Court of Appeal

New South Wales

Case Name: Dungan v Padash

Medium Neutral Citation: [2021] NSWCA 66

Hearing Date(s): 12 February 2021

Date of Orders: 23 April 2021

Decision Date: 23 April 2021

Before:

White JA at [1]McCallum JA at [64]Emmett AJA at [82]

Decision:

1. Appeal allowed.

Catchwords:
NEGLIGENCE — Causation — Motor vehicle accident — Where plaintiff d
Legislation Cited:
Motor Accidents
Civil Liability ActCompensation Act 1999 (NSW),
2002 (NSW), s 32

Cases Cited:

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Category: Principal judgment

Parties:
Rebecca Dungan (Appellant)

Representation:

Counsel:

File Number(s): 2020/235078

Decision under appeal:

Court or Tribunal: District Court of New South Wales

Jurisdiction: Civil

Citation: [2020] NSWDC 399

Date of Decision: 30 July 2020

Before: Abadee DCJ

 File Number(s): 2019/366667

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the
Court otherwise orders, a judgment or order is taken to be entered when it is
recorded in the Court's computerised court record system. Setting aside and
variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and
36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE
[This headnote is not to be read as part of the judgment]

The respondent suffered an injury to his lower back in consequence of a motor

vehicle accident which occurred on 30 November 2016 and for which the
appellant admitted liability. It was agreed that this injury consisted in the
aggravation of existing degenerative changes. The respondent also claimed
that he suffered psychiatric injury as a result of the accident.

The primary judge found that the physical restrictions attributable to the
accident subsided within a year of the accident, but that the respondent
continued to suffer from a psychiatric injury – an “adjustment disorder” – which
was the result of the appellant’s negligence.

In the award of damages, the primary judge included sums for past loss of
earnings and for past out-of-pocket expenses after November 2017 (that is,
after the physical restrictions attributable to the accident subsided), as well as
sums for future loss of earnings, future medical expenses and future lawn
mowing expenses.

On appeal, the appellant contended that the primary judge erred in finding that,
after November 2017, the psychiatric injury was causally related to the
accident, because the medical expert evidence established that the adjustment
disorder was “secondary to” the pain caused by the physical injury.

The respondent sought by cross-appeal to challenge the finding that the

physical restrictions attributable to the accident subsided within a year of the
accident. The respondent contended that, because the injury consisted in the
 aggravation of existing degenerative changes, the onus was on the appellant to
provide evidence to explain how and when the symptoms ceased to be related
to the accident.

The Court held, dismissing the cross-appeal (per White JA, McCallum JA
and Emmett AJA agreeing), and upholding the appeal (per White JA,
Emmett AJA agreeing, McCallum JA dissenting):

In relation to the appeal:

Per White JA (Emmett AJA agreeing): having found that the respondent’s
mental harm was associated with his continuing pain and restriction, but that
such pain and restriction was no longer attributable to the subject accident, the
primary judge erred in failing to find that the appellant’s ongoing psychological
symptoms were not causally related to the accident: [57].

Per White JA, obiter: section 32 of the Civil Liability Act 2002 (NSW) applies to
both pure mental harm and consequential mental harm: [13]-[15].

Per McCallum JA, contra: there was an absence of definitive and precise
evidence to discharge the appellant’s onus to exclude the operation of the
accident as a contributory cause of the ongoing psychiatric condition: [79]-[80].

In relation to the cross-appeal:

Per White JA (McCallum JA and Emmett AJA agreeing): the evidence that any
trauma caused by the accident would have resolved within 12 months was
sufficiently precise and definite to displace the inference that the respondent’s
pain after November 2017 was caused by the accident: [32].

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 and Purkess v Crittenden
(1965) 114 CLR 164; [1965] HCA 34, applied.

Per White JA (McCallum JA and Emmett AJA agreeing): the primary judge was
accordingly justified in finding that the respondent’s ongoing pain was
explicable as the result of his degenerative condition: [38].

JUDGMENT
1 WHITE JA: This is an appeal and cross-appeal from an award of damages in
the District Court in a personal injury claim (Padash v Dungan [2020] NSWDC
 399). The claim arose from a motor vehicle accident on 30 November 2016.
The appellant (defendant in the court below) drove into the rear of the
respondent’s vehicle when it was stationary behind another car. The force of
the impact was not such as to cause the respondent’s car to collide with the car
in front. The respondent’s car was damaged but not to the extent that the
police or ambulance were called.

2 There is no dispute that the respondent suffered an injury to his low back as a
result of the accident. Dr Michael Coroneos, a neurosurgeon, whose report
was tendered by the appellant, opined that the respondent may have
experienced a lumbar soft tissue strain as the result of the motor vehicle
accident. An Associate Professor Michael Fearnside, whose medical reports
were tendered by the respondent opined that the respondent suffered “an
aggravation of lumbar spondylosis” which was likely to be a pre-existing and
asymptomatic condition. As a result of the accident the injury that was
previously asymptomatic became symptomatic.

3 The appellant claimed that the respondent feigned and exaggerated his
injuries.

4 The primary judge found that the respondent was not a witness of credit and
that he had exaggerated his injuries. But he found that the respondent did
suffer continued pain to his lower back. The primary judge found that although
he accepted the respondent’s evidence that he suffered pain in his back and
down his left leg, nonetheless the physical restrictions of pain attributable to the
accident should have and on the balance of probabilities did subside within a
year of the accident. The primary judge found that the physical restrictions the
respondent suffered attributable to the accident had ceased by November
2017. By notice of cross-appeal the respondent challenges this finding.

5 The respondent also claimed that he had suffered psychiatric injury as a result
of the accident. The primary judge accepted that he had done so. The primary
judge accepted the report of a psychiatrist, Dr Patricia Jungfer. She opined that
the motor vehicle accident caused the respondent to suffer an “adjustment
disorder with mixed emotional features”. This was related to his chronic pain
complaints and change in life circumstances. The respondent had formerly
 worked as a taxi driver but had ceased to work. He was irritable and short
tempered.

6 Another psychiatrist, Dr Graham George, had diagnosed the respondent as

having a “mild to moderate persistent depressive disorder”. Dr George said that
“his depressive mood state was tied to his experience of pain, limitation of
movement and a decrease in activity level.”

7 Dr Jungfer, whose report the primary judge preferred, did not consider that the
respondent had a major depressive illness. Both psychiatrists linked the
respondent’s mental condition to his continued suffering of pain.

8 Although the primary judge found that after November 2017, the respondent’s
continued pain was not caused by the accident, his Honour concluded that the
respondent’s continued adjustment disorder (found by Dr Jungfer) was and
continued to be caused by the appellant’s negligence in running into the back
of the respondent’s car. The primary judge awarded damages of $278,817.75.

9 The appellant appeals against the primary judge’s finding that the respondent’s
continued suffering of the adjustment disorder was caused by the defendant’s
negligence. The appellant submits that on the medical evidence, the primary
judge ought to have found that the respondent’s adjustment disorder was
temporally connected to the pain he continued to suffer, and because that pain
suffered after November 2017 was not caused by the accident (as the Judge
had found) his Honour ought to have found that after November 2017, the
psychiatric illness suffered by the respondent was also not caused by the
appellant’s negligence.

10 For the reasons which follow, the respondent’s cross-appeal should be

dismissed and the appellant’s appeal should be allowed. Damages should be
reassessed accordingly.

11 One matter should be noticed so that it can put aside.

12 The respondent pleaded that he had suffered not only physical injury, but also
mental harm as a result of the accident. He pleaded that the appellant was
under a duty of care to him and breached that duty. That allegation was
admitted.
13 Section 32 of the Civil Liability Act 2002 (NSW) provides that a defendant does
not owe a duty of care to a plaintiff to take care not to cause the plaintiff mental
harm unless the defendant ought to have foreseen that a person of normal
fortitude might, in the circumstances of the case, suffer a recognised
psychiatric illness if reasonable care were not taken. The “mental harm”
referred to in s 32 means impairment of a person’s mental condition and
includes mental harm that is a consequence of a personal injury (ss 27 and
32(3)).

14 The section applies to both pure mental harm and consequential mental harm
(Optus Administration Pty Ltd v Wright [2017] NSWCA 21 at [55]; Williams v
Metcash Trading Ltd [2019] NSWCA 94 at [139]). The section implements the
recommendation of the Ipp Report (Commonwealth of Australia, Review of the
Law of Negligence: Final Report August 2002) at 9.36:

“The Panel’s considered opinion is that

(a) damages for economic loss resulting from the negligent infliction of
mental harm should be awarded only in respect of recognised psychiatric
illness, even if the mental harm is consequential on physical injury; and

(b) such damages should be recoverable only if the defendant ought to have
foreseen that a person of normal fortitude might, in the circumstances, suffer a
recognised psychiatric illness if reasonable care was not taken.”

15 However, no issue was raised either at trial or on appeal as to whether the

appellant ought to have foreseen that a person of normal fortitude might, in the
circumstances of the case, suffer a recognised psychiatric illness if she
negligently ran into the back of the respondent’s car. That question can await
decision on another day.

The cross-appeal
16 The respondent said that after the accident he went to hospital because he
was in pain on the left side of his back. He said that he was told that the
hospital did not have the facilities for x-rays and a CT scan and was advised to
see his doctor. He consulted a Dr Iboyan two or three days afterwards, who
prescribed physiotherapy and referred him for an x-ray and also sent him to
see a psychologist.
17 Records tendered showed that the respondent consulted Dr Iboyan on 7 and 8
December 2016, 31 January 2017, 11, 15 and 21 February 2017. A medical
certificate, apparently signed by Dr Iboyan, dated 31 January 2017 that formed
part of the respondent’s motor accident personal injury claim form recorded his
diagnosis of low back injury. In that form the respondent described his injuries
as back pain (lower), tail bone, dizziness and upper leg pain with trouble
sleeping.

18 On 7 December 2016 the plaintiff underwent an x-ray and CT scan of the

lumbar sacral spine (J [7]). The report as to these scans is not in the appeal
papers, but a report of Dr Zita Gacs of 10 May 2017 of a scan made on that
date at Macquarie Medical Imaging records disc protrusion compressing the
thecal sac at T12/L1 and L4/5 levels but without nerve compression and other
disc protrusions at L3/4 and L5/S1 without nerve compression. Her conclusion
was:

“There is no fracture or bone contusion. Alignment is normal. At L3/4 level,

broad-based disc bulge with left lateral protrusion extending to the left
foramen, slightly compromising the exiting left L3 nerve. Facet joint
arthropathy. Spondylitic changes with disc bulge and disc protrusion at L4/5
level and facet joint arthropathy without nerve compression.”
19 Associate Professor Michael Fearnside provided medical reports that were
tendered by the respondent. In his report of 9 September 2019 Associate
Professor Fearnside opined that the respondent sustained an injury to his low
back as a result of a motor vehicle accident, that injury being “an aggravation
of lumbar spondylosis likely pre-existing (asymptomatic)”. Associate Professor
Fearnside is a neurological surgeon. There was no significant neurosurgical
spinal injury. He opined that by 4 September 2019 (the date of his report) the
neurosurgical effects of the soft lumbar soft tissue strain had ceased.

20 After their reports of 9 and 4 September 2019 Associate Professor Fearnside

and Dr Coroneos were provided with surveillance footage of the respondent
taken in March 2018 and on 5 September 2019. The surveillance film showed
the respondent moving much more freely than when examined by the doctors.
Dr Coroneos said that the footage confirmed his opinion and stated that the
surveillance showed the respondent moving freely and engaging in activities
that were inconsistent with his claimed incapacities and restrictions. In a joint
 report Associate Professor Fearnside said that there were inconsistencies
between the video and his findings on physical examination and it seemed
likely that the respondent was not as disabled as he presented. In response to
a question as to when the doctors expected that the respondent’s symptoms
would resolve, they reported:

“A/Professor Fearnside is of the opinion that, assuming the Plaintiff’s veracity

in his presentation, over the two years following the said motor vehicle
accident, symptoms have continued and could likely continue. However, this is
not the anticipated natural history of such an injury which would be to stabilise,
improve or even resolve.
Dr Coroneos is of the opinion that the effects of lumbar soft tissue damage
would have settled within a few weeks following the said motor vehicle
accident with no ongoing symptoms.”
21 The primary judge did not accept the respondent as being a witness of credit.
This was partly owing to how the respondent dealt with questions in cross-
examination (J [78]-[79]), but principally owing to the surveillance evidence. As
to this the primary judge said (at [75]):

“I harboured doubts about the plaintiff’s credibility. I did not regard his
evidence in response to the surveillance to be plausible. The content of the
surveillance footage was damaging to his credibility, showcasing as it did the
plaintiff’s physical capacity to engage, without obvious restriction, in certain
daily activities, including his capacity to raise his arms, walk, stand, bend his
back and twist his body, which were contrary to his accounts given to various
medical practitioners as well as to the Court. Contrary to the plaintiff’s
evidence, the timing of the injections to his back was not temporally co-
incident with the activities depicted in the surveillance footage, when reference
is made to the timing of the injections in the chronology (Exhibit A) whose
correctness the plaintiff attested to. I did not accept his evidence, in effect, that
the surveillance merely caught him on two good days and regarded that as
somewhat glib. I note, in this regard, the close proximity between the
surveillance footage capturing his changing a light bulb (the September 2019
footage) to his examinations by Dr Coroneos and Associate Professor
Fearnside. In the latter case, he exhibited to Associate Professor Fearnside
virtual, or ‘near’ immobility in his back with movements decreased by 80% in
all directions as well as limited ability to raise his left leg with sciatic pain.”
22 The primary judge’s conclusion as to the respondent’s credit was that his
Honour was “… reluctant to accept his evidence unless corroborated or
consistent with other facts objectively established.” (J [81]) Nonetheless, the
primary judge said that he was “… prepared to accept that [the respondent]
has suffered on-going symptoms of pain and is likely to do so into the future.”
(J [96]).p His Honour said (at [97]):
 “In relation the surveillance footage, although it falsifies the extent of the
restrictions testified to by the plaintiff, in my opinion it is not altogether
inconsistent with the complaint of a middle aged man who frequently suffers
pain in his back and down his left leg. The activities depicted in the
surveillance were not overtly strenuous. They were capable of being
performed by a man in this plaintiff’s position and circumstances, being the
aggravation of degenerative changes in the lower back. They show that the
plaintiff may have exaggerated, but do not conclusively falsify, his evidence
that he does suffer pain at certain points and that this has impeded him in
his work and domestic activities. It is difficult to say whether his exaggeration
was deliberate or was simply part of his make-up: his psychiatrist referred to
his propensity to ‘catastrophize’. Given the gravity of the allegation, I am
inclined to think his exaggeration was not such as to amount to an attempt to
deceive the Court. I am influenced in this finding not only by his evidence, but
also that of his wife, a witness of credit. Contrary to the defendant’s
submission, her evidence was not just probative of the plaintiff’s making
complaint, but also her personal observations of the plaintiff after the accident,
including up to the point when she gave evidence.”
23 However, the primary judge was not satisfied that the ongoing pain about
which the plaintiff complained was caused by the accident. His Honour said (at
[95]):

“I consider that the view I have reached accommodates the plaintiff’s position
to the extent that the defendant does not say that he is not experiencing any
recent or current pain. Ultimately, however, with the defendant having
furnished evidence that the physical restrictions and pain attributable to the
accident should have subsided well before the hearing, the plaintiff carries the
ultimate onus of proving that they did not. I am not persuaded that the pain he
has experienced since the accident is currently attributable to the accident.”
24 His Honour had earlier noted that there was no dispute that the respondent had
degenerative changes in his lower back or lumbar spondylosis which was
aggravated by the accident (J [83]). His Honour found that:

“87 In my opinion, the defendant has discharged its evidentiary onus that the
onset of pain and physical restrictions in the plaintiff’s movement that was
attributable to the subject accident should have abated within a year of the
incident, by November 2017. In other words, such pain and restrictions as the
plaintiff has encountered beyond that period are not causally attributable to the
accident. At any rate, what is material for the purpose of findings on the
plaintiff’s claims under the heads of damage, in relation to the future, is that
any further pain and physical restrictions are not attributable to the accident.
…
89 I am cognisant of and accept the plaintiff’s points that he had no prior back
injury; that his evidence of injury to both his back and lower leg was the
subject of complaint, to both his wife and also the RNSH; although, in the latter
case, there was no precision as to the extent of injury. Further, although Dr
Coroneos expressed doubt whether the radiological evidence supported the
plaintiff’s account of pain down the left leg (see the Joint Report with Associate
Professor Fearnside at Tab 35 of Exhibit 1, p 304, Answer to Q2), on balance,
 I accept the plaintiff’s evidence about this particular injury having regard to the
consistency in which the plaintiff has complained about it.
90 The preponderance of the medical evidence suggests that the type of
injury and the way in which it was suffered should have resolved itself well and
truly by now. I refer here not only to the evidence of Drs Coroneos and Keller,
but also the evidence of Associate Professor Fearnside who indicated that an
injury of this kind would naturally have stabilised, improved or resolved (joint
report, Exhibit 1, p 305, Answer to Q3). Although it is unnecessary to choose,
of all of these doctors, and without the benefit of seeing them give evidence, I
was perhaps most impressed with Dr Keller’s evidence, summarised earlier,
which presented a balanced account. His opinion coincides with my own that
such complaints as the plaintiff now has concerning his pain and physical
restrictions are most likely attributable to his degenerative condition rather than
the subject accident.”
25 The primary judge reasoned that on the medical evidence he accepted, the
pain and physical restrictions in the respondent’s movement “should have”
abated within a year of the incident, that is, by November 2017 (J [87]). The
primary judge accepted the medical evidence (referred to at J [90] quoted
above) that “an injury of this kind would naturally have stabilised, improved or
resolved” (before November 2017).

26 The appellant’s case was that the respondent was feigning his symptoms and
did not suffer any real pain. The primary judge accepted that the plaintiff was
exaggerating his symptoms. But, as noted above, the primary judge
nonetheless accepted that the respondent “has suffered on-going symptoms of
pain and is likely to do so in the future” (J [96]) and that the surveillance was
not inconsistent with “… the complaint of a middle-aged man who frequently
suffers pain in his back and down his left leg” (J [97]). His Honour said that the
surveillance showed that:

“… the plaintiff may have exaggerated, but do[es] not conclusively falsify, his
evidence that he does suffer pain at certain points and that this has impeded
him in his work and domestic activities.” (at [97])
27 The primary judge’s finding that the respondent exaggerated his pain to the
doctors whose reports were tendered is not challenged. Rather, the respondent
challenges the primary judge’s finding that the pain (which the primary judge
accepted the respondent continued to suffer) was not caused by the accident.

28 The respondent did not dispute that there were degenerative changes to his
lumbar spine that pre-dated the accident. But he submitted that there was no
evidence that, but for the accident, it was likely that those changes which were
 asymptomatic at the time of the accident would have become symptomatic
within a year of the accident. The primary judge relied upon the medical
evidence that such trauma as was occasioned by the accident “should have”
resolved within weeks or months of the accident. The respondent submitted
that once the primary judge accepted the ongoing symptoms, the onus was on
the appellant to provide evidence to explain how and when the symptoms
ceased to be related to the accident. He submitted that a statement as to what
“should” have happened was not evidence that answered either of those
requirements.

29 The appellant submitted that the primary judge did not make a finding that, but
for the accident, the respondent would have experienced the symptoms he
complained of at or by some point in time. Rather, the primary judge proceeded
on the basis that the respondent had continuous symptoms from the date of
the accident, but concluded that after a year those symptoms had not been
caused by the accident. The respondent submitted that this approach was
contrary to the required approach to fact-finding expressed in Watts v Rake
(1960) 108 CLR 158; [1960] HCA 58 and Purkess v Crittenden (1965) 114 CLR
164; [1965] HCA 34.

30 Although not cited to the primary judge at trial, the primary judge had regard to
those decisions. His Honour said:

“85 Nevertheless, guidance may be received from authorities such as Watts v

Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. A
tortfeasor must take her victim as she finds him, however, where a plaintiff has
a pre-existing condition (here degenerative changes in his lower back) that
would ultimately likely have affected the claimant anyway, the tortfeasor
should be liable only for the acceleration wrought by her negligence (Luntz,
Assessment of Damages for Personal Injury and Death, LexisNexis
Butterworths revised 4th ed, 2016 [2.2.1], p 207).
86 In this context, there is a practical issue concerning onus of proof. The
authorities I have referred to indicate that it is incumbent upon the tortfeasor to
establish by evidence the pre-existing condition and its future probable effects
or actual relationship to the incapacity. That is its evidentiary onus. Thereafter,
it is for the plaintiff who carries the ultimate onus of proving the extent of the
injury caused by the tortfeasor’s negligence (Purkess per Barwick CJ, Kitto
and Taylor JJ at 168). As to what the tortfeasor must do in terms of its
evidentiary onus, it is evidence sufficiently precise and definite to displace the
inference that the disabling pain suffered was caused by the accident (Purkess
per Windeyer J at 171; applied in Seltsam Pty Ltd v Ghaleb [2005] NSWCA
208 per Ipp JA (Mason P agreeing) at [100]).”
31 The respondent does not criticise this analysis of the effect of the authorities.

32 I agree with the primary judge that there was evidence sufficiently precise and
definite to displace the inference that the disabling pain suffered by the
respondent was caused by the accident. The medical evidence that the primary
judge accepted, and was entitled to accept, was that on the balance of
probabilities, any trauma caused by the accident would have resolved within 12
months.

33 In Watts v Rake and Purkess v Crittenden the plaintiff suffered injury which
fully explained their condition at the time of trial. In both cases the plaintiff had
a pre-existing condition. In Watts v Rake the defendant contended the plaintiff’s
present condition was traceable to causes other than the accident, and in both
cases it was said that because of each plaintiff’s pre-existing disability each
plaintiff was likely to suffer a degenerative condition, even if there had been no
accident. In Watts v Rake Dixon CJ said (at 160):

“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.”
34 In the same case Menzies J said (at 163-164):

“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. … [I]t
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.”
35 In Purkess v Crittenden Barwick CJ, Kitto and Taylor JJ said (at 168) of Watts v
Rake that:
 “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.”
36 In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Ipp JA observed at [104] that
where the issues involve hypothetical situations as to the past, or assessments
of future events, what was said in Watts v Rake and Purkess v Crittenden must
be understood having regard to Malec v J C Hutton Pty Ltd (1990) 169 CLR
638; [1990] HCA 20 at 639-640, 643, that is, by assessing the chance of the
future or hypothetical event occurring and taking that chance into account in
assessing damages, unless the chance is so low as to be regarded as
speculative.

37 The issue in the present case did not involve hypothetical nor future events. It
did involve the disentangling of causes of the respondent’s condition at trial. As
Dixon CJ said in Watts v Rake it was for the defendant to exclude the operation
of the accident as a contributory cause to the plaintiff’s ongoing symptoms of
pain. This the appellant did. The evidence of Associate Professor Fearnside
was that the anticipated natural history of the injury would be for the injury to
stabilise, improve or even resolve. Dr Coroneos’ opinion was that the effects of
the lumbar soft tissue damage would have settled within a few weeks of the
accident. Dr Keller considered that the respondent probably suffered soft tissue
strain to the lumbar spine which was an exacerbation to pre-existing lumbar
spine degenerative changes and that any symptoms attributed to the accident
would be expected to be resolved by the time of his report. Dr Keller opined
that a soft tissue strain to the lumbar spine suffered in the accident “should
have resolved completely in the one year since the accident.”

38 These opinions amply supported the primary judge’s findings that on the
balance of probabilities the soft tissue injury suffered from the accident did
resolve within 12 months of the accident. The question then was whether or not
 the respondent continued to suffer pain to his back and left leg as he said, or
whether he was feigning his condition as the appellant contended.
Notwithstanding the adverse credit findings the primary judge made about the
respondent, and his finding that the respondent exaggerated his condition
(J [97]), he nonetheless found that the respondent suffered ongoing symptoms
of pain in his back and down his left leg (J [96] and [97]). This pain was
explicable as the result of degenerative changes in the lumbar spine
attributable to the pre-existing degenerative changes.

39 The respondent submitted that before such a finding could be made it was
necessary for the appellant to adduce reasonably precise medical evidence as
to when the respondent’s degenerative lumbar spine condition moved from
being asymptomatic to symptomatic. There was such medical opinion. Dr
Coroneos was of the belief the effects of the soft tissue injury from the accident
would have resolved within a few weeks of the accident. The primary judge
accepted Dr Keller’s more conservative opinion that this would have happened
within a year of the accident and proceeded accordingly. His Honour found that
on the balance of probabilities the effects of the injury suffered in the accident
had resolved within a year. It followed that the respondent’s continued pain
was not caused by the accident but by the changes to the respondent’s lumbar
spine condition, and this occurred no later than a year after the accident.

40 The cross-appeal should be dismissed.

The appeal
41 The respondent read reports from his treating doctor, a psychiatrist, Dr Singer,
who reported that he considered that the respondent had “… developed major
depression in the context of injury and persistent pain against the background
of a rubric of losses including work role as provider and financial difficulty.” He
also relied upon reports of a psychiatrist, Dr Patricia Jungfer. She diagnosed
the respondent as having suffered an “adjustment disorder with mixed
emotional features”. Dr Jungfer did not consider that the respondent had a
major depressive illness. She said that his symptoms were “most consistent
with an adjustment reaction related to his chronic pain complaints and change
in life circumstances”. She opined:
 “9.6 In view of the absence of a past history of psychiatric illness, no other
comorbid psychiatric triggers, the motor vehicle accident is causative of the
adjustment disorder with mixed emotional features.”
42 She said:

“11. PROGNOSIS.
11.1. Mr Padash’s prognosis is poor. He remains chronically focused
on pain, has reduced pain tolerance, has abandoned his role
responsibilities leading to being reconditioned. This and the persistent
difficulties with pain will result in a persistent adjustment-related
condition.
12. MANAGEMENT.
12.1. From a psychiatric perspective I would recommend the ongoing
pain management program. I am unable to provide costings for this. All
psychiatric treatment should occur within the context of his pain
[management]
13. WORK CAPACITY.
13.1. The adjustment disorder is caused by his inability to work
secondary to his pain. Should he be able to achieve some
symptomatic relief and return to work, then I believe that there would
be a reversibility of his mood state. His irritability and short-
temperedness would impact on his initial employment stability and
finding employment.”
43 The appellant tendered reports of a psychiatrist, Dr Graham George, dated 11
April 2019. He diagnosed the respondent as having a “mild to moderate
persistent depressive disorder”.

44 In a later report of 30 April 2020 Dr George said:

“When I saw Mr Padash in 2019, I indicated that he appeared to have mild to

moderate persistent depressive disorder related to, specifically, pain, limited
mobility and a decrease in activity level. In view of Dr Michael Coroneos’
opinion, I do not believe that he would have continued with any psychiatric
morbidity beyond the point where his soft tissue injury has resolved.
His presentation, currently, where he indicates he still struggles with
depression might be seen more in terms of an adjustment disorder with
depressed mood secondary to the accident of 7 February 2020 or a
continuation to a degree of his persistent depressive disorder, but not related
to the rear-end collision.”
45 Dr Jungfer and Dr George were provided with the surveillance footage. Dr
Jungfer said, in substance, that the surveillance footage was of little relevance
to her psychiatric assessment. Dr George reiterated his opinion that the
respondent did not suffer from a persistent depressive disorder related to the
 accident and said that the surveillance material suggested that he had capacity
for certain activities.

46 The primary judge preferred the opinions of Dr Jungfer. None of the doctors
was cross-examined. The primary judge had no advantage over this Court in
assessing whose medical opinion should be accepted. But neither party
challenged the primary judge’s acceptance of Dr Jungfer’s evidence. (I do not
suggest that there is any reason to doubt the primary judge’s acceptance of Dr
Jungfer’s evidence.)

47 The primary judge noted, correctly, that little attention had been given in the
parties’ submissions to his Honour as to the plaintiff’s mental harm and what
should follow from it (J [98]). The primary judge found that the respondent had
suffered mental harm and that finding is not challenged. The appellant’s case is
that the mental harm the respondent suffered was an adjustment disorder that
is temporally coincident with his pain and because the primary judge found his
continued pain is not the result of the motor vehicle accident, nor is his
adjustment disorder.

48 The primary judge found:

“100 Further, I am satisfied on the balance of probabilities that his mental

harm is continuing and will continue in the future. In this regard, Dr Jungfer
said that ‘should (the plaintiff) be able to achieve some symptomatic recovery
and return to work, it is likely that there could be an improvement with regards
to his mood’ (my emphasis). As I have shown, it was a contentious matter
whether or not his physical symptoms really have improved, but the plaintiff
has not been able to return to work. This is something of a vicious cycle for the
plaintiff: his pain and symptoms make him hesitant to return to work whatever
the objective medical evidence may suggest, but without the work, his mental
health does not improve. His evidence that I referred to at paragraph 57 struck
me as plausible.
101 Although it is probably unnecessary to choose between the various
diagnoses, it strikes me that Dr Jungfer’s account is preferred. Her report was
very comprehensive. It was balanced and consistent with the lay evidence of
symptoms. She was realistic when appraising the plaintiff as having a
‘propensity to catastrophize’, which is consistent with the impressions of the
vocational experts and my own. She was also balanced in her
acknowledgment of the content of the surveillance footage. I consider Dr
Fuller’s evidence to be excessively bleak and, with all respect to him, there
was not a great deal of reasoning which was exposed to support his diagnosis.
Dr Jungfer did not agree with Dr Fuller [and said] that he did not have a major
depressive illness.
 102 I do not accept the opinion of Dr George, based as that opinion was
upon the view of Dr Coroneos, to the effect that as the neurosurgical effects of
the soft tissue injury to the back subsided, so too did his psychiatric morbidity.
It did not appear to me that there was any reasoning to sustain that view and it
does not strike me as logical: I do not see why a cessation of physical difficulty
should necessarily result to an end of mental health concerns.
103 I find that his adjustment disorder is enduring and is likely to endure and,
further, that this condition has been caused by the accident. …
104 An issue of some significance when dealing with discrete heads of
damage is the contributions to the plaintiff’s mental harm which is made by the
physical pain and restrictions experienced by the plaintiff and his inability to
work. Since the inability to work is due to the pain related problem, there is
plainly no bright line. But where, as I have found, the current pain and
restrictions is not causally related to the accident, there is arguably a question
whether the normative ‘scope of liability’ test for causation (of the mental harm)
is satisfied. This was not, to be sure, raised by the defendant and, in my view,
properly so. There is a symbiotic relationship between the pain (which, at least
initially, was caused by the accident, and which continues, as I have found)
and the inability to work and it accords with common sense, in my view, that as
time passes with unemployment, the problems associated with lack of
motivation, diminished morale and drive and anxiety are likely to persist even if
the source of the physical pain is no longer the subject accident, but rather the
underlying degenerative changes. Accordingly, I am also satisfied that the
‘scope of liability’ element to causation under s 5D(1)(b) of the Civil Liability
Act is also satisfied in relation to the plaintiff’s mental harm.”
49 The appellant challenges this reasoning. He says that if, as the primary judge
found, the respondent’s pain after November 2017 was not caused by the
motor vehicle accident but was due to degenerative changes to the
respondent’s spine, then the respondent’s continued adjustment disorder which
was a response to current pain was not caused by such injury as was suffered
in the accident.

50 The appellant did not dispute the primary judge’s acceptance of Dr Jungfer’s
evidence that the respondent suffered an adjustment disorder. His Honour
found that the mental harm sustained by the respondent from the accident
contributed to his diminished capacity for work (J [157]). The primary judge
found:

“158 Dr Jungfer noted in her primary report that the plaintiff felt he was letting
his family down as he was not earning income. Although I have found that his
pain since late 2017 is attributable to degenerative changes, the correct
identification of the source of the pain is of no moment to the plaintiff in terms
of his motivation to work. In my view, the plaintiff has developed what might be
regarded as a sense of helplessness, where his motivation to work has been
severely diminished notwithstanding his anxious appreciation of the need to
work: in other words, he cannot mentally bring himself to resume his former
work.
 …
174 I accept Dr Jungfer’s evidence that the plaintiff’s prognosis for mental
health is poor with a chronic focus on pain. This has a significant ‘spin-
off’ effect on his work capacity and is, unfortunately, self-reinforcing. The pain
he has endured to date (whether causally attributable to the accident or not)
has diminished his motivation to resume his former work as taxi driver or strive
to consider or obtain alternative employment, or to re-skill. Further, as Dr
Jungfer explains, the more irritable and short-tempered he is, the harder it will
be for him to (generally) re-enter the workforce.”
51 In her reports Dr Jungfer described the respondent’s adjustment disorder
characterised by low mood, irritability and short-temperedness as being a
response to persistent pain. In her report of 24 March 2020 Dr Jungfer said that
his psychiatric symptoms appeared to have emerged in response to his pain
complaints and lack of structured activity. He presented with a “catastrophic
reaction to his pain and disability”. She said that his symptoms were “… most
consistent with an adjustment reaction related to his chronic pain complaints
and change in life circumstances” and (as quoted at [41] above) that:

“The adjustment disorder is caused by his inability to work secondary to his

pain. Should he be able to achieve some symptomatic relief and return to work
then I believe that there would be a reversibility of his mood state. His
irritability and short-temperedness would impact on his initial employment
stability and finding employment.”
52 The appellant submitted that this evidence, which the primary judge accepted,
demonstrated that the respondent’s ongoing suffering of an adjustment
disorder was a response to his ongoing pain. I agree.

53 The primary judge said that he saw no reason why a cessation of physical
morbidity should necessarily result in an end to mental health concerns
(J [102]). But the evidence of Dr Jungfer which the primary judge accepted
(and the respondent does not contend that his Honour was in error in accepting
Dr Jungfer’s evidence) was that the adjustment disorder was inextricably linked
to chronic pain complaints. She also said that it was linked to change in life
circumstances, being his inability to work. But this was secondary to his pain. If
his symptoms were relieved so that he was able to return to work, then there
would be a reversibility of his mood state.

54 There was no dispute that an adjustment disorder is a psychiatric illness. But

there is no explanation in any of the medical evidence as to what an
adjustment disorder is and how it is to be distinguished from a reaction to a life
 event that creates a mood disorder which is not a psychiatric illness. A
question arose during the hearing of the appeal as to whether or not the court
could take judicial notice of the description of what constitutes an adjustment
disorder that is a psychiatric illness in DSM4 or DSM5. Dr Jungfer provided an
assessment of the degree of the respondent’s whole person impairment
attributable to her diagnosis of adjustment disorder with mixed emotional
features. It should be inferred that in doing so she used the Motor Accident
Permanent Impairment guidelines applicable to an accident that occurred
between 5 October 1999 and 30 November 2017 (Motor Accidents
Compensation Act 1999 (NSW), s 133(2)). Clause 1.213 of those guidelines
provides:

“The impairment must be attributable to a psychiatric diagnosis recognised by

the current edition of the Diagnostic & Statistical Manual of Mental Disorders
(DSM) or the current edition of the International Statistical Classification of
Diseases & Related Health Problems (ICD). The impairment evaluation report
must specify the diagnostic criteria on which the diagnosis is based.”
55 But the respondent rightly said that in the absence of evidence from Dr Jungfer
as to which publication she applied, and her interpretation of those
publications’ description of adjustment disorders, and in the absence of any
questioning of Dr Jungfer, it would be unsafe for this Court to apply its own
interpretation of either publication to attempt to answer questions such as
whether an adjustment disorder is temporally coincident with the stress or
event, or the consequences of the stress or event, which gives rise to the
disorder. It is sufficiently clear from Dr Jungfer’s report, and indeed from Dr
George’s report, that the psychiatric illness was considered by them to be
coincident with the symptoms of physical pain.

56 Further, although the appellant had an evidentiary onus to show that the
continued symptoms of pain were not attributable to the accident, once that
onus was discharged, the legal burden remained on the respondent to show
that the continuance of the adjustment disorder was materially contributed to
by his earlier suffering of pain and his unemployment up to November 2017 as
a result of pain experienced up to that time.

57 The primary judge found that the respondent’s mental harm was associated
with his continuing pain and restriction, but found that such pain and restriction
 was no longer attributable to the subject accident (J [115]). That finding is
correct and should have led his Honour to find that the appellant’s ongoing
psychological symptoms are not causally related to the short-term trauma
suffered from the accident.

58 The primary judge included in his assessment of damages a sum of $8,000 for
future out-of-pocket expenses, being expenses for analgesics and pain
management because he found that relief for pain was required to assist the
appellant to relieve the mental health issues he faced (J [125]). It is
inconsistent with the primary judge’s finding that the appellant’s current pain
was not caused by the accident.

59 For these reasons the appeal should be allowed.

60 The appellant submitted that the award of damages for out-of-pocket expenses
and loss of past earnings should have been limited to the period up to 30
November 2017 and that no award for future out-of-pocket expenses, future
lawn-mowing services or future loss of earning capacity should have been
allowed. For these reasons, I agree. On this basis the appellant calculated that
judgment should have been entered for the respondent in the sum of
$41,965.65. The respondent did not take issue with this calculation.

61 For these reasons I propose the following orders:

(1) Appeal allowed.

(2) Set aside orders 1 and 2 of the District Court made on 30 July 2020.
(3) In lieu thereof direct entry of judgment for the respondent in the sum of
$41,965.65, such judgment to take effect as and from 30 July 2020.
(4) Order that the respondent pay the appellant’s costs of the appeal.
62 The appellant submitted that if these orders were made the parties should be
given the opportunity to provide submissions and adduce any evidence
relevant to the question of what order should be made as to the costs of the
proceedings in the District Court. The respondent did not demur to that course.
Such an order should be made. I propose the following further orders:

(1) Unless the parties agree as to the order which should be made as to the
costs of the proceedings in the District Court, within 14 days the
appellant file and serve written submission (not to exceed five pages)
and any affidavit proposed to be relied upon on the question of what
 costs order should be made in respect of the proceedings in the District
Court.
(2) Within 14 days thereafter, the respondent file and serve submissions
(not to exceed five pages) and any evidence proposed to be relied upon
on that issue.
(3) Any submissions in reply (not to exceed three pages) be filed and
served within seven days thereafter.
63 If the parties agree on the order to be made as to the costs of the proceedings
below in the light of these reasons, a proposed order signed by the legal
representatives of both parties should be provided to my associate within 14
days.

64 McCALLUM JA: I agree that the cross-appeal should be dismissed, for the
reasons stated by White JA. I respectfully disagree with his Honour’s
conclusion concerning the appeal. Subject to one qualification identified at the
conclusion of this judgment, I would dismiss the appeal for the reasons
explained below. The point on which I disagree is narrow, but dispositive.

65 The primary judge accepted that the respondent suffered “mental harm” as a
result of the accident. His Honour explained that conclusion at [99] as follows:

“It appeared to be not disputed that the plaintiff has suffered mental harm
causally attributable to the accident. Dr George did not say otherwise. The
plaintiff’s account to Dr Singer as to his mood and behaviours since the
accident was plausible, as it was in the RNSH multidisciplinary assessment
undertaken in March 2019. His evidence of no prior mental harm was
unchallenged. Further, his account as to his mood and behaviour,
domestically, was corroborated by his wife. I also add that my impression of
him when giving evidence was, to my eye, that he appeared flat in his
bearing.”
66 The primary judge further accepted at [100] that “[the respondent’s] mental
harm is continuing and will continue into the future.” Neither of those findings is
challenged.

67 A third central fact (the cross-appeal having been rejected) is that, from about
one year after the accident, the respondent’s pain was not accident-related but
was instead caused by degenerative disease. The appellant’s deceptively
simple argument is that, because the continuing pain is not the result of the
motor vehicle accident, it follows that the continuing psychiatric symptoms are
also not the result of that accident.
68 As submitted by the respondent, the premise of that argument is what White JA
has termed the temporal coincidence of the continuing psychiatric condition
and the continuing physical pain. The assumption is that the continuing
psychiatric symptoms, having been initially caused by accident-related pain,
would not persist in the absence of that pain. That premise was not articulated
to the primary judge. Further, as I will explain, it was not to be assumed without
proof.

69 The point on which I disagree with White JA is confined to a question of onus.

The respondent’s psychiatric condition was secondary to a physical condition
caused by the appellant’s tortious conduct. As such, it was an additional
condition resulting from the accident for which the appellant is liable to
compensate the respondent.

70 It was not suggested that there is any legal or medical basis for making a
universal assumption that a secondary condition will necessarily cease with the
resolution of the primary condition. A secondary condition occurring as a result
of having a primary condition may or may not be temporally coincident with the
primary condition. An infection secondary to the infliction of a wound might be
expected to resolve at the same time as the healing of the wound (indeed its
resolution may be a necessary condition for the healing of the wound);
conversely, osteoporosis secondary to an eating disorder might continue
beyond the successful treatment of the eating disorder. The absence of any
assumed correlation between the resolution of a secondary condition and the
primary condition from which it results is what I understand the primary judge to
have meant by his remarks at [102] (set out by White JA above) when rejecting
Dr George’s opinion (that as the neurosurgical effects of the soft tissue injury to
the back subsided, so too did his psychiatric morbidity) on the basis that it was
not “logical”. The primary judge concluded, “I do not see why a cessation of
physical difficulty should necessarily result to an end of mental health
concerns”.

71 The appellant sought in this context to derive some support from the definition
of “adjustment disorder” in DSM 4 or DSM 5, which (so it was asserted) “leads
to the inevitable conclusion that if the pain which is the basis of the condition
 ceases to be accident related, the condition ceases to be accident related”. For
the reasons given by White JA, I agree that this Court should not resort to
either of those publications to determine whether an adjustment disorder is
temporally coincident with the stress or event, or the consequences of the
stress or event, which gives rise to the disorder.

72 What was required was proof. On my understanding of the authorities

discussed by White JA, it was the appellant who bore an evidentiary onus to
establish the premise of her contention. White JA accepts that the appellant
had an evidentiary onus to show that the continued symptoms of pain were not
attributable to the accident. However, his Honour holds that, once that onus
was discharged, the legal burden remained on the respondent to show that the
continuance of the adjustment disorder was materially contributed to by his
earlier suffering of pain and his unemployment up to November 2017, as a
result of pain experienced up to that time.

73 In my respectful opinion, that analysis holds true only if the appellant

established the untested premise that the pain and the psychiatric condition
were temporally coincident (or, in other words, that the psychiatric condition
would abate with the cessation of the physical pain).

74 I am not persuaded that the evidence went so far. Dr Jungfer, whose evidence
the primary judge accepted, gave a diagnosis of “adjustment disorder with
mixed emotional features”. In her first report dated 5 March 2019, she
explained the cause of the disorder in the following terms:

“The adjustment disorder in part is caused by his inability to work due to his
pain related problems. Should Mr Padash be able to achieve some
symptomatic recovery and return to work, it is likely that there could be an
improvement with regards to his mood. The psychological symptoms that he
reports, the irritability, short-temperedness, social withdrawal would make him
a less than optimal candidate with regards to finding employment and would
be a barrier with regards to achieving success through the probationary
period.”
75 Dr Jungfer made a similar statement in her later report dated 24 March 2020
(quoted by White JA at [42]):

“The adjustment disorder is caused by his inability to work secondary to his

pain. Should he be able to achieve some symptomatic relief and return to
work, then I believe that there would be a reversibility of his mood state. His
 irritability and short-temperedness would impact on his initial employment
stability and finding employment.”
76 The appellant submits, and White JA accepts, that Dr Jungfer’s opinion on that
issue demonstrated that the respondent’s ongoing suffering of an adjustment
disorder was a response to his ongoing pain. However, Dr Jungfer did not
confine the cause of psychiatric symptoms to the persistence of physical pain.
Her reports traced the development of a condition, which she ultimately
described as “persistent”, where the disabilities caused by the initial accident-
related pain in turn contributed to the respondent’s psychiatric symptoms
resulting in his abandoning his “role responsibilities” and becoming
“deconditioned”. She said “this and the persistent difficulties with pain will result
in a persistent adjustment-related condition”.

77 It is clear that the ongoing pain was thought to contribute to that condition.
Indeed, the primary judge said at [125] that the treatment of the respondent’s
mental health was “inextricably linked” to his physical condition. However, Dr
Jungfer did not say that was its only cause. As White JA notes, she accepted
that it was also linked to a change in life circumstances, being his inability to
work. Her evidence did not establish that, if the respondent’s symptoms were
relieved, he would be able to return to work. Her opinion was that if he was
able to achieve some symptomatic relief and return to work then there would
be a “reversibility of his mood state”, but that “his irritability and short-
temperedness would impact on his initial employment stability and finding
employment”.

78 The primary judge gave careful consideration to the evidence on that issue and
concluded that the respondent’s “mental harm”, which his Honour accepted at
[157] was causally attributable to the accident, has contributed to diminishing
his capacity to work. His Honour concluded at [158]:

“Dr Jungfer noted in her primary report that the plaintiff felt he was letting his
family down as he was not earning income. Although I have found that his pain
since late 2017 is attributable to degenerative changes, the correct
identification of the source of the pain is of no moment to the plaintiff in terms
of his motivation to work. In my view, the plaintiff has developed what might be
regarded as a sense of helplessness, where his motivation to work has been
severely diminished notwithstanding his anxious appreciation of the need to
work: in other words, he cannot mentally bring himself to resume his former
work.”
79 I am not persuaded that there was any error in that analysis. Once the primary
judge had accepted that the respondent’s psychiatric condition resulted from
the accident and that it continued beyond the period of accident-related
physical pain, the appellant was required (in the words of Dixon CJ in Watts v
Rake, cited by White JA at [33] above) to “do the disentangling and to exclude
the operation of the accident as a contributory cause” of the ongoing
psychiatric condition. For that purpose, as submitted by senior counsel for the
respondent, definite and precise evidence was required.

80 The evidence did not satisfy that requirement. The appellant did not even invite
the primary judge to undertake the task of disentangling the causes
contributing to the respondent’s current psychiatric condition. There was a
finding that the source of the physical pain changed and there was certainly
evidence that persisting pain was a contributing factor to the psychiatric
condition. However, there was no evidence excluding the operation of the
motor vehicle accident as a contributory cause to the persistent psychiatric
condition described by Dr Jungfer, the symptoms of which included
decompensation, deconditioning and the “sense of helplessness” to which the
primary judge referred, and which his Honour accepted was causative of a
diminution in the respondent’s capacity to work. As submitted by the
respondent, in the absence of such evidence, the primary judge was entitled to
treat the respondent’s current psychiatric condition as the continuation of the
condition that resulted from the tortiously caused physical harm.

81 I said at the outset of this judgment that there is one qualification to my

conclusion that the appeal should be dismissed. I agree with White JA that the
primary judge’s conclusion at [125] that the respondent should be awarded
$8,000 for the cost of treatment for his current physical pain cannot stand.
Senior counsel for the respondent as much as conceded this point. As this is a
dissenting judgment, it is not necessary to spell out the consequences of that
conclusion in the orders proposed. Subject to that qualification, I would dismiss
the appeal with costs.

82 EMMETT AJA: These proceedings arise out of a motor vehicle collision that
occurred at Canada Bay on 30 November 2016, as a result of which the
 respondent, Mr Hassan Padash, suffered injury. The appellant, Ms Rebecca
Dungan, who was the owner of the other vehicle involved in the collision, which
drove into the rear of the vehicle driven by Mr Padash, admitted liability for the
injury suffered by Mr Padash. Mr Padash alleged that he suffered an injury to
his back with pain radiating to his left leg and that he developed an adjustment
disorder secondary to chronic lower back pain.

83 Mr Padash sued Ms Dungan in the District Court. A judge of the District Court
(the primary judge) awarded damages of $278,817.75. In his reasons, the
primary judge observed that it appeared not to be disputed that Mr Padash had
suffered mental harm causally attributable to the motor vehicle accident. His
Honour was satisfied on the balance of probabilities that the mental harm was
continuing and will continue in the future. His Honour accepted the evidence of
Dr Jungfer, a psychiatrist, that Mr Padash’s adjustment disorder was enduring
and is likely to endure and that that condition had been caused by the motor
vehicle accident. His Honour referred to the question of whether the
contribution to Mr Padash’s mental harm was made by the physical pain and
restrictions experienced by him and his inability to work.

84 The primary judge observed that, since the inability to work was due to the pain
related problem, there was no bright line but where, as his Honour found, the
current pain and restrictions were not causally related to the accident there was
arguably a question as to whether the normative scope of liability for the test of
causation of the mental harm was satisfied. His Honour held that there was a
symbiotic relationship between the pain and the inability to work and that it
accords with common sense that as time passes with unemployment, the
problems associated with lack of motivation, diminished morale and drive and
anxiety are likely to persist, even if the source of the physical pain were no
longer the motor vehicle accident, but rather underlying degenerative changes
in Mr Padash’s spine. There was clear evidence of degenerative change in
Mr Padash’s spine that had no connection with the motor vehicle accident and
that that degenerative change was capable of causing the pain that he
presently suffers.
85 The primary judge concluded that Ms Dungan had discharged the evidentiary
onus of demonstrating that the onset of pain and physical restriction in
Mr Padash’s movement that was attributable to the motor vehicle accident
should have abated within a year of the accident, namely, by November 2017.
His Honour considered that the preponderance of the medical evidence
suggested that the type of injury and the way in which it was suffered should
have resolved itself well and truly by the time of the trial. His Honour
characterised the injury as “a conventional whiplash injury”.

86 Nevertheless, his Honour accepted that Mr Padash continued to experience

pain notwithstanding that, on the balance of probabilities, the pain and physical
restrictions that he experienced from the motor vehicle accident would have
abated. Mr Padash contended that it was not until after the motor vehicle
accident that he began to suffer pain and there was no evidence of progression
of the degenerative changes to his spine, such that symptoms would have
commenced after the time when pain and disability from the motor vehicle
accident would have ceased.

87 The primary judge did not accept opinion evidence adduced on behalf of
Ms Dungan to the effect that, as the neurosurgical effects of the soft tissue
injury to Mr Padash’s spine subsided, so did his psychiatric morbidity. His
Honour did not consider that there was any reasoning to sustain that view and
his Honour did not see why a cessation of physical difficulty should necessarily
result in an end of mental health concerns.

88 While his Honour found that Mr Padash’s current and future physical
restrictions were not caused by the motor vehicle accident, his Honour
concluded that the treatment of his mental health was inextricably linked with
his physical condition and pain management so as to justify an award that
would accommodate his requirement for analgesics and pain management. His
Honour considered that Mr Padash needed the relief for his pain to assist him
to relieve the mental health issues that he faces.

89 By notice of appeal filed on 12 August 2020, Ms Dungan appeals from the

orders made by the District Court. Ms Dungan asserts in her notice of appeal
that the primary judge erred:
  in finding that the mental harm from which Mr Padash suffers, namely an
adjustment disorder, is and was after 30 November 2017 causally related to
the motor vehicle accident;
 in finding that, while any and all physical symptoms from which Mr Padash has
suffered since 30 November 2017 are not causally related to the motor vehicle
accident, the mental harm from which Mr Padash suffered after that date is
causally related to the motor vehicle accident;
 failing to find that, once the physical symptoms caused by the motor vehicle
accident to which Mr Padash’s mental harm was inextricably linked had
ceased, his mental harm also ceased to be causally related to the motor
vehicle accident; and
 failing to limit the award of damages to out-of-pocket expenses up to
30 November 2017 and loss of earnings up to 30 November 2017.
90 By notice of contention filed on 5 November 2020, Mr Padash asserted that the
primary judge should have found that his psychological condition continued to
be related to the physical injuries suffered in the collision. By cross-appeal filed
on 5 November 2020, Mr Padash asserted that his Honour erred in finding that
the effects of physical injury had ceased.

91 I do not consider that the evidence supports a conclusion that the mental
condition from which Mr Padash now sufferers would not have arisen but for
the motor vehicle accident. There was clear evidence of degenerative changes
in the condition of his spine that would give rise to pain. That pain, in turn, was
capable of causing the mental condition from which Mr Padash suffers. In
circumstances where:

 the evidence of degenerative changes of the spine is an obvious explanation

for the pain from which Mr Padash now suffers,
 the pain from which Mr Padash now suffers is the source of his mental
condition, and
 Mr Padash no longer suffers pain or restriction as a result of the motor vehicle
accident,
there was nothing to link the mental condition from which Mr Padash now
suffers with the motor vehicle accident. The primary judge erred in concluding
to the contrary.

92 I have had the advantage of reading in draft form the reasons of White JA for
concluding that the cross-appeal by Mr Padash should be dismissed and that
the appeal should be allowed. I agree with his Honour’s conclusions and the
 reasons for those conclusions. I also agree with the orders proposed by his
Honour.

**********

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