Tavares & Anor v Tavares [2003] VSCA 12

Court of Appeal (Vic)|2003-02-28|Before: PHILLIPS and BATT, JJ.A. and O'BRYAN, A.J.A.

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 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.

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]

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.

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.

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]

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.

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]

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.

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."

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."

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] VicRp 32; [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.

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.

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]

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.

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."

"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]

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.

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.

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.)

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.

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."

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.

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]

I have previously referred to Dr Aalders' reports and evidence.[42]

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.

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.

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.

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.

In my opinion the appeal should be dismissed.

[1] [1939] HCA 23; (1939) 62 C.L.R. 464 at 531 per Dixon, J.

[2] [1968] HCA 34; (1968) 118 C.L.R. 271 at 279 per Barwick, C.J.

[4] See for example Administration of Papua and New Guinea v. Daera Guba [1973] HCA 59; (1973) 130 C.L.R. 353 at 453 per Gibbs, J.

[5] [1951] VicLawRp 54; [1951] V.L.R. 380 at 383 per Coppel, A.J.

[6] [1938] HCA 15; (1938) 59 C.L.R. 744 at 758 per Latham, C.J., and at 763 per Evatt, J.

[8] [1967] VicRp 89; [1967] V.R. 732 at 737-8 per Lush, J.

[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.

[11] [1938] HCA 15; (1938) 59 C.L.R. 744 at 758-759 and 762-763.

[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.

[15] Section 49(9) of the Administrative Appeals Act 1984 (now s.51(3) of the Victorian Civil Administrative Tribunal Act 1998).

[17] Affidavit of the respondent sworn 31 October 1995, para 43.

[24] Decision of the Tribunal, 5 April 1995, at page 13. Emphasis added.

[25] Section 93(17), para.(c) of definition.

[29] Defendant's Final Submissions, p.7.

[30] Appellants' written submission at p.16. (Appeal Book Vol.3, E77).

[31] Appellants' written submission at p.26. Underlining is the appellants' emphasis. (Appeal Book Vol.3, E87).

[32] Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129; Transport Accident Commission v Dennis [1998] 1 VR 702; Mobilio v Balliotis [1998] 3 VR 833; Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436.

[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.

[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] FCA 450; (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] HCA 59; (1973) 130 C.L.R. 353; Accident Compensation Commission v. Detar [1989] VicRp 82; [1989] V.R. 931; Milojevic v. Roh Industries Pty. Ltd. [1991] SASC 2894; (1991) 56 S.A.S.R. 78.

[38] Blair v. Curran [1939] HCA 23; (1939) 62 C.L.R. 464 at 531.

[39] Turner v. Love (1995) 21 MVR 314 at 324.

[41] Transcript AAT hearing at 247 (Appeal Book Vol. 2 at B499).

43] Ground 2 in its reference to "cure" overstates the finding. My understanding of what his Honour found appears at [66] and [68].

[46] Transcript at 224 (Appeal Book Vol 4).

Transport Accident (Impairment) Regulations 1988

At a glance

Court

Decision date

Before

Source

Judgment (145 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)