Avsar v Richwood - [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:

Introduction

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.
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.
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).
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.

The claimed injury, loss and damage

As pleaded and particularised

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.
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.
The plaintiff claims that the injuries she suffered in the bus accident left her with a list of permanent partial disabilities including:
(a)pain, stiffness and tenderness to the head, neck, back, jaw, mouth, teeth, face, both shoulders, right arm and right eye;
(b)limitation of movement of the head, neck, back, jaw, face, mouth, teeth, both shoulders, right arm and right eye; and
(c)headaches and discomfort together with sleep disturbance.
At trial the plaintiff sought to extend her claimed injuries, disabilities, loss and damage, to include a broken ankle suffered in a fall more than two years after the bus accident. That injury was not pleaded but is mentioned in passing in the most recent version of the plaintiff's particulars of damages.
The plaintiff claims that as a result of her disabled state, caused by the bus accident, she has been dependent upon her daughter, husband, and son for gratuitous services. It is asserted that 5,588 hours of gratuitous services were provided. At an hourly rate of $27, the claim for this is $150,876.
In the plaintiff's particulars of damages filed on 19 June 2014, a claim was made for future care for the 'harder domestic duties for the next two years'. A claim was made for 30 hours at $27 per hour, totalling $42,120. Somewhat confusingly, this is immediately followed by a claim for 'two years of assistance or $84,240 for future gratuitous services'.
There is a claim for a variety of past medical expenses, including costs associated with surgery that was performed to the plaintiff's right shoulder.
In her amended particulars of damages, the plaintiff says that she will require future medical services with their consequent expense, including a general practitioner (GP) visit every two months, physiotherapy every two weeks, a visit to an orthopaedic specialist every three months, and a pain specialist every four months, for the foreseeable future. There are costs claimed for future medications. All of these items are said to warrant a claim of $40,000.
A more expansive claim for future medical expenses is made in her amended statement of claim dated 17 March 2016. Although the plaintiff's broken ankle and its sequelae are not pleaded to have been caused by the bus accident, the particulars in this document allege that:
The plaintiff will continue to incur costs and expense with respect to medical treatment and management required for accident injuries in the future. The plaintiff claims ongoing review with the treating medical practitioner, a further course of physiotherapy, remedial massage, referral to an orthopaedic shoulder specialist, referral to a pain specialist, possible cervical facet joint and greater occipital nerve blocks, surgery including bone grafts, ankle block, arthroscopy, and the removal of screws, possible teeth reconstruction and the continued consumption of analgesic and anti‑inflammatory medication, and claims a global amount of $75,000.
A substantial claim is made for economic loss, past and future, together with loss of superannuation. That arises from the pleaded allegation that 'prior to the date of the [bus] accident the plaintiff was in the process of seeking re-employment as a shipping and customs officer in order to have the necessary funds to effectively facilitate the role of Administrator of her mother's estate…'. I will refer to these claims for economic loss in greater detail when I refer to some of the background in this matter.
For now it is sufficient to say that in addition to claiming a loss of earnings and earning capacity of '$40,000 per month from … 16 May 2012', the plaintiff asserted that injuries suffered in the bus accident meant that she was '... unable to effectively facilitate the role of Administrator of her mother's estate for the period 16 May 2012 to the present …' and she claims damages 'for and on behalf of her mother's estate for the period …'.
By its substituted defence, the defendant put the plaintiff to the proof of the claimed injuries, and alleged that any such injuries were caused or materially contributed to by the plaintiff's pre-existing and unrelated health complaints. There is an extensive list of these set out in the defence. Again, I will refer to these in greater detail when describing the background of these matters.

The plaintiff's injury claims generally

There is no doubt that when the bus braked heavily the plaintiff was thrown forward from her seat, striking the right side of her face on the ticketing machine. Little else is certain.
The plaintiff was taken by ambulance to Fremantle Hospital and held overnight for observation. There is little doubt that as a consequence of this accident the plaintiff suffered pain to the right side of her face and neck, and probably also some soft tissue injury to her cervical spine. All of that is consistent with records made when the plaintiff attended the Emergency Department (ED) of the Fremantle Hospital on 16 and 17 May 2012.
The claimed injuries then began to multiply. On 18 June 2012 the plaintiff attended her general practitioner complaining of 'blurred vision in her right eye' and 'terrible headaches' since the accident. On 12 September 2012 a note recording that history was sent to a lawyer that the plaintiff had by then retained, Mr Simon Walters, at Mr Walter's request.
In January 2013 however, the plaintiff presented to her general practitioner with pain and limited motion in her right shoulder. Subsequent examination revealed this to be a torn rotator cuff.
In November 2013 Mr Robert Petanceski, an orthopaedic surgeon, carried out surgery to repair the tear in the rotator cuff. The plaintiff subsequently underwent physiotherapy to help mobilise her right arm.
The plaintiff claims that the torn rotator cuff was caused by the bus accident and that she continues to suffer with pain and limitation of movement in that shoulder.
While in Turkey in 2016 the plaintiff fell and severely fractured her left ankle. She received surgical treatment in Turkey to fix the fracture with metal work. On her return to Western Australia in 2017 the metal work fixings were surgically removed from her left ankle. The plaintiff uses a stick to walk. This injury and the two surgeries does appear to have been disabling, and it continues to be disabling to some extent.
The plaintiff blames the bus accident for the fall that broke her ankle and its consequences, telling me that that injury, 'only came as a consequence of me not being able to balance from the back injury …', which she says was caused by the bus accident.
Although in June 2013 the claim was for 'dental injuries' and 'pain, stiffness and tenderness of the … teeth', the plaintiff now claims that the injuries which she received in the bus accident caused her to lose the teeth in her lower right jaw.
The claimed 'blurred vision' is now a claim that the plaintiff suffered a reduction of vision in her right eye, so that she now has to wear glasses.

Background

The plaintiff's personal history

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.
In these reasons, when referring to the medical notes, where common medical abbreviations or acronyms are used I have added the meaning in brackets, at least on the first use of that abbreviation or acronym.
On 27 October 2001 the plaintiff presented to the Fremantle Hospital ED complaining of facial pain from a toothache. The clinical notes record intermittent pain over the previous eight weeks in her left lower molar. She is recorded as telling the doctor that the tooth had been problematic for a while, and she had been taking Panadeine Forte. She was unable to recall when she had last seen a dentist. The examination notes are somewhat difficult to read, but they refer to the tooth being wobbly. The plaintiff was 'strongly advised to see dentist', and given analgesia.
In her evidence-in-chief the plaintiff sought to deal with an allegation in the defence that her various injuries related to falls that she had, and were unrelated to the bus accident. She said:
You see, I'm being accused of falling down, but I didn't fall down prior to this accident because of anything to do with me, it was the Fremantle Council, it had some pavers that were protruding on the road and that's how I fell.
The plaintiff gave evidence-in-chief about her relative physical fitness before and after the bus accident:
Your Honour, before the accident, I was doing almost everything. I was very fit person. I did have a little bit of falls with the footpath but I was very active. I did all my duties as was requested of me.
The truth is more complicated than the plaintiff suggested in these passages.
Later, in her evidence-in-chief, the plaintiff told me that, 'I was quite capable before the – before the accident'. I asked the plaintiff 'which accident?' To this she responded, 'this first accident. I only had one accident. I mean, the bus accident. It was – there's only in 2007 when I fell on the pavement that I – I got badly injured on my chest and my face and whatever. And that was five years before the accident'.
In April 2002 the plaintiff's GP referred her for a CT scan of her lumbar spine, because of a condition noted as 'chronic low back pain'. It emerged that this problem seems to have begun with a fall in 2001. In cross‑examination the plaintiff was unwilling to admit that this accident had caused back pain that lasted any significant length of time. It was cured the plaintiff said by a cortisone shot 'that fixed me up'.
The plaintiff's medical records include a 'to whom it may concern' letter from a Dr Patrick Hertnon on behalf of the Executive Director, Medical Services, dated 18 September 2002. That letter records an attendance at the ED, presumably of Fremantle Hospital on 8 September 2001 in these terms:
following an alleged fall on 6 September 2001. She complained of having landed on her bottom when she fell, of slowly increasing local, lower lumbar spine pain, and of a graze to the right knee. Pain was unresolved by analgesia.
On examination Mrs Avsar was noted to have problems moving around due to pain. No deformity was seen or felt. There was no bruising. Mrs Avsar was tender over the lower lumbar spine - L3 to L5, with a decreased range of movement in all directions secondary to pain … she had a full range of bilateral hip movement and normal power, sensation and circulation in all limbs. There was no radiation down the leg due to movement, and no neurological involvement at the time.
Mrs Avsar was referred to our physiotherapists by Dr Nasso Theodosiadis, UGP, Fremantle, for treatment of recurrent low back pain, and was assessed on 21 March, 2002. As at 9 September, 2002 she was still being seen for management of her long term problem. …
In September 2002 the plaintiff was referred for physiotherapy for what was described as 'current low back pain'. The physiotherapist that was treating the plaintiff referred to the plaintiff as 'currently being seen by myself for management of her long term problem', that being back pain.
In November 2002 lawyers retained by the plaintiff, Piu & Associates, wrote to a Dr Angela Davy asking for a report on behalf of the plaintiff, 'who sustained injury pursuant to an accident on 6 September 2001'. On 3 December 2002 they received a response from Dr N Theodosiadis who it appears was a member of the same medical practice as Dr Davy. Dr Theodosiadis reported:
When seen by a colleague on the day of her accident (fall on pavement on 6 September 2001) she had back pain and stiffness and sore knees. (She was slightly tender of her left lumbar area). There were abrasions and bruises over both knees (right greater than left) and an abrasion over the dorsum of the right foot. She was diagnosed as having soft tissue injuries (it was recorded in her notes that she had no previous history of a back problem).
An x-ray of her lumbosacral spine done 16 November 2001 showed degenerative changes, mainly in relation to left L4/L5 facet joint with small osteophytes at L3, L4 and L5 indicating degenerative changes in the discs at L2/3, L3/4 and L4/5.
She still had continuing low lumbar and left sacral pain on the 16 November 2001, but this had responded well to Naprosyn.
By 9 January 2002, she still had left lumbar and sacral pain. Also there was pain over the right ankle on and off since the accident. (An x-ray of her right foot and ankle was normal.)
On the 5 February 2002 she was referred for physiotherapy.
On the 19 April 2002 she was still experiencing constant low back pain. She was slightly tender over the left lumbar area.
A CT scan done on 26 April 2002 showed mild disc bulging L3/4 and L4/5 but no nerve root involvement. There were degenerative changes bilaterally at facet joints L3/4 and L5 S1 and on the left at L4/5. In May 2002 she was to commence hydrotherapy at Fremantle Hospital.
When seen 16 August 2002 her back was stiff all the time.
She had pain in the left lumbar area on and off but hardly any pain while on Naprosyn.
(When last seen on 23 October 2002 she was continuing physiotherapy. She was having continuing pain in the left lumbar region, on and off, which responded well to Naprosyn. She was referred to an orthopaedic surgeon to assess if she was suitable for facetal joint steroid injections. Her Naprosyn and physiotherapy would continue.)
She sustained a lumbosacral soft tissue injury and appears to also have injured the facet joints on the left side and aggravated underlying osteoarthritis in these joints. These may respond to steroid injections. I would prefer an orthopaedic review before commenting on long term prognosis.
In April 2003 the plaintiff was referred to an orthopaedic surgeon, Peter Bath. He organised a facet joint injection. Following that he reported on 1 May 2003 to Dr Theodosiadis, in these terms:
Mrs Avsar underwent a facet joint injection to the L4/5 level on the left, on the 3 April. Mrs Avsar found this quite beneficial and says that she can now get about and do a lot more. There still are some symptoms of pain in the back and a heavy feeling in the left leg but certainly function is much better than before and I haven't gone ahead and made arrangements for the lower level to be injected.

This it appears was the shot the plaintiff said 'fixed me up completely'. Despite that claim, the records of Fremantle Hospital showed that the plaintiff had an x-ray of her lumbar spine in June 2003. The plaintiff told me that there was 'nothing wrong then' but that she 'just wanted to make sure … the x-ray had healed it, because it did fix me up properly'.
The documents that went into evidence included a copy of the plaintiff's entire medical notes from the Hospital General Practice (HGP) in Fremantle. These records were provided to the plaintiff's then solicitor, Simon Walters, on 25 July 2014, at Mr Walter's request. Most of these handwritten notes are very difficult to decipher. One legible note from the records provided to Mr Walters, for 26 June 2003, stands out. It records that on that day:
Mrs Avsar's daughter came in to the … and brought a prepared letter from her Mum. Jackie (our receptionist) brought me the letter. It was a request from Mrs Avsar to provide her with a medical certificate for the next 6 to 8 weeks. There were also two printed statements with my name at the bottom of the page that I was expected to sign. I told Jackie to tell the daughter I could not sign anything or provide any certificate without actually seeing her mother. Mrs Avsar's daughter was told this by Jackie and she left with the letter.
Subsequently Mrs Avsar's x-rays arrived and I asked the staff to … ring and make an appointment with her. The person who rang Mrs Avsar's home was told that she had gone away for several weeks (went over east for 6 to 8 weeks).
Under the circumstances I could not provide any form of certificate.
On 4 August 2003 the plaintiff wrote to Dr Theodosiadis,
Dr Dear Theo,
I would appreciate a short note from you to advise the Family Court that I am currently unable to physically attend the hearing listed for 6 August 2003.
I am currently being cared for by my husband at home and expect to return to WA in the first week of September.
My daughter holds my power of attorney and is able to act for me to also arrange for my next appointment with you any time or date after 6 September 2003, to advise me the results of my tests done, and to consider whether I need to take my second injection attending at SKG Radiology, Fremantle.
The patient's medical records include a referral from her then general practitioner, Dr Theodosiadis, in September 2003. The referred problem is described as 'chronic lumbar pain due to spondylosis. Previous L4/L5 facet joint injection at your hospital, previously had physiotherapy. I would like you to please arrange hydrotherapy for her soon'.
On 24 October 2003 she was referred for further hydrotherapy for back pain. When it was put to the plaintiff in cross-examination that she had in fact been referred for that hydrotherapy because of back pain she answered 'no, I requested that'. She explained that 'just generally I was in pain, you know. I requested that, it was soothing'.
The letter from Dr Theodosiadis described the need in these terms, 'seen previously with lumbar pain, requires further hydrotherapy'. Despite that fact being drawn to her attention, the plaintiff insisted that this referral, some 16 years ago, was not required because of back pain, because she was not suffering from that anymore.
At the time of this last referral the plaintiff was still being prescribed Naprosyn, an anti-inflammatory drug. She was asked, 'for your back pain?' and she answered:
Naprosyn, yes, for pain'.
Yes? - - - not particularly the back because it was fixed up.
In 2004 the plaintiff was troubled by some gynaecological problems. The doctor set out the plaintiff's past history of chronic back pain and depression. Her current medications were then Zoloft and Naprosyn 500 mg.
On 29 October 2005 the plaintiff presented to the Fremantle Hospital ED. The Adult Triage Assessment records the plaintiff's presenting history on 29 October 2005 in these terms:
Injury - left upper limb - fell in road in Freo this PM recalls event? Tripped over O/A [on admission] tearful, hit head, no LOC [loss of consciousness], abrasions to forehead and swelling to lip, pain to left arm … reduced sling applied, abrasions to knees …
The clinical record however describes this history:
Tripped in the street today.
Hit left side of head.
- LOC - 5 minutes - witnessed by daughter.
V. difficult historian - tearful and anxious ++
No eye contact - v quiet voice.
V. unclear ĉ [with] site of pain …
… deformity shoulder + arm/hand
- refusing to move
Complaining that she is tender on whole arm
- pulling my hand away on examination
Refuses to make a fist
- using other hand to make fist
The progress notes record the daughter's observations in more detail, '[the plaintiff] tripped and hit head-daughter stated LOC for 5 min, shaking and not talking…'.
By the time the plaintiff was seen by the orthopaedic fracture registrar on 7 November 2005, the difference between loss of consciousness caused by the fall and no loss of consciousness had been mediated in this way:
This 55 year old lady fell in a shopping centre onto her left side, hitting her head, knee, and left shoulder. She does not remember exactly what happened, but she is quite sore about 10 days down the track and is unable to elevate her left arm. I suspect she may have a rotator cuff tear and have referred her for an ultrasound scan.
It appears that this particular fall caused what was described as a frozen 'left shoulder'. The plaintiff told me with respect to this, 'I don't know if I'd even felt anything before, it was without pain … I mean you could still move it but you could feel it was sort of stuck there … but I could still perform a few things without – there was no pain'.
The plaintiff's stoical description in evidence is not consistent with any of the records referred to above, nor with the history and examination notes made in a CPAC referral to an outpatient clinic:
Fell last Saturday and went to ED [Emergency Department] with injury left shoulder, arm and elbow/x-ray is normal. Still severe pain around left shoulder and upper humerus with very limited shoulder movement. Severe pain not responding to treatment.? Still possible fracture/dislocation/internal injury to shoulder/needs further investigation. Please see next few days.
The plaintiff was cross-examined about what exactly the consequences of the frozen left shoulder were. She was asked:
… you could still perform activities with your right hand and arm? - - - well, yes, I was a champion swimmer once.
Yes. Ok? - - - and a diver.
But you wouldn't - you couldn't do things where you needed both hands, for example, to lift something up off a bench or something like that? - - - It depends what it is. Because I was lifting boxes in the P&O office and you got equal pay to men, they made me do it all.
The plaintiff was then reminded that she had not worked for P&O since about 1978. Her answer to this was, 'Yeah, whatever. Yeah'.
Subsequently she had injections into her left shoulder on 6 December 2005 and 1 March 2006.
In September 2006, the plaintiff had another fall when she either fell into a drain (according to contemporaneous medical records), or over a drain, or tripped on the lid of a drain, or she tripped on the pavement at the edge of the road (according to evidence from the plaintiff).
As a result of this fall the plaintiff experienced pain in her right shoulder and both of her knees. The progress note for the plaintiff's attendance on this occasion records, 'Can lift right arm to shoulder height. Also pain in left shoulder, longstanding. Fell on 7 September 2006 ?Rotator cuff tear. For x-ray, US [ultrasound] and review'.
The plaintiff's medical records include a letter dated 13 September 2006 from Fremantle Hospital Radiology Department, reporting to a referring doctor, William Morgan of HGP, in Fremantle. The letter refers to the plaintiff's right shoulder, in these terms:
Clinical notes:
Trauma suggestive of a cuff tear.
Findings:
There is mild acromioclavicular joint degenerative change. There is no fracture or bony destructive process. The acromion is of type II configuration.
An ultrasound of the right shoulder on 27 September 2006 did not identify a tear of the rotator cuff, although the report notes 'subacromial bursitis' and 'enthesopathic changes…in the right greater tuberosity'. 'Enthesopathy' means a disorder of the muscular or tendinous attachment to the bone': Dorland's Illustrated Medical Dictionary (28^th ed, 1994) (Dorland's Medical Dictionary).
On 15 March 2007, while the plaintiff was in the middle of a proceeding brought in this court with respect to her mother's death (Avsar as Administratrix of the estate of Antoinette Maria Cowan v Westland Healthcare Ltd [No 6] [2007] WADC 27), she presented to Fremantle Hospital ED. The presenting history is recorded there in an Adult Triage Assessment as 'neurological - weakness - in all limbs. Patient presents c/o [complaining of] dizziness and weakness to all limbs for past 2/7 [two days]. States has also had episodes of confusion and blurred vision + nose bleeds. No facial droop or slurred'.
The clinical record notes:
56 year old lady. Presents with multiple complaints. Completely well otherwise up until 2/7 ago [two days ago].
2/7 epistaxis [nose bleed] - 'lots'
'at least 250 mls'
Dizziness - postural, room spins when standing up.
Tiredness/fatigue/˅ exercise tolerance.
Blurred vision.
Headache 2/7 ago - 'worst ever'.
Sudden onset.
Eased after an oral analgesic - pain free since.
Chest pain 2 x 10 minute episodes …
Confusion - got lost in city 1/7 ago. Unlike her.
CMH x falls x 3 last year. Trips on cobblestone road.
The plaintiff confirmed in her evidence that she did in fact attend at Fremantle Hospital complaining of those matters. She attributed the problems she was experiencing to her problem of chronic high blood pressure and the stress of being involved in the District Court action.
On 2 October 2007 at 12.10 in the afternoon, the plaintiff presented to the Fremantle Hospital ED. The Adult Triage assessment records this as the presenting history:
Injury - chest. Patient involved in MVA a couple of weeks ago not in Aust. Sustained injuries. ? had x-rays
Patient reluctant to tell details. States she has pain and bruising around left chest, pain on deep inspiration, cough and ….
At 2.52 in the afternoon the progress notes record:
Called and not in WR [waiting room].
A progress note made on 3 October 2007 at another medical attendance with her GP recorded this:
Involved in MVA (motor vehicle accident) overseas - Turkey – 20/9/07 lacerations - healed.
Now persistent pain left breast and sternum.
OE [on examination]/chest - tender in fourth rib – mid clav line.
Tender lower sternum.
Large bruise left breast.
…
The plaintiff's then general practitioner, Dr Edwina Allan, wrote a referral for physiotherapy on the plaintiff's behalf on 12 October 2007. The letter is in these terms:
Thank you for seeing Mrs Jennifer Avsar, aged 57 years, whom I consulted today. She was involved in a motor vehicle accident on holiday in Turkey. Sustained large haematoma left breast and laceration left forehead. Nil fractures. Now she has significant C [cervical] spine stiffness and pain and left chest wall pain …
The plaintiff was involved in legal proceedings that required her attendance at court. Because of her claimed unavailability she was asked to produce evidence of her medical problem. She sought and obtained a medical certificate from her GP's practice from a Dr Turner. The certificate is dated 15 October 2007 and it says this:
This is to certify that Jennifer Avsar is under our care and is attending a physiotherapist for the next three weeks for treatment of injuries sustained in a motor vehicle accident in Turkey.
In her evidence the plaintiff insisted that there had been no such motor vehicle accident. She said, however, that she had asked for the certificate to be provided and she assumes that Dr Turner simply copied from Dr Allan's erroneous note. She told me, however, that she gave the certificate to '… some associate in the court at the time'. Otherwise she said, 'they would not adjourn it that day'.
There is correspondence in the medical records where the plaintiff is seen taking exception to an alleged remark from the judge's associate who received the medical certificate from Dr Turner, to the effect that the plaintiff was 'difficult'. The plaintiff required Dr Turner to write confirming that she had not described the plaintiff as 'difficult', and Dr Turner did so. There is no correction to the description of the injuries as arising from a motor vehicle accident.
For the purpose of this action the plaintiff's solicitor arranged for her to be reviewed by a Professor F L Mastaglia, a neurologist. Professor Mastaglia saw the plaintiff, with her daughter, on 13 April 2013. He had been provided with several letters or reports from four other doctors who had seen the plaintiff since the bus accident. None of those referred to a motor vehicle accident. He also received 'records from the Fremantle Hospital Afterhours GP Clinic'.
It is not clear what exactly he received from the Afterhours Clinic, but a complete set of those records had been received by the plaintiff's then solicitor, and those records found their way into exhibit 32 at trial. It is a voluminous set of records that covers the period from September 2001 to November 2008. An entry in the progress notes for 3 October 2007 does refer to the plaintiff being involved in an MVA in Turkey.
In his report Professor Mastaglia refers to the plaintiff's previous history:
She denies having any problems with her neck or right shoulder prior to this accident.
She was involved in a previous motor vehicle accident in 2007 in which she sustained facial lacerations and other soft tissue injuries. However, she did not suffer any neck or shoulder injuries in that accident.
She suffered an injury to the left shoulder as a result of a fall about 20 years ago and developed a frozen shoulder which recovered over a period of several months with a prolonged course of physiotherapy and hydrotherapy.
There is also a history of lower lumbar back pain 15 - 20 years ago which resolved following a steroid injection.
Five years after his initial report Professor Mastaglia added an amendment to it. On 26 September 2018 he provided this amendment:
Mrs Avsar has informed me that the reference to a previous motor vehicle accident in 2007 in paragraph 2, section 4 in my report of 30 April 2013 is incorrect. She indicated that she did however suffer facial lacerations and a shoulder injury as a result of a fall when she tripped over a protruding paver on a footpath in front of a stationary car in Fremantle in 2012.
The medical records refer to a motor vehicle accident in 2007. This is the first suggestion of a fall of this kind in 2012. While this is odd, in and of itself, Professor Mastaglia does not explain how it was that he came to make the error referred to, and why he was then prepared to correct it.
In her evidence the plaintiff repeatedly and angrily denied being involved in any motor vehicle accident, and equally robustly denied that she had been on holiday in Turkey. Instead, she said she had gone to Turkey to attend to the care of her husband who she said had suffered a cerebral haemorrhage. The plaintiff insisted that while she received injuries of the kind noted, they occurred when she fell in front of a parked car. The problem, she told me, was that her GP misunderstood, and other medical practitioners later relied on Dr Allan's erroneous description. That of course does not explain why the Triage Assessment taken the day before she saw Dr Allen would have recorded a history of a motor vehicle accident. Nor does it really explain Professor Mastaglia's comments.
It is in fact of no consequence, at least in these proceedings, whether the injuries arose from a motor vehicle accident or a fall in front of a motor vehicle. It is simply another instance of inconsistency between the plaintiff's evidence and what has been recorded by medical practitioners about the plaintiff's history.
On 14 July 2008 the plaintiff once again presented to the Fremantle Hospital ED.
The Adult Triage Assessment taken on 14 July 2008 records the presenting history in this way:
Cardiac/vascular - hypertensive - presents complaining of hypertension, has hx [history] of same. Very poor historian, states has been collapsing for 8/52 [8 weeks] several times each day, has not seen GP, ? LOC ? symptoms not giving.
The history taken on this occasion described:
Two episodes (?) syncope last 10 days:
1 x whilst walking in supermarket
1 x whilst vacuuming at home
> fell down without warning then got up and was orientated. Felt fine. Cannot remember if she actually lost consciousness. Nil tongue biting, nil incontinence, nil other injuries.
- Has been having dizzy spells for many months - no particular associations > not when standing from sitting.
Also complains several brief episodes:
- headaches
- palpitations
- occasional hot flushes/diaphoresis
States ˅ vision - slight blurriness - several months.
The doctor who examined the plaintiff reported to the plaintiff's general practitioner as follows:
History of presenting complaint: Non-specific presentation: two ? syncopal episodes last 10 days - describes falling to the ground without warning then getting up unharmed - cannot remember if LOC [loss of consciousness]. Nil tongue biting, incontinence. Also complaints of intermittent headaches, dizziness, diaphoresis and palpitations over several months …
Diaphoresis means perspiration, especially profuse perspiration. A syncopal episode is temporary loss of consciousness like a faint or swoon: Dorland's Medical Dictionary.
On 8 November 2008, the plaintiff presented to Fremantle Hospital ED complaining of pain to her right ankle. The progress notes and presenting history show that the plaintiff describes, 'pain to right ankle, patient rolled ankle today when coming out of bathroom … slight swelling to bilateral metatarsal region'.
On 17 August 2011 the plaintiff was back at Fremantle Hospital ED. The record of her attendance includes the following:
History of presenting complaint: Presents requesting bone scan of r) heel. Alleges was assaulted two months ago and has ongoing pain. X‑ray is normal. GP has referred to SJOG Murdoch for bone scan but patient would not pay for it. Has ongoing pain and has not been back to GP. Also c/o [complaining of] tooth pain - years of this particular tooth being sore, but worse in last few days. Has not seen a dentist in years.
Examination: NAD [nothing abnormal detected] found on heel/achilled examine. Offending tooth is canine R (lower jaw missing lots of teeth). Tooth very loose & painful to touch.
…
Principal diagnosis: ENT & mouth - abscess, dental.
…
Discharge plan: Advised to see a dentist ASAP preferably within a couple of days for tooth extraction. Bone scan requested, with results to GP please. Patient please follow up with GP for bone scan results.
…

The plaintiff's history of litigation

A central feature of the plaintiff's unhappiness and, unusually, of her bus accident case before me, relates to actions the plaintiff has brought with respect to her mother and her mother's and stepfather's estates.
Before me the plaintiff sought compensation for costs said to relate to the administration of her late mother's estate. Regrettably, the exact nature and basis for this claim was never required to be properly pleaded or particularised. However, because of a somewhat vague reference to the costs of these administration proceedings that appeared in the plaintiff's particulars of loss and damage and, as a result of decisions made in interlocutory proceedings and the consent of the defendant, the plaintiff was allowed to advance this claim at trial.
Beyond an appreciation that litigation with respect to her mother, her mother's estate and her stepfather's estate has left the plaintiff with a deep and lingering resentment about the outcome of those matters, it is difficult to make any sensible connection between the bus accident and any costs or claimed losses associated with those other court proceedings.

The background of those proceedings is set out in some decisions of the Court of Appeal of this State that were drawn to my attention: Avsar v Public Trustee [2011] WASCA 77; Avsar v Binning [2009] WASCA 219, and a further decision of this court that is referred to in the decision of Avsar v Binning, Avsar v Westland Healthcare Ltd. A reading of those cases reveals the incongruousness of the plaintiff's claims and the futility of the legal actions and appeals she brought.
It is necessary to explain some part of this background to make sense of much of what was claimed by the plaintiff in the trial before me. What follows is based largely upon the facts set out in the three decisions that I have referred to.
On 13 March 1994 the plaintiff's mother married John Robert Cowan (the plaintiff's stepfather). In the last years of her life the plaintiff's mother made several wills. It appears however, that the last will that she made, executed on 13 July 1994, appointed the Public Trustee as her executor and bequeathed all of her estate to John Robert Cowan.
In September 1995 the plaintiff's mother was admitted into a nursing home. In September or October of that year she was accidently given a double dose of insulin at the nursing home. That resulted in her being admitted to hospital several times. In late October the plaintiff's mother left the nursing home and went to live with the plaintiff in Adelaide.
On 14 December 1995 the plaintiff was appointed by the Guardianship Board of South Australia to be the administrator of her mother's estate. That was as a consequence of the Guardianship Board of South Australia being satisfied that, at that time, the plaintiff's mother had a mental incapacity within the meaning of the relevant legislation.
At some later time, it would appear in 1996, property settlement proceedings were commenced in the Family Court of Western Australia between the plaintiff's mother and Mr Cowan. In February 1996 the plaintiff's mother died. After her mother's death, the plaintiff was granted letters of administration in the Supreme Court of Western Australia for the sole purpose of being substituted as applicant in the Family Court proceedings.
In the Family Court property settlement proceedings, the plaintiff argued that the marriage between her mother and Mr Cowan was null and void because it was obtained by duress or fraud, or because the plaintiff's mother was mentally incompetent. That matter was ongoing in 2009. I am unaware of the outcome, if any, but there is no reason to expect it ended successfully for the plaintiff.
The plaintiff also believed, or at least asserted, that her mother's death was caused by the administration of insulin at the nursing home. On 28 November 2003 the plaintiff was appointed by the Supreme Court of Western Australia as administratrix of her late mother's estate for the sole purpose of bringing a claim in District Court action no 3175 of 1997 against the company that operated the nursing home. That matter was heard by Keene DCJ in March of 2007: Avsar as Administratrix of the estate of Antoinette Maria Cowan v Westland Healthcare Ltd. On 15 March 2007 Keene DCJ dismissed the plaintiff's claim, finding that the double dose of insulin that the plaintiff's mother received in the nursing home did not contribute to her death some five months later.
The plaintiff acted in person in the action against Westland Healthcare Ltd. She also gave evidence. As Keene DCJ observed at [47]:
Most of that evidence was, amongst other things, a combination of hearsay, comment, argument and irrelevant material. What was left was little more than formal matters, not really having any impact on the issues to be determined at this preliminary hearing.
Keen DCJ described the plaintiff's conduct of the trial before him in these terms at [3] - [5]:
The matter came on for trial on 12 March 2007 when the only matter to be dealt with as a preliminary issue was whether the alleged negligence of the defendant caused the death of the deceased. On that day the plaintiff applied to transfer the trial to South Australia, in effect seeking to adjourn the trial. I refused that application for the reasons that I expressed orally on that day.
The plaintiff took an active part in the trial on that day, but it is a matter of some considerable regret that thereafter at times she absented herself from the trial with no excuse, save that she had apparently applied to the Court of Appeal to stay the trial.
As I understand the position, when the matter resumed on 13 March 2007, no stay had been granted and, as I have noted, the plaintiff did not appear to make any application on that day. Accordingly, the trial proceeded in the absence of the plaintiff. On 14 March 2007 the plaintiff made a further application to adjourn the trial which I again refused. …
Although part of the trial was conducted in the plaintiff's absence, Keene DCJ's decision is supported by extensive reference to the medical evidence that he received.
From what she said when appearing before me, it is apparent that the plaintiff does not accept the correctness of Keene DCJ's decision, and she looks forward to a 'new … fair trial'. She is aggrieved that the trial proceeded in her absence and, like every other adverse decision she has received in the legal matters that she has pursued (which is to say, every decision that I am aware of), she rationalises the outcome on the basis of some fraud against her.
In 2010 the plaintiff brought an application seeking to be appointed as the administrator of her late mother's estate. That application was dismissed after a hearing before Kenneth Martin J. The difficulty that the plaintiff faced was that the last Will that her mother had made (just like the previous two wills) appointed the Public Trustee as executor. Kenneth Martin J dismissed the plaintiff's application: Avsar v Public Trustee [2010] WASC 11. The plaintiff's appeal of Kenneth Martin J's decision was dismissed and her grounds of appeal struck out: Avsar v Public Trustee [2011] WASCA 77.
I have referred to the futility of the estate litigation. Quite apart from the fact that the last three wills her mother had made (the first of these being in October 1991) had all appointed the Public Trustee as executor, and all had disposed of the mother's assets to Mr Cowan, the only significant asset that the mother had was a property jointly owned with Mr Cowan. It passed by survivorship. Because the assets actually within the estate were modest, the Public Trustee had elected to administer the estate without obtaining probate or administration, at least until the plaintiff challenged the validity of her mother's last three wills.
After Mr Cowan died in 2005, the plaintiff filed a caveat over his estate. It was renewed from time to time. The caveat prevented anything from being done with the assets of Mr Cowan's estate, including presumably the interest in the property that had passed by survivorship, without reference to the plaintiff. That was said to be on the basis that the plaintiff had an interest in those assets, arising from the fact that her mother had made the plaintiff and one of the plaintiff's sons her beneficiaries under a much earlier will made in October 1987.
Mr Cowan's sister was named in his will as his primary beneficiary. The Public Trustee was named as executor. In 2005 the Public Trustee renounced its right to the probate of Mr Cowan's will.
In March 2007 Mr Cowan's sister, Ms Binning, brought an action, denying that the plaintiff had any interest in her brother's estate, and claiming the grant of letters of administration. The unusual procedural history of this matter as it proceeded before Templeman J, including the plaintiff's frequent inability to attend court because of various medical problems, is set out in the reasons of Owen JA: Avsar v Binning, at [12] - [29]. On 1 September 2008 Templeman J delivered an extempore judgment granting letters of administration to Ms Binning. A caveat filed by one of the plaintiff's sons was discharged at the same time. The plaintiff's appeal of that decision was dismissed: Avsar v Binning. The plaintiff left me in no doubt of her view this decision too was attended by fraud.

The bus accident

The plaintiff gave this evidence about the bus accident:
On 16 May 2012, I was on my way to Officeworks Fremantle. I was sitting on the bus and I was going to Officeworks to prepare documents for a matter in the District Court the following day. And all I know is that on - I think it was in the afternoon, I can't remember the time … there was this loud screech and the next thing I know, I was woken up in Fremantle Hospital. I don't remember any - any details apart from the fact that I was hanging onto a pole of the bus … I was right in front of the bus where the steel ticketing machine is, the box. And when something happened I hit my head I think cos [sic] I was unconscious after that. I was told I - I hit my head. Then I was hanging onto a pole of the bus whilst I was travelling and the impact must have torn my arm loose from the tendons or something. … and I woke up in Fremantle Hospital after they gave me some medication and told me not to move. They told me who the Prime Minister for Australia was and I said Registrar Hewitt … I said Registrar Hewitt, that's all I remember. I don't know why he was in mind all the time, but it came out that day.
An incident report written by the defendant on 17 May 2012, a document apparently required by the defendant's employer, became an exhibit at trial after it was tendered by the plaintiff. It describes the bus accident in these terms:
I was turning right from Starlight St, into Helen St when a motorcycle came fast from my right on Helen St that made me brake so hard to avoid a collision. The motorcycle did not stop after avoiding the bus and kept on going down the road. Ms Jennifer was sitting on the front left seat, knocked her right eye on the tag on/off machine near the front door. Ambulance attended and took her for further treatment.
The plaintiff was taken by ambulance to the Fremantle Hospital ED. As is routine, an Adult Triage Assessment was performed when she arrived there at 17:27. The presenting history is recorded as:
Injury - head - blunt injury sitting on bus; bus braked hard patient fell forward and hit face on ticketing machine; no loss of consciousness; complaining of CX spine pain and numb right side of face and complaining of headache; no nausea; no visual disturbance ...
The Discharge Note from the plaintiff's attendance at the Fremantle Hospital ED on 16 May 2012 record this as the history of presenting complaint:
61 years old lady … with history of motor vehicle accident and head injury… Jennifer was travelling in a bus when she banged her head into ticketing machine because of sudden break of the bus. She hit her head and right side of face into the machine and developed pain and numbness over forehead, right side of face and neck immediately after that. She doesn't have full recall of the event but was able to walk herself. Denies any other injury or any noticeable blood loss. No history of nausea, vomiting or visual loss. Denies any clear fluid discharge from nose or ears. No complaint of numbness or decreased power in any limb. No history urine or faecal incontinence.
The examination notes describe Mrs Avsar being seen after pain relief. She is described as:
An unwell looking old lady lying with a cervical collar well orientated and cooperative with stable vitals … power 4+ in right arm, five in left arm. Five in both legs.
Sensation intact, reflexes two plus in all four limbs …
C spine tenderness over C5-6 with some paraspinal tenderness …
Under 'investigations' this is recorded:
Cervical spine/CT head: no evidence of acute intracranial or cervical spine injury is detected.
According to the hospital records, on the day of the bus accident, the plaintiff was able to describe the accident, first hand, in some detail. By the next day she was asserting some issues with memory but was still providing a first-hand account of the accident. But for the specific complaints she then made, she denied any other injury. The hospital records do not note any observation of the kind of disorientation the plaintiff claims she experienced on awakening in the hospital.
In her evidence before me, the plaintiff claimed to have lost consciousness in the accident, only to regain it in the hospital. Her evidence suggested or implied that she had been thrown right out of her seat. In other parts of her evidence she claimed that she had to be picked up off the floor of the bus. If the claimed loss of consciousness was true, much of what the plaintiff said happened could only have been reported to her by someone else. The detail of 'hanging onto the pole' at the time of impact appears to have emerged some considerable time after the bus accident, along with the assertion that this 'must have' 'torn her arm lose from the tendons'.
The plaintiff offered another version of the accident in a non‑responsive answer in cross‑examination to a question about the cause of fall in Turkey in 2016:
So this - so the balance problem was - was - - - ? It was there - - -
- - - before - before the actual fall? - - - The fall before - you know, from after the - after they got that new bus, on the floor, the balance problem was there, but I was taking a lot of medication.
I see. So even before the - - - ? - - - Yes I was managing - - -
- - - bus accident it was a problem? - - - Not before; when I fell on – in the bus, and I was thrown out the back and hit my body on the chairs on the bus seats.
Right. OK? - - - Because the chair I was sitting on is very high, so I must have fallen quite - quite a distance.
I asked the plaintiff what, if anything, she noticed about her condition at the time that her daughter picked her up from the Fremantle Hospital on 17 May. She said:
I couldn't move. I was – it was – the whole right hand side was if I was – someone had hit me by a truck or something because it was so painful. The following day it came a bit more worse so I just kept taking very strong pain killers that the doctor prescribed and basically I went on from there.
The plaintiff was kept overnight and discharged on 17 May 2012. The progress note at 6.00 am on the day of her discharge records, 'still have [sic] slight pain in neck and head'.
Counsel for the defendant tried to cross-examine the plaintiff about the apparent inconsistency between the injuries the plaintiff was now saying that she had suffered in the bus accident as compared to what she had apparently told the treating doctors and nurses. It was not an easy task:
So can I suggest to you, I think you'd agree with me, you didn't complain about your right shoulder, did you when you were in hospital on the day of the accident or the day after? - - - Just the right hand side of my body.
Just the right hand side, OK? - - - I did not know which part at that time, yes.
You didn't complain about any back pain, did you - - - ? - - - I did.
- - - as a result of the accident? - - - Yes my whole right hand side was very sore, I couldn't move.
So is that - when you say 'yes' are you agreeing with me that you didn't complain about back pain? - - - I complained about all the injuries that were said, you know on the right hand side. It was not the left. The left seemed to be alright.
I'm not asking about you about right or left, I'm asking whether you complained about back pain? - - - It was part of my - part of my lower back tissue injury, yes.
OK. I'd like to suggest to you that you never made any complaint about any back pain when you were in hospital on the 16 or 17 May 2012? - - - I did not make a complaint straight away but I was obviously found to be having soft tissue later, yes.
Right? - - - Yes.
And can I also suggest to you that you didn't complain about any problem with your teeth when you - - - ? - - - I did, I did.
- - - were in hospital on the 16 or 17 May? - - - Eyes, my teeth. My face was all bruised, yes.
To the extent that there is a suggestion that the force of the deceleration caused her arm to be 'torn loose from the tendons' either because of some impact or because the plaintiff had been clinging to a pole at the time of the impact, that was seemingly not reported to or observed by any of the medical personnel who saw the plaintiff at Fremantle Hospital. No contemporaneous record suggests that any part of the plaintiff's body, other than the right side of her face, ever came into contact with any part of the bus. No record suggests that on 16 and 17 May 2012 the plaintiff was complaining about any discomfort or problem with her eye, teeth, right shoulder or lower back. No record is made of any mark or bruising.
In her evidence the plaintiff variously suggested that she had terrible pain down her right side from the day of the accident, or that
the shoulder did not surface till further down the track when I got x-rays and they found out there was this humungous tear in there.
The plaintiff also suggested in evidence that her pain was somehow initially masked by the 'very strong pain killers that the doctor prescribed'.
Contrary to the suggestion that the plaintiff was put onto 'very strong pain killers', the management prescribed by Fremantle Hospital ED was regular Paracetamol every six hours, and Ibuprofen 'for breakthrough pain when required'.

Medical history subsequent to the bus accident

The plaintiff attended on a GP, Dr Pam Quatermass on 18 June 2012. The plaintiff accepted that this was the first medical practitioner she had seen since being discharged from Fremantle Hospital. The first suggestion of some eye problem is seen here.
Before seeing Dr Quatermass that day, the plaintiff first saw the registered nurse for the practice, Jonathan Ackinclose. Mr Ackinclose recorded these observations:
Talkative woman, shopping bag.
16/5/12: admitted to ED [emergency department] post-head trauma on bus (hit head on right side/temple).
CT NAD [CT scan - nothing abnormal detected].
C/o [complained of] blurred vision in R. eye (since accident).
C/o 'terrible headaches' also.
Has been taking analgesia/NSAIDs.
Had a reaction to codeine.
Otherwise well.
…
Would like to get eye checked.
Dr Quatermass saw the plaintiff about 15 minutes after she had been seen by Mr Ackinclose. Dr Quatermass records this:
History as described by RN.
Concerned by blurred vision in right eye since passenger in bus which hit motorcycle middle of last month. Flung from seat and taken to hospital by ambulance. CT head apparently normal. Referred to Drs Wertheim &/or Yellachich for ocular review.
This is the first recorded mention of the plaintiff being 'flung from her seat'. The bus did not 'hit' the motorcycle.
On 18 June 2012 there was no history taken of neck or back pain, or facial pain, or dental problems, or any pain or limitation in the use of the plaintiff's right arm or shoulder. Apart from the specific complaints on that day, the plaintiff was apparently 'otherwise well'.
There is no record of the plaintiff attending for an ocular review. There is in fact no evidence of any kind of eye test.
According to her evidence, sometime after her attendance on Dr Quatermass, the plaintiff went to Turkey. She remained there until late 2012 or early 2013. She told me that while in Turkey she was regularly receiving injections into her back from her doctor. No bill or medical record for these attendances or for the prescription drugs was produced, although according to both plaintiff and her husband the plaintiff would have been obliged to pay for any treatment in Turkey. Records were provided for other medical treatment the plaintiff received in Turkey in mid-2013 and 2014.
The next recorded attendance by the plaintiff on a doctor, supposedly relating to the bus accident, comes on 21 January 2013. This is the first recorded mention by the plaintiff of a shoulder problem caused by the bus accident.

The plaintiff is reported as telling her GP, Dr Ibukunoluwa that she had been experiencing pain in her right shoulder for six months, following the bus accident. The only other matter she is then recorded as complaining of was a rash on her upper chest and torso, which she felt was 'due to the water in Perth'.
Dr Ibukunoluwa arranged for an ultrasound of the plaintiff's right shoulder. That was done on 30 January 2013.
The ultrasound report on 30 January 2013 described a clinical history of 'adhesive capsulitis'. The findings of the ultrasound were:
There are at least two slightly complex tears of the supraspinatus: a large probable full thickness tear involving the anterior and mid fibres, 15 mm in short axis and 11 mm in long axis and a 6 mm posterior articular - surface partial-thickness tear. The subscapularis is moderately tendinopathic. No other rotator cuff tear is demonstrated.
On 5 March 2013 Dr Ibukunoluwa referred the plaintiff to the consultant of the orthopaedic unit at Fremantle Hospital. In the referral letter he advised, 'thank you for seeing Ms Jennifer Avsar aged 62 years, who presented with pain in the right shoulder of at least 6 months. She states that she was involved in a bus accident 6 months ago …'.
Dr Ibukunoluwa referred the plaintiff to Mr Aaron Tay, an orthopaedic surgeon. Mr Tay reported to Dr Ibukunoluwa on 15 March 2013, in these terms:
Thank you for asking me to see Jennifer, a 62 year old, right hand dominant lady. She is currently the carer of her husband who has had cerebral haemorrhages.
On the 16^th May 2012 she was in a bus when it swerved and suddenly braked. She was holding onto a bar and fell over, knocking her head with a period of loss of consciousness. She reported pain over the right side of her face and neck. She was seen at the Emergency Department at Fremantle Hospital. Jennifer reports that as the pain in her neck settled, she began to notice discomfort in her right shoulder. This pain became more apparent in December when her Panadeine Forte was reduced. Since then, she has had discomfort in this shoulder.
She is otherwise fit and well.
On examination, she has an irritable right shoulder and this is a little difficult to examine. She has a passive near normal range of motion but is limited in internal rotation. Her impingement sign is positive and she has positive weakness of her supraspinatus. Her AC joint is mildly tender and her longheaded biceps is only irritable.
I note she has had an ultrasound in January which shows a probable full thickness tear of the supraspinatus but reports that this is of a complex nature.
I have organised for her to have an MRI and I will further evaluate her following this. I have told her that I do not deal with neck pathology …
It will be observed that the history taken by Dr Tay records that the pain in the plaintiff's neck had settled. There is no history of lumbar pain. Apart from what is described as the 'discomfort' in the right shoulder, the plaintiff is reported as describing herself as 'otherwise fit and well'. The manner in which the plaintiff said she came to be injured is in rather different terms from other versions, with no mention now of her being seated, with the plaintiff seemingly falling over from a standing positon before striking her head. And, numerous records from the plaintiff's attendance at emergency on 15 May 2012 record that the plaintiff is 'allergic' to Panadeine Forte. She was prescribed Paracetamol, not Panadeine Forte.
The plaintiff attended at Fremantle Hospital on 20 March 2013 at an outpatient clinic. The 'reason for referral/preliminary diagnosis' is described as '62 year old lady with pain in right shoulder for 6/12 [6 months] post-bus accident. Pain increasing over time with swelling …'.
Progress notes from the plaintiff's attendance at Fremantle Hospital on 20 March 2013 record, '62 year old female presenting with 8/10 pain right shoulder - worse at night time. U/S [ultrasound] report states tears in bursitis, not taking pain relief at home. Unable to sleep due to pain since December …'. The contrast with Dr Tay's report is stark.
The discharge note from the Fremantle Hospital ED describes the history of presenting complaint in this way:
62 year old lady presented with right shoulder pain for 6 months post a bus accident. She was initially taking Panadeine Forte, however was allergic to codeine; she has since been taking Nurofen regularly which does help. She has noticed increasing pain on movement as well as stiffness and swelling of the joint, particularly in the evening. She finds lifting things difficult. There has been no acute change recently; no neuropathic symptoms …
The plaintiff then returned to Turkey. A record from the Turkish Ministry of Health, translated into English, shows that on 30 July 2013 the plaintiff had an MRI examination of her shoulder. I observe that this is the only record from Turkey that the plaintiff produced that was said to relate to treatment for an injury from the bus accident. Other Turkish records were produced with respect to her subsequent ankle injury.
A further MRI of the right shoulder was performed by Dr Victor Wang on the referral of Robert Petanceski. This MRI reports a 'moderate to high grade supraspinatus tendinopathy with a concurrent complex mostly high grade partial thickness/with tear …'.
The plaintiff was eventually referred to Mr Robert Petanceski, an orthopaedic surgeon. In a letter dated 6 November 2013 to the referring GP Mr Petanceski set out what he had been told by the plaintiff about how she had injured her shoulder:
She was holding on a pole on the bus and fell to the ground and was knocked unconscious. She was taken to Fremantle Hospital at the time. After the accident she noticed pain in her right shoulder. It is worse with overhead activities and reaching forward. She has not had any treatment other than some anti-inflammatories …
On examination she had tenderness over the greater tuberosity. Elevation was limited to 100 degrees with a positive impingement sign and pain on stressing the supraspinatus. Internal rotation was 60 degrees and ?…excellent…? rotation 45 degrees.
She had a MRI scan in Turkey which was of poor quality but suggested some impingement and tearing of the rotator cuff. She has had an ultrasound which suggested a full thickness tear of the supraspinatus. This was taken last year. In summary she has clinical features of right shoulder impingement and rotator cuff tear. She may also have a component of frozen shoulder syndrome. I have referred for a new MRI scan with contrast to detect any full thickness tears and I will review her after that.
On 28 November 2013 Dr Petanceski performed surgery to repair the tear in the rotator cuff.
While in Turkey in September 2014 the plaintiff fell and badly broke her left ankle. The injury required screws and plates to be surgically fixed to allow the ankle to heal. The metalwork was removed in Fremantle Hospital on 9 March 2017 by Borislav Branko, an orthopaedic surgeon. Mr Branko in his notes described the removal as 'uncomplicated'.
Despite that, since the last ankle surgery the plaintiff has attended a number of sessions of physiotherapy. While some of the notes of these sessions record complaints about the plaintiff's shoulder, most of them appear to relate to efforts to assist the plaintiff with stability following the ankle injury.
The plaintiff continues to use a walking stick. When giving evidence she had a noticeable tremor on the right side of her body, particularly her upper body. It would seem that the plaintiff has not sought assistance for the tremor although, as will be seen, one of the medical experts who reviewed the plaintiff regards it with some concern.
The most recent attendances recorded by the plaintiff's GP Dr Ibukunoluwa, where notes are made, are for 20 and 30 March 2017. Despite the multitude of ongoing complaints before me about problems from the bus accident, on 20 and 30 March 2017 the plaintiff's reason for attending is said to be 'back pain'. On 20 March the GP requested imaging of the plaintiff's lumbosacral spine. On the 30th the plaintiff is recorded as asking for 'tab for the back pain'. She was prescribed 'Lyrica 75mg Capsule (Pregablin) twice a day'.

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 - - -
The question, 'Are you still working?' was not answered.

The medical evidence

While there was a considerable volume of medical records from the plaintiff's many attendances with her GPs and at the Fremantle Hospital ED over the years, there was limited evidence connecting the plaintiff's various complaints to the bus accident. Apart from histories that the plaintiff provided to various examining and treating medical practitioners, there is little or nothing to connect the plaintiff's more significant complaints to the bus accident. The histories provided by the plaintiff tend to cast doubt on her evidence that the bus accident caused more than passing pain and discomfort.
The plaintiff tendered a letter report dated 2 December 2013 from Dr David Kennedy, a medico-legal consultant, to the plaintiff's then solicitor Simon Walters. The report does little more than confirm what the anticipated costs would likely be for the surgery then recommended by Mr Petanceski. The report does say:
The injuries to the right shoulder joint are amenable to surgery and the procedure proposed by Mr Petanceski is appropriate, and this surgical procedure on the balance of probabilities will reduce Ms Avsar's level of shoulder pain and disability.
If Ms Avsar was to undergo a surgical procedure as recommended by Mr Petanceski, the time off work would be in the vicinity of 6 - 12 weeks dependent upon the nature of the work activities that Ms Avsar is involved in and Ms Avsar would need to return on restricted duties avoiding repetitive or strenuous right upper limb activities under load or stress.
The plaintiff also tendered a report from Professor F L Mastaglia, a neurologist, dated 30 April 2013. The report was admitted into evidence without requiring Professor Mastaglia to attend as a witness, on the basis of a statutory declaration he apparently signed dated 27 February 2019. That document declares:
I am unfit by reason of bodily condition to attend court or to give evidence as a witness.
As set out earlier in these reasons, Professor Mastaglia based his report on an interview with and examination of the plaintiff, and from speaking with her daughter. Neither this daughter nor any of the plaintiff's children gave evidence at trial.
Professor Mastaglia also said that he had reviewed these 'reports': the hospital discharge summary from Fremantle Hospital of 16 May 2012, 10 August 2012 by Dr M Kesavan, from Fremantle Hospital; Dr Quatermass of 18 June 2012; and Dr Ibukunoluwa of 15 February 2013; and records from the Fremantle Afterhours GP Clinic.
Professor Mastaglia describes each of these as 'reports', although the only medical legal report is in fact that of Dr Kesavan who wrote to respond to a request dated 13 July 2012 from the plaintiff's then solicitor, Mr Walters. Otherwise, it is not apparent that Professor Mastaglia is referring to anything more than the medical records which went into evidence at trial.
Dr Kesavan's report merely sets out what is recorded in the Fremantle Hospital ED records that were described earlier in these reasons. It is however of some interest to see that the plaintiff had retained legal assistance just two months after the bus accident, and that her legal representative was from that time seeking to gather evidence relating to any problems associated with the bus accident. It is not a case where the opportunity to gather relevant evidence was lost through delay.
Professor Mastaglia records the circumstances of the accident in this way:
The accident occurred when she was sitting on a Transperth bus on her way to Officeworks in Fremantle. She is not sure of the exact location or time but thinks that it was in the afternoon. She was sitting in one of the front seats near the ticketing machine and was holding onto a metal support bar with her right hand to steady herself. She was thrown forward out of her seat when the bus driver had to brake suddenly and hit the right side of her face and head on the ticketing machine and ended up on the floor. She thinks she was rendered unconscious for a brief period and her next clear recollection is of finding herself in the Emergency Department at Fremantle Hospital where she had been taken by ambulance.
She indicated that a few days later she developed obvious bruising of the right side of her face and temple and right leg. She was kept under observation overnight in the Emergency Department and was subsequently discharged on the following morning … CT scan to the head and cervical spine were performed which showed that she had not sustained any serious acute injuries.
Mrs Avsar indicated that following the accident she had right sided facial pain and numbness, recurrent headaches and right sided neck and shoulder pain. She also suffered some damage to some of her upper teeth on the right side which have since come out. The facial pain and numbness gradually improved and resolved after about 6 weeks.
She also had blurring vision in the right eye after the accident. This gradually improved over the first few months but has still has not returned to normal, and she had to start wearing reading glasses after the accident.
This appears to be the first time that the plaintiff told anyone that she 'ended up on the floor'. I observe as well that if there 'was obvious bruising', there is no record of it, beyond the plaintiff's report.
Professor Mastaglia recorded '… the following ongoing problems':
1.Constant neck pain which is predominantly right sided and extends into the suprascapular and shoulder areas and upper arm, reaching levels of up to 8 - 9 out of 10 in severity.
2.Recurrent headaches which come on during the day and frequently also wake her in the early hours of the morning so that she has to take pain relieving medication.
3.Difficulty using her right arm because of shoulder and upper arm pain.
4.Blurred vision in her right eye.
She still has to take ibuprofen on most days for pain control. She had previously been on Panadeine Forte but was unable to tolerate this.

If Professor Mastaglia had read the records from the Fremantle Afterhours Clinic he should have known that the plaintiff had suffered several falls, not 'about 20 years ago', but in September 2001, October 2005 and September 2006. He should have known, contrary to what the plaintiff was apparently telling him, that following the incident in October 2006, the progress notes show that following the October 2006 incident an ultrasound showed 'right sub acromial bursitis - for steroid injection - right neck pain - stiff neck - inconsistent tenderness'. Not only would he have seen the progress note I have referred to, but a report from the Radiology Department to similar effect. He should have known that the 'injury to the left shoulder joint' occurred, not because of a fall 'about 20 years ago', but in fact in October 2005, and that the plaintiff continued to receive medical assistance for her shoulder for at least the next 12 months. He should have known that the history of lumbar back pain was not in fact '15 - 20 years ago … resolved following steroid injection' but had occurred because of a fall in September 2001 and that the plaintiff was still receiving treatment for it in October 2003, some six months after the facet joint injection and taking medication for it for even longer.
Professor Mastaglia unquestioningly accepted the plaintiff's version of her medical history prior to the bus accident, when he had been given records that contradicted that history in a number of respects.
I do not accept Professor Mastaglia's conclusions about the causes of the plaintiff's then ongoing complaints.
I accept the evidence of Mr Petanceski, the treating surgeon.
I accept the evidence of Dr Flahive. As an occupational physician he was qualified to give the evidence that he did, and he was careful to delineate the limit of that expertise. His evidence was in my view careful and considered. His conclusions were supported by reference to the documentary evidence available. With respect to the nature and causes of torn rotator cuff shoulder injuries, his evidence was consistent with that of Mr Petanceski.

Credibility of the plaintiff

Beyond the admitted fact that the bus accident caused the right side of the plaintiff's face to strike the ticketing machine at the front of the bus, there is little in the plaintiff's case that does not rely on the acceptance of the truthfulness and reliability of her evidence. A more accurate way of expressing the issue is that proof of most of the plaintiff's claims would depend on credible and reliable evidence from her. To the extent that the plaintiff gave evidence about any particular fact in issue in this trial it is not possible to accept that she was either truthful or reliable.
I have already described the garrulous but vague nature of the plaintiff's evidence. Her evidence-in-chief consisted of meandering statements, assertions, and arguments. The written closing submissions that I allowed the plaintiff to file were in many respects a mirror of her evidence-in-chief, in the sense that while she tried to argue her case while giving evidence, her written submissions sought to put forward new, unsworn evidence I do not rely on any new evidentiary matters contained in her written submissions.
Her responses to the simplest of questions in cross-examination were usually evasive or at least unresponsive.
There are several references in the medical records where an attending doctor describes the plaintiff as a 'poor historian'. They do not exaggerate. On those occasions when she gave evidence about facts that could be checked against contemporaneous records there were frequently glaring inconsistencies. To refer to just a few of the more obvious ones:
•Contrary to her evidence at trial and the history given to Professor Mastaglia, the plaintiff did have a problem with her right shoulder prior to the bus accident. The available records show that after a fall in the street in 2006, a right shoulder ultrasound identified degenerative change in that shoulder, referred to by Dr Flahive.
•The various statements made by the plaintiff as to whether she did or did not have shoulder pain or pain on the right side of her body immediately or soon after the bus accident cannot be reconciled, either with each other, or with the contemporaneous records.
•The plaintiff's evidence – at one stage at least – that she had no or few problems with her teeth prior to the bus accident but experienced loosening immediately or soon after the bus accident, is wildly at odds with the contemporaneous records. Before me the plaintiff gave evidence that three to four weeks after the accident she noticed 'something coming out from the lower part'. She said that she 'never had that problem before'. She made no complaint of any problem with her teeth when she attended on Dr Quatermass on 18 June 2012, nor to her GP Dr Ibukunoluwa from 21 January 2013 onwards. Contrary to her evidence, her medical records prior to the bus accident include references to some serious dental problems.
•The plaintiff's evidence that she was not involved in a 2007 motor vehicle accident in Turkey is contradicted by numerous assertions made by her, to different doctors, beginning in 2007. She used the claim of health problems arising from that motor vehicle accident to excuse her attendance from a required court appearance. She asked for and was provided a medical certificate. It said she was '… under our care and attending a physiotherapist for treatment of injuries sustained in a motor vehicle accident in Turkey'.
•In her evidence, and in the history she provided to Professor Mastaglia, she denied or sought to minimise the history of falls and problems with her lower back that are made plain by the contemporaneous records.
•Her description of the manner of her injury in the bus accident has both expanded and varied with time, to exaggerate the extent of such injuries.
•She repeatedly claimed that she was acting as the full administrator of her mother's estate for the duration of the estate litigation, when the court orders made show an extremely limited scope of administration. Even when faced with the actual court orders, the plaintiff maintained her claim to be an administrator with full powers even after her mother's death.
•The claims made for losses as administrator of her mother's estate were far-fetched and bore no resemblance to anything to which she might be entitled. They included such things as 'borrowings from financial institutions to fund proceedings'. This appears to be a loan to her son. There are office expenses incurred by her son's business. There are alleged costs of modifying a house to accommodate the plaintiff's mother, and costs of a vehicle and ramp. Accommodation costs for the plaintiff's family to be near her mother when in hospital were claimed, as well as numerous indeterminate Australia Post receipts.
•The plaintiff advanced a claim for lost income and lost earning capacity, suggesting that she planned to resume working in the family's South Australian meat exporting business – when various medical records prior to the bus accident show her occupation as 'housewife' or 'retired'. Even Professor Mastaglia describes the plaintiff as 'not employed at the time of the accident and there is no prospect of her joining the workforce'. The evidence before me is that, in any event, for many years the plaintiff and her husband have made their home in Turkey.
The plaintiff was prone to exaggerate matters that seemingly assisted her case and minimise those that might detract from it.
The plaintiff had no hesitation in making serious accusations of wrongdoing without any proper basis, including making allegations that judgments against her were tainted by fraud, and untrue accusations that counsel for the defendant was misleading the court.
Despite being repeatedly told that the mere fact that a claim or assertion was made proved nothing and that factual evidence was necessary to establish any claim she wished to advance, the plaintiff was and remains incapable of distinguishing between assertion, argument and fact.
The plaintiff was given permission to make her closing submissions in writing at the close of the trial. The 17 page document that she provided tried to offer evidence, often hearsay, irrelevant, or both. So far as I am able to determine, in the plaintiff's mind something should be accepted as a fact if she says it is a fact, whatever the basis for that assertion.

Consideration of the claimed physical injuries

Lost teeth

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.
There was also of course the record from 2001, referred to earlier in these reasons.
There is nothing in any medical record that would suggest that the bus accident resulted in any loosening or any problem with any of the plaintiff's teeth, upper or lower, on the left or the right. Contrary to answers given by the plaintiff, she has a long history of losing teeth on the left and right sides of her jaw, both upper and lower. That might be thought to be related at least in part to the fact that she has not been to a dentist in decades.
The plaintiff's claim that her teeth were damaged or loosened in the bus accident is without merit. I do not accept it.

The plaintiff's right eye

The only foundation for the claim there was some problem arising from the bus accident, resulting in some degree of loss of vision in the plaintiff's right eye, comes from the plaintiff herself.
I asked the plaintiff, in her examination-in-chief, what if anything she had done about her claimed injuries since the accident, her answer included this:
I fixed up my arm, your Honour, I fixed up all my eye, part of it, you know, it was in bad condition.
There is no mention of any vision problem when the plaintiff attended at Fremantle Hospital in May 2012. It was only a month later when the plaintiff turned up at the GP Afterhours Clinic in Fremantle that she made a complaint about blurred vision together with 'terrible headaches'. Understandably, Dr Quatermass who saw her that day referred the plaintiff for an ocular review. It appears that the plaintiff did not attend for this.
The plaintiff visited her GP five times between January and April 2013, and made no complaint about any problem with her vision or her eye.
The plaintiff also gave evidence to this effect:
I've got evidence that I had facial – and – and I was bruised badly on the face and I had the right eye that was giving trouble. Well that one got well again, your Honour.
No one says that the plaintiff was badly bruised on the right hand side of her face except the plaintiff.
To the extent that the plaintiff's claim of some problem with the blurriness or vision in her right eye might be truthful, the fact is that the plaintiff has a reported history of blurriness in her eyes dating from 14 July 2008.
I do not accept that the plaintiff has or had any problem of any consequence with her right eye arising from the bus accident.

Neck, lower back and right shoulder

A question that naturally arises with respect to the plaintiff's claimed injuries to the lumbar spine and right shoulder is 'what was the mechanism of the injury?' To put it another way, what forces of acceleration and deceleration operated on what parts of the plaintiff's body as a consequence of the sudden braking of the bus?
Earlier in these reasons I set out the evidence the plaintiff gave about the bus accident. I was never told or shown exactly where the plaintiff was sitting, what the seating arrangements were, where the support poles were, or where exactly the plaintiff was sitting in relation to the 'tag on/off machine near the front door', that Mr Richwood said the plaintiff 'knocked her right eye on'. Although Mr Richwood provided contact details for two 'witnesses to the incident' in his report, they were not called.
The histories provided by the plaintiff in the medical records for 16 and 17 May and 18 June 2012 do not describe an impact between any part of the plaintiff's body, and any part of the bus, other than falling forward while seated and 'banging her head into the ticketing machine'.
In those records the plaintiff is recorded as saying that she 'hit her head and right side of the face into ticketing machine and developed pain and numbness over her forehead, right side of face and neck immediately after that ... denies any other injury'.
A month or so later the plaintiff apparently told Dr Quatermass and her practice nurse that her injury consisted of 'hit head on right side/temple'.
The claim that the plaintiff was completely thrown out of her seat onto the floor of the bus, and had to be picked up off the floor, appears to be an elaboration of the plaintiff's story that has developed over time. That is also true of the version that includes 'holding onto the pole' before being thrown either off her feet or out of her seat.
I observe as well that the plaintiff did not give a history of pain in any part of her spine, other than her cervical spine to either Fremantle Hospital or Dr Quatermass. She made no complaint of neck or back pain to Dr Quatermass. Dr Ibukunoluwa in his records from 21 January 2013 up to 2017 does not record that she was experiencing neck or lower back pain. It is only on 20 March 2017 that the plaintiff goes to Dr Ibukunoluwa complaining about her back, and asking for a referral to Dr Alexeef. She is recorded as saying that this is '… at the request of the court for a medico legal process …'.
It was pointed out to the plaintiff, in the course of her cross‑examination that even Professor Mastaglia does not refer to low back pain in the report that he prepared. The plaintiff's answer to that was in effect that she had only answered the questions that she was asked, suggesting that no question Professor Mastaglia asked her gave her the opportunity to describe that particular problem. The idea that Professor Mastaglia would have taken a history of presenting complaints from the plaintiff, by asking her about each individual part of her body in turn, is difficult to accept. The idea that the plaintiff could be restrained from volunteering complaints by the mere failure to ask her a direct question is completely implausible.
The plaintiff has a long history of lower back pain that I have already referred to. It long pre-dates the bus accident. If she is experiencing such problems now I do not accept that they were caused in any way by the bus accident.
More than eight months elapsed between the bus accident and the first recorded complaint by the plaintiff about her right shoulder. The plaintiff's evidence before me of pain and problems either in the right side of her body or her right shoulder on the day of the bus accident or soon thereafter is not supported, and is in fact contradicted, by contemporaneous medical records on 16 and 17 May and 18 June 2012.
To the extent that any medical practitioner has accepted that there was or might be some connection between the bus accident and a problem in the plaintiff's right shoulder, that has relied on at least some degree of acceptance of the plaintiff's description of the bus accident and right shoulder pain and symptoms persistent from the time of the bus accident or shortly thereafter. I do not accept the plaintiff's evidence in that respect.
Some medical practitioners have also relied on the plaintiff's assertion that prior to the bus accident she had no problems with her right shoulder. That is plainly contradicted by medical records from 2007. The ultrasound that was taken in 2007 also tends to support the proposition that the plaintiff's right shoulder condition was deteriorating at least from that time. As both Dr Flahive and Mr Petanceski said, with people of the age of the plaintiff, a tear can be present and be asymptomatic, and can suddenly become symptomatic for no obvious reason. Or, at that age, a tendon can suddenly tear for no apparent reason at all.
The plaintiff has a history of falls from 2001 that is concerning to say the least. I do not accept, as the plaintiff asserted (in what was supposed to be her cross‑examination of Dr Flahive) that this, '… was mainly a disease of pavers rather than degeneration or old age …'. The plaintiff's history of falls and the tremors that she has been exhibiting for some time rightly concerned Dr Flahive.
For some period of time between June 2012 and January 2013 the plaintiff was in Turkey. I have no evidence about what she was doing there at that time, and what may have happened to her there, beyond her claims that she was receiving regular injections in her back. It is not clear when she arrived back in Perth, although it may have been 10 days prior to seeing Dr Ibukunoluwa, according to a note of his. It is not apparent why she waited until 21 January 2013 to go to see Dr Ibukunoluwa when, according to her complaints recorded in an Adult Triage Assessment and Progress Notes on 20 March 2013, she had '8/10 pain R Shoulder - worse at night time … not taking pain relief at home. Unable to sleep due to pain since December …'.

The plaintiff's explanation that her shoulder problem emerged only later because her Panadeine Forte had been reduced or stopped does not make any sense. Although in some records over the years the plaintiff is recorded as asking for analgesics, no doctor had prescribed Panadeine Forte for any problem that she was experiencing from May 2012. To the contrary, from at least the time of her attendance in the ED in May 2012, her doctors were noting that the plaintiff reacted adversely to Panadeine Forte.
The absence of any muscle wastage on examination in January and February 2013, contrary to what was likely to have been seen if the problem had begun six months or more prior, suggests that any significant shoulder pain or impingement was relatively recent. If the shoulder problem became acute in December 2012, as the plaintiff claimed, that suggests that it was about that time when the tear actually occurred, or became symptomatic.
The law does not require that a negligent act be the sole cause of some harm that results. What it does require is that:
(a)the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability): s 5C Civil Liability Act 2002.
I summarised the law with respect to these provisions of the Civil Liability Act 2002 (the CLA) in the decision of Panagoulias (by his Next Friend Fiona Averil Panagoulias) v The East Metropolitan Health Service [No 4] [2017] WADC 118:
352Acting on the recommendation of the Ipp Report, the provisions of s 5C represent a shift from the 'common sense' approach to causation exemplified by cases like March v (E & MH) Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, and split the concept of legal causation into components of 'factual causation' (s 5C(1)(a)) and 'scope of liability' (s 5C(1)(b)).
353Section 5C(1)(a) enacts the 'but for' test for causation. That is, it prompts the question: but for the negligent act or omission, would the harm have occurred: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [45]. ThisF 'but for' test is a necessary test of causation in all but the undefined group of 'appropriate cases' contemplated by s 5C(2): Adeels Palace [55].
354The incorporation of a second limb of 'scope of liability' by s 5C(1)(b), expressly recognises that value judgments may well have a part to play in resolving causation as an issue of fact: cf March v (E & MH) Stramare Pty Ltd (515); Adeels Palace Pty Ltd [42] - [44]. Section 5C(1)(b) together with s 5C(4) point at least generally to the policy considerations that may be bound up in the attribution of legal responsibility for harm.
355In most cases where factual causation has been established by the 'but for' test, 'scope of liability' will rarely lead to a different outcome.
I am not persuaded that there is any causal connection between the bus accident and the shoulder injury. That is, in my view, it has not been proved that the tear to the rotator cuff of the right shoulder occurred because of or had any connection to the negligent act of the bus accident.

The broken ankle

The plaintiff fell and broke her ankle in September 2014.
Mr Petanceski reviewed the plaintiff on 2 April 2014 following her shoulder surgery of November 2013.
In his letter to Dr Ibukunoluwa Mr Petanceski reported that since the surgery the plaintiff had been in Turkey and, '… has not done any physiotherapy until this week. She is comfortable and pain free otherwise'.
The injury to the plaintiff occurred when she returned to Turkey after this review. It happened, she said, while she was hanging out laundry. She said that, 'I saw a peg on the floor that was out of the box, that I just went to pick it up and I fell over, yes'.
While it was never made clear how falling over in this way caused the plaintiff to break her ankle, she nonetheless blamed this break, her two subsequent surgeries and all the problems that arose as a consequence, on the bus accident. Her reason for doing that was as set out earlier in these reasons because, she said, '… of not being able to balance from the back injury, … This leg thing you know, cos I couldn't walk. So that's why I got injured in 2014'.
None of this makes sense. None of her doctors were reporting or recording a history of some balance problem because of injuries received in the bus accident. That includes Mr Petanceski who saw her just four or five months before this fall.
The plaintiff's odd history of falls may well offer an explanation as to why the plaintiff fell again in Turkey in 2014. It does not necessarily explain how the plaintiff's ankle got broken, but nor does anything to do with the bus accident. I am satisfied there was no causal connection, to any degree, in any sense, between the bus accident and the plaintiff's broken ankle.

The plaintiff's claims for economic loss

It was never possible to understand why the plaintiff thought she should be compensated for expenses connected with the care of her mother or the litigation subsequent to her mother's death, because of the bus accident. From some things that the plaintiff said at times, it seemed that it might have something to do with some claimed injury preventing the plaintiff from doing something with respect to some of the litigation that she was involved in. There are many problems with this.
First, a foundation of the plaintiff's claims was that these were expenses somehow incurred in her role as administrator of her late mother's estate. She was no such thing.
Next, it was never clear that some injury that might really be connected with the bus accident ever stopped the plaintiff from doing anything in connection with the litigation. In reviewing the medical records that had been put forward, there are many instances, prior to 2012 where the plaintiff has asked for or demanded that a medical certificate be provided in respect of some particular court attendance. There are a number of such certificates. In several instances it appears that the plaintiff is presuming quite a lot in asking for a medical certificate to excuse her from a court attendance.
Finally, the bundle of materials that the plaintiff tendered into evidence in support of this particular claim were unsupported by any kind of contextual evidence that made any sense whatsoever. I find that the plaintiff did not suffer any financial loss in respect of the litigation she claimed she had undertaken as administrator of her mother's estate.
The plaintiff has also claimed to be compensated for a loss of earnings related to the meat export business. The claim was particularised in this way:
The plaintiff was unable to recommence the family's Meat Export business (Aust Meat - licence, Sydney) in the period from 16 May 2012 to the present as a result of accident injuries, she was unable to facilitate the role of Export Meat Coordinator, Customs and Shipping Officer and claims $40,000 a month from the date of the accident ie, 16 May 2012 to date of settlement of claim (losses are minimum 2 x 20 foot containers of Australian export quality meat) or as the Trial judge deems just and fit.
Earlier in these reasons I referred to the plaintiff's unresponsive answer to a question about whether she was currently working. The evidence never rose much higher than the quote I have set out above.
Even by the standards of such things in this court, the claim for past loss of earnings is hyperbolic. Even as particularised, the plaintiff is not asserting that it was income that accrued to her personally. There was never any evidence as to what, if anything, the plaintiff actually earned from that business when it was operating. Of course, the evidence before me was that the business stopped trading 15 years before the bus accident. It stopped trading because it lost its licence. Nowhere in any record is there any suggestion or indication that the plaintiff hoped to be employed again in any way. This claim, whether for past or future loss, is entirely without foundation.

Gratuitous services and future care

The particulars also advance a claim for more than 5,500 hours of 'gratuitous services' in respect of 'domestic services' like cleaning, shopping, preparing meals, dressing and cleaning the plaintiff, changing bed linen, gardening and driving the plaintiff to attend appointments.
After the plaintiff broke her ankle, for some time thereafter she would have needed assistance with things that she ordinarily did and with her personal care. The same cannot be said for any injury that she actually suffered as a result of the bus accident.
The plaintiff claimed that gratuitous services were provided by her daughter, son and husband. Apart from the plaintiff, the only witness called to give evidence about gratuitous services was the plaintiff's husband.
I accept that the plaintiff's husband was an honest witness. It was plain that after many decades of marriage he remains devoted to the plaintiff.
Unfortunately prior to 2012, the plaintiff's husband suffered a cerebral haemorrhage. He had surgery. As he candidly admitted when asked about the timing of the plaintiff's operation on her shoulder:
Well, I can't remember the - clearly because after the operation I lost - your Honour, I lost my memories. Not all of it, but I can remember – I think she's - 2012, she got operation and it - I was in Turkey, that's in Turkey that operation. The back is given injection for doctor, go to every day have the injection a few days. And - after the operation on the leg. And shoulder operation was happened here that time …
While I accept that Mr Avsar was an honest witness I cannot accept that he is a reliable witness. To the extent that he referred to gratuitous services that he provided to the plaintiff, it appears to me that he has conflated memories of services provided after the plaintiff's serious ankle injury with other times in their lives.
I find that the plaintiff has not proved any need for either gratuitous services or for future care as a result of any injury arising from the bus accident.

Medical expenses

The plaintiff is entitled to be compensated for her medical expenses arising from her treatment in Fremantle Hospital on 16 and 17 May and for the aches and pains that she experienced thereafter because of the blow to her face and the slight strain to her neck. These injuries I find resolved by, at most, two months after the bus accident. Otherwise, the plaintiff has not proved that any medical expenses she incurred or is likely to incur in future, arise from anything causally related to the bus accident.

Assessment of damages

I accept that the bus accident caused the plaintiff to be thrown forward from her seat in the bus, such that it caused her to strike the right side of her face on the ticketing machine. I find that the plaintiff experienced pain in the right side of her face and a headache as well as pain in her neck. I find that there was probably a mild soft tissue injury to her cervical spine.
I am not satisfied on the balance of probabilities that the plaintiff suffered any loss of consciousness or any injury to her teeth, her eye, or her lumbar spine. I am not satisfied that the plaintiff was 'holding onto a bar for support' at the time that she was thrown forward from her seat or that she suffered any injury as a consequence of that. I am not satisfied that the bus accident caused the plaintiff to be thrown onto the floor.
I am not satisfied that any pain or discomfort caused by an injury received in the bus accident persisted beyond 18 July 2012. In my view, that is likely a generous allowance of time.
I assess the plaintiff's general damages for pain and suffering and any loss of amenities of life at $3,000.
I find that the plaintiff is entitled to be compensated for the medical expenses that she incurred as a consequence of the bus accident, to the extent of the ambulance expenses, the cost of her overnight stay in Fremantle Hospital and the cost of any imaging or other tests that were provided. If those costs have not already been paid by the defendant, it may be that orders allowing for reimbursement may be required.
With respect to other special damages, I am not in fact satisfied that the plaintiff incurred much in the way of special damages beyond the cost of over the counter pain medications for a period of about a month. I accept the, in my view, generous estimate submitted by the defendant of $1,000 as a global figure for these special damages, 'including travel'.
I am not satisfied that the plaintiff has suffered any economic loss past or future and I make no award in this respect.
In my view the nature of the injuries that the plaintiff in fact suffered in the bus accident were not such as to require any need for gratuitous services and I make no award in this respect.
Plainly there is no requirement for future treatment expenses and I make no award in this respect.

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.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JH
Associate to Judge O'Neal
15 MAY 2019