Chase v New South Wales

[2004] NSWCA 441

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Chase v State of New South Wales [2004]  NSWCA 441

FILE NUMBER(S):
40702/03

HEARING DATE(S):               11 October 2004

JUDGMENT DATE: 01/12/2004

PARTIES:
Patricia Lynette Chase - Appellant
State of New South Wales - Respondent

JUDGMENT OF:       Giles JA Tobias JA Bryson JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 284/01 (Gosford)

LOWER COURT JUDICIAL OFFICER:     Gibson DCJ

COUNSEL:
R S McIlwaine SC & R E Quickenden - Appellant
J E Maconachie QC & P N Khandhar - Respondent

SOLICITORS:
Taperell Rutledge - Appellant
Turks Legal - Respondent

CATCHWORDS:
Personal injuries - causation - disc injury to back - found not to have been caused by jumping from a desk at work but to have been caused in the course of a cycling event - whether failure to take into account evidence said to favour injury in jumping from a desk - whether failure to give sufficient weight to admission by payment of workers compensation - finding not shown to have been appealably erroneous.  ND

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA  40702/03
DC 284/01 (Gosford)

GILES JA
TOBIAS JA
BRYSON JA

Wednesday 1 December 2004

CHASE v STATE OF NEW SOUTH WALES

Judgment

1. GILES JA:  The appellant was employed by the respondent.  She said that she suffered a back injury on 16 September 1999 when she jumped off a desk at work.  In October 1999 the appellant was found to have a disc injury at the L5/S1 level with compression of the S1 nerve root, which required a microdiscectomy and left her with pain and weakness in her left leg and considerable restriction in her activities.  She claimed damages for this injury as the injury suffered in the incident at work.

2. Gibson DCJ held that the system of work which required the appellant to be on the desk and led to her jumping off it was an unsafe system.  Her Honour found, however, that there was at most a minor injury when the appellant jumped off the desk, and that the injury for which she claimed damages was not causally related to the incident at work.  She gave judgment for the respondent.

3. For the reasons which follow, in my opinion the appeal against her Honour’s decision should be dismissed.

   The incident at work

4. The appellant was employed as a clerical officer by the Department of Community Services at Peat Island.  On Thursday 16 September 1999 she was closing and locking the windows in the building in which she worked, a responsibility of the employees under a roster system.  One of the windows was difficult for a person who was not tall, who had to climb onto a desk to reach it.  The appellant used a chair to get onto the desk and shut the window.  The presence of another employee outside made her uncomfortable about using the chair to get off the desk.  She put her hands on the desk and jumped off backwards. 

5. The appellant said that she suffered immediate intense pain in her left hamstring and left buttock;  that it was “like a stabbing pain, like a knife going through my leg”, and that she could not stand up straight.  She telephoned her daughter, who was to pick her up, and asked that she be picked up at the building rather than at the entrance to the Peat Island complex to which she would otherwise have walked. 

   The causation issue

6. Early in her reasons the judge identified as the second main issue in the proceedings -

   “  …  the question of causation, namely whether or not the injury suffered by the plaintiff arose from the pain she said in her evidence she suffered immediately following this incident or whether, as asserted by the defendant, the plaintiff was uninjured by this incident and in fact suffered a quite separate accident about a week later whilst participating in an inter-state marathon bicycle ride.”

7. The judge’s reference to the injury suffered by the plaintiff was to the injury for which the appellant claimed damages.  Following the microdiscectomy on 19 October 1999 the surgeon, Dr Michael Biggs, reported that -

   “  …  a huge sequestrated disc fragment was extracted from the canal having dislodged  from the L5/S1 disc.  The S1 root was severely compressed by this fragment and after the discectomy the route lay completely free.”

8. The judge’s references to injury and lack of injury at times could confuse.  When turning to the issue of causation, the judge restated it as “the relationship of the injury the plaintiff suffered when she jumped off the desk to the injuries about which she complains”.  The distinction between an injury suffered when jumping off the desk and the injury for which the appellant claimed damages is again seen, for example, in the judge’s observation that a witness’s “rather hazy recollection” of a complaint of injury on 16 September 1999 “does not necessarily mean that this injury in fact was the actual cause of the plaintiff’s injury”. 

9. The causation issue was whether the injury for which the appellant claimed damages was caused by the incident at work

   The judge’s finding as to causation

10. It will be necessary to go to the evidence in a little detail, but that is best done with foreknowledge of the judge’s finding and an outline of how she came to it.

11. The appellant was a keen cyclist, and was to take holidays from Friday 17 September 1999 to participate in a bike ride from Brisbane to Murwillumbah and return.  She did participate, at least in part.  This was the “interstate marathon bicycle ride” to which the judge referred in the passage in [6] above.

12. The judge first said that it was necessary to have regard to the appellant’s prior history of back and neck complaints to her chiropractor, Mr Anthony Nicholson, and to her activities in the period 17-28 September 1999. 

13. The appellant had received treatment from Mr Nicholson on a number of occasions since November 1997.  The judge noted that the prior history was set out later in her reasons.  At that later point she said that on 10 February 1999 the appellant complained (to Mr Nicholson) of left sided buttock pain over the past two weeks, from which she recovered, followed by complaint of a sore neck following a long bike ride over a few days in May 1999 which together with her back was also sore in July 1999.  Although the judge did not refer to them, Mr Nicholson’s notes also recorded quite a number of complaints of hip, back and neck pain in 1998 and 1999 and Mr Nicholson’s frequent opinion of “jt dysfunction L5-S1”. 

14. The judge then considered the appellant’s activities in the period 17-28 September 1999, including her participation in the bike ride.  She said that -

    “ … having regard to this chronology it is important to carefully analyse just what the plaintiff told each of her treating doctors as these contemporaneous reports are indicative of what the plaintiff said at the time concerning when and how she suffered pain and injury.”

15. After rejecting a submission concerning the effect of payment of workers compensation benefits, a matter to which I will return, the judge then considered at some length what the appellant had told the health professionals who had provided treatment from 28 September 1999 onwards:  not only her doctor, Dr David Little, and Dr Biggs, but also a physiotherapist or possibly chiropractor (it was unclear), Ms Julia Tyack, and Mr Nicholson.  She considered also some medico-legal reports.

16. The judge said -

    “It is my view that the way this evidence should be interpreted is that more than a year after her accident, the plaintiff has determined to attribute her ongoing medical problems to any very minor injury she suffered when she jumped from a desk.  It follows that I do not accept her linking of these two events.  I find that the plaintiff was in fact fit and well when she travelled to Queensland to participate in the bike ride and that the circumstances of her injury are in fact in accordance with the account that she gave to all of those who treated her at the time, namely that the onset of her pain occurred in circumstances similar to her earlier buttock/lower back pain from cycling in February 1999.

    Accordingly, the causation link would fail on the medical evidence alone.  However, there is an additional reason for my rejection of this evidence and that arises from my findings as to the plaintiff’s credibility as a witness.”

17. The judge then gave reasons for her view that the appellant had not “given a reliable account of what actually caused her injury”.  Her Honour’s explanation included -

    “My finding that the plaintiff is not a witness of credit is based on a number of factors including her demeanour in the witness box, the inconsistency between her evidence and contemporaneous medical records and her attempt to explain these away by attributing these differences to the incompetence or oversight of her treating doctors”.

18. The judge ended her reasons as to causation -

    “As a result I find that the plaintiff has not established on the balance of probabilities that she injured herself by jumping off the desk on 16 September 1998 [sic: 1999] as alleged”. 

19. Read with the reasons as a whole, this was not a finding of complete lack of injury in the incident at work.  The judge had earlier referred to “any minor injury” the appellant suffered when the appellant jumped from the desk.  The finding was that the injury for which the appellant claimed damages was not shown to have been caused by the incident at work.

    The evidence in more detail

20. The appellant said that she had a hot bath on the evening of 16 September 1999, but that she still suffered the same pain and her sleep was interrupted.  She said that the next morning she “couldn’t lift my left limb off the ground.  I was dragging my foot.”  Her daughter dropped her at work.  The appellant said she went to work because it was her last day before the pre-arranged holidays and she had to finalise reports, but that she was very sore and very cautious in the way she walked or moved. 

21. The appellant’s daughter said that she recalled picking the appellant up, and that “I had to lay the seat right back for her to get in the car, she couldn’t get into the car properly”.  She said that the appellant told her that she had hurt herself getting down from a desk and that she was “really uncomfortable”.  The appellant’s daughter had no further recollection of the occasion, and could not remember anything happening the next morning. 

22. The appellant said that on the Friday she told Mrs Cherie Goddard, a fellow employee, of her accident.  She said that she was limping when she arrived at work, and that Mrs Goddard asked what she had done.  Mrs Goddard gave evidence of an occasion when the appellant did not look well, she asked what the matter was, and the appellant said that she had hurt her back the previous day and it was “really sore”.  Mrs Goddard said that she told the appellant to put in an injury form, and that the appellant said that she would.  In fact the appellant did not do so.  She completed a compensation claim form in September 2000.

23. On the following day, Saturday 18 September 1999, the appellant left for Brisbane where she was to meet others and engage in the bike ride.  The appellant did not seek medical attention before doing so.  She said that her daughter picked her up again at the end of the Friday, and that she did not seek medical attention because “my doctor was already closed”.   

24. The appellant drove from Sydney to Brisbane, a ten hour trip, with a stop at Macksville.  She said that she was stiff in the upper part of her leg and that her buttock was very painful and tender.  Her car had a manual transmission, and she said that it was quite painful when she used the clutch.  She said she took Panadeine, but was quite sore and stiff when she arrived in Brisbane. 

25. Mr John King was a fellow cyclist, who had met the appellant on a ride in April 1999 when (in his words) they “became an item”.  They were in daily contact.  Mr King was in Brisbane.  He gave evidence that he spoke to the appellant on the telephone on the evening of 16 September 1999, and that the appellant told him that she had hurt her back jumping off a desk at work;  she had “scrambled back to get off the desk and had – she had felt some pain in her back”.  The appellant had not suggested that she would not come to Brisbane, and the next day had “just said that she was a bit uncomfortable”.  When Mr King saw the appellant on her arrival in Brisbane he noticed that she was limping.  He said that the appellant said “that she had pain in her lower back and glute and she - on driving up she’d had to stop a couple of occasions to stretch it and to have a rest and she was uncomfortable”.  

26. There was some confusion in the evidence of the next few days.  The appellant said that she rested on 19 and 20 September 1999, save for riding for about 15 kilometres on 20 September 1999 “to see how my leg went”.  She said that painkillers had given her ease, but that her foot was still painful when she tried to lift it off the ground, and that the bike ride had “loosened [it] up a bit”.  Mr King said, however, that on 19 September 1999 they joined in a social bike ride to Cleveland and return, a distance of about 80 kilometres.  He said that he saw that the appellant was not riding with her usual stamina, and he assisted on a couple of occasions by pushing her along by the saddle of the bike;  he said that the appellant was complaining of a weakness in her left leg and pain in her buttock, and of feeling uncomfortable.

27. The arranged bike ride began on the following Friday, 24 September 1999.  (This was the date given by Mr King.  The appellant said it began on the Saturday, but that does not fit with other dates.  It does not much matter whether it was the Friday or the Saturday, and I will adopt the former day.)  The appellant did not ride in the meantime.  She said that she felt stiff and sore in her leg.  Mr King said that she told him she was feeling uncomfortable and they decided she should rest.

28. When the ride began the appellant said that she was feeling quite stiff in her buttock and left leg “and in the area of my hamstring painful, like a piercing sort of pain”, but that this did not stop her riding.  She rode to Byron Bay, a distance 107 kilometres and a “reasonably flat” ride.   She said that at the end of the ride that she was tired and sore in her left leg “in my hamstring and my buttock”.  Mr King said that “she complained during the ride and certainly was uncomfortable that evening”.

29. On Saturday 25 September 1999 the ride was from Byron Bay to Lismore, a distance of 80 kilometres.  The appellant said that she did not complete the ride, she travelled in the support van in the morning when they got to hills and that she stopped just before lunch because her leg was too sore when she “tried to pull my foot up the pedal”.  She said that she travelled in the support van in the afternoon.  Mr King’s evidence was a little different.  He said that the appellant was complaining of “a weakness in her left leg and discomfort”, and that he assisted her over the hills by riding beside her and pushing on her saddle, and that after riding about 60 kilometres she travelled in the support van.  According to Mr King, the appellant was told she had had a pretty good ride and should have a rest and see how she felt the next day.  

30. On the third day of the ride, Sunday 26 September 1999, the ride was from Lismore to Murwillumbah, a distance of about 80 kilometres.  The appellant said that she stayed in the support van.  Mr King said that the appellant rode 40 to 50 kilometres “and she chucked it in and we put her in the van”.  He said the appellant was complaining of lack of strength and soreness in the left leg and buttock.

31. The final day of the ride, Monday 27 September 1999, was from Murwillumbah to Southport, a distance of 90 kilometres.  The appellant said that she stayed in the support van.  Mr King said that she rode about 20 kilometres “and couldn’t go  any further”.

32. On their return to Brisbane the appellant consulted Ms Tyack, from whom Mr King had previously received treatment.  The appellant received treatment from Ms Tyack on four successive days commencing on 28 September 1999.  She said that she received relief after the second occasion, although she was not completely pain free at the end of the treatment.  She said, however, that she was unable to drive back to her home at Davistown, near Sydney, “because of my left leg and the intense pain”.  Her car was driven back by Mr King, with her as passenger. 

33. The appellant said that she told Ms Tyack about jumping off the desk and that she had “done that at work”, as a particular incident that had led to her pain.  A report from Ms Tyack was tendered.  She did not give evidence.  The report recorded that the appellant presented with “deep throbbing very intense pain in her left buttock with referral to the leg to the ankle”, and that “Mrs Chase did not indicate a particular incident that had contributed to the severe pain”. 

34. According to the appellant, on 28 or 29 September 1999 she telephoned Ms Jenny Parkinson, her superior at Peat Island, and told her that she had been having physiotherapy for her leg and because of the injury to her leg she might not be back at work at the end of the two weeks of her holidays.  She said that she “described the accident”, telling Ms Parkinson she “climbed onto the desk … to lock the window”.  By inference, according to the appellant in what she said to Ms Parkinson she linked jumping off the desk with the trouble with her leg.  Ms Parkinson was not called to give evidence:  she was still working at Peat Island at the time of the trial.

35. On her return to Davistown the appellant saw Mr Nicholson.  Mr Nicholson’s notes and his letters to Drs Little and Biggs were tendered.  He did not give evidence. 

36. The appellant said that she thought she told Mr Nicholson about jumping off the desk, and that they talked about it.  She did not accept that she told him that the pain began on the cycling trip.  His notes for 5 October 1999 began, however -

    “Pt related that whilst in Brisbane on a cycling trip a week ago she began to experience intense pain around the L buttock region.  She saw a chiropractor four times up there with some minor relief, though her symptoms returned quite quickly.”

37. Mr Nicholson provided treatment, but suspected disc bulging affecting a nerve root and on 7 October 1999 advised consultation with the appellant’s doctor and a CT scan.  In a letter to Dr Little dated 7 October 1999 Mr Nicholson recorded his opinions, including that of joint dysfunction at L4/5, without mention of jumping off the desk. 

38. The appellant consulted Dr Little on 7 October 1999.  She said that she told Dr Little “what I’d done at work”, and that she remembered him asking about workers compensation.  Dr Little’s notes of the consultation, however, did not record the jumping off the desk or any event bringing a sudden onset of pain.  They recorded “Gradual worsening of pain left buttock three weeks ago”, and a tentative diagnosis of a disc protrusion at L4/5 with the words “opinion of chiropractor”.  Dr Little referred the appellant for a CT scan of the lumbar spine.  So far as the evidence showed, Dr Little did not issue a certificate in relation to workers compensation:  as will be seen, it seems that workers compensation was first raised with him in October 2000.

39. The scan was performed on 7 October 1999.  It was reported to show some changes at higher levels but in particular that at the L5/S1 level “Broad central to left paracentral protrusion containing some calcification abuts and displaces the left S1 nerve root”.  The “Comment” was “Compressive left sided disc protrusion L5/S1”. 

40. The appellant saw Mr Nicholson on 8 October 1999, with the CT scan.  Mr Nicholson noted “calcification of the protruded portion of the disc indicating a long-standing condition”, and “Jt dysfunc. at L5-S1 and T5-6”. 

1. The appellant saw Dr Little again on 11 October 1999.  His notes of the consultation recorded that the appellant’s pain had eased a little after three days bed rest, and that the CT scan showed “L5/S1 disc protrusion and calcified disc material (ie long standing disc disease)”. 

2. On 13 October 1999 the appellant saw Dr Little again.  He recorded worsening pain in the left leg, and referred the appellant to Dr Biggs.  The referral letter of that date began -

   “Thanks very much for seeing this 49 year old woman who’d been experiencing worsening pain in the left buttock, radiating down the lateral thigh.  She’s had this pain for some 2 weeks.  It was not precipitated by any specific violence or trauma.”

3. It appears that Dr Little was in touch with Mr Nicholson, and Mr Nicholson wrote reports dated 14 October 1999 addressed to Dr Little and Dr Biggs for their assistance.  The reports were materially in the same terms.  That addressed to Dr Biggs began -

   “  …  Mrs Chase has periodically attended this clinic since late 1997 for a range of complaints including neck, right hip and low back pain, though before her current episode she had been relatively symptom free for many months.

   Mrs Chase’s most recent episode began whilst away on a cycling trip in Queensland approximately three weeks ago.  She related that whilst on a long ride, a sharp discomfort developed in her left buttock which progressively worsened to involve the posterior thigh.  Concerned by the unremitting nature of the pain with rest she consulted a chiropractor in Brisbane and was treated with manipulation on four occasions before returning to Sydney.  This provided only transient relief and her symptoms were somewhat aggravated by the return car trip.”

4. The appellant saw Dr Biggs on 18 October 1999.  Dr Biggs’ notes and reports to Dr Little were tendered.  He did not give evidence. 

5. Dr Biggs’ notes of the 18 October 1999 consultation read -

   “Feb this yr felt she had a pulled muscle in L buttock.
   Stopped cycling for a few wks & then it was okay.
   6/52 ago got the same thing plus pain across the Lower buttock/back.
   The Leg started to ache & stinging (indecipherable) ankle.
   Pain worse sitting – can’t sit at all.”

6. Dr Biggs’ report of this consultation recorded the appellant’s complaints of pain and his results of examination, and noted the CT scan showing a disc protrusion.  It said nothing of the occasion for the disc protrusion.  It recorded that the appellant was “eager to proceed” with a microdiscectomy.  The appellant said that she could not remember whether she told Dr Biggs about “the jumping incident”, but she must have told him what he recorded in his notes.

7. The microdiscectomy was undertaken on 19 October 1999.  The appellant was reviewed by Dr Biggs on 19 November 1999, with reported considerable improvement. 

8. It appears that in about July 2000 the appellant began to suffer numbness in the extremity of her left leg.  Dr Little arranged an MRI, which he thought showed left S1 nerve root entrapment within scar tissue. 

9. On 14 September 2000 the appellant completed a compensation claim form, giving details of jumping from the desk on 16 September 1999 and hurting her “left leg/buttock”.  A letter apparently accompanying the form included -

   “At the time of this incident, paperwork for Workers Compensation was not completed.  I didn’t think it would turn out to be the problem it has. I’m quite active and fit and although in a lot of pain on Thursday 16th September 1999, I felt being fit and healthy my leg would settle down.

   While I was on holidays, I found discomfort with walking, sitting and cycling.  On 28 September 1999 I visited a Physio …

   I’m completing these forms at this late stage, because I now find I have difficulty in sitting for long periods of time to perform my duties at work.”

10. Dr Little asked Dr Biggs to review the appellant, which Dr Biggs did on 20 October 2000.  He considered that there was no nerve root entrapment, but rather inflammation which would resolve. 

11. The appellant saw Dr Little on 25 October 2000.  Dr Little’s notes recorded -

    “Pt requires workers comp cert re back injury – suffered pain when jumping from desk to floor at work on 16/9/99 – went on holidays – worsening pain & saw me on 7 Oct on return from holidays in considerable distress – needed microdiscectomy
    (ie) work related injury -
    pt omitted to tell me re [two words crossed out] initial injury as she did not feel it relevant at the time.”

12. This was the first time, according to the health professionals’ various notes and other documents, that the appellant referred to jumping from the desk as the occasion for the pain and restrictions which caused her to seek treatment.  In a report later made in relation to workers compensation Dr Little said that on 7 October 1999 the appellant gave a history of back pain when jumping from a desk to the floor at work on 16 September 1999 and thereafter experienced worsening pain, and in that and another report he attributed her current condition to an inter-vertebral disc injury then suffered.  This was not consistent with his notes and referral to Dr Biggs, and the judge did not accept Dr Little’s belated account of the history or see any value in his opinion. 

13. The appellant and the respondent tendered medico-legal reports.  None of the doctors gave evidence. 

14. Dr Nicholas Little, whose report dated 19 July 2001 was tendered by the appellant, took a history of injury in jumping from the desk;  there was no mention of the September 1999 bike ride.  Other than by recording the history, he expressed no view as to causation.

15. Dr Neal Thomson’s reports of 27 November 2001 and 2 December 2002 were tendered by the appellant.  He took a history of injury in jumping from the desk, but also of going on the bike ride but lasting only one and a half days.  He said that the appellant had “suffered an injury at work resulting in lumbo-sacral disc prolapse with nerve root compression on the left side”.

16. Dr Alan Skapinker’s report dated 8 August 2002 was essentially the same as that of Dr Thompson.

17. Dr John Graham, whose report dated 28 October 2000 was tendered by the respondent, recorded a history of intense pain in the left buttock to thigh when jumping down from the desk, that the symptoms settled a little overnight, that during the drive to Queensland “her leg symptoms deteriorated with the development of soreness in the left calf”, and that cycling was found difficult and the symptoms further deteriorated.  Dr Graham said -

    “The difficulty at issue is of course that of causation.  She reports an incident at work just prior to a period of fairly active recreational activity yet at the same time did not make any formal report at work (despite describing the symptoms as fairly florid), and indeed did not make a workers compensation claim when she returned from holidays.  It would not seem that a work related history was given to either her general practitioner or Dr Biggs, both of whom would have had no hesitation in asserting a work relationship in this situation.  Consequently the main issue is the reliability of the history she provides.

    Accepting that her history is reliable then I would have no doubt that the injury has been sustained at work and that her current condition has been substantially contributed to by her employment.

    I have however no way of verifying her history and it does seem in some regards rather unlikely to have occurred as she describes it.  Further investigation in this matter would be advisable.

    I would note that Ms Chase does not have private medical insurance and that the operation consequently would have cost her something in the order of $8,000 from her own income.  It would seem surprising to me that she did not claim compensation at that point if she was aware that she was eligible for it.”

    The judge’s decision

18. I have some difficulties with the judge’s expression of her reasons, apart from the references to injury and lack of injury.  I am not sure what her Honour meant by “the rejection of this evidence” in the passage set out in [16] above.  The appellant’s credibility is part of assessing the significance of the “medical evidence”.  Again reading the reasons as a whole, however, including the judge’s summations of the parties’ submissions, I consider that the judge’s reasoning is clear enough.

19. The judge did not accept the appellant’s evidence of the level of affectation by the incident at work.  That did not mean that there was no effect – hence the reference to “any minor injury” suffered in jumping from the desk.  But the judge said that it was extraordinary that, if the appellant had been as seriously affected as she said, she did not seek medical attention before leaving for Brisbane, and that it was “a little surprising” that she drove to Brisbane without a significant break if she had been unable to sit in her daughter’s car.  The judge noted that the appellant did not seek medical attention in the days before the bike ride began.  She considered that the inconsistency between the “contemporaneous medical records”, plainly all the notes and letters of the health professionals in the latter part of 1999, and the considerable and continuous pain attributed to the particular event of jumping off the desk of which the appellant gave evidence counted very much against the appellant’s credit. 

20. The contemporaneous medical records had further significance, however, because they provided the basis for concluding that the cause of the injury for which the appellant claimed damages was not the incident at work.  If there had been the considerable and continuous pain and affectation from that event, the appellant would have told the health professionals of it.  She did not, but rather told them that her pain began on the cycling trip, that there was a gradual worsening of pain and (in the consultation of 18 October 1999 with Dr Biggs) that she “got the same thing” as pulling a muscle in the left buttock in February 1999.  The judge went through the medical records in some detail, and clearly enough reasoned in this way to her finding.  Although she did not specifically rely on it, she appears to have found it material that, as mentioned by Dr Graham, the appellant had paid a large sum for the discectomy from her own pocket when, if her injury had been work-related, she could have invoked her workers compensation entitlements.

21. The appellant did have the injury found at the microdiscectomy.  The judge was not satisfied that the injury was suffered in the incident at work, but rather considered that it was suffered in the course of the cycling.

    The appellant’s submissions

22. The appellant began with the judge’s words, “I find that the plaintiff was in fact fit and well when she travelled to Queensland … “.  She submitted that, in the light of the evidence of Mrs Goddard and in particular that of Mr King, which had not been significantly challenged in cross-examination, the judge was in error in so finding, and said that the judge failed to pay regard to the evidence of Mr King.

23. This is another occasion of difficulty in the judge’s expression of her reasons.  I do not think her Honour meant fully fit and well at the moment of leaving for Brisbane.  On the causation issue, the question was whether the injury for which the appellant claimed damages was caused by the incident at work, and I consider that her Honour meant that the appellant was not suffering from that injury when she travelled to Queensland;  consistently with that, there may have been the effects of the “any minor injury” suffered when jumping from the desk.

24. So understood, I do not think the appellant is greatly assisted by the evidence of Mrs Goddard and Mr King.  Mrs Goddard supports soreness on 17 September 1999, but her suggestion of an injury form is a reminder that, when the appellant did not put in an injury form even when faced with a discectomy, the appellant did not attribute the injury for which she claimed damages to the incident at work.  Mrs Goddard’s evidence can be seen as supporting the respondent, the absence of an injury form suggesting that in truth the soreness from the incident at work soon abated and there was later injury on the bike ride.  Her Honour did not expressly refer to the evidence of Mr King.  She did, however, refer to the appellant’s evidence that she received “push-a-longs” in the course of the arranged bike ride, and I do not think it should be concluded that she failed to pay regard to it.  She was entitled to discount it in the light of the contemporaneous medical records, without express mention.

25. It was for the judge to weigh up all the evidence and assess the credibility of the appellant’s evidence.  The reliance on the evidence of Mrs Goddard and Mr King in the appeal must provide the incontrovertible facts or incontestable testimony of which Gleeson CJ and Gummow and Kirby JJ speak in Fox v Percy (2003) 214 CLR 118 at [28]. I do not think it does so.

26. The appellant submitted that, as a counter to any failure to tell the health professionals of the incident at work, the appellant had given evidence of telling Ms Parkinson of trouble with her leg linked with the incident at work.  She said that as Ms Parkinson was still working at Peat Island, but was not called by the respondent to give evidence, the appellant’s evidence could more readily be accepted.  However, it is sufficient in my view that, if the judge’s opinion of the appellant’s credit remains, then the appellant’s evidence of telling Ms Parkinson of the incident at work falls together with her evidence of telling the health professionals of that incident.

27. The judge noted the appellant’s submission -

    “  …  that the plaintiff’s [injury] was work related and that her injury [sic: work] materially contributed to her injury:  Heuston v Yore (Hunt J, March 1992, unreported); Macolino v RNSH (Badgery-Parker J, 22 April 1992, unreported)  Wiki v Atlantis Relocation (NSW) Pty Ltd (2003) NSWSC 481.”

28. Her Honour referred to the cases mentioned and other cases, and said -

    “The written submissions of the plaintiff appear to regard the payment of the plaintiff’s workers compensation claim as amounting not merely to an admission capable of being contradicted by evidence but as some form of estoppel.  As my summary of the above cases indicates, that is not the law.  The defendant is entitled to rebut any such admission and to invite me to consider the whole of the evidence.  Accordingly it is necessary to look at what the plaintiff told the chiropractors and doctors who treated her both before and after the accident.”

29. In this Court the appellant submitted that the payment of workers compensation was an admission which stood unless explained away as made by mistake or for some other reason, and that the judge failed to consider whether the admission had been explained away.  Asked whether he said that the admission must carry the day unless explained away, the appellant’s counsel said no but it was “part of the material that can be taken into account”, and that her Honour had failed to take it into account.

30. The judge appeared to accept that the admission could be found in the payment of workers compensation benefits.  It is correct that she did not consider whether it had been explained away.  She did not have to do so.  The unexplained admission was plainly taken into account as part of a consideration of the whole of the evidence.  Any admission is evidentiary only, to be weighed together with all other evidence, and in her Honour’s view on the whole of the evidence the appellant had not established that the injury for which she claimed damages was work related.  There was no error in her Honour’s approach. 

31. The appellant’s submission was really that the judge’s causation finding was marred by giving insufficient weight to the admission.  That depended on the weight it deserved.  The evidence going to payment of workers compensation benefits, from which the weight would emerge, was scanty. 

32. In September 2000 the appellant completed the compensation claim form and wrote the accompanying letter earlier mentioned.  She said that workers compensation payments started “after that time”, identifying them as payments for physiotherapy but nothing else.  Later she said that the payments began “not immediately, but within time”.  Later again she said, apparently referring to the present, that her physiotherapy and visits to Dr Little were being paid for by the workers compensation insurer. 

33. At the end of the evidence the judge was told that an agreed figure for workers compensation would be provided.  The evidence was unclear as to the appellant’s time off work, but it was at least to 7 December 1999 and for some later periods;  whether there was wage loss or whether the appellant used her sick leave was also unclear.  Although giving judgment for the respondent, the judge made some “observations on quantum”.  The observations included under the heading “Out of pocket expenses and workers compensation payments” that there was agreement on “Weekly payments $801.66” and “Medical expenses $13,276.12”.  It is not known what of the medical expenses was paid by the workers compensation insurer and what by the appellant, but it is tolerably clear that weekly compensation payments were minimal. 

34. The appellant was examined by Dr Graham on behalf of the workers compensation insurer in November 2000.  The evidence included a statement by the employee who had been outside the window when the appellant jumped down from the desk.  It was dated 4 December 2000, and the inference is available that the employee was interviewed on behalf of the workers compensation insurer.  The employee said, “I recall Ms Chase made some comment about being in pain”.  The statement referred to a form he had completed at the appellant’s request on 8 September 2000.  In that form the employee said that the appellant was limping on her left leg “after verbalizing that she was in pain”, describing “loud (audible through closed window) groan & indicated L leg/buttock”. 

35. Notwithstanding the doubts expressed by Dr Graham, until the detailed investigation at the trial, with access to the notes and other documents of the health professionals, it is understandable that the workers compensation insurer made relatively small payments in reliance on the appellant’s representations via the compensation claim form and letter.  The judge was entitled, in my opinion, to attribute little significance to the admission when weighing it together with the other evidence.  I do not think it had so much weight that, alone or together with the other matters on which the appellant relied in the appeal, the judge’s causation finding should be overturned.

36. Finally, the appellant submitted that it could not properly be found that her injury “occurred in circumstances similar to her earlier buttock/lower back pain from cycling in February 1999” (see the passage in [14] above), because the February 1999 pulled muscle was quite different from the disc fragmentation found in the discectomy.  Although not fleshed out in this way, the submission was effectively that a compression injury to the disc, as described in the comment in the report of the CT scan, could readily have been caused by jumping off the desk but could not have been, or was unlikely to have been, caused by riding a bike;  if the mechanism implicit in the judge’s alternative cause of the injury for which the appellant claimed damages was unsound, the true cause of the incident at work should have been found.

37. The problem for the submission is that it lacks an evidentiary foundation.  None of the doctors addressed whether the disc fragmentation found in the discectomy could have been or could not have been caused by riding a bike.  This was a fairly remarkable situation when the battle lines at the trial were plain enough, and one would think that Dr Biggs was a prime candidate for evidence that what he found was more likely to have been caused by jumping from the desk rather than riding a bike if that were the case.  I do not suggest an inference against the appellant;  just the fact that evidence of that nature was not given.

1. None of Dr Little, Dr Biggs, or Mr Nicholson expressed reservations that the disc protrusion shown in the CT scan could have occurred in the course of the appellant’s cycling trip.  Both Dr Little and Mr Nicholson seem to have accepted that it was a development of a long-standing condition, capable of activation by bike riding.  Perhaps Dr Biggs was not concerned to attribute a cause, but he did not question the origin of the appellant’s pain on the cycling trip.  The qualifications of Mr Nicholson may or may not lend themselves to an informed opinion, but there is no reason to doubt those of Drs Little and Biggs.  At the least, there are strong grounds for caution in the Court coming to the lay opinion necessary for the appellant’s submission.  I do not think it can do so.  As the evidence was left, it was open for the judge take the view that the injury for which the appellant claimed damages was caused in the course of the cycling trip.

2. The appellant’s submissions made reference to inadequacy of the judge’s reasons.  Understandably, the appellant made plain that she would prefer not to undergo a new trial, and I think that inadequacy of reasons was not maintained as a ground of appeal.  In any event, while the reasons had some difficulties I consider that the judge sufficiently dealt with the evidence and explained why she found as she did.

   The result

3. In my opinion, the appeal should be dismissed with costs.

4. TOBIAS JA:  I agree with Giles JA.

5. BRYSON JA:  I agree with Giles JA.

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LAST UPDATED:     03/12/2004