1. The primary decision dealt with the determination of the following issues:[5]
   1. Was the appellant negligent in moving her bicycle and herself around the front of the respondent's vehicle?
   2. If so, how was liability to be apportioned?
   3. Did the appellant suffer from either a significant psychological condition or ophthalmic condition prior to the accident?
   4. What were the effects of any pre-existing conditions?
   5. Has the appellant's refusal to take recommended medications contributed to her psychological condition, and if so, does this amount to a failure to mitigate her loss?
   6. What, if any, was the appellant's residual earning capacity?

The evidence about the accident itself came from [the appellant], [the respondent] 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 [the appellant's] injuries. There was little dispute about the orthopaedic and other physical injuries. The issues were the extent and aetiology of her residual condition.

[The appellant] 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.

1. In relation to the medical evidence, the judge said (amongst other things):[7]

There was no dispute that the accident had caused [the appellant] multiple serious injuries, some of which were life threatening. Documents tendered in evidence detail [the appellant's] treatment in RPH, where she arrived as an emergency patient on 12 June 2013 at about 5.00 pm ...

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 ... acute pain management.

At the time of discharge, on 1 July 2013, [the appellant] 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. [The appellant] 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.

1. In relation to financial evidence, the judge said:[8]

A large number of financial documents were tendered as part of [the appellant's] case, comprising:

1. PAYG payment documents from Burswood International Resort Casino.
2. [Payment] notices from Centrelink, tax returns and notices of assessment, for the years commencing the 30 June 2007 through to the time of her resignation.
3. A schedule of leave, and pay on a fortnightly basis.
4. Medical certificates submitted to her employer.
5. Contract of employment dated the 9 June 2006.
6. A request for a temporary working arrangement, dated the 5 February 2013.

This last document was a request for a sixth month period of reduced hours, due to illness.

A letter, dated the 16 September 2013, details the terms of her return to work after the accident and includes a health contract and support plan. The recommendations of Dr O'Mahony were that she returned to work for one shift per week, to be assessed with a trainer, and not to engage in additional shifts until Dr O'Mahony gave his approval. The evidence was that [the appellant] returned to work for eight hours per week which was two shifts per fortnight. On the 14 October 2015 her employment came to an end.

None of the financial records were controversial. [The appellant's] earnings were reduced to a schedule covering the years ending 30 June 2007 to 30 June 2014, showing both Centrelink payments and earnings from the Casino.

1. In relation to the judge's assessment of the appellant's credibility and reliability as a witness, the judge said:[9]

On balance, I did not consider that [the appellant] 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 [the appellant] 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 [the respondent's four wheel drive]. 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 [the appellant] 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 [the appellant] 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.

1. The judge answered the questions as follows:
   1. The appellant was contributorily negligent.[10]
   2. Liability should be apportioned to the respondent at 70% and the appellant at 30%.[11]
   3. The appellant had a pre-existing congenital abnormality of the vascular system in the right eye.[12] The appellant had pre-existing anxiety that she suffered 5 - 10 years prior to the accident.[13]
   4. The appellant's pre-existing conditions made her (1) vulnerable to greater injury in this accident to the eyes,[14] and (2) more vulnerable to post-traumatic stress disorder and could have made post-traumatic stress disorder more difficult to treat.[15]
   5. Given the appellant's past experience and involvement in psychotherapy, her refusal to take such medication was not unreasonable nor would such medication in her case produce significant improvement. There was no failure on her part to mitigate her loss as alleged.[16]
   6. In the absence of any evidence that there was suitable employment for the appellant given her age, personality style, and cognitive and psychological difficulties (which currently preclude her from engaging in consistent further education or training), the appellant had 'effectively no residual earning capacity'.[17] At the time of trial, she was unfit for any employment.[18]

1. The judge made detailed findings of fact about the appellant's employment history, her present and future earning capacity and her claims for past and future economic loss.[19] Her Honour also made detailed findings in respect of the appellant's claims for gratuitous services.[20]
2. Based on her findings, the judge summarised her assessment of the appellant's damages as follows:[21]

1. The appellant's apportionment (70%) was $566,050, from which sum was deducted amounts already advanced to the appellant.[22]

1. On 22 January 2019, the appellant filed an appeal notice.
2. On 23 January 2019, the registrar wrote to the appellant advising that the appellant's case was due on 26 February 2019.
3. On 14 February 2019, the appellant filed the Application, and a number of affidavits in support.
4. On 20 February 2019, the registrar issued a notice to attend on 22 March 2019 to consider the appellant's Application.
5. On 26 February 2019, the appellant sought to file an appellant's case, which, amongst other things, included an allegation that the damages award, or aspects of it, was 'manifestly unreasonable'.
6. On 28 February 2019, the registrar wrote to the appellant advising that because the appellant's case dated 26 February 2019 was not compliant with r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA), the appellant's case was not accepted for filing.
7. On 28 February 2019, the registrar ordered that the time for the appellant to file and serve the appellant's case be extended to 14 March 2019.

The application to adduce additional evidence

1. The categories of documents the subject of proposed order 1 of the Application are set out in the appellant's affidavit sworn in support of the Application to adduce additional evidence, filed 14 February 2019 (Appellant's affidavit). She described the documents as follows:
   1. 'all' of the Royal Perth Hospital file notes, which the appellant submits (1) are evidence of 'major internal injuries, massive internal bleeding and ... statistic[s] of [her] progress in [the intensive care and trauma unit]', and (2) her counsel failed to tender all those notes as evidence which would have explained 'all of [her] injuries'.[23]
   2. Five photographs taken 'over the trial weekend' of her son, Ryan Wreford, 're-enacting the accident more to scale'.[24]
   3. Seven photographs of parts of the footage of an interview she gave to Channel 9 on 16 October 2013. Six photographs are of the appellant's crushed helmet showing tyre marks, which the appellant submits 'shows [her] helmet as being in the same condition it was tendered at trial'.[25]
   4. An Excel spreadsheet titled 'Out of Expenses and Future Expenses' (sic) during the period 'June 2013 - December 2018 plus up to Feb 2019'.[26] This appears to be a summary of claimed expenses not vouched for. It includes items such as 'Australia Post', 'South Perth Library - photocopies', 'loans' and legal costs of the trial.
   5. A 'medication quote', and other quotes for potential medical consultations and work.[27]
   6. A patient information document from the Iron Infusion Clinic and certain blood tests and pathology records, plus a referral for a MRI and CT scan.[28]
   7. Payslips from Burswood Casino and reported income statements to Centrelink between 2007 and 2010 (pay records), and an updated curriculum vitae.[29]
   8. A photograph of a parking meter outside Royal Perth Hospital.[30]
   9. A clothing alteration shop quote.[31]
   10. Videos of a Channel 9 interview and 'Traffic Flow and Light Sequence'.[32]
2. The appellant also sought to adduce as additional evidence in the appeal, two affidavits, one sworn by her son, Benjamin Wreford on 13 February 2019, and one by a friend and neighbour, Ms Margaret Abud sworn 13 February 2019.
3. Benjamin Wreford's affidavit referred, in general terms, to the accident, the fact that he was in year 10 at the time, visits to the hospital, the assistance to the family given by his aunt, the fact that his brother drove his mother around for a time, the fact that his mother loaned him $10,000 for a car, the fact that he has driven his mother around 'whenever possible' since the accident, and information as to the pursuit of his career as a commercial pilot.
4. Ms Abud's affidavit refers to Ms Abud's friendship with the appellant going back to 2005, her husband's assistance to the appellant's family over the years since 2005, her understanding of the appellant's shift work, her dealings with the appellant's family and Benjamin Wreford's aunt after the accident, the fact that she had altered many of the appellant's garments over the past five and a half years, and her opinion that the appellant's injuries 'have changed her bubbly outgoing personality'.

1. As we have noted at [22], it appears that in the appeal, the appellant seeks to challenge the assessment of damages made by the learned trial judge. The appeal is not a hearing de novo, where the matter is heard afresh, on the basis of the evidence adduced at the hearing of the appeal. Instead, the appeal to this court is by way of a rehearing, based on the evidence before the t[33]al court.33 The court will intervene only if satisfied that there was error on the part of the primary judge, having regard to the evidence adduced in[34]he trial,34 together with any fresh evidence that, exceptionally, this co[35]t admits.35
2. In Saunders v Public Trustee,[36] the court said in relation to the principles relevant to the grant of leave to admit additional evidence in an appeal against a final decision made after trial:
   1. In deciding whether to allow an applicant to adduce additional evidence against a final decision made after trial, the strong public interest in the finality of litigation is a powerful reason for strictly confining the circumstances in which a party will be allowed on appeal to augment the evidence led below.[37]
   2. Another important consideration is whether the additional evidence is properly characterised as fresh evidence, which either did not exist at the time of the trial or could not have been discovered with reasonable diligence at that time. Generally, the discretion will be exercised against evidence which is not fresh evidence.[38]
   3. It is relevant to consider the strength of the evidence, whether it is contested and whether there is a significant possibility that the evidence would lead to a different result if admitted. If evidence is contested and would require a new trial to resolve factual issues if the evidence were admitted, then that will be a factor counting against its admission in the appeal.[39]
3. Also, where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily against its reception on appeal in the exercise of the court's discretion.[40]

1. The documents in category 1 are not fresh evidence. Also, the appellant did not establish which (if any) hospital notes were allegedly omitted from the tender at trial. Nor did she establish a significant possibility that, if any additional hospital notes were admitted on the appeal, it would lead to a different result.
2. The documents in categories 2, 3 and 10 are effectively out-of-court statements. They are not relevant or otherwise admissible. Even if admissible, it was not shown that there is a significant possibility of a different result if these documents were admitted on the appeal. Also, the documents in category 2 are not fresh evidence.
3. As to category 4, the spreadsheet itself is inadmissible. Also, insofar as it covers the period up to the time of trial, it is not fresh evidence. Further, the appellant did not establish that there is a significant possibility that the spreadsheet, if admitted, would lead to a different result.
4. As for 5, 6, 7, 8 and 9, the appellant did not establish the relevance of the documents in these categories. Nor did she establish that there is a significant possibility that any of the documents in those categories, if admitted, would lead to a different result. The pay records in category 7 are not fresh evidence. Nor is the document in category 8 admissible or fresh evidence.
5. The affidavits by Mr Wreford and Ms Abud, even if admissible, lacked cogency in their absence of detail. In any event, much of the evidence is not fresh evidence. Nor was it shown that there is a significant possibility that any of the evidence, if admitted, would lead to a different result.
6. In all the circumstances, the appellant did not establish that it would be in the interests of justice to allow any of the documents to be adduced in evidence at the hearing of the appeal.
7. For these reasons we dismissed the Application insofar as it sought orders to adduce additional evidence.
8. At the hearing on 22 March 2019, the appellant, in effect, sought to extend the time to file her appellant's case to 10 May 2019. We allowed that application. As noted earlier, the third proposed order sought in the Application was abandoned.

1. For these reasons, we made the orders referred to in [3] above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Wreford v Lyle [2018] WADC 173.

[2] Primary decision [10], [96], [112].

[17] Primary decision [228] - [229].

[19] Primary decision [206] - [229], [233] - [251].

[20] Primary decision [260] - [265].

[23] Appellant's affidavit, pars 3, 13.

[24] Appellant's affidavit, par 17, annexure JW 5.

[25] Appellant's affidavit, pars 18 - 20, annexure JW 6.

[26] Appellant's affidavit, par 23, annexure JW 7.

[27] Appellant's affidavit, pars 24 - 27, annexure JW 8 - 11.

[28] Appellant's affidavit, pars 28 - 34, annexure JW 12 - 16.

[29] Appellant's affidavit, pars 35 - 36, annexure JW 17, 18.

[30] Appellant's affidavit, par 36(ii), annexure JW 19.

[31] Appellant's affidavit, par 36(vii), annexure JW 20.

[32] Appellant's affidavit, par 37, exhibit JWB 1.

[33] Supreme Court (Court of Appeal) Rules 2005 (WA), r 25; Rankilor v City of South Perth [2016] WASCA 29 [24].

[34] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2003] HCA 47; (2000) 203 CLR 194, 203.

[35] Lackovic v Insurance Commission (WA) [2006] WASCA 38; (2006) 31 WAR 460 [65], [67] (Buss JA); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [22].

[36] Saunders v Public Trustee [2015] WASCA 203; (2015) 13 ASTLR 226.

[40] CDJ v VAJ (No 1) [1998] HCA 67; (1998) 197 CLR 172 [116].