New South Wales Court of Appeal CITATION : DANKA DUROVIC v DR ROBERT ZABOW [2002] NSWCA 195 FILE NUMBER(S) : CA 40390/2001 HEARING DATE(S) : 18 April 2002 JUDGMENT DATE : 26 June 2002 PARTIES : DANKA DUROVIC v DR ROBERT ZABOW JUDGMENT OF : Mason P at 1; Barr J at 48; McClellan J at 49 LOWER COURT JURISDICTION : District Court LOWER COURT DC 9439/98 FILE NUMBER(S) : LOWER COURT Cooper DCJ JUDICIAL OFFICER : COUNSEL : Appellant: P Ramos Respondent: M I Bozic SC SOLICITORS : Appellant: Athena Touriki Respondent: Phillips Fox CATCHWORDS : Negligence - quantum of damages - medical negligence when doctor prescribed hormone replacement therapy in place of contraceptives - plaintiff fell pregnant and underwent a termination - psychological effects of termination and mental injury - whether consequences of negligence were exaggerated - contradictory evidence of cause of mental injury - failure to call one treating psychiatrist at trial - failure to inform treating psychologists and psychiatrists of other treatment - whether trial judge erred in assessing the true impact of the tort. (ND) CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167 Baker v Willoughby [1970] AC 467 DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40390/2001 DC 9439/1998 MASON P BARR J MCCLELLAN J Wednesday 26 June 2002 DANKA DUROVIC v DR ROBERT ZABOW JUDGMENT 1 MASON P: This is an appropriate matter to grant leave to appeal. The Court heard full argument. 2 At issue is the quantum of damages awarded in a case of admitted medical negligence. 3 The appellant, who was born in May 1975, left school at year 11. She moved in to live with her present partner when she was 16 years and nine months. There was a regular and satisfactory sexual relationship. The appellant did not wish to have children until she was considerably older. 4 During the period between leaving school and the events in 1996 with which this case is concerned the appellant obtained practically no paid employment. She received unemployment benefits. 5 On 2 January 1996 the appellant consulted the respondent Dr Zabow for a renewal of the contraceptive pill she had been using, tablets called Triferne. The respondent offered her trial packs of another contraceptive which he could give her for free. What he gave her were tablets called Trisequens which were in fact a hormone replacement therapy and not a contraceptive. The doctor's negligence was never in dispute. 6 The appellant fell pregnant. After seeking medical advice she decided to undergo a termination. She believed that her age and circumstances meant that she could not then sustain the responsibility of bringing up a child. 7 The termination took place on 2 May 1996 and there were no physical complications or lasting physical difficulties. Unfortunately the procedure left emotional scars which, if anything, have intensified over time. 8 The appellant said in evidence that she came to believe that she had murdered her child and thereby condemned herself to everlasting punishment in hell. Her guilt was reinforced by dreams about being cut open under anaesthetic. Her social life crumbled about her. By about September 1997 she had pushed away all her friends and all her partner's friends. She ceased to care for her appearance. She stopped shopping and cooking for the household. She struggled on with a beauty therapy course that she had been doing but thereafter was unsuccessful in obtaining any jobs. She felt disorganised and found difficulty in concentration. There was an attempt at suicide. 9 This evidence was generally corroborated by the appellant's partner, Mr Karmas (see J15-16). 10 The beauty therapy course was finished in July 1996. But the appellant was unable and/or unwilling to obtain suitable employment, despite various applications (sometimes under pressure from Centrelink, having regard to the unemployment benefits she continued to receive). She believed herself unable to get work, because no one would employ her because there was something about her that people do not want. 11 The appellant said that she enjoyed the company of children before the termination, but does not do so now. She feels that children sense that she is not a nurturing woman. The presence of pregnant women also arouse feelings of spite and jealousy. 12 Her general practitioner Dr Singer referred her to a psychiatrist Dr Wilcox on 14 April 1998. She saw Dr Wilcox many times over the period April 1998 to date of trial (November 2000). The reports of Dr Wilcox were put into evidence and they were generally corroborative of the history given by the appellant in court, as was Dr Wilson's testimony. 13 The appellant made no bones about her preoccupation to see the doctor punished. She lodged complaints with the Health Care Complaints Commission (in February 1998). In these proceedings (commenced in December 1998) she sought exemplary damages. I hasten to add that the appellant was well within her legal rights in both respects, but the co-existence of what became an admitted obsession to see the respondent suffer publicly complicates the issue of determining the level of compensatory damages in the event that an award of exemplary damages is refused. The appellant told the trial judge that she wanted the court to assuage her need for revenge by awarding exemplary damages against the doctor even though the appellant now apparently accepts that the doctor acted with (gross) negligence rather than ill intent towards her. The trial judge refused this part of the appellant's claim, and his decision in that regard is not challenged in the appeal. 14 The appellant's treating psychiatrist, Dr Wilcox, viewed this need for punitive vindication as a symptom of a continuing medical condition which to date the doctor had been unable to treat successfully. 15 It was common ground at the trial that, since the appellant suffered some physical injury (the pregnancy and abortion being treated as the natural consequences of the original negligence), her mental suffering consequent upon that injury is compensable whether or not it involved a diagnosable mental disorder. In any event, there was evidence of such a disorder: the consensus of the psychiatrists was that it is a form of adjustment disorder. 16 It was also common ground, as recorded at page 4 of the judgment, that: "…the plaintiff suffered from psychiatric consequences as a result of the termination of pregnancy. The real issue is the extent and nature of those consequences and the determination of this issue in turn depends upon the reliability of the plaintiff as an accurate historian." 17 The learned trial judge, Cooper DCJ, concluded that he was: … satisfied on the balance of probability that the realisation that she had an unwanted pregnancy, the fact that she had a termination of pregnancy, and some feelings of remorse following it, together with her obsessive desire to see the defendant punished, all combined to cause the plaintiff physical pain and discomfort as well as emotional problems although not to the degree she has claimed.(J28-9) 18 Judge Cooper awarded general damages of $20,000 (with a past component of $15,000); interest on the past component totalling $1345; past treatment costs of $6247; past earnings loss of $7500; interest thereon totalling $2260; and future treatment costs of $2100. The total verdict was $39,452. 19 The detailed grounds of appeal do not sit easily with the way the appellant advanced her case in the written and oral submissions in the appeal. In substance, the appellant argued that the trial judge erred in the manner in which he addressed the critical issue of her credibility. Such error is revealed in particular findings which are challenged. Alternatively, the appellant submitted that the general damages were too low for the findings actually made in her favour. It is unclear whether she challenges the award for economic loss, but if she does it is on the broad grounds already mentioned. 20 Judge Cooper made it clear that he had substantially discounted the plaintiff's claims for general damages and past economic loss because he was not satisfied that the consequences of the doctor's negligence were as serious as the appellant had represented to her treating psychiatrist and in her evidence in the District Court. He concluded that the appellant had exaggerated the effects of the termination primarily to wreck revenge on Dr Zabow (J35). Indeed, the judge went further in concluding in effect that the appellant's exaggeration was deliberate and manipulative (J29). The critical finding (at J 26-7) was: I have gone through the evidence in considerable detail and I have carefully considered all of the medical evidence and have had the benefit of seeing the plaintiff in the witness box. I am comfortably satisfied that she is an intelligent and shrewd young woman, who for the past four and half years (including in the witness box) has been doing her best to maximising [sic] her claim even to the point of manipulating her treating doctors and her partner Mr Karmas. 21 The medical evidence placed before the judge consisted of reports from doctors who were treating the appellant or were retained to examine her for medico-legal purposes. Only Dr Wilcox was cross-examined. 22 The key reports are summarised at length in the judgment. 23 Doctor Wilcox was a female psychiatrist to whom the appellant was first referred in April 1998. Her report included notes of some 36 consultations between 14 April 1998 and 12 September 2000. From the outset, the appellant reported a history of depression stemming from the unwanted pregnancy and its termination, coupled with extreme disappointment at what she saw as an inadequate response to it by the negligent doctor. The psychiatrist observed that her patient was quite focussed on the present court case (J 18-19). The appellant's evidence of bad dreams, loss of interest in sex, feelings of discomfort around children and pregnant women, fears of eternal damnation, lack of confidence and diminished concern in her personal appearance were well documented in Dr Wilcox's notes and reports. She recorded no significant past history and she had no doubt that the patient's unresolved difficulties stemmed from the termination. She observed that there had been considerable delay before the appellant sought any form of counselling. Nevertheless, the treatment of counselling and anti-depressant drugs had provided only limited relief. Dr Wilcox expressed the view that the appellant had lost a lot of confidence as a result of the termination and that this had affected her ability to seek employment. She expected an eventual full recovery but anticipated that it might take some years. 24 It is relevant to observe that these conclusions are stated notwithstanding that Dr Wilcox reports that it was only on the 23rd visit (on 14 July 1999) that the appellant "confessed to the fact that she had been seeing two psychiatrists at the same time". I shall return to this matter later. 25 Dr Wilcox gave oral evidence and was cross-examined. She acknowledged that the appellant's reaction to the termination was uncommon, but expressed the view that the appellant had been "unable to incorporate the termination into her life in general" (Tr 21/11/00 p91). She said that it had been a big part of the ongoing therapy to try to get the appellant to see that the doctor had made a mistake and that she had to let the matter go and move on from it. 26 As I read the cross-examination, it was not put to Dr Wilcox that the appellant had fabricated her condition. On the other hand the cross-examiner did explore the reliability of the appellant as a medical historian, the extent of her exaggeration and the presence of other stressors. Dr Wilcox agreed that the appellant had a very dependent personality which preexisted the termination of the pregnancy. 27 The defendant's reports included one from a consultant psychiatrist, Lisa Brown, who saw the appellant in July 1999. She expressed reservations about the appellant's reliability as a historian, having regard to her dramatic and exaggerated manner and various inconsistencies. Her provisional diagnosis was that the appellant had possibly suffered a major depressive syndrome when first documented in April 1998 (by Dr Wilcox) and that there were continuing mild depressive symptoms despite medication. She observed that the appellant seemed "to have become entrenched in her current symptoms and that whilst the legal process is ongoing, it is likely to exacerbate her current symptoms". She wondered about unresolved issues of ongoing disharmony with the appellant's mother. 28 The respondent established at trial that the appellant had been involved in an incident at Parliament House on 11 November 1997. She was participating in a rally in support of Franca Arena MLC. A security officer removed her from the precincts, apparently causing some minor physical injury and at least a degree of stress. She wrote letters of complaint to various governmental agencies, consulted solicitors with a view to legal proceedings and eventually filed proceedings claiming damages in the District Court. She said that the manhandling at Parliament House had caused ongoing stress, fearfulness and agoraphobia. 29 In the meantime she consulted a psychiatrist, Dr Juratowitch and gave him a history indicating that the Parliament House incident was a major factor in her present troubles. She saw him between November 1997 and November 1999. Dr Juratowitch provided the appellant with a certificate (in about April 1998) which supported a successful application to obtain a disability support pension. At one stage he also gave evidence on her behalf in some proceedings in the Residential Tenancies Tribunal concerning the stressful impact of her landlord's failure to replace a wet smelly carpet. 30 The appellant continued seeing Dr Juratowitch until November 1999. 31 In December 1997 she obtained a medical certificate from a general practitioner Dr Law to the effect that the Parliament House incident had caused a knee injury and post traumatic stress disorder (J13). 32 The issue of the impact of the Parliament House incident upon the appellant's condition after November 1997 loomed large at the trial. It does not appear that the appellant contended that the respondent was responsible for any exacerbation stemming from the later incident, which she at all times treated as tortious in its own right. Rather, the appellant said that her problems were the same before and after the Parliament House incident. Of course, there was evidence to the contrary, including the appellant's own admissions by conduct, as well as such inferences as could properly be drawn from her unexplained failure to call Dr Juratowitch as a witness. 33 Dr Juratowich answered a subpoena, issued by the respondent's solicitors, by a note in the following terms: As discussed by telephone I have been unable to locate Ms Danka Durovic's records. I have seen Danka on many occasions regarding her panic disorder and agoraphobia. These have been exacerbated following an incident with security guards at State Parliament house in [1997]. Treatment has principally been cognitive behavioural therapy for her severe anxiety disorders. At times SSRI type antidepressants have been trialed but without any beneficial effects. In regard to the pending court case Danka has never mentioned this to me, Danka has not mentioned any medical negligence or misconduct cases. 34 The appellant's failure to call Dr Juratowitch at the trial was properly regarded by Cooper DCJ as a significant difficulty for her case (J23). This finding assumed even greater significance because it was also established that the appellant had never told Dr Juratowitch about the abortion or any psychiatric problems stemming from it; and because (as indicated above) she kept secret the existence of Dr Juratowitch from her other psychiatrist, Dr Wilcox, until fifteen months after she had first started receiving treatment from the latter. Indeed, she made no mention of the Parliament House incident as a possible stressor until the 22nd visit to Dr Wilcox after that incident. 35 The appellant attempted to explain her failure to tell Dr Juratowitch about the unwanted pregnancy and its termination by saying that she had been unhappy to discuss such matters with a man and by suggesting, obliquely, that she had been acting under legal advice (see Tr 21/11/00 p65). The trial judge was not obliged to accept this explanation and he did not. 36 His Honour also observed that the appellant's attempted segregation of her psyche between the two treating psychiatrists heightened the difficulties for the court in placing full reliance upon the opinions of these psychiatrists. He also observed, correctly, that it was unfortunate that the appellant's conduct had impeded her treating doctors in adequately investigating the accuracy or reliability of the appellant's impression (quaere assertion?) that all her problems stemmed from the unwanted pregnancy (J8). 37 A close reading of the judgment reveals a number of specific factors which influenced Judge Cooper in his adverse credibility findings. These include: • observations about the appellant's intelligence and shrewdness in the context of conduct deliberately focussing upon the litigation or seeking to maximise her segregated claims stemming from the respondent's negligence and the allegedly tortious incident at Parliament House (J7, 8, 14-15); • evidence of dishonest or unreliable medical histories (J19, 23-6); • conduct inconsistent with the evidence presented in court and to Dr Wilcox (ie the assertions and conduct based upon the impact of the Parliament House incident); • ability to prosecute various "causes" vigorously, in contrast to her expressed obsession about focussing on the abortion and the need to punish the respondent (J27-8); • apparent inconsistencies in the appellant's expressed religious belief and her conduct (J28. See also Tr 12/11/00 p83). I am not suggesting that his Honour was only entitled to respond on those factors he could specifically enunciate (cf Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179). 38 I am unpersuaded that the judge erred in reaching these findings. I would therefore reject the appellant's challenges to them and to the more general conclusions based in part on them. 39 The learned judge also viewed the appellant's overwhelming desire for punitive vindication as a factor requiring caution before acceptance of her evidence at face value. The appellant submits that this indicates a failure to appreciate that the vindictiveness, justified or not, was a consequence of the tort. Reading the judgment as a whole (esp J29.2) I would reject this criticism, notwithstanding some ambiguous language at J28. At the end of the day the appellant's case depended in the main upon her credibility as a medical and testimonial historian. The judge first had to sort out the true impact of the tort before he could address the level of compensation which it called forth. 40 There was also evidence of a pre-existing condition, involving traits of dependence, avoidance of people and inability to obtain gainful employment (J20-1). Coupled with this were independent stressors including the appellant's unhappy family background. Of course, the respondent took his victim as he found her, but he is not responsible in law for unhappiness, mental distress or unemployment not caused or materially contributed to by his negligence. The matters mentioned in this paragraph do not go to the appellant's credibility, but they indicate the difficult task confronting Judge Cooper and emphasise the caution which should attend appellate review of a multifactorial decision stemming in large part from advantages enjoyed only by the trial judge. 41 I am unpersuaded that the trial judge erred in his critical findings as to credibility or as to the quantum of compensatory damages he awarded as stemming from the respondent's negligence. It bears repeating that the findings and award made in the appellant's favour amount to acceptance of her claim of significant adjustment disorder, albeit not of the intensity and likely duration asserted by the appellant. 42 I would reject the ground of appeal that asserts that the judge failed to provide adequate reasons. 43 I am not without sympathy for the appellant's position, feeling some doubts about the smallness of the general damages awarded. However, I am constrained as an appellate judge from simply substituting my own views, all the more so because of the obvious advantage that this most experienced District Court judge enjoyed. 44 As indicated, the claim for exemplary, aggravated and punitive damages was rejected (J29-32). 45 The findings in relation to economic loss obviously stem from a combination of the admitted history of unemployment pre-tort and the judge's assessment of the true impact of the tort as reflected in his award for general damages. 46 The appellant submitted that the judge committed an error of principle in failing to find that the Parliament House assault was a causally independent subsequent event (cf Baker v Willoughby [1970] AC 467). In my view the judge was not required to do so, either in law or on the facts. The case was fought at trial on the issue that the appellant had exaggerated the symptoms stemming from the respondent's negligence and, in doing so, had suppressed and underplayed those stemming from the later incident at Parliament House. She always regarded the latter event as tortious and the instant trial seems to have proceeded on that basis. The judge was entitled to discount such loss as stemmed from the latter incident in circumstances where it was open to conclude on the evidence that her pre-existing tort-induced condition did not itself cause or contribute to the totality of the subsequent suffering. The judge was not obliged to express himself in mathematical terms. A fortiori where the case at trial was probably not fought on the basis that the Parliament House incident exacerbated a pre-existing agoraphobia stemming from the respondent's tort. 47 In my view the appeal should be dismissed with costs. 48 BARR J: I agree with Mason P. 49 McCLELLAN J: I agree with Mason P. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.