Davies v Nilsen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0149

DIANNE DAVIES	Applicant
v
JUDY NILSEN	Respondent

---

JUDGES:	OSBORN, BEACH JJA and KEOGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 June 2017
DATE OF JUDGMENT:	11 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 202
JUDGMENT APPEALED FROM:	[2016] VSC 557 (Macaulay J)

---

ACCIDENT COMPENSATION – Appeal – Transport accident – Personal injuries – Causation – Whether transport accident was a cause of injuries to the plaintiff’s left knee and low back – No error in judge’s conclusion that transport accident not shown to be a cause of plaintiff’s low back condition – Plaintiff’s left knee condition shown on whole of evidence to be causally related to transport accident – Application for leave to appeal granted – Appeal allowed – Matter remitted for rehearing and determination.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A G Uren QC with Mr A D B Ingram	Slater and Gordon
For the Respondent	Mr J Ruskin QC with Ms R L Kaye	Solicitor to Transport Accident Commission

OSBORN JA:

BEACH JA:
KEOGH AJA:

This application arises out of the determination of a common law claim for damages for personal injury resulting from a motor car accident which occurred on 22 November 1995.

On that day the applicant, who was then 24 years’ old, was the driver of a stationary motor car which was struck from the rear as the third in a five car pileup hit in successive impacts. The force of the collision was substantial. The applicant said that her car was written off and that she subsequently observed cracks between the back doors and the back windscreen on both sides of the car. The applicant was thrown forward against her seatbelt and then, as her own car struck a stationary vehicle in front of her, she was thrown back and her head struck the car seat. In addition as she was thrown forward her knees struck the air-conditioning unit under the dashboard.

There is no dispute that as a result the applicant suffered a whiplash type injury with resultant soft tissue damage to her neck, upper back and left shoulder. She also suffered grazing and bruising to her knees.

Following the accident she attended her local general medical practice, St Helena Mediplex in Diamond Creek (‘St Helena’s’), and was absent from her work as an office manager for some two weeks. At the time she had been in steady employment for a number of years although she had suffered from chronic fatigue syndrome in her early adulthood.

The injuries described above are entirely consistent with:

(a) the causal mechanism of the motor car accident;

(b) the applicant’s appearance after the accident. The applicant was able to get out of her car and a police officer attending the scene noted that no-one appeared to be injured;

(c) the notes made by doctors at St Helena’s over the ensuing months including, in particular, the first note made on 23 November 1995:

Last night in middle of five car pile-up — two impacts. Neck V sore. Seat belt and head rest. Hit both knees. Upper back was sore. Now only neck. V tender upper thoracic spine and neck and shoulder especially see X spine. Treatment is RICE 72 hours then heat and massage.

(d) a summary description given by Dr Garry Rose, a treating general practitioner, on 5 December 1995 in a medical certificate supplied to the Transport Accident Commission (‘TAC’):

1.        Neck pain/stiffness.
2.        Left arm brachialgia.
3.        Tender left coraco-clavicular ligament.
4.        Concussion.

(e) the fact that the applicant was able to return to work and was able generally to continue working until she ceased work in late June 1996 for unrelated reasons;

(f) the fact that whilst medical certificates issued for short absences from work on 21 March 1996, 18 May 1996 and 22 May 1996 refer in general terms to spinal dysfunction and back pain, a certificate of 1 April 1996 refers specifically to dorsal spine injury, and a file note of the same date records ‘still dorsal spine distress’ and records that the applicant was referred for a CT scan of the dorsal spine;

(g) the terms of a statement made to a WorkCover investigator on 27 June 1996, after she had ceased her employment. In that statement the applicant said:

I have never had any other serious illness apart from a back injury, whiplash, and shoulder injury, sustained in a car accident in November 1995. I had been free of injury or illness since recovering from the chronic fatigue syndrome.

(h) the development of stress-related psychological problems at the time of the termination of the applicant’s employment together with a number of chronic fatigue type symptoms and the identification of these problems rather than physical disabilities as the cause of the applicant’s inability to return to alternative work;

(i) a report of Dr Ian McPherson, a treating general practitioner, on 15 August 1996 made in the context of a potential WorkCover claim relating to the circumstances in which she ceased employment, which stated:

The prognosis for the future is excellent so long as employment with Centari Systems does not continue. This is because her employed [sic] did significantly contribute to the condition.
Dianne is well able to resume duties to which she has been accustomed [but] as some psychological damage has been inflicted, sessions with a psychologist will be required in order to better learn to manage situations such as did occur at her workplace.

(j) a history given to Dr Dush Shan, a psychiatrist who provided a report to the WorkCover insurer on 22 August 1996:

In 1995 she had two weeks off work following an MCA when she was rear-ended by another vehicle. According to her, her car had to be towed away afterwards. She had back and neck pain for two weeks afterwards but returned to work with no further complaints.

(k) a further report by Dr McPherson of 6 March 1997, again given in the context of a WorkCover claim, stating:

The prognosis for the future is excellent provided that the patient does not work for Centari Systems again and attends a commercial and industrial psychologist (Mr R Wilks).
The workplace set up however causes the patient considerable distress each time she contemplates an office position. She often awakes at night thinking of the employer and experiences stomach cramps and biliousness well into the day before being able to eat ie about 1:00 pm ...
Currently there is no physical handicap or impairment relating to the workplace situation, but the emotional/psychological issues would approximate to 20 per cent whole body impairment.

(l) a report from Dr McPherson to the TAC of 19 May 1997:

No fractures or joint separations were sustained, but multiple soft tissue discomfort was experienced without nerve damage.
The discomfort related solely to the soft tissue ligamentous regions.
Discomfort was noted
• With both knees after collision with the dashboard.
• At over (sic) the cervical and upper thoracic spines.
•In the left neck and shoulder areas (brachydynia) with referral to the left shoulder and left elbow and hand.

• Over the right lower ribs (seat belt operations).
The only limiting range of movement was in the neck on extension.
All the discomfort was from mild to moderate intensity initially.

(m) Dr McPherson described the nature and extent of the applicant’s residual disability as follows:

The current residual consists of tenderness in the left neck and left elbow and mild discomfort in the intrascapular area on the back.
Percentage impairment of the left upper limb is 5% and the whole body rating is therefore 3%. (Relating to Table 20 of the second edition of the American Medical Association Guidelines.)
With the movement of the cervical spine left lateral flexion has been reduced by 30% indicating that 15% of movement has been lost and this rated on the whole body impairment level is that of 1%.
20% rotation to the left with neck movement has been lost and equates to 3% of whole body function and therefore the total body loss as rated in impairment is 7%.

(n) the treatment given to the applicant up to that time was entirely consistent with the injuries described by Dr McPherson on 19 May 1997. The applicant was given Digesic for pain and Nurofen for inflammation and swelling. She also had in excess of 20 consultations with Ms Moore, a physiotherapist.

After ceasing work in late June 1996, the applicant was primarily treated by her general practitioner, Dr McPherson, and a psychologist, Mr Robert Wilks, who saw the applicant for some 16 counselling sessions. Mr Wilks’s opinion of 19 August 1996 was that the applicant had developed a moderate/severe anxiety-depression disorder in response to the circumstances in which she ceased work.

Dr Shan, who saw the applicant at about the same time, considered that the applicant had reacted not so much to work stress as to criticism of poor performance. He found no evidence of any psychological or psychiatric disorder. He formed the view that there was an unconscious exaggeration of complaint. He found no incapacity for work.

In the event, however, the applicant did not return to fulltime work and claims that she suffered from ongoing substantial pain in the lower back and the left knee, together with consequential problems in dealing with complex regional pain syndrome, somatic symptom disorder and psychiatric illness.

She has also gained approximately 45 kilograms in weight.

She has developed a substantial dependence on pain-killing medication and has also suffered consequent physical side-effects.

These further injuries are particularised in the applicant’s statement of claim as follows:

(e) Musculo-ligamentous injury to the lower back;
(f) Injury to the L4/5 disc;
(g)Injury to the L5/S1 disc involving protrusion and high wear of the L5/S1 facet joint;

(h)      Referred symptoms affecting the left leg;
(i)        Pain, tenderness and limitation of movement affecting the left knee;
(j)        Onset of degenerative changes in the left knee;
(k)Chondral pathology involving the patella, the medial femoral condyle, the medial tibial condyle, the lateral femoral condyle, the medial femoral condyle, and fissuring of the trochlear groove;

(l)        Injury to the left knee necessitating surgery;
(m)     Increased risk for total knee replacement surgery;
(n)      Chronic pain syndrome;
(o)       Depression, anxiety and self-harm behaviour.

It is the causation, nature and extent of these further conditions which is the subject of fundamental dispute between the parties to this application.

On 19 September 2016, Macaulay J found as follows:

·the negligence of the defendant caused Ms Davies to suffer the admitted injuries to her upper back, neck, left shoulder and some bruising to her knees, together with some associated headaches and migraine;
·that negligence did not cause Ms Davies to suffer the disputed injuries, namely, the claimed left knee injury, complex regional pain syndrome, lower back injury, somatic symptom disorder, psychiatric illness and the physical effects of the prescribed medication; and
·the damages for her accident-caused injuries are assessed at $125,000.[1]

[1][2016] VSC 557 [356] (‘Reasons’) (emphasis in original).

The applicant’s case at trial was one of inference founded upon the following principal elements of the evidence:

·the evidence of the applicant and her mother as to her ongoing symptoms;
·the medical records of the applicant’s symptomology, medical investigations and treatment;
·the opinions of treating doctors; and
·the opinions of medico-legal experts.

The applicant’s case at trial confronted a series of underlying difficulties:

·Insofar as the applicant and her mother gave oral evidence of the applicant’s history, the effluxion of time necessarily gave rise to issues of reliability.
·No doctor who treated the applicant in the eight years following the accident was called to give oral evidence in support of the applicant’s case.
·Alternative explanations were open as to the possible causation of the applicant’s lower back and knee conditions. In particular, the respondent adduced evidence that such conditions were consistent with the development of degenerative conditions over time and in the circumstances of the applicant’s weight gain.
·The medical records relating to the applicant’s initial treatment did not directly corroborate the history she gave at trial of ongoing lower back and knee pain since shortly after the accident.
·Whilst there were individual pieces of evidence to which the applicant could point as supporting her case, the judge was ultimately required to form a view as to the extent to which he was positively persuaded on the balance of probabilities, having regard to the evidence as a whole.
·The medical opinion evidence upon which the applicant relied was in material respects contested and in part premised upon a history which the judge was not bound to accept. There is no doubt that it establishes that it was possible that the applicant’s lower back symptoms and knee conditions were caused by the motor car accident but the conclusion of a probable link was in part dependent upon aspects of the applicant’s history.
·There was psychiatric evidence and other medical opinion evidence that the applicant had from time to time given descriptions of her symptoms involving hyperbole, overstatement and enhancement.

Ultimately, the trial judge resolved the matter by reasoning as follows:

It is convenient that I now summarise my findings concerning which of Ms Davies’ claimed injuries were caused by the motor vehicle accident.
It is not in dispute that Ms Davies suffered a soft tissue injury to her cervical and upper thoracic spine, with some left shoulder symptoms. She also bruised both her left and right knees with some abrasions to them. She had some persisting mid to upper back and neck pain, at a mild or moderate intensity, for about two years after the accident until that pain was overshadowed by the development of low-back and left knee complaints that dominated thereafter. Some symptoms in that region continued thereafter but were described by Ms Davies in final submissions as an ‘undertone’ to other injuries and conditions. There was no direct evidence in support of a proposition that her neck and upper back symptoms, or any left shoulder symptoms, of themselves disabled her from employment or impaired her income-earning capacity. However, I will return to that question below.
Ms Davies also claims to have suffered some associated headaches which in turn progressed to migraines. My survey of the evidence reveals that reports of headaches do not feature to any significant degree in the medical notes until the latter part of 1999.[2] By that time the effects of her pain felt in her low back and left knee, and the re-agitation of her CFS symptoms and depression, were intensifying. I accept that her ongoing neck and shoulder pain probably accounted for some of her headaches and migraines. But, as I discuss below, I also think that their incidence and intensity probably had other causal origins I need to take into account.
[2]See ibid [184(m)], [190].
As for her complaint of low back injury, she did not report any pain to her low back within the first six months or so following the accident. I find that all of her complaints concerning her back were to the mid to upper spine region. Although some of the St Helena’s notes recorded simply pain to the ‘back’ or ‘spine’, when those notes are read in context with notes before and afterwards I interpret them to all be references to her dorsal or thoracic spine. I reject her evidence that she suffered disabling low back symptoms that caused her difficulty working at Centari Systems.
I do not know what to make of her complaint to Mr Brearley in September 1996 of having had constant discomfort in the lower back causing spasms down her right buttock and interfering with her work. I am simply not persuaded as a matter of probability that she did have those symptoms. Her account of her state of health to Mr Topp, and the medical records of St Helena’s, do not support that history. Dr McPherson, her treating general practitioner, made no mention of any such symptoms in his report of May 1997 when he wrote specifically about her motor accident injuries, referring only to mild intrascapular discomfort. Further, her tendency (as I have found her to have) to give an account of her health that might assist the claim in question, whether it be entirely accurate or not, causes me such doubt that I would not accept what she told Mr Brearley without some degree of corroboration from other objective evidence. There is no other corroboration.
She was first investigated for a complaint of low back pain in April 1998. The resultant CT-scan erroneously suggested nerve root impairment in the lumbo-sacral spine. Whether this result contributed to Ms Davies’ belief in a genuine injury to that region is hard to know. But little objective evidence of injury was found. By then, she had been out of work a little short of two years and I strongly suspect a psychological condition was driving her experience of pain. At most, it might be hypothesised that the accident accelerated or aggravated some pre-existing arthritic changes in her lumbo-sacral spine at L5/S1. But even so, the possible roles of the accident, constitutional (physical, personality and psychological) factors and her significant weight gain in the years after her accident are very difficult to fathom.
In large part, Ms Davies’ case depends upon the acceptance of the proposition that before the accident she did not have any low back pain but very soon after the accident she did. I do not accept that proposition. In this respect, from the unexplained failure of Ms Davies to call her early medical and health practitioners — Dr Gary Rose and Ms Moore (the physiotherapist) in particular — I infer that those practitioners would not have assisted her case.[3] It is enough for me to say that Ms Davies has not persuaded me that, but for the motor vehicle accident, she would not have experienced whatever lower back symptoms she claims to have experienced. I infer that I therefore do not find that the motor vehicle accident caused her any injury to her lower back.
Much the same can be said about her complaints of having sustained a significant left knee injury in the accident. I am not persuaded that she experienced any left knee symptoms of any note beyond some transient bruising immediately after the accident until she reported some symptoms to Dr McPherson 10 months later in late September 1996. Again, I draw the same inference that Dr Rose and Ms Moore’s evidence would not have assisted her case in this respect. When Ms Davies did report such symptoms, it was in the midst of the re-agitation of her CFS-type symptoms sparked by her work stress trauma. That stress was accompanied by quite pronounced physical symptoms of a range of types. By May 1997, Dr McPherson made no mention of her left knee complaint in connection with her motor accident. That complaint reappears when the focus goes off her work stress incident, after her WorkCover claim is settled. Thereafter, along with her low back pain, her left knee complaint pain assumes increasing prominence.
Over many years, investigations failed to find any obvious explanation for her symptoms. Her pain symptoms became multi-faceted, so that she was able to describe three distinct symptoms.[4] The second manifested itself 5 to 7 years after the accident and the third about 16 years afterwards.

It is most likely that Ms Davies developed symptoms of chondromalacia of the patella together with other arthritic changes in her knee. I have already stated and explained my views of Mr Miller’s opinion that the pattern of osteoarthritic change, shown on arthroscopic investigation, made it more probable that a trauma initiated Ms Davies’ left knee symptoms.[5] I need not repeat them. She clearly has some constitutional predisposition to knee joint arthritic change. Her significant weight no doubt contributed to the progression of her left knee pathology, and the fact that she also developed arthritic change in her right knee tends to make more likely the role of constitutional factors in her left knee arthritic change.[6] I am far from persuaded that but for the accident she would not have suffered this condition or her symptoms at about the same time and to about the same degree as she has in fact suffered them. So, I do not find that the motor vehicle accident caused any injury to her left knee or her right knee.
Having reached those conclusions, I cannot be satisfied that, but for the motor vehicle accident, Ms Davies would not have suffered the remaining disputed injuries: namely, the complex regional pain syndrome, somatic symptom disorder, her other psychiatric conditions and the physical effects of her prescribed medication. Each of those conditions, in my view, developed synergistically as reactions to and in turn drivers of her perception of pain in her low back and left knee which, themselves, stemmed from causes independent of the motor vehicle accident.
In short, I do not find that any of the disputed injuries were caused by the motor vehicle accident.[7]

[3]Jones v Dunkel (1959) 101 CLR 298.

[4]See at Reasons [86].

[5]Summarised at Reasons [288].

[6]See, for example, the opinion of Mr McLean summarised at Reasons [253]–[254].

[7]Reasons [324]–[335] (emphasis in original) (citations in original).

Before dealing with the issues in this Court and the submissions made by the parties, it is necessary to give a brief description of the applicant’s background.

Applicant’s background

The applicant was born on 16 January 1971. As we have said, she was 24 years of age at the time of the accident. She was 45 years of age at the time of trial.

Borrowing from the trial judge’s description of the background circumstances,[8] at the age of about eight, the applicant contracted infectious mononucleosis (glandular fever). She left school part way through year 12 (1988), then aged 17, due to fatigue and exhaustion.
[8]Ibid [10]–[23].

For a period of about 18 months to two years after leaving school, the applicant worked in a succession of jobs in secretarial and accounts roles: for an accounting firm, a legal firm and then for Colonial Mutual, ceasing her last employment due to fatigue.

In April 1990, the applicant’s general practitioner gave her a certificate to be off work for four months and referred her to Dr Michael Oldmeadow, a physician who specialised in the treatment of chronic fatigue syndrome. She was subsequently diagnosed with that condition.

In October 1990, the applicant was involved in a motor car accident at Bairnsdale when the car in which she was a passenger rolled over.

Sometime in about 1992 or 1993, having only worked for limited hours a day at her father’s petrol station up until then, the applicant resumed various fulltime employments: first as an integration aide at a primary school, then as an assistant bursar at another primary school, then at a pet shop and then as a nanny.

In mid-1994, the applicant obtained work at Centari Systems (‘Centari’), a computer supply business in Box Hill. She began as a receptionist and, in October 1995, was appointed as office administrator. All the while, she was living with her parents. It was not until later, in December 1998, then aged 22, that the applicant moved out of home into her own accommodation.

On 22 November 1995, the applicant was involved in the motor car collision the subject of the present proceeding. She attended her local medical clinic, St Helena’s, on 23, 27 and 29 November and on 5 December 1995, and was referred to physiotherapy. She was off work with medical certificates for approximately two weeks.

The applicant continued working at Centari from December 1995 until Monday 24 June 1996. On that day, she had a confrontation with her employer, and left work never to return. She went directly to her doctor with symptoms of stress, fatigue and nausea.

On 27 June 1996, the applicant made a statement to a WorkCover investigator, Mr Topp. She later commenced a claim through a solicitor, Mr Cottier, for compensation with respect to the termination of her employment. In the second half of 1996, the applicant saw a Dr Shan for assessment of claimed work-induced stress, and a Mr Wilks for her own treatment purposes.

In or about May 1997, the applicant’s WorkCover claim was settled for a figure of $18,775 being weekly compensation for 44 weeks of salary covering the period from 24 June 1996 to 27 April 1997. Thereafter, the applicant did not return to any form of fulltime employment other than one two week attempt as a receptionist for an optometrist. Otherwise, from time to time, she obtained occasional work performing clairvoyant readings and she also made and sold (mostly online) some handmade jewellery.

From 1997 onwards, the applicant continued to attend St Helena’s for treatment of illness and injury, was prescribed medication and was referred, from time to time, to various specialist medical practitioners. In September 2005, she returned to live at home with her mother. She has remained living with her mother ever since, attending doctors, undertaking some casual clairvoyant activities and jewellery making, but otherwise not in any fulltime employment.

The issues in this Court

In this Court, the applicant challenges the correctness of the trial judge’s decision by reference to the conceptual basis of his reasoning; a series of aspects of the circumstantial evidence; the judge’s treatment of the credit of the applicant and her mother; the judge’s analysis of the medical records; and the judge’s analysis of the medical opinion evidence. In her application for leave to appeal, the applicant set out 60 proposed grounds of appeal. In argument, however, the applicant did not advance argument by reference to any specific ground of appeal. Rather, the applicant advanced her case by reference to the following topics:

·the judge’s treatment of, and conclusions about, the evidence of the applicant and the applicant’s mother;
·the judge’s treatment of the principles, and issue of, causation;
·the judge’s treatment of, and conclusions about, the evidence in relation to the applicant’s lower back condition;
·the judge’s treatment of, and conclusions about, the evidence in relation to the applicant’s left knee condition; and
·the judge’s treatment of, and conclusions about, the evidence in relation to the applicant’s psychiatric conditions.

We interpolate that the 60 proposed grounds of appeal are in our view prolix, argumentative and do not distinguish between substantive contentions and subsidiary propositions. In the event, however, nothing of consequence turns upon this because the applicant’s contentions were synthesised in her written case and then refined in counsel’s oral submissions.

The principal areas in dispute between the parties in this Court concerned the judge’s consideration and treatment of the evidence, and conclusions, concerning the applicant’s left knee, lower back condition and psychiatric conditions. In respect of the left knee and lower back, there was debate about the time at which conditions affecting those body parts first manifested themselves and debate about the relevance and significance of any period of time that might have elapsed between the motor car accident and the first manifestation of injury or first complaint with respect thereto. Broadly speaking, the applicant contended that her account of the onset of symptoms should not have been rejected and that further whatever period of time might have elapsed between the accident and her experiencing a relevant symptom, the medical evidence supported her case on causation. Indeed, the applicant contended that the medical evidence supporting her claims that her left knee and lower back injuries were caused by the motor car accident was uncontradicted, and that it was not open to the judge to reject the expert evidence called at trial.

The respondent, on the other hand, contended that the judge was correct to reject the applicant’s account of the onset of her symptoms and that the greater the elapse of time between the accident and the reporting of a relevant symptom, the less likely there was a causal link between the accident and the symptom (injury). Moreover, the respondent contended that it was well open to the judge to not be satisfied on the whole of the evidence that there was a causal link between the accident and the applicant’s left knee and lower back conditions.

So far as the applicant’s psychiatric conditions were concerned, it was accepted by the parties that if the left knee and lower back conditions were properly to be regarded as causally linked to the motor car accident, then the psychiatric injuries (which were consequential upon the pain experienced by the applicant in respect of her left knee and lower back) were also causally related to the motor car accident. On the other hand, if the judge was correct in concluding that the left knee and lower back conditions were not causally linked to the motor car accident, then, on the evidence, the psychiatric injury was similarly not causally linked to the motor car accident.

Ultimately, the resolution of the applicant’s proceeding in this Court depends upon whether the judge’s conclusions about causation with respect to the lower back and the left knee were correct. In our view, his Honour’s conclusions with respect to the lower back were well open to him and accorded with the weight of the evidence but, for reasons we shall explain, we have reached a different view with respect to the alleged injury to the applicant’s left knee.

We shall deal with each of the topics covered by the applicant’s oral submissions but, before we do so, it is necessary to say something about the approach which the Court should adopt in an appeal by way of rehearing of this kind.

The proper approach of this Court

In Robinson Helicopter Company Inc v McDermott, the High Court reiterated the principles with respect to this type of hearing in the following terms:[9]

A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’[10] of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.[11] But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’,[12] or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.[13]

[9](2016) 331 ALR 550, 558–9 [43] (citations in original).

[10]Fox v Percy (2003) 214 CLR 118, 126-7 [25] (Gleeson CJ, Gummow and Kirby JJ) (‘Fox’).

[11]Devries v Australian National Railways Commission (1993) 177 CLR 472, 479–81 (Deane and Dawson JJ); Fox (2003) 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ); Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357, 380–1 [76] (Heydon, Crennan and Bell JJ).

[12]Fox (2003) 214 CLR 118, 128 [28] (Gleeson CJ, Gummow and Kirby JJ).

[13]Fox (2003) 214 CLR 118, 128 [29]. See also Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357, 380–1 [76].

In Fox v Percy, Gleeson CJ, Gummow and Kirby JJA said:[14]

On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’.[15] On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record.[16] These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share.[17] Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.[18]

[14](2003) 214 CLR 118, 125–6 [23] (citations in original).

[15]Dearman v Dearman (1908) 7 CLR 549, 561. The Court there was concerned with s 82 of the Matrimonial Causes Act 1899 (NSW) which provided that ‘on appeal every decree or order may be reversed or varied as the Full Court thinks proper’: see Dearman v Dearman (1908) 7 CLR 549, 558.

[16]Dearman v Dearman (1908) 7 CLR 549, 561. See also Scott v Pauly (1917) 24 CLR 274, 278–281.

[17]Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, 637; [1985] 1 All ER 635, 637 (Lord Scarman), with reference to Joyce v Yeomans [1981] 1 WLR 549, 556; [1981] 2 All ER 21, 26. See also Chambers v Jobling (1986) 7 NSWLR 1, 25.

[18]SRA State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306, 330 [89]–[91]; 160 ALR 588, 619–20, citing Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207, 209–10; Jones v The Queen (1997) 191 CLR 439, 466–7.

McHugh J said in Fox:

The question in this appeal is whether certain evidence, particularly the existence of skid marks on the respondent’s side of the road, made ‘glaringly improbable’,[19] or incontrovertibly denied, the appellant’s case that she was on her correct side of the road when struck by a van driven by the respondent. Unless it did, the Court of Appeal of the Supreme Court of New South Wales erred in setting aside the appellant’s verdict, which was based on the trial judge’s acceptance of the evidence of the appellant, one of her witnesses and written reports prepared by her traffic expert.[20]

[19]Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842, 844; 62 ALR 53, 57.

[20]Fox (2003) 214 CLR 118, 133–4 [48] (citation in original).

It can be seen that the applicant must confront a heavy burden in challenging the trial judge’s findings of fact.

We now turn to the first of the topics by reference to which the applicant’s case was argued in this Court.

The evidence of the applicant and her mother
The judge’s reasons

The judge commenced his reasons for judgment with a description of the issues in the case and background facts.[21] The judge then turned to the questions of the credibility and reliability of the evidence given by the applicant and the applicant’s mother. As in many claims for damages for personal injuries, the evidence of the applicant, being the plaintiff, was central to the outcome of the proceeding — the evidence being relevant both as to the nature and extent of the injuries claimed and questions of causation. The applicant’s mother’s evidence was important on these issues as well, because of her close connection with the applicant both before and after the accident.
[21]Reasons [1]–[32].

Beginning with the applicant, the judge provided a detailed description of the way in which the applicant gave evidence and answered questions in evidence-in-chief, cross-examination and re-examination. The judge, who had the opportunity to make extensive observations of the applicant, said:

Ms Davies demonstrated considerable pain and discomfort at times, grimacing and sometimes making audible sounds suggesting pain. Still, on other occasions she could sit for quite lengthy periods of time without too much evident discomfort at all. She varied between being a little dissociated, to being very engaged and animated. She was almost always articulate, and she was generally polite. She seemed to have no real difficulty understanding questions. At times she would give a very long-winded answer to a direct question and needed reminding to come back to the point.
But, contrary to the claimed memory deficits brought about by the high levels of her medication, she purported to be able to recall minute details of the medications she had taken each day over preceding days. She also purported to recall events of pain, visits to shops, visits to particular doctors, etc, over many years. At other times she dismissed questions, saying that she was unable to recall. What was most surprising was not the things she could not recall, but the things she could. They almost always related to incidents of pain, or injury, or illness, or a doctor’s consultation.[22]

[22]Ibid [33]–[34].

The judge noted that there were significant instances where the medical notes that were in evidence did not corroborate the applicant’s evidence.[23] He also observed that there were occasions when, for the purpose of the applicant’s work-related stress claim, the applicant gave an account in which she was untroubled by any physical limitation due to the motor car accident.[24]
[23]Ibid [38].
[24]Ibid [41].

Having analysed the applicant’s evidence, the judge said:

Unfortunately, having heard all of her evidence, on the issue of what were her real symptoms at specific times I felt that either Ms Davies had no reliable recollection or she was prepared to say whatever was most helpful for the particular claim at hand whether or not that stemmed from actual recollection. Perhaps that may be explained by a natural desire to pin responsibility for life’s misfortunes on some tangible event. Either way, I treat her account with real caution.
For a combination of reasons, I am sceptical about accepting Ms Davies’ account of matters where it is not corroborated by objective evidence. That combination of reasons includes:
·her tendency to embellish and re-construct,
·the distortions in memory that are likely to have crept in due to lapse of time,
·the distortions in memory from the long term effects of massive pharmacological intake, and
·an inclination to try to attribute her troubles in life to some external event.[25]

[25]Ibid [43]–[44].

Turning to the applicant’s mother, the judge found her to be ‘generally straightforward and candid’ when giving her evidence.[26] He said, however, that it would be ‘incongruous’ if the applicant and her mother had not discussed at length their individual recollections of significant events relating to the accident and subsequent injuries.[27] We interpolate here, so far as the applicant’s case at trial was concerned, the critical evidence that was given by the applicant’s mother concerned an episode of very severe left knee pain that the applicant’s mother said occurred one night within days of the motor car accident. This evidence was of significance for the purpose of considering whether the motor car accident was a cause of the applicant’s subsequent left knee injury.
[26]Ibid [45].
[27]Ibid [46].

After describing the applicant’s mother’s evidence and the matters to which we have referred, the judge said:

I am not satisfied that Mrs Davies retains an independent and reliable recollection, in 2016, of the timing and sequence of events surrounding her daughter’s complaints of specific symptoms back in 1995, 1996, 1997 etc. So, on those critical matters of timing of the occurrence of symptoms, I am not prepared to regard Mrs Davies’ recollection as necessarily corroborative of her daughter’s account where her recollection does not sit comfortably with other objective evidence. In Mrs Davies’ case, my lack of conviction stems not so much from any doubt as to her sincerity, but rather as to the reliability of her recollection of events that took place so long ago.[28]

[28]Ibid [50].

Having analysed the evidence of the applicant and her mother in the way that he did, the judge then, unsurprisingly, concluded that in determining the issues in dispute between the parties he would pay particularly close attention to the contemporaneous records of events (medical notes, contemporaneous medical reports, relevant claim forms and related documents).[29]
[29]Ibid [51].

Applicant’s submissions

In argument, senior counsel for the applicant concentrated on the judge’s conclusions in respect of the applicant’s mother’s evidence. No specific criticism was directed to the judge’s description and conclusions about the applicant’s evidence (other than to complain about its non-acceptance, in circumstances where it was said to be corroborated by the applicant’s mother’s evidence). Having read the applicant’s evidence, we can understand why senior counsel’s focus in argument was not on the judge’s treatment of the applicant’s evidence. Specifically, we see no error in the way in which the judge described the applicant’s evidence; nor any error in the conclusions the judge reached in respect of it.

The applicant, however, took issue with the judge’s observation that it would be ‘incongruous’ if the applicant and her mother had not discussed at length their individual recollections of significant events relating to the accident and subsequent injuries. The applicant submitted that this conclusion should not have been made — particularly in circumstances where no such suggestion was put to the applicant’s mother in cross-examination. The applicant submitted that the judge should have concluded that the applicant’s mother was ‘a thoroughly honest witness with an accurate recall of events over a long period of time’.

Analysis

There is nothing in the applicant’s complaints about the judge’s treatment of the evidence of the applicant and her mother, or the judge’s conclusions in respect of that evidence. The observation that it would be ‘incongruous’ if the applicant and her mother had not had considerable discussion about the accident and the applicant’s injuries over the 20 year period between the accident and the trial is hardly one that could be cavilled with, given the closeness of the applicant and her mother and the substantial period during which they have lived together since the accident. In any event, the judge’s impugned observation did not lead anywhere other than to the obvious conclusion that the judge would be very cautious before being satisfied that the applicant’s mother retained an independent and reliable recollection of the timing of particular matters that occurred up to 20 years in the past.

The judge, having carefully analysed the evidence of the applicant and her mother, concluded that he would approach his fact-finding by paying particularly close attention to contemporaneous records. We see no error in the judge’s approach. While we have not had the benefit of seeing the applicant or her mother give evidence, having read the transcript, we think that the judge’s approach was, with respect, eminently sensible and correct.

Causation principles

Having dealt with the evidence of the applicant and her mother, the judge then turned to the question of causation. In describing the applicable legal principles, the judge conducted a detailed analysis of relevant authority including Watts v Rake,[30] Purkess v Crittenden,[31] I.C.A.N.Z. v Murphy,[32] Malec v J C Hutton Pty Ltd,[33] March v E & M H Stramare Pty Ltd,[34] Seltsam Pty Ltd v Ghaleb,[35] Strong v Woolworths Ltd,[36] Wallace v Kam,[37] and Smith v Gellibrand Support Services Inc.[38]
[30](1960) 108 CLR 158.
[31](1965) 114 CLR 164.
[32](1973) 47 ALJR 122.
[33](1990) 169 CLR 638.
[34](1991) 171 CLR 506.
[35][2005] NSWCA 208.
[36](2012) 246 CLR 182.
[37](2013) 250 CLR 375.
[38](2013) 42 VR 197.

The applicant makes two complaints about the judge’s analysis. First, it is asserted that the judge’s analysis shows that the judge adopted the ‘but for’ test as a complete test for causation. Secondly, it is asserted that the judge failed to properly determine causation, in that he failed to ask himself, in respect of each contested injury, whether the motor car accident was a cause of the injury.

There is nothing in the applicant’s complaints. First, in the course of his analysis the judge observed that ‘the cause of a particular occurrence is a question of fact that must be determined by applying common sense to the facts of each case’.[39] Secondly, the judge also observed that ‘to establish liability, the tortious defendant’s conduct need not be proved to be the sole cause but only to have materially contributed to the harm’.[40] Thirdly, a fair reading of the whole of his Honour’s reasons for judgment discloses that, in determining whether the motor car accident was a cause of each of the contested injuries, the judge did not err in either of the ways asserted by the applicant.
[39]Reasons [55].
[40]Ibid [58(a)].

Finally, the matters referable to the applicant’s complaints on the question of causation do not, in any event, preclude this Court from considering whether on the whole of the evidence a particular injury was caused by the motor car accident, or from dealing with the question as a matter of common sense and on the basis that in order to establish causation the motor car accident only had to be a cause of the relevant injury.

The lower back injury

The applicant claims that she suffered injury to her lower back in the motor car accident which has caused her significant ongoing pain since that time.

In her evidence in chief, the applicant said that following the accident it became increasingly difficult to sit at her desk at work for extended periods of time. She suffered a lot of pain in both her lower and upper back. She also suffered pain in her left knee at night. By the time she stopped work with Centari on 24 June 1996, her lower back and left knee were the parts of her body causing her the most difficulty. The pain in her back was present both when she worked at her desk and when she left it. She said she attempted to work as a receptionist in Eltham for around two weeks but could not sit at her desk for extended periods of time.

By 1997, she was feeling stronger pain in her lower back. The pain in her back would respond a little to medication such as Panadeine Forte, but essentially despite reference to a series of specialist medical practitioners over a number of years, and despite increased medication, it has continued unabated.

There is no doubt that the applicant suffers from degeneration of the lower lumbar spine. A series of MRI reports from 6 November 1998, 14 February 2006, and 4 July 2013 have confirmed disc degeneration at the lumbo-sacral junction. The 2013 report states:

L5/S1:
Disc desiccation with moderate loss of disc space height and Modic type 2 endplate change. Mild, broadbased, posterior disc bulge combines with bilateral facet joint hypertrophy and degeneration to reduce moderate bilateral exit neuro-foraminal narrowing.
Conclusion:
L5/S1 spondylosis and moderate bilateral exit neuro-foraminal narrowing without frank stenosis.

Furthermore, the weight of medical opinion is that this degeneration may possibly have been aggravated by the motor car accident. The fundamental difficulty which the applicant faces is that she did not persuade the trial judge that she was an accurate historian as to the onset or nature of her lower back pain. There was no compelling before and after picture of the onset of lower back pain following the motor car accident.

Insofar as the applicant relies on medical opinion favouring the view that the motor car accident did cause permanent injury to her lower back, that opinion is also premised on accepting the fact of the onset of lower back pain in the period following the motor car accident.

In our view, the trial judge was entitled to reject as unreliable the applicant’s subjective recollection of her history more than 20 years after the event, given the applicant’s presentation as a witness, and the medical evidence as a whole.

The judge was required to assess the evidence as a whole in forming a view as to the probable history of lower back pain. In part, that evidence involved the recollection of the applicant and her mother. In other parts, it turned upon documentary records of the applicant’s medical history and upon the opinions of medical experts both in written reports and as explained in the witness box.

Because the applicant submitted that the trial judge was in effect bound to accept the opinion of the orthopaedic surgeons called on behalf of the applicant in this case, it is desirable to say something further in a preliminary way about that submission. First, the ultimate judgment as to causation of injury was a question for the judge. The fundamental principle was stated in Ramsay v Watson:

That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves ‘Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?’.[41]

[41](1961) 108 CLR 642, 645.

In Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh, Lord President Cooper said:

Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court … Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.[42]

[42]1953 SC 34, 39–40, cited with approval by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 729–30 [59].

Secondly, insofar as medical opinion turns essentially upon objective evidence such as medical imaging, it may be more readily accepted that such evidence is more reliable than may be the case where the opinion turns upon observations made of a patient made on only one or a limited number of occasions. In the present case, the medical imaging and investigations placed before the Court were essentially equivocal in terms of the causation of the applicant’s lower back condition, but on one view were very materially probative of the causation of her left knee condition.

Thirdly, as the trial judge explained in the course of his Reasons, the passage of time between the motor car accident and trial and other factors gave rise to a real sensitivity as to the credibility of the history supplied by the applicant to a number of medical experts and the question of the reliability of opinions based on that history. In this regard, there were also material differences in the evidence comprising history relevant to the opinions expressed with respect on the one hand to the alleged injuries to the lower back and on the other with respect to the left knee.

Fourthly, insofar as expertise is concerned, we accept that in the circumstances of this case, the opinion of orthopaedic surgeons concerning the knee injury might be regarded as having particular weight. Insofar as the alleged back injury is concerned, however, we would regard the opinion of the neurosurgeons and neurologists who treated the applicant over the years as the opinions which, on their face, might be expected to carry the greatest weight. Once again, there is a clear distinction between the evidence bearing on the alleged lower back and knee injuries.

A further preliminary matter should also be mentioned. Reference was made by the applicant both in the proposed grounds of appeal and in her submissions to the decision of this Court with respect to the preliminary issue of serious injury raised by the gateway provision contained in s 93(4) of the Transport Accident Act 1986.[43] Whilst it was open to the applicant to argue her case by reference to the reasoning of the Court of Appeal, the trial judge was bound to decide the case on the whole of the much more extensive evidence presented to him and he was not (as the applicant appeared to suggest) bound in any way by the preliminary decision.
[43]Davies v Nilsen and Transport Accident Commission [2014] VSCA 278.

In order to evaluate the whole of the evidence, the trial judge in the first instance, analysed carefully the contemporaneous records made by those involved in treating the applicant together with a report obtained on behalf of the TAC for medico-legal purposes. The trial judge summarised the outcome of his analysis with respect to the records for the period in and between 1995 and 1997 as follows:

So, by the end of 1997, two full years after the motor vehicle accident, the picture presented by the medical notes, reports and records, in substance, was this:
·Immediately after the collision, Ms Davies had reported a sore left shoulder, sore neck and upper back with pain into her left arm, and sore knees; was treated with physiotherapy and Panadol; and was absent from work for about two weeks.
·Some mid/upper back pain was reported to her doctor in March and May 1996, and lower back and improving neck and left arm symptoms were reported to Mr Brearley in mid-September 1996. No further knee symptoms were recorded until 27 September 1996 when a note was made of sleep disruption due to left elbow and left leg pain, and (in October) when reference was made to neck, back and left knee symptoms treated with anti-inflammatory medication.
·Otherwise, between the date of the collision and May 1997, the medical notes and reports were largely dominated by symptoms and treatment associated with stress and depression attributed to Ms Davies’ workplace environment and her termination from employment.
·Ms Davies’ stress condition revived symptoms that had previously been experienced before the car accident, labelled as chronic fatigue syndrome, with the presenting manifestations including bowel spasms, nausea, vomiting, diarrhoea, sleeplessness, constant fatigue, poor concentration, crying, sad mood and lack of appetite.
·When attention was eventually paid to her residual symptoms from the car accident, in about May 1997, they consisted of some tenderness in the neck, left elbow and mid/upper back insufficient to cause any work incapacity: her weight at that time was recorded as being above 86 kgs but about a month later the notes also indicated she was (again) suffering from sleep disturbance due in part to left knee issues.
·By mid-1997 her doctor had begun to prescribe her stronger pain relief, Panadeine Forte, and sleeping tablets.
·Ms Davies continued to be off work, her doctor regularly supplying her with a DSS certificate to obtain some form of financial benefit.

Significantly, in my view, there is a disparity between the lack of contemporaneous reportage to doctors in 1996 of any physical symptoms from the motor car accident causing any appreciable work incapacity, and the evidence Ms Davies gave to this court as I summarised earlier at [86].
On the objective evidence, which I find more reliable, the probable cause of her ceasing work, and remaining off work, from June 1996 through to the end of June 1997 had little if anything to do with neck pain, low back pain or knee pain, and everything to do with mental stress and accompanying chronic fatigue-type symptoms. Further, I do not accept that Ms Davies’ stress and fatigue symptoms cleared up almost as soon as the WorkCover claim was resolved, as Ms Davies suggested. Moreover, the alleged ‘dramatic’ intensification in 1997 of her low back and left knee symptomatology, once her WorkCover claim was settled, was unexplained by any physical cause and is only partially supported in the clinical notes.[44]

[44]Reasons [165]–[167].

In our view, these conclusions were well open to the trial judge and accorded with the weight of the evidence.

Mr Kenneth Brearley

The principal attack made by the applicant upon the judge’s conclusions concerning the alleged development of lower back symptoms in the period following the motor car accident was founded upon the report of Mr Kenneth Brearley, a surgeon, who saw the applicant on behalf of the TAC on 13 September 1996 and reported to the TAC at that time.

Mr Brearley took a history with three significant components:

(1) First, the applicant told Mr Brearley that on the morning following the motor car accident she saw her local doctor ‘complaining of pain in the neck and left shoulder and in the lower back.’ The applicant thus told Mr Brearley that she had suffered from lower back pain immediately following the accident and that she had complained of lower back pain from the outset of her treatment.

(2) Secondly, the applicant told Mr Brearley that, following her return to work after some two weeks, she had required odd days off because of back pain.

(3) Thirdly, the applicant said that she had constant discomfort in the lower back which was worsened by long standing and sometimes by long sitting. She also said she developed lower back pain after much walking or exercise. Sometimes she had a shooting type of pain down the back of the right buttock. At times she had spasms of pain in the back when lying flat.

On examination, Mr Brearley found no deformity or tenderness of the thoraco-lumbar spine. Movements of the back showed a good range of flexion and extension but side bending was partly restricted. Straight leg raising was to 80 degrees on both sides. All deep reflexes were normal and sensation was normal. The applicant told Mr Brearley that she had had x-rays of the neck, left shoulder and thoraco-lumbar spine and had also had a CT scan of the lumbo-sacral spine. She had been told the x-rays and scan were normal.

Mr Brearley noted that the applicant had good mobility of the spine and did not think any treatment program was required. Mr Brearley expressed the following view as to the applicant’s prognosis:

The injuries to her thoraco-lumbar spine and to her neck are soft tissue only. All X-rays have been negative. Accordingly, this musculoligamentous injury should resolve completely with the passage of further time and finally, there should be no residual disability resulting from this accident.
She was off work for two weeks after the accident and then resumed part time and worked up to full duties. However, she says she had difficulty with her employer, who put increased demands on her. She had to stop work about two months ago as she was starting to develop symptoms of recurrence of her chronic fatigue syndrome.
In my opinion, she is fit to return to her former job, in full. It seems unlikely she will do this because of the present bad relationship between her and her employer.

I do not think she will suffer any harm from engaging in her normal work, or in normal daily living activities. No restrictions are necessary and in fact she should be encouraged to do as much as she can.

The applicant submits that the report of Mr Brearley is important in two respects. First, he diagnosed lumbar spine injury on 13 September 1996, and secondly, he took a history of back-related problems at work which supported the applicant’s credit. In turn, the applicant submits that there was no good reason to reject the evidence contained in Mr Brearley’s report.

We have already set out the trial judge’s conclusions concerning Mr Brearley’s report at [328] of his Reasons but, for convenience, we shall repeat them:

I do not know what to make of her complaint to Mr Brearley in September 1996 of having had constant discomfort in the lower back causing spasms down her right buttock and interfering with her work. I am simply not persuaded as a matter of probability that she did have those symptoms. Her account of her state of health to Mr Topp, and the medical records of St Helena’s, do not support that history. Dr McPherson, her treating general practitioner, made no mention of any such symptoms in his report of May 1997 when he wrote specifically about her motor accident injuries, referring only to mild intrascapular discomfort. Further, her tendency (as I have found her to have) to give an account of her health that might assist the claim in question, whether it be entirely accurate or not, causes me such doubt that I would not accept what she told Mr Brearley without some degree of corroboration from other objective evidence. There is no other corroboration.[45]

[45]Ibid [328].

In our view, the judge was correct to conclude that the history taken by Mr Brearley is inconsistent with the evidence as a whole as to the initial course of the applicant’s symptoms for the following interrelated reasons:

(a) the contemporaneous records made by the applicant’s treating doctors do not support that history and no evidence was called from any of the medical practitioners who treated her during the period of some eight years following the motor car accident;

(b) the history was taken at a time when it is apparent the applicant was under significant psychological stress and suffering very marked fatigue symptoms, anxiety and depression following the termination of her employment with Centari;

(c) the opinions of the specialist consultants who saw her for treatment purposes in the following eight years provide a substantial basis for doubting the objective nature of the applicant’s back pain and provide support for the view that it was psychogenic.

We shall say something more about each of these considerations.

(a)The contemporaneous records of the applicant’s history made by her treating doctors and the failure to call evidence from treating medical practitioners

As the trial judge found, the applicant did not report pain in the lower back to her treating doctors immediately following the accident or during the first six months following the accident. Clinical notes made immediately after the accident in November 1995 certainly do not record complaint of lower back pain. Nor does Dr Gary Rose’s report to the TAC of 5 December 1995.

It is true that some of the clinical notes made over the ensuing six months refer ambiguously to back pain which might include pain either in the thoracic or the lumbar spine, but although Dr McPherson had died and could not give evidence at trial as to contemporaneous notes made by him, the failure to call other practitioners (such as Dr Gary Rose and Dr Catterall) who saw the applicant during this period or to call evidence from Ms Moore, who saw the applicant regularly for the purposes of providing physiotherapy, was left unexplained. In these circumstances, any ambiguity in the notes cannot readily be resolved in the applicant’s favour.

Moreover, the report of Dr McPherson to the TAC in May 1997 purports to be comprehensive and simply does not refer to lower back symptoms.

Likewise, the records relating to the circumstances in which the applicant ceased work at Centari do not refer to lower back pain or difficulties at work arising out of such pain as described to Mr Brearley. As we have already noted:

·the applicant did not refer to difficulties at work with respect to lower back pain in the statement she made to a WorkCover investigator on 27 June 1996;
·the applicant did develop chronic fatigue syndrome symptoms at the time she ceased work with Centari;
·the report of Dr McPherson of 15 August 1996 refers only to psychological damage arising out of her employment with Centari and makes no reference to back problems at work;
·no reference was made to continuing back pain when she saw Dr Shan in March 1996;
·a report of 6 March 1997 by Dr McPherson given in the context of the applicant’s WorkCover claim made no reference to back problems at work;
·the applicant required 16 counselling sessions with Mr Wilks for symptoms of anxiety and depression following the cessation of her employment. Once again, Mr Wilks was not called to give evidence;
·the evidence relating to the circumstances in which the applicant alleged her work caused her problems of stress simply does not reflect contemporaneous complaints of lower back pain.

The applicant makes specific reference to a file note made by Dr McPherson on 3 June 1997 which was addressed with commentary by the trial judge at [161]–[162] of his Honour’s Reasons:

On 3 June 1997 Dr McPherson recorded in the clinical notes that the court case with WorkCover had finished. As for presenting symptoms on that day he noted:
1           Back pain
2           L leg
3           L elbow

An arrow to the words ‘Cedar Court’ may suggest consideration was given to a referral to a rehabilitation centre. A further arrow to the words ‘TAC’ and ‘MVA 23-11-95’ clearly indicated a connection with the motor car accident.
There was a further arrow leading from the description of the three symptoms to some notes which as best I can make out read as follows:
During the day cannot stand, sit for extended periods. Not problem with bending but being ‘set in position’. Not sleeping well at night. (…[?] knee discomfort. Was only at night and now is during the day). ELBOW is just at night.

The doctor prescribed a sleeping tablet and noted a ‘new certificate retrospective to 24 April 97’.[46]

[46]Emphasis in original.

It is submitted that the trial judge erred in failing to conclude that the back pain referred to in the file note was lower back pain. The note was made only very shortly after Dr McPherson’s report of 19 May 1997 which makes no mention of complaints of such pain but specifically refers to discomfort between the shoulder blades.

The trial judge was not bound to conclude that the note of 3 June 1997 related to lumbar back pain and, even if it is read in this way, we are not persuaded that it would provide a satisfactory basis for overturning his overall conclusions.

(b) The context of psychological stress

Importantly, whilst the contemporaneous records do not support the conclusion that the applicant suffered from lower back pain following the accident, or suffered ongoing lower back pain following her return to work, they do establish that the applicant suffered something in the nature of a breakdown at the time she ceased work with Centari. Mr Wilks expresses the opinion that the applicant developed a moderate/severe anxiety-depression disorder. Taken as a whole, Dr McPherson’s reports also make clear that at the time of her departure from work the applicant developed a relatively marked anxiety and depressive condition during the period between the motor car accident and mid 1997.

(c) The nature of specialist opinion between 1997 and 2004

Between 1997 and 2002, Dr McPherson prescribed medication for the applicant’s lower back pain and referred her to a series of medical specialists. The reports from these specialists relate to dates subsequent to the consultation with Mr Brearley but taken together they further support the view that there must be real doubts as to the objectivity of the applicant’s account of the symptoms which she gave to Mr Brearley.

·In November 1998, the applicant was referred to Mr Christopher Thien, a neurosurgeon. Mr Thien obtained an MRI report which concluded that the applicant suffered from early L5/S1 degenerative disc disease with no evidence of left nerve root compression. The applicant was reviewed by Mr Thien in April 1999. No evidence was called from Mr Thien and no report relating to the course of the treatment given by him was produced. But the inference seems clear that he did not consider the applicant’s lumbar spine required active treatment.
·On 25 March 1999, Dr Lynette Kiers, a neurologist and clinical neurophysiologist, reported to Dr McPherson:
Nerve conduction studies were normal with the exception of mild reduction in the peroneal motor amplitude. Muscle sampling was normal with no electrophysiologic evidence of a left L5/S1 radiculopathy.

As the trial judge observed, when the result of the nerve conduction studies was combined with the results of the MRI investigation, they pointed persuasively to the absence of any nerve root impairment in the lumbo-sacral spine.
·On 18 November 1999, the applicant saw Professor Jeffrey Rosenfeld, a neurosurgeon. He reported as follows:
She is now completely disabled with pain, and her life seems to be in a total mess. She has [no] social life and cannot go out, and says she cannot even do her gardening. She can’t stand at the supermarket. She started swimming but this aggravated her pain. She has seen a psychologist in the past, and I note she is also on social security benefits. She has never been to a chronic pain clinic. She also said that she has frequent headaches which she describes as migraines. The main pain involves her lower lumbar region but extends up into the lower thoracic region, a little into the buttocks and legs like a spasm, but that the pain is continuous. The main pain is in the central lumbar region spreading out to each flank. She also describes an intense pain in the left knee under the kneecap, which started within two months of the accident and the low back pain started immediately after the motor vehicle accident. She is unable to sit for any length of time and had to give up her work as a manager in a computer company.
On examination, she was very histrionic with intermittent spasms causing grimacing and stiffening of all of her muscles. She was walking with a slight limp but she was able to get on and off the examination couch with reasonable facility. She could not bend forwards easily to do up her shoes and her mother had to help her with this. She would not relax or straighten her legs properly for me to examine her, her straight leg raising was about 60º on each side but 90º when she was sitting with her legs outstretched with her back at 90º, indicating a significant element to the muscle spasm. The power of her lower limbs was intact. Deep tendon reflexes were normal, with downgoing plantar responses, and sensation was grossly intact. There was diffuse lumbar tenderness spreading across into the flanks on palpation.
Unfortunately she did not bring her MR scan with her, because she said she could not find it, but clearly there is no major structural problem in the MR scan, based on the printed report.
She is clearly a chronic pain cripple. I believe that the best way to handle her situation would be to place her in a chronic pain clinic such as the new public clinic at St Vincent’s Hospital. I can initiate the referral if you like, but I wanted to see what you thought about this first. I believe that most her problem [sic] is psychological or psychiatrically based, and that it will be important for her to have psychotherapy on a regular basis.
I think her future is fairly bleak and she is likely to lead a life of chronic pain. She is already unfortunately attracted to opiates and probably dependent on them. I certainly do not see any role for surgery her [sic].[47]
[47]Report of Professor Jeffrey Rosenfeld dated 19 November 1999.

It can be seen that this report attributes the applicant’s principal problems to a non-organic basis. Further, the history recorded was one of immediate lower back pain following the accident followed by substantial lower back problems at work. The trial judge commented on this report as follows:
By this stage, almost exactly four years after the accident, Ms Davies had reconstructed her past. For example, as she did in evidence in court, she evidently explained to Professor Rosenfeld that her reason for giving up work in the computer company was because she was unable to sit for any length of time. She also must have told the doctor she had low back pain starting immediately after the motor vehicle accident and intense pain in the left knee starting within two months of the accident. A thorough examination of the clinical notes and other contemporaneous records reveals that that history is unlikely to be accurate.[48]
[48]Reasons [186].

·Following receipt of the advice of Professor Rosenfeld, the applicant was referred to St Vincent’s Pain Clinic.
·In June 2000, Dr John Lloyd, the director of the Department of Neuropsychiatry at the Royal Melbourne Hospital, saw the applicant. The history taken by Dr Lloyd contained the following:
Initially neck and knee were hurting, but she resumed work, although needing to be home early due to gradually developing back discomfort. Her back problem steadily deteriorated with pain in the lower back spreading to the buttocks and to the hips, back spasms, pain in the left elbow occasionally and her left sided knee pain which would often be worse at night. She has been unable to work since the latter part of 1996 or 1997.

Ultimately Dr Lloyd expressed the opinion:
Diane is presenting with a chronic pain syndrome which may well have elements of somatoform pain disorder and I note the earlier diagnosis of chronic fatigue syndrome which of course has a very strong overlap with somatoform symptomatology and depressive symptomatology. She did not appear to be depressed as such at the present time.

In psychiatry, somatisation is the neurotic displacement of emotional conflicts onto the body, resulting in physical symptoms or complaints. Dr Lloyd’s identification of a strong overlap between chronic fatigue syndrome, somatoform symptoms and depressive symptomology is particularly problematic for the applicant’s case because it provides a differential diagnosis for her presentation after 1997. Like all the treating specialists who saw her in the years following the accident he was not called to give evidence.
·In February 2001, the applicant was referred to a physician, Dr M R Stewart, to whom she reported chronic lower back pain radiating into her left knee. Dr Stewart concluded:
So Ms Davies has chronic fatigue, ? post viral, and a chronic pain syndrome with little to suggest significant pathology.
Hopefully her analgesia can be addressed at St. Vincent’s Pain Clinic, but a trial of Tegretol or Epilum might be of use.
I doubt that have much to offer [sic], but I did ask her to have autoimmune serology, LH/FSH and oestradiol and Prolactin levels, and repeat vitamins C level with iron studies, B12 level and vitamin D. Difficulty entrenched, and I note Dr Oldfield’s correspondence.

Once again, Dr Stewart’s conclusions that the applicant suffered from a chronic pain syndrome with little to suggest significant pathology do not assist the applicant’s case. And once again, Dr Stewart regarded the history of chronic fatigue syndrome (for which Dr Oldmeadow had treated the applicant years before) as of some significance. Once again, Dr Stewart was not called as a witness to further explain these matters.
·In March 2001, the applicant was seen by Dr David Vivian, a musculo-skeletal physician specialising in pain management and practising at the Barbara Walker Centre for Pain Management at St Vincent’s Hospital. Dr Vivian recorded the applicant’s present complaints as including ‘low back pain, nearly always present’.
The applicant was also seen by a physiotherapist and psychologist at the Centre. Dr Vivian advised that the combined opinion of those who had assessed the applicant was as follows:
We all felt this woman would benefit from the START program. She needs considerable amounts of cognitive behavioural therapy associated with an activity program.
I told her that despite the fatigue, she needs to exercise. Benefits would include weight loss, increased flexibility, improvement of the immune system, prevention of osteoporosis etc.
I told her that the pain she had is not indicative of degenerative processes, or anything to worry about. I explained to her that the MRI findings including the pars defects are of no relevance. These abnormalities occur in the pain-free population and are not precursors to severe degenerative pain.
…
She needs to come off her medication. This may well take a program to do so, but the medication will be making her more fatigued, and will decrease her ability to exercise. If she can come off medication prior to the program, well and good. If not, she will come off it in the first week of the program.
In the meantime, she will see the physiotherapist a few times for some goal setting in respect of exercise.
Basically if she does not get through such a program, she has nowhere to go, and will spend the rest of her life depending on her mother and others. Her mother is concerned about the problem. They need to live close to each other so she can care for her mother. I think Diane needs to find alternative accommodation and she needs to spend far less money on it, in order that she can spend money on other activities. I do not think the chiropractic treatment has much to offer her except her exercise advice.

Once again, this report does not support the applicant’s case in respect of aggravation of spinal degeneration.

As the trial judged noted, Dr McPherson retired from practice in April 2002. Thereafter the applicant was treated at St Helena’s first by Dr Grant Barham and then from 2004 onwards by Dr Penny Gaskell.

Both Dr McPherson and Dr Barham are now deceased. Nevertheless, none of the treating doctors prior to 2004 (including other doctors St Helena’s and all of the treating specialist medical practitioners) were called to give evidence. The trial judge made the following findings on the evidence as to the course of the applicant’s symptoms and treatment up to 2004.

Building on what has previously been summarised and noted, and acknowledging that further investigations and opinions are yet to be considered, by this point in time the following provisional conclusions can be drawn from the evidence:
·A misdiagnosis in April 1998 of disc prolapse and nerve root compression gave an unfounded cause for belief that Ms Davies had some significant disc pathology in her lumbar/sacral spine as providing a basis for her felt-pain in her lower back and left knee.
·In turn, that diagnosis may well have contributed to the perceived need for prescription of stronger pain-killing medication, including, by early 1999, opiate-based analgesics.
·All the while, Ms Davies’ fatigue, lack of work and other activity coincided with significant weight gain exacerbating existing joint problems.
·Depression, overlapping with her chronic fatigue condition, recognised by Dr McPherson as having re-emerged as early as mid-1996, became increasingly prominent and was seen as having an inter-relationship with her physical symptoms.

A:It will reduce.
Q:I’m sorry?
A:It’ll reduce the —

In re-examination, Mr McLean said:

I guess sometimes when we — if in the car accidents, and I guess that’s what we’re talking about — talking about, and we — we get a blow to the knee and we damage the cushioning of the — of the joint, it depends on whether that damage to the cushioning actually causes a split or a breakdown the — immediately or it just bruises and damages the — what’s called the basal layer. If we damage the basal layer then we may get over our initial pain, irritation, bruising and things, but the cushioning breaks down at a sooner stage and then we go and seek the doctor’s opinion. So we are — we are often seeing people following that at a period between three, twelve months or so following an injury from direct blow.

Mr McLean was taken to the clinical note entry from St Helena’s of 23 November 1995 which reads, ‘hit both knees’, and he said that was a history of trauma to the knees from which the applicant developed bruising and swelling. Mr McLean was also taken to the clinical records of October 1996, and he said that you would only get an x-ray done if there were some symptoms in the knee.

Dr Robert Hjorth, neurologist

As we have said, Dr Hjorth is a neurologist who saw the applicant on 23 October 2012 at the request of her solicitors. A report made at that time was tendered in evidence and he also gave oral evidence. When the applicant saw Dr Hjorth she gave a history of knee pain becoming severe a few days after the accident. He noted her present problems at that time as including pain in the left knee which ‘was not normal pain’. He further described the pain as follows:

A horrible pain that gets worse and worse once it comes. She has it most of the time. It is rare to have moments where it’s not there. This is the reason that she scratches and cuts the adjoining skin and sprays it. None of the medicines seem to help much.

Dr Hjorth expressed the following relevant opinions:

Impression
1. It goes without saying that cases like this are extraordinarily difficult.
2.Even when you know what the cause of the pain is, it can be quite hard to manage but at this stage we cannot be sure of the origin of the pain.
3.One of issues here is whether or not she has organic pain. The differential diagnosis will include some kind of psychogenic pain or even malingering. I don’t think either of these diagnoses are likely. One of the reasons I say this is that the overall pattern of pain has remained remarkably constant over 17 years. With the psychogenic pain cases that I have seen, the pain has moved around and a lot of other symptoms have developed and the whole thing has become more and more florid. I note that other doctors have diagnosed chondromalacia of the patella and that maybe part of the cause too.
4.When I saw Dianne the skin over the left knee was colder than the right and I think that she qualifies as having Reflex Sympathetic Dystrophy (Complex Regional Pain Syndrome.) The features of this condition are that the pain often bears a poor relationship to the severity of the original injury and the pain can get progressively worse. Also there is the development of signs of sympathetic over-activity (such as the coldness.)
5.Having said that I consider this problem is organic, I have to say that I am unable to suggest a treatment that is likely to help. It’s possible that spinal cord stimulation might ease the distress she has but this is a fairly big procedure and is expensive and has side effects and the ‘cure rate’ is not all that high.

…
7.There is a significant psychiatric problem here and I note that she has had treatment for depression and she is currently damaging herself (self-mutilation.)
8.In your letter you ask for advice on the question of the nerve involvement. I could not find any evidence of a full blown nerve root lesion in that there is no sensory loss that was particularly suggestive of that and the deep tendon reflexes were preserved. I think any nerve involvement must be secondary to the Reflex Sympathetic Dystrophy and you can on occasions see this.

In oral evidence, Mr Hjorth elaborated these opinions. In cross-examination, he acknowledged that he had not seen any reports with respect to x-rays or other medical imaging or the nerve conduction study relating to the applicant’s left knee. He also had not seen the arthroscopy report. He accepted that the reports of these investigations did not support a physical basis for the complaints the applicant made of hypersensitivity of skin in the area of the left knee. But he maintained that having regard to a finding of skin temperature differential over the knee which he made on clinical examination coupled with the history given to him by the applicant, his view was that the applicant suffered from complex regional plain syndrome (‘CRPS’). He identified that continuity of complaint with respect to the distribution of such pain was significant.

The essence of CRPS is pain with no other explanation and some evidence of sympathetic over-activity.

Cases like this are extremely difficult to accurately diagnose because CRPS is very complex, very hard to understand and hard to confirm by way of objective evidence.

CRPS may develop without any known injury to the patient.

Changes in the patient’s complaints and, in particular, a progression towards more florid complaints may support the view that the pain is psychogenic.

Ultimately the applicant puts her case on appeal with respect to her left knee injury squarely on the basis of the orthopaedic opinion favouring the conclusion that she suffered direct injury to the knee joint and not upon the evidence of Dr Hjorth. In essence, she submits that the trial judge was wrong to reject the orthopaedic opinion.

Mr Russell Miller, orthopaedic surgeon

Mr Miller assessed the applicant on 11 July 2013 and 31 December 2015 and provided two medico-legal reports and a short addendum report, all of which were tendered in evidence. In his first report, Mr Miller expressed the opinion that the applicant suffered a significant injury to the left knee with significant ongoing chondro pathology. He thought the prognosis for the left knee was fair to poor, and that significant weight gain complicated management of the applicant’s condition. Under a heading ‘Relationship to accident’ Mr Miller said:

On the information available to me this lady was functioning quite well until the motor vehicle accident as outlined above. I believe she has suffered organic injury to the lumbar spine, left knee and developed secondary issues with chronic pain. I believe her current clinical status reflects accident related effects. I acknowledge the difficulties in making such a determination.

Mr Miller considered the evolving condition of the left knee would lead to the probable requirement for a total knee replacement. At the time of his second assessment, Mr Miller noted there had been significant deterioration in the condition of the left knee. In his view, the prognosis was then poor.

In examination in chief, Mr Miller was taken to the findings on arthroscopy. He described how the patella runs up and down the trochlear groove and said of the reported deep vertical fissure in the trochlear groove:

Well it adds some weight to there being a traumatic event in the past. It adds some weight for that, because that’s not the typical feature of diffuse chondral pathology throughout the joint.

That court day ended with Mr Miller still in examination-in-chief. When he returned a week later to complete his evidence Mr Miller said the pattern of damage to the left knee was not typical of osteoarthritis, but is a pattern ‘suggestive of there being a significant traumatic component, particularly to the kneecap area and the trochlear where there’s the fissure’.

Under cross-examination, Mr Miller said the condition of chondromalacia patellae was seen very frequently in females including those of the age of the applicant, but the feature in the applicant’s case of the damage to the trochlear groove excludes the condition from being called chondromalacia patellae. Mr Miller disagreed that what was seen was tricompartmental degeneration, adding that the changes in the medial compartment of the left knee were not typical of osteoarthritis particularly because the meniscus was normal. He said it was a possibility that the changes were of degenerative arthritis, but it was not the typical pattern and it was an uncommon pattern, and he would be surprised if a practitioner would say it was the pattern of degenerative arthritis. Mr Miller said the condition of the applicant’s left knee was predominantly patellofemoral disease, that was where the pain was coming from on examination, and there was marked patellofemoral crepitus. He said the deep vertical split in the trochlear would rarely be part of degenerative disease.

Mr Miller further said that the typical pattern for arthritis of the knee was that it started in the medial compartment with the medial femoral condyle and medial tibial plateau, followed by tearing of the menisci and subsequent progression and spread of the disease throughout the knee. Here the menisci were normal, which did not fit that pattern. Asked why trauma induced changes would not result in damage to the menisci Mr Miller said:

I don’t think the answer to that’s known.

Mr Miller said you could get fissuring to the trochlear with osteoarthritis of the knee but the location in this instance would fit with the kneecap being hit, adding:

One could imagine that the [kneecap] sort of gets whacked into that and causes a fissure. Now that doesn’t have to be the way but it seems to fit with the available evidence much better than the alternative explanation.

In relation to causation, Mr Miller was asked the following questions:

Q:Doctor, in relation to the left knee injury, do you make the causal connection primarily because there is, on your history that’s given to you, reports of complaint of pain in the left knee immediately after the accident?
A:Not primarily. That’s a factor. So it’s not one factor, it’s all the factors that have been discussed so far and particularly the arthroscopic findings.
Q:Is the greater time lapse between the accident and any report of problems with the knee, does that suggest a lesser causal connection?
A:Well it’s a factor. It depends on when the first report was made. So was there– were the symptoms in the knee reported soon after the accident or not soon after the accident? Was the gap small or large?
…
Q:And as a result of that complaint she’s referred for x-ray after that, to the left knee. What I’m asking you, doctor, is that gap of 11 months, does that suggest a disconnect between the motor vehicle accident and the causal connection that you make?
A:It depends a bit on how you view the — his note that the knees are hit. But presumably he’s made that note because he thought it was of some relevance. So if you interpret that as being an injury to the knee and then a subsequent report — how many months later?
Q:Eleven?
A:Eleven months later. No, I think that’s consistent with the identified pathology.

Dr Kevin Fraser, rheumatologist

Dr Fraser examined the applicant on 19 January 2016 for medico-legal purposes on behalf of the respondent. Dr Fraser gave oral evidence and his report of 20 January 2016 was tendered. The trial judge noted that Dr Fraser did not view the 2010 arthroscopy report, which he did not consider would be likely to influence his opinion. He thus failed to have regard to evidence which both Mr McLean and Mr Miller regarded as highly significant. The trial judge concluded:

In my opinion, Dr Fraser’s views did not contribute to the body of evidence about Ms Davies’ conditions in any significant way.[61]

[61]Reasons [292].

The trial judge’s findings in respect of the left knee

The trial judge accepted the applicant’s evidence as to the accident circumstances and her immediate symptoms but, as we have noted, did not accept her account of substantial pain in the left knee prior to September 1996.

He summarised the effect of the contemporaneous records up to the end of 1997 in the passage from his judgment we have earlier set out when discussing the alleged injury to the lower back.[62] He also considered the records concerning the ensuing period which we have summarised above, including the report of Professor Rosenfeld.
[62]See [71] above.

The trial judge completed an analysis of the chronology of clinical notes and other documents noting in particular in relation to the left knee the report of Mr Kiellerup in May 2005, Mr Westh in July 2010, and Mr Hardidge following the diagnostic arthroscopy in late 2010.

The trial judge then referred to the reports of orthopaedic surgeons Mr McLean and Mr Miller. The trial judge expressed the following reservations in relation to Mr Miller’s evidence. First, that on the second day he gave evidence Mr Miller ‘seemed to firm up’ his opinion that trauma was responsible for damage to the applicant’s left knee demonstrated by arthroscopy. Secondly, he considered Mr Miller not as ready as other doctors ‘to make concessions of potential inconsistencies between the applicant’s presentation and objective evidence’. Thirdly, Mr Miller’s evidence that the condition of the menisci in the applicant’s left knee were consistent with trauma induced changes rather than arthritic induced changes should be discounted because Mr Miller was ‘unable to provide any explanation’. Fourthly, his Honour stated, ‘when confronted with the possibility she had no significant left knee symptoms for up to 11 months after the collision, [Mr Miller] appeared to have no difficulty adhering to the view that the accident caused her significant knee problems through to 2016’.

His Honour then expressed the following conclusions relating to Mr Miller’s evidence:

In summary, numerous factors make it difficult to be positively persuaded by Mr Miller’s view that the changes seen on arthroscopy in November 2010 are more probably explained by trauma to the knee in November 1995 rather than the natural evolution of a non-traumatic, degenerative arthritic process. They are:
• Chondromalacia patellae is a condition which is quite common, particularly amongst females.

• Ms Davies has a familial predisposition to osteoarthritic change.
• Ms Davies’ significantly increasing body weight over a lengthy period of time is an additional factor which, without specific trauma, would likely increase the severity of the disease process in the knee and the changes brought about by that process.
• Ms Davies’ right knee also shows degenerative changes, albeit not to the same degree as the left, absent any evidence of trauma.
• While there may be some features shown on arthroscopy 15 years after the accident which were consistent with trauma, those same features were not exclusively referrable to trauma but may also be explained by osteoarthritic change.
• Mr Miller was pressed to concede that Ms Davies’ knee did show features of chondromalacia patellae which could potentially account for the patella joint pathology without trauma, although maintaining his view that was unlikely to be the case.
• It is likely that Mr Miller’s assumption, based upon information given to him, that Ms Davies experienced significant left knee symptoms immediately after the accident influenced his view of the severity of the trauma experienced in the accident and, in turn, his belief that the changes seen on arthroscopy were more likely related to trauma than merely osteoarthritic change.
• Despite the welter of medical evidence adduced in the case, Mr Miller stands alone in attributing significance to the ‘patterns’ of change shown in arthroscopy as a clue to the origins of Ms Davies’ knee pathology.
• Taking account of the likelihood (as I perceive it) that Mr Miller was putting the case for Ms Davies as highly as it might possibly be put, the more acceptable interpretation of the arthroscopic findings is that they disclose advanced arthritic changes in three compartments of the knee, with the patellofemoral changes being somewhat more typical of a knee that had experienced trauma than one that had not, yet without such a disparity in occurrence that any reliable conclusion should be drawn as to the probable origin of the changes.
• Even if the damage to the groove of the trochlear was indicative of some traumatic process, the sheer lapse of time between the date of the accident and the date of the arthroscopy makes it unsafe to attribute that trauma to the car accident, particularly given there was some evidence of other falls which Ms Davies experienced in the intervening period.[63]

[63]Reasons [288].

After analysis of the medical evidence, the trial judge then moved to his overall conclusions in respect of causation. As we have said, his Honour characterised the applicant’s case both in relation to the lower back and left knee injuries as depending ‘in large part’ upon acceptance of the proposition that before the accident the applicant had no relevant symptoms but very soon after the accident she did. His Honour then expressed the conclusions which we have already set out including the ultimate conclusion:

It is most likely that Ms Davies developed symptoms of chondromalacia of the patella together with other arthritic changes in her knee. I have already stated and explained my views of Mr Miller’s opinion that the pattern of osteoarthritic change, shown on arthroscopic investigation, made it more probable that a trauma initiated Ms Davies’ left knee symptoms. I need not repeat them. She clearly has some constitutional predisposition to knee joint arthritic change. Her significant weight no doubt contributed to the progression of her left knee pathology, and the fact that she also developed arthritic change in her right knee tends to make more likely the role of constitutional factors in her left knee arthritic change. I am far from persuaded that but for the accident she would not have suffered this condition or her symptoms at about the same time and to about the same degree as she has in fact suffered them. So, I do not find that the motor vehicle accident caused any injury to her left knee or her right knee.[64]
[64]Ibid [333] (citations omitted).

Submissions

The applicant submitted that the uncontradicted expert evidence, cross-examined on but not effectively challenged, was that the accident was a cause of the condition of the left knee identified by the orthopaedic surgeons. While the orthopaedic surgeons, Mr McLean in particular, said that if there was a gap of 10 or 11 months before the left knee complaints in September or October 1996 this would make causation less clear, neither orthopaedic surgeon resiled from the view that the 1995 accident was a cause of the left knee condition. Assessment of whether there was a causal connection between the accident and the current left knee condition was particularly a matter within the province of the orthopaedic surgeons. It was submitted that on the evidence before the trial judge, in particular the uncontradicted evidence of the orthopaedic surgeons, the only conclusion open was that the accident was a cause of the condition of the left knee.

The applicant submitted that criticism by the trial judge of Mr Miller, which formed a basis for rejection of Mr Miller’s evidence, was not warranted. Mr Miller was not cross-examined on the basis that his view was at the extreme edge of acceptability. Counsel submitted:

He’s [Mr Miller] given his view. Whether that’s high or low is not to the point. It is his view.

Counsel submitted that Mr Miller made appropriate concessions, but maintained his view, adding:

So he’s fairly described his opinions and he has fairly admitted the possibility of others, but he’s given reasons why he rejected the others.

The applicant also submitted that there was no basis for rejecting the applicant’s mother’s evidence recalling the incident of significant left knee pain complained of by her daughter within a few days of the accident. It was never put to the applicant’s mother or the applicant that this incident did not happen, only that it happened some months later. It was submitted that in those circumstances the evidence of the applicant’s mother should have been accepted.

The respondent submitted that there should be greater emphasis on the advantage enjoyed by the trial judge in making factual findings given the length of the case and the opportunity the trial judge had to assess the credibility of witnesses and to get the feel of the case. It was submitted that the trial judge heard the orthopaedic surgeons and gained an impression of them. On the whole of the evidence, the linkage between the left knee and the accident was doubtful. Mr Miller conceded it was possible there was no linkage, and Mr McLean went further by saying the delay in complaint reduced the probability of a linkage. Even where the orthopaedic experts said as a matter of probability that the accident was a cause of the left knee condition, that issue remained one for determination by the trial judge.[65] The conclusion of the trial judge that causation was not established was not ‘glaringly improbable’, or incontrovertibly wrong, and should not be disturbed on appeal.[66] It was submitted that the trial judge heard the evidence of Mr McLean as to causation, and was entitled on that evidence and the other evidence in the case to conclude that he was not satisfied as to causation in relation to the left knee. Further it was submitted that the trial judge was entitled not to be otherwise satisfied by the evidence of Mr Miller.
[65]Dahl v Grice [1981] VR 513.
[66]Fox (2003) 214 CLR 118, 125–6 [23].

The respondent also submitted that the trial judge was entitled not to accept the evidence of the applicant’s mother as to the complaint of left knee pain made by the applicant within days of the accident. The trial judge was entitled to prefer, and to rely upon, contemporaneous medical material in determining what complaints were being made by the applicant in late 1995 and throughout 1996. This was particularly so because of the issues of fallibility of memory, objectivity and reliability which the trial judge was entitled to take into account in assessment of the applicant’s mother’s evidence.[67] If the applicant had been suffering symptoms which were serious or of concern to her, it would be expected that she would make complaint to her doctors about those symptoms. The fact that no complaint is recorded in contemporaneous records is another reason for rejecting the evidence of Mrs Davies.
[67]The Nominal Defendant v Cordin [2017] NSWCA 6 [165]–[167] (Davies JA).

Finally, the respondent submitted that whilst there was complaint in relation to the left knee in October 1996, there was very little of any significance which followed that complaint in the clinical records. The finding of the trial judge that the complaints from that point are best explained by the development of a somatic pain disorder is consistent with the view of the psychiatrist, Dr Doherty (whose view was that the applicant’s psychiatric problems were not caused by physical injury), and cannot be said to be glaringly improbable or incontrovertibly wrong, and therefore should not be disturbed on appeal.

Analysis

For the reasons which follow we accept the submission of the applicant that the trial judge erred in concluding that she had failed to establish that the accident was a cause of the condition of her left knee. First, there was no contest as to the condition of the left knee from which the applicant now suffers. That was the condition demonstrated by the arthroscopy of 4 November 2010 and found by Mr McLean on clinical examination in 2012, and confirmed by Mr Miller on his examinations in 2013 and 2015. Mr McLean and Mr Miller were not subject to challenge on the basis that there was little physically wrong with the applicant’s left knee, or that the applicant’s complaints of pain and symptoms at the time of their respective examinations or at earlier times as the condition of the left knee developed, were better explained as being part of a somatic pain disorder.

Secondly, it was not accurate to characterise the applicant’s case in relation to the left knee, as the trial judge did, as being largely dependent on the proposition that before the accident the applicant had no left knee pain, but very soon after the accident she did. Whilst it is true that the applicant put a case in that way, she also clearly relied on the intermediate position, consistent with the evidence of Mr Miller and Mr McLean, that causation was still established if there was a delay of 10 to 11 months between the initial complaints of bruising and abrasion of the knee in the accident and the next recorded complaint of pain in the left knee in the clinical records.

Thirdly, the trial judge relied on the clinical records, as he was entitled to do, as objective evidence of lack of complaint in relation to the left knee in the period up to September or October 1996 when assessing whether to accept or reject the evidence of the applicant and her mother that left knee complaints commenced shortly after the accident and then continued and worsened. Nonetheless, the clinical notes dating from October 1996 were, similarly, objective evidence of complaints and a developing chronic condition affecting the left knee which, according to the notes, was linked to the accident. There is no doubt that by October 1996 the applicant was complaining of sufficient symptoms in the left knee to warrant an x-ray investigation. The 3 July 1997 note records left leg complaints related to the motor car accident, with left knee discomfort noted as the chief reason for disturbed sleep. The note ‘was only at night and now is during the day’ suggests that the left knee discomfort had been present for some time and had worsened by the time of that attendance. The note of 2 May 1999 again links the left knee complaints to the accident. By October 2000, the left knee complaints are noted as the main problem. The note of February 2002 again links the left knee complaints to the motor car accident. In March 2003, the left knee pain is recorded as chronic. The trial judge analysed the applicant’s case on the basis of her evidence, supported by the evidence of her mother, that she commenced to suffer left knee symptoms shortly after the accident, and that those symptoms quickly became disabling. That case was rejected by the trial judge. However, the clinical notes and other contemporaneous evidence support the conclusion that from at least October 1996 the applicant was complaining of gradually increasing pain and disability affecting the left knee which ultimately developed to the stage of her current condition as described by Mr McLean and Mr Miller.

Fourthly, as was submitted by counsel for the applicant, there is no other trauma that has been identified as explaining the developing condition in the left knee. The only proposition put positively, by cross-examination of Mr McLean and Mr Miller rather than by evidence, against causation, was constitutional or genetic predisposition to arthritis exacerbated by excessive weight. Each of Mr McLean and Mr Miller rejected that explanation for the condition of the left knee as improbable. Mr McLean responded to the proposition that predisposition to osteoarthritis could explain the condition of the applicant’s left knee seen on arthroscopy as ‘taking it to an extreme’.

Fifthly, Mr McLean and Mr Miller are consistent in their descriptions of the mechanism of injury, which is itself consistent with the accident circumstances as found by the trial judge. That is, direct impact to the patella causing damage to the articular surface of the rear of the patella and the adjacent trochlear groove of the femur. Mr McLean in cross-examination stated that he took into account the mechanism of the accident when assessing the causal relationship between the accident and the left knee. Mr McLean and Mr Miller both based their opinions as to causation on their understanding of the mechanism of injury and the damage evident on arthroscopy.

Sixthly, while assessment of Mr Miller as a witness was a matter within the province of the trial judge, it is difficult to see how the judge’s criticism of Mr Miller is borne out by the transcript, particularly in circumstances where there is little difference between his opinion and that of Mr McLean. As counsel for the applicant submitted, Mr Miller’s opinion was not challenged on the basis that it was extreme and nor could it readily have been so challenged, given that his opinion was in line with that expressed by Mr McLean.

We turn then to the specific points identified by the trial judge as factors going to the credibility of Mr Miller’s opinion and observe that:

(a) it was Mr Miller who proffered that chondromalacia patellae is a common condition, particularly amongst females;

(b) both Mr Miller and Mr McLean considered osteoarthritis and weight gain an unlikely explanation for the current condition of the applicant’s left knee;

(c) it may be accepted that the applicant’s weight gain may have affected the rate of deterioration of her left knee but this does not answer the evidence of Mr Miller and Mr McLean as to the characterisation of the damage to, and condition of, her left knee;

(d) Mr McLean distinguished the condition of the right knee from the left knee and described the pattern of damage to the left knee, particularly to the rear of the patella and in the trochlear groove, as being consistent with the type of trauma sustained by the applicant in the motor car accident;

(e) the findings made on the arthroscope as explained by Mr Miller and Mr McLean strongly support the conclusion that the applicant suffered traumatic damage to her left knee;

(f) Mr Miller specifically explained why the condition of the applicant’s left knee should not be regarded as a consequence of chondromalacia patellae;

(g) it may be accepted that Mr Miller’s initial opinion was informed by the history he received about significant knee pain after the motor car accident. But his evidence as a whole squarely addressed the possibility that significant symptoms did not emerge for some 10 or 11 months. Both he and Mr McLean gave evidence that this was entirely consistent with the effects of deterioration due to trauma suffered as a result of the motor car accident.

(h) there was not in fact a welter of relevant specialist medical evidence addressing the applicant’s knee condition and explaining the relationship between the mechanism of the motor car accident, the findings on arthroscopy and the findings on clinical examination. Moreover, as we have explained, Mr Miller’s evidence was essentially consistent with that of Mr McLean;

(i) the expert evidence as to the findings on arthroscopic investigation was directly supportive of the applicant’s case;

(j) the conclusion of the trial judge that the lapse of time between the date of the motor car accident and traumatic damage to the trochlear groove observed on arthroscopy makes it unsafe to ‘attribute that trauma to the accident’ seems to ignore or give insufficient weight to the temporal connection between the accident and the history of complaints recorded from October 1996, the fact that the clinical notes record the accident as the cause of the left knee condition, the absence of any other evidence of trauma and the reasoned opinions of Mr Miller and Mr McLean as to causation.

We would therefore conclude that the weight of the evidence taken as a whole supported the conclusion that the motor car accident was a cause of the current condition of the applicant’s left knee as described by Mr McLean and Mr Miller. Giving due weight to the advantages enjoyed by the trial judge, in our view, the trial judge was, with respect, wrong not to conclude that the motor vehicle accident was a cause of the current condition of the applicant’s left knee as described by Mr McLean and Mr Miller.[68]
[68]See Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550, 558–9 [43]; Fox v Percy (2003) 214 CLR 118, 125–6 [23].

The psychiatric injuries

In oral argument, the parties agreed that if causation was established with respect to both the lower back and left knee then causation was also established with respect to the applicant’s psychiatric injuries. They also agreed that if causation was not established in respect of both the lower back and left knee then, similarly, causation was not established in respect of the applicant’s psychiatric injuries. These concessions accorded with the evidence given at trial.

Having regard to our conclusion that there is a causal link between the applicant’s left knee injury and the motor car accident, but no causal link between the collision and the applicant’s lower back condition, the issues relating to the applicant’s psychiatric injuries need to be reassessed. Specifically, it remains to determine whether there is a causal link between the applicant’s left knee condition and pain, and any and what part of, her psychiatric condition. These are not issues which this Court is, without seeing the witnesses, in a position to determine.

The resolution of the application for leave to appeal and appeal

In the light of our conclusions that the motor car accident was a cause of the applicant’s left knee injury, we will grant leave to appeal and allow the appeal. We are, however, not in a position to reassess the applicant’s damages. Moreover, the extent of the applicant’s psychiatric condition, secondary to the applicant’s left knee injury and the pain caused by that injury, needs to be re-evaluated at a hearing at which a court will have the benefit of hearing and seeing the relevant witnesses express opinions about the facts that have previously been agreed or found, the facts we have found and the facts that are yet to be found.

Conclusion

The application for leave to appeal will be granted and the appeal will be allowed. The matter will be remitted to the Trial Division for rehearing and determination in accordance with these reasons.

- - -

[2017] VSCA 202

11 August 2017