Falasca v Morrissy [1999] FCA 277

FEDERAL COURT OF AUSTRALIA

Falasca v Morrissy [1999] FCA 277 DAMAGES - appeal against assessment - plaintiff gave seriously incorrect history to doctors‑ principle in Watts v Rake - whether rule attracted - whether evidentiary onus discharged - expert evidence - circumstances in which expert's opinion may continue to have some value after failure to prove assumption on which opinion based Watts v Rake (1960) 108 CLR 158 followed Purkess v Crittenden (1965) 114 CLR 164 followed LELIO FALASCA v MARGARET MORRISSY AG41 of 1998

MILES, COOPER, WHITLAM, MATHEWS AND MADGWICK JJ 25 MARCH 1999 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY AG 41 OF 1998

DISTRICT REGISTRY

ON APPEAL FROM THE FULL COURT OF THE

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: LELIO FALASCA

Appellant

AND: MARGARET MORRISSY

Respondent

JUDGES: MILES, COOPER, WHITLAM, MATHEWS AND MADGWICK JJ

DATE: 25 MARCH 1999

PLACE: CANBERRA

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 41 OF 1998

ON APPEAL FROM THE FULL COURT OF THE

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: LELIO FALASCA

Appellant

AND: MARGARET MORRISSY

Respondent

JUDGES: MILES, COOPER, WHITLAM, MATHEWS AND MADGWICK JJ

DATE: 25 MARCH 1999

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 This is an appeal by the plaintiff concerning the assessment of damages for personal injury suffered in a road accident on 10 June 1993 caused by the defendant's negligence. 2 The Master of the Supreme Court of the Australian Capital Territory awarded the plaintiff $7,500 for general damages (for pain and suffering in the past), $642 for interest thereon and $58 for one attendance, after the accident, on each of his medical general practitioner and a physiotherapist. A Full Court of the Supreme Court (Gallop, Higgins and Crispin JJ) unanimously dismissed the plaintiff's appeal against the Master's assessment and the plaintiff now appeals from the decision of the Full Court. 3 Two matters were argued before us. First, it was asserted that the Supreme Court and the Master had failed to apply the principle in Watts v Rake (1960) 108 CLR 158 at 160 (and further explained in Purkess v Crittenden (1965) 114 CLR 164 at 168). This concerns the evidentiary onus on a defendant to "disentangle" the causes and effects of a disability that pre-existed a compensatible accident from an aggravation or exacerbation resulting from the accident. The second matter concerned an alleged failure, by the Supreme Court, to accept the evidence of a doctor's opinion, which was said to have been uncontroverted at the trial.

Factual background 4 In order to understand the submissions, it is necessary to outline the background circumstances. The plaintiff was, at the date of the accident, a 35 year old primary school teacher with an additional part-time teaching job. After the accident he suffered from neck pain and headaches. His case was that he had suffered no such symptoms before the accident. 5 However, in cross-examination and from documents subpoenaed by the defendant, it appeared that, in December 1991, he had suffered bilateral cervico-thoracic and interscapular pain and right posterior shoulder and arm pain for a period of six weeks', the pain being "insidious in nature". After attempting to alleviate the pain himself with heat and stretching exercises at home, he saw a physiotherapist and was actively treated. He was again seen by the physiotherapist on three occasions in April 1992 "with a recurrence of low grade cervico-thoracic and interscapular pain of one month's duration". On the third of these visits "intermittent mechanical traction" was included in the patient's rehabilitation. In neither December nor April was any history of trauma suffered by the plaintiff. 6 In relation to headaches, it seems that in December 1991 the plaintiff complained to the physiotherapist of some discomfort at the back and front of his head. This followed his having had headaches of such severity that he was disabled from work on seven days over the five years to March 1991. 7 The plaintiff had provided every medical expert in the case with a history denying pre-accident neck pain or headache. Not surprisingly, each such expert appears to have treated that history as being significant. There was a near-unanimous view, based on that history and other matters, that the plaintiff had a pre-existing degenerative condition at the lower thoracic levels of his spine, and that this condition, previously asymptomatic, had been rendered symptomatic by the accident. 8 The plaintiff first saw Dr Black, his general practitioner, eight days after the accident with a complaint of neck pain. Dr Black diagnosed "minor whiplash injury involving his cervical spine" and referred him for a single physiotherapy treatment. The plaintiff did not have that treatment immediately, but did so some weeks later. The Master found, on an unappellable basis, that Dr Black had recorded no further complaint of neck pain after his initial post-accident presentation until 11 months later and that, further, Dr Black was a careful doctor who would have recorded any such complaint had one been made. Accordingly the Master found that there was no such further complaint until then. 9 The Master found, for reasons that seem to us not to warrant appellate rebuke, that the accident had caused a temporary aggravation of a degenerative cervical condition which first manifested itself in late 1991 and 1992. The Master did not accept that, by May 1994, when the plaintiff again complained of neck pain to Dr Black, the accident was still the cause of the pain. Again, there was ample material to justify the rejection of that part of the plaintiff's proposition. Accordingly, the Master concluded: "I must assess the plaintiff on 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." 10 The plaintiff was also unfortunate enough to have suffered a serious heart condition, unrelated to the accident, for which he underwent major surgery in 1994. Nevertheless, by the time of trial, the plaintiff was able to engage in a range of leisure pursuits suggestive of little if any persistent neck disability.

The principle in Watts v Rake 11 The Full Court examined Watts and Purkess with some care and concluded, among other things, that; "the principle in [Watts] 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 … As the High Court pointed out in [Paric v John Holland (Constructions Pty Ltd (1985) 62 ALR 85] (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.

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." 12 It is enough to say that we agree with the way in which the Full Court dealt with this whole matter. We would add only this. If the rule in Watts was attracted, the defendant did, in fact, discharge its evidentiary onus. The Master found, quite permissibly, that the post-accident exacerbation of the pre-existing condition had ceased within 11 months. Thereupon any question raised by the principle in Watts was resolved. There was no continuing disability related in any respect to the defendant's negligent act. There was, therefore, no relevant disability to be untangled.

Dr Adler and the alleged injury in the upper cervical region of the spine 13 It is clear from the Master's silence on this subject and the reasons which were given for the small award made that he did not accept that post-accident headaches suffered by the plaintiff were caused or aggravated by the accident. It is not entirely clear why. 14 The Full Court considered the evidence closely and concluded for itself that, for a number of reasons, a report by Dr Adler, a consultant physician in rehabilitation medicine, ought not be accepted as having proved, for the plaintiff, that either his neck pain or his headaches were due to the upper cervical spine injury. We consider that the Full Court came to the correct conclusion. In our view it is enough to refer to one matter only to demonstrate the correctness of that conclusion. 15 Dr Adler was engaged by the plaintiff's solicitors to express an opinion and saw the plaintiff in February 1996. He too, like the other doctors, took a history that there had been no neck pain or headache symptoms before the accident. Dr Adler found "well localised hypomobility and tenderness overlying the C1/2 facet joint on the left and the C2/3 facet joint"; these he said were demonstrated by palpation. He had some x-ray views taken and felt that these supported his diagnosis by demonstrating a "loss of upper cervical flexion". He diagnosed (so far as presently relevant) "severe strain injuries to the upper cervical spine which are causing his headaches" and referred to "stiff facet joints that have been injured … which are causing the headaches". Dr Adler's report was tendered without objection. He was not required for cross-examination nor was he asked by the plaintiff's legal advisors to reconsider the matter in the light of the true history. 16 A fair reading of Dr Adler's report indicates that he relied to a significant degree on the erroneous history given to him by the plaintiff. For example, he said, under the heading of "Summary and Assessment" that: "Mr Falasca has since [the accident] experienced neck pain [and] headaches … 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". 17 Dr Adler's conclusions about the headaches seem to us to have rested upon three premises, namely: the history; the stiffness found on palpation, and; the confirmatory x-ray views. One of these premises, the history, was shown to be false. We have set out the observations of the Full Court on the invalidation of expert opinions by failure to establish the truth of their premises. It might also be, in some cases, that an expert's opinion continues to have some value, despite failure to prove an assumption on which it has been based. For example, inferences may be able to be drawn from the expert's demonstrated reasoning processes or from otherwise acceptable opinions voiced by the expert. If a liberal approach is taken, there can still be no reasonable assumption that Dr Adler would have adhered to his opinion about the cause of the plaintiff's post-accident headaches, despite the collapse of one of the three pillars on which it was apparently built. Such an assumption would, in our view, be mere speculation and, as such, impermissible. 18 The plaintiff was left without adequate medical evidence to support his claim. It was not suggested that the course of events alone, to which in some cases a lay fact-finder might permissibly look, would provide an adequate basis for attributing his post-accident headaches or any stiffness in the upper cervical spine to the accident. Among other things, the plaintiff's evident unreliability as an historian would stand in the way of such an inference.

Conclusion 19 For these reasons the appeal must fail. It will be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 25 March 1999 Counsel for the Applicant: Mr D Jackson QC with Mr M Brabazon

Solicitor for the Applicant: Scott Sheils and Glover

Counsel for the Respondent: Mr L M Morris QC with Mr C E Adamson

Solicitor for the Respondent: Abbott Tout Harper and Blain

Date of Hearing: 1 March 1999

Date of Judgment: 25 March 1999