in law by applying the wrong test in determining whether the applicant’s injury satisfied the criteria in s 93(17)(c) of the Transport Accident Act 1986;
(2)The trial judge erred in that on the factual findings made by him he should have concluded that the injury satisfied the relevant test;
(3)The primary judge’s finding that the applicant’s consequences were not ‘severe’ for the purpose of s 93(17)(c) of the Transport Accident Act 1986 was plainly wrong;
(4)The reasons of the trial judge are inadequate.
Ground 1
In support of ground 1, counsel for the applicant, in effect, submitted that the judge made three errors of principle, namely:
(a) The judge applied the wrong test in holding that, in order that a mental disorder be described as being ‘severe’, it should be at the ‘upper echelon’ of those disorders of the possible range set out in paragraph 82 of the judge’s reasons.
(b) Accordingly, the judge focused on the severity of the applicant’s injury, rather than the seriousness of the consequences of that injury to the applicant.
(c) Insofar as the judge considered the consequences of the applicant’s injuries, his Honour erred by focusing on the capacities that he found the applicant had retained, rather than making findings as to the consequences suffered by the applicant, and determining whether those consequences satisfied the applicable test.
In considering those arguments, it is important to bear in mind that the judge was required to determine whether the injury, relied on by the applicant, was a ‘serious injury’, for the purposes of s 93(6) of the Transport Accident Act. As the applicant relied solely on the psychological injuries that she had sustained as a result of the transport accident, the definition of ‘serious injury’ in s 93(17)(c) of the Act required the applicant to satisfy the judge that she had suffered a ‘severe long term mental or severe long term behavioural disturbance or disorder’.[9] The word ‘severe’, in that definition, is of stronger force than ‘serious’, which is used in the preceding definition of a physical injury in s 93(17)(a) of the Act. It follows, therefore, that, in order to establish a serious injury under s 93(17)(c), the applicant was required to demonstrate that her psychological injury, and the consequences of that injury, were more significant than an injury which could be described as ‘very considerable’.[10]
[9]At the time of the transport accident, s 93(17A) had not been enacted.
[10]Mobilio v Balliotis & Ors [1998] 3 VR 833, 834–5 (Winneke P), 846 (Brooking JA); Rodda v Transport Accident Commission [2008] VSCA 276, [3] (Hargrave AJA); Noonan v The State of Victoria [2013] VSCA 289, [8] (Osborn JA).
Bearing those principles in mind, I turn to the three points relied on by the applicant in support of ground 1. The first two points, as argued on behalf of the applicant, are interrelated, and can be dealt with together. The submission, relating to the first point, concerned the test postulated by the judge in paragraph 82 of the reasons, set out above. It was submitted that that test focused solely on the nature and severity of the mental disorder suffered by the applicant and the treatment received by the applicant for that disorder, rather than the consequences of that disorder. Counsel pointed out that a major psychological injury might not lead to severe consequences, but, conversely, a relatively minor injury or disorder might produce severe consequences. For example, a person may suffer depression that is susceptible to treatment, but which nevertheless is such as to disable that person from being able to continue in his or her chosen occupation. In such a case, it was submitted, notwithstanding that the injury and its symptoms may not have been severe, nevertheless the consequences of it would satisfy that requirement.
Counsel further submitted that, although the judge proceeded to consider, in the following paragraphs of the reasons, the consequences to the applicant of the disorder suffered by her, his Honour did so through the ‘prism’ of the incorrect test. Counsel submitted that the fact, that the passage in the judge’s reasons commenced with the postulation of the test in terms of the severity of the injury and its symptoms, affected the manner in which the judge viewed those consequences, and the effects which the disability had on the applicant’s life.
In response, counsel for the respondent submitted that the judge correctly stated the test to be applied in determining whether the mental disorder, relied on by the applicant, was severe for the purpose of s 93(17)(c) of the Act. Counsel submitted that it is appropriate, and indeed necessary, for the judge to determine where the applicant’s disorder might fit within the possible range of impairments of those suffering from a mental disorder. Counsel contended that, properly construed, paragraph 82 of the judge’s reasons did not focus solely, or exclusively, on the injury or the symptoms, but also referred to the consequences of the disorder. Thus, in the following four paragraphs of the reasons, the judge considered, in some detail, both the symptoms of the applicant’s disorder, and the consequences to her arising from that disorder.
In considering the issues raised by the submissions to which I referred, it is convenient to commence by making three preliminary observations.
First, it is relevant, and indeed important, for a judge, considering an application under s 93 of the Act, to assess how the disorder, suffered by the applicant, fits within the range of such possible disorders. In Humphreys v Poljak,[11] Crockett and Southwell JJ prescribed the test to be applied in respect of a physical injury, in terms that have been approved and applied during the last 25 years. Relevantly, their Honours stated:
To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?[12]
[11][1992] 2 VR 129.
[12]Above, [140]; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, 644 [47] (Phillips JA).
Similarly, in Dwyer v Calco Timbers Pty Ltd (No 2)[13] Ashley JA (with whom Nettle JA and Dodds-Streeton JA agreed) stated:
Whether the consequences of compensable injury for an applicant satisfy the test is to be assessed having regard to the spectrum of all cases, not simply those which end up in litigation. The latter may be supposed to be – which is not to say that they are - cases in which the consequences are not glaringly apparent one way or the other.[14]
[13][2008] VSCA 260.
[14]Above, [7]; see also Stijepic v One Force Group Pty Ltd & Anor [2009] VSCA 181, [42] (Ashley and Beach JJA); Sutton v Laminex Group Pty Ltd (2011) 31 VR 100, 117 [89] (Tate JA).
Secondly, as I have already noted, the test for determining whether a mental disorder is severe for the purposes of s 93(17)(c) of the Act is particularly stringent, requiring, as the judge correctly pointed out, that the disorder be properly characterised as involving a more significant injury and consequences than an injury that is ‘very considerable’.
Thirdly, an assessment, of the question whether a psychological or mental disorder constitutes a ‘severe long term mental or severe long term behavioural disturbance or disorder’, for the purpose of subparagraph (c) of the definition of ‘serious injury’ in s 93(17) of the Act, must involve, and take into account, both the nature and severity of the disorder, and its symptoms, as well as the consequences to the particular applicant resulting from that disorder. The definition, contained in subparagraph (c), requires that the injury in question constitute a severe long term mental or behavioural disturbance or disorder. Self-evidently, the nature and severity of any disorder may only be determined by reference to its symptomatology, the treatment required for it, and its effect on and consequences for the particular person in question. Each of those matters are inter-related factors relevant to a determination of whether the applicant’s condition satisfies the criteria stipulated in paragraph (c) of s 93(17) of the Act.[15]
[15]Turner v Love (1995) 21 MVR 314, 323-‘4 (Hedigan and Ashley JJ); Richards v Wylie (2000) 1 VR 79, 87 [16] (Winneke P); Hunter v Transport Accident Commission [2005] VSCA 1, [43] (Nettle JA).
In essence, such an assessment would ordinarily involve an evaluation of the diagnosed disorder, its symptoms, and the nature and extent of the treatment undertaken, or required, in respect of the disorder, together with the effects of the disorder on the capacity of the applicant to undertake his or her usual occupational, recreational, social and domestic activities. In that evaluation, the nature and extent of the treatment necessitated by the disorder is relevant to a proper appreciation of the degree of its seriousness. Equally, such an appreciation is ordinarily also informed by an analysis of the ordinary activities of the applicant before the disorder, as compared with the activities able to be undertaken by the applicant after the disorder.
With those observations in mind, I turn to the first submission made by the applicant under ground 1, that the judge postulated and applied a test that incorrectly referred solely to the symptoms and nature of the psychological disorder of the applicant, without reference to her consequences. In my view, having regard to the totality of paragraph 82 of the judge’s reasons standing alone, but, more particularly, considering that paragraph in the context of the passages of the reasons that follow, the submission by the applicant does not correctly characterise the test postulated and applied by the judge.
In the first part of paragraph 82 of the reasons, the judge noted, in terms that are unexceptionable, that the word ‘severe’ is of greater force than ‘serious’, indicating ‘a more significant injury and consequences’ (emphasis added) than that required in respect of a physical injury. The judge then compared the two extreme ends of the spectrum in the vast range of possible mental impairments. On the one hand, at the mildest extreme, is mild anxiety, which does not require any treatment and which, self-evidently, would have no effective consequences for the particular individual. The judge then stated ‘at the other end of the spectrum are those disorders which provoke the most extreme symptoms and consequences …’ (emphasis added). Those disorders — ‘psychoses, admission to psychiatric hospitals as an inpatient, delusional beliefs and thoughts, suicidal ideation and suicide attempts’ — each, of necessity could only have consequences for the person suffering the disorders that are severely disabling.
Accordingly, I am not persuaded that, in that passage, when read in isolation, the judge stated a test that focused solely, or primarily, on the nature of the disorder, its treatment and symptoms, to the exclusion of a proper consideration of its consequences for the applicant. Rather, it is clear that the judge articulated a test that correctly took into account each of the relevant considerations to which I have referred, including the consequences of the applicant’s mental disorder on her capacity to conduct her life as she had before the transport accident.
However, and in any event, any ambiguity in the test, postulated by the judge in paragraph 82 of the reasons, is dispelled by a proper consideration of the next four concluding paragraphs of the judge’s reasons, which I have set out earlier. In them, the judge described the range of symptoms suffered by the applicant (flashbacks and nightmares), together with the consequences of her disorder, including her fear of driving, loss of confidence, inability to concentrate, inability to undertake ongoing studies, difficulty sleeping, and limitations in looking after her grandchildren. The judge noted that he had reservations about the applicant’s ‘… descriptions of her symptoms and the effect upon her of the diagnosed psychological condition’. (Emphasis added). The judge stated that he did not consider that the applicant’s condition was as extreme as she described it, bearing in mind that the applicant had ‘… retained the following capacities notwithstanding her symptoms’. Pausing there, in that passage, the judge clearly distinguished between the applicant’s symptoms, and the consequences of them in terms of her capacity to conduct her day to day life.
The judge then referred to those capacities in the seven points outlined in paragraph 85. The first six points related to the direct consequences to the applicant of her mental disorder, namely, her capacity to live independently and undertake domestic tasks, her ability to drive a motor vehicle, her capacity to look after her grandchildren, her involvement with her grandchildren and their activities, her social life, and her ability to manage (with the assistance of agents) her investments. The seventh point dealt with the applicant’s symptoms, noting that while the applicant had received considerable treatment and medication, she had not been an inpatient in a psychiatric institution, nor had she suffered the more extreme symptoms of psychological trauma described in paragraphs 82 of the reasons.
The critical point is that, in that paragraph, the judge focused substantially on the applicant’s capacities, and the restrictions on them resulting from her mental disorder. It was that analysis that the judge picked up in the final substantive paragraph of his reasons. At the risk of repetition, the judge there stated that ‘balancing’ the extent to which the applicant had ‘suffered psychological consequences’ (emphasis added), with, on the other hand ‘the extent to which she has been able to maintain her involvement in social, recreational and domestic matters’, he was not satisfied that she satisfied the requisite statutory test. It is clear, in that respect, that the judge focused, principally, on the consequences to the applicant of her disorder, rather than on its symptomatology or the nature and extent of the treatment she had received in respect of it.
The foregoing analysis of the judge’s reasons makes it plain that the judge did not adopt or apply a test that focused solely, or primarily, on determining whether the symptoms of the applicant’s disorder, and the treatment she had received for it, were such that the disorder might be described as ‘severe’. Rather, the judge correctly and appropriately applied a test, that took into account, as it should, the nature of the applicant’s disorder, its symptomatology, its treatment, and the consequences of it to her.
I do not accept that there is any aspect of the concluding four paragraphs of the judge’s reasons that indicate, or reflect, that the judge decided the relevant question through the ‘prism’ of the incorrect test, as contended by the applicant. Nor, in light of the analysis of the judge’s reasons, which I have set out above, am I persuaded that the judge incorrectly focused on the severity of the applicant’s injury, rather than sufficiently taking into account the seriousness of the consequences of that injury to the applicant. For those reasons, I reject the first two points relied on by the applicant in support of ground 1.
The third point, relied on by the applicant in support of ground 1, is that the judge erred by focusing on the capacities that his Honour found the applicant had retained, rather than making findings as to the consequences suffered by the applicant, and determining whether those consequences satisfied the statutory test.
It was submitted that the judge did not approach his consideration of the applicant’s injury by reference to whether the consequences, suffered by the applicant, as a result of those injuries, were severe. Rather, he ‘balanced’ the applicant’s psychological consequences against the extent to which she had been able to maintain her involvement in social, recreational and domestic matters.[16] It was submitted that the judge was required to consider whether the consequences of the applicant’s psychological injury were severe. The capacities, retained by the applicant, were only relevant to assessing those consequences. Thus, it was submitted the judge’s focus should have been, but was not, on consequences, rather than what the applicant had retained.
[16]Reasons [86].
In response, counsel for the respondent submitted that the judge correctly considered the consequences of the applicant’s injuries, and the capacities that the applicant had retained notwithstanding her symptoms. It was submitted that consideration of both aspects is an inherent part of the analysis as to whether the consequences of the injury to the applicant were severe. Thus, the judge was correct to balance the consequences suffered by the applicant on the one hand, with her residual capacity to be involved in social, recreational and domestic matters, in determining that the applicant did not meet the requisite statutory test.
As a matter of logic, and authority, it is clear that, in determining whether the consequences of an injury are serious (or, in the case of a psychological injury, severe), the court is required to take into account both what the applicant has been precluded from doing, and also the retained capacity of the applicant to carry out tasks and functions performed before the injury.
In Dwyer v Calco Timbers Pty Ltd (No 2),[17] Ashley JA (with whom Nettle JA and Dodds-Streeton JA agreed) stated:
… I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.[18]
[17][2008] VSCA 260.
[18]Citation above, [27]; see also Stijepivic v One Force Group Australia [2009] VSCA 181, [44] (Ashley JA and Beach AJA); Sutton v Laminex Group Pty Ltd (2011) 31 VR 100, 114–115 [76] (Tate JA).
Similarly, in Wesfarmers Ltd v Lloyd,[19] Osborn JA stated:
… the trial judge was required to have regard to what was retained by Mr Lloyd in order to ascertain the consequences which the injury had caused by way of a full before and after analysis, and to enable a proper assessment of the relative seriousness of what had been lost.[20]
[19][2016] VSCA 41.
[20]Citation above [17].
The approach by the judge, in determining the question before him, was entirely consistent with those propositions. As I have stated, the judge reviewed the evidence of the applicant, and of the medical practitioners, in some detail. His Honour expressed significant reservations about the credibility of the applicant, and, in particular, reservations about the extent to which her psychological symptoms ‘… have impacted upon her life’.[21] Subsequently, in the passage referred to by the applicant, the judge expressed reservations about the applicant’s description of her symptoms and ‘… the effect upon her of the diagnosed psychological condition’. The judge accepted that the applicant had incurred specific symptoms, and consequences, described by her, including, as I stated, flashbacks, nightmares, fear of driving, lack of concentration, reduced capacity to look after her grandchildren, and difficulty sleeping.[22] It was in that context that the judge then referred to the capacities, that the applicant had retained. In that way, it is clear that the judge did not give primacy to those retained capacities, but, rather, he balanced them against the consequences which the judge was persuaded had been suffered by the applicant as a consequence of her psychological injury.
[21]Reasons [78].
[22]Reasons [83]–[84].
Accordingly, the judge, in my view, correctly and appropriately analysed the consequences to the applicant in a manner that was in conformity with the principles to which I have referred.
For the foregoing reasons, I reject ground 1.
Grounds 2 and 3
Grounds 2 and 3 were argued together. It was submitted that the decision of the judge, that the applicant’s disorder was not severe, was plainly wrong, in light of the evidence accepted by the judge. In particular, it was submitted that, having accepted the medical evidence relating to the applicant’s psychiatric condition, and having found (it was contended) that the applicant was a credible witness, the judge should have concluded that the consequences to the applicant of her mental disorder satisfied the statutory test.
In support of that submission, it was contended that, notwithstanding that the judge expressed some reservations about aspects of the applicant’s evidence, he nevertheless found her to be a credible witness. Counsel referred to the description given by the applicant of the consequences to her of her disorder, including the nightmares and flashbacks that she regularly experienced, her sleep difficulties, her loss of ability to pursue further tertiary studies, her reduced capacity to look after and relate to her grandchildren, her limited social life, and the need that she had for ongoing continuing psychological treatment, including medication. In addition, the judge accepted the evidence of the applicant’s treating practitioners, and he concluded that the applicant had suffered a post-traumatic stress disorder, and either a major depressive disorder or an adjustment disorder, following the accident. Further, it was contended that the judge’s description of the capacities of the applicant that had been ‘retained’ reinforced the dimension of the capacities that had been lost to her, and the consequences of the disorder to her. Thus, it was submitted that it was not open to the judge to conclude otherwise than that the applicant had suffered a severe mental disorder consistent with the test specified in subparagraph (c) of s 93(17) of the Act.
In response, counsel for the respondent noted that the decision of the judge involved elements of fact, degree and impression, in which the judge had the important advantage, not available to this Court, of seeing and hearing the applicant give evidence. It was submitted that, in light of the matters set out by the judge in paragraph 85 of the reasons, and, in particular, in light of the capacities that the applicant had retained, it was open to the judge to conclude that the mental disorder suffered by the applicant did not satisfy the statutory test specified in s 93(17)(c) of the Act.
In order to succeed on grounds 2 and 3, the applicant must demonstrate that the decision of the judge was plainly wrong.[23] The assessment of whether an applicant has suffered an injury that is serious, for the purposes of the statutory test, essentially involves matters of judgment and impression by the primary judge. In such a case, the credibility of the applicant usually plays an integral part in the assessment by the primary judge of the nature and extent of the injury complained of by the applicant and its consequences. In that respect, the judge has the invaluable advantage of having observed the applicant under cross-examination, an advantage which cannot, to any meaningful extent, be replicated by a plain reading of the transcript.[24] It is for that reason that it is not sufficient that this Court might have reached a different decision, had it heard the case at first instance. Rather, as I stated, the decision of the primary judge must be demonstrated to be wholly wrong or patently unsustainable. Self-evidently, where, as I stated, the assessment by the primary judge involved issues of value judgment and impression, it is difficult in such a case for an appellant to demonstrate that the judge’s evaluation was erroneous in that way.[25]
[23]Mobilio v Balliotis [1998] 3 VR 833, 836 and following (Brooking JA), 859 (Phillips JA); Transport Accident Commission v Kamel [2011] VSCA 110, [69] (Kyrou AJA); Phelan v Transport Accident Commission [2013] VSCA 306, [3] (Ashley JA); Merhi v Ford Motor Car Limited [2014] VSCA 328, [76] (Neave JA).
[24]Mobilio v Balliotis, 836 (Brooking JA); Glover v State of Victoria [1998] VSCA 93, [27] (Ormiston JA); Richards v Wylie (2000) 1 VR 79, 86 [15] (Winneke P); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, 648 [48] (Phillips JA).
[25]Cowden v Transport Accident Commission [2003] VSCA 198, [18] (Buchanan JA); Bezzina v Phi & Anor [2012] VSCA 161, [27] (Harper JA and Beach AJA); Davidson v Transport Accident Commission [2015] VSCA 12, [43] (Ashley, Whelan and Beach JJA).
Contrary to the submissions made on behalf of the applicant, the judge did make adverse findings against the applicant on the issue of her credibility. As I pointed out, the judge accepted that he should have ‘significant reservations’ about the applicant’s credibility. He found the applicant to be an ‘unsatisfactory witness’. In particular, her evidence caused the judge to have reservations about the extent to which her psychological symptoms had impacted on her life.[26] While, it is correct to observe, the judge did not reject the applicant’s evidence about the effect on her of the accident, nevertheless the judge expressly stated that he had reservations about the description of her symptoms, and the effect of those symptoms on her. Thus, contrary to the submission of the applicant, it is not appropriate, on this application, to assess the effect of the applicant’s disorder on her by reference solely to the description of her symptoms, and the consequences, contained in her affidavits.
[26]Reasons [78].
It is correct, as the applicant’s counsel points out, that the judge did accept the evidence of the applicant’s treating practitioners, and he accepted their opinions that she suffered a post-traumatic stress disorder, and either a major depressive disorder or an adjustment disorder. The fact that the judge was prepared to accept that the applicant might have suffered a major depressive disorder does, of itself, give pause for reflection in considering grounds 2 and 3. However, it must be borne in mind that, in final address, the debate before the judge centred, significantly, on the nature and impact of the applicant’s symptoms on her life, as distinct from an assessment of the correct description to be given to the applicant’s condition. At a relatively early stage in the final address made on behalf of counsel for the applicant, the judge stated:
But does it matter so much what the labels are? … The real issue is the consequences to the plaintiff … of the psychological injury, whatever you label it to be.
In further exchanges with counsel, the judge reiterated that he did not consider it mattered ‘… whether you label it as major depressive disorder or adjustment disorder, or with symptoms of post-traumatic stress … ‘. His Honour added, ‘I’m not so concerned about labels’.
Thus, the focus of the judge’s reasons, and of his consideration of the applicant’s condition, was on the applicant’s symptoms, and their effect on her life, than on the technical appellation given to her disorder.
Certainly, it cannot be gainsaid that the effect of the applicant’s disorder on her life was substantial. The symptoms of the disorder, which she suffered, and which were accepted by the judge, could only have had a significant effect on her life. However, as I stated, the judge had the invaluable advantage of observing the applicant under cross-examination, and of gaining an impression in that way of the extent to which the applicant’s disorder had affected and interfered with her life. In light of the capacities that the judge found the applicant had retained, I do not consider that it can be maintained that it was plainly wrong or wholly erroneous for the judge to have concluded that the applicant did not suffer a severe mental disorder, for the purposes of s 93(17)(c) of the Act. Accordingly, the applicant has failed to make out grounds 2 and 3.
Ground 4
In support of ground 4, counsel for the applicant submitted that the judge, in his reasons, failed to explain why he did not conclude that the applicant had suffered a severe mental disorder, notwithstanding his acceptance of the medical evidence relied on by the applicant, and notwithstanding the judge’s findings as to the consequences of the applicant’s disorder.
It is well established that, when a judge decides an application under s 93 of the Act, the judge must provide adequate reasons for his or her decision. In particular, the judge’s reasons must be sufficient to disclose the line of reasoning adopted by the judge that led to the ultimate conclusion.[27]
[27]Hunter v Transport Accident Commission & Anor [2005] VSCA 1, [21]–[22] (Nettle JA); Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38] (Ashley JA).
In the present case, the primary judge’s reasons complied with that requirement. The judge set out, in substantial detail, the reasons why he had reservations concerning the evidence given by the applicant, particularly about the extent to which her psychological symptoms had impacted on her life. The judge adequately noted the range of symptoms, and effects on the applicant, that he found to have been established as consequences of her mental disorder. His Honour then concluded that, in light of the applicant’s residual capacities (that he described in some detail), he did not conclude that the psychological consequences to her were sufficient to meet the required statutory test. In that way, the reasons adequately disclosed to the applicant, and to this Court, the basis upon which the judge found that the application before him must fail. Accordingly, I do not accept ground 4 of the application.
Conclusion
For the foregoing reasons, I do not accept any of the grounds of appeal sought to be relied upon by the applicant. While I consider that those grounds, and in particular the first ground, were sufficiently arguable to merit the grant of leave to appeal, having granted such leave, I would dismiss the appeal.
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