Den Hoedt & Anor v Barwick [2006] WASCA 196

Den Hoedt & Anor v Barwick [2006] WASCA 196 - WASCA 2006 case summary — Zoe

[57]

"You may note the initial consultation was just five weeks after the accident which occurred on 16-1-1997.

... She complained of low grade pain in her left shoulder. She gave a score of 6/10 on the visual analogue scale. She also stated that physical exertion would aggravate the pain. She localised the pain to the back of the shoulder in the periscapular region and also a more generalised pain extending down the whole of the arm. There was also a complaint of numbness of the little and index finger of the left hand with intermittent tingling sensation of the whole of the palm.

On examination there was no wasting of the muscles in the hand, left upper limb or the left shoulder. She localised the pain to the anterior part of the shoulder and also to acromioclavicular joint. Active range of movements at the shoulder in abduction flexion and rotation was assessed as almost normal range. Passive movements were also of full range but she did report some pain over the shoulder which she localised to the acromioclavicular joint where she was tender on palpation.

There was also tenderness over the tip of the coracoid process over the anterior aspect of the shoulder and over the anterior part of the rotator cuff. There were no tender areas in the muscles around the shoulder, back of the neck or thorax.

On review on 4-3-1997 there was no change in her symptoms. Examination findings in the shoulder were much the same. In her cervical spine, she was able to achieve 75-80% of the expected range of movements in flexion extension, lateral flexion and rotation to either side.

On review on 25-3-1997, she reported no improvement after the rotator cuff injection with steroid and local anaesthetic but in fact reported more pain in the shoulder region. On examination there was no tenderness over the rotator cuff.

For the first time she complained of pain over the anterior chest wall and examination findings over this area revealed tenderness over the acromioclavicular ligament and at the tip of the coracoid process. She was also tender in the acromioclavicular joint. The ligamentus region and the tip of the coracoid were infiltrated with steroid and local anaesthetic. Arrangements were made for review in two weeks to infiltrate the acromioclavicular joint. She expressed her concerns about the sloppy feeling in her upper arm muscles which I explained to her as due to lack of exercise and that those muscles needed reconditioning through an exercise program.

Final review on 8-4-1997 - she reported almost total disappearance of the left shoulder pain which came on three days after the acromioclavicular joint was infiltrated. She complained of pain in the elbow with radiation over the extensor aspect of the forearm and to some extent along the flexor aspect as well. An x-ray of the left elbow revealed no abnormality.

On examination there was tenderness over the lateral side of the elbow more into the flexor aspect of the forearm. There was definite tenderness over the proximal radioulnar joint region with only minimal tenderness over the lateral epicondyle. There was no increase in the pain on resisted extension of the fingers.

It was felt that the tenderness was related to underlying soft tissue injury of the joint and there was if at all very minimal evidence of lateral epicondylitis contributing to the symptoms. The change in the pain distribution pattern also raised the possibility of secondary myofascial pain (brachialgia). Tender area which was directly over the proximal radioulnar joint was infiltrated with steroid and local anaesthetic and to assess the outcome an arrangement was made for review. She was also referred to the Nuclear Physician for a bone scan.

... Betty Barwick made no mention of neck pain at any of the four consultations. I looked at the referral letter from Dr. John Cameron dated 5-2-1997 and even in his letter there was no mention of neck pain."

[138]

"NUGAWELA, MR: ... The offer my learned friend relies on is in one single amount of [ ]. It's not separated in either causes of action, which are separate causes of action and to that extent how does one discern whether in respect of the first accident the underlying sum offered was $10,455 or more or less? That is the reason why, I suppose, when I have made recommendations in this matter to file order 24A offers we broke them down according to the different ... defendants, so I say that your Honour can't take that order 24A offer into account at all. It's just uncertain. It's not broken down between different defendants.

JENKINS DCJ: There was no subsequent discussion between the parties to clarify that?

NUGAWELA, MR: Not in writing, your Honour, and I'm not aware of any oral discussions. My learned friend doesn't rely on Calderbank offers historically or thereafter, so our simple position is that we should simply (indistinct) as we moved for them, your Honour.

JENKINS DCJ: ... You seek just a general order that the defendant pay the plaintiff's costs full stop.

NUGAWELA, MR: For each accident, indeed.

JENKINS DCJ: Mr Brooksby?

BROOKSBY, MR: Your Honour, I didn't come here prepared for this sort of argument, but it does seem to me that the defendants have put in a joint offer of [ ] and the sum awarded by your Honour is less than that, irrespective of the apportionment, the defendants can turn to you and say, "Well, we made an offer. The trial wasn't necessary." That is the purpose of order 24A. The defendants should have their costs subsequent to the date of the offer. I don't know in fact that there's provision in order 24 for joint offers. I don't have the rules in front of me.

...

BROOKSBY, MR: ... Let me put it this way: this was an action which was tried as one action against both defendants and in those circumstances the defendants are entitled to put a joint offer in and I don't know that there's anything in the rules which says anything about breaking down an offer made jointly by defendants as joint tortfeasors.

JENKINS DCJ: They weren't sued as joint tortfeasors, were they?

BROOKSBY, MR: Not in the sense of having committed a tort at the same time or being equally responsible in a single tort.

...

BROOKSBY, MR: ... I don't know that it's incumbent upon the defendants to break down the figures. The defendants have simply offered [ ] which obviously is greater than the total awarded and I think in those circumstances the effect of order 24A suggest that the trial would - the purpose of order 24A obviously is to endeavour to resolve these matters and impose cost consequences in the event that if a reasonable offer is made and not accepted, the plaintiff should bear those costs and that's what has happened.

...

JENKINS DCJ: ... In this matter I make the following orders: (10 [sic] that there be judgment against the first defendant in the sum of $10,455.58; (2) that there be judgment against the second defendant in the sum of $3759.60; (3) that the first defendant pay the plaintiff's costs of the cause of action against him; and (4) that the second defendant pay the plaintiff's costs of the cause of action against him.

...

JENKINS DCJ: ... It should be clear from these orders that I have not exercised any discretion under order 24A rule 10 to make an order that the plaintiff pay either defendants' costs. The reason why I have not exercised that discretion is that I am simply not satisfied that order 24A applies in this situation and therefore I don't think it is appropriate for me to make the order."

[220]

"There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for 'non-economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'.

If the resulting amount on the scale so conceived is $15,000 or less, no damages are to be awarded by reason of s 79(4). ... The only criterion for the apportionment prescribed is the comparison of the severity of the non-economic loss, as disclosed by the evidence, suffered by the injured person in the case before the judge and that suffered in 'a most extreme case'. The statutory maximum may only be awarded in the latter case. The judge must then assign the case as found somewhere along the resulting scale.

...

... It is likely that, over time, experience will develop in assigning cases on the scale, just as earlier it did in the apportionment required for contributory negligence. But each case will necessarily depend upon its own facts. At least in the first instance, the determination of the 'proportion' is committed by law to the trial judge. He or she has the outside parameters which are fixed by the legislation. The task of determining the 'proportion' which follows may not be scientific or normative; but it is not wholly at large. A wide measure of discretion has always existed in fixing damages for non-economic loss. All that this legislation does is to require that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case'."

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Judgment (258 paragraphs)

Den Hoedt & Anor v Barwick [2006] WASCA 196 (28 September 2006)

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Legislation Cited (3)

Cases Cited (8)