Moyes v Ensco Australia Pty Ltd - [2022] WASCA 104

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MOYES -v- ENSCO AUSTRALIA PTY LTD [2022] WASCA 104
CORAM:   BUSS P
MURPHY JA
VAUGHAN JA

HEARD:   23 MAY 2022
DELIVERED          :   9 AUGUST 2022
FILE NO/S:   CACV 86 of 2020
BETWEEN:   WILLIAM MOYES
Appellant
AND
ENSCO AUSTRALIA PTY LTD
First Respondent
GRN AUSTRALASIA PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PETRUSA DCJ
Citation: MOYES -v- ENSCO AUSTRALIA PTY LTD [2020] WADC 99
File Number            :   CIV 3813 of 2014

Catchwords:

Negligence - Personal injury - Fall at work - Where plaintiff alleged forceful fall causing nociplastic pain - Where medical evidence based on plaintiff's reports of symptoms and pain - Adverse credibility findings against plaintiff - Where judge found causation of nociplastic pain not established - Where no challenge to the finding of fact that causation had not been established - Whether trial judge nevertheless erred in law when there was 'no evidence' as to the degree of force required to cause nociplastic pain

Procedural fairness - Whether trial judge erred in law in denying procedural fairness to plaintiff on alleged basis that plaintiff had not been cross‑examined on relevant evidence - Rule in Browne v Dunn - Whether judge was bound to accept plaintiff's evidence - Where relevant matters were put to plaintiff and cross‑examined on - No denial of procedural fairness - No error of law

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	B L Nugawela & R A Hinchliffe
First Respondent	:	D R Clyne
Second Respondent	:	D R Clyne

Solicitors:

Appellant	:	Soul Legal (Perth)
First Respondent	:	Moray & Agnew Lawyers
Second Respondent	:	Moray & Agnew Lawyers

Case(s) referred to in decision(s):

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Browne v Dunn (1893) 6 R 67 (HL)
Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150
Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208
Clark v Flanagan [1934] HCA 73; (1934) 52 CLR 416
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Garling v Association to Resource Co-Operative Housing Co-Op Ltd [2001] NSWCA 377
Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Marelic v Comcare (1993) 47 FCR 437
Moyes v ENSCO Australia Pty Ltd [2020] WADC 99
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Thomas v Van Den Yssel (1976) 14 SASR 205
Waite v Alcoa of Australia Ltd [2020] WASCA 1

Table of contents

Introduction and overview

Mr Moyes' alleged injuries in the primary proceedings

The fall alleged by Mr Moyes

The judge's findings as to Mr Moyes' alleged injuries, symptoms and incapacities

Summary of the judge's principal findings

Credibility findings

Findings as to nature of nociplastic pain and its causes

Findings on whether Mr Moyes had nociplastic pain

The judge's observations as to the psychiatric evidence

The judge's summary of her ultimate findings

The appeal

Minute of amended grounds of appeal and orders sought

Appellant's submissions - ground 1

Appellant's submissions - ground 2

Respondents' submissions on appeal

Mr Moyes' case at trial on nociplastic pain

The alleged spinal injuries

The evidence of Dr Majedi and Dr Salmon

Dr Majedi

Dr Salmon

Mr Moyes' closing written submissions at trial

Mr Moyes' closing oral submissions at trial

Disposition

Leave to amend

Ground 1 - disposition

Ground 1(b)

Ground 1(a)

Ground 2 - disposition

Conclusion

JUDGMENT OF THE COURT:

Introduction and overview

This is an appeal by the appellant (Mr Moyes) against the orders of Petrusa DCJ dated 3 July 2020 dismissing his action in the District Court. Written reasons were published in Moyes v ENSCO Australia Pty Ltd (primary decision).[1]
[1] Moyes v ENSCO Australia Pty Ltd [2020] WADC 99 (primary decision).
The primary decision concerned claims by Mr Moyes against the first and second respondents in negligence and for breach of a statutory duty. The appellant sought damages for injuries and loss suffered as a consequence of a fall in a trial that ran over 38 days and in which oral evidence spanned 29 separate days. Mr Moyes was cross‑examined over six days, and the transcript of medical evidence ran to nearly 700 pages.
Mr Moyes alleged that in January 2012, whilst working on an offshore drilling rig and stepping down from a raised platform, he slipped on drilling mud and fell, causing him injury.[2]
[2] Primary decision [1].
The first respondent, ENSCO Australia Pty Ltd (ENSCO) operated the offshore drilling rig. The second respondent, GRN Australasia Pty Ltd (GRN), was a labour hire business which employed the appellant and provided his services to ENSCO.[3]
[3] Primary decision [2] - [3].
Mr Moyes' case in the primary proceedings was that he suffered injuries to his spine, including a fracture of the thoracic spine at T8 and a disc protrusion at T8,[4] and damage to sensorial nerves, causing pain called 'nociplastic' pain. The evidence was that nociplastic pain was caused by sensorial nerve disturbance not evident on scans or imaging, nor detectable by any other medical test.[5] Mr Moyes' case was that because of the injury to his spine and the nociplastic pain, he developed a psychiatric condition. He claimed a total loss of earning capacity.[6]
[4] Mr Moyes' claims in that regard relied on (inter alia) the evidence of Dr Pratsis, an orthopaedic surgeon: primary decision [109], [114] ‑ [115].
[5] Primary decision [231].
[6] Primary decision [8].
ENSCO did not admit liability or quantum. ENSCO contended, in effect, that Mr Moyes was an 'unreliable historian'. ENSCO submitted that the fall did not occur, and that any expert opinion, which to any significant extent relied upon an acceptance of the accuracy and veracity of the history provided by Mr Moyes, should not be accepted.[7]
[7] Primary decision [10] - [11].
At the end of the trial, senior counsel for Mr Moyes conceded that the claim against GRN could not be made out, as the medical assessment of Mr Moyes, in terms of his whole person impairment, did not reach the statutory threshold permitting such a claim.[8] Accordingly, the claim against GRN was dismissed and the primary decision only dealt with the claim against ENSCO.[9]
[8] Pursuant to Workers' Compensation and Injury Management Act 1981 (WA) s 93K(4).
[9] Primary decision [5], [735].
Central to the determination of the issues was Mr Moyes' credibility. He was the only witness to the fall, and all of the medical opinions regarding the development of any condition after his fall relied on Mr Moyes' self-reporting of symptoms and capacities. The judge said in order to accept the medical evidence, she needed to accept that the information provided by Mr Moyes to his doctors and his other health care professionals was truthful, accurate and reliable.[10]
[10] Primary decision [13].
In summary, the judge found that Mr Moyes had a fall at work on 19 January 2012, and that the fall was the result of the negligence of ENSCO. However, the judge found that Mr Moyes was not a credible witness and that he had not established that the fall occurred in the manner and with the consequences which he alleged. Her Honour found, in effect, that Mr Moyes had not proved that the fall had caused the physical and psychiatric injuries he alleged, and dismissed Mr Moyes' action.[11]
[11] Primary decision [730] - [736].
In this appeal, Mr Moyes applied to amend his grounds of appeal at the conclusion of oral argument. For the reasons explained below, we would allow the amendment and dismiss the appeal. In very broad terms, the fundamental contentions raised by Mr Moyes in the appeal (by the amended grounds) are twofold - a 'no evidence' point and a procedural fairness point. Mr Moyes alleged error of law by the judge (1) in finding, in the absence of any evidence, that the force with which Mr Moyes fell did not cause disturbance of the sensorial nerves and associated nociplastic pain, and (2) in so finding when Mr Moyes' evidence on this topic and on the topic of 'medical causation' was not challenged at trial or put to Mr Moyes in cross‑examination.
There is no ground of appeal alleging any error in fact, including any error in finding as a fact that Mr Moyes had not established that he suffered sensorial nerve disturbance and nociplastic pain as a result of the accident.
For reasons more fully explained below, Mr Moyes has not established any error of law as alleged, and the appeal should be dismissed.
In general terms, the first contention cloaks, under the guise of error of law, what, in substance, is an allegation that the judge erred in fact in finding that causation had not been established. The finding that Mr Moyes had not established causation with respect to sensorial nerve disturbance and nociplastic pain was a finding of fact to which the ordinary principles of appellate restraint apply in relation to findings substantially based on credibility. The application of those principles within the conventional framework on an appeal on questions of fact cannot be circumvented by alleging error of law in the manner contended for by Mr Moyes.
Also, Mr Moyes' complaints of pain and his alleged symptoms and incapacities were challenged at trial and were the subject of cross‑examination. There was no error of law by the judge on this account in finding that causation had not been established.

Mr Moyes' alleged injuries in the primary proceedings

In his particulars of damage, Mr Moyes alleged that as a result of ENSCO's negligence, he suffered:[12]
1.Injuries to his thoracic spine.
2.Injuries to his right and left elbows.
3.Injuries to his chest.
4.Injury in the form of sensorial nerve disturbance in his thoracic spine (the nociplastic pain).
5.Severe psychological and psychiatric sequelae, including major depression.
[12] Primary decision [95].
In relation to the alleged injuries to his thoracic spine, Mr Moyes' case was that, as a result of the fall, he suffered:[13]
1.a fracture around the T8 level; and
2.a disc protrusion at T8.
[13] Trial ts 73, 76 - 77, 84 - 85, 88.
With respect to the fourth of the injuries alleged in [15] above - sensorial nerve disturbance - a 'fundamental aspect' of Mr Moyes' claim was that he suffered debilitating pain originating in the area of his thoracic spine which was struck in the fall. Mr Moyes alleged that the pain was such that he was unable to perform many tasks of daily living and was extremely limited in what he could do and the period of time for which he could perform any tasks.[14] The judge observed:[15]
[221]It was submitted that, at the time of trial, Mr Moyes was severely disabled and dysfunctional. He required at least 18 hours assistance per week with cooking, cleaning, washing, caring for his animals, paperwork, shopping and attending medical appointments. He engaged in very little constructive activity - seeking out, buying, repairing and occasionally selling chainsaws, some very limited gardening and occasional feeding of horses. Any activity he undertook was, of necessity, facilitated by medication, which at times, exceeded the recommended dose. These periods of activity were only of about 20 ‑ 30 minutes duration and were followed by sustained periods of incapacity, the length of which is relative to the level of activity.
…
[224]The restrictions brought on by Mr Moyes' pain are said to have given rise to psychosocial issues which in turn, have affected his psychological wellbeing. Two psychiatrists who examined Mr Moyes agreed he now suffers from a major depressive disorder attributable to the existence of pain and the consequential limits it places on his capacities.
[14] Primary decision [220].
[15] Primary decision [221], [224].

The fall alleged by Mr Moyes

The fall was not observed by anyone, and the only direct evidence as to the nature of the fall came from Mr Moyes.[16] Mr Moyes never accurately recalled the date of the fall.[17] The judge's observations as to Mr Moyes' evidence included:[18]
[16] Primary decision [14].
[17] Primary decision [15].
[18] Primary decision [16] - [18], [23] - [26]. See also primary decision [67] - [70].
[16]Regardless of the date, Mr Moyes' evidence was that he was about half way through his 12 hour shift when he was asked to assist Mr Roger Donkersley, the derrickman.
[17]Mr Moyes had been working as a floorman on the drill floor with the drill crew when he was instructed to go to the sack or mud‑mixing room to assist Mr Donkersley. He was instructed to assist Mr Donkersley put chemicals into drilling mud. The chemical in this instance is commonly known as drispac.
[18]Mr Moyes was familiar with the process. …
…
[23]Mr Moyes' evidence was that in the course of pouring the bags of drispac into the hopper, drispac could, and would, spill onto the grated platform, or 'catwalk' as he called it, and through to the deck below. He did not specifically say this happened on the occasion he fell, but rather, that it was an inevitable and usual consequence of the slam dunk method.
[24]Once all the bags had been emptied, Mr Donkersley left the area leaving Mr Moyes to clean up. He washed drispac through the funnel, turned off the hose and then, he stepped down to the deck floor from the grated platform to access a valve which closed the funnel to the hopper. He said that as he stepped off the grated platform, his right foot slipped from under him, causing him to fall. His evidence was that he fell heavily on a slight angle clipping his elbows and head on the grated platform. In the process, he also struck the middle of his back, behind his chest, on the metal edge of the raised grated platform.
[25]Mr Moyes claimed, in evidence that, at the time he fell, he heard 'a loud snapping sound'. He alternatively described this as 'a crack'.
[26]In any event, Mr Moyes said that he was left half suspended on the grated platform, with his legs in what he said was 'the muck'. (citations omitted)
There was a contemporaneous note of a consultation with the oil rig 'medic' on 19 January 2012, and a further daily log medical record dated 20 January 2012. The judge's reference to this evidence included:[19]
[31]… The entry [on 19 January 2012] reads as follows:
'Fall at work. Slipped in polymer … Mild abrasion to mid back and minor cuts to (L) elbow. ... Nil malalignment of spinal process, nil parathesia in limbs. (L) elbow cleaned and dressed. IP declined analgesics. RTW - light duties. r/v tomorrow unless worsening today. …
Declined analgesics. Dressed (L) elbow. Injury report filed.'
[32]Consistent with this note calling for review 'tomorrow', the daily log medical record also has an entry for 20 January 2012. It records that at 12:00 hours, Mr Moyes again presented to the medic. The entry for this day reads as follows:
'r/v of above injury. IP reports to feeling 'much better'. 'Just a little bit stiff over the spot on my back'. 'elbow is OK'.
Nil [treatment]. Analgesics offered.'
(footnotes omitted)
[19] Primary decision [31] - [32].
The judge considered in detail Mr Moyes' evidence as to the fall and the contemporaneous documents and other evidence, and concluded:[20]
[66]The only findings I am able to make about the nature of the fall are that Mr Moyes fell when stepping from the raised grated platform onto the deck floor below and that he fell such that, at some point during, or at the end of, his fall, his mid-back and left elbow each contacted one of the metal surfaces in the area. I am not otherwise satisfied that he landed forcefully on his back, as he now alleges.
[20] Primary decision [66].
Her Honour then gave detailed reasons for that conclusion which included findings to the effect that Mr Moyes' account was inconsistent with other evidence, including his own testimony, that aspects of his evidence were inherently improbable, and that her Honour had doubts as to his honesty in respect of certain matters.[21]
[21] Primary decision [72] - [93].

The judge's findings as to Mr Moyes' alleged injuries, symptoms and incapacities

Summary of the judge's principal findings

The judge made findings to the effect that:
1.The fall did not cause any general bruising or swelling.[22]
2.The fall did not cause any T8 fracture as alleged by Mr Moyes.[23]
3.The fall did not cause a prolapsed disc as alleged by Mr Moyes.[24]
4.The radiological evidence did not support any injury of any significant nature to the thoracic spine necessitating orthopaedic intervention.[25]
5.The history of the progression of Mr Moye's condition in the early stages was not consistent with the natural progression of this type of sensorial nerve disturbance causing a pain condition as referred to by the relevant medical witnesses (Dr Majedi and Dr Salmon).[26]
6.Mr Moyes had not established that he suffered a sensorial disturbance of nerves causing nociplastic pain - the judge was not satisfied that Mr Moyes had a physical basis for his claimed nociplastic pain.[27]
7.Mr Moyes had not established that he developed a psychiatric condition from any injury resulting from his fall, including nociplastic pain. He had not proved he had a compensable psychiatric condition.[28]
[22] Primary decision [91], [143], [150], [219].
[23] Primary decision [136], [219], [307], [732].
[24] Primary decision [138] - [139], [219], [290], [307], [732].
[25] Primary decision [140].
[26] Primary decision [301].
[27] Primary decision [732] - [733].
[28] Primary decision [733].
Accordingly, the primary judge concluded that 'it does not follow that any present psychiatric illness is causally linked to Mr Moyes' fall'.[29]

Credibility findings

[29] Primary decision [734].

Following an extensive and thorough review of the evidence, her Honour held:[30]
I am satisfied that Mr Moyes was not truthful, accurate and reliable about the forceful nature of his fall, and the injury, pain and limitations arising from that fall, and about many of the other matters as set out above. I cannot accept his evidence.
[30] Primary decision [731].
The matters to which her Honour had regard in forming her assessment of Mr Moyes' credibility included the following:
1.Mr Moyes used dramatic language, consistent with medical evidence that he had an 'inclination to catastrophise', which suggested the need to treat his answers with care.[31]
[31] Primary decision [408] - [411].
2.Mr Moyes' long term use of pain medication.[32]
[32] Primary decision [412].
3.During his time in prison for cannabis cultivation, Mr Moyes portrayed himself in a sympathetic light to gain perceived advantage, including going to considerable lengths to persuade the prison authorities to give him access to Endone, a highly addictive drug used to treat severe pain.[33]
[33] Primary decision [413] - [421].
4.Mr Moyes was addicted to Endone before going into custody in 2006,[34] and wrongly asserted that his medical practitioner had fabricated his medical records to justify the prescribing of Endone.[35]
[34] Primary decision [425].
[35] Primary decision [422].
5.Mr Moyes gave evidence which was inaccurate, inconsistent, and at times clearly untruthful. There were many examples of this.[36]
6.Mr Moyes, on his own assessment of his condition, was ready, willing and able to perform work on an oil rig between 31 January 2012 and 2 March 2012. This was inconsistent with the significant injury he later purported to have suffered.[37] Mr Moyes was also active as president of a society dedicated to saving a historical building in Bridgetown, in which capacity he was 'well and truly active' by August 2012 and continued to be so until November 2013.[38]
7.Mr Moyes' conduct from May 2013 to April 2014, during which he took trips out of his home town, could not be explained in light of his claimed condition.[39]
8.Video footage of Mr Moyes, whilst under surveillance in May 2015 to August 2015, showed Mr Moyes acting inconsistently with his representations to medical professionals as a person severely incapacitated with little meaningful activity in his life.[40]
9.In the period 1 December 2016 to 31 March 2017, there was evidence, including from his telephone records and bank records, which was inconsistent with his claimed social isolation.[41]
10.Mr Moyes acquired and stored at his premises a vast quantity of items and material from January 2012, which was inconsistent with his claims of inactivity.[42] This included the purchase of between 150 and 250 chainsaws.[43]
11.Mr Moyes' activities after his fall were inconsistent with his claims of inactivity. His activities included collecting, repairing and selling chainsaws and chainsaw parts, collecting mechanical tools, walks in the forest, cooking for and visiting an elderly lady, agisting horses, the collection and sale of firewood, gardening activities, welding, erecting shelving, spraying weeds on his 4 acres of land, receiving substantial sums of money from undisclosed sources, and arranging to access money from his superannuation funds on multiple occasions.[44]
12.The judge was not persuaded that evidence, given by lay witnesses called by Mr Moyes, as to the way that Mr Moyes presented himself to them, militated against a finding that the pain and incapacities asserted by Mr Moyes were not genuine.[45]

Findings as to nature of nociplastic pain and its causes

[36] Primary decision [427] - [486].

[37] Primary decision [487].

[38] Primary decision [489].

[39] Primary decision [496].

[40] Primary decision [500] - [532].

[41] Primary decision [533] - [539].

[42] Primary decision [540] - [547].

[43] Primary decision [544].

[44] Primary decision [551] - [558].

[45] Primary decision [559] - [570].

Her Honour considered the medical evidence as to pain described as 'nociplastic pain' - also referred to sometimes as 'neuropathic' pain. The medical evidence distinguished between nociplastic (or neuropathic) pain, on the one hand, and 'nociceptive' pain, on the other. Her Honour found that nociplastic pain involved a sensorial disturbance of the functioning of nerves superficially under soft tissues which could not be demonstrated by any scan or any known medical test. The sensorial disturbance of the functioning of the nerves superficially under the soft tissue resulted from trauma.[46] Her Honour referred to medical evidence led by Mr Moyes which described sensorial disturbance resulting in nociplastic or neuropathic pain (as opposed to nociceptive pain) in the following way:[47]
[231]… It was described by Dr Salmon in this way:
'… nerve sensitivity pain is not due to failure of healing, it's due to the nervous system moving into a - a permanent or semi‑permanent state of hyper-reactiveness, which is due to real changes in the physiology, but it doesn't show up on scans …'
…
[232]Dr Majedi, whilst agreeing that there was no scan which indicated sensory nerve function, described sensorial disturbance resulting in neuropathic or nociplastic pain in this way [ts 1942]:
'… [N]ociceptive [pain] means when I cut myself, that's nociception. And neuropathic is when the - the cut is healed but I'm still getting tingling going up my arm. That division [between nociceptive pain and neuropathic pain] … was very artificial, because in reality you get all aspects of pain simultaneously. And also nociception obviously is a signal to the brain that something has happened, something is dangerously - is terribly wrong. Neuropathic is the nerve over‑amplification, however, the brain interprets that as something terribly wrong as well. They're trying to combine these two together because the evolution in the science of pain has shown that you can actually damage your body from nerve - poor nerve signalling as well. And there are conditions that are better understood in that sphere, such as neuropathic pain syndrome where it actually describes this phenomenon [of] where the nerve themselves - the nerve signals themselves are causing damage to the tissue.' (emphasis added)
[46] Primary decision [231] - [232].
[47] Primary decision [231] - [232]. See also her Honour's reference to the evidence of Dr Pratis at primary decision [149].
Her Honour further observed:[48]
[233]When sensorial disturbance occurs as set out above …, an organic process is initiated to create enough sensory amplification to encourage an individual to rest, so that further damage is not done [ts 1943 ‑ 1944]. Fear avoidance then comes into play. This is a well‑established and understood neurobiological and psychological behaviour we all have. We avoid painful situations to protect ourselves. However, the fear avoidance can become maladaptive when psychosocial factors come into play [ts 1945].
[48] Primary decision [233].
In relation to the causes of nociplastic or neuropathic pain, the judge referred to the evidence of Dr Majedi and Dr Salmon, pain specialists called by Mr Moyes, and noted the importance of evidence of trauma associated with a significant degree of physical force in the diagnosis of such pain. Her Honour said:[49]
[49] Primary decision [280] - [289].
[280]The diagnostic imagery and reports thereof were important to each of Dr Majedi and Dr Salmon who, in particular, considered the existence of the disc protrusion to be of relevance in each of their diagnoses and assessment of Mr Moyes. That said, it is clear that Dr Majedi had the MRI itself and the radiological report from the X‑ray. Dr Salmon did not have any of the radiological imagery and appears to have only been aware of a report of the CT scan.[50]
[50] The CT scan showed evidence of a disc protrusion at T7/T8: primary decision [105].
[281]The existence of this physical injury of a disc protrusion was, in their minds, indicative of trauma capable of sensitising the nerves. This is therefore of fundamental importance to the respective opinions of Dr Majedi and Dr Salmon and is the key to understanding their evidence.
[282]Dr Salmon attributed Mr Moyes' nociplastic pain to trauma because of the existence of the T7/T8 disc protrusion as set out in the CT scan report. He acknowledged that such an injury may develop spontaneously, but he attributed it to the fall because the complaint of pain was in the area of the disc protrusion. Consistent with trauma to this area, he expected the soft tissue damage to then be healed, but which, nonetheless, could have resulted in the nervous system moving into, or being left with, a permanent or semi-permanent state of hyper reactiveness.
[283]In determining the cause of any sensorial disturbance in the functioning of the nerves, Dr Majedi looked for a mechanism involving high force over a small area with soft tissue components. In this regard he said:
'the mechanism of injury is very important in the clinical diagnosis and in my mind at the time and also with all the evidence present is consistent with a large amount of force over short - over a small area was applied to the spine and the force has to go somewhere so either there is a breakage or there's a disc protrusion or both, and in more sinister scenarios the spinal cord itself may get transected … Every part of the spine is vulnerable but the force required to do this is a lot more, say, than cervical spine and lumbar spine.'
[284]Dr Majedi went on to say that everything about the injuries reported to have been suffered by Mr Moyes told him something about the force involved, which in turn could be productive of a form of crushing of soft tissues which could have interfered, or potentially have interfered, with the sensorial function of the nerves superficially under soft tissues. In this way, there was an amplification of the sensations around that area with the nerves themselves being highly sensitised.
[285]Importantly, Dr Majedi expressed his opinion by reason of the degree of force indicated by each of the injuries he believed Mr Moyes had suffered during the fall. Insofar as the disc protrusion is concerned, he said:
'As a general rule, a mid-thoracic disc protrusion takes a lot of force. And one of the things in a clinical practice, if I come across anybody with a clinical finding or any image finding of a disc protrusion in thoracic area, I explore what caused it and - and the force of that nature will generally do some form of fracture somewhere. The fractures, however, will not [sic] heal within three months.
… And they don't necessarily leave any residual radiological elements after that.'
[286]Insofar as the suspected fracture of T8 is concerned, Dr Majedi said:
'The relevance of a fracture in the spine is relevant. Anywhere in the spine a fracture is relevant, and the fact that it's at T8 indicates the probable point of impact, so there is a relevance there. Also the fact that is - mid‑thoracic, to me as a clinician indicates the probable force that's required to do that.
… If there was no fracture, then in my mind it's - the force is much less, so the presence of fracture, in my mind, gives me an indication of the degree of force.'
[287]Dr Majedi therefore made it clear that 'a lot of force' is required to cause a disc protrusion in the mid-thoracic area to give rise to hypersensitivity in the sensorial nerves. For a mid-thoracic fracture, he was not so clear, but to him, there was an indication of the 'probable force … required' and if the fall did not result in a fracture of the T8 vertebra, then its force was necessarily 'much less'.
[288]Dr Salmon was not specifically asked about the required degree of force. However, he seems to have agreed with Dr Majedi because he attributed the T7/T8 disc protrusion to the fall and with the soft tissues having then healed, this left the nervous system moving into a state of hyper reactiveness as set out above at [282].
[289]In addition to the degree of force, Dr Majedi gave evidence about the usual progression of nociplastic pain conditions. In this regard he said:
'If there was a disc protrusion that - in - in that instance, the pain should have been immediate pain, I mean a force of that nature, falling onto one's back, there should be pain immediately.
… The pain should be ongoing from there, it may take a few days to ramp up, it may not [be] that clear at that point in time, but it does ramp up. Usually - again, I don't have publication evidence on this, but clinical experience, patients usually declare that there was a [sic] incident, they didn't feel much, next - over the next few days or a week pain ramped up and got worse.' (emphasis added)

Findings on whether Mr Moyes had nociplastic pain

Having considered the expert evidence adduced by Mr Moyes, her Honour concluded that Mr Moyes had not established that he had developed nociplastic pain as a result of the injury. Her Honour said:[51]
[51] Primary decision [290], [299] - [307].
[290]Given this evidence from Dr Majedi, it would be reasonable to find that the usual progression of nociplastic pain for Mr Moyes would have required a fall with a lot of force, with immediate pain or at least, pain having ramped up and gotten worse over the next few days or a week after the fall. … I have found above at [94] and [139] both that the fall was not forceful and that the disc protrusion was not caused by the fall. … There was then no complaint of pain. … Rather than any pain becoming worse, he felt much better on review on the day after the fall. … Whatever pain Mr Moyes suffered from 19 January 2012, it did not ramp up even over the next few days or a week as set out above at [289]. The first indication of the back injury causing any pain was the email from Mr Moyes almost one month after the fall and dated 13 February 2012 to Mr Paramor saying 'for the last couple of days' his back 'has been quite painful', as set out above at [100]. This does not fit with Dr Majedi's timetable requirement for the onset of pain after a fall with a lot of force.
…
[299]Both Dr Majedi and Dr Salmon relied upon a history from Mr Moyes complaining of pain and presenting with apparent physical manifestations of pain which were not explained by any physical injuries shown in the radiological materials or by any other demonstratable means apart from the history offered from Mr Moyes. He gave a history that treatment had failed to improve his situation. He reported psychosocial factors consistent with a person suffering from a pain condition. Both Dr Majedi and Dr Salmon accepted Mr Moyes' complaints of pain and made a diagnosis of nociplastic pain to explain that pain.
[300]The evidence outlined above at [285] - [288] makes clear that a lot of force needs to be applied to the sensorial nerves to cause a nociplastic pain condition. There is no evidence of external injury to Mr Moyes' back consistent with a fall involving a lot of force. When first seen by the rig medic, he had what the medic described as a 'mild abrasion to mid back'. There was then no evidence of any external bruising or swelling. No treating doctor was asked about bruising, but as a matter of commonsense and life experience, some bruising consistent with a fall involving a lot of force could have been expected. Bruising was not described by the person who apparently reported swelling as set out above at [70]. Its absence in the context of the evidence about Mr Moyes' behaviour in the 4 ‑ 6 week period after the fall is inconsistent with a fall involving a lot of force. In the absence of other evidence of injury, the presence of only an abrasion referred to in the medic's notes is not consistent with a forceful fall.
[301]Further, the history of the progression of Mr Moyes' condition in the early stages is not consistent with the natural progression of this type of sensorial nerve disturbance causing a pain condition referred to by Dr Majedi and Dr Salmon. Mr Moyes did not immediately report ongoing and increasing pain from the time of the fall, or even allowing for it to 'ramp up' as Dr Majedi put it, 'over the next few days or a week', as set out above at [289]. There was no report of pain until 13 February 2012 and then, it had only been over the 'last couple of days'.
[302]Then, by his own assessment of his condition in the six week period after the fall, Mr Moyes was physically capable of fulfilling the duties of a roustabout and a floorman on an oil rig. Both these positions involve physically demanding work. In this regard, Mr Moyes was actively seeking work following his return to Perth on 26 January 2012.
[303]On 31 January 2012, Mr Moyes accepted a position as a roustabout on the Diamond America. By his own assessment, he could undertake this work, which in the event, did not eventuate.
[304]Further, apart from the initial reports to the rig medic, Mr Moyes made no complaint of pain until 13 February 2012, being 25 days after the fall. Then the complaint was only that in the[52]
'last couple of days it has been quite painful.'
[305]Notwithstanding this complaint, Mr Moyes continued to request work and on 2 March 2012, being some 43 days after his fall, he informed GRN he was available to take up an urgent position as a floorman on a jack-up rig.
[306]Neither Dr Majedi nor Dr Salmon were aware of these expressions of work availability and the consequent delay in the onset of pain in Mr Moyes' symptoms. In discussing the progression of a pain condition, Dr Majedi was asked about pain taking a month for symptoms to manifest and he said this:[53]
'A month is - is an unusually long time, however, on the other side, that soft tissue injuries take a bit longer to evolve in their progression. So that is - so they - usually patients that have soft tissue injuries, there's some delay between the actual incident and the presentation or increase in pain.'
Dr Majedi was not pressed to express any opinion about the time taken for Mr Moyes' pain to manifest, but his view of this is clear, as set out above at [289].
[307]The difficulty which then arises is that I have made findings inconsistent with the factual foundation for the opinions of Dr Majedi and Dr Salmon. On my findings, the fall was not forceful and it did not cause either a fracture at T8 or a disc protrusion/bulge. These findings therefore detract from any opinion that Mr Moyes suffers nociplastic pain. The matters which give rise to nociplastic pain, as set out above at [290], do not exist in this case. (emphasis added)

The judge's observations as to the psychiatric evidence

[52] Exhibit 3.8, page 133.

[53] Trial ts 1,962.

Mr Moyes called expert psychiatric opinion evidence from Dr Tannenbaum, from whom he was seeking treatment. The respondents called Dr Terace. Both were eminently qualified.[54]
[54] Primary decision [572] - [573].
The judge observed that both experts:[55]
agreed that the information provided by Mr Moyes about his personal history, fall, injuries and the symptoms arising therefrom and capacities thereafter, were all fundamental to the formulation of their respective opinions. A cornerstone of this information was pain; both its existence and its corresponding effects on Mr Moyes' capacities in life. Pain was therefore intrinsic to the diagnosis that Mr Moyes' psychiatric condition both existed and persisted at whatever level of severity, and whether primary or secondary. (emphasis added) (citations omitted)
[55] Primary decision [583].
In their reports, both psychiatrists provided opinions to the effect that Mr Moyes was suffering a major depressive disorder, albeit that they disagreed as to its severity. Dr Tannenbaum regarded it as involving an extreme level of depression and anxiety, whilst Dr Terace considered that it was of moderate severity in December 2014, and mild to moderate severity in August 2017.[56]
[56] Primary decision [572], [576], [580] - [581], [619].
Dr Tannenbaum regarded the depression as 'primary' as, in his opinion, it was directly related to the accident and commenced as soon as one could expect.[57] Dr Terace did not regard the depression as 'primary' because it did not evidence itself within weeks of the fall.[58]
[57] Primary decision [577].
[58] Primary decision [701].
The judge preferred the evidence of Dr Terace on this issue and found that Mr Moyes' depression was not primary.[59]
[59] Primary decision [702].
In relation to Dr Tannenbaum's evidence more generally, the judge referred to the 'approach he took of accepting, apparently without question, the information provided by Mr Moyes [as] truthful and accurate. … However … [t]here were significant factual matters Dr Tannenbaum accepted which were not supported, or were contradicted, by other evidence and materials …'.[60] The judge referred to a number of factual discrepancies in Mr Moyes' accounts given to Dr Tannenbaum.[61] Her Honour also referred to the effect of misinformation on Dr Tannenbaum's opinion.[62] The judge concluded, and gave detailed reasons for concluding, that:[63]
I have significant reservations about a number of aspects of Dr Tannenbaum's opinion in light of all the material before me, including his evidence at trial.
[60] Primary decision [624] - [625].
[61] Primary decision [626] - [655].
[62] Primary decision [656] - [661].
[63] Primary decision [662] - [680].
Her Honour then said:[64]
When all of these factors are considered together, and given my adverse findings as to Mr Moyes' credibility, I cannot accept the opinion of Dr Tannenbaum to the extent that any depression Mr Moyes suffers is caused by his fall and consequential physical injury therefrom and its associated pain.
[64] Primary decision [681].
In relation to Dr Terace's evidence more generally, the judge observed that in his first report, Dr Terace indicated that 'abnormal illness behaviour' was suggested in Mr Moyes' case, but that he had insufficient evidence at that point to be definitive that it existed.[65] Conscious 'abnormal illness behaviour' was described as 'malingering'.[66] Abnormal illness behaviour could also be of the 'unconscious kind'.[67]
[65] Primary decision [703].
[66] Primary decision [705].
[67] Primary decision [725].
At trial, Dr Terace was cross‑examined to the effect that by raising abnormal illness behaviour, Dr Terace demonstrated bias, and counsel for Mr Moyes submitted that his evidence on that matter was not properly before the court and, in effect, it had not been pleaded or squarely put to Mr Moyes by ENSCO.[68] Her Honour rejected that submission made on behalf of Mr Moyes.[69] Whilst noting that Dr Terace had 'backed down' from his pre‑trial view that Mr Moyes was a malingerer, her Honour said:[70]
[727]… I ultimately take from his evidence that the determination of a patient's credibility and reliability is central to a determination of a psychiatric condition, particularly with respect to
'his true impairment and disability from a physical perspective'
as noted by Dr Terace. In this case, the accuracy of Mr Moyes' subjective complaints of pain and the limitations he identified impact on any proper evaluation of his condition and the medical opinions given. Certainly, Dr Terace identified anomalous behaviours in Mr Moyes' presentation and history as compared to what can be seen in the surveillance footage. Further, the diagnosis of the doctors in physical medicine that Mr Moyes has not suffered any ongoing physical injury from his fall has, in turn, raised considerations of abnormal illness behaviour. Further still, there is a plethora of evidence that Mr Moyes has not provided full information regarding his history and that he has also provided incorrect information about that history.

The judge's summary of her ultimate findings

[68] Primary decision [705].

[69] Primary decision [706] - [710].

[70] Primary decision [727].

The judge made the following ultimate findings by way of summary:[71]
[730]The diagnosis of depression relies upon the veracity of the patient's history, including the occurrence of injury, any ongoing physical symptoms and any psychological symptoms. In this case, the pain management specialists and the psychiatrists have been informed of factual matters by Mr Moyes. By and large, the medicos have accepted his information. However, unlike the medicos, I am required to determine the truth of the information provided by Mr Moyes in an adversarial setting, on the balance of probabilities.
[731]I am satisfied that Mr Moyes was not truthful, accurate and reliable about the forceful nature of his fall, and the injury, pain and limitations arising from that fall, and about many of the other matters as set out above. I cannot accept his evidence.
[732]I am not satisfied that Mr Moyes has suffered a fracture of T8. Nor has he suffered a prolapsed disc of T7/T8. Further, he has not suffered a sensorial disturbance of nerves.
[733]I cannot be satisfied that Mr Moyes has a physical basis for his claimed nociplastic pain. Further, I cannot be satisfied that he developed a psychiatric condition from any injury resulting from his fall, including nociplastic pain. It follows that Mr Moyes has not proved a compensable psychiatric condition.
[734]Even if Mr Moyes was predisposed to the development of a psychiatric condition by reason of some prior chronic anxiety disorder, in accordance with his history as set out above at [692], and that he suffered a mood disturbance within the realm of normal human experience at some unknown time after he last ceased looking for work in March 2012, it does not follow that any present psychiatric illness is causally linked to Mr Moyes' fall.
[71] Primary decision [730] - [734].

The appeal

Mr Moyes filed his appellant's case on 24 March 2021. A substituted appellant's case was filed on 17 May 2021. At the conclusion of the oral hearing on 23 May 2022, counsel for Mr Moyes foreshadowed an application to amend the grounds of appeal. He was given leave to make such an application.
Mr Moyes' application to amend the grounds of appeal was filed on 25 May 2022. The appellant's minute of amended grounds is set out in [43] below. The underlining and deletions show the proposed amendments to the grounds of appeal.
Four observations may be made at the outset as to the appellant's case:
1.In neither the substituted appellant's case nor in the proposed amended grounds of appeal does Mr Moyes allege that the judge made any error of fact. In particular, it is not alleged that the judge erred in fact in finding that Mr Moyes had not established that he suffered sensorial nerve disturbance associated with nociplastic pain as a result of the fall.[72]
2.Presumably because there is no challenge to any of the findings of fact, the documentary evidence before the primary judge is not included as part of the appeal papers in the Green Appeal Book. In particular, the reports of the medical practitioners (including Dr Majedi, Dr Salmon and Dr Pratsis) are not included in the materials before the court. Counsel for Mr Moyes made no reference to the reports - save insofar as their contents may be gleaned from parts of the transcript of oral evidence or passages of the judgment to which counsel referred. (At the appeal hearing the court was referred to around half a dozen pages of transcript of the medical evidence, which comprised nearly 700 pages.)
3.In the course of oral submissions, counsel for Mr Moyes made a number of assertions about Mr Moyes' case in opening and closing submissions,[73] albeit that all the documents were not (as they should have been if relevant) included in the Blue Appeal Book. The court foreshadowed that it may need to consider those documents in light of the submissions of counsel for Mr Moyes at the hearing of the appeal.[74]
4.As noted in [7] above, at the conclusion of the trial, counsel for Mr Moyes conceded that the claim against the second respondent, GRN, should be dismissed. Although the appeal was against the dismissal of the action against both respondents, counsel for Mr Moyes at the hearing of the appeal said that the appeal was only against the first respondent.[75]

Minute of amended grounds of appeal and orders sought

[72] Counsel accepted this in oral submissions: appeal ts 43.7.

[73] Appeal ts 57 - 58, 61.

[74] Appeal ts 82 - 83.

[75] Appeal ts 31.

Mr Moyes' minute of amended grounds of appeal was in the following terms:
Ground 1
The Learned Trial Judge erred in law in finding (at [219]) that [Mr Moyes] did not fall with significant or sufficient force such as to cause soft tissue injury to the nerves in circumstances where:
(a)[Mr Moyes'] evidence on this topic was not challenged at trial; and
(b)further or alternatively, there was no evidence as to the amount of force necessary to cause soft tissue injury to the nerves asserted by [Mr Moyes]. ~~the Learned Judge had misunderstood the evidence of the plain specialists.~~
Ground 2
The Learned Trial Judge erred in law in denying [Mr Moyes] procedural fairness in making findings adverse to him on the topic of medical causation in circumstances where his Evidence on the topic was not the subject of cross‑examination
Particulars
a.[Mr Moyes'] evidence that he had suffered back pain and adverse symptomology from the time of the work accident was not challenged in cross[‑]examination;
b.it was not suggested to [Mr Moyes] in cross[-]examination that he had feigned his reported symptoms in relation to the distribution of pain and symptoms in the front and back of his spine;
c.it was not put to [Mr Moyes] in cross[-]examination that he had exaggerated his symptoms to medical practitioners in relation to the distribution of pain and symptoms in the front and back of his spine;
d.[Mr Moyes'] evidence (reported contemporaneously) that he had heard a 'cracking' sound when he fell and hit his back was not challenged in cross‑examination;
e.there was no evidence about the nature of the sounds sufficient to be heard or felt by [Mr Moyes];
f.it was unfair and wrong to make the finding that there was no cracking sound, and then to use that to reject the evidence of injury even to the nerves. (strikethrough in original, underlining indicates insertions in original except where headings are underlined (insertions shown as red text in original))
In his appellant's case, Mr Moyes sought orders that the decision of Petrusa DCJ be set aside, and that judgment be entered for Mr Moyes against the respondents for damages to be assessed.[76] At the hearing of the appeal, counsel referred to this as being 'a bit ambitious', and said that if ground 1 were made out, there would need to be a retrial.[77]

Appellant's submissions - ground 1

[76] WB 15.

[77] Appeal ts 44.

Mr Moyes filed written submissions in relation to original ground 1. They did not, in terms, identify the nature of the alleged error of law, and they do not lend themselves to any convenient summary. Mr Moyes directed attention to the judge's findings (1) that there was a fall, and that the first respondent breached its duty of care,[78] and (2) as to the nature of nociplastic (or neuropathic) pain based on the evidence of Dr Majedi and Dr Salmon. In his written submissions, Mr Moyes further submitted, inter alia:[79]
[78] Appellant's written submissions, pars 1, 3; WB 7.
[79] Appellant's written submissions, pars 5 - 6, 9 - 15; WB 7 - 11.
5.It is noted that the inability (at [66]) to positively find that the appellant landed 'forcefully' on his back, is just that - an inability to make such a positive finding on the balance of probabilities - and was not a solemn finding that that [sic] such a fall, or a fall with some force applied to his back, did not in fact happen. This therefore left open a range of possibilities as to the extent of the forces exerted on the Appellant falling over a height of 452 mm and hitting his back and elbow on metal surfaces, and whether those forces are capable of causing some initialising injury to body parts … or injury to sensory nerves, whether through compressive forces, or spinal flexion.
6.At [284] the Learned Trial Judge correctly noted Dr Majedi's evidence was that the fall could have crushed the sensory superficial nerves under the soft tissues - this had nothing to do with the injury to the thoracic disc itself (which required significant force) or even simple osteophyte snapping (per Dr McCormick). The question was not whether the force was strong enough to fracture the vertebra or cause a disc prolapse or even aggravate an symptomatic disc [sic], but whether it could and did cause injury to superficial sensory nerves. Dr Pratsis thought that this was in fact the mechanism for the neuropathic pain ([149], [151] and T 1550).
…
9.The Appellant had a past history of Endone reliance which stopped in 2006, but was again prescribed this after the fall ([240]). The Appellant had returned to work and had a significant income earning history from 2007 (Exhibit 1, page 629-640), until his fall. However, this and many other factors were not put to the Appellant, Dr Majedi or Dr Salmon ([277], [278]) …
10.Correctly understood, Dr Majedi's opinion was that crushing soft tissues could have affected the superficial sensory nerves, and in this way cause neuropathic amplification ([284]). This was separate from other pathology such as forceful disc protrusions or spinal injury ([283], [287], [290], [300], [307]). The Learned Trial Judge misunderstood Dr Majedi's evidence in this respect and seemed to (wrongly) require a threshold of some (unarticulated) significant force such as to cause a discal injury or rupture or spinal cord transection, when all that was required was a soft tissue injury which disturbed the superficial sensorial nerves in that area.
11.As a result of this misunderstanding, the Learned Trial Judge also discounted Dr Salmon's objective clinical neurological testing at [295] ‑ [297], which Dr Salmon thought was highly significant. At any rate, none of these matters were put to the Appellant or Dr Salmon, and there was no evidence that the Appellant knew of the unique frontal distribution of neuropathic pain. The Learned Trial Judge's reasoning appeared to be that the Appellant did not hit his back, with, (according to her Honour), sufficient force to cause disc prolapse or vertebral fracture, therefore he suffered no injury whatsoever, therefore any positive response to neurological testing must have been feigned.
12.In fact, the evidence of Dr Majedi at [306] was also consistent with a soft tissue injury-caused neuropathic pain condition, to take longer than a month to manifest, as well as the Appellant's use of Zydol - [290].
13.The Learned Trial Judge's errors (re: forces required and/or misunderstanding the pain specialists' opinions) is further reflected in her Honour's failure to consider soft [tissue] injury to the superficial sensorial nerves at [307] as the aetiology for the Appellant's neuropathic pain (ie even accepting the findings that there was no T8 fracture or no disc protrusion).
14.The layperson's perception of the disproportion between size of stimulus (force) and disproportionate response (neuropathic injury) is well-known in personal injuries cases - Shorey v PT Limited [2003] HCA 27.
15.No party led scientific evidence as to the nature of forces likely to be exerted upon or within the appellant's thoracic spine, nor the sufficiency of biomechanical forces that would be physically sufficient to cause injury to soft tissues, nerves or nerve pathways. It is not known what the Learned Trial Judge's use of the word 'forcefully' means or entails and what other requisite gradations of force that the Court had in mind, as the cross examination of the pain experts steered away from these areas. An absence of soft tissue swelling was not determinative of the requisite force, as swelling can be absent even when the vertebra is fractured as noted by Dr McCormick ([134]) - this was not simply a matter of 'common sense and life experience' ([300]). The parties simply never pleaded or ran the litigation that way, and there was no exchange of any such scientific or biomedical evidence touching upon the issue, and no relevant cross‑examination of the pain management specialists. (emphasis added)
At the hearing of the appeal, counsel for Mr Moyes also made oral submissions, including those referred to below, prior to his application to amend the grounds.
In oral submissions at the appeal hearing, counsel for Mr Moyes submitted that senior counsel for Mr Moyes had, in closing submissions, 'abandoned' Mr Moyes' allegations that his fall had caused a fracture or suspected fracture and/or disc protrusion at T8, and that his case on nociplastic pain was 'independent' of these issues.[80]
[80] Appeal ts 58.
In his oral submissions, counsel for Mr Moyes submitted, in effect, that ground 1 was intended to raise a 'no evidence' point in relation to error of law. He agreed that the ground should be understood as alleging that the judge:[81]
erred in law in finding at [219] that [Mr Moyes] did not fall with significant or sufficient force such as to cause soft tissue injury to the nerves in circumstances where there was no evidence as to the amount of force necessary to cause the soft tissue injury to the nerves as asserted by [Mr Moyes and in that regard there was] no evidence from any of the medical practitioners at trial as to the degree of force required to give rise to a soft tissue injury to the nerves.
[81] Appeal ts 41, 48; see also appeal ts 34.5, 36.1.
Counsel for Mr Moyes also submitted that ground 1 raised a Browne v Dunn point,[82] and contended in that regard that 'the judge was bound to accept [Mr Moyes'] evidence on the topic of the degree of force with which he fell … because … that issue was not challenged at trial in cross‑examination' (emphasis added).[83]
[82] Appeal ts 42.5.
[83] Appeal ts 46.
Counsel for Mr Moyes also said that ground 1 raised, in effect, a third point. He said that he had to 'deal with' the judge's finding at primary decision [306] to show that the alleged error of law would have 'made a difference to the outcome'.[84] In relation to this third matter, counsel for Mr Moyes referred to Dr Majedi's evidence at trial ts 1940, 1962 and 2059 ‑ 2060[85] (referred to in [68], [71] ‑ [74] below) and submitted:[86]
He [Dr Majedi] was talking about the large amount of force in the context of the disc protrusion or the fracture. And in the next paragraph he's talking about avulsion injuries, … none of these injuries have anything to do with a soft tissue injury and the nociplastic pain … That's not what the case below focused on or this appeal is dealing with.
…
So not force that caused the fracture or disc protrusion, but force that gave rise to soft tissue damage, which was an essential ingredient for nociplastic injury. (emphasis added)
[84] Appeal ts 50 - 51.
[85] Appeal ts 50 - 51, 53 - 54.
[86] Appeal ts 54.
In written submissions in reply filed 22 June 2022 in relation to the proposed amended grounds of appeal, Mr Moyes also submitted:[87]
[87] Appellant's written submissions in reply filed 22 June 2022, pars 6 - 9.
6.At t 2857 (underlining added [by appellant]):
CAMPBELL, MR: But Dr Pratsis was very persuasive on the point in our respectful submission.
PETRUSA DCJ: Yes. Although as a matter of logic if I accept there is a fall, stepping from a grate that is 4.26 millimetres high onto a slippery floor, you go 9.8 metres per second times mass is the degree of force - - -
CAMPBELL, MR: Big man.
PETRUSA DCJ: to which falling through, you know, some distance onto an edge, you know, on pure physics there's a reasonable force being applied to a relatively small area of the body.
7.In other words, her Honour knew or appreciated (by the time of closing addresses) that it was not the evidence of the pain specialists that a certain amount of force was required to cause soft tissue injury to the nerves.
8.For reasons submitted in paragraphs 1 to 13 of the appellant's case, not only was there no evidence from the pain specialists as to the amount of force necessary to cause soft tissue injury to the nerves [but the judge] actually misunderstood or misconstrued the effect of the pain specialists' evidence in her reasons, by conflating their evidence concerning the amount of force required for vertebral fracture or disc protrusion, with the question of soft tissue injury to the nerves. To misconstrue evidence in these circumstances amounts to an error of law, as is drawing consequential inferences for example at [300] (as to the requisite amount of force required to cause injury to nerves) without any rational or adequate evidentiary foundation.
9.Put another way, there was no evidentiary or rational basis for drawing any inference that:
(a)A certain (scientific?) threshold of force was necessary before soft tissue injury to nerves can occur;
(b)That threshold was actually not met in this case.
(footnotes omitted) (italics emphasis added, underlined emphasis in original)
The appellant cited Garling v Association to Resource Co‑Operative Housing Co-Op Ltd[88] in support of the proposition advanced in the final sentence of par 8 as reproduced in the above passage.
[88] Garling v Association to Resource Co-Operative Housing Co-Op Ltd [2001] NSWCA 377.
It is evident from the italicised part of the submission in par 8 of [51] above, that Mr Moyes sought to contend that the judge misconstrued the medical evidence of the pain specialists, despite the deletion of the words 'misunderstood the evidence of the pain specialists' in the minute of amended grounds of appeal. This matter is further discussed in [92] and [99] below.

Appellant's submissions - ground 2

Mr Moyes in his written submissions in relation to original ground 2 submitted:[89]
[89] Appellant's written submissions, pars 16 - 22; WB 11 - 14.
16.At [135] the Learned Trial Judge noted that Dr McCormick had said that flexion of the back (rather than direct impact trauma) can snap an osteophyte in that position (T 2037). Success in this appeal does not require that the Appellant establish that this is what in fact occurred - however the point is simply to demonstrate that the reasoning employed by the Learned Trial Judge is unsafe because her Honour used this negative finding (ie no audible sound) as a basis for finding that the fall was not 'forceful', when this was not the subject of cross examination. Had he been cross examined, the Appellant would have stated that he was wearing earplugs and did in fact sense or perceive a cracking internally. Moreover, the accident did not occur in the noisy pump room, but in the sack room behind closed doors.
17.The Learned Trial Judge also discounted Dr Salmon's objective clinical neurological testing at [295] ‑ [297], which Dr Salmon thought was highly significant. At any rate, none of these matters were put to the Appellant or Dr Salmon, and there was no evidence that the Appellant knew of the unique frontal distribution of pain, nor was it put to him that he derived such specific knowledge from the Internet. The Learned Trial Judge's (wrong or unfair) reasoning appeared to be that the Appellant did not hit his back with (according to her Honour) sufficient force to cause disc prolapse or vertebral fracture, therefore he suffered no injury whatsoever, therefore any positive response to neurological testing must have been feigned.
18.The Appellant's Evidence that he had suffered back pain and adverse symptomology from the time of the work accident was not challenged in cross examination. The Learned Judge erred in Law … by denying the Appellant procedural fairness because the topic was not the subject of cross-examination: The Findings in [443], were not put to the Appellant.
…
19.At [234] the Learned Trial Judge explained how Oxycodone and Endone numbs the brain by numbing the emotional and cognitive aspects of pain, so the person is tricked into becoming active. However, tolerance and addiction develop quickly: [236].
20.The Appellant had a past history of Endone reliance which stopped in 2006, but was again prescribed this after the fall ([240]). The Appellant had returned to work and had a significant income earning history from 2007 (Exhibit 1, page 629 ‑ 640), until his fall. However, this and many other factors were not put to the Appellant, Dr Majedi or Dr Salmon ([277], [278]) - possibly because the cross examiner did not think a historical Endone reliance in 2006 was relevant in 2012, particularly after a significant work history in the intervening years.
21.The Learned Judge erred in Law [at [422]] … by saying Mr Moyes then went further and by unmistakable inference claimed Dr Dewing fabricated his records to justify prescribing the Endone.215 [sic - in the original of the quoted passage the '215' appears in superscript to designate that this is a footnote reference]. This is a serious claim to make against a medical practitioner arising out of his professional duties and does Mr Moyes no credit whatsoever. This is not what the Appellant said at 710 Ts. The Judge erred in denying the Appellant procedural fairness by not stopping the Defendant's Barrister to allow the Appellant to finish answering the question after, 'so probably the doctor - - - '. The answer would have been, 'so probably the doctor, (had the medical authority approved under severe back pain)', which is standard practice.
…
22.The appellant repeats the submissions in relation to Ground 1 above. (original emphasis)

In oral submissions at the appeal hearing, counsel for Mr Moyes submitted that ground 2 was intended to challenge the findings at primary decision [295] ‑ [297], and raised the prospect of an amendment to the particulars of ground 2 consistently with the amendment ultimately proposed in the minute of amended grounds of appeal.[90]
[90] Appeal ts 62 - 64.
In oral submissions, counsel for Mr Moyes submitted that the (alleged) absence of cross‑examination on the particularised matters, involving (alleged) non‑compliance with the rule in Browne v Dunn,[91] moreover meant (particularly in relation to the proposed amendment to particular (c) of ground 2) that Mr Moyes was denied procedural fairness, which required the primary decision to be 'quashed'.[92]
[91] Browne v Dunn (1893) 6 R 67 (HL).
[92] Appeal ts 65 - 73.
In written submissions in reply dated 22 June 2022 in relation to the proposed amendments to ground 2, counsel for Mr Moyes submitted:[93]
12.The proposed amendment does not add new matter [sic], but restricts an otherwise broader ground. The clarifying amendment is in accordance with [Mr Moyes'] written submissions, at paragraphs 16 to 19. Had her Honour not denied procedural fairness, her Honour might well have accepted the highly‑regarded evidence of Dr Salmon as to the diagnostic significance of his particular and highly‑specific neurological testing.
13.Contrary to the respondent's submissions, the issue here is not the general credibility attack upon [Mr Moyes] during the trial, which may have gone to the question of quantum (had this been assessed). The learned trial judge found that the fall as described actually happened, due to the breach of duty of care. The only question was what injury was sustained.
14.On this point (ie, what injury was sustained), the learned trial Judge dismissed (between primary decision [295] ‑ [297]) Dr Salmon's highly specific neurological testing, on the basis that [Mr Moyes] had (concertedly if not fraudulently, it must be said) fooled Dr Salmon by presenting clinically with the unique nociplastic distribution of symptoms in the back and front of his spine, after researching the Internet. This was never put to [Mr Moyes] - and if the learned Judge only thought about it in the 19‑month interval between closing submissions and delivery of reasons, at the very least [Mr Moyes] ought to have been recalled: Kuhl v Zurich Financial Services.[94] Although her Honour only cited Kuhl at [69] (see primary decision [205]), see also Kuhl at [67], [70], [75] (and [76]).
15.In fact, the question of the possibility or feasibility of feigning (frontal distribution of symptoms) was never put to Dr Salmon in cross examination (between t 1814 ‑ 1826), despite Dr Salmon's clear evidence in chief at t 1805, explaining this distinct feature of neurological/neuropathic testing (as referenced in her Honour's reasons at footnote 143). (original emphasis) (footnotes omitted)
[93] Appellant's submissions in reply dated 22 June 2012, pars 12 - 15.
[94] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361.
The evidence of Dr Salmon at ts 1805 referred to in the above submissions concerned 'pinprick testing' for pain sensitivity using a paperclip in the area from the nipple line down to the abdomen.[95] Dr Salmon's evidence included:[96]
[W]here did you actually do this testing?---Well, I start at the top above the pain area, so I move from non-pain areas through the pain areas and out the other side, so you sweep down using a uniform pressure and … get the patient's report of what they're feeling and … you first ascertain that they get a normal not painful sensation to pinprick in … an area outside the pain area, and then you move towards the pain area, and in his case he reported hypersensitivity to the pinprick as I went down the back of the chest where his pain is and then I went down the front, and which isn't a pain area but he also had hypersensitivity in those dermatomes T4-T12, which I take to be evidence that the nervous system network in the whole area was hypersensitive.
CAMPBELL, MR: And does that give you any confidence or otherwise in the clinical presentation of the patient based on your previous experience?---Well, I think when you can detect hypersensitivity that isn't in the pain area I think that's an indication that the patient isn't feigning the report because I think if they were feigning hypersensitivity they would exaggerate their response in the pain area but I don't think it would occur to them to exaggerate the response in the non-pain area at the front of the chest.
So what you're saying is his response was referable to the … nerve distribution for the area that was affected at the back which encompassed the front?---Yes.
[95] Trial ts 1804.
[96] Trial ts 1804 - 1805.
In Kuhl, to which reference was made in Mr Moyes' written submissions in reply, the majority (Heydon, Crennan & Bell JJ) characterised observations made by the trial judge in that case that the plaintiff's evidence was 'less than expansive' and indicated that he was 'reluctant to say precisely what happened' as a finding to the effect that the plaintiff/witness had deliberately suppressed the truth about the circumstances of the accident. This was in a context where, at trial, the plaintiff's version of the accident had not been challenged in cross‑examination by the defendant.[97] Their Honours continued:[98]
[97] Kuhl [61] - [62], [65].
[98] Kuhl [67] - [75], [77].
[67]It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party's claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party‑witness must have been given an opportunity to deal with the criticism.
[68]The lack of reasons. It is not necessary to cite authority for the existence of the first condition. It was certainly not satisfied. The trial judge gave no reasons at all for the view he formed. Nothing on the face of the evidence indicates reluctance. The trial judge's conclusion could have been based on the demeanour of the plaintiff in answering the questions, or perhaps on the plaintiff's demeanour at other times during his testimony, or perhaps on his demeanour during the trial while not in the witness box. In this Court the first respondent repeatedly called the trial judge's finding 'demeanour based'. But the trial judge did not refer to demeanour as a justification for his conclusion. …
[69]The lack of warning. The second condition is more controversial. Judges are not entitled to inform themselves before taking judicial notice without giving the parties an opportunity to comment on the material referred to. Judges are not entitled to criticise expert witnesses by reference to expert material not in evidence without those witnesses having an opportunity to respond. Judges are entitled to take into account the demeanour of party-witnesses, not only in the witness box, but while they enter and leave it, and also while they are sitting in court before and after giving evidence; but observations by the judge of conduct outside the witness box which the representatives of the parties may not have observed, should, if they are influential in the result, be drawn to the attention of the parties so that they may have an opportunity of dealing with the problem. There is thus no general duty on a judge to advise the representatives of the parties of what they can see for themselves, namely the demeanour of the party-witness in the witness box. Nor, a fortiori, is there a duty on a judge to advise the parties that the party-witness's evidence is not adequate to make out the case of that party-witness. But there was held to be a breach of the duty of procedural fairness where a party claiming compensation for injury was held to have feigned or exaggerated her symptoms although this had not been suggested in cross-examination and the respondent disavowed that possibility.[99]
[99] Marelic v Comcare (1993) 47 FCR 437, 443 ‑ 444.
[70]If, in the present case, the first respondent had submitted in final address that the plaintiff had answered his own counsel's questions in chief about how his arm had been drawn into the vacuum hose by deliberately concealing material adverse to his case and favourable to the first respondent's - an allegation not of inadequacy in evidence but of suppression of evidence supporting an inference that the plaintiff knew his case was bad - a breach of the rule in Browne v Dunn would have taken place.
[71]In Browne v Dunn Lord Herschell LC said:
'it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.' (emphasis added)
An allegation in final address that the plaintiff suppressed evidence would be in substance a suggestion that he was not speaking the truth and ought not to be believed ... So to allege would have been to 'impeach' the plaintiff as a witness. The remedies might have included a refusal by the judge to accept or entertain the submission, and a recall of the plaintiff to the witness box to deal with the allegation.
[72]Now if it was not open to counsel for the first respondent to make the postulated allegation, how can it have been open to the trial judge, without warning, to incorporate into his reasons for judgment a finding to the same effect as the allegation?
[73]For those reasons the second condition referred to ought to have been satisfied before the trial judge made the criticism he did.
[74]The second condition was not satisfied. The plaintiff had no opportunity to deal with the criticism. Normally cross‑examining counsel will prefigure and lay the ground work for any criticism a judge may feel minded to make of a witness's evidence in chief. But here there was no cross-examination on the plaintiff's evidence in chief about what happened in the moments before he sustained his injuries. …
[75]There was no point in the trial judge mentioning his conclusion that the plaintiff's evidence was not frank and complete unless it played a role in his decision adverse to the plaintiff. In the absence of any challenge from the cross-examiner to the frankness and completeness of the plaintiff's evidence, it was incumbent on the trial judge, if his conclusion that the plaintiff had not been frank and complete was to play a role in his decision adverse to the plaintiff, to make the challenge himself. Perhaps the criticism in the judgment did not occur to the trial judge until after the plaintiff had left the box, or until after the hearing had concluded and before the judge's reserved judgment was given. It remained necessary either to recall the plaintiff or to have no regard to that aspect of the plaintiff's evidence.
…
[77]The difficulties just discussed would justify an order for a new trial - an unpalatable prospect nearly three years after the first trial and almost 12 years after the accident. But the plaintiff does not seek a new trial. He seeks judgment. In the circumstances, although findings of the kind criticised above tend invisibly and inseverably to permeate the whole of a judge's reasoning, the desirable course is to proceed as though the trial judge's reasoning which has been criticised did not exist, with a view to seeing whether it was otherwise defensible. (emphasis added (other than at the start of [68], [69] and [71])) (footnotes omitted (other than a footnote to [69]))

Respondents' submissions on appeal

In summary, the respondents submitted that the judge's findings were correct for the reasons she gave, and that there was no failure to put matters to Mr Moyes in cross‑examination or any breach of the rule in Browne v Dunn.

Mr Moyes' case at trial on nociplastic pain[100]

[100] Although the evidence and submissions at times use the words 'neuropathic pain' and 'nociplastic pain' synonymously, Dr Salmon's evidence was that the term 'nociplastic' had not been sufficiently recognised in 2016 and that is why Dr Salmon 'twinned it' with 'neuropathic'. His evidence was that from a 'pragmatic' point of view, the term 'neuropathic' has been applied to the pain the subject of his evidence but, strictly speaking, with modern nomenclature, the alleged pain ought to be referred to as 'nociplastic' pain: trial ts 1814.

Before addressing the grounds of appeal, it is convenient, given the nature of the issues in the appeal, to return in more detail to Mr Moyes' case concerning nociplastic pain at the trial.

The alleged spinal injuries

As noted in [16] above, Mr Moyes particularised his injuries as including injuries to his thoracic spine. At the trial, he alleged, in substance, that the injuries to his thoracic spine occurred at around the T8 level, and involved:[101]
1.a fracture of the thoracic spine at around T8; and
2.disc protrusion at the T8 level.
[101] Trial ts 73, 76 - 77, 84, 85, 88.
In relation to the alleged fracture, Mr Moyes relied on an X-ray report dated 2 March 2012 which referred to a suspected fracture at T8,[102] and the expert opinion of an orthopaedic surgeon, Dr Pratsis.[103] Dr Pratsis described the fracture as an 'avulsion fracture':[104]
The avulsion fracture indicates that the muscle or tendon or ligament did not break but the force went through the bone and it pulled a little bit of bone off.
[102] Primary decision [103] - [104].
[103] Primary decision [107], [109].
[104] Trial ts 1525.
In relation to the question of the disc protrusion, Mr Moyes relied (inter alia) on a radiological report of the CT scan dated 8 May 2012 and an MRI report dated 29 June 2012.[105]
[105] Primary decision [105], [106].
Mr Moyes' case was not that the alleged fracture and disc protrusion were 'sinister' pathology in the sense that they involved neurological compromise or damage to his motor functioning. Indeed, the orthopaedic surgeons, including Dr Pratsis, were of the opinion that (1) any fracture caused at the time of the fall would have fully healed by 8 May 2012, and (2) the T8 disc protrusion did not compromise any nerves.[106] Further, the MRI report indicated that there was no fracture to the T8 vertebra visible as at 29 June 2012.[107] Rather, Mr Moyes' case (as indicated in [66] ‑ [80] below) was to the effect that the pathology of a fracture and disc protrusion signified that a significant force had been applied to the thoracic region which was 'crushing' of the soft tissues resulting in disturbance of the sensorial nerves and hypersensitivity of the nervous system, amplifying feelings of pain. Further, Mr Moyes' case was that even if there was no actual fracture at T8, but (as the X‑ray report dated 12 March 2012 indicated) merely a suspected fracture, the force to bring about a suspected fracture would have been significant, and was thereby evidence from which sensorial disturbance consistent with nociplastic pain could be inferred. Moreover, senior counsel for Mr Moyes submitted that even if there were no fracture or suspected fracture at T8, the disc protrusion was in itself cogent evidence of the fall producing significant force on the thoracic area. The imagery used in this context was that the force of the injury 'turned the lights on'[108] or caused the 'train to the city of catastrophe' to start 'on its journey'.[109]

The evidence of Dr Majedi and Dr Salmon

[106] Primary decision [107].

[107] Primary decision [106].

[108] Trial ts 1940.

[109] Trial ts 2867.

As noted earlier, evidence as to the nature of and mechanisms involving nociplastic (or neuropathic) pain was given by Dr Majedi and Dr Salmon on behalf of Mr Moyes.

Dr Majedi

In the course of adducing evidence‑in‑chief from Dr Majedi, senior counsel for Mr Moyes referred to the evidence of disc protrusion and the (alleged) avulsion fracture[110] and, in that context, the following exchange occurred:[111]
And would a fracture of that description be of any relevance in any of the diagnoses you ultimately made or not?---It is, along with a disc protrusion, it indicates a significant force to the spine.
In association with the event that you understood happened, that is, a slippage causing you to call [sic] back onto a hard and relatively sharp surface on that mid area of the back?---That's correct. And very - it has - the force has to be over a small area … to do that.
When you say 'to do that', you mean to cause the protrusion and fracture?‑‑‑And fracture, yeah.
…
PETRUSA DCJ: Sorry. Why would a suspected fracture?---As a general rule, a mid-thoracic disc protrusion takes a lot of force. … [I]f I come across … any image finding of a disc protrusion in [the] thoracic area, I explore what caused it … and the force of that nature will generally do some form of fracture somewhere. (emphasis added)
[110] Trial ts 1937 - 1938.
[111] Trial ts 1938.
The evidence‑in‑chief of Dr Majedi continued:[112]
[112] Trial ts 1939 ‑ 1941, 1943.
[CAMPBELL, MR:] And so that if an orthopaedic surgeon for example were to have looked at X-rays … and they were to have expressed the view that there was in their opinion an obvious fracture at the inferior end‑plate of [T8] … representative of an avulsion‑type fracture … that would be consistent, would it not, with a traumatic fracture in that area something in the order of six weeks or so before?‑‑‑That's … completely appropriate for normal occurrence and normal progress.
And that would also indicate if it was in association with the [disc] protrusion of the type you've referred to … a significant force to the … thoracic spine?---That is correct, the mechanism of injury is very important in the clinical diagnosis and in my mind at the time and also with all the evidence present is consistent with a large amount of force over short - over a small area was applied to the spine and the force has to go somewhere so either there is a breakage or there's a disc protrusion or both, and in more sinister scenarios the spinal cord itself may get transected, and I've seen this as well in unfortunate individuals.
…
Now, the word avulsion, what relevance does that have in this?--- … I'm not an orthopaedic surgeon …, but avulsion generally refers to something coming off that, so we - we get avulsion described in a number of different injuries where a tendon avulses a piece of bone, also it refers to something coming off.
Again, suggestive of a high level of force?---There's definitely - everything about this - these types of injury says a lot of force applied.
And - and that has a parallel importance, because that force in turn is productive of a form of crushing of soft tissues?---Definitely.
And that then has a consequence of interfering or potentially interfering with the sensorial function of the nerves superficially underneath those soft tissues?---Definitely.
So that as a mechanism process, the sensorial nerves are vulnerable to disturbance?---Definitely.
And when you have a sensorial interference with those nerves, independently of pain you get from fractures and protrusions, you get a separate set of pain symptoms?---That's right. … [Y]ou're, in a way, amplifying all the other sensations around that area because the nerves themselves are now highly sensitised.
And … you used the word in your last report, I think, 'pain amplification'; is that what you mean? … [I]t turns the lights on on those nerves?---Yeah. So pain amplification is, effectively, a hallmark of what pain specialists do. We - we are electricians and orthopods are carpenters, so that's - that - - -
So you … put the lights on on the Christmas tree, in terms of the nerves.
…
- - - … the underlying pathological process is not controversial, that is that there has been … an event which has a sensorial disturbance of the functioning of the nerves?---That's correct … - if you look at the - the trigger, the point where this pain … starts in this mechanism when there is this high force, lots of soft tissue components, their peripheral sensory system becomes heightened and - and it takes a long time for that to settle down. (emphasis added)

Disposition

Leave to amend

We would grant leave to amend the grounds of appeal, essentially for three reasons. First, the grounds as originally formulated were prepared by Mr Moyes when he was self‑represented. The amended grounds reflect counsel's approach to the appeal. Secondly, the respondents have accepted that they are not prejudiced in dealing with the amended grounds. Thirdly, the amendments narrow rather than enlarge the scope of the appeal, particularly by the deletion of the reference to the allegation that the primary judge 'misunderstood the evidence of the pain specialists'.

Ground 1 - disposition

As noted earlier, ground 1, as amended, alleges that the judge erred in law in finding at primary decision [219] that Mr Moyes did not fall with significant or sufficient force such as to cause 'soft tissue injury to the nerves'[130] in circumstances where:
1.Mr Moyes' evidence on this topic was not challenged at trial (ground 1(a)); and, or alternatively
2.there was no evidence as to the amount of force necessary to cause soft tissue injury to the nerves as asserted by Mr Moyes (ground 1(b)).
[130] The phrase must be understood, in the context of the appellant's case as a whole, as a reference to nociplastic (or neuropathic) pain.
The finding at primary decision [219] to which the ground is directed is:
To this point then, I have found first, that Mr Moyes suffered a fall, although it was not a forceful fall. Secondly, he did not suffer a fracture of T8 or a prolapsed disc at T7/T8 or bruising or swelling as a consequence of the fall. Thirdly, I have set forth his medical treatment.
There were no appeal grounds alleging that the judge erred in fact in finding, after a detailed review of the evidence, that:
1.there was no radiological evidence of the pain symptoms of which Mr Moyes complained;[131]
2.there was no evidence of external injury to Mr Moyes' back consistent with a fall involving a lot of force;[132]
3.Mr Moyes did not, as a consequence of the fall, suffer any bruising or swelling;[133]
4.Mr Moyes did not, as a consequence of the fall, suffer a fracture at around T8;[134]
5.Mr Moyes did not, as a consequence of the fall, suffer a prolapsed disc at around T8;[135]
6.the fall was not a forceful fall;[136]
7.both Dr Majedi and Dr Salmon relied upon and accepted Mr Moyes' complaints of pain for the purposes of their diagnosis of nociplastic pain;[137] and
8.in the course of giving his evidence, Mr Moyes was 'inaccurate, inconsistent and at times, clearly untruthful'[138] - the judge concluding that she could not accept Mr Moye's evidence about the injury and pain arising from the fall.[139]

Ground 1(b)

[131] Primary decision [140] - [141].

[132] Primary decision [300].

[133] Primary decision [92], [142] - [151], [219].

[134] Primary decision [136] - [140], [219], [307], [732].

[135] Primary decision [136] - [141], [219], [290], [307], [732].

[136] Primary decision [66], [94], [219], [290], [300], [307].

[137] Primary decision [299].

[138] Primary decision [427].

[139] Primary decision [731].

In this context, we would dismiss ground 1(b) for the reasons in [86] ‑ [100] below.
First, the allegation that the judge erred in law on the basis that there was 'no evidence' of the amount of force required to cause (in effect) nociplastic pain to Mr Moyes raises a false issue. The issue before the judge was whether Mr Moyes had established that the fall caused disturbance of the sensorial nerves and associated hypersensitivity of the nervous system resulting in nociplastic pain. Causation was a question of fact on which Mr Moyes bore the onus of proof,[140] and whether the onus was discharged is not a question of law.[141] As Glass JA (Samuels JA agreeing) said in Azzopardi v Tasman UEB Industries Ltd:[142]
The party saddled with the onus … cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence … The burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof. (original emphasis)
[140] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514.
[141] Clark v Flanagan [1934] HCA 73; (1934) 52 CLR 416, 427 ‑ 428; Waite v Alcoa of Australia Ltd [2020] WASCA 1 [99] and the cases therein referred to.
[142] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156.
Secondly, any finding of nociplastic pain was, to a substantial degree (at least), dependent on the acceptance of Mr Moyes' testimony as to the existence, nature and extent of the pain. The judge did not accept Mr Moyes' evidence,[143] and, moreover, made significant adverse credibility findings[144] supported by (many pages of) specific examples where his evidence lacked credibility which are not the subject of any complaint in this appeal. Even if Mr Moyes' ground 1(b) were read as alleging an error of fact, he would have needed to engage with the adverse credibility findings against him. A party cannot, by alleging error of law in this way, circumvent the general principle that in the case of factual findings based, at least to any substantial degree, on the assessment of the credibility or reliability of the witnesses, an appellate court will not interfere with a finding unless it is demonstrated to be wrong by reference to incontrovertible facts or uncontested testimony, or because the finding is glaringly improbable or contradicts compelling inferences, or because the judge failed to use, or has palpably misused, his or her advantage as a trial judge.[145]
[143] Primary decision [731].
[144] Primary decision [394] - [571].
[145] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28] ‑ [29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43]; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55]; Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208 [93]; Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334 [105] ‑ [107], [205] ‑ [207].
Thirdly, the findings referred to in [219] were by way of summary. The judge was summarising her Honour's earlier findings of primary fact in relation to the case advanced by Mr Moyes at trial. The judge was not, at [219], making a finding in the abstract as to the amount of force necessary or sufficient to cause nociplastic pain in Mr Moyes. Her Honour was not, as submitted by Mr Moyes, making any finding as to 'a certain (scientific?) threshold of force' which was not met in this case.[146] Rather, the judge (correctly) made findings on the evidentiary matters pressed on behalf of Mr Moyes at trial that were alleged by him to be consistent with, and supportive of, a finding of nociplastic pain. There is no error of law in making findings of primary fact on the case as presented by Mr Moyes at trial.
[146] Appellant's written submissions in reply filed 22 June 2022, par 9, quoted in [51] above.
Fourthly, and related to the point just mentioned, a theme of Mr Moyes' submissions was to the effect that the judge impermissibly entered into the field of 'biomechanics'[147] in not being satisfied that Mr Moyes had suffered nociplastic pain, when there was no 'scientific or biomedical [sic - biomechanical] evidence'[148] to support the judge's finding. Again, this is a mischaracterisation of the finding at [219]. The judge was not explicitly or implicitly making findings on biomechanical issues of which there was no evidence. Her Honour was merely addressing the case advanced by Mr Moyes at trial and summarising her earlier findings of primary fact.
[147] Appellant's written submissions, par 15; WB 10 - 11 (quoted in [45] above).
[148] Appellant's written submissions, par 15; WB 10 - 11 (quoted in [45] above).
Fifthly, insofar as counsel for Mr Moyes (who did not appear at the trial) submitted that at the end of the trial senior counsel for Mr Moyes had 'abandoned' the allegations of a fracture or suspected fracture and/or disc protrusion at T8, that submission cannot be accepted having regard to the matters in [62] ‑ [80] above. To the contrary, as the primary judge confirmed with senior counsel for Mr Moyes, Mr Moyes' case was that he sustained a fall of sufficient impact to cause sensorial neuropathic pain - the evidence of that degree of force being, among other things, the alleged T8 fracture and disc protrusion.
Sixthly, and related to the last point, the judge's exchange with senior counsel for Mr Moyes as referred to in par 6 of Mr Moyes' appeal submissions in reply dated 22 June 2022 (see [51] above) is not evidence that the judge recognised that senior counsel for Mr Moyes had abandoned those allegations. The exchange is no more than the judge, in a provisional way and 'on the hoof' (as it were), engaging in dialogue with senior counsel for Mr Moyes about an aspect of the evidence. Nor could the exchange be treated as some kind of 'admission' by the judge that the medical evidence was to be understood in a way different from her Honour's findings in the primary decision.[149]
[149] The findings are at primary decision [279] - [307].
Seventhly, the submission that the judge 'misconstrued' the evidence of the pain specialists is inconsistent with the amendment to ground 1 and beyond its terms. However, even if that matter were thought to fall within amended ground 1, we are not persuaded that the judge misconstrued the medical evidence. In particular, the following matters are pertinent:
1.The judge's review of the evidence is entirely consistent with the way in which senior counsel for Mr Moyes put his case at trial.
2.The judge heard the evidence as it unfolded in the course of the issues presented for resolution at trial, and an allegation that the judge misunderstood the evidence is not properly demonstrated by taking this court to a few isolated pages of transcript. That is particularly so where there is no allegation that the judge erred in fact in finding that nociplastic pain had not been established. Had such an allegation been made, Mr Moyes would have needed to file a Practice Direction 7.4 schedule setting out all the evidence in support of, and all the evidence against, such a finding, and the respondents would no doubt have responded in detail. That would have resulted in an entirely different appeal in character from the one framed by reference to the (amended) grounds of appeal.
3.In any event, having, for the purposes of this point, read the entirety of the transcript of the evidence of Dr Salmon[150] and Dr Majedi,[151] including the evidence referred to in [67] ‑ [75], we are not persuaded that the judge's findings as to the nature and purport of their evidence is incorrect.[152]
4.Moreover, the burden of Dr Majedi's evidence (including the evidence referred to in the preceding paragraph) was, relevantly:
(a)his opinion was influenced both by the evidence of the fracture or suspected fracture at T8, as well as the disc protrusion at T8;
(b)of the two, the more significant was the firm evidence of a disc protrusion - the X‑ray evidence of a fracture was contestable and less reliable;
(c)the evidence of disc protrusion indicated a degree of significant force consistent with a 'crushing' of the soft tissues, resulting in the requisite sensorial nerve disturbance for nociplastic pain; and
(d)the conclusion that Mr Moyes suffered sensorial nerve disturbance and nociplastic pain as a result of the fall would be confirmed and underscored by evidence, if accepted, of an avulsion fracture at T8, but such a conclusion would not be dependent on the acceptance of the evidence of a fracture given the evidence of force associated with disc protrusion.
[150] Trial ts 1793 - 1830.
[151] Trial ts 1927 - 1969, 2058 - 2080.
[152] Primary decision [279] - [307].
Eighthly, we do not accept counsel for Mr Moyes' contention (see [51.8 above) that there was any relevant error of law if the judge misunderstood or misconstrued the evidence of the pain specialists. In that connection counsel relied on Garling v Association to Resource Co-Operative Housing Co-Op Ltd. But, as Heydon JA[153] (as his Honour then was) made clear in that case, to misconstrue or misunderstand evidence and to arrive at a result by reason of a wrong factual conclusion is only to err in fact and not in law.[154] There was, however, no challenge within the appeal to the judge's factual finding that Mr Moyes had not established that he suffered sensorial nerve disturbance associated with nociplastic pain as a result of the fall.
[153] Sheller & Beazley JJA agreeing.
[154] Garling v Association to Resource Co-Operative Housing Co-Op Ltd [19].
The third matter raised by counsel under (it appeared) amended ground 1(b) (see [50] above) was that he needed to 'deal with' the judge's finding at primary decision [306] so as to show that the alleged error of law would have 'made a difference to the outcome'.
Primary decision [306], and primary decision [289] to which it refers, are set out below:
[289]In addition to the degree of force, Dr Majedi gave evidence about the usual progression of nociplastic pain conditions. In this regard he said:
'If there was a disc protrusion that - in - in that instance, the pain should have been immediate pain, I mean a force of that nature, falling onto one's back, there should be pain immediately.
… The pain should be ongoing from there, it may take a few days to ramp up, it may not [be] that clear at that point in time, but it does ramp up. Usually - again, I don't have publication evidence on this, but clinical experience, patients usually declare that there was a [sic] incident, they didn't feel much, next - over the next few days or a week pain ramped up and got worse.'
…
[306]Neither Dr Majedi nor Dr Salmon were aware of these expressions of work availability and the consequent delay in the onset of pain in Mr Moyes' symptoms. In discussing the progression of a pain condition, Dr Majedi was asked about pain taking a month for symptoms to manifest and he said this:
'A month is - is an unusually long time, however, on the other side, that soft tissue injuries take a bit longer to evolve in their progression. So that is - so they - usually patients that have soft tissue injuries, there's some delay between the actual incident and the presentation or increase in pain.'
Dr Majedi was not pressed to express any opinion about the time taken for Mr Moyes' pain to manifest, but his view of this is clear, as set out above at [289]. (footnotes omitted)
The evidence referred to at primary decision [306] is part of the evidence at ts 1961 ‑ 1962 referred to in [71] above.
Four points may be made about this matter. First, the point is otiose because Mr Moyes has not established any error of law as alleged.
Secondly, it is not a proper approach to appellate review to say that an alleged erroneous finding of fact must be 'dealt with' in submissions. If there is an alleged error of fact, there should be a ground of appeal alleging error of fact so that the conventional principles of appellate review are brought to bear on the resolution of that issue. If an appellant succeeds on a ground which the appellant submits entitles the appellant to a verdict or a retrial, that submission is, generally speaking, assessed having regard (amongst other things) to any otherwise unchallenged findings of fact.
Thirdly, the point raises an alleged misconstruction or misunderstanding of Dr Majedi's evidence, which, as indicated earlier, is outside the scope of amended ground 1.
Fourthly, and in any event, the burden of Dr Majedi's evidence was as set out in point 4 of [92] above. The evidence of Dr Majedi referred to in [71] above was to the effect that, even on the assumption of no fracture, a month would be an 'unusually long time' for nociplastic pain to manifest, but, on the other hand, soft tissue injuries 'take a bit longer to evolve in their progression'. Understood in the context of Dr Majedi's evidence as a whole, including the significance he attached to the prolapsed disc at T8, the conclusion was open that whilst soft injuries may take some time to evolve, a month's delay in the development of pain would nevertheless be outside of the ordinary timeline associated with the existence of nociplastic pain. No misunderstanding of the evidence has been established.

Ground 1(a)

Ground 1(a) appears to be the 'Browne v Dunn' point referred to by counsel in oral submissions. We would dismiss this ground for essentially two reasons. The first is that Mr Moyes' evidence was challenged in relation to the existence and extent of the alleged pain by reference to his alleged disabilities in consequence of the alleged pain. In that regard, it may be observed that there is no challenge to the judge's findings that Mr Moyes was challenged at length about his capacities and activities over time and, in particular, that he had not accurately reported these matters to his doctors, that he was exaggerating, that he was not being truthful in order to make out his claim, and that he was given every opportunity to answer these allegations.[155] That is consistent with the respondents' written opening submissions before the trial in which it was said that the 'veracity of [Mr Moyes'] account of the accident and its sequelae [was] very much an issue in these proceedings'.[156]
[155] Primary decision [708] - [709].
[156] Respondents' written opening submissions dated 6 October 2017, par 3.
Further, Mr Moyes' oral evidence about the fall, which included the statement that he heard a 'loud snapping sound', was challenged in cross‑examination by reference, amongst other things, to the contents of the contemporaneous medical log report dated 19 January 2012.[157]
[157] Trial ts 753 - 760.
It is also evident that the respondents contested Mr Moyes' allegations that he had suffered a fracture or suspected fracture and/or prolapsed disc at around T8 as a consequence of the fall.[158] It was also put to Dr Majedi[159] and Dr Salmon[160] in cross‑examination that they were reliant on the history of pain provided by Mr Moyes.
[158] Primary decision [114] - [141].
[159] Trial ts 2060.9.
[160] Trial ts 1816.5.
The second reason is that there is, in any event, no requirement that the judge must accept evidence that has not been the subject of cross‑examination. At least generally speaking, the failure to cross‑examine a witness on a point is merely a relevant factor to be evaluated and weighed, together with all other relevant factors in the case, in deciding whether to accept or reject the witness' evidence on the point.[161] Counsel for Mr Moyes did not seek to engage with that evaluative process in his submissions but, rather, contended, incorrectly, that the primary judge was bound to accept Mr Moyes' evidence.
[161] Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150 [192].
Turning specifically to Mr Moyes' written submissions referred to in [45] above:
1.In relation to par 5, at primary decision [66] the judge made a finding that she was 'not … satisfied that [Mr Moyes] landed forcefully on his back, as he now alleges'. As noted earlier (at [21] above), her Honour provided detailed reasons for that finding, including findings to the effect that Mr Moyes' account was inconsistent with other evidence, including his own testimony, that aspects of his evidence were inherently improbable, and that, in certain respects, his evidence raised doubts as to his honesty.[162] Moreover, Mr Moyes had to establish on the balance of probabilities that he suffered disturbance of the sensorial nerves and hypersensitivity of the nervous system resulting in nociplastic pain as a result of the fall. The primary judge found that he had not discharged that onus of proof having considered all the evidence including his account of the fall, contemporaneous medical records and the evidence of the medical experts at trial. No error of law as alleged is made out.
2.In relation to pars 6 and 10, there were not two different forces applied to the T8 area. On Mr Moyes' case, one, significant, force was applied to T8 in the fall, the degree of which was sufficient to cause an avulsion fracture or at least a disc protrusion, which also (or the 'parallel importance' of which)[163] signified a crushing of the soft tissues causing sensorial disturbance and hypersensitivity of the nervous system. See also [92] above.
3.In relation to pars 9 and 14, Mr Moyes' past reliance on the drug Endone and the submission as to 'lay person's perception' of pain do not point to any error of law as alleged.
4.In relation to pars 11 - 13, Mr Moyes has not established that her Honour misunderstood the evidence of Dr Salmon and Dr Majedi, see [92] and [99] above. See also [108] ‑ [110] below as to the 'pinprick' testing by Dr Salmon.
5.In relation to par 15, see the observations in [86] ‑ [89] above.
[162] Primary decision [72] - [93].
[163] Trial ts 1940 referred to in [68] above.

For all of the above reasons, ground 1 as amended should be dismissed.

Ground 2 - disposition

The following observations may be made with respect to ground 2.
First, in our opinion, essentially for the reasons in [101] ‑ [103] above, the matters complained of by this ground were sufficiently put to Mr Moyes in cross‑examination for the purposes of the rule in Browne v Dunn. Moreover, in this regard, the observations of Bray CJ (Jacobs & King JJ agreeing) in Thomas v Van Den Yssel[164] are pertinent. His Honour said that the rule in Browne v Dunn cannot:
be applied without qualification to a challenge to the witness's credit generally, particularly the credit of a plaintiff in an action for damages for personal injuries in relation to his evidence about his symptoms and incapacities. Damages are always in issue. Such a plaintiff knows that the defendant will contend that his injuries do not deserve the sum which he himself has placed on them. And in many other cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth. I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, 'I put it to you that your evidence is false', or 'I suggest that that is a deliberate lie' or the like. Indeed a successful objection might be taken to such questions as needlessly offensive[.] (emphasis added)
[164] Thomas v Van Den Yssel (1976) 14 SASR 205, 207.
Although Bray CJ's observations were made in the context of damages being in issue, they have equal force in this case. That is because the effect of the medical evidence was that the sensorial disturbance capable of giving rise to nociplastic pain could not be demonstrated by reference to imaging or scans, and that the evidence of the existence (or otherwise) of such sensorial disturbance would depend substantially on an acceptance of Mr Moyes' complaints and evidence of his symptoms and incapacities.
In relation to particulars (b) and (c) of amended ground 2, with reference to primary decision [295] ‑ [297], the following further matters are relevant:
1.Had there been a challenge to the finding of fact that Mr Moyes had not established that the fall caused sensorial disturbance of the kind producing nociplastic pain, the evidence of Dr Salmon concerning Mr Moyes' reaction to the 'pinprick' test may have been treated as evidence (to be assessed in the context of the evidence as a whole) giving verisimilitude to Mr Moyes' complaints of pain. However, no error of fact is alleged, and counsel for Mr Moyes in this appeal disavowed the suggestion that that was the nature of the point being made.[165]
2.In a case where Mr Moyes' pain symptomology was a central issue contested by the respondents, it was not necessary for counsel for the respondents specifically to challenge the evidence as to Mr Moyes' reaction to the pinprick test.
3.The judge referred (at primary decision [297]) to Mr Moyes' email dated 3 December 2012 as bearing upon Dr Salmon's 'impression' that someone in Mr Moyes' position 'would not know of the distribution of nerves … [and] it would not occur to them to exaggerate the response in the non‑pain area at the front of the chest'.[166] Her Honour considered that Dr Salmon's 'impression' was not supported by Mr Moyes' email dated 3 December 2012.[167] There is no challenge to that finding of fact.
4.The email dated 3 December 2012 was tendered by senior counsel for Mr Moyes,[168] and was capable of being used in relation to any issue in respect of which it was logically probative.
5.There was no denial of procedural fairness of the kind found in Kuhl and Marelic. This is not a case where the judge made a finding to the effect that a party/witness had deliberately suppressed the truth in giving evidence without providing reasons and without the party/witness having been given an opportunity to deal with the criticism.[169] Nor is it a case where a party was held to have feigned or exaggerated symptoms whilst this had never been suggested in cross‑examination, and where the other party had disavowed that possibility.[170] The respondents' case from the outset had been that Mr Moyes' complaints as to his pain and other symptoms ought not be accepted.
[165] Appeal ts 43.7.
[166] Primary decision [296] - [297].
[167] Primary decision [297].
[168] Exhibit 20, page 43; trial ts 2716.
[169] Compare Kuhl.
[170] Compare Marelic.
Turning next to Mr Moyes' written submissions referred to in [54] above:
1.In relation to par 16, it is true that 'success in this appeal' does not require Mr Moyes to 'establish' in this court anything said by Dr McCormack about reflexion of the back. But that is not to the point. Success in the appeal requires Mr Moyes to establish the error of law alleged in ground 2. Nor does a general assertion that her Honour's reasoning was 'unsafe' establish appellable error. As noted in [102] above, Mr Moyes was cross‑examined about the circumstances of the accident, effectively on the basis that his oral evidence, including the 'snapping', was inconsistent with the contemporaneous log report. Moreover, there was no evidence in this appeal as to what Mr Moyes 'would have stated' had he been asked other questions.
2.In relation to par 17, see [108] ‑ [110] above.
3.In relation to par 18, Mr Moyes' complaints of pain and other symptoms were the subject of cross‑examination. Mr Moyes has not demonstrated, by reference to the trial transcript or otherwise, that the particular findings at primary decision [443] were 'not put' to Mr Moyes.
4.In relation to pars 19 and 20, the references to addiction to Oxycodone and Endone do not point to any error of law by the primary judge as alleged.
5.In relation to par 21, Mr Moyes refers to the evidence at trial ts 710 and to [422] of the primary decision. These matters are further discussed in [112] ‑ [115] below.
6.In relation to par 22, insofar as Mr Moyes relies on ground 1, for the reasons given earlier, ground 1 has not been made out.
At [422] of the primary decision, the primary judge said:
Eight days after his release from custody, Mr Moyes visited Dr Dewing complaining of lumbar pain. He obtained Endone 'for now and then'. Mr Moyes denied at trial that he complained of back pain during this consultation. He claimed that the Endone was prescribed for his restless leg syndrome. Dr Dewing's medical records contradicted this evidence. Mr Moyes then went further and by unmistakeable inference claimed Dr Dewing fabricated his records to justify prescribing the Endone. This is a serious claim to make against a medical practitioner arising out of his professional duties and does Mr Moyes no credit whatsoever. Mr Moyes received his last Endone prescription on 15 May 2007. He thereafter was prescribed Tramadol/Zydol until 6 December 2011, being just before the fall. Endone was then further prescribed on 13 April 2012, as set out above at [384]. (footnotes omitted)
Her Honour was referring to evidence at trial ts 710 in a passage of evidence commencing at trial ts 709, as follows:
CLYNE, MR: … You see a third the way down the page the dates go from 9.2.'06 to 20.11.'06, so that would be when you got out of gaol? …
…
You've only got two pages, so about a third of the way down?---Yeah, 9.2.'06, yeah.
And then it goes to 20.11.'06?---Mm hmm.
After you got out. And then the second entry there is:
Lumbar pain, on Tramal, authority for Endone.
So again your pain, it seems you were telling Dr Dewing that you still had lumbar pain, low back pain, would that be correct? Did you have low back pain still?---Mr Clyne, I'm not really clear of that period of time but I - - -
Is there a reason?---No, I just don't really recall well, but I - it was kind of felt to me like it was annexed between restless leg syndrome and that and I - I could perhaps a little by saying that at periods later I would complain of restless leg and I recall the doctor saying on the telephone to somebody severe back pain or something when it really wasn't, so probably the doctor - - -
You told us something about the onset of that restless leg syndrome and I understood you to say that it came on shortly after your motorbike accident and that your girlfriend got it first and then you developed it, is that right?---That's correct.
So from about 1991, '92, is that what you're saying?---That's - we were in Sweden at the time and she started getting this problem and I don't recall when I got it but it was probably a year or so afterwards.
But when you were in Sweden?---Yes.
And had you told the doctors here about your restless leg syndrome in the ensuing years?---I don't recall. I think I would have, yeah. (emphasis added)
The above is a small passage of evidence in a lengthy trial in which the cross‑examination of Mr Moyes went for six days involving the canvassing of events going back many years, including in the context of assertions of pre‑existing injury[171] and numerous criticisms as to the veracity of his evidence. Her Honour went on to make detailed findings of events covering the period 1984 through to October 2017. Her Honour heard the evidence as it unfolded, observed the witness and was in a position to consider this aspect of the evidence in the entirety of the evidence as a whole. In this regard, the primary judge was prima facie better placed than this court to appreciate the nuances and tenor of the evidence on the topic of Mr Moyes' dealings with his medical practitioner in relation to obtaining prescriptions for Endone.[172] Moreover, having considered the transcript quoted in the preceding paragraph, we are not persuaded that her Honour's understanding of the evidence was not open to her Honour. Further, we do not accept Mr Moyes' submission that the judge should have 'stopped' the continuation of the cross‑examination by counsel for the respondents, particularly in the absence of any objection by senior counsel for Mr Moyes at the time. Accordingly, we do not accept the criticism of the primary judge in par 21 of Mr Moyes' written submissions referred to in [54] above.
[171] In relation to the contention of pre‑existing injury, see, for example, plaintiff's written opening submissions filed 27 September 2017, par 19.
[172] See, generally, Fox v Percy [23].
Moreover, even if there was merit in the submission that the judge denied Mr Moyes procedural fairness by not allowing him to finish his answer, the submission goes nowhere. There was no practical injustice. The matter complained of occurred in the course of Mr Moyes being cross-examined. It was well open to senior counsel for Mr Moyes to seek clarification and amplification of the truncated response in re‑examination.
For these reasons, we would dismiss ground 2 of the appeal.

Conclusion

The appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to the Honourable Justice Murphy
9 AUGUST 2022