Daralievski v Coziol & Ors
[2000] VSCA 21
•15 February 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 6768 of 1998
| TINA DARALIEVSKI | |
| Appellant | |
| v | |
| MICHAEL COZIOL | |
| - and – ZORAN VLAJNIC - and – MARIO DISCOLA -and – TRANSPORT ACCIDENT COMMISSION | Firstnamed Respondent Secondnamed Respondent Thirdnamed Respondent Fourthnamed Respondent |
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JUDGES: | WINNEKE, P., BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 February 2000 | |
DATE OF JUDGMENT: | 15 February 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 21 | |
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Personal injuries – Whether injury serious within meaning of s.93(17)(c) of Transport Accident Act 1986 – Appeal from judge’s refusal to grant leave upheld.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | J.V. Kaufman Q.C. and | Carew Counsel Pty. |
| For the Respondents | R.H. Gillies Q.C. and P.H. Soloman | TAC Law Pty. Ltd. |
WINNEKE, P.:
I will invite Buchanan, J.A. to deliver the first judgment in this appeal.
BUCHANAN, J.A.:
On 25 April, 1990, the appellant, a woman then aged 22 years, was the front seat passenger in a taxi which collided with two other vehicles. In the course of the accident the appellant struck her head on the windscreen and dashboard of the taxi. She was taken by ambulance to hospital and was discharged the same day.
The immediate effects of the accident were slight. The applicant suffered a bump on the head and pain in her neck, jaw and left shoulder, but she continued working as a law clerk in a firm of solicitors and the bruising cleared in a matter of weeks.
In February 1991, the applicant was dismissed from her employment. She obtained work in another firm where she used a keyboard more frequently. She said that she experienced fatigue, pain and cramp in her left arm, neck and back. In mid-1992, she felt occasional pain, spasms and heat in her face and developed a clicking in her right lower jaw. By mid-1993, she noticed that her face was becoming asymmetrical, that is, one side of the face was becoming larger than the other.
In September 1994, the applicant consulted a general practitioner about the asymmetry of her face and the pain which she experienced. She was referred to Professor Goss, an oral surgeon, who diagnosed a left hemi-facial hypertrophy involving the mandible. The left side of the applicant's face was larger than the right, with a resulting distortion of her face towards the right. Professor Goss also diagnosed musculoskeletal dysfunction of the head and jaw muscles resulting in headaches, earaches and jaw pain, painful jaw clicking and difficulty in eating and talking.
Surgery was performed on the applicant on 19 August, 1997, involving cutting and repositioning of the maxilla and mandible.
At about the time of the onset of the asymmetry of her face, the applicant appeared to be suffering mental and emotional difficulties which led to her consulting a psychiatrist, Dr Goel, in July 1995. Dr Goel diagnosed the applicant as suffering a major depressive disorder of a moderate to severe degree. In March 1996, Dr Goel admitted the applicant to the Adelaide Clinic because of what she thought was a high risk of suicide associated with her major depressive illness. In August 1997, the applicant was again admitted to the Adelaide Clinic and was treated with electroconvulsive therapy.
The applicant applied to the County Court pursuant to the provisions of the Transport Accident Act 1986 ("the Act") for leave to bring proceedings for the recovery of damages in respect of the injuries sustained in the accident on 25 April 1990. Section 93(6) of the Act provides that a Court must not give leave under sub-s.4(d) "unless it is satisfied that the injury is a serious injury".
The term "serious injury" is defined in sub-s.17 as follows:
"'Serious injury' means -
(a)serious long-term impairment or loss of a bodily function, or
(b)permanent serious disfigurement, or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder, or
(d)loss of a foetus."
The applicant relied on each paragraph of the definition save the last.
The medical evidence before the court consisted of reports by doctors and specialists exhibited to affidavits. No oral evidence was adduced save from the applicant and a partner of the firm of solicitors that employed her at the time of the accident.
The trial judge refused the application. His Honour held that it was not appropriate to consider the injury in terms of impairment or loss of a body function, thereby ruling out paragraph (a). As to paragraph (b), his Honour held that even if the disfigurement was serious, it was not permanent, for the operation had removed it. Finally, his Honour held that paragraph (c) did not apply. The trial judge appeared to accept that there was a causal link between the asymmetry of the applicant's face and the depression from which she suffered. He said:
"Acknowledge that the causative links between the two act at least in the form of whatever pain she was having and whatever asymmetry there was and distress arising from that contributed to the long-term behavioural disturbance or disorder as referred to in the psychiatric reports.
... can it be truly said that the court is satisfied that inasmuch as there was a disfigurement, the perception of which contributed to the depressive illness, which has been diagnosed an anxiety state, was that a result of the motor car accident about which I must say, I have very considerable doubts indeed."
His Honour decided that the depressive illness was not caused by the transport accident. He said:
"I must say that I could not find, as a fact, that the asymmetry that she suffered from did arise from the motor car accident. If that is the case then what effect does that have on the question of serious injury in the form of long-term behavioural disturbance? The way in which I have decided to answer that question is to refer to what I read from Dr Scanlon's opinion, because I am of the view that his opinion is correct, and say that whatever was the cause of the facial asymmetry, the depressive illness and anxiety state from which she suffers, I cannot find to be a result of the transport accident."
This passage is not altogether easy to understand. Was his Honour holding that the asymmetry was not a result of the accident or was he holding that the depressive illness was not caused by the asymmetry of the applicant's face? In the passages I have earlier quoted his Honour appears to have accepted that the asymmetry was causally connected to the depression suffered by the applicant. Yet Dr Scanlon's report, on which the trial judge said he relied, did not touch upon the question of whether the asymmetry caused any psychiatric illness. Rather, Dr Scanlon appears to have proceeded on the basis that the applicant suffered only the minor injuries observed when she was admitted to hospital on the day of the accident. Dr Scanlon noted the applicant's report of asymmetry but it does not appear that he paid any attention to it. He did not in terms consider the possibility that the asymmetry was causally related to the accident. In any event, he does not appear to have been qualified to have expressed an opinion upon that question.
Doing the best I can, I think that his Honour held that there was no causal link between the accident and the asymmetry. In this I am of the opinion that he erred.
The only cause of the asymmetry that anyone advanced was the 1990 accident. Professor Goss said:
"The precise cause of hemifacial hypertrophy is not known. There is however a body of opinion that minor trauma can stimulate excessive growth of the facial bones, particularly the mandible. This lady clearly has had a trauma to her jaws in the accident significant enough to cause facial bruising, musculoligamentous injury, and direct damage to the tongue. The magnitude of the force was insufficient to fracture the facial bones. It is this range of trauma which has been widely thought to stimulate excessive bone growth. In my opinion Ms Daralievski meets the criteria of trauma being the most likely cause of her mandibular hemihypertrophy. It is well demonstrated that deceleration trauma, as suffered by this lady, does cause musculoligamentous damage to the head, face and masticatory muscles. This usually results in relatively minor symptoms initially but these progressively increase with time. This pattern of development of symptoms is clearly seen for this patient. There is clear evidence that the timing of the facial deformity does correlate with the timing of the injury."
Presumably that view was rejected by the trial judge. Yet he stated no reason for doing so. Mr Sambrook, a maxillofacial surgeon engaged by the respondent, who, unlike Dr Scanlon, was qualified to express an opinion on the point, said:
"I perused photographs of Miss Daralievski by Miss Daralievski taken of her prior to the accident, and at stages following the accident. There is no evidence of this facial asymmetry existing prior to 1990. There is evidence of a slowly progressive asymmetry developing after the accident. The asymmetry of any condylar hyperplasia takes years to develop and years to become obvious. It can not be categorically stated that the accident caused the asymmetry and likewise it can not be categorically stated that it did not. Having established some basis of the facial asymmetry I will now comment on the other aspects of your letter."
In my view Mr Sambrook's report provides support for Professor Goss's opinion. He could not be categoric about the cause, but the question was one of probabilities, not certainties, and Mr Sambrook in speaking of the existence of a basis for the asymmetry could only have been speaking of the accident.
Counsel for the respondents sought to justify the rejection of Professor Goss's opinion by undertaking a minute comparison of the history recounted by Professor Goss and the hospital and ambulance records. I do not regard that as at all convincing. The hospital could not be expected to be too concerned about what Professor Goss described as minor trauma. Professor Goss presumably relied on the applicant as his source of information. Whether the information from the applicant was accurate is yet to be tested. When she gave evidence before the trial judge, no question on this matter was put to the applicant. In my view the trial judge erred in rejecting the evidence of Professor Goss and Mr Sambrook. There was no evidentiary basis for doing so.
It also appears that his Honour was of the opinion that the applicant was not suffering from a serious depressive illness. Notwithstanding the substantial body of medical opinion that she was suffering such an illness, and had undergone extensive treatment based on that diagnosis, his Honour judged the matter on the basis of his observations of the applicant in the witness box. He said:
"I believe that she did show signs of being a severely upset and disturbed young woman but I believe also that a major part of her demeanour and behaviour in the witness box was affected by histrionics and drama acted out by her which I would find very, very difficult to accept as being a true reflection of her underlying mental functioning and behavioural pattern. I believe that she was being manipulative in endeavouring to vilify her counsel, I believe that she was playing a role which I detect from the medical reports she has probably played with some of the psychiatrists in portraying, for example, to Dr Rose, herself as being the helpless victim of a litigation process which has brought about the mental distress which she suffered from and thus attributable to the motor car accident. When she says that she wished she could stop it all and bring all of this to an end and I offered that option to her, because it clearly is an option, it was rapidly declined and her behaviour returned to close to normal very quickly. In that regard I found therefore that I was unconvinced about the existence of a serious depressive illness which could relate back to such a minor incident in one's life experience overall as a motor car accident, which happened back in April of 1990."
The judge accepted that the applicant showed signs of being severely upset and disturbed. That was consistent with the existence of a "severe long-term mental or severe long-term behavioural disturbance or disorder". The fact that the applicant was also histrionic and acting a role does not entail the contrary conclusion.
As I have said, there was a body of medical opinion that the applicant was seriously ill. On 26 March 1996, Dr Goel wrote to the applicant's solicitors saying that her mental state required urgent surgery to deal with the asymmetry. She said:
"I am writing to you to express my concern, regarding the urgent need for treatment for Ms Tina Daralievski. This relates to both her physical complaints related to injuries sustained in a motor vehicle accident, as well as the significant emotional symptoms, which are a direct result of the accident, as well as secondary to the physical injuries sustained. From an emotional perspective she has been severely depressed and at times I feel been a high suicide risk. I wish to express my concern regarding her symptoms of severe depression and suicide risk, and urge that the necessary papers approving further treatment be obtained without any further delay."
On 4 November 1996, Dr Goel reported:
"In summary, I am of the opinion that Ms Daralievski presents with history and clinical picture consistent with Major Depressive Disorder of moderate to severe degree. Her mental state meets all the DSM-IV criteria of the above diagnosis. I feel that the motor vehicle accident, and the resultant symptoms, i.e. Acute and chronic pain, and inability to receive treatment, have been primary precipitants to her Depressive Disorder."
On 7 March 1997, Professor Goss said:
"I would also note that the interminable delays have allowed her facial deformity to progress to a most advanced state. Thus she required the extensive correction described. Associated with these interminable delays, there has been prolonged bureaucratic and legal struggles, which associated with her worsening facial appearance have resulted in major psychiatric problems."
On 11 May 1998, Dr Goel wrote a long, detailed report on the applicant's psychiatric condition. She concluded:
"I am of the opinion, that Ms Daralievski, is suffering from a Major Depressive Illness, of a severe degree. I feel that the symptoms of the depressive illness, are directly related, to the physical insures she has sustained, in the motor vehicle accident in April 1990. As the symptoms of her physical injuries have progressed, so has her severity of depressive illness. As mentioned earlier, there is no history of psychiatric illness prior to the motor vehicle accident.
I perceive, that she may well require further hospitalisations, and still needs ongoing and regular psychiatric treatment.
I believe, that the psychiatric condition has not stabilised at this stage. I feel that the physical injuries, and their stabilisation, is directly related to the psychiatric condition. Hence, I feel her symptoms of Major Depressive Illness, are likely to continue in the future. I feel, that she will also need psychiatric help, in coming to terms with losses to her life such as career, social, physical and interpersonal relationships. Hence, she will need ongoing psychiatric treatment, and may require hospitalisations.
I feel that her prognosis is poor."
On 3 March 1998, Dr Rose reported:
"There is no doubt that Ms Daralievski is suffering from a major depressive disorder.
I consider that Ms Tina Daralievski is almost certainly permanently incapacitated for all forms of employment. I consider that there is a genuine risk of successful suicide. She will need ongoing psychiatric care, including possible repeated admissions to psychiatric hospital for the foreseeable future. Her prognosis indeed appears to be grim."
The only doubting voice was that of Dr Scanlon. He said, in a report dated 3 June 1996, that he was not convinced that the applicant was suffering from any psychiatric condition. However, his report was flawed in that he said:
"There is no way ... that the accident described to me, where no serious injury occurred ... that any psychiatric condition could eventuate."
He did not consider the possibility that the applicant's condition of hypertrophy was caused by the accident. That was an important omission.
In the light of the medical evidence I do not consider that it was open to his Honour to reject the view that the applicant was suffering from a major depressive illness resulting from the accident and in my view that illness did satisfy the description in paragraph (c) of sub-s.17 of the definition of "serious injury".
Although appeals from determinations under s.93 of the Act are governed by the principle applicable to appeals from discretionary judgments (Mobilio v.Balliotis [1998] 3 V.R. 833), in this case I am of the opinion that the judge fell into identifiable error that justifies this court's invention.
I would allow the appeal.
WINNEKE, P.:
I agree that this appeal should be allowed for the reasons which have been given by Buchanan, J.A.
It seems to me, as it does to Buchanan, J.A., that his Honour fell into error by paying no heed to the opinion expressed by the appellant's treating surgeon (Professor Goss) that, as a consequence of the motor car accident, the appellant had developed the painful and unsightly condition known as hemifacial hypertrophy or condylar hyperplasia. The Professor's opinion was central to the appellant's application because acceptance of it makes more readily plausible and understandable the further opinion expressed by Dr Goel, the appellant's treating psychiatrist, that the appellant has developed a major depressive disorder associated with her physical condition.
I cannot accept the contention made on behalf of the respondent that his Honour was entitled to, and should be taken to have rejected the opinion of Professor Goss because, on its face, it provides no proper foundation for the opinion expressed. The opinion appears to be at least inferentially supported by Messrs. Sambrook and Guerin, the two relevant experts to whom the Transport Accident Commission had referred Professor Goss's opinion for comment. Certainly no contrary opinion was expressed. Where, as here, the appellant's application for leave fell to be determined, as is the habitual practice, on the basis of the medical reports rather than viva voce evidence by the doctors, the judge should, I think, be prepared to infer that the treating surgeon had an appropriate basis for the expression of his opinion, in the absence of factors which made it glaringly obvious that he had none. In my view no such factors appear in this case. The judge assigned no explicit reasons for rejecting Professor Goss's opinion save and except for his expression of doubt that the disfiguring condition was causally related to the motor car accident because it "did not become a predominant feature" until some four or five years after the accident. All the relevant experts agreed that such a time-frame was part and parcel of the development of the condition. It seems to me to be tolerably clear from the whole of his Honour's reasons that he dismissed the opinions of Professor Goss and Dr Goel on the basis of his acceptance of the opinion of Dr Scanlon, a psychiatrist who saw the appellant but once in May of 1996 on behalf of the Transport Accident Commission. Dr Scanlon's opinion was that the appellant was in essence, in the grip of a "litigation neurosis", was thoroughly immersed in her own medico-legal problems, and was "hanging all her problems onto the hook of the subject accident". In respect of this opinion, His Honour said:
"It is easy to perceive wisdom where someone says something you agree with but I do accept what Dr Scanlon says about that. It strikes me as being good sense; it strikes me as being logical and it strikes me as apposite to the problems which this young lady has been experiencing."
In my view, the problem which attended the ready acceptance of Dr Scanlon's opinion was that he had not been favoured with any report from Professor Goss or from Dr Goel. He expressed of course no view, and was not qualified to do so, as to whether the disfiguring condition in the face was attributable to the motor car accident. He furnished his opinion at a time before the surgical intervention of Professor Goss and before the time when the appellant's psychiatric condition had become sufficiently florid for her treating psychiatrist to admit her to the Adelaide Clinic for aggressive treatment including electroconvulsive therapy. In other words, Dr Scanlon had a very incomplete picture of the appellant upon which to found his opinion. In my view his Honour fell into error in using it to form a conclusion that he could safely dismiss the closely analysed opinions of Professor Goss and Dr Goel. It also led him to dismiss, and indeed in a dismissive way, the opinion expressed by Dr Rose.
It is for these reasons that I agree with Buchanan, J.A. That this appeal should be allowed. It is true, for the reasons which the Court gave in Mobilio v. Balliotis [1998] 3 V.R., particularly at pp.836 to 837, per Brooking, J.A., that it will not lightly interfere with the decision made by the trial judge on an application of this kind. Nevertheless, where the Court perceives errors of the magnitude to which I have referred, it will intervene.
The respondents have submitted that, if the Court concludes that the appeal should be allowed, it should remit the matter to the County Court for re-hearing in the light of the conclusions to which this court has come. Where, however, the errors perceived relate wholly to the misconstruction of medical reports, and not to any view which the judge formed of the appellant's credibility, this Court, I think, is in as good a position as the trial judge to form its own conclusions as to the proper disposition of the application.
CHERNOV, J.A.:
I agree that for the reasons given by the other members of the Court this appeal should be allowed.
WINNEKE, P.:
All members of the court are of the view that we should dispose of this application ourselves. On the construction of the material which we have before us, we are satisfied that the appellant has established that she is suffering from a "serious injury" within the meaning of sub-paragraphs (a) and/or (c) of sub-s.17 of s.93, and that, accordingly, she should be given leave to bring proceedings in respect of that injury.
Mr Gillies, I notice that the time has now lapsed for the bringing of such an action pursuant to the Limitations statute, but there was an application to extend the time pursuant to s.23(a) before his Honour?
(Discussion ensued.).
WINNEKE, P.:
The formal orders of the court will be that the appeal is allowed with costs.
The orders made by the Court below will be set aside and in lieu thereof the Court will order that the applicant have leave to bring proceedings pursuant to the provisions of s.93 of the Transport Accident Act. We further order that the respondents to the application below pay the applicant's costs of the proceeding before the County Court, including reserved costs (if any). Such costs to be taxed in default of agreement on Scale D. The Court directs pursuant to the provisions of the Appeal Costs Act that there be a certificate granted to the respondents to the appeal.
Anything further ?
COUNSEL:
No, Your Honour.
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