Marco v Australian Cable Manufacturing (Aust) Pty Ltd
[2003] VSCA 101
•22 July 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 8631 of 2001
| STANISLAW MARCO | |
| Appellant | |
| v. | |
| AUSTRALIAN CABLE MANUFACTURING (AUST) PTY LTD | Respondent |
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JUDGES: | ORMISTON and PHILLIPS, JJ.A. and ASHLEY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 July 2003 | |
DATE OF JUDGMENT: | 22 July 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 101 | |
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Accident compensation – Compensable injury – Application for leave to bring common law proceedings – Alleged psychiatric injuries – Whether primary judge adjudicated upon all injuries relied upon by the appellant.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B.W. Collis QC with Mr A.D.B. Ingram | Holding Redlich |
| For the Respondent | Mr D.F.R. Beach SC with Mr S.A. O’Meara | TAC Law Pty Ltd |
ORMISTON, J.A.:
I will ask Ashley, A.J.A. to deliver the first judgment.
ASHLEY, A.J.A.:
The appellant, Stanislaw Marco, by amended originating motion filed 8 September 2000, sought a determination that he had suffered serious injury within s.135A of the Accident Compensation Act 1985, and leave under that section to commence a common law proceeding against his past employer, Australian Cable Manufacturers (Aust) Pty Ltd, in respect of injuries allegedly suffered in compensable circumstances on 14 August 1997.
The application was heard on 9, 12 and 13 November 2001. Reasons were handed down on 23 November, the substantial consequence of which was that the application was dismissed with costs.
Now Mr Marco appeals. His point is a short one: that a fair reading of the reasons of the primary judge reveals that injuries upon which the appellant relied at the hearing were not considered by the learned judge when determining the application.
I am very conscious that it is not the function of this Court to subject a judge’s reasons to over-zealous scrutiny in an attempt to discover some fault; and of authorities which say that reasons given on an application such as this may be more abbreviated than one would expect upon the trial of a proceeding. In my respectful opinion, however, the reasons in the present case do disclose the error of which the appellant complains.
The basic circumstances of the application may quickly be sketched. The appellant, a man now aged 56, migrated to this country in 1987. He commenced work with the respondent in about 1994 as a machine operator. He claimed - although the matter was one of controversy, that controversy was not much agitated on the hearing of the application – that he had suffered injury when he struck his
head on an overhead metal bucket on 14 August 1997. Clear it was that he had ceased work on or about 22 August and that he had not thereafter been in employment until the hearing of the application, being under medical treatment throughout.
Controversy centred upon the questions what compensable injury the appellant suffered; and whether the injury was serious for the purpose of the definition contained in s.135A(19). The first question encompassed two aspects: from what injury or injuries had and was the appellant suffering; and, in the case of each such injury, was the same caused – I use that word colloquially – by the incident of 14 August 1997?
The appellant delivered amended particulars of injury dated 9 October 2001. They were not well drafted, but they showed that he alleged injury falling under both sub-paragraphs (a) and (c) of s.135A(19). Somewhat reconstructing the particulars, the appellant alleged injury to the cervical spine on the one hand; and on the other hand a raft of psychiatric injuries – aggravation of an underlying paranoid psychotic disorder, anxiety and depression, and somatization or pain disorder.
When the application came on for hearing counsel for the appellant identified each of the alleged psychiatric injuries in his opening.
The material adduced on the application consisted in substance of affidavits sworn by the appellant, a multiplicity of reports, mainly medical, and oral cross-examination of a few persons – the appellant and Drs Nathar, Nathaniel and Bongiorno. Dr Nathar was a consultant psychiatrist who had treated the appellant on a continuing basis from 22 March 1999. Dr Nathaniel had been the treating general practitioner in 1997. Dr Bongiorno was the treating general practitioner from early 1998.
Dr Nathar was one of three psychiatrists whose evidence, using the word expansively, was placed before the judge. His evidence consisted of two reports, dated 28 October 1999 and 27 September 2001, and oral cross-examination and re-examination. The other psychiatrists examined the appellant for medico-legal purposes – Dr Kaplan for the appellant’s side and Dr Fail for the respondent’s side. A report from Dr Kaplan dated 18 August 2001 was put into evidence and so were reports from Dr Fail dated 5 November 1997 and 29 May 2001.
At the end of the evidence counsel addressed. It is clear that counsel for the appellant submitted that the evidence justified a finding that his client had suffered a multiplicity of psychiatric injuries each of which satisfied the requirements of s.135A. He particularly referred to a paranoid disorder and somatoform disorders. Concerning the latter, he submitted that it alone “would result in a finding of severe psychiatric injury in favour of” the appellant.
The learned judge was not satisfied that the appellant had proven serious injury falling within sub-para. (a) of s.135A(19). That conclusion is not challenged. He then turned to consider the application of sub-para. (c). His starting point was that:
“There was general agreement between psychiatrists who had examined the plaintiff that he is not, from a psychiatric viewpoint, fit for work. The issue is rather the cause of his present psychiatric state.”
In order to determine the question of causation it was, logically, necessary as a precursor to decide the nature of the appellant’s “present psychiatric state”; for not only did the amended particulars of injury and counsel’s opening and closing addresses propose that there was more than one type of psychiatric injury, but some of the medical evidence supported that position.
Having identified the question which he considered to be critical, his Honour began with the evidence of Dr Nathar as contained in that doctor’s first report. There the doctor had identified two conditions from which the appellant was suffering: a post-concussional syndrome; and a paranoid psychotic disorder. The learned judge characterised both as psychiatric conditions. He described the latter as “anxiety and depression associated with paranoid psychotic disorder”. Two points should be made. First, in my respectful opinion his Honour was wrong to characterise post-concussional syndrome as a psychiatric condition. Second, his Honour evidently attached anxiety and depression to the paranoid disorder, though I do not think that the doctor did so in his report.
His Honour noted Dr Nathar’s initial opinion that he did not think so, but it was impossible to say, whether the compensable injury had aggravated the paranoid disorder which the doctor considered had been present for several years before August 1997 but in non-incapacitating form.
His Honour then analysed the progress of and a change in Dr Nathar’s opinion. At the outset the doctor had not related the appellant’s psychiatric state to the head injury, but by the time he reported again in 2001 he did so - most particularly, as the learned judge saw it, with respect to the pre-existing paranoid disorder.
Referring to the second report, his Honour said that the doctor had “expanded upon what he meant by post-concussional syndrome”. With respect, a reading of the doctor’s report showed that in fact he was now saying that the original syndrome had progressed into a chronic anxiety depressive reaction - and was thus related to the incident of 14 August 1997. Such a condition, the doctor said, might be characterised as a somatoform disorder. In any event, his Honour’s reference to post-concussional syndrome was, I consider, really by the way; for his apparent focus was on Dr Nathar’s changed opinion with respect to the part played by the incident of 14 August 1997 on the supposed paranoid disorder. His Honour was critical of the appellant’s evidence for the sole purpose, as it seems to me, of undermining the relevant opinion.
Then his Honour turned to the reports of Drs Kaplan and Fail. The former proposed a range of possible psychiatric explanations for the appellant’s unexplained symptoms: somatoform disorder, pain disorder; or otherwise an expression of underlying anxiety and depression if there was continuing physical injury. In the case of each diagnosis the doctor discerned a relationship with the incident of 14 August 1997. His Honour’s focus, however, seems to have been upon a point at which Dr Kaplan parted company with Dr Nathar. That is, Dr Kaplan reported: “I am unable to obtain any evidence that Mr Marco has been suffering from a paranoid psychotic illness.”
Going to Dr Fail’s reports, his Honour noted the doctor’s opinion that the appellant was suffering from a chronic anxiety and depressive state and that –
“he [the doctor] expressed the view that the head injury suffered in the accident was not ‘a significant contributing factor’ to the plaintiff’s present psychiatric condition.”
It should be noted that Dr Fail said nothing specific about whether the appellant suffered from a paranoid disorder; nor whether the appellant suffered from a somatoform or pain disorder. Further, contrary to what his Honour said, the doctor did not express an opinion that the accident was not a significant contributing factor to the appellant’s “present psychiatric condition”. The doctor’s opinion was confined to the absence of a relationship between the condition which he discerned to be present and the accident of 14 August 1997.
His Honour’s review of the psychiatric evidence which, it must respectfully be said, contained a number of misconceptions, led on to this conclusion:
“While I accept that the plaintiff is suffering from a psychiatric condition, on the basis of the psychiatric evidence before me, and particularly the unsatisfactory state of that evidence with respect to a connection between the head injury suffered in the accident and the plaintiff’s paranoid psychotic disorder, the plaintiff has failed to satisfy me that this condition has been caused by what I regard as a relatively minor head injury suffered in the accident.”
Mr Ingram of counsel , who appeared with Mr Collis QC for the appellant, submitted that whilst his Honour did not specifically say what psychiatric condition he found to exist, it should be taken to be confined to the paranoid psychotic disorder referred to in that particular paragraph. He argued that his Honour’s review of the psychiatric evidence subsequent to his analysis of Dr Nathar’s first report was really directed to giving the lie to the doctor’s change of opinion concerning the relationship between the reported paranoid disorder and the compensable injury. That change of opinion was unsound because the doctor had acted upon unreliable statements made by the appellant; or because anxiety and depression – which his Honour took to be manifestations of the paranoid disorder – were said by Dr Fail to be unrelated to the incident. Alternatively again, the opinion assumed the presence of a condition the existence of which Dr Kaplan denied.
Mr Beach of Queen’s Counsel, who with Mr O’Meara appeared for the respondent, disputed the reading of the particular paragraph in his Honour’s reasons proposed by appellant’s counsel. He submitted that his Honour had reviewed the psychiatric evidence for the purpose of distilling what were said to be the probable or possible psychiatric injuries from which the appellant suffered; and that the phrase “psychiatric condition” where first appearing in the critical paragraph should be taken to mean each and every psychiatric condition from which his Honour found the appellant suffered – though he, Mr Beach, did not say what those conditions were. He submitted that so much of the paragraph as commenced with the words “and particularly” and ended with the words “psychotic disorder” assisted his argument. It showed that the paranoid disorder was only part of the psychiatric condition described at the outset.
It is, of course, true that if his Honour had found that the appellant suffered only from a paranoid psychotic disorder he could have explicitly said so; and that he could then have proceeded to say why there was unsatisfactory evidence connecting that condition with the incident of 14 August 1997. Even so, the whole flow of the reasons pertaining to sub-paragraph (c) injury, containing as they did the problems to which I have adverted, seems to me to have been directed to dealing with the paranoid disorder which Dr Nathar had initially considered was the predominant condition, and a condition unrelated to the incident of 14 August 1997. Since at the outset his Honour attached the anxiety and depressive condition to the alleged paranoid disorder, it is understandable why he should not have dealt discretely with the presence and aetiology of that condition. So far as the possible presence of a
somatoform or pain disorder not dependent upon continuing physical injury was concerned, apart from the citation of portion of Dr Kaplan’s report, all was silence.
In the event, as I said earlier, in my opinion the appellant has made out his complaint that a matter raised at trial pertaining to determination of the appellant’s application was not the subject of adjudication. I think it necessary, in the circumstances, that the appeal be allowed, the order below set aside and the application remitted for re-hearing.
ORMISTON, J.A.:
I agree.
PHILLIPS, J.A.:
I agree.
ORMISTON, J.A.:
The order of the Court is that the appeal be allowed, the orders made in the County Court on 23 November 2001 be set aside, and that the application be remitted to the County Court for further hearing and determination according to law.
(Discussion ensued.)
ORMISTON, J.A.:
We do not propose to place any restriction on the order for remitter and there will be no remark recorded in the other matters. There is the question of costs. Ordinarily the appellant should get his costs. Is that not so, Mr Beach?
MR BEACH:
There is nothing I can say on that, Your Honour. I would seek a certificate under the Appeal Costs Act.
ORMISTON, J.A.:
Order that the respondent pay the appellant’s costs of the appeal and direct that there be a certificate. The orders have been set aside. The question of costs of the trial is left to the judge hearing the matter on remitter. Those are the orders.
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