Yang  Industrie Clothing Pty Limited [2022] NSWPICPD 10 – 16/03/2022


This matter was heard before the NSW Supreme Court and determined the appropriate weight that ought to be given to the injured worker’s clinical histories when determining the existence of a later claimed injury.

Background Facts

The Worker in this matter claimed to injure his neck and right shoulder in a work accident during the course of his duties. The Employer accepted that the Worker had sustained a right shoulder injury, this was borne out by the Worker’s medical evidence at the time and subsequent to the injury. The dispute in this matter was whether the Worker’s neck injury was caused by the work accident.

At the time of the accident, and for years after, there was no reporting of the Worker’s claimed neck injury in his medical practitioner’s notes or reports. It was only when the Worker attended an examination by a new doctor that he began claiming the presence of a neck injury. The Worker was said to not have very proficient English, and that this may be a reason for his failure to notify his doctors.

At First Instance

It was alleged by the Worker that his neck injury was a direct result of the workplace incident (as opposed to later developing as a consequence of his right shoulder injury).

At the time, and subsequent to the incident, none of the Worker’s treating doctors’ clinical notes made mention of a contemporaneous neck injury (or symptomology thereof). Noting this absence of contemporaneous evidence, the Member held that on balance the Worker had not established that an injury had resulted from the frank incident in question.

It was claimed by the Worker that he was too ‘distracted’ by his shoulder injury throughout all of his medical examinations (over a number of years) to remember to have his neck injury assessed or treated. The Member found this to be an insufficient reason for the omission.

The Worker also argued that an omission of evidence cannot be construed as evidence in and of itself to the contrary. This principle, in accord with the relevant caselaw was found to be inapplicable in circumstances where detailed records of the Worker’s injury were to hand which were compiled over a number of years, by a number of medical practitioners, all omitting any reference to the Worker’s neck injury.


On appeal the Supreme Court of NSW found that the Member at first instance had not erred in applying the caselaw regarding the interpretation of contemporaneous clinical evidence. Distinction was made between drawing inferences from a total lack of clinical evidence and drawing inferences from omissions within otherwise thorough records of a Worker’s injury. The Member was therefore correct to find the Worker’s claim unsupported and undermined by these contemporaneous records.

It was held the Member did not err in his finding for the Employer with regard to the claimed neck injury.


This case will likely have a positive impact on the workers compensation space, especially for Employers in establishing the threshold issue of liability. Whether an injury to a body part is notified at the time or is subsequently notified after a period, this case demonstrates that contemporaneous clinical records of a Worker’s injury can prove to be crucial.

It is apparent from the reasoning of the Supreme Court that the absence of complaint is as persuasive as positive complaint; and as such, it is always recommended that clinical notes be requested regardless of the injury type or reporting date.  However, where body parts are only latterly reported in spite of earlier reported work injuries, particularly outside the notification periods, the liability decision must be informed by contemporaneous notes, and the onus should be on the injured worker to supply same for consideration.

Contributor: Alex Gaudie

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.