Wreford v Lyle - [2018] WADC 173

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WREFORD -v- LYLE [2018] WADC 173
CORAM:   BRADDOCK DCJ
HEARD:   15-22 NOVEMBER 2017
DELIVERED          :   17 DECEMBER 2018
FILE NO/S:   CIV 1795 of 2016
BETWEEN:   JOVANNA WREFORD
Plaintiff
AND
CRAIG MAXWELL LYLE
Defendant

Catchwords:

Torts - Negligence - Motor vehicle accident - Bicycle and 4WD - Contributory negligence - Apportionment - Damages - Pre-existing conditions - Failure to mitigate - Psychological injury - Future economic loss

Legislation:

Civil Liability Act 2002, s 5B, s 5C, 5D
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947, s 4, s 4(1)
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C, s 3D

Result:

Judgment for the plaintiff
Contributory negligence assessed at 30%

Representation:

Counsel:

Plaintiff	:	Mr J R Criddle
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Bradford Legal
Defendant	:	Moray & Agnew Lawyers

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

Fontaine v Quality Platers (1994) 12 WAR 71
Knight v Maclean [2002] NSWCA 314
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Manly v Alexander (2005) 223 ALR 228
Medlin v SGIC (1995) 182 CLR 1
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Purcell v Watson (1979) 26 ALR 235
Purkess v Critenden (1965) 114 CLR 164
Stapley v Gypsum Mines Limited [1953] AC 663
Wyong Shire Council v Shirt (1980) 146 CLR 40

BRADDOCK DCJ:

Introduction

South of the River Swan in Perth Western Australia, there is a road which runs roughly from west to east parallel to the south side of the river. This is Mill Point Road. It intersects with two other streets, Douglas Avenue and Tate Street, in the vicinity of a butcher's shop called Clayton's. Tate Street joins Mill Point Road at a right angle on the southern side next to Clayton's, while Douglas Avenue crosses at an angle of approximately 60 degrees at the north western corner of the intersection. Traffic lights control Douglas Avenue and Mill Point Road, but not Tate Street (exhibits 2, 3 ‑ 26, 3 ‑ 27).
On 12 June 2013, the plaintiff, Jovanna Wreford (Ms Wreford) went for a ride on her bicycle around the Swan River. Towards the end of her ride, she was heading east along the footpath on Mill Point Road, South Perth, in the vicinity of Clayton's butchery. It was about 4.00 pm. Her home was just around the corner, in Douglas Avenue.
That afternoon, the defendant, Craig Maxwell Lyle (Mr Lyle) had decided to visit Clayton's butchery and had driven there in his Toyota Landcruiser (the 4WD). There is a carpark for customers of Clayton's butchery beside the shop, with exits both onto Tate Street and Mill Point Road. Having purchased his meat, Mr Lyle went to leave the carpark via the exit onto Mill Point Road.
The carpark exit gave onto the footpath adjoining the road. That point on Mill Point Road was a short distance, about 50 m, from the traffic lights which control the intersection of Mill Point Road with Douglas Avenue. Between Clayton's butchery and the intersection is Tate Street, which joins Mill Point Road on the other side of Clayton's butchery from the car park. Cars entering Mill Point Road from Tate Street can only turn left, due to a central strip. There are marked cycle lanes on both sides of Mill Point Road. There is a small strip of grass on the road side of the footpath, interrupted by a hard surface cross‑over for the carpark exit.
When he drove out of the carpark, Mr Lyle crossed the footpath. Ms Wreford's progress along the path was obstructed by the 4WD. Mr Lyle stopped before entering the road, to wait for the road to be clear, in order to make a right turn onto Mill Point Road. Ms Wreford was approaching from his left‑hand side.
Ms Wreford says that she stopped when she reached the 4WD. Mr Lyle did not see her. She decided to proceed around the front of the 4WD and mounted her bicycle over the small grass strip into the cycle lane in order to do so. Mr Lyle still did not see her. He proceeded to make his turn, resulting in Ms Wreford being hit by the 4WD and run over.
As a result of the accident, Ms Wreford received life threatening injuries. She was taken by ambulance to Royal Perth Hospital (RPH) and admitted to intensive care. She had broken ribs on both sides of her body, a broken shoulder and collar bone and bilateral pneumothoraces. She has been left with significant permanent disabilities, affecting her left shoulder and collarbone, her ribcage and her eyesight. As a result of the accident, it is claimed that she suffers from continuing post‑traumatic stress disorder (PTSD) with other psychological symptoms. She has not returned to work save for a trial period of some weeks in late 2013.

The action

On 24 May 2016, Ms Wreford issued a writ claiming damages for personal injuries against Mr Lyle due to his negligent driving resulting in the road traffic accident.
The particulars pleaded were:
1.Failed to keep a proper lookout;
2.Failed to observe, heed or detect the presence of the plaintiff;
3.Failed to swerve, steer or otherwise attempt to avoid a collision with the plaintiff; and
4.Failed to apply his brakes timeously or at all.
Mr Lyle has admitted liability for his negligence in failing to avoid the collision, but otherwise denied the allegations of negligence put against him. He pleaded that the accident was caused or contributed to by the plaintiff's negligence. The particulars are given as:
1.Failed to take care for her own safety;
2.Unreasonably placed herself in a position of danger by not taking steps to avoid being struck by the defendant's vehicle;
3.Rode her bicycle in front of the defendant's vehicle when it was unsafe to do so; and
4.Failed to keep any proper lookout.
The defence challenged the extent of Ms Wreford's injuries. It was alleged that there were pre‑existing conditions which caused or contributed to Ms Wreford's current disabilities. It is alleged that Ms Wreford has failed to mitigate her loss by unreasonably refusing to take medication to ameliorate her psychological symptoms. It was also pleaded that any psychological symptoms had been aggravated by the effect of witnessing a traffic accident on 5 May 2017. This plea was not pursued at trial at all.
From the opening submissions, it was apparent that the precise manner in which the accident occurred and the contribution of Ms Wreford to the accident were significant issues.

Issues

In this trial, the following questions fall to be determined:
1.Was Ms Wreford negligent in moving her bicycle and herself around the front of Mr Lyle's 4WD?
2.If so, how is liability to be apportioned?
3.Did Ms Wreford suffer from either a significant psychological condition or ophthalmic condition prior to the accident?
4.What are the effects of any pre-existing conditions?
5.Has Ms Wreford's refusal to take recommended medications contributed to her psychological condition, and if so, does this amount to a future to mitigate her loss?
6.What, if any, is Ms Wreford's residual earning capacity?

The evidence

The evidence about the accident itself came from Ms Wreford, Mr Lyle and a Mr Brierley, together with maps and photographs of the location. There was no formal police report or evidence. Photographs taken by the police on the afternoon in question were tendered, but added nothing of relevance.
The medical evidence focused on the ophthalmic, cognitive and psychological aspects of Ms Wreford's injuries. There was little dispute about the orthopaedic and other physical injuries. The issues were the extent and aetiology of her residual condition.
Ms Wreford gave detailed evidence of the effects of her injuries on her capacities, both for work and other activities, the expenses associated with her care and the adjustments she has made to her life post‑accident.

Ms Wreford

Ms Wreford's evidence can be considered in four parts: her personal background and work history, the accident, its consequences for her and the medical conditions that she suffered both prior to the accident and subsequently.

The accident

On the day of the accident, Ms Wreford decided to go for a bike ride in the middle of the afternoon. She set off at about 3.15 pm down Douglas Avenue from her home to the bike path at Riverside Drive. She described it as a usual route she would take. She went around the river, over the bridges, and was returning along Mill Point Road towards Douglas Avenue. After Coode Street, she rode on the north foot path for a short distance and then crossed to the other side of Mill Point Road and continued to ride on the south footpath in an easterly direction towards the traffic lights at Douglas Avenue. When she was near Leanne Street, she saw a 4WD vehicle at the exit of Clayton's carpark. She described riding up to the 4WD until she was about 15 cm (6 inches) from it. She said the driver was looking to his right. She stopped at that point and noticed another car behind him in the car park. She put her left foot to the ground and waited.
She described the car she saw behind him in the car park as being a maroon sedan. She said that it reversed and took the other exit from the car park into Tate Street. She said there were other cars in car park. She remained in her position on her bike. She said that the driver of the 4WD did not move his head once. She said she was level with his wing mirror and saw the lights turn red at Mill Point Road. She said that he 'nudged' forwards, then came to a stop. She said that this was because a car came out of Tate Street. She said he had moved forward about 30 cm leaving the front wheel of her bicycle at the centre of his passenger door. She rang her bell and shouted out. She said she got no response. She said the driver was still looking to his right at the oncoming traffic. She said the traffic was coming from Douglas Avenue. She observed the traffic lights to change again. She said she saw a car set off from Douglas Avenue direction. The driver of the 4WD did not look to traffic coming from his left‑hand side. She said she was watching all the time. She said that she worked out that she had enough time to 'wizz' around the front of his 4WD.
Initially, in evidence‑in‑chief, she described what happened next as:
I was just to the left of his bull bar, he had nudged forward, he hit me not enough to fall. I just swayed to the left and put my left foot down to stop me from falling, he had stopped. I got upright. The oncoming car had made him stop … I pushed back … then he floored it. The car proceeded to go on top of me. All I could see was the front tyre go over my head and helmet. There was screaming to stop. The next thing I know I was conscious and people were saying how did she get there – I was face down and my bike was in front of me about half a metre away from me. (slightly paraphrased t 79)
She went on to describe how she manoeuvred her bike to go around the front of the vehicle, with reference to photographs. At a later stage in her evidence, which had been interrupted into interpose other witnesses, she produced [exhibit 18] further photographs that she and her son had taken at the site of the accident overnight after the commencement of her evidence. She then described with reference to the photos, where the vehicle was and how she had moved her bicycle. In effect, she had left the footpath going over the grass section between the path and the road, to come around the front of the 4WD, at an angle of about 45 degrees, facing towards the real estate agent premises across the road.
Under cross‑examination, she maintained that the traffic lights changed three times whilst she waited and there were quite a lot of cars. She explained that at the time she took off around the front of the 4WD, a car was coming through the intersection from the Douglas Avenue side, and said this car was white. She described there being quite a few cars coming from Coode Street. She said that the cars were banked up on the other side of Mill Point Road. The implication of this was that these would be blocking the turn that the 4WD was going to make. She did not agree that there was only one car stationary at the red lights travelling east. She maintained that the 4WD had reversed after impact and driven back over her head.
She said that she judged that, when the white car was coming from the intersection, the 4WD would not be able to make the turn. She said that the driver of the 4WD had not turned his head once. She said that when she initially was hit, she swayed but did not fall off the bike. She maintained that it was safe enough to go round the front of the car. She confirmed that the 4WD was not hit by any other car. She confirmed that she believed that the driver had not seen her when she rode in front of the 4WD. She agreed to that she was not in a hurry and could have waited for the vehicle to move. She denied that she could have walked through the car park. Firmly she denied that she had misjudged the manoeuvre that she made.

Personal history

Ms Wreford was born in a suburb of Perth on 21 December 1967. She was educated to year 11 at high school and then obtained certificates in secretarial studies and bookkeeping in 1983. Even before completing her education, she had worked at Coles from the age of 14, and commenced full‑time employment with that firm upon graduation. As a junior, she worked in the office rising to be 'second‑in‑charge' office manager. She went on to work for another company in payroll systems, upgrading the computerised payroll, handling 13 business payrolls, and dealing with end of year financial requirements.
From there she moved to an accounting firm. Subsequently she was recruited by Sylvia Perrin, a former manager and colleague, to work in a superannuation brokerage company, from 1991 to 1993. She did a computer training course at TAFE for four months before leaving, in 1993, to get married. She moved with her husband to the United Kingdom for a year. She obtained employment there, which also involved computing skills and training, returning to Perth in November 1993.
She and her husband set up a partnership in IT. She worked there as an IT consultant, until her first child was born on 27 November 1995. She continued to work in 1996. The company contracted her services to large mining corporations. Her second son was born on 13 January 1998. In 2000, she and her husband built a house in Mindarie, which she managed as an owner builder. In 2002, she and her husband wound up the IT consultancy business and commenced another venture in murals and wallpapers.
The marriage broke down and Ms Wreford separated from her husband in late 2002. She was divorced in September 2004. The separation was not amicable, leading to a Family Court trial. The house was sold, her husband retained the business. Ultimately, in 2005, Ms Wreford and her sons, now three of them, moved into a property in Douglas Avenue.
In July 2006, Ms Wreford started work at what was then called Burswood Casino (the Casino) as a croupier-dealer, on a part-time basis. There was some flexibility available in the hours contracted and overtime was available. This was shift work, which she was able to fit around the children's needs, with assistance from a neighbour, and working shifts when the boys spent time with their father.
In 2007, she said, due to some resentment about shift arrangements, Ms Wreford became the subject of bullying at work by one particular woman, who was abusive and made difficulties with Ms Wreford's shift patterns and work locations.
Due to this behaviour, which she said was continuous, Ms Wreford cut back her shifts. She made no complaint. She attempted to organise her rosters to maximise overtime, whilst not losing her status as single supporting parent with Centrelink.
In August 2010, she reduced her hours to the 15 to 32 hour 'bracket', which meant effectively two shifts per week.
Ms Wreford describes suffering from high anxiety levels, such that in 2012 she further reduced her hours for a limited period by agreement with her employer. She said she also wanted to get back into IT and web design.
At the end of 2012, the management at work had become aware of the situation of bullying, and action was taken. In the meantime, she had sought medical assistance from her GP. She gave evidence that she tried, on his recommendation, some antidepressant medications, but she said they did not assist her and they made her sick.
After that, she said an acquaintance gave her some Valium to try which she found to be of assistance. She went to her GP, Dr O'Mahony to seek this medication. She said he refused to prescribe them for her. As a result she said she 'went and found a doctor who would prescribe it', Dr Winnie Lo. She also went to Bentley Hospital to seek a prescription of Valium, in December 2012. Ms Wreford admitted that she had lied about her history to obtain the drug.
She continued on limited shifts at Burswood. She said that she intended to set up her own business. She purchased an online course from an entity called 'Excel in Business' in Online Web Design. She produced in evidence a certificate, to show the units she said she had completed. It is dated '23/7/2013'. Her evidence was that the units were completed before the accident. This course she confirmed was not examined in any way, but rather completed online at the student's own pace.
She obtained a medical certificate from Dr Lo on 5 June 2013, stating that she was fit for normal duties at work. Ms Wreford said that this was on the basis that she understood there was no further risk of bullying.
She said her intention was to continue to work at the Casino whilst building a client base herself, or to seek employment within the IT industry.
At the time of the accident her sons were 17, 15, 13 and all were still engaged in education.
She considered that she could work at the Casino whilst building her own business because the Casino work paid good money.
Prior to the accident she described herself as an 'outdoorsy' person, whose main exercise was running, plus bike riding 'every so often' and kayaking.

Medical history

Relevant to these proceedings, Ms Wreford had had a bilateral breast augmentation in 2006.
In 2003, she was diagnosed with increased intraocular pressure, she consulted Dr D'Sousa, an ophthalmologist, and was treated by the application of drops. In 2011, she had haemorrhaging in her right eye. She consulted Dr D'Souza again. Dr D'Souza explained, in evidence, that Ms Wreford had very high intraocular pressures. She was diagnosed with open angle glaucoma. She was fortunate not to have any glaucoma damage. She was treated with medications to lower the pressures in her eyes successfully for several years. In 2011, when Dr D'Souza saw Ms Wreford again, she presented with blurred vision in her right eye due to a vitreous haemorrhage. The vitreous is gel filled with largely clear liquid which was subject to blurring from bleeding. He identified the source of the bleeding from some blood vessels. These cleared up over a period of about three months. Dr D'Souza saw Ms Wreford at about six month intervals between 2003 and 2011 then more frequently in 2011 – 2012. He first saw her after the accident on 5 August 2013.
Dr D'Souza's evidence was that prior to the accident the pressure in her eyes was well controlled with simple measures. He suspected that at some time she would have come to operative treatment in one or other eye, if the drainage mechanism failed. The vitreous haemorrhages were hoped to simply cease without intervention. It was not expected to be a long term problem. He said there was a possibility of glaucoma, but pressure was well controlled and he was not expecting any damage. She would have been subject to ongoing check-ups.

Ms Wreford's mental health prior to the accident was affected by anxiety, which she attributed solely to the stressful circumstance of bullying at work. She accepted that she had suffered anxiety/depression in the wake of her marriage breakdown earlier in 2002. The nature and extent of her pre-accident psychological condition was later explored in evidence with her treating psychologist Ms Connolly.

Consequences of the accident

Ms Wreford described her experiences immediately after the accident in intensive care and then in the high dependency unit at RPH. This was undoubtedly a time of great distress, with multiple medical and surgical interventions, and significant pain relief medication. She had help from family visiting her as well as nursing care. She suffered hallucinations. I have considerable reservations about the accuracy of her account in relation to details of that period, because of both the trauma she had suffered and pain relief measures. She remained in ICU until 15 June 2013 and then the High Dependency Unit until 25 June 2013. She then was treated in State Major Trauma Unit, with various therapies. At this time she encountered difficulties with her sight. She was discharged on 1 July 2013. Her sister took her home. She still suffered significant pain in her chest, with breathing, in her wrist and her vision was blurred. She consulted her GP, Dr O'Mahony for ongoing pain relief, the next day.
She attended RPH for review in July and August 2013. Arrangements were made for an orthopaedic surgeon, Mr Peter Campbell, to repair her broken clavicle which he did in January 2014.
She said she noticed memory problems from the time she was discharged from hospital. She said she was slurring her words. She reported that she was no longer able to do mental arithmetic or Sudoku as she had prior to her injuries.
She required dental treatment for a chipped tooth, which she underwent in February 2014. She attended on Dr D'Souza for her vision in the right eye. He referred her to Dr Yellachich. She had surgery, 11 September 2013, a right vitrectomy.
She was referred for physiotherapy in November 2013 for back pain on her right-hand side. She lost a lot of weight.
In October 2013, she attempted to return to work at the Casino, one shift a week over 15 weeks. She said she could not cope with her duties.
She consulted Dr Goodheart in mid‑2014 in relation to her memory and cognitive problems. She said she experienced falls due to balance problems and pain in her right wrist.
There was no dispute that she had expenses for pain medications, eye drops, and consultations. Later in April 2015, she consulted Ms Connolly for psychological therapy. In March 2016, she was reviewed by Ms Vidovich, a neuropsychologist. Ms Wreford also said the scar on her scalp was sensitive, and that she was missing some ear cartilage.
She said her memory problems were ongoing especially in relation to new information. She complained of still 'stumbling' with words, but said this was a little better. She said she had a very short concentration span.
She said she had mood swings and had lost a lot of friends. She said she still had pain in her left shoulder and said that the scarring 'gets noticed a lot'. She avoids looking at herself. She said her ribs were deformed, her clothes did not fit well, she could still be unstable on her feet, she does not sleep well and suffers leg spasms. She said in evidence that she 'relived the accident every night'. She complained of high stress levels, and a loss of interest in social activities. She does not normally drive herself except 'under duress'. Her vision was such that she sold her car.
She still lives in the same house close to the accident location and will walk past it. She said 'I'm super anxious every day to start off with walking my dog'. She is sensitive to the sounds of ambulances, sirens, bicycles, driveways and the sight of people in wheelchairs.
She still takes pain killers and has difficulty with deep breathing. She has not ridden a bicycle since the accident. She cannot run. She relies on public transport and her children. She takes no exercise. She does not do physiotherapy exercises.
She said that her body is deformed and disgusting.
The court was able discreetly to view her scarring and torso. There is visible deformity of the ribcage and right scapula, her clavicle was shortened, with a scar which was neat, fine and not very obvious, although she felt its unsightliness keenly.
After her discharge from hospital she had domestic assistance from her sister, friends delivered meals, her neighbour did the lawn. Her children helped her. She was able to start cooking after a couple of weeks, but also relied on takeaways. She started doing some shopping after six weeks, but had help up to six months for 'major stuff'. After six months she was looking after her house, gradually she said, doing one room at a time.
She said that she could not cope physically with work as a croupier or mentally with IT or web design.

Assessment

Ms Wreford was cross‑examined about her pursuit of prescriptions for the drug Valium, and particularly her attendance at Bentley Hospital. Her explanations were less than satisfactory in respect of the sequence in which she consulted Dr O'Mahony and Dr Lo about Valium. She was frank in that she admitted she had lied to staff at Bentley Hospital, on the advice of a woman she met once in a nightclub, she said in order to try to obtain the prescription she desired.
The medical records however show she was in fact referred to Bentley Hospital by Dr Lo who had already been prescribing Valium for her from October 2012. She attended Bentley on 11 December 2012 and 17 December 2012 and again on 10 January 2013. According to the hospital notes, she complained of undiagnosed ADD as a child, poor concentration and being physically unwell from a year previously with chronic fatigue. She also said she was concerned she may lose her job, and of being stressed and bullied. In January 2013, she complained that Dr Lo would not give her repeats of Valium and said she had applied for a disability pension. She said she was very forgetful. Under cross‑examination she did not dispute that she had said these things. She accepted she had lied, but was otherwise evasive when confronted with the record.
Dr Lo certified Ms Wreford as medically unfit for more than minimal hours in February 2013. Her referral to Bentley, dated 11 December 2012, states that Ms Wreford was using roughly 5 mg Valium per day. The practice notes (of Reynolds Road Medical Centre) tendered in evidence, show that Dr Lo had prescribed Valium at this dose on 24 October 2012, and 2 November and 11 December.
My conclusions from these events are reached conscious of the stress that giving evidence causes and Ms Wreford's current psychological problems. However, whilst taking those matters into consideration, Ms Wreford impressed as evasive and whilst conceding she lied about some matters to Bentley Hospital, she seemed to deny the facts underlying some statements, such as forgetfulness, applying for disability pension, having poor concentration as a child, whilst accepting she had what she described as chronic fatigue. She denied she was concerned she would lose her job. She told Bentley staff that Dr Lo would not give her further Valium. Dr Lo's record shows a script on 11 December 2012. She had also clearly forgotten that she was at Bentley Hospital on Dr Lo's referral.
Taken as a whole, this is a picture of a woman suffering from serious anxiety and determined to do whatever was needed, including lying to medical staff, to obtain Valium, when it appears that Dr Lo was prescribing the drug for her. I accept that Dr Lo wanted a psychiatric assessment, however, these events and her admission of untruthfulness do Ms Wreford no credit at all. It is difficult to determine which, if any, of her complaints to Bentley Hospital were genuine.
It is also remarkable that while in evidence she emphasised that all the stress, anxiety and its consequences were the result of bullying at work, when queried directly, she said she never considered getting another job, because she had made good friends and it paid well, that they had accommodated her needs and she had dealt with it quite well for a number of years. For these reasons I am unable to accept at face value the unsupported evidence of Ms Wreford as to the cause and extent of her anxiety at the time prior to the accident. It is also clear is that she was, on her own admission, 'doctor shopping' for Valium.
I am also unable to accept that Ms Wreford had obtained any commercially recognised qualifications in 'Web Design' from 'Excel in Business'. The only evidence in support of this proposition is hers, in that she says she completed online coursework, pursuant to a discounted voucher, which on its face was valid between 26 June 2012 and 26 July 2012. She said she downloaded the papers and studied, whilst the document itself said 'no downloads'. There was no assessment or evaluation of the course work. She printed the certificate of completion herself and produced it (exhibit 10).
She accepted that she had no experience in current web design. She said she was just starting to set up her own 'dummy' website. Under cross‑examination she was not able to describe the subject matter of 'web design and tools' in any detail. She said her memory was affected by her injuries. Making allowances for that, she did nothing to elaborate on what she had studied or learned. Neither was there any other evidence as to the course itself or her completion of it. The certificate showed all units completed on 23 July 2013, which Ms Wreford said was due to her neglecting to attend to the record as she studied. I found this to be unconvincing, as one would expect an online student to record the completion of each unit, if only for her own satisfaction. Ultimately, I was unable to place any weight on the course 'certificate' or Ms Wreford's assertions as to its completion and significance.
On balance, I did not consider that Ms Wreford was necessarily a consciously dishonest witness, but she was inclined to verbal overstatement and over dramatisation. This appeared to be her style of expression. However, her admissions with regard to lying to obtain Valium from Bentley Hospital, giving the impression she was otherwise unable to obtain the drug, when in fact Dr Lo had already given her several scripts, made it apparent that she was prepared to misstate the facts when she perceived it to be in her interests. This behaviour may indicate how unwell she was at that time and what she was prepared to do for the drug she considered to be beneficial, contrary to medical advice.
I was unable to accept Ms Wreford as a reliable witness in relation to the accident itself. Whilst she gave confident evidence, and was utterly certain of what she believed to have occurred, she made no allowance for her own trauma on that day or subsequently. Trauma, in my view, would undoubtedly have played a part in her ability accurately to recall and sequence events. My assessment was that much of her account was a reconstruction of events in her mind, with a clear aim of absolving herself from any responsibility for the accident. She could not concede the possibility that she made an error of judgment in riding in front of Mr Lyle's 4WD. Her re‑enactment of the position of her bicycle, done with help of her son during the trial in order to produce photos to illustrate her evidence was unusual. It was also totally inconsistent with the level of stress she said the location caused her to suffer when she walked her dog.
I do accept that Ms Wreford suffered serious and life threatening injuries in the accident. She experienced shock, pain and no doubt great fear, and would have suffered during her time in hospital, particularly initially. She underwent invasive and painful treatment and was heavily sedated. Her distress is understandable, but her recall of events is also undoubtedly affected by her medications and circumstances.
It was not disputed that Ms Wreford is left with significant disabilities, due to her multiple injuries. For an active woman, she has suffered a real loss of enjoyment of life. She suffers anxiety and memory symptoms. She has ongoing pain, scarring and eye problems. It has affected adversely her social life and activities. She cannot do heavy housework.
Nevertheless, she was able to attempt a return to work in October 2013, and regained much of her personal independence from six weeks after the accident.

Mr Lyle

Mr Lyle had driven his Toyota Landcruiser to Clayton's butchery to buy meat that afternoon. He said the 4WD was in very good condition and he had owned it for a few years. He arrived at about 4 pm parked in the car park, then made his purchases. As he left the shop, there was one Black Audi vehicle next to him in the car park together with the butchers' van. He followed a lady out of the shop who went to the black Audi. He said that she seemed to be on the phone, so he backed out of his parking space to leave and moved to the edge of the footpath, where he stopped level with some shop signs.
The point at which he first stopped has a chain across the entrance to the car park, as shown in the photo exhibit 3.6. Mr Lyle then moved further out until the front of the vehicle was positioned just before the cycle lane. He stopped to double‑check for cars from both directions. It was his intention to turn right. He was going to go straight on at the Douglas Avenue intersection, controlled by traffic lights. He said he did not hear anything until he was halfway across the first traffic lane on his side of Mill Point Road. He said he did not feel anything. Then he heard something that he thought might be a crate or something that had fallen off a vehicle. He said he never saw the lady on the bicycle. He confirmed he looked both ways at his final stop point.
He described the traffic conditions as being 'light with one car stopped at the lights'. He said that when he first looked, the lights had just turned red and the car had stopped. He said when he made his turn, the lights were still red and the car was still there. At the time he first heard something he said he looked in his right hand mirror and saw something on the road. He estimated that from the time that he stopped, at the point shown in the photograph, until he moved out into the road would have been less than 15 seconds.
In cross‑examination, he said that as far as he was aware there were no vehicles behind him when he went to leave the butchers' car park. He said the driver of the Audi vehicle was nowhere to be seen after the accident. He denied that he was waiting for any length of time to make the turn, and said 'the traffic was very kind to him' and he was there for no more than about 10 seconds. He confirmed that he had stopped and looked right then left and had not seen anything along the footpath. He confirmed that there was nothing to obscure his vision. He said that the path appears to extend back to the left at a slight angle, but that he could see 10 m. To look back along the footpath on the left‑hand side, he would have to have turned his head more than 90 degrees. He said that the road was not straight and therefore his left‑hand side bumper would have been further forward than his right hand side when he was at the yellow line designating the bike lane. He denied that he had stopped at first 60 cm back from the yellow line and then moved 30 cm further forward. He denied that he had stopped because a vehicle had exited Tate Street. He confirmed that he looked to see cars coming through from the Coode Street lights (to his left) towards him, but did not look back over his shoulder.
He accepted that he had an obligation to give way to traffic on the road and pedestrians on the path. He could not explain how Ms Wreford came to be under the car, because he did not see where she came from. He had pleaded guilty to a charge of 'failing to give way' under reg 57(1)C of the Road Traffic Code 2000 (WA). He denied any suggestion that he had been affected by alcohol at a time. He said he thought he was lucky that the traffic was so light on that afternoon. He emphatically denied that he stopped after moving forward, because of a car entering from Tate Street and further denied that he subsequently waited for the traffic to clear. He said there was only one car stopped at the intersection which he had described. He denied that he proceeded halfway into the lane and then stopped. He agreed that he remembered hearing somebody yelling. It was put to him that he had stopped and looked both ways which he denied, saying only that he had looked in the rear vision mirror. He said he heard yelling and stopped when he got across the road. He had not seen anything prior to that. Significantly, it was not put to him that he had, at any time, reversed the car.
Mr Lyle was a careful, measured witness, and betrayed no emotion. His evidence, consistently with the pleadings, confirmed a complete failure to see Ms Wreford, who must have been very close to his vehicle on the left-hand side before she moved in front of him.

Mr Brierley

Philip Edward Brierley is a geologist, who at the time of trial resided in Guildford. On the day of the accident, he was travelling home from his work at Jandakot. At that time, he was living on Mill Point Road. He was driving a red Hyundai. He said that as he approached the lights near the Clayton's butchers shop, he saw they were red and slowed down to stop. He said there is one lane going straight ahead and one that turns right at the intersection with Douglas Avenue. He said he had his window down, and something caught his attention. He was unable to say exactly what. He turned to his right and saw a lady on a bike in front of white 4WD vehicle which was coming out of the butcher's car park. He said that the bike was right in front of the car; right in front of the bonnet. He said the 4WD moved forward, the lady was pulled underneath the bonnet and she tilted towards him at 45 degrees. He said he saw the 4WD stop and the driver turned his head from side to side, then he moved forward again. The cyclist was pulled further under the vehicle. The 4WD stopped again, he was not quite sure exactly where the cyclist was then. However, he said he had a vivid recollection of the rear wheels going over her and then the vehicle moved right across the road as she was underneath. He said she ended up in the middle of the road. He got out of his car and called for assistance. At that point, the cyclist was lying roughly on the red median strip with her feet towards the butcher's shop and her head towards the white car. She was facedown and her helmet was in pieces. He said he did not see the 4WD reverse at all.
Under cross‑examination, he said that he did not see any traffic travelling from the opposite direction. When he first saw the 4WD, it was creeping slowly forward. He said he could see the bike was right in front of the bonnet. He said that when he first saw her she was already starting to be pulled under the vehicle. He said he first saw the bike tilting over. He confirmed that the 4WD stopped and the driver appeared to look right and left. Then he drove across the road and the lady was pulled under. He saw the right rear tyre go over her thigh. He did not see where her head was but saw that fragments of helmet were on the road. He said that when he stopped at the intersection, the volume of traffic was light. He added that this was his daily 'commute' and that although the traffic varies, he said it was never very busy.
Mr Brierley was a careful witness, who from his account did not see the start of the incident. His attention was somehow caught as Ms Wreford was being run over by the 4WD. His evidence is significant, in that it confirms that the traffic on that afternoon at that point on Mill Point Road was light, and that the lights governing traffic along that road were red at the time of the accident. Further, he saw the 4WD pause briefly as it executed the right turn onto the road. His evidence provides no support for any suggestion that the 4WD reversed at any stage.

Ms Perrin

Sylvia Perrin is a long term friend of Ms Wreford who lives in Victoria Park. She is retired. She met Ms Wreford when she was 19, describing her as competent, smart and well‑groomed. Ms Wreford was an applicant for a job as payroll clerk at the company Ms Perrin then managed, and she employed her immediately. She found her work and work ethic to be excellent. Later she employed her again at another company. They became friends. Although Ms Perrin moved to Sydney for 18 years they kept in touch and visited for holidays. Their children and her grandchildren knew each other.
She described Ms Wreford since the accident as being much slower, not her normal dynamic self. She did not describe her as anxious, complaining of chronic fatigue, unable to sleep or forgetful before the accident at all. She was unaware that Ms Wreford had suffered any problems at work, or stress, anxiety or other psychological issues prior to the incident.
I accept her evidence about the young Ms Wreford when she worked with her and I do not doubt her account of Ms Wreford's changed condition.

Mr Carrie

Wayne Michael Carrie is a manager at the Casino in Perth, he had worked there since 1985 and met Ms Wreford at one of the 'dealer schools'. He saw her approximately once per week. She was a diligent caring and responsible employee. He was not aware of any performance management difficulties or any bullying issues with Ms Wreford. He explained the roster system at the Casino. He was not cross‑examined. His evidence does not support the existence of any significant bullying issue causing management concern in the long term.

The law

Division 2 and div 3 of the Civil Liability Act 2002 (CLA) deal with the general principles concerning duty of care, causation and onus of proof relevant to liability for harm caused by the fault of a person and it is not necessary to repeat these in their entirety here.
Mr Lyle was required to exercise reasonable care in driving his 4WD. The exercise of reasonable care requires a driver to take into account that other road users will not always take due care: Purcell v Watson (1979) 26 ALR 235, 240; Knight v Maclean [2002] NSWCA 314 [44]. The High Court pointed out in Manly v Alexander (2005) 223 ALR 228 at [11] - [12] that a driver must pay reasonable attention to all that is happening on or near a roadway that may present a source of danger. The exercise of reasonable care requires the driver to control the speed the direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle at the time, to take reasonable steps to react to those events.
Those responsible for large and powerful vehicles have to be aware of the great damage that can be done to those less protected and thus vulnerable using the roads. They need to be aware of the erratic behaviour of some groups of road users, particularly children, and the dangers of certain types of location. The duty of every road user is to take reasonable care for the safety of other road users, to avoid injury to them and damage to other vehicles.
Section 5B of the CLA provides:
5B. General principles
(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); and
(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 5C(1) of the CLA provides:
(1)A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements —
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
Section 5D of the CLA provides that in determining liability for damages for harm caused by the fault of a person the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
The court must determine what a reasonable person would do in response to a relevant risk, which in turn requires a consideration of the magnitude of the risk, the degree of probability of its occurrence in combination with other conflicting responsibilities and the difficulty or inconvenience attached to taking evasive or elevating action: see Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 – 48.
The Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 provides a statutory basis for the assessment of contributory negligence in Western Australia. Section 4(1) of that Act 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 consequence 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 the extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff.
The standard of care to be applied is the standard set out in the CLA s 5B(1). It is the standard of a reasonable person, in the position of the person who is hurt, on the basis of what that person knew or ought to have known at the time.
Mr Lyle admitted liability for his negligence in failing to avoid the collision, as pleaded. Whilst for the purposes of this action it is not necessary to make any additional finding of negligence, I take the view that he also failed to keep a proper look out, as on the evidence he said he did not see Ms Wreford, and she was clearly there to be seen.
Mr Lyle pleaded contributory negligence, the particulars have been previously set out earlier. At trial, it was accepted that the relevant particular was: (3) that she rode her bicycle in front of the defendant's vehicle when it was unsafe to do so.

Findings on liability

There is no doubt that Ms Wreford rode her bicycle in front of Mr Lyle's 4WD. On her own evidence, she was riding along the south footpath in an easterly direction towards Douglas Avenue on her bicycle. She saw a 4WD at the exit to Clayton's Butchers carpark. She rode up to the 4WD. Further details of what she said she did next are set out in [17] – [22] of these reasons above. The question is whether she exposed herself to a risk of harm.
Mr Lyle's evidence is that he was entirely unaware of Ms Wreford's presence, he never saw her on the bicycle, and did not hear anything or feel anything until after the impact had occurred. Both Mr Lyle and the independent witness, Mr Brierley, describe the traffic conditions as light. Mr Lyle said he stopped and looked towards the Douglas Avenue traffic lights which he said had just turned red. He said that when he made the turn, the lights were still red. Mr Brierley did not see the start of the incident. He was attracted by something which caught his attention, when he turned his head and saw a lady on a bicycle in front of a 4WD vehicle. Mr Brierley also said that the traffic was light at that point on that afternoon and he stopped at the traffic lights that were red at Douglas Avenue.
I am unable to accept Ms Wreford's evidence as to the time she waited beside the 4WD before moving in front of it. This conflicts with both Mr Lyle's evidence and Mr Brierley's evidence as to the traffic conditions, the changing of the lights, and the events that happened. Ms Wreford's account was that she judged, because a car was coming through the lights from Douglas Avenue towards the 4WD and herself, it was safe to come around the front of the vehicle, because it would not move forward. However, as a matter of logic, if such a car had been coming from the Douglas Avenue lights, it would have at least had to stop when Mr Lyle's vehicle moved out. It might have collided with the 4WD, if unable to stop. The driver would have been a witness to the accident. Ms Wreford's proposition is unsupported by any other evidence.
I reject Ms Wreford's assertion that it was safe for her, in the circumstances, to move in front of the 4WD. She knew, on her own evidence, that the 4WD was intending to pull out. On my findings, there was nothing to prevent the 4WD moving forward at the time. Furthermore, Ms Wreford, on her own account, believed that Mr Lyle had not seen her. Counsel for Ms Wreford argued strenuously that there was no risk and it was not unsafe, because the 4WD was stationery. The submission was that any attempt to ride in front of the vehicle was not unsafe until the vehicle ceased to be stationery. The argument was that it was only the motion of the 4WD that changed that position from being safe to being unsafe.
There is no doubt that Mr Lyle was obliged to give way to any traffic on his entering the carriageway, and indeed he pleaded guilty to a charge of failing to do so under reg 51(1) Road Traffic Code. The issue is whether there was any degree of negligence attributable to Ms Wreford in these circumstances. This requires an assessment under s 5B of the CLA. This is not a static assessment at a point in time, but an assessment of risk.
In the context of a 4WD which was, to Ms Wreford's knowledge, intent on turning right into Mill Point Road, there was, in my view, a foreseeable risk that the 4WD might move forward. If Ms Wreford placed herself in front of the 4WD, the risk was she would be struck by it and injured.
The risk could not be regarded as insignificant. Firstly, the risk that this might occur was, on Ms Wreford's evidence, precisely what she was assessing. In my view the risk was obvious, and would be so to any cyclist in that position. Secondly, any consequences would not be insignificant given the size and weight of a 4WD. The question then is what, in the circumstances, a reasonable person would have done to take precautions against that risk.
In terms of s 5B(2), there is no doubt that harm would result if care was not taken in this situation and that such harm was likely to be serious to Ms Wreford. The obvious precaution was to stay on the pavement and not move in front of the vehicle at all. This was not a difficult or burdensome thing to do. Ms Wreford gave a very detailed account of the time of which she said that she waited, what she did to attract Mr Lyle's attention and the precise movement of the vehicle and her bicycle. I do not accept the accuracy of that account. In any event the time that she waited is immaterial to the assessment of the risk and her conduct.
Ms Wreford does not accept that she took a calculated risk. She asserts that she was acting carefully, because the 'other vehicle', would prevent Mr Lyle's 4WD moving out. Even if there were other traffic, that would not, in my assessment, make her manoeuvre free of risk. However, I do not accept her evidence that there was such another vehicle as already explained. It was Ms Wreford's duty to take care for her own safety. In my view, the risk of riding a push bike in front of a 4WD which was waiting to enter the road, is obvious. On her own account, she knew that the driver had not seen her. In my assessment, there was a significant risk that the driver had not seen her. Unless she had actually caught his attention, and he had clearly indicated an awareness of her presence, it was tantamount to reckless to move in front of the vehicle when she believed he was intending to turn right.
I find therefore that Ms Wreford made a serious error of judgment in riding her bicycle in front of Mr Lyle's 4WD when there was an obvious risk to her own safety. Her actions contributed directly to the accident by putting herself into that position and that accident caused her great harm.
I do not accept that the 4WD drove over her head and then reversed back and then drove over her head a second time. Ms Wreford is convinced that this is so, but there is no adequate evidence to support that assertion. The broken helmet produced does not lead inevitably to that conclusion. It is just as likely that the helmet smashed on impact with the road and may thereby have caused her scalp laceration.
It is necessary to apportion responsibility for the harm caused to Ms Wreford according to s 4 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act. Those provisions give no instruction as to how such an exercise is to be conducted. A commonly cited passage in relation to the apportionment exercise is found in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492:
The making of an apportionment as between plaintiff and a defendant of their respective shares in the responsibility for damage involves a comparison both of culpability, ie the degree of departure from the standard of care of a reasonable man and the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Limited [1953] AC 663, 682.
The exercise of apportionment requires a judgment what is just and equitable regarding the relative shares of responsibility of both the person harmed and the other party.
Mr Lyle's failure to see and avoid a collision with Ms Wreford is a significant departure from the standard of care of a person in charge of a vehicle. Ms Wreford was plainly there to be seen. Even if Ms Wreford had not stopped but sought to ride around Mr Lyle, she would have had to cause her bicycle to cross the small grass strip to get off the pavement and onto the bike path and could not have achieved that at any speed on the bicycle she was riding, (photograph exhibit 19). She would have been in his vision to the left and then closer to the vehicle before she was in front of the vehicle. It is perhaps understandable, given that he was looking for traffic at a distance along the Mill Point Road, how he might not have seen her, because a bicycle in that position would be unusual. However, that does not absolve him of his responsibility, which he accepts.
For her part, Ms Wreford's conduct was a significant departure from the standard of care of a reasonable cyclist in those circumstances. Whether she stopped or just sought to ride around the vehicle, the situation is effectively the same. In terms of damage, the driving of Toyota Landcruiser is significantly greater than the riding of a push bike. The obligation to ensure that there were no other parties in the vicinity likely to come in contact with the 4WD before he moved out is a very significant obligation on Mr Lyle and his failure to do so created a significant danger. Ms Wreford made an error of judgment. In those circumstances I apportion blame to Mr Lyle at 70% and Ms Wreford at 30%.

Medical evidence

There was no dispute that the accident had caused Ms Wreford multiple serious injuries, some of which were life threatening. Documents tendered in evidence detail Ms Wreford's treatment in RPH, where she arrived as an emergency patient on 12 June 2013 at about 5.00 pm. On admission to the emergency department she was haemodynamically unstable and rapid intravenous resuscitation was commenced. Two drains were inserted into her chest. She was intubated and ventilated. The injuries were identified as:
1.Bilateral hemopneumothorax with the left pneumothorax being under tension.
2.Extensive lung contusions.
3.Fractured ribs on the left (numbers 3, 5 – 12) and on the right (3 – 10).
4.Fractured left clavicle.
5.Comminuted fracture of the left scapula.
6.Large scalp laceration.
The list of presenting problems include; an initial Glasgow Coma Score of 13 – 14, hypotensive (80/40), and receiving oxygen at 100%. She was managed in the intensive care unit where ventilation was continued until 14 June 2013. The large scalp laceration was sutured. The clavicle and scapula fractures were managed with a broad arm sling. She was transferred on 15 June 2013 to the High Dependency Unit where she remained for 10 days before being transferred to the State Major Trauma Unit. She was treated for a lower respiratory tract infection. She received intensive physiotherapy, together with input from occupational therapists, a clinical psychologist, and the acute pain management.
At the time of discharge, on 1 July 2013, Ms Wreford was noticed to have signs of cellulitis in the left pinna. Antibiotics were prescribed. She had had significant analgesia, including hydromorphone and ketamine infusion, as an inpatient, and she was referred to her general practitioner for ongoing pain management on discharge. The discharge letter records right visual blurring and a history of right eye haemorrhage. She was referred to the eye clinic. Decreased sensation to the dorsal surface of the right foot was noted secondary to a phlebotomy attempt.
She was reviewed at the orthopaedic outpatient clinic on 17 July 2013, when her range of movement on the left side was noted as decreased and the fracture was still significantly mobile. Her arm continued to be managed in a sling.
The day after discharge, she consulted her general practitioner, Dr O'Mahony. He noted that she was taking Tramal, Targin and Oxynorm for pain, together with Lyrica. Dr O'Mahony's notes show that this medication level reduced in a matter of days to only Oxynorm and Tramal. Within a week, the pain was noted to have been under better control. Ms Wreford continued to see Dr O'Mahony regularly. He was subsequently responsible for the management of her pain medications, organising specialist referrals and correspondence with specialists and the Insurance Commission of Western Australia, as necessary.

Dr D'Sousa

On 5 August 2013, Ms Wreford saw Dr Blasco D'Souza, an ophthalmic surgeon. On that day, her right eye had very limited vision, effectively only detecting hand movements, and the left eye was very poor. His view was that following the accident, Ms Wreford had suffered a new large right vitreous haemorrhage, left peripheral retinal haemorrhages and a left retinal tear. Dr D'Souza referred her immediately to Dr Dimitri Yellachich at the South Street Eye Clinic, for the left retinal tear and an ultrasound assessment of the right posterior segment. Dr Yellachich reviewed Ms Wreford on 19 August 2013, noting that her left anterior retinal tear required laser retinopexy. On 11 September 2013, Ms Wreford had surgery on her right eye for treatment of the vitreous haemorrhage, a process called vitrectomy. Dr Yellachich's opinion was that Ms Wreford had suffered right dense vitreous haemorrhage, secondary to Terson's syndrome. It was his view that the symptoms were directly caused by the accident of 12 June 2013. He noted that although Ms Wreford had a history of recurrent vitreous haemorrhages prior to the motor vehicle accident, as a consequence of a remnant hyaloid vessel, (a congenital abnormality) the nature of her condition following the accident was 'most definitely' a result of the motor vehicle accident.

Doing the best I can and taking a broad brush approach I will increase Ms Wreford's baseline earnings to approximately the rate used by counsel in his initial proposal for past loss of 16 hours per week plus 10 hours overtime, which was $651.30 net at 31 December 2015. No evidence has been provided to indicate how rates may have changed subsequently. $651.30 is $33,867 net per annum. I consider it reasonable to adopt an annual net earnings figure of $40,000, which is $769.23 per week, to reflect a modest increase in rates and/or hours.
A standard retirement age of 67 is reasonable for Ms Wreford, taking into consideration her pre‑existing anxiety and optical conditions. The multiplier for 16 years, on the 6% tables, is 543:
Hence $769.23 x 543 = 417,692
Counsel have agreed the equivalent gross weekly sum to be $884.60.
Superannuation applied to the gross figure, using 11% to account for proposed rate changes, is as follows:
$884.60 x 543 = $480,337.80
$480,337.80 x 11% x 0.85 = $44,912
These calculations reflect part‑time employment. Counsel applied a 30% discount for contingencies to a full‑time earnings scenario. I consider that 30% discount for contingencies is too high for part‑time earnings calculations, and that 25% is appropriate, comprising 5% for 'usual' contingencies and 20% for Ms Wreford's known pre‑existing conditions.
Earnings and superannuation = $417,692 + $44,912 = $462,604
Less 25% = $346,953
I add an additional sum for her overall loss of the opportunity, due to the accident, to study IT or web design, of $20,000.

Past medical, hospital and other expenses

It was agreed that the medical expenses to date had been met by the insurers. A claim was made for an indemnity for Medicare expenses, plus for $1,500 for miscellaneous out of pocket expenses otherwise unmet. Subsequent to trial, no further schedules of any paid or unpaid expenses have been supplied. I am not prepared to make an allowance of $1,500 absent any evidence. An indemnity for Medicare expenses is appropriate. I will hear counsel further if there are any unpaid expenses at the time of judgment.

Future medical expenses

The evidence shows that Ms Wreford will require visits to her general practitioner on a regular basis. Monthly is not inappropriate.
Calculated over her lifetime to 88, the multiplier is 791.8 (on 6% tables) at the rate of $18.75 per week, this amounts to $14,846.
Ms Wreford will need to be reviewed by her ophthalmologist every quarter, at $90 per consultation. $6.92 x 791.8 = $5,479.
A claim is made for optical medications at the rate of $25 per week plus $7.50 per week for the specialist consultations resulting in a claim for $26,104. I have calculated the specialist consultation above. I accept $25 for medications including eye drops. $25 x 791.8 = $19,795.
Psychological treatment is indicated. The claim was made for 12 months at $238 per week, followed by a further two years at monthly frequency. That in my view is reasonable.
The sum claimed was $18,000. This is appropriate, with credit to be given for any relevant payments made in the interim.
A claim was made for other medications associated with pain management and psychological conditions. There is no evidence of the cost or the requirements in relation to medications. Ms Wreford's objection would seem to reasonably exclude psychotropic drugs as a possibility. I allow a round figure of $10,000 for future medications associated with pain, and any other recommended medications such as Clonazepam.

Past gratuitous services

A claim was made for six months of assistance with household and day to day activities, provided by Ms Wreford's sister, family and friends. The sum claimed was $10,000. No calculations were advanced to support this. It is about 12 hours per week on average at $32 per hour over six months. The evidence does not support this.
Gratuitous services are limited under the provisions of the Motor Vehicle (Third Party Insurance) Act, s 3D. The minimum amount is $6,500, below which there can be no award. The evidence was that Ms Wreford's sister helped her initially, as did her sons, but that she said she was able to cook and look after her house in a relatively short time. She had ongoing assistance with shopping. It is clear that she returned to work on a part‑time trial basis, later in 2013.
There was little detailed evidence of the assistance Ms Wreford received in the initial period following her release from hospital, when she would have had her left arm in a sling and no doubt needed a considerable amount of assistance. No attempt was made by counsel for Ms Wreford to quantify the assistance actually received. If anything, Ms Wreford minimised the help she received (ts 124 ‑ 125).
I have made some basic calculations as an arbitrary check at the rate of two hours per day for the first six weeks, using $32 per hour, followed by an hour a day for the following 10 weeks at the same rate, that the total does not exceed $6,500. There is no reliable basis in evidence for a calculation. I am precluded by the provisions of s 3D(6) for making any award under this head.
I accept that Ms Wreford will require in the future paid assistance in relation to the heavier home duties, such as household and garden maintenance, cleaning gutters and other tasks that either by reason of her shoulder, or her general lack of physical conditioning, she will be unable to execute herself. She has claimed a global sum of $15,000 for such duties in the future. In my view, the amount claimed is not unreasonable.
Travel expenses were claimed at $5,000 for past and future. This was not based on any specific calculations. Counsel for Mr Lyle asserted that past travelling expenses have been paid. No evidence was provided in relation to the expenses. I accept that Ms Wreford will need to travel to attend her medical appointments. Over her lifetime the sum of $5,000 is modest for future travel. I award this sum.

Special Damages

It has recently been brought to my attention that an agreed figure of $94,242 has been paid by the Insurance Commission on behalf of Mr Lyle in special damages.
Further, since trial, Ms Wreford has paid an agreed additional $2,490 in out of pocket expenses.

Summary

General damages	$125,000
Past loss of earning capacity	$105,820
Interest	$15,215
Past superannuation	$9,257
Interest on superannuation	$1,527
Future loss of earning capacity and superannuation	$346,953
Loss of opportunity to retrain	$20,000
Special damages paid by Insurance Commission	$94,262
Out of pocket expenses paid by Ms Wreford	$2,490
Future medical expenses	$68,120
Travelling, past	Nil
Future travel	$5,000
Care and assistance – (past gratuitous services)	Nil
Future assistance	$15,000
Total	$808,644

Conclusion

There will be judgment for Ms Wreford, apportioned as to 70% to her which is $566,050 from which should be deducted sums already advanced. I will hear counsel as to the form of orders and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate to Judge Braddock
19 DECEMBER 2018