Hodi v Kelly
[2004] WASCA 38
•12 MARCH 2004
HODI -v- KELLY & ANOR [2004] WASCA 38
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 38 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:36/2003 | 20 OCTOBER 2003 | |
| Coram: | STEYTLER J TEMPLEMAN J MCLURE J | 12/03/04 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ALEXANDER SANDOR HODI FRANCIS LEANNE KELLY RICHARD HARRY LAWRENCE |
Catchwords: | Tort Personal injuries Negligence admitted Trial on assessment of damages Whether trial unfair Whether reasons adequate Turns on own facts |
Legislation: | Nil |
Case References: | Jones v Dunkel (1959) 101 CLR 298 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HODI -v- KELLY & ANOR [2004] WASCA 38 CORAM : STEYTLER J
- TEMPLEMAN J
MCLURE J
- Appellant (Plaintiff)
AND
FRANCIS LEANNE KELLY
First Respondent (First Defendant)
RICHARD HARRY LAWRENCE
Second Respondent (Second Defendant)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY DCJ
Citation Number : [2003] WADC 38
File Number : CIV 659 of 2001
(Page 2)
Catchwords:
Tort - Personal injuries - Negligence admitted - Trial on assessment of damages - Whether trial unfair - Whether reasons adequate - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant (Plaintiff) : In person
First Respondent (First Defendant) : Mr J R Brooksby
Second Respondent (Second Defendant) : Mr J R Brooksby
Solicitors:
Appellant (Plaintiff) : In person
First Respondent (First Defendant) : Greenland Brooksby
Second Respondent (Second Defendant) : Greenland Brooksby
Case(s) referred to in judgment(s):
Jones v Dunkel (1959) 101 CLR 298
Case(s) also cited:
Nil
(Page 3)
1 STEYTLER J: I have had the advantage of reading the judgment to be delivered by Templeman J. I agree with it and with his conclusion that the appeal should be dismissed. There is nothing I wish to add.
2 TEMPLEMAN J: The appellant, Alexander Sandor Hodi, brought an action in the District Court against two defendants, in which he claimed damages for personal injuries arising from two motor vehicle accidents. They occurred on 4 July 1998 and 8 August 1999, respectively. At the time, Mr Hodi's principal occupation was a taxi driver. He contended that the accidents had been caused by the negligence of the respective defendants. Both defendants admitted negligence. The action therefore proceeded to trial on the question of damages only.
3 The action was dismissed because the learned trial Judge did not accept Mr Hodi's evidence. He was ordered to pay the defendants' costs. He now appeals against the decision. The single ground of appeal is that the learned trial Judge failed to give adequate or proper reasons for his decision. Particulars are given. I shall refer to them in due course.
4 Mr Hodi conducted the appeal himself. As he made his submissions, it became clear that his real complaint is not that the Judge gave inadequate reasons. In substance, Mr Hodi's complaint is that the trial was conducted unfairly, because, without his knowledge, one of the doctors whom he had attended after the first accident, gave evidence which contradicted his.
5 Mr Hodi's general practitioners were Dr Ho Lee Ng, and his daughter Dr Mei Lou Ng. The learned trial Judge referred to her as Dr Mei. I shall do likewise.
6 While Mr Hodi was under cross-examination, his counsel asked that the evidence of Dr Ng and Dr Mei be interposed. This was permitted: and Mr Hodi was asked to wait outside the Court while the doctors gave their evidence.
7 The evidence was given. But unbeknown to Mr Hodi, the evidence given by Dr Mei contradicted his evidence in one respect. In the course of the appeal, Mr Hodi said:
"So I was sent out from the courtroom. I haven't heard the evidence. When I went back, when I was called back to the courtroom, I notice that something change very much. I just couldn't describe it, your Honour. Even my counsellor (sic
(Page 4)
- counsel), Mr Pratt, looked at me with a different set of eyes, like I was a liar."
8 Mr Hodi went on to say that Dr Mei had been called without his knowledge and without his understanding that she would be called on his behalf. Mr Hodi believes this was done deliberately by his solicitor, to prevent him hearing the doctor's evidence, so that he would not be able to challenge it.
9 It is apparent from the transcript of the trial (at AB 65-7) that the request to interpose the Dr Ng and Dr Mei was made by Mr Hodi's counsel. The request was made shortly before the luncheon adjournment on the first day of the trial. It was made, counsel said, because "the Ngs … are obviously anxious to go".
10 This was confirmed by counsel for the respondents to the appeal, who had been their counsel at trial. He said that at the trial, he was asked by Mr Hodi's counsel whether the doctors could be interposed before he had completed his cross-examination of Mr Hodi. The respondent's counsel told us that he had completed the medical aspect of the cross-examination, so it would not have prejudiced his clients' position to interpose the doctors: "and it meant the doctors could simply get away" (TS 10).
11 It happens frequently that the evidence of professional persons, such as medical practitioners, is interposed in other evidence. That is done to enable such persons to avoid undue delay, which can disrupt a busy practice.
12 I see nothing sinister or untoward in the arrangements made to accommodate the Dr Ng and Dr Mei. Furthermore, I do not see show Mr Hodi could have avoided calling Dr Mei. She was the first doctor to be consulted by Mr Hodi after the first accident. Dr Mei was therefore an important witness. She was obviously available to give evidence. Had she not been called as part of Mr Hodi's case, the Judge would have been entitled to assume that her evidence would have been unhelpful to him in any event: Jones v Dunkel (1959) 101 CLR 298.
13 In the light of Mr Hodi's complaint, it is necessary to consider the effect of the evidence given by Dr Ng and Dr Mei, having regard to Mr Hodi's own evidence.
(Page 5)
14 Mr Hodi's evidence was that the first accident happened on 4 July 1998, while the taxi he was driving was stationary at traffic lights. The defendant drove her vehicle into the rear of his taxi.
15 Mr Hodi said the accident caused his head to ache. He was still suffering from a headache on the following morning and he had some discomfort in his neck. He said he had been involved in many smaller accidents but he had never suffered any ill effects "and I just thought I will be all right this time too" (AB 34).
16 Mr Hodi's counsel reminded him that he had consulted Dr Ng on 2 July 1998, two days before the accident. Mr Hodi said he did not remember the specific day, but that he had seen Dr Ng on a few occasions because he was experiencing dizziness. In fact, counsel was mistaken. When Dr Mei gave evidence, it became apparent that it was she, not Dr Ng, who had been consulted by Mr Hodi on 2 July.
17 Some time after the accident, Mr Hodi developed a problem with his jaw: he found it very hard to open his mouth. He also experienced pressure in his ear and he still had a headache (AB 36).
18 Mr Hodi went to see Dr Ng. He was not available, so Mr Hodi saw Dr Mei. Mr Hodi said he had no independent recollection of the date, although he had seen from "the medical record" that it was a date in July. His evidence was as follows:
"Why did you go and see Dr Ng that day?---Well, there was two reason: to check my blood pressure, and the other reason is my headache. I was concerned about the headache but, you know, probably I am not sure if I mentioned to Dr Ng's daughter, you know, about my neck discomfort or pain in the jaw. I always had the attitude that if I am not injured, or injured, that will go away, you know don't think about it, keep working, and I can prove that to you, like - - -
Don't worry about that. So your recollection is you did mention the car crash to her?---Yes, yes.
Was there anybody other than you and Dr Ng there that day of that consultation?---Yes. That was my de facto wife Erica."
19 I digress to note that Mr Hodi's de facto wife, Erica Pupp gave evidence, which was not challenged in cross-examination, that she had
(Page 6)
- accompanied Mr Hodi when he saw Dr Mei "a couple of days after the accident". Ms Pupp's evidence was that Mr Hodi told Dr Mei:
" … he had a car accident a couple of days earlier and he's got a constant headache." (AB 94)
21 I return to Mr Hodi's evidence. It was put to him that he had seen Dr Ng on 20 and 27 July and 10 August, and that Dr Ng had made no note of Mr Hodi complaining about the accident or any symptoms arising from it.
22 Counsel was again mistaken about the identity of the doctors consulted by Mr Hodi on those dates. In fact, as subsequent evidence revealed, Mr Hodi saw Dr Mei on 20 July, Dr Ng on 27 July and Dr Mei on 10 August. However, nothing turns on that, because Mr Hodi said he told Dr Mei about the accident, but not Dr Ng. Mr Hodi said he was "under the impression" Dr Ng knew about the accident because he had told Dr Mei about it.
23 Mr Hodi was asked about his post accident symptoms as follows:
"Over that period, which is late July early August, the period of those three visits, what symptoms were you suffering?---Basically, the same symptoms than after the crash but I wouldn't say that was a – except the headache. The headache was a pain but the rest I would say discomfort.
Discomfort where?---In my neck and the jaw, you know. It was hard to move it and always when I chew, you know, I feel the pain in my ears. My ear was bleeding. So I was concerned only about, you know, my blood pressure in this time. I was very casual about the accident, you know. I thought, 'That will go away just like in previous times.'" (AB 38)
24 When Dr Mei gave evidence, she was asked about her consultation with Mr Hodi on 10 July. This was an error. As I have noted, the actual date was 20 July. But again, nothing turns on it because Dr Mei said she
(Page 7)
- had no recollection of the consultation and relied solely on her notes (AB 80-81).
25 Although Mr Hodi said in his evidence that he had told Dr Mei about the accident, there was no mention of it in her notes. Counsel asked Dr Mei if something said by Mr Hodi could have gone undocumented. Dr Mei said she might not record incidental personal information. The following exchange then took place:
"What about something like, 'I've been involved in a car crash,' Would that get documented?---It would, simply because, from my point of view I get more money because I fill in the MVIT, so I would set up an MVIT file, so I definitely would have documented that."
26 Mr Hodi consulted Dr Mei again on 10 August. She then noted:
"'He thinks the dizziness might be due to the cold draught when driving with his windows open and wants to try cotton balls in his ears.' I advised him – I said I would see him in 3 weeks and if he hadn't improved with the cotton balls that I would refer him to an ENT specialist."'
27 That concluded Dr Mei's evidence. She was not cross-examined.
28 Dr Ng's evidence was that he had seen Mr Hodi on 27 July. He made a note. It read:
"Still dizzy, especially at bed time and there's pressure in the ears."
29 Dr Ng said he did not recall Mr Hodi complaining of any other symptoms: and he was not aware that Mr Hodi had been involved in a motor vehicle accident (AB 73).
30 Dr Ng said he saw Mr Hodi again on 18 November. His note of that consultation recorded that Mr Hodi complained of "neck pain the last 2 months". Dr Ng's evidence was as follows:
"He told me he had a motor vehicle accident on 4 July 98. I examined him, the neck was non-tender, the movements were full, so I diagnosed as a whiplash injury. I prescribed some Feldene anti-inflammatory tablets, sent him for some x-rays. Blood pressure on that day 125/85, fairly normal.
(Page 8)
- Was that the first time that you had been made aware of the motor vehicle accident?---Correct.
Was there any attempt by him to relate the symptoms that he complained of with that accident or was it disconnected, these complaints of pain to the - - -?---He complained mainly about the accident." (AB 74)
31 Dr Ng then produced a series of medical reports he had submitted to Mr Hodi's solicitors. In a report dated 8 July 1999, Dr Ng referred to the consultations from 2 July 1998 onwards. There were fifteen consultations from and including that on 2 July 1998: and there were nine following the consultation on 18 November 1998 when, according to Dr Ng, Mr Hodi first mentioned the motor vehicle accident. This was one month before the second accident.
32 In each of those later consultations Mr Hodi complained of neck pain. Dr Ng reported:
"When last seen on 7/7/99, he complained of headaches, neck pain, pain in the arms and forearms. Has numbness and cold feeling in the left thigh, and swollen hand and wrist after driving his taxi for a few hours."
33 Then, after setting out Mr Hodi's medication, Dr Ng said:
"In my opinion, his neck pain is due to the motor vehicle accident." (AB 149)
34 Dr Ng referred Mr Hodi to Mr Barrie Stephen Slinger, a spinal surgeon, and Mr Nickolay James Batalin, an orthopaedic surgeon, both of whom gave evidence.
35 Mr Hodi consulted Mr Slinger on 12 February 1999. He wrote a report dated 11 May 1999, addressed to the Insurance Commission of WA. In his report, Mr Slinger said Mr Hodi had noted a headache immediately after the accident of 4 July 1998, "and subsequently some discomfort in his neck" (AB 175). Under the heading "Progress", Mr Slinger noted:
"Thereafter he did not wish to complain about the symptoms but did notice gradual increasing discomfort …" (AB 176)"
36 Mr Slinger gave evidence on behalf of Mr Hodi. He said that the headache experienced by Mr Hodi immediately after the accident on
(Page 9)
- 4 July 1998 was consistent with an injury to the cervical spine. Under cross-examination Mr Slinger confirmed that Mr Hodi told him he had not made any complaint about his symptoms.
37 Mr Batalin gave evidence on behalf of the defendants (the present respondents). He had examined Mr Hodi on 17 December 1998, albeit on the referral by Dr Ng. He reported to the Insurance Commission on 4 May 1999 (AB 218).
38 In his report, Mr Batalin noted Mr Hodi told him he had started noticing neck pain "two months prior to seeing me". That would have been in October 1998, some three months after the accident.
39 Mr Batalin's provisional diagnosis, based on recent x-rays, was that Mr Hodi had long-standing degenerative changes at the C5-6 and C6-7 levels of his cervical spine:
" … the onset of his principal symptoms did not coincide with the accident." (AB 219)
40 In his evidence-in-chief, Mr Batalin said:
" … probably more than other specialists in this town I would have seen more spinal injuries, neck injuries, motor vehicle accident related injuries including serious injuries. Based on that experience the only frequent conclusion is that symptoms collate with injury and they occur within a short time after the incident. It's unusual, in my experience, to get symptoms which occur months after the incident if there's a cause in relationship and often if that is the case, one looks for other reasons such as degenerative changes." (AB 133)
41 Mr Batalin went on to say that there was a very significant difference between what he described as the direct and indirect methods of assessment of Mr Hodi's neck and spinal movements. Based on his experience over many years, such a difference Mr Batalin said "suggests maximisation of symptoms" (AB 134).
42 Mr Batalin was cross-examined by counsel for Mr Hodi. In the course of the appeal, Mr Hodi complained about this aspect of the trial. First, he told the Court that before Mr Batalin gave evidence, his solicitor said:
(Page 10)
- "We have to go easy on Batalin because he's a good friend of the judge." (TS 9)
43 Mr Hodi said this left him speechless. He said he had not hired him to go easy; and "he never did anything". I assume this to be a reference to Mr Hodi's counsel.
44 The second complaint is that, according to Mr Hodi, he had learned that Mr Batalin was suffering from Alzheimer's disease, this calling into question his fitness to give evidence.
45 As to the first complaint; having regard to the cross-examination of Mr Batalin (AB 136-147) I do not think it could be said that Mr Hodi's counsel "never did anything". Counsel challenged Mr Batalin's crucial evidence that because Mr Hodi had not complained about neck pain until some time after the accident, the pain was unlikely to have been caused by the accident. The cross-examination proceeded as follows:
"Is it a clinical indicator or a connection between a crash and headaches that the headaches came on temporarily with the crash in the usual course of clinical practice?---In the gamut of symptoms, if headache is one of them and if they come together with neck symptoms shortly after the accident, it's a supporting sign.
The history that Mr Hodi gave to you did not include any neck discomfort on the evening of the crash. Is that correct? I think that is the case. I think it was common cause?---He did give symptoms that we describe but they didn't coincide initially.
I'm talking about the night of the crash or shortly after?---Not to that effect, that's right.
If he did get those symptoms but for one reason or another didn't give them to you in the history, would that be a further supporting factor to link his ongoing symptoms that he has presented with from time to time of the crash?---It raised the question of reliability of the history.
Yes?---You see, if he gives one history to one person and another history to the other person, you wonder how reliable his memory is, etcetera, etcetera. So that raises the question but that answer would be that it would make me think twice about the reliability of the history.
(Page 11)
- Say if you had a sixth sense and you were able to determine that in fact he had suffered some – you determined one way or another that he had suffered some neck discomfort on the evening and had got a headache, would those factors be indicators to connect the ongoing symptoms with - - -?---I prefer not to use sixth sense. As a spinal surgeon - - -
I'm sure - - -?---Take history, see if it's reliable, examine - - -
WISBEY DCJ: Do we need – I mean, we are all allowed to use intelligence. If a person suddenly gets neck pain and headaches following an accident and they continue, it would be difficult to suggest that other than the accident had something to do with it.
PRATT, MR: I won't labour on that point then."
46 The comment made by the learned Judge may be interpreted as reflecting his view that if Mr Hodi had in fact started to experience pain in his neck following the accident, then the accident was likely to have been the cause. It was appropriate for counsel to cease that line of cross-examination, having made the point.
47 Mr Batalin's evidence that the neck pain was unlikely to have been caused by the accident was crucial, because it was evidence on which the Judge decided the case. Mr Batalin's view that Mr Hodi had maximised his symptoms was not crucial. It was challenged by Mr Hodi's counsel in cross-examination, but Mr Batalin maintained his view. However, in the end, nothing turned on it. The Judge referred to that matter in his summary of Mr Batalin's evidence, but made no finding of fact in relation to it.
48 So far as Mr Hodi's second complaint is concerned, I see nothing in the transcript of Mr Batalin's evidence to suggest that he was suffering from any loss of his mental faculties. It is true that he had no independent recollection of Mr Hodi, but that is not surprising, given the time interval and the nature of his practice. Generally, Mr Batalin's answers to questions were responsive and clear. He had a good recollection of the contents of the various reports he had produced.
49 The findings of fact made by the Judge in relation to the first accident were as follows:
(Page 12)
- "I accept the evidence of the general practitioners, Dr Ng and Dr Mei, that the plaintiff did not mention a motor vehicle accident or any cervical symptoms until 18 November 1998 when he complained of experiencing neck pain for two months. Accepting that to be the case, it places the onset of neck pain at mid-September 1998, some two months after the first accident. The plaintiff never mentioned to those practitioners the alleged jaw problem, or ear bleeding. As he was attending the practice for other reasons, and having regard to the claimed severity of the symptoms and their impact on his vocational life, it would be extraordinary for the plaintiff not to have addressed them. I reject the evidence of the plaintiff and his partner that he mentioned the first accident to Dr Mei within days of ITS happening. I note that the plaintiff told Mr Batalin that he did not begin to experience neck symptoms until several months prior to his first consultation with Mr Batalin. The necessary conclusion is that the plaintiff did not experience symptoms for several months at least after the accident.
The burden of the medical evidence is that on the basis that the symptoms did not present for several months after the first accident it is unlikely that they were a consequence thereof.
I accept the evidence of Professor Hollingworth and Dr Rosen that the plaintiff's symptoms (such as they are) were most likely the product of chronic degenerative cervical spine disease.
The plaintiff has failed to establish that he sustained any injuries, loss or damage in the first accident." (par 66) (my emphasis)
50 As is clear from the paragraph above which I have italicised, the reason for the failure of Mr Hodi's claim arising from the first accident was the finding that the symptoms of which he complained did not emerge until several months after that accident. That being so, the conflict in the evidence between Mr Hodi and Ms Pupp on the one hand, and Dr Mei on the other – about whether Mr Hodi told her about the accident – is of little, if any, significance. It is true that the Judge found Mr Hodi had not told Dr Ng about the accident until 18 November 1998. However, the crucial question was not when he or Dr Mei were told about the accident. It was when Mr Hodi first experienced the neck pain.
(Page 13)
51 As to that, it will be recalled that Mr Hodi himself said he was not sure if he mentioned those symptoms to Dr Mei. His attitude was to keep working, in the hope that the pain would cease. He told Mr Slinger he had not wished to complain: and he told Dr Ng on 18 November that he had a neck pain "for the last two months". However, the Judge was of the view that if the symptoms were as severe as Mr Hodi claimed, he would have mentioned them earlier than he did. Hence the conclusion, on the balance of possibilities, that the symptoms did not emerge until some time after the first accident. That, in substance, is what Mr Hodi told Mr Batalin and Dr Ng. The accident was not causative, therefore.
52 Being satisfied that there is no substance to the complaints made by Mr Hodi at the hearing of the appeal, I turn to the single ground in the Notice of Appeal. It is in the following terms:
"The learned trial Judge erred in law by failing to give any adequate and/or any proper reason/reasons for 'the necessary conclusion [is] that the Appellant (Plaintiff) did not experience symptoms for several months at least after the accident' (see paragraph 66 of the reasons for decision), thereby depriving the Appellant (Plaintiff) of his right to assess whether or not the learned trial Judge erred, in law, in his reasoning and therefore deprived the Appellant (Plaintiff) of his right to assess whether or not to appeal the trial Judge's findings.
Particulars
- The trial Judge did not give any reason/s, if and why, he rejected the Appellant's (Plaintiff's):
(i) direct; and
(ii) corroborating evidence
concerning and touching upon the onset of his symptoms following the accident on 4 July 1998.
Such evidence comprised the evidence of the appellant (plaintiff), Eric Rupp (sic Erica Pupp), James Kenneth Riordan and Barry Stephen Slinger."
(Page 14)
- the first accident, but he stopped doing so within a day or so after the accident (AB 94, 96).
54 James Kenneth Riordan was the owner of the taxi Mr Hodi had been driving when the first accident happened. Mr Riordan gave evidence about damage to the vehicle as a result of that accident. He gave no evidence about Mr Hodi's medical condition (AB 87-88).
55 I have referred above to Mr Slinger's evidence in which he said Mr Hodi told him he had not complained to anyone about his symptoms following the first accident. That evidence does not corroborate Mr Hodi's evidence: it is the recitation of a self-serving statement made by Mr Hodi himself.
56 The reason for the Judge's conclusion that Mr Hodi did not experience neck symptoms for several months after the first accident, is, I think, plain. There was only Mr Hodi's evidence that he had suffered those symptoms. There was no corroborating evidence: and the evidence was inconsistent with the account he gave to Mr Batalin and Dr Ng.
57 Given that Mr Hodi's principal occupation at the time was taxi driving, the Judge was of the view that if Mr Hodi's symptoms were as serous as he claimed it would have been extraordinary if he had not addressed them. That being so, it was open to the Judge to conclude, on the balance of possibilities that Mr Hodi's symptoms were not caused by the accident. That was "the necessary conclusion" to which his Honour referred.
58 Having reviewed the evidence presented at the trial, I am not persuaded that the Judge was wrong to reach that conclusion. I would therefore dismiss the appeal.
59 MCLURE J: I have had the advantage of reading the judgment to be delivered by Templeman J. I agree with it and with his conclusion that the appeal should be dismissed.
3
1