Romig v Tabcorb Holdings Ltd [2014] QSC 249

Per Dalton J

[36] There was variation in the understanding of the medical professionals (treating and expert) as to the exact mechanism by which Ms Romig had suffered injury on 10 September 2004: see the evidence of Mr Knight, Mr O’Sullivan, Dr Todman and Dr Weidmann. Dr Campbell’s view of the matter does not hold any weight as he did not take a proper history from the plaintiff, but relied on information sent to him by solicitors. Dr Kent did not give evidence, and his letter in support of time off work does not set out to describe the incident which caused the injury. Dr Heves could not be sure that she ever heard the version of events given by Ms Romig in evidence until 2006 – tt 4.23, 4.42 and 4.45, but she was not really concerned with the treatment of any complaint as to the plaintiff’s neck until 2006.

[42] Dr Scott Campbell, a neurosurgeon, gave evidence. His report was perfunctory and gave mixed conclusions of fact and law, in effect swearing the issue. This approach was also apparent when he gave oral evidence – he seemed to assume the role of an adjudicator, speaking of what the evidence was and what conclusions could be drawn from it. It was clear that he had never taken a proper history from the plaintiff – t 3.67 – and he did not know what the plaintiff did on 10 September 2004 – t 3.68. His view was that the plaintiff did suffer a prolapsed disc on 10 September 2004, he saw her radicular symptoms – pain radiating down her left arm and pins and needles in her left arm – as strongly supporting this.

[44] The plaintiff’s case was that she had a chronic pain disorder associated with the injury to her cervical spine. The plaintiff relied on the report of Dr Chris Cantor in support of this. Dr Cantor gave evidence and my impression is that he was thoughtful and attentive to the plaintiff’s condition. There are two difficulties with his opinion. The first is that Ms Romig was not co-operative with him in the sense that she gave a false past medical history, denying any history of mental health problems – see p 13 of his report – and would not, or could not, discuss matters relating to her psychological state despite repeated questioning – see p 16 of his report. No doubt problems such as these are not unique, and Dr Cantor certainly rejected the idea that they prevented him performing his function.

[45] However, the second problem affecting the report is more fundamental. The plaintiff’s counsel made no attempt to prove many of the factual premises on which Dr Cantor proceeded. This is despite my having drawn that specifically to counsel’s attention before the plaintiff finished her evidence – tt 2.32-34 – and my drawing counsel’s attention to the case of Makita (Australia) Pty Ltd v Sprowles.[3] My concerns in this regard are not technical but go very much to the basis upon which Dr Cantor proceeded.

[49] In accordance with the principles in Makita v Sprowles (above) I am not prepared to act on Dr Cantor’s opinion because it is so substantially based on matters which were not proved.

[57] The plaintiff’s evidence was that the 2008 surgery had helped her greatly. Neither Dr Campbell nor Dr Weidmann would have recommended surgery for Ms Romig. Dr Campbell said that the surgery had failed – t 3.78 – but this was another factual error on his part. Dr Weidmann accepted that the operation was successful and said the plaintiff’s history that she had lost pain and other symptoms in her arm as a result of the surgery is the result which would be expected of successful surgery – tt 3.89-3.90, 3.94, 3.95.

David Cormack – Brisbane Barrister & Mediator

 

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