Alcorn v Insurance Commission of WA - [2005] WADC 256

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ALCORN -v- INSURANCE COMMISSION OF WA [2005] WADC 256

CORAM: WAGER DCJ

HEARD: 22-25 AUGUST 2005

DELIVERED : 22 DECEMBER 2005

FILE NO/S: CIV 2261 of 2003

BETWEEN: MAVIS ALCORN
Plaintiff
AND
INSURANCE COMMISSION OF WA
Defendant

Catchwords:

Negligence - Motor vehicle accident - Injury to passenger - Possible causes of accident include epileptic seizure or symptoms of dementia - No contributory negligence - Damages - Personal injuries - Future medical needs - Future nonmedical needs - Gratuitous services

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Total Award $294,528

Representation:

Counsel:

Plaintiff: Mr T Lampropaulos
Defendant: Mr D R Sands

Solicitors:

Plaintiff: Simon Walters
Defendant: Talbot & Olivier

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

Brasser v Graham [1985] WAR 180
Jocelyn v Berryman (2003) 77 ALJR 1233
Southgate v Wilford (1990) 21 NSWLR 421
Wylde v Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Government Insurance Office (NSW) v Best, unreported; NSWCA; BC9201840; 2 June 1992
Gusakoski v Avram [2004] WADC 205

WAGER DCJ: In this action, the Plaintiff claims damages from the defendant for injuries she suffered as a passenger in a car which she sustained on 20 November 2000 on the Albany Highway in the Shire of Boddington. The car was driven by her husband, the insured person, who died as a result of the accident.
By an amended defence, the defendant admits that the insured person was negligent in his manner of driving but pleads that any injuries from which the plaintiff is suffering were caused or contributed to by her injuries from a previous motor vehicle accident in 1989/90 and, further, that the plaintiff drove with the insured person with full knowledge of the risk of injury as a consequence of her knowledge of his dementia and epilepsy.
Both liability and quantum are in issue.

The plaintiff's background

The plaintiff was born on 6 January 1944 in Africa. She married and had two daughters, however the marriage ended unhappily and she later brought her children to Western Australia. In 1977, she married the insured person (date of birth 2 May 1936) who was a widower and the father of two sons. They combined the two families and the plaintiff continued to work in a variety of positions of employment until she had a motor vehicle accident in about 1989, after which she did not return to work but started to set up for their joint retirement.
In 1995, she and the insured person retired to Albany enjoying an active life together, travelling, going on bush walks and picnics, dancing and boot scooting. They mixed with other couples and they both had a sociable life. It appears that their lifestyle started to change due to the insured person's deteriorating health.

Evidence of the insured person's health – epilepsy and blackouts

The plaintiff gave evidence that her husband had experienced episodes of dizziness and collapsing for about one year prior to his death. However, she agreed when medical evidence was put to her that they may have been occurring for a longer period. She described the episodes as 'blackouts' and stated that they would occur at home and that they had never occurred when she was driving with the insured person. The episodes would manifest themselves by her husband breathing heavily and he would then blackout while still breathing. He would lie on the floor with his eyes closed and she would revive him by giving him a drink of water or just sit with him until he was alright. These episodes would last for up to 15 minutes.
She agreed that she had sworn on oath in answer to interrogatories on 6 September 2004 in these proceedings that her husband did faint maybe once every three to four weeks. She said the last time he had fainted was more than a month prior to his death on 20 November 2000. She did not give any evidence that her husband had suffered from epilepsy and denied that he had experienced blackout episodes at any location other than at the home.
The plaintiff's daughter, Ms Alcorn‑West, also gave evidence in relation to the insured person's health. She had a close relationship with both the plaintiff and the insured person and, prior to the accident, they would come to visit her in Perth and she in turn would visit them in Albany. She stressed that she had concerns in relation to the insured person's health but they were in relation to headaches and memory loss. She denied having any real concern about him experiencing blackouts. It was her evidence that she was only aware of one blackout incident that occurred on a date that she could not recall when the insured person was taken to Accident & Emergency in Albany prompting her to drive to Albany to check on his condition. She stated that she could not recall the dates, times or details of any episode and doubted that her mother had advised her of her stepfather experiencing any other blackouts. Although given the close relationship between the plaintiff and her daughter, it is unusual that Ms Alcorn‑West did not hear further details of any blackout suffered by the insured person, there is no evidence that information in relation to subsequent blackouts was or should have been received by her. She did not live with the insured person and she saw him sporadically because of the distance between Albany and Perth.
Dr Smith, general practitioner from Albany, was called on behalf of the plaintiff and was the only medical practitioner to give evidence who had treated the insured person. The insured person had been a patient from June 1997 until just prior to his death. Clinical notes indicated that Dr Kaplanian, a general practitioner who had rooms at Dr Smith's Albany practice but who was not a witness at the trial, was consulted by the insured person at the Albany practice only four days prior to his death. At the insured person's first consultation with Dr Smith in June of 1997, he complained of episodes of waking up sweating with paraesthesia in both hands and associated dizziness and shortness of breath.
On 21 January 1998, he complained to Dr Smith of a possible collapse. The clinical notes recorded that the insured person collapsed about once every three months. However, from January 1998, the episodes were occurring four times a day. Dr Smith could find no reason for the collapses and no physical abnormality. He queried whether the collapses were due to cardiac abnormality and referred the insured person to Dr Lindsay, a physician, for assessment. In 1998, he also referred the insured person to a neurologist, Dr Kermode, who diagnosed that the insured person was suffering from hyperventilation attacks. One of the reasons why Dr Smith had made the referral for specialist assessment was that he had been concerned that the collapses were symptomatic of epilepsy. This concern was specifically addressed by both Dr Lindsay and Dr Kermode, who both considered that the attacks were as a result of hyperventilation, that is, over‑breathing, usually as a result of anxiety, not of epilepsy. The Albany Medical Practice notes recorded an attendance by the insured person at Accident & Emergency in Albany on 27 May 1999 in relation to a blackout episode. Subsequent to that date, Dr Smith prescribed Epilem, an anti‑epilepsy medication, to assist the insured person with his symptoms. Dr Smith did not suggest that he had epilepsy at this time. By September 1999, it was recorded in the clinical notes that the insured person was feeling better as a result of the Epilem and that he had experienced less grand mal seizures but still had some blackouts, that is altered breathing. It was noted that he did not drop, that is collapse, to the ground. It was Dr Smith's view that the insured person had not lost consciousness when he had experienced blackout episodes because he had not suffered any physical trauma as a result of falling or striking himself. Further, the noted symptoms for the episodes were that he felt unwell, had paraesthesis, shortness of breath, sweated and then blacked out.
Dr Smith was of the impression that the episodes had mostly disappeared over a two year period preceding the insured person's death due to him taking the prescribed medication Epilem and that the episodes were not a significant health issue at the time of his death.
Evidence was also given by registered nurse Jenny Grieve of the senior's mental health team, who carried out a psycho‑generic assessment on the insured person on 29 October 2000, less than one month prior to his death. Although her assessment did not specifically relate to episodes of this type, he had volunteered information to her in response to her questions relating to motor skills and social history and he had also participated in a geriatric depression scale.
The plaintiff had also been questioned by Ms Grieve in relation to her husband's conduct and neither the plaintiff nor the insured person had referred to blackout episodes in the course of the questioning and assessment.

The insured person's health – early onset dementia/Alzheimer's

The plaintiff gave evidence that her husband's memory loss was a cause for concern prior to November 2000. Dr Smith's notes record that in August 1999 the plaintiff raised her concerns about her husband's short term memory with him, including the fact that her husband would get in the car and get lost. The plaintiff confirmed in her evidence that she knew from the changes in her husband's behaviour that he was unwell, but as far as she was aware he had not been diagnosed with any medical condition. She described her concern that her husband would leave electrical appliances on in the house if he was up during the night and she was also worried about his change of character. She described him as having always been very sweet and agreeable, but he had become stubborn and they had arguments. Given her concerns, a second opinion in relation to memory loss was sought from another general practitioner in Albany, Dr Teows. The fact that a second opinion was obtained was noted by Dr Smith in his clinical notes on 18 February 2000.
Dr Smith described in his evidence that there had been a mammoth conflict between the plaintiff and her husband approximately three months prior to the accident in relation to whether the insured person was capable of managing his affairs. The clinical notes recorded that, given the plaintiff's concerns about her husband's ability to manage his affairs, she had approached Dr Kaplanian in relation to a further assessment of her husband and it was the insured person's understanding that Dr Kaplanian had indicated that as a result of that assessment, he was not to have control of his finances. The insured person had subsequently advised Dr Smith that he wanted to control his affairs and considered that he was fully capable of doing so. Dr Smith had supported him in this position and had subsequently referred him to Dr Lindsay, who assessed that the insured person was capable of managing his affairs at that time and diagnosed that he had short‑term memory impairment, which could be Alzheimer's or could be early dementia.
Ms Alcorn‑West gave evidence that she was concerned about the insured person's memory loss. Prior to his death, there had been a misunderstanding in relation to the borrowing of money. The misunderstanding arose from a letter she wrote that prompted her aunt, the plaintiff's sister, to be concerned. She also described an incident in which the insured person drove to Perth for a medical appointment and then immediately wanted to drive straight back to Albany. She was very worried about his safety and chose to hide his vehicle immobiliser because she did not want him to drive straight back to Albany, given the length of the drive and the fact that he had already driven to Perth on that day and would therefore be tired. She was not concerned about the quality of his driving generally.
Ms Alcorn‑West understood that one doctor had diagnosed the insured person as suffering from dementia, but another doctor had over‑ruled the diagnosis and said that he was fine. Although she gave evidence that she had made efforts to try and have a secondary diagnosis, there was no evidence of any efforts that were made by her. She stated that things did not look right and that she had initiated a brain scan and requested a further scan. However, there was no evidence in respect of any brain scan.
It was the evidence of Ms Grieve, registered nurse, that when she received a referral for a psycho‑generic assessment of the insured person in October 2000, she also received some information from the Armadale Psychiatric Clinic. She was unable to recall the source of the information that she had noted, including information in relation to the insured person's driving on a previous occasion. No admissible evidence was led in relation to this. She gave evidence that the insured person had completed the hierarchical dementia scale to test the twenty most significant cognitive and related functions. He scored 183 out of a possible 200, from which Ms Grieve determined that there were only three areas of concern, namely remote memory, recent memory and writing.
Given the results of the scale and further information received by Ms Grieve including that the insured person had been prescribed Zoloft, a mood lifter, and that in interview at the time of the assessment the plaintiff had reported her concerns in relation to her husband's aggressive behaviour, she considered that he may have been suffering from depression and accordingly administered the geriatric depression scale.
Ms Grieve subsequently arranged an appointment time for the insured person with his general practitioner in December 2000 so that the results of her testing could be discussed. The insured person died prior to that appointment.
The plaintiff consulted Dr De Tissera, psychiatrist, in 2002, nearly two years after her husband's death in relation to grief, depression and post traumatic stress disorder. Dr De Tissera noted in taking a personal history from the plaintiff that her husband was aggressive, both verbally and physically, and that she had general concerns in relation to the speed and manner of his driving. He had specifically recorded that she had complained that her husband had held her head under water in a sink. This evidence is not supported by any other witness and came solely from notes made at least two years after the death of the insured person in the context of psychiatric treatment. Neither the accuracy of the notes nor the incident alleged were put to the plaintiff in cross‑examination. Although vague in detail and time, the plaintiff remained emphatic on oath that although the insured person had been difficult he had not been physically violent towards her and she had no concerns about his manner of driving. Her evidence was supported by Ms Grieve who did not describe recording any history of physical abuse from the plaintiff, and Dr Smith who described conflict and argument but did not give evidence in relation to any physical acts of violence.

The motor vehicle accident

It was the plaintiff's evidence that she and the insured person had maintained contact with her daughters and their families in Perth requiring them to drive from Albany to Perth and back again on a regular basis. On each occasion, the insured person would drive and the plaintiff would be the passenger. It was her evidence that he preferred to drive.
On 20 November 2000, the insured person commenced driving to Perth with the plaintiff as his passenger, intending to go to a medical appointment. Her last memory prior to the accident was stopping for lunch about half way between Perth and Albany. She was subsequently advised that the motor vehicle accident occurred approximately 45 minutes later. She has no recollection of the events after lunch on that date, or of the accident. The next memory is of being taken in the ambulance to the Royal Perth Hospital. On her admission, she complained of significant injuries including pain to the shoulder, chest and leg. The extent of her injuries and the level of care required will be addressed later.
Although it is common ground that the insured person's health had started deteriorating at the time of the accident and that he experienced the onset of early dementia and blackouts, the plaintiff denies that she had any concerns that he may have blacked out at the wheel. It was the plaintiff's evidence that she cannot say what caused the insured person to have the accident.

Should the plaintiff have driven with the insured person?

Although the plaintiff encouraged her husband to seek medical advice in relation to his change in behaviour and memory loss and he had sought the opinion of four medical professionals over a period that she accepted was two years, none of the medical professionals raised that it was inappropriate for him to be driving and there had been no suggestion that he should relinquish his motor driver's licence, particularly given his age of 64 years. This evidence accords with the position of Dr Smith and Ms Grieve. The plaintiff did not consider that the insured person was likely to suffer a blackout episode because these had only occurred at home and he had not received any medical advice to suggest that he should not drive and she should not drive with him because of symptoms of Alzheimer's or early onset dementia. Dr Smith gave evidence that even if the insured person suffered from an episode while driving, which was unlikely because the episodes had abated, he would have had some warning that he was about to experience an episode prior to blacking out and the warning would have given him the opportunity to take evasive action if required. Although the insured person may have had concerns about speaking frankly to Dr Smith in relation to memory loss and his ability to conduct his affairs immediately prior to his death, there was no reason why he would not have reported the nature of the black out episodes and the frequency of the episodes when consulting Dr Smith prior to the family conflict in relation to his ability to conduct his affairs. The only evidence that has been led in relation to the blackouts is that the insured person suffered from these episodes infrequently prior to his death and that they manifested themselves in a manner that would have allowed him to take evasive action in the event that he experienced an episode at a time when he had control of a motor vehicle.
Further, there is no evidence that the plaintiff knew or ought to have known that the insured person would be likely to suffer from epilepsy, a condition with which her husband had never been diagnosed or from a blackout to the point of unconsciousness, a condition that had never been reported to Dr Smith or observed by the plaintiff or any other witness.
Prior to 20 November 2000, the only reported diagnosis of the insured person's condition was made by Dr Lindsay who, accordingly to Dr Smith's clinical notes, concluded that the insured person was "capable of managing his own affairs at the time and had short‑term memory impairment which could be Alzheimer's or early dementia." No assessment or discussion about the possible repercussions of the testing carried out by Ms Grieve had occurred at the time of death.
There is no evidence that any information was made available to the plaintiff that would have suggested to her that it was unsafe for her to drive in a car controlled by the insured person as a result of a diagnosis of early dementia/Alzheimer's. Further, there is no evidence that his memory loss, erratic behaviour and mood change affected or diminished his ability to drive and no evidence from doctors or health professionals of any assessment of impairment in relation to his ability to drive.

It is submitted on behalf of the defendant that regardless of the medical assessment and advice in relation to his condition, the insured person's presentation alone should have been sufficient to alert the plaintiff that she should not have driven with him. It is submitted that her position is analogous to that of a passenger of an intoxicated driver. The test referred to by the defendant is set out in Jocelyn v Berryman (2003) 77 ALJR 1233. At 1241, McHugh J stated:
"It is whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter into the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found to be impaired by reason of intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter into the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found to be impaired by reason of intoxication."

Liability

There is no evidence from which a conclusion could be reached that the manner in which the insured person's early onset of dementia/Alzheimer's manifested itself would have led an ordinary reasonable person to foresee that accepting a lift from someone in his condition would have exposed her to any risk of injury. The plaintiff has not contributed to the accident in any way, nor has there been a breach of duty on the part of the plaintiff in driving with the insured person. It is admitted on behalf of the defendant that the accident was caused by the manner of driving of the insured person and that the manner of driving was negligent.

THE PLAINTIFF'S INJURIES

The plaintiff's evidence

The plaintiff described her injuries in evidence as ‑
"I had some head injuries and my left shoulder with some broken bones (sic) and I had to have a rotator cuff mended. I had back and rib fractures and some vertebrae on my back and my leg and my ankle were crushed and a collapsed lung and my right foot also had a broken bone."
She described having stitches to her head, a haematoma and other bruises and scratches. She had difficulty breathing and her senses of smell and taste were impaired. When she was in hospital she suffered pain all over and referred specifically to a headache and neck and back pain. She was prescribed pain‑killers and attended physiotherapy and hydrotherapy. Her daughter, Ms Alcorn‑West, cared for her in hospital by visiting two or three times each day for a total period of five to six hours each day. Her daughter's assistance included bathing, doing her hair and helping with meals.
On discharge from hospital, she moved in with Ms Alcorn‑West and her family in Floreat. Ms Alcorn‑West continued to assist for five to six hours per day and carried out all shopping, cooking, cleaning and washing requirements, as well as seeing to the plaintiff's care. The plaintiff described having pain all over after she was discharged from hospital. She experienced dizzy spells when she was trying to walk or when she had been standing for too long and was tired. She also experienced blackouts on occasion. Her sleep pattern was poor and she described a good night's sleep being a four hour period. Her memory was dreadfully bad and she could not concentrate on reading. Initially, when she was discharged she was reliant on a wheelchair because she was weak, in pain and she had poor balance. She applied heat packs to the painful areas and took pain medication orally. After a couple of months in Floreat, she moved back to the family home in Albany. She was reliant on a wheelchair and required assistance in the home, initially from a private service at $25 per hour and subsequently from Lions Community Care at $5 per hour from a husband and wife team. Her daughters came to Albany each month for a weekend and provided her with food for a month and carried out heavy cleaning duties. She was able to go to appointments by specialised maxi taxi.
After a few months in Albany, she considered that she could not cope and she moved back to live with her daughter, Ms Alcorn‑West. She stayed with her daughter's family for one year and relied on her daughter for all of her cooking, cleaning, shopping and washing needs. Occasionally she would take a taxi to attend an appointment. She returned to Albany and believed that her condition had improved and that she could manage. She obtained a motorised scooter to assist in shopping and would travel to and from the shops by way of maxi taxi approximately twice per week. Her daughters still assisted her once each month and the Lions Community Care team continued to provide five hours domestic assistance in the home and the garden. The plaintiff returned to Perth in about 2002 to stay with Ms Alcorn‑West. The plaintiff's daughter and her family worked overseas for a period of one year and at this time the plaintiff returned to Albany.
On her return to Albany, the plaintiff experienced pain in her back, head, shoulder, leg, ankle and hip and she had dizzy periods if she was tired or had stood up for too long. However, at this time she was able to graduate from the wheelchair to a walking frame and was capable of carrying out her own washing, cooking and shopping with the assistance of a walking frame and wheeled support. The female cleaner was required for home duties that required bending and balance and the male cleaner assisted in the garden. The plaintiff confirmed that the garden was in an unfinished state at the time that she had moved into the home and that it had remained in that state up until the time of the accident and had never been brought to a finished state.
The plaintiff returned to Perth to live with Ms Alcorn‑West's family at their current address in family in North Perth in June 2005. The family had built an independent living area for her at their home and indicated that she was welcome to stay. She enjoyed their support but was undecided in relation to her future living arrangements.

Evidence of Elaine Alcorn‑West

Ms Alcorn‑West had a close relationship with her step‑father and mother prior to the accident. She gave evidence that the plaintiff and the insured person regularly travelled overseas together to visit family and would go out on picnics and travel around the south‑west. They visited her family in Perth frequently and were independently busy and fully occupied. They regularly walked in the country and had walked in Europe and America. She described the plaintiff prior to the accident as being a very strong and confident person. If the plaintiff had failed, then she would try again and keep on trying and she would not give up. She described the plaintiff as having friends and going out a lot.
After the motor vehicle accident, the plaintiff was and continues to be reluctant to go out. Ms Alcorn‑West believed that the plaintiff's confidence had decreased since she had been overseas in 2004 and described difficulty in encouraging the plaintiff to leave the house and to socialise. Ms Alcorn‑West confirmed that she had shopped, cooked and cleaned for her mother and, in Albany, had pruned her garden, cleaned the house, thrown out rubbish and generally maintained the house.
The plaintiff had returned to live with Ms Alcorn‑West in late June 2005. Ms Alcorn‑West and her husband designed an area of their North Perth house that has its own bathroom/ensuite and access to the common areas of the house, including the lounge room, dining room and kitchen to meet the plaintiff's needs. The plaintiff is welcome to stay with her.

Injury sustained on 20 November 2000

The plaintiff presented to Royal Perth Hospital by way of ambulance on 20 November 2000. She complained of pain in her shoulder, chest and left leg and of bruising. Examination and subsequent x‑rays revealed the following injuries:
1.Comminuted fracture of the left tibial plateau;
2.Dislocated left shoulder with avulsion fracture of the greater tuberosity of the humerus;
3.Facial and head lacerations;
4.Right pneumothorax;
5.Fractured proximal phalanx of the right great toe.
She was taken to theatre where an Ilizarov frame was applied to the left tibial plateau fracture. Her left shoulder was reduced under anaesthetic and the arm was placed in a collar and cuff. Her progress was complicated by right middle lobe pneumonia that was treated by antibiotics. Following a transfer to the Shenton Park Campus on 6 December 2000, she was transferred back to the Royal Perth Hospital for repair of the greater tuberosity and the left humerus. On 8 December 2000, she was transferred to the Shenton Park Campus. The Ilizarov frame was removed on 9 March 2001 and she was ultimately discharged on 27 April 2001.

Evidence of Mr Wren

Mr Wren, an experienced orthopaedic surgeon first treated the plaintiff at Royal Perth Hospital following her presentation in November 2000 and shared her treatment at Shenton Park Rehabilitation Hospital. He also monitored her progress as an out patient and last reviewed her on 22 June 2005.
Mr Wren described a very unusual, comminuted sleeve‑type fracture of the left lateral malleolus with disruption of the peroneal trochlear and dislocation of the peroneal tendons with an associated fracture of the tibial playfond and a distal tibial metaphysis. He applied an Ilizarov frame to the injury and the plaintiff was required to remain strictly non‑weight bearing for a period of six weeks. At the first outpatients appointment he was dismayed when he discovered that she was in a wheelchair because it was his view that there was no reason for the plaintiff being wheelchair bound. He recommended a neurological assessment to rule out any neurological cause. He also recommended psychiatric treatment on the basis of apparent abnormal illness behaviour. He noted his views in relation to a possible psychiatric condition in correspondence to the plaintiff's general practitioner, Dr Smith, in November 2001, February 2002 and April 2002. No evidence of an assessment in relation to abnormal illness behaviour was given.
Mr Wren's examination of the plaintiff's left lower limb revealed mild soft tissue swelling and bony swelling and some limitation in movement. He noted that the plaintiff walked on flexed knees and hips with a flexed trunk and, at times, with a stiff leg on the left side. She also lurched in a forward and backward direction. He tested her righting reflex's, that is her ability to actively recover when pushed beyond her angle of natural recovery, and found that she responded well. He noted that despite reports to the contrary, she had suffered no cerebral injury apart from retrospective amnesia. There was, therefore, no head injury consistent with the problems with her gait. She had full movement in her knees and hips and good mobility when on the bed and in a chair being able to reach to her feet and move about in the bed. These findings were inconsistent with her gait. Further, in contrast to Dr Fong, who found a two centimetre discrepancy between the plaintiff's limbs, Mr Wren determined that her legs were of equal length. Importantly, he had Dr Fong's assessment prior to conducting his own detailed measurement.
Mr Wren considered the plaintiff's gait pattern to be "fictitious" and he assessed that because no psychiatric treatment or assessment was made to address what he considered to be abnormal illness behaviour, the gait had become entrenched over a period of four years.
Mr Wren assessed a permanent residual disability of 10 per cent loss of function of the left lower limb below the knee and estimated a permanent residual disability of 10 per cent loss of function of the left upper limb that was consistent with ongoing pain and limitation in movement.
He considered the end plate compression fracture of the L3 vertebrae to be minor because of its location on the top of the bone. Given that the vertebrae was not crushed, he assessed the lumbar spine disability at a maximum of 5 per cent. He noted degeneration to the cervical spine but agreed that soft tissue injury to the cervical area, as diagnosed by Mr O'Connor, was possible.
He did not consider that physiotherapy or hydrotherapy was serving any purpose other than to support the plaintiff psychologically and assessed that there was no medical reason for reliance on aids or appliances.

Evidence of Professor Mastaglia

Professor Mastaglia, a specialist neurologist with 35 years experience, saw the plaintiff at the request of the plaintiff's solicitors in July 2003 and June 2005.
He took a verbal history and considered a report in relation to the plaintiff's original injuries. The plaintiff's self‑assessment in 2003 included complaints of pain in the lower back, pain and swelling of the left ankle and foot, pain in the neck and constant occipital and frontotemporal headaches, pain in the left shoulder and arm and episodes of light headedness and dizziness.
Her mobility was restricted and she used a walker with a seat at home and a wheelchair if she left the home. She described suffering blackouts and experienced a loss of her sense of smell. She reported a prior history of cervical whiplash injury to him.
On examination, Professor Mastaglia found that the plaintiff could walk with support out of the wheelchair, but she described feeling very dizzy and shaky and had difficulty in judging distances. He noted that she was quite alert and orientated and that although cranial nerve functions showed a persisting reduction in the sense of smell in both nostrils other cranial nerve functions were preserved.
The plaintiff experienced pain with elevation as well as with internal and external rotation of the left shoulder joint and there was tenderness over the capsule of the shoulder joint. There was antalgic inhibition on testing muscle power in the left upper limb and the right hand.
Professor Mastaglia noted marked swelling around the left ankle and foot that he described in evidence as "very, very abnormal for an ankle and foot" and stated that it was very swollen with a markedly reduced range of movement in the joint. He noted a "give way" pattern of weakness in both legs that he considered was related to discomfort and pain.
Professor Mastaglia found that the plaintiff had a reduced range of neck movement, in particular rotation to the left which was reduced to approximately 75 per cent of the normal range, and extension of the neck which was reduced to approximately 60 per cent of the normal range and from which she experienced pain. Lumbo‑sacral spinal movement was also markedly restricted with pain and diffuse tenderness over the upper, mid and lower lumbar areas. He further noted that given the compression fracture of the L3 vertebrae an associated injury to the spinal nerve roots needed to be considered and he recommended that she undergo MRI scans of the lumbar as well as the thoracic and cervical spine. The results when subsequently assessed indicated that she did not have significant spinal injury or spinal nerve root or chord compression. Professor Mastaglia assessed her impairment to the neck at between 5 ‑ 15 per cent. He based this on her history of pain and because on examination he had found significant restriction in movement of the neck. The accident had aggravated her pre‑existing disc problem and he considered that there may be a soft tissue injury to the ligaments and muscles in the neck around the facet joints. He agreed that the overlap in expertise between neurologists and orthopaedic surgeons is that both deal with problems in the spine and that many neurologists would have experience with soft tissue injury, a type of injury that cannot be positively seen on x‑ray.
Professor Mastaglia assessed that the plaintiff had a 15 per cent residual disability to her back. He determined her back injury was a partial vertebral fracture that he considered was mild to moderate and that such an injury would be likely to be the cause of ongoing symptoms such as back pain and a contributor to impaired mobility in combination with the left ankle injury. He determined that the left ankle/leg had a residual disability of 20 per cent and the lower limbs and general mobility had a residual disability of 30 per cent. Given the very unusual presentation of the ankle in 2003, he fully accepted that bearing weight on the ankle was one of the main reasons why her mobility was impaired. He assessed the residual disability to the left shoulder at 5 per cent and the impairment of the sense of smell at 20 per cent.
On examination in 2005, he noted improvement in the plaintiff's sense of smell and a slight improvement in her mobility. However, his assessment of her impairment otherwise remained the same as in 2003. He considered analgesic and other medication for pain control to be appropriate future treatment.

Evidence of Mr O'Connor

Mr O'Connor, an experienced orthopaedic surgeon assessed the plaintiff on one occasion on 1 April 2004 at the request of the plaintiff's solicitors.
His examination of her left shoulder revealed wasting and restriction in movement that he assessed at a 15 per cent loss to her left upper arm. Although this is slightly higher than the assessment of impairment made by Mr Wren, his findings were not dissimilar.
Similarly, the assessment in relation to impairment of the function of the left leg below the knee at 10 per cent and a 5 per cent loss of function of lumbar spine accords generally with the assessment of Mr Wren.
Mr O'Connor assessed a further 5 per cent disability to the plaintiff's cervical spine that he attributed to a soft tissue injury and some minor pre‑existing osteoarthritis. He considered a cervical injury of this type would have been the norm rather than the exception, given the type of accident that occurred, and that the plaintiff's lack of complaint at the time of the accident in relation to a soft tissue injury was probably due to the level of trauma, both physical and emotional, that she was suffering. Mr O'Connor concluded from his examination and assessment that the plaintiff's lack of mobility was predominantly due to dizziness and a lack of balance. However, he conceded that these were not areas of orthopaedic concern.

Evidence of Dr Kailis

Dr Maria Kailis, general practitioner, treated the plaintiff on an almost monthly basis from March 2003 to August 2004. She diagnosed that the plaintiff's physical problems were aggravated by her psychological and psychiatric problems, however she did not consider the plaintiff's complaints to be fictitious. Dr Kailis considered that the plaintiff's psychological problems, the traumatic nature of the accident and the death of the husband had completely overwhelmed her ability to cope, leading to the interplay between her physical and psychological symptoms. Dr Kailis described the plaintiff feeling unstable and unsteady and that these feelings genuinely interfered with the way that she moved. It was Dr Kailis' assessment that the plaintiff had made a significant recovery recently, both physically and psychologically, in that she was moving out of her wheelchair and was onto her walking frame. The improvement in mobility was, in Dr Kailis' assessment, the result of physiotherapy and hydrotherapy. Dr Kailis considered that the plaintiff would require ongoing medication as previously prescribed and would need to attend a general practitioner for monthly consultations. The plaintiff usually consulted Dr Kailis for a long consultation.

Evidence of Dr De Felice

Dr De Felice, psychiatrist, saw the plaintiff at the request of the plaintiff's solicitors on 3 July 2003 and 13 June 2005. The plaintiff's unchallenged history was that prior to the accident she had been a happy, positive person who did not have any psychological symptoms. The history taken by Dr De Felice was that she was now unhappy and felt sorry for herself. She described to him having fleeting ideas of suicide, her concentration was really bad, her memory was poor and she had difficulty sleeping because she was woken by nightmares related to the accident. She avoided friends, particularly couples, and was afraid to give too much love to her children because she feared she may lose them as she had lost her husband. She had lost confidence in living alone in Albany following a break‑in at her home and was unsure of her future living arrangements.
Dr De Felice diagnosed the plaintiff as suffering from major depression. He stated in his report dated 3 July 2003 that the plaintiff's diagnosis:
"… has been both grief following the loss of her husband, but also the limitations and incapacity associated with the physical injuries she experienced subsequent to her motor vehicle accident."
It was his evidence that it was very difficult to tease out which of these factors was the most important in precipitating her major depression or perpetuating her symptoms. He diagnosed symptoms of post traumatic stress disorder sufficient to make a diagnosis of that condition. He considered that the plaintiff would continue to be incapacitated in the near future and he was not optimistic about her symptoms improving without more aggressive anti‑depressant treatment and grief work.
In 2005, Dr De Felice assessed the plaintiff's condition following protracted sessions with Dr De Tissera. At this time, she still had prominent symptoms of major depression of moderate severity and ongoing post traumatic stress disorder of mild to moderate severity. He considered that she would require medication for the next two to three years and probably indefinitely. He confirmed that her post traumatic stress disorder and her level of depression was associated with cognitive disturbances, such as concentration difficulties and agreed that she had poor recollection of the accident.
Dr De Felice did not consider that the plaintiff was suffering from abnormal illness behaviour although he had not been asked to specifically consider this condition as part of his assessment. He based his conclusion on the plaintiff's report in 2005 that overall she felt her treatment had helped her so that she was not blaming herself so much and did not have strong inclinations to suicide. She said that she was not crying as much and slept a bit better and she concluded that overall she was 50 per cent better from the point of view of her psychiatric symptoms.
Dr De Felice did not consider that the plaintiff had improved as much as her personal assessment indicated and that she had been optimistic in making this self‑assessment in a way that was inconsistent with a diagnosis of abnormal illness behaviour. Further, when initially listing her physical injuries, she had forgotten to mention some of the injuries contained in medical reports forwarded to Dr De Felice. This, he considered, was also inconsistent with a diagnosis of abnormal illness behaviour.

Evidence of Dr De Tissera

The plaintiff was referred to Dr De Tissera by Dr Smith and consulted Dr De Tissera sporadically from 20 January 2004 until June 2005. Dr De Tissera noted that the plaintiff had been suffering from depression and insomnia with a gain of weight. She complained of a lack of energy and experienced intrusive thoughts of the accident, nightmares, flashbacks and distress at the bereavement of her husband. She had no friends and lacked confidence in herself and she feared being a passenger in a motor vehicle. He diagnosed initially that the plaintiff had ongoing symptoms of major depressive disorder, post traumatic stress disorder and an unresolved grief reaction.
Through ongoing sessions, he considered that the grief reaction had resolved and that there was no need for future psychological sessions. The symptoms of post traumatic stress disorder and major depression disorder still remained and blended into one.
Both psychiatrists assessed that the plaintiff's ongoing psychiatric impairment was moderate and both assessed that her condition had manifested itself in physical ways such as through lack of sleep, nightmares and flashbacks.
Dr De Tissera was not asked to address abnormal illness behaviour.

Evidence of Dr Fong

Dr Fong, a specialist in rehabilitation medicine, saw the plaintiff on 4 May 2004 at the request of the defendant's solicitors. Having recorded the plaintiff's history, he considered her residual health problems to be multiple regional pain at various sites of injury. The history noted by Dr Fong included cervical mechanical discomfort aggravated by rotation of the head to the left and increased by use of the left arm. He also noted a separate sharper lower back pain and left hip pain on increased exertion or after prolonged standing, or with bending. The left shoulder became increasingly uncomfortable with prolonged upper limb use. The plaintiff experienced frequent headaches characterised by a throbbing occipital discomfort that tended to be worse in the mornings and after exertion.
Dr Fong further noted that the plaintiff had poor balance leading to a tendency to fall. She used a wheelchair for outdoor mobility and a walking frame for indoors and he considered that use of a motorised scooter was appropriate. He noted that the plaintiff had a total loss of sense of smell and suffered emotional dysfunction in the form of a moderate degree of ongoing depressed mood and a lesser degree of post traumatic stress disorder symptoms.
Dr Fong considered that the regular medications prescribed by her general practitioner and psychiatrist were appropriate. He noted that she took part in one hour's daily home exercise programme and twice weekly physiotherapy and hydrotherapy. He assessed that it was very important for her to continue with an appropriate maintenance exercise programme to enable her to maintain her level of functioning as long as possible.
On examination, he found that there was no indication of symptom amplification or illness behaviour. He noted that the left leg was a significant two centimetres shorter than the right and that her calf circumference was one centimetre greater on the left. He noted a moderately restricted range of flexion in the left ankle and that the left shoulder showed a mild restriction of movement. Her range of movement in the neck was also mildly reduced below expectation. He was unable to assess her lumbar spine range because of her difficulty in standing, however he noted that she had marked weakness in her core strength.
Dr Fong assessed that specialist review, wheelchair and other supports and a domestic cleaner for three hours per week were appropriate.
In his opinion the plaintiff would probably require accommodation in an aged care facility beyond the age of 70 years. He based this assessment on the information that she would be residing alone in Albany rather than residing with her daughter's family in Perth. It was his opinion that she had a level of impairment of approximately 35 per cent based on her residual conditions.

Evidence of Mr Jones

Mr Jones, a qualified occupational therapist with the Optima Health Group, saw the plaintiff on two occasions at the request of the plaintiff's solicitors, firstly on 10 July 2003 and then when he conducted a home based assessment on 7 July 2005. He considered previous reports in relation to the plaintiff and obtained a lengthy history from her that was consistent with her presentation. He noted that her treating practitioner's objective was to have the plaintiff independently walking with a walking aide, rather than being reliant on a wheelchair in the future.
In 2003, on examination the plaintiff displayed postural asymmetry in standing, with weight shift to the right consistent with her impaired weight bearing capacity. She was able to lower her body weight to floor level, adopting a weight bearing two point kneeling posture at ground level, and used bilateral weight bearing through the upper limbs to aid resumption of standing.
He noted that with verbal prompting, her active range of movement of the ankle improved and was near normal, as was her functional hip movement. She remained reluctant to fully weight bear on her left foot, reporting pain. He viewed her balance problems as being in part attributable to her physical limitations and in part due to her hesitancy and her lack of confidence arising from her persistent post traumatic stress reaction.
In 2005, he noted that the plaintiff intended to live with her daughter in North Perth in the bed‑sitter facility that the daughter had built at her home and that the plaintiff had used for intermittent stays. He noted that beyond contact with her family and medical appointments, the plaintiff did not have any social engagements. He observed that the plaintiff had added weight and that her right ankle revealed swelling and that there was thickening of her left leg. Flexion was restricted in the left shoulder and cervical neck movements were grossly restricted in extension, lateral flexion and rotation.
For management of these conditions, the plaintiff attended a combination of physiotherapy focussing on balance, Pilates and hydrotherapy. The plaintiff also relied daily on medications, heat and cold packs and rubs. He assessed that the medication presently prescribed to the plaintiff was appropriate and that she would continue to require prescribed medication in the future. He assessed that she would benefit from access to mobility aids and rails to assist in independent living. He assessed that a zone security and monitored security system at a cost of $3,400 with a $400 ongoing cost each year were required. He also considered the plaintiff's taxi needs in relation to travel in Albany at four trips per week.
He considered internal and external domestic assistance was required for approximately four hours weekly in total and assessed that $5,000 would be required to be spent on the garden in Albany to bring it up to standard. He acknowledged that the original condition of the garden was not known to him. Mr Jones confirmed that recently the plaintiff had undertaken courses in writing and using the email facility on the computer which he considered to be a positive step.

Evidence of Ms Jodrell

Ms Ruth Jodrell, a qualified Occupational Therapist, assessed the plaintiff at her home in Albany at the request of the defendant's solicitors on 5 March 2005. Although it was suggested in evidence that the plaintiff was unwilling or uncooperative, this was not confirmed by Ms Jodrell, whose evidence was not markedly different from the evidence of Mr Jones.
The plaintiff reported that standing caused pain in her back, right hip and down her right leg. The plaintiff was apprehensive if she stood without support and felt that she had to concentrate on the pain and make sure that she was not banging into things. She also checked that the ground surface was level and that there were no obstacles. Rather than actually overbalancing and falling, the plaintiff felt that she was overbalancing and clumsy, and the plaintiff had described that if she turned her head quickly to the left she felt dizzy and experienced headache.
The plaintiff reported some improvement in her condition to Ms Jodrell in that the plaintiff was less depressed and overwhelmed by grief than she had been soon after the accident and she was now able to kneel on the floor. Her social isolation was noted by Ms Jodrell.
Ms Jodrell confirmed that the plaintiff used a four‑wheel walker, four‑wheel scooter and a glide manual wheelchair. Ms Jodrell assessed that the plaintiff relied on supports, particularly in the kitchen and bathroom. When residing in Albany, the plaintiff used the maxi‑taxi service to go to appointments and to enable her to take her wheelchair with her to carry out major shopping.
The plaintiff advised Ms Jodrell that she had ceased hydrotherapy in December 2004 because payment was no longer made on her behalf. Physical movement was determined by Ms Jodrell to be positive for the plaintiff and was encouraged.
The plaintiff was able to carry out most of her own laundry, shopping, meal preparation and bathing. She required assistance for some cleaning and gardening that Ms Jodrell calculated at 1.5 hours per week for the cleaning, with additional hours for spring cleaning and three hours every two months in relation to gardening. Ms Jodrell assessed the cost of cleaning at $16.50 per hour, (although she had received a quotation of $17.50 per hour) and the cost of gardening at $35 per hour. Ms Jodrell considered that regardless of the level of keep of the garden, gardening was required to reduce the fire risk at the Albany property.
Ms Jodrell's cleaning assessment was based on the plaintiff using two bathrooms, the lounge room, kitchen and bedroom in the home. Ms Jodrell assessed that in the future if the plaintiff moved to a smaller unit the level of cleaning would remain the same.
Ms Jodrell considered that it was very unlikely that the plaintiff would move into full‑time aged care at 70 years and assessed that she would probably remain in the home until the age of approximately 85 years, as elderly people were now encouraged to stay in the home rather than move to an aged care facility.

The extent of the plaintiff's injuries

The plaintiff initially presented with the following injuries:
1.Left ankle and distal tibia playfond fracture;
2.Left shoulder fracture dislocation;
3.Chest injury with small left pneumothorax with bilateral posterior atelectasis;
4.Two small lacerations to the forehead;
5.Lumbar spine partial compression fracture L3;
6.Right ankle posterior process fracture right talus;
7.Right hallux fracture proximal phalanx.
The plaintiff suffered significant pain and physical trauma and required surgery on more than one occasion. She was immobilised for a lengthy period and hospitalised for over five months.
Mr Wren, who treated the plaintiff from her initial admission at Royal Perth Hospital through shared care at Shenton Park Rehabilitation Hospital and subsequently as an outpatient until 22 June 2005, was able to monitor the plaintiff and assess the progress of the plaintiff's physical injuries, a number of which were noted by other medical practitioners.
It was not challenged that the plaintiff's left shoulder injury caused ongoing pain and limitation in movement and flexion. The injury will continue to be an impairment on the evidence of Professor Mastaglia, Mr O'Connor and Mr Wren. In assessing the level of impairment in relation to her shoulder, I prefer the evidence of Mr Wren because he treated the plaintiff and observed and assessed her injuries over a five year period, whereas Professor Mastaglia saw the plaintiff twice and Mr O'Connor saw the plaintiff once for assessment only.
The plaintiff gave evidence about an injury and resultant pain to the cervical spine area. This injury was not recorded on admission after the accident. Degeneration of the cervical spine consistent with a previous injury received in 1989/1990 was noted by Professor Mastaglia, Mr O'Connor and Mr Wren however the previous injury was not consistent with the pain experienced by the plaintiff after the accident and none of the specialists considered that degeneration was consistent with her presentation. Mr O'Connor and Professor Mastaglia were of the view that the plaintiff had sustained a soft tissue injury to the cervical region in the accident. Mr O'Connor considered that a cervical injury of this type would be the 'norm', rather than the exception given the type of accident that occurred. The patient's lack of complaint in relation to the injury at the time of the accident was explained as being probably due to the level of trauma, both physical and psychological, that she experienced. Although Mr Wren did not agree that an injury of this type was the "norm", he did agree that a soft tissue injury was possible. A soft tissue cervical injury was corroborated by the examination and observation of Professor Mastaglia. I find that soft tissue injury was sustained by the plaintiff in the cervical spine area and resulted in pain and discomfort to her.
The partial vertebral fracture to the L3 vertebrae has also continued to cause pain to the plaintiff. Mr Wren considered this to be minor because the L3 vertebra was not crushed. I accept that when compared with other potential fractures to the vertebrae, this fracture is at the lower end of the scale. I also accept Professor Mastaglia's and Mr O'Connor's evidence consistent with a finding that any fracture to the L3 vertebrae would cause ongoing symptoms such as back pain and may be one of the contributors to the plaintiff's impaired mobility.
The most significant physical injury sustained by the plaintiff was the fracture to the left ankle and distal tibial playfond, described by Mr Wren to be very unusual. He described an examination in 2002 revealing mild soft tissue swelling and bony swelling and he observed some limitation in movement. Mr O'Connor and Professor Mastaglia also detected swelling and noted that the plaintiff experienced pain. Professor Mastaglia observed that the left ankle and foot was very, very abnormal and that it was very swollen with markedly reduced range of movement. I accept that the left ankle and foot continues to cause significant pain to the plaintiff and that she still experiences swelling in this region. I accept that if she stands for lengthy periods she experiences significant pain in the left leg and foot and that she finds it very difficult to bear weight on her left foot. This has been the predominant reason why she has had difficulty in walking and is tentative about walking without the support of a wheelchair or walking frame.
I accept that she will continue to experience pain if bearing weight on the left foot.
Mr Wren noted with concern that there was no reason why the plaintiff could not walk and that her knee and hip flexion were normal. Pathologically he did not consider that there was any reason why she could not walk or why she would walk with a gait that he described as 'fictitious'.
Mr Wren noted that there was no record of the plaintiff sustaining a cerebral injury at the time of the accident and no evidence of cerebral haematoma or any significant head injury being sustained at any time. He considered that there was no physical reason to explain the plaintiff's inability to walk and repeatedly requested that her general practitioner refer her to a psychiatrist for treatment in relation to abnormal illness behaviour. There is no explanation as to why a referral or consideration of abnormal illness behaviour did not occur. However, on the evidence that was led, I am satisfied that the plaintiff does not suffer from abnormal illness behaviour. Dr De Felice described the plaintiff as not referring to some of the physical injuries that she sustained and being overly optimistic about her psychiatric condition in 2005. He considered that her failure to remember and dwell on her injuries was inconsistent with a diagnosis of abnormal illness behaviour. Dr De Tissera, the treating psychiatrist, was never asked about abnormal illness behaviour.
Dr Kailis, who was the plaintiff's general practitioner in Perth, remarked on the improvements that the plaintiff had made in moving from a wheelchair to a walking frame. Although Dr Kailis expressed concern about the plaintiff's psychiatric condition and ability to progress, she considered that the plaintiff was genuine. Her observations were consistent with the diagnosis of major depression and post traumatic stress disorder however inconsistent with a diagnosis of abnormal illness behaviour. Dr Fong similarly found the plaintiff to be credible and dismissed any suggestion of abnormal illness behaviour.

Apart from the injuries to the back and the pain to the left foot that would make walking painful and distressing, there is no pathological reason why the plaintiff could not walk.
The pathological findings cannot be considered in isolation. The plaintiff has suffered significant trauma resulting in grief, major depression and post traumatic stress disorder. In 2003, Dr De Felice diagnosed major depression, the precipitant being both grief from the loss of her husband but also her incapacity associated with the physical injuries she experienced subsequent to the motor vehicle accident. He assessed each cause to add 50 per cent to the depression from which she suffered.
Dr De Tissera, after multiple sessions in 2004, considered that the plaintiff's grief symptoms had been addressed and that she would not require psychological assistance because this issue had mainly resolved.
Neither psychiatrist was able to fully distinguish the symptoms of the diagnosed post traumatic stress disorder from the symptoms of major depression and both confirmed a moderate level of impairment. Dr De Felice reassessed his assessment of the plaintiff's level of impairment because he noted on subsequent examination that, despite receiving psychiatric treatment from Dr De Tissera, her psychiatric condition remained poor. Both psychiatrists considered that she will suffer from major depression and post traumatic stress disorder for a significant period, perhaps the rest of her life, and that medication is required.
Dr De Felice also confirmed that the plaintiff's vagueness, memory problems, loss of confidence and lack of sleep are related to her psychiatric condition. I consider that the diagnosis of major depression and post traumatic stress disorder and related symptoms are major factors in the plaintiff's inability to walk unaided.
Although pathologically the plaintiff may not require the aids that she uses in order to walk, I find that her need is genuine. Dr Kailis and Ms Jodrell both assessed that the plaintiff probably did not collapse and fall, but acknowledged that she had a fear of hitting herself and falling over. I consider that this hesitancy and fear is due to the plaintiff's psychiatric conditions combined with her physical impairment. The combination precludes her from walking unaided. Although initially following the accident the plaintiff may have been able to walk without the aid of a wheelchair if pressed it would have caused her significant pain and distress. Given the ongoing nature of the plaintiff's pain and psychiatric condition and that it is now five years since she walked unaided, I do not consider that she will be able to walk unaided in the future. I consider the aids and appliances currently used by the plaintiff are required and will continue to be required.
The plaintiff attended physiotherapy and hydrotherapy on a regular basis until December 2004, when funding ceased. Mr Wren does not consider that the physiotherapy provides any demonstrable clinical outcome. However, I accept the evidence of Ms Jodrell, Mr Jones and Dr Fong that physiotherapy and hydrotherapy assist the plaintiff, particularly as she is ageing. I consider that there is a need for her to maintain fitness and flexibility in the future to ensure that she does not aggravate her condition and physiotherapy and hydrotherapy assist in this regard.

General damages

The plaintiff is entitled to general damages for the accident itself and for the resultant pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Section 3C of The Motor Vehicle (Third Party Insurance) Act 1943 ("the Act") sets limitations on the award of damages for non‑pecuniary loss.
Section 3C (3) provides that the maximum amount of damages that may be awarded for non‑pecuniary loss is $268,000 and that the amount may be awarded "only in the most extreme case". The approach to be adopted when considering what "only in the most extreme case" means, was discussed in Wylde v Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 in which the New South Wales approach to a similar provision in Southgate vWilford (1990) 21 NSWLR 421 at 440 was adopted. The court said:
"There are a number of ways by which trial judges could approach the task of apportionment required by ss 79(2) and 79(3). It is inappropriate in this case for this court to mandate any particular way of arriving at the "proportion" required by s 79(2). But clearly, because the task in hand is that of awarding damages for "non‑economic loss" it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive "a most extreme case". Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article "A" has already been noted. Opinions of what constitutes "a most extreme case" no doubt must vary. But clearly quadriplegia would fall into that class. The amount to be awarded must be apportioned somewhere between 'nil' and $180,000 (the maximum); but in a ratio which the judge fixes, keeping in mind that the cap of a statutory maximum is retained for a "most extreme case"."
An assessment of the evidence is required to find the right proportion between a most extreme case and the plaintiff's position. I have already made findings in relation to the plaintiff's injuries, diagnosis and prognosis.
I find that the accident was a very traumatic experience that has dramatically changed the plaintiff's life.
Prior to the accident, the plaintiff led a full and active life, enjoying travel, bushwalking and dancing and she enjoyed socialising. She did not suffer from a psychiatric or a psychological condition and she was in good physical health.
The injuries she sustained make movement slower and painful and she is restricted in her ability to walk. She is dependent on physical supports and will be reliant on medication in the future. She suffers from ongoing depression and post traumatic stress disorder. Her sleep is poor and her days are very lonely. She is fearful of being in a motor vehicle, relives the trauma of the accident and is scared to be close to others because of the possibility of loss.
Although her grief symptoms have now resolved, she is likely to continue to have depression and post traumatic stress disorder in the future. I consider that the resultant vagueness, memory problems, dizziness and social isolation will continue. I accept that she feels pain in her left leg if pressure is placed on the ankle and that her ability to move her left shoulder is limited. Neck and back pain is ongoing. These symptoms will remain with her for life.
Having regard to these matters and to her evidence generally, I find that the plaintiff's initial injuries and symptoms, her ongoing symptoms and treatment and the effect that they have on the plaintiff's enjoyment of life, puts the plaintiff's case at 25 per cent of a most extreme case. Given that the maximum amount is $268,000, 25 per cent is $67,000. No statutory deduction applies. Accordingly, general damages will be awarded in the sum of $67,000.

Residence in Albany or Perth

The plaintiff's future needs were assessed by the occupational therapists, Mr Jones and Ms Jodrell, on the basis that she would continue to reside in Albany. The Albany home is too large for her general needs. It is situated on a large sloping block and the garden is in a poor state. The Albany home has stairs that the plaintiff finds difficult to manage. In Albany, she is alone and isolated and reliant on the domestic services of Lions Community Care.
The plaintiff has resided with Ms Alcorn-West's family at the North Perth address since late June 2005. Ms Alcorn-West and her husband have designed an area of their home for the plaintiff that has an independent room and ensuite bathroom and access to the common areas of the home. The plaintiff is welcome to stay permanently with them in North Perth and Ms Alcorn-West considers the question of where the plaintiff lives to be a decision for her mother.
Although the plaintiff may have chosen to live independently in the past, I find that the restrictions of her current physical and psychological state are such that she will choose to live with her daughter in North Perth rather than live independently in Albany in the future. On discharge from hospital in 2001, the plaintiff lived briefly with Ms Alcorn-West who then resided in Floreat and the plaintiff enjoyed the comfort and support of Ms Alcorn-West caring for her needs. The plaintiff returned briefly to Albany but was unable to cope on her own and, after a further period in Floreat with Ms Alcorn-West, attempted again to live in Albany. Once again, she found it difficult to cope alone and was distressed by a break‑in at her Albany residence. The reason why the plaintiff eventually returned to Albany was because Ms Alcorn-West and her family moved overseas for one year. It is clear that the plaintiff feels welcome and very comfortable at Ms Alcorn-West's North Perth address. Mr Jones suggested that whilst the decision in relation to long‑term living arrangements was one to be made by the plaintiff, the probability of selling up and relocating to Perth remained high bringing with it all the contingent costs. He also noted that in the metropolitan environment the plaintiff would have better access to resources that would render the recommendation of provision of an electric shopping buggy more practicable.
Although Ms Jodrell assessed only the residence in Albany, she considered that the plaintiff did not use the whole of the Albany home. It was Ms Jodrell's assessment that the plaintiff's physical and domestic needs would be the same if she lived in a small unit. Dr De Felice and Dr Fong also noted that the plaintiff enjoyed residing with Ms Alcorn-West.
I consider that the plaintiff will remain at the North Perth address with Ms Alcorn-West's family and will not return to live alone at the Albany home.
The plaintiff's case was pleaded and the majority of the evidence has been led on the assumption that the plaintiff would live in Albany. However, her change of address does not change the plaintiff's basic needs for the future.
The decision in relation to the fate of the Albany home, however, is not a matter to be considered. It was acknowledged by the plaintiff in evidence that the garden at Albany was in an unfinished state prior to the accident and, accordingly, I do not accept Mr Jones' evidence that the Albany garden needs to be brought up to standard because there is no evidence that it was ever in good repair. Ms Jodrell gave evidence that the garden needed to be cleared approximately four times each year to ensure that it was not a fire risk. It is appropriate to limit the fire risk regardless of whether the plaintiff lives in the house or not, because the plaintiff has an obligation to ensure that there is no risk of fire until the plaintiff can make arrangements for the Albany home. I consider a "one‑off" four hour period to clear the block at a cost of $32.95 per hour is appropriate to address the risk.
Ms Jodrell estimated that 1.5 hours of internal cleaning would be required to assist the plaintiff. This would extend to the cleaning of the bathrooms and the cleaning of floor surfaces and heavy lifting. I consider that 1.5 hours would still be required at the North Perth premises because I accept Ms Jodrell's evidence of 1.5 hours domestic assistance per week based on the plaintiff's needs in a small house or equivalent. Internal domestic assistance of 1.5 hours per week at the quoted rate of $17.50 per hour is appropriate.
The plaintiff has already purchased a mobility scooter. Although it is submitted that Ms Alcorn-West would carry out all of the shopping needs for the plaintiff, Mr Jones gave evidence that a move to North Perth would give the plaintiff better access to resources and render the electric shopping buggy more practicable. Ms Alcorn-West has a small child and is expecting another baby. It is unrealistic to expect that Ms Alcorn-West will carry out all tasks for the plaintiff if the plaintiff is able to manage them herself and I find that the plaintiff could go to the shopping centre and attend appointments using a mobility scooter. A mobility scooter at an initial cost of $4,646 to be replaced every 10 years plus related maintenance costs is required.
The North Perth address would reduce the number of trips required in a maxi‑taxi. There is no evidence of the distance and number of trips that the plaintiff would be required to take from the North Perth address, however I accept that attendance at medical appointments, hydrotherapy and related exercise activities would be appropriate. I consider that two trips per week of a 10 kilometre radius would be sufficient at a cost of $2.90 flag fall and $1.50 per kilometre per trip.
I accept that the plaintiff will still require a walking stick at night and that although she will be able to receive assistance to move heavy items from place to place in the home there may be occasions when a manual wheelchair will be required. A wheelie frame to support her weight when moving around the house, together with the cleaning and bathing aids, are also needed.
I do not consider on the evidence that the plaintiff will require a walking tray mobile, more than one shower chair or hose, a custom sliding bath port, ramps, zone security installation, monitored security system or garden services at the North Perth address. Based on my findings, the following future non‑medical needs are appropriate:

Future non‑medical needs

NO. ITEM COST REPLACEMENT 10 YEARS TOTAL COST OVER 23 YEARS

1. Mobility Scooter "Shop Rider" 888A $4,646.00 Present value of single payment in 9 years multiplied by 0.5919
in 19 years multiply by 0.3305 $4,646.00
$,2749.98
$1,535.50

2. Mainframe
Mobility Scooter $100.00 1 year
(or $1.92 per week x 661) $100
& $1,269.12

3. Maxi Taxi –
$2.90 Flag Fall - $1.50km for 2 trips per week of 10km per trip 1 week
($35.80 x 661) $23,663.80

4. Walking Stick $25.00 10 years (present value in 10 years multiply by 0.5584 or 20 years by 0.3118) $25.00
$13.96
$7.80

5. Walker Dolemite Amigo $385.00 5 years ($148 per km x 661) $385.00
$978.28

6. Wheelchair – Guide Chair, remarkable hubs, extended wheel base $1,014.00 2 years (US$9.75 per week x 601) $1,014.00
$6,444.75
$5859.75

7. Wheelchair
Mainframe $100.00 1 year (or $1.92 per week x 661) $100.00
$1,269.12

8. Wheely Frame $130.00 10 years (present value for 10 years multiply by 0.5584 and 20 years by 0.3118) $130.00
$72.59
$40.53

9. Chair Raise $150.00 Life $150.00

10. High Kitchen Stool $194.00 10 years (present value for 10 years multiply by 0.5584 or 20 years by 0.3118) $194.00
$108.33
$ 60.49

11. Long handled dustpan and broom $25.00 5 years (or $25 ÷ 260 x 661) $25.00
$63.56

12. Inside supports $300.00 1 year (or $300 ÷ 52 x 661) $300.00
$3,183.46

13. Shower Chair $72.00 5 years (or $72.00 ÷ 260 x 661) $72.00
$183.05

14. Shower Hose $40.00 10 years (present value is 10 years multiply by 0.5584 or 20 years by 0.3118) $40.00
$22.34
$12.47

15. Toilet & Shower Rails $150.00 Life $150.00

16. Over pedestal toilet frame $90.00 10 years (present value multiplied by 0.5584 and 20 years multiply by 0.3118)
$90.00
$50.26
$28.06

17. Wheat Pack $25.00 2 years
(25 ÷ 104 x 661) $25.00
$158.89

18. External domestic assistance $4 hours x $35.00 $140.00

19. Internal domestic assistance – 1.5 hours @ $17.50 per hour 1 week
($26.25 x 661) $17,351.25

Total $72,713.34

Future medical treatment

I accept that, given that the plaintiff was born on 6 January 1944 and that she is therefore 61 years of age, her relevant life expectancy is another 23.62 years (Table 7: Assessment of Damages for Personal Injury & Death: Luntz (4^th ed)). The 6 per cent multiplier for 23 years is 661 (Table 2).
I accept that the plaintiff will continue to incur costs and expense in respect of her medical treatment and the management of her injuries as follows:

Future Medical Needs

1.Monthly General Practitioner consultations.
I accept Dr Kailis' evidence that the plaintiff attends for long consultations. $65.00 average per consultation each month is appropriate.

2.Physiotherapy at $100 per month and Hydrotherapy at $120 per month at a total cost of $220 per month.
3.Consumption of medication. This is to be determined by the parties and is not included in this judgment.

The sum for future medical treatment is a total of $285 per month. Applying the relevant weekly multiplier (661), the figure is $47,096.25. I accept that some further specialist psychiatric assessment may be required and include $3,000 for this requirement, making a total of $50,096.25.

Past gratuitous services

When the plaintiff was in Royal Perth Hospital and at the Shenton Park Rehabilitation Hospital Ms Alcorn‑West attended two to three times per day for five to six hours each day. She assisted the plaintiff in bathing, dressing, meals and general care and I accept that this assistance was, on average, between five to six hours per day. The plaintiff was admitted to hospital on 21 November 2000 and discharged on 27 April 2001. On discharge, the plaintiff lived with Ms Alcorn-West's family and continued to receive the same level of care and assistance. At a rate of $18.00 per hour, (being 15 per cent less than the commercial rate) for a total of 1,119 hours the sum of $21,582 is appropriate.
After a brief period in Perth, the plaintiff moved to Albany. Her two daughters came to Albany one weekend each month to provide assistance. This included meal preparation for the month, heavy cleaning, some gardening duties and home maintenance. I consider that 28 hours per month between 28 June 2001 to the date of judgment (54 months) at $504 per month is warranted, being $27,216. Past gratuitous services of $21,582 plus $27,216 being a total of $48,798 is allowed.
The plaintiff is entitled to interest on this amount at half the post judgment interest rate over the period since the accident (Brasser v Graham [1985] WAR 180). The appropriate interest rate is 6 per cent x 0.5 x 5 years of $48,798 being $1,463.94. This is a total sum of $50,261.94.

Future gratuitous services

The plaintiff has been living at the North Perth address with her daughter since June 2005. Although she will continue to need assistance, the level of care will be slightly reduced because purpose built rooms have been set up and home maintenance and spring cleaning over and above the level required by Ms Alcorn-West and her family will not be required. Taking into account the evidence in relation to the gratuitous services provided by Ms Alcorn‑West, I consider that an amount of 20 hours per month, being five hours per week, for the rest of her natural life is appropriate. Given that the plaintiff now resides with Ms Alcorn‑West, I consider it very unlikely that she will require nursing home care or aged care and, given her independent living skills and her desire to remain independent I find that she will remain in the North Perth family home. A sum of $59,490 (shows x $18 x 661) less 6 per cent contingencies being $55,920.60 for future gratuitous services is allowed.

Special damages

The plaintiff submitted that costs were incurred per fortnight for rent of a Churchlands property from 16 December 2003 to 15 June 2004, a period of 26.14 weeks. Counsel requested that this item be deferred, pending possible agreement between counsel. Accordingly, no order is made in relation to special damages.

I award the following sums:
General Damages  $67,000.00
Future Non‑Medical Needs  $72,714.00
Future Medical Treatment  $50,096.00
Past Gratuitous Services  $48,798.00
Future Gratuitous Services  $55,920.00
Special Damages   NIL
Total$294,528.00

NO.	ITEM	COST	REPLACEMENT 10 YEARS	TOTAL COST OVER 23 YEARS
1.	Mobility Scooter "Shop Rider" 888A	$4,646.00	Present value of single payment in 9 years multiplied by 0.5919 in 19 years multiply by 0.3305	$4,646.00 $,2749.98 $1,535.50
2.	Mainframe Mobility Scooter	$100.00	1 year (or $1.92 per week x 661)	$100 & $1,269.12

3.	Maxi Taxi – $2.90 Flag Fall - $1.50km for 2 trips per week of 10km per trip	1 week ($35.80 x 661)	$23,663.80
4.	Walking Stick	$25.00	10 years (present value in 10 years multiply by 0.5584 or 20 years by 0.3118)	$25.00 $13.96 $7.80
5.		Walker Dolemite Amigo	$385.00	5 years ($148 per km x 661)	$385.00 $978.28
6.		Wheelchair – Guide Chair, remarkable hubs, extended wheel base	$1,014.00	2 years (US$9.75 per week x 601)	$1,014.00 $6,444.75 $5859.75
7.		Wheelchair Mainframe	$100.00	1 year (or $1.92 per week x 661)	$100.00 $1,269.12
8.		Wheely Frame	$130.00	10 years (present value for 10 years multiply by 0.5584 and 20 years by 0.3118)	$130.00 $72.59 $40.53
9.		Chair Raise	$150.00	Life	$150.00
10.		High Kitchen Stool	$194.00	10 years (present value for 10 years multiply by 0.5584 or 20 years by 0.3118)	$194.00 $108.33 $ 60.49
11.		Long handled dustpan and broom	$25.00	5 years (or $25 ÷ 260 x 661)	$25.00 $63.56
12.		Inside supports	$300.00	1 year (or $300 ÷ 52 x 661)	$300.00 $3,183.46
13.		Shower Chair	$72.00	5 years (or $72.00 ÷ 260 x 661)	$72.00 $183.05

14.	Shower Hose	$40.00		10 years (present value is 10 years multiply by 0.5584 or 20 years by 0.3118)		$40.00 $22.34 $12.47
15.	Toilet & Shower Rails	$150.00		Life		$150.00
16.	Over pedestal toilet frame	$90.00		10 years (present value multiplied by 0.5584 and 20 years multiply by 0.3118)		$90.00 $50.26 $28.06
17.	Wheat Pack	$25.00	2 years (25 ÷ 104 x 661)		$25.00 $158.89
18.	External domestic assistance	$4 hours x $35.00		$140.00
19.	Internal domestic assistance – 1.5 hours @ $17.50 per hour	1 week ($26.25 x 661)		$17,351.25
Total	$72,713.34