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[1965] HCA 34
appellant. Appeal allowed with costs. Order of Full Court of Supreme Court of Queensland set aside and in lieu thereof order that appeal and cross-appeal to that Court be dismissed with costs, costs to be set...
A woman injured in a vehicle accident developed severe ongoing neck pain. She already had wear-and-tear changes in her spine that might eventually have caused problems. The trial judge awarded her more than £10,000, deciding the accident was the real cause of her current disability. The appeal court cut the award to £8,000, thinking the amount for pain and lost enjoyment of life was too high. The High Court restored the original award, ruling that once an injured person shows their problems stem from the accident, the defendant must produce clear, precise evidence proving the pre-existing condition would have caused exactly the same level of disability anyway. Vague medical opinions are not enough. The original judge had not made a mistake, so his assessment stood.
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The appellant, Mrs Purkess, was 49 years old when she was involved in a motor vehicle accident while riding in a vehicle. She was thrown first against the left-hand side of the cabin and then head first against the roof. The main complaint that emerged was constant, severe and disabling pain in the cervical region of her spine. Medical evidence established that some 18 months before the accident she had experienced severe pains in the lumbar region and that she was already suffering from long-standing degenerative changes in the spine, most marked in the cervical region.
At trial before a judge sitting alone the appellant gave evidence of her symptoms and called medical witnesses. The respondent called evidence directed to showing that the degenerative condition was likely to have produced similar disability even without the accident. The trial judge accepted Dr Sutherland's evidence that the plaintiff might not have developed her present symptoms if she had not sustained the injury. Although he noted other medical opinion that "from the state of the degeneration of her spine, one could expect the plaintiff would be in some trouble within at least the fifty to sixty range", he assessed damages on the footing that her then present condition and resulting permanent disability were the result of the accident. He awarded £5,000 for general damages (excluding economic loss), £5,064 for economic loss and £155 19s. 6d. for special damages, a total of £10,219 19s. 6d.
The respondent appealed to the Full Court of the Supreme Court of Queensland contending that the damages were excessive. The appellant cross-appealed, arguing the award was manifestly inadequate and seeking an increase to £13,509 19s. 6d. The Full Court allowed the appeal, reducing the judgment to £8,000, and dismissed the cross-appeal. It considered that £5,000 for past, present and future pain and suffering and loss of enjoyment of life was excessive having regard to "current standards in Australia". The Full Court left the economic loss component undisturbed, finding it neither too large nor too small.
On further appeal to the High Court the majority (Barwick C.J., Kitto, Taylor and Windeyer JJ.) held that the trial judge had not erred. The evidence did not establish with reasonable precision the extent of the pre-existing condition or its future effects independent of the accident. Therefore the trial judge was entitled to assess damages on the basis that the accident caused the permanent disability. The sum of £5,000 for non-economic loss was not so large as to justify appellate interference. The appeal was allowed, the Full Court's order set aside, and the trial judgment restored. Menzies J. dissented, considering the trial award over-generous (particularly the economic loss component) and the Full Court's figure of £8,000 one with which this Court should not interfere.
The central reasoning of the majority turned on the proper allocation of the burden of proof when a defendant asserts that a pre-existing condition would have produced the same or similar disability irrespective of the tort. The Court carefully distinguished the two senses in which "burden" or "onus" of proof is used. The legal burden of proving the extent of damage caused by the defendant remains throughout on the plaintiff. However, once the plaintiff has made out a prima facie case by direct or circumstantial evidence that the incapacity resulted from the defendant's negligence, an evidentiary burden shifts to the defendant.
That evidentiary burden requires the defendant to adduce evidence (whether in chief or by cross-examination) which, if accepted, would establish with some reasonable measure of precision (1) what the pre-existing condition was, and (2) what its future effects, both as to nature, development and progress, were likely to be. Mere suggestion of a progressive condition or a possible relationship between it and the plaintiff's symptoms is insufficient. Only when that evidentiary threshold is met does the tribunal of fact have before it material that requires it to weigh the whole of the evidence to decide how much of the disability is attributable to the tort.
In the present case the evidence fell short of that standard. The trial judge had accepted evidence that the plaintiff might not have developed her present symptoms without the injury. The respondent's medical evidence was not sufficiently definite to permit a finding as to the probable future course of the degeneration independent of the accident. Consequently no issue arose that required the trial judge to discount the damages on account of the pre-existing condition. He was entitled to treat the accident as the cause of the permanent disability.
The majority also concluded that the trial judge's figure of £5,000 for pain, suffering and loss of amenities was not excessive once the disability was accepted as accident-caused. The disability was constant, severe and disabling. Appellate courts should not interfere with a trial judge's assessment merely because they might have awarded a different sum; only manifest excess or inadequacy warrants intervention. The Full Court had therefore erred in substituting its own view of "current standards in Australia".
Windeyer J. added that the case did not permit neat apportionment between accident-related and degeneration-related pain; the evidence did not sustain any such disentangling exercise. A tortfeasor takes the victim as found; frailty does not reduce liability. He agreed that the trial judge had not misapplied principle and that no sufficient ground existed for appellate disturbance.
Menzies J. reached a different view on the facts. He considered the economic loss component over-generous and, looking at the global figure of £8,000 fixed by the Full Court, could not say that it was erroneous. His judgment did not dissent from the legal principles articulated by the majority but differed in their application to the quantum.
Prior to this decision the law on pre-existing conditions was shaped primarily by the dicta in Watts v Rake (1960) 108 CLR 158. Some passages in that case had been read as suggesting that once a plaintiff proved a prima facie link between accident and incapacity the entire legal onus of proving that a pre-existing condition would have caused the disability anyway shifted to the defendant. The present Court clarified that Watts v Rake was concerned only with the secondary, evidentiary sense of onus. The legal burden never leaves the plaintiff. What Watts v Rake decided was that a defendant who wishes to displace the prima facie inference must produce evidence of sufficient quality and precision; otherwise the plaintiff's prima facie case stands.
The judgments also drew on earlier High Court authority (Fitzpatrick v Walter E. Cooper Pty Ltd (1935) 54 CLR 200 and Mummery v Irvings Pty Ltd (1956) 96 CLR 99) and academic writing (Phipson on Evidence and Cross on Evidence) to emphasise the shifting nature of the evidentiary burden according to the state of the evidence. The "crumbling skull" scenario (where the pre-existing condition would inevitably have produced the same disability) must be proved by the defendant with reasonable precision if it is to reduce damages. By contrast, the "thin skull" or "egg-shell skull" rule remains undisturbed: a tortfeasor obtains no discount merely because the plaintiff was unusually vulnerable.
After the decision the law stood in a clearer state. Trial judges were directed to ask first whether the plaintiff had established a prima facie causal connection. If so, they were to examine whether the defendant had led evidence that met the precision threshold. Only then could the judge weigh the whole case to decide what portion of the disability was caused by the tort. Appellate courts were reminded that interference with a trial assessment requires demonstrable error, not merely a preference for a different figure. The decision reinforced that damages for personal injury are not to be reduced on the basis of speculation; concrete evidence is required.
The joint judgment of Barwick C.J., Kitto and Taylor JJ. contains the most frequently cited passage:
"where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results..."
Plain-English translation: If the injured person presents enough initial proof that the accident caused their current problems, the person being sued must come forward with concrete evidence showing that an old health problem would have caused the same problems anyway. Without that evidence the injured person's case on damages stands and the court does not even have to consider the old condition.
Later the joint judgment states:
"it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence … which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be."
Plain-English translation: It is not sufficient for the defence lawyer to say "she had a bad back before". The defence must prove, with reasonably clear detail, exactly what the old condition was and exactly how it would have worsened over time if the accident had never happened. Only then can the judge decide how much of the disability is truly due to the accident.
Windeyer J. repeated Dixon C.J.'s observation from Watts v Rake:
"If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause."
Plain-English translation: If the defence wants to say "part of her pain is from the old spine disease, not the crash", it is the defence that must separate the two causes and prove which part is unrelated to the crash. The plaintiff does not have to disprove every possible alternative cause.
These passages, read together, form the doctrinal core of the decision and have guided Australian courts in distinguishing between the plaintiff's legal burden and the defendant's evidentiary obligation.
The principles are engaged whenever a personal injury plaintiff presents with a pre-existing degenerative or progressive condition and the defendant seeks to argue that the plaintiff's current symptoms or disability would have occurred, wholly or partly, even without the tort. Typical triggers include:
The precedent does not apply if the defendant merely proves that the plaintiff was frail or that the consequences were more severe because of the pre-existing condition; the "egg-shell skull" rule precludes any discount on that basis. It is also not triggered by vague cross-examination suggestions; the defendant must tender or elicit evidence that meets the precision threshold. Where the evidence does meet that threshold the tribunal must then decide on the whole of the evidence what portion of the disability is accident-caused. The case is not authority for automatic apportionment; if disentanglement is impossible on the evidence the defendant obtains no reduction.
Although the present judgment contains no survey of subsequent authority, its treatment of Watts v Rake illustrates the manner in which the High Court expects its pronouncements to be read. The joint judgment and Windeyer J.'s separate reasons expressly state that observations in Watts v Rake had been misunderstood. The Court therefore took the opportunity to restate the distinction between the stable legal burden (always on the plaintiff) and the shifting evidentiary burden. By doing so it reinforced Watts v Rake while confining its dicta to the evidentiary stage. The decision thereby operates as both a clarification and an affirmation of the earlier authority.
The judgment also cites Fitzpatrick v Walter E. Cooper Pty Ltd and Mummery v Irvings Pty Ltd for the dual meaning of "onus of proof". In that sense the decision integrates itself into a consistent line of High Court authority on the mechanics of proof in civil litigation. The repeated emphasis that the defendant must provide evidence "which, if accepted, would establish with some reasonable measure of precision" sets a concrete standard against which later courts can test the sufficiency of a defendant's case. The Court's refusal to interfere with the trial judge's quantum assessment further signals that appellate intervention on damages requires clear error, not merely a different impression of what is "generous".
Several matters are left unresolved by the text. First, exactly what constitutes "reasonable measure of precision" remains a question of degree. The joint judgment says the evidence must establish "with some reasonable measure of precision" the condition and its future effects, but gives no numerical or temporal template. Trial judges are left to assess case by case whether medical forecasts are too speculative.
Second, the judgment acknowledges that in some cases disabilities "can be disentangled". It does not, however, prescribe how a judge should proceed when partial causation is established. Is a percentage reduction permissible, or must the judge assess separate heads of damage? The evidence in the present case did not permit disentanglement, so the point was not decided.
Third, the interaction between the present principles and claims for future economic loss is not fully explored. The Full Court left the £5,064 economic loss component untouched, and the majority described it as "generous" but not excessive. Whether a more precise actuarial or medical forecast of the pre-existing condition's future impact would have required a discount on the economic loss head is unanswered.
Fourth, the standard of appellate review of a trial judge's finding that the evidentiary burden has or has not been discharged is not articulated. The majority simply held that the trial judge was entitled to reach the view he did. Whether that finding is treated as a question of fact, a mixed question, or an error of principle for appellate purposes is left for future cases.
Finally, the decision assumes the accident was clearly negligent; no issue of liability arose. How these evidentiary principles operate when causation of injury itself (rather than merely the extent of damage) is in dispute is not addressed.
These open questions illustrate that while the case provides a clear framework for allocating evidentiary responsibilities, its application in borderline medical cases continues to require careful factual analysis. Practising lawyers should ensure that medico-legal reports address the precise future trajectory of any pre-existing condition if they wish to engage the principles discussed.
High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Windeyer JJ. Purkess v Crittenden [1965] HCA 34
ORDER Appeal allowed with costs. Order of Full Court of Supreme Court of Queensland set aside and in lieu thereof order that appeal and cross-appeal to that Court to be dismissed with costs, costs to be set off. The sum of £50 in the hands of the Registrar of the Supreme Court to be applied as may be directed by the said Court or a Judge thereof.
In an action for damages for personal injuries heard without a jury the appellant secured an award of £10,219 19s. 6d. This amount was made up of £5,000 for general damages excluding economic loss, £5,064 representing an assessment of economic loss and £155 19s. 6d. for proved special damages. Following the entry of judgment for this amount the present respondent appealed to the Full Court on the ground that the damages awarded were excessive. The present appellant thereupon gave notice of cross-appeal on the ground that the award was manifestly inadequate and indicated that the Full Court would be asked to increase the amount of the judgment to £13,509 19s. 6d. In the result the Full Court allowed the appeal reducing the amount of the judgment to £8,000 and dismissed the cross-appeal. We are now asked by the appellant to set aside the order of the Full Court and direct that judgment should be entered for the appellant for £13,509 19s. 6d.
At the time when the appellant received her injuries she was forty-nine years of age and the main disability of which she complains is the existence of constant severe and disabling pain in the cervical region. This is said to have resulted from being thrown first against the left-hand side of the cabin of the vehicle in which she was riding at the time of the accident and, thereafter, head first against the roof.
There was, however, evidence that some eighteen months before the accident the appellant had experienced severe pains in the lumbar region of her back and that previously to the accident she was suffering from degenerative changes in the spine which were most marked in the cervical region. This condition was said to have been long-standing and it was asserted on behalf of the respondent that the evidence showed that it was probable that at some unspecified time during the ten years following the accident the appellant would have become similarly disabled even if she had not suffered the injury of which she now complains. It is not altogether clear what view the learned trial judge formed concerning this evidence though he expressly said that he accepted Dr. Sutherland's evidence that the plaintiff might not have developed her present symptoms if she had not had an injury. Nevertheless, he added, there was competent medical evidence to the effect that "from the state of the degeneration of her spine, one could expect the plaintiff would be in some trouble within at least the fifty to sixty range" and that "the plaintiff was of such an age when she would be likely to expect trouble from her degenerative spine". The evidence does not define what "trouble" might have been expected at some time during that period and, not unreasonably, the learned trial judge assessed damages on the basis that her then present condition and resulting permanent disability were the result of the accident in which she was in volved. But in doing so he referred to Watts v. Rake [1] , a case which, it was said, contains dicta suggesting that where a plaintiff asserts that he has become permanently disabled as a result of a negligent act on the part of the defendant and the defendant sets up a case that by reason of a pre-existing condition the plaintiff would in any event have become permanently disabled within an ascertainable period, the onus of proof on this aspect of the case rests upon the defendant.
We do not regard that case as formulating the proposition that once a plaintiff has established a prima facie case that he has been incapacitated as a result of the injuries inflicted upon him by the defendant's negligence the burden of establishing that his incapacity is wholly or partially the result of, or that total or partial incapacity would, in any event, have resulted from, some pre-existing condition in the plaintiff passes to the defendant in the sense that, when the whole of the evidence in the case has been given, the onus of proof on this issue rests upon him. The expression "burden" or"onus" of proof, "As applied to judicial proceedings has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence " (Phipson on Evidence, 10th ed. (1963) par. 92). This is a proposition which has been frequently acknowledged (See e.g. Fitzpatrick v. Walter E. Cooper Pty. Ltd. [1] and Mummery v. Irvings Pty. Ltd. [2] ). The position is, we think, correctly stated by the learned author of the work to which we have referred when he says: "the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates" (ibid. par. 95) and it was with the meaning of this expression in its secondary sense that the case mentioned was concerned. We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake [3] was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant's pre-existing affliction or what its future effects, apart from the result of the defendant's negligence, were likely to be. That being so we think it was proper for him to deal with the case on the basis that the defendant's negligence was the cause of the appellant's permanent disability and, accordingly, we propose to deal with this appeal on the same basis.
In dealing with the appeal before it the Full Court refused to interfere with the assessment of £5,064 for economic loss. They found themselves unable to say that the amount was either too large or too small. Upon an examination of the material upon which it was based we think that it was a generous assessment but we find it impossible to say that it was excessive. We add that we can find no ground upon which, as was contended by the appellant, the damages under this heading should be increased by a further amount in excess of £3,000.
The Full Court, however, did think that the sum of £5,000 assessed in respect of the plaintiff's past, present and future pain and suffering and for loss of the enjoyment of life was excessive. They thought, "having regard to current standards in Australia", that the assessment was so large as to call for a review. The effect of the order made by the Full Court was to reduce the amount under this head of damages by some £2,200. We think that when regard is had to the character of the disability with which the appellant is now afflicted and the effect it must necessarily have upon her life, no case was made out before the Full Court for disturbing the assessment of the trial judge.
We therefore think that the appeal should be allowed and the initial judgment restored.
Having considered the evidence given at the trial, the judgment of the learned trial judge and that of Hanger J. in the Full Court, with which the Chief Justice and Lucas J. agreed, I have reached the conclusion that the Full Court was justified in reducing the damages awarded at the trial, viz. £10,219 19s. 6d., and that this Court should not interfere with the damages assessed by the Full Court, viz. £8,000. My conclusion that the Full Court was warranted in reducing the damages awarded by the trial judge depends in some measure upon my own view that £5,064 was an over-generous estimate of the appellant's business loss due to the accident.
It is, of course, the Full Court's award of £8,000 as the sum for total compensation that this Court has to consider and, as I am not satisfied that this assessment was in error, I would dismiss the appeal.
I agree in the judgment of the Chief Justice, Kitto and Taylor JJ. I shall, however, say something for myself as I concurred, without giving any reasons, in the decision in Watts v. Rake [1] . Observations in the judgments in that case have, it seems, been misunderstood. This has occurred from a failure to distinguish between the two main senses in which the term "burden of proof" is commonly, but perhaps confusingly, used by lawyers: see on that Professor Cross's work on Evidence , 2nd ed. (1963), pp. 65-76.
In a personal injury case the ultimate burden is on the plaintiff to establish the extent of his injuries caused by the conduct of the defendant. If when the tort occurred the plaintiff was suffering from a progressive disease which, even if he had not been tortiously hurt, would certainly and within some reasonably predictable time have disabled him in the same way as the tort did, then the defendant's conduct has merely hastened the inevitable; and damages must be measured accordingly. But a plaintiff, tortiously injured, who suffers thereafter in a way in which he had not previously suffered, may in the absence of any countervailing evidence rely upon the prima facie conclusion that for his disabilities and sufferings the defendant is responsible. It is not incumbent on the plaintiff to lead evidence to displace or discount the inference to which the facts would otherwise give rise. But he must prove his case: and when the whole of the evidence is before the tribunal of fact the burden is on him to establish the measure of his damages. The evidence may not show that the conduct of the defendant did more than accelerate misfortune. But of course, it will not avail a defendant to show that but for the plaintiff being in some way ailing when he was hurt his injuries would have been less serious than they were. A tortfeasor gets no allowance because of the frailty of his victim.
In Watts v. Rake [1] there is also a reference by Dixon C.J. to another situation, that which arises when it is said that a plaintiff's disabilities should be regarded as the separate consequences of concurrent and independent causes only one of which is the conduct of the defendant. Such cases can no doubt exist. But again a defendant is not relieved of responsibility for the consequences of his conduct because the plaintiff would not have suffered as he did unless other contributory factors had existed. The ordinary conclusion when a man suffers a hurt is that all the consequences that follow it are attributable to the events that immediately caused it. If it be suggested that this is not so, that some of the apparent consequences are not causally related to it, then some material is required to support that suggestion. It is in this sense and at this stage that a burden of adducing evidence is upon the defendant. This was so clearly stated by the learned Chief Justice in Watts v. Rake [1] that I venture to repeat what he said: "If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause". The plaintiff in his own case need do no more than rely upon the conclusion to be drawn from the basic facts that before the accident he was not disabled: that after it he was disabled in a way that could be a consequence of the hurt he sustained. Whether one calls such a conclusion an inference, a presumption of fact or a presumptio hominis matters not. It is an inference which any tribunal of fact would ordinarily draw until the defendant had, by evidence elicited in cross-examination or led, provided some material to overcome it - either by proving the contrary or throwing the matter into doubt.
It was argued in the present case that the learned primary judge misapplied these principles when he said, "I accept Doctor Sutherland's evidence that the plaintiff might not have developed her present symptoms if she had not had an injury. It was for the defendant to prove not only that the accident did no more than accelerate the occurrence of a condition that was inevitable but also the extent of the acceleration". The use of the word "prove" there may be criticized. But I see no reason to disagree with the view taken in the Full Court that there was no evidence sufficiently precise and definite to displace the inference that the disabling pain from which the plaintiff suffered after the accident was caused by the hurt she then received. It was suggested in argument for the respondent that the chronic pain and restricted movement from which she now suffers could somehow be as it were apportioned, part only of each being attributed to the accident, the rest being attributed to other factors. But there was nothing at all to sustain this entangled and difficult proposition. Her infirmities before the accident may have made its consequences more serious for her than they would have been for a person in good health. But that does not reduce the damages for which the defendant is liable.
The case is not, I think, one in which it is possible to estimate entirely independently damages for economic loss arising from a deprivation of earning capacity and damages for loss of the capacity to enjoy life to the full. If I had myself to assess the damages that the plaintiff should recover, I think I would probably have awarded her less in total than did the trial judge. But I cannot say that he approached the question in an erroneous way or that any sufficient ground existed for the setting aside of his assessment. I would therefore allow the appeal and restore his judgment.
Purkess
Crittenden
Appeal allowed with costs. Order of Full Court of Supreme Court of Queensland set aside and in lieu thereof order that appeal and cross-appeal to that Court be dismissed with costs, costs to be set off.