REASONING: CAUSATION
65 Ms Norton SC, who appeared with Mr Daley for the appellant, submitted that this Court was as well placed as the primary Judge to assess the medical evidence bearing on the question of causation. She pointed out that none of the medical practitioners had given oral evidence and that no credit issue arose. (While the appellant's written submissions seemed to challenge her Honour's finding that Mr Field was not a reliable witness in relation to the appellant's pre-accident physical condition, Ms Norton did not pursue that contention.) Ms Norton accepted that the primary Judge was entitled to rely on the appellant's own evidence as to the state of his knee prior to the accident. Accordingly, so she argued, the appeal essentially depended on the documentary evidence and on undisputed facts or on facts which, having been disputed, had been found by the primary Judge: Warren v Coombes [1979] HCA 9; 142 CLR 531, at 551, per Gibbs ACJ, Jacobs and Murphy JJ.
66 Ms Norton contended that the primary Judge had erred in preferring the opinions expressed in the report prepared by Dr Harvey-Sutton over those of the three medical practitioners upon whom the appellant relied. Ms Norton argued that, while Dr Harvey-Sutton's report was admissible, it should be given little weight as the appellant was precluded from cross-examining Dr Harvey-Sutton on her opinion. Ms Norton further submitted that the primary Judge had placed excessive emphasis on a single notation in Dr McMahon's clinical notes for 30 December 2003 and had failed to appreciate defects and omissions in Dr Harvey-Sutton's report which, after all, had been prepared for a purpose other than resolving the factual dispute in the current litigation.
67 Mr Turnbull, who appeared on behalf of the respondent, did not dispute that the appellant's challenge to the primary Judge's finding on causation came within the principles stated in Warren v Coombes. He submitted, however, that the evidence supported the primary Judge's finding that the appellant's knee condition at the date of the trial was not caused by the accident. Mr Turnbull argued that the primary Judge was fully entitled to conclude that the opinions of each of the medical practitioners on whom the appellant relied had been undercut, either by the failure to mention the appellant's history of knee problems (in the case of Dr McMahon) or by the absence of a complete medical history (Dr Giblin and Dr Ellis). That history did not depend simply on Dr McMahon's clinical notes of 30 December 2003, but the appellant's own evidence that he experienced pain prior to the accident. Her Honour was also entitled to take into account the absence of any recorded complaint by the appellant concerning his right knee for a period of two months after the accident.
68 The matters identified by Mr Turnbull, to the extent that they are borne out by the evidence, are clearly significant on the issue of causation. Nonetheless, there are substantial difficulties with the analysis of the primary Judge.
69 The first is that her Honour appears to have attributed excessive significance to Dr McMahon's notation on 30 December 2003 and to the appellant's oral evidence that he had experienced pain in his right knee before the accident. Dr McMahon's notes merely recorded right knee "lateral pain on medial strain. Months". There is nothing in the notes to indicate that the appellant was suffering pain in consequence of damage of the kind detected by the arthroscopy performed by Dr Giblin on 21 November 2006 and summarised in his report of 28 February 2007. On the contrary, the report of the X-ray carried out on 9 January 2004, to which her Honour did not specifically refer, did not identify any of the injuries or damage to the right knee detected by Dr Giblin 34 months later.
70 The appellant readily admitted in his evidence that he had experienced problems with his right knee before the accident. He described the pain as rheumatic pain and said that he had a bit of arthritis. However, the appellant was also adamant that the post-accident pain was worse and the primary Judge, although suggesting that the appellant had exaggerated some symptoms, made no finding that his assessment of the comparative pain levels was not accurate. Nothing that the appellant said in evidence supports a finding that any pain he was experiencing before the accident was the result of damage of the kind identified in the arthroscopy or in Dr Giblin's report.
71 The primary Judge's finding was that "for some years before the motor vehicle accident [the appellant] had complained of pain in his right knee". It is not entirely clear what her Honour intended to convey by this finding. If she meant that the appellant had complained to medical practitioners about the state of his knee, the evidence does not support such a finding. The appellant saw his general practitioner on many occasions before the accident, but there is no indication in the clinical notes of any complaint about a knee problem except on the one occasion, on 30 December 2003. If the primary Judge meant to say only that the appellant had experienced some kind of mild rheumatic pain over a period of time (although not for "some years"), that conclusion may have been justified. However, such a conclusion has little significance on the question of causation.
72 The primary Judge did not explicitly find that Dr McMahon withheld relevant information from his report. Yet that is the implication in her criticism that Dr McMahon:
"offered not a word in the reconciliation of the history nor a word in explanation of why the previous complaints … were different from, or unrelated to, [Dr McMahon's] diagnosis."
73 An alternative and equally, if not more plausible explanation for the omission is that Dr McMahon, who plainly was aware of the appellant's history and presumably aware that that history would be closely scrutinised by the parties to the litigation, did not consider the "rheumatic pain" to be material to the issue he was considering. This alternative explanation is made more likely by the failure of the respondent to ask Dr McMahon to attend for cross-examination and to put to him that he had failed to include relevant information in his report. Unlike Dr Harvey-Sutton, who was not a compellable witness, the respondent could have required Dr McMahon to attend for cross-examination, but it did not.
74 Thirdly, the primary Judge assumed that the appellant had not complained about the condition of his knee for at least two months after the accident. It is not clear that the primary Judge was entitled to interpret the notes made at Liverpool Hospital as demonstrating that the appellant did not suffer tenderness in palpation of the knee. Her Honour did so on the basis of her own knowledge that the symbol o is frequently used by medical practitioners and others to indicate that the recorded phenomena do not exist. However, there was no evidence to that effect and a similar symbol was used by Dr McMahon in his notes to identify "objective" symptoms.
75 Nevertheless, on the assumption that her Honour was right as to the meaning of the symbol, there was objective evidence that the appellant had in fact complained about his right knee shortly after the accident. The rehabilitation provider, Konekt, recorded that at the conference held with the appellant on 5 July 2005, the appellant complained that he could not keep the knee in a flexed position for long periods and that he felt a muscle in his medial right leg was torn.
76 The primary Judge put this evidence to one side on the ground that the dates recorded in the Konekt report were inconsistent and that the document was likely to have been prepared in late August 2005. But in my view, there is no persuasive reason to conclude that the conference took place otherwise than on 5 July 2005, the date recorded in the report. The report refers to the fact that the appellant "is scheduled" for a medical review on 6 July 2005, suggesting that the review had not yet taken place. It is true that the report has a chart in which the words "Injury Progress Over Past 4 weeks" appear in bold and that the appellant's injury occurred on 23 June 2005, only two weeks before the recorded date of the report. However, the form of the document suggests that the chart was a part of a standard grid used for reports of this kind.
77 In my opinion it is more likely than not that the rehabilitation conference was held on the date recorded in the report, 5 July 2005. It is therefore likely that the appellant, despite conceding in evidence that he had not complained about his knee during the two months following the accident, made at least one complaint about the condition of his knee before 23 August 2005. The objective evidence suggests that the appellant conceded too much.
78 In any event, her Honour did not advert to the obvious hypothesis that the apparent failure of the appellant to complain about pain in his knee was due to the nature of the injury he sustained and to his relative immobility during the period he was off work. Certainly Dr McMahon was aware that the appellant had not complained to him about the knee for some two months after the accident. But that evidently did not alter Dr McMahon's opinion on causation.
79 Fourthly, the primary Judge overstated the materiality and cogency of Dr Harvey-Sutton's report, insofar as it addressed the question of whether the injuries to the appellant's knee were caused by the accident. No submission was made to the primary Judge or in this Court that the certificate issued by Dr Harvey-Sutton was conclusive evidence that the injuries to the appellant's knee were not caused by the accident for the purpose of assessing damages for economic loss. The absence of any such submission may reflect the form of Dr Harvey-Sutton's certificate (which did not specifically state that the injuries to the appellant's right knee identified by Dr Giblin were not caused by the accident). Alternatively, it may reflect a view that the conclusive effect of a certificate under s 61(2) of the MAC Act does not necessarily extend to a question of causation arising in a claim for economic loss: cf Pham v Shui [2006] NSWCA 373; 47 MVR 231, at [90]-[91], per Santow JA, with whom Bryson JA and Brereton J agreed; Motor Accidents Authority (NSW) v Mills [2010] NSWCA 82; 55 MVR 243,, at [60]-[62], per Giles JA, with whom Tobias JA and Handley AJA agreed. In any event, the parties proceeded on the basis that nothing in the certificate was conclusive for present purposes.
80 In preferring Dr Harvey-Sutton's opinion over the opinions of the three medical practitioners relied on by the appellant, the primary Judge acknowledged that there were difficulties in the path of doing so. Her Honour accepted that there was no evidence as to Dr Harvey-Sutton's qualifications or experience and that Dr Harvey-Sutton did not have access to Dr Giblin's post-operative arthroscopy report. His Honour also observed that Dr Harvey-Sutton did not know, at the time she prepared her report, whether Dr Giblin had performed a chondroplasty procedure at arthroscopy. In fact, as her Honour acknowledged, Dr Giblin had performed such a procedure.
81 It might be thought that these matters detracted substantially from the cogency of any opinion expressed by Dr Harvey-Sutton on the question of whether the injuries or disability sustained by the appellant to his knee were caused by the motor vehicle accident. However, there are other difficulties with Dr Harvey-Sutton's report on that causation question.
82 Dr Harvey-Sutton, having dealt with the haematoma of the right calf then, for reasons that are not entirely clear, focussed her attention on whether the ossified lesion in the appellant's right knee was caused by the accident. Her report referred to Dr Giblin's summary in his report of 17 February 2007 of his findings from the arthroscopy of 21 November 2006, but did not consider whether there was a causal relationship between the accident and the injuries to the appellant's right knee as recorded in those findings. As Mr Turnbull accepted in argument in this Court, the injuries described by Dr Giblin were quite different and more extensive than an ossified lesion. There is simply no reasoning process in Dr Harvey-Sutton's report that would justify concluding that the injuries identified by Dr Giblin did not exist or were unrelated to the accident. In short, properly understood Dr Harvey-Sutton's report expresses no opinion as to the causal connection, if any, between the accident and the condition of the appellant's right knee revealed by the arthroscopy. (I should interpose that this is not necessarily a criticism of Dr Harvey-Sutton. Her role was not to provide an expert report in relation to the appellant's claim for damages for economic loss.)
83 Dr Harvey-Sutton did not have Dr Ellis' report available to her. Accordingly her own report did not comment on Dr Ellis' opinion and on the reasoning supporting that opinion. It is significant that Dr Ellis identified the injuries sustained by the appellant by reference to Dr Giblin's findings as a result of the arthroscopy, rather than as an ossified lesion. Dr Ellis, unlike Dr Harvey-Sutton, had a copy of Dr Giblin's arthroscopy summary and knew that Dr Giblin had performed chondroplasties. Dr Ellis would also have known from the arthroscopy summary that Dr Giblin, contrary to Dr Harvey-Sutton's assumption, had performed a lateral meniscectomy. The evidence does not explain the importance of the lateral meniscectomy, but Dr Harvey-Sutton's reference to the procedure suggests that she thought that the performance of such a procedure might have had some significance for her assessment.
84 Fifthly, Dr Harvey-Sutton, alone of the medical practitioners, appears to have believed that the ossified lesion affected the appellant's left knee, not the right knee. Her report stated that she had confirmed this opinion by a review of the radiological imaging. Yet there is no suggestion in the other reports of any injury to or impairment of the appellant's left knee. Dr Giblin's contemporaneous records show that the X-rays and MRI scan were done on the right knee.
85 The matters to which I have referred make it quite unsafe, in my opinion, to rely on Dr Harvey-Sutton's report in order to conclude that the injuries to the appellant's right knee, identified by Dr Giblin's arthroscopy, were not causally related to the accident. On the contrary, when the evidence is taken as a whole it comfortably leads to the conclusion that, on the balance of probabilities, these injuries were caused by the motor vehicle accident on 23 June 2005.
86 Accordingly, in my opinion, the appellant discharged the burden of showing on the balance of probabilities, that the injuries to his right knee, identified by Dr Giblin, were caused by the motor vehicle accident: Purkess v Crittenden [1965] HCA 34; 114 CLR 164, at 167-169, per Barwick CJ, Kitto and Taylor JJ.