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[1960] HCA 58
appellant. Appeal allowed with costs. Order of the Supreme Court varied by substituting judgment for £16,669 5s. 10d. in place of judgment for £12,669 5s. 10d.
A 27-year-old engineer who had managed a mild rheumatic condition successfully was injured in a car crash. The injuries triggered a rapid and catastrophic worsening that left him permanently crippled, in constant pain and unable to work. The trial judge decided the crash had merely brought forward by some years a disability that would have happened anyway and awarded damages on that basis. The High Court ruled that once the plaintiff proves a dramatic deterioration after the accident it is for the defendant to prove any alternative explanation and, if the accident only accelerated an inevitable disease, exactly when the same end state would have been reached without the crash. Because the defendant had not proved a shorter acceleration period, the plaintiff was entitled to damages for the full loss of what might have been thirteen years of active, productive life. The general damages were increased from £8,000 to £12,000.
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The appellant, Mr Watts, was a qualified engineer employed by the State Electricity Commission of Victoria in field work. At the age of 27 he was involved in a motor-car collision on 24 December 1955. The respondent's negligence was not contested. The injuries sustained were serious: a fracture of the right femur just above the knee, a badly injured left leg, and a gashed face. Hospital treatment lasted almost two years. The right leg required two operations and was placed in plaster five times; it is now shorter than the left. The left leg was subjected to repeated traction, physiotherapy, and manipulation under general anaesthetic. The appellant developed uveitis choroiditis treated with cortisone, which produced a “moon face”. By the time of trial he could hobble only with crutches, could not sit properly, suffered stiffness in hips and spine, ankylosis of the right knee at 40 degrees, swelling and crepitus in both knees and ankles, restricted ankle movement, and blurred vision in one eye. He could not sleep on his back and experienced constant aching. Medical opinion was unanimous that his physical condition would not improve and was likely to deteriorate, requiring lifelong treatment. He was permanently unfit for field engineering or regular design work and could not return to the State Electricity Commission.
Before the accident the appellant had suffered rheumatic fever at age 14, right-knee trouble diagnosed as osteoarthritis with rheumatoid complications and chronic synovitis at age 17, and a synovectomy. The knee remained slightly restricted and larger than the other. Nevertheless, the appellant gave evidence, accepted at trial, that he had lived an active life, working in the field, swimming, surfing, bush-walking, skiing and dancing. The trial judge, Mansfield CJ, found that the accident had accelerated the development of an underlying disease whose symptoms had already begun to appear. He was not satisfied on the balance of probabilities that all the appellant’s present disabilities were due to the accident injuries. Special damages for lost wages to trial and out-of-pocket expenses totalled £4,669 5s. 10d. General damages were fixed at £8,000. On appeal the High Court (Dixon CJ, Menzies and Windeyer JJ) concluded that the defendant had not discharged the burden of proving that the same condition would have been reached within any shorter period than ten to thirteen years and that the award did not adequately compensate for the lost span of active life. General damages were increased to £12,000, producing a substituted judgment of £16,669 5s. 10d.
The court’s reasoning rests on a clear allocation of the legal and evidentiary burdens concerning proof of damage. Dixon CJ emphasised that the plaintiff carries the legal burden of proving both the fact and the quantum of damage suffered. That burden remains on the plaintiff throughout. However, once the plaintiff shows that damage of a particular kind or degree has been caused by the tort, the defendant who asserts that the plaintiff could have mitigated the damage or that the damage is partly due to other causes bears the burden on those issues. In the present case the plaintiff had proved a radical change from an active, enjoyable life to a pitiable, crippled state. That proof raised a presumption of fact that the accident was the cause. The defendant then had to overcome that presumption by disentangling any disabilities not attributable to the accident and by proving both that the plaintiff would inevitably have reached the same condition without the accident and the date by which that would have occurred.
Menzies J reinforced the point by noting that, prima facie, a change from apparent good health before an accident to bad health afterwards is taken to be a consequence of the accident. It is for the defendant to prove some other explanation. The defendant must also prove that a pre-existing condition would, without the accident, have led to the post-accident state of health and must prove the extent of any acceleration. The trial judge’s reasons contained passages suggesting that the plaintiff was required to negate the possibility that he would have become disabled anyway. That approach reversed the onus. Although the trial judge ultimately accepted Dr Nelson’s evidence that the underlying ankylosing spondylitis would have produced equivalent incapacity within ten to thirteen years, the award of only £8,000 general damages did not give proper effect to the loss of that entire span of working life, amenity and earnings between ages 27 and 40. Dixon CJ added that even if the plaintiff would have become disabled earlier than the average man, the defendant had not proved that the disability would have been the same as that produced by the accident. The court therefore fixed general damages at £12,000, a figure Dixon CJ did not regard as high in the circumstances. Windeyer J agreed without adding reasons.
The decision therefore turns on the interaction between legal burden, evidentiary presumptions of fact, and the principle that a defendant must take the victim as found. The seriousness of the injury is measured by its actual consequences for the particular plaintiff, not by what would have happened to a person without the pre-existing vulnerability.
Before Watts v Rake the law was clear that a plaintiff must prove damage caused by the defendant’s wrong and that a defendant could lead evidence in mitigation. What was less clearly articulated was the precise location of the onus when a pre-existing condition was said to explain part or all of the post-accident disability. Courts had long accepted that a defendant takes the plaintiff as found; the one-eyed man or one-legged man illustrations were familiar. Yet trial judges sometimes required plaintiffs to prove that they would never have reached the disabled state absent the accident. The judgments in Watts v Rake expressly correct that tendency. Dixon CJ and Menzies J stated that once the plaintiff proves a causal connection between the accident and the onset or worsening of disability, the defendant must prove any alternative causal explanation and must prove the timing of any acceleration of an inevitable condition. The defendant must “disentangle” the effects and cannot simply point to the existence of a pre-existing disease.
After the decision the law contained a more explicit presumption of fact operating in the plaintiff’s favour once a marked deterioration is shown. The onus placed on the defendant to prove both the existence of independent causes and the precise period of acceleration became a settled part of the jurisprudence on quantum in personal injury cases involving degenerative or latent conditions. The articulation of the distinction between legal burden (always on the plaintiff) and evidentiary burdens arising from presumptions of fact clarified how courts should handle shifting states of the evidence. The decision also confirmed that damages are assessed according to the actual consequences for the particular plaintiff, including the acceleration of symptoms that a more robust person might not have suffered.
Dixon CJ’s observation that “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…” translates to: once the plaintiff shows the accident made him much worse, the defendant cannot simply assert “it would have happened anyway”. The defendant must produce evidence that separates the accident’s effects from everything else.
The one-legged-man passage reads: “To sever the remaining leg of a one-legged man or put out the eye of a one-eyed man is to do a far more serious injury than it would have been had the injured man possessed two legs or two eyes. But for the seriousness of the injury the defendant must pay.” In plain language this means the law does not reduce damages because the plaintiff was already vulnerable. The defendant pays for the full harm actually inflicted on this plaintiff.
Menzies J stated: “Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it.” This is the court saying that if someone was coping well before the crash and is crippled afterwards, the natural assumption is that the crash caused it. The insurance company or defendant must prove any other story.
The trial judge’s finding that he was “not satisfied on the balance of probabilities that if the accident had not taken place, the plaintiff would have continued to live a normal healthy life free from any disability” was read by Menzies J as erroneously placing part of the defendant’s onus onto the plaintiff. The High Court corrected that misallocation.
The precedent is engaged whenever a plaintiff who was managing a latent or mild degenerative condition suffers trauma that produces a dramatic and permanent worsening. Typical triggers include road accidents causing fractures near weight-bearing joints in a person with pre-existing osteoarthritis or spondylitis; workplace injuries aggravating a previously asymptomatic spinal condition; or falls that accelerate arthritic change in an older plaintiff who had been active. The key factual ingredients are: (1) evidence of a pre-accident life that was substantially unimpaired despite the underlying disease; (2) clear medical evidence linking the trauma to a rapid deterioration; (3) conflicting medical opinion on whether the end-state was inevitable and, if so, when it would have occurred; and (4) a defendant who seeks to reduce damages by asserting acceleration or independent causes. In such cases the plaintiff need not disprove that the same end-state would have been reached; the defendant must prove both the fact and the timing of any acceleration. The precedent applies with equal force where the plaintiff’s pre-existing susceptibility makes the consequences of otherwise modest injuries far more serious.
The judgment itself records that the Chief Justice at first instance had been particularly impressed by Dr Nelson’s evidence and had accepted it. The High Court did not disturb that finding of fact but held that the legal consequences drawn from it were insufficient. Dixon CJ and Menzies J both treated the case as requiring a “proper application of the principles by which courts are guided in handling proof of facts of such a kind”. The reasoning therefore presents itself as a restatement and clarification of existing principle rather than a radical departure. The court’s insistence that presumptions of fact may arise during the trial and may cast an evidentiary burden on the defendant is presented as orthodox. Windeyer J’s concurrence without separate reasons indicates that the three members of the court regarded the propositions as uncontroversial once the evidence was properly analysed. The decision therefore stands as an authoritative application of the eggshell-skull rule and the disentanglement principle to the particular evidentiary contest between general practitioners and specialists about the nature and prognosis of ankylosing spondylitis. The emphasis on the defendant’s burden to prove the period of acceleration is offered as a logical consequence of the prima-facie causal presumption that arises when a plaintiff moves from apparent good health to serious disability after trauma.
The judgments leave open exactly how a tribunal of fact should quantify the “period of acceleration” when medical evidence speaks only of a range of years rather than a precise date. Dr Nelson’s evidence was that “within a ten to thirteen years’ period” further involvement would have occurred. The court inferred that the plaintiff might have had thirteen years of working life before disablement, but acknowledged that the evidence was “by no means precise as to when this would have occurred or whether it would have occurred suddenly or gradually”. Future cases must therefore decide how to value a lost period that is expressed as a bracket.
A further open question is the interaction between the burden of proof and the assessment of general damages for pain and suffering when the plaintiff’s pre-existing condition would have produced some symptoms but not the same intensity. Dixon CJ noted that the defendant had not proved that the plaintiff would have reached “the same disability”. The precise degree of difference that must be shown before a court refuses to discount damages remains a matter of factual evaluation.
The judgments also note that questions of mitigation by surgery “may do so; for example if the plaintiff declines to submit himself to some surgical procedure or medical treatment”. The allocation of onus in that context is flagged but not resolved. Finally, the court did not explore the position where the pre-existing condition is itself the product of an earlier tort; whether successive tortfeasors’ liabilities can be apportioned on an acceleration basis is left for later decision. These areas continue to require careful analysis of the evidence against the principles stated in Watts v Rake.
High Court of Australia Dixon C.J. Menzies and Windeyer JJ. Watts v Rake [1960] HCA 58
ORDER Appeal allowed with costs. Vary the order appealed from by substituting a judgment for £16,669 5s. 10d. for the judgment for £12,669 5s. 10d.
I have had the advantage of reading the judgment prepared by Menzies J. in whose conclusion and reasoning I agree. The case however contains a somewhat unusual problem in the shifting presumptions of fact in relation to proof of damage and on that subject I will add some observations of my own. The law of course places upon a plaintiff who sues in tort for unliquidated damages the burden of satisfying the tribunal of fact of the damages he has suffered both special and general and of the quantification in money that should be adopted in the sum awarded. That is the legal burden of proof which rests upon him throughout. Only in one respect is the burden of proof upon the defendant and this is when he sets up matter in mitigation of damages. If it appears satisfactorily that damage in a particular form or to a particular degree has been suffered by the plaintiff as a result of the wrong but the defendant maintains that the plaintiff might have avoided or mitigated that consequence by adopting some course which it was reasonable for him to take, it seems clear enough that the law places upon the defendant the burden of proof upon the question whether by the course suggested the damage could have so been mitigated and upon the reasonableness of pursuing that course. Probably in claims for damages for personal injuries a question of the burden of proof in mitigation of damages is unlikely to arise often in any serious form. But it may do so; for example if the plaintiff declines to submit himself to some surgical procedure or medical treatment. But while the foregoing are the burdens of proof which the law places upon the parties, states of fact may be proved by the evidence as the case advances or may appear as inferences which the evidence supports and those states of fact may authorize or even demand findings in favour of a party unless and until some further or other state of fact is made to appear by evidence. There are, in other words, presumptions of fact as well as presumptions of law.
In the present case a proper application of the principles by which courts are guided in handling proof of facts of such a kind goes a long way to meet its difficulties. The plaintiff showed satisfactorily that, although not without disabilities, he was before the accident able to lead an active life both in work and in physical recreation and that his enjoyment of life was not impaired much, if at all. He proved further that the physical injuries he sustained in the accident had been a cause of the crippled condition in which he finds himself, a condition described in the judgment of Menzies J. If no more appeared it needs no argument to show that he should receive a full award of damages assessed on the footing of what he has suffered and what he will endure in the future. But for the defendant it is answered, first that he was predisposed to many or at least some of the arthritic and other conditions which have so seriously and rapidly developed as a consequence of the accident considered at all events as a precipitating cause; second, that part of his present condition is traceable to causes other than the accident, and thirdly, that had there been no accident he would eventually and prematurely have been incapacitated by the seeds of disability within him. Now as to the first answer, it may at once be said that it is no answer. If the injury proves more serious in its incidents and its consequences because of the injured man's condition, that does nothing but increase the damages the defendant must pay. To sever the remaining leg of a one-legged man or put out the eye of a one-eyed man is to do a far more serious injury than it would have been had the injured man possessed two legs or two eyes. But for the seriousness of the injury the defendant must pay. As to the second and third of these answers, there is undoubtedly a presumptio hominis in the plaintiff's favour which any tribunal of fact should insist that the defendant should overcome. 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. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred. For myself I do not think that he has proved more than that at an earlier time than other men the plaintiff would have reached a stage of disability but not the same disability.
I concur in fixing the general damages at £12,000 but I do not regard that as a high figure in the circumstances.
In an action tried by Mansfield C.J., the appellant, who was plaintiff, obtained judgment for £12,669 5s. 10d. damages for injuries and loss which he suffered in a motor car collision which the respondent, who was defendant, did not contest was caused by his negligence. The damages awarded were made up as follows: Loss of wages from the date of the accident (24th December 1955) until trial (16th July 1959) £ 4,583 0 0 Various out of pocket expenses £ 86 5 10 General damages £ 8,000 0 0 £ 12,669 5 10.
This appeal is concerned with the amount awarded by way of general damages, and the appellant's contention that having regard to the onus of proof and to the evidence as a whole, larger damages should have been awarded was put in two ways: first, that the learned trial judge was in error in assessing damages on the footing that the accident did no more than accelerate the appellant's complete disablement from a previously existing disease, namely, ankylosing spondylitis; secondly, that even on the footing that the appellant was suffering from a disease that would eventually completely incapacitate him, the evidence most adverse to him was that such incapacity would not take place until from ten to thirteen years after December 1955, so that £8,000 general damages was inadequate having regard merely to loss of earnings during such a period, quite apart from compensation for pain, suffering and the virtual loss of a span of active and satisfactory living of up to thirteen years from the age of twenty seven - the appellant's age when the collision occurred.
There is, unfortunately, no doubt about the appellant's post-accident condition. The injuries he suffered included a fracture of the right femur just above the knee, a badly injured left leg and a gashed face. Hospital treatment extended over a period of almost two years. Two operations were performed upon the right leg and it was five times put in plaster - it is now shorter than the left leg. The appellant's left leg was put in traction several times and given several courses of physiotherapy. He developed uveitis choroiditis, and for this he was treated with cortisone, which caused him to become what is described as "moon faced". His left leg and his hips were manipulated under a general anaesthetic. His Honour summed up his present condition as follows: "His present condition is that he is very disabled and unable to move freely. He can hobble with crutches and cannot sit down properly. His spinal movement and flexion are free but the lower portion of his spine is stiff. His hips are stiff and he can move them from about the 70 degree angle to about the 140 degree angle. His right leg is wasted. He has a scar 10 inches long on his right thigh and a scar over the left iliac crest and the groin. His right knee is ankylosed at 40 degrees and his left knee moves from about 33 degrees to 110 degrees. His left knee is swollen and thickened and hot to touch and has crepitus. The right patella is not moveable and the left one slightly moveable. Both ankles are swollen and stiff. His right ankle moves from about 75 degrees to about 90 degrees. His left ankle moves from about 70 degrees to about 100 degrees and there is crepitus in the joint. Four toes of the right foot are ankylosed and the second toe of the left foot is stiff. He has blurred eyesight in his right eye due to uveitis choroiditis. He cannot sleep on his back and his knee and hip joints ache if he stays in the same position for any length of time. Owing to the stiffness of his hips, the plaintiff cannot sit properly on a chair. He has a moon face resulting from cortisone treatment. His physical condition will not improve and will probably deteriorate and he will require treatment for the remainder of his life." When he was injured, he was a fully qualified engineer employed by the State Electricity Commission of Victoria in a field job at a salary of about £1,200 per annum, net, and his Honour found: "He will never be fit for field work nor will he be able to carry on a regular job at designing and his condition will not improve and is likely to become worse. It has also been established that he will not be able to resume any employment with the State Electricity Commission".
The state of his health before the accident is less certain. He had rheumatic fever in 1942 when he was fourteen years of age and three years later he had trouble in his right knee, which was diagnosed as osteoarthritis with some rheumatoid complications and chronic synovitis. Later his right knee was opened and a synovectomy performed. Thereafter the movement of the right knee was a little restricted and the right knee remained larger than the other. The plaintiff's own evidence was that prior to the accident he had lived an active life - working in the field, swimming, surfing, bush walking, skiing and dancing.
The medical evidence was conflicting, even about the disease from which the appellant is presently suffering. Dr. Nelson, Dr. Gallagher and Dr. Hirschfeld consider that he is suffering from ankylosing spondylitis. Dr. Lahz and Dr. Neill think he is suffering from osteoarthritis and rheumatoid arthritis and that he is not suffering from ankylosing spondylitis. Dr. Lahz considers that the appellant's present condition is due to the violence done to the knees and hips in the accident which caused the appellant's osteoarthritis and rheumatoid arthritis to flare up. Dr. Neill is of the same opinion. Dr. Hirschfeld and Dr. Gallagher consider that as a result of the accident, there has been gross aggravation of the ankylosing spondylitis and the rheumatoid arthritis from which the appellant was suffering and consider that, had there been no accident, the appellant might not have reached his present condition. Dr. Nelson's evidence was that, even had there been no accident, it is probable that within a ten to thirteen years' period from December 1955 the appellant would have had further involvement from ankylosing spondylitis and the injuries did but accelerate the development of the disease which would in any event have brought the appellant to his present crippled condition.
The Chief Justice, who had the advantage of seeing and hearing the medical evidence, was particularly impressed by Dr. Nelson's evidence, which it is apparent his Honour accepted. His Honour's findings, after a review of the medical evidence, were as follows: "I therefore am not satisfied on the balance of probabilities that all the plaintiff's present disabilities are due to the injuries which he received in the accident. It is clear that the injury and the operations performed on his right leg, with the associated pain and suffering and discomfort, are the direct result of the accident. My view is that the injuries which he received in the accident had the effect of accelerating the development of the disease some of the symptoms of which were showing at the time of the accident. I consider that the plaintiff in the ordinary course of events would have had some years of full active employment and that thereafter there would have been a deterioration in his physical condition."
It was proved that the appellant was a satisfactory member of the staff of the State Electricity Commission of Victoria and that, had he remained in the employment of the Commission, he would probably by now be a Grade III Engineer on a salary ranging from £32 9s. 6d. per week to £35 14s. 6d. per week, gross. Had he progressed as he had started and continued in good health, further promotion would have been open to him through Grade IV to the Senior Officers' group, but even in the most favourable circumstances he would not have become a Senior Officer until he was forty years of age.
It was for the appellant as plaintiff to prove his damages, and merely to prove his present condition and his incapacity to work would not prove that these things resulted from the accident. It was not, however, for the plaintiff to disprove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, e.g., that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health. Such a case is not unlike that of a defendant in a defamation action proving in reduction of damages that the plaintiff had a bad reputation. It should also be observed that a negligent defendant must take his victim as he finds him and pay damages accordingly. The fact that the person injured was peculiarly susceptible to ensuing complications that would not in a normal person have followed from the injuries received, or that the person injured already had a disability which made the injury the more disabling - e.g., the loss of an only eye - does not mean that damages are not to be assessed according to the circumstances of the particular case. There are passages in the judgment here under consideration that are susceptible of meaning that the appellant had at the trial to establish not only that his present condition was due to the accident but, further, that he would never have reached that condition had it not been for the accident, whereas it was for the respondent 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. Thus, for instance, his Honour said: "On the whole of the evidence before me, I am not satisfied on the balance of probabilities that if the accident had not taken place, the plaintiff would have continued to live a normal healthy life free from any disability arising from the disease which there is evidence that he had prior to the accident." This passage seems to me to indicate that, in some measure at any rate, an onus which lay upon the defendant was given to the plaintiff, but in the circumstances that his Honour accepted the evidence of Dr. Nelson of acceleration by up to thirteen years of an existing condition, the question where the onus lay is not one that is important at this stage of the proceedings.
The effect of the evidence of Drs. Lahz, Neill, Hirschfeld and Gallagher was that the accident caused the flaring up of the appellant's condition of osteoarthritis or rheumatoid arthritis or ankylosing spondylitis; but whereas they did not consider that without the accident the appellant would have become as he is, Dr. Nelson, whose evidence the learned Chief Justice preferred, considered that he would have done so within a period of thirteen years. Whatever nice questions might have arisen had the evidence of the other doctors been preferred to that of Dr. Nelson, they do not arise here, and I consider the first way in which the appeal was put - i.e., that the accident itself caused a condition that might not otherwise have occurred notwithstanding the appellant's susceptibility - fails because the learned trial judge accepted the evidence of Dr. Nelson, and there is not sufficient ground shown for this Court to revise that finding.
Dealing with the appeal, therefore, on the basis of the evidence of Dr. Nelson, it is to be observed that although his opinion was that the appellant was suffering from ankylosing spondylitis and that this would eventually have brought him to be as he now is, his evidence is by no means precise as to when this would have occurred or whether it would have occurred suddenly or gradually. Dr. Nelson goes no further than saying that within a ten to thirteen years' period from December 1955 a further involvement in the disease would have taken place in any event. From this evidence it is, I think, fair to infer that the appellant might have had thirteen years from 1955 before he was disabled, and although incapacity after that period could be attributed to the disease itself, incapacity before that period can properly be attributed to the accident. In these circumstances, I think damages ought to have been assessed on the footing that the appellant's pre-accident condition was such that he had thirteen years of working life after 1955, and that the appellant lost the span of thirteen years between twenty seven and forty with its earnings, its interests and its pleasures - thirteen years that might be considered the more precious because his years of vitality were in any event to be so few. In their place the appellant is likely to have thirteen years empty of all but pain and frustration except to the extent that, with a crippled body, he may yet courageously fashion a new life for himself.
The case is a difficult one, but it is one where the award of £8,000 general damages, even when taken in conjunction with the £4,583 awarded as special damages for loss of wages, does not, I think, give full effect to the evidence of the appellant's loss and injuries, and I consider that this Court should substitute a figure of £12,000 for that adopted by the learned trial judge.
In my opinion, this appeal should be allowed and judgment for £16,669 5s. 10d. substituted for that for £12,669 5s. 10d.
Watts
Rake
Appeal allowed with costs. Order of the Supreme Court varied by substituting judgment for £16,669 5s. 10d. in place of judgment for £12,669 5s. 10d.