Court of Appeal Supreme Court New South Wales Medium Neutral Citation: El-Mohamad v Celenk [2017] NSWCA 242 Hearing dates: 14 September 2017 Decision date: 22 September 2017 Before: McColl JA at [1]; Basten JA at [2]; N Adams J at [77] Decision: (1) Dismiss the appeal from the judgment of the District Court dated 26 April 2016. (2) Order that the appellant pay the respondent's costs in this Court. Catchwords: EVIDENCE – assessment of damages – certificate of whole person impairment – relevance to assessment of economic loss PERSONAL INJURY – motor vehicle accident – Motor Accidents Compensation Act 1999 (NSW), s 83 – whether insurer had admitted causation of injury – payment of claimant's treatment expenses – admission of liability – whether given appropriate weight – later denial of liability PERSONAL INJURY – motor vehicle accident – damages claimed for injuries sustained as a result of second of two accidents – whether claimant established further injuries in second accident –credibility of claimant's evidence – whether reasons adequate Legislation Cited: Civil Liability Act 2002 (NSW), Pt 3 Motor Accidents Compensation Act 1999 (NSW), ss 61, 72, 80, 81, 83, 131 Cases Cited: Brown v Lewis (2006) 65 NSWLR 587; [2006] NSWCA 87 Heuston v Yore Contractors Pty Ltd (unrep, 9 March 1992, Hunt CJ at CL). Lustre Hosiery Ltd v York (1935) 54 CLR 134; [1935] HCA 71 Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 Pham v Shui [2006] NSWCA 373; 47 MVR 231 Smalley v Motor Accident Authority of New South Wales (2013) 85 NSWLR 580; [2013] NSWCA 318 Tchen v Nominal Defendant [2010] NSWCA 245 Category: Principal judgment Parties: Abir El-Mohamad (Appellant) Aydan Celenk (Respondent) Representation: Counsel: Mr D Hooke SC/Mr L D Robison (Appellant) Mr L King SC/Mr J J Ryan (Respondent) Solicitors: Sanford Legal (Appellant) McInnes Wilson Lawyers (Respondent) File Number(s): 2016/151211 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: [2016] NSWDC 335 Date of Decision: 26 April 2016 Before: P T Taylor SC DCJ File Number(s): 2013/62800 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. McCOLL JA: I agree with Basten JA. 2. BASTEN JA: On 23 August 2010 the appellant, Ms Abir El-Mohamad, was involved in a motor vehicle accident. She made a claim in damages against the driver of the car which ran into her from the rear, Ms Aydan Celenk. Her statement of claim alleged that she had suffered injury to her (i) cervical spine, (ii) lumbar spine and (iii) stomach, together with (iv) psychological and psychiatric injuries. The claim listed 19 separate continuing disabilities. A schedule of damages provided at trial claimed an amount in excess of $900,000. 3. On 16 May 2009, the appellant had been involved in an earlier car accident, again involving another vehicle colliding with her car. Although she brought proceedings in relation to that accident, those proceedings were dismissed by consent on 2 November 2012. On 23 February 2013 she commenced proceedings in the District Court in relation to the present matter. 4. The defendant in these proceedings admitted breach of duty but disputed that the plaintiff had suffered any injury, loss or damage as a result of the collision. (The odd form of the pleadings derived in part from the fact that the plaintiff did not plead a duty of care, nor, expressly, a breach of duty, but only a collision.) 5. The matter came before Judge P Taylor SC on 9 March 2016. The judge inquired at the outset whether "[t]he question is what is the damage caused by this collision?" [1] Counsel for the plaintiff agreed that it was and the matter proceeded on that basis. 6. Although the statement of claim alleged psychiatric injury, there was no claim for pure mental harm, absent physical injury. (Had there been, it would have been necessary for the plaintiff to satisfy the requirements of Part 3 of the Civil Liability Act 2002 (NSW), which was not addressed.) The issue, correctly identified by the trial judge, was whether the plaintiff had suffered physical injury as a result of the accident. He was not satisfied that she had and therefore dismissed the proceedings. [2] 7. The plaintiff appealed, purportedly as of right, to this Court. It was assumed that the appeal involved a claim of the value of $100,000 or more. The schedule of damages was relied upon to support that proposition. Without reference to supporting evidence, that was not so, but the respondent took no point about the need for leave and it may be assumed that the appeal was properly brought as of right. Grounds of appeal 1. The appellant was given leave at the hearing of the appeal to file a proposed amended notice of appeal; the submissions of both parties addressed the grounds as contained in that document. 2. Eight grounds were relied upon. (The grounds were numbered 1-11, but three were abandoned.) Ground 3, alleging a failure to apportion the cause of damage as between the subject accident and the previous accident and ground 11, alleging a failure to disentangle the elements of injury, assumed that an additional injury had been caused in the second accident. Those grounds were consequential on demonstration of error in respect of the judge's conclusion that the plaintiff had not established that further injury was suffered in the second accident. 3. Ground 8 merely alleged that the judge erred in giving judgment for the defendant, which did not constitute a separate ground. Grounds 1 and 2 alleged that the judge had erred "in finding that the plaintiff did not suffer injury" and that "the plaintiff suffered relevant injuries solely as a result of a prior motor vehicle accident". Neither of those propositions was accurately stated; the judge's finding was a negative one, namely that the plaintiff had not established that she did suffer injury in the second accident. In any event the grounds did not identify any particular error. The judge accepted that the plaintiff had suffered injuries in the earlier accident, a matter which was not in doubt. 4. There remained three further grounds. Two involved specific errors and read as follows: "5. His Honour erred in failing to treat payments made by the defendant (and/or its insurer) pursuant to s 83, Motor Accidents Compensation Act 1999 as constituting an admission of damage having been caused by the subject accident. … 10. His Honour erred in his treatment of the appellant's 'whole person impairment'." These grounds will be addressed shortly. 1. The final ground (ground 9) alleged a failure to give adequate reasons. It was this ground, together with reference to aspects of the evidence which the judge did not address, which constituted the gravamen of the challenge at the hearing. The written submissions stated that it was not open to the trial judge to fail to be satisfied that the plaintiff had suffered damage in the second accident, based on the available medical evidence. It was that approach which was further developed in the oral hearing, and which was answered by the respondent without any complaint as to the lack of particularity in the notice of appeal. It is convenient to outline first the reasoning of the trial judge. Reasoning of trial judge (a) how the collision occurred 1. There was conflicting evidence as to how the collision occurred. There was no doubt that the plaintiff's car was stationary and was hit from behind by the defendant's car. The defendant gave evidence that she came around a corner and stopped approximately a half car length behind the plaintiff. She denied that the plaintiff's car was at traffic lights, and said that the traffic was edging forward and stopping. The trial judge summarised the evidence as follows: [3] "On one of those occasions, Ms Celenk was about half a car length behind Ms El-Mohamad's vehicle. Her car moved forward but as Ms El-Mohamad's car had stopped, her car hit Ms El-Mohamad's car. Ms Celenk put her car into park, got out of her car and said to Ms El-Mohamad, 'I'm sorry I hit your car.' 'Are you okay?' Ms El-Mohamad responded, 'Yes.' They both inspected the cars and found there was no significant damage, some minor scratches." 1. The judge then noted the plaintiff's evidence that the defendant's car "hit me at speed" and "hit her at 'full speed'." [4] The plaintiff stated that there was "real panel damage" to her vehicle. That evidence was contradicted by the defendant who said, as the judge noted, that they inspected their vehicles and there were only minor scratches. The defendant's evidence was supported by photographs of the front of her vehicle; her account also received support from the fact that when the plaintiff later made a claim in respect of the accident, she left blank the sections requesting details of damage to the vehicles. 2. The judge noted a concession in submissions by counsel for the plaintiff "that the evidence as a whole supported the conclusion of a very minor accident." [5] The judge accepted that concession. [6] On the basis of the defendant's testimony, the photographs of the vehicle, the absence of documentary material to the contrary and concessions made by the plaintiff, he concluded on the balance of probabilities that "the collision was a very minor, low-speed collision with no significant damage to either vehicle." [7] 3. On the appeal, counsel for the plaintiff took issue with that finding on the basis that it was immaterial and did not affect the claim for personal injury made by the plaintiff. That submission cannot be accepted in its terms. No doubt the finding with respect to the nature of the collision was not determinative of the extent of any personal injury suffered by the plaintiff, but it was undoubtedly a factor to be taken into account. In short, the greater the force of the impact, the greater the likelihood that the plaintiff suffered bodily injury. (b) effects of 2009 accident 1. The judge considered the evidence of the plaintiff as to her condition between the time of the earlier accident (May 2009) and the period just prior to the second accident in August 2010. The plaintiff had some difficulty recollecting her state of health in the year between the two accidents, but her contemporaneous concerns were recorded in the notes of numerous visits to her general practitioner, Dr Guirguis, and a number of specialists. On 19 June 2010 she saw a consultant occupational therapist, Ms Lucinda Smith, who prepared a detailed report for her solicitors in relation to the accident in May 2009. She was cross-examined in relation to symptoms described to medical practitioners and to Ms Smith. After referring to key aspects of the cross-examination on this material, the judge noted the defendant's submission that "the reports Dr Bodel, Ms Smith (both of whom were retained by Ms El‑Mohamad) and Dr Dowda and Dr Bodel's oral evidence all indicated that Ms El-Mohamad suffered or complained of suffering before the 2010 accident from all of the symptoms and disabilities of which she now complains, complained that she did not improve after the 2009 accident, that she was in constant and severe pain and that she had difficulty with domestic tasks." [8] 2. The judge also noted the plaintiff's acceptance in submissions "that there was no contemporaneous documentary material indicating improvement in her condition prior to the 2010 accident." [9] (c) effects of 2010 accident 1. The plaintiff gave evidence of the pain intensifying after the 2010 accident, resulting in her "medical retirement" in February 2014. [10] The judge summarised some of the foregoing discussion in the following passage: [11] "Ms El-Mohamad submitted that her pain levels and difficulties with domestic tasks have worsened since the 2010 accident but this deterioration is difficult to identify in the material. Ms Smith's report, based on Ms El‑Mohamad's instructions, indicates that her difficulties with domestic tasks were at least as great before the 2010 accident as now, perhaps even worse as she no longer receives any help with toileting. Ms El-Mohamad relied on the change in Dr Bodel's report after the 2010 accident from dull, aching pain to sharp pain. Dr Bodel has not emphasised this as a change in her condition and he accepted that he was largely reliant on the history provided by Ms El-Mohamad." 1. The judge also referred to evidence of other members of the family in relation to the assistance which had been provided to the plaintiff. He noted that her mother had given evidence that her condition was "much improved prior to the 2010 accident." [12] The judge rejected that on the basis that it was "not supported by the 2010 reports or accounts given by Ms El-Mohamad recorded in those reports." That caused a difficulty for the plaintiff. As the judge noted, either her mother's recollection was faulty or the plaintiff's own accounts were untrue. Nothing was made of the evidence of other members of the family on the appeal. (d) credibility of plaintiff 1. The trial judge rejected a submission that "[t]his was not a case where credit ought to loom large," [13] stating: "I do not accept this. Whether Ms El-Mohamad has suffered disabilities and whether they resulted from the second accident was significantly affected by her oral evidence. In neither evidence nor submissions did Ms El-Mohamad provide any satisfactory explanation for the report of Ms Smith of Ms El‑Mohamad's extensive disabilities and need for care in the two months prior to the second accident." 1. The trial judge then identified two further problems with the plaintiff's credit. One related to questions asked about trips away from Sydney since the 2010 accident. In a series of answers, she made no reference to a trip she had taken to Lebanon for a period of three months, in the course of which she saw her father. The judge noted: [14] "No satisfactory explanation was given as to why she did not refer to that trip, nor was any explanation given about how she managed, whether she had family assistance or companionship on the journey, or how she faced the challenge of sitting for long periods of time on a plane." 1. The judge then identified the difficulties that that evidence caused for the plaintiff: [15] "The only explanation I can perceive consistent with honesty, in Ms El‑Mohamad not referring to this trip in her evidence before it being directly put to her that she had travelled to Lebanon, is that her memory is so poor that she could not recall it. However, such a poor memory makes it difficult to rely on her evidence about her disabilities and the dates (whether by reference to the motor vehicle accidents or otherwise) when they were present." 1. The second matter identified by the trial judge was a lengthy surveillance video showing the plaintiff shopping in Flemington Market and engaging in other activities, recorded in April 2013. As the judge noted, "her activities were undertaken in an entirely normal and ordinary fashion, manifesting no pain, difficulty, tiredness, guardedness or stiffness." [16] Accepting the limitations of a video in depicting absence of disability, the judge noted that it nevertheless "displayed movements and activities which were quite inconsistent with both the movement of Ms El-Mohamad to and from the witness box and her descriptions of her pain and difficulties in the witness box and in the histories given by her to medical persons." [17] (e) medical assessment 1. The Motor Accidents Compensation Act 1999 (NSW) establishes a Medical Assessment Service (MAS) which is authorised to resolve disputes, amongst other matters, as to the degree of permanent impairment caused by a motor accident. A finding of more than 10% whole person impairment is a precondition to the recovery of non-economic loss. [18] There were two certificates provided by the (MAS) in relation to the plaintiff. The second, dated 31 July 2015, dealing with the cervical and lumbosacral spine, found that the degree of permanent impairment was not greater than 10%. The assessment, prepared by Dr Alan Home, described the current severity of symptoms in the cervical spine (neck pain) as "identical to that documented two months prior to the current accident." With respect to the lumbosacral spine, a whole person impairment of 5% was assessed, which was found to be entirely the result of pre-existing causes. 2. It is convenient to set out the brief statement in the judgment relating to the "whole person impairment" assessment, which was in evidence, as it was challenged on the appeal. In full, it read as follows: [19] "I also take into account the Medical Assessment Service ('MAS') assessment of 0% whole person impairment, which precludes Ms El-Mohamad claiming non-economic loss damages. I note that some of the reports, including those of Dr Harvey-Sutton, Dr Machart and Prof Ehrlich, conclude that Ms El-Mohamad's disabilities cannot be attributed to physical injury in 2010." (f) reasoning 1. At the commencement of the reasons the judge said: [20] "In all the circumstances, I am not satisfied that Ms El‑Mohamad's disabilities were of anything like the magnitude she maintained in the witness box and to the medical experts who prepared reports." 1. The trial judge then discussed what he considered to be possibly the "high point" of the plaintiff's case. The plaintiff had had MRI scans of her lumbosacral spine five months after the first accident (on 16 October 2009) and three months after the second accident (on 12 November 2010). The earlier MRI showed "disc bulges at L4/L5 and L5/S1 levels." The November 2010 MRI showed "L5/S1 disc dehydration and [a] small tear but no obvious nerve root or cauda equina compression." [21] The "tear" was referred to by her general practitioner, Dr Guirguis, by Dr Darwish, her treating neurosurgeon and spinal surgeon and by Dr Bodel, an orthopaedic surgeon whom she had consulted both in June 2010 and in November 2011. Dr Bodel was called at the trial. 2. In addition, the judge discussed the evidence of a psychiatrist, Dr Bertucen, who had assessed the plaintiff in June 2010 and again in November 2011. 3. Some little time was spent in submissions on the appeal considering the medical evidence and it will be convenient to deal with the judge's assessment of this evidence below. (g) employment history 1. The judge noted the reliance placed on the employment history: [22] "Ms El-Mohamad submitted that as she was medically retired after the second accident, she must have suffered damages from it. This submission confuses coincidence in timing with causation. The question remains whether the medical retirement was caused by the second accident." 1. The judge continued: [23] "Ms El-Mohamad's employment details were sketchy after the 2009 accident. Her chronology in the proceedings mentions the accident but does not mention the periods of time off work that she took. She gave evidence that after the accident on 16 May 2009, she had a few months off work. The records indicate that, apparently in addition, she was certified by Dr Guirguis as unfit for duties from 16 September to 16 December 2009 and as unfit to walk more than 50 metres from 5 February 2010 to 5 May 2010 and from 26 May 2010 to 26 August 2010, a few days after the second accident." 1. The judge concluded that he was "not satisfied that the work performance of Ms El‑Mohamad was so different after the 2010 accident as to constitute evidence indicating further aggravation or damage." [24] (h) spinal injection 1. There was no evidence that the plaintiff had made any concerted attempt to comply with the recommended active therapies which might have assisted with her condition. However, Dr Darwish had suggested a possible intrusive treatment, namely a "left S1 … epidural block". The recommendation preceded the 2010 accident, but was not implemented until after the accident. [25] Dr Darwish had also stated that "her last option is to have L5/S1 laminectomy, discectomy and fusion." [26] The judge concluded that these recommendations constituted "strong evidence that the patient has a real problem and is seeking relief." [27] The judge also accepted that the medical evidence supported the existence of "lower back pain not readily manifest in the video". He was not satisfied, however, that the pain was aggravated by the accident in August 2010. [28] (i) payment of treatment expenses 1. The trial judge noted that the defendant's insurer had paid $894 in treatment expenses between the accident in August 2010 and the plaintiff's trip to Lebanon in about February or March 2011. [29] The judge accepted that the payment was made pursuant to s 83 of the Motor Accidents Compensation Act and that "[t]his constitutes an admission of liability." He noted that the admission appeared to have been withdrawn in the defence and concluded: [30] "I do not think the payment operates in any substantial way to establish the liability of the defendant." (j) conclusions 1. The judge's conclusions were expressed in the following terms: [31] "In all the circumstances, I am not satisfied of factual causation referred to in s 5D of the Civil Liability Act 2002. That is, I am not satisfied that any disability or pain resulted from the minor collision that occurred on the morning of 23 August 2010 in the sense that Ms El‑Mohamad suffered any subsequent pain or disability that would not otherwise have occurred. In those circumstances, there shall be judgment for the defendant." Issues on appeal 1. It is convenient to deal first with two specific pleaded grounds, before turning to the substantial challenge to the reasoning of the trial judge. (a) medical assessment 1. In the passage from the judge's reasons set out above at [26], it is clear that he took the MAS assessment into account in the context of three other medical reports concluding that the plaintiff's disabilities (which were not denied) could not be attributed to the 2010 accident. The submission on appeal was that the report was entirely irrelevant to the exercise being undertaken, there being no claim for non-economic loss. However, it had apparently been tendered without objection at the trial and was referred to by counsel for the plaintiff in opening the case. The following exchange took place: [32] "HIS HONOUR: They've concluded that she's not above 10 per cent whole person impairment and that is of no relevance; is that what it is, in terms of other aspects of the claim? ROBISON: I don't put it as highly as that, your Honour. The Court can take it into account for other purposes but it's only binding for the purpose of entitlement or otherwise to general damages." 1. It may be seen from this passage that it was the trial judge who thought the document might have no relevance; it was counsel for the plaintiff who conceded that the Court was entitled to have regard to it for purposes other than establishing disentitlement to general damages. In the light of (i) the document having been admitted without limitation as to its purpose, and (ii) counsel having conceded it could be used in the way in which the judge did use it, this ground of appeal is untenable and must be rejected. 2. Quite apart from these considerations, the appellant's reliance on authority in support of this ground was without substance. The high point was that in Pham v Shui, [33] which rejected a submission that a certificate under the Motor Accidents Compensation Act was conclusive otherwise than with respect to the threshold for non-economic loss, as provided in s 61(2). Santow JA referred to observations of Mason P in Brown v Lewis [34] that "extreme caution" is required in relying upon the content of a certificate in relation to damages for economic loss. [35] In Motor Accidents Authority of NSW v Mills, [36] Giles JA stated that Santow JA "did not exclude the relevance of a non-conclusive certificate to assessing economic loss but 'extreme caution' was required as to likely relevance." He noted that the issue did not arise in Mills. [37] As appears from the next authority, the manner in which various kinds of admissible evidence are to be treated will depend on the circumstances of the case. 3. Reliance was also placed on Tchen v Nominal Defendant, [38] where Pham v Shui was referred to in dealing with the extent of the conclusivity of a certificate under s 61(2) of the Motor Accidents Compensation Act. [39] In that case, the primary judge had relied upon the reasons given in an assessment certificate as to a matter which was not the subject of the conclusive effect of the certificate. Sackville AJA explained in some little detail why the primary judge had been in error and had "overstated the materiality and cogency" of the report. No reference was made to the broad proposition that such reports should be approached with "extreme caution" in relation to economic loss; rather there was a careful analysis of why the reliance placed on the report by the trial judge had, in the circumstances of the particular case and the particular report, been an error. 4. The generic statement sought to be derived by the appellant that "although MAS reports are admissible, they should be given minimal weight because their authors cannot be cross-examined" is not a statement of legal principle, but merely recognises a particular factor which may be in play. Indeed, in a jurisdiction where (as in this case) medical reports are frequently relied upon despite the author not being called for cross-examination, that particular point might be thought to have little weight; it is certainly not a general principle. (b) payment of treatment expenses 1. The notice of appeal complained that the judge erred in failing to treat the payments made by the defendant pursuant to s 83 of the Act as constituting "an admission of damage having been caused by the subject accident." However, in the passage in which this issue was addressed, set out at [35] above, that is precisely how the judge referred to the payment. Accordingly, the premise underlying the ground of appeal is false. 2. It appeared in the course of oral submissions that the ground was pursued on the basis that the admission was not given appropriate weight. It may be accepted that the judge did not give it substantial weight: he said that. What is not clear is why it should have been given more weight than it was given. An admission as to liability is an expression of the belief of a party based on its state of knowledge, in this case the knowledge of the insurer. Where an admission is withdrawn, its effect must be assessed by reference to the state of knowledge of the party making the admission at the time it was made. The principle was established in Lustre Hosiery Ltd v York: [40] "No doubt an admission made by a party as to the correctness of a fact is admissible in evidence notwithstanding that the party has no direct knowledge of the fact and must rely for his belief upon the statements of others, or upon inferences from circumstances which he knows, or which have been reported to him. … It is apparent that the admissibility of the evidence must be distinguished from its sufficiency to establish or support an affirmative conclusion in favour of the party who tenders it, when the burden of proof lies upon that party. It does not follow that, because such evidence is admissible, it is enough to prove the issue." 1. The joint reasons in Lustre Hosiery continued: [41] "When admitted in evidence, however, its probative force must be determined by reference to the circumstances in which it is made and may depend altogether upon the party's source of knowledge. If it appears that he had no knowledge, or that, although he had some means of knowledge, he had formed no certain or considered belief and indicated nothing amounting to a personal judgment or conclusion of his own, the probative force of the admission may be so small that a jury ought not to be allowed to act upon it alone, or in preference to opposing evidence." 1. The plaintiff referred to a judgment of Hunt CJ at CL ruling on the admissibility of payments of compensation as admissions of liability in a jury trial. [42] The Chief Judge expressly applied the principle in Lustre Hosiery last set out above. As admissibility was not in issue in the present case, that authority took the matter no further. 2. The statutory context is important in assessing the weight to be given to an admission by making minor payments. The Motor Accidents Compensation Act puts the parties on a tight rein in relation to procedural steps. [43] Thus, pursuant to s 72, an injured party is required to make a claim within six months after the date of the accident. The claim must be made to the third party insurer. The insurer is obliged to resolve the claim "as justly and expeditiously as possible." [44] Further, it is "the duty of an insurer to give written notice to the claimant as expeditiously as possible whether the insurer admits or denies liability for the claim, but in any event within 3 months after the claimant gave notice of the claim under section 72." [45] Once the claim is admitted, the insurer is obliged to make payments of medical and pharmaceutical expenses, pursuant to s 83. 3. The claim lodged in respect of the accident in August 2010 was dated 10 December 2010. All of the payments constituting the $894 were with respect to consultations with the plaintiff's general practitioner between 23 August 2010 and 23 February 2011. There was no copy of any written notice admitting liability in part or in whole, in accordance with s 81. 4. The claim form submitted by the plaintiff included reference to the 2009 accident, noting similar injuries. It may be inferred that any admission of liability in these circumstances would be contingent upon the insurer having an opportunity to assess the medical evidence as to which injuries might be attributed to which accident. Furthermore, in addition to the disclosure in the claim form that there had been a prior accident, further relevant disclosures were that (i) the plaintiff did not need an ambulance after the accident; (ii) the plaintiff did not go to hospital after the accident; (iii) the only treatment provided was that of her general practitioner and a physiotherapist, and (iv) no detail of any damage to either vehicle was identified. 5. It is not reasonable to attribute substantial weight to the willingness of an insurer, in accordance with its statutory duties, to accept liability and pay small amounts by way of treatment expenses, in the absence of any information which might indicate that serious injuries were caused, so as to be bound by an admission of liability when a claim was made in an amount approaching $1 million. In all of these circumstances, the refusal of the trial judge to accord substantial weight to the admission inferred from the payment of minor medical expenses was unassailable. The ground of appeal must be rejected. (c) comparison of medical reports 1. Accepting, realistically, that no challenge could be mounted to the careful assessment by the trial judge of the plaintiff's credibility and reliability, the principal challenge on the appeal focused on the medical history. 2. The submissions commenced by reference to a report by psychiatrist, Dr Bertucen, which recorded the plaintiff's condition two months before the second accident. It set out her account of her current physical symptoms in the following terms: [46] "Current physical symptoms are described as lower back pain radiating to the back of thighs, calves and feet bilaterally, neck stiffness and headaches which are described as 'constant'. She also reports occasional paraesthesia/ numbness of her arms and legs." Dr Bertucen diagnosed a "chronic adjustment disorder with depressed mood and features of anxiety (mostly situational while driving)." 1. Dr Bertucen saw the plaintiff again in November 2011, that is 15 months after the second accident. He referred to her "worsened" pain and physical disability, although as a psychiatrist, that should be understood as merely a record of her reporting. The same may be said of his statement that the plaintiff was "incapable of any kind of regular gainful employment owing largely to her physical incapacity." He asserted that her psychological condition should be apportioned as to 40% to the first accident and 60% to the second. That opinion as to causal connection depended almost entirely on the plaintiff's account of her condition and the effect of the two incidents and his understanding that the second accident "caused demonstrable physical pathology in the lumbar spine". [47] 2. Counsel then took the Court to the opinions of Drs Bodel, Dowda and Machart. 3. Dr Bodel had MRI scans of October 2009 and November 2010. With respect to the 2009 scan, he commented that "[t]here is some minor bulging and dehydration at C5/6 and also similarly at L5/S1." With respect to the November 2010 scan he noted that "[t]here is some central bulging at the L5/S1 level but no definite nerve root compromise." The report appeared to be an assessment of whole person impairment under the Motor Accident Authority Guidelines and accorded with the certificate in fact given. Thus, Dr Bodel assessed a 5% whole person impairment two months prior to the motor vehicle accident in 2010 with a similar degree of impairment after the accident, resulting in a 0% whole person impairment for the August 2010 accident. 4. In his assessment undertaken on 7 November 2011, the accident was described, in accordance with the plaintiff's account, in the following terms: [48] "She states that this was during the course of her day's work and she was at that time on her way to an appointment to do with work-related hearing problems. Light rain was falling. The accident occurred when she was stationary in a line of traffic. She was struck from behind by another vehicle and pushed forward but did not strike the vehicle in front. Her vehicle was drivable and subsequently repaired at a cost unknown to her. An ambulance attended. She did not go to hospital. She went on to her appointment and reported the incident to her manager. She tried to return to work but was struggling. She states that she had 'excruciating pain all over.'" 1. In a further report dated 13 January 2015, Dr Bodel recorded that the plaintiff reported no change in her clinical circumstances over the intervening three years. Dr Bodel stated: [49] "This lady has been previously quite well as I have indicated before. She has had no prior accidents before the injury in May 2009. She also reports to me that that matter, from the motor accident point of view, has been settled as I understand it. She reports that although she did go back to work, she was never pain free. She has been medically retired from the ATO." Dr Bodel further stated: [50] "The injuries are a soft tissue injury to the neck and back, instigated in the first injury in May of 2009 and further aggravated by the second injury in August of 2010. This lady's ongoing pathology clearly relates to both accidents." 1. Dr Bodel gave oral evidence. In the course of cross-examination he was asked to make an assumption, which was not (as he agreed) consistent with his reports, that the August 2010 accident was "a very low speed, low impact event". [51] He was cross-examined about the statement at p 3 of his November 2011 report where he had stated: "This lady has suffered a further soft tissue aggravation of the previous injury to the neck and the back as a consequence of this second motor vehicle accident. There is no clinical change however in her examination findings at the time of this subsequent assessment." 1. It was suggested to him that the conclusion was based "entirely on the history that you were given by her", to which he replied: [52] "It's based on the history given, my examination of the patient and the perusal of whatever documentation was provided at the time, including the X-rays." 1. With respect to the reports of the MRI scans, Dr Bodel accepted that the changes to the lumbar spine shown in the October 2009 report were "consistent with degenerative change" but could also be traumatically induced changes as a result of the 2009 accident. [53] It was suggested that such changes could be expected in many members of the population of her age, to which he responded: [54] "There has been a paper done by Scott Bowden, an orthopaedic surgeon in the United States, in about 1990 when MRI scans were becoming more popular and he did do a study of volunteer members of the armed services … all of those without a history of pain had an MRI scan and 30 per cent of them or thereabout showed degenerative changes or dark disc disease in these young, fit, athletic military people. So it is well recognised that the changes that are seen on MRI scans are present in the asymptomatic population at a relatively young age, yes." 1. Later, this issue was pursued: [55] "Q. Again your reference here to an MRI of 18 March 2012 this had emerged since the time of your second examination. What you describe there is consistent also with degenerative changes, isn't it? A. Yes. Q. Or it's consistent with changes having been caused by the 2009 accident? A. Yes. Q. It's not materially different from the other MRI or the 2009 MRI, is it? A. Not significantly as far as I can recall." 1. It was true that Dr Bodel did not have the MRI scans before him in the witness box, but was being cross-examined on the basis of his report. The following further exchange occurred: [56] "Q. The next paragraph there, the one line paragraph, 'This lady's ongoing pathology clearly relates to both accidents'. … There's no suggestion that the changes you saw on MRIs were caused by the August 2010 accident, is there? A. No, is the short answer but I would like to qualify that …. You are relating by the way of your question that all pathology which is the medical thing that I'm concerned about has to be proven by some sort of objective test of some sort for it to have any relevance. We've already indicated that the changes in the MRI scans may be a degenerative process unrelated to any form of traumatic event and there is clear clinical evidence that a lot of people have significantly awful looking spines, using the spines as the example, and no symptoms, no complaints, no problems and there are other people with minimal changes who have very significant and genuine pathology. So the two are not able to be correlated exactly the way in which you are trying to get me to do it." 1. Dr Dowda was a senior occupational physician with Medibank Health Solutions. He saw the plaintiff on behalf of the Australian Taxation Office, her then employer, in March 2010. He examined her on that occasion and also set out her descriptions as to her inability to walk for greater than 50 metres, use stairs or undertake "physical activities that would impact upon her ability to bear load in the lumbar region or the cervical region." [57] He thought she would benefit from a rehabilitation program. [58] 2. Dr Dowda saw the plaintiff again on 5 August 2010, about two weeks before the second accident. He did not clinically re-examine her and stated that "[s]he presented in much the same way as she did previously." He also noted that "[s]he describes there being no difference in her level of symptomology" since March 2010. [59] Dr Dowda considered that she had "significant pain behaviours and associated avoidance behaviours associated with this pain that has been persisting over the last five months." [60] He described these as "maladaptive behaviours associated with pain" which needed management to avoid them becoming entrenched. It is apparent that the plaintiff was still reporting significant disability resulting from the 2009 accident, although the report was relied upon in argument to contend that she was leading a largely normal life. 3. Finally, counsel took the Court to the report of Dr Machart, an orthopaedic surgeon, who saw the plaintiff on behalf of the insurer, on 10 August 2011. Dr Machart recounted a history of the accident on 23 August 2010 when she was "struck from behind by another vehicle" and felt "in shock". The account continued: [61] "She completed the trip to the hearing assessment. She called the office. Within two hours, she felt 'whole body excruciating pain, torso and legs'. She was apparently taken in a wheelchair to a medical centre. She was assessed and diagnosed as 'muscle spasm' by the GP. She was given valium. Her care was then taken over by her GP, Dr Guirguis. She had a cortisone injection. She was treated by analgesics. Physiotherapy and hydrotherapy were recommended but not commenced yet. She has not worked since the time of injury. She claimed that sitting and stress at work would make her position untenable. She claimed that the severity of her symptoms has not changed and has not improved." 1. Apart from recounting the plaintiff's history, Dr Machart's report provided little assistance to the plaintiff. However, reliance was placed on his statements that she was currently taking a number of medications, a treatment he described as "reasonable", and that the treatment "is related to the injury caused by the MVA [motor vehicle accident]." 2. Although counsel relied upon this conclusion, it is clear that the answers to the specific questions were succinct responses to the preceding matters set out in the report. These included, under the heading "Opinion", the following diagnosis: [62] "I am not convinced that there was an additional structural injury attributable to the incident on 23/08/2010. There are extensive symptoms which do not match the description of injury, lack of initial symptoms. The claimed total disability, inability to work as a case officer, is not in keeping with the evident pathology. I do not have medical information that could account for the claimed disability, or for the extent and the severity of the ongoing symptoms. Ongoing cervical symptoms have not been investigated since the injury on 23/08/2010. It is not clear whether there is additional injury. There is no evidence of a right shoulder injury. The pathology in the lumbar spine is not worse objectively and radiologically since 23/08/2010. Symptoms reported in several areas of the body, subject to the incident on 23/08/2010, are not consistent with the description of injury and immediate activity afterwards." 1. It is then necessary to return to the manner in which the trial judge dealt with the medical evidence. After noting the opinions of both Dr Bodel and Dr Bertucen that the second accident had caused either aggravation or demonstrable pathology, the judge stated: "[43] Neither Dr Bodel nor, it appears, Dr Bertucen viewed the video. Dr Bertucen assessed Ms El-Mohamad in June 2010 as suffering from a chronic adjustment disorder with distressed mood and featuring anxiety, a diagnosis repeated after the second accident, although he thought the condition was 'considerably augmented by the circumstances of the second accident'. [44] Dr Bodel, whose speciality as an orthopaedic surgeon suggests that he is to be preferred on matters of spinal injuries over a psychiatrist or general practitioner, was considerably less certain in oral evidence about his earlier conclusions. Accepting that the tear, indicated by the MRI after the second accident, was 'consistent with degenerative change', his conclusions were 'largely' based on the acceptance of the history provided by Ms El-Mohamad, and accepted that, '[t]here's no suggestion that the changes you saw on MRIs were caused by the August 2010 accident'. This evidence impacts on Dr Bodel's conclusion in June 2010, that Ms El-Mohamad may have been able to work 20 hours a week, compared to his later conclusion that she may be able to undertake light duty work if her pain levels are remedied." 1. The judge also referred to a report of Dr Guirguis dated 7 March 2011 in which he stated: [63] "Ms El Mohamad was stabilised on treatment before the accident on 23/8/10 with physiotherapy and exercise. She actually was working and performing her duties. The accident on 23/8/10 caused her previous injury to increase, flare up and become much worse. She developed a tear in her L5/S1 disc which was not there before in her first MRI on 16/10/09." 1. The judge did not accept the bland statement as to her employment status immediately prior to the second accident. He noted: [64] "She gave evidence that after the accident on 16 May 2009, she had a few months off work. The records indicate that, apparently in addition, she was certified by Dr Guirguis as unfit for duties from 16 September to 16 December 2009 and as unfit to walk more than 50 metres from 5 February 2010 to 5 May 2010 and from 26 May 2010 to 26 August 2010, a few days after the second accident." 1. The plaintiff had also seen Dr Brian Noll, an orthopaedic surgeon, on 16 February 2012. He had reported, as noted by the trial judge, with respect to the injury in May 2009: [65] "She said that she was off work completely for about three months after the subject accident. She then returned to work sporadically, working only a few days per week and being on and off work at intervals. She had difficulty providing any details regarding her work attendance and indicated that her memory is very poor." 1. With respect to the small tear at L5/S1, the judge returned to discuss the MRI scans in considering the numerous reports of Dr Darwish. [66] Dr Darwish had reported on 26 August 2009 (after the first accident): "CT scan of the lumbo-sacral spine dated 17 July 2009 showed disc bulges at L4/L5 and L5/S1 level. The disc at L5/S1 is more on the left side potentially compressing the left S1 nerve root." Dr Darwish's report of 30 November 2010 stated: "MRI scan of the lumbo-sacral spine dated 12 November 2010 showed L5/S1 disc dehydration and small tear but no obvious nerve root or cauda equina compression." (Although the judge referred at [55] to this scan having been undertaken on 12 November 2009, it is clearly a typographical error; there is no dispute that the scan was undertaken in 2010, and was so understood.) 1. If there is a criticism to be made of the judgment of the trial judge, it is that he did not deal in one place with the tear in the lumbar spine, which appeared first in the MRI taken two months after the 2010 accident. However, it appears that his principal reason for not placing reliance on that aspect of the MRI followed from the acceptance of Dr Bodel's evidence set out at [61]-[62] above. 2. The reasons may be summarised as follows. First, none of the orthopaedic experts affirmatively identified the tear as having been caused by the second accident. Secondly, none of the orthopaedic surgeons identified the tear as the cause of any change in symptoms following the second accident. Thirdly, there was no significant change in symptoms following the second accident. Fourthly, Dr Bodel accepted that the abnormalities which could be seen in the MRI scans were consistent with degenerative changes. Fifthly, Dr Darwish, who was the plaintiff's treating orthopaedic surgeon, gave no evidence of causal connection. Conclusion 1. The careful reasoning of the trial judge in rejecting the plaintiff's claim has not been shown to be erroneous in any material respect. Nor were the reasons deficient. Accordingly, the appeal must be dismissed. 2. The Court should make the following orders: 1. Dismiss the appeal from the judgment of the District Court dated 26 April 2016. 2. Order that the appellant pay the respondent's costs in this Court. 1. N ADAMS J: I have had the considerable advantage of reading the reasons of Basten JA in draft. I agree with his Honour's reasons and the orders proposed. ********** Endnotes 1. Tcpt, 09/03/16, p 3(12). 2. El-Mohamad v Celenk [2016] NSWDC 335. 3. Judgment at [4]. 4. Judgment at [7]. 5. Judgment at [10]. 6. Judgment at [10]. 7. Judgment at [11]. 8. Judgment at [23]. 9. Judgment at [24]. 10. Judgment at [26]. 11. Judgment at [30]. 12. Judgment at [33]. 13. Judgment at [34]. 14. Judgment at [36]. 15. Judgment at [37]. 16. Judgment at [38]. 17. Judgment at [38]. 18. Motor Accidents Compensation Act, s 131. 19. Judgment at [39]. 20. Judgment at [40]. 21. Report, Dr Darwish, 22 April 2013, pp 1-2. 22. Judgment at [46]. 23. Judgment at [47]. 24. Judgment at [51]. 25. Judgment at [55]. 26. Report, Dr B Darwish, 22 April 2013, pp 3-4. 27. Judgment at [52]. 28. Judgment at [56]. 29. Judgment at [58]. 30. Judgment at [58]. 31. Judgment at [59]. 32. Tcpt, 09/03/16, p 9(32). 33. [2006] NSWCA 373; 47 MVR 231. 34. (2006) 65 NSWLR 587; [2006] NSWCA 87 at [23]. 35. Pham at [90], [98] (Santow JA, Bryson JA and Brereton J agreeing). 36. (2010) 78 NSWLR 125; [2010] NSWCA 82 at [67] (Giles JA, Tobias and Handley AJA agreeing). 37. Mills at [67]. 38. [2010] NSWCA 245. 39. Tchen at [79] (Sackville AJA, Giles JA and I agreeing). 40. (1935) 54 CLR 134 at 138-139 (Rich, Dixon, Evatt and McTiernan JJ); [1935] HCA 71. 41. Lustre Hosiery at 143-144. 42. Heuston v Yore Contractors Pty Ltd (unrep, 9 March 1992). 43. See generally Smalley v Motor Accident Authority of New South Wales (2013) 85 NSWLR 580; [2013] NSWCA 318 at [25]-[29], [52]-[53] (Leeming JA, Meagher and Barrett JJA agreeing). 44. Motor Accidents Compensation Act, s 80(1). 45. Motor Accidents Compensation Act, s 81(1). 46. Report, 13 June 2010, p 3. 47. Report, 14 November 2011, p 3. 48. Report, 7 November 2011, p 2. 49. Report, 13 January 2015, p 3-4. 50. Report, p 6. 51. Tcpt, 10/03/16, p 97(40). 52. Tcpt, p 99(30). 53. Tcpt, p 98(15)-(25). 54. Tcpt, p 99(5)-(10). 55. Tcpt, p 107(33). 56. Tcpt, p 108(22). 57. Report, 18 March 2010, p 6. 58. Report, p 8 at par 11. 59. Report, 5 August 2010, p 2. 60. Report, p 3. 61. Report, 12 August 2011, pp 1-2. 62. Report, pp 4-5. 63. Report, 7 March 2011, p 2. 64. Judgment at [47]. 65. Report, 16 February 2012, p 3; Judgment at [47]. 66. Judgment at [53]-[55]. 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2017