AYUSO v AYUSO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 1 and 2 March 1994, 2 March 1994 [1994] NSWCA 13 Motor vehicle accident — general damages — future earning capacity — future care — causal nexus between accident & lower back problems — total permanent incapacity Clarke J This is an appeal from a judgment given by his Honour J B Phelan on 10 September 1992 in favour of the respondent in the sum of $462,540.98. The case which resulted in that judgment involved injuries sustained by the respondent in two motor vehicle accidents, the first occurring on 19 April 1983 and the second on 7 April 1987. It became common ground during the trial that the disabilities and the injuries flowing from the first accident were much greater than those which resulted from the second and, in the event, the appeal has been brought only in respect of the award of damages for the injuries sustained in the first accident. The respondent was awarded general damages in the sum of $125,000; past economic loss of $149,438; impairment of future earning capacity $200,000; and $42,935 for future care. The challenge that has been mounted puts at issue the awards for general damages, impairment of future earning capacity and future care. The respondent was born in Spain in 1960 and came to Australia at the age of two. In 1975 she left school having obtained her School Certificate. She attended a business college for three years and appears to have worked after leaving school as a shop assistant with various retail shops. At the time of the first accident she had been working for Just Jeans for about six months. In that accident she was riding as a pillion passenger on a motor cycle being ridden by her husband whom she had married in 1981. The cycle had been proceeding along the road at about sixty kilometres per hour when suddenly the brakes were applied and the cycle fell to the ground, skidded, righted itself and then fell down again. Liability was admitted and the Court was concerned only with the assessment of damages. Although the respondent had suffered a fracture of her coccyx in 1978 in a fall, she had no continuing pathology from that incident and it was accepted in this Court that there was no causal nexus between that event and her present problems. She said that after the accident she, the respondent, "felt crushed'', meaning that she had pain everywhere. She consulted her local doctor, Dr Hsu, who referred her for physiotherapy. Initially her problems concerned her head, her shoulder, her arms and her neck and her upper back. She was off work for ten days but the pain continued. She first noticed low back problems developing about four months after the accident and they have continued to trouble her to the present time. They are not, however, of the regularity or severity of the continuing problems in the general occipital area and in many ways they pale into insignificance in comparison with the occipital problems. 2 UNREPORTED JUDGMENTS Many grounds of appeal were taken but I am bound to say that the written submissions which were filed supporting those grounds of appeal appear to have had little regard to the way that the trial was fought, or to the issues which were contested at the trial. In saying that I do not mean to be critical of counsel, who was not counsel at the trial, but I am concerned at the development of arguments in this Court on points which were not taken at the trial and which could possibly have been met by evidence led at the trial. In view of my conclusions in relation to the arguments that were put by counsel for the appellant, it is unnecessary to say any more about that subject other than that I am of the opinion that more care should be taken to ensure that the arguments in this Court are restricted to issues contested at the trial, subject, of course, to the exceptional cases to which the High Court has referred which generally involve straight-forward questions of law. The first submission was to the effect that his Honour erred in that he compensated the respondent in respect of her low back disabilities. It was submitted that the evidence did not support a causal nexus between the first accident and those low back disabilities. It should be pointed out at the outset that his Honour did compensate the respondent in respect of those disabilities insofar as he took them into account in assessing general damages, and in evaluating her capacity for work and her need for care. In doing that his Honour was, in my respectful opinion, perfectly correct. He would, if he had not done so, have fallen into significant error. I say that for two reasons. In the first place, the issue seems to me to have been ventilated for the first time in this Court. When counsel was asked to point to anywhere in the appeal book which suggested that the issue had been raised in the trial, he was unable to do so. There is in my opinion a very good reason why there is no indication in the appeal book that the issue was contested at the trial, and that presents the second reason why I think the submission is without any substance. I have already referred to the fact that the respondent consulted a local doctor, Dr Hsu. She did this on the day after the accident and he treated her for many years thereafter. On 3 February 1988 he sent a report to the respondent's solicitors and this report was tendered at the trial. It constituted part of the medical evidence which was made up wholly of medical reports. No doctor was required to attend for cross-examination and therefore no oral challenge was made to anything which appeared in the reports, and the trial judge was required to assess the case only on the evidence of the respondent and the medical reports. In his 1988 report Dr Hsu said: "The injuries she suffered as a result of the accident were severe strain injuries to the cervical spine and strain injuries to her lumbo-sacral spine and concussion." This statement, in my view, presents a complete answer to the submission which I shall describe in more detail now. Counsel submitted that as it was clear that there was a four months gap between the accident and the onset of low back symptomatology, it would be most unusual to find a causal nexus between the two. Furthermore, although doctors supported such a causal nexus, those doctors did not expressly state in their reports that they had received a history of the four months gap. Accordingly, their opinions, which had linked the accident and the lower back problems were based on a false history, were worthless and should be disregarded. Once those opinions were disregarded there was no evidence of a causal connection and the respondent failed to discharge her onus. I would add URJ AYUSO v AYUSO (Clarke J) 3 to what I earlier said, the statement that no doctor denied the existence of a causal connection, and in the absence of any other event which may have led to the onset of low back pain, it may well have been open to his Honour in the light of the evidence, and despite the suggested lacuna in the various doctors' reports, to have reached a conclusion that there was a relevant link. However, it is unnecessary to speculate on that matter because there could be no doubt that Dr Hsu had the correct history as he saw her and treated her from the day after the accident, and in the light of his unchallenged statement linking the low back with the accident, I would regard the submission as totally lacking in substance. There was linked with this submission another one to the effect that his Honour misunderstood the respondent's evidence as to the degree of low back problems, but I do not propose to elaborate on that submission; it was a defence at the heel of the hunt and it was based on a misunderstanding of what his Honour was saying, which was in fact related substantially to the cervical area. The second submission, which is the one which took most time, was that his Honour erred in finding that the respondent was permanently incapacitated for work. This submission had two separate bases: the first was that his Honour erred in declining to accept the evidence of Dr Wright, whose report had been tendered on behalf of the appellant; and the second was, that even if one rejected that submission, the remaining evidence which his Honour accepted did not support a case of total permanent incapacity. It is important at this stage to say something more about the plaintiff's cervical problems. I will concentrate on them because they are undoubtedly the major cause of her disability and against which, as I said earlier, her low back problems pale into almost virtual insignificance. She complained very shortly after the accident of severe and persistent pain and numbness extending down the back of the head and down both her arms, associated with weakness. She was referred by Dr Hsu in February 1985 to Dr Smith, who is said to be a specialist in low back pain. He received a history of pain radiating from the neck to the fingers of both hands which was aggravated by walking, standing, sitting and driving and relieved by lying. He noted she had manipulation under anaesthetic, and the doctor outlined in his report a history of manipulations and nerve conduction studies that she had. On 22 January 1986, which was nearly twelve months after he had first seen her, Dr Smith noted that she had reached the end of her tether and he booked her in for cervical discography, a procedure which he described as very distressing. After the discograms had been taken the doctor concluded she would probably be helped by an anterior fusion at the level of C4/5 and he left her with the alternatives of fusion or admission to cervical traction. Not surprisingly the respondent sought a second opinion and was seen by Dr Anthony Hodgkinson, an orthopaedic surgeon. Eventually, on 21 May, that doctor carried out an anterior interbody fusion at the C3/4 and C4/5 level at the Adventist Hospital at Wahroonga. The respondent had markedly improved conditions in her left side following that procedure, but persisting pain and numbness in the right side of her body; indeed, her left side problems substantially disappeared. Nonetheless, the right side symptoms continued and when Dr Hsu saw her in February 1988 she was then complaining of severe persistent pain and numbness from the right side of her head and face, radiating down her right arm and hand; the pain was associated with numbness and pins and needles sensation and a loss of strength in the right arm. The respondent herself said that those problems had 4 UNREPORTED JUDGMENTS continued to the time of trial and she rated them on a scale of 10, with 10 being the worst pain. She said that in general, which would be, perhaps, three days a week, she would suffer pain at the 10 level and three or four good days when the pain would only be at the 7 level. There can be no doubt she was extremely distressed with pain, although it should be pointed out that she did continue working after the accident, initially in full-time work and subsequently on part-time work until a week before her fusion. On 20 January 1989 she had a son, following which there was a marked increase in her low back problems which thereafter continued to trouble her more than they previously had, although they were of a more intermittent nature and associated with activities involved in looking after the baby. It is worth noting that in May 1989 she was seen at the Port Kembla District Hospital and was then described as being in a crisis situation with her neck and arm pain following the birth of her child. There is other medical evidence, to some of which I will return, but the overall picture painted is of unrelenting severe and debilitating symptoms in the neck, head, right shoulder and right arm. Much of the assessment of the case depended upon his Honour's evaluation of the respondent, if for no other reason than that while she was strongly supported by a large body of medical evidence, Dr Wright suggested in effect that she was '' putting it on" or "malingering". He did not use either of those words but he did say that his general view was that within a few months of each accident she had recovered to her initial stage and that in October 1991 when he saw her there was no evidence of accumulated pathology in any regional tissue. He said she was a charming, courteous person but thought if she was the slightest bit interested she could work. He believed she had a mild permanent impairment because of the two level cervical fusion. As it seems to me, if his Honour accepted her as a truthful witness in recounting her general symptomatology, it would have been hard to accept Dr Wright's opinion. In fact, his Honour did accept her as a witness of truth and preferred the evidence of Dr David Champion and Dr Wolfenden to that of Dr Wright. It is said that his Honour was in error in so doing. The submission was that when his Honour said that Dr Wright tends to be very much guided by what he sees in nerve sensory areas that relate anatomically to areas that might produce pain, he was referring to a traditional medical approach and not one which should have led his Honour to reject Dr Wright's opinion as he did. The full passage reads: "Doctor Wright, like I suppose a number of doctors, tends to be very much guided by what he sees to be nerve sensory areas that relate anatomically to areas which might produce pain, and he has not considered the hyperalgesia as identified both by Dr Wolfenden and by Dr Champion. Thus I am not particularly assisted by his report." As I have already pointed out, I am not sure that his Honour needed to make that statement in the light of the fact that Dr Wright's report could hardly stand once the respondent's evidence was accepted, but the submission that has been advanced is that his Honour had made a fundamental error in that passage which operated to invalidate his overall conclusion. The submission was that Dr Wolfenden did not even mention hyperalgesia much less identify it and it must follow that the trial judge did not fully understand what was meant by Dr Champion when he spoke of hyperalgesia. I will return to this submission in a moment. URJ AYUSO v AYUSO (Clarke J) 5 I think it important to cite in this judgment again what Dr Champion said in a passage which was quoted by his Honour: "The first motor vehicle accident was clearly the major problem, she evidently injured her cervical spine and provoked a right cervico brachial pain syndrome at that time. This has continued to the present. It also appears that she has injured her lumbar spine. Indeed it would have been surprising not to have done so, given the nature of the injury. However the lumber spine disorder was a much lesser problem early on and right through her history until she became pregnant, and there was further exacerbation after childbirth. There is reasonably objective evidence of disorder in the cervical spine, notably at the C3/4 and C4/5 intervertebral discs as reported by Dr Hodgkinson. This was such a severe disorder to justify surgery. In addition, and of considerable importance has been a neuropathic pain state involving her neck and right upper limb with features of cutaneous sensory impairment, increased mechano sensitivity of her peripheral nerves, secondary hyperalgesia, and apparently abnormal electromyography consistent with minor C7 nerve root injury. Whether the main impact of neuropathic input was initially on the cervical spinal nerve roots, or the brachial plexus it is difficult to be sure. The sematic inputs from the cervical spine injury are also important in the extensive secondary hyperalgesia. I shall enclose a copy of a summary of musculoskeletal pain I made for a paper to be presented in September at an international conference which explains in somewhat technical terms the nature of musculoskeletal pain including the secondary hyperalgesia. This hyperalgesia concept is very important indeed and is not well understood by the general medical community. I can provide further information should it be required. Similar to the cervical spine injury, she has had a significant lumbar spine injury with marked aggravation by pregnancy and childbirth and infant caring. There are also neuropathic features here. The lumbar spine disorder has not been adequately investigated. She requires plain radiographs and CT scans. It is important in its own right and I think that these investigations are justified, even for medico legal report, as well as for management." In addition, Dr Champion made an observation that the concept of hyperalgesia was very important indeed in understanding complaints of severe pain of the type of which the respondent complained, and that the concept was not well understood by the general medical community. He offered to provide further information but included a definition which appeared in a paper that he himself was about to deliver to an international conference in September 1992. It is unnecessary to detail the complexities of the concept of which he was speaking but in essence what he said was that it operated at two levels and involved a decrease in the threshold for eliciting pain and the spreading of pain sensation to unaffected tissue, together with pathology interactions between the sympathetic and somato sensory symptoms, and he pointed out that with secondary hyperalgesia there were some summation effects from repeated mechanical stimulae. In the body of his report under the heading "Examination" Dr Champion observed that the respondent's "right head, neck, shoulder and arm regions were hyperalgesic to minor mechanical stimuli with pain provoked consistently spreading to her neck, which she described as a throb sensation. The features generally were those of secondary hyperalgesia...". 6 UNREPORTED JUDGMENTS Now it is true that Dr Wolfenden did not mention the word "hyperalgesia". He thought it most likely that the respondent suffered from occipital neuralgia brought on by injury, muscle spasm, or perhaps arthritic changes in the neck. He did not identify the neuralgia but it is clear that he was talking about the problems of which she complained, which were that since the operation she had suffered from pain from the right occipital region up over the right ear and into the right side of the neck, which was worse on any activity and would also be aggravated by talking. She said that using the right hand would give pain in the hand and there was numbness on the right side of the face which was like a crawling thing. In the light of that evidence I am not persuaded that his Honour was wrong to reach the conclusion that hyperalgesia, as it has been defined or identified both by Dr Wolfenden and Dr Champion, was not present. Certainly Dr Champion identified it in express terms and, as it seems to me, the symptoms of which the respondent complained, and which were identified by Dr Wolfenden, fitted also within the concept. I regard, I must say, the submission as a relatively bold one in the absence of any medical evidence to demonstrate that when Dr Wolfenden was speaking of neuralgia he was speaking of something that had not been encompassed in Dr Champion's concept of hyperalgesia. Furthermore, I think the submission reflected a very unsound base for leading to the conclusion that the Judge, if he was acting correctly, should have rejected Dr Champion and accepted Dr Wright. As I understand the submission, the statement I have quoted provided a reason for supporting the view that Dr Wright was demonstrably right and Dr Champion was demonstrably wrong. Whereas in this case all the medical evidence was tendered in the form of written documentation, and a large body of it is consistent with and explains the very significant symptomatology complained about by the respondent, it would come as no surprise to an appellate court to find that that body of evidence was accepted in preference to a single report which suggested a lack of credibility in the respondent whose credit had been accepted by the trial judge. For my part, not only do I find it impossible to say the trial judge erred in preferring the evidence of Dr Champion, but I would reach the same conclusion, whether or not there had been an acceptance of the respondent. I say this because his evidence is far more consistent with the body of medical evidence in the case and provides a thoughtful explanation for the very severe problems of which the respondent was complaining. These factors to my mind make Dr Champion's opinion far more acceptable than the complete rejection of the evidence seen in Dr Wright's report and what seems to me a lack of any attempt by that doctor to seek to explain the symptomatology. On the contrary, Dr Wright took the view that once there was a lack of consistency between the complaints and the anatomical distribution of nerves, the complaints should be rejected. I therefore would reject the submission that Dr Wright's report should have been accepted. It was then said that even accepting Dr Champion's report, his Honour was wrong to find that the respondent was permanently unfit for work. She herself said that she had been unable to work since the operation. She said that her continuing problems meant she would be an unreliable employee. Dr Hsu in 1988 thought she had been unable to work and indicated her complaints may well be of a permanent residual nature. Dr Champion considered in 1992 that she was URJ AYUSO v AYUSO (Sheller JA) 7 clearly unfit for work and he thought it would be very difficult for her to re-enter the work force in the foreseeable future. To those opinions must be added an observation that the evidence demonstrated that in the years since the accident there has been no amelioration of the neck, arm and head problems, and that the respondent herself has said that at times she felt so bad that she thought she ought to be in a wheelchair but, because she had a supportive family, and she was a strong person, she would battle on. The assessment and evaluation involved in considering a claim for future impaired earning capacity is always a difficult one, and it was undoubtedly a very difficult one in this case. The respondent was still relatively young. She had one child and was pregnant at the time of the trial and there were undoubted uncertainties as to the future. But given the unremitting continuance of her symptoms, and the opinions which I have set out, it seems to me that it was open to his Honour to reach the conclusion that her incapacity was permanent and to compensate her on that basis. I reject that submission also. There was a challenge to the award for future care but, as a result of an agreement reached during the trial, it became apparent that the only argument in support of that challenge was that his Honour was wrong to take into account the lower back condition. I have already rejected submissions to that effect and the ground of appeal asserting error in the award in respect of future care must also fail. The general damages awarded were large indeed, but it is clear that where one is compensating a young woman who has had for many years severe unremitting and disabling pain that the award would necessarily be large. In my view the award in this case was a proper one and nothing has been shown which would indicate that it was beyond the permissible range. At various stages counsel asserted that his Honour had misunderstood the respondent's references to the scale of 10, and counsel even suggested at one stage that scale was only related to the lower back. I do not accept that there was any misunderstanding by his Honour. In my opinion it was clear that the plaintiff was using the scale primarily in relation to her neck and arm problems and that she was seeking to demonstrate, with some success in the light of his Honour's judgment, that her continuing problems were very great indeed. In all the circumstances, the challenges to the award fail and I would dismiss the appeal with costs. Handley JA I agree. Sheller JA I also agree. Clarke JA: The order of the Court is that the appeal is dismissed with costs. Counsel of the appellant: H G Shore Solicitors of the appellant: Peter Jessep (Hurstville) Counsel of the respondent: J P Guihot Solicitors of the Respondent: Duncan and Papac