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Respondent

Judges: Penfold, Burns and Buchanan JJ

Date: 11 January 2013

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1. Sections 45(1)(a) and 46 of the Civil Law (Wrongs) Act 2002 (ACT) (“the Act”) provide as follows:

45(1) A decision that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’);

46 In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

2. In this appeal the appellant seeks a new trial of the assessment of damages in a case to which those provisions applied (Leighton v Blundell [2011] ACTSC 136). The appellant alleges that the trial judge’s evaluation of the evidence at the initial trial should be regarded as unreliable because of a delay in delivering judgment. We do not accept that criticism.

3. It was also argued that the trial judge misunderstood or misapplied the test he was required to apply to the issue of causation, and so failed to apply the correct test, namely that stated by s 45(1)(a) of the Act. We accept that there is an available foundation for this criticism but it makes no difference to the substance or effect of the trial judge’s conclusions and affords no reason to direct a new trial. THE TRIAL

4. In the trial from which the present appeal has been brought, the appellant accepted liability for harm caused to the respondent. However, there was a lively contest about the extent of that harm. In the judgment under appeal, the trial judge accepted, in substance, the respondent’s allegations of harm and rejected the appellant’s attempts to confine the extent of his liability (except for some matters of calculation of damages to which reference need not be made at the moment).

5. Section 40 of the Act defines “harm” in the following way: harm means harm of any kind, and includes –

(a) personal injury; and

(b) damage to property; and

(c) economic loss.

6. The trial judge found that the respondent had proved a case of both personal injury and economic loss. He awarded judgment to the respondent in the sum of $866,266.66. THE FACTS

7. The harm caused to the respondent was the result of a motor vehicle collision on 18 November 2004. It is not necessary to recount all the details of the accident. It is sufficient to record that the vehicle the respondent was driving was struck by the car behind it.

8. The same day the respondent saw her general practitioner, Dr Leung. The respondent told Dr Leung that she was very shaken as a result of the accident and that she had vomited twice and now had headaches. He diagnosed that she had suffered a “whiplash”. She saw Dr Leung again a few days later. She reported that in the meantime she suffered severe headaches and intense pain in the left-hand side of her neck down the back to just below her shoulder blade. She also reported that the outer thigh of her left leg went numb and she experienced pins and needles which went down over the front of her calf to her big toe and the next one to it, and she felt pain in her low back on the left side. Thereafter the respondent made various visits to Dr Leung and to physiotherapists. She was certified unfit for work for a time.

9. On 12 May 2005 the respondent saw Dr Colin Andrews, a consultant neurologist to whom she had been referred by Dr Leung because of her ongoing symptoms, mainly the pain in her neck and her migraine headaches which had been persisting since the collision.

10. Dr Andrews formed the view, using a technique identified as a SPECT scan, that the respondent had a marked inflammation in two joints of her cervical and lumbar spine, for which he treated her without success. In his evidence before the trial judge Dr Andrews expressed the view, although only in further re-examination, that the inflammation which he diagnosed was the result of the motor vehicle collision. At the hearing of the present appeal, Dr Andrews’ diagnostic technique was attacked upon the basis that other doctors did not share his view that the SPECT scan was a reliable diagnostic aid but, as will be seen, other doctors came independently to the view that the respondent’s continuing symptoms were the result of the motor vehicle collision.

11. Dr Andrews continued to treat the respondent until March 2006. His reports give a picture of ongoing symptoms of neck and back pain and headaches. In a report dated 22 March 2006 he said “there is not much more I can do to try and relieve her current symptoms”.

12. On 23 August 2006 the respondent consulted Dr Speldewinde at the Canberra Hospital Pain Management Unit. Dr Speldewinde provided a report for the purposes of the proceedings in which his initial consultation was supplemented by a further consultation on 27 August 2007. Dr Speldewinde’s assessment of the respondent’s circumstances commenced: Yvonne Leighton has quite severe major depression, and a significant ongoing chronic pain disorder related to cervical and lumbar strains. These may or may not be related to zygapophysial joint injections but such diagnostic avenues have not been undertaken. She also has migrainous headaches.

These disabilities are directly related to the effects of the motor vehicle accident as described to me. There has been pre-existing depression from difficulties in 2000, and for which she was on anti-depressants for eight months. She felt she had resolved these problems by the time of the motor vehicle accident of 2004.

13. His prognosis was: The prognosis remains guarded, and it is likely that she will remain in her current state for the long term, and certainly unless a comprehensive management program is successfully undertaken.

14. The respondent’s life had not been incident- or pain-free before the motor vehicle accident, a matter which received extensive attention before the trial judge. Arising from treatment with which the respondent was provided in the period before the motor vehicle accident, a report was provided by Dr Leanne May, consultant rheumatologist, on 14 January 2003. In that report Dr May referred to the respondent’s complaints of “chronic low back and left lower limb pain” with low back pain being present “constantly for at least five years”. However, Dr May reported, of the respondent at that time, that: “She is constitutionally well and has no symptoms of inflammatory pain”. She recorded that the respondent presented “with non-specific chronic pain disorder with allodynia and associated neuropathic symptoms in the absence of significant musculo-skeletal or neurological findings on examination and reported assessments”.

15. On the present appeal the respondent relied upon Dr May’s report as providing, when compared with subsequent reports, a convenient “before and after” picture of her circumstances.

16. Part of the “before” picture was that over a long period of time the respondent had suffered depressive conditions and had consistently reported suffering severe and chronic pain for which there was no immediately apparent physical explanation. From about 2003, however, her circumstances had improved, her reported pain abated and she returned to virtually full-time work.

17. Evidence given during the trial by Dr Graham George, consultant psychiatrist, suggested that in that earlier period before the accident the respondent “may well have somaticised a large element of her distress”. This was a reference to a series of events recorded by the trial judge which suggested to Dr George that the respondent had experienced “a longstanding depressive disorder that waxed and waned over time according to life’s circumstances”. He said: “she has had a very difficult life and she’s had a number of very serious psycho-social stresses over time and more than likely there is a strong somatic component [in] the way she presents or has presented over time”. By contrast Dr George felt that the pain the respondent suffered after the motor vehicle accident “appears to be some new injury” and “the pain disorder relates to purely her physical condition”. He observed that “she’s actually had a major depression at some stage, but at the time when I saw her, she had no symptoms of that or very mild residual symptoms of that, which did not constitute a condition”.

18. The trial judge accepted this and other expert evidence which attributed symptoms reported by the respondent from the date of the accident to the effects of the accident. He rejected the suggestion that symptoms reported after the accident should be seen as a continuation of earlier, psychologically-based, disorders or as the result of a pre-existing degenerative condition, so far as they might have a physical origin. Allied with these arguments at the trial was the contention that the respondent was not a reliable reporter of her true condition after the accident. THE APPEAL – FACTUAL ISSUES The respondent’s credibility

19. On the appeal a stronger submission was made, to the effect that the respondent should not have been accepted as a witness of credit. This was a change from the way the matter was argued at first instance.

20. For the purpose of the trial the respondent was required to see expert medical practitioners to whom she was referred on behalf of the appellant. One criticism that was made of the respondent at the trial was that she had not fully disclosed her prior history to some of the medical practitioners, including Dr Speldewinde. The trial judge recorded: 116. It was, however, not suggested to Ms Leighton in cross-examination that she did this deliberately or to hide the past complaints. It was suggested that her reports of her past history was inaccurate but it was not suggested that this was deliberately inaccurate nor that it was intended to deceive the medical practitioners and enhance her case.

21. The trial judge also recorded: 119. I was able to observe Ms Leighton carefully as she gave evidence for almost two whole days. She admitted the matters alleged. I formed the view that she was honest and truthful to the best of her memory, but that her memory failed her.

Significance of delay

22. In addition to challenging the respondent’s credit on the appeal, including the veracity of her reported symptoms after the accident, the appellant submitted that the trial judge had become disabled from properly evaluating the respondent’s credit by undue delay in delivering a judgment.

23. The appellant gave her evidence in February 2008. The trial concluded on 16 December 2008. Judgment was delivered on 31 August 2011. The final observation made by the trial judge in the judgment was as follows: 368. I sincerely regret that the busyness of the court has delayed the delivery of judgment and these reasons in this matter. Nevertheless, I have read carefully the entire transcript and the exhibits tendered at the trial as well as my contemporaneous notes. These have resulted in a good recall of the proceedings and of the witnesses giving evidence, notwithstanding the passage of time.

24. Nevertheless, the appellant submitted that any advantage which the trial judge may have had sitting at first instance, including his ability to reliably form impressions “based upon demeanour in the witness box” had been lost and that “little if any weight” should be attached to findings made by the trial judge about credibility.

25. It may be accepted that delay in delivery of a judgment may require that an appeal court give careful attention to conclusions of fact challenged on appeal. For example, in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 a Full Court of the Federal Court of Australia said (at [68] – [70]): 68 Where there are relevant contemporaneous materials, such as file notes and correspondence, and there is significant delay between the hearing of evidence and the giving of reasons for conclusions, being reasons that do not advert to the contemporaneous materials and do not give specific reasoning for accepting or rejecting the evidence of particular witnesses, the conclusions reached should be given careful scrutiny and consideration by an appellate court where the findings are challenged on appeal.

69 Delay between the taking of evidence and the making of a decision is not, of itself, a ground of appeal, unless the judge could no longer produce a proper judgment or the parties are unable to obtain from the decision the benefit which they should (cf Boodhoo v Attorney-General of Trinidad and Tobago [2004] 1 WLR 1689 at [11]-[12]). Nor does such delay of itself indicate that a trial has miscarried or that a verdict is in any manner unsafe. However, where there is significant delay in giving judgment, it is incumbent upon an appellate court to look with special care at any finding of fact challenged on appeal. In ordinary circumstances, where there is a conflict of evidence, the trial judge who has seen and heard the witnesses, has an advantage.

70 That advantage includes seeing the oral and documentary evidence unfold in a coherent manner, which cannot be replicated on appeal (State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 per Kirby J at [90]; Bartlem Pty Ltd v Cox Industries (Australia) Pty Ltd (2002) 55 IPR 449 at [87]). That advantage will ordinarily prove decisive on appeal unless it can be shown that the trial judge failed to use or misused such an advantage. The mere fact of a long delay itself weakens a trial judge's advantage. Thus, delay must be taken into account when reviewing findings made by a trial judge after a significant delay from the time when the relevant evidence was given.

26. Later, in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, the High Court dealt with a case in which an administrative tribunal had decided a matter based on findings about demeanour and credibility of witnesses which were expressed in a decision given well after hearing the relevant evidence. Some general principles were discussed by the High Court. Although the case concerned the identification of jurisdictional error some of those general principles are relevant. Gleeson CJ pointed out at [5]: Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare.

27. Kirby J said at [78]: As numerous authorities attest, the issue presented by the complaint of delay is rarely, if ever, about the delay itself. The issue is ordinarily about the effect of the delay upon the decision that is impugned.

28. Callinan and Heydon JJ said at [166]: Neither the appellants nor the first respondent cited any cases in which excessive delay has been accepted as a basis for a review of an administrative decision.

and at [172]:

Another way in which the Tribunal can disable itself from giving consideration to the presentation of a case arises where it permits so much time to pass that it can no longer assess the evidence offered. …

29. We shall refer shortly to the careful analysis by the trial judge of the evidence of the medical experts, but there are a number of reasons why the mere fact of a delayed judgment should not, in the circumstances of the present case, be regarded as rendering the findings of the trial judge unreliable. First, there is no reason to doubt the adequacy of the materials available to the trial judge to refresh his memory of the evidence and the impressions he formed about it. The trial judge had all the medical reports and the clinical notes. The transcript contained a complete record of the oral evidence. The trial judge referred to the fact that he had kept, and later referred to, contemporaneous notes made as the evidence was given. Effect of respondent’s inadequate reporting

30. Secondly, we see no serious basis upon which it can be contended that any failure by the respondent to later adequately report her prior history to various medical practitioners could bear upon the assessment of the medical evidence relating to that prior history. Nor did it affect the medical evidence about the respondent’s symptoms after the accident. Each of the experts was provided during their evidence with relevant details of the respondent’s prior history and had an opportunity to adjust their opinions accordingly, if appropriate. The opinions relied upon by the trial judge were final opinions after all those matters had been taken into account.

31. Accordingly, no question of credit was bound up in the conclusion by the trial judge that the respondent’s prior history of psychiatric or psychological disturbance and her prior history of pain did not explain or relate to the symptoms or disabilities she suffered after the motor vehicle accident. Nor, having regard to the trial judge’s observations recorded at [119] of the judgment (set out earlier), is there a sufficient foundation to doubt the veracity of the evidence which the respondent gave about her ongoing symptoms and disabilities, much less the opinion of various medical experts that those ongoing symptoms and disabilities were the result of the motor vehicle accident. Evaluation of appeal grounds

32. In our view all those matters should be evaluated on the appeal accepting two premises: first, there is no reason to conclude that the trial judge was disabled by any delay from properly assessing either the expert evidence or the truthfulness of the evidence of the respondent; and secondly, there is no other basis on which to challenge the finding of the trial judge that the respondent was a truthful witness who did her best to give honest evidence about her post-accident symptoms. The medical evidence

33. The respondent’s circumstances at the time of the trial were described by the trial judge in the following way: 93. She continues to have pain in her low back, neck and head. It is relieved by medication and by lying down. She also manages it by not pushing herself too hard. Her left leg remains painful. She described it as though “steel wool was coming out of the skin” from the lateral side of her left thigh from about the hip down the inside of her shin to her foot to the big toe and the toe next to it. She also has pain in her neck on the left side down to her shoulder; at its least painful she described it as “severe”, at its most painful “dreadful”. It gets worse at the end of the day. She also has headaches on the left side of her head over and behind the ear, ranging from the temple to the front of her face. She experiences them once a week.

34. She also experiences migraines, which makes her withdrawn and become so severe that it makes her vision blurry and gives her problems with her speech. She experienced headaches before the collision but those headaches were not of the severity of the headaches she now experiences.

35. This limits her activities considerably, both as to recreation and as to domestic chores.

36. Ms Leighton has also lost weight since the collision, of about seven or eight kilos.

Medical Evidence

97. The medical evidence seemed uniformly to confirm that Ms Leighton suffered with pain and disabilities that she reported as a result of the motor vehicle collision and that these are ongoing.

98. Whilst I did not have a formal report from her general practitioners for the period up to trial, I did have the clinical notes they prepared. They supported this view.

99. Even the defendant’s medical experts took this view, supported as it clearly was by the careful and detailed assessment by Dr Geoffrey Speldewinde and the team at the Canberra Hospital Pain Management Clinic.

100. Perhaps the defendant’s medical expert most critical of Ms Leighton’s claim for damages was Dr Burke who, while perhaps somewhat agnostic, did not really suggest that her reported symptoms did not exist.

101. It appears from a fair reading of both of Dr Burke’s reports that he accepted that she continued to experience pain in her neck, back and leg and that she continued to experience headaches.

102. A little later the trial judge dealt in greater detail with the medical evidence. He recorded Dr Andrews’ finding of “marked inflammation in the left C4/5 and C5/6 facet joints” and his agreement that “it was reasonable to attribute the inflammation to the motor vehicle collision”. He also referred to Dr Andrews’ report in 2007 that the respondent had “documented problems in the neck of a facet joint nature at the left C4/5 and C5/6 level. This is still causing her neck pain and cervicogenic headaches”.

103. The trial judge noted Dr Speldewinde’s opinion that the respondent’s “present disabilities were ‘directly related to the effects of the motor vehicle collision’ as described to him”. The trial judge recorded that: 149. It was not suggested to [Dr Speldewinde] in cross-examination that his diagnosis was wrong, nor that the pain Ms Leighton suffered was or might have been caused by a degenerative condition.

104. Then the trial judge referred to the evidence of Dr Nicholas Burke who had, on behalf of the appellant, produced two reports. Dr Burke felt that any injuries associated with the motor vehicle collision should have rapidly resolved, whereas the respondent reported protracted symptoms and disability. Dr Burke stated: In my opinion, it appears that the most probable cause for the protraction of symptoms and disability relates to the underlying and pre-existing chronic pain disorder. The chronic pain disorder is likely to be contributed to by psychological and other processes, including degenerative changes in the cervical and lumbar spine.

In my opinion, it is most probable that her ongoing symptoms and disability would relate to the chronic pain disorder.

37. The trial judge carefully explained why he did not prefer Dr Burke’s opinion to that of Dr Andrews and Dr Speldewinde. He said: 177. [Dr Burke] acknowledged that Ms Leighton has ongoing symptoms.

38. It was difficult for me to make Dr Burke’s evidence compatible with other evidence. The various investigations did show some degenerative change but it seemed mild. While degenerative change can be symptomatic, it can be asymptomatic and the opinion Dr Burke expressed seemed reliant on generalisations, from what one expects generally, rather than from the specific circumstances here.

39. The report of Dr May appeared to me to show no significant cervical or neck pain. In addition, there was no reference to neck pain in the clinical notes of Ms Leighton’s general practitioners thereafter until well after the collision.

40. Dr Burke seemed to agree, confirmed by the first report of the Pain Management Unit, that depression had pain as a concomitant, and that then there had been a substantial period where Ms Leighton had of absence of neck pain for nearly two years.

41. In addition, if the pain was a result of degenerative changes then that had to be so for the low back, lumbar pain also. Here, however, there were radiological findings. There were scans that were conducted both before and after the collision. Both found no relevant abnormality. This is a powerful challenge to Dr Burke’s approach.

…

183. All in all, I prefer the evidence of Drs Andrews and Speldewinde to that of Dr Burke.

184. Dr Gordon Stuart, a consultant neurosurgeon, also thought that the respondent’s symptoms should be no longer related to the motor vehicle collision. The trial judge said: 203. While Dr Stuart has eminent qualifications and gave his evidence carefully and helpfully, it seems to me that he has not had the advantage of the longitudinal experience that Dr Andrews has had in treating Ms Leighton.

185. Like Dr Burke, he tended to argue from the general to Ms Leighton’s situation without necessarily addressing her particular circumstances, though he properly referred to studies that showed that his generalisation as to the likely time period for resolution of the whiplash injury was by no means absolute and that a small but not insignificant number take very much longer to resolve.

…

206. It seems to me, further, that the virtually complete absence of symptoms, at least so far as her neck was concerned, for over 12 months prior to the collision and then the re-appearance of significant neck pain so temporally close to the collision, leads me to prefer the opinions of Drs Andrews and Speldewinde.

207. Then the trial judge referred to the evidence of Dr George to which I have earlier referred. He extracted oral evidence from Dr George that “we know that she’s got this vulnerability for depression and that may make her far more susceptible to succumbing to symptoms whether they be of a somatic origin or of a real, organic origin. And her ability to make adaptive responses to move from her situation is extremely limited”. This passage appeared in a longer extract but appears to us to capture the foundation for the observation which the trial judge then made: 237. The upshot of this evidence is that, as I have accepted the evidence of Dr Andrews and Dr Speldewinde, I would accept this evidence of Dr George which not only puts the pre-collision medical situation in perspective but also places Ms Leighton in a vulnerable position at the date of the collision. That may explain the severity and prolongation of her response to the collision itself.

208. One criticism made by the appellant was that the trial judge made no specific reference to a report by Dr Doron Samuell, a Clinical and Forensic Psychiatrist who had been asked to see the respondent by the workers’ compensation insurer of one of her employers. Dr Samuell confined his opinion to the respondent’s psychological status. He found her to have no psychiatric disorder and not to require any psychiatric or psychological assistance. Dr Samuell concluded: From a psychological perspective, Ms Leighton is fully fit to work in any capacity for which she is suitably qualified. Her fitness for work should be determined predominantly by a physical medicine specialist.

209. This report does not appear to us to assist the appellant’s case. Dr Samuell saw the respondent in October 2005 at a time when she was complaining of severe ongoing pain and disability. Dr Samuell’s report assists in a conclusion that the source of her ongoing symptoms and disabilities was not likely to be a depressive condition or other psychological disorder. We do not understand the criticism which was made of the trial judge for not referring to it.

210. One matter which the trial judge found to be of real significance was that the respondent’s pre-existing history of pain appeared to have resolved by sometime in 2003. The trial judge recorded these matters in the following way: 106. A major difficulty with this case was that Ms Leighton was a poor historian. It is clear that in the period as long ago perhaps as 2000-03, she had a range of symptoms, many of which were similar to those that she suffered in the period after the collision and still suffers though, as Dr Speldewinde sagely noted, there are differences, for example in their focus.

211. Thus, in her dealings with Centrelink, when she applied for her disability support allowance, she disclosed in her application forms depression, chronic cervical pain from about January 1999, headaches from about February 2000 and backache. Later, she reported agoraphobia and panic attacks.

212. The reports of her treating doctor, Dr Stuart Haynes, to Centrelink referred to agitated depression together with, on two occasions, acute adjustment disorder and agoraphobia. He also referred on three occasions to neck and back pain or chronic cervical spine pain.

213. In March 2001, a psychologist employed by Health Services Australia had described her as “subdued, unanimated”, becoming emotional and tearful during the interview and increasingly physically uncomfortable, with severe back/neck pain and associated headaches as the interview progressed. He noted symptoms of depression since about mid 2000 and “somatic features of musculo-skeletal pain in the neck and shoulders”. He also noted weight loss in the previous six to nine months.

214. The clinical notes from her general practitioners showed that she presented from time to time for pelvic pain, back pain since July 2001, which at one stage was thought to be sciatica, depression, pain in her left hip leading to her left leg and paraesthesia in her middle toe. In October 2002, she complained of pain “in all the joints ... shoulder and neck, elbows, knees, hips” but other than on that occasion, I saw no reference in the notes to neck pain.

215. In January 2003, she was referred to Dr Lea-Anne May, a Sydney consultant rheumatologist, who examined her and provided a detailed report dated 14 January 2003.

216. Dr May reported that Ms Leighton (then using her married name of Lilley), complained of chronic low back and left lower limb pain, which, she said, had been present for five years. There was no history of back injury and the pain was not related to movement or position. It was said to limit her standing, sitting, walking, resting and sleeping.

217. The trial judge also examined the clinical notes kept by those who had treated the respondent in the period 2003-2004. His Honour said 239. To evaluate the causation issue fairly, it seems to me that it is necessary to examine the clinical notes for the period of 2003 to 2004.

218. I did not find it easy to decipher all the notes, but they showed that between 14 January 2003 (when she saw Dr May) and the collision on 18 November 2004, she visited 22 times.

219. On 29 January 2003, she discussed Dr May’s report and was, it appears, doing her exercises and her pain was “tolerated by Tramal”. Thus, at this stage, there were certainly discussions about pain as there were the next day on 30 January 2003.

220. On 8 July 2003, when she had lost her court case, she complained of pain in both her hips and her back, but she had stopped taking Cipramil.

221. On 22 July 2003, she felt depressed and went back on to Cipramil.

222. On 2 August 2003, she had a booster injection.

223. On 18 August 2003, however, she complained of nausea and was labile and depressed at her illness, stressing about her son leaving. She was tender on the shoulder region and in her lower back. An endoscopy was arranged.

224. The next day, she discussed a gastroscopy in a couple of weeks.

225. On 28 August 2003, she complained of diarrhoea and lower back pain.

226. On 3 September 2003, she complained of nausea but there was no mention of pain. The next day, she complained of gastritis but not of pain.

227. Her next appointment, 10 September or October (I could not tell) 2003, was in relation to nausea and with no reference to pain as with the appointment on 21 October 2003.

228. On 23 December 2003, she complained of headaches but no other pain and arranged for immunisations which were given on 20 January 2004 and 17 February 2004.

229. On (probably 26) February 2004, she consulted about some ear problems and sleeplessness but no other reference to pain.

230. On 8 April 2004, she consulted about a weeping sore eye and a cut to her left hand.

231. On 24 June 2004, she again complained of vomiting and diarrhoea but made no mention of pain.

232. In early October 2004, she visited her doctor to deal with a finger crushed in a car door.

233. On 14 October 2004, she attended her general practitioner again but the notes were illegible, though doing the best I could there was no reference to pain or depression.

234. On 20 October 2004, she attended for a skin check for sun damage and there was a discussion about the use of Botox but clearly in a cosmetic context.

235. On 15 November 2004, she complained of nausea and vomiting again. She was not stressed or depressed. It was noted that the gastroscopy and endoscopy were normal as was an abdominal ultrasound. There was no reference to pain.

236. Thus, in the period prior to the collision, so far as attendances on her general practitioners were concerned, there were no complaints of neck pain after January 2003, no complaints of shoulder pain or back pain after 18 August 2003 and no complaints about depression after 18 August 2003.

237. Her last prescription for Tramal appears to have been on 8 July 2003 and for Cipramil, on 22 July 2003.

238. These confirm, it seems to me, a very substantial period during which she was relatively pain-free and free of depression. These findings are significant and reinforce the view that there was no continuity between the pre-collision medical conditions and the post-collision medical conditions.

239. Support for this conclusion was also found by the trial judge in observations of the respondent by those with whom she worked during that period.

240. We shall return shortly to the legal test which the trial judge explained he was applying when he reached his conclusions about the extent of the respondent’s physical injuries. Leaving that question, and references to it, aside for the moment, those conclusions were expressed as follows: 292. On all the evidence, Ms Leighton has clearly significant pain and disabilities which were affecting her ability to work and, at the time of the trial, completely so. While Dr Stuart was not of that opinion, all the other medical practitioners, including Dr Burke, were of that opinion.

…

294. …. I accept that Dr Andrews and Dr Speldewinde have identified the motor vehicle collision as the cause of her ongoing symptoms and disabilities. While he relies on Dr Andrews to a large extent, Dr George is nevertheless supportive in his analysis of the pre-collision situation in context. Ms Lavers is certainly not inconsistent and may be said to express some support.

295. It may be, however, that even if there is some contribution to the symptoms and disabilities from her pre-collision situation, it is clear that it was dormant or in remission for a considerable time and that it only re-emerged as a result of the collision.

...

297. I have had careful regard to the evidence of all the medical experts. Clearly, on the evidence of Dr Andrews and Dr Speldewinde, the plaintiff has adduced an evidential basis of causation, which, though relying on the evidence of Dr Andrews, is nevertheless supported by the evidence of Dr George which explains and contexualises the history on which the defendant relied so heavily.

…

301. … Ms Leighton has satisfied me that the collision is the cause of her ongoing neck and back pain and headaches. Dr Burke did accept that the collision seemed to him to have caused musculoligamentous injury in both the cervical and lumbar spine. In the circumstances, I do not consider I need to distinguish between the two areas.

302. Subject to the next matter to be discussed, those conclusions appear to us to be ones which were carefully explained in the judgment. They appear to us to be ones which are not open to attack simply upon the ground that the judgment was delayed and we can see no other ground upon which they might be attacked. No relevant finding of fact has been attacked on the appeal except the conclusion by the trial judge that the respondent was a truthful witness whose evidence of her symptoms and disabilities after the accident should be accepted. From the retrospective attack on the credit of the respondent mounted in the appeal it was suggested that the trial judge could not, and should not, have been satisfied that the respondent was a credible and reliable reporter of her post-accident symptoms. We have explained why we do not accept this contention, or the premise from which it proceeds. THE TEST FOR CAUSATION

303. However, an attack was also made upon the legal test which the trial judge applied to the determination of causation. If that challenge is made good it would afford an independent reason to uphold the appeal and remit the matter for a new trial on damages. The trial judge said: 293. The real question, then, is whether Ms Leighton has established that her pain and present disabilities were “caused or materially contributed to” by the motor vehicle collision: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 (at 514). The cause is a question of fact that I must determine, but in doing so, I should apply a common sense approach to the evidence I have heard and read and which has been summarised above: March v E & MH Stramare Pty Ltd (at 515).

304. This was the test which was applied to support the conclusion at [294] and [301] (set out at [45] above) that the motor vehicle collision was the cause of the respondent’s ongoing symptoms and disabilities, namely her ongoing neck and back pain and headaches.

305. The references given by the trial judge to March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 (“March v Stramare”) are to the judgment of Mason CJ at 514 and 515 of the report. One important question addressed in that case was whether the “but for” test should be the only test of legal causation. McHugh J thought it should be. The remaining judges disagreed. However that is the test which is now stated by s 45(1)(a) of the Act. The question which is thereby revealed is whether the trial judge misapplied the correct test to the issue of whether the symptoms and disabilities, which he accepted the respondent continued to suffer, were caused by the motor vehicle collision in the relevant sense.

306. In the report of March v Stramare at 514 Mason CJ said: Generally speaking, … causal connexion is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent …

307. However, at 515 of the report Mason CJ said: Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact — to be determined by the application of the “but for” test — and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing: see, e.g., Fleming, Law of Torts, 7th ed. (1987), pp. 172-173; Hart and Honoré, Causation in the Law, 2nd ed. (1985), p. 110. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments: see Fleming, p. 173. However, this approach to the issue of causation (a) places rather too much weight on the “but for” test to the exclusion of the “common sense” approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon C.J., Fullagar and Kitto JJ. remarked in Fitzgerald v. Penn “it is all ultimately a matter of common sense” and “[i]n truth the conception in question [i.e., causation] is not susceptible of reduction to a satisfactory formula”.

(Footnotes omitted.)

52. This appears to be the passage to which the trial judge was principally referring. It appears to suggest that a “common sense” approach might lead to a different result from the “but for” test, at least in some cases. The trial judge made no reference to s 45 of the Act.

53. In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 (“Adeels Palace”) the High Court gave consideration to s 5D(1) of the Civil Liability Act 2002 (NSW) which is in largely the same terms as s 45(1) of the Act. The High Court said: 41 The first point to make about the question of causation is that, in these cases, it is governed by the Civil Liability Act.

42 Section 5D(1) of that Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability.

43 Dividing the issue of causation in this way expresses the relevant questions in a way that may differ from what was said by Mason CJ, in March v E and MH Stramare Pty Ltd, to be the common law’s approach to causation. The references in March v Stramare to causation being “ultimately a matter of common sense” were evidently intended to disapprove the proposition "that value judgment has, or should have, no part to play in resolving causation as an issue of fact". By contrast, s 5D(1) treats factual causation and scope of liability as separate and distinct issues.

44 It is not necessary to examine whether or to what extent the approach to causation described in March v Stramare might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied.

45 Next it is necessary to observe that the first of the two elements identified in s 5D(1) (factual causation) is determined by the “but for” test: but for the negligent act or omission, would the harm have occurred?

54. The references at [43] in Adeels Palace, quoted above, to the observations of Mason CJ in March v Stramare are to the passage at 515 of the report which we extracted at [51] above. It should also be noted that the present appeal involves no question concerning scope of liability.

55. Accordingly, as directed by the High Court in Adeels Palace, it was necessary that the conclusions expressed by the trial judge satisfy the requirements of s 45(1)(a) of the Act if the appellant was to be held liable for the “particular harm” of which the respondent complained, namely her ongoing symptoms and disabilities as well as any economic loss which might be assessed.

56. In our respectful opinion the findings made by the trial judge, to which we have already referred, were such that the admitted negligence of the appellant was clearly found to be a “necessary condition of the happening of the harm” which formed the basis of the respondent’s case. It seems to us to be quite apparent that the reference by the trial judge to the judgment of Mason CJ in March v Stramare did not distract attention from this requirement, even though no specific reference was made to s 45 of the Act in this context. Accordingly, we would not set aside the verdict for legal error.

57. Nor would we, for the reasons given earlier, set aside the judgment on the footing that any relevant error of fact had been demonstrated by the appellant, or that the trial judge was disabled by delay from assessing the reliability of the evidence in any respect. TRIAL JUDGE’S ASSESSMENT OF HARM AND LOSS

58. After he had made his findings about the cause of the particular harm upon which the respondent relied, the trial judge went on to assess the extent of other harm alleged by the respondent. Some of it he found to be established. Some of it he found to be overstated. There is no particular issue which arises on the appeal in any of those respects.

59. Similarly there is no particular issue which arises on the appeal concerning questions of economic loss if the verdict is not to be set aside for legal or factual error. Although some criticisms were made in written submissions of the way in which the trial judge had approached the assessment of particular forms of economic loss, those criticisms were initially advanced for the purpose of assisting the Court in the event that the appeal was upheld and the Court felt it appropriate to attempt to assess, on appeal, the amount to be awarded for the admitted negligence of the appellant. At the hearing of the appeal counsel for the appellant departed from the suggestion that it would be possible for the Court to undertake an assessment of damages for itself if the appeal was upheld, and argued only that the matter must be remitted for a new trial on damages. It was not suggested that the earlier suggested modifications to the assessment of economic loss were appropriate independently of the appeal being otherwise upheld. Indeed, counsel for the appellant very candidly eschewed any such approach. CONCLUSION

60. In those circumstances, there is no foundation to interfere with the assessment made by the trial judge of the amount to be awarded as damages under the various heads identified by him.

61. Accordingly, we dismiss the appeal with costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Acting Associate:

Date: 11 January 2013

Counsel for the Appellant: Mr P Deakin

Solicitor for the Appellant: DibbsBarker Lawyers

Counsel for the Respondent: Mr A Bartley, Mr W Sharwood

Solicitor for the Respondent: Ken Cush & Associates

Date of hearing: 6 November 2012

Date of judgment: 11 January 2013

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