Glen v Sullivan [2015] NSWCA 191

43 In Watts v Rake, the defendant contended that part of the plaintiff’s condition attrial was traceable to causes other than the accident and that even if there had been no accident he would have become prematurely incapacitated by reason of a pre-existing arthritic condition. Dixon CJ said that there is a presumption in the plaintiff’s favour that the defendant must overcome:

“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.”

44 Menzies J stated the principle as follows:

“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 as 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.”

45 The language used by Dixon CJ and Menzies J perhaps suggests that in the

situation they describe, the burden of persuading the trier of fact shifts to the defendant. In Purkess v Crittenden,41 however, the High Court made it clear that Watts v Rake should not be interpreted in this way. The joint judgment explained the correct position as follows:

“where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It 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 (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.”

46 Windeyer J, who had concurred in Watts v Rake without further reasons, observed in Purkess v Crittenden that the earlier decision had been “misunderstood”:

“This has occurred from a failure to distinguish between the two main senses

in which the term ‘burden of proof’ is commonly, but perhaps confusingly, used

by lawyers …In a personal injury case the ultimate burden is on the plaintiff to establish the extent of his injuries caused by the conduct of the defendant. If when the tort occurred the plaintiff was suffering from a progressive disease which, even if he had not been tortiously hurt, would certainly and within some reasonably predictable time have disabled him in the same way as the tort did, then the defendant’s conduct has merely hastened the inevitable; and damages must be measured accordingly. But a plaintiff, tortiously injured, who suffers

thereafter in a way in which he had not previously suffered, may in the absence of any countervailing evidence rely upon the prima facie conclusion that for his disabilities and sufferings the defendant is responsible. It is not incumbent on the plaintiff to lead evidence to displace or discount the inference to which the facts would otherwise give rise. But he must prove his case: and when the whole of the evidence is before the tribunal of fact the burden is on him to establish the measure of his damages. … The ordinary conclusion when a man suffers a hurt is that all the consequences that follow it are attributable to the events that immediately caused it. If it be suggested that this is not so, that some of the apparent consequences are not causally related to it, then some material is required to support that suggestion. It is in this sense and at this stage that a burden of adducing evidence is upon the defendant.”

47 In summary, the position can be stated as follows:

“Where the plaintiff establishes a prima facie case that the incapacity has

resulted from the injuries sustained in the accident, the defendant has the

burden of adducing evidence to show that the incapacity would have come

about independently of the accident, for example by reason of a pre-existing

degenerative condition: … However, the burden of proving on the balance of

probabilities that the incapacity was caused by the accident always rests on

the plaintiff: …”

In certain cases it is necessary to take account of the principle that, in

assessing damages, the law takes account of hypothetical situations in the past and the chance of future events occurring.45 However, neither party

suggested that the present is such a case.

Does the Principle Apply in this Case?

48 Mr Rewell SC, who appeared with Ms Kumar for the respondent, submitted that the principle stated in Purkess v Crittenden does not apply to the circumstances of the present case. He pointed out that in both Watts v Rake and Purkess v Crittenden, the issue was whether the plaintiff’s pre-existing degenerative condition would have led to incapacity in due course even if the accident had not occurred. Mr Rewell contended that the present case is distinguishable because it does not involve any supervening incapacity. The issue is whether the appellant’s continuing incapacity is attributable to the accident or, as the primary Judge found, is no longer causally related to the accident.

49 In my view, notwithstanding the factual difference identified by Mr Rewell, the principle stated in Purkess v Crittenden applies to the present case. There was no dispute at the trial or on the appeal that the accident had caused the appellant to sustain some physical and psychiatric injuries. It was also not in dispute that the appellant continued to suffer from serious psychological disabilities at the date of the trial. In principle, it is difficult to see why the respondent should not have borne the burden of adducing evidence to rebut what Dixon CJ in Watts v Rake referred to as the presumption that the appellant’s continuing disabilities were causally related to the accident. To adapt the language in Purkess v Crittenden, once the appellant made out a prima facie case that her continuing psychiatric disabilities resulted from the respondent’s negligence, the onus of adducing evidence showing that the disabilities were wholly the consequence of the appellant’s pre-existing condition fell on the respondent.

Nigel Rein, Choose your life raft – 5/7/2006