Josifoski, L. v Mobbs, S.D

Re: LILIANA JOSIFOSKI
And: STEPHEN DONALD MOBBS
No. G50 of 1988
FED No. 778
Personal Injury

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Foster(1) and Lee(1) JJ.

CATCHWORDS

Personal Injury - Assessment of damages - Whether award inadequate - Principles of appellate review.

Federal Court of Australia Act 1976, s 27

Warren v Coombes (1978-1979) 142 CLR 531

Brunskill v Sovereign Marine and General Insurance Co. Ltd (1985) 62 ALR 53

Voulis v Kozary and Ors (1975) 50 ALJR 59

Paterson v Paterson (1953) 89 CLR 212

Chambers v Jobling (1986) 7 NSWLR 1

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538

HEARING

CANBERRA

#DATE 13:11:1990

Counsel for the appellant: J. Brewster

Instructed by: Gary Robb and Associates

Counsel for the respondent: P. Neil

Instructed by: Crossing Power Haslem

ORDER

The appeal be allowed.

The judgment be set aside.

The matter be remitted to the Supreme Court for further hearing and determination in accordance with the findings and reasons of this Court.

The respondent to pay the appellant's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a decision of Gallop J given in the Supreme Court of the Australian Capital Territory on 19 September 1988. The proceedings before his Honour were a common law claim for damages for injuries, disabilities and consequential losses incurred by the appellant in a motor vehicle accident which took place on 21 April 1983. Liability was admitted, and the matter came before his Honour for the assessment of damages. His Honour entered judgment for the plaintiff in the sum of $27,500.30. The appellant appeals to this Court on the basis that this award was inadequate.

It is clear that the matter had a somewhat unfortunate history. The hearing commenced on 10 December 1987 when both parties tendered bundles of medical reports. It was not completed on that day, an adjournment being necessary through the unavailability of medical witnesses. It was not resumed until 14 June 1988, the long period of adjournment having the effect, as his Honour pointed out, of rendering "all the more difficult the resolution of the factual issues on the question of damages". It appears that, during this period of adjournment, the plaintiff's solicitors qualified a further expert medical witness Dr White, a neurologist, who gave evidence before his Honour at the resumed hearing, and to whose evidence we shall refer later.
The hearing concluded on 27 June 1988 and his Honour gave what were described as "interim reasons for decision" on 30 June 1988. The reasons for his so doing are not apparent from the material in the appeal book. We were advised, however, by counsel appearing on the appeal that this course was adopted because there was an acknowledged lack of evidence at the conclusion of the hearing from which any calculation of an appropriate award for diminution of earning capacity could be made. It seems that there was also a deficiency of evidence in respect of out of pocket expenses. In the event, it appears that there was general agreement that his Honour should determine the factual issues relating to the plaintiff's alleged injuries and disabilities and their connection with the accident and that, consequent upon a decision being reached in respect of those matters, further evidence would be called if no agreement could be reached between the parties on any outstanding matters. Because his Honour found that the effects of the accident upon the plaintiff were very limited in comparison to those claimed and that they resulted in only a short period of incapacity for work, it became unnecessary to call evidence before his Honour as to any general diminution in earning capacity. Accordingly, no evidence on that question is before this Court, with the result that, in the event of the appellant succeeding, the unsatisfactory situation obtains of the matter having to be remitted to the Supreme Court for further hearing on at least that issue. As it was, some further evidence was needed before his Honour could give final judgment in respect of the findings that he had made. As indicated, judgment was given on 19 September 1988.
In this appeal, the appellant asserts that his Honour erred in reaching findings in respect of the effect of the accident upon her, which findings he expressed as follows: "I have come to the conclusion that whilst the plaintiff probably suffered some minor soft tissue injury to the neck in the subject accident, and consequential headaches, all her symptoms referable to the subject accident and the very minor injuries that she sustained could not be accepted as having endured any later than when she returned to work in October 1983". Consistent with this general finding, Gallop J awarded general damages in the sum of $15,000 together with a wage loss of $5,015.38 covering the period from the accident to her return to work. These two sums, together with out of pocket expenses which were later provided to him and a calculation of "the Fox v Wood component", and an appropriate amount for interest led to the final figure in respect which judgment was entered.
The appellant asserts that, in reaching the conclusion set out above, his Honour erroneously failed to attribute to the accident three major areas of disability subsequently suffered by her. These areas were respectively, injury to certain cervical discs resulting in major surgery in 1986, persistent intense and disabling pain at the top of her head, and a persistent and disabling anxiety-depression reaction. It is submitted on her behalf that the evidence required that these conditions be found to exist and to be causally connected with the accident. It is sought, therefore, that this Court reverse his Honour's findings on these matters.
On the hearing of the appeal "the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact..." (Federal Court of Australia Act 1976, s 27). The correct approach to be adopted by an appellate court in the hearing of such an appeal was considered by the High Court of Australia in Warren v Coombes (1979) 142 CLR 531 at 551, where, in the judgment of Gibbs ACJ, Jacobs and Murphy JJ it was said:

"Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it...".

Again, at p 552, their Honours say,

"...we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the appellate process. The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide a particular question then they are themselves, or if, after giving full weight to his decision, they consider it was wrong, they must discharge their duty and give effect to their own judgment".

Further consideration was given to the question by the High Court in Brunskill and Anor v Sovereign Marine and General Insurance Co Limited and Ors (1985) 62 ALR 53 at 56-7 where the Court said:

"The authorities have made clear the distinction which exists between an appeal on a question of fact which depends upon a view taken of conflicting testimony, and an appeal which depends on the inferences from uncontroverted facts. In the former case, to use the well-known words of Lord Sumner in SS Hontestroom v SS Sagaporack

(1927) AC 37 at p 47, which was cited in Paterson v Paterson (1953) 89 CLR 212 at 222: `...not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case': see also Warren v Coombes (1979) 23 ALR 405 at 412; 142 CLR 531 at 537, and following."

The Court went on to indicate that, in circumstances where a trial judge's decision appeared to be based upon the view he had formed of the credibility of witnesses, the question was "whether the decision of the learned trial judge can be seen to be clearly wrong on grounds which do not depend merely on credibility; for example, on the ground that the evidence which was accepted was inconsistent with established facts or was glaringly improbable". Voulis v Kozary and Ors (1975) 50 ALJR 59 was such a case. See also Paterson v Paterson (1953) 89 CLR 212 at 222 and Chambers v Jobling (1986) 7 NSWLR 1.
The present case was conducted to a very large extent by the tendering of expert medical reports without their authors being called to give oral testimony. Indeed, in rejecting the plaintiff's claim that in the accident she had suffered significant injury to two cervical discs, his Honour accepted the evidence of Dr Geoffrey Vanderfield which was given only by way of a written report dated 10 September 1986. It may be noted that the doctor made the examination of the plaintiff which formed the basis of this report only two months after another neurosurgeon, Dr Robson, had performed an operation upon these discs, in which they were excised and the cervical spine was fused at those levels. Dr Vanderfield, after a discussion of the plaintiff's medical history, including this operation, expressed the view that "the subsequent diagnosis of two broken cervical discs requiring surgical treatment is puzzling and I would not attribute them to the accident in question". It is a basic submission in this appeal that his Honour, in the light of the whole of the evidence including the sworn testimony of the plaintiff, should not have accepted this medical opinion as determinative of her claim that she had received significant neck injury in the accident.
His Honour also, as already indicated, refused to attribute the plaintiff's complaints of head pain and depression to the accident. In reaching this decision he, inferentially, rejected medical opinion appearing in reports and, to an extent, in oral testimony which tended to demonstrate a causal connection between the accident and the complaints. His Honour's reasons for so doing are not spelt out in any great detail in his reasons for judgment but it is tolerably clear that this rejection must have been based, at least to some extent, upon a view that the history given by the plaintiff to the relevant doctors was not in itself reliable and did not form a sufficient basis for the opinions expressed.
It is therefore important to determine whether, in assessing the credibility and reliability of the plaintiff's evidence his Honour was in such a position of advantage as, consistent with the principles set out above, to render it inappropriate for this Court to intervene if it were otherwise so minded. We have come to the conclusion that this is not so. There is nothing in his Honour's reasons for judgment which expressly indicates that he formed an adverse view of the plaintiff based upon her demeanour in the witness box and her manner of giving evidence. It is possible to discern that his Honour may have held the view that she, as is, of course, the case with many plaintiffs, was tending to overstate her case when describing her injuries and disabilities. There is, however, no indication that his Honour took the view that she was deliberately misrepresenting matters germane to the issue of causation. On the other hand, his Honour obviously formed an adverse view of her reliability, particularly in relation to the provision of relevant history to medical witnesses, based upon material appearing in her sick-leave records with her employer.
Before coming to this aspect of the matter, it is desirable to give a short account of the plaintiff's personal history as it appears from the uncontested evidence in the case. She was born in Yugoslavia on 17 May 1948 and, accordingly, was nearly 35 years of age at the date of the accident. She came to Australia in 1962, completed her schooling in 1964, having reached Year 10, and then undertook a typing course in conjunction with employment in the Australian Government Printing Office. After finishing the course she commenced work in the Bureau of Census and Statistics as a typist and later as a word processing operator. She was in this employment at the time of the accident. She was married in 1970 and had two sons born in 1978 and 1982 respectively. She had returned to her employment, after a period of maternity leave, shortly prior to the occurrence of the accident. Her sick-leave records in relation to her employment from 1967 onwards were introduced into evidence and led to the situation which we now summarise.
When asked in her evidence in chief about physical problems prior to the accident she replied that she had had no problem other than "just a chill in my back", which was treated in three days by a physiotherapist. She could not tell how long that was before the accident. She had maybe a couple of days off work with this problem and there had been no other problems with her back before the accident. She also gave evidence that she had had no other major health problems before the accident. She was cross-examined on these statements with reference to her sick-leave record. Before she was taken to specific entries in that record, in answer to questions by the cross-examiner, she confirmed that her pre-accident health had been good apart from the matter referred to above. In particular, when asked whether she had had any problems with headaches prior to the accident she said she had not. However, when asked whether she was sure of that, she answered "Well, I never experienced pain in my head before the accident". The question as to her having any prior "problems with headaches" was put again and she then responded "Not more than average person".
We would remark that this passage in the evidence is clearly open to the interpretation that the plaintiff, when initially asked about "headaches" answered in terms of the type of head pain she claimed to have suffered since the accident, it being this type of headache that she had not experienced previously, although she had had headaches of the type experienced by an "average person". In fact, the sick leave record revealed that the plaintiff had taken time off work for headaches and for low back pain over a period of years prior to the accident. It was put to her in cross- examination, as was the case, that she had taken time off from her employment in 1969 for both low back pain and for headaches. She said she could not remember and made the comment, which would seem to be not entirely inapt, that "'69 is a long way to remember". She was shown the records for the year 1969 which did in fact contain entries for sore back, headaches and migraine headaches. She appears to have readily accepted that the record was accurate but was unable to recall what the entries related to. She gave similar evidence in relation to similar entries in 1971 and 1972.
Similar questions were asked in relation to the years 1973, 1974 and 1975. There were references in the records to some gastric problems, abdominal pain and dizziness and further reference to headaches. After she had been taken to what appears to have been all relevant entries in the records from 1969 up to the date of her accident she was asked this question: "Having looked at those records would you now agree with me that since 1969 you have been suffering from low back pain?". She answered "Looking at that, yes". She was then asked "And just looking back over that record would you agree with me that since 1969 you have been suffering a great deal of headaches have you not?". She answered "Well, headaches, I know I had them just like anybody else had them. You get tension headache, you take the day off". She was then asked "Can you tell us when you were having these tension headaches and taking days off, where the pain appeared?". In answer she demonstrated a position which appears, from the evidence, to have been on the left and right side of the head over the forehead. She agreed she must have had headaches in that position requiring her to take days off. Although the matter is not free from doubt, a reading of this evidence in comparison with evidence given later, in which she indicated the position of the headaches which she claimed to have been a troublesome sequel of the accident, would seem strongly to suggest that these latter headaches were experienced in a different part of her head.
The reference to pre-injury back pain would appear to have had no great significance in the case. The plaintiff did not claim damages in respect of back injury occasioned by the accident. Indeed, medical evidence called by her would seem to have excluded it. Its only significance would appear to be, therefore, its effect upon the plaintiff's credit. She had spoken of only one significant incident of back pain related to a "chill". It appeared from her records that there had been other occasions. The effect of all this upon her general credit, viewed objectively, and without the assistance of her demeanour when answering questions relating to it, would appear to be fairly minimal. When confronted with entries in her medical records, it seems that she conceded readily enough that her recollection was in error, a fact not altogether surprising when one considers that a large number of the entries were more than 15 years old. It might perhaps have been thought that, as well as demonstrating periods of time off work for medical reasons, the records were also clear evidence of the fact that the plaintiff had been in constant employment, without any significant gaps for health reasons, from 1966 up to the date of her accident, and that that employment had been with the one employer.
It is clear however, that his Honour was influenced adversely to the plaintiff's case by these matters arising from her pre-accident employment medical records. He referred in his reasons to the plaintiff's having a "quite extensive history of sick leave on account of headaches" and to the fact that "she had been beset with headache problems prior to the accident". There can be no doubt, that these views of her pre-accident headache difficulties coupled with the fact that medical reports tendered in the case showed her as having given no history of these matters to examining doctors caused his Honour to form an adverse view of her reliability. Whilst it is clear that the plaintiff's assertion of absence of back pain or headaches before the accident does not accord with the medical records, we have come to the conclusion, with respect, that it is equally apparent that the medical records do not support his Honour's descriptions of her pre-accident situation quoted above. In fact, reference to these records reveals that over seventeen years of service the plaintiff lost time through headaches on only eight occasions, the last being in 1974 and that on none of those occasions did she lose a full day's work. This record probably compares quite favourably with the record of any average employee in the type of work in which the plaintiff was engaged. No doubt it was because of the disjointed way in which the case was presented, that his Honour fell into this error. It is clear from his reasons that it adversely affected his view of the plaintiff's general credibility and also led him to place reduced reliance upon medical reports tendered in her case, insofar as they appeared to be based upon an incorrect history given by the plaintiff as to the absence of significant headaches before the accident. In our view this result should not have flowed from the entries in those records.

As previously indicated, the trial judge does not, in his reasons, specifically state that he does not accept the plaintiff as a credible witness based upon observations of her in the giving of her evidence. The same comment applies in respect of the testimony of the other witnesses who gave oral evidence. Accordingly we consider that we are in no position of disadvantage vis-a-vis his Honour in determining the case. We turn, thus, to a consideration of the evidence.
It is through the evidence of the plaintiff that the essential facts relating to the accident, and its alleged effects upon her are presented. We can see no reason why her account of relevant matters should not broadly be accepted subject to making some discount for possible overstatement. By adopting this approach, we consider that, in the circumstances of this case, we can effectively do justice between the parties. We come then to her evidence, and consider it in conjunction with the other evidence in the case.
It is correct, as his Honour notes, that her account of the accident and its immediate effects upon her is less than precise. It sufficiently appears, however, that she was a front seat passenger in a vehicle which collided with another at an intersection, the latter vehicle having failed to give way to its right. It does not appear that the impact was a major one but it, nevertheless, was unexpected and traumatic. The plaintiff was holding her young child in her arms at the time of the impact. In response to the question "What happened to you in the accident?" she said "Actually I did not remember nothing. I was shaken and I was frightened. I could see blood all over the place. It was my oldest son that got hurt. I just remember holding my baby tight". In response to a further question as to her remembering some part of herself (apparently at the time of the accident) she said "Yes it was all shaken up. It was all stiff. I felt like I was not there, I was above looking at everything". It is clear from the context of this question and answer that she was attempting to describe her subjective experience of a state of shock. This was further described by her in other answers in the same sequence. It is apparent that she was shocked and shaking and that by the time the ambulance arrived, which happened fairly promptly, she was able to notice that she could not feel her left arm. This arm was x-rayed when she arrived at Royal Canberra Hospital because she "could not move my arm at that stage". Her neck was also x-rayed because "it was not sore, it was very stiff because - like it did not belong to me". She says she was required to stay in the hospital for four hours "because of the head injury". Further answers given in cross-examination established that she had hit her forehead on the windscreen with considerable force and also struck her left forearm on the dashboard.
The next day she was stiff all over and her head "was in pain". She elaborated on this by saying that "the top part of my head was very sore and the front part of my head was sore". Also her left arm was very, very sore.
She rested in bed over the next few days, her children being cared for by her sister. She then went to see Dr Beckett, her general practitioner. He prescribed physiotherapy. The attentions of the physiotherapist caused problems of dizziness and faintness whenever the back of her neck was touched. That part of the treatment was abandoned.
Dr Beckett accepted a history of the accident from the plaintiff to the effect that she had hit her head on the windscreen and her body had been buffeted against the car door. When he first examined her he found "muscle tenderness and bruising of her left arm and right shoulder, and extensive muscular spasm of her cervical spine muscles". He records in a report which was tendered, that after commencing on physiotherapy she returned two weeks later "with severe headaches, vomiting, memory loss, faintness and inability to concentrate". A brain scan was normal. He regarded her as having a "severe flexion injury to her neck", her condition being "moderately severe" and consistent with the stated cause. He was of the view, on 26 May 1983 that she would be off work for at least a further two months. He, quite obviously, thought the situation warranted her being examined by a specialist. He sent her to Dr Chandran, a specialist neurosurgeon.
She was examined by Dr Chandran on 9 June 1983. He furnished a report dated 13 July 1983 which was tendered in evidence. He obtained a history of the plaintiff hitting her head on the windscreen in the accident and later developing pain in the neck and headaches. When she saw Dr Chandran she was complaining of headaches, along the left side of her head, shaking, hot feeling over the head, impairment of memory and difficulty in sleeping and reading. At the time of the examination she did not have any neck pain. She told him that physiotherapy usually brought on pain on the right side of the neck and the shoulder. The doctor made a clinical examination in which he found no "neurological deficits" in the upper limbs. At that time her neck showed a full range of movements with no pain or tenderness. He found her tense and anxious. He reassured her that "there was no evidence of any injury to her cervical spine at the time". He considered that the headaches were consistent with " a migraine type of headache". He prescribed medication for them. He thought she had possibly received some soft tissue injury to the neck, with her symptoms being attributable to this injury as well as a state of anxiety brought on by the injury. He noted that she had "a history of headaches with no previous history of such a condition", by which he, presumably, meant anxiety. He thought the headaches were a type of migraine probably brought on by the accident and that the symptoms were likely to settle down with time, treatment and reassurance. He further noted that she was being treated for depression.
The evidence does not make clear how the plaintiff was being treated for depression at that time. It may have been through Dr Beckett. In any event the general practitioner obviously thought it desirable that she receive psychiatric assistance. He referred her to Dr John Saboisky, a consultant psychiatrist who saw her on 16 November 1983. He also reviewed her on 12 December 1983, 9 February 1984 and 9 April 1984. On the first occasion her history was of "recurrent severe headaches predominantly over her forehead which she reported was worse whenever she combed her hair or layed on a pillow". These had caused distress and when the pain was severe she became quite depressed and tearful. Memory, concentration and sleep had been adversely affected. She had become "totally disinterested in sexual relations". The blow to her forehead in the accident had not produced "any discernible trauma but produced a state of post-traumatic anxiety and confusion". It may be noted that this latter description appears to accord fairly closely with the plaintiff's evidence. He obtained further history that prior to the accident she had been a happy and gregarious person without significant problems within her family and had worked for 17 years in clerical and later word processing work. The doctor found her to be significantly depressed. She was on anti-depressive medication. He suggested certain changes in this medication resulting in some temporary improvement in her headaches and mood difficulty. He reported that she was keen to continue her work and that he encouraged her to do so. He expressed the opinion that the plaintiff was suffering from a post-traumatic depressive illness with prominent headaches and that her mood lifted with anti-depressant treatment but that her headaches had fluctuated. He considered it difficult to offer a long term prognosis.
It is clear that during the period when the plaintiff was seeing these specialists, she made an attempt to return to work. Her evidence as to this period is somewhat sketchy. She speaks of seeing Dr Chandran but not remembering whether he provided her with any treatment. She noticed in the few months after the accident that her memory was not good, the stiffness in the neck was going away and the arm pain was going away but that the pain on the top of her head was still the same although the forehead was not as painful. The head pain was obviously occasioning some concern as she recollects being sent by Dr Beckett to an eye specialist Dr Saunders on the basis that some problem with eyesight might be causing the pain. It is apparent that she was seen by Dr Saunders on 17 August 1983 who could find no problems with her eyes but expressed the view that the head and neck injuries suffered in the accident could explain her headaches. The plaintiff also gave evidence of seeing a Mr Rome, a psychologist, on reference from Dr Beckett, who tried to hypnotise her "so I could forget the pain and just sort of ease the pain". Apparently this treatment was unsuccessful.
The plaintiff gave evidence of resuming work on 1 October 1983. She said "I really wanted just to go back to work and I wanted to try my best and as I was getting on at work I could see that I could not keep up with the work". She said that she could not concentrate and would end up in tears and need help from her girlfriend who used to come and help her finish her work. She stopped working again after about six weeks because she could not keep up with the work and because of the pain in her head. Her back also started to trouble her, by which she presumably meant her low back although this was not elicited clearly in evidence. It was after she stopped work this second time that Dr Beckett sent her to Dr Saboisky "because Dr Chandran said he could not see anything wrong with me". She further stated that Dr Beckett had suggested that she should go and see a psychiatrist as he might help cope with the pain. She remembers that Dr Saboisky put her on some drugs and that they made her feel "like a zombie". They did not do anything for the pain.
She returned to work in December 1983 and, on that occasion worked through until 9 May 1984. She suffered pain in the top of her head and her back. It appears that she was referred to a pain clinic conducted by Dr Lithgow. He provided her with a "teno machine" which she said she used on her neck and that this helped her to sit up for a while. However, the more she tried to concentrate at work the more pain she used to get in her head. She realised that she could not do her work properly with the result that she stopped on 9 May 1984. She made further attempts to work during 1984 but could not cope and finally left work on 17 October of that year. It appears that during this period she received additional treatment from Dr Lithgow by way of injections in the area of the neck. These assisted but their effects would wear off.
There can be no doubt that the learned trial judge would have been assisted by more detailed evidence being provided by the plaintiff as to this extremely important period of time in which were occurring the immediate after-effects of the accident together with their impact upon her personal and working life. Equally, considerable assistance would have been afforded by evidence from her general practitioner, Dr Beckett, who, during this period, had, clearly enough, felt sufficiently concerned about her general condition to refer her to a neurosurgeon, a clinical psychologist, an eye specialist, a specialist pain clinic, and a psychiatrist. Even without the assistance of his oral testimony, it is apparent that these references were for assistance and treatment and were not merely medico-legal in nature. It is also apparent, from the meagre evidence of the plaintiff, that she saw the specialists in order to seek further treatment and in the hope of achieving some beneficial results. There was no suggestion put to her in cross-examination that she was merely seeking to build up some case against the defendant at this time, although it was put to her in general terms, that she was, at the time of the hearing, capable of working and was merely seeking to inflate her damages by remaining off work. She denied these suggestions. In this context, it was also put to her that problems with her lower back, which were not claimed to be accident caused were, in any event, preventing her from working. The plaintiff maintained, as she appears to have maintained throughout, that the pain on the top of her head was the main factor in preventing her from working.
As already indicated, his Honour found that all significant effects of the accident upon the plaintiff had ceased by the time she returned to work in October 1983. We cannot agree. Our discussion of the evidence has proceeded to a point in late 1984 when the plaintiff finally ceased work. The picture that emerges from this evidence is, in our opinion, one of a thirty-five year old wife and mother of two young sons who had been in constant employment for seventeen years, had taken time off in relation to the birth of her children and had, apart from one substantial period off work relating to a low back problem, a sick leave record quite within normal limits. She had given evidence of a desire to continue her working life. She had in fact returned to work in October 1983 after maternity leave for the birth of her second son. She was in employment at the time of the accident. It was not put to her, nor was evidence called to suggest, that at that time she was otherwise than a well motivated and effective worker who was prepared to continue in employment. There was no suggestion that she was, herself, not a happy well motivated person and a good wife and mother before the accident. It is, in our view, on the evidence, necessary to be inferred that the range of treatment undertaken by the plaintiff in 1983 and 1984 was consistent only with the continuance of problems genuinely experienced by her, attributable to the accident, and preventing her at that time from performing her employment.
The question remains, of course, what, if any on-going effects of the accident are established from the time of her giving up work in October 1984? It is convenient, in the first instance, to consider the claim made in respect of damage to her cervical spine. As indicated, his Honour rejected this claim and, in so doing, accepted the evidence provided by Dr Vanderfield's report to which reference has already been made. This evidence must be weighed against other medical evidence in the case and also the plaintiff's account of her problems with her neck and arm. It is clear that Dr Beckett referred the plaintiff to Dr Robson, a neurosurgeon, for further neurological examination early in 1985. Dr Robson reported to him on 6 May 1985 to the effect (inter alia) that the plaintiff had complained to him that she had pins and needles in her left hand, and that the trouble in her arm came on after the car accident in April 1983. He found on examination that the right thumb and index finger were clearly reduced in sensory acuity. He also found that she was very tender over the greater occipital nerve which led him to consider disc trouble in the neck. He was also influenced in this opinion by the plaintiff's reporting to him of her suffering pain in the head from the time of the accident. Dr Robson suggested there should be further investigation by way of myelogram and possibly discogram. These investigations were in fact carried out. They were positive. Dr Robson reported to Dr Beckett on 3 June 1985 that the plaintiff "certainly has disc trouble and she is anxious to go ahead and have it fixed". The relevant discs were those between the fourth and fifth, and fifth and sixth cervical vertebrae. Dr Robson was also suspicious of a disc between the sixth and seventh cervical vertebra. The plaintiff in fact underwent operation on 25 June 1986. At operation the discs at the fourth and fifth, and fifth and sixth levels were in fact found to be ruptured. They were removed and a fusion was effected of the plaintiff's neck at those levels. On 24 November 1986 Dr Robson reported to Dr Beckett that the plaintiff was by then completely relieved of the arm problems and that fusion was progressing satisfactorily. On 27 April 1987 a further report was sent to Dr Beckett indicating that "beautiful solid fusion" had been effected and that plaintiff's arms were now better. Dr Robson referred to a continuation of headaches at the top of the plaintiff's head. He could not account for this and said it had "a fairly emotional psychiatric ring about it". He also indicated that he had originally thought that it was "the sort of occipital headache that occurs with disc trouble". However, he did not think so any longer, the symptoms being different and, apparently, beyond the reach of surgery.
The plaintiff was also examined by another neurosurgeon, Dr Newcombe, who reported to Dr Beckett on 29 March 1985. This report was relied upon by the defendant. The plaintiff gave to him a history similar to that provided to Dr Robson. Dr Newcombe had x-rays taken of the cervical spine which were within normal limits. It was his view that the plaintiff was suffering from a post-traumatic syndrome and musculo-ligamentous strain in the neck. In his view there was no indication for neurosurgical intervention. It is to be noted that three months later, when myelographic examination was conducted by Dr Robson, evidence of organic damage to the relevant discs was in fact demonstrated. Dr Newcombe was called as a witness on behalf of the defendant. On the subject of the plaintiff's neck, he agreed that Dr Robson's discogram and operation report in fact indicated that there was organic explanation for her symptoms. This matter was not fully explored in Dr Newcombe's evidence. His comment would appear to apply only to the plaintiff's complaints in relation to her neck and arms. It does not seem that Dr Newcombe, any more than Dr Robson, attributed the plaintiff's head pain to organic causes.
To this medical evidence must be added the evidence of Dr Chandran and another neurosurgeon, Dr Andrews, who in 1983 and early 1984 had found no neurological signs in relation to the plaintiff's neck. It must be remembered, however, that, in those instances, reliance had been placed upon plain x-rays and clinical examination. Neither doctor had had the benefit of myelograms, discograms or, of course, operative reports.
Dr Robson was not called as a witness. His reports are silent on the question of causation. Undoubtedly his Honour's task and the task of this Court would have been the easier had the doctor been called and been questioned as to his views, if any, on the relationship between his findings on operation and the accident. As it is, the matter is left in the realm of inference. However, the facts remain that the plaintiff had two ruptured cervical discs and no explanation of their causation is provided in the evidence other than the trauma of the accident. There is no suggestion of any other cause, nor was the plaintiff cross-examined to suggest that there was. The plaintiff gave evidence of having had problems with her hands and of getting pins and needles in her right hand after the accident as well as neck pain. These symptoms were relieved by Dr Robson's operation. It was obviously an aim of the operation to relieve them as their existence since the accident was part of the history that Dr Robson obtained from the plaintiff. There is no doubt that the evidence could be in a more satisfactory state, but in our view, the inference is well open and, in all the circumstances, should be drawn that the injury to the cervical discs, requiring and receiving operative intervention in 1986, after preliminary diagnosis in 1985, is attributable to the trauma of the motor vehicle accident in April 1983. Accordingly the plaintiff is entitled to recover damages on the basis that the accident caused these specific injuries and the disabilities consequent upon them together with all out of pocket expenditure reasonably attributable to them.

It is clear that the headaches of which the plaintiff complains cannot be causally related to the neck injury, the subject of Dr Robson's operation. The operation did not relieve it and, as already indicated, Dr Robson could not attribute an organic cause for it and thought, rather, that the cause should be sought in the psychiatric realm. It is very clear on the evidence that from the time of the accident the plaintiff made complaints of a particular type of head pain centring round the crown of her head. It is also sufficiently clear that that particular head pain was different in kind from pain experienced on occasions prior to the accident and also from head pain related to the neck injury. The evidence demonstrates that from an early stage the plaintiff complained of this pain and also sought treatment for it. After she ceased work in October 1984 she was referred by Dr Beckett to another clinical psychologist a Ms Williams who undertook her treatment in May 1985 and treated her regularly up to the time of the hearing. Ms Williams used the technique of hypnotic analgesia upon the plaintiff with some success. She was able to train the plaintiff in self-hypnosis which enabled the plaintiff to reduce her level of perceived pain. In her report of 21 May 1986 Ms Williams says "Mrs Josifoski is co-operative, motivated and open to any self-help management regimes which are presented to her, and there is no doubt in my mind that her subjective pain experience is both severely disabling and highly distressing to her in her attempts to maintain normal daily life". This statement fairly adequately sums up the plaintiff's own evidence on the effect of the head pain upon her. Indeed, in her evidence and in the history that she has given to most of the doctors who have furnished reports in this case the plaintiff has undoubtedly emphasised the pain in and around the crown of the head as being the most disabling effect of the accident upon her. It is also clear that she has always claimed that it appeared in its present form only after the accident.
It is also clear that the plaintiff has, at all relevant times, claimed that this particular head pain was not relieved by the operation to her neck. Indeed, Dr Robson reports that very fact, whilst making the comment that it appeared to have an emotional rather than an organic basis. Ms Williams, in her oral evidence, confirmed that to her observation the operation had had no effect on this aspect of the plaintiff's difficulties. She also indicated that at all times the plaintiff had indicated that this particular pain was centred around the crown of her head, that it was continual and, when severe, was a burning sensation. The plaintiff's own evidence in relation to this pain was that at times it was unbearable amounting to a sensation that her head would burst, and that it could be exacerbated by attempts to concentrate, particularly at work. For quite some time before the hearing of these proceedings she had been seeing Ms Williams on a weekly basis for hypnotic and other treatment and it was anticipated that this treatment would go on into the future. The plaintiff gave evidence that her general condition, including the constant attacks of this pain, had caused problems in her marriage, that she had lost interest in sexual relations and that her husband was seeing another woman. Ms Williams also provided some counselling in relation to these problems. It seems fairly clear that Ms Williams saw the pain symptoms as having an emotional basis. However, it is equally clear that she regarded them as very real to the plaintiff.
Other witnesses in the case also dealt with the plaintiff's complaints of head pain. Dr Saboisky, a psychiatrist to whom she was referred in November 1983 accepted their existence and severity and related them to post-traumatic depressive illness following upon the accident. He saw her again on 10 February 1988 when he reported the continuance of the headaches after the operation. He noted that, as she herself said in her evidence, she was unable to perform her household chores, was having difficulties in her marriage and had to spend a great deal of each day in resting. He did not discount the possibility of some organic basis for the head pain but, quite clearly, saw it as being bound up in her general depression. He gave the opinion that "regardless of whether it is primarily organic or in combination with psychological factors, I think that there is no doubt that it is related to the motor vehicle accident that she had and the chronic history suggests that it will continue to be an ongoing problem for her".
In 1988, during the period of an adjournment of the case, the plaintiff was examined by Dr White, a neurologist. Dr White gave evidence by report and orally that "it is conceivable that the pain she is experiencing in the back of her head may be consistent with damage to the C2 nerve roots which could be damaged in the sort of neck injury she suffered". He gave his opinion as follows "I think it highly likely that the accident is not only temporally but also causally related to her headache. She struck me as a reliable witness and I felt that her pain was consistent with the injuries as described. I think it likely that there will be some resolution of her pain in the future and I do not think that surgical therapy would be of assistance. Nonetheless, although I suspect her pain will partially resolve I do not think it will be complete and I cannot give a time scale for such improvement".
The learned trial judge rejected this evidence. It does not appear that he did so on the basis of the reliability of the doctor's testimony. He certainly makes no comment to this effect in his reasons. Rather it would appear that it was rejected on the basis that it was obtained very late in the history of the case and was in apparent conflict with the views of qualified neurosurgeons which had been given at a much earlier stage. Indeed, a number of highly qualified doctors had expressed the view that this particular symptom complex of the plaintiff's was inexplicable on any basis other than psychiatric grounds. In such circumstances it was clearly open to the trial judge to accept the evidence of these other witnesses in preference to that of the single witness who ascribed a firm organic basis to the plaintiff's complaints. We do not consider that this finding should, in the circumstances, be disturbed.
However, the plain situation remains that the plaintiff has given a consistent history since the occurrence of the accident to a large number of treating and examining doctors of the appearance of this pain, described by her as very disabling, after the blow to her head. She has been accepted as having the pain and has been treated for it. She has given evidence of its having had a severe impact upon her ordinary enjoyment of life, her ability to work and to conduct her ordinary household duties. She has also indicated that it has profoundly affected her marriage. It is clear from his Honour's reasons that he was in the first place unwilling to accept that the problem was as severe as depicted by the plaintiff and also that he was not prepared to ascribe it to the accident. We have carefully considered the whole of the evidence in this matter and find ourselves in respectful disagreement with his Honour's findings in this regard. We are satisfied, on the balance of probabilities, that, whatever the underlying organic or psychological causes may be, the accident has in fact produced a persistent and painful condition in the plaintiff's head. The very sequence of events points, in our opinion, to a connection between the accident and the onset and continuance of these problems. (Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538)
His Honour dealt with this aspect of the plaintiff's claim and also the general question of emotional problems of anxiety, depression and the like, including, apparently, the plaintiff's matrimonial difficulties as follows: "I reject Dr White's evidence that her continuing complaints of pain at the top of the head, even if they are accepted as being credible, are due to the subject motor vehicle accident. There is no doubt that the plaintiff has emotional problems, but, of course, that is no basis for compensation at the expense of the defendant".
It is clear that, in this passage, his Honour rejected any causal connection between the accident and the plaintiff's head pain and, indeed, any of the emotional problems referred to in her evidence which had been accepted and treated by a number of medical practitioners and psychologists. It follows from what we have said that we are respectfully unable to agree with this ultimate finding. We are of the opinion that these matters are, on the balance of probabilities, demonstrated to have flowed from the subject accident. We are not satisfied that, so far as the head pain is concerned, that it is sufficiently organically based so as to be incapable of improvement in the future. Similarly we do not accept that the plaintiff's emotional and psychiatric problems will necessarily remain as troublesome as they have been over the past years. We are satisfied however that the accident has had a significant impact upon the plaintiff's physical and emotional well being and has greatly interfered with her enjoyment of life.
As previously indicated we find it most regrettable that the evidence is in a state which prevents us from finally disposing of this matter. We are, however, in a position to deal with general damages for past, present and future pain and suffering and loss of enjoyment of life. His Honour's figure of $15,000 must be increased. We reassess it at $60,000.
There will need to be a re-calculation of the amount for out-of-pocket expenses to be recovered in consequence of our finding that the injury to the cervical discs and consequent operation and hospitalisation was attributable to the accident and also the addition of a reasonable sum for treatment received in respect of the plaintiff's emotional problems, including the head pain. It will be necessary for evidence to be received as to these amounts and for some estimate to be made of an appropriate sum to cover future expenditure in these areas. Additionally, some figure will have to be arrived at to be added to that found by his Honour to compensate the plaintiff for loss of earning capacity. This will require further evidence as there is no indication, currently, as to when the plaintiff would have given up work had she not suffered the accident. It will, of course, be necessary to make appropriate awards of interest having regard to the findings that are made.
We therefore allow the appeal, set aside the judgment and remit the matter to the Supreme Court for further hearing and determination in accordance with the reasons and findings of this Court.
The respondent is to pay the appellant's costs of the appeal. No order can be made by this Court in respect of the costs of the proceedings prior to the appeal. Such an order must be left to the Supreme Court upon the further hearing and determination of the matter.

[1990] FCA 778

13 NOVEMBER 1990