Thillainath v Celli - [2013] WADC 188

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: THILLAINATH -v- CELLI [2013] WADC 188

CORAM: DERRICK DCJ

HEARD: 2-13 SEPTEMBER 2013

DELIVERED : 20 DECEMBER 2013

FILE NO/S: CIV 3019 of 2011

BETWEEN: SUSAN JANE THILLAINATH
Plaintiff
AND
CAROLINE MELANIA CELLI
First Defendant
STEPHANIE ERIN HUGHES
Second Defendant

Catchwords:

Torts - Personal negligence - Motor vehicle crash - Negligence admitted - Contributory negligence - Causation - Preexisting conditions - Assessment of damages

Legislation:

Civil Liability Act 2002 (WA)
Civil Liability Act 2002 (NSW)
Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Law Reform(Contributory Negligence and Tortfeasors' Contribution) Act 1947
Road Traffic Act 1974 (WA)
Road Traffic (Authorisation to Drive) Regulations 2008 (WA)
Road Traffic Code 2000 (WA)

Result:

Judgment for plaintiff
Damages reduced by 20% for contributory negligence
Damages assessed

Representation:

Counsel:

Plaintiff:     Mr T J Hammond
First Defendant             :     Ms B A Mangan
Second Defendant         :     Ms B A Mangan

Solicitors:

Plaintiff:     Shine Lawyers
First Defendant             :     Brian C Sierakowski
Second Defendant         :     Brian C Sierakowski

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1
Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158; (2007) 34 WAR 109
Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111
Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Bennett v Minister for Community Welfare [1992] HCA 27; (1993) 176 CLR 408
Browne v Dunn (1893) 6 R 67 HL
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155
Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 215 ALR 418; (2005) 79 ALJR 1104
Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563
Den Hoedt v Barwick [2006] WASCA 196
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Hodge v Barham [2011] WADC 71; (2011) 74 SR (WA) 340
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
Newman v Nugent (1992) 12 WAR 119
Novakovic v Stekovich [2012] NSWCA 54
Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) Aust Torts Rep 81‑949
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Raso v Raso [2007] WADC 53; (2007) 51 SR (WA) 1
Richard Warren Dorsett as Administrator of the Estate of Andrew Warren Dorsett (DEC) v Janeska [2005] WASCA 215
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208
Shorey v PT Ltd [2003] HCA 27; (2003) 77 ALJR 1104
Southgate v Waterford (1990) 21 NSWLR 427
State of South Australia v Ellis [2008] WASCA 200; (2008) 37 WAR 1
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
Struthers v Harris [1983] WAR 123
Thornton v Sweeney [2011] NSWCA 244
Town of Port Hedland v Hodder [No 2] [2012] WASCA 212
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

DERRICK DCJ:

Introduction

This action arises out of a motor vehicle accident which the plaintiff alleges was caused by the negligence of the first and second defendants (the defendants).
The plaintiff was a passenger in one of the two cars involved in the accident. The second defendant was the driver of the car in which the plaintiff was a passenger. The first defendant was the driver of the other car involved in the accident.
The plaintiff alleges that she suffered injuries and consequential loss and damage as a result of the accident.
The defendants each admit that the accident was caused in part by their negligent driving. However, they allege that the accident was also caused in part by the plaintiff's negligence. Further, the defendants deny that the plaintiff suffered any substantial compensable injury as a result of the accident. Accordingly, the issues for determination are as follows:
1.Was the plaintiff contributorily negligent and if so to what extent?
2.What injuries, if any, did the plaintiff suffer as a result of the accident?
3.If the plaintiff did suffer injury as a result of the accident, what is the appropriate award of damages for any consequential loss and damage suffered by the plaintiff?

The accident

At about 7.45 am on 3 August 2010 the second defendant was driving the plaintiff's Toyota Camry, registration number 1ALA533 in a northerly direction on Lord Street in East Perth (the Camry). The second defendant was, at the time, a learner driver: Road Traffic Act 1974 (WA), s 43.
The plaintiff, who is the second defendant's mother, was seated in the front passenger seat of the Camry. The plaintiff was wearing a seat belt. She was supervising the second defendant's driving: Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 45 and reg 49.
As the second defendant approached the intersection of Lord Street and Summers Street in East Perth she slowed down and indicated to turn right into Summers Street. At the time that the second defendant entered the intersection the oncoming traffic light was green.
While the second defendant was at the intersection waiting to turn right the first defendant was driving her Mazda 3, registration number 1CUV165, in a southerly direction along Lord Street towards the intersection.
The traffic lights at the intersection changed to amber. After the lights had changed to amber the second defendant began to execute her right‑hand turn into Summers Street. She did so in the belief that her path was clear. Unfortunately it was not. As the second defendant was attempting to turn into Summers Street the first defendant drove through the intersection in the inside (that is, kerbside) southbound lane of Lord Street whilst the traffic light facing her was amber and crashed into the passenger side of the Camry (the accident). The crash caused damage to the left side of the Camry (predominantly to the front passenger door area), and some relatively minor damage to the front left of the first defendant's car.
The crash did not cause the airbags installed in the first defendant's car to deploy. The Camry was not fitted with airbags.
A short time after the accident someone, not the second defendant, drove the Camry out of the intersection and into a parking lot that was situated on the south‑east corner of the intersection. The plaintiff was still inside the Camry when it was driven into the parking lot. The first defendant also drove her car out of the intersection and parked it in a nearby driveway.
The plaintiff was trapped inside the Camry for about one hour. She was eventually freed from the Camry by Fire and Emergency Services (FESA) officers. The officers had to cut away the passenger side front and rear doors of the Camry including the central pillar in order to extricate the plaintiff.
The plaintiff was taken by ambulance to hospital. She was admitted to hospital. She was released from hospital the following evening.

Admitted allegations of negligence

In par 5 of the amended statement of claim the plaintiff pleads that the accident was caused by the negligence of the first defendant and/or second defendant. She pleads the following particulars of negligence against the first defendant:
1.Failed to drive with due care and attention;
2.Failed to apply the car's brakes in time or at all to avoid the crash;
3.Failed to keep any or any proper lookout in order to avoid the crash;
4.Failed to steer, slow down or otherwise control the car so as to avoid the crash;
5.Drove in a manner that was unsafe in all the circumstances;
6.Failed to obey a traffic signal, namely the traffic light at the intersection;
7.Failed to heed the second defendant's car turning into Summers Street; and
8.Drove her car at a speed which was excessive in all the circumstances.
The particulars of negligence alleged by the plaintiff against the second defendant are the same as the above stated first five particulars alleged against the first defendant. In addition, the plaintiff alleges against the second defendant that she was negligent by:
1.Failing to heed the first defendant's car entering the intersection; and
2.Making a right turn when it was unsafe to do so.
In their re‑amended defences the defendants each admit that they were negligent, although they do not expressly plead to the particulars of negligence alleged against them in the amended statement of claim. It was not suggested during the trial on behalf of either the first defendant or the second defendant that she was not negligent as alleged in the plaintiff's particulars. Accordingly, and although not much turns on the issue, I will proceed on the basis that each of the defendants was negligent as alleged in the plaintiff's particulars of negligence.

Alleged contributory negligence

The defendants each accept that their negligence caused the accident. However, in their amended defences the defendants each allege that the accident was also caused in part by the plaintiff's negligence. The particulars of negligence alleged by each of the defendants against the plaintiff are as follows:
1.Failed to keep any or a proper lookout or to observe or heed the presence or approach of the car driven by the first defendant;
2.Failed to take reasonable care for her own safety;
3.Failed to exercise reasonable supervision of the second defendant whom she knew was a learner driver at the time and lacked skill and experience; and
4.Failed otherwise to avoid a collision by not warning the second defendant of the potential dangers of entering the intersection having regard to all the circumstances.
The plaintiff denies that she was contributorily negligent.

Was the plaintiff contributorily negligent?

Legal principles

Statutory foundation for claim of contributory negligence and common law

The foundation for a claim of contributory negligence is s 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) which provides:
Whenever in any claim for damages founded on an allegation of negligence the court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant's act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff.
If a court makes a finding of contributory negligence the terms of s 4(1) provide the court with a very wide discretion in determining the amount by which the damages that would otherwise be awarded to the plaintiff should be reduced. In exercising this discretion the court will have regard not only to the culpability of the parties, that is, the degree to which each has departed from the standard of what is reasonable, but also the relative importance of the acts of the parties in causing the damage: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, 494; Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65, 68; Town of Port Hedland v Hodder [No 2] [2012] WASCA 212 [316]. 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 (494); Wynbergen v Hoyts (68); Town of Port Hedland v Hodder [No 2] [316].
The notion of culpability in the context of the application of s 4(1) is not a reference to moral blameworthiness, but rather the degree of departure from the standard of care of the reasonable man: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10, 16; Town of Port Hedland v Hodder [No 2] [319]. As was stated by Dixon CJ, Webb, Fullagar and Kitto JJ in Pennington v Norris (16):
To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable, because while the defendant's negligence is a breach of duty owed to other persons and therefore blameworthy, the plaintiff's 'contributory' negligence is not a breach of any duty at all, and it is difficult to impute 'moral' blame to one who is careless merely of his own safety.
Contributory negligence differs from negligence in that it is conduct which exposes the actor to the risk of injury without necessarily exposing others to the risk: Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563, 570; Town of Port Hedland v Hodder [No 2] [320]. In Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 [21], [30], the majority said:
Although conduct amounting to contributory negligence may also constitute the breach of a duty which the plaintiff owes to the defendant, a plaintiff can be guilty of contributory negligence notwithstanding that he or she owes no duty to the defendant or any third person. …
A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. … The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases the nature of that duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of the many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.
The standard of care expected of a reasonable man is to be determined objectively; it is both objective and impersonal: Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 [10]; Town of Port Hedland v Hodder [No 2] [271] ‑ [292], [323] – [369]. The standard of care is not determined in a vacuum. It is that of a reasonable person in the position of the plaintiff. This brings in all relevant objective surrounding circumstances including what the person was aware of or ought to have been aware of: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 [16], [70].

Civil Liability Act 2002 (WA)

Against the above background of s 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act and common law principle I turn to s 5K of the Civil Liability Act 2002 (WA) (the CLA). Section 5K provides:
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose —
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
'Harm' is defined to mean harm of any kind including personal injury and economic loss: CLA, s 3.
The principles 'applicable in determining whether a person is liable for harm caused by the fault of the person' include those in s 5B of the Act: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [27]. Section 5B of the Act provides:
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Section 5K reflects the common law in that it requires the application of an objective test in determining whether a plaintiff who has suffered harm has been contributorily negligent. To put it another way, the question whether a person has been guilty of contributory negligence is, by virtue of s 5K, to be determined by reference to the standard of care expected of a reasonable man: Town of Port Hedland v Hodder [No 2] [293] – [299], [372] – [380]. Thus, as Murphy JA said in Town of Port Hedland v Hodder [No 2] [372]:
The question posed by s 5K(1) is, in effect, whether the plaintiff who has suffered harm has been contributorily negligent 'in failing to take precautions against the risk of that harm'. For the purpose of determining that question, the plaintiff is, in effect, required to meet the standard of a 'reasonable person' in the position of the plaintiff and the matter is to be determined on the basis of what the plaintiff knew, or ought to have known at the time: s 5K(2). Section 5K(1) provides that a different standard does not apply as between the plaintiff and defendant when considering the respective questions of negligence and contributory negligence … The words 'a reasonable person in the position of that person' in s 5K(2) are, in my view, to be read as a whole. The words 'in the position of that person' are not to be read as separately conveying that a subjective standard is to be applied in determining questions of contributory negligence.
The words 'reasonable person in the position of that person' appearing in s 5K(2)(a) are equivalent to the words 'a reasonable person in the plaintiff's position': Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) Aust Torts Rep 81‑949 [14]; Town of Port Hedland v Hodder [No 2] [374] – [376].
Section 5K, by providing that the principles set out in s 5B apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm, substantially reflects the position which exists at common law, namely that in exercising the discretion provided to the court by s 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act the court will have regard not only to the degree to which each party has departed from the standard of what is reasonable, but also the relative importance of the acts of the parties in causing the damage.

Evidence as to the accident

It is necessary at this point to refer to the evidence that was adduced during the trial as to the circumstances of and leading up to the accident. The evidence came from a number of witnesses.

Plaintiff

The plaintiff's relevant evidence was as follows.
For about three weeks prior to the accident she had been supervising her daughter's driving. During this three-week period her daughter would drive her from their home in Kewdale to her workplace under her supervision. She was working at the public transport centre which was based at the East Perth train station. When they arrived at her work her daughter would then catch the train to her workplace.
The journey from home to work took about 25 minutes depending on the traffic. The drive to work required her daughter to drive in a northerly direction along Lord Street and then turn right into Summers Street. Her workplace was situated in Summers Street.
In addition to the journeys to work her daughter did the odd bit of driving on weekends. However, the majority of her daughter's driving occurred during the weekdays.
At the time her daughter was using the Camry to learn to drive. She had purchased the Camry in her name as a second vehicle. She had purchased the Camry because it was an automatic and her daughter wanted a licence to drive an automatic car. Her daughter had done her driving school time in an automatic car. The plan was for her daughter to buy the Camry off her when her daughter obtained her driver's licence.
During the time leading up to the accident she considered that her daughter's driving skills were fine and that her daughter was very proficient. She felt perfectly fine seated beside her daughter and did not have any problems with her daughter's driving.
On the morning of 3 August 2010, which was a fine clear day, the drive to work prior to the accident was uneventful. The traffic did not appear to be heavy. She was wearing a seat belt. She was not under the influence of any alcohol or drugs. Learner plates were displayed on the Camry.
As her daughter approached the intersection of Lord Street and Summers Street the traffic lights were green. Lord Street in this location runs slightly uphill. Her daughter was in the right-hand lane. Her daughter turned the indicator on as she was approaching the intersection in order to indicate that she wanted to turn right.
When her daughter got to the intersection she pulled out into the 'safe harbour' zone of the intersection. At this time there was a large four‑wheel drive stopped in the southbound outside lane of Lord Street (that is, the lane closest to the median strip). She could not really see the oncoming traffic at this point because it was obscured by the left‑hand frame of the Camry's front window.
As the traffic light turned amber her daughter started to execute the right‑hand turn. It was at this time that she first saw the oncoming car in the inside southbound lane of Lord Street. She saw the car out of her passenger window. The four‑wheel drive was still stopped in the southbound outside lane of Lord Street.
When she first saw the oncoming car she thought that it was far enough away that it was going to stop. Her last thought was that the car was going to stop and that if it did not stop it was going to hit them.
The oncoming car then crashed into the passenger side of the Camry. The Camry was facing into Summers Street at the point of impact.
She does not recall the moment of impact. She was frightened because the car was coming at her side of the Camry.
She does not believe she could have done anything more to prevent the accident. The Camry was not in her control. She had no foot pedals and no steering wheel. The Camry was close to being stationary at the time of impact. Even if she had thought to apply the hand brake it would not have made a difference.

Second defendant

The second defendant's evidence‑in‑chief as to the circumstances of the accident was as follows.
She was driving in a northerly direction along Lord Street. As she approached the intersection at Summers Street the traffic light was green. She intended to turn right into Summers Street. She entered the intersection, or 'safe harbour' area, displaying her right indicator.
The traffic light changed to amber. After the lights changed to amber a few cars still went through the intersection. In the southbound outside lane of Lord Street there was a black four‑wheel drive that was stopped.
She continued forward so as to complete her turn. She could not see past the four‑wheel drive. At this point the other vehicle, that is, the car driven by the first defendant, veered around the four‑wheel drive into the inside southbound lane of Lord Street and collided with her car. Her mother called out her name and grabbed hold of her arm right as the impact occurred. Her mother pulled her arm quite hard and she had a lot of pain in her left shoulder as a result.
She was in shock at the accident scene.
In cross-examination the second defendant gave the following relevant evidence.
She had driven as a learner driver the route from her house in Kewdale to her mother's work at the East Perth train station on a number of occasions prior to the accident. She had also travelled this route as a passenger. On each of the occasions that she drove the route her mother was in the passenger seat and acted as her supervisor.
Her mother was a cautious supervisor. Her mother did not, just before the accident, distract her or urge her to run the amber light.
She only saw the first defendant's car at the very last minute. She saw the car after her mother screamed her name. The screaming by her mother of her name and her seeing the oncoming car happened very close together. At the time she was focussed on Summers Street because she was making the right‑hand turn.
The other car involved in the accident was driving in the outside southbound lane of Lord Street before it swerved out from behind where the four‑wheel drive was.

First defendant

The first defendant's evidence-in-chief as to the accident was as follows.
In August 2010 she was living in Marlborough Street which is near the East Perth train station. Marlborough Street is two streets north of the intersection between Lord Street and Summers Street. Marlborough Street is on the east side of Lord Street.
On the morning of 3 August 2010 she drove along Marlborough Street and turned left on to Lord Street. She was on her way to work.
When she turned on to Lord Street she turned in to the inside southbound lane. She then drove along the inside southbound lane of Lord Street. At no stage did she change lanes.
The speed limit in Lord Street was 60 km per hour. She was definitely driving within the speed limit.
As she approached the intersection of Lord Street and Summers Street the traffic lights were green. She was in the inside lane. She was literally driving in a straight line. As she went through the intersection the lights turned amber and she collided with the Camry. The Camry was turning right into Summers Street at the time of the collision. The Camry had crossed her carriageway.
The southbound lane in which she was driving was slightly downhill. The sun was behind her.
When she first saw the Camry it was right in front of her. There was no missing it. However, at the last minute before the accident she braked and slightly angled her car to soften the impact of the blow.
At the time of the accident she had held her driver's licence for about seven years.
In cross-examination the first defendant gave the following evidence.
She did provide a statement in relation to the accident to a police officer on the day of the accident. At the time of providing the statement she did not remember what lane she had been driving in prior to the accident. She was in shock. Since the accident she has remembered what lane she was driving in.
On the day of the accident she did say that she noticed the lights turn orange as she was approaching the intersection. The lights turned orange just as she was about to hit the intersection. She was coming up to them and they were green and they turned orange as she was entering the intersection.
She agrees that her recollection of the accident as provided on the day of the accident would be more accurate than her current recollection. She agrees that her memory of the accident today is not as 'sharp' as it was at the time of the accident. She agrees that it is more likely that the lights turned orange as she was approaching the intersection.
Even though she was driving south down Lord Street she felt like the sun was behind her.
She first remembered what lane she had been driving in at the time of the accident when she 'actually stopped and thought about it when [she] got served with all the papers and went through the accident over and over and over again in my head'. This was earlier this year. She thinks it might have been a few months ago. She has obviously thought about the accident since but it was when she received the papers that she first remembered that she was driving in the inside lane.
In re-examination the first defendant confirmed that she entered Lord Street from Marlborough Street and turned left into Lord Street. She said that she does not believe she had any reason to change lanes at any stage prior to coming to the intersection.

Simon Baxter

The defendants called Acting Senior Sergeant Simon Baxter to give evidence. His relevant evidence was as follows.
He is attached to the Western Australia Police Service's traffic enforcement group. He has been a police officer for 15 years. For most of that time he has worked in the traffic section of the police service.
He was one of the police officers who attended the scene of the accident. He arrived at the scene at about 8.20 am.
When he arrived at the scene the Camry and the first defendant's car had both been moved to the car park on the south-east corner of the intersection between Lord Street and Summers Street. Officers from FESA and St John's Ambulance were already in attendance.
In his experience nearly all vehicle airbags deploy when the impact speed is 35 km per hour or more. He considered the crash to be a minor crash.

David Bailey

A further witness called by the defendants to give evidence about the accident was Mr David Bailey. Mr Bailey gave evidence to the following effect.
At the time of the accident he was stopped in the outside eastbound lane of Bulwer Street. He was stopped at the red light. He was waiting to turn right into Lord Street. He was the first in the line of cars waiting to turn right.
While he was stopped at the light he saw the Camry in the middle of the intersection waiting to turn right into Summers Street. The next thing he saw was the first defendant's car travelling south on Lord Street in the inside lane. At this point the Camry started turning into Summers Street into the line of the first defendant's oncoming car with the result that the first defendant's car struck the Camry. The Camry had pulled out in front of the first defendant's car.
The first defendant's car struck the passenger side door of the Camry. The Camry moved probably no more than 1 m backwards.
At the time the traffic was heavy. It was as 'busy as it gets'.
From the time of the collision he had to wait for three seconds before the light that was facing him turned green thus enabling him to turn into Lord Street. He is 100% sure that there was a three‑second delay because he remembers saying to himself 'come on' four or five times before the light turned green. He does not accept that it might only have been a two‑second delay between the crash and the light facing him turning green.
He only noticed the first defendant's car from the left‑hand side a very short amount of time prior to the collision.
Once he was able to safely turn right into Lord Street he parked his car on the left‑hand side of Lord Street and stayed at the scene of the accident until he was comfortable that everyone was safe and there was nothing more that he could do. He would have stayed at the accident scene for about 10 minutes. He did not see any police or other service vehicles during that time.

Martin Woolley

The only other evidence adduced during the trial relevant to the circumstances of the accident was that of a Mr Martin Woolley. Mr Woolley's evidence was adduced by the defendants tendering in his absence with the plaintiff's consent a statement made by him on 6 August 2013. Mr Woolley's statement reveals the following.
He is a traffic systems operation officer for Main Roads Western Australia. He has been employed in this capacity for 10 years.
The 'amber time' for all of the traffic lights at the intersection of Lord, Bulwer and Summers Streets is four seconds. The 'all red time' is two seconds. This means that all lights at the intersection are simultaneously red for this period of time. The two second 'all red time' acts as a safety margin. It prevents anyone from moving for that period of time so as to allow all traffic to clear the intersection.
Both northbound and southbound traffic travelling on Lord Street will simultaneously face an amber light for four seconds and then a red light simultaneously.
The 'green time' for the traffic lights at the intersection is variable based on traffic conditions.

Findings as to circumstances of accident

I am satisfied that the plaintiff gave honest and reliable evidence in relation to the circumstances of the accident. It was not suggested on behalf of the defendants that the plaintiff did not do so.
On the basis of the plaintiff's evidence I am satisfied of the following matters. First, when the second defendant drove into the 'safe harbour' area of the intersection in preparation for making her right‑hand turn into Summers Street, the plaintiff could not see, or at least could not clearly see, oncoming traffic in the inside southbound lane of Lord Street because her vision was obscured by not only the pillar between the car's front windscreen and front passenger door, as the plaintiff expressly stated, but also the four-wheel drive that was stopped at the intersection in the southbound outside lane of Lord Street. Second, that the second defendant started to execute her right-hand turn after the lights facing her turned amber. Third, that as the second defendant started executing her turn the plaintiff saw the first defendant's car approaching and thought that it was far enough away to stop before colliding with the Camry.
I am also satisfied that Mr Bailey gave honest and reliable evidence. He was an independent witness. Moreover, the fact that he was not actually involved in the accident provides a basis for having some confidence in the accuracy of his recollection. In any event, neither the plaintiff nor the defendants suggested that I should make any finding contrary to the evidence given by Mr Bailey.
On the basis of Mr Bailey's evidence, considered in light of the undisputed evidence of Mr Woolley, I am satisfied that the collision between the first defendant's car and the Camry must have occurred very close in time (within a second or two) of the traffic lights facing both the first defendant and the second defendant turning red. To put it another way, I am satisfied that the first defendant was approaching the amber light facing her for between two and three seconds before she entered the intersection and collided with the Camry.
The plaintiff in this context submitted that I should, on the basis of Mr Woolley's evidence and Mr Bailey's evidence that there was a three‑second delay between the accident and the light facing him turning green, find that the first defendant was approaching the amber light for at least three seconds before she entered the intersection. I think that even allowing for what I have found to be the generally reliable nature of Mr Bailey's evidence, some allowance must be made for the fact that even the most competent of witnesses will have difficulty estimating with absolute precision amounts of time that elapse between specific events particularly when the time period being spoken of is a matter of seconds only. It is for this reason that I have found that the first defendant was approaching the amber light for between two and three seconds before she entered the intersection.
So far as the second defendant is concerned, I am satisfied that she gave her evidence honestly and that in most respects her evidence was reliable. In particular, I am satisfied on the basis of the second defendant's evidence of the following matters. First, that as she proceeded to execute her right-hand turn she could not see past the four-wheel drive that was stopped at the intersection in the outside southbound lane of Lord Street. Second, that after the lights facing her had turned amber and before she started to execute her turn a number of cars that were travelling in the inside southbound lane of Lord Street continued through the intersection. Third, that in the moments before impact, and just before she saw the first defendant's car, her mother screamed her name and grabbed her arm. I note that my finding that before the second defendant started to execute her turn a number of cars travelled through the intersection in the inside southbound lane of Lord Street, is consistent with the evidence of Mr Bailey that at the time of the collision the traffic was heavy and that it was 'as busy as it gets'.
I do not accept as reliable the evidence of the second defendant that the first defendant veered around the stopped four-wheel drive into the inside southbound lane of Lord Street in the moments before the collision. I do not accept this aspect of the second defendant's evidence for two principal reasons. First, the second defendant's evidence on this point does not sit comfortably with Mr Bailey's evidence. Even allowing for the fact that Mr Bailey said that he saw the first defendant's car from the left‑hand side for only a very short amount of time prior to the collision, it seems to me that given that he did see the car before the collision he would have noticed if it had veered or swerved out from behind the stationary four‑wheel drive. Second, when one takes account of the relatively short distance between Marlborough Street and Summers Street, and the fact that it was rush hour and the traffic was heavy, I think it unlikely that in the moments prior to the collision the first defendant would have been in the outside southbound lane of Lord Street either as a result of having turned into that lane from Marlborough Street, or having moved from the inside southbound lane of Lord Street to the outside lane at some point between Marlborough Street and the intersection of Lord Street and Summers Street. It follows that I am satisfied that the conduct of the second defendant in turning into the path of the first defendant's car was not due to the first defendant swerving out from behind the four‑wheel drive at the last moment, but rather was due to the second defendant not seeing the first defendant's car approaching in the southbound lane at the time that she commenced to execute her turn.
In making the finding that I have about the lane in which the first defendant was driving during the moments leading up to the collision, I have not placed reliance on the evidence given by the first defendant herself in relation to this issue. Although I am satisfied that the first defendant gave her evidence honestly, she did not impress me as a reliable witness. As is apparent from my above summary of her evidence, the evidence that she gave in examination‑in‑chief was in two respects inconsistent with what she had said to the police about the accident on the day of the accident. In short, I am not persuaded that the first defendant, despite her evidence that in recent times she had gone over the accident 'over and over again' in her head, had a clear recollection of the precise circumstances of the accident.

It follows from my assessment of the first defendant's reliability and my finding as to the period of time for which the lights had turned amber before her car entered the intersection, that I do not accept the evidence given by the first defendant in examination-in-chief that the lights turned amber as she went through the intersection. In any event, the first defendant retreated from this asserted position in cross-examination by agreeing that it was more likely that the lights had turned amber as she was approaching the intersection.

Parties' submissions

The plaintiff submits that she at no time asked the second defendant to perform a driving task that was unreasonable. She submits that she took all reasonable precautions that a voluntary supervisor would take in the circumstances that were prevailing at the time, including warning the second defendant at the last minute. She submits that the evidence supports findings that she was a cautious supervisor, that she did not encourage the second defendant to run the traffic lights, that she did not distract the second defendant, and that the second defendant was prior to the collision in a 'safe harbour' location within the intersection and not in breach of the relevant road rule, specifically reg 44(4) of the Road Traffic Code 2000 (WA). She submits that she did not act in a way that departed from the standard of care required of her as a voluntary supervisor. She submits that in all the circumstances she was not contributorily negligent.
The defendants submit that the plaintiff was obliged to at least supervise the second defendant and to give to the second defendant all reasonable advice and information so as to ensure the safety of the Camry and of others potentially affected while the second defendant was driving the Camry under the plaintiff's instruction: Imbree v McNeilly [65], [123]. The defendants submit that the plaintiff was contributorily negligent because she failed to check that the way was clear before the second defendant proceeded to execute her right-hand turn, and because she failed to warn the second defendant when she saw the first defendant's car approaching the intersection from a distance where she thought it could stop. The defendants submit that the plaintiff had an opportunity to warn and instruct the second defendant but failed to do so, and that to scream and grab the second defendant's arm at the last minute was insufficient. The defendants submit that the plaintiff had the opportunity to take control of the dangerous situation and avert the accident. The defendants submit that in these circumstances the plaintiff was in a position of responsibility analogous to the position of the driver of the vehicle. The defendants submit that the plaintiff's responsibility for the accident was significant and that therefore any damages awarded to her should be reduced significantly in accordance with the degree of her contributory negligence.

Analysis and findings as to contributory negligence

The basic question for my determination is whether the plaintiff, having regard to the principles stated in s 5B of the CLA, failed in all the circumstances to take reasonable care for her own safety. In determining this question it is important to avoid approaching the matter with the benefit of hindsight. A person is not contributorily negligent merely because there are steps that he or she could have taken to avoid a risk that actually materialised: Novakovic v Stekovich [2012] NSWCA 54 [42]; Thornton v Sweeney [2011] NSWCA 244 [131].
I do not accept the submission made on behalf of the defendants that the plaintiff was contributorily negligent by failing to warn and instruct the second defendant at the time that she saw the first defendant's vehicle approaching. Specifically, I do not consider that it is reasonable to expect that the plaintiff at that point in time had the opportunity to take control of the situation and avert the accident. I simply do not accept, even allowing for the fact that the plaintiff when she saw the first defendant's approaching car believed that the first defendant had time to stop, could reasonably have done anything to prevent the collision within the short period of time between her seeing the first defendant's oncoming car and the collision occurring. There was no way that she could have taken control of the first defendant's car in a physical sense. Further, any warning that she might have given to the second defendant beyond screaming and grabbing the second defendant's arm would not, given that the second defendant was already in the process of undertaking the turn and hence moving into the line of the first defendant's car, have enabled the second defendant to in some way avoid the collision.
I am, however, satisfied that the plaintiff failed to undertake one precaution that a reasonable person in her position as a voluntary supervisor would have taken to avoid injury to herself: CLA, s 5K(2). The second defendant was a learner driver. It was peak hour. The traffic was heavy. There was a four‑wheel drive stopped at the intersection in the southbound outside lane of Lord Street. A number of cars had proceeded in a southerly direction through the intersection after the lights had turned amber. Once the second defendant had driven into the intersection the plaintiff could not see, or could not clearly see, oncoming traffic in the inside southbound lane of Lord Street. The plaintiff must therefore have been aware, or ought to have been aware, that there was at least a possibility that the second defendant would also be having difficulty seeing oncoming traffic. In all these circumstances I am satisfied that the risk of the second defendant turning into the path of and colliding with oncoming traffic was foreseeable (CLA, s 5B(1)(a)), that the risk was significant (CLA, s 5B(1)(b)), and that a reasonable person in the position of the plaintiff would, at the time that the second defendant was stopped in the safe harbour area of the intersection waiting to turn right, have taken the precaution of providing to the second defendant an instruction to the effect that she should not proceed to turn until she was certain that there were no more cars proceeding through the intersection, and that if necessary she should not turn until the lights had changed to red and any cars travelling in the southbound lanes of Lord Street had stopped at the red light (CLA, s 5B1(c) and s 5B(2)). I do not consider that the fact that the second defendant had driven the route in question on a number of prior occasions to be sufficient to warrant the conclusion that it was not reasonable for the plaintiff to give such an instruction. Moreover, in my view for the plaintiff to give an instruction to this effect would have been in accordance with reg 44(4) of the Road Traffic Code 2000 which relevantly provides:
If the traffic‑control signals change to yellow or red while the driver is stopped and the driver has fully entered the intersection, the driver shall leave the intersection as soon as the driver can do so safely.
In summary, I am of the view that by failing to give the second defendant an instruction to the effect that I have specified, the plaintiff failed to take a precaution that a reasonable person in her position as a voluntary supervisor would have taken to prevent harm to herself. To put it another way, I am satisfied that by failing to give this instruction the plaintiff failed to take in all the circumstances reasonable care for her own safety.
It remains to consider the extent by which any damages awarded to the plaintiff should be reduced by reason of my finding that the plaintiff was contributorily negligent. In my view the degree to which the second defendant departed from the standard of what is reasonable was far greater than the plaintiff's departure from this standard. I also consider that in relative terms the conduct of the second defendant was by far the more important cause of the accident. The second defendant was the person who was in control of the vehicle. The second defendant was the person who proceeded to commence her right‑hand turn while the lights were still amber. The second defendant was the person who failed to see the first defendant's oncoming car. Taking into account all the circumstances, and subjecting to examination the whole conduct of the plaintiff and the second defendant in relation to the circumstances of the accident, I consider that the plaintiff's contributory negligence warrants a 20% reduction in any damages awarded to her.

Did the plaintiff suffer injury as a result of the accident?

The cases of the parties - summary

The plaintiff alleges that as a result of the accident, or more specifically the negligence of the defendants, she has suffered the following injuries:
1.Left shoulder injury;
2.Left hip injury;
3.Left lower limb injury with loss of sensation from her waist down;
3.Lower back and cervical spine injury;
4.Pelvic injury;
5.Lumbar spine injury; and
6.Psychological and/or psychiatric injury comprised of anxiety, depression and post-traumatic stress injury.
The plaintiff also alleges that as a result of some of the injuries that she allegedly suffered in the accident she experienced pain symptoms of varying persistence and severity as well as bowel urgency and faecal incontinence.
The defendants do not dispute that as a result of the accident the plaintiff suffered some very minor soft tissue injuries which in turn resulted in her experiencing some very transient pain symptoms. The defendants accept that given the nature of the accident the plaintiff would inevitably have suffered injuries and symptoms of this type. The defendants also accept that the accident caused the plaintiff to suffer some 'transient aggravation of [the plaintiff's] anxious personality'. However, the defendants deny that the plaintiff suffered any physical, psychological or psychiatric injury of significance as a result of the accident. They also deny that the plaintiff suffered, as a result of the accident, any long‑term ongoing pain symptoms. The defendants' case is that the significant and ongoing pain symptoms, and psychological or psychiatric conditions, which the plaintiff alleges were caused by the accident are nothing more than a continuation of symptoms and conditions that the plaintiff was suffering from for a considerable period of time prior to the accident. In essence, the defendants contend that there is no significant difference between the plaintiff's condition prior to the accident and the plaintiff's condition after the accident and that the accident has caused the plaintiff minimal additional harm.
In order to properly deal with and analyse the parties' respective cases in relation to the question whether the accident caused the plaintiff to suffer any significant injury it is necessary to first set out in some detail the evidence adduced at trial as to the plaintiff's pre and post-accident social history and medical conditions.

Evidence

Evidence as to plaintiff's pre-accident medical and social history

The evidence adduced at trial established the following in relation to the plaintiff's relevant pre‑accident social history and medication conditions.
The plaintiff was born on 22 April 1962. She was born in New Zealand.
When the plaintiff was between 14 and 16 years of age she suffered from osteomyelitis in her leg. She was placed on antibiotics and hospitalised from time to time for this condition.
In 1983 the plaintiff married her first husband, Mr Michael Hughes. She gave birth to their first child, Richard Hughes, in January 1986. She gave birth to their second child, the second defendant, in March 1989.
The plaintiff's marriage to her first husband was at least in its later years dysfunctional. Her husband had his own psychological difficulties and suffered a work related nervous breakdown. The plaintiff experienced some physical and emotional abuse at the hands of her first husband.
In about 1998 the plaintiff was diagnosed with a condition called Barrett's Oesophagus. This is a pre‑cancerous condition of the oesophagus.
In January 2000 the plaintiff separated from her first husband. In November of the same year she came with her children to live in Perth.
In March 2002 the plaintiff was sexually assaulted during a home invasion. She underwent counselling through the Sexual Assault Resource Centre for about a month. She suffered from depression as a result of this incident for about three months.
In November 2002 the plaintiff and her first husband divorced.
On 17 February 2003 the plaintiff suffered from right vision disturbance followed by a severe left sided headache. She attended on a general practitioner. She was given pethidine for the headache and Maxolon which is an antiemetic. The medication resulted in an improvement in her vision and headache. She was sent home with Panadeine on that day.
In September 2004 the plaintiff was diagnosed with Graves' disease. Graves' disease is an auto-immune disorder by which the thyroid is overactive.
In November 2004 the plaintiff was hospitalised for her Graves' disease. She underwent a thyroidectomy. Since the removal of her thyroid gland the plaintiff has taken thyroxine to replace the hormone that would otherwise be produced by her thyroid.
In late August 2006 the plaintiff's mother was hospitalised in New Zealand for minor keyhole surgery. There were complications with the surgery which resulted in the plaintiff's mother remaining in hospital for longer than was expected. When the plaintiff's mother was eventually discharged from hospital she collapsed with a cardiac arrest and was returned to hospital and placed on life support. The plaintiff at this point flew to New Zealand to be with her mother. She stayed with her mother while her mother was in intensive care for about a week. However, at the end of this period she had to return to Perth for work and also because she was herself scheduled to undergo a surgical procedure.
On her return to Perth the plaintiff was anxious and concerned about her mother. She was having difficulty sleeping. She was prescribed temazepam by her general practitioner to help her sleep.
On 5 September 2006 the plaintiff underwent a colonoscopy and gastroscopy.
On 6 October 2006 the plaintiff's mother passed away.
In or around early 2007 the plaintiff developed depression. At various points during the period early 2007 through to May 2007 she consulted her general practitioner for her depression, stress, anxiety and suicidal ideation. She was prescribed antidepressant medication for her condition which she took.
On 10 May 2007 the plaintiff attempted to commit suicide by taking an overdose of her antidepressant medication.
On 11 May 2007 the plaintiff, following her attempted suicide, was admitted to the Joondalup Health Campus Mental Health Unit (Joondalup Mental Health Unit). She presented as anxious and depressed with suicidal ideations. She was discharged on 24 May 2007.
On 5 June 2007 the plaintiff was again admitted to the Joondalup Mental Health Unit. She presented with low mood and suicidal ideations. She was discharged on 13 June 2007. On discharge she was prescribed a number of medications including antidepressant medication and anti‑anxiety medication.
During the period June 2007 through to around May 2008 the plaintiff continued to experience depression, stress, anxiety and suicidal ideation. She consulted her general practitioner for her condition on a regular basis. She took prescribed antidepressants and other medication. She engaged in regular counselling with a clinical psychologist, Ms Linda Basson.
On 13 August 2007 the plaintiff was seen by Dr Gemma Edwards‑Smith, consultant psychiatrist, for the purpose of the preparation of a report relating to a workers' compensation claim that she had instituted. Dr Edwards‑Smith diagnosed the plaintiff as suffering from a major depressive episode with co‑morbid anxiety.
On 23 August 2007 the plaintiff saw Dr Andrew Worynski, gastroenterologist, for ongoing reflux symptoms. She complained of pain radiating into her scapular regions as well as a heavy sensation in her epigastric area. Dr Worynski concluded that the plaintiff's reflux was secondary to a large hiatus hernia and provided advice to her general practitioner as to the appropriate medication for her symptoms.
On 29 November 2007 the plaintiff, on referral by her general practitioner, consulted a psychiatrist, Dr Peter Melvill-Smith. Dr Melvill‑Smith diagnosed the plaintiff as suffering from a major depressive disorder with melancholic features and physiological shift symptoms. He considered that she had co‑morbid generalised anxiety disorder with dissociative phenomena possibly secondary to anxiety, personality vulnerability or protracted abuse throughout her life.
On 21 February 2008 the plaintiff again saw Dr Melvill‑Smith. She presented as suffering from an exacerbation of her depression and anxiety. She reported continued intermittent panic attacks and suicidal ideation. She also reported suffering occasional anxiety driven misperceptions of hallucinatory intensity and hypnogogic and hypnopompic auditory hallucinations.
On 20 March 2008 the plaintiff consulted her general practitioner. She reported that her bones ached and that she was fatigued.
On 28 March 2008 the plaintiff again consulted her general practitioner. She reported that she had leg pain and that she was very tender over her tibia bilaterally. Her general practitioner arranged for the plaintiff to undergo a bone scan. The results of the bone scan were negative.
On 11 April 2008 the plaintiff reported to her general practitioner that she was experiencing poor sleep, that she was agitated, that she was experiencing vivid dreams and that she had a fear of being forced to work.
On 7 May 2008 the plaintiff underwent an endoscopy performed by Dr Worynski as a follow up of her Barrett's Oesophagus. The endoscopy confirmed the existence of a large hiatus hernia.
On 15 May 2008 the plaintiff's worker's compensation claim that she had previously instituted against the Department of the Attorney-General (DotAG) was settled. About a week after her claim was settled the plaintiff travelled to New Zealand for a two‑week holiday. In addition, following the settlement of her worker's compensation claim the plaintiff became engaged to be married to Mr Ganesan Thillainath.
On 15 July 2008 the plaintiff consulted her general practitioner. The plaintiff reported that she was still seeing her psychologist but was otherwise well. The general practitioner assessed the plaintiff as looking 'much better in herself'.
On 28 August 2008 the plaintiff returned to see her general practitioner. She reported feeling soreness in her neck, elbows, left shoulder, lower back, hip and feet. She underwent various tests none of which revealed anything of significance. She was referred for physiotherapy and chiropractic treatment.
On 2 September 2008 the plaintiff saw her general practitioner again. She reported that her pain was now mainly in her elbow, hands and wrists. Her general practitioner formed the view that the plaintiff was suffering from post‑viral polyarthralgia.
On 20 October 2008 the plaintiff reported to her general practitioner that she was experiencing stress associated with both moving to her fiancé's house and her fiancé's daughter.
On 24 October 2008 the plaintiff attended on her general practitioner because she was suffering from pain and swelling in her feet.
On 7 February 2009 the plaintiff hurt her left foot while she walking on a raised garden bed. On 8 February 2009 the plaintiff went to a general practitioner after hour's clinic in relation to this injury. She was diagnosed as having suffered an Achilles avulsion.
On 20 February 2009 the plaintiff was admitted to Swan Hospital with a feeling of heaviness on the chest, shortness of breath, sweatiness and nausea. Initial examination of the plaintiff revealed no abnormality. The plaintiff left the hospital without treatment.

In cross-examination Mr Thillainath said that when he first met the plaintiff things were not that good. However, when she came back from New Zealand after seeing her family the plaintiff seemed to have a spring to her step. The spring seemed to develop when she was doing her beauty course.
Dr Mahon's evidence was that the plaintiff's ability to enjoy social and recreational activities has been severely impacted by the accident. He said that since the accident the plaintiff has been in constant pain which is worsened by sitting for any length of time and by walking any distance, and that she has therefore found her pain worse with driving or being driven any distance. He considers that she would find sitting in a cinema, for example, impossible.

Plaintiff's claim

On behalf of the plaintiff it is submitted that having regard to the circumstances of the accident, the 'all encompassing' nature of the pain symptoms that the plaintiff has experienced as a result of the accident, the nature of the treatment that the plaintiff has undergone in order to treat her symptoms, and the likelihood that the plaintiff's current levels of pain are likely to be present for the rest of her life an award of 40% of a most extreme case is 'not unreasonable'.
On behalf of the defendants it is submitted that there is no significant difference between the plaintiff's condition prior to the accident and her condition since the accident.

Award

Given my findings as to the injuries and pain symptoms which the plaintiff has suffered as a result of the accident, I am satisfied that her condition since the accident is worse than it was prior to the accident. I am satisfied that the accident has caused the plaintiff to suffer pain and suffering and a loss of enjoyment of life. Having said this, I do take into account in determining the appropriate award for this head of damage that prior to the accident the plaintiff's quality of life was for over fairly lengthy periods of time adversely affected by her medical and psychological problems and that there is a real possibility that even if the accident had not occurred the plaintiff would have continued to suffer from a variety of problems which would have impacted upon her quality of life: Seltsam Pty Limited v Ghaleb [111].
In all the circumstances, taking into account all of the relevant evidence of the plaintiff and the medical expert witnesses, I am of the view that damages for the plaintiff's pain and suffering and loss of enjoyment of life caused by the accident should be assessed at 25% of a most extreme case. It follows that I award $94,750 for the plaintiff's non‑pecuniary loss: Motor Vehicle Insurance Act, s 3C(2), s 3C(6).

Summary of award

In summary I assess damages as follows:
Past loss of earning capacity $61,697.51
Future loss of earning capacity $66,595.94
Past loss of superannuation    $5,866.31
Future loss of superannuation    $7,412.24
Past medical costs $91,458.08
Future medical costs $14,312.50
Past gratuitous services $18,319.47
Future travel and parking      $500.00
General damages $94,750.00
Total$360,912.05
Reducing this amount by 20% for contributory negligence I allow the plaintiff's claim in the amount of $288,729.64.

Annexure A