Barnes v The State of New South Wales

[2017] NSWCA 254

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Barnes v The State of New South Wales [2017] NSWCA 254
Hearing dates:	25 September 2017
Decision date:	13 October 2017
Before:	Macfarlan JA at [1]; White JA at [2]; Sackville AJA at [3]
Decision:	1.    Appeal dismissed. 2.    The appellant pay the respondent’s costs of the appeal.
Catchwords:	WORKERS COMPENSATION – worker injured in motor vehicle accident – workers compensation insurer seeks indemnity from person responsible for the motor vehicle accident – primary Judge finds that the injured worker’s injuries were caused by the motor vehicle accident – whether primary Judge gave adequate reasons – whether finding in any event should be upheld.
Legislation Cited:	Crown Proceedings Act 1988 (NSW) Evidence Act 1995 (NSW), s 60(1), (2) Workers Compensation Act 1987 (NSW), s 151Z
Cases Cited:	Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Cupac v Cannone [2015] NSWCA 114 Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 Mason v Demasi [2009] NSWCA 227 Shellharbour City Council v Rigby [2006] NSWCA 308; (2006) 150 LGERA 11 State of New South Wales v Barnes (District Court (NSW), 15 December 2016, unrep) Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402
Category:	Principal judgment
Parties:	Nicole Barnes (Appellant) The State of New South Wales (Respondent)
Representation:	Counsel: Mr J Turnbull SC / Ms J Warren (Appellant) Mr J Catsanos (Respondent)   Solicitors: Moray & Agnew (Appellant) Thompson Eslick Solicitors (Respondent)
File Number(s):	2017/9822
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 15 December 2016 Before: Curtis DCJ File Number(s): 2014/362902

HEADNOTE

[This headnote is not to be read as part of the judgment]

A woman was injured in a motor vehicle accident on 21 February 2003, when a car driven by the appellant ran into the back of the car in which the woman was a back seat passenger. The accident occurred while the woman was travelling to Liverpool Hospital, where she was employed by South West Sydney Local Health District (SW Health District). As a consequence, SW Health District became liable to make payments pursuant to the Workers Compensation Act 1987 (NSW).

On 10 December 2014, the respondent commenced proceedings seeking contribution from the appellant in respect of SW Health Services’ liability to make workers compensation payments. The appellant admitted responsibility for the car accident but disputed that the accident had caused the woman’s injuries.

The primary Judge entered judgment for the State, finding that the woman suffered injury to her neck and shoulder as a result of the car accident. His Honour limited recovery to worker’s compensation payments made during the six-year period preceding the institution of proceedings.

The issue on appeal was whether the primary Judge failed to provide adequate reasons for his decision, or alternatively failed to have regard to evidence suggesting that the woman’s injuries were due to a pre-existing degenerative condition or work-related injuries.

Held, Sackville AJA (Macfarlan and White JJA agreeing):

(1) The primary Judge’s reasons do not expressly consider the appellant’s argument (that the contemporaneous documents were inconsistent with the respondent’s case on causation), or refer to the evidence on which the appellant relied. Accordingly, the fact finding process miscarried: [26]-[27].

The parties expressed a preference for this Court to resolve the proceedings on the basis of evidence before the primary Judge, accepting his findings as to the honesty of the lay witnesses, rather than remitting the matter for a new trial.

Held, Sackville AJA (Macfarlan and White JJA agreeing), dismissing the appeal:

(1) The evidence as a whole justifies a finding on the balance of probabilities that the woman reported to her supervisor that she was experiencing shoulder pain within a week of the motor accident: [48].

(2) When findings as to when the woman first complained of shoulder and neck pain are taken into account, the preponderance of medical evidence favours the view that her shoulder and neck injuries were sustained in the motor vehicle accident: [62].

Judgment

1. MACFARLAN JA: I agree with Sackville AJA.

2. WHITE JA: I also agree with Sackville AJA.

3. SACKVILLE AJA: This appeal arises out of a motor vehicle accident which occurred on 21 February 2003, over fourteen years ago. Ms Bullivant was injured when a car in which she was a back seat passenger ran into the back of a stationary vehicle at traffic lights. The car was being driven by the appellant.

4. At the time of the accident Ms Bullivant was employed by the South West Sydney Local Health District (SW Health District) as a booking clerk in the Department of Nuclear Medicine at Liverpool Hospital. The accident occurred while Ms Bullivant and the appellant, a work colleague of Ms Bullivant, were driving to Liverpool Hospital. As a consequence of the injuries sustained by the appellant, her employer, SW Health District, became liable to make payments to her pursuant to the Workers Compensation Act 1987 (NSW) (WC Act).

5. By a statement of claim filed on 10 December 2014, the respondent (State) brought proceedings against the appellant seeking an indemnity pursuant to s 151Z of the WC Act in respect of compensation payments made to, for or on behalf of Ms Bullivant. The State brought the proceedings under the Crown Proceedings Act 1988 (NSW) on behalf of SW Health District as a body representing the Crown in right of New South Wales. No clear explanation has been provided as to why the State did not institute proceedings earlier.

6. The appellant admitted that she breached the duty of care she owed to Ms Bullivant, but defended the State’s claim on two grounds. First, the appellant denied that Ms Bullivant had suffered injury, loss or damage as a result of the motor vehicle accident. Secondly, the appellant pleaded that, in any event, any workers compensation payments made on or before 10 December 2008 (six years before the State instituted proceedings) were “statute barred from recovery”.

7. The primary Judge (Curtis DCJ) found that Ms Bullivant injured her neck and shoulder in the motor vehicle accident. His Honour also found that although Ms Bullivant suffered a fall in April 2008, the fall was not the reason that she underwent surgery in 2010. [1]

   1. State of New South Wales v Barnes (District Court (NSW) 15 December 2016, unrep) (Primary Judgment) at [11].

8. The primary Judge noted that s 151Z of the WC Act limits the amount an employer may recover from a third person liable to pay damages in respect of an injury to a worker to the amount of those damages. Accordingly, it was necessary for his Honour to assess the damages to which Ms Bullivant would have been entitled if she herself had sued the appellant. His Honour assessed the maximum damages to which Ms Bullivant would have been entitled at $620,731. [2]

   2.    Primary Judgment at [26]-[27].

9. The primary Judge upheld the appellant’s submission that the State was limited to recovery of worker’s compensation payments made during the six year period preceding the institution of proceedings. These payments amounted to $149,147.08. His Honour therefore entered judgment for the State in the sum of $200,861.87, comprising:

• recovery of past workers compensation payments pursuant to s 151Z(1)(d) of the WC Act in the sum of $149,147.08; and

• agreed pre-judgment interest of $51,714.79.

10. The appellant challenges the primary Judge’s finding that Ms Bullivant injured her left shoulder and neck in the 2003 motor vehicle accident. The appellant complains that the primary Judge failed to give adequate reasons for the finding that the motor vehicle accident caused Ms Bullivant’s injuries. The appellant also submits that the primary Judge failed to have regard to evidence suggesting that Ms Bullivant’s injuries were due to a pre-existing degenerative condition or to other work-related injuries.

11. The notice of appeal includes a ground challenging the primary Judge’s notional assessment of damages but that ground was abandoned.

12. The respondent filed a notice of contention seeking to uphold the primary Judge’s finding on causation even if this Court accepts that his Honour erred in law by failing to give adequate reasons for the finding. The respondent contends that the primary Judge’s finding on causation accords with the evidence and should be upheld by this Court.

Primary Judgment

13. The primary Judge’s reasoning on causation was brief: [3]

    3.    Primary Judgment at [5]-[11].

“Did the worker injure her neck and shoulder?

[5]   Mrs Bullivant says that her health was fine before the accident. She says that the driver of the car in which she was a passenger was driving very fast before running into the back of another car. She braced herself with her arms against the seat in front before the collision. It was a significant collision and Mrs Bullivant says that the front of the car in which she was travelling was ‘destroyed’. She also says that she was stiff and sore after the accident and within a week her neck and left arm became quite painful.

[6]   Although she had consulted her general practitioner for severe pain in her neck in 1999, the notes of the general practitioner record no further complaints of neck pain before the accident.

[7]   Mrs Bullivant’s account is corroborated by her work supervisor Ms Catherine Parsons. Ms Parsons says that she observed no restrictions in the way in which Mrs Bullivant went about her work before the accident. She also says that: ‘It was probably one or two days later she was complaining that she was a bit stiff and sore in her neck and shoulder area.’

[8]   Ms Parsons was sufficiently concerned to undertake a risk assessment of Mrs Bullivant’s duties. Consultants were retained to assess and modify her work station.

[9]   The workers compensation claim form completed on 21 October 2003 contains an entirely consistent history.

[10]   Ms Parsons described Mrs Bullivant as stoic and this may account for the lack of contemporaneous complaint.

[11]   I accept Mrs Bullivant and Ms Parsons as reliable and truthful witnesses. I find that Mrs Bullivant injured her neck and left shoulder in the accident. I also find a fall suffered by her on 18 April 2008 was not the cause of surgery in 2010. An MRI of her cervical spine taken on 7 March 2008, six weeks before the fall, revealed the pathology the subject of the operation.” (Emphasis in original.)

Submissions

Appellant’s submissions

14. The appellant did not submit that Ms Bullivant fabricated her evidence. However, Mr Turnbull SC, who appeared for the appellant, submitted that Ms Bullivant’s recollection of events that occurred many years previously was understandably poor. Thus, the contemporaneous documentary evidence and the medical notes and reports were of particular significance on the issue of causation. Mr Turnbull submitted that the primary Judge did no more than find that Ms Bullivant and Ms Parsons were truthful and reliable witnesses. In taking this approach, his Honour failed to grapple with the contemporaneous documentation casting doubt on their recollection of events thirteen years earlier. Mr Turnbull also submitted that his Honour overlooked clinical notes and medical opinions suggesting that there was no causal relationship between the motor vehicle accident and Ms Bullivant’s injuries.

15. Mr Turnbull submitted that the primary Judge’s reasons were inadequate as his Honour failed to explain why he made the finding of causation in the face of a body of documentary and medical evidence inconsistent with the State’s case. The absence of proper reasons constituted an error of law vitiating the primary Judge’s decision.

16. Mr Turnbull accepted that if this Court concludes that the primary Judge did not give adequate reasons, the result is not necessarily that the appeal must be allowed and the proceedings dismissed. He expressed a preference that since there was no issue as to the honesty of the principal witnesses (although there was an issue to the reliability of their recollections), the Court should make its own assessment of the evidence. On this basis, Mr Turnbull submitted that the evidence did not support the primary Judge’s finding on causation. Accordingly, he invited the Court to set aside the orders made by the primary Judge and enter judgment for the appellant.

17. I refer later to the evidence identified by Mr Turnbull said to support the appellant’s case. [4]

    4. See at [20] below.

State’s submissions

18. Mr Catsanos, who appeared for the State, submitted that the medical evidence left no doubt that Ms Bullivant suffered severe and disabling neck and left shoulder pain. The only issue was causation and the resolution of that issue in substance depended on whether the primary Judge accepted Ms Bullivant’s account as to when she experienced the onset of symptoms. Since Ms Bullivant gave unequivocal evidence that she experienced symptoms within a few days of the motor vehicle accident and her account was corroborated by Ms Parsons, it was sufficient for the primary Judge to state that he accepted their evidence as truthful and accurate. It was not necessary for his Honour to refer to the medical evidence in any detail since it was consistent with the account given by Ms Bullivant.

19. In the alternative, Mr Catsanos relied on the respondent’s notice of contention. He submitted that the key finding by the primary Judge, based on his Honour’s assessment of the evidence of Ms Bullivant and Ms Parsons, was that Ms Bullivant complained of pain in her shoulder and neck within one or two days of the motor vehicle accident. The medical evidence referred to by the appellant was either equivocal on the issue of causation or included opinions based on an incorrect assumption that Ms Bullivant had made no complaint about pain in her shoulder and neck until some time after the accident. Mr Catsanos contended that the weight of medical evidence, including reports from Ms Bullivant’s treating doctors, supported the primary Judge’s finding.

Evidence relied on by the appellant

20. Mr Turnbull identified nine pieces of evidence that he contended had been overlooked by the primary Judge. [5] The following summarises the evidence relied on by Mr Turnbull and the significance he attributed to each item.

    5.    Mr Turnbull actually referred to ten items of evidence. However, one item, a report by Dr Prior, a consultant psychiatrist, is of little significance for present purposes.

(1)   The notes of the general practitioners consulted by Ms Bullivant regularly between April 1999 and August 2007, principally recorded by Dr Victorino, demonstrate that Ms Bullivant complained of pain in her left shoulder blade as early as 3 May 1999 and complained of neck pain on 27 June 1999. These complaints predated the motor vehicle accident by well over three years and suggest that Ms Bullivant had pre-existing conditions that explained the onset of her symptoms after the motor vehicle accident.

The clinical notes also indicate that although Ms Bullivant attended the general practice three times in March 2003 and once in early April 2003, she did not complain during those consultations about shoulder or neck pain. It was not until 31 May 2003, about three months after the motor vehicle accident, that the notes record Ms Bullivant complaining to a general practitioner about pain in her left shoulder. The notes do not record any specific complaint about neck pain.

(2)   Ms Bullivant completed an Incident Report for her employer on 21 February 2003, the date of the motor vehicle accident. In answer to a question as to the injuries she received in the accident, Ms Bullivant responded:

“NONE ONLY STRAIN ON ELBOWS FROM BRACING ELBOWS”.

The Incident Report militates against a finding that Ms Bullivant suffered neck and shoulder injuries in the motor vehicle accident.

(3)   On or about 4 July 2003, Ms Bullivant and Ms Parsons completed a “Notification of Injury” form for the purposes of Ms Bullivant’s workers compensation claim. Ms Bullivant described her injury as “MULTIPLE ROTATOR CUFF TEARS [LEFT] SHOULDER”. Her description of how the accident happened was “REPETATIVE [sic] WORK DUTIES”. This is further evidence that the neck and shoulder injuries were unrelated to the motor vehicle accident.

(4)   On 4 July 2003, Ms Bullivant also completed a “WorkCover NSW Medical Certificate”. She identified the injury sustained on 21 February 2003 as “ROTATOR CUFF TENDINOSIS” caused by “REPETATIVE [sic] STRAIN”. This document is to the same effect as the Notification of Injury form and reinforces the appellant’s case.

(5)   Dr Ireland, an orthopaedic surgeon, saw Ms Bullivant on 3 July 2003. He reported as follows:

“[Ms Bullivant] has noticed increasing pain in her left shoulder over the last 10 weeks. The pain has been sufficient to keep her awake at night and she gives a history of fairly typical impingement symptoms, with pain in an extended above shoulder position and difficulty in stretching behind herself.

…

The only other injury that she has sustained in the last few years has been a motor vehicle accident, but she cannot recall any significant pain in the shoulder associated with that.

On examination today, she has got some deep tenderness around the anterior aspect of the shoulder. Glenohumeral movements are approximately two thirds of normal and she has a typical impingement sign.

An ultrasound of her left shoulder shows a partial thickness tear of subscapularis, supraspinatus and infraspinatus tendons, with evidence of impingement.”

The reference in this report to the motor vehicle accident being the cause of the “only other injury” sustained by Ms Bullivant indicates that her left shoulder pain cannot be attributed to the accident. The report also suggests that the “increasing pain” experienced by Ms Bullivant lasted only for the ten weeks prior to the consultation – that is, a period commencing in about mid-April 2003.

(6)   Dr Machart, also an orthopaedic surgeon, prepared a report dated 29 February 2008 in connection with Ms Bullivant’s workers compensation claim. Dr Machart’s report includes the following observations:

“Provide your specific comments on whether the worker’s condition of the shoulder is consistent with the injury she described as occurring on 03/07/2003.

The date of injury given by the claimant was different, 21/02/2003.

I doubt that she suffered a severe structural injury in the form of a rotator cuff rupture. She admitted to having no pain at the time of the injury and that symptoms developed two weeks later.

Even in the presence of a partial tear of the rotator cuff, the subsequent clinical progress, and the current condition, are not consistent with the history of injury. Please note that at the time of the injury she had no pain and yet now she appears to be debilitated by a painful condition which does not have objective or structural basis.

…

She was treated for a rotator cuff disruption. It is reasonable to assume that she may be suffering from impingement although this is difficult to confirm in the presence of non-physical features or psychological overlay in her presentation. It could be considered that there is 2% WPI as a result of impingement.

It is debatable as to whether this impingement was caused by the injury given the gap between the injury and the development of symptoms.”

In a subsequent report dated 28 October 2009, Dr Machart stated as follows:

“My assessment [at previous consultations with Ms Bullivant] was that having suffered no pain at the time of the injury, she developed pain in the left shoulder several weeks later. I doubted that there was a significant structural impact from the motor vehicle accident that could have been responsible for the pathology, a tear of the rotator cuff, without immediate symptoms. I thought this was a pre-existing condition and that symptoms developed spontaneously subsequently, perhaps aggravated by her work, reaching forward and upwards into cupboards and lifting files. I could not reconcile how the apparently debilitating condition at the time of my presentation could have been related to the motor vehicle accident, when there were no significant symptoms immediately after the accident.”

Dr Machart’s opinion is inconsistent with the State’s case that Ms Bullivant’s shoulder and neck injuries were caused by the motor vehicle accident. It suggests that the primary Judge should not have found that that causation was established.

(7)   Ms Bullivant said in evidence that she did not recall any problems with her shoulder and neck prior to the motor vehicle accident in February 2003. Dr Victorino’s clinical notes demonstrate that, although Ms Bullivant could not recall the problems, she had in fact experienced pain in her shoulder and neck well before the motor vehicle accident.

(8)   Dr Harvey, an orthopaedic surgeon, prepared a report dated 6 September 2016 based on Ms Bullivant’s medical file. Dr Harvey expressed the following opinions:

“CAUSATION

All the pathology that has been demonstrated is degenerative in nature and all the radiological changes would be a common finding in a person of this age. None of the radiological findings would provide any evidence of trauma. It is noted from the contemporaneous medical records, that she was not complaining of either neck or shoulder pain at the time of the traffic accident.

The first mention of shoulder pain in the medical record was on 31/05/03 and [it] was only much later that the focus of attention turned to her cervical spine.

I see no reason to relate either her shoulder complaint or her neck complaint to the traffic accident as described on 21/02/03. I note that it was claimed that the pain in the left shoulder could be related to the nature of her work because she had to get files from overhead and use a computer. Again, while I would not believe that such work would cause any rotator cuff tear or any derangement of the acromioclavicular joint, it could have been an aggravating factor.

FURTHER COMMENT

In your referring letter you have raised a number of issues:

1.   It appears that Mrs Bullivant in her statement made on 21/02/03 said that she suffered no injuries apart from a strain on the elbows from bracing.

2.   I do not consider that the minor tears found in the rotator cuff are related to trauma. Such changes would be a frequent finding in an asymptomatic shoulder. Certainly there would have been no reason to see how she could have suffered any shoulder injury in the accident and not have any symptoms until 31/05/03.”

Dr Harvey’s opinion supports the appellant’s case.

(9)   Dr Casikar, a neurosurgeon, prepared a report for the appellant’s solicitors on 24 August 2016 based on a file review. His report includes the following:

“The surgery Ms Bullivant had for her left shoulder in July 2003, in my opinion, was unrelated to the motor vehicle accident. She did not have any problems in the shoulder, (as noted by your documents) until a few months later.”

Dr Casikar’s opinion, like that of Dr Harvey and Dr Machart, supports the appellant’s case.

Reasoning

Adequacy of reasons

21. It was common ground between the parties that the primary Judge was obliged to give adequate reasons for his decision. The three fundamental elements of a statement of reasons are that the judge should refer to relevant evidence, although not necessarily in detail; set out material findings of fact and any conclusions or ultimate findings; and provide reasons for making the findings of fact and conclusions, including the relevant legal principles. [6]

    6. Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Shellharbour City Council v Rigby [2006] NSWCA 308; 150 LGERA 11 at [232]-[233] (Beazley JA, Ipp JA agreeing).

22. As Hayne J remarked in Waterways Authority v Fitzgibbon,[7] when a trial judge is said to have failed to give adequate reasons, there may be doubt as to what principles are engaged. The same point was made by Basten JA in Container Terminals Australia Ltd v Huseyin,[8] where his Honour observed that:

“A challenge based on lack of reasons will often be imprecise in the sense that it does not identify the real nature of the complaint, which may involve one of the following:

(a)   failure to consider a material issue raised by the parties;

(b)   addressing an issue without considering all the relevant evidence;

(c)   disposing of an issue by taking into account some irrelevant material;

(d)   misapplying the law, or

(e)   committing some other unidentifiable error in the fact-finding process.”

7. [2005] HCA 57; 221 ALR 402 at [129]-[130] (McHugh and Gummow JJ agreeing).

8. [2008] NSWCA 320 at [3].

23. In the present case, the primary Judge made findings as to the credit of the lay witnesses, Ms Bullivant and Ms Parsons. On the basis of these findings his Honour accepted their evidence as to when Ms Bullivant first complained of symptoms following the motor vehicle accident. The timing of the complaints was a disputed factual issue at the trial and it was clearly important. But it was not the only issue and did not, of itself, necessarily resolve the question of causation.

24. The State claimed contribution from the appellant in respect of NW Health Services’ liability to make workers compensation payments to Ms Bullivant for work-related injuries sustained by her. To make out its claim for contribution the State had to establish that Ms Bullivant’s injuries were caused by the motor vehicle accident for which the appellant admitted responsibility.

25. The appellant resisted the claim on the ground that Ms Bullivant’s injuries were not the result of the accident. It submitted to the primary Judge that contemporaneous documentation, such as the clinical notes and the Incident Report, were inconsistent with the State’s case on causation. The appellant also submitted that the medical evidence did not support a finding that the injuries to the appellant’s shoulder and neck were a consequence of the motor vehicle accident, but rather suggested that the source of those injuries lay elsewhere.

26. The primary Judge was obliged to consider the issue raised by the appellant and the evidence on which the appellant relied. This does not mean that the primary Judge was required to analyse the evidence in detail or consider the significance of each of the matters identified by the appellant. But his Honour was obliged to explain why he rejected the key arguments advanced by the appellant on the issue of causation.

27. The primary Judge’s reasons do not expressly consider the appellant’s arguments based on the contemporaneous documentation and the medical reports. Nor do the reasons refer, except in two minor respects,[9] to the evidence on which the appellant relied. The failure to address those matters indicates that his Honour did not give proper consideration to significant issues raised by the appellant and also did not have regard to relevant evidence bearing on those issues. It follows that the fact finding process miscarried.

    9. See Primary Judgment at [6], [11], reproduced at [13] above.

Reassessing the evidence

28. In some cases where a trial judge fails to address issues presented for determination or overlooks material evidence there may be no alternative but to remit the matter for a new trial. This may be the situation, for example, if the trial judge has failed to make findings on credit that are crucial to resolving contested factual questions.

29. In the present case, the primary Judge found that Ms Bullivant and Ms Parsons gave their evidence honestly. I did not understand Mr Turnbull to contend that it was not open to his Honour to make this finding. Nor did either party submit that the proceedings should be remitted to the District Court to enable further factual findings to be made. Both parties sensibly expressed a preference for this Court to resolve the proceedings on the basis of the evidence before the primary Judge, accepting his findings as to the honesty of the lay witnesses.

Timing of complaints

The primary Judge’s finding

30. The parties disagreed as to whether the primary Judge made a finding as to when Ms Bullivant first complained about pain in her shoulder and neck following the accident. Mr Turnbull submitted that his Honour merely recorded the evidence given by Ms Bullivant and Ms Parsons on this issue and did not necessarily accept it. It is, however, clear that his Honour accepted their evidence on this point.

31. The primary Judge expressly referred to Ms Bullivant’s evidence that she was stiff and sore after the accident and that within a week her neck and left arm became quite painful. [10] His Honour also expressly referred to Ms Parsons’ evidence that Ms Bullivant complained about pain in her shoulder and neck within a day or two of the accident. [11] Given that the primary Judge accepted that both Ms Bullivant and Ms Parsons were honest and reliable witnesses,[12] the only fair reading of the judgment is that he accepted their evidence as to the timing of complaints. Since the appellant challenged that finding it is necessary to reconsider the evidence bearing on the question.

What finding should be made?

10. Primary Judgment at [5].

11. Primary Judgment at [7].

12. Primary Judgment at [11].

32. In assessing the evidence afresh four points should be borne in mind. First, neither Ms Bullivant nor Ms Parsons has any personal or financial interest in the State’s claim for contribution against the appellant. The proceedings involve a contest between insurers.

33. Secondly, the Incident Report, which was prepared on the day of the accident, indicates that Ms Bullivant sustained some physical effects as a result of the accident. Despite the word “NONE” appearing on the document, Ms Bullivant stated that she experienced what she described as strain on her elbows.

34. Thirdly, Dr Ireland’s report of 3 July 2003 [13] records that Ms Bullivant gave a history of increasing levels of pain in the shoulder over the previous ten weeks (that is, from mid-April 2003). Dr Ireland detected deep tenderness around the anterior aspect of the shoulder. An ultrasound of the left shoulder revealed a partial thickness tear of the subscapularis, supraspinatus and infraspinatus tears, with evidence of impingement.

    13.    See at [20(5)] above.

35. Fourthly, Ms Bullivant maintained over a period of about five years prior to giving evidence that she experienced pain in her shoulder and neck within a short time after the motor vehicle accident. The history she gave to doctors over this period, as recorded in their reports, is consistent with the evidence she gave at the trial. Care must be taken in reading too much into patient histories recorded by doctors,[14] but the medical reports can be used to prove the truth of the history they record. [15]

    14. Mason v Demasi [2009] NSWCA 227 at [2] (Basten JA).

    15. See Evidence Act 1995 (NSW), s 60(1), (2) (creating an exception to the hearsay rule); Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 at [39] per curiam; Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [75] (Campbell JA, Basten JA and Handley AJA agreeing); Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 at [142]-[143] (Bergin CJ in Eq, McColl JA and Blanch J agreeing).

36. Dr Machart’s report of February 2008 recorded that Ms Bullivant experienced no discomfort at the time of injury, but that she developed pain in her left shoulder about two weeks later. Dr Van Gelder, a neurosurgeon who treated Ms Bullivant at Dr Victorino’s request in 2010, recorded that Ms Bullivant had been injured in a motor vehicle accident in 2003 and had developed “increasing left shoulder pain soon after”. Ms Bullivant also recounted her history to Dr Pillemer, an orthopaedic surgeon who saw her in September 2012 at the request of the workers compensation insurer. Dr Pillemer’s report indicates that Ms Bullivant experienced no particular discomfort at the time of the accident but that within a week or so she noticed discomfort in her left shoulder and on the left side of her neck.

37. Ms Bullivant made a statutory declaration on 3 September 2013, apparently because at that stage she was contemplating instituting common law proceedings against the appellant. (In the event no such proceedings were commenced.) In the statutory declaration, Ms Bullivant said that on the day of the accident she attended her general practitioner who checked her over. She said that after the accident she was a bit stiff and sore and that a week later she had difficulty raising her arm above shoulder height. Ms Bullivant further said that she tried to push through the pain and kept working but after a few weeks the pain became unbearable. As a result, a few months after the accident, she again attended her general practitioner at which point she was referred to Dr Ireland who saw her on 3 July 2003. She subsequently had surgery on her shoulder.

38. In her evidence-in-chief, Ms Bullivant repeated in substance the account given in her statutory declaration. She said that she referred in the Incident Report to the strain on her elbows because that is where she initially felt stiff and sore. Over the next week she felt pain in her left shoulder and experienced difficulty sleeping on her left side because of acute pain. Ms Bullivant said that as a result of reporting her difficulties to Ms Parsons (who had responsibility for health and safety issues at the workplace), a workstation assessment was arranged and changes were made to accommodate her physical limitations.

39. Ms Bullivant was challenged on some aspects of her evidence in cross-examination. She did not resile from her account although she acknowledged that it was “possible” that she had not complained about neck and shoulder pain when she consulted Dr Victorino shortly after the accident. It also appears that she may have been mistaken about the date of her first attendance at the general practice after the accident. However, Ms Bullivant was not directly challenged on her evidence that soon after the accident she informed Ms Parsons of the pain she was experiencing in her shoulder and neck.

40. Ms Parsons’ evidence was consistent with that of Ms Bullivant. Ms Parsons gave this evidence in chief:

“Q.   Can you remember at that stage [immediately after the accident] - did she say anything about how she was feeling?

A.   Basically when she first arrived at work it was more of - she was a bit in shock and a bit shaky from it. She sat down, had a glass of water. I told her to relax. Settle herself in and, you know, don't - don't rush to get everything done. It’s okay. We've got it under control. She didn't really complain of anything in that initial day. It was probably one or two days later she was complaining that she was a bit stiff and a bit sore in her neck and shoulder area, so I told her that, you know, you should really get it checked out if it's getting too much for you because you just don't know what could be underlying there. I'm not sure if—

Q.   When she told you that, did you make any observation of her?

A.    I just noticed that she was a little bit - you know, stiff like after a car accident. That you kind of - you know, kind of protect yourself a little bit, but she was still getting on with her work, so I wasn't too concern[ed] at that earlier stage. It was probably a couple of weeks down the track I noticed that she was getting a little bit slower and the a little bit stoic in her movements and I said, ‘You know, you really should go and get it looked at. You know, you might have hurt yourself and you don't know it.’

Q.   Did she say, or did you ask her where she was experiencing pain?

A.    I didn't specifically say where is the pain located. I just said, ‘How are you feeling?’ You know, ‘You look a bit stiff.’ And she did say that, you know, just up in the neck, shoulder kind of area here, she was a little bit stiff, and I said, ‘You know, that could have happened because of the way you put your hand out to kind of protect yourself in the accident.’ And then, again, stressed the point that you really should go and get it seen to.”

41. Ms Parsons adhered to this evidence in cross-examination:

“Q.   And it's possible, is it not, that in fact the first time she's made complaints about being - about problems in the [neck] and shoulder was a couple of weeks after the accident. Is that possible.

A.   The first time was a few days later, and then it just progressively over the next few weeks--

Q.   When you say, ‘a few days’, you can't be sure precisely when it was that took--

A.   I couldn't say if it was 48, 72 hours. It was within the - that first week of the accident.

Q.   So it could have been a week after the accident that she first made those complaints to you?

A.   Two or three days, yeah. Easily within the week.

Q.   It could have been two- or three days? It could have been a week? Do you agree with that?

A.   It would be less than a week, yeah.

Q.   It could have been two- or three weeks, couldn't it?

A.   It wouldn't have been two- to three weeks because--

Q.   Why do you say that?

A.   Well, we noticed that after the accident she came in and she was shaken up. And then over - progressively the next few days, just from my recollection, we'd notice that, you know, she was getting a bit - you know - and then we would ask her and prompt her--

Q.   When you say - sorry.

A.   I mean, as a manager, you're constantly asking the question, ‘Are you okay? Is everything all right?’ And then Louise would say, ‘No. I'm a bit sore in my area here.’ So then we start to look at, you know--

Q.   Doing other things

A.   Yeah.”

42. Ms Parsons later agreed with the cross-examiner that her memory of when Ms Bullivant first made the complaints was “not perfect”. She also agreed that it “could be possible” that the first complaints were made some weeks after the accident, but that was as far as her concession went.

43. There was no evidence directly contradicting the accounts given by Ms Bullivant and Ms Parsons, except for Ms Bullivant’s recollection that she saw a doctor on the day of the accident. The principal argument mounted by the appellant against the primary Judge’s finding was the apparent absence of any complaint to a treating doctor until 31 May 2003. According to the clinical notes of the general practice, Ms Bullivant’s first consultation after the motor vehicle accident was about three weeks later, on 12 March 2003. The notes for that consultation are brief and uninformative. The second and third consultations were on 25 and 26 March 2003. The notes for both consultations record that Ms Bullivant had experienced pain in the lower lumbar spine. The notes for a fourth consultation on 3 April 2003 are brief and also uninformative. The fifth consultation was with Dr Ramanathan (Dr Victorino’s colleague) on 31 May 2003.

44. Dr Victorino provided a report dated 21 July 2016 in which she confirmed that Ms Bullivant consulted Dr Ramanathan on 31 May 2003 complaining of left shoulder pain. At that consultation she was found to have left arm weakness and was diagnosed with a left rotator cuff injury. As Dr Ireland reported, an ultrasound performed in mid-June 2003 revealed a “partial thickness tear of the supraspinatus and infraspinatus tendons”.

45. Dr Victorino also confirmed that the notes for 31 May 2003 were the first entries relating to the left shoulder after the motor vehicle accident. However she observed that:

“it’s possible that Mrs Bullivant made earlier complaints of her left shoulder problems that are not recorded. This may be because she just complained in passing, or was [sic] not the main complaint during the consultation”.

46. In my view, the absence of any reference in the clinical notes before 31 May 2003 to shoulder pain does not provide a sound basis for rejecting the evidence given by Ms Bullivant and Ms Parsons, witnesses whose honesty is not in doubt. Ms Parsons gave an explanation for Ms Bullivant’s delay in seeking medical advice, namely that she had stoically put up with pain and had to be urged to consult her general practitioner. The notes of the consultation of 12 March 2003 are extremely brief and Dr Victorino’s report provides a plausible explanation for the absence of a specific reference to shoulder or neck pain.

46. Ms Parsons’ evidence relating to the occupational health and safety of Ms Bullivant’s workstation indicated that the process commenced within a week or so of the accident. Ms Parsons adhered to that evidence and there is no basis for rejecting it as implausible or inconsistent with any documentary or incontrovertible evidence.

47. Neither Ms Bullivant nor Ms Parsons was precise as to the timing of Ms Bullivant’s first report of shoulder pain at her workplace. This is hardly surprising in view of the lapse of time between the accident and the District Court hearing. As Ms Bullivant acknowledged, her memory of the events was not (and could not be) perfect However, the evidence as a whole comfortably justifies a finding on the balance of probabilities that Ms Bullivant reported to Ms Parsons that she was experiencing shoulder pain within a week or so of the motor vehicle accident.

The medical evidence

49. The finding that Ms Bullivant reported her symptoms within a week or so of the motor vehicle accident does not of itself resolve whether the injuries to her shoulder and neck were caused by the accident. For this purpose it is necessary to consider the medical evidence. Since none of the medical witnesses gave oral evidence, the evidence is limited to the clinical notes and medical reports tendered by the parties. This Court has often commented on the burden placed on the trier of fact when the parties simply tender medical reports and decline to cross-examine the authors of the opposing party’s medical records. The Court has also commented on the risks that this course creates for the party bearing the onus of proof. [16]

    16. Cupac v Cannone [2015] NSWCA 114 at [14]–[18] (Sackville AJA, Macfarlan and Meagher JJA agreeing) and cases cited there.

50. The medical witnesses differed in their views as to whether Ms Bullivant’s shoulder injury could have been symptomatic for a period and as to whether the pain associated with a rotator cuff injury can worsen over time. Dr Ireland, who treated Ms Bullivant between 3 July 2003 and December 2006 provided a report on 6 July 2016. The report included the following questions and answers:

“1.   In your treatment of Ms Bullivant and the surgery undertaken, do you consider her left shoulder problems are consistent with a history of trauma arising from a motor vehicle accident on 21 February 2003 as she describes?

Yes I do believe this is consistent with the motor vehicle accident.

2.   Is it medically consistent that the initial symptoms as she described in the above statement, would have become more noticeable and more pronounced when she undertook the work she describes.

Yes I do believe that the repetitive nature of her work would have aggravated the underlying symptoms making them more noticeable and more pronounced.

3.   Is it consistent with the history recorded by you and the date of injury recorded in the medical certificate dated 4 July [2003], that Ms Bullivant suffered injury to the left shoulder in the motor vehicle accident with ‘increasing’ symptoms as recorded paragraph 2 of your report dated 3 July 2003 whilst performing her normal duties albeit not recording significant pain associated with the motor vehicle accident as detailed in paragraph 5 of your report 3 July 2003.   

Yes I believe this is consistent with the history related to me and it is certainly not unusual for symptoms related to the rotator cuff become worse over time with repetitive and overhead use of the arm. It is likely that even without significant pain associated with the motor vehicle accident.”

51. As the report indicates, Dr Ireland saw no inconsistency between the statement in his first report of 3 July 2003 that Ms Bullivant had noticed “increasing pain in her left shoulder over the past 10 weeks” and his view that her history was consistent with trauma arising from the motor vehicle accident. Dr Ireland’s report also provides an explanation as to why Ms Bullivant may have attributed her worsening symptoms to repetitive strain injury rather than to injuries sustained in the motor vehicle accident. On his evidence, she continued at work and experienced increasing levels of pain associated with the repetitive tasks she was required to perform.

52. Mr Turnbull submitted that Dr Ireland’s report should be understood as conveying that Ms Bullivant first experienced symptoms in mid-April 2003 (nearly two months after the accident). But that is not what the report actually says. The fact that pain levels have increased materially over a given period does not necessarily imply that the patient first experienced pain at the beginning of the period.

53. Dr Pillemer recorded that Ms Bullivant did not feel any particular discomfort at the time of the accident but within a week or so experienced discomfort in her left shoulder and on the left side of her neck. Dr Pillemer opined that the motor vehicle accident was a substantial contributing factor to her ongoing problems. He identified those problems as including injuries to her shoulder and cervical spine. Dr Pillemer evidently did not consider that a gap of a week between the accident and the onset of symptoms meant that the symptoms were unrelated to the accident.

54. As has been seen, Dr Casikar, a neurosurgeon who reviewed Ms Bullivant’s file in August 2016, considered that the surgery on her left shoulder in July 2003 was unrelated to the motor vehicle accident. But Dr Casikar based his opinion on his belief that Ms Bullivant had “did not have any problems” with her shoulder until “a few months” after the accident and that she did not complain of any neck pain until 2008. Dr Casikar said that he had not seen any evidence “to indicate that there was a neurologically verifiable aggravation of [Ms Bullivant’s] pre-existing degenerative disease”. He deduced that Ms Bullivant had a degenerative disease because she “was complaining of pain and stiffness since 1997”.

55. Dr Harvey, an orthopaedic surgeon, reviewed Ms Bullivant’s file in September 2016. [17] Like Dr Casikar, he rejected the suggestion that her shoulder and neck complaints were linked to the motor vehicle accident. But he also assumed that Ms Bullivant had been symptom free until the consultation on 31 May 2003. Dr Harvey also took into account that Ms Bullivant had a history of back pain predating the accident.

    17.    See at [20(8)] above.

56. Dr Machart’s first report of 29 February 2008 [18] recorded that Ms Bullivant suffered no pain at the time of injury but developed pain two weeks later. Dr Machart “doubted” that she suffered severe structural injury in the form of a rotator cuff rupture as a result of the motor vehicle accident. Although he accepted that she might have been suffering from impingement, it was “debatable” whether the impingement was caused by the injury. These opinions can hardly be regarded as definitive or conclusive.

    18.    See at [20(6)] above.

57. In his third report of October 2009, Dr Machart in effect restated his opinion, although on this occasion he recorded that the left shoulder pain had developed “several weeks” after the accident. He thought that there was a pre-existing condition and that “symptoms developed spontaneously subsequently”. Dr Machart stated that the motor vehicle accident did not cause “structural injury to the shoulder and neck”. He did not explain the nature of the pre-existing condition that could have led to the spontaneous development of symptoms within a few weeks of a motor vehicle collision.

58. As I have observed, it is always difficult to assess competing medical opinions without the doctors concerned giving oral evidence or at least conferring to determine points of agreement and disagreement. However, the finding that Ms Bullivant first complained of symptoms in her shoulder and neck within a week or so of the accident makes it very difficult to accept the opinions of Dr Casikar and Dr Harvey, neither of whom examined Ms Bullivant. Their reports are based on the erroneous assumption that Ms Bullivant had been symptom free for a period of about three months after the accident. By contrast, both Dr Ireland and Dr Pillemer correctly proceeded on the basis that Ms Bullivant made complaints within a week or so of the accident. Their opinions to the relationship between the accident and Ms Bullivant’s injuries are clearly to be preferred.

59. Dr Machart assumed in his first report that Ms Bullivant first experienced pain about two weeks after the accident. In that report he expressed doubts about whether Ms Bullivant’s injuries were caused by the accident, but did not state a categorical opinion. His second report was somewhat more definite, but appears to have assumed that Ms Bullivant first developed pain in her shoulder “several weeks after the accident”. It is unclear why Dr Machart made this assumption as he does not attribute it to any change in the history given by Ms Bullivant. Dr Machart says in his second report that the accident did not cause “structural injury to the shoulder or neck” but he does not offer a clear explanation as to why Ms Bullivant exhibited the symptoms and signs of physical trauma that she did so soon after the accident.

60. Although none of the medical experts identified any particular events predating the accident that might have caused the injuries to Ms Bullivant’s shoulder and neck, the appellant in submissions referred specifically to three matters. The first is that the general practitioner’s notes record that Ms Bullivant consulted her on 3 May 1999 concerning shoulder blade pain. There is, however, nothing in the notes or other evidence to suggest that this was anything other than an isolated event. Secondly, a consultation that took place on 27 June 1999 concerned a complaint involving Ms Bullivant’s neck but the complaint apparently involved a thyroid problem quite distinct from any of the later problems experienced by her.

61. Thirdly, on 27 September 2000, Ms Bullivant sought treatment for shoulder and neck pain. She reported that the pain was the result of lifting a microwave oven. Again the clinical notes do not suggest that the injury caused any long term or continuing difficulties that might have explained Dr Ireland’s diagnosis on 3 July 2003.

62. When the findings as to when Ms Bullivant first complained of shoulder and neck pain are taken into account, the preponderance of medical evidence favours the view that the injuries to Ms Bullivant’s shoulder and neck were sustained in the motor vehicle accident of 21 February 2003.

Orders

63. Although the appellant has established that the primary Judge erred in law by failing to address significant arguments and evidence, the State’s notice of contention must be upheld. Accordingly, the following orders should be made:

1.   Appeal dismissed.

2.   The appellant pay the respondent’s costs of the appeal.

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Endnotes

Decision last updated: 13 October 2017