High Court considers the serious injury narrative test as it relates to transport accidents in Victoria5 September 2017 | Transport
This appeal by the TAC raised for consideration the application of the narrative test of serious injury for the purpose of s 93 of the Transport Accident Act 1986 (Vic) laid down in Humphries v Poljak  2 VR 129.
Whether the claimant had suffered a ‘serious injury’ for the purposes of section 93 of the Transport Accident Act 1986 (Vic).
Ms Katanas was involved in a motor vehicle accident on 10 July 2010, in which she suffered various physical injuries, including multiple fractures of her left rib, seatbelt bruising, severe chest pain, a laceration to her left knee and damage to several teeth. Subsequent to the injury, Ms Katanas developed a mental disorder including flashbacks and nightmares that prevented her from undertaking any ongoing studies, affected her sleep and her ability to look after her grandchildren, and necessitated ongoing psychological treatment. Medical evidence also indicated that Ms Katanas had suffered from post-traumatic stress disorder and either a major depressive disorder or an adjustment disorder, which was substantially related to the accident.
On 16 April 2013, Ms Katanas filed an originating motion in the County Court of Victoria seeking leave to commence common law proceedings, on the basis that her mental disorder arising from the accident, was a ‘serious injury’ pursuant to s 93(4) of the Transport Accident Act 1986 (Vic) (the TAA).
The terms ‘serious’ and ‘severe’ are not defined in the TAA, however, it was accepted that the question of whether an injury is ‘serious’ for the purpose of section 93 of the TAA was to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries v Poljak.
The Decision at Trial
The primary judge refused leave to commence common law proceedings on the basis that, although Ms Katanas had received considerable treatment and medication, she had not been an inpatient in any psychiatric institution, nor suffered the more extreme symptoms of psychological trauma, that would warrant a description of her mental disorder as ‘severe’.
The Issues on Appeal to the Court of Appeal
Ms Katanas appealed on the ground that the primary judge had misdirected himself as to the objective assessment of the severity of her mental disorder. Specifically, she alleged that his error was to set up a spectrum ranging from mild anxiety not requiring treatment to the most extreme symptoms and consequences requiring extensive treatment and medication, and so to conceive of the severity of mental disorder or disturbance solely in terms of the extent of treatment and medication which the disorder necessitated. Ms Katanas contended that this was a false and incomplete process of reasoning which caused the assessment of her injury to miscarry.
The Decision on Appeal – Victorian Court of Appeal
The majority of the Court of Appeal agreed with Ms Katanas and found that, although the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be classed as severe, this was only one among a range of considerations that needed to be taken into account. The correct approach was to bring to account all relevant circumstances personal to the claimant and apply the narrative test outlined in Humphries v Poljak, giving each identified relevant circumstance the weight which appears to be appropriate.
The issues on Appeal to the High Court of Australia
By grant of special leave, the TAC appealed the Court of Appeal’s decision, contending that it erred in holding that the primary judge misdirected himself as to the application of the narrative test. More specifically that, given that Ms Katanas did not complain of pecuniary or occupational consequences, and there was no suggestion of unnecessary treatment, the range as formulated by the primary judge was not stated in a “false and incomplete way”, but was appropriately adapted to Ms Katanas’ case.
The Decision on Appeal – High Court
The High Court dismissed the appeal and unanimously held that the Court of Appeal did not err in holding that the range as formulated by the primary judge was incomplete. The Court of Appeal was correct in its findings that the primary judge’s range had regard to only one criterion of the comparative severity of a mental disorder, namely the extent of treatment made necessary by the disorder. This precluded the consideration of other relevant criteria, which in this case, included the severity of Ms Katanas’ symptoms and the extent to which the symptoms or consequences inhibited Ms Katanas’ daily activities, family life, social life and educational pursuits.
Implications for you
When deciding whether to grant leave to commence common law proceedings for a ‘serious injury’ under s 93(4) of the TAA, the court is required to assess severity by comparison to the range of comparable cases and must identify and bring to account all of the relevant factors.