Lelio Falasca v Margaret Morrissy [1998] ACTSC 208 (6 May 1998)

  
  
  
  

  

  
   

  

  

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

  

   GALLOP J, HIGGINS AND CRISPIN
JJ

  

  

  

  

  

  

  

   PERSONAL INJURIES - Medical opinion founded in part upon false premise -
degenerative cervical
spondylosis said to have become symptomatic due to
accident - evidence of pre-accident pain - medical opinions undermined.

  


 

  

   PERSONAL INJURIES - Rule in Watts v Rake - difference between legal and
evidentiary burdens of proof - former constant
- latter changing - no occasion
for evidentiary burden to shift until plaintiff establishes, prima facie,
relevant incapacity due
to accident - legal burden remains on plaintiff to
prove incapacity claimed.

  

  

  

   FRESH EVIDENCE - Intended to rebut unanticipated
finding - where evidence
could have been obtained by exercise of reasonable diligence it should not be
admitted save in exceptional
circumstances where demanded by interests of
justice.

  

  

  

   Ramsey v Watson [1961] HCA 65;  (1960) 108 CLR 642

  

   Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58;  (1985) 59 ALJR 844

  

   Watts v Rake [1960] HCA 58;  (1960) 108 CLR 158

  

   Purkess v Crittenden [1965] HCA 34;  (1965) 114 CLR 164

  

   Goldsborough v O'Neill (1996) 131 FLR 104 at 105-6

  

  

  

  

  

   CANBERRA, 14 April 1998 (hearing),
6 May 1998 (decision)

  

   #DATE 06:05:1998

  

  

  

   Appearances

  

   Counsel for the Appellant: Mr R Williams QC


 

   Instructing Solicitors: Scott Sheils & Glover

  

  

  

   Counsel for the Respondent Mr L Morris QC with Ms C Adamson

  

   Instructing Solicitors: Abbot Tout Harper & Blain

  

  

  

  

  

  

  

   Order:

  

   1. The appeal be dismissed.

  

  

  

   2. The appellant pay the respondent's costs of the appeal.

  

  

  

  

  

   1. THE COURT: This is an appeal
by the plaintiff against the assessment of
damages made by the Master in relation to personal injuries sustained in a
motor vehicle
accident on 10 June 1993.

  

   2. The plaintiff was a primary school teacher and at the time of the
accident had part time work
teaching Italian to students at Hawker College
outside school hours.

  

   3. Following the accident he suffered from neck pain
and headaches. These
symptoms were said to be due to an underlying and previously asymptomatic
degenerative spondylosis in his lower
cervical spine which the accident caused
to become symptomatic. One medical specialist, Dr Adler, also suggested that
the accident
had caused some damage to the upper cervical spine.

  

   4. As a result of these disabilities he claimed to have been unable to
maintain his after hours work and maintained that his prospects of promotion
within the ACT teaching service had been limited. It
was suggested that but
for the accident he would have increased his part-time teaching load and would
have supplemented his earnings
by providing private tuition in Italian.

  

   5. The plaintiff had also claimed that the accident caused an aggravation
to a pre-existing
heart and artery condition and injury to his lumbar spine.
Both of these particulars of injury were withdrawn during the course of
the
proceedings but evidence as to the nature and extent of his coronary condition
was considered insofar as it was relevant to the
plaintiff's claim that his
incapacity to continue teaching Italian on a part-time basis was attributable
to injuries to his cervical
spine.

  

   6. The plaintiff commenced his part-time work in the year of the accident
and maintained that work throughout the
balance of 1993 and 1994. He took
leave from his primary school teaching in 1994 and subsequently underwent
major coronary surgery.
His general practitioner expressed the view that the
Òextent of Lelio's coronary artery disease was disturbing in a man who
is not yet 40 and the fact that he has already undergone coronary by pass
surgery gives a rather alarming picture for the future
in respect of possible
myocardial infarction". Whilst he had resumed teaching after the operation he
had not resumed his additional
part-time work. The Master took the view that
in the context of this evidence it would require compelling medical evidence
to establish
that the loss of his capacity to engage in this part-time work
was attributable to the emergence of symptoms of a degenerative cervical
condition rather than the heart condition.

  

   7. The Master also noted that the plaintiff had continued to engage in fly
fishing,
shotgun shooting, and golf. There was evidence that these activities
were likely to involve a degree of stress to the neck and shoulders.
Whilst
the plaintiff said that he engaged in all of them with less frequency than he
had done before the accident, the Master took
the view that there would also
need to be compelling medical evidence to the effect that he could engage in
these activities but
was nonetheless incapable of maintaining his part-time
work as a teacher.

  

   8. The medical reports tendered during the course
of the proceedings
generally supported the plaintiff's claim of degenerative cervical spondylosis
rendered symptomatic by the accident.
The reports were also consistent in
recording that the plaintiff had denied any previous history of neck pain.

  

   9. On the
first day of the hearing the notes of his general practitioner,
Dr Black, were produced on subpoena. The notes included some reference
to a
referral in July 1991 to a physiotherapist, Mr Rumore. This prompted further
inquiries and Mr Rumore subsequently provided a
report dated 4 September 1997
which included the following account of the plaintiff's first attendance for
treatment: ÒThis
patient first attended physiotherapy on 23 December
1991.

  

   He presented with bilateral cervicothoracic and interscapulare
pain and
right posterior shoulder and arm pain of six weeks duration. The patient
indicated that the symptoms were insidious in onset
and work related. He had
been undertaking self-management techniques at home and had utilised heat
therapy and stretching techniques
without success. He had indicted no previous
history relevant to the symptoms. Intermittent aspirin medication was also
undertaken.
The patient at this stage, was working as a teacher and no other
relevant subjective history was noted.

  

   On his initial examination
an increase in thoracic spine kyphosis was noted
and painful restriction of all cervico-thoracic movements to 75 percent of
range
was evident . . ."

  

  

  

  

  

   The report then referred to certain tests and observations, outlined the
treatment and
referred to the establishment of a home flexibility exercise
program. It then continued:

  

  

  

  

  

   ÒThe patient
next attended physiotherapy on 6 April 1992, with a
re-ocurrence of low grade cervicothoracic and interscapulare pain of one
month's
duration. Again, the objective examination signs mentioned above were
noted, however on this occasion a marked increase in the severity
of the right
upper limb tension test was noted."

  

  

  

  

  

   11. The plaintiff was given a similar treatment supplemented
by the
introduction of neuro-meningeal stretching techniques. The plaintiff again
attended for further physiotherapy on 9 and 14
April 1992 and on the latter
occasion was given intermittent mechanical traction.

  

   12. When cross-examined about this evidence
the plaintiff initially said
that he could not recall the neck pain and could not recall telling Mr Rumore
about having experienced
pain for as long as six weeks. He later conceded that
he had had pain but maintained that his main problem was with his arm although
he had had Òsome discomfort" in his neck. He described the traction as
uncomfortable and said that Òcertainly, I wouldn't
like to go through
things like that everyday". The Master did not make any finding to the effect
that the plaintiff's evidence had
been deliberately untrue. He did, however,
find that he had made complaints of pain, including pain in the neck and on
movement of
the neck, in December 1991 and again in 1992 and that he had
received treatment for these complaints of pain, including traction.
He
commented that the plaintiff's description of the traction suggested that it
would have been difficult for him to have forgotten
it. Yet the plaintiff had
denied any occurrence of neck pain to all of the treating medical
practitioners and had failed to mention
the referral to the physiotherapist,
which had led to four episodes of treatment over a period of 5 months ending
about 14 months
prior to the motor vehicle accident.

  

   13. The Master concluded - ÒGiven the importance of the history of
no complaint
of neck pain for the uniform diagnosis of an underlying
degenerative condition which was asymptomatic prior to the accident, this
failure to reveal a true history to the examining doctors means that I cannot
rely upon their reports."

  

  

  

  

  

   14.
In so concluding, the Master relied upon the decisions of the High
Court of Australia in Ramsey v Watson [1961] HCA 65;  (1960) 108 CLR 642 in which Dixon CJ,
McTiernan, Kitto, Taylor and Windeyer JJ observed, at 649, that when the
medical history
is the foundation or part of the foundation for an expert
medical opinion and that history is not established in evidence then
Òthe
physician's opinion may have little or no value, for part of the
basis of it has gone". This observation was echoed in the more recent
decision
of the High Court in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58;  (1985) 59
ALJR 844 when in a joint judgment, Mason ACJ, Wilson, Brennan, Deane and
Dawson JJ cited Ramsay v Watson as authority
for the proposition that it
Òis trite law that for an expert medical opinion to be of any value the
facts upon which it is
based must be proved by admissible evidence". Their
Honours commented, however, that that did not mean that the facts proven must
correspond with complete precision to the proposition upon which the opinion
had been based. In each case it was a question of fact
as to whether the
circumstances upon which the opinion was founded were sufficiently like those
proven to render the opinion of the
expert of any value. They cited, with
approval, a passage from Wigmore on Evidence that Òthe failure which
justifies rejection
must be a failure in some one or more important data, not
merely in a trifling respect".

  

   15. The Master then proceeded to
analyse the various medical reports which
had been tendered in evidence and concluded that the opinions supportive of
the proposition
that his degenerative cervical spondylosis had been rendered
symptomatic by the accident had been based substantially upon the history
that
the plaintiff had not previously experienced pain in his neck. The report of
Mr Rumore demonstrated the falsity of this premise.

  

   16. Accordingly, the Master proceeded to assess the plaintiff's claim
Òon the basis of a temporary and self-limiting
aggravation of a
pre-existing degenerative condition which had previously given rise to a
spontaneous onset of symptoms". He found
that the period of pain associated
with the accident had been limited and had led the plaintiff to make one visit
to his general
practitioner and to receive one referral for physiotherapy. He
noted that the plaintiff's degenerative condition had produced pain
before the
accident and that it was vulnerable to aggravation from certain activities
such as the use of shotguns which the plaintiff
continued to undertake. He
concluded that the motor vehicle accident had produced a period of aggravation
which was of limited extent
and duration. In the circumstances he awarded the
sum of $7,500 by way of general damages to which he added the sum of $642 for
interest.
He rejected the plaintiff's claim in relation to economic loss.

  

   17. This approach was attacked on a number of bases.

  

   18. First, it was submitted that the decisions of the High Court of
Australia in Watts v Rake [1960] HCA 58;  (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34;  (1965)
114 CLR 164 establish that where a plaintiff has made out a prima facie case
of incapacity resulting from the defendant's
negligence the onus of adducing
evidence that his incapacity was not wholly or partly the result of some
pre-existing condition rests
upon the defendant. In the present case, it was
clear that the plaintiff had suffered an aggravation of a pre-existing
condition
and that there was a continuing disability. In these circumstances
it had been incumbent upon the Master to approach the matter on
the basis that
the whole of the incapacity was due to the accident unless the defendant
discharged the onus of proving the nature
and extent of any disability that
would otherwise have continued or subsequently arisen from the underlying
condition had the accident
not occurred. This the defendant had failed to do.

  

   19. In view of the submissions which have been made, it is necessary to
examine the principle in Watts v Rake with some care. As Barwick CJ, Kitto and
Taylor JJ pointed out in Purkess v Crittenden (at
197), Watts v Rake does not
establish any rule that once the plaintiff has made out a prima facie case of
incapacity due to the defendant's
negligence the burden of establishing that
his incapacity is wholly or partially the result of some pre-existing
condition passes
to the defendant in the sense that the onus of proof on that
issue ultimately rests on the defendant. The expressions Òthe
burden"
or Òonus" of proof have two meanings: namely, the burden of
establishing a case to the requisite standard and the
burden of proof in the
sense of the need to introduce evidence as to some issue. Their Honours cited,
with approval, a passage from
Phipson on Evidence in the following terms:
Òthe burden of proof in the first sense is always stable, the burden of
proof
in the second sense may shift constantly, according as one scale of
evidence or the other preponderates". Watts v Rake had been concerned
with the
burden or onus of proof in the second sense. Their Honours commented (at 198):
ÒIt was, we think, with the character
and quality of the evidence
required to displace a plaintiff's prima facie case that Watts v Rake was
essentially concerned. 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
(ie 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."

  

  

  

  

  

   20. It is evident from this passage that the principle in Watts v Rake has
no application until
a plaintiff has been able to establish a prima facie case
that the incapacity in question has been caused by the negligence of the
defendant. In the present case, the Master was not satisfied that the evidence
relied upon by the plaintiff established that his
continuing incapacity had
been so caused. He pointed out that the plaintiff's case on this issue had
been reliant upon expert medical
evidence and that, in each case, the medical
practitioner had based his opinion, at least in part, upon the plaintiff's
assertion
that there had been no prior history of neck pain. Whilst the Master
did not find that this assertion had been made by the plaintiff
with any
intention of misleading the medical practitioners in question, it was clearly
untrue. It is, of course, axiomatic that an
opinion expressed by a medical
practitioner or, for that matter, any other expert will be of little if any
value unless the facts
upon which it is based are duly proven. The principle
in Watts v Rake does not relieve a plaintiff from the need to prove an
essential
premise even if it consists of information concerning the
plaintiff's state of health prior to the accident. Nor is any evidentiary
burden cast upon the defendant by the mere fact that one such premise consists
of the absence of prior incapacity or symptoms due
to a pre-existing
condition.

  

   21. As the High Court pointed out in Paric (supra at 846), not every
non-disclosure or material
mis-description of a medical history will
effectively undermine the value of a medical opinion. The decisive issue will
be the extent,
if any, to which the opinion was dependent upon factual
premises later shown to be untrue or inaccurate. Nonetheless, if the plaintiff
ultimately fails to prove any factual premise upon which the opinion was
apparently dependent then the opinion will be valueless.
Furthermore, this
conclusion cannot be avoided by advertence to the possibility that the author
of the opinion may have come to the
same conclusion by a different chain of
reasoning or, if asked, may have felt that the other premises were sufficient
to support
the conclusion without reference to the premise which had not been
proven. In the absence of further evidence to that effect, the
Master would
not have been entitled to act on speculation that the relevant medical expert
might have been willing to adhere to his
or her opinion on some such
alternative basis.

  

   22. This was not a case in which the plaintiff proved that the accident
would
have caused continuing incapacity and, in answer, the defendant pointed
to evidence that incapacity may have ensued in any event
due to the progress
of a pre-existing degenerative condition. Rather, it was a case in which the
prima facie opinions as to causation
had been dependent upon the absence of
such a pre-existing condition and that was a false premise.

  

   23. Ultimately, it was
incumbent upon the plaintiff to prove that even
though he had previously experienced neck pain and headaches, the neck pain
and headaches
which he suffered after the accident were caused by injuries
received as a result of that accident. No evidentiary burden fell upon
the
defendant unless and until the plaintiff had been able to establish a prima
facie case that the relevant incapacity was caused
by the accident, and that
could not be done on the basis of expert medical opinion in relation to which
the foundation or part of
the foundation consisted of a medical history which
was exposed as incorrect in a material respect. Accordingly, the Master's view
that he was unable to rely upon the evidence of the various medical experts to
this effect could only be impugned if it could be
demonstrated that the
history did not constitute part of the foundation for the opinion in question
or if it was apparent that the
opinion was supportable notwithstanding the
inaccuracy in that history.

  

   24. Secondly, it was submitted that the Master had
erred in finding that
the plaintiff's complaints of neck pain in 1991 undermined the foundation or
part of the foundation for the
medical opinions relied upon in support of his
claim of continuing incapacity due to an aggravation of the degenerative
cervical
spondylosis caused by the accident. This submission must obviously be
considered in the light of the evidence of the practitioners
concerned.

  

   25. Dr Black, in a report dated 20 February 1995 referred to the results of
an X-ray in January of that year which
revealed degenerative disc changes at
C5/6 and C6/7 and elicited a diagnosis by the radiologist, Dr Connors, of a
mild to moderate
lower cervical spondylosis. Dr Black concluded: ÒIt is
apparent that Mr Falasca is now suffering from degenerative cervical
spondylosis involving the two cervical interverbral discs mentioned. It is
also apparent that the injury in June 1993 was a significant
event in the
aetiology of this degenerative condition, however it seems likely that the
degenerative changes present probably pre-dated
June 1993 and the accident
acted as an aggravating factor rather than a total causative one, he certainly
complained at no time prior
to June 1993 of neck pain and incidentally my
records go back to 1972 when he was 14 years old."

  

  

  

  

  

   In a subsequent
report dated 5 July 1995 he offered the following opinion:

  

  

  

  

  

   ÒIt is apparent that Mr Falasca is suffering
from degenerative
cervical spondylosis. It is also quite definite that the motor vehicle
accident and whiplash injury have contributed
to the neck pain due to the
degeneration. It seems likely to me that the degenerative changes may well
have been occurring prior
to the motor vehicle accident but there were
certainly no symptoms associated with his neck up to the time of the accident.
I consider
that the motor vehicle accident was a very significant factor in
the appearance of his neck pain and also in the development of the
degenerative spondylosis now evident on his X-rays."

  

  

  

  

  

   27. Dr Black gave evidence and was cross-examined about
the implications of
the earlier complaints of neck pain to Mr Rumore. He agreed that the
observations in Mr Rumore's report were
consistent with manifestations of
degenerative cervical spondylosis and that if those manifestations had been
present for six weeks
that had been Òquite a significant period of
aggravation". He also agreed that the symptoms of degenerative cervical
spondylosis
are insidious in their onset and may occur without specific
trauma. He further agreed that once the symptoms of pain from cervical
spondylosis occurred, the condition was susceptible to aggravation from time
to time in the future. He acknowledged that the problems
Òwhich derived
from the motor vehicle were not of the magnitude which had existed whilst Mr
Rumore was treating him". When
he had seen the plaintiff some eight days after
the accident he had thought that the symptoms were those of a minor whiplash
injury
which would be self-limiting, but he had not seen him again in respect
of that injury for eleven months. He had seen him on other
occasions but
during the intervening period he had not then complained of neck pain. That
history, he said, suggested that the injury
was present before the motor
vehicle accident. He also agreed that the recoil from a shot gun could bring
about transient aggravation
of an underlying degenerative cervical spondylosis
and fly fishing might produce a similar result. Perhaps more significantly he
agreed that, given that there had been no trauma associated with the initial
onset of symptoms, the plaintiff was obviously susceptible
to non-specific
aggravation.

  

   28. It is plain from this evidence and, indeed, from the terms of Dr
Black's reports that the
absence of any symptoms associated with the
plaintiff's neck prior to the accident had been an important foundation for
his opinion
that the accident had been a very significant factor in the
appearance of the neck pain and in the development of the degenerative
spondylosis. It is also plain that he adopted a contrary opinion when the
truth was revealed.

  

   29. Dr Adler, a consultant
physician, referred in his report of 26 February
1996 to the fact that ÒMr Falasca denies any previous history of injury
to
the neck. He has no previous history of neck pain or headaches symptoms".
He described the plaintiff's then current symptoms in the
following terms:
Ò1. Cervicothoracic neck pain - this fluctuates in intensity but there
is some aching present most of the
time. There is no pain-free period. The
pain is severe enough to warrant almost daily use of analgesics which range
from Panadol
to the use of Panadeine Forte.

  

   2. Headaches - these radiate into the retro-orbital areas, particularly on
the right side.
Symptoms can range from a brief sharp pain to a prolonged
severe headache which requires Panadeine Forte to relieve it. Headaches
occur
on at least a daily basis. There is no associated nausea. They do not appear
to be aggravated by any specific neck movement,
although prolonged sitting can
aggravate them.

  

   3. Neck stiffness - this is present in the direction of neck extension with
grating and pain associated with movement in this direction.

  

   4. Aching sensation along the upper trapezii muscles

  

 
 5. Occasional pins and needles sensation in the left forearm.

  

   6. Infrequent but, at times, severe, symptoms of left sided
midthoracic
scapular level pain present for a few hours."

  

  

  

  

  

   30. Dr Adler referred in his report to an X-ray
of the cervical spine which
revealed the degenerative disc changes at C5/6 and C6/7 and noted a loss of
cervical flexion in the upper
cervical spine. He also noted that the plaintiff
had experienced neck pain, headaches with aching over the upper trapezius
muscles
since the accident. He concluded that: ÒMr Falasca has an
injury to the upper cervical spine affecting the left C1/2 and C2/3
facet
joints. This is entirely consistent with a hyperflexion injury as would have
occurred in the motor vehicle accident which he
has described. The symptoms of
retro-orbital headache and neck pain would be expected to arise from injury to
this area.

  

  

  

   There is evidence of injury to the cervicothoracic junction and upper
thoracic spine which would be expected to cause his
pain symptoms in this
area. The lower cervical neck ache also is contributed to from mild
degenerative cervical disease that is present
on X-rays taken in January 1995.
There is no evidence to suggest that degenerative changes were present prior
to his accident as
he had no symptoms of neck pain at that time. It is likely
that such changes have arisen as a result of the accident."

  

  


 

  

  

   31. In the context of this evidence the Master was entitled to conclude
that Dr Adler's opinion that degenerative changes
had arisen as a result of
the accident was based upon the premise that the plaintiff had not experienced
any pre-accident neck pain.
Dr Adler's opinion as to the existence and
causation of an injury to the upper cervical spine was the subject of a
further submission
which is referred to later in these reasons for judgment.

  

   32. Dr Goldrick, a consultant physician, who examined the plaintiff
for the
defendant in September 1996 was also given a history that the plaintiff had
suffered no neck injury prior to the accident.
He was dependent largely upon
the X-rays of the plaintiff's cervical spine which had been carried out on 23
January 1995 and noted
the degenerative disc disease at the C5/6 and C6/7
levels evident from these films. However, having regard to the time that had
elapsed
between the accident and the taking of those X-ray films he concluded
that it was impossible to decide whether the changes had pre-existed
the
accident. In the absence of such information, he was prepared to conclude, on
the balance of probabilities, that the plaintiff
suffered damage to those two
intervertebral discs as a result of the accident. Of course, as the evidence
of Dr Black demonstrated,
the neck pain in 1991 was consistent with the
existence of degenerative cervical spondylosis well prior to the accident and
the Master
was entitled to regard the validity of this conclusion as having
been impugned.

  

   33. Dr Battlay, a surgeon who examined the
plaintiff for the defendant in
August 1996, noted that the plaintiff Òdenies any previous neck
problems, injuries, accidents
or claims". He concluded that the degenerative
changes evident upon X-ray need not have been caused by the accident but that
the
accident may have contributed to them. Even if the foundation for their
opinion had been proven, it would have been insufficient
to enable the
plaintiff to discharge his onus of proof. However, the Master was entitled to
conclude that the opinion had in fact
been based upon a false premise.

  

   34. In short, we think that, viewed as a whole, the evidence was sufficient
to justify the
Master's conclusion that the medical opinion to the effect that
the plaintiff had a previously asymptomatic degenerative condition
which had
been rendered symptomatic by the accident had been based upon the premise that
the plaintiff had made no prior complaints
of neck pain. That premise was
false. No alternative premise appeared to support the opinion. Indeed, it
appeared likely that the
pre-existing condition had already become symptomatic
before the accident. Accordingly, the opinions in question were of little if
any value.

  

   35. Thirdly, it was submitted that the Master erred in failing to act upon
Dr Adler's opinion that the plaintiff
had an injury to the upper cervical
spine affecting the left C1/2 and C2/3 facet joints.

  

   36. The basis for that opinion was
not explained. Dr Adler's report did
include the comment: Òpalpatation demonstrates well localised
hypomobility, tenderness
overlying the C1/2 facet joint on the left and the C
2/3 facet joint."

  

  

  

  

  

   37. He also adverted to an X-ray of
the cervical spine but in that context
referred only to degenerative disc changes at C5/6 and C6/7 and a loss of
cervical flexion
in the upper cervical spine. It is not clear how a loss of
flexion could be revealed on X-ray but it is possible that Dr Adler was
able
to deduce it from the condition thereby revealed. However it remains a matter
of speculation whether his assertion of an injury
to the upper cervical spine
was founded upon his impressions of the X-ray upon his observations upon
physical examination of the
plaintiff, his understanding of the plaintiff's
medical history, or some combination of these factors. A similar degree of
uncertainty
exists in relation to the basis for his opinion that the injury
was consistent with a Òhyperflexion injury" as would have
occurred in a
motor vehicle accident. There is nothing in his report to indicate when any
such injury may have commenced and any
deduction that either was caused by the
accident would have been dependent upon the false history as to the onset of
neck pain. Nor
does the report reveal the basis for the further opinion that
the Òsymptoms of retro-orbital headache and neck pain would
be expected
to arise from injury to this area".

  

   38. As the Master observed, there has developed a practice in this court
of
parties tendering reports containing expert medical opinions without being
required by the opposing party to have the medical
practitioner in question
attend for cross-examination. Such a practice does save time and money but
parties who rely upon evidence
adduced in that manner need to be conscious of
the limitations necessarily involved. As Miles CJ said in Goldsborough v
O'Neill (1996)
131 FLR 104 at 105-6: ÒProfessional witnesses whose
reports are in evidence should not be brought to court to be examined
in chief
or to be cross-examined unless the examiner has made an informed decision that
something is able to be got from the witness
which is not in the report. The
party who puts in the report without calling the maker is normally bound by
the limitations of the
report, if any, and the maker should not be called to
be cross-examined on the report simply to avoid any imagined breach of the
rule in Browne v Dunn (1893) 6 R 67."

  

  

  

  

  

   39. In the present case the Master did not purport to reject the
conclusions
of Dr Adler on any basis other than that the history he apparently
relied upon was in fact incorrect. It may be accepted that a failure
to
disclose previous episodes of pain apparently associated with a degenerative
cervical spondylosis at the C5/6 and C6/7 level would
not, on its face, impugn
Dr Adler's opinion as to the injury in the upper cervical spine. On the other
hand, as Miles CJ observed
in Goldsborough v O'Neill, the party who puts in
the report is normally bound by its limitations. Dr Adler did suggest that
Òthe
symptoms of retro-orbital headache and neck pain" would be
expected to arise from injury to this area. He recorded the plaintiff's
complaints as being of cervicothoracic neck pain and headaches. His specific
diagnoses were as follows: Òa) Severe strain
injuries to the upper
cervical spine which are causing his headaches.

  

   b) Mild lower cervical degenerative disease and evidence
of strain to the
cervicothoracic junction which are causing his neck pain and discomfort over
the other trapezius muscle."

  


 

  

  

  

   40. Read as a whole the report seems to suggest that the plaintiff's
headaches and perhaps some associated pain
in the neck may have been caused by
an injury to the upper cervical spine, whilst the cervicothoracic neck pain
and the pain and
discomfort over the upper trapezius muscle were caused by
strain to the cervicothoracic junction and upper thoracic spine. It is
clear
that his conclusions in relation to injury to that region were dependent upon
the history of an absence of neck pain prior
to the accident and must
therefore be discounted.

  

   41. Nonetheless, it was in our view incumbent upon the Master to consider
whether any incapacity had been caused by the injury to the upper cervical
spine. Dr Adler did not give evidence orally. The Master
made no finding as to
whether he accepted Dr Adler's evidence as to the existence of that injury
and, given the absence of any adequate
explanation for his diagnosis and the
absence of any support for it from any other medical witness, such acceptance
should not be
assumed. There is nothing in his report to indicate that his
views should have been entitled to priority over those of other medical
experts.

  

   42. Furthermore, the plaintiff did not suggest that he had experienced pain
in two areas of his neck. His evidence
was that after the accident he
experienced stiffness and a sore neck. The stiffness was Òaround the
shoulders area". Dr Adler
did not suggest that this was pain which was being
referred from the upper cervical spine rather than emanating from the
degenerative
discs in the lower area of the spine where the pain and stiffness
were experienced.

  

   43. The plaintiff's condition progressively
got worse and he was obliged to
see Dr Black. He subsequently experienced soreness of the right arm but said
that he first noticed
that problem about the second time he went to see Dr
Black. That was, of course, about eleven months after the accident. Having
regard
to this evidence and to the limitations in Dr Adler's report, we think
that the plaintiff has failed to prove that his neck pain
was attributable to
an injury to the upper cervical spine rather than the onset of symptoms
associated with the degenerative cervical
spondylosis.

  

   44. Similar difficulties arise in relation to the plaintiff's claim that
the continuing pattern of headaches
was attributable to the accident. As
previously mentioned, Dr Adler thought that they were caused by injuries to
the upper cervical
spine. However, the Master did not make any finding as to
the existence of those injuries and, as we have already observed, he was
not
obliged to do so. The other medical practitioners who gave evidence seemed to
have concluded that the headaches and neck pain
were all attributable to the
one cause. For example, in his report of 20 February 1995, Dr Black said that
when he saw the plaintiff
on 17 May 1994 he complained of pain in the neck
which extended into both shoulders Òand also contributed to a
headache".

  

   45. It is also difficult to discount the likelihood that Dr Adler's opinion
as to the causation of the plaintiff's headaches
was at least partially
founded upon his understanding that the plaintiff had no previous history of
headache symptoms. In fact, the
plaintiff had had a number of absences from
school between 1986 and 1991 as a result of headaches which he described as
migraine.
He conceded that there may have been other occasions when he had
headaches of a lesser magnitude in respect of which he did not take
time off
school. It is true that the plaintiff said that he now gets more headaches and
that they last longer but Dr Adler was not
asked to express an opinion in the
context of a prior history of headaches. He was told there was no such
history. It should not
be assumed that Dr Adler would have reached the same
conclusions if he had been told that the onset of headaches had not followed
the accident but rather that there had been a long history of headaches before
the accident, although there had been an increase
in frequency and duration
after the accident.

  

   46. Of course, it may well be true that the increase in frequency and
duration
was caused by the accident. However, common human experience suggests
that symptoms caused by long standing medical problems may
improve or
deteriorate over time. Evidence of deterioration does not, of itself, prove
that the condition has been aggravated by
some supervening injury or cause.
Furthermore, in this case there was a continuing risk of aggravation due to
the plaintiff's recreational
activities such as shotgun shooting. It would not
have been open to the Master to infer that the increase in the frequency and
duration
of his headaches were caused by the accident in the absence of any
medical evidence to support that contention.

  

   47. Fourthly,
it was submitted that the Master should have concluded that
the plaintiff had developed a chronic pain disorder as a result of the
accident.

  

   48. Dr Dent, a consultant psychiatrist, provided a medico legal report
dated 12 March 1996 concerning the plaintiff's
continuing disabilities. He
also referred to the degenerative disc changes of the C5/6 and C6/7 levels and
noted that Òhe
is quite clear that before his accident there was no
history of painful neck and the symptoms in reference that have only emerged
since his accident". Dr Dent expressed the view that: Òhe certainly has
a Chronic Pain Disorder and this relates to cervical
spine dysfunction, for
which there is evidence on X-ray and imaging, which produces a clear pattern
of symptoms consistent with such
cervical spine dysfunction of discal lesion
and associated pain from soft tissues in and around the neck, where there may
be some
evidence of nerve root impingement, and for which there needs to be an
orthopaedic review and some ongoing treatment in place".

  

  

  

  

  

   He concluded:

  

  

  

  

  

   ÒI am unable to comment as to whether the accident has caused
the
spinal discal lesions and osteophytes, or whether it is considered that there
has been a substantial aggravation of a pre-existing
disability; one would
assume the latter is more likely since there has been the absence of complaint
before his injury; although
a formal statement of that again is within the
purvue (sic) of the specialist orthopaedic surgeon".

  

  

  

  

  

   50. Whilst
Dr Dent was of the view that the plaintiff did have a chronic
pain disorder he said that this was related to the plaintiff's cervical
spine
dysfunction for which, he observed there was evidence on X-ray and imaging. He
did not suggest that there was any psychiatric
basis for the chronic pain
disorder. Indeed, he observed that the plaintiff had no active symptoms of
anxiety or depression. His
report suggests that he regarded the causation of
the cervical spine dysfunction as essentially a matter for an orthopaedic
surgeon
and the tentative conclusions which he volunteered were again
dependent upon the absence of any prior history of neck pain.

  

   51. In all the circumstances, we are unable to conclude that the Master
fell into error in taking the view that the opinions supportive
of the
contention that the plaintiff had suffered more than a temporary aggravation
by a pre-existing condition in the lower thoracic
spine could not be relied
upon because they were substantially dependent upon an incorrect medical
history.

  

   52. Fifthly,
it was submitted that the Master had erred in failing to give
reasons for the rejection of the opinions of Dr Adler and Dr Dent.
It is true
that his analysis of the evidence of Dr Adler was somewhat limited but, in our
view, his judgment generally reveals the
basis for his rejection of their
conclusions.

  

   53. Mr Morris QC, who appeared for the defendant, argued that if any
evidentiary
burden could be said to have fallen on the defendant, then it had
been adequately discharged by the evidence of Dr Black. We accept
that, in the
context of the medical opinions relied upon by the plaintiff, the evidence of
Dr Black and the information concerning
the plaintiff's complaints of back
pain in 1991 were sufficient to displace any such evidentiary burden.
Ultimately, however, we
are of the view that the onus of proving any
continuing incapacity lay upon the plaintiff and that onus was not discharged.

  

   54. Finally, it was contended that the award of damages was manifestly
inadequate.

  

   55. In our view, it is significant
that Dr Black, who was the only medical
practitioner to be cross-examined in the context of the evidence of the
plaintiff's prior
history of neck pain, agreed that the symptoms evident when
he first saw him were of a minor whiplash injury which he thought would
be
self-limiting. He also agreed that the problems following the motor vehicle
accident were not of the same magnitude as those from
which the plaintiff
suffered when he was treated by Mr Rumore and that activities in which he had
engaged since the accident were
of a kind likely to precipitate further
transient aggravation of his underlying degenerative cervical spondylosis.
Once the opinions
of the other medical practitioners in the case were
rejected, there was no other medical evidence upon which the Master could
rely.
Of course, it was clear from the plaintiff's evidence that he continued
to experience significant symptoms but unless the Master
had some reason to
dismiss the evidence of Dr Black, he was really driven to conclude that the
accident had caused nothing more than
a temporary aggravation of a
pre-existing condition. In substance, this meant that the plaintiff was
entitled to damages which would
provide adequate compensation for the
additional pain and discomfort which he suffered during this temporary
aggravation. The Master
determined that the sum of $7,500 was sufficient for a
temporary aggravation of this kind. We are unable to conclude that this
assessment
fell outside the range of discretion reasonably available to him.

  

   56. We should also mention that during the hearing of the
appeal, Mr
Williams QC, for the plaintiff, applied for leave to adduce further evidence
from Mr Rumore and another physiotherapist,
Mr Cousins. It was conceded that
it could not be shown that this material was not available at the trial. It
could have been discovered
by the exercise of reasonable diligence.
Nonetheless, Mr Williams submitted that it should be admitted on the basis
that the plaintiff
was taken by surprise in that the Master had treated the
information contained in Mr Rumore's report as undermining the medical
opinions
relied upon by the plaintiff at trial. He submitted that the report
could not fairly be regarded as supporting the approach taken
by the Master
and that, consequently, counsel could not have been expected to have
anticipated such an approach. In our view, this
contention did not justify the
reception of the fresh evidence sought to be adduced. If the approach taken by
the Master could have
been impugned in the manner suggested then the appeal
would have succeeded on that ground. Fresh evidence would be relevant only
in
the event that a retrial is ordered. On the other hand, if, as we have found,
the Master had approached the relevant issue correctly,
then the mere fact
that the basis for his decision had not been foreseen by the plaintiff's legal
advisers' offers no basis for the
exercise of a discretion to admit fresh
evidence on the appeal. Whilst there may be power to admit such evidence, even
in circumstances
where it could have been obtained at trial by the exercise of
reasonable diligence, such a power should be exercised only in exceptional
circumstances where the interests of justice clearly demand such a course.
This is not such a case. Accordingly the plaintiff's application
was refused.

  

  

  

   The appeal must be dismissed.