Majkic v Bonanno

CATCHWORDS: Insufficiency of reasons - failure to make critical factual findings

LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW)

CASES CITED: Jones v Bradley [2003] NSWCA 81 Larson v Commissioner of Police [2004] NSWCA 126

PARTIES: Zelfko Majkic (Appellant) Roslyn Angela Bonanno (Respondent)

COUNSEL: Mr K Andrews (Appellant) Mr B G Smith (Respondent)

SOLICITORS: Keddies (Appellant) Sparke Helmore (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40924/07 DC 8472/02

GILES JA BELL JA SACKVILLE AJA

Thursday 16 October 2008 Zelfko Majkic v Roslyn Angela Bonanno Judgment 1 GILES JA: I agree with Bell JA. 2 BELL JA: This is an appeal from the award of $17,261 damages for personal injuries suffered when the appellant was struck by a motor vehicle. Judgment was given in the District Court on 13 December 2007. Liability had been determined at an earlier hearing. 3 Not long after the accident, the appellant underwent an MRI scan of his back, which revealed a significant T11/T12 disc protrusion. A critical issue at the trial was whether the accident caused or materially contributed to the discal injury. The appellant was the only witness who gave oral evidence. A number of medical reports were tendered in each case. None of the authors of the reports were required for cross-examination. There was a marked divergence of opinion on the question of causation between the medical opinion relied upon by the appellant and that relied upon by the respondent.

4 The Notice of Appeal contains 16 grounds. With the exception of grounds 2, 9 and 10, which concern the admission of the statement of reasons of Dr Dowda, a medical assessor under the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act), Mr K Andrews, who appeared for the appellant at trial and on the appeal, distilled the grounds into three: 1. His Honour's reasons revealed an inadequate process of reasoning. 2. The judgment contained factual errors. 3. The findings were not supported by the reasoning.

5 The primary judge identified causation and the extent of the appellant's injuries as the central issues. His Honour accepted and adopted the analysis of the medical evidence set out in the written submissions filed on the respondent's behalf, which he incorporated into his reasons. The extract comprises the greater part of the judgment. (Red 99.D-121.I) 6 The respondent's submissions posited as the reason for the difference in opinion on causation that the doctors on whom the appellant relied had obtained a history that he had experienced back pain in the immediate aftermath of the accident, whereas his treating doctors in the 12 months after the accident had not obtained such a history. His Honour's acceptance of the respondent's analysis included (i) that the reports of the doctors who supported a causal link between the accident and the discal injury were based on a history of immediate thoracic and lumbar back pain associated with the accident and (ii) that the absence of a record of complaint of back pain in the notes made by the ambulance officers and the hospital's Emergency Department staff demonstrated that the appellant did not experience back pain in connection with the accident. 7 His Honour found that the appellant suffered transient soft tissue injury that lasted no longer than 4 months as the result of the accident and that there were no further sequelae. (Judgment [26] Red 122.U-Y)

8 Before turning to submissions made in support of the challenge, it is convenient to refer to the appellant's evidence and to some of the medical evidence on the issue, which his Honour took to be critical. 9 The appellant was crossing Marrickville Road holding his infant son in his arms when he was struck by a car. He fell, landing heavily on his right side. The appellant and his son were conveyed by ambulance to the Emergency Department of the Royal Prince Alfred Hospital. 10 The ambulance officer's report included the following history: "Painful r scapula. C/T. Pedestrian hit by car. C/A family in Medical Centre. Father states was exiting was medical centre/c approx 5 yo son in his arms (pt 1 of 2) when they were struck by a reversing vehicle & knocked to the ground. O/E pt alert oriented and well perfused. Pt c/o painful r scapula on movement & palpation - nil redness/bruising/abrasion/deformation apparent. Pt also c/o tender r hip. Slight abrasion detected on examination - nil in pain on springing hips. Pt also has minor lac/abrasion to l knee. (Blue 4.S-V) Nil other injuries detected." (Blue 5.P) 11 The history recorded in the hospital's Emergency Department notes was: "R shoulder/hip pain, no other complaints. … Hit by slowly reversing veh & fell to the ground on his back on the R side." (Blue 10.M-P) 12 The appellant's evidence in chief of his symptoms immediately after the accident was (Black 13.T-14.H): "Q. How long were you in Royal Prince Alfred Hospital for? A. Till about midnight, about four and a half hours. Q. While you were at Royal Prince Alfred Hospital what did you notice about pain on your body? A. Well each time I coughed I'd get sharp pains in my chest. Q. Any other part of your body did you have pain? A. The base in my neck was just stiff and back was a bit sore. Q. Anything else that you can recall at that time? A. No, not really. Q. Now you eventually went home from the hospital is that right? A. Yes. Q. And on the following day did you consult with Dr I Bourton? A. Yes. Q. When you saw Dr Bourton what problems were you having at that time? A. Once it cooled down my back started hurting regularly and my neck was still stiff and I still had sharp pains in my chest and right shoulder." 13 The cross-examination on this topic was (Black 29.I-L): "Q. And I suggest that you said you didn't have any neck pain at that time? A. Yeah I didn't at the time, no. Q. I suggest that you didn't suggest either to the ambulance officers or to the people at the hospital that you had back pain? A. Not at the time no." 14 The day after the accident, the appellant attended a general practitioner, Dr Bourton. Some of Dr Bourton's clinical notes were tendered by the respondent, but these did not include any notes of the attendance on 3 August 2001. The appellant's usual general practitioner was Dr Rothonis. Dr Rothonis' clinical notes were in evidence. Parts of them are indecipherable, but they included the following entries: "6.8.01 MVA 2.8.01…. "C6 C7" … 7.8.01 MVA on 2.8.01 - … 10.8.01 ++ pain spasm/Tenderness back. cervical spine … celebrex 200 1 - 2/day chiropractor - 3rd party claim 13.8.01 Improved still ++ back pain. Painful spasm with sneezing - Youssef's 16/8 / ? Bone scan 16.8.01 … 29/8/01 Ongoing pain neck - lower back radiating to chest & both groins. trial Anaprox/Somac (sic) / trauma … 6/9/01 ongoing marked pain back shoulders groins - Bone scan 12/9/01 Multiple injuries on Bone scan. ++ neck and Rt shoulder pain # Rt 1st rib numbness of rt hand - R/V Youssef 5.10.01 ? Canal stenosis on MRI T10/11 20 to disc prolapse. also ++ H/A with neck strain/pain - CT neck. Brufen/Panamax." (Blue 7.T - 8.G) 15 Dr Rothonis referred the appellant to Dr Youssef, a rheumatologist. Dr Youssef recorded that the appellant had low back pain. On 13 September 2001 he ordered an MRI scan of the lumbar spine and sacral regions. (Blue 18.P-Q) Dr Youssef's treatment of the appellant was for pain in the right shoulder, which he considered to be secondary to rotator cuff tendonitis. Dr Youssef referred the appellant to Dr Watson, a neurologist. Dr Watson doubted the existence of any serious neurological problem. (Blue 240.E) 16 In November 2002, the appellant attended Dr Marinkovich, complaining that he was not getting any better after the accident on 2 August 2001. In a report dated 2 June 2003, Dr Marinkovich, a Fellow of the Royal Australian College of General Practitioners, noted that the MRI of the lumbosacral spine carried out on 5 December 2002 showed a T11/12 disc protrusion and that he had referred the appellant to Dr Mahony, an orthopaedic surgeon, for assessment and treatment. Dr Marinkovich's report supported the view that the appellant's discal injury was causally related to the accident. Dr Mahony's reports also supported this conclusion. The appellant was referred to Dr Steel, neurosurgeon, whose reports also support the causal link, as does the report of Associate Professor Yeo, an orthopaedic surgeon. 17 Dr Matheson, a consultant neurosurgeon retained by the respondent, considered that the bulge at T11/12 was an old chronic disc change, which was in any case asymptomatic. In his opinion, the appellant has no disabilities arising from the accident. Dr Sachdev, an orthopaedic surgeon, considered that the appellant's symptoms were associated with a great deal of functional overlay. (Blue 249.S) 18 Dr Dowda, who assessed the appellant for the Medical Assessment Service, commented that there is considerable doubt raised as to the nexus between the accident and the discal change identified by imaging studies. (Blue 301.H)

19 Mr Andrews's principal complaint is that the primary judge's reasons contained no analysis of the competing cases. His Honour made no reference to the submissions made on the appellant's behalf. Mr Andrews relied on the observations of Santow JA (Meagher and Beazley JJA agreeing) in Jones v Bradley [2003] NSWCA 81 at [131]: "Thus it is clear that it is not sufficient in cases where there is complex and contradictory evidence presented by the opposing sides, where acceptance or rejection of that evidence is critical to one aspect of the case, for the Trial Judge merely to assert that he or she accepts one case in preference to the other. Neither is it appropriate in such a case for the Trial Judge simply to adopt it, either through verbatim recitation of evidence or by merely saying 'I adopt it'. Where such express evidence goes to issues that have required resolution by reference to it, the Trial Judge must enter into and engage with that evidence and explain why a specific conclusion has been reached. The content of the statement of reasons as well as the degree of detail and elaborateness of reasons is not predetermined, but rather is contingent on the issue and its centrality to the case."

20 Santow JA's observations are apt to the present case. It was not sufficient for his Honour to simply adopt the respondent's analysis of the medical evidence. None of the expert opinion was predicated on the existence (or absence) of pain in the lumbar or thoracic spine immediately after the accident. The submission that immediate thoracic or lumbar back pain was a necessary condition for the conclusion that the accident caused or materially contributed to the discal injury was not supported by the evidence.

21 Mr Andrews accepted that whether the appellant suffered back pain following the accident was a relevant factual matter for his Honour to determine. His complaint was that his Honour's adoption of the respondent's submissions did not address the evidence on the issue. I accept that is so. His Honour's acceptance that the best evidence on the question of whether the appellant suffered immediate thoracic and lumbar back pain were the contemporaneous notes made by the ambulance officers and hospital staff conflates the absence of complaint with the absence of pain. His Honour appears to have overlooked the appellant's evidence on the topic, which was that once it cooled down his back started hurting regularly. His Honour's only finding related to the appellant's credit (Red 98.A-I): "[12] In addition, the accident sued upon occurred on 2 August 2001 and even without the difficulty of contrasting medical reports the plaintiff's evidence was vague, in particular when he was questioned about prior back trouble. [13] I did not think the plaintiff was purposely misleading the court but with the significant effluxion of time and the plaintiff's own belief that all troubles could be put down to the rather minor accident made his evidence unreliable." 22 Given his Honour's acceptance that the critical underlying factual question for determination was whether the appellant suffered immediate thoracic and lumbar back pain at the time of the accident (Red 100.R) the failure to make a finding on the appellant's evidence on the topic was a material omission in his reasons. His Honour did not refer to other evidence that was relied upon in support of the appellant's case. This included Dr Rothonis' clinical notes, which document complaints of back pain from 10 August 2001. 23 Mr B Smith, who appeared for the respondent at trial and on appeal, submitted that nothing of moment turned on the omission to refer to Dr Rothonis' notes. This was because the first entry recording back pain was made eight days after the accident. This submission focussed on the asserted significance of immediate complaint of back pain, which, as noted, was a theory without support in the medical evidence. It was necessary for his Honour to explain why he accepted that it was significant that Dr Rothonis, Dr Youssef and Dr Watson had not reported a history of thoracic and lumbar spine pain, in circumstances in which there was a documented history of back pain from 10 August 2001.

24 His Honour found that the opinions of Dr Marinkovich, Dr Mahony and Dr Steel were of little or no weight since they were based on a history of immediate thoracic and lumbar spine pain, which was inconsistent with the contemporaneous material. (Red 101.M-S) This was incorrect. Dr Marinkovich did not record a history of immediate thoracic and lumbar spine pain. (Blue 52-56) Nor did Dr Mahony. (Blue 77-104) The history that Dr Steel obtained included that there was a delay in diagnosing the appellant's fractured first rib and that from this time onwards he experienced significant low back pain. (Blue 126.L-N)

25 Mr Andrews submitted that his Honour's finding, that the appellant suffered transient soft tissue injury that lasted no longer than four months, was not supported by the evidence. He noted that Dr Dowda found that the appellant had suffered soft tissue injury to the lumbar and thoracic spine, which gave rise to a degree of whole person impairment being not greater than 10 per cent. (Blue 303.H-L) Dr Sachdev, who considered that the appellant was able to continue working part-time as a parking attendant, qualified this opinion with the injunction that he should avoid heavy lifting and undue bending. (Blue 250.W-X) Mr Andrews submitted that these opinions, which were relied on by the respondent, provided no support for the closed period soft tissue injury found by the primary judge. Mr Smith submitted that his Honour's finding was open on the opinions of the treating doctors, in particular, Dr Youssef. The competing submissions served to highlight the inadequacy of his Honour's analysis of the medical evidence. The basis of the finding on which the assessment is made is obscure (Judgment [26] Red 122.U-Y). The appellant gave evidence of on-going back pain well beyond four months after the date of the accident. (Black 19.U) It was necessary for his Honour to address this evidence and to make findings on it.

26 It is common for cases in the District Court to proceed with the tender of conflicting medical reports, without the authors being required for cross-examination. This places an added burden on the judge, who must carefully analyse the assumptions upon which each report is based against the facts that have been established to determine which opinion is to be accepted. Where the expert evidence is in conflict and no rational basis emerges for preferring one opinion to another, the result is likely to be that the party with the onus fails: Larson v Commissioner of Police [2004] NSWCA 126 per Tobias JA at [48]. His Honour referred to Larson in this respect. (Red 97.J-W) However, he failed to engage in a reasoned analysis of the conflicting evidence. Ultimately, his decision did not depend on discharge of the onus but, rather, on the acceptance of a theory, which was not supported by the expert evidence and which, in any event, overlooked the appellant's direct evidence on the topic. 27 In my opinion, the three bases of challenge identified by Mr Andrews have been made good and the appeal should be allowed. The parties were agreed that, in this event, the proceedings should be remitted to the District Court for a new trial. 28 Grounds 2, 9 and 10 challenged the admission in evidence of the "report of Dr Dowda". Dr Dowda assessed the appellant for the Medical Assessment Service. The reference to his "report" is to his Certificate of Determination of a Medical Assessment issued on 5 July 2007 and the Statement of Reasons thereto. (Blue 284-303) Mr Andrews acknowledged that the Certificate is admissible under s 61 of the Motor Accidents Compensation Act 1999 (NSW). At trial, Mr Andrews objected to the admission of the Statement of Reasons. On the hearing of the appeal, Mr Andrews did not contend that the statement of reasons were not admissible, but, rather, that because Dr Dowda was not a compellable witness (s 59A(2) of the MAC Act) the primary judge should have acceded to the application to exclude the statement of reasons under s 135 of the Evidence Act 1995 (NSW). (Black 3.R-9.G) His Honour admitted the document in its entirety, without referring to the question of discretionary exclusion. It is to be observed in this respect that the reference at trial to s 135 was passing, accompanied by no more than the assertion that the admission of the document would be "undoubtedly prejudicial". (Black 4.E) Since the matter is to be remitted to the District Court, it is inappropriate for this Court to express a view about the way in which the discretion conferred by s 135 should be exercised. 29 For these reasons, the orders that I propose are as follows: ORDERS 1. Allow the appeal. 2. Set aside the verdict and judgment of the District Court given on 13 December 2007 and remit the proceedings to the District Court for determination of the quantum of the appellant's damages. 3. The respondent is to pay the appellant's costs of the hearing below and of the appeal. The respondent is to receive an indemnity certificate under s 6 of the Suitors' Fund Act 1951 (NSW) if qualified. 30 SACKVILLE AJA: I agree with Bell JA.

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