Tavares v Tavares
[2003] VSCA 12
•28 February 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.6747 of 2000
| ROALDER TAVARES | |
| Appellants | |
| v. | |
| GAYLE TAVARES | Respondent |
---
JUDGES: | PHILLIPS and BATT, JJ.A. and O’BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 and 5 February 2003 | |
DATE OF JUDGMENT: | 28 February 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 12 | |
---
Accident compensation - Transport accident – “Serious injury” – Application for leave to bring proceedings at common law – Previous determination by Tribunal of degree of impairment – No “issue estoppel” created by Tribunal’s finding of relevant injury – Any “issue estoppel” irrelevant to the course of hearing of the application for leave – Judge’s findings of fact not vulnerable to challenge – Reasons for judgment not inadequate – Appeal against grant of leave dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr. A.G. Uren Q.C. with Mr. I.A. Miller | TAC Law Pty. Ltd. |
| For the Respondent | Mr. T.P. Tobin S.C. with Mr. A. Keogh | Holding Redlich |
PHILLIPS, J.A.:
In my opinion this appeal should be dismissed. In substance I agree with the reasons advanced by O’Bryan, A.J.A. in the judgment which his Honour is about to deliver, but I shall express my reasons about the so-called "issue estoppel" in my own words, as briefly as I can.
First, it seems to me that the trial judge was perfectly entitled on the evidence before him to find that the previous tragic events in the respondent’s life were firmly behind her by the time she came out of jail. In this respect he said:-
"I am satisfied that the term in custody is a turning-point in her life’s saga. She received treatment there, and I formed the view that a redemptive/rehabilitative process occurred. The plaintiff had served her time. A line had been drawn across her life’s history. ...
Understandably, the defendant’s case is reliant upon the notion that the plaintiff had a strong and persistent disposition to manifest psychological, psychiatric and emotional instability in the face of trauma; that she had, so to speak, been bred to anxiety and depression because of her lifetime experiences. It is argued, therefore, that any manifestation of any sort of disorder following the 1987 car accident is simply a repetition of an inherent and recurring continuum. What this fails to acknowledge is the plaintiff’s own efforts to rise out of the mire. Nowhere is this effort more apparent than in her repeated attempt to engage in her employment.”
In other words, whatever the respondent's mental state of being in the past due to the terrible events that she had experienced from time to time, by the time she was released from prison she had learnt to cope with life - and was coping - before the occurrence of the transport accident in May 1987. Perhaps that was an assessment of the respondent’s condition with which everyone might not agree, but his Honour saw and heard the respondent in evidence and on this aspect at least I am far from persuaded that the judge fell into any relevant error. The finding he made was open to him and cannot now be successfully challenged.
That being so, it seems to me to follow, given the evidence before the trial judge and especially the expert evidence, that his Honour was equally entitled to find, as he did, that, in so far as the respondent suffered a post traumatic stress disorder after the accident, that was a result of the accident. A similar finding was made by the presidential member when the matter came before the tribunal in 1994 and 1995, and quite apart from whether or not that determination gave rise to any relevant "issue estoppel”, the like finding was made in the County Court on this occasion, albeit that the hearing was some years later. The judge was perfectly clear on the matter. He said:-
“I am satisfied that [the plaintiff] has suffered a post-traumatic stress disorder as a consequence of the car accident.”
In the context of the reasons for judgment as whole, that was a finding by his Honour both that the respondent had suffered (and indeed was still suffering) from a post traumatic stress disorder and that that disorder was a result of the accident. Given that finding by the judge, I cannot see the relevance of the so-called “issue estoppel”, which was in essence that at the time of the hearing before the tribunal in 1994 the respondent was suffering post traumatic stress disorder as a result of the accident.
Mr. Uren contended, however, that such a finding made it inevitable that, if the judge found (as he did) that the respondent was currently suffering from a post traumatic stress disorder as a result of the accident, his Honour would find the condition to be long lasting: that was a matter, he submitted, of simply comparing the two dates, 1994 and 2000. But, as I apprehend it, that was not the course followed at the hearing in the County Court. The appellants were apparently permitted to explore in detail all of the plaintiff’s previous history and to argue that her mental condition after the accident was no more than a continuation of her pre-existing condition. That case was simply rejected by the judge so that, again, the “issue estoppel” had no direct significance. What was significant was the judge's own finding that as matters stood the respondent was suffering from a post traumatic stress disorder as result of the accident in 1987.
As to the “issue estoppel” itself, one may start with the proposition that an issue estoppel, if properly so-called, binds the parties and their privies: Blair v. Curran[1], Ramsay v. Pigram[2]. In this context that refers to those who are privy in interest and one who is not a party is the privy in interest of another who is a party if - and only if - the former claims "under or through" the latter: Ramsay[3]. To that extent a privy is in a secondary position: or to put it in another way, the privy will be bound only if the party is bound. Here, the Commission was a party to the hearing before the tribunal, but the firstnamed appellant (the driver of the motor vehicle who is now alleged to have been a wrong doer) was not. In the application made in the County Court for leave to bring a proceeding at common law, the firstnamed appellant is a party, but, not having been a party to the proceeding before the tribunal, he cannot be bound by any issue estoppel arising thereout, unless he is the privy in interest of the Commission (which, it may be assumed for the sake of the argument, is bound by the tribunal determination and any relevant issue estoppel arising thereout). But in no sense at all is the firstnamed appellant the privy of the Commission, for he is claiming neither under nor through the Commission. He is a party in his own right, joined in the application for leave because he is the alleged wrongdoer against whom the respondent must mount her claim for common law damages (if she is permitted to sue at all). If the firstnamed appellant is to be sued in proceedings brought by the respondent for damages, he will be sued for his own sake as an alleged tortfeasor and the earlier proceeding before the tribunal, between the respondent and the Commission, is simply res inter alios acta. Perhaps it might be possible in certain circumstances to call the Commission, if regarded as a sort of statutory insurer of the wrongdoer, the privy of the alleged wrongdoer, but, even if that were so it would not make the wrongdoer the privy of the Commission. The so-called issue estoppel had relevance in the County Court only if the firstnamed appellant was bound and for the reasons I have given he was not.
[1](1939) 62 C.L.R. 464 at 531 per Dixon, J.
[2](1968) 118 C.L.R. 271 at 279 per Barwick, C.J.
[3]118 C.L.R. at 279.
Accordingly there is no need, in my opinion, to explore the effect of the decision of the tribunal and to answer the question whether such is capable of giving rise to an issue estoppel between the same parties (being the Commission and the respondent) in other proceedings. It may be, as Mr. Uren submitted, that the nature of the proceeding before the tribunal is purely “administrative” (whatever force that may have nowadays[4]) but I do not decide it. Or it may be that, whatever its character, the tribunal (whether the Administrative Appeals Tribunal or now the Victorian Civil and Administrative Tribunal) does have statutory authority to determine some issues finally between parties (such as, in this instance, the degree of impairment of the victim of a transport accident) and to determine those issues in such fashion and to such effect as to bind the parties to that determination thereafter. But if that be so, it by no means follows that the tribunal has authority to decide finally any more than, in a case like this, that degree of impairment, whatever collateral issues might have been examined or even resolved along the way: see for example Torrisi v. Oliver[5]. There is much force, I think, in the argument that, if any issue estoppel arose out of the determination of the tribunal, it did not go beyond the respondent's relevant degree of impairment of the whole person at the end of 1994.
[4]See for example Administration of Papua and New Guinea v. Daera Guba (1973) 130 C.L.R. 353 at 453 per Gibbs, J.
[5][1951] V.L.R. 380 at 383 per Coppel, A.J.
Moreover, as appellants' counsel pointed out, there is authority denying that an issue estoppel about a state of affairs at one point of time (in this case, in 1994) can form the basis for a conclusion about a like state of affairs at a later time (in 2000) if there must be further evidence led about events in the meantime: see O'Donel v. Commissioner for Road Transport[6], Weston. v. Ray[7] and Franciscan Order of Friars Minor v. Kew[8] - though whether in this instance that was the only use to which the respondent was seeking to put the so-called issue estoppel is a matter which I need not explore. As I have indicated, I prefer to rest the decision here on the difference between the parties which, to my mind, is sufficient to deny any relevance in the County Court hearing to the “issue estoppel” said to have arisen out of the tribunal
hearing.
[6](1938) 59 C.L.R. 744 at 758 per Latham, C.J., and at 763 per Evatt, J.
[7][1946] V.L.R. 373 at 380.
[8][1967] V.R. 732 at 737-8 per Lush, J.
None the less (as I have said), and despite his Honour's early ruling that there was an issue estoppel, the so-called issue estoppel seems to have had no significance, given the way in which the hearing proceeded in the County Court. Accordingly I see nothing in ground 9 in the notice of appeal. As for other grounds, I agree in what Mr. Justice O’Bryan has written.
BATT, J.A.:
In my opinion, this appeal should be dismissed. I agree substantially with the reasons for that conclusion given by O’Bryan, A.J.A., whose judgment I have had the benefit of reading. But my reasons for considering that the ruling of the primary judge on issue estoppel is erroneous are those that follow.
I did not find it necessary to decide whether a determination of the former Administrative Appeals Tribunal of Victoria can give rise to an estoppel, but for the purposes of argument I assume that it can. Even so, however, since the Tribunal was an administrative tribunal set up by statute, a determination by it can only give rise to issue estoppel upon a matter on which it has jurisdiction to give a binding decision and not upon a collateral matter albeit that it was necessary to form an opinion on that for the purpose of deciding the matter which the tribunal had jurisdiction to decide: Torrisi v. Oliver[9]. Relevantly, the Tribunal here had jurisdiction only to determine the degree of the respondent’s impairment and, perhaps, whether the impairment resulted from the transport accident of 16 May 1987[10]. The nature of the condition giving rise to or constituting the impairment was collateral.
[9][1951] VLR 380 at 383-384.
[10]Compare the expression “person who is injured as a result of a transport accident” in s.46A and s.47(7) of the Transport Accident Act 1986 as in force at the date of the Tribunal’s determination.
Secondly, whilst any issue estoppel otherwise arising bound the Commission
before the County Court judge, it did not bind the first appellant because an issue estoppel binds only parties and their privies and the first appellant was not a party to the review of the determination of the degree of impairment nor, in respect of that matter, a privy of the Commission.
Thirdly, the estoppel only operates when the issue that subsequently arises is the same as that determined earlier, and here there was a temporal difference between the issues. Thus, the Presiding Member of the Tribunal stated on 5 April 1994, “I am satisfied that the [respondent] is (scil., today) suffering from … post traumatic stress disorder as a result of the accident (scil., of 16 May 1997)”, whereas the immediate question for the judge was whether the applicant was so suffering on 25 August 2000, the date of judgment. Nor is it possible to take the Tribunal’s finding quoted above and, by adding to it evidence (for instance, that there has been no change since in the respondent’s condition), to arrive at a like estoppel as at 25 August 2000: O’Donel v. Commissioner of Road Transport.[11]
[11](1938) 59 C.L.R. 744 at 758-759 and 762-763.
Accordingly, no issue estoppel arose.
O'BRYAN, A.J.A.:
The court has before it for decision an appeal from a judgment of his Honour Judge Gebhardt in the County Court delivered on 25 August 2000. By way of an originating motion and summons filed in the County Court on 1 July 1993, the respondent (the plaintiff in the County Court) made an application to the County Court pursuant to s. 93(4) of the Transport Accident Act 1986 (“the Act”) for leave to bring proceedings for the recovery of damages in respect of injury sustained as a result of a transport accident which occurred on 16 May 1987. Section 93 of the Act bars the respondent from recovering any damages in any proceedings in respect of the injury, otherwise than by leave of a court, since the Transport Accident Commission had determined the degree of impairment of the respondent was less
than 30 per centum and the Commission was not satisfied that the injury was a “serious injury” as defined in the Act.
It is convenient to refer to the plaintiff in the County Court as the respondent. At various times in the appeal book and in the judgment appealed from, the respondent is referred to as the plaintiff. Where necessary, I shall substitute “[respondent]” for “plaintiff” in a quotation. It is convenient to refer to the defendants in the County Court as "the appellants". At various times they are referred to by the judge as the “defendant”. Sometimes it will be necessary to refer to Roalder Tavares as "the first appellant" and the Transport Accident Commission as either "the Commission" or "the second appellant".
His Honour determined that the respondent should be given leave to bring common law proceedings for the recovery of damages because of a “serious injury” as defined in para.(c) of the definition of that expression in s. 93(17) of the Act. The respondent had initially relied upon three physical and one psychiatric injuries suffered in a "transport accident" but, in the County Court, when the hearing commenced counsel for the respondent announced that the respondent would be seeking an order under para.(c) only. In para.(c) “serious injury” means: severe long-term mental or severe long-term behavioural disturbance or disorder.
Leave to appeal from the interlocutory order in the County Court was granted to the appellants by Buchanan and Chernov, JJA on 9 November 2000.
The grounds upon which the appeal is brought are as follows:
“1.The trial judge ought to have found that even accepting that the plaintiff was an honest witness, that she had not discharged the onus on her of showing that she suffered from a mental disturbance or disorder which was:
(a)the result of the transport accident of 16 May 1987, or
(b)either severe or long term within the meaning of s. 93(17)(c) of the Transport Accident Act 1986.
2.The trial judge ought not to have found that during the plaintiff’s term of imprisonment for manslaughter:
(a)she had been cured of the mental disturbance or disorder from which she had suffered prior to the commencement of that term of imprisonment;
(b)that such disturbance or disorder had ceased during that term of imprisonment.
3.Further, or alternatively, the trial judge ought not have so found any of the matters in paragraph 2 without expert evidence to that effect.
4.The trial judge ought to have found that the mental disturbance or disorder which the plaintiff alleged:
(a)was not the result of the transport accident of 16 May 1987; or
(b)was the continuation, recurrence, aggravation or acceleration of a chronic mental disturbance or disorder from which she had suffered prior to that transport accident;
(c)was the result, in whole or in part, of a predisposition to a chronic mental disturbance or disorder existing prior to the occurrence of that transport accident;
(d)was the result, in whole or in part, of other unrelated traumas which had occurred since the transport accident of 16 May 1987, namely a stillbirth on 19 November 1987 and a transport accident on 14 April 1988.
5. The trial judge ought to have found that:
(a)that part or degree of the mental disturbance or disorder alleged by the plaintiff which was the result of the transport accident of 16 May 1987 (if any) was not severe or long term within the meaning of s. 93(17)(c) of the Transport Accident Act;
(b)it had not been shown by the plaintiff that, that part or degree of the mental disturbance or disorder alleged by the plaintiff which was the result of the transport accident of 16 May 1987 (if any) was severe or long term, within the meaning of s. 93(17)(c) of the Transport Accident Act.
6.The trial judge should not have placed any weight, or any significant weight, upon the opinions of the medical practitioners relied on by the plaintiff, as they gave those opinions in ignorance of the plaintiff’s relevant medical history prior to the date of the transport accident of 16 May 1987.
7.The trial judge should not have placed any weight, or any significant weight, upon the medical opinions relied on by the plaintiff, as those medical opinions did not assess nor purport to assess the plaintiff’s medical condition at the date on which the application for leave was being assessed.
8.The trial judge did not take into account, sufficiently or at all:
(a)the failure of the plaintiff to call medical practitioners who she had recently consulted, (namely Dr Sabag, Mr. Basham and Professor Gibson) each of whom could have given evidence of their opinion of the plaintiff’s degree of mental disturbance or disorder (if any) and whether any such condition was as a result of the transport accident of 16 May 1987;
(b)the failure of the plaintiff to cross examine Dr Klepfisz, a psychiatrist whose report was in evidence and relied on by the defendants;
(c)that Dr Aalders, a witness called on behalf of the plaintiff, was not aware of the plaintiff’s relevant medical history prior to the transport accident of 16 May 1987 until cross-examination;
(d)that Dr Aalders gave the opinion, upon which the trial judge relied, in ignorance of the plaintiff’s relevant medical history, which was an essential or relevant matter for him to have known in giving that opinion;
(e)that Dr Aalders said that he had agreed with Dr Klepfisz’s report in which Dr Klepfisz’s opinion was that the plaintiff was not suffering from post traumatic stress disorder but simply anxiety and depression;
[(f)]the relative expertise, in psychiatric matters, of Dr Aalders and Dr Klepfisz;
9.The trial judge should not have held that the respondent [meaning the defendant] was estopped from asserting that:
(a)the plaintiff had not suffered a post traumatic stress disorder as a result of the transport accident of 16 May 1987;
(b)at the time of the application for leave, the plaintiff was [not] still, suffering from a post traumatic stress disorder as a result of the transport accident of 16 May 1987,
by reason of the decision or reasons for decision of the Victorian Civil and Administrative Appeals Tribunal given on the hearing of an application by the respondent for the review of a decision made by the second named appellant with respect to her claim for benefits under the Transport Accident Act.
10.The reasons of the trial judge did not disclose why he considered the mental disturbance or disorder from which he found that the plaintiff suffered, was either severe or long term.”
Scheme of the Act
Since 1 January 1987 a person who is injured as a result of a “transport accident” is entitled to compensation calculated in accordance with the Act. The purpose of the Act is to establish a scheme of no fault compensation in respect of persons who are injured or die as a result of transport accidents[12]. Legal rights (to damages) outside the Act are governed by Part 6 of the Act, in particular by s.93, the relevant portions of which are now set out:
[12]Section 2.
"93. Action for Damages
(1)A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section.
(2)A person who is injured as a result of a transport accident may recover damages in respect of the injury if -
(a)the Commission has determined the degree of impairment of the person under section 46A, 47(7) or 47(7A); and
(b)the injury is a serious injury.
(3)If -
(a)under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and
(b)the degree so determined is 30 per centum or more -
the injury is deemed to be a serious injury within the meaning of this section.
(4)If -
(a)under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and
(b)the degree so determined is less than 30 per centum -
the person may not bring proceedings for the recovery of damages in respect of the injury unless -
(c)the Commission -
(i)is satisfied that the injury is a serious injury; and
(ii)issues to the person a certificate in writing consenting to the bringing of the proceedings; or
(d)a court, on the application of the person, gives leave to bring the proceedings.
(5)A copy of an application under sub-section (4)(d) must be served on the Commission and on each person against whom the applicant claims to have a cause of action.
(6)A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.
…
(17)In this section -
"pain and suffering damages" means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life;
"pecuniary loss damages" means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage;
"serious injury" means -
(a)serious long-term impairment or loss of a body 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."
It is common ground between the parties that the respondent was injured in Victoria on 16 May 1987 in a "transport accident" when a motor vehicle, which was being driven by the first-named appellant who is now her husband, and in which she was travelling as a rear seat passenger, struck an embankment and overturned several times on the Western Highway at St Anthony’s Cutting, Bacchus Marsh before coming to rest on its roof. A child of the respondent was a front-seat passenger. Another child of hers was a back-seat passenger. The respondent and the first appellant were trapped in the car and she feared he was dead. When she recovered consciousness she could smell petrol and she heard people saying "Hurry, it is going to blow." She said in an affidavit: "I was terrified, confused and in extreme pain." The respondent was pregnant. On 19 October the respondent was informed by her doctor that the child she was carrying was dead and he induced the birth of the child later that night.
The central issue became whether the respondent has legal rights to common law damages under Part 6 or was limited to compensation in accordance with Part 3. The compensation that the Commission is liable to pay to an injured person under Part 3 of the Act is calculated after the Commission has determined the degree of impairment of the person who is injured in accordance with Guides to the Evaluation of Permanent Impairment issued by the American Medical Association or methods prescribed for the purposes of s. 46A of the Act. The degree of impairment of the person found by the Commission determines the amount of the benefit payable to the person as a lump sum. If the Commission has determined that the degree of impairment of a person who is injured as a result of a transport accident is 30 per centum or more the injury is deemed to be a serious injury within the meaning of s. 93 of the Act. If the degree so determined is less than 30 per centum the person may not bring proceedings for the recovery of damages in respect of the injury unless the Commission, being satisfied that the injury is a serious injury, consents in writing to the bringing of the proceedings or a court gives leave to bring the proceedings[13].
[13]Section 93(4).
A person whose interests are affected by a decision of the Commission has an option to apply to the Tribunal for review of the decision within 12 months after becoming aware of the decision.[14] The Tribunal may make a different decision which stands in place of that made by the Commission.
[14]Section 77. Prior to the commencement of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal for the purposes of s. 77 meant the Administrative Appeals Tribunal of Victoria established by the Administrative Appeals Act 1984.
A determination of the Tribunal is binding upon the applicant and the Commission.[15]
[15]Section 49(9) of the Administrative Appeals Act 1984 (now s.51(3) of the Victorian Civil Administrative Tribunal Act 1998).
The Act thus offers a person who is dissatisfied with a decision of the Commission two options: to apply to the Tribunal to review the decision under s.77 and to apply to a court pursuant to s.93(4)(d) for leave to bring the proceedings. It is not obligatory to apply to the Tribunal before applying to a court.
The Commission Decision
On 4 June 1987 an application was made by the respondent to the Commission for determination of the degree of impairment of the whole person pursuant to s. 46A of the Act. The Commission did not determine the respondent’s degree of impairment until 28 June 1993. Details of how the assessment was made are not disclosed in the Appeal Book. The degree of permanent impairment of the respondent’s whole person as a result of a transport accident on 16 May 1987 was 27 per centum as determined by the Commission pursuant to ss. 46A and 47 of the Act.
The Commission must determine the degree of impairment of each person who is injured as a result of a transport accident and who appears to the Commission to be or to be likely to be entitled to an impairment benefit, if the person was not a minor when the accident occurred (which the respondent was not), 18 months after the accident; or when the injury stablizes, whichever last occurs[16]. As the Commission made a determination more than 18 months after the accident, I assume that the Commission considered the injury did not stabilize until about 28 June 1993, some six years after the accident occurred. The material provided to the court in the Appeal Book does not explain why the determination was delayed but two incidents occurred in the respondent's life subsequent to the accident which might have delayed the determination. The stillbirth in October 1987 was significant to the respondent and caused her stress. Medical opinion is that the loss of the foetus was not caused by or related to the transport accident. Nevertheless, the respondent believes that the accident contributed to the death of her child and believes that she became hypertensive. Further, the respondent became delusional and continued to believe that the transport accident caused the loss of the foetus. On 14 April 1988 the respondent was involved in a second transport accident in which she believes she suffered a whiplash injury from which she suffered for only a short time.[17] The second accident does not appear to have had any significant impact upon her mental state, but the position had to be watched.
[16]Section 46A(1)(a).
[17]Affidavit of the respondent sworn 31 October 1995, para 43.
The Tribunal Review
On 12 September 1993 the respondent made an application to the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the Commission pursuant to s. 77 of the Act. The hearing commenced on 5 December 1994 before a Presiding Member of the Tribunal and the decision was handed down on 5 April 1995. During the hearing the respondent and the Commission were legally represented. The first-named appellant was not a party. A transcript of the hearing shows that a range of reports from doctors and psychologists were tendered and relied upon by the parties. The respondent was called as a witness, examined and cross-examined. A number of doctors were called to verify their medical reports. Some doctors were cross-examined by counsel for the Commission.
Although the function of the Tribunal was limited to assessing the respondent's level of permanent impairment and was not to determine whether she had suffered "serious injury" as a result of the transport accident, it is desirable to record that the following witnesses, in addition to the respondent and her daughter, were called on behalf of the respondent and reports prepared by the witnesses were tendered in the course of their evidence:
1.Dr Oei, a general practitioner who treated the respondent between 1987 and 1990.
2.Dr Toh, a general practitioner who treated the respondent between May 1989 and August 1992.
3.Ms Angela Martin, a psychologist who saw the respondent on referral by Dr Oei in 1988. Her diagnosis that the respondent had a post traumatic stress disorder (PTSD) caused by the transport accident was rejected by the Tribunal because she was not a legally qualified medical practitioner.[18]
4.Dr Kaplan, a psychiatrist who formed an opinion in late 1994 that the respondent had developed symptoms of anxiety and depression caused in part by a PTSD arising from "her terrifying accident". The doctor relied partly upon tests conducted by Mr Monteleone, a psychologist.[19]
5.Mr Monteleone, a psychologist who formed an opinion that the respondent developed a PTSD and depression as a result of the transport accident.
6.Dr Edward Cole, a psychiatrist, who examined the respondent in October 1993 and opined that she suffered from a PTSD directly attributable to the accident and a chronic reactive depression.[20]
[18]Tribunal transcript at p.149.
[19]Tribunal transcript at p.155.
[20]Tribunal transcript at p.240.
The Commission called:
1.Dr G. Taggart, a gastroenterologist. His evidence was not relevant in the County Court proceeding.
2.Dr N. Strauss, a psychiatrist who reported in December 1993 that the respondent had a psychiatric impairment of 20%, half of which was attributable to the transport accident. He had not been told by the respondent about significant events to be mentioned shortly, namely her being charged with murder, being convicted of manslaughter and serving a sentence of imprisonment in Fairlie Prison before the transport accident.[21] Dr Strauss, upon being informed during the Tribunal hearing that Doctors Kaplan and Cole had both opined that the respondent suffered from a PTSD, stated that he thought it was a reasonable diagnosis.[22] He considered the respondent had a sociopathic personality disorder due to "a constellation of factors in her life".[23]
3.Dr Glaser, a psychiatrist, who examined the respondent in August 1989 and July 1990 and opined that the respondent suffered from a depressive disorder with an impairment of 25%, 40% of which was attributable to the accident.
4.Dr Gurry, a vascular surgeon. His evidence was not relevant to the County Court proceeding.
[21]Paragraph [31] below.
[22]Tribunal transcript at p. 308.
[23]Tribunal transcript at p. 309.
The Presiding Member provided very comprehensive reasons for her decision to set aside the Commission’s determination, having herself determined that the degree of permanent impairment of the applicant’s whole person as a result of the transport accident on 16 May 1987 was 22 per centum. That was a fresh determination of the appellant’s impairment made by the Tribunal based upon the material placed before it during the hearing. Counsel for the respondent had relied upon four areas of impairment: skeletal or spinal, psychiatric, irritable bowel syndrome and vestibular dysfunction in his final submission to the Tribunal. The Presiding Member assessed the respondent’s skeletal or spinal impairment at 12 per cent, irritable bowel syndrome at nil, vestibular dysfunction at nil and her psychiatric impairment at 21 per cent as a result of the accident. In relation to the psychiatric impairment the Tribunal Member said:
“Having considered the evidence of the psychiatrists and the other material before the Tribunal, I am satisfied that the applicant is suffering from depression and post traumatic stress disorder as a result of the accident and in this regard I prefer the evidence of Dr Kaplan and Dr Cole to that of Dr Glasser and Dr Strauss who were not prepared to make a diagnosis of post traumatic stress disorder. Overall, I accept Dr Cole’s psychiatric impairment assessment and find that the applicant has a whole person impairment of 21% as a result of the accident and 14% as a result of other factors, including the stillbirth.”[24]
[24]Decision of the Tribunal, 5 April 1995, at page 13. Emphasis added.
The evidence before the Tribunal disclosed that the respondent had a significant pre-1987 history unrelated to the transport accident and had suffered from anxiety and depression at various stages in her life. As a very young child, the respondent had been in a motor vehicle accident when her parents had been killed. She had experienced sexual abuse in the care of relatives. Her first marriage had become an unhappy relationship and ended when her husband was murdered. She was charged with another person with murder, was convicted of manslaughter and served a sentence of imprisonment which ended about 12 months before the 1987 transport accident. As a consequence of these stressful experiences she suffered from time to time and was treated for psychological disorders.
The Presiding Member correctly held that the Act required her to find the degree of impairment as a result of the 1987 transport accident, for the respondent was entitled to compensation only in respect of injuries causally related to that accident. The Presiding Member applied Regulation 6(2) of the Transport Accident (Impairment) Regulations 1988 to establish the degree of impairment as a result of the accident after deducting the proportion that was unrelated to the transport accident. Applying the methods prescribed in Regulation 6(2), the Presiding Member found that the applicant’s unrelated impairment totalled 26 per cent and that the percentage attributable to the accident was 30 per cent. Applying the formula prescribed in the regulation, that led to a finding that the respondent's degree of impairment as a result of the transport accident was 22 per cent.
The decision of the Tribunal did not help the respondent for the degree of impairment was less than 30 per centum. The Commission remained unsatisfied that the injury was a "serious injury" as defined by the Act and it declined to issue a certificate to the respondent consenting to the bringing of proceedings for the recovery of damages.
Application to the County Court
The application to the County Court to which reference was made earlier remained dormant between July 1993 and April 1995. Further delay occurred when the Commission appealed to the Supreme Court on a costs issue following the decision of the Tribunal. The costs issue and outcome are of no relevance to this appeal. However, it was not until April 2000 that the hearing began in the County Court. A Practice Note in the County Court dated 20 July 1992 applicable to the application pursuant to s.93(4)(d) of the Act required the respondent to name as defendants the Transport Accident Commission and each person against whom the respondent claimed to have a cause of action. The respondent named Roadler Tavares, the driver of the vehicle involved in the transport accident, as the first defendant, and the Transport Accident Commission (the Commission) as the second defendant. It is not altogether clear why the second appellant needed to be joined as a defendant. Section 93 does not say so expressly. Sub-section (5) requires a copy of the application to be served on the Commission and that may be sufficient reason to name it as a defendant.
The third paragraph of the Practice Note stipulates that evidence on the application shall be given by affidavit unless the Court otherwise orders. The fourth paragraph stipulates that any medical opinion on which a party proposes to rely shall be in writing and exhibited to an affidavit. The seventh paragraph empowers the court hearing the summons to order that the deponent of any affidavit or any person who has given a medical opinion exhibited to any affidavit be examined before the Court at such time and place as it directs.
The four volumes of the appeal book are poorly prepared. They contain irrelevant matter, such as the costs appeal to the Supreme Court, relevant matter is not located in chronological order and it is very difficult to locate in a mass of material all the medical reports to which Judge Gebhardt referred in his reasons for judgment. A higgledy-piggledy approach was adopted with regard to the filing of affidavits and exhibiting medical and other reports. A list in chronological order of the medical and psychological reports, commencing 29 June 1983 and finishing 3 May 2000, relied on by the parties in the County Court is set out in the judgment of Judge Gebhardt. Many of them were irrelevant because the respondent's case was limited to "serious injury" based upon "severe long-term mental or severe long-term behavioural disturbance or disorder".
The respondent's solicitor, Ms Toop, made an affidavit on 10 September 1993 to which were exhibited eight medical reports marked with the letters A to H. Save for Exhibit G (two medical assessment reports made by Dr Glaser in September 1989 and August 1990) the other exhibits were not relevant in the County Court in April 2000 because they dealt with skeletal injuries. Dr Glaser had examined the respondent twice on behalf of the appellants and gave evidence during the Tribunal hearing. Another solicitor, Ms Wallace, made a number of affidavits. In an affidavit made on 24 December 1998 13 medical reports and the like were exhibited and marked AJW1 to AJW13. Those exhibits included a report of Dr Kaplan dated 1 December 1998 and also, although not medical reports in the strict sense, psychological assessments of the respondent made by Ms A. Martin and Mr A. Monteleone which were before the Tribunal. Ms Wallace made a further affidavit on 26 April 2000 to which were exhibited a medical report of Dr Kaplan dated 2 November 1994 and a report of Dr Aalders dated 29 October 1998. The 1994 report of Dr Kaplan was referred to in the Tribunal hearing. A medical report of Dr E. Cole dated 14 October 1993 was exhibited to an affidavit of Ms Wallace made on 20 April 2000 and a medical report of Dr Aalders dated 3 May 2000 was exhibited to yet another affidavit of Ms Wallace, sworn on 4 May 2000. This is not intended to be exhaustive of the relevant medical reports relied upon by the respondent in the County Court. The respondent herself made three affidavits which were filed in the County Court, the first sworn on 27 July 1993, the second on 31 October 1995 and the third on 26 April 2000.
On behalf of the appellants several affidavits were made and filed in 1993 and 1998 to which a number of medical reports were exhibited. Relevantly, reports made by Dr Strauss in December 1993 and October 1994 and Dr A. Klepfisz in December 1997 and July 1999 were exhibited and in November 1999, and again in March 2000 lawyers for the appellants gave notices for certain experts to attend for cross-examination. Relevantly, the appellants required Mr A. Monteleone, Dr A. Kaplan and Dr R. Oei to attend. A report of Mr Ian Joblin dated 30 January 1985, a transcript of evidence of Dr A. Nicholson during the murder trial of the respondent in February 1985 and an unsworn statement made by the respondent during the murder trial, were also tendered in evidence on behalf of the appellants.
The County Court proceeding was called on for hearing before Judge Duckett on 26 April 2000. Counsel for the respondent informed the Court that the application for leave under s.93 would be limited to "serious injury" in the form of severe long-term mental or severe long-term behavioural disturbance or disorder.[25] Counsel also said that he would call Dr Cole, Dr Kaplan, Dr Oei and Mr Monteleone for the purposes of cross-examination pursuant to the notices to attend and that he would want to cross-examine the appellants’ expert Dr Klepfisz. Counsel also foreshadowed an issue estoppel argument if the appellants contended that no post-traumatic stress disorder arose from the accident contrary to the finding made by the Tribunal.
[25]Section 93(17), para.(c) of definition.
Counsel for the appellants informed the judge that he would contend that the respondent suffered very significantly from psychiatric dysfunction from a very early age and had a long history of such dysfunction. Counsel said that he wished to put a number of events of dysfunction to the respondent's doctors Cole and Kaplan and to Mr Monteleone, the psychologist, he and the doctors being unaware of relevant matters when they expressed a diagnosis of PTSD attributed to the transport accident.
Due to the estimated hearing time, the hearing was adjourned by Judge Duckett and began before Judge Gebhardt on the next day.
A preliminary issue was then raised by the respondent when the appellants informed the court that they would contend that the respondent did not suffer an injury, namely depression and post traumatic stress disorder (PTSD), as a result of the transport accident in June 1987. The respondent argued that the decision of the Tribunal to which reference was made in paragraph [30], and in particular to the words in italics therein, estopped the appellants from denying in the County Court that the respondent had suffered an injury, namely depression and PTSD, as a result of the transport accident. Very detailed submissions in writing on legal aspects of the estoppel issue were placed before Judge Gebhardt.
His Honour’s ruling was handed down in writing on 3 May 2000. After referring to a considerable number of authorities his Honour held that the Tribunal should be regarded “as a judicial tribunal for the purposes of the doctrine of issue estoppel”. He observed:
“I am satisfied that Presiding Member Preuss found that there was an accident and that the injury arising from that accident was a post-traumatic stress disorder. Whether that disorder is a ‘serious injury’ is now a matter for this court and clearly the defendant [appellant] is at large in leading evidence which could rebut the existence of that disorder as at the time of the hearing. On this basis evidence of matters arising or occurring since the 1994 decision (sic hearing) may be led.”[26]
[26]Appeal Book Vol 3, F18.
The ruling purportedly denied the appellants an opportunity to contend in the County Court that the appellant had never suffered PTSD as a result of the transport accident in 1987 or that if PTSD existed in 1994, it was no more than a continuum of a psychiatric/psychological disorder which existed before 1987. Consistent with the ruling, the appellants were apparently to be limited to leading evidence which would show that since 1994 the respondent was no longer suffering from PTSD or, if she was, that it was not a severe long-term mental or severe long-term behavioural disturbance or disorder for the purposes of para.(c) of the definition of “serious injury” in s. 93(17) of the Act.
The correctness of the issue estoppel ruling is the subject of ground 9 in the Notice of Appeal.
After the ruling was published, discussion occurred between counsel and his Honour as to the witnesses who would be required to attend for cross-examination. Senior Counsel for the appellants indicated that he did not wish to have Dr Kaplan called, but he might change his mind and, if he did, he would put his opponent on notice.[27] Counsel for the appellants never again requested that Dr Kaplan be made available for cross-examination. As Drs Cole and Oei and Mr Monteleone were not called, I assume that counsel for the appellants advised counsel for the respondent that he did not require them.
[27]County Court transcript at p.90.
The hearing in the County Court
The respondent was called and verified her three affidavits. She was then cross-examined extensively about her life and medical condition before the transport accident. When it was suggested to her that she had been suffering a psychiatric dysfunction for many years manifesting itself in panic attacks, stress, depression and anxiety, she said in reply: "That was another lifetime." Cross-examination of the respondent was directed to her credit. Counsel for the appellants was intent upon showing that the respondent in her earlier affidavits, and in providing a history to doctors, had made significant and deliberate concealments about events before the transport accident. This was to support an argument that the diagnoses of a number of the respondent's specialists were unreliable because they were founded upon an incomplete and inaccurate history which concealed psychiatric dysfunction pre-existing the 1987 transport accident..
The cross-examination proceeded upon this basis. Later in the hearing, Dr Aalders, a general practitioner from Lightning Ridge in New South Wales, was called on behalf of the respondent and cross-examined about his diagnosis formed as a result of treating the respondent since 9 October 1991 for about eight years. He described a "wide range of psychological symptoms" which included insomnia "which was severe", anxiety and depression which was "particularly severe” in his 3 May 2000 report. He said:
"I remain of the opinion that she continues to suffer from chronic [PTSD] and that this has had a severe detrimental effect on her ability to function as a person, as a worker and as a member of a relationship. It has impaired her ability to form close or intimate relationships, maintain any sort of employment or to enjoy the ordinary pleasures of life."[28]
The trauma that triggered PTSD was the transport accident, in his opinion.
[28]Appeal Book Vol.3 D28.
During cross-examination, Dr Aalders was asked about a note he made in his medical records on 27 April 1998 regarding a report from Dr Klepfisz he had discussed with the respondent. The witness said he noted that he had no problems with the report. He was asked: "Why would you note that you had no problems?": He replied: "Because it probably agreed with what I already thought." The next question was: "I see. So if in that report, Dr Klepfisz was of the view that she was not suffering from a post-traumatic stress disorder, and simply anxiety and depression, that was something you agreed with and noted in the consultation of April 1998. Is that right?" He answered: "That's right."
There is some inconsistency between this answer and the opinion he expressed in his report and in evidence that the respondent was suffering from PTSD. The question was double-barrelled and the answer is ambiguous.
When Dr Aalders left the witness box, counsel for the respondent closed his case. Senior Counsel for the appellants did not indicate that he wished to adduce evidence or cross-examine any doctor who had provided a medical report. Counsel agreed to provide the judge with written submissions and did so.
Portions of the transcript of the Tribunal hearing were provided to the judge in the Plaintiff's Schedule of Evidence.
In the written submission of the appellants, the following appears:
"The ‘injury’ under consideration must of course be 'as a result of a transport accident’ within the meaning of [the Act] … for it to be compensable. In this case this requires the court to identify, assess and evaluate which elements of the plaintiff's current psychiatric/psychological conditions (if any) have arisen 'as a result of the subject transport accident', and which elements are unrelated to or are not as a result of the subject transport accident, but have arisen from other incidents or traumas in the plaintiff's life, both pre and post accident."[29]
[29]Defendant's Final Submissions, p.7.
Notwithstanding the ruling on the issue estoppel, the appellants invited his Honour to make findings as to whether any current psychiatric/psychological conditions had arisen as a result of the transport accident. Paragraph 2 in the submission correctly acknowledged that the time for assessing whether an injury is serious within the meaning of s.93(4) is the date on which the application for leave is considered.
Subsequently, in the written submission under a heading: The Plaintiff's Pre-Existing Psychiatric/Psychological Conditions, counsel for the appellants invited the judge to make a comparison of the condition of the respondent immediately before the subject accident and her condition thereafter, and to make an assessment of the extent of any additional impairment.[30] Next followed a detailed analysis of personality factors of the respondent identified by Mr Joblin, a psychologist, in January 1985 and Dr Nicholson in 1982.
[30]Appellants' written submission at p.16. (Appeal Book Vol.3, E77).
Finally, in this context, I note that the appellants succinctly summarized their position as follows:
"The defendant submits that the above material demonstrates clearly that at the time of the subject motor car accident, the plaintiff had entrenched psychiatric/psychological conditions which manifested themselves as stress, anxiety, panic attacks and depression etc. Such conditions were regularly aggravated by any circumstances stressful to the plaintiff, a person who had little or no capacity to deal with such circumstances (see Joblin report)."[31]
[31]Appellants' written submission at p.26. Underlining is the appellants’ emphasis. (Appeal Book Vol.3, E87).
One issue which his Honour was invited to decide was whether all the respondent's' post accident and current psychiatric/psychological conditions could be attributed to the effects of the transport accident. In doing so his Honour had to sift through a considerable body of medical opinions relied upon by the parties.
Reasons for Judgment
The respondent's credit was of considerable importance because her narrative of events in her life had been incomplete or inaccurate on occasions when she spoke to some doctors. His Honour found the respondent "to be open and attempting to be truthful". He added later, in commenting upon the appellants’ concern "to dent her credibility" during "rigorous cross-examination", that: "I formed the view, given the rigour of the questioning, that she was an honest woman."
These findings were not attacked on appeal.
His Honour listed in chronological order 40 medical and 5 psychological reports which I am prepared to assume were both read and taken into account by the judge.
After setting out in some detail the respondent's personal history, the judge reproduced from Mr A. Monteleone's reports the personal history she revealed to him. The judge found her history "both significant and important". Mr Monteleone was of the opinion that:
"[the respondent] sustained injuries consistent with a diagnosis of [PTSD] as a result of the motor vehicle accident on 16.5.87. As a result of the ongoing sequelae of the motor vehicle accident, and based on her presentation to me in September 1990, it was my opinion that [the respondent] developed symptoms of depression. In my opinion, the onset of the [PTSD] was caused by the motor vehicle accident in May 1987, and on balance no predisposing factors existed to account for this disorder".
Next, his Honour set out the opinion of Dr E. Cole in a report dated 14 October 1993. I shall quote only part of the passage;
"She is now suffering from a [PTSD] directly attributable to the accident, and also from a chronic reactive depression which is to be seen as stemming not only from the shock of the accident but also from the loss of her child which may or may not be related to the accident, and to the breakdown of the marriage."
His Honour also quoted extensively from report of Dr N. Aalders dated 3 May 2000. After referring to Dr Aalders' evidence in chief, the judge referred to the passage in cross-examination to which I referred in [49]. He said:
"[Counsel] tried to impugn the credit of Dr Aalders, particularly with respect to his clinical notes. In my view his attack upon these notes was selective and, therefore, misleading."
His Honour twice referred to the approach of the appellants being to rely upon the pre 1987 accident medical history of the respondent to assert that:
"the present condition was only a continuation of a pre-existing psychological and psychiatric imbalance about which the [respondent] was not always reliable in her history narrative to the many treating doctors."
In dealing with this issue, the judge referred to the Joblin report and to the respondent's evidence revealed in the three affidavits made by her in which she detailed many traumatic and sad incidents in her life and her history of employment pre and post accident.
His Honour found that the term in custody (about 16 months in 1985 to 1986) was a turning-point in the respondent's life. He said:
"I formed the view that a redemptive/rehabilitative process occurred. The [respondent] had served her time. A line had been drawn across her life's history. The [respondent] had been a victim of sustained trauma in her life, and she endured the consequences of her victimisation. In my view this did not entitle her to be consigned to a fixed category of irredeemable humanity."
This finding is the subject of ground 2.
The judge referred in his decision to the evidence of Dr Nicholson, a psychiatrist who examined the respondent in about 1981 or 1982, and gave evidence at the trial. Dr Nicholson saw her again in 2000 for the purposes of the County Court proceeding. The judge also referred to a report of Dr Klepfisz made in July 1999 in which he said that the respondent was not suffering from PTSD. Further reference will be made to Dr Klepfisz when the grounds of appeal are considered.
In the following paragraphs his Honour set out his findings when he granted leave to the respondent to bring common law proceedings for damages. In each paragraph the expression “car accident” is a reference to the May 1987 “transport accident”:
“Even if it is accepted that before the accident there were psychiatric/psychological dysfunctions to which the defendant refers, it is, in the light of Petkovski v Galletti [1994] 1 VR 436, reasonable to posit that the injuries flowing from the car accident were of themselves sufficient to satisfy the test for classification as a ‘serious injury’. By a comparison of the plaintiff’s condition before the accident and the condition after, there may be an aggravation of such severity and long-term consequences for the plaintiff that the criteria are satisfied.
I am satisfied that she has suffered a post-traumatic stress disorder as a consequence of the car accident. Further I am satisfied that it is a disorder of very considerable proportions which is severe and long-term. Further I am satisfied that it has affected her employment capacity, which is demonstrably supported by the outcomes of her repeated attempts to continue with employment and to further her qualifications: she was stymied by the recurrence of the outcomes of a post-traumatic stress disorder. The effects on her employability are long-term and, therefore, affect her financial capacity.
As she said about leaving Lightning Ridge, ‘I didn’t want to admit I was a failure.’ I am very conscious of all the very sustained compilation of the plaintiff’s extraordinary history and her frequent deceptions in acts of self-avoidance, but none of that, in my view, can detract from the stoic and renewing attitude that she had adopted after custody: she wanted to rebuild, and the car accident knocked down the rebuilding – ‘blew her whole world apart’.
Dr Aalders’ listing of the symptoms and the indicia of post-traumatic stress disorder were compiled in the context of the contemporaneous: he had seen the plaintiff and, notwithstanding any concealment upon which the defendant relied, I am satisfied that he had garnered as good a profile of the plaintiff as could be so done in the face of her brittleness and self-protection, both of which had been engendered over a long period of assaults upon her psyche.
She was a witness under sustained pressure, but she, despite some lapses into aggressive resentment, conceded her concealments and the reasons for them. She had good reason for protecting what little was left of her identity.”
His Honour was satisfied after applying the authorities to which he referred[32] that the impairment to the respondent was considerable, not simply significant or marked and serious for the respondent and long term in its effects upon her.
[32]Humphries v Poljak [1992] 2 VR 129; Transport Accident Commission v Dennis [1998] 1 VR 702; Mobilio v Balliotis [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436.
Grounds of Appeal
The 10 grounds of appeal may be considered under three headings.
1.That wrong findings of fact were made (grounds 1 to 8 inclusive).
2.That the issue estoppel ruling was wrong in law (ground 9).
3. That the reasons of the trial judge were incomplete (ground 10).
It will be convenient to deal with the grounds in reverse order.
Ground 10
The task of a judge who is required to determine an application made pursuant to s.93(4)(d) of the Act when reliance is placed upon para.(c) of the definition may be stated in the following terms:
(i)The judge must be satisfied on the balance of probabilities by the applicant that the mental injury complained of is in fact a “serious injury”.
(ii)The mental or behavioural disturbance or disorder must be proved to have resulted from the relevant transport accident.
(iii)To be severe the mental or behavioural disturbance or disorder must be capable of being fairly described at least as "very considerable".
(iv)To be long-term means measured as far-reaching.[33]
[33]Humphries v. Poljak (supra) at 140; Petkovski v. Galletti (supra) at 442-443; Mobilio v. Balliotis (supra) at 835-6, 846, 854, 858, 861; T.A.C. v. Dennis (supra) at 703.
I am satisfied that his Honour was well aware of the requirements of s.93(4)(d). One of the complicating features of the case was the appellants' contention that the respondent had a pre-existing mental disturbance or disorder which continued in the same form and to the same degree after the transport accident. If the case was one of aggravation of a pre-existing condition, the appellants would be required only to compensate the respondent for the damages they had inflicted.
His Honour found, by a comparison of the respondent's condition before the transport accident and the condition after, that the transport accident triggered a PTSD in a fragile person. The finding by his Honour that there was a causal relationship between the transport accident and PTSD is not attacked in ground 10. The attack is levelled at the failure of the judge to disclose why he considered the mental disturbance or disorder from which he found the respondent suffered was either severe or long-term. In my opinion, the attack is unjustified for the judge said:
"I am satisfied that it [PTSD] is a disorder of very considerable proportions which is severe and long-term. Further I am satisfied that it has affected her employment capacity. … The effects on her employability are long-term and, therefore, affect her financial capacity."
The review by the judge of the respondent's evidence, which he accepted as truthful, and the respondent's medical evidence, which satisfied him that the PTSD was very considerable, made it very clear in my opinion why the judge was satisfied that the mental disorder or disturbance was both severe and long-term. When the application was heard in the County Court 13 years had already elapsed since the accident and PTSD had been diagnosed and the disorder was ongoing indefinitely. In the opinion of some doctors, the respondent's earning capacity would be affected long-term. The reasons offered were sufficiently complete in my opinion, particularly as the proceeding was interlocutory in nature.
This ground is not made out.
Ground 9
The issue estoppel ground does not determine this appeal, as I shall explain. Before the Tribunal the respondent had claimed impairment in respect of four separate areas, one being "psychiatric" and three being physical. After dealing with the areas of physical impairment, the Tribunal dealt with the respondent's claim in relation to psychiatric impairment. After examining the opinions of four psychiatrists and other material, the Presiding Member said: "I am satisfied that the applicant is suffering from depression and [PTSD] as a result of the accident." She gave as her reason that she preferred the respondent's medical evidence.
In the respondent's further outline of submissions on issue estoppel to Judge Gebhardt dated 27 April 2000, in paragraph 3 counsel submitted as follows:
"The plaintiff submits that in the circumstances the defendant is estopped from denying that the plaintiff suffered an injury, namely depression and [PTSD], as a result of the transport accident. Nothing in the plaintiff's submission, if it is accepted, would prevent the defendant from seeking to prove that if the plaintiff is currently suffering [PTSD] and depression that is not as a consequence of the transport accident, or simply that the plaintiff is not currently suffering [PTSD] and depression."
As already mentioned his Honour gave his ruling on issue estoppel on 3 May 2000: see paragraph [43] above. In his subsequent reasons for judgment, Judge Gebhardt came back to the ruling "relating to the question of issue estoppel and the finding of the then AAT on 5 April 1994 [1995] when Presiding Member Preuss assessed a level of impairment at 22% on the basis of a finding of a [PTSD]."
Much later in his reasons, the judge referred to the appellants seeking to rely upon the pre-accident medical history of the respondent and their assertion:
"that the present condition is only a continuation of a pre-existing psychological and psychiatric imbalance about which the plaintiff was not always reliable in her history narrative to the many treating doctors."
After conducting a thorough examination of the evidence, the judge again returned to the issue estopped ruling. He said:
"Clearly the defendant was entitled, notwithstanding my ruling with respect to Presiding Member Preuss's findings in the A.A.T., to raise and to test the issue of whether the [PTSD] at the time of hearing was of a sufficiency to satisfy the criteria [judicially] established as constituting a 'serious injury'."
I agree with Mr Uren, counsel for the appellants, this paragraph is to be understood as meaning that the appellants could test whether PTSD found to exist in May 2000, satisfied the criteria for "serious injury". Five paragraphs later, the judge said: "I am satisfied that she has suffered a PTSD as a consequence of the car accident.", meaning suffered and is still suffering from [PTSD] as a consequence of the car accident. He added, he was satisfied "that it is a disorder of very considerable proportions which is severe and long-term."
Later his Honour made the statement:
“I have had little regard to the evidence before the AAT in December 1994.
I made a ruling about the issue estoppel, but that has only constrained me with respect to the existence of a [PTSD]. It would not constrain me with respect to the issue before me, namely ‘serious injury’ and whether that disorder was still ‘in place’ some six years after the AAT ruling. Both parties have argued too much about the effect of that ruling: it was not a prescriptive or protective escape route. It was simply a finding that found subsequent legal respect”.[34]
[34]Appeal Book Vol.4, H23.
I interpret the last two sentences in that statement as meaning that his Honour had made independent findings based upon the evidence before him in the words in italics above. Consequently, should the issue estoppel ruling be wrong in law, it will be of no consequence should the remaining grounds fail to show specific error or that the decision was otherwise plainly wrong or wholly erroneous.
Returning now to ground 9, Mr Uren submitted that no issue estoppel arose for three principal reasons:
(a)The Federal Court has relevantly decided that no issue estoppel arises from a decision of the Commonwealth Administrative Appeals Tribunal.
(b)The necessary requirements for the establishment of an issue estoppel do not exist.
(c)The Administrative Appeals Tribunal Act 1984 did not empower it to make decisions which give rise to an issue estoppel.
Under the first reason, Mr Uren relied upon a number of authorities in which the Federal Court has taken the view that a finding upon an issue of fact by an administrative tribunal created by Commonwealth legislation will not give rise to an issue estoppel,[35] the basis being that under Commonwealth legislation, an administrative tribunal is engaged in the exercise of administrative and not judicial functions. Tribunal members are not judicial officers and the Tribunal has no judicial functions to perform. Mr Tobin for the respondent submitted that the Administrative Appeals Tribunal (Vic) was properly constituted and the decision was a final decision imposed on the Commission by the Tribunal. He relied upon a number of authorities[36] for the proposition that the Tribunal had authority to make a judicial determination directly involving an issue of fact or law.
[35]Bramwell v. Repatriation Commission (1998) 158 A.L.R. 623; Commonwealth v. Sciacca (1988) 17 F.C.R. 476; Wiest v. Director of Public Prosecutions (1988) 86 A.L.R. 464; Midland Metals Overseas Limited v. Comptroller-General of Customs & Ors (1991) 30 FCR 87.
[36]Administration of Papua New Guinea v. Daera Guba (1973) 130 C.L.R. 353; Accident Compensation Commission v. Detar [1989] V.R. 931; Milojevic v. Roh Industries Pty. Ltd. (1991) 56 S.A.S.R. 78.
I have considerable difficulty with this argument. The Tribunal was not constituted by a judge, the Presiding member was a lawyer. Its function was to review a decision of the Transport Accident Commission, a statutory administrative body, with powers and discretions to -
(a)affirm the decision under review;
(b)vary the decision under review; or
(c)set aside the decision under review; and
(i)make a decision in substitution for the decision so set aside; or
(ii)[not relevant].[37]
In making a decision pursuant to s.25(2), I consider that the Tribunal was making an administrative decision in that it was standing in the shoes of the Commission.
[37]Section 25(2) Administrative Appeals Tribunal Act 1984.
I consider it unnecessary to determine this first point for the issue estoppel ruling appears to have been departed from by the appellants and the judge appears to have determined all the findings of fact required in order for him to be satisfied that the respondent's application should succeed. The ruling did not inhibit counsel who appeared for the appellants in the County Court from adducing evidence or cross-examining doctors and psychologists whose reports were tendered as exhibits to affidavits filed on behalf of the respondent.
Under the second reason Mr Uren submitted that the requirement for the doctrine of issue estoppel that there be identity of parties was not satisfied in that the parties to the review before the Tribunal brought under s.77(1) of the Act were not the same as the parties to the application to the County Court brought under s.93(4)(d) of the Act. The Commission was a party to both the review and the application, but the first appellant was only a party to the application and could not be made a party to the s.77(1) review. I consider there is merit in this argument. Issue estoppel was defined by Dixon, J. in the following words[38]:
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies." (My emphasis.)
[38]Blair v. Curran (1939) 62 C.L.R. 464 at 531.
The words underlined have application, in my opinion, to the first appellant, the person against whom the respondent claims to have a cause of action. The first appellant and the Commission were not privies in a relevant legal sense, because the first appellant was a tortfeasor and the Commissioner was a statutory indemnifier. Only the Commission was a party to the s.77(1) review.
Also under the second reason, Mr Uren submitted that for an issue estoppel to arise, there must be an identity of issues and the task of the Tribunal is different to the task of the court.[39] The Tribunal makes a decision which stands in place of the Commission's and is required to make a determination of "degree of impairment of a person" by reference to Guides to the Evaluation of Permanent Impairment issued by the American Medical Association. The court must decide whether it is satisfied that at the date of hearing the applicant is suffering a serious injury related to a transport accident.
[39]Turner v. Love (1995) 21 MVR 314 at 324.
I consider there is an important difference. The Tribunal's finding was that the respondent's level of permanent impairment resulted from the 1987 transport accident. The respondent was not entitled to look behind this ultimate finding and use the finding that the respondent was suffering from depression and PTSD as a result of the accident to found an estoppel, in my view. The Tribunal had jurisdiction to determine the respondent's level of permanent impairment at the date of the hearing and nothing more. The finding that the respondent was suffering from depression and PTSD as a result of the accident was simply a step on the road to the ultimate decision and, in my opinion, was incapable of giving rise to an issue estoppel between the parties in the County Court. The determination of the Tribunal being within jurisdiction was binding on the Commission, but not on the court, because the court was required by law to be satisfied that the injury was a serious injury as a result of a transport accident, a different issue.
Mr Uren referred the Court to O'Donel v. Commissioner of Road Transport[40] for the proposition that the doctrine of issue estoppel does not permit each issue determined to be used to establish a separate and independent issue:
"[A]s against a successful party the unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be."
[40](1938) 59 C.L.R. 744 at 763.
I do not consider that the appellants were bound by the finding of fact made by the Tribunal which, together with other findings not relied upon by the respondent, were the foundation for the ultimate determination made by the Tribunal within its jurisdiction. Consequently, I consider the ruling was wrong and the judge should not have held that the appellants were estopped from asserting that the respondent had not suffered a PTSD as a result of the transport accident of 16 May 1987.
This is not the end of the matter. The Court invited Mr Uren to explain how the appellants were hurt by the issue estoppel ruling when it is clear that the judge ultimately put aside the ruling and made findings of fact for himself which satisfied him of every issue necessary for a decision giving leave to bring the proceedings.
Mr Uren submitted that counsel for the appellants was inhibited from cross-examining a number of the respondent's doctors. They would have been cross-examined on causation, continuance and existence of PTSD between 1987 and 2000, he contended. Reference to the transcript of the hearing in the court before Judge Duckett on 26 April indicates that senior counsel appearing for the respondent foreshadowed calling Dr Cole and presenting for cross-examination pursuant to the request of the appellants Dr Kaplan, Dr Oei and Mr Monteleone. Senior counsel for the appellants (not Mr Uren) foreshadowed that he would cross-examine the persons named above. Eventually, counsel for the appellants only cross-examined the respondent and Dr Aalders, and Dr Cole, Dr Kaplan, Dr Oei and Mr Monteleone were apparently not required to attend for cross-examination. Counsel for the respondent foreshadowed that he would seek to cross-examine Dr Klepfisz, but later notified the Court he no longer wished to do so.
I am not prepared to accept that counsel for the appellants were inhibited by the estoppel ruling from calling evidence or cross-examining any doctor or psychologist whose reports were relied upon by the respondent. Nor were they precluded from seeking leave to lead additional and different evidence or from testing the existing evidence in different ways as the hearing progressed. Counsel were very experienced in the jurisdiction, and not shy of making a submission, if appropriate. The transcript does not indicate that any request to call evidence or cross-examine any doctor or psychologist was made to the court and refused.
In my opinion, the error made in the issue estoppel ruling did not produce any miscarriage. The error became redundant because, as the hearing developed, it became apparent to the judge and the parties that the respondent had to satisfy him that she was suffering from a serious injury as a result of the transport accident and the "issue" on which the appellants were "estopped" played no part in the determination by the judge.
There is nothing in ground 9.
Grounds 1 to 8 inclusive - Factual errors
In considering these grounds it is first desirable to summarize the evidence relied upon by each party in the County Court. On the respondent's side, the principal medical evidence is found in the reports of two psychiatrists, Dr Cole and Dr Kaplan, and in the oral evidence and reports of Dr Aalders, a general practitioner. The respondent also relied upon the report of Mr Monteleone, a psychologist. The judge had the advantage of seeing and hearing both the respondent and Dr Aalders. Each one made a very favourable impression on the judge. The three affidavits of the respondent, particularly the third affidavit sworn on 26 April 2000, provided extensive information about the life history of the respondent. In addition, the reports of Dr Oei, who first treated the respondent in 1987 after the accident and referred her to Ms Martin, a psychologist, were important. Without exception, all the respondent's doctors and the psychologists were of the opinion that the respondent had developed a PTSD caused by the transport accident. Dr Cole also opined that the respondent suffered a chronic reactive depression.
Dr Kaplan first reported to the respondent's lawyers in November 1994. The history which the respondent related included details of the motor accident in which her parents were killed and of her unhappy life with her grandmother. The respondent also related her adult life history which included the murder and her experience in gaol. Dr Kaplan considered that the respondent had developed symptoms of anxiety and depression caused in part by a [PTSD] arising from her terrifying accident. Dr Kaplan again reported in December 1998. He considered that she continued to suffer from significant symptoms of depression and anxiety and her depression had undergone marginal improvement over four years. He said that she continued to describe symptoms of [PTSD] and phobic symptoms regarding car travel and her capacity to cope with stress remained limited.
Mr Monteleone treated the psychological disorder from September 1990 to October 1991 and prepared a report in June 1991. He reported again in July 1994, possibly for the purposes of the AAT hearing. He was aware of the many stresses in the respondent's life, including the death of her husband and the murder trial. He diagnosed PTSD and depression as a result of the transport accident after noting that the respondent exhibited five criteria for the assessment of PTSD.
In October 1993, Dr Cole reported that he considered the respondent was suffering from a PTSD directly attributable to the accident and also from a chronic reactive depression. He did not have at the time of his report a full history of the respondent's life. In evidence before the Tribunal in December 1994 a complete life history of the respondent was put before Dr Cole and he was asked his view as to the cause of the PTSD. He answered: "I think the symptom content theory indicates that it was the motor car accident, it’s that (scil. which) features in her nightmares and flashbacks and so on."[41]
[41]Transcript AAT hearing at 247 (Appeal Book Vol. 2 at B499).
I have previously referred to Dr Aalders' reports and evidence.[42]
[42]Paragraph [48].
On the appellants' side, the report of Mr Joblin, a psychologist, was relied upon, and also the evidence of Dr Nicholson at the murder trial. The medical evidence relied upon was in reports made by Dr Glaser, Dr Strauss and Dr Klepfisz.
Dr Glaser examined the respondent on 28 August 1989 and again on 26 July 1990 for medico-legal reports. In September 1989 he reported that he considered the respondent's predominant feature in her psychiatric presentation was that of a depressive illness and her current complaints included depressed mood, irritability, sleep and appetite difficulties and disturbances in her concentration. She also had some mild post-traumatic stress symptoms including recurrent memories of the accident and fears of travelling in a car. In August 1990, he reported that much of the respondent's distress, he considered, was caused by factors unrelated to the accident, particularly the stillbirth of her baby. He considered her psychological state had changed very little (if at all) in the ten months since he had last seen her.
Dr Strauss saw the respondent in December 1993 and October 1994 for a medico-legal report. He opined that the respondent had a long-standing personality disorder and was suffering from anxiety and depression. He said the accident was in part a cause of her depression and that a diagnosis of PTSD was too simplistic in light of her history.
Finally, the appellants relied upon two reports prepared by Dr Klepfisz as a result of interviews with the respondent in December 1997 and July 1999. Considerable weight was attached to the opinions of Dr Klepfisz by counsel for the appellants and particularly to the circumstance that counsel for the respondent did not cross-examine him. In relation to the failure to cross-examine Dr Klepfisz, I note that ground 8(b) alleges that the trial judge did not take into account the failure of counsel for the respondent to cross-examine Dr Klepfisz. In my opinion, it would have been unwise for the judge to draw any adverse inference against the respondent because her counsel failed to request the attendance of Dr Klepfisz for the purpose of cross-examination. Were the opinions of Dr Klepfisz strengthened because he was not cross-examined? I think not. In the court in which the application was heard, the practice, we were told, is to avoid bringing to court medico-legal witnesses if their reports are available. In my view, a party's case is not always strengthened because a doctor is not cross-examined by the opposite party. Equally a party's case is not always weakened because a party has chosen to forego cross-examination of a medico-legal witness. There are many reasons why the evidence of a witness may be rejected even though he is not cross-examined. For example, the expert who proceeds upon a wrong history may find his opinion is of little weight.
In December 1997, Dr Klepfisz did not have provided to him reports from Dr Cole, Dr Kaplan and Mr Monteleone. He did have a reasonably complete life history of the respondent. The respondent apparently presented poorly for Dr Klepfisz regarded the history as "incredibly complex", "she was talking in a rambling fashion having her own agenda" and "was responding so poorly to many of the questions being asked." The history included information about the murder of her husband and her imprisonment before the transport accident in 1987. He thought that the current symptoms described to him by the respondent were indicative of PTSD but he considered her extremely vague history raised the possibility of a deliberate distortion of her presentation. The doctor said: "Clinically the history she gives is of a chronic PTSD with associated anxiety of mild severity. However, she smiled often and looked in herself", whatever that may mean. He was not satisfied about the diagnosis of PTSD even though the symptoms were consistent with such a diagnosis. He also considered that her considerable pre-existing psychiatric problems independent of the motor accident may have added to the problems.
In his report dated July 1999, Dr Klepfisz reviewed the history and was informed about her current symptoms. She disclosed a history of nightmares about the 1987 motor accident. Nightmares are symptomatic of PTSD, but Dr Klepfisz considered the respondent's description "appeared to be deliberate embellishment". He did not consider that she had PTSD. His conclusion was:
"I continue to believe she has long-standing personality problems with anxiety and depression due to personal tragedies in her life over the years, and that the accident has aggravated this only if it is shown that the unresolved grief over the loss of the pregnancy is accident related."
Were the judge to accept Dr Klepfisz’s opinions as reasonable and capable of being given weight he would have had to first agree with Dr Klepfisz’s assessment that the respondent was not credible as an historian. But, having seen and heard the respondent in court he did not agree with Dr Klepfisz's assessment. He found, on the contrary that Dr Aalders’ opinion was more likely to be correct and he gave it weight.
That the respondent should suffer a serious psychiatric/psychological disorder following a terrifying motor accident could have come as no surprise to the doctors. Sequelae, such as anxiety, depression, stress from being in a motor car and nightmares, which are all criteria for PTSD, are not unexpected in an accident victim. Particularly is this so when a female victim suffers the loss of an unborn infant and delusionally believes the loss is caused by the accident.
The problem confronting the judge was to disentangle the numerous psychological disorders experienced by the respondent prior to 1987 following a number of very stressful events in her life.
Critical to resolution of the application were findings as to the respondent's mental health shortly before the 1987 transport accident and the nature and extent of the psychiatric/psychological disorder post the accident. All of these issues appear to have been considered carefully by the judge.
It is unnecessary to detail the submissions of Mr Uren on grounds 1 to 8 for his argument followed the complaints set out in the grounds. In my view the assertions in grounds 1, 2, 4 and 5 are without merit[43]. The allegation that the judge ought not to have found A, B and C has as its corollary that he ought to have found the contrary. No allegation is made that there was insufficient evidence upon which he made critical findings of fact. There was sufficient evidence and the judge was in the best position to give weight or not to give weight to particular matters of evidence and to make findings favourable to the respondent and unfavourable to the appellants. The conflict between the medical witnesses for each party had to be resolved by the judge on the balance of probabilities. When the judge found that the respondent was an honest and reliable witness, the strength of the opinions of the appellants' principal witness, Dr Klepfisz, was consequently diminished. At the same time, when the judge was favourably impressed by Dr Aalders, the case for the respondent was enhanced.
[43]Ground 2 in its reference to “cure” overstates the finding. My understanding of what his Honour found appears at [66] and [68].
Ground 6 asserts that the judge should not have placed any weight, or any significant weight upon the opinions of the respondent’s doctors who were ignorant of the pre-transport accident relevant medical history. This ground is directed entirely to the opinion of Dr Cole in his October 1993 report. The past history and social background provided to him by the respondent did not include any reference to the manslaughter verdict and sentence. The judge was entitled to place some weight on Dr Cole’s opinion. His Honour’s reasons for decision give no real indication of the weight which he gave to Dr Cole’s opinion. However, the fact that he referred to a passage in Dr Cole’s report makes it evident that he took into account the doctor’s opinion. In the absence of any indication from the judge as to the weight which he gave to Dr Cole’s opinion, it is impossible for me to conclude that he gave too much weight to the doctor’s opinion.
Ground 7 asserts that the judge should not have placed any weight, or any significant weight, upon the medical opinions relied upon by the respondent, as those medical opinions did not assess the respondent’s medical condition in May 2000. This ground cannot be directed to Dr Aalders for he was a witness at the hearing. I consider that some weight could be given to the opinions formed by Dr Cole (October 1993) and Dr Kaplan (late 1994) and indeed Mr Monteleone although he did not provide an opinion in June 1994. When they saw the respondent she was suffering from PTSD and depression as a result of the accident in 1987 which occurred some six or seven years previously. Again, the reasons for decision do not disclose how much weight he gave. I am not able to conclude that he used the evidence wrongly.
Mobilio v. Balliotis[44] is a case concerned with s.93(4) of the Act in which a judge at first instance refused leave to an applicant to bring common law proceedings. I use with respect a short passage in the judgment of the President, albeit that it was framed on an appeal against the refusal of leave[45]:
"It is enough for me to say that in the circumstances of this case, where the judge had the advantage of seeing and hearing the [respondent] and other medical witnesses, this court should not interfere with his decision, in the absence of demonstration of specific error, unless we are satisfied that it is plainly wrong. In my view no such error has been demonstrated and, far from being satisfied that the decision was plainly wrong, it seems to me that it was well open to the learned judge to come to the decision which he did."
I am a long way from being persuaded in this case, where the respondent was successful in her application, that the judge was plainly wrong or in error in preferring the case for the respondent. After all, his Honour's decision was in the result a purely interlocutory one, serving only to open the gateway to a proceeding for a claim for common law damages and not determining it.
[44]Supra.
[45]At 835.
Ground 3 raises a discrete point: whether the judge could have found that during the respondent's term of imprisonment for manslaughter:
(a)she had been cured of the mental disturbance and disorder from which she had suffered prior to the commencement of that term of imprisonment; and
(b)that such disturbance or disorder had ceased during that term of imprisonment,
without expert evidence to that effect.
The affidavit made by the respondent on 31 October 1995 disclosed in great detail her life history up to her release from prison on 23 June 1986 (paras 1 to 35). She described becoming friendly with a prison officer whilst in prison and the development of a relationship. She began to live with Roalder Tavares in late 1986 and experienced the joy of becoming pregnant in May 1987. Her description was enlarged in the history she provided to Mr Monteleone in 1990 where she said that upon her release from prison she was determined to make a new start in life and not feel that she should be punished for her past for the rest of her life. She told Monteleone that her second husband was pivotal to her new start, was supportive of her, took time to care for her children and provided a new focus in her life. Mr Monteleone said in his report, which the judge accepted: "My impression was that this chapter in her life had now, for the most part, passed."
This evidence, together with the respondent's cross-examination, which clearly impressed the judge, entitled him to make the finding I referred to in paragraph [66]. To a degree, the judge was assisted by the evidence of Mr Monteleone. I consider that the judge could make the impugned findings. His Honour is a judge familiar with the harshness and cruelties of life and the capacity persons have to redeem and restore themselves. I consider it was open to the judge to be satisfied that her psychological disorder was quiescent when she left prison without expert opinion. There was, of course, ample expert evidence that the condition lit up following the accident and was caused by it.
In my opinion ground 3 fails.
I have already considered and rejected parts (b) and (e) of Ground 8. I can deal shortly with part (a). There is no property in witnesses and it was equally open to the appellants to call the medical practitioners recently consulted by the respondent. One cannot speculate about the evidence those doctors would have given had they been called. Parts (c), (d) and (f) relate to Dr Aalders and may be considered together. It is not altogether clear from Dr Aalders’ report 3 May 2000 (para 2) what the doctor meant by the words: “she would often refer in both general and specific terms to various significant matters in her past”. In evidence, however, he said: “I was aware from quite an early stage in our professional relationship that she had been imprisoned for manslaughter, that her first husband had been murdered.”[46] It is not clear to me what “relevant medical history” prior to the transport accident of 1987 Dr Aalders did not have when he first formed his opinion that the respondent was suffering from PTSD. The doctor said he dealt with a lot of psychiatrically disturbed patients at Lightning Ridge. The judge was aware that Dr Aalders did not have qualifications in psychiatry, but was impressed by his qualities as a rural physician.
[46]Transcript at 224 (Appeal Book Vol 4).
In my opinion, Ground 8 fails.
Conclusion
In my opinion the appeal should be dismissed.
---
3