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Tate v Johnson QDC 274
DISTRICT COURT OF QUEENSLAND
Tate v Johnson & Anor  QDC 274
GEOFFREY DOUGLAS TATE
SHANE ANTHONY JOHNSON
RACQ INSURANCE ABN 50 009 704 152
Magistrates Court Rockhampton
21 December 2018
29 November 2018
Devereaux SC DCJ
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – Where appellant injured in motor vehicle collision – Where liability admitted – Where appellant suffered exacerbation of pre-existing neck pathology – Where, after collision, appellant underwent surgery, followed by rehabilitation – Whether learned magistrate erred in finding that neck symptoms were related to pre-existing pathology and not the collision.
R D Green for the appellant
G C O'Driscoll for the second respondent
Grant & Simpson Lawyers for the appellant
Cooper Grace Ward for the second respondent
- The appellant was injured in a car crash at Emerald on 22 December 2014. He was not at fault. Liability was admitted. The appeal is against findings by the learned magistrate at Rockhampton in reasons delivered on 8 February 2018.
- The appeal is by way of re-hearing.
- The grounds of appeal are long. As counsel for the appellant put it in the written outline, the essential argument in the appeal is that the learned magistrate was wrong to find that the neck symptoms complained of by the appellant were related to a pre-existing pathology rather than the effects of the collision. That finding informed the conclusions regarding general damages, loss of earning capacity and future expenses.
- Her Honour said:
The medical evidence supports that the most likely result is that the neck pain now experienced by Mr Tate has been caused by the exercises he undertook in rehabilitation after his heart surgery in July 2015 which aggravated his – a pre-existing condition and was not causally related to the motor vehicle collision. I find that Mr Tate suffered an injury to his cervical spine in the motor vehicle collision and that the symptoms of a pre-existing condition were aggravated, that is, made worse by the impact resulting in the symptoms of his neck and shoulders. However, these symptoms abated over the next several weeks or months and the motor vehicle collision is not causally related to his current pain nor his current incapacities.
His pre-existing neck pathology was aggravated by the exercises he carried out in his rehabilitation after heart surgery.
- It was common ground that the plaintiff had a pre-existing cervical spondylosis. A CT scan in 2010 revealed:
At C4/5: left uncovertebral osteophyte producing significant left neural foraminal narrowing.
- It was common ground the appellant suffered an injury which exacerbated the pre-existing injury. As Dr Gillett, Orthopaedic Surgeon called by the plaintiff, concluded in his report, “the cervical spine has had an injury aggravating pre-existing symptomatology causing it now to be more symptomatic.”
The appellant’s evidence about his neck symptoms
- The appellant said he did not have problems with his neck at the time of the accident. He did not suffer from neck pain or restricted neck movement “except to the extent that it has been associated with my pre-accident shoulder problems.” He never experienced neck pain from playing golf (Exhibit 4, the Quantum Statement (QS), dated 17 November 2017, paragraph 6).
- After the collision he felt immediate neck pain radiating into both shoulders (QS paragraph 11). At trial, he said he could feel the pain once he was at the hospital (1-15.25).
- He continued to suffer neck pain into 2015, other injuries resolved over a few months. (QS paragraph 16). By late 2015 there had been no improvement in the neck condition (QS paragraph 20).
- In July 2015, the plaintiff underwent heart by-pass surgery. After 7 days in hospital, and then a wait of 6 weeks, he underwent 6 weeks of rehabilitation. Some of the exercises made the neck pain worse (1-14.15-30).
- Before the surgery, although the pain “was there”, other health matters put it “on the back burner”. The pain “started to manifest itself a lot more” during the rehabilitation period “because of the style of exercises” he was required to do (1-17.25). Since October 2015, the pain had been “constantly aggravating. Like it just binds up.” He continued, “If I keep doing some particular thing, whether it’s gardening or whatever, it gets to the point where I can hardly move my neck.” (1-17.35-40)
- Under cross-examination, the appellant said:
“… with the other pain that I was suffering from the heart condition I wasn’t, up until late October, really aware of how much the neck was starting to affect me because it was just there but it wasn’t part of what I was going through. But, yes, I found it – I found it more noticeable when I was trying to do the exercises at the heart rehab.” (1-27.40)
Asked to express the difference if “zero was no pain and 10 is the worst pain imaginable”, the appellant answered,
“Anywhere between three and six. Like, on a good day it might be three. On a bad day it might be between six and seven but it’s never, I think I’ve experienced pain that gets up around the category of 10 and I wouldn’t ever put it in that category.”
This he clarified, was the pain level from October 2015. Then this question and answer:
“So by that do I understand before the increase in pain, when you were doing the exercise, it was under three? --- It would have been around about what you term two or three in that is was – was what I call uncomfortable.”
An error in fact finding
- Returning to the findings set out above, if her Honour meant to include neck symptoms in the finding that “these symptoms abated over the next several weeks or months”, that was not supported by the evidence. Similarly, her Honour had earlier said, “He suffered immediate neck pain following the collision but this was not debilitating and eased after a short time.” I have already set out the appellant’s evidence of continuing neck symptoms. The appellant’s evidence was only that other injuries resolved over the months.
- It might be that the notion that the symptoms had subsided might have been generated by certain questions put to witnesses. For example, the respondent’s counsel put to Dr Halliday a scenario which included the following:
“the plaintiff had given some evidence … that the neck pain was under a level of three, he had – did not initially go and complain of neck pain firstly after the accident, but there’s reference to it in the hospital notes. And then the neck pain does not become problematic for him until after his heart attack ….”
- The following questions were put to Dr Gillett, on the premise of the appellant’s reported significant increase in neck symptoms during the rehabilitation exercise program:
If we assume, as well, the records show that there was no complaints of pain to general practitioners from the period of time up until the heart attack. A possible explanation is that the cervical spine was made symptomatic by the exercise at the end of rehab? --- That is correct.
And if the pain was to have been emanated from the accident in question, one would have expected it to be consistent, that is, consistent from date of injury? --- I would expect that.
Counsel then recounted the appellant’s evidence of an increase in pain from “under a 3” to “up to 6” and then asked,
Now, on that scenario, if all that’s accepted, that’s the underlying degenerative condition of the neck becoming symptomatic by the rehabilitation, rather than the accident, isn’t it? --- I would support that.
- I do not suggest counsel incorrectly stated the evidence, but the questions possibly suggested that the appellant did not have continuing symptoms because he did not complain about them to a doctor. The appellant’s evidence was that he did have symptoms from the time of the collision up to the time of the surgery but he put it on the back burner while occupied by other problems. As he later explained, he considered himself of an age group where, “even though my wife now thinks I’m complaining too much, you generally didn’t complain. You just got on with it.”
- Although the learned magistrate noted an apparent inconsistency between the appellant’s evidence and medical records, generally her Honour found the appellant gave “genuine and honest evidence and did not seek to exaggerate his injuries, his pain levels or his inability to carry out tasks.” On that basis, it was not open to find that his neck symptoms abated over several weeks or months after the collision. This finding of primary fact seemed to lead to the crucial inference that “the motor vehicle collision is not causally related to his current pain nor his current incapacities.”
- Whatever the cause of the error, I am satisfied the appellant has shown the learned magistrate erred in the finding of a primary fact.
The appellant’s case at trial
- In the written outline, Counsel submitted that the appellant’s evidence, properly understood, was not that the rehabilitation exercises caused an aggravation or exacerbation of symptoms that had been present since the collision, but that there was a new appreciation of the symptoms that had been present since the collision. At the hearing of the appeal, slightly differently, it was submitted that the evidence of the appellant, properly understood, was not that there was a lasting increase in the symptoms suffered by the appellant after the course of rehabilitation exercises. The appellant’s case was not that the defendant should be liable in damages for injury suffered at the collision but made (enduringly) worse by the rehabilitation exercises such that, among other things, he was prevented from taking up an opportunity for employment. It was that if there was a spike in pain caused by the exercises, there was no evidence that it continued. So, consistently with the appellant’s Quantum Statement, the disabling symptoms which prevented the appellant taking up the job offer were continuous from the collision.
- There are two problems with the submissions. First, it is not informative to refer to the Quantum Statement because in it there is no reference to the rehabilitation exercise program. The appellant refers to bypass surgery in July 2015 after which his general health improved “so that by late 2015 my level of activity returned to how it was prior to 2015”. He then blandly asserts that “by late 2015 there had been no improvement in the condition of my neck and I realised that my accident-related neck injury was likely to have ongoing consequences …”. Second, as I have outlined, the appellant clearly said there was a significant increase in the pain from and after the time of the rehabilitation exercises. That is, upon my own review of the record, the inference to be drawn from the appellant’s evidence was that his symptoms became and continued to be worse after the rehabilitation exercise program. The evidence does not support a finding that this was just a new appreciation of, or a temporary spike in, symptoms such that the symptoms complained of in, for example, 2016 when the appellant was trying to perform the duties of the proposed employment, was at the level experienced between the time of the collision and the heart surgery.
- On that view of the facts, the plaintiff’s case, as put, was not made out.
The medical evidence
- In any case, upon a review of the record I am not satisfied the conclusion reached by the learned magistrate - that the appellant had not shown that the disabling injuries which prevented his taking up the employment offered to him were caused in the collision – was wrong.
- The doctors, in their reports, do not comment on the appellant’s symptoms before and after the exercise regime. I infer it was not part of the history the appellant gave them.
- The history taken by Dr Gillett includes a review by a GP and that the appellant:
“Continued with the physiotherapy exercises he had been doing pre injury.
Subsequently the claimant has moved from Emerald to Hervey Bay and noticed symptomatology associated with his golf. He advises me that a professional golfer had seen his swing and game deteriorate over a 12 month period.”
- The history recorded by Dr Halliday, who examined the appellant on 28 November 2016, included, “He followed up with his general practitioner about a month [after the collision] because he had ongoing symptoms in his neck and shoulders. A few months later while doing some garden work his neck pain got worse again.”
- The history taken by Dr McCartney included,
“He was looking for work but in July 2015 he suffered a myocardial infarction necessitating bypass surgery.
Once he recovered from this cardiac surgery he again started looking for work. …
He states that he was offered work in organising logistics but had difficulty due to neck pain and stiffness.”
- The opinions expressed must, therefore, be considered subject to their evidence at trial.
- At trial, Dr Gillett reiterated his opinion that the appellant had “a pre-existing pathology in the neck, which was aggravated”. I have already extracted part of the cross-examination of Dr Gillett. Before that part came the following:
“I ask you to set this hypothesis, depending upon her Honour’s rulings, Mr Tate had indicated that there was a significant increase in his neck symptomatology when he was undertaking a period of rehabilitation post his cardiac surgery in October of 2015. You appreciate that he had a ---? ---Yep.
---a cardiac problem in 2015? ---Yes.
Mr Tate had indicated that he was carrying out about six weeks of rehabilitation work and in that rehabilitation work, he would do some circuit training, and one of the exercises he would do would be to – I think it might be a lat pull down, where [he] would hold his hands in front of himself at or about face level. He would grab onto a bar and he would pull down to his hands, in a downward motion, until his hands were about – at or about his waist? ---Yes.
He indicated that, as the weights increased – that is, it was limited to weights on the machine---? ---Yes.
---as the weights increased into that six months, he then noticed a significant increase in the pain in his neck, up to a level of 6, where it had previously been 3? ---Right.
And he had also indicated, at that stage, he noticed a catching in his neck that was never previously there, and that all seemed to correlate at the end of that six week period of rehabilitation therapy? ---Yes.
Now, if we assume, as well, the records show that there was no complaints of pain to general practitioners from the period of time up until the heart attack. A possible explanation is that the cervical spine pain was made symptomatic by the exercise at the end of the rehab? ---That is correct.”
- Then followed the passages I have already set out at paragraph ..
- In re-examination, counsel reminded Dr Gillett of the appellant’s pre-collision activities and their reduction after the collision and asked,
“Are you in a position to be able to say whether or not the aggravation of symptoms in late 2015 is related to the effects of the accident or any underlying pre-existing condition?--- I think the – to support the effect of the accident, he has to be made – he has to be worse after the accident and a continuous symptomatology, and then the exercise regime of 2015, if the symptom complex was such that he had a increase in the symptomatology post that exercise, and then it settled to the level it was pre-the exercise, then the exercise would be regarded as a temporary exacerbation of the pathology. If the symptom complex continues after that, at a higher level than before the exercise, then it’d be a permanent exacerbation of symptoms – of the pathology, causing symptoms. The pathology from the road traffic accident would be regarded as pretty well stabilised by that length of time, from the point of view of the exacerbation effects. So if he gets worse and then gets better to a level it was prior to the accident (sic. exercises?), then I would suggest that residual issues are from the accident. If he does the exercises and is permanently worse after the exercises, then I think doing the exercises has contributed to his ongoing disability.
Right. So that really comes back to what Mr Tate himself says about his experience of the symptoms? ---Correct.”
- It does not seem to me that Dr Gillett’s answer advanced the appellant’s case regarding the causation of his symptoms after the rehabilitation exercises. Counsel referred to it at the hearing of the appeal with respect to the appellant’s ability to carry out the tasks of the proposed employment.
- Dr Halliday, in his report, wrote that the appellant:
“suffered a soft-tissue injury to the cervical spine which aggravated pre-existing symptomatic cervical spondylosis which was already undergoing treatment. Since the accident Mr Tate reports that his symptoms have improved but he continues to suffer with symptoms similar to those which he had before the accident.”
- Under cross-examination Dr Halliday agreed the appellant presented with neck symptoms, some of which related to the collision.
- I have already referred to the questions put, in re-examination, concerning the cause of symptoms after the rehabilitation exercises. The balance of the questions was as follows:
“And then the neck pain does not become problematic for him until after his heart attack in July of 2015, he’s doing some six weeks of rehabilitation in the Harvey Bay Hospital, and the plaintiff had indicated as a result of that rehabilitation over the six week period, he was doing an exercise where he would stand in front of a machine, he would hold his hands and grasp onto a handle and pull his hands directly down in front of him from about eye level to waist level. And at the end of that six week period as the weights were increased with the exercise, he was noting increasing pain in his neck that went to a level of three up to six, and he would notice at that stage that his neck would catch. Now, if we assume – if the court accepts those facts, does that have any relationship to the accident or the pre-existing condition – firstly, the pre-existing condition?--- It could easily be consistent with the pre-existing condition. Heavier weight at that height as – as the weight increases could exacerbate underlying – temporarily exacerbate underlying cervical spondylosis, i.e. it’s an activity that you’d want to avoid as it would just cause more neck pain.
And – and does the catching, or the sensation of catching described by the plaintiff, have any relationship with the osteophytes that were viewed in the radiology that Dr Janus spoke about when he was seeing her in 2010? --- [indistinct] cervical spondylosis, not specifically to the osteophytes, but the whole process of the degenerative change of the discs at that level, and the fact that it joins behind the spinal chord, that make up a whole level of [indistinct].
Could that activity in itself make the underlying degenerative condition symptomatic, that is the …? --- Yes, yes.”
- It was not accurate to say to the doctor that the appellant’s evidence was that the neck pain did not become problematic for him until after the heart attack. Dr Halliday’s opinion is thereby less useful.
- Dr McCartney, reported, with respect to the neck injury, that the appellant had suffered musculoligamentous neck strain against the background of degenerative disc disease. In his opinion, “ongoing symptoms are due to the pre-existing underlying pathology.” The natural course of the underlying constitutional shoulder and cervical spine pathology was not altered.
- Dr McCartney said, under cross-examination, that he thought the symptoms “at the time of the accident, and for a significant period of time afterwards, was directly linked to the accident.” But, at the time of examination, in July 2017, the neck and shoulder symptoms were the natural progression of the pre-existing underlying pathology. He continued:
“The motor vehicle accident of considerable speed and forces would have exacerbated or aggravated the underlying conditions. Exacerbated is a more correct term. The ongoing symptomology can be related to the pre-existing underlying condition. It’s possible it’s related to the jarring force still. It’s a very long period of time, considering there was no structural damage found in either the neck or the shoulders, to presume that ongoing symptoms are due to the soft tissue jarring incident. That’s an unusual phenomenon.”
- Taking all of the evidence into account, I am not persuaded her Honour was wrong to act on the medical opinion and conclude that the disabling pain suffered during and after the rehabilitation exercises was not caused by the collision, either because it was itself an exacerbation of the pre-existing pathology, or because the effects of the collision must be taken to have subsided, leaving only the underlying pathology as the cause of continuing symptoms. In my respectful opinion, despite the error of primary fact, the conclusion reached was not wrong. I reach the same conclusion.
- The appellant did not show, on the balance of probabilities that the disabling pain was caused by the collision.
- It does not seem to me to be necessary to deal in detail with the remaining grounds. The appeal must be dismissed subject to the question whether the difference between my finding as to the duration of the neck symptoms from the collision and the finding of the learned Magistrate that I consider was made in error - probably a matter of months - requires re-assessment of general damages. Mr Green, for the appellant, submitted that if the appellant’s primary submission succeeded I would need to reassess the ISV finding. The appellant’s primary submission has not succeeded. The parties had agreed on the item number and her Honour, as Mr Green pointed out, found at the lower end, namely ISV 7 in a range of 5 to 10. In the end, the extent to which the view I reach differs from her Honour’s does not require an alternative finding on the adverse impact.
- As to ground 2, the central issue was whether, on the premise that the respondent was liable for loss of earning capacity due to appellant’s neck symptoms at the relevant time, the learned magistrate wrongly held the appellant was unable to perform the proposed role. As I have found, consistently with the learned magistrate, the premise is not made out.
 UCPR rr 785, 765.
 Some of the 12 grounds are better understood as particulars of grounds 1 and 2.
The primary grounds of appeal reduce to the following: (italics added)
- The learned magistrate was wrong in the assessment of general damages; using an assessment at ISV 7; that was wrong because it did not include damages for the neck injury; because her Honour wrongly found the continuing neck symptoms were not caused by the accident; because her Honour wrongly concluded that the symptoms were caused by exercise undertaken during rehabilitation after heart surgery; because her Honour wrongly concluded that that was the opinion of Dr Gillett and Dr Halliday; and because her Honour wrongly concluded that the evidence supported that finding; because her Honour wrongly disregarded the difference between disability and impairment and because her Honour wrongly failed to have proper regard to the appellant’s evidence about how the symptoms developed.
- Her Honour wrongly assessed loss of earning capacity because her Honour wrongly found the appellant was unable to take up a certain job because of pre-existing neck and shoulder problems and not because of the collision; because her Honour misapprehended the duties involved in the role based on the evidence of the appellant and others and misapprehended the medical evidence; and because the finding was against the weight of the evidence and against the more compelling inference to be drawn from the evidence.
 1-41.15-45; 1-77.28-43.
 1-81.25 – 45.
 Quantum Statement paragraph 19.
 Quantum Statement paragraph 20.
1-80 – 81.
 1-82.35 – 1-83.5.
 1-41.10; 1-43.40.
 1-48.40 – 1-49.15.
 2-19 – 20; 2-23.35.
- Published Case Name:
Tate v Johnson & Anor
- Shortened Case Name:
Tate v Johnson
 QDC 274
21 Dec 2018