Court of Appeal (WA)|2001-11-01|Before: Mr J, Steytler J, Wheeler J

Klahn v Audeh [2001] WASCA 336 (1 November 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KLAHN -v- AUDEH [2001] WASCA 336

Appeal - Evidence - Issue not raised by parties or trial Judge

Evidence - Witnesses - Credibility - Whether trial Judge entitled to make adverse findings about plaintiff's truthfulness

Damages - Measure of damages in actions for tort - Motor vehicle - Turns on own facts

Devries v Australian National Railways Commission (1993) 177 CLR 472

Matthew v Flood [1939] SASR 389

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Southgate v Waterford (1990) 21 NSWLR 427

State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

1 JUDGMENT OF THE COURT: This is a plaintiff's appeal arising from an assessment of damages for injury sustained by the appellant in a motor vehicle accident on 21 July 1996.

2 After a three day trial, the learned trial Judge awarded the appellant $47,344, broken down as follows:

"Loss of amenities $11,400

Past loss of earning capacity $19,110

Interest on past loss of earnings $ 2,235

Past loss of superannuation $ 1,638

Interest on past loss of superannuation $ 191

Future economic loss $ 4,900

Future superannuation loss $ 420

Future medical expenses $ 2,500

Future treatment expenses $ 2,500

Travelling expenses $ 2,450

Total $47,344"

3 There is no complaint about the sum allowed in respect of travelling expenses, but each of the other sums assessed by his Honour is said to be in error for reasons which are particularised in some detail in the grounds of appeal. The structure of the grounds of appeal is that the first three complain about findings made by the learned trial Judge that the appellant had exaggerated the seriousness of her complaints and had misled the Court and her medical advisers as to the amount of time she had worked since the accident, and certain findings also related to her credibility. If made out, those grounds would affect the findings made by his Honour in relation to non-pecuniary loss and past and future loss of earning capacity, and may have some impact also on his assessments in relation to medical and treatment expenses in the future. The remainder of the grounds challenge other aspects of particular assessments.

4 There seems to be no dispute that the appellant's injury occurred in July 1996 when she was the front seat passenger in a Pajero four wheel drive vehicle driven by her husband on the Kwinana Freeway. They had been in slow traffic and it appeared that their vehicle was stationary or stopping when the respondent's vehicle ran into the back of the Pajero. The tow bar on the Pajero penetrated the radiator of the respondent's vehicle, which had to be towed away. There did not appear to be significant damage to the Pajero, although some minor damage was later discovered. The appellant suffered a whiplash injury.

5 His Honour noted that the appellant's first reported description of the accident, so far as he was aware, was in September 1996 when she told Professor Taylor that the respondent's vehicle had crashed into the Pajero at "high speed" and that the respondent's vehicle was "a write off" and had to be towed away. His Honour noted the respondent's evidence that he had not been travelling at more than 30 or 40 kms an hour at the time of impact, noted that the appellant in cross-examination had said she did not disagree with the proposition that that was the speed of the respondent's vehicle, and noted that her explanation for describing the respondent's vehicle as a "write-off" was that she understood that that was the description of a vehicle which was towed away. His Honour found her explanation of that expression "very unsatisfactory", preferred the evidence of the respondent as to the circumstances of the accident (presumably as to the speed involved, as there was essentially no other dispute as to the circumstances) and then found that the appellant had exaggerated in her description of the accident to Professor Taylor.

6 Next, his Honour commented unfavourably on the fact that the general practitioner who first saw the appellant was not called to give evidence and that the first medical evidence in relation to the appellant's condition was that of Professor Taylor, who saw her almost two months following the accident. It is not entirely clear why this comment was made, since the trial was not conducted on the basis that there was no causal relationship between any of the appellant's current symptoms and the motor vehicle accident. It is not clear what the general practitioner would have been able to add. Certainly, nothing in the expert medical report served on behalf of the defendant would have alerted the plaintiff's advisers to a need to call a general practitioner who referred her within two months to a specialist.

7 His Honour then briefly outlined the history of the appellant's medical referrals and summarised the relevant medical evidence. In broad terms, the medical evidence was that the appellant suffered particularly from neck pain, headaches, tinnitus and depression, all of which related back to the motor vehicle accident. It was a feature of the management of the appellant's condition that she had had relatively invasive treatments at an early stage. Rather than managing her condition with gentle exercise, physiotherapy, massage and pain relief medication as needed, she had had treatments which had included rhizotomies, painful injections and expensive nutritional supplements. The respondent's medical witnesses expressed considerable surprise at that course of treatment, although conceding that the rhizotomies had apparently been effective in reducing her pain considerably for periods of up to six months at a time.

8 The main issues at trial raised by the defendant were not related to the severity of the appellant's symptoms, but to the questions of how long those symptoms were likely to persist, particularly if her treatment "went back to basics" and more conservative management was undertaken, and of the extent to which those symptoms incapacitated her from working full-time in her occupation as a real estate agent. The latter issue raised the question of the extent to which her inability to work full-time had resulted in loss of earnings. This question was particularly complex, since the earnings of real estate agents necessarily fluctuate, and work done may not result in income for a considerable period of time, so that it is difficult to relate fluctuations in income to fluctuations in working hours. In addition, the appellant had, in the years immediately preceding the motor vehicle accident, spent a considerable period of time away from work on holiday, so that there was a question as to the extent to which she would have been likely to have continued to take lengthy holidays in the future.

9 Although there was considerable dispute as to how long the symptoms were likely to persist and the extent to which they were likely to be incapacitating, and some degree of dispute about the severity of the symptoms, the existence of the major symptoms which we have described was not challenged by any medical witness. Professor Taylor, who was called by the appellant, gave evidence that a bone scan and MRI scan revealed a pathology which he said "corresponded exactly" to the nature and distribution of pain described by the appellant, and this evidence was uncontradicted. He further said that the blurring of vision and vertigo which she had earlier experienced (but which were improving) and her persisting tinnitus were "classically" associated with upper cervical injuries. This evidence too was not challenged. It appeared to be accepted by all medical witnesses that there was a close relationship between the symptoms which the appellant experienced and her depression, although there appeared to be some difference of view as to whether the pain and other symptoms caused the depression, or the depression was tending to cause the appellant to experience the pain as more severe than would otherwise be the case.

10 During the course of his evidence, Professor Taylor was asked about the understanding of the circumstances of the accident which he had gained from the appellant, and he replied that he had thought it to be a "high speed" impact and that this corresponded with his assessment of the severity of the injury with which she presented. He noted that there were studies that showed a "reasonable" correlation between the severity of the impact and the injury. In relation to this evidence, his Honour made the following observations:

"Professor Taylor considered it important to get a history of the severity of the crash because that had a bearing. There was a reasonable correlation between the severity of the impact and the injury.

In my view Professor Taylor's evidence is based upon his view of the severity of the accident. It is my finding that the accident was not as severe as Professor Taylor understood it to be. In that respect I am not prepared to accept Professor Taylor's account as to her condition. I accept that she has had all of the treatment referred to by Professor Taylor but in my view that is part of the problem. I prefer the evidence of Professor Hollingworth and Mr Desmond Williams that she should have been treated conservatively."

11 So far as her capacity to earn income was concerned, his Honour noted that the appellant said that she was working approximately 25 per cent of the time compared to her pre-accident time. As we understood her evidence, this was 25 per cent of the hours per week that she had previously worked in the weeks that she was working, rather than 25 per cent of the total hours that she had worked in previous years; as we have noted, this latter figure would be significantly affected by lengthy periods of holidays. His Honour said:

"That is not the same thing as saying that her earnings are 25 per cent of what they were before the accident but it is a proposition that I do not accept."

12 He then set out the appellant's gross commissions for the years 1993 through to 1999 and noted that the average gross commissions for the four years preceding the accident were $52,197 per annum, while the average gross commissions post-accident were $42,576, being a reduction of 18 per cent approximately in dollar terms.

"I find it very difficult to accept that if the plaintiff was only putting in 25 per cent of the time that she was previously putting in that her average gross earnings post accident would only fall by 18.43 per cent. It is my finding that the plaintiff has misled the Court and her medical advisers as to the amount of time she is putting in working. On those figures it could not be the position that she is only putting in 25 per cent of the time that she was pre-accident."

14 His Honour then rejected a submission that the appellant's previous holidays had been unusually lengthy, and that they would have been unlikely to continue at that rate. His Honour did not refer to the evidence of Mrs Brown, a co-director of the real estate company for which the appellant worked, whose evidence was that the appellant had been a particularly good real estate agent, that the trend at that particular company was for sales to rise and for the agents' commissions to increase over the years, and that her observation was that the appellant had been working "far less hours" than she had prior to the accident.

15 It was under the heading of "Loss of Amenities" that his Honour drew together a number of adverse findings in relation to the appellant. The relevant paragraph reads as follows:

"In my view the plaintiff has exaggerated the seriousness of the accident that occurred and her complaints to her medical practitioners and in her evidence before me. Examples of that are the exaggerated severity of the collision to Professor Taylor and her evidence to me that she is only able to work 25 per cent of the time that she was working pre-accident. I comment on both of these aspects elsewhere in my reasons for decision. I also find that she has exaggerated her symptoms to her medical practitioners. For example when Professor Hollingworth saw her on 25 March 1998 she had more tenderness than on the first examination. He considered it was very unusual in a whiplash type injury to be developing new symptoms. When he saw her on 13 September 1999 she had further new symptoms. I accept Professor Hollingworth's evidence in this respect. In my view the explanation is that the plaintiff is exaggerating her symptoms."

16 In relation to Professor Hollingworth's evidence, we would note that Professor Hollingworth himself did not express the view that the appellant's symptoms were not genuine. On the evidence at trial there would appear to have been at least two ways in which the alteration in her symptoms for the worse might have been accounted for. First, it was the evidence of a number of medical practitioners and of the appellant herself, that on those occasions when she had rhizotomies she experienced considerable pain relief and that her symptoms would then gradually worsen again over a period of six months, so that the timing of Professor Hollingworth's examinations in relation to her rhizotomies may have been relevant. On the medical evidence, relatively short term relief is to be expected from a rhizotomy. Further, it seems clear from Professor Hollingworth's evidence that, as was also accepted by other medical practitioners, there were a number of degenerative changes present in the appellant's spine which were producing certain symptoms which did not stem from the motor vehicle accident. New symptoms may have been referrable to that other degeneration aggravated by exercise she was advised to take, but may have overdone; or to similar aggravation of the effects of her injuries. Also, prior to the shoulder problem, the plaintiff had tried going off her Efenor tablets for about 6 weeks, which may have had an effect.

17 The findings which his Honour made are findings which are of course open to a trial Judge in a case of this kind. However, it is important that findings should be made in the context of the trial as it was fought. We have already noted that the respondent did not suggest that the appellant had not suffered symptoms as a result of the motor vehicle accident, or that the appellant's injuries had entirely resolved. It was no part of the respondent's case that the appellant was exaggerating, although she was put to proof of her symptoms. It is noteworthy that when regard is had to the schedules which were supplied by each party to his Honour the learned trial Judge, the amounts which the respondent was prepared to concede it might not be unreasonable for his Honour to award, totalled approximately $86,000, considerably in excess of the amount in fact awarded by his Honour.

18 That is of course not the end of the matter. Judges are both entitled and bound to think for themselves and to determine cases according to the evidence in front of them. It may be the case that during the course of a trial the evidence takes a turn not anticipated by the parties, or a party or witness is revealed to be a liar when neither party had raised that possibility in advance. However, natural justice requires that before adverse findings of this kind are made against a party, the party be on notice that such findings are possible. In this case, it was no part of the respondent's case that the appellant was exaggerating in the manner we have described, and his Honour did not raise that possibility during the course of the trial. It was only during the course of the closing address of counsel for the appellant that the tenor of some of his Honour's remarks made it clear that there was a prospect that he might make findings broadly of the type which we have described. That was, in our view, too late a stage at which to raise these issues.

19 Had his Honour indicated earlier in the course of the trial that there was a prospect that he might make findings of the type which we have quoted, it would of course have been open to the appellant to ensure that those issues were explored thoroughly in cross-examination. For example, the nature of the alleged inconsistencies in presentation to Professor Hollingworth could have been raised both with him and with other witnesses. It may even have been the case that the appellant would wish in such a situation to call additional witnesses; it is not impossible, for example, that certain of the new symptoms observed by Professor Hollingworth may have been attributable to side effects of the medication taken by the appellant and that an expert in pharmacology would be required. Further, to the extent that the matters raised by his Honour reflected directly on the credit of the appellant, it would in our view have been necessary to raise them directly with her so that her response could be observed. His Honour did this, so far as the description of the other vehicle as a "write-off" is concerned, but no one raised with her the alleged inconsistencies in the way in which she presented to Professor Hollingworth.

20 It is our view that ground 1 of the appeal, which alleges that his Honour erred in finding that the appellant had exaggerated the seriousness of her complaints to her medical practitioners, is made out. It was not open to his Honour to make this finding in circumstances where the issue had not been raised by the parties, nor by his Honour himself at any time during the course of the evidence.

21 The second ground of appeal, which alleges that his Honour erred in finding the appellant had misled the court and her medical advisers as to the amount of time she had worked since the accident, is more difficult. His Honour was entitled to have regard to the amount which the appellant had earned as a factor in evaluating the extent to which she was able to work after the accident. The extent to which she was able to work was an issue that was explored during the trial. However, to an extent, this finding is one which depends upon the credibility of the appellant as a witness and it is therefore tainted by the view which his Honour had wrongly formed as to her exaggeration of symptoms. Further, in relation to an issue of this importance, his Honour apparently gave no weight to the evidence of Mrs Brown, yet did not give any reason for disregarding it. It is therefore our view that this ground also is made out, although upon a basis somewhat different from that alleged by the particulars to the ground.

22 Appeal ground 3 challenges a number of his Honour's findings "to the extent that such findings impact on the credit of the appellant ...." These include findings as to the percentage disability of the whole of the function of the spine which resulted from the appellant's accident, as to whether the appellant had a permanent disability, as to the percentage of the most extreme case represented by her disability, and as to what future treatment would be required for her. This ground, in our view, is made out. His Honour's assessment of both pecuniary and non-pecuniary damages is plainly based upon his Honour's finding that the appellant did not have symptoms which were as severe as she claimed that they were; it necessarily follows that his Honour formed the view that her income earning capacity would not be greatly affected by those symptoms and that she would recover from them in the relatively near future. Additionally, his Honour appears to have preferred the evidence of Professor Hollingworth to that of Professor Taylor, on the basis that the appellant had not been truthful with Professor Taylor. As we have noted, that underlying finding was one which his Honour erred in reaching.

23 That leaves the question whether this Court can re-assess the damages, or whether it is necessary to order a new trial of them. If, in order to render justice upon the re-assessment, it would be necessary to resolve the serious issues concerning the appellant's credit that the judge thought the case involved, there would be much to be said for the proposition that an appellate court would be confronted by grave difficulty in endeavouring to do so. However, in our opinion, the respondent is not entitled to have us resolve this issue; for it was not an issue which the respondent ever raised. A party is not entitled to pursue on appeal a case entirely different from that put forward at the hearing, unless the Court can be sure that the evidence would not have been different had the new case been put forward at the proper time. It would be contrary to this principle to order a new trial now in order to enable the respondent to make the kind of case the judge had in mind, which the respondent himself did not suggest in cross-examination or in evidence at the hearing.

24 In our opinion, the question is whether this Court can assess the damages, the case being regarded as one in which there is no allegation of conscious exaggeration by the appellant of the severity of the impact; of the severity of her symptoms; or of the extent to which she is now limited in performing the work which she previously was able to perform. This, of course, does not mean that the extent of these things is not to be examined and assessed on the basis that, perhaps, the Court may not see their nature and consequences in quite the same light as that in which the appellant herself views them. But, the respondent not having challenged her general truthfulness and honesty at the hearing, the assessment should proceed on the basis that there cannot be any such challenge now.

25 At the hearing of the appeal, it was conceded on the respondent's behalf that "his Honour clearly dealt with ... a different case than the one that was being put to him by the respondent", and counsel stated plainly that there was no objection to this Court, if it concluded that the appeal should be allowed, proceeding to re-assess.

26 The setting aside of his Honour's view that the plaintiff had exaggerated matters, including her account of her symptoms, has important implications for the consideration of the medical evidence. It was because Professor Taylor and Dr Finch accepted the appellant's complaints, with the consequence that they treated her for organic disabilities causing severe pain, and because the judge considered Professor Taylor's evidence to be "based upon his view of the severity of the accident", as described by the appellant, that the judge preferred the evidence of Professor Hollingworth and Dr Williams. But if the approach to the medical issues is freed of the influence of a general rejection of the appellant's evidence as exaggerated, there is no reason to dismiss outright the opinions of the highly qualified specialists who saw most of her, although, of course, the opinions of other doctors may lead to some modification of the prognosis suggested by Professor Taylor and Dr Finch.

27 One section of his Honour's judgment requires some further discussion. As we have earlier mentioned, he said:

"In my view Professor Taylor's evidence is based upon his view of the severity of the accident. It is my finding that the accident was not as severe as Professor Taylor understood it to be. In that respect I am not prepared to accept Professor Taylor's account as to her condition. I accept that she has had all of the treatment referred to by Professor Taylor but in my view that is part of the problem. I prefer the evidence of Professor Hollingworth and Mr Desmond Williams that she should have been treated conservatively."

Two issues arise out of this: whether the finding about the basis of Professor Taylor's evidence can be sustained; and what weight should be given to the Judge's comment that the treatment was part of the problem. As to the first point, we have earlier mentioned that Professor Taylor records the appellant as having told him that her car stopped on the highway and a Magna following at high speed crashed into the back of it. According to the doctor's note, she added, "the Magna was a write-off and had to be towed away". In fact, the evidence is that the car driven by the respondent (a Mitsubishi Magna) was not written off, but the cost of repairing it was $3,211. The respondent's evidence about his speed was that he had been stationary, and had "then moved forward about 10 metres (not having reached a speed of more than 30 to 40 kms per hour)" when he hit the back of the vehicle in which the appellant was travelling. Not surprisingly, this account was attacked in cross-examination, causing the respondent to retreat to a description of his stated speed as an "estimate". Asked then: "Could it have been 50 or 60 kms an hour?" he replied: "I doubt it." He acknowledged he "must have accelerated fairly heavily to get to that speed [30 to 40 kms] in the space of 10 metres". A question to Professor Taylor whether, if the speed of the respondent was "as low as 30 to 40 kms per hour", that would change his view about the causation of injury to the appellant by the collision, was answered:

"No. I think she suffered a moderate to severe injury in the collision, and even if it was only 40 kms an hour there are still quite high G-forces involved and women are demonstrably more susceptible to injury than men, and extension injuries are worse than side impacts and front impacts."

There is simply no reason at all to be dubious about this opinion.

28 As for the suggestion that the treatment "is part of the problem", even so, the treatment was a consequence of the injury; and the appellant is not responsible for the decisions taken by her doctors unless the proper conclusion is she acted unreasonably in accepting their advice. Neither the respondent nor the judge made any such suggestion in Mrs Klahn's case.

29 Professor Taylor graduated in medicine at Edinburgh in 1955. In 1974, he obtained a PhD at Edinburgh, and in 1975 he came to Western Australia to do clinical work in a spinal unit and as a full-time academic in anatomy conducting spinal research. He is a life member of the Spine Society of Australia and New Zealand by virtue of his research into spinal injuries, has an honorary fellowship of the Australian Faculty of Rehabilitation Medicine, and over the past seven years has seen just under 1000 patients in a pain clinic, 60 per cent of whom were suffering from neck injuries. He was the treating specialist of the appellant from 19 September 1996 (approximately two months after the date of her accident on 21 July 1996) until his recent retirement from clinical practice. He considered her injury was typical of a whiplash injury, which, he said, in "20 to 30 per cent of all those that are injured result[s] in chronic pain syndrome with neck pain, headaches and arm pain and in about 50, 60 per cent or more of those who have chronic pain, there is the development of a reactive depression because of the chronic pain and that is substantially what has happened in this case." In respect of the appellant, he gave evidence that "a bone scan performed in July 1998 showed C2-3 facet joint arthropathies most marked on the left side as well as right temporomandibular arthropathy". The significance of that, he pointed out, was "that the pathology corresponded exactly to the nature and distribution of the pain and the clinical findings of local tenderness in these areas, so that I formed a conclusion that the pathology demonstrated was almost certainly responsible for the pain syndrome that I had observed. There were other symptoms relating to arm pain which probably related to lower cervical problems but the major problem was the upper cervical problem relating to these findings ...". He made it clear that an arthropathy (being the name used in nuclear medicine) is really the same thing as an arthritis, and that the probable cause was "damage to the articular cartilage and other parts of the articular surface, with damage to the capsular structures and initially at the time of the injury almost certainly bleeding into the joint."

30 Professor Taylor also gave evidence that the "reactive change in the bone underneath the cartilage" revealed by the bone scan was "confirmed" by "a more recent MRI Scan", which "confirmed the arthropathy that was shown on the bone scan".

31 There were, additionally, degenerative changes, possibly affected by trauma, in the lower cervical spine at C5-6 and C6-7, but Professor Taylor considered "the principal symptoms" were related to the pathology revealed by the bone and MRI scans at C2-3. He said that "in severe whiplash trauma C2-3 is one of the joints most commonly affected" by articular damage "which gives chronic pain". Mrs Klahn complained of "occipital headache, which is typically referred from C2-3, and jaw pain, which is often associated with C2-3 problems". Tinnitus also, which she describes, "is a common association".

32 Professor Taylor made it clear Mrs Klahn's response to radio frequency lesioning treatment was a further confirmation of the affected C2-3 and possibly C3-4 facet joints as the area that was the source of pain. Because this treatment of the relevant nerves gave relief for up to five or six months, although unfortunately in its nature the response could not be permanent, he considered "we can be as certain as it is possible to be certain that we found the pain sources".

"I think in the foreseeable future she is unlikely to be fit for full-time work because I think that the pain and the disability will be ongoing."

He thought she had lost 25-30 per cent of neck movement, but 40 per cent "taking the pain into account". Nevertheless, over the next three to four years, he accepted that her ability to work in real estate could "gradually increase".

34 The appellant was also treated by Dr Finch, an anaesthetist who has specialised "entirely in pain medicine" for over 10 years, seeing "a large number of spinal injuries". He carried out Mrs Klahn's radio frequency treatments on a number of occasions. His evidence was that this procedure "gave her reasonable periods of improvement", and it "certainly has allowed her to get back working again". But he said his "prognosis for her is guarded. ... (S)he will probably not be able to work beyond the part-time that she is at the present". He also expressed the opinion that "it's very common that an asymptomatic joint becomes symptomatic after an accident and it stays that way". In relation to the C2-3 bone scan finding, he confirmed the view of Professor Taylor as to its significance as an explanation for the complaints of pain in this case, making it clear that, in a rear end motor accident, patients "often seem to be symptomatic in the top joint or two". Dr Finch's views were not modified by the suggestion that the impact speed was not high; in fact, and contrary to the proposition that the appellant had exaggerated the force of the collision to her doctors, he said she had told him "the damage to her vehicle was minimal", and he was "not sure about the other vehicle".

35 The appellant was also seen regularly by a clinical psychologist, Mr Alan Lazarus, who considered she was suffering from depression, her psychological state being markedly influenced by her pain levels from time to time. He considered "she in all likelihood is going to continue to require some form of psychotherapeutic assistance for the foreseeable future".

36 For the respondent, the appellant was seen on 26 August 1998 by Dr Williams, an orthopaedic surgeon. Dr Williams was critical, in evidence, of the quantity and intensity of treatment the appellant had received. That, of course, was a matter of the clinical judgment of those responsible. It was not a reason to discount the appellant's condition, in the absence of evidence that she had produced it by misrepresentation of her symptoms. To the contrary of that, Dr Williams accepted the bone scan in respect of the C2-3 facet joint as showing "an area of documented irritability", and said that when he saw Mrs Klahn she was "in great distress psychologically with marked persisting irritability". Speaking of the position at trial, he said: "This patient has had very limited gain. This is why we're here. She still has pain. She still has a very stiff neck." He expressly accepted "that she's working about a fifth of her pre-accident rate at the present time". He accepted that her "symptoms have been activated by the motor vehicle accident", and that "she has had a significant response to that". He considered "she needs ongoing psychological support", but he expressed the view that she would "gradually increase" her working capacity "over the next six to twelve months" to "about a half" and "then one would have to assess her at six months and twelve months and it may be that it takes a little longer than that, but somewhere we would see that path going upwards in terms of her function capacities". At the same time, Dr Williams gave evidence: "She hasn't stabilised following this injury. She is still very stiff".

37 Professor Hollingworth is a physician who has practised in Perth since 1978 as an occupational physician. As well as his FRACP, he is a Fellow of the Faculty of Occupational Medicine and a joint associate professor of occupational medicine in the School of Public Health at Curtin University. He saw the appellant on 17 February 1997, three and a half weeks after she had received one of her nerve block treatments. That possibly affected her presentation, making her condition seem less painful, although the doctor reported she "certainly at the present time ... does have this partial incapacity", ie, she was limited to working "about 3 days a week". Indeed, Professor Hollingworth wrote "the natural history of whiplash is that frequently it does not heal quickly". His criticism of her related to her impatience to recover, which he did not suggest was other than genuine, although he thought it unwise, and perhaps naïve.

38 Professor Hollingworth saw the appellant next on 24 March 1998. His report commences in a quite critical vein:

"I last saw this lady just over a year ago and was surprised at the intensive therapy which she has been having since then. I was also surprised, reading the reports that, although the specialist in oro-facial pain who has seen her, Dr Robert Delcanho, has said quite clearly that he does not think she has temporo-mandibular joint dysfunction, others who are writing reports are still talking about this. It appears his advice has been completely ignored."

It is true that Dr Delcanho reported he did not think what he described as Mrs Klahn's "fairly refractory chronic pain complaint" was due to "any intra-articular problem" of the temporo-mandibular joints. But, in July 1998, a few months after Professor Hollingworth wrote so critically, those treating Mrs Klahn had a bone scan done which, as Professor Taylor said, "showed ... right temporo-mandibular arthopathy", and was referred to in evidence by the orthopaedic surgeon called by the defendant, Dr Williams:

"Q. The fact that the bone scan showed an increased uptake in the right temporo-mandibular joint would confirm that that was a site of ongoing problems?

A. There is irritability in that joint."

This answer is to be understood in the light of a report of Dr Williams of 3 September 1998 which says "right sided temporomandibular joint arthopathy also appeared to be present".

39 Professor Hollingworth's second report gives no indication that he perceived a principal diagnosis of injury at C2-3, notwithstanding that his earlier report records an immediate cessation of tinnitus at the time of a right C2-3 facet joint injection performed by Dr Finch. Professor Hollingworth's opinion was "she has got soft tissue injury superimposed on ... mild underlying degeneration and that it is the soft tissue injuries which are giving trouble".

40 At his third and final examination of Mrs Klahn 18 months later on 10 September 1999, Professor Hollingworth made a volte-face. Instead of describing the degeneration as "mild", he described it as "quite extensive". Instead of attributing her "trouble" to soft tissue injuries, he says "her current treatment is for this degeneration" (which he had previously said "can't account for all her symptoms" - he then thought they were to be accounted for by the soft tissue trauma). And, whereas previously he had condemned "intensive therapy", now, he thought, "the radio-frequency which she has been having has been giving her a lot of help, and she may need to continue with this treatment". He also thought "she will need some sort of pain killer" and "some anti-depressant, and she may well need this for at least another 12 months". Indeed, he suggested a further 12 months of "anti-depressant" on top of that, as well as an increase in the dosage.

41 Very significantly, the prognosis, he now considered, should be quite guarded:

"As regards permanent disability as a result of these injuries, I believe she has a permanent disability, as a result of this degeneration. The tinnitus, normally, eventually goes away, but it is impossible to guess how many years hence that will be."

"I think that her ability to work remains significantly compromised, as a consequence of her on-going symptoms, but, as already detailed above, I do not believe all of her symptoms relate to the [motor vehicle accident]."

42 In view of the suggestion by the trial judge that Mrs Klahn exaggerated her problems, it is interesting to note Professor Hollingworth makes reference to her downplaying both her employment difficulties and her difficulties with housework. As to the former, she told him that "financially", she and her husband "are OK and she does not need to work very hard at it". As to the latter, "she, herself", the doctor said, "quite sensibly points out, there are relatively few jobs [in the house] where there is a need to have both arms above your head" (which causes her difficulty).

43 Mrs Klahn was also seen in August 1999 and February 2000, for the defendant, by a psychiatrist, Dr S Febbo, who expressed the opinion that her presentation was "in keeping with a partially treated Major Depression", and that "to a significant extent, her prognosis from a psychiatric perspective will be determined by her physical condition". He considered that "[c]ertainly once her physical condition resolves, then it would be important for her antidepressant medication to be continued for a further 6-12 months", and further that she "may well need to take antidepressant medication in future again if her mental state deteriorates in the context of an exacerbation of her physical condition". He thought allowance should be made, against that event, "for, say, 15-20 sessions with a psychiatrist".

44 This summary of the medical views reveals a completely different picture from that painted by the trial judge. Mrs Klahn does not emerge as a person seeking to exaggerate to get compensation, but as one who was willing to undergo extensive treatment in her impatience to recover and return to full-time work. No doctor doubted the reality either of her pain, headaches and tinnitus, or of her depressive illness as a result. The differences between the doctors related to (1) the diagnosis of the mechanism by which the symptoms were initiated; and (2) the appropriate treatment. Clearly, these two matters were not unrelated.

45 Professor Taylor's diagnosis fastening on the C2-3 level was made clinically within about two months of the injury. He had the advantage of seeing her early and frequently, so that he could correlate symptoms with findings and the course of treatment. His findings were made with the advantage of vast experience of spinal, particularly neck, cases. His clinical opinion was confirmed a month later by "a substantial improvement" following a C2-3 facet joint injection, and over the following years by the results of radio-frequency lesions done in that area. Later, both bone scans and MRI scans confirmed the presence of an arthritic change at C2-3.

46 Professor Taylor's opinion is supported by Dr Finch, who had also specialist experience in relation to pain caused by neck injuries, and many opportunities to observe Mrs Klahn.

47 Both Professor Hollingworth and Dr Williams came to Mrs Klahn's case somewhat later - Dr Williams over two years after the accident. Neither of them is a specialist in lesions of the cervical spine, Professor Hollingworth being an associate professor in occupational medicine, and Dr Williams an orthopaedic surgeon specialising particularly in hand arthritis and foot surgery and in arthroplasty of the shoulder, hip and knee. Of course, both were certainly qualified to express views about Mrs Klahn's neck. But they did not speak with one voice. Dr Williams was optimistic on the basis of an exercise programme; however, it should be remembered that Mrs Klahn, at one stage, allowed him to control her rehabilitation in accordance with his views about exercise, but without any satisfactory result. Professor Hollingworth's final view appears to concede Mrs Klahn has significant disability, while attributing it, at least in part, to a degenerative condition of her cervical spine. Of course, on the evidence, her previous condition was asymptomatic at the time of the accident, and became symptomatic following it, and (in the case of some symptoms) following exercise pursuant to Dr Williams's advice designed to alleviate the effects of the accident.

48 Taking all this material into account, together with the other evidence, the proper conclusion is that the appellant is significantly handicapped by pain, headaches, stiffness and tinnitus, as well as depressive illness. It is likely that these will improve over time, but unlikely that she will ever get back the full measure of her previous work capacity. She had had, as the respondent's own doctors have emphasised, nearly four years of quite unpleasant treatment up to the hearing in March 2000, without much success. At the same time, her condition was not such as to render gainful employment completely impossible, and she was able to work part-time. She was able to manage at home, with the help of a sympathetic husband. For these four years, and the uncertain prospects of her future, she was entitled to a sum of general damages, for pain and suffering and loss of the amenities of life. Taking into account her significant pain in the past, her ongoing symptomatology, including the depression, damages should be assessed at $33,300 (after deducting the threshold sum of $10,500) being 20 per cent of the most extreme case, and calculated as at the date of the trial Judge's assessment.

49 Her damages must also include a sum for future economic loss, calculated to reflect the Court's estimate of her loss of earning capacity for the future. In making that estimate, the Court must consider the chance that, by reason of her injury, she will not be able to do more than she could do as at the trial; the chance that she will be able to return to full-time work; and the chance that she will be able to achieve something in between. The task is complicated by the difficulty in knowing what the appellant would have been earning as at the date of the trial if she had not been injured. It is hard to find a person whose earnings could be taken as comparable so as to provide a yardstick. On the evidence, the other agents in the same office may either have earned significantly less, or, in one instance, significantly more.

50 The appellant's case was presented on the footing that she would have earned, but for her injury, an increment each year of $10,000 above the previous year. There was evidence that the business had only opened its doors in 1992, and the trend has been for commissions to increase. A director, Mrs Brown, gave evidence that, the appellant being the second best agent, "it would not be unreasonable" to expect that, if uninjured, she would have earned $96,000 in the year to 30 June 2000. However, the average of the other agents, excluding the one who was even better, was only $50,000, and the best of those other agents may have reached $60,000 to $65,000. The lowest figure may have been $20,000.

51 There was nothing in the cross-examination of Mrs Brown to cast doubt on her good opinion of the appellant as an agent. But the figure of $96,000 was an opinion of a somewhat speculative nature, which must be subject to the many relevant contingencies, including the appellant's health and inclination - the latter being specially relevant here since the appellant had taken long holidays on a number of occasions, and had expressed herself as not being in economic need. It may be more reasonable in this case to base calculations of loss of future earnings on a figure approximating the sum of $65,000 per annum, which is currently the second highest earnings figure. On that basis, the respondent's submissions at the trial accepted that the annual loss at that time could be put at $17,500 "after allowing for expenses and income tax" off a gross loss of $25,000 per annum.

52 But the respondent was urging an allowance for only a short period into the future. Having regard to all the medical evidence, and the contingencies (but conscious of the extent to which contingencies have already been taken into account), the loss should be allowed at this figure for a period of eight years. A figure based on that period at the full rate of $17,500 per annum allows for the various possibilities - in particular, a longer period, an earlier recovery, or a tapered recovery during a shorter or longer period.

53 Although calculations are involved, the result is an estimate, which can only be made in broad terms. Of its nature, it cannot be precise. Nevertheless, the respondent argued for a further deduction in respect of additional expenditure claimed to be involved in the earning of more commission. The submission cannot embrace a significant sum, since the basic expenses are being borne by the appellant in any case, and would continue at about the same figure were she able to earn more. At the hearing, the submission to which we have referred acknowledged that the loss "could reasonably be assessed" at $17,500 per annum on the basis of the gross figure of $65,000 per annum. No further adjustment is required, except the addition of an allowance for future superannuation loss, which should be assessed at $1,050 per annum.

54 As to the loss of earnings reflecting lost earning capacity up to trial, the appellant submitted figures, based on increments up to $95,000 per annum, totalling $89,840. Adjusting those figures to reflect the sum of $65,000 per annum, we arrive at an amount of $51,770. That is the sum which should be allowed, with interest at 3 per cent for a period of 3.9 years being $6,057, and an allowance for superannuation at $3,106, and interest on that of $388.

55 There are also claims for future medication and treatment expenses. The respondent accepted at the hearing that the weekly cost of medication was $65.49, and that an allowance of $5,000 for future treatment other than medication "might be reasonable". Estimating both these matters as best we may, we allow $12,000.

56 Past travelling expenses were agreed at $2,200. For the future, a further $1,000 would be reasonable.

58 The appeal should be allowed; and the damages should be reassessed at the sum of $224,911. The respondent must pay the costs.

Klahn v Audeh [2001] WASCA 336

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (84 paragraphs)

Klahn v Audeh [2001] WASCA 336 (1 November 2001)

Parties

Cases Cited (5)