WATKINS v VALLEY VIEW POULTRY PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and SHELLER JJA 5 May 1995, 5 May 1995 [1995] NSWCA 496 WORKERS COMPENSATION ACT — APPEAL — "REPETITIVE STRAIN INJURY" — NO QUESTION OF PRINCIPLE Clarke JA This is an appeal from the rejection by Judge O'Meally of a claim made by the appellant that she had suffered incapacity as a result of injury at work. I will in this judgment use the expression "repetitive strain injury" as a term to describe the injury of which she complained. In doing so, however, it should not be thought that I am using it other than as a fairly loose overall description of the various complaints which the appellant made. Her case was that having been out of the work force for a considerable period of time she returned to work for the respondent on 9 February 1989. Initially she was involved in a job which imposed on her three tasks, the first was operating the chicken packing machine, the second was taking the bagged chickens out of the bin under the machine and packing them into cartons and the third was hanging chickens. Her work had to be done at speed and there was the lifting of some weights involved. She said that between two and four weeks after starting this work she first suffered symptoms. I will put to one side for the moment the precise nature of those symptoms. When she complained of her problems she was taken off the work that she had been doing and given light duties for about two weeks. Although the history is not entirely specific or clear it would appear that before that occurred she had been off work for some time. In any event during the whole of the rest of her employment with the respondent she took a number of periods, whether they be daily periods or longer, off work. She remained on light duties about two weeks and was then transferred to the canteen where she worked five days per week doing broadly speaking waitressing work. In what is described as mid-1989 and what appears to be June 1989 she was placed in the factory again sawing chickens. This was quite heavy work according to her evidence and her problems reappeared. After working on that task for three days she was sent back to the canteen and that did, so far as the evidence reveals, happen in June 1989. In initially she worked five days per week and then her work was reduced to two days per week. On 13 September her employment was terminated, the personnel officer of the employer, the respondent, saying in a letter of 13 September 1989 that the decision had been made due to the appellant's lack of attendance and non-notification of same over the last six weeks. That is, during a period when she was working about two days per week in the canteen. The learned trial judge briefly set out the history and said, and accurately in my view, that as the condition of repetitive strain injury was characterised by symptoms and not signs the tribunal of fact was very much dependent upon the reliability of the appellant and her accuracy and reliability as an historian in the histories that she gave to the doctors. His Honour then pointed out that it was necessary to evaluate her evidence and her case in the light of the medical 2 UNREPORTED JUDGMENTS evidence and expressed his conclusion that that was, that is the medical evidence was, marked by contradictions and uncertainties in history. His Honour then refers to a report by Dr O'Keefe, a specialist orthopaedic surgeon, which was written in 1993 but which related to visits commencing on 18 September 1989. In that report the doctor said that the appellant gave a history of injury occurring on 16 February 1989 and of developing a problem with her right elbow in February of the same year. It was put in argument that this was wrong and counsel added to that submission the observation that this was but one of the errors made by his Honour. Counsel did not, however, say that the judgment should be set aside solely because of those errors. The submission which was made was that before the trial judge was entitled to act upon the inconsistencies in histories which he set out he was bound to ensure that opposing counsel had challenged the appellant upon each of these inconsistencies. He relied implicitly on the rule of fairness which is often described as the rule in Browne v Dunn. The submission needs to be considered in the context of a trial in which the only oral evidence was that given by the appellant. The remainder of the evidence upon which the appellant relied was written material in the main being the reports of a number of doctors. The respondent for its part relied solely on written reports of two doctors. The inconsistencies and contradictions which his Honour believed to exist in the histories all emerged from the material advanced by the appellant herself. The judge did not in his judgment refer to inconsistencies in histories given to the two medical practitioners whose reports were tendered by the respondent but confined his observations to those reports tendered by the appellant. This to my mind creates an initial difficulty for the appellant's case on appeal. If she presents a case which contains within it a significant number of inconsistencies and contradictions and does not seek to explain these problems either by oral evidence or any other appropriate form of explanation, it does not sit happily in her mouth to complain about the respondent failing to bring to the appellant's own attention that of which she, or at least her legal representatives, should have been well aware. Let me illustrate. Dr Quong saw the appellant first on 11 April, that is approximately two months after she went back to work. She told him then that the pain originated in her right elbow. That complaint, it will be recalled, is the same complaint as that recorded by Dr O'Keefe in September 1989 and which was said by senior counsel for the appellant to be mistaken. Notwithstanding it appears also in the report of Dr Quong. Dr McMahon, a general practitioner who the appellant saw eleven days before she saw Dr Quong, records a history of a dull ache in the left elbow for a month. The right elbow did not seem to be worth mentioning. Dr Trotter, a general practitioner from the same practice as Dr McMahon, wrote a letter to Dr Quong on 4 May referring to left lateral epicondylitis. It was, I think, these two reports which led counsel to say that Dr O'Keefe had got it wrong and his Honour could not act on the asserted inconsistencies. But the reference to Dr Quong makes it plain that it is not a simple case of Dr O' Keefe recording an incorrect history. If one returns to Dr Trotter's report of 29 January 1990 one sees reference to the first consultation on 3 May 1989 in which the doctor said that the appellant complained of pain in the left elbow which gradually worsened. She made later complaints but I am at this stage dealing only with the initial reports. It is, I think, unnecessary to go further on that precise inconsistency because one could not gainsay the importance, from an evaluative point of view, of the giving of two totally different histories to the two doctors relating to the onset of problems. Senior counsel also drew the attention of the court to a statement made by his Honour that she complained to URJ WATKINS v VALLEY VIEW POULTRY PTY LTD (Clarke JA) 3 Dr Thrift of bilateral elbow symptoms commencing after a strain at work on 16 February 1989 and that bilateral symptoms were not features of the complaints she made to other doctors or in her sworn evidence. Counsel having referred to that statement, took the court to a number of reports where there appeared reference to the development of symptoms in both arms which would adequately meet the description bilateral symptoms. Counsel also took the court to the appellant's evidence which was to the effect that she had first noted symptoms in the left arm but that over a period and following, in particular, the sawing she had encountered right epicondylitis or right problems and counsel invited the court to say that his Honour had just got it wrong. There seemed at first blush to be some substance in the submission because if his Honour was saying that she had never made a complaint of bilateral symptoms he was clearly in error. However, having heard the argument more fully and having re-read what his Honour said in the light of the other parts of his judgment, it appears reasonably clear to me that his Honour was referring to the initial onset of symptoms. On one reading of Dr Thrift's report which related to an interview in, I think, August 1989, her complaints were always of bilateral symptoms and it seems that his Honour was referring there to the difference between that statement and the fact that in her initial complaint she complained of symptoms in one or other but not both arms. I think it is true to say, on any view, that problems which she ascribed to one limb also involved at a later stage the other. I would hesitate before I would come to the conclusion that his Honour had made a blunder of the nature suggested by counsel and I certainly would not reach that conclusion if there appeared a rational explanation for the statement properly understood. I think that the rational explanation was that his Honour was relating his explanation to the initial onset and understood that way there is nothing wrong which what his Honour said. Without traversing any other inconsistencies between the histories and her evidence that it was her left arm which first gave her trouble, it is, I think, sufficient for me to say that it was well open to his Honour in the light of the contradictions and inconsistencies to find himself unable to be satisfied that he could rely on the appellant's evidence as accurate and reliable. I do not think that his Honour was disqualified from taking that course because the attention of the appellant was not drawn to the inconsistencies in her own case, most of which had existed prior to the commencement of her oral evidence, because, as the party bearing the onus, it was her obligation to bring before the court the case upon which she wished to rely which was either clear or in respect of which any difficulties were met one way or another. No doubt she may have been unable to explain all the contradictions and inconsistencies but if she could not they remained as weaknesses in the case she was presenting to the court. I don't think in the circumstances of this case there was any obligation upon counsel for the respondent to ask questions to put her house in order. I would reject the first ground on which the judgment is challenged. The second ground of appeal was that his Honour erred in his statement that there was a contradiction between her evidence that at the time she left her employment she could have continued to work five days per week in the canteen and her evidence that since leaving that employment she had not been looking for work because she could not do any. Let me initially make the observation that there is no doubt that she was working two days per week, although taking time off and not notifying the employer of her intention to take time off, and that there is at the least a measure 4 UNREPORTED JUDGMENTS of inconsistency between that fact and her evidence that she was, after leaving the employer, unable to do any work. However, the matter does not end there because she did give evidence, first, that she had been able to cope with her work prior to the termination of her employment and, secondly, that if she had been given the opportunity to work five days a week she would have tried, even though it might have caused her some problems. For my part I find it difficult to understand how it is that she was well able to work two days a week and willing to try five days a week while in the employ of the respondent but, having been dismissed, she was not able for a period of four years to look for work because she couldn't do any. In my opinion this was an important contradiction in the case upon which his Honour was entitled to rely. The third ground of appeal is that his Honour failed to give proper consideration to the appellant's case insofar as he did not deal at all with the evidence of Dr David Champion contained in a report of 22 March 1993 upon which the appellant relied and which was described by the appellant's counsel at the trial as rational and logical. His Honour, in my opinion, made it quite clear why he didn't deal with that report in his judgment. He did so during the submissions of the appellant's counsel when he said, in effect, that to him the report was complex and didn't have much meaning. It is true that his Honour used an expression which may be thought to be extravagant and unnecessary in the circumstances but my understanding of what his Honour was saying was that he couldn't follow precisely what it was that the doctor was driving at, nor did he understand the relevance of some descriptions used in the report, which while explained to a degree, remained something of a mystery to the judge. Let me say at once that the report is complex and that left to my own devices, as the trial judge was, I would find it very difficult to analyse it and place reliance upon it. I would myself think that I would have needed to have exercised a degree of caution in drawing any conclusions from it because I have some difficulties in understanding the complete text in particular parts of it. I don't think what I have said is advanced by pointing to any particular words but there are a number in the report, some of which are and some of which are not defined in part, which cause me to be not confident that I understand its overall thrust in detail. Thus it is that the judge, having found that he did not comprehend the whole of the report, didn't mention it again in his judgment. The reason he took that course is I think clear and I don't myself see any error of fact or in law in his Honour's reliance upon other medical evidence which was clear and needed no further explanation in preference to that of Dr Champion. Let me say also that while I understand the problems of leading oral specialist evidence in a court such as the Compensation Court a party who seeks to rely on a complicated medical report in a case involving complex medical questions takes an enormous risk if he or she seeks to rely only on that report whether in isolation or in conjunction with others. To my mind a judge may well have been assisted greatly by Dr Champion's report if it had been supplemented by oral evidence which explained in clear terms its meaning and thrust. In all the circumstances I am not persuaded that the appellant has shown any error in the judgment on appeal and I propose the appeal be dismissed with costs. Meagher JA I agree. Sheller JA I also agree. URJ WATKINS v VALLEY VIEW POULTRY PTY LTD (Sheller JA) Clarke JA: The order of the court will be as I have said. Appeal dismissed with costs. 5 Counsel for the appellant: CT BARRY QC AND K RYAN Solicitors for the appellant: ARMSTRONG AND PARTNERS Counsel for the respondent: S MOTBY 10 Solicitors for the respondent: RISHWORTH DODD AND MANCZEL