Werner v Krahe

[2002] NSWCA 168

CITATION:	Werner v Krahe [2002] NSWCA 168
FILE NUMBER(S):	CA 40708/01
HEARING DATE(S):	06/06/02
JUDGMENT DATE:	14 June 2002
PARTIES :	Ivan WERNER v Leanne Maree KRAHE
JUDGMENT OF:	Hodgson JA at 1; Foster AJA at 2-33

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 3/99
LOWER COURT JUDICIAL OFFICER :	Twigg J

COUNSEL:	Mr C. Hoeben, C with P. Gormly - Appellant Mr M.B. Williams with T. Bland - Respondent
SOLICITORS:	Curwood & Associates - Appellant Long Howland Houston - Respondent
CATCHWORDS:	Appeal and cross-appeal in relation to damages recovered for injuries received.
LEGISLATION CITED:	Motor Accidents Act 1988
DECISION:	1. The appeal be allowed in part; 2. The cross-appeal be allowed in part; 3. The judgment of the Court below be set aside; 4. There be substituted judgment for the respondent in the sum of $441,000.00; 5. The appellant to pay the respondent's costs of the appeal and cross-appeal; 6. The appellant to pay the respondent's costs of the Court below.

CA 40708/01
DC 3/99
HODGSON JA
FOSTER AJA

FRIDAY, 14 JUNE, 2002

Ivan WERNER v Leanne Maree KRAHE

Judgment

1 HODGSON JA: I agree with Foster AJA.

2 FOSTER AJA: The Court has before it an appeal and cross-appeal from a decision of his Honour Judge Twigg QC, given in the District Court in Armidale on 22 August, 2001. The present respondent, Mrs Krahe, had sued the present appellant, Mr Werner, to recover damages for injuries, disabilities and consequent financial loss, suffered by her as the result of a motor vehicle accident occurring in Armidale on 13 January 1996. Liability having been admitted, his Honour was required to assess the damages payable to Mrs Krahe.

3 His Honour entered a verdict for Mrs Krahe in the sum of $428,500.00 made up as follows:-

Non-economic loss $ 99,500.00


Past out-of-pocket expenses $ 31,000.00

Future out-of-pocket expenses $ 10,000.00

Past economic loss $ 18,000.00

Future economic loss $ 50,000.00

Past Griffiths v Kerkemeyer $ 70,000.00

Future Griffiths v Kerkemeyer $150,000.00

4 In the appeal, the appellant challenges the awards for non-economic loss, past out-of-pocket expenses, past Griffiths v Kerkemeyer and future Griffiths v Kerkemeyer. The respondent challenges the awards for past and future economic loss.

5 Before considering these challenges, it is convenient to set out some matters by way of background.

6 Mrs Krahe was born on 14 March 1963. She was nearly 26 at the time of the accident and 33 at the time of the hearing. She left school in 1985 after obtaining her Higher School Certificate and then undertook a Bachelor of Arts degree, in 1986, at the University of New England. Whilst studying she was employed as a tutor in psychology. She graduated in 1989 and, in 1990 became employed as a teacher at St. John’s College in Dubbo. Whilst so employed she obtained, by correspondence, her Diploma of Education.

7 In September 1991 she married her present husband. The two of them travelled overseas until 1993, when they returned to Australia. She worked as a casual teacher whilst overseas. She returned to teaching at Dubbo in 1993. In the same year her daughter was born. Thereafter, the family returned to Armidale in late 1994.

8 After returning to Armidale Mrs Krahe obtained employment as a marker of examinations and assignments for the Geography Department of the University of New England. She also worked as a casual teacher at the Duval High School in Armidale, where her husband worked as a physical education teacher.

9 In 1995 she commenced an Honours year in her Batchelor of Arts degree, her intention being to proceed to the obtaining of a PhD in the field of Human Geography.

10 The motor vehicle accident occurred at an intersection in Armidale, when the vehicle in which Mrs Krahe was travelling was struck violently by the appellant’s vehicle. She was flung about within the vehicle by the force of the impact. She suffered considerable jerking of her neck and shoulders. This resulted in a whiplash injury to the soft tissue in those areas.

11 As a result of her injuries, Mrs Krahe was unable to complete her Honours degree in 1996. She completed it in 1997 and was awarded a scholarship enabling her to read for her PhD in 1997. The continuance of the scholarship required that she complete her doctorate within three years. However, her disabilities prevented her from doing this, with the result that the scholarship lapsed at the commencement of 2001. At the time of trial, it was her intention, nevertheless, to complete her doctorate and seek career opportunities resulting from its acquisition.

12 The medical evidence establishes that whiplash injuries to the neck, generally speaking, resolve and become symptom free with the passage of time, some quickly and some more slowly. Some lead to chronic pain and disability. There are marked differences in the severity and duration of pain occasioned by such injuries. It was the respondent’s case that she was severely and chronically affected by pain in the neck and shoulder areas, which had come on shortly after the accident and had not responded by time of trial to the very large variety of treatments which the medical profession had offered her and which she had undergone. The pain was constant and disabling. It prevented her from carrying out many domestic tasks, particularly those which involved her in forward movement of her neck or the raising of her arms. She had become dependent upon her husband for assistance in her ordinary living and in the care of their child. Her condition over the years since the accident had necessitated, for practical purposes, his taking over all the major household chores.

13 Although there was a credibility issue in the case his Honour, as appears from his judgment, unreservedly accepted the respondent’s evidence and that of her husband. The very large number of medical reports and reports of physiotherapists, chiropractors, pain clinicians and similar professionals that were tendered, indicated, in themselves, the range of treatment which had been sought by and offered to her in the years to the trial. No doctor was called as a witness, in accordance with current procedures in the District Court. His Honour accepted the medical evidence of the plaintiff and rejected that of the defendant, a course which was clearly open to him.

14 Accordingly, it was accepted by his Honour, and not challenged in this appeal, that Mrs Krahe was, at date of trial, significantly disabled by the painful consequences of the whiplash injury and that this constituted a major problem for her in her ordinary life and in relation to her studies and future employment prospects.

15 However, there was a complicating factor. During 1998 Mrs Krahe began to develop other symptoms which, in 2000, were finally diagnosed as being caused by the development of the condition of multiple sclerosis (M/S). It was accepted that this condition was not caused or exacerbated by the accident. It was, therefore, a concurrent source of pain and disability for Mrs Krahe for which the defendant bore no responsibility.

16 It was necessary, accordingly, for his Honour, in approaching the assessment of damages, to distinguish between the effects upon the plaintiff of the on-going whiplash injury and the effects of her M/S condition. It is the main thrust of the appellant’s case, in this appeal, that his Honour failed to attribute sufficient significance to the past and future effects of the M/S upon the plaintiff’s situation.

17 In this area his Honour would, no doubt, have been assisted by oral evidence from medical practitioners. Indeed, it is not clear from his Honour’s judgment which symptoms and complaints of the respondent were attributed to the multiple sclerosis condition as opposed to the whiplash injury. However, the reports of the specialists, Dr Lance, Dr Carmody, Dr Hughes, Dr Gordon and Dr Holland enable a quite clear distinction to be made in this regard. It is reasonable to assume that his Honour had this distinction in mind, though he does not expressly refer to it. It is accepted that when the plaintiff began to experience unpleasant and disabling symptoms in her right arm and hand, in 1998, these were attributable to the on-set of M/S. Other symptoms that, thereafter, appeared on the left side of her body, being clumsiness in the left arm and left leg, tingling sensations in those areas and sensory disturbance in her left hand, together with some fatigue and lack of concentration, were also attributable to that cause. The results of the whiplash injury, severe though they were, were restricted to the respondent’s neck, head and shoulders, together with some related postural consequences of her lack of mobility in those areas, being low back pain and tennis elbow in the right arm.

18 Once diagnosed, the M/S condition was treated, with the result that, at time of trial, it was in remission but the evidence as to its future course was sparse. It was sufficient, however, to indicate that there was a possibility of the respondent suffering future disabling consequences from this cause. The fact that her current treatment was proving successful was, of course, an important consideration for the trial judge.

19 As to the effects of the M/S on her future study and career plans, the respondent gave evidence indicating her awareness of the potential problems but also indicating her firm intention and belief that, notwithstanding them, she would be able to go ahead with those plans. There is nothing in the case to indicate that this was a totally unrealistic assessment on her part. A reading of the evidence in the case, coupled with his Honour’s finding of the total reliability of the plaintiff as a witness, indicates, clearly enough, that at date of trial the respondent’s main source of disability was the constant severe pain in and lack of ordinary function of neck, shoulders and arms occasioned by the on-going effects of her whiplash injury.

20 Against this background, I turn to consider the submissions made in the appeal and cross-appeal.

21 The Appeal

Past out-of-pocket expenses

Although an attack was, originally, made upon a significant portion of these expenses upon the basis that they were related to M/S rather than the accident, in the ultimate, the attack was confined to one item only, namely the purchase of a voice operated computer. I am satisfied that the evidence demonstrated a perceived need on the part of the respondent for this machine, insofar as it was considered that it would help to alleviate neck pain occasioned by the use of an ordinary computer screen. The fact that its use was subsequently abandoned by the respondent does not, in my view, indicate that its original acquisition was, in the circumstances, unreasonable.

22 Accordingly, this aspect of the appeal fails.

23 Non-economic loss

His Honour awarded $99,500.00 on the basis that he assessed this loss as being 35% of a most serious case. It is the appellant’s contention that this involved appellable error, insofar as no more than 25% could be appropriate. I disagree. The plaintiff’s level of suffering in the past and the prospect of its continuing indefinitely into the future, as found by his Honour, together with its effect upon her life inside and outside her home is such as to indicate that his Honour’s award did not fall outside the ambit of a proper exercise of discretion.

24 I reject this aspect of the appeal.

25 Past Griffiths v Kerkemeyer

His Honour accepted a calculation proffered by the respondent, resulting in an award of $70,000.00. In doing so he reduced the period of 4.8 years, from date of accident to date of trial, to 3 years, apparently taking into account periods of incapacity suffered by the respondent from causes other than the accident. Although it is not clear, I am prepared to assume that he selected the period of 1.8 years as representing periods when she would have needed the gratuitous services of her husband because of her inability to care for herself during periods occasioned by her having an arthroscopy and a hysterectomy. His Honour allowed four hours domestic services per day for the remaining period of three years. The allowance of four hours per day has been attacked as being excessive. The evidence clearly establishes that during the period from accident to trial, the consequences of the whiplash injury were most severe with no sign of the remission in their severity which had been anticipated by a number of the medical practitioners who had attended or advised her.

26 I consider that the allowance of four hours domestic services per day, although high, does not demonstrate appellable error. Accordingly, I reject this aspect of the appeal.

27 Future Griffiths v Kerkemeyer

His Honour was confronted with a large array of medical reports and opinions in relation to the prognosis regarding the respondent’s whiplash injury. Clearly he rejected the opinion of the defendant’s medical experts that the effect of the whiplash had resolved within a relatively short time after the accident. However, there was ground for some optimism as to the future, although there was no indication that any sudden or speedy resolution of the plaintiff’s problems was likely to occur. Also, so far as the future was concerned, his Honour had the problem of evaluating the extent to which any future need for domestic services might be occasioned by problems relating to the respondent’s multiple sclerosis condition in conjunction with the continuing but diminishing disability from the whiplash. His Honour allowed the respondent’s submitted calculation which was based upon the same postulated requirement of four hours per day domestic services. Clearly, precision is impossible in this area. The question is one, largely, of impression. I have come to the conclusion that the allowance of four hours daily care is, in the circumstances, excessive, even though a large discount has been applied in the making of the calculation. I consider that the daily hours should be reduced to three with the result that the figure of $150,000.00 allowed under this heading should be reduced to $112,500.00.

28 The cross-appeal

Past economic loss

At the trial the respondent claimed $20,000.00. The appellant asserted that the proper award should be $15,000.00. His Honour awarded $18,000.00. I can see no reasonable basis upon which this award should be altered.

29 Future economic loss

Under this heading his Honour awarded a cushion or buffer of $50,000.00 as against the respondent’s claim for an award of $100,000.00. With respect, I feel that this award reflects a far too optimistic view of the respondent’s future earning capacity, having regard to the very serious nature of her disabilities resulting from the accident. Had it not been for the accident, it is reasonable to suppose that the respondent would have completed her Doctorate of Philosophy and, having regard to her high academic achievements, entered the workforce at least one year earlier than she might otherwise be able to do because of her accident caused disabilities. As the multiple sclerosis was in remission and, apparently, under successful medical control, there was no reason to regard that as any impediment to her commencement of work. The loss of that year’s work, in itself, cost the respondent almost as much as the “ buffer ” allowed by his Honour. In my opinion, having regard to the only mildly optimistic prognosis, available on the evidence, the amount of $100,000.00 sought by the respondent was, in all the circumstances, most reasonable and should have been awarded.

30 In my opinion, the cross-appeal should be allowed and the amount of $50,000.00 awarded under this head, be increased to $100,000.00.

31 The result

Having regard to these adjustments in the awards made by his Honour the amount of damages that should be received by the plaintiff is $441,000.00

32 As, in the overall result, the respondent has succeeded in increasing the sum awarded, I consider that she should receive the costs of the appeal and cross-appeal.

33 Consequently, I propose the following orders:

1. The appeal be allowed in part.

2. The cross-appeal be allowed in part.

3. The judgment of the Court below be set aside.

4. There be substituted judgment for the respondent in the sum of $441,000.00.

5. The appellant to pay the respondent’s costs of the appeal and cross-appeal.

6. The appellant to pay the respondent's costs of the Court below.

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