Application of weight of expert evidence confirmed

  • Newsletter Article
  • Published 15.03.2021
Craddock v GH Varley Pty Ltd (NSWWCCPD 2021)
LINK TO DECISION

Key Takeaways

The NSWWCCPD handed down its decision in the matter of Craddock v GH Varley Pty Ltd (NSWWCCPD 2021) on 11 February 2021.

The primary issue considered was the application of the weight of contemporaneous expert evidence, and whether a deficiency of information regarding a pre-existing condition creates an unfair climate for medical specialists in forming their opinions.

Deputy President Snell allowed the appeal on the basis that the Arbitrator incorrectly concluded that the worker’s medical opinions had no probative weight. DP Snell concluded that a lack of correlation between the facts as proved and the assumed facts relied on by medical experts in reaching their views does not mean that the medical opinion is deprived of all weight.

Brief Facts

The worker’s injury occurred on 29 March 2017 when he was using an air rivet gun which was connected to compressed air. The worker was struck in the vicinity of his abdomen when the air hose blew off the machine. There was no dispute that the worker was injured during the course of his employment, however, the issue in question regarded precisely where the worker was struck by the air hose, and the nature of the injury sustained.

The worker was examined by Dr Chin on the same day as the injury occurred. Dr Chin recorded a ‘visible mark from airhose above umbilicus.’ The worker was subsequently examined by Dr Mendelsohn, Dr Plummer and Dr Draganic who recorded injury to the left side of the abdomen. The worker’s specialist doctors were not provided with the pre-existing history of abdominal and gastrointestinal pain and it was argued by the respondent that this impacted on the doctors’ diagnosis.

At first instance, Arbitrator Toohey entered an award for the respondent noting the probative value of contemporaneous evidence and further stating there was not a fair climate for the worker’s specialist reports given the worker’s pre-existing abdominal and gastrointestinal conditions. 

The worker appealed the decision alleging that the Arbitrator had erred in finding that Dr Chin’s record was ‘the only contemporaneous record’ and that the opinions of the worker’s three specialist reports were therefore not given in a fair climate. 

Decision on Appeal

Regarding the point of appeal relating to the value of contemporaneous evidence, Snell DP found that the Arbitrator erred in her fact finding by proceeding on the basis that any injury was confined to a precise location as identified by Dr Chin. In this respect, Snell DP considered that the evidence referred to general trauma to the abdomen, which was supported by the clinical notes of Dr Chin, who failed to identify the dimensions, shape, length or direction of the worker’s injury.

Snell DP explained that it was necessary for the Arbitrator to deal with the medical evidence with caution, noting that ‘busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury’ (Davis v Council of the City of Wagga Wagga (NSWCA 2004)).

In respect of a fair climate upon which a doctor can base an opinion, Snell DP found that the Arbitrator had incorrectly applied the principles in Paric v John Holland Constructions Pty Ltd (NSWLR 1984), stating that the worker’s three medical reports supported a causal relationship between the incident and abdominal nerve damage. Snell DP concluded that the worker’s pre-existing history of abdominal conditions had little to no relevance to the worker’s current diagnosis. The DP held that it was not evident the extent to which the deficiency in the history regarding a prior abdominal condition, had influenced the weight of the medical opinions. 

The Arbitrator’s decision on 8 September 2020 (amended 17 September 2020) was revoked, and the matter was referred for re-determination by a different Arbitrator. 

Implications

The crux of Snell DP’s findings was that it is necessary to assess what weight should be afforded to the medical opinion in the circumstances of the particular case, regardless of deficiencies in respect of the history taken by the medical practitioners. 

Care should be taken in instructing qualified experts to ensure that they are provided with all relevant background information. This will assist in determining the weight that is attached to the expert’s report.

Graham White

Special Counsel

P: 02 8257 5712

Email Graham