Australia: Clinical records defeat plaintiff's evidence

Philippiadis v Transport Accident Commission [2016] VSCA 1

The Court of Appeal decision of Philippiadis v Transport Accident Commission serves to reinforce the importance of clinical records as an objective record of a worker's symptoms and consequences in serious injury applications.

Despite no adverse findings of credit being made against the Applicant or his wife, the Trial Judge ultimately preferred the clinical records as a reliable record of the Applicant's symptoms. However, while courts are not bound to prefer the evidence of a general practitioner; in many serious injury applications where no attack is made on the Plaintiff's credibility, a general practitioner's evidence about symptoms and restrictions will be given considerable weight.

The decision at first instance

The Applicant, Mr Philippiadis, suffered injuries as a result of two separate transport accidents on 7 November 2008 and 3 February 2011. He issued two originating motion proceedings in the County Court seeking leave under s 93(4)(d) of the Transport Accident Act 1986 (Vic.) to recover damages for those injuries. The main injuries relied on by the Applicant were injuries of the neck arising from both accidents, in the context of a pre-existing neck injury.

According to the clinical records adduced at the hearing, the Applicant attended his general practitioner, Dr Lewis, on approximately 14 occasions between the 2008 and 2011 accidents. However, there were only two isolated references to neck pain in the records over this period. In addition, Dr Lewis provided reports indicating that the Applicant's neck pain did not appear to have worsened as a result of the 2008 accident.

Dr Lewis was not cross-examined by Counsel for the Applicant at the hearing. In addition, the Applicant was not directly cross-examined about the contents of the clinical records and reports of Dr Lewis, which contradicted his and his wife's evidence about the timing and severity of his alleged back symptoms.

His Honour Judge Cohen ultimately dismissed both of the originating motions, finding that neither the 2008 or 2011 neck injuries caused sufficiently serious consequences to meet the definition of serious injury. Based on the records and reports of Dr Lewis in particular, His Honour was not convinced that the Applicant's neck symptoms became "constant" following the first accident. This was despite a finding that the Applicant was a stoic person who did not exaggerate his evidence. Based on the entirety of the evidence, including the Applicant's own evidence, His Honour was not satisfied that the consequences of the 2011 neck injury were serious.

The Court of Appeal's decision

The Applicant sought leave to appeal the County Court's decision to the Court of Appeal on the basis that the trial judge failed to consider the entirety of the evidence and gave too much weight to the clinical records, among other grounds. However, leave to appeal was refused by the Court of Appeal (Redlich JA, Kyrou JA and Ginnane AJA) on the grounds that the application had no real prospects of success and there was insufficient doubt about the decision to justify leave being granted.

The Applicant argued that the Trial Judge erred in relying on the records of Dr Lewis as evidence that, contrary to the Applicant's own evidence, he did not suffer constant neck pain following the 2008 accident. It was submitted that the absence of recorded complaints in the records could be attributed to the Applicant's stoicism and that it would not be unusual for a doctor who regularly sees a patient for the same problems not to make a record of those problems in the records for each and every attendance. Another argument raised by the Applicant was the Respondent's failure to cross-examine the Applicant about the clinical records and the reports of Dr Lewis infringing the rule in Browne v Dunn, which holds that any matter on which a party proposes to rely on to contradict the evidence of a witness must be put to that witness.

The Court of Appeal found that the rule in Browne v Dunn had not been infringed, as no unfairness had been occasioned by the Respondent's failure to present the clinical records and reports to the Applicant. Their Honours noted that breaches of the rule generally occur where the adverse evidence that was not put to a witness is later tendered by the other party. In the present case, however, the records and reports of Dr Lewis had been tendered by the Applicant's own representatives and the Respondent was entitled to exploit any inconsistencies between the Applicant's evidence and the materials from Dr Lewis.

As to the use of clinical records, the Applicant's argument was essentially that the Trial Judge should have preferred the evidence of the Applicant and his wife over the materials from Dr Lewis. The Court of Appeal found that, while courts must be careful in relying on clinical records due to their selective summaries and the possibility of mistakes, the records will often "...constitute highly probative evidence" because they are independent and contemporaneous. Also, it would be expected that a patient visiting their long-standing general practitioner would likely tell them of health issues concerning them, which the general practitioner would record as well as note down their observations and any actions to be taken.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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