Van der Velde v Halloran
[2011] WASCA 252
•17 NOVEMBER 2011
VAN DER VELDE -v- HALLORAN [2011] WASCA 252
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 252 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:47/2010 | 2 MARCH 2011 | |
| Coram: | BUSS JA NEWNES JA MAZZA J | 17/11/11 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Judgment of primary judge set aside New trial ordered on the entire issue of damages before a different judge | ||
| B | |||
| PDF Version |
| Parties: | HENDRIK JAN VAN DER VELDE KEVIN GREGORY HALLORAN |
Catchwords: | Personal injuries Motor vehicle crash Causation of injuries Conflicting medical evidence Whether trial judge's reasons inadequate |
Legislation: | Supreme Court Act 1935 (WA), s 59(1), s 59(3), s 59(4) |
Case References: | Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 Browne v Dunn (1893) 6 R 67 Bulstrode v Trimble [1970] VR 840 Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 Christodoulakis v Aly [2009] WASCA 136 CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1 Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Gaunt v Hooft [2009] WASC 36 M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Pateman v Higgin [1957] HCA 62; (1957) 97 CLR 521 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Reid v Kerr (1974) 9 SASR 367 Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : VAN DER VELDE -v- HALLORAN [2011] WASCA 252 CORAM : BUSS JA
- NEWNES JA
MAZZA J
- Appellant
AND
KEVIN GREGORY HALLORAN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAUDE DCJ
Citation : HALLORAN -v- VAN DER VELDE [2010] WADC 63
File No : CIV 821 of 2007
(Page 2)
Catchwords:
Personal injuries - Motor vehicle crash - Causation of injuries - Conflicting medical evidence - Whether trial judge's reasons inadequate
Legislation:
Supreme Court Act 1935 (WA), s 59(1), s 59(3), s 59(4)
Result:
Appeal allowed
Judgment of primary judge set aside
New trial ordered on the entire issue of damages before a different judge
Category: B
Representation:
Counsel:
Appellant : Mr G R Hancy
Respondent : Mr D R Clyne
Solicitors:
Appellant : WHL Legal Pty Ltd
Respondent : Simon Walters
Case(s) referred to in judgment(s):
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Browne v Dunn (1893) 6 R 67
Bulstrode v Trimble [1970] VR 840
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Christodoulakis v Aly [2009] WASCA 136
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1
(Page 3)
Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Gaunt v Hooft [2009] WASC 36
M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Pateman v Higgin [1957] HCA 62; (1957) 97 CLR 521
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Reid v Kerr (1974) 9 SASR 367
Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870
Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
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- JUDGMENT OF THE COURT:
Introduction
1 On 5 May 2005, a vehicle driven by Mr Van der Velde crashed into a vehicle being driven by Mr Halloran at a roundabout in Rivervale. The crash was Mr Van der Velde's fault. As a consequence of the crash, Mr Halloran suffered personal injuries. He sued Mr Van der Velde for damages. Mr Van der Velde admitted liability. The question of the quantum of damages was tried in the District Court before Staude DCJ.
2 At the trial, Mr Halloran claimed that the crash caused various injuries, including to his neck, shoulders, thoracic and lumbar spine. It was his case that these injuries, or at least some of them, caused him to suffer chronic symptoms which had a significant impact upon his ability to work and enjoy life. These symptoms, it was claimed, were ongoing as at trial in March 2010.
3 Mr Halloran said that while suffering these chronic symptoms he suffered two particularly acute episodes, both of which were caused by the crash.
4 The first of these occurred towards the end of November 2005 when Mr Halloran suffered a disc protrusion at C6/C7 level which was associated with what Mr Halloran said was light gardening work at home. As a result, there was an exacerbation of neck symptoms as well as right shoulder and arm symptoms. The second acute episode occurred in late June 2006. Mr Halloran said he experienced severe pain in his lower back, as well as pain all down his spine and into his legs.
5 Mr Van der Velde's case was that the only injury Mr Halloran suffered from the crash was a soft tissue sprain of his neck which should have resolved within a matter of months and certainly by December 2009. Mr Van der Velde's case was that if Mr Halloran's symptoms were chronic, it was not because of anything caused by the crash. Any symptoms which Mr Halloran had at December 2009 were due to pre-existing degenerative changes.
6 With respect to the two acute episodes, Mr Van der Velde alleged that Mr Halloran's disc protrusion was caused by him undertaking heavy work in the garden, and that the lower back symptoms were entirely independent from the injuries caused in the crash. Mr Van der Velde also contended that each was a subsequent event which 'broke the chain of
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- causation'. His counsel described each event as a 'novus actus interveniens'.
7 The parties called expert evidence on the question of what caused Mr Halloran's chronic symptoms. Mr Halloran relied on the evidence of a neurosurgeon, Mr Soni Narula, to show that the chronic physical symptoms he suffered were accident related. Mr Van der Velde relied on contrary evidence from consultant orthopaedic surgeons, Dr John Kagi and Mr Peter Bath, and occupational physician, Dr Andrew Marsden.
8 His Honour accepted the evidence of Mr Narula. He found that Mr Halloran's chronic symptoms were caused by the crash and that there was no 'novus actus interveniens' [102]. On 5 May 2010, he awarded Mr Halloran damages totalling $566,800, most of which was compensation for past and future economic loss.
The grounds of appeal
9 Mr Van der Velde has appealed to this court against his Honour's award. He says his Honour's reasons were 'insufficient'.
10 The grounds relied upon by Mr Van der Velde are:
1. The learned trial Judge erred in law in failing to make sufficient findings and give sufficient reasons for his conclusion that the respondent's (plaintiff's) symptoms and disabilities after November 2005, or alternatively after December 2009, were due to the crash related injury to his cervical spine.
2. Erred in law in failing to make sufficient findings or give sufficient reasons for not accepting the evidence of [Dr] Kagi, Mr Bath or Dr Marsden that the respondent's (plaintiff's) symptoms and disabilities after November 2005, or alternatively, after December 2009, were not due to a crash related injury to his cervical spine.
11 Mr Van der Velde does not allege that his Honour made any error of fact or any error of law, apart from the failure to make findings and give sufficient reasons.
12 The significance of December 2009 is that it was in this month that Mr Halloran last saw Dr Kagi.
His Honour's history of Mr Halloran's symptomatology
13 His Honour's reasons recite in detail a good deal of the evidence and, in particular, the evidence of Mr Halloran.
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14 Mr Halloran was 44 years of age at the time of the accident. For over 10 years he had worked as a technician in a steel heat treatment factory. That work required some reasonably heavy activities, including lifting weights up to 40 kg and loading and unloading ovens.
15 Mr Halloran had no spinal problems before the crash, but he had, since 1995, experienced psychological problems, mainly depression and anxiety. Those problems were not causing him any apparent difficulties before the crash: reasons [9] - [11].
16 In the days immediately following the crash, Mr Halloran continued to work, performing his normal duties, but he was experiencing pain and stiffness in his neck, back and head. He said that he tried to see his general practitioner at Fulham General Practitioners, but could not get an appointment: reasons [17].
17 On 18 May 2005, Mr Halloran saw a general practitioner, Dr Lu. She thought he might have sustained a fracture at the C6/C7 level of his spine in the crash. She gave him time off work. An x-ray appeared to confirm Dr Lu's opinion of a likely stable fracture, but a CT scan revealed no visible fracture.
18 Mr Halloran was seen by Dr Jeffcote, a surgical registrar at the Royal Perth Hospital Spinal Unit on 30 May 2005. He noted no major injury to Mr Halloran's bones, ligaments, discs or nerve roots. In particular, he did not note a disc prolapse. Dr Jeffcote suggested anti-inflammatories, physiotherapy and a return to work on light duties.
19 For the period between 30 May 2005 to late November 2005, Mr Halloran frequently consulted general practitioners at Fulham General Practitioners. He complained mainly of headaches, neck ache and back pain. During this period, there was no radicular pain. He was treated chiefly with physiotherapy and pain relief medication.
20 On 18 July 2005, Mr Halloran returned to work on light duties. His work was restricted, particularly with respect to lifting, and mainly involved supervising others. His Honour found that Mr Halloran did not perform his normal duties during this period: reasons [27]. On 20 October 2005, Dr Tan, a general practitioner, reported that Mr Halloran was suffering severe pain in the inter-scapular region: reasons [30]. On 31 October 2005, Dr Tan reported that Mr Halloran had persisting neck pain and headaches, with improvement in his lower back pain.
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21 On 26 November 2005, Dr Timothy Chappell, a general practitioner, noted:
Now back at work - in an engineering shop - heat treatment plant. Was a lot better on the Endep and tried to do some shovelling. It made him a lot worse. Pain down the left arm and in the neck. Hand has some paresthesia. O/E [on examination] looks depressed. In pain. Tight in the upper trapezius. Limited extension in the neck. Flexion OK. Minimal rotation (this has always been the problem).
22 On 29 November 2005, Dr Chappell noted:
Long history. Flare in chronic neck pains in last week when he was shovelling in garden. Has been in excruciating pains. Taking lots of analgesia.
23 On 30 November 2005, Dr Chappell wrote:
I was not really understood him [sic] that this is a new problem and not going away. He was digging in the garden - pain in the left neck and going down the right arm. Looks sore but more motivated in his spirits. Needs CT scan and review. To continue on Panadeine Forte.
24 A CT scan taken on 1 December 2005 revealed a disc protrusion at C6/C7 which was likely to be impinging on the exiting C7 nerve root.
25 On 8 December 2005, Dr Chappell wrote, in connection with the November incident:
The neck pain that he had is NOT new. He was NOT during [sic] physical work but very light work that would not normally cause this problem. I believe him that this is an exacerbation of a pre-existing problem (more like an acute on chronic event). (emphasis in original)
26 By 5 January 2006, Mr Halloran's arm pain had resolved, but he was still complaining of headaches.
27 Mr Halloran returned to work on 13 February 2006 for 4 hours per day. He began a supervised physical training program with Dr Michael Ponchard. He saw Dr Gee, a pain management specialist, on 8 May 2006. Mr Halloran told Dr Gee that he was suffering from constant headaches, extreme tightness around his neck muscles and some tingling down the right arm which appeared to be settling.
28 On 26 June 2006, Mr Halloran experienced severe pain which he felt from his head through his neck and back down to his hips and legs: reasons [48]. He was prescribed morphine, but overdosed on it and
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- collapsed. On 27 June 2006, he was admitted to St John of God Hospital Murdoch. There he saw Mr Narula. Mr Narula noted that Mr Halloran had presented to the emergency department following an episode of severe lower back pain: reasons [49].
29 An MRI scan taken while Mr Halloran was at St John of God Hospital Murdoch showed a right-sided C6/C7 mild disc prolapse which was not abutting the nerve root. A CT scan showed that the lumbar spine had gross degenerative changes at the L5/S1 level.
30 On 2 July 2006, Mr Halloran was discharged from hospital. He has not worked since then.
31 During the rest of 2006 and in 2007, Mr Halloran was seen by a number of doctors. He said that he continued to suffer neck pain, headaches and, at times, pain radiating down his back to his hips and legs: reasons [59].
32 Dr Gee administered nerve blocks at the C2 level in September 2007, which improved Mr Halloran's headache symptoms.
33 At trial, Mr Halloran described his main disability as being unable to move his arms and shoulders without suffering pain in his neck and down his arms. He said that on a day-to-day basis, he suffered ongoing pain to his head, neck and upper back, which occasionally extended down his spine into his lower back and hips: reasons [71].
Evidence of Mr Narula
34 Mr Narula saw Mr Halloran on four occasions, 28 June 2006, 2 July 2006, 12 September 2008 and 12 June 2009.
35 In his report dated 12 June 2009, Mr Narula expressed the opinion that the underlying pathology giving rise to Mr Halloran's symptoms was an irritation of the facet joints at C2/C3 and a disc prolapse at C6/C7. He said that these conditions 'gave rise to symptoms of headaches and right upper limb symptoms which have been his dominant two symptoms'. He said that the motor vehicle accident caused the onset of these symptoms, although they progressed 'with the exertional use of his body in relation to his work'. Mr Narula regarded the subsequent development of a disc bulge as causing the right scapular and right arm symptoms: Mr Narula report, 12 June 2009, green AB 17.
36 In relation to the lumbar symptoms which occurred in June 2006, Mr Narula said, in his report of 2 July 2006, that they were indirectly
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- related to Mr Halloran's neck injuries because, he said, the muscle spasm in Mr Halloran's neck changed his body posture: green AB 7.
37 In evidence-in-chief, Mr Narula said that Mr Halloran's headaches were caused by strain on the facet joints at C2/C3. He thought this was demonstrated by the improvement Mr Halloran felt following the nerve blocks Dr Gee administered in 2007: ts 106.
38 It appears that Mr Narula was unaware of the CT scans taken in May 2005 and on 1 December 2005, and the digging incident in November 2005. He was aware of the MRI scan taken in June 2006 which showed a prolapse that was not impinging on the nerve root. Mr Narula said a prolapsed disc may cause pain and irritation, even though it does not impinge or press upon a nerve: ts 106, 108.
39 Mr Narula was asked to explain how Mr Halloran's symptoms, which were initially mild, worsened over time. Mr Narula said that in some cases inflammation in some of the body structures takes time to develop: ts 109. Because of this, he said, the onset of pain can be delayed. With respect to Mr Halloran, he said:
He had minor symptoms … and then went on to work within I think 24, 48 hours. He continued with the same duties that he was doing before, and progressively noted increasing pain. Now, it implied to me that the symptoms became progressive, because the inflammatory element became more as he was stressing his cervical spine more and more. And this resulted in the onset of his symptoms by way of the right arm. Now, the issue of the disc prolapse is essentially from a point of view, should he not have this radiological finding before his accident, then the exertional work that he was physically involved in at work has resulted in the development of this mild disc prolapse. And although it is not impinging upon the nerve root, it's stretching then the fibres. It is stretching that local segment, and therefore causing pain: ts 110.
40 Mr Halloran's counsel asked Mr Narula what role the crash had in the progression to a disc prolapse. Mr Narula replied:
The role I - I saw was that he was doing this job on a daily basis before the motor vehicle accident, and he had no problems with the - such work that he was undertaking. Following the motor vehicle accident, despite initially having relatively minor symptoms, he became progressively worse, and that - the only difference between then and subsequence [sic] is that the - the internal [sic] motor vehicle accident: ts 110.
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41 Mr Narula went on to say, as we understand it, that the disc prolapse was not the cause of Mr Halloran's pain. Rather, his pain was indicative of an 'underlying problem' in the disc itself: ts 111.
42 Mr Narula's cross-examination was brief: ts 111 - 115.
43 It was not put to Mr Narula that the disc prolapse at C6/C7 had been caused by an incident of digging in November 2005. Nor was it suggested that, in fact, all that Mr Halloran had suffered was a soft tissue sprain to the neck which should have resolved itself in a short period of time, and that his ongoing symptoms were not caused by the accident.
44 In his report dated 12 September 2008, Mr Narula referred to the x-rays taken in May 2005 which, he said, revealed slight degenerative changes at C6/C7. He said that in the absence of the motor vehicle accident, Mr Halloran would not have become symptomatic for at least the next 10 to 15 years. There was no cross-examination about this.
45 Mr Narula was not cross-examined about his opinion that Mr Halloran's lumbar symptoms were indirectly related to his neck injuries, but did acknowledge that the symptoms were coming from L5/S1, where Mr Halloran had gross degenerative changes: ts 112.
Evidence of Dr John Kagi
46 Dr Kagi is a consultant orthopaedic surgeon who was called by Mr Van der Velde at trial. He saw Mr Halloran on 1 December 2005, 29 September 2006, 19 August 2008 and 7 December 2009. In all, Dr Kagi wrote six reports over the time Mr Halloran consulted him.
47 Dr Kagi's initial and tentative opinion expressed in his report of 5 December 2005 (with the benefit of the CT scan taken in May 2005, but without the benefit of the CT scan taken on 1 December 2005) was that Mr Halloran had suffered a sprain of the cervical spine in the crash, and that his condition had been complicated by what Dr Kagi thought could well be cervical radiculopathy, or at least a further cervical intervertebral disc injury. Dr Kagi expressed the view that further investigation was required: Dr Kagi report, 5 December 2005, green AB 92.
48 In Dr Kagi's next report dated 10 October 2006, Dr Kagi reviewed, relevantly, the CT scan taken on 1 December 2005 and the MRI scan taken on 28 June 2006. Mr Halloran told him that he had been admitted to hospital in June/July 2006, under the care of Mr Narula for the acute onset of low back, hip and leg pain: green AB 96. His opinion at this
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- time was that the intervertebral disc injury shown in those scans at C6/C7 was sustained in the crash, but was in the context of a disc that was already degenerate. Dr Kagi did not believe that Mr Halloran's lower back pain was caused by the crash, because of the degenerative change at the L5/S1 level, and the time gap between the crash and the onset of the symptoms. He said:
I do not believe his low back pain, which in my opinion is due to the degenerative change at L5/S1 level which is longstanding and pre-dated the motor vehicle accident and appears to be associated with an intermittent L5/S1 sciatica, is related to the injury sustained in the motor vehicle accident because of the time gap between the motor vehicle accident and the onset of the lower spinal and left leg symptoms. He did not have these symptoms when I examined him in December 2005, seven months after the motor vehicle accident and did not appear to complain of them to Dr McCloskey, Spinal Orthopaedic Surgeon, when he saw him in February 2006: Dr Kagi report, 10 October 2006, green AB 99.
I'd say, as my working diagnosis, that he did sustain a sprain of the cervical spine in the motor vehicle accident and that sprain was superimposed on degenerate intervertebral discs (C5 and C6) in his cervical spine and possibly caused the intervertebral disc protrusion apparent on his MRI of 28 June 2006 and also was responsible for the right C5/6 cervical radiculopathy that he appeared to be suffering from when I saw him in December 2005.
As far as I can ascertain, this cervical radiculopathy has long since settled: Dr Kagi report, 9 September 2008, green AB 105.
50 Later in the same report, Dr Kagi said that he did not believe that Mr Halloran was incapacitated from his pre-accident occupation by the injury he sustained to his neck in the crash: Dr Kagi report, 9 September 2008, green AB 106.
51 In relation to low back pain, Dr Kagi noted that Mr Halloran told him that he did not have pain or problems in that region: green AB 104, 105. Dr Kagi repeated his opinion that Mr Halloran's lumbar condition was not the result of the crash: green AB 105.
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52 Dr Kagi was unaware of the digging incident in November 2005 until he was shown the relevant general practitioner notes by Mr Van der Velde's solicitors on 9 October 2008. As a result of this information, Dr Kagi concluded that the disc pathology identified in the December 2005 CT scan was not accident related. He arrived at this conclusion because the CT scan taken after the crash (May 2005) did not show any disc bulge: Dr Kagi report, 14 October 2008, green AB 112. He said:
Mr Halloran's neck pathology therefore in my view is attributable to two injuries, first the motor vehicle accident and second to the incident digging in the garden: Dr Kagi report, 14 October 2008, green AB 112.
53 In Dr Kagi's opinion, the crash did not leave Mr Halloran more likely to sustain the intervertebral disc injury seen in the CT scan taken in December 2005: Dr Kagi report, 14 October 2008, green AB 113.
54 In Dr Kagi's final report dated 9 December 2009, he gave what he described as his 'considered opinion':
He may well have sustained a neck sprain in the original motor vehicle accident, and this was superimposed on pre-existing degenerative changes in his cervical spine.
It is my considered opinion that the neck sprain would have settled within a month or two of that motor vehicle accident if it had followed its normal natural history and certainly well and truly by now, 4 1/2 years later. If he has genuine cause for pain in the present moment, it is pre-existing degenerative changes in his neck and if he cannot work, it is because of these degenerative changes, not the sprain sustained in the motor vehicle accident: Dr Kagi report, 9 December 2009, green AB 117.
55 In cross-examination, Dr Kagi, on the basis of the history given to him by Mr Halloran, rejected the proposition that the disc protrusion identified in the CT scan taken in December 2005 could have been caused by the accident and developed over time. The effect of Dr Kagi's evidence is that the most likely cause of the disc protrusion was an acute episode some time after May 2005 and that, if it was not caused by shovelling in the garden in November 2005, it was caused by some other acute episode. It was a new pathology unrelated to the accident: ts 172.
56 At ts 174, the following exchange took place:
CLYNE, MR: … [D]o you agree with me that these disk [sic] protrusions can develop - can be progressive---Once a disc protrusion has occurred it can progress or regress, yes, that's correct.
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- And so this disc pathology that you saw in the December '05 CAT scan could have been a result of the accident, motor vehicle accident---No.
Why not---Because it wasn't present on the CAT scan done at Royal Perth Hospital immediately after the accident.
But they can progress---No, no. No, I don't accept that. The history that he gave was consistent with a recent disc protrusion.
...
I understand that, but I'm putting it to you again that if his - if that level of his neck was injured in the May '05 accident and he had existing degeneration then that degeneration can be aggravated and the protrusion can come on by almost a minor event---A further injury would have caused that disc protrusion, this protrusion that I saw when I reviewed that CAT scan and compared it with the earlier CAT scan.
Now, you say whatever is wrong with him now is due to pre-existing degeneration. Is that right---At this moment, because the radiculopathy that we've been discussing has resolved.
57 In cross-examination, Dr Kagi strongly maintained his opinion that the injuries Mr Halloran received in the crash did not give rise to chronic symptoms, as the following exchange shows:
Do you agree with this fairly simple proposition, that if this accident hadn't occurred on 5 May '05 this man may have continued without neck symptoms for many years---No, I don't accept that. I don't believe his injuries - - -
Tell me why---I don't believe the injury was severe enough to have caused that result.
You don't believe the injury was severe enough to cause him even temporary symptomology---?---I didn't say that. I don't - he had temporary symptoms after - he had symptoms after the accident.
CLYNE, MR: Yes---I don't deny that he had symptoms. But this man has a normal CAT scan, apart from the degenerative change, and a normal MRI, apart from the degenerative change of the cervical spine. There is nothing on either that CAT scan or that MRI to suggest that he has an ongoing permanent pathology in his neck caused by the motor vehicle accident.
But he has a permanent pathology - - ----Two CAT scans, rather.
He has a permanent pathology in his neck, doesn't he---He has. He has, yes, age-related degenerative change.
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- And it wasn't symptomatic before the accident---Well, that was his history.
All right. If that's true, then what's made it symptomatic is the accident---Is a compensable injury, yes. Yeah, I quite agree.
Is this motor vehicle accident, right---It's a very common - it's a very common story, Mr Clyne, as I'm sure you'd know only too well.
Are you suggesting that this is all motivated by compensation---I'm suggesting that - that the progress and the natural history of an injury such as Mr Halloran had is different in a compensable scenario to that in a non-compensable scenario: ts 176 - 177.
58 Dr Kagi said that Mr Halloran's headaches were not coming from the C2/C3 level. Dr Kagi did not consider that the relief gained from Dr Gee's injections at that level indicated that was the source of the problem. His reasons for this opinion were that there was no nerve root irritation evident on the MRI, headaches are common for the type of neck injury Mr Halloran sustained, Mr Halloran was taking very high doses of Panadeine Forte and that the injections could have caused a placebo effect: ts 179 - 182. Dr Kagi's view is directly contrary to Mr Narula's opinion, but it was never put to Mr Narula.
59 Dr Kagi was not cross-examined about Mr Narula's opinion that Mr Halloran's neck pain came from within the disc rather than from the disc prolapse, and that the prolapse indicated an underlying problem with the disc. Nor was Dr Kagi cross-examined on his opinion that Mr Halloran's low back pain was not caused by the crash.
60 In re-examination, Dr Kagi expressed the opinion, based on the GP's notes he had seen, that the episode of digging in the garden caused the C6/C7 disc protrusion: ts 184. This answer needs to be considered in context. We understand Dr Kagi to have reached the final view, contrary to his early view that the accident caused the prolapse (see [47] - [49] above), that a post-May 2005 acute episode caused the prolapse and, having then seen the GP's notes, he suggested that the digging incident was likely to be that acute episode (see also ts 161). We do not understand Dr Kagi's opinion to depend upon the digging incident being the acute episode.
Evidence of Mr Peter Bath
61 Mr Bath is a consultant orthopaedic surgeon who saw Mr Halloran at the request of Mr Van der Velde's insurers or solicitors on 18 April 2006, 6 February 2007 and 4 May 2009. Mr Bath's reports dated 21 April 2006,
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- 9 February 2007 and 7 May 2009 were admitted into evidence at trial by consent. Mr Bath did not give oral evidence.
62 In his report of 7 May 2009, Mr Bath said that in his opinion the injuries suffered by Mr Halloran in the crash were more of a soft tissue nature and did not involve any disc prolapse with associated nerve root problems. He said that, usually, symptomatology from soft tissue injuries continues for about 6 weeks, but can continue to a mild degree over 6 to 12 months, and that in the great majority of cases such symptoms settle completely: Mr Bath report, 7 May 2009, green AB 150.
63 Later in the same report, when asked about the disc protrusion shown in the CT scan taken in December 2005, Mr Bath said that the protrusion could have been the cause of the right arm symptoms Mr Halloran reported around that time, but he thought the protrusion was a new pathology, that is, something not caused by the crash of 5 May 2005.
64 Mr Bath expressed support for the opinions given by Dr Kagi in his report dated 14 October 2008. He described those opinions as 'reasonable': Mr Bath report, 7 May 2009, green AB 151.
65 Mr Bath, although aware of the episode in June 2006 (Mr Bath report, 9 February 2007, green AB 141), did not offer any opinion as to its cause.
Evidence of Dr Marsden
66 Dr Marsden is an occupational physician. He saw Mr Halloran on only one occasion, 12 July 2007. Subsequently, he provided Mr Van der Velde's solicitors with five reports, all of which were tendered in evidence.
67 Dr Marsden, in his report dated 12 July 2007, noted that Mr Halloran complained principally of headaches. Dr Marsden thought that the headache symptoms given by Mr Halloran were more consistent with stress headaches than those arising from the cervical spine and associated structures. He went on to say:
He did not have much in the way of clinical signs and certainly no evidence of any significant right upper limb radiculopathy, possibly arising from his neck. I would not be convinced that he has CT scan findings directly related to the motor vehicle accident, in terms of disc protrusion on the basis of the original CT scan findings, and any subsequent disc protrusion lesion has not been caused by the motor vehicle accident. His lower back issues seem to me to be related to some event which occurred
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- around 26 June 2006, and are not related directly to the motor vehicle accident and its sequelae: Dr Marsden report, 12 July 2007, green AB 123.
68 In his report dated 6 August 2007, Dr Marsden said:
If the accident had caused very significant injuries, I find it difficult to understand how he was able to return to work for several weeks and eventually several months in alternative duties and in particular the first week undertaking his normal long hours, handling heavy industrial steel and of course using cranes and forklift trucks to move the heavier items, if he was so apparently injured. It is my opinion that subsequently a whole range of other issues have intervened, leading to him going off work and my overall impression is that he has a very dramatic presentation and independent injury and psychological issues, including marital breakdown, which have affected his overall ability to be able to return to work. He suffered soft tissue strain injuries and the natural history for this type of injury is to be sore initially, with a peak within 24-48 hours, and then gradually resolving over the ensuing weeks/months: Dr Marsden report, 6 August 2007, green AB 125 - 126.
69 In his report of 29 January 2008, he commented, with respect to Mr Halloran's low back injury:
I am not convinced that he suffered any significant low back injury as a result of this accident and that any low back symptomatology seems to have arisen around October 2005 [sic], well separated from the motor vehicle accident to break the nexus between the accident and the onset of his back pain: Dr Marsden report, 29 January 2008, green AB 128.
70 In Dr Marsden's report dated 14 October 2008, he referred to, amongst other things, general practitioner notes from Fulham General Practitioners. He observed a notation on 17 November 2005 which indicated that Mr Halloran 'had to work on task [sic] involving a large amount of working above the shoulder region - caused a few days of pain and impacted on work capacity': Dr Marsden report, 14 October 2008, green AB 132. Dr Marsden also observed Dr Chappell's note dated 29 November 2005 which referred to Mr Halloran 'shovelling in [the] garden'.
71 Of this digging episode, in his report dated 14 October 2008, Dr Marsden said:
The logical explanation is that the digging episode was sufficiently vigourous [sic] to cause an independent injury circumstance. There was no evidence prior to this digging that he had a disc lesion or protrusion, caused by the motor vehicle accident. His neck problem was not aggravated by his return to his normal heavy physical working duties, and
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- therefore in my opinion the disk [sic] was not weakened by the motor vehicle accident but indeed damaged by heavy physical manual labouring in its own right in his own garden in late November 2005: Dr Marsden report, 14 October 2008, green AB 132.
72 In examination-in-chief, Dr Marsden was asked to comment on the differences between the CT scan taken in May 2005 and the CT scan taken on 1 December 2005 and, in particular, to the presence in the latter scan of the 4 mm disc bulge at C6/C7. Dr Marsden said:
Yes, I think the - on 18 May [sic], if there had been a disc protrusion caused by the motor vehicle accident, it would have been there by that time, from an incident which occurred on 5 May. … [In respect of the scan taken on 1 December 2005, it] showed that he had a bulge at the right at C67 [sic], which was a completely new finding: ts 190.
73 Dr Marsden thought that it was significant that Mr Halloran had not seen his general practitioner until ten or so days after the crash. As to this he said:
Well, if you have a motor vehicle accident you're going to have major problems which he is now saying have lasted four or five years, I think it's not reasonable that he didn't have very significant discomfort if not that day then within a day or so afterwards sufficient to cause him to go and see his general practitioner immediately and it was my understanding that he remained at work and undertook not only his normal hours but extra hours as well in quite heavy, physical work: ts 192.
74 Dr Marsden confirmed his opinion that Mr Halloran's low back pain did not relate to the crash: ts 192, 194.
75 In cross-examination, Dr Marsden said that it was his understanding that immediately after the crash Mr Halloran had some neck stiffness and soreness, but it was not sufficient for him to feel the need to see his doctor. Dr Marsden seemed to be unaware of the attempt by Mr Halloran to see his doctor earlier than he did: ts 196 - 197.
76 It appears that Dr Marsden thought that Mr Halloran undertook his full duties at work from July 2005 until about October 2005, and that after October 2005 he was on lighter duties: ts 197.
77 Dr Marsden's attention was drawn to the general practitioner's notes from Fulham General Practitioners, and in particular to the entry on 8 December 2005, when Mr Halloran told Dr Chappell that he was doing 'very light work' when the acute episode occurred. The following exchange then took place:
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- [DR MARSDEN:] Well, he's [Mr Halloran] aggravated his neck or whatever in some episode and he's [the GP] described it here as an 'Acute on chronic event.'
[CLYNE, MR:] Yes---But there was, nonetheless, an acute event.
On an already damaged neck---Yes.
Because that's what the chronic is---Yes.
And without the chronic, there might not have been an acute event, and probably wouldn't have been---Well, who's to say. What he has got is evidence that he didn't have a disc protrusion earlier and now he's got a disc protrusion after something quite significant, either at work or at home, in those last days of November: ts 199.
78 Mr Halloran's counsel suggested that the disc protrusion could have developed gradually from the crash. Dr Marsden, in the course of answering that question, said:
Here, he had no disc protrusion in May or whenever the first one [scan] was taken, but after heavier physical work of some sort, he definitely did have [a disc protrusion]: ts 200.
79 Dr Marsden was not cross-examined about his opinion that Mr Halloran's low back pain was not related to the crash.
His Honour's recitation of the expert evidence in question
80 In the course of setting out Mr Halloran's symptomatology, his Honour referred to Mr Narula's reports of 28 June 2006 (reasons [49]); 2 July 2006 (reasons [52]); 12 September 2008 (reasons [64] - [65]); and 12 June 2009 (reasons [66]).
81 After describing Mr Halloran's symptomatology, his Honour, under the heading, 'Other expert evidence', summarised the evidence of Mr Bath, between [72] - [75], and Dr Marsden, between [76] - [84], as well as the evidence of other experts whose testimony is irrelevant for the purposes of this appeal.
82 His Honour did not deal with Dr Kagi's evidence under this heading. Indeed, his Honour only briefly referred to Dr Kagi's evidence in his reasons. At [38], his Honour referred to Mr Halloran's consultation with Dr Kagi on 1 December 2005, and to the (tentative) opinion Dr Kagi expressed in his report dated 5 December 2005. At [147], his Honour, in the context of assessing Mr Halloran's past economic loss, referred to Dr Kagi's report of 9 December 2009 in these terms:
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- Dr Kagi, who last saw [Mr Halloran] on 9 December 2009, considered then that if [Mr Halloran] could not work it was because of pre-existing degenerative changes, not any crash-caused injury.
The parties' cases at trial
83 Having regard to the pleadings and to the opening and closing submissions of counsel, among the issues that his Honour had to determine were whether Mr Halloran had established that the crash was a cause of his ongoing symptoms and disabilities, and whether Mr Van der Velde had established that either the incident in November 2005 or the incident in June 2006 was a 'novus actus interveniens'.
84 In his closing address, Mr Van der Velde's counsel submitted that Mr Halloran had only suffered soft tissue injuries to his neck in the crash, which should have healed completely over a short period of time. However, in November 2005, Mr Halloran suffered a disc protrusion at C6/C7 which impinged on the exiting nerve root. It was argued that this disc protrusion was unrelated to the injuries Mr Halloran received in the crash. It was submitted that this injury 'broke the chain of causation': ts 217, 218.
85 Mr Van der Velde's trial counsel further submitted that the episode of low back pain which occurred in June 2006 was 'entirely independent' from the injuries caused by the crash: ts 227.
86 Mr Van der Velde's trial counsel submitted that his position was borne out by the expert medical testimony of Dr Kagi, Mr Bath and Dr Marsden. He submitted that their evidence should be preferred to the expert evidence called on behalf of Mr Halloran, and in particular from Mr Narula.
87 Mr Halloran's trial counsel submitted there was no 'novus actus interveniens' and that Mr Halloran's ongoing symptoms were caused or contributed to, in a material sense, by the injuries he received in the crash. He submitted that the disc protrusion which occurred in November 2005 was 'part of the natural progression' of those injuries.
His Honour's findings and reasons on the issue of causation
88 His Honour's findings and reasons on the issues of causation and 'novus actus interveniens' are between [93] - [102].
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89 Between [93] - [95], his Honour sets out Mr Van der Velde's case on the issue. In doing so, his Honour does not refer, at all, to the evidence of Dr Kagi, Mr Bath or Dr Marsden.
90 At [96], his Honour refers to a relatively minor point made by Mr Van der Velde's trial counsel in his closing submissions, that one indication of Mr Halloran's allegedly mild symptoms after the crash was that he attended for jury duty in June 2005. His Honour (rightly) did not consider this matter to be significant. At [97] - [98], his Honour said:
What is clear is that [Mr Halloran] suffered a cervical strain injury the symptoms of which were, initially, rather mild such that he did not in fact require medical attention until almost two weeks after the accident by which time the symptoms had worsened to the point where a spinal fracture was suspected and investigated, [Mr Halloran] being referred to the Spinal Unit at Royal Perth Hospital for this purpose.
Thereafter, [Mr Halloran] did suffer a period of time off work before returning to work in July 2005 and continuing until late November 2005 when he suffered a further exacerbation of neck symptoms, as well as right shoulder and arm symptoms, this time diagnosed as being due to a disc protrusion at C6/7.
91 At [99], his Honour noted Mr Van der Velde's submission that the alleged 'exacerbation' was caused by Mr Halloran shovelling in his garden. However, he accepted Mr Halloran's account of what occurred, namely that Mr Halloran was merely spreading potting mix or mulch on a garden bed, a task which his Honour found was not physically demanding.
92 At [100], his Honour found that Mr Halloran's evidence of the onset of pain in the incident in late June 2006 was 'credible and consistent with the documented medical history and should be accepted'. His Honour said, with respect to this incident that:
Mr Narula's opinion (Exhibit 1 [sic: Exhibit 2], p 7) that the lumbar symptoms for which he saw [Mr Halloran] in June 2006 were indirectly related to the neck injuries was not challenged [100].
93 His Honour concluded his reasons on the subject of causation in these terms, at [101] - [102]:
With respect to [Mr Halloran's] disc protrusion, the symptoms of which have resolved over time, I am satisfied that a sufficient causal nexus exists to connect it with the crash in question. I accept Mr Narula's explanation of the pathology. The disc prolapse was an acute episode in the course of a chronic cervical injury.
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- Similarly, I consider that the exacerbation of [Mr Halloran's] pain state in June 2006 can reasonably be attributed to the original crash, having regard to Mr Narula's evidence. Neither of these episodes constitutes a novus actus interveniens as submitted on behalf of [Mr Van der Velde].
Other findings made by his Honour
94 Later in his reasons, under the heading 'Assessment of damages', his Honour made the following findings, between [131] - [133]:
I am satisfied that the crash caused a strain injury of the cervical spine which took an unusual course and became unexpectedly chronic with [Mr Halloran] suffering a significant degree of disability in his upper spine and limbs beyond what might have normally been expected of an injury of this kind.
[Mr Halloran] had significant personal difficulties prior to the crash. These were emotional, psychological and psychiatric in nature. [Mr Halloran] was dealing with these problems as best he could with appropriate treatment. He had an admitted tendency towards alcohol and drug abuse but was able to work satisfactorily as I have found. When he returned to work in July 2005 it was on light duties and for slightly fewer hours per week on average. He worked under sufferance.
The exacerbation of his neck symptoms associated with a diagnosed C6/7 disc protrusion in November 2005 was painful and distressing and caused further time off work. The effects of the disc protrusion, however, diminished over time and, consistent with this recovery, [Mr Halloran] was able to return to work albeit on half time duties in February 2006. Unfortunately he was not able to carry on for more than a few months before having to cease work altogether in June 2006. The employer's representative Mr Harris confirmed in cross-examination that [Mr Halloran] worked half hours prior to ceasing work and that [Mr Halloran] could not do the physical aspects of his work. It was apparent from Mr Harris' evidence that the employer did what it could to accommodate [Mr Halloran] for as long as it was practical to do so.
Relevant principles of causation
95 It is not necessary that a defendant's negligent act or omission be the sole cause of the plaintiff's injury. Causation will be established if the relevant act or omission contributed materially to the damage suffered. See March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514 (Mason CJ); and Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 [27] (McHugh J).
96 Causation is, in essence, a question of fact. It is not susceptible of reduction to any one philosophical or scientific formula, such as the 'but for' test. Rather, it is to be resolved as a matter of common sense and
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- experience. See Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268, 277 - 278 (Dixon CJ, Fullagar & Kitto JJ); March (515) (Mason CJ), (522 - 523) (Deane J), (524) (Toohey J); and Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 6 (Deane, Dawson, Toohey & Gaudron JJ). The 'but for' test, applied as a negative criterion of causation, has an important role to play. It is not, however, a comprehensive and exclusive test of causation. See March (515) (Mason CJ); Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 - 413 (Mason CJ, Deane & Toohey JJ); and Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 [32] (Gummow, Hayne & Heydon JJ). Questions of causation may be answered differently according to the purpose for which the questions are asked. See Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 [15] (Giles JA).
97 In Medlin, the High Court examined whether there was a causal connection between the negligence of a defendant/motor vehicle driver and injuries suffered by the plaintiff. Deane, Dawson, Toohey and Gaudron JJ said in relation to intervening acts or decisions interrupting or breaking a chain of causation:
For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience (See Fitzgerald v Penn(1954) 91 CLR 268, at pp 277 - 278; March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506, at pp 515, 522 - 523; Bennett v Minister of Community Welfare (1992) 176 CLR 408, at pp 412 - 413, 418 - 419, 428). And that remains so in a case such as the present where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. In such a case, the 'but for' test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test (See, eg, March v Stramare (E & M H) Pty Ltd (1991) 171 CLR, at pp 515 - 519, 522 - 524). If, in such a case, it can be seen that the necessary causal connexion would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases,
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- it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision ...
Nor can the question of causation of damage in a negligence action be automatically answered by classification of operative causes as 'pre-eminent' or 'subsidiary'. Regardless of such classification, two or more distinct causes, without any one of which the particular damage would not have been sustained, can each satisfy the law of negligence's commonsense test of causation (See, eg, March v Stramare (E & M H Pty Ltd). This can be most obviously so in a case where a 'subsidiary' cause operates both directly as a cause of the particular damage and indirectly as a contributing component of a 'pre-eminent' cause (6 - 7). (emphasis added)
The duty to make findings and give reasons
98 It is common ground in this appeal that his Honour was under a duty to make findings and give reasons.
99 The content of the duty is not the same in every case, and cannot be reduced to a mechanical formula. However, in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, Meagher JA described three fundamental elements of a statement of reasons in these terms:
First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. …Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. …
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well (443 - 444).
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- See also Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 [35] - [38]; and Christodoulakis v Aly [2009] WASCA 136 [63].
100 There must be, in the set of reasons, an exposure of the intellectual process which led to his Honour's conclusions. Enough of the reasoning process must be exposed to enable the parties and the public to know why a party has won or lost, and to ensure that, where there is a right of appeal, the appeal court is able to decide whether an appealable error was made: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 [73]; and Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27] - [28].
101 Where a trial judge has given reasons for arriving at a decision, and the decision is challenged on appeal, the reasons actually given are to be understood as recording the steps that were in fact taken by the trial judge in arriving at that decision. See Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 [130] (Hayne J, McHugh & Gummow JJ agreeing). Hayne J then elaborated:
Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.
The primary judge's reasons stated his conclusion that the evidence of Dr Trevithick was to be accepted and preferred to that of other evidence but disclosed no reasoning supporting that conclusion. No analysis was made of the competing evidence and no explanation proffered for rejecting it. The most that might be inferred from what was said was that some special significance was attached to the existence of the written record upon which Dr Trevithick founded his oral evidence. But what significance was to be attached to the existence of that record might well be thought to have turned critically upon the source or sources of the information recorded in it. That was not a matter examined in the reasons. The absence of explanation for, and reasoning in support of, the conclusion expressed in the primary judge's reasons reveals that the process of fact finding miscarried. It miscarried because, so far as the reasons reveal, no examination was made of why Dr Trevithick's evidence was to be preferred to that of other witnesses [130] - [131]. (original emphasis)
102 It does not automatically follow that because reasons for decision are inadequate, that an appealable error has occurred. Sometimes, having regard to the reasons as a whole, an inadequacy in reasoning may not give rise to any miscarriage of justice. Further, an appeal court may, in certain circumstances, even where inadequate reasons are given, decide the
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- matter for itself, for example, where the only conclusion open on the evidence is that reached by the trial judge: Beale v Government Insurance Office of New South Wales (444).
Arguments on appeal
103 Mr Hancy, on behalf of Mr Van der Velde, submitted that in dealing with the specialist medical evidence, his Honour did not explain why he accepted Mr Narula's evidence and not the evidence of the medical specialists called on behalf of his client.
104 Mr Hancy argued that his Honour did not deal adequately with Dr Kagi's evidence. Mr Hancy submitted that his Honour did not refer, in any detail, to the content of that evidence and did not deal, at all, with his opinions.
105 Mr Hancy did not appear for Mr Van der Velde at the trial.
106 Mr Clyne, counsel for Mr Halloran, submitted that his Honour accepted Mr Halloran's evidence that he had suffered pain since the crash. Mr Clyne further submitted that there was nothing, apart from the crash, which could have caused it.
107 Mr Clyne submitted that his Honour's reasons for finding that there was no 'novus actus interveniens' were adequate. In relation to the acute episode in November 2005, his Honour found, contrary to Mr Van der Velde's case, that there was no episode of heavy digging. Further, his Honour was entitled to accept Mr Narula's opinion that the acute episode in June 2006 was related to the neck injuries sustained in the crash because it was not challenged.
108 Mr Clyne submitted that once the pleas of 'novus actus interveniens' were rejected, there was no alternative case put forward on behalf of Mr Van der Velde. Consequently, Mr Halloran's claim was bound to be upheld.
Unusual and unsatisfactory aspects of the case
109 Before directly addressing the question of whether his Honour's findings and reasons were adequate, it is necessary to note some unusual and unsatisfactory aspects of the case as it was conducted before his Honour.
110 It does not appear from the reports of Mr Narula that he was made aware of the opinions of Mr Van der Velde's specialists, particularly
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- Dr Kagi. Nor does it appear from the reports of Dr Kagi, Mr Bath or Dr Marsden that they were made aware of Mr Narula's opinions.
111 At trial, the contrary opinions of Dr Kagi, Mr Bath and Dr Marsden were not put to Mr Narula (in particular, the opinions we have noted at [43], [54] - [58] above). On the other hand, the opinions of Mr Narula were not expressly put to Dr Kagi, Mr Bath (who was not called as a witness) or Dr Marsden (in particular, the opinions we have noted at [41], [59] above). It is true that Dr Kagi was cross-examined about some aspects of Mr Narula's evidence; for example, that the disc protrusion occurred over time and that the crash caused chronic injuries. However, Dr Kagi was not asked, amongst other things, whether Mr Halloran's neck and other pain was caused by processes within the C6/C7 disc itself (without the disc impinging on the exiting nerve root). Also, neither Dr Kagi nor Dr Marsden was cross-examined on his opinion that Mr Halloran's low back pain was not caused by the crash. Further, Mr Bath was not required for cross-examination at all.
112 It is apparent from this that both counsel did not comply with their professional obligations under the rule in Browne v Dunn (1893) 6 R 67, in that the nature of the opposing case was not properly put to the expert witnesses who testified at trial.
113 As a result, his Honour was faced with the difficulty of being presented with two important bodies of evidence, each opposed to the other, neither of which was adequately tested. To adopt the metaphor used by Wells J in Reid v Kerr (1974) 9 SASR 367, 373 - 374, the two bodies of evidence 'serenely pass[ed] one another by like two trains in the night'. The difficulty was made no easier by Mr Bath's evidence being presented to the court without him being called to give evidence.
114 Prima facie, if there is no cross-examination of an expert (or indeed most witnesses), the court is entitled (but not bound) to accept the unchallenged evidence. It may therefore be argued that, as Mr Narula's evidence was in substance unchallenged, his Honour was entitled to accept it and that the obligation to give reasons beyond perhaps observing its unchallenged nature was unnecessary. Indeed, his Honour took this approach in his acceptance of Mr Narula's opinion that the June 2006 episode was indirectly related to Mr Halloran's neck injuries.
115 The difficulty with this approach in the present case is the prima facie position is no more than that.
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116 A court is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence: Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [110] - [112]; M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 [21]; Bulstrode v Trimble [1970] VR 840, 848 - 849; and Gaunt v Hooft [2009] WASC 36 [41] - [42].
117 In this case, Mr Narula's evidence was contradicted by a credible body of substantial evidence. Accordingly, his Honour could not accept Mr Narula's evidence merely because it was not challenged in cross-examination. His Honour had to undertake the task of resolving the conflicting expert evidence and to explain why he preferred Mr Narula's evidence over that of Dr Kagi, Mr Bath and Dr Marsden.
Were his Honour's findings and reasons inadequate?
118 Plainly, there was a conflict in the expert evidence on the issues of causation and whether there was any 'novus actus interveniens'.
119 As we understand his Honour's reasons, on these issues he made the following findings:
1. Mr Halloran suffered a cervical strain injury in the crash: reasons [97], [131].
2. That cervical strain injury took an unusual course and became unexpectedly chronic, and caused a disability in Mr Halloran's upper spine and limbs beyond what might normally have been expected of an injury of this kind: reasons [131].
3. In late November 2005, Mr Halloran suffered a disc protrusion at C6/C7 which exacerbated his neck symptoms and gave rise to right shoulder and arm symptoms, which resolved over time: reasons [98], [101].
4. This exacerbation was not caused, as claimed by Mr Van der Velde, by Mr Halloran shovelling whilst gardening. In fact, all that Mr Halloran did was the physically undemanding task of spreading some potting mix or mulch on a garden bed: reasons [99].
5. The exacerbation in November 2005 was not a 'novus actus interveniens'. It was an acute episode in the course of a chronic cervical injury: reasons [101].
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- 6. The exacerbation of Mr Halloran's pain state in June 2006 was not a 'novus actus interveniens': reasons [102].
7. Mr Halloran's physical disabilities and symptoms were caused by the crash and not by pre-existing degenerative change.
120 His Honour's reasons for making the findings he did about the alleged 'exacerbation' in November 2005 involved, it appears to us, an acceptance of both Mr Halloran's evidence that the work he did in his garden was not physically demanding and 'Mr Narula's explanation of the pathology': reasons [101]. We interpret his Honour's reference to 'the pathology' as being a reference to Mr Narula's opinion in his report dated 12 June 2009, set out earlier at [35].
121 His Honour's findings in relation to the alleged 'exacerbation' in June 2006 were based, in part, on an acceptance of Mr Halloran's evidence and, in part, on what his Honour said was the unchallenged opinion of Mr Narula, that this exacerbation was indirectly related to the neck injury sustained by Mr Halloran in the crash: reasons [100].
122 With respect to his Honour's finding that the November 2005 alleged 'exacerbation' was not a 'novus actus interveniens', we have reached the view that his Honour's reasons were inadequate.
123 Each of Dr Kagi, Mr Bath and Dr Marsden considered that the disc protrusion, having regard to the absence of any evidence of disc injury in the CT scan taken at Royal Perth Hospital in May 2005, was not related to the accident, but was a new pathology caused by a separate and unrelated acute incident. Dr Kagi's evidence was that the accident did not make Mr Halloran more susceptible to such an injury. Dr Marsden's evidence was that he was unable to say: ts 199. Although, as we earlier observed, Dr Kagi thought the acute incident was the digging incident, he said that if it was not that incident then it was some other acute episode.
124 His Honour did not deal with the contrary opinions of Dr Kagi, Mr Bath and Dr Marsden when he addressed the issue of the first alleged 'novus actus interveniens'. In our opinion, he was required to address their evidence and explain why he rejected it before reaching the conclusion that he did.
125 While there is no challenge in this appeal to his Honour's acceptance of Mr Halloran's evidence in respect of what occurred in the garden, that finding alone was not sufficient to resolve this issue. This is because Dr Kagi, Mr Bath and Dr Marsden were firm in their view that the pain
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- Mr Halloran experienced was caused by an acute episode of some kind, which was not the accident, and there remained a hypothesis that something other than the gardening caused the disc protrusion.
126 With respect to the plea of 'novus actus interveniens' in relation to the June 2006 incident, we have also reached the view that his Honour's reasons are inadequate.
127 In his analysis of the expert evidence relevant to the issue, his Honour only referred to the evidence of Mr Narula. He did not refer at all to the opinions of Dr Marsden and Dr Kagi that Mr Halloran's lower back pain was not caused by the crash. Dr Marsden's opinion on this point is based on the gap in time between the crash and the onset of the symptoms. Dr Kagi's opinion is based on the time gap and the degenerative change at the L5/S1 level (which was evident from the CT scan taken on 27 June 2006). Each opinion required consideration and analysis by his Honour.
128 It is true, as Mr Clyne pointed out in his submissions on appeal, that Mr Narula was not cross-examined about his opinion. But, then again, neither Dr Marsden nor Dr Kagi was cross-examined in respect of his contrary opinion.
129 His Honour's reasons on the June 2006 episode do not refer to the conflicting opinion evidence, and he does not sufficiently set out how it is that he came to accept the opinion of Mr Narula over the opinions of Dr Marsden and, in particular, Dr Kagi.
130 Although Mr Halloran's primary complaint relates to his neck symptomatology, it cannot be doubted that the assessment of general damages to some extent reflected the lower back and leg pain Mr Halloran experienced.
131 We now turn to the adequacy of his Honour's reasons with respect to the findings that Mr Halloran's chronic physical disabilities and symptoms were caused by the crash and not pre-existing degenerative changes.
132 There was a clear conflict of opinions on the issue between Mr Narula, on the one hand, and Dr Kagi, Mr Bath and Dr Marsden, on the other.
133 Mr Van der Velde's case relied upon the evidence of Dr Kagi, Mr Bath and Dr Marsden. The focus was particularly upon Dr Kagi's evidence and upon his (considered) opinion that the neck pain should have
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- settled 'well and truly' by December 2009, and that if Mr Halloran had genuine cause for pain it was because of the pre-existing degenerative change in his cervical spine.
134 It is plain that his Honour could not decide the case without resolving the conflict in the evidence. It is apparent that his Honour resolved it in favour of Mr Narula. However, his Honour does not explain why it was that he came to accept Mr Narula's opinion over that of Dr Kagi, Mr Bath and Dr Marsden. Nowhere in the reasons are the conflicting bodies of evidence clearly identified as such and analysed.
135 His Honour did not, with respect, deal with Mr Van der Velde's contention that by December 2009, Mr Halloran's crash-related injuries would have settled, and any condition he had was caused solely by pre-existing degenerative change. The intellectual process which apparently led him to reject this contention has not been exposed to scrutiny and it is not possible to determine whether the process was infected by appealable error.
136 We do not accept Mr Clyne's submission that once his Honour rejected the pleas of 'novus actus interveniens', there was no alternative case put forward on behalf of Mr Van der Velde because, even with the rejection of these pleas, the issue of whether, by December 2009, Mr Halloran's condition was accident-caused remained.
137 Nor do we accept the submission that it is clear from the reasons that his Honour accepted Mr Halloran as a credible witness and, having done so, it must follow that his Honour accepted that Mr Halloran's chronic condition was caused by the crash. Although his Honour made no specific finding that Mr Halloran was a credible witness whose evidence he generally accepted, that is the effect of the reasons when read as a whole. No contrary position was argued on behalf of Mr Van der Velde in this appeal. However, acceptance of Mr Halloran's evidence does not, on its own, lead to the conclusion that his claim must succeed. This is because the question of what caused Mr Halloran's chronic condition is not one which can be answered by him. To answer the question requires expert medical opinion to identify the relevant pathology which has led to the chronic condition, and how that pathology arose. That is, no doubt, why the parties led expert evidence on these issues.
138 Finally, we turn to Mr Clyne's submission that, as the pre-crash degenerative change in Mr Halloran's spine identified by Dr Kagi had only become symptomatic after the crash, the change prima facie was
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- caused by the crash. In these circumstances, Mr Clyne argued, citing Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, that the onus was on Mr Van der Velde to prove that there was some other explanation for Mr Halloran's condition, which Mr Van der Velde had failed to do. The principle in Watts v Rake was explained by Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168, in this way:
We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.
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- Dr Kagi's opinions in his reasons. Mr Clyne's submissions on this point cannot be accepted.
140 With great respect to his Honour, his reasons on the issue of whether the crash caused Mr Halloran's injuries are inadequate. The award of damages must be set aside.
141 The question then becomes what should happen next? This court has the power to order a new trial: s 59(1) of the Supreme Court Act 1935 (WA). It may do so as to part only of any matter in controversy: s 59(3) of the Supreme Court Act. The court may, if it is satisfied that it has before it all the materials necessary for finally determining the question in dispute, give judgment accordingly: s 59(4) of the Supreme Court Act.
142 In his written submissions, Mr Van der Velde does not ask this court to give judgment in his favour. He seeks instead a retrial of the entire assessment of damages: white AB 17.
143 The request for a new trial in the context of the litigation is to be understood as meaning a new trial as to the assessment of damages and not liability.
144 It may be thought that any new trial should only be on the issue of causation. Generally, the proper course is that if there is to be a new trial it ought to be of the whole case (in this instance, the assessment of damages), unless the court thinks that 'they shall do more injustice by setting the matter at large again': Pateman v Higgin [1957] HCA 62; (1957) 97 CLR 521, 527. See also Waterways Authority v Fitzgibbon [20] (Gleeson CJ, McHugh, Gummow & Hayne JJ agreeing); and CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1 [85].
145 The issue of causation was a central issue in the case. It would be difficult to disjoin this issue from others in the case. Issues of credibility relating to Mr Halloran and the doctors may arise in the course of resolving the issue. Mr Bath may give evidence. It is difficult to predict with certainty how the evidence may play out and how it might impact on the question of damages generally. Certainly, the court cannot dismiss these possibilities. Accordingly, the proper course is to order a new trial generally on the question of the assessment of damages.
Orders
146 For the reasons given, the following orders should be made:
1. The appeal is allowed.
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- 2. The judgment of Staude DCJ is set aside.
3. A new trial on the entire issue of damages is ordered before a different judge.
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