Dungan v Padash

[2021] NSWCA 66

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dungan v Padash [2021] NSWCA 66

Hearing dates:

12 February 2021

Date of orders:

23 April 2021

Decision date:

23 April 2021

Before:

White JA at [1]
McCallum JA at [64]
Emmett AJA at [82]

Decision:

1. Appeal allowed.

2. Set aside orders 1 and 2 of the District Court made on 30 July 2020.

3. In lieu thereof direct entry of judgment for the respondent in the sum of $41,965.65, such judgment to take effect as and from 30 July 2020.

4. Order that the respondent pay the appellant’s costs of the appeal.

5. Unless the parties agree as to the order which should be made as to the costs of the proceedings in the District Court, within 14 days the appellant file and serve written submission (not to exceed five pages) and any affidavit proposed to be relied upon on the question of what costs order should be made in respect of the proceedings in the District Court.

6. Within 14 days thereafter, the respondent file and serve submissions (not to exceed five pages) and any evidence proposed to be relied upon on that issue.

7. Any submissions in reply (not to exceed three pages) be filed and served within seven days thereafter.

Catchwords:

NEGLIGENCE — Causation — Motor vehicle accident — Where plaintiff diagnosed with adjustment disorder secondary to back injury caused by accident — Where back injury consisted in the aggravation of existing degenerative changes — Whether psychiatric injury remained causally related to the accident even after physical restrictions attributable to the accident subsided

Legislation Cited:

Civil Liability Act 2002 (NSW), s 32

Motor Accidents Compensation Act 1999 (NSW), s 133(2)

Cases Cited:

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Optus Administration Pty Ltd v Wright [2017] NSWCA 21

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Williams v Metcash Trading Ltd [2019] NSWCA 94

Category:

Principal judgment

Parties:

Rebecca Dungan (Appellant)
Hassan Padash (Respondent)

Representation:

Counsel:
K Rewell SC (Appellant)
R S Sheldon SC with E Welsh (Respondent)

Solicitors:
Moray and Agnew (Appellant)
Brydens Lawyers (Respondent)

File Number(s):

2020/235078

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2020] NSWDC 399

Date of Decision:

30 July 2020

Before:

Abadee DCJ

File Number(s):

2019/366667

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent suffered an injury to his lower back in consequence of a motor vehicle accident which occurred on 30 November 2016 and for which the appellant admitted liability. It was agreed that this injury consisted in the aggravation of existing degenerative changes. The respondent also claimed that he suffered psychiatric injury as a result of the accident.

The primary judge found that the physical restrictions attributable to the accident subsided within a year of the accident, but that the respondent continued to suffer from a psychiatric injury – an “adjustment disorder” – which was the result of the appellant’s negligence.

In the award of damages, the primary judge included sums for past loss of earnings and for past out-of-pocket expenses after November 2017 (that is, after the physical restrictions attributable to the accident subsided), as well as sums for future loss of earnings, future medical expenses and future lawn mowing expenses.

On appeal, the appellant contended that the primary judge erred in finding that, after November 2017, the psychiatric injury was causally related to the accident, because the medical expert evidence established that the adjustment disorder was “secondary to” the pain caused by the physical injury.

The respondent sought by cross-appeal to challenge the finding that the physical restrictions attributable to the accident subsided within a year of the accident. The respondent contended that, because the injury consisted in the aggravation of existing degenerative changes, the onus was on the appellant to provide evidence to explain how and when the symptoms ceased to be related to the accident.

The Court held, dismissing the cross-appeal (per White JA, McCallum JA and Emmett AJA agreeing), and upholding the appeal (per White JA, Emmett AJA agreeing, McCallum JA dissenting):

In relation to the appeal:

Per White JA (Emmett AJA agreeing): having found that the respondent’s mental harm was associated with his continuing pain and restriction, but that such pain and restriction was no longer attributable to the subject accident, the primary judge erred in failing to find that the appellant’s ongoing psychological symptoms were not causally related to the accident: [57].

Per White JA, obiter: section 32 of the Civil Liability Act 2002 (NSW) applies to both pure mental harm and consequential mental harm: [13]-[15].

Per McCallum JA, contra: there was an absence of definitive and precise evidence to discharge the appellant’s onus to exclude the operation of the accident as a contributory cause of the ongoing psychiatric condition: [79]-[80].

In relation to the cross-appeal:

Per White JA (McCallum JA and Emmett AJA agreeing): the evidence that any trauma caused by the accident would have resolved within 12 months was sufficiently precise and definite to displace the inference that the respondent’s pain after November 2017 was caused by the accident: [32].

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 and Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, applied.

Per White JA (McCallum JA and Emmett AJA agreeing): the primary judge was accordingly justified in finding that the respondent’s ongoing pain was explicable as the result of his degenerative condition: [38].

Judgment

1. WHITE JA:   This is an appeal and cross-appeal from an award of damages in the District Court in a personal injury claim (Padash v Dungan [2020] NSWDC 399). The claim arose from a motor vehicle accident on 30 November 2016. The appellant (defendant in the court below) drove into the rear of the respondent’s vehicle when it was stationary behind another car. The force of the impact was not such as to cause the respondent’s car to collide with the car in front. The respondent’s car was damaged but not to the extent that the police or ambulance were called.

2. There is no dispute that the respondent suffered an injury to his low back as a result of the accident. Dr Michael Coroneos, a neurosurgeon, whose report was tendered by the appellant, opined that the respondent may have experienced a lumbar soft tissue strain as the result of the motor vehicle accident. An Associate Professor Michael Fearnside, whose medical reports were tendered by the respondent opined that the respondent suffered “an aggravation of lumbar spondylosis” which was likely to be a pre-existing and asymptomatic condition. As a result of the accident the injury that was previously asymptomatic became symptomatic.

3. The appellant claimed that the respondent feigned and exaggerated his injuries.

4. The primary judge found that the respondent was not a witness of credit and that he had exaggerated his injuries. But he found that the respondent did suffer continued pain to his lower back. The primary judge found that although he accepted the respondent’s evidence that he suffered pain in his back and down his left leg, nonetheless the physical restrictions of pain attributable to the accident should have and on the balance of probabilities did subside within a year of the accident. The primary judge found that the physical restrictions the respondent suffered attributable to the accident had ceased by November 2017. By notice of cross-appeal the respondent challenges this finding.

5. The respondent also claimed that he had suffered psychiatric injury as a result of the accident. The primary judge accepted that he had done so. The primary judge accepted the report of a psychiatrist, Dr Patricia Jungfer. She opined that the motor vehicle accident caused the respondent to suffer an “adjustment disorder with mixed emotional features”. This was related to his chronic pain complaints and change in life circumstances. The respondent had formerly worked as a taxi driver but had ceased to work. He was irritable and short tempered.

6. Another psychiatrist, Dr Graham George, had diagnosed the respondent as having a “mild to moderate persistent depressive disorder”. Dr George said that “his depressive mood state was tied to his experience of pain, limitation of movement and a decrease in activity level.”

7. Dr Jungfer, whose report the primary judge preferred, did not consider that the respondent had a major depressive illness. Both psychiatrists linked the respondent’s mental condition to his continued suffering of pain.

8. Although the primary judge found that after November 2017, the respondent’s continued pain was not caused by the accident, his Honour concluded that the respondent’s continued adjustment disorder (found by Dr Jungfer) was and continued to be caused by the appellant’s negligence in running into the back of the respondent’s car. The primary judge awarded damages of $278,817.75.

9. The appellant appeals against the primary judge’s finding that the respondent’s continued suffering of the adjustment disorder was caused by the defendant’s negligence. The appellant submits that on the medical evidence, the primary judge ought to have found that the respondent’s adjustment disorder was temporally connected to the pain he continued to suffer, and because that pain suffered after November 2017 was not caused by the accident (as the Judge had found) his Honour ought to have found that after November 2017, the psychiatric illness suffered by the respondent was also not caused by the appellant’s negligence.

10. For the reasons which follow, the respondent’s cross-appeal should be dismissed and the appellant’s appeal should be allowed. Damages should be reassessed accordingly.

11. One matter should be noticed so that it can put aside.

12. The respondent pleaded that he had suffered not only physical injury, but also mental harm as a result of the accident. He pleaded that the appellant was under a duty of care to him and breached that duty. That allegation was admitted.

13. Section 32 of the Civil Liability Act 2002 (NSW) provides that a defendant does not owe a duty of care to a plaintiff to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. The “mental harm” referred to in s 32 means impairment of a person’s mental condition and includes mental harm that is a consequence of a personal injury (ss 27 and 32(3)).

14. The section applies to both pure mental harm and consequential mental harm (Optus Administration Pty Ltd v Wright [2017] NSWCA 21 at [55]; Williams v Metcash Trading Ltd [2019] NSWCA 94 at [139]). The section implements the recommendation of the Ipp Report (Commonwealth of Australia, Review of the Law of Negligence: Final Report August 2002) at 9.36:

“The Panel’s considered opinion is that

(a)    damages for economic loss resulting from the negligent infliction of mental harm should be awarded only in respect of recognised psychiatric illness, even if the mental harm is consequential on physical injury; and

(b)   such damages should be recoverable only if the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken.”

15. However, no issue was raised either at trial or on appeal as to whether the appellant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if she negligently ran into the back of the respondent’s car. That question can await decision on another day.

The cross-appeal

16. The respondent said that after the accident he went to hospital because he was in pain on the left side of his back. He said that he was told that the hospital did not have the facilities for x-rays and a CT scan and was advised to see his doctor. He consulted a Dr Iboyan two or three days afterwards, who prescribed physiotherapy and referred him for an x-ray and also sent him to see a psychologist.

17. Records tendered showed that the respondent consulted Dr Iboyan on 7 and 8 December 2016, 31 January 2017, 11, 15 and 21 February 2017. A medical certificate, apparently signed by Dr Iboyan, dated 31 January 2017 that formed part of the respondent’s motor accident personal injury claim form recorded his diagnosis of low back injury. In that form the respondent described his injuries as back pain (lower), tail bone, dizziness and upper leg pain with trouble sleeping.

18. On 7 December 2016 the plaintiff underwent an x-ray and CT scan of the lumbar sacral spine (J [7]). The report as to these scans is not in the appeal papers, but a report of Dr Zita Gacs of 10 May 2017 of a scan made on that date at Macquarie Medical Imaging records disc protrusion compressing the thecal sac at T12/L1 and L4/5 levels but without nerve compression and other disc protrusions at L3/4 and L5/S1 without nerve compression. Her conclusion was:

“There is no fracture or bone contusion. Alignment is normal. At L3/4 level, broad-based disc bulge with left lateral protrusion extending to the left foramen, slightly compromising the exiting left L3 nerve. Facet joint arthropathy. Spondylitic changes with disc bulge and disc protrusion at L4/5 level and facet joint arthropathy without nerve compression.”

19. Associate Professor Michael Fearnside provided medical reports that were tendered by the respondent. In his report of 9 September 2019 Associate Professor Fearnside opined that the respondent sustained an injury to his low back as a result of a motor vehicle accident, that injury being “an aggravation of lumbar spondylosis likely pre-existing (asymptomatic)”. Associate Professor Fearnside is a neurological surgeon. There was no significant neurosurgical spinal injury. He opined that by 4 September 2019 (the date of his report) the neurosurgical effects of the soft lumbar soft tissue strain had ceased.

20. After their reports of 9 and 4 September 2019 Associate Professor Fearnside and Dr Coroneos were provided with surveillance footage of the respondent taken in March 2018 and on 5 September 2019. The surveillance film showed the respondent moving much more freely than when examined by the doctors. Dr Coroneos said that the footage confirmed his opinion and stated that the surveillance showed the respondent moving freely and engaging in activities that were inconsistent with his claimed incapacities and restrictions. In a joint report Associate Professor Fearnside said that there were inconsistencies between the video and his findings on physical examination and it seemed likely that the respondent was not as disabled as he presented. In response to a question as to when the doctors expected that the respondent’s symptoms would resolve, they reported:

“A/Professor Fearnside is of the opinion that, assuming the Plaintiff’s veracity in his presentation, over the two years following the said motor vehicle accident, symptoms have continued and could likely continue. However, this is not the anticipated natural history of such an injury which would be to stabilise, improve or even resolve.

Dr Coroneos is of the opinion that the effects of lumbar soft tissue damage would have settled within a few weeks following the said motor vehicle accident with no ongoing symptoms.”

21. The primary judge did not accept the respondent as being a witness of credit. This was partly owing to how the respondent dealt with questions in cross-examination (J [78]-[79]), but principally owing to the surveillance evidence. As to this the primary judge said (at [75]):

“I harboured doubts about the plaintiff’s credibility. I did not regard his evidence in response to the surveillance to be plausible. The content of the surveillance footage was damaging to his credibility, showcasing as it did the plaintiff’s physical capacity to engage, without obvious restriction, in certain daily activities, including his capacity to raise his arms, walk, stand, bend his back and twist his body, which were contrary to his accounts given to various medical practitioners as well as to the Court. Contrary to the plaintiff’s evidence, the timing of the injections to his back was not temporally co-incident with the activities depicted in the surveillance footage, when reference is made to the timing of the injections in the chronology (Exhibit A) whose correctness the plaintiff attested to. I did not accept his evidence, in effect, that the surveillance merely caught him on two good days and regarded that as somewhat glib. I note, in this regard, the close proximity between the surveillance footage capturing his changing a light bulb (the September 2019 footage) to his examinations by Dr Coroneos and Associate Professor Fearnside. In the latter case, he exhibited to Associate Professor Fearnside virtual, or ‘near’ immobility in his back with movements decreased by 80% in all directions as well as limited ability to raise his left leg with sciatic pain.”

22. The primary judge’s conclusion as to the respondent’s credit was that his Honour was “… reluctant to accept his evidence unless corroborated or consistent with other facts objectively established.” (J [81]) Nonetheless, the primary judge said that he was “… prepared to accept that [the respondent] has suffered on-going symptoms of pain and is likely to do so into the future.” (J [96]).p His Honour said (at [97]):

“In relation the surveillance footage, although it falsifies the extent of the restrictions testified to by the plaintiff, in my opinion it is not altogether inconsistent with the complaint of a middle aged man who frequently suffers pain in his back and down his left leg. The activities depicted in the surveillance were not overtly strenuous. They were capable of being performed by a man in this plaintiff’s position and circumstances, being the aggravation of degenerative changes in the lower back. They show that the plaintiff may have exaggerated, but do not conclusively falsify, his evidence that he does suffer pain at certain points and that this has impeded him in his work and domestic activities. It is difficult to say whether his exaggeration was deliberate or was simply part of his make-up: his psychiatrist referred to his propensity to ‘catastrophize’. Given the gravity of the allegation, I am inclined to think his exaggeration was not such as to amount to an attempt to deceive the Court. I am influenced in this finding not only by his evidence, but also that of his wife, a witness of credit. Contrary to the defendant’s submission, her evidence was not just probative of the plaintiff’s making complaint, but also her personal observations of the plaintiff after the accident, including up to the point when she gave evidence.”

23. However, the primary judge was not satisfied that the ongoing pain about which the plaintiff complained was caused by the accident. His Honour said (at [95]):

“I consider that the view I have reached accommodates the plaintiff’s position to the extent that the defendant does not say that he is not experiencing any recent or current pain. Ultimately, however, with the defendant having furnished evidence that the physical restrictions and pain attributable to the accident should have subsided well before the hearing, the plaintiff carries the ultimate onus of proving that they did not. I am not persuaded that the pain he has experienced since the accident is currently attributable to the accident.”

24. His Honour had earlier noted that there was no dispute that the respondent had degenerative changes in his lower back or lumbar spondylosis which was aggravated by the accident (J [83]). His Honour found that:

“87   In my opinion, the defendant has discharged its evidentiary onus that the onset of pain and physical restrictions in the plaintiff’s movement that was attributable to the subject accident should have abated within a year of the incident, by November 2017. In other words, such pain and restrictions as the plaintiff has encountered beyond that period are not causally attributable to the accident. At any rate, what is material for the purpose of findings on the plaintiff’s claims under the heads of damage, in relation to the future, is that any further pain and physical restrictions are not attributable to the accident.

…

89   I am cognisant of and accept the plaintiff’s points that he had no prior back injury; that his evidence of injury to both his back and lower leg was the subject of complaint, to both his wife and also the RNSH; although, in the latter case, there was no precision as to the extent of injury. Further, although Dr Coroneos expressed doubt whether the radiological evidence supported the plaintiff’s account of pain down the left leg (see the Joint Report with Associate Professor Fearnside at Tab 35 of Exhibit 1, p 304, Answer to Q2), on balance, I accept the plaintiff’s evidence about this particular injury having regard to the consistency in which the plaintiff has complained about it.

90   The preponderance of the medical evidence suggests that the type of injury and the way in which it was suffered should have resolved itself well and truly by now. I refer here not only to the evidence of Drs Coroneos and Keller, but also the evidence of Associate Professor Fearnside who indicated that an injury of this kind would naturally have stabilised, improved or resolved (joint report, Exhibit 1, p 305, Answer to Q3). Although it is unnecessary to choose, of all of these doctors, and without the benefit of seeing them give evidence, I was perhaps most impressed with Dr Keller’s evidence, summarised earlier, which presented a balanced account. His opinion coincides with my own that such complaints as the plaintiff now has concerning his pain and physical restrictions are most likely attributable to his degenerative condition rather than the subject accident.”

25. The primary judge reasoned that on the medical evidence he accepted, the pain and physical restrictions in the respondent’s movement “should have” abated within a year of the incident, that is, by November 2017 (J [87]). The primary judge accepted the medical evidence (referred to at J [90] quoted above) that “an injury of this kind would naturally have stabilised, improved or resolved” (before November 2017).

26. The appellant’s case was that the respondent was feigning his symptoms and did not suffer any real pain. The primary judge accepted that the plaintiff was exaggerating his symptoms. But, as noted above, the primary judge nonetheless accepted that the respondent “has suffered on-going symptoms of pain and is likely to do so in the future” (J [96]) and that the surveillance was not inconsistent with “… the complaint of a middle-aged man who frequently suffers pain in his back and down his left leg” (J [97]). His Honour said that the surveillance showed that:

“… the plaintiff may have exaggerated, but do[es] not conclusively falsify, his evidence that he does suffer pain at certain points and that this has impeded him in his work and domestic activities.” (at [97])

27. The primary judge’s finding that the respondent exaggerated his pain to the doctors whose reports were tendered is not challenged. Rather, the respondent challenges the primary judge’s finding that the pain (which the primary judge accepted the respondent continued to suffer) was not caused by the accident.

28. The respondent did not dispute that there were degenerative changes to his lumbar spine that pre-dated the accident. But he submitted that there was no evidence that, but for the accident, it was likely that those changes which were asymptomatic at the time of the accident would have become symptomatic within a year of the accident. The primary judge relied upon the medical evidence that such trauma as was occasioned by the accident “should have” resolved within weeks or months of the accident. The respondent submitted that once the primary judge accepted the ongoing symptoms, the onus was on the appellant to provide evidence to explain how and when the symptoms ceased to be related to the accident. He submitted that a statement as to what “should” have happened was not evidence that answered either of those requirements.

29. The appellant submitted that the primary judge did not make a finding that, but for the accident, the respondent would have experienced the symptoms he complained of at or by some point in time. Rather, the primary judge proceeded on the basis that the respondent had continuous symptoms from the date of the accident, but concluded that after a year those symptoms had not been caused by the accident. The respondent submitted that this approach was contrary to the required approach to fact-finding expressed in Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 and Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34.

30. Although not cited to the primary judge at trial, the primary judge had regard to those decisions. His Honour said:

“85   Nevertheless, guidance may be received from authorities such as Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. A tortfeasor must take her victim as she finds him, however, where a plaintiff has a pre-existing condition (here degenerative changes in his lower back) that would ultimately likely have affected the claimant anyway, the tortfeasor should be liable only for the acceleration wrought by her negligence (Luntz, Assessment of Damages for Personal Injury and Death, LexisNexis Butterworths revised 4th ed, 2016 [2.2.1], p 207).

86   In this context, there is a practical issue concerning onus of proof. The authorities I have referred to indicate that it is incumbent upon the tortfeasor to establish by evidence the pre-existing condition and its future probable effects or actual relationship to the incapacity. That is its evidentiary onus. Thereafter, it is for the plaintiff who carries the ultimate onus of proving the extent of the injury caused by the tortfeasor’s negligence (Purkess per Barwick CJ, Kitto and Taylor JJ at 168). As to what the tortfeasor must do in terms of its evidentiary onus, it is evidence sufficiently precise and definite to displace the inference that the disabling pain suffered was caused by the accident (Purkess per Windeyer J at 171; applied in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 per Ipp JA (Mason P agreeing) at [100]).”

31. The respondent does not criticise this analysis of the effect of the authorities.

32. I agree with the primary judge that there was evidence sufficiently precise and definite to displace the inference that the disabling pain suffered by the respondent was caused by the accident. The medical evidence that the primary judge accepted, and was entitled to accept, was that on the balance of probabilities, any trauma caused by the accident would have resolved within 12 months.

33. In Watts v Rake and Purkess v Crittenden the plaintiff suffered injury which fully explained their condition at the time of trial. In both cases the plaintiff had a pre-existing condition. In Watts v Rake the defendant contended the plaintiff’s present condition was traceable to causes other than the accident, and in both cases it was said that because of each plaintiff’s pre-existing disability each plaintiff was likely to suffer a degenerative condition, even if there had been no accident. In Watts v Rake Dixon CJ said (at 160):

“If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.”

34. In the same case Menzies J said (at 163-164):

“It was for the appellant as plaintiff to prove his damages, and merely to prove his present condition and his incapacity to work would not prove that these things resulted from the accident. It was not, however, for the plaintiff to disprove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, e.g., that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health. … [I]t was for the respondent to prove not only that the accident did no more than accelerate the occurrence of a condition that was inevitable, but also the extent of the acceleration.”

35. In Purkess v Crittenden Barwick CJ, Kitto and Taylor JJ said (at 168) of Watts v Rake that:

“It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.”

36. In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Ipp JA observed at [104] that where the issues involve hypothetical situations as to the past, or assessments of future events, what was said in Watts v Rake and Purkess v Crittenden must be understood having regard to Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 at 639-640, 643, that is, by assessing the chance of the future or hypothetical event occurring and taking that chance into account in assessing damages, unless the chance is so low as to be regarded as speculative.

37. The issue in the present case did not involve hypothetical nor future events. It did involve the disentangling of causes of the respondent’s condition at trial. As Dixon CJ said in Watts v Rake it was for the defendant to exclude the operation of the accident as a contributory cause to the plaintiff’s ongoing symptoms of pain. This the appellant did. The evidence of Associate Professor Fearnside was that the anticipated natural history of the injury would be for the injury to stabilise, improve or even resolve. Dr Coroneos’ opinion was that the effects of the lumbar soft tissue damage would have settled within a few weeks of the accident. Dr Keller considered that the respondent probably suffered soft tissue strain to the lumbar spine which was an exacerbation to pre-existing lumbar spine degenerative changes and that any symptoms attributed to the accident would be expected to be resolved by the time of his report. Dr Keller opined that a soft tissue strain to the lumbar spine suffered in the accident “should have resolved completely in the one year since the accident.”

38. These opinions amply supported the primary judge’s findings that on the balance of probabilities the soft tissue injury suffered from the accident did resolve within 12 months of the accident. The question then was whether or not the respondent continued to suffer pain to his back and left leg as he said, or whether he was feigning his condition as the appellant contended. Notwithstanding the adverse credit findings the primary judge made about the respondent, and his finding that the respondent exaggerated his condition (J [97]), he nonetheless found that the respondent suffered ongoing symptoms of pain in his back and down his left leg (J [96] and [97]). This pain was explicable as the result of degenerative changes in the lumbar spine attributable to the pre-existing degenerative changes.

39. The respondent submitted that before such a finding could be made it was necessary for the appellant to adduce reasonably precise medical evidence as to when the respondent’s degenerative lumbar spine condition moved from being asymptomatic to symptomatic. There was such medical opinion. Dr Coroneos was of the belief the effects of the soft tissue injury from the accident would have resolved within a few weeks of the accident. The primary judge accepted Dr Keller’s more conservative opinion that this would have happened within a year of the accident and proceeded accordingly. His Honour found that on the balance of probabilities the effects of the injury suffered in the accident had resolved within a year. It followed that the respondent’s continued pain was not caused by the accident but by the changes to the respondent’s lumbar spine condition, and this occurred no later than a year after the accident.

40. The cross-appeal should be dismissed.

The appeal

41. The respondent read reports from his treating doctor, a psychiatrist, Dr Singer, who reported that he considered that the respondent had “… developed major depression in the context of injury and persistent pain against the background of a rubric of losses including work role as provider and financial difficulty.” He also relied upon reports of a psychiatrist, Dr Patricia Jungfer. She diagnosed the respondent as having suffered an “adjustment disorder with mixed emotional features”. Dr Jungfer did not consider that the respondent had a major depressive illness. She said that his symptoms were “most consistent with an adjustment reaction related to his chronic pain complaints and change in life circumstances”. She opined:

“9.6   In view of the absence of a past history of psychiatric illness, no other comorbid psychiatric triggers, the motor vehicle accident is causative of the adjustment disorder with mixed emotional features.”

42. She said:

“11.   PROGNOSIS.

11.1.   Mr Padash’s prognosis is poor. He remains chronically focused on pain, has reduced pain tolerance, has abandoned his role responsibilities leading to being reconditioned. This and the persistent difficulties with pain will result in a persistent adjustment-related condition.

12.   MANAGEMENT.

12.1.   From a psychiatric perspective I would recommend the ongoing pain management program. I am unable to provide costings for this. All psychiatric treatment should occur within the context of his pain [management]

13.   WORK CAPACITY.

13.1.   The adjustment disorder is caused by his inability to work secondary to his pain. Should he be able to achieve some symptomatic relief and return to work, then I believe that there would be a reversibility of his mood state. His irritability and short-temperedness would impact on his initial employment stability and finding employment.”

43. The appellant tendered reports of a psychiatrist, Dr Graham George, dated 11 April 2019. He diagnosed the respondent as having a “mild to moderate persistent depressive disorder”.

44. In a later report of 30 April 2020 Dr George said:

“When I saw Mr Padash in 2019, I indicated that he appeared to have mild to moderate persistent depressive disorder related to, specifically, pain, limited mobility and a decrease in activity level. In view of Dr Michael Coroneos’ opinion, I do not believe that he would have continued with any psychiatric morbidity beyond the point where his soft tissue injury has resolved.

His presentation, currently, where he indicates he still struggles with depression might be seen more in terms of an adjustment disorder with depressed mood secondary to the accident of 7 February 2020 or a continuation to a degree of his persistent depressive disorder, but not related to the rear-end collision.”

45. Dr Jungfer and Dr George were provided with the surveillance footage. Dr Jungfer said, in substance, that the surveillance footage was of little relevance to her psychiatric assessment. Dr George reiterated his opinion that the respondent did not suffer from a persistent depressive disorder related to the accident and said that the surveillance material suggested that he had capacity for certain activities.

46. The primary judge preferred the opinions of Dr Jungfer. None of the doctors was cross-examined. The primary judge had no advantage over this Court in assessing whose medical opinion should be accepted. But neither party challenged the primary judge’s acceptance of Dr Jungfer’s evidence. (I do not suggest that there is any reason to doubt the primary judge’s acceptance of Dr Jungfer’s evidence.)

47. The primary judge noted, correctly, that little attention had been given in the parties’ submissions to his Honour as to the plaintiff’s mental harm and what should follow from it (J [98]). The primary judge found that the respondent had suffered mental harm and that finding is not challenged. The appellant’s case is that the mental harm the respondent suffered was an adjustment disorder that is temporally coincident with his pain and because the primary judge found his continued pain is not the result of the motor vehicle accident, nor is his adjustment disorder.

48. The primary judge found:

“100   Further, I am satisfied on the balance of probabilities that his mental harm is continuing and will continue in the future. In this regard, Dr Jungfer said that ‘should (the plaintiff) be able to achieve some symptomatic recovery and return to work, it is likely that there could be an improvement with regards to his mood’ (my emphasis). As I have shown, it was a contentious matter whether or not his physical symptoms really have improved, but the plaintiff has not been able to return to work. This is something of a vicious cycle for the plaintiff: his pain and symptoms make him hesitant to return to work whatever the objective medical evidence may suggest, but without the work, his mental health does not improve. His evidence that I referred to at paragraph 57 struck me as plausible.

101   Although it is probably unnecessary to choose between the various diagnoses, it strikes me that Dr Jungfer’s account is preferred. Her report was very comprehensive. It was balanced and consistent with the lay evidence of symptoms. She was realistic when appraising the plaintiff as having a ‘propensity to catastrophize’, which is consistent with the impressions of the vocational experts and my own. She was also balanced in her acknowledgment of the content of the surveillance footage. I consider Dr Fuller’s evidence to be excessively bleak and, with all respect to him, there was not a great deal of reasoning which was exposed to support his diagnosis. Dr Jungfer did not agree with Dr Fuller [and said] that he did not have a major depressive illness.

102   I do not accept the opinion of Dr George, based as that opinion was upon the view of Dr Coroneos, to the effect that as the neurosurgical effects of the soft tissue injury to the back subsided, so too did his psychiatric morbidity. It did not appear to me that there was any reasoning to sustain that view and it does not strike me as logical: I do not see why a cessation of physical difficulty should necessarily result to an end of mental health concerns.

103   I find that his adjustment disorder is enduring and is likely to endure and, further, that this condition has been caused by the accident. …

104 An issue of some significance when dealing with discrete heads of damage is the contributions to the plaintiff’s mental harm which is made by the physical pain and restrictions experienced by the plaintiff and his inability to work. Since the inability to work is due to the pain related problem, there is plainly no bright line. But where, as I have found, the current pain and restrictions is not causally related to the accident, there is arguably a question whether the normative ‘scope of liability’ test for causation (of the mental harm) is satisfied. This was not, to be sure, raised by the defendant and, in my view, properly so. There is a symbiotic relationship between the pain (which, at least initially, was caused by the accident, and which continues, as I have found) and the inability to work and it accords with common sense, in my view, that as time passes with unemployment, the problems associated with lack of motivation, diminished morale and drive and anxiety are likely to persist even if the source of the physical pain is no longer the subject accident, but rather the underlying degenerative changes. Accordingly, I am also satisfied that the ‘scope of liability’ element to causation under s 5D(1)(b) of the Civil Liability Act is also satisfied in relation to the plaintiff’s mental harm.”

49. The appellant challenges this reasoning. He says that if, as the primary judge found, the respondent’s pain after November 2017 was not caused by the motor vehicle accident but was due to degenerative changes to the respondent’s spine, then the respondent’s continued adjustment disorder which was a response to current pain was not caused by such injury as was suffered in the accident.

50. The appellant did not dispute the primary judge’s acceptance of Dr Jungfer’s evidence that the respondent suffered an adjustment disorder. His Honour found that the mental harm sustained by the respondent from the accident contributed to his diminished capacity for work (J [157]). The primary judge found:

“158   Dr Jungfer noted in her primary report that the plaintiff felt he was letting his family down as he was not earning income. Although I have found that his pain since late 2017 is attributable to degenerative changes, the correct identification of the source of the pain is of no moment to the plaintiff in terms of his motivation to work. In my view, the plaintiff has developed what might be regarded as a sense of helplessness, where his motivation to work has been severely diminished notwithstanding his anxious appreciation of the need to work: in other words, he cannot mentally bring himself to resume his former work.

…

174    I accept Dr Jungfer’s evidence that the plaintiff’s prognosis for mental health is poor with a chronic focus on pain. This has a significant ‘spin-off’ effect on his work capacity and is, unfortunately, self-reinforcing. The pain he has endured to date (whether causally attributable to the accident or not) has diminished his motivation to resume his former work as taxi driver or strive to consider or obtain alternative employment, or to re-skill. Further, as Dr Jungfer explains, the more irritable and short-tempered he is, the harder it will be for him to (generally) re-enter the workforce.”

51. In her reports Dr Jungfer described the respondent’s adjustment disorder characterised by low mood, irritability and short-temperedness as being a response to persistent pain. In her report of 24 March 2020 Dr Jungfer said that his psychiatric symptoms appeared to have emerged in response to his pain complaints and lack of structured activity. He presented with a “catastrophic reaction to his pain and disability”. She said that his symptoms were “… most consistent with an adjustment reaction related to his chronic pain complaints and change in life circumstances” and (as quoted at [41] above) that:

“The adjustment disorder is caused by his inability to work secondary to his pain. Should he be able to achieve some symptomatic relief and return to work then I believe that there would be a reversibility of his mood state. His irritability and short-temperedness would impact on his initial employment stability and finding employment.”

52. The appellant submitted that this evidence, which the primary judge accepted, demonstrated that the respondent’s ongoing suffering of an adjustment disorder was a response to his ongoing pain. I agree.

53. The primary judge said that he saw no reason why a cessation of physical morbidity should necessarily result in an end to mental health concerns (J [102]). But the evidence of Dr Jungfer which the primary judge accepted (and the respondent does not contend that his Honour was in error in accepting Dr Jungfer’s evidence) was that the adjustment disorder was inextricably linked to chronic pain complaints. She also said that it was linked to change in life circumstances, being his inability to work. But this was secondary to his pain. If his symptoms were relieved so that he was able to return to work, then there would be a reversibility of his mood state.

54. There was no dispute that an adjustment disorder is a psychiatric illness. But there is no explanation in any of the medical evidence as to what an adjustment disorder is and how it is to be distinguished from a reaction to a life event that creates a mood disorder which is not a psychiatric illness. A question arose during the hearing of the appeal as to whether or not the court could take judicial notice of the description of what constitutes an adjustment disorder that is a psychiatric illness in DSM4 or DSM5. Dr Jungfer provided an assessment of the degree of the respondent’s whole person impairment attributable to her diagnosis of adjustment disorder with mixed emotional features. It should be inferred that in doing so she used the Motor Accident Permanent Impairment guidelines applicable to an accident that occurred between 5 October 1999 and 30 November 2017 (Motor Accidents Compensation Act 1999 (NSW), s 133(2)). Clause 1.213 of those guidelines provides:

“The impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic & Statistical Manual of Mental Disorders (DSM) or the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD). The impairment evaluation report must specify the diagnostic criteria on which the diagnosis is based.”

55. But the respondent rightly said that in the absence of evidence from Dr Jungfer as to which publication she applied, and her interpretation of those publications’ description of adjustment disorders, and in the absence of any questioning of Dr Jungfer, it would be unsafe for this Court to apply its own interpretation of either publication to attempt to answer questions such as whether an adjustment disorder is temporally coincident with the stress or event, or the consequences of the stress or event, which gives rise to the disorder. It is sufficiently clear from Dr Jungfer’s report, and indeed from Dr George’s report, that the psychiatric illness was considered by them to be coincident with the symptoms of physical pain.

56. Further, although the appellant had an evidentiary onus to show that the continued symptoms of pain were not attributable to the accident, once that onus was discharged, the legal burden remained on the respondent to show that the continuance of the adjustment disorder was materially contributed to by his earlier suffering of pain and his unemployment up to November 2017 as a result of pain experienced up to that time.

57. The primary judge found that the respondent’s mental harm was associated with his continuing pain and restriction, but found that such pain and restriction was no longer attributable to the subject accident (J [115]). That finding is correct and should have led his Honour to find that the appellant’s ongoing psychological symptoms are not causally related to the short-term trauma suffered from the accident.

58. The primary judge included in his assessment of damages a sum of $8,000 for future out-of-pocket expenses, being expenses for analgesics and pain management because he found that relief for pain was required to assist the appellant to relieve the mental health issues he faced (J [125]). It is inconsistent with the primary judge’s finding that the appellant’s current pain was not caused by the accident.

59. For these reasons the appeal should be allowed.

60. The appellant submitted that the award of damages for out-of-pocket expenses and loss of past earnings should have been limited to the period up to 30 November 2017 and that no award for future out-of-pocket expenses, future lawn-mowing services or future loss of earning capacity should have been allowed. For these reasons, I agree. On this basis the appellant calculated that judgment should have been entered for the respondent in the sum of $41,965.65. The respondent did not take issue with this calculation.

61. For these reasons I propose the following orders:

1. Appeal allowed.

2. Set aside orders 1 and 2 of the District Court made on 30 July 2020.

3. In lieu thereof direct entry of judgment for the respondent in the sum of $41,965.65, such judgment to take effect as and from 30 July 2020.

4. Order that the respondent pay the appellant’s costs of the appeal.

62. The appellant submitted that if these orders were made the parties should be given the opportunity to provide submissions and adduce any evidence relevant to the question of what order should be made as to the costs of the proceedings in the District Court. The respondent did not demur to that course. Such an order should be made. I propose the following further orders:

1. Unless the parties agree as to the order which should be made as to the costs of the proceedings in the District Court, within 14 days the appellant file and serve written submission (not to exceed five pages) and any affidavit proposed to be relied upon on the question of what costs order should be made in respect of the proceedings in the District Court.

2. Within 14 days thereafter, the respondent file and serve submissions (not to exceed five pages) and any evidence proposed to be relied upon on that issue.

3. Any submissions in reply (not to exceed three pages) be filed and served within seven days thereafter.

63. If the parties agree on the order to be made as to the costs of the proceedings below in the light of these reasons, a proposed order signed by the legal representatives of both parties should be provided to my associate within 14 days.

64. McCALLUM JA: I agree that the cross-appeal should be dismissed, for the reasons stated by White JA. I respectfully disagree with his Honour’s conclusion concerning the appeal. Subject to one qualification identified at the conclusion of this judgment, I would dismiss the appeal for the reasons explained below. The point on which I disagree is narrow, but dispositive.

65. The primary judge accepted that the respondent suffered “mental harm” as a result of the accident. His Honour explained that conclusion at [99] as follows:

“It appeared to be not disputed that the plaintiff has suffered mental harm causally attributable to the accident. Dr George did not say otherwise. The plaintiff’s account to Dr Singer as to his mood and behaviours since the accident was plausible, as it was in the RNSH multidisciplinary assessment undertaken in March 2019. His evidence of no prior mental harm was unchallenged. Further, his account as to his mood and behaviour, domestically, was corroborated by his wife. I also add that my impression of him when giving evidence was, to my eye, that he appeared flat in his bearing.”

66. The primary judge further accepted at [100] that “[the respondent’s] mental harm is continuing and will continue into the future.” Neither of those findings is challenged.

67. A third central fact (the cross-appeal having been rejected) is that, from about one year after the accident, the respondent’s pain was not accident-related but was instead caused by degenerative disease. The appellant’s deceptively simple argument is that, because the continuing pain is not the result of the motor vehicle accident, it follows that the continuing psychiatric symptoms are also not the result of that accident.

68. As submitted by the respondent, the premise of that argument is what White JA has termed the temporal coincidence of the continuing psychiatric condition and the continuing physical pain. The assumption is that the continuing psychiatric symptoms, having been initially caused by accident-related pain, would not persist in the absence of that pain. That premise was not articulated to the primary judge. Further, as I will explain, it was not to be assumed without proof.

69. The point on which I disagree with White JA is confined to a question of onus. The respondent’s psychiatric condition was secondary to a physical condition caused by the appellant’s tortious conduct. As such, it was an additional condition resulting from the accident for which the appellant is liable to compensate the respondent.

70. It was not suggested that there is any legal or medical basis for making a universal assumption that a secondary condition will necessarily cease with the resolution of the primary condition. A secondary condition occurring as a result of having a primary condition may or may not be temporally coincident with the primary condition. An infection secondary to the infliction of a wound might be expected to resolve at the same time as the healing of the wound (indeed its resolution may be a necessary condition for the healing of the wound); conversely, osteoporosis secondary to an eating disorder might continue beyond the successful treatment of the eating disorder. The absence of any assumed correlation between the resolution of a secondary condition and the primary condition from which it results is what I understand the primary judge to have meant by his remarks at [102] (set out by White JA above) when rejecting Dr George’s opinion (that as the neurosurgical effects of the soft tissue injury to the back subsided, so too did his psychiatric morbidity) on the basis that it was not “logical”. The primary judge concluded, “I do not see why a cessation of physical difficulty should necessarily result to an end of mental health concerns”.

71. The appellant sought in this context to derive some support from the definition of “adjustment disorder” in DSM 4 or DSM 5, which (so it was asserted) “leads to the inevitable conclusion that if the pain which is the basis of the condition ceases to be accident related, the condition ceases to be accident related”. For the reasons given by White JA, I agree that this Court should not resort to either of those publications to determine whether an adjustment disorder is temporally coincident with the stress or event, or the consequences of the stress or event, which gives rise to the disorder.

72. What was required was proof. On my understanding of the authorities discussed by White JA, it was the appellant who bore an evidentiary onus to establish the premise of her contention. White JA accepts that the appellant had an evidentiary onus to show that the continued symptoms of pain were not attributable to the accident. However, his Honour holds that, once that onus was discharged, the legal burden remained on the respondent to show that the continuance of the adjustment disorder was materially contributed to by his earlier suffering of pain and his unemployment up to November 2017, as a result of pain experienced up to that time.

73. In my respectful opinion, that analysis holds true only if the appellant established the untested premise that the pain and the psychiatric condition were temporally coincident (or, in other words, that the psychiatric condition would abate with the cessation of the physical pain).

74. I am not persuaded that the evidence went so far. Dr Jungfer, whose evidence the primary judge accepted, gave a diagnosis of “adjustment disorder with mixed emotional features”. In her first report dated 5 March 2019, she explained the cause of the disorder in the following terms:

“The adjustment disorder in part is caused by his inability to work due to his pain related problems. Should Mr Padash be able to achieve some symptomatic recovery and return to work, it is likely that there could be an improvement with regards to his mood. The psychological symptoms that he reports, the irritability, short-temperedness, social withdrawal would make him a less than optimal candidate with regards to finding employment and would be a barrier with regards to achieving success through the probationary period.”

75. Dr Jungfer made a similar statement in her later report dated 24 March 2020 (quoted by White JA at [42]):

“The adjustment disorder is caused by his inability to work secondary to his pain. Should he be able to achieve some symptomatic relief and return to work, then I believe that there would be a reversibility of his mood state. His irritability and short-temperedness would impact on his initial employment stability and finding employment.”

76. The appellant submits, and White JA accepts, that Dr Jungfer’s opinion on that issue demonstrated that the respondent’s ongoing suffering of an adjustment disorder was a response to his ongoing pain. However, Dr Jungfer did not confine the cause of psychiatric symptoms to the persistence of physical pain. Her reports traced the development of a condition, which she ultimately described as “persistent”, where the disabilities caused by the initial accident-related pain in turn contributed to the respondent’s psychiatric symptoms resulting in his abandoning his “role responsibilities” and becoming “deconditioned”. She said “this and the persistent difficulties with pain will result in a persistent adjustment-related condition”.

77. It is clear that the ongoing pain was thought to contribute to that condition. Indeed, the primary judge said at [125] that the treatment of the respondent’s mental health was “inextricably linked” to his physical condition. However, Dr Jungfer did not say that was its only cause. As White JA notes, she accepted that it was also linked to a change in life circumstances, being his inability to work. Her evidence did not establish that, if the respondent’s symptoms were relieved, he would be able to return to work. Her opinion was that if he was able to achieve some symptomatic relief and return to work then there would be a “reversibility of his mood state”, but that “his irritability and short-temperedness would impact on his initial employment stability and finding employment”.

78. The primary judge gave careful consideration to the evidence on that issue and concluded that the respondent’s “mental harm”, which his Honour accepted at [157] was causally attributable to the accident, has contributed to diminishing his capacity to work. His Honour concluded at [158]:

“Dr Jungfer noted in her primary report that the plaintiff felt he was letting his family down as he was not earning income. Although I have found that his pain since late 2017 is attributable to degenerative changes, the correct identification of the source of the pain is of no moment to the plaintiff in terms of his motivation to work. In my view, the plaintiff has developed what might be regarded as a sense of helplessness, where his motivation to work has been severely diminished notwithstanding his anxious appreciation of the need to work: in other words, he cannot mentally bring himself to resume his former work.”

79. I am not persuaded that there was any error in that analysis. Once the primary judge had accepted that the respondent’s psychiatric condition resulted from the accident and that it continued beyond the period of accident-related physical pain, the appellant was required (in the words of Dixon CJ in Watts v Rake, cited by White JA at [33] above) to “do the disentangling and to exclude the operation of the accident as a contributory cause” of the ongoing psychiatric condition. For that purpose, as submitted by senior counsel for the respondent, definite and precise evidence was required.

79. The evidence did not satisfy that requirement. The appellant did not even invite the primary judge to undertake the task of disentangling the causes contributing to the respondent’s current psychiatric condition. There was a finding that the source of the physical pain changed and there was certainly evidence that persisting pain was a contributing factor to the psychiatric condition. However, there was no evidence excluding the operation of the motor vehicle accident as a contributory cause to the persistent psychiatric condition described by Dr Jungfer, the symptoms of which included decompensation, deconditioning and the “sense of helplessness” to which the primary judge referred, and which his Honour accepted was causative of a diminution in the respondent’s capacity to work. As submitted by the respondent, in the absence of such evidence, the primary judge was entitled to treat the respondent’s current psychiatric condition as the continuation of the condition that resulted from the tortiously caused physical harm.

80. I said at the outset of this judgment that there is one qualification to my conclusion that the appeal should be dismissed. I agree with White JA that the primary judge’s conclusion at [125] that the respondent should be awarded $8,000 for the cost of treatment for his current physical pain cannot stand. Senior counsel for the respondent as much as conceded this point. As this is a dissenting judgment, it is not necessary to spell out the consequences of that conclusion in the orders proposed. Subject to that qualification, I would dismiss the appeal with costs.

81. EMMETT AJA: These proceedings arise out of a motor vehicle collision that occurred at Canada Bay on 30 November 2016, as a result of which the respondent, Mr Hassan Padash, suffered injury. The appellant, Ms Rebecca Dungan, who was the owner of the other vehicle involved in the collision, which drove into the rear of the vehicle driven by Mr Padash, admitted liability for the injury suffered by Mr Padash. Mr Padash alleged that he suffered an injury to his back with pain radiating to his left leg and that he developed an adjustment disorder secondary to chronic lower back pain.

82. Mr Padash sued Ms Dungan in the District Court. A judge of the District Court (the primary judge) awarded damages of $278,817.75. In his reasons, the primary judge observed that it appeared not to be disputed that Mr Padash had suffered mental harm causally attributable to the motor vehicle accident. His Honour was satisfied on the balance of probabilities that the mental harm was continuing and will continue in the future. His Honour accepted the evidence of Dr Jungfer, a psychiatrist, that Mr Padash’s adjustment disorder was enduring and is likely to endure and that that condition had been caused by the motor vehicle accident. His Honour referred to the question of whether the contribution to Mr Padash’s mental harm was made by the physical pain and restrictions experienced by him and his inability to work.

83. The primary judge observed that, since the inability to work was due to the pain related problem, there was no bright line but where, as his Honour found, the current pain and restrictions were not causally related to the accident there was arguably a question as to whether the normative scope of liability for the test of causation of the mental harm was satisfied. His Honour held that there was a symbiotic relationship between the pain and the inability to work and that it accords with common sense that as time passes with unemployment, the problems associated with lack of motivation, diminished morale and drive and anxiety are likely to persist, even if the source of the physical pain were no longer the motor vehicle accident, but rather underlying degenerative changes in Mr Padash’s spine. There was clear evidence of degenerative change in Mr Padash’s spine that had no connection with the motor vehicle accident and that that degenerative change was capable of causing the pain that he presently suffers.

84. The primary judge concluded that Ms Dungan had discharged the evidentiary onus of demonstrating that the onset of pain and physical restriction in Mr Padash’s movement that was attributable to the motor vehicle accident should have abated within a year of the accident, namely, by November 2017. His Honour considered that the preponderance of the medical evidence suggested that the type of injury and the way in which it was suffered should have resolved itself well and truly by the time of the trial. His Honour characterised the injury as “a conventional whiplash injury”.

85. Nevertheless, his Honour accepted that Mr Padash continued to experience pain notwithstanding that, on the balance of probabilities, the pain and physical restrictions that he experienced from the motor vehicle accident would have abated. Mr Padash contended that it was not until after the motor vehicle accident that he began to suffer pain and there was no evidence of progression of the degenerative changes to his spine, such that symptoms would have commenced after the time when pain and disability from the motor vehicle accident would have ceased.

86. The primary judge did not accept opinion evidence adduced on behalf of Ms Dungan to the effect that, as the neurosurgical effects of the soft tissue injury to Mr Padash’s spine subsided, so did his psychiatric morbidity. His Honour did not consider that there was any reasoning to sustain that view and his Honour did not see why a cessation of physical difficulty should necessarily result in an end of mental health concerns.

87. While his Honour found that Mr Padash’s current and future physical restrictions were not caused by the motor vehicle accident, his Honour concluded that the treatment of his mental health was inextricably linked with his physical condition and pain management so as to justify an award that would accommodate his requirement for analgesics and pain management. His Honour considered that Mr Padash needed the relief for his pain to assist him to relieve the mental health issues that he faces.

88. By notice of appeal filed on 12 August 2020, Ms Dungan appeals from the orders made by the District Court. Ms Dungan asserts in her notice of appeal that the primary judge erred:

• in finding that the mental harm from which Mr Padash suffers, namely an adjustment disorder, is and was after 30 November 2017 causally related to the motor vehicle accident;

• in finding that, while any and all physical symptoms from which Mr Padash has suffered since 30 November 2017 are not causally related to the motor vehicle accident, the mental harm from which Mr Padash suffered after that date is causally related to the motor vehicle accident;

• failing to find that, once the physical symptoms caused by the motor vehicle accident to which Mr Padash’s mental harm was inextricably linked had ceased, his mental harm also ceased to be causally related to the motor vehicle accident; and

• failing to limit the award of damages to out-of-pocket expenses up to 30 November 2017 and loss of earnings up to 30 November 2017.

90. By notice of contention filed on 5 November 2020, Mr Padash asserted that the primary judge should have found that his psychological condition continued to be related to the physical injuries suffered in the collision. By cross-appeal filed on 5 November 2020, Mr Padash asserted that his Honour erred in finding that the effects of physical injury had ceased.

91. I do not consider that the evidence supports a conclusion that the mental condition from which Mr Padash now sufferers would not have arisen but for the motor vehicle accident. There was clear evidence of degenerative changes in the condition of his spine that would give rise to pain. That pain, in turn, was capable of causing the mental condition from which Mr Padash suffers. In circumstances where:

• the evidence of degenerative changes of the spine is an obvious explanation for the pain from which Mr Padash now suffers,

• the pain from which Mr Padash now suffers is the source of his mental condition, and

• Mr Padash no longer suffers pain or restriction as a result of the motor vehicle accident,

there was nothing to link the mental condition from which Mr Padash now suffers with the motor vehicle accident. The primary judge erred in concluding to the contrary.

92. I have had the advantage of reading in draft form the reasons of White JA for concluding that the cross-appeal by Mr Padash should be dismissed and that the appeal should be allowed. I agree with his Honour’s conclusions and the reasons for those conclusions. I also agree with the orders proposed by his Honour.

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Decision last updated: 23 April 2021