Adamo v Nemet No. Scciv-01-273

ADAMO v NEMET
[2001] SASC 281
Full Court: Doyle CJ, Perry and Bleby J

DOYLE CJ Ms Adamo was injured in a motor vehicle accident on 6 December 1998. She was a passenger in the front seat of a motor car when the defendant drove into the rear of the motor car. The Judge described the impact as a major impact.
Ms Adamo’s claim for damages for personal injury was heard by a Judge of the District Court.
The Judge formed an adverse view of Ms Adamo. He found that she had concealed from doctors whom she consulted the fact that she had had problems with her neck, back and shoulder before the accident. The Judge found that parts of her evidence about her medical history were not true. He was not prepared to act on her evidence about the extent of her pain and disability at the time of trial. He awarded damages on the basis that the accident had aggravated symptoms attributable to a condition that existed before the accident, and that by the time of the hearing she was no worse off than she would have been had the accident not occurred.
Ms Adamo appeals against the assessment of damages, and the findings that underpin it.
The evidence about Ms Adamo’s condition
What follows is an outline only. In particular, I have not dealt in detail with Ms Adamo’s complaints about her condition.
Ms Adamo was 33 years old at trial. She was not married. In March 1999 she and her sister bought a house. The commitment that this entailed, coupled with her good work record, suggested that she would want to work if she could. In October 1994, about 4 years before the accident, she began working for Cheap as Chips as a shop assistant. The work was described by the Judge as “fairly heavy”. In July 1997 she became an assistant manager, and worked in that capacity until the time of the accident. The work involved quite a lot of lifting of stock and reaching overhead.
In her evidence-in-chief Ms Adamo said that she had no difficulty carrying out her work. In particular, she said that before the accident she had no problems with, or symptoms from, any parts of the body that were injured in the accident, namely her back and shoulders.
The accident was on a Saturday. Ms Adamo felt some soreness in her neck and at the top of her shoulders, but did not seek medical treatment. She carried on as normal over the weekend. On the Monday, she found it difficult to drive to work. She had trouble turning because her back hurt. She worked that day with difficulty. She went to work on the Tuesday, but her neck and back pain got worse, and she went home at about 11 am.
She consulted her general practitioner, Dr Neroni. She had consulted him before. He arranged x-rays. He referred her to Dr Meegan, an occupational physician, and to a firm of physiotherapists called “Roberts Physiotherapy”. Ms Adamo was complaining of neck and back pain initially. A report from Dr Meegan of 11 January 1999 states that Ms Adamo told him she experienced neck pain immediately, then over a couple of days thoracic and low back pain, the low back pain settled after about a week but the neck and thoracic pain were on-going. She complained of mid thoracic pain, particularly at the T6 and T8 level. X-rays excluded a suspected crush fracture of those vertebrae, but disclosed underlying Scheuermann’s disease at those levels, which Dr Meegan thought had been aggravated by the accident. Ms Adamo was also complaining of neck or cervical pain. The complaints of thoracic and neck pain continued in subsequent months.
In the report of 11 January 1999 Dr Meegan expressed the opinion that Ms Adamo was suffering from cervical soft tissue injury, and aggravation of Scheuermann’s disease at the T6 and T8 level. He expected her symptoms to improve over 6 to 12 weeks, but noted that in some cases symptoms after motor vehicle accidents could persist for up to 6 months and in some cases for a year or two. However, he was hopeful that she would settle quite well and return to work in the near future.
Scheuermann’s disease is a developmental abnormality, and not truly a disease. The evidence before the Judge was that it was a condition that could exist without causing any symptoms. However, according to Dr Kelly, a specialist in occupational medicine called by the defendant, it was a condition that could be aggravated, and become painful, as a result of fairly heavy manual work. Dr Kelly said that once this occurred it was likely that the symptoms would recur if the aggravating influence, such as heavy work, were to be repeated.
In January 1999 Ms Adamo complained to Dr Meegan for the first time of pain in the right shoulder. I mention this here because, in due course, the Judge concluded that that pain was not attributable to the accident, relying on the fact that the symptoms did not occur until some weeks after the accident.
Ms Adamo continued to see Dr Meegan and physiotherapists employed by Roberts Physiotherapy. There was some variation in her symptoms, but over time the low back pain improved although the neck and thoracic and shoulder pain continued.
Then in March 1999 Ms Adamo purchased a house, as I have already mentioned. According to the Judge she had some difficulty meeting her commitments.
In late April 1999 Ms Adamo returned to work at Cheap as Chips for 4 hours a day on restricted duties. She had to avoid lifting heavy objects, and working overhead. Her hours soon increased to 8½ hours a day, but she was still on restricted duties.
In October 1999 Ms Adamo’s employment by Cheap as Chips was terminated. Her employer was unwilling to continue her employment while she remained on restricted duties. Ms Adamo was upset, and had some treatment for depression. She obtained employment from 21 January 2000 at a shop selling tobacco products. She still had to handle stock, but the stock was not heavy. At trial she was managing this employment with some difficulty, but according to the Judge her employment was secure.
The hearing
The damages claim came on for hearing in December 2000.
As best as I can tell, Ms Adamo’s case appears to have been that the accident caused an injury to her right shoulder, and converted an asymptomatic condition of Scheuermann’s disease into one that was causing pain in the thoracic spine that amounted to a significant problem, was likely to continue, and was likely to limit her earning capacity. My impression is that her other complaints were said to be attributable to the effects of soft tissue injury to the cervical spine in particular. The picture in relation to the shoulder injury, and whether it was continuing during 2000, is unclear. However, as this was not a significant issue on appeal, I leave it at that.
When the trial began, it appears that the main issue was whether the claimed tendonitis of the right shoulder was caused by the accident. Mr Crocker, counsel for the respondent, told us that when the case was opened the trial Judge was told that Ms Adamo’s general practitioner might or might not be called, and there was no suggestion of calling any physiotherapist whom she had consulted before the accident. For reasons that are not clear, Dr Neroni had refused to provide a copy of his notes to either side. There was apparently some proposal by the defendant’s solicitors to seek an order for third party discovery, but in the end the solicitors for Ms Adamo subpoenaed Dr Neroni and his notes, and the notes from Roberts Physiotherapy.
Significantly, these notes arrived while Ms Adamo was being examined in chief. I repeat that in her evidence-in-chief she said that she had had no problems with her neck or shoulders or spine before the accident.
The cross-examination of Ms Adamo began shortly after the notes had arrived, and continued the following day. The notes showed that in September 1995 Ms Adamo had consulted Dr Neroni and told him that she had “a long history of upper neck pain radiating to both shoulders and mid scapula area”. He noted that x-rays had been taken of her cervical spine in January 1995, at the instance of another doctor. He saw her again 2 days later, and referred her to Roberts Physiotherapy for treatment for her neck. In evidence Dr Neroni said that he heard nothing further, and assumed the complaint had resolved. The notes from Roberts Physiotherapy showed that she consulted a physiotherapist employed by that firm on 15 September 1995, complaining of pain in the neck radiating to shoulders, intermittent headaches and feeling dizzy. The complaint was of pain getting worse as the day wore on at work. The notes record that Ms Adamo said the problems had got worse since she started work at Cheap as Chips. Ms Harris considered that the cause of the complaint was a posture problem, and gave Ms Adamo some posture advice. Ms Adamo returned to Roberts Physiotherapy on 5 June 1996 and saw another physiotherapist. She complained of a stiff and sore neck with greater symptoms on the right side than on the left. She also complained of occasional backache. Ms Adamo told the physiotherapist the problem began about 12 months before, and had been gradually worsening at work with bending and lifting heavy items. This material came from notes of physiotherapists who were not called as witnesses. Ms Adamo received more physiotherapy treatment on 11 June 1996.
Dr Neroni’s notes were supplemented by his oral evidence. The notes showed that on 11 August 1998 the plaintiff consulted Dr Neroni about feelings of dizziness and lethargy, but again on that occasion told him that she was suffering from “upper and mid thoracic pain secondary to lifting at work”. She was tender over the mid thoracic spine. On 10 November 1998 she told Dr Neroni that she had left shoulder pain and stiffness, made worse by lifting boxes at work. She had tenderness of the cervical spine. He gave her a certificate for two days off work and for two days on light duties.
The accident was on 6 December 1998.
Other doctors who treated Ms Adamo, including Dr Meegan, had not been given this history of complaints of pain in the neck, thoracic spine and shoulders. Not surprisingly this led to the somewhat unsatisfactory situation of significant new material being put to the doctors when they were in the witness box. As I have already said, in her evidence-in-chief Ms Adamo gave no hint of this history. She was cross-examined about the history disclosed by the notes. The cross-examination was at some length. Broadly, Ms Adamo said she had no memory of these complaints. She was pressed several times on the issue, but maintained that she could not remember, or gave very vague answers. I have read the relevant cross-examination, and I must say that the answers do not read well.
A particular matter on which she was questioned was the fact that in particulars provided pursuant to r 46.15 of the District Court Rules, and sworn on 29 November 1999, Ms Adamo had said in answer to a question about prior injuries that in September 1995 and June 1996 she attended physiotherapy “three times for posture correction”. She said that this is the information that Roberts Physiotherapy gave to her when she checked with them. The answer was true, but the answer concealed the fact that carrying out her work was apparently causing significant pain in the thoracic and cervical region, although not enough to prevent her maintaining her employment. The omission of any reference to Dr Neroni was also significant. She was cross-examined about how it was that in November 1999 she was able to give that answer, but at trial had no memory of any of the relevant appointments, or only the vaguest of memories. She had no satisfactory answer for this.
As a result of the notes being brought to Court, Ms Adamo’s credibility became a significant issue.
The Judge’s findings
The Judge found the answer given in the particulars was a half truth. It did not reveal that the problem for which she received treatment arose from pain in the neck, back and shoulder, related to her employment. The Judge was not prepared to accept that Ms Adamo had some memory of these visits to the physiotherapist in November 1999, but virtually no memory in December 2000. The Judge said:
“I find her not to have been truthful in saying that she could not remember anything about these visits to Dr Neroni and Roberts Physiotherapy. Her pretended inability to recollect anything about them was an unsophisticated and unconvincing stratagem to avoid having to answer questions about them and to have to make concessions about her prior neck and shoulder symptoms which she realised would be adverse to her claim.”
I have already mentioned that none of this history was given to Dr Meegan, although he had asked her questions that should have elicited the information. The Judge accepted that Ms Adamo would not have been able to give Dr Meegan a detailed history, but did not accept that she had genuinely forgotten all about the visits and the symptoms that led to them. The Judge said:
“Again it is likely that she was intentionally misleading Dr Meegan in the hope of increasing the damages which she would recover.”
On the basis of the evidence about events before the accident, the Judge found:
“........ there is no doubt that the plaintiff had significant neck and shoulder problems before the accident. This contradicts the plaintiff’s evidence-in-chief to the contrary. I find that she intentionally sought to deceive the doctors and the court about these matters.”
This led the Judge to conclude that on other topics, and presumably in particular her evidence about her condition at the time of trial, Ms Adamo was not “a credible or reliable witness”.
This in turn led the Judge to his central findings. He found that the tendonitis of the right shoulder was not caused by the accident, mainly because the first complaint of a shoulder problem was not made until a time inconsistent with the problem being attributable to the accident. I gather that this was more or less conceded at trial, and the issue was not pursued on appeal.
The Judge found that the request for x-rays in January 1995, and complaints of pain in the cervical and thoracic spine in September 1995 and June 1996, were the result of Scheuermann’s disease causing pain and disability due to the demands of Ms Adamo’s work. He found that this problem began about the time Ms Adamo started work at Cheap as Chips in January 1995. The Judge found that the statement by Ms Adamo to Dr Neroni in September 1995 that she had a long history of upper neck pain radiating to both shoulders, and the similar statement to the physiotherapist in 1996 established:
“...... the symptoms of the Scheuermann’s disease were long standing and significant.”
He said:
“I conclude that for several years prior to the accident she had had significant intermittent symptoms of pain in her cervical and thoracic spine radiating into both shoulder girdles as a result of her work making her Scheuermann’s disease symptomatic.”
The Judge was not prepared to accept Ms Adamo’s evidence about her pain and disability at trial. He did accept that the accident caused a major temporary aggravation of her Scheuermann’s disease, with significant symptoms for some time. He also accepted that she suffered soft tissue injuries to her neck, shoulders and lower back. But he did not accept her evidence about the duration of the disabilities, and thought that she was exaggerating. The Judge found that at some point in 1999 the aggravation ceased, and thereafter Ms Adamo’s condition was no worse than it would have been if there had been no accident.
The Judge made this finding on the basis of evidence from Dr Kelly. Dr Kelly said that usually an aggravation of Scheuermann’s disease would settle after about 6 months, and he thought that the soft tissue injury should also settle in that time. Not being prepared to accept Ms Adamo’s evidence that her symptoms continued much longer than this, the Judge acted on Dr Kelly’s evidence to reach the conclusion just referred to.
In relation to Dr Meegan, the Judge noted that he had agreed that the new information from Dr Neroni’s notes and the physiotherapy notes considerably clouded the position. Dr Meegan had been inclined to attribute the plaintiff’s problems to the accident, but agreed that the new information made it more difficult to so conclude.
As to the complaint of depression, the Judge found that Ms Adamo was only moderately depressed in October 1999, but found that the depression was attributable to the symptoms of Scheuermann’s disease “after about the end of May 1999”. I take this to mean that the depression was attributable to the on‑going condition, after the aggravation from the accident had settled. I say that because immediately after the finding just referred to, the Judge said:
“Accordingly, the plaintiff has no claim for damages in respect of it [the depression].”
The Judge made a modest award of damages, consistent with his findings on the facts.
Issues on appeal
Mr Livesey, counsel for Ms Adamo, attacked the finding that Ms Adamo had misled Dr Meegan, and other doctors, and had attempted to mislead the Court. He attacked the finding that the complaints to Dr Neroni and to the physiotherapists in 1995, 1996 and 1998 were indicative of pain and disability attributable to Scheuermann’s disease. Finally, he submitted that the award of damages was too low in any event.
The finding that Ms Adamo misled the doctors and attempted to mislead the Court
Mr Livesey pointed to a number of pertinent matters. Ms Adamo appeared to like her work and to need employment to meet her commitments. She had a good work record. This was not a case in which doctors had been suggesting that her symptoms were fabricated, or did not accord with their findings, until the issue of concealment of relevant history arose. Ms Adamo had worked steadily before the accident. It was not a case of concealing significant periods off work. He pointed to the fact that in evidence Dr Neroni described Ms Adamo’s condition before the accident as relatively minor, intermittent, and not needing significant treatments. That made it more likely that she might have forgotten about the relevant history. Ms Adamo’s solicitors had subpoenaed the notes and Dr Neroni, and it would be surprising if Ms Adamo would conceal the history knowing that. However, we were not referred to any evidence to the effect that Ms Adamo knew this material was to be produced at court.
I agree that each of these was a matter to be taken into account before making the finding that the Judge made. But there is no reason to think that the Judge overlooked these matters. It would have been better if, before making the finding, the Judge had specifically referred to these matters, but as I have said, I do not consider there is any reason to think that the Judge would have overlooked them. Nor are these matters which contradict the Judge’s findings. They are merely matters supporting a suggestion that the plaintiff would not lie.
Mr Livesey submitted that it was not necessary for the Judge to make a finding that Ms Adamo deliberately misled the doctors and the court, and that accordingly that finding should not have been made. He called in aid an observation by Deane J in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 271 to the effect that a finding that a witness has deliberately given false evidence should not be made unless it was “truly necessary for the purpose of disposing of the particular case”. The observation of Deane J was made in a somewhat different context, but even so is a sound general proposition. But in the present case Ms Adamo’s reliability, in the sense of truthfulness, did become an issue, because in the light of the undisclosed history there was reason to doubt the veracity of her evidence about her history and about her condition at trial. It was not just a question of whether her evidence about her condition before the accident was reliable. Her veracity was in issue.
Mr Livesey submitted that the finding was unfair, because Ms Adamo had not fairly been put on notice that her truthfulness was being challenged. I have looked at the passages of evidence to which we were referred. I consider that it should have been quite clear to Ms Adamo and her advisers that her reliability and her truthfulness were under scrutiny once the medical and physiotherapy notes were brought to court.

I have given careful thought to the attack on the Judge’s finding. This case is not like Nash v Burton [2001] SASC 94, where a finding that the plaintiff had lied was made against a background of evidence about depression that might explain much or most of the things relied on by the Judge as a basis for the finding, yet the Judge had not explained how he dealt with the fact that the plaintiff’s abnormal reaction to her injuries might be a result of a depressive condition and aspects of her personality.
In her evidence-in-chief Ms Adamo painted a picture of her health before the motor vehicle accident that was startlingly different from what emerged from Dr Neroni and from the physiotherapy notes. It is hard to believe that Ms Adamo had no memory of her visits to Dr Neroni and to the physiotherapist about complaints of neck and back pain, which she herself attributed to her work. And the answers that she gave when tested about these matters read quite unconvincingly. Of course, the written transcript gives a limited picture, but I get the impression from the answers that they are given by someone who is being evasive and deliberately vague. And to this one must add that the Judge was entitled to rely on the impression that Ms Adamo made when giving evidence before him.
There is force in what Mr Livesey says, but I am not able to say that the Judge was not entitled to reach the conclusion that he did.
It follows that the Judge was entitled to treat Ms Adamo’s evidence about her condition at trial as unreliable and as deliberately false. He was entitled to find that she was exaggerating her symptoms, and that her evidence about persisting pain and disability should not be accepted.
The findings about Ms Adamo’s condition
Dr Neroni was of the opinion that the symptoms related to him before the accident were not consistent with them being attributable to Scheuermann’s disease. The reason for this opinion seems to be that the complaints of neck pain were not consistent with Scheuermann’s disease, although the complaints of thoracic pain were. Bearing in mind that qualification, it is not at all clear to me that Dr Neroni intended to rule out the possibility that the complaints of pain in the thoracic spine were attributable to Scheuermann’s disease. Dr Neroni agreed that the work Ms Adamo was doing could result in Scheuermann’s disease producing symptoms, and he agreed in particular that the complaint she made of pain in the thoracic area could be attributable to Scheuermann’s disease but said it could also be attributable to muscular sprain or a ligament strain.
Dr Meegan agreed that the complaints before the accident of thoracic pain might be attributable to Scheuermann’s disease, but made the point that after the accident the condition was clearly worse. That was really common ground, and is consistent with the Judge’s finding. Dr Meegan himself, at one stage, referred to the accident as “an aggravation of a pre-existing problem, in so far as the cervical and thoracic spine go”. An earlier answer suggested that at trial Ms Adamo was in much the same position as she would have been without the motor vehicle accident, by which I think he means subject to a temporary aggravation of the symptoms. This evidence was given after the new information that emerged at trial was put to Dr Meegan. My reading of the cross-examination of Dr Meegan is that he agreed, in the light of the new information, that it was possible by mid-1999 her condition was no worse than it was before the accident, and that the difference was that she was more readily complaining of difficulty than she had before. On the other hand, he said there was a possibility that the accident had produced increased pain and disability. Understandably, Dr Meegan emphasised the difficulty of expressing opinions on the run as it were, from the witness box, and in the light of new information.
In a report of 28 February 2000, written before the further information came to light, Dr Kelly had expressed the opinion that Ms Adamo had suffered:
“A soft tissue injury to the cervical spine and shoulder girdle region on the right; aggravation of pre-existing Scheuermann’s in the thoracic region; and a muscular sprain in the lumbar region which has resolved.”
Mr Livesey pointed to the reference to a soft tissue injury to the cervical spine, and made the point that there is no suggestion in this evidence that Scheuermann’s disease gives rise to symptoms of the cervical spine, and on the evidence from Dr Neroni, pain of the cervical spine was one of the complaints made before the accident.
It was the point about the cervical spine that was the basis of Mr Livesey’s attack on the Judge’s finding that the complaints of pain in the cervical and thoracic spine before the accident were attributable to Scheuermann’s disease. On the same basis he attacked the finding that after about 6 months Ms Adamo’s neck and shoulder problems were those that she would have encountered in any event.
However, it seems to me that the general effect of Dr Kelly’s evidence is consistent with the Judge’s findings. I do not suggest that the picture is completely clear. The course that the trial followed made things difficult. But my impression is that Dr Kelly’s view was that the overall picture prior to the accident was consistent with symptoms attributable to Scheuermann’s disease. The following answer, late in his cross-examination, seems to summarise the position. He said:
“I guess the comment I would make is if the motor vehicle accident presented some significant impact, then one would expect to find some positive examination findings and some perhaps positive investigations. We know that Ms Adamo had some Scheuermann’s disease prior to the motor vehicle accident and I suspect from reading the various notes that there were intermittent aggravations of that condition. The motor vehicle accident presumably has then also aggravated, but it’s also quite relevant that the bone scan after the motor vehicle accident - I am not sure of the exact date of that - was normal. So it would tend to support, yes, there has been an aggravation but it would raise the question of how severe that aggravation was.”
In that passage he does not refer specifically to the complaints of pain from the cervical spine, but nor does he treat the complaints before the accident as inconsistent with pain attributable to Scheuermann’s disease.
As I said, Mr Livesey submits that Scheuermann’s disease might cause pain of the thoracic spine, but not pain from the neck, and not the other complaints made by Ms Adamo before the accident. He submits, relying on Dr Neroni in particular, that her condition before the accident was not consistent with a finding that Scheuermann’s disease was then causing pain and disability.
There are several answers to this submission. The first I have already indicated. My impression from the evidence is that Scheuermann’s disease would be expected to produce symptoms predominantly at the levels T6-T8, but not necessarily only there. The evidence does not suggest a precise finding of the kind which Mr Livesey suggests. Secondly, an obvious possibility is that the symptoms attributable to Scheuermann’s disease were combined with, or contributing to, symptoms attributable to some other problem. Thirdly, whatever the explanation for Ms Adamo’s condition before the accident, the work she was doing was causing back and neck pain, not unlike in kind to the back and neck pain experienced after the accident. It was common ground that there was more pain after the accident. That being so, it was a real question whether, by the time of trial, she was any worse off than she was before the accident, and that raised a real issue as to whether the effects of the accident had produced a new disability, permanently worsened an existing condition, or had temporarily worsened an existing problem but resolved, leaving her as she was before the accident. My firm impression from the evidence is that generally the medical witnesses agreed that there was a sufficient similarity between the history before and after the accident for these to be real issues. A fourth answer to Mr Livesey’s submission is that the evidence was not as clear as one would wish, but this was due to Ms Adamo’s failure, whatever the reason, to tell the doctors about what seems to have been an obviously relevant history of complaints.
In the end the issue is whether Mr Livesey has shown that the Judge’s finding is unsound.
The finding is that Ms Adamo was suffering from pain and restriction of the spine before the accident attributable to Scheuermann’s disease; that the accident would have aggravated that condition; that the accident would have caused a soft tissue injury to the cervical and lumbar spine; that the aggravation of the Scheuermann’s disease and the soft tissue injury would usually be expected to settle within about 6 months; that Ms Adamo’s evidence at trial that she was suffering from pain and disability at a much greater level than before the accident was not reliable and could not safely be acted upon; that in the circumstances the appropriate conclusion was that her complaints at trial were not due to the accident, but to Scheuermann’s disease, and would have been the same even if there had been no accident.
Having regard to the evidence before the Judge, I am not satisfied that the Judge erred. Each of these findings was open on the evidence. Scheuermann’s disease may not fully explain the complaints made before the accident, and in particular the complaints relating to the cervical spine and shoulders, but the medical evidence does not rule out the possibility of a connection. In any event, there is a general similarity about the complaints before the accident and after the accident, whatever the cause may be, and putting aside the issue of the severity of the pain being experienced. It was open to the Judge to find that by trial Ms Adamo was no worse off than before the accident, if he rejected her evidence about her condition at trial. In the end Ms Adamo had to satisfy the Judge either that the accident had produced a new condition, or a permanent worsening of her existing condition, or that it had caused a condition which was asymptomic to become symptomic. If her evidence at trial was not accepted, it seems to me that in the light of the medical evidence the finding that the Judge made was open to him.
For those reasons I would not interfere.
Damages
On the basis of the findings made, the Judge did not err in the assessment of damages.
The Judge found that but for the accident it was likely that Ms Adamo would have continued in her employment with Cheap as Chips. Mr Livesey argued that this finding attracted an entitlement to damages for loss of earning capacity greater than the $8,000 that the Judge awarded for earnings lost to May 1999. However, on the Judge’s finding the dismissal in October 1999 was unrelated to the accident. It must be treated as due either to Ms Adamo’s pre-existing condition, and the fact that she was now complaining more about it, or to complaints unrelated to the accident. There was no error by the Judge. Likewise, the refusal to award damages for depression diagnosed in October 1999 was correct. On the findings that depression was not attributable to the accident, but to the continuation of the pre-existing condition, and symptoms attributable to that. On the findings the aggravation of the condition had resolved by May 1999, and a finding that depression in October was not caused by the accident was open to the Judge.
Costs
Interim payments of $15,000 had been made by the defendant to Ms Adamo. This amount exceeded the damages awarded by almost $2,000. The Judge ordered that there be judgment on the claim for the defendant, with no order as to the over-payment. There was no opposition to this. I mention this because it may be Ms Adamo was entitled to a judgment for the amount of damages as assessed, it being noted that the defendant was entitled to set off the interim payments against that amount.
On 7 June 2000 the defendant had filed an offer to consent to judgment for $42,000, in addition to the payments made.
After hearing submissions, the Judge ordered that Ms Adamo pay the defendant his costs of action as between party and party, subject to one qualification that can be ignored.
Rule 40.05 of the District Court Rules provides that if a plaintiff does not better an offer to consent to judgment, then unless the Court “thinks proper to order otherwise” the plaintiff is to recover costs until 14 days after service of the offer, and the defendant is to recover costs thereafter. This rule provides no support for the order made by the Judge.
Section 42(2) of the District Court Act 1991, in combination with r 101.02A of the District Court Rules provides that if an action might have been brought in the Magistrates Court, as this action might have been, and the plaintiff recovers judgment for less than $30,000, no order for costs in favour of the plaintiff is to be made unless the Court is of the opinion that it is just to do so. This provision also provides no support for the order made.
In the short oral reasons that the Judge gave for the order as to costs, he said that the defendant was prima facie entitled to an order for costs under r 101.02A. In my respectful opinion in that respect the Judge erred. Section 42(2), in conjunction with the rule, deprived the plaintiff of any entitlement to costs unless the Court ordered otherwise but provided no basis for an order for costs against the plaintiff.
However, as the Judge also said, the fact that judgment was entered for the defendant supported the order made, on the basis that costs usually follow the event. But, as to that, it may be that Ms Adamo was entitled to a judgment in her favour for the damages assessed, as I mentioned earlier. To my mind the issue is whether the fact that the damages assessed were less than the interim payments made was a basis for making the order that the Judge made. Of the interim payments, $10,000 was paid before proceedings were issued, and the remaining $5,000 about 2 months after the proceedings were issued.
Having regard to the broad discretion which a court has as to costs of an action, I am not able to say that the Judge was wrong in making the order that he made. A factor against the making of the order is that when the proceedings were issued Ms Adamo had a claim for an amount which, as ultimately assessed, would have entitled her to a small judgment. It was the payment of the additional $5,000, about 2 months after the proceedings were issued, that produced the result that the damages later assessed were less than the amount of the interim payments. On the other hand, looking at things broadly, from very early in the proceedings, the claim had become one for an amount less than the amount of the interim payments. I do not overlook the fact that Dr Neroni refused, for reasons that I do not fully understand, to provide his notes until they were subpoenaed, but Ms Adamo’s solicitors had means of overcoming that refusal. The course of the trial was contributed to by Ms Adamo’s failure to be open to Dr Meegan and by the evidence found to be unreliable, that she gave about her condition before the accident.
Under all the circumstances, I am not prepared to interfere with the Judge’s order.
Conclusions
For those reasons the appeal must be dismissed.
PERRY J I agree with Doyle CJ that this appeal should be dismissed. I have nothing to add to his reasons, with which I also agree.
BLEBY J I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

[2001] SASC 281

29 August 2001