Robertson v Chase - [2012] WADC 131

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ROBERTSON -v- CHASE [2012] WADC 131

CORAM: STAUDE DCJ

HEARD: 27-30 JUNE 2012

DELIVERED : 24 AUGUST 2012

FILE NO/S: CIV 65 of 2010

BETWEEN: MICHELLE ROBERTSON
Plaintiff
AND
HAYDEN CHASE
Defendant

Catchwords:

Tort - Personal injuries - Motor vehicle crash - Liability for negligence - Apportionment of liability - Soft tissue injuries - Assessment of damages

Practice and procedure - Amendment of defence at trial to withdraw admission of negligence

Legislation:

Civil Liability Act 2004
Motor Vehicle (Third Party Insurance) Act 1943
Road Traffic Code 2000

Result:

Judgment for plaintiff
Damages reduced by 25% for contributory negligence
Damages assessed

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr P E Jarman

Solicitors:

Plaintiff: Bradford & Co
Defendant: Jarman McKenna

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

Eric Preston Pty Ltd v Euroz Securities Ltd [2011] FCAFC 11
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Hutton v Meston [2004] WASCA 178
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 62 ALR 85
Paul v Rendell (1981) 55 ALJR 371
Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Pollock v Wellington (1996) 15 WAR 1
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424
Strong v Woolworths Ltd [2012] HCA 5
Tweed v Shepherd [2008] WASCA 59
Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wynbergen v Hoyts Corp Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65

STAUDE DCJ:

Introduction

The plaintiff claims damages for personal injury suffered as a result of a motor vehicle crash in which she was involved on 27 November 2007 at the intersection of Gordon Road and Lakes Road, Greenfields. The plaintiff was driving a sedan east on Gordon Road when it collided in a side‑swiping manner with a prime‑mover and trailer driven by the defendant in the same direction.

Issues − Liability

The statement of claim alleges that the plaintiff was approaching a point where the two lanes of Gordon Road merge into one when the defendant's truck approached her vehicle from the left and behind. The defendant's truck did not slow down or give way to the plaintiff's vehicle and collided with it. Other than the collision and the location these facts were denied on the defence. No other factual scenario was pleaded.
The statement of claim alleges that the collision was caused by the negligence of the defendant, particularised as follows:
The defendant was negligent by:
3.1Failing to give way to the plaintiff's vehicle;
3.2Failing to slow down, sound the horn or swerve to otherwise avoid a collision with the vehicle;
3.3Failing to apply his brakes timeously or at all;
3.4Failing to keep any proper lookout for the plaintiff's vehicle;
3.5Failing to take evasive action to avoid any collision with the vehicle;
3.6Failing to merge lanes in accordance with road signage requiring road users to do so;
3.7Erroneously assuming that the plaintiff intended to turn right at Lakes Road, Greenfields when the plaintiff had not indicated any intention to do so.
The defence, as originally pleaded, admitted that the defendant was negligent, but did not admit any of the particulars of negligence. Further, the defence alleged that the collision was caused by or contributed to by the negligence of the plaintiff, particularised as follows:
The plaintiff was negligent in that she:
(a)failed to give way to the defendant's vehicle;
(b)failed to slow down, sound her horn or swerve her vehicle to otherwise avoid a collision with the defendant's truck;
(c)failed to apply her brakes timeously or at all;
(d)failed to keep any proper lookout for the defendant's vehicle;
(e)failed to take evasive action to avoid any collision with the defendant's truck;
(f)failed to merge lanes in accordance with road signage requiring road users to do so; and
(g)failed to exercise the reasonable care and skill of a prudent driver when merging.
In the defendant's written opening submissions filed prior to trial, the defendant, notwithstanding the admission of negligent driving, submitted that he was not negligent at all, or, if he were, only to a very minor degree, indicating that he would seek leave to withdraw the admission. The defendant's position was that his vehicle was at all material times to the left of and in front of the plaintiff's vehicle and that he therefore had right of way when merging. At the commencement of the trial, counsel for the defendant duly moved to amend the defence simply to delete the admission of negligence and deny the allegations of negligent driving.
Before ruling on the application, I required an affidavit to be lodged in accordance with r 48A of the District Court Rules 2005. This rule modifies O 21 of the Rules of the Supreme Court 1971 so as to provide that if an application to amend a pleading is filed after a case is listed for trial, the application must be accompanied by an affidavit of the party making the application or the lawyer representing that party and must set out the facts that have arisen since the party's r 43(3a) certificate was tendered and the grounds for the amendment.
In his affidavit sworn 28 June 2010, Mr Jarman stated that his firm was instructed by the Insurance Commission of Western Australia to act for the defendant in February 2010. He did not become involved in the conduct of the defence until 14 June 2010 when he was briefed to appear as counsel. At that time he undertook a review of the pleadings, evidence and correspondence and considered the legal basis for the defendant's admission of liability. He formed the view, following his meeting with the defendant on 25 June 2010, that 'his manner of driving was not negligent and was not the cause of the motor vehicle accident the subject of the trial'. (Mr Jarman submitted that it came down to 'a different set of eyes'.) On that basis he submitted a proposed amended defence to the plaintiff's solicitors.
Mr Jarman had discussed the basis of the original admission of negligence with a solicitor from his office who had drafted the defence. He was informed that the solicitor was of the understanding that although negligence was admitted, it would be open for a court, upon an apportionment of liability, to find the plaintiff wholly responsible. According to Mr Jarman, this view was shared by a partner of the firm who, at one stage, was to do the trial. Mr Jarman's affidavit did not otherwise disclose on what basis the admission of negligence was made. It was not his evidence that that the admission was a mistake, though clearly it was, because a plaintiff's damages cannot be reduced by 100% for contributory negligence: Wynbergen v Hoyts Corp Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65. Mr Jarman otherwise submitted that there was no prejudice to the plaintiff likely to be caused by the withdrawal of the admission.
Mr Bradford on behalf of the plaintiff indicated with commendable candour that the amendment of the defence would not cause any alteration to the manner in which he proposed to conduct the plaintiff's case. The prejudice to the plaintiff, in his submission, was that the admission of negligence on behalf of the defendant at an early stage gave the plaintiff cause to believe that her action for damages would be successful, at least to the extent to which the defendant was found to be responsible for the collision upon an apportionment of liability. That form of prejudice, as the defendant conceded, can be remedied by an award of costs.
It goes without saying that the substantial amendment of a party's pleading to withdraw an admission as fundamental as an admission of negligence is not to be entertained lightly. That is particularly so where the amendment is sought at trial. The rules of civil procedure in this court operate to discourage an alteration of a party's pleaded position following entry for trial. Nevertheless, the discretion to permit an amendment is unfettered.
The principles governing the exercise of the discretion where a party seeks to withdraw an admission are summarised in Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212 [19]. Good cause must be shown. The ultimate question must always be what is in the interests of justice in the circumstances of the case. As to the relevant considerations, see also Hutton v Meston [2004] WASCA 178 [25].
Although on the basis of Mr Jarman's affidavit and submissions I was reluctant to do so, I allowed the application for the following reasons.
First, the amendment would cause no real prejudice to the plaintiff's case. The facts of the collision were always in issue and the issue of liability live, at least to the extent of contributory negligence. The same evidence would be given.
Second, in the context of the factual issues joined in the defence, the admission of negligence was at best equivocal, and at worst meaningless. The defence denied that the allegation that the defendant's vehicle approached the plaintiff's vehicle from behind, did not admit the particulars of negligence alleged against the defendant, and alleged further that the collision was caused wholly or in part by the plaintiff. In short, the defendant's position was that he had right of way.
In a civil action arising from a motor vehicle crash, a finding of negligence is a legal conclusion from the facts found as to the manner of driving of the defendant. In this action the defence as originally pleaded did not admit any facts disclosing negligence on the part of the defendant. Assuming then, as foreshadowed by counsel, that the defendant would give evidence that he did not make any of the omissions pleaded in the particulars of negligence, nothing could reasonably be inferred from the admission of negligence as to his manner of driving. It was an admission made on his behalf by the Insurance Commission as the statutory third party insurer. There was no evidence that it was made on his express instructions. It may be inferred from what Mr Jarman stated that the admission was made on legal advice as to the likely findings of fact but it was inconsistent with the allegation that the crash was caused wholly or in part by the plaintiff.
In these circumstances, I came to the view that the admission was mistaken in an objective sense and should not, in the circumstances, operate to limit the scope of the defendant's evidence. There being no prejudice to the plaintiff in terms of the conduct of her case, the interests of justice are best served by the determination of all questions of fact by the court upon the hearing of all relevant evidence of the circumstances of the collision in question.

Road Traffic Code 2000

Each party alleges as a particular of negligence that the other failed to give way. Compliance with the rules of the road is not determinative, but may be evidence of negligence. In Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424, the High Court (Barwick CJ, McTiernan, Kitto, Taylor & Owen JJ) held:
The common-law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case.
Therefore, it is, in our opinion, rightly said that the '"right hand rule" is not the be all and end all in relation to questions of civil responsibility'. The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected. (427)
(See also Tweed v Shepherd [2008] WASCA 59 [112] ‑ [114]).
Although non-compliance with a traffic regulation is not determinative of breach, the Road Traffic Code 2000 is relevant to determining the content of the duty which each of the drivers owed to each other to take reasonable care in the circumstances of the collision. Regulation 128 provides:
A driver in a line of traffic, that is merging with one or more lines of traffic travelling in the same direction as the driver, shall give way to a vehicle in another line of traffic if any part of the vehicle is ahead of the driver's vehicle.

Evidence − Liability

Exhibit 1 is a plan of the intersection which is a T‑junction. Gordon Road joins Lakes Road where it changes direction from roughly north/south to east/west, such that Gordon Road and Lakes Road (east) form a continuous roadway. Traffic travelling north on Lakes Road must give way to traffic on Gordon Road. Gordon Road is a double carriageway with two lanes in each direction, but at a point shortly before the intersection the eastbound carriageway narrows such that two lanes merge into one at a point where a right turn slip lane is constructed, allowing traffic to turn right into Lakes Road (south). The configuration is somewhat unusual. The narrowing of the road is marked by successive signs, the first reading 'LANE ENDS MERGE RIGHT' and the second 'FORM ONE LANE'. The view of the intersection for drivers travelling east is somewhat obscured by a slight bend to the right and median strip plantings as depicted in exhibits 2 and 3.
At the time of the collision, the southern extension of the Kwinana Freeway was being constructed and Gordon Road/Lakes Road (east) was frequently used by trucks conveying landfill to the construction site. The defendant was very familiar with the road as he drove a prime‑mover and trailer to and from the construction site many times daily. The plaintiff, who lived on Lakes Road some distance to the east of the intersection, used the road about four times per day and was also very familiar with it and its use by large vehicles.
At about 4.15 pm the plaintiff was driving east on Gordon Road. She was travelling in the right‑hand lane of the carriageway. As she approached the right turn slip lane, she noticed in her left side rear vision mirror a truck very close to her vehicle. It appeared to her that the truck was overtaking her vehicle. She was concerned that there was no room to do so. She said:
He sort of overtook – started to overtake and I looked to where I was going to go and then I went to slam on my brakes and he hit the side of my car and it pushed me into the median strip across the side of the road.
The median strip referred to by the plaintiff is located on the eastern side of the intersection between the east and westbound lanes of Lakes Road (east).
The plaintiff said her speed as she approached the merged lane was about 79 km per hour, definitely no faster than 80 km per hour. She said her speedometer was set at 80 km per hour and would beep if that were exceeded. There was no need for her to slow down at that part of the road. She observed a couple of vehicles turning right in the slip lane.
Her recollection was that the collision occurred at a point in line with the end of the median strip to the west of the intersection, that is, in line with the end of the right turn slip lane. She thought that the collision occurred between the left side of her vehicle and the right‑hand side of the prime‑mover driven by the defendant. Her evidence was:
And are you aware of which part of his vehicle came into contact with yours? - It would have been the – somewhere along the front of the cab, but it could have been just a bit behind his passenger's door, but I wasn't looking where that impact - - -
Yes, you weren't aware of where exactly he struck you? - Not exactly, no. But he wasn't far in front, I know that.
Asked whether she did anything apart from trying to brake, she said that she tried to beep her horn, but thought it would have been a quick beep because the event happened so quickly.
When her vehicle came to a stop on the median strip it stalled. She re‑started it and drove off the median strip and east for a couple of hundred metres past the intersection before stopping near the defendant's truck. She had a conversation with the defendant in which she said he told her that he thought she was turning right. At the point where the collision occurred, the plaintiff was aware of two vehicles on her right. These were able to complete their right‑hand turns. The plaintiff denied that she had any intention to turn right. She had no reason to go in that direction. She recalled another truck passing her as she tried to get her vehicle re‑started.
Photographs of the plaintiff's vehicle, a Toyota Camry four‑door sedan, indicate significant scraping damage on the left passenger side front and rear doors and over the left rear wheel arch. The left side wing mirror is also damaged, apparently pushed forward (exhibit 2). The damage to the two passenger doors is below the level of the door handles. No expert evidence was called in relation to the damage.
In cross‑examination, the plaintiff confirmed that she was to the right of the defendant's truck when the collision occurred, but denied being in the slip lane. She maintained that the left side of her vehicle collided with the right side of the prime mover. Her evidence was that she saw the movement of the defendant's truck in the corner of her eye and 'realised he was trying to overtake'. She denied the suggestion that she in fact tried to overtake the defendant's truck, but ran out of room to do so and panicked. She maintained that she did attempt to brake when she first saw the defendant's vehicle. What the plaintiff meant by 'attempt to brake' was not established.
The plaintiff put the location of the collision as two car lengths west of the end of the median strip on the Gordon Road side of the intersection, slightly to the west of where she indicated originally. When it was suggested to her that the single continuing lane left of the slip lane was not wide enough for the defendant's truck and her vehicle to be side by side at that point, the plaintiff responded, referring to the vehicles she saw in the slip lane, as follows:
Yeah, because those are the two that were going across, they were like already in front, they were in the front of that slip lane, like turning.
… I was probably behind him and then the truck pushed me to the right, like through that sort of slip lane right behind those cars that were turning.
The plaintiff described being pushed to the right and continuing straight ahead, striking the median strip. She said also in cross‑examination that she tried to steer away from the defendant's truck. When asked why she did not move into the slip lane to avoid a collision with the defendant's truck, she said that she did not think he was going to 'push past'. She was used to trucks tailgating. If she had thought he was going to push past, she said she would have accelerated, but she did not do so because she thought it might cause more damage. The plaintiff said that when she noticed the defendant's truck to her left it was about half a car length behind her vehicle.

The plaintiff denied that she accelerated to avoid being sandwiched between the defendant's truck and the truck following it which the plaintiff had also observed prior to the collision. The plaintiff had seen the vehicles and in fact passed them on a hill on Gordon Road some kilometres from where the collision occurred. She took no further notice of the trucks until just prior to the collision when she saw the defendant's truck behind her vehicle. At that point she did not think that the defendant would try to pass her. The plaintiff indicated that her understanding of the signage was that the left lane merged into the right and that the vehicle in front of another had right of way.
The plaintiff gave evidence in examination‑in‑chief and cross‑examination of her conversation with the defendant following the collision. I do not propose to refer in any greater detail than I have to that conversation notwithstanding that there are conflicts between the evidence of the plaintiff and the defendant in relation to it. Having heard all the evidence, I do not consider that anything turns on the conversation which, on the evidence, was unlikely to have been reliably and accurately recalled by either party, except the admission by the defendant that he thought the plaintiff was going to turn right which, for reasons to which I will come, I find to have been made.
In answer to questions by the court the plaintiff said that she was not conscious of the two trucks at the point where the lanes merged. Her attention was on the intersection ahead. She was not concerned that she was at that time in the vicinity of two large articulated vehicles. She did not anticipate that the defendant would pass her. She thought he would merge behind her vehicle.
The defendant works as a truck driver. He was about 50 years of age when the collision occurred and had been driving trucks most of his life. He described the vehicle he was driving as a Freightliner semi‑tipper. His job was to cart sand from Stake Hill to the freeway construction site. At that time he was driving his truck along Gordon Road about 12 times each day. On the occasion of the collision he was driving at 80 km per hour using cruise control. He described the collision as follows:
[S]he was behind me and then I saw in the mirror her pull out to pass me. Then I was on the left hand lane, she was in the right hand lane, then there's a power pole that sticks out, so we always know it's going to get narrow there, so we always shift over to let the other cars in the right hand lane going to turn right so they can fit through. And she came up beside me and I heard her tooting her horn at me and I looked in the mirror and I could see her tooting the horn at me and she looked – looked pissed off. And then, I don't know why because I wasn't doing anything wrong, then I saw her while she was tooting the horn drift over and hit my back wheel on the trailer.
The defendant said that the collision occurred to the guard forward of the triple wheel set at the back of the trailer. He identified the guard in a set of three photographs (exhibit 11) which depict horizontal scrape marks, but no other sign of damage. The defendant was clear in his evidence that the collision did not occur between the prime mover and the plaintiff's vehicle. The height of the guard appears to be consistent with the height of the damage to the plaintiff's car.
At the time of the collision the defendant's vehicle was being followed by a similar cartage vehicle being driven by Wayne McGregor whose nickname is 'Frog'. The defendant said there was no discussion between him and Mr McGregor prior to his conversation with the plaintiff. His recollection of the conversation he had with the plaintiff was that she was upset by the damage to her car. The defendant said that he reported the collision to his employer Mr Roger Baker who completed a police crash report for him as he is unable to write.
When cross‑examined the defendant said that his speed was set at 80 km per hour which he regarded as a safe speed in the circumstances. He said there was no need for him to slow his vehicle as it approached the intersection. The defendant was shown exhibit 3.1, a picture of the traffic sign which read 'LANE ENDS MERGE RIGHT'. He read the word 'right' as 'traffic', indicating his lack of reading ability and imperfect recognition of the sign. The defendant said that as the lanes merged the road ahead was clear, other vehicles having turned off to the right.
When it was put to him that he had to be careful where the lanes merged and slow down he said it depended on how he read the traffic. He accepted that there were cars turning right from Gordon Road into Lakes Road (south) and cars coming out of Lakes Road. He did not consider it inappropriate to proceed at the maximum permitted speed.
In relation to the point of collision on his vehicle he maintained that the only damage was to the guard forward of the rear trailer wheels which he observed to be scratched. Despite being colour‑blind he accepted that there were no dark paint marks on the guard consistent with having scraped the defendant's vehicle which was of a dark colour.
The defendant maintained that the plaintiff started tooting her horn as she attempted to pass his vehicle. His recollection was that her vehicle was behind his, but trying to pass. She was hooting as her vehicle came alongside his. He denied that the plaintiff's vehicle was ever in front of his.
The defendant was cross‑examined on his police report which was written for him by Mr Baker (exhibit 12). The report read that the plaintiff's car came into contact with the first set of bogies on the trailer. The defendant denied having used the word 'bogies' which referred to a twin axle wheel set of which there was none on the trailer. He agreed that the report stated that the plaintiff's vehicle had drifted into his. It was put to him that the report indicated that he was overtaking at the time of the collision. The defendant denied that he did so. The defendant disputed the plaintiff's account of the conversation they had after the collision. The defendant described the appearance of the plaintiff when he saw her in his rear view mirror as angry. He was able to see her face in his side mirror. He was also able to see where her vehicle came in contact with the trailer.
Mr McGregor was a rather cantankerous witness, obviously unhappy to be called to give evidence and resistant to any challenge. His evidence conflicted with that of the defendant in a number of respects and was inconsistent occasionally with a statement he made to an accident investigator. Mr McGregor said that his vehicle, which was 19.1 m long, was one length from the rear of the defendant's, that is, about 20 m. The total road weight of his vehicle was 39.5 tonnes. As his vehicle approached the intersection behind the defendant's he was driving at 78 or 79 km per hour. The speed limit was 80 km per hour.
His account of what occurred was as follows:
Me and Hayden were travelling in the left-hand lane. It come in - it like had formed into, started to form into one lane, there was a slip lane, which was turning right. Me and Hayden were in the left-hand lane. There was a heap of cars turning right and I observed a black car come out the slip lane and slam into the side of Hayden’s trailer, which was on the tri-axle of his trailer, which is at the back of, you know, basically back of the - of the rig.
Mr McGregor said he had a good view from the cab of his vehicle. He remembered seeing the plaintiff's car come out of the slip lane. He said the car struck the side of the trailer, bounced off, hit the median strip and then came in front of him and crossed to the left‑hand side of the road on the verge so that he had to apply his brakes to avoid it.
With respect to the distance at which he observed these events Mr McGregor admitted that in an earlier statement he said that he was 150 m behind the defendant's vehicle. He said that could not have been correct as he would not have had a clear vision of what happened. His evidence also varied from what he had said in his statement with respect to the number of vehicles he saw turning right at the intersection. He gave evidence that there were three or four vehicles in the right turn slip lane, whereas in his statement he said that he saw eight cars turning. He was unable to give an explanation for that discrepancy, saying that in each case he simply estimated how many cars he saw. Mr McGregor's evidence was that he called the defendant on his radio and asked him whether he wanted him to stop and was advised to keep going. The defendant gave no evidence of any such conversation. Mr McGregor's evidence was at variance with the evidence of the plaintiff with respect to the position of her vehicle after the collision, the plaintiff giving evidence that her vehicle came to stop on the median strip and Mr McGregor stating that the vehicle struck the median strip and then veered to the left‑hand side of the road.
Mr Roger Baker also gave evidence. He was the owner of the vehicle driven by the defendant. He took photos of the vehicle (exhibit 11) and identified the guard forward of the wheels of the trailer on the left as the part of the vehicle which had collided with the plaintiff's vehicle. His evidence in this regard was hearsay. His evidence was otherwise relevant only to explain the circumstances in which the defendant's police report, which had been put to the defendant as a prior inconsistent statement, was completed by him. Where he ticked a box to indicate that the defendant's vehicle was overtaking the plaintiff's vehicle he said he made a mistake because he had been told that the plaintiff's vehicle was overtaking the defendant's.
He was cross‑examined with respect to an insurance report form in which he indicated that the trailer was not damaged. He said that he did not regard the scratching of the guard as significant damage. In the police crash report form he stated that there was paint damage. Where, in the police crash report form, he stated on behalf of the defendant that the plaintiff's vehicle came into contact with the first set of bogies on the trailer, he said he was referring to the wheels of the trailer.

Findings − Liability

I am not satisfied that any of the witnesses was able to give a reliable and accurate account of what occurred in all respects. Each of them was, I find, either mistaken or disingenuous in their recollection to some degree. In the circumstances the resolution of the factual issues is not one that can be made by simply preferring one version to another. To the extent that my findings contradict the evidence of a witness, it may be taken that I have rejected that evidence as improbable.
It is clear from the evidence of the witnesses and the objective evidence of the plan and photographs that the configuration of the intersection was such that a vehicle travelling in the left lane of the eastbound carriageway of Gordon Road at the point where that lane merges with the right lane, as the defendant's was, would (unless a vehicle turning right from Lakes Road (south) into Lakes Road (east) failed to give way) be able to continue through the intersection without loss of speed. A vehicle travelling in the right‑hand lane of Gordon Road, however, as the plaintiff's was, behind vehicles intending to turn right into Lakes Road (south), would necessarily have to slow to some extent as those vehicles reduced speed in order to negotiate the right turn slip lane. The configuration of the intersection was, as I have noted, unusual.
The signage indicated that where the left lane ended traffic should merge right, necessarily creating a bottleneck where the road narrowed prior to the point at which the right‑hand slip lane commenced, vehicles turning right having to slow down from the maximum speed of 80 km per hour in order to be able to move into the slip lane and give way to oncoming traffic.
I find that at all material times the defendant's vehicle, which was followed at some distance by Mr McGregor's vehicle, proceeded in the left lane at 80 km per hour, and, being unobstructed by any vehicles ahead, continued at that speed across the top of the T‑junction formed by the intersection. (McGregor's vehicle was not as close as 20 m as he maintained in his evidence; nor as far as 150 m as he had stated earlier.)
The plaintiff was at all material times prior to the point where the lanes merged driving in the right lane of the eastbound carriageway. She had come alongside and passed the two trucks on a hill about 2 km from the intersection and had remained ahead of the defendant's vehicle up to the point where the lanes merged. At that point vehicles ahead of her in the right lane, of which she and Mr McGregor gave evidence, slowed in order to turn right. The plaintiff, I find, contrary to her evidence, but appropriately, slowed down as she approached the intersection. As a result she was overtaken by the defendant's truck which was continuing at 80 km per hour. It is probable that the defendant assumed that she too was turning right.
For her part, the plaintiff, intending to proceed through the intersection into Lakes Road (east), believed she had right of way. Hence, the plaintiff and the defendant found themselves occupying one lane at a point adjacent to the slip lane. At this point the plaintiff sounded her horn to assert her right of way. The defendant's vehicle, however, was moving faster than hers and by this time was ahead of her vehicle.
I am satisfied that the course and speed of the defendant's vehicle did not change at all between the location of the 'LANE ENDS MERGE RIGHT' sign to the place where the collision occurred. I infer that the plaintiff's vehicle had slowed from a speed just below 80 km per hour to perhaps 60 – 70 km per hour, resulting in her being overtaken by the defendant. Notwithstanding the absence of any paint traces from the plaintiff's vehicle on the defendant's, I am satisfied that the collision occurred between the left‑hand side of the plaintiff's sedan and the metal guard in front of the defendant's trailer wheels.
The defendant's manner of driving is consistent with his vehicle being in line with Mr McGregor's and with his familiarity with the intersection. He believed that it was safe to drive across the intersection at the speed limit when there were no vehicles ahead to obstruct him from doing so.
There is an issue that arises from a difference between the evidence of the plaintiff and Mr McGregor as to where her vehicle came to rest after the collision. It is not critical to the issue of liability, but ought to be resolved for completeness. I am not satisfied that Mr McGregor's account is correct. I prefer the plaintiff's evidence on this point. It is more probable that the plaintiff's vehicle stopped on the median strip on the other side of the intersection. Although he said that he was forced to brake, at the speed at which Mr McGregor was driving it seems likely that his truck would have collided with the plaintiff's car had it veered across his path. I am satisfied that the plaintiff did not swerve to the left after being struck. The plaintiff's vehicle coming to a stop on the median strip is consistent with her having lost speed as she negotiated the intersection as I have found.

Conclusions −Liability

On the evidence it not possible to determine a point on the roadway where, in accordance with reg 128, one driver or the other should have given way. At one point, as the lanes merged, the plaintiff was ahead of the defendant, but her vehicle was slowing and the defendant was maintaining speed. The question of liability is therefore to be determined on the basis of the principle that each driver owed a duty to the other to take reasonable care to control their respective vehicles so as to be able to bring them to a stop or otherwise avoid a collision, in circumstances where, if both vehicles continued, a collision could reasonably be expected.
On the basis of these findings I have concluded that the defendant was negligent in the manner of his driving. He drove at a speed that was excessive in the circumstances and failed to take sufficient account of the presence of the plaintiff's vehicle on the roadway until it was too late for him to do anything to avoid a collision with it. At the point where the lanes merged the defendant should have slowed his vehicle. As it was the left lane that terminated upon the narrowing of the road, the defendant's mistake in interpreting the road sign is telling. At that point, as the lanes merged to the right, he was bound to look out for the plaintiff's vehicle on that side, and, if required, give way to it. He did not exercise reasonable care. Whether he assumed that the plaintiff was about to turn right or not, the defendant took advantage of the slowing of the plaintiff's vehicle to pass her on the left at a point where the roadway had already narrowed to one lane. I am satisfied that it was in the defendant's interests, driving a heavy loaded truck at a set speed of 80 km per hour with a similar vehicle behind him, not to slow down at that point if he could avoid doing so.
The plaintiff was also negligent. She was aware of the frequent use of Gordon Road by large trucks. She had overtaken the trucks driven by the defendant and Mr McGregor. It is clear from her evidence that as she approached the intersection she did not pay enough attention to the presence of the defendant's and Mr McGregor's trucks on the roadway, failing to appreciate that when the lanes merged and vehicles ahead of her slowed to turn right, causing her to slow, those trucks were likely to pass her on the left. A vehicle travelling on the left side of the road would not have to reduce speed to the same extent as hers would be required to do. Had the plaintiff been mindful of the presence to her left of the defendant's vehicle and seen it before she did, she would have appreciated that it would be difficult for the defendant to slow down so as to allow her right of way.
When it became apparent to the plaintiff, as the lanes merged, that the defendant's vehicle was going faster than hers, she should have given way. She did not do so. Rather, she sounded her horn and maintained her line of travel. I am satisfied that it was only when a collision was inevitable that she braked. Up to that point she insisted on right of way when it was unreasonable to do so. She could have further slowed her vehicle by braking or she could have moved to the right towards the slip lane which, on her evidence, was occupied by only two vehicles, both ahead of hers. By insisting on right of way the plaintiff contributed substantially to the collision.
Apportionment in such cases involves a comparison of the culpability of each party based upon an assessment of the degree to which each party's manner of driving departed from the standard required of a reasonable driver in the circumstances: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492.
Taking into account all of the circumstances, I consider that the defendant's negligence was more culpable because of the risk to other road users created by driving his prime‑mover and loaded trailer at an unreduced speed into a merging lane approaching an intersection. For her part, the plaintiff mistook her position in relation the defendant and, instead of yielding, continued. Her contribution was less. I reduce her damages by 25%.

Evidence − Quantum

The plaintiff was born on 16 February 1970. She was aged 37 when the crash occurred and is now 42. The plaintiff was married in 1993. Since that time she has had an interest in horses. She has bred Arab horses and shown them competitively. In 2001 she gave birth to her first child, a daughter, and ceased work for about four years until 2005 when she took up part‑time work at a Woolworths' supermarket. In the meantime, the plaintiff and her husband purchased a five acre property in Barragup in 2002 on which they built a residence which was completed in 2004.

The property was also improved by the construction of seven paddocks, a dressage arena, a round yard and stable complex. At the date of the collision she had four horses on the property: her own, her daughter's, a borrowed horse and another that she looked after and had some use of. Looking after those horses involved grooming, feeding, rugging and preparing them for shows. Her husband, who was employed as a fire brigade station officer, as well as having his own business, had no interest in horses.
The plaintiff gave birth to another child, a son, in January 2011. She gave evidence that had she not been injured she would have ceased work for six months to a year following his birth.
The plaintiff and her husband separated in February 2012 and are likely to become divorced. As a consequence she expects that they will sell the property and that she will move into a small house in the Meadow Springs area with no facility for horses.
The plaintiff attended school to Year 10 level and then worked in a number of occupations as appears from her resume which is exhibit 4. From 1986 to 1989 she worked at Roy Weston Real Estate in Bull Creek as a receptionist. From 1989 to August 1993 she worked at Roy Weston in Willetton as an office manager and personal assistant. She was then employed by Summit Realty in Rockingham from August 1993 to 1996 as a rental property coordinator and by the same firm from June 1996 to October 1997. From December 1997 to July 1999 the plaintiff worked for Defiance Milling in Byford in a role described as site administration secretary/manager's secretary/customer complaints coordinator. From September 1999 to April 2000 the plaintiff worked for Rockend Technology in South Perth performing administration and reception duties. She was then employed by Shires Equestrian Products in Kelmscott as a retail assistant and warehouse assistant until September 2001.
The Woolworths store at which the plaintiff was employed opened in mid‑2005. She had been employed from May 2005 to stack the shelves. Prior to the collision she had reduced her hours in order to do things on the property which she wanted to set up as an agistment centre. She also said that she was riding a lot during the day in preparation for the Royal Show. At the time of the crash she was trying to increase her daytime hours. She earned $22 per hour.
Her tax returns (exhibit 5) show that she earned income as follows:

Year

Employer

Gross income

2005

Woolworths

$2,014

2006

Woolworths

$15,487

2007

Woolworths

$9,387

Tania Clayden

$1,683

2008

Woolworths

$4,2271

Tania Clayden

$1,197

There are no other tax returns in evidence. I understand from the plaintiff's evidence that Tania Clayden employed her in a canteen. This work ceased prior to the crash. The plaintiff has not worked gainfully since 30 June 2008. She tried on one occasion to work for a friend in her cleaning business. She said she was not quick enough and the bending and stretching aggravated her symptoms.
In 2005/2006 the plaintiff earned $15,487 working for Woolworths at an average of $298 per week. In 2006/2007 she earned an average of $213 per week ($180 per week from Woolworths). In the period of almost five months from 1 July 2007 to the date of the collision the plaintiff's average weekly earnings from Woolworths were only $70.84 per week. Generally in this period the plaintiff earned $90 ‑ $95 gross per week, corresponding to about four hours per week. She did not work at all during October 2007.
The plaintiff gave evidence that following the crash she experienced pain in her low back and neck and headaches. She attributed her symptoms to stress caused by the incident, but when the pain continued the next day she went to see her general practitioner. She was prescribed analgesics. Her neck was stiff and sore. She found little relief until she went to a chiropractor who treated her with acupuncture. Her symptoms resolved and the plaintiff said she was not troubled with neck pain subsequently. The plaintiff's evidence was unclear as to when the neck symptoms resolved. The plaintiff said that she also had pain in her low back and down her leg.
The plaintiff said that she continued to work after the crash, but found that she could not go up a ladder all the time. She said that night‑fill work involved a lot of bending and lifting and was quite fast. She said that she tried to work in a checkout position, but was not successful as she was required to stand in one place. The plaintiff said that when she returned to work after the collision she was not as efficient. Her hours dropped because she had appointments for her back. She said she was no longer able to work as often as her employer wanted her to.
In cross‑examination the plaintiff could not recall precisely how much time she had off work after the collision, but she thought it might have been a week or so. She went to work on one occasion because she wanted to keep on good terms with Woolworths. She kept working whilst she was trying various medications and undergoing physiotherapy. She said she put up with it but really suffered afterwards. She was able to do facing work which did not involve bending or climbing ladders.
The plaintiff was asked about an MRI scan in April 2008. She said that about this time she had pain down her leg and trouble sleeping. She agreed that she probably aggravated her back at that time, but could not specifically remember doing so. She did not accept that it could have been as a result of riding. Various activities made her back worse.
She underwent injections by Dr Hamid Hamzah which relieved her leg pain. She thought these were done in 2009, but according to Dr Hamzah's evidence it was in late 2008.
She has continued to have ongoing low back pain which she now describes as a dull ache at the base of her spine on the left, aggravated by prolonged sitting or standing or putting strain on the back. The plaintiff said that she could not ride horses for more than about 15 minutes and that the pain has prevented her from doing some things. She normally wore a belt support for her back. Driving aggravated her symptoms.
The plaintiff said that she has had physiotherapy treatment at her own expense about every fortnight. She had also been provided with a TENS (Transcutaneous Electrical Nerve Stimulation) machine which gave short term relief. She had been prescribed exercises and was endeavouring to build up core strength and improve her fitness. She had acquired a different mattress which had helped her symptoms.
The plaintiff said she was initially prescribed Voltaren, but was then changed to Tramadol. She had a reaction to Tramadol in the form of a rash and was then prescribed Celebrex and Endone. She was also prescribed Panadeine Forte which she has continued to take along with Panadol.
At the date of trial the plaintiff's second child was 17 months old. It was put to her that as she had taken four years off work following the birth of her first child she was likely to do the same with respect to her second. The plaintiff said that she would not have done so as she had set her property up for agistment and would have been able to work at home. In that event she would not have needed to work at Woolworths.
The plaintiff was referred to her employee earnings history at Woolworths which indicated that her earnings increased significantly in March − May 2008. Over a period of eight weeks up to 27 April 2008 the plaintiff earned on average $264.46 gross per week, almost three times her average earnings in the period prior to and immediately after the collision. When asked if she could recall doing more hours in March the plaintiff said that she remembered Woolworths giving her facing work to do which was a lot easier. She also said that she trained for checkout work. When it was put to her that she was working longer hours she said that she did not recall doing so, but did not dispute what the records showed. The plaintiff agreed that she could do office work as long as she was able to move around such that she was not required to sit for eight hours in one place. She was not sure how she would cope as she had not tried to do such work, but she agreed that she told Dr Slinger she would be able to do it.
With respect to agistment, the plaintiff gave evidence that the local authority allowed two horses to be kept, but she understood that more than two might be kept if no‑one complained. Her stable was set up with four stalls. At the date of trial the plaintiff had only one horse. The stable had been built at the same time as the house but between that time and the date of the crash she had not earned any money from agistment. She said that she was able to accommodate seven horses in paddocks on her property and could charge $55 a day for full agistment.
The plaintiff said that she would have continued to work at Woolworths until she set up her agistment business. She said that she was not able to qualify as a riding instructor because she could not do enough horse riding to pass the necessary tests. On the occasions she had ridden a horse she needed a mounting block. She was able to ride for 15 to 20 minutes before her pain worsened, making riding uncomfortable. The plaintiff accepted that as a result of her separation the opportunity to agist horses on her property would not be open to her. Her evidence was that if the business was not a success she would have continued to work at Woolworths and would by now be working full‑time.
There was no evidence by a representative of Woolworths as to the availability of full‑time or part‑time work or of the remuneration of such work.
The plaintiff gave evidence that she had not been able to carry out all of her domestic duties and had been assisted by her parents. She had also engaged a lawn mowing service. Prior to the crash she did the lawn mowing on a ride‑on lawn mower. She did most of the property maintenance. Since she and her husband separated in February this year her parents had assisted her to a greater extent. She said that work made her back ache. She could not ride the lawnmower because she could not reach the foot pedals.
She acknowledged that her parents would come to see her for social reasons. She said that her mother would wash floors, iron, hang towels and 'just assist me when I needed it'. Her father would do things such as lawn‑mowing, whipper‑snipping, raking, spraying and general outside tasks. When asked for her estimate of the time her parents spent assisting she said, 'It's hard to say. I haven't actually, like, timed it. It could be nearly 10 (hours)'.
Prior to separation she and her husband would share domestic duties. When her husband was not working he would assist with ironing and cooking. Since separation the amount of ironing was greatly reduced. Before that she estimated that her parents gave her assistance for five hours per week. Although the plaintiff was not challenged on her estimation of the time spent by her parents assisting her with her domestic tasks, her evidence contained very little detail as to what assistance they provided. Neither of her parents was called.
The plaintiff said that she had struggled to manage her younger child. She had acquired a lighter pram. She said feeding and carrying him was hard on her back. Prior to the collision she had done scuba diving and abseiling, but not since. The plaintiff said that she would go scuba diving perhaps six times a year. Her main recreational activity was horse riding. At the time of the crash she was training to compete in the 2008 Perth Royal Show.
There were four medical witnesses called, three on behalf of the plaintiff and one for the defendant. The plaintiff called Dr Svetlana Deric‑Jovanovic, general practitioner, Dr Barrie Slinger, orthopaedic consultant, and Dr Hamid Hamzah, pain management specialist. Various reports and other correspondence and documents produced by the plaintiff's medical witnesses were tendered in bundles in the course of their evidence. The defendant called an occupational physician, Dr Martyn Flahive.
Dr Deric‑Jovanovic could not recall whether she had seen the plaintiff prior to the crash as she saw her at a different medical practice and did not have the notes. However, by reference to her reports (exhibit 9) she confirmed that she saw the plaintiff on the day after the crash. The history, according to her report dated 17 September 2010 (exhibit 9.4), was that the plaintiff experienced a sore neck and left‑sided low back pain associated with headache two hours after the crash and was very stressed. Dr Deric‑Jovanovic noted a tender low back in the middle, painful left lateral flexion and no neurological signs. She prescribed Mersyndol for pain relief and recommended a review in two weeks.
The plaintiff next attended four months later on 2 April 2008 with a 'six‑month' history of low back pain radiating to the left leg which Dr Deric‑Jovanovic assumed was post-crash. The plaintiff told Dr Deric‑Jovanovic that she had seen a chiropractor on a few occasions, but had not had any improvement. The chiropractor was not called. She was referred for a CT scan of the lumbosacral spine. On 22 April 2008 Dr Deric‑Jovanovic referred the plaintiff to Dr Slinger.
Dr Deric‑Jovanovic issued certificates of unfitness for work on 20 May 2008 and 27 August 2008, but had no recollection of the reason for the certificates. She could not recall for what work she was certifying her unfit. She remembered only that she could not ride horses.
Dr Deric‑Jovanovic's last documented consultation was on 22 November 2010 when she issued a certificate for a latex mattress and base due to ongoing low back pain (exhibit 9). She saw her subsequently on 1 December 2010, 30 May 2011, 7 July 2011, 7 November 2011, 25 November 2011 (unrelated) and 19 March 2012. On 7 July 2011 she referred the plaintiff to a clinical psychologist. No evidence was adduced in relation to this referral.
Dr Deric‑Jovanovic's report of 17 September 2010 indicates that another doctor prescribed anti-depressant medication on 24 September 2009, but no evidence was adduced of the reason for this prescription. Indeed, there was no evidence of the pleaded conditions of anxiety and depression.
Dr Deric‑Jovanovic was not asked for an opinion as to capacity for work or need for services.
Dr Slinger stated in his report to Dr Deric‑Jovanovic dated 15 July 2008 (exhibit 8.1) that the plaintiff had suffered a soft tissue injury to the lower spine which had improved. Further improvement was anticipated. Dr Slinger recommended that she avoid activities likely to aggravate her symptoms and to follow an exercise program. He thought physical therapy was best reserved for times of symptomatic exacerbation.
According to Dr Slinger's medico‑legal report of 30 June 2010 (exhibit 8.2), the lumbar CT taken in April 2008 showed 'a minor disc bulge at L3/4, a diffuse annular bulge at L4/5 with encroachment to the left foramen and compression of the exiting L4 nerve root and bilateral facet arthropathy at both L4/5 and L5/S1'. Notwithstanding these signs Dr Slinger's opinion was the plaintiff had suffered a soft tissue injury to the lumbar spine. He did not consider the radiological findings to be of any significance. Dr Slinger referred in his report to reports by Mr Gary Sheehan, physiotherapist, and Mr Craig Armstrong, chiropractor, but neither of these practitioners gave evidence.
Dr Slinger recorded a history of low back pain radiating to the left buttock 'as a tight discomfort', aggravated by sitting for any length of time, such as when driving, bending, and standing for a long time. Although he noted tingling radiating along the left leg to the foot when walking, he stated that there were no symptoms in either leg apart from some numbness in the buttock. Surprisingly, the somewhat confusing description given by Dr Slinger of the plaintiff's symptoms was not explained in the course of his evidence. He considered that the plaintiff had suffered soft tissue injuries which he defined as injuries to muscles, ligaments, discs or joints. He could not say, however, what specific injury caused the plaintiff's symptoms. A motor vehicle accident could cause soft tissues to be bruised, torn or ruptured. With reference to the CT scan, Dr Slinger said that compression of the L4 nerve root would normally cause symptoms of sciatica or pain referred to the leg. The facet arthropathy at L4/5 and L5/S1 was age‑related osteoarthritis of the facet joints but could be rendered symptomatic by a significant injury.
In cross‑examination Dr Slinger said that the radiological appearance of left foramen stenosis at L4/5 with focal and annular bulge and compression of exiting L4 nerve root was not caused by the crash. There was no real evidence of significant nerve compression.
When Dr Slinger reviewed the plaintiff on 29 June 2010 he noted that her symptoms had improved and were less painful. They were confined to her low back, mainly on the left, including the left buttock. Tingling in the leg had ceased. Pain was aggravated by sitting, standing, such as when ironing, and horse riding. Her capacity for walking was variable. Lifting and bending also aggravated her back. He recommended avoidance of provocative activities known to initiate or aggravate symptoms and an exercise regime, with the emphasis being on improvement in trunk, abdominal and core muscle strength. Dr Slinger's recommendations were made on the basis that although the crash was the source of her symptoms, their severity was a reflection of 'either undue physical stress placed on the lumbar spine, or alternatively, inadequate support'.
Dr Slinger did not consider that the plaintiff was fit for work in a supermarket as a night‑filler or operating a checkout. She would be able to return to areas of work in which she had previously been employed, including general office duties, personal assistant, desktop publishing and retail sales, assuming that they did not require static postures, heavy lifting or repetitive bending.
Dr Slinger's final report of 23 April 2012 (exhibit 8.3) is based on his review on 17 April 2012. His diagnosis, recommendations and opinion as to capacity for work were unchanged. Dr Slinger was asked whether the plaintiff required assistance with household duties, gardening and general property maintenance, including looking after her horses. His response was that he understood the plaintiff had received assistance with those tasks from her husband, but that as they had separated she would need to obtain assistance from elsewhere. He did not express any opinion as to the extent of the plaintiff's need for such assistance.
In Dr Slinger's opinion as the plaintiff had ongoing symptoms for more than two years, such symptoms were likely to be permanent, but could be modified or reduced by recommended treatment. He could not exclude the possibility that the plaintiff would be able to return to full‑time employment in any of her pre‑accident occupations, including shelf stacking. In his evidence Dr Slinger agreed that the plaintiff would need to make a graduated return to work, commencing on a part‑time basis and increasing her hours. No time frame was suggested.
The defendant's counsel asked Dr Slinger whether the history of the plaintiff being referred for a CT scan in April 2008 suggested that her symptoms at that time were not due to the crash. Dr Slinger disagreed. He thought that the general practitioner had been prudent not to order radiology earlier in the absence of symptoms of disc compression. Dr Slinger's opinion that the symptoms reported by the plaintiff were caused by the crash was not challenged.
The plaintiff saw general practitioners on 20 May, 16 June and 7 July 2008 and on each occasion was prescribed Tramadol. Then, on 23 July 2008 the plaintiff presented again with low back pain and was referred to Mr Gabriel Lee, neurosurgeon. No evidence was adduced from Mr Lee, but it is apparent from Dr Deric‑Jovanovic's report that Mr Lee obtained an MRI of her lumbosacral spine which confirmed the presence of a disc bulge at L4/5. He advised conservative treatment and referred her to Dr Hamzah for pain management.

Dr Hamzah reported to Mr Lee on 21 October 2008 (exhibit 10.1). At that time he recommended a left L4/5 root sleeve injection and epidural injection. These were subsequently performed. Dr Hamzah wrote to Mr Lee on 16 December 2008 saying that the plaintiff had reported a very good result initially, but found that her pain had started to return. He next reported on 11 March 2009, stating that the plaintiff continued to have back pain with occasional pain down her left leg. She was reasonably comfortable, but sometimes had bad days. She had not been able to ride her horses and could not walk for any length of time. Her mother helped her with her housework. She was having some physiotherapy and doing exercises at home.
On 30 April 2009 Dr Hamzah reported that the plaintiff felt she was improving slowly and was able to do more. She still had aggravation of her back pain when she bent over for any period of time, such as when cleaning out a horse trough. She would then have pain for a couple of days.
On 8 October 2009 Dr Hamzah reported that the plaintiff was taking Endone and Celebrex. She told him she was not able to ride her horses as every time she tried to do so it exacerbated her numbness. She was not experiencing shooting pains as she had previously, but numbness in the left buttock and leg worried her. On 3 November 2009 Dr Hamzah reported that a recent MRI did not show any nerve compression at L4/5 or L5/S1, but a slight bulge at L3/4 that was not present previously. He did not consider this was causing any problems. He attributed her symptoms to the facet joints and recommended a diagnostic/therapeutic facet joint injection.
Dr Hamzah next reported to Dr Deric‑Jovanovic on 16 June 2010. Arrangements had been made to perform the recommended injections on 1 July 2010, but it appears from the next report dated 8 September 2010 that the procedure did not eventuate as the plaintiff had become pregnant. At that time she continued to report low back pain. She had been provided with a TENS machine. On 21 October 2010 Dr Hamzah reported that the TENS machine had been beneficial.
Dr Hamzah made a detailed medico‑legal report on 4 May 2012. His opinion was that the symptoms which he had treated the plaintiff for were caused or contributed to by the crash. When reviewed on 1 May 2012 the plaintiff was not tender over the facet joints, but appeared quite tender over the left sacroiliac joint. Again, he recommended a diagnostic/therapeutic injection. Dr Hamzah said he was unable to predict the plaintiff's requirement for future injections beyond the initial diagnostic/therapeutic injection which he thought would aid her recovery together with a good exercise programme. At worst he thought that she may require radiofrequency ablation to the nerves of the sacroiliac joint which would be done once if the initial injection had been helpful.
Dr Hamzah agreed that the plaintiff was fit to do part‑time work provided she was able to move around and avoid prolonged sitting or standing. He did not consider that the plaintiff's condition would be permanent if she followed an appropriate exercise programme and lost weight. He thought she would be fit for her pre‑accident work in the future. As to her domestic activities, he considered that her initial injuries did inhibit her performance such as she required some assistance, but he thought with improvement of her condition the need for such services would decrease.
In cross‑examination Dr Hamzah agreed that the pain for which he treated the plaintiff could be caused by age‑related degeneration. When he first saw the plaintiff in 2008 he considered that her symptoms were due to collision, but he agreed that seeing her a year after the event it was difficult to assess the cause of her symptoms. His initial opinion appears to have been based on the plaintiff's history.
Dr Flahive reviewed the plaintiff on two occasions at the request of the defendant's solicitors and prepared reports dated 30 December 2010 and 12 April 2012 (exhibit 14). He elicited a detailed history from the plaintiff on each occasion. Much of what he reported was not mentioned in the plaintiff's evidence. For example, he noted that the plaintiff had, prior to the crash, regularly attended a gym in Mandurah, doing circuit, pump and fit ball exercises, as well as participating in a weight loss programme. She attended the gym up to five times a week prior to the crash, but did not attend subsequently, despite medical advice to do so. The plaintiff told him, however, that she tried to do exercises at home every second day and walked if she could.
At the time of his first review in December 2010 the plaintiff was pregnant and limited in her activities. The plaintiff told Dr Flahive that she was working four times a week at Woolworths from 9.00 am to 1.00 pm. This statement is clearly contradicted by her documented earnings history. She told Dr Flahive that she ceased working in May 2008 because she was unable to work as a checkout operator and Woolworths had no restricted duties available. She had not looked for any alternative work.
The plaintiff told Dr Flahive that her pain at the base of her spine and in the left buttock ranged from between 9/10 to 10/10. This is at odds with the plaintiff's evidence of her pain symptoms and the descriptions recorded by other practitioners, none of which suggested such severe pain. She told Dr Flahive that her pain initially went down to the left ankle, but this had resolved. She still experienced pins and needles in her left buttock if she lay on her left side for long. She tended to walk with a limp. She was taking up to eight Panadeine Forte tablets per day, using a TENS machine and having physiotherapy twice weekly.
Dr Flahive took a detailed history of the plaintiff's domestic activities. She could sit for up to 90 minutes, drive up to 40 minutes and stand for about 30 minutes. She could walk to the stables. She found bending painful. Picking up a washing basket hurt her back. She was able to do light cleaning. Her mother helped her with heavier household chores such as mopping and sweeping. The plaintiff occasionally cleaned the bathroom. She was able to make beds and wash clothes. She did the cooking and loaded the dishwasher. She was unable to do any gardening or raking. The plaintiff said that she was always busy. She would rise at 6.30 am, get her daughter ready for school and take her there. She would then come home and attend to her horses before cleaning the house.
Dr Flahive found that the plaintiff was suffering from non‑specific low back pain which was temporally associated with the motor vehicle crash. He recommended more exercise as he did not consider that she was participating at a level that would result in significant improvement in her symptoms. He thought her pregnancy would affect her report of symptoms given that non‑specific back ache was common in pregnancy. He accepted that there were no significant inconsistencies on presentation. The plaintiff described a significant ongoing disability, but he considered that there was room for considerable improvement and did not expect permanent disability.
In his more recent report Dr Flahive noted that the plaintiff continued to be troubled by constant left‑sided low back ache exacerbated by activities such as lifting, vacuuming, climbing stairs and horse riding. Once or twice a week she would have bad episodes lasting about two hours. Other aggravating activities included using a wheelbarrow when feeding the horses and lying on her left side. A couple of times she experienced numbness and tingling in her left leg. The plaintiff reported that she could sit for about 2 1/2 hours and could stand for most of the day. She had no problem walking. She was able to bend, but with discomfort and limitation. She was able to lift her son who weighed about 10 kg. She was able to do household chores, but not all at once. Her mother helped out by looking after her young son three days a week for half a day and assisting with ironing, mopping and vacuuming. The plaintiff did not do any gardening. Dr Flahive found the plaintiff to be significantly overweight. Radiological investigation had shown no significant pathology to account for her symptoms.
Dr Flahive was of the view that the plaintiff retained the capacity to return to work as a shop assistant on a full‑time basis. She also retained a capacity for normal domestic duties and social activities. He recommended an active exercise programme aimed at improving strength and endurance and helping her to reduce weight. He recommended analgesic medication for symptom relief. He was of the opinion that a full recovery was likely.
In his evidence Dr Flahive stated that the plaintiff's activities, including the care of her 14‑month‑old son, made significant demands on her lumbar spine. He thought that although she may be symptomatic, she had a capacity to perform all the activities required for full‑time work. There was no pathology or structural abnormality which would prevent her from doing her pre‑accident work as a night‑filler three to six hours at a time. His opinion was based on the history given to him and upon his observation of objective signs of activity such as callusing of the heels and knees and the absence of any nerve root irritation. He took into account her ability to care for her children and her horses. By reference to the plaintiff's résumé Dr Flahive said that there was little to indicate objectively that she did not have the capacity to undertake pre‑accident office work. He considered her fit for such work on a full‑time basis.
Notably, the plaintiff was not cross‑examined on behalf of the defendant in relation to her statements to Dr Flahive. Nor did the plaintiff's counsel suggest that Dr Flahive's history was not accurate. No submissions were made by either side as to the probative effect of statements made to Dr Flahive by the plaintiff. While some of the history given to Dr Flahive accords with the plaintiff's evidence and can be taken to be so proved (if accepted), to the extent that the history, as opposed to the clinical findings, is not proved it is necessary to decide whether, and if so, the extent to which, Dr Flahive's opinion is admissible. By the same token, the plaintiff's case is not augmented by her statements to medical examiners (be they her own or the defendant's) which are not verified by her evidence.
It seems not uncommon in actions of this kind for litigants to conduct trials on the basis that what a medical witness reports of what he or she has been told by the plaintiff may somehow supplement the plaintiff's evidence of the effects of the subject injuries. Formal objection is rarely taken to medical evidence of opinions based on the plaintiff's history (which is generally the case in soft tissue injury claims), even when the history has not been proved by the plaintiff.
If a plaintiff's evidence of the effect of injuries does not verify the history on which the medical witness bases an opinion then there is a risk that the opinion will be inadmissible or given little weight. The task of the court is rendered difficult where a party disputes opinion evidence which has been admitted without objection, notwithstanding that the factual assumptions it makes are unproved. It is also difficult where a plaintiff gives evidence that does not verify all of what he or she has reported to an examiner, thereby rendering his or her own evidence incomplete and potentially devaluing supportive expert evidence.
In Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 the High Court (Dixon CJ, McTiernan, Kitto, Taylor & Windeyer JJ) held that hearsay evidence of a person's reported symptoms was not admissible, unless as part of the res gestae. Evidence of a history given to a medical examiner could be admitted as evidence of the basis of the examiner's opinion, but not as evidence of the existence of past experiences and symptoms of the person examined. Hearsay evidence does not become admissible to prove facts because the person is a physician (649).
The High Court also held that to have any weight the factual basis of the opinion had to be proved. Ramsay was followed in Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 62 ALR 85. In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 the Court of Appeal of New South Wales made it clear that that an opinion based on unproven assumptions is inadmissible: see also Eric Preston Pty Ltd v Euroz Securities Ltd [2011] FCAFC 11 [171]. Parties to litigation who are inattentive to the rule in Ramsay v Watson are likely to be forensically disadvantaged, a point made by Anderson J in Pollock v Wellington (1996) 15 WAR 1, 4, with respect to expert evidence of a person's capacity for work.

The claim for damages

Counsel for the plaintiff based his submissions on quantum upon a document entitled 'Plaintiff's Particulars of Damage' dated 29 June 2012 handed up in substitution for a similarly entitled document filed 23 June 2011. It seems to me that the substitution was made erroneously as the document handed up contained no reference to future treatment needs or special damages, these heads of damage being the subject of concessions by the defendant to which I will come. I will treat the second document as merely amending the original claims for past and future loss of earning capacity.
The only other head of damages to be assessed is non‑pecuniary loss.

Findings – Quantum

At the time of the crash the plaintiff was evidently in good health and able to maintain her residential property and the horses in her care. She was also able to work part‑time as a night‑filler for Woolworths, although she was only working for about four hours per week. She was able to participate in a range of physical activities, including horse riding and scuba diving.
Following the crash the plaintiff experienced symptoms consistent with soft tissue injuries to her neck and low back. Her evidence of her symptoms was not disputed. The medical witnesses accepted, for the purposes of their opinions, that there was a causal connection between the crash and the onset of symptoms. Whilst their evidence is not challenged in this regard, it is based on the plaintiff's history. It has not been explained in physiological terms what mechanism caused the soft tissue injuries, defined by Dr Slinger as bruising, tears or ruptures of the muscles, ligaments, joints or discs.
It is not evident from the facts of the collision as described by the plaintiff or the damage depicted in the photographs of her vehicle, that the plaintiff was jolted or otherwise subjected to sudden force of an accelerating or decelerating kind amounting to trauma. Indeed, as impacts go, the collision appears to have been a light one, the vehicles merely glancing each other. The medical evidence does not explain why the plaintiff who was, it seems, fit for shelf-stacking, horse riding and heavy gardening and home maintenance work prior to the crash, should have suffered a spinal injury in such a minor crash. There are no objective signs of injury. The radiology shows degenerative changes, not trauma.
Nevertheless, the evidence of the plaintiff and the medical witnesses, which has not been seriously challenged in this respect, nor contradicted, is that the plaintiff's initial symptoms were brought on by the crash. To what extent her ongoing symptoms are crash‑caused is not so clearly demonstrated, the only diagnosed aetiology being degeneration of the facet joints, consistent with age. There is no clinical explanation of chronicity. There is no evidence that but for the crash the plaintiff would not be suffering symptoms from degenerative changes in the lumbar spine, yet the defendant concedes that her ongoing symptoms are crash‑caused (ts 236).
The defendant admits that the plaintiff suffered injury as a result of the crash and required treatment (see pars 4 and 5 of the defence), but submits in closing that the plaintiff's left leg symptoms and their treatment were not crash‑caused. The left leg symptoms resolved four years ago and the residual symptoms are not disputed.
As to the nature of her injuries, the general description by Dr Slinger of soft tissue injuries is meaningless as a diagnosis, yet the defendant's expert Dr Flahive accepts the plaintiff's reports of her symptoms and that they are crash‑related, describing her condition as non‑specific mechanical low back pain. It is, of course, for the parties to set the field of their dispute. Whilst the cause and chronicity of the plaintiff's so‑called soft tissue injuries are unexplained, the court, despite its misgivings about whether the plaintiff's chronic low back pain can reasonably be attributed to a side‑swipe collision nearly five years ago, is bound to assess damages on the basis of what the parties put in issue and the evidence before it.
The defendant's position appears to be that he accepts that the plaintiff suffered a soft tissue injury to her neck which resolved within a short period of time with chiropractic treatment as the plaintiff has said, and that she suffered a soft tissue injury to her lower spine which continues to be symptomatic, but disputes that the left leg symptoms with which the plaintiff presented to Dr Deric‑Jovanovic six months after the collision were so caused. The defendant suggests that the left lower limb symptoms which were investigated by CT scan and MRI and which warranted referrals to Mr Lee and Dr Hamzah were due to some unrelated low back condition which had its onset after the crash. In any event, the defendant disputes that the plaintiff has been incapacitated for her pre‑accident work and contends that she not been unfit for any work for which she is suited, based on her past experience.
The plaintiff told the court that she attributed her initial symptoms of headache, neck ache and low back pain to stress occasioned by the crash, but sought medical review when these symptoms persisted. Dr Deric‑Jovanovic noted a stress reaction to the incident. Indeed, stress appears to have been a significant feature of the plaintiff's ongoing symptoms. Although no psychologist was called, I accept that psychological and emotional stress is capable of exacerbating symptoms of physical injury. The defendant takes the plaintiff as he finds her.
The plaintiff also told the court that her neck ache and associated headaches resolved within a short time, but that her low back pain persisted and was associated with shooting pain down her leg. When she was seen by Dr Deric‑Jovanovic on 2 April 2008 she reported a six‑month history of such pain. The plaintiff, however, in cross‑examination, accepted that her symptoms worsened prior to her seeing Dr Deric‑Jovanovic on the second occasion. She did not know what had aggravated her pain. The plaintiff accepted that following the nerve root sleeve injection and epidural injection by Dr Hamzah in late 2008 her left leg symptoms resolved, although she continued to have low back pain.
Even though Dr Slinger gave no significance to the lumbar CT appearances in April 2008, the successful outcome of Dr Hamzah's injections would appear to show that the plaintiff's left leg symptoms were consistent with 'a compression of the exiting L4 nerve root' as shown on CT. Mr Lee was not called to give evidence, and no point was taken in this regard by the defendant. The defendant's expert Dr Flahive did not address the issue of the cause of the leg pain.
The plaintiff bears the onus of proving any fact relevant to the issue of causation: Civil Liability Act 2004, s 5D. That provision is concerned with the legal or persuasive burden: Strong v Woolworths Ltd [2012] HCA 5 [64] (Heydon J). There is no authority to the effect that s 5D displaces the principle that where the plaintiff has been injured by an event caused by the negligence of the defendant and the defendant contends that some of the consequences are not causally related to it the defendant bears an evidential burden of showing another cause for them: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

In order for the defendant to contend that some of the plaintiff's alleged symptoms and disabilities were not crash-caused, the defendant must adduce evidence, or point to evidence in the plaintiff's case of that fact, sufficient to discharge its evidentiary burden. That burden being discharged, it would remain for the plaintiff to persuade the court on the evidence as a whole, and on the balance of probabilities of the nature and extent of her injury and loss.
The defendant having formally admitted that the plaintiff suffered injuries, and there being no evidence raising as it were an issue with respect to the causation of the left leg symptoms, I find no basis upon which to differentiate between her symptoms from time to time in terms of their relationship to the crash.
With respect to the plaintiff's residual symptoms, which no issue had been taken, the defendant's counsel merely submitted in closing that they were not incapacitating.
With respect to her domestic and recreational activities, I find on the evidence that the plaintiff has been compromised by her symptoms to the extent that they have diminished her ability to pursue her interest in horse riding which she is not able to tolerate for more than 15 – 20 minutes. Her symptoms would have rendered her care of the horses in her charge more difficult and less enjoyable, but she has not been disabled in that respect.
I am bound to accept on the evidence that with respect to domestic activities the plaintiff has found heavier housework difficult to the point where it has been reasonable for her to accept assistance from her mother. I am also bound to accept that her ability to carry out gardening and home maintenance activities which she performed prior to the crash has been reduced to some extent. The medical evidence does not prove an inability as such to do her household chores, merely occasional difficulty of varying degree. I note, however, that the plaintiff has been advised to avoid provocative activities.
In terms of the plaintiff's ability to work, I note that she continued to work for Woolworths for some time after the crash before ceasing in May 2008. Exhibit 6 shows that the pattern of the plaintiff's work did not change substantially until March 2008 when her earnings increased from about $90 (in the weeks that she worked up to that time) to higher amounts appearing to correspond with her training for work as a checkout operator. Her pay history from 1 July 2007 (gross) is as follows:

Pay Date

Amount

4/07/07

$69.62

18/07/07

$171.14

25/07/07

$168.82

08/08/07

$93.64

15/08/07

$90.82

22/08/07

$90.62

29/08/07

$92.64

12/09/07

$89.21

19/09/07

$95.25

03/10/07

$89.21

14/11/07

$91.83

28/11/07

$95.65

05/12/07

$92.64

26/12/07

$90.82

27/02/08

$91.06

19/03/08

$173.88

26/03/08

$306.72

02/04/08

$260.63

09/04/08

$420.09

16/04/08

$255.37

23/04/08

$337.52

30/04/08

$461.50

07/05/08

$92.49

14/05/08

$406.74

On the evidence, by reason of the crash‑caused low back pain the plaintiff suffered a loss of earning capacity as a night‑filler. This loss of capacity was a cause for her ceasing work at Woolworths in that it materially contributed to her ceasing work and thereby resulted in financial loss: see Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.
The plaintiff was working about four hours per week. I am prepared to accept that she was looking to increase her hours. However, she was limited in how much work she could do by her husband's work and business commitments and the need to care for her daughter and the horses in her charge. Had she not been injured she would not, I find, have returned to full‑time work before the birth of her son in January 2011.
I am not satisfied on the evidence that she would have earned a profit from agisting horses or as a riding instructor, if and when she qualified as such. There is insufficient evidence to support such a conclusion. No claim for loss of opportunity was pleaded. The evidence adduced does not satisfy me that her equestrian activities were more than a hobby. Even if I accepted that she wanted to develop a business, on the evidence she could not lawfully agist more than two horses. Moreover, the evidence does not prove that the plaintiff is or has been unable to look after horses. The evidence of her chance of earning money from equestrian activities does not permit a finding of any financial loss.

Assessment of damages for loss of earning capacity

The plaintiff claims past economic loss at $10,000 per annum (roughly $200 per week) from the date of the accident to the birth of her son in January 2011, approximately three years, plus interest, in round terms, $40,000. Counsel conceded that the plaintiff had not been totally unfit for work in that time and submitted, in the alternative, a global assessment.
The plaintiff's particulars and submissions are based on arbitrary assumptions and are difficult to reconcile with the undisputed facts of the plaintiff's work history before and after the crash, not to mention the medical evidence. By the same token, the defendant's submissions are of little assistance, counsel submitting that a global assessment of $10,000 would be 'about right', without any real factual analysis, or indeed any explanation of the basis of the concession.
It is implicit in the plaintiff's submission that she is now fit for full‑time employment, a concession rightly made on the evidence, but needs to make a graduated return to work due to the length of time she has been out of the workforce. Of course, if the plaintiff is fit now then she has been so for some time as, on her evidence, her condition has been fairly stable since the amelioration of her left leg symptoms in 2009. I note that no loss is claimed from the birth of her son in 2011 to date.
With respect to future economic loss the plaintiff submits a claim for $100,000 based on an average loss of $20,000 net per annum for five years, the time within which, it is submitted, the plaintiff can be expected to make a graduated return to full‑time work, assuming an earning capacity of $40,000 net per annum. A graduated return to work approach is put forward on the basis that the plaintiff has not worked full‑time since 2001.
The period of five years is, it seems to me, totally arbitrary, no witness having given evidence that the plaintiff will take that long, for any reason, to return to full‑time employment. That observation, of course, highlights the absence of evidence from which one could infer the likely future course of symptoms and disabilities which the plaintiff professes to have presently.
In this regard I note that it was only Dr Slinger who said that the symptoms may be regarded as permanent given the length of time they have persisted. Dr Hamzah and Dr Flahive expect improvement. While there is no science in either prediction, I am not at all persuaded by Dr Slinger's evidence to find that the plaintiff will have symptoms due to crash‑caused injury indefinitely. Moreover, common sense dictates the contrary.
The court is bound to determine to what extent the plaintiff would have exercised her earning capacity, but for her injuries, and the extent to which she has been able to do so: Paul v Rendell (1981) 55 ALJR 371.
Based on her history of employment by Woolworths I find that had the crash not occurred she would have continued part‑time work doing such hours as suited her family situation, but probably no more than 10 per week. As a consequence of her injuries the plaintiff ceased work in mid‑May 2008. She gave birth to her second child in January 2011. She would have ceased work sometime prior to her confinement. Just as before the crash, she would not have worked every week. Taking a broad‑brush approach, I would allow her claim for past loss of earning capacity at $220 per week (10 hours at $22) for two and a half years (130 weeks): $28,600. Interest on that amount should be allowed at the average cumulative rate of 3% from mid‑May 2008 to mid‑November 2010 (130 weeks, $2,145.00), thereafter at 6% (90 weeks, $2,970), total $5,115.
There is no claim for loss of superannuation contributions. If there were I would not make a further allowance for it. It is subsumed by the negative contingencies inherent in the assessment of past loss and reflected in the allowed weekly rate.
As to the future, I am satisfied on the evidence of the plaintiff and the medical witnesses that the plaintiff is fit for full‑time work for which she is suited by her previous experience. No return to work has been attempted. This suggests that it is not convenient or in her interests to do so. The plaintiff may only be compensated in damages to the extent that her loss of capacity due to injury is productive of economic loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340. I am not satisfied that the plaintiff requires a graduated return to work for any reason other than that she has been away from full-time work for many years. That is the situation she would have been in even if the crash had not occurred. Otherwise, I find that the plaintiff is not presently incapacitated for work, as appears to be conceded by her. I make no allowance for future loss.

Assessment of damages for gratuitous services

The plaintiff claims a need for personal services of five hours per week from the date of accident until February 2012 when she separated from her husband and thereafter 10 hours per week at a rate of $30 per hour and amounting in total to $35,850, plus interest. In respect of future loss the plaintiff claims loss over a period of five years at an average rate of five hours per week, calculated at $25,000 on the basis that her need for assistance will diminish to nil over a period of five years.
The defendant disputes that any need is proved, but submits in the alternative that a proper assessment of both claims would not exceed the statutory threshold ($6,000).
The threshold question of fact is whether the injuries have necessitated services of a domestic nature which, were they not provided gratuitously, would have been obtained at cost to the plaintiff: Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. The services in question are those performed by the plaintiff's parents. They are in the nature of domestic assistance that one would expect to be offered by parents to an adult child in the plaintiff's situation. Section 3D of the Motor Vehicle (Third Party Insurance) Act 1943 applies, even though it attracted no comment by counsel. It precludes damages being awarded for services that would have been provided even if the plaintiff had not been injured. There seems to be no dispute that $30 per hour is an appropriate rate.
The plaintiff accepted that if she were working full‑time, or had the money, she would pay someone to do heavy garden and maintenance tasks. The plaintiff also accepted that her parents helped her when her first child was born. They were then working, but had since ceased work. Since the separation they have been visiting the plaintiff as often as five days a week.
The evidence is scant. During the trial when Mr Bradford indicated that he did not intend to call the parents I expressed some surprise. Mr Bradford observed in answer that the plaintiff's evidence had not been challenged as to the number of hours per week she was helped. Whilst there was no contradiction as such, the questioning of the plaintiff in cross‑examination, in my opinion, clearly took issue with the claim for services. In closing submissions Mr Jarman contended that to the extent to which the plaintiff's husband and parents have assisted with domestic chores, they did no more than they would have done in any event.
The medical evidence is of no real assistance.
On the evidence I am not able to find that the plaintiff has required compensable services to the extent claimed, but I am satisfied that some assistance has been reasonably necessary. Doing the best I can, I would allow $60 per week (two hours at $30) from the date of the crash to the date of judgment on the basis that, irrespective of their effect on her capacity for work from time to time, the injuries have compromised the plaintiff's capacity to perform heavy domestic work to the extent that it would have been reasonable for her to have obtained paid assistance for around two hours per week. At $60 per week the loss to date (245 weeks) is $14,700. Interest at the cumulative rate of 3% is $2,078. This assessment takes into account the assistance the plaintiff would have received from her husband and parents in any event, including extra assistance given following the birth of her second child last January and the separation this February.
As to the future, based on Dr Hamzah's opinion, which I accept, that the plaintiff will improve with weight loss and exercise such that she will no longer require assistance, I allow $3,120, being $60 per week for one year. Although no time frame can be put on further recovery, the clear impression I formed from the evidence of Dr Hamzah, who has had the closest therapeutic relationship with the plaintiff of any of the witnesses, is that her recovery is in her hands.
I would add that my allowance for future services should not be viewed as inconsistent with my decision not to allow future loss of earning capacity.

Assessment of damages for future treatment

A need for future treatment is pleaded and claimed at $10,000. The defendant would allow $1,000. Neither figure has been given any respectability by reference to the evidence.
The evidence of the plaintiff is that she attends regularly for physiotherapy and takes simple analgesics as required. She does not appear to require ongoing medical treatment as such. In this regard I take into account the evidence of Dr Deric‑Jovanovic as to the plaintiff's attendances for general practice consultations and the reasons for them.
The medical evidence does not support a claim for physiotherapy except for occasional exacerbations of symptoms. Weight loss, exercise and the avoidance of provocative activities would appear to be the best means of obtaining further amelioration of symptoms which now appear to emanate from age‑related degeneration of the lumbar facet joints.
Unassisted by the evidence and the submissions of counsel as to quantum, I am not able to assess a figure higher than that conceded by the defendant of $1,000 and would allow that sum.

Assessment of damages for non-pecuniary loss

I have made findings as to the nature and extent of the injuries. The defendant submits a proportional severity of injury of 9 ‑ 10% of a most extreme case. The plaintiff submits 15 ‑ 20%. Assuming that the plaintiff's ongoing symptoms are crash‑related, I find on the evidence of Dr Hamzah that those symptoms are likely to ameliorate. I do not accept that permanent disability is likely and would reject as unsubstantiated the opinion of Dr Slinger that, the symptoms having persisted this long, they are likely to be permanent.
In my view, based on the findings I have made herein as to the nature and effect of her injuries, the proportional severity of the plaintiff's injuries by reference to a most extreme case I assess at 10%. Applying the amounts prescribed for the purposes of s 3C, I assess damages in the sum of $18,400 net of the statutory threshold.

Special damages

A schedule dated 25‑June 2012 was handed up at trial. The claim for special damages is for out‑of‑pocket treatment expenses of $4,714.01, the amount of the Medicare notice of charge dated 10 June 2011, being $2,426.55, and other expenses of $5,426.55. No primary documents are in evidence. The Medicare notice was not tendered. Much of the claim is for treatment by practitioners who were not called, treatment about which little or no evidence was received.
In closing address (ts 240) counsel for the defendant disputed the claim for a bed ($3,719) on the basis that related to pregnancy. The expenses claimed with respect to Mr Lee and Dr Hamzah were also disputed on the basis that Dr Hamzah's treatment related to symptoms from the disc bulge and no reason was shown for the referral to Mr Lee. A claim for $2,275 for physiotherapy was disputed on the basis of Dr Slinger's view that physiotherapy was not indicated except at times of symptomatic exacerbation. Curiously no point was made with respect to claims for chiropractic treatment, gym membership, and horse agistment and training.
Otherwise, counsel for the defendant merely submitted that it was 'very hard to identify what the cost would be for past treatment'. He went on to say that a 'global' amount of $5,000 would be 'more than sufficient', without specifying the factual basis of that concession. It is not clear whether or not the concession includes the Medicare charge in respect of medical treatment expenses for which benefits were paid which are liable to be recovered pursuant to the Health and Other Services (Compensation) Act 1995 (Cth).
Special damages cannot be assessed in the absence of evidence of loss or agreement. Counsel for the plaintiff said he would inform the court of the extent of any agreement reached as to special damages (ts 265). On 4 July 2012 the solicitors for the defendant wrote to my associate indicating that special damages were agreed as to quantum, but not liability, subject to correction of four amounts claimed in annexure A of the schedule (past medical expenses).
On 26 July 2012 my associate wrote to the solicitors for the plaintiff pointing out the position taken by the defendant and asking whether the plaintiff wished to be heard as to the recoverability of the claimed expenses. By letter of 6 August my associate was informed that the plaintiff disputed three of the four points made by the defendant and conceded the other, but did not wish to be heard further. Subsequently, the court received a letter from the defendant's solicitors enclosing a copy of the Medicare notice. The letter confirmed that the amounts in the notice were not in issue, but his liability to pay them as damages was.
But for the defendant's concession, the claim is liable to be dismissed as unproved. The parties, however, are seemingly content for the court to do the best it can to sort out the mess that is the special damages claim unassisted by evidence or sensible submissions. I am somewhat disinclined to do so, having regard to the unsatisfactory manner in which this head of damage has been dealt with by both sides, but in the interests of finality, and to the extent implicitly permitted by the position taken by the defendant, I find as follows.

Annexure A: Past medical expenses

I disallow the sum of $73 claimed twice (Mr Lee, 3 September 2008).
I reduce the claims for Mr Lee's invoice of 9 March 2008 by $33, Mr Lee's invoice of 13 May 2008 by $99.50 and Perth Radiological Clinic invoice of 15 August 2008 by $340.65, as those amounts are claimed as part of the Medicare recovery.
I allow the chiropractic expenses. Although there was no evidence from the chiropractor Mr Armstrong, no point made about him not being called as a witness and the plaintiff was not challenged in respect of the need for this treatment. No submission was made by the defendant that the chiropractic expenses were not recoverable. So, although the claim for special damages with respect to these expenses has not been proved properly, by reason of the way in which the defendant has dealt with this issue, I take it to have been conceded.
I allow the medication expenses on the basis of the evidence of the plaintiff and her doctors, none of whom was challenged as to her need for such.
I allow the expenses of treatment by Dr Hamzah, review by Mr Lee and the radiology on the basis of my findings as to injury. On the evidence of Dr Deric‑Jovanovic I am satisfied that the referral to Mr Lee was appropriate. I am satisfied on the evidence of Dr Hamzah that his treatment was reasonable and crash‑related.

Without evidence I do not allow the acupuncture session with Dr Inoue on 16 August 2011. The plaintiff gave evidence that acupuncture by a chiropractor relieved her neck symptoms within a short time of the crash, but did not give evidence that she needed or had acupuncture in 2011.
I allow the physiotherapy expenses of Mr Sheehan. The plaintiff was referred for physiotherapy by her general practitioner. Her evidence was that she has physiotherapy when required (ts 50). Dr Slinger said that physical therapy was appropriate to relieve a severe exacerbation of symptoms (ts 102). The defendant did not put to the plaintiff or any expert witness that her physiotherapy treatment was unreasonable or not necessitated by her crash‑related injury.
I am satisfied that all of the Medicare benefits listed in the notice of charge are for crash‑related treatment reasonably required.
With respect to annexure A, I allow $4,107.86 for out‑of‑pocket expenses. Interest on that amount at an average of 3% for five years is $616.18. Adding $2,426.55 for the Medicare recovery, the total is $7,150 in round terms.

Annexure B: Miscellaneous expenses

Despite the failure of the defendant to make submissions against any items claimed in this annexure apart from the bed, I consider that this claim should be approached on a different basis from the claim for treatment expenses which was consistent with the medical evidence as a whole, although not strictly proved. Again, with respect to this aspect of the claim for special damages no primary documents have been received in evidence.
I am not satisfied that the evidence proves a need for gym membership (claimed at $716.55). Although the plaintiff has been advised to do exercises to improve her strength and fitness, she is capable of exercising at home as she has done. Joining a gym is her choice. The plaintiff was a member of a gym before the crash, according to what she told Dr Flahive. It is not an expense for which the defendant is liable to compensate her.
There is no evidence that the plaintiff's injuries necessitated her incurring expenses for 'plaiting and braiding horse' ($50) or 'horse training and agistment' ($825). I disallow them.
The claim for lawn‑mowing (14 June 2010, $50) does not make sense in isolation. I do not know what necessitated this expense on this occasion prior to the plaintiff's separation. I disallow it.
There is no evidence to support the claim for the cost of a new bed ($3,719) on 18 December 2010. I disallow it.
I disallow the claim for $66 for the cost of hire of a 'spin bike'.
Accordingly, no allowance is made at all for the items in annexure B.

Summary

In summary I assess damages as follows:
Past loss of earning capacity:  $28,600
Interest on past loss of earning capacity: $5,115
Past gratuitous services:  $14,700
Interest on past gratuitous services: $2,078
Future gratuitous services: $3,120
Future treatment: $1,000
Non‑pecuniary loss:  $18,400
Special damages: $7,150
TOTAL:$80,163
Reducing this amount by 25% for contributory negligence, I allow the plaintiff's claim in the amount of $60,122.25.

Year	Employer	Gross income
2005	Woolworths	$2,014
2006	Woolworths	$15,487
2007	Woolworths	$9,387
Tania Clayden	$1,683
2008	Woolworths	$4,2271
Tania Clayden	$1,197

Pay Date	Amount
4/07/07	$69.62
18/07/07	$171.14
25/07/07	$168.82
08/08/07	$93.64
15/08/07	$90.82
22/08/07	$90.62
29/08/07	$92.64
12/09/07	$89.21
19/09/07	$95.25
03/10/07	$89.21
14/11/07	$91.83
28/11/07	$95.65
05/12/07	$92.64
26/12/07	$90.82
27/02/08	$91.06
19/03/08	$173.88
26/03/08	$306.72
02/04/08	$260.63
09/04/08	$420.09
16/04/08	$255.37
23/04/08	$337.52
30/04/08	$461.50
07/05/08	$92.49
14/05/08	$406.74