Becarevic v Basten - [2011] WADC 47

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BECAREVIC -v- BASTEN [2011] WADC 47

CORAM: WISBEY DCJ

HEARD: 15, 16 & 17 FEBRUARY 2011

DELIVERED : 28 MARCH 2011

FILE NO/S: CIV 1122 of 2008

BETWEEN: DRAGANA BECAREVIC
Plaintiff
AND
ADAM JAMES BASTEN
Defendant

Catchwords:

Negligence - Highway - Collision between vehicle executing Uturn, and following vehicle - Contributory negligence

Damages - Personal injury - Claimed economic loss - Gratuitous services

Legislation:

Nil

Result:

Defendant found negligent - Plaintiff's contribution assessed at 20%
Damages assessed at $13,800 after apportionment

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Separovic & Associates
Defendant: Talbot Olivier

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

Nil

WISBEY DCJ: The plaintiff Dragana Becarevic seeks damages for personal injury sustained in a motor vehicle accident on 2 May 2007, which it is alleged was a consequence of the defendant's negligence. Liability and quantum are in issue.
The accident occurred when the plaintiff, driving a Holden Commodore in a westerly direction on Ocean Keys Boulevard following the defendant's Mazda utility, collided with the utility as the defendant was executing a turn to travel east.
The plaintiff alleges that the defendant was negligent in that he failed to:
(i)give way to her in contravention of the Road Traffic Code 2000;
(ii)keep a proper lookout;
(iii)stop, swerve, steer clear, brake or otherwise manoeuvre his vehicle, so as to avoid the collision.
Particular (iii) is essentially an inelegant way of stating that the defendant drove across the path of the plaintiff's vehicle.
It is alleged that as a result of the collision the plaintiff sustained a fractured sternum, and acute strain and whiplash injury to the thoracic and lumbar spine, resulting (inter alia) in a loss of earning capacity and a requirement for gratuitous services.
The defendant denies that he was negligent, and states that the plaintiff caused or contributed to the accident by her own negligence in that she:
(i)failed to keep a proper lookout;
(ii)followed too closely behind his vehicle;
(iii)failed to take adequate precautions in the wet conditions (those precautions were never identified);
(iv)drove at an inappropriate speed in all the circumstances.

The evidence

The plaintiff

The plaintiff was born on 2 January 1968 in Sarajevo, Bosnia‑Herzegovina, and is 42 years old. She was educated to tertiary level in Sarajevo, and her work experience prior to coming to Australia was in hospitality and retail. She married on 18 July 1992, and has a son who was born on 7 February 1995.
The family migrated to Australia, arriving in Perth on 2 May 1996. Following a settling in period, during which the plaintiff resided in a refugee facility and had English lessons, she obtained a job with Betta Health Foods as a sales assistant in 1998. She continued in that employment for approximately six years and was promoted to the position of manager. Her employment terminated when the business closed. She then had a short period of employment with a similar business, HealthMinders Pty Ltd, before obtaining casual employment with a health food facility, Mega Discount Vitamins, where she was working initially 20 hours per week and became shop manager. She left that employment to go into business on her own account, and having entered into a lease with the City of Wanneroo for premises in the Ocean Keys Shopping Centre, commenced Ocean Keys Dolce Vita Gift Shop in February 2006. The shop was situated at 27 Ocean Keys Boulevard, Clarkson.
The plaintiff entered into a three year lease with a similar option, at an annual rent of $12,210 (plus GST) and variable outgoings. The stock in trade included ceramic vases, glassware, jewellery and homeware. The plaintiff did not employ any staff, but her husband provided some assistance on Saturdays. She did not have experience in operating such a retail outlet, and does not appear to have done any market research prior to embarking upon the enterprise. In the result, the business made losses of $4,994 in the year ended 30 June 2006; $26,598 in the year ended 30 June 2007, being the year in which the accident occurred; and $18,446 in the year ended 30 June 2008, being the year the business ceased operation.
The plaintiff stated that prior to the accident she was in excellent health.
In respect to the circumstances of the accident, the plaintiff stated that at about 8.45 am she was driving in a westerly direction on Ocean Keys Boulevard towards her shop. The weather was fine. She was travelling at about 50 km per hour following the defendant's white utility. Ocean Keys Boulevard comprises one bicycle lane and one traffic lane in each direction, separated by a median strip. As she approached Observatory Drive, which formed a junction on the southern side of Ocean Keys Boulevard, the plaintiff was two to three vehicles distance behind the utility. The plaintiff observed the utility's left turn indicator functioning. She said:
I see the indicator going left side and after that I see the car in front of me. He indicate and I just see he goes inside that street and after that I just see him in front of me.
When requested, she sketched the junction on the board in the court room and having done so, stated:
That is my car here and this car is just travelling here on the front of me. What's happening, I see him. He indicates that he goes this one here, the Observatory Drive street. Then this car just indicate to go on that side, he just go on the left side and that's all what I see. On that time I just going straight because this street is completely open – clear. After that I don't remember him, what he done there but I remember only when I saw him here and that's when it – the accident happened.
…
I see him, he just go inside the street (Observatory Drive). That's – for me, it's the street be clear, nothing anymore, no cars anymore.
She indicated that when she next saw the utility it was crossing Ocean Keys Boulevard in front of her, and her vehicle struck it at about the driver's door position. Although she stated that she tried to brake, the impression she gave was that it happened so suddenly she was unable to take any evasive action.
Immediately after impact the plaintiff felt pain in her chest. She was taken by ambulance to Sir Charles Gairdner Hospital where she underwent radiological examination and analgesic medication was provided. On discharge, she went home and rested. The following day she was still experiencing chest pain and some low back pain, and as a consequence attended her general practitioner, Dr Thelander, who prescribed rest and physiotherapy. The plaintiff attended a physiotherapist on three or four occasions, but ceased treatment because she began to experience a cold sensation in her foot. The chest pain lasted for about six months, but the back symptoms continued, although slowly abating. The symptoms contracted in warm weather. The plaintiff stated that she used heat packs, a magnetic belt, and the application of cream (presumably Deep Heat). She took Nurofen, Panadol and Advil for pain relief – all obtainable without prescription. She was vague about the usage rate and cost of the medication, and thought Advil cost about $5 or $6 for a packet of 20 and she was using about two to three packets per month. She also used sleeping tablets, although only for a short period.
As at the date of trial the plaintiff claimed she was experiencing back pain two to three times a month, and found sitting uncomfortable. She stated that she might be pain‑free for approximately seven days during a month. She also referred to experiencing intermittent sharp pain in the buttocks, particularly when lifting anything heavy. She claimed that her back symptoms prevented her from bending, mopping floors, hanging out the washing, and affected her capacity to cook.
When asked about her capacity to stand and sit for prolonged periods, the plaintiff, having been reminded of that difficulty by the question, demonstrated it in a somewhat unconvincing manner. In the event however she suggested that her sitting tolerance was of the order of two to three hours; and standing tolerance of the order of four to five hours.
The plaintiff stated that the accident occurred on a Friday and she did not open the shop on the following Saturday, Monday and possibly Tuesday. She then attended to check the shop, and thought that she did not open it for about six or seven days. In fact the accident occurred on a Wednesday. Upon resuming duties she stated that she had difficulty with activities that involved overhead reaching, collecting stock from suppliers, and displaying stock within the shop. Her husband attended the shop on Saturdays to provide assistance with any of the heavier activities. The plaintiff stated as a result of her symptoms her hours of business became irregular and she only opened the shop for trading approximately 25 – 30 hours per week although her evidence as to that was inconsistent (ts 43). She stated that customers were most active during periods associated with school drop-offs and collection.
The business closed in February 2008 because according to the plaintiff she lost too much custom as a result of the irregular hours. She then obtained employment as a sales consultant at Katie's women's clothing store, initial part‑time casual, but increasing to full‑time employment. It appears that from the commencement of the employment the plaintiff worked whatever hours were offered to her. When the store closed in June 2008 the plaintiff found employment at Strandbags, a business in Hay Street Perth retailing handbags, suitcases and travelling gear. She was employed as an assistant to the manager and there were several casual employees. The job involved lifting and weighing cases from time to time and tended to aggravate her back symptoms. Consequently she obtained employment as manager of a Florsheim Shoe Shop which position did not involve heavy physical activities. The plaintiff commenced that employment in October/November 2009 and is still so employed.
Before the accident the plaintiff undertook all the household domestic activities without assistance from her husband. She claimed that since the accident he did most of the domestic work but conceded that she still did some cleaning. When the plaintiff was performing the domestic work pre accident it was taking her in the order of three hours per day, but she had reduced her input to something in the order of half an hour a day.
For some time after the accident the plaintiff experienced a lack of confidence in driving.
The plaintiff claimed that her back symptoms had affected the sexual side of the marriage, and sexual activity had reduced to two times a week. Her relationship with her husband and her son had been adversely affected because she had become impatient.
The plaintiff's attention was directed to a report from Mr Anastas in which he recorded that she told him her low back pain had increased by about 30% since September 2008. She stated that was a mistake or misunderstanding because her back symptoms had in fact reduced.
In cross‑examination the plaintiff confirmed that her husband helped in the shop on a Saturday pre‑accident, but not to the extent that he did post‑accident.
As to the accident she confirmed her earlier evidence that the defendant activated the left hand indicator immediately before the collision. She demonstrated by sketching its position that prior to the collision the defendant turned left into Observatory Drive such that the rear of the utility was level with the southern alignment of Ocean Keys Boulevard. She demonstrated that at the point of collision the utility was travelling in a northerly direction across the western traffic lane of Ocean Keys Boulevard towards the central median strip opening, and that the collision occurred in the west bound lane.
The plaintiff stated that she had been following the defendant's vehicle from about the previous roundabout which was between 200 m ‑ 400 m east of Observatory Drive. She disputed that the weather conditions were overcast and the road surface wet. She confirmed her earlier evidence that once the utility turned left into Observatory Drive she did not see it again until immediately before impact when it was directly in front and travelling at right angles to her line of travel.
The plaintiff indicated that she was satisfied with her present employment where she was earning $620 per week net. She conceded that her present earnings were equal to that which she was able to obtain in the type of work in which she engaged prior to embarking upon the gift shop business.
She agreed that in the year ended 30 June 2006 the business Ocean Keys Dolce Vita made a loss of $4,998, and in the year ended 30 June 2007 a loss of $26,598.00. The tax return for the year ended 30 June 2007 demonstrates that income from sales was $18,928 but that the cost of sales was $24,162. As a consequence there was a trading loss of $5,234.00, which together with recurring expenses including rent and interest, gave rise to the declared loss. The plaintiff claimed that she had given herself five years to establish the business, but that is difficult to accept, particularly as she had demonstrated interest in selling the business in August 2006.
The plaintiff's attention was directed to her letter to Mr Pritchard of the City of Wanneroo dated 9.1.2008 (exhibit 7.28) in which she sought to be released from the shop lease on the grounds of personal hardship including:
(i)A lower back injury in the car accident which limited the time she was able to spend in the shop.
(ii)Her husband having undergone significant spinal surgery in September 2007.
(iii)The opening of another gift shop within 20 metres of the business premises.
The letter stated:
Not making enough money to just cover expenses forces us to put our house on the market. We make this decision very hard but this is a last resort.
She claimed that reasons (ii) and (iii) above were simply given to support obtaining a release from the lease, although in reality the back injury had caused the financial difficulties. She later partially resiled from that position. She agreed that she indicated to Mr Pritchard that the other gift shop 'Niche Gifts' was badly affecting her business. Also that she told him her husband had undergone a significant operation as a result of which he had been absent from work for some six months and she had been obliged to care for him which had kept her away from the business. She agreed in evidence that she had been required to care for her husband before he underwent surgery, but stated that had not been necessary subsequently. When it was put to her that she still did all the cooking she responded 'not that hard job'.
As already indicated the plaintiff claimed that her low back pain had affected her sexual relationship with her husband. She seemed to experience difficulty articulating the adverse consequences, making statements when asked how her sexual relationship had been affected such as 'I don't know, you supposed to ask this my husband'. She stated that when she was experiencing back pain she couldn't engage in sex. She suggested the frequency had reduced from four or five times per week pre‑accident to several times a week post‑accident, although she subsequently suggested it could be several times per month. Her evidence on this particular issue was unconvincing, and it is to be notes that this disadvantage was not referred to in the statement of claim (par 7), or to any medial specialist until September 2010.

Francis Louis Mastaglia

Professor Mastaglia is a consultant neurologist. He reviewed the plaintiff on the 7 September 2010 at the request of her solicitors – a medico‑legal assessment ‑ and issued a report bearing that date (exhibit 4) in which he stated that the plaintiff sustained a fracture of the body of the sternum. He conceded in evidence that statement was based upon what the plaintiff told him, and in fact there was no radiological evidence of such an injury. He recorded that the plaintiff told him that her low back pain had failed to resolve, and was continuous and of variable severity. He noted her complaint of diminished sexual activity, and reported that the chest injury had resolved fully after a month.
Professor Mastaglia concluded on clinical examination that movement of the lumbo sacral spine was restricted, and there was diffuse tenderness over the mid and lower lumbar areas of the spine in the mid line extending laterally over the para spinal muscles and facet joints. Straight leg raising was normal on both sides, and neurological examination was unremarkable.
Professor Mastaglia diagnosed a fractured sternum (based entirely upon the plaintiff's assertion) and a persisting musculo‑ligamentous soft tissue injury to the lower spine, with probable right lower lumbar facet joint strain. He recommended further radiological investigation to ascertain the nature and extent of the back injury, but that has not been pursued by the plaintiff. He classified the back injury as of moderate severity.
The plaintiff told him that she was off work for a period of three days post‑accident.
Professor Mastaglia considered that the plaintiff was fit for her present full‑time employment, but would be restricted with more physically demanding activity. He assessed the residual disability of the lower back as being of the order of 15%, noting that the level of disability could increase in the future because of acceleration of degenerative changes in the lumbo-sacral spine. The prognosis for full recovery was poor.
In his oral evidence Professor Mastaglia indicated that clinical assessment of the lumbo‑sacral spine was made whilst the plaintiff was in the standing position, and that it was a test of the freedom of movement of all the structures in the lumbo‑sacral spine. The straight leg raising test was carried out whilst the plaintiff was in the supine position. The fact that there was normal straight leg raising indicated that there was no compression of the lumbo‑sacral nerves in the spine, although the trunk flexion test had demonstrated some restriction in the freedom of movement of the spine itself. The fact that there was restriction of flexion indicated a problem with the structures of the spine (the vertebral bodies, discs, facet joints and ligaments). His conclusion that the prognosis for full recovery was poor was based on the fact that there was a significant period of time between the accident and his examination, without symptom resolution.
In cross‑examination Professor Mastaglia explained the error in reporting a fracture of the sternum on the fact that when he saw the plaintiff he was reliant on her history, as he was not provided with, or in possession of any other material. He agreed that there was no objective skeletal injury (i.e. bone injury), but referred to radiological evidence of mild degeneration in the facet joints at the L5/S1 level. Although there was some spinal degeneration, the fact that the plaintiff was not experiencing any symptoms prior to the accident was an indication that the accident rendered the degenerative changes symptomatic. Professor Mastaglia stated that the minor degenerative changes noted at the L5/S1 facet joints was an unusual finding for someone of the plaintiff's age and might be indicative of a propensity to develop premature degeneration.

John Kingston Ker

Mr Ker is a consultant physician in rehabilitation medicine and Director of the Sir George Bedbrook Spinal Unit which manages significant spinal injuries.

He reviewed the plaintiff at the request of her solicitors on 13 June 2008, 26 October 2009 and 23 October 2010, and his reports dated 29 August 2008 (exhibit 9.1). 4 December 2009 (exhibit 9.2) and 25 October 2010 (exhibit 9.3) deal with the reviews.
In his report of the 29 August 2008 Mr Ker recounted the plaintiff's history of the accident and symptoms. He reported that the plaintiff's symptoms had been largely managed with Nurofen. The plaintiff informed him that as a consequence of back pain she had difficulty maintaining sitting or standing positions for sustained periods, and suffered discomfort with repeated bending. He noted that she sought assistance from her husband with a number of domestic tasks, including some aspects of household cleaning. Mr Ker reported that when examined in the prone position the plaintiff experienced discomfort at the lumbar sacral junction, and discomfort on firm palpation of the lowest three lumbar spinous processes. Lumbar spinal flexion was to the lower third of the tibia, but straight leg raising was to 90 degrees bilaterally, without suggestion of neurological impairment.
Mr Ker diagnosed a contusion injury to the anterior chest, and a flexion strain injury to the lower lumbar spine, primarily musculo‑ligamentous in nature. He assessed the injury as of moderate severity. He regarded the plaintiff as fit for work as a sales assistant, although he thought she might have difficulty with full‑time work in the future. He considered that her medical needs were limited to simple pain relief, nocturnal sedation, and quarterly attendances upon her general practitioner. He felt that she had an ongoing disability of the order of 10% impairment of lumbar spine function.
In his report dated 4 December 2009 Mr Ker noted that the plaintiff was having little in the way of specific treatment, and that she claimed her son assisted her with domestic household cleaning. He reported that clinical assessment on 26 October 2009 revealed restriction of back extension, but an increase in forward flexion. Rotational movements were modestly curtailed to the left due to back pain. Again there was no evidence of neurological impairment in the lower limbs. He reported:
Your client continues to report low lumbar back pain with associated curtailed lumbar spine movement. The intensity of this pain and movement restriction does appear to vary from day to day. She has some sleep disturbance due to back pain. She reported some frustration with this variable occurrence of back pain which appears unassociated with any of her physical activities.
Mr Ker reported that he found little clinical evidence of material change since the first review, although it is to be noted that there had been an increase in lumbar flexion, and perhaps that is why he reduced his impairment assessment to 7% of lumbar spine function, which he regarded as permanent. He expressed the hope that there would be further clinical improvement, and reported that as the injury was musculo‑ligamentous in nature the prognosis for improvement was favourable.
On 25 October 2010 Mr Ker reported on his review two days earlier. He noted that the plaintiff complained of continuing low lumbar back pain restricting her ability to bend, lift and carry. She appears to have told him that a number of the household cleaning tasks were delegated to family members. He reported that clinically the plaintiff exhibited some restriction in thoraco‑lumbar movement, and the range of flexion had reduced to that of his first assessment.
Mr Ker confirmed the contents of his reports in evidence.
In cross‑examination he agreed that the plaintiff told him the accident occurred when a car to her left hand side undertook a U‑turn in front of her.
Mr Ker stated he had not seen any radiographs or radiological reports of the plaintiff's sternum or lumbar spine. He agreed that there was no evidence of injury to the bones, joints, discs or neural tissues of the spine. He agreed that the report of Dr Teo indicated minor degenerative changes at the L5/S1 facet joints, and stated that the restriction in spinal movement which he illicited was consistent with the degenerative changes if they were symptomatic. He stated however that further investigative steps were necessary to determine whether the degenerative changes were productive of symptoms. That investigation has not occurred. He felt that the plaintiff would need to continue to maintain mobilising and stretching exercises for her back, and commented that she may require occasion visits to a physiotherapist for instruction on an exercise regime.
Mr Ker indicated that resolution of the plaintiff's claim would be beneficial for her because (inter alia) it would reduce anxiety.

Charles Picken Thelander

Dr Thelander is the plaintiff's general practitioner and has seen the plaintiff in respect to this matter on 4 May 2007 (two days post‑accident), 29 May 2007, 3 July 2007, 16 January 2008, 23 January 2008 and in August 2010.
His reports of 2 July 2007 and 24 September 2008 were received in evidence (exhibits 10.1 and 10.2).
The report dated 2 July 2007 records that when the plaintiff presented on the 4 May 2007 she gave a history of pain in the mid sternum and right costochondral joints, and pain and tenderness in the sacroiliac joints. Forward flexion was limited by pain and stiffness, and she was unable to touch her toes. The report does not indicate the degree of restriction. Dr Thelander diagnosed soft tissue strain of the chest wall and lumbosacral spine, and reported that the injuries were of moderate severity. He prescribed anti‑inflammatory analgesics to be used as necessary, and referred the plaintiff for physiotherapy. As of 29 May 2007 he was of the view that the plaintiff was receiving physiotherapy.
It is apparent from the report that the plaintiff did not mention any vocational restrictions.
On 24 September 2008 Dr Thelander reported that the plaintiff had not been seen since the 23 January 2008 at which time she was still suffering thoracolumbar back pain and stiffness which was being addressed pharmaceutically. He reported that the plaintiff stated that her back pain was interfering with her ability to work full‑time as she could only stand for two to three hours before having to sit for twenty minutes.
He reported that as at 23 January 2008 the plaintiff was only fit for part‑time work.
In evidence Dr Thelander stated that as at August 2010 the plaintiff's position was stable and she was taking Nurofen or Advil on an intermittent basis and did not require any other form of treatment. He observed that she had found physiotherapy unsatisfactory. It is apparent that he did not see any need to monitor her condition.

Samir Becarevic

Mr Becarevic is the plaintiff's husband. He indicated that before the accident he was assisting the plaintiff in the gift shop on Saturdays, and when asked whether it was for the whole or part of the day responded 'probably part'. He then indicated that he did not do more than a couple of hours.
He stated that after the accident he worked at the shop on Saturdays from 8.30/9.00 am until 4.00/5.00 pm.
He had an operation to the cervical spine in September 2007, and suggested that after the accident and before his surgery he worked at the shop on Saturdays in 'probably a full day'.
In respect of the neck operation he stated that he was in hospital for two days and off work for a month, although he worked in the gift shop several weeks after the operation. Thereafter he was working for four hours on a Saturday.
When asked whether he assisted with domestic tasks pre‑accident he stated 'not really' and then indicated he might have been engaged in such activity for a half an hour a week. He claimed that after the accident he took over all the domestic duties including cooking, washing and ironing, and was involved in such activities for three to four hours per day. He was emphatic that the only domestic activity that the plaintiff undertook was some light dusting. He indicated that before the accident the plaintiff was very fit and patient, but there had been a dramatic change post‑accident such that she was very nervous, always complaining about pain, and reluctant to communicate. He claimed that he could not allow their son to be with her as her difficulties were affecting him. He stated that before the accident they engaged in sex three to five times per week, but post‑accident the frequency had reduced to once or possibly twice per month.
In cross‑examination Mr Becarevic seemed to suggest that his neck operation had not been terribly successful.
Mr Becarevic was not an impressive witness, and I am satisfied that he exaggerated the plaintiff's disability and physical incapacity. I do not accept his evidence.

Matthew John Aiken

Senior Constable Aiken attended the accident and was responsible for the completion of the P72 accident form (exhibit 1). He recorded the accident as happening at 9.10 am and that he attended at 9.30 am. He had recorded the atmospheric conditions as overcast, and the road condition as wet.

Violet Stojanovic

Ms Stojanovic, a rehabilitation counsellor, saw the plaintiff at the request of her solicitors on 15 October 2010 and issued a report dated 4 November 2010 (exhibit 11). Somewhat surprisingly the report demonstrates that Ms Stojanovic believed the plaintiff was a qualified lawyer, and had worked as a criminal lawyer prior to migrating to Australia. That error casts some doubt on the reliability of her assessment. It appears that the plaintiff told her that prior to the accident she had been building up the gift shop business and it was just starting to do well, which clearly was not the case.
Ms Stojanovic recorded the plaintiff's vocational history since coming to Australia, noting that she was presently managing the Florsheim shoe store in Harbour Town where her duties included assisting people with shoe fitting, an activity which one would expect would necessitate repetitive flexing of the spine. It appears the plaintiff told Ms Stojanovic that her husband and son undertook the heavier household chores, and that she had learned to accommodate those which she undertook, but had difficulty with cleaning the shower and toilet. Ms Stojanovic assessed the plaintiff as having good communication skills. She confirmed that the plaintiff told her that following the accident she struggled to work or stay at the shop for more than three hours a day because she was in too much pain. She indicated that the plaintiff had demonstrated an ability to find work that suited her situation.

Carol Marshall

Ms Marshall is the proprietor of a café that adjoined the plaintiff's gift shop, and consequently had contact with the plaintiff during the period the gift shop was operating. She stated that the plaintiff used to open the shop at about 9.00 am and close about 5.00 pm but reduced the hours after her accident, coming in a bit later in the morning and closing at about 3.00 pm to 3.30 pm. She stated that after the accident Mr Becarovic began coming in on a Saturday.

Nicholas Constantine Anastas

Mr Anastas, a consultant orthopaedic surgeon, reviewed the plaintiff on 23 September 2008 and 7 September 2010 at the request of the defendant. He issued three reports, the first two bearing the dates of the consultation, and the third dated 6 December 2010, after he had reviewed the reports of Professor Mastaglia and Mr Ker.
The report of 23 September 2008 (exhibit 12.1) detailed the history given by the plaintiff who told Mr Anastas she did not work for three days post‑accident, and thereafter only worked two to three hours a day until she closed the business. She informed Mr Anastas that she was taking Nurofen on an as‑needs basis, and there were weeks when she did not require medication. She stated that she averaged two packets a month. He reported that the plaintiff left him with the impression that her low back pain had improved, was spasmodic, sensitive to cold weather, and that she experienced about four to five episodes a month. The low back pain was increased by sitting for more than three hours, and by heavier household duties.
Mr Anastas reported that when he tested active movements of the thoracolumbar spine there was restriction on forward flexion, but a full range of rotation, lateral flexion and extension. There was no evidence of neurological compromise. He reported inconsistency between forward flexion in the erect position, compared to bilateral straight leg raising to 90 degrees in the supine position, and body flexing in the seated position. There was radiological evidence of degeneration at the L5/S1 facet joint.
Mr Anastas reported that it was likely the plaintiff sustained an exacerbation of pre‑existing asymptomatic minor degenerative changes at the L5/S1 facet joints, and noted that the inconsistency demonstrated on spinal movement may be indicative of symptom magnification. He anticipated resolution of symptoms with time.
Apart from home exercise, in respect of which Mr Anastas gave the plaintiff instructions, he regarded ongoing treatment as being limited to analgesic medication. He regarded her as being fit to engage in full‑time work as a customer service officer or in a gift shop, and did not consider that her symptoms had compromised her earning capacity. He reported:
Since onset of her low back pain, there has been improvement, and accordingly the prognosis is for her to continue to improve and eventually make a complete recovery and not be left with any permanent disability of the lumbar spine as a result of the motor vehicle crash on 2 May 2007. The pre‑existing minor degeneration at the L5/S1 facet joints could be a source of symptoms from time to time.
In his report of 7 September 2010 (exhibit 12.2) Mr Anastas noted that the plaintiff claimed to be taking Nurofen or Advil, and was using about three packets of 20 tablets a month. She used sleeping tablets in the winter months. He reported that the plaintiff advised that her low back pain had increased by about 30% since his earlier review. As already indicated, the plaintiff in fact maintained that she told Mr Anastas her back symptoms had reduced by 30%, although he was certain that he accurately recorded what had been said. I am prepared to accept that there may have been a misunderstanding. Mr Anastas commented that if there had in fact been a reduction of 30%, it simply confirmed his view that the symptoms were abating, and would resolve. He reported that the plaintiff stated she had difficulty with the house cleaning which took longer to complete, and as a consequence the house was not kept as clean as it was pre‑accident. She also mentioned difficulty with sexual intercourse. Mr Anastas again commented on inconsistencies during clinical testing of spinal movement. He confirmed his earlier diagnosis of an exacerbation of pre‑existing asymptomatic minor degenerative changes at the L5/S1 facet joints, but stated that by the time of the review it would have completely resolved. He reported that the necessity for any ongoing pharmaceutical assistance was due to the natural progression of the spinal degeneration.
In his report of 6 December 2010, written after perusing the reports of Professor Mastaglia and Dr Ker, Mr Anastas confirmed his earlier reported views.
In cross‑examination it was suggested to Mr Anastas that the fact that there was a full range of movement on straight leg raising was not inconsistent with restriction of lumbar flexion, but he was emphatic that it was. When it was suggested that it was not unusual to find restricted spinal movement without difficulty with straight leg raising, he said it did not happen, and that there was no anatomical or physiological reason to support such a proposition.
He stated that although the spinal degeneration demonstrated radiologically was described as minor, it had to be viewed in the context of the fact that the plaintiff was very young to have such degeneration. His opinion was that the plaintiff was exaggerating her symptoms.

Murray Ronald Sparks

Mr Sparks, the property co‑ordinator for the City of Wanneroo, had contact with the plaintiff when she was operating the gift shop. He said that on three or four occasions during the earlier stages of the business the plaintiff told him that trading was a bit quiet. He confirmed that in August 2006 the City of Wanneroo received an enquiry from the plaintiff concerning assignment of the lease.

Mark Kevin Pritchard

Mr Pritchard is the commercial leasing officer for the City of Wanneroo. He stated that he met with the plaintiff and her husband on 8 January 2008 concerning her desire to terminate the lease. The reasons she advanced were that there was a competitor, Niche Gifts, which was impacting on her sales; she had been in a car accident which resulted in her having to reduce her hours of activity; and her husband had undergone an operation and she had an obligation to care for him at home (the reasons identified in exhibit 7.28).

Terrence Charles Posma

Mr Posma, a chartered accountant, prepared a report dated 5 September 2010 on the fiscal viability of the Ocean Keys Dolce Vita Gift Shop (exhibit 13) and confirmed the contents of the report in evidence. He noted that the business had operating losses in the years 2006, 2007 and 2008 of $4,994, $26,598 and $18,446 respectively. He concluded that the losses were the consequence of the high cost of sales and low turnover, the business having in all three years failed to earn sufficient gross profit to cover expenses; the average sales per week in all three years being insufficient to discharge the operating expenses, let alone the direct cost of stock purchases.
As appears from the taxation returns, the cost of goods sold was higher than the sales achieved, thus generating a trading loss.
Mr Posma concluded that the business activity statements demonstrated that the business did not have more than an average turnover of $2,288 for any month during its operation, and did not demonstrate any growth in sales in the pre‑accident period. A turnover of at least $3,560 per month was necessary in order to break even; and $7,727 per month in order to achieve a profit of $25,000 per annum.
He reported that the post‑accident income was higher than pre‑accident, and slowly growing, indicative of the fact that the turnover was not affected by the plaintiff's health problems.
Mr Posma was cross‑examined concerning periods during the day and during the year when it might be expected that trading would be more active and expressed the view that shoppers were not at their most active in the mornings. He agreed that three important factors going to the success of this type of business were the personality of the proprietor, the location of the business premises, and the state of the economy. He noted that there was a slowdown in the Australian economy commencing in November 2007, followed by two years of restrained and more carefully considered consumer activity.

The defendant

The defendant is a 31‑year‑old commercial supervisor for an irrigation company.
On the morning of the accident he was driving a Mazda Bravo Spacecab four‑wheel drive vehicle. He was very familiar with the vehicle, having driven it for about three years. He was endeavouring to locate a park where his employer was carrying out irrigation work. He indicated that originally he had been heading in an easterly direction along Ocean Keys Boulevard and had turned at the Bondi Link roundabout to travel west. He stated that his speed whilst travelling in a westerly direction was approximately 40 ‑ 45 km per hour. He realised that he was travelling in the wrong direction. As a consequence, when he was approximately 50 m ‑ 100 m east of the Observatory Drive junction, he checked in his rear vision mirror to see if there were any cars behind him as he intended to make a right turn through a break in the median strip at the junction. When he was approximately 50 m prior to the junction he engaged the right turn indicator, began slowing, and as he was making the turn his vehicle was struck by the plaintiff's vehicle and turned approximately 180 degrees.

He described the weather conditions as overcast as it had been raining, and the road surface was wet. He denied that he gave a left‑hand indication, as maintained by the plaintiff.
The impact occurred as his vehicle was struck on the right‑hand side towards the rear.
Prior to executing the turn he veered slightly to the left‑hand side, conscious of the fact that his vehicle had a fairly large turning circle, although he stayed within the traffic lane and did not encroach on the bicycle lane. He agreed that the sketch on exhibit 1 accurately demonstrated the position of the vehicles after impact. Following the collision the defendant checked on the plaintiff, and as she was complaining of chest pain rang for an ambulance which arrived 10 or 15 minutes after the call. The paramedics marked the position of the vehicles on the roadway. The defendant left before the police arrived, and reported the accident at the Murdoch Police Station later that day.
The defendant said he began to make the turn when his vehicle was no more than a metre past the beginning of the break in the median strip, and claimed to be confident of his capacity to make the U‑turn in the available space. The defendant's vehicle was travelling in a north‑westerly direction at the moment of impact.
In cross‑examination the defendant stated that he did not encroach into the cycle lane being aware that was not permitted.
Contrary to his evidence‑in‑chief, he stated that he indicated at the same time as he looked into the rear vision mirror, but then resiled from that position returning to the position that he checked in the rear vision mirror before activating the indicator. He agreed that having applied the indicator and executed a turn, it would deactivate when the steering returned to the neutral position. He was absolutely certain that although he moved to the left, he did not encroach on the cycle lane.
It was agreed that the defendant's vehicle had a 12.6 m turning circle and that the width of Ocean Keys Boulevard from kerb to kerb, including the cycle lanes, was 12.5 m.
The defendant's attention was drawn to a memorandum completed by him in response to a traffic infringement notice (exhibit 14.3) where he relevantly stated:
The U‑turn made was a legal U‑turn as I did not cross out of my lane, I only encroached into the cycle lane slightly to be able to make the turn in my large vehicle.
When it was put to him that was in conflict with his evidence, he stated that what he meant was that he may have touched the white line but not actually gone into the cycle lane.
The defendant disputed the proposition that preparatory to turning his vehicle merged into Observatory Drive, stating that it was always north of the white line dividing the traffic and cycle lanes. His attention was directed to his accident report (exhibit 14.2) in which he stated:
I was heading west on Ocean Keys Boulevard where I was making a U‑turn between median strips. I indicated right to make turn. Due to my vehicle not having a big turning circle, I merged into a street on the left slightly to give myself more room. As I turned right, I was hit from a car behind me, which hit the side of my vehicle.
He agreed that the reference to his vehicle not having a big turning circle was incorrect and should have read 'due to my vehicle having a big turning circle'. He stated that the reference to merging into the street on his left was a mistake as he did not go into that street, and that is consistent with his locality sketch on the accident report form. The defendant stated that when he was making the sketch, he was basically showing what happened ‑ giving a rough indication of what happened – and not going into careful detail. He stated that his vehicle was at a 45 degree angle to the line of travel of the plaintiff's vehicle at the point of collision.
He stated that what he meant by 'merging slightly' was just moving to the left but staying within the westbound traffic lane. He denied giving a left‑hand traffic indication at any stage. He was emphatic that the right‑hand indicator was operating immediately prior to impact.

Findings

Liability

The defendant gave evidence concerning the circumstances of the accident in a calm considered manner, and I accept that before beginning to execute the turn he engaged the vehicles right hand turn indicator. I am not satisfied that before activating the indicator he checked in the rear vision mirror for following traffic. In the event that he did, he paid insufficient attention and failed to observe the plaintiff's vehicle which was clearly following him. I do not accept his evidence that in the process of executing the turn his vehicle did not cross the southern alignment of the western traffic lane in which it had been travelling. Had it not done so there would have been insufficient room for the defendant to execute the turn, bearing in mind that the distance from kerb to kerb, including the cycle lanes, is 12.5 m which is insufficient to accommodate the vehicle's turning circle, as he would have well appreciated. I am satisfied that when executing the turn the defendant merged or veered slightly into Observatory Drive, such that the plaintiff, who was not paying particular attention, was mislead into believing that she could pass. Being unaware of the presence of the plaintiff's vehicle, the defendant then turned across its path when it was clearly unsafe to so do.
The plaintiff's evidence concerning the circumstances of the accident was vague, and lacked particularity. Quite clearly, had she been following the defendant's vehicle as closely as she claimed, and had the defendant turned into Observatory Drive such that the rear of his vehicle was level with the southern alignment of Ocean Keys Boulevard, the plaintiff's vehicle would have passed the junction before the defendant could execute a turn and proceed out into its path. I do not accept that the defendant engaged the left hand turn indicator, as his intention at all times was to execute a right hand or U‑turn so as to travel east. It is quite clear from the plaintiff's evidence concerning the circumstances of the accident that she was not paying particular attention to the defendant's vehicle, being conscious only of the fact that it veered left and then appeared in front of her. Her inattention left her without an opportunity to take any evasive measures and thus contributed to the collision.
I am satisfied that on the balance of probabilities that the defendant was negligent in failing to keep a proper lookout for following traffic, and in executing the turn in the manner in which he did, across the path of the plaintiff's vehicle.
I am satisfied that the plaintiff was negligent, contributing to the happening of the accident, in failing to keep a proper lookout as a result of which she misjudged the intentions of the defendant, and that in the circumstance it is just that her damages be reduced by 20%. In the circumstances she is entitled to 80% of assessed damages.

Quantum

I am satisfied that as a result of the accident the plaintiff sustained a soft tissue injury to the sternum and chest wall, and a musculo‑ligamentous injury to the lumbo‑sacral spine superimposed on minor degenerative changes.
Apart from specialist reviews the consequence of legal referral, the plaintiff has only received limited palliative assistance. She consulted her general practitioner two days after the hospital assessment on the day of the accident, and did not return for review for 25 days. The evidence discloses that she has consulted her general practitioner concerning her back symptoms on six occasions, the last being in August 2010. Prior to August 2010 she had not seen him for 18 months. She received a limited session of physiotherapy but ceased because she did not regard it as beneficial. Treatment has essentially been pharmaceutical.
The plaintiff was self employed at the date of the accident and continued in that vocation until February 2008. Since then she has been employed in sales; and since October/November 2009 as manager of a shoe retailing outlet, a position which must involve a reasonable level of physical activity and public relations. That is inconsistent with significant disability.
The plaintiff appeared to be comfortable during the course of her evidence, and I formed the impression that she exaggerated her level of symptoms, and their impact upon her daily life. I do not accept that she has the degree of difficulty asserted by her in performing domestic duties, and there is inconsistency in her evidence and the statements made by her to various medical specialists concerning the level of domestic duties performed by her; her capacity to undertake them; and the degree of assistance provided by members of her family. Also she informed the City of Wanneroo that she had been obliged to care for her husband following his spinal surgery. The evidence given by her husband concerning that aspect of the claim was unconvincing, and in conflict with her evidence, since he asserted she did no more than light dusting.
I reject Mr Becarovic's evidence concerning the domestic contribution he has made since the accident. It is inconsistent with the plaintiff's account of her domestic restrictions; and her accounts given to the various specialists, and in evidence, are in themselves inconsistent. The family of three reside in a townhouse and the necessary household activities to accommodate their requirements are not likely to be onerous. It is probable that for a short period of time post accident Mr Becarovic would have made a greater contribution to the running of the household than he had previously, but that is no more than one would expect in any domestic relationship. I am unable on the evidence to arithmetically quantify any loss suffered by the plaintiff necessitating the provision of services, but any loss was modest and well below the threshold for gratuitous services.
I do not accept the plaintiff's evidence, or that of her husband, concerning the impact of her injuries on the physical side of the marriage. She was inconsistent in her description of the reduction in the regularity of sexual intercourse, initially claiming it had reduced to maybe twice a week (ts 55) and then in re-examination on the issue, claiming it was once or twice a month (ts 163). I refer also to my previous comments on this aspect of the claim.
Mr Ker, who reviewed the plaintiff on three occasions, observed clinical improvement, and expressed the view that because the back injury was musculo‑ligamentous in nature the prognosis was favourable. He felt however that she may require occasional visits to a physiotherapist for instruction on an exercise regime, a course which as a trial the plaintiff had not pursued.
Mr Anastas considered that the plaintiff demonstrated inconsistency in her clinical presentation. He observed improvement in her condition, and prognosticated that she would make a full recovery from the accident caused symptoms which resulted from an exacerbation of pre‑existing asymptomatic minor degenerative changes at L5/S1. For the reasons outlined by him he considered that she had recovered from accident caused exacerbation by September 2010, stating that any symptoms which she experienced thereafter would be due to the natural progression of the spinal degeneration.
I accept Mr Anastas' evidence, which is consistent with the improvement of the plaintiff's symptoms, the lack of requirement for medical intervention, and her steady employment history from the time she closed the gift shop business.
In the schedule of damages the plaintiff claims a past loss of $70,044 being the difference between the actual loss and the expected profit of the gift shop business in the year ending 30 July 2008. The first point to make is that the figure of $70,044 is arrived at because of financial misunderstanding. The trading loss in the year ending 30 June 2008 was in fact $18,448 and not the figure of $45,044 referred to in the plaintiff's calculations, which is the combination of the loss for that year and the deferred loss of $26,598 carried over from the previous year. In the result the amount sought by the plaintiff should be $43,448. The schedule does not appear to suggest that the plaintiff's symptoms had an adverse financial consequence in the year ended 30 June 2007.
The plaintiff makes what has come to be called a 'global' claim for $50,000 loss of earning capacity together with $5,000 loss of superannuation benefits, based upon the claim that her physical restrictions disadvantage her in the labour market, and that she will be obliged to avoid occupations that involve heavy physical or repetitive manual work, or prolonged standing or walking.
I am not satisfied that the accident caused injuries and/or symptoms (such as they are) disadvantaged the plaintiff vocationally for more than a few days during the period that she was operating the gift shop post accident, or at all during her subsequent employment. So far as the shop is concerned, it is significant that she did not advise Dr Thelander that she was suffering difficulty carrying out her duties and seek medical assistance, as might have been expected if there were adverse economic consequences. In addition the financial documentation demonstrates that the business was never viable, and rather than show a decrease in sales post accident, there was in fact a small increase. The plaintiff's statement to Ms Stojanovic and her evidence that she was only opening the shop for about three hours per day was in conflict with her evidence that it was open for 25 ‑ 30 hours per week (ts 43) and does not sit easily with the evidence of Ms Marshall. It is also to be observed that although she stated in evidence that the shop was closed for 6 ‑ 7 days immediately post accident she told Professor Mastaglia and Mr Anastas it was closed for three days.
Since closing the business the plaintiff has not experienced any difficulty obtaining full‑time employment in sales positions, and is presently employed in a managerial capacity. She concedes that she is presently able to earn an income of the level that would have been available to her pre‑accident.
The plaintiff has failed to establish any past economic loss, or loss of earning capacity.
I found the plaintiff to be an unreliable historian, and of course the medical assessments of her condition are substantially reliant upon the history of symptoms and disability.
The plaintiff is to be compensated for the pain, suffering and physical incapacity resulting from a contusion injury to the anterior chest, and a musculo‑ligamentous injury to the lower lumbar spine exacerbating minor degeneration at the L5/S1 level. The chest injury resolved quickly. The back injury gave rise to a moderate level of painful symptoms which I find gradually resolved over a period of 3 1/2 years. Such problems as she now experiences are not accident related.
I assess the physical aspects of the plaintiffs claim as being of the order of 5% of a most extreme case which quantifies as $16,850.
The plaintiff claims $9,674.16 for future medication; $2,675.70 for future treatment; and $134,940 for future assistance. As she has essentially recovered from the effects of the accident no allowance is made under those heads of damage.
The parties have agreed past travelling and chemist costs at $400.
In the result I assess damages at $17,250, which after apportionment results in a figure of $13,800.
Because of s 3C(4) of the Motor Vehicle (Third Party Insurance) Act 1943 (as amended) the plaintiff is entitled to judgment in the sum of $320.