By Louise Cantrill, Partner

The case of Dungan v Padash [2021] NSWCA 66 provides another reminder of the principles of causation, finding that the plaintiff was not entitled to damages for ongoing psychiatric injury where the underlying physical cause of the pain giving rise to the psychiatric injury which was related to the accident had resolved.

The respondent suffered lower back injury from a motor vehicle accident in November 2016, being an aggravation of an underlying degenerative condition. Liability was admitted.

The respondent developed a psychiatric injury, being an adjustment disorder, secondary to the pain associated with the injury. The primary judge found that the underlying physical injury caused by the accident had resolved by November 2017. Nevertheless, due to the ongoing psychiatric injury, the primary judge awarded damages for future pain and disability including loss of earnings, medical expenses and domestic assistance.

The appellant appealed the award for damages post November 2017 on the basis that:

1. The psychiatric injury was secondary to pain;
2. The underlying physical injury caused by the accident had resolved; and therefore
3. the accident could no longer be the cause for the pain causing the ongoing psychiatric injury.

The respondent cross appealed, alleging the appellant had not discharged his evidentiary burden of how and when the accident ceased to be the cause of the symptoms, particularly given the injury was an aggravation of a previous condition.

The New South Wales Court of Appeal agreed with the appellant. The respondent’s ongoing psychological symptoms could not be attributable to the accident in the circumstances.

Further , in dismissing the respondent’s cross appeal, the Court found that the Appellant had discharged its evidentiary onus, finding the appellant’s evidence was “sufficiently precise and definite to displace the inference that the disabling pain suffered by the respondent was caused by the accident.” [32]

The case can be found here.