Shorey v PT Limited

Shorey v PT Limited - [2003] HCA 27 - HCA 2003 case summary — Zoe

[18]

The reasoning of Davies AJA on the facts appears to us to be persuasive. The principal problem in the case, once the possibility of malingering is put to one side, lay in relating legal concepts of causation to the medical concept of a conversion disorder. The appellant, suffering from a not insignificant, but not catastrophic, back complaint aggravated by her fall, with a history of psychological vulnerability, and being subjected to further severe emotional distress, developed a condition in consequence of which her disablement became far greater than her physical problems could account for. Was the fall a cause of that condition? On the evidence, that became a difficult question of fact. Different conclusions were fairly open, and it is not surprising that the question gave rise to a division of judicial opinion. Even so, we agree with Davies AJA that the trial judge was not shown to be in error.
We would allow the appeal. We agree with the orders proposed by Kirby J.
KIRBY J. This appeal is one of a series in which challenges have been brought to this Court in respect of the appellate review of factual conclusions decided at trial by a judge sitting without a jury[1].
In the present proceedings the primary judge (Dodd DCJ) heard the action in the District Court of New South Wales. It was brought by Mrs Rose Shorey ("the appellant") against the respondents. Negligence was proved in a hearing in which that issue had been severed from the issue of damages. There is no challenge to the determination of negligence. In a second stage, the primary judge found that the appellant had suffered serious injuries, disabilities and losses as a result of the negligence. He entered judgment in favour of the appellant in the sum of $555,212.55 and made an order apportioning liability between the respondents. That judgment resulted in an appeal and cross-appeal to the Court of Appeal of the Supreme Court of New South Wales. The respondents sought a reduction in the damages to $68,911.05. The appellant, by cross-appeal, sought an increase to more than $2 million.
In the result, the Court of Appeal, by majority[2], allowed the appeal and dismissed the cross-appeal. The Court found appellable error on the part of the primary judge. It concluded that the Court of Appeal could, and should, proceed to a re-assessment, as requested by the respondents[3]. A substituted judgment was entered, in terms of the proposal of the respondents. Judgment was then entered in the appellant's favour in the sum so proposed.
By special leave, the appellant now appeals to this Court. She seeks orders setting aside the judgment of the Court of Appeal and remitting to that Court the cross-appeal which was not decided in consequence of the conclusions which that Court reached.

[19]

The background facts are stated by Callinan J[4]. The appeal from the judgment of the District Court[5] had to be decided by the Court of Appeal in accordance with the Supreme Court Act 1970 (NSW). Relevantly, such an appeal is by way of re-hearing[6]. The appellate court has the power and duty to draw inferences and make findings of fact on the basis of the record[7]. It may re-assess damages[8]. In specified cases, it may receive further evidence[9]. It is obliged to "make any finding or assessment [and to] give any judgment … which ought to have been given or made or which the nature of the case requires"[10].
The authority of this Court upon the application of the foregoing statutory provisions is contained in a series of decisions that settles the applicable law. An appeal by way of re-hearing must be "a reality, not an illusion"[11]. The appellate court must correct decisions of the trial judge found to be wrong. This includes decisions of law; but also decisions of fact. However, in respect of decisions of fact, the appellate court must perform its functions within the limitations inherent in the appellate process and in accordance with rules validly provided by law. This involves a recognition of the significant advantages of the trial judge in fact finding, especially[12] (but not only[13]) in cases in which the credibility of the parties, or of important witnesses, was in issue at the trial.
As in the other cases in the present series, the basic issue for decision in this appeal is whether the Court of Appeal erred in its application of the foregoing principles. Just as the proper functions of appellate courts in reviewing findings about the evidence have been the subject of detailed consideration in this Court, so in national courts in other common law countries the applicable principles have been explored and explained. The verbal formulae vary from one country to another, but the substance is much the same. In each case, the appellate court must respond in a principled way to the call for action to correct error, whilst at the same time observing the demand for appellate restraint consonant with the respective facilities and functions of the appellate and trial courts[14].
At first instance the present proceedings revealed that the case was an unusual one. The appellant had been injured on 2 April 1988 in a fall at a shopping centre at Blacktown, near Sydney. From this seemingly unremarkable incident she claimed that a severe and grossly disabling condition developed, resulting in profound incapacity. Such incapacity did not have a provable organic foundation. Accordingly, at trial, it was alleged for the appellant that she was suffering a conversion disorder: a psychiatric condition said to explain her debilitating symptoms and to substantiate them as genuine and serious.
The issues for trial in the District Court were: (1) whether the appellant's disability, including her alleged inability to walk, were genuine or whether she was a malingerer; (2) if they were genuine, whether the disabilities were caused by the fall found to have been occasioned by the negligence of the respondents; and (3) depending on the answers to (1) and (2), the monetary amount of the damages to which the appellant was entitled.

[20]

The primary judge rejected the respondents' contention that the appellant was a malingerer. He found that she was genuine. This was so despite some objective evidence (such as the lack of muscle wasting in her thighs and calf muscles) that gave a degree of objective support to the respondents' attack on the appellant's claims. In reaching this conclusion, the primary judge relied upon certain objective signs (calluses on the appellant's knees consistent with her claim that she was forced to crawl; as well as bizarre movements demonstrated when observed[15]). He also relied on "the way the [appellant] presented in court and the evidence of her daughter Tracey"[16].
In light of the reasons of the primary judge and consistent with authority, it became difficult for the respondents to overturn the judge's conclusion on the first issue. However, before the Court of Appeal, the respondents sought to construct a challenge based upon incontrovertible evidence so as to overcome this conclusion. In the result, that challenge was unanimously rejected by the Court of Appeal. While acknowledging that the respondents' submissions "as a matter of ordinary common sense [appear] to have considerable force"[17], Handley JA, for the majority, concluded[18] that the submissions on the first issue could not overcome "the usual obstacles presented by the principles in Abalos v Australian Postal Commission"[19]. Davies AJA agreed[20]. Accordingly, the Court of Appeal decided the first issue in the appellant's favour. That issue has not been re-opened in this Court.
The acceptance of that conclusion is not determinative of the outcome of the second issue. But it is highly relevant to it. This Court must commence its analysis of the second issue, as the Court of Appeal was bound to do, on the basis that the appellant had been injured in a fall caused by negligence and that she had suffered very severe disabilities which, although bizarre and without an apparent physiological explanation, were genuine in the sense that she was not malingering.

[21]

The second issue was determinative for the majority of the Court of Appeal. Handley JA concluded that the causal link between the fall for which the appellant sued and the conversion disorder "was not based on … findings as to credit"[21]. It was, he said, an inference which the primary judge had drawn from his primary findings with the benefit of the expert evidence to which he had referred. Accordingly, Handley JA found that this conclusion was open to review in a re-hearing in accordance with the principles in Warren v Coombes[22]. Conducting that review, his Honour concluded that it was open to the Court of Appeal to reach the conclusion that the fall in 1988 was not the applicable cause of the appellant's conversion disorder.
Nevertheless, Handley JA found that it was unnecessary to "go that far"[23]. It was sufficient "to decide on those other findings and that medical evidence that the plaintiff did not discharge the onus of proving a causal link between the fall and her conversion disorder". This was the basis upon which the majority in the Court of Appeal set aside the primary judge's assessment of the appellant's damages. In its place, their Honours proceeded to assess the damages on the footing that, in the fall, the appellant had suffered soft tissue injuries to her back involving a temporary aggravation of a pre-injury degenerative condition. As this was judged likely to have resolved within 12 months, the Court of Appeal majority reassessed the damages in the sum proposed by the respondents. It ordered that judgment be entered accordingly[24].
Davies AJA dissented. He pointed out that, at trial, counsel for the respondents had "passed very lightly over the events of 1988 and did not confront either Mrs Shorey or her daughter, Tracey, with the specific proposition that Mrs Shorey recovered during 1988 from the effects of the 1988 accident"[25]. He also pointed out that the primary judge had viewed the physical and psychological factors in 1988 (the time of the fall) and 1989 (the time of the death of the appellant's husband) as "intertwined"[26]:

[23]

In the opinion of Davies AJA this conclusion demonstrated no error on the part of the primary judge, was "well based" on medical opinions before him and "also on the facts as established by the evidence"[27]. His Honour proposed a minor adjustment of the quantification of damages but, otherwise, would have dismissed the appeal. In this Court, whilst maintaining her complaint about the quantification of damages, the appellant supported and elaborated the approach of Davies AJA. The respondents sought to uphold the approach of the majority.
Before seeking to resolve the competing submissions, it is convenient to dispose of one submission to the effect that the primary judge, having decided the issue of malingering, proceeded directly to assess the appellant's damages without addressing the second issue of causation. To the extent that this submission was pressed by the respondents, it must be rejected. This was not the way the Court of Appeal understood the primary judge's reasons. Nor, more importantly, was it the way in which those reasons were expressed.
Having resolved the issue of malingering in favour of the appellant, the primary judge went on to ask "[i]s this condition caused by the fall in 1988?"[28] This was the correct question to ask. His Honour then proceeded to answer it. In the ensuing passages in his reasons the primary judge made findings about causation on questions that loomed large in the Court of Appeal. His reasons are replete with the language of causation ("as a result"; "argue that the effects of the fall"; "caused by"). In these circumstances, any suggestion that the issue of causation was overlooked or bypassed at trial must be rejected. The issue in the appeal thus becomes whether the primary judge erred in the way he resolved the question, warranting the Court of Appeal's reversal of his conclusion.
The majority's opinion that the primary judge had erred on the causation issue was based on a conclusion, expressed by Handley JA, that the link between the fall and the conversion disorder that was postulated to explain the appellant's disabilities was not something that could depend upon ordinary lay estimation. The appellant therefore had to depend upon proof by expert medical evidence establishing the link. It was when that relevant expert evidence, called by the appellant, was examined that the flaw in the reasoning of the primary judge was said to be exposed. The evidence in question was that of Dr Phillips, a psychiatrist, whose specialty was central to proof of the aetiology of the conversion disorder. To the extent that the appellant also relied on the evidence of Dr Yeo, a consultant in spinal medicine and surgery, this could only be as strong as that of Dr Phillips - the expert with the relevant knowledge upon whom, in this respect, Dr Yeo relied.
In the critical passage in his reasons, Handley JA states[29]:

[28]

Dr Phillips agreed with Dr Yeo's earlier oral evidence that "physical trauma usually - not always but usually - played a role in precipitating problems of this sort". Over objection, Dr Phillips agreed that this opinion accorded with his own experience.
The foregoing passages appeared in the re-examination of Dr Phillips that followed the cross-examination relied upon as demolishing the effect of Dr Phillips' aetiological opinion that linked the fall with the conversion disorder. On the face of things, the concluding opinion expressed by Dr Phillips fell far short of a withdrawal of his earlier testimony. To the contrary, it represented a reaffirmation of the causal link previously stated. Moreover, it amounted to a statement that, whilst there were other "stressors", the subject fall was "of very great significance". This statement simply cannot be viewed as an expression of opinion about the possibilities. Allied with the common experience that some physical events (of which the fall was the only one identified as relevant) are often associated with a conversion disorder, Dr Phillips' summation contributed a strong reaffirmation of his opinion identifying the fall in 1988 as a cause of the appellant's disabilities.
I have read, and re-read, the cross-examination of Dr Phillips. It does contain agreement that the appellant's case was "a most difficult" one. It does bring out the causative relevance of the previous back operation undergone by the appellant in April 1986, prior to her fall. It also accepts the causative significance of the supervening death of the appellant's husband and of her feeling of guilt associated with her administration of morphine to him at about the time of his death. However, much of the cross-examination of Dr Phillips was addressed to the issue of whether the appellant was malingering. This was a theory that Dr Phillips rejected and it can now be put to rest.
However, on the issue of the precise sequence of events after injury, following her husband's death and up to the date of the trial, Dr Phillips agreed to the cross-examiner's question:

[30]

It is difficult to know what else Dr Phillips could say to such a question. An expert would normally welcome the chance to elaborate the recorded history and to clarify questions and doubts stated, or hinted, in cross-examination. Dr Phillips did state that the questioner was "perhaps even a little bit more optimistic than I would be" that such a further consultation would clear away all doubts. In short, he would welcome a chance to "sit down and work through all that with her", as the cross-examiner put it. But such agreement scarcely constituted a withdrawal of his earlier opinion. Obviously, the trial judge did not understand it to be so. It was not so stated in express terms. The answers in re-examination contradict that interpretation.
The search for a single cause: It is a basic principle of the law governing the recovery of damages that a claimant does not have to prove (as Dr Phillips seemed at first to assume was the law) that an impugned event was "the" cause, in the sense of the one and only cause. It is enough that the claimant shows that the event is "a" cause of the condition for which damages are claimed[33]. The fact that the appellant had undergone a laminectomy and discectomy of her spine in 1986 (before the fall) that she was of an age where deterioration in the condition of her spine might be expected to some degree, and that she also suffered grief and a sense of guilt following the death of her husband from lung cancer in January 1989 (after the fall) did not rule out the consequences of the fall as "a" relevant cause in the subsequent disability. In a sense, the back operation (which was reported as successful, following which the appellant was pain free until the fall) and the death of her husband simply rendered the appellant more susceptible to the consequences of the fall.
Certainly, that was a view open to the primary judge. It is the one that he preferred to that urged by the respondents, namely that a pre-existing back disability was aggravated for a limited time or that any aggravation was well on the way to recovery when the death of the appellant's husband, with consequent grief and sense of guilt, precipitated the conversion disorder of which she complained. There is more than a hint in the reasoning of the majority in the Court of Appeal of a search for a single cause of the appellant's disability whereas the applicable law and the relevant facts contemplated that this was a case of multiple causes in which the fall and its outcomes could only be really understood in the context of events that happened before and after, rendering the appellant more susceptible to the kind of disability that in fact resulted.
Discerning the operation of multiple causes: Whereas it was for the appellant to prove her case, and although the burden remained upon her as plaintiff throughout the trial to establish that her condition of conversion disorder was caused by the fall, the appellant started with certain advantages in her endeavour to do this. The evidence supported the conclusion that she had made a good recovery from her back operation prior to the fall. The occurrence of the fall was clearly established. Its trauma was such as to produce injuries and disabilities. Malingering on the part of the appellant was ruled out. In this context, the appellant was entitled to invoke a principle of law and an evidentiary presumption that helped her to support the conclusion reached by the primary judge.
The principle of law is that a negligent defendant must take its victim as it finds her and must pay damages accordingly[34]. It is not to the point to complain that the injury, in the form of the fall, was trivial in itself and that it would be unfair to burden the respondents with the obligation to bear costs consequent upon the fact that the appellant was peculiarly susceptible to developing bizarre symptoms inherent in a conversion disorder. If such symptoms were genuine and a consequence of the subject trauma, the apparent disproportion between cause and effect is not an exculpation for the negligent party. It does not render the damage "unforeseeable" or otherwise outside the scope of the damages that may be recovered. As Dixon CJ explained in Watts v Rake[35]:

[34]

The other judges in Watts agreed with Dixon CJ's approach[38]. The principles so stated have been re-stated by the Court since then[39]. They are settled doctrine. They were not contested in this appeal. Indeed, they represent no more than the application of common sense to decisional reasoning. If it be the case that these principles were not expressly relied on at trial or in the Court of Appeal, it matters not. They are simple rules, applicable to judicial reasoning, whether at first instance in a trial, or in a re-hearing on appeal when the issue concerns the effect on damages of multiple causes.
In the present proceedings the foregoing principles had the consequence that, whilst the appellant carried throughout the burden of proving the occurrence of the fall and that it had consequences for her which continued to cause her disabilities and loss, in so far as the respondents asserted that some other cause or causes (the pre-accident spinal operation, the constitutional deterioration of the spine or the post-accident grief and guilt feelings) had taken over as the explanation of the disabilities and losses, the evidentiary obligation to establish such a proposition rested upon it. The appellant was not obliged to disprove the relevance of the supervening causes or their incapacitating consequences.
The burden of disentangling the ongoing operation of multiple causes (the "multiple stressors" to which Dr Phillips referred in his evidence) was upon the respondents if they wished to assert that other causative agents had taken over as the sole or the effective cause of the appellant's damage. One such effort by the respondents failed, namely the attempt to show that the real cause of the appellant's disabilities and loss was deliberate malingering on her part. In my view, the other hypothesis equally failed. No alleged recantation by Dr Phillips was established during cross-examination or otherwise to justify the contrary conclusion as expressed by the majority in the Court of Appeal.
Misreading the judge's assessment of the evidence: The opinion expressed by Handley JA was that the fall in 1988 caused only a "temporary aggravation"[40] of the appellant's degenerative condition of the spine. His Honour suggested that this opinion was in accordance with the primary judge's findings. With respect, Handley JA misread the primary judge's findings in this regard. The primary judge said that the appellant had initial severe back pain continuing for approximately 12 months, but that there had been a continuing consequence of the fall in the form of recurrences "from time to time". Contemporaneous records in 1988, prior to the death of the appellant's husband, showed that the appellant was then having difficulties in walking. Moreover, as Davies AJA noted, the appellant's daughter, Tracey, gave evidence that the appellant's condition steadily got worse after the accident. The primary judge said explicitly that he accepted such evidence and took into account the way the appellant and her daughter presented in court[41].
Moreover, as Davies AJA pointed out, it was not explicitly put to the appellant or her daughter that the appellant had effectively recovered from the temporary aggravation caused by the fall when she was propelled into bizarre symptoms by grief and feelings of guilt brought on by the death of her husband and its circumstances. Whether or not such a course of questioning was required by procedural fairness or otherwise, the failure to put the proposition directly to the appellant and her daughter at trial, so as to give them the chance to respond, weakened the significance of the argument that such an interpretation of events should be preferred on appeal. In my view it should not have been.

[35]

It follows that, for reasons substantially similar to those expressed in the Court of Appeal by Davies AJA, I would conclude that that Court was not warranted to disturb the findings of the primary judge on the second issue at the trial, causation. The foundation for that step, as stated in the reasons of Handley JA was, with respect, mistaken. No other basis is demonstrated to support the conclusion on another footing. None of the respondents filed a notice of contention or relied upon a different basis to sustain the judgment of the Court of Appeal. That judgment must therefore be evaluated in terms of the reasons given by the majority to sustain it.
Even if I had come to the conclusion that the appeal to the Court of Appeal was bound to succeed (for example because of unsatisfactory reasoning by the primary judge in failing to address specifically the suggested force of the cross-examination of Dr Phillips) this would not, in my opinion, have been a case in which the Court of Appeal was entitled to substitute its own assessment of the appellant's damages for that arrived at in the trial[42]. There were, in addition to Dr Phillips, a number of witnesses whose evidence needed to be given weight in judging the duration of any disability caused by the fall, most notably the appellant herself and her daughter. The Court of Appeal had seen neither give evidence, yet their evidence was important, even perhaps critical. In such circumstances the most that the respondents could properly have hoped for was a retrial in which the alleged defect in reasoning at the trial was addressed and all of the evidence fully weighed and subjected to improved judicial reasoning. I see no defect in the primary judge's reasons sufficient to warrant such criticism and consequential relief.
The conclusion reached by the majority in the Court of Appeal appears to have diverted that Court from examining the particular complaints of the respondents, as appellants in that Court - such that related to the issue that led Davies AJA to propose an adjustment to one item in the composition of the damages. The Court of Appeal needed to assess the correctness of the complaints of the appellant on the footing that the general attack upon the damages, grounded in the arguments of malingering and causation fail, as in my opinion, they do. Because it is necessary for the cross-appeal to be heard and determined by the Court of Appeal, it seems appropriate to require that the appeal and cross-appeal both be returned to the Court of Appeal to be heard and determined conformably with these reasons.

[37]

The appellant was 56 years of age in April 1988 when she suffered an injury in a fall in circumstances which gave her a right of action in which she succeeded in the District Court on the issue of liability, and, in a subsequent hearing (Dodd DCJ), on the issue of her damages which were assessed in the sum of $555,212.55 in February 2000.
The appellant believed that she became unconscious for a period after the fall. On recovering consciousness she experienced pain in her back and her legs. When she was discharged from hospital three weeks later the pain had abated to some extent. She was able to walk. She took painkillers and rested to ease the pain in her lower back. She was able to do some housework, to drive, and to shop. She had no need of a walking stick. Her right leg did not trouble her unless she walked too far. If she did, she noticed a tired feeling in it, and numbness.
The appellant continued to experience back pain. She was examined by a number of orthopaedic specialists and underwent several diagnostic procedures over the years. She also had consultations with psychiatrists. She began to use one walking stick and then two.
By July 1992 she was using a walking frame, and in early 1993 she started to use a wheelchair.
At the date of trial the appellant was not walking. She managed to move by using her arms and also her legs to crawl in a way which left calluses on both knees. There was no apparent physiological reason why she could not walk.
The first issue to which the primary judge directed himself was whether the appellant was deliberately malingering, or whether a genuine psychiatric condition was operating at a subconscious level to prevent her from walking. The second was, if the condition were genuine, what was the prognosis? The third issue was, if it were genuine, was it attributable to the fall in April 1988? As will appear the question in this appeal is whether the primary judge satisfactorily considered and answered that question.
The appellant's husband's health severely deteriorated in 1988. He was diagnosed with cancer and died on 1 January 1989. The appellant experienced guilt associated with his death and her administration of morphine to him, but said (in evidence) that she no longer felt guilty after about six months.
The appellant's evidence at the trial was that her own health began to deteriorate from about this time. On 5 April 1992 she had woken in the early hours of the morning with pain throughout her body. She was unable to move. One of her legs was twisted over the other, and she could straighten neither. It was necessary for her daughter to assist her. An ambulance was called and she was taken to Blacktown Hospital. There she had a CT scan, rested in bed, took analgesics and underwent physiotherapy including traction. She was gradually mobilised and was discharged on 11 May 1992. She continued to have physiotherapy after discharge.
The appellant was admitted to hospital again in September 1993 for eight days, and in October for 18 days. She was treated with bed rest, physiotherapy and analgesics. On discharge, on each occasion there was no improvement. Since then she has been treated with analgesics.
This apparently simple trajectory of deteriorating health and capacity is however complicated by the presence of a number of other factors. In cross-examination the appellant conceded that a stomach ulcer with which she was afflicted pre-dated the fall, and was not caused by it. She also conceded that in 1978 she had begun to lose the use of her right leg and to develop pain across the lower back. She agreed that there was significant family disharmony after her husband's death, indirectly related to money. A dispute about the family home which was in the name of her husband and a daughter erupted. She believed that on her husband's death she would continue to live in the house. The appellant came to think that she was being turned out of the home. About three months after her husband's death the appellant was able to drive to Queensland and back. She was away three weeks. She was able to move and walk around during that period.
The trial judge summarized the extensive medical evidence in this way:

[106]

It is true that from time to time the witness used the language of possibility only. The unmistakable tone of his answers however is of uncertainty induced by an incomplete knowledge of the relevant facts. It is also possible to detect an unwillingness to concede that an important basis for his conclusion had been significantly eroded. That Dr Phillips only became aware the previous night of the appellant's concern about the administration of morphine to her husband as he was dying has an additional significance to its central importance to his diagnosis. It reflects on the appellant's reliability, and on her history of her symptoms and claims. As the plaintiff, she bore the onus of proving her damages. Uncertainty or selectivity in her claims inevitably weakened her case.
But in any event I find it impossible to accept that the cross-examination resulted in no more than a concession of a possibility of a misdiagnosis by Dr Phillips. It undermined the very foundation of his opinion which was of a course of generally consistent complaints by the appellant, and an explicit disavowal by her of any remnants of disabling distress as a result of her husband's death and the circumstances of it. The wide cracks which opened in Dr Phillips' evidence in cross-examination were not repaired by the quite unconvincing re-examination following it, a deal of which was the subject of leading questions. The primary judge made no reference to the evidence in cross-examination to which I have referred. It was of critical importance to the validity of Dr Phillips' diagnosis. A judgment which relied heavily on Dr Phillips' evidence but made no attempt to deal with this damaging cross-examination was necessarily incomplete, and, in my opinion flawed for that reason. Furthermore, Dr Phillips was not the only medical specialist forced to retreat from an earlier confident diagnosis by reason of the appellant's failure to give a full and accurate history of her condition, relevant events and complaints, as some of the passages from the judgment of Handley JA which I have quoted exemplify.
Having regard to the matters that I have mentioned the Court of Appeal was right to intervene as it did.
The respondents' other submission should also be accepted: that the conversion disorder found by the trial judge should have been regarded as a supervening cause as in Jobling v Associated Dairies[48]. The principal focus of the trial judge was on the issue whether the appellant was a malingerer or not. That was an issue at the hearing but was not one which, if resolved in favour of the appellant, was determinative of the issue of causation. The main issue remained, whether the appellant's condition, whatever its nature or extent, genuine or otherwise, was caused by the appellant's fall, for which the respondents were responsible. Having regard to Dr Phillips' evidence in cross-examination that issue should have been resolved in the respondents' favour. The best that could be said for the appellant was that she failed to prove that her present condition was caused by the fall.
The respondents accepted that in principle there was relevantly no distinction between a pre-existing and a supervening contributory case. But, they submitted, correctly, no argument had been advanced at any stage by the appellant that the respondents had failed to disentangle the various components of the appellant's condition and their respective causes as required by the rule stated in Purkess v Crittenden[49]:

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