Dandashli v Dandashli

[1999] NSWCA 321

CITATION:	Dandashli v Dandashli [1999] NSWCA 321
FILE NUMBER(S):	CA 40786/98
HEARING DATE(S):	16 August 1999
JUDGMENT DATE:	9 September 1999
PARTIES :	Osama Dandashli v Haidar Dandashli
JUDGMENT OF:	Mason P at 1; Sheller JA at 28

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

COUNSEL:	C: B Gross QC, T Boyd O: J Poulos QC, W Fitzsimmons
SOLICITORS:	C: Carroll & O'Dea, Sydney O: Abbott Tout, Sydney
CATCHWORDS:	Leave to appeal out of time - No question of principle
ACTS CITED:	District Court Act 1973
DECISION:	Leave to appeal out of time granted

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40786/98
DC 3673/96
MASON P
SHELLER JA

Thursday 9 September 1999



Osmama DANDASHLI v Haidar DANDASHLI

JUDGMENT

1    MASON P: Two applications were heard concurrently: an application for leave to file a notice of appeal out of time; and (alternatively) an application for leave to appeal. 2    The claimant was involved in two motor vehicle accidents. The first occurred on 21 January 1992 when he was a passenger in a car driven by his uncle, the opponent. The second accident occurred on 30 April 1993 when he was driving a vehicle which was struck by another car. 3    The two claims were heard concurrently in the District Court before her Honour Judge Ainslie-Wallace. Liability appears to have been conceded in each case. 4    The claimant sustained physical injuries in each accident, but apparently not of a serious nature. The issue fought in a trial which spanned fourteen hearing days was the claimant’s assertion that he suffered serious psychiatric injuries as a result of the first accident which were aggravated by the second accident. Her Honour was satisfied that the claimant was not, at the date of trial, suffering from any disability which resulted from either motor vehicle accident. Since it was only the psychiatric injury that was said to be continuing at the date of trial in 1998, there were verdicts for the defendant in each action. Allen v Chown (1996) 24 MVR 255 was applied. 5 Reasons were given and orders pronounced on 29 September 1998. 6 On 12 October 1998 the claimant filed and served two holding summonses seeking leave to appeal in each matter. 7 On 11 January 1999 the claimant filed and served:

(a) an ordinary summons for leave to appeal;

(b) a draft notice of appeal;

(c) an affidavit sworn by the claimant’s solicitor, Mr Harrison dated 23 December 1998; and

(d) a summary of argument in the form required by Pt 51 r4B.

These documents were filed within the time limited by Pt 51 r4(3).

8 The documents that were filed related to the two actions. However, the proceedings in this Court concerning the second accident were subsequently discontinued. The Court was informed that the claimant received $15,000, one half of which went towards costs. 9 Despite matters proceeding as if leave were required, the solicitor’s affidavit filed on 11 January 1999 purported to be filed pursuant to Pt 51 r8 (which deals with an appeal filed as of right). It stated that the restriction imposed by s127(2)(c) of the District Court Act 1973 did not apply inter alia because the claim in the appeal, if accepted, would lead to an award of damages in excess of $100,000. There is no reason to doubt this assertion if the whole of the claimant’s disabilities established at trial could be sheeted to the accident involving the opponent. The trial judge held that the causal link was absent, but that is the matter which the claimant wishes to ventilate in this Court. 10    On 26 July 1999 the proceedings referable to the first accident were before the Court of Appeal constituted by Sheller JA and Cole AJA. When it was pointed out that the claimant was asserting that he had an appeal as of right, being an appeal for which no notice of appeal had yet been filed, the proceedings were stood over to 16 August to enable the claimant to file the appropriate documents. 11    Between 10 and 12 August, attempts were made to file a notice of motion seeking leave to appeal out of time. There were problems with the documents, being problems that could have been met without difficulty had the claimant not delayed so long between 26 July 1999 and 10 August 1999. 12    Ultimately, we gave leave to the claimant to file the notice of motion in court returnable forthwith. We also permitted to be read a substantial supporting affidavit sworn on 10 August 1999. The affidavit contained some background and argumentative material. But it mainly annexed various medical reports of Dr Milton, psychiatrist, together with the transcript of Dr Milton’s evidence given at trial. This material was relied upon in an attempt to challenge the learned trial judge’s reasoning which had accepted the opinion and conclusions of Dr Milton, but only in part. 13    The claimant was a back seat passenger in a vehicle being driven by the opponent when it ran off the road and struck a telegraph pole. At the time of impact the claimant was drowsy and not fully awake. Nevertheless, he said in evidence that he remembered hearing a very loud thud and feeling a very heavy bang. He remembered seeing flames, broken glass and blood. His face apparently struck the dashboard of the car. He was in shock with his eyes open for brief periods. His next recollection was when he regained consciousness in hospital. It was his evidence that he had recollections of being trapped in the vehicle and that these caused nightmares, memory loss, almost constant migraine, and deficits to memory and concentration which led to him leaving school. 14    Notwithstanding these disabilities, the claimant, with the financial assistance of his uncle, started a contract cleaning business in November 1992. According to the claimant this was a successful venture which was bringing in about $850 per week before expenses and tax. It was the claimant’s case at trial that the second accident (in April 1993) led to injuries which put an end to the contract cleaning business and the claimant’s capacity to engage in gainful employment. His symptoms stemming directly from that accident were said to include migraine, impaired memory, lack of concentration as well as physical pain to the back and neck. 15    As a result of the two accidents, the claimant said that he had become depressed, even suicidal. 16    The trial judge accepted Dr Milton’s evidence that, at the time of the first accident, the claimant was either in a highly vulnerable state or was already developing schizophrenia, more probably the latter. Dr Milton also expressed the opinion, on the information that he had, that the first accident either worsened or precipitated the illness from which the claimant continued to suffer. The trial judge said she accepted Dr Milton’s evidence, describing him as an impressive witness. Her Honour also appears to have accepted Dr Milton’s evidence that “the Plaintiff, had the condition not emerged when it did, would have been able to continue to work past his mid 30’s”. 17    Despite this, her Honour rejected the claimant’s case that the first accident caused or contributed to disabilities continuing to date of trial. 18    The reasoning proceeds along the following lines:

(a) Dr Milton conceded that he was dependent on the accuracy and truthfulness of the history given to him by the claimant.

(b) Her Honour was in no doubt on the whole of the evidence that the claimant had been an inaccurate historian.

(c) Dr Milton’s view (accepted by the trial judge) was that, in general, if a traumatic event was to cause symptoms then they would be expected to occur within six months of the trauma. No such symptoms manifested themselves prior to February 1994 when Dr Morris was told things by the claimant which led him to believe that the claimant was experiencing a psychotic episode. Nevertheless, Dr Milton considered that the motor vehicle accidents may have contributed to the claimant’s mental illness notwithstanding the lapse of two years between the first accident and the onset of psychotic symptoms. This opinion was based on his assessment of the accident as being extremely traumatic to the claimant. He agreed that it would have to have been perceived by the claimant as such to operate as a causative event.

(d) Dr Milton also agreed with the evidence of Dr Maguire, who had examined the claimant on behalf of the defendant in the second action, who expressed the opinion that current research indicated that where a stressful event played some part in the onset of or relapse of a disorder, that effect takes place within a matter of weeks or, at most, a couple of months of the event.

(e) At pp 18-20 of the judgment, her Honour considered whether the first motor vehicle accident was life threatening and whether it was perceived as such by the claimant. She was satisfied that the accident was a very serious one involving flames coming from the bonnet of the car in which the claimant lay at the front where he had been apparently thrown from the back seat. The car quickly became a blazing inferno.

Her Honour then considered whether or not the claimant was unconscious prior to being dragged from the car. He appeared to be in this state to Mr Westwood who dragged him from the car, although he heard groaning. Ambulance officers scored the claimant as 15 on the Glasgow Coma Scale, which indicated that he was alert and conscious. It also appears that he spoke to the police at the scene, although he could not remember where he was sitting in the vehicle at the time of the accident. Hospital notes made on his admission described the claimant as alert and oriented.
This apparently promising material, so far as the claimant’s case was concerned, was clouded by later histories given to medical practitioners by the claimant to the effect that he was rendered unconscious in the accident, not awakening until he was at the hospital, and that he could not remember the accident at all.
Her Honour observed that it was difficult to reconcile this history with the reports of the ambulance officers and the hospital staff. Nevertheless, she was on balance satisfied that the claimant had no recollection of the accident itself although he had perhaps some recollection of seeing flames at a time when he had been removed from the car. She did not accept that he had a clear and vivid recollection of the accident happening. On the basis of this finding and “ consistent with Dr Milton’s concessions that the traumatic effect of the accident was much diminished if all that the Plaintiff experienced was the sight of flames burning some distance away ”, she could not accept that the accident was a life threatening episode perceived by the claimant.


(f) Despite regular visits to doctors after the accident, the claimant made no mention to any of them of any injury or consequence of the accident until 1994. Indeed, it was his case (relevant to the claim against the defendants involved in the second accident) that he had been able to embark upon a successful business venture before the second accident intervened. Her Honour was satisfied that, after the 1992 accident, the claimant conducted himself in a way which was inconsistent with his suffering physical or psychiatric effects from the accident. In this regard, she relied in part on the absence in the notes of treating doctors that they considered that the claimant’s emotional condition was of concern.

(g) Her Honour accepted Dr Milton’s evidence that it was not unusual for people with mental illness not to complain about their condition because they were unable to “ put their finger on ” that which was troubling them. Nevertheless, she could not accept that a decline in mental condition would not have been noticed or noted by the doctors who saw the claimant so frequently in the years in question.

(h) There were, it was held, no discernible changes in the claimant’s emotional condition reflected in his objective behaviour following the first motor vehicle accident (p 24). In forming this view, her Honour rejected the evidence of an associate of the claimant, Mr Kourounis, whose evidence lacked credibility because of inconsistencies.

(i) Finally, her Honour referred to stressors other than the accident which were factors capable of contributing to emotional illness or the onset of the type of symptoms displayed by the claimant in February 1994. These were the claimant’s disrupted family life; the events surrounding a murder committed by the claimant’s uncle in which, for a time, the claimant was a suspect; the charging and subsequent conviction of the claimant for a serious assault; and amphetamine use in the months prior to February 1994. Dr Milton had agreed that all of these matters could qualify as major psycho-social stressors which could cause an acceleration of schizophrenia in a vulnerable person.

19    The conclusion that the 1992 accident did not have any effect on the course of the claimant’s illness was summarised in the following terms (p 26):

In all of the circumstances I find that the Plaintiff’s condition as 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. That is because:
(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 his illness.

20    Her Honour also rejected the evidence of Dr Morris and Dr Clark who expressed the view that the claimant was suffering from a post traumatic stress disorder referable to the first motor vehicle accident. She did this because the doctors’ evidence was dependent upon the accuracy of the claimant’s history of symptoms. There had been no mention by the claimant of any of the relevant symptoms to any of the doctors consulted by him before 1996. The closest he had come was reference to sleeplessness which was, her Honour held, different to a history of nightmares. Notwithstanding acceptance of Dr Milton’s evidence that the failure of the claimant to mention the symptoms of his developing schizophrenia could be explained by his not being able to articulate his state, her Honour held that she was satisfied that the claimant had had ample opportunity to reveal nightmares and chronic insomnia to the doctors whom he consulted. These were, she held, matters that did not fall within the same category as the matters addressed by Dr Milton. On this basis, she held that none of the objective evidence supported the claim of the symptoms described to Dr Morris. This conclusion was bolstered (p 29) by reference to the bulk of medical opinion to the effect that the subjective appreciation of the life threatening nature of the accident was essential to cause post traumatic stress disorder. Her Honour repeated her conclusion that she was satisfied on the whole of the evidence that the claimant had no recollection of the accident occurring. 21    Late in the judgment (pp 34-5), her Honour considered the question of the claimant’s credit. The defendants at trial had submitted that the claimant was lying when he gave his evidence. Her Honour rejected this submission, basing her conclusion upon the opportunity which she had of observing the claimant during the course of his evidence over three days. She was not of the view that the claimant 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. She concluded that it was more probable than not that the claimant’s evidence and his reconstruction of history through documents was a factor of his psychiatric evidence and not a deliberate attempt to lie for financial gain. 22    I readily accept the opponent’s submission that considerable barriers lie ahead of the claimant in his attempt to challenge the carefully reasoned judgment of a trial judge who addressed the difficult but not atypical task of evaluating the probable causal impact of an obvious trauma upon a plaintiff whose pre-existent (psychiatric) state was fragile and naturally prone to deterioration over time. Nevertheless, I do not think that the claimant’s case is hopeless or unarguable. While I shall give some brief reasons for this opinion, I would not wish them to be interpreted by the claimant or his legal advisers as a ringing endorsement of his prospects on appeal. Nevertheless, the matters which move me to this conclusion are as follows:

(1) The claimant was not found to have lied in his evidence.

(2) Dr Milton’s opinion, which was accepted, was that in certain events the accident could have contributed to the delayed symptoms that first manifested themselves in February 1994.

(3) The observations of the ambulance officers and police who attended the accident, and of the hospital staff who first admitted the claimant, support the critical contention that the claimant was conscious immediately after the accident when he was dragged from the car which became a blazing inferno. Her Honour found to the contrary, but upon the basis of the claimant’s poor record as a medical historian. However, this was scarcely a knockout blow coming from a person whose capacity to give an accurate medical history had been used to attack his case in other parts of the judgment.

(4) The same argument can be advanced in relation to the way her Honour dealt with Dr Milton’s opinion as to the causal link between the accident and the deterioration in the claimant’s psychiatric condition.

23    I wish to reiterate that these views are based upon less than a full consideration of the evidence. For obvious reasons, that task should be essayed by others in the event that the appeal proceeds to a hearing. 24    It is important to observe that the application which is pressed is an application to grant leave to bring an appeal as of right out of time. Were the Court considering the alternative application for leave to appeal, then different principles would apply. But in the context of an application to extend time, the guiding principle is the avoidance of injustice (see Gallo v Dawson (1990) ALJR 458 at 459; Moulieux Pty Ltd v Girvan NSW Pty Ltd (Receiver and Manager Appointed) (21 September 1991, Court of Appeal, unreported, per Kirby P); Danny Kidron & Andrew Spaile Architects Pty Ltd v Garrett (1994) 35 NSWLR 572; and Halliday v High Performance Personnel Pty Ltd (in liq) (1993) 113 ALR 637 at 638). 25 It is also relevant to observe that the claimant evinced his intention to invoke the appellate jurisdiction of the Court by attaching a draft notice of appeal and an affidavit in accordance with r8 (incongruously) to process seeking leave to appeal. Had the claimant filed a holding notice of appeal at this time, as distinct from a holding summons for leave, he would not have been out of time. 26 I cannot conclude that the appeal which the claimant seeks to bring has no prospect of success. Non-compliance with the Rules has been technical. No prejudice is asserted by the opponent. I would grant the application. 27 As to costs, I would make them the respondent’s costs in the appeal. The opponent did not act unreasonably in opposing the application but the parties were brought back a second time to this Court in consequence of the claimant’s need to get his paperwork in order. 28 SHELLER JA: I agree with Mason P.

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