BOWDEN v COLBEY - [2005] SASC 387

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
BOWDEN v COLBEY
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Gray)
7 October 2005
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES
The appellant appealed against the assessment of damages awarded to her following the trial in the District Court of her action for damages arising out of a road accident in which she suffered a whiplash injury to the neck - following the accident, she claimed that she was unable to resume her work as a registered nurse - the trial judge was not satisfied that the appellant suffered the pain and disability which she claimed - he preferred medical evidence called by the respondent to the effect that her injuries were minor and would have incapacitated her for work for a short time only - he held that a film taken over a period of time depicting the appellant in various day-to-day activities was consistent with his conclusions as to the relatively minor effects of the injury - held on appeal that there was no reason to interfere with the trial judge's findings, and the suggestion that he had placed too much emphasis on the film was not made out - observations as to the evidentiary significance of particulars of injury given in an affidavit of loss - appeal dismissed.
DCR r 46.15 and r 74A.07(2)(ba); SCR r 46A.11, referred to.
Holyoak v Ivanoff Supreme Court of South Australia, Perry J, 18 August 1995, judgment No S5213, considered.

BOWDEN v COLBEY
[2005] SASC 387
Full Court: Doyle CJ, Perry and Gray JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Perry J. The case was a difficult one. In some respects it is an unusual one. But, at the end of the day, I am not persuaded that the Judge erred. I am content to adopt the reasons given by Perry J for so deciding.
PERRY J. The appellant appeals against the judgment entered in her favour following the trial in the District Court of her action for damages for injuries sustained by her as a result of a motor vehicle accident on 13 April 1999.
Liability was admitted, and the action came on for assessment of damages only.
The trial judge assessed the appellant’s damages, including interest, in the sum of $28,452.70. After giving credit for interim payments made to the appellant totalling $14,000, judgment was entered for $14,452.70.
In her notice of appeal, the appellant complains that the assessment of damages was manifestly inadequate.
Background
The accident occurred while the appellant, then aged almost 41 years, was driving her Volkswagen motor car. She was stationary at traffic lights at an intersection when a four-wheel drive vehicle driven by the respondent collided with the rear of her car.
The respondent gave evidence that he had stopped his vehicle about a half a car length behind the Volkswagen, and when the lights changed to green he started to move off. He was distracted by his mobile phone, and momentarily took his attention off the road. When he looked up, he saw that the Volkswagen’s brake lights were on. He immediately braked but not quickly enough to avoid an impact with the rear of the Volkswagen.
His evidence was that his car was travelling at no more than 5 kilometres an hour at the time of the collision, as he had only just started moving off. He said that his car just “touched the Volkswagen’s bumper bar”.
There was no head restraint in the appellant’s car. She thought that the Volkswagen was pushed forward, but she did not know how far. Photographs tendered at the trial indicate a slight dent in the rear bumper bar of the Volkswagen.
The trial judge found that the damage to the Volkswagen was minor. He concluded:
[34]The dynamics of the accident (including the fact that the plaintiff’s vehicle was forced forward only one metre, which is what I find) were, however, such as to satisfy me that the collision itself was a low impact collision causing mild forces on the plaintiff’s upper torso.
The appellant’s evidence was that as soon as she got out of the car following the accident, her neck felt sore and aching, her head felt “heavy”, and she had a sore right wrist.
She said that the pain increased overnight. The next day she consulted a general practitioner, Dr Rodda.
Dr Rodda diagnosed a “moderately severe ligamentous neck strain, of the whiplash type”.
In a report given to the appellant’s solicitors dated 25 May 1999, Dr Rodda stated:
[The appellant] has been treated with rest and physiotherapy. It is planned that she return to work on 31.5.99. Her condition is much improved, but should resolve completely over the next 6 months. Physiotherapy will continue, less frequently, for another 1-2 months. Prognosis is for total recovery. She has been unable to work from 14.4.99 to 31.5.99. Her working capacity in the future should not be affected.
Despite that somewhat optimistic prognosis, the appellant’s evidence was that her condition, at least in the neck, did not resolve.
At the time of the accident the appellant was employed at Ashford Hospital as a registered general nurse, in the orthopaedic ward on night shift.
She first attempted to return to work in June 1999 when she was rostered on for two nights. Her evidence was that although the first night was a “fairly quiet night”, her neck got “sorer and sorer”, and that it was worse on the second night.
She said that the occupational health and safety department of the hospital told her that she was not to return to work unless she had been “cleared” by Dr Graham, an occupational physician who was a consultant to the hospital.
Dr Graham first examined the appellant towards the end of June 1999. Thereafter he saw her on a number of occasions leading up to his last examination before the trial, which was on 9 October 2003. Throughout that period Dr Graham consistently reported to the hospital that the appellant was not fit to resume the “full duties” of a registered nurse.
Apart from the two nights to which I have referred, she did not work again for Ashford.
The appellant fell pregnant in June 1999 and gave birth to a daughter on 31 March 2000.
She had previously used up her accumulated sick leave entitlement, annual leave and long service leave. In February 2000, she commenced 52 weeks maternity leave from Ashford Hospital.
In February 2001, Dr Graham reported to Ashford Hospital that the appellant was still not fit “to resume the full duties of a registered nurse … which I understand includes a requirement to lift a minimum of 22.5 kg”. In fact, no test was carried out to determine if she could lift such a weight.
Ashford Hospital terminated the appellant’s employment as of 9 April 2001.
Between May 2001 and June 2003, the appellant applied for a number of other nursing and medical positions. She did not succeed in obtaining further employment except for a few nights work at Modbury Aged Care Centre between April and May 2002, after which she informed the matron that she was unable to cope with the work, and night shifts which she worked at St Louis Nursing Home, Parkside, on 5 and 13 December 2003. She felt unable to work a further shift which was offered on 27 December, as she said that her neck was “in agony”. She later worked two more shifts at St Louis Nursing Home, before 16 February 2004, but has not worked since.
At some time, the date is not entirely clear but which may have been either in 2002 or 2003, the appellant became pregnant with a second child, but she subsequently miscarried.
The effect of the appellant’s evidence at the trial, and of her complaints to the various doctors and others who gave evidence of her condition, was that since the accident she has more or less continuously suffered pain in her neck, and that it affects most of her day-to-day activities. She claimed that the neck disability had effectively prevented her from resuming her work as a nurse.
She said in evidence that almost every physical activity which she undertakes during the day aggravates the pain in her neck and shoulders. Despite this, however, she was able to continue with most of her ordinary activities on a day-to-day basis, albeit with pain.
There was evidence that she enjoyed fishing from a boat and from rocks, and that she was involved in renovating a new home which she had bought with her partner, which she moved into a few weeks after the accident, and had also engaged in activities in the garden of the house.
None of the doctors who gave evidence at the trial were able to find any significant limitation of movement in the neck and shoulders.
The respondent tendered a film of the appellant engaged in various activities on six separate dates between 30 January 2002 and 21 September 2003.
I will refer to the film later in these reasons.
The medical evidence
The appellant called the general practitioner Dr Rodda, two occupational physicians, Dr Graham and Dr Colin Mills, and a chiropractor, Mr Christopher Slaughter. In addition, the appellant tendered a report of another general practitioner, Dr Karen Hand and two reports of Dr Adrian Munyard, an orthopaedic surgeon.
The respondent called an occupational physician, Dr Christopher Kelly, a general and orthopaedic surgeon, Dr Ross Johnson, and tendered the report of an orthopaedic surgeon, Dr Garth Fraser.
In his reasons for judgment, the trial judge canvassed the evidence of these witnesses at length. No useful purpose would be served by repeating that exercise.
It is sufficient to make some general observations.
In particular, all of the doctors consistently reported that on examination there was a virtually full range of movement in the neck. For example, Dr Graham reported that when he examined the appellant on 23 June 1999:
Examination of her neck revealed a full range of flexion, extension and rotation to the right and left but with some discomfort in the left trapezius muscle with rotation to the left. On palpation there was no stiffness but minor tenderness generally.
When he reported on her condition in August 2000, he said “On examination she moved without any apparent discomfort or difficulty”.
With minor variations, the other doctors all reported the outcome of their clinical examination of the appellant in similar terms.
Radiological examination of the plaintiff did not reveal any significant injury. For example, Dr Garth Fraser described plain x-rays of the cervical spine taken on 3 November 1999 as normal, and an MRI scan of the cervical spine on 1 June 2000 “confirms good signals at all levels”, from which he concluded that there were no established degenerative changes.
The differences between the doctors turn largely upon whether they were prepared to accept the appellant’s complaints, notwithstanding the lack of evidence of any organic cause. There were also differences between the doctors as to the conclusions which they were prepared to draw from the range of activities depicted in the film.
For example, Dr Graham said that he assumed the appellant’s presentation to be genuine.
Dr Mills said that although her complaints of pain and the severity of the complaints were in excess of what one would expect, it was a question of whether the appellant was to be believed or not, and he believed her. Notwithstanding that view, he said in evidence:
… I think the initial decision to not place her back at work by the employer was uncharitable and certainly led to us being here and I don’t think it did anything for the long term help for her neck. There are a range of activities that a sensible employer would be able to find and use her skills ..
Dr Mills also suggested that it would be useful to have an assessment by a psychologist with psychometric testing, or a psychiatrist, as her symptoms “seem greater than expected on physical grounds”.
In a report dated 22 April 2002, Dr Kelly expressed the view that “… the motor vehicle accident plays no part in Ms Bowden’s current symptoms”. He thought that the motor vehicle accident was:
“… likely to have induced a musculo-ligamentous injury to the cervical spine that should have resolved within a relatively short period after the motor vehicle accident”.
He said in evidence:
If there’s a full range of movement which is unrestricted and the patient has no discomfort with it, then it would make medical sense to suggest that any injured tissues have resolved.
He thought that the range of movement displayed in the activities shown in the film was not consistent with someone who was experiencing pain from a significant organic injury to the cervical spine.
Dr Johnson found that in the absence of any positive objective organic abnormalities, he was unable to confirm that the appellant was in any way precluded from any of her former duties by reason of the accident. He did not accept complaints of disabling pain beyond about September 1999, and considered her physically able to resume full-time nursing. He thought that in the absence of “positive objective findings” to substantiate her subjective complaints, a report from a psychiatrist might be helpful in order to explain her ongoing complaints.
In his report, Dr Fraser expressed the view that the appellant was fit for work as a registered nurse “without specific restriction”. He made the further observation:
I am somewhat perturbed that this patient has been prevented from returning to work, presumably for perceived Worker’s Compensation risk problems, rather than for any specific medical diagnosis.
The trial judge’s findings
The trial judge delivered some 72 pages of reasons, during the course of which he quoted lengthy extracts from the evidence of the medical and other witnesses.
In determining the genuineness of the plaintiff’s complaints, he stated that he considered the film important as “… it showed the plaintiff going about her day-to-day activities in what appeared to me to be a normal and pain free way”. He thought that what was depicted in the film was inconsistent with much of the appellant’s evidence and inconsistent with many of her complaints to the doctors.
Insofar as the appellant’s partner, her mother and sister gave evidence as to some aspects of her activities, the trial judge considered their evidence unconvincing.
He said that he was impressed with the evidence given by Dr Kelly and Dr Johnson and preferred it where it differed from that given by Dr Graham and Dr Mills. He described the evidence of Dr Kelly and Dr Johnson to be “… reliable, convincing, and compelling”. He concluded that it was “not probable” that the plaintiff suffered the pain and disability she had described to the doctors and in her evidence.
The trial judge went on to refer to evidence as to the circumstances in which the appellant’s employment by Ashford Hospital was terminated and her applications for other jobs.
For the reasons which he sets out in his judgment, he held that the appellant did not “fight” for her job at Ashford Hospital, because for various reasons she did not wish to resume employment with them, and further, that she did not really want some of the other jobs for which she applied.
The arguments on appeal
The arguments advanced by the appellant on the hearing of the appeal may conveniently be summarised under four headings:
That the trial judge
oerred in his findings as to the severity of the impact between the two vehicles
omisunderstood the plaintiff’s claim
ogave too much emphasis to the film
oshould have preferred the plaintiff’s doctors.
I will deal with each of those matters in turn.
The trial judge’s findings as to the force of impact
I have already referred to the evidence of the respondent as to the circumstances of the collision. The trial judge preferred his evidence to that of the appellant where there were differences. The respondent’s evidence was barely challenged in cross-examination, and no ground has been made out to disturb the trial judge’s acceptance of the respondent’s evidence.
Insofar as the respondent said that his car had only just started moving off; was travelling at no more than 5 kilometres an hour at the time of the collision; and just “touched the Volkswagen’s bumper bar”, I am unable to accept that it was wrong of the trial judge to conclude that the accident took the form of a “low impact collision”.
His further conclusion that such a collision caused “mild forces on the plaintiff’s upper torso” would seem to be a reasonable conclusion to draw, and is consistent with the opinions expressed by the doctors.
Did the trial judge misunderstand the plaintiff’s claim?
At the outset of his reasons for judgment, the trial judge quoted the particulars of the appellant’s claim which he extracted from the statement of claim annexed to the summons issued on 24 October 2001, by which the appellant instituted the proceedings. He stated that the particulars indicated the nature of the claim “as they stood at the commencement of trial”.
The trial judge referred to the following parts of the particulars of claim:
5.As a result of the negligence of the defendant the plaintiff who was aged 41 years sustained personal injuries and incurred expenses in obtaining treatment for the said personal injuries.
PARTICULARS OF THE PLAINTIFF’S INJURIES
The plaintiff at the date of the collision suffered:
(a)     A whiplash injury to the neck.
(b)     A musculo-ligamentous strain to the cervical spine.
(c)     Hyper-extension injury to the right wrist.
6.In consequence of her injuries the plaintiff has suffered and will continue to suffer:
(a)     Severe neck pain.
(b)     Headaches.
(c)     Pain across the top of the shoulder.
7.As a result of her injuries and disabilities the plaintiff:
(a)     Has not been able to return to her pre-accident employment as a registered nurse and has not been able to obtain alternative work.
(b)     Will continue to experience pain and discomfort referred to above.
(c)     Has suffered a loss of enjoyment of the amenities of life. The plaintiff is unable to partake of any activity which involves leaning forward or down. These tasks are: washing, ironing, cooking as well as looking up. Carrying shopping bags causes aggravation of the neck, even carrying a handbag on her shoulder aggravates her neck. The plaintiff also suffers pain if she is sitting at a desk writing for more than 30 minutes at a time. Moreover the plaintiff has difficulty picking up her 15 month old daughter and pushing her in a pram due to the pain of the injury. Any quick movement causes sharp pain and causes her neck to burn. The plaintiff also has difficulty sleeping in any comfort.
Mr Quick QC, who appeared for the appellant on the hearing of the appeal, contended that the particulars which the trial judge quoted in the above passage did not represent the manner in which the appellant put forward her case at the trial.
In support of that submission, he referred to what was described as the affidavit of loss sworn to by the appellant and filed in the District Court on 24 May 2002.
The affidavit of loss includes the following:
(c)Since the date of the subject accident I have suffered the following disabilities as a result of the subject accident:
(i)    7.5% residual disability to my cervical spine.
(ii)     2.5% residual disability to my left shoulder.
(iii)     Unable to perform full duties of a Registered Nurse as unable to life the minimum requirement of 22.5 kilograms.
(iv)    Neck pain is aggravated by vacuuming, reading, writing for more than 30 minutes, carrying shopping bags, pushing a pram or trolley, ironing, cooking, doing dishes, picking up my daughter, gardening, hanging the clothes on the line, crushing medication for residents and winding beds up and down.

Mr Quick pointed out that in the affidavit of loss, the appellant no longer asserted, as she had done in her statement of claim, “any quick movement causes sharp pain and causes her neck to burn”.
Mr Quick went on to suggest that, properly understood, in her evidence given at the trial, the appellant did not suggest that she suffered from more or less constant neck pain, but only that neck pain came on after physical activity.
There was discussion during the course of the hearing of the appeal as to the status of the so-called affidavit of loss.
In the District Court, there is an obligation in any cause or matter in which the plaintiff claims damages for personal injury to file and deliver particulars verified by the plaintiff on oath, in accordance with DCR r 46.15.
Documents fulfilling the same function in the case of a Supreme Court action, described in the rules specifically as an affidavit of loss, must be filed pursuant to SCR r 46A.11.
The document filed in the District Court by the appellant was in fact headed “Affidavit of Loss”, although those words do not appear in the District Court Rules, being a description peculiar to SCR r 46A.
At all events, what the appellant described as her affidavit of loss was included with the copy documents, apparently in compliance with DCR r 74A.07(2)(ba).
DCR r 46.15(6) reads:
The judge at the trial shall in accordance with the rules of evidence and otherwise may in his or her discretion admit into evidence the details or any part of the details filed pursuant to this Rule.
In this case, the trial judge did not admit into the evidence the so-called affidavit of loss. He was not asked to do so.
In those circumstances, I adhere to the view I expressed in Holyoak v Ivanoff.[1]
[1] (Unreported) 18 August 1995, judgment No S5213.
In that case, I held that particulars filed pursuant to similar rules applicable in the Magistrates Court, should properly be regarded as an extension of the pleadings. In that case, I said:[2]
The Form 22 particulars are nothing more than an extension of the statement of claim, containing itemised particulars of it. … the fact that they are sworn to does not mean that, short of the particulars being tendered, they have any evidentiary significance. Ordinarily they can only operate as pleadings, that is, assertions and not as proof of the facts asserted.
Neither do I think that they could, against objection, be tendered by a plaintiff as evidence of the truth of their contents. That would be self-serving. The plaintiff, however, could be cross-examined about them. To the extent that he denied them, they might be admissible as a previous inconsistent statement. They could always be admitted by consent and in most trials one would hope that they would be, as they would help to shorten the oral evidence in chief.
[2] Ibid at page 3.
Mr Quick said during the course of his argument on the hearing of the appeal:
… a different case was presented at trial from that which appears in the statement of claim. The different case that was presented at trial does not involve going back to the allegations in para 7(c) of the statement of claim.
The allegation, for example, “unable to partake of any activity which involves leaning forward or down”, the case presented at trial did not involve specifically that the plaintiff is unable to undertake washing, ironing and cooking as well as looking up. The case presented at trial was that she could all of those things and did all of those things and did do them on a day to day basis. The problem was that they caused pain later on, particularly if the activity was sustained.
Later during the course of argument he said:
… here is a person who is not complaining of acute pain by reason of activity. The person complains of ongoing low level pain which is aggravated after a while when pursuing repeated activities such as washing dishes, hoovering, vacuuming, clothes washing and the like.
Mr Quick moved from that submission to suggest that, viewed in that light, the full range of movement which the appellant demonstrated on examination by the various doctors and the apparently unrestricted range of movement which appears in the context of the various activities depicted in the film were not inconsistent with her case, and the trial judge was wrong in finding that there was any inconsistency.
In my view, those submissions are not made out.
In the first place, I would not read the particulars in the so-called affidavit of loss as suggesting that the appellant was there qualifying in any significant way the particulars set out in the particulars of claim.
The affidavit of loss contains nothing more than a brief, cursory description of various activities which are said to aggravate (not cause) the appellant’s neck pain. The description extends over no more than a single short paragraph. It would be reading too much into it, to make any nice comparison between it and the particulars in the statement of claim.
Furthermore, the suggestion that by the time of the trial the appellant was no longer suggesting that she had more or less constant neck pain, does not stand analysis against the statement made by her counsel, Mr Halliday, during the course of his opening before the trial judge, when he said:
… This is an unusual case of a whiplash which has not settled. It has been resistant to various modalities of treatment and significant efforts on the plaintiff’s part such that she is, on her case, unable to nurse, she is denied the capacity to engage in physical activities which involve pushing, head-down activities … on any sort of sustained basis. Her case is that many if not all forms of occupation which require sustained activities are no longer open to her.
… The pain and disability that she had has generally been unremitting … (emphasis added)
During the course of her evidence, the appellant described her sensation of pain when involved in various activities.
Part of her evidence related to occasions when she pushed her daughter in a pram:
Q.When you push the pram what would actually happen, what would you feel.
A.Well, I would get pain up my neck and I would get the burning sensation from C6 across to the shoulder.
Q.Were there occasions when you avoided pushing the pram.
A.Yes.
Q.Did you sometimes push the pram anyway, notwithstanding you were having pain.
A.Yes.
She went on to say that standing at the sink to wash dishes:
… looking down would usually give me that burning pain across the back of my neck.
Q.Would you be able to finish doing the dishes.
A.I would try, yes.
Q.Did you always finish doing the dishes.
A.Not always.
She said that “hoovering” would increase the neck pain.
She said that hanging up the washing caused a problem and that she would be trying to hold her neck straight and she would try to avoid looking up.
She said further:
Q.… has the pain that you had got better, worse or remained the same when you wash dishes over the intervening period up to now.
A.It has remained the same.
Q.And what about vacuuming.
A.It has remained the same.
Q.And washing clothes and hanging them up.
A.Still the same.
Q.In terms of your daily activities at home, vacuuming, washing dishes and washing clothes, have there been occasions when you have not done those activities because of the pain.
A.Yes.
When describing her work painting, as part of the renovation of the house into which she and her partner moved, she said that she would get a burning pain “from C6 to the left shoulder”, and when that came on she would take a break. When gardening she frequently had to stop and take a break, as the activity increased the pain in the neck.
When cross-examined, the appellant said:
Q.Is there any physical activity that does not aggravate your neck.
A.Not that I can think of.
Q.So it is the case that every physical activity that you can think of aggravates your neck. Is that right.
A.Yes.
Q.But it is also the case that there is no physical activity that you are totally prohibited from by your neck.
A.That is correct.
Q.So everything – every active thing will give you pain but it is a matter of managing that pain.
A.Yes, that’s right.
Later she said that she woke up with neck pain and she agreed that it was a matter of how much worse that got during the day. She was cross-examined:
Q.So you were always with neck pain.
A.At some – yes.
Q.And have always been since the date of the accident.
A.Yes, I’ve always had neck discomfort.
Looking at the whole of her evidence at the trial, there can be no doubt that the appellant was asserting that she had never been free of neck pain since the accident; that at times it was worse than others; and that ordinary physical activities associated with day-to-day living aggravated the pain during the course of the activity, and often caused her to stop.
Against that background, the contention simply cannot be sustained that the effect of her evidence was that she could perform all of her usual activities but the pain came on later.
I accept that witnesses may sometimes say “never” when they mean “hardly ever”, and that a witness may well say that over a number of years since the accident they have suffered pain, without meaning to suggest that it is necessarily continuous or continuously severe pain. Furthermore, I would accept that the appellant said in her evidence that from time to time the pain was not so bad as it was at other times.
But even allowing for matters of that kind, I would not accept that the case as presented differed significantly from the case as pleaded, or that the trial judge misunderstood the nature of the appellant’s case.
Did the trial judge place too much emphasis on the film?
I have viewed the film. It incorporates various segments shot on six separate dates between 30 January 2002 and 21 September 2003. The dates upon which footage were taken are 30 January 2002, 22 March 2002, 6 December 2002, 20 February 2003, 20 September 2003 and 21 September 2003.
The footage taken on the last two dates can be disregarded as there are no shots taken of the appellant on those two dates.
The footage taken on the other four dates displayed the appellant when she was engaged in a range of physical activities.
For example, on 30 January 2002 she was depicted pushing her child in a pusher.
On an occasion on the same date, she did up her hair from the back, and in the course of doing so put her hands behind her head and dropped her head slightly while she attended to her hair. As she did so, she looked left and right with apparently free movements of the neck.
Later, there were scenes in a playground when she was bending down to put the child on a see-saw, and later on a swing, and later again bent down to lift the child up and put it in the Volkswagen car.
On 22 March 2002, she was filmed stooping down to put things into the Volkswagen, finally positioning the child in the back seat, and then backing the car out of the driveway.
Later in this footage she is shown tilting her head backwards to drain a small carton of drink.
Later again she was depicted walking through a park in the company of another woman, and is shown carrying her child on her hip, afterwards putting it into the back seat of the Volkswagen.
The footage taken in December 2002 and February 2003 is largely associated with movements of the appellant in and out of the Volkswagen car, and driving it, including backing it.
In the footage in February 2003, at one stage she is shown holding an umbrella outside of the car while it was raining, and then performing what seemed to me to be an awkward body movement, including an awkward movement of the neck, settling the child in the car and then running to the front seat before driving off.
The overall impression I gained from the film, which lasted a little over an hour in all, is that throughout a range of physical movements, some involving bending, rotating her head and neck, lifting, carrying and pushing, there did not appear to be any restriction. She appeared throughout to be moving in a normal fashion. She did not hold her neck at any stage or give any other overt display of discomfort.
I did not get the impression that any of her movements were guarded in the manner in which one might expect if the appellant was experiencing pain.
The impression which I received from viewing the film coincides with the impression obtained by the trial judge. He made the following comment about the film:
[230]I considered the film important because I thought that it showed the plaintiff going about her day-to-day activities in what appeared to me to be a normal and pain free way. It is true that pain can be a subjective thing, and that pain cannot necessarily be seen on film. I viewed the film, however, in the same way as did Doctors Kelly and Johnson. I thought it showed the plaintiff going about her day-to-day activities in a way that was inconsistent with much of her evidence before me, and inconsistent with many of her complaints to most medical practitioners and to other people that she has apparently consistently made since the accident occurred. I consider that it is also significant that all doctors saw relatively few, if any, restrictions in movement when they examined the plaintiff’s neck and shoulders clinically, and that her unrestricted movements were pain-free. I also consider it significant that the plaintiff has had little active treatment or medication since late 1999. I am satisfied and find that what the plaintiff did in respect of all of her daily activities was far greater than she said in evidence.
In his evidence, Dr Kelly, after referring in detail to a number of the movements which he saw depicted on the film, and stating that there was no indication in them of restriction of movement or discomfort, concluded:
Well, I think that the film really just shows a range of activities with the cervical spine, no evidence of any particular discomfort, the ability to lift a reasonable amount for a sustained period, and it supports what I think is my clinical assessment, and that is that there is no significant or serious cervical spine pathology that would result in any incapacity for nursing duties.
Later he said:
… I think that the film I suppose supports what I felt clinically and that is that there isn’t a significantly serious organic pathological. Pain obviously is a subjective symptom but my observation is that the behaviours observed are not consistent with someone who is getting pain from a significant organic injury of the cervical spine.
Dr Johnson gave evidence of his impression of the various activities depicted in the film. He thought it was of particular significance that when the appellant backed in her vehicle, according to him:
… she rotated her neck fully to the left, looking over her left shoulder without noticeably rotating her shoulders.
He went on to say:
In my experience this is the absolutely very basic movement that neck injury patients complain of, that they cannot back their vehicles. They have to use their side mirrors or they have to rotate their whole body to look out the back. … I thought that was probably the most significant element in these films.
Dr Johnson expressed the view that the complaints of pain and limitation of movement which the appellant made in the history which she had given to him were not borne out by the film. He went to far as to suggest:
… These symptoms were refuted by the evidence we saw on the film. … If her story were consistent then she would have shown at least some evidence on the film that the activities in which she was involved were consistent with the complaints that she had made in her history. In other words, she was carrying her child, carrying it in a very awkward position for a prolonged period; she was leaning back in the Volkswagen; twisting her neck to extremes for a prolonged period; and gave no indication that she was suffering any symptoms whatsoever. So to me that was overwhelmingly contradicting the story which she has been telling me.
In my view, the trial judge did not place too much emphasis on the film. When he said that it appeared to depict the plaintiff going about her day-to-day activities “… in what appeared to … be a normal and pain-free way”, that was a perfectly reasonable observation to make about the activities depicted on the film. Furthermore, he was entitled to reach the view, which he expressed in his judgment, that the way she went about the activities depicted in the film was inconsistent with much of the evidence which she had given during the course of the trial and with many of the complaints that were made to the doctors who had examined her.
I accept the point made by Mr Quick that there is, perhaps, no inconsistency between clinical findings on medical examination that the plaintiff had a full, virtually pain-free range of movement in her neck and shoulder, and the extent of her activities depicted in the film.
But that is not the point. The important point is that her complaints of the way in which she said that her day-to-day activities were interfered with by her neck symptoms, was neither consistent with the free range of pain free movement demonstrated on clinical examination by the doctors, and nor were they consistent with the free range of movements depicted in the variety of settings depicted in the film.
I accept that it is important that films used in cases such as this be viewed cautiously, both by the trial judge and the witnesses to whom the film is displayed. Allowance should be made for the fact that a film will often only depict movements over a short period of time which may not be representative of what might appear from a more extended observation.
I think that it would have been better in this case if the person who was responsible for taking the film had been called, and evidence led as to the total period of time under which the appellant was under observation compared with the amount of time during which the film was taken. Some sort of assurance should also be given that the film was not a series of clips from a longer film and that there was no footage which had been discarded.
However, in this case, the footage was taken over a reasonably substantial period of time and depicted activity of some extent and duration, the effect of which was, in my view, of some assistance to the trial judge in determining the genuineness of the appellant’s complaints.
The fact that experienced medical specialists were prepared to regard the film as being inconsistent with the complaints which had been made, was a matter which the trial judge was entitled to treat as of some significance.
Did the trial judge err in preferring the respondent’s medical witnesses?
This point may be disposed of shortly.
All of the medical witnesses who were called were examined and cross-examined at length. Their reports were tendered, and reports were tendered from several medical specialists who were not called to give evidence.
As I said earlier in this judgment, the differences between the medical witnesses turned largely upon whether they were prepared to accept the appellant’s complaints, notwithstanding the lack of evidence of any organic injury.
The trial judge explained his preference for the evidence given by Dr Kelly and Dr Johnson in the following passage in his reasons:
[231]As to the doctors who gave evidence I was much impressed with Dr Kelly and Dr Johnson. I was impressed by the way in which both gave evidence and responded to the matters that were put to them in cross-examination. I have referred to and reproduced much of what they wrote in their reports and said in their evidence. Most of what each said impressed me as having an aura of authority and common sense. At no stage during each’s evidence did I consider that they were committed dogmatically to their opinions. Neither doctor would say that the plaintiff was a malingerer, even when pressed, although both said that some of her activities they saw on film could have been interpreted to lead to such a conclusion.
[232]On the other hand, I was not convinced by the evidence and opinions of Dr Graham and Dr Mills. As I have already indicated, both those doctors seem to me to be ultimately saying that they saw no reason to disbelieve the plaintiff so they described, as best they could, a diagnosis which amounted to little more than identifying that she was symptomatic of pain.
[233]Insofar as my conclusions in this case rely on the medical evidence I heard I consider the evidence and opinions of Dr Kelly and Dr Johnson to be reliable, convincing, and compelling. I consider that their evidence and opinions, and not the evidence and opinions of Dr Graham and Dr Mills, should guide me in my conclusions in this case. I do not consider that the written reports of Dr Munyard, and the evidence of Dr Slaughter and Ms Morgan, were such as to convince me that I should do other than rely on the evidence and opinions of Dr Kelly and Dr Johnson.

The trial judge had the advantage of seeing and hearing the witnesses give their evidence. Absent any obvious misunderstanding of the evidence or other error in assessing it, and none has been identified by the appellant, this Court is not in a position to interfere with this aspect of the trial judge’s reasons.
Other matters
I have not dealt expressly with the 13 grounds of appeal set out in the appellant’s notice of appeal. Mr Quick did not shape his argument for the appellant against those grounds. In those circumstances I have thought it appropriate to deal with the salient features of his argument under the above headings.
However, in two of the grounds of appeal (grounds 10 and 11) the appellant complains that the trial judge erred in refusing the appellant’s application made at a late stage of the trial after all of the evidence was in, to amend the statement of claim to plead that the appellant had suffered a non-organic injury.
In my view, the trial judge correctly rejected the application.
From start to finish, the appellant’s case was presented on the basis that she had suffered organic injury which gave rise to the symptoms of which she consistently complained. No psychiatric or psychological evidence was called. Even if the amendment had been allowed, it could not have led anywhere.
Conclusion
Reasoning from the conclusions which I have so far expressed, there are fundamental difficulties or inconsistencies, in the manner in which the plaintiff’s case was presented.
As I have already observed, x-rays and clinical examination of the plaintiff by a number of doctors over a long period of time, from shortly after the accident, failed to indicate that there is any organic basis for the continuing symptoms in the neck.
Furthermore, throughout virtually the whole of the relevant period, examinations revealed virtually full, pain-free movements of the neck and shoulder.
The trial judge expressed the following conclusions as to the extent of the plaintiff’s pain and disability:
[234]I conclude that it is not probable that the plaintiff suffers the pain and disability she has described to doctors and in evidence. She has had, since soon after the accident, unrestricted pain-free movement of her neck and shoulders. She has had little active treatment by any medical practitioner and little pharmacological treatment. The doctors whom I prefer cannot explain her pain and symptoms on organic grounds, and have said that any symptoms which she does suffer are unrelated to the accident in April 1999. Furthermore, the plaintiff was, at the time of the accident, 40 years of age and her x-rays and scans were consistent with a woman of that age, with the possibility of some degenerative change being noted as being unassociated with the accident. Since the accident she has, however, borne her first child at the age of 41 years and has been fully involved in the duties of motherhood. She has worked within and outside her house in ways which I have found is more than she said in evidence.
[235]My conclusion is that the plaintiff has not satisfied me that any pain, disabilities or incapacities which she has suffered since about September 1999, and which she may suffer in the future, are in any way attributable to the minor motor vehicle accident in April 1999.
[236]I am satisfied and find that in that accident on 13 April 1999 the plaintiff suffered a mild musculo-ligamentous injury to her neck for which she was appropriately treated in the months following the accident. I am satisfied and find that in the accident she suffered a very mild injury to her right wrist. I find that that injury resolved within a week or so. I am satisfied and find that any symptoms causing pain, disability, or incapacity which resulted from the injuries she suffered in the accident has resolved by no later than the end of 1999. I find that any such symptoms that she has experienced after the end of 1999 did not result from any injury she received in the motor vehicle accident in April 1999.
Those conclusions are not tainted by any misunderstanding as to the nature of the plaintiff’s case, and neither do they reflect any misapprehension of the evidence. The appellant has not made out any ground upon which it would be proper for this Court to interfere.
In my view, the appeal should be dismissed.
GRAY J: I would dismiss this appeal. I agree with the orders proposed by Perry J. I have nothing to add to his reasons.