Davies v Nilsen [2017] VSCA 202

Once again, this report does not support the applicant's case in respect of aggravation of spinal degeneration.

90 As the trial judged noted, Dr McPherson retired from practice in April 2002. Thereafter the applicant was treated at St Helena's first by Dr Grant Barham and then from 2004 onwards by Dr Penny Gaskell.

91 Both Dr McPherson and Dr Barham are now deceased. Nevertheless, none of the treating doctors prior to 2004 (including other doctors St Helena's and all of the treating specialist medical practitioners) were called to give evidence. The trial judge made the following findings on the evidence as to the course of the applicant's symptoms and treatment up to 2004.

Building on what has previously been summarised and noted, and acknowledging that further investigations and opinions are yet to be considered, by this point in time the following provisional conclusions can be drawn from the evidence:

• A misdiagnosis in April 1998 of disc prolapse and nerve root compression gave an unfounded cause for belief that Ms Davies had some significant disc pathology in her lumbar/sacral spine as providing a basis for her felt-pain in her lower back and left knee.
• In turn, that diagnosis may well have contributed to the perceived need for prescription of stronger pain-killing medication, including, by early 1999, opiate-based analgesics.
• All the while, Ms Davies' fatigue, lack of work and other activity coincided with significant weight gain exacerbating existing joint problems.
• Depression, overlapping with her chronic fatigue condition, recognised by Dr McPherson as having re-emerged as early as mid-1996, became increasingly prominent and was seen as having an inter-relationship with her physical symptoms.
• Her left-knee pain began to take over as a major presenting complaint from at least early 1999.
• The report of Associate Professor Rosenfeld in November 1999, four years after the accident, marked a turning point in Ms Davies' injury-narrative as given to her doctors: first, she now claimed that her low-back pain and intense left knee-pain, by then her two main complaints, had begun almost immediately following the accident; second, she now claimed that her termination from Centari Systems was a consequence of absences from work due to her car accident injuries. Neither claims are supported by the contemporaneous evidence yet both thereafter became the foundational history for causation attribution going forward.
• Her two major complaints had come to be diagnosed as chronic pain syndromes with possible elements of somatoform disorder, and her analgesic intake had become a problem in itself driving the need for specialist pain management treatment to try and reduce her dependence and intake.
• The Court heard from none of the doctors who had assessed or treated Ms Davies over the eight and a half years between the accident and Dr Gaskell's treatment commencing in June 2004.[49]

92 The body of evidence to which we have referred fully justified the judge in rejecting the accuracy of the history given to Mr Brearley as correct. Neither the records of the applicant's treatment, the reports of the applicant's treating medical practitioners prior to May 1997, nor the opinion of her treating specialists thereafter, supported the conclusion that she was in fact suffering from ongoing lower back pain on a continuing basis.

93 The applicant's written case makes a number of further specific evidentiary submissions relating to the applicant's lower back which are embraced in the proposed grounds of appeal. The first relates to a report supplied by Dr McPherson to the applicant's solicitors on 18 July 2007, more than 11 years after the motor accident and some five years after he had retired from practice. The applicant submits that the trial judge erred in failing to give substantial weight to this report as corroborating the fact of complaint with respect to lower back pain by the applicant prior to April 1996. The applicant's written case asserts that this report shows that between 5 December 1995 and 21 March 1996 an examination occurred demonstrating 'straight leg raising was restricted to approximately 40 degrees because of low back pain.' It is further submitted that this led to a repeat of x-rays and a CT scan of 4 April 1996.

94 The relevant part of Dr McPherson's report reads as follows:

Then there was the motor vehicle event in the evening of 22nd November 1995. Because of the consequential health issues evolving from the condition, Dianne required much health attention to fully mobilise again - including physiotherapy from Ms Helen Moore of Diamond Creek. Much medication was required for management of pain and it was thought that such impinged on her ability to work at the capacity that she had established prior to the car accident.

...

On the day after the motor vehicle accident, Ms Davies attended my surgery and was noted to have tenderness in the upper thoracic spine and over both knees. For this condition she had physiotherapy involved rest, icing, compression, and elevation of the appropriate areas.

Review on 27th November indicated that:-

• even though the neck was tender she had a full range of movements;

• there was upper thoracic backache;

• there was pain in the left armpit, which radiated to the left elbow, left shoulder and to the left hand. No pins and needles were noted in this area;

• there was tenderness over the left collar bone and the thoraco-clavicular ligament; and

• all reflexes, muscle power, and sensation were present.

X-rays of the neck, collar bone, and chest was arranged and reported as normal, indicating no fractures or distraction. Panadol was arranged and the physiotherapy was commenced. Two days later, Ms Davies reported symptoms which could have related to mild delayed concussion and appropriate x-rays were performed and were normal.

Over the months Ms Davies neck, head, shoulder and arm discomfort eased. However, she was having considerable discomfort relating to her lumbar spine - particularly on the left side. As time went by the discomfort continued and precluded walking any significate distance. Yet on examination with her supine, straight leg raising was restricted to approximately 40° because of low back pain. Yet again, on getting her to sit upright on the couch she could easily attain 90° without complaint. This was perplexing. X-rays were repeated and found to be normal. Therefore, CT was performed on 4th April 1996 relating to the thoracic spine and this was regarded as normal also. An MRI was performed on 6th November 1998, revealing nothing of significance, apart from a certain degree of high wear at the facet joint of L5/S1 left side. One of the imaging techniques demonstrate a possible disc prolapse which could not be confirmed on later episodes of imaging.

Treatment in late 1996 consisted of Temaze (a hypnotic) for nights and Panadeine Forte for pain (2 - 4 tablets / four times a day).

Because physiotherapy/massage did not afford relief, the patient was referred to the public hospital system because of financial consideration - particularly because of MRI requirements.

By late 2000 as no progress seemed to be made with the patient requiring more and more analgesia for less and less result, Ms Davies was referred to Dr M R Stewart, consultant physician. After a thorough examination she concluded that there was little that she could do regarding management for pain and suggested that she be referred to the St Vincent's Pain Clinic. After a long wait this eventually took place in March 2001... [Dr McPherson then quoted Dr Vivian's report which we have relevantly set out above at [89].]

With such a report Dianne did not seem to proceed any further with this avenue of approach and it was arranged for her to see Dr John Lloyd at the Department of Neuropsychiatry in the John Kaye Building at the Royal Melbourne Hospital, and also to see Mr Jeffrey Rosenfeld, neurosurgeon, located at that time at the Royal Children's Hospital. Because I left the surgery at that time, I have heard of no reports from these two eminent specialists.

One of the features that was obvious all through this situation was the possibility of depression and I performed a Montgomery-Asberg Depression Rating Scale test (MADRS) and established that she scored 28/60 - indicating mid depression.

On the medicolegal aspect, I referred Ms Davies to Mr P Cottier at Bryce and Bryce on 9th November 1998. Not much came of this referral because of issues that occurred in the company of Bryce and Bryce and its relationship with Mr Phil Cottier. This was not made known to me until quite a later date.

95 The first two paragraphs of this passage are uncontroversial. On the other hand, the findings on examination, which are referred to are not attributed to any particular date and are not recorded in the clinical notes which read as a coherent series of entries during the months in question. Moreover, as the doctor himself noted, the observations made were 'perplexing'. No opinion evidence was called attributing significance to them and it will be recalled that Mr Brearley noted straight leg raising was to 80 degrees on both sides. Insofar as they incidentally reflect a complaint of lower back pain, the conclusion that that back pain was material and ongoing is frankly inconsistent with Dr McPherson's reports of 15 August 1996, 6 March 1997 and most importantly 19 May 1997.

96 Insofar as the CT scan of the thoracic spine is concerned, such a scan is not, as the applicant submits, confirmation of problems with the lumbar spine. Rather it directly confirms what the clinical notes otherwise record, namely ongoing problems with the upper spine. The thoracic spine comprises the 12 vertebrae associated with the chest and ribs.

97 It is uncontroversial that the applicant suffered pain and stiffness in this upper area of her spine following the accident. It is also not in issue that, as Dr McPherson records, 'over the months Ms Davies' neck, head, shoulder and arm discomfort eased' but it is surprising that he makes no reference to the course of pain and stiffness in the upper back.

98 There is also no issue that many years before the report was written complaints of pain in the lumbar spine had commenced to be made to the applicant's treating doctors. Indeed, there is no dispute that such complaints emerged by 1997 after the applicant's WorkCover claim had been resolved. There is also no dispute that such complaints progressed to a point where Dr McPherson found it desirable to obtain medical imaging of the lumbar spine in late March 1998.

99 We do not accept that Dr McPherson's report of 18 July 2007 which describes a change in the general description of the applicant's symptoms can sensibly be regarded as displacing the detailed evidence to which we have already referred as to the nature of the applicant's symptoms following the motor car accident. First, save for one of the stated results of clinical examination following a complaint of lower back pain, the report is in fact consistent with the respondent's case as to the progress of the applicant's ongoing history following the accident. Secondly, because it was written so long after the event, we would prefer the contemporaneous records and more contemporaneous reports of Dr McPherson to his subsequent recollection. Thirdly, there is some doubt as to Dr McPherson's objectivity when one significant aspect of his report of 19 May 1997 is considered.[50] Fourthly, in a number of ways Dr McPherson's report is inconsistent with the clinical notes and other contemporaneous documents which follow the accident. For instance, Dr McPherson records that in the period following the accident Ms Davies required a great deal of medication which was thought to impinge on her capacity to work. Further, Dr McPherson appears to indicate that over the months following the accident Ms Davies was having considerable discomfort relating to her lumbar spine. Neither comment is reflected in clinical notes and other records in late 1995 and through until late 1996. Next Dr McPherson records medication in late 1996 consisting of Temaze for nights and Panadeine Forte 2-4 tablets four times a day. The first reference we can read in the clinical notes to Temaze is the entry of 3 July 1997, and for Panadeine Forte the entry of 7 July 1997. Other prescriptions, for instance Naprosyn in late September 1996, Lovan in November 1996 and Motilium/Maxalon in January 1997 are recorded in the notes.

100 Furthermore, prior to the description of the consequences for the applicant of the motor car accident, Dr McPherson canvasses in detail his understanding of the circumstances in which the relationship between the applicant and employer broke down in June 1996. Dr McPherson concludes that discussion as follows:

From all the forgoing, it was my opinion that Ms Davies' degrading employment at Centari was clearly a significant contributing factor to the development of her anxiety and depressive condition. I felt that the disorder did not arise out of actions the employer may have contended were reasonably justified to discipline or dismiss her. Whether the events of June were such reasonable actions is a question of fact rather than clinical assessment. However, I can only note that Ms Davies account to myself indicated somewhat arbitrary, sudden, and insensitive course of action towards her. At the time of my leaving the St. Helena Medical Centre, Ms Davies was not currently fit for any work at all at Centari because of the Davies/Johnston conflict. She might have had the potential to carry out some part-time light administrative work at a different location, but she would not physically be fit or mentally able to perform meaningful employment for another two to three months at that time with her psychological issues needing further management.

101 As the trial judge observed,[51] Dr McPherson's frank concentration on Ms Davies' humiliation at her employer's remarks about her work standards, independently of any health related absences, undermines her causation case linked to the motor car accident.

102 It follows that we are not persuaded that Dr McPherson's report of 18 July 2007 materially assists the applicant's case.

103 The applicant also submits that the trial judge failed to accord appropriate weight to a report to Centrelink by Dr McPherson as treating doctor of 16 November 1998 recording a 'right sided L5/S1 disc prolapse' with a date of onset given as that of the motor car accident. The report further stated that the applicant had suffered 'following motor vehicle collision three years ago - damaged lower spinal column and now has incapacitating sciatica.'

104 It is submitted by the applicant that this report demonstrates error in relying upon Dr McPherson's earlier report of 19 May 1997. The trial judge addressed the Centrelink report at [177] of his Reasons. It was plainly premised upon the results of a CT scan which Dr McPherson reported to the applicant's solicitors five days earlier had shown:

a prolapse of L5 S1 right disc, the bulge of which is compressing the right L5 and S1 nerve roots as well as the cauda equina producing pain in both legs, worse on the left by compressing across the spinal canal space right to left. The compression on these nerve roots contributes to each sciatic nerve discomfort - intensity being equal. The pain in the lower back and down the legs intensifies at night and consequently insomnia results.

105 In our view, the trial judge was correct to conclude that the weight of medical opinion (including we note ultimately that of Dr McPherson himself) accepted that the MRI carried out for Mr Thien on 6 November 1998 was a better indicator of the applicant's spinal condition. The MRI demonstrated early L5/S1 degenerative disc disease with no evidence of nerve root compression. There was minimal positive disc bulge at L5/S1 with no evidence of herniation, canal stenosis or left nerve root compression. There was accordingly no error in the trial judge's treatment of the evidence comprised in the Centrelink report.

106 Other detailed aspects of the evidence to which the applicant refers in her written case are matters which do not demonstrate that the judge reached overall conclusions with respect to the alleged lower back injury which were somehow glaringly improbable, or contrary to incontrovertible fact, or indeed contrary to the weight of the evidence considered as a whole.

107 The applicant draws specific attention to the fact that the WorkCover statement made by the applicant on 27 June 1996 included reference to 'back injury, whiplash and shoulder injury' sustained in the motor car accident. This is so but that reference is entirely consistent with the complaints of pain in the upper back consistently noted elsewhere prior to that date. Moreover, contrary to the applicant's submission, the statement is significant, as the trial judge noted, because it does not describe continuing problems with the applicant's lower back at work of the kind she now maintains occurred. This is so even if it is accepted, as the applicant and her mother said in evidence, that the focus of the investigator who took the statement was upon the circumstances at work which led to the applicant ceasing work.

108 The applicant further submits that it was not open to the trial judge to fail to be persuaded that, in accordance with the applicant's evidence, the applicant's stress and fatigue syndrome cleared up almost as soon as the WorkCover claim was resolved. The sequential opinions of the medical specialists who treated the applicant in the following years, including particularly Professor Rosenfeld, Dr Lloyd, Dr Stewart and Dr Vivian, provide an ample basis for the judge's conclusion that he should not accept this evidence.

109 It also follows from our conclusions with respect to the evidence concerning the emergence of material symptoms of lower back pain, that the judge did not err in his incidental finding that by the time the applicant saw Professor Rosenfeld she had reconstructed the history of her injuries.

110 For completeness, we should add that the above conclusions with respect to the evidence concerning the applicant's medical history prior to 2004 are not displaced by the evidence as to the applicant's subsequent history. The trial judge carefully analysed that history.[52] In summary, Dr Penny Gaskell took over as the applicant's treating general practitioner in 2004 and referred the applicant to a number of specialist medical practitioners. Of most significance, in terms of the claim with respect to the lower back, were Dr John Merory, Mr Graeme Brazenor, and Dr Paul Verrills but we shall say something first about the evidence of Dr Gaskell.

111 Three reports from Dr Gaskell were tendered in evidence and she was called to give oral evidence both as to the interpretation of the medical records of St Helena's at which the applicant has been treated since her childhood, and as to the treatment of the applicant between June 2004 and May 2012.

112 Dr Gaskell's reports indicate that she accepted the history given to her by the applicant concerning the onset of ongoing back pain immediately after the motor car accident in November 1995. She also noted that following the accident the applicant became dependent upon narcotic analgesics.

113 In her first report of 21 October 2007, Dr Gaskell summarised the applicant's treatment history under her care as follows:

I began seeing Dianne regularly in June 2004. She had been seeing my colleague, Dr Grant Barham, since the retirement of Ian MacPherson. Dianne still complained of constant back and right knee pain which was not well controlled despite being on significantly high doses of anamorph and MS contin (both morphine-based narcotics). My concerns at this time were multi-factorial. I was concerned about her ongoing knee and back pain, her significant dependence on narcotics, a probable depressive illness, anxiety, chronic fatigue syndrome and her ongoing social and financial issues.

Over the past few years, Dianne has successfully significantly reduced the medications through a slow withdrawal process, however the pain and other issues are still very much an issue. I have sent Dianne to several specialists including Dr John Merory (neurologist), Mr Graeme Brazenor (orthopedic surgeon), Mr Jim Kiellerup (orthopedic surgeon) and most recently Dr Paul Verrills (metrospinal clinic). Dianne is currently under the treatment of Dr Verrills and this appears to be having some positive benefits.

From the medical documentation it does appear that there were no significant back or knee problems prior to the motor car accident in 1997. Following this accident, Dianne has suffered significant pain - which has contributed to a depressive and anxiety condition, dependence on narcotic analgesics and numerous other medical issues from this. Dianne has found it extremely difficult to find adequate employment and therefore suffered considerable financial issues. The main contributing factor, aside from the motor vehicle accident, is the chronic fatigue syndrome, which was diagnosed at the age of 19 years. This may also impact on mood and motivation.

114 A report of Dr Gaskell of 26 October 2009 records that the applicant continued to suffer daily back and knee pain, had ongoing issues with chronic lethargy and had significant anxiety issues related to her pain.

115 A further report of Dr Gaskell of 12 April 2010 recorded that the applicant remained in chronic pain with back and knee pain constituting the worst problems.

116 Dr Merory, a neurologist, saw the applicant in September and November 2005 and obtained a history of severe lower back pain occurring within two days of the car accident. He considered that the worsening of the applicant's lumbar disc disease 'could be' attributable to the trauma of the accident.

117 The applicant was referred to Mr Brazenor, a neurosurgeon, in early 2006. In a report dated 27 March 2006, Mr Brazenor noted that the applicant had 'many health problems, including chronic fatigue syndrome, narcotic dependency, obesity, cigarette smoking and balance problems.' He regarded her complaints of severe lower back pain as inconsistent with the way the applicant sat during the consultation and little material restriction on straight leg raising. An MRI obtained on 14 February 2006 showed severe disc degeneration at L5/S1 but no other abnormality.

118 Mr Brazenor (who was the third neurosurgeon to see the applicant in a treating capacity) weighed Ms Davies at 109 kilograms and set out some 'home truths'. He gave her a 'terribly gentle walking regimen'. His opinion was that the applicant had psychological acopia and that there was very little wrong in the way of physical disability. He specifically commented that he would not himself prescribe narcotics for her even if he was asked.

119 It can be seen that Mr Brazenor's opinion was entirely consistent with that of Professor Rosenfeld (also a neurosurgeon) and Dr Lloyd (a neuropsychiatrist).

120 It will be recalled that no evidence was obtained from Mr Thien, the first neurosurgeon to treat the applicant.

121 Dr Verrills, a pain medicine specialist, first saw the applicant on 27 June 2007. The applicant identified two areas of severe disabling pain, namely the left knee and the lower back. Dr Verrills reviewed the MRI from February 2006 and noted 'the L4 disc and above are pristine. The applicant had a capacious central canal and it is unlikely she will ever have true sciatica.' She had moderate modic type 2 changes at L5/S1. Dr Verrills thought the mechanism of injury involved in the motor car accident could clearly have caused sacroiliac joint pain and he recommended a ligament injection in the sacroiliac joint under CT guidance by way of investigation.

122 By 19 December 2007, Dr Verrills reported that further treatment had not helped, including sacroiliac joint blocks and caudal epidurals. In his view, the applicant continued to have significant neuropathic pain,[53] the majority of which was in her leg and lower back. On 8 February 2008, Dr Verrills reported to the applicant's solicitors that the provisional diagnosis for the applicant's lower back pain was discogenic pain. The odds of that being correct, he thought, were increased by the MRI findings of significant modic changes at L5/S1 as well as the prevalence of the condition in her age group. On 28 July 2011, Dr Verrills expressed the view, in answer to a solicitor's enquiry, that the applicant's back pain was a direct consequence of the motor car accident in 1995. It seems that this conclusion derives from the history provided by the applicant. Dr Verrills's report records that, at the time of the accident, the applicant developed severe disabling pain in two areas including the lower back.

123 For completeness, we add that the applicant saw Dr Leonard Rose, a pain management specialist, of the Melbourne Pain Clinic on and after 1 June 2009. Dr Rose monitored and attempted to manage her medications. Dr Rose recommended an MRI and arthroscopy for the left knee and, insofar as the lower back was concerned, expressed the view that the applicant had some disc pathology 'which ideally should have been investigated by now by a neurosurgeon with a view to possible spinal stabilisation'. The applicant had in fact previously been referred to Mr Thien, Dr Kiers, Professor Rosenfeld, Dr Lloyd, Dr Merory and Dr Brazenor, ie three neurosurgeons, a neuropsychiatrist and two neurologists. As the trial judge observed,[54] despite obtaining and examining imaging of the applicant's lower back, the specialists she had seen had not considered spinal intervention to be appropriate.

124 The applicant also saw a series of medical specialists for medico-legal purposes. Each of these expressed opinions based in part on a history of the onset and continuing progress of lower back pain commencing immediately after the motor car accident. The opinions were further based on examinations made many years after the motor car accident and which examinations were made in circumstances where the applicant had undergone marked physical change in the interim. The report of Dr Kevin Fraser records that, by the time the applicant saw him in January 2016, her weight was 118 kilograms, 45 kilograms more than her weight at the date of the accident.

125 The opinions obtained were of a mixed nature and could not be said to compel a conclusion in favour of the applicant's case. The most relevant with respect to the complaint of lower back pain were those of Mr David Brownbill, Dr Robert Hjorth, Dr Fraser, and Mr Russell Miller.

126 Mr Brownbill, a neurosurgeon who saw the applicant on two occasions for the purpose of providing a medico-legal report, was not called to give evidence on her behalf. He first saw the applicant in August 2012 and then again in May 2013. On the basis of a history that lower back pain commenced soon after the accident and had been continuing since, Mr Brownbill considered the accident had most probably aggravated pre-existing asymptomatic degenerative changes at L5/S1. In his second report, he stated that his examination showed a restriction of thoraco-lumbar spinal movements without any objective neurological abnormality of the lower limbs. There were no signs of radiculopathy. He considered that the applicant's demeanour and responses indicated a marked non-organic component with some abnormal illness behaviour.

127 Dr Hjorth, a neurologist, saw Ms Davies on one occasion on 23 October 2012. He was called to give evidence by the applicant. He described the applicant's case as 'extraordinarily difficult' and 'incredibly complex'. He considered her major problem was her left knee although lower back pain was a part of the problem. His evidence focussed principally upon the left knee injury. In his opinion, the applicant had a significant psychiatric problem. He could not find any evidence of a full blown nerve root lesion emerging from her lower back, and said that the absence of sensory loss suggested that deep tendon reflexes were preserved. He thought any nerve involvement was secondary to chronic regional pain syndrome.

128 Dr Fraser, a rheumatologist, saw the applicant for medico-legal purposes in January 2016. He was called to give evidence by the respondent. He took a history from the applicant which included increased difficulty with her back and left knee pain due to prolonged sitting at work after the accident, before eventually stopping work in June 1996. The main presenting problems at the time included ongoing lower back pain. Dr Fraser did not have relevant medical imaging available to him. But he did have the reports of the outcomes of MRI and x-ray investigations of the lumbar spine at various points in time. On examination, he noted an inconsistency between the applicant's limited ability in respect of straight leg raising contrasted with the fact that she could sit upright on the examination couch without difficulty.

129 In Dr Fraser's opinion, the applicant probably sustained minor soft tissue injuries in the areas diagnosed by her treating doctors at the time of the accident but those injuries probably resolved within a few months of the accident.

130 In Dr Fraser's opinion the findings made by way of medical imaging were consistent with degenerative changes, and consistent with age and constitutional factors including obesity. There had been a considerable period of time for age-related degenerative changes to develop since the accident in a period during which the applicant had gained a considerable amount of weight. In his view, if the accident had caused a material aggravation of degeneration at the lumbo-sacral junction then he would have expected far more than minor age-related degenerative changes after 20 years.

131 He incidentally accepted that if the applicant developed back pain and stiffness immediately after the accident then it was probably related to the accident although it would not indicate whether the injury was a soft tissue injury or something of a more structural nature. He further accepted that it was possible that the accident could have caused temporary symptomatic aggravation of pre-existing degenerative changes.

132 In Dr Fraser's view, the applicant's symptoms had become more and more florid and this supported the view that she was suffering from psychogenic pain.

133 Mr Miller, an orthopaedic surgeon, saw the applicant for medico-legal purposes on two occasions and produced reports dated 15 July 2013 and 21 January 2016. A third report dated 29 January 2016 was made after further radiological reports were sent to Mr Miller for comment.

134 Mr Miller was instructed that, after the accident in 1995, the applicant continued working with significant difficulties until about six or seven months later when she ceased to work due to ongoing problems with her back and left knee. He was also told that the applicant had once had chronic fatigue syndrome in the distant past but that she had fully recovered from it. On that basis, he took the view that the chronic fatigue syndrome was not relevant to his assessment.

135 After reviewing the relevant diagnostic investigations and making his own clinical examination, Mr Miller described the applicant's conditions as including a musculo-ligamentous strain to the lumbar spine, aggravation of degenerative disease in the lumbar spine and probable symptomatic disc pathology and other pathology at the lower lumbar levels L4/5 and L5/S1. He considered there was radiation to both extremities, particularly the lower left extremity but no other evidence of radiculopathy or neurological deficit. In his 2013 report, he accepted that there was a causal link between the injury to applicant's lumbar spine and the motor car accident:

On the information available to me this lady was functioning quite well until the motor vehicle accident as outlined above. I believe she has suffered organic injury to the lumbar spine, left knee and developed secondary issues with chronic pain. I believe her current clinical status reflects accident related effects. I acknowledge the difficulties in making such a determination.

136 As the trial judge observed,[55] the 'difficulties' Mr Miller acknowledged may be understood to include the distance in years between his examinations and the accident, his reliance upon the applicant's account to him of her history and the general complexity of her case including the number of pathologies operating concurrently.

137 In cross-examination, Mr Miller accepted that the level of degeneration shown by the MRI findings in relation to the lumbar spine may or may not be symptomatic of pain. A large proportion of the population with changes of this kind have only some minor symptoms of pain.

138 Much of Mr Miller's evidence related to the injury to the left knee to which we shall shortly come.

139 When the evidence concerning treatment and medical opinion in the last decade is added to the evidence concerning the first decade after the motor car accident, it does not change our view that the trial judge did other than carefully and properly assess the probative force of the evidence going to the question of causal link between the motor car accident and the applicant's current back condition. In our view, the grounds of appeal going to the judge's decision with respect to the alleged lower back injury must fail.

140 The applicant gave evidence that she had suffered pain in her left knee since soon after it was injured in the motor car accident. She said that 'nerve pain' in the left knee began within a matter of days after the accident. It was a pain which started under the knee cap almost like a tickling sensation and then it built up and was almost like electricity and was 'horrible'.

141 In addition, about 5 to 7 years after the accident she commenced to feel a crunching sensation in her knee with aches and pains which came from her hip into her leg. Then in about 2011 she commenced to feel hypersensitivity in her leg.

142 The applicant said that after returning to work following the motor car accident it became increasingly difficult to sit at her desk for long periods because of lower back pain. She said that she attended Dr McPherson and complained of back, neck and left knee pain, and that the pain in her left knee became more intense. The applicant described nerve pain in her left knee which only seemed to happen at night, and would disturb her sleep and make it difficult to go to work. She said that she last worked on 24 June 1996 and at that time her lower back and left knee were causing her the most difficulty in terms of pain remaining at work. The applicant said the knee pain started within days of the accident. The applicant's mother gave evidence that within a few days of the accident her daughter came into her bedroom at night and woke her and her husband complaining of pain in her left knee. The trial judge concluded the applicant had no reliable recollection of her real symptoms at specific times and was prepared to say what was most helpful to her claim.

143 The trial judge did not accept the applicant's evidence of knee pain in the period from the motor car accident to September 1996, and found that the applicant's mother was mistaken when she said the incident of her daughter waking her with knee pain occurred within days of the accident.

144 It will be recalled that in his final conclusions,[56] the trial judge commenced his conclusions concerning the applicant's left knee injury by recording that he had reached much the same conclusions with respect to that alleged injury as with respect to the alleged injury to the lower back.

145 In his Honour's view, it was of primary significance that he was not persuaded that the applicant expressed any left knee symptoms of significance until she reported some symptoms to Dr McPherson in late September 1996. Further, it was only after the applicant's WorkCover claim settled that her complaints of lower back pain and complaints of left knee pain received increasing prominence.

146 Then over many years, investigations failed to find any obvious explanation for the applicant's knee symptoms and in turn they became multi-faceted.

I am not persuaded that she experienced any left knee symptoms of any note beyond some transient bruising immediately after the accident until she reported some symptoms to Dr McPherson 10 months later in late September 1996. Again, I draw the same inference that Dr Rose and Ms Moore's evidence would not have assisted her case in this respect. When Ms Davies did report such symptoms, it was in the midst of the re-agitation of her CFS-type symptoms sparked by her work stress trauma. That stress was accompanied by quite pronounced physical symptoms of a range of types. By May 1997, Dr McPherson made no mention of her left knee complaint in connection with her motor accident. That complaint reappears when the focus goes off her work stress incident, after her WorkCover claim is settled. Thereafter, along with her low back pain, her left knee complaint pain assumes increasing prominence.

...

It is most likely that Ms Davies developed symptoms of chondromalacia of the patella together with other arthritic changes in her knee. I have already stated and explained my views of Mr Miller's opinion that the pattern of osteoarthritic change, shown on arthroscopic investigation, made it more probable that a trauma initiated Ms Davies' left knee symptoms.[57] I need not repeat them. She clearly has some constitutional predisposition to knee joint arthritic change. Her significant weight no doubt contributed to the progression of her left knee pathology, and the fact that she also developed arthritic change in her right knee tends to make more likely the role of constitutional factors in her left knee arthritic change.[58] I am far from persuaded that but for the accident she would not have suffered this condition or her symptoms at about the same time and to about the same degree as she has in fact suffered them. So, I do not find that the motor vehicle accident caused any injury to her left knee or her right knee.[59]

148 It may be accepted that his Honour was entitled to reject the applicant as an accurate historian with respect to her knee symptoms and that her current complaints are embellished with symptoms which do not have an objective basis.

149 It may also be accepted that there was little or no record of complaint concerning pain in the left knee in the initial period following the accident.

150 Further, there was evidence supporting the conclusion that the applicant had a constitutional predisposition to arthritic change in the knee and had suffered a relatively massive weight gain over the years between the accident and trial.

151 Nevertheless, there were a series of features of the evidence which stood in sharp contradistinction to the evidence with respect to the applicant's lower back:

(a) evidence of direct impact to the knees causing injury to them at the time of the accident;

(b) evidence of complaint of pain sufficient to justify medical imaging of the left knee within 10 months of the motor car accident;

(c) arthroscopic investigation of the left knee providing objective evidence of the condition of the knee consistent with traumatic damage;

(d) expert opinion supporting the view that the combination of the recorded mechanism of injury, the emergence of ongoing pain in the left knee, the findings on arthroscopic investigation, and the findings on clinical examination at the time of the formation of expert opinion, support the conclusion that the applicant suffered injury to her left knee in the motor car accident which has caused material deterioration of the left knee joint;

(e) expert opinion that delay of 10 months in the emergence of significant symptoms in the left knee is consistent with injury caused by the motor car accident.

152 The expert opinion upon which the applicant's case as to injury to the left knee ultimately rested was that of two orthopaedic surgeons, Mr Iain McLean and Mr Russell Miller.

153 Following examination on 24 May 2012, Mr McLean diagnosed that the applicant suffered traumatic chondromalacia to the patella and medial compartment of the left knee, concluded the changes were likely to progress with time at a rate difficult to determine, and that there was a definite increased risk that the applicant would require left total knee replacement in the more distant future. Mr Miller, assessed the applicant on 11 July 2013 and 31 December 2015 and diagnosed chondro pathology to the internal surfaces of the knee, particularly the patellofemoral area, which had progressed between his two assessments and was likely to lead to the requirement for total knee replacement.

154 In order to place these opinions in context and evaluate their persuasiveness, we shall deal in turn with each of a series of factors bearing on the applicant's case.

The circumstantial evidence relating to 1995 to 1996

155 First, there is nothing to suggest that the applicant suffered any permanent injury to or condition affecting her left knee at any time before the motor car accident on 22 November 1995. Nor was there identified any trauma to the knee which occurred before or after the accident and which was satisfactorily implicated by evidence as a possible cause of the current condition of the knee. Dr Gaskell gave evidence of two recorded occasions in 2007 on which the applicant suffered falls but in each case there is no record that the falls caused trauma to the knee. The applicant agreed in cross-examination that she fell on a station ramp in 1988 but said that on that occasion she struck her right knee. In 1990, she was a passenger in a car that rolled and was left with general aches and pains which resolved. In 2007, she suffered jarring when she fell first in the shower and then on some stairs. In 2009, she slipped on some steps and jarred her left knee.

156 Secondly, there is no real dispute that the applicant did suffer an impact injury to her knees in the motor car accident. She described the way this occurred in circumstantial terms and the clinical notes of the general practitioner made on 23 November 1995, the day after the accident, contained the note 'Hit both knees'. A TAC claim form was also completed by the applicant and dated 5 December 1995. Under the heading 'Description of injuries sustained', the applicant wrote, amongst other things, 'bruising to legs'.

157 Thirdly, as the trial judge found, there is a genuine doubt as to the accuracy of the history the applicant gave of her symptoms during the period of 10 months following the accident, because that account is not corroborated by contemporaneous records.

158 The handwritten notes from St Helena's were in evidence. There were five further attendances after 23 November 1995 in the period to April 1996, all of which appear to relate to the accident and record complaints including to the neck, dorsal spine, shoulders and left elbow. Entries in the period May 1996 to early September 1996 are directed to issues apparently unrelated to the motor car accident including complaints of headaches and migraines, workplace stress, referral to psychologist Mr Wilks, and viral illness. There is no mention of the left leg or knee in the clinical notes after 23 November 1995 until 27 September 1996.

159 A number of medical certificates were in evidence dating from 23 November 1995 and continuing into 1996. There is no reference to the left knee in any of those medical certificates.

160 As we have already noted, there were also a number of medical reports and other documents prepared in the period to September 1996, which contained histories or information from the applicant in relation to her state of health and medical conditions from which she suffered. These include the statement taken by WorkCover investigator, Mr Topp, dated 27 June 1996; the medical reports of Dr McPherson of 15 August 1996 relating to the applicant's WorkCover stress claim; Mr Robert Wilks, the applicant's treating clinical psychologist in relation to the WorkCover stress claim, dated 19 August 1996; Dr Shan, psychiatrist, to the WorkCover insurer relating to the WorkCover claim dated 22 August 1996; and general surgeon, Mr Brearley, to the TAC in relation to the motor car accident dated 13 September 1996. There is no mention of any complaint or injury to the left knee in any of these documents.

161 Fourthly, at the end of September 1996, the clinical notes do support the inference that the applicant was suffering from pain in her left knee. A clinical note of Dr McPherson of 27 September 1996 records:

Not been sleeping well at night due to discomfort left elbow and left leg.

The anti-inflammatory Naprosyn was prescribed. In the next entry in early October 1996 there is reference to the left knee. Then, on 5 October 1996, the notes record:

162 We would draw the inference that no x-ray would have been requested unless the applicant made complaints of significant pain.

163 Later the same month a note records no abnormality was reported on x-ray but a diagnosis of osteochondritis dissecans[60] was noted.

The evidence as to the applicant's treatment between 1997 and 2005

164 Fifthly, from then on there are intermittent references in the clinical notes to the left knee, including the following entries:

(a) 3 July 1997, which lists three issues, back pain, left leg and left elbow with an arrow to 'Cedar Court', which is a rehabilitation facility, and a further arrow to 'TAC' and 'MVA 23-11-1995';

Not sleeping well at night (chiefly knee discomfort was only at night and now is during the day).

Left knee - pain++ at rest. Not a problem walk.

Has pain still lower back LBP ) MCA

L knee and elbow L knee ) 19...

Headache

MCA 1995 -...?

Does clairvoyant readings

Knee pain appears in the notes on 2 October 1999 and in October 2000, when it is recorded as the main problem.

Now very sore left knee.

MVA - 7 years ago.

(e) references to left knee pain in notes of 19 February 2002, 23 March 2002, April 2002, February 2003, March 2003 when the condition is recorded as 'left chronic knee pain', June 2003, September 2003, December 2003, April 2004, August 2004 and May 2005;

165 Sixthly, the report of Dr McPherson of 19 May 1997 to the TAC identified the injuries suffered in the motor car accident as soft tissue injuries and noted as the first specific area of discomfort 'both knees after collision with the dashboard'. In describing the applicant's residual disabilities, however, he made no reference to her knees.

166 Seventhly, the specialist medical practitioners whom the applicant saw between 1998 and 2004 for the purposes of treatment did not diagnose traumatic injury to her left knee. It will be recalled that the opinions of Mr Thien and Dr Kiers concerning the lower back pointed persuasively to the absence of any nerve root impairment in the lumbo-sacral spine causing symptoms in the left leg. Professor Rosenfeld took a history in which the applicant described intense pain in the left knee commencing within two months after the accident and observed that the applicant was walking with a slight limp. He formed the view that most of the applicant's problems were psychological or psychiatrically based.

167 Dr Lloyd took a history of left-sided knee pain which would often be worse at night but formed the view that the applicant was presenting with a chronic pain syndrome which might well have elements of somatoform pain disorder. Dr Stewart concluded that the applicant suffered from chronic fatigue and a chronic pain syndrome with little to suggest significant pathology.

168 Dr Vivian recommended cognitive behavioural therapy and it is apparent that he also did not accept that the applicant suffered from significant degeneration of the left knee.

169 As we have previously noted, the trial judge concluded that the report of Professor Rosenfeld marked a material change in the applicant's injury narrative as given to her doctors including the assertion that she had suffered intense left knee pain relatively shortly following the accident and the claim that she ceased working for Centari as a consequence of absences due to her motor car accident injuries.

170 Eighthly, Dr McPherson's report of 11 November 1998 describes the applicant's condition at that time without reference to discomfort or pain in the left knee. On the other hand, he concludes his report of 18 July 2007 by saying that at the time of his departure from medical practice (which appears to have occurred in 2002), the applicant had developed left knee pain as well as persistent sacroiliac and left leg pain of a sciatic nature.

171 Ninthly, there is evidence after 2004 of a variety of opinions on the part of specialist medical practitioners concerning the left knee and the undertaking of further investigations of the knee in 2010.

172 Mr Jim Kiellerup, orthopaedic surgeon, saw the applicant in July 2004 and expressed the initial view that it was unlikely that the applicant had a major mechanical problem with her left knee. In May 2005, he reported that he reviewed the applicant. It was 10 months since he had last seen her and seven months since an MRI scan which he had obtained of the left knee. The MRI scan showed a small area of irregularity on the surface of the patella on the lateral side. In his view, the applicant did not require surgery to the knee.

173 As we have already noted, Mr Brazenor saw the applicant on 27 March 2006 and found that on examination of both knees they were completely normal. He noted that nothing he did to either of the applicant's knees caused her any pain at all. In his view the applicant's problems were psychological.

174 On the other hand, Dr Leonard Rose saw the applicant on 1 June 2009 at the Melbourne Pain Management Clinic and formed the view that the applicant had previously undiagnosed chondromalacia patellae in the left knee which needed investigation with MRI and arthroscopic surgery. The results of this investigation are significant in the assessment of the evidence as a whole relating to the left knee.

175 Initially, Mr Roger Westh, an orthopaedic surgeon, saw the applicant at the Austin Hospital on 1 July 2010 and found on examination that there was no effusion in the left knee. There was slight patellofemoral crepitus with no maltracking. There was possibly some light laxity although this was difficult to assess. He arranged for the applicant to have an up to date MRI scan.

176 Austin Radiology reported the results of the MRI scan of the knee on 13 August 2010:

REPORT:

Multiplanal multisequence MRI of the left knee has been performed. No prior imaging is available for correlation.

A moderate sized joint effusion is present.

The anterior and posterior cruciate ligaments are intact.

An oblique tear affects the posterior horn and body of the medial meniscus. This extends to the inferior articular surface.

The lateral meniscus has a normal appearance.

The medial and lateral collateral ligaments outline normally.

The iliotibial band and patellar tendon demonstrate normal appearances.

A focal area of marrow signal change is identified in the posterior tibial diaphysis. This measures 10 x 7 x 8 mm. It is of intermediate to low signal on PD and mild high signal on T2-weighted imaging. It is located adjacent to the posterior cortex without evidence of direct involvement. It most likely represents a benign fibro-osseous lesion.

COMMENT:

Moderate sized joint effusion. No evidence of meniscal or ligamentous injury.

177 Mr Andrew Hardidge, the Director of Orthopaedic Surgery at Austin Health, further reported on 16 December 2010 following a left knee arthoroscopy:

I reviewed Ms Davies in the Orthopaedic Outpatient Clinic today.

As you are aware, she is now approximately six weeks after her left knee arthroscopy performed by Mr Vincent Yap and Mr Matt Alexander. She was found to have tri-compartmental osteoarthritis, particularly worse on the patellofemoral and medial articulations. These were grade II - III patella, grade II trochlear, grade III medial femoral condyle, grade I - II medial tibial plateau, grade II lateral femoral condyle, and grade I - II lateral tibial plateau. The medial lateral menisci were satisfactory.

On review today, Ms Davies has ongoing symptoms related to that knee, and I feel that she has underlying arthritis.

We discussed in detail the options in treatment. At this stage, she really does not appear to be radiographically or arthroscopically bad enough for a total knee replacement and certainly, her young age is a concern. We have discussed loss of weight and exercise, as well as medication such as glucosamine, chondroitin sulfate and fish oil.

I have planned for her to come back in six months' time to see how she is going with this conservative treatment.

The medico-legal opinion evidence concerning the left knee

178 Tenthly, there were a series of medico-legal opinions expressed by doctors who both reported and gave evidence at trial. These were Mr Iain McLean, orthopaedic surgeon; Dr Robert Hjorth, neurologist; Mr Russell Miller, orthopaedic surgeon; and Dr Kevin Fraser, rheumatologist. Because of the significance of two of these opinions to the applicant's case it is necessary to say something about these opinions in detail.

179 Mr McLean conducted an examination of the applicant on 24 May 2012 at the request of her solicitors. Mr McLean gave oral evidence at the trial and his report of 28 May 2012 was tendered. In his report, Mr McLean recorded a history from the applicant that her left knee struck the air-conditioning unit in her vehicle at the time of the accident, that she was then aware of pain including to her left knee, and that the following day there was bruising and swelling to the anterior aspect of the left knee. Mr McLean then recorded:

Diane then states she was aware of a 'tingling sensation' to the left knee that then built up to become a 'horrible nerve pain' deep to the retropatellar aspect of her left knee. When this occurred she would become agitated and was unable to sleep. These pains were occurring more at night.

It is not clear from Mr McLean's report when he understood these symptoms to have developed. Later in his report, Mr McLean recorded a history that in the five or six years prior to his examination, the applicant's right knee had become progressively symptomatic, that the right knee was not injured in the motor car accident, but that the applicant had been 'protective relative to her left knee and her back'. Mr McLean noted that the applicant's mother suffered significant primary osteoarthritis affecting her fingers and had undergone bilateral total knee replacements and a hip replacement.

180 Mr McLean diagnosed 'traumatic chondromalacia to patella and medial compartment left knee', concluding that the prognosis was for progressive degenerative change to the patellofemoral and medial compartments, that the applicant's significant weight problem 'will contribute to the constitutional component of the degenerative change', and that there was definitely increased risk in the distant future of the applicant requiring left total knee replacement. Mr McLean concluded that the right knee symptoms were 'suggestive of early patellofemoral and medial compartment chondral pathology' which may have been aggravated by the lower back and left knee disabilities, but that a major component of the right knee condition was constitutional.

181 In his oral evidence Mr McLean was first taken to the applicant's evidence describing the accident and her immediate symptoms. He said:

Yes, it is consistent with the force and the direct blow to the front of the knee.

Mr McLean was also taken to the evidence of the applicant and her mother of a history of pain and symptoms affecting the left knee dating from the motor car accident (which the trial judge did not accept) and said that that was consistent with what he assumed in preparation of his report.

182 Referring to the grading of damage to the articular cartilage of the knee, Mr McLean said zero was normal and grade IV is areas of exposed bone. The grade II to III found on arthroscopy is moderate damage to the articular surface which would be called a raggy knee. Asked about the report of the deep vertical fissure in the trochlea, Mr McLean said:

Well, the - the knee cap is just part of your quadriceps muscle. And so it's put in there to act as a pulley or a lever, and it runs up and down, in - like in the groove, as it's called the trochlear groove. And so when you strike the front of your knee, you're damaging two surfaces, back of your kneecap, and then where - where it hits, on the other surface of the femur, so that's the trochlea.

Asked about the relationship between the motor car accident and the injuries, Mr McLean said:

because I've made the diagnosis traumatic in relation to the patella and medial compartment [of] left knee, so I'm referring to trauma.

Mr McLean said in his view there was a relationship between the accident and the injuries, and continued:

The fact that she hadn't had symptoms before it developed the pain and the things that are seen on MRI and at arthroscopy are consistent with a progressive breakdown in related symptoms over time.

...

The conclusion - the only conclusions we can make is the fact that she's had a - described significant trauma, has had pain from the time of that incident that she hadn't beforehand. And we are then seeing some years later a breakdown on surfaces that we would expect from such a trauma.

183 In cross-examination Mr McLean confirmed that he took into account the mechanism of the accident when assessing the causal relationship between the accident and the left knee. It was put to Mr McLean that many members of the public would have the sort of internal deterioration as seen in the applicant's left knee. Mr McLean disagreed, and said not at age 41 years. Mr McLean was referred to the history he obtained of the applicant's mother's hip and knee replacements and was asked:

Q: And that predisposition to osteoarthritis could well be the cause of the osteoarthritis that one sees on the pathology and arthroscopy?

A: I think that's taking it to an extreme. Expecting again, at her age group, even with a predisposition at that stage to have those changes to the knee is unlikely without some other initiating cause along the way.

Q: But you can't exclude genetics as a potential at least contributor, can you?

A: As a contributor?

Q: Yes?

A: So if we have something that initiates it, it may then become worse quicker if we've got a predisposition.

184 Mr McLean said the right knee condition was not directly related to the car accident, but the additional loading onto the right knee as a consequence of the left knee injury might produce symptoms earlier than otherwise.

185 Mr McLean was then asked to consider the possibility of a gap between the motor car accident and the development of knee pain:

Q: If the court was to find that in fact the first report to a doctor about knee pain was some 11 months later in October 1996 you'd have to agree wouldn't you that that would diminish your opinion as to the causal link between the accident and the current condition?

A: That may throw some doubts but again I'd have to - we're always dependent on sort of the honesty and recollection of the people in front of us, yeah.

Q: Of course, so if the evidence were that there was no report to a doctor one would expect firstly that the sort of pain (Ms Davies) is describing to you are things that would be described to her treating doctors from the time of the accident?

A: Well I'm seeing her a number of years later so the symptoms she's describing to me are not going to be the same as they were initially.

Q: Would it doctor, if a finding of fact was made by the court that there was a gap of months, [counsel for the defendant] put up to 11 months, from the accident to the onset of sort of serious symptoms in relation to the knee, would that cause you any difficulty in your causation views?

A: I have to qualify it I guess. The answer would be raising the further queries, yes. But it's amazing how many people put up with things for - and go for alternative types of symptomatic relief until they find it doesn't go away and then they go to see their GP.

Q: You'd have to accept wouldn't you it's far less likely that there's a causal link between the accident and the plaintiff's current and ongoing knee condition if there hadn't been a report to a doctor for that approximately 11 month period?

A: It will reduce.

Q: I'm sorry?

A: It'll reduce the -

I guess sometimes when we - if in the car accidents, and I guess that's what we're talking about - talking about, and we - we get a blow to the knee and we damage the cushioning of the - of the joint, it depends on whether that damage to the cushioning actually causes a split or a breakdown the - immediately or it just bruises and damages the - what's called the basal layer. If we damage the basal layer then we may get over our initial pain, irritation, bruising and things, but the cushioning breaks down at a sooner stage and then we go and seek the doctor's opinion. So we are - we are often seeing people following that at a period between three, twelve months or so following an injury from direct blow.

187 Mr McLean was taken to the clinical note entry from St Helena's of 23 November 1995 which reads, 'hit both knees', and he said that was a history of trauma to the knees from which the applicant developed bruising and swelling. Mr McLean was also taken to the clinical records of October 1996, and he said that you would only get an x-ray done if there were some symptoms in the knee.

188 As we have said, Dr Hjorth is a neurologist who saw the applicant on 23 October 2012 at the request of her solicitors. A report made at that time was tendered in evidence and he also gave oral evidence. When the applicant saw Dr Hjorth she gave a history of knee pain becoming severe a few days after the accident. He noted her present problems at that time as including pain in the left knee which 'was not normal pain'. He further described the pain as follows:

A horrible pain that gets worse and worse once it comes. She has it most of the time. It is rare to have moments where it's not there. This is the reason that she scratches and cuts the adjoining skin and sprays it. None of the medicines seem to help much.

189 Dr Hjorth expressed the following relevant opinions:

Impression

1. It goes without saying that cases like this are extraordinarily difficult.

1. Even when you know what the cause of the pain is, it can be quite hard to manage but at this stage we cannot be sure of the origin of the pain.
2. One of issues here is whether or not she has organic pain. The differential diagnosis will include some kind of psychogenic pain or even malingering. I don't think either of these diagnoses are likely. One of the reasons I say this is that the overall pattern of pain has remained remarkably constant over 17 years. With the psychogenic pain cases that I have seen, the pain has moved around and a lot of other symptoms have developed and the whole thing has become more and more florid. I note that other doctors have diagnosed chondromalacia of the patella and that maybe part of the cause too.
3. When I saw Dianne the skin over the left knee was colder than the right and I think that she qualifies as having Reflex Sympathetic Dystrophy (Complex Regional Pain Syndrome.) The features of this condition are that the pain often bears a poor relationship to the severity of the original injury and the pain can get progressively worse. Also there is the development of signs of sympathetic over-activity (such as the coldness.)
4. Having said that I consider this problem is organic, I have to say that I am unable to suggest a treatment that is likely to help. It's possible that spinal cord stimulation might ease the distress she has but this is a fairly big procedure and is expensive and has side effects and the 'cure rate' is not all that high.

1. There is a significant psychiatric problem here and I note that she has had treatment for depression and she is currently damaging herself (self-mutilation.)
2. In your letter you ask for advice on the question of the nerve involvement. I could not find any evidence of a full blown nerve root lesion in that there is no sensory loss that was particularly suggestive of that and the deep tendon reflexes were preserved. I think any nerve involvement must be secondary to the Reflex Sympathetic Dystrophy and you can on occasions see this.

190 In oral evidence, Mr Hjorth elaborated these opinions. In cross-examination, he acknowledged that he had not seen any reports with respect to x-rays or other medical imaging or the nerve conduction study relating to the applicant's left knee. He also had not seen the arthroscopy report. He accepted that the reports of these investigations did not support a physical basis for the complaints the applicant made of hypersensitivity of skin in the area of the left knee. But he maintained that having regard to a finding of skin temperature differential over the knee which he made on clinical examination coupled with the history given to him by the applicant, his view was that the applicant suffered from complex regional plain syndrome ('CRPS'). He identified that continuity of complaint with respect to the distribution of such pain was significant.

191 The essence of CRPS is pain with no other explanation and some evidence of sympathetic over-activity.

192 Cases like this are extremely difficult to accurately diagnose because CRPS is very complex, very hard to understand and hard to confirm by way of objective evidence.

193 CRPS may develop without any known injury to the patient.

194 Changes in the patient's complaints and, in particular, a progression towards more florid complaints may support the view that the pain is psychogenic.

195 Ultimately the applicant puts her case on appeal with respect to her left knee injury squarely on the basis of the orthopaedic opinion favouring the conclusion that she suffered direct injury to the knee joint and not upon the evidence of Dr Hjorth. In essence, she submits that the trial judge was wrong to reject the orthopaedic opinion.

196 Mr Miller assessed the applicant on 11 July 2013 and 31 December 2015 and provided two medico-legal reports and a short addendum report, all of which were tendered in evidence. In his first report, Mr Miller expressed the opinion that the applicant suffered a significant injury to the left knee with significant ongoing chondro pathology. He thought the prognosis for the left knee was fair to poor, and that significant weight gain complicated management of the applicant's condition. Under a heading 'Relationship to accident' Mr Miller said:

On the information available to me this lady was functioning quite well until the motor vehicle accident as outlined above. I believe she has suffered organic injury to the lumbar spine, left knee and developed secondary issues with chronic pain. I believe her current clinical status reflects accident related effects. I acknowledge the difficulties in making such a determination.

Mr Miller considered the evolving condition of the left knee would lead to the probable requirement for a total knee replacement. At the time of his second assessment, Mr Miller noted there had been significant deterioration in the condition of the left knee. In his view, the prognosis was then poor.

197 In examination in chief, Mr Miller was taken to the findings on arthroscopy. He described how the patella runs up and down the trochlear groove and said of the reported deep vertical fissure in the trochlear groove:

Well it adds some weight to there being a traumatic event in the past. It adds some weight for that, because that's not the typical feature of diffuse chondral pathology throughout the joint.

That court day ended with Mr Miller still in examination-in-chief. When he returned a week later to complete his evidence Mr Miller said the pattern of damage to the left knee was not typical of osteoarthritis, but is a pattern 'suggestive of there being a significant traumatic component, particularly to the kneecap area and the trochlear where there's the fissure'.

198 Under cross-examination, Mr Miller said the condition of chondromalacia patellae was seen very frequently in females including those of the age of the applicant, but the feature in the applicant's case of the damage to the trochlear groove excludes the condition from being called chondromalacia patellae. Mr Miller disagreed that what was seen was tricompartmental degeneration, adding that the changes in the medial compartment of the left knee were not typical of osteoarthritis particularly because the meniscus was normal. He said it was a possibility that the changes were of degenerative arthritis, but it was not the typical pattern and it was an uncommon pattern, and he would be surprised if a practitioner would say it was the pattern of degenerative arthritis. Mr Miller said the condition of the applicant's left knee was predominantly patellofemoral disease, that was where the pain was coming from on examination, and there was marked patellofemoral crepitus. He said the deep vertical split in the trochlear would rarely be part of degenerative disease.

199 Mr Miller further said that the typical pattern for arthritis of the knee was that it started in the medial compartment with the medial femoral condyle and medial tibial plateau, followed by tearing of the menisci and subsequent progression and spread of the disease throughout the knee. Here the menisci were normal, which did not fit that pattern. Asked why trauma induced changes would not result in damage to the menisci Mr Miller said:

Mr Miller said you could get fissuring to the trochlear with osteoarthritis of the knee but the location in this instance would fit with the kneecap being hit, adding:

One could imagine that the [kneecap] sort of gets whacked into that and causes a fissure. Now that doesn't have to be the way but it seems to fit with the available evidence much better than the alternative explanation.

200 In relation to causation, Mr Miller was asked the following questions:

Q: Doctor, in relation to the left knee injury, do you make the causal connection primarily because there is, on your history that's given to you, reports of complaint of pain in the left knee immediately after the accident?

A: Not primarily. That's a factor. So it's not one factor, it's all the factors that have been discussed so far and particularly the arthroscopic findings.

Q: Is the greater time lapse between the accident and any report of problems with the knee, does that suggest a lesser causal connection?

A: Well it's a factor. It depends on when the first report was made. So was there- were the symptoms in the knee reported soon after the accident or not soon after the accident? Was the gap small or large?

...

Q: And as a result of that complaint she's referred for x-ray after that, to the left knee. What I'm asking you, doctor, is that gap of 11 months, does that suggest a disconnect between the motor vehicle accident and the causal connection that you make?

A: It depends a bit on how you view the - his note that the knees are hit. But presumably he's made that note because he thought it was of some relevance. So if you interpret that as being an injury to the knee and then a subsequent report - how many months later?

Q: Eleven?

A: Eleven months later. No, I think that's consistent with the identified pathology.

201 Dr Fraser examined the applicant on 19 January 2016 for medico-legal purposes on behalf of the respondent. Dr Fraser gave oral evidence and his report of 20 January 2016 was tendered. The trial judge noted that Dr Fraser did not view the 2010 arthroscopy report, which he did not consider would be likely to influence his opinion. He thus failed to have regard to evidence which both Mr McLean and Mr Miller regarded as highly significant. The trial judge concluded:

In my opinion, Dr Fraser's views did not contribute to the body of evidence about Ms Davies' conditions in any significant way.[61]

The trial judge's findings in respect of the left knee

202 The trial judge accepted the applicant's evidence as to the accident circumstances and her immediate symptoms but, as we have noted, did not accept her account of substantial pain in the left knee prior to September 1996.

203 He summarised the effect of the contemporaneous records up to the end of 1997 in the passage from his judgment we have earlier set out when discussing the alleged injury to the lower back.[62] He also considered the records concerning the ensuing period which we have summarised above, including the report of Professor Rosenfeld.

204 The trial judge completed an analysis of the chronology of clinical notes and other documents noting in particular in relation to the left knee the report of Mr Kiellerup in May 2005, Mr Westh in July 2010, and Mr Hardidge following the diagnostic arthroscopy in late 2010.

205 The trial judge then referred to the reports of orthopaedic surgeons Mr McLean and Mr Miller. The trial judge expressed the following reservations in relation to Mr Miller's evidence. First, that on the second day he gave evidence Mr Miller 'seemed to firm up' his opinion that trauma was responsible for damage to the applicant's left knee demonstrated by arthroscopy. Secondly, he considered Mr Miller not as ready as other doctors 'to make concessions of potential inconsistencies between the applicant's presentation and objective evidence'. Thirdly, Mr Miller's evidence that the condition of the menisci in the applicant's left knee were consistent with trauma induced changes rather than arthritic induced changes should be discounted because Mr Miller was 'unable to provide any explanation'. Fourthly, his Honour stated, 'when confronted with the possibility she had no significant left knee symptoms for up to 11 months after the collision, [Mr Miller] appeared to have no difficulty adhering to the view that the accident caused her significant knee problems through to 2016'.

206 His Honour then expressed the following conclusions relating to Mr Miller's evidence:

In summary, numerous factors make it difficult to be positively persuaded by Mr Miller's view that the changes seen on arthroscopy in November 2010 are more probably explained by trauma to the knee in November 1995 rather than the natural evolution of a non-traumatic, degenerative arthritic process. They are:

• Chondromalacia patellae is a condition which is quite common, particularly amongst females.

• Ms Davies has a familial predisposition to osteoarthritic change.

• Ms Davies' significantly increasing body weight over a lengthy period of time is an additional factor which, without specific trauma, would likely increase the severity of the disease process in the knee and the changes brought about by that process.
• Ms Davies' right knee also shows degenerative changes, albeit not to the same degree as the left, absent any evidence of trauma.
• While there may be some features shown on arthroscopy 15 years after the accident which were consistent with trauma, those same features were not exclusively referrable to trauma but may also be explained by osteoarthritic change.
• Mr Miller was pressed to concede that Ms Davies' knee did show features of chondromalacia patellae which could potentially account for the patella joint pathology without trauma, although maintaining his view that was unlikely to be the case.
• It is likely that Mr Miller's assumption, based upon information given to him, that Ms Davies experienced significant left knee symptoms immediately after the accident influenced his view of the severity of the trauma experienced in the accident and, in turn, his belief that the changes seen on arthroscopy were more likely related to trauma than merely osteoarthritic change.
• Despite the welter of medical evidence adduced in the case, Mr Miller stands alone in attributing significance to the 'patterns' of change shown in arthroscopy as a clue to the origins of Ms Davies' knee pathology.
• Taking account of the likelihood (as I perceive it) that Mr Miller was putting the case for Ms Davies as highly as it might possibly be put, the more acceptable interpretation of the arthroscopic findings is that they disclose advanced arthritic changes in three compartments of the knee, with the patellofemoral changes being somewhat more typical of a knee that had experienced trauma than one that had not, yet without such a disparity in occurrence that any reliable conclusion should be drawn as to the probable origin of the changes.
• Even if the damage to the groove of the trochlear was indicative of some traumatic process, the sheer lapse of time between the date of the accident and the date of the arthroscopy makes it unsafe to attribute that trauma to the car accident, particularly given there was some evidence of other falls which Ms Davies experienced in the intervening period.[63]

207 After analysis of the medical evidence, the trial judge then moved to his overall conclusions in respect of causation. As we have said, his Honour characterised the applicant's case both in relation to the lower back and left knee injuries as depending 'in large part' upon acceptance of the proposition that before the accident the applicant had no relevant symptoms but very soon after the accident she did. His Honour then expressed the conclusions which we have already set out including the ultimate conclusion:

It is most likely that Ms Davies developed symptoms of chondromalacia of the patella together with other arthritic changes in her knee. I have already stated and explained my views of Mr Miller's opinion that the pattern of osteoarthritic change, shown on arthroscopic investigation, made it more probable that a trauma initiated Ms Davies' left knee symptoms. I need not repeat them. She clearly has some constitutional predisposition to knee joint arthritic change. Her significant weight no doubt contributed to the progression of her left knee pathology, and the fact that she also developed arthritic change in her right knee tends to make more likely the role of constitutional factors in her left knee arthritic change. I am far from persuaded that but for the accident she would not have suffered this condition or her symptoms at about the same time and to about the same degree as she has in fact suffered them. So, I do not find that the motor vehicle accident caused any injury to her left knee or her right knee.[64]

208 The applicant submitted that the uncontradicted expert evidence, cross-examined on but not effectively challenged, was that the accident was a cause of the condition of the left knee identified by the orthopaedic surgeons. While the orthopaedic surgeons, Mr McLean in particular, said that if there was a gap of 10 or 11 months before the left knee complaints in September or October 1996 this would make causation less clear, neither orthopaedic surgeon resiled from the view that the 1995 accident was a cause of the left knee condition. Assessment of whether there was a causal connection between the accident and the current left knee condition was particularly a matter within the province of the orthopaedic surgeons. It was submitted that on the evidence before the trial judge, in particular the uncontradicted evidence of the orthopaedic surgeons, the only conclusion open was that the accident was a cause of the condition of the left knee.

209 The applicant submitted that criticism by the trial judge of Mr Miller, which formed a basis for rejection of Mr Miller's evidence, was not warranted. Mr Miller was not cross-examined on the basis that his view was at the extreme edge of acceptability. Counsel submitted:

He's [Mr Miller] given his view. Whether that's high or low is not to the point. It is his view.

Counsel submitted that Mr Miller made appropriate concessions, but maintained his view, adding:

So he's fairly described his opinions and he has fairly admitted the possibility of others, but he's given reasons why he rejected the others.

210 The applicant also submitted that there was no basis for rejecting the applicant's mother's evidence recalling the incident of significant left knee pain complained of by her daughter within a few days of the accident. It was never put to the applicant's mother or the applicant that this incident did not happen, only that it happened some months later. It was submitted that in those circumstances the evidence of the applicant's mother should have been accepted.

211 The respondent submitted that there should be greater emphasis on the advantage enjoyed by the trial judge in making factual findings given the length of the case and the opportunity the trial judge had to assess the credibility of witnesses and to get the feel of the case. It was submitted that the trial judge heard the orthopaedic surgeons and gained an impression of them. On the whole of the evidence, the linkage between the left knee and the accident was doubtful. Mr Miller conceded it was possible there was no linkage, and Mr McLean went further by saying the delay in complaint reduced the probability of a linkage. Even where the orthopaedic experts said as a matter of probability that the accident was a cause of the left knee condition, that issue remained one for determination by the trial judge.[65] The conclusion of the trial judge that causation was not established was not 'glaringly improbable', or incontrovertibly wrong, and should not be disturbed on appeal.[66] It was submitted that the trial judge heard the evidence of Mr McLean as to causation, and was entitled on that evidence and the other evidence in the case to conclude that he was not satisfied as to causation in relation to the left knee. Further it was submitted that the trial judge was entitled not to be otherwise satisfied by the evidence of Mr Miller.

212 The respondent also submitted that the trial judge was entitled not to accept the evidence of the applicant's mother as to the complaint of left knee pain made by the applicant within days of the accident. The trial judge was entitled to prefer, and to rely upon, contemporaneous medical material in determining what complaints were being made by the applicant in late 1995 and throughout 1996. This was particularly so because of the issues of fallibility of memory, objectivity and reliability which the trial judge was entitled to take into account in assessment of the applicant's mother's evidence.[67] If the applicant had been suffering symptoms which were serious or of concern to her, it would be expected that she would make complaint to her doctors about those symptoms. The fact that no complaint is recorded in contemporaneous records is another reason for rejecting the evidence of Mrs Davies.

213 Finally, the respondent submitted that whilst there was complaint in relation to the left knee in October 1996, there was very little of any significance which followed that complaint in the clinical records. The finding of the trial judge that the complaints from that point are best explained by the development of a somatic pain disorder is consistent with the view of the psychiatrist, Dr Doherty (whose view was that the applicant's psychiatric problems were not caused by physical injury), and cannot be said to be glaringly improbable or incontrovertibly wrong, and therefore should not be disturbed on appeal.

214 For the reasons which follow we accept the submission of the applicant that the trial judge erred in concluding that she had failed to establish that the accident was a cause of the condition of her left knee. First, there was no contest as to the condition of the left knee from which the applicant now suffers. That was the condition demonstrated by the arthroscopy of 4 November 2010 and found by Mr McLean on clinical examination in 2012, and confirmed by Mr Miller on his examinations in 2013 and 2015. Mr McLean and Mr Miller were not subject to challenge on the basis that there was little physically wrong with the applicant's left knee, or that the applicant's complaints of pain and symptoms at the time of their respective examinations or at earlier times as the condition of the left knee developed, were better explained as being part of a somatic pain disorder.

215 Secondly, it was not accurate to characterise the applicant's case in relation to the left knee, as the trial judge did, as being largely dependent on the proposition that before the accident the applicant had no left knee pain, but very soon after the accident she did. Whilst it is true that the applicant put a case in that way, she also clearly relied on the intermediate position, consistent with the evidence of Mr Miller and Mr McLean, that causation was still established if there was a delay of 10 to 11 months between the initial complaints of bruising and abrasion of the knee in the accident and the next recorded complaint of pain in the left knee in the clinical records.

216 Thirdly, the trial judge relied on the clinical records, as he was entitled to do, as objective evidence of lack of complaint in relation to the left knee in the period up to September or October 1996 when assessing whether to accept or reject the evidence of the applicant and her mother that left knee complaints commenced shortly after the accident and then continued and worsened. Nonetheless, the clinical notes dating from October 1996 were, similarly, objective evidence of complaints and a developing chronic condition affecting the left knee which, according to the notes, was linked to the accident. There is no doubt that by October 1996 the applicant was complaining of sufficient symptoms in the left knee to warrant an x-ray investigation. The 3 July 1997 note records left leg complaints related to the motor car accident, with left knee discomfort noted as the chief reason for disturbed sleep. The note 'was only at night and now is during the day' suggests that the left knee discomfort had been present for some time and had worsened by the time of that attendance. The note of 2 May 1999 again links the left knee complaints to the accident. By October 2000, the left knee complaints are noted as the main problem. The note of February 2002 again links the left knee complaints to the motor car accident. In March 2003, the left knee pain is recorded as chronic. The trial judge analysed the applicant's case on the basis of her evidence, supported by the evidence of her mother, that she commenced to suffer left knee symptoms shortly after the accident, and that those symptoms quickly became disabling. That case was rejected by the trial judge. However, the clinical notes and other contemporaneous evidence support the conclusion that from at least October 1996 the applicant was complaining of gradually increasing pain and disability affecting the left knee which ultimately developed to the stage of her current condition as described by Mr McLean and Mr Miller.

217 Fourthly, as was submitted by counsel for the applicant, there is no other trauma that has been identified as explaining the developing condition in the left knee. The only proposition put positively, by cross-examination of Mr McLean and Mr Miller rather than by evidence, against causation, was constitutional or genetic predisposition to arthritis exacerbated by excessive weight. Each of Mr McLean and Mr Miller rejected that explanation for the condition of the left knee as improbable. Mr McLean responded to the proposition that predisposition to osteoarthritis could explain the condition of the applicant's left knee seen on arthroscopy as 'taking it to an extreme'.

218 Fifthly, Mr McLean and Mr Miller are consistent in their descriptions of the mechanism of injury, which is itself consistent with the accident circumstances as found by the trial judge. That is, direct impact to the patella causing damage to the articular surface of the rear of the patella and the adjacent trochlear groove of the femur. Mr McLean in cross-examination stated that he took into account the mechanism of the accident when assessing the causal relationship between the accident and the left knee. Mr McLean and Mr Miller both based their opinions as to causation on their understanding of the mechanism of injury and the damage evident on arthroscopy.

219 Sixthly, while assessment of Mr Miller as a witness was a matter within the province of the trial judge, it is difficult to see how the judge's criticism of Mr Miller is borne out by the transcript, particularly in circumstances where there is little difference between his opinion and that of Mr McLean. As counsel for the applicant submitted, Mr Miller's opinion was not challenged on the basis that it was extreme and nor could it readily have been so challenged, given that his opinion was in line with that expressed by Mr McLean.

220 We turn then to the specific points identified by the trial judge as factors going to the credibility of Mr Miller's opinion and observe that:

(a) it was Mr Miller who proffered that chondromalacia patellae is a common condition, particularly amongst females;

(b) both Mr Miller and Mr McLean considered osteoarthritis and weight gain an unlikely explanation for the current condition of the applicant's left knee;

(c) it may be accepted that the applicant's weight gain may have affected the rate of deterioration of her left knee but this does not answer the evidence of Mr Miller and Mr McLean as to the characterisation of the damage to, and condition of, her left knee;

(d) Mr McLean distinguished the condition of the right knee from the left knee and described the pattern of damage to the left knee, particularly to the rear of the patella and in the trochlear groove, as being consistent with the type of trauma sustained by the applicant in the motor car accident;

(e) the findings made on the arthroscope as explained by Mr Miller and Mr McLean strongly support the conclusion that the applicant suffered traumatic damage to her left knee;

(f) Mr Miller specifically explained why the condition of the applicant's left knee should not be regarded as a consequence of chondromalacia patellae;

(g) it may be accepted that Mr Miller's initial opinion was informed by the history he received about significant knee pain after the motor car accident. But his evidence as a whole squarely addressed the possibility that significant symptoms did not emerge for some 10 or 11 months. Both he and Mr McLean gave evidence that this was entirely consistent with the effects of deterioration due to trauma suffered as a result of the motor car accident.

(h) there was not in fact a welter of relevant specialist medical evidence addressing the applicant's knee condition and explaining the relationship between the mechanism of the motor car accident, the findings on arthroscopy and the findings on clinical examination. Moreover, as we have explained, Mr Miller's evidence was essentially consistent with that of Mr McLean;

(i) the expert evidence as to the findings on arthroscopic investigation was directly supportive of the applicant's case;

(j) the conclusion of the trial judge that the lapse of time between the date of the motor car accident and traumatic damage to the trochlear groove observed on arthroscopy makes it unsafe to 'attribute that trauma to the accident' seems to ignore or give insufficient weight to the temporal connection between the accident and the history of complaints recorded from October 1996, the fact that the clinical notes record the accident as the cause of the left knee condition, the absence of any other evidence of trauma and the reasoned opinions of Mr Miller and Mr McLean as to causation.

221 We would therefore conclude that the weight of the evidence taken as a whole supported the conclusion that the motor car accident was a cause of the current condition of the applicant's left knee as described by Mr McLean and Mr Miller. Giving due weight to the advantages enjoyed by the trial judge, in our view, the trial judge was, with respect, wrong not to conclude that the motor vehicle accident was a cause of the current condition of the applicant's left knee as described by Mr McLean and Mr Miller.[68]

222 In oral argument, the parties agreed that if causation was established with respect to both the lower back and left knee then causation was also established with respect to the applicant's psychiatric injuries. They also agreed that if causation was not established in respect of both the lower back and left knee then, similarly, causation was not established in respect of the applicant's psychiatric injuries. These concessions accorded with the evidence given at trial.

223 Having regard to our conclusion that there is a causal link between the applicant's left knee injury and the motor car accident, but no causal link between the collision and the applicant's lower back condition, the issues relating to the applicant's psychiatric injuries need to be reassessed. Specifically, it remains to determine whether there is a causal link between the applicant's left knee condition and pain, and any and what part of, her psychiatric condition. These are not issues which this Court is, without seeing the witnesses, in a position to determine.

The resolution of the application for leave to appeal and appeal

224 In the light of our conclusions that the motor car accident was a cause of the applicant's left knee injury, we will grant leave to appeal and allow the appeal. We are, however, not in a position to reassess the applicant's damages. Moreover, the extent of the applicant's psychiatric condition, secondary to the applicant's left knee injury and the pain caused by that injury, needs to be re-evaluated at a hearing at which a court will have the benefit of hearing and seeing the relevant witnesses express opinions about the facts that have previously been agreed or found, the facts we have found and the facts that are yet to be found.

225 The application for leave to appeal will be granted and the appeal will be allowed. The matter will be remitted to the Trial Division for rehearing and determination in accordance with these reasons.

[1] [2016] VSC 557 [356] ('Reasons') (emphasis in original).

[3] Jones v Dunkel (1959) 101 CLR 298.

[6] See, for example, the opinion of Mr McLean summarised at Reasons [253]-[254].

[7] Reasons [324]-[335] (emphasis in original) (citations in original).

[9] [2016] HCA 22; (2016) 331 ALR 550, 558-9 [43] (citations in original).

[10] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-7 [25] (Gleeson CJ, Gummow and Kirby JJ) ('Fox').

[11] Devries v Australian National Railways Commission (1993) 177 CLR 472, 479-81 (Deane and Dawson JJ); Fox [2003] HCA 22; (2003) 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ); Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357, 380-1 [76] (Heydon, Crennan and Bell JJ).

[12] Fox [2003] HCA 22; (2003) 214 CLR 118, 128 [28] (Gleeson CJ, Gummow and Kirby JJ).

[13] Fox [2003] HCA 22; (2003) 214 CLR 118, 128 [29]. See also Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357, 380-1 [76].

[14] [2003] HCA 22; (2003) 214 CLR 118, 125-6 [23] (citations in original).

[15] Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561. The Court there was concerned with s 82 of the Matrimonial Causes Act 1899 (NSW) which provided that 'on appeal every decree or order may be reversed or varied as the Full Court thinks proper': see Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 558.

[16] Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561. See also Scott v Pauly [1917] HCA 60; (1917) 24 CLR 274, 278-281.

[17] Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, 637; [1985] 1 All ER 635, 637 (Lord Scarman), with reference to Joyce v Yeomans [1981] 1 WLR 549, 556; [1981] 2 All ER 21, 26. See also Chambers v Jobling (1986) 7 NSWLR 1, 25.

[18] SRA State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3; (1999) 73 ALJR 306, 330 [89]-[91]; [1999] HCA 3; 160 ALR 588, 619-20, citing Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207, 209-10; Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 466-7.

[19] Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 59 ALJR 842, 844; [1985] HCA 61; 62 ALR 53, 57.

[20] Fox [2003] HCA 22; (2003) 214 CLR 118, 133-4 [48] (citation in original).

[30] [1960] HCA 58; (1960) 108 CLR 158.

[31] [1965] HCA 34; (1965) 114 CLR 164.

[32] (1973) 47 ALJR 122.

[33] [1990] HCA 20; (1990) 169 CLR 638.

[34] [1991] HCA 12; (1991) 171 CLR 506.

[35] [2005] NSWCA 208.

[36] [2012] HCA 5; (2012) 246 CLR 182.

[37] [2013] HCA 19; (2013) 250 CLR 375.

[38] [2013] VSCA 368; (2013) 42 VR 197.

[41] [1961] HCA 65; (1961) 108 CLR 642, 645.

[42] 1953 SC 34, 39-40, cited with approval by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, 729-30 [59].

[43] Davies v Nilsen and Transport Accident Commission [2014] VSCA 278.

[47] Report of Professor Jeffrey Rosenfeld dated 19 November 1999.

[53] Originating in dysfunction of the nerves or nervous system.

[56] Quoted at [16] above.

[58] See, for example, the opinion of Mr McLean summarised at Reasons [253]-[254].

[59] Reasons [331]-[333] (citations in original).

[60] A joint condition characterised by a partial or complete detachment of articular cartilage and underlying bone.

[62] See [71] above.

[65] Dahl v Grice [1981] VicRp 50; [1981] VR 513.

[66] Fox [2003] HCA 22; (2003) 214 CLR 118, 125-6 [23].

[67] The Nominal Defendant v Cordin [2017] NSWCA 6 [165]-[167] (Davies JA).

[68] See Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550, 558-9 [43]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125-6 [23].