Expert evidence: assumptions of fact & evidence at trial

McGrory v Medina Property Services Pty Limited [2017] QCA 234

Sofronoff P and Fraser JA and Brown J

In January 2011, the appellant suffered an injury to both shoulders while lifting a metal container containing ice during the course of her employment. Relevantly, the appellant did not attend upon her general practitioner until May of the same year based on an initial thought that her pain would cease over time.

The appellant was further examined by Dr Allan Cook, engaged by the appellant and Dr John Walters, engaged by the respondent, both of whom provided conflicting expert opinions on the appellant’s injury. The trial judge preferred Dr Walters when assessing quantum. The appeal turned on the assumptions of fact before Drs Walters and Cook and the evidence of the plaintiff at trial.

Sofronoff P and Fraser JA were not satisfied that the experts were presented with the same assumptions of fact:

[63] Conflicts in expert opinions can raise difficult problems for judges. Areas of specialised knowledge can raise issues about which it may be difficult to make judgments. Medical evidence given in personal injuries cases can sometimes be of this character. Particularly when two experts base their ultimate conflicting opinions upon exactly the same assumptions of fact, it may be a difficult task for a trial judge to determine which of the two conflicting views to accept.

[65] The respective medical practitioners were confronted, it seems, with differing presentations by the appellant upon examination. However, the problems presented to such experts had to be distinguished from the issues which the trial judge had to determine. The learned trial judge in this case was not limited by the same constraints as the medical experts. Unlike those experts, the trial judge had the benefit of comprehensive evidence of symptomology given by the appellant which had been supported in material respects by Ms Black and Ms Tucker. Having accepted that evidence the learned trial judge was obliged, as a matter of legal reasoning, to take those findings into account when assessing which of the experts’ opinions he should accept.

Relevantly, the primary judge found that the evidence of Dr Walters was to be preferred over that of Dr Cook because in three prior examinations, observations of the appellant’s range of movement in her shoulders was significantly greater than when examined by Dr Cook. However, Sofronoff P and Fraser JA found that this was an insufficient basis upon which to prefer the opinion of Dr Walters to that of Dr Cook:

[67] … It fails to take into account at all the findings which his Honour made, and which his Honour had correctly made, about the appellant’s evidence and that of Ms Black and Ms Tucker. Indeed, apart from being directly germane to the question of the symptoms caused immediately after the incident, that evidence was also relevant to the issue of “the plaintiff’s failure to seek medical attention” and the reasons for that failure.

Further, Sofronoff P and Fraser JA were critical of Dr Walter’s comment regarding the appellant’s failure to seek specialist medical advice:

[68] That observation was not one which it was relevant for Dr Walters to make as a medical practitioner. It was an argumentative observation that, if relevant, was one which the respondent’s counsel could make. It was not a medical opinion. It was also an observation that could be given no weight unless it appeared that Dr Walters was aware of the evidence which the appellant had given at paragraphs 18 to 25 of her Quantum Statement.

[69] Undoubtedly, in making that statement, Dr Walters was making the point that an inference could be drawn that the appellant had not suffered very much from the date of the incident until her resignation from the fact that she did not feel the need to seek medical attention. However, the appellant’s evidence, about which Dr Walters was ignorant, would not have allowed such an inference to be drawn. Her evidence about why she did not seek medical help was not challenged in cross-examination. No point as raised by Dr Walters was put on behalf of the respondent at trial and neither the inference drawn by Dr Walters nor his Honour’s subsequent finding were open.

 [70] In a case such as the present, in which the evidence as a whole contains ample material upon which findings of fact can be made about the post-incident symptoms of a plaintiff and in which a submission is expressly made about the significance of that evidence to the ultimate issues of injury caused by negligence, a trial judge who is performing the function of finding facts is obliged to consider that evidence comprehensively. Evidence of the kind given in this case cannot be put to one side so that a conflict between the evidence of medical experts is decided upon a narrow, and possibly mistaken, ground limited to their respective observations.

Granting leave to appeal, Sofronoff P and Fraser JA stated:

[71] … leave would usually be granted when there is a reasonable argument that there is an error to be corrected and when it is also necessary to correct a substantial injustice to the appellant. The appellant has demonstrated that there is a reasonable argument that his Honour erred in preferring the evidence of Dr Walters and, as a consequence, erred in concluding as he did in relation to the economic loss suffered by the appellant. In addition, the nature of the errors made by his Honour mean that the appellant’s real case has not yet been considered.

In relation to quantum, the issues in the appeal only concerned past economic loss and future economic loss. Sofronoff P and Fraser JA found that in the absence of a challenge to the amounts claimed, the appellant should be awarded $60,000 and $85,491 respectively.

David Cormack – Brisbane Barrister & Mediator

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