Katanas - High Court dismisses TAC's appeal

  • Author : Lachlan Allan - 29-08-2017

The High Court today unanimously dismissed the TAC's appeal in the matter of Transport Accident Commission v Katanas [2017] HCA 32.

My previous article on the case, which summarises the trial at first instance, the Victorian Supreme Court of Appeal's decision, and the appeal, can be found here.

The TAC's two contentions on appeal

The High Court (Kiefel CJ, Keane, Nettle, Gordan and Edelman JJ) summarised the grounds of appeal pressed by the TAC at the hearing of the application for leave as follows [1]:

"...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 had misunderstood the primary judge's formulation of the "possible range" and thereby fallen into error"

As to the first contention, the High Court upheld the Court of Appeals' rejection of the "possible range" of sub-paragraph (c) cases formulated by the trial judge, and said that [21]:

 "Assuming that the majority were correct in their characterisation of the primary judge's formulation of the "possible range", it is clear that the range, as so formulated, was incomplete because it had regard to only one criterion of the comparative severity of a mental disorder or disturbance: the extent of treatment made necessary by the disorder or disturbance. That precluded consideration of other relevant criteria of comparative severity – for example, in this case, the severity of the respondent's symptoms; the severity of their consequences for her; and the extent to which the symptoms or consequences inhibited the respondent's daily activities, family life, social life and educational pursuits. Because the range as formulated was incomplete, it was prone to skew the assessment of severity and cause the assessment to miscarry."

The High Court accepted the Court of Appeal's characterisation of the "range" as simply being one component of the overall test [22]:

"The majority of the Court of Appeal did not state that the concept of a range or spectrum of injuries, as such, was of limited utility. To the contrary, they explicitly embraced the concept of the range as part of the narrative test."

(emphasis added)

And further, at [25]-[26]:

"Contrary also to the appellant's submissions, for the majority to conclude that the range as formulated by the primary judge was of "limited utility" in the assessment of a mental disorder or disturbance does not mean that any attempt to frame a relevant range or spectrum will invariably be incomplete. Rather, it 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.

Contrary to the appellant's final submission, the majority's observation that a judge would be assisted by his or her personal experience of cases which have fallen "on one side of the line or the other" did not introduce a new and unexplained concept."

The TAC's second contention was given short shrift, with the High Court saying at [2] that:

"...the appellant's alternative contention, alleging a misunderstanding of the primary judge's formulation of the range, is not a ground for which special leave was granted. It raises no question of general importance. It should not be entertained."

The High Court's general comments on psychiatric injuries

In obiter comments at [29], the Court noted with approval an "important point" made by the Court of Appeal in relation to the sometimes-blurred lines between the "symptoms" and "consequences" of a psychiatric injury:

"... 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. 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."

(emphasis added)

About the Author

Lachlan Allan

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