Daniel v Holroyd City Council

District Court of NSW|2016-09-30

Introduction

In the course of the hearing the issue between the parties narrowed to whether the plaintiff had negated the test set out in paragraph [14] in New South Wales v Taylor above, that is whether on the evidence, two opposing medical beliefs may have been reasonably open as at November 1994 as to whether the further deterioration which occurred to the plaintiff, would occur.

The plaintiff's submissions

Mr Hughes SC and Mr Meakes, who appeared on behalf of the plaintiff, submitted as follows: 1. The plaintiff's treating doctor in 1994, Dr Giblin, did not contemplate the serious type of surgery, first a partial knee replacement and then a total knee replacement, as occurred to this plaintiff when it did occur. The plaintiff's injury in 1993 was a fairly minor injury and after the second arthroscopic procedure, the plaintiff was allowed to return to work on selected duties on 29 December 1993: paragraph 11 of the plaintiff's 18 March 2016 affidavit ("the plaintiff's affidavit"). The plaintiff gives evidence that for about a year after December 1993 he remained asymptomatic and then pain returned and the knee became unstable: paragraph 13 of the plaintiff's affidavit. On the evidence, with this minor injury and the relatively minor surgery which had occurred in 1993, Dr Giblin could not foresee that the deterioration which had occurred, would occur; 2. Therefore the plaintiff has discharged the onus on him set out in paragraph [14] of New South Wales v Taylor; 3. Mr Hughes SC asked rhetorically, how could the plaintiff have a different view as at November 1994? The 14 September 1994 report of Dr Giblin (Exhibit 1, page 70) merely predicted repeat surgery on the plaintiff's knee as the years went by. That repeat surgery was a repeat arthroscopy and Dr Giblin only predicted the possibility of a knee replacement operation because of arthritis in the plaintiff's old age; 4. Mr Hughes said that Dr Harrington's views, some 22 years after the event, was a reinterpretation of history given in retrospect. It was inconsistent with the treating doctor's view which is paramount; 5. The importance here was not that a deterioration leading to a knee replacement may occur at some time in the future, the issue was whether the deterioration which had occurred, would occur, at the crucial time when it did in the centre of the plaintiff's working life. His career as a blue collar worker was crucial in this respect. There was only a possibility of the deterioration which occurred when the plaintiff was reviewed in 1994 shortly prior to accepting the lump sum payment; 6. The cross-examination of Dr Harrington was important because in the end Dr Harrington conceded that he agreed with the view set out by Dr Giblin in his 2016 reports, particularly the 17 February 2016 report (Exhibit A, page 147) that at the time of making the assessments in relation to the plaintiff, Dr Giblin did not foresee that the deterioration would occur to the extent where joint replacement surgery would have been performed at a relatively young age to the plaintiff; 7. For these reasons the plaintiff had established within paragraph [14] of New South Wales v Taylor, that an opposite medical belief was not reasonably open in 1994 that the further deterioration which had occurred, would occur.

The defendant's submissions

Mr Tanner, who appeared for the defendant, provided detailed written submissions and expanded these in his oral submissions.
Mr Tanner submitted as follows, in summary: 1. Paragraph [14] in New South Wales v Taylor was clearly established. There was no doubt, on the evidence, that at the time the plaintiff accepted the payment for lump sum workers compensation for his injuries in November 1994 that the deterioration which ultimately occurred, would occur; 2. Mr Tanner submitted that the only issue between the parties was whether the extent of the deterioration which actually occurred would occur at the age which it did, that is, the plaintiff had argued that it was unreasonable in 1994 to expect the plaintiff to require a knee replacement at an early age; 3. Mr Tanner submitted that the medical evidence as at November 1994 established: 1. That the plaintiff would require repeat surgery on his knee as the years went by; 2. The plaintiff would probably need an arthroscopy; 3. The plaintiff would develop arthritis as he continued particularly in his line of employment; and 4. That it was not beyond the realms of possibility that in his old age the plaintiff would require a knee replacement. 5. These matters, put together, showed that Dr Giblin was of the view, as at November 1994, that a substantial deterioration in the plaintiff's condition would occur. Mr Tanner said that the further deterioration that would occur was post-traumatic arthritis of such a degree calling for the interventions of a partial and then total knee replacement; 1. Mr Tanner accepted that weight must be given to the opinions of the treating doctor, Dr Giblin. However, the weight which should be given was not irrebuttable weight and Dr Giblin's views were not decisive. However, Dr Giblin had given a highly guarded prognosis as to the plaintiff in 1994; 2. Mr Tanner submitted that a proper examination of Dr Harrington's reports showed that his view was that the deterioration in the plaintiff which actually occurred was inevitable. He submitted that the last answer given by Dr Harrington in cross-examination should not be taken in isolation but should be viewed in the light of the whole of the opinions expressed in cross-examination and in his reports. Dr Harrington's view was a considered and detailed view and on a proper analysis made it clear that as at 1994 there were two views available as to whether the deterioration which had occurred in the end, would occur; 3. Further, Mr Tanner pointed to the fact that nowhere in Dr Giblin's 2016 reports which were in evidence, did Dr Giblin say that he disagreed with the views expressed by Dr Harrington in his reports. This was highly significant as Dr Harrington's reports were placed before Dr Giblin and he was given a full opportunity to express a different view to Dr Harrington and he chose not to; 4. It was clear that both Dr Giblin and Dr Harrington from their reports and from Dr Harrington's cross-examination were friends and had a high opinion and respect for each other's professional views. In the end Dr Harrington's view was a view which was reasonably open as at 1994 and therefore the test in Taylor was satisfied, the onus always being on the plaintiff. Mr Tanner in particular relied on Dr Giblin's reports dated 24 August 2016 and 22 September 2016. In the former report Dr Giblin stated as follows: "Given the history of minor injury in the early 90's, and the subsequent work environment, a prudent orthopaedic surgeon would err on the side of conservatism and view the original injury as being one of a domino type. That is to say, it had the propensity to set off a series of structural abnormalities within the biomechanics of the knee and thereby let loose whatever vulnerabilities may have existed within the chemical structure and composition of the articular cartilage."; 1. Further, it was submitted by Mr Tanner, that having regard to the plaintiff's different descriptions of what occurred in the accident in 1993 that the Court should exercise its discretion against the plaintiff in granting leave because of the difficulties which the plaintiff on that evidence would have in establishing liability.

Determination

It is clear that the onus rests on the plaintiff to establish the basis for the Court's exercise of the discretion to give leave to revoke the election made by the plaintiff in November 1994.
The issue was whether at the time of the election made by the plaintiff, there was no reasonable cause to believe that the further deterioration which ultimately occurred would occur. The further deterioration in the present case was the continued deterioration of the plaintiff's right knee to such an extent that partial and then total knee replacements were placed before the plaintiff as realistic medical options which were available to be performed on the plaintiff in an attempt to relieve the symptoms from which he was suffering.
All the evidence, and not the injured plaintiff's belief, reasonable or otherwise, must be considered by the Court. The Court will consider the expert medical opinion at the time and subsequent expert medical opinion given in relation to the plaintiff's condition as at the time the election was made. The applicant for leave being the plaintiff in the present case must prove a negative. He must show that it would be unreasonable for a person to hold the belief that, given the medical condition of the plaintiff at the time of the election and the expert opinions as to his prognosis at that time, the condition would further deteriorate as it had.
In my opinion the plaintiff has not satisfied the test in New South Wales v Taylor and accordingly leave should not be given to the plaintiff to revoke the election.
In my view, looking at the evidence as a whole, and giving due regard to the opinions of the treating surgeon, Dr Giblin, there were two opposite medical beliefs reasonably open as at 1994 as to whether the further deterioration would occur as it did occur. I found the opinions expressed by Dr Harrington in his two reports dated 15 August 2016 and 30 August 2016 to be persuasive. In particular, there was the important distinction made by Dr Harrington between a medial meniscectomy and a lateral meniscectomy with chondral changes as involving a high chance of the treatment leading to a total knee replacement.
I also take into account that Dr Giblin when offered the opportunity on two occasions to disagree with Dr Harrington's opinions chose not to do so. The opinion of Dr Harrington was clearly stated in his 15 August 2016 report to the following effect: "In my opinion such deterioration was always going to occur, given the combination of chondral changes identified by Dr Giblin and the low success rate of lateral meniscus pathology."
In coming to this conclusion I have taken into account the concession obtained from Dr Harrington in cross-examination. However, I agree with counsel for the defendant that one needs to look at the evidence in its entirety and not one answer given in cross-examination. In particular, Dr Harrington was not asked after making the concession whether in the light of the concession he wished to change his opinions in his two reports.
For these reasons, I find that on the expert medical evidence, two opposite medical beliefs were reasonably open as at 1994 as to whether the further deterioration which occurred to the plaintiff, would occur. Therefore, in exercising my discretion under Section 151A(5) of the WCA, the plaintiff's application for leave to revoke should be refused.
In arriving at that conclusion, I have not taken into account as a significant factor the defendant's argument that leave should be refused because of the plaintiff's earlier inconsistent accounts as to the circumstances of the accident. The evidence shows that the plaintiff gave various versions in the decade after his injury as to the circumstances of the accident. The precise circumstances of any accident would need to be determined after hearing all of the evidence and any witnesses which were there at the time.
I order that the plaintiff's application be dismissed.
I will hear the parties as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2016

The legal principles applicable

In New South Wales v Taylor (2001) 204 CLR 461; [2001] HCA 15 the High Court considered the proper interpretation of Section 151A of the WCA in the form that is relevant to these proceedings. The question before the Court was whether Section 151A(5)(c) of the WCA was satisfied if, at the time of the election by the injured worker, a reasonable person in the position of the injured person would have had no cause to believe that further deterioration of the medical condition would probably occur. The majority of the High Court answered this question in the negative. The High Court majority held: 1. The text of Section 151A(5)(c) does not support the view that the belief of the injured person or a person in his or her position is relevant in determining whether leave to revoke should be granted: paragraph [10]; 2. The belief of the injured person, reasonable or otherwise, is not the criterion on which leave to revoke depends. For the same reason, the belief of a reasonable person in the position of the injured person is irrelevant: paragraph [11]; 3. It is for a court to determine whether "there was no reasonable cause to believe that the further deterioration would occur". The court must examine all relevant evidence concerning the medical condition at the time of the election and all relevant evidence that throws light on the prognosis of the condition at that time. If the court holds that the applicant has failed to prove that there was "no reasonable cause to believe that the further deterioration would occur", it must refuse the application.
The majority of the High Court stated the following in the course of their judgment: "[12] The form of the subordinate clause in s151A(5)(c) is explained by the fact that it is for a court to determine whether "there was no reasonable cause to believe that the further deterioration would occur". That fact, together with the omission of any reference to the injured person's belief, suggests that the court examines all relevant evidence concerning the medical condition at the time of the election and all relevant evidence that throws light on the prognosis of the condition at that time. If the court holds that the applicant has failed to prove that there was "no reasonable cause to believe that the further deterioration would occur", it must refuse the application. If it holds that the applicant has proved that there was no reasonable cause for such a belief, it may, but not must, give the applicant leave to revoke the election. [13] Hence it is the court's view of all the evidence and not the injured person's belief, reasonable or otherwise, that is decisive. On this view, the test for the court is: given the medical condition of the applicant at the time of the election and the expert opinions as to its prognosis at that time, would it be unreasonable for a person to believe that the condition would further deteriorate as it had? The applicant for leave must prove a negative. He or she must show that it would be unreasonable for a person to hold that belief. The applicant will prima facie discharge that onus by tendering evidence indicating that such a belief could not be reasonably held. If a prima facie case is established, the employer has the evidentiary burden of showing that there exists another body of evidence that indicates a contrary conclusion. Ultimately, it is for the court to determine whether "there was no reasonable cause to believe that the further deterioration would occur" in accordance with the test that we have formulated." (emphasis added).
The defendant in these proceedings relies on paragraph [14] of the judgment of the majority of the High Court. It says that the evidence shows that two opposite beliefs were reasonably open as at 1994 as to whether the further deterioration which the plaintiff suffered would occur. Therefore, where the evidence admits of two reasonable, but opposing, conclusions, the applicant has failed to show that there was no reasonable cause to believe that the further deterioration would occur. The defendant says that the plaintiff's own specialist Dr Giblin contemplated the further deterioration but in any case Dr Harrington in his reports clearly gives evidence to the effect that there was a reasonable belief in 1994 that the further deterioration of the plaintiff would occur.
In Corcoran v Tyre Marketers Australia [2001] NSWCA 300, Mason P and Grove J (with Davies AJA dissenting) stated as follows at paragraphs [69]-[71]: "[69] None of the treating doctors suggested the probability of further material deterioration in the appellant's medical condition. [70] The respondent submitted that the silences of the medical reports of 1995 are pregnant. It submitted that the doctors were unwilling to express any prognoses at this period, because it was too soon after the February surgery. We do not agree that their reports should be construed as if they bore a cloud of pessimism or reserve. Sometimes they were silent or neutral, but in a context where one would have expected them to have expressed opinions as to probable or likely deterioration if they actually held them. At other times they were positive in outlook. The doctors were aware of the medico-legal context in which they were treating the appellant at this time. [71] The objective test adopted by the High Court in Taylor does not direct attention away from identifying clearly how the "medical condition" stood at the time of the election. Nor does the availability of later medico-legal opinion detract from the vital relevance of the informed opinions of the patient's treating doctors at the time."
Thus, in the view of the majority, the informed opinions of the patient's treating doctors at the time are of "vital relevance".
In Saad v J Robins & Sons Pty Ltd [2003] NSWCA 87, Santow JA (with whom Mason P and Hodgson JA agreed) held at [17]-[27] that in essence a worker will only be prevented from seeking leave to revoke his or her election if there be reasonable cause to believe, at the time the original election was made, that the worker's medical condition would deteriorate in the way it actually had; that is, that the nature and extent of that deterioration must be predictable. The Court stated the following at paragraph [19] "[19] The emphasis that I have placed on the word "the", as a definite article before the words "further deterioration" in subpara (c), is to show how the further deterioration refers to the actual manner of deterioration derived from, but not limited to, the original injury or its site. This supports a wider construction than that adopted by the Trial Judge. He focused upon the immediate effect of the injury, in this case a damaged wrist. He excluded further later material deterioration to the person's wider medical condition though caused by the original injury to the wrist. Thus taking the facts in State of New South Wales v Taylor, Callinan J, though in the minority, uncontroversially describes the back injury suffered by the plaintiff in that case. He does so not merely in terms of a particular prolapse of a degenerative disc in the back (at 485 [77]) but as including pain and discomfort in the worker's back more generally and not only in its immediate effect on his right leg but also later in his left leg. There is nothing in the majority judgment which would take any narrower view of the worker's condition than that uncontroversially adopted by Callinan J and derived in turn from the original trial findings. While the majority judgment concluded that in light of the evidence, including the evidence concerning the worker's further deterioration, the worker failed to prove that at the time he made his election "there was no reasonable cause to believe that the further deterioration would occur", that conclusion in no way depended upon a narrow definition of the worker's medical condition. In particular it did not require exclusion of any deterioration that was not at the site of the original injury but ramified from it as the Trial Judge in the present case sought to do."
At [22] Santow JA stated that the hurdle facing a plaintiff was in having to prove a negative, namely that there was no reasonable cause to believe that the condition would further deteriorate as it had.
At [27] the Court concluded that having regard to the nature of the deterioration of the plaintiff there in question and its extensive ramifications, it was "evident that there could have been no reasonable cause for a belief that the further deterioration which did occur, would occur".
It should be noted that the test was whether the plaintiff had discharged the onus of establishing that at the time of election there was no reasonable cause to believe that the further deterioration which had occurred would (not could) occur.

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