Mills v Richards - [2002] WADC 57

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MILLS -v- RICHARDS [2002] WADC 57

CORAM: MACKNAY DCJ

HEARD: 5-9, 12-14 NOVEMBER 2001

DELIVERED : 26 MARCH 2002

FILE NO/S: CIV 3939 of 1999

BETWEEN: HEIDI MILLS
Plaintiff
AND
DAVID JOHN RICHARDS
Defendant

Catchwords:

Negligence - Road accident cases - Duty of care - Plaintiff's vehicle struck from behind by defendant's vehicle as it moved into traffic lane - Whether failure to keep proper look out - Extent of contributory negligence of plaintiff - Turns on own facts

Damage - Assessment - Plaintiff 22 year old female medical secretary at time of accident - Fracture of thoracic spine resulting in paraplegia - Total award of damages $2,085,699.75

Legislation:

Nil

Result:

Plaintiff entitled to judgment for 45 per cent of assessed damage

Representation:

Counsel:

Plaintiff: Mr R I Viner QC & Mr D M Bruns
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Separovic & Associates
Defendant: Greenland Brooksby

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

Black v Motor Vehicle Insurance Trust (1986) WAR 32
Commissioner of Taxation v Scully (2000) 201 CLR 148
Jongen v CSR Ltd (1992) A Tort Rep 81-192
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Nolan v Hamersley Iron Pty Ltd (2000) 23 WAR 287
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492

Case(s) also cited:

Barnard v Towill (1998) 72 SASR 27
Bernd Matzat v The Gove Flying Club Inc & Ors [1996] NTSC 92
Bowen v Tutte (1990) A Tort Rep 81-043
Byass v Nicholson (1995) 14 SR (WA) 322
Dawkins v Robinson (1986) 3 MVR 77
Ferrett v Worsley (1993) 61 SASR 234
Froom v Butcher (1976) QB 286
Hussain v New Taplow Paper Mills Ltd [1988] AC 514
Lee v Burn (1998) 27 MVR 186
National Insurance Co of N.Z. Ltd v Espagne (1960-1961) 105 CLR 569
Patullo v Thomas, unreported; FCt SCt of WA; [1984] A Tort Rep 80-626
Pennington v Norris (1956) 96 CLR 10
Redding v Lee; Evans v Muller (1983) 57 ALJR 393
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
State of Tasmania v Wilson [2000] TASSC 152
Van Gervan v Fenton (1992) 175 CLR 327
Vertes v Matheson [2001] WADC 105

MACKNAY DCJ:

Introduction

The plaintiff is aged 26 years, having been born on 1 May 1975.
On 10 September 1997 the plaintiff was the driver of a Daihatsu Charade motor vehicle travelling south on the Kwinana Freeway which was struck at the rear by a Mitsubishi Magna sedan driven by the defendant as it moved into the righthand lane in which the defendant was travelling.
As a result of the collision the plaintiff lost control of the vehicle which crossed the median strip and northbound lanes and left the road, rolling over several times in the course of that.
The plaintiff, who was not wearing a fitted driver’s seatbelt, was thrown from the vehicle and sustained severe spinal injuries which resulted in paraplegia.
Negligence on the part of the defendant is alleged and denied and the defendant alleges the plaintiff’s loss was caused or contributed to by negligence on her part, including negligence resulting from her failure to wear the seatbelt.
The quantum of damage is in issue, although appropriate allowances for some heads of damage were agreed prior to or in the course of the trial.

Accident

The plaintiff was at the time of the accident living with Mark Lambert, whom she has since married.
Mark Lambert was and is a submariner in the Royal Australian Navy, and was then working at the Garden Island naval base.
On the morning of 10 September 1997 he had left for work whilst the plaintiff was out jogging, but then returned to turn off a grill.
The plaintiff had by then also returned, and farewelled Mark Lambert as he again left for work. As he moved off the plaintiff said she noticed Mark Lambert had left his keys in the front door.
The plaintiff then left in her vehicle, a Daihatsu Charade sedan, to catch up with her partner so as to return the keys. That was, she said, a matter of "seconds later".
Mark Lambert's route to work involved travel along the southern section of the Kwinana Freeway to its then terminus, and the plaintiff said she was about 80m behind him when she drove on to the freeway, travelling south. Mark Lambert was in the lefthand lane and her intention was, the plaintiff said, to drive alongside him in the righthand lane and attract his attention.
The traffic on the freeway at that time, about 7.00 am on a week morning, was, the plaintiff said, moderate to heavy, with vehicles in each of the two lanes for southbound traffic travelling at about 100 to 105kph.
The plaintiff said that she merged into traffic in the lefthand lane and then moved into the righthand lane.
In the righthand lane the plaintiff said she gradually accelerated, so that the distance from the vehicle in front was reduced from five to one and a half car lengths.
I interpolate to say that it is clear, and there is no dispute about it, that vehicle was that of the defendant, and where it is also clear, and there is no dispute, that a reference in any part of the evidence is in fact to the vehicle of either the plaintiff or the defendant I have simply described it as such.
On reaching the stated distance behind the defendant's car the plaintiff said she waited for about 10 seconds for him to move over, and at the end of that time flashed her lights on high beam.
On there being no reaction to that, and after a little while, the plaintiff said she indicated and moved into the lefthand lane.
Once back in the lefthand lane the plaintiff accelerated to about 110kph in order to pass the defendant's vehicle, she said, and duly arrived at a position "at least" one to two car lengths ahead of him.
The plaintiff said that she indicated and then checked that there was sufficient room to move back into the righthand lane by looking in her mirrors and looking over her right shoulder to check the position of the defendant's vehicle, and on observing that to be at least one and a half to two car lengths behind she moved into the righthand lane.
"I feel that I was all the way in" to the righthand lane, the plaintiff said in evidence, when she felt a large impact from behind, "like a bomb going off", and despite braking heavily and fighting to keep the vehicle straight, she lost all control of it.
The plaintiff's vehicle then went across the median strip and the northbound lanes, ending on an embankment on the west side of the freeway.
In the course of that the plaintiff's vehicle rolled over and the plaintiff, who had not put on the driver's seatbelt fitted to her vehicle, was thrown out and landed partly in a bush.
Other people then came over to attend to the plaintiff, and on the arrival of an ambulance she was taken to Fremantle Hospital.
Mr Bokulic is a lieutenant in the Royal Australian Navy, now the executive officer of a naval vessel stationed at Darwin but at the time of the accident the plans and intelligence officer at maritime headquarters at the Garden Island base.
In the course of driving to work Mr Bokulic said that he had observed the accident, and had quite a clear recollection of it as something he would "never forget".
Mr Bokulic said that he was in the lefthand lane, and initially ahead of the plaintiff's vehicle but behind that of the defendant, which was in the righthand lane.
He then observed, Mr Bokulic said, the plaintiff come up in the righthand lane and proceed past his vehicle until she was about two lengths behind the defendant's vehicle.
Mr Bokulic said the plaintiff indicated and then moved in a steady movement to the lefthand lane and drove in that lane past the defendant's vehicle, or at least to a position where from his perspective her vehicle appeared to be past, and far enough in front for the plaintiff to move back to the righthand lane.
The plaintiff then began to move back into the righthand lane, he said, but after that movement began the lefthand front of the defendant's vehicle came into collision with the righthand rear of the plaintiff's vehicle.
The plaintiff's movements had been steady and not erratic, Mr Bokulic said, including the movement back to the righthand lane in front of the defendant's vehicle, which had been a "steady manoeuvre".
From what he could see it did not appear to him that the defendant had changed course or speed, Mr Bokulic said.
The defendant had not braked at any time, even after the collision, and had simply kept going, Mr Bokulic said.
He could not recall whether or not the plaintiff had indicated her intention to change lanes, he said.
After the collision Mr Bokulic drove into the emergency lane and dialled 000, he said, but on being informed that a message as to the accident had already been conveyed, continued on his journey.
The plaintiff's speed was estimated by Mr Bokulic to be 110kph and no more than 115kph.
At the time of the accident Mark Lambert was not known to him, Mr Bokulic said.
Another witness to the accident was Mr Pritchard, a sales consultant.
He said he first observed the plaintiff's vehicle in his rear vision mirror as one travelling slightly faster than other traffic, and saw it cross lanes twice.
On each occasion the plaintiff had indicated the change, Mr Pritchard said, and whilst her vehicle seemed in a hurry it was not travelling in a manner that was excessive or dangerous.
Mr Pritchard was in the righthand lane, and said the plaintiff came up behind him in that lane then moved to the lefthand lane, passed him and moved back to the righthand lane in front of him, having first indicated.
The plaintiff's vehicle then found itself behind the defendant's vehicle and the plaintiff again indicated and moved back to the lefthand lane, he said.
Mr Pritchard said the plaintiff's vehicle appeared to pass the defendant's vehicle and then to merge back into a two car length gap in the righthand lane, that being done "without any sharp move", and not involving a fast movement, when it suddenly veered sharply and went out of control.
He had not been in a position to see whether the plaintiff had given indication of her move, Mr Pritchard said.
The plaintiff's speed was, he thought, about 115kph, or 5-10kph faster than his speed, and was the "sort of speed" he would use to overtake.
Prior to the collision the defendant's vehicle did not exhibit any brake light, or appear to change speed, Mr Pritchard said, and on and after it the defendant again did not brake but continued on for probably 500m before he came to a stop in the emergency lane.
Mr Pritchard also stopped in that lane, but about 20m past where the plaintiff lay, rang the emergency number and then ran over to the plaintiff.
After a woman, it would appear Mrs Phillips, who also gave evidence, came and assisted the plaintiff Mr Pritchard said he looked for the other driver to see why he was not assisting the plaintiff.
Mr Pritchard said he found the defendant standing about 20m away from the plaintiff and on being invited to see her the defendant had replied in the negative.
He agreed the defendant had said he was not sure what had happened and that the plaintiff had pulled out in front of him, and said the defendant also asked whether he had hit the plaintiff's vehicle, and had gone to check for damage on his vehicle.
A statement critical of the plaintiff obtained from Mr Pritchard by police at the scene, was taken after a two or three hour wait, he said, in circumstances where the police appeared impatient and had suggested a mechanism which he had simply agreed to and then signed the statement, without having any chance to elaborate and without in fact there being real agreement on his part.
Mr Pritchard inspected the plaintiff's vehicle after the accident and said there appeared to be paint from the defendant's vehicle right at the righthand rear side of it near the rear bumper.
The defendant, now self employed as a safety and training consultant but formerly a member of the Australian Army, later engaged in security in a middle-eastern country and then employed in safety and training, gave evidence. That evidence was initially to the effect that he had glanced in his rear vision mirror and had seen a car advancing rapidly behind him, but it had not occurred to him that vehicle would wish to overtake as he considered that the traffic conditions did not permit that.
The defendant said that he had overtaken one vehicle in the left hand lane and there was another alongside which he was just getting in front of when he first saw the plaintiff's vehicle.
The defendant said that he looked back to his front, when a white vehicle, the plaintiffs, crossed in front of him "at quite an angle", following which "he sort of braked" and the plaintiff's vehicle rotated clockwise and went across the median strip to the other side of the freeway, rolling and someone being thrown out.
After he had stopped 80/100 meters down the freeway and had "trotted" back to the scene, by which time there were many people in attendance, the defendant said, he was asked by a man there whether he had hit the plaintiff's vehicle and had said that he was not sure and went back and looked and there had been a small abrasion or rub mark on the left hand front corner of his bumper.
The accident had "happened too quickly" for there to be any time for him to respond, the defendant said.
In cross examination the defendant said that he was "not even sure" if the plaintiff's vehicle had been under control when it first came in front of his vehicle, and it might have already been rotating then.
He said that when he looked over the front left of his bonnet he was already looking at the driver.
The defendant later agreed however that he had told the police that the plaintiff's vehicle had clipped the left hand front of his vehicle and it was that which had caused the plaintiff to slide sideways.
The defendant also said in cross examination that he had looked not once but twice in his rear vision mirror, and didn't believe that the plaintiff's vehicle was there the second time.
He had not however given its whereabouts any further consideration, the defendant said, as the next traffic signals, at the Russell Street intersection, were red, some vehicles in front of him were stopping and he was concerned about another vehicle, of which he was aware, a little ahead of him in the left hand lane.
The defendant said he had not looked into the left hand lane to see whether the plaintiff's vehicle was there.
It was not possible for the plaintiff to pass him in the left hand lane, and he did not see the plaintiff's vehicle draw alongside or past him in that lane, he said.
There was a vehicle about two car lengths in front of him in the right hand lane, the defendant said, but when asked whether that vehicle could have been further ahead, he said it might have been more or less and responded: "did my statement cover that?"
Mr Pow, formerly an unemployed carpenter now a resident of Queensland and a trainee minister of religion was called by the defendant, and said he was travelling in the left hand lane at about 95/100 kph, approximately six car lengths behind the defendant's vehicle, which was in the right hand lane, when the plaintiff went past him in that lane travelling at about 115 kph, "maybe" 120 kph.
The plaintiff's vehicle came up behind and to within a car length of the defendant's vehicle but did not remain there long, Mr Pow said, and moved back into the left hand lane, in what he described as being like a "rally manoeuvre" or out of a slip stream, and one that was fairly quick, although, he later agreed, he had earlier described it as being "a controlled movement". He said he did not see any indication of the move.
The plaintiff then "proceeded to overtake" the defendant's vehicle, Mr Pow said.
There was another vehicle in the left hand lane about a car length ahead of the defendant's vehicle, Mr Pow said, and the plaintiff looked over her right shoulder and "tried to squeeze" through the gap, which was closing as the right hand lane traffic was moving faster than that in the left hand lane.
Mr Pow said he did not believe the plaintiff's vehicle "cleared" the defendant's vehicle, although it was in front of it.
In the course of the plaintiff's movement back into the right hand lane, made without any indication that he could see, the right hand rear of her vehicle clipped the left hand front of that of the defendant, he said, that not being a big impact but one which caused the rear of the plaintiff's vehicle to "kick around" and the vehicle to go across the median strip and then roll over about 6 times.
Prior to the collision the defendant's vehicle had not appeared to either increase or decrease its speed or course, and it simply gave a "little wobble" on impact.
The traffic signals at the next intersection had not he thought been relevant to traffic behaviour, Mr Pow said, and he did not recall traffic slowing.

Plaintiff

The plaintiff was born and educated in South Australia, leaving school part way through year 12, still sitting her TEE, and obtaining a certificate of achievement, but apparently failing to achieve university entrance standard.
After completion of something in excess of half of a diploma in information technology the plaintiff obtained employment as manager of three podiatry practices and carried that out for about 18 months.
After some travel around other parts of Australia the plaintiff came to this State and met again Mark Lambert, whom she had known at school, and with whom she commenced living in about October 1995.
On arrival here the plaintiff first gained employment with Western Radiology as a medical secretary or receptionist and then, about a year prior to the accident, obtained similar work with another radiological practice, SKG Radiology, at the St John of God Hospital, Subiaco, and remained there until that event.
Prior to the accident she and Mark Lambert had discussed their future, the plaintiff said, including marriage and the prospect that they would have one child, when the plaintiff was in her "early thirties".
As to her own future the plaintiff said she had been thinking at that time about further study, by way of completion of her diploma in information technology or a radiography course, and shortly before the accident she and Mark Lambert had discussed that and thought that the plaintiff would begin part time study in an entry course for radiography and then move later on to full time study.
On qualifying as a radiographer it was thought the plaintiff would work full time until the birth of the child, and then return to part time and then later full time work, she said.
That the entry course would require one year of full time or two years of part time study, and the radiographer's course then require three years full time study, was something the plaintiff said she had become aware of after the accident.
Following the accident the plaintiff remained in Fremantle Hospital for 10 days, where she was attended by Mr Batalin, and was then transferred to the Shenton Park campus of Royal Perth Hospital, where she remained for about five months, prior to transfer to the Hampstead Rehabilitation Unit of Royal Adelaide Hospital in February 1998, when the plaintiff went to live in Adelaide.
Mark Lambert followed the plaintiff to South Australia about six weeks later, having been transferred there by the Navy, and in April 1998 the plaintiff and Mark Lambert moved into a defence forces house which had been modified for the plaintiff’s use by the Navy.
The plaintiff said that by February 1998 she was able to manage quite well although her mobility was not as good as it could be, and she had no sensation from the mid breast down.
Difficulties experienced by the plaintiff at that time included, she said, those involved in chair to chair transfers for shower purposes, as she lacked the necessary strength, difficulties in transferring in and out of commodes, difficulties in transferring on and off beds, due to a balance problem, difficulties in closing her upper body, again due to a lack of balance and bladder incontinence.

The plaintiff said that she had many falls with transfers and had as a result a scan of the head at the request of Mr Batalin.
Once back in South Australia the plaintiff said her mother helped her with transfers, especially in the morning and to the shower, with dressing, with car transfers for treatment, with the plaintiff’s hair especially in the shower as she had trouble balancing particularly when using two hands, and in the kitchen.
In November 1998 the plaintiff underwent surgery to her spine in Adelaide which involved, she said, a refractor and the insertion of plates and pins. As a consequence of that the plaintiff said she experienced different and increased pain, became more easily fatigued, and was unable to do as much upper body work.
At present the plaintiff said she has no movement or feeling below the nipple level and it is always necessary for her to use one hand so as to maintain herself in an upright position or to stabilise herself and she was as a consequence able to use only one hand to do other tasks.
That made such activities as transfers dangerous and very difficult to perform, the plaintiff said, and if there was a mishap she would overbalance and fall over onto her knees.
The plaintiff said that she experiences pain in the mid back around the shoulder blades and up to the base of the neck, and her neck is quite often stiff, that being exacerbated by activity.
The plaintiff is right handed and said that her right arm is stronger but she experiences more pain on that side and is able to lift a 2 kg bag with difficulty but nothing above that weight.
As a result of over use of her arms the plaintiff said that her wrists feel like they have been badly sprained, with the right worse, and she has required treatment for the same including pain killers and cortisone injections, and the provision of wrist splints which mobilise the lower arms making use of the same very difficult.
Her shoulders ache in the joints, that causes difficulty in transfers, the plaintiff said.
The plaintiff is incontinent and said that she requires to use a catheter every 2 ‑ 3 hours and her bladder constantly leaks so that pads are required.
The plaintiff said that she likes to receive assistance to transfer on and off the toilet as she finds that quite dangerous due to an inability to balance properly.
Approximately six or eight times per year the plaintiff said that she experiences urinary tract infections which make her bladder problem considerably worse for about two weeks, so that during that period there was a need to change and shower constantly and she found it very difficult to manage by herself. She also experienced headaches and pins and needles as a result of those infections, the plaintiff said.
Sleep was difficult, the plaintiff said, as she could not sleep on her front or right side and she often had bad pressure sores in the coccyx area.
The plaintiff said that she experienced depression on her release from Shenton Park as she found difficulty in adjusting and her general practitioner in South Australia had prescribed antidepressants for her.
Dressing both her upper and lower body was difficult due to her lack of balance, the plaintiff said.
Following a shower the plaintiff said that she was unable to dry various parts of her body including her back and her bottom and she found it necessary to simply wrap herself in a towel.
The plaintiff said that she experienced constant nausea.
The plaintiff experienced panic attacks when in a confined space or when encountering something that she was not able to do, she said, and the antidepressants were taken for that also.
The plaintiff said that her daily routine involved waking at about 6.00/6.30 am when her legs would be stiff and she would experience a lot of spasms, not having taken medication overnight, so that it would take about half an hour to loosen up.
Her husband would then help her off the bed and onto the toilet as there was usually some urgency, the plaintiff said, or would otherwise transfer her and if her stiffness meant that she had to wait then it would be likely she would have an “accident” so that a transfer would be difficult as everything would be wet.
The plaintiff estimated that half the time her husband would have to lift her over the toilet and two‑thirds of the time her loss of continence would result in a mishap.
If her husband was not there she would just “have a bit of an accident”, the plaintiff said.
The plaintiff was able to undress at the toilet as there was a wheelchair at the side on which she was able to lean, she said.
In order to have a bowel movement she would then have to take suppositories, the plaintiff said, and might sit for between one and two hours on the toilet.
On each of Monday, Wednesday and Friday the plaintiff said that her mother Mrs Mills came to the house and helped her.
The help provided by Mrs Mills included assistance with transfers from the toilet to a wheelchair and onto a bath seat for a shower.
Mrs Mills then passed things to the plaintiff while she showered and washed her hair, the plaintiff said, and she would not be able to manage alone as her lack of balance meant that she could not use both hands together.
Being wet made a transfer more dangerous, the plaintiff said, and she did not transfer from the bath seat to the wheelchair alone but Mrs Mills stood in front in order to stabilise her.
The bathing took between 45 minutes and 1 hour and after it Mrs Mills helped her to dry and to dress, the plaintiff said.
During the day the plaintiff’s parents then carried out heavier chores in the house such as vacuuming, washing and stripping of the beds, as the plaintiff said she was unable to do that. They also did the shopping for the house, with the plaintiff going along.
The plaintiff said that she does drive the family motor vehicle once or twice per month, and it has been fitted with modified hand controls, and she had transferred from her wheelchair to the car unaided, but that was dangerous and she probably had a 50 per cent success rate, as it was a “big lift” and she could not get close enough to the driver’s seat with a consequent danger of their being a fall between the chair and the car.
Once in the car it was necessary for the plaintiff to dismantle the chair and put the various parts of it in the vehicle, which was also hard, the plaintiff said.
When behind the wheel and driving the plaintiff said that she was not able to obtain sufficient stability from the seat and tended to fall forward when turning so that it was necessary for her to travel around corners very slowly.
The plaintiff made sure that there was always someone at the other end to assist her with a transfer there, she said.
She was only able to drive for 15 or 20 minutes, she said.
For those reasons the plaintiff said that she preferred not to drive, and found it difficult, uncomfortable, and not safe.
When Mark Lambert was on night duty Mrs Mills provided assistance to her, the plaintiff said, and when he was away at sea Mrs Mills ordinarily stayed with her at night.
The plaintiff said that she was able to carry out some food preparation but did not attempt to manage pots containing boiling water as she had experienced an accident with such a pot. Both her mother and Mark Lambert assisted her with food preparation, she said.
Household chores that she was able to do included the dishes, some cleaning, tidying, folding clothes and washing, the plaintiff said, but she was not able to do heavier things such as mopping, sweeping, vacuuming and stripping beds.
The plaintiff said that she was not able to carry out the laundry of heavier items.
At the night the plaintiff was assisted with a transfer into the bed, she said, as by that time she felt weak, tired and sore.
The plaintiff has items of gymnasium equipment, those being recommended by Hampsted, she said, and she exercised as she was able with those.
The plaintiff considered that it would be now difficult for her to study or work as due to her absence of stamina she was not able to sit for very long whilst her bladder problems and inability due to her balance difficulty to type with two hands on a key board would also present problems.
In relation to bearing a child the plaintiff said that she and Mark Lambert had discussed that and she thought there would be difficulties and it would be necessary for her to receive assistance until a time when the child was able to walk.
Mark Lambert and Mrs Mills also gave evidence of the difficulties experienced by the plaintiff and the assistance provided to her.

Medical evidence

Mr Peter Watson, a neurosurgeon, saw the plaintiff in August 1999 at the request of her solicitors.
The plaintiff did not then have any work capacity, and at "best" might be able to do some part-time typing work from home in the future, the doctor then reported, and "currently" the plaintiff was "for all intense (sic) and purposes … totally and permanently incapacitated."
Mr Watson said the plaintiff had a permanent residual disability as that of a T4/5 paraplegic, with a reduced life expectancy, the likelihood of accelerated degenerative change in the spine above C7/T1, that being the level to which she had been fused, and a possibility of further problems in spinal cord function if an ascending syrinx developed in the spinal cord.
In evidence Mr Watson said there was at least a 20/30 per cent chance of there being a significant syrinx, and that could develop as late as 10/15 years after the accident.
Treatment involving surgery and draining of a syrinx was necessary for a significant syrinx, he said.
Mr John Ker, a specialist in rehabilitation medicine, saw the plaintiff at the request of her solicitors in August 1999.
In a subsequent report Mr Ker said that while the plaintiff might in the longer term be able to undertake various clerical tasks at home he doubted "that she would ever be able to achieve … open employment."
The surgery carried out in South Australia in 1998 had resulted in deterioration of trunk control to the extent that the plaintiff almost invariably propped with one arm and was unable to undertake almost any bi-manual activity when seated, the doctor stated, and that would prevent her from undertaking systematic keyboard or other clerical work.
Mr Ker also considered the plaintiff was vulnerable to future degenerative change in the shoulders and spine, and would need to remain vigilant in the care of her bladder to avoid any future loss of renal function.
In relation to the development of a syrinx, or syringomyelia, Mr Ker said he had seen it appear well after 10 years, but the highest incidence of that recorded in any study of which he was aware was 24 per cent, which included asymptomatic cases.
As to the role, if any, played by the plaintiff's omission to wear a seatbelt in the severity of her injuries, Mr Ker said that even where a seatbelt was worn there could still be a spinal cord injury including high level paraplegia sustained in a motor vehicle accident. He was, he said, unable to say what the difference in likelihood would be of the plaintiff having sustained her injury if she had been wearing a seatbelt and did not see how anyone else would be able to say that. Mr Ker did however agree that the injury sustained by the plaintiff would have been less likely had she been retained in the vehicle.
Mr Batalin, an orthopaedic surgeon, saw the plaintiff at Fremantle Hospital on midday on the day of the accident, 10 September 1997, and noted she had presented at hospital with
"serious chest and spinal injuries which included:
1. Severe fracture dislocation of T5/6 vertebra with complete paraplegia below T4 spinal cord level.
2. Chest injury with bilateral posterior adjacent rib fractures including fracture of transverse process of T4 and bilateral haemothoraces as well as some signs of numo- mediastinum."
He also noted that initial x-rays showed the thoracic spine had kyphotic angulations at the T5-6 level, but did not see any indication for surgical intervention at that stage, as he considered that was likely to increase the morbidity.
In August 1999 Mr Batalin reviewed the plaintiff and reported the plaintiff's symptoms then included an absence of control or movement, apart from some spasm, in the lower three quarters of her body and the lower limbs, of appreciation of sensation from the nipple down, of normal bladder function, or of voluntary control of normal bowel function, together with a "moderately troublesome continuous feeling of pain in the upper thoracic spine", worse since the surgery, increased sensitivity in the upper rib area, pain in the back of the right shoulder blade, and a susceptibility to problems over the insensitive part of her body.
The plaintiff's inability to return to gainful employment was likely to be permanent, in the doctor's view.
In a subsequent report of 20 October 2001 Mr Batalin expressed the view that in the light of his experience, and given the plaintiff's expressions of need, it was reasonable to make allowance for the plaintiff to have approximately three hours of personal care assistance including domestic help to the age of 40 with a possible increase of half an hour from that age on.
In that regard Mr Batalin said in evidence that the plaintiff's balance would be adversely affected by the fusion surgery which would adversely affect her daily activities, whilst problems might arise on transfers.
In cross examination Mr Batalin initially agreed that had the plaintiff been wearing a seatbelt and not been thrown from the vehicle at the time of the accident there was "probably significantly less chance" that she would have sustained a spinal injury.
In re-examination the doctor agreed however that in order to express a concluded opinion it would be necessary to be aware of the velocity and violence of the movements of the vehicle, and that even with bi-engineering analysis there was no direct predictability and "(o)ne (was) often surprised with the severity of injury involving – allegedly to be a trivial incident." Therefore Mr Batalin said "there is some difficulty in postulating exactly what happens, and I must stress what I have said before is postulate."
Dr Bolt is a urologist who saw the plaintiff when she was under the care of the Hampstead Rehabilitation Centre.
On 20 July 2001 Dr Bolt reported that:
"The adverse affects that (the plaintiff) will have will be the problem with bladder control with incontinence if she does not self catheterise and take anticholinergic medication. Sometimes the intervals between catheters might be short with two to three hour intervals and it is possible that she might leak in between catheters depending on her fluid intake and other factors that irritate the bladder. This will always be a problem for her. Long term she is likely to continue having recurrent infections from time to time. These may be minimised with good technique with self catheterisation.
My diagnosis of this patient is that she has a neurogenic bladder, which leads to unstable contractions in her bladder with reduced capacity and increased incontinence. This is directly due to her spinal injury at the level of T4.
Long term the patient will need regular surveillance with urinary ultrasounds and monitoring and treating urinary tract infections, supply of catheters and equipment to maintain these in a clean and/or sterile state. She is likely to experience episodes of incontinence and infections from time to time and she may well need to have this whole bladder management reviewed with major surgery and a bladder augmentation later in her life.
The condition will be reasonably stable but there will be exacerbations with problems with infections and/or incontinence. Over the years the bladder muscles might deteriorate and her incontinence may get worse.
If the condition deteriorates from the point of view of incontinence a bladder augmentation will be needed. This is a major procedure which requires 10 to 14 days in hospital and then requires ongoing surveillance long term because there can be problems with having a bowel mucosa put into the bladder. It does tend to work well but there can be associated problems with mucus, infections and surgical complications and on very rare occasions malignant change within the bladder mucosa. For this reason long term surveillance with annual cystoscopies is required."
Dr Strayer is a consultant in rehabilitation medicine and the deputy director of the orthopaedic amputee and spinal injury rehabilitation programme at Hampstead, and has seen the plaintiff on many occasions between April 1998 and June 2000.
In evidence Dr Strayer said the surgery of 1998 had not been as effective as the plaintiff's doctors "would have liked".
Dr Rose has been the plaintiff's general practitioner since April 1998. On 20 September 2001 he reported that the plaintiff's accident related difficulties included the following:
"1.Loss of sensation and of voluntary movement from the upper thoracic spine down. This means that she is confined to a wheel chair and can use her arms only, Transferring to and from the wheelchair requires assistance.
2.Nerve pain affecting the buttocks, legs and feet. This is continuous and can vary from tingling to pain. She takes carbamazepine and Panadol for this pain. Codeine or any other narcotic derivatives would be too constipating, and are not tolerable. This means that her pain is more significant than the treatment would suggest.
3.Chronic constipation because of the injury. The patient can take 2 hours to evacuate her bowel because of lack of voluntary assistance.
4.Thoracic back pain – related to the fractures and the plating. The upper thoracic spine above the fractures has extra demands placed on it, and is the source of functionally induced pain as well as neuropathic pain due to damage to the nerves in the area.
5.Incontinence of urine. The bladder lasts only 90 minutes before it evacuates. Urination takes 15 minutes.
6.Urinary tract infections. These occur every 6 weeks and are the result of the paraplegia.
7.Buttock wasting and pressure sores. Heidi has chronic scarring and inflammation over the ischila tuberosities and suffers recurrent pressure sores.
8. Nausea – this is chronic, but I do not know its cause.
9.Right more than left wrist soreness. This is a result of chronic tendonitis related to the heavier than normal use of the wrists in transferring to and from the wheelchair and from self propelling the chair.
10.Poor sleep onset – due to pain.
11.Dryness and soreness of the nose and dryness of the mouth due to side effects of the medication. Drinking extra liquid aggravates the bladder problem.
12.Panic attacks. These post date the injury and are a consequence thereof.
13.Poor upper body balance. This is due to lack of power below T5. The patient has to prop with one hand in order to use the other. This makes two handed activity extremely limited and unstable."

Liability

It is first incumbent on me to determine whether the defendant breached the undoubted duty of care he owed to the plaintiff, and whether, if there was such a breach, that caused injury to the plaintiff.
The particulars of negligence pleaded in the amended statement of claim are as follows:
"8.The Defendant;
(a)failed to keep any or any adequate look out for the Plaintiff's vehicle;
(b)drove at a speed which was in excess of the speed limit on Kwinana Freeway at the place of the collision;
(c)drove at a speed which was excessive in the circumstances;
(d)failed to brake, slow down or otherwise manoeuvre the Defendant's vehicle so as to avoid collision with the Plaintiff's vehicle;
(e)drove the Defendant's vehicle so as to block the Plaintiff from changing lanes in the Plaintiff's vehicle."

In opening senior counsel for the plaintiff then advanced the claim on the basis that the defendant had an obligation to slow his vehicle to allow the plaintiff into the righthand lane, that the defendant had not apparently seen the plaintiff pass him to the left and had thus failed to keep a proper look out, and that had the defendant allowed the "usual courtesies" the plaintiff could have successfully changed lanes.
In relation to the mechanism of the accident there is ultimately not a great deal of relevant controversy.
It is common ground that the defendant was in the righthand lane, that the plaintiff came up behind him, then moved to the lefthand lane and ahead of the defendant to at least some extent, and then moved back into the righthand lane ahead of the defendant, the collision occurring between the very rear of the plaintiff's vehicle on the right and the front of the defendant's vehicle on the left, and without the defendant having braked or otherwise driven his vehicle so as to avoid that collision.
It is also common ground, in the sense that the defendant asserts and the plaintiff accepts and indeed relies on the assertion, that the defendant was unaware of the presence of the plaintiff's vehicle as it came alongside and moved past his vehicle and until it moved back into his path.
As to that, in the words of the old saying in this area of the law, the fact is that the plaintiff's vehicle "was there to be seen".
The defendant was travelling down a busy freeway at speed, and had observed a vehicle travelling at a faster speed come up behind him, unequivocally in my view thus indicating a desire to go past him, whilst he had not moved over to the left in response, as the traffic code ordinarily then required, that failure being justified, it was said, as the defendant was approaching slower moving traffic in the lefthand lane.
The defendant put forward conflicting statements as to any further awareness of the plaintiff's vehicle, the first being that the next time he saw it was when the collision occurred, the second, and subsequent, being that he looked again in his rear view mirror and the plaintiff's vehicle had gone from behind him.
I am content to proceed on the basis of the later statement, and it follows from it that a reasonable person in the position of the defendant would have been aware that the plaintiff's vehicle had changed to the lefthand lane, there being nowhere else it could go, so that there would be a high degree of probability that the plaintiff had done that in order to pass the defendant's vehicle.
If, as the defendant said in evidence, and again I am content to proceed on the basis of it, traffic in the righthand lane was travelling more quickly than that in the left, it would be very likely that the plaintiff would, after passing the defendant's vehicle on the left, cross in front of it in order to continue down the righthand lane.
There were thus good reasons why a prudent driver would need to keep the plaintiff's vehicle under observation, and would do so.
As a matter of ordinary experience a driver would in any event normally be conscious of a vehicle alongside his/her own, whether on the right or left, and that consciousness would increase as the vehicle moved past and to the front.
Indeed, the defendant claimed to be keeping under observation another vehicle in the lefthand lane.
Irrespective of the other circumstances I would therefore find that the defendant's lack of awareness of the plaintiff's vehicle in the lefthand lane demonstrated a failure on his part to maintain the look out required of a reasonable person in the circumstances.
The collision which followed that failure involved, quite literally, a matter of inches, or centimetres, and the lightest touch to the defendant's brakes prior thereto would have avoided it.
Had the defendant been aware of the plaintiff's vehicle there would have been sufficient time for him to so brake and avoid the collision and its consequences.
The defendant's breach of duty was thus a cause of the collision.
That is so whatever the speed of the plaintiff's vehicle, or determination of the issue whether or not the plaintiff's vehicle had cleared the defendant's vehicle so that its rear was ahead of the front of the defendant's vehicle, or the issue as to the precise manner in which the plaintiff moved back into the righthand lane.
I will deal with the issues referred to as it is necessary to do so in relation to the issue of contributory negligence.
As to speed there is support in the evidence for a finding that the southbound traffic generally was travelling at or a little above the speed limit of 100kph, including the evidence of the plaintiff and Mr Pritchard, and I would find that was so, and that the plaintiff was travelling in excess of that when she came up to, and then went past the defendant's vehicle, and probably at a speed of about 110kph, as she estimated.
That would accord approximately with the estimates of Mr Bokulic and Mr Pritchard, in circumstances where none of the witnesses was trained in the estimation of speed or apparently had recourse to his speedometer, and where Mr Pow's estimate was at odds with an earlier estimate made by him.
The plaintiff's evidence that she indicated and changed lanes behind the defendant in a proper manner also gained support from Mr Bokulic and Mr Pritchard, whilst Mr Pow's evidence of a "rally" movement seemed somewhat at odds with his description of it being a "controlled movement".
The assertion does raise for consideration the general manner of the plaintiff's driving on that morning.
The purpose of the plaintiff's journey was to catch up with her partner so as to attract his attention and no doubt stop when able and hand over his keys.
Mr Pritchard, called by the plaintiff, said he observed the plaintiff cross lanes twice before coming up to his vehicle and passing it on the left.
Notwithstanding that, Mr Pritchard was of the view that the plaintiff's manner of driving had not been excessive or dangerous, and Mr Bokulic's evidence was also that the plaintiff's vehicle movements had been steady.
The plaintiff was an intelligent and impressive witness, and not a person whom I considered would be likely to drive in an extravagant manner, albeit that she was prepared to speed in the controlled conditions of a freeway.
Further, there was no reason why she would need to perform a "rally" like movement, and I would not accept Mr Pow's assertion that occurred.
The plaintiff, having changed back to the lefthand lane, and having "proceeded to overtake" the defendant's vehicle, as Mr Pow put it, did, I would find, clear that vehicle.
The plaintiff's stated belief was that she had cleared the defendant's vehicle, in circumstances where she said she had checked her mirrors and looked over her right shoulder, and Mr Bokulic, albeit from a position behind the plaintiff, thought the same.
Although Mr Pow, who was also behind, did not believe the plaintiff achieved that, he supported the plaintiff's evidence that prior to her moving back into the righthand lane she had looked over her right shoulder.
In my view that provides clear confirmation that the plaintiff had such a belief, and, apart from the defendant who was not looking, the plaintiff was in a better position to judge than the other witnesses, including Mr Pow.
The plaintiff, as she said she did, indicated her intention to move back, as she had done with earlier lane changes, and there being every reason why she would do so and none why she would not, whilst those behind who did not see an indication were either partially obscured or less than definite.
The plaintiff's movement back towards the righthand lane was then a steady one, as Mr Bokulic, whose evidence I accept, confirmed.
The defendant's observations were necessarily conditioned by his absence of any awareness of the plaintiff's presence until the collision occurred, whilst his evidence revealed inconsistencies, including that relating to the assertion that the plaintiff's vehicle may have been out of control when it came in front of him, and his assertion unsupported by the other evidence, that he immediately braked, and, having heard it, I would not rely on his evidence.
That the defendant's speed did remain constant prior to the collision was attested to by other witnesses.
The probable explanation for the plaintiff having insufficient room to move into the righthand lane ahead of the defendant is then, I would find, apart from the defendant's failure to brake or to otherwise avoid the collision, that the plaintiff's speed must have diminished a little after she moved ahead of the defendant, perhaps whilst checking her mirrors and looking over her shoulder, so that she was no longer clear by the time the rear of her vehicle came to move into the righthand lane.
That reveals an error of judgment on the part of the plaintiff.
Senior counsel for the plaintiff sought to argue that it did not follow from any finding of an error of judgment that the plaintiff was herself guilty of negligence, but in my view the plaintiff did fail to exercise the care required of a reasonable person in the circumstances, and was guilty of a breach of duty of care.
The plaintiff of course also failed to wear the seatbelt fitted to her vehicle, and thus failed to take reasonable care for her own safety.
That, I would find, and as Mr Ker stated, increased the likelihood of spinal injury in the event of the accident of the car in which occurred.
Any accurate assessment of the increase in degree of likelihood is difficult on the material here, as the same doctor and also Mr Batalin said.
However, given that the comparison is between the actual circumstance where the plaintiff was thrown out of her vehicle onto the ground, and the hypothetical situation where the plaintiff would have been restrained by the seatbelt within her vehicle in the absence of failure of the belt, as a matter of commonsense I consider that on balance I ought find that the plaintiff's injuries were more severe as a result of her failure, although the extent of the increase in severity must be assessed conservatively, given the medical evidence referred to.
It is therefore necessary to consider what the respective contributions of the plaintiff and the defendant to any damage suffered by the plaintiff ought be.
Travel down a freeway during peak hours involves vehicles travelling in close proximity to each other at relatively high speeds, on a confined roadway, and with vehicles often seeking to change lanes whilst just ahead of other vehicles.
Drivers usually expect to be allowed to do that and are permitted to do so, for the sake of traffic flow.
The evidence of Mr Generowicz, a civil and traffic engineer called by the plaintiff, is relevant in that regard.
I do not accept the defendant's assertion that the traffic generally was slowing or that it was not possible for the plaintiff to pass him on the left.
The speed difference between the two vehicles when the plaintiff passed was, she thought, about 5kph, and I think it probably was of that order, and certainly no more than 10kph.
There was thus ample time for the defendant to observe the plaintiff's vehicle.
The plaintiff, I accept, indicated first and then checked her mirrors and looked over her shoulder, prior to moving towards the righthand lane.
The plaintiff's indication would thus have been visible to a person in the defendant's position for there to be sufficient time for a reaction, including an application of the brake, prior to the plaintiff's manoeuvre.
Had the defendant been keeping a look out the accident could therefore have been averted by him.
In the circumstances the defendant's failure to keep a proper look out was a significant breach of duty.
It was also causally important to the occurrence of the accident.
In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 the Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) stated (at 494) that the following approach to such a task ought be adopted:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
In March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Mason CJ (with whom Toohey and Gaudron JJ agreed) said (at 514) after a discussion of the "last opportunity rule":
"Although the rule did not in reality go to the issue of causal connexion, its operation was often described in the language of causation. Hence the abolition of the rule enabled the courts to apportion liability as between a plaintiff whose contributory negligence and a defendant whose negligence both were concurrent causes of the plaintiff's injuries, in the same way that the courts can now apportion liability between concurrent tortfeasors whose negligence materially contributes to a plaintiff's injuries. In this respect some of the obstacles which precluded the adoption of a legal approach to causation similar to that taken by philosophy and science have disappeared. But, because legal questions of causation are asked and answered with a view to allocating legal responsibility, very often on the basis of fault, an identity of approach is not possible."
In his defence, the defendant provided the following particulars in support of his allegation that the plaintiff was guilty of contributory negligence:
"The plaintiff was negligent in that she:
(a)travelled at a speed which was excessive in the circumstances;
(b)failed to pay any or any proper attention to road conditions prevailing at the time and the presence of the defendant's vehicle on the freeway; and, prior to the collision, had been weaving in and out of traffic as though she was in a hurry;
(c)suddenly, and without warning, made a sharp movement to the right and clipped the left front corner of the defendant's vehicle and, as a result, the plaintiff lost control of her vehicle;
(d)failed to ensure that it was safe for the plaintiff to change lanes to her right before attempting to do so;
(e)failed to indicate her intention to move to her right and into the path of the defendant;
(f)moved to her right when she knew or ought to have known that it was unsafe (and) dangerous to do so and without allowing any or any adequate clearance in front of the defendant's vehicle;
(g)moved from a position behind the defendant's vehicle to her left, overtook the defendant and suddenly moved to her right and into the path of the defendant's vehicle;
(h)failed to wear a seatbelt which was available to her."
I have dealt with each of those particulars in my findings above.
The plaintiff's breach, apart from her failure to wear a seatbelt, resulted from an error of judgment, made in the course of driving in circumstances where she was anxious to pass the defendant's vehicle.
The defendant's breach was of a different kind, being a failure to drive with the necessary regard for others required in the circumstances.
After due consideration of my findings, including those as to the defendant's breach of duty, the plaintiff's breach of duty, the culpability of the party and the significance of the breach in each case, and the plaintiff's failure to wear a seatbelt, I consider a just apportionment of responsibility between the parties is one where the plaintiff is deprived of 55 per cent the damages to which she would otherwise be entitled.

Damages

The parties have nominated specific heads in schedules which set out the agreed amount or their respective positions as to an appropriate award under each of those heads.
It is proper and convenient that I adopt the same heads in assessing the plaintiff's loss therefore, and I do so.
The plaintiff might, in the opinion of Mr Ker, have a slightly reduced life expectancy, and in recognition of that it was conceded on her behalf that any balance of life items of damage be assessed to an age less than that set out in the life tables, the age put forward being 74 years.
Statistically the expectation of the plaintiff would be to live to an age in excess of 82 years (see Luntz 4 ed (2002) p 705) and the concession is in my view a reasonable one and I have adopted the same and assessed the relevant heads of damage based on the plaintiff having that expectation of life.
I have also made a deduction from the non‑agreed items of damage for contingencies, of 5 per cent, except where otherwise stated: see Black v Motor Vehicle Insurance Trust (1986) WAR 32.
Leaving aside the question of interest it was not suggested that there was any relevant statutory constraint on my ability to assess or award a sum for damage of any particular kind.
The allowances are then as follows.
1.Past travelling expenses
I allow the agreed sum of $3,060.
2.Past medication expenses
I allow the agreed sum of $6,150.
3.Past treatment expenses
I am informed that these had all been agreed on the basis that there ought be an award in respect of some items, whilst the defendant had agreed to indemnify the plaintiff in respect of others. Those to be the subject of the award were, as I understand it:
3.1general practitioner attendances $445
3.3consultations with Mr Batalin $3,290
3.4options $4,798.75
I allow $8,533.75 under this head.
4.Past miscellaneous expenses
I allow $15,000 as agreed.
5.Past miscellaneous equipment
I allow $16,127 as agreed.
6.Future travelling expenses
Although I am told there has been an agreement the plaintiff's schedule sets out a sum of $12,500 whilst that of the defendant allows $12,250. I will provisionally allow the lesser sum and hear further from the parties in respect of this head.
7.Future medication expenses
I allow $31,500 as agreed.
8.Future doctor attendances and other medical attendances
8.1general practitioner
The plaintiff claims for eight attendances per year, the defendant says that four is reasonable.
The plaintiff's estimate is said to be based on Mr Batalin's report of 25 August 1999, but that doctor agreed there with an estimate of between six and eight attendances, whilst Mr Ker in his report of 2 September 1999 said he would support such attendances on a quarterly basis.
The plaintiff's actual attendances on Dr Rose since she returned to South Australia also tend to support Mr Ker, and I make an allowance on that basis.
The product of the average weekly cost of four attendances at an agreed rate of $40 and the multiplier of 842, less 5 per cent for contingencies, is then $2,461.
8.2occupational therapist
The plaintiff says two reviews per annum, at a cost for each review of $80, is reasonable, and the defendant says that one only is likely to be required, whilst Mr Ker supports the latter view, which I adopt.
The plaintiff is then entitled to an allowance, calculated in the same way, of $1,231.
8.3urologist
Again the difference is whether the review ought be once or twice per year, and in relation to this Mr Ker supports the plaintiff, and I make the allowance on that basis, such being calculated on a cost per attendance of $150, and in the same way as set out above, the relevant sum being $4,615.
8.4physiotherapist
The plaintiff claims monthly attendances, the defendant denies any allowance is necessary.
Mr Batalin in his report said that the plaintiff may need "occasional 'top up' physiotherapy", and I prefer his view, as a specialist medical practitioner, to that of the occupational therapist Ms Jodrell.
If $100 per year is allowed, then the above method produces a sum of $1,535.
8.5psychologist/psychiatrist
The plaintiff's solicitors put forward five attendances per year at $200 for the rest of the plaintiff's life, the defendant says $1,500, being 10 attendances at $150 each over a six month period, is all that is justified on the evidence.
In September 1999 a psychiatrist Dr Loke diagnosed the plaintiff as suffering from a major depressive disorder of moderate to severe extent and recommended a course of anti‑depressant medication, which he thought would be likely to be required over 1 – 2 years, together with "cognitive behavioural therapy" from a clinical psychologist, and said about 12 sessions could be required.
The plaintiff has been prescribed such medication by Dr Rose, but has not sought counselling and said she intended to see a psychiatrist when the litigation had been concluded.
I will allow $1,800.
8.6orthopaedic surgeon; pain specialist; etc.
The plaintiff claims for three attendances per year, the defendant says only one ought be allowed for.
Mr Batalin thought that attendance on an unspecified specialist was "likely to be 2 to 3 times a year", Mr Ker said he believed "general spinal specialist reviews" would be needed every six months, and Mr Watson alluded to three attendances to specialists, apparently per year, without reference to the nature of the speciality.
I follow Mr Ker's belief, and allow two visits per year at $200 each, which with the use of the same method results in an allowance of $6,153.
8.7ultrasound
The plaintiff accepts $303 is the correct fee and says an allowance of one such investigation per year ought be made, the defendant says the investigation is likely to be "biennial".
The plaintiff relies on the evidence of the neurologist Dr Bolt, who stated in his report of 10 July 2001 that the plaintiff would require "at least annual surveillance with the ultrasound", and who was not cross‑examined in respect of that.
I adopt that estimate and in the same way derive an allowance of $4,661.
9.Future hospital expenses
9.1annual hospitalisation
The plaintiff seeks one week's hospitalisation per year at a daily rate of $495, whilst the defendant says hospitalisation might not be necessary, and Mr Ker in any event thought five days per year only might be required.
The plaintiff seeks to add to that an estimate of $3,000 per year for medication and specialist treatment, and the defendant says there is no evidence as to that.
Mr Batalin's estimate of the likely need was more or less for one week a year, and given the plaintiff's ongoing difficulties in my view any estimate is likely to prove conservative rather than the converse, so that I will allow a week.
That doctor, Mr Ker, and Mr Watson all spoke of the need for treatment whilst the plaintiff was in hospital, and plainly that would come at a cost.
Doing the best I can, I would allow $2,000 for the approximate cost of treatment and medication so that the total annual cost would be $5,465, and the allowance, derived as above, is $84,066.
9.2surgery for bladder augmentation and bladder management
The plaintiff seeks $25,000, the defendant says that the estimated cost on the evidence is about $10,000, and there is no indication as to when surgery might be necessary.
It is the case that in Dr Bolt's report of 6 November 2001 the estimated cost of a bladder augmentation was said to be of the order of $10,000.
However, the doctor also made reference to the likely need for annual surveillance with cystoscopy after five years if an augmentation was carried out and also to the likelihood of the plaintiff suffering from bladder stones or kidney stones.
In the circumstances, and having regard to the costs of those procedures as set out in the report, I consider the allowance sought of $25,000 is reasonable.
10.Past gratuitous services
I allow the agreed sum of $87,000.
11.Future carer services/domestic assistance
The plaintiff sought an award under this head on the basis that there would be likely to be a higher level of need after age 40 years, so that any allowance ought be assessed in two stages, the first up to age 40 years, and the second for the period from that date on.
That submission was based on the approach of Ms Jodrell, who was not challenged on it, whilst there is support for the likelihood of ongoing physical degeneration in the medical evidence, including that of Mr Batalin, Mr Watson, Mr Ker and Dr Bolt.
The defendant's approach, that any increased need was likely to become manifest only at age 55 years, based on the report and evidence of Dr Fong and Ms Mitchell, is I consider unduly conservative and unrealistic, in the light of that medical evidence, and I prefer and adopt the approach of Ms Jodrell.
The defendant then invites me to assess the allowance on the basis that the plaintiff should have nothing for personal care until age 55 years.
Again that generally follows the report of Dr Fong and Ms Mitchell.
The evidence of the plaintiff, set out above, was that she has had, and continues to have, a need for personal care and assistance, particularly in relation to, but not limited to, transfers and bathing, and that such need is met by the provision of services by, in particular, Mark Lambert and the plaintiff's mother, Mrs Yvonne Mills.
That those services were provided was confirmed by Mark Lambert and Mrs Mills, neither of whom was cross‑examined.
Dr Rose, who was also not cross‑examined, confirmed the need, as did Mr Batalin.
There is again unchallenged evidence that Dr Fong and Ms Mitchell were informed of the provision of those services, prior to the preparation of their report. That report made reference to "approximately 30 minutes per day of light assistance and supervision for (the plaintiff's) showering". That in my view does not accurately reflect the services provided.
Ms Jodrell estimates the present level of the plaintiff's need for personal care to be three hours per day, and given the evidence of the plaintiff, Mark Lambert and Mrs Mills that would appear a reasonable estimate.
A question of overlap does arise, however, in the event that an allowance is made for a special motor vehicle, as Ms Jodrell, after noting that the plaintiff was apparently having increased problems with her wrists, stated in a report of 20 September 2001:
"Miss Mills reported that her most difficult transfer was in and out of the car. Although she is able to execute this transfer independently, she reports that it causes her discomfort in her wrists and back, as it is an awkward manoeuvre. Miss Mills reports that she is still able to drive and wants to maintain that skill however she always requires someone with her to assist with transfers and loading her wheelchair. Miss Mills stated that she does not go out unless she has someone to accompany her. At present Miss Mills' mother accompanies her on most outings when they go shopping or visit Miss Mills' sister and new baby.
In view of this recent information regarding Miss Mills reduced ability to transfer I would recommend that a further 2 hours per day per day be allocated to the personal care requirement for Miss Mills. This would provide a total of three hours per day personal care. This would allow for a carer to assist with transfers in and out of the car and to the toilet when she is out visiting, showering and loading / unloading wheelchair for transport."
The provision of a vehicle with a ramp would of course obviate the need for transfers and loading/unloading a wheelchair, in relation to the vehicle.
An allowance for such a vehicle being made, I would reduce the allowance for personal care to two hours per day.
A reasonable rate is $26, given the rates of Carealot, and White Oak, which are on the evidence reputable care providers, and whose rates were put forward by the defendant.
Ms Jodrell makes a present allowance for four hours per week for cleaning and laundry, five hours per week for meal preparation and cooking and three hours per week for shopping, and in relation to the latter it is apparent that there is again overlap if an allowance for a special vehicle is made.
I would therefore reduce the shopping allowance by one hour, and otherwise accept the estimates as reasonable given the evidence referred to, so that I allow 11 hours per week for domestic and shopping assistance.
Again, the allowance for those matters in the Fong and Mitchell report seems to have largely ignored the extent of the services actually provided, whilst the absence of any provision for shopping assistance on the basis that employees of stores and taxi drivers could provide the same is misconceived.
A question does arise whether the rate for this assistance ought reflect that paid to a domestic agency, for cleaning work, that being about $16, or whether it ought be the higher carer's rate, and Ms Jodrell's estimate, in her report of 7 February 2001, set forth rates of that kind.
However, if the plaintiff requires paid assistance, as she undoubtedly will in the event that she returns to this State and her husband is away at sea, it is more realistic to proceed on the basis that there will be one carer, from an agency such as Carealot or White Oak.
The former agency sets out different rates for work of various kinds, and on the basis of the rates for this work I consider a reasonable rate is $22.50.
After age 40 years Ms Jodrell estimated that the plaintiff would need between 6 and 10 hours per week for cleaning and laundry assistance, and I allow eight hours, together with six hours per week for cooking assistance, which I allow, and three hours for shopping assistance, and I allow two hours, a total of 16 hours.
It is not suggested the need for personal care will change.
The allowances are then as follows.
11.1up to age 40 years
(a)The need for domestic assistance of 11 hours per week at a rate of $22.50, with the multiplier put forward by the plaintiff of 457.7, less 5 per cent for contingencies, results in an allowance of $107,618.
(b)Calculated in the same way, but at a rate of $26 per hour, the allowance for 14 hours per week of personal care is $158,273.
11.2after age 40 years
(a)For domestic assistance of 16 hours per week at a rate of $22.50 per hour, with a multiplier of 384.3, less contingencies, an allowance of $131,431 is derived.
(b)Again, the same method applied to 14 hours per week of personal care at a rate of $26 per hour, results in an allowance of $132,891.
The total allowance under this head is then $530,213.
12.Past loss of income and interest
I allow the agreed sum of $115,000.
13.Future loss of earning capacity
At the date of the accident there was in existence a group disability income insurance policy arranged by the plaintiff's employer SKG Radiology with the National Mutual Life Association of Australasia Ltd for the benefit of its employees, including the plaintiff.
Pursuant to that policy the plaintiff has received weekly payments representing 75 per cent of the salary she would otherwise receive, it would appear since the accident.
The defendant says that the likelihood that the plaintiff will continue to receive such payments is something that must be taken into account in reduction of any allowance made under this head.
However, having regard to the policy and its apparent purpose, in my view the recent decision of the High Court in Commissioner of Taxation v Scully (2000) 201 CLR 148, 168 – 170 makes it plain the converse is true.
As to retained earning capacity, I accept the evidence of Mr Ker and Mr Batalin that none remains, something practically conceded by Mr Brooksby, when he made reference to a "minimal retained earning capacity".
Assessment of the loss under this head calls for a choice, derived from a consideration of the evidence, between utilisation of the plaintiff's pre‑accident net income and the net income she might have derived as a radiographer, had the accident not intervened and had she followed that career path.
The issue does not call for any finding on balance: see Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
I have already expressed my finding that the plaintiff is an impressive young woman, and I have no doubt that but for the tragic events of 10 September 1997 she would have progressed beyond secretarial work in her career.
Having heard the evidence as to the pre‑accident discussion about the plaintiff giving up full‑time work to study radiography, I did not, however, consider that had reached the status of a settled pain, or had gone beyond something mentioned as a mere future possibility.
Further, it is not without relevance the plaintiff and Mark Lambert had not then married, and the plaintiff had not at that time even ascertained what was required for her to qualify as a radiographer, whilst inevitably, and in the circumstances, some degree of rationalisation is likely, particularly given the period of time since the accident.
I would therefore assess the plaintiff's loss on the basis of her pre‑accident income, and would for the reason mentioned take into account the contingency that it was extremely likely that the plaintiff would have significantly increased her income at some time in the future.
The defendant submitted, without demur from counsel for the plaintiff, that the plaintiff's net income from SKG Radiology could be regarded as on average $425 per week, whilst the part‑time work she then undertook produced, on average, the net sum of approximately $55 per week, so as to produce a total net average weekly income of $480.
The use of a multiplier of 803 produces the sum of $385,440.
I would then balance the various contingencies, including the likelihood that the plaintiff would have ceased or reduced her work for a period to study, would have ceased work for a period to have a child or children, and would have been likely to have worked part‑time thereafter for a period, and to have increased her income as described, and also take into account contingencies, by adding 10 per cent to that sum, so as to derive an allowance under this head of $423,984.
14.Past loss of superannuation benefits
I allow the sum of $8,500 as agreed.
15.Future loss of superannuation benefits
It is necessary to assess this in accordance with the manner in which I derived the allowance for future loss of economic capacity.
In the absence of evidence to the contrary the value of the notional employer's contribution ought be discounted by 30 per cent to reflect taxation, fund expenses, possible losses and the like: see Jongen v CSR Ltd (1992) A Tort Rep 81-192; Nolan v Hamersley Iron Pty Ltd (2000) 23 WAR 287, 289.
The appropriate rate of that contribution is 9 per cent, and the gross weekly wage derived from the total average net weekly income of $480 is approximately $600.
The calculation is then 803 x $38 + 10 per cent and the allowance $33,565.
16.Future wheelchair expenses
16.1Everyday wheelchair
I find, in the light of the evidence of the plaintiff and Mr Bonavita, and given Ms Mitchell's concession that individual choice as to an appropriate wheelchair ought be respected, that the assessment ought be based on the Mogo chair or its equivalent, the cost of that being $2,600, and it being reasonable to anticipate replacement every two years.
Use of the table put forward on behalf of the plaintiff, which was not otherwise criticised, and with the necessary change in relation to price, and after a discount for contingencies, produces the sum of $21,368, which I allow.
16.2Sports wheelchair
The plaintiff claims an allowance of $45,423 for this. No medical evidence was put forward in support of the claim, and it seems to me, having regard to the plaintiff's disabilities, the medical evidence given as to the plaintiff's present and future requirements, and my obligation to assess fair but not perfect compensation, the likely degree of utilisation of any such item would be sufficiently great as to justify the award of any particular sum for the same.
16.3Electric wheelchair
The cost of this item, according to Ms Jodrell's report of October 1995, would be $7,000, with a need to replace it every six years.
In the same report Ms Jodrell stated:
"At times when Ms Mills' ability to propel is affected by back pain, breathlessness, fatigue or upper limb dysfunction she would benefit from the use of a powered mobility device. At present I would predict that this would be occasional use only, for the period of dysfunction however as Ms Mills ages the frequency of use may increase largely dependent on her spinal orthopaedic status, pain levels and respiratory function."
The defendant denied there was any present need for this item, but in the light of Dr Fong's expressed views accepted that such might be justified from age 50 years.
Senior counsel for the plaintiff submitted that if I came to the view that immediate provision of an electric wheelchair was not warranted I could make a global assessment and allow that instead.
I consider that immediate provision of the item, by purchase and periodical replacement, is not justified on the evidence, and that an appropriate method of assessment would be to provide for the purchase and periodic replacement of an electric wheelchair from age 50 years.
I accept, however, that the plaintiff does have a present need for occasional use of an electric wheelchair, and that need is likely to increase in future years up to age 50 years, so that allowance ought be made both for the periodic hire of such a chair, and also for the contingency that the need to purchase a chair will arise sooner than the age specified.
The allowance for the period to age 50 years should be by way of broad assessment, and I arrive at the sum of $10,000 in respect of it.
In relation to the purchase of an electric wheelchair at age 50 years, or at a point approximately 24 years in the future, the present value of the required sum of $7,000, at that time and every six years thereafter, can be calculated as follows:
Age            Multiplier            Sum
50 yrs            .247                  $1,729
56 yrs            .174                  $1,218
62 yrs            .123                  $   861
68 yrs            .087                  $   609
74 yrs            .054                  $   427
$4,844
The two sums, less a deduction for contingencies, produce an allowance of $14,101.
17.Future vehicle expenses
It is common ground that the plaintiff requires a modified vehicle.
Apart from the provision of hand controls the defendant however said that need could be met by the addition to an ordinary vehicle of a hoist, such to be used in conjunction with a collapsible wheelchair.
Apart from anything else, the very limited extent to which the plaintiff presently drove a vehicle and her lack of enjoyment of the task made anything beyond an allowance based on that unreasonable, the defendant contended.
I do not accept that.
The plaintiff's problems with driving are in my view due largely to the difficulties referred to in the plaintiff being able to transfer in and out of her car, together with the problems that she has in maintaining a stable seating position once the vehicle is underway.
If those problems, in particular the first, are addressed the plaintiff is likely to utilise a motor vehicle to a much greater extent.
A hoist will not provide the plaintiff with the ability to make easy transfers.
I also note that a collapsible wheelchair is not used by the plaintiff.
Prima facie the plaintiff is entitled to compensation for this particular need on the basis of the additional cost and periodic replacement of a vehicle that will permit transfers, together with more secure seating.
The plaintiff called evidence in that regard from Mr Thompson, the managing director of a company which supplies rehabilitation equipment, and a person with a specific interest in transport difficulties for persons with disabilities.
Mr Thompson said that a Chrysler Voyager fitted with a Braun Entervan conversion would be suitable for the plaintiff, whilst the vehicle itself was appropriate.
The vehicle had a lowered and clear floor with an electronic ramp, and could be fitted with a six‑way swivel seat for ease of transfer, with a lock down system for the vacant wheelchair, that being behind the driver, he said.
A specially converted seat could be fitted for a person with a trunk control problem, such as the plaintiff, together with a four point harness, Mr Thompson said.
The base price for the conversion was, he said, approximately $30,000.
In a report to the plaintiff's solicitors Mr Thompson had earlier said that "following the warranty period we expect this equipment to be serviceable for a total of nine years … ".
Mr Thompson was not cross‑examined, and I accept his evidence.
In the light of the plaintiff's disabilities and difficulties the modified Chrysler Voyager vehicle would in my view be appropriate for use by the plaintiff, and an allowance based on the conversion cost relevant to that vehicle would be reasonable in all the circumstances.
The plaintiff says that $10,000 ought be added to the conversion cost, as the plaintiff would not otherwise have required a vehicle of that particular type and cost, that sum being said to represent the difference in cost between the vehicle and a more conventional sedan.
I consider that is reasonable and that sum ought be allowed also.
No claim was put forward on behalf of the plaintiff for any cost associated with the maintenance of the equipment.
The total value of each required sum of $40,000, on the basis of an immediate purchase and replacement every nine years, can be calculated as follows:

Initial Purchase/ Replacement .

Multiplier

Present value

of cost .

Now

$40,000

9^th year

.592

$23,680

18^th year

.350

$14,000

27^th year

.207

$ 8,280

36^th year

.123

$ 4,920

42^nd year

.987

$ 3,480

$94,360

After deduction of a sum for contingencies the allowance under this head is $89,642.
18.Future holiday expenses
I allow the agreed sum of $20,000.
19.Future home alterations expenses
Each party called an architect to give evidence, and it was apparently common ground that there was an Australian standard applicable to the design and construction of a house for a person with disabilities of the kind suffered by the plaintiff, that being AS 1428 parts 1 and 2.
Mr Sankey, who gave evidence for the plaintiff, produced a report which set out a total cost for the provision for the plaintiff of modified housing of $193,490.
That cost was made up in part of the sum of $105,573, that being said to be the difference in cost between the cost per square metre, extended over 220.26 sq m, of a standard project house and the cost of the house specifically designed to conform with AS 1428.1 and 2.
The balance of $66,917 was said to consist of various items, described as additional costs, including air conditioning, architects' fees, additional landscaping, external shade, and additional paving.
Mr Tunbridge, who gave evidence for the defendant, produced a report which provided for additional costs of $64,055.
As to any additional costs associated with the construction of the basic house, Mr Tunbridge said in his report that project houses were in his view of poor quality in this State, so that a fairer benchmark would be an architect designed house.
If, however, a standard project house was used as the benchmark then a further $166,500 should be added to the cost, he stated.
The question is one as to the reasonable cost of meeting a need created by the accident, that being a need for special housing, and in particular that which complies with the relevant standards and provides any other reasonably necessary features.
In my view a comparison with other non‑standard housing is therefore not to the point and I do not accept Mr Tunbridge's approach, based as it apparently is on a subjective lack of satisfaction with the standard project houses that are currently built and then lived in in this community.
I accept the evidence of Mr Sankey, whose estimates were generally either accepted by or less than those of Mr Tunbridge.
The allowance under this head is then $193,490.
20.Future miscellaneous expenses
I allow the agreed sum of $35,000.
21.Future additional miscellaneous items
I allow the sum of $20,000, as agreed.
22.Future emergency monitoring expenses
I allow the sum of $5,894, that being agreed.
23.Future catheters/urological items expenses
I allow the agreed sum of $63,550.
24.General damages
I allow the agreed sum of $200,000.
25.Interest
Interest is claimed on some of the damages sought in the statement of claim, pursuant to the Supreme Court Act 1935 (WA) s 32, at the rate of 6 per cent per annum, for the period between 10 September 1997 and the date of any judgment.
Although the plaintiff's schedule did not pursue that claim there is no reason known to me why interest ought not be allowed, at least on those items of damage not the subject of agreement, and where the law permits an award.
I will, however, hear from the parties in that regard.
The interest rate claimed is in my view reasonable.

In summary:
Past travelling expenses $ 3,060.00
Past medication expenses $ 6,150.00
Past treatment expenses $ 8,533.75
Past miscellaneous expenses $ 15,000.00
Past miscellaneous equipment $ 16,127.00
Future travelling expenses $ 12,250.00
Future medication expenses $ 31,500.00
Future doctor and other medical attendances $ 22,456.00
Future hospital expenses $ 109,066.00
Past gratuitous services $ 87,000.00
Future carer services/domestic assistance $ 530,213.00
Past loss of income and interest $ 115,000.00
Future loss of earning capacity $ 423,984.00
Past loss of superannuation benefits $ 8,500.00
Future loss of superannuation benefits $ 33,565.00
Future wheelchair expenses $ 35,469.00
Future vehicle expenses $ 89,642.00
Future holiday expenses $ 20,000.00
Future home alteration expenses $ 193,490.00
Future miscellaneous expenses $ 35,000.00
Future additional miscellaneous items $ 20,000.00
Future emergency monitoring expenses $ 5,894.00
Future catheters/urological items expenses $ 63,550.00
General damages $ 200,000.00
Interest $……………
$2,085,699.75
The plaintiff is entitled to judgment for 45 per cent of her damage and to seek interest on part of that judgment.

Initial Purchase/ Replacement .	Multiplier	Present value of cost .
Now	$40,000
9^th year	.592	$23,680
18^th year	.350	$14,000
27^th year	.207	$ 8,280
36^th year	.123	$ 4,920
42^nd year	.987	$ 3,480 $94,360