Martin v Davies
[1989] TASSC 103
•30 June 1989
Serial No. B25/1989
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Martin v Davies [1989] TASSC 103; B25/1989
PARTIES: MARTIN, Hilda
v
DAVIES, John
FILE NO: 2256/1984
DELIVERED ON: 30 June 1989
JUDGMENT OF: Underwood J
Judgment Number: B25/1989
Number of paragraphs: 56
Serial No B25/1989
File No 2256/1984
HILDA MARTIN v JOHN DAVIES
REASONS FOR JUDGMENT UNDERWOOD J
30 June 1989
In this assessment of damages the defendant does not dispute that, on the 19 July, 1980 he drove into the back of the plaintiff's stationary car and thereby caused the plaintiff to suffer what is commonly known as a whiplash injury.
The plaintiff claims that the injury caused pain in the neck and shoulder on the left side, headaches and restriction of neck movement. She also claims that she still suffers from pain and restriction of movement in her neck and left shoulder, from headaches, pain in the left elbow, partial numbness in the left arm and paraesthesia in part of the left hand. She said that, at the end of 1982, the symptoms became severe and that thereafter their severity increased to such a degree that in March 1984 she was forced to give up work. She claims that since then she has remained incapacitated from working.
The defendant disputes the extent and severity of the plaintiff's symptoms, in particular that they were and are sufficiently severe to disable the plaintiff from working. He also disputes that his tortious conduct caused any of the symptoms from which the plaintiff has suffered since the beginning of 1983.
Three medical practitioners expressed the opinion that the plaintiff's symptoms were substantially caused by the accident and two medical practitioners were of the opinion that they were not. The fundamental issues requiring resolution are:
1 From what disabilities and pain has the plaintiff suffered since the accident?
2 How have they affected the quality of her life and earning capacity?
3 What is the causal connection between such disabilities and pain and the accident?
Underlying the resolution of these issues is an assessment of the plaintiff's credit. In this respect it must be borne in mind that the court has had the opportunity, not available to any of the medical witnesses, of observing and listening to the plaintiff for many hours while she gave evidence from the witness box. Before turning to the plaintiff's evidence I would venture to repeat and respectfully adopt the following passage from the judgment of Bright J. in Dibbins v Dibbins (Supreme Court, S.A., unreported 231078) cited with approval in Donjerkovic v Adelaide Steamship Ind Pty Ltd (1980) 24 SASR 347 at p353:
"This case is an example of the useful principle that where medical evidence is in conflict the primary consideration may be the credibility of the plaintiff. True, the medical specialists, with their skill and experience, can move parts of the body so as to test the range of involuntary movement. They can also, by means of diagnostic aids, detect the presence or perceive the apparent absence of physical abnormalities which might be the cause of claimed symptoms. They can also, with their knowledge of anatomy, give a valuable opinion as to whether claimed symptoms are consistent with each other or with a suggested physical cause. But ultimately we must come back to the symptoms. Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the plaintiff is telling untruths about or exaggerating her symptoms. But it is the symptoms that are central, not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the plaintiff is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognise this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.
Very often there is no reliable independent corroboration of the patient's account. In such a case, obviously, the medical evidence is of the greatest importance, especially if the medical evidence is all one way. But if the doctors disagree the judge still has to decide, and he may not make it his first concern to asses the relative credibility of the doctors. I think he may first assess the evidence of the patient."
The plaintiff will be 49 in September this year. She was born in London. She graduated from the University of London with a diploma in Social Studies and immediately commenced work as a registered social worker. In 1958, while still at the university, she married a fellow student who later graduated with a degree in Fine Arts majoring in three dimensional design. Apart from six weeks maternity leave in 1965 when the only child of the marriage, a son, was born, she remained in continuous employment with the same employer until the family emigrated to Australia in 1972.
The plaintiff's husband took up a teaching post at a teachers' college in Victoria, and after a few months the plaintiff started work as a credit officer in a retail business. After twelve months she joined the Commonwealth Public Service as a base grade clerk in what was then known as the Commonwealth Employment Service.
In 1978, the family moved to Launceston. The plaintiff's husband obtained a job at the Tasmanian School of Art in Launceston and she secured a position as an employment officer, Class IV. Whilst in Launceston she was promoted to an employment officer Class V which was basically a managerial job and on occasions, she held acting positions at the level of Class VI.
The accident occurred on 19 July 1980. At that time the plaintiff was the acting manager of the Kings Meadows' office. Previously she had enjoyed good health and had no prior history of neck pain. She used to swim, cycle, bush walk and, with her husband, sail offshore in their 28 foot boat. In the accident the plaintiff's stationary vehicle was struck in the back with considerable force by a Toyota four wheel drive vehicle. The plaintiff was thrown forward and hit her face on the steering wheel. She was shocked but did not lose consciousness. She immediately experienced pain in her neck, headache and some tingling in the left arm. She spent the rest of that day and the next in bed. On the following day she consulted her general practitioner, Dr Edmond. He diagnosed a whiplash injury and prescribed heat, rest and analgesic and muscle relaxant drugs. The plaintiff said that, during the ensuing week, she experienced pain in her neck and shoulder on the left side, headaches and tingling in the left upper limb. She also said that after a week she saw Dr Edmond again and he certified her fit for work. Dr Edmond had no record of this second consultation. However I find the probabilities are that she did see him as she said but, in any event, nothing turns upon this for it was common ground that she returned to work a week after the accident. The plaintiff is left handed. The existence and severity of symptoms during the ensuing 2½ years was the most significant factor in the formulation of the opinions expressed by the medical practitioners but surprisingly, there was a paucity of evidence concerning this important matter.
The plaintiff said that during this period if she sat at her desk, writing for any length of time, she felt discomfort and pain in her neck. She said that after the accident the symptoms in her neck subsided but the pain in the shoulder persisted to some degree although it did not prevent her working or lifting things. I accept as accurate that account of the plaintiff's condition from shortly after the accident until about the end of 1982. She claimed that during this period, on more than one occasion, she consulted Dr Edmond complaining of symptoms in her neck and left shoulder but I do not accept this evidence. Dr Edmond said that the plaintiff consulted him on eleven occasions spread fairly evenly between the 21 July 1980 (two days after the accident) and the 14 January 1983. All of these visits were in connection with minor complaints such as colds, indigestion and urinary infection. He had no record of any complaint of pain in or in the vicinity of the cervical spine until a consultation on the 14 January 1983. I accept Dr Edmond's evidence with respect to this matter and find that, during the 2½ years following the plaintiff's return to work she did not consider that the symptoms in her neck were sufficiently severe to warrant mention to her general practitioner.
The plaintiff remained continuously in the employment of the Commonwealth Employment Service until about March 1984 when, according to her evidence she gave up, because the pain and disability in her neck, left shoulder and left upper arm prevented her from doing her job. In August 1984 she retired from the Public Service on the grounds of ill health and ever since has been in receipt of superannuation payments. Apart from a period between May and September 1988 when she worked part time for the Tasmanian Government Department of Social Services, she has remained unemployed since 1984.
In 1981 there occurred an event which was to have a significant impact on the plaintiff's life. Prior to then she described her marriage as a good one. In 1981, the year following the accident, her husband went back to England for a visit. Following his return the plaintiff became suspicious that, whilst away, he had had an affair with another woman who was known to her. When tackled about it the plaintiff's husband denied any sexual liaison with this woman but, from correspondence from her to the plaintiff's husband, the plaintiff's suspicions increased. The plaintiff described Christmas 1982 as "pretty strained". She said that there had been telephone contact between her husband and the other woman during the latter half of 1982. Ultimately, the plaintiff's husband admitted that there had been an affair but that the illicit relationship had been terminated. The plaintiff said that nonetheless, her relationship with her husband deteriorated; "I was always sort of on watch – that irritated my husband". She said that the whole affair had "hurt her very badly". Some time, I infer in early 1983, the plaintiff's husband suffered from an allergy to some substance used by him in his teaching job and he went on sick leave. As the events turned out he never returned to a teaching job but whether that was from force of circumstances or choice is not clear.
In about May 1983 the plaintiff accepted an offer to transfer from Launceston to the Hobart office of the Commonwealth Employment Service. In doing so she accepted a responsible temporary job taking charge of employment counsellors throughout the State and organising their section in the Department. Her then immediate supervisor, Mr Warren, said with respect to this period that her job was "to sort them out and put them on the right path". The work involved mental stress and a considerable amount of travel around the State. She was promoted to acting Class VI.
On the 14 January 1983, 2½ years after the accident and immediately after the Christmas which the plaintiff described as "pretty strained", she consulted Dr Edmond. She complained of headache, pain in the back of the neck, pain in the area of the left scapula, the left breast and the left shoulder radiating down the arm as far as the hand. On examination Dr Edmond found the plaintiff was tender over the trapezius muscle and very tender over the anterior aspect of the left shoulder joint. All movements of the hand produced pain in the arm. The breast was normal. X–rays were reported as being normal. Dr Edmond diagnosed arthritis of the left shoulder joint possibly due to degeneration of the rotator cuff of the shoulder. However, I accept the opinion of Dr Bye that this diagnosis was erroneous.
There were two further consultations with Dr Edmond, one on the 14 March 1983 and one on the 2 May 1983.
On both occasions the plaintiff complained of symptoms similar to those complained of on the 14 January 1983. The results of the medical examinations on these consultations were substantially the same as those obtained on the 14 January. Dr Edmond considered that the plaintiff was depressed and that her matrimonial problems were a significant factor in her physical condition. He made a note, "no longer able to cope with husband's problems".
When the plaintiff started work in Hobart she left her husband and son in Launceston. The latter was finishing his schooling there. The plaintiff found an old house in Woodbridge and bought it. She has lived there ever since. In Launceston, her husband bought a small crayfishing boat. The plaintiff said that the plan was that he would come to Hobart, do up the house at Woodbridge and earn some income from crayfishing. In view of the parlous state of the marriage I infer that there must have been some doubt about this plan being put into effect. However, some time during 1983, her husband did join her at Woodbridge and did use his boat for crayfishing.
The plaintiff said that she found that the symptoms in her neck and arm increased in severity during the early part of her new job in Hobart. She gave evidence of what she described as a significant and frightening event at the end of 1983. She said that one morning she found she was unable to lift the top half of her body off the bed or get out of bed without assistance. Her shoulder was hurting and her left arm felt numb. With her husband's help she managed to get out of bed and visit a local medical practitioner, Dr Hamilton. He prescribed some treatment and physiotherapy and, in February 1984, referred her to Dr Cull.
According to the evidence, there were no medical consultations between May 1983 and the end of that year when the incident she described as frightening occurred. There was no independent evidence of the precise date the plaintiff ceased work but I accept her evidence that after the acute attack towards the end of 1983 and the visit to Dr Hamilton, she did not return to work except for short periods. In March 1984 she went on sick leave and remained on leave until she retired in August that year.
The plaintiff's evidence of her condition during the last six months at work was sparse. She said that during this period her symptoms gradually got worse and by the time she retired from the Public Service she was suffering from "a painful neck, restricted movement, painful shoulder, painful elbow, tingling in two fingers of the left hand, restricted ability to lift, restricted grip in the left hand, painful upper part of the spine, headaches, blurred vision and ringing in the left ear."
For reasons given later, I find that, generally speaking, the plaintiff tended to exaggerate the extent of her disabilities. I find that at the end of 1983, the plaintiff suffered from an acute episode of pain and immobility which led her to consult Dr Hamilton. I have some reservations about whether it was so severe that it physically prevented her getting out of bed unaided. Notwithstanding exaggeration in her evidence, I accept the substance of the plaintiff's evidence that, during the early part of 1984, whilst being treated, initially by Dr Hamilton and later by Dr Cull, the pain and restriction of movement in her neck and left shoulder and accompanying numbness in the left arm became so severe that it incapacitated her from carrying out her work with the Commonwealth Employment Service. In making this finding I take into account the following matters:
1The plaintiff's evidence, which I accept, was that she enjoyed her work. That evidence is consistent with her work history, its continuity and in particular, her relatively rapid promotion in the Public Service.
2The plaintiff's relationship with her husband was such that the maintenance of her financial security and independence was of great importance to her.
3The plaintiff's claim is corroborated by the evidence of Mr Warren whom I found to be an impressive and reliable witness. He spoke of her generally as a very capable hard–working public servant with a bright personality. He said that however, during the latter half of 1983 he noticed a change. He said "She tended to become irritable. She certainly complained of headaches. Her movements became quite stiff around the neck area. She appeared to suffer from lapses in concentration and her enthusiasm, the bubbling personality appeared to diminish."
However, this finding leaves unresolved the issue of a causal connection between those symptoms and the accident in July 1980.
The plaintiff said that between giving up work in early 1984 and May 1988 she confined her activities to household work, gardening, walking and limited driving. I am satisfied from her answers given in cross–examination with respect to her disabilities during this time, that the plaintiff's account was an exaggerated one. I find that she was able to drive a motor vehicle, albeit for limited distances and that she was able to do normal household tasks although stress on her neck was productive of pain and restriction of movement. As time went by the plaintiff found that the practice of relaxation techniques improved her condition and by early 1988 she felt that she could attempt to return to the work force. In May she started work, 22 hours a week, as a counsellor with the State Department of Community Welfare. This work involved daily driving from Woodbridge to the city, driving about the city and counselling families in crisis, victims of sexual abuse and the like. She said that the symptoms of pain in the neck and shoulder, the headaches and the numbness in the left upper limb returned to such an extent that by September 1988 she felt she could not continue. The plaintiff said that as soon as she gave up work the symptoms abated but did not disappear.
She said that presently she suffers from pain in the neck on the left side and in the left shoulder. There is restriction of movement in the neck. She described her left shoulder and arm as if there is a ton weight dragging it down. She said that on occasions she suffers from exquisite pain on the inside of the left elbow to such a degree that even touching the body with the elbow is extremely painful. Rest in a sling relieves the condition. The plaintiff also complained of tingling in the fourth and fifth fingers of the left hand and a reduction in the power of grip, sometimes to the extent that she is unable to hold a pen. She also spoke of "a tremendous explosion in the head" if she turned her head quickly which produced blurred vision and headache. With respect to all these symptoms the plaintiff said that they appeared or got worse with activity and that rest and relaxation improved her general condition.
The plaintiff impressed me as an intelligent and articulate woman. She appeared to be, and her evidence confirmed, that she was by nature a tense person, conscientious, emotionally reserved and somewhat impatient and intolerant of people whom she considered to be acting in an ill advised or ill informed manner. Generally speaking, I assessed her to be a witness of the truth but given to exaggerate her disabilities. On several occasions in the various histories she gave to the defendant's medical advisors she made statements which were not true but, I gained no impression that the untruths and exaggerations were designed to increase the award of damages. Rather, they seemed to originate from impatience arising from what she perceived to be a lack of understanding of her plight by the medical practitioners and perhaps, from an unconscious bid to draw attention to her condition. I find that, generally speaking, since early 1983 the plaintiff has suffered from and is suffering from pain, restriction of movement, numbness and paraesthesia but not to the degree described by her in her evidence. However, I am satisfied that those symptoms were and are sufficiently disabling to prevent her from sitting at a desk and writing for prolonged periods, driving long distances, lifting and carrying weights and carrying out a full range of household duties.
I resume the narration of events which occurred after the plaintiff, and later her husband, moved to Woodbridge during the latter half of 1983. The matrimonial situation between the plaintiff and her husband did not improve and by 1985 they agreed to return together to the United Kingdom for a visit and there resolve the question of whether the plaintiff's husband wished to remain with the plaintiff or live with the other woman. While in England, the plaintiff's husband spent a great deal of time with the other woman and by the time the plaintiff and her husband returned to Tasmania in June 1985 the plaintiff said that she had decided that the marriage was finished although her husband appeared to be content to live with her but visit the other woman "every couple of years". Their relationship limped on until January 1986 when the plaintiff's husband left to live with the other woman. The marriage was dissolved in March 1987.
I find, on the plaintiff's own admission and the circumstances recounted by her, that the whole period between the end of 1982 and at least early 1986 was one of great emotional tension and unhappiness for her. It is to be noted that the commencement of this period, 2½ years after the accident, was the first occasion since the accident that the plaintiff complained to any medical practitioner of symptoms in her neck and arm. It is also to be noted that shortly after the commencement of this period the plaintiff took on a new and demanding job with her employer which involved a considerable amount of travelling. It was not long after she started this job that Mr Warren observed a deterioration in the plaintiff's condition which ultimately led to her giving up work. Before I turn to the medical evidence it is appropriate to consider the law.
In order to succeed in her claim for damages, the onus lies upon the plaintiff to establish, on the balance of probabilities, that the injuries and loss from which she has suffered were caused by the defendant's admitted breach, on the 19 July 1980, of the duty of care he then owed her. Authority for this proposition is to be found in Bonnington Castings Ltd v Wardlaw [1956] AC 613; Wilsher v Essex AHA [1988] 1 All ER 871; St George Club Ltd v Hines (1961–62) 35 ALJR 106; Vyner v Waldenburg Bros Ltd [1946] KB 50.
In Bonnington Castings Ltd, Lord Reid said at p620:
"It would seem obvious in principle that a pursuer or plaintiff must prove not only negligence or breach of duty but also that such fault caused or materially contributed to his injury".
In the present case, as in so many like it, proof of the necessary causal link requires the drawing of an inference from all the facts which have been proved to the satisfaction of the court. Fitzgerald v Penn (1954) 91 CLR 268 establishes that the question of causation in actions for negligence does not involve nice philosophical debates about cause and effect, but requires a common sense approach – a jury approach – and is answered in the plaintiff's favour if the evidence shows on the balance of probabilities that the negligence was a material or substantial cause of the damage suffered. See also Glanville Williams, "Causation in the Law" 1961 Camb LJ 62.
Of particular relevance in the present case is the proposition that the question of causation has to be determined upon the whole of the evidence; not just that given by the medical experts. See Ramsay v Watson (1962) 108 CLR 642 at p645; EMI (Australia) Ltd v Bes [1970] 2 NSWR 238. If the only inference is that the defendant's tortious conduct was one of several possible causes of the injuries and loss and not the more probable cause, the plaintiff will not recover damages for those injuries and loss. In the present case, the question of causation falls to be determined in accordance with the foregoing principles.
At the outset it can be said that the plaintiff has discharged the burden of proof with respect to the injuries and loss sustained between the occurrence of the tortious conduct and the end of 1982 or early 1983 when her symptoms increased in severity and necessitated her consultation on the 14 January 1983 with Dr Edmond. Although not expressly conceded, counsel for the defendant did not contend to the contrary.
All the medical practitioners were agreed on the following matters concerning "whiplash injuries":
1In the absence of objective evidence, the patient's history is the critical factor in determining causation, diagnosis and prognosis.
2Symptoms of pain in the cervical spine, associated disabilities in the upper limbs and headaches may occur spontaneously. They may also occur as a result of trauma or emotional stress or both.
3In cases where the initial symptoms abate shortly after the trauma, but re–emerge after some years with increased severity, radiological evidence of disc or bony damage is almost always apparent which, in the absence of evidence of subsequent trauma, is proof of the causal link.
4Even in the absence of evidence of disc or bony injury, persisting symptoms may be attributed to trauma but in such cases, the history almost always discloses that the initial symptoms failed to settle in the year or so after the infliction of the insult.
With respect to the plaintiff, all the medical opinion was to the effect that the X–Rays showed insufficient changes to the plaintiff's cervical spine to account for the symptoms of which she has complained since 1983. Thus, the plaintiff's post accident history was the critical factor in the opinions expressed by all medical practitioners.
Dr Cull gave evidence that he was first consulted by the plaintiff on 5 February 1984 on a referral from Dr Hamilton. In April 1984 he arranged for a myelogram to be taken. He considered that it disclosed nothing of significance. Dr Cull saw the plaintiff again in July and December 1984. He then referred her to Dr Bye for treatment as he was about to leave the State. It was Dr Cull's opinion, "based entirely on the history" given him by the plaintiff that her symptoms were probably caused by the motor vehicle accident in 1980. He considered that the recurrent nature of the problem suggested some injury to the soft tissue of the neck which progressed to disc damage undetected by the myelogram and that this would account for the symptoms in the arm. He conceded the possibility that the symptoms were not related to the motor vehicle accident but thought that it was probable that they were so related. He agreed that symptoms such as those experienced by the plaintiff could be stress related.
With respect to the history he said:
"That she had an acute pain in the neck and shoulder ... almost immediately after the accident with stiffness that settled down, but she had recurrent symptoms after that, not related to any particular accident, of locking and crunching and spasms and headache and then the two weeks before I saw her, she developed the symptoms in the neck again and also in the left arm and I think that's – I got the impression that that's why she went off to the doctor, because of the arm or shoulder symptoms as well and I do recall she said to me she thought a lot of these symptoms were due to tension because ... she had been promoted or had a new job or the job was more demanding and she thought a lot of these symptoms at the back of the head and the neck were probably tension related and it was only when she developed this more severe episode that she wondered if there might be more to it and I think she'd gone to a doctor, a GP, and the question of the cause of all this was brought up and she was sent along to see me."
A little later in his evidence Dr Cull said that his understanding of the history was that:
"From time to time, it wasn't there continuously for two years, that she was having episodes of pain, of headache and stiff sore necks and that were crunching and pain (sic) radiating to the shoulder, lasting for several days over that period between 1980 ... and early 1984 and it was only when she got the symptoms in the arm and had that severe episode ... that she thought it was better to go and find out what the arm component was."
The difficulty in accepting Dr Cull's opinion that the symptoms were caused by the accident is that:
1His understanding of the history, the sole basis for his opinion, was at variance with the plaintiff's evidence in that she did not describe any episodes of locking or crunching or spasm during the 2½ years following the accident.
2He was wholly unaware of the plaintiff's matrimonial situation and the close temporal relationship between the deterioration in that situation, its attendant emotional tension and the onset of severe symptoms.
Dr Cull said that stress can cause muscle tension, stiff necks and headaches but that such symptoms do not usually occur suddenly. With respect to the pain in the elbow he thought that it suggested some nerve root injury or nerve involvement. He said that such symptoms often were associated with a neck injury but evidence of subsequent degenerative change was usually present. He conceded that symptoms such as those complained of by the plaintiff could arise in the absence of trauma.
Dr Bye first saw the plaintiff on the 8 February 1985. According to the evidence he saw her again on the 8 October 1985 and the 7 August 1987. Her principal complaint on first consulting Dr Bye was of pain in the elbow. He found two signs. There was palpable muscle spasm in the area of the cervical spine and the circumference of the left arm was on measurement, half a centimetre smaller than the left. Dr Bye conceded that this difference was not significant although, as the plaintiff was left handed, he would have expected the muscle bulk on the left side to be greater than that on the right. I understand Dr Bye's evidence to be that these signs indicated to him that the plaintiff's complaints were genuine but that they did not assist in a determination of the causal relationship between them and the trauma in 1980. With respect to the complaint of pain in the elbow and tingling in the fingers Dr Bye was uncertain as to the cause. He considered the possibility of brachial plexus injury but on balance considered it more likely that in some way it was related to injury to the neck.
On the issue of the causal link between the symptoms and the motor vehicle accident, the plaintiff's condition over the 2½ years following the accident as described by her in evidence was put to him. He was asked why the symptoms would increase in severity after the 2½ year period. He postulated a theory consistent with his opinion that the more severe symptoms were attributable to the accident. He said:
"If a trauma caused a ligamentous problem in the neck such that there was damage to the discs or instability within the neck [albeit undetectable on radiological or other investigation] and if the person was living within the limits of the stability of that neck such that the muscles and remaining ligaments were holding that neck satisfactorily, then they could experience no symptoms. If, over a period of 2 years, the muscles became a little weaker because they weren't exercising, and this is obviously the value of physiotherapy and exercises – that they maintain muscular control – or if those ligaments were slowly stretching then one could imagine a scenario where those ligaments – having been damaged – slowly gave up the ghost if you like and slowly became worse and worse and then allowed the symptoms to supervene. Obviously, if there is again some change in activities, so that if someone is comfortable with their problem, their neck for 2 years and not doing much and then they start carrying wood or digging in a garden or that sort of thing, they're perhaps ... you could suggest that they're putting more stress on those ligaments and muscles ... the onshot of that is obviously if you've then got that sort of problem – that ligaments have been damaged – they've been held in the balance for some time – then that balance goes, then one would expect that as time goes on then more trouble should arise and you should see things happening radiologically."
The validity of this theory was denied by Drs Duffy and Southby. Dr Bye agreed that emotional stress can cause symptoms in the neck.
The difficulty in accepting Dr Bye's theory and opinion with respect to the causal link between the tortious act and the symptoms since the end of 1982 is that, on the evidence, immediately before the plaintiff experienced increased symptoms, her neck had not been subjected to any stresses other than those to which it had been continuously subjected over the period of 2½ years since the accident. At the time the more severe symptoms became apparent, her job remained unchanged. The change in employment, with its attendant extra driving and perhaps other physical stress, did not occur until some months after she consulted Dr Edmond with complaints of increased pain and disability. On the evidence, the only intervening event which could account for her increased symptoms was the emotional stress due to the decline in the relationship between herself and her husband. Dr Bye was completely unaware of this factor in the plaintiff's life.
By way of addition to his opinion that the plaintiff's symptoms "mainly have been caused by the motor vehicle accident" Dr Bye said that he was in no doubt that the problems were caused by a combination of organic disorder and emotional stress.
Dr Duffy saw the plaintiff twice; on the 17 September 1984 and the 19 November 1985. The following history that he took on the first occasion is only slightly at variance with the facts as I have found them.
"She told me she'd been involved in a motor vehicle accident some time in 1980, she couldn't remember the exact date. She told me that her car was struck from behind by another car ... she said that immediately following the accident she developed some stiffness in her neck and a headache. The symptoms persisted and she saw her general practitioner, Dr Edmond on the second day following the accident. She told me that she was off work for one week and returned to work. She told me that about six weeks later she developed further headaches associated with some neck stiffness, she attributed this to tension at work and so on. She said that following that, she'd had occasional symptoms of headaches, neck stiffness and shoulder pain occurring about twice a year. She didn't seek medical advice or any time off work, although, because of her ability to use flexi–time, she sometimes altered her hours of work. She said that apart from these more acute symptoms she had a constant feeling of stiffness in the neck and some discomfort in the wrist and fingers of the left hand. At no time did she require treatment. She told me that in mid 1983, she woke one morning with pain and stiffness in the neck and pain in the left shoulder. She saw her doctor who arranged physiotherapy which didn't help. The doctor told her that she had arthritis in the left shoulder at the time. She told me that ever since that time she'd suffered from recurrent headaches. In late December 1983 she woke again in the morning with severe pain in the left shoulder and pain in the neck. The arm felt heavy and she had a severe and unpleasant burning pain between her shoulders. She saw Dr Hamilton and was referred to Mr Cull and Dr Jackson." [Dr Duffy went on to relate the plaintiff's history as given to him since 1984.]
On examination he found no abnormal neurological signs, the muscle bulk on both upper limbs appeared, without measurement, to be equal. Neck movements were full although the plaintiff complained of pain in the extremes of movement. She also complained of tenderness to palpation of the trapezius muscles between the neck and shoulder and on the medical epicondyle of the left elbow. There was no objective evidence to account for the symptoms.
Dr Duffy opined:
"I felt that accepting the history that she had ... given that she'd had relatively mild symptoms of neck pain following a motor vehicle accident in 1980, that the symptoms had been intermittent with significant periods of freedom from pain, that they had really dated from an acute episode of pain in mid–1983 or more importantly from an episode in December 1983, I felt it was unlikely that her present symptoms could be attributed to the accident in 1980 and felt on the balance of probabilities they were not related to that accident."
At the time of the second consultation Dr Duffy's findings on examination and his opinion remained unchanged. He accepted that the complaints were genuine but observed, "I did wonder whether there might not now be some psychogenic element in the symptoms". Dr Duffy did not know of the prolonged deterioration in the relationship between the plaintiff and her husband. The plaintiff did tell Dr Duffy at the time of the second consultation that she had returned to England but said it was "to see her parents who were worried about her condition". Dr Duffy thought that the plaintiff's matrimonial relationship was "a significant" factor in her physical condition.
With respect to Dr Bye's theory, Dr Duffy's view was that it was untenable. He said that nearly everybody, at some stage in their life, sustained a significant jarring injury to the neck. Consequently, if the theory is correct, in the majority of cases of patients complaining of symptoms such as those experienced by the plaintiff the cause would be attributed to trauma. However, at least 50% of such patients seen by Dr Duffy demonstrated no causal link between pain and trauma.
Dr Southby examined the plaintiff at the request of the defendant on 18 May 1988. It was his opinion that there was no causal link between the plaintiff's symptoms when he examined her and the motor vehicle accident in 1980. He shared with the other medical practitioners the view that whiplash injuries can persist in the absence of demonstrable abnormalities and that the most important feature is the length of time between the accident and the persistence of symptoms. He said:
"It is generally conceded that if a patient has a whiplash injury in which soft tissues only are involved and subsequent investigation such as X–Rays, myelograms, show no evidence of disc damage and nerve root compression, then normally those symptoms do not persist longer than 2 years".
Dr Beetham, orthopaedic surgeon of Victoria, was consulted by the plaintiff on 12 August 1986. He related the important aspect of the history given him by the plaintiff in the following terms:
"She had developed pain in the neck and headache following this accident. She had continued to have problems with her cervical spine from then on. She said that she had no neck problems or shoulder girdle problems prior to the accident of 1980. She said initially she had notable stiffness and pain and this settled down over some weeks. She had had recurring symptoms following this time. She described stiffness in the neck which became worse at various times and she also had intermittent pain radiating into the left shoulder and in the region of the left breast. She tended to get a burning ache in the inter–scapular region and she still had an intermittent feeling of heaviness in the left arm and intermittent tingling in the little and ring fingers of the left hand."
That history is at variance with the plaintiff's evidence in that the intermittent pain radiating into the left shoulder and in the region of the left breast and the burning ache in the inter–scapular region did not become apparent until 2½ years after the accident.
On examination Dr Beetham found what he described as some "trigger points" in the occipital and shoulder girdle as positive which indicated to him that the complaints were genuine. His opinion was that:
"This patient was suffering from the effect of a soft tissue injury to her lower cervical spine. There was no sign of any exaggeration of her signs (sic) and there was no tenderness where there should not have been. I felt that she had the classical signs and symptoms relative to the soft tissue injury occurring in the motor car accident described."
Although she told Dr Beetham that she and her husband "were divorcing" he was unaware of the details of the prolonged deterioration in the relationship between herself and her husband and the temporal connection between that state of affairs and the onset of severe symptoms.
No issue of credit arises with respect to the evidence given by the medical practitioners. I have indicated the factual matters which stand in the way of preferring the opinions of Drs Bye, Cull and Beetham to those expressed by Drs Duffy and Southby. Applying the law as set out earlier in these reasons for judgment I find that the plaintiff has failed to discharge the onus she carries of establishing that it is more probable than not that the symptoms and disabilities she has experienced since the end of 1982 were caused by the defendant's tortious conduct.
The plaintiff is entitled to a modest sum by way of damages for the loss of amenities of life arising from the symptoms which were caused by the accident. These symptoms persisted for some 2½ years and caused discomfort but did not seriously disable the plaintiff or prevent her from working. There is no evidence that they interfered with any particular aspect of her non–working life. The plaintiff is not entitled to recover damages for any diminution of her capacity to earn as the evidence does not show that the minimal diminution arising from her symptoms was productive of any loss.
I assess the plaintiff's damages in the sum of $6,000 and there will be judgment for the plaintiff against the defendant for that sum.
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