Bird v Uniting Church in Australia Property Trust (Q) [2015] QDC 243

The plaintiff’s claim failed principally because she was an unimpressive witness whose credibility could not be accepted in the light of contrary evidence from her G.P, supported by contemporaneous records and bolstered by other unsavoury conduct, which was less than frank and honest.

Long SC DCJ:

Reliance on an incident at the client’s residence on 29 August 2005

[61] Accordingly, assessment of the plaintiff’s evidence is of critical significance and that begins with her evidence in explanation of her notations in respect of Mr Nosalek and dealing with him on 22 as well as 29 August 2005.
[62] As has been noted, the plaintiff’s case depends upon proof that she suffered injury as a consequence of an incident that occurred when she was performing her work duties, at Mr Nosalek’s residence, on 29 August 2015 and that this was an iteration of avoidable risk to which she was unreasonably exposed by her employer. Critically, her case then depends on the acceptance of her evidence of such an incident, as the only living witness to what occurred in her dealings with Mr Nosalek.
[63] The defendant challenges the plaintiff’s account and contends that the evidence points to a conclusion that she has fabricated her contention that she suffered injury in the course of assisting Mr Nosalek on 29 August 2005.
[64] At the very least, it can be accepted that as contended by the defendant, there were
obvious difficulties in the plaintiff’s evidence and has is noted above, she was unimpressive as a witness in dealing with the notations she made as to her dealings with Mr Nosalek. As a general observation she tended to wax and wane between presenting as a verbose person and prone to respond, at times, in a way that was unrelated to a direct response to questioning and often in a sense of providing unnecessary information, and a presentation of evasiveness, or, at least, unpreparedness to attempt to explain apparently difficult or incongruent features of her case.
[65] More concerning, are some considerations which, at the very least, raise particular need for caution as to the plaintiff’s evidence and, at the very least, are indicative of a need to look for some contextual or circumstantial support, before acceptance of the plaintiff’s essential contention.
[66] In particular, there is some difficulty in reconciling the plaintiff’s evidence as to there being a traumatic incident in relation to her arm and an immediate sense of painful trauma, with the evidence of her general practitioner, Dr Weber, and as can be noted from the following evidence, it is apparent that the plaintiff was conscious of this difficulty:
“All right. Now, what, if any, medical advice had you sought after you sustained this injury?– I don’t recall seeking medical advice straight away other than maybe I – I knew that I was going – I took – I remember that I took, you know, some days off because I was in so much pain and—– Do you remember how many days that was, sorry?– No, I don’t recall. Probably three or four days. HIS HONOUR: Well, can you just explain – when did you—–?– Mmm. —–first become aware of any difficulty?– Well, pain initially and then—– When you say ‘initially’, what do you mean?– Well, when – when the client grabbed my arm and pulled himself up on my arm and then pushed himself up on my shoulder, there was extreme pain and discomfort—–

[83]. Where?– In my – in my arm and my shoulder and my neck and my jaw. So – and I had prior injury and I did have prior jaw problems as well, but not to that extent. And – but – because I had been working fairly vigorously for you know an hour and a-half beforehand, I – I sort of put it down to the fact that I was tired, I was exhausted, and that this – yeah.”

“MR MOULD: All right. Well, what contact did you make with any doctor?– I – I – I did go to see my doctor at the time at clinic and—– And who was that?– No, I can’t recall her name. What clinic?– At the Pomona Medical Centre. Often I would – I didn’t always see that one doctor, I often would see whoever was available. Do you remember—–?– It was a female. Do you remember when you saw the doctor?– No. Okay?– But I know – I – I did tell her the whole story but, yeah, but probably she – she may not have—– All right, well—–?– —–taken note of the whole story. Okay?– Okay. And so when was that, that you saw her – in contact—–?– I think within two weeks of the incident. Mmm-hmm?– Injury, yeah.”
Then and when asked to explain what she meant by “the whole story” and what she told the doctor was the reason for the consultation, the plaintiff said:
“Okay. I was possibly asking for a medical certificate to have time off work, ’cause you know I’d – they were relying on me to – to do other work, I was part of a team. So, I was probably there for a medical certificate and – so I was asking her for that and I was explaining that I was having ongoing pain, that the – I thought it was the fibromyalgia but the pain wasn’t going away and maybe I needed a referral to a physio, and I think she did refer me to a physio straight away. MR MOULD: What did you, if at all, say to her in relation to what had happened that day on the 29th?– I believe I told her the whole story of the prior job and that—–
HIS HONOUR: What’s ‘the whole story’, what do you mean?– That the – the – I – I didn’t just tell her about what – how the injury, the incident happened, I told her that I was exhausted by the time I got there because of the prior job and that Wendy hadn’t given me any direction and she’d gone out the door without telling me that he’d changed. But – yeah, and I’m – do babble on at times, apparently. I’ve been told. So, she may not have got all the details.”
[67] Dr Weber, who explained that she had a clear memory of the plaintiff, as a patient, said she had consulted with her on many occasions at the Pomona Medical Centre, in 2005 and 2006. Dr Weber confirmed that she saw the plaintiff on 30 August 2005, in respect of two issues. Dr Weber explained that the primary reason for the consultation was, as she recorded in the notes: “Domestic Violence Issues”. Dr Weber also referred to the immediately preceding entry in the records, which in accordance with the usual practice of record keeping, indicated a note recorded, at 2.30pm on 29 August 2005, by the registered nurse at the medical practice and in relation to a telephone call from the plaintiff, in the following terms:
“Phone requesting APPT with doctor today – said it was urgent. On questioning she needed to speak to Dr Weber re situation at home. Not
in immediate danger, concerned re husband’s drinking, gambling and other things. Wanted a referral to a psychologist. Suggested lifeline may be able to help now. Appointment made for Tuesday with Dr Weber.”
[68] On the next day, Tuesday 30 August 2005, Dr Weber saw the plaintiff from about 1.11pm and she referred to her contemporaneous notes, which recorded the following:
“Two issues today 1. injured right shoulder This is an old injury, occurred many years ago, occasional flair up when overdoes things, was doing heavy cleaning job yesterday, now right shoulder throbbing, usually results with heat packs, acupuncture, hydrotherapy, exercise – will start doing these things ASAP, also suggested hot packs Needs certificate for light duties at work 2. marital problems, stress levels high Husband, Noel, is gambling away a lot of money (approx. 14 thousand dollars), drinking daily, aggressive, has been physically abusive on three occasions, puts her down, emotionally abusive Had enough, feels can’t cope anymore”.
[69] In relation to that consultation, Dr Weber gave the following evidence:
“Was there any discussion at that time about an incident dealing with a respite patient?– No, not at that time. And I feel confident of that because if she had discussed that with me, I really – I would have done the consultation differently. So, if she had given me that history of – of a client pulling down on her shoulder, I would have been looking immediately for an acute shoulder injury, a rotator cuff tear for example. And I would have ordered an ultrasound probably on that day of the shoulder, looking for an acute shoulder injury with that kind of history, thinking of – because it would raise different diagnostic possibilities than just an overuse sort of injury in terms of you know, heavy cleaning. The second reason I’m pretty confident that she didn’t tell me that, because if she’d given me that history, where there was some really acute you know, incident at work, I wouldn’t have been saying to her, ‘Well, have a think about whether you want to claim Workcover’. I would have said to her, ‘This is a Workcover injury; you need to claim Workcover’ and I would have started the Workcover claim on the day. The fact that I – I didn’t and I sort of talked to her about whether it should be or not, you know, I would never have done that, if she’d had – if she’d presented with a clear-cut history of you know, a client sort of pulling down on her shoulder, because if she’d said that and she’d said she’d had immediate pain, I would have said, ‘Okay. Well, that’s Workcover, let’s get that going.’ All right?– And I sort of prevaricated there because she gave the history of it – of having no previous shoulder injuries and having a flare of that injury. So, because I was sort of, like, okay, you know, there wasn’t an acute history of a trauma, or injury at work, that’s why I sort of said to her, ‘Well, you might be able to claim at Workcover but you know, you may not’ because I didn’t necessarily think she’s been successful in a claim an that’s why I said to her, ‘Go away and have a think about it. If you do want to go down that – that path then we can activate a Workcover claim’ which is – which is what we did. And as I said, you know, if she’d given that acute history, I would have almost certainly ordered a shoulder ultrasound on that day—– Now?– —–but I didn’t.”
[70] Dr Weber also said that although she saw the plaintiff again on 15 and 30 September 2005, it was not until 18 October 2005 that the plaintiff raised any complaint about neck pain. Dr Weber then referred her for an x-ray and the plaintiff returned on 7 November 2005 and, as Dr Weber explained:
“Can you just explain again what they were?– Yes. So, she – she came back to discussing ongoing neck and shoulder pain and she’d, I think, read the X-ray report and she was quite concerned about – about the – the report which basically said that she had some degeneration through multiple joints through – through the neck. So, we discussed the – the X-ray report. And she also was reporting that she had a sore right knee, at that point. I – I confess that Mrs Bird used to come with lots of sore aches and pains in multiple, sort of, areas that at times – she’s a lady who has quite wide-spread degenerative joint problems but also fibromyalgia, so, she – as you can see through my notes and my lists I often saw her about various sore bits for joints or for muscles, etcetera.”
[71] Dr Weber also gave the following concerning evidence:
“Doctor, I could take you then to the one entry where you’ve said you depended – that’s 11 September ’06—–?– Mmm-hmm. —–and – now do you have an independent recollection of this issue?– I certainly do. And why’s that?– Because I was a bit gobsmacked to be asked to write this letter in the context of—– Well, just slow down. Now, who asked you to write a letter?– Mrs Bird asked me to write a letter to her – she’d applied for life insurance and she’d been knocked back because she hadn’t declared neck or shoulder injuries previously and she wanted me to write a letter to the insurance company stating that those were not pre-existing conditions prior to her application for the insurance in November ’05. Mmm?– And, you know, I – I said – I said to her, as – as I’ve documented, that there was no way I – I could do that, because I had so – so much – so many consultations with her talking about her neck and her shoulder, and also this previous – you know, prior to the 30th of – of August, you know, in old records I had history of – of old problems there. So, I said to her I was absolutely not prepared to do that, because it – I thought it was dishonest. All right. Well, you weren’t prepared to certify she was a cleanskin at that time?– No, that’s exactly right, ’cause she wasn’t. And so that’s why it sticks in my mind, because I was really surprised because we’d been through all these multiple, you know, consultations of, you know, well, prior to November ’05 with – with complaints. And then she wanted me to write a letter to say that they weren’t pre-existing. So—– Yes?– —–it stuck in my mind at the time, ’cause I – I really was very
surprised to be asked.”
[72] Although and perhaps surprisingly, given the apparent implication in the plaintiff’s evidence in chief that she may not have initially complained about the incident with Mr Nosalek, to Dr Weber, some attempt was made to establish discrepancy in Dr Weber’s evidence on that point. However, there was no challenge to Dr Weber’s evidence as to the request for a false letter. Such evidence may give rise to considerable concern as to the veracity of the plaintiff’s evidence and may tend to
permeate the whole case, given the ordinary reliance in cases of this type, upon
acceptance of the honesty of a plaintiff’s reporting as to the incidents and effect of injury to their body.

Conclusion as to Liability
[109] There is no good reason to not accept Dr Weber’s evidence. On the contrary, she was an impressive witness and she logically and rationally explained her position has to what she was told on 30 August 2005. Further, her position was clearly confirmed by contemporaneous notation.

[110] An alternative submission for the plaintiff is that acceptance of Dr Weber’s evidence,
“does not then mean that the accident did not happen, for the client indicated that she considered it to be a flare up of her fibro myalgia”. However, the obvious problem is that this submission depends on the logically improbable, if not inconceivable, premise that, as the plaintiff’s case is based, her shoulder (at least) was subjected to an action by Mr Nosalek that immediately occasioned pain and that this was contemporaneously reported to Ms Hanrahan and then this mechanism of injury was specifically related to Mr Bird, subsequently on 29 August 2005, yet and when consulting with Dr Weber about it on 30 August 2005 and in the context of a discussion of a certificate for light duties at work, there is only specific reference to a “heavy cleaning job” at another location.
[111] Dr Weber’s evidence as to her consultation with the plaintiff on 30 August 2005, is obviously a fundamental obstacle to the acceptance of the evidence of both the plaintiff and Mr Bird. Further, neither reference to the plaintiff’s notation made at Mr Nosalek’s residence on 29 August 2005, nor Ms Hanrahan’s evidence as to her dealings with the plaintiff in respect of her attendance at that residence, in any way improves the position for the plaintiff. In these circumstances and also having regard to the unchallenged evidence of Dr Weber, as to the plaintiff’s subsequent attempt to have Dr Weber create a letter containing known falsity as to the plaintiff’s physical condition and in order to achieve the purpose of obtaining an insurance policy, it is not appropriate that the plaintiff’s evidence as to what occurred when she was caring for Mr Nosalek, be accepted or acted upon.
[112] Accordingly, the plaintiff’s claim is not established as being more probable than not and therefore, there should be judgment for the defendant.
(footnotes omitted)

 

David Cormack – Brisbane Barrister & Mediator

Related Posts

Recent Comments

    Categories