Farrington v SAMPSON - [2013] SADC 47

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
FARRINGTON v SAMPSON
[2013] SADC 47
Judgment of His Honour Judge Chivell
18 April 2013
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - REMOTENESS AND CAUSATION - PRE-ACCIDENT CONDITION OF PLAINTIFF
Plaintiff involved in a motor vehicle collision in 2005 caused by negligence of the defendant – plaintiff alleged neck and sternal injuries and aggravation of a pre-existing but asymptomatic degenerative condition in her lower back caused by previous motor vehicle accident and work as a nurse – issues of causation, extent of plaintiff’s injuries and quantum. Neck and sternal injuries established. No temporal connection between the lower back symptoms and the 2005 collision – no causative link established. Damages in the sum of $11,585.05 awarded for the neck and sternal injuries.
Civil Liability Act 1936 s 34, s 35, s 52(1), s 52(2) , referred to.
Millbrook v Davies [2004] SADC 66; Purkess v Crittenden (1965) 114 CLR 164; Strong v Woolworths Ltd [2012] HCA 5, considered.

FARRINGTON v SAMPSON
[2013] SADC 47
Introduction
The Plaintiff
Plaintiff’s Pre-Accident Symptoms
The 1998 Accident
Plaintiff’s Injuries from the 2005 Accident
Plaintiff’s Post-Accident Symptoms
The Bali Trip
Onset of Symptoms in 2006
Medical Opinion in Relation to Causation
Dr Gadd
Dr Osti
Dr McCulloch
Dr Jackson
Conclusions
Damages
Non-Economic Loss
Past Economic Loss
Gratuitous Services
Special Damages
Consequential Orders

Introduction

This is a claim in negligence for damages arising from injuries suffered by the plaintiff in a motor vehicle accident which occurred on 12 August 2005 at the junction of Anzac Highway and Cross Road at Plympton.
The plaintiff was driving a vehicle west along Anzac Highway when it collided with a vehicle driven by the defendant which was travelling in the opposite direction. The defendant had attempted to turn right into Cross Road, and failed to give way to the plaintiff’s vehicle.
Liability in negligence has been admitted.
The issues for determination are the causation and extent of the plaintiff’s injuries and the quantum of damages, if any, arising from those injuries.
In her Second Statement of Claim, the plaintiff asserts that, as a result of the defendant’s negligence, she suffered:
·a soft tissue injury to the neck;
·a fractured sternum;
·an aggravation of a ‘pre-existing but asymptomatic degenerative condition in her lower back’.
By her defence, the defendant admits the first two injuries referred to above, and asserts that they have resolved. As to the third, the defendant:
·denies that the pre-existing condition in the plaintiff’s back was asymptomatic;
·denies that the condition was aggravated in the collision;
·says that any injury, loss or damage suffered by the plaintiff arises from a pre-existing back condition and not from the collision;
·says that, in the alternative, if the plaintiff’s back condition was aggravated in the collision, the effects were temporary and have resolved;
·contends that, in the further alternative, the plaintiff’s incapacity results from a ‘new and intervening act’, referring to an incident at the plaintiff’s work in early January 2006.
The Plaintiff
The plaintiff was born in 1960. She commenced nursing training in 1978 after completing Year 12. She became a registered general nurse in 1981. She was registered as a psychiatric nurse in 1983 and has a Graduate Diploma in Infant Mental Health. She has worked at Helen Mayo House since 1986. Helen Mayo House is an establishment where mothers who suffer mental health problems can go for treatment, and their children aged three years or less can be accommodated as well. The nurses who work there are involved not only in the care of the parent, but also in caring for the children. Not surprisingly, the work involves much bending and lifting.
The evidence from the plaintiff and that of her supervisor, Ms Ellershaw, is convincing that the plaintiff was a highly-qualified, experienced and well-regarded professional person, and that prior to the subject incident, she was performing her duties at a high level.
Plaintiff’s Pre-Accident Symptoms
In examination-in-chief, the plaintiff gave the following information about her medical history:
·In 1980, she suffered a back injury at work. The transcript records that she ‘prolapsed my L5/6’[1]. In fact, it would have been the disc at L5/S1, since there are only five lumbar vertebrae. She underwent a laminectomy in June 1980 and then, after recovering, returned to normal duties. She said:
I was left with probably a mild grumbling nurses’ back which would worsen on occasions if I had a heavy workload over the last couple of days, but nothing that either prevented me working or stopped me from doing what I wanted.[2] (My emphasis)
·    There were times after that when she consulted her general practitioner if her back flared up, and had anti-inflammatories prescribed for her.[3]
[1]    T19
[2]    T19
[3]    T23
It can be seen from the above that the plaintiff’s lower back was far from ‘asymptomatic’, as had been pleaded in the Statement of Claim. When questioned about this, the plaintiff said ‘I was never saying my back was asymptomatic since 1980’.[4] Much of the plaintiff’s cross-examination was directed to this topic.
[4] T73
Later in her evidence, the plaintiff summarised her back condition prior to the 2005 accident as follows:
My back condition prior to the accident was relatively under control. To the best of my recollection I couldn’t recall having any time off or if it was it was minimal and as stated I would have the occasional flare-up for which I sought treatment and medication. As far as I’m aware it was not of the severity where I had not to work.[5]
[5] T169-70
In fact, on 7 August 1995 the plaintiff sought treatment from the doctor for lower back and right hip pain.
On 23 August 1996, the plaintiff again sought treatment from her doctor for lower back pain after a lifting incident at work.
The plaintiff acknowledged that the pain she suffered in 1995 and 1996 was in the same area as the pain she has suffered since the 2005 accident. She said, however, that the pain had been ‘a lot, lot worse since the accident’.[6]
[6] T86-7
In the case notes, Dr Soong, the plaintiff’s general practitioner, described the plaintiff’s condition as ‘severe low back pain, L5/S1, radiating to the hip which was different from past sciatica’ (my emphasis). He gave her a WorkCover certificate for that condition.[7] The plaintiff admitted that her evidence of not taking time off work before the 2005 accident might have been wrong.[8]
[7] T269
[8] T85
The plaintiff’s condition was reviewed on 10 September 1996. Dr Soong recorded that the plaintiff’s back pain was worse, so much so that he ordered a CT scan.[9] The plaintiff did not return to work on full duties until 10 October 1996.[10] The plaintiff was unable to remember this incident at all.[11]
[9] T270
[10] T88
[11] T89
The medical notes record that on 22 July 1997, the plaintiff suffered another exacerbation of her condition. The notes read:
Working increased hours last month. Lumbar back pain to the iliac crests mild R sciatica to knee …
Dr Soong prescribed Codral Forte and physiotherapy. He provided her with a certificate of incapacity for five days.[12] He recorded that the plaintiff’s back was ‘back to normal again’ by 30 July 1997.
[12] T286
On 25 February 1998, the plaintiff had to seek treatment for her lower back. Dr Soong noted:
… backache last two months, no injuries. Low back to iliac crest worse on coughing. Pain extends back … [13]
Again, the plaintiff was unable to recall this incident. She insisted that her back was merely a ‘low grade constant problem’.[14]
[13] T271
[14] T171
On 23 (or possibly 26) March 1998, the plaintiff’s low back pain was such that she was referred to a neurologist, Dr Fewings. She had tried acupuncture but this only aggravated her symptoms.[15]
[15] T172-3
The 1998 Accident
In 1998 the plaintiff was involved in a motor vehicle accident in which there was a head-on collision with another vehicle. She sustained severe neck and sternal injuries which, she said, ‘pretty much resolved totally’ after about three months.[16] The plaintiff said that her back symptoms also increased after that accident, but they also settled down to the pre-accident level.[17] Within six months, she was back performing normal duties.[18] She said that some of her domestic duties, such as vacuuming, would induce symptoms from the neck injury, and so her husband would do that most of the time.[19]
[16] T25
[17] T25
[18] T26
[19] T31
The plaintiff agreed in cross-examination that, following the 1998 accident, she continued to have difficulty with her neck, in particular turning her head when reversing the car and household chores. This continued through until the 2005 accident.[20]
[20] T173-4
On 27 February 2001, the plaintiff consulted Dr Soong again about her low back problems. She also spoke to him about a number of other problems, but he noted a complaint of right-sided sciatica for two days. The note ‘no injury’ presumably indicates that the onset of symptoms was not associated with a specific injury or event. The plaintiff had previously had an injection in the buttock for an unrelated condition, and there was a haematoma, a lump, which he thought might be pressing on the sciatic nerve.[21]
[21] T274
In March 2004, the plaintiff consulted Dr Soong again for a number of problems, including lower back pain. This pain was still present when she returned on 8 March 2004 and on 24 March 2004. The plaintiff said that Dr Soong told her that he thought that her symptoms were due to menopause, but she thought that the pain was similar to pain she had had on previous occasions.[22]
[22] T184
On 15 April 2005, the plaintiff consulted Dr Gadd. This was only four months prior to the subject accident. She said (from the case notes) that her consultation was about menopause and her low back.[23] She could not specifically recall the occasion. Dr Gadd ordered x-rays of her thoracic and lumbosacral spine to investigate both the plaintiff’s lumbosacral pain and her bone density.[24]
[23] T189
[24] T136
Plaintiff’s Injuries from the 2005 Accident
The plaintiff said she was travelling at 60 kilometres per hour prior to the collision.[25] The defendant’s car was roughly at right angles to her car when they collided. She thought her chest hit the steering wheel. It was a severe impact. She said ‘My chest was exceedingly painful as was my neck’. The plaintiff was there referring to the period ‘immediately or soon after the impact’.[26]
[25] T32
[26] T33
The plaintiff was conveyed by ambulance to Flinders Medical Centre, where she had x‑rays of her neck and sternum. After four or five hours, she was discharged.
On the following Sunday, 14 August 2005 (the collision was on a Friday), someone from the hospital called the plaintiff and told her they had reviewed the x‑rays and that she had a fractured sternum.
Plaintiff’s Post-Accident Symptoms
When the plaintiff was initially assessed by ambulance officers after the accident, there was no record made of any complaint of back pain. The plaintiff was unable to remember what was said. She recalled that she told the ambulance officers that she had had previous low back problems, but not that she complained of any pain at that time.[27]
[27] T194
The Flinders Medical Centre case notes also record that x-rays were taken of the plaintiff’s neck and chest, but not of her lower back.[28] The notes of the attending medical officer in the Accident and Emergency Department do not disclose any note of the plaintiff mentioning specifically that she had low back pain at that time. She agreed that she had told the doctor she had had chronic back pain previously, which was ‘occupation related’.[29]
[28] T195
[29] T195
It is therefore clear that the plaintiff adverted to the issue of low back pain during these discussions in the Accident and Emergency Department, but the inference is also clear that she made no complaint that she was suffering low back pain at that time. She explained:
At the time of the accident my chest and neck were the only things I was conscious of feeling pain.[30]
[30] T196
The plaintiff saw Dr Soong on Monday, 15August 2005. She said she talked to him about ‘the pain in my neck and in my sternum …’[31] She did not say that she mentioned her lower back to Dr Soong at that point. However, at T38, the plaintiff asserted that she did tell Dr Soong in that first consultation after the accident.
[31] T34
The case notes record that Dr Soong noted a fractured sternum and soft tissue injury to the neck. There is no note of a complaint of low back pain in that initial consultation.
As to the onset of symptoms in her lower back, the plaintiff’s evidence was:
Probably where it was more noticeable than the usual grumblings and things was when we’d – I’d gone back to work. Before I returned to work, about a month later, my back was sorer but manageable compared to – it was probably on the level of what it was after a couple of heavy days at work, but then, when I did four shifts back at work before our Bali holiday was booked and my back was exceedingly painful during those shifts.[32]
[32] T34
This is a clear admission by the plaintiff that, immediately after the accident, her back was no worse than it had been prior to the accident.
On 17 August 2005, the plaintiff sent a document entitled ‘Claim for Personal Injury’ to the Motor Accident Commission (Exhibit D7). Included in the document are a description of the accident and a description of her injuries. Included in the statement is the following:
As a result of the collision I was taken by ambulance to Flinders Medical Centre for treatment. I was diagnosed with soft tissue injury (whiplash) and it was later confirmed that I had fractured my sternum. As a result of these injuries I am currently not able to work, and cannot drive.
Again, it is noteworthy that the plaintiff made no mention of low back pain, or any injury to that area of her body. When this was pointed out in cross-examination, the plaintiff said:
I wrote this within five days of the accident and at the time my overriding pain was in my (neck/back) and my sternum.[33]
My clear recollection is that the plaintiff said ‘neck’, and not ‘back’, referring to the ‘whiplash’ injury.
[33] T208
In my view, the inference is clear that, at that stage, the plaintiff was not aware of pain in her lower back.
The report of Dr Gadd dated 11 April 2006, tendered by the plaintiff’s counsel (part of Exhibit P5), sets out a chronology of the plaintiff’s medical consultations at the Allcare Medical Centre after the accident:
2)1.2)She originally consulted Dr. Soong regarding the motor vehicle accident of the 12^th August, 2005. She described the motor vehicle accident occurring at 0850 on Anzac Highway travelling toward Glenelg when an oncoming car turned to the right. She was wearing a seatbelt and the airbag deployed.
2)1.3)She described no loss of consciousness and neck and sternal pain with pain on respiration. He notes previous neck injury with motor vehicle accident settled. Some trouble sleeping and headaches. She had been taking Voltaren and Paracetamol. Clinically she was diagnosed with fractured sternum and soft tissue injury to neck.
2)1.4)On subsequent review (again by Dr. Soong) on the 24^th August, 2005 she reported persisting neck pain, stiffer and sore than a week ago, taking Panadeine and Nurofen Forte nocte. She had a nightmare 2 nights only.
On examination noted to have back fair range of movement, sternal pain on extension, neck flexion 5 cm, pain on all range of movement, general tenderness. She was referred for physiotherapy treatment.
On further review on the 31^st August, 2005 she had first physiotherapy treatment the previous day, but more neck and sternal pain. She described relief from Nurofen Forte. She was noted to have limited range of movement approximately 50% of neck (Dr. V. Soong).
I reviewed her on the 13th September, 2005 where return to work was discussed. Range of movement of neck seemed to be acceptable, sternum was noted to be still somewhat tender inferiorly.
She saw Dr. Soong on the 23^rd September, 2005. She had a return to work 8/7 prior, had become more sore since and found physiotherapy helpful re her neck, chest more sore, work made it hurt more.
She was reviewed by Dr. Soong on the 1^st November, 2005. She described neck and chest wall pain persisting particularly at or after work.
I saw her on the 10^th January, 2006. She described working at a computer with back pain referring to iliacs, sufficiently severe to take Endone occasionally. I referred her for a CT Scan of lumbar spine (copy of report attached).
Ms. Farrington was reviewed where findings were discussed and Tramal was prescribed.
She saw me again on the 30^th January, 2006 complaining of worsening back pain not helped by Tramal. I therefore prescribed Oxycontin SR 10 mg and referred her to Dr. David Hall (Orthopaedic Surgeon).
She was subsequently admitted to Flinders Medical Centre with exacerbation of back pain. I enclose copy of Discharge Summary. I regret having difficulty reading it. I enclose subsequent letter via Dr. Zbignew Gieroba which summarises this admission. She was transferred to Griffith Hospital for ongoing rehabilitation, summary enclosed.
The Bali Trip
The plaintiff returned to work on 15 September 2005. She said she worked four shifts back at work, after which her back was ‘exceedingly painful’.[34] She and her family then went on holiday to Bali from 26 September to 16 October 2005. She said sitting on the plane for a long period made the back ‘a lot worse’.[35]
[34] T35
[35] T37
The plaintiff said that her sternum, neck and back were all painful in Bali. She was asked whether this interfered with her enjoyment of the trip and she said:
It made plane travel difficult. I took medication and had a script, or Valium to take on the (plane) so that my back and neck wouldn’t spasm and I spent most of my time lying by the pool. My husband and son did the white water rafting and left us behind.[36]
[36] T37
When asked why this significant increase in lower back pain was not mentioned to the doctors on her return, the plaintiff said:
Q.   So is your evidence this to his Honour: that going back to work, prior to going on the Bali trip, you had significant increase in lower back pain.
A.   Yes.
Q.   Aware of the significant lower back pain as a consequence of the travel in the aeroplane.
A.   Yes.
Q.   You didn’t tell that to the doctor [sic] because you didn’t want to bother them or bother yourself.
A.   I would have thought I had told the doctors. If I haven’t it was because I thought it would settle down as it has in every other case previously.[37]
[37] T178
This is an example of the plaintiff reconstructing her evidence to suit the objective facts. It is completely incongruous that, if the plaintiff suffered a significant increase in low back pain just prior to the Bali trip, and a further increase during the trip, she did not report it or even mention it to the doctor until 1 November 2005, and even then, that she did not associate the symptoms with the accident, or with the Bali trip in September.
The plaintiff said in cross-examination that prior to going to Bali:
I went to the GP and said ‘I’m going on a flight, my back and neck are sore’ and I was given a prescription for Valium to assist me.[38]
[38] T94-5

In fact, the records of the Allcare Medical Centre disclose that there had been no complaint of back pain prior to the Bali trip, and no prescription of Valium since 8 December 1999, when computerised records began (evidence of Dr Gadd, T139).
I agree with the submission of Mr Ward, counsel for the defendant, that the plaintiff’s argument that she may have had Valium left over from a pre-1999 prescription is simply fanciful (see her evidence at T180). She said:
Q. ... Put it this way, the doctor said you were not prescribed Valium from December 1999 up until the Bali trip.
A. I’ll accept that and say I must have taken it from December 1999.
This is a further, very clear example of the plaintiff’s tendency to reconstruct her evidence around the proven facts. When she was confronted with the case notes, she modified her evidence to conform with that, and retreated from her previously-stated position.
The first time the plaintiff consulted Allcare Medical Centre after the Bali trip was on 20 October 2005, when she obtained a prescription for hormone replacement therapy (‘HRT’). There was no mention of her lower back pain then.
The plaintiff did not immediately return to work after the holiday. She returned to work on 24 October 2005. By this time, she said, her ‘Neck and sternum had settled but my back was getting increasingly more painful’.[39]
[39] T38
On 1 November 2005, Dr Soong records that there is a complaint of ‘back and neck pain’. There is no history of the complaint of back pain recorded. There is no mention of the August 2005 accident, the return to work, the Bali holiday, or any other context for the complaint of pain. When asked whether any such history would have been recorded if it had been given, Dr Soong said:
Normally so, this particular case being a car accident we are even more careful to put everything in, yes.[40]
[40] T279
When asked to explain her failure to complain of low back pain before 1 November 2005, the plaintiff insisted that the pain was there after the accident, and steadily increased during the latter half of 2005, but:
A.   As I explained yesterday, the problem from my back, while it was there, was not of the severity to make it a major issue at that – for the first two months. My neck pain and sternum pain was so severe that I really didn’t notice any lower back or anything much else.
Q.   That is what you’ve told doctors that you’ve seen. Didn’t you say to Dr Osti words to the effect that you had significant low back pain since the motor vehicle accident on 12 August 2005.
A.   From what I said was that my back pain was bearable until I returned to work where it rapidly worsened.
Q.   Was that what you told Dr Osti or did you tell him it was a significant problem that affected you.
A.   No, I told Dr Osti, as I’ve told every doctor I’ve seen, that it was not too bad until I returned to work and it had gotten worse during the plane trip to Bali and then when I returned to work it became even more severe and when I returned to work on a full-time basis with no holidays or breaks it continued to increase in severity.
Q.   So then the key for you is that the significant back pain, you start to notice it around September 2005.
A.   Yes.[41]
[41] T177
I will discuss Dr Osti’s evidence later. For now, it is sufficient to observe that Dr Osti noted a very different history when he examined the plaintiff.
In any event, the clear import of the plaintiff’s evidence here is that her back was no worse than it had been before the accident until she returned to work in September 2005, six weeks or so after the accident. She said it became worse on the trip to Bali, worse again when she returned to work in October, and steadily worse after that.
In December 2005-January 2006, the plaintiff performed management duties in the absence of her manager, Ms Ellershaw. The plaintiff said this work involved more time at the computer. She said her back became ‘steadily worse’ during this period.[42]
[42] T38
Onset of Symptoms in 2006
In early January 2006, the plaintiff suffered a severe exacerbation of her back symptoms. She described what happened as follows:
Continued to worsen and I had to take sick leave off that January, despite doing lighter duties on the computer. I needed to take sick leave then I went back to normal duty and there was a morning where I just – my back was so painful I fell, I couldn’t get up. My back was in massive spasm and my husband came home and drove me up to Flinders Emergency Department where I was admitted.[43]
[43] T39
She consulted Dr Gadd on 10 January 2006. Dr Gadd recorded in the case notes:
Working at computer at present. (b)ack pain with pain referring to iliacs sufficiently bad to take endone occasionally.
Dr Gadd said this was the first time that these symptoms had been recorded since 15 August 2005.[44] If any such symptom had been complained of prior to that, he would have expected that to have been recorded (ibid). Clearly, the onset of pain was related to the plaintiff working while seated at a computer. She asserted in evidence, however, that she had been experiencing low back pain, of gradually increasing severity, since the motor vehicle accident in August the previous year.[45]
[44] T140
[45] T141
Dr Gadd ordered a CT scan of the plaintiff’s lumbosacral spine and gave her a certificate of incapacity for her employer.
When Dr Gadd saw the plaintiff again on 30 January 2006, the pain had increased further over the previous five days. Dr Gadd prescribed even more powerful pain-killing drugs, and referred the plaintiff to an orthopaedic surgeon, Dr Hall.
The plaintiff’s condition did not settle, and she was admitted to Flinders Private Hospital on 2 February 2006, and remained there for a week. She was then admitted to Griffith Rehabilitation Hospital, where she remained for a further two weeks. She returned to work on a part-time basis, performing modified duties. She said she was unable to perform her normal clinical work during that period.
In January 2007, the plaintiff obtained a position as a ‘Consultation Psychiatric Liaison Nurse’ at the Women’s and Children’s Hospital. This was a full‑time position initially, but after six months reduced to two days a week. She supplemented this with one day a week at Helen Mayo House and one day a week at Torrens House.
In late 2008, the plaintiff and her husband went to Egypt on holiday for three weeks. She took medication and was limited in her activities.
In November 2008, the plaintiff underwent back surgery performed by Dr Orso Osti, orthopaedic surgeon. She said that after a month or two, her back was ‘much, much better’.[46]
[46] T45
In mid-2009, the plaintiff obtained a position as a nurse in the Perinatal and Infant Mental Health Education Consultation (‘PIMHEC’) section of a body called GP Shared Care. This position is for four days per week, and she works one day a fortnight at Helen Mayo House to make her employment .9 of full time.
The plaintiff says her symptoms have still not resolved, although they were much improved by the operation. She said that, but for the surgery, she would have worked two Saturdays and two Sundays a month at Helen Mayo House, and received overtime rates of pay for that. She does some short periods of overtime now.[47] She had intended to work until she was 65, but now says she will be ‘Lucky to make 60’,[48] even on reduced hours.
[47] T60
[48] T61
The plaintiff continues to take pain-killing and anti-inflammatory medication.[49]
Medical Opinion in Relation to Causation
[49] T66
Dr Gadd
Dr Gadd expressed the opinion that the 2005 accident was a ‘significant’ contributor to the exacerbation of her back condition. He explained that his use of ‘significant’ indicates that it was not a ‘major’ contributor, but a contributor nonetheless.[50]
[50] T146
Dr Gadd did not accept that the plaintiff’s failure to mention her back symptoms to him after the accident necessarily indicates that she did not suffer them. He said:
Well, I can understand why one would make that conclusion. I also take the view that there are mechanisms whereby people don’t complain of everything they have on every occasion that they might see me.[51]
He then indicated that he would have expected her to mention it if it had been a problem (ibid).
[51] T147
Dr Gadd explained his view on causation as follows:
I say that on the grounds that the causes for exacerbation of back pain are very complex. We don’t entirely understand all the factors involved but there is a certain amount of protection against back symptoms. For example, from the muscle supports of the back. If people lose the endurance or power of those muscle supports they can develop symptoms at a later date, so it may not be directly related to the accident but indirectly related to the accident due to their inability to maintain that muscle function for a period when they are no longer at work.[52]
[52] T149
Dr Gadd is clearly thinking in terms of possibilities rather than probabilities. His opinion is based upon an acceptance of the plaintiff’s evidence about the symptoms despite her failure to mention them at the relevant time.
Dr Osti
In his first report, dated 4 January 2008, at page 3, Dr Osti said that the plaintiff told him that after the laminectomy in 1980, she had been:
… able to resume unrestricted duties as a registered nurse for many years with no ongoing symptoms. (My emphasis)
Further, Dr Osti said that the plaintiff told him that, after the 1998 accident:
She was able to return to unrestricted nursing duties afterwards and did not seek ongoing treatment and/or required time off between that time and the accident of 2005.
(ibid)
As to the onset of symptoms after the accident, Dr Osti said he was told by the plaintiff that she had been aware of pain in the neck and lower back ‘almost immediately’ after the accident.[53]
[53] T358
The plaintiff told Dr Osti that about six weeks after the accident, when she returned to work, her back pain had ‘deteriorated significantly’, and had continued to deteriorate since then (report, 4/1/08, page 2).
Based on this information, Dr Osti expressed the view that the plaintiff’s injuries were ‘attributable to the subject accident’ (report, 4/1/08, page 4). Clearly, Dr Osti had been labouring under significant misinformation from the plaintiff when he expressed this opinion.
Dr Osti acknowledged, having been made aware of the plaintiff’s pre-2005 accident symptomatology, that he had been unaware of how severe it had been. He said:
Obviously the more serious the problems were – I mean, I don’t want to try to not completely shut myself from like objective evidence, I mean if there is objective evidence the woman had ongoing problems with her back to a point where she was seeking medical advice on a regular basis, to the point where she was undergoing treatment such as acupuncture or physiotherapy for pain relief, and having x-rays, which is I think quite significant, although we know that complaint x-rays are still not generally useful, it implies that the general practitioner was concerned or felt there was a need for reassurance or whatever to order these x-rays, then obviously it is significant.[54]
[54] T365
He continued:
But what you can say, is that if there had been a pattern of increasing pain in [sic] disability and then this woman has a few months after an accident a significant deterioration, and there is actually a significant time of no real change after the accident, I think you are perfectly entitled to say, well this woman was deteriorating, the accident has nothing to do with this deterioration because there has been this fairly significant gap where she didn’t complain of any sudden worsening of pain. The fact that she had a greater deterioration a few months later is probably because she was probably deteriorating.[55]
[55] T367
So the assumptions upon which Dr Osti based his opinion that the plaintiff’s back symptoms were attributable to the accident were:
·the plaintiff had no symptoms after the 1980 laminectomy (which the plaintiff contradicted in evidence at T73);
·the plaintiff had no ongoing treatment or time off work between 1998 and the 2005 accident (what is clearly contradicted by the general practitioner case notes and the evidence of Drs Soong and Gadd);
·the plaintiff had been aware of low back symptoms almost immediately after the 2005 accident (which the plaintiff contradicted in evidence at T34‑5 and T196);
·the plaintiff’s back pain became significantly worse when she returned to work in September 2005 (despite the fact that she made no complaint of low back pain to a doctor until, at the earliest, 1 November 2005).
In evidence, Dr Osti made it clear that the issue of causation depends upon whether a ‘temporal link’ exists between the accident and the onset of the plaintiff’s symptoms. He said:
Now the issue is … that I would agree with Mr Ward, that if there is a very significant gap between the accident and when she actually complained of increased pain, because at the end you have to draw the line and obviously this is a degenerative condition, not traumatic. So when somebody becomes compensable, if there is a clear temporal link, that’s the way I would say, if there is a temporal link, this woman suffered from a fractured sternum, she jarred her back, she explained her back was worse, and then gradually gets worse, I think it’s reasonable to say that the accident was a very significant factor. If the temporal link is lost and there is a very significant period, not just days but months, where there is no objective evidence that the back was any worse, then I think we are entitled to say, well, irrespective of what she was before, irrespective of laminectomy and whatever, there is no clear connection and this is just a spontaneous deterioration of which some people get.[56]
[56] T370-1
On this topic, there was general agreement between the specialists.
Dr McCulloch
Dr Glenn McCulloch, a consultant neurosurgeon, expressed his opinion clearly and succinctly as follows:
If there is to be an aggravation of pre-existing degenerative changes in the spine by an accident, one would expect there to be a significant degree of back pain within a short period of time of the accident. By that I mean within a day or so. The scenario of no pain at all for some weeks or months and then a subsequent problem doesn’t make any sense at all because there has to be some sort of trauma to the spine at the time to cause the subsequent worsening. Trauma to the spine producing, for example, an injury to a disc or a strain of a ligament is painful, so there should be pain. If you perhaps dilute it down further and say what about the proposition that there has been an injury of a lesser degree which has caused an injury which is not painful but subsequently produces the symptoms and requires surgery; again, I have great difficulty in accepting that’s the case because an injury such as a lumbar disc, ligamentous tear, aggravation of apophyseal joint is a very painful condition. So without that clear-cut history of pain I find it impossible to find a nexus between the two.[57]
[57] T381
Dr McCulloch, like Dr Osti, said that it is not necessary that there be any trauma at all to produce a spontaneous increase in symptoms – it can be minor trauma such as sitting for a prolonged period on an aeroplane (as in the Bali holiday), sitting at a desk for a prolonged period (as occurred in 2006), bending to pick up a child, or:
There are a number of patients who worsen for no apparent reason; they wake up and their back is worse than it has been for months.[58]
[58] T382
Dr Jackson
Dr Robin Jackson, like Dr Osti, initially relied on the plaintiff giving a history that she was immediately aware of chest pain, neck pain and low back pain after the accident.[59] Further, he noted that she told him she had been ‘brilliant’ after the 1980 laminectomy, with no back or leg pain afterwards, until about six years before, when she became aware of some aching after a long shift which would settle overnight.[60]
[59] T419
[60] T421
This was clearly inconsistent with the general practitioner case notes, which Dr Jackson subsequently read. These demonstrated that the plaintiff’s problems were much more extensive than that. He expressed the view that if the plaintiff’s back pain was causally connected with the 2005 accident, he would expect symptoms within 48 hours, 72 hours maximum.[61] He rejected the idea that the sternal pain would have masked any low back pain, pointing out that it would have masked the neck pain as well if that was the case.[62] He said:
Mrs Farrington is, I believe, to be an intelligent woman. I believe she would be well aware – she was certainly willing to complain of the pain in her neck and chest, I would not accept the fact that she had any pain in her back – or if you had postulated, and it is a postulation, if she did have any pain in her back at the time of the accident it was not increased at all or she would have reported this.[63]
[61] T424
[62] T427
[63] T442
Like Dr McCulloch, Dr Jackson said that specific trauma is not a necessary pre-requisite of a sudden onset or exacerbation of symptoms. He said:
It can occur quite spontaneously and often does do so in the absence of any trauma. It can occur with even very minor trauma, trauma does not have to be major or even moderate, it can occur with even very minor trauma. In fact I think it is generally accepted that in many instances there is no trauma involved.[64]
[64] T429
As to whether the plaintiff’s back symptoms were attributable to the accident, Dr Jackson said:
Mrs Farrington had pathology in her lumbar spine of a degenerative disc at L5/S1 secondary to her problem when she was a student nurse and with some influence from the surgery undertaken, which of necessity involves removal of portion of the disc. She had pathology that made her vulnerable to any trauma at any time. Even in the absence of the car accident, she may in fact have driven the car home that night, gone to step in the door, bent down to pick something up off the door step and had severe pain in her back. It is totally unknown, it could have happened at any time and in any circumstances.[65]
[65] T429-31
Dr Jackson made it clear that it is his opinion that the motor vehicle accident was not the cause of the plaintiff’s back symptoms (ibid).
Conclusions
The onus is on the plaintiff to establish, on the balance of probabilities, that the motor vehicle accident, which was brought about by the defendant’s negligence, caused the plaintiff’s injuries, including an aggravation of her pre-existing (but asymptomatic) degenerative back condition.
Mr Possingham, counsel for the plaintiff, referred to the judgment of Smith DCJ in Millbrook v Davies,[66] and I agree, with respect, that his Honour has helpfully summarised the relevant principles:
As to the issue of whether the claimed disabilities, namely the psychological or psychiatric injuries and the migraine headaches, predated the accident or were likely to emerge in any event, I remind myself that the liability of the defendant is confined to the injuries caused by the accident. Whilst such liability does not extend to disabilities which result from pre-existing conditions, if a pre-existing condition is exacerbated by the effects of the subject collision, then it will be compensable to the extent of that exacerbation. So too, the defendant is not liable for disabilities which were going to arise irrespective of the accident. However, if the accident accelerated the onset of these disabilities and/or exacerbated them, then to that extent the defendant will be responsible (see Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164).
His Honour also referred to the remarks of Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden at page 168, where their Honours discuss an onus on the defendant once the plaintiff has shown a ‘prima facie case that incapacity has resulted from the defendant’s negligence’. This has been overtaken by the enactment of s 35 of the Civil Liability Act 1936, which states:
In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
[66] [2004] SADC 66

The plaintiff’s evidence at its highest is that her lower back symptoms did not increase after the 2005 accident for a period of about six weeks, until late September 2005, when she worked four shifts before the holiday to Bali.
Taking into account the evidence of the medical specialists, including the specialist called by the plaintiff, and who operated on the plaintiff’s back in 2008, that is too substantial a delay to allow a conclusion that there is a temporal connection between the accident and her lower back symptoms.
Indeed, I am not satisfied on the balance of probabilities that the delay was as short as that. The first general complaint of back pain was recorded by Dr Soong on 1 November 2005, more than 10 weeks after the accident. This complaint was at no higher level that the plaintiff’s several complaints of similar pain prior to the 2005 accident. The first complaint of more severe sciatic pain radiating into the plaintiff’s legs was made to Dr Gadd on 10 January 2006, almost five months after the accident.
I am unable to accept the plaintiff’s evidence at face value that her pain steadily increased from the time of the accident. Her evidence was unreliable and often self-contradictory on this issue. Her evidence contradicted her own pleading that her back condition was asymptomatic before the accident. She has given contradictory and factually incorrect histories to the doctors.
I take into account Mr Possingham’s submissions that the plaintiff may have been preoccupied with her other symptoms, and not noticed her back symptoms until the other symptoms began to settle. I find that unlikely. Back symptoms are notoriously painful and affect movement, sleeping and many other aspects of life. The plaintiff was aware of her neck symptoms throughout.
Furthermore, this does not sit comfortably with the plaintiff’s own evidence that she was aware of her back symptoms and did complain of them.
Mr Possingham also submitted that the medication prescribed may have also confused the picture. If that was the case, I fail to see how it did not hide the plaintiff’s other symptoms as well.
The only conclusion I can draw is one based on contemporaneous and objective evidence of the plaintiff’s complaints. On that basis, the earliest time that the plaintiff’s lower back symptoms rose above pre-accident levels was in January 2006. In those circumstances, I find that there is no temporal connection between the accident and the plaintiff’s lower back symptoms, and hence a causative link between the two has not been established.
For those reasons, I find that the plaintiff suffered a soft tissue (whiplash) injury to the neck, and a fractured sternum in the accident. These injuries caused severe and disabling pain, which had eased to the extent that the plaintiff returned to work six weeks later.
The plaintiff’s evidence was that the pain associated with those injuries lingered until they resolved completely within weeks of her return from Bali in October 2005, a period of almost three months after the accident. I accept that evidence.
The above conclusion does not in any way detract from the seriousness of the plaintiff’s back condition since it worsened substantially in early 2006. Nor is it suggested that the plaintiff’s complaints of pain and disability in the ensuing years, leading up to the operation in 2008, and the loss and damage she has suffered as a result, are anything other than genuine.
In my view, the plaintiff has reconstructed events in her mind leading to a genuine belief that there is a causal link between her back symptoms and the 2005 accident. Having regard to the objective evidence, however, I am not satisfied on the balance of probabilities that such a link exists.
Having regard to the provisions of s 34 of the Civil Liability Act, the defendant’s negligence was not a ‘necessary condition of the occurrence of the harm’. In other words, the plaintiff has not established on the balance of probabilities that, but for the defendant’s negligence, she would not have suffered the pleaded injury to her back (see Strong v Woolworths Ltd[67]).
Damages
[67] [2012] HCA 5
Non-Economic Loss
It is therefore necessary to assess the plaintiff’s damages for non-economic loss according to the scale provided in s 52(2)(a) of the Civil Liability Act. Clearly, the requirements of s 52(1)(a) of the Act have been satisfied, namely that the plaintiff’s ability to lead a normal life was significantly impaired by the injury for a period of at least seven days.
Section 52(2)(a) provides that the plaintiff’s non-economic loss should be assigned a numerical value on a scale from 0 to 60. A case where the non-economic loss is not severe enough to justify any award of damages would attract a value of 0, and 60 reserved for a case where a person suffers non-economic loss of the ‘gravest conceivable kind’.
The plaintiff complained that her neck was painful for about a year after the 2005 accident. There is one note of a complaint of neck pain to Dr Soong on 1 November 2005.[68] There is a reference in the medical notes to ‘neck’ symptoms on 18 February 2011, but this was not referred to in evidence. In all the circumstances, I am prepared to find that the plaintiff’s sternal and neck injuries had substantially resolved within weeks of the Bali trip,[69] but that she had occasional symptoms for up to a year after the accident.
[68] T143
[69] T72
In this case, where the plaintiff suffered severe neck and sternal pain for about a month, gradually resolving over a period of almost three months with occasional ongoing neck symptoms, I consider that a value of 5 on that scale appropriately represents the severity of the injuries caused by the 2005 accident.
Since the accident occurred in 2005, and applying the provisions of s 52 of the Civil Liabilities Act, in particular ss 52(2)(c)(i) and 52(2)(d), the appropriate figure for non-economic loss is $6,110.
Past Economic Loss
Mr Possingham told me that his client was paid sick leave for the period in 2005 before she returned to work in September. There is no claim for loss during that period, nor is there a suggestion that any depletion of entitlement to sick leave should result in an increase in general damages.
Gratuitous Services
The plaintiff’s husband was required to assist her during the period of the accident-caused incapacity. I agree with the submission of Mr Ward that an award of $1,000 is sufficient compensation under this head.
Special Damages
These have been agreed at $4,475.05. There will be an award of this amount.
There will be judgment for the plaintiff for:
Non-Economic Loss  $6,110.00
  Gratuitous Services  $1,000.00
  Special Damages  $4,475.05
  _________
$11,585.05
_________
Consequential Orders
I will hear counsel as to any consequential orders.