Mulcahy v Gartner - [1999] WADC 33

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL

LOCATION: PERTH

CITATION: MULCAHY -v- GARTNER [1999] WADC 33

CORAM: HH JACKSON DCJ

HEARD: 29, 30 AND 31 MARCH 1999

DELIVERED : 16 AUGUST 1999

FILE NO/S: CIV 2623 of 1997

BETWEEN: CHELSEA MULCAHY
Plaintiff
AND
GRAEME GEORGE GARTNER
Defendant

Catchwords:

Successive motor vehicle accidents - Liability in each - Assessment of damages

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, ss3A-3E

Result:

Liability for first accident established against defendant. Liability for second accident established against defendant caused by the first accident.
Damages assessed in the sum of $75,677.64.

Representation:

Counsel:

Plaintiff: P J Patterson
Defendant: K N Allan

Solicitors:

Plaintiff: Taylor Smart
Defendant: K N Allan

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

Edis v Chouseas, unreported SCt NSW; 40161/95; 26 September 1996
Pyne v Wilkenfeld [1981] 26 SASR 441
Western Australia v Watson [1990] WAR 248
Wieland v Cyril Lord Carpets Ltd (1969) 3 All ER 1006, 1009

Case(s) also cited:

Chouseas v Edis (1997) unreported HCA; No S185 of 1996; 10 April 1997
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158
Haber v Walker [1963] VR 339

HH JACKSON DCJ:
Background

The plaintiff was born on 27 February 1976 and was by occupation a receptionist. In the course of her employment as such she was involved in driving a motor vehicle at the corner of Scarborough Beach Road and King Edward Street Osborne Park on 1 February 1996. The motor vehicle was involved in a collision with a vehicle driven by the defendant. Liability for the collision is in issue.
As a result of the collision the plaintiff suffered injury to her right shoulder and other injuries.
Whilst awaiting a consultation with a specialist in relation to the right shoulder she was involved in a second motor vehicle accident on 2 March 1996 while driving her motor vehicle along the Goomalling-Toodyay Road, Goomalling when she lost control of the vehicle which left the road and rolled over and she suffered further injuries. Liability for this second accident is also in dispute.
The quantum of damages in respect of each accident is also in issue.
The First Accident - Liability
The plaintiff says the first accident was caused by the defendant's negligence, particulars of which are given as -
a)      failing to obey a red traffic signal at the intersection;
b)      failing to keep any or a proper lookout;
c)      travelling at an excessive speed in the circumstances;
d)      failing to apply the brakes or to control, steer or otherwise manoeuvre his motor vehicle so as to avoid colliding with the plaintiff's vehicle;
e)      colliding with the plaintiff's vehicle.
The defendant admits (d) but otherwise denies the particulars of negligence pleaded and further says that the accident was caused or contributed to by the plaintiff's negligence, which is particularised in the amended defence as follows:
"(i)Moved from a stationary position facing south on King Edward Street and into the path of the vehicle being driven by the defendant east on Scarborough Beach Road when she knew or ought to have known that the defendant's vehicle would not stop at a red light against it.
(ii)failed to give way to the defendant's vehicle on her right when she knew or ought to have known that the defendant's vehicle would not stop at a red light against it.
(iii)failed to keep any or any proper lookout.
(iv)failed to take any or any adequate care of her own safety."
By way of further and better particulars in response to a question requiring the defendant to state the matters which give rise to the allegation that the plaintiff knew that the defendant's vehicle would not stop at a red light against him, the defendant provided the further particulars:
"(a)Scarborough Beach Road is a major road.
(b)Prior to the first accident the plaintiff's vehicle was stationary in King Edward Street at the intersection of Scarborough Beach Road with the traffic lights against her.
(c)Prior to entering Scarborough Beach Road the plaintiff had an uninterrupted view along Scarborough Beach Road to her right in the direction from which the defendant was travelling.
(d)The defendant was travelling at such a speed that he could not stop his vehicle at the red light against him.
(e)The defendant's vehicle was travelling at such a speed and in such a manner that it was obvious that it was not going to stop at the red light.
(f)The defendant's vehicle was almost through the intersection when the first accident occurred. "
The same particulars were supplied in respect of a request that the defendant state the matters which give rise to the allegation that the plaintiff ought to have known that the defendant would not stop at a red light against it.
The defendant provided the further particulars as to how the plaintiff should have taken adequate care of her own safety in the circumstances.
"The plaintiff was stationary with a good view of the defendant's oncoming vehicle and ought to have appreciated that he could not have stopped his vehicle at the red light and should not have proceeded into the intersection."
A map of the locality of the first accident tendered by consent is Exhibit 4. A group of five photographs of the same locality are Exhibit 5. The plaintiff's evidence is that she was driving her vehicle south in King Edward Street in the kerb lane and stopped at the intersection with Scarborough Beach Road by reason of the red light.
The plaintiff says she intended to drive directly across the intersection into Selby Street. Her car was first in the line, stationary at the white line. There were vehicles behind hers and to her right. She waited for the traffic lights to turn green in her favour.
"What did you do?" --- When the lights changed to green, I glanced very briefly to the left and the traffic was stopped, and I glanced briefly to the right and there was no vehicles there. There was a car to my right had already gone through - or was in front of me, going through the intersection, and I took off from the lights.
When you said a car, what was the position of the car that had gone in front of you? --- It was in the right-hand lane next to me, and it went through the intersection.
And where were you in relation to that vehicle as you went through the intersection? --- That was in front of me. I don't know whether it went straight into Selby Street North or whether it turned. But I was slightly behind it as we went through the intersection."
She identified the area as that the subject of the photographs, Exhibit 5.
"Did you see any vehicles travelling along Scarborough Beach Road that appeared to be entering the intersection? --- No. There were some stopped to my left, that were travelling west along Scarborough Beach Road, stopped at the lights there, but there was none coming from the west side of Scarborough Beach Road that I saw.
What did you do: --- I proceeded - I just took off from the intersection.
And what happened? --- All of a sudden there was a ute in front of me, and I put my foot on the brake and we collided - sort of the front of the ute and the front of my car. Then when it all stopped, we sort of got dragged sideways a bit, and then when it stopped the tray of the ute was on top of the car, on the bonnet of the car.
Did you apply your brakes prior to the accident? --- Maybe a split second before sort of. I never saw it because I wasn't looking sideways. I was looking basically where I was going. I saw the vehicle when it came basically in front of me, so I put my foot on the brake, but not very long before it hit.
Yes? --- But I did put my foot on the brake.
…
PATTERSON, MR: Where did the vehicle that hit you appear to be travelling from: Are you able to say? --- From like Innaloo side of Scarborough Beach Road.
…
H H JACKSON DCJ: Yes, and travelling in which direction?" --- Travelling east.
…
PATTERSON, MR: And did you - you actually collided - I think you have said you collided with the ute? --- Yes..
Which - whereabouts on the utility did your vehicle strike? --- I think near the front passenger wheel, but I'm not very certain on that.
H H JACKSON DCJ: His front passenger wheel, you mean? --- Yes, with the front of the car I was driving.
So the impact to your vehicle was across the front, was it? --- Yes."
She marked the plan, Exhibit 4, with the point of impact which she described as being in the middle section of the eastern side of the intersection. Her vehicle and the defendant's utility stopped together. Hers ended up still facing Selby Street near the traffic island on the eastern side of the intersection in Scarborough Beach Road.
Cross-examined, the plaintiff agreed she glanced to her left, there was a vehicle stationary in Scarborough Beach Road facing west, glanced right and accelerated away from the lights. There were vehicles stationary to her right in King Edward Street. One travelled ahead of her but she did not know if it went across the intersection or turned. The front of the plaintiff's bonnet collided with the defendant's front passenger side wheel. She did not see the defendant's vehicle, or know which lane it was travelling in or the precise point of impact. Nor did she know how many lanes of traffic she crossed before impact. "I never saw it until it was in front of me and I've got no idea where in the intersection that was" Looking from King Edward Street west along Scarborough Beach Road the land dips.
Re-examined, she explained:
"When you were in King Edward Road, stationary at the lights, you've told my learned friend that you glanced but you never turned your head. Could you just explain what you meant by that? --- I just looked with my eyes, just turned my eyes.
Were you able to look up Scarborough Beach Road? --- Just. There was a car there and I was sitting a little bit further forward I think, but yes."
Mrs A J Reinhardt
Mrs Reinhardt witnessed the collision. She had travelled south on King Edward Street in the centre lane intending to turn right. She stopped one vehicle back from the red light. It was a fine and sunny day. There were two vehicles to her left. She waited for the vehicle in front of her to go through the lights. She approached the stop line and while looking to her right noticed a white utility had entered the intersection "fairly fast and I would say at least 80 kilometres per hour", travelling on Scarborough Beach Road in the third lane from the north. He was entering the intersection. Other vehicles in Scarborough Beach Road were stationary. The car to her left had already entered the intersection. Mrs Reinhardt's vehicle slowly approached the white stop line. When she noticed the utility enter the intersection she braked "but then he hit the lady next to me". The vehicle in front of her had already gone through the intersection. The white utility came to a halt after continuing through the intersection.
Mr Gartner
The defendant gave evidence. He is a roof carpenter who was 32 at trial. At the time of the collision he was a courier driver delivering equipment in a one-ton utility vehicle. He travelled east on Scarborough Beach Road in the far right lane.
"Do you remember - this is before the accident - seeing any other vehicles in the area? --- No, it didn't look to be congested, but I couldn’t say honestly; no. It's a long time ago. I don't remember a lot.
…
In front of you, behind you? --- No there were no vehicles in front of me and I don't think there were any vehicles behind me but I'm unsure of that.
What about at the intersection travelling the same direction as you? Do you remember if there were any there? --- Travelling in the same direction as me?
Yes? --- No, there were no vehicles there.
Do you remember what speed you were travelling at as you approached the intersection? --- As I approached the intersection, no, I don't recall the speed but I have read my statement and I have wrote down 60 kilometres an hour so - - -
Right? --- I couldn't have been doing much more than that because it was only a couple of streets down the road that I pulled out into that right lane.
Can you describe what happened as you came to the intersection? --- … Okay. Well, it's very vague but from what I recall I approached the intersection. I noticed that on approaching that intersection the light had changed to orange - -
ALLAN MR: How far back were you when the light changed to orange? --- No more than 5 metres, couple of car lengths or something - - -
So what did you do? --- Well, I went to brake, to stop but realising I would have stopped in the middle of the intersection I kept on driving through.
Okay? --- It seemed to be the safest thing at the time.
What happened? --- As I got halfway through there, out of the corner of my eye I caught a white car coming out of the corner and then as I moved over a bit, to sort of miss that white car, I spotted another car behind that which hit me and quite surprised me, actually …
Okay. You saw a car coming out from your left, a white car? --- From my left, yes.
Where was it, where was it coming from? --- Yes. Must have been from that turning lane .
…
So it would have been turning - - -? --- Right.
- - - right across the face of you? --- Yes.
…
ALLAN, MR: Did you collide with that car - - -? --- No.
- - - or vehicle? Where did it go? --- It passed behind me, actually.
You said you saw that and then you saw another vehicle? --- From behind; that white vehicle, yes, from behind that vehicle come the one that hit me. I couldn't avoid - - -
What do you mean from behind it? --- Well, I didn't actually see it at the first instance. It was actually as I come around the white one, that one has popped out from behind it. My vision was obstructed.
By the other vehicle? --- By the little white car, yes.
And that hit you - where did the collision occur? --- The collision occurred driver's side - passenger's side door.
Whereabouts on the roadway? --- In the middle of the intersection.
…"
He confirmed that he saw no vehicle cross the intersection from north to south ahead of him. A vehicle did cross behind him narrowly missing him.
Cross-examined he said he had entered Scarborough Beach Road about two streets west of the intersection and was travelling at a speed no more than 60 kilometres per hour. About five metres back from the traffic lights they had turned to orange.
"Doing 60 with the load that I had - I had boxes which were loose in the back. The pipes were tied on. I didn't think that I would stop. If I did stop, I thought that I would probably be in the middle of the intersection."
He was unsure whether the vehicle which collided with his was in the turn right lane,
"… but it seemed to be turning when it hit me; not a great deal, but maybe it swerved to miss me or - I'm unsure where she was going, but it seemed to be both cars coming out around the corner at me."
He did not know which lane it had been in. He said he had been very surprised, on entering the intersection on the amber light, to find the white vehicle already there. He moved slightly to the right. The second blue vehicle "popped out from - after the white one had gone by I had vision and there it was, right there --- I don't recall seeing a blue vehicle sitting at the lights but as I have come past that white one, the blue one was there. It happened very quick".
He marked the point of impact on a street plan: Exhibit 4A.
In Edis v Chouseas, unreported SCt NSW; 40161/95; 26 September 1996, the Court of Appeal of the Supreme Court of New South Wales said, "The existence of a green arrow or a green light in favour of a motorist does not entitle that person to disregard the presence of another person or vehicle in front of them when the motorist knows or should know that a collision is inevitable".
On the facts the Court, however, held the defendant negligent, refusing to apportion liability, a decision which on an application for special leave to appeal, three justices of the High Court of Australia decided was clearly correct: S785/1996 decided on 10 April 1997.
In my view it cannot be said that the plaintiff in the present case either knew, which I accept she did not, or should have known, that a collision was inevitable or indeed of the defendant's vehicle's presence. In my view the defendant entered the intersection at a speed above that he estimates and was clearly travelling against the red light at the time of the impact. The plaintiff had entered on the green light. I think the presence of the defendant's vehicle may well have been obscured in any event. I am not prepared to find negligence against the plaintiff, the onus thereof in the circumstances falling on the defendant.
Quantum - First Accident
The plaintiff lived and attended primary and secondary school in the Trayning and Wyalkatchem areas. She played basketball. When in Year 12 in 1993 she raised her right arm above her shoulder and it dislocated. She had surgery under Mr F M Webb in April 1993, after which the shoulder settled but she no longer played sport. After completing Year 12 at school in 1993 she moved to Perth in 1994 and obtained employment. In 1994 she assisted with the organisation of a junior basketball competition. In late 1994 and early 1995 she worked for Westpac Banking Corporation. In March 1995 she commenced employment as a receptionist with Leasing Services of Western Australia.
In about March 1995 her shoulder again started to dislocate. A general medical practitioner referred her to Mr Peter Hales, who operated in September 1995 to tighten the muscle structure to prevent this occurring. Her evidence is that by December 1995 her shoulder was performing normally and felt totally stable.
She says that the shoulder had stabilised until it was further injured in the first accident.
After the first accident the plaintiff was taken by ambulance to Royal Perth Hospital but after observation was discharged. She said she was very stiff and sore the following day and rested at home. The next day she saw her general medical practitioner, Dr T Silbert. He recommended physiotherapy and then referred the plaintiff to Mr Peter Hales in relation to the right shoulder problem.
Second Accident - Liability.
The plaintiff says that Dr Silbert, having made an appointment for her to see Mr Hales, in early March, she took a Friday off work, rested for the weekend and returned to work. She was due to take two weeks annual leave in the first two weeks of March. On Saturday, 2 March, she drove her Ford Laser vehicle from Perth towards her parents' farm.
"What was the weather like on that day? --- It was clear, sunny, bright, there had been no rain - yes, it was actually a really, really nice day.
And what happened on the trip? --- I was between Toodyay and Goomalling and there was - initially there was a kombivan of sorts in front of me. I overtook that vehicle and about a kilometre further down the road, on a straight patch of road, I was driving along and my shoulder fell out - or subluxed - - -
You state that you passed a vehicle. Can you describe that vehicle? --- I think it was like a kombivan or a van of that sort. It was an older van.
You completed passing that vehicle? --- Yes.
Were you on your side of the road and travelling straight? --- Yes.
What speed were you doing? --- Between 100 and 105.
What was the speed limit? --- 110 kilometres.
Just describe what occurred? --- I was driving along on a straight stretch of road; my shoulder fell out and, when that happens, I lose power in my arm - - -
How were you holding the steering wheel before? --- The 10 to 2 position, and when my shoulder came out I get a sharp pain and until it goes back in, which it does on its own, I lose power momentarily in my arm and, with having an even weight on the steering wheel, when I lost power it pulled my car into the left, into the gravel just slightly, and I touched my foot on the brake and it pulled my car back across the road and then the next thing I remember was lots of broken glass, lots of dust and the sound of metals.
That shoulder problem, that subluxing, had you experienced that between the date of the first accident you described and the second accident? --- Yes.
How many times had that occurred? --- Basically it was once or twice the first day it happened, when the stiffness started going out, becoming more regularly when I lifted my arm above 90 degrees."

Examined-in-chief, she was asked:
"When this accident occurred were you concentrating? --- Yes.
What were you actually doing when the accident occurred? --- I was just driving along the road … you don't get radio reception, so I didn’t even have my radio on. I was just driving along.
Can you explain what happened with the right shoulder? --- I was just sitting in my car, holding my steering wheel at the 10 to 2 position, and I was relaxed but concentrating and it just came out at the bottom. I just lost power in my hand; I got a sharp pain and, for a split second I lost the power in my hand and my shoulder goes back in by itself but - by which time I was already in the gravel, and then I had two hands and I touched the brake and it pulled my car back across the road.
Just explain what actually happens when your shoulder subluxes. What actually happens and what it feels like? --- It feels like basically my arm bone is being - like, just drops, and it's like a dropping sensation, coming out the back of the bottom of my shoulder and it's like my muscles are all being stretched and the nerves - and my hand - all my arm goes pins and needles, sort of a numb feeling, and I've just got no power in it, but it does - it slides straight back in by itself.
Is it associated with pain? ---Yes.
And that description you just gave, is that what happened on 2 March? --- Yes, it is.
…
That's all I can remember but I stopped at the scene. We came back to Perth on the Wednesday after the accident - with my parents and we stopped and we had a look and you could see the tracks in the gravel on the other side of the road, and where I had hit there was a tree stump in the long grass, and where I had hit that the marks led to that and then it - well, I presume it flipped my car but I've got - I don't - - -
So you went right across the double - both carriageways into the bush? --- Into the gravel and the long grass on the other side of the road.
PATTERSON, MR: I think you've given a description to the court of the right - that the subluxation was the right shoulder? --- Yes.
And which way did your vehicle initially move? --- It went to the left, into the gravel on the left.
As soon as that occurred, what did you do? --- I touched my foot on the brake.
What did that cause to - - - ? --- It caused like a grabbing sensation in my car and like my car like pulled across the bitumen on an angle towards the other side of the road, and then I've got no idea what happened after that.
And what is the next thing you remember happening after that --- After it went across the road then there was like the sound of glass breaking, lots of dust in my car. My head was like someone had hit me with a sledge hammer and there was a sound of like my car - or metals going on against bitumen and it sort of all stopped and I was screaming for help."
A series of photographs of the scene is Exhibit 5.
People helped her from the vehicle. Police and ambulance attended and she was taken first to Goomalling Hospital and then to Northam Hospital.
Cross-examined, the plaintiff agreed that she had travelled the road many times, that the road was flat and straight with room for one lane of traffic each way and that she had passed another vehicle about a kilometre previously. She said:
"I was holding the steering wheel in the 10 to 2 position and I was just driving along and my shoulder fell out at the bottom - which if I hold the steering wheel in the same position now, it still does - and when it comes out I get a pain my shoulder and I lost power, momentarily, in my hand until it goes back, which it slips straight out and straight back. When I lost power in my hand - because I was hanging onto the steering wheel - it just pulled my car to the left and I got two wheels into the gravel, by which time I had power back in my right arm again, and I touched my brake and it, like, grabbed - I don't know if it was two wheels on the bitumen or what happened, but it grabbed and pulled my car across the bitumen, like on a diagonal and into the gravel on the other - well, pulled me across and then I don't remember. I mean, I know that it went into the gravel from after things but, at the time, it pulled my car across the road and then I don't remember what happened until broken glass and - - -
Do you say that you went suddenly into the gravel on the left? --- Pretty much so, yes.
Or did you go gradually into the gravel on the left? --- It wasn't like a turn but it pulled across maybe over a period of one or two seconds.
So you're travelling along at 100 to 105 kilometres per hour, I think you said? --- Yes.
100 to 105 - and you moved over a period of a couple of seconds into the gravel on the left? --- Yes. I can't put any exact time on it. I don't know.
So it wasn't a sudden move to the left? --- I lost power in my hand and it did pull across, but when I was in the gravel, like, for a - - -
You didn't suddenly go across, did you; driving along on the bitumen and then you're suddenly in the row? --- Pretty much so. I mean, I lost power in my hand and it pulled my car across.
You didn't lose any power in your left hand, did you? --- No, in my right hand.
No. How did that cause you to move to your left? --- Because I has hanging on with equal pressure, holding the steering wheel straight, and when my right hand lost power my steering wheel pulled down.
Can you explain to me how that could be? --- If you're holding on to the wheel - - -? --- Yes
- - - all you're doing there is holding the wheel and driving straight, aren't you? --- Yes, but I used to hold - - -
You could lose power in both your hands and it wouldn't make any difference to the direction you were travelling, would it? --- But I used to hold the steering wheel reasonably tightly and firmly.
So do you mean to say that when you were holding the steering wheel at 10 o'clock and 2 o'clock you were in fact pulling it downwards with your left hand? --- Well, it was like my arms were sort of relaxed on the steering wheel, so there was like the weight of my arms.
Do you mean to tell me - what sort of vehicle did you drive? --- I had a Ford Laser hatchback.
Was that a modern vehicle? How old was it? It was a 1988.
Is your evidence that the weight of your hand caused you to move to your left? ---- Yes.
Your right hand didn't come off the steering wheel, did it? --- It did momentarily and, like, when my shoulder went back in I grabbed the steering wheel and pulled back on to the road.
…
Did you tell us before that you let go the steering wheel with your right hand? No? --- Not directly, no, I didn't but - - -
No. You've just told us now because you can see that you couldn't have moved to the left if you just simply lost power in your hand, could you? --- But the weight of my arm was balancing from both arms - - -
Right okay? --- - - - and when I lost power and my hand came away from the steering wheel it pulled down just on the weight of my arm - pulled down on my steering wheel.
All right, let's test that one. Are you telling his Honour that when you lost power in your right arm the weight of your arm changed? --- No, that's - - -
…
And you never moved your right hand off the steering wheel at all, did you? --- It did come away from the steering wheel.
…
Your hands were both on the steering wheel, and the weight doesn't change whether you've got power in your arm or not, does it? --- But when my hand came away from the steering wheel it pulled my left hand - having no counterbalance, just pulled it down.
Did you in fact have a dislocation of your right shoulder? --- My shoulder has never dislocated; it subluxes.
Subluxation of your right shoulder? --- Yes, it did and it was - -
And you have always been of that view? --- Yes. That's what happened.
Do you get a pain? --- Yes, I get a pain.
Where's that? --- In through my shoulder joint and down that part of my arm, the outside of my arm.
Isn't it the case that it didn't - or did you ever think your shoulder was going to dislocate? --- Until it actually - I get a pain - as it subluxes I get a pain in it, but I have no forewarning that it's going to happen."
Mr K R McDonald
Mr K R McDonald gave evidence that, on 2 March 1996, he drove a Mazda van on the Toodyay to Goomalling Road at about 90-100 kph. About 15 kilometres from Goomalling a vehicle followed him for about five kilometres, eventually overtaking him.
"Did it speed off or just stay? --- No, no, it wasn't going excessively fast, just passed me normally, and I would say it was within the speed limit. It probably got about a kilometre in front of me; half a kilometre or so. You know, it's hard to remember, but he was well within my vision down the straight road.
Did you notice what happened? --- Yes.
Tell his Honour what happened? --- It veered to the left of the road until it - you know, the left-hand wheels that were driving in the gravel created a fair bit of a dust. I don't know what happened, but it immediately went hard right, crossed almost to the other side of the road and rolled on its side and rolled probably two or three times down the road and finished up on its roof.
Now, prior to the vehicle veering to the left, whereabouts on the roadway was it stationed? --- On the left-hand side of the road.
How far from the edge of the road was it? --- I don't know; just normal. It didn't look to be anything abnormal driving in front of me."
It is a main road with a single lane in each direction, just wide enough for two vehicles to pass.
"When the vehicle veered to the left, are you able to describe in what manner it veered to the left? --- Well, I would say that it more drifted to the left, you know. It just gradually finished up with the left-hand wheels in the gravel and then the driver over-corrected back onto the bitumen but too acute, you know, too ‑ ‑ ‑"
The plaintiff agreed that in a statement made to police dated 2 March 1996 concerning the accident which she signed there was included the sentence "I thought my shoulder was going to dislocate and as this was happening the car began to veer across into the gravel". The police report is not in her handwriting.
Constable T Paini investigated the accident and spoke to the plaintiff but apparently did not take her statement.
She explained that dislocation "is when the shoulder completely comes out of the joint and sublux is when it only partially comes out".
She said she had also told medical staff at Northam Hospital what happened. She said she had told the hospital staff her shoulder had subluxed and that that had caused her to lose control.
The plaintiff denied that she had simply lost concentration, driven into the gravel verge, panicked, over-corrected and lost control.
Ms M J Romasz, a clinical nurse of many years at Northam Hospital, recorded the admission of the plaintiff, Exhibit 8, thus:
"Left road and hit gravel. Car rolled over … No loss of consciousness. Was hanging upside down in car."
She noted grazes and bruises to limbs, abdomen and neck and to the right hip. She said that if it had been explained to her that the accident occurred due to a dislocation or subluxation of the right shoulder she would have recorded it. She made the notes at the bedside with the Goomalling Hospital notes (to which her own notes refer) and she thought likely any ambulance notes. The Goomalling Hospital notes, Exhibit 7, are notated: "Relates to past MVA 2/2/96 - query right shoulder dislocation".
Dr A Boyd, general practitioner, regularly attends patients at Northam Hospital. He noted on 2 March 1996: "gravel; lost control; suspended upside down; belt cut; has complained of neck pain; arm pain." On physical examination he noted right shoulder pain.
Mr Allan argues that the plaintiff has invented the account of the shoulder subluxing. He says the contemporaneous accounts given by the plaintiff did not mention this and that the plaintiff's account of what happened in the second accident is both contrary to the evidence of the following driver, Mr McDonald and to the view of Mr McDonald as to the expected situation concerning shoulder subluxation while driving as the plaintiff describes.
However, it is clear from Mr Hales' report of 7 March 1996, Exhibit 13A, that the account given by the plaintiff in evidence is the account she gave to Mr Hales very soon after the event.
Mr Allan argues that the plaintiff's evidence is not supported by the statement taken by police or by the hospital records. These documents, however, were prepared by others and for other and different purposes. I think Mr Allan has sought to put too much weight on them. Nor is Mr Gilmour's view referred to below about the likelihood of the shoulder subluxing as the plaintiff says it did, conclusive. Other medical evidence supports the proposition that it is not out of the question and Mr Gilmour himself described it only as most unusual.
Then Mr Allan puts it to me that the true cause of the accident was not the vehicle travelling onto the gravel, whatever the cause, but which he attributes to loss of concentration, but the plaintiff's obvious over-correction, perhaps due to panic. I think that is too narrow a view. The cause in a legal sense goes directly to the shoulder subluxation whilst driving.
In respect of the second accident, I am satisfied on the balance of probabilities that the plaintiff had a subluxation or dislocation of the right shoulder, as she says, and as she told others soon after. I am further satisfied that that caused her to briefly lose control of her vehicle, which led directly to the accident. No other cause for the accident is established on the evidence. Nor does the evidence of Mr McDonald show in any way that the plaintiff was driving in any way negligently or erratically. The conditions were not dangerous, nor was her speed. As to the question whether her vehicle drifted slowly off the road surface as opposed to veering sharply off it, I prefer the plaintiff's evidence to that of Mr McDonald, who was by his own estimate, between 500 metres and a kilometre behind.
That raises the question whether the subluxation was caused by the injury received in the first accident. Again, I find for the plaintiff. Whilst I accept the high failure rate of the shoulder surgery involved, I am satisfied that after the surgery performed in 1995 the shoulder had been stable and therefore was likely to remain so for at least 18 months, but that it was injured and rendered unstable by the first accident. The plaintiff had been referred for a further consultation with Mr Hales for which she was waiting when the second accident occurred shortly after. I am satisfied that the first accident materially contributed and thus was the cause of the second.
In Wieland v Cyril Lord Carpets Ltd (1969) 3 All ER 1006, 1009, Eveleigh J said:
"It has long been recognised that injury sustained in one accident may be the cause of subsequent injury. The injury sustained by accident victims on the operating table is an example of that situation. So too are cases of suicide resulting from a mental condition produced by an accident. Pigney v Pointers Transport Services, Ltd (2) [1967] 2 All E.R. 807; [1957] 2 W.L.R. 1121. It is always a question of course for the court in each case to determine whether or not on the facts of that case the accident did cause the second injury or death as the case might be; see Hogan v Bentinck West Hartley Collieries (Owners), Ltd. [1949] 1 All E.R. 588."
That decision was followed by Zelling J in Pyne v Wilkenfeld [1981] 26 SASR 441. In Western Australia v Watson [1990] WAR 248, the Full Court of the Supreme Court affirmed that, "In all negligence cases the test of causation is whether the defendant's breach of duty caused or materially contributed to the plaintiff's injury. A contribution is 'material' if it is shown on the evidence not to have been negligible."
Second Accident - Quantum
After the second accident the plaintiff says she suffered ongoing problems with her right arm, injury to the hip and other soft tissue injuries. She worked with the same employment for a time during 1996 but says the right arm and right hip problems were such that she could not continue. In mid-1997 a surgeon, Mr D Minchin, removed a cystic haematoma from the right hip and that problem resolved. She has returned to employment but the right shoulder disability continues.
The plaintiff says that after the second accident she was suffering bruising to her legs, right hip, both arms and her face, that she had skin burns from the seat belt on her throat, cuts to the feet, that her right arm and shoulder were very swollen and sore with bruising and grazing. She was in Northam Hospital for two days and then rested at her parents' home for two days more. She saw Mr Hales, who ordered further x-rays. She returned to work at the end of her scheduled leave on about 18 March. By then, most of the swelling had gone, save for her hip. Her shoulder continued to sublux and prevented her from doing some tasks such as cleaning and vacuuming, but not her employment. Her hip condition made walking difficult.
She ceased employment with Leasing Services in mid-July 1996. She was asked:
"Prior to mid-July 1996 what problems were you having, what physical problems were you having? --- After the second accident in March where my hip had been swollen and hurt in the accident, it settled down, the majority of the swelling went away, but it never totally went away, and then by probably end of April, beginning of May it started to get sore again. Walking for any distance, sitting or too long, things like that, were starting to get painful and, as walking was part of my job, it was starting to get difficult.
Why was walking part of your job? What things did you do that required walking? --- Part of my job was delivering finance documents into town, into the finance companies, and then picking up settlement cheques and taking them to banks and things like that.
And was there very much walking? --- Some days there was, some days there wasn't. It just depended where I could park and where I had to go.
And were you having trouble with your other duties that you were having to do with Leasing Services? --- I couldn't do the cleaning. I was really struggling to do that, but they had somebody there for a while that was helping out with duties.
How were you mentally coping? --- At the time I was having nightmares, bursting into tears at the drop of a hat. I wasn't coping very well at all.
And were you continuing - this is prior to when you ceased with Leasing Services in July 1996. Were you continuing to receive medical treatment? --- Yes, I was.
Were you taking time off work for medical treatment? --- Yes. I had physio appointments that I was trying to make outside of work hours, but it wasn't always possible.
And how often weekly were you attending the physio? --- Three to four times a week.
Were you taking time off work for that? --- Yes, if I couldn't get appointments … out of work hours or I would go in my lunch break and the physio would take longer than an hour.
…
And why did you leave? --- The situation in the office was there was two directors, another girl and myself, and it was becoming very difficult with the tasks. There was a fair amount of pressure being put on me about taking time off to go to physio, which I could understand, … in such a small office, and mentally … I was starting off my day going through the same intersection that the first accident had occurred in, and I just couldn't cope with that very well."
She wrote a letter of resignation and discussed the matter with one of the firm's directors, Ms Kerr.
Cross-examined, the plaintiff agreed she had not included the reasons for leaving work which she gave in evidence, but said her employers knew it was because of her difficulty in walking very far given her hip condition and her mental difficulties in negotiating the same intersection. She had discussed these with Ms Di Kerr. Ms Kerr did not give evidence. The other partner, Mr Pierce, did give evidence but remembered nothing of these matters.

Her hip continued to be swollen and cause problems and kept bruising. Walking, sitting or staying in one position caused problems which worsened. Her general practitioner, Dr Silbert, referred her to various specialists.
In addition, she had several minor operations to remove foreign bodies from her throat.
She was unemployed for about 12 months until finding receptionist work at the basketball teams Perth Wildcats and WAIS Breakers, initially for an hour each day increasing gradually to full-time employment by December 1997.
In April 1996 Mr Hales performed further shoulder surgery and the plaintiff was off work for seven or eight weeks. She underwent physiotherapy three or four times weekly until late November or early December but the shoulder remained limited in its range of motion and never felt completely stable.
She also underwent surgery to remove foreign material from her throat. She said the shoulder did not further sublux but still never felt totally stable. In January 1997 whilst she was in bed the shoulder subluxed again. In January 1997 it again subluxed. Mr Hales referred her to Mr P Honey, but there was no further surgery. The plaintiff described her shoulder as wobbling around and hurting when raised above 90°, for example, to do her hair, and causing her to lose power and to drop things.
She has consulted a number of specialists and has had persisting problems with subluxations or partial dislocations.
Medical Evidence
The reports of Mr F B Webb dated 22 March 1993, 30 March 1993, 6 April 1993, 26 June 1995 and 29 September 1998 were tendered by consent as Exhibit 1A to E.
Mr P Hales, orthopaedic surgeon, performed an open rotator cuff interval capsular repair to stabilise the plaintiff's shoulder in September 1995. The result was satisfactory and the shoulder stabilised. Reviewed on 26 October 1995 she had no instability and slight restriction of motion. She was due for review again in December but did not keep the appointment. Mr Hales' reports are Exhibit 13A-N
On 7 March 1996 he reported:
"This girl was managing perfectly well and her shoulder was asymptomatic with no feeling of instability until she was involved in a motor vehicle accident one month ago when she struck a car which went through a red light on her right hand side … Since that time she has had episodes of shoulder falling out and on the weekend whilst driving home the shoulder slipped out and she stated that it caused her to hit the gravel and she rolled her car".
Giving evidence he was asked:
"When it subluxes, what happens to … the power in the arm that's hanging from that shoulder? -- Once a joint subluxes - and subluxation means a partial dislocation as distinct from a complete dislocation out of the socket - her joint partially starts to slip and usually the moment that happens there's a pain and normally there's a reflex spasm by the muscles to try and prevent it going further, to keep it in joint.
Which you would feel, I presume, would you? --- Yes. … The patient would feel it.
Then what happens? --- Well, then if they have returned the ball to the socket, concentrically, then there would be a period of pain afterwards and then the shoulder would function as normally again.
What would be roughly the time interval in all that? --- That's a very difficult question to answer because it depends on how frequently it's happening. People who have frequent episodes of subluxation almost do it voluntarily … Other people who, where it happens unsuspectingly and they're not aware - it's not happening frequently can have quite severe pain which might last over some days.
Is the pain associated with any change in things like grip and so on? --- The instant that it happens you can get what we call a psuedoparalysis of the arm, a momentary, what we call a dead-arm syndrome. If the joint subluxes unexpectedly the pain will cause a reflex spasm to try and return the joint and a paralysis distally so that the arm becomes useless for a few seconds."
On 26 April 1996 Mr Hales performed "an open capsular shift using three specialised bone anchors at the front of the socket which is quite an extensive shifting of the whole lining of the socket which is designed to tighten the shoulder both at the front and the back and inferiorly."
He certified her unfit for work for 10 weeks and the plaintiff was to perform some exercise programmes. Initially he thought she would return to work in June, avoiding driving for a period and seeing whether a formal physiotherapy programme was warranted.
In late July her shoulder was making good progress with some weakness overhead but minimal discomfort and no subjective feelings of instability. Mr Hales commented, "She is certainly fit for normal work duties as a receptionist but I understand is looking for work in sports administration …"
However, the plaintiff's discomfort increased. She underwent physiotherapy for a period and had minor throat surgery. Mr Hales later reported:
"At the time of review of October '96 the patient indicated that she had recently wrenched the shoulder driving a car on a property, but at the examination at that time as of the report of the 28th of October indicated that I couldn't demonstrate any laxity or subluxation in any direction in the shoulder."
Mr Hales assessed her in December 1996 as suffering "some residual disability … with some ongoing discomfort and restriction of full motion and would assess this as being a 10% loss of function in the right arm as a whole …".
In February 1997 Mr Hales reported that the plaintiff had developed further instability in the shoulder. The plaintiff was referred to Mr A Skirving and Mr P Honey and laser shrinking of the capsule was discussed. In October 1997 Mr Hales reported to the plaintiff's solicitors:
"Her current complaints are of instability overhead, a feeling of coldness and pins and needles in the hand and arm when she bends down and reaches away from the body and basically I think this is when the arm is in an abducted position. She finds it also painful to sleep on the shoulder and at this time and also during the day has feelings that the shoulder is slipping around in the socket but is not frankly dislocating. She also complains of global weakness of the arm.
She still is able to voluntarily inferiorly sublux this shoulder when lying on her back.
She is taking no medication.
On examination she has 170 degrees of overhead motion, there is internal rotation to the low lumbar spine and external rotation of 30 degrees suggesting that there is quite a deal of capsular tightness both anteriorly and antero-superiorly, but she is still able to sublux the shoulder inferiorly, suggesting the major deficit is in the antero-inferior and inferior capsule and the postero-superior capsule.
There was global weakness to static testing.
Overall this girl's condition is fairly static now. There is no doubt that she has a lingering permanent instability problem in certain parts of her capsule but in other areas there certainly has been some success in the surgical tightening procedures.
As this patient has not elected to undertake any further active treatment, I believe that her condition should now be regarded as static. I believe she has been left with a permanent residual disability due to persistent instability of her shoulder and I would assess this as being a 30% loss of function in the right arm as a whole. I believe this lady is fit for full time office work, working with this arm mainly below the horizontal I believe she will always have weakness and difficulty with heavy work and working with the arm overhead."
He regarded further surgery and laser capsulorhapy as possible. Overall, the prognosis was for slow improvement. In October 1998 he added:
The dislocation of the shoulder certainly does result in significant loss of power in the right arm and hand as a whole due to pain. …
Certainly there is no doubt that this girl's current disability is significantly related to her pre-existing laxity disorder. The results of plication surgery in such lax shoulders certainly have a significant failure rate but it is difficult to know in this individual situation as to what the impact the two further traumas had in the post-operative course of this particular lass's shoulder, in other words the recurrence of further instability.
One could suggest in fact that the pre-existing ligamentous laxity was the major mitigating factor and although the incidence of trauma that occurred were bad luck, it was perhaps inevitable that the repairs might have stretched with the passage of time.
It is interesting now at the end of the day that the shoulder seems to have settled out to a reasonable position where although there is still some persistent laxity, the patient is able to cope with this."
He was asked in evidence:
"After the first operation, you have told us that it was a satisfactory outcome. Does that mean it wouldn't have subluxed or dislocated of its own volition again? --- No.
…
In your view, is there a probability that she may have remained stable without being involved in the motor vehicle accident? --- I believe it's unlikely.
H H JACKSON DCJ: Is that a long-term or a short-term prognosis? --- Most of the orthopaedic literature is usually up to about 18 months to 2 years. So it would be - to be generous, I would say something over that period of time.
…
PATTERSON, MR: But you do, I understand from what you're saying in your report of 7 March 96, recognise or you seem to be saying here that you think that once again she has stretched her posterior capsular and you seem to be associating that with the motor vehicle accident? --- I believe a trauma did occur in the motor vehicle accident.
Perhaps this is the way to deal with it: if you do have the literature and there is a percentage of people whose operations fail, what is the percentage there? --- In the literature that I have researched for this particular situation, the failure rate after redo surgery - and you must remember that this girl had already had a previous operation - and the recurrence rate of redo surgery for multidirectional instability is anywhere between 50 and 70 per cent in various reports in the literature. So it is quite high.
That's after the second or subsequent - - -? --- After the subsequent surgeries, yes.
H H JACKSON DCJ: That presumably is a reason why she has - you have probably told her something along those lines and she has taken that on board.
PATTERSON, MR: I believe so.
In your report of 2 October 1998 you state that she currently has a persisting lux shoulder. What type of disability would that leave her with? --- Mainly with an apprehension of use above the horizontal.
Mr W N Gilmour, orthopaedic surgeon, was asked by Mr Webb to express an opinion concerning the plaintiff's right shoulder treatment in April 1993. He later reported:
"When Chelsea presented in April 1993 she told me that she had twisted the right shoulder some eighteen months prior to this when lying on a lounge and it was painful for two days and then cleared up. She was playing basketball and archery at this time without any trouble then three weeks prior to the date she was lying on the ground and relaxed and the right shoulder dislocated and went in again. She noticed now that whenever she lifted the arm it would clunk in and out with the greatest of ease. She also told me that I had seen her at Kununoppin with ankle instability some time prior to this …
On clinical examination of the right shoulder, it was evident that there was marked laxity and that it dislocated quite freely anteriorly and inferiorly. I suggested to her then that eventually she would choose to have this stabilised and I could not see it correcting itself."
He saw her next in November 1996:
"When I saw Chelsea on the 4th November 1996 she told me that she had undergone three operations to the shoulder. One was carried out by Mr Webb and two by Mr Peter Hales. I do not know the exact dates of these operations. She also gave a history that in March 1996 she was involved in a motor vehicle accident where the car rolled and she sustained a posterior dislocation as a result of this accident. In the collision she also injured her right hip which bent the door of the car and this hip was very painful and was also swollen after this happening.
Chelsea informed me that she continued to have right hip pain and it was this pain which was the cause of this specific visit to me. She had had some injections into the muscles which would give her some improvement but this would only last for about four days. She says the pain was around the hip and it would go into her back. She told me that her walking was limited and that she would experience pain when lying in bed. She could not lie on the right side. There was no history of any back pain.
Clinically on that occasion I noted that there was a limp on walking and she was very tender along the iliac crest. She refers the pain to this area more than the hip joint itself. The hip movement was quite normal and on neurological examination I could not find any abnormality. I could not find anything to suggest any back dysfunction.
The bone scan did show a slightly increased uptake around the right iliac crest which was the area of the tenderness. I asked Dr Breidahl to try and image this with an ultrasound and MRI and he could not reveal any local pathology. Ultrasound did show a sizeable mid line cyst in the abdomen …
… In the shoulder there was a dislocation at the time but she also had dislocated a number of times before this and it was an extremely lax shoulder joint. I would have to say that I do not believe that the accident itself altered the pathology to any degree in the shoulder joint.
The right hip pain appears to have been a direct result of the accident. I can only interpret this as a result of some local muscle injury and perhaps bone injury. I feel that it should gradually settle with time and I cannot see any major disturbance in the area."
He reviewed the plaintiff again in February 1999:
"In looking at Chelsea's history, the points of particular significance I believe are as follows:
1.   Her right shoulder had dislocated regularly and frequently before she had an operation.
2.   The first operation had not stopped her shoulder from dislocating.
3.   After the second operation by Mr Hales she felt the shoulder was stable and this covered a period from September 1995 to February 1996 when she had her first motor vehicle accident. In this accident she was holding the wheel of the car and the force of the impact was taken through both arms and it would appear that the right shoulder was forced backwards. In this accident she also had 2 black eyes which would suggest that she hit her head on the steering wheel and she had some neck and back soreness.
4.   The second motor vehicle accident occurred in March 1996 when she was driving in the country and as she was driving she felt her right shoulder to dislocate. This caused the car to swerve to the left and then to the right and it rolled twice. She hurt her right hip in this accident.
5.   In April 1996 she had a second operation carried out by Mr Hales. She felt good for a period, probably until February 1997 and the shoulder then started to dislocate again and occurred spontaneously and without any injury. It has become progressively loose since then.
HER PRESENT CONDITION
In relation to the right shoulder, Chelsea tells me that it dislocates quite readily. This occurs when dressing and when brushing her hair. It feels very loose and is sometimes painful. She avoids in particular, the movement of abduction and lateral rotation. She is always able to reduce the shoulder. Basically it is not painful except when it is dislocating.
The neck pain which was present earlier has disappeared and likewise her back pain has cleared up.
There were some neck burns from the seat belt and evidently foreign bodies were included under the skin. These were removed by Mr Hansen. She has a scar in the front of her neck but this is not a great problem to her.
The right hip problem … she did eventually have an operation carried out by Mr Minchin where a cyst was found in the muscles over the iliac crest and he felt this was secondary to a haematoma in the area. The pain improved in this area after the operation … and … it is now only painful if she is very active. She says it does not stop her doing very much. She feels it would impair her if she were to do a marathon and it is just a discomfort.
CLINICAL EXAMINATION
On clinical examination the right shoulder feels very lax both inferiorly and anteriorly and she protects the movement of abduction very much.
In the right hip and pelvic region she has a small scar. She is not tender in the area and has a full range of hip movement.
In the neck there is a full range of movement. There is a scar anteriorly. She does not complain of any problem when swallowing.
DIAGNOSIS & ASSESSMENT
In relation to the neck and back injuries, these appear to have been mainly to the soft tissues and they have cleared up. She is left with a scar in the anterior portion of the neck but this is in the skin fold and is essentially hidden.
The injury to the right hip was to the soft tissues and a cystic haematoma that developed has been eradicated and she does not have any permanent disability in this area.
I would guess that the area of contention is in the right shoulder and a decision will need to be made firstly on whether the shoulder would have been normal today if she had not had the first accident and secondly, whether the second accident was a direct result of the dislocation. On the one hand it must be understood that this type of shoulder is very difficult to correct from recurrent dislocation and once one operation has been unsuccessful, a second and third operation are equally unsuccessful. I believe her decision today not to have a further operation is the correct one. On the other hand, she does say that the shoulder felt very good from September 1995 after the second repair and up to the first accident in February 1996. It must be recorded that after the second operation by Mr Hales in April 1996 there was a period until February 1997 when it started dislocating spontaneously again. In consideration of all these facts, I feel it is reasonable to conclude that the reason why she is dislocating today is partially to do with the fact that she does have this inherent laxity of her right shoulder and partially due to the fact that she did have this accident that caused a dislocation when the shoulder was feeling quite stable.
Finally, you have asked me the question of incapacity and it is quite disabling to have a shoulder that dislocates. The extent of this disability depends very much on the type of work which a person undertakes. To do clerical work and not to be placed in a position where one has to take the arm above shoulder level, is not very disabling but any other occupation where the arm would have to be used in a position above shoulder level would be totally beyond her. Sporting activities would be totally impossible and she does not play any sport but does work as a sports trainer."
Giving oral evidence, Mr Gilmour estimated the chance of surgery to the plaintiff's shoulder succeeding permanently "… at about 10 to 20 per cent. Temporary relief, six to 12 months, … something in the order of, say 50 per cent, no effect at all, the rest."
He also added that to dislocate the shoulder driving a vehicle in the way described by the plaintiff in respect to the second a accident was very unusual. However, if it occurred there would be some pain and loss of control. The real problem with the plaintiff's condition usually is with the arm at shoulder level or higher. The subluxation is spontaneous and often when the person is relaxed.
The reports of Mr S Brash, orthopaedic surgeon, dated 6 May 1997 and 27 May 1997 were tendered by consent: Exhibit 19A-C. Mr Brash agreed that the value of further shoulder surgery is questionable.

Mr Hales had recommended no further surgery at that stage. However, Dr Minchin had undertaken a haematoma removal from the anterior portion of her right hip.
"She states that subsequent to this operation there has been a great improvement in the degree of pain from the anterior aspect of her right hip, however, pain in the posterior aspect and associated lower back regions continues.
Ms Mulcahy states that she is able to walk around a shopping centre for example, for up to forty minutes, however, after this stage she finds her right hip pain becomes significant enough for her to want to rest.
She states that she still has difficulties performing moderately heavy household tasks as a result of her hip and shoulder symptoms.
At this stage treatment is self directed, with Ms Mulcahy having the option to return to her Rheumatologist Dr Ken McGuire, should her symptoms worsen and likewise return to the physiotherapist should this occur. …
Ms Mulcahy remains partially incapacitated for employment in that she would be unable to perform any tasks heavier than the light office work which she is now doing.
She states that on occasion where she is asked to work a full week (ie five days x eight hours daily), she is able to cope with her work duties though is significantly more tired and would be unable to socialise after work.
She would, on this basis, be thus able to perform full-time duties in a light capacity at this stage.
I expect that her ability to cope with heavier duties, should they arise, may increase over the next six to twelve months."
On 19 December 1997 she presented complaining of occasional right hip pain. Tenderness was noted on the inferior margin of the scar, and Panadol was prescribed for analgesia.
On 26 August 1998 she presented complaining of painful keloid scarring resulting from the laceration to her throat sustained in the motor vehicle accident of the 2 March 1996. She was referred to a plastic surgeon, Mr Mathew Hanson, for review, with his opinion being that it may be worthwhile revising her scar and removing what he feels may be a deeply seated foreign body persistent in her scar line.
In October 1998 Dr Silbert reported:
"Ms Mulcahy describes no improvement in the condition of her right shoulder, she notes a clunking subluxation of her right shoulder with any movements involving elevation of the shoulder (such as brushing her hair or hanging out washing). With respect to pain, she describes aching should she have slept with her shoulder elevated and finds that she avoids any tasks involving repetitive right shoulder duties particularly when she moves her arms to an overhead position.
With respect to the symptoms referable to her right hip, Ms Mulcahy has somewhat improved since my last letter.
She describes continuing right hip ache should she walk for longer than approximately two hours (as she did recently at the Perth Royal Show) but otherwise is untroubled by left hip symptoms.
With respect to the throat laceration, Ms Mulcahy is scheduled for a revision of her scar and exploration of the wound on the 2 November 1998 by Mr Mathew Hanson .
…
In terms of ongoing surgical treatments, formal Physiotherapy, and formal Rehabilitation, Ms Mulcahy has not undergone any treatment since my letter of the 22 October 1997. She states that she has taken occasional Panadol tablets to relieve her pain especially from her right shoulder, but has taken no other medications.
…
Ms Mulclahy will suffer some degree of permanent residual disability, however I am not qualified to put a percentage figure on this.
Her residual disability will relate to shoulder pain and inability to repetitively abduct her right shoulder, as well as mild right hip ache and possibly, should the revision of her scar not relieve her symptoms a hundred percent, some symptoms referable to her throat laceration.
…
Ms Mulcahy has been working full time in her position of a Receptionist since February of this year. Prior to this, since December 1997, she had been working as a front of house manager for a production company, and prior to that had been working part time with the Perth Wildcats basketball team. She is not incapacitated for her normal duties as a Receptionist though should her duties involve repetitive overhead tasks I would class her as being incapacitated for that part of her employment."
Dr K Maguire, a rheumatology and sports medicine specialist, first saw the plaintiff on 29 August 1996 and last on 17 March 1997. His concern was with her hip and pelvis areas. The information given to him by her, her general practitioner and physiotherapist was that she had had to leave her employment because of her hip and buttock problems. She had difficulty even with sitting, moving her hip and walking. Injection improved her mobility but it was not sustained.
The reports of Dr A Marsden dated 14 June 1996 and 5 May 1997 also were tendered by consent: Exhibit 20A-B. In his report of 5 May 1997 Dr Marsden reported:
"She said that she did return to work, and undertook the reception duties, did not drive initially but undertook the full reception duties. She said that she worked until the 12 July 1996 when she decided to hand in her notice and resign from the company. She said that she had problems with her right hip and 'could not cope with the walking involved'.
I note that in my report dated the 14 June 1996 there is no mention of any significant or indeed any hip problem whatsoever, arising out of motor vehicle accident. I note that when perusing through the documentation there is a statement raised by Chelsea Mulcahy in April 19967 and in paragraph 24 she has noted that after the second motor vehicle accident 'her right hip was very swollen'. This is the only mention that I can find up to June 1996 of any problems associated with her right hip, either in my own notes, which were clearly comprehensive, and in the letters and reports raised by other medical practitioners up until this time. It would be worthwhile obtaining hospital notes to identify any reported hip issues.
…
She said that she still has problems with sitting for greater than 20 minutes and has difficulties wearing high heeled shoes. She said that she has pain in the right hip posteriorly and in the area between the greater trochanter and the iliac crest. She said that he has had 'bruising coming out' in this area.
…
In her right hip she had a full range of movements with no hesitation and no reported discomfort. There was no palpable crepitus and no evidence of any formal bruising. She had quite marked abdominal and hip striae in the skin from her simple overweight.
She was tender over the right posterior greater trochanteric area and this was apparently exquisitely tender over the greater trochanteric bursitis posteriorly.
…
She has a problem with right greater trochanteric bursitis, but I am not convinced that this is associated with either of the motor vehicle accidents and I note that there has been no mention of hip problems whatsoever to me, despite … comprehensive questioning of her status in June 1996 and I do not believe that it is reasonable to consider that her bursitis problem now is associated with either motor vehicle accident.
In terms of the direct effects of the first, and compensible motor vehicle accident, I understand that a 10% loss of efficient function of the right arm has been assessed and negotiation is under way to settle the claim on that basis. This is a generous assessment in terms of the direct effects of either of the motor vehicle accidents, particularly in view of her significant pre-existing history of repeated problems with her right shoulder, but it would clearly be helpful to settle the claim.
In August 1996 a lump and swelling in the neck were explored by Dr Silbert under local anaesthetic and some days later some foreign material was removed from the area by Dr G Reynolds. The report of Dr E Reynolds, general practitioner, dated 19 February 1998 was tendered by consent as Exhibit 2. The wound healed well but later the scar thickened and became sensitive. Mr M Hansen recommended and later performed further surgery. The report of Mr M Hansen, plastic surgeon, dated 30 September 1998 was tendered by consent as Exhibit 3.
Mr T J Berrigan, a specialist in anaesthesia and pain management, first treated the plaintiff in February 1997 on referral from Dr Ken Maguire for right sacroiliac crest pain. His reports are Exhibit 10A-CC.
"She told me that this second accident happened because as she was driving her shoulder dislocated and she lost control of the car and it rolled. Her right hip area hit the door forcibly enough to dent it and she had swelling for about six weeks. She had increased pain and by July she could not walk, sit or stand for prolonged periods. The pain is also made worse by activities such as sweeping, vacuuming and hanging out washing. She said she has had to leave her job because of the pain problem.
… "
On 10 June 1997 he reported that the plaintiff continued to have pain from what he thought to be a resolving haematoma. He had referred her to Dr D Minchin for excision in July. He thought the accident probably caused bleeding into the tissues and also fat necrosis.
Dr D E Minchin's evidence is that the most likely cause of the cyst he removed was trauma. It was quite small. He said he would have expected the patient to notice symptoms within a week or two. He was unable to say if it was the result of either accident but it was, it seems, located consistently with the plaintiff's injuries and other problems may have masked it symptoms for a period.
Mr Allan argues that the hip problem is not shown to have resulted from the second accident. Dr Silbert's evidence is that the plaintiff did not complain to him of the matter until 31 July 1996. However, in light of the injuries in the second accident and Dr Minchin's evidence I find otherwise on the balance of probabilities.
Mr D Ryder, clinical psychologist, saw the plaintiff three times in June 1996. His report is Exhibit 16:
"Her presenting psychological concerns at interview were of reduced independent and mobility due to her physical injuries. She reported that she had had to move in with her parents, refrain from playing basketball and had to rely on others for transport. She also reported experiencing nightmares where she recalled much of the second accident, and had a particularly vivid sense of smell of the dust. In the five weeks immediately after the accident she reported experiencing these nightmares 6 or 7 times a weeks but by the time I saw her the frequency had reduced to approximately 2 to 3 times per week. While still unpleasant, the nightmares were no longer as intense as they had been immediately after the accident. During the initial interview with myself she became tearful at times and also reported blaming herself for some of the health problems her mother was experiencing."
Her anxiety, mild depression and nocturnal disturbance were consistent with trauma and reduced mobility and increased dependence resulting from her injuries. By 22 June 1996 the issues had virtually resolved.
General Damages
I found the plaintiff to be an honest and accurate witness.
The plaintiff's claims are in each case subject to the provisions of s3A to 3E. of the Motor Vehicle (Third Party Insurance) Act 1943.
The plaintiff says that the second accident was directly caused by the first. (The defendant of course, was not personally involved in the second in any other sense.) If that is so, the effect of ss3A to 3E of the Motor Vehicle (Third Party Insurance) Act 1943 is confined to a single assessment.
The plaintiff argues that I should adopt the approach of assessing a global amount in respect of the total injuries and losses resulting from the two accidents, regarding this as all flowing from the defendant's negligence in the first accident. On that basis the plaintiff says that no question arises as to the effect of ss3A to 3I of the Motor Vehicle (Third Party Insurance) Act 1943) in relation to the second accident. Whilst I agree with the first of these propositions I think it prudent to make separate assessments given my findings on liability.
Her hip problem is essentially resolved although it aches after she walks "too far".
He shoulder problem remains. Hanging out washing, sweeping, vacuuming, mopping and other actions which require reaching forward and lifting objects over her head cause the shoulder to "go in and out".
Allowing an award for the throat surgery and for the scarring, for the whiplash and hip problems until these were resolved, and for the damage to the shoulder, but in that regard discounting heavily for the likely short or medium failure of the shoulder after repetitive surgery in any event, and applying the statutory requirements of Section 3C(2), I assess general damages fore the first accident at $25,000 and for the second accident at $20,000. Given my view that a total assessment should be made arising from one cause, I then reach an award of $45,000, s3C(6) not being applicable.
Past Economic Loss
The plaintiff claims 51 weeks loss of income between resigning from Leasing Services and commencing work with WAIS Breakers. At $288.39 net per week that amounts to $14,707.89. Mr H J Pierce, managing director of Leasing Services of Western Australia, confirmed the plaintiff's employment with the firm from 15 May 1995, her wages of $500.20 net per fortnight increasing to $579 net per fortnight and duties as a receptionist.
After the accident she took seven days off work on sick leave. At the time of the second accident the plaintiff had holidays from 5 to 19 March 1996. She took those then was on worker's compensation until 17 April. She was then off work until 7 June. The accounts to the worker's compensation insurer totalling $2,777.60 are Exhibits 17A and B. Given my findings on liability worker's compensation payments of $2,777.60 must be allowed to the plaintiff in respect of the first accident. The plaintiff had resigned on 1 July 1996 effective from 12 July. His business partner had then spoken to her. They had been happy to keep her on and tried to persuade her to stay. She was by then working quite satisfactorily on full duties.
After the plaintiff's resignation on 12 July 1997, Mr Allan argues, the plaintiff remained fit for work, neither her hip nor her psychological condition preventing her form doing so. He refers to the evidence of Mr Pierce and the failure to call Ms Kerr.
A bundle of the plaintiff's tax returns for the years ending 30 June 1994 to 30 June 1998 is Exhibit 9. At trial she was in full-time employment earning $916.60 gross per fortnight.
The plaintiff's gross and net income in the taxation years from 1994 to 1998 seems to have been:
Year ending          30.06.94     1995          1996          1997       1998
Gross                  $2,354     $10,225     $13,329     $10,375 $15,187
Net  $2,354     $ 8,862     $11,412     $ 9,347 $13,002
or thereabouts. However, as Mr Allan pointed out, where the plaintiff worked for only part of a year adjustments must be made to the income tax rates which would be payable for a full year.
No evidence was given or claim made in respect of superannuation benefits or interest.
I assess past economic loss in the sum of $10,000.
Future Economic Loss
I accept that the plaintiff's shoulder condition limits her in both work and privately. The plaintiff, however, has not established any claim for loss of future earnings attributable to the accidents. She is in full time work and can remain so. Given the medical evidence, in any event the pre-accident condition would be expected by now to have re-occurred.
Future Medical Expenses
For the same reasons, I do not allow any amount under this head. I any event, I regard future treatment as unlikely, let alone attributable mainly to the accidents.
Special Damages
In all, special damages by way of medical expenses of $20,677.64 were paid on behalf of the plaintiff. Of these $11,537.59 related to the first accident: see Exhibit 12 and the evidence of Mr Brown. Liability was declined in respect of the hip injury, it seems, although some accounts may have related thereto.
Given my findings special damages of $9,140.05 are allowed in respect of medical expenses relating to the second accident.
Conclusions
For the foregoing reasons, I assess damages as follows:
First Accident

General Damages

$45,000.00

Past economic loss

10,000.00

Special damages

20,677.64

Total

$75,677.64

General Damages	$45,000.00
Past economic loss	10,000.00
Special damages	20,677.64
Total	$75,677.64