PRIMARY JUDGMENT
48According to the primary Judge, the appellant presented three alternative cases at trial. The " highest and best case " was that the motor vehicle accident precipitated, aggravated or rendered symptomatic the progressive neurological condition known as myelomalacia. Her Honour described this as " Case A ".
49Case A proceeded on the basis that, although the appellant had a congenitally stenosed spinal cord before the accident, there were no signs of myelomalacia prior to October 2000. On Case A, the most likely cause of the onset of myelomalacia was a whiplash injury sustained by the appellant in the accident.
50" Case B " was that the accident had exacerbated the appellant's pre-existing cervical spondylosis. Consequently, the previously asymptomatic spondylosis had been rendered symptomatic, producing permanent effects in terms of pain. On Case B, there had been no aggravation of the underlying neurological condition in terms of the canal stenosis and the development of myelomalacia.
51" Case C " was that the appellant had suffered only a short term whiplash without spondylosis. It was common ground at the trial the appellant at least suffered short term muscle strain and neck pain. The primary Judge found that the appellant's minimal injury was the short term whiplash which was likely to have an effect for about 12 months.
52The primary Judge rejected Case A. She did so in part because the appellant had exhibited signs of neurological deficit before the accident. She placed considerable weight on Dr Presgrave's opinion in August 1998 that there was a reasonable likelihood that the appellant might require surgical management of his condition at some time in the future.
53Her Honour also stated that Dr Presgrave's report of 14 October 2002 " contained a fundamental error in its starting assumptions ". In particular, the statement that on examination the tendon reflexes were normal and there were no sensory abnormalities was inconsistent with Dr Presgrave's identification of brisk reflexes in the lower limbs in August 1998 and in the upper limbs in February 1999. In her Honour's view, Dr Farey was correct to say (as he did in his oral evidence) that Dr Presgrove's 2002 report rested on a false premise.
54Her Honour also relied on what she found to be a period of some two months between the motor vehicle accident and the manifestation of the appellant's neurological symptoms. She accepted what she described as " reliable specialist medical opinion ", in particular Dr Farey's opinion, that the gap was " fatal to the existence of any causal nexus " between the accident and any neurological injury or impairment. The medical opinion was reinforced by the appellant's ability immediately after the accident to climb out of his vehicle.
55In her Honour's view, the onset of significant neurological signs two months after the accident reflected the unrelated and " natural " development of the appellant's pre-existing neurological condition. There was therefore no causal relationship between the accident and the appellant's neurological condition after the accident.
56In the context of discussing Case A, the primary Judge found that over the years many treating doctors and some of the medico-legal specialists had recommended that the appellant have surgery to address his neurological condition. One of the neurosurgeons, who examined the appellant in January 2001 (Dr Bentivoglio), described the surgery as " decompressive surgical laminectomy, which is an extensive procedure for a 37 year old male ".
57Dr Farey, in his report of 23 February 2009, repeated his recommendation that the appellant should undergo surgery for his spinal cord condition. Dr Farey described the required surgery as follows:
"[The appellant] should undergo C3 to C7 laminectomy, stabilisation and fusion for his condition. He would also require foraminotomies particularly at the C5/6 level as he clearly has evidence of C6 radiculopathy on the left side and there is associated foraminal stenosis. The rationale for the surgery is the following. [The appellant] has pre-existing congenital narrowing of the spinal canal with superimposed degenerative change. This has led to compression of the spinal cord. There is also retrolisthesis or posterior displacement of the C3 vertebral body on the C4 vertebral body as a consequence of the degenerative disc disease. This is a significant deformity and causes spinal cord compression in many patients. Failure to address this will lead to persistence of the instability and dynamic spinal cord compression even in the presence of laminectomy. [The appellant] has also developed very mild kyphosis which can be corrected with extension of the spine. Kyphosis is also a cause of anterior spinal cord compression. Consequently in addition to the laminectomy, the patient will require stabilisation and fusion with contouring of the spine to a degree of lordosis to relive the anterior spinal cord compression and also produce stability. The surgery is likely to relieve some but not all of the neurological symptoms and in particular is likely to relieve the upper limb radicular symptoms which he experiences. However he may have some impairment of hand function and some residual numbness in his hand as a result of the intrinsic damage within the spinal cord at both the C3/4 and C6/7 levels (myelomalacia). The surgery is unlikely to completely relieve the patient's neck pain but some improvement would be expected with immobilisation of the degenerate segments and correction of the instability at the C3/4 level."
58As I have noted, the trial was adjourned after three hearing days to enable the appellant to undergo the recommended surgery. However, on 13 March 2009, the appellant's solicitor informed the primary Judge that the appellant had decided not to go ahead with the procedure. In his later evidence, the appellant explained his decision on the ground that his treating neurosurgeon (Dr McKechnie) had warned that there would be more pain after the operation and that the surgery was " very dangerous ", carrying with it the risk of spinal cord bleeding leading to paralysis.
59The primary Judge appeared to be very critical of the appellant's decision. She acknowledged that it was " his decision ... and his right ". Rather oddly, she said that in view of the appellant's general unreliability as a witness, she would place little weight on his evidence (by which she seems to have meant his reasons for not having surgery). But there was no evidence to the contrary and, in the end, her Honour seems to have accepted the appellant's evidence as to the subjective reasons why he had decided not to have surgery.
60The primary Judge observed that the appellant's " failure to have surgery comes at a price in both this litigation and in life ". Later she said that " responsibility for failure to have surgery lies at the [appellant's] feet because the surgery is not had by the [appellant's] own decision ". In making these observations, her Honour appears to have been unmoved by Dr Farey's evidence as to the risks of the surgery:
"Q. And I take it that as neck surgery goes that's a fairly substantial undertaking?
A. Very, its about three hours worth of surgery to do that.
Q. And in fusing the neck, whilst you may alleviate the spinal cord pressure, does it in turn create a different issue which is you're placing increased wear and tear on the discs above and below the area where you've fused?
A. That is also correct.
Q. So there's a trade-off for having the spinal cord relieved which is you are going to place greater pressure on immediately adjacent discs to the fusion site?
A. That's correct, but if you don't fuse him in this situation, see symptoms of spinal cord compression are both produced by a static compression but also a dynamic compression with every neck movement, and at the C3/4 level it actually has, instead of the vertebral bodies being lined up exactly, he actually has a shift backwards of C3 on C4, that is the worst type of spinal cord compression you can have, and unless you stabilise that [and] realign the spine then, if you just do a simple laminectomy the patient will actually get worse.
Q. I understand the explanation--
A. So that's a trade-off, but only about 10% of people long term have to have further surgery, following a procedure like that.
Q. By that you mean further surgery to the adjacent discs where over time they've sustained damage as a consequence of the fusion?
A. Yes, but also if you look at the natural history, if you keep on taking x-rays of patients as they age, whether you have a spinal fusion or not you'll get degeneration in all of those discs.
Q. But if you've stiffened out by fusing three or four discs together, you're placing much greater strain on the adjoining points than a normal spine --
A. That's absolutely correct.
Q. I think the point I'm making, and see if you agree with it as I endeavour to put it in lay terms, is that there is a price you pay for the fusion which is a higher probability of increased degeneration in the adjacent discs to the fusion site?
A. Yes. But that's better than being paralysed.
Q. I accept it's a price that might be worth paying, but it is nonetheless a price extracted for the relief of the spinal cord?
A. Yes it is."
61Dr Cummine, an orthopaedic surgeon called by the respondent, was even more sceptical about surgery for cervical myelopathy which he said had not yet been shown to be beneficial. In his cross-examination he agreed that surgery could create deterioration in the discs not directly affected by the operation and that, while fusion might help in one area, it creates potential problems in other areas. Dr Cummine also said that he would not be at all critical of the appellant if he was reluctant to undertake the surgery that other doctors had recommended. The primary Judge appears also to have been unmoved by Dr Cummine's evidence on this point.
62The primary Judge accepted the appellant's Case B, despite finding that the appellant had not accurately reported his pre-accident history to some of the doctors who assessed his condition after the accident. In particular, her Honour noted that the appellant had relied on Dr Farey's opinion to support his contention that the accident exacerbated his pre-existing spondylosis. In her Honour's view, Dr Farey had expressed his opinion on the basis of a mistaken belief, induced by the appellant's inaccurate recounting of his medical history, that the pre-existing cervical spondylosis had not caused the appellant significant neck pain prior to the accident. The primary Judge found, consistently with the contemporaneous reports of Dr Presgrave, that the appellant had in fact complained of neck pain in 1998 and 1999. Accordingly, Dr Farey's assumption that the appellant's condition was asymptomatic before the accident was undermined.
63Nonetheless, according to her Honour, it did not follow that the appellant's pain had not been exacerbated by the injuries sustained in the accident. She accepted that the appellant's actions and complaints had changed after the accident and that his symptoms had worsened after the accident. Indeed, so much had been conceded by the appellant.
64The primary Judge considered that the appellant's claim to have suffered continuing disabilities as a result of the accident was complicated by the likely progression of his pre-existing condition. Her Honour said that the complexity had been encapsulated by Dr Farey's opinion, expressed in October 2004:
"[t]hat regardless of the exacerbation of underlying cervical spondylosis caused by the motor vehicle accident [the appellant] would have been eventually rendered unfit for his pre-injury duties in any event because of spinal cord compression. This condition is a progressive condition. Apart from neck pain, it is generally a painless condition presenting with fine motor impairment in the hands, unsteadiness of gait, possible numbness in the fingertips of both hands and subjective weakness. The natural history of his condition is one of slow progression with increasing neurological deficit when untreated."
65Her Honour summarised her conclusions as follows:
" . In 1998-1999, the [appellant] had, and complained, about neck and back pain; although the [respondent's] act aggravated that existing ailment, and (any) associated incapacity, in the sense contemplated in Watts v Rake [(1960) 108 CLR 158] and Purkess v Crittenden [(1965) 114 CLR 164].
. The [appellant] has now, and had before the accident, significant vulnerability; but his condition has deteriorated significantly over the years by natural progression of an underlying neurological condition that has no causal nexus with the motor vehicle accident, which supervening happening has, in the circumstances, prevented a particular damage, here economic loss, occurring as a result of the tort."
66The primary Judge appeared to accept that the authorities cast the burden on the respondent to disentangle the consequences of the aggravation of an existing condition from those consequences that would have ensued in any event from the deterioration of a pre-existing condition. She found that:
"To the extent that any onus falls upon the [respondent], that is discharged fully on the evidence as to the plaintiff's condition since he last was examined by Dr Farey, in November 2008 .... In the period between Dr Farey's examination in 2004 and 2008, there is a shading to grey in the evidence which is determinable only with the relatively blunt instrument of the onus.
That condition had deteriorated by November 2008 to the point that it had overwhelmed the consequences of the motor vehicle accident . It is quite possible that that had occurred sometime before November 2008; but an element of speculation attends the when [sic] in any such analysis.
...
It is not possible to nominate the date on which this occurred with any precision. Allowing an error margin in the [appellant's] favour, which may involve some unjustifiable inflation of his claim in this context, I find that the underlying neurological condition subsumed any relevant consequence of the motor vehicle accident by the time of Dr Farey's last examination on 25 November 2008, effectively 8 years after the motor vehicle accident. Thereafter the supervening happening prevents loss or damage occurring that sounds in economic loss, including care services." (Emphasis added.)
67The primary Judge noted the comments made by Dr Farey, in his report of 23 February 2009 under the heading "Apportionment of Disability " (extracted at [44] above). Her Honour also quoted Dr Farey's comments in his subsequent report of 16 November 2009 (extracted at [45] above.)
68Her Honour observed that the force of Dr Farey's criticism was muted by the fact that the refusal to have surgery was the appellant's decision and was not the consequence of a " Dickensian process ". She added this somewhat puzzling observation:
"The application of Dr Farey's criticism to the fact of the [appellant's] decision not to have surgery transmogrifies Dr Farey's assessment into 65% due to the plaintiff's failure to have surgery and 35% due to pre existing cervical spondylosis and congenital narrowing of the spinal canal."
69The primary Judge approached the appellant's claim for loss of earning capacity on the basis that the accident produced consequences for the appellant's earning capacity over a closed period of about eight years. Her Honour considered that calculation of the appellant's loss was complicated by his " patchy to non-existent " employment history, inconsistencies in the information he gave to doctors, constraints on his physical capacity by reason of pre-existing conditions and the potentially catastrophic consequences of even mild trauma. She rejected what she understood to be the appellant's evidence that he had earned about $26,000 net from his work at Mendooran in each of the two financial years prior to the accident. Instead her Honour found that the appellant's earning capacity was a total of $34,724 over the five year period from 1 July 1995 to 30 June 2000, inclusive of social security payments (that is, $6,944.80 per annum). Her Honour also found that if there was an opportunity to make a profit in the development and sale of the business, it was " a possibility so very slim that is wraithlike in its dimensions ".
70According to the primary Judge, the parties were ultimately agreed that it was possible only to quantify damages for past economic loss " as a lump sum or 'buffer' ". Her Honour took as the basis for calculation one third of average weekly earnings for roughly eight years. This produced a figure of $100,000 as a " rough and ready ... cushion " for past economic loss.
71The appellant's claim for future economic loss failed because his circumstances were the same as they would have been had the accident not occurred. Her Honour found that the appellant would have made the same decision not to have surgery, regardless of the accident.
72The primary Judge found that the appellant's need for past domestic assistance did not meet the threshold test set by the MAC Act 1999. Since any need for future care was attributable to the appellant's neurological condition, rather than the accident, his claim in respect of future commercial care also had to be rejected.
73Her Honour awarded $31,925 in respect of past out of pocket expenses, from which $10,413 in payments made by the respondent under the Motor Accidents Compensation Act 1999 had to be deducted. A further allowance of $5000 was made for future out of pocket expenses.