Nominal Defendant v Clancy - [2007] NSWCA 349

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Nominal Defendant v Clancy [2007] NSWCA 349
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23 February 2007

JUDGMENT DATE:
7 December 2007

JUDGMENT OF: Santow JA at 1; McColl JA at 68; Campbell JA at 282

DECISION: 1. Appeal dismissed. 2. Appellant to pay respondent’s costs.

CATCHWORDS: APPEAL — facts — interference with findings of fact — whether critical findings of fact inconsistent with incontrovertible fact or uncontested testimony — whether the decision at trial glaringly improbable or contrary to compelling inferences — whether trial judge adequately considered contemporaneous documents — - NEGLIGENCE — damage — causation — shifting evidentiary burden — whether appellant demonstrated its case to a prima facie level so as to require respondent to explain or contradict that case — - EVIDENCE — witnesses — failure to call witness — whether witness one expected to be called by one party rather than the other — adverse inferences — - EVIDENCE — expert evidence — function of appellate court — dispute between experts — whether trial judge entitled to reject expert witness whose qualifications not put in issue — where expert issue in dispute involved differences between the expert witnesses capable of being resolved rationally by examination and analysis — - JUDGMENT — adequacy of reasons — whether trial judge adequately considered appellant’s case —whether trial judge exposed his reasons for resolving a point critical to the contest between the parties — whether trial judge did justice to issues posed by appellant’s case.

LEGISLATION CITED: Workers Compensation Act 1987

CASES CITED: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Ahmedi v Ahmedi (1991) 23 NSWLR 288
De Groot v The Nominal Defendant [2005] NSWCA 61
Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472
Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373
Fox v Percy [2003] HCA 22; (2004) 214 CLR 118
Ibrahim v Pham [2007] NSWCA 215
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Moylan v Nutrasweet Co [2000] NSWCA 337
North Sydney Council v Ligon (1995) 87 LGERA 435
Payne v Parker [1976] 1 NSWLR 191
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121
Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308
Shorey v PT Limited [2003] HCA 27; (2003) 77 ALJR 1104
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State of New South Wales v Burton [2006] NSWCA 12
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306
Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127
Wilsher v Essex Area Health Authority [1988] AC 1074
Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156

PARTIES: Nominal Defendant - Appellant
Vashti Clancy - Respondent

FILE NUMBER(S): CA 40115 of 2006

COUNSEL: Mr R R Bartlett SC with Mr W M Fitzsimmons - Appellant
Mr B M J Toomey QC with Mr F Tuscano - Respondent

SOLICITORS: David McLachlin, Solicitor - Appellant
McLaughlin & Riordan - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 13828 of 2001

LOWER COURT JUDICIAL OFFICER: Walmsley DCJ

LOWER COURT DATE OF DECISION: 16 February 2006

CA 40115/06
DC 13828/01

SANTOW JA
McCOLL JA
CAMPBELL JA
Friday 7 December 2007

NOMINAL DEFENDANT v CLANCY

The respondent was injured in a rear end motor vehicle collision on 16 February 1999. There was no dispute at trial that as a result of the accident she suffered an aggravation injury to her right thumb and a pre-existing wrist condition.

The substantial area of dispute at trial was whether the motor vehicle accident either precipitated a condition known as severe multi-directional glenohumeral instability (“MDI”) in the respondent’s right shoulder or, at least, severely exacerbated a pre-existing minor shoulder condition. The primary judge found on the balance of probabilities that the accident did lead to an aggravation and a worsening of the respondent’s pre-accident right shoulder problemin the respondent’s favour and awarded her the respondent $634,522.64. The appellant did not challenge the quantum of damages. However, it complained that his Honour erred in finding that the respondent had established that the motor vehicle accident caused her to suffer MDI in her right shoulder or at least severely exacerbated a pre-existing minor shoulder condition and, also asserted he failed to consider its case, alternatively failed to give adequate reasons for rejecting it.

The issue of causation turned substantially on whether the respondent had complained of right shoulder pain, or increased right shoulder pain, in the first few months after the accident and whether her right shoulder had subluxed or dislocated within six months of the accident. The respondent’s case, disputed by the appellant but accepted by the trial judge, was that she had so complained to her chiropractor that her right wrist continued to be the main source of pain and that she had been suffering right shoulder pain from bursitis immediately before the accident.

The appellant’s case was that at the time of the accident the respondent had a congenital condition (unknown to her at the time) which resulted in ligament laxity and that her ultimate condition of MDI was not usually brought on by a single trauma but by people performing some superimposed, usually repetitive, activity either at work or a sport such as swimming. The respondent had engaged in marathon swimming and had trained four days a week but had ceased some six months prior to the accident because of her shoulder condition. Immediately prior to the accident the respondent had been receiving treatment for right shoulder problems, the symptoms of which had become apparent in mid-1998. The pre-accident onset of her right shoulder symptoms coincided with her commencing work in a pathology practice. After the accident, because of her lower arm injury, the respondent did not resume work until August 1999 and then only on limited hours. Having been off work the pre-accident her right shoulder problem abated to a degree, but was exacerbated by her return to work so that by late 1999 her right shoulder started to subluxed and dislocated, leading to her general practitioner referring her for specialist treatment. The respondent’s case, accepted at trial, but disputed by the appellant was that her right shoulder subluxed and dislocated around May 1999, that is within six months of the accident. The appellant submitted that its theory of the case was consistent with the contemporaneous notes and reports made by those who treated the respondent and with the information the respondent provided in her claim forms, statements and medico legal reports both in her workers compensation and motor accidents claim. None of those documents recorded the respondent complaining that she had suffered an injury to her right shoulder as a result of the accident. According to the written medical evidence, the first time she attributed her shoulder problems to the accident was in March 2000

A chiropractor recorded a post-accident complaint by the respondent about her right shoulder in a letter. His clinical notes were arguably inconsistent with the letter. The primary judge concluded from the letter that the respondent had suffered increased pain in her right shoulder after the accident. In mid-1999 his clinical notes recorded a complaint of pain in the shoulder by the respondent and the words “previous dislocation”. The notes were equivocal about which shoulder the respondent had complained about; the letter “L” in the note about this complaint had either been written over with the letter “R” or vice versa. The primary judge concluded from this note that the respondent’s right shoulder subluxed in June 1999. The chiropractor was not called.

The respondent argued that after the accident her right shoulder condition was significantly different, in that she suffered subluxation, or dislocation, within three months or thereabouts of the accident, as recorded in the chiropractor’s notes, an event her specialist regarded as significant in determining the aetiology of her condition. She said the incident in which her right shoulder had first subluxed was terrifying and that she had consulted her general practitioner the same day and been referred to a specialist. The letter referring the respondent to the specialist was dated 6 January 2000. The respondent tendered the general practitioner’s records which first referred to the respondent reporting a right shoulder subluxation or dislocation in March 2000. Neither party called the general practitioners.

Cross-examination of the respondent exposed inconsistencies in her evidence about when she first complained about her right shoulder after the accident. The primary judge concluded the respondent’s credit was not of vital importance to his findings and that she was mistaken about when her shoulder pain first became significant and when its increase first became significant to her.

Held, dismissing the appeal, per Santow JA (Campbell JA agreeing):

1. The appellant did not demonstrate sufficient grounds for disturbing the trial judge’s conclusions, taking into account the constraints on appellate intervention in disturbing credibility based findings, which these were. None of the critical findings of fact were inconsistent with “incontrovertible fact” or uncontested testimony or such as to render the decision at trial to be “glaringly improbable” or “contrary to compelling inferences in the case”: [3], [7].

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 applied

2. The trial judge’s finding on causation was supported by the principle in Watts v Rake (1960) 108 CLR 158. The appellant failed to satisfy its evidentiary onus of disentangling the accident from other potential causes of the respondent’s right shoulder condition, so as to exclude altogether the operation of the accident as a contributory cause: [8].

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 applied

3. While the trial judge’s findings on the critical issues were contestable, there was evidence available to provide a basis for each of them. The trial judge was entitled to prefer the respondent’s expert witness’s evidence: [22].

Ahmedi v Ahmedi (1991) 23 NSWLR 288 applied

4. The appellant had not demonstrated that the trial judge had “too fragile a base” for his causation conclusion or that the cumulative effect of the evidence makes that conclusion glaringly improbable: [6], [66].

State Rail Authority of New South Wales v Earthline Construction Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 referred to

5. The trial judge dealt comprehensively with the critical issues in a carefully reasoned judgment: [20].

6. The respondent gave a plausible explanation for failing to complain that she had increased pain in the right shoulder after the accident and that her right shoulder had been injured in the accident which the trial judge was entitled to accept: [28], [42], [43].

7. It was open to the trial judge to accept the chiropractor’s report in February 1999 to an orthopaedic surgeon as supporting the respondent’s case that she suffered increased right shoulder pain after the accident. A detailed contemporaneous report should not be treated as inaccurate because it does not find its counterpart in the practitioner’s clinical notes given their function and the circumstances in which they were made and the fact that there was no reason for the chiropractor to invent reported symptoms of right shoulder pain, it being unethical to do this: [54], [55], [57].

8. The respondent established that the accident had some injurious effect on the respondent’s condition so as to invoke the presumption of fact in favour of the respondent under the principle in Watts v Rake; the appellant needed to demonstrate its case to a prima facie level before the respondent was required to explain or contradict something; the matters advanced by the appellant to cast doubt on whether subluxation first occurred in June 1999 did not constitute facts “requiring an answer”.

Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 referred to

9. The appellant did not establish its alternative explanations of the respondent’s condition to aat least a prima facie level rendering it incumbent on the trial judge to give reasons why he rejected as explanations for the respondent’s right shoulder injury the respondent’s marathon swimming, or her return to work in August 1999: [65]. These were not matters, nor the matters of challenge to the chiropractor’s evidence, which would point decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses.

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 146 referred to

Per McColl JA (dissenting)

10. The Court was obliged to conduct a real review of the trial and of the judge's reasons within the constraints marked out by the nature of the appellate process and could draw inferences different to those drawn by the trial judge.

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449; Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308 applied

Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 discussed

11. The trial judge did not base his findings upon the respondent’s credibility and the Court was not, therefore, constrained by limitations on appellate review of credibility based findings.

Fox v Percy

12. The primary judge erred in concluding that the respondent had established the factual substratum accepted by the experts as fundamental to the conclusion that the motor vehicle accident was a cause of the MDI: [228].

13. There was a substantial body of evidence demonstrating that the respondent was suffering from disabling right shoulder problems at the time of the accident, a problem whose onset coincided with the commencement of that employment: [150].

14. The contemporaneous records supported the view that the respondent did not suffer increased right shoulder pain after the accident and that her right shoulder first subluxed towards the end of 1999. A version of subluxation followed by immediate referral accorded with the respondent and her mother’s account of the sequence of events, albeit not with their timing: [173], [176].

15. The anomalies between the chiropractor’s notes which made no reference to the respondent complaining of her right shoulder as a consequence of the motor vehicle accident and the letter the primary judge relied upon were such as to lead to doubt about the accuracy of the letter. The notes were consistent with the respondent’s complaints after the accident about her wrist having been injured. The chiropractor’s June 1999 note referred to the respondent’s left shoulder: [195], [199].

16. The absence of a record in the general practitioner’s records consistent with the respondent’s account of when her shoulder first subluxed, told strongly against the respondent’s case on this point: [203].

17. The respondent’s failure to call her general practitioner to confirm, if he could, her account of the consultation about her first shoulder subluxation meant that her evidence could be more readily rejected, and the inferences for which she contended “treated with greater reserve”. [211]

Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121; Ibrahim v Pham [2007] NSWCA 215; Payne v Parker [1976] 1 NSWLR 191; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 applied

18. The picture presented of the respondent’s pre-existing right shoulder condition at the end of the cross-examination differed markedly from that presented in her evidence in chief, in a manner which would normally be regarded as casting grave doubts upon a witness’ credibility: [150].

The expert evidence issue

19. The trial judge erred in preferring the respondent’s expert to the appellant’s. The experts were not radically at issue about complex technical questions within their own field. Rather, their disagreement was based on their different understanding of the aetiology of the respondent’s condition.

Shorey v PT Ltd [2003] HCA 27; (2003) 77 ALJR 1104; Ahmedi v Ahmedi (1991) 23 NSWLR 288; Wilsher v Essex Area Health Authority [1988] AC 1074 referred to

20. The expert issue in dispute involved differences between the expert witnesses capable of being resolved rationally by examination and analysis.

Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127 applied

De Groot v The Nominal Defendant

21. The evidence did not support the opinion upon which the respondent founded her case. [260]

The reasons issue

22. The trial judge was obliged to expose his reasons for resolving a point critical to the contest between the parties and do justice to the issues posed by the appellant’s case.

North Sydney Council v Ligon

Soulemezis v Dudley

Moylan v Nutrasweet Co

Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services

23. Where there is a mass of documentary material arguably supporting the appellant’s claims, that material must be considered in the judge's reasons in a satisfactory way.

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq)

24. The primary judge did not adequately consider the appellant’s case:

(a) He did not analyse the respondent’s pre-accident right shoulder condition against the appellant’s contention that it was her return to work in August 1999 which precipitated her right shoulder condition. Nor did his Honour entertain the possibility that post-accident references to bursitis or right shoulder pain were consistent with the respondent’s pre-accident condition rather than caused or affected by the accident. Rather, his Honour appeared to have treated any post-accident reference to the respondent’s right shoulder as supporting her case that the accident was a cause of her MDI: [152];

(b) He did not consider of the appellant’s case that the respondent’s history was arguably consistent with her MDI being caused by her lengthy swimming history, as well as her work duties: [261].

(2) Appellant to pay respondent’s costs.

*********

CA 40115/06
DC 13828/01

SANTOW JA
McCOLL JA
CAMPBELL JA

Friday 7 December 2007

NOMINAL DEFENDANT v CLANCY

Judgment

1 SANTOW JA:

OVERVIEW

2 McColl JA, whose judgment in this appeal, with its extensive review of the evidence, I have had the advantage of reading, would uphold the appeal. I respectfully differ and would disallow the appeal.

3 In my reasons which follow, I conclude that there are not sufficient grounds for disturbing the trial judge’s conclusions, taking into account the constraints on appellate intervention in disturbing credibility based findings. Important in my reasons is the evidentiary onus on the defendant to disentangle the accident from the plaintiff’s pre-existing condition, if the accident is to be eliminated as even a contributory cause of her injury or its aggravation. If in testing the trial judge’s inferences against the evidence, that process produces competing inferences which are equally plausible to those made by the trial judge, that will not be sufficient for the appellant to succeed, unless that evidentiary onus is discharged. I do not consider it was discharged in the present case for reasons I explain.

ELABORATION

4 The ultimate finding on causation, expressed by the trial judge to be on the balance of probabilities, was that the motor vehicle accident did lead to an aggravation and a worsening of the plaintiff’s pre-accident right shoulder problem. The Nominal Defendant was held liable for such damage as flowed from that.

5 On appeal, the Nominal Defendant challenges only the finding of causation; damage is not otherwise in issue.

6 The present was not a case, in my view, where the trial judge had “too fragile a base” to support his Honour’s causation finding; compare State Rail Authority of New South Wales v Earthline Construction Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 at [63] per Gaudron, Gummow and Hayne JJ. That finding, insofar as credibility based, relied on a strongly favourable credibility finding for the respondent’s mother as well as supporting evidence. While in the case of the competing experts’ demeanour may be of a lesser order of importance, it did enter into the trial judge’s preference for the evidence of the respondent’s expert Dr Sonnabend over the appellant’s expert Dr Hitchen. The trial judge also relied on other considerations in preferring Dr Sonnabend’s evidence.

7 Some of the findings of primary fact made by the trial judge were contestable, or open to differing interpretation. I refer in particular to the respondent’s reported symptoms in her right shoulder, their timing, character and medical interpretation and the degree to which they were reported by the respondent. The same applies to episodes of subluxation or dislocation of the respondent’s right shoulder. However, as I explain, none of the critical findings of fact were inconsistent with “incontrovertible fact” or such as to render the decision at trial to be “glaringly improbable” or “contrary to compelling inferences in the case” (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29]).

8 The trial judge’s finding on causation, is supported by the well-known principle in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158. In particular it was for the appellant to satisfy the evidentiary onus upon it of disentangling the accident from other potential causes of the respondent’s condition of her right shoulder, so as to exclude altogether the operation of the accident as a contributory cause (Watts v Rake (supra) per Dixon CJ at 160).

9 On appeal, the appellant contends that the trial judge erred in concluding that the respondent had established that the motor vehicle accident had caused her to suffer the particular injury of which she complained. That injury was a “severe multi-directional glenohumeral instability (“MDI”) in her right shoulder whereby the shoulder subluxated (slipped out and back again) or dislocated (slipped all the way out without coming back).

10 An essential part of that challenge was the appellant’s contention on appeal that the trial judge failed to consider the appellant’s case. Alternatively the appellant contended that the trial judge failed to give adequate reasons for rejecting that case.

11 Essentially the appellant’s case at trial was that the respondent’s MDI was not caused by the accident itself. Rather it was said to be the inevitable consequence of a condition which pre-existed the accident. The condition from which the respondent suffered, diagnosed only some three months after the accident was, as the trial judge explained at [42], “a rare genetic condition Methylene Tehrahydrofolate Reductase Deficiency”. That was said to be a condition which “can lead to ligamentous laxity”, and which in turn can lead to episodes of subluxation or dislocation (at [42]).

ANALYSIS

12 The respondent’s medical expert Dr Sonnabend in March 2000 diagnosed the respondent as suffering MDI in her right shoulder. However, in Dr Sonnabend’s opinion, the motor vehicle accident either precipitated the MDI or, at least, severely exacerbated a pre-existing minor shoulder condition. The critical part of Dr Sonnabend’s first medico-legal report of 17 November 2000 is quoted by the trial judge at [77]-[78], preceded by reference to the supporting evidence of Dr Bencsik (at [75]-[76]):

‘Ms Clancy has persisting pain in her right wrist with activity or when driving for two hours, as occurred yesterday. She is unable to do up her bra, wash or brush her hair because of stiffness in her right upper limb. She has gross restriction of rotation of her shoulder, which accentuates the previous stiffness of her right elbow enostosis and post traumatic stiffness of her right wrist. However, the right shoulder feels stable. Her wrist is painful. Ms Clancy avoids applying any force, although she has to try to compensate for her increasing right shoulder and her previous right elbow stiffness. The pain in her wrist appears to be worsening but she agrees that her right shoulder symptoms have been gradually improving. Mrs Clancy continues to attend for physiotherapy to her right wrist and right shoulder and she carries out home exercises.’

‘Ms Clancy has a complex medical history which includes a genetic disorder...a proximal radioulnar synostosis of her right forearm following fracture at the age of eight and bilateral wrist reconstructions in 1998. Ms Clancy gave a history of having experienced some difficulty with her right shoulder since late 1998. In February 1999 she was involved in a motor vehicle accident as the driver of a vehicle. Following that accident Ms Clancy’s right shoulder problem was much exacerbated. When I first examined Ms Clancy in March 2000 she was complaining of constant severe pain in the front of the right shoulder and a sensation that the shoulder subluxed frequently with various precipitating movements, including external rotation and cross body adduction. She had not experienced sensations of instability prior to the motor vehicle accident.’

‘In the motor vehicle accident Mrs Clancy, had been the driver of a car which had stopped in traffic, with her right hand on the bottom of the steering wheel. The car was struck from behind and the right arm was forced under the steering wheel. Following the accident Mrs Clancy experienced markedly increased pain in the right shoulder and in about March 1999 became aware of clunking and dislocation of the joint. Mrs Clancy's diagnosis was that of severe multidirectional instability of the right shoulder. This condition occurs almost only in the presence of significant systematic ligamentous laxity which Mrs Clancy had related to her underlying metabolic condition. The motor vehicle accident of February 1999 appears to have precipitated the multidirectional instability or at least to have severely exacerbated a pre-existing minor shoulder condition. Following the motor vehicle accident Mrs Clancy's shoulder instability was so severe as to prevent her from undertaking virtually any significant right upper arm activity and required surgical intervention in the form of a capsular shift procedure.’

‘With regard to the relationship between Mrs Clancy's shoulder condition prior to the motor vehicle accident and her subsequent shoulder instability, it is difficult to provide an accurate retrospective assessment. Mrs Clancy did undergo an MRI study of her right shoulder on February 5, 1999, some eleven days before her motor vehicle accident. That study was reported as showing, ‘Local fluid collection in the subacromial bursa suggestive of bursitis’. Subacromial bursitis is generally not a primary diagnosis but rather a manifestation of some other pathology, either local or systemic. Mrs Clancy has no systemic inflammatory condition, and it seems very likely that the subacromial bursal fluid seen on MRI scan was the result of some local mechanical pathology. I believe the most likely explanation for this is that Mrs Clancy did suffer some minor glenohumeral instability related to her systemic ligamentous laxity, with secondary rotator cuff impingement, and subacromial bursitis prior to the motor vehicle accident. The prognosis for such a condition in the absence of major trauma is usually good. These conditions can generally be successfully treated with appropriate long term exercises. In Mrs Clancy's case, the trauma of the motor vehicle accident appears to have severely exacerbated this previously relatively minor condition, and to have brought on severe multidirectional instability requiring surgical intervention. I doubt whether any more accurate assessment can be made at this stage.’ ”

13 I need now to review the evidence, doing so to the extent necessary to ascertain whether, consistent with the permitted scope for appellate review and giving proper weight to the principle in Watts v Rake (and cases following in particular Purkess v Crittenden (1965) 114 CLR 164 at 171) there is any sufficient basis to disturb the decision on causation of the trial judge. In addressing the “lack of reasons” contention of the appellant, I do so mindful that not every rabbit needs to be chased down its burrow when it comes to giving reasons. As was said by Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 and 273-4, concurred in by McHugh JA at 279-281 and as followed in Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171, 182:

“In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion….

There is, I think, no formula the application of which in the instant case will indicate what, in that case, the judge must do. Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made ….

To require that a judge detail the way in which he has reasoned step by step to his conclusion is, in my opinion, to mistake the nature of the reasoning process … [the judge's] reasons in the particular case, may partake as much of intuition based on experience as on formal and deductive reasoning.

But there are limits to what he must do

Soulemezis

Yates

“… in determining whether justice was done and is seen to be done other interests and values, beside the giving of reasons, have to be considered. The limited nature of judicial resources and the cost of litigants and the general public in requiring reasons must also be weighed. For example, many questions concerning the admissibility of evidence may require nothing more than a ruling: in New South Wales common law judges have long held that they are not obliged to hear argument on the admissibility of every question of evidence let alone give reasons. It all depends on the importance of the point involved and its likely effect on the outcome of the case ….

Ex parte Powter; Re Powter

But it is necessary that the essential ground or grounds upon which the decision rests should be articulated

14 I respectfully agree with McColl JA’s statement of principle that the trial judge is nonetheless obliged to expose his reasons for resolving a point critical to the contest between the parties; see for example Soulemezis (at 270) per Mahoney JA, and (at 280) per McHugh JA. The question here is whether the trial judge, not being obliged to spell out every detail of his process of reasoning (Yates Property Corporation (supra) at 171, 182) did so sufficiently; did the trial judge sufficiently “enter into” the critical issues of this case?

15 This requirement must however take account of the presumption of fact in the plaintiff’s (respondent’s) favour, in disentangling the accident-related injury from pre-existing condition. It is not enough for the defendant (appellant) merely to advance a hypothesis or theory of the case, as to the cause of the post-accident condition (MDI). The appellant’s evidentiary onus is not discharged unless it demonstrates, at least to a prima facie level, that the accident was not even a contributory cause of the injury or its aggravation. If the defendant fails to do this the judge is not required to enter into the considerations posed by that hypothesis.

16 The appellant’s hypothesis or theory of the case is summarised by McColl JA. I gratefully adopt that summary from her Honour’s judgment (omitting paragraph numbers):

The theory of the appellant’s case was that at the time of the accident the respondent had a congenital condition (unknown to her at the time) which results in ligament laxity. Her previous injuries and subsequent operations (two in early 1998) to her right lower arm had resulted in limited movement, thereby causing her to tend to turn her right shoulder more than otherwise. Her ultimate condition of MDI of the right shoulder, as explained by Dr Sonnabend, is classified as an atraumatic condition, that is not usually brought by a single trauma but by people performing some superimposed, usually repetitive, activity either at work or a sport such as swimming. The respondent had engaged in marathon swimming and had trained four days a week. She started work at Hanley Moir in July 1998 on a part-time basis, proceeding to full time in October 1998. Her job entailed her performing mainly the same tasks of taking blood. This resulted in the respondent having considerable problems in her right shoulder to the extent that the day before the accident she had significant pain there and could hardly move it. She did not suffer any injury to her right shoulder in the motor vehicle accident, the trauma being slight (resulting in no damage to her vehicle) but did aggravate her previously injured right lower arm by reason of the position of her hand on the steering wheel.

Because of her lower arm injury the respondent did not resume work until August 1999 and then only on limited hours. Having been off work the right shoulder problem, which existed prior to the accident, abated to a degree. However when she resumed her pre-injury work and increased her duties this caused further problems to her right shoulder so that by the start of November 1999 she was back to where she was the day before the accident. Her shoulder, thereafter, started to sublux and dislocate at the end of November or at the commencement of December 1999 leading to her general practitioner referring her in early January 2000 to Dr Sonnabend. She first saw Dr Sonnabend in early March 2000.

17 I agree that the critical issues are those identified by McColl JA, quoted below:

“The analysis is undertaken against what the parties accepted were the critical issues: the condition of the respondent’s right shoulder before the accident, whether she complained of increased right shoulder pain in the first few months after the accident and when her right shoulder first subluxed.”

18 I agree that the critical finding of primary fact, was the trial judge’s acceptance of the respondent’s contention that she had continuing and worse shoulder pain after the accident, a finding challenged in this appeal.

19 However, the finding that shoulder dislocations occurred within the first six months, though undoubtedly made (see Judgment [102(s)] and elsewhere), must be read with Dr Sonnabend’s oral evidence, given in cross-examination. There he was asked about the significance of when precisely the respondent’s right shoulder became markedly symptomatic (subluxing or dislocating) in terms of causal connection with the accident. Dr Sonnabend, whose evidence the trial judge preferred overall, explained that a cut-off point of six months was an arbitrary figure: “more than six months would make you wonder whether it was related, but that’s an arbitrary thing” (see Black, 315N). Dr Sonnabend there puts the six months in perspective by emphasising that what was significant was simply whether there was, at some point of time, an alteration in symptoms before, as compared to after, the accident:

20 Turning to the critical issues, identified above, the trial judge dealt comprehensively with each of these in a carefully reasoned judgment. That is apparent when the trial judge (at [102]) gives a summation of his reasons, developed elsewhere in the judgment, for concluding that the accident did lead to an aggravation and a worsening of the plaintiff’s pre-accident right shoulder problem. I quote that summation below:

(a) The plaintiff had a genetic disease which pre-disposed her to ligamentous laxity or a laxness in the elasticity of her ligaments.

21 There were these three issues identified as critical:

(b) the trial judge’s treatment of whether the respondent complained of increased right shoulder pain in the first few months after the accident; see summation at [102(j), (o), (p), (q), (r), (s), (w) and (x)]; and

(c) the trial judge’s treatment of when the respondent’s right shoulder first subluxed, held to be in the first six months after the accident; see summation at [102(k), (l) and (s)].

22 While the trial judge’s findings on these were contestable, there was in my view evidence available to provide a basis for each of them. Those findings rest inter alia on the trial judge’s preference, in part credibility based (and legitimately so (Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 299-300 per Clarke JA with whom Handley JA agree, Kirby P per contra), for Dr Sonnabend’s evidence over that of the appellant’s experts. This is explained by the trial judge at [91] to [93]:

“91. On 28 April 2005 Dr Hitchen, the defendant's main expert on the causation issue, reported to QBE. Dr Hitchen expressed the view there is no causal relationship. In brief, that is because of the condition of her right shoulder immediately before the accident suggesting that she continued to have shoulder pain and disabilities of the type referred to in the chiropractic reports right up until the time of the accident, and because he assumed that there was a long interval after the accident before there was any complaint of increased shoulder pain and before there was any dislocation.

92. Dr Sonnabend and Dr Hitchen were the only doctors cross-examined, and apart from what I have said about general practitioners, neither party was critical of the other for not cross-examining other doctors. That, I thought, was a very sensible approach considering that causation was the only issue.

93. Dr Sonnabend is a highly qualified orthopaedic surgeon, who, for over twenty years, has specialised in shoulder surgery. Dr Hitchen is also a highly qualified orthopaedic surgeon, who also has had extensive practice in the field of shoulder surgery. However I think it fair to say his experience is not as lengthy or as extensive as that of Professor Sonnabend. I observed both of them being subjected to lengthy cross-examinations. I thought at times Dr Hitchen was a little slow to concede matters which I would have expected him to concede, for example, the consequence to his views of his not referring to the pre-accident MRI scan in his report. I did not form that view about Dr Sonnabend however. I thought that when challenged, he made ready with concessions. However, by reason of his greater experience and because he is the treating surgeon, I prefer in any event and accept the views of Dr Sonnabend where they differ from those of Dr Hitchen. I consider his arguments logical and well reasoned. I reject the defendant's submission that Dr Sonnabend lost objectivity. I found him entirely objective.”

23 Though the trial judge did not in terms call in aid the principle in Watts v Rake it is so well-known and accepted as not to require express reference. Moreover his Honour does cite State of New South Wales v Burton [2006] NSWCA 12 on causation, where the dissenting judgment of Basten JA draws on the principles in Watts v Rake and Purkess v Crittenden. Basten JA was in dissent because the majority (Spigelman CJ with Hunt AJA agreeing) concluded that the case did not give rise to the evidentiary issue in Watts v Rake. The principle in Watts v Rake and cases following, provides important support for the trial judge’s conclusion. Were it the case that two inferences as to causation were equally open, one in favour of the respondent and the other the appellant, then the respondent must win, failing discharge of that evidentiary onus.

24 In the absence of incontrovertible evidence or uncontested testimony refuting the trial judge’s causation finding, the appellant’s principal complaint to succeed must essentially invoke the principles in Earthline Constructions. That is to say the trial judge must be shown to have failed to deal adequately, or at all, with a large body of contemporaneous documents shown to be inconsistent with the respondent’s case. The appellant’s contention was essentially that there was “too fragile a base” for the trial judge’s causation conclusion and that the cumulative effect of the evidence makes that conclusion glaringly improbable.

25 McColl JA summarises the further complaints of the appellant, which I quote below (omitting paragraph numbers) as well as the response in argument of Counsel for the respondent.

“… It also complains that the primary judge did not address the more probable cause of the appellant’s right shoulder pain, namely her return to the work activities which, the appellant contends, had been responsible for the onset of her symptoms prior to the motor vehicle accident. Next, the appellant complains that the primary judge did not address the fact that Dr Sonnabend’s opinion of the respondent’s pre-accident condition was based on an incorrect history of her right shoulder problems at the time of the accident. (ORANGE 25-26).

The appellant illustrated its submissions by reference to the primary judge’s resolution of the issue as to when the respondent’s right shoulder first subluxed. The respondent’s evidence at trial was that the first occasion when her shoulder dislocated was when she was travelling with her husband in a car. The car went over a bump in the road, her shoulder dislocated and she was so terrified she saw her general practitioner the same day. As against this, the appellant submitted that there was no record in the general practitioner’s notes of the respondent suffering any right shoulder dislocation until well into 2000.

Secondly, the respondent gave evidence that once her right shoulder had dislocated, dislocations occurred with increasing frequency. Again, the appellant relied upon the fact that that there was no record during 1999 in any medical practitioner’s notes produced at trial that the respondent’s right arm was dislocating frequently. The appellant complained that the primary judge had not demonstrated how he had resolved these inconsistencies.

Next, the appellant argued that the evidence supported the proposition that the respondent’s right shoulder first dislocated in December 1999 because it was at or around this time that the respondent obtained a referral from her general practitioner to Dr Sonnabend. A dislocation first occurring in December 1999 assisted the appellant’s case in two respects. The first was that both parties’ expert witnesses, Dr Sonnabend for the respondent and Dr Hitchen for the appellant, accepted that in order to link the respondent’s MDI to the accident it was necessary that she had suffered a right shoulder dislocation within six months after the accident. Secondly, a dislocation first occurring in December 1999 assisted the appellant’s case that her right shoulder dislocation was caused by her work at Hanly Moir.

Mr B T Toomey of Queen’s Counsel who appeared with Mr F Tuscano for the respondent on appeal, but not at trial, said there were five steps critical to the respondent’s case which the primary judge had been entitled to accept. They were:

(a) that the respondent’s pre-accident right shoulder condition did not involve any dislocation or subluxation;

(c) that the respondent’s pre-accident right shoulder condition could not have been expected, without more, to proceed to dislocation in the manner it did;

(d) that the mechanism of the wrist injury the respondent suffered in the motor vehicle accident could be expected to cause trauma to her right shoulder;

(e) there was an immediate increase in symptoms in the respondent’s right shoulder immediately after the accident.

Mr Toomey submitted that it was not necessary that the respondent demonstrate that the motor vehicle accident was the cause of her MDI. It was sufficient that it materially contributed to her MDI. He argued that the primary judge correctly identified the three questions for determination in relation to that issue as being whether the respondent had experienced an increase in pain following the motor vehicle accident, whether she continued to have pain following the motor vehicle accident and whether, in the months following the motor vehicle accident, she experienced episodes of subluxation developing into dislocation within six months of the motor vehicle accident. He submitted that the primary judge’s findings with respect to causation were based on his conclusions favourable to the respondent on each of those matters as well as his preference for the evidence of Professor Sonnabend where it differed from that of Dr Hitchen.

Mr Toomey argued that the primary judge was entitled to conclude from an analysis of the reports of Mr Eisman of 19 February and 22 February 1999 respectively that the respondent had complained to him of an increase in problems with her right shoulder on the days following the accident. He argued that the primary judge properly analysed (at [32] – [44]) the documents showing the respondent continued to have pain in her right shoulder in the period following the accident and made findings accordingly.

26 I turn now to deal in more detail with that “large body” of evidence, said to be inconsistent with the respondent’s case and otherwise said not to have been dealt with adequately by the trial judge. That review necessarily starts with credibility issues.

Credibility

27 While the trial judge regarded the respondent’s memory as defective, concluding that, understandably, with the passage of time she had forgotten incidents and sequences, his Honour rejected the appellant’s submission that she was dishonest (at [101]). McColl JA summarises how the trial judge dealt with her evidence:

“He appears to have reached that position despite acknowledging inconsistencies in her evidence both between her evidence in chief and cross-examination (see primary judgment at [96] – [98]) and the medical evidence because he found:

(a) the respondent was mistaken about when the pain first became significant and when its increase first became significant to her (at [99]);

(b) even though the respondent first attributed her shoulder problem to the accident in March 2000, much was happening in her life in the first half of 1999 and her wrist problem was overwhelmingly the main problem that year in preventing her return to work (at [100]);

(c) she was entitled to have assumed that the right shoulder pain she had after the accident was the same problem as before rather than having been caused by the accident (at [102(w)]).

28 I consider it not implausible that, as the trial judge accepted, the respondent herself would not have attributed her shoulder problems to the accident until Dr Sonnabend’s diagnosis in March 2000, for the reasons stated in summary in (b) and (c) above. The disentanglement of the effect of the accident from the respondent’s pre-existing condition involved a difficult judgment. It was a judgment which was medically complex and one in which experts themselves might well differ. The respondent moreover was a layperson struggling with severe wrist pain, she knew she had had pre-accident bursitis and was undergoing other severe strains in her life, culminating in her suicide attempt in June 1999. Both Dr Sonnabend, disagreeing with Dr Hitchen, and Dr Bencsik attributed the right shoulder pain to the accident, giving reasons. That conclusion is not to be discounted by Dr Sonnabend conceding, as he properly did in cross-examination, that shoulder instability may also frequently be the product of repetitive activity, such as long-distance swimming (see later). The trial judge recorded their concurring evidence as follows:

“68. The plaintiff saw Dr Sonnabend for the first time on 24 March 2000, about thirteen months post accident. Counsel for the defendant urged me to reject Dr Sonnabend’s views in so far as they supported the plaintiff on causation. In substance, the reason was he was not given a correct pre-accident history and he gave weight to incorrect post accident history. It is clear, however, that he had a considerable part of her pre-accident history. On 24 March 2000 he wrote this, inter alia:

‘Her complex medical history includes a genetic disorder, Methylene Tetrahydrofolate Reductase Deficiency, a proximal radioulnar synostosis of the right forearm (following fracture at age of eight), bilateral wrist reconstructions in 1998 (with residual ongoing right wrist pain), and a motor vehicle accident in February 1999 which exacerbated the right wrist problem. Ms Clancy's right shoulder problem began in late 1998 and was much exacerbated by the car accident, possibly because of a need to increase shoulder use to offset wrist immobility. Ms Clancy now experiences constant severe pain of the right shoulder. She uses Durogesic patches and has been treated by two pain clinics with little success. She feels that her shoulder subluxes frequently with various precipitating movements including external rotation and cross body adduction. On examination Ms Clancy's active shoulder movements are limited in all directions because of pain, but there is a full range of passive movement. Mrs Clancy has marked systemic ligamentous laxity and her shoulder is easily subluxed anteriorly, posteriorly and inferiorly. Plain radiographs today were unremarkable. My impression is that Ms Clancy's shoulder problem is due to severe multidirectional instability’.

69. He explored the right shoulder joint on 5 April 2000. A sinus developed and delayed healing.

‘Ms Clancy has a number of problems with her right upper limb. As a child she sustained what was probably a Monteggia fracture which led to a proximal radioulnar synostosis. This limited the pronation and supination of her right arm, and together with the pain of her wrist she was using her shoulder excessively for rotatory movements. This apparently led to subluxation and then episodes of actual dislocation of her right shoulder joint, such that she was referred to Professor David Sonnabend, who is a shoulder specialist’.

She had had some discomfort (bursitis) in the right shoulder before the accident, but had not experienced any dislocation’

‘Following an injection of Pethidine to relieve her pain on 7 July 2000, she had a fainting attack. In the fall she lacerated her chin which required suturing and sustained injuries to her left upper first, second and third teeth. The second and third teeth were broken to the point where they were extracted, and she was required to wear a temporary splint. However, at a later date Mrs Clancy will have titanium peg implants and a tooth replacement prosthesis.’

29 A favourable credibility finding concerning the respondent’s mother strongly entered into the trial judge’s acceptance of her supporting evidence as to when subluxation first occurred after the accident; Judgment at [61]-[67] quoted below:

“61. When did the first episode of dislocation or subluxation occur? The plaintiff’s mother gave evidence that in mid 1999 the plaintiff came to her at work, complaining for the first time of a shoulder dislocation. She remembered it well, she said, because it was just before her daughter’s suicide attempt. The defendant's counsel invited me to reject the plaintiff's mother's evidence as insufficiently reliable to use it in support of the plaintiff's case. However, I found the plaintiff’s mother an impressive, careful and considered witness. I accept her evidence as to the timing of when the plaintiff first complained to her of a right shoulder dislocation. The plaintiff said in chief she had had no left shoulder problems since the accident, and was not cross-examined on that evidence. Her mother’s recollection was that the plaintiff had not complained of left shoulder problems after the accident. She was not cross-examined on that evidence. I should add that this was elicited from the plaintiff’s mother by me at the conclusion of her evidence. But neither counsel, on invitation, wished to put any questions to her about it.

62. Dr Hitchen said in his evidence that although there were signs in the plaintiff’s left shoulder of ligamentous laxity, there was no multi-directional instability (MDI), and Dr Sonnabend agrees.

63 The suicide attempt was just before the note in the chiropractor's record of a left shoulder dislocation.

64. I think it unlikely that the plaintiff’s mother would have forgotten significant matters occurring at the time of her daughter’s suicide attempt. Although it was the plaintiff’s and her mother’s evidence that this incident occurred shortly before she was referred to Dr Sonnabend, and Dr Naim’s referral to him was dated 6 January 2000, there was evidence from each of them, which I accept, that initially an appointment was made for her to see another orthopaedic surgeon but she later learned of the identity of Dr Sonnabend, who a colleague of her mother recommended, so saw him instead. There is no record in the GP notes to which I was referred asking for or discussion of a referral to Dr Sonnabend, that is, before she saw Dr Sonnabend. There is in fact no entry in the records at all between 23 November 1999 and 3 March 2000. Yet I was told by counsel that those notes were a collection of notes from both of her general practitioners, Dr Bloom and Dr Nairn, and there is, of course, the 6 January 2000 letter to Dr Sonnabend. It is curious, as the defendant notes, that in a history to Dr Zicat, whom she saw in March 2000, the plaintiff said dislocations had occurred for a month. That seems to me an erroneous history either given or recorded. Given the plaintiff’s history to Dr Sonnabend later that month, taken with the note of a dislocation in June 1999, the GP's entry on 26 October 1999 and Dr Naim's referral letter and date, I consider Dr Zicat has incorrectly recorded the commencement time. That seems consistent with apparent errors in paragraph three on page one of his report for example as to when the bursitis began.

65. I conclude that the plaintiff did give Dr Naim a description of her right shoulder dislocation problem at some time before 6 January 2000, at the latest 26 October 1999; see the reference to ‘right shoulder Rotator Cuff Syndrome’ in that entry and his referral ‘Rotator Cuff Tendonitis’ and his reference to the plaintiff's explaining the problem in the referral. I think it probable, with effluxion of time, that there was a greater interval than both the plaintiff and her mother recall, between the onset of the dislocation problem and her referral to Dr Sonnabend. The first dislocation occurred in June 1999 and is not too far removed from the history she gave to Dr Sonnabend, March 1999, versus June 1999, given that he saw her over thirteen months after the accident.

66. Assuming the defendant was correct to be critical of the plaintiff for not calling her general practitioner to give evidence about what must have been a dramatic event, at least to the plaintiff, there is no reference in the notes to the dislocation other than in the way I have described it or the references I have given. So I am not persuaded the doctors could have done any more than the notes did. It is clear the plaintiff by October 1999 was complaining of a significant right shoulder problem, and given there is no entry for any referral at all, it is not easy to see how much more either doctor, if called, could have added.

30 That evidence went to a matter of when the respondent first complained of shoulder dislocation. According to the respondent’s mother, this was around mid 1999. That was well within the six months after the accident on 16 February 1999, being the time period said to be most consistent with the accident bringing about the dislocation. Moreover, as is brought out in [67] above, the respondent’s mother gave evidence of other dislocations after the respondent returned to work in August 1999 (with Hanley Moir but importantly on only restricted duties). If in August 1999, this would still be within the six months after the accident.

31 McColl JA identifies difficulties with the assessment of that evidence. Her Honour first sets out the respondent’s evidence in chief about the first occasion her right shoulder subluxed, when in the car with her husband. This was, she said, “a couple of months, but I can’t remember exactly, after the accident” and subsequently answered “roughly three months, again a very rough estimate” (Black, 42-3 and 44-5). She said that she went almost immediately to her GP Dr Bloom and that “it was not long after that she was referred to Professor Sonnabend”. She reported on “many” incidents of her shoulder “moving out of place” before she saw Dr Sonnabend.

32 After reviewing the records from notes of the various doctors she saw up to and including the respondent seeing Dr Sonnabend for the first time on 24 March 2000, McColl JA concludes as follows (omitting paragraph numbers):

“In my view, contrary to the primary judge’s conclusion, by and large the records support the proposition that the respondent’s right shoulder first subluxed towards the end of 1999, whereupon she was referred to Dr Sonnabend. A version of subluxation followed by immediate referral accords with the respondent and her mother’s account of the sequence of events, albeit not with their timing.

Returning to Dr Zicat, I find it difficult to understand why he would have recorded an incorrect history as the primary judge inferred. The primary judge felt comforted in reaching his conclusion that Dr Zicat had erred because the doctor recorded that the respondent’s bursitis began in March 1999. However, in my view the history Dr Zicat recorded was more probably than not that given by the respondent. It is consistent with her relating events to March 1999, as she did when she saw Dr Sonnabend.

However, the history Dr Zicat was given of the timing of the onset of her subluxation accorded with other contemporaneous material, including the report to Mr Eisman in December 1999. I note parenthetically, as the appellant submitted, that if the respondent’s shoulder had been subluxing since March or June 1999, merely on simple movements, as she described, it is inconceivable she would have been swimming at the end of the year. The timing of Dr Naim’s referral also, in my view, accords with a late 1999 subluxation.

33 McColl JA then deals with Mr Eisman’s notes (Mr Eisman, referred to by the trial judge as Dr Eisman, was the respondent’s chiropractor). Also dealt with are two referral letters to a Dr Ridhalgh an orthopaedic surgeon dated 19 and 22 February 1999. The latter deals with the respondent’s condition after the accident and the former describes the respondent’s condition pre-accident. Those notes and the two letters were relied upon by the trial judge to support the finding that the respondent complained to Mr Eisman just after the accident about an “increase in right shoulder pain”. The respondent had come to see her chiropractor, relevantly not only the day before the accident namely on 16 February 1999, but also immediately after, namely on 17 and 19 February 1999.

34 Mr Eisman (without criticism from either side) did not give any oral evidence. However, his notes and the referral letters were in evidence. Those notes also included entries on 17 June 1999 and further entries on 19, 20, 29 July and 6 August 1999. The trial judge dealt with the evidence emanating from Mr Eisman as follows:

“13. This case is unusual, given the significant issue on causation and that Dr Eisman happened to see her the day before the accident and the day after. Dr Eisman did not give evidence and I was told that his clinic had closed. His notes, which were in evidence, were the subject of minute attention by counsel. Dr Eisman's absence was not the subject of adverse comment by counsel for either party.

14. Given the defendant's primary contention that the plaintiff did not at any relevant time complain of any accident caused right shoulder injury, it is helpful to see what contemporaneous records show after the accident, compared with what they recorded before.

15. As I have noted, the accident occurred on 16 February 1999. The plaintiff said she took the impact in the right arm and thereafter had completely restricted wrist movement. Immediately following the accident an ambulance came and took her to St George Hospital. She waited for a considerable time then was x-rayed, but because more delay was involved in waiting for treatment she eventually left. Although she complained of a right wrist injury to the ambulance officers, to hospital triage staff and to police, she did not complain to them of any right shoulder injury.

‘Her right wrist was hyper-extended … with sharp pain over the radial styloid.’

17. On neither occasion is he recorded as having noted a complaint of increased right shoulder pain.

18. However, as I have noted, on the days before and after the accident she saw Dr Eisman. His two reports of 19 and 22 February 1999 are in evidence. They are very similar in form. They both postdate the accident, but it is clear from its contents that the second was written after receipt by Dr Eisman of a history of the accident. It includes results of examinations on 17 and 19 February.

19. It is to be recalled that she was sent to Dr Eisman precisely because of the pre-accident right shoulder problem. Indeed, the notes for 15 February 1999 have a whole page devoted to her right shoulder.

‘Ms Clancy states her entire right shoulder is in pain and discomfort. She also states that in a resting state she experiences a constant burning sensation on a pain level of 4/10; 10 being the worst. Upon movement she experiences a grinding sensation as well as sharp slabbing pains. She denies any temperature changes or sensory deficits. Her range of motion is also limited by the events that led up to the patient's past medical history. The onset of this acute condition occurred about six months ago. She now states it has become both chronic and debilitating. She recalls no trauma nor incident that has provoked the condition however, states that her occupational duties aggravate the condition. Ms Clancy also states she is unable to perform normal daily activities inclusive of housekeeping, opening jars or even personal grooming activities as simple as getting dressed ۥ

At page two of his report he said this:

‘Physical Examination: both shoulders appear to be symmetrical. Skin colour is normal with a slight tanning of the skin. The patient states she uses sunscreen and does not expose her skin to direct sunlight very often. The left shoulder is elevated and contour of both shoulders appears to be within normal limits. There appears to be moderate inflammation of her right shoulder, as indicated by the pitting of her bra strap and upon palpation.’

In his second report he said this:

‘Update Report:

Evaluation of her right shoulder and arm. On February 16, 1999 she was involved in a rear end motor vehicle accident. Ms Clancy was the driver and recalls no loss of consciousness — [the word conciseness appears here but is clearly incorrect and is intended to be consciousness] - nor emesis. She however states that her right arm and upper extremity was re-injured. She was taken to the hospital by ambulance. A complete examination was performed inclusive of radiological studies.’

Chief Complaint

Ms Clancy states her entire right shoulder is in pain and discomfort. She also states that in a resting state she experiences a constant burning sensation on a pain level of 10/10, 10 being the worst. Movement is completely restricted and she feels heat and swelling of a pressure type sensation throughout her arm and hand. She denies sensory deficits. Her range of motion is also limited.

Physical Examination

‘Both shoulders appear to be symmetrical; skin colour is normal with a slight tanning of the skin. The patient states she uses sunscreen and does not expose her skin to direct sunlight often. Her left shoulder is elevated and contour of both shoulders appears to be within normal limits. There appears to be increased inflammation.’

21. In this second report he adds to the list of disabilities under the heading ‘Diagnostic Impression’: ‘Hyper-extension injury to the right hand and wrist and oedema.’

22. The oedema no doubt relates to an injury to her thumb, as to which there is reference in the medical evidence.

23. On the first visit, namely 15 February 1999, as I have observed, Dr Eisman noted moderate inflammation of the right shoulder. In the second however, the first after the accident, he noted increased inflammation. Although the reference to increased inflammation was in a paragraph where he dealt with both shoulders, it is clear from the context and from the first report compared with the second, (and I do infer) that his reference to increased inflammation was to increased inflammation in the right shoulder. It is to be noted further under the chief complaint in the second report that her entire right shoulder was in pain and discomfort, it being stated: ‘In a resting state she experiences a constant burning sensation on a pain level of 10/10’.

24 Clearly she saw the chiropractor on the second and third occasions complaining about her right wrist, but taken together, his two reports show that she complained to him of an increase in problems with her right shoulder on the days following the accident.

25. Given the reference to pain level being 10/10 was in a context where Dr Eisman saw her regarding her shoulder, and referred to the shoulder at the beginning of the sentence, I take him to have received a complaint of an increase of right shoulder pain. I note also his reference to the plaintiff's saying: ‘Right arm and upper extremity was re-injured,’ although, probably not a great deal turns on that, as that could merely mean her arm.

234 Dr Hitchen examined the respondent on the appellant’s behalf on 28 April 2005. It is plain from his report that he had available a number of the historical medical records dealing with the respondent. Thus, he referred to the description in Mr Eisman’s report of 19 February 1999 of the dysfunction in the respondent’s right shoulder prior to the accident and opined:

(BLUE 332)

235 Dr Hitchen expressed the following opinion (BLUE 334):

“The motor vehicle accident in question could not possibly have caused her shoulder pathology, for which she has undergone multiple episodes of surgery. A significant injury to the shoulder will result in immediate complaints of pain, and rapid presentation for investigation and treatment. There is clearly no history of injury to the right shoulder when an objective review is undertaken. Specifically, there is no evidence of shoulder pain on the ambulance officer’s report, on the presentation to the Accident and Emergency Department at St George Hospital, nor is there any evidence of presentation for medical treatment or review within months of the alleged injury.

236 Dr Sonnabend responded to Dr Hitchen’s report on 17 June 2005. Significantly he said (BLUE 20):

“In essence, Dr Hitchen and I disagree not in our understanding of the pathology present but in our explanation of the mechanism by which it arose.

Even in multi-directional instability arising from specific ‘episode trauma’, symptoms generally do not arise instantaneously unless the shoulder is actually dislocated at the time of injury. The presumed mechanism is one of ligamentous structures being stretched beyond their ‘elastic limit’, and thereafter failing to function as normal ligaments. … My interpretation of the sequence of events is that the motor vehicle accident stretched parts of [the respondent’s] shoulder capsule (ligaments) beyond their elastic limit, thus setting in chain the development of symptomatic multi-directional instability. It is believed that as more and more fibres are stretched beyond their elastic limit, the strain on adjacent fibres increases, with those fibres sequentially failing, effectively setting off a chain reaction which culminates in symptomatic multi-directional instability.

One would not necessarily expect the symptoms to arise immediately at the time of the motor vehicle accident, but rather that they develop gradually over weeks or months following the accident.

Dr Hitchen and I agree that there was significant systemic ligamentous laxity preceding the motor vehicle accident, and that it undoubtedly contributed considerably to [the respondent’s] subsequent multi-directional shoulder instability. We disagree essentially in a matter of degree. [The respondent’s] shoulder symptoms prior to the motor vehicle accident were those of bursitis. Dr Hitchen and I agree that this was almost certainly due to rotator cuff impingement which was, in turn, secondary to systemic ligamentous laxity. There were at that stage however no overt symptoms of instability, with [the respondent] not being aware of the humeral head (ball of the shoulder) slipping out of its socket. She did however become aware of symptomatic instability (the ball slipping out of the socket) in the period following the accident. As indicated in my report of November 2000, one would normally expect the impingement noted pre-accident to settle with conservative measures (essentially exercise). This did not occur. Consequently, I would suggest that some further injury to the ligamentous structures (capsule) occurred, and presume that this further injury occurred at the time of the motor vehicle accident. In my opinion, on the balance of probabilities, the progression of [the respondent’s] shoulder pathology was either caused by or severely exacerbated by the motor vehicle accident …”

237 Both Dr Sonnabend and Dr Hitchen gave evidence.

238 Under cross-examination Dr Sonnabend was asked about the significance of when the respondent’s right shoulder became markedly symptomatic in terms of its connection with the accident. He responded (BLACK 315N):

“A. I don’t think it has to occur at a point in time. What I was trying to say before is it’s a – something can be gradual over 24 or gradual over 24 years. I think the fact that she had relatively minor symptoms prior to it and some reasonable time after it was significantly symptomatic suggests that something happened to take her from one to the other. And then she had – I forget how many years … aged 20–something years of using her shoulder to get to a relatively minor point, and then, over a relatively short period, it became more symptomatic. I can’t be more precise than that.

239 Dr Sonnabend was then cross-examined about the usual cause of MDI. He said:

(BLACK 316).

240 He agreed that swimmers were the most common example of repetitive activity used in the context of MDI. (BLACK 316V). The cross-examiner then pursued the question of the connection between MDI and swimming. (BLACK 318):

“Q. [The respondent], you accept, has this underlying condition.

…

241 The cross-examiner then asked Dr Sonnabend to make a number of assumptions about the respondent’s history (BLACK 321–323) which I will set out in short form:

(a) that the respondent presented to Dr Ridhalgh with a history of right shoulder problems over the six months prior to the accident for which an injection was administered;

(b) that the respondent presented to Mr Eisman on 15 February 1999 describing her “entire right shoulder [as being] in pain and discomfort, and that in a resting state she experienced a constant burning sensation … [with] a pain level of four out of ten … a grinding sensation as well as sharp-stabbing pains”; and a history of the acute condition having occurred about six months before and the respondent’s opinion that “it had now become chronic and debilitating”; that she “stated that her occupational duties … had aggravated the condition” and that at that time she was unable to perform normal daily activities”;

(c) that the respondent had been unable to swim since the onset of her condition six months before the accident, but that before the onset of her condition she engaged in marathon swimming for which she trained four times a week;

(d) that even though the respondent had ceased swimming six months before presenting to Mr Eisman, she nevertheless continued to experience symptoms in her right shoulder;

(e) that following the car accident she did not report to her treating doctors any increase in symptoms in her right shoulder, any alteration, aggravation or new pain;

(f) that by about July 1999 she presented with some symptoms in her right shoulder;

242 Dr Sonnabend agreed that those assumptions were not his perception of what happened (BLACK 323V). He accepted that what had been important to him in terms of his ultimate opinion about causation was that there was a “minor position before the accident” and then, after the accident, “a significant aggravation of the symptoms”. (BLACK 323–324). He accepted that on these assumptions, “there would be greater doubt about the causal relationship between the motor vehicle accident and the MDI”. (BLACK 324F).

243 He said (BLACK 324M) that:

(BLACK 324Q).

244 In re-examination Dr Sonnabend was asked his opinion about the fact that when the respondent attended the Sydney Pain Management Centre in May 1999 she had 120º abduction in her right arm. He said that that range of movement suggested that whatever condition had caused the bursitis that Dr Ridhalgh had treated her for was not severe. (BLACK 328).

245 Dr Hitchen was then called. At the commencement of the cross-examination of Dr Hitchen, the cross-examiner established that he had not referred in his report to the MRI report of the respondent’s shoulder which pre-dated the accident. Dr Hitchen accepted that he would have looked at it, but explained that he had not referred to it because it did not provide a great deal of light in terms of his diagnosis. (BLACK 343). He pointed out that he had dealt with the fact that the respondent had a pre-existing problem which her surgeon had investigated appropriately, including by way of an MRI. He accepted that it would be helpful to know what the MRI showed about the respondent’s tendons and ligaments in her right shoulder, but rejected the proposition that if his theory was correct, that the respondent’s problems had pre-dated the accident by a considerable length of time, one would expect to see significant pathology in the tendons and ligaments in the right shoulder in the pre-accident MRI. (BLACK 344). He rejected the proposition that the MRI demonstrated that the respondent’s pre-accident shoulder condition was a result of a minor glenohumeral instability, explaining that an MRI does not diagnose shoulder instability. (BLACK 346).

246 The cross-examiner then left this issue and turned to other matters.

247 Dr Hitchen disagreed with the proposition that the respondent’s right shoulder symptoms prior to the motor vehicle accident were probably as a result of some “minor glenohumeral instability”. He accepted that the respondent had glenohumeral instability before the accident and that it was related to her systemic ligamentous laxity. He disagreed with the proposition that it was minor having regard to the fact that she had had to see an orthopaedic surgeon as well as a chiropractor about it. He also disagreed with the cross-examiner’s proposition that there was no suggestion that the respondent had had systematic instability before the accident. In his opinion the symptoms of systematic instability were manifested by the impingement syndrome prior to the accident. He also observed that patients with multi-directional instability and ligamentous laxity with multi-directional instability generally initially presented with impingement symptoms. (BLACK 347B-G).

248 The cross-examiner then referred to Dr Sonnabend’s response of June 2005 to Dr Hitchen’s written report and asked Dr Hitchen whether, in the light of that response, he maintained his opinion that “the motor vehicle accident … could not possibly have caused her shoulder pathology”. Dr Hitchen adhered to his opinion. (BLACK 345).

249 Dr Hitchen identified the respondent as being in a small group of those with unstable shoulders who had “generalised ligamentous laxity, whose shoulders slowly start to slip in and out of place because of their genetic makeup … [who] do not have a traumatic event to initiate their instability”. (BLACK 350R). He drew a distinction between that group and those whose unstable shoulder arose from trauma. In the latter case he said there would be a presentation immediately after the trauma. (BLACK 350T).

250 Dr Hitchen explained the likely progression of the respondent’s condition, had the motor vehicle accident been implicated in it, as being pain immediately and discomfort, and inability to move it for many days because of the trauma needed to set off the subsequent chain of events. (BLACK 351–352). In his view, to be connected with the accident the pain had to continue for at least a few weeks leading to the patient feeling that the shoulder was “popping out” or starting to describe instability episodes as the weeks and months elapsed. (BLACK 352P).

251 He accepted that it was central to his opinion that the respondent’s problems were not connected to the motor vehicle accident that there was no shoulder pain immediately after or within days of the accident. (BLACK 353P). In his view the “critical window period [was] within days of the accident.” (BLACK 354C). He accepted that if the respondent had been complaining of pain in the right shoulder immediately after the accident that would “significantly modify” his opinion. (BLACK 354M).

252 Dr Hitchen also accepted that if there was pain at the time of the accident, continuing pain in the right shoulder, and some months later the patient became aware of the ball slipping out of the socket, he would be prepared to implicate the trauma as a cause of the condition from which the respondent suffered. (BLACK 344-355).

253 The primary judge preferred Dr Sonnabend’s opinion to Dr Hitchen’s because of his greater experience and because he was the treating surgeon. He also gave a demeanour-based assessment, opining that he thought Dr Hitchen was “a little slow to concede matters which [he] would have expected him to concede, for example, the consequence to his views of his not referring to the pre-accident MRI scan in his report.”: primary judgment at [93].

254 It is appropriate, therefore, to set out briefly Dr Sonnabend’s and Dr Hitchen’s respective qualifications. Both, as the primary judge accepted, were highly qualified orthopaedic surgeons. Dr Sonnabend had specialised in shoulder surgery since 1985. Dr Hitchen appeared to have specialised in orthopaedic surgery since 1996. As I understand his evidence during a period of five or six years commencing in about 1996 when he was practising on the mid-north coast, 60 to 70 per cent of his practice involved shoulder surgery. Further, once he embarked upon private practice (at a date which is unclear) he said that about 80 per cent of his consultations and surgery related to shoulder problems and pathology, the other 20 per cent to knee problems.

255 In my view, with respect, the primary judge did not do justice to Dr Hitchen’s evidence. First, he preferred Dr Sonnabend’s evidence on the basis that he had greater experience than Dr Hitchen. It is apparent from what I have set out that Dr Hitchen had extensive experience in shoulder surgery. It was not put to him that his experience in any way disqualified him from proffering an opinion about the respondent’s shoulder condition.

256 Next, the primary judge preferred Dr Sonnabend because of his observation of the two experts during cross-examination. He gave one illustration of a matter which he opined Dr Hitchen was slow to concede, the significance of him not referring to the pre-accident MRI scan. The primary judge said he would have expected Dr Hitchen to concede the consequence to that of his views. He did not explain what that consequence was. As I read Dr Hitchen’s evidence he accepted that the pre-accident MRI would be helpful, but explained he suspected he had not referred to it because of the clinical examination he undertook and the volume of notes that had been sent to him. In terms of his diagnosis, he did not believe it provided a great deal of light. The cross-examiner did not, in my view, establish any basis on which Dr Hitchen’s approach in this respect could be criticised, at least not in a manner which effectively entitled the primary judge to pay no regard to Dr Hitchen’s evidence.

257 I have read both Dr Sonnabend’s and Dr Hitchen’s evidence closely. It does not appear to me that either was more or less ready to concede matters. Rather each, when the other party’s case was put to them, accepted that if the assumptions put to them were made supported by the facts, their respective opinions might differ.

258 Importantly as I read their evidence, both experts agreed that in order to find the MDI was linked to the accident, it was necessary to find that the respondent had, in the case of Dr Sonnabend, had a minor shoulder condition before the accident and a major one after or, as Dr Hitchen explained, that the trauma necessary to set off the chain of events had to be immediate pain and inability to move for many days.

259 Dr Sonnabend accepted that if the assumptions the appellant’s counsel put to him were established, the role of the accident producing her shoulder symptoms was less clear. In my view those assumptions were established, albeit that I would put the symptoms in the right shoulder as having occurred later than assumption (f).

260 In my view, as I have sought to explain, the evidence does not support the opinion upon which the respondent founded her case.

261 Further, Dr Sonnabend accepted that the most typical aetiology of MDI was micro trauma. Dr Hitchen also explained how the respondent’s pre-existing condition could have lead to MDI without a major traumatic event. The respondent’s history was arguably consistent with her MDI being caused by her lengthy swimming history, as well as her work duties. The primary judge did not consider either of these cases, a matter about which the appellant is justified in complaining. I have concluded that the appeal should be allowed, however if I am not correct in that respect I would be of the view that the failure to give reasons should lead to a new trial.

262 In my view the primary judge erred in rejecting Dr Hitchen’s opinion which, in the final analysis, in my view accorded with Dr Sonnabend’s.

Conclusion

263 Finally, I turn then to the analysis the primary judge undertook (at [102]) from which he concluded that the respondent had established on the balance of probabilities that the accident aggravated and worsened her pre-accident right shoulder in a manner for which the appellant was liable.

264 Paragraphs (a)-(d) were uncontroversial and were common ground.

265 As to par (e):

“(e) The instability, Dr Sonnabend said, was minor. Dr Hitchen initially disagreed with the term ‘minor’, although may ultimately have conceded it in cross-examination.”

266 As to (f):

“(f) In the absence of significant trauma, the prognosis for these conditions is usually good; (see evidence of Dr Sonnabend,) and the condition can usually be treated successfully with long term exercises.”

(BLACK 347P)

“‘minor’ eventually, in many patients with severe ligamentous laxity, through the natural course of their life progresses on to moderate and significant multi-directional instability, due to their genetic or soft tissue make-up.”

267 In par (g) the primary judge accepted that a traumatic event such as a motor vehicle accident may stretch parts of a shoulder beyond their elastic limit setting up a process by which fibres failed sequentially ultimately leading to symptomatic MDI and (at (h)) that such symptoms did not necessarily arise immediately but developed over weeks or months up to six months following the trauma. In this respect he relied on Dr Sonnabend. He did not deal with Dr Hitchen’s evidence that if the respondent had suffered a trauma sufficient to initiate the process the primary judge described leading to symptomatic MDI, there would be immediate pain which continued at least for a few weeks leading to instability episodes as the weeks and months passed. (BLACK 352)

268 In pars (n) – (q) the primary judge referred to the complaints he inferred the respondent had made to Mr Eisman as at February 1999 concerning her right shoulder. He noted that the fact that the respondent had occasionally complained of left shoulder or bilateral shoulder pain did not argue against the thesis of a causal connection. He did not explain why, nor did he explain why the right shoulder pain of which the respondent complained was more probably than not caused by the motor vehicle accident as opposed to having been a continuing manifestation of the severe pain the respondent was feeling prior to the motor vehicle accident.

269 The same observation can be made about the primary judge’s par (r) in which he notes complaints to the respondent’s general practitioner of right shoulder pain in late 1999 and a present tense complaint of bursitis following the accident. One again, such complaints are equally consistent with the condition from which the respondent was suffering prior to the motor vehicle accident. The primary judge does not explain why it is more probable than not that those complaints arose as a result of the motor vehicle accident.

270 In par (s), the primary judge accepted that Dr Sonnabend did not have the respondent’s complete pre-accident and post-accident history when he wrote his reports but was satisfied that he had “most of it” in particular the MRI study. It is not clear why the primary judge focused so much on the MRI study. It is not apparent from Dr Sonnabend’s reports that he regarded that study as a significant diagnostic aid and Dr Hitchen gave uncontradicted evidence that it was not. Secondly, Dr Sonnabend had a history of the respondent having experienced markedly increased pain in her right shoulder after the accident. As I have concluded the inference the primary judge drew about this was not open. Accordingly the post accident history did not support the history the respondent gave Dr Sonnabend and, as I have already concluded, his opinion based on what the respondent told him cannot stand.

271 The primary judge then stated (par (t)) that there was no other traumatic event to explain the outcome. However the micro trauma theory could explain the respondent’s MDI, a theory Dr Sonnabend accepted was open and one which was consistent with the respondent’s substantial swimming career, including her marathon swimming. As I have said, the primary judge made no reference to that theory.

272 At various points (pars (n), (p) and (w)) the primary judge explained the respondent’s failure to attribute her right shoulder pain to the motor vehicle accident as being based on her assumption she was suffering from the same problem before and after. However the cross-examination revealed that, at least from 9 days after the accident, the respondent claimed she knew she was suffering different pain in her right shoulder. In that light the failure to associate that different pain with the accident and report it to he various information seekers at that time is remarkable. Secondly, again, the primary judge did not, with respect, explain why it should be inferred that the motor vehicle accident was, more probably than not, a cause of the respondent’s post accident right shoulder condition, especially considering the severity of the pain in her right shoulder, and its severely incapacitating effect, immediately prior to the motor vehicle accident.

273 The primary judge said he approached the respondent’s evidence with considerable caution where it was unsupported by contemporaneous documents. It is not easy, with respect, to see how he applied that approach having regard to the bulk of documents inconsistent with her account. Nevertheless, significantly, his Honour did not base his findings upon the respondent’s credibility and the Court is not, therefore, constrained by the residual limitations on appellate review of credibility based findings which have survived Fox v Percy (at [31]).

274 Approaching the matter on the basis of the contemporary materials, the facts established by the numerous examinations of the respondent and the apparent logic of the events, I am of the view that the respondent did not discharge her burden of proving that the motor vehicle accident was a cause of her MDI.

275 In my view the primary judge erred in concluding that the accident led to an aggravation and a worsening of the respondent’s right shoulder.

276 Since writing the above, I have read Santow JA’s draft judgment. The only additional observations I wish to make concern his Honour’s analysis (at [47] ff) of Mr Eisman’s records. As to the paragraph headed “Physical Examination” from Mr Eisman’s second report (22 February 1999) it should be noted that, save in one respect, it is identical to the paragraph bearing the same heading in his pre-accident report. The only difference is that whereas the last sentence in that paragraph in his first report said:

“There appears to be moderate inflammation of her right shoulder as indicated by the pitting of her bra strap.”

“There appears to be increased inflammation.”

277 Accepting that assumption, it is significant, in my view, that nothing in his observations post-accident caused Mr Eisman to alter significantly his opinion of the respondent’s condition. The only addition to his diagnostic impressions are those to which I refer (at [192]), the first of which clearly refers to the wrist, while the second, more equivocal entry is “edema [sic, oedema]”.

278 On the same day he wrote his report to Dr Ridehalgh, as I note (at [193]), Mr Eisman’s notes record that the respondent had some increased range of movement in her right shoulder. Thereafter there was no record of him treating the respondent’s shoulder again until, as I explain (at [197]) June 1999.

279 Thus, even if it might be accepted the respondent complained of increased right shoulder pain after the accident, although apparently only to Mr Eisman, the contemporaneous records do not support the proposition that that pain was in any way significant so as to call for further investigation and treatment.

280 I accept that there is no apparent reason why Mr Eisman would “invent” a reported symptom, an accusation I did not level at him. However, the apparent discrepancy between his clinical notes and his letters gives pause for thought about either the latter’s accuracy or about attributing the pain level of “10/10” to the respondent’s right shoulder. This is particularly so when such an assessment is inconsistent with Mr Eisman’s subsequent records, which do not record any continuing complaint by the respondent about her right shoulder, a silence which is consistent with the volume of contemporaneous evidence showing that the respondent made no complaint about her right shoulder after the accident until some time after her return to work at Hanly Moir.

Orders

281 I propose the following orders:

1. Appeal allowed.

2. Set aside the judgment of Judge Walmsley SC and substitute a judgment of $59,943.20.

Suitor’s Fund Act

282 CAMPBELL JA: I agree with Santow JA.

**********1

10/12/2007 - Headnote, page 2 last par, "allowing the appeal" should be "dismissing the appeal".Par 65 - second sentence inserted. - Paragraph(s) Headnote, page 2, last par.Judgment par 65

Citations

Nominal Defendant v Clancy [2007] NSWCA 349

Most Recent Citation

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CITATION:	Nominal Defendant v Clancy [2007] NSWCA 349 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23 February 2007
JUDGMENT DATE:	7 December 2007
JUDGMENT OF:	Santow JA at 1; McColl JA at 68; Campbell JA at 282
DECISION:	1. Appeal dismissed. 2. Appellant to pay respondent’s costs.
CATCHWORDS:	APPEAL — facts — interference with findings of fact — whether critical findings of fact inconsistent with incontrovertible fact or uncontested testimony — whether the decision at trial glaringly improbable or contrary to compelling inferences — whether trial judge adequately considered contemporaneous documents — - NEGLIGENCE — damage — causation — shifting evidentiary burden — whether appellant demonstrated its case to a prima facie level so as to require respondent to explain or contradict that case — - EVIDENCE — witnesses — failure to call witness — whether witness one expected to be called by one party rather than the other — adverse inferences — - EVIDENCE — expert evidence — function of appellate court — dispute between experts — whether trial judge entitled to reject expert witness whose qualifications not put in issue — where expert issue in dispute involved differences between the expert witnesses capable of being resolved rationally by examination and analysis — - JUDGMENT — adequacy of reasons — whether trial judge adequately considered appellant’s case —whether trial judge exposed his reasons for resolving a point critical to the contest between the parties — whether trial judge did justice to issues posed by appellant’s case.
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Ahmedi v Ahmedi (1991) 23 NSWLR 288 De Groot v The Nominal Defendant [2005] NSWCA 61 Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 Fox v Percy [2003] HCA 22; (2004) 214 CLR 118 Ibrahim v Pham [2007] NSWCA 215 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Moylan v Nutrasweet Co [2000] NSWCA 337 North Sydney Council v Ligon (1995) 87 LGERA 435 Payne v Parker [1976] 1 NSWLR 191 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308 Shorey v PT Limited [2003] HCA 27; (2003) 77 ALJR 1104 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State of New South Wales v Burton [2006] NSWCA 12 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127 Wilsher v Essex Area Health Authority [1988] AC 1074 Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156
PARTIES:	Nominal Defendant - Appellant Vashti Clancy - Respondent
FILE NUMBER(S):	CA 40115 of 2006
COUNSEL:	Mr R R Bartlett SC with Mr W M Fitzsimmons - Appellant Mr B M J Toomey QC with Mr F Tuscano - Respondent
SOLICITORS:	David McLachlin, Solicitor - Appellant McLaughlin & Riordan - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13828 of 2001
LOWER COURT JUDICIAL OFFICER:	Walmsley DCJ
LOWER COURT DATE OF DECISION:	16 February 2006