Stephenson v Toms & Anor and Stephenson v Morabito & Ors

[2001] NSWCA 72

CITATION:	STEPHENSON v TOMS & ANOR and STEPHENSON v MORABITO & ORS [2001] NSWCA 72
FILE NUMBER(S):	CA 40914/99; 40916/99
HEARING DATE(S):	21 March 2001
JUDGMENT DATE:	5 April 2001
PARTIES :	Harold Stephenson - Appellant Jeffrey Charles Toms - First Respondent State Transit Authority of NSW - Second Respondent Harold Stephenson - Appellant Nicola Morabito - First Respsondent Jimmy Morabito - Second Respondent Nick Morabito - Third Respondent
JUDGMENT OF:	Mason P at 1; Sheller JA at 2

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	7886/99 8490/97
LOWER COURT JUDICIAL OFFICER :	Gibb DCJ

COUNSEL:	A McGuiness QC/D J Cochrane - Appellant K Andrews - Respondent (Toms) R Tonner - Respondent (Morabito)
SOLICITORS:	Southwell - Keely - Appellant Gillis Delaney Brown - Respondent (Toms) Holman Webb - Respondent (Morabito)
CATCHWORDS:	NEGLIGENCE - damages, quantum of - motor vehicle accident - plaintiff involved in a number of accidents - whether trial Judge correct in finding that much of the plaintiff’s suffering was due to a spinal degenerative disease rather than to the accidents - s79 Motor Accidents Act 1988 - whether trial Judge correct in finding that plaintiff failed to establish that their ability to lead a normal life was significantly impaired - held that the trial Judge’s findings were entirely open on the evidence.
LEGISLATION CITED:	Limitation Act 1969 Motor Accidents Act 1988
CASES CITED:	Devries v Australian National Railways Commission (1993) 177 CLR 472 Roberts v White (1999) 29 MVA 331
DECISION:	Appeals dismissed with costs.

CA 40914/99; 40916/99

DC 7886/97

MASON P

SHELLER JA

Thursday, 5 April 2001

STEPHENSON v TOMS & ANOR

STEPHENSON v MORABITO & ORS

The appellant had been involved in two motor vehicle accidents, one in 1978 and one in 1992. Negligence proceedings were commenced in 1992 in relation to both accidents. In both proceedings, the defendants admitted liability. The appellant sought damages for injuries suffered, including psychiatric and psychological damage, and for unfitness to work. In relation to the Morabito claim, the trial Judge awarded the appellant general damages of $25,000 plus interest. The appellant received $1,294 in the Toms proceedings. The trial Judge found that although the appellant had suffered back and neck pain throughout the 1980s, this was not caused by the 1978 accident, but rather by a diffuse spinal degenerative disease. The appellant challenged the quantum of damages in each decision.

: per Sheller JA (Mason P agreeing):

(1) A number of the grounds of appeal ignored the scope of appeal to this Court from a trial judge’s findings of fact based on the credibility of witnesses - Devries v Australian National Railways Commission (1993) 177 CLR 472, referred to.

In relation to the Morabito claim:

(2) The multiple grounds of appeal could be reduced to two essential points, either of which, if proved, would undermine the trial Judge’s conclusions.

(3) The first attack was against the trial Judge’s decision not to accept the appellant’s complaints of pain in periods where there was no contemporaneous medical or physiotherapy report. If the trial Judge had accepted these complaints, then a nexus between the 1978 accident and the appellant’s current condition might have been established. The second attack was directed to the trial Judge’s conclusion that the plaintiff suffered a diffuse spinal degenerative condition that was not due to the accident.

(4) However, as the appellant accepted, the trial Judge’s finding that the 1978 accident was not responsible for the appellant’s back pain could not be challenged on appeal. Given this, the only other possible cause of that pain was the spinal condition. The trial Judge’s finding that a degenerative condition rather than the accident was the cause of much of the appellant’s suffering was entirely open on the evidence.

In relation to the Toms claim:

(5) The attack was, again, largely focused on the trial Judge’s acceptance of the evidence that the appellant’s pain was due to a condition not caused by the accident, and failed for the same reasons as in the Morabito appeal.

(6) The trial Judge was correct in finding that she was bound, by Roberts v White (1999) 29 MVA 331, to interpret s79 of the Motor Accidents Act 1988 as requiring that a plaintiff establish that their ability to lead a normal life was significantly impaired by the accident as at the date of trial. It followed from the trial Judge’s conclusion as to the cause of the appellant’s pain that it was not open for her to award damages for non- economic loss.

1969

1988

(1993) 177 CLR 472

(1999) 29 MVA 331

ORDERS

Appeals dismissed with costs.

****

JUDGMENT

1    MASON P: I agree with Sheller JA.

2    SHELLER JA:

Introduction

These are appeals by the plaintiff, Harold Stephenson, against two decisions of Judge Gibb of the District Court given on 29 October 1999. The decision the subject of the second appeal was in proceedings the plaintiff brought against Nicola, Jimmy and Nick Morabito, respectively the driver and the two owners of a semi-trailer, which on 25 October 1978 collided with a vehicle in which the plaintiff was sitting. The statement of claim in the Supreme Court was not filed until December 1992. On 17 December 1993 Master Malpass granted the plaintiff an extension of time under s60G(2) of the Limitation Act 1969. The proceedings were later transferred to the District Court.

3    The decision the subject of the first appeal was in proceedings the plaintiff brought in the District Court against Jeffrey Charles Toms and State Transit Authority of New South Wales, respectively the driver and owner of a bus which on 6 November 1992 collided with a vehicle the plaintiff was driving.

4    In both proceedings the plaintiff sought to recover damages for injuries he had suffered in the collisions. In both proceedings the defendants admitted liability. In the Morabito proceedings the trial Judge found a verdict for the plaintiff and awarded him $25,000 for past general damages and interest thereon and no other damages. In the Toms proceedings the trial Judge found a verdict for the plaintiff and awarded him $1,327.08 damages for out-of-pocket expenses which was reduced by 2.5 per cent to $1,294 for contributory negligence. The trial Judge awarded the plaintiff no other damages.

Morabito appeal

5    It is convenient first to deal with the Morabito appeal. The trial Judge found that the plaintiff suffered from a diffuse spinal degenerative disease that was not traumatic in origin. That disease became symptomatic in the 1980s. It included retolithesis in his lumbar spine. By early 1992 the plaintiff was beginning to experience extensive pain. However, the cause of that was not a product of the 1978 accident. Judge Gibb said:

“I find that Mr Stephenson suffers from a progressive degenerative disease. It follows that the defendant is liable only if the 1978 accident triggered or otherwise rendered symptomatic a previously asymptomatic disease.
Mr Stephenson was ‘sore all over’ for a period after the accident. His neck was particularly painful and I accept Mr Audet’s evidence that after the accident Mr Stephenson sometimes worked standing up at a filing cabinet and complained about neck pain. Mr Stephenson had then suffered a soft tissue injury that restricted his movements [and] caused him pain and discomfort for some period after the accident. The problem continued until at least late 1979 when he saw Dr Ehrlich. Mr Audet left work in 1981.
Mr Stephenson had a recurrence of neck pain in 1983. That was temporary. Mr Stephenson’s correspondence - and lack of requests for continued medical attention - satisfy me that [the] 1983 neck pain was not a continuing or on-going problem. The lack of complaint to doctors between 1980 and 1982 raises the probability that the 1983 neck problem was not related to the 1978 accident.
Mr Stephenson’s neck pain was in abeyance for some years after 1983. He attended a social tennis club after work. He played occasionally. His colleague Ms Messmer did not notice any stiffness. He made no complaint of pain to his doctors. I find that the effects of the 1978 accident were exhausted significantly before 1985 when he started seeing doctors with complaints about back pain (among other things).
In mid 1985, Mr Stephenson met Ms Cable. She ‘liked people who were fit’. She thought that ‘he was trying to impress’ her. But she did not suspect that there was anything wrong with the person she met in 1985 and said she saw nothing indicating any significant discomfort in the beginning. Ms Cable observed an occasional neck rubbing in the early years of their relationship. She observed significant changes in late 1986 to mid 1987. Then Mr Stephenson’s health began to decline.
The decline in Mr Stephenson’s health since the mid to late 1980s is not a product, directly or indirectly, of the 1978 accident. He suffers from a diffuse spinal degenerative disease that is not traumatic in origin. That disease became symptomatic in the mid to late 1980s. He has retolithesis in his lumbar spine. There are constitutional degenerative changes in his cervical, thoracic and lumbar spine. There are changes at nearly every level in his spine. They are not traumatic in origin. They are not a consequence, direct or indirect, of the 1978 accident.”

6    The trial Judge said she preferred the opinions of Dr Potter, Dr Bornstein and Dr McGill to those of Dr Bleasel and Dr Carr. Dr Bleasel, Dr Ganora, Dr Smith and at times Dr McGill, her Honour said, all considered that the plaintiff’s degenerative condition had become symptomatic as a result of the 1978 accident. However, in her view, these doctors formed their initial assessments on incomplete and inaccurate histories including false premises about continuous complaints, treatment and attendance on medical practitioners and physiotherapists. She preferred the views of the doctors who had the advantage of studying the progression of the degenerative changes throughout the radiological records and the medical records including the lengthy periods of what her Honour described as, “silence”. She did not find that the plaintiff suffered or had suffered from any psychological or psychiatric condition as a result of the 1978 accident.

7    The plaintiff said that in 1978 both his back and his neck were injured. There were records of complaints about injuries to his neck but none about injuries to his back. An important issue between the parties turned on whether Mr Stephenson suffered any back injury or later pain as a result of the 1978 accident. Judge Gibb said:

“Mr Stephenson’s September 1993 affidavit in support of the application for leave to bring the proceedings did not make any reference to having injured his back in 1978. Mr Stephenson knew that the object of his affidavit was to persuade the Court that he was not fully aware as to the nature and extent of the injuries sustained in the 1978 accident. I do not accept explanation for the omission of any reference to back pain as being ‘an oversight’. In 1979 Mr Stephenson’s solicitors (White, Barnes and McGuire) had advised him that the extent of his neck problems probably was not sufficient to make a claim but he should wait and see what happened. I do not accept that he was silent about continuous back pain then and for years after having been told that complaints of neck pain alone did not raise anything sufficiently serious to found a claim.
The defendants deny that Mr Stephenson sustained any injury to his back in 1978. The defendants do not dispute that Mr Stephenson injured his neck, although they say that the injury had only a limited effect.
The plaintiff agreed that there is no pathological or radiological record indicating back injury in 1978.”

8    The trial Judge found that physiological changes apparent at the time of trial began some time before the accident though it was not certain when. In 1978 the plaintiff’s condition was asymptomatic. The accident caused the plaintiff an immediate pain which he had not previously experienced. The plaintiff said the pain had been continuous and unremitting. His counsel submitted that this provided the link between the disabilities and the accident. However, Judge Gibb said that the records did not bear this out. The case was not one where the consequences of the injury were exacerbated, overtaken or overwhelmed by later injury and disability. It was a case where injuries and disabilities were exhausted possibly before May 1983. The plaintiff complained of neck pain in 1978 and 1979, that is for some months after the accident. He saw his doctor and had some sessions of physiotherapy. The medical records were silent between late 1979 and early 1983 when the plaintiff complained of a “recurrence of neck pain” nearly five years after the accident. The trial Judge expressed some doubts about the provenance of the 1983 complaint of neck pain. At the time the plaintiff attributed it to the accident in correspondence with his employer’s workers’ compensation insurer. Her Honour said that the contemporaneous x-rays showed degenerative changes. In her view, the probability that the 1983 pain was a result of the accident was less than that of its not being so. She said:

“But there is a degree of uncertainty about this. There is no such uncertainty about the provenance of the post-1985 complaints. They have no nexus with the 1978 accident.”

9    Her reasons for judgment continued:

“There is no contemporaneous medical record of any complaint of pain between mid-1983 and mid-1985. Then in late 1985 to 1987 (seven to nine years after the accident) his complaints increased in scope, type, volume and intensity. He started seeking medical assistance with increasing frequency with complaints about his knees, his back, his neck and other problems. In my view, for the reasons discussed below, the natural and probable consequence of the defendants’ breach of duty exhausted themselves some time before Mr Stephenson saw Dr Crichton in 1985 and the upsurge of complaints recorded in medical records in 1985.
I have reviewed the complaints and medical records throughout the twenty year period in some detail to determine whether there is any link between the later developing deterioration and disabilities. In my view these do not have their genus in the 1978 accident. By the time that Mr Stephenson began seeing doctors in 1985 the effects of the accident had been spent. The position is thus different from that in Jobling v Associated Dairies Ltd [1982] AC 794. In this case there was no subsisting consequence of the 1978 accident when the congenital conditions became symptomatic. There were no latent consequences of the accident that manifested later. The accident had no causal relationship with the later medical condition. It did not trigger the degenerative changes that have developed since.

10    Judge Gibb undertook a thorough examination of the medical evidence about the nature and cause of the plaintiff’s condition. There was evidence that if he was suffering from diffuse spine degeneration through the whole of the spine the cause of that condition would not be traumatic. Dr Potter, a rheumatologist, retained by the defendants, in a passage the trial Judge quoted, commented during cross-examination:

“As far as I can tell, this man may well have had an injury in a motor vehicle in 78 but his first x-ray five years later showed minimal change, minimal change meaning common for age. Thereafter, there is a patchy progression until finally all spaces are involved. If the motor vehicle accident had caused this pathology, how can it be that every disc level is involved? How can it be? It is a uniformed process and how can it be that it involves C1-C2 to S1-S2 inclusive. It doesn’t compute. It doesn’t follow. It is not possible for the speculation.”

11    Furthermore, there was evidence that if there was a delay in the onset of complaint of pain beyond three months it was reasonable to say that there was no nexus between an event such as a motor vehicle accident and spinal injury.

12    The trial Judge accepted the plaintiff to be an honest man. She said:

“Mr Stephenson recalls himself as having been in constant - and unremitting - pain for nearly two decades. I accept that he now believes what he reports as his history and he sees himself as having been taken over by pain for years. However the reality is otherwise. There are long periods where people in regular contact with him noticed nothing out of the ordinary about his movement and he saw no doctors. I do not accept that he was an accurate historian in his testimony (however accurate he may be in his consultations with his doctors).
I have preferred the contemporaneous medical records - including the periods of silence - to Mr Stephenson’s testimony. I do not accept that he was in constant and unremitting pain for years without seeking any medical assistance. Nor do I accept that he was so selective in his reporting to doctors that he failed to mention pain when he was discussing other issues.”

13    The following summary of the plaintiff’s condition as it developed and his complaints is taken from the reasons for judgment. Before the 1978 accident there was little evidence about the plaintiff’s condition. One co-worker described him as a quiet person and a slow mover, albeit a fit person. After the accident the plaintiff said that he was sore all over. He declined to go to hospital. He said that when his neck pain had not settled down he visited Dr Phoon at Summer Hill who organised x-rays. Dr Phoon said the injury was “soft tissue damage which would repair itself in time”. By December 1978 his pain had subsided. In August 1979 he saw solicitors, White Barnes & McGuire. They advised against claiming damage “at this stage as the anticipated result in monetary terms would not be great”. They told him that he would need to lodge a claim before 25 October 1984. In a workers’ compensation claim lodged in 1983 the plaintiff referred to “an ongoing neck injury sustained in a motor car accident on 25 October 1978”.

14    At the trial the plaintiff said he had continuous pain in his neck and back since the accident. The plaintiff made no mention to Dr Phoon of back pain. In 1992 Master Malpass, on the application for an extension of time, said that the plaintiff began to suffer headaches in 1992. No reference was made to back pain. The co-worker, Mr Audet, noticed only that the plaintiff was concerned about neck pain, not back pain. He described him as going from being a very cheerful person to a person who was withdrawn. “….when we had functions he never stayed around very much, very long”. His movements had slowed up dramatically. Instead of sitting at his desk to do his day’s work, he made a habit of standing at a three tier filing cabinet. This, the plaintiff said, he did because he found it was less pressure on his neck. Mr Audet considered the plaintiff was distressed at all times. Mr Audet left the common place of work in 1981 and thereafter saw the plaintiff only occasionally.

15    At the trial, the plaintiff said, that the neck and back pain persisted and progressively became worse from 1978 through to the 1980s. His back pain became constant and was there every day of the week, probably from the early 1980s. Since then he said it had always been present at a low level of pain overshadowed considerably by the neck pain.

16    Another work colleague, Ms Messner, recalled the plaintiff as having been very agile before the accident. She recalled the plaintiff wearing a neck brace and noted that he used to stand up at his filing cabinet and work because his neck was bothering him. She did not notice any stiffness about his neck though he said his neck was sore. She did not recall constant complaints. When asked by her what the doctor said, the plaintiff said: “Well the trouble is, nothing is showing on the x-ray and they are saying, you know, they can’t see anything.” That was many years before Ms Messmer left in 1987. She did not notice anything about his bodily movements that would indicate he had a problem with his neck.

17    In May 1983 the plaintiff complained to Dr Phoon of “recurring neck pain”. He claimed the cost of some “further treatment” by Dr Phoon in respect of an on-going neck injury. Although the plaintiff knew that he had until October 1984 to bring a claim and that he had been advised in 1979 that it was not then worth pursuing, he did nothing about re-visiting the advice or assessment. Both Mr Audet and Ms Messmer commented that in or about 1988 the plaintiff was entirely different from “how he was by the time of the hearing”.

18    In mid-1985 the plaintiff met his partner, Ms Jill Cable, at an evening tennis club. Both attended to play tennis after work on a round-robin arrangement. The plaintiff played occasionally. Ms Cable described the plaintiff as “very outgoing”. His general demeanour was “much more relaxed than now”. She recalled “he was always laughing, yes he had a lot of friends around him”. About twelve months after they met the plaintiff started going to aerobics at the Harbord Diggers Club. He found his back was painful and ended up going for saunas instead. From about 1986 he saw Mr Neil Munro for manipulative physiotherapy. According to Ms Cable the plaintiff’s physical capacity was reduced so that he could not join in any of the activity shortly after 1987 or twelve months after that. In August 1987 he sought her assistance when he was unable to move because of pain. After 1987 he did not play many of the sports that she did. He found the physiotherapy of little assistance. His back pain continued at a low level unless he did something which caused it to increase. Between 1987 and 1990 his neck and back pain continued at levels similar to those he had experienced earlier.

19    In August 1989 the plaintiff applied for a new job with Alcan Australia Limited. He was certified to be “medically fit” after a pre-employment health assessment by an occupational health nurse on 2 August 1989. On the employment application form, asked whether he suffered “from any physical disability, allergy or other medical condition which” might “limit” his work performance, he answered “no”. From about 1989 a work colleague at Alcan, Mr Paul Sidari, saw the plaintiff almost every day and did not observe anything unusual about any of his movements. In Mr Sidari’s view, the plaintiff “moved normally around the office”, seemed to enjoy his work and attended social functions such as company golf days and meals afterwards. He did not play golf.

20    The plaintiff reported that his neck pain increased dramatically in about 1991. Headaches became a really big problem. He suffered from light headedness and dizziness and could not move his neck sideways.

21    The motor vehicle accident, the subject of the Toms proceedings, occurred in November 1992. Judge Gibb said:

“In December 1992, Mr Stephenson summarised his perspective of his position in a statement:
‘I had to live with the neck pain which eventually settled down to a degree beyond which it never improved. The level of pain was such that I could go about my normal activities but I had to be careful what I did because vigorous movement worsened the condition. This meant that I had to give up all forms of sport and not drive for long periods of time as certain postures also worsened the condition. Over the years I learnt to live with the pain and I guess my tolerance to pain became greater than that of other people and therefore I managed to get by. However in recent times, the beginning of 1992, the pain increased and I began getting headaches. I saw a GP, Dr Ward of Collaroy, who referred me to a specialist physiotherapist who dealt with spinal problems. The physiotherapist was Neil Munroe of Dee Why. Extensive treatment by Neil Munroe did not improve my condition although it did stop the headaches. Because of this Dr Ward referred me to a rheumatologist, Dr Carr of Manly [in June 1992].
Ms Cable noticed that Mr Stephenson rubbed his neck from time to time from the beginning of their relationship. But she recalled that until late 1992 he was very outgoing and ‘more happy, more sort of excited about life I suppose’. Ms Cable recalled that Mr Stephenson ‘got worse after the accident’ but after a space of a short time ‘there wasn’t a huge difference’ from the pre-accident position. Then as time drew on his neck became less mobile and he ‘seemed more stooped than before’.
Since 1993 she has observed a marked deterioration in his health. After this Ms Cable observed that he gradually ‘was becoming more irritable, his headaches becoming more constant, his neck stiffened up. He was more stooped.’
In 1994, Capral Aluminium [formerly Alcan] moved its headquarters to Granville from the centre of Sydney City. When he met with Mr Shoulder [at that time a registered psychiatrist] on 31 August 1994, Mr Stephenson complained that the 43 kilometres drive to work in bad traffic was a ‘big problem’. The drive took about 1¼ hours each way, and sometimes took as long as 2 hours. Mr Stephenson said that when he got out of the car he was stooped over to the point that it took between 20 minutes and half an hour before he could stand upright. Mr Sidari noticed that Mr Stephenson’s behaviour in the office changed after this.
‘Q. Well what is your first recollection of observing him and his altering his demeanour or the way in which he went about his work? A. I think it was when we actually moved to Granville that there seemed to have been a bit more of a change.
Q. Well what change did you observe? A. Well he seemed to complain more about that he had difficulties getting to work with the long distances, travelling from where he lived at Brookvale and moving to Granville.
Q. Whilst he was at the work station, did you notice did he sit down very much, or did he stand up a lot of the time? A. No, at Granville he seemed to be standing up more often than sitting down.
…
Q. Well then tell us about his performing his work, what you observed of him? A.. Well when we first moved there he sort of stood up at this little work area and he seemed to be performing his work normally, and then it was only after some time that he then started complaining about you know, having problems, getting to work and complaining of pain [in his back and neck].’
Mr Stephenson testified that his back pain became a severe permanent feature at about this time - probably about ‘four years’ before the trial.”

22    By then he had been involved in three further motor vehicle accidents. He said that he deteriorated quite rapidly in the four years from 1994/5 to the date of hearing. By 1997/8 Mr Sidari observed that the plaintiff:

“was getting to work more late or later, and he was having problems. He was saying that the problems arose that he had pain and therefore he couldn’t get, he had to sort of have a bit of a time to compose himself before he could get to work. …..
He walked as though he was crouched over and he did complain that when he used to walk in that he had a rough trip in the mornings, or that he was in pain.

23    By August 1998 the plaintiff noted in his daily pain diary that “lumbar pain is now a permanent feature of my condition and this was particularly bad today”. At about this time he stopped driving to his mother’s home and mowing her lawn. In August 1998 he went on sick leave and in October 1998 left his job with Capral Aluminium. He has not worked since. Her Honour said:

“Videos of his activities at home show him slightly stooped, but able to walk and move around for prolonged periods attending to routine household matters. He moves slowly, and with a consistent stoop. But he is able to drive, catch ferries; carry ordinary household items including retail shopping bags. He is able to push a child’s stroller (with child) for prolonged periods - sometime with only his left hand whilst carrying a bag in his right. He is able to maintain a degree of activity - albeit at a slow and regular pace - for substantial periods of time.”

24    The plaintiff’s complaints of neck pain from October 1978 to October 1992 were according to the trial Judge as follows. After the accident he informed his employer that he had suffered a neck injury in the accident. On 30 October 1978 he saw Dr Phoon who reported that he had a “painful neck”. He saw Dr Phoon again in January 1979 and on his direction saw a physiotherapist, Robin Reid, in January for his cervical spine. In August 1979 Dr Phoon referred him to Dr Ehrlich about “continuing problems” with his neck. No report was tendered. The plaintiff said he was referred to an orthopaedic surgeon whose name he had forgotten who confirmed Dr Phoon’s diagnosis of soft tissue damage. Consideration was given to a manipulation under anaesthetic but the plaintiff was not willing to undertake that therapy.

25    After 1979 there were no medical records until 11 May 1983 when Dr Phoon reported that the plaintiff had “recurring neck pain” and certified him absent from work for seven days. Dr Darrel Sargeant reported on x-rays of the plaintiff’s cervical spine. There was no evidence of bony injury seen. There was slight encroachment on the right exit canal at the C3/4 level due to a small neuro central osteophyte and there was minimal encroachment of the left exit canal at the C5/6 level. The range of flexion/extension was slightly limited and there was tilting of the spine to the left, probably due to muscular spasm. No other bone or joint lesion was seen. The plaintiff’s treating rheumatologist, Dr Gregory Carr, conceded that the changes reported on the 1983 radiology report were consistent with degenerative changes. He was not prepared to estimate whether the changes would have taken more than five years to develop. Dr Smith concluded that the osteophytes were likely to have formed before the 1978 accident.

26    In August 1985 the plaintiff saw Dr Wilson about stomach problems. He reported he had a long history of troublesome constipation requiring use of laxatives and severe pain associated with the left upper quadrant of his abdomen. He was diagnosed with spastic irritable colon syndrome. On 17 August 1987 the plaintiff told Dr Wilson that apart from the bowel problem and abdomen pain his general health otherwise was good and there was no history of serious illness in the past. The trial Judge observed:

“Mr Stephenson now says that he was silent about things that were not related to the bowel problem because he addressed only the concerns within Dr Wilson’s speciality. I do not accept that evidence.”

27    Between 1987 and 1991 he did not see any doctors. He said that from about 1991 he had increasing headache problems and started to experience chest pain. He was treated for this in November 1991. Both Dr Carr and Dr Smith (in July 1996) considered that the chest pain was attributable to the spinal problems. In January 1998 Dr Carr reported that the plaintiff had coronary artery disease. In early 1992 the plaintiff consulted Dr Ward about neck pain and was referred for physiotherapy. The physiotherapist, Mr Munro, noted back pain after aerobics in his history.

28    The trial Judge said:

“Dr Bleasel considered that there was a reasonable link between the onset of severe neck pain in late 1991 with the 1978 accident because of the likelihood that arthritis would develop in the neck joints as a result of the 1978 injury. However, his opinion was qualified by the inaccuracies in the history given to him and the lack of comprehensive radiological records and data. I do not accept Mr Stephenson’s testimony that the pain was continuous.”

29    In February 1992 Dr Stokes of Dee Why X-Ray and CT examined the plaintiff’s cervical spine and reported:

“The alignment of the cervical spine is satisfactory. Flexion extension views show restricted movement in the lower cervical spine. There are marked degenerative changes at the C6/7 level where there is narrowing of the disc space, prominent marginal osteophyte formation and significant bony narrowing of the exit foramina particularly on the right side.
There are also minor degenerative changes elsewhere in the cervical spine and there is some bony narrowing of the C3/4 emit foramen on the right side and the C4/5 exit foramen on the left side.
No other abnormality seen in the cervical vertebrae or appendages.
COMMENT
Degenerative changes in the mid and lower cervical spine particularly marked at the C6/7 level.”

30    In 1992 the plaintiff was referred to the rheumatologist, Dr Carr. The referral related specifically to “chronic neck problem (see x-rays) getting worse over past 15 years (MVA)”. There was no reference to thoracic or lumbar spine.

31    On 29 July 1992 Dr Carr reported that for the last six months the plaintiff had been troubled by a change in his neck symptoms and had developed headaches. The plaintiff made no mention of any pain or problem with his lower back. Dr Carr remarked that the plain x-rays showed marked degenerative change at the C6/7 level when performed in February 1992.

32    The plaintiff first sought medical attention for his lumbar spine in 1986 when he was sent for physiotherapy. In the medical records the first reference is on 7 August 1986. This related to an investigation for kidney stones. One of the plaintiff’s experts, Dr Smith, commented that:

“If he has no backache after the first accident and that is the first time he gets back pain then it is too far to have a nexus. …..
Again, particularly if it is a sudden onset but if, on the other hand, there is no pain before the accident then niggly pain or continuity of niggly pain that suddenly becomes worse, you can’t claim nexus. To eliminate nexus you have to establish there is no pain. If there is no pain then there is no nexus.”

33    Dr Potter found it “extraordinary to link the episode of 1978 to an episode nine years prior unless there was a symptomatic continuum”. Dr Potter was referring to a link between a sudden onset of back pain in August 1987 and the episode of 1978. In Dr Carr’s report of December 1992 on the plaintiff’s condition before the November 1992 accident, there was a brief reference to back pain. However, this may have been an error because he said he did not recall having a record of the plaintiff having back pain until after the 1992 accident. Dr Potter commented that:

“The film in [October] 1992 at that stage showed C2/3 C3/4 C4/5 just on the osteophytes and facet joints, and the CAT scan showed in addition C3/4, C4/5, C6/7. If I count that up C2/7, discounting C1/2, that’s every level of the spine involved progressive up to 1992.”

34    The trial Judge said that Dr McGill agreed that a marked change in pain level and symptoms in the beginning of 1992, including the development of headaches, could have marked the point at which constitutional changes took over. Dr Smith agreed that a severe increase in pain in October 1992 could have been the commencement of the symptomatic condition of the plaintiff’s degenerative spine if there was no pain before. Dr Ganora considered that as at October 1992 the plaintiff had advanced degenerative changes in his cervical and lumbar spine. In a report of 23 December 1992 Dr Carr opined that the plaintiff’s symptoms resulted from the motor vehicle accident in October 1978. There was no obvious disc change that would suggest the diffuse process of cervical spondylosis.

35    Following the accident on 6 November 1992 the plaintiff was x-rayed. Dr Lingard reported that advanced degenerative changes were noted in lower cervical region particularly C6/7. Questioned about whether the radiological reports at that date were consistent with degeneration, Dr Potter said:

“Nothing is out of kilter. This man has a degenerative condition that is uniform. The report is taken out of context because you are taking one picture out of the sequence. Looking backwards, I already know his MRI proves he has got disc degeneration at every level, and we already have the x-ray report of 87 telling us that margins of most of the vertebral bodies have spondylotic, osteophyte formation. Conclusion: The man has every disc space involved in his lumbar spine degenerative change. He has his thoracic spine involved. Hyperostosis. He also has his lumbar spine involved. So he has skeletal hyperostosis as well as having disc degeneration.”

36    Dr McGill and Dr Potter were both of the opinion that the effect of the 1992 accident was probably temporary, lasting a few weeks. This was consistent, so the trial Judge said, with the report of discomfort across the low back some days after the accident that improved within about a month. In March 1993 the plaintiff told Dr Carr that he had low back pain on exertion but not generally when resting. On 1 April 1993 he completed a motor accident personal injury claim form for the November 1992 accident in which he listed relevantly his injuries and disabilities from the accident as being whiplash injury to his neck, severe bruising on his forehead, bruising on his left knee and laceration to his left hand. He made no mention of his back. Nor was there any mention of back injury in the “particulars of injuries and continuing disabilities” listed in the statement of claim issued on 31 March 1994. He was involved in two further motor vehicle accidents, one in September 1993 and the other in April 1994. Apparently, his injuries, such as they were, were minor and were not claimed to have any lasting effect.

37    In 1978 the plaintiff had been driving up to 30,000 kilometres a year as part of his work. He continued to do this for many years and was still driving more than 33,000 kilometres a year in December 1997. In 1994 his workplace move which increased the length of his trip to and from work. There was medical evidence that driving could exacerbate his back problems. Certainly by late 1994 there was medical opinion that changes noted in the spine were degenerative. Dr Ganora observed that x-rays taken on 4 November 1994 confirmed degenerative retrolithesis of L4/5, L3/4 and L2/3. Both the plaintiff and Dr Carr were less confident of the nexus between the 1978 accident and the plaintiff’s back pain. After a meeting on 8 November 1994 the plaintiff sent a facsimile to Dr Carr noting that:

“Following on from our discussions this morning I advised Tim Southwell Keely, solicitor, that there was no mileage to be gained in pursuing the condition of my lumbar spine as far as his legal proceedings were concerned.”

38    The degenerative lumbar disc disease was aggravated by prolonged driving. Thereafter the plaintiff’s condition worsened aggravated by incidents working in his garden in September and December 1995. He saw Dr Donaldson on 27 August 1996. Dr Donaldson reported that the plaintiff continued:

“to suffer the effects of generalised arthrosis of the spine. He has become increasingly stiffer over the last two and a half years ….. He demonstrates the natural history of diffuse idiopathic skeletal hyperostosis.”

Dr Donaldson reported that the effect of the aggravation that his spine suffered when he was injured on 6 November 1992 had resolved.

39    After examining the plaintiff on 28 August 1997 Dr McGill, concluded:

“This fifty four year old man now has evidence of degenerative spinal disease involving the facet joints throughout the cervical spine, the C5/6 disc, degenerative spondylosis throughout the thoracic spine, and degenerative spondylosis with disc space narrowing throughout the lumbar spine. He dated the onset of his symptoms to immediately after the motor vehicle accident he experienced in 1978. As detailed by Dr Carr who saw him in 1992 prior to the second motor vehicle accident, his symptoms had progressed significantly over the preceding twelve months. He today reported that his symptoms have continued to progress since the late 1980s or early 1990s and that progression continues.

In light of the extremely widespread nature of the changes in his spine, I think it is likely that his constitutional predisposition to the development of those degenerative changes is the primary cause of the changes now present. The motor vehicle accident in 1978 appears to have first caused his spine to become symptomatic and that injury may have accelerated the degenerative changes which have subsequently become obvious. He reported that after the second motor vehicle accident he experienced a flare of his spinal symptoms. His symptoms however had been deteriorating substantially over the prior twelve months and his x-rays had demonstrated considerable deterioration between 1983 and 1992. There has been a further subsequent deterioration at a rate entirely consistent with the natural progression of the degenerative changes that were present prior to the second motor vehicle accident in 1992.”

40    Dr McGill diagnosed “diffuse degenerative spinal disease (including spondylosis, degenerative disc disease, facet and neurocental joint osteoarthritis)”. Dr Bornstein, who examined the plaintiff on 29 August 1997 concluded that he had “multi-level degenerative disease in the spine, including the whole of the thoracic, the lumbar and some of the cervical spine.” Dr Bornstein said:

“Given that this is a single disease process which is probably constitutional and upon which have been superimposed the effects of two motor vehicle accidents, I do not however consider that either of these two accidents have played a significant part in the development of this condition, but rather that they have played a part in producing symptomatology as far as the condition was concerned.”

41    The trial Judge said:

“The plaintiff called Dr McGill. In his view, the majority of the changes in Mr Stephenson’s spine are constitutional and the primary cause of his cervical problem is the degenerative constitutional changes. Initially Dr McGill considered that the 1978 accident might have contributed to the condition of Mr Stephenson’s spine. He considered that it is:
‘possible that injury could have contributed to those degenerative changes at the time, even if that pain subsequently settled to a level where it was overshadowed by other things or had essentially gone away.’
However, that view rested upon the assumption that Mr Stephenson had injured both his neck and his back in the 1978 accident and suffered pain from both continuously. Dr McGill commented that:
‘it is clear that the accident could not have produced all the changes. They are widespread throughout the spine. But in terms of trauma being the cause it is clear that could not be the case. In terms of constitutional, yes, it could. It is possible that the 1978 accident did not have any effect on the x-rays but I can’t differentiate after many years whether a trauma in the distant past could have contributed to change at least on some of those levels on the basis of the history he provided that the pain started at that time and continued. I thought it reasonable to conclude that some of the changes could have been related to that accident.’
Dr McGill did not see much difference between the condition of Mr Stephenson’s thoracic and lumbar spines. He opined that the ‘cervical and lumbar spine changes were a little more extensive than the ones in the thoracic but fully uniform throughout’. In Dr McGill’s view the condition:
‘is not explained in its entirety by previous trauma and I think because of the widespread nature of the changes, if you have a traumatic lesion on a previously normal spine then usually the lesions are at one particular level, sometimes two levels, but not multiple levels. This is 1987 to 1978, so nine years after the accident. I can’t say whether the accident nine years earlier could have aggravated these changes. I can say they are not primarily due to the accident. But I could not say it would have played a part.’
In Dr McGill’s view, if Mr Stephenson did not report low back pain in the days and weeks after the 1978 accident, then ‘the entirety of the changes in his lumbar spine are constitutional’. He agreed that the constitutional changes in Mr Stephenson’s lower back are about on par with the constitutional changes in Mr Stephenson’s neck. In Dr McGill’s view it is possible that all Mr Stephenson’s problems in his neck and back are constitutional changes and the effect of the 1978 accident has ceased.
In July 1998, Mr Stephenson saw Dr Bornstein again. He noted that investigations of Mr Stephenson’s cervical spine and lumbar spine in August 1997 showed:
‘significant degenerative changes in the lower cervical spine with marked reduction in disc space and basically the entire lumbar spine is affected by degenerative change.’
Dr Bornstein concluded that Mr Stephenson had a multi-level degenerative disease, which is gradually progressive. He concluded that the degeneration was not caused by either the 1978 or the 1992 motor vehicle accidents and is ‘constitutional in origin in its entirety’. The motor vehicle accident impinged on Mr Stephenson’s various discomforts and problems ‘only peripherally by stretching stiff area and producing symptoms without progressing the condition.’ ”

42    Turning to Dr Potter, Judge Gibb said:

“In October 1998, Dr Potter examined Mr Stephenson and his medical record. Dr Potter considered that Mr Stephenson may have sustained temporary jarring blows from each of the accidents. But the accidents had not caused the pathology. There has not been any focal evidence of trauma or focal degenerative change or focal worsening. Mr Stephenson’s complaints can be explained by the natural history of his underlying spinal disease. Dr Potter concluded that:
‘This is not the pattern of chronic soft tissue injury, this is not the pattern of focal thoraco lumbar strain, this is the pattern of a progressive arthritis, multi level, multi segmental and this pathology clinically and radiographically does not occur post-MVA though of course might have had temporary strain.
DIAGNOSIS: Diffuse cervical degenerative disease.
Diffuse lumbar degenerative disease with multi level degenerative involvement and chiefly hyperostotic lumbar spine and widespread disc degeneration with multi level facet joint change in the neck and no complicating neurological changes.
I get the distinct impression this man has anxiety syndrome.’
Dr Potter observed a pattern of progressive multi-level, multi-segmental disc degeneration in the back and neck and concluded that Mr Stephenson has progressive spinal disease. He reviewed:
‘either the x-rays or most of the reports from 1983 through to 1999 and the evidence is that every level from C2 to S1 is involved in a degenerative change’ that is, some degenerative change at every level to some degree. Therefore there is a continuum of pathology over 20 years [that has been progressive].’
He concluded that the pathology shown radiologically and therefore the natural history that had led to the pathology would not have resulted from motor vehicle accidents. His assessment was that the 1978 accident made ‘nil apportionment’ to Mr Stephenson’s problems with his cervical spine. Dr Potter’s conclusion rests upon his view that diffuse degenerative change does not result from motor vehicle accidents.
Dr Potter’s assessment also rests upon the history he took and the continuum of clinical and radiological records. He concluded that:
‘A. Clinically and radiographically this has a continuum of all spinal levels involved.
Q. Continuum of what? A. Degenerative disease of top level or cervical and thoracic spine and all levels of lumbar spine. There is no way trauma or motor vehicle trauma can cause that degree of change. But equally I took the history from this gentleman on both accidents and my record is that this man did not have major time off work, did not seek drastic hospital interventions, did not have a fracture, did not have dislocation, did not have disrupture, did not have nerve root compression. In fact [he] had very little to show for what was otherwise a normal jarring spine. I had to conclude that it was limiting and quite brief.’
Dr Potter expected a steady deterioration in the next two decades, because that is the natural history of that process in the neck and back. He considered that Mr Stephenson was reasonable to complain of neck pain and stiffness, back pain and stiffness because of progressive degenerative disease. Dr Potter recommended that Mr Stephenson required reassurance, counselling and home exercises without analgesia.”

The trial Judge said that Dr Smith noted that there were diffuse changes of moderate degree at every level of the plaintiff’s spine.

43    Her Honour referred to the evidence of Professor Bogduk called by the plaintiff. He agreed that the radiology investigations showed spondylitic changes at every level of the vertebra in Mr Stephenson’s lower back. His views were opposed to those of Dr Potter. The trial Judge said:

“With no disrespect to him, I did not find that Professor Bogduk’s testimony or views were of assistance in determining the plaintiff’s claim. I have preferred the more orthodox medical evidence to that of Professor Bogduk where there is a conflict. However, in the circumstances of this case the conflict between the various schools of medicine is more theoretical than real.”

She referred to a question by the plaintiff’s counsel to Professor Bogduk about whether, on the balance of probabilities, it was more probable than not that the 1978 accident could have been the cause of the plaintiff’s condition. Professor Bogduk said:

“The balance of probabilities, overall, no, I think there’s more chance that something else - that those features reported are attributable to something else rather than an injury. That is not to say they couldn’t possibly be due to an injury but there is no basis for anyone concluding that that is an indicator of injury. Possibly yes but on the balance of probabilities - you can’t say yes on the balance of probabilities.”

44    The trial Judge did not find that the plaintiff suffered from any psychological or psychiatric condition as a result of the 1978 accident. Since the appellant did not press his appeal against this conclusion it is not necessary to say anything about the psychiatric evidence the plaintiff relied on.

45    The notice of appeal with appointment contained thirty-five grounds. Grounds 13, 14, 25 and 27 to 29 inclusive were not pressed. Many of the grounds were expressed in terms that ignored the scope of appeal to this Court from a trial judge’s findings of fact based on the credibility of witnesses; see generally, Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. This tendency extends into the appellant’s written submissions. Part of these were directed to the trial Judge’s description of the plaintiff’s condition as “congenital”, a description not used in the medical evidence. In the Morabito appeal her Honour attributed this word to the defendants’ submissions. She thereafter used it, I think no more than twice, early in her reasons for judgment. In her conclusion which I have quoted she used the word “constitutional”, an equivalent word used in the medical evidence, that is to say, belonging to or inherent in a person’s constitution of body or mind. Thus in passages which the trial Judge quoted and I have quoted, Dr McGill said he thought it “likely that his constitutional predisposition to the development of those degenerative changes is the primary cause of the changes now present”. Dr Bornstein referred to “a single disease process which is probably constitutional”. So far as I can see the trial Judge did not use the word “congenital” in the Toms judgment. In the context of these proceedings and the nature of the plaintiff’s claim, the use of the word “congenital” has no significance whatever.

46    The grounds of appeal that the appellant pressed were grouped as follows; first, grounds 1, 6-9 inclusive, 12, 15, 16, 17 and 23. These grounds were directed to the trial Judge’s findings about the nature of the plaintiff’s condition, her acceptance of Dr Potter’s evidence, her failure to find a causal connection between the 1978 accident and the plaintiff’s condition and her finding that the effect of the injuries from the 1978 accident were exhausted by May 1983, mixed in with assertions that the trial Judge failed to understand the medical issues. The second group consisted of grounds 3, 4, 5 and 26, grounds which in summary asserted that the trial Judge failed to understand the radiological evidence. The third group was grounds 10 and 11 directed to her Honour’s failure to find that the plaintiff’s condition was asymptomatic before and symptomatic after the 1978 accident. The fourth group, grounds 18 to 22 inclusive and 24 asserted the trial Judge applied too high a burden of proof on the plaintiff, failed to accept corroboration of the plaintiff’s evidence and failed to accept the plaintiff’s evidence and that of Dr Bleasel. The fifth group consisted of ground 2 directed to the insufficiency of the award of general damages.

47    As the matter was argued by Mr McInnes QC, who appeared for the appellant, two points were made on liability. If either were correct, the logic of the trial Judge’s conclusions would be substantially, if not fatally, undermined. The first line of attack was against Judge Gibb’s not accepting the plaintiff’s complaints of pain when there was no contemporaneous medical or physiotherapy record of complaint. Mr McInnes submitted that the absence of complaint to doctors was explained by their advice to the plaintiff that there was nothing they could do to alleviate his pain or remedy his condition. The argument was put in the rather extreme terms that, were it otherwise, a plaintiff who suffered pain over a period of years would be required, in order to recover damages from the person responsible, to report regularly to a doctor and complain about the pain.

48    The reason why this argument is important is that if the trial Judge had accepted the plaintiff’s evidence about continuing pain in his neck and back after the 1978 accident there would have been arguably a nexus between the 1978 accident and the condition from which the plaintiff suffers. The medical evidence enabled the trial Judge to find that there was no such nexus if after 1978 there were prolonged periods when the plaintiff did not suffer pain in either his neck or back.

49    The second line of attack was directed to the conclusion that the plaintiff suffered a diffuse spinal degenerative disease that was not traumatic in origin. The medical evidence in support of this conclusion was that of Dr Potter amongst others. His evidence was that the plaintiff had disc degeneration at every level. During cross-examination by the plaintiff’s counsel, Dr Potter said, after the passage already quoted of “patchy progression until finally all spaces are involved”:

“Q. So you say in 1978 when this accident did take place, that it is most likely on the probabilities that Mr Stephenson didn’t have any degeneration then? A. I can’t answer that. All I can say is, looking backwards, there is a far more rational, far more biological logical explanation for this man’s complaints. Otherwise, I have to invoke to the judge three or four separate pathologies. Why would the man have universal lumbar pathology? Why would he have universal thoracic pathology and why is every level of the spine involved. How can that all be due to a motor vehicle accident. It is not possible.”

50    The thrust of the submission was that Dr Potter was in error in concluding that there was disc degeneration at every level. We were taken to various radiology reports to suggest that this was not so and certainly not so in respect of the thoracic spine.

51    Mr McInnes conceded that the appellant could not challenge on appeal the trial Judge’s findings that the 1978 accident was not responsible for the plaintiff’s back pain. As Mr Tonner, who appeared for the defendants, submitted, if it was accepted, in accordance with her Honour’s findings, that there was no nexus between the 1978 accident and the plaintiff’s back pain, the only candidate as a cause of that pain was a diffuse spinal degenerative disease that was not traumatic in origin. Further the trial Judge’s finding that the plaintiff did not suffer from back pain until the mid or late 1980s, not now challenged, was contrary to the plaintiff’s evidence. In addition the trial Judge’s conclusion about the cause of the condition of which the plaintiff complained at the time of the trial was not based on Dr Potter’s evidence alone. It was supported by other medical evidence, notably that of Dr McGill and Dr Bornstein.

52    In my opinion, particularly taking account of the fact that her Honour’s findings about back pain are not challenged, it was open for her Honour to conclude that the plaintiff did not suffer from continuous pain either in his neck or his back after the accident in 1978. The lack of medical records was an appropriate matter to take into account in coming to this conclusion. But her Honour reviewed the evidence as a whole and saw the plaintiff in the witness box together with other lay witnesses who gave evidence about the complaints he made in the workplace. She also had the benefit of other records and of written contemporaneous statements made by the plaintiff to which he referred. In my opinion, the appellant has failed to show any basis upon which this Court could or should interfere with the trial Judge’s findings that the plaintiff did not suffer continuous pain in either the neck or the back after the 1978 accident or that he suffered from a diffuse spinal degenerative disease that was not traumatic in origin. The award of damages in his favour sprang from her conclusion that he suffered a soft tissue injury that restricted his movements and caused him pain and discomfort for some period after the accident. The effects of the 1978 accident were exhausted significantly before 1985. That being so, the appellant’s appeal against the quantum of damages must necessarily fail. The appellant who was born on 1 February 1943 remained in full time employment until 1998.

53    In my opinion, the trial Judge’s conclusions on the two specific matters mentioned in oral submissions were quite clearly open on the evidence. That being so, the remaining grounds of appeal against the conclusion on liability, to the extent to which these were developed in written submissions or argument, must also fail. Accordingly, this appeal should be dismissed with costs.

Toms appeal

54    Her Honour’s reasons for judgment covered much the same ground in relation to this claim as they did in relation to the Morabito claim. Again, her Honour went through the medical evidence, described the circumstances of the accident, found that the plaintiff had suffered no psychological or psychiatric consequences by reason of the 1992 accident and stated her conclusions as follows:

“ Conclusion
Damages for non-economic loss
Mr Stephenson does present with serious disabilities and problems. I find that Mr Stephenson suffers from a diffuse spinal degenerative disease that is not traumatic in origin. That disease became symptomatic in the 1980s. Before the accident in November 1992, Mr Stephenson was experiencing pain at various levels in his spine and seeking medical assistance. He has retrolithesis in his lumbar spine. There are constitutional degenerative changes in his cervical, thoracic and lumbar spine. There are changes at nearly every level in his spine.
His assessment of his condition - and aspects of his personation at the hearing - are affected by exaggeration. Various video recordings showed Mr Stephenson undertaking activities of the type that he said were beyond him such as working in his garden, bending, lifting and carrying items. Videos of his activities show him to be slightly stooped, but able to walk and move around for prolonged periods attending to routine household matters. He moves slowly, and with a consistent stoop. But he is able to drive, catch ferries; carry ordinary household items including retail shopping bags. He is able to push a child’s stroller (with child) for prolonged periods - sometimes with only his left hand whilst carrying a bag in his right. He is able to maintain a degree of activity - albeit at a slow and regular pace - for substantial periods of time.

I have preferred the history - including the occasional periods of silence - disclosed through the medical records to the history narrated by Mr Stephenson. I therefore have not accepted his complaints of pain where there is no contemporaneous medical (or physiotherapy) record of any complaint. I have therefore discounted to some extent Mr Stephenson’s complaints about pain before the accident, particularly through the 1980s.
Mr Stephenson now suffers from considerable restrictions in movement, both generally and when driving. He also has poor concentration and occasional light-headedness and dizziness. However these result from the progressive degeneration of his spine (cervical and later thoracic and lumbar) which became particularly significant in the mid to late 1980. They are not the result of the defendant’s negligence.
I do not find that Mr Stephenson has any psychiatric disorder or disease as a result of that accident.
I do not accept that the defendant is responsible for any of the various psychological problems from which Mr Stephenson claimed to suffer including chronic pain syndrome, phobias, personality change, psychological stress, irritability or frustration, chronic adjustment disorder with mixed anxiety and depressive moods. I accept Dr Maguire’s conclusions in preference to those of Mr Shoulder or Dr Boettcher. Both of the latter had proceeded on inaccurate histories. Circumstances precluded either from revising his opinion to take into account recent material or corrections to the history on which they had proceeded.
I accept the overwhelming medical evidence that Mr Stephenson suffers from a progressive degenerative condition that affects virtually every level of his spine. I find that the consequences of the 1992 accident had passed by the time of the hearing. As at August 1996 Dr Donaldson identified no continuing effect. Dr McGill considered that the consequences had earlier been resolved.
Where there is a conflict in the medical evidence I have preferred the evidence of Dr McGill, Dr Donaldson, Dr Potter and Dr Bornstein to that of Dr Carr who was inclined to act as his patient’s advocate and provide contradictory reports to different people at different times. Dr Ganora was inclined to favour a traumatic explanation. His assessment was undermined by the inaccuracies in the history given him, including that Mr Stephenson had ‘physiotherapy intermittently over’ the two years following the 1978 accident. As noted, that is not correct. Mr Stephenson had physiotherapy on three occasions in January 1979, and then not again until 1987.
I find that consequences of the 1992 accident had resolved some years before the hearing. I find that as at the time of the hearing the consequences of the 1992 accident did not significantly impair Mr Stephenson’s ability to lead a normal life, where his normal life is assessed by reference to his pre-existing progressive degenerative condition as at November 1992 (before the accident).
For the reasons discussed earlier, Mr Stephenson cannot recover in his claim for non-economic loss unless at the date of trial his ability to lead a normal life is significantly impaired by the injury suffered by reasons of the 1992 accident. I am conscious that this may wreak an injustice. As Meagher JA commented in dissent in Roberts v White (1999) 29 MVR 331:
‘In Matthews v Deane (1990) 11 MVR 455 Grove J decided, with a naivete which is almost touching, that ‘is’ meant ‘is now at the time of hearing’. In Reinhardt v Huan (1996) 24 MVR 58 Beazley JA and I pointed out that this interpretation could not possibly be correct. If the section were interpreted literally, the words obviously mean ‘the injury resulted in a significant impairment in the injured person’s ability to lead a normal life’. If the section were interpreted purposively, one reaches the same result: the purpose of the legislation was to restrict damages to serious injuries and to disallow them in trivial matters. If the section were to be interpreted according to the results, the consequences of Grove J’s interpretation would be to leave a plaintiff to the caprice of the lists.”
That is the consequence in this case. I am bound by the majority of the Court of Appeal in Roberts v White .
I do not award Mr Stephenson any damages for non-economic loss.”

55    As I have said her Honour awarded the plaintiff damages for out-of-pocket expenses, made no award of damages for any Griffiths v Kerkemeyer claim and said she did not find that the plaintiff ceased work or was unfit for work as a result of the defendants’ negligence and awarded no damages for this. The deduction for contributory negligence was based on a finding that the plaintiff failed to wear a properly fitted or adjusted seatbelt.

56    The appellant’s notice of appeal contained thirty-two grounds. The appellant did not press grounds 2, 4, 7, 23, 25, 26, 31 and 32. Again, many of the grounds still relied on ignored the scope of appeal against findings of fact. The remaining grounds of appeal were grouped as follows: grounds 1, 3, 5 and 8-13 which attacked the findings of progressive degenerative arthritis throughout the spine and the failure to find that the 1992 accident had aggravated a pre-existing condition. The second group consisted of grounds 6, 18 and 24 directed to the non-acceptance of the plaintiff’s evidence and evidence corroborating it. Group three consisted of grounds 12 and 13, her Honour’s failure to find that the plaintiff suffered continual pain because of his failure to complain. Group four consisted of grounds 14-17 inclusive, her Honour’s failure to award damages for non-economic loss, and past and future economic loss. Group five consisted of grounds 19-22 inclusive and 30 directed to the trial Judge’s acceptance of the evidence of Dr Potter and Dr McGill and the report of Dr Donaldson without giving adequate reasons. Groups six and seven consisted of grounds, 27-29 inclusive, which were directed to the inadequacy of damages.

57    Once again the attack was against the trial Judge’s acceptance of what she described as the overwhelming medical evidence that the plaintiff suffered from a progressive degenerative condition that affected virtually every level of his spine. This finding was challenged on the same grounds as it was in the Morabito appeal and for similar reasons must be rejected. That said, no separate submission was advanced which enabled the appellant to challenge the finding that the consequences of the 1992 accident had passed by the time of the hearing.

58    A particular argument was mounted against her Honour’s findings that the plaintiff’s assessment of his condition and aspects of his personation at the hearing were affected by exaggeration. It was submitted that the plaintiff gave evidence of carrying out the various activities, or at least some of them, which were shown in the video recordings her Honour referred to. But the appellant’s acceptance that Judge Gibb’s conclusion that the plaintiff did not suffer from back pain until the mid 1980s could not be challenged, makes clear that it was entirely open for her Honour to conclude that his assessment of his condition was affected by exaggeration.

59    The failure of the appeal for reasons already given on these particular grounds which were argued and the finding her Honour made in accordance with this Court’s decision in Roberts v White means that those grounds directed to the assessment of damages must also fail. It was not open to her Honour to award damages for non-economic loss and the plaintiff had failed to show any other entitlement to damages beyond that allowed by the trial Judge.

60    Again, in my opinion, no ground has been shown why this Court could or should interfere with the decision. The appeal should be dismissed with costs.

Orders

61    Appeals dismissed with costs.

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