ZAVITSANOU v McDONALDS AUSTRALIA LTD [2004] NSWCA 10

New South Wales Court of Appeal

CITATION : ZAVITSANOU v McDONALDS AUSTRALIA LTD [2004] NSWCA 10 HEARING DATE(S) : 5 February 2004 JUDGMENT DATE : 5 February 2004

JUDGMENT OF : Sheller JA at 1; Beazley JA at 15; Tobias JA at 16 DECISION : Appeal dismissed with costs.

CATCHWORDS : PERSONAL INJURY CLAIM - psychiatric illness - inconsistent medical evidence - causation LEGISLATION CITED : N/A CASES CITED : Tame v New South Wales (2002) 211 CLR 317 PARTIES : Marina Zavitsanou - Appellant McDonalds Australia Ltd - Respondent FILE NUMBER(S) : CA 40799/02 COUNSEL : D E Baran - Appellant I G Harrison SC - Respondent SOLICITORS : G H Healey & Co - Appellant Riley Gray-Spencer - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 6587/00 FILE NUMBER(S) : LOWER COURT Woods ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40799/02 DC 6587/00

SHELLER JA BEAZLEY JA TOBIAS JA

Thursday, 5 February 2004 ZAVITSANOU v McDONALDS AUSTRALIA LTD Judgment 1 SHELLER JA: The plaintiff, Marina Zavitsanou, appeals from a judgment of his Honour Judge Woods DCJ on 15 August 2002, which dismissed her claim to recover damages from the defendant, McDonalds Australia Limited. 2 On 23 August 1997 the plaintiff went to a McDonald's restaurant at Eastgardens and bought a hamburger. When she sat down to eat the hamburger, she observed a blade, which was variously described as a knife blade or a razor blade, in between the wrapping of the hamburger and the hamburger itself. She noticed this before she began to eat any of the hamburger. She claimed to have suffered psychiatric injury as a result. Woods DCJ rejected this claim. 3 It should be said that McDonalds acknowledged that this incident involved a breach of its duty of care to the plaintiff. The question before the Court was whether or not as a consequence of that incident the plaintiff suffered a psychiatric illness, or as it was put, that that incident contributed to psychiatric illness from which she suffered. In broad terms, it can be accepted that the plaintiff was at a later stage suffering from some sort or degree of mental illness. 4 In his reasons for judgment, the trial Judge set out the plaintiff's family background and also her condition of health at various times, going back to 1993, when his Honour said that her health deteriorated as a result of a blood disorder which caused her to leave her then job and apply for a disability pension. In respect of that disorder, she was under the care of Professor Penny from 1994 until 1997. 5 In the course of his reasons for judgment, the trial Judge referred to medical evidence which had been put before him in the form of reports by several doctors. No doctor was called to give oral evidence to the court. 6 As has been said many times in this Court, on occasions with a degree of disapproval, this is the practice in dealing with personal injury cases in the District Court. The result was that, in determining the question of causation, the trial Judge was faced with the task of resolving any inconsistency between the medical reports. Indeed, in this case, it was quite apparent that there was inconsistency, particularly in a number of reports prepared by Dr Roxanas which went into evidence. Notably in that regard, Dr Roxanas had reported on 9 September 1999 that the plaintiff suffered panic disorder with agoraphobia. The cause of this condition the doctor related to a history which went back to the plaintiff's childhood, to an unsettled marriage and to a previous medical history which included TB, purpura and a hysterectomy. 7 At a later date, after several reports which were not inconsistent with this September 1999 report, on 23 May 2000, Dr Roxanas again diagnosed panic disorder with agoraphobia but related it, in part at least, to the history given to the doctor about the McDonalds incident. In other respects, there was also inconsistency in the medical evidence. 8 Of course, it was open to the plaintiff, faced with these inconsistencies in medical evidence, to obtain further reports by, for example, Dr Roxanas explaining how this came about and stating again what the diagnosis was and what the doctor said the cause of it was. This did not happen, nor as I have said, was any doctor called to explain to the trial Judge these inconsistencies. 9 After summarising the evidence, his Honour referred to the law as it was understood at the time that the decision was given. In that regard, he referred particularly to the decision of this Court in Morgan v Tame (2000) . At the time the decision was given, the High Court's decision in Tame v New South Wales (2002) 211 CLR 317 had not been handed down. Although in that decision the High Court upheld the decision of this Court, views were expressed about the need to prove what used to be called nervous shock in psychiatric illness cases and about the significance or relevance of what used to be described as a reasonable degree of fortitude. To that extent, in approaching the matter, the trial judge was at a disadvantage. It was urged upon us by Mr Baran, who put the argument on behalf of the plaintiff with his usual competence and force, that there was an inevitable error of law in the way the trial judge had approached the case. However, in the conclusion of his judgment, the trial Judge said "I find that any state of anxiety or panic attacks suffered by the plaintiff do not relate to the incident at the McDonalds restaurant but are related to her general medical history as well as what appear to be feelings of insecurity following from her divorce and the difficulties with her son and then more recently to the fact that her son has left home and her isolation, which seems to have necessitated a continual recourse to contact with her former husband." 10 Quite clearly from reading the judgment, his Honour's ultimate conclusion turned upon that finding. His Honour added other matters about questions of shock condition and so on, but that finding, on my reading of the judgment, was central to the ultimate conclusion that the trial Judge reached. 11 Mr Baran urged upon us that his Honour had overlooked that it would be sufficient from a causation point of view to show that the McDonalds incident had contributed to the psychiatric illness from which the plaintiff suffered. However, I am not persuaded that his Honour did overlook this. He used the very broad expression "do not relate" which to my mind embraces contribution as part of the lack of causal connection. 12 In light of the medical evidence to which I have referred, it was clearly open to his Honour to reach the conclusion that he did on causation. It is quite true that there was other evidence, to which Mr Baran particularly made reference, which could have supported a contrary conclusion on causation but in this Court the matter was not for retrial. In order to succeed, the appellant has to demonstrate that on the evidence it was not open to the trial Judge to reach the conclusion on causation that he did. In my mind, the appellant is unable to do this. 13 I am satisfied that it was open to the trial Judge to make the finding on causation that he did, that there was no error of law in the way that the trial Judge approached the question of causation and that to the extent that the trial Judge applied Morgan v Tame in this Court, without the benefit of the decision of the High Court, that did not affect the validity of the ultimate conclusion that he reached. 14 Accordingly, in my opinion, this appeal should be dismissed with costs. 15 BEAZLEY JA: I agree. 16 TOBIAS JA: I also agree. 17 SHELLER JA: The order of the Court will therefore be as I have announced it.