Katanas v Transport Accident Commission

The High Court has dismissed an appeal from a decision of the Victorian Court of Appeal on statutory assessments of whether a mental disorder is ‘severe’ in the context of transport accidents. The appellant was injured in a car accident and was diagnosed with post-traumatic stress disorder. Section 93 of the Transport Accident Act 1986 (Vic) allows for a transport accident victim to recover damages for injuries suffered, including ‘severe’ mental disorders. While the Act does not define the meaning of ‘severe’, the ‘narrative test’ in Victoria was stated in Humphreys v Poljak [1992] VicRp 58 (emphasis added by the High Court, at [4]):

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’?

The trial judge held that the appellant’s PTSD was due to the accident, but given the wide range of social, recreational and domestic matters that she participated in, it failed to reach the threshold of ‘severity’ require by the statue and the test. The VSCA held, by majority, that the trial judge erred in approaching severity as determined by whether the disorder was at the ‘higher echelons’ of a ‘spectrum’ from ranging from mild anxieties to extreme symptoms and consequences. Before the High Court, the appellant contended that the VSCA had erred in ‘casting aside’ or ‘trampling upon’ the narrative test, specifically in not comparing this injury with a wide range of comparable cases and by introducing an apparently new concept of a ‘line’

The High Court (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ) unanimously dismissed the appeal, holding that the VSCA had not departed from the narrative test. The primary judge’s ‘possible range’ was clearly incomplete because it took the extent of treatment that the disorder required as the only criterion of the comparative severity of am mental disorder, which preclude the consideration of other relevant criteria (symptoms, consequences, inhibition to daily activities, family life, educational pursuits) and caused the assessment to miscarry: at [21]. Contrary to the appellant’s contentions, the VSCA did not reject the use of a range or spectrum of injuries, but merely noted the limited utility that it might have in assessing mental disorders, particularly because the amount of treatment may not necessarily be indicative of the severity of the disorder (at [22]–[23]). Nor did the Court ‘trample upon’ the test in Humphries: the majority expressly identified it as the relevant test, noted the primary judge’s error in applying only one of its several criteria (at [24]). Their Honours acknowledgement of the the test’s limitations did not mean that any spectrum would be incomplete, but instead ‘rightly emphasises in plain and appropriate language that, in making an assessment of the severity of a mental disorder or disturbance by comparison to the range or spectrum of comparable cases, a judge must identify and bring to account all of the factors which emerge on the evidence as relevant to the assessment. There is nothing new in that proposition. It has been the case for the 25 years since Humphries v Poljak was decided.’ (at [25]). Finally, the High Court rejected the appellant’s contention that the VSCA wrongly introduced a new concept in suggesting that judges may be assisted by their personal experience of earlier cases: instead that observation emphasised the ‘long-recognised reality’ that the test is applied by judges with familiarity with a range of conditions, within which the particular condition falls, and thus the narrative test’s application is likely to turn on the judge’s conclusion on which ‘side of the line’ the particular condition falls (at [27]). A second line of argument, that the VSCA had misunderstood the trial judge’s formulation of the ‘range’ was introduced by the appellant at the oral hearing before the Full Court but had not received special leave: the Court refused to entertain those contentions (at [1]–[2], and see at [28]–[29] on a rejected to open another line of argument, that the VSCA failed to give adequate reasons).

High Court Judgment [2017] HCA 32 17 August 2017
Result Appeal dismissed
High Court Documents Katanas
Full Court Hearing [2017] HCATrans 102 11 May 2017
Special Leave Hearing [2016] HCATrans 286 18 November 2016
Appeal from VSCA [2016] VSCA 140 17 June 2016
Trial Judgment, VCC
[2015] VCC 1156 28 August 2015
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.