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[2006] WASCA 196
Court of Appeal (WA)
2006-09-28
Wheeler JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DEN HOEDT & ANOR -v- BARWICK [2006] WASCA 196
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Citation : BARWICK -v- DEN HOEDT & ANOR [2004] WADC 10
Appeal - Costs - Injuries arising from two separate accidents - Defendants jointly offered a single amount in settlement which exceeded the total amount of damages awarded against defendants - O 24A r 9 Rules of the Supreme Court 1971 (WA) does not apply to a joint offer where defendants are severally, but not jointly or jointly and severally, liable - Whether Judge should have taken defendants' offer into account in exercise of general discretionary power to award costs - Where defendants did not request Judge to exercise general discretionary power
Crossappeal - Assessment of damages for personal injuries - Whether certain findings of fact were reasonably open on the evidence - Award for nonpecuniary damages - Section 3C(2) Motor Vehicle (Third Party Insurance) Act 1943 (WA) - Meaning of "a most extreme case" - Section 3C(3) Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C
Rules of the Supreme Court 1971 (WA), O 24A, O 66 r 1
Crystal Wall Pty Ltd v Pham [2005] NSWCA 449
Dell v Dalton (1991) 23 NSWLR 528
Dobb v Hacket (1993) 10 WAR 532
House v The King [1936] HCA 40; (1936) 55 CLR 499
Marsland v Andjelic (1993) 31 NSWLR 162
Messiter v Hutchinson (1987) 10 NSWLR 525
Murray River North v Midgley [2006] WASCA 104
R v Gallagher [1998] 2 VR 671
Southgate v Waterford (1990) 21 NSWLR 427
Thomas v Bass [2006] WASCA 59
Donald Campbell & Co Ltd v Pollack [1927] All ER Rep 1
Hodi v Kelly [2004] WASCA 38
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Lyszkowicz v Colin Earnshaw Homes Pty Ltd [2002] WASCA 205
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Malliaros v Moralis [1991] VicRp 86; [1991] 2 VR 501
Marshall v Lockyer [2006] WASCA 58
Van Velzen v Wagener (1975) 10 SASR 549
Vandeloo v Waltons Ltd [1976] VicRp 6; [1976] VR 77
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Buss JA. I agree with them, save for his Honour's conclusions in respect of ground 7.1 of the cross-appeal, and I, too, would dismiss both the appeal and the cross-appeal.
2 So far as ground 7.1 of the cross-appeal is concerned, I accept that the expression "a most extreme case" in s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 refers to a class of cases, rather than to some single hypothetical most extreme case. Strictly, her Honour was in error in referring to "the" most extreme case, rather than using the indefinite article found in the language of the section. However, in my view, this was not a case in which it was necessary for her Honour to turn her mind to that distinction, or in which the failure to do so would have made any difference.
3 When one is considering a very serious injury, of a type which is capable of falling into the category of "a most extreme case", or which is perhaps close to that category, it will be important to bear in mind that there will be a class of cases, some of which may be worse than others, falling within the category of "most extreme case". In a case of that kind, a comparison with a single hypothetical "most extreme" case, such as quadriplegia, may lead to an erroneous conclusion that a very serious case does not fall into that category, or to the award of an erroneously small proportion of the maximum amount available for cases falling within that category. This case is very different.
4 Her Honour's task in the present case required a comparison of the injuries in the present matter with the class of injuries which might be found in the category of most extreme case. Her Honour made a comparison between these injuries and an example of a case falling within that most extreme category, and found the present injuries to be appropriately compensated under an award of general damages of 3 per cent in comparison with that case.
5 I do not think that the section requires that a Judge assessing damages is required to envisage a number of examples of cases which may fall within the most extreme category, and to compare the injuries in question with all of them, before arriving at an appropriate percentage. An application of the methodology described by Gleeson CJ, Kirby P and Meagher JA in Southgate v Waterford (1990) 21 NSWLR 427, at 440 - 441, required her Honour to engage in the following process. First, she was to consider and make findings on the evidence which her Honour did. Then it was necessary for her Honour to conceive "a
most extreme case", quadriplegia being an example of such a case. Finally, her Honour was to apportion the amount to be awarded somewhere between nil and the maximum available, keeping in mind that the maximum was available only for a most extreme case. It seems to me that her Honour did all of those things.
6 Even if, contrary to the view which I have taken, it was necessary for her Honour to conceive of not one, but a number of potentially most extreme cases, and to evaluate the damages in this case by reference to each of them, it seems to me most unlikely that her Honour would have increased the apportionment at which she arrived by more than 2 per cent, so as to arrive at an amount in excess of "amount B". In that event, there would be no difference in the result. Finally, and in any event, even if I were to perform the task for myself by evaluating the damages by reference to not a single most extreme case, but by reference to a range of cases potentially falling within that category (including, by way of example, a total loss of sight of both eyes, or perhaps damage to respiratory function which left a person effectively bedridden), I would be inclined to agree with her Honour's conclusion that the appropriate award would be one of the order of 3 per cent of a most extreme case.
7 PULLIN JA: I have read the draft reasons of Buss JA. I agree with those reasons and have nothing to add.
8 BUSS JA: The respondent was the plaintiff in proceedings in the District Court against the appellants as defendants. The respondent claimed damages for personal injuries suffered in two motor vehicle accidents. The first occurred on 16 January 1997 and the second on 13 January 1999. The first appellant was the defendant in respect of the accident on 16 January 1997, and admitted his negligence caused the accident. The second appellant was the defendant in respect of the accident on 13 January 1999, and he also admitted his negligence caused the accident.
9 The respondent, in her statement of claim, alleged that as a result of the first accident she suffered injuries, as follows:
"a) injury to left shoulder;
b) injury to neck;
c) cervico-brachial pain syndrome;
d) facetal dysfunction in neck;
e) brachial plexus irritation or cervical nerve root injury to neck region;
f) rendering symptomatic an asymptomatic degenerative condition in the neck in association with disc protrusion;
g) rendering symptomatic an asymptomatic arthritic condition in the neck;
h) acceleration or exacerbation of pre-existing degenerative or arthritic processes in the neck;
i) stress and/or anxiety and/or reactive depression and/or conversion disorder and/or other psychological or psychiatric disturbances;"
The respondent pleaded that, as a result of the second accident, the injuries she suffered in the first accident were exacerbated.
10 Each appellant, in his amended defence, alleged that:
(a) the accident caused by his negligence was of such a minor nature as to be unlikely to cause any or any significant injury to the respondent; and
(b) all, or alternatively most, of the respondent's injuries resulted from:
(i) a non-compensable fall on 16 December 1997, as a result of which she fractured her left humerus; or
(ii) the respondent's pre-existing and unrelated chronic obstructive airways disease and osteoporosis.
11 The proceedings were tried before Jenkins DCJ. Her Honour awarded the respondent damages against each of the appellants. As against the first appellant, in respect of the first accident, her Honour awarded a total of $10,455.58, comprising past economic loss of $4720 and past special damages of $5735.58. As against the second appellant, in respect of the second accident, her Honour awarded a total of $3759.60, comprising past economic loss of $2240 and past special damages of $1519.60.
12 On 16 January 1997, the respondent, who was born on 9 April 1951, boarded a bus driven by the first appellant. She was carrying several shopping bags which she placed on the floor of the bus to enable her to display a ticket to the first appellant. As the respondent was picking up her bags, the first appellant drove from the bus stop and almost immediately commenced a U-turn. He then activated the brakes, and the respondent, who was standing, lost her balance and fell against a ticket-validating machine. Her left shoulder made contact with the machine and this prevented her from falling.
The circumstances of the non-compensable fall
13 On 16 December 1997, the respondent fractured her left humerus when she tripped and fell at home.
14 On 13 January 1999, the respondent was sitting on a bus driven by the second appellant. He suddenly applied the brakes heavily, and collided with the rear of a utility truck travelling in front of and in the same direction as the bus. The respondent was thrown forwards. Her forward motion was retarded by the seat in front of her, which she grabbed with her hands.
The respondent's injuries, symptoms and medical treatment arising from the first accident
15 The respondent gave evidence that on 17 January 1997 (the day after the first accident) her left shoulder was very sore and she therefore consulted her general medical practitioner, Dr John Cameron. She said her left shoulder was "very swollen and bruised", and she had "a terrible pain" in the left section of her neck and shoulder.
16 In a report dated 14 March 1997, Dr Cameron said that when he examined the respondent on 17 January 1997 she had swelling and bruising over her lateral shoulder, but a good range of movement. He reviewed the respondent on 22 January 1997 and noted that she had a good range of movement in her shoulder, but had pain with resisted movement.
17 In a report dated 19 November 1997, Dr Cameron said that the respondent still suffered from pain affecting her left shoulder. She did, however, have a good range of movement in the shoulder. He recorded the respondent as having said that she was unable "to do much work at home as even a small amount of housework can aggravate her left shoulder pain". Dr Cameron expressed the opinion that the respondent's shoulder pain was attributable to a soft tissue injury, and that her prognosis was "good". He did not foresee any permanent disability.
18 On 5 February 1997, Dr Cameron referred the respondent to Dr Baskaranathan, a consulting physician, who examined her on 25 February 1997. He reviewed her on 4 March 1997, 25 March 1997 and 8 April 1997. Dr Baskaranathan did not subsequently examine the respondent. In a report dated 24 July 2001, he summarised the history which the respondent had given him, and also his assessment and treatment of her injuries:
"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."
19 In April 1997, Dr Cameron referred the respondent to Dr Serge Bajada, a consultant neurologist. Dr Bajada arranged for x-rays of her cervical spine. A report dated 18 April 1997 from the radiologist states:
"The alignment [of the cervical spine] is normal and a reasonable range of movement is demonstrated. The disc spaces show only minor degenerative change with slight narrowing mainly at C5/6 and C6/7. There is early facet joint degenerative change mainly on the right C3/4 and C4/5. There is some osteophytic narrowing of the right C3/4 foramen. Some generalised reduction of bone density may be present."
In a report dated 8 May 1997, Dr Bajada stated that investigations carried out in relation to the respondent were "all satisfactory with the radiology showing no reason for nerve root irritation or problems further down at brachial plexus level". He added that her "electrophysiological tests are likewise normal with entirely normal conduction both proximally and distally through the left upper limb". Dr Bajada was of the opinion that further neurological investigation was not "going to be helpful".
20 In May 1997, Dr Cameron referred the respondent to Dr Keith Black, a rheumatologist. Dr Black saw her on 5 June 1997. In a report of that date, Dr Black said:
"The next day [that is, the day after the first accident] the shoulder was really painful and swollen and she then developed pain in the neck and diffusely in the left arm to the left wrist area. She had an injection of some sort with no benefit. She was then sent to Baskar and he arranged an ultrasound of the shoulder which is normal and he then injected her left elbow. I am not quite sure what happened here but apparently she started jerking and felt dizzy and almost fainted. The next day she grabbed something with the arm and developed electric shocks from the elbow to the hand. These were persistent and severe for a month and they are still present.
On examination neck movements are satisfactory. She has pain on moving the left shoulder. There is mild loss of extension of the left elbow and pain on the flexor and extensor aspect of the elbow. There is mild global weakness in the arm and the reflexes are preserved.
... I suspect this is all coming from the neck although it is a bit hard to be sure what is going on. ..."
Dr Black reviewed the respondent on 25 June 1997. He formed the view that the cause of the respondent's "arm problem" may be the left C6/7 posterolateral disc herniation revealed by the scan ordered by Dr Bajada. Dr Black therefore referred her to Dr Duncan Anderson, a specialist in pain management.
21 Dr Anderson examined the respondent on or about 15 July 1997, and in his report of that date, he noted:
"At present she gets pain radiating down her arm to her elbow. If she hangs out the washing the pain goes into her hand. If she straightens her elbow she gets shooting pains into all her fingers.
She has had some steroid injections in her shoulder and elbow. Also some physiotherapy and analgesics.
There was not a lot to find on examination. There was some tenderness over the left trapezius and the right side of her neck.
..."
22 During 1997 the respondent consulted Dr Cameron on a regular basis. She took up to eight Panadeine forte per day, and also Celebrex, for her pain. Dr Cameron prescribed Zoloft, an antidepressant, but the respondent said this medication made her feel worse.
The respondent's injuries, symptoms and medical treatment arising from the non-compensable fall
23 Mr George Carter, an orthopaedic surgeon, treated the respondent for her fractured humerus. He saw her on seven occasions between 18 December 1997 and 10 September 1998. He assessed her again in November 2000.
24 Mr Carter treated the respondent only for injuries related to her "left shoulder complex" and not for her "cervical spine injuries". He recorded her complaints, in a report dated 23 November 2000 to the appellants' solicitors, as follows:
"... She claims pain in the anterior arm and throbbing after doing activities such as vacuuming etc. This symptom is present at the fracture site as well as in her neck.
It was felt that the pain of the fracture site is related to that fracture and the cervical spine pain is separate. She has restriction of movement in the arm which prevents her from hanging up washing on a line. She has difficulty in lifting weights, i.e. full cooking pots and this would be due mainly to the cervical spine injury. If she lies on the left shoulder, she awakens with stiffness and throbbing. This is related to the arm injury."
In a report, also dated 23 November 2000, to the respondent's solicitors, Mr Carter said:
"I treated Mrs Betty Barwick for a fall at home on [sic] in December [1997] as a result of which she fractured the neck of her left humerus. This has healed with some deformity and restriction of movement.
As a result, she is complaining of anterior arm pain when she is doing such activities as vacuuming and sweeping. She has a restriction of movement and cannot hang up washing on a line. She has difficulty lifting heavy weight, which may be partially due to the wasting in the deltoid muscle of the left shoulder, but also due to her neck problem. If she lies on it, it stiffens up and she gets a throbbing pain in the morning. This would be related to the arm injury rather than the cervical problem.
On examination today, the wasting of the deltoid and infraspinatus muscle was noted. There was a bony deformity tenting the deltoid anteriorly and this was caused by the anterior margin of the distal fragment of the fracture which is now fully united on the last x-rays viewed, which I believe were taken in January 1999, some 12 months or so after the original accident.
Her range of movement is limited to 30 to 40o of flexion. She has a positive impingement test on internal rotation. Her external rotation is 80% of normal with internal rotation 50% of normal. She is limited to 45o of total abduction. She is quite tender over the anterior fragment and has gone on a disability support pension."
Mr Carter expressed the opinion that the "percentage of disability as a result of the humeral fracture is 50% of the use of the limb from the shoulder down", and said that in consequence she would be unable to perform cleaning duties.
The respondent's injuries, symptoms and medical treatment arising from the second accident
25 The respondent said in evidence that immediately after the second accident she felt pain in the lower part of her neck, on the left side, and pain in her arm. She did not sleep on the night of the accident and, in addition to the pain, she had "pins and needles" in her fingers. The pain was more prolonged and intense than the pain she experienced after the first accident. The respondent denied that the second accident had aggravated the injury to her humerus.
26 Although the respondent asserted that she consulted Dr Cameron on 14 January 1999 (the day after the second accident), Dr Cameron's records reveal that she did not consult him until 19 January 1999.
27 In a report dated 19 August 1999, Dr Cameron said:
"I saw [the respondent] on 19.1.99 and she stated that she had been in a bus accident 6 days prior. She stated that the bus had hit a car that had stopped suddenly in front of it and she was thrown into the seat in front of her. She had immediate pain in her cervical spine and left arm as well as tenderness in her left elbow over the olecranon. There was also tenderness around the humeral head at the site of her previous humeral fracture ...
On examining her she had decreased range of movement in her cervical spine and she was tender over the right C6/7 joints in her neck. I diagnosed her as having a whiplash injury and recommended that she go for physio and for an x-ray of her left shoulder and elbow which showed no new fractures. ...
I believe that when she had her second bus accident it exacerbated the symptoms of her first bus accident.
..."
28 A cervical spine CT scan on 26 July 1999 showed a left posterolateral C6/7 disc protrusion which was present on a previous scan taken in 1997, but was now slightly more prominent. A cervical spine MRI scan on 30 November 1999 showed a small disc bulge at C5/6 and confirmed the left posterolateral C6/7 disc protrusion which extended into the foramina.
29 On 2 December 1999 the respondent was examined by Dr Rosenthal, a physician in rehabilitation medicine. She reported to him that she had increased neck and left arm pain as a result of the second accident. She also said that the short course of physiotherapy she had received after the second accident had made her feel worse. Dr Rosenthal's examination of the respondent revealed the following:
"... there is significant wasting around the left shoulder and she has a flexion deformity at the left elbow. The shoulder is tender with palpable bony deformity and there is minimal movement. There are no upper limb signs to suggest cervical radiculopathy. She has mild to moderate restriction of cervical movement."
In a report dated 2 December 1999, Dr Rosenthal expressed these opinions:
(a) The respondent's significant pain and restriction of function were attributable to long-standing cervical degeneration and the fracture of her left upper humerus.
(b) The respondent's current symptoms and disability did not relate to either the first or the second accident.
(c) The respondent required pain management, but this requirement did not arise from either the first or the second accident.
(d) The respondent's present incapacity for employment did not arise from either the first or the second accident.
(e) There was no permanent disability attributable to either the first or the second accident.
30 On 30 January 2000, the respondent was reviewed by Dr Anderson. The respondent informed him that the fracture of her humerus and the second accident had increased her pain. She complained of pain on the left side of her neck, radiating to her left shoulder and her mid-humerus. She also complained of pain in her left elbow. The respondent informed Dr Anderson that when the pain was severe it extended to her fingers, which felt numb. She said she was depressed, having sexual difficulties with her husband, and was unable to do anything. In a report dated 2 March 2000, Dr Anderson said:
"On examination there was significant weakness in her left arm but I felt that this was probably due to pain inhibition. She was tender over the spinous processes of C7 and the left side of her neck. The left trapezius was very tender to very light pressure. Range of movements of her neck were reduced on rotation to the right. Left gleno humeral movement was reduced due to pain.
She was offered a left shoulder block in the hope that this would reduce some of the pain but clearly not all of her pain.
...
I feel that a hard diagnosis is yet to be established. I feel that capacity to work can only be established by a work trial."
It appears that the shoulder block administered by Dr Anderson reduced the respondent's neck pain for a short period but did not relieve her shoulder pain. In a report dated 5 May 2000, Dr Anderson said:
"Unfortunately it is not always possible to dissect the etiology of pain in patients who have undergone multiple traumatic events.
I have performed a shoulder block on 29.3.2000. This did not result in significant reduction in the pain in the shoulder, although [the respondent] reported that her neck pain was reduced for a few weeks. ... on the balance of probabilities her pain is probably coming from her neck. She has been offered facet joint injections to the left side of her neck. If she decides to proceed with these injections this will indicate whether her neck pain is facetal or not. Presumably therefore her neck pain is the result of her motor vehicle accidents."
The respondent underwent facet joint injections which provided reasonable pain relief for a few days. The pain then returned.
The first accident: the learned Judge's findings of fact
31 The learned Judge found, at [55], that as a result of the first accident the respondent suffered "only soft tissue injuries to her left shoulder and elbow which would have taken approximately 8-9 months to resolve".
32 The learned Judge said, at [55], she did not accept that the respondent suffered a cervical injury in the first accident which caused the disc bulge at C6/7. Her Honour noted evidence to the effect that the respondent did not complain to Dr Cameron of any symptom in her neck for "months after the accident" and did not complain of any pain extending down her arm for "approximately six weeks".
"I accept Dr Baskaranathan's and Dr Black's evidence that if the first accident had caused the disc bulge the [respondent] would have suffered neck pain immediately or, at most, within a few days. As the contemporaneous records indicate, she made no complaint of such pain to Dr Cameron or Dr Baskaranathan. I am not prepared to find that she did, merely on the basis of the [respondent's] evidence given six years after the first accident, that she did."
34 The learned Judge then considered the reliability of the respondent as a witness. Her Honour said, at [56]:
"... I believe that [the respondent] has attempted to give an accurate account of the history of her symptoms and pain but that the passage of time together with the multiplicity of accidents that she has suffered means that she is not a reliable historian. This is objectively shown by her assertion in evidence that she worked virtually full-time in 1995 and 1996. As I have already stated her group certificates for the same period prove that she worked in a limited part-time capacity over this period. She also testified that she had neck symptoms the day after the first accident and yet the doctors' contemporaneous notes are inconsistent with that history. I am not prepared to rely upon her account where it differs from the contemporaneous notes of her treating doctors."
35 The learned Judge found that prior to the occurrence of the non-compensable fall in December 1997, when the respondent tripped and fell at home, she had recovered from the first accident and had no residual permanent disability. Her Honour arrived at that conclusion, at [57], as follows:
"I accept Dr Baskaranathan's opinion that even with medico/legal involvement the [respondent's] soft tissue injuries arising from the first accident would have resolved themselves, leaving no permanent incapacity, within 8-9 months. Thus, by the time the [respondent] had the non-compensable accident she had recovered from the first accident with no residual permanent disability."
36 The learned Judge also found that any pain the respondent was suffering in her neck or down her arm, immediately prior to the non-compensable fall, was pain or referred pain from unrelated cervical disc pathology. Her Honour said, at [58]:
" It appears likely that it was caused by naturally occurring degeneration of the spine. It is well known that such pathology can be symptomatic or may be asymptomatic. Further, neither the pathology itself or [sic] any pain caused by it has to be initiated by a traumatic incident. Thus, although as Dr Black said, the [respondent's] neck pathology may be consistent with having been caused by the first accident it by no means has to be."
37 The learned Judge made additional findings, at [59], in relation to the respondent's naturally occurring degeneration of the spine, as follows:
"The [respondent] complains that the [first appellant] did not plead that she had any such pre existing problem and neither is there any evidence that she had any neck symptoms prior to the first accident. Both these assertions are accurate. However, it is unnecessary for her cervical spine pathology to have been pre-existing at the time of the first accident. Indeed, the basis of my findings in regard to causation is that the [respondent's] cervical spine degeneration was not symptomatic until a considerable time after the first accident. The [respondent] has simply failed to prove her case in this respect."
38 The learned Judge accepted that, for eight to nine months after the first accident, the respondent was disabled by the injuries she received in that accident. Her Honour said, at [60]:
"She would not have been fit to resume her pre-accident employment as a domestic or cleaner. Even shop work would have been difficult because of the repetitive shoulder and elbow movements required for such work. The injuries would have also interfered with her ability to perform everyday household activities such as cleaning, washing and cooking. The pain from the first accident injuries would have caused [the respondent] to feel down and this would have rendered it more difficult for her to be motivated to take active steps to seek work and to find it. I also accept that her relationship with her husband would have been deleteriously affected by both her physical pain and her low mood."
The non-compensable fall: the learned Judge's findings of fact
39 The learned Judge found, at [61], that the non-compensable fall rendered the respondent "permanently incapacitated for her pre first accident employment". Her Honour added that the respondent was "also permanently incapacitated from other work duties which included repetitive activity". Her Honour concluded that, as a result of permanent disabilities attributable to the non-compensable fall and symptoms caused by the naturally occurring degeneration of the spine, the respondent's work capacity was "extremely limited".
The second accident: the learned Judge's findings of fact
40 The learned Judge found, at [62], that as a result of the second accident the respondent suffered "a soft tissue injury, which aggravated her pre-existing cervical pain". Her Honour also found, however, that the second accident "was simply not significant enough to cause permanent damage to the [respondent's] cervical spine". According to her Honour:
"This is demonstrated by the [respondent's] assertion that it did not cause any aggravation of the symptoms she was then experiencing as a consequence of her fractured humerus. Consequently I accept that the second accident aggravated the pain she suffers in her neck, shoulder and arm."
41 The learned Judge then found that it was probable the soft tissue injury suffered in the second accident had resolved entirely. Her Honour said, at [62]:
" ... given the length of time that has elapsed since the second accident it is probable that the soft tissue injury she received in the second accident has resolved entirely and the natural progression of her degenerative disease is now causing her pain and disability. I find that the contribution of the second accident to her pain and disability would have resolved by the end of 1999."
42 The learned Judge found, at [63], that there was insufficient evidence to establish that any of the respondent's injuries, loss or damage, alleged by her to be attributable to the first or second accident, were caused by the other matters pleaded by the appellants, other than the non-compensable fall.
43 The learned Judge noted, at [64], that the second appellant did not plead, in relation to the second accident, that the respondent had a pre-existing cervical spine condition. Her Honour said, however, that:
" ... the issue of the condition of the respondent's cervical spine and the cause of it was at all times alive between the parties as it was part of the [respondent's] pleaded case that the second accident aggravated her by then pre-existing cervical spine problem. Consequently, I do not accept that the [second appellant's] failure to specifically plead the existence of the pre-existing degenerative cervical spine problems is significant in this case."
44 The learned Judge noted, at [67], that s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) governed the amount of damages to be awarded for non-pecuniary loss. Her Honour then said, at [68]:
"The Act requires me to determine the amount of general damages as a proportion of the maximum amount that may be awarded. The maximum that may be awarded under the Act is currently set at a figure of $249,000. The maximum can only be awarded in the [sic] most extreme case. If the amount of non-pecuniary loss is assessed to be $12,500, that is five per cent of $249,000, or less the Act prohibits me from awarding damages for non-pecuniary loss."
45 The learned Judge held that the respondent was not entitled to an award of damages for non-pecuniary loss arising from the first accident. Her Honour said, at [71]:
"Compared to what may be regarded as the [sic] most extreme case, that is quadriplegia, I find that the [respondent's] first accident related injuries, pain and disabilities to be compensated for under an award of general damages are three per cent, thus less than 5 per cent, of the [sic] most extreme case. In coming to this finding I have taken into account all relevant matters, in particular my finding that her injuries from the first accident had resolved by the end of October 1997, the fact that her injuries were restricted to her neck, shoulder and arm and the limited effect these temporary injuries had on her enjoyment of life. Consequently, my assessment of damages for non-pecuniary loss related to the first accident is below $12,500 and I cannot make an award under this head of damages."
46 The learned Judge found, at [72], in relation to the respondent's claim for past economic loss caused by the first accident, that:
"As I have found that the [respondent] recovered from her first accident caused injuries by the end of October 1997, damages for past economic loss are only to be assessed to that time."
Her Honour also found, at [76], that the respondent's "unrelated cervical spine pathology was unlikely to affect her work capacity during 1997 as it did not become symptomatic until June 1997 and until her first accident related injuries resolved in October, it was those injuries which incapacitated her for work".
47 In the circumstances, the learned Judge determined that a global award of $4000 was appropriate for past economic loss caused by the first accident. Her Honour also awarded interest. The total award was $4720.
48 The learned Judge refused to make any award for future economic loss or future special damages in respect of the first accident in consequence of her Honour's finding that the respondent "completely recovered from the first accident by November 1997". Her Honour also refused to make an award for past and future gratuitous services as a result of the first accident in consequence of that finding.
49 The learned Judge did, however, make an award for past special damages in the sum of $5735.58.
50 The learned Judge refused to make an award of general damages in respect of the second accident. Her findings of fact and reasoning are set out, at [96], as follows:
"I accept that the second accident aggravated the [respondent's] pre-existing cervical spine symptoms. I accept that this increased her pain and disability in her neck, left shoulder and arm in 1999. However on the basis of her evidence and her complaints to her doctors, her pain and disability in these areas from her cervical spine degeneration was already quite severe at the time of the second accident. Further, she was suffering significant pain and restriction of movement in her left shoulder and arm from her non-compensable injury. She has some ongoing pain and significant permanent restriction of movement from the non-compensable injury. I have also taken into account the [respondent's] low mood. However I find that this was substantially as a consequence of her non-compensable injury following so closely upon the first accident, not as a result of the second accident. I do not accept that as a percentage of the [sic] most extreme case the second accident related injuries and disabilities warrant a finding of more than 5 per cent of the [sic] most extreme case. In my opinion it would be in the range of 3 per cent or $7470.00. This is less than $12,500 and consequently I am not permitted to award damages for non-pecuniary loss."
51 The learned Judge found that the injury sustained by the respondent in the second accident "probably contributed, in a minor way" to the respondent's inability to obtain employment in 1999. Her Honour said, however, at [97]:
"As I have already noted, in 1999 the [respondent] was also enduring significant pain from her non-compensable injury and for this reason alone she would not have attempted to find any form of full time employment in 1999. After 1999 to date I find that the aggravation caused by the second accident has not increased her loss of earning capacity at all. Her current incapacity is primarily the consequence of her non-compensable injury. As a consequence of the [respondent's] non-compensable accident she has a fifty per cent loss of function of her left arm below the shoulder. She also has disability related to her cervical neck pathology."
52 The learned Judge awarded a global sum of $2000 to reflect "the small contribution the second accident-related injuries made to the [respondent's] loss of earning capacity in 1999". Her Honour also awarded interest. The total award was $2240.
53 The learned Judge refused to make an award for future economic loss, future special damages or past or future gratuitous services arising from the injuries suffered in the second accident.
54 The learned Judge did, however, award past special damages in respect of the second accident in the sum of $1519.60.
The orders as to costs made by the learned Judge
55 On 28 January 2004 the learned Judge delivered her reasons for judgment. After the publication of the reasons there was an argument in relation to costs.
56 The parties informed the learned Judge that on 11 June 2002 the appellants had made a "joint offer" to the respondent to settle her claim. The joint offer was purportedly made under O 24A of the Rules of the Supreme Court 1971 (WA). The amount of the joint offer exceeded the total sum which the respondent recovered at trial against the appellants.
57 The argument, and the learned Judge's decision in relation to costs, is, to the extent relevant, reproduced below:
"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."
58 After hearing further argument, the learned Judge ordered that the respondent pay the first and second appellants' costs of an appearance on 21 January 2004 in relation to the proof of special damages. Otherwise, her Honour ordered that the first and second appellants pay the respondent's costs of the action to be taxed.
59 The appellants have appealed to this Court against the learned Judge's judgment in relation to costs. The so-called grounds, which are, to a significant extent, argumentative, are these:
"1. The Respondent (Plaintiff) having sustained injuries in two motor vehicle accidents respectively on 16 January 1987 [sic] and 13 January 1999 commenced proceedings by Writ of Summons dated 23 July 2001.
2. By a judgment dated 28 January 2004 the Respondent (Plaintiff) was awarded:
(a) $10,455.50 in respect of the first accident; and
(b) $3759.60 in respect of the second accident (of those sums the sum of $5284.78 had already been paid by way of special damages).
3. The First and Second Appellants (Defendants) by notice served pursuant to the provisions of Order 24A of the Rules of the Supreme Court on 11 June 2002 made a joint offer to settle the Respondent (Plaintiff)'s claim in [an amount exceeding the total of the damages awarded against them].
4. Notwithstanding the said offer, the learned Trial Judge awarded the Respondent (Plaintiff) the costs of the action to be taxed on the basis that the provisions of Order 24A of the Rules of the Supreme Court have no application to the joint offer.
5. In the premises, the learned Trial Judge:
(a) erred in fact and in law in finding that the provisions of Order 24A did not apply to the joint offer filed by the First and Second Appellants (Defendants);
(b) should have awarded the costs of the action subsequent to the serving of the offer to consent to judgment to the First and Second Appellants (Defendants).
6. In any event, the learned Trial Judge should have had regard to the general policy of Order 24A and exercised her discretion generally in relation to the costs of the action, or alternatively should have exercised her discretion generally as to costs.
7. The First and Second Appellants (Defendants) seek an order that the judgment of her Honour should be varied insofar as it relates to the costs of the action and that
(a) the First and Second Appellants (Defendants) be entitled to their costs of the action to be taxed subsequent to the serving of the Order 24A offer on 11 June 2002;
(b) alternatively, such other order as to costs as this Honourable Court might deem appropriate, having regard to the general policy of Order 24A of the Rules of the Supreme Court;
(c) alternatively, that this Honourable Court make such other order for costs in the general exercise of its discretion."
60 The respondent has cross-appealed against the learned Judge's award of damages. The grounds of the cross-appeal are, to a significant extent, repetitive. The grounds, without particulars, are as follows:
"1. The learned trial Judge failed to make any or adequate findings as to when the Respondent first suffered neck pain, contemporaneity of onset of symptoms being relevant if not critical to the differential diagnosis of the Respondent's injury (whether brachiocephalic, activation of asymptomatic degeneration, discal protrusion or referred pain or injury to the facet joint(s) in the cervical spine).
2.1 The learned trial Judge misconstrued the evidence of Dr Baskaranathan, or failed to properly evaluate his opinion evidence ... which was that the Respondent's condition:
(a) was very likely due to damage to the deeper soft tissue structures which included nerves of the brachial plexus resulting in brachiocephalic pain syndrome;
(b) included an accident-caused activation of arthritis in the neck, or the symptomisation of asymptomatic degeneration in the neck, or the acceleration of pre-existing degeneration in the neck.
2.2 Alternatively, her Honour's conclusion that the Respondent would have made a complete recovery from the first accident was against the evidence or the weight of the evidence.
...
3. The learned trial Judge erred in failing to evaluate the conflicting medical evidence relevant to diagnosis and causation, and/or failed to take proper account of other opinion evidence favourable to the Respondent and/or failed to give adequate reasons for (impliedly) rejecting such evidence.
...
4.1 The learned trial Judge's finding that the Respondent completely recovered within 8 to 9 months after the first accident was against the weight of the evidence.
...
4.2 Alternatively, her Honour failed to provide adequate reasons why Dr Baskaranathan's opinion as to when the Respondent ought theoretically to have fully recovered (based on his diagnosis during the limited time he was her doctor) necessarily invalidated the Respondent's evidence as to her actual symptoms/injuries (whether these were or were not documented by other medical practitioners).
5. The learned trial Judge's bare finding (at Reasons [58]) that the cause of the Respondent's neck pain was from 'unrelated cervical disc pathology':
(a) erroneously failed to adequately resolve the conflicting medical opinions on this issue ...;
(b) was against the evidence or weight of the evidence ... ;
...
(d) alternatively, amounted to a failure to provide adequate reasons for decision.
6. The learned trial Judge's conclusion that the natural progression of the Respondent's degenerative disease is now causing her pain, constituted an error of fact and/or law:
(a) when the conclusion was made in the absence of probative evidence;
(b) in the absence of any plea or adequate disentanglement by the Appellants of the causes and extent of the degenerative condition in her neck (which may have been further activated by the first accident);
(c) alternatively amounted to a failure to provide adequate reasons for decision.
7.1 The learned trial Judge's conclusions that the Respondent's injuries, pain and disabilities for the first accident and/or the second accident (Reasons [71], [96]) amounted to a mere 3% of the most extreme case, were so below the permissible range of discretionary judgment as to warrant intervention by the Honourable Full Court.
7.2 The learned trial Judge erred (at Reasons [96]) in effectively discounting the award for general damages for the second accident due to pre-exiting [sic] degeneration when this was neither pleaded or [sic] proven to the requisite degree by the Second Respondent.
8.1 The learned trial Judge's award for past economic loss for the first accident (Reasons [77]) and for the second accident (Reasons [97]) were so below the permissible range of discretionary judgment as to warrant intervention by the Honourable Full Court.
8.2 The learned trial Judge erred in failing to award any damages for past and future gratuitous services, or for future special damages for the both accidents (Reasons [81], [99])."
61 It is convenient, first, to consider the cross-appeal, and then the appeal.
62 The respondent said in evidence that on 17 January 1997, being the day after the first accident, she consulted Dr Cameron. According to the respondent (at AB 69):
" ... he checked me out and me [sic] left shoulder was very swollen and bruised and as he was checking out all my left side I had such a terrible pain coming in my neck."
The respondent added that the pain was affecting "the left section of me [sic] neck going down me [sic] shoulder".
63 The learned Judge, at [7] - [14], summarised Dr Cameron's evidence in relation to the symptoms of which the respondent complained as a result of the first accident. Her Honour made, relevantly, these findings:
"No complaints of general arm or neck pain were made on any of the five or so occasions [Dr Cameron] saw [the respondent] between [5 February 1997 and 11 April 1997]. ... her complaints, according to his notes, were of pain in her left shoulder and elbow."
"On 10 June 1997 Dr Cameron made the first reference in his notes to neck pain."
"There is no reference to any complaint by the [respondent] of neck pain in Dr Cameron's clinical notes, his subsequent referral to Dr Baskaranathan, his report to the State Government Insurance Commission of 14 March 1997, or his medical certificate to the Department of Social Security on 4 September 1997. Other than the note of 10 June, his first written reference to neck pain is in a preliminary medical report to the Commonwealth Rehabilitation Service on 26 September 1997. ..."
Dr Cameron agreed, in cross-examination, that he had not documented complaints of neck pain prior to 10 June 1997, and said that, if a complaint had been made at an earlier date, he thought he would have documented it. Dr Cameron did not suggest that he had an independent recollection of the respondent having complained of neck pain prior to 10 June 1997.
64 Dr Baskaranathan said in evidence that the respondent did not complain of neck pain when he first examined her in late February 1997. The following exchange occurred between counsel for the appellants and Dr Baskaranathan in cross-examination (at AB 135):
"There was no mention of any neck pain, was there - - -?---No mention, no.
- - - in the 3 or 4 months following the accident?---Yes, that's right. I mean until that time she saw me, she didn't complain of neck pain to anybody.
Throughout the time she saw you?---Yes.
If she had injured her neck in the accident you would have expected some complaint of neck pain within that period, wouldn't you?---Yes."
This issue was explored further with Dr Baskaranathan later in cross-examination (at AB 138 - 139):
"You would have expected complaints of neck pain had there been any relationship to the accident back in January. You would have expected some complaints of pain in the neck?---If it's serious injury to the cervical spine, she would have had more pain straightaway.
It's more than that, isn't is [sic]. She's now telling us 6 years after the event she has got significant neck pain. If she had problems in her neck sufficient to cause her symptoms 6 years later, those symptoms would have come on close to the episode of trauma one would expect?---If she didn't have any further problems, then I would have expected complete recovery.
She's had further problems subsequently. You have said, I think, that you would have expected her to have complained of neck pain within 3 months at the least had the problems been related to the neck?---Yes."
65 Dr Black first examined the respondent on 5 June 1997. He gave evidence that the respondent complained of neck pain on that occasion. His recollection was that she told him her neck pain developed on the day of the accident or shortly afterwards. Dr Black was of the opinion that if the respondent had "problems in her neck as a result of" the first accident, he would have expected symptoms in her neck immediately or within "a day or so". The following exchange occurred between counsel for the respondent and Dr Black in re-examination (at AB 113 - 114):
" ... ---So you're asking me in fact if her symptoms came on 2 months after the accident, do I accept that it's still caused by the accident?
Yes?---I would be inclined to think her symptoms should start before that. I can't give you written documentation of that but my impression would be that the symptoms should start earlier than 2 months from the accident.
...
... ---If she had a significant injury, I would believe that her symptoms would arise shortly after the accident. I would not - 2 months, my impression would be too long. If she was taking lots of analgesics in the meantime, sure, the pain may be relieved but she would have still had, I believe, some sort of symptoms earlier on to require to take the narcotics in the first place. ..."
66 The learned Judge made findings in relation to the respondent's complaint of neck pain, relevantly, as follows:
" ... my view is that when, some time after the first accident, the [respondent] started to complain of neck pain Dr Cameron and the [respondent] put it together with the shoulder pain and thereafter have erroneously regarded it as linked to the first accident."
" ... The evidence is to the effect that the [respondent] did not complain to her general practitioner of any symptom in her neck for months after the accident and did not complain of any pain going down her arm for approximately six weeks. I accept Dr Baskaranathan's and Dr Black's evidence that if the first accident had caused the disc bulge the [respondent] would have suffered neck pain immediately or, at most, within a few days. As the contemporaneous records indicate, she made no complaint of such pain to Dr Cameron or Dr Baskaranathan. I am not prepared to find that she did, merely on the basis of the [respondent's] evidence given six years after the first accident, that she did."
"In respect of the [respondent's] evidence, I believe that she has attempted to give an accurate account of the history of her symptoms and pain, but that the passage of time together with the multiplicity of accidents that she has suffered, means that she is not a reliable historian. ... I am not prepared to rely upon her account where it differs from the contemporaneous notes of her treating doctors."
"I find that any pain the [respondent] was [suffering 8 - 9 months after the first accident] in her neck or down her arm was pain or referred pain from unrelated cervical disc pathology. It appears likely that it was caused by naturally occurring degeneration of the spine. ..."
" ... the [respondent's] cervical spine degeneration was not symptomatic until a considerable time after the first accident. The [respondent] has simply failed to prove her case in this respect."
In my opinion, those findings were reasonably open. Her Honour did not accept the respondent's evidence that she first suffered neck pain on or by 17 January 1997, being the day after the first accident. Her Honour found that the respondent first complained of neck pain to a medical practitioner in June 1997. By implication from her Honour's rejection of the respondent's evidence and from the findings and evidence to which I have referred in considering ground 1, her Honour was satisfied that the respondent first suffered neck pain not earlier than June 1997.
68 I have referred, in the context of ground 1 of the cross-appeal, to some of Dr Baskaranathan's evidence in relation to the onset of the respondent's neck pain.
69 Counsel for the respondent put to Dr Baskaranathan, in evidence-in-chief, the respondent's evidence as to the mechanics of the first accident and the symptoms she allegedly experienced immediately afterwards, and sought his opinion as to the cause of those symptoms, on the assumption that the respondent's evidence was accepted. The relevant questions and answers (at AB 120 - 122) were these:
" ... She said when her shoulder hit the ticket validating machine her left arm either wrenched or went backwards while she was still carrying a bag of groceries, and she said that the left shoulder was very swollen and bruised and then she had terrible pain in the neck going down to her shoulder. The reason I mention that to you is because you said you can't recall so far back the precise mechanics of the injury?---Mm.
In the light of that evidence if her Honour is to accept that evidence, would you like to elaborate on the cause, if any, of the radiation of pins and needles down her arm into the two little fingers?---The mechanics of the injury which you have described just now gives me the impression that this lady has extended the arm carrying a weight, so there would have been a drag or pull on the brachial plexus, so that's within the realms of possibility or probability that we can consider that too and that would explain why she had the whole arm - the point which is against such an issue is normally a neurogenic or neurotic [sic] pain has a burning characteristic and I don't think this lady mentioned a burning pain at that time, it was more a generalised pain. So there again I say anything is possible in medicine, you now [sic]. You can never say "This is what it is. This is the diagnosis." This is very hard.
So if we can go back to page 63 then one possible explanation is a what to the brachial plexus? I forgot the word you used. What is one possible explanation? Did you say stretching?---Yes. Stretching. If she had stretched the brachial plexus which is, you know, the ramified area you see under the collarbone in that picture where you see the interrupted lines there on the picture?
...
Yes?---So that is a possibility that she could have stretched it and that would - the pull must have been fairly substantial because here [sic] the collarbone articulates into the scapula was very tender."
70 Dr Baskaranathan said, in evidence-in chief (at AB 128), that when he was treating the respondent he "[wondered] whether she had some problem in the neck but she didn't give me time to sort of get onto the cervical spine proper". This issue was also referred to in cross-examination (at AB 139):
" ... You say the change in the pain distribution pattern also raised the possibility of a secondary myofascial pain or brachialgia and that's what you were commencing to treat when she went elsewhere?---That's right."
71 Dr Baskaranathan's evidence, in re-examination (at AB 141 - 143), in relation to brachiocephalic pain syndrome, was as follows:
" ... Of these three different pathologies, nerve root involvement, stretching of the brachial plexus, and brachiocephalic pain syndrome, is that what it's called?---Yes.
Did you form a view as to which was the most likely to explain - - -?---It's very hard to answer that question. I don't think the available evidence is pointing towards any particular thing. The only conclusion I can arrive at is that this lady has developed a chronic pain problem in the arm.
...
... Now, you also told my learned friend that you didn't think it was a neurological problem and I understand that to mean the bulging disc impinging on the existing nerve roots in the neck. Is that right?---Yes.
You didn't think it was that because there was no burning pain?---Yes.
...
... Are you still of the view that it's very likely that the soft structures were damaged given the mechanics of the injury, including the deeper soft structure, in the light of everything that you have said today?---Yes, I find it difficult to recall the alleged mechanism of the injury but from the way you presented it to me, that is a possibility. Carrying a weight on the arm and with the impact on the shoulder and the shoulder getting pulled with that, could have done but I am not very certain about it.
Is there any way to test that? Any diagnostic test?---No, not after this length of time."
72 Dr Baskaranathan did not express the opinion that the respondent's condition "included an accident-caused activation of arthritis in the neck, or the symptomisation of asymptomatic degeneration in the neck, or the acceleration of pre-existing degeneration in the neck", as asserted in ground 2.1(b).
73 Counsel for the respondent asked Dr Baskaranathan, in re-examination, to express an opinion as to when the respondent's shoulder and arm problems would have abated, if she had not suffered any further injuries to her shoulder. His answer (at AB 146) was this:
"If there were no complications and if that was purely soft tissue injuries on her, then I would have expected most of her symptoms to have fully resolved by 8 or 9 months in an accident-related scenario, but in a non-accident related scenario, when there is no workers compensation or any other issues, they tend to get better much sooner."
74 The learned Judge accepted Dr Baskaranathan's evidence. Her Honour said, at [23], that he was "an expert upon whom I am more than willing to rely". She found that he gave his evidence in "a straightforward and convincing manner". Her Honour also said, at [55], that she accepted Dr Baskaranathan's opinion that, as a consequence of the first accident, the respondent suffered only soft tissue injuries to her left shoulder and elbow which would have taken approximately eight to nine months to resolve. Also see her Honour's observations at [57]. Counsel for the respondent, in examination-in-chief and re-examination, sought Dr Baskaranathan's opinion on various issues. The opinions which Dr Baskaranathan expressed, in response to counsel's questioning, and on which the respondent relies in this appeal, assumed the correctness of the respondent's evidence, and were advanced as possible explanations for her complaints. It is true that her Honour did not set out or analyse Dr Baskaranathan's evidence in any detail. I am not persuaded, however, that her Honour's findings, to the extent they are based on his evidence, involved a misconstruction of or a failure properly to evaluate that evidence.
75 Dr Black gave evidence (at AB 105) that the respondent informed him her neck pain developed on the day of the accident or shortly afterwards. The learned Judge did not accept the respondent's evidence to that effect. Dr Black said, in cross-examination, (at AB 110):
"I was unclear what was going on initially, and that's why I thought the neck was the main source of the pain. That's why I did the CT scan on the neck and when the disc came back, I presumed that that was the cause of the problem."
Dr Black said, in re-examination (at AB 113 - 114), in effect, that his diagnosis was based on symptoms in her neck having commenced earlier than two months after the first accident.
76 Dr Anderson first examined the respondent in July 1997. He did not see her again for about 2 1/2 years. In a report dated 15 July 1997, he said:
"There was not a lot to find on examination. There was some tenderness over the left trapezius and the right side of her neck."
Dr Anderson is a specialist anaesthetist and a specialist in pain management. He agreed, in cross-examination, that in essence he treats a patient's symptoms when all else fails. He added (at AB 156):
" ... occasionally we can actually treat the causes of pain, but the vast majority of the time you are treating the symptoms."
77 In my opinion, it was reasonably open to the learned Judge to conclude, as she did at [57], that when the respondent suffered the non-compensable fall on 16 December 1997 she had recovered from the first accident with no residual permanent disability. This conclusion was supported by her Honour's rejection of part of the respondent's evidence and by the evidence of Dr Baskaranathan and Dr Black. See [64] - [66] and [73] - [75] above. Her Honour's conclusion was not against the evidence or the weight of the evidence.
79 In my opinion, the learned Judge adequately evaluated the medical evidence including that evidence which, if accepted, would or may have been favourable to the respondent. Her Honour gave adequate reasons.
80 The medical experts, in expressing their opinions, necessarily relied on the history which the respondent gave them. The learned Judge did not accept the respondent's evidence in relation to the date on or about which she commenced to suffer neck pain. It was reasonably open to her Honour to reject that part of the respondent's evidence. The finding that the respondent was not a reliable historian justifiably affected her Honour's approach to the medical evidence, and her conclusions as to the nature and extent of the respondent's injuries and her consequential symptoms arising from the first accident.
81 The medical evidence did not, in relevant respects, conflict to any material extent. See [63] - [65] and [69] - [76] above.
83 In my opinion, the learned Judge's finding that the respondent completely recovered from the injuries caused by the first accident within eight to nine months was not against the weight of the evidence. It was a finding reasonably open to her Honour, given her findings in relation to the evidence of the respondent, Dr Baskaranathan and Dr Black. See [64] - [66] and [73] - [75] above.
84 In my opinion, the learned Judge provided adequate reasons for rejecting the respondent's evidence as to the nature and extent of her injuries and consequential symptoms, whether or not those injuries and symptoms were documented by any or all of the medical experts who gave evidence. See [66] above.
86 The learned Judge's findings, at [58], were as follows:
"I find that any pain the [respondent] was [suffering 8-9 months after the first accident] in her neck or down her arm was pain or referred pain from unrelated cervical disc pathology. It appears likely that it was caused by naturally occurring degeneration of the spine. It is well-known that such pathology can be symptomatic or may be asymptomatic. Further, neither the pathology itself or [sic] any pain caused by it has to be initiated by any traumatic incident. Thus, although as Dr Black said, the [respondent's] neck pathology may be consistent with having been caused by the first accident, it by no means has to be."
In my opinion, those findings were reasonably open. They were based on earlier findings, which were properly made, in relation to the nature and extent of the respondent's injuries and consequential symptoms (including the timing of the onset of those symptoms) and the evidence of the medical experts. Her Honour adequately dealt with the medical evidence, and her findings were not against the evidence or the weight of the evidence. She gave adequate reasons. See [63] - [66] and [69] - [77] above.
87 The complaints made in ground 5 of the cross-appeal are without foundation.
88 The learned Judge made findings, at [62], in relation to the natural progression of the respondent's degenerative disease, as follows:
"I find that in the second accident the [respondent] suffered a soft tissue injury, which aggravated her pre-existing cervical pain. I find that the second accident was simply not significant enough to cause permanent damage to the [respondent's] cervical spine. This is demonstrated by the [respondent's] assertion that it did not cause any aggravation of the symptoms she was then experiencing as a consequence of her fractured humerus. Consequently I accept that the second accident aggravated the pain she suffers in her neck, shoulder and arm. However given the length of time that has elapsed since the second accident it is probable that the soft tissue injury she received in the second accident has resolved entirely and the natural progression of her degenerative disease is now causing her pain and disability. I find that the contribution of the second accident to her pain and disability would have resolved by the end of 1999."
In my opinion, those findings of fact were reasonably open. See [86] above.
89 The complaints made in ground 6 of the cross-appeal are without foundation.
90 The learned Judge said, at [71], in relation to the first accident:
"Compared to what may be regarded as the [sic] most extreme case, that is quadriplegia, I find the [respondent's] first accident-related injuries, pain and disability to be compensated for under an award of general damages are three per cent, thus less than 5 per cent, of the [sic] most extreme case. ..."
91 Similarly, the learned Judge said, at [96], in relation to the second accident:
" ... I do not accept that as a percentage of the [sic] most extreme case the second accident related injuries and disabilities warrant a finding of more than 5 per cent of the [sic] most extreme case. In my opinion it would be in the range of 3 per cent ..."
92 Section 3C(2) of the Motor Vehicle (Third Party Insurance) Act provides:
"The amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded."
"The maximum amount of damages that may be awarded for non-pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case." [My emphasis].
Section 3C(4) provides that if the amount of non-pecuniary loss is assessed to be "Amount B or less", no damages are to be awarded for non-pecuniary loss.
93 The expression "non-pecuniary loss" is defined in s 3C(1) to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life, and bodily or mental harm. At the relevant time, "Amount A" was $249,000 and "Amount B" was $12,500.
94 The learned Judge did not refer, in her reasons, to any authorities in relation to the proper construction of the expression "a most extreme case" in s 3C(3). It appears that counsel did not cite any such authorities.
95 In Southgate v Waterford (1990) 21 NSWLR 427, the Court of Appeal of New South Wales considered the provisions of s 79 of the Motor Accidents Act 1988 (NSW) which are in similar terms to the provisions of s 3C of the Western Australian Act. Gleeson CJ, Kirby P and Meagher JA said, at 440 - 441:
"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'."
Those observations were cited with approval by the Full Court of the Supreme Court of Western Australia in Thomas v Bass [2006] WASCA 59 at [30] - [31].
96 The expression "a most extreme case" in s 3C(3) refers to a class of cases rather than to a case "at the apex of the gradation of injuries": Marsland v Andjelic (1993) 31 NSWLR 162 at 183. Also see Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 at [53]. A judge's assessment of whether a case is "a most extreme case" within s 3C involves "questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment": Dell v Dalton (1991) 23 NSWLR 528 at 533 - 534. An appeal court should not interfere with a trial judge's finding unless satisfied that he or she applied a wrong principle of law, misapprehended the facts or made a wholly erroneous characterisation of the plaintiff's case.
97 In my opinion, the learned Judge was in error in comparing the respondent's case, in relation to each of the first and second accidents, to "the most extreme case, that is quadriplegia" [my emphasis]. As Handley JA noted in Dell, at 533, the use of the indefinite article provides for the creation of a class of "most extreme" cases. His Honour said:
"When used in the expression 'the most extreme case' the definite article provides a context which denies the possibility of a worst case. ... The use of the indefinite article in the subsection however, provides for the creation of a class of 'most extreme' cases which necessarily means that the cases may be different, and some may be worse than others."
Handley JA's observations were approved by Steytler P in Murray River North v Midgley [2006] WASCA 104 at [9].
98 In my opinion, the learned Judge having made an error of law in her construction of the expression "a most extreme case" in s 3C(3), this Court is entitled to and should assess the damages for non-pecuniary loss in respect of each of the first and second accidents.
99 The respondent gave evidence as to the pain and suffering, loss of amenities of life and loss of enjoyment of life which she suffered as a result of the injuries and consequential symptoms caused by the first accident. She said she was very depressed and the antidepressant medication prescribed by Dr Cameron made her feel worse. She also said (at AB 74):
"Me [sic] and me [sic] husband almost split up because I didn't want to go nowhere, didn't want to do nothing. I had no sexual relations at all with him because if I did it just caused me even more pain. It was just getting too much you know. My husband was doing the housework before he went to work and then he was coming home and he was cooking for me; you know, that sort of thing. He'd had enough. I'd had enough, you know. It was just terrible."
The respondent had injections into her shoulder joint, and she underwent x-rays, ultrasound and CT-scans.
100 It is necessary, of course, in determining the severity of the respondent's non-pecuniary loss to bear in mind the learned Judge's findings of fact in relation to the respondent's neck pain and her recovery from the first accident within eight to nine months without any residual permanent disability. In my opinion, the severity of the respondent's non-pecuniary loss in respect of the first accident should be determined to be 5 per cent of a most extreme case, and damages should therefore be assessed to be $12,500.
101 As I have mentioned, at the relevant time s 3C(4) provided that if the amount of non-pecuniary loss is assessed to be Amount B (that is, $12,500) or less, no damages are to be awarded for non-pecuniary loss. In the circumstances, therefore, no damages may be awarded for non-pecuniary loss in respect of the first accident.
102 The learned Judge's findings of fact, relevant to damages for non-pecuniary loss in relation to the second accident, are set out, at [95] - [96]:
"Mrs Barwick testified that the second accident instantly made her neck and elbow problems worse. Surprisingly, she says that it did not aggravate her fractured humerus. She said that she was unable to sleep that night and that radiation into her hand and fingers was worse. She said that currently she avoided travel because it aggravated her pain. However she said that the pain never entirely disappeared and the radiation into her arm continued. She said she could not move her neck properly and she demonstrated that she had what appeared to be approximately half the normal range of movement to the left and a bit more to the right. She could not move her head upwards but could put her chin on her chest. Apart from painkillers, which she takes regularly, and antidepressants she is not currently receiving any treatment for her neck.
I accept that the second accident aggravated the [respondent's] pre-existing cervical spine symptoms. I accept that this increased her pain and disability in her neck, left shoulder and arm in 1999. However on the basis of her evidence and her complaints to her doctors, her pain and disability in these areas from her cervical spine degeneration was already quite severe at the time of the second accident. Further, she was suffering significant pain and restriction of movement in her left shoulder and arm from her non-compensable injury. She has some ongoing pain and significant permanent restriction of movement from the non-compensable injury. I have also taken into account the [respondent's] low mood. However I find that this was substantially as a consequence of her non-compensable injury following so closely upon the first accident, not as a result of the second accident."
103 In my opinion, based on the learned Judge's findings of fact, the severity of the respondent's non-pecuniary loss in respect of the second accident should be determined to be 5 per cent of a most extreme case, and damages should therefore be assessed to be $12,500. The effect of this determination is that no damages may be awarded for non-pecuniary loss in respect of the second accident.
104 The learned Judge held, at [64], that the condition of the respondent's cervical spine and the cause of her symptoms were, at all times, in issue between the parties, as the proceedings were litigated. The respondent's pleaded case included an allegation that the second accident aggravated her by then pre-existing cervical spine problems.
105 In a report dated 2 December 1999, which was tendered in evidence and relied on by the appellants, Dr Rosenthal said:
"1. The diagnosis is long standing cervical degeneration and a fracture of the left upper humerus causing significant pain and restriction of function.
...
3. I do not consider her present symptoms and attendant disability relate to either bus incidents occurring in January 1997 and January 1999.
4. This lady requires pain management but the need for this is not in my view related to either bus incident.
..."
106 In my opinion, the matters complained of in ground 7.2 of the cross-appeal are without merit.
107 In my opinion, the learned Judge's findings of fact in relation to her award of damages for past economic loss, past and future gratuitous services and future special damages in respect of the first and second accidents were reasonably open. I am not persuaded that her Honour's discretionary judgment in relation to the amount awarded for past economic loss was below the permissible range. Also, I am not persuaded that her Honour erred in failing to make any award for past or future gratuitous services or for future special damages.
108 On 11 June 2002, the appellants served on the respondent an offer, purportedly under O 24A of the Rules of the Supreme Court. By the offer, the appellants jointly offered a single amount in settlement of the respondent's causes of action against them. The single amount specified in the offer exceeded the total amount of the damages which the learned Judge awarded against the appellants.
"Where 2 or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a debt or damages and rights of contribution or indemnity appear to exist between the defendants, Rule 8 shall not apply to an offer unless -
(a) in the case of an offer made by the plaintiff - the offer is made to all defendants, and is an offer to compromise the claim against all of them;
(b) in the case of an offer made to the plaintiff -
(i) the offer is to compromise the claim against all defendants; and
(ii) where the offer is made by 2 or more defendants - by the terms of the offer the defendants who made the offer are jointly or jointly and severally liable to the plaintiff for the whole amount of the offer."
110 In the present case, O 24A r 9 did not apply. Although there were two defendants (that is, the appellants) in the proceedings commenced by the respondent, and the respondent's claim was for damages, it was not alleged that the appellants were jointly or jointly and severally liable to the respondent in respect of those damages. Plainly, no such allegation could properly have been made. Each appellant was severally liable to the respondent for the loss and damage caused by his negligence. The first appellant's negligence caused the loss and damage suffered by the respondent in respect of the first but not the second accident. The second appellant's negligence caused the loss and damage suffered by the respondent in respect of the second but not the first accident. The appellants were not joint tortfeasors. The learned Judge was correct in deciding, in effect, that O 24A (in particular, O 24A r 9) did not permit the appellants to make a joint offer to the respondent in a single amount.
111 Counsel for the appellants submitted to this Court that, even if O 24A was inapplicable, the learned Judge should have taken the appellants' offer into account in the exercise of her general discretionary power to award costs (see s 37(1) of the Supreme Court Act 1935 (WA) and O 66 r 1 of the Rules of the Supreme Court) and that her Honour should have ordered the respondent to pay the appellants' costs of the action from 11 June 2002 (being the date of service of the offer).
112 In Messiter v Hutchinson (1987) 10 NSWLR 525, Rogers J held that a letter of offer, in which a party has offered as much as or more than that to which the opposing party ultimately establishes an entitlement at trial, may be taken into account by the Court in determining the exercise of its discretion as to costs, notwithstanding that the party making the offer had failed to make the offer in accordance with formal procedures contained in the Rules of Court for the making of offers of compromise. His Honour said, at 528:
"The public policy on which the judgments in Cutts rest argues against a hard and fast exclusion of the availability of this method for disposition of disputes by compromise. The purpose of a Calderbank letter is, after all, essentially the promotion of settlement of disputes. Although, historically, the Calderbank letter evolved in circumstances where the procedure of payment in, for one reason or another, was unavailable, there is to my mind no reason in principle why it must necessarily and invariably be so restricted. The discouragement to practitioners to the use of the Calderbank letter in instances where the procedure of payment in is available is that the consequences of payment in, prescribed by the rules will not automatically be available. As Ormrod LJ pointed out in McDonnell v McDonnell [1977] 1 WLR 34 at 38; [1977] 1 All ER 766 at 770:
'... It would be wrong, in my judgment, to equate an offer of compromise in proceedings such as these precisely to a payment into court. I see no advantage in the court surrendering its discretion in these matters as it has to all intents and purposes done where a payment into court has been made. A Calderbank offer should influence but not govern the exercise of discretion.'
In my view, at least as a matter of principle, a Calderbank letter should be permitted to be taken into account by the Court in determining whether a special order displacing that which generally obtains of costs following the event should be made."
Those observations were referred to with approval in Dobb v Hacket (1993) 10 WAR 532 at 539 - 540.
113 In my opinion, the appellants' offer was a matter to be taken into account in any exercise by the learned Judge of her general discretionary power to award costs. It appears, however, that the issue of costs was argued before her Honour, and determined by her, solely on the basis of whether the appellants' offer was an offer of compromise within O 24A and, if so, whether the respondent should pay the appellants' costs from the date of making the offer in accordance with O 24A r 10(5). That provision is in these terms:
"Where an offer is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains judgment on the claim to which the offer relates not more favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim up to and including the day the offer was made, taxed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for his costs in respect of the claim thereafter, taxed on a party and party basis.
Where O 24A r 10(5) applies, the orders as to costs specified in that provision apply unless the Court otherwise orders.
114 The appellants' contention before the learned Judge was, in essence, that even though the respondent had obtained a judgment against each of the appellants, the total of the judgments was less than the amount of the appellants' offer, O 24A applied to the offer, and the respondent should therefore pay the appellants' costs pursuant to O 24A.
115 The principles of law which regulate the circumstances in which an appellate court may review the exercise of a judicial discretion are not in doubt, and apply to an appeal from a decision of a trial Judge in relation to costs. Generally, see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505. In the present case, the appellants did not request the learned Judge to exercise her general discretionary power to award costs. The appellants should not be put, on appeal, in a better position by the matter not having been raised before her Honour than if the matter had been raised and disposed of unfavourably to them. Compare R v Gallagher [1998] 2 VR 671 per Brooking JA at 679 - 680, per Callaway JA at 686 and per Ashley AJA at 699. In my opinion, the appellants not having sought to invoke her Honour's general discretionary power to award costs, it cannot be contended on appeal that she erred in law in failing to exercise that discretion.
116 In any event, I am not persuaded that, in the circumstances, the learned Judge should have exercised her general discretionary power as to costs to order the respondent to pay the appellants' costs as from the date of service of the offer. The appellants were not joint tortfeasors. The making of a joint offer of compromise of all causes of action against the appellants for a single amount deprived the respondent of the opportunity of settling her claim against one of the appellants and proceeding against the other. In those circumstances, the respondent did not act unreasonably in refusing to accept the offer.
118 I would dismiss both the appeal and the cross-appeal.
Den Hoedt & Anor
Barwick [2006] WASCA 196
(1992) 27 NSWLR 721
(1993) 31 NSWLR 162
(1975) 10 SASR 549
(1991) 23 NSWLR 528
(1993) 10 WAR 532
(1936) 55 CLR 499
(1987) 10 NSWLR 525
(1990) 21 NSWLR 427