Avsar v Richwood

Case [2019] WADC 51

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   AVSAR -v- RICHWOOD [2019] WADC 51

CORAM:   O'NEAL DCJ

HEARD:   11-15 MARCH 2019 (Written submissions filed 18 and 19 March 2019)

DELIVERED          :   10 MAY 2019

FILE NO/S:   CIV 1557 of 2013

BETWEEN:   JENNIFER PATRICIA AVSAR

Plaintiff

AND

PAUL LEE RICHWOOD

Defendant


Catchwords:

Injury on bus - Negligence - Causation - Damages - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s 5C
Motor Vehicle (Third Part Insurance) Act 1943 (WA), s 3C(4)

Result:

Judgment for plaintiff, damages assessed

Representation:

Counsel:

Plaintiff : In person
Defendant : Mr C C Rimmer

Solicitors:

Plaintiff : Not applicable
Defendant : Sparke Helmore Lawyers

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

Avsar as Administratrix of the estate of Antoinette Maria Cowan v Westland Healthcare Ltd [No 6] [2007] WADC 27

Avsar v Binning [2009] WASCA 219

Avsar v Public Trustee [2010] WASC 11

Avsar v Public Trustee [2011] WASCA 77

Panagoulias (by his Next Friend Fiona Averil Panagoulias) v The East Metropolitan Health Service [No 4] [2017] WADC 118

O'NEAL DCJ:

  1. Introduction

  1. On 12 May 2012 the plaintiff was a passenger on a Red Cat bus.  The defendant was the driver of the bus.  When the defendant braked suddenly at the intersection of Stirling Street and Ellen Street in Fremantle, the plaintiff was thrown forward out of her seat and into the ticketing machine located at the front of the bus.

  2. In this action the plaintiff alleges that she was injured when the defendant breached a duty to take reasonable care for the safety of passengers.

  3. The defendant has admitted that the sudden application of brakes was in fact negligent, and that negligence caused the defendant to be thrown forward out of her seat, and into the ticketing machine (the bus accident).

  4. What is in issue in this action is whether the accident caused the plaintiff to be injured, and if so, in what way and to what extent.  A further question arises as to what loss and damage, if any, were caused as a consequence of any proved injuries.

  1. The claimed injury, loss and damage

As pleaded and particularised

  1. By her statement of claim filed in June 2013 and particulars of damages the plaintiff claims that as a consequence of the bus accident she suffered the following physical injuries:

    (a)a concussive head injury;

    (b)right sided facial and dental injuries;

    (c)soft tissue injury to the cervical spine;

    (d)facet joint strain;

    (e)rotator cuff injury to the right shoulder; and

    (f)injury to the right eye.

  2. As a consequence of these injuries, according to the statement of claim filed in June 2013, the plaintiff says that she suffered:

    (a)pain, stiffness and tenderness of the head, neck, back, jaw, mouth, teeth, face, both shoulders and right eye;

    (b)limitation of movements of the head, neck, back, face, shoulders and right eye;

    (c)blurred vision;

    (d)nervous shock;

    (e)headaches and discomfort together with sleep disturbance.

  3. The plaintiff claims that the injuries she suffered in the bus accident left…

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AGLC
Avsar v Richwood [2019] WADC 51
Case
[2019] WADC 51
Decision Date

CaseChat Overview and Summary

In the District Court of Western Australia, Avsar sued Richwood over injuries sustained in a bus accident. The court was tasked with determining the extent of the plaintiff's injuries, their causation, and the appropriate damages, particularly in light of the plaintiff's prior medical history and the credibility of her evidence. The case hinged on whether the bus accident caused or exacerbated the plaintiff's injuries and whether the plaintiff's pre-existing conditions and vagueness in her testimony affected the determination of her injuries and subsequent losses. The court had to weigh the plaintiff's claims against the evidence provided, including medical records and the plaintiff's own testimony, which was often contradictory and difficult to substantiate.

The court found that the plaintiff's claims were largely unsubstantiated due to the lack of credible evidence linking her injuries to the bus accident. The plaintiff's medical history revealed significant health issues prior to the accident, and her testimony was often inconsistent and vague, making it difficult to determine the true extent of her injuries and their causation. The court was particularly critical of the plaintiff's failure to provide clear and consistent evidence regarding her injuries, which undermined her claims for damages. The court concluded that the plaintiff had not met the burden of proof required to establish her claims, and as such, the award of damages for non-pecuniary loss was below the threshold set by statute, resulting in no damages being awarded for non-pecuniary loss.

The court's decision reflected a cautious approach to the plaintiff's claims, given the lack of clear evidence and the inconsistencies in her testimony. The plaintiff's claims for general damages were deemed insufficient to meet the statutory threshold, leading to no award for non-pecuniary loss. The court will hear from the parties regarding the final orders to be made.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Background As several of the medical practitioners who have seen the plaintiff have observed, the plaintiff is often vague about details. What follows is taken from what I have been able to glean from what the plaintiff said at trial, from some of the medical records, and from published reasons of various courts that the plaintiff has appeared before. The plaintiff was born in September 1950, in India. She moved to Australia many decades ago. She was employed in the shipping industry, working for P&O for five years, until about 1978. She left that employment 'because of the birth of my second child'. It is apparent that she is proud of the job that she did. She describes herself even now as a 'shipping officer'. Her husband of many years holds Turkish citizenship, presumably together with Australian citizenship. I mention that fact because from the evidence at trial, it is apparent that the plaintiff and her husband have made their lives between Australia and Turkey. It seems that they now spend most of their time in Turkey, normally travelling to Australia only to visit family, mainly children and their families, here. The plaintiff and her husband were involved in a meat exporting business in South Australia that started 'just before … 1994' and finished in 1997. The plaintiff was involved in that business in an administrative capacity, utilising some of her experience from the shipping industry. She and her husband, I was told, were the licensees of the export business. Based on what the plaintiff said in her evidence, it is not in fact clear that she and her husband (as opposed to her children or some of them) had any ownership interest in the meat export business. No records were produced that showed that the plaintiff personally derived any income or profit from this business. The meat export business finished up when it lost its meat export licence in 1997. The plaintiff has not worked since that time. From at least 1995 however, the plaintiff became heavily involved in her mother's affairs. Her mother was placed in a nursing facility in 1994. The plaintiff removed her from the facility in 1995 and took her to live in South Australia. The plaintiff's mother died in South Australia in early 1996. Her mother's husband, John Robert Cowan, died in 2010. I should observe that the plaintiff does not accept that Mr Cowan was in fact her mother's lawful husband. From about 1996 the plaintiff became involved in a number of legal actions. These actions related to her mother's death, claims in respect of her mother's estate, and claims involving the estate of John Robert Cowan. The plaintiff acted in person in proceedings in this court, the Supreme Court of Western Australia and the Court of Appeal, not, it must be said, with success. I will refer to these matters in more detail later when I come to consider some of the plaintiff's claims for economic loss.The plaintiff's medical history prior to the bus accident Medical records were tendered into evidence that showed that the plaintiff experienced some significant health problems in the years prior to 2012.

Evidence

Evidence Before The Court

The plaintiff's evidence about her claims Apart from the understandable immediate pain to the plaintiff's face and neck caused by the bus accident, it has been difficult to make sense of the plaintiff's various claims of injury and loss. The particulars of loss that were allowed to be advanced were nearly as vague as the plaintiff's testimony on those subjects. The plaintiff was in the witness box for nearly two days. It cannot be said that she gave evidence for two days. Much of her time was spent trying to advance arguments, or make vague assertions (frequently based on hearsay) and generally seeking to re-litigate the several causes she has previously advanced and lost. Although frequently reminded of the purpose of a trial, and the need for proof of the claims she was making, the plaintiff did not make use of that information. On the few occasions when what she had to say was directed to some fact in issue, and she had or seemingly had personal knowledge of the matter, that fact was often surrounded by a host of irrelevancies, and promptly contradicted or at least thrown into doubt by some further answer. When giving evidence or addressing the court it was unusual for the plaintiff to allow someone else to finish a sentence. There were only rare occasions when she would answer a direct question with a responsive answer. At one stage of her stint in the witness box when I was trying to understand her claim for lost wages or loss of employment opportunity, she told me, 'I'm a shipping officer. I do customs and shipping documentation from the meat export trade …'. I was slightly confused by the use of the present tense and so I asked, 'Are you still working?' This answer, taken from the transcript, affords some insight into the nature of the plaintiff's claims and the difficulty of extracting something probative from what she had to say:Are you still working? - - - Your Honour, we had a very good meat export business which I - I can still get back to it because my licence is with Ausmeat Sydney. And I'm hoping that - my husband's hoping to get the kids back on it because it was an excellent business that we had simply lost. It was - slipped from hands so to speak and I want to get back to it but I'm a very experienced shipping officer, your Honour. And we – we have lost that and when I came to Perth all I did was run around from one court to another court to another court with all these grounds of administration. I couldn't do my administrative duties after the bus accident. I just let everything go. They cheated me. They did everything wrong to me after I got injured because they knew I could not pursue them again. So I lost a fair bit of - I suffered economic and financial loss as it was beyond me. I just couldn't do anymore. I was finding it hard to even prepare documents. My children were getting tired of me. They were doing it for me. Apart from caring for me and doing all those jobs they were made to do all the documentation when I told them what to do. I just couldn't do anymore. I lost - I lost my confidence to - to do - to do the things I used to do before the accident. I couldn't function. I couldn't go forwards. I couldn't look after my own family. I had to depend on my husband who had recovered from his illness and I had to depend on him. And he did a very good job, your Honour. It was too long, your Honour, too many years of hell on earth to be facing here in Perth just to get justice. I - I can't see how I can fully recover but I do need some future care more than now as in I can - I can - I can assist the kids to get back to the meat export business, your Honour. I had - I had very good orders and customers. They're having a little bit of trouble in Australia right now because they took over the meat export business and they started to send live sheep overseas. But now they've done - damaged that industry and they're hoping that Australia will get back to frozen meat again, so one hope I've got. I want that licence to go on. Apart from that, your Honour, we were manufacturers of pet food one time in South Australia and I was licenced with the (indistinct) authority with the National Parks and Wildlife Service and the meat export we had. So I've done my fair share I believe. I don't like to be idle, your Honour. I like to do things. I'm hoping that I can get back to that meat export because it's - because I can at least tell them what to do and guide them along. It's been a real waste - my - I've - I've wasted my life in Perth for too long. I can't see myself just not doing anything, so to speak. I need to do something to get back on my feet, to get going again. With or without help from anyone I'm going to do it, your Honour. I hope you understand where I'm coming from. I would appreciate if you could understand what I went through after the accident, after being operated on three times. It was horrendous. And then the worst thing is to have to depend on your children. You don't want that for anyone. You want to be independent. I couldn't be independent, your Honour, constantly telling them, 'Come and do this and do that.' I suffered too much for these - from this first thing which was amazing because I just thought it would all go away. But nothing was going away, it was just getting worse and worse and I wasn't getting any help and that's what bothers me. I got a little bit of help with the arm, yes. I'm grateful for that. As far as the - my mother's estate, I lost - I lost all trust in the system so to speak because I had one woman calling me 15 minutes before a hearing to get rid of my injunction. How am I supposed to enter a court from Fremantle to Perth in 15 minutes? So I just lost trust in the system when she started to get her way and get orders as she so pleased. I didn't trust the system after that, your Honour. I knew I'd lost then because I couldn't do it myself. There's no way I could proceed with that and I had to leave it all. My mother's estate was lost. She suffered bad losses that time, your Honour. They even took all my personal belongings without my permission. I think I've put all that in - in court anyway. I've - - -

Decision

Reasons for decision

Conclusion I observe that the award of $3,000 for general damages falls beneath the threshold provided by s 3C(4) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA). It follows that no damages are to be awarded for non‑pecuniary loss. I will hear from the parties with respect to the orders to be made.

Ratio Decidendi

Legal Principle Established

Consideration of the claimed physical injuries In the course of her examination-in-chief the plaintiff tried to tender into evidence a document prepared by the 'front office co-ordinator' from a dental practice, with costings for the replacement of two upper and two lower teeth. I tried to get some explanation from the plaintiff as to what evidence there was that the bus accident had caused her to lose teeth. I asked whether there was some report, for example, from any dentist or dental surgeon. To this suggestion the plaintiff responded saying, 'well, I don't know how I can get that from some strange person'. I then asked her whether there was anything in the medical records that mentioned something about the bus accident causing a problem with her teeth. To this she said:It says, 'facial', this one, 'facial', you know 'facial injuries', when I hit my head on the ticketing machine, it says 'facial injuries', because at that point in time, when I went to Fremantle Hospital, your Honour I did not have any problem with my tooth as such, it was only later on. It took about, say three or four weeks before I noticed something was coming out from the lower part. And it was my teeth. I had a couple missing on this side, but I didn't bother with that, but the lower one bothered me a lot. It just fell out. And I never had that problem before, your Honour. The plaintiff was cross-examined with respect to this answer. The series of questions and answers provides insight into the plaintiff's style of answering questions:Can I suggest to you that you had had problems before the bus accident with your teeth falling out? - - - I never had my lower teeth falling out ‑ ‑ ‑You don't agree with that? - - - On the right hand side, you know.Not on the right hand side? - - - The right, yes on the right? I intervened at this stage:O'NEAL DCJ: Sorry, I'm not really following that. Did you have problems with your teeth before the bus accident? - - - Well, I had on the left teeth. I fixed it, your Honour - - -What was the problem you had? - - - Which had nothing to do with the bus accident on the left. Counsel for the defendant persisted:RIMMER, Mr: So you had problems on the left with teeth falling out, is that correct? - - - No, I removed them and I put new fillings and things in there.Okay. But nothing on the right? - - - Nothing was happening on the right, no. The plaintiff was then taken to the record of her attendance in the Fremantle Hospital on 17 August 2011. There, among other things, the plaintiff complained of tooth pain. She had apparently not seen a dentist in years. The record continues:Offending tooth is canine right lower jaw, missing lots of teeth. Tooth vcry loose and painful to touch. The transcript records two pages of cross-examination where the plaintiff was confronted with the inconsistency between this record and her earlier testimony. Doing as best I can, her evidence appeared to be to the effect that when she had previously denied any problems with her teeth prior to the bus accident, she was only referring to the specific teeth that she was now complaining about.