Hettiarachchi v Transport Accident Commission
[2023] VSCA 27
•23 February 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0024 |
| KUSHAN HETTIARACHCHI | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | BEACH, KENNEDY JJA and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 February 2023 |
| DATE OF JUDGMENT: | 23 February 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 27 |
| JUDGMENT APPEALED FROM: | [2021] VCC 2060 (Judge Robertson) |
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ACCIDENT COMPENSATION – Transport accident – Serious injury application – Applicant suffered injuries to left shoulder and cervical spine – Application refused – Where finding that applicant stopped playing cricket because of low back injury rather than injuries suffered in accident – Whether failure to provide reasons – Whether judge erred in making finding – Leave to appeal refused.
Transport Accident Act 1986, ss 93(4)(d), 93(6), 93(17)(a).
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| Counsel | |||
| Applicant: | Mr D McWilliams with Mr P Santamaria | ||
| Respondent: | Mr PF Solomon KC with Ms FC Spencer | ||
Solicitors | |||
| Applicant: | Maxiom Injury Lawyers | ||
| Respondent: | HWL Ebsworth Lawyers | ||
BEACH JA
KENNEDY JA
J FORREST AJA:
Kushan Hettiarachchi applies for leave to appeal from a decision of the County Court refusing his application for leave to commence common law proceedings for damages in respect of the injuries he sustained in a transport accident on 19 June 2018.
The applicant is precluded from instituting common law proceedings for the damages claimed unless he receives leave from a court pursuant to s 93(4)(d) of the Transport Accident Act 1986 (the ‘Act’). The court must not grant such leave unless it is satisfied the injury is a ‘serious injury’.[1] For the purposes of this application the relevant definition of ‘serious injury’ is ‘serious long-term impairment or loss of a body function’.[2] The body functions relied upon are the applicant’s left shoulder and cervical spine.
[1]Section 93(6) of the Act.
[2]Section 93(17)(a); the applicant withdrew any reliance on sub-para (c) of the definition at the hearing.
In her reasons for judgment delivered on 17 December 2021, a County Court judge concluded that neither the impairment consequences of the applicant’s left shoulder injury, nor his cervical spine injury, reached the required level to constitute a ‘serious injury’. By orders made on 31 January 2022, the judge refused the application with costs.
A key focus of the application before the judge was the applicant’s claim that his left shoulder and neck injuries had left him unable to enjoy his passion for cricket. However, the judge found that the applicant stopped playing cricket because of a low back injury, and not because of the injuries to his shoulder or cervical spine (the ‘cricket finding’). It followed that the inability to play cricket was not a consequence of the injuries suffered in the accident.
The applicant’s sole challenge to the judge’s conclusion was in respect of the cricket finding which he submitted was made in error and/or without adequate reasons. However, for the reasons which follow, we have determined that the judge made no error in making the cricket finding and provided ample reasons for making it. The result is that leave to appeal will be refused.
Background
The applicant was born in Sri Lanka and came to Australia in 2006. He is currently 50 years old, is married and has two children. He is right hand dominant.
The applicant completed high school in Sri Lanka. At tertiary level he completed a diploma in banking and worked in a bank for approximately 14 years prior to his arrival in Australia. Shortly after arriving in Australia, he obtained a job at the ANZ Bank and worked full-time until mid-2018 when his position was made redundant. In 2015, he completed a Masters of Finance and Banking at Swinburne University.
On Tuesday 19 June 2018, the applicant was injured in a transport accident. He was driving a Ford Fiesta in an easterly direction along Lynbrook Boulevard, Noble Park. He stopped at the red light at the intersection with Hallam Road and waited to cross over Hallam Road onto Ormond Road. After the lights changed the applicant’s vehicle proceeded across the intersection and was struck on the left hand side by another motor vehicle travelling south along Hallam Road. The other vehicle entered the intersection against a red light.
Upon impact the applicant’s vehicle spun several times before coming to rest on the grass edge of Ormond Road. The applicant’s back and neck felt hot and sore and he had pain in his left shoulder.
Police and ambulance attended the scene of the transport accident. The applicant was taken to the Dandenong Hospital where he underwent a CT scan of the brain and cervical spine which identified no traumatic injury. He stayed overnight in hospital and was discharged the following day with pain medication.
Evidence
The applicant
In his first affidavit dated 16 June 2020, the applicant stated:
•that he had experienced some right shoulder pain and low back pain prior to the accident, but that it had ‘resolved’;
•the consequences he had been left with after the accident included left shoulder pain every day. The more he used his shoulder, the more it hurt, and he avoided lifting at or about shoulder height;
•he also felt neck pain, though this was not as severe as his shoulder pain;
•he was receiving ongoing treatment and management, and taking medication when necessary. However, given his other medication (including for reflux) he was limited in the medication that he could take;
•his injuries had left him unable to continue to enjoy his passion for cricket;
•his injuries had other consequences, including a negative impact on his marriage, his sleep, his driving and his relationship with his children. He was no longer able to coach his son’s cricket team or run and play with his daughter or give her ‘piggy backs’ as he used to; and
•he had stopped applying for work as he was anxious and in too much pain.
In his further affidavit of 11 August 2021, the applicant disclosed that he had now found work and was working full-time, but also said that he continued to feel pain in his left shoulder every day, with a reduced range of motion in his left shoulder, particularly when raising his arm above shoulder height. He continued to feel pain in the neck, though it was not as severe as his left shoulder pain. He would take over-the-counter medication when the pain was bad, but was unable to take anti-inflammatory medications given his other medical conditions.
The applicant reiterated that he could not enjoy his passion for cricket to the same extent that he did prior to the accident, noting that he tried to continue playing matches in the 2018/2019 and 2019/2020 seasons, but could not bowl, bat or field as well as he could before the accident due to pain and discomfort in his left shoulder and neck. He had not returned to coaching junior cricket since the accident, which upset him as it was something he enjoyed and enabled him to spend quality time with his son.
The applicant’s credit was challenged during his cross-examination. However, given the narrow focus of this application, it is only necessary to refer to limited parts of this cross-examination.
First, the applicant was cross-examined about the extent of his back, neck and shoulder pain prior to the accident, including by reference to entries from relevant clinical records. Those records documented the applicant’s attendances and treatment for low back pain, including around the time he suffered a lumbar disc prolapse in 2016. It was suggested that he had not disclosed the full extent of his injuries prior to the accident.
Secondly, the applicant was also taken to attendances relating to back pain after the accident in June 2018, and leading up to 2019/2020 (being the last season that the applicant played cricket). The judge helpfully summarised this cross-examination as follows[3]:
The plaintiff was cross-examined about his low back pain. He could not recall attending his general practitioner on 4 April 2019 complaining of constant low back pain for the previous seven days. He accepted that on 18 November 2019 he complained to Dr Mendis of sudden onset left low back pain, for which he was prescribed Panadeine Forte tablets and was sent for an x-ray. He also accepted that he saw the doctor again on 10 December 2019, complaining of low back pain ‘on and off’ for four years, and that he had suffered a lumbar disc prolapse in 2016. The plaintiff could not recall the specific part of his lumbar spine which was affected, but the clinical notes record that the lumbar disc prolapse was at L4-5 and L5-S1. The plaintiff agreed that he underwent physiotherapy for his back throughout January and February 2020.
The plaintiff was unable to recall attending Dr Mendis on 22 April 2020, complaining that he was in constant pain which was radiating to his left buttocks and low back, but he did recall being referred to an orthopaedic surgeon, Mr Rez Rahim.
By August 2020, the plaintiff had returned to Dr Mendis with constant back pain radiating to his left buttock. The plaintiff accepted, in cross-examination, the low back pain arose after he bent down to pick up a cricket ball, and that he had required further physiotherapy treatment for his back. It was put to the plaintiff that the back pain culminated in the plaintiff ceasing to play cricket. The plaintiff denied this.[4]
[3]Senior counsel for the applicant accepted that this summary was accurate. There were also clinical records which supported the matters put to the applicant during this cross-examination.
[4]Hettiarachchi v Transport Accident Commission [2021] VCC 2060, [226]–[228] (‘Reasons’).
Thirdly, the applicant was cross-examined about the histories he gave to two doctors as to the reason he stopped played cricket. He was first asked about his account to Associate Professor Abdul Khalid (psychiatrist) contained in a report dated 7 March 2020, which read as follows:
Mr Hettiarachchi said that he enjoys playing cricket and he is a fast-bowler and his physiotherapist is encouraging him to return to playing cricket. He said that he had started bowling slow-medium after taping his shoulder to minimise pain and only played two games, after which he stopped as he [had] pain in his back.
The applicant maintained his denial that he gave up cricket due to back pain. He said that he had injured his back in late November 2019, which was treated in December and that he was away overseas after that. However, he said that he played two more games ‘after that particular day’, ie his explanation for the recorded account was that the back injury did not stop him playing cricket because he returned and played ‘two more games’ after seeing Associate Professor Khalid, which he said was in early February.[5]
[5]The report of Associate Professor Khalid does not expressly provide a date that he saw the applicant, but the report itself is dated 7 March 2020 and it also records that the applicant had seen another practitioner on 2 March 2020.
The applicant was also asked about his account to Mr Douglas Gardiner (orthopaedic surgeon) contained in a report of 10 February 2020 which recorded:
Mr Hettiarachchi describes limitations in his domestic and sporting activities. He no longer plays competitive cricket or coaches cricket as this appears to place excessive stress on his lumbosacral region.
The applicant responded: ‘I played after, so he got it — maybe he must have misunderstood what I said’.
The applicant’s wife
In her affidavit dated 11 August 2021, Anne Hettiarachchi stated that she noticed her husband in pain on a daily basis, and that he complained of persistent pain in his left shoulder and neck, particularly when he attempted domestic chores, gardening and other physical activities involving his upper body.
Ms Hettiarachchi further stated that, prior to the transport accident, the applicant played and coached cricket and attended the club for social events, but that since the transport accident he had become more limited in what he could manage. She stated that the applicant had ‘tried to continue playing for a couple of seasons but he eventually stopped’, and became less involved in the club as a result.
Gerry Van Der Nest
The applicant’s friend, Gerry Van Der Nest, had played cricket with the applicant and affirmed an affidavit dated 13 August 2021. He detailed changes he had noticed in the applicant’s ability to play cricket ‘post-accident’, although (as senior counsel for the applicant accepted) he did not say that the applicant stopped playing because of his left shoulder or neck.
Medical evidence
The judge provided a detailed and careful summary of the reports of the treating practitioners and the medico-legal reports relating to the applicant’s left shoulder and neck.[6] Her findings as to the applicant’s diagnosis and treatment were not challenged and will be identified below. In these circumstances, and given the narrow issue before us, it is unnecessary for us to also detail the medical evidence.
[6]Reasons, [40]–[107], [176]–[188], [191]–[198], [207]–[211], [214]–[220].
Judge’s reasons
The judge comprehensively set out the background, legal principles, and submissions.[7]
[7]Ibid [6]–[39].
Insofar as credit was concerned, the judge generally accepted that the applicant was a credible witness.[8] In relation to the respondent’s submission that he had not disclosed the full extent of his pre-existing injuries she stated:
I had the benefit of observing the plaintiff give evidence. I did not detect, from the evidence he gave under cross-examination, an intention by him to be evasive or disingenuous. He attempted to give genuine answers to the questions that he was asked concerning the nature and symptoms of the injuries he sustained prior to the transport accident. Taking each of the above matters into account, I have formed the view that he genuinely did not remember the detail of every consultation.
In any event, even if there was some residual low back, cervical spine, or left shoulder pain present at the time of the transport accident, such pain does not appear to have been functionally impacting upon the plaintiff in his daily life. The plaintiff said in evidence that his low back pain did not stop him ‘living regularly’. Taking all these matters into account, and considering the totality of the evidence, I have concluded that the plaintiff did not deliberately set out to minimise, in his affidavits, the lumbar spine, neck, or shoulder pain he experienced prior to the transport accident. Accordingly, I am not prepared to make an adverse credit finding against the plaintiff on that basis.[9]
[8]Ibid [5].
[9]Ibid [173]–[174].
The judge further found:
•the applicant was suffering from an impairment of the function of his left shoulder[10] and an impairment or loss of function of his cervical spine;[11]
•the injury to the left shoulder was adhesive capsulitis, and a partial thickness tear of the infraspinatus tendon;[12]
•the applicant had sustained a myofascial injury of the cervicothoracic spinal region with some asymmetry of range of movement, but no signs of radiculopathy;[13]
•both the applicant’s left shoulder and cervical spine impairments were permanent;[14] and
•there was a direct causal link between the transport accident and the applicant’s left shoulder and neck injuries.[15]
[10]Ibid [190].
[11]Ibid [201].
[12]Ibid [189].
[13]Ibid [200].
[14]Ibid [202].
[15]Ibid [203].
In relation to the applicant’s claim that his left shoulder and neck problems had left him unable to enjoy his passion for cricket, the judge first considered the applicant’s answers in cross-examination in relation to the existence and timing of his low back pain as summarised, above.[16] She secondly recorded the statements he had made to Associate Professor Khalid and Mr Gardiner about why he stopped playing cricket.[17] She then said:
I have considered the plaintiff’s answers in cross-examination. The plaintiff saw Mr Gardiner on 10 February 2020. It is possible that, after that consultation, the plaintiff did return to play two further games of cricket, and so did not stop playing cricket — at that point — because of his low back injury. However, by the time the plaintiff saw Associate Professor Khalid in early March 2020, he had already played the two further games of cricket and still reported to Associate Professor Khalid that he had stopped playing because of back pain. I have reached the conclusion that the plaintiff did stop playing cricket because of his low back injury and not because of his shoulder or cervicothoracic spine. Because I have reached that conclusion, I do not accept that it was accurate for the plaintiff to tell Mr Dooley on 9 February 2021 that he had stopped playing cricket because of shoulder pain. I have concluded any inability of the plaintiff to play cricket is not an impairment consequence of the injuries to his shoulder or cervicothoracic spine.[18]
[16]See above at [16].
[17]Reasons, [229]–[232].
[18]Ibid [233].
The judge recorded the respondent’s submission that the applicant’s lumbar spine injury ‘looms large’ in the overall picture of the applicant’s activities of daily living in comparison to the effect of the injuries he sustained in the transport accident. She found that this was a reasonable submission, given the incidents of lumbar spine pain experienced by the applicant both before and after the transport accident.[19] She went on to find that the applicant ’s consequences in relation to his activities of daily living were ‘minimal at best’.[20] She also did not consider the applicant’s current employment status to be a relevant impairment consequence.[21]
[19]Ibid [238].
[20]Ibid [240].
[21]Ibid [250].
By way of summary, the judge found that the applicant suffered constant, but varying, intensity of pain in his left shoulder every day, and that the more he used his left shoulder, the more it hurt. Consequently, he avoided using his left arm whenever he could, and continued to have a reduced range of motion in his left shoulder, particularly when raising his arm above shoulder height. The judge accepted that his disability was likely to continue long into the future.[22] She also accepted he could not mow the lawn and had engaged a gardener.[23]
[22]Ibid [256].
[23]Ibid [258].
In relation to the cervical spine, the judge found that there was some pain present over the left side of the applicant’s neck, although it was not as severe as the applicant’s left shoulder pain. The judge noted that, as with his left shoulder, the applicant tried to limit his pain medication, and took over-the-counter medication when the pain was bad, but otherwise treated his injuries with physiotherapy.[24]
[24]Ibid [259].
The judge noted that there were ‘other impairment consequences’ which the applicant had not sought to attribute specifically to either the impairment of his left shoulder or his cervical spine. These included that the applicant was unable to visit his father; that the physical relationship between the applicant and his wife had been affected; that he was more anxious and stressed; that he had a diminished ability to run and play sport; and that his sleep had been poorly affected.[25]
[25]Ibid [260].
Ultimately, the judge considered that neither the consequences of the left shoulder nor the cervical spine injury (considered separately) were ‘significant or marked’ and ‘at least very considerable’ such as to constitute a ‘serious injury’.[26]
[26]Ibid [261]–[263]; and see Humphries v Poljak [1992] 2 VR 129, 138 (Crockett and Southwell JJ).
Scope of application
The applicant sought leave to appeal this decision on the following three proposed grounds:
(1)The primary judge erred by failing to provide reasons that disclosed an intelligible part of reasoning for her decision.
(2)The primary judge erred in law in that she should have concluded that the applicant’s inability to play cricket was attributable to the injury to his left shoulder or neck and, having so found, the applicant’s left shoulder injury or neck injury satisfied the statutory test of serious injury.
(3)The primary judge erred in law in that she failed to consider all of the evidence and that, having found that the applicant was an honest witness, consistent with the applicant’s evidence that he remained in constant pain in his left shoulder and in his neck that the consequences of the injury to the applicant’s left shoulder or the injury to the applicant’s neck were sufficient to satisfy the statutory test of serious injury.
However, notwithstanding the potential width of these grounds, senior counsel for the applicant ultimately accepted that, in order to succeed, he needed to show that the judge should have concluded that the injuries to his left shoulder or neck caused the applicant to give up cricket. He also expressly abandoned that part of his case which challenged the judge’s finding that the consequences for activities of daily living were ‘minimal at best’.[27]
[27]At [30]–[36] of the Amended Written Case for the Applicant, dated 31 March 2022.
Given that the applicant was working full-time, taking no prescription medicine, and had ably appeared to adjust his life, the concessions appear to have been well made and helpfully narrowed the scope of the application. In the result, there were only two issues for the Court, being whether the cricket finding was made in error[28] and/or without adequate reasons.[29]
[28]See proposed grounds 2 and 3.
[29]See proposed ground 1.
Whether failure to provide adequate reasons
The applicant submitted that the reasons of the primary judge failed to expose her path of reasoning, and explain, or explain adequately, why it is that she rejected the applicant’s evidence that pain in his back had not stopped him playing cricket.
In oral submissions counsel focused on the judge’s reasons at para 233. In particular, he submitted that the judge did not adequately explain why she rejected the applicant’s explanation about the history recorded by Associate Professor Khalid (which was that he had played ‘two further games’ after seeing the doctor).
The written submissions also contained two particular complaints. First, the applicant submitted that there was no clear path of reasoning through the tension between the judge’s general finding that the applicant was a witness of truth (at paras 5 and 174) and the rejection of his denial that he stopped playing cricket because of back pain (at para 233). Secondly, the judge did not adequately address or provide a clear path of reasoning as to how she accepted the submission that the applicant’s lumbar spine injury ‘looms large’ in the overall picture of the applicant’s activities of daily living (at para 238), whilst simultaneously finding that residual low back pain did not appear to functionally impact the applicant’s daily life (at para 174).
Analysis
In Hunter v Transport Accident Commission[30], Nettle JA identified the fundamental requirements necessary for the provision of adequate reasons in an application under s 93(4)(d) of the Act:
When a judge decides an application under s 93(4)(d) of the Act the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.[31]
[30](2005) 43 MVR 130; [2005] VSCA 1 (‘Hunter’).
[31]Ibid 136–7 [21] (Nettle JA, with Batt JA agreeing at [3] and Vincent JA agreeing at [4]) (citations omitted).
The judge did not fail to give reasons as to why she rejected the applicant’s evidence that he did not stop playing cricket because of his back injury. To the contrary, the judge carefully and comprehensively set out the two categories of evidence which supported the cricket finding: first, the evidence about his history of back pain leading up to the time he ceased playing cricket; secondly, the admissions recorded by the doctors (Associate Professor Khalid and Mr Gardiner) that he stopped playing cricket because of his back pain.
In relation to the first category, the judge accurately set out the applicant’s cross-examination on the clinical records, which included reference to a lumbar disc prolapse in 2016, and, critically, referred to a number of attendances and treatment for low back pain proximate in time to when the applicant ceased playing cricket.
In relation to the second category, the judge also detailed the histories given to Associate Professor Khalid and Mr Gardiner which recorded the applicant’s statements to the doctors that he had given up cricket because of back pain. She further recorded the explanation he sought to provide about those histories. It is true that she rejected his explanation about the history recorded by Associate Professor Khalid (that he played two further games after seeing him, so did not stop playing because of his back). However, she also provided an explanation for doing so, being that, consistent with the contemporaneous record of Associate Professor Khalid, the applicant had already played the further two games and still reported that he had stopped playing cricket because of back pain.
The judge has therefore clearly detailed why she rejected the applicant’s evidence, consistent with Hunter, and there is nothing more the judge could reasonably be expected to say. The applicant was also unable to identify what more should have been provided.
Turning then to the alleged ‘inconsistences’, there may be some doubt as to whether inconsistencies of themselves constitute a failure to provide reasons. In any event, they may be dealt with briefly.
First, there is no inconsistency between the judge’s general acceptance of the applicant as a witness of credit and her rejection of his evidence about why he gave up cricket. Put shortly, the making of a general credit finding does not mean that a judge must accept each and every aspect of a witness’s evidence, regardless of other evidence, particularly where there is other objective evidence or admissions against interest. In this case, the two alleged inconsistent findings were also concerned with different aspects of the applicant’s testimony. The general credit finding was concerned with whether the applicant ‘deliberately’ sought to minimise his pre-existing condition ie whether he was dishonest. This may be contrasted with whether his evidence was always reliable ie whether he could really remember the detail of the medical attendances around the time he stopped playing cricket (including whether he could remember the detail of the timing of a consultation in relation to when he played two games of cricket).
Secondly, the finding that the lumbar spine ‘looms large’ in the overall picture of the applicant’s activities of daily living (at para 238) also does not give rise to any inconsistency with the finding at para 174. The finding at para 174 was that ‘at the time of the transport accident’ the applicant’s pre-existing injuries did not appear to have been functionally impacting upon his daily life. It was hence concerned with the applicant’s general condition (not just his back) before the accident. This may be compared with the finding at para 238 where the focus is clearly on the applicant’s condition in respect of ‘activities of daily living’ after the accident.
The complaint about lack of reasons is without merit. The judge’s reasons were comprehensive, intelligible and clearly exposed the path of reasoning.
Whether cricket finding made in error[32]
[32]Proposed ground 2 alleges that the judge erred ‘in law’. However, given that the present appeal is conducted pursuant to s 74(1) of the County Court Act 1958 and is an appeal ‘by way of rehearing’ it is unnecessary to demonstrate that the judge ‘erred in law’.
The applicant submitted that the judge erred in making the cricket finding.
In so submitting, the applicant referred to various parts of the evidence which were said to be contrary to this finding, including: that, under cross-examination, the applicant denied the suggestion that he ceased playing cricket because of his back; the applicant’s evidence that his back pain was only ‘intermittent’; and the evidence of the applicant’s wife and Mr Van der Nest.
He submitted that the judge appeared to have concluded that the applicant ceased playing cricket because of his back pain solely on the basis of the report of Associate Professor Khalid in early March 2020. She was thereby said to have ‘ignored’ his denial of the suggestion that he ceased playing cricket because of back pain.
The applicant submitted that, on the basis of the judge’s finding that he was a credible witness, the judge should have concluded that the inability to play cricket was a result of the injuries to his left shoulder or neck.
Analysis
Neither the affidavit of Mr Van der Nest, nor that of the applicant’s wife, contained any express statement that the applicant stopped playing cricket because of his left shoulder or neck, rather than his back. The judge’s finding is contrary to the applicant’s evidence, but as explained above, the judge was not bound to accept the applicant’s evidence on every issue, even if he was found to be a generally honest witness. This is particularly so in circumstances where there was other objective evidence which weighed against his account.
We also do not accept that the judge rejected the applicant’s evidence solely by reference to the report of Associate Professor Khalid. Rather, as we have also identified, the judge carefully set out and relied on two categories of evidence: first, the ample objective evidence that the applicant had suffered serious back problems, including leading up to his last season of cricket; secondly, the reports of both Associate Professor Khalid and Mr Gardiner which recorded contemporaneous statements of the applicant that it was his back injury which caused him to give up cricket. As we explain below, it was well open to the judge to accept these clear admissions against interest in this case.
It is also not the case that the judge ‘ignored’ the applicant’s denials under cross-examination. To the contrary, the judge carefully recorded the applicant’s evidence and said that she had ‘considered the [applicant’s] answers in cross-examination’.
The judge also provided a reason for rejecting the applicant’s explanation for the admission recorded by Associate Professor Khalid. The judge’s approach was well founded given: the objective records of continuing back problems; that Associate Professor Khalid’s report expressly referred to the fact that the applicant had already played ‘two games’; and the absence of any other objective evidence that the applicant did actually play two further games after seeing Associate Professor Khalid.
We have not lost sight of the fact that a Court needs to be careful in accepting apparent statements of fact made by patients (or plaintiffs in a medico-legal setting) and recorded by medical practitioners and contained in their notes or reports. At times what might appear to be a statement of fact may simply be an observation or impression of the doctor. Or, in some cases, may simply be an incorrect record of what was said during a busy consultation.
Usually, the recording of such statements by the doctor has one purpose: to assist in forming a diagnosis of the patient (or plaintiff’s) condition. They are not intended to form part of the forensic arsenal of the cross-examiner. Caution must be exercised in the use of such material, particularly when the fate of the application or claim may, at least in part, turn upon the accuracy of the asserted admission against interest. This is all the more so when in most serious injury applications and personal injury trials the relevant medical practitioner is not called to give evidence. However, in this case it is relatively clear from the terms of both reports that the doctors were recording statements made by the applicant to them, thus providing a proper basis for cross-examination directed towards establishing an admission against interest and a finding based (at least in part) upon such an admission.
In reality, the judge only needed to conclude that she was not satisfied that the applicant stopped playing cricket because of his left shoulder injury or neck injury. That is, she did not need to expressly find that he stopped playing cricket because of his low back injury. Nevertheless, given the ample evidence about the applicant’s back issues, we consider that the cricket finding was not only open, but undoubtedly correct. More particularly, the applicant’s submissions that the judge erred in making the cricket finding must be rejected.
Conclusion
Leave to appeal will be refused.
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