‘Serious Injury’ test: TAC v Katanas

Thursday 14 September 2017
Michael Lombard

Co-authored by Shyla Sivanas, Graduate

For the first time in the history of the TAC scheme, the High Court has considered an appeal in relation to the “serious injury” test.

This test is an integral part of the gateway to common law entitlements for transport accident victims. The appeal specifically concerned the serious injury definition of ‘severe long-term mental or severe long-term behavioural disturbance or disorder.’

Background

Ms. Katanas was involved in a transport accident on 10 July 2010 at the intersection of Princes Highway and Springvale Road. Her car was struck on the driver’s side by another vehicle and she was trapped inside her car. She suffered various physical and psychological injuries.

Grounds of Appeal

Ms Katanas applied for leave to commence common law proceedings for a serious injury in the County Court. The County Court rejected the claim because Ms Katanas was on the lower end of a ‘spectrum’ of disorders and treatments. It followed from the original Judge’s reasoning that for a mental disorder to be ‘severe’ it must have the “most extreme symptoms and consequences, requiring extensive treatment and medication.” This was appealed to the Supreme Court of Appeal by Ms Katanas.

The majority of the Supreme Court of Appeal held that the County Court had erred in focusing only on the treatment that Ms Katanas received in deciding whether she had a serious injury. The amount of treatment a person receives is just one factor. The Court should also look at the severity and frequency of symptoms and consequences of the injury as well as inhibitions upon daily activities. This was appealed to the High Court by the TAC.

High Court’s decision

In a decision that was handed down on 17 August 2017, the High Court unanimously held that the Supreme Court of Appeal had decided correctly. The High Court confirmed that the narrative test for ‘severe long-term mental or severe-long term behavioural disturbance or disorder’ involved a two part process:

  1. An assessment of whether the injury and its consequences are serious for the particular applicant.
  2. An assessment of whether the injury and its consequences are serious in the instant case as compared to the range of similar cases.

This assessment should involve all the factors relevant to the claim, not just the amount of treatment that was received by the claimant.

If you would like advice on how this decision impacts your claim, you can call our free Adviceline on (03) 9321 9988 and speak with a lawyer about your circumstances.

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