S A O'Meara QC with S D Martin for the appellant (instructed by Hall & Wilcox Lawyers)
M F Wheelahan QC with M J Hooper for the respondent (instructed by Zaparas Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Transport Accident Commission v Katanas
Accident compensation – Transport accident – Statutory compensation scheme – Where respondent involved in motor vehicle accident and subsequently suffered mental disorder or disturbance – Where mental disorder or disturbance required to be "severe" to allow bringing of common law proceedings – Where respondent did not require inpatient psychiatric treatment – Where respondent found not to have suffered symptoms of psychological trauma at upper echelon of range – Whether severity of mental disorder or disturbance assessed only by reference to extent of treatment – Whether narrative test laid down in Humphries v Poljak [1992] 2 VR 129 followed by Court of Appeal.
Words and phrases – "mental disturbance or disorder", "narrative test", "range or spectrum of comparable cases", "serious injury", "severe", "symptoms and consequences".
KIEFEL CJ, KEANE, NETTLE, GORDON AND EDELMAN JJ. This appeal raises for consideration the application of the narrative test of serious injury for the purpose of s 93(17) of the Transport Accident Act1986 (Vic) ("the narrative test") laid down in Humphries v Poljak[1]. There is only one ground of appeal: that the majority of the Court of Appeal of the Supreme Court of Victoria (Ashley and Osborn JJA, Kaye JA dissenting) erred in holding that the primary judge misdirected himself as to the application of the narrative test. Special leave to appeal was granted because the appeal was said to raise a question of principle of general importance. As put at the application for special leave, that question was whether the majority of the Court of Appeal erred by casting aside or "trampling upon" the narrative test – particularly that part of it which calls for a comparison of the case in suit with other cases in the range of comparable cases – and substituting a new and unprecedented test of bringing to account the subjective symptoms and consequences of an alleged serious injury and assessing their significance by reference to a new and unexplained concept of a "line"[2]. When the appeal came on for hearing, however, it became apparent that the appellant's oral argument was directed to two contentions: the contention that the majority had trampled upon the narrative test; and an alternative contention – which was nowhere as such identified in the appellant's written submissions – that the majority of the Court of Appeal…
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
AGLC
Transport Accident Commission v Katanas [2017] HCA 32
Case
[2017] HCA 32
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Victorian Court of Appeal concerning the assessment of a "severe" mental disorder or disturbance for the purposes of bringing common law proceedings under a statutory compensation scheme. The appeal involved the Transport Accident Commission (TAC) and the respondent, who had suffered a mental disorder following a motor vehicle accident. The central dispute revolved around whether the respondent's mental disorder met the statutory threshold of severity, particularly in light of her not requiring inpatient psychiatric treatment and her symptoms not being at the "upper echelon" of the range.
The legal issues before the High Court were whether the severity of a mental disorder or disturbance should be assessed solely by reference to the extent of treatment received, and whether the "narrative test" as laid down in *Humphries v Poljak* had been correctly applied by the Court of Appeal. The narrative test involves a two-stage process: first, assessing the subjective seriousness of the injury's nature, symptoms, and consequences, and second, objectively determining its seriousness by comparing it to a spectrum of comparable cases.
The High Court, in dismissing the appeal, affirmed the principles of the narrative test. The Court reasoned that the severity of a mental disorder is not to be determined solely by the extent of treatment received. Instead, it requires a holistic assessment of the injury's nature, symptoms, and consequences. The Court noted that in cases of mental disorder, symptoms and consequences can often elide, meaning what might be considered a symptom can also be a consequence, and both are relevant to assessing severity. The Court found that the Court of Appeal had correctly applied the narrative test in its assessment of the respondent's condition.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
As appears from Humphries v Poljak, the application of the narrative test entails a two-stage process:(1) an assessment of whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the applicant, "serious" or, in the case of mental or behavioural disturbance or disorder, "severe"; and(2) a determination of whether the injury as thus assessed is objectively "serious" or, in the case of mental or behavioural disturbance or disorder, "severe" when compared with the range or "spectrum"[5] of comparable cases. [5]See, for example, Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [7] per Ashley JA (Nettle JA and Dodds-Streeton JA agreeing at [1], [31]); Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at [42] per Ashley JA and Beach AJA; Sutton v Laminex GroupPty Ltd (2011) 31 VR 100 at 117 [89] per Tate JA (Ashley JA and Hargrave AJA agreeing at 102 [1], 121 [115]).The facts The respondent was born in Greece in 1945 and migrated to Australia in 1962. She married in 1964 and was employed in various positions until the early to mid-1990s. From 1995, she looked after several of her grandchildren on a regular basis. In the period from 1998, she obtained the Victorian Certificate of Education, a Diploma of Modern Greek Language and a Bachelor of Arts degree, as well as completing a course which entitled her to operate a taxi licence. Her husband died in 2005. At about 7.00 pm on 10 July 2010, the respondent was driving her car on Princes Highway, Mulgrave, on her way home. After stopping at a red light at the intersection of Princes Highway and Springvale Road, and waiting until the light had changed to green, she proceeded into the intersection. At that point another vehicle collided with the driver's side of her car. It is not clear whether she lost consciousness but she suffered multiple fractures of her left rib, seatbelt bruising, severe chest pain, a laceration to her left knee and damage to some of the teeth in her lower jaw. She was conveyed by ambulance to the Alfred Hospital and remained there until discharged on 14 July 2010. Following her discharge from hospital, the respondent attended on her general practitioner, Dr Chan. Dr Chan prescribed pain medication and referred the respondent for physiotherapy. Thereafter, the respondent attended on Dr Chan on several further occasions, complaining of pain, lowered mood, nightmares and daytime thoughts of the accident. On 26 October 2010, the respondent reported to Dr Chan that she had returned to 70 per cent of her pre‑accident physical function. In November 2010, Dr Chan referred the respondent to a psychologist, Dr Alvarenga, whom the respondent thereafter continued to see for treatment until about mid-2014 and then again from about the middle of 2015. In the course of that treatment, Dr Alvarenga referred the respondent to a clinical psychologist, Dr Raj, for eye movement desensitisation and reprocessing treatment to assist with the respondent's flashbacks and distressing memories of being trapped in the car. After that treatment, the respondent reported to Dr Alvarenga that she had experienced some relief from intrusive memories. Throughout 2011 and 2012, the respondent continued to attend on Dr Chan for treatment of neck, back, hand and knee pain suffered as a result of the accident. In 2011, Dr Chan offered anti-depressant medication to the respondent, but at that point the respondent declined. Dr Chan also offered to refer the respondent to a psychiatrist, which offer the respondent at that point also declined. In April 2013, however, the respondent felt the need for more psychological treatment to deal with recurrent flashbacks. At that point, Dr Chan prescribed anti-depressant medication and the respondent began to attend on a psychiatrist, Associate Professor Mazumdar, for further treatment.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
KIEFEL CJ, KEANE, NETTLE, GORDON AND EDELMAN JJ
(dissent)
Nonetheless, in that context, it may be observed that the majority made an important point about the difference between symptoms and consequences of psychological injuries compared to physical injuries[28]. In either case, assessment of the severity of an injury will ordinarily be informed by what is accepted as being the extent of both its symptoms and its consequences. But to speak of symptoms and consequences in the case of mental disorder or disturbance suggests a bright line distinction that may not always exist. In the case of physical injuries, the distinction tends to be clear. The majority gave as an example a claimant who suffers a spinal disc protrusion, which is an injury, that causes sciatica, which is a symptom, that causes sleeplessness, which is a consequence. Such examples can be multiplied. By contrast, in the case of mental disorder or disturbance, symptoms and consequences more often elide. No doubt, the respondent's asserted inability to undertake further education would be characterised simply as a consequence of her injury. But, as their Honours observed, her reported experience of flashbacks and nightmares might properly be described as both a symptom of her post-traumatic stress disorder, and a consequence of the disorder. It is important to bear in mind, therefore, that, in assessing the severity of mental disorders or disturbances, what might be characterised as a symptom may also be relevant as a consequence. [28]Katanas (2016) 76 MVR 161 at 165-166 [11]. Conclusion and orders The appeal should be dismissed with costs.