Clayton v Fischer

[1993] QCA 323

IN THE COURT OF APPEAL

[1993] QCA 323

SUPREME COURT OF QUEENSLAND

Appeal No. 31 of 1993

Brisbane
[Clayton v. Fischer]

BETWEEN:

D'ARCY PHILLIP CLAYTON

(Plaintiff) Respondent

- and -

GWENDOLYNE FISCHER

(Defendant) Appellant

The President
Mr Justice Pincus

Mr Justice Demack

Judgment delivered 06/09/93

Joint reasons for judgment by the President and Demack J..
Pincus JA. dissenting.

APPEAL ALLOWED WITH COSTS TO BE TAXED. JUDGMENT IN FAVOUR OF THE RESPONDENT IS SET ASIDE. A NEW TRIAL LIMITED TO THE ISSUE OF DAMAGES IS ORDERED. THE COSTS OF THE FIRST TRIAL ARE RESERVED TO THE TRIAL JUDGE.

CATCHWORDS: DAMAGES - Causation - Conflict between evidence of experts cross-examined at trial and reports of experts not called - Whether court could choose between conflicting testimony.

Counsel:	Mr. R.D. Pack for the appellant Mr. R. Myers for the respondent
Solicitors:	Messrs. McInnes and Wilson as town agents for Messrs. Roberts, Leu and North for the appellant
Messrs. Thompson, King, Connolly as town agents for Connolly Suthers for the respondent

Hearing Date: 08/06/93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 31 of 1993

Before The President
Mr Justice Pincus
Mr Justice Demack

[Clayton v. Fischer]

BETWEEN:

D'ARCY PHILLIP CLAYTON

(Plaintiff) Respondent

- and -

GWENDOLYNE FISCHER

(Defendant) Appellant

REASONS FOR JUDGMENT - THE PRESIDENT AND DEMACK J.

Judgment delivered 06/09/93

This is an appeal against a judgment given in the Trial Division on 10 February 1993 awarding the respondent damages of $168,731.95. Liability was admitted at trial and the

appeal is concerned only with the quantum of the damages

awarded.

Mr. Clayton, the respondent, was born on 11 January

1942. In 1964, he was hit in the small of the back by a

gave evidence that he obtained complete relief from this
back injury after two visits to a chiropractor. However,
according to a report dated 23 October 1986, he told Dr.

bag of cement, causing injury to his lower back. Mr. Clayton suffered intermittent pain as a result of this incident but obtained relief every few years from another doctor.

In 1969, Mr. Clayton started a business of custom-

making picture frames, which was his primary source of
income until he stopped in 1987. He was also a keen and
proficient archer and earned some income teaching archery
and selling archery equipment.

On 11 August 1977, Mr. Clayton was admitted to the

Princess Alexandra Hospital in Brisbane because of anterior chest pain. He was discharged on 17 August 1977. Dr. R. A. Douglas, a physician, examined the hospital records and, in his report of 15 January 1990, stated that there was no evidence that the pain was of cardiac origin. It was written up in the hospital records as "chest pain ? cause".
On 15 June 1981, Mr. Clayton saw Dr. Watson in relation
to an accident that had occurred about two weeks prior. He
had slipped on stairs, jarring his spine, and complained of
pain in the low back, hips, groin and buttocks. Although he
had improved by the time he saw Dr. Watson, examination
showed diffuse lower lumber spinal tenderness and some
restriction of extension.

According to the report of Dr. R. A. Douglas to which

reference has been made, on 26 March 1983 Mr. Clayton was:

"...admitted (to Townsville General Hospital) for chest
pain which was thought to have been due to unstable
angina. However, his ECG was normal and cardiac enzymes
were normal and a maximum stress ECG was normal..."

On 16 June 1983, four days before the accident for

which he has been awarded damages in the present proceeding,
Mr. Clayton saw Dr. Watson in relation to a trip some days before along rough back roads from Greenvale to Townsville. According to Dr. Watson's later report of 23 October 1986,
Mr. Clayton had repeatedly jarred his spine, causing severe
right neck and hemicranial pain. However, at trial, Mr.
Clayton could not specifically recall having pain in the
neck or back after that trip. In his report of 23 October

1986, Dr. Watson stated:

"Examination at the time showed atlanto axial stiffness
and tenderness over the right greater occipital nerve
hiatus. He was treated by soft foam rubber collar
immobilisation, heat, analgesia and injection of

steroid into the tender hiatus."

On the day of the accident, 20 June 1983, but before it
occurred, Dr. Watson saw Mr. Clayton again and noted that he

"had shown progressive improvement with no need for

analgesia for the last day."
After Mr. Clayton consulted Dr. Watson, a car driven by the appellant, his de facto spouse, in which Mr. Clayton was a passenger, crashed into the rear of another motor vehicle. Mr. Clayton gave evidence that the appellant was driving

quite slowly, at about 30 to 40 km/h, but did not brake after the accident he "stumbled home and collapsed into a chair and had difficulty getting up again". He then went to the Townsville General Hospital, although he cannot remember doing so, where an examination showed that he "sustained injury to the neck, shoulder, knee and foot. On examination there was minimal tenderness over the above areas."
before the vehicles crashed. He said that he wore a seat
belt but was thrown sideways, hitting his head on the post
between the doors and thrusting his neck forwards. However,
he admitted that he only vaguely recollected the accident.

On 8 July 1983, two to three weeks after he was

injured, Mr. Clayton saw Dr. Watson for the first time after the accident in question. He complained of general neck pain and headaches aggravated by neck movement. He did not
complain of low back pain to Dr. Watson until July 1984, even though, in Mr. Clayton's evidence, he recalled that "shortly after the accident...(he had) severe neck and back
pain so that (he) was almost rigid". Dr. Watson said at the
trial that he "manipulated his lumbar spine on the first
occasion he saw him after the accident". In his report of 23

October 1986, Dr. Watson said :

"He stated that after he had left the surgery on
20/06/83 as a passenger he was involved in a motor
vehicle accident which caused an increase in his pre-
existing symptoms and a dazing but not loss of
consciousness. He was treated by cervical and dorsal
manipulation and since then has had reducing frequent
but regular such manipulation due to ongoing symptoms."
Between the material accident and July 1984, Dr. Watson

estimated that he saw Mr. Clayton nine or ten times. From July 1983 to April 1984, Dr. Watson certified Mr. Clayton for, and he received, sickness benefits from the Department

of Social Security. It is not obvious why these benefits
stopped when they did. According to Dr. Watson, Mr.
Clayton's condition deteriorated around mid-1984 and he was

"functionally crippled" for 18 months after the accident.

On 23 October 1984, Dr. Watson performed cervical

manipulation on Mr. Clayton under anaesthetic and, on 13 Clayton also thought he improved in 1984, but continued to go to Dr. Watson. He saw Dr. Watson about 70 times between the accident and trial.

In his report of 23 October 1986, Dr. Watson stated

that Mr. Clayton:

"...has been working at his Art and Archery business
for now some two years but finds he still has
consistent problems compared with the intermittent ones
pre-accident in that at least prolonged sitting for
half to one hour inevitably causes neck pain, low back
pain and bilateral leg pain of non sciatic type,
particularly presenting as burning pain in the
feet...".

On 19 December 1986, X-rays of Mr. Clayton's spine were

taken. They revealed that he had a degenerative spine
condition. According to another report of Dr. Watson dated

17 February 1987, the X-rays showed:

"...in the cervical spine minimal degenerative changes
at the antero-inferior margin of C6 and minor
degenerative changes at the lower lateral
articulations. In the lumbo sacral spine moderate
degenerative changes were present throughout this area
without significant disc space narrowing. There was no
instability demonstrable but movement between the lower
lumbar bodies (L3 to S1) was almost negligible. There
was a very large traction spur on the inferior aspect
of L3."

In February 1987, Mr. Clayton saw Dr. Watson in

relation to two falls that month. According to Mr. Clayton,
the first fall occurred when his left leg gave way. He
complained to Dr. Watson of low back pain; he could not bend
and he limped badly. Two weeks later (six weeks according
to Mr. Clayton), he fell again and had back pain that lasted
about 2 hours. Mr. Clayton's evidence was that, generally,
"falling seemed to be caused by the pain before (he) fell
rather than after (he) fell".

In March 1987, Dr. Watson gave Mr. Clayton a cordal-

steriod injection for "very significant" lumbo-sciatic pain. On 10 March 1987, Mr. Clayton again began to receive
sickness benefits from the Department of Social Security and

continued to do so until September 1992.

Because he was "unable to determine any neurological

cause" for Mr. Clayton's problems, Dr. Watson referred him noticed a "stabbing pain in the back" which lasted 48 hours.
to Dr. Jayasinghe, a neurologist. In his report dated 16
April 1987, Dr. Jayasinghe noted that he was informed by Mr.

Dr. Jayasinghe expressed the opinion that the falls were

"functional in nature". Mr. Clayton also complained of
memory loss, which Dr. Jayasinghe thought also functional.
The results of an E.E.G. test in April 1987 were normal.

On 13 April 1987, Dr. Gavin Douglas, an orthopaedic surgeon, examined Mr. Clayton. In his report of 16 April 1987, Dr. Douglas noted that Mr. Clayton sat comfortably,

moved freely, that there was no lumbar tenderness and that extension of his neck associated with neck pain on the left side.
back flexion and leg raising were full but that Mr. Clayton
complained of pain at the extreme of the movement. Dr.

On or about 1 June 1987, Dr. Keary, a physician

rheumatologist, saw Mr. Clayton. He diagnosed him as having

degenerative arthritis.

Sometime in 1987, Mr. Clayton ceased to make picture

frames. He said that it became too painful to continue
because it involved leaning over a bench, operating a
guillotine with one foot, clamping with the hands and feet,
and cutting glass for frames. He said that, in the past, he
had hired people to do some of the work, but it was not
practicable to pay people with the appropriate skills.

However, Mr. Clayton continued to earn money from the

sale of archery equipment and teaching archery, but filed no
tax returns after 1988. At the time of trial, he earned an
estimated $60.00 per week from the sale of archery
equipment.

On 23 March 1988, Dr. Watson saw Mr. Clayton after he
fell when a car "clipped" him. According to Dr. Watson, Mr.
Clayton complained of pain in the left hip and lower back,

and could walk but not bend or twist his left leg. However, according to Mr. Clayton, he did not suffer any injuries, in particular he did not believe he sustained any back injuries in this accident. Mr. Clayton had complained of pain in the
left hip two months prior to the accident, but Dr. Watson
said that his lower back pain became only temporarily more

constant after the 1988 accident.

On or before 18 April 1988, Mrs Drew, a clinical

psychologist, assessed Mr. Clayton's personality, memory and average. She did not think that his intellectual ability prevented him from continuing with his education and training.
concentration. According to tests she administered, Mr.

By the time Dr. Watson made a further report on 28

November 1989, Mr. Clayton could only pull a 30lb bow, whereas he could previously pull a 60lb bow.
On 19 March, 14 May, and 28 May 1990, Dr. Green, a

complained to him of impaired memory and concentration, Dr.
Green did not think that there was significant impairment.

psychiatrist, saw Mr. Clayton. Although Mr. Clayton having a psychogenic pain disorder with poor prognosis.

About 1991, it became too painful for Mr. Clayton to

engage in sexual intercourse with his wife and marital

problems became apparent.

On 2 April 1992, Dr. Green again saw Mr. Clayton and

diagnosed him as also having a conversion disorder, in which
he involuntarily simulated physical illness to satisfy
strong dependency needs.

On 5 April 1992, Dr. Gavin Douglas saw Mr. Clayton again. Mr. Clayton complained that, since seeing him in 1987, he had increased pain in the back, right buttock and

leg when walking, bending or squatting, and had developed pain and stiffness in his right shoulder and fingers. Dr. Douglas noted a 50% restriction of all ranges of neck
movement.
On 8 April 1992, X-rays of Mr. Clayton's spine and hip
were taken. Since Dr. Gavin Douglas had examined him in
1987, Mr. Clayton had developed degenerative disc narrowing
in the upper cervical spine, now had a "moderately severe"
degenerative disease of the lumbar spine, and had developed
degenerative arthritis of the right hip. Dr. Douglas
expressed the view that Mr. Clayton's increased pain
associated with walking, increased back discomfort,
increased neck pain and stiffness, greater restriction of
neck movement, pain in the right and left shoulders, and
pain in the right hip were caused by a degenerative
condition and bore no relation to the accident in 1983.

The trial judge summarised Mr. Clayton's complaints at the time of trial as follows:

"(a) pain in the lower back which is said to be constant but of variable intensity and which is aggravated by various activity;
(b) constant and severe pain in the hips which
radiates into the groin;
(c) pain in the legs, knees, ankles and feet which is
said to be worse than in the left and is aggravated by
movement or by walking any distance or standing for any
length of time ;
(d) pain in the upper back which is not constant like
the other pain but is often more severe;
(e) pain in the neck which is said to be constant with
tenderness to the touch;
(f) severe headaches which are described as being in
the nature of a pressure type pain;
(g) pain in the arms which is intermittent.

In addition, he complains of other problems such as confusion, impairment of memory, lack of co-ordination, a sensation of burning skin on the top of the head, loss of concentration and a tendency to readily become upset and angry."

His Honour's critical findings were as follows:
"I accept that the plaintiff has the problems of which
he presently complains and I accept that they are by
and large the result of the trauma sustained in this
incident with the causes being both organic and
functional. I am however satisfied that the plaintiff
had the pre-disposition referred to and also that he
suffered from some pre-existing although not great
problems of the upper and lower spine. I am also
satisfied that not all of the plaintiff's present
problems can be ascribed to the accident and I make
appropriate discounts in my assessment of damages under

the various heads for these factors."

Earlier, his Honour had said:

"The evidence establishes that he had at least two
further incidents in which he may have sustained some
aggravation of some of these problems and I take this
into account in the assessment of damages."
The central issue is whether the findings favourable to

Mr. Clayton were properly made. The resolution of this issue is extremely difficult because the relationship between Mr Clayton's disabilities and the injuries which he suffered in the accident negligently caused by the appellant is complicated by a number of overlapping factors: (i) earlier accidents; (ii) later accidents; (iii) psychogenic or functional disorders; and (iv) degeneration of the spine.

At trial, a number of medical reports were tendered by

authors of these reports, only Dr. Watson, Dr. Green and Mrs

counsel for the respondent without objection. Of the circumstances of this case, that course was totally unsatisfactory and made it even more difficult to separate the effect of the material accident from other matters which
might bear upon Mr. Clayton's condition, especially because

the opinions which were expressed did not adequately isolate

and discuss the consequences of the various factors to

which reference has been made.

A sufficient understanding of the problems which exist

can be gained by reference to some of the views stated. A
further treatment of the evidence appears in the judgment of
Pincus JA. and need not be repeated here.

Dr. Watson expressed the opinion that the material

accident was a cause of Mr. Clayton's condition and that the accidents in 1987 and 1988 only temporarily exacerbated that condition. He gave inconsistent reports concerning the
extent of Mr. Clayton's pre-existing problems. In his

report of 23 October 1986, he said:

"(Mr. Clayton) stated that after he had left the
surgery on 20/06/83 as a passenger he was involved in a

motor vehicle accident which caused an increase in his

pre-existing symptoms and a dazing but not loss of

consciousness."

In his report of 17 February 1987, he said:

"Before the 1983 accident your client had only
intermittent troubles and was totally asymptomatic for
a period preceding that accident. There is nothing to
suggest that he would have deteriorated to his current
level of incapacity without trauma of the magnitude as
described in that accident, and it is likely he would
have continued purely with intermittent remediable

symptoms."

In his report of 17 March 1992, he said:

"(h)e undoubtedly had intermittent significant spinal

symptoms prior to the accident in question... ".

In his report of 17 February 1987, Dr. Watson also

referred to Mr.
Clayton's spinal
degeneration but
gave no opinion
as to the extent
to which that
degeneration was
caused by the
material
accident. In his
report of 17
March 1992, Dr.
Watson referred
to 'significant
spinal symptoms

prior to the
accident" but
said that "...
there was nothing
to suggest that
he would have
deteriorated to
his current level
of incapacity
without acute
trauma of the
accident ... ."

In that report, Dr. Watson also expressed agreement

with Dr. Green's assessment of Mr. Clayton's "emotional
status and personality factors" and said that he had "no
doubt that they contribute very significantly to his

invalidity ... ".

Dr. Gavin Douglas' reports were tendered without him

being called as a witness. While Dr. Douglas considered
that the accident had contributed to Mr. Clayton's condition
in early 1987, it was his view that further deterioration
after that time was not caused by the accident. So much
appears from his reports of 16 April 1987 and 15 April 1992.

In a subsequent report dated 29 May 1992, Dr. Douglas said:

"this man's low back pain has an organic cause, namely
degeneration of the lumbar spine and ... was aggravated
by the accident and I also believe that psychological
causes are contributing significantly to the severity

of the pain."

Dr Keary, a physician rheumatoligist, said in his report of

1 June 1987:

"... I believe that this man has degenerative type osteoarthritis, he is flat footed and his symptoms are worsened by functional factors."

arthritis, the extent of which this was accelerated or
precipitated by trauma is, as always, difficult to say.
Darcy is a very tense and anxious man and this
contributes to his troubles and I believe that he has a
deep seated personality disorder which also makes life
difficult for him. I have little doubt that functional
factors play a big role in his problems. ...

For the most part, Dr. Gavin Douglas's views were not put to Dr. Watson when he gave his evidence.

In a report dated 18 April 1988, Mrs. Drew, a

psychologist, said that a personality assessment test of Mr. Clayton, showed "a slight tendency towards neurotic traits - scores were elevated on the hysteria, depression, paranoid

and hypochondriasis scales." She also thought it "possible
that his preoccupation with his health and tendency to
convert emotional stress into bodily phenomena may explain

some of his symptoms."

Mrs. Coles, an occupational therapist, assessed Mr.

Clayton on 3 October 1992. She gave evidence at the trial. In her detailed report, dated 14 December 1992, she said that the respondent was depressed and had low self esteem because of the effect of the accident in question on his lifestyle.
It is impossible to reconcile the diverse views which

upon Dr. Green. However, Dr. Green's evidence, including
his opinion that the material accident was "pre-eminent in
the current situation" did not provide a sound basis for his

were expressed. The trial judge sought to do so by reliance and large the result of the trauma sustained" in that accident. We have read, and agree with, what Pincus JA has said on this topic.

It follows from what has been said that the judgment

appealed from cannot be supported by reference to the trial
judge's reasons. It is less apparent what course should now

be adopted.

On the one hand, it is correct to say that there is

evidence upon which the judgment could be supported. some evidence and a rejection of other evidence, notably the evidence of Dr. Gavin Douglas, who is expert in the relevant field and was not cross-examined. There is no sufficient justification for that course, especially since his evidence was tendered by the respondent.

Conversely, it is not appropriate, in our opinion, to form a lay view of the apparently minor seriousness of Mr. Clayton's injuries in the material accident and to prefer

the medical evidence which is most consistent with that view, rejecting contrary evidence such as that from Dr. Watson. There is no satisfactory basis upon which this Court can choose between the conflicting testimony of
witnesses, some of whom were, and others of whom were not,

cross-examined at the trial.

Regrettable as it is, we can see no alternative to a

new trial. Liability is not in issue and the trial will be
restricted to damages. Presumably, this time the parties
will not again create an impasse by the methods which they
adopt but will present the court with evidence in a manner
which permits satisfactory findings to be made.

The appeal is allowed, with costs to be taxed, and the judgment in favour of the respondent set aside. There must be a new trial limited to the issue of damages. The costs

of the first trial are reserved to the trial judge.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 31 of 1993.
Brisbane
Before	The President Pincus J.A. Demack J.

[Clayton v. Fischer]

BETWEEN

D'ARCY PHILLIP CLAYTON

Plaintiff/Respondent

AND

GWENDOLYNE FISCHER

Defendant/Appellant

REASONS FOR JUDGMENT - PINCUS J.A.

Delivered 6 September 1993

This is an appeal against an assessment of damages in a personal injury case. The respondent suffered what appears to have been a minor injury ten years ago and now complains of a variety of symptoms, practically from head to toe.

The learned primary judge took the view that these are largely due to the injury in 1983 and Mr Pack, counsel for the appellant, challenges that finding.

A number of specialists saw the respondent and, with the exception of Dr R R D Watson, did not until recent years find much wrong with him, despite the range of his complaints. It is my respectful opinion that the judge was wrong in his conclusion that the plaintiff's complaints are "by and large the result of the trauma sustained" in the 1983 accident. To some extent the judge's conclusion may have been influenced by his Honour's expressed view that the case was one in which it was for the defendant to isolate, from the various causes of the respondent's condition, causes other than the 1983 accident. As will appear, I am in respectful disagreement with that view and think that no onus, evidentiary or otherwise, fell on the defendant.

The way the medical evidence came before the judge was that the respondent's counsel tendered reports of 6 medical practitioners, but called only two of the doctors, namely Drs. Watson and Green. Since the respondent's basic problems were supposed to be orthopaedic, the most important opinion was that of the orthopaedic surgeon Mr Gavin Douglas, who was not called, but whose final view of the matter appears to be somewhat at variance with the judge's conclusion. A question arises as to how an appellate court should proceed in this situation - i.e. where a judge's factual conclusion is based on an analysis of some oral evidence and some which is merely placed before him in the form of reports. It appears to me that the fact that the judge heard only two of the six doctors whose opinions were before him assists the appellant; although according to the orthodox theory the judge had an advantage over this Court in seeing and hearing two of the medical witnesses, he had no advantage with respect to the rest of them and in particular Mr Gavin Douglas.

What Happened to the Respondent in the Accident?

In determining the consequences of an accident the initial task must be, for Court as well as examining doctor, to find out what happened in the accident. There can be no doubt that the onus was on the plaintiff, now respondent, to establish that. He has given varying accounts of the matter and recently has tended to say that he does not remember much about it. The only version of what occurred which does not depend entirely upon the accuracy of the respondent's recollection is contained in a report from Dr Jaumees of the Townsville Hospital reading, in whole, as follows :

"Seen in Casualty 20.6.83 following involvement in a motor vehicle accident. He sustained injury to the neck, shoulder, knee and foot.

On examination there was minimal tenderness over the above areas.

X-ray of the right foot showed no obvious fracture, he was discharged.

Not seen with this problem since that time."

The "minimal tenderness" mentioned by Dr Jaumees refers, I take it, to the patient's response when the areas of which he made complaint were handled. What this means I assume is that in the opinion of the examining doctor the patient did not appear to suffer any significant pain when the allegedly injured areas had some degree of pressure applied to them.

There is no suggestion in the report, nor in the respondent's evidence, that there was any visible injury, for example by way of bruises or cuts. In short, if the hospital report is a good guide to what occurred, nothing of any great consequence did. This is not inconsistent with the account the respondent gave of the way he came to be injured, that a vehicle in which he was a passenger ran at slow speed into a vehicle in front of it.

What injury does the respondent say he suffered in the accident? No simple answer can be given. A physician, Dr R A Douglas, was told by the respondent that he walked home from the accident, got into a chair and then could not get up. "He noticed severe pain in the back and felt as though it had seized up". It is notable that the hospital report makes no mention of trouble with the back. Complaint of injury to the back (but no other injury) in the accident was also made to an occupational therapist, Ms Coles; whereas a psychologist, Ms Drew, was told there was a "whiplash injury" and that the respondent had received a "tap on the head". A psychiatrist, Dr Green, was told by the respondent that he "might have banged his head on the side wall of the car" and he "could not lift his left arm very well" and that when he got home he felt pain "everywhere". Dr Watson, who saw the respondent about a fortnight after the accident, apparently recorded him as then complaining of generalised neck pain and stiffness and headache. There is no mention of any complaint to Dr Watson of back pain, at that time.

The problem of the inconsistency of the respondent's account of what happened to him in the accident could be more closely analysed, but perhaps enough has been said on that subject. In my respectful opinion there is no sound ground for holding that there was a severe accident; Dr Watson said that the respondent suffered "acute trauma", but that cannot be supported.

Orthopaedic and Neurological Opinion

It clearly appears that if there is any organic consequence of the accident, it is said to be principally spinal; the respondent's case was that his spine was injured in the accident, particularly the lower spine. As I understand the matter, the spine is thought to be chiefly the province of neurologists and orthopaedists.

A neurologist was consulted and his examination did not disclose any neurological trouble. The orthopaedic surgeon, Mr Douglas, made two substantial reports. In the first (given four years after the accident), he found nothing much wrong with the respondent, on examination. It is, I think, worth quoting a sample of this :

"On examination it was noted that he sat
comfortably and moved around the room freely.
Back flexion was full but he complained of
discomfort on recovering from the flexed position.
He complained of discomfort when removing his
shoes and socks. There was no lumbar
tenderness...Examination of his neck showed slight
restriction of rotation to the right and slight
restriction of extension."

Mr Douglas said in effect that he thought the accident had increased the degree of incapacity of the respondent, caused by previous injuries to the spine.

In the second report, dated 1992, Mr Douglas found more substantial trouble, in particular with the right hip which proved on x-ray to be affected by "moderately advanced osteoarthritis". The doctor thought this had nothing to do with the accident. He said there was probably deterioration in the lumbar spine since 1987, but this was "not specifically related to the accident in 1983"; nor was the respondent's increasing neck disability to be related to that accident. Lastly, he found a degenerative condition of the right shoulder and to a lesser extent of the left shoulder, neither being related to the accident.

In summary, as it appears to me, the doctor says that since 1987 there have been significant changes in the condition of the spine and of the right hip, not due to the accident. It is my opinion that the judge's view that the respondent's present symptoms are largely due to the accident is hard to reconcile with the second report of Mr Douglas.

Psychiatric Problems

It is trite to say that it is difficult to determine the true cause of widespread symptoms of intense pain in various parts of the body, not related to objective signs.

As I have pointed out, in recent years the respondent has developed a degenerative condition in the spine and more seriously in the right hip; but he was apparently complaining of very serious ailments well before that. Dr Watson was convinced that he was "functionally crippled" in the 18 months after the accident. Dr Watson, who tends to attribute everything of which the respondent complains to the accident, found up to 1986 "very little in the way of objective abnormality", as did other doctors.

Dr Watson described the respondent in 1987 as having a "constellation of seeming bazaar (sic) and unrelated symptoms" apart from severe symptoms referable to the spine, and bad headaches. The primary judge points out that the respondent complained of "other problems such as confusion, impairment of memory, lack of co-ordination, a sensation of burning skin on the top of his head, loss of concentration and a tendency to readily become upset and angry". Dr Green, the psychiatrist, described the respondent in 1990 as having "psychogenic pain disorder" and in a 1992 report said there was "a conversion disorder or possibly a factitious disorder". The expression "factitious disorder" is one in which the symptoms are "at least to some extent under voluntary control". When asked at the trial about the relationship of this to the accident Dr Green made some observations which should be quoted:

"One attempts to trace a continuity of symptoms
and events from the original injury"

"One has to rely quite often on the attributions given by the patient, and if the patient attributes the problem to the original injury...then it's hard to avoid concluding that the original injury is pre-eminent in the current situation".

The logic of this escapes me. I do not know why it should be thought that because the respondent says his troubles are due to the 1983 accident, one must assume that to be so.

For the reasons I have mentioned, it appears that nothing of any great importance happened in that accident. It is repetitive to say so, but no-one has suggested that there was any visible sign of injury; all that happened, it appears, is that a car in which the respondent was a passenger, seatbelted, collided quite slowly with the rear of another car. It is, on the face of it, improbable that such an event should bring about the disastrous consequence alleged, of rendering a healthy man unemployable and subjecting him to unremitting severe pain for ten years.

Another reason for thinking, as I do, that his Honour should have rejected Dr Green's opinion is that the doctor was not given a proper history. He gave evidence that the respondent told him that "he had no significant illnesses or accidents previously". As appears from Dr Watson's reports, a week or so before the subject accident the respondent had, or claimed to have, suffered a substantial neck injury which resulted in his having a cervical collar prescribed; he was travelling home from a medical consultation with Dr Watson relating to that when the subject accident occurred.

(Despite this history, Dr Watson described the respondent as having been "totally asymptomatic for a period immediately preceding" the 1983 accident and also described him as "stoical"; both remarks appear to me to be inaccurate.)

There were also other insults to the spine in his history, one of which requires special mention; it appears that the respondent was struck by a car in 1988. This was described by the psychologist, Ms Drew, as follows :

"Since the assessment he has been involved in another motor vehicle incident, being knocked down as he was chasing his stolen car, and says he has sustained damage to his lower back. He is receiving medical treatment for this."

It is to be noted that in discussing this incident in Court the respondent tended to play down its importance. He said :

"I was clipped by a vehicle but I didn't sustain any injuries. I had them checked. I didn't even have a bruise. The vehicle swung past me and just touched me as it went past."

It is not easy to reconcile this with the account said to have been given to Ms Drew. The report of the physician, Dr Douglas, is of interest with respect to Dr Green (the psychiatrist) having been told that there were no significant illnesses before the accident. Dr Douglas found by consulting hospital records that in 1977 the respondent was admitted to hospital suffering from chest pain, and in 1980 there was a fractured left humerus. On 26 March 1983,

"...he was admitted for chest pain which was were normal and a maximum stress ECG was normal..."

thought to have been due to unstable angina.

This event - the respondent's having been admitted to hospital suffering from apparent symptoms of heart disease shortly before the accident, there being nothing to show on objective examination - was a relevant part of the history, the question being whether the present tendency to complain of matters unsupported by objective signs is substantially due to the subject accident. I note that Dr Keary was told, apparently by the respondent, of a heart attack in 1977, said to have involved the respondent being in a coronary care unit for 10 days.

If it is accepted, as I have concluded it should be, that the initial accident was quite a minor event, then the likelihood of its truly having had the consequences the respondent attributes to it is low. One would need more than the respondent's say so to justify a conclusion in favour of the respondent on the point.

Low Back Pain

Although it appears from what has been said above that no complaint of low back pain was recorded at the hospital, nor by Dr Watson when he saw the respondent a fortnight later, the subject looms sufficiently large to warrant further discussion. This is so because low back symptoms have been dominant; for example, Dr Watson said in his most recent report :

"His predominant handicap is low back and
bilateral leg pain..."

I understand from the learned primary judge's reasons that he was prepared to accept that there was low back injury in the accident. In my opinion that was not established. It is true that Dr Watson said, as the judge points out, that there was "dorsal manipulation" on 8 July 1983 and apparently subsequently, but it is unclear what the reason for that was. Dr Watson, on consulting his records in Court, agreed that he had recorded no complaint of low back pain until July 1984, more than a year after the accident.

When asked about the accident at the trial, the respondent agreed that when he went to see Dr Watson after the accident he was complaining predominantly of neck related pain - "neck and head pain".

It was for the respondent to prove, if that was the fact, that his lower back was injured in the accident, and in my respectful opinion he failed to do so. On his own case, he had suffered low back injury in 1964 and again in 1981, although the extent and severity of those injuries were not precisely proved.

Watts v. Rake

The learned primary judge, after referring to the evidence that a number of factors had played a role in the respondent's condition remarked :

"The authorities establish that it is for the defendant in such a case to isolate the other factors and to demonstrate the extent to which they operate to produce the current condition.

The same remarks apply in relation to the pre- existing problems of the plaintiff. I accept that the plaintiff has the problems of which he presently complains and I accept that they are by and large the result of the trauma sustained in this incident with the causes being both organic and functional."

It is the finding in the second part of the sentence last quoted which is the principal issue in this appeal - namely, that the present complaints are by and large the result of the 1983 accident. The judge went on to say in effect that he would discount his assessment for the operation of factors other than the accident.

It was suggested by Mr Pack that the judge's view of the doctrine of Watts v. Rake (1960) 108 C.L.R. 158 had some bearing upon his treatment of the evidence concerning operative causes other than the subject accident; I agree.

In Purkess v. Crittenden (1965) 114 C.L.R. 164 at 167, 168, Watts v. Rake is explained as being authority for the view that while the onus of proof always remains on the plaintiff -

"...it is not enough for the defendant merely to suggest the existence of a progressive pre- existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity".

The Court went on to say, in effect, that the defendant had to produce evidence showing "with some reasonable measure of precision" the nature and effects of the pre-existing condition.

What the Court did not explain in Purkess v. Crittenden is the legal result of the defendant's not establishing the effect of the pre-existing condition with any precision.

Another problem is whether the doctrine of the case applies to conditions which, although not pre-existing, contribute to the total disability. The problem arises in rather a complicated form in the present case; a simpler example may help analysis. Suppose there are two accidents, caused by tortfeasor A and tortfeasor B, quite separately, and each contributes to the total disability. If A is sued first and, perhaps due to the nature of the disability, there is no prospect of its being held that the contribution of B's tort to it can be accurately defined, then perhaps Purkess v. Crittenden requires that the plaintiff is awarded damages against A as if A were totally responsible for the whole disability. It would be odd if the plaintiff were then able to recover on the same basis against B. I note that in

State of Western Australia v. Watson (1988) Aust. Torts Rep. 80-226, Purkess v. Crittenden was treated as applying to "competing concurrent conditions", as well as to pre- existing conditions; further, because of the failure of the defendant to discharge the evidentiary burden, the plaintiff recovered on the basis that the whole of his disability was due to the tort, although it was apparently not so due.

Here, it does not appear to me that the situation envisaged in Purkess v. Crittenden arose. The Court was there concerned with the problem which has to be solved when there is a prima facie case, adduced by the plaintiff, of an identifiable disability caused by the defendant's tort, but the defendant points to other causes or possible causes.

Here, the plaintiff's case, in my opinion, did not establish that, even prima facie; it showed that the plaintiff himself attributed his symptoms to the tort, but that such disability as he suffered from was largely psychogenic.

Insofar as he was afflicted by any physical ailment, that was in substantial part an arthritic condition which arose years after, and was causally unrelated to, the accident.

In my respectful opinion Watts v. Rake has nothing to say about that situation, nor does it impose upon the appellant the impossible task of accurately defining the extent of the operation of the various possible causes of the respondent's present "sad and dejected" state.

Conclusion

I would, but for the fact that the majority of the Court is of the view that the matter should be re-tried, have expressed my opinion as to the proper award, on the evidence in this record. In the circumstances, it appears undesirable that I do so. I would have been in favour of allowing the appeal and reducing the learned primary judge's assessment of damages.