A rear-end motor vehicle accident in May 2000 in San Diego, California injured the thirty-two year-old plaintiff, Rhonda Gaye Young, then a Navy wife and former model. As a result of that accident, she suffered serious and continuing pain in her back and neck. A U.S. Naval Hospital found that plaintiff had a cervical strain and chest wall contusions. These injuries caused her persistent pain for which she took medications. In December 2000, the plaintiff, who by then was pregnant, told Dr. Bretz, her obstetrician, that her back pain had remained severe since May 2000 despite her use of pain relieving drugs. He referred her to a clinic specializing in pain management.
On February 20, 2001, nine months later, plaintiff experienced a second auto accident in Brisbane, Australia; it is the focus of the present proceedings against Kym Bayliss (defendant 1) and Suncorp Metway Insurance Ltd. (defendant 2). She was admitted to the emergency department of the Royal Brisbane Hospital (RBH) complaining of abdominal and back pain.
When Dr. Sellback examined the plaintiff in the RBH emergency department about three hours after the second accident, she complained of “mild to moderate tenderness in the cervical spine at C2‑3 but had a good painless range of movement”. The plaintiff did not complain of neck pain and the doctor’s examination revealed no neurological symptoms, and no head injury.
A week or so later when seen by Dr. Lindsay at the RBH pain clinic, the plaintiff gave an account of “constant and intense pain beginning May 27, 2000.” At that time, the plaintiff did not complain of any increase, or difference, in pain level caused by the Brisbane accident.
Dr. Day was the only orthopedic surgeon plaintiff called to testify at the trial; he had been her treating surgeon at the RBH’s spine clinic. On January 14, 2002, plaintiff wrote to Dr. Day. In pertinent part, her letter declared: “I am writing to you today in reference to the request for a disability certificate/statement, due to the injuries to my vertebrae bones of T-7 and 2 x T-8, sustained on the 27th May 2000, in San Diego, U.S.A. .... My life has been completely ripped apart because of this accident, that was the fault of an unin[s]ured motorist, and it is now nearly 2 years later and I have to live with pain, and adjust my life, and my future employment aspirations because of this, and I just need to clean up my past, debts and all ...”
On February 19, 2002, Dr. Day wrote to the plaintiff the following report: “Orthopaedic Evaluation: When first seen on 27.8.01, I noted severe right anterior chest pain, possibly from a right T-7 or a T-8 nerve root problem involving radicular pain in the segmental nerve root. Treatment. MRI scan of the thoracic spine was performed on 8.11.01 and failed to demonstrate any disc protrusion or nerve root compression in the thoracic spine. An endplate irregularity at T-8 was noted.”
Dr. Day later opined in his report dated May 7, 2004 that: “A radiological abnormality had been demonstrated in the body of T-8 following the motor vehicle accident in the United States on 27.5.2000. ... The abnormality demonstrated in the body of T-8 has been attributed to an incident which occurred prior to 20.2.2001. ... There is little doubt that a fracture of the 7th thoracic vertebra was sustained in the motor vehicle accident on 20.2.2001.” [¶ 35].
During the trial, Dr. Day was asked: “Q. Assuming very similar forces are applied to the spine, what apparently ‑ or appears to you to have happened in this second accident in relation to that previous fracture?‑ ‑ A. Oh, that’s a good question.” (Objection was then made and after legal argument, Dr. Day said): “A. It’s very difficult to compare what I see on a film in the Royal Brisbane with another radiologist’s report and I think the reason it’s a good question is that it’s really unanswerable.” [¶ 38].
On later cross-examination of Dr. Day by the defense, the following significant exchange took place: “Q. What I am getting at is this. In this case, it is certainly possible that the injuries that we can see at T‑8 and T‑7 may indeed all have been caused in the May 2000 accident? A. That is ‑ yeah, that’s a hypothesis that, it is impossible to say either way, isn’t it.?” [¶ 41] There was no redirect as to the meaning of this important concession by plaintiff’s lone orthopedic expert.
By orders made on June 3, 2005, plaintiff got a judgment against defendant #2 (the insurer) for $31,142.91, considerably less than the $493,622.43 sum sought for her during trial submissions. She duly noted an appeal. Her appeal claims that the trial judge, in essence, found that plaintiff had failed to prove that it was more likely than not that the Brisbane collision in February 2001 was the cause of any injury more than temporary soft tissue aggravation, and in assessing damages accordingly. The Queensland Court of Appeal dismisses.
“[E]ven granting the conclusion in [plaintiff’s] favour of a T‑7 fracture in February 2001 does not alter the position that the defendants did otherwise meet the plaintiff’s case as to damages, by demonstrating that from her own out-of-court descriptions, the consequences of the May 2000 event had continued in her life unabated before and after February 2001. Whether or not the T‑7 was fractured in the February 2001 accident, the conclusion was open that the consequences of the fracture of the T‑8 in May 2000 would have caused [plaintiff] the same degree of ongoing pain and disability she had suffered since 20 February 2001, had there been no collision on that date.” [¶ 24].
“Since Dr. Day resiled from his previous opinion by admitting there were two possible explanations for the condition of the plaintiff’s spine: one favourable to her case and the other not, and since his was the only expert evidence on the cause of the plaintiff’s back condition, it is not possible to be satisfied that it is more probable than not that the collision in February 2001 was the cause of more than a temporary soft‑tissue aggravation which was conceded by the defendants. That aggravation would have been acute for about four weeks and after that would have diminished until after another four weeks she would have been able to resume normal activity, according to ... evidence I accept.” [¶ 20].
“On the one hand, medical records plainly supported the conclusion that the T-7 injury was caused by the second accident. On the other hand, a medical specialist who had considered those records gave the opinion that it was impossible to say either way whether the injuries may have been all caused in the earlier accident. Dr. Day’s concession followed an earlier concession by him that it was very difficult to ‘understand exactly what may have been injured in the May 2000 accident as a consequence of the radiological reports’. He had accepted that the appellant was ‘significantly disabled’ as a result of the first accident at the time of the second and he had said that ‘it is often very difficult even for trained radiologists to get it [i.e., the precise level of a fracture or other injury] right.”
“In those circumstances, the existence of reports which supported a contrary conclusion may have permitted the primary judge to discount/reject Dr. Day’s concession or to regard it as not displacing the effect of other evidence, but he was not obliged to do so. He was entitled to accept the evidence of the only medical practitioner called to give evidence who had examined the appellant and considered the relevant medical reports.”[¶¶ 49-50].
“The evidence just discussed supports the primary judge’s finding that it is not possible to be satisfied that it is more probable than not that the collision in February 2001 was the cause of more than a temporary soft‑tissue aggravation. Even if it were to be accepted that the T-7 injury occurred in the second accident the evidence does not establish that it gave rise to more than temporary additional pain.” [¶ 61].
Citation: Young v. Bayliss, 2005 WL 3220367 (QCA; [2005] Q.C.A. 445.
About Jared Stolz, Esq.
Jared Stolz received his undergraduate education at Drew University in Madison, New Jersey and graduated with honors from Seton Hall University School of Law. Mr. Stolz has been the managing partner of Stolz & Associates since 2004, specializing in providing individual and customized attention to insurance carriers needs on substantial coverage disputes. Mr. Stolz has nearly two decades of experience in the insurance industry and strives to offer the clients a combination of tried and true legal analysis along with tactic, brought to it by today’s technology, with a focused eye on
expenses. Mr. Stolz has represented prominent clients in numerous noteworthy cases with published opinions and has published and given seminar on insurance law topics.
References
Bio on law firm website: http://www.stolzlaw.com/about-us/about-the-founder/
LinkedIn Profile: https://www.linkedin.com/in/jared-stolz-18088012
Blog: https://hype.news/jared-stolz-esq
Videos:
https://www.youtube.com/watch?v=HOF3bolshC8
https://www.youtube.com/channel/UC4JMr8Lydcx0FqRit17cBWg