Kylie Tricia Kaufman v Wayne Kozak

KYLIE TRICIA KAUFMAN v WAYNE KOZAK
[2013] ACTCA 30 (18 October 2013)

APPEAL AND NEW TRIAL – PERSONAL INJURY – injury to lower back in MVA –whether trial judge in error in rejecting evidence of appellant’s experts – whether trial judge in error in making adverse findings on appellant’s credibility – whether trial judge’s findings supported by the evidence – where existing injury to lower back – where existing injury was to different part of lower back to injury the subject of the claim

Australian Capital Territory v Crowley [2012] ACTCA 52
Briginshaw v Briginshaw (1938) 60 CLR 336

Fox v Percy (2003) 214 CLR 118
Fedorow v Fedorow [2011] ACTCA 10

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 23 - 2012
No. SC 512 of 2008

Judges: Penfold, Burns and Cowdroy JJ
Court of Appeal of the Australian Capital Territory
Date: 18 October 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 23 - 2012
  )          No. SC 512 of 2008
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:KYLIE TRICIA KAUFMAN
Appellant

AND: WAYNE KOZAK
Respondent

ORDER

Judges:  Penfold, Burns and Cowdroy JJ
Date:  18 October 2013
Place:  Canberra

THE COURT ORDERS THAT:

The order of the trial judge entering judgment for the appellant in the sum of $40,600.00 is set aside.

The matter is remitted to the Master for assessment of damages in accordance with these reasons.

The respondent is to pay the appellant’s costs of the appeal.

IN THE SUPREME COURT OF THE     )          No. ACTCA 23 - 2012
  )          No. SC 512 of 2008
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:KYLIE TRICIA KAUFMAN
Appellant

AND: WAYNE KOZAK
Respondent

Judges:  Penfold, Burns and Cowdroy JJ
Date:  18 October 2013
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

On 5 June 2007, the appellant was injured when a Triton utility driven by the respondent collided with the rear of her Subaru station wagon at the intersection of Coulter Drive and Belconnen Way in the Australian Capital Territory. She commenced proceedings in the ACT Supreme Court claiming damages for those injuries. The respondent ultimately admitted that he had breached his duty of care to the appellant. On 29 May 2012, the trial judge entered judgment for the appellant in the sum of $40,600.00. She also ordered that the respondent pay the appellant’s costs of the proceedings, however that order was suspended for 14 days to allow either party to list the matter for further argument on the question of costs. There is no indication that the matter was further listed.

The appellant now appeals from these orders, except from the order for costs. The grounds of the appeal are:

(a)Her Honour erred in rejecting the evidence of Dr Brook, a doctor who had examined the appellant prior to the subject accident and noted and reported on her symptoms and who again examined her post accident and concluded that the accident had resulted in injury to a different area of the lower back as claimed by the appellant.
(b)Her Honour was in error in rejecting the opinion of Dr Lethlean, a specialist providing a medico-legal report on behalf of the Respondent, who concluded that there was a new injury to the L5-S1 disc sustained in the accident, on the basis that there was no evidence of pre-existing symptoms in the Appellant’s lumbosacral L5-S1 area which was contrary to the medical records.
(c)Her Honour was in error in rejecting the opinion of Dr Le Leu that the Appellant’s ongoing significant and partially disabling symptoms were the result of the accident, on the basis that Dr Le Leu was misinformed that low back pain commenced after the accident.
(d)Her Honour was in error in rejecting the opinion of Dr Mobbs, the operating surgeon who performed a lower back fusion on the Appellant, that the Appellant’s need for the fusion operation was caused by the subject motor vehicle accident.
(e)Her Honour was in error in concluding that the Appellant’s claim “bore the hallmarks of deceit and exaggeration” because she pursued her claim that the back pain in her lower back area was the result of the accident, in circumstances where the overwhelming majority of medical specialists supported the Appellant’s claim.
(f)Her Honour was in error in concluding that the Appellant’s claim “bore the hallmarks of deceit and exaggeration” on the basis that her treatment would normally be expected to resolve or ameliorate her complaints of pain and that their failure to do so somehow made the Appellant guilty of deceit and exaggeration.
(g)Her Honour was in error in failing to refer to the evidence of the Appellant’s supervisor, Ms Galvin and her husband, two witnesses who corroborated her claim but whose evidence was neither accepted, rejected or dealt with by Her Honour.
(h)Her Honour was in error in concluding that the force of the impact at the time of collision “must necessarily have been relatively minor”, despite the damage shown to the Appellant’s vehicle in the post accident photographs of it, and further, in concluding that evidence of an expert in ergonomics was usually provided in relation to an accident of this description (rear ended stationary vehicle) and that the Appellant’s injury was “atypical”.
(i)Her Honour was in error in rejecting the opinion of psychologist, Dr Mahoney, that the accident substantially contributed to the appellant’s depression and that other contributing factors appeared to be minor.
(j)Her Honour erred in rejecting the evidence of treating psychologist, Dr Clarke, who agreed with the diagnosis of Dr Mahoney of Major Depression resulting from the accident.
(k)Her Honour was in error in preferring the opinion of Dr Glaser, a psychiatrist who performed a medical examination of the Appellant on one occasion only in April 2009, over the opinions of the treating psychologists.
(l)Her Honour was in error in failing to be satisfied that the Appellant’s weight gain was a consequence of the accident.
(m)Her Honour’s assessment of damages was in error because of the false premises on which that assessment was based.

The appellant seeks orders that:

a)The judgment be set aside and that judgment be entered for the Appellant against the Respondent for damages as assessed by the Court of Appeal; or
b)Alternatively, the judgment be set aside and the matter be remitted for rehearing before the Master or another Judge of the Court.

PRINCIPLES OF APPELLATE REVIEW

The parties are in general agreement as to the principles governing this appeal, although they differ somewhat as to how those principles should be applied to the circumstances of this case. The general principles were expressed by this Court in Australian Capital Territory v Crowley [2012] ACTCA 52 at [5]:

The right to appeal is conferred by Part 2A of the Supreme Court Act1933 (ACT) (“Supreme Court Act”). It is an appeal in the nature of a rehearing (Huen v Hyland [2004] ACTCA 5 at [54]), albeit that error must still be shown: Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd (2001) 117 FCR 424 at [21]–[30]. On such an appeal the Court is obliged to conduct “a real review of the trial” and the judge’s reasons and give “the judgment which in its opinion ought to have been given in the first instance”: Dearman v Dearman (1908) 7 CLR 549 at 561 quoted with approval in Fox v Percy (2003) 214 CLR 118 at 125 [23].

In Fox v Percy (2003) 214 CLR 118, in the majority judgment (Gleeson CJ, Gummow and Kirby JJ) said in relation to appeals conducted by way of rehearing at [22]–[23]:

The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (Citations omitted)

In his written submissions in support of this appeal, senior counsel for the appellant, Mr Stretton SC, made it clear that only the factual findings made by the trial judge, and her conclusions based on these findings, are in issue on this appeal, and there is no allegation that her Honour “misstated or misapplied any legal rule”.

In Fedorow v Fedorow [2011] ACTCA 10, this Court (Gray P, Penfold J and Nield AJ) considered the proper approach to such an appeal at [7]–[9]:

As mentioned, the grounds of appeal and cross-appeal put in issue the factual findings and conclusions drawn by the Master. In such a circumstance the proper approach of an appeal court, on an appeal by way of rehearing such as in this matter, is governed by the principles considered by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 (Fox v Percy) at [27]:
[There is] the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not.

That principle of appellate respect for advantages of trial judges does not derogate from the obligation of a court of appeal in accordance with the applicable legislation to perform its appellate function. In Fox v Percy at [27] it was said:
Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

Further, in Fox v Percy (at [87]), the High Court approved what was said to be the rule stated by Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes (1979) 142 CLR 531 at 551, as follows:
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 that 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. These principles, we venture to think, are not only sound in law, but beneficial in their operation.

THE PROCEEDINGS BEFORE THE TRIAL JUDGE

The appellant’s case consisted of oral testimony from the appellant, her husband Dean Kaufman and a former work supervisor Maureen Galvin. In addition, medical reports were tendered from:

(a) Dr Darryl McGill, Cardiologist;

(b) Dr Andrew Brook, Rheumatologist;

(c) Dr Meng Chung, Canberra Imaging Group;

(d) Dr Jenny Bramley, Canberra Imaging Group;

(e) Dr Roger Tuck, Neurologist;

(f) Dr Kenneth Nam, Anaesthetic Registrar, Canberra Hospital Pain Management Unit;

(g) Dr Chan-Feng Lin, General Practitioner;

(h) Dr Justin Pik, Neurosurgeon;

(i) Dr Iain Duncan, Canberra Imaging Group;

(j) Dr Chris Roberts, Orthopaedic Surgeon;

(k) Dr A Keith Lethlean, Neurologist;

(l) Dr Ralph Mobbs, Neurosurgeon;

(m) Dr Garth Eaton, Occupational Physician;

(n) Dr Rowena Lawson, Senior Anaesthetic Registrar, Canberra Hospital Pain Management Unit;

(o) Dr Mark Pierce, Canberra Imaging Group;

(p) Dr Niranjan Ganeshan, Canberra Imaging Group;

(q) Dr Leon Le Leu, Occupational Physician;

(r) Dr David Morewood, Canberra Imaging Group;

(s) Dr Allison Clarke, Psychologist;

(t) Dr Brian Noll, Orthopaedic Surgeon;

(u) Dr Michael Lim, Occupational Physician;

(v) Dr William Glaser, Psychiatrist; and

(w) Dr Helen Dauncey, Pharmacologist.

In addition clinical notes were tendered from:

(a) Calvary Hospital;

(b) Hawker Medical Practice;

(c) Canberra Injury Management Centre; and

(d) The Canberra Hospital.

It was a curious feature of the proceedings before the trial judge that none of the medical professionals were required for cross-examination, thus depriving her Honour of a valuable tool in the process of determining the weight to be given to the various opinions expressed by the medical witnesses regarding the nature and provenance of the appellant’s complaints.

The appellant’s case was that in the motor vehicle accident on 5 June 2007 she sustained an injury to her lumbosacral spine, resulting in significant ongoing pain. She also claimed that she suffered aggravations to pre-existing conditions in the accident, most notably a pre-existing injury to her sacroiliac joint. She claimed that as a result of the accident she became incapacitated for employment. At the time of the accident, the appellant was employed as a Level 2 Claims Manager by NRMA. Clearly, if the appellant’s case had been accepted by her Honour, a judgment well in excess of $40,600 would be expected.

The trial judge did not accept that the appellant suffered any ongoing symptoms in her lumbosacral spine as a consequence of the accident. Her Honour found that the appellant had a pre-existing condition in her “low back” prior to the accident, and that she suffered a “short-term exacerbation” of that condition in the accident.

At trial the respondent maintained a claim for contributory negligence on the basis, as we understand it, that the appellant had stopped unnecessarily at the intersection where the accident occurred. Quite rightly, her Honour rejected that proposition. This was a simple rear-end collision caused, as her Honour found, by the respondent’s failure to observe that the appellant had stopped at the intersection, and to control his vehicle accordingly.

The respondent also maintained that the appellant’s problems with her lumbosacral spine were not caused by the accident, and that her claim was generally exaggerated.

The appellant gave evidence before the trial judge. She testified that prior to the accident she had a number of health issues. She had pre-existing neck pain of an intermittent nature dating from her 20s. She said her neck was aggravated by the accident, but that aggravation settled shortly after. She also suffered from longstanding pain in her left shoulder, migraines and knee pain. She had a congenital heart defect that was diagnosed in her adolescence, which precluded her from undertaking strenuous exercise. As a consequence, she has always struggled with her weight. In January 2007, she started to experience an array of symptoms, which for convenience we will refer to as her neurological symptoms, including shooting pains, numbness affecting large areas of her body, blurring of vision, shaking in the legs, tremors in the hands, muscular twitches, weakness in the right leg, nerve pains, difficulty swallowing, and balance difficulties. In December 2006, before the onset of the neurological symptoms, the appellant experienced pain in the area of her right sacroiliac joint, which continued after the onset of her neurological symptoms. Finally, the appellant had a history of psychological disorder in her adolescence and early 20s, diagnosed as depression. She also suffered from post-natal depression after the birth of one of her children.

The appellant testified that at the time of the collision, she was twisted to the right looking for oncoming cars. The collision “sounded like a bomb went off, just a big explosion of glass”. She was “thrown around” inside her car, but could not say exactly how. Her car sustained extensive damage.

After the accident the appellant felt immediate pain in her neck and lower back. As the day progressed her neck got worse and her back continued to be sore. She attempted to go to work, but was sent to hospital in a taxi by her supervisor. At hospital she was prescribed pain relief medication and was given a medical certificate to be off work.

Later that day, she attended at the Hawker Medical Practice and saw the general practitioner with whom she already had an appointment for an unrelated medical problem, Dr Lin. He suggested the appellant use a heat pack, and referred her for physiotherapy. On 7 June 2007, the appellant returned to the Hawker Medical Practice seeking clearance to return to work. She told the general practitioner available, Dr Loong, that her pain had improved, however, in her evidence, she said it had not really improved, but she told Dr Loong it had as she wanted to go back to work. By 12 June 2007, just 5 days later (including a weekend) she returned to Hawker Medical Practice and saw her usual general practitioner, Dr Foo, complaining of continuing pain and other symptoms. He referred her for an MRI and gave her a further work certificate. An MRI scan of her lumbar spine on 26 June 2007 revealed a “central and right sided disc bulge at L5/S1 without neural compromise”.

The appellant testified that she enjoyed her employment with the NRMA, and had intended to continue in it at the time of the accident. She commenced work with the NRMA in 2001 as a lodgement officer, and was promoted to claims officer before being further promoted to a Level 2 claims officer position in August 2002. She testified that before the accident she aspired to being a claims supervisor. After the accident she had varying periods of time off work until she finally ceased work on 6 May 2008. She subsequently resigned from her employment with NRMA as part of a worker’s compensation redemption. She has not returned to paid employment, but testified of her wish to do so, perhaps by way of commencing a cake-decorating business.

It was the appellant’s evidence that the pain in her lower back that she experienced after the accident was in a different location to the pain she had experienced prior to it, which she described as being located in the right sacroiliac region. After the accident she commenced experiencing pain in the midline, over the lumbar spine itself.

We have read the transcript and it is not apparent that the appellant’s credibility was affected by cross-examination. No inconsistencies were revealed, nor did she resile from her evidence in chief.

The appellant’s husband, Dean Kaufman, also gave evidence. He said that before the accident the appellant had been very enthusiastic about her employment with NRMA. Before the accident he did all the outside work, and he and the appellant shared the housework duties. Immediately following the accident he noticed that the appellant was struggling with her employment, and he took over a larger share of the housework. He testified that the appellant’s condition gradually worsened, such that he took on an even greater share of the domestic duties, and they engaged a cleaner.

Mr Kaufman testified that the appellant’s deteriorating health had a severe impact on him:

My situation was I would work all day, I would come home, I would have a fairly unresponsive, depressed partner in the house and a couple of children that needed attention. I was very concerned about the amount of attention my children were actually getting during the day when my wife was unwell and fairly unresponsive. So I wasn’t getting the usual feedback that you’d expect from having a spouse at home; matter of fact, I was just getting another dependent. So it was just very draining basically. There was no upside of coming home.

Mr Kaufman was asked about his knowledge of the appellant’s prior history of depression:

And you’re aware I think that your wife had suffered some post-natal depression?---Yes. Yes, she had.
After that post natal depression and up until the time of the motor vehicle accident, did you observe any signs of depression?---It was quite the opposite actually. She’d left her former career as a nurse and moved into a career that she enjoyed, she had good prospects in. She was enjoying being a mother, and things were actually looking very positive for us.
Yes. At some stage did you following the accident, notice a decline in that situation?---Yes, with the constant pain, she lost her interest.
Was it gradual or was it something that sort of happened in a day or two or was it---?--- No it was quite gradual.
Yes. And when you refer to coming home to a depressed wife, what were the symptoms that led you to the conclusion that she was depressed, that you observed?---Lack of motivation, she quite often would express her frustration with not being able to deal with the pain. She had a certain lack of interest in getting out and seeing any of our friends. Basically those were some of the main indicators but it was generally just a – the pain was fairly all absorbing.

In cross-examination Mr Kaufman stated that he was very aware that the appellant had suffered pain between January and May 2007. He said “it was more the muscular twitching that she complained about largely. She did complain of some sciatic pain”. He said she did not complain “so much” about pain in her lower back at that time. He believed that between January and June 2007 the appellant’s condition was improving.

Maureen Galvin also gave evidence at the trial. At the date of trial she was no longer employed by NRMA, but she had been employed by it from 1994 to 2008. She had been the appellant’s supervisor. She testified that prior to the accident the appellant displayed no problems coping with her workload or meeting her work commitments. She recalled that the appellant was hospitalised for a week in January 2007, and that she was away from work for approximately a week in May that year. Significantly, she recalled the appellant at that time telling her the problem was sacroiliac pain. It was not suggested to her in cross-examination that her recollection of these events was faulty.

Ms Galvin testified that on the morning of the accident she could tell the appellant was in pain, and she appeared quite shaken. She suggested that the appellant see her doctor. She recollected that the appellant took two or three days off work, but that on her return to work she struggled with her workload, which had not increased since before the accident. She had not exhibited this problem before the accident, with Ms Galvin describing her as a very good, and very thorough, employee before the accident.

MEDICAL RECORDS PRIOR TO THE ACCIDENT

Hospital notes from Calvary and Canberra Hospitals regarding the appellant’s hospitalisation were before the trial judge. Those notes revealed she attended the Canberra Hospital on 18 January 2007 on transfer from Calvary Hospital by ambulance. The Emergency Department records from Calvary Hospital show that the appellant attended Calvary on 18 January 2007 complaining of muscle twitching in her upper extremities. The complaint is recorded as having:

MUSCLE TWITCHING UPPER EXTREMETIES H X BACK PAIN.

The Emergency Department notes from Canberra Hospital describe the circumstances of her attendance as “transferred from Calvary Hospital with back pain, ascending numbness and (R) shoulder jerks”. The appellant reported a history of four days of “lower back pain”. The notes record “sacral bony tenderness on midline, no spasm evident”. A Radiology Summary Report, apparently dated 22 January 2007, reporting on a whole body bone scan conducted on the appellant states that a sacral spine lesion “demonstrated on MR examination” was unable to be demonstrated on the scan, perhaps because the lesion is “below the scintigraphic resolution”. A letter from Dr Anthony Hancock, Resident Medical Officer Neurology, undated but apparently sent after the appellant’s admission to Canberra Hospital in January 2007, to the Chronic Pain Team at the hospital stated:

She also presented with back and shoulder pain, and has apparently had a diagnosis of osteoarthritis by Dr Kan. The bone scan did reveal some mild arthritic changes in her left knee and both shoulders. Her MRI revealed some desiccation to the T8/T9 and L5/S1intervertabral discs and a high signal area in her sacral area thought to be a fat containing haemangioma. The MRI did not suggest any thecal or nerve root compression at the T8/T9 or L5/S1 levels.

A discharge summary from the Canberra Hospital to the appellant’s general practitioner referred to the MRI findings.

It appears from this material:

a) that the appellant complained of low back pain for four days before her admission to hospital in January 2007;

b) that there was sacral bony tenderness on the midline; and

c) that an MRI scan revealed some desiccation to the disc at the L5/S1 level.

The appellant was discharged from hospital on 24 January 2007; she returned to her general practitioner that day and saw Dr Foo. His notes of that consultation state:

- admitted to TCH for a week for low back pain and numbness all over body esp on right leg and face...still in pain today...Reason for contact: low back pain.

Dr Foo next saw the appellant on 29 January 2007 when she reported that Endep had helped her back pain, with her back still reported as sore, but more tolerable.

On 5 March 2007, she saw Dr Rachel Loong at the Hawker Medical Practice. She complained of a flare-up of low back pain the previous day while bending down to pick up groceries. The notes record: “Pain in lower lumbar right side. No increase in LL symptoms”. The reason for contact is described as “back pain”. Her examination notes show that the appellant was tender at the L5 level “on spine and more on right paravertabral muscles”.

She returned and saw Dr Foo the next day, who recorded:

- backs gone – bent over to pick up something, pain radiating down both legs esp on right side, in severe pain at present, movements difficult, rom reduced in all directions by pain, tender +++ mainly over right SIJ and buttock muscles...Reason for contact: low back pain.

On 7 March 2007, the appellant telephoned Dr Foo and told him that her prescribed medication (Oxycontin) had not relieved her pain sufficiently to allow her to sleep the previous night. He advised her to increase her nocturnal dose.

On 8 March 2007, the appellant consulted Dr Brook, a rheumatologist, who noted the appellant’s complex medical background, before stating that her current problem “is pain high on the right sacroiliac region”. The pain was relatively localised and made worse by weight bearing. The appellant reported that the pain started “in January”, presumably a reference to January 2007. Dr Brook stated that the appellant had a history of depression, including postnatal depression, but she was not currently depressed. He also reported that the appellant was “tender over L5/S1 but particularly tender over the upper part of the sacroiliac joint and sacral cubicle”. Dr Brook thought that the appellant’s pain in the right sacroiliac region was “from local ligamentous structures”, but noted that facet joint pain may produce a similar picture.

On the same day, she also consulted Dr Foo, complaining that her back had become much worse since Dr Brook administered the steroid injection. Dr Foo increased her pain medication.

On 26 April 2007, the appellant consulted Dr Chan-Feng Lin at the Hawker Medical Practice, complaining of “chronic pain”. He ordered pathology, noting low back and neck pain. His notes indicate he did not examine the appellant.

The appellant then saw Dr Foo on 7 May 2007 complaining of “depressed moods, sleep disturbance because of pain”. Dr Foo recommended counselling and prescribed Norspan patches for pain relief.

On 26 May 2007, she saw Dr Lin complaining of (amongst other things) continuing back pain unrelieved by medication. She was observed to be very teary and “depressed”. His notes suggest he did not examine the appellant’s back.

MEDICAL RECORDS POST ACCIDENT

The appellant’s next GP consultation was on 5 June 2007, the day of the motor vehicle accident. As we understand it, she was scheduled to see Dr Lin that day with respect to other matters, one of which was her lack of pain relief with the Norspan patches. Dr Lin recorded the appellant “now complaining of neck and right neck and trapezius pain, worsening left shoulder pain, lower back pain slightly worse”.

On 7 June 2007, she saw Dr Rachel Loong, seeking a clearance to return to work. She told Dr Loong that she had not yet commenced physiotherapy, but the pain had settled enough for her to return to work.

On 12 June 2007, she consulted Dr Foo, giving a history of being involved in a motor vehicle accident, with pain developing “straight away” after the accident in her neck and lower back. She complained of her legs giving way since the previous Saturday (4 days before), and that her neck and back pain were getting worse. Dr Foo recorded that she was tender at L4 and L5 spinal vertebrae.

The appellant again consulted Dr Foo on 18 June 2007, stating “pain mainly now in lower back, neck stiff but better”. She next saw Dr Foo on 25 June 2007 when she was still having trouble with her lower back.

On 19 June 2007, she commenced a graduated return to work, gradually increasing her hours until she resumed normal work hours on 31 July 2007. From 8 August 2007 to 2 September 2007, she worked normal hours.

On 26 June 2007, she underwent an MRI which revealed a central and right sided disc bulge at L5/S1 without neural compromise.

On 29 August 2007, she consulted Dr Kenneth Nam at the Pain Management Unit, Canberra Hospital. He recorded her history of pain as beginning “in January 2007 when she had a sudden onset of pain in her right sacroiliac joint”. He noted that she was then involved in a motor vehicle accident in “July [sic] 2007” which caused her to have lower back pain. Her main concern at the time he saw her was her lower back pain. This was reported as a constant pain with radiation down her right leg. She reported that her sacroiliac pain had improved since the accident and was controlled by medication. He noted that a CT (semble, MRI) of her spine conducted in January 2007 revealed desiccation of the L5/S1 disc, and that an MRI of her lumbar spine in June 2007 showed a L5/S1 central and right sided disc bulge, accompanied by flattening of the theca without definite nerve root compression.

From 3 September 2007 to 11 October 2007, she worked six-hour days, four days a week. On 9 October 2007, she was reviewed by Dr Nam who noted that her back pain had improved with the use of Oxycontin. From 12 October 2007 to 3 February 2008, she worked normal hours.

On 14 November 2007, the appellant consulted Dr Justin Pik, a neurosurgeon. He noted she reported a history of low back pain since January 2007, with the pain initially starting over the right side of the lower lumbar area. Approximately 5 months later, she reported also developing central low back pain. She reported pain radiating into the right buttock, posterior thigh and posterior knee. There was also radiation of pain into the perianal area and into the coccyx. Dr Pik reviewed her MRI scan from June 2007, which showed evidence of desiccation and decreased disc height at L5/S1. This was associated with a central posterior disc bulge without any significant nerve root compromise. Dr Pik’s impression was that the appellant had clinical features suggestive of discogenic low back pain, but noted that this could only be confirmed if a provocative lumbar discogram showed a concordant pain response on injection of the L5/S1 disc.

On 12 February 2008, the appellant saw Dr Lethlean, a neurologist, on behalf of the respondent. Dr Lethlean, who prepared a report dated 22 February 2008, was apparently provided with previous medical records, however he does not set out in his report a list of those records. He noted the history of a motor vehicle accident on 5 June 2008 [sic]. He noted that she complained of a pre-existing sacroiliac pain, which he saw as separate from the low back pain. She stated that the sacroiliac pain was improving until the accident. The appellant reported her general health as good, but she had gained 11 kg since the accident. Dr Lethlean took a history of pain developing in the sacroiliac joint in January 2007, after which she was admitted to hospital for a week. She reported that around April 2007 she received two injections into the sacroiliac joint given by Dr Brook, with relief for around four weeks. Dr Lethlean noted the results of the MRI scan of her lumbar spine in June 2007. He was also provided with the lumbar discogram and CT from 4 February 2008. It does not appear that the respondent provided Dr Lethlean with a copy of the MRI scan from January 2007.

Dr Lethlean was of the opinion that the appellant had sustained a disc injury at the L5/S1 level, which appeared to be a new injury, sustained for the greater part on

5 June 2007. He stated that there was “no evidence of functional overlay, unconscious or conscious exaggeration or feigned symptoms.” He believed the appellant gave her history in a straightforward manner and was consistent and cooperative in examination. Her preceding, complex medical and surgical history did not appear to be directly relevant to Dr Lethlean’s assessment, nor to prejudice it. Dr Lethlean expressed the opinion that pre-existing symptoms and impairment and disabilities were not evident in the lumbosacral L5/S1 disc area.

On 18 March 2008, the appellant saw another neurosurgeon, Dr Ralph Mobbs. Dr Mobbs noted that she developed low back pain following a motor vehicle accident in June 2007. He noted a previous history of depression, and that she was currently on a number of medications including pain relief medicine, anti-inflammatories and antidepressants. He noted that an MRI scan had demonstrated a degenerative L5/S1 disc. Dr Mobbs concluded that the appellant had back pain that was most likely related to degenerative disc disease at L5/S1. He discussed the possibility of surgery with her, and advised her that outcomes could be improved with a progressive physical therapy program prior to surgery, including significant weight loss.

On 4 April 2008, the appellant had an injection into the left shoulder under ultrasound guidance. Between 7 April 2008 and 11 April 2008 she worked four hours a day, four days a week. Between 14 April 2008 and 5 May 2008 she worked six hours a day, four days a week.

On 24 April 2008, the appellant was assessed by an occupational physician, Dr Garth Eaton, at the Canberra Injury Management Centre. She described to Dr Eaton immediate muscular type pain in her neck and low back following the motor vehicle accident in June 2007. Dr Eaton does not appear to have taken a history of prior lower back problems. Dr Eaton arrived at a provisional diagnosis of chronic neurogenic pain condition. A pain management program was recommended.

On 6 May 2008, the appellant ceased work, and has not returned to work since.

On 7 July 2008, the appellant saw Dr Rowena Lawson at the Pain Management Unit at the Canberra Hospital. She noted that the appellant had been seen in the Unit the previous October for her lower back pain after a motor vehicle accident. The pain was described as localised, constant, sharp and very severe. It radiated occasionally into her right buttock. Dr Lawson noted that she had a lumbar discogram performed in February 2008 which concluded that she had discogenic pain at L5/S1 which correlated in location and character to her usual back pain. She had a degenerative disc at that level with a diffuse anulus tear. She discussed appropriate pain relief with the appellant.

On 11 August 2008, the appellant was seen by Dr Janine Mahoney, a clinical psychologist. She had been referred to Dr Mahoney by her general practitioner for pain management treatment. She told Dr Mahoney that she was quite healthy prior to the motor vehicle accident. She disclosed that she had a genetic heart disorder which prevented her from engaging in sport and rigorous activity. She also stated that she had arthritic knees, and an arthritic shoulder. She stated that in January 2007 she experienced an undiagnosed neurological condition characterised by muscle jerks, speech problems, sacroiliac pain, pins and needles, numbness, difficulty swallowing as well as cold hands and feet. She told Dr Mahoney that she was “quite down” in January 2007 due to her neurological symptoms, but when she discovered that her back pain following the motor vehicle accident was permanent she became more depressed. Dr Mahoney administered a number of psychological tests and concluded that the appellant’s symptoms were consistent with major depression and also a chronic pain syndrome. She was of the view that the motor vehicle accident substantially contributed to the appellant’s depression. She noted that while the appellant had been able to maintain employment with her depression prior to the motor vehicle accident, the knowledge of the permanency of her injury following the accident was a major factor in her depression.

At the request of the respondent’s lawyers, the appellant saw Dr Bryan Noll, an orthopaedic surgeon, on 9 September 2008. He noted the history of a motor vehicle accident on 5 June 2007, followed by pain in her neck and lower back. At the time that she saw Dr Noll she reported having persistent lower back pain in the lumbosacral region in the midline. He took a history of the appellant developing pain in the right sacroiliac region in late 2006. He noted that a report from Dr Andrew Brook dated 8 March 2007 indicated that a bone scan failed to reveal evidence of sacroiliitis, and that she was given two cortisone injections which provided short-term pain relief. There was no medical evidence available to indicate that any specific diagnosis was made by Dr Brook. The appellant acknowledged to Dr Noll that at the time of the subject accident she still had pain localised to the left sacroiliac region, but she felt that it was improving. Dr Noll concluded that the appellant probably sustained a soft tissue strain type injury of her back at the time of the accident. He thought it likely that the injury was superimposed on a degenerative disorder of the lumbosacral spine. The cause of the pain which she complained of prior to the accident, in the right sacroiliac region, was unknown. He considered that there was no evidence to indicate that this pre-existing disorder related to her current low back symptoms. He concluded that the low back injuries were causally related to the accident.

On 9 September 2008, the appellant saw an occupational physician, Dr Michael Lim, on behalf of the respondent. Dr Lim noted the history of a motor vehicle accident on 5 June 2007. He noted that the appellant admitted she had a significant history of musculoskeletal ailments prior to the accident, including her neck, left shoulder, right knee and lower back. He also noted she was hospitalised for a week with lower back pain and neurological symptoms in mid-January 2007. The appellant told him that she had right-sided lower back pain prior to the accident. She said that after the accident the pain in her lower back was both central (midline) and right-sided.

Dr Lim took a medical history from her. She told him that she had an episode of lower back pain in 1989, when undergoing training to become an enrolled nurse. She was unable to remember how long it took for the pain to settle. She also said that she injured her back in a motor vehicle accident in the late 1990s, requiring a couple of days off work. To the best of her recollection, the earlier episodes of back pain were mostly central (midline lower back pain). The back pain in late 2006 was predominantly right sided, as was the episode of pain in January 2007. Her back pain improved after she was hospitalised in January 2007. Dr Lim noted that she had consulted Dr Brook, rheumatologist, about her ongoing back pain in April 2007 and had two injections to the right sacroiliac joint.

Dr Lim also reviewed the records from the Hawker Medical Practice, referred to above. Regarding those records he said:

In summary, the claimant had a significant history of lower back pain prior to the subject accident. Although the back pain in the months prior to the accident was predominantly right-sided, earlier episodes of lower back pain appeared central. Her back pain in the period just prior to the accident was significant, requiring the use of potent narcotic analgesia and was associated with depression.

Dr Lim also considered the appellant’s history of psychiatric disorders. She told him that she had been assessed by a psychiatrist at hospital in January 2007, and was told that she did not have a psychiatric problem. He noted, however, that Dr Foo prescribed Endep, an antidepressant, at that time. Dr Lim did concede that Endep was also used in chronic pain disorders. Referring to the Hawker Medical Practice records, Dr Lim noted a history of depression in the appellant’s teenage years as well as postnatal depression and insomnia. She had been prescribed Lexapro and Stilnox. He noted that on 27 February 2007 the appellant reported to Dr Foo that she stopped using Endep because her back pain had resolved. However, she had ongoing insomnia and Dr Foo advised her to resume the use of Endep. He also noted that on 7 May 2007 she reported to Dr Foo symptoms of depression, with Dr Foo recommending counselling. The records showed that on 26 May 2007 Dr CF Lin had noted that the appellant was teary and depressed on attendance at Hawker Medical Practice. Dr Lim concluded that the appellant had a significant history of psychiatric disorders prior to the accident, being a history of recurrent depression as well as the possibility of a Somatisation Disorder or a Conversion Disorder.

Dr Lim questioned the appellant about her current symptoms. She stated she had constant lower back pain, with the pain in the right side tending to be cyclical, that is, worse during her menstrual periods. The central lower back pain did not fluctuate in a cyclical manner. Both types of back pain were aggravated through use. The appellant told Dr Lim that she had been almost pain free for a period of five days in September 2007 whilst travelling in Cambodia. She attributed her pain-free state to the tropical heat.

After considering the appellant’s medical records Dr Lim said:

In summary, a review of the medical records confirm the impression I obtained from an analysis of the claimant’s work performance after the accident that factors apart from the accident contributed to her work incapacity. The initial symptoms following the accident settled within a couple of days, without specific treatment, to the extent the claimant could resume her pre accident work capacity. However, subsequently she had multiple falls due to unexplained buckling of her right knee, recurrence of extensive neurological symptoms and worsening of pain in her neck, back, left shoulder and knees. The pain in her neck, back, left shoulder and knees miraculously disappeared during her five-day stint in Cambodia. In my opinion the worsening of the pain in her neck and back had more to do with the alleged falls and inexplicable neurological symptoms than physical injury.

Dr Lim conducted a physical examination of the appellant. He found the active movements of her lumbar spine to be within the expected range, and clinically she did not display muscle guarding of her lumbar spine. She did not have radicular symptoms in her legs.

Dr Lim considered that the appellant’s “current complaints and disabilities are not reasonable in relation to the subject accident i.e. the complaints and disabilities were not consistent with the physical effects of the accident”. He formed this conclusion based upon his belief that the physical effects of the accident were quite minor, and on general practitioner Dr CF Lin’s initial diagnosis that the accident had caused superficial soft tissue injuries. Dr Lim concluded that the accident aggravated, to a mild or moderate degree, pre-existing painful ailments of the appellant’s left shoulder and lower back. In concluding that her current complaints and disabilities were not reasonable, Dr Lim also took into account the fact that the injuries initially diagnosed at Calvary Hospital were minor in nature, and therefore expected to have a good prognosis. He noted that the medical records of Dr Loong confirmed the appellant recovered well enough from the effects of the accident without specific treatment within a couple of days to resume her pre-accident duties. He also noted that she had significant health problems in the period immediately prior to the accident, and his examination of the appellant indicated that her ongoing symptoms and disabilities were not causally related to the accident.

Dr Lim was asked by the respondent’s lawyers to express an opinion on the relationship between the appellant’s complaints and the accident. Dr Lim considered that the appellant sustained a temporary aggravation of discogenic back pain in the accident. With respect to her continuing complaints he said:

A psychiatric disorder is likely under the circumstances. The differential diagnoses would be a Somatisation Disorder, Conversion Disorder and Hypochondriasis. Her neurological symptoms are not related to the accident but cause ongoing disability, e.g. involuntary movements, weakness, dizziness and inability to swallow. Such symptoms, even if physiological in origin, contribute to her reported disabilities.

On 12 March 2009, the appellant had gastric banding surgery performed under general anaesthetic at Prince of Wales Hospital in Sydney.

At the request of the respondent’s lawyers, the appellant saw a psychiatrist, Dr William Glaser, on 26 March 2009. He noted that she continued to experience low back pain, as well as pain over her right sacroiliac joint. The appellant considered her low back pain to be worse than the pain in her sacroiliac joint. Dr Glaser considered that she had an extensive history of psychiatric problems. He believed that the available medical records showed that she had started to develop symptoms of depression in May 2007, about one month before the accident. He thought that the opinions expressed by the psychologist, Dr Mahoney, should be given reduced weight as Dr Mahoney was apparently not provided with much detail with respect to the appellant’s physical or mental state just prior to the accident. He believed that the accident may have temporarily aggravated the appellant’s pre-existing depression, but only to a very minor degree.

On 15 May 2009, staff from the Canberra Injury Management Centre provided a report to the appellant’s lawyers setting out her complaints at the time she initially saw Dr Eaton, and the treatment she had been provided. When she was last seen at the Centre on 18 December 2008 she had been using a walking stick and was distressed by her continuing pain.

On 17 August 2009, the appellant had an L5/S1 interbody fusion performed by Dr Mobbs. On 30 September 2009 Dr Mobbs reviewed her. She reported that her low back pain had improved significantly, however she had developed some new onset symptoms such as a deep ache in her right hip radiating into the buttocks. Dr Mobbs reviewed the x-ray of her lumbar spine, and noted that the position of the interbody graft at L5/S1 looked excellent. Dr Mobbs was somewhat baffled by her new onset right-sided hip pain, but considered the possibility she had developed some sacroiliitis on the right side, or a muscular/ligamentous problem of the right hip.

In a subsequent report to the appellant’s lawyers on 7 October 2009 Dr Mobbs stated that, on the history, he was of the opinion that the accident was a substantial cause of the appellant’s current low back symptoms. He noted that the degenerative process of wear and tear of the lumbar spine is a lifelong process, and a particular injury or accident can exacerbate those changes, with a patient subsequently becoming symptomatic from either disc or facet joint changes. Based on the appellant’s history, he considered that degenerative changes observed at the L5/S1 level were likely to have been asymptomatic prior to the accident.

On 9 February 2010, the appellant was reviewed by Dr Noll on behalf of the respondent. He noted that she reported developing pain in the right sacroiliac region late in 2006. This pain became particularly severe in January 2007. He noted that she was given two cortisone injections which provided short-term pain relief. The appellant acknowledged that at the time of the motor vehicle accident she still had pain localised to the right sacroiliac region, but felt that it was improving. However, review of her general practitioner’s clinical records indicated that she had a flare-up of low back pain in March 2007 and narcotic medications were prescribed. Dr Noll concluded:

Based on the available information it would appear that [the appellant] probably sustained a soft tissue strain type injury of her back at the time of the subject accident. There is a history of a pre-existing disorder of the lower back and it would appear that the injury sustained was superimposed on the previous disorder. She indicates that the previous symptoms were predominantly in the region of the right sacro-iliac joint but imaging studies including a bone scan prior to the subject accident did not reveal any evidence of an intrinsic disorder of the sacroiliac joint. The cause of the pain in the right sacroiliac region which she complained of prior to the subject accident is unknown.

On 27 January 2010, the appellant was seen by Dr Leon Le Leu, an occupational physician, at the request of her lawyers. Dr Le Leu was provided with a comprehensive range of prior medical reports and records, including Dr M Lim’s report of 12 September 2008. The appellant reported to Dr Le Leu a right sacroiliac problem which started in January 2007, which continued at a low level up to the date he saw her. The appellant stated that the pain from the accident was lower down over the sacrum. She gave a history of intermittent depression prior to the accident, which worsened after the accident due to the persistent pain. Dr Le Leu considered that the appellant’s injuries and disabilities affected her ability to work in that she could no longer perform work of a moderately to highly physical nature. He felt she could work in sedentary or semi-sedentary occupations for less than standard hours e.g. starting at four hours a day, three days a week. He felt that her secondary depression would present difficulties in retraining her. He expected her current symptoms to continue, perhaps at a slightly lower level, for the foreseeable future.

The appellant was again reviewed by Dr Michael Lim (occupational physician) on

9 February 2010. He noted the treatment that she had received since he last saw her, including anterior fusion in August 2009. Her current symptoms were intense pain in her lower back that shoots down into her right groin and right leg. She also had persistent right sacroiliac joint pain. Her neurological symptoms persisted. In his report Dr Lim noted that the appellant insisted she had right sacroiliac joint pain in early 2007, prior to the motor vehicle accident, and not lower back pain. He noted that the report of Dr Brook dated 8 March 2007 supported this claim. He also noted that the report of Dr Kenneth Nam dated 29 August 2007 also supported the appellant’s claim. Dr Lim said:

The distinction between right sacroiliac joint pain and lower back pain is important insofar as lower back pain is indicative of lumbar spine pathology whereas right sacroiliac joint pain is indicative of localised pathology in the pelvic region. However, it is well recognised that lumbar spinal pain can radiate into the buttock and therefore pain seemingly felt in the sacroiliac joint region. Furthermore acute back pain can cause muscle spasms, including the gluteal muscles, and therefore acute pain at and around the sacroiliac joint region.

Dr Lim then considered the notes from the Hawker Medical Practice:

The clinical notes of Dr Jacob Foo mentioned several consultations with the claimant from 15 January 2007 to 7 May 2007 in relation to lower back pain. The notes did not refer to right sacroiliac joint pain. The notes in relation to the consultation of 5 March 2007 stated that the claimant had a flare-up of lower back pain when she bent down to pick up groceries. The pain was noted to be in the lower lumbar region on the right side. On examination the claimant was in tears and distressed. She was tender over L5 vertebra, but more so in the right paravertebral muscles. At the next consultation on the following day, the doctor stated that the claimants back had “gone”. He noted that she bent over to pick something up and felt pain radiating down both legs, especially on the right side. On examination the doctor noted that the claimant had reduced ROM [range of movement] of the lumbar spine and was very tender in her back region, but mainly over the right sacroiliac joint and buttock muscles. Pain arising from a sacroiliac joint may occasionally radiate into the adjoining leg, but not into the contralateral leg. The clinical features described by Dr Foo were consistent with acute lumbar spinal pain with somatic referred pain in both legs and muscle spasms of the right buttock muscles.

Dr Lim concluded:

I believe the claimant’s insistence that she had right sacroiliac joint pain prior to the accident rather than lower back pain was not supported by the clinical notes of the treating GPs.

On 26 August 2010, the appellant was reviewed by Dr Brook at the request of her lawyers. He noted that they had a copy of his clinical letter dated 8 March 2007 to Dr Foo (see [37] of these reasons). He noted that on clinical examination the appellant gave him a sensible account of her problems, with a consistency between what she told him in 2007,the recent history and that recorded in the various medical reports. It is important that we set out in full what Dr Brook had to say about the appellant’s complaints before and after the accident:

In 2007 before the motor vehicle accident when I saw her, her complaint was one of pain relatively localised to the upper part of the right sacroiliac region. I described this in my report and there was localised tenderness. It responded at least temporarily to some local steroid. Investigation was not pursued apart from the fact that she had a bone scan. This was normal and another one performed after the accident on 26 November 2007 was also normal. Since then, the various imaging has not shown any lesion in the upper part of the right sacroiliac region.
My opinion in 2007 was that she had pain arising from a local structure. The upper part of the sacroiliac joint is normally fused or partly fused in mature adults. The source of pain cannot always be determined. There is a strong suspicion that it comes from local superficial structures, particularly ligaments, that is it is a form of enthesopathy. It is true that pain in this region can be referred from the back. However, when this occurs there is usually a band extending from the back and the tenderness includes the midline structures and is particularly severely felt over the upper part of the sacrum that is more medial in her [sic] pain.
I would not expect local pain in the upper sacroiliac region that is quite localised to be coming from her back. I would also not expect her to respond to local injection of anaesthetic and steroid in that region.
Currently, the findings of local tenderness in the upper right sacroiliac region are still present and have not really changed since when I saw her in 2007. She says the pain is not much changed either. That is, in my view, this pain is coming from local structures and has not clearly changed since 2007.
The low back pain which is the cause of her disability is new since I saw her. There was no hint of significant incapacity and indeed no hint of central low back pain when I saw her in 2007. From her description, it started after [the] motor vehicle accident. The findings of degenerative disc probably do predate the accident and indeed are a common finding in the community. On the other hand, she did not have symptoms before the accident and in my view the MVA of 5 June 2007 precipitated symptoms in an otherwise asymptomatic L5/S1 segment.
It is of course three years since she had the accident and I am reliant on the history, although this has been repeated to other doctors consistently. However, I am able to say that the findings that I found in March 2007 are still present and in my opinion do not relate to the problems in her lower lumbar spine.

On 30 November 2010, Dr Noll provided a further report to the respondent’s lawyers. He noted that he had seen the appellant for assessment on 9 February 2010, at which time she reported that pre-existing lower back pain had been aggravated by the subject accident. That pain persisted despite conservative treatment and she underwent an anterior L5/S1 fusion on 17 August 2009.

Dr Noll noted that in Dr Brook’s initial report of 8 March 2007, he stated that the appellant complained of pain high in the right sacroiliac region for which she took analgesic medication. Dr Brook had reported that a bone scan did not reveal evidence of sacroiliitis, which indicated that there was no evidence of inflammation or any other significant disorder of the sacroiliac joint. Dr Noll further noted that Dr Brook suspected the pain was from the local ligamentous structures, but that facet joint pain may also produce this picture. Dr Noll also referred to the appellant’s general practitioners’ notes concerning her condition prior to the accident on 5 June 2007. He noted that the clinical notes of 5 March 2007 referred to a flare-up of lower back pain when she bent down to pick up groceries. Pain was noted to be in the “lower lumbar right side”. A note on 16 March 2007 included reference to pain radiating down both legs, especially on the right side, back movements “reduced in all directions by pain” and severe tenderness “mainly over the right sacroiliac joint and buttock muscles”. Dr Noll also noted the contents of the report of Dr Brook of 26 August 2010. After referring to this material, he concluded:

The additional information provided by the reports of Dr Brooke [sic] and the contemporaneous medical information from her general practitioner are consistent with the information previously provided by [the appellant] regarding the site of the pain prior to the subject accident and the symptoms which she experienced following the subject accident.
In my opinion, although [the appellant] complained of pain which she localised to the right sacroiliac region prior to the subject accident, it is most unlikely that the source of the pain was the right sacroiliac joint itself. Of significance is the fact that although she ostensibly had chronic pain emanating from the right sacroiliac joint, there was no increased uptake noted in relation to the sacroiliac joint on a bone scan, which is a particularly sensitive and relevant indicator of any inflammatory disorder or other abnormality of the joint.

Dr Noll concluded that the additional information provided to him did not cause him to alter his opinion expressed in his report of 9 February 2010, and that there was evidence of a significant pre-existing symptomatic disorder of the appellant’s lower back.

On 13 July 2011, Dr Chan-Feng Lin wrote a report to the appellant’s lawyers. He noted the appellant’s history of being involved as the driver of a stationary motor vehicle on 5 June 2007, which was struck from behind by another vehicle travelling at 30–40 kph. He stated that she sustained a whiplash injury to her right neck and both shoulders, as well as re-exacerbating her chronic low back pain. He noted that prior to the accident she had a history of chronic low back pain commencing in January 2007 and persisting up to the date of the accident.

THE TRIAL JUDGE’S REASONS

Her Honour reviewed the medical evidence at some length so as “to highlight the extent to which the opinions that accepted a causal relationship between the [appellant’s] low back condition and the accident were influenced by the [appellant’s] assertion that she was symptom free in this area when clearly she was not”. Her Honour stated that there was no record in the Canberra Hospital notes to suggest that the appellant complained of right sacroiliac pain in January 2007. She also noted that the appellant’s general practitioner, Dr Lin, stated “in unequivocal terms” in his report that the appellant had a history of chronic low back pain. The trial judge found that Dr Pik and Dr Mobbs made no reference to the appellant’s pre-accident medical records presumably leading her Honour to infer that they were not aware of the appellant’s pre-accident medical history. She stated that Dr Lethlean’s acceptance that there was no evidence of pre-existing symptoms in the appellant’s L5/S1 area was contrary to the medical records, and that Dr Le Leu had been “misinformed” that low back pain commenced after the accident.

Her Honour found that Dr Noll was initially not “fully informed”, presumably about the appellant’s pre-accident medical history. On receipt of a full history he accepted that the appellant suffered an aggravation of a pre-existing injury in her low back in the accident. Dr Lim, her Honour stated had received a full history, and she noted his opinion that lumbar spinal pain could radiate into the buttock and therefore appear to be coming from the sacroiliac joint region, and that acute back pain could cause muscle spasms in the gluteal muscles resulting in acute pain at or around the sacroiliac joint region.

Her Honour then went on to say at [87] of her reasons:

There was no doubt that the [appellant’s] claim bore the hallmarks of deceit and exaggeration. She pursued her claim that her back pain commenced from and was the result of the accident in the face of clear medical evidence to the contrary. Treatment that might normally be expected to resolve or ameliorate her complaints of pain universally failed. The increasing doses of narcotic medication with which she was prescribed failed to relieve her pain. Her surgeon, Dr Mobbs, was unable to explain the new symptoms of which the plaintiff complained after surgery that he considered to be successful.

Having made those remarks, her Honour concluded that the appellant suffered a short-term exacerbation of pre-existing painful conditions in her neck, lower back and shoulder in the accident. She considered that by the time the appellant travelled to Cambodia in September 2007 the aggravation of the appellant’s pre-existing symptoms had resolved to their pre-accident levels. She assessed damages accordingly.

THE GROUNDS OF APPEAL

As mentioned at [2] of these reasons the appellant appealed on 13 grounds, each of which is dealt with below.

A central issue in this appeal seems to be whether “low back pain” can be accepted as a term of art that is understood by doctors as necessarily referring to central or mid-line back pain and is never either misused, or used (perhaps lazily but perhaps legitimately) as a generic description of pain and tenderness in any part of the back below about the waist (possibly including, in particular, the sacroiliac region).

If it were legitimate to assume a universally careful use of “low back pain” to describe only the specific kind of pain complained of by the appellant after the accident, then it would also be legitimate to conclude that every reference to low back pain in the appellant’s medical records from before the accident indicated that her post-accident “midline lumbar spine pain” was a recurrence of a pre-accident condition that was, at most, briefly aggravated by the motor vehicle accident.

However, for reasons set out in detail at [95] below, we do not accept that such precise use of the apparently generic term “low back pain” can be relied on.

Ground of appeal (a): Her Honour erred in rejecting the evidence of Dr Brook, a doctor who had examined the appellant prior to the subject accident and noted and reported on her symptoms and who again examined her post accident and concluded that the accident had resulted in injury to a different area of the lower back as claimed by the appellant.

The trial judge had this to say about the reports of Dr Brook at [55]–[58]:

Dr Brook, rheumatologist, reported to the plaintiff’s general practitioner on 8 March 2007 that the plaintiff complained, amongst other things, of pain high on the right sacroiliac region that was relatively localised. He said the plaintiff was quite lame due to the back pain. He noted that a bone scan undertaken at Canberra Hospital showed no sacroiliitis and he nominated local ligamentous structures as the source of her pain. He said the pain could be from facet joints or involvement of the sacroiliac joint but that in these cases it was usually more extensive. In August 2010 Dr Brook reported that the findings of local tenderness in the upper right sacroiliac region were still present and little changed since when he examined the plaintiff in 2007. His opinion remained that the pain was coming from local structures and clearly had not changed since 2007.
Dr Brook said that the low back pain which was the cause of the plaintiff’s disability was new since he examined the plaintiff in 2007. He said:
There was no hint of significant incapacity and indeed no hint of central low back pain when I saw her in 2007. From her description, it started after the motor vehicle accident.

On this basis he concluded that, although the degenerate disc probably predated the accident, the plaintiff did not have symptoms prior to the accident so that the accident of 5 June 2007 precipitated symptoms in an otherwise asymptomatic L5-S1 segment.
Dr Brook appeared to overlook the finding of tenderness over L5-S1 that he recorded in his first report and of the significant musculo-skeletal problems he described. He found tenderness at the same site on examination in October 2010. It was clear that he accepted the plaintiff’s statement that central low back pain commenced after the accident and that he was not provided with the full pre-accident medical history.
[emphasis as in original text]

As noted above, Dr Brook provided two reports relevant to the appellant’s claim. It is apparent from his first report that he was aware of the appellant’s complex medical history, and in particular, her history of pain in the sacroiliac region since January 2007. His examination of the appellant revealed tenderness over the L5/S1, but particular tenderness over the upper part of the sacroiliac joint and the sacral cubicle. Dr Brook makes no reference to the appellant complaining of pain in the area over the L5/S1. In his second report Dr Brook makes specific reference to his earlier report, and to the complaints made by the appellant when he saw her in 2007. In our opinion it was not open to her Honour to infer that Dr Brook had overlooked his earlier reference to tenderness over L5/S1 when he wrote his report in 2010. In our opinion, Dr Brook’s report, in particular his careful discrimination between the pain suffered in the right sacroiliac region and the low back pain, overwhelmingly supports the opposite inference, that he was cognisant of his earlier findings, but was of the opinion that the pain that the appellant complained of in 2010 was a result of a different condition to the one which caused her low back pain after the accident. To infer, as her Honour did, that Dr Brook had overlooked this part of the appellant’s medical history, and to then discount his opinion on the basis of the supposed oversight, was an error.

In the final sentence of the passage from the trial judge’s judgment set out above, her Honour also discounted Dr Brook’s opinions on the basis that “he was not provided with the full pre-accident medical history”. It is not entirely clear, but it appears that her Honour was there referring to the appellant’s history of “low back pain”. A factor which was clearly significant in her Honour’s decision not to accept the evidence of the appellant and her medical practitioners on the issue of the commencement of her lumbosacral spinal pain was the existence of “low back” pain prior to the accident, and the appellant’s supposed assertion that she was symptom free “in this area” prior to the accident. At [82] of her judgment, her Honour said:

There is no record in the Canberra Hospital notes to suggest that the plaintiff complained of right sacroiliac pain. The plaintiff’s general practitioner, Dr Lin, stated in unequivocal terms that the plaintiff had a prior history of chronic low back pain and that it was for this symptom as well as others that she was admitted to the Canberra Hospital in January 2007.

In our opinion, a close analysis of the evidence reveals that there is no reliable evidence that the appellant suffered midline lumbosacral pain prior to the accident. Her Honour’s finding was, in effect, that if between December 2006 and May 2007 the appellant had complained of pain in the right sacroiliac area, it was not credible that those medical practitioners who saw the appellant for back pain would have recorded the appellant as complaining of “back pain” rather than right sacroiliac pain. We consider that this finding was not open to the trial judge. There is nothing at all improbable in the proposition that someone experiencing pain in the sacroiliac joint would complain simply of low back pain. Equally, there is nothing improbable in the proposition that a medical practitioner confronted with low back pain of unknown aetiology would simply record the complaint as one of back pain. An examination of Dr Brook’s reports show that he distinguishes between pain and tenderness. It could not be concluded on the basis of Dr Brook’s first report that, before the motor vehicle accident, the appellant had a history of midline low back pain of the kind she suffered after the motor vehicle accident.

True it is that in his report of 13 July 2011 the appellant’s general practitioner, Dr Lin, expressed the opinion that the appellant had a long history of lumbar back pain, commencing in January 2007, which was exacerbated by the accident. If that statement is reliable, it supports the position taken by the respondent. In our opinion, it is not reliable. Dr Lin prepared his report four and a half years after the events in question, and clearly prepared it based upon the notes of others. Reference to the notes from the Hawker Medical Practice reveals that the appellant attended the Practice on sixteen occasions between December 2006 and 5 June 2007. On only seven of those occasions is back pain recorded as a reason for her attendance. On only two occasions, her attendances on 26 April and 26 May 2007, was she seen by Dr Lin. His notes of these consultations reveal that he did not examine the appellant’s back, so could not have identified the specific location or cause of the pain recorded in the Practice’s notes.

The simple fact is that the opinion of a general practitioner who never examined the appellant’s back, proffered some four and a half years after the event, could never hold significant weight. Certainly, it must be considered of little or no value in comparison with the observations and opinion of a relevant specialist who examined and reported on the condition of the appellant’s back both before and after the accident.

We accept that the credibility of the appellant is a relevant consideration when determining the weight to be attributed to the opinions of those medical practitioners who concluded that the appellant’s midline low back pain subsequent to the accident was causally related to the accident. We have addressed the question of the appellant’s credibility under Grounds of Appeal (e) and (f). In short, we are satisfied that there were no grounds for the trial judge to discount the appellant’s evidence.

Ground of appeal (b):Her Honour was in error in rejecting the opinion of Dr Lethlean, a specialist providing a medico-legal report on behalf of the Respondent, who concluded that there was a new injury to the L5-S1 disc sustained in the accident, on the basis that there was no evidence of pre-existing symptoms in the Appellant’s lumbosacral L5-S1 area which was contrary to the medical records.

In his report dated 22 February 2008, Dr Lethlean states that he reviewed “the available records”, as well as interviewing and examining the appellant before preparing his report. It appears that he had some documentation from Dr Pik, unspecified rehabilitation reports, a report from “Dr Kenneth Man” (semble, Nam) from the Pain Management Unit dated 29 August 2007, and various reports on investigations conducted by MRI, CT and discogram. Of significance amongst those records is the report of Dr Nam of 29 August 2007. Dr Nam was a registrar of the Pain Management Unit at the Canberra Hospital. It is difficult to believe that in that position he did not have access to the Canberra Hospital records of the appellant’s admission in January 2007. He was certainly aware of that admission as he refers to it in his report. He refers to the appellant’s complaint at that time as sudden onset of pain in the sacroiliac joint, with the onset of “low back pain” after the accident.

We are, therefore, satisfied that Dr Lethlean was also aware of the appellant’s admission to hospital in January 2007, and of her complaints of sacroiliac pain at that time. As Dr Nam’s report sets out the findings from the CT scan (semble, MRI) in January 2007, and the whole body bone scan conducted at the same time, Dr Lethlean was clearly aware that the MRI scan in January 2007 revealed desiccation of the L5/S1 disc. Nevertheless, he considered that the appellant had suffered an injury to the L5/S1 disc in the accident, noting that pre-existing symptoms, impairment and disabilities were not evident in the lumbosacral L5/S1 disc area prior to the accident.

The trial judge dealt with Dr Lethlean’s opinions briefly, stating at [84]:

Dr Lethlean’s acceptance that there was no evidence of pre-existing symptoms in the plaintiff’s lumbosacral L5-S1 area was contrary to the medical records.

As we have already demonstrated with respect to the first ground of appeal, it is not correct to say that the appellant’s medical records for the period December 2006 to early June 2007 are inconsistent with the appellant’s evidence, and her statements to Dr Lethlean, that her low back pain in early 2007 was in the area of the right sacroiliac joint, whereas her low back pain which commenced after the accident was of a different nature, and felt in a different part of her back. The trial judge was in error in discounting Dr Lethlean’s opinion on this basis.

Ground of appeal (c):Her Honour was in error in rejecting the opinion of Dr Le Leu that the Appellant’s ongoing significant and partially disabling symptoms were the result of the accident, on the basis that Dr Le Leu was misinformed that low back pain commenced after the accident.

In his report of 26 February 2010, Dr Le Leu noted the appellant’s history to him of right sacroiliac pain prior to the accident (and continuing after it), and pain “lower down over the sacrum” after the accident. He also notes her differing descriptions of her perception of each area of pain. The trial judge accepted that Dr Le Leu’s opinion was that the appellant’s ongoing significant and partially disabling symptoms were a result of the accident. However, her Honour dismissed Dr Le Leu’s opinions, saying at [84]:

Dr Le Leu was misinformed that low back pain commenced after the accident.

As we noted with regard to the first two grounds of appeal, the trial judge impermissibly assumed that the references to “low back pain” in the Canberra Hospital and Hawker Medical Practice records from January 2007 to early June 2007 were references to midline pain. She also discounted the evidence of the appellant on the basis of the assumption that those records were referring to midline lumbar pain. Her Honour was in error in rejecting the opinion of Dr Le Leu on this basis.

Ground of appeal (d):Her Honour was in error in rejecting the opinion of Dr Mobbs, the operating surgeon who performed a lower back fusion on the Appellant, that the Appellant’s need for the fusion operation was caused by the subject motor vehicle accident.

In his report dated 7 October 2009, Dr Mobbs expressed the opinion that, based on the appellant’s history, the accident was a substantial cause of her low back symptoms. The trial judge dismissed Dr Mobbs’ opinion on the basis that he made no reference to the pre-accident medical records.

The appellant accepts that in his various reports Dr Mobbs makes no reference to the pre-accident medical records but questions the relevance of that fact. As the appellant points out, the absence of reference to those records would only be likely to be of significance if they revealed midline low back pain preceding the accident. In reality, the trial judge dismissed the opinions of Dr Mobbs on the same basis as she dismissed the opinions of Dr Brook, Dr Lethlean and Dr Le Leu, being their supposed ignorance of what her Honour assumed were records of pre-existing midline lumbar spine pain. Her Honour was in error in dismissing the opinions of Dr Mobbs on this basis.

Ground of appeal (e):Her Honour was in error in concluding that the Appellant’s claim “bore all the hallmarks of deceit and exaggeration” because she pursued her claim that the back pain in her lower back area was the result of the accident, in circumstances where the overwhelming majority of medical specialists supported the Appellant’s claim.

Ground of appeal (f):Her Honour was in error in concluding that the Appellant’s claim “bore the hallmarks of deceit and exaggeration” on the basis that her treatment would normally be expected to resolve or ameliorate her complaints of pain and that their failure to do so somehow made the Appellant guilty of deceit and exaggeration.

It is convenient to consider these grounds of appeal together, as they essentially raise the question of the trial judge’s findings on the appellant’s credibility. We have already set out the relevant portion of the judgment at [86] of these reasons above, but it bears repeating at this point:

There was no doubt that the plaintiff’s claim bore the hallmarks of deceit and exaggeration. She pursued her claim that her back pain commenced from and was the result of the accident in the face of clear medical evidence to the contrary. Treatment that might normally be expected to resolve or ameliorate her complaints of pain universally failed. The increasing doses of narcotic medication with which she was prescribed failed to relieve her pain. Her surgeon, Dr Mobbs, was unable to explain the new symptoms of which the plaintiff complained after surgery that he considered to be successful.

With respect, it is difficult to know how to approach those remarks. In her judgment, the trial judge makes no clear findings about the appellant’s credibility. She gives no clear examples of where the appellant engaged in deceit or exaggeration. If the trial judge was satisfied that the appellant had engaged in exaggeration or deceit, it was incumbent on her to make clear findings in that regard, specifying those instances where the appellant engaged in either exaggeration or deceit. This she did not do.

Her Honour’s statement that the appellant “pursued her claim that her back pain commenced from and was the result of the accident in the face of clear medical evidence to the contrary” cannot be sustained on the evidence. To the extent that her Honour was referring to the hospital records from January 2007 and to the records of the Hawker Medical Practice between January and June 2007, those records are, as we have concluded, not incompatible with the appellant’s evidence. Further, there was strong medical opinion from Dr Brook, Dr Lethlean, Dr Mobbs and Dr Le Leu supporting her case. There was other significant evidence supporting her case which the trial judge never adverted to, being the evidence of the appellant’s husband and her former work supervisor at the NRMA. We will consider their evidence shortly.

A fair reading of the appellant’s evidence, and of the tendered medical reports, does not suggest that the appellant sought to hide anything from either the court or the medical practitioners. Indeed, it appears she was open and frank about having previously suffered pain in her low back when she was a nurse, and about her history of mental health issues.

In an appropriate case, the fact that treatment for a particular injury is claimed to be inefficacious where medical opinion is to the effect that it would have been efficacious is a circumstance that may be relevant to determining the credibility of a witness. In our opinion this is not such a case. The fact that treatment offered to the appellant was said by her not to ameliorate her pain was far too flimsy a basis to conclude that she had engaged in exaggeration and deceit: Briginshaw v Briginshaw (1938) 60 CLR 336.

In the absence of specific findings as to the appellant’s credibility by the trial judge, we consider that we are in as good a position as her Honour to determine the appellant’s credibility. We can discern no cogent reason why the appellant’s evidence should not be accepted on the crucial issues of the nature and location of her low back pain prior to the accident, the history of her mental health condition prior to and after the accident, and the effect of her central lumbar pain on her ability to work, to manage her weight and to undertake normal household duties.

This is particularly the case given that her Honour’s finding was not based on the appellant’s evidence or how she presented in court. Instead, her Honour based her finding on her view that the medical evidence did not support the appellant’s claim that, having suffered one kind of back pain before the accident, she then found herself with another kind of back pain after the accident. Our view is that the medical evidence does not in fact undermine the appellant’s evidence of the two different kinds of pain.

Although the trial judge had the benefit of seeing and hearing the witnesses, we do not consider that it was, in view of other evidence, for the trial judge to conclude that the appellant’s claim bore all the hallmarks of exaggeration and deceit.

Ground of appeal (g):Her Honour was in error in failing to refer to the evidence of the Appellant’s supervisor, Ms Galvin, and her husband, two witnesses who corroborated her claim but whose evidence was neither accepted, rejected or dealt with by her Honour.

The trial judge dealt with the evidence of Ms Galvin briefly, and only considered it with respect to assessment of the appellant’s loss of income: at [94] of the judgment. Her Honour apparently did not consider the extent to which Ms Galvin’s evidence supported the appellant’s credibility with respect to the location of her back pain, and the extent of any depressive illness, before the accident. Ms Galvin’s evidence provided significant support to the case that was put by the appellant. She was an independent witness who testified to the appellant complaining of sacroiliac pain in May 2007, at a time when she could have had no motive for seeking to mislead Ms Galvin. She also testified to the ability of the appellant to cope with the demands of her work in the period leading up to the accident, and how that changed dramatically after the accident. The apparent overlooking of this evidence by the trial judge was an error.

Similarly, the trial judge does not mention the evidence given by the appellant’s husband. His evidence supported the appellant’s evidence that she was not depressed in the period leading up to the accident, but showed clear signs of depression after it. In addition, he gave evidence of the appellant’s deteriorating capacity for household chores in the period following the accident. That the trial judge apparently overlooked this largely unchallenged evidence was an error.

Ground of appeal (h):Her Honour was in error in concluding that the force of the impact at the time of collision “must necessarily have been minor”, despite the damage shown to the Appellant’s vehicle in the post accident photographs of it, and further, in concluding that evidence of an expert in ergonomics was usually provided in relation to an accident of this description (rear ended stationary vehicle) and that the Appellant’s injury was “atypical”.

At [45] of her judgment, the trial judge said:

Although the damage to the plaintiff’s car was significant, the force of impact must necessarily have been relatively minor given that the plaintiff’s vehicle was stopped and the defendant’s vehicle was travelling at most at 5 km/h. I accept that there are occasions when apparently minor motor vehicle accidents result in major injury. In such cases the court is usually provided with evidence of an expert in ergonomics to explain how an apparently atypical injury occurred. Evidence of this nature was not available in this case.

The respondent gave evidence before the trial judge, which she apparently accepted, leading her to conclude that his vehicle was travelling at no more than 5kph at the time of collision. Significant damage was occasioned to the appellant’s vehicle in the collision, but there was no evidence to suggest that the damage occasioned necessitated a greater impact speed than that found by her Honour. Her Honour was entitled to find that the speed of the respondent’s vehicle at the point of impact was no greater than 5 kph.

However, speed is only one factor in determining the force applied in a collision between two bodies. The other is mass. In the present case, there was apparently no evidence before the trial judge of the mass of the respondent’s vehicle. In any event, none of the medical witnesses expressed an opinion that the appellant’s claimed back injury could not have arisen in this accident. There was simply no evidence before the trial judge to allow her to conclude that the appellant’s claimed injury was “atypical” for the nature of the collision. Her Honour was in error in making this finding.

Ground of appeal (i):Her Honour was in error in rejecting the opinion of the psychologist, Dr Mahoney, that the accident substantially contributed to the appellant’s depression and that other contributing factors appeared to be minor.

Ground of appeal (j):Her Honour erred in rejecting the evidence of treating psychologist, Dr Clarke, who agreed with the diagnosis of Dr Mahoney of Major Depression resulting from the accident.

Ground of appeal (k):Her Honour was in error in preferring the opinion of Dr Glaser, a psychiatrist who performed a medical examination on one occasion only in April 2009, over the opinion of the treating psychologists.

Dr Mahoney, a clinical psychologist, saw the appellant on 11 August 2008, and provided a report to the respondent’s worker’s compensation insurer on

2 September that year. Dr Mahoney took a history from the appellant, including not only the relevant psychiatric history, but also the history of sacroiliac pain and neurological symptoms commencing in January 2007. She also administered a raft of tests to the appellant. Dr Mahoney concluded that the accident substantially contributed to the appellant’s depression. She considered that the appellant’s depressive symptoms appeared to be directly associated with her pain and associated losses. She also found that the appellant’s knowledge of the permanency of her physical condition was “a significant trigger for her current Major Depression”.

The appellant was referred to Dr Clarke, a clinical psychologist, by her general practitioner in September 2011. Thereafter Dr Clarke saw the appellant for treatment on a regular basis. She also conducted tests on the appellant. Dr Clarke not only took a history from the appellant, but also spoke to her husband, Dean Kaufman. She concluded that the appellant was suffering from a Major Depressive Disorder contributed to by the accident.

Dr Glaser saw the appellant on one occasion only, at the request of the respondent’s lawyers, in April 2009. Dr Glaser made certain assumptions about the appellant’s medical condition at around the time of the accident which are not supported by the evidence. He stated that it was clear that the appellant’s low back pain post-accident represented simply the continuation of a problem that had troubled her pre-accident. Dr Glaser apparently dismissed the accident as a new source of continuing pain for the appellant, and approached the question of the contribution of the accident to her depression on that basis. Consequently, he did not address all the factors that Dr Mahoney considered significant, being the appreciation of the appellant after the accident that the injuries she sustained in the accident were permanent. In addition, Dr Mahoney had the benefit of information provided by Mr Kaufman concerning the appellant’s psychological functioning prior to June 2007 that Dr Glaser did not possess.

None of the mental health practitioners suggested that the accident was the sole cause of the appellant’s depressive condition. Each accepted that it was a question of the extent to which the appellant’s condition had been contributed to by the accident. Dr Glaser approached the question on a basis that we find to be factually inaccurate, being that the pain the appellant experienced in her low back after the accident was simply a continuation of the pain she experienced before the accident. On the other hand, there is some force in his observation, as accepted by the appellant, that the significance of Dr Mahoney’s opinion may be reduced by her not possessing the full medical history of the appellant in the period leading up to the accident.

The fact that none of the mental health practitioners was cross-examined deprived the trial judge of a useful tool in determining to what extent the appellant’s underlying depressive condition was exacerbated by the accident. The evidence of Ms Galvin and of the appellant’s husband makes it probable that the appellant’s mental health status since the accident is referable to the effects of the accident, and that her mental health has not reverted to its pre-accident condition. This is, of course, consistent with the opinions of those mental health practitioners who had the best opportunity of assessing the appellant, Dr Clarke and Dr Mahoney.

The trial judge erred in rejecting the opinions of Dr Clarke and Dr Mahoney.

Ground of appeal (l):Her Honour was in error in failing to be satisfied that the Appellant’s weight gain was a consequence of the accident.

There was clear evidence linking the appellant’s weight gain after the accident with the injuries she sustained in the accident. Dr Le Leu referred to the appellant not being able to exercise after the accident, and her having to cease weight loss medication so that she could take antidepressants. Dr Lin referred to the appellant being overweight “as a result of immobility from chronic pain”. There was clear evidence from the appellant at the hearing and from the medical reports tendered that she had gained about 15 kg since the accident.

The trial judge appears to have approached this issue on the same basis that she approached the question of the appellant’s back pain: the appellant had the same problems before and after the accident. With respect, this was quite an inadequate approach. The appellant may well have had problems maintaining her weight prior to the accident, but this did not mean that the accident did not exacerbate that situation. Her Honour makes no reference to the medical evidence supporting the appellant’s claim, and simply states she is not satisfied that the appellant’s weight gain was a consequence of the accident. In the light of the appellant’s evidence and that of the medical witnesses it was not open to her Honour to find that the appellant’s weight gain after the accident was not, at least, contributed to by the injuries she sustained in the accident.

Dr Lim’s Reports

Before concluding, it is appropriate that we say something about the reports prepared for the respondent by the occupational physician, Dr Michael Lim. The trial judge placed significant weight on Dr Lim’s reports. In our opinion, she was wrong to do so. Dr Lim expressed the opinion that the appellant’s medical records prior to the accident did not support her claim that she suffered right sacroiliac pain prior to the accident. This was an error on his part in interpreting those records. Dr Lim’s opinion that the appellant’s complaint of pain radiating down both legs in March 2007 was inconsistent with pain arising from the appellant’s sacroiliac joint overlooks the fact that the appellant’s then neurological symptoms included shooting pains and other symptoms in her legs. Dr Lim never addressed the possibility that the pain the appellant complained of in her legs in March 2007 may have been part of the appellant’s neurological symptoms.

There is a logical inconsistency in Dr Lim’s reliance on the supposed minor nature of the appellant’s injuries arising from the accident as proof of the proposition that her midline lumbosacral pain was not caused by the accident. There was no evidence that the forces involved in the accident, and to which the appellant was subject, could not, or were not likely to, cause an injury to the appellant’s lumbar spine, or to render symptomatic a pre-existing asymptomatic degenerative disc. To describe the injuries sustained by the appellant as minor implies that the lower back pain or, strictly, the alleged low back injury has been rejected as being a consequence of the accident.

As the trial judge noted, Dr Lim suggested that the appellant was suffering from a psychiatric disorder. Indeed, he went so far as to provide a differential diagnosis of Somatisation Disorder, Conversion Disorder and Hypochondriasis in his report of September 2008. This diagnosis received no support from any of the mental health professionals. The appellant saw a psychiatrist at the Canberra Hospital in January 2007 who concluded she had no psychiatric condition. In March 2009, she saw Dr Glasser, who did not support Dr Lim’s diagnosis; nor did the psychologists Dr Mahoney and Dr Clarke.

Dr Lim did not have an opportunity to examine the appellant’s back prior to the accident, whereas Dr Brook did. Dr Lim’s opinions are based upon the assumption that those medical practitioners who treated the appellant between January and June 2007 would not have recorded the appellant complaining of lower back pain if she had complained of sacroiliac pain. This assumption simply cannot be justified.

CONCLUSION

The trial judge’s decision was infected with numerous errors, such that it cannot stand. As desirable as it is to bring this matter to finality, we do not have the benefit of counsel’s submissions on what damages should be awarded based on our findings. For this reason we will remit the matter to the Master for an assessment of damages based upon these reasons.

For the benefit of the parties and the Master we make it clear that we are satisfied that the appellant suffered an injury to her L5/S1 intervertabral disc in the accident on 7 June 2007. It is probable that the appellant had an asymptomatic degenerate L5/S1 disc prior to the accident, which the accident rendered symptomatic. The pain which the appellant has experienced in her midline lumbar spine since the accident is a result of the accident, and is unconnected with the sacroiliac pain she experienced prior to it. The medical treatment the appellant has undergone for her midline lumbar pain is entirely referable to the accident. We are also satisfied that the appellant’s underlying condition of depression was exacerbated by the accident.

ORDERS

The order of the trial judge entering judgment for the appellant in the sum of $40,600.00 is set aside. The matter is remitted to the Master for assessment of damages in accordance with these reasons. The respondent is to pay the costs of the appeal.

I certify that the preceding one hundred and thirty four (134) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 18 October 2013

Counsel for the Appellant:  Mr G A Stretton SC with Mr D Stretton
Solicitor for the Appellant:  Stacks/Compensation
Counsel for the Respondent:  Mr P J Deakin QC with Mr J Guihot
Solicitor for the Respondent:  Snedden Hall & Gallop Lawyers
Date of Hearing:  19 February 2013
Date of Judgment:  18 October 2013

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Citations

Kylie Tricia Kaufman v Wayne Kozak [2013] ACTCA 30

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Wayne Kozak v Kylie Tricia Kaufman [2014] HCASL 94

Cases Citing This Decision

2

High Court Bulletin [2014] HCAB 4

Wayne Kozak v Kylie Tricia Kaufman [2014] HCASL 94

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Australian Capital Territory v Crowley [2012] ACTCA 52

Re Hillsea Pty Ltd [2019] NSWSC 1152

[2013] ACTCA 30

18 October 2013

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Evidence

Legal Concepts

Appeal

Damages

Expert Evidence

Causation

Remedies