Where the cause of psychological sequelae following an accident changes, so too may the entitlement to damages

When physical symptoms caused by an accident have ceased, do psychological symptoms secondary to those symptoms also cease to be causally related to an accident, and who bears the onus of proof? The NSW Court of Appeal recently explored this issue in Dungan v Padash [2021] NSWCA 66.

 

Author: Rihab Abdul-Rahman Judgment date: 23 April 2021
Citation: Dungan v Padash [2021] NSWCA 66
Jurisdiction: Supreme Court of New South Wales Court of Appeal1

Principles


  • Once the physical symptoms caused by an accident have ceased, psychological symptoms secondary to those symptoms also cease to be causally related to an accident.
  • Although a defendant has an evidentiary onus to show that continued symptoms of pain are not attributable to an accident, once that onus is discharged, it is for a plaintiff to show that the continuance of psychiatric symptoms relates to the accident caused pain, or the consequences of that pain.

Background

The Claimant suffered a lower back injury and psychological injury as a result of a motor vehicle accident that occurred on 30 November 2016.

It was agreed that the Claimant's lower back injury was a result of aggravation of existing degenerative changes. It was also agreed that the Claimant's psychological injury, namely an adjustment disorder, was linked to the physical pain resulting from the subject accident.

The Primary Judge found that the Claimant's physical injuries subsided within a year of the motor vehicle accident but the Claimant continued to suffer ongoing psychiatric injuries in the form of an adjustment disorder.

Damages of $278,817.75 were assessed.

The Primary Judge did not accept the opinion that once the Claimant's physical injuries subsided, so too did his psychiatric morbidity.

On appeal, the Defendant contended that the primary judge erred in finding that, after a year from the motor vehicle accident, the Claimant's ongoing psychiatric injury was causally related to the subject accident and that if there was any psychiatric disorder, it was not referrable to the physical injuries.

By way of cross-appeal, the Claimant challenged the finding that the physical restrictions attributable to the accident subsided within a year of the accident and argued that his psychological condition continued to be related to the physical injuries sustained in the subject accident. The Claimant further contended that given his lower back injury was aggravated by the subject accident, the onus was on the Insurer to provide evidence explaining how and when the Claimant's injuries ceased to be related to the accident.

Decision

Ultimately, the court  found that:
  1. The physical pain from which the Claimant suffered was the only source of his psychological condition.
  2. There was sufficient evidence to determine that any physical injury would have resolved within 12 months from the subject accident. Ongoing pain was attributable to pre-existing degenerative changes that would have been symptomatic in any event.
  3. Given that the Claimant's physical injuries subsided within 12 months of the subject accident, there was nothing to link the psychological condition from which the Claimant now suffers, with the subject accident.
  4. Given that the Claimant's psychological injury was linked to ongoing physical pain, but such pain was no longer attributable to the subject accident, the primary judge erred in failing to find that the Claimant's ongoing psychological symptoms were not causally related to the accident
  5. The primary judge failed to limit the award of damages up until 12 months following the subject accident.
In relation to the key issue, White JA stated, at [53]:

" The primary judge said he saw no reason why a cessation of physical morbidity should necessarily result in an end to mental health concerns...But the evidence of Dr Jungfer, which the primary judge accepted….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."

Having correctly found that the claimant's mental harm was associated with his pain and restriction, and that such pain and restriction was no longer attributable to the accident, that should have led the primary judge to find that the claimant's ongoing psychological symptoms were not causally related to the short-term trauma suffered from the accident.

In her dissenting judgment McCallum JA emphasised that any assumption that a secondary condition will necessarily cease with the resolution of the primary condition can be displaced by evidence. In her opinion, that had occurred in this case.

Insofar as the onus of proof was concerned, White JA observed, at [37]:

" 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 expert medical) 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…(Ongoing) pain was explicable as the result of degenerative changes in the lumbar spine attributable to the pre-existing degenerative changes."

Final result

The Supreme Court set aside the previous judgment and reduced the Claimant's damages to $41,965.65.

The Claimant was ordered to pay the Defendant's cost of the appeal.

Why this case is important

This case illustrates the importance of acknowledging that the cause of psychological sequalae following an accident can change. If the evidence establishes that the physical effects of an injury resolve and symptoms are replaced by some other cause, such as degenerative changes, it may be argued that any ongoing psychological symptoms are no longer accident related. The onus of proof remains with the defendant to exclude the accident as the cause of ongoing symptoms. There may well be cases where ongoing psychiatric symptoms are referrable to both continuing physical injuries and some other cause. In those cases, the entitlement to damages will not necessarily be lost.


White JA, McCallum JA & Emmett AJA

Contributors

Rihab Abdul-Rahman Lawyer