Dandashli v Dandashli

[2000] NSWCA 273

Reported Decision: [2000] 32 MVR 417

New South Wales

Court of Appeal

CITATION:	Dandashli v Dandashli [2000] NSWCA 273
FILE NUMBER(S):	CA 40786/98
HEARING DATE(S):	4 & 5 July 2000
JUDGMENT DATE:	23 October 2000
PARTIES :	Sam Dandashli - Appellant Haidar Dandashli - Respondent
JUDGMENT OF:	Priestley JA at 1; Giles JA at 7; Foster AJA at 8

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	3673/96
LOWER COURT JUDICIAL OFFICER :	Ainslie-Wallace DCJ

COUNSEL:	B J Gross QC & T J Boyd - Appellant J Poulos QC & W M Fitzsimmons
SOLICITORS:	Carroll & O'Dea - Appellant Abbott Tout - Respondent
CATCHWORDS:	NEGLIGENCE - motor vehicle accident - allegation of major psychiatric damage - that schizophrenia caused by accident - that schizophrenia accelerated or exacerbated by accident - post traumatic stress disorder caused by accident - trial judge held schizophrenia pre-existing and underwent natural development materially unaffected by accident - held also trauma of accident experienced insufficient to produce psychiatric disorder - decision on facts and assessment of witnesses - no error shown. ND.
DECISION:	Leave given to the appellant to amend notice of appeal to form of further amended notice of appeal provided at the hearing of the appeal. The further amended notice of appeal to be filed within seven days. Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40786/98
DC 3673/96

PRIESTLEY JA
GILES JA
FOSTER AJA

Monday 23 October 2000

SAM DANDASHLI v HAIDAR DANDASHLI

JUDGMENT

1    PRIESTLEY JA: This appeal will be dismissed, for the reasons given by Foster AJA, with which I agree.

2    To a lay reader, there are two aspects of this case which may cause surprise at the result.

3 The first is that the appellant/plaintiff was undoubtedly injured as the result of the negligence of the respondent/defendant, yet he was awarded no damages. This result was compelled, once the trial judge made her findings of fact, by s 79 of the Motor Accidents Act 1988 in the form in which it applied to accidents which happened in 1992, as the accident in this case did. The section was designed to reduce damages which might be awarded at common law. It required the court, in respect of the accidents to which it applied, to be satisfied that by reason of the accident the plaintiff’s capacity to lead a normal life was significantly impaired at the time of the trial.

4    In the present case, the trial judge upon her factual findings was not satisfied of that significant impairment. That meant that no damages could be awarded.

5    The other matter which I think would strike a lay observer as surprising, is the finding that the accident in question, the first of two accidents in which the plaintiff was injured, had no greater effect on the plaintiff’s developing psychiatric condition than it was found to have. Persons not expert in psychiatry might well think that the dramatic and dangerous circumstances of the first accident would have left impressions on the plaintiff’s brain, even though the force of the accident led to very little memory of them later, which were likely to have affected his mental state.

6    In this respect however, the trial judge was bound to come to her conclusions upon the basis of the factual and expert opinion evidence that was before her. Foster AJA shows in his reasons, in my opinion, that there was no appellable error in the way her Honour arrived at her conclusions upon the evidence, much of it conflicting, within the bounds of which she had to decide the case.

7    GILES JA: I agree with Foster AJA.

8    FOSTER AJA: This is an appeal from a decision of Ainslie-Wallace DCJ given in the District Court of New South Wales on 29 September 1998. Her Honour heard together two separate actions based upon separate motor vehicle accidents. The first accident occurred on 21 January 1992 and the second on 30 April 1993. In the first accident the appellant was a passenger in a car driven by his uncle, the respondent. In the second accident the appellant was the driver of a motor van which collided with a vehicle driven by Jane Maree Minty. Her Honour found a verdict in favour of each defendant on the basis that, although each was negligent in the control of their respective motor vehicles, the appellant was not suffering from any compensible disability resulting from the accident. The appellant appealed against both decisions. The appeal in respect of the later accident has been settled. The appeal in respect of the first accident has proceeded, the appellant contending that her Honour should have found that, as a result of the accident, he has suffered significant psychiatric damage.

9    The trial occupied fourteen hearing days. A large amount of medical evidence was tendered by way of reports from treating doctors and other doctors qualified to give evidence in the case. The clinical notes, often cryptic and indecipherable, of a large number of general practitioners were also tendered, without the benefit of explanation by their authors. Police records of interview and associated documents were also put in evidence. Three psychiatrists gave evidence and were extensively cross-examined, as were the appellant and other lay witnesses. Her Honour was, accordingly, confronted with a very large body of evidentiary material and was required to make difficult findings of fact, particularly in the area of psychiatric testimony, oral and written.

10    It was the appellant's case that, as a result of the accident of January 1992, he had suffered severe and on-going psychiatric impairment. He had been a passenger in a vehicle driven by the respondent when it collided with a telegraph pole, the impact being heavy, and resulting in the vehicle catching fire. He had been seated in the back seat and was, on impact, propelled to the front of the vehicle between the driver and a front seat passenger. He had received physical injuries including a fractured wrist and damaged nose. He claimed, however, that the accident had either precipitated or aggravated a condition of schizophrenia with which he was afflicted at the time of trial. Additionally, he contended that he suffered from the condition of post traumatic stress disorder (PTSD) and depression as a result of the accident. These conditions were said to have been aggravated by the second accident, a question which received little or no attention on appeal.

11    It was accepted by her Honour and not disputed in the appeal that the appellant, indeed, suffers from schizophrenia or some personality disorder with schizoid features. This condition was developing prior to the 1992 accident. The psychiatrists were in substantial agreement that events in the appellant's life had predisposed him to the condition and were also indicative of its early development. He had been born on 28 June 1975, his mother having immigrated from Syria whilst she was pregnant with him. His natural father did not immigrate. His mother returned to Syria for about a year leaving him behind in Sydney. She returned with a new husband. The appellant did not get on with his step father and, at the age of thirteen left the family home and went to live with his uncle, the respondent. Although his earlier school reports were encouraging, his performance diminished noticeably with adolescence, his attitude to school becoming apathetic. He left school early and took employment at a real estate agency where the respondent was sales manager. In 1991 there were episodes of violence culminating with his being charged in December 1991 with a serious assault, in which he attacked, in a state of "road rage", another driver. He used an iron bar as a weapon. This assault involved him in being charged before a Children's Court.

12    He was first diagnosed as having significant psychiatric problems in 1994. By 1996 diagnoses of schizophrenia and PTSD had been made. The schizophrenic condition was allegedly related to the 1992 accident only by way of suggested acceleration or exacerbation. The PTSD was said to be directly related to the shock of the accident. Both these propositions were the subject of vigorous dispute on behalf of the respondent.

13    The trial judge's decision

Her Honour, in a careful and detailed judgment, made a number of findings of fact, which resulted in her dismissing the appellant's claims. This was a case in which, undoubtedly, she enjoyed the marked advantage of observing the witnesses in the giving of their evidence. She had the particularly difficult task of evaluating the evidence of the appellant, having regard to his schizophrenic condition. In certain important respects his evidence was shown to be untruthful. This involved the question whether his lack of veracity was attributable to his psychosis or whether it was quite deliberate and motivated by a desire for gain. Furthermore, whether or not the appellant was being purposefully untruthful, there was necessarily a question as to whether his evidence on significant matters could be accepted. The reliability of his testimony not only posed difficult questions for her Honour in accepting or rejecting his account of significant events, but also in relation to the significance to be attributed to the opinions of psychiatrists, where they had been founded upon incorrect factual statements made to them by the appellant or were affected by failure, on the part of the appellant, to disclose significant events.

14    The main areas of dispute were (a) the degree of emotional trauma suffered by the appellant in the accident and (b) the significance of events, particularly in 1992, other than the accident, which could have had traumatic emotional effect upon the appellant. The extent to which the appellant's history of the accident was accurate was an important question in the case, as was the existence of other "stressors" which could have played a significant role in producing psychiatric disturbance. These other traumatic events had largely not been disclosed by the appellant in psychiatric examinations. There was an issue as to whether this failure was deliberate or a product of his schizophrenia.

15    Her Honour set out the matters relating to the appellant's disturbed home life and deterioration in his school performance at the commencement of her reasons. She treated these as undisputed facts. In particular, she noted that the school reports of 1989 and 1990 remarked upon a "lack of concentration and interest" and that the appellant was "apathetic". He had left school at year 11, after an argument with one of his teachers over which maths course he should do. He had not attended school for the rest of the year and spent part of it working with his uncle at the real estate agency. She also noted the instances of violence referred to above.

16    Her Honour also noted that the appellant had frequently attended doctors for a variety of minor illnesses from 1990, having seen the doctors at the local family medical centre on at least seventeen occasions between the months of May and July of that year. Two of the doctors that he saw with some regularity were Dr Hanna and Dr Verma. He continued seeing these practitioners up to late 1996. They did not give oral evidence but their records did not indicate any complaint relating to the 1992 or 1993 motor vehicle accidents until 4 January 1996, when he told Dr Hanna of the 1992 accident and on 9 January 1996 when he mentioned the 1993 accident. Her Honour found that, "with one exception…the appellant made no complaint of any emotional or psychological problem at all…nor attributed such a problem to either motor vehicle accident until January 1996".

17    Her Honour received evidence that on 16 April 1992, when the plaintiff was living with the respondent, the respondent's business partner was found murdered in the flat that they occupied. During the ensuing lengthy police investigation the appellant believed he was a suspect. He was not, however, charged although he was interviewed both orally and by way of electronic recording. In November 1992 the respondent was arrested and charged with the murder. The appellant arranged for his legal representation and also for his release on bail after he had been in custody for some time. There were two trials of the respondent, one in August 1994 and the other in February 1996. The appellant gave evidence in each trial.

18    Her Honour related the appellant's evidence as to the facts of the accident. He said he was drowsy and not fully awake when it happened. He heard a very loud thud, felt a very heavy bang and remembers seeing flames, broken glass and blood. He was in a state of shock, his next recollection being that of regaining consciousness in hospital with extreme pain in his neck, spine and head. He stated his belief that he was unconscious for about twenty-four hours. Since the accident he had been troubled by nightmares about it and suffered from almost constant migraine headaches. His memory was poor as was his concentration. This affected his school work when he returned after the accident, resulting in his leaving school in the middle of 1992. He attempted various types of employment but had difficulties coping because of physical pain and lack of concentration. In November 1992 he started a contract cleaning business which was successful but which came to an end after the accident of 30 April 1993 when the van used in the business was destroyed.

19    At the time of trial, the appellant's disabilities, as described by him, consisted of severe migraine headaches in the front of his head, lack of concentration, and impaired memory. He experienced nightmares about the 1992 accident. Reading provoked images of blood and broken glass. He had constant pain in various parts of his body for which he had sought assistance from physiotherapists and chiropractors. As a result of the accidents he said he had become depressed and suicidal. The effect of the accidents had been catastrophic. They had destroyed his life. He had been "shot through the soul".

20    Her Honour had the task of evaluating this evidence in the light of facts objectively proved in the case and with such assistance as could be properly be obtained from the medical evidence. She considered the evidence under a number of headings.

21    Under the heading "The Plaintiff's Psychiatric Condition", she reviewed much of the medical evidence. She noted that the "bulk of the medical evidence presented in the case both for the plaintiff and the defendants was that the plaintiff suffers from schizophrenia." As she noted, not all the psychiatrists who had examined the plaintiff were of this opinion. For instance, Dr Morris, the psychiatrist who had treated the plaintiff after he was referred to him by Dr Verma in January 1994 and had examined him on a number of occasions thereafter, ultimately expressed the opinion that he was suffering from a chronic post-traumatic stress disorder relating to the 1992 accident together with a dysthymic disorder and a schizotypal personality disorder. These latter two disorders had not been caused by the accident although the dysthymia could have been exacerbated by the PTSD. Dr Morris had diagnosed a psychosis in 1994 but had found no indication of it in 1996 when the appellant had been referred to him again, this time by Dr Hanna. It was on this occasion in 1996 that the appellant provided information to Dr Morris of customary PTSD symptoms, including nightmares, flashbacks, and intrusive disturbing thoughts relating to the terrifying aspects of the accident.

22    Her Honour also referred to the notes of another psychiatrist to whom the plaintiff had been referred by another medical centre, in 1995, when he had complained of feeling depressed and suicidal. That psychiatrist's diagnosis was that the plaintiff was suffering from major depression and psychosis.

23    It is clear that her Honour had regard to a great deal more psychiatric material in the case, without finding it necessary to set it out in her judgment. She found that it was "more probable than not that the plaintiff is suffering from schizophrenia". She found also "that the condition commenced when the plaintiff was about sixteen years and that once there had been an onset of that condition there was no prospect that the plaintiff would not have, in due course, developed the illness with the prognosis described by Dr Milton, who gave evidence for the plaintiff." Dr Milton was not a treating psychiatrist but had been qualified to give evidence in the appellant's case.

24    Her Honour accepted that the schizophrenia was not caused by the motor vehicle accident.

25    Her Honour then considered the question whether there had been acceleration or exacerbation or precipitation of the schizophrenia by reason of the motor vehicle accident.

26    Under this heading her Honour discussed the evidence of Dr Milton, whom she described as an impressive witness. She also said "I accept Dr Milton's evidence." This statement achieved prominence in the arguing of the appeal. However, it is quite clear that her Honour's acceptance was not an unqualified one. As her discussion of his evidence indicates, his opinion depended "on the information that he had" and upon "the accuracy and truthfulness of the history given to him by the plaintiff". Subject to these important considerations, she recorded the doctor's opinion that "the accident either worsened or precipitated the illness from which the plaintiff continues to suffer." She accepted the doctor's opinion that the appellant was already developing schizophrenia at the time of the accident. This was apparent from his decline in his school performance and the reasons given for it, together with the increasing frequency of his visits to the general practitioners before 1992.

27    Her Honour next considered "the onset of the illness and when it commenced". She considered the importance of a temporal link between the particular stressor relied upon and the emergence of symptoms. She recorded Dr Milton's view that, in general, symptoms would be expected to occur within six months of the relevant trauma. This opinion was consistent with other opinions expressed in the case. Dr Milton was, however, of the view that the passage of two years between the 1992 accident and the first complaints of psychotic symptoms did not necessarily mean that those symptoms were not connected with the accident. Because of the nature of the condition, sufferers found it difficult to articulate their symptoms to the medical profession. They frequently sought help in relation to other conditions whilst, at the same time, not revealing to doctors their "underlying disquiet about themselves and their mental processes." However, the more extended temporal link would require that the accident be extremely traumatic and be perceived to be such by the victim.

28    This latter consideration was of major importance in the case. Her Honour considered it under the heading "Whether the first accident was life-threatening and whether it was perceived to be so by the plaintiff." Her Honour reviewed the evidence bearing upon the serious nature of the accident. She observed that there was no dispute that the accident was very serious and that, after the appellant and the other occupants, had been removed from the damaged vehicle it became "a blazing inferno". This was not disputed. However, there was a major dispute as to whether the appellant "was conscious of what happened, or any part of what happened such that it could have prompted the development of the psychotic symptoms and the Post Traumatic Stress Disorder."

29    Her Honour had already noted that the appellant was "an inaccurate historian" and that it was, in fact, submitted on behalf of the respondent that he had deliberately lied to bolster his claim for damages. She undertook an examination of the various accounts given by the appellant as to his knowledge of and recollection of the facts of the accident. There was considerable conflict in this area. She found that the appellant had no recollection of the accident itself and had, perhaps, some recollection of seeing flames at a time when he had been removed from the car. He had no "clear and vivid recollection of the accident happening." In these circumstances she did not accept that the appellant had perceived the accident as a "life-threatening episode."

30    Consideration was then given to the appellant's behaviour after the accident. It was noted that, as already referred to, he made no mention to doctors before January 1996 of any symptoms involving the accident. Moreover, there was considerable evidence in the case that he had gone about his daily life in a manner which was inconsistent with his suffering any psychiatric consequences of the accident. He had conducted himself in a disciplined and normal way during the investigation into the murder. He appeared to have led a normal life consistent with his age and socio-economic circumstances. Despite his numerous visits to doctors, it was clear that they had made no observation of any significant deterioration in his mental or emotional state. She took into account and accepted as a proposition, however, that people with schizophrenia would have difficulty in making clear complaints about their psychotic condition to doctors. However, the evidence indicated that, in so far as the appellant was suffering from this disability after the accident, there was no real difference from the situation that had obtained before the accident.

31    She considered the effect of other stressors in the appellant's life, to which reference has already been made. In addition he had undergone Court proceedings in 1992 in respect of the assault charges, of which he was convicted. She noted that before the appellant had seen Dr Morris for the first time in February 1994 he had, by his own admission, "frequently used speed and marijuana" which were recognised precipitators of psychosis. Dr Milton had indicated that these stressors could cause an acceleration of schizophrenia.

32    Taking these matters into consideration, her Honour came to the conclusion that the psychotic condition observed by Dr Morris in 1994 was "part of a continuum of his illness which commenced before 1990 and which was not materially affected by the motor vehicle accident of 1992." She summarised her reasons for this essential finding, as follows:-

"(a) there was no objective change to the Plaintiff's behaviour as observed by his doctors consistent with an exacerbation;
(b) the temporal nexus between the motor vehicle accident and the emergence of the psychosis is remote;
(c) the effect of the motor vehicle accident as experienced by the plaintiff was not as serious as he later led doctors to believe and, in fact, was limited to his seeing flames after being rescued from the car;
(d) the existence of a number of powerful stressors which occurred before and after the time of the motor vehicle accident all or any of which could have had the effect of exacerbating the progress of the illness."

33    Her Honour then turned her attention to the alternative claim for PTSD.

34    This diagnosis depended upon the evidence of Doctors Morris and Clark, psychiatrists called on behalf of the appellant. The diagnosis, in each case, depended upon the acceptance by the doctors of the appellant's account of the terrifying and traumatic aspects of the accident. The appellant had given no such description to any doctor prior to January 1996. Her Honour had found that his actual experience of the accident had been relatively minor. It was not a perceived life-threatening experience. Even if a failure to make complaint to doctors in respect of psychotic symptoms could be explicable on the basis of the schizophrenic condition itself, this could not apply to a failure to report basic, easily described, symptoms such as vivid and intrusive recollections and nightmares involving broken glass, blood and fire, as horrific aspects of the experienced effects of the accident. The degree of trauma actually undergone by the appellant was insufficient to produce the psychiatric disorder.

35    Her Honour, consequently, did not accept the claim for PTSD.

36    Her Honour also considered the appellant's credit. This was in the context that it had been strongly submitted, on behalf of both defendants in the case, that the appellant had deliberately lied in order to establish a case of psychiatric harm resulting from the accident. This assertion was, to a large extent, based upon the fact that the appellant had made no complaint of PTSD related symptoms until, in early 1996, he, apparently, became aware of the existence of that psychiatric category and of its potential for providing a basis for a claim for damages. Armed with this knowledge he had, for the first time, four years after the event, complained of PTSD type symptoms to Dr Hanna and thereafter to Dr Morris to whom he had been referred previously, in 1994. At that time he had made no such complaint to the doctor, who, it seems, was somewhat puzzled by the absence of psychotic symptoms in 1996 and the substitution for them of classical PTSD symptoms. This pointed, in the submission of the defendant, to a conclusion that the appellant had concocted the claim for PTSD. Moreover, it was established in the case that the appellant had fabricated documents to assist him in his claim for loss of earnings. Furthermore, it was acknowledged by Dr Milton and Mr Morris that it was possible for a schizophrenic to deliberately fabricate evidence for the purpose of gain.

37    It was submitted, however, on behalf of the appellant that, because of his psychiatric condition, he was simply presenting a history in the way that he perceived it to be. Her Honour accepted this submission. She said:-

"I had the opportunity of observing the Plaintiff during the course of giving his evidence for some three days. I was not of the view that he was lying but rather presenting a version of events which he believed to be true notwithstanding that the objective evidence simply did not support him. It is more probable than not that the Plaintiff's evidence and his reconstruction of history through documents was a factor of his psychiatric illness and not a deliberate attempt to lie for financial gain."

38    This finding of her Honour is the subject of a notice of contention from the respondent, it being asserted that her Honour's assessment of the appellant's credit was far too kindly and that the evidence could point only to his having engaged in conscious and deliberate fabrication of his case for damages.

39    The appeal

To a very large extent the appellant sought to reargue before the Court questions of fact, upon which he had failed before her Honour.

40    It was submitted that her Honour should have found that the appellant had a far more extensive appreciation of the facts of the accident at the time of their occurrence than were expressed in the finding to which reference has been made. In my view this submission cannot succeed. The indications from ambulance and hospital records, while not easy to interpret, on balance supported that the appellant had relevantly been or professed to have been unconscious in the aftermath of the accident. The various versions given by the appellant of his degree of awareness of the events of the accident shortly after its occurrence, when coupled with objective evidence from a witness, who had in fact dragged him from the vehicle, that he then appeared to be unconscious, renders the finding that was made, in my view, a fairly generous one. There is no basis for overturning it.

41    A related submission was made that the psychiatric category of PTSD does not require, as a basic condition of its occurrence, that the victim should have experienced at first hand the traumatic incidents which later led to the symptoms of the disorder. It was submitted that the disorder could occur in circumstances where the accident victim later came to know of the details of the accident, even though he did not experience them at the time, and had no recollection of them. In my view neither the DSM4 definition of the condition, nor the alternative WHO definition, both of which were in evidence, support this contention. Nor, so far as I can see, in the voluminous medical evidence in the case, is there anything to support such a view of the aetiology of the condition. That is understandable enough when the appellant’s case below was that he had experienced the traumatic incidents first hand, at the time of the accident. Indeed, I doubt that it was open to him to make this submission. In any event, I am satisfied that this ground of appeal is not made out.

42    It was also submitted that her Honour had erred in finding that, with the one exception, there had been no communication by the appellant to the doctors, whom he saw so frequently after 1992, of any symptoms relating to PTSD in conjunction with reference to the accident. The one exception was clearly enough a note of a consultation with Dr Morris in March 1994, “since major motor vehicle accident increased symptoms”. This note remained unexplained, and might well have related to the second accident It was said that, amongst the plethora of clinical notes from various general practitioners, consulted by the appellant between 1992 and 1996, there were references to emotional symptoms of one kind or another. Allowing this to be so, no error is demonstrated. There is no indication of any complaint relating to the facts of the accident. Mere complaints of anxiety or sleeplessness without their being tied to emotional recollection of the trauma of the accident, cannot qualify for a reporting of symptoms of PTSD. This ground is not made out.

43    An allied ground is the complaint that her Honour erred in attributing far too much significance to the absence of relevant complaint between 1992 and 1996. Reliance was placed upon the evidence of Dr Milton, accepted by her Honour, to the effect that schizophrenics have both difficulty and reluctance in reporting the symptoms of their psychosis. Her Honour expressly dealt with this matter in her judgment. She accepted that, so far as any psychotic symptoms were concerned, the absence of complaint in the relevant period was not necessarily indicative that the psychosis was not present. However, she did not accept this approach in relation to the symptoms of PTSD. She did not accept that there would be any corresponding difficulty in reporting to doctors the well-known experiences of flash backs, inclusive recollections and reliving of the trauma in the form of nightmares. In my view, her Honour was fully justified in taking this approach. And so far as her Honour accepted the possible difficulty in relation to the symptoms of schizophrenia, she was entitled in the light of the other matters summarised as her reasons for finding that the pre-existing schizophrenia was not materially affected by the 1992 accident to conclude that, notwithstanding that possibility, absence of relevant complaint was of assistance in coming to her finding. No error has been demonstrated. This ground of appeal fails.

44    As I have indicated, the appellant’s arguments on appeal largely re-agitated questions of fact found against him. Directly or indirectly her Honour’s findings depended on the credibility she thought could be attributed to the appellant, as to his evidence of his perception of the accident and as to the evidence of what he told the doctors. Relevant to the appellant’s credibility was the considerable evidence of the appellant’s behaviour after the accident in going about his daily life, inconsistent with any psychiatric consequences of the accident. Unless her Honour’s view of the appellant’s credibility can be put aside under the principles relevant to findings of fact based in whole or in part on demeanour, the findings of fact dependent on it can not be overturned. We were taken to the evidence in some detail. Having read the evidence in the case, and having considered her Honour's judgment, I am satisfied that she was amply justified in finding against the appellant. Indeed, there is much to be said for the arguments raised under the notice of contention. However, in the circumstances, I find it unnecessary to reach a decision on those matters.

45    Leave should be given to the appellant to amend his notice of appeal to the form of the further amended notice of appeal provided at the hearing of the appeal. The further amended notice of appeal should be filed within seven days. The appeal should be dismissed with costs.

__________