Nominal Defendant v Clancy

Nominal Defendant v Clancy - [2007] NSWCA 349 - NSWCA 2007 case summary — Zoe

[13]

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):

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
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
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
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

[14]

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

[16]

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 [2003] HCA 22; (2003) 214 CLR 118 referred to
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].
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].
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].
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].
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].
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
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

[28]

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]).

[32]

At page three he continued: '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….

[37]

If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated … [M]ore elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. …" [emphasis added] 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.

[39]

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 and statements and medico legal reports both in her workers compensation and motor accidents claim." 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: "Q. But what was significant to you was at some point of time an alteration in symptoms pre to post accident? Is that correct? A. Correct." 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: "102. I have found the causation issue a difficult one. Ultimately I am persuaded, on the balance of probabilities, that the accident did lead to an aggravation and a worsening of the plaintiff's pre-accident right shoulder problem, and that the defendant is liable for such damage as flows from that. I have reached that view for these reasons: (a) The plaintiff had a genetic disease which pre-disposed her to ligamentous laxity or a laxness in the elasticity of her ligaments. (b) Patients with that condition have a predisposition to the pathological and symptomatic condition called MDI. (c) Before the accident she suffered (see the evidence of Dr Sonnabend and Dr Hitchen) some glenohumeral instability because of her ligamentous laxity. (d) This was accompanied by secondary rotator cuff impingement and subacromial bursitis. (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. (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. (g) A traumatic event, such as a motor vehicle accident, may stretch parts of a shoulder beyond their elastic limit. This sets in train symptomatic multidirectional instability, as more and more fibres become stretched beyond their elastic limit. The strain on adjacent fibres increases, and they fail sequentially, setting up a chain reaction, ultimately in symptomatic MDI; (see evidence of Dr Sonnabend). (h) Such symptoms do not arise immediately necessarily, but develop over weeks or months, up to six months; (see Dr Sonnabend) following the trauma. (i) Before the pre-accident bursitis had been cured, the accident occurred. (j) The collision was of such force that she suffered considerable aggravation to her pre-accident wrist condition, such that of itself the wrist condition was sufficient to prevent a return to work for over a year. Even when she saw Dr Zicat on 15 March 2000, the wrist continued to be the greatest source of her pain, according to what he has recorded. (k) The plaintiff suffered no shoulder instability (described by the doctors as a 'ball slipping out of socket') before the accident. (l) She did suffer from such instability after. Although the evidence as to when this first began is unclear, I consider, as I have found, that it was in June 1999, at the time when there is a record of shoulder instability in the chiropractor's notes. (m) The plaintiff suffered some pain in her right shoulder before the accident, indeed, pain of severity. (n) Because her main injury was to her right wrist, and she had been suffering right shoulder problems immediately before the accident, I do not consider that the plaintiff saw the accident as having caused any significant increase in right shoulder symptoms, and found it unsurprising when the right shoulder symptoms continued. (o) The chiropractic letters and notes for the 17th and 19th February 1999 however suggest, and I infer, as I have noted, that her right shoulder was a matter that she complained of after the accident and was responsible for and caused increased pain, as recorded. I have noted also the reference to the increase in inflammation in what I have taken to be the right shoulder, in part of the history taken just after the accident. (p) As the right wrist continued to be the main source of pain, it was that which continued to cause the plaintiff most concern. Further, she became more depressed than she had been. She needed removal of a device from her right upper arm, and she learned in May 1999 that she had a genetic disease which required her to take blood thinning drugs and which she understood might cause loss of a limb through gangrene. So her life was something of a mess in early June 1999 when she attempted suicide. I do not consider that she would have been in a good state of mind in the months following the accident. (q) In any event she continued to complain to her chiropractor from time to time of right shoulder pain. That, on occasion, she complained of left shoulder or bilateral shoulder pain does not argue against the thesis of a causal connection. (r) Her GP notes complaints of right shoulder pain on several occasions in late 1999, and she complained of bursitis on at least one occasion, in the present tense, in the months immediately following the accident. (s) Though Dr Sonnabend did not have the complete pre-accident and post accident history when he gave his written reports, I am satisfied that he had most of it, in particular the MRI study done on 5 February 1999. Although he initially had a history of right shoulder symptoms showing up earlier than the evidence suggests, and a lack of symptoms immediately before the accident, I took his oral evidence to be, following the cross-examination, if there was an increase in shoulder pain, and dislocations occurred in anything up to six months, that would make the accident more likely than not to be the cause. As I have found, there were within six months both a dislocation and an increase in pain. (t) There is no other traumatic event to explain the outcome. The sequence of events suggests to me there was a causal connection and that the accident was probably the cause rather than, as the defendant contended, the normal course of the condition, or a fall from a chair, as was put to Dr Sonnabend. (Counsel for the defendant did not, in address, rely on the latter). (u) Dr Sonnabend says in the normal course the condition would have got better. (v) Though she had pre-accident right shoulder pain, she had worked full-time since October 1998 and before that, part-time since mid 1998. The defendant did not suggest she had ever lost time from work because of right shoulder problems, although it was clearly severe enough to cause her to get household help and to stop some physical activities. (w) Given she continued to have right shoulder pain after and had had it before, it is consistent with human affairs, I think, for her to have assumed, for a time at least, that she had the same problem as before and not to see the accident as the cause, especially given, as Dr Sonnabend says; the symptoms do not necessarily come on for up to six months after a traumatic event. (x) Although the plaintiff is recorded in November 1999 as saying 'Pain in the right shoulder was the same as before,' that does not mean its cause was not the accident, given the bursitis in the normal course would have got better on the evidence of Dr Sonnabend, which I accept. 103. Although, as I have noted, I treat her evidence with great caution, given the above matters I do accept her evidence that she did suffer some increase in pain and some subluxation in the six months following the accident." 21 There were these three issues identified as critical: (a) the trial judge's treatment of the condition of the respondent's right shoulder before the accident; see summation at [102(c), (d), (e), (f), (k), (m) and (n)]; (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).

[55]

Accordingly his Honour said he did not reject the respondent totally in areas unsupported by contemporaneous records, but treated what she told him, especially about the period just before and in the one year post accident "with very considerable caution" (at [101])." 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'.

[66]

The plaintiff's mother, in cross-examination, said that the plaintiff complained to her of other dislocations after she returned to work in August 1999 with Hanley Moir. I accept her mother's evidence. That period of employment was between August and November 1999. I think it probable, and I find, that the first right shoulder dislocation occurred in June 1999, and that the reference to 'L' or 'left' in the chiropractor's notes is erroneous and probably refers to the right." [emphasis 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.

[87]

27 Thus I see the reports as suggesting, and I am satisfied that they do show, that the plaintiff complained to Dr Eisman after the accident about an increase in right shoulder pain." (Italics and emphasis in original). 35 I need now to deal with this and related evidence in more detail, insofar as it bears on the trial judge's finding on the timing and extent of any complaint of right shoulder pain. There is first the respondent's own evidence (Black, 129-133). Then there was Mr Eisman's letter of referral to Dr Ridhalgh of 19 February 1999. That follows a pre-accident consultation of 15 February 1999, the accident being next day. The appellant contends that before the accident the respondent was already suffering from disabling right shoulder problems. Their onset was said to be caused by her employment at the pathologist Hanley Moir or coinciding with the commencement of that employment. 36 There was indubitably right-shoulder pain pre-accident. But the trial judge was able to be satisfied on the evidence (at [102] quoted above) that, along with her underlying ligamentous laxity, this was attributable to secondary rotator cuff impingement and subacromial bursitis. Any instability in the shoulder at that point was "minor". Importantly, absent the accident, Dr Sonnabend's prognosis for resolving those conditions was good, being simply long term exercises. The trial judge accepted that evidence. 37 The trial judge accepted Dr Sonnabend's evidence that a traumatic event like a motor vehicle accident, may stretch parts of a shoulder beyond their elastic limit. There was no evidence of either subluxation or dislocation before the accident. 38 While the appellant asserted that subluxation or dislocation or the condition leading to them, namely MDI, were an inevitable consequence of the respondent's pre-existing condition the trial judge concluded otherwise, preferring Dr Sonnabend's evidence over Dr Hitchen. 39 That conclusion can be tested against two factual issues: (a) whether, if at all, the respondent complained of increased right shoulder pain in the first few months after the accident, and the significance of that in terms of whether the accident was a causal factor in the respondent's right shoulder condition; and (b) when, after the accident, her right shoulder first subluxed, and the significance of that in terms of whether the accident was a causal factor in the respondent's right shoulder condition. 40 McColl JA reviews the evidence relied on by the trial judge on both these issues, concluding: (a) there had been (i) no complaint of increased right-shoulder pain to any of the numerous medical practitioners over the ten or so months to the end of 1999, and (ii) no complaint that her right shoulder had been injured in the accident; (b) the chiropractor's notes and the referral letter of 22 February 1999 to Dr Ridhalgh, properly interpreted, did not leave it open to the trial judge to infer that the letter supported a complaint by the respondent of increased pain in her right shoulder after the accident; " rather, the notes record her complaint of injury to her right wrist in the accident, a complaint consistent with the other contemporaneous accounts she gave to medical practitioners and others "; (c) there were anomalies between Mr Eisman's notes when compared to his letter to Dr Ridhalgh "such as to cause [her Honour] to doubt the accuracy of the latter"; (d) it was not open to the trial judge to interpret Mr Eisman's notes of 17 June 1999 as a reference to the respondent complaining at that time of her right shoulder dislocating; such entry did not support the respondent's case and was inconsistent with the bulk of contemporaneous material; (e) the subluxation which first occurred after the accident should be dated by reference to when the respondent's GP (Dr Bloom) first referred her to Dr Sonnabend, namely towards the end of the year (being 1999) and not earlier in June 1999 as the respondent's mother testified and the trial judge accepted; and (f) the trial judge erred in failing to draw an adverse inference from the respondent's failure to call her general practitioners to give evidence concerning the issue as to when her right shoulder first subluxed, so that "her failure to do so cast doubt on her and her mother's account of when her right shoulder first subluxed" so that the trial judge "ought … to have subjected their evidence to even closer scrutiny in the light of this evidentiary omission". 41 I turn now to these findings, identified as (a) to (f) below, in order to explain why I respectfully differ in the conclusions reached.

[89]

[100] As the defendant's counsel noted, according to the written medical evidence, the first time she attributed shoulder problems to the accident was in March 2000. But it does not follow that the accident did not cause shoulder problems. As I have noted, much was happening in her life in the first half of 1999, and the wrist problem was overwhelmingly the main problem that year in preventing her return to work. I should note in this context, that though on occasions she attributed, as did some doctors, her increased shoulder pain to having to favour her injured right wrist after the accident, that causative link was not relied on by senior counsel for the plaintiff." 43 As I have said, it is understandable that someone in the respondent's position, with a pre-existing right shoulder condition, bursitis, itself very painful though readily curable with long-term exercise as Dr Sonnabend concluded, and suffering the immediate symptoms of a painful right wrist, and other strains in her life, would as a lay person fail to make the connection of her subluxing right shoulder to the accident. This is so whenever subluxing precisely first occurred. Even when she saw Dr Zicat on 15 March 2000, the wrist continued to be the greatest source of pain, according to what he has recorded (Judgment [102(j)]). The gradation of increased pain, in a right shoulder that had, pre-accident, already experienced significant pain from bursitis, must be difficult for its victim to discern. 44 Though the trial judge had reservations about the respondent as a witness, due to her defective memory, his Honour nonetheless was not persuaded she was dishonest (Judgment [101]). Those reservations should in no way discount the advantage he had in assessing her credibility. The trial judge's advantage comes into play, more especially when assessment of that witness's evidence may be the more difficult; here in separating the credible from the less credible from a witness who is not lying but whose memory is defective or incomplete. That assessment still requires considerable caution, and evidence from such a witness in particular must be tested against contemporaneous records. That was clearly recognised by the trial judge. 45 Turning to those records, listed by McColl JA in her judgment, these in my opinion do not yield any incontrovertible fact refuting the respondent's explanation. Nor does the cumulative effect of those records (both in what they include and do not include) make the respondent's explanation for lack of complaint, accepted by the trial judge, glaringly improbable. It must be remembered that while the respondent bore the legal onus, the evidentiary onus remained with the appellant in the disentanglement of the respondent's pre-existing condition from any contribution by the accident. Given that evidentiary onus it was in my opinion for the appellant to take steps such as calling Mr Eisman or her GP's, even if it be accepted that as her doctors they were necessarily in her "camp", though independent professionals. 46 In any event the evidence of absence of complaint of increased pain, or simply of pain from the right shoulder, was not all one way, depending on how the evidence was interpreted. The trial judge interpreted Mr Eisman's notes and reports as evidence of just such complaint, in circumstances where his absence as a witness was not, as the trial judge noted, the subject of adverse comment by counsel for either party. The trial judge's approach is summarised by McColl JA in these terms: "The primary judge concluded that the respondent had suffered increased right shoulder pain after the motor vehicle accident because:

[100]

Upon physical examination of the patient's upper extremities, inclusive of both shoulders , the following was observed: '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.'" [emphasis added] 50 The trial judge does however quote this paragraph when dealing with the two reports as well as the notes, comprehensively in [20] to [27]. I have earlier quoted those paragraphs in full. Significantly, Mr Eisman under "Physical Examination" observed increased inflammation in the right shoulder in his second report, (as compared to his first report), a matter noted also by McColl JA as referring to the respondent's right shoulder. Moreover, in the second report Mr Eisman, in adding to the list of disabilities under the heading "Diagnostic Expression", refers specifically to "hyper-extension to the right hand and oedema"; he does not use the expression "upper extremities" to refer to the hand. That places yet further doubt on interpretation of the second report as referring under "upper extremity" only to her hand. 51 McColl JA then considers Mr Eisman's clinical notes. Her Honour finds significant that they make "no mention of the respondent complaining of her right shoulder as a consequence of the motor vehicle accident". Her Honour does so for two purposes: (a) to base her Honour's conclusion that " when one compares Mr Eisman's clinical notes with his letter to Dr Ridhalgh of 22 February 1999, it was not open to the primary judge to infer that the letter supported a complaint by the respondent of increased pain in her right shoulder after the accident ", but " rather the notes record her complaint of injury to her right wrist in the accident, a complaint consistent with the other contemporaneous accounts she gave to medical practitioners and others "; and (b) to base her Honour's conclusion that "the anomalies between Mr Eisman's notes when compared to his [second] letter to Dr Ridhalgh are such as to cause me to doubt the accuracy of the latter". Her Honour then observes that: "The notes are consistent with the respondent's complaints after the accident about her wrist having been injured. Moreover the fact the respondent had increased range of movement in her right shoulder on 22 February 1999 is inconsistent with her having suffered further injury to her shoulder in the accident." 52 I respectfully differ in relation to both propositions. The report of 22 February 1999 to Dr Ridhalgh earlier quoted was in my view clear and unequivocal. I refer particularly to what was said under the heading "Chief Complaint" quoted below: " Chief Complaint

[101]

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." (emphasis added) 53 This follows the earlier reference in the report which supports the respondent having complained of injury to her right shoulder: "She however states that her right arm and upper extremity were re-injured". I say this bearing in mind that "upper extremity" does not to my mind mean simply "hand" in that context, for the reasons I have explained. 54 While clinical notes, as McColl JA observes, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive. I do not consider that a detailed contemporaneous report should be treated as inaccurate because it does not find its counterpart in the notes. Because the report was so detailed and comprehensive it was open to the trial judge to accept, as his Honour did, that it dealt not only with the wrist injury, but the shoulder injury as well. If the appellant wished to submit otherwise, it could have called Mr Eisman who, as a responsible professional chiropractor, was again not so evidently in the respondent's "camp" as to make it solely for the respondent to call him. This is so particularly given the evidentiary onus on the appellant. 55 I would add that clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor is likely to have been written with more deliberate consideration than rough notes Here, moreover, McColl JA observes, parts of the notes are "almost impossible to read". These observations become relevant in considering the notes of 17 June 1999 bearing on subluxation. This is insofar as they contain the reference "(P) from (L) sublux" with overwriting over the (L) in one place (or vice versa); see below. 56 I consider that the notes of 22 February, insofar as they read "O some ROM shoulder" should not be construed as of themselves being "inconsistent with her suffering further injury to her shoulder in the accident". That reference is too slender a basis for a finding of inconsistency between notes and the contemporaneous second report. 57 Finally, there is simply no credible reason why Mr Eisman would simply invent reported symptoms of aggravated right shoulder pain following the accident, in his second referral report to Dr Ridhalgh. It would have been quite unethical and unprofessional for him to do so. It was never put to Mr Eisman that he had done so, as neither side called him. That is further reason for reading his reports in accordance with their evident meaning, as did the trial judge.

[109]

Significantly, the respondent's case was that she reported the terrifying incident in which her shoulder subluxed to Dr Bloom the day it occurred. There is no record of any such report to Dr Bloom in the period she identified as being when her first subluxation occurred. The absence of such a record, in my view, tells strongly against the respondent's case as to when her shoulder first subluxed." 60 To this I would respectfully make these observations: (i) subluxation or dislocation by no later than six months after the accident was described by Dr Sonnabend as arbitrary, and not a cut-off point which, if not met, precluded attribution of the subluxation to the accident (Black, 315). Dr Sonnabend's evidence was rather that the longer the period between accident and subluxation the less likely was its attribution to the accident. But here in any event we are talking about an imprecise alternative date, namely " towards the end of 1999 ". Thus, with the accident mid February 1999, and the later date being of the order of November 1999, we are talking of around nine months on this hypothesis rather than six months, hardly a critical difference on Dr Sonnabend's evidence; there is moreover reference in the mother's cross-examination to the respondent complaining to her of other dislocations after she returned to work in August 1999 with Hanley Moir, which the trial judge expressly accepted (Judgment [67]). That could well have been within the six months. (ii) second, the reference to "L" (or left) being written over by "R", or vice versa, and the other references to "L" in the notes of 17 June 1999 and the further references in the entry of 19 July 1999 to pain "(P)" in both shoulders "esp in (L) (left)" fall well short of incontrovertible facts or uncontested testimony. This does not rise to the level of evidence of the kind which would justify setting aside the credibility finding of the trial judge that subluxation occurred in June 1999 or render that finding glaringly improbable. This is so, even without regard to the evidentiary onus on the appellant; (iii) third, while the absence of any written record of Dr Bloom (or Dr Naim) to the subluxation in the period identified (June 1999) is of some significance, it was for the appellant, in my view, to call Dr Bloom, given the evidentiary onus on the appellant with respect to the disentanglement. Clearly enough 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; see Falasca v Morrissey [1998] ACTSC 35; appeal dismissed [1999] FCA 27. The question is whether the accident could be eliminated as a contributory cause of the right shoulder injury, and of consequent subluxation. This could be by the appellant demonstrating not only absence of any complaint of increased pain in the right shoulder, but also too long an interval between accident and first subluxation as to eliminate the accident as even a possible contributory cause. Instead the appellant needed to establish that the right shoulder pain was not to be attributed entirely to bursitis and its sequelae and that the subluxation and right shoulder pain were an inevitable consequence of her pre-existing condition, independent of the accident. This the appellant needed to do at least to a prima facie level. Until then, the respondent was not "required to explain or contradict something" so as to invoke the rule in Jones v Dunkel with regard to calling one or both of her GP's, accepting for this purpose that they were in her "camp". The matters advanced by the appellant to cast doubt on whether subluxation first occurred in June 1999 do not, to my mind, constitute facts "requiring an answer"; compare Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA18; (2000) 200 CLR 121 at [51] approving the following statement in Cross on Evidence: "[T]he rule [in Jones v Dunkel ] only applies where a party is 'required to explain or contradict' something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts 'requiring an answer'."

[110]

(iv) Finally, I would agree with the trial judge's observation at [102(q)]: "(q) In any event she continued to complain to her chiropractor from time to time of right shoulder pain. That, on occasion, she complained of left shoulder or bilateral shoulder pain does not argue against the thesis of a causal connection." 61 I turn now to the final line of attack against the trial judge's finding. It is two-pronged. The first is that the appellant's case should have been accepted that it was not the accident, but the respondent's return to work which caused her right shoulder to flare up again. A sufficient answer to my mind is that, accepting the respondent's return to work "caused" her right shoulder to flare up again, that is still consistent with the respondent's case. That is, the accident caused the MDI, or made it no longer amenable to simple cure by exercise. It was this that rendered her vulnerable to a flare up from her returning to work. That the work was under restricted duties further weakens the case for treating work as a cause of any right shoulder injury, as distinct from work precipitating the manifestation of its symptoms. 62 The second line of attack, accepted by McColl JA, is that the trial 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". That attack, as McColl JA observes, is associated with the complaint that the trial judge failed to give adequate reasons. The lack of reasons challenge centred on what was said to be the failure of the trial judge to consider the appellant's case. That case, or hypothesis, was that the respondent's MDI was caused not by the accident but by her lengthy swimming history, as well as by her work duties. 63 The steps in this challenge start with citing Dr Sonnabend's agreement in cross-examination (Black, 316) that, as to MDI "more often than not it's not related to macro trauma … people now would say it's due to microtrauma rather than no trauma … repetitive activity instead of major injury" (Black, 316). Swimming was given as the most common example of repetitive activity (Black, 318). Reliance was then placed by the appellant on Dr Sonnabend's further answers in cross-examination, particularly when presented with a set of assumptions (Black, 321P to 325P quoted below) and also on his final answer in the sequence of questions and answers (Black, 324M-P). This sequence precedes Dr Sonnabend being asked to assume a fall off a chair in June 1998. However, as the latter did not feature in the appellant's argument on appeal nor in final address below, no doubt because of Dr Sonnabend's scepticism about the chair fall as a causative or precipitating factor independent of the car accident, the chair fall hypothesis may be considered to be now irrelevant. I quote the relevant part of the transcript of the cross-examination: Q. I want you to assume a number of matters for me so that I can ask your opinion. Do you understand? A. Mm'hm.

[130]

Q. Would you agree with that? A. You'd have to assume that both [accident and fall from chair] were relevant in that context. You'd have to assume that the fall from a chair was a significant part of it, yeah." 64 However in assessing these questions and answers in the context of the appellant's challenge, the following must be taken into account: (i) while accepting that repetitive swimming may cause what Dr Sonnabend preferred to call "shoulder instability", at no point does Dr Sonnabend concede that a traumatic event like a car accident was incapable of causing MDI or of aggravating MDI. Indeed his evidence, particularly his reports, was clearly to the effect that a car accident could cause MDI involving shoulder instability, or bring about aggravation of that condition and did so here; (ii) Dr Sonnabend, particularly in earlier evidence (Black, 321B-P and earlier at 318S to 319E) makes clear there were semantic difficulties in use of the term MDI; that MDI is a manifestation of a very loose shoulder, and of the progressive loosening of the shoulder. Dr Sonnabend characterised the respondent's pre-accident condition as ligamentous laxity with some glenohumeral instability, these predisposing her to the condition called MDI, but which he testified was readily curable, but for the accident, with long-term exercises. That indeed is the critical part of his evidence, which the trial judge accepted as he was entitled to; (iii) when reviewing the respondent's symptoms reported to Dr Ridhalgh, Dr Sonnabend preferred to characterise her pre-existing condition as there having been a rotator cuff injury or rotator cuff inflammation ("inflamed subacromial space and a tight posterior capsule" i.e. bursitis) rather than simply instability (Black, 327E-P). Dr Sonnabend's second report of 17 June 2005 refers to the bursitis and rotator cuff impingement as being in turn secondary to systemic ligamentous laxity. (iv) the assumption put to Dr Sonnabend, namely that "the respondent's condition was essentially unchanged over 10 months following the accident" or that "she was no worse 10 months post-accident", was not in accord with Mr Eisman's evidence as the respondent's chiropractor, as accepted by the trial judge. In my opinion it was open to the trial judge so to find. I say so, given the state of the evidence and notwithstanding the lack of complaint by the respondent, as explained by her attention being concentrated on her injured wrist and being otherwise affected by her other problems in the twelve months or so after the accident. (v) Dr Sonnabend first examined the respondent on 24 March 2000. He noted that she had a history of having experienced difficulty with her right shoulder since late 1998. After referring to the motor vehicle accident he recorded:

[136]

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 …" 65 Taking those matters into account, and the presumption of fact in favour of the respondent, I do not consider that it was 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; that is to say going beyond the reasons his Honour did give including for preferring Dr Sonnabend's expert evidence as the basis for his finding on causation. Those alternative explanations advanced by the appellant were for the appellant to establish at least at a prima facie level in order to satisfy the evidentiary onus upon it. This in my opinion the appellant failed to do. To paraphrase McHugh J in Fox v Percy (at 146 [90]) these were not matters, nor were those earlier identified in relation to Mr Eisman which, to my mind 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".

[138]

OVERALL CONCLUSION 67 I would disallow the appeal and order as follows: (1) Appeal dismissed. (2) Appellant to pay respondent's costs. 68 McCOLL JA: The Nominal Defendant appeals from a judgment of his Honour Judge Walmsley SC, sitting in the District Court of New South Wales, in which he awarded the respondent, Vashti Clancy, $634,522.64 by way of damages in respect of injuries he found she had suffered as a result of a rear end motor vehicle collision on 16 February 1999. 69 The identity of the vehicle which collided with the respondent's was never established, hence the action against the Nominal Defendant. Due search and enquiry was not in issue and, although liability was put in issue in the defence, the main issue before the primary judge was whether the respondent had suffered injury to her right shoulder as a result of the accident. The primary judge found the respondent had proved the collision had occurred. He held that the other driver was negligent, thus finding in the respondent's favour on the issue of liability. The appellant does not challenge that finding. 70 In March 2000 Dr Sonnabend, an orthopaedic surgeon, diagnosed the respondent as suffering a severe multi-directional glenohumeral instability ("MDI") in her right shoulder. He operated upon her shoulder and performed a capsular shift procedure. In Dr Sonnabend's opinion the motor vehicle accident either precipitated the MDI or, at least, severely exacerbated a pre-existing minor shoulder condition. 71 This was the substantial area of dispute at trial. The appellant resisted the proposition that the respondent's MDI was caused by the accident. Rather, it argued that condition was the inevitable sequel of a pre-existing condition from which the respondent suffered, methylene tetrahydrofolate reductase deficiency, associated with marked systemic ligamentous laxity. It contended at trial that the development of the respondent's problems in her right shoulder coincided with her return to her work after the accident at Hanly Moir, a pathology service which included taking blood and that it was, more probably than not, her work which precipitated the MDI. It called evidence from Dr Paul Hitchen, also an orthopaedic surgeon, who opined that there was no causal relationship between the motor vehicle accident and the MDI. 72 The appellant's substantial complaints on appeal are that the primary judge erred in finding that the respondent had established that the motor vehicle accident caused her to suffer MDI in her right shoulder and, secondly, that the primary judge failed to consider the appellant's case, alternatively he failed to give adequate reasons for rejecting it. 73 The appellant does not seek to challenge the quantum of damages the primary judge awarded the respondent in the event that its appeal otherwise fails. 74 The appellant did not dispute that as a result of the accident the respondent suffered an aggravation injury to her right thumb and a pre-existing wrist condition which of itself was sufficient to cause her to stop working and seek medical treatment. That condition recovered within 12 to 18 months post-accident and did not represent any significant long-term problem. The primary judge said that if he had not found for the respondent in respect of the right shoulder issue, he would have entered judgment for her for $59,943.20 in respect of the wrist condition issue. The appellant does not dispute that that was an appropriate award for the wrist condition. In the event it is successful on appeal, it contends that judgment ought be entered for the respondent in that amount alone, or that the matter should be remitted to the District Court for rehearing. The judgment below 75 Having regard to the appellant's complaint that the primary judge failed to give adequate reasons for rejecting its case, it is necessary to scrutinise the primary judgment closely. 76 The primary judge noted (at [6]) that although the appellant conceded the motor vehicle accident caused an injury of severity to the respondent's right wrist, it strongly contested her claim that the accident also injured her right shoulder, saying she never complained of any worsening of her shoulder condition until a year after the accident. Although the appellant acknowledged that the respondent had a very serious right shoulder condition by the time of trial, it argued that she would have had it anyway, that she was already suffering early stages of it before the accident and that the accident made no material contribution, nor worsened, that condition. It also relied upon the fact that the respondent's recollection of relevant events was "quite flawed". 77 The primary judge then recited the respondent's personal history. In short, it is fair to say that the respondent had had bad luck with her right arm. She had broken it in October 1983 when she was ten, and injured it again a few days later. In the mid-1990s her right thumb was fused and the second joint removed. In 1997 and 1998 she underwent surgery to her right wrist. In mid-1998 she began to suffer right shoulder problems which persisted up until the accident and, the primary judge found, following it. Shortly before the accident her right shoulder condition was diagnosed as bursitis for which she was treated with a cortisone injection to which she reacted poorly. On 5 February 1999, a few days before the accident, an MRI scan of her right shoulder was consistent with bursitis: primary judgment at [7], [10]. 78 The primary judge identified the significant issue on causation he had to resolve as being whether the respondent complained of right shoulder pain, or increased right shoulder pain, in the first few months after the accident. 79 The primary judge summarised the history of medical problems the respondent had had with her right arm prior to the accident as follows: "7. The plaintiff was born on 4 August 1973 and is now aged thirty-two. … In the years leading up to the accident she had a number of physical problems requiring involvement of orthopaedic surgeons. In October 1983 she broke her right arm. And a few days later she injured it further. She did, however, regain use of the arm and was later involved in school sports, such as netball and gym. … 10. She had a motor vehicle accident in 1992, but there were no significant injuries. In the mid 1990s she underwent surgery to her right arm. That involved a fusion of her right thumb and removal of the second joint. In 1997 she underwent surgery to her right wrist. She had right wrist surgery twice in 1998. In mid 1998 she began to suffer right shoulder problems. They persisted right up until the accident and following. Shortly before the accident the right shoulder condition was diagnosed as bursitis. It led to her having a cortisone injection, to which she reacted poorly. On 5 February 1999, a few days before the accident, she had an MRI scan of her right shoulder. It was consistent with bursitis. 11. A specialist orthopaedic surgeon, Dr Ridhalgh, wrote to her general practitioner on 8 February 1999 as follows: 'Mrs Clancy's shoulder has continued to give troubles. The pain from the injection has settled but she is left with the residual shoulder pain. Clinically She still has an impingement sign and weakness of external rotation. I would like her to attend physiotherapy and I will see her in two weeks time or sooner if there are problems.' 12. She in fact saw a chiropractor, Dr Eisman, at the City Clinic on Crown, Dr Ridhalgh being the referrer. Dr Eisman in turn reported to Dr Ridhalgh following examinations of her on 15, 17 and 19 February." 80 The primary judge dealt with the issue whether the respondent had complained of increased pain in her right shoulder after the accident 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.

[144]

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 Upon physical examination of the patient's upper extremities, inclusive of both shoulders, the following was observed: '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.'

[150]

27 Thus I see the reports as suggesting, and I am satisfied that they do show, that the plaintiff complained to Dr Eisman after the accident about an increase in right shoulder pain." (Italics and emphasis in original). Mr Eisman was a chiropractor. 81 The respondent was injured on a work journey and claimed workers compensation. At trial the appellant argued that her claim that her right shoulder was injured in the accident was inconsistent with contemporaneous reports she had completed for workers compensation purposes. The primary judge dealt with that evidence and other contemporaneous material as follows: "28. As the accident occurred on a work journey, she claimed worker's compensation. A medical certificate of 19/2/99 does not refer to right shoulder problems. 29. She saw Dr Hargreaves again on 23 February and complained then only of increased problems with her right wrist. 30. The plaintiff tendered an account from the chiropractor from 8 March 1999. It is apparent she continued to go to him throughout 1999. All of the accounts carried this reference: 'Date of injury 16/2/09 [sic], injury right shoulder.' When it was tendered I took Mr Bartley of Senior Counsel, who appeared for the plaintiff, to concede that it was of slight weight on the causation issue. Mr Fitzsimmons submitted it had none. I think it has, as Mr Bartley submits, slight weight. 31. Several weeks after the accident the plaintiff changed her pain relieving drug to Tramadin from Pethidine. She had a brace on her wrist for some weeks and could not use her right arm freely in that time. The chiropractor's notes suggest that when he saw her on 22 February 1999 her right shoulder was examined and found to have an increased range of movement since her previous visit. He noted on 10 March 1999 that she was in distress due to pain in her right arm. 32. Her worker's compensation insurers had her seen by a consultant surgeon, Dr Thomas Davis. On 19 March 1999 she told him of the accident and complained of pain in the right wrist and restricted range of movements in the hand, wrist and forearm. She was having physiotherapy, analgesia, such as Pethidine, and said she had been given Zoloft, an antidepressant. I infer that she complained to him on that visit of pain in her right shoulder. I take this from this statement in his report: 'She also has bursitis in the right shoulder'. I note the present tense. That, of course, as Mr Bartley submitted, was the label attached by doctors to her pre-accident shoulder complaint. She did not specifically complain to him, I infer, of increased right shoulder pain, but the present tense suggests that she was still suffering from right shoulder pain when she saw him. 33. She was contacted by a worker's compensation loss assessor on 1 April 1999, and in cross-examination she conceded she had said this to him: 'I immediately felt extreme pain in my right wrist at the base of the thumb. I suffered no other injuries'. 34. She mentioned, however, to the worker's compensation assessor that she had a right shoulder condition too. She said: 'I also have bursitis in the right shoulder due to the way I use my arm at work and commenced physio at the City Clinic...I am not currently receiving treatment on the right shoulder as I am resting the arm by not being at work'. 35. She had minor symptoms for an unconnected matter on her upper right arm on 3 May 1999. A document from CRS Australia tendered by the defendant has this entry for 4 May 1999: 'Phone call to Steven Matthews, physiotherapist. He stated that Vashti (the plaintiff) was initially seeing him because of shoulder problems because of how awkwardly she takes blood. Considering previous history and damage caused in accident, it would be difficult to go back to blood taking. He stated that she has returned CIL movements but her strength is reduced. He felt a change in some of the duties would need to be inevitable'. 36. At about this time the plaintiff went to a pain clinic and came under the care of Dr Gronow. He noted the right arm pain and that she was highly motivated to return to work; see his report of 13 April 1999. 37 On 4 May 1999 the pain clinic wrote to Dr Hargreaves, speaking mainly of the right forearm, but noting also: 'Restricted range of motion of her right shoulder to 120 degrees abduction.' 38. That suggests to me that she continued to complain of some right shoulder problems, although the right forearm was her main concern. Additionally, according to that report, she was suffering a significant degree of emotional distress and was seen as highly dependent on analgesic drugs. 39. A Motor Accident Authority certificate of 14 May 1999 by her GP described the injury as: 'Right wrist injury - full extension injury'. 40. The surgery on her right arm, which she had in April or May 1999, left her with a thrombosis on her left arm, but the relevant area had returned to normal by 11 June according to her physician, Dr McGrath. 41. Her GP, in a questionnaire dated 14 June 1999, diagnosed inter alia: 'Right upper limb - regional pain syndrome'. He continued: 'Complex pain management problem - already has a severely compromised right forearm before the motor vehicle accident. Considering the long convoluted history, prognosis is poor' ."

[151]

82 In May 1999 the respondent was diagnosed with the genetic disorder to which I earlier referred. That diagnosis had a profound effect on her as the primary judge detailed: "42. In May 1999 the plaintiff learned for the first time that she had a rare genetic condition called Methylene Tetrahydrofolate Reductase Deficiency. This condition can lead to ligamentous laxity. Learning for the first time that she had this condition was a shock for her, because the consequences can be very severe. She was warned, among other things, that she may lose a limb through gangrene. She became very depressed about this. She was already suffering depression from her right wrist problem. 43. In June 1999 she tried to commit suicide by injecting Pethidine and was admitted to hospital. She was soon discharged however. 44. On 10 June 1999 the chiropractic notes say: 'Plaintiff still with shoulder and arm pain'. I note there is no reference to which side the pain was on. However an entry in the chiropractor's notes for 12 June reads: 'Pain and stiffness on right side of neck, stiffness to shoulder blade'. 45. I infer the reference is to the right shoulder blade." (emphasis added) 83 The respondent gave evidence that not only did she have right shoulder pain from a time shortly after the accident but also, that from about mid-1999, she experienced episodes in which her right shoulder would slip out of alignment, or sublux. She also said she suffered a different kind of shoulder pain after the accident, but had thought that she continued to have bursitis. She said, however, that her main concern, at least in the first few months after the accident, had been her right wrist. 84 There was a live issue at trial concerning the question when the respondent's right shoulder first started to dislocate, or, at least, sublux. I interpolate at this point to observe that dislocation and subluxation refer to different mechanisms. Dr Sonnabend explained that "a shoulder that slips partway out and then comes back again is referred to as a sublaxating shoulder, and a shoulder that slips all the way out and doesn't come back again is dislocated". (Black 303T) While the parties suggested (SEE ESP ORANGE 34) that at times both the medical witnesses and the primary judge confused the two concepts, neither suggested that confusion materially influenced the outcome. 85 The primary judge returned to the significance of the time the respondent first experienced right shoulder pain, or increased right shoulder pain, in dealing with the dislocation issue: "46. … [I]n general terms, the presence or absence of complaint of right shoulder pain, or increased right shoulder pain, and right shoulder dislocations in the first few months post accident, was regarded as a significant matter on the causation issue by both experts, especially Dr Hitchen, the defendant's expert. So far as the plaintiff's expert, Dr Sonnabend, was concerned, a lack of early complaint of pain and dislocations was not so significant on that issue, but I took him to say that complaints within six months would be suggestive of a causal connection. The plaintiff says, but the defendant disputes, that she had both continuing and worse shoulder pain after the accident and that shoulder dislocations occurred within that six months period. The defendant, on the other hand, submits that the shoulder dislocations (or subluxing) did not start for about a year after the accident, and that there was no relevant increase in shoulder pain either, within the six months period. Rather, the defendant submitted that what ultimately happened to the plaintiff was no more nor less than the manifestation of the natural onset or the natural progression of the condition which she had prior to the accident. 47. I have interrupted the narrative to point out those matters because I am about to turn to the next entry in the chiropractic notes, and it is one which I consider has some significance. 48. The first entry in any medical notes concerning shoulder dislocations is on 17 June 1999, that is four months after the accident. The entry in the chiropractor's note is equivocal as to which shoulder. When I say 'equivocal' it is at the very least equivocal. On the face if it next to the word 'shoulder' there appears to have been the letter 'R' written and then overwritten with the letter 'L'. The original records, unfortunately, were not available to me or to counsel, to check this entry. The chiropractor, according to the note, went on to make several more references to the left shoulder in the same entry. On 19 July there is a note of pain in both shoulders, especially in the left. And on 20 July it says: 'Still having neck pain and shoulder pain.' The 29 July notes show a planned return to work with restriction to limit use of right arm, and 6 August notes show an increase in both shoulders, with more pain on the right shoulder, and neck pain."

[169]

The plaintiff's mother, in cross-examination, said that the plaintiff complained to her of other dislocations after she returned to work in August 1999 with Hanley Moir. I accept her mother's evidence. That period of employment was between August and November 1999. I think it probable, and I find, that the first right shoulder dislocation occurred in June 1999, and that the reference to 'L' or 'left' in the chiropractor's notes is erroneous and probably refers to the right." (emphasis added) 87 In early 2000 Dr Sonnabend linked the respondent's right shoulder problems with the motor vehicle accident. He appears to have been the first medical practitioner to make that association. Later that year Dr Bencsik, a consultant orthopaedic surgeon retained to advise the insurer in relation to the respondent's workers compensation claim, also drew that link. The primary judge recorded their 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.

[171]

She saw Dr Bencsik again on 21 July 2000. He recorded this, concerning an event on 7 July 2000: '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.' 73. It is the plaintiff's case that that fall was causally related to the accident since the Pethidine was taken to relieve the right shoulder pain. The defendant concedes that if the right shoulder disability is found to be causally related to the accident, it is liable for the sequelae of that fall. The past treatment expenses are included in an agreed sum for past out of pocket expenses, namely $150,937.67. The defendant concedes it is liable for all of those expenses if I find both right wrist and right shoulder causally related to the motor vehicle accident. Further, the parties have agreed that there are additional future expenses arising from necessary treatment of the right shoulder and the teeth, and these amount to $27,627.35. 74. I took counsel for the plaintiff to concede that the injuries arising from the fall on 7 July 2000 are not compensable if I do not find the right shoulder injury causally related. 75. When reporting about his examination of the plaintiff on 21 July 2000, Dr Bencsik said this: ' 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.' 76 At page five of his report he said this: 'In my opinion there is a relationship between the accident of 16 February 1999 and the current pain which Mrs Clancy experiences in her right wrist. There appears also to be an indirect relationship between that accident and the subsequent subluxation and then dislocation of the right shoulder.' 77 The first medico legal report from Dr Sonnabend is dated 17 November 2000. He said this, inter alia: '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.' 78. He noted the history at page two, which the defendant contests, and he said this: '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.' At page three he continued: '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.' " 88 The primary judge then dealt with a miscellany of medical reports. It is necessary to set out his treatment of those reports having regard to the appellant's complaint that his Honour failed to have regard to the weight of evidence tending against the conclusion that the respondent's right shoulder condition was caused by the accident: "79. The plaintiff saw a neurologist, Dr Coffey, on 1 April 1999, 9 April 1999 and 7 June 1999 concerning an epileptic seizure. She did not complain to him of any right shoulder injury, although she did complain about pain in the wrists; see his report of 23 March 2001. 80. She saw a Dr Locke shortly after the accident. In his report of 26 March 2001 he noted similar complaints. 81. I have earlier noted the plaintiff saw orthopaedic surgeon, Dr Ridhalgh, before the accident, concerning her right shoulder pain. In his report of 21 May 2001 he said this, among other things: 'She presented with increasing pain in the right shoulder which was deep and she had trouble sleeping at night. She described a burning and grinding feeling of the shoulder and if she rolled onto the shoulder there was pain. Three weeks before she had fallen and injured the right ankle and had been hobbling around ever since. At that time she localised pain to the deep aspect of the right shoulder and was tender over the acromion. She had a positive impingement sign and abduction internal rotation was to T12 compared to T8. External rotation was left to right 35 degrees with weakness of power. There was lack of rotation of the forearm bones. She is married without children and used to enjoy aerobics. I felt she had supraspinatus tendonitis and I injected her with local anaesthetic and hydrocortisone. I reviewed her on 1/2/99. She had had a bad reaction to the injection and had severe pain in the right shoulder with trouble sleeping over the weekend. There was no increased weakness or redness or heat about the shoulder and she had an almost full range of movement. On 5/2/99 she had an MRI of the shoulder which showed intact rotator cuff with fluid in the subacromial bursa consistent with subacromial bursitis. She was last reviewed on 8/2/99 with a positive impingement sign and weakness of external rotation. I referred her to physiotherapy. I have not seen this patient since February 1999. Unfortunately I am unable to give a prognosis for this reason.' 82. The plaintiff continued to have problems with her right shoulder through 2001 and experienced chronic subluxation of the glenohumeral joint and she wore a brace, which her engineer father designed and made for her. She continued to take strong analgesics. 83. For medico legal purposes she saw for the defendant Dr Schutz, a general surgeon. Accepting the correctness of her history of severe pain in the right shoulder and right wrist post accident he considered, 'Pre-existing problems may have been marginally aggravated.' He was not cross-examined, and neither counsel referred to his report in address. 84. She came under the care of pain specialist, Dr Cohen. He expressed views on causation in a report of 19 April 2002, but clearly had an incorrect history, namely dislocation in a motor vehicle accident. He was not cross-examined and neither counsel referred to him in submissions. 85. On 18 May 2002 Professor Sonnabend carried out a right posterior capsular shift. Following that surgery she wore a brace for a considerable time. 86. Dr Schutz reported again on 14 June 2002, having received more information. The additional information was not specified but it clearly gave a more accurate history. He then said there was no causal relationship between the accident and the right shoulder problems. This report was not addressed by counsel. 87. Dr Ireland, who saw her on 9 July 2002, took a history that the first subluxation was in December 1999, but apparently at a time when she was working. I have already given my findings but merely note it. It is, I should say, a matter I took into account in the finding that I made about the timing of the first right shoulder subluxation. 88. She had methadone withdrawal symptoms following the surgery in 2002. 89. In 2003 the shoulder was again unstable. Dr Sonnabend discussed her case at an international conference. On 18 November 2003 she had further surgery, which was initially successful in reducing instability, but led to a stress fracture by reason of the graft having been taken from adjacent bone. For that she underwent surgery early this year, namely open reduction and internal fixation of the fracture to the scapula. Reporting about that surgery on 17 February 2005 to the plaintiff's solicitors, Dr Sonnabend wrote among other things: ' Ms Royle's long term prognosis is very uncertain. At present her right shoulder is stable and it would seem reasonable for her to return to activities, both at home and at work, which do not unduly stress the back of the right shoulder. Because of the unusual and rare nature of Ms Royle's underlying metabolic anomaly, it is not possible to offer any accurate long terns prognosis. My 'best guess' is that the shoulder will remain stable, but that Ms Royle may develop shoulder osteoarthritis over many years as a result of the preceding instability and the altered glenoid shape. At this stage Ms Royle requires no ancillary care or ongoing medical or allied treatment. As indicated above however, the long term prognosis is quite uncertain. ' " 89 The primary judge then dealt with the evidence of the parties' experts, the only medical practitioners who gave oral testimony: "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." 90 The primary judge then dealt with the issue of the respondent's credit, which he observed (at [94]) was not of vital importance to his findings. His Honour recorded (at [95]) that the respondent did not have a good memory of the period immediately before and following the accident. He also noted inconsistencies exposed between the respondent's evidence in chief and her cross-examination. On the critical point as to when she complained of increased shoulder pain after the accident, his Honour said: "[98] …As to whether she had in fact complained of increased shoulder pain straight after the accident, she said on occasion that she had not complained of shoulder pain because she had thought her bursitis continued and, further, she said that her right wrist problem was for her a long time and major concern." 91 His Honour concluded (at [99]) that the respondent was mistaken about when her shoulder pain first became significant and when its increase first became significant to her. 92 He noted various inconsistencies which had been exposed between her evidence in chief and her cross examination. On what the appellant submits was a critical point, the fact she did not attribute her shoulder problem to the accident until March 2000, his Honour said: "100. As the defendant's counsel noted, . But it does not follow that the accident did not cause shoulder problems. As I have noted, much was happening in her life in the first half of 1999, and the wrist problem was overwhelmingly the main problem that year in preventing her return to work. I should note in this context, that though on occasions she attributed, as did some doctors, her increased shoulder pain to having to favour her injured right wrist after the accident, that causative link was not relied on by senior counsel for the plaintiff. 101. It is clear her memory was defective. I am not persuaded, however, as the defendant submitted, that she was dishonest. I think with the passage of time she has forgotten incidents and sequences. I formed the impression that she conceded readily when it was pointed out that her earlier evidence was wrong. I do not reject her totally in areas unsupported by contemporaneous records, but I treat what she told me, especially in the period just before and in the one year post accident, with very considerable caution." 93 His Honour concluded: 102. I have found the causation issue a difficult one. Ultimately I am persuaded, on the balance of probabilities, that the accident did lead to an aggravation and a worsening of the plaintiff's pre-accident right shoulder problem, and that the defendant is liable for such damage as flows from that. I have reached that view for these reasons: (a) The plaintiff had a genetic disease which pre-disposed her to ligamentous laxity or a laxness in the elasticity of her ligaments. (b) Patients with that condition have a predisposition to the pathological and symptomatic condition called MDI. (c) Before the accident she suffered (see the evidence of Dr Sonnabend and Dr Hitchen) some glenohumeral instability because of her ligamentous laxity. (d) This was accompanied by secondary rotator cuff impingement and subacromial bursitis. (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. (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. (g) A traumatic event, such as a motor vehicle accident, may stretch parts of a shoulder beyond their elastic limit. This sets in train symptomatic multidirectional instability, as more and more fibres become stretched beyond their elastic limit. The strain on adjacent fibres increases, and they fail sequentially, setting up a chain reaction, ultimately in symptomatic MDI; (see evidence of Dr Sonnabend). (h) Such symptoms do not arise immediately necessarily, but develop over weeks or months, up to six months; (see Dr Sonnabend) following the trauma. (i) Before the pre-accident bursitis had been cured, the accident occurred. (j) The collision was of such force that she suffered considerable aggravation to her pre-accident wrist condition, such that of itself the wrist condition was sufficient to prevent a return to work for over a year. Even when she saw Dr Zicat on 15 March 2000, the wrist continued to be the greatest source of her pain, according to what he has recorded. (k) The plaintiff suffered no shoulder instability (described by the doctors as a 'ball slipping out of socket') before the accident. (l) She did suffer from such instability after. Although the evidence as to when this first began is unclear, I consider, as I have found, that it was in June 1999, at the time when there is a record of shoulder instability in the chiropractor's notes. (m) The plaintiff suffered some pain in her right shoulder before the accident, indeed, pain of severity. (n) Because her main injury was to her right wrist, and she had been suffering right shoulder problems immediately before the accident, I do not consider that the plaintiff saw the accident as having caused any significant increase in right shoulder symptoms, and found it unsurprising when the right shoulder symptoms continued. (o) The chiropractic letters and notes for the 17th and 19th February 1999 however suggest, and I infer, as I have noted, that her right shoulder was a matter that she complained of after the accident and was responsible for and caused increased pain, as recorded. I have noted also the reference to the increase in inflammation in what I have taken to be the right shoulder, in part of the history taken just after the accident. (p) As the right wrist continued to be the main source of pain, it was that which continued to cause the plaintiff most concern. Further, she became more depressed than she had been. She needed removal of a device from her right upper arm, and she learned in May 1999 that she had a genetic disease which required her to take blood thinning drugs and which she understood might cause loss of a limb through gangrene. So her life was something of a mess in early June 1999 when she attempted suicide. I do not consider that she would have been in a good state of mind in the months following the accident. (q) In any event she continued to complain to her chiropractor from time to time of right shoulder pain. That, on occasion, she complained of left shoulder or bilateral shoulder pain does not argue against the thesis of a causal connection. (r) Her GP notes complaints of right shoulder pain on several occasions in late 1999, and she complained of bursitis on at least one occasion, in the present tense, in the months immediately following the accident. (s) Though Dr Sonnabend did not have the complete pre-accident and post accident history when he gave his written reports, I am satisfied that he had most of it, in particular the MRI study done on 5 February 1999. Although he initially had a history of right shoulder symptoms showing up earlier than the evidence suggests, and a lack of symptoms immediately before the accident, I took his oral evidence to be, following the cross-examination, if there was an increase in shoulder pain, and dislocations occurred in anything up to six months, that would make the accident more likely than not to be the cause. As I have found, there were within six months both a dislocation and an increase in pain. (t) There is no other traumatic event to explain the outcome. The sequence of events suggests to me there was a causal connection and that the accident was probably the cause rather than, as the defendant contended, the normal course of the condition, or a fall from a chair, as was put to Dr Sonnabend. (Counsel for the defendant did not, in address, rely on the latter). (u) Dr Sonnabend says in the normal course the condition would have got better. (v) Though she had pre-accident right shoulder pain, she had worked full-time since October 1998 and before that, part-time since mid 1998. The defendant did not suggest she had ever lost time from work because of right shoulder problems, although it was clearly severe enough to cause her to get household help and to stop some physical activities. (w) Given she continued to have right shoulder pain after and had had it before, it is consistent with human affairs, I think, for her to have assumed, for a time at least, that she had the same problem as before and not to see the accident as the cause, especially given, as Dr Sonnabend says; the symptoms do not necessarily come on for up to six months after a traumatic event. (x) Although the plaintiff is recorded in November 1999 as saying 'Pain in the right shoulder was the same as before,' that does not mean its cause was not the accident, given the bursitis in the normal course would have got better on the evidence of Dr Sonnabend, which I accept. 103. Although, as I have noted, I treat her evidence with great caution, given the above matters I do accept her evidence that she did suffer some increase in pain and some subluxation in the six months following the accident. 104. In concluding as I have, I bear in mind the Court of Appeal's treatment of the law of causation and the onus on plaintiff and defendant in State of New South Wales v Burton [2006] NSWCA 12. 105. Thus I find that by reason of the accident, the plaintiff's right shoulder problem which pre-existed the accident, was aggravated, such that she had a much greater problem than she would otherwise have had. The pre-accident condition would probably have been cured within a matter of a few months, I find, absent the accident. I find that the defendant is, therefore, liable for the sequelae, including the multiple surgical procedures, and the injuries to her mouth and teeth she suffered when she fell after having the pain relieving injection for the shoulder related problems in mid 2000. I find that she has been unable to work since 1999 by reason of the injuries and will in the years to come lose some time off work by reason of the symptoms and related osteoarthritis. Further, I find that by reason of the shoulder injuries, she has incurred expenses for treatment and will probably do so from time to time through her life, and she has needed at times and will need home care and nursing care, especially, as to the past, after surgical procedures." 94 His Honour then dealt with the quantum of damages.

[172]

Grounds of Appeal 95 The appellant relies upon the following grounds of appeal: "1. His Honour erred in finding that the evidence established on the balance of probabilities that the accident led to an aggravation and worsening of the plaintiff's pre-accident right shoulder problem, and that the defendant is liable for such damage as flows from that. 2. His Honour's finding that the right shoulder first commenced to dislocate in June 1999 is against the weight of evidence. 3. His Honour erred in failing to consider or properly consider all relevant evidence in coming to his finding when the plaintiff's right shoulder first commenced to dislocate. 3A His Honour misconceived the evidence of the respondent, the respondent's mother, Ms Royle, and Dr Sonnabend when making relevant findings on the issue of causation. 3B His Honour failed to properly consider the appellant's case and/or failed to give sufficient or adequate reasons. 4. His Honour failed to give due weight to the numerous contemporaneous records which did not evidence or support the plaintiff's and her mother's evidence in respect of the plaintiff's right shoulder problems. 5. His Honour failed to draw appropriate inferences in the plaintiff failing to call the plaintiff's general practitioners, Dr Bloom and/or Dr Naim (from the same practice) to give evidence to explain their records of the plaintiff being inconsistent with the plaintiff's and her mother's evidence and assertions in respect of her right shoulder, particularly in light of the contents of Dr Bloom's report of 30 December 1999. 6. His Honour ought not to have accepted the evidence of the plaintiff that she did suffer some increase in pain and some subluxation in the six months following the accident in light of: (a) His Honour's finding that her memory was defective and her memory in the period just before and in the year post accident ought to be treated with very considerable caution; and (b) was unsupported by contemporaneous records over that period; and (c) the amount of incorrect evidence given by the plaintiff in respect of the period just before and in the one year post accident. 7. His Honour erred in finding that the reference 'L' or 'left' in the chiropractor's notes (Dr Eisman, 16 June 1999) refers to her right shoulder and relying on same as being consistent with the plaintiff and her mother's evidence as to when the plaintiff's shoulder commenced to dislocate."

[174]

97 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 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. 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. 98 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. 99 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 and statements and medico legal reports both in her workers compensation and motor accidents claim. 100 The appellant says the primary judge only referred to its case twice. His Honour stated (at [46]), (RED 25W) that the appellant disputed that the respondent had increased right shoulder pain after the motor vehicle accident, contended that the respondent's shoulder did not start to sublux until a year later and argued that what happened to the respondent's shoulder was "no more or less than the manifestation of the natural onset or the natural progression of the condition [the respondent] had prior to the accident". Later he referred to the appellant's contention (at [102(t)]), (RED 44W) that the respondent's shoulder condition was caused by "the normal course of the condition". 101 The appellant complains that the primary judge did not deal adequately, or at all, with the large body of contemporaneous documents which were inconsistent with the respondent's case that her right shoulder started to sublux in or about March 1999. 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). 102 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. 103 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. 104 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. 105 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; (b) that the respondent's left shoulder never dislocated either before or after the motor vehicle accident - a proposition which was not challenged in cross-examination; (O38) (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. 106 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. 107 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. 108 Next, Mr Toomey submitted that the primary judge was entitled to accept the respondent's mother's evidence that the respondent had first complained to her of a right shoulder dislocation at a time close to June 1999. He also argued that the primary judge was entitled to conclude from the chiropractor's note of 17 June 1999 which referred to a left shoulder dislocation that although the letter "L" appeared as the descriptor, the complaint had, in fact, been in respect to the respondent's right shoulder. This was consistent, Mr Toomey contended, with the respondent's evidence (not contradicted in cross-examination) that she had never had any dislocations of her left shoulder, evidence with which her mother agreed, and with the fact that there was no history provided to any doctor or opinion expressed that the respondent had MDI in her left shoulder. Finally, Mr Toomey argued that the primary judge was entitled to prefer Professor Sonnabend's evidence.

[176]

111 An appellate court invited to review the findings of a trial judge on the basis wholly or substantially of the record of the hearing must observe the "natural limitations" that exist in such a case, including the limitations flowing from the disadvantage the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]) per Gleeson CJ, Gummow and Kirby JJ; see also Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449 (at [74]-[76]) per McHugh and Kirby JJ. Nevertheless, as Gleeson CJ, Gummow and Kirby JJ continued in Fox v Percy (footnotes omitted): "25 Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'... [26] After Warren v Coombes , a series of cases was decided in which this court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde , Abalos v Australian Postal Commission and Devries v Australian National Railways Commission . This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

[179]

[29] That this is so is demonstrated in several recent decisions of this court. In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process. … [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical." 112 Mr Toomey submitted that this case was very much like Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472. In that case, as the headnote records: "The trial judge (Legoe J) found that on 23 January 1985 the plaintiff sustained injury when a tie tamper he was using on a railway line became stuck and had to be freed by exerting a good deal of pressure. The application of that pressure caused an injury to the plaintiff's back. In making these findings, and upholding the plaintiff's claim, Legoe J expressly accepted the plaintiff's account of events in the knowledge that there were inconsistencies between his evidence and statements made by the plaintiff in reports filled in shortly after the accident. In preferring the plaintiff's oral evidence, the judge accepted it as a truthful and reliable account of what had occurred. The Full Court of the Supreme Court (Mohr and Matheson JJ and Zelling AJ) allowed an appeal by the defendants on the ground that the inconsistencies between the plaintiff's oral evidence and other material threw such grave doubt on his testimony as to require the conclusion that the plaintiff had failed to establish that the incident had happened as he had sworn." 113 The High Court held that the Full Court had erred in setting aside Legoe J's finding. Legoe J had accepted the plaintiff's evidence as a truthful and reliable account of what had occurred and concluded that the inconsistencies between his evidence and statements he made in reports filled in shortly after the accident were the result of the confusion of the plaintiff caused by pain at the time when he filled in the reports and by his inability "to express himself in written English properly". On appeal, Mohr J (with whom Zelling AJ and Matheson J agreed) regarded the plaintiff's contemporaneous reports of the accident, which were inconsistent with his trial testimony, as "established facts" leading to the conclusion that the plaintiff had not proved that his injury was the result of the incident alleged to have occurred on 23 January 1985: see Devries (at 475). 114 Brennan, Gaudron and McHugh JJ said of this approach (at 476 - 477, footnotes omitted): "However, it is difficult to see how the fact that the plaintiff had given a more coherent account of injury on previous occasions entitled the Full Court to set aside the trial judge's finding of credibility. On this occasion, the plaintiff was in hospital in considerable pain. Mohr J appears to have taken the plaintiff's answers in the compensation claim form and report form as 'established facts', but that is not the sense in which the term 'established facts is used in authorities such as Brunskill v Sovereign Marine & General Insurance Co Ltd . The statements in the reports were not 'established facts'. They constituted admissions which could be used to discredit the plaintiff's testimony. But the 'facts' in the statements did not constitute 'facts incontrovertibly established by the evidence'. One of the critical issues in the case was the extent to which the statements could be relied on as an accurate account of how the plaintiff had sustained injury. The question for the judge was whether he should accept the plaintiff's oral evidence or whether the accounts in the claim form and report threw such doubt on the plaintiff's evidence that it should not be accepted. Once the trial judge concluded that the plaintiff's hospitalization, pain and limited knowledge of English explained his failure to mention the specific incident or give 23 January 1985 as the date of the incident, the statements had little, if any, evidentiary value. In accepting that there was an explanation for the inconsistencies, the trial judge had the advantage, which was denied to the judges of the Full Court, of being able to judge the true character and intelligence of the plaintiff and his ability to understand questions and to express himself in answer to those questions. These matters were fundamental to determining whether the plaintiff's evidence should be accepted. … [Their Honours referred to other evidence which tended to corroborate the plaintiff, then said] No doubt the inconsistencies between the plaintiff's out-of-court statements and his evidence at the trial were matters which might make a tribunal of fact hesitate to accept his evidence. But the trial judge had the great advantage of seeing the plaintiff in the witness box over several days. This gave the trial judge an incomparable advantage over an appellate court in determining what reliability could be placed on the sworn evidence having regard to the out-of-court statements of the plaintiff. Furthermore, the trial judge accepted the plaintiff's wife as a witness of truth and her evidence confirmed that the plaintiff was fit for work on the morning of 23 January 1985, as did the evidence of the fellow worker who noticed a drastic change come over the plaintiff about 10.30 am.

[180]

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'. The evidence of the plaintiff was not glaringly improbable. Nor was it inconsistent with facts incontrovertibly established by evidence. Indeed, the plaintiff's account received much support from the evidence of his wife and his fellow worker. The learned trial judge dealt in detail with the inconsistencies between the plaintiff's evidence and his out-of-court statements. No ground exists for concluding that the judge failed to use or palpably misused his advantage." 115 Deane and Dawson JJ said (at 479 - 480): "An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The 'value and importance' of that advantage 'will vary according to the class of case, and, ... (the circumstances of) the individual case'. If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge's conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence. Judges are increasingly aware of their own limitations and of the fact that, in a courtroom, the habitual liar may be confident and plausible, and the conscientious truthful witness may be hesitant and uncertain. In that context, it is relevant to note that the cases in which findings of fact and assessments of credibility are, to a significant extent, based on observation of demeanour have possibly become, if they have not always been, the exception rather than the rule. Indeed, as Kirby ACJ pointed out in Galea v Galea , in many cases today, judges at first instance expressly 'disclaim the resolution of factual disputes by reference to witness demeanour'. However, this does not deny that in many cases a trial judge's observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings. Indeed, as will be seen, the present was such a case." 116 In this case the process of appellate review is not directly influenced by the primary judge's preference for the respondent's credibility. Rather his Honour concluded that the respondent's credit was not of vital importance to his findings. This, as I shall discuss, appears curious in the light of the evidence, particularly the contrast between the respondent's evidence in chief and her cross-examination, and the contemporaneous documents. Nevertheless, as Deane and Dawson JJ said, that does not mean this Court can entirely deny the influence of the advantage his Honour had in observing the respondent and her mother's evidence. 117 Credit does appear to have been an issue in relation his Honour's preference for Dr Sonnabend over Dr Hitchen. I will return to this, but at this stage would observe that Kirby J has questioned whether "authority about disturbing evidence on the basis of assessments of credibility applies, or applies with the same strictness, in the case of expert witnesses where (normally at least) the honesty of the witness is not in doubt and the issue for decision at trial is the acceptability of the witness' opinion, the extent of his or her experience in the specialty and whether one expert's conclusion is more acceptable and logical than that of another expert": Shorey v PT Ltd [2003] HCA 27; (2003) 77 ALJR 1104 (at [32]). 118 His Honour had addressed this issue in Ahmedi v Ahmedi (1991) 23 NSWLR 288 (at 291 - 292) where he said: "… The issue is not one of credibility but of the logical persuasion and internal consistency of the medical opinion stated. An expert opinion is only as persuasive as the facts upon which it is based. Many are the cases in which expert opinions must be rejected because the factual hypotheses upon which they are based are not made out in the evidence …" 119 In Ahmedi v Ahmedi (at 299-300) Clarke JA (with whom Handley JA agreed) expressed the view that in a case where the trial judge's conclusion depended upon his assessment and evaluation of contradictory expert oral evidence, the principles in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 imposing restraint on appellate interference applied. He referred to Wilsher v Essex Area Health Authority [1988] AC 1074, where Lord Bridge said (at 1091): "... Where expert witnesses are radically at issue about complex technical questions within their own field and are examined and cross-examined at length about their conflicting theories, I believe that the judge's advantage in seeing them and hearing them is scarcely less important than when he has to resolve some conflict of primary fact between lay witnesses in purely mundane matters." 120 In this case, as shall become apparent, in my view 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.

[181]

121 In my opinion, this was a case where the expert issue in dispute involved differences (apparent, rather than real, as I shall explain) between the expert witnesses "capable of being resolved rationally by examination and analysis". Both experts were properly qualified. Neither was found to be dishonest, misleading, unduly partisan, or otherwise unreliable. In such circumstances, his Honour's blanket rejection of Dr Hitchen's evidence based, apparently, on the latter's demeanour in dealing with a short, and as I shall also explain, not demonstrably relevant, line of cross-examination did not provide the appellant with a satisfactory explanation for his or her lack of success. Nothing in Ahmedi, to which I earlier referred, required this Court to refrain from intervening and considering the expert evidence in its entirety: Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127 (at [68] per Ipp JA (Bryson JA and Stein AJA agreeing); see also De Groot v The Nominal Defendant [2005] NSWCA 61 (at [28]) per Bryson JA, Giles JA and Gzell J relevantly agreeing). 122 Finally on the issue of appellate review, I turn to the convenient summary Basten JA (with whom Beazley JA agreed) undertook in Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308 of the approach an appellate court takes when asked to draw inferences different from those a trial judge drew: "Appellate review [303] The jurisdiction exercised by the Court is governed by s 75A of the Supreme Court Act 1970 (NSW). It is an appeal 'by way of rehearing': s 75A(5). The Court has the power to draw inferences and make findings of fact: s 75A(6); in particular, subs (10) provides: (10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires. [304] The Court conducting a rehearing does not literally rehear the evidence: it deals with the evidence on the papers, not by rehearing the witnesses and receives further evidence only on special grounds: s 75A(7) and (8). However, it is well-established that the Court is obliged to consider so much of the evidence as is necessary to deal with matters raised by the Appellant and must formulate its own view with respect to those matters: see, eg, State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at [64] (Gaudron, Gummow and Hayne JJ), [89]-[93] (Kirby J); [139] and [146] (Callinan J); CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [16]-[17] (Kirby J). Putting to one side cases in which the trial judge has been required to resolve conflicting testimony as to primary facts, the established principle with respect to the drawing of inferences is that identified in Warren v Coombes (1979) 142 CLR 531, as expressed by Gibbs ACJ, Jacobs and Murphy JJ at 551: 'Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.'

[186]

[308] Further, it is clear from the discussion of the facts in the joint judgment in Warren v Coombes that the statement of principle with respect to drawing inferences was treated as relevant to the ultimate question, namely whether the trial judge was wrong in holding that the defendant was negligent: at p 553. To similar effect, in Anikin v Sierra (2004) 79 ALJR 452, having noted at [28] that '[d]ifferent minds might respond in different ways to the evidence given at the trial', the joint judgment applied the principles established in SRA v Earthline noted above at [304] in order to test the conclusion of the majority in this Court that had overturned 'the primary judge's conclusion on the issue of negligence': at [39]. …" 123 The appellant also submits that the primary judgement should be set aside because the primary judge failed to give adequate reasons and, in particular, failed to consider its case. 124 The primary judge was not obliged to spell out every detail of his process of reasoning (Yates Property Corporation Pty Limited (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171, 182), however he was obliged to expose his reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 270) per Mahoney JA, at 280 per McHugh JA. This obligation lay upon him to enable the parties to identify the basis of his decision and the extent to which their arguments had been understood and accepted: Soulemezis at 279 per McHugh JA. It was necessary that he " 'enter into' the issues canvassed and explain why one case was preferred over another": Jones v Bradley [2003] NSWCA 81 at [129] per Santow JA (with whom Meagher and Beazley JJA agreed). 125 It was, accordingly, essential that his Honour's reasons did justice to the issues posed by the appellant's case: Moylan v Nutrasweet Co [2000] NSWCA 337 at [61] per Sheller JA (Beazley and Giles JJA agreeing). In Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 at 377-378 the Court (Henry, Laws LJJ and Hidden J) explained the extent of this aspect of the duty to give reasons in the following terms: "It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible … But with expert evidence, it should usually be possible to be more explicit in giving reasons: See Bingham LJ in Eckersley v Binnie (1988) 18 Con LR 1, 77-78: 'In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons …' … (3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.

[195]

She still has an impingement sign and weakness of external rotation." 140 Dr Ridhalgh referred the respondent for physiotherapy treatment. 141 When confronted with the substance of Dr Ridhalgh's report in cross-examination, the respondent said (BLACK 130) that she did not recall telling him she was continuing to have shoulder problems but that she had "quite possibly" told him she was left with residual shoulder pain. 142 After her attention was drawn to the inconsistency between her evidence in chief that prior to the motor vehicle accident her shoulder had settled down and Dr Ridhalgh's report of 8 February 1999, the respondent agreed with the proposition put to her in cross-examination that her memory may well be faulty in respect of her pre-motor vehicle accident treatment. (BLACK 132). 143 The cross-examiner then put to the respondent that she was seeking treatment for her right shoulder before the motor vehicle accident, a proposition with which she agreed (BLACK 133G). The following exchange took place: "Q. The problem with your right shoulder had been going on, in effect, since you - shortly after starting at Hanly Moir. Correct? A. Yes. Q. It was a problem which was continuing to be there and present for you, right up until the time of this car accident. Correct? A. Yes Q. At the time of the car accident on 16 February 1999, you were continuing to have problems with your shoulder, because of the work you were doing at Hanly Moir. Correct? A. Correct. Q. So that the evidence you gave yesterday that after having this one injection with Dr Ridhalgh - FITZSIMMONS: Your Honour, page 19, point 4. Q. - - that your shoulder was no longer a problem, that wasn't correct, was it? A. It would seem to be not. Q. Because the fact is, your shoulder was continuing to be a problem for you right up until the time of the car accident. Correct? A. Correct. Q. The shoulder was of such a problem for you leading up to the car accident, that it was impacting upon your day-to-day activities. Isn't that the case? A. I only remember after. Q. I want to concentrate on the period before. Do you understand - very important. A. Yes, I do. Q. The position was, I suggest, before the car accident, in those months leading up to the car accident, and indeed for a period of up to about six months before the car accident, the problems with your right shoulder was impacting upon your day-to-day activities. A. Not to the best of my recollection, no." 144 The cross-examiner then cross-examined the respondent on the complaints she made to her chiropractor, Mr Eisman, as outlined in a letter the latter wrote to Dr Ridhalgh dated 19 February 1999. The letter was written following a consultation the respondent had with Mr Eisman on 15 February 1999, the day before the accident. Mr Eisman recorded: "CHIEF COMPLAINT

[196]

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 stabbing pain. She denies any temperature changes or sensory deficit. 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 6 months ago, she now states it has become both chronic and debilitating." 145 While the respondent said that she did not recall telling Mr Eisman all that he recorded, she did not deny that she had done so. 146 The following exchange then took place: "Q. So again, the answer that you gave to his Honour yesterday, that your shoulder was no longer a problem after the one injection from Dr Ridhalgh just wasn't true, was it? A. To the best of my recollection, it was, but apparently, it was not. It would seem my recollection was false. Q. You told the chiropractor that you could recall no particular trauma or incident that had provoked the condition. However, you told the chiropractor that your occupational duties aggravated the condition. A. Correct." 147 The respondent was then cross-examined about her ability to carry out housework prior to the motor vehicle accident. She said that she "still took care of the house" (BLACK 136). It was then put to her (BLACK 136) that she had told the chiropractor that prior to the accident she was "unable to perform normal daily activities". To this she responded: "Quite possibly. I don't recall. Yet I was still working, so I must have been able to do something." (BLACK 136). 148 She then agreed (BLACK 137) that what she had told the primary judge about what she was doing before the car accident and what she was telling the chiropractor seemed to be "two very different things". Subsequently she agreed (BLACK 141) that even before the car accident she had employed commercial paid help for around the house because of the combined difficulties of work and the ongoing problems she was having with her shoulder. 149 The following exchange then took place. "Q. Rather than the position being that you had had one injection of the right shoulder and it had settled down and was no problem to you at the time of the accident, in fact the position was your right shoulder was continuing to present a problem for you. Correct? A. Correct. Q. The right shoulder was continuing to present a problem for you such that it impacted upon your ability to undertake day-to-day activities? A. That would be correct. Q. You agree, don't you, that this ongoing problem you were having with your right shoulder up until the time of this car accident, as you understood was because of the difficulties with the work you were performing at Hanly Moir? A. I agree. Q. That was a problem - the shoulder problem that had developed since your employment at Hanly Moir, doing this sort of work - as something that was continuing to present itself to you right up until the time of the car accident? A. Yes. Q. It was such a problem to you that you even went to the stage of reporting it to your employer? A. Correct. Q. That is, you reported this problem to your employer before the car accident - that is, that you were having ongoing problems with your right shoulder because of the work you were doing with Hanly Moir? A. Correct. ……… Q. You felt, didn't you, that this was a continuing problem for you that wasn't going away - that is, this development of right shoulder problems before the car accident? A. Yes. Q. It's for that reason that you went to your employer and told her about this problem? A. Correct. Q. Did she do anything about it? A. I don't recall. I was still running the rooms on my own, in a room by myself." 150 These extracts demonstrate, in my view, that there was a substantial body of evidence that the respondent was suffering from disabling right shoulder problems at the time of the accident, a problem apparently caused by her work at Hanly Moir, or, at least, whose onset coincided with the commencement of that employment. Further, 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. 151 The primary judge referred briefly (at [10]-[13]) to the evidence that the respondent had suffered right shoulder problems since mid 1998 which persisted up to the motor vehicle accident. He observed that her condition had been diagnosed as bursitis, a diagnosis which was consistent with an MRI scan performed on 5 February 1999. He remarked that the pre-accident history was "unusual, given the significant issue of causation". 152 His Honour did not, however, analyse the pre-accident right shoulder condition against the appellant's contention that it was the respondent's return to work at Hanly Moir in August 1999 which precipitated her right shoulder condition. Nor, as I shall explain, when examining the substantial body of contemporaneous records, did his Honour entertain the possibility that post-accident references to bursitis or right shoulder pain, were consistent with her pre-accident condition, rather than caused or affected by the accident. Rather, his Honour appears 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.

[227]

(x) Dr Bloom, one of the respondent's general practitioners, wrote to the respondent's solicitors on 30 December 1999 referring to the respondent's attendance at the practice on 25 February 1999 and the history she gave of her motor vehicle accident. He recorded that she had reported injury to her right wrist and diagnosed disruption of a reconstructed right scapho-lunate ligament; he reported that her continuing disability was 100 per cent due to the motor vehicle accident on 16 February 1999 as "the scapho-lunate ligament reconstruction was previously sound, now her wrist and hand are too painful for her to work"; (BLUE 2) 157 As this analysis demonstrates the respondent saw numerous medical practitioners over the ten or so months to the end of 1999, most of whom were treating or assessing her in connection with the motor vehicle accident. Further, on my calculation, in addition to the occasions I have listed concerning the respondent's consultations with her general practitioners, she attended their practice on at least 27 occasions up to the entry on 26 October 1999. She did not complain to any of these medical practitioners that her right shoulder had been injured in the accident, nor that she had increased pain in her right shoulder following the accident. 158 The respondent gave various explanations for her failure to complain. She said that it took weeks for her to realise that her shoulder was hurting in an entirely different way to the way it had been before the car accident. (BLACK 153) However, she then agreed with the proposition (BLACK 155N) that nine days after the accident she felt that she had done something additional to her shoulder as a result of the car accident and, too, with the proposition that it was from that time that she had felt she had done something to her right shoulder in the car accident. If that evidence is accepted then one might have expected to see from late February some complaint by the respondent about her shoulder. None appears in the contemporaneous material. 159 The respondent agreed that when she saw Dr Davis she told him of her pre-existing bursitis condition, but did not tell him that she had perceived any increase in pain or discomfort in her right shoulder as a result of the car accident (BLACK 166, 167). When asked why, she said: "When you break a leg, you don't complain about a stubbed toe. My wrist was infinitely worse. That was the problem. I didn't think the shoulder - I believed it to be bursitis. Whether or not that is the issue here, that is what I believed. I thought it was an inflammation; it would go away." (BLACK 168). 160 The respondent accepted that by 1 April 1999, the day she gave a statement to Mr Bennett, she had perceived been an increase or alteration in the symptoms in her right shoulder as a result of the car accident. She accepted that she did not tell him that there had been an increase in the symptoms in her right shoulder as a result of the car accident and that she had told him the only injury she felt she had sustained was to her right wrist. (BLACK 170-171). The respondent denied that she had failed to inform Mr Bennett of the increase in her right shoulder pain because she did not have that perception (BLACK 171). When asked why she had not told Mr Bennett that she perceived problems with her shoulder since the car accident, the respondent said she "wanted to go back to work" but did not explain the matter further. 161 In later cross-examination, in response to a question to the effect that she had not suggested to Dr Bloom, her general practitioner or any medico-legal specialist up until she saw Dr Zicat in March 2000 that she felt she had either re-injured, aggravated or accelerated a problem in her right shoulder in the accident, she said: (BLA 209) "I was still feeling pain; I just didn't talk about it."

[229]

Q. What did you do immediately, that is when the shoulder dislocated, about it? A. I put it back in. Q. How did you do that? A. I put my hand on the dashboard, my right hand on the dashboard, my left hand against my shoulder and shoved it as hard as I could. Q. Did that work? A. Yes. BLACK 44 - 45 ….. Q. You have given us a little detail … of the incident when your shoulder did dislocate. Was it much of an incident, much of an impact? A. Yes, it terrified me. … Q. How long do you think it was after that that you saw the medical advisor? A. It was that afternoon, I went to - to the GP. Q. When you put this shoulder back in yourself, did that have any effect on the level of pain that you experienced when the shoulder popped out? A. Once the shoulder was back in, the pain decreased. Q. Are you able to say roughly how long after the accident that dislocation was? A. Roughly three months, again a very rough estimate. Q. After that first episode of dislocation, were there others? A. Yes. Q. Did you discuss those continued episodes with your doctor? A. I told him about them, got the referral for Professor Sonnabend. He made an appointment, it took some time before I was able to see him. … Q. From the time of the first dislocation to when you saw Dr Sonnabend, were there other episodes of dislocation? A. Many, by the time I saw Professor Sonnabend, it was not unusual for my shoulder to sublux up to ten more times a day. Simple movements caused it to move out of place. Q. If we were to look at it from the first one, and let's take a set period of time after that, say a few weeks, and then look at it in slabs of a few weeks or a month of time after that, were the dislocations occurring at regular intervals with increasing frequency, or decreasing frequency? A. Increasing frequency. Q. Looking in the same sort of way, was the precipitating incident for the dislocation coming one that was more traumatic, same level of trauma or less? A. Much less. (BLACK 47) ….. Q. Do you know what cross body adduction means? A. I do. Q. Could you demonstrate with your left arm what is the manoeuvre … you're leaning across your body. A. (Not transcribable) to move my arm. Q. With your arm in a horizontal plane as far across the body as you can reach, and did you notice anything about your right shoulder when you attempted to do that? A. It would fall out, it would - it was incredibly painful if I continued to do it, if it came out of place. Q. Can you remember the circumstances when there were dislocations associated with either the external rotations or the adduction? A. The exact movements, no, it was happening so often, the most simple thing would set it off. It didn't take much to make it go out. Q. Were you concerned about it? A. Yes, I was." (emphasis added) 164 There is no record in the notes from Dr Bloom's practice prior to 2000 in which she reported a right shoulder subluxation or dislocation or anything of that nature. The first reference in those notes to either topic is on 8 March 2000 when the notes record, in what appears to be Dr Bloom's handwriting: "Since the MVA the R shoulder has been subluxing - worse now at least once a day. On reaching out stretching in bed. It goes clunk and really hurts often Mum ?? to put it back in. No episodes before at first at ?? joint aching around shoulder, clunking. Now 'falling out'." 165 On 2 December 1999 Mr Eisman recorded: "S swimming yesterday; shoulder is (?) lurching + moving around a lot (R) shoulder (P)."

[230]

He appears to have diagnosed this as a strain. (BLUE 394) 166 Dr Naim referred the respondent to Dr Sonnabend on 6 January 2000, noting, insofar as her shoulder was concerned: "Vashti now has marked (R) shoulder pain, with a rotator cuff tendonitis …and other symptoms which she can explain." 167 Dr Zicat, an orthopaedic surgeon, saw the respondent for medico-legal purposes on 15 March 2000. He recorded her history, relevantly, as follows: "Due to her wrist pain and need to move her shoulder into awkward positions to compensate for wrist stiffness, she began to develop symptoms in her right shoulder in March 1999. This consisted of pain in the shoulder that was diagnosed as bursitis or tendonitis. Her shoulder has become progressively more severe, and has now been apparently unstable for the past month with symptoms of subluxation, and 'moving out of joint' that requires a manipulative procedure on her part to reduce. This has been quite painful as well. Her shoulder continues to get worse." 168 In cross-examination it was put to the respondent that the history she gave Dr Zicat about when her shoulder had first dislocated was correct. She denied that and said that the first dislocation was in June-July 1999. (BLACK 223). 169 The primary judge concluded (at [64]) that Dr Zicat had either been given, or had recorded, an erroneous history. Having regard to the respondent's history to Dr Sonnabend later that month, what he regarded as Mr Eisman's note of a dislocation in June 1999, the GP's entry on 26 October 1999 and Dr Naim's referral letter and its date, he concluded Dr Zicat had incorrectly recorded the commencement time. 170 The respondent saw Dr Sonnabend for the first time on 24 March 2000. She told him she experienced markedly increased pain in her right shoulder after the accident, and that in about March 1999 she became aware of "clunking and dislocation of the joint". 171 Dr Ireland examined the respondent again on 9 July 2002. She gave him a history that after she resumed work as a pathology collector in September 1999 she began to notice discomfort about her right shoulder, and that: "In December 1999 she was making a fairly simple manoeuvre when … her right shoulder joint either dislocated or subluxated …she was referred to Dr Sonnabend and … the situation persisted." 172 The primary judge noted this report, and, without elaboration, said he took it into account in the finding he made about the first shoulder subluxation: primary judgment (at [87]). It is impossible to understand what weight he placed on this account. For my part it accords with the bulk of the accounts of the first subluxation occurring towards the end of 1999. 173 In my view, contrary to the primary judge's conclusion, 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. 174 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. 175 However, the history Dr Zicat was given of the timing of the onset of her subluxation accorded with other contemporaneous material, including her 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. 176 In my view, the weight of the evidence supports 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. The primary judge reached the contrary conclusion based largely on the inferences he drew from the chiropractor's records to which I now turn. The chiropractor's records 177 The primary judge drew his conclusion that the respondent had suffered increased pain to her right shoulder after the motor vehicle accident from his analysis of Mr Eisman's letter 22 February 1999 to Dr Ridhalgh recording that the respondent's "entire right shoulder is in pain and discomfort" and that her "upper extremity was re-injured" in the accident. He also noted "increased inflammation" in a section dealing with an examination of both shoulders. The primary judge inferred, contextually, that this was a reference to increased inflammation in the right shoulder: primary judgment at [23].

[231]

178 The second conclusion, that her right shoulder had first subluxed in June 1999, was drawn from his interpretation of Mr Eisman's note of 17 June 1999 referring to "L" shoulder as being a reference to the respondent's right shoulder. 179 I note parenthetically that the only explanation for Mr Eisman not giving evidence which was apparently proffered to the primary judge was that his clinic had closed. There was no suggestion that he was unable to be located. However, as the primary judge recorded, his absence was not the subject of adverse comment by counsel for either party. 180 Mr Eisman first saw the respondent on 15 February 1999. He took a detailed history from her on a document headed "Shoulder examination". It is unnecessary to set out the detail of this document, much of which was set out in his first report of 19 February 1999 to Dr Ridhalgh, reproduced by the primary judge at [20]. I note, however, that at the outset, in a passage not referred to by the primary judge, Mr Eisman wrote: "Thank you for referring Ms Vashti Clancy…for treatment and evaluation of her right shoulder and arm. Ms Clancy is a 25 year old ambidextrous female. She states that she writes with her right upper extremity however she performs most tasks with her left upper extremity due to her condition." (emphasis added) 181 I infer from this paragraph that when Mr Eisman used the expression "upper extremity", he was describing her hand. 182 The report then said: " 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 4/10; 10 being the worst. Upon movement she experiences a grinding sensation as well as sharp stabbing 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 " 183 Mr Eisman's second report of 22 February 1999 was almost identical to his first, save that it included: "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." (emphasis added) 184 If my interpretation of Mr Eisman's use of the expression "upper extremity" is correct, the respondent's report to him of what was injured in the motor vehicle accident, namely her right arm and hand, is consistent with the many contemporaneous records to which I have already referred. The primary judge also noted (at 25]) that the reference to "upper extremity" could "merely mean her arm", however he did not believe a lot turned on that. 185 However if the reference to "upper extremity" is excluded as descriptive of the respondent's right shoulder, the primary judge's conclusion that the respondent had suffered increased pain in her right shoulder rested, it would appear, on the statement in Mr Eisman's 22 February letter that the respondent was experiencing "a pain level of 10/10", as opposed to "4/10" in his first letter. 186 The primary judge noted (at par [26]) a submission by counsel for the appellant that when one had regard to Mr Eisman's notes, the increase in pain as a factor of ten recorded in the letter 22 February 1999 to Dr Ridhalgh related to the respondent's wrist. His Honour accepted that there was some strength in that submission but ultimately preferred what Mr Eisman wrote in his report. He considered what Mr Eisman wrote in his report to Dr Ridhalgh was likely to be more accurate as the report was prepared so soon after all the examinations and for the consumption of others, whereas the notes could be taken to have been made from Mr Eisman's own use. He also concluded that the notes, particularly of the 19 February 1999 visit, showed that the right shoulder was the subject of Mr Eisman's attention.

[233]

[there are then four further lines of notes which are almost impossible to read, but one of which appears to say "+ Codman's (R) shoulder"]. 188 Mr Eisman's notes of the 17 February consultation were read to the respondent in cross-examination. She agreed that when she went back to see him after the car accident she had not referred to any aggravation of the shoulder, explaining that that was because she was "very worried about my wrist". (BLACK 160F). 189 Mr Eisman's notes make no mention of the respondent complaining of her right shoulder as a consequence of the motor vehicle accident. I do not, with respect to the primary judge, read these notes as showing that the respondent's right shoulder was the subject of Mr Eisman's attention. Rather, as is consistent with his use of the expression "upper extremity" in his first letter, the first line of the entry appears again to refer to the forced movement of the respondent's right wrist in the accident. Clearly the examination was of the respondent's wrist and the notation "10/10" is associated with that examination. 190 When one compares Mr Eisman's clinical notes with his letter to Dr Ridhalgh of 22 February 1999, it was not open to the primary judge, in my view, to infer that the letter supported a complaint by the respondent of increased pain in her right shoulder after the accident. Rather, the notes record her complaint of injury to her right wrist in the accident, a complaint consistent with the other contemporaneous accounts she gave to medical practitioners and others. 191 I accept that the entry "10/10" in the 22 February letter appears to support the respondent's case, but its appearance in association with her shoulder does not accord with the clinical notes. Common experience is that clinical notes are the raw data on which diagnosis and opinions are based. It might be expected that they would be recorded reasonably contemporaneously with examination and, for that reason, be reliable. Counsel for the appellant was justified, in my view, in querying the statement in Mr Eisman's letter of 22 February 1999 that the respondent had reported experiencing "a pain level of 10/10" and its relation to her right shoulder. 192 It is clear that by 22 February 1999, Mr Eisman was also treating the respondent for her wrist, because in his letter he added to the list headed "Diagnostic impression" a reference to the respondent having a "hyperextension injury to the right hand and wrist" as well as "edema [sic, oedema]". This is consistent with the respondent complaining of her wrist injury to him following the accident. 193 I also note that on 22 February, the day he apparently wrote to Dr Ridhalgh, Mr Eisman recorded: "S can't do O's [with] ring finger of (R) hand (P) over weekend was 8/10 O some ↑ ROM shoulder A same"

[235]

196 Thereafter Mr Eisman saw the respondent once more in February, on four occasions in March, four in April, twice in May and three occasions in June 1999. All entries appear to relate either to her wrist or her right arm. This is consistent with her statement to the workers compensation assessor on 1 April 1999 that the bursitis in her right shoulder was due to the way she used her arm at work and that she was not receiving treatment on it because she was resting it by not working: primary judgment (at [34]). 197 It is not until 17 June 1999 as I read Mr Eisman's notes that there is another reference to the respondent's shoulder. This is the note from which the primary judge concluded that the respondent's right shoulder subluxed in June 1999. That note (of which it appears only a photocopy has ever been available) reads: "17-6-99 S Pt c/o shoulder (P) (L) deep in joint previous dislocation O By palp to (L) shoulder ROM in extension abduction (P) bigger pts (L) rhomboid Pt tender to light palp. C, T sublux A sublux P u/s myofascial release adjust" [The "L" in the first line is either written over by "R" or vice versa] 198 As I have said, the primary judge interpreted this entry to be a reference to the respondent complaining of her right shoulder dislocating on the basis of his conclusion that the letter "R" had been written over the letter "L" in the first line. 199 I cannot, with respect, accept that this conclusion was open to his Honour. I accept that it is not part of the appellant's case that the respondent's left shoulder had dislocated. However that does not mean that the only inference from the 17 June 1999 note is that it referred to the respondent's right shoulder. Read in its entirety the note refers to an examination of the respondent's left shoulder. The letter "L" appears on the second and third lines in connection with the examination. It seems inconceivable that Mr Eisman could have been so confused in preparing his notes as to have recorded an examination of the respondent's right shoulder in terms clearly referable to her left. The fact that the only correction to the notes appears to be to write "L" over "R" is, in my view, consistent with the other parts of the note that this was an examination of the respondent's left shoulder. 200 Further it should be noted that in an entry dated 19 July 1999 (but which curiously appears before an entry dated 17 July 1999) Mr Eisman recorded: "19-7-99 S Pt has had cortisone injection to (R) thumb 1-7-99, cold will ↑ (P) in hand. Unable to do full ROM [with] (R) thumb (P) in both shoulders esp in (L) O ↓ sensation (R) thumb ↓ wrist ROM …" 201 This entry makes it plain that in mid 1999 the respondent was experiencing pain on both shoulders and more in her left than her right. 202 In my view the 17 June 1999 note does not support the respondent's case. Not only does the note, in terms, refer to her left shoulder, but a conclusion that the respondent's right shoulder dislocated in June 1999 is, again, inconsistent with the bulk of contemporaneous material. 203 Significantly, the respondent's case was that she reported the terrifying incident in which her shoulder subluxed to Dr Bloom the day it occurred. There is no record of any such report to Dr Bloom in the period she identified as being when her first subluxation occurred. The absence of such a record, in my view, tells strongly against the respondent's case as to when her shoulder first subluxed. 204 One of the appellant's submissions to the primary judge was that his Honour should draw an inference adverse to the respondent's case because of her failure to call either of her general practitioners. The primary judge disposed of that submission by noting that the general practitioners' notes were tendered by the appellant and, accordingly, he did not see that there was "weight in the criticism". 205 It is convenient at this stage to deal with the appellant's complaint (ground 5) about the respondent's failure to call her general practitioners.

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206 In Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 (at [51]) Gleeson J and McHugh J approved the statement by Mr Dyson Heydon QC (as his Honour then was) in Cross on Evidence that: "[T]he rule [in Jones v Dunkel ] only applies where a party is 'required to explain or contradict' something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts 'requiring an answer'." 207 Most recently, in Ibrahim v Pham [2007] NSWCA 215, Campbell JA (Hodgson and Santow JJA agreeing) said: "Before Jones v Dunkel (1959) 101 CLR 298 can be used as the basis for drawing an inference unfavourable to a party in litigation, the missing witness must be one who would be expected to be called by one party rather than the other: Payne v Parker [1976] 1 NSWLR 191 at 201; Manly Council v Byrne [2004] NSWCA 123 at [53]." 208 In Payne v Parker [1976] 1 NSWLR 191 Glass JA considered the question of when a missing witness would be expected to be called by one party rather than the other, which he described as the first condition for the operation of the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. He said (at 201-202, footnotes omitted): "(7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v. Reichard , or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid., or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid. Regina v. Burdett , or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v. Castlemaine District Community Hospital , or where his absence should be regarded as adverse to the case of one party rather than the other: ibid. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid. Evidence capable of satisfying this condition has been held to exist in relation to … his treating doctor: O'Donnell v. Reichard. " 209 Failure to call a witness a party would be expected to call leads to the inference that the witness' evidence would not have assisted that party: Jones v Dunkel (at 308, 312 and 320 - 321). As Glass JA said in Payne v Parker (at 201), where the failure to adduce evidence is that of the party bearing the legal onus of proving an issue: "…[T]he direct evidence of the party carrying the onus may be more readily rejected, and the inferences for which he contends may be treated with greater reserve. The default 'brings a great slur on his cause'." 210 One of the central issues in the case was when the respondent's right shoulder first subluxed or dislocated. She bore the onus of proving that issue as part of the burden she carried of establishing that the motor vehicle accident was a cause of her right shoulder problems. She gave clear evidence that her right shoulder first subluxed or dislocated at least before July 1999. Her mother gave a similar account. Both said she had consulted Dr Bloom the same day. There was no record of any such attendance in his notes. This was consistent with the appellant's case that the respondent had not suffered a right shoulder subluxation or dislocation until much later in 1999. It tendered the notes to establish the inconsistency. 211 It was, in my view, incumbent upon the respondent, being on clear notice of the challenge to her account of the development of her right shoulder condition, to have called Dr Bloom to confirm, if he could, her account of the consultation about her first shoulder subluxation. Her failure to do so meant that her evidence could be more readily rejected, and the inferences for which she contended "treated with greater reserve".

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212 Later in his judgment (at [66]) the primary judge considered the failure to call the general practitioners in the event the appellant's Jones v Dunkel submission was correct. He said he was not persuaded, however, that they could have done any more than their notes, having regard to his conclusion (at [64]) that they had not recorded the request for, or discussion of, a referral to Dr Sonnabend. As to this I would make the following observations. 213 First, it is not clear what use his Honour made at this stage of the fact that the evidence included the letter from Dr Naim referring the respondent to Dr Sonnabend (BLUE 462). This was some evidence that it was not Dr Bloom who had referred the respondent to Dr Sonnabend as she (and her mother) had said. More importantly it dated the subluxation towards the end of the year. Secondly, the absence of any notes confirming the respondent's account of her consultation with her general practitioners even for the purpose of obtaining the referral did not prove her account was correct. Rather, it was some evidence, as the appellant argued, that her evidence was not to be accepted where it was inconsistent with contemporaneous documents. The respondent's attendance at her general practitioners was so frequent that I would not readily infer that they could not have given some evidence which would have assisted in explaining why there was no note earlier than 8 March 2000 of her right shoulder subluxing. Indeed I would infer from the fact that the first record of her shoulder subluxing appears on 8 March 2000 that that was the first occasion they had been so advised. Significantly, Dr Naim's letter, which I extracted earlier in this judgment, does not refer to subluxations. 214 In my opinion the primary judge erred in failing to draw an adverse inference from the respondent's failure to call her general practitioners to give evidence concerning the issue as to when her right shoulder first subluxed. Her failure to do so cast doubt on her, and her mother's, account of when her right shoulder first subluxed. The primary judge ought, in my view, to have subjected their evidence to even closer scrutiny, in the light of this evidentiary omission. 215 Thus the appellant has made good its fifth ground of appeal. However, mere error in this respect is not sufficient to dispose of the appeal in the appellant's favour. To have that effect, the error must be decisive of the appeal. This error was, in my view, but one criticism of the primary judge's approach.

[242]

Mrs Clancy's diagnosis was that of severe multi-directional instability of the right shoulder. This condition occurs almost only in the presence of significant systemic ligamentous laxity, which Mrs Clancy had, related to her underlying metabolic condition. The motor vehicle accident of February 1999 appears to have precipitated the multi-directional 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 limb activity, and required surgical intervention in the form of a capsular shift procedure." (BLUE 11-12) 233 After referring to the MRI of the respondent's shoulder prior to the motor vehicle accident, Dr Sonnabend described the subacromial bursal fluid it revealed as being "the result of some local mechanical pathology", then continued: "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 multi-directional instability requiring surgical intervention." 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: "… [S]he clearly had a significant shoulder problem prior to the accident." (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.

[243]

Conversely, there is evidence of pre-existent problems with the right shoulder for which she sought treatment from Dr Ridhalgh, an orthopaedic surgeon … I differ from Dr Sonnabend's opinion that the instability has been worsened by the motor vehicle accident - and it may be that he did not have access to the medical documentation that is currently available. I conclude that there is no relationship between the accident and her right shoulder condition. She clearly has pre-existent multi-directional instability of the shoulder. The accident did not cause an aggravation or acceleration of her pathology." 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. Q. When you say a 'relatively short' time - - A. Months … I don't want to say 3 months or 6 months. If it was more than - I'm plucking a number out of the air, to be honest, but if I was to say - more than 6 months it would make you wonder whether it was related, but that's an arbitrary thing. Q. It would be fair to say that obviously the longer the period of time we get from the accident before there's a change in symptoms makes it less likely that it's causally related. That's a fair statement? A. Sure. Q. But what was significant to you was at some point of time an alteration in symptoms pre to post accident? Is that correct? A. Correct." 239 Dr Sonnabend was then cross-examined about the usual cause of MDI. He said: "More often than not it's not related to macro trauma … people now would say it's due to micro trauma rather than no trauma … repetitive activity instead of major injury." (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.

[244]

A. She has ligamentous laxity … Q. What I want to suggest is that then, for example, if [the respondent] was participating - actively participating - in marathon swimming. Do you understand? A. You could guarantee she'd develop MDI. Q. If what occurs is that you have a period or a routine of swimming - of marathon swimming - and of training, as a result of which a person becomes symptomatic. Do you understand - of pain in the shoulder, initially, a gradual but ongoing development of pain, becoming more and more significant. Do you understand? A. I do understand. Q. Would you agree that that's clearly a picture of MDI, in effect, already being present, and its early manifestation of symptoms? A. I know this sounds silly, because we're really on semantics. It's purely a manifestation of a very loose shoulder. I'm used to using these words in perhaps more precise context. If you ask me, 'is it a manifestation of a loose shoulder, yes it is.' 'Is it a manifestation of progressive loosening of the shoulder, yes it is.' If you want to discuss whether it really is MDI, it then comes in at a matter of definition. Q. If you couple those two aspects with a further aspect that there was a cessation of the swimming activity … and an overall reduction in the levels of activity involving the shoulder - but there continued to be a presentation of fairly significant pain in the shoulder. Do you understand? A. If that were some time later, then it would suggest that there was some kind of damage done, if that's what you're asking me. Q. When we refer to permanent damage, we're talking about MDI? A. What you're calling MDI. Q. Faulty directional instability. A. Yes, alright… I know I'm being stupid, but we're using words differently. It certainly suggests that there is some let's say - leave the M, MD, some shoulder instability, acquired shoulder instability." 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:

[251]

(g) that by November 1999 she told the chiropractor that she felt her shoulder symptoms, as a result of her return to work, were back to the stage they were before the motor vehicle accident. 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: "If her condition was essentially unchanged over ten months following the accident we would wonder how severely [sic] the effect of the accident was … I would agree that if she was no worse ten months post-accident, which is the scenario you paint to me … then the role of the accident producing her shoulder symptoms is far less clear." (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.

[252]

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.

[255]

Dr Hitchen disagreed with the proposition that the prognosis for the respondent's pre-accident right shoulder condition was usually good. In his view the prognosis even for people with minor glenohumeral instability was not "universally good" because (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."

[256]

The last sentence in the post-accident report reads: "There appears to be increased inflammation." That sentence does not refer to the respondent's right shoulder expressly, but I would accept, having regard to the last sentence of the same paragraph in his first report, that it was a reference to that shoulder. This, as I observed (at [177]) when referring to Mr Eisman's observation of "increased inflammation", was the inference the primary judge drew. 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.

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