A common question in personal injuries matters is what impact,
if any, a pre-existing condition suffered by a plaintiff will have
on a plaintiff's damages claim. The NSW Court of Appeal
recently considered whether an appellant's pre-existing
neurological degeneration had subsumed the injuries sustained by
him as a result of a motor vehicle accident, and thereby limited
his entitlement to damages for economic loss.
The appellant was involved in a motor vehicle accident on 28
August 2000. Following the incident, imaging revealed spinal cord
compression and myelomalacia (a pathological softening of the
spinal cord). The appellant had suffered neck pain since 1997, and
had had surgery in 1998 to treat degenerative disc disease. Despite
this surgery, the appellant's degenerative disease was
symptomatic up until the time of the motor vehicle accident.
There was a divergence in medical opinion as to whether the
myelomalacia found after the motor vehicle accident was
attributable to the underlying degenerative disease or the motor
vehicle accident. The trial judge held that by 25 November 2008,
the appellant's pre-existing condition had deteriorated to the
point that it had overwhelmed the consequences of the motor vehicle
accident. The trial judge highlighted the fact that the appellant
had decided to not proceed with surgery to treat his condition,
despite the opinion of numerous medical specialists.
The focus of the Court of Appeal was the question of whether
there was a causal relationship between the accident and the
appellant's ongoing neurological symptoms. In particular, the
court considered the hypothetical situation of the likelihood of
the injuries occurring in the absence of the accident in accordance
with the principles espoused in Malec v JC Hutton Pty Ltd 
HCA 20. The court therefore looked at the matter in terms of
possibility and probability, as opposed to strictly the balance of
After a detailed discussion of the medical evidence, the Court
of Appeal unanimously found that the trial judge erred by
concluding that the consequences of the accident had been subsumed
by the pre-existing condition. In the leading judgment, Justice
Sackville considered that on the balance of probabilities the
accident had caused stress to the appellant's spinal cord,
which materially contributed to the appellant's spinal cord
compression. Justice Sackville opined that the trial judge had not
found that the appellant's unwillingness to undertake surgery
had broken the chain of causation. However, he noted that in the
event that she had, this finding was open to challenge given
medical opinion that the surgery was not guaranteed to be
successful and the significant risks of the procedure.
Justice Sackville accepted that in the absence of the accident,
the pre-existing condition could possibly have led to the appellant
being totally incapacitated from work in the future, however there
was considerable uncertainty in determining the rate of
deterioration. Accordingly, the traditional 15% reduction for the
vicissitudes of life was increased to 40%.
This decision provides insight as to how a court will approach
pre-existing injuries in terms of causation. While the specific
impact of the accident on the appellant's health could not be
precisely determined in light of the pre-existing injury, given
that some impact on the appellant's condition was observed, the
Court took a favourable stance in almost providing the appellant
with the benefit of the doubt.
The Court's decision to increase the typical discounting for
the vicissitudes of life represented a reasonable attempt to
consider what likely long term impact the pre-existing would have
had, but for the motor vehicle accident.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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