S. BLOME" [emphasis added]
34 While the MRI scan refers to the respondent as "the patient with arm pain" it will be noted that there is no mention of neck pain or neck symptoms. Moreover the report is entirely unremarkable in describing degenerative changes, not themselves severe, at C5/6 and C6/7, as could be expected in a person around the age of 50.
35 Much was sought to be made by the appellant of the fact that the respondent had not voluntarily produced any documentation explaining how the 1998 MRI scan came to be undertaken. If one accepts the respondent's evidence that she had no recollection of the MRI scan, as did the trial judge who found her an honest witness, it is difficult to see how this really assists the appellant. It is true that the appellant's solicitors could have availed themselves of the information concerning the MRI scan and made enquiries such as from her then treating doctor or of Royal North Shore Hospital to see if there was a referral notice. But accepting that this information only emerged at trial, further information could still have been sought thereafter during the trial (which took place between 7 April 2005 and 3 June 2005).
36 A further point which the appellant relies upon is the supposed lack of credibility in the respondent's evidence in cross-examination that she did not recall having an MRI of her cervical spine at the time. The respondent however frankly acknowledged that if the appellant had evidence that she did have such an MRI then she must have done; Black, 49.53-50.23. Moreover, in cross-examination it was never put to her that she was lying in saying that she had no recollection of the MRI scan.
37 The appellant's difficulty in making anything of all this is exacerbated by the fact that the appellant did not seek either to have its expert Dr Jones or any of the respondent's experts comment on the significance or otherwise of the 1998 MRI scan. Much is attempted to be made of the fact that the respondent herself did not volunteer that information of the 1998 MRI scan to the relevant doctors. But if one accepts the trial judge's credit-based finding that she was a truthful witness and then takes cognizance of the unremarkable result disclosed by the 1998 MRI scan, the appellant's attack leads nowhere.
38 The appellant then attempted to put the argument on a Jones v Dunkel basis. However, the short answer is that the 1998 MRI scan required no explanation from the respondent. It cast no obvious doubt on the respondent's evidence that she did not suffer any significant symptoms in her neck before the motor vehicle accident. If it was to be the appellant's case that an unremarkable MRI scan compelled the trial judge to reject the respondent's evidence, it follows that there was an evidentiary onus on the appellant to advance at least some medical support for that otherwise improbable submission. That was precisely the way in which the trial judge dealt with the matter at [38-[39]. The trial judge was perfectly justified in so doing.
39 A case based upon the existing symptoms being the true cause of damage or part thereof was disavowed by the appellant. The appellant properly had regard to authorities such as Watts v Rake (1960) 108 CLR 158 which place the evidentiary onus upon the defendant to disentangle a pre-existing condition as a causal factor, once disabilities of the plaintiff have been established from the accident. That was what here occurred.
40 Finally, it is not without significance that in every report of the appellant's expert witness, Professor Jones, bar the final report dated 22 March 2005 (the latter dealing with CTS) Professor Jones referred to the fact that the respondent had mild degenerative disease in her spine. Professor Jones certainly did not relate that degenerative disease to the accident of 6 February 2000; he referred to it as being "of a constitutional nature"; Blue, 488. It is clear therefore that he attached little or no significance to the existence of mild degenerative disease. It is fair to say, as the respondent contends, that his opinion would have been no different, and no more persuasive, had he been aware of the MRI scan on 3 November 1998.
41 There were also the clinical notes of the physiotherapist, Susan Eaton; Blue, 337. On 12 February 2000 Ms Eaton recorded, a few days after the accident on 6 February, that the respondent suffered a "powdery sensation" over the "past few years" on rotation of her neck, "but no pain"; Blue, 337V. That "sensation" was so minimal that the respondent could not recall it. It does not, to my mind, point to the respondent suffering any pain in her neck during the years preceding the accident. In that regard I agree with the written submissions of the respondent at Orange, 51 paras 35-6.
"35. The Appellant relied on the clinical notes of a physiotherapist, Susan Eaton [Blue 337]. On 12 February 2000, Ms Eaton recorded that, prior to the accident on 6 February 2000, the Respondent suffered a 'powdery sensation' over the 'past few years' on rotation of her neck, ' but no pain ' [blue 337V]. That 'sensation' was so minimal that the Respondent could not recall it; in any event, her work, domestic and social activities prior to the accident demonstrate that it was of no practical consequence; there was not a scintilla of evidence to suggest that the Respondent suffered any pain in her neck during the years preceding the accident.