Tort - Personal injuries - Trial on assessment of damages - Whether findings open - Whether O 24A offer capable of acceptance - Turns on own facts

Duncan & Weller Pty Ltd v Mendelson [1989] VicRp 36; [1989] VR 386

Duvall v Godfrey Virtue & Co (A Firm) [2001] WASCA 163

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Pollock v Wellington (1996) 15 WAR 1

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549

Devries v National Railways Commission (1993) 177 CLR 472

Dyjak v Kelly, unreported; SCt of WA; Library No 940269; 25 May 1994

Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296

Ivkovic v Rinaldi (1980) 25 SASR 516

Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349

Powell v Streatham Manor Nursing Home [1935] AC 243

SS Hontestroom (Owners) v SS Sagaporack [1927] AC 37

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Whitehouse v Jordan [1980] UKHL 12; [1981] 1 WLR 246

1 MALCOLM CJ: In my opinion, this appeal should be dismissed for the reasons to be published by McLure J with which I am in entire agreement.

2 STEYTLER J: I have had the advantage of reading the judgment of McLure J. I agree with it and with her conclusion that the appeal should be dismissed.

3 MCLURE J: This is an appeal against an assessment of damages by Deane DCJ on the ground that the award is inadequate. The appellant sustained injury when she was involved in a motor vehicle accident in Queensland on the evening of 20 March 1999. The vehicle in which the appellant was travelling, driven by her husband the respondent, struck a group of cattle that had strayed onto the road ("accident"). The learned trial Judge held that the respondent was negligent and assessed the damages at $5,800 comprising $5,000 for general damages and $800 for past gratuitous services.

4 The appellant claimed that as a result of the accident she suffered a cervical soft tissue injury or whiplash, neck injuries, thoracolumbar soft tissue injuries, psychological injuries including post-traumatic stress disorder, pain disorder, anxiety, headaches and depression. The appellant had a pre-existing psychiatric and psychological condition. The trial Judge found that the plaintiff did suffer a whiplash injury and also a thoracolumbar soft tissue injury with associated pain and some minor restriction of physical movement. She also accepted that the accident caused some emotional distress to the appellant but that it was of short duration. The trial Judge continued:

"In my view it has not been established on the evidence and therefore I do not find, that the [appellant] suffers any psychological or psychiatric symptoms such as post-traumatic stress disorder, somato form disorder, conversion disorder or anxiety disorder or headaches or depression as a sequelae of her involvement in the accident. If the [appellant] does suffer a pain disorder, headaches and/or depression, they do not relate to the motor vehicle accident but rather are separate and distinct and relate to her pre-existing psychological and psychiatric problems which I find were in no way exacerbated by her involvement in the motor vehicle accident."

5 She concluded that the appellant's involvement in the motor vehicle accident became a convenient and partially contrived focus for the presentation of her neurotic symptoms and claimed dependency needs.

6 Having regard to her findings as to the nature and extent of the accident-caused injuries, the trial Judge concluded that medical and physiotherapy treatment up to 23 May 1999 was reasonable but thereafter the appellant was in a position where she had recovered from the ill-effects of her injuries to a point where she no longer required ongoing medical treatment relevant to them and as a result did not require any further gratuitous or paid assistance.

7 In the late 1980's the appellant was diagnosed by her treating psychiatrist, Dr Toussant, with bipolar affective disorder. In the early nineties her drug regime was altered to lithium which controlled her condition. In June 1998 she was admitted to the Armadale Clinic under the care of psychiatrist Dr Abramowicz as a result of emotional distress caused by her home being burgled. At around Christmas 1998 the appellant and her husband embarked on a trip around Australia in a Toyota Landcruiser. It was in the course of this trip that the accident occurred near Jundah in Queensland. The vehicle was driveable after the collision and the appellant and her husband drove from Jundah to Longreach, a distance of some 220 kilometres. At around lunch time on 21 March 1999 the appellant saw a medical health officer in Longreach. From Longreach the appellant and her husband travelled a further 650 kilometres to Mount Isa where she was seen at the Mount Isa Hospital. They then drove 193 kilometres from Mount Isa to Camooweal where they camped for four to five days. From there they drove to Tennant Creek, a distance of some 500 kilometres and from there a further 1,000 kilometres to Darwin, arriving on 1 April 1999. The appellant was seen at the Darwin Hospital on four occasions. After their vehicle had been repaired in Darwin, they drove some 4,000 kilometres to Perth.

8 Between 6 May and July 1999 the appellant consulted Dr Sritharan, a general practitioner and thereafter she became a patient of Dr Duck, another general practitioner. That is, the appellant began using Dr Duck's services after 23 May 1999 which was, on the trial Judge's finding, the date by which the appellant had recovered from her accident-caused injuries. Under Dr Duck's supervision the appellant was prescribed a very large amount of strong medication for her claimed pain state which took place over 18 months. It was accepted that the drug regime was not only excessive but highly inappropriate resulting in the need for her to undergo a detoxification programme in mid-2002, which was successful.

9 A number of doctors gave evidence at trial including Dr Anderson, a pain specialist; Dr Krishnan, the appellant's general practitioner after Dr Duck; Dr Law, a psychiatrist; Dr Iyyalol, the appellant's treating psychiatrist after Drs Toussant and Abramowicz; Dr Baskaranathan, a consultant physician; Dr McCarthy, a consultant psychiatrist and physician; Dr Finlay-Jones a psychiatrist; Dr Batalin an orthopaedic surgeon and Dr Silbert a neurologist. Reports of other doctors were tendered by consent. There was a difference of medical opinion on whether the appellant was suffering from accident-caused post-traumatic stress disorder, somatoform disorder, or conversion disorder. Both somatoform disorder and conversion disorder involve the conversion of psychological stresses into physical symptoms. There appeared to be significant medical agreement with the proposition that the pain and disabilities of which the appellant complained had no, or no proportionate, organic cause. The trial Judge preferred and accepted the evidence of Drs McCarthy, Finlay-Jones and Silbert on the central medical issues.

10 The appellant contends in her grounds of appeal that:

1. there was no evidence to support a finding that the appellant had recovered from her accident caused injuries by 23 May 1999;

2. the finding that the appellant had not suffered post-traumatic stress disorder or any other accident related psychological injury was against the evidence or the weight of the evidence;

3. the Judge erred in her credit based assessment of the appellant as being a careful witness and in concluding that her fainting spells which occurred in court were contrived;

4. the Judge erred in awarding the respondent (defendant) costs subsequent to the date he filed an O 24A offer because it was not in a form capable of acceptance.

11 In support of her contention that there was no evidence for the trial Judge's finding that the appellant had recovered from her accident-caused injuries by 23 May 1999, the appellant relies on the evidence of her treating doctors, in particular that of her pain specialist Dr Anderson who treated her over a 20 month period. Indeed, the evidence clearly establishes that the appellant was receiving medical treatment for claimed accident-caused pain and disabilities until at least mid-2002.

12 The trial Judge's progression to the disputed finding is as follows. The trial Judge found that the appellant complained and presented in a way that was totally disproportionate to any findings on physical examination. That is, the pain and disability of which the appellant complained was "totally" disproportionate to any accident-caused physical injuries. Further, the trial Judge was not satisfied that the appellant suffered from any accident related psychological or psychiatric symptoms such as post-traumatic stress disorder, somatoform disorder, conversion disorder, anxiety disorder, headaches or depression. That is, the trial Judge did not accept that the pain and disabilities of which the appellant complained resulted from a neurosis or psychological condition which itself was caused or materially contributed to by the accident.

13 Further, the trial Judge made an adverse assessment of the appellant's credibility and reliability. This affected not only the assessment of the appellant's evidence at trial but also the truthfulness and reliability of the information given by the appellant to medical practitioners on which their medical treatment and opinion was based. Simply put, the trial Judge concluded that the appellant was an unreliable historian. It is trite law that unless the factual foundation on which an expert opinion is based is proven at trial, the medical opinion based on those facts can be given no weight: Pollock v Wellington (1996) 15 WAR 1.

14 I proceed on the basis that the factual pillars on which the disputed finding is made survive the challenge in grounds 2 and 3 of this appeal. As a result of the findings to which I have referred, the trial Judge was left to rely on the objective facts and make an assessment of what was reasonable in the circumstances both in relation to the extent of the compensable injuries and the timing of the appellant's recovery. The trial Judge found that the appellant suffered a whiplash injury and a thoracolumbar soft tissue injury with associated pain and emotional distress of short duration. The Judge had to make an assessment of the recovery period for those injuries. She had no specific (or reliable) medical evidence to assist. Mere difficulty in making an assessment as to the timing of the appellant's recovery does not relieve the court from its duty to do so. However, the difficulty of the exercise makes it harder for the appellant to successfully challenge the finding, particularly in the absence of any reliable medical expert opinion. In my view, the finding is open and ought not to be disturbed. I would dismiss this ground of appeal.

Accident-caused Psychological Injury (ground 2)

15 The appellant challenges the trial Judge's conclusion "that it was not established on the evidence and therefore she did not find" that the appellant suffered any psychological or psychiatric symptoms as sequelae of the accident. In particular, the appellant relies on the medical experts who concluded that the appellant had suffered accident-caused post-traumatic stress disorder, travel phobia, and a psychological pain state. Further, she contends that reliance on Dr McCarthy was misplaced and the Judge erred in rejecting Dr Iyyalol's evidence that the appellant suffered from a pre-existing recurrent depressive disorder rather than bipolar affective disorder.

16 There was a division of medical opinion on these matters. Drs Krishnan and Law were of the opinion that the appellant suffered from an accident-caused post-traumatic stress disorder and Dr Iyyalol's evidence was that some features of post-traumatic stress disorder were present although it was not full-blown.

17 Dr Krishnan was the appellant's treating general practitioner after Dr Duck. As the Judge correctly noted, Dr Krishnan gave no detailed evidence as to what he concluded about the condition or why, from which she inferred that he had simply accepted, inter alia, Dr Law's diagnosis of post-traumatic stress disorder. As to Dr Law, the trial Judge said that Dr Law did not give written or oral evidence as to the basis for his diagnosis of post-traumatic stress disorder and accordingly it was not possible to know exactly why he reached it or upon what criteria if any he based it. That is true of his reports. However, in oral evidence he said he based his conclusion on the fact that "she still had lots of memory about the accident" and had a fear of travelling in cars. As to Dr Iyyalol's opinion that the appellant demonstrated some features of post-traumatic stress disorder, he identified them as a travel phobia and anxiety. The evidence of these practitioners was by way of assertion with little explanation or elaboration.

18 Drs McCarthy and Finlay-Jones reached different conclusions. Dr McCarthy first saw the appellant in November 2002 at the request of the respondent's insurer. The Judge, fairly in my view, described his evidence as extremely clear, concise and informative. In Dr McCarthy's opinion, the appellant was not suffering and had never suffered from post-traumatic stress disorder because relevant symptoms, such as nightmares or intrusive memories, must closely follow within days or weeks of a genuinely stressful event. The appellant had not complained of experiencing these symptoms. He said there must also be events of avoidance phenomena or anxiety and conceded that could be manifested in a fear of travelling in a car. The appellant had given evidence of having a car phobia. Dr McCarthy said that in his practice he had seen many patients suffering from the disorder and this experience also caused him to exclude the appellant as suffering from the disorder.

19 Although Dr McCarthy was not the appellant's treating psychiatrist and had seen her at a late stage, he was experienced in the area and had clearly explained the basis for his opinion. I do not accept that reliance on his evidence was misplaced. Further, his opinion was supported by Dr Finlay-Jones. Dr Finlay-Jones also noted that the appellant did not report any symptoms suggestive of post-traumatic stress disorder arising after the accident such as, for example, nightmares or flash backs. This is in the context of Dr Finlay-Jones accepting the appellant's description of having an accident-caused travel phobia.

20 The trial Judge preferred and accepted the evidence of Drs McCarthy and Finlay-Jones. Unlike the other medical practitioners, they had more clearly and persuasively explained the basis for their opinion. In these circumstances, it was open and, in my view, appropriate for the trial Judge to prefer their evidence.

21 As to a travel phobia, the medical opinion on that subject was based directly on the appellant's history given to the practitioners and is undermined by the trial Judge's assessment of the appellant as an unreliable historian. The other psychologically based symptoms are most appropriately discussed in the context of the challenge to the trial Judge's credibility finding.

22 The trial Judge also concluded that the weight of the psychiatric medical evidence supports the conclusion that the appellant suffers from bipolar affective disorder. That is a correct statement. The appellant's earlier treating psychiatrists, Drs Toussant and Abramowicz both diagnosed bipolar affective disorder as did Drs McCarthy, Finlay-Jones and (it appears) Dr Law. Dr Iyyalol diagnosed a recurrent depressive disorder. The trial Judge noted that Dr Iyyalol did not clearly explain why he disagreed with the diagnosis of bipolar disorder "except that he could find no manic or hypermanic episodes in her past, which evidence I consider did not advance the matter a great deal". I infer from Dr Iyyalol's evidence and from his alternative description of the condition as manic depression that they are necessary symptoms of the condition. However, it is reasonable to conclude that former treating psychiatrists would be in a better position than Dr Iyyalol to assess the appellant's past behaviour. In any event, no one identified, and I am unable to see, any basis for attaching any significance to the precise nature of the pre-existing psychiatric condition from which the appellant suffers.

23 The appellant also contends there was no evidence to sustain the alternative finding that if she suffered from a pain disorder or depression they related to her pre-existing psychiatric or psychological condition and were not accident related. It is unnecessary to deal with this matter because it is based on and supported by the trial Judge's primary finding that the appellant did not suffer any accident related psychiatric or psychological symptoms and the related credibility assessment of the appellant.

24 For these reasons I would dismiss ground of appeal 2.

25 The appellant's ground of appeal is in the following terms:

"The learned trial Judge's findings adverse to the appellant's credit based on an assessment of her being a 'careful witness' and her finding that the fainting spells which occurred in court were contrived because there was not the slightest disorientation of the appellant subsequent to those fainting spells are wrong:

(a) the question of whether or not there should be disorientation subsequent to a fainting spell is one which is not within the proper exercise of judicial notice but rather requires expert evidence;

(b) the appellant's behaviour in the witness box and in so far as the fainting spells was concerned was consistent with the description of a conversion disorder as detailed by Dr Iyyalol in his evidence;

(c) the evidence of her treating doctors and in particular Drs Iyyalol and Anderson was that the appellant was genuine in her presentation to them."

The ground of appeal is not exhaustive in its identification of the issues on which the trial Judge based her assessment of the credibility and reliability of the appellant. The trial Judge expressly rejected the appellant's "very firm evidence" that as a result of the accident she immediately became unconscious and remained in that state for the next two days. That evidence was inconsistent with the Longreach Hospital records which record the appellant as being fully alert and oriented with no thought disorder. Further, the trial Judge did not accept the appellant's evidence that between 23 March 1999 until the appellant consulted medical practitioners in Darwin she was suffering hallucinations and relatively extreme physical pain and discomfort. The Judge considered it quite implausible that, if the appellant was in the claimed physical and mental state immediately following the accident, she would have been in any condition to travel over two and a half thousand kilometres. These matters are not challenged in the appeal.

26 The trial Judge also accepted Dr Silbert's evidence that preparatory to his physical examination of the appellant she intentionally and abruptly ceased attempting to remove her jumper herself. The inference drawn by the trial Judge was the appellant knew that if she had done so it would have been very inappropriate behaviour given her complaints that she could do little or nothing physically to look after her needs because she was unable to lift her arm or arms. This finding is not challenged.

27 Further, the appellant's evidence of other impairments such as her hearing and concentration were assessed by the Judge as being inconsistent with her presentation and demeanour in the witness box.

28 Another matter concerned the appellant's evidence of her fainting spells. According to the appellant, initially they were occasional but that approximately 12 months before trial they increased to the point where she suffered up to six fainting spells a day. Twice during the course of giving her evidence on the first day of the trial she suffered a fainting spell. The appellant, sitting in the witness box with her mother sitting on her right, fell or slumped directly towards her mother on each occasion. In the trial Judge's assessment, she revived quickly and exhibited no confusion or disorientation and continued to calmly answer the question that was then posed to her. The appellant had another fainting spell on the second day of the trial. She was sitting in the public gallery at the back of the court with her mother seated on her left-hand side and an empty space on her right-hand side. The appellant fell directly towards her mother. The trial Judge gave these matters particular significance and weight in her assessment of the appellant's credibility and reliability. She said:

"In my opinion these were contrived in the sense that the [appellant] was fully aware of what she was doing and the only inference that can fairly be drawn in my view is that she was engaging in this behaviour for dramatic affect and to enhance the prospect of her claim succeeding. There was not the slightest hint of vagueness or disorientation when she 'came to' in the witness box, after which time her speech continued to be clear and concise and her presentation was one of complete composure. I find it entirely implausible that over the years when the appellant has allegedly been suffering these fainting spells, often up to six times a day, she has never once had such an episode in front of a medical practitioner ... . I do not regard it as mere coincidence that the appellant has never had such an episode in front of a medical practitioner."

29 Dr McCarthy had given evidence that he left his interview with the appellant for a short time and on his return was informed by her mother that the appellant had fainted. Dr McCarthy noted no physical evidence of psycho motor retardation or aggravation, or any evidence of postictal confusion or other abnormality which he said he would expect to observe in the circumstances. Based on this evidence there was a proper foundation for the trial Judge's expectation that following a faint the appellant should demonstrate some degree of post-fainting confusion or other disturbance in her demeanour or presentation. I note for the sake of completeness that the ground of appeal does not raise any issue of procedural fairness.

30 I turn now to the contention that the appellant's behaviour in the witness box and her fainting spells were consistent with a conversion disorder. It was Dr Iyyalol's evidence that a conversion disorder involves the conversion of psychological stresses into physical symptoms which can be demonstrated by a loss of consciousness and, in the appellant's case, the disorder was demonstrated in her fainting fits. The trial Judge did not accept that the appellant suffered from a conversion disorder or a somatoform disorder. She preferred and accepted the evidence of Dr McCarthy to the effect that these disorders operate at an unconscious level whereas the appellant had a significant degree of awareness and consciousness regarding her presentation to others, in particular medical practitioners. The trial Judge concurred in that assessment. She said:

"The [appellant] presented as a careful witness and it was my impression that she thought most fully about any answer that she gave to a question, lending weight to the argument that she is very aware and conscious regarding all aspects of her presentation to others."

31 It is the case that the appellant's treating doctors Iyyalol and Anderson assessed that the appellant was genuine in her presentation to them. However, that opinion was not shared by Dr Baskaranathan or Dr McCarthy who said the appellant was consciously embellishing or fabricating symptoms and that the accident was a convenient and partially contrived focus for the presentation of the appellant's neurotic symptoms and claimed dependency needs. Dr Silbert also concluded that, based on his experience and observation of many patients over the years, the appellant's behaviour was intentionally contrived and therefore inconsistent with conversion disorder or somatoform disorder.

32 However, the trial Judge reached an adverse view of the appellant's credibility and reliability on the basis of her assessment of the appellant's evidence, presentation and demeanour in court which coincided with the expert evidence that she accepted. She said:

"Having watched and listened carefully to the [appellant's] evidence in court and taking into account all of the other evidence, but in particular the medical evidence, I have no hesitation in accepting that the appellant's involvement in the motor vehicle accident has become a convenient and partially contrived focus for the presentation of her neurotic symptoms and claimed dependency needs."

33 It is very rare for an appellate court to interfere with findings of fact at trial based on an assessment of the credibility of a witness. In general, an appeal court will do so only where the testimony of a witness is in conflict with facts incontrovertibly established, or the decision at trial is glaringly improbable or contrary to compelling inferences in the case: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [26]. None of the matters raised by the appellant justify interference with the trial Judge's assessment of the credibility and reliability of the appellant or the factual findings resulting therefrom. I would dismiss this ground of appeal.

34 The respondent made an offer to compromise the appellant's claim on 30 April 2002. The offer was made under O 24A of the Rules of the Supreme Court and stated that the respondent was prepared to compromise the appellant's claim in the action for the sum of $80,000 damages, plus reasonable special damages.

35 The appellant contended that notwithstanding the offer to compromise was considerably greater than the damages ultimately awarded, the appellant should have all her costs including those accrued after 30 April 2002 because the offer was incapable of acceptance. In particular, it is said that what constitutes reasonable special damages is uncertain.

36 A sum of $8,529 had been paid by way of special damages on behalf of the appellant. Although paid on a without prejudice basis, it was made clear that if there was to be a finding against the respondent on the issue of liability, that money would not be the subject of recovery action. However, a sum of $6,661 was in dispute, it relating to a wide variety of medical practitioners and health professionals (providing treatment with respect to hormonal and family therapy and other matters). The trial Judge concluded that the appellant through her legal advisers could have been in little doubt as to what constituted special damages and the amount of special damages in issue. Indeed the full amount of the appellant's special damages claim (which included the amount already paid) was $27,657. Because the damages awarded were vastly less than the sum offered by the respondent the Judge ordered the respondent to pay the appellant's costs of the action up to and including 30 April 2002 and thereafter the appellant to pay the respondent's costs of the action.

37 If an offer made under O 24A is uncertain in its terms the party who made it is unlikely to obtain any benefit from it on the question of costs: Duncan & Weller Pty Ltd v Mendelson [1989] VicRp 36; [1989] VR 386 at 401; Seaman: "Civil Procedure in Western Australia", par 24A.1.1. In that case the offeree plaintiffs were joined by the offeror defendant as third parties. The settlement offer did not state whether it was made in respect of the liability of the plaintiffs in the third party proceedings as well as in discharge of the defendant's liability for damages in the claim.

38 The uncertainty in this case is not of the same nature or magnitude. It is not of such a character as to render any resulting contract void. The appellant goes too far in saying the offer was "incapable of acceptance". The issue is whether the uncertainty is such that in the exercise of the court's discretion it should vary the prima facie position in O 24A r 10(5). The prima facie position is that a plaintiff is entitled to an order against a defendant for 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 is entitled to an order against the plaintiff for costs in respect of the claim thereafter, taxed on a party and party basis. That was the order made by the trial Judge.

39 Even if for any reason an offer should not be treated as an O 24A offer, it may still affect the court's discretion as to costs. In a proper case it may result in a costs order to the effect made by the trial Judge in this case: Duvall v Godfrey Virtue & Co (A Firm) [2001] WASCA 163.

40 In this case any uncertainty as to the quantum of special damages was not material because the amount of the settlement offer significantly exceeded the amount awarded to the appellant together with the maximum of the special damages claim. In those circumstances, the costs order is appropriate and trial Judge did not err in the exercise of her discretion.

• Background
• Recovery by May 1999 (ground 1)
• Accident-caused Psychological Injury (ground 2)
• Credit Assessment (ground 3)
• Costs (ground 4)