Ibrahim v Purdy - [2022] WADC 57

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   IBRAHIM -v- PURDY [2022] WADC 57
CORAM:   SHARP DCJ
HEARD:   22-25 NOVEMBER 2021
DELIVERED          :   20 JUNE 2022
FILE NO/S:   CIV 4416 of 2019
BETWEEN:   ZIYA IBRAHIM
Plaintiff
AND
AARON WAYNE PURDY
Defendant

Catchwords:

Tort - Negligence - Defendant driver involved in motor vehicle accident - Negligence admitted - Whether plaintiff suffered physical injury - Whether plaintiff suffered psychiatric condition - Post-traumatic stress disorder - Causation - Damages - Assessment

Legislation:

Civil Liability Act 2002 (WA)
Health and Other Services (Compensation) Act 1995 (Cth)
Motor Vehicle (Third Party Insurance) Act 1943 (WA)

Result:

Judgment for the plaintiff
Plaintiff's damages assessed as $42,045.88

Representation:

Counsel:

Plaintiff	:	Mr A A Nolan
Defendant	:	Mr G P Bourhill SC

Solicitors:

Plaintiff	:	Trewin Norman & Co
Defendant	:	Mills Oakley

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

Browne v Dunn (1894) 6 R 67 (HL)
Houlahan v Pitchen [2009] WASCA 104
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Syme v Roos [2016] WADC 164
Winiarczyk v Tsirigotis [2011] WASCA 97
Zaghloul v Bayly [2021] WASCA 125

SHARP DCJ:

The plaintiff's claim

The plaintiff, Mr Ibrahim, seeks damages for personal injuries suffered on 19 August 2018 when a car driven by the defendant, Mr Purdy, entered the property on Amberton Avenue, Girrawheen, Western Australia (property) where Mr Ibrahim and his family lived. Mr Purdy's car collided with another car belonging to a friend of Mr Ibrahim which was parked on the driveway of the property. The friend's car, in turn, struck a vehicle belonging to Mr Ibrahim and it also struck the property itself.
I will refer to those events in these reasons as 'the accident'.
Mr Ibrahim contends (and Mr Purdy now concedes: defendant's outline of opening submissions dated 8 November 2021, par 2.2) that the accident was caused by Mr Purdy's negligence.
Mr Ibrahim alleges that the accident caused him to sustain injury. He says that his injuries include soft tissue and ligamentous injuries to his left arm and elbow and also psychological injury, including symptoms of post-traumatic stress disorder, panic attacks, generalised anxiety disorder and depression: plaintiff's statement of claim filed 11 November 2019 (Statement of Claim), pars 4.1 and 4.2.
Mr Ibrahim says that he has required and will continue to require various forms of treatment and assistance, including visits to and treatment from his general practitioner, from an orthopaedic surgeon and from a clinical psychologist, as well as physiotherapy treatment, massages, a home exercise programme, pain‑killing, anti‑inflammatory and antidepressant medication and various forms of radiological imaging, including ultrasound and magnetic resonance imaging (MRI): Statement of Claim, pars 5 and 5.1 ‑ 5.8.
Mr Ibrahim says that he has endured pain and suffering and suffered loss of amenities of life, including pain, tenderness, bruising and restriction of movement to his left arm and elbow, referred pain up and down his left arm, loss of strength and grip to his left arm, anxiety, stress, depression, nightmares, flashbacks, panic attacks and ruminations: Statement of Claim, pars 6 and 6.1 - 6.10.
He says he has suffered permanent impairment to his arm and elbow and permanent psychological impairment. He says that he has suffered past loss of earnings and loss of future earning capacity and has incurred and will continue to incur special damages: Statement of Claim, pars 7 - 10. Mr Ibrahim also claims damages, together with interest on any special damages.
However, Mr Ibrahim's claim is limited to damages for non‑pecuniary loss, special damages, future medical expenses and travelling expenses. He does not claim damages for loss of earning capacity and gratuitous services: plaintiff's outline of opening submissions dated 14 October 2021, pars 5 and 6.

The plaintiff's case in summary

Mr Ibrahim says that on 19 August 2018, he was sitting on the front verandah of the property when a motor vehicle driven by Mr Purdy along Amberton Avenue left the road and collided with a Toyota Kluger parked in the driveway of the property. The Toyota Kluger then collided with Mr Ibrahim's own vehicle and also with a brick pillar adjacent to the front verandah of the property which subsequently collapsed.
Mr Ibrahim says that as the accident occurred, he was struck to the left elbow by bricks which fell from the collapsing brick pillar.
In addition to physical injuries, Mr Ibrahim also alleges that, shortly before the accident, children (including Mr Ibrahim's own children) were playing at the rear of the Toyota Kluger. From Mr Ibrahim's seated position on the front verandah he was unable to see the children, but immediately after the accident he could see the damage to the vehicles in the driveway of the premises. In particular, he says he observed a large amount of red coloured liquid on the concrete of the driveway. Mr Ibrahim says he thought that his children had been injured or killed in the accident. As a result, he claims to be suffering from post-traumatic stress disorder.
It is Mr Ibrahim's case that Mr Purdy was negligent in failing to stop, steer or swerve his vehicle to prevent it leaving Amberton Avenue, failing to keep any lookout or any proper lookout and driving his vehicle at a speed that was excessive in the circumstances. As a result of the accident Mr Ibrahim alleges that he suffered physical and psychiatric injury and consequential loss and damage.
Mr Ibrahim's claims about his medical condition, diagnosis, treatment, assessment and prognosis are, he says, supported by his general practitioners, Dr Nisreen Al-Salihee and Dr Abdulsattar Ali, by his orthopaedic surgeon, Mr Homan Zandi, by his treating psychologist, Ms Yvonne Harvey, by Dr Frederick Ng and Dr Gemma Edwards‑Smith, both consultant psychiatrists and by Chris Hardie, a physiotherapist.

The defence

In his defence dated 19 December 2019, Mr Purdy admits the facts pleaded by Mr Ibrahim, but only to the extent that Mr Ibrahim was located at the property at the time of the alleged accident, 19 August 2018, and that there was a collision of vehicles at the property. He denies all of the other allegations in the Statement of Claim and puts Mr Ibrahim to proof of the same.
However, at trial, Mr Purdy through counsel accepted that he drove his motor vehicle negligently, that his motor vehicle hit another vehicle parked in the driveway of the property and that the second vehicle struck a brick pillar that formed part of a patio at the front of the property. Mr Purdy also accepts that, because of the impact, part of the brick pillar collapsed, and bricks fell to the ground: defendant's outline of opening submissions dated 8 November 2021, par 2.2.
What Mr Purdy does not accept, however, is that Mr Ibrahim was seated on the front porch at the time of the accident. He says that various items of evidence are inconsistent with that alleged fact. Mr Purdy submits that, more probably than not, Mr Ibrahim, his wife, his friends and their children were all inside the house when the collision occurred. Mr Purdy therefore disputes that Mr Ibrahim was struck by any falling bricks as he alleges.
At all times, Mr Purdy's position at trial was that Mr Ibrahim bears the onus of proving that the cause of his loss was the negligence of Mr Purdy.
He submits that in the absence of any or sufficient evidence connecting his negligence with Mr Ibrahim's alleged loss, Mr Ibrahim must fail in the action. If the court is not satisfied that Mr Ibrahim was struck by a falling brick, there can be no basis for finding that Mr Purdy's negligence caused Mr Ibrahim's alleged physical injury.
Mr Purdy takes the same position in relation to Mr Ibrahim's claim that he has sustained a psychiatric injury. That is, Mr Ibrahim must establish a factual base that leads to the conclusion that Mr Purdy's negligence caused that incapacity.
Mr Purdy concedes that it was accepted by most of the medical practitioners who examined Mr Ibrahim that his physical and psychiatric symptoms are a consequence of the accident. However, Mr Purdy suggests that these conclusions are founded upon Mr Ibrahim giving his own account of the accident to those medical practitioners, namely that he was struck by a falling brick at the time of the collision and that he feared for the welfare of his children in the front yard. That version of events, Mr Purdy says, is contradicted both by the account Mr Ibrahim provided to Mr Halliday, an orthopaedic surgeon who examined Mr Ibrahim at the request of Mr Purdy's solicitor ('he was sitting inside when he heard the accident'), and Dr Gemma Edwards‑Smith, a psychiatrist who also examined Mr Ibrahim, again at the request of Mr Purdy's solicitor ('as he was going inside, something happened like an earthquake' and 'he was squeezed between the wall and the door').
It is also contrary, Mr Purdy says, to the explanations and commentary provided by both Mr Ibrahim and one of his sons to Channel 7 and Channel 9 television reporters who visited the property shortly after the accident. Those reports were recorded on video footage: exhibits 4 and 5.
Specifically, Mr Ibrahim's son stated to those reporters that he had been called inside to eat 10 minutes before the accident. Further, Mr Ibrahim provided an explanation to the reporters of what he believed happened and makes no reference at all to his being seated on the verandah or being struck by a brick. Mr Purdy says that if the court finds that Mr Ibrahim was sitting inside the house with his children when the accident happened, then it must conclude that Mr Ibrahim was not struck by any falling bricks, which would call into question the whole basis of his alleged physical and psychiatric condition.
Also, it is Mr Purdy's contention that the medical evidence indicates that Mr Ibrahim had a pre-existing problem with his left elbow. Accordingly, Mr Purdy says that if the court is satisfied that a brick did strike his elbow, then at worst it has aggravated a pre‑existing condition and it has not caused any great disability.
Mr Purdy says that the alleged psychological impact of the accident is based on the proposition that Mr Ibrahim thought his children could have been injured, which is a contention that should be rejected, notwithstanding that Mr Ibrahim has made much of this point.

The issues

The parties agree that the issues for determination are whether Mr Ibrahim suffered a compensable injury and, if so, whether it was caused by the accident. If the answer to both questions is in the affirmative, the court must then assess the quantum of damages payable to Mr Ibrahim.

The plaintiff's evidence

Mr Ibrahim was 53 at the date of the accident. I accept that the year of Mr Ibrahim's birth as set out in par 1 of the Statement of Claim (1069) was a typographical error. On the date of the accident, he resided at the property with his wife, Nebras Feili, his daughter Zahra and his three other children: ts 9 - ts 10.
He was born in Iraq and his first language is Arabic. At the relevant time he had been living in Australia for approximately 26 years: ts 9.
He gave evidence that on 19 August 2018 his friend, Mr Kamal Mandlawi, and Mr Mandlawi's family came to visit Mr Ibrahim and his family at the property. Mr Ibrahim said that his children and Mr Mandlawi's children were out the front of the property, near the gate, playing on a scooter: ts 10.
Mr Ibrahim said that later that day, in the afternoon, he and Mr Mandlawi were sitting on the verandah of the property. Mr Ibrahim's evidence was that they were not inside the house. He explained that the house was small and Muslim women 'take the hijab and stay together', that is, the women would stay together inside the house while the men sat outside: ts 10 - ts 11.
Mr Ibrahim described the verandah as being at the entrance of the main door to the property and being approximately three metres long and two metres in width: ts 12.
He said that he and Mr Mandlawi were sitting on milk crates and that Mr Ibrahim was sitting near the verandah pillar. The pillar was on Mr Ibrahim's left side: ts 13.
Mr Ibrahim further identified the position they were sitting at the time the accident occurred by reference to the photograph exhibit 3.6 on which he marked the position he was seated in, which became exhibit 6.
Mr Ibrahim says that at about 4.30 pm his wife and Mr Mandlawi's wife called to them to come and eat something. Mr Ibrahim stated (ts 10):
And this time I tell my kids and friend, 'Please, come inside. You can play around the house'. I don't like to stay outside, because this is a street it's had a lot of accident before. And they said, 'No. Dad, leave me alone. Just for five, 10 minutes we playing with the scooter'.
When asked where exactly the children were playing prior to the accident, Mr Ibrahim answered (ts 11):
Yeah. There is my gate near to the avenue, about three and four metre. They sitting there, each by - each one use the scooter and come back. Stay in the back - the car, Kamal's car, near to the gate.
Mr Ibrahim went on to say (ts 11):
And we sitting outside doing something. I talking and we look for the kids. I'm not sure exactly, about five to 10 minutes. When we went to put the (indistinct) to sit something happened like, (indistinct). I ‑ I think it's a truck come in to us or - and hit Kamal car and hit my car, and then the verandah pillar fell down to me. But I can't remember what's happened, because I think about the kids. Where are the kids? And this time we jump from the - between the cars when they struck together. And we look there is like, a blood. It's big area. We don't know it's just oil or the water is - for the radiator and the gearbox, both - both is red. They mix like, blood. And this time I shock and I fell down … but this time I'm shock and my body is feel - it's not very well.
Mr Ibrahim also said that as the verandah pillar fell, 'just about one brick' struck him on his left elbow: ts 14.
Mr Ibrahim identified, by marking on exhibit 3.13 in a red circle, oil that had flowed from underneath his vehicle following the accident. The marked photograph became exhibit 2. When asked about the significance of the oil, he said (ts 19 - ts 20):
Because I don't - I don't know this is oil, because it's red. But I don't know this is oil …
And when did - and when did you first see that - that oil or that red on the ground?---When I jumped from between my car and Kamal car, and come around I see there is no - no kids outside. And I fell this area down to see under the car. There is no one …
Under cross-examination, Mr Ibrahim stated that the brick pillar fell 'gradually' in separate pieces. He repeated that he was struck by 'just one brick': ts 53.
He rejected the proposition put to him that he was not on the verandah but instead inside the house at the time of the accident and suggests that the doctors may have been confused or misunderstood him: ts 44 ‑ ts 49.
Mr Ibrahim said that after leaving the children at the front of the house, he went inside the house to get a jacket before returning to the front verandah. His clear evidence was that he was sitting on the milk crate on the verandah at the time of the accident: ts 40 and ts 41.
As to the location of the children at the time of the accident, Mr Ibrahim accepts that he had asked the children to come inside. However, Mr Ibrahim said that the children refused to do so: ts 40.
He was questioned about this and stated (ts 41 - ts 42):
So you knew they'd gone. You knew they'd gone?---No. No. I don't - I don't know exactly. Because I go inside. I come. And - and this time maybe they go inside, but I'm not sure exactly.
…
You knew they weren't outside, didn't you?---Who?
You knew the children were not outside?---No. No. They was outside.
You were all inside, weren't you? When the accident happened you were all inside?---After that they said to me it was inside.
But you were inside as well?---No. No. I'm in the verandah.
Well, the reporter says you were all inside?---Inside, around the house. It's not inside house.
No. Inside the house?---No. I didn't say.
The reference to the 'reporter' in that exchange is a reference to the television reporters from Channel 7 and Channel 9 mentioned earlier in these reasons and who visited the property on the day of and shortly after the accident. As I have said, Mr Ibrahim and one of his sons were interviewed: ts 30 - ts 38.
Mr Ibrahim also gave evidence that in the days following the accident he experienced pain in his left elbow. Ultimately, some five to seven days after the accident, he saw his general practitioner, Dr Al‑Salihee. Mr Ibrahim stated that he was given ibuprofen for the pain, which he took when he felt he needed it, which he estimated to be four to six times a week and at night: ts 25 - ts 26.
Mr Ibrahim said that he continued using ibuprofen at that frequency until he attended Mr Zandi, the orthopaedic surgeon. He was then referred for, and had, an injection in his left elbow, following which the pain in his elbow was 'a little bit better': ts 26 - ts 27.
Mr Ibrahim states that he experiences pain when he uses a 'manual' (counsel for Mr Ibrahim suggests, and I think that it is most likely, that he was referring to a manual transmission vehicle), does heavy work at home or lifts shopping or heavy objects: ts 27.
He said that notwithstanding the passage of time and undergoing physiotherapy, injections, avoiding using his left arm and taking ibuprofen, he continues to experience pain to his left elbow, which he says was severe, until he had the injection to his left elbow. He describes the current severity of his pain as being around 4 to 6 out of 10: ts 28.
Regarding his psychological symptoms, Mr Ibrahim gave evidence that Dr Al-Salihee referred him to Ms Harvey for counselling, whom he saw on a monthly basis. He said that he told Ms Harvey about 'very bad dreaming' or nightmares about the accident and shouting in his sleep. He described that 'always I remember the accident': ts 29. Although he accepted that Ms Harvey's treatment was providing him with some benefit, his evidence is that he still thinks about the accident when he 'go(es) out and come(s) inside', and when he sees photographs of the accident: ts 30.
I consider Mr Ibrahim to be a truthful witness and I accept his evidence in its entirety. Any inconsistencies in his evidence were slight and in my view can be explained by the fact that first, English is not his first language and second, he was giving evidence through and with the assistance of an interpreter.

The evidence of Nebras Feili

Ms Feili is Mr Ibrahim's wife. Ms Feili utilised the services of an interpreter for the entirety of her evidence.
She said that usually when Mr Mandlawi visited, he and Mr Ibrahim would sit outside beside the door at the front of the house on milk 'boxes': ts 59 and ts 60.
She confirmed that they were outside during the afternoon of 19 August 2018 and she was inside the house. She said that her children and Mr Mandlawi's children were also outside playing: ts 59.
Ms Feili gave evidence that at some point during the course of the afternoon, she asked Mr Ibrahim and the children to come inside: ts 59.
She did not see the accident but described that she (ts 59):
… heard a loud voice, a very long voice. It's very strong, it's (indistinct) voice and as if the house is falling. I went to see what happen and my husband and his friend was outside and the children were playing outside. All I was thinking about is that the children or something happened to them, yeah. This all I remember.
Ms Feili later stated that at the time of the accident she did not know whether her children were inside or outside the house: ts 59 and ts 63. She also said that she does not know what happened to the milk crates or containers that Mr Ibrahim and Mr Mandlawi were sitting on after the accident: ts 63.

She gave evidence that when she first saw Mr Ibrahim following the accident, Mr Ibrahim was 'shocked'. She described Mr Ibrahim in the days after the accident as being not 'in his moods'. She said that Mr Ibrahim's moods had not improved since the accident: ts 62.
She said that Mr Ibrahim was (ts 62):
… [a]fraid about the children. Scared. We are dreaming about the accident and what happen.
…
At the beginning it was always. The first weeks, yeah, it was regular. Until now he's scared about the children. He always go outside with them now.
… I can see him. His face is yellow.
I consider that Ms Feili was an honest and reliable witness doing her best to recall the events that transpired, notwithstanding the difficulty she faced by giving evidence through and with the assistance of an interpreter. I accept her evidence.

The evidence of Zahra Ibrahim

Zahra Ibrahim is the daughter of Mr Ibrahim and Ms Feili.
Ms Ibrahim gave evidence that in the afternoon of 19 August 2018 she was in the kitchen of the property, preparing food with Ms Feili, and heard a loud noise from out of the front of the house: ts 66.
She said that she did not know whether her brothers and sisters and Mr Mandlawi's children were inside or outside the house when the 'accident had happened' and 'wasn't sure at the time if they were still outside or inside their rooms': ts 67.
She was, however, able to confirm that Mr Ibrahim and Mr Mandlawi were outside (ts 67 - ts 68), saying '[s]o my dad and Kamal … were sitting - we've got just like - we don't really have a sitting area but in the front of the house, like just near the door, he usually gets either like chairs or crates and they usually just sit there'. When asked whether she saw them sitting there on the afternoon of 19 August 2018, she said no, but that when the accident happened and they 'all rushed outside' through the front door, she saw one of the crates that was there: ts 68 and ts 71.
Ms Ibrahim maintained in cross-examination her firm view that Mr Ibrahim was not inside the house at the time of the accident, saying 'I didn't see him but, obviously, where else would he be? Like, that's where they usually sit'. When it was put to her, she denied that Mr Ibrahim could have been inside and that she did not know: ts 70 ‑ ts 71.
After the accident, and after she left the house through the front door, Ms Ibrahim said she moved a crate to the driveway: ts 68 and ts 71. She went into the front yard and saw the oil or fluid from the car 'on the floor': ts 69. She said that her father was 'in, like, shock' and that over the course of the following days Mr Ibrahim remained in that state and was '… just, like, trying to remember what had happened and he was trying to comprehend it': ts 70.
I consider Ms Ibrahim to be a truthful witness, who also was doing her best to recall events of some years ago. I accept her evidence in its entirety.

The evidence of Kamal Mandlawi

Mr Mandlawi gave evidence by video link from New South Wales. He is a friend of Mr Ibrahim and has known him since 1997: ts 96 - ts 97.
He told the court that on 19 August 2018 he and his family went to the property and were present at the time of the accident: ts 97.
He recalls that the 'children' (that is, both his and Mr Ibrahim's sons) wanted to play 'outside' the property and that he and Mr Ibrahim had told the children to play inside but 'they don't accept'. Mr Mandlawi said he told them not to go 'far away': ts 97.
He gave evidence that he and Mr Ibrahim then sat in a 'hall' or a 'doorway'. He elaborated on what he meant by this in the following exchange (ts 98):
… Yeah, the - at the front of the inside door, there is a - a - like a small area, like around two metre area or one metre, something like that. Well, this what we usually sit there, watch the kids or hear them, this kind of stuff. Yeah.
And that hall doorway, was that inside or outside the house?---No, not inside the house. You know the door, the - the actual door for the house, the small door with the timber, you know, the - you know what I mean? Like the door with - in the front of the door house.
And - and can you describe what was around this - can you describe what you could see around this - - -?---There's a - there's a - there - there's a - there's a fence with a - with a plant on it and there's a shoe rack there, what we sit there, near the shoe rack. And - and the plant with everything, like, it's very hard to see outside. But we hear very well. Yeah, it's very small area, like, it's about I think two metre, two metre with one - a metre wide. Yeah, I think so.
Mr Mandlawi said that on that afternoon, he and Mr Ibrahim were sitting on milk racks: ts 98. It is apparent from his evidence, and I accept, that he is describing a milk box or milk crate.
He said that the accident happened around 5 or 10 minutes after they sat down: ts 102.
Mr Mandlawi said that he did not see Mr Purdy's vehicle prior to or at the time of the accident, but he did describe a 'big bang' which terrified and scared him: ts 99.
Mr Mandlawi said that at the time of the accident he was facing towards Mr Ibrahim. The fence was to Mr Mandlawi's right, Mr Ibrahim was seated in front of him and the front door of the house was behind him: ts 99.
Mr Mandlawi described his actions at the time of the accident in this way (ts 99):
I - I jumped up from my side. I jumped for me and he's - he's - he's jumped towards me, because the - the brick fallen - fallen on him, on his side. And after that, when everything settle, I just jumped. This is what I remember. I jumped. I - I don't know how - I mean, I can't remember how I jumped the car to see my kids. I was worried about my kids.
He went on to describe his observations of Mr Ibrahim after he (Mr Mandlawi) had 'jumped' as follows (ts 100):
… I saw him - when I saw him, I saw him - he was sitting - like, he ‑ I don't know, he comes - he comes - was behind me near the car, was the - was the accident there, and he said to me, 'Check' - I was ‑ I was there standing - I was - I'll be honest with you, I was stronger than him. He was shaking, sitting down - for his kids. I was worried about my kids but not - I was stronger. He said to me, 'Check what the red liquid' - I didn't know what that mean. 'I - I want to lay down on the floor,' and he was behind me, shaking, sitting down. He left everything to check - I check for him, because he couldn't. He was - he was in blood.
In cross-examination it was put to him that when he got to the front of his car, he could see that there were no children there. He replied (ts 103):
No, I didn't see the children. I see - I see the liquid was blood. It was a red liquid and I - I lie down to see is maybe one of the kids under the car.
He maintained this denial when he was pressed further as to whether he knew that none of the children were under the car: ts 103.
It was suggested to Mr Mandlawi during cross-examination that he did not actually remember where he was sitting with Mr Ibrahim on the day of the accident, which he refuted. He also denied that he and Mr Ibrahim were inside the house at the time of the accident: ts 102 ‑ ts 103.
I accept Mr Mandlawi's evidence. It is in substance consistent with the evidence of Mr Ibrahim, Ms Feili and Ms Ibrahim and any slight inconsistencies can be explained by the passage of time and the fact that English is not Mr Mandlawi's first language.

The evidence of Dr Nisreen Al-Salihee

Dr Al-Salihee is a general practitioner and has been Mr Ibrahim's doctor since around 2009. Following the accident, Mr Ibrahim first attended on her at the East Morley Medical Centre on 24 August 2018: ts 73.
Dr Al-Salihee's notes record that the accident had occurred '5 days ago', when Mr Ibrahim 'with his friend and his kids altogether were standing on the same place that the accident happened just 10 mints (sic) before the accident': exhibit 11, page 33. Dr Al-Salihee also records that (exhibit 11, page 33):
part of the wall fell on his left side (upper and lower limb)
now he has left elbow pain and left leg pain +
he has bad mood very anxious since the accident
poor sleep
night mares (sic)
recalls of event happened every time causing panic attacks, palpitation, SOB, tightness of chest tingling
She clarified in her evidence that SOB means 'shortness of breath': ts 75.
Dr Al-Salihee says that in the course of Mr Ibrahim's attendances on her, he reported anxiety, an inability to sleep and nightmares. Dr Al‑Salihee says that he continues to experience 'recalls' of the events of the accident and was 'very panicky' about his children because he believed that they were playing outside the house and that they had been struck by Mr Purdy's vehicle: ts 75. She referred Mr Ibrahim to Ms Harvey for psychological counselling: exhibit 9.
Dr Al-Salihee did not observe any bruising or swelling to Mr Ibrahim's left elbow at the time of his initial presentation but identified painful movement and tenderness to his left elbow: ts 89; exhibit 11, page 33.
Dr Al-Salihee's evidence is that she understands that Mr Ibrahim's complaints of 'bad mood, anxiety, poor sleep, nightmares, recall of the event that happened' were all due to Mr Ibrahim's belief that his children were outside at the front of the house when the accident occurred: ts 89.
Dr Al-Salihee saw Mr Ibrahim on four further occasions before he began attending Dr Ali, also at the East Morley Medical Centre: exhibit 10. During the course of those further four consultations, Dr Al-Salihee noted that Mr Ibrahim was still suffering intermittent left elbow pain and was unable to lift heavy objects or drive a manual transmission car. He was continuing to present with symptoms such as nightmares and interrupted sleep. She prescribed medication to help Mr Ibrahim sleep and for his depression, anxiety and to stabilise his mood: ts 80 - ts 82. She said that as long as Mr Ibrahim was continuing to complain of pain and psychological symptoms, she would continue to manage his medication accordingly: ts 86 - ts 87.
Dr Al-Salihee started to see Mr Ibrahim again recently, 'a few months back', in 2021 for the purpose of an insurance claim that he was making: ts 79 - ts 80.

The evidence of Dr Abdulsattar Ali

Dr Ali was Mr Ibrahim's doctor after Dr Al-Salihee and first saw Mr Ibrahim on 17 December 2018: ts 133.
Dr Ali provided two reports, the first dated 1 December 2019 (exhibit 23) and the second dated 24 August 2020 (exhibit 24). In his first report, Dr Ali sets out Mr Ibrahim's patient history in the following terms (exhibit 23, page 1):
[Mr Ibrahim] states that he was sitting in his house, with a friend over. There were seven kids playing in the front of the house. It is alleged that a car came at relatively high velocity, lost control and ran into the house. They hit the corner of the building. This resulted in bricks being dislodged, which resulted in Mr Ibrahim being hit on the lateral aspect of the left elbow. There were no obvious breaks at the time. The next day he noticed that there was some discomfort in the elbow. Over the ensuing weeks the pain actually got worse.
He complained left elbow pain left leg pain a,d [sic] anxiety attack resulting from the crush of the car into his house.
It has improved but still gives him a lot of pain. He has difficulty with strenuous use of the left arm. He has full normal range of motion of the elbow, and he has tenderness over left elbow.
Dr Ali prescribed Mr Ibrahim ibuprofen and antidepressant medication to treat his injuries: ts 133. He said that Mr Ibrahim's prognosis for physical recovery is good, but was unable to comment on his mental health prognosis.
In his second report, Dr Ali says that Mr Ibrahim's left elbow pain has improved. Again, he offers no opinion as to Mr Ibrahim's mental health: exhibit 24.

The evidence of Mr Homan Zandi

Mr Zandi is an orthopaedic surgeon specialising in the treatment of shoulders, elbows and hands. He first saw Mr Ibrahim on 21 January 2019 upon a referral by Dr Al-Salihee: ts 106. He wrote a report to Dr Al-Salihee on the same day: exhibit 13.
At the time, Mr Ibrahim complained of pain and discomfort in his left elbow on the outside of his elbow: ts 107.
Mr Zandi referred Mr Ibrahim for an MRI which was undertaken on 22 January 2019 and showed tendonitis in the muscle between his left elbow and left wrist. He recommended that Mr Ibrahim undergo hand therapy and a steroid injection: ts 108 - ts 111.
Mr Zandi sent another report to Dr Al-Salihee dated 24 January 2019, advising her of the results of the MRI: exhibit 14. In the report he expressed the view that the accident may have aggravated 'some old distant injury to the elbow many years back. We are talking 20 ‑ 30 years plus': exhibit 14, page 1.
In his oral evidence, Mr Zandi said that Mr Ibrahim was suffering from 'tennis elbow', a condition which prevents a patient from using an arm in any gripping action. He accepted that tennis elbow is usually a repetitive strain type injury but confirmed that it could be caused by trauma: ts 117 and ts 119.
Mr Zandi assessed Mr Ibrahim as suffering a permanent residual disability of approximately 5% to 7% as a result of the ongoing limitation of activities related to his left upper limb: exhibit 15, page 7.

The evidence of Ms Yvonne Harvey

Ms Harvey is a clinical psychologist. Mr Ibrahim was referred to her by Dr Al-Salihee on 5 November 2018: exhibit 9. Ms Harvey attended on Mr Ibrahim some 17 times after the accident for treatment of post‑traumatic stress disorder and shock: ts 121 and exhibits 19 and 20.
Ms Harvey described Mr Ibrahim as suffering high levels of distress and anxiety since the accident, occasional flashbacks, and anxiety due to Mr Ibrahim and his children being very close to where the car landed. She also records Mr Ibrahim as experiencing nightmares, ongoing worrying thoughts for his and his children's safety and a fear of going out or being together with his children in one place: exhibits 19 and 20.
Ms Harvey says that Mr Ibrahim's presentation met all of the DSM‑IV criteria for post-traumatic stress disorder. She also considers that Mr Ibrahim has developed a panic disorder and would panic quite often when he was at home. She said that she provided solution‑focused therapies and cognitive behavioural therapies to manage his triggers and to reduce his panic and anxiety: ts 122.
Ms Harvey says that the fact that Mr Ibrahim did not see the accident does not affect her diagnosis of post-traumatic stress disorder. She says that Mr Ibrahim heard the accident and thought his children were present and that was sufficient to ground his psychiatric condition: ts 124.

The evidence of Dr Frederick Ng

Dr Ng is a consultant psychiatrist. He conducted an independent medico-legal psychiatric assessment of Mr Ibrahim and his report is dated 21 April 2021: exhibit 33.
Dr Ng saw Mr Ibrahim on 21 April 2021. His evidence is that Mr Ibrahim told him that when the accident occurred, he thought the children were out at the front of the house. Because he could not see the children after the accident, he deduced that the children were under the car and he 'freaked out', believing that they were injured. Dr Ng says that Mr Ibrahim told him that he did not know that at the time of the accident that the children had already been called inside through another door: ts 152 and ts 157 and exhibit 33, page 6.
He does not know what Mr Ibrahim actually saw, but he says that this does not make any difference to his diagnosis. He says that the perception of what happened as an alternative to actually seeing what happened can be just as traumatic, especially if what happened was significant and dangerous: ts 152.
It is Dr Ng's opinion that Mr Ibrahim was suffering from post‑traumatic stress disorder of a moderate to moderately severe extent, but which has improved. He says that the condition was partially treated, nevertheless persistent and problematic, and was less than moderately severe: ts 153, ts 157 and exhibit 33, page 10.
Dr Ng's evidence is that the significance of Mr Ibrahim thinking that his children were outside at the time of the accident was that (ts 157):
… given that an accident occurred in close proximity to the house and involved the house, it involved a car that was parked in front of the house, that - the significance of that is danger, trauma, death, injury, children. So those are the issues.

The evidence of Mr Michael Halliday

Mr Halliday is an orthopaedic surgeon who examined Mr Ibrahim on 25 June 2020 and produced a report dated 10 August 2020: exhibit 36.
Mr Halliday notes in his report that Mr Ibrahim has suffered ongoing left elbow pain and restrictions since the accident. He diagnosed Mr Ibrahim as suffering from left tennis elbow, and it was his opinion that this condition was caused directly by the accident: exhibit 36, page 5.
He said that conservative measures such as physiotherapy, anti‑inflammatory medication and the like could be used to treat this condition, although they might not necessarily provide much relief: ts 172.
He considered it reasonable to assume that if a patient such as Mr Ibrahim suffered symptoms of tennis elbow for more than two years then that patient's condition was unlikely to improve significantly: ts 172.
Mr Halliday considers that Mr Ibrahim has suffered a 5% permanent disability to his left elbow as a result of the accident and that he will not make a complete recovery: ts 173 and exhibit 36, page 7.

The evidence of Mr Chris Hardie

Mr Hardie is a physiotherapist. His reports dated 12 August 2019 and 28 October 2019 respectively were tendered by consent and comprise exhibit 35. He did not give any oral evidence.
Mr Hardie has been treating Mr Ibrahim since 26 July 2018. He considers that Mr Ibrahim's lifting capacity is restricted by pain to less than 3 kg and that his pain is aggravated when he lifts 5 kg or more with his left arm or twists a door handle: exhibit 35.

The evidence of Gemma Amy Edwards-Smith

Dr Edwards-Smith is a consultant psychiatrist. She provided a report dated 1 May 2020 (exhibit 37). At the trial, she corrected the date of her report and said that it was in fact prepared on 8 June 2020: ts 178 - ts 179. Later in her evidence she corrected the date of her report once more, finally confirming that it should bear the date 18 June 2020: ts 182. She then clarified all of the dates in her report: ts 183.
Dr Edwards-Smith saw Mr Ibrahim through Telehealth on 30 April 2020 and saw him 'face to face' on 8 June 2020: ts 183.
She confirmed that interviews with Mr Ibrahim were undertaken for the purpose of performing a medico-legal assessment and were not intended for 'conventional psychiatric assessment and treatment': exhibit 37, page 2.
At the first interview, Mr Ibrahim was accompanied by a friend and at the second interview, along with his friend, he also had an interpreter: ts 178.
Dr Edwards-Smith says in her report that Mr Ibrahim (exhibit 37):
… currently reports modest symptoms which are not pervasive but particularly situational.
Dr Edwards-Smith explains the term 'situational symptoms' as being her way of describing symptoms of anxiety that are intermittent in certain situations rather than a more pervasive, generalised anxiety: ts 180.
She concluded that, while Mr Ibrahim believed that he could have been seriously injured in the accident, his main concern was for his children: ts 181.
She diagnosed Mr Ibrahim as suffering from post-traumatic stress disorder: ts 181.

The alleged breach of the rule in Browne v Dunn

In closing submissions, counsel for Mr Ibrahim raised the issue that counsel for Mr Purdy had opened the defence case on the basis that Mr Ibrahim's account of events was 'made up after the event': ts 164.
Counsel for Mr Ibrahim submitted that this is 'tantamount to an argument that the plaintiff is engaging in and has engaged in fraud': plaintiff's written closing submissions dated 25 November 2021, par 154. Counsel says that if such an argument was being raised then it ought to have been pleaded and Mr Ibrahim given an opportunity to properly address it, prior to closing his case. Counsel says that to allow Mr Purdy to now make these arguments or for the court to find against Mr Ibrahim on the basis of these arguments is not only detrimental to Mr Ibrahim, but patently unfair to him and is a breach of the rule in Browne v Dunn (1894) 6 R 67 (HL).

Counsel submits that it is not open to the court to accept propositions of fact that have not been put to Mr Ibrahim: plaintiff's written closing submissions dated 25 November 2021, par 158.
Counsel for Mr Purdy concedes that 'nobody's assisted by the pleadings in this matter' (ts 185) but considers that Mr Purdy's position is and has always been that there was never any real argument between the parties about what physically happened to the car and the house. Rather, counsel says, the real question remains whether Mr Ibrahim has satisfied the court on the balance of probabilities that Mr Ibrahim was sitting on the front porch at the time of the accident, was struck by a falling brick and had reason at all to think that his children might have been injured: ts 186. Counsel submits that it is not for the defence to positively disprove any of those facts, and it is for the plaintiff to prove them: ts 186.
Counsel for Mr Purdy accepts (ts 185), and I agree, that fraud was not pleaded by the defence. However, I also accept that the trial was not conducted on that basis by either party. A critical aspect of each party's case is whether the court can be satisfied, on the balance of probabilities, that Mr Ibrahim suffered compensable injury and, if so, that it was caused by the accident. I do not understand either party to have argued the case on any other basis and I do not consider that any issue of unfairness arises in that regard.

Statutory scheme

Motor Vehicle (Third Party Insurance) Act

Pursuant to s 3A and s 3B of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (MV Act), s 3C applies to the awarding of damages in respect of bodily injury to a person directly caused by, or by the driving of, a motor vehicle and a court is not to award damages to a person contrary to, relevantly, that section.
Section 3C of the MV Act provides as follows:
(1)In this section -
Amount A means -
(a)for the financial year ending on 30 June 1994, $200,000; and
(b)for any subsequent financial year, the amount recalculated as Amount A under subsections (8) and (9);
Amount B means -
(a)for the financial year ending on 30 June 1994, $10,000; and
(b)for any subsequent financial year, the amount recalculated as Amount B under subsections (8) and (10);
Amount C means -
(a)for the financial year ending on 30 June 1994, $30,000; and
(b)for any subsequent financial year, the amount recalculated as Amount C under subsections (8) and (10);
non‑pecuniary loss means -
(a)pain and suffering;
(b)loss of amenities of life;
(c)loss of enjoyment of life;
(d)curtailment of expectation of life; and
(e)bodily or mental harm.
(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded.
(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case.
(4)If the amount of non‑pecuniary loss is assessed to be Amount B or less, no damages are to be awarded for non‑pecuniary loss.
(5)If the amount of non‑pecuniary loss is assessed to be more than Amount B but not more than Amount C, the amount of damages to be awarded for non‑pecuniary loss is the excess of the amount so assessed over Amount B.
(6)If the amount of non‑pecuniary loss is assessed to be more than Amount C but less than the sum of Amounts B and C, the amount of damages to be awarded for non‑pecuniary loss is the excess of the amount so assessed over -
(7)No entitlement to damages is created by subsection (2), (3), (5) or (6) and those subsections are subject to any law (other than Division 2 of Part IV of the Workers' Compensation and Injury Management Act 1981) that prevents or limits the awarding of damages.
(8)By operation of this subsection and subsection (9) or (10) each of Amounts A, B and C is recalculated for each financial year with effect from 1 July (the recalculation date), commencing on 1 July 1994, by varying the respective amounts for the preceding financial year -
(a)by the percentage by which the weighted average minimum award rate for adult males under Western Australian State Awards published by the Australian Statistician varies between 1 April in the calendar year preceding the recalculation date and 31 March in the calendar year of the recalculation date; or
(b)if the relevant information is not so published, in accordance with the regulations.
(9)If an amount recalculated under subsection (8) as Amount A is not a multiple of $1,000 it is to be rounded off to the nearest multiple of $1,000 (with an amount that is $500 more than a multiple of $1,000 being rounded off to the next highest multiple of $1,000).
(10)If an amount recalculated under subsection (8) as Amount B or C is not a multiple of $500 it is to be rounded off to the nearest multiple of $500 (with an amount that is $250 more than a multiple of $500 being rounded off to the next highest multiple of $500).
(11)On or before 1 July in each year the Minister is to publish a notice in the Gazette setting out Amounts A, B and C as they will have effect on and from that 1 July.
(12)Failure to publish, or late publication of, a notice under subsection (11) does not affect the operation of subsection (8), (9) or (10).
(13)Issues as to whether damages for non‑pecuniary loss may be awarded and as to the amount of those damages that may be awarded are to be determined by reference to Amounts A, B and C as in effect on the date on which the determination is made.

Civil Liability Act

Section 5C of the Civil Liability Act 2002 (WA) (CL Act) provides as follows:
(1)A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -
(a)that 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).
(2)In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -
(a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault -
(a)subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b)evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
Section 5D of the CL Act provides as follows:
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Section 5Q of the CL Act provides as follows:
In this Part -
consequential mental harm means mental harm that is a consequence of a personal injury of any kind;
mental harm means impairment of a person's mental condition;
pure mental harm means mental harm other than consequential mental harm.
Section 5S of the CL Act provides as follows:
(1)A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2)For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following -
(a)whether or not the mental harm was suffered as the result of a sudden shock;
(b)whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;
(c)the nature of the relationship between the plaintiff and any person killed, injured or put in peril;
(d)whether or not there was a pre‑existing relationship between the plaintiff and the defendant.
(3)For the purpose of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.
(4)This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

Discussion and disposition

Under s 5D of the CL Act, the plaintiff bears the onus of proving that the negligence of the defendant was the cause of the plaintiff's loss.
The test to be applied in determining that issue is the 'but for' test of factual causation, that the fault was a necessary condition of the occurrence of the harm: s 5C(1) of the CL Act.
Mr Purdy has conceded that he drove his motor vehicle negligently, that his motor vehicle hit a vehicle parked in the driveway of the property and that the parked vehicle struck a brick pillar which formed part of a patio at the front of the property. Mr Purdy also accepts that this impact caused part of the brick pillar to collapse, and bricks to fall to the ground. I make those findings.
I also make the following findings, based on the evidence of Mr Ibrahim, Ms Feili, Ms Ibrahim and Mr Mandlawi which I have accepted:
(a)Mr Ibrahim was sitting on a milk crate on the front verandah of the property when the accident occured; and
(b)he was struck on his left elbow by a falling brick when Mr Mandlawi's vehicle struck the property.
As a result of the brick striking Mr Ibrahim's left elbow, I find that Mr Ibrahim suffered injury to his left elbow, which was subsequently diagnosed as tendonitis or tennis elbow.
Mr Zandi's evidence supports to some extent Mr Purdy's assertion that Mr Ibrahim was suffering from an asymptomatic left elbow injury immediately prior to the accident. However, I cannot and do not find that the brick striking Mr Ibrahim's left elbow merely aggravated a pre‑existing condition. Mr Zandi's evidence, which I accept, is that Mr Ibrahim had suffered a childhood injury about which he was probably unaware. On balance, I do not consider that injury to constitute a 'pre-existing condition'.
Based on the evidence of Dr Al-Salihee, Dr Ali, Mr Zandi and Mr Halliday, which I accept, I consider that Mr Ibrahim's assessed physical injury was causally related to the accident.
I turn now to Mr Ibrahim's claim insofar as it relates to damages for 'mental harm'.
I do not consider that it is necessary for me to make any finding as to where the children were located at the time of the accident. I do find, however, that Mr Ibrahim believed that his children were at the front of the property, that the red liquid which he could see on the ground underneath Mr Mandlawi's vehicle was blood and that his children had been injured or killed.
Part 1B of the CL Act, in which s 5R and s 5S are found, has the heading 'Mental harm'. Under s 5R(1) of the CL Act, subject to certain exceptions (none of which apply in this case), pt 1B applies to any claim for personal injury damages for mental harm.
Mr Ibrahim says, and I agree, that his mental harm falls within the definition in s 5Q of the CL Act of 'pure mental harm'.
Part 1B of the CL Act imposes restrictions on the circumstances in which a person owes a duty of care to another in relation to mental harm.
The court in Zaghloul v Bayly [2021] WASCA 125 discussed s 5S of the CL Act at [84] - [97] and how it operates to restrict the circumstances in which a duty of care not to cause mental harm exists. Relevantly, the court came to the following conclusions:
1.Section 5S defines or controls what would otherwise be a duty of care not to cause mental harm arising at common law.
2.Section 5S does not positively identify when the duty arises. Section 5S(1) is cast negatively; it provides that a duty is not to be found unless a condition is satisfied.
3.The relevant statutory condition for establishment of a duty of care is that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
4.The determination of whether the defendant ought to have foreseen such injury to a person of normal fortitude must be made with regard to 'the circumstances of the case', including, in relation to 'pure mental harm', the four kinds of circumstances prescribed in s 5S(2). However, s 5S does not prescribe any particular consequence as following from the presence or absence of any or all of those circumstances. While these circumstances bear upon whether a defendant ought to have foreseen that a person of normal fortitude might have suffered a recognised psychiatric illness if reasonable care was not taken, the occurrence of one or more of the prescribed circumstances is neither a necessary nor sufficient condition for a finding that a defendant owed a duty to take reasonable care not to cause a plaintiff pure mental harm.
5.Section 5S assumes that foreseeability is the central determinant of whether a duty of care arises, although foreseeability alone may not be enough.
6.The concept of 'shocking event' and the existence and nature of any connection between plaintiff and victim and between plaintiff and defendant are considerations relevant to forseeability, although not necessary to find a duty of care.
7.Section 5S provides that a duty of care is not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric injury. The focus of s 5S is 'mental harm' (that is, impairment of a person's mental condition) and a 'recognised psychiatric illness', not mental or nervous shock.
8.The question of foreseeability must be judged before the relevant incident happened.
9.The term 'mental harm' as used in pt 1B of the CL Act is not restricted to something in the nature of a sudden and disturbing mental impact; it may include adverse mental conditions which develop over time.
10.Because it is necessary to assess whether a person of normal fortitude would suffer a recognised psychiatric illness 'in the circumstances of the case', it is necessary to specify the critical event with a degree of precision. There must be identification of the nature of the risk which might give rise to mental harm.
11.A person of 'normal fortitude' is one who has a normal vulnerability or susceptibility to impairment of his or her mental condition. It is to be understood by reference to the community's general knowledge of the effect of stressors on ordinary persons.
12.It is not a pre‑condition to the existence of a duty of care not to cause mental harm that the plaintiff be a person of normal fortitude. Section 5S(1) only requires that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. The test does not require the plaintiff to be a person of normal fortitude in order to be owed a duty of care.
In my view, it ought to have been foreseeable to Mr Purdy in the circumstances of this case that a person of normal fortitude might suffer a recognised psychiatric illness as the result of a sudden shock if Mr Purdy drove his vehicle in the manner alleged.
Based on the evidence of Ms Harvey, Dr Ng and Dr Edwards‑Smith, which I accept, I find that since the accident Mr Ibrahim has experienced recurrent nightmares, interrupted sleep, anxiety and fear for the safety, health and welfare of his family. I find that the medical evidence supports a finding that Mr Ibrahim has and continues to suffer from a recognised psychiatric illness, namely post‑traumatic stress disorder.
In my opinion, Mr Ibrahim's post-traumatic stress disorder was directly caused by the accident and I so find.
Accordingly, I find that Mr Purdy is liable to pay Mr Ibrahim damages for the injury, loss and damage suffered by Mr Ibrahim.

Damages

The parties have agreed that Mr Ibrahim's claim for damages will comprise:
(a)past medical expenses/special damages;
(b)future medical expenses; and
(c)non-pecuniary loss (general damages).

Past medical expenses/special damages

Mr Ibrahim's claim for special damages is in the sum of $7,049.20.
Mr Purdy considers that if the court finds him liable to pay special damages to Mr Ibrahim, special damages ought to be awarded in the sum of $6,903.20.
The difference between the parties as to the amount of special damages is therefore $146. This sum relates to an attendance by Mr Ibrahim on Dr Ali on 17 December 2018, being Mr Ibrahim's initial attendance following the accident. Although Medicare Australia has attended to payment of the relevant invoice, Mr Ibrahim will be required to repay to Medicare Australia the sum of $146 from the judgment sum pursuant to s 8 of the Health and Other Services (Compensation) Act 1995 (Cth).
Accordingly, I consider that Mr Ibrahim should be awarded special damages of $7,049.20.

Future medical expenses

Each of the medical practitioners who gave evidence were of the view that Mr Ibrahim will require ongoing medical treatment because of the accident.
Dr Al-Salihee considers that Mr Ibrahim will require ongoing anti‑inflammatory drugs and antidepressants and recommends that he should continue with his psychological counselling and therapy: ts 77, ts 86 - ts 87.
Mr Zandi considers that Mr Ibrahim will require ongoing physiotherapy and steroid injections at an estimated cost of approximately $2,000 - $3,000: exhibit 15, page 5.
Mr Halliday agreed that Mr Ibrahim will require ongoing physiotherapy and medication and suggested that Mr Ibrahim will require such treatment for 'three, four, five years': ts 172.
It was Mr Halliday's evidence that Mr Ibrahim will not make a complete recovery from his condition and assessed him as suffering a 5% permanent disability: ts 173.
Ms Harvey (ts 124) and Dr Ng (ts 153) agreed that Mr Ibrahim will require ongoing therapy for the treatment of his post-traumatic stress disorder and anxiety and Dr Ng considers that Mr Ibrahim would benefit from a further 12 sessions of psychotherapy on a fortnightly to monthly basis, the cost of which he considered to be in the order of $355 per session: exhibit 33, page 10.
Mr Ibrahim, through counsel, estimates his future medical expenses to be $14,196.68 and this figure is not disputed by Mr Purdy.
Accordingly, my award for future medical expenses is $14,196.68.

Non-pecuniary loss (general damages)

Section 3C of the MV Act applies to damages for non-pecuniary loss (general damages) and restricts the amount a court can award for this head of damage. Under s 3C, 'non‑pecuniary loss' is defined to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. In general terms, the quantum of damages for non-pecuniary loss is currently 'capped' at a maximum of $438,000, which corresponds with what would be awarded in 'a most extreme case'. In cases other than 'a most extreme case', awards of damages for non-pecuniary losses are determined according to the severity of the non-pecuniary loss suffered, proportionate to 'a most extreme case' and the maximum award of damages allowable. Additionally, the threshold imposed in s 3C of the MV Act, currently $23,000, means that claimants suffering non‑economic losses assessed at or less than 5% of 'a most extreme case' are unable to recover any damages for non-economic loss.

The maximum amount may only be awarded in 'a most extreme case': s 3C(3) of the MV Act.
In Syme v Roos [2016] WADC 164 [204], Gething DCJ considered the relevant authorities and extracted the following guidance on the application of the regime in s 3C of the MV Act:
(a)the section requires the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages;
(b)the section fixes only the outside parameters of the assessment;
(c)the only criterion for the apportionment prescribed is the comparison of the severity of the non-economic loss, as disclosed by the evidence, suffered by the injured person in the case before the judge and that suffered in 'a most extreme case' - the judge must then assign the case as found somewhere along the resulting scale;
(d)all that the section requires is that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case';
(e)the expression 'a most extreme case' refers to a class of cases rather than a case at the apex of the graduation of injuries;
(f)a judge's assessment of whether a case is 'a most extreme case' involves questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment;
(g)the plaintiff's prognosis is a relevant consideration; and
(h)the judge's task is to find the right proportion between a most extreme case and the case being assessed.
I respectfully agree with that summary.
Within this framework, the amount of damages must be fair and reasonable compensation for the injuries sustained by and the disabilities caused to the plaintiff, having regard to current general ideas of fairness and moderation: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125; Houlahan v Pitchen [2009] WASCA 104 [107] (Houlahan); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (Winiarczyk). The amount must be proportionate to the situation of the particular plaintiff: Houlahan [107]; Winiarczyk [71].
I have considered the evidence of Mr Ibrahim and of the medical experts in the context of my assessment of what is fair and reasonable compensation for the injuries sustained by and the disabilities caused to Mr Ibrahim and what is the right proportion between a most extreme case and this case. In my view, Mr Ibrahim's non-pecuniary loss is appropriately assessed at 10% of a most extreme case.
An assessment of 10% of a worst case equates to an amount of $20,800, calculated as follows:
10% x $438,000 = $43,800 less $23,000
I am of the opinion that, within the statutory framework of the MV Act, an amount of $20,800 is fair and reasonable compensation for the injuries received by Mr Ibrahim and the disabilities caused, having regard to current general ideas of fairness and moderation.

Conclusion

For these reasons, I assess the damages to which Mr Ibrahim is entitled at $42,045.88, as follows:

Past medical expenses/special damages

$7,049.20

Future medical expenses

$14,196.68

Non-pecuniary loss

$20,800.00

Total

$42,045.88

I will hear from counsel as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Sharp
20 JUNE 2022

Past medical expenses/special damages	$7,049.20
Future medical expenses	$14,196.68
Non-pecuniary loss	$20,800.00
Total	$42,045.88