Hart v Consolidated Meat Group Pty Ltd
[2005] QCA 421
•18 November 2005
SUPREME COURT OF QUEENSLAND
CITATION:
Hart v Consolidated Meat Group P/L [2005] QCA 421
PARTIES:
NATALIE JOY HART (plaintiff/respondent) v CONSOLIDATED MEAT GROUP PTY LIMITED
ACN 065 093 709 (defendant/appellant)FILE NO/S:
Appeal No 4166 of 2005 SC No 327 of 2004
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Rockhampton
DELIVERED ON:
18 November 2005
DELIVERED AT:
Brisbane
HEARING DATE:
3 November 2005
JUDGES:
Williams JA and Muir and Atkinson JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Appeal dismissed with costs
CATCHWORDS:
APPEAL AND NEW TRIAL – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – respondent suffered workplace related injury – primary judge found respondent a witness of credit – appellant asserts primary judge misused his advantage in hearing and seeing witnesses and failed to give due weight to matters reflecting unfavourably on respondent’s credit – appellant asserts primary judge relied excessively on demeanour in reaching conclusion as to respondent’s credit
EVIDENCE – ADMISSABILITY AND RELEVANCY – OPINION EVIDENCE – EXPERT OPINION – primary judge preferred evidence of respondent’s sole medical expert over appellant’s three medical experts – appellant asserts primary judge misused his advantage in hearing witnesses in coming to this conclusion – whether primary judge relied too heavily on demeanour – whether primary judge adequately articulated his reasons for preferring one expert over another – whether evidence supports primary judge’s conclusions
Uniform Civil Procedure Rules 1999 (Qld), r 211
Abalos v Australian Postal Commission (1990) 171 CLR 167, cited Devries v Australian National Railways Commission (1993) 177 CLR 472, considered Dyson v Leeds City Council [2000] C.P. Rep 42, cited Fox v Percy (2003) 214 CLR 118, applied Jones v Hyde (1989) 63 ALJR 349, cited Public Trustee v Commonwealth of Australia, unreported, New South Wales Court of Appeal, 20 December 1995, considered Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127, considered
COUNSEL:
S C Williams QC, with W P D Campbell, for the appellant D V C McMeekin SC for the respondent
SOLICITORS:
Bruce Thomas Lawyers for the appellant McKays Solicitors (Mackay) for the respondent
WILLIAMS JA: I have had the advantage of reading the reasons for the judgment of Muir J and there is nothing I wish to add thereto. I agree with the order proposed.
MUIR J: After a two day trial of a personal injuries action in the Supreme Court in Rockhampton, the learned primary judge found for the plaintiff and assessed quantum at $307,883.30. The appellant/defendant appeals, contending that damages should have been assessed, after allowing for a refund to CMG WorkCover, in the sum of $41,285.01. The grounds of appeal, broadly expressed, are that the primary judge misused his advantage in hearing and seeing the witnesses and, wrongly, accepted the evidence of the plaintiff and preferred the expert medical opinion evidence of the respondent’s sole expert over that of the appellant’s three medical experts.
The respondent, a 25 year old working as a meatworker in the appellant’s Lakes Creek meatworks at Rockhampton, was injured when a box of meat weighing about 20 kg being lifted by a forklift fell on the back of her neck rendering her unconscious.
As a result of the accident the respondent suffered a substantial trauma and was unable to work for about three months. During this period she complained of considerable back pain and severe headaches. An orthopaedic surgeon who saw her on 22 October 2001 recorded that she was “in obvious discomfort”, experiencing difficulty in “elevating her arms properly above shoulder height” and exhibiting a “considerable loss of range of movements” in the cervical spine. That surgeon considered her to be “totally disabled” at that time as a result of soft tissue injuries.
The challenge to the findings as to the respondent’s credit
The appellant’s argument advances a number of points against the respondent’s credit. It is submitted that the primary judge failed to recognise the cumulative effect of these matters and the extent to which they reflected unfavourably on her credit. A related contention is that the primary judge relied excessively on demeanour in reaching his conclusions as to the respondent’s honesty.
It is convenient to consider each of these credit points in light of the respondent’s response to them.
Non-disclosure of car detailing work – the appellant’s argument
The respondent returned to part-time car detailing work with Network Car and Truck Rental within six weeks of ceasing employment with the appellant, but did not disclose this to her solicitors until the eve of trial. Nor did she disclose such work to the appellant in her statement of loss and damage or in disclosure under the Uniform Civil Procedure Rules 1999 (Qld).
The respondent’s response
It is accepted that there was non-disclosure as alleged but the respondent’s explanation was that she had forgotten about it. This was “hardly improbable” as the work involved “an hour or two’s work a day, less than an average of 10 hours work a week, over seven weeks”. The work was done over two years prior to trial and the respondent’s gross earnings from it amounted to $661. The respondent’s explanation gains credibility from the fact that she disclosed her work at Hertz, which was full-time and more demanding, and from her disclosure of her employment at the Casino meatworks.
The Hertz car detailing work – the appellant’s argument
The respondent did car detailing work full-time for Hertz for seven weeks between February and April 2003 earning $2,931 net. Before the trial, she disclosed only $609 net earnings from this employment and only in respect of the month of January 2003. The work was strenuous and inconsistent with a significant impairment of neck function. The respondent, however, did not tell Dr Shaw and Dr Boys, two of the medical practitioners who examined her, about these jobs. Nor did she declare these earnings to the Commissioner of Taxation. She may not have disclosed them to Centrelink either.
The respondent’s response
The disclosure in the sum of $609 was plainly an error as it coincided with the sum shown as tax withheld on the respondent’s PAYG payment summary. The respondent was an unsophisticated witness and unlikely to be astute in relation to taxation matters. Her response to the allegation that she failed to file an honest tax return was that she had handed all her group certificates to her accountant. It has not been established that she deliberately withheld information from the appellant or the Commissioner of Taxation.
As for the allegations concerning Dr Shaw and Dr Boys, it is submitted that the respondent’s interview with Dr Boys was short and that he did not ask her much at all. She did not lie to him or Dr Shaw. “The issue is more: what question was she asked? What opportunity did she have to recollect fully her work history? And how important did it seem to both her and the examiner that the history be complete?”
Conclusions in relation to the non-disclosure of car detailing work
The primary judge acknowledged in his reasons that the evidence disclosed that the respondent had failed to declare some part time income in her tax returns. Nevertheless, that matter and other considerations addressed below did not cause him “to doubt her evidence on the matters relevant to [the] case”. The reasons make no specific reference to the other arguments advanced against the respondent’s credit.
The matters on which the appellant relies are far from overwhelming. The respondent gave an explanation for non-disclosure of the Network Car and Truck Rental work and earnings. The primary judge was entitled to accept it, particularly as the respondent disclosed other more extensive work activities. Much the same point may be made of the Hertz non-disclosure. There is no sound reason why that cannot be attributed to carelessness or mistake. Laxity, particularly in a person of little financial sophistication, is not to be equated with dishonesty.
In my view, the failure to reveal a work history to Drs Shaw and Boys, although potentially more telling, loses much of its significance in light of the fact that on both occasions on which the respondent saw Dr Boys and when she saw Dr Shaw for the second time, she was engaged in the strenuous work of truck driving at mine sites. She revealed to both medical practitioners that she had worked at the Casino meatworks between May and December in an occupation involving lifting and packing. In her second consultation with Dr Shaw she revealed that she did some cleaning work with her mother. Dr Boys was also told about the cleaning work.
There is no reason to suppose that the respondent regarded her work as a meatworker or cleaner as lighter or more compatible with her symptoms than work as a car detailer.
Assuming that both medical practitioners attempted to record the respondent’s full work history, the primary judge was entitled to find that the omissions, viewed in light of the information provided by her, were not deliberate or dishonestly made.
Misleading doctors and employers – the appellant’s argument
Considerable additional emphasis was given to alleged differences between the appellant’s evidence about her symptoms at trial and the histories given by her to medical practitioners.
In oral submissions the appellant’s counsel placed greater emphasis on alleged inconsistencies and omissions apparent in the respondent’s dealings with employers, medical practitioners, physiotherapists and other health industry workers, than on the imperfect disclosure of her employment history.
The plaintiff gave detailed disclosure of her September 2001 accident to Dr Fenner but agreed that she had “deliberately misled him” about her then current symptoms to get employment in the mining industry.
She was employed by HMP Earth Contractors, formerly Helvory Contractors, when, on 29 September 2003, she was taken to hospital with symptoms which included vomiting. The medical history she gave made no reference to neck pain. On her account she was “too scared to mention it because of my job”. She said, however, that she told her supervisor about her sore neck. She later told a Mr Campbell about it. He was an employee of a labour hire company which had recently arranged for her to get a new job. Her evidence was that she did not tell the Moranbah Hospital about her symptoms lest her employer find out about her condition.
The hospital records in relation to the respondent’s attendance at the Moranbah Hospital on 29 September 2003 make no reference to neck pain. One may thus draw the inference that the earlier attendance at her employer’s sick bay and at the hospital were unrelated to neck pain. The respondent swears to the contrary. The facts revealed by these records “also taints the evidence of Brodie and Holmes who were either misled by the [respondent] at that time or subsequently”.
Misleading doctors and employers – the respondent’s argument
It is submitted on behalf of the respondent that there is nothing inherently improbable in her account of things. Rather, her conduct is “what one would expect of a determined, genuine woman with a strong motivation to work… [Her] concern that there not be a medical record of her having neck pain as it might adversely affect her employment is consistent with this view”.
The respondent’s evidence receives a considerable degree of corroboration from the evidence of Mr Holmes, a supervisor with HMP Earth Contractors. He observed from time to time that she appeared to be suffering pain and was informed by her that her head was aching and that her neck pained.
There is nothing inconsistent between the respondent’s belief that her vomiting attack was associated with neck pain and headaches on the one hand and the medical records and contrary medical opinion on the other. Holmes’s evidence supports a causal connection, as does that of Brodie.
Conclusions on the misleading of doctors and employers point
The evidence of Holmes was that prior to the respondent leaving for hospital, he gave her “a bit of a pat” in the region of the neck upon which the respondent “let out a bellow” and told him that it hurt. He repeated that account in cross-examination and reported that the respondent “was her own worst enemy” as instead of staying home when she was in pain she would come to work. He said that on occasions he would tell her to “go and sit in the crib hut for a while, take it steady till you feel better”. This was on occasions when she was “suffering headaches and pain”.
Mr Brodie, at relevant times, was a driver for HMP Earth Contractors. He first entered into a romantic relationship with the respondent in February 2004 and at the time of trial they were living together. He gave evidence as to her continuing neck pains for which he would often, at her request, massage her neck and shoulders. From time to time he observed her vomit after complaining of pain and being massaged.
The evidence of Holmes and Brodie was not discredited by cross-examination and no other evidence demonstrates that the primary judge ought not to have accepted it. The evidence of these two witnesses strongly supports the respondent’s account of continuing neck pain which, on occasions, led to vomiting. The respondent’s stepfather also gave evidence which strongly supported a history of quite marked neck pain since the respondent returned to live with him in about August 2003.
The primary judge did not accept that the respondent’s concealment of her neck pain symptoms from her employers and Dr Fenner so affected her credit that her sworn evidence could not be accepted. That conclusion is not in any way remarkable. It surely accords with common experience that many employees, particularly in unskilled or semi-unskilled areas of employment involving strenuous work, would be most reluctant to divulge the existence of any physical condition which might harm their employment prospects.
I do not consider there to be much force in the argument that the respondent’s evidence of intentional non-disclosure to Dr Fenner, the Moranbah hospital and ambulance staff is inconsistent with her evidence that she revealed her condition to Holmes, her supervisor that it tells against her credit. The evidence of Holmes reveals reticence on the part of the respondent to discuss her symptoms. Holmes became aware of them through his own observations. Also it is reasonable to conclude that the appellant may have reposed a degree of trust in Holmes which would have lessened her concern about the possible disadvantageous use by him of any knowledge he may have had of her physical difficulties.
Some time was spent in address by senior counsel for the appellant in analysing and comparing the medical histories given by the respondent to Dr Fenner at the Moranbah hospital, Dr Shaw on 10 June 2003, Dr Boys on 4 August 2004 and Dr White on 30 October 2003. It was submitted that it heavily told against the respondent’s credit that only the medico-legal report of Dr White addressed symptoms of significant headaches and neck pain. Also, it was submitted that the respondent’s oral evidence of constant pain did not sit easily with her accounts of her symptoms to medical practitioners and physiotherapists.
The explanation for the absence of information about those ailments in the history given to Dr Fenner has been explained earlier. Dr Shaw’s report does not refer to headaches but it does record “constant neck discomfort” and the taking of pain relief medication. At the time the respondent saw Dr Shaw, she was not working. The finding of the primary judge that the respondent’s symptoms subsided when she ceased heavy work was unchallenged.
Dr Boys’ report describes the respondent’s neck symptoms as “intermittent” and “sporadic”. There is no reference to headaches. There are a number of possible explanations, other than deliberate exaggeration or falsehood, for the differing medical histories. The evidence reveals the respondent to be a relatively unsophisticated person, stoic in her attitude to her ailments and likely to have some reticence in discussing them.
Consequently, the care with which and the time over which the respondent’s medical history was taken and the symptoms actually present at, and immediately before, the relevant consultation could account for differences in the histories recorded by different medical practitioners.
The failure on the part of the respondent to emphasise headaches and neck pain in all of her histories is not a matter of great moment. The evidence of the lay witnesses discussed earlier provides ample corroboration of the respondent’s oral evidence in that regard. Her evidence is supported also by her physiotherapist whose records indicate a history of neck pain. She spoke also of the respondent’s complaints being common enough amongst truck drivers at mines.
The appellant’s argument relied heavily on the contention that the primary judge’s acceptance of the respondent’s evidence was reliant on demeanour. I am not persuaded that this was so. Critical aspects of the respondent’s evidence were corroborated by other witnesses. Many of the matters relied on in argument as telling against the respondent’s credit, were capable of an innocent rather than sinister explanation.
Also the primary judge was able to assess the evidence of the respondent in the light of his appreciation of her character derived from evidence of her conduct and the accounts of others.
The evidence revealed a young woman who was a willing and determined worker anxious to make her way in life and resolute in her desire not to succumb to physical handicaps.
In Fox v Percy,[1] Gleeson CJ, Gummow and Kirby JJ, in discussing the circumstances in which an appellate court may set aside a trial judge’s finding of fact, reaffirmed the authority of Jones v Hyde,[2] Abalos v Australian Postal Commission[3] and Devries v Australian National Railways Commission[4] In Devries, the relevant principle was stated as follows in the joint judgment:[5]
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.” (footnotes omitted)
[1](2003) 214 CLR 118.
[2](1989) 63 ALJR 349 at 351-352; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-483.
[3](1990) 171 CLR 167.
[4](1993) 177 CLR 472.
[5]At 479.
Some further elaboration of the circumstances in which a trial judge’s findings on credit may be interfered with was given in the following passage from the joint judgement in Fox v Percy:[6]
“In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion.” (footnotes omitted)
[6]At 128.
In my view, the appellant has failed to demonstrate that the evidence accepted by the primary judge was “glaringly improbable”, “inconsistent with facts incontrovertibly established by the evidence” or that the primary judge otherwise “failed to use or has palpably misused his advantage”.
The challenge to the rejection of the appellant’s medical evidence – the primary judge’s findings
The primary judge’s reasons for preferring the evidence of Dr White over the other medical experts is contained in paragraphs [6] and [18] – [24] of his reasons. Paragraphs [6] and [24] state:
“[6] While no objectively detectable abnormality can be found, Ms Hart still complains of consistent neck pain and headache. Having regard to what I later say about Ms Hart’s history since the incident and my impressions of her, I accept that the complaints are genuine. It is well recognised that even soft tissue injury can result in chronic symptoms in some patients. (See transcript page 28, line 40 to 50 (Dr White)). The inconsistency between the symptoms Ms Hart now complains of and Dr Thomas’ last report is explicable by reason of the fact that Ms Hart was performing only light duties at the time of the report. The history which follows shows that whenever Ms Hart commences reasonably heavy work she suffers increased symptoms. Conversely, when that activity ceases the symptoms subside.”
“[24] Having reviewed the evidence, I am satisfied that Ms Hart suffered a whiplash style injury. The symptoms of headaches and neck pain are consistent with that finding. I am satisfied that the symptoms have largely settled and remain so while Ms Hart undertakes light duties. I accept that whenever Ms Hart has undertaken heavier, or in the case of truck driving, rougher work her symptoms have increased. Ms Hart’s evidence in this respect is supported by the evidence of Mr Brodie, Mr McCormack and Mr Holmes. The end result is that I accept Dr White’s opinion that she has been left with a residual weakness which affects her capacity to work in certain types of occupation.”
In paragraph 19 of his reasons, the primary judge set out part of a report of Dr Shaw made in June 2003 in which, referring to the respondent’s soft tissue injury to the neck in the subject accident, he observed: “It is possible she does experience recurrent musculo-ligamentous pain with heavier work and perhaps this should be minimised.” The primary judge found that opinion difficult to reconcile with Dr Shaw’s evidence on trial that the present symptoms are not injury-related. His Honour pointed out:
“Ms Hart only seems to experience symptoms when participating in heavier types of work. When she is not involved in work such as meat packing, car detailing or driving in the mines, all of which put strain on her neck, her symptoms appear to settle.”
In paragraph [21] of his reasons, the primary judge notes Dr Boys’ opinion expressed in an August 2004 report that “the symptoms complained of were consistent with muscle strain” but that the respondent’s symptoms would improve with strengthening exercises and that in his opinion she was not incapacitated.
The appellant’s argument in relation to the medical evidence
The appellant submits that the primary judge should have accepted the evidence of Drs Thomas, Shaw and Boys, the general thrust of which was that the respondent’s symptoms arising from the subject injury had resolved themselves and that she was fit to return to work. The appellant’s outline of submissions does not criticise the evidence of Dr White or the primary judge’s reasoning behind his acceptance of that evidence in preference to that of the other medical practitioners. Nor were any such criticisms made in oral submissions. The point which the outline appears to be making, by inference, is that the weight of evidence, there being three medical opinions on the appellant’s side against one on the respondent’s, favoured acceptance of the former.
In oral submissions a mild challenge was mounted to the findings that the respondent would be likely to be able to continue working in her present job as a truck driver for only two more years. This was said to be inconsistent with the evidence that she had had no or very little time off work despite her symptoms. It is sufficient to dispose of this argument to note that the primary judge’s finding receives strong support from Dr White’s evidence and is hardly improbable in the light of the evidence of her levels of pain and discomfort.
Summary of the evidence of the medical practitioners called on behalf of the appellant
In Dr Boys’ opinion, the plaintiff’s continuing neck symptoms “would appear to reflect simple muscle strain” and her condition would not deteriorate. Dr Shaw, in a report of 10 June 2003, stated that he would have expected the incapacity arising from the respondent’s accident “to have settled by six months post injury”. He concluded: “Ongoing symptoms are not related to this incident”.
Dr Thomas examined the respondent on 22 October 2001, about three weeks after the accident. He saw her again on 10 December 2001 and reported to the appellant’s claims officer in a report dated 13 December 2001 that the respondent “appears to be making a satisfactory recovery”. He saw the respondent again on 5 February 2002 and reported to the appellant’s claims officer the next day:
“This lady is recovering very satisfactorily from any soft tissue trauma that she sustained some 4 to 5 months. She does not really present with any significant handicap and, all other things being equal, I think she is now fit to return to her previous form of employment.”
In his evidence-in-chief Dr Thomas was not invited to comment on the opinions expressed by Dr White. In response to a question in cross-examination he said:
“Well…these types of injuries do take quite some months to clear. And then there’s the occasional person that it doesn’t clear up in but …you generally give people the benefit of the doubt for several months…for it to improve…only time will tell how long it’s going to take to get better.”
He later said that there was a “percentage that do complain of recurrent aches and pains” but that “some of those people already have wear and tear changes in their neck before they’ve had the injury…”.
Summary of Dr White’s evidence
Dr White, an orthopaedic surgeon, disagreed with Dr Shaw’s opinion that any incapacity arising from the subject injury should have ceased within six months and that any continuing symptoms were not related to the injury. In his opinion, the diagnosis was not satisfactorily established as x-rays and CAT scans do not show discogenic injuries. Moreover, if the injury was in the brachial plexus (“the whole conflagration of nerves that come out of the neck”) a neurological examination may have revealed the cause of symptoms. That was not done and “the diagnosis has not been confidently established”.
He referred to a text which, according to him, supported the conclusion that the existence of evidence of symptoms continuing six months after injury indicates that the patient is likely to have continuing problems and where the symptoms continue for two years after injury some 90 per cent of sufferers will have continuing problems. In his opinion, the respondent’s symptoms had continued for a little over three years, at the time of trial. The authority of the text was not questioned by any of the medical experts called on behalf of the appellant.
In his report dated 30 October 2003 Dr White concluded that the respondent suffered an injury to her cervical spine “similar to a musculo/ligamentous strain with possible intradiscal disruption”. He assessed her as having a 5 per cent whole person permanent impairment and regarded her as “permanently unfit for work involving heavy physical labour or maintenance of the head and neck in fixed positions for extended periods of time”. In his opinion, she was “unsuited to her current truck driving duties in the mine consequent to the repetitive jarring sustained”.
Conclusions on the challenge to the primary judge’s acceptance of Dr White’s evidence
The principles reaffirmed in Fox v Percy apply also in the case of expert evidence.[7] Although it is necessary for a trial judge to properly articulate his or her reasons for preferring the evidence of one expert over another,[8] that can sometimes be difficult and the reasons may be more intuitive than exhibiting an intellectually reasoned approach. On occasions, demeanour may play a crucial role in the process. In Wiki v Atlantis Relocations (NSW) Pty Ltd, Ipp JA, with whose reasons Bryson and Stein AJA agreed, observed:[9]
“Situations may arise where, after due consideration of the reasoning of the differing views of the expert witnesses, the judge is simply unable to decide the issue otherwise than by impression and demeanour.”
[7]Abalos v Australian Postal Commission (1990) 171 CLR 167; Wilsher v EssexArea Health Authority [1988] AC 1074 at 1091 and Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] 60 NSWLR 127 at 138.
[8]Wiki v Atlantis Relocations (NSW) Pty Ltd at 128, Martin v Rowling & Anor [2005] QCA 128 and Dyson v Leeds City Council [2000] C.P. Rep 42.
[9]At 136.
Ipp JA then went on to quote a passage from the reasons of Mahoney JA in Public Trustee v Commonwealth of Australia[10] in which his Honour said:
“When a judgment must be made between the facts and the principles advocated at the trial, the court may not be in a position to give objectively convincing reasons for its choice. It may, in the end, have to depend upon the impression which the witness has made…”
[10](Unreported), NSWCA, 20 December 1995.
A difficulty in the assessment of expert opinion evidence of the type under consideration is that it is often not fully supported by objectively demonstrable facts or a logical reasoning process. It may be based, in varying degrees, on the knowledge of the witness accumulated through clinical experience, research and the various avenues of professional learning. Professional judgment may play a significant role in the formulation of the opinion.
Although a trial judge must determine a contest the subject of competing expert evidence according to the weight of evidence, the weight of evidence does not coincide, necessarily, with the number of opinions supporting one side or the other. In this case, however, the opinions were based substantially on professional judgment and the evidence did not disclose any material differences between the experts in terms of professional expertise, standing or experience. The fact that three experts held a view contrary to that of Dr White was thus a material consideration.
All medical witnesses gave their evidence by telephone. Consequently, demeanour was unlikely to have a significant role in the primary judge’s assessments of the evidence of these witnesses and his reasons do not suggest that he took demeanour into account. The primary judge, clearly, was favourably impressed by Dr White’s evidence but was less than expansive in his reasons for preferring his views over those of his colleagues. It may be inferred from the reasons, however, that the primary judge thought that Dr White’s opinions were based on an assessment of the severity and continuity of the respondent’s symptoms of neck pain which accorded more with his findings than did the assessments of the other medical practitioners. That is sufficient, of itself, to justify the primary judge’s acceptance of Dr White’s evidence. There are other matters which support the primary judge’s conclusions.
It was not contended at first instance that Dr White’s opinion was not supported by the authors of the text to which he referred. In cross-examination Dr Thomas, in the evidence earlier discussed, implicitly accepted the possibility of the condition discussed in the text and found by Dr White to exist. Although in Dr Thomas’s view there was only “a small proportion that … do seem to have recurrent … problems”, the evidence of the respondent, corroborated in significant respects, greatly assisted the conclusion that she fell into that category.
In cross-examination Dr Shaw agreed with the proposition advanced by reference to the medical text that if “symptoms of a soft tissue injury or musculo-ligamentous injury to the neck have been present for two years, then the likely prognosis [assuming the continued existence of pain] is for ongoing symptoms”. He accepted that if it was in fact the case that some three years and four months after the injury the respondent continued to suffer neck pain it was likely that such pain would be “long term”. In the respondent’s case, however, he preferred the view described as “my best guess, my educated guess” that the respondent’s symptoms were the result of “a recurrent musculo-ligamentous injury” caused in succession by repetitive acts. Elsewhere in his evidence he described his diagnosis as, being made in the absence of objective evidence, a “best guess”. The foundations upon which Dr Shaw’s opinion rested were thus less than unshakeable.
Dr Boys accepted that the respondent may well have suffered a musculo-ligamentous injury as a result of her accident. He also gave evidence that “persons who have chronic condition of the neck, often have symptoms … to the neck and that occurs when they’re driving…”. There was thus very little, apart from their ultimate conclusions, separating the opinions of the four medical experts. In those circumstances, as the primary judge’s choice had a rational basis and derived support from the matters discussed above, the appellant has failed to meet the tests required by Fox v Percy.
Conclusion
For the above reasons, I would dismiss the appeal with costs.
ATKINSON J: I agree with the reasons for judgment of Muir J and the order proposed.
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