Williams v Dawson - [1999] WADC 74

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WILLIAMS -v- DAWSON [1999] WADC 74

CORAM: HEALY DCJ

HEARD: 10-12 MAY 1999

DELIVERED : 21 SEPTEMBER 1999

FILE NO/S: CIV 930 of 1998

BETWEEN: PHILIP JOHN WILLIAMS
Plaintiff
AND
MELVYN DOUGLAS DAWSON
Defendant

Catchwords:

Damages personal injury 57 year old self-employed chiropractor - Claim for loss of earning capacity and loss on sale of practice.

Legislation:

Nil

Result:

Damages awarded of $74,738

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr P R Momber

Solicitors:

Plaintiff: Butcher Paull & Calder
Defendant: Peter Momber

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

HEALY DCJ: This matter comes before the court for determination of the amount of damages to be awarded to the plaintiff as a result of injuries he received in a motor vehicle accident which occurred on 28 December 1996. The defendant admits liability for that accident. At the time the plaintiff was aged 55 years and was a chiropractor.
Mr Williams alleges that in the accident he sustained:
“(a)       a graze to the left anterior chest wall;
(b)      fracture of the left tenth and eleventh ribs;
(c)       lumbosacral and cervical ligamentous strain;
(d)      bruising around the left lower rib region;
(e)       a whiplash injury to the neck and back; and
(f)       fracturing of two teeth.”
The main dispute is as to Mr Williams’ loss of earning capacity. He claims that he is unable to return to work as a chiropractor and that he sold his practice at a loss. The defendant does not accept that he is as incapacitated as he says he is. Because of this there is also a dispute about the amount of general damages to which he is entitled, his counsel claiming that he should receive 20 per cent of the maximum amount which can be awarded in a most extreme case, the defendant claiming that the percentage should be between 5 and 10 per cent.

Accident

Mr Williams was on holidays at his beach house near Dunsborough. He was the back seat passenger in a “fairly new Ford” which was struck when the defendant drove his Torana through a stop sign. I was not told what model the Ford was. The Torana hit the rear passenger’s side of the Ford and Mr Williams was thrown across the back seat. The door on his side was caved in and he had to exit through the other rear door.
He felt pain in his rib cage and was taken to a local general practitioner, who diagnosed fractured ribs. Mr Williams did not take the pain killers he was prescribed, preferring to know what his symptoms were. He had to take some muscle relaxant to relieve a spasm and spent most of the next few days in bed laying on his back. He had some chiropractic treatment in Busselton.
His wife drove him to their home in City Beach. He had restricted neck movement and his back was stiff. His main difficulty was pain and lack of movement associated with his fractured ribs. He said that when he lay down he felt a pulse at the back of his neck. He consulted his partner, Mr Heglund, who manipulated his neck to ease the symptoms. He organised a locum to take his place in the chiropractic practice and decided to rest while his symptoms improved. The ribs gradually healed and he went back to work at the beginning of March.
On returning to work he said that he had a headache most of the time. He had ringing in his ears which would worsen as the day went by. His back was stiff and he found it difficult to manipulate patients. On occasions he felt dizzy and almost fell, having to hold the table for support. Photographs were tendered as Exhibits 1-7 as to the normal and somewhat awkward positions a chiropractor might have to adopt to treat his or her patients.
Mr Williams arranged for the locum to continue for six months in order to find out whether the symptoms would alleviate over time. They did not and he arranged a further six months off. During that time he sought chiropractic treatment from a friend who was a chiropractor practising near Cairns and went to the United States where he sought treatment from another friend who was a chiropractor in San Diego. These treatments did not relieve his symptoms. His partner has continued regularly to manipulate his back. Mr Williams said that these manipulations brought him only temporary relief.
In September 1997 while resting his foot on a bench in the backyard, he lost balance through dizziness and fell into a brick wall, dislocating his left shoulder. He saw a local GP who sent him on to Queen Elizabeth II Medical Centre where the dislocation was reduced without any complications. In 1998 while cleaning the swimming pool, he bent down to pick up something and had a dizzy spell. He fell and fractured the second sacral segment which caused some localised swelling. He did not seek any treatment.
He was unable to return to work at the end of 1997 at that time and realised that he would not be able to return to work. He tried to sell his share of the practice to the then locum but was unsuccessful. He then approached two other chiropractors but neither of them wanted to buy his share. He then sold his share of the goodwill and equipment to his partner for $20,000. He still retained the real estate and receives rent which is offset against the mortgage payments for the property.
Prior to the accident he was a regular tennis player at the City Beach Tennis Club and on his court at North Yunderup and used to jog along the sand from City Beach to North Cottesloe and back four times a week. When he went to his beach houses he went fishing and crabbing in his small runabouts. He has ceased the tennis and jogging and has only been fishing recently. He had to cease tennis and jogging because those activities made him uncomfortable.
Mr Williams described his current symptoms at T26-28:
“I wake up most days with a headache for a start. I haven’t slept a full night since the accident and I wake up two or three times during the night. The headache: I try to push it behind and I try to get on and do things. I walk the dog first thing in the morning as briskly as I can. My back is stiff when I get out of bed in the morning. Again, I walk. Walking does sometimes ease the symptoms; sometimes it does not. I also walk on the beach. I have tried jogging a little bit, very, very lightly and I can do a little bit for a period of time and I’m not restricted in general movements around the place but if I try and do more or do an excessive amount, well, then I feel the stiffness in the neck; the headache will develop. I have had less of the severe dizziness but I’m still getting some light headedness. When I’m sitting for any length of time, getting up I’m often light headed. When I lie down in bed first thing at night I get this pulse in the back of my neck. I can turn my head - contort my neck in a position that it stops but normally it’s there. If I’m uptight, run upstairs or move upstairs quickly, something like that, I get the same pulse.”
He said that he avoids taking medication, though he agreed he could probably get relief if he took it on occasions. When he has taken medication he has found that though it may relieve the symptoms, it does not change the underlying cause of those symptoms. To relieve the pain he has his neck adjusted by Mr Heglund. He said he never goes more than two weeks without having such adjustments.
I was shown a representative sample of surveillance videos taken in January and November last year and in April this year. These show Mr Williams walking his dog at a brisk pace for more than a few minutes, from the time clock on the video on occasions at least 20 minutes, turning his head apparently without discomfort to check for traffic before crossing the road, bending down to pick up items from the footpath, and his paper from the lawn, bending his knees to do this, getting into and out of his car and driving it.
Mrs Williams described her husband before the accident as being “annoyingly fit”, T103. She never heard him complain of a headache. He was in rude health and had an active social life involving their extended family and the City Beach Tennis Club. They entertained friends at their beach houses at North Yunderup and Quindalup. He was a competitive tennis player. He enjoyed fishing and crabbing. Together they had renovated their beach houses. She said that her husband was a competent renovator, not only doing up the beach houses but also fitting out the house in which he ran his practice. Over the years they had renovated over 40 properties to varying degrees.
After the accident she provided assistance whilst he was immobile because of his fractured ribs. She said that he complained of dizziness. When they went out to dinner and someone dropped a serviette, he would bend down quickly to pick it up, then he would just sit with his hands over his face for 5 or 10 minutes.
After she went to London to visit her daughter she did not return to the home at City Beach but went to live in the North Yunderup house. She said that she thought that the break in London may have assisted their relationship, but it did not. Mr Williams and she were still “more than a bit titchety with each other” and she decided to move out. More recently she has moved into a unit purchased in her name in Scarborough.
Dr Pitman, whose doctorate is in engineering, gave evidence. He is a friend of Mr Williams of long-standing. Prior to the accident he had regularly mixed socially with him at and out of the City Beach Tennis Club and been a guest at his beach houses. Since the accident Mr Williams has not played tennis at the Club and has only gone there at Dr Pitman’s invitation, as Dr Pitman said, in an attempt to “get him out a bit”. Now he found Mr Williams more withdrawn and it was difficult to extract information from him. Mr Williams had told him he could not work as a chiropractor, T101.
Mr Heglund said that before the accident Mr Williams appeared to be in “perpetual motion” and accomplished far more in a day than he would. When Mr Williams returned to work after the accident he was a different person. He seemed to be tired. Mr Heglund said at T113:
“[That] would not be anything out of the ordinary for somebody returning after an injury. It usually takes a little bit of time to get going; but then as time progressed, there would be times when I would walk in to his office or walk by his office and he would be very, very much unlike him. He would be sitting there sometimes just staring, like in a daze. That is definitely not like him.
What was he like pre accident?---Perpetual motion. He would probably accomplish about 10 times in one day what I would. He’s just that sort of person that would be on the go all the time, just doing something, on phone calls and seeing patients, a lot of patients; but there would be times I would walk in and he would just have his head in his hands.”
That was in contrast to the period before the accident when Mr Williams hardly had a day off, if any, and saw more patients than Mr Heglund.

Medical evidence

It was accepted by all medical witnesses that their diagnoses were totally dependent on the history and complaints of pain related by Mr Williams. None of them professed any ability to measure pain or the level of pain independently of what they were told by their patients. Thus their opinions are only as valid as their patients are credible and accurately relate their symptoms.
Some reports were tendered as a matter of completeness and need no comment. I refer to the reports of the chiropractor in Busselton Mr Scott, Exhibit 25. That report by itself means little to me without further explanation; the radiologist Dr Patel, Exhibit 22; Dr Latto who saw Mr Williams once in September 1997, when he dislocated his shoulder after the fall referred to above, and whom he sent to Queen Elizabeth II Medical Centre; and Dr Wilkes who reduced the dislocation, Exhibits 23 and 24.
I note that in the material put before me there were names of other medical practitioners mentioned who did not give evidence, Dr McCartney, psychiatrist, Mr Whyte, psychologist, Dr Ainsley, Dr Swartz. I mention this for completeness sake, it was not submitted that I should draw any adverse inference from the fact that they were not called.
I will now deal as best I can in chronological order with the evidence of the chiropractors or medical practitioners called on behalf of Mr Williams, or whose reports were tendered without objection.

Dr Hamdorf

Dr Hamdorf was the first practitioner to see Mr Williams after the accident. His reports were tendered as Exhibit 20a‑d. He was called to the house on the day of the accident and first saw him in his surgery on 31 December. In response to a question by the injurer as to the exact nature of the injuries sustained he wrote “Graze to left anterior chest wall, fracture of left 9th and 10th ribs, lumbosacral and cervical ligamentous strain”. He was asked “Your prognosis to include the likelihood of any permanent disability” to which he replied “It is not unlikely that there will be any permanent incapacity”, Exhibit 20c, however in his report dated 27 February to Mr Williams’ solicitors he writes “It is not likely that there will be any permanent incapacity”, Exhibit 20d. The rather clumsily expressed answer to the earlier answer was probably meant to reflect that opinion.

Mr Heglund

Mr Heglund studied to be a chiropractor at the same institution as Mr Williams. His three reports were tendered as Exhibit 10a‑c and he gave evidence.
He examined Mr Williams using various chiropractic equipment and tests and treated him by performing various manipulations. He first saw Mr Williams on 21 January and when examined Mr Heglund found “considerable restriction of normal cervical movements … left and right lateral flexion of the lumbar spine was also restricted as was forward flexion”. Mr Williams also reported a constant grating sensation in the upper cervical spine on all normal cervical movements. He said that on examination Mr Williams reported tenderness in the cervical, thoracic and lumbar region. His initial opinion was that there was a probable likelihood of permanent ligamentous weakness particularly in the upper cervical spine.
In Exhibit 10c he detailed further treatments and particularly an examination on 29 January 1999. In evidence he explained the meaning of some terms and the significance of some tests which were unfamiliar to me.
It was his opinion that the injuries were permanent and required on-going supportive care in order to minimise any further disability or degeneration. There was minimal likelihood of improvement and it was unlikely that Mr Williams would return to work as a chiropractor.
Mr Heglund took exception to Professor Hollingworth’s opinion that Mr Williams had dictated his treatment and wrote his reports and said that neither of those statements were correct. He did, however, agree in cross-examination that from time to time Mr Williams had suggested that he should adjust his spine in certain areas, T126.

Doctor Barr

Dr Barr is an experienced general practitioner with post graduate qualifications in occupational medicine and a senior lecturer in occupational medicine at Edith Cowan University. He is completing his Doctorate of Philosophy in occupational medicine.
Dr Barr is Mr Williams’ general practitioner and has been reviewing him on a monthly basis for the purpose of certifying unfitness to work. This is required by the insurer which issued the accident policy under which Mr Williams is entitled to receive income for a period of four years after the accident. Dr Barr conducts a physical examination on every third visit and for the remaining visits relies on Mr Williams’ statement that he is unfit for work. His reports were tendered as Exhibit 15a‑e.
Despite his qualifications in occupational medicine, Dr Barr has never been asked to assess what work Mr Williams could perform within the limits of his symptoms.
Dr Barr first examined Mr Williams on 13 March 1997. He found there was no evidence of any scoliosis but the spine was straight with excellent muscle symmetry and good muscle tone and there was no evidence of palpable muscle spasms. There was a full range of flexion and extension in the cervical spine, with some limitation in rotation and abduction. As to the lumbar spine, he was able to bend to the upper shin region with a secondary movement of left lumbar rotation, flexion and abduction. Dr Barr had been given the photographs, which have been tendered as Exhibit 1‑7 of positions a chiropractor needs to adopt to treat patients.
Dr Barr’s prognosis was that the lumbar spine would improve over the following six months, that the cervical spine and thoracic spine should significantly improve over the same period. That prognosis has not been fulfilled. Dr Barr said that 80 per cent of people who suffer soft tissue injuries recover within six to nine months. Of the remaining 20 per cent, some do not get better and some get worse, T174.
By August 1997 Dr Barr was of the view that “I consider Dr Williams’ return to work will be very slow”. In his final report before trial, Exhibit 15e, Dr Barr was of the opinion that:
“… there has been no change in the medical diagnosis in Mr Williams, nor on the impact that his injury has on his potential to return to his original profession. His physical limitations and professional disability remain unchanged.”
Dr Barr said that he found Professor Hollingworth’s opinion that Mr Williams was making the diagnosis, directing the treatment and involved in writing his reports a “very interesting observation”, T168. He said that he was the person making the diagnosis, directing the treatment and writing the reports and he justified the use of some terminology as being found in textbooks, see Exhibit 16.
In cross‑examination Dr Barr was asked what were the common features of soft tissue injuries like those suffered by Mr Williams. He listed the following features: localised pain and associated muscle tenderness and spasm; decrease in, both range of movements and extent of movement, and minimisation of movement in a certain direction, and the use of ‘trick’ manoeuvres to achieve a movement range; sometimes local dermatological sensation loss with nerve entrapment; occasionally a causalgia [sic] or brachiaglia where there is actually soft tissue impingement and swelling which is impinging on nerves giving long track nerve signs which can affect any area; in the cervical area impingement of various nerves such as the ansa cervicalis which is a conglomeration of C1 through to C3 which can give a whole range of symptomatology relating to hearing, balance; also the higher areas of the cervical spine, the impingement of the long tracks of the cranial nerves on the fifth nerve and the seventh nerve which can give various headaches and localised tendernesses; the role of myofascial syndromes causing decrease in movement of various muscles causing local concentrations of lactic acidosis.
Dr Barr was prepared to refer patients to chiropractors for treatment of back and neck pain, although he agreed that doctors also referred patients to physiotherapists. Dr Barr said that “we get better outcomes from chiropractics”, T181. He would be prepared to recommend that Mr Williams receive chiropractic manipulation indefinitely.
In my view it may be that Mr Williams receives some short term relief from such manipulation, but it is not reasonable that the defendant have to pay for such treatment indefinitely and no allowance for future treatment will be made in the assessment of damages. Indeed, it seems unreasonable to me that so much chiropractic treatment has been undertaken thus far.

Mr Sutherland

Mr Sutherland gave evidence, he is a dentist of long experience who had done bridge work on Mr Williams in 1987. Mr Williams did not see him until 9 February 1998, over a year after the accident. On examination he found that he had fractured two teeth on opposite sides of the lower jaw. I accept his opinion that “This type of damage is what one would be expected from a severe blow and so in all probability was caused by the accident as claimed”, T137. It was put to him that the damage could have been caused by biting on something hard, but he discounted that because the damage was not to opposing teeth. He said the mechanism which most likely caused the fractures was the jaw slamming shut on impact.

Being a racing driver himself and having fractured his own teeth in accidents, sometimes the flake not fracturing off for up to five years after the trauma, I accept his opinion. I note in passing that when he raced cars Mr Sutherland could be expected to have full harness, he still suffered the fractures. Despite this he is still working as a dental surgeon.
Although Mr Williams knew that flakes had come off the teeth when he spat them out after the accident, there was no sensitivity of the root as the teeth had been enervated. Thus there is nothing odd in failing to seek treatment for some time after the accident. I do, however, find it strange that he did not report to any doctor he saw after the accident that he had suffered damage to his teeth. From his own experience he knew the importance of giving a full history of injuries.
I accept that the bridge was damaged in the accident and needs replacement. No plans have been made for this work to be done. The current cost is $8,500, that will be discounted for present payment to $6,000. Mr Sutherland is also entitled to receive payment for the work he has done to date, a balance of $1,078.

Mr Billet

Mr Billet could not give evidence as he was interstate, but his report was tendered by consent. Mr Billet is an orthopaedic surgeon who was asked to review Mr Williams in April 1998. His very full report detailing the history given, the results of his examination and his findings was tendered as Exhibit 9. His physical findings did not differ significantly from those of Mr Anastas. In his opinion the accident “resulted in soft tissue injury to his lumbar spine and probably exacerbated the pre-existing degenerative changes” and “soft tissue injury to his neck, which has probably exacerbated the pre-existing degenerative changes and there has been a discal problem, noting that there is a suggestion of nerve root irritation in relation to the left side of his cervical spine”. Exhibit 9 at p6. In his opinion he was not physically fit to return to work as a chiropractor, ibid at p7.

Mr Stokes

As Mr Momber did not wish to cross-examine Mr Stokes, his report of 4 March 1999 was tendered without objection. Mr Stokes is an eminent neurosurgeon who saw Mr Williams on Dr Barr’s referral. Mr Stokes saw him twice, on 25 February and 4 March 1999. He took a history from Mr Williams and examined him. He suggested that MRI scans of the cervical and lumbar spine be done but was told “in an attempt to have an MRI scan of his cervical spine he developed a considerable burning feeling in his neck and asked for the investigation to be terminated”. I have no idea what such scan may have revealed. I note in Dr Barr’s report Exhibit 15e the reason for terminating the MRI was stated to be because Mr Williams suffered “severe claustrophobia”. This was not explored in cross-examination and I make no more of it than to note the discrepancy.
Mr Stokes recommended that he be seen by a neurologist because of the complaints of dizziness. No evidence was given of any such referral. Mr Stokes wrote “As regards his dizziness, I do feel it is important that he has an opinion from a neurologist and I would recommend that he is seen by one as soon as possible. The episode of true vertigo is of course of considerable concern but I believe it is related to acute cervical muscle spasm”. Earlier in the report he had written “… the dizziness has been associated apparently with true vertigo and on one occasion he fell and dislocated his left shoulder …”. Why Mr Stokes has used the adjective “true” to qualify “vertigo” is not immediately obvious to me.
He concluded by writing “Like many others who have seen him I do not think that he can safely return to his practice as a chiropractor. I believe that work is too intensive physically for him to continue in that”, Exhibit 21.
The defendant had Mr Williams examined by two specialists, Mr Anastas and Professor Hollingworth. I will now turn to their evidence.

Mr Anastas

Mr Anastas is an eminent orthopaedic surgeon of great experience. He examined Mr Williams on behalf of the defendant on 12 May 1997. He was also given the reports of Dr Barr and Dr Hamdorf which were available then. He took a history from Mr Williams and examined him. In his report he made no mention of having been told of fractures to the ribs. His prognosis was that he would be able to return to work. He wrote in Exhibit 12a at p4:
“With respect to prognosis the body does have a natural tendency to heal itself and one would expect his symptoms to gradually ease with time and eventually completely resolve.”
He could not see the point in persisting with manipulative therapy for “any more than a period of about six weeks”.
Mr Anastas reviewed him on 12 May and “felt that he was fit to engage in chiropractic work four hours a day, five days a week. I further felt that he was fit to graduate his hours at work whereby at the end of four weeks he would be working eight hours a day, five days a week”, Exhibit 12b.
He reviewed Mr Williams in December 1998 and at that time had available to him the reports of Dr Hamdorf, Dr Barr, Mr Heglund, Dr Ainsley, Dr Swartz, Dr Sutherland and the Busselton Chiropractic Clinic. He wrote at p3 that:
“This increase in symptoms and further limitation of spinal movement may be due to the natural progression of degenerative changes or related to his falls with respect to his dizziness”.
Again he said he:
“would not be advising any more of this [chiropractic] type of therapy, but rather a programme of neck and lower back exercises, a swimming programme and the massaging of an anti‑inflammatory analgesic gel into his tender areas”.
He did not change his assessment of Mr Williams’ capacity to work, Exhibit 12c.
In his final report of 16 February, Exhibit 12d, Mr Anastas commented on the x-rays of the cervical and lumbar spine. He said that after having seen the x-rays “I have nothing further to add to my report of 14th December 1998”.
In cross-examination was shown the photographs of a chiropractor doing manipulations and asked whether the movements shown if done repetitively could produce symptoms. He said if the person had to bend to the floor then, “Yes”, but not where there was a half bend. The type of work could possibly exacerbate symptoms. In his opinion the degenerative changes seen on the x-rays were there before the accident and had not developed since the accident.

Professor Hollingworth

Professor Hollingworth is a consultant and Associate Professor in Occupational Medicine in the School of Public Health at Curtin University with nearly 40 years experience in the field of occupational health. In his opinion “… this was a bizarre case and unique in my experience”, Exhibit 17 at p1. He did not mince words in his report in supporting that view. In relation to Mr Williams’ suggestion that by hyper-extending his neck he was repositioning the axis and taking pressure off the internal carotid artery, he said “In over 40 years of medicine, I have never heard such a bizarre explanation”.
In his opinion there was nothing to link the episodes of dizziness with the motor vehicle accident. He was of the view that Mr Williams was directing his treatment and had an input into reports written on his behalf. He wrote “I think there must be considerable doubt cast on this whole episode, and on his claims to be unable to work”.
Because of the strong views he expressed Professor Hollingworth was quite properly cross-examined at some length. In the end he did not resile from his central opinion that the case was bizarre and my opinion of his credibility was not altered.
When asked to list the words used in Dr Barr’s report of 21 March 1997 which caused him to form the opinion that Mr Williams was “involved in writing so-called reports from his GP”, Professor Hollingworth listed the following words or tests as not those commonly used or used at all by medical practitioners: abduction of the head and neck; as doing proprioception and stereognosis, which he said were not done on toes except in very unusual circumstances where there’s a suggestion of some perhaps spinal cord tumour or something like that; posterior processes, not common doctor’s parlance; marked cervical crepitus; dynamic energy transfer, a phrase he said was used by chiropractors which he had never seen that ever used by a doctor; cephalic, which has a very special meaning in medicine in that it’s reserved for the position of the head in labour on the presentation of the baby’s head. In Professor Hollingworth’s opinion it is not used otherwise. (See T195-6).
In his evidence he somewhat toned down the view in the letter by saying that “but there had been considerable input from the plaintiff”, T197, rather than “written by the plaintiff”. I am aware that Dr Barr said that he wrote the report, but I accept that because of the phraseology there had been some input from Mr Williams or that Dr Barr has been influenced by his relationship with other chiropractors to adopt terms not usually used in the writing of reports by medical practitioners. Professor Hollingworth said that he was familiar with other reports of Dr Barr and that he was a student of his for some years, T194, and that the terminology was not used.
When asked about the use of the photographs as indicating what Mr Williams could not do he said:
“It’s again very unusual. What you have to remember is I’m seeing this man at the end of 98, which is almost exactly 2 years after the accident. It is quite unusual to find somebody with that degree of debilitation with nothing that has been found to explain it. Right?” (T213)
I found Professor Hollingworth to be an impressive and convincing witness. Mr Williams violently objected to his opinion and made a complaint about him to the Medical Board. Although Professor Hollingworth in evidence retreated somewhat from the opinion expressed in his letter, he still held the view that consciously or unconsciously Dr Barr had absorbed some terminology from Mr Williams, and to the opinion expressed in his report of 11 December 1998 “there may well be significant input from the patient in his reports”, Exhibit 17 at p6.

Findings of injuries

Having seen and heard Mr Williams and watched the videos, I simply do not accept that he is as disabled as he claims to be. It is not for me to guess or speculate why he claims to be so disabled that he cannot work in his profession. This finding colours my view the opinions of the medical and chiropractic practitioners who have accepted his complaints that he cannot work at face value. There are no objective signs that the accident has caused any injury which prevents him working and their opinions are based on his complaints of symptoms. I am not satisfied that he is in the 20 percent of patients referred to by Dr Barr who do not get better or get worse.
I find on the evidence that Mr Williams sustained the injuries particularised in paragraph 3(a) ‑ (e) of the Statement of Claim. The fracture of the ribs was a clinical diagnosis without the aid of any contemporaneous x-rays, but in the end I do not believe there was an issue that Mr Williams sustained that injury. The symptoms from that injury settled within about two months without any lasting effect. He sustained the fractured teeth which have not yet been attended to.
He sustained soft tissue damage to the cervical, thoracic and lumbar spine, but the degeneration seen on the x-rays was not caused by that soft tissue damage. As a result of that soft tissue damage he probably has some ongoing neck stiffness and headaches, but not to the degree he complains of. I am not satisfied on the balance of probability that the dizziness was associated with the soft tissue injuries to the neck caused in the accident.

Loss of earning capacity

Mr Williams for family reasons was expected to do medicine after obtaining his leaving certificate. He did not enrol in medicine but in dentistry, but his heart was not in it and twice he failed first year. He then enrolled part‑time to obtain a degree in education but withdrew and went travelling. In the course of his travels he met a chiropractor and was encouraged to enrol in a course at the Palmer College in the United States of America. He received his qualification in 1967 after a four year course and returned to Perth. There were only half a dozen chiropractors in Perth when he started his chiropractic practice in Mount Hawthorn in October 1968. He purchased the premises and converted the house into a clinic, and adding extensions. He later bought the property next door.
He married and has two adult children, a girl aged 26 currently in the United Kingdom and a son of 20 who is currently a resident at a University College. He and his wife separated in January 1998 but there is hope of a reconciliation. No proceedings for divorce, maintenance or property settlement have been instituted and they have agreed between themselves how to manage the separation.
As to the practice, he took on a partner and that partnership lasted about 10 years. In 1978 Mr Heglund became his partner. Typically for many businesses they have arranged their affairs with both families having trustee companies and family trusts and a trading trust. Management fees are distributed through the trusts. All this is set out in the report of Mr Spooner, the accountant who valued the goodwill of the practice, Exhibit 14.
He was paid $90,000 a year by the Clinic and received a further $12,000 from the service trust. At the end of each month the partners assessed the profit and then made a distribution on the basis of the number of patients each had seen, which was the basis on which fees were generated. He was seeing on average 70 patients a day. The standard fee was $35, $32 for pensioners and veterans and there was a discount where a family attended the practice. In addition there were fees for the initial consultation and for x-rays. The average tax rate paid by Mr Williams based on returns was 13.5 per cent.
Mr Williams gave an example of how the distribution was made. If there was a profit of $25,000 and he had brought in $5,000 more in fees than his partner, then he would get that $5,000 and the balance would be split equally. Over the 12 months preceding the accident he had received an average monthly distribution of $6,200 in addition to his salary and the service fee.
After the accident Mr Williams continued to receive his normal income and employed a locum, Mr Pitman, and paid him out of his own pocket some $11,000 until he returned to work. When he returned to work he was paid as usual. On finding that he was unable to continue, he arranged for the same locum to take his place for six months. He ceased to draw his wage and did not share in the distribution of profits, though he still received the management fee. His wage was used to pay Dr Pitman. When he was still unable to return he arranged for another locum Mr Lieschke to take his place on the same basis.
When Mr Williams decided that he was not able to return to work he offered to sell his share in the partnership to Mr Lieschke but he decided not to buy in. Mr Williams then approached two others to buy, but they declined. There was concern because a locum had been in the practice and this means that clients who particularly wanted to see Mr Williams might go elsewhere. Mr Williams sold his goodwill and share of the equipment to his partner, Mr Heglund for $20,000.
It is claimed that the goodwill and equipment should have been valued at $89,460, Exhibit 14 at p4 para 2. Mr Spooner’s report and evidence described the method he used to obtain that figure. In cross‑examination it was put that the value of the goodwill was what Mr Williams received, but Mr Spooner did not agree. No other calculations were put before me.
Prior to the accident Mr Williams said that he had a 10 year plan which he said he would have put into effect but for the accident. His aim was to reduce his debts to zero over a 10 or 12 year period. He would then be able to live on his superannuation and his property investments. He thought his plan was realistic because he still had his health and was able to run a practice.
Since the accident he has been living on payments made under an accident policy he took out with Australian Casualty and Life and the payments from the service company. He is currently trying to raise money from investors to float a gold exploration company, but feels that it may not be the best time to try and attract investment in that industry.

Submissions

Mr Clyne submitted that if Mr Williams was not genuine in his complaints, why would he so drastically alter his lifestyle and submit himself to tests recommended by doctors to who he was referred. It was Professor Hollingworth who agreed with the suggestion that he should be seen by a vascular surgeon. Dr Barr then arranged a carotid Doppler to see if there were any narrowing of the vessel. That test proved negative. Professor Hollingworth noted that he had been referred for an MRI scan, but that was not carried out as Mr Williams told him he felt that he would pass out a short time after the scan had commenced. He then asked that the scan be terminated. Mr Stokes in February this year was of the opinion that he should have an MRI scan of the cervical and lumbar spine, but that has not yet been done. Reference was also made in the reports of Professor Hollingworth and Mr Stokes to him being reviewed by a neurologist in relation to the dizziness. Mr Williams said that he saw one the week before the trial, but no report was tendered and no neurologist was called. Mr Clyne’s point was that when he was told to have tests or be reviewed, he did and that is not conduct which one would expect from a person who was not genuine and might be shown on further examination to be a fraud. The comment might also be made that as the injuries were of a soft tissue nature, it would be unlikely that any signs would appear on any physical examination.
As to Professor Hollingworth’s opinion that chiropractic treatment was carried out at Mr Williams’ order, this was denied by Mr Heglund. However, in his evidence he referred to a joint decision to record treatment, T112 he did admit there were times when he examined Mr Williams and they would talk about his problem and they would come to a decision together, T125.
Mr Clyne submitted that it was not the case that Mr Williams used the accident as an excuse to change his lifestyle and cease his heavy workload as a chiropractor. It was clear from what he did that he always intended to return to work, otherwise why employ the two locums? It would have made better financial sense to sell his practice in 1997 before there was any adverse impact on his client base through the use of locums.

Finding on loss of earning capacity

In my opinion I am not satisfied on the balance of probability that Mr Williams has been unable to work as a chiropractor and I accept the opinions of Mr Anastas and Professor Hollingworth as to that in preference to the other medical evidence. I am thus not prepared to award damages on the basis of there being a total incapacity to work as a chiropractor or on the basis that there is no work that Mr Williams is capable of or otherwise qualified to do. The burden of proof on the balance of probabilities rests on a plaintiff to prove that the disability is productive of loss of earning capacity, and in this case I am not satisfied that the burden has been discharged. To the contrary, I am satisfied on the evidence of Mr Anastas and Professor Hollingworth that he is able to work as a chiropractor.
I allow the sum of $50,000 for loss of earning capacity as a global sum based on Mr Anastas’ assessment of the period within which he should have been able to return to work and making allowance for some loss because he had to ease himself in.

Assessment

As a preliminary comment, there seems to me to be an antinomy between the suggestion that Mr Williams should receive general damages on the basis of 20 per cent of a most extreme case and yet the claim for loss of earning capacity is calculated on a basis which approximates calculations of loss of earning capacity in a most extreme case of total incapacity. To me, using Professor Hollingworth’s word, this seems “bizarre”.
In my opinion general damages should be assessed on the basis of 10 per cent of the maximum amount of $219,000, namely $21,900, less $10,500, a sum of $11,400.
As to special damages the amount paid to the Mount Hawthorn Clinic should be paid up to and including the date when Mr Anastas said that such treatment was no longer indicated, namely 9 May 1997. I have already made allowance for Mr Sutherland.
On the basis of Mr Anastas’ report Exhibit 12a p4, my finding is that there was been a loss of income from the date of the accident until May 1997 and then during the time Mr Williams had to ease himself back into the practice. I allow a sum in relation to interest in the amount of $6,250, that calculation is made that interest at five percent on the sum of $50,000 for a period of two and a half years. I was not told that any other interest need to be allowed because he was out of pocket in relation to any special damages.

Conclusion

In summary the award is as follows

General damages	$ 11,400
Loss of earning capacity	50,000
Interest	6,250
Special damages	1,078
Future dental treatment	6,000
Total	74,738