Ross v Insurance Commission of Western Australia
[2008] WADC 67
•9 MAY 2008
ROSS -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2008] WADC 67
| Link to Appeal : |
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| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 67 | |
| Case No: | CIV:1667/2006 | 26-28 FEBRUARY 2008 | |
| Coram: | STEVENSON DCJ | 9/05/08 | |
| PERTH | |||
| 40 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | ANASTASIA ROSS INSURANCE COMMISSION OF WESTERN AUSTRALIA |
Catchwords: | Tort Motor vehicle accident Claim by pedestrian Unidentified driver Unidentified witness Nominal statutory defendant Whether accident occurred Whether nominal defendant driver failed to use headlights Jones v Dunkel Adverse inference drawn Provisional assessment of damages Contributory negligence Turns on own facts |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 s 3C(3) and s 7(3) |
Case References: | Jones v Dunkel (1959) 101 CLR 298 Suvaal v Cessnock City Council [2003] HCA 41 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant
Catchwords:
Tort - Motor vehicle accident - Claim by pedestrian - Unidentified driver - Unidentified witness - Nominal statutory defendant - Whether accident occurred - Whether nominal defendant driver failed to use headlights - Jones v Dunkel - Adverse inference drawn - Provisional assessment of damages - Contributory negligence - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 s 3C(3) and s 7(3)
(Page 2)
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : Mr K J Bradford
Defendant : Mr D R Sands
Solicitors:
Plaintiff : Bradford & Co
Defendant : Talbot Olivier
Case(s) referred to in judgment(s):
Jones v Dunkel (1959) 101 CLR 298
Suvaal v Cessnock City Council [2003] HCA 41
(Page 3)
- STEVENSON DCJ:
Introduction
1 In this action the plaintiff sues the defendant pursuant to s 7(3) of the Motor Vehicle (Third Party Insurance) Act 1943 on the basis that the alleged accident was caused by the negligent driving of a motor vehicle by an unidentified person.
2 The plaintiff contends that at about 8-8.30 pm on Thursday, 24 November 2005 she was struck by a motor vehicle while walking home alone. She was returning from her local shopping centre and attempting to cross Princess Road, Balga. The defendant denies an accident occurred in the manner, place or time alleged by the plaintiff.
3 At the commencement of the trial the plaintiff was granted leave to amend her statement of claim to include two further particulars of negligence, namely that the accident occurred as a result of the negligent driving of a motor vehicle by a driver who:
"5.7 failed to use the headlights of his vehicle to improve his lookout; and
5.8 failed to alert the plaintiff to the presence of his vehicle by using his headlights."
4 In the course of the trial the preceding particulars of negligence in par 5 were either abandoned by the plaintiff or rolled up into the additional particulars at par 5.7 and par 5.8 of the statement of claim because of the way the case was put. Counsel for the plaintiff, in my view quite properly, put the plaintiff's case on the basis that if the plaintiff satisfied the Court on the balance of probabilities that the accident occurred and that she looked left and right before crossing the road, then the case must ultimately be determined on the question of fact of whether the motor vehicle which struck the plaintiff had its headlights on or off.
5 Notwithstanding the various heads of claim for damage contained in the statement of claim, the plaintiff's counsel informed the Court in his opening address that, if the plaintiff proved liability, then only general damages, damages for the cost of future medication and damages for past medical expenses were claimed.
(Page 4)
The plaintiff's evidence-in-chief
6 The plaintiff was born on 26 April 1965. She is now 43 years of age. Although presently married, she has been separated from her husband for about four years and lives with her parents. At the time of the accident she was living on her own. She completed Year 11 at Hamilton Senior High School and then left to undertake a business course. She worked for about eight years at the Water Authority as a receptionist and also undertook clerical duties involving mail despatch and accounts payable.
7 The plaintiff was injured when crossing a road to go to school at the age of 9 years. She was struck by a motor vehicle on a crosswalk and said on that occasion "the man did stop". She sprained her right arm and recovered from the accident. She was next involved in a motor vehicle accident in 1987 (age 22). She was driving and attempted to turn at an intersection when her car was struck by another vehicle. She did not make a compensation claim.
8 In 1989 she informed her employer that she was getting neck pain which was then made worse by nine months of chiropractic treatment (three times per week). At about this time she was diagnosed as having scoliosis. As a result she worked part-time for about three years before she settled a worker's compensation claim against the Water Authority in 1992 for about $10,000.
9 After leaving the Water Authority in 1992, the plaintiff stayed at home and her husband supported her. The marriage lasted for about eight years until she remarried on 14 November 1999. She has been on a disability pension since April 1998 because of "neck, lower back region problems and psychiatric problems including major depression, anxiety and panic disorders". The plaintiff is still on medication for the same symptoms which have continued since April 1998. According to her, the medication takes her "pain away… and it also helps [her] be more stable" but the neck and back pain has never gone away completely. Prior to the accident in November 2005 she was taking codeine phosphate for "chronic muscular skeleton ligaments injury"; Murelax for severe anxiety; Dothep for depression; Talohexal Cipramol for depression; Kalma for panic attacks; and 5 mg Valium for sleeping.
10 The plaintiff described Thursday, 24 November 2005 as an "extremely hot day". She walked to her local shops at about 6-6.30 pm on her own. After buying some earrings she went home alone. At the time she was carrying her purse and a plastic bag which contained the earrings. It was a "very hot, still" evening and "very dark". According to Exhibit 5
(Page 5)
- the official time of sunset was 7.02 pm and the end of the evening civil twilight was 7.29 pm. The plaintiff's book of astronomical information did not contain any moon phase data for 24 November 2005. The plaintiff said she was wearing black shorts, a pink top with white trimming and white flat shoes.
11 Exhibit 4 contains a series of photographs which were taken to show the route the plaintiff took home, crossing over Gretham Road and then Princess Road where the accident occurred. Before crossing the first lane of Princess Road the plaintiff said she stopped, looked both ways, saw a four-wheel drive vehicle which she was able to observe easily because "his headlights were on". When this vehicle had passed she crossed the first lane of Princess Road to the island kerb.
12 According to the plaintiff she "was on the kerb on the edge of the island on a slight angle" in the middle of the road. She said she stopped again, looked left and right and "saw nothing". She then "proceeded to walk about three steps on an angle to cross the road to go on the footpath". She said she "did not walk straight across". After "five steps" she "felt something hit [her] very hard ... on [her] right buttock" and she was thrown two or three metres:
"I flew … pushing my hands again like I did when I was nine, and I hit the ground so hard and I hit my head."
13 The plaintiff said she "eventually got up" and "turned around and … saw a ute four-wheel drive". She said:
"I got myself up, I looked at him. He was still in the vehicle, it was dark, he had no headlights on."
14 According to the plaintiff she then walked back across Princess Road to a bus stop on the side of the road that she had just come from:
"Then he turned around and parked on that side where I was … and he put his spotlight on and that’s when I noticed the colour of the ute was cream."
15 The plaintiff said the spotlight was located "at the back … in the middle" of the vehicle. The spotlight "was quite beaming" and "that's how I noticed the colour". The effect of this evidence is that the plaintiff only noticed the colour of the vehicle because the driver activated the spotlight and that, if he had not done so, it was too dark to observe the colour. By this stage the driver had done a U-turn in front of two
(Page 6)
- streetlights on the same side of the road, the closest being within 20 metres. It is difficult to understand why the driver would have operated the spotlight in the way and manner suggested without immediately turning his headlights on (assuming they were off, which is the plaintiff's contention). The plaintiff later gave evidence that the driver turned the headlights on.
16 According to the plaintiff the driver of the vehicle then came up to her and said "I am sorry, I didn't see you". Apparently he did not say anything else and just stood there looking at her. These appear to be the only words directly attributed by the plaintiff to the driver throughout the incident but, if they were his first words, then there was no inquiry if she was injured.
17 The plaintiff said "Seconds later, no more than a minute, a witness came and stopped". The person she described as "a witness" was male and driving a red car. He "was more reassuring and supportive and said that I'll be all right, and the other man stood back away from me". She did not expressly say if she asked or if he said he had actually seen the accident, but I infer he did not because of the time interval and her evidence generally. Hereafter I will refer to the alleged person who was driving the vehicle that struck the plaintiff as "the driver" and the person who arrived immediately after the accident as "the witness".
18 The plaintiff then asked the driver "for a pen and a cigarette, so he went to his car, and so did the witness, they followed each other". She asked them for their names and telephone numbers which they gave her. She did not say whether she was given a cigarette and if so whether she immediately smoked it in their company, which would have provided an opportunity for conversation. The driver then said to the witness: "Can you take her home? I’m in a hurry". The witness agreed. The plaintiff did not say that she said she needed a lift home or had asked for a lift home.
19 The plaintiff said later that evening her mother (who came over to the plaintiff's place) took her to Royal Perth Hospital where she reported that her buttock was very sore, as were her arms, legs, head and her lower back. She was examined and discharged but said the next day her right buttock was "bloated like a soccer ball" and that she had a large cut on her right buttock. Because her general practitioner was on holidays, she saw Dr Woodhall at the same surgery on 29 November 2005 for the purpose of dealing with the pain associated with the injuries from the accident. He prescribed Panadol Forte and Tramadol 50 mg (both strong analgesics
(Page 7)
- according to Dr Di Camillo), which was in addition to her medication at the time.
20 The plaintiff was subsequently admitted to Royal Perth Hospital on 14 December 2005, after which she started bleeding from her right buttock wound. She remained there until 29 December 2005. In this period she underwent two surgeries which included a skin graft from her right thigh to assist recovery of her right buttock wound. The plaintiff said she received assistance from Silver Chain Nursing three times a week for about nine months and that this finished in about October 2006. She said she went to Royal Perth Hospital five times for follow-up treatment in respect of the surgery.
21 In the course of her evidence-in-chief I was asked to view the injury to the plaintiff’s right buttock. In view of the submission made to me by her counsel, I offered to do this in my chambers but Ms Ross confirmed that she was prepared to give the view in court and that this is what she wanted to do. Accordingly, Mr Sands, counsel for the defendant and I viewed the plaintiff's injury and scar to her right buttock in the courtroom. Four photographs attached to Mr Briggs' report of 3 January 2007 are consistent with the plaintiff's injury which I observed on the view. In summary, the plaintiff has an internal circular gaping wound on the upper part of her right buttock with associated scar tissue.
22 The plaintiff said that as a result of the injury and subsequent surgery she did not feel confident about herself and that she now wears longer tops because in her opinion the injury is noticeable. She implied she no longer goes to the beach. She said she gets "stabbing" pain, pinching and burning sensations from the injury, more in the winter. She is scared to bend her knees for fear of splitting the donor site. She can not lie on her back because "it makes a funny noise…like a flapping noise". She still takes medication for her symptoms. She has noticed a difference in the extent of her neck and back pain symptoms since the accident and, in particular, she cannot walk as far and as fast as she did prior to the accident. She also described a phenomenon which she said causes her body to drop like a "cripple" on one side and that she has difficulty getting back up. She always goes straight home to lie down when this occurs. She described her present symptoms as tightness in her neck and at the base of her shoulder, that she still gets stabbing pain in her neck and that her headaches are more frequent since the accident. She said the pain wakes her at night and that in the last six months she has suffered from severe pain. She uses self-help including meditation and prayer to cope.
(Page 8)
23 According to the plaintiff, prior to the accident she was taking on a daily basis six to seven codeine tablets, Panadeine Forte, and Brufen 400 mg. Since the accident, she says she has been on additional medication which she described as eight codeine phosphate and Tramadol 200 mg once a day (Dr Di Camillo, in his report of 26 September 2006, refers to the addition of Tramadol 50 mg and Panadeine Forte as the oral analgesics which were prescribed to take account of what he described as the plaintiff's "extra pain").
The plaintiff's evidence in cross-examination
24 The plaintiff was subjected to lengthy cross-examination during which two witnesses were interposed. In cross-examination, she described the medication she was on at the time of the accident. She said she was "so used to the medication" that she was very aware of its effects which she described as having a "calming effect". She took her medication on the day of the accident, which included seven codeine phosphate, two every three to four hours. She changed from Panadeine Forte to codeine phosphate about 10 years ago, after she started on a disability pension in April 1998. In response to questions about her speech, she said the medication did not affect her speech but she had false teeth and that her severe anxiety in particular affected her speech at times.
25 At the beginning of her cross-examination the plaintiff said she had no difficulty in remembering what happened at the time of the accident. In particular, when asked if she had any difficulty recalling what happened on 24 November 2005 she said: "No. Maybe because it was very dark".
26 The plaintiff said she took a different route to go to the shopping centre from the way she returned home. She considered this route to be quicker and shorter. She used Exhibit 4(A) to describe the route she took over Gretham Road towards Princess Road, which involved walking diagonally over Gretham Road and across the corner of the verge near the tree towards Princess Road. She stopped at Princess Road and looked left and right "as we have all been taught as young children" before crossing the first lane of Princess Road at an angle "to get onto the island" in the middle of the road.
27 Before crossing Princess Road the plaintiff said she saw a "big four-wheel drive" pass her which, after much reconstruction, she said came from her right side. I note the existence of this vehicle was not mentioned by the plaintiff in her accident report to the police, or by description in her insurance statement. Her evidence was that she walked
(Page 9)
- "diagonally" across Princess Road at an angle and "stopped there on the kerb" in the middle of the road and again looked left and right. Obviously, although the plaintiff said she looked left and right, she did not see the vehicle which apparently struck her within three steps of looking. It is not immediately apparent why the plaintiff would have looked right, as she had already crossed over the first lane of the road and any relevant traffic would have been coming from her left. Her direction of travel was at an angle so she would have been facing right in any event.
28 The plaintiff's oral evidence in chief, and in cross-examination on more than one occasion, was that she had stood on the island kerb in the middle of the road. But when it was put to her, based on her evidence to this point in time that she had stepped onto the brick paving area of the island her response was: "Honestly to tell you, I don't remember, but I don't think I did". On further questioning, the plaintiff said she did not step onto the brick kerbed area depicted in Exhibit 4(f) as far as she could remember. Later, during cross-examination about the content of her written report to the police, the plaintiff seems to accept that she did step onto the middle verge based on her interpretation of what she wrote. Her evidence on this issue was, to say the least, not clear and it was certainly not convincing one way or the other.
29 The plaintiff was then cross-examined by reference to her sworn answers to interrogatories made on 14 September 2007. In her answer to the first interrogatory, the plaintiff said the collision occurred about 50 cm from the median strip on Princess Road. In evidence she maintained she "went around the kerb on an angle to cross the road" and said that her answer to the first interrogatory was incorrect and that "about three feet" was the true answer. Her explanation was that a mistake must have occurred.
30 She was then asked about her answer to the second interrogatory to the effect that she was "facing towards the footpath" just prior to the collision. In her oral evidence in court on this issue she maintained she was facing "that way" but indicated at an angle, before eventually conceding that she "was on an angle facing that way". On being pressed in relation to the incorrectness of this answer, the plaintiff said:
"To tell you the truth, I've never even seen this page before in my life ... I haven't seen these. I don't know what's going on."
(Page 10)
31 The plaintiff said she did not see or hear the vehicle which struck her and accepted that there was no reason to stop walking across the road because she did not see anything.
32 The plaintiff also disagreed with the answer she gave to the third interrogatory namely, "I was standing still" in response to the question of whether she was "walking or were you standing still at the time of the collision?" In oral evidence she maintained she was walking at the time of the accident (although she later gave evidence that she hesitated immediately before she was struck and did a slight turn to her left). Although she confirmed it was her signature at the foot of the page, she "did not know where the standing still came from" and regarded this as a silly thing to be doing.
33 During cross-examination about other answers in the interrogatories, the plaintiff said that the vehicle which struck her did not have its headlights on but did a U-turn and put a "spotlight" on her but "not his headlights". This was clarified by counsel in light of the plaintiff's initial evidence that the defendant driver on doing a U-turn had put his headlights on. The plaintiff's oral evidence on this issue was unclear and very unsatisfactory. I understand her final position to be that the defendant driver put a spotlight on and not his headlights. I note that in her statement to the defendant's insurance investigator she said "another car arrived and, just before this, the four-wheel driver turned on his headlights". Relevant to this issue also is the plaintiff's sworn answer to interrogatory 7 that she first saw the defendant's vehicle when it had "turned around and was on the opposite side of the road".
34 Notwithstanding the apparent inconstancies in a number of respects, the plaintiff accepted in cross-examination that she was aware at the time she swore the answers to the interrogatories that it was an important document to be used in these legal proceedings.
35 The plaintiff was then cross-examined in relation to her handwritten statement given to police on 28 November 2005 at the Mirrabooka police station, four days after the accident. Her original police report dated 28 November 2005 and signed by the plaintiff was provided to her from the police file which had been subpoenaed. The report is Exhibit 6 – pp 1 to 4. She said the reference in her description of the incident to "oncoming headlight on" was a reference to the motor vehicle which she saw coming from her right before crossing Princess Road. I reject her evidence in this regard. The reference to being "struck … on my right side of my upper leg" was, she said, intended to be a reference to her right
(Page 11)
- buttock. She said in response to questions concerning the description contained in the police report that "intuition" told her not to go straight across the road because "she felt something bad was going to happen". On further examination she said she "moved around the kerb – to the right and then I turned left" immediately before the impact occurred. She said the vehicle which struck her was coming from her left-hand side. She said that she obtained the names and telephone numbers of the drivers of both vehicles. Notwithstanding what she appears to have depicted in the "sketch of locality" in the police report, which shows her having walked on or along the median strip in the middle of the road, she said at some points in her oral evidence that she did not go onto the median strip.
36 The plaintiff's evidence was generally difficult to follow and, with respect, seemed adaptive to the issue which confronted her at the particular point in time. In my view it was given in a manner which was suggestive that it was being given as it occurred to her, rather than that she was narrating something she had experienced. Often, she felt it was necessary to explain her answers to justify the evidence, especially when no explanation was required or necessary. I found it necessary on more than one occasion to intervene to direct her about how she should approach the task of giving evidence. An example of how the plaintiff's attempts to reconstruct what happened for the purpose of explaining away a perceived difficulty or potential inconsistency between parts of her evidence can be found in the following passage of the plaintiff's cross-examination. Late in her evidence the plaintiff raised what she described as "a little U-thing" in response to counsel's questions seeking to understand how she was struck on the right buttock by a vehicle coming from her left if she was crossing the road at an angle:
"… the left side of your body was facing the oncoming traffic in that lane, wasn't it? – On the first or second step perhaps, yes. It must have been. And then I took a third – oh dear God. As I said, I went around the verge of the kerb. Something said, 'Don't go straight across the road', in my intuition. And then I took one, two steps near the kerb because I felt that something bad was about to happen or something said to me, 'Do not cross the road straight'. And then I took a little slight – on the third or fourth step I slightly turned to go onto the part and that's when impact happened. Yes, I did go straight one or two times – two steps, one or two steps, but the third or fourth step is when I verged to go like that.
(Page 12)
- So your evidence is now that you took one or two steps in a straight line across Princess Road? – As far as I can remember.
And then you took another step in a different direction? – Verge to go. It's like – I'll show you – one, two, three. Understand me? The impact happened then on the very last step.
You seem to be depicting by your left hand movement that your movement was towards your left, after the first two steps. Is that what you're saying? – Towards my left? What are you trying to say, sir? I just explained to you.
Yes, that's right? – I just said to you what happened.
What I'm trying to do is to put into words what your hand movements were, and your hand movements were ---? – Yes, this is the island ---
Just let me finish? – Sorry.
Just let me finish. Your hand movements were that you seemed to move to your left after you took the first two steps. Is that what happened? – Moved to my left?
Yes? – I'm moving around the kerb.
Well, which way did you move? – Right, and then I turned left.
I see? – You understand now?
I see. Well, I think I do? – That's when the impact happened."
37 The plaintiff was very defensive about her description in the police report of the circumstances of the accident. She volunteered that she had made mistakes, had written it quickly and that the language used was confusing. In her endeavour to explain the potential inconsistencies and inadequacy of the details contained in the description she said that she was still "shocked, very upset":
"This police report is disgusting. I must have been really shocked for about 2 or 3 weeks, or more. Would've been more."
38 I note the plaintiff completed the report on 28 November 2005, four days after the accident.
(Page 13)
39 The plaintiff maintained that both drivers "knew each other". She said this was the impression she got, in particular, because the driver of the vehicle which struck her said to the other driver that he was in a hurry and asked if he could take her home. She said the driver "was distant and very cold" towards her and "stood away from the light". The witness was "very comforting, supportive, and very assuring. He was really nice, a really nice man". Her evidence in this regard was:
"All right? – But to me, honestly to God, it seemed like they knew each other. I swear. I don't know. That's what I think. I could be paranoid. But they seemed like they knew each other. Why would he say, 'Oh, can you take her home? I'm in a hurry'.
Who's the man ---? – Obviously – 'I'm in a hurry', so he hit me. I'm the victim here. He's the criminal.
The man who took you home is the man in the red car? – Yes. He had – he was tall, blond hair. He knew right away. The other one was – I still remember what he looks like: Caucasian, curly hair down to here; Australian, early 30s. I don't have to read this. I can just tell you straight out, and this all – you know, people make mistakes out of shock and I can just tell you the story but I'm not looking at nothing.
All right. Now, going on with the statement, Ms Ross, you said:
'They both gave me false names and phone numbers, then one of his friends brought me home and they both said sorry, and they looked like they were in a hurry. I also noticed the driver did not have his headlights on'
? – Where are you reading that, sir?
I'm sorry. I'm reading your handwritten statement that you should have in front of you? – Yes, okay. Yes, I've got – we're up to as I got –
'What happened so I stopped crying and I was severely struck, hit. What happened – so did I – As I got up, a friend of his' –
That's 'his'; it's got to be 'his'. I must have been paranoid because for him to say, 'I'm in a hurry. Can you take her home?'
(Page 14)
- It sounded like they were friends. God knows, only God knows. 'Both stopped and asked me what happened'. I wrote this terribly:
'So did I, and I couldn't stop crying, as I was severely struck and severely bruised and sore'.
That's what I was telling the witness. I don't know what he is to him:
'I then got their names and phone numbers and they both gave me false names and phone numbers'.
They're criminals. Why would they give me false names and phone numbers?
I'll just ask you to read the rest of the statement out, because I read it but I'm not sure that you realised I was reading it. So could you continue reading it? – Because they know they were wrong. That's why.
Could I just ask you to read the statement; continue reading it? – Yes. 'Then one of his friends' – I keep saying 'friend' see. My intuition was saying, 'They know each other'. When they got the pen and the paper they chatted in his truck, the one that hit me, and they came both out and gave me a pen and a cigarette:
'Friend brought me home and they both said 'sorry' and looked like they were in a hurry'.
I should have said, 'It looked like he' – no, I worded this so wrongly, out of shock. It was only what – 28 November 05.
It was four days after the crash? – Four days. Of course I was still in shock and despair and grieving and crying and ---."
40 The plaintiff said both drivers wrote down their names and telephone numbers but that she lost one or both of the pieces of paper. She confirmed that the name "John Smith" and telephone number "9342-9603" that she wrote in the police report as the details of the driver involved in the accident were recorded on one of the pieces of paper. The plaintiff's evidence on this issue also was not clear:
"You had a pen and paper with you? – I didn't. I asked them for a pen and paper.
(Page 15)
- And they wrote it down? – They wrote it down, both of them. They gave them to me.
They gave it to you, yes? – And I gave mum – the police the phone numbers and the names.
Yes? – And they rang them and I lost one of them. I don't know which one. I'd lost one of the names of the person.
So there were two pieces of paper, were there? – Two pieces of paper.
One with John's ---? – Whether the police has got them, I'm not sure.
One with John Smith and a phone number? – Mm.
And that's – the reason why I say John Smith is that the name that's included in the police crash report? – Right. Was there another name I put down? Because being out of shock I would have lost it because if it's not down there I would have lost it.
Your evidence is that you were given two pieces of paper. One with the witnesses (sic) name and phone number, and one with the four-wheel drive driver's name and phone number? – Mm."
41 The plaintiff said she told the witness in front of the driver what had happened but that the witness said "absolutely nothing" about doing anything about the accident. Apparently none of the three people present had any discussion about reporting the accident to the police, and specifically the plaintiff did not raise the matter with the driver or the witness.
42 The plaintiff was then cross-examined in relation to a signed written statement she made to an insurance assessor on 3 March 2006. She was cross-examined about various inconsistencies contained in the statement compared to her evidence in court. Even before she was taken to any part of the statement, the plaintiff insisted that the assessor should have consulted her lawyer before speaking to her or at least, according to her, he should have said "Listen, Stacey, don't sign it. Consult your lawyer … if he was a true man". He visited the plaintiff on two occasions. The plaintiff then said she felt she was harassed because "he wanted to know everything there and then" even though she was still in shock. The
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- statement was signed on 3 March 2006, over three months after the accident.
43 The plaintiff was taken through the statement. She suggested, while defending the inaccuracies in the statement, that when she went to the scene of the accident with the insurance assessor there were two tyre marks on the kerb. No other evidence was given about this contention. I reject the evidence and accordingly make no finding in this regard. A major inconsistency with the plaintiff's oral evidence was the written statement that the driver had turned his "headlights" on just before the witness arrived. She did not make any mention in the statement of "spotlights at the back" as stated in examination-in-chief. As noted above, the statement records that the plaintiff walked "onto the traffic island". The plaintiff was unable to explain why she had a severely lacerated right buttock when her shorts were not ripped, but I accept this is possible.
44 During cross-examination the plaintiff said that the witness driver took her home, approximately 200 metres, and hardly said anything during the trip. He did not get out of his vehicle when they arrived. She said nobody was home and that at the time she was living by herself. She said she immediately called her mother and although she told her about the accident, she said she did not explain to her how it happened until the next day. She said both drivers wrote down on separate pieces of paper their names and telephone numbers, but that she did not recall whether she had the witness's piece of paper when she got home. She said that at the time of the accident that she was severely shocked and that she had a "deep long cut" in her right buttock. She indicated with her hands the length of the laceration which was about 10 centimetres. Her evidence in cross-examination was unclear as to when the swelling in her right buttock started. At one stage she said it must have started the next day.
45 The plaintiff said she made the decision to report the accident three to four days after it occurred. She said the police attempted to contact the defendant driver and said that her mother and brother also tried at a later time. The attempts were unsuccessful, but it was not explained in what respect (was there no answer, no number or somebody else's number). The plaintiff said in response to the note in the Royal Perth Hospital notes that she had walked home, that she did not think she was asked how she got home. She described her recollection of her examination at the hospital which involved her lying on her back but she said she did not recall whether she was rolled over. However, she said she did remember a dressing being applied to her bottom. Her evidence generally in relation to her admission and examination at Royal Perth Hospital on the evening
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- of the accident was unclear and in some respects inconsistent with the hospital notes. She did not recall if she was asked at the hospital where the motor vehicle struck her. She maintained that she told hospital staff that her speech was slurred because of her "anxiety and shock". The hospital notes record that she was "hit from left side by car". She described this as a mistake on the part of the recorder. Her response of course assumes that the recorder was referring to the point of contact as opposed to the side from which the vehicle came.
46 The plaintiff was cross-examined at length about whether she had been to the pain section of the Royal Perth Hospital before 17 February 2006. This was because the hospital record at Exhibit 9, p 30 suggested she had attended the pain clinic previously and was a known patient. Ms Ross maintained that she had not been to the pain section previously but explained that she did ask the plastic surgeon on her final visit for a prescription for Oxycodone and that he had given her one script (20 tablets). She said that during her surgery while in hospital she had been prescribed Oxycodone in place of the codeine which she was taking at the time of the accident. In contrast to her previous evidence about the accident, her evidence in relation to her medication and analgesia regime was very clear, coherent and precise.
47 In further cross-examination, the plaintiff denied that she "wanted more" Oxycodone or that she suffered hallucinations at any time as a result of the medication she was using. She said she sometimes had memory loss when she was "highly stressed or anxious". She said she hit her head on the road at the time of the accident.
48 On more than one occasion during her evidence it was necessary for me to ask the plaintiff to listen to the question and, if she was able to, answer it but not to use the document about which she was being cross-examined to work out the answer. She was clearly distracted by the various hospital notes and other statements made by her when giving her evidence and often asked the meaning of words or parts of the documentary material rather than answering the question put to her. In general, her evidence was imprecise, unclear and in many respects inconsistent in the various versions of the accident which she had given.
49 In view of the nature of this case and in particular because no independent witnesses to the accident are available, I paid careful attention to the way in which the plaintiff gave her evidence and her response, and reaction, to the numerous inconsistencies in the versions contained in the police report, her sworn answers to interrogatories and
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- her declared statement to the insurance investigator. The plaintiff was naturally defensive about the inconsistencies. She was quick to offer an explanation which was generally that she was still in a state of shock as a result of the accident. This was the principle explanation for the statements she made in her police report four days after the accident. With respect to the insurance statement, she was adamant that the investigator should have informed her that she should not have signed the document without first seeking her own legal advice, and she maintained she had not been given a copy of the signed statement. In respect of her answers to interrogatories, she protested at one stage that she had never seen the relevant page in her life, and that she did not know what was going on.
50 When confronted with her prior inconsistent statements, the plaintiff went through a process of reconstruction by reading out aloud (sometimes not always accurately) the relevant portion. She maintained that she did not need to have regard to these statements to know what happened, on occasions, when she was in an area of consistent evidence. When confronted with different versions, she was sometimes evasive and did not answer the question, and often resorted to diversion by asking a question of counsel herself. She volunteered reasons why something had or had not occurred or a reason why she had said something in an earlier statement which was inconsistent with her oral testimony. Often it was necessary to remind her to listen to the question and to answer the question.
51 I find that the plaintiff was not a reliable or persuasive witness. On occasions she attempted to confuse the position by giving irrelevant answers to the question. Often her answers were not responsive. I am satisfied the plaintiff is an intelligent woman and reject any submission that she did not fully appreciate the importance of her evidence being truthful or the exact meaning of the questions put to her. She was too concerned to understand what lay behind a question or where the question might be leading to be regarded as an open and frank witness doing her best to assist the Court.
Dr Patrick Briggs
52 At the request of the plaintiff, Dr Briggs was interposed during the plaintiff's cross-examination. Dr Briggs is a plastic surgeon with about 20 years' experience. His report dated 3 January 2007 was tendered as part of Exhibit 8.
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53 Dr Briggs saw the plaintiff on 17 October 2006. He understood from the plaintiff, without seeing any notes from Royal Perth Hospital, that she was in hospital for 2½ weeks and subsequently had surgery to her right buttock. Upon examination he observed a scar to the plaintiff's right buttock which he measured as about 5 centimetres by 8 centimetres which he described as a "significant contour defect". He said it is "lined by a split thickness skin graft. The edges of the scar particularly on the medial aspect are slightly excoriated". In addition, on examination, he observed an 11 centimetre by 6 centimetre scar on the plaintiff's right lateral thigh which he described as a donor site. He said this was a well healed area which showed mild colour difference but no textural change.
54 In his report, Dr Briggs said that in his opinion the scar was caused by a haematoma in the plaintiff's right buttock, which caused skin loss and eventually required a skin graft. Although he considered it might be possible to improve the scarring by use of further surgery, he considered this was a moot point because the degree of impairment would not be decreased. Dr Briggs expressed the opinion that he did not believe that the level of symptoms of the plaintiff would be decreased bearing in mind the concomitant medical conditions which she also had. In view of the plaintiff's heavy smoking, Dr Briggs also considered there was significant potential for wound breakdown and therefore did not advocate any revisional surgery.
55 As noted in his report, Dr Briggs was of the view that the plaintiff has "a significant scar on the right buttock which, under the American Medical Association guidelines as outlined in 'Guide to the Evaluation of Permanent Impairment' 5th ed, AMA Press 2001, and edited by Linda Cocchiarella and Gunnar BJ Anderson, would have a class 1, 0 per cent-9 per cent impairment of the whole person". He said on p 178 under Section 8.7 Table 8.2 a class 1 impairment was:
"Skin disorder, signs and symptoms present or intermittently present and no or few limitations in performance of activities and daily living. Exposure to certain chemical or physical agents may temporarily increase limitations and requires no or intermittent treatment."
56 Dr Briggs said in examination-in-chief that in his opinion the injury to the plaintiff's right buttock was likely to have been caused by a blunt trauma which subsequently developed into a haematoma and became infected. He described a haematoma as "a blood clot contained in the tissues" and opined that the abscess would have been surgically drained
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- under general anaesthetic, and the wound packed deeply and widely so that it could heal from the bottom up. The skin graft taken from the thigh would have been laid over the top, this being granulation tissue.
57 In cross-examination, Dr Briggs confirmed his assumption that the cause of the injury was a haematoma which was consistent with a blunt trauma, but he was unable to say whether it was consistent with a motor vehicle collision. Later in cross-examination Dr Briggs said:
"If you were to ask me could [the haematoma] have been caused by a motor vehicle accident, I would say possibly, yes. Could it be caused by somebody slipping and falling over? I would have to say probably unusual, and probably less likely so."
58 I infer from this that it is possible that the plaintiff's haematoma could have been caused by a blunt trauma as a result of slipping or falling over, but there is a greater possibility it could have been caused by a motor vehicle accident.
59 Dr Briggs described the injury as "unusual" and said that it would have taken considerable force for a haematoma to be caused in the buttock region given the nature of the muscles and that the trauma must have been severe to cause a haematoma which resulted in a "quite massive" infection.
Robert Davey
60 Mr Davey was also interposed at the request of the plaintiff's counsel before completion of the plaintiff's cross-examination. Mr Davey gave evidence that he had been involved in accident investigation since 1982. In this matter he obtained an aerial photograph of the accident area (Exhibit 4-Z) from an Internet site and recorded two measurements on the photograph based on the assumption that the lanes on Princess Road were 3.6 metres in width in conformity with the Main Road Standards. He subsequently visited the site and using a surveyor's wheel measured that the distance from the northern streetlight as 40 metres and the distance from the southern streetlight as 34.5 metres to the northern end of the traffic median strip.
61 Mr Davey said, based on a recent visit to the site, that the lights were mercury lights which were white and that about 50 m to the south of the plan there was a sodium streetlight (a yellow light). He said the mercury streetlights were about 5 metres from the edge of the road and he described the lighting in the area as poor. He said the road was straight
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- and he produced a further photograph looking north on Princess Road (Exhibit 10) in this regard.
62 In cross-examination, Mr Davey said that the lanes were 4 metres wide and the median strip width between the white lines, 2 metres in width. He did not know if the streetlights had been moved since the accident.
Dr Joseph Di Camillo
63 The plaintiff called Dr Di Camillo, a qualified medical general practitioner of about 25 years' experience. He gave evidence based on his knowledge of treating the plaintiff, his own handwritten notes and the practice's computer generated notes.
64 Dr Di Camillo is the plaintiff's principal general practitioner. He first saw the plaintiff on 23 June 2004 and still treats her. During examination-in-chief, he confirmed that he was familiar with the plaintiff's pre-accident medical condition and her medication regime. He said that following the accident the plaintiff had required increased amounts of analgesic. This included in particular, Tramadol, which he said he had not prescribed before the accident. He described Tramadol as a strong slow release analgesic. Dr Di Camillo said that the plaintiff's dosage went from 100 milligram to 150 milligram to 200 milligram codeine phosphate following the accident and that she is still presently on the same prescription, that is, 200 milligrams once to twice daily. Dr Di Camillo did not note when he saw the plaintiff following the accident that she had a laceration on her buttock but he did note the haematoma. He did not think her soft tissue injury symptoms would improve in the foreseeable future, based on his opinion that they had not improved much since the accident over two years ago. He considered her Tramadol usage was likely to continue.
65 In cross-examination, Dr Di Camillo explained that the medication regime the plaintiff was on at the time of the accident consisted of benzodiazepine medication (which was intended to be calming) and analgesics (for pain relief). At the time of the accident he said the plaintiff was prescribed Murelax 30 milligrams three times per day, Xanax 2 milligrams twice daily and Ampenex 5 milligrams three times daily. Dr Di Camillo said he made it clear to the plaintiff when he agreed to be her treating general practitioner that she had to comply with his medication regime and in his opinion by and large she had done so, although he said at times she had told him she had taken more than prescribed.
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66 Dr Di Camillo said the benzodiazepine medication had not changed much since the accident. He confirmed that he always remained concerned about the levels of her medication and regarded it as his job to try to get the plaintiff to reduce these. He said side-effects from the medication included affected speech, including slurring of words, particularly if a larger dose than prescribed was taken. He described the side-effects as not unlike alcohol, in that it could produce an uncoordinated response. He agreed that, because of the addictive nature of the drugs, patients can become dependent and seek more than they actually require.
67 Dr Di Camillo said in cross-examination that before the accident the plaintiff was taking codeine phosphate 30 milligrams four to six times daily and after the accident six to eight times daily. He described codeine phosphate as a strong analgesic medication, similar in class and structure to morphine but not as strong. Dr Di Camillo said he prescribed Tramal, which he said was given after the accident to reduce pain. He refused to prescribe the plaintiff with more than eight codeine phosphate 30 milligram tablets per day because he considered it was his "job" to ensure that her dosage did not exceed a greater amount than she actually required.
68 Dr Di Camillo confirmed from the practice computer records that the plaintiff saw Dr Waddell on 14 and 30 December 2005 and that he first saw her after the accident on 29 November 2005 as recorded in his handwritten notes. He confirmed that his notes did not refer to any laceration on the right buttock.
69 I infer from Dr Di Camillo's evidence that he had not conducted a full physical examination of the plaintiff in the three months prior to the trial, presumably relying on the plaintiff's oral complaints of ongoing pain and symptoms.
Dr John Rosenthal
70 Dr Rosenthal is a physician in rehabilitation medicine and has practised as a medical practitioner for more than 35 years. Due to Dr Rosenthal's unavailability during the trial his evidence was given de bene esse on 25 February 2008. Dr Rosenthal was the only witness called by the defendant. I viewed a video of his evidence and read the transcript of his evidence (Exhibit 13) on completion of the plaintiff's case.
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71 Dr Rosenthal conducted a medico-legal assessment of the plaintiff on 3 July 2007 during an extended consultation. At the time the plaintiff was accompanied by her mother. This is the only occasion that Dr Rosenthal has seen the plaintiff.
72 Based on his consultation Dr Rosenthal prepared a report dated 3 July 2007 (Exhibit 3). Dr Rosenthal obtained a history from the plaintiff and noted that prior to the accident she was taking up to eight Panadeine Forte tablets a day. In addition, he noted that her psychiatric medications were Dothiepin, Cipramil, Murelax and Kalma. He also noted that the plaintiff "had switched from Panadeine Forte to codeine phosphate because of altered liver function tests" but it is not clear whether he was told this was before or after the accident.
73 At the time of his review, Dr Rosenthal had possession of the plaintiff's medical notes from Royal Perth Hospital. In July 2007, Dr Rosenthal noted that Ms Ross was currently "taking seven codeine phosphate 30 mg tablets per day plus one Tramal which she says, reduces her craving for the Panadeine Forte. She also takes paracetamol occasionally plus her psychiatric medications which remain unchanged". In examination-in-chief Dr Rosenthal said that the plaintiff told him "she was craving medication. They are her words, not mine" (T 3). In this regard he made the further observation that:
"These problems can contribute to patients being an unreliable historian. I haven't said in absolute terms that she isn't truthful. I've said this is a potential problem in people in this position." (T 3)
74 Dr Rosenthal said he did not probe the plaintiff further concerning the issues of her dependency because, in his opinion, it was clear that it existed and it was not going to assist him for the purpose of assessing her injuries.
75 Dr Rosenthal noted the plaintiff told him that she experienced "a stabbing or burning sensation" in relation to the donor site and further stated that "the skin makes flapping noises". He described this as a "bizarre description" in his report. In cross-examination, Dr Rosenthal said he did not try to ascertain or replicate the flapping noise and that he was mindful of the fact that it is not unusual for people with psychiatric conditions to use "bizarre terminology", the point being that the source of the noise was said to be the donor site which Dr Rosenthal said was a split skin graft without any flap. Dr Rosenthal noted in his report that when he
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- asked the plaintiff what physical impediments prevented her from looking after herself (she told him she could not wash her own hair), the plaintiff replied that it was essentially her mental state and the severe depression.
76 On examination Dr Rosenthal found that the plaintiff was overweight with reduced fitness, but her posture and gait were satisfactory and that she could squat, heel and toe walk. However, he said she has "a dysrhythmic but reasonably full range of back movement with vocalised pain behaviour". He also observed that the plaintiff's mother assisted her with dressing and undressing for the purpose of the examination. He described the plaintiff's right buttock injury as:
"… an extensive, elliptical soft tissue defect, which is at least 6 centimetres in length and it is 3 centimetres at its widest point. There is marginal keloid scarring. There is loss of contour with the split skin graft forming the floor of this soft tissue deficiency. It is quite unsightly and I would defer to the plastic surgeon in relation to the quantum of cosmetic impairment."
77 Based on his clinical examination of the plaintiff's cervical spine Dr Rosenthal reported that:
"There is some abnormal illness behaviour with dysrhythmic movement and limitation, which is not present on indirect observation."
78 Dr Rosenthal described the nature of the plaintiff's injuries in his report as follows:
"Her injury has been a severe haematoma of the right buttock, which has led to the current situation. There was obviously skin loss and necrosis of subcutaneous tissue.
I cannot find objective clinical evidence of her having accident-related disabilities elsewhere. There are no adverse clinical findings in relation to the skin donor region.
Unfortunately, Ms Ross has codeine phosphate dependency, which would contribute to her being an unreliable pain historian. I cannot see that this local buttock problem would be significantly painful unless quite considerable pressure was applied against it. There is no evidence of allodynia on today's examination."
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79 Finally, Dr Rosenthal in his report expressed the opinion that there was no requirement for any further specific treatment by the plaintiff for injuries relating to the accident. The only permanent disability caused by the accident related to the cosmetic impairment of the injury on the plaintiff's right buttock. He observed that the buttock injury was consistent with the impact of a motor vehicle and the subsequent complications which had developed. In his opinion, there was no break in the chain of medical causation. He was not asked to opine on other possible causes of the initial injury.
80 In examination-in-chief Dr Rosenthal confirmed that, apart from the buttock injury, there was no other injury for which he found any objective clinical evidence. As a result, in his opinion, he did not think any further medical treatment or medication was necessary arising out of the accident injuries.
81 In view of the plaintiff's medical condition and medicine regime prior to the accident, I note that Dr Rosenthal was of the opinion that her chronic psychiatric problem which he described as including chronic neck and back pain, and her medication dependency had resulted in the plaintiff having "a diminished social responsibility" and "diminished social output". He said: "There are diminished capabilities in those circumstances of dealing with the vicissitudes of daily, weekly and monthly living …" by which he meant "she is a socially disarticulated person because of these problems" (T 6).
82 Dr Rosenthal said in his evidence-in-chief that he had not made any note that the plaintiff's speech was unusual, slurred or unclear. In this regard he opined that it is "theoretically possible that psychotropic drugs, such as Oxazepam, which she was taking (I think Murelax), such as these antidepressants, plus the addition of opioid medication, the Panadeine Forte, which becomes morphine in the body, it is possible that a combination of these things can produce cognitive changes in people. By cognitive, it might alter their speech, it might alter their memory, it might alter their ability to express themselves with clarity, these sorts of things, but that's really a matter for the people who are treating her for these psychiatric conditions" (T 6). But Dr Rosenthal made it clear that he was not making a specific judgment about the effects of her medications on her in these particular circumstances. However, he regarded seven codeine phosphate 30 milligram tablets per day plus one Tramal as "a fair level of medication … it's a substantial dose. Is it grossly off the map? No" (T 6).
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83 In cross-examination Dr Rosenthal said eight Panadeine Forte is a substantial dose but not "sky-high". In cross-examination Dr Rosenthal referred to a pain chart (Exhibit 2) which the plaintiff completed at the time he reviewed her. He said the instruction given to patients was to indicate every area where they currently experienced pain, discomfort or altered sensation. It is noteworthy that the plaintiff did not indicate any complaint of neck or back pain on her pain diagram. An innocent explanation for this is that she might have thought she was being reviewed only in respect to the right buttock injury. However, the plaintiff was subjected to a full clinical examination and I note she did complain of neck pain and restricted movement, but this was apparently not observed on indirect examination, and no note was made of any complaint of increased neck or back pain as a result of the accident.
84 Dr Rosenthal was asked in cross-examination about any note he made of the plaintiff's explanation as to how the accident occurred. Dr Rosenthal's evidence was that he had a written note that the point of contact was the right buttock and that the plaintiff was "struck from behind". In cross-examination Dr Rosenthal expressed the opinion that it is not very common for patients with true nociceptive pain and objective pathology to develop a craving when they are being treated for such a condition. In cross-examination Dr Rosenthal said by describing the plaintiff's description of a flapping noise from the donor site as bizarre he was not attacking her credibility, but simply that he had been in practice for 35 years and had not come across such a claim.
85 Dr Rosenthal confirmed in cross-examination that he found no evidence of allodynia and that, in any event, this had nothing to do with exaggeration or non-exaggeration of symptoms by a patient. In view of the medical evidence that the plaintiff had a codeine phosphate dependency, Dr Rosenthal was asked in cross-examination whether he considered it could contribute to the plaintiff's pain, in the sense of her being an "unreliable pain historian". Dr Rosenthal's response was :
"It can do both. Firstly, you get rebound symptomology in people that are medication-dependent. That's for certain. The second thing is, is that if people crave a drug they will often distort the truth to obtain supplies of that drug." (T 15)
86 During Dr Rosenthal's evidence given de bene esse on 25 February 2008 the Examiner left to the trial judge an objection by the plaintiff's counsel to a question in re-examination (T 18). In my view, the question did arise out of cross-examination, because Dr Rosenthal was cut off by
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- plaintiff's counsel during an answer in cross-examination on the basis that counsel said he was coming to the point. The point in issue was Dr Rosenthal's note of his observation of the plaintiff during indirect examination (T 9). Unfortunately, plaintiff's counsel did not get back to the point, but it was raised fairly in re-examination.
Discussion
87 The plaintiff's pleaded case and as articulated at trial is that, between 8-8.30 pm on Thursday, 24 November 2005, she was struck by a motor vehicle while crossing Princess Road, Balga on her way home from the local shopping centre. At the time she was a pedestrian and on her own.
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Findings of fact
114 If one was to accept the plaintiff's evidence, and I do not, the plaintiff's case can be summarised as follows:
(1) On Thursday, 24 November 2005 she was walking home from the local shopping centre alone at about 8-8.30 pm. She crossed Gretham Road on an angle and walked across the corner near the intersection of Gretham Road and Princess Road to cross over Princess Road near the traffic island in the median strip on Princess Road;
(2) The evening was hot and still, and the location of crossing over Princess Road was dark. The nearest streetlights were about 40 metres and 34.5 metres away on the opposite side of the road. The road at the locale was flat and straight and there was no other traffic. She waited for a four-wheel drive vehicle with headlights on to pass before she crossed the first lane of Princess Road;
(3) She approached the kerb of the traffic island on the median strip at an angle and continued to walk on the angle with her back partially to oncoming traffic on the eastern side of Princess Road.
(4) She did not hear or see the defendant's motor vehicle before it struck her in the middle of the lane;
(5) As a result of her injuries she suffered an exacerbation of pre-existing pain in her neck and back and has had to increase her analgesia medication, and has by reason of the haematoma becoming infected, a scar on her buttock measuring about 5 centimetres by 8 centimetres with a significant contour defect, and an 11 centimetre by 6 centimetre donor site scar on her right lateral thigh.
115 As already mentioned, I am not persuaded on the balance of probabilities that the plaintiff was injured as a result of a motor vehicle accident occurring in the way she contends.
116 I am unable, having considered all the evidence, to make any finding of fact:
(a) as to the position of the plaintiff immediately before the alleged impact of the defendant's vehicle, except that her
- back was partially facing any oncoming traffic because she was walking across the road at an angle;
- (b) that the plaintiff stopped and looked left and right to check for traffic before crossing over the median strip in the middle of Princess Road;
(c) that the headlights of the defendant's motor vehicle were not on at the time of the collision with the plaintiff, or that the defendant put the headlights on shortly before the witness driver stopped to render assistance, or that the defendant driver turned a "spotlight" onto the plaintiff; or
(d) that the plaintiff suffered any increased or ongoing pain over that already suffered by her prior to the accident, except for that which would have occurred at the time as a direct result of her injuries.
117 I note that on the plaintiff's version of events she did not follow the footpath route as laid out and shown in the aerial photograph (Exhibit 4-Z) but instead walked on the sand and grass areas near the road. If she had, she would have crossed the road at a perpendicular angle which would have increased the opportunity of her seeing any traffic. I would also observe that the driver's alleged admission that he did not see the plaintiff (if made) does not of itself necessarily give rise to the inference that the defendant's headlights were not on.
118 The defendant's only concession in the case was that at the relevant time of the alleged accident it was dark. This concession, without regard to any other evidence, except the fact that the accident occurred in the suburbs, would in my view lead to the inference that it is more probable than not that the defendant did have his headlights on. If it was as dark as the plaintiff contends, then obviously the darker the locality, the less likelihood that the defendant driver would not have operated his headlights. I reject any contention that the defendant driver may have been engaged in a criminal enterprise as suggested at one point by the plaintiff, and was therefore driving without headlights.
119 I accept the plaintiff's submission that I do not need to be persuaded precisely "how" the accident occurred, but unfortunately there is so much inconsistency in the plaintiff's account of events, that I am unable to find whether any accident occurred at all, let alone in the place and way described by the plaintiff. In this case the plaintiff's answers to interrogatories might reasonably be expected to have set out a cogent and definitive account by the plaintiff of what occurred. The plaintiff had
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- every opportunity with the assistance of her solicitors to make plain and clear what she says happened. Instead, the answers caused further confusion to the confusion already created by the plaintiff's oral testimony while in the witness box.
120 In view of the conclusion to which I have come, it is not necessary for me to consider the defendant's claim that the plaintiff was contributory negligent, or to make any apportionment of responsibility, except for the purpose of making a provisional assessment of damages.
121 I have set out the evidence in a fuller way than is usually necessary in view of the conclusion to which I have come.
Quantum
122 It is necessary for me to assess the plaintiff's claim for damages on the basis that she had established her claim. I was told that the plaintiff does not make any claim for the cost of the treatment from her general practitioners, Royal Perth Hospital (in respect of the surgery) or her treatment on admission on the different occasions. The only pecuniary claim is for the increased amount of Tramadol prescribed as a result of the plaintiff's increased pain following the accident. The amount claimed is $17,224.20, which is based on two Tramadol 200 mg tablets daily assuming a life expectancy of 42 years. The plaintiff accepts this amount should be adjusted for the normal vicissitudes of life.
123 The plaintiff's claim for the increased use of Tramadol is rejected on the basis I am not satisfied that the plaintiff is now, or has since the accident, experienced any significant or quantifiable increase in her pre-existing pain levels. But for this finding I would have allowed the sum of $7,500 if I was of the opinion that the plaintiff was still actually suffering increased pain directly attributable to the alleged accident.
124 If I had been satisfied that the accident occurred as alleged by the plaintiff then damages for non-pecuniary loss must be assessed in accordance with the provisions of the Motor Vehicle (Third Party Insurance) Act 1943. Section 3C of the Act provides for a statutory restriction on the amount of such damages by reference, firstly, to "Amount" which, for the financial year ending 30 June 2008, is $292,000. Pursuant to s 3C(3), this is the maximum amount of damages that may be awarded for non-pecuniary loss, but this amount may be awarded only in "a most extreme case". I am therefore required to determine what percentage of a most extreme case the plaintiff's damages should be assessed at having regard to the injuries she suffered. The plaintiff's
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- injuries as noted in the Royal Perth Hospital notes (Exhibit 9, p 8) were described as:
"Multiple injuries – multiple regions – abrasions and pain, pedestrian hit by car, neck pain, back pain, buttock pain/abrasions, left knee, GCS 15, denies loss of consciousness."
126 Dr Briggs in his report of 3 January 2007, when reviewing the plaintiff on 17 October 2006 said that in his opinion the scar wound on the plaintiff's right buttock was as a result of the haematoma causing skin loss which eventually required a skin graft. The Royal Perth Hospital medical records indicate that the plaintiff required surgical treatment following her admission on 14 December 2005 as a result of the haematoma becoming infected and that she was eventually discharged on 29 December 2005. Thereafter she was cared for by Silver Chain whose records (Exhibit 12) disclose 14 visits in the period to 4 August 2006 and contains notes of the healing of the wound by reference to the sketch area.
127 In my view the plaintiff suffered some increased neck and back pain and general pain as a result of the accident, but this was no greater than her existing symptomology within a short period of time and, in any event, had totally dissipated by July 2007 when she saw Dr Rosenthal.
128 In this case the extent of the plaintiff's medication regime prior to the accident and her admitted craving for analgesia make it difficult to form a concluded view about the extent, if any, to which the accident can be said to have caused an increase of her back and neck pain symptoms. I note the plaintiff has been on a general disability pension since April 1998 and according to her there has been no improvement in her symptoms since then.
129 In view of the plaintiff's medical history and having regard to her medicine regime before and after the accident in my opinion an appropriate percentage of a most extreme case is 15 per cent. This equates to $43,800 which results in the defendant's liability to pay the plaintiff the sum of $29,300 for non-pecuniary loss. For the purpose of
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- this provisional assessment, I would reduce this amount by 50 per cent to take account of the plaintiff’s contributory negligence, which I have arrived at making the assumption that the defendant's headlights were not on at the time of the collision and that no other particulars of negligence are established.
130 For these reasons I would make a provisional assessment of the plaintiff's damages as $7,500 (pecuniary loss) plus $14,650 (non-pecuniary loss).
Conclusion
131 I am not satisfied on the balance of probabilities that the plaintiff was struck by a motor vehicle being driven by an unidentified driver, in the manner alleged, whilst she was crossing Princess Road on the evening of 24 November 2005.
132 Further, and in any event, I am not persuaded on the plaintiff's own evidence, assuming that the accident occurred, that the driver did not have his headlights on at the time of the alleged accident.
133 For these reasons I would dismiss the plaintiff's claim.
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