New South Wales Court of Appeal CITATION : Brazel v Nicholls [2003] NSWCA 387 HEARING DATE(S) : 1 December 2003 JUDGMENT DATE : 19 December 2003 JUDGMENT OF : Meagher JA at 1; Tobias JA at 2; Palmer J at 89 DECISION : Appeal dismissed with costs CATCHWORDS : NEGLIGENCE - Causation - Conflicting medical reports - Whether it was open to the trial judge to reject medical opinions in determining causation on the basis of unreliability - What is required to warrant an appeal court disturbing the finding of a lower court in relation to causation - Burden of proof - Damages - Whether trial judge should have awarded damages for non-economic loss - ND LEGISLATION CITED : Motor Accident Act 1988 , ss 79A Jones v Bradley [2003] NSWCA 81 March v E & M H Stramare Pty Limited (1991) 171 CLR 506 McGroder v Maguire (2002) NSWCA 261 CASES CITED : Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1964) 114 CLR 164 Shorey v P T Limited (2003) 77 ALJR 1104 Winston v Roach [2003] NSWCA 310 PARTIES : Ivan Paul Brazel Suzanne Florence Nicholls FILE NUMBER(S) : CA 41149/02 COUNSEL : A: Ms Sharron Norton SC R: Mr John Guihot SOLICITORS : A: Stacks The Law Firm, Forster R: Vandervords, Sydney LOWER COURT District Court JURISDICTION : LOWER COURT DC 9/01 FILE NUMBER(S) : LOWER COURT Gibbs DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41149/02 DC 9/01 MEAGHER JA TOBIAS JA PALMER J Friday 19 December 2003 IVAN PAUL BRAZEL v SUZANNE FLORENCE NICHOLLS Judgment 1 MEAGHER JA: I agree with Tobias JA. 2 TOBIAS JA: The appellant (the plaintiff in the District Court) sued the respondent for damages arising out of a motor vehicle accident which occurred on the New England Highway on 19 August 1999. The respondent admitted that she owed the appellant a duty of care and that she had breached that duty. Accordingly, the issue before the primary judge was confined to the questions of causation and assessment of damages. 3 On 29 November 2002, Gibb DCJ entered judgment for the appellant and assessed damages in the sum of $2,296.20. Her Honour held that the appellant was not entitled to damages for non-economic loss and hence the damages awarded were confined to economic loss. The appellant seeks to challenge the primary judge's decision before this Court. The background facts 4 The relevant facts are not in dispute. On 19 August 1999, the appellant was driving north on the New England Highway at a speed of approximately 100km per hour. The accident occurred when the vehicle driven by the respondent moved onto the highway in front of the appellant's vehicle, striking the respondent's vehicle broadside. The appellant was wearing a seatbelt at the time. 5 In his Statement of Particulars, the appellant claimed that he sustained injuries to both knees, both shoulders, cervical spine and chest. He further alleged that he suffered severe bruising to both elbows as well as injuries to his groin, testicles, right arm, right hand and back. He alleged nervous shock, post-traumatic stress and other similar sequelae. Based on the written medical evidence tendered before her (there being no cross-examination of any of the medical experts), the primary judge found that the appellant had sustained the following: soft tissue injury to the left knee when it struck the handbrake of the vehicle; soft tissue injury to his cervical spine; soft tissue injury to his right shoulder and chest; and short term bruising to his elbows, right arm and right hand. She found, contrary to his claim, that the appellant had not sustained any head or back injuries due to the accident; nor had he sustained nervous shock or post-traumatic stress. She did however find that he had suffered short-term shock and confusion. The proceedings before the primary judge 6 In circumstances to which I shall return, the appellant alleged that he sustained more than just a soft tissue injury to his cervical spine. On 12 October 1999, he underwent a CT scan of his spine which revealed a moderate diffuse posterior bulging of the C6/7 disc. This was confirmed by an MRI scan which the appellant underwent on 2 November 1999. Dr D A Lyle's report of that procedure contained the following findings: "There is a protrusion of the C6/7 disc. This disc protrusion is central and slightly more marked to the right of the mid-line. It is causing localised narrowing of the central spinal canal and disc material is seen impinging minimally on the anterior on the surface of the cord." 7 On 20 January 2000, the appellant was admitted to St Vincent's Private Hospital under the care of Dr Malcolm Pell. A cervical myelogram and post-myelogram CT scan was performed, revealing swelling of the right C7 nerve root, some under-filling of the nerve and a right C6/7 disc protrusion at the origin of the nerve. The following day, Dr Pell performed a right-sided C6/7 foraminotomy and the C7 nerve root was decompressed. Dr Pell reported that: "There was tight compression at the original of the nerve root where it exits the spinal canal. The nerve lay free at the end of the procedure. The wound was closed in layers with suction drainage. Hopefully this will settle down his pain." 8 A major issue contested at the trial (and which formed the primary issue on the appeal) was whether the C6/7 disc protrusion was caused or contributed to by the respondent's negligence. Furthermore, even accepting that the C6/7 disc protrusion was caused by the accident there was a significant issue at the trial as to whether, after the surgery performed by Dr Pell in January 2000, the appellant was still suffering from any significant pain from the original prolapsed disc, thus rendering him unfit for work. Her Honour found that it was not and consequently assessed the appellant's damages without reference to that particular condition and the pain and discomfort which the appellant had suffered as a consequence thereof. Her Honour also found that all physical restrictions, which had previously resulted from the prolapsed disc, had been substantially resolved by Dr Pell's surgery in January 2000. 9 It was the appellant's case before the primary judge that immediately after the accident he had suffered severe neck and shoulder pain which radiated down his outer arm to his fingers. A number of the appellant's medical practitioners had recorded a history to this effect. I will need to refer to this medical evidence in more detail, but suffice it for present purposes to record that some of those doctors expressed the view (or at least an inference to this effect can be drawn from their statements), that they were of the opinion that the prolapsed disc was a result of the injuries sustained by the appellant in the accident. 10 The appellant's credibility was a significant matter in issue at the trial. Her Honour dealt with this in great detail. Suffice it to say that she did not find him credible. She found that in various respects his answers were evasive and deceptive, and that on other occasions his evidence was disjointed, confused and confusing. His evidence was, so she found, marked by repeated failures of recollection, long pauses and selective answers. 11 Her Honour found that the appellant, during the course of his evidence demonstrated a virtually full range of horizontal and vertical movement of his head and neck, although there were some obvious (but limited) downward restrictions. Two days later, however, he maintained in the witness box that he had suffered great pain because of that demonstration and had only marginal movement of his neck that day. Her Honour did not accept that assertion and considered that the appellant's first demonstration earlier in his evidence more accurately depicted his disabilities so far as his neck was concerned. This was confirmed by video footage obtained by the respondent of the appellant's activity at work on 15 and 16 February 2001, which depicted the appellant undertaking various activities including the driving of his utility, driving and operating a forklift truck, climbing in and out of his vehicle, lifting bin lids and moving freely. 12 According to her Honour, the video further established that the appellant was able to execute a wide range of movements quite freely with both arms and hands and that he moved freely in all respects. His apparent freedom from either pain or restriction of movement, which was evident in the video, was at odds with his evidence that he was suffering from significant incapacity at the time the video was taken. Her Honour said this: "Virtually every one of the activities Mr Brazel was shown performing on the defendant's video was an activity that, at some point in his testimony, Mr Brazel denied the capacity to perform or said he avoided performing for fear of the pain caused." 13 Her Honour therefore rejected as false statements made by the appellant to the respondent's doctors that he struggled to walk and that he had not driven a truck or forklift for any significant period of time since the accident. She concluded in these terms: "I found Mr Brazel's evidence and presentation to be exaggerated and contrived. I do not accept his explanation for the gross restrictions reported by his doctors to be reflective of how he was 'at that hour of that day'. I have not accepted Mr Brazel's evidence where it is contradicted by any contemporaneous record or opinion. I have not accepted his version of his history or the injuries sustained in the accident. I have accepted Mr Brazel's evidence only where it is corroborated by contemporaneous documentary evidence." 14 The primary judge's findings as to the appellant's credibility were, to say the least, damning. The appellant did not seek to challenge those findings on the appeal. He maintained, however, that it was not open to her Honour on the medical evidence to find other than that the prolapsed disc in his cervical spine was caused or materially contributed to by the respondent's wrongful conduct. 15 With only one real exception, the primary judge rejected the medical reports tendered on behalf of the appellant. She found that they were: "brought undone by Mr Brazel's lack of frankness with his doctors. He failed to tell them of earlier injuries and illnesses." 16 The primary judge thus declined to accept the opinion of several of the medical specialists whose reports the appellant tendered upon the basis that they had proceeded upon incomplete, inaccurate or grossly exaggerated histories of presentation. She summarised her findings as follows: "The work histories provided to medico-legal specialists were inaccurate to the point of being misleading. That inevitably undermined the value of the reports of these specialists to whom the inaccurate histories were given. Mr Brazel's reports of his physical capacities and restrictions were equally inaccurate… I have not accepted the opinion of any of the specialists who opined on the basis that after the motor vehicle accident surgery he was capable only of 'phone duties'." 17 A further ground upon which her Honour rejected the opinions of the appellant's medical experts was that they had not been told of the improvement in the appellant's condition following the accident (which he had reported to his physiotherapist, Ms Miller); nor had they been informed of what her Honour refers to as the "hammer incident" which occurred approximately two weeks after the accident. It was immediately after this incident that the appellant suffered the severe pain in his cervical spine that ultimately resulted in the discovery of the prolapsed disc at C6/7. It was common ground that it was this particular aspect of the appellant's injuries that was the most serious and the cause of his claimed unfitness to work and his continuing pain and suffering. 18 The appellant had seen Dr Ross Mellick, a Consultant Neurologist on behalf of the respondent. He had apparently been provided with the results of the radiological investigations which the appellant had undergone, including an x-ray performed on 8 September 1999 which revealed: "small unconvertebral joint osteophytes minimally narrow the C6/7 foramina." 19 Dr Mellick's report of 4 September 2000 concluded: "The radiological evidence indicates that Mr Brazel had significant degenerative disease at the C6/7 level prior to the motor vehicle accident. Any trauma that might have occurred to the C7 nerve root on the right side as a result of the accident on 19/8/99 should be regarded, therefore, to have been in part consequential upon pre-existing degenerative disease and obstruction of the exiting neural canal at that level by that degenerative disease, predisposing Mr Brazel to an injury to the C7 nerve root as a result of the motor vehicle accident." 20 In a subsequent report dated 28 May 2002, Dr Mellick was provided with a number of documents. He did not list these but it appears from the body of his report that most if not all of the reports upon which the appellant relied were included therein. Dr Mellick reviewed these reports in some detail. In response to a report of Dr A G Hobcroft, an orthopaedic surgeon, he opined as follows: "The doctor's report does refer to the radiological findings, those findings being features of degenerative disease. The degenerative disease which is present is age-related and I find nothing in the surgical report which joins co-existing age-related radiological changes aetiologically to the accident." 21 In response to reports of Dr T Maxwell, the appellant's general practitioner, Dr Mellick stated that: "It would accordingly seem likely that if the accident in August 1999 had produced a significant spinal lesion, the neurosurgical appraisal in November of the same year would have identified abnormalities. It will be noted that I was not able to identify evidence of the cervical spine injury or of any significant worsening of the pre-existing degenerative disease to have occurred as a result of the accident either at the time of my first or second assessment of Mr Brazel." 22 Dr Mellick then referred in detail to a report of Dr R McEwin, a medico-legal expert qualified by the appellant. He noted that the report: "did not draw attention to any evidence to indicate the C6/7 lesion was of traumatic origin. These various matters are of some relevance as degenerative disease resulting in disc protrusion may sometimes result in a potential threat to cervical cord function. It would seem that such a threat was interpreted to be present on the basis of the MRI findings. If such a threat were indeed present and for the significant reasons that the operation was done … it does not at all follow that any contribution to that morphological detail arose as a result of the motor vehicle accident. The report of 20/04/00 (Dr McEwin's report) did not provide any information which allows one to relate the radiological changes to trauma and to separate those changes from changes relating to generative disease." 23 After referring to the fact that decompression of the nerve root does not necessarily imply or establish that the changes were of traumatic origin, Dr Mellick referred to the report of Dr Pell of 21 November 2000 in which the latter had opined that: "As a result of the motor vehicle accident on 19/08/99 Mr Brazel sustained a C6/7 disc prolapse…" Dr Mellick's response to this assertion was that he was " not able to identify the base for such a specific attribution ". 24 Dr Mellick then sought to support his opinion that there was no evidence that the prolapsed disc was a result of the motor vehicle accident by reference to the following facts: "an accident which resulted in no indication of a specific spinal injury, no complaint of neck pain to the ambulance officer who assessed Mr Brazel immediately after the accident, no indication for hospital admission, and absence from his pre-accident work of only 10 days duration." 25 Dr Mellick then opined that the appellant did not exhibit abnormalities which rendered him incapacitated for all employment, although his cervical pathology did render him incapacitated for unrestricted function. He was unable to identify features which would indicate that the appellant was not thereafter able to lead a normal life. 26 I have quoted Dr Mellick at some length because it was his evidence that her Honour accepted. She did so in the following terms: "I accept that opinion that there was a degenerative disease, which predisposed Mr Brazel to cervical injury. Dr Mellick was not told of the hammer incident. His report therefore does not establish any causal nexus with the motor vehicle accident in preference to or running through the hammer incident, which I find was the trigger that activated the generative disease which Dr Mellick identified as having predisposed Mr Brazel to an injury." 27 The primary judge's ultimate conclusion on the issue of causation was as follows: "The plaintiff has failed to satisfy me of the existence of the physical injuries and disabilities for which he contends as well as the causal nexus with event occurring after the hammer incident. I am equally unpersuaded of the existence of any psychological or psychiatric condition in any causally related to the motor vehicle accident, if existing at all." 28 So far as any assessment of the quantum of the appellant's damages was concerned, the primary judge was bound by the provisions of s 79A(3) and (4) of the Motor Accident Act 1988 (the Act), which provided as follows: "(3) No damages are to be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person's ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period not less than 12 months by the injury suffered in the accident. (4) No damages may be awarded for non-economic loss unless the severity of the non-economic loss of the injured person is at least 15% of a most extreme case." 29 I have already referred to her Honour's findings with respect to the soft tissue injuries, which she accepted were sustained by the appellant in the accident. In terms of s 79A(3), her Honour found that all of these injuries resolved within less than 12 months and that consequently threshold referred to in that provision was not satisfied. She further found that that part of the appellant's condition that would be compensable under the Act would at its highest amount to no more than 10% of a most extreme case. Accordingly, even if the threshold under s 79A(3) had been satisfied, that contained in s 79A(4) had not. Accordingly, her Honour declined to make an award of damages for non-economic loss. Furthermore, in light of her findings (based on Dr Mellick's opinions as well as those of (consultant clinical psychologist) Dr Wendy Roberts, concerning the psychiatric conditions from which the appellant had suffered for many years prior to the accident, her Honour was not prepared to find that he was entitled to any damages for future economic loss as the threshold referred to in s 70A of the Act had not been satisfied. Accordingly, her Honour's award was confined to loss of earnings for the three weeks immediately following the accident and past out-of-pocket medical expenses. The "hammer incident" 30 As I have observed, the appellant's case before the primary judge was that the prolapse to his C6/7 disc was caused or materially contributed to by the accident. The respondent's case was that the disc protrusion was unrelated to the accident but was caused by what her Honour referred to as the "hammer incident". It would appear that this incident came to the notice of the respondent's legal representatives when they were served with a report of the appellant's physiotherapist, Ms Jenny Miller, dated 22 October 1999. In that report, Ms Miller stated that the appellant had attended upon her for physiotherapy four days after his accident. He reported slight neck pain immediately following the accident which progressed to more severe neck pain as well as shoulder and right chest pain. He had no prior history of cervical problems. On her initial physical examination of the appellant, the movements of his cervical spine were restricted to approximately two thirds of expected ROM and all movements produced right anterior chest pain. On palpation, he was generally tender at all levels, particularly C5-T1 on the right side. 31 Ms Miller formed the general impression that the appellant had sustained a typical "whiplash" type injury involving hyperflexion and hyperextension of the cervical spine with associated trauma to soft tissue and facet joints especially of the lower right cervical spine. She stated: "After three treatments, Mr Brazel's anterior chest pain was much improved and although he has some generalised neck and shoulder discomfort and stiffness, he decided to monitor his progress without physiotherapy. I advised him to contact me if he did not continue to improve." 32 The evidence does not establish the time at which Ms Miller's initial three treatments of the appellant occurred. The schedule of payments made to her by the Workers Compensation Insurer indicate that the first physiotherapy account covered the period 23 August 1999 to 24 September 1999 at a total cost of $504. A further period of physiotherapy covered the period 7 October 1999 to 25 October 1999 at a cost of $259. One might assume that there was a treatment effected on 24 September and a further treatment on 7 October. The period of time between those treatments was 12 days. However, it appears to me that there must have been more than three treatments between 23 August 1999 and 24 September 1999, given that the cost of those treatments amounted to $504. 33 The relevance of the foregoing lies in the following evidence of Ms Miller in her report of 22 October 1999: "I saw him again ten days later when he reported that he had been improving until he had tried to do some hammering and after a minute he experienced severe R neck, shoulder, arm and hand pain which continued for two days. He reported numbness in his R hand and R face. … On subsequent examination his cervical movements were severely restricted with one third to one half normal ROM. He was extremely tender to palpate at C6-T1 centrally and to the R with referral to the R elbow. … At this stage I revised my initial diagnosis to include a disc injury at C6/7 and treated accordingly. This was later confirmed by CT Scan which demonstrated a moderate diffuse posterior bulge of the C6/7 disc as well as osteophytic change encroaching slightly on the L C4/5 lateral recess." 34 The report continued to the effect that the appellant subsequently presented with symptoms of pain in his cervical spine which was managed with physiotherapy, but that his cervical symptoms remained and were easily aggravated by sudden movements, sustained positions and driving. 35 The primary judge referred to Ms Miller's report of 22 October 1999 in these terms: "Ms Miller's observation that she revised her 'initial diagnosis' to include a disc injury at C6/7 is the sole opinion evidence before me drawing any (informed opinion) as to a nexus between the hammer incident and the injuries sustained in the motor vehicle accident. It is a less than detailed or reasoned opinion as to any such nexus…" 36 The appellant was cross-examined with respect to the hammer incident referred to in Ms Miller's report. Initially, he could not remember the incident although he agreed that it was possibly true. He accepted that if he had so informed Ms Miller, it was true. 37 Two days later (there was a day when the appellant did not give evidence due to ill health and the sudden death of his father), the appellant "suddenly produced a very precise recollection of the hammer incident" (as her Honour described it). Such recollection is contained in the following exchange: "Q. Yes what were you doing using a hammer at home in the first couple of weeks of September 1999? A. I was out the back watching my son build some shelves for our gardening shed. It was made out of two by one pine, not hardwood, ply, 10 ml if that ply shelving. My son had cut all the timber, organised to build the shelf. I held part of the structure while he nailed the frame together and he held the shelving on the beams and while he held that in place I attempted to drive some masonite tacks that would be approximately three-quarters of an inch long, would be just if they were two ml thick. I attempted to tack the sheet in place while my son held it, and I could not do that exercise. Q. Was it the case that after a minute of doing that hammering, you experienced right sided severe neck pain which continued for two days? A. That did aggravate the condition that I had yes. Q. I'll ask my question again, was that the occasion after which you experienced severe sided right neck pain which continued for two days? A. That did aggravate the condition that I received in the car accident." 38 The appellant's wife (Ms Brazel) confirmed the history given by the appellant to Ms Miller. She collected the appellant from the hospital on the day of the accident and drove him home. At the time the appellant was apparently very sore in his chest and shoulders. The following exchange between Ms Brazel and the examiner in chief then took place: "Q. And did those areas of soreness extend to other places after a little while? A. Yes, into his neck. Q. How long was it to your recollection before the neck became a problem? A. About two weeks, two – yeah." 39 Ms Brazel also recalled the incident with the hammer, although, as her Honour pointed out, she specifically rejected any recollection of complaints about severe neck pain. The following exchange took place: "Q. Can you recall an occasion, when he was complaining of severe pain but immediately following doing work with a hammer, not long after the car accident? A. Yes. Q. Do you know when that was? A. Yes, it would have been when my son and Paul were building a shelf. … Q. After that incident it was apparent to you that your husband was suffering from very severe neck pain, is that fair to say? A. No." 40 Importantly, however, the appellant ultimately acceded to what the respondent was putting to him with respect to the effect of the hammer incident in the following exchange: "Q. So what I'm suggesting to you Mr Brazel is that after this car accident, you had very slight complaint of neck, shoulder discomfort and stiffness, that that improved by the time you'd had three treatments with Miss Miller and that you only suffered from severe right neck, should, arm and hand pain after there had been an incident where you were hammering, do you agree with that? A. I can't disagree with it no. Q. After the hammering incident which took you back to Miss Miller, the lower part of your neck was extremely tender to touch, do you agree with that? A. Yes I would agree with that. Q. After you went back to Miss Miller, after the hammering incident, the movement of your neck was so reduced that you were only able to move your neck somewhere between a third and a half of the normal range of movements, do you agree with that? A. Yes." 41 On the basis of the foregoing evidence, the primary judge found that although the appellant (immediately after the accident) was suffering from very slight neck and shoulder discomfort and stiffness, his condition had improved by the time he had undergone the three physiotherapy treatments with Ms Miller. Further, she found that the appellant had only suffered from severe right neck pain and pain down his arm and into his hand after the hammer incident, which caused him to return for further physiotherapy treatment. Accordingly, her Honour was of the view, consistent with Ms Miller's evidence (which she accepted), that initially the appellant had suffered only from generalised neck and shoulder discomfort and stiffness; he had not suffered from pain attributable to any specific part of his cervical spine in the C6/7 disc area in particular. 42 Apart from Ms Miller, the appellant had also seen his general practitioner, Dr P Maxwell the day following the accident (20 August 1999). For unexplained reasons, Dr Maxwell provided two reports, both dated 14 December 1999, but to the same addressee. In the shorter of those reports she said this: "Mr Paul Brazel was involved in a Motor Vehicle Accident on 19.8.99 while working. He sustained soft tissue injuries including his chest, R shoulder and neck. With improvement he returned to light duties but quickly developed increasing neck pain and tingling in his fingers. Investigations revealed that this was due to an initially undiagnosed C6/7 disc prolapse, the symptoms of which became obvious as Mr Brazel became more mobile. …." 43 In her second report of the same date, Dr Maxwell referred to the appellant's symptoms as including pains in his anterior chest wall, right shoulder, neck and left knee "due to soft tissue injury'". She then said this: "There is no history of a previous history of this condition. Approximately two weeks after the injury Mr Brazel developed increasing neck pain and numbness of the ulnar side of his R hand and forearm. An x ray of the cervical spine and R shoulder showed no fractures. CT scan of his neck revealed a diffuse posterior bulging of C6/7 disc. This was later confirmed by MRI with no evidence of intrinsic signal abnormality within the spinal cord. Mr Brazel's injuries were incurred while driving for work with JR. & EG Richards Pty Ltd., and therefore are directly due to his employment." 44 The primary judge noted that Dr Maxwell had made no reference in either of her reports to the hammer incident reported to Ms Miller, although she had recorded that there had been a significant change to the appellant's neck condition two weeks after the accident. Her Honour then observed: "All I know is there was an improvement, a return to work, a lack of obvious distress upon examination on 7 September 1999 by Dr Clery, an orthopaedic surgeon, then an unexplained by significant hammering incident that produced very severe pain, which lasted 2 days and occurred some 2 weeks after a motor vehicle accident in which Mr Brazel specifically reported no neck or spinal injury to the ambulance officers." 45 Prior to making the above observation and after referring to Ms Miller's report of 22 October 1999 in the terms I have recorded in [33] above, the primary judge said this: "I do not have the benefit of medical reports addressing the causal nexus for the simple reason that the incident has not been disclosed in any relevant detail to any of the specialist doctors reporting. I do not have the benefit of any report that might have assisted in determining the causal nexus. Dr Maxwell's reports are of no assistance. I have no medical opinion as to the relationship between any such incident and the complaints now made." 46 Dr Maxwell referred the appellant to Dr Glen Merry, a neurosurgeon and clinical professor at the University of Queensland. In a report dated 9 November 1999, Dr Merry recited the following history as provided to him by the appellant on 28 October 1999: "… He developed pain across the anterior aspect of his chest extending from one shoulder to the other and including his neck. There was no brachial neuralgia. Approximately two weeks later he was aware of numbness involving the ulnar side of the right hand and forearm. He later developed neck pain and at the same time was aware of numbness involving the lower limbs and also extending to the ulnar side of the left hand. There was an episode of numbness on the right side of his face." 47 The appellant's clinical presentation was reported by Dr Merry to include slight neck pain and: "5. Episodes of severe sub occipital pain associated with spasms, worse when using a hammer or jarring forces applied to the neck. This pain settled at rest and considered to be his main problem. This has been present since two weeks after the motor vehicle crash. Lying under a truck for repairs also produces neck pain and headache." 48 On clinical examination, Dr Merry reported tentative cervical spine movements. Having referred to the x-ray of the cervical spine of 8 September 1999, the CT scan of the cervical spine of 12 October 1999 and the MRI cervical spine performed on 2 November 1999, he expressed his opinion in the following terms: "This patient has a C6-7 prolapse producing secondary muscle contraction syndrome involving the greater occipital nerve, shoulder girdle (a right rotator cuff lesion) and the anterior scaleni. This is not associated with a neurological deficit." 49 It is to be noted that Dr Merry did not expressly attribute the disc prolapse to the accident. 50 The primary judge dealt with Dr Merry's report in these terms: "On the face of the report, Dr Merry was not aware of any separate incident or the hammer incident. His report is of no assistance in determining whether there be any causal (sic) nexus. The only reference to hammering is by way of aggravation through jarring. I do not infer that he knew of the incident two weeks after the accident." 51 I have already referred to Dr Pell's report of 27 January 2000. Here he recorded the history provided to him by the appellant in these terms: "He had neck pain and right arm pain which had been present since a motor vehicle accident five months ago. The pain had been worsening and radiating through the outer arm to the middle three fingers. Using the arm aggravated the pain. He also described some swelling of the hand and that it would go cold. He has been unable to return to work as a truck driver." 52 In a subsequent report dated 21 November 2000, Dr Pell provided a medico-legal report in which he described the history given to him as follows: "The history given to me was that there had been neck pain and right arm pain which had been present since a motor vehicle accident some five months before … (after the accident) (h)e noted immediate neck pain and across his shoulders and was taken to Kuringai Hospital where he was discharged after a period of observation that required further admission for episodes of 'spinning out'. The pain is in his neck and radiates down the right arm into the outer arm and forearm to the middle three fingers of the right hand. The pain has been worsening since the time of the accident …" 53 After noting the results of the CT scan and MRI of his cervical spine, Dr Pell observed that he had reviewed the appellant on 9 March 2000 and had last reviewed him on 31 August 2000. After referring to the fact that there had been further improvement and that the appellant had been able to return to work on limited hours, he noted that the appellant was still experiencing pain in his arm and that his major concern was episodes of "spinning out". However, Dr Pell did not believe that this originated from his cervical spine. He stated: "As a result of a motor vehicle accident on 19 August 1999, Mr Brazel sustained C6/7 disc prolapse with evidence of C7 nerve root compression with weakness of elbow extension, of finger extension of the right arm. He has had surgical decompression of the nerve root with some improvement in his pain." 54 After referring to a post-operative MRI scan which showed no ongoing nerve root compression, Dr Pell further opined that the appellant was only fit for work for limited hours and that his prognosis was guarded. 55 The primary judge's finding with respect to Dr Pell's reports was that, as with the other reporting specialists, he had not been told anything about the hammer incident and attributed prolapse to the motor vehicle accident without expressing any opinion on the causal nexus with the hammering incident." In particular, Dr Pell's opinions were premised on a history of worsening neck and right arm pain which had been present since the accident, a history that her Honour had rejected as inaccurate. 56 Finally, on 19 July 2000, the appellant was seen on by Dr Richard Sekel (a consultant in occupational medicine) on behalf of the respondent. He recorded in his report of that date that the appellant had stated the following: that he had sustained pain in the posterior surface of the neck; that he consulted with Dr Maxwell and had been off work for approximately 10 days; that he had then returned to all normal duties "but after a few days, he noticed aggravation of the pain in the right shoulder, neck and right hand." He therefore returned to Dr Maxwell, had a further two weeks off work and then, after three days back at work, had such severe pain that he ceased work indefinitely. Dr Sekel's opinion on "attributibility" was that: "on the balance of probabilities, the cervical intravertebral disc lesion and compression of the right 7th cervical nerve root were directly due to the motor vehicle accident of 19/8/99." 57 The primary judge rejected this aspect of Dr Sekel's opinion in these terms: "Dr Sekel's conclusion that Mr Brazel had sustained a cervical disc lesion and compression of the 7th cervical nerve root is significantly impaired by the inaccurate history on which it rested, just as were the conclusions of the plaintiff's doctors and medico-legal specialists." 58 It is apparent that what her Honour meant was that Dr Sekel had not been told that the appellant's neck pain had improved such that he was in no obvious distress approximately two weeks after the accident and was thereafter able to resume his normal employment duties until the hammer incident, which had produced very severe pain to his neck radiating down his arm to his fingers. Had Dr Sekel been aware of this history as well as the opinion of Dr Mellick that the appellant had a pre-accident degenerative disease to his cervical spine, his opinion as to whether the disc lesion was causally connected to the accident may have been different. 59 In essence, therefore, only Ms Miller and Dr Pell directly related the disc prolapse sustained by the appellant to the accident. Although Drs. Maxwell and Merry referred to the fact that some two weeks after the accident the pain in the appellant's neck radiating down his arm to his fingers became severe, they did not directly relate that increased neck pain to the accident. In these circumstances, her Honour was of the opinion that the appellant had not established a causal connection between the prolapse of his C6/7 disc and the accident. 60 The primary judge did, however, characterise the hammer incident as a novus actus interveniens. She did so in these terms: "The plaintiff's counsel submitted, not unreasonably, that the consequences of the motor vehicle accident had created a vulnerability, as indeed Ms Miller had noted was likely in her report when she said that his 'cervical symptoms remain very easily aggravated by sudden movements, sustained positions and driving.' The flaw in the plaintiff's submissions arises from the lack of relevant medical evidence. The only report which notes the existence of the hammer incident is the physiotherapy report. Ms Miller's observations are of vulnerability after the onset of the problem and her opinion as to causation limited to the comment that she 'revised' her diagnosis. Is it open to me to infer that there is a nexus between the consequence of the hammer incident and the motor vehicle accident in the absence of relevant medical reports? Is it open to me to find that the injuries wrought in the motor vehicle accident created a vulnerability, which was later triggered in the hammer incident about 2 weeks later? The defendant says that I would be speculating in so doing in the circumstances where it is not addressed in any of the medical reports." 61 Her Honour accepted the respondent's submission that there was no expert medical evidence drawing a causal relationship between the accident and the injury sustained in the hammer incident. This finding is predicated upon a further finding of her Honour that the hammer incident was: "the relevant trigger that activated the degenerative disease which Dr Mellick identified as having predisposed (sic) Mr Brazel to an injury." 62 Although the primary judge seemed to consider that the hammer incident was a novus actus, under the heading "No evidence as to causal relationship", she came to the following conclusion: "I do not accept Mr Brazel's evidence. The evidence is not such that I am able to find that the defendant's negligence was such as to expose Mr Brazel to a vulnerability which was activated by the hammer incident. I do not find that the consequences of the defendant's admitted act of negligence placed Mr Brazel in the position where he was subjected to the subsequent injury (the hammer incident) by reason of a vulnerability caused in that accident and thus by the defendant's admitted breach of duty." 63 The essence of the above findings, as I understand them, and the basis of her Honour's reasoning in coming to those findings appear to be as follows: (a) on the basis of Dr Mellick's evidence, the appellant was suffering from a pre-accident degenerative disease to his C6/7 disc; (b) as a consequence of this degenerative disease, the disc was vulnerable to further damage such as that which occurred, namely, disc protrusion which may or may not have been caused by trauma; (c) there was trauma which activated that vulnerability and caused the disc protrusion, namely the hammer incident; (d) as the appellant's neck was improving prior to the hammer incident and as it became significantly worse immediately after that incident, it followed that, as a matter of probability, it was the hammer incident that caused the disc protrusion; (e) there was no acceptable medical evidence which on the balance of probabilities causally linked the disc protrusion directly to the injuries sustained by the appellant in and at the time of the accident or which established that the accident caused the disc to be more vulnerable than it had been prior to the accident as a consequence of the pre-existing degenerative disease. The appellant's submissions 64 The appellant submitted that the primary judge erred in her findings on the issue of causation in two respects. The first was that she dealt with the issue of causation as one involving a novus actus interveniens. The second was that she did not give proper consideration and weight to the opinions of Ms Miller, Dr Merry and Dr Maxwell who, is was contended, were aware of the hammer incident (or something akin to it) but still opined, either expressly or inferentially, that the disc protrusion or lesion at C6/7 was caused or materially contributed to by the accident. Her Honour should have found, so it was submitted, that the prolapsed disc was caused by the accident and was merely aggravated by the hammer incident. This was so, particularly, as Dr Maxwell had noted in his examination of the appellant on 27 August 1999 and "he was still unable to life heavy spanners or other weighty objects". In his report of 28 October 1999, Dr Merry had referred to episodes of "severe sub-occipital pain associated with spasms, worse when using a hammer or jarring forces applied to the neck" which, the doctor noted, had been present for two weeks after the accident. The respondent's submissions 65 The respondent submitted that given the primary judge's findings on credit, it was open to her Honour to find on the medical evidence that the appellant had suffered only a soft tissue injury at the time of the accident, which had significantly improved by the time of the hammer incident such that he could return to his normal employment duties without difficulty. Furthermore, it was open to her Honour to find that the appellant suffered from a degenerative disease to his cervical spine which made him vulnerable to injury of the nature of a prolapsed disc. Given the hammer incident and the immediate pain thereafter, it was also open to her Honour to find that the latter was the incident which triggered the prolapsed disc and that there was no acceptable medical evidence based on an accurate history of the appellant's symptoms which supported the finding that the prolapsed disc occurred at the time of the accident or that the accident made the appellant's cervical spine more vulnerable to the hammer incident which ultimately triggered the prolapse. 66 The respondent further submitted that it was not necessary to deal with the hammer incident as an novus actus interveniens as the primary judge had made it clear that there was no acceptable evidence linking the accident to the prolapsed disc, either directly or indirectly. Resolution of the issues 67 Under the heading "No evidence as to the causal relationship" (being a sub-heading to the primary heading "The hammer incident and the causal nexus: a novus actus interveniens?"), the primary judge accepted the submission of the respondent that "there is no medical evidence in this case which says that he had a neck injury, it was rendered vulnerable, hammering either aggravated an underlying lesion or brought it about, but it would not come about had there not been the car accident". 68 As the primary judge recorded in that part of her judgment set out in [61] above, the appellant's submission was that the accident had created or increased a vulnerability to the appellant's cervical spine, to the C6/7 disc, in particular which would be easily aggravated by "sudden movements, sustained positions and driving" including, no doubt, the hammer incident. Her Honour thus asked herself the question: "is it open to me to find that the injuries wrought in the motor vehicle accident created a vulnerability, which was later triggered in the hammer incident about two weeks later?" I see no error in her Honour's approach or in her negative answer to the question she posed to herself. 69 The history of the appellant's symptoms, which her Honour accepted as accurate, justified her finding that it was the hammer incident which triggered the prolapsing of the appellant's C6/7 disc. It followed from that finding that her Honour was not satisfied that the prolapsed disc had been caused directly by the accident. The question then was whether the accident had caused a greater vulnerability to that disc than had existed prior to the accident. Again, on the evidence which she accepted, her Honour was not satisfied that any greater vulnerability to the appellant's cervical spine was caused or materially contributed to by the accident. 70 This case illustrates in stark terms the difficulties now commonly experienced in the District Court of accepting into evidence, without more numerous reports of medical experts which often are not only conflicting between themselves, but also often contain internal inconsistencies or ambiguities. Further, they are frequently based on histories which are found to be inaccurate. Had some or all of the medical experts been orally examined and cross-examined and an assumption as to the appellant's history as ultimately accepted by the primary judge put to them so that they had the opportunity to voice an opinion on the basis of that history, then no doubt the evidence would have proved far more satisfactory. However, the primary judge was required to deal with the matter as presented by the parties, with the consequence that questions of onus became important. Given that it was common ground that the appellant bore the legal onus of establishing that his prolapsed disc was caused or materially contributed to by the respondent's wrongful conduct, it was open to her Honour to find against the appellant on that issue unless the expert medical evidence tendered was sufficiently clear and unambiguous as to warrant a finding in the appellant's favour on the balance of probabilities. 71 In my opinion, it was open to the primary judge to reject the opinions of the medical experts upon which the appellant relied to support a finding that his prolapsed disc was caused by the injuries sustained in the accident. Having legitimately found that the prolapsed disc was triggered by the hammer incident, it follows that any expert medical opinion proceeding upon any other basis was open to rejection as being unreliable. 72 It is true, as the appellant submitted, that he sustained a whiplash-type injury when he ran into the respondent's vehicle at approximately 100 km per hour. Even though he was restrained by a seatbelt (which probably saved his life), he must nonetheless have suffered some trauma. However, that fact alone is not, in my opinion, sufficient to justify a finding that the trauma sustained in the accident, as a matter of probability, caused or materially contributed to the prolapsed disc or otherwise made his cervical spine at the location in question more vulnerable to such a condition than it had been previously. Such a finding could not been made unless it gained some material support from an appropriately qualified medical expert. Her Honour found that there was no such acceptable medical evidence and, in my opinion, no error has been demonstrated in that finding such as would justify appellate intervention by this Court. 73 Accordingly, in my view there is nothing to warrant this Court disturbing the primary judge's findings on the issue of causation: see Jones v Bradley [2003] NSWCA 81 at [113]-[116]. As was pointed out in that case by Santow JA (with whom Meagher and Beazley JJA agreed), this Court will not interfere with primary factual findings if those findings were reasonably open on the evidence. An appellant is required to demonstrate more than that there were alternative findings available (which this Court may or may not prefer): it must be positively demonstrated that the primary judge was wrong in making the findings in question. 74 In my opinion, that task, although essayed by the appellant, has not been achieved. It follows from the foregoing that the fact that the primary judge regarded the hammer incident as a novus actus interveniens is irrelevant. The finding by her Honour that the accident itself did not cause the appellant's C6/7 disc to prolapse involved no such consideration. However, the appellant relied upon the following passage from the judgment of Mason CJ in March v E & M H Stramare Pty Limited (1991) 171 CLR 506 at 518: "As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or third party and that injury occurs in the ordinary course of things. With such a situation, the defendant's negligence satisfies the 'but for' test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it." This passage was cited with approval by Beazley JA (with whom Handley and Sheller JJA agreed) in McGroder v Maguire (2002) NSWCA 261 at [11]. 75 In my opinion, the primary judge properly addressed herself to the issue so posed, namely, whether the respondent's wrongful conduct did in fact generate the "very risk" of the appellant's C6/7 disc protruding as a result of some further trauma such as the hammer incident. In other words, her Honour addressed the issue as to whether the respondent's negligence generated or created vulnerability in the appellant's cervical spine that did not previously exist. However, her Honour answered this question in the negative. Given the pre-accident degenerative disease from which the appellant suffered in terms of his cervical spine (as found by Dr Mellick and accepted by her Honour), the question was whether the accident created a greater vulnerability to further injury to the disc than already existing prior to the accident. The problem the appellant faced before this Court was that the primary judge was not prepared to find that there was any acceptable medical evidence to support the finding that the injuries sustained in the accident created a vulnerability which was triggered in the hammer incident two weeks later. For the reasons already given, no error has been demonstrated to justify this Court overturning that finding. 76 Her Honour recognised the passage from March referred to above in the following passage: "There can be no novus actus interveniens when the defendant's wrongful conduct (in this case admitted) has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. It is settled law that it is not possible to establish a novus actus interveniens unless it can be shown that the earlier breach had no causative effect, even of the " but for " kind. The onus is on the wrongdoer to show that the injury would have occurred, or the same risk of it, even if the relevant duty of care had been performed. Consequently, the onus lies upon the defendant to prove that the relevant damage (to Mr Brazel's neck and the consequential surgery and restriction) was caused not by the defendant's negligence but by a novus actus interveniens, in this case the hammer incident. That onus has been discharged here. I find that the hammer incident was unrelated to the motor vehicle accident with injuries sustained in that accident, and the hammering incident triggered the pre-existing degenerative disease." 77 The primary judge was well aware of the parties' respective burdens of proof. She cited extensively from the judgment of Dixon CJ in Watts v Rake (1960) 108 CLR 158 at 159-160 and from the joint judgment of Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden (1964) 114 CLR 164 at 168-169. See also Shorey v P T Limited (2003) 77 ALJR 1104 at [46]-[49] per Kirby J; Winston v Roach [2003] NSWCA 310 at [69] per Mason P (with whom Santow JA agreed). 78 The foregoing principle (to the effect that a negligent defendant must take its victim as it finds her and must pay damages accordingly) is predicated upon an initial finding that the defendant's wrongful conduct is a cause of the particular injury of which the plaintiff complains. It is then for the defendant to discharge the evidentiary burden of disentangling other possible causative factors in order to exclude the operation of the accident as a contributing cause to the injury. Accordingly, the onus of disproving a causative relation only arises once a positive finding has been made that the event in question was a contributing cause. In the present case it was not necessary for the respondent to disentangle other possible causes of the appellant's disc prolapse as the primary judge declined to make the finding that the accident was a cause of the injury. 79 Although the primary argument of the appellant relates to the issue of causation dealt with above, a number of subsidiary complaints were made with respect to the primary judge's decision. These were not elaborated upon in oral argument but I shall deal with them briefly. The first related to the psychological or psychiatric component of the appellant's asserted injuries. The appellant's claim was based on a psychiatric report of Dr Michael Robertson, which her Honour found was: "greatly undermined by the errors in the history on which it is premised. I have not accepted Dr Robertson's opinion given the flaws in the basis on which Dr Robertson was set upon his task". 80 There was no doubt that the appellant had a significant psychological or psychiatric history prior to the accident. Her Honour held that there were no acceptable specialist diagnoses of any clinically recognised psychological or psychiatric condition from which the appellant suffered. She concluded: "Whatever Mr Brazel's psychological condition be, it is a long-standing one, and Mr Brazel has been as resistant to treatment for his psychological condition as he has been to physiotherapy and surgery (by Dr Pell)." 81 Her Honour accepted the opinion of the respondent's clinical psychologist, Dr Wendy Roberts. Dr Roberts was of the opinion that the appellant did not meet the criteria for any clinically diagnosable emotional disorder; nor was there any evidence of any organically based cognitive impairment. As I have said, her Honour rejected the views of the appellant's experts in this field as they were based upon what she referred to as "an unreliable and inaccurate history". 82 There is no doubt that Dr Robertson's opinions in his report of 30 April 2002 were based to a large degree upon the history given to him by the appellant. In particular, the appellant informed Dr Robertson that the pain from which he was suffering precluded most household tasks, including mowing lawns and general wholesale maintenance, and that he had become essentially inactive in the house dependant upon his wife for the performance of those tasks. He also described dreams regarding the accident, asserting that he suffered from feelings of intense distress and physiological hyper-arousal when exposed to cues reminiscent of his previous work or the accident. Dr Robertson's opinion was that the appellant was suffering from pain disorder with psychological factors as well as a major depressive disorder. He based these findings upon his "clinical assessment and the available information as well as the provided collateral history". He opined that the appellant's pain disorder related to the injuries he sustained in the accident. 83 It is apparent that, contrary to the written submission of the appellant, her Honour did not simply reject Dr Roberton's opinions because he recited what he referred to as the "balance of orthopaedic opinion" that as a consequence of the accident the appellant had suffered a C6/7 intervertebral disc protrusion. It is apparent that Dr Robertson's psychological opinion was also based upon his assumption that the "pain disorder" from which the appellant was suffering related to the injuries he sustained in the accident. Given the findings of the primary judge with respect to the accuracy of that history and her findings as to the extent of the appellant's pain and suffering (and, in particular, her rejection of the appellant's evidence as to the pain from which he allegedly continued to suffer after the January 2000 surgery performed by Dr Pell), it was clearly open to her Honour to reject Dr Robertson's opinion on the ground that it was based upon invalid premises. Accordingly, I would reject the appellant's complaint that her Honour's rejection of Dr Robertson's opinion demonstrated error or was otherwise attended by insufficient reasoning. 84 Although the appellant did not purport to challenge directly the primary judge's findings on credit, he submitted that her Honour, on the question of credit, should have given some weight to a number of factors which it is unnecessary to record. With respect, the precise basis and purport of this submission is unclear. In all probability (and as I have said, these written submissions were not the subject of further oral elaboration) what the appellant was seeking to do was to bolster the "contemporaneous documentary evidence" of the medical experts upon which he relied in support of the conclusion which he advanced on the issue of causation. However, for the reasons already adverted to, it was open to her Honour to find that the documentary evidence did not support the appellant's case. 85 It was next submitted that her Honour's finding that the appellant did not sustain significant injuries to his neck in the accident was not attended by sufficient reasons demonstrating "any logical reasoning process" behind the findings on the issue of causation. In my opinion, there is no substance in this complaint. 86 Finally, it was submitted that even if the primary judge was correct in finding that the appellant's prolapsed disc was not related to the accident, her finding that the injuries that the appellant did in fact sustain warranted only an allowance of 7% of a most extreme case for non-economic loss was manifestly inadequate. 87 This submission seeks to contest her Honour's finding that the appellant did not meet the threshold of 15% of a most extreme case required by s 79A(4) of the Act. However, as I have already observed in [29] above, her Honour had also found that the appellant did not meet the threshold required by s 79A(3). Unless that threshold was reached, any finding with respect to the threshold referred to in s 79A(4) was academic. When pressed with this distinction and asked whether there was any challenge to her Honour's findings with respect to the threshold referred to in s 79(A)(3), the appellant declined to make any such submission. In these circumstances, the appellant's complaint about her Honour's findings with respect to quantum should be rejected. Conclusion 88 In my opinion, the appellant has not demonstrated that the relevant findings of the primary judge were not reasonably open to her or that she was in error in coming to them. In these circumstances, the appeal should be dismissed with costs. 89 PALMER J: I agree with Tobias JA. ********** Last Modified: 03/19/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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