Mason v Transport Accident Commission - [2014] VSCA 267

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0164

KATHLEEN MASON	Applicant
	v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	WARREN CJ, ASHLEY and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2014
DATE OF JUDGMENT:	24 October 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 267
JUDGMENT APPEALED FROM:	Mason v Transport Accident Commission [2013] VCC 1461 (Judge Hogan)

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ACCIDENT COMPENSATION — Application for leave to appeal — Transport Accident Act 1986, s 93(4)(d) — ‘Serious injury’ — Whether pre-existing psychiatric or psychological injury — Whether causation established — Sufficiency of trial judge’s reasons — Applicant did not provide full history to psychiatric and psychological experts— Reasons sufficiently revealed applicant’s claim failed because trial judge not satisfied of reliability of applicant’s account of symptoms to psychiatric and psychological experts — Trial judge correct in finding causation not established on the evidence — Application for leave granted — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A D B Ingram with Mr E Makowski	Slater & Gordon Ltd
For the Respondent	Mr J Ruskin QC with Ms K E Foley	Wisewould Mahony

WARREN CJ:

I have had the benefit of reading in draft form the reasons for judgment of both Ashley and Whelan JJA. I agree with their Honours that the appeal should be dismissed. Both of their Honours found that the trial judge did not err in her assessment of the applicant’s medical history and causes of her various injuries and conditions. While there is some divergence between their Honours regarding the relevance of the applicant’s reporting of Post-Traumatic Stress Disorder (PTSD) it is unnecessary for me to decide this point. Either way the applicant cannot succeed. I would make orders as proposed by Whelan JA.

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Whelan JA. They explain the way in which the judge below approached the matter, and, in doing so, they discuss much of the evidence which was before her Honour. I am thus able to express my conclusions without any lengthy recapitulation of the evidence.

The issues for determination

What was under challenge in this Court was the order dismissing the application by Ms Mason (conveniently, ‘the applicant’) for leave to bring a proceeding for damages pursuant to s 93 of the Transport Accident Act1986. There were two parts to the attack.

First, the applicant contended that the trial judge had erred in failing to be satisfied that the applicant had established that any psychiatric injury from which she was suffering at time of hearing had as a cause the events of, and associated with, the road traffic accident involving her mother in 2006 and her mother’s death thereafter (conveniently, ‘the 2006 events’). As explained in Phelan v TAC,[1] in a

passage cited by Whelan JA, that raises an issue for determination by this Court by way of rehearing. This Court must give the judgment which, in its opinion, ought…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSCA 267
Decision Date: 24 October 2014

CaseChat Overview and Summary

In the matter of Mason v Transport Accident Commission, the applicant, Mason, sought leave to appeal a decision that denied her claim for compensation under the Transport Accident Act 1986. Mason claimed that she suffered a serious injury as a result of an accident, which she argued aggravated a pre-existing psychiatric or psychological condition. The court was tasked with determining whether the trial judge's reasons for dismissing Mason's claim were sufficient, and whether the causation of the injury was established.

The legal issues centred on whether the trial judge provided adequate reasons for dismissing Mason’s claim, and whether the evidence presented was sufficient to establish that Mason’s pre-existing condition was aggravated by the accident. The court examined whether Mason’s failure to provide a full history to the psychiatric and psychological experts influenced the trial judge’s assessment of her credibility and whether the trial judge was correct in finding that causation was not established.

The court found that the trial judge’s reasons were sufficient and appropriately detailed Mason’s claim's failure. It was noted that the trial judge was not satisfied with the reliability of Mason’s account of her symptoms to the experts, which was a critical factor in assessing her condition. The court held that the trial judge correctly determined that causation was not established based on the evidence presented. Consequently, the application for leave to appeal was granted, but the appeal itself was dismissed.

The final orders of the court were to grant Mason leave to appeal but to dismiss the appeal on the grounds that the trial judge's decision was well-reasoned and supported by the evidence.

Orders