NECAKOVSKA v RUNDLES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and BEAZLEY JJA 15 July 1996, 19 December 1996 [1996] NSWCA 386 WORKERS COMPENSATION — Compensable injury — Injury arising out of or in the course of employment- Omissions in medical evidence — Trial judge's drawing of adverse inferences against applicant — Misapplication of principles in Jones v Dunkel. The appellant machinist injured her back on 27 April 1994 while pulling her chair closer to her machine. On 20 June 1994, she suffered sudden, incapacitating back pain, for which she was admitted to hospital. In July 1994, she underwent surgery to remove a sequestrated disc. O'Toole CCJ awarded the appellant compensation in respect of two brief periods. Her Honour found, on the basis of discrepancies between the appellant's and other evidence, and the absence of certain medical evidence, that it was unlikely that the appellant had a prolapsed or sequestrated disc as a result of the chair pulling incident on 27 April 1994. Her Honour also found that there must have been some supervening event or events on or prior to 20 June 1994 which caused the incapacity which led to the surgery. The appellant submitted that the trial judge erred in law in two respects: first, in requiring that the incident complained of was the sole cause of the appellant's injury. Secondly that the finding that there must have been some supervening event which caused the incapacity was against the evidence. HELD: (1) The appellant's case was not confined to the incident on 27 April 1994 was the sole cause of her injury, nor was her entitlement to compensation dependent on her having to prove that it was the sole cause of her injury. (2) The trial judge erred in misapplying the principles in Jones v Dunkel in circumstances where there was nothing in the medical evidence adduced by the respondent or in any other part of its case which called for contradiction by the appellant in the sense required for the application of the principles in Jones v Dunkel. Jones v Dunkel (1959) 101 CLR 298 explained. ORDERS The Court orders that: 1. Appeal be allowed with costs. Priestley JA I agree with Beazley JA. Handley JA I agree with Beazley JA. Beazley JA This is an appeal from a decision of O'Toole J in the Compensation Court in which her Honour made an award of weekly compensation on the basis of partial incapacity, during two closed periods: first, from 29 April 1994 to 1 May 1994 and secondly from 14 May 1994 to 19 June 1994, together with s60 expenses for the period 29 April 1994 to 14 May 1994. The appeal was in respect of both questions of law and fact. The appellant had claimed for a continuing award on the basis of total incapacity, as well as lump sum awards under s66 and s67 and ongoing s60 expenses. The appellant contended that, in confining the award as she did, her Honour misdirected herself in law; made findings not based on the evidence and 2 UNREPORTED JUDGMENTS speculated about an event or events as to the cause of the applicant's condition. These grounds require an examination of the evidence. The appellant, who was employed by the respondent as a machinist, sustained an injury to her back on 27 April 1994 whilst pulling her chair closer to the sewing machine at which she was to work. As she sat down, her back clicked. She said she immediately felt a lot of pain in her back, which was identified in evidence as being through the sacroiliac joints through to the top of the sacrum. She spoke to her supervisor and was sent to see the nurse in the first aid room. She was treated with ice packs during the course of the day. The appellant worked the following day although she saw the nurse again and also saw her general practitioner, Dr Rana. She was absent from work on 29 April 1994 and probably on some days thereafter. She returned to work for about two weeks and again went off sick. She underwent chiropractic treatment on 3 June 1994 to which she was referred by the respondent. On 20 June 1994, the appellant suffered "sudden, incapacitating back pain". She was admitted to John Hunter Hospital and remained there until 27 June 1994. She was transferred from John Hunter Hospital to Royal Newcastle Hospital on 27 June 1994. A CT myelogram performed at that time revealed a "big sequestered prolapse intervertebral disc at L5-SI... This prolapse caused significant nerve root compression on the left side." On 14 July 1994, the sequestrated disc was removed "giving immediate relief of her left leg pain". Her Honour stated that the discrepancies between the appellant's oral evidence and other oral and documentary evidence was of crucial significance. She also stated there were serious omissions in the medical evidence. The trial judge stated that she was uncertain as to the pathological condition of the appellant's back prior to the incident at work on 27 April 1994. Her Honour found that the appellant's lower limb symptoms probably post-dated the first of her attendances on the chiropractor. However, she would not "speculate" whether any medical or paramedical intervention caused the prolapse, noting that the appellant had not run any case of that kind. Her Honour further held that she was "uncertain whether the [appellant's] collapse on 20 June 1994 was related in any way, to whatever happened in the course of her employment". Her Honour found that it was unlikely that the appellant's disc was prolapsed or sequestrated on 27 April 1994 and in the weeks thereafter and that there must have been some supervening event or events on or prior to 20 June 1994 which caused her the incapacity which led to surgery on 14 July 1994. Senior counsel for the appellant submitted that her Honour's judgment revealed two appealable errors. First, he submitted that her Honour had misdirected herself in law in stating that there were "substantial omissions from the [appellant's] medical case which do not support her assertion that the incident of 27 April 1994 was the sole cause of her injury and necessitated major surgery". Secondly, her Honour's finding that there must have been some supervening event or events which caused the disc to prolapse and necessitated surgery, was against the evidence, including that of Dr Millons, the respondent's medical expert and involved her Honour either speculating as to the cause of the prolapse or alternatively, relying upon her own opinion as to the cause of the prolapse. THE MEDICAL EVIDENCE Dr Rana, the appellant's general practitioner, in a report dated 14 March 1995 (but date stamped received by the appellant's solicitors on 27 February 1995), stated that on 27 April 1994, the appellant whilst leaning over to pull her chair in, developed pain in the back. Under the heading "EXAMINATION', Dr Rana stated: URJ NECAKOVSKA v RUNDLES PTY LTD (Beazley JA) 3 "She has intense pain on movement of the spine which does radiated [sic] down to her right leg." Dr Rana then describes her management under Dr Ho and her subsequent rehabilitation treatment. Unfortunately, Dr Rana's report is unclear as to whether the leg pain found on examination was present at the first consultation after the accident, which was probably on 28 April 1994 or whether he was referring to a later examination. Dr Ghabrial from the Department of Orthopaedics, The Royal Newcastle Hospital, expressed the opinion in November 1995 that the appellant's clinical features and residual disability and permanent impairment were related to the 27 April 1994 incident. Dr Benanzio, orthopaedic specialist, in his report of | 3 October 1995, was of the same opinion. It is important to the two questions under consideration that Dr Benanzio obtained a history that, whilst on the day of the incident there was no radiation to the lower limbs, "progressively the back complaint was radiating along the left lower limb... " and that by 7 June 1994 she was unable to walk. In a report dated 23 November 1994, the appellant's treating surgeon, Dr Ho, reported that: "[the appellant] twisted her back during work on 27 April 1994. She felt immediate back pain and some left leg discomfort SINCE. She was initially treated by a chiropractor, but her back and leg pain did not improve." (emphasis added) Dr Ho did not specifically identify the time from which the appellant suffered leg pain. Dr Carr, rheumatologist obtained a history that the appellant had no leg pain until after she saw the chiropractor on 3 June 1994. He was of the opinion that the chiropractic treatment appeared to be the initiating factor of the leg pain that resulted in her going to hospital on 20 June 1994. Dr Millon's report also supports a history that the appellant did not suffer leg pain until after the chiropractic treatment. He expressed the opinion that the appellant undoubtedly had a problem with her lower back and that she appeared to have pre-existing degenerate changes in the lumbar region. He stated: "it sometimes does not take much to set off symptoms from a degenerate spine and on occasions, the mere act of bending over can be enough to prolapse a degenerate disc". He further stated that, after 27 April 1994, "it would appear that a degenerating disc gradually gave way..." In my opinion, her Honour's reasons do reveal appealable error. First, there is nothing to indicate that the appellant so confined her case as to allege that the incident on 27 April 1994 was the sole cause of her injury. Her case was that she was pain free until 27 April 1994. Thereafter, her condition worsened until she came to surgery in July 1994. Secondly, the appellant's entitlement to compensation did not involve her having to prove that the incident on 27 April 1994 was the sole cause of her injury and necessitated surgery. Counsel for the appellant further submitted that her Honour's finding that there must have been a supervening event or events which caused the disc prolapse was contrary to all the evidence, save for that of Dr Carr. He submitted that her Honour's finding had the effect of placing upon the appellant an evidentiary onus which properly belonged to the respondent: see Purkess v Crittenden (1965) 114 CLR 164 at 167-168. Senior counsel further submitted that her Honour substituted her own medical view on the basis that some speculative event caused the prolapse. 4 UNREPORTED JUDGMENTS Dr Carr's evidence supports an alternative case that the prolapse was caused by the chiropractic treatment. If that case had been accepted, the appellant's injury would still "arise out of her employment" so as to entitle her to compensation. However, her Honour did not approach the matter on that basis, which had not been relied on by the appellant, but on the basis of the occurrence of some unknown event. Counsel for the respondent submitted that her Honour, in making this finding, was in fact making a finding that the appellant had not satisfied the onus of proving that her continuing disability arose out of or was sustained in the course of her employment. Her Honour's finding as to the appellant's credit and the absence of medical reports dictated her finding as to the cause of the prolapse. Her Honour's finding as to credit is unassailable: see Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472. This is not necessarily the case in respect of the absence of medical evidence. Her Honour does not specify the relevance of the omissions to which she refers although her statement that there were substantial omissions can only be a reference to the principle in Jones v Dunkel (1959) 101 CLR 298. However, in my opinion, her Honour misapplied that principle or alternatively overlooked certain evidence which makes any reliance on that principle doubtful or of minimal significance. In Jones v Dunkel, Menzies J stated at 319, that three matters must be kept in mind in relation to the operation of the principle: "(i) that the absence of [the defendant] as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference." It is important to bear in mind that the mere failure to call evidence does not, of itself, give rise to a Jones v Dunkel inference. As Abbott CJ stated in R v Burdett (1820) 4B& Ald; 106 ER 873, in a passage adopted as correct by Menzies J in Jones v Dunkel: "No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction;" There was nothing in the medical or other evidence adduced by the respondent which called for contradiction in the sense required for the application of the principles in Jones v Dunkel. If consideration is given to the absent medical evidence, it is apparent her Honour drew inferences which were not available to be drawn or which could not touch upon the central matter in issue in the case, namely, the cause of the prolapse. The absent medical evidence was that of: the chiropractor, the John Hunter Hospital records, evidence from a practitioner who gave her an injection of Pethidine; evidence from a Dr Boyce and a record of a first consultation with Dr Pollack, rehabilitation specialist. 1. As to the chiropractor's report: URJ NECAKOVSKA v RUNDLES PTY LTD (Beazley JA) 5 This was in the possession of the respondent, having been seen by Dr Carr, and thus could have been tendered by it. If any Jones v Dunkel inference is available, it is equally available against the respondent as against the appellant. 2. As to the John Hunter Hospital records: The appellant was a patient in John Hunter Hospital for a week where she was under the care of Dr Ho. Her Honour appears to have overlooked this. Dr Ho reported that whilst a patient there, she underwent bedrest and traction until she was transferred to Royal Newcastle because of the persistent symptoms of back and leg pain. In my opinion, a Jones v Dunkel inference is not available in relation to the hospital records or has minimal significance where there is evidence from the treating medical practitioner in respect of her hospitalisation. 3. As to the practitioner who gave her a pethidine injection: During the course of her examination in chief, the appellant was asked what other treatment, if any, she had in hospital in addition to the traction in John Hunter Hospital, and injections and medications were suggested, to which she replied: "Yes I received injections and I also was given Valium tablets" It would be extraordinary if a Jones v Dunkel inference could be drawn on that evidence. Indeed, it is impossible to discern what the inference might be. 4. Evidence from Dr Boyce: The evidence in relation to Dr Boyce was that the appellant saw Dr Rana on 29 April 1994 and that Dr Rana sent her to the Mater Hospital where she saw Dr Boyce and was x-rayed. She was then given a certificate that she was unfit for work for 2 weeks. The evidence is not clear whether Dr Boyce took the x-rays or whether he gave her the certificate or both. Therefore, it is difficult to assess what inference her Honour sought to draw from the absence of Dr Boyce's evidence. In any event, the respondent probably had Dr Boyce's certificate and the x-ray report, which were also known to Dr Carr. The difficulty is compounded when it is borne in mind that her Honour awarded compensation for the period immediately following the consultation with Dr Boyce. In my opinion, that award is inconsistent with the application of Jones v Dunkel due to the absence of evidence from Dr Boyce. 5. No record of Dr Pollack's first consultation: Dr Pollack was the rehabilitation specialist to whom Dr Ho referred the applicant after her surgery in July 1994. The absence of an initial consultation report or record of a rehabilitation specialist does not bear upon the matter which was in issue in these proceedings - namely the cause of the prolapse which necessitated hospitalisation an 20 June 1994 and subsequent surgery. It follows that no relevant Jones v Dunkel principle applied in respect of this evidence. Where a trial judge has wrongly applied a principle to a maker which is significant to the determination, the determination cannot stand, unless the appellate court is satisfied that no other determination could have been made or there was no substantial miscarriage of justice. That is not the case here. That is sufficient to dispose of the appeal. I should state, however, that there is force in the appellant's submission that her Honour speculated as to the cause of the prolapse and thereby substituted an opinion unsubstantiated by any evidence and was not merely expressing her finding in relation to onus. The appeal should be allowed with costs. 1. Appeal allowed. 2. Proceedings be remitted to the Compensation Court for re-hearing. 6 UNREPORTED JUDGMENTS 3. Respondent to have a Certificate under the Suitors Fund Act if qualified. Counsel for the appellant: J Coombs QC/A Jamieson Solicitors for the appellant: Eakin McCaffery Cox Counsel for the respondent: J Hislop QC Solicitors for the respondent: Sparke Helmore Newcastle