Citation : WINIARCZYK -v- TSIRIGOTIS [2009] WADC 188

Negligence - Highway - Collision of taxi with pedestrian moving into its pathway - Negligence of driver and duty of care to passenger

Evidence Act 1906 (WA), s 79C

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C

Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301

Houlahan v Pitchen [2009] WASCA 104

Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228

Skripal v The State of Western Australia (unreported, WASCA, Library No 950244, 19 May 1995)

Wheare v Clarke [1937] HCA 7; (1937) 56 CLR 715

Winiarczyk v Tsirigotis [2009] WADC 188

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

1 At about 1.20 am on 28 November 2004, Anna Winiarczyk was a passenger in a taxi being driven by Nikolaos Tsirigotis. Mr Tsirigotis had picked Ms Winiarczyk up from Northbridge and was taking her home. The journey took them along Whitfords Avenue in Padbury. Near the intersection of that road with Eddystone Avenue, the taxi collided with Shane Frances. At the point of this collision, the taxi rapidly decelerated. Ms Winiarczyk claimed that as a result of that deceleration, she suffered a whiplash type injury to her neck. Mr Frances was badly injured.

2 Ms Winiarczyk sued Mr Tsirigotis for damages, claiming that Mr Tsirigotis had been negligent in the way he had driven his taxi. Mr Tsirigotis denied that he was negligent. In due course, Mr Tsirigotis commenced third party proceedings against Mr Frances, alleging that any injury and loss suffered by Ms Winiarczyk was caused by Mr Frances' 'deliberate or negligent actions'.

3 Ms Winiarczyk's action against Mr Tsirigotis and the third party proceedings were tried before Wisbey DCJ between 20 and 22 October 2009. On 9 December 2009, Wisbey DCJ dismissed Ms Winiarczyk's claim. No order was made in the third party proceedings. His Honour provisionally assessed damages in the sum of $16,203.92, comprising general damages of $15,000 and special damages of $1,203.92: Winiarczyk v Tsirigotis [2009] WADC 188.

4 Ms Winiarczyk now appeals against his Honour's judgment in favour of Mr Tsirigotis and against his Honour's provisional assessment of damages.

5 Mr Frances has also appealed: CACV 157 of 2009. The notice of appeal states that Mr Frances is appealing against his Honour's order that Ms Winiarczyk's claim against Mr Tsirigotis be dismissed. The parties were content for this appeal to be heard and determined. The court, however, raised the issue of the third party's standing to appeal. Mr Frances' appeal will be dealt with in separate reasons.

6 Mr Tsirigotis has filed a notice of contention in each appeal, raising an issue of causation.

7 For the sake of convenience, in these reasons we will refer to Ms Winiarczyk as the appellant, Mr Tsirigotis as the respondent and Mr Frances as the third party.

8 The appellant's grounds of appeal are as follows:

1. The learned Trial Judge was wrong in law in finding there was no negligence on the part of the Respondent in circumstances where the behaviour on the roadway of the Third Party pedestrian Shane Frances was so reckless and bizarre as to require the Respondent to observe special precautions in respect of him including at least to adequately slow and swerve so as to avoid the obvious risk of a collision with him.
2. The learned Trial Judge was wrong in law in failing to give any or any adequate reasons as to how the Respondent's evidence of the accident circumstances was corroborated by the following factors:-

(a) that the taxi was so slow to stop;

(b) the fact that there is no evidence of any skid marks; and

(c) the location of the pedestrian's shoes in respect of the final resting position of the taxi.

1. The learned Trial Judge was wrong in law in finding that the Appellant was not a reliable witness based as it substantially was on differences between the Appellant's evidence and symptoms pleaded in the Statement of Claim in circumstances where:-

(a) the Appellant gave evidence she had not read the Statement of Claim; and

(b) the Appellant did not assert that any such symptomology arose from the accident.

1. The learned Trial Judge was wrong in fact and in law in failing to award the Appellant damages in respect of her psychological condition in circumstances where:-

(a) there was express unchallenged evidence from the Consultant Psychiatrist, Dr De Felice of psychological sequelae from the accident; and

(b) the Trial Judge has misconstrued the Statement of Claim in respect thereof by asserting there was no claim for same in the Statement of Claim [64].

1. The learned Trial Judge has failed to give any or adequate reasons in respect of his assessment of $15,000.00 general damages in circumstances where he has assessed the damages at 5% of a most extreme case and where there is no relationship at all between that assessment and the damages awarded.
2. The learned Trial Judge was wrong in law and in fact in his assessment of damages of $15,000.00 in that such sum is wholly inadequate and disproportionate to the injuries suffered by the Appellant.
3. The learned Trial Judge was wrong in law in failing to give any award at all for economic loss and has failed in any event to give any or any adequate reasons in that regard.

9 The essence of grounds 1 and 2 is that his Honour erred in finding that the respondent was not negligent. Grounds 3 to 7 allege express and implied errors on the part of his Honour in his provisional assessment of damages. The appellant contends that she is entitled to an award of damages considerably greater than that provisionally assessed by his Honour.

10 The appellant alleged that the respondent was negligent in his manner of driving in that he:

(b) failed to drive with any or any proper control;

(c) drove at a speed which was excessive in all the circumstances;

(d) failed to brake in time to avoid the collision at all; and

(e) failed to steer or control his vehicle so as to avoid the collision: blue AB 22.

11 The appellant pleaded that she sustained soft tissue injuries to her spine and chest pain which produced:

(a) pain, stiffness and tenderness of the neck and lower back;

(b) limitation of movements of the neck and lower back;

(g) headaches and discomfort together with sleep disturbance: blue AB 22.

12 The appellant sought damages for past and future economic loss: blue AB 24 - 25.

13 The respondent denied that he was negligent. He alleged that the accident was caused by the actions of the third party: blue AB 29. In relation to the injuries allegedly suffered by the appellant, the respondent denied that the pins and needles in the appellant's hands were caused by the accident. The respondent otherwise did not admit that the injuries suffered by the appellant produced the effects pleaded by her. The respondent did not admit that the appellant had suffered the various losses she alleged.

14 Whitfords Avenue is a dual carriageway with an east-west orientation. The western carriageway rises slightly in the locality of the accident. The west and east carriageways are separated by a wide, grassed median strip centrally planted with trees. Each laneway is 3.5 metres wide. Next to the western carriageway is a bicycle lane. Its exact width is unknown, but photographs tendered at the trial show that it is narrow in comparison to the carriageway: exhibit 16. The area in question was, at the relevant time, well lit with no impediment to vision. The road and the weather conditions were fine.

Evidence as to the circumstances of the accident and his Honour's findings in relation to it

15 The only witness able to give a detailed account of the circumstances of the accident was the respondent.

16 The appellant saw little of the accident as she was dozing at the time. The third party did not give evidence at trial. It is not disputed that as a result of the injuries he received, he has no recollection of what happened.

17 William Halhed was driving a vehicle in a westerly direction in the inside lane of Whitfords Avenue, perhaps four car lengths behind the respondent. His Honour doubted the reliability of Mr Halhed's observations: Winiarczyk v Tsirigotis [51], but accepted that he saw something run across the road from his right-hand side, like a white flash, immediately before the accident. It is not disputed that the 'something' observed by Mr Halhed was the third party.

18 Expert evidence from a motor vehicle accident consultant, Robert Davey, was adduced by the third party. The purpose of this evidence was to ascertain the ability of the respondent to stop or slow his vehicle prior to colliding with the third party: par 2 of exhibit 17. His Honour did not accept Mr Davey's evidence. This conclusion was not challenged in this appeal.

19 Shortly after the accident, a number of police officers attended the scene. One of those officers was Sergeant Wayne Godwin. He caused the scene to be marked and various photographs to be taken. He spoke to the respondent who appeared to him to be in a state of shock. As a result, he did not take a detailed statement from the respondent, but obtained from him what has been described as a 'bare bones story' of what occurred. Sergeant Godwin incorporated those details into his accident report form: exhibit 11. The details recorded by Sergeant Godwin are as follows:

V1 travelling west on Whitfords Avenue, Padbury, approx speed 65 kph, seatbelts worn, lights illuminated on vehicle. Street lights on. Lane 1 (close to kerb).

Pedestrian has run from Craigie side of Whitfords Avenue into the path of the taxi ie V1. Vehicle 1 has struck pedestrian trapping him under the taxi sustaining serious head and internal injuries. Conveyed to JHC [Joondalup Health Campus] by SJA [St John Ambulance].

20 Another police officer took a more detailed written statement from the respondent on 11 January 2005: exhibit 15. His Honour found that the contents of this statement were essentially consistent with his testimony at trial: Winiarczyk v Tsirigotis [52]. On 18 August 2009, the respondent swore answers to interrogatories. These answers were tendered by the appellant at trial: exhibit 1.

21 His Honour summarised the respondent's evidence as follows:

The [respondent] is a business proprietor and taxi driver, having been engaged as the latter for about 16 years. He stated that as he was proceeding in a westerly direction in the kerbside lane on Whitfords Avenue he observed a young male (the third party) come from behind a tree on the median strip, apparently intent on crossing the road. The third party was approximately 50 metres forward of the taxi when first observed, and ran from the median strip in a south-easterly direction towards the taxi with his fists raised, his mouth open, and teeth clenched. The [respondent] stated that he slowed down to about 60 kph, and the third party stopped while still in the inner lane, and while continuously looking towards the taxi, turned to his left and began walking back towards the median strip. He suddenly turned, moved and dived towards the taxi, and his head collided with the front right corner of the taxi above the headlight. The [respondent] stated that he thought the third party might be a kid with a rock in his hand, and he consequently slowed down, swerved to the left and proceeded in the left-hand side of the kerbside lane, intending to pass him. His estimate was that the third party was 20 to 30 metres from the taxi when he stepped onto the roadway, and as he moved towards the taxi his posture was hunched. The taxi was about 2 metres from the third party who was standing in the inner lane immediately prior to turning, moving and diving into it.

The [respondent] stated:

'He was well and truly in the right lane. The left lane was clear. I slowed down, swerved, kept to the left and, like I said, which I've shown you there with the drawing, he turned around and then at the last moment when I was passing, about 2 metres, just dived across.'

It is apparent that the [respondent's] evidence suggests that the third party was at all times looking towards and constantly aware of the position of the approaching taxi.

The [respondent] felt that the third party was in a position close to the median strip before he turned and dived into the path of the taxi. He stated that he had slowed down to possibly 60 - 65 kilometres an hour before that occurred. The defendant stated that when the taxi first moved to the left of the kerbside lane the third party turned and was moving away from its path. The [respondent] swerved to the left again as the third party dived towards the taxi. He stated that after impact he braked and brought the vehicle to a gradual stop. The third party was wedged under the taxi such that his upper torso, arms and chest were in front of the vehicle, and his lower body and legs under it, with his left leg on the outer side and right leg on the inner side of the front right-hand wheel.

In cross-examination the [respondent] stated that when he observed the third party on the median strip he assumed that he was going to cross the road, and consequently released the accelerator and watched him. The third party started running towards the taxi with his fists up, and at that stage the taxi's speed had decreased 5 or 10 kilometres an hour. The [respondent] braked and swerved to the left, and the third party turned away from the taxi. He was adamant that he started to slow down when the third party came onto the carriageway, but continued on when the third party turned around and walked away from the path of the taxi. Initially he thought there was a risk that the third party would run into the path of the taxi, but not when the third party changed direction and retreated towards the median strip. He indicated that had the third party not changed direction, he would have stopped the taxi. Having moved away from the path of the taxi the third party at 'the last split second, spun around, turned around, took a step or two and dived'.

The [respondent's] attention was drawn to his police statement made 11 January 2005 (Exhibit 15) in which the following appears:

'He was facing me, still hunched over, and running towards me with both fists clenched and up in front of him. As I slowed and veered to the left, he has stopped, turned, and started to walk back towards the median strip. I could see him continually look over his shoulder at me. When I was about 5 metres from him he has turned back towards me, taken a few steps and then dived in front of my taxi. The front right corner of my taxi has hit the left side of the person and he has hit his left side of his head on the car. I have slammed on my brakes and come to a stop near the end of the bus shelter.'

Notwithstanding the contrary representation in the statement, the [respondent] denied that he slammed on the brakes, stating that he simply applied the brakes; but then amplified that by stating 'I slammed the brakes, but I didn't put my foot through the floor'. He stated that the application of the brakes and swerving occurred at the same time as the impact. He agreed that he did not reduce the speed of his vehicle below 60 kilometres per hour, indicating that after he braked and reduced speed initially he was 'coasting'. The fact that there was no evidence of skid marks, and that a shoe was located 22 metres to the rear of the taxi's final resting position, supports the [respondent's] account [30] - [36].

22 During his evidence, the respondent was shown a series of photographs of the scene: exhibit 16. On one of those photographs, the respondent marked the path which he said the third party took from the median strip and while on the roadway: exhibit 16, photograph 6. The markings show the initial diagonal path taken by the third party, the retreat and the point from which he launched himself towards the respondent's vehicle.

23 His Honour found that the respondent's evidence of distances, speed and time were no more than estimates based on reconstruction and were no proper basis for any mathematical or scientific analysis or reconstruction: Winiarczyk v Tsirigotis [46].

24 His Honour's findings as to the circumstances of the accident were expressed as follows:

I accept that the third party moved rapidly from a stationary position on the median strip, onto the western carriageway and diagonally in a south-easterly direction towards the taxi, in a threatening manner. Before reaching the kerb-side lane, and whilst keeping the taxi under observation, he retreated towards the median strip before again turning, taking a few steps, and propelling himself into its path. I accept that when the third party stepped onto the carriageway, the [respondent] who was then travelling at approximately 70 kilometres per hour, applied the brake slightly, reducing the speed of the taxi to something of the order of 60 kilometres per hour, and veered left whilst watching him. Upon observing the third party stop and begin to retreat, the [respondent] 'coasted' on, but simultaneously with the third party propelling himself towards the taxi, applied the brakes and swerved to the left. The [appellant's] statement that the taxi was slow to stop; the fact that there is no evidence of any skid marks; and the location of the shoes in respect to the final resting position of the taxi; are consistent with the [respondent's] description of the accident [53].

25 His Honour concluded that the respondent had not driven negligently. He said:

I am not satisfied on the evidence before me that the [respondent's] manner of driving from the time he observed the third party until impact, was other than appropriate - that it has been shown that he did not act with reasonable care. This was not a case of a driver not paying proper attention to a child or an inattentive pedestrian. It would have been clear to the [respondent] at all times that the third party was aware of the proximity and approach of the taxi, and the [respondent] could not reasonably have anticipated his bizarre behaviour. The calamity was entirely the responsibility of the third party [54].

26 The issue raised by this ground is whether, in all of the circumstances, the respondent exercised the degree of care towards the appellant which those circumstances required: Wheare v Clarke [1937] HCA 7; (1937) 56 CLR 715, 723; Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 [13]; and Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228 [12]. On the facts of this case, the answer to this question involves a consideration of the respondent's reaction to the third party's conduct.

27 His Honour's essential conclusion was that there was no breach of duty on the respondent's part because the danger posed by the third party was not foreseeable [54].

28 The legal principles applicable to whether there has been a breach of the duty of care are well-known and need not be repeated: see Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 - 48. Of course, whether there has been a breach of the duty of care depends upon the facts of each particular case.

29 It must always be borne in mind that the plaintiff bears the onus of proof. His Honour said that the determination of the precise circumstances of the accident was, on the evidence before him, 'a particularly difficult task': Winiarczyk v Tsirigotis [49]. He had, in effect, only one version of the events and that came from the respondent. His Honour observed, in evaluating the respondent's testimony, that his evidence of distances, speed and time were unreliable: Winiarczyk v Tsirigotis [46]. There was no reliable evidence before his Honour about how far the respondent was from the third party when he first saw him on the median strip or the distance that the third party ran from the median strip onto the road. Further, there was no precise evidence of where the third party was in the right-hand westbound lane when he dived in front of the respondent's taxi or how far he dived in order to collide with the vehicle. The amount of time that the respondent had to react to the situation that confronted him was not canvassed in the evidence, although it cannot be doubted that the time available to the respondent was very short and that decisions had to be made rapidly.

30 The only expert evidence, from Mr Davey, a motor vehicle accident consultant called by the third party, was rejected by his Honour.

31 It is not known why the third party acted in the way that he did. Although he was taken to hospital, there was no evidence at trial of any test done there to ascertain his level of intoxication, if any, or any other cause for his behaviour. There was some evidence before his Honour in the form of a witness statement, which he admitted pursuant to s 79C of the Evidence Act 1906 (WA), from a witness, whose identity was suppressed at trial. In that statement, the witness indicated that she saw a young male, whom his Honour accepted was the third party, behave in a way which was plainly reckless to his safety, a short time prior to the collision. That behaviour was not observed by the respondent. It was not known to him prior to the collision.

32 There is no issue that the respondent was driving in a reasonable and careful manner prior to the collision. He was travelling at the speed limit, in the early hours of the morning, when traffic was light and pedestrians were unlikely to be about in numbers. His concentration was on the road and its surrounds. There was no evidence that he was distracted by anything. He saw the third party on the median strip and from then on kept him in view. There is nothing that could reasonably sustain the allegation that the respondent was not keeping a proper lookout.

33 The third party's movement onto the roadway required some response from the respondent. At that point, the respondent took the view that the third party was intent on crossing the road. The respondent reacted by, as his Honour found, applying the brake slightly, reducing his speed to approximately 60 km per hour, veering to the left and keeping the third party in view. While this was occurring or at about this time, the third party ran onto the right-hand lane of the westbound carriageway with his fists up, his mouth open and his teeth clenched in what his Honour found was a threatening manner. The respondent's testimony was that he thought that at this point there was a risk that the third party would run into the path of the taxi. However, the third party stopped and changed direction, retreating towards the median strip. When the third party executed this manoeuvre, the respondent was no longer of the view that the third party would run into the path of his vehicle. The respondent said that had the third party not changed direction, he would have stopped the taxi. Instead, the respondent, as his Honour found, 'coasted' on, that is, he continued travelling at approximately 60 km per hour. By then, the respondent had driven his vehicle so that it was, he said, partly in the bicycle lane. It was while the respondent's vehicle was travelling at that speed, partly in the bicycle lane, that the third party, instead of continuing on in the direction in which he was going, towards the median strip and away from the respondent's vehicle and at all times apparently keeping the respondent's taxi in view, suddenly turned and propelled himself towards the taxi, colliding with it. At this point, the respondent applied his brakes and decelerated the vehicle causing the appellant's whiplash injury.

34 There was no evidence before his Honour that the third party had given any sign that he would, in complete disregard for his safety, propel himself towards the taxi.

35 The primary submission made by Mr Clyne, on behalf of the appellant, was that when the third party stepped onto the carriageway and ran towards the respondent's taxi in an aggressive way, the respondent should have realised that the third party was behaving bizarrely. His submission was that the reasonable driver in the respondent's position would have taken special precautions to negate the risk that the third party would somehow collide with the respondent's vehicle.

36 As we have said, the third party's behaviour on the roadway required a response. The nature of that response depended upon the reasonable driver's perception of what the third party might do, bearing in mind, of course, that the reasonable driver must take into account that the third party was not behaving as a normal pedestrian might.

37 By veering to the left, the respondent put further distance between his vehicle and the third party. He also reduced his speed and continued to keep the third party under watch. At or very close to this time, the third party who, on the evidence, was looking at the respondent's vehicle, apparently reacted to the respondent's manoeuvre by retreating towards the median strip. In our opinion, a reasonable driver, even in the context of dealing with an irrational pedestrian, would have reasonably concluded that the danger had been averted and that the third party had thought better of his foolishness. There was no need for a reasonable driver, at this point, to take further evasive action.

38 The third party's actions in turning and propelling himself into the respondent's vehicle was held by his Honour to be behaviour which the respondent could not reasonably have anticipated: Winiarczyk v Tsirigotis [54]. There is no challenge to this finding. This finding constitutes a considerable obstacle to the appellant's case.

39 Mr Clyne attempted to deal with this by submitting that the respondent should have slowed down more and veered further to the left and had he done so, neither the appellant nor the third party would have been injured.

40 Mr Clyne's submission ought not be accepted for two reasons. First, the measures the respondent took when the third party stepped onto the roadway were effective in avoiding the risk, that was then posed, that the third party would run into the path of the respondent's taxi. In other words, the risk that was then reasonably foreseeable was dealt with. Second, the submission is made with the wisdom of hindsight. No-one could reasonably foresee that the third party, having retreated from a potential collision, would have propelled himself in an apparently deliberate act at the respondent's taxi. That action was extremely bizarre, but from the perspective of a reasonable driver at the time, the third party's behaviour would not have indicated to the reasonable driver that he would act with such a complete disregard for his own safety. In fact, he had, when he retreated, acted in a manner which was consistent with someone who was actively avoiding injury. As his Honour found, the situation was unlike those cases involving an alleged breach of a driver's duty of care to a child on or near the road or to an inattentive or intoxicated pedestrian.

41 Having regard to all of the circumstances, it was open to his Honour to find that the third party's behaviour was not reasonably foreseeable. The respondent was faced with an unexpected emergency of a man propelling himself at a moving vehicle with the great likelihood of serious injury or death. The situation was not of his making. The only reasonable course of action was to brake suddenly and decelerate quickly even though there was a risk that action might lead to injury to the appellant. It is not the case that what a person does in an emergency caused by someone else can never amount to negligence: Skripal v The State of Western Australia (unreported, WASCA, Library No 950244, 19 May 1995). However, in the situation he faced, the respondent reacted reasonably. In all the circumstances of the case, it has not been shown that the judge erred in finding that the respondent exercised reasonable care and did not breach his duty to the appellant.

43 As framed, ground 2 is an allegation that one part of his Honour's reasons were insufficient or inadequate. The part of his Honour's reasons which is attacked in this ground of appeal is the last sentence of [53], which is as follows:

The [appellant's] statement that the taxi was slow to stop; the fact that there is no evidence of any skid marks; and the location of the shoes in respect to the final resting position of the taxi; are consistent with the [respondent's] description of the accident.

44 The appellant submitted that the effect of this sentence is that his Honour found that the respondent's evidence was correct because it was corroborated by the three matters he mentioned. Mr Clyne submitted that none of the matters referred to by his Honour were in truth corroborative. Mr Clyne submitted that, accordingly, there was no basis for his Honour to accept the respondent's evidence and that his findings of fact based on them were 'unsafe'.

45 In reality, the complaint in ground 2 is not one of inadequate reasons, rather it is a complaint of erroneous reasoning.

46 The appellant's submissions in support of the ground are based on the premise that his Honour accepted the evidence of the respondent because it was corroborated in the three respects which have already been referred to. This premise is incorrect. His Honour did not say in [53], or anywhere else in his reasons, that his acceptance of the respondent's evidence as to the circumstances of the accident relied upon the evidence being corroborated by any fact. All that his Honour said was that the matters he referred to were consistent with the respondent's description of the accident.

47 A consideration of the reasons as a whole reveals that there was only one version of events before the court and that came from the respondent. There was no alternative version of events. While the respondent's account was in some respects criticised by the appellant's counsel in cross-examination and during his closing address, there was nothing in the end which contradicted the respondent's account and his Honour was entitled to accept it. Indeed, the appellant relied upon the respondent's account of events to establish her case.

48 The respondent's counsel accepted that evidence of the location of the third party's shoes in respect of the final resting position of the taxi did not support the respondent's description of the accident. It is difficult to understand how that fact had any bearing on the credibility of the respondent's description of the accident, but it is not a matter of any importance to this case. The other two matters were consistent with the respondent's description of the accident. The appellant, in her evidence, said that after the third party was hit, 'it was long time since he [the respondent] completely stopped [the taxi]': ts 12. The respondent said that after the collision he applied the brakes, but because he knew that the third party was still underneath his vehicle, he progressed slowly to a stop: ts 112.

49 There was no evidence before his Honour of any skid marks on the road. None of the photographs taken on the night in question show any skid marks and Sergeant Godwin, the officer who attended the scene, did not refer to the presence of skid marks in his testimony at trial. The respondent's evidence was to the effect that prior to the collision with the third party, he applied the brakes lightly and that when he collided with him, although he braked, he did not 'put [his] foot through the floor'. The absence of skid marks, although capable of being explained in other ways, was broadly consistent with the respondent's description of the accident.

50 The allegation that his Honour's reasons were inadequate or insufficient is unsustainable.

52 As neither ground 1 or 2 has been made out, it is strictly speaking unnecessary to deal with those grounds of appeal that bear upon his Honour's provisional assessment of damages. However, each of the grounds was fully argued and for completeness we will deal with them as briefly as possible.

53 This ground attacks his Honour's finding that the appellant was not a reliable witness with respect to the evidence she gave relevant to damages.

54 His Honour's reasons for coming to this conclusion were as follows:

In this type of case, the medical assessments are largely dependent upon the reliability of the patient's history, and the accuracy of the complaints of symptoms and disability. I have already indicated that the [appellant's] presentation during her evidence was inconsistent with her alleged level of symptoms. It is also to be observed that there are some inconsistencies in her various accounts of the nature, duration and consequences of symptoms. Professor Mastaglia received an account of hand symptoms commencing a few weeks after the accident, and Dr Harper that paresthesia in the hands did not develop until approximately the beginning of 2006. The [appellant] told Dr Harper that she ceased working in early 2006 when her hand symptoms developed. I am mindful of the fact that it is not suggested that the carpel [sic] tunnel syndrome is a consequence of the accident, but it is an indication of the reliability of the [appellant] as a historian. Dr Rosenthal considered that there was voluntary restriction of cervical movement.

The injuries pleaded in the statement of claim are 'soft tissue injuries to the spine and chest pain'. It is alleged those injuries gave rise to pain, tenderness and limitation of movements of the neck and lower back, tender trapezius muscles, stress and anxiety, problems with memory and concentration, paresthesia in the hands, and headaches. The [appellant] in evidence made no reference to lower back problems, or difficulty with memory and concentration, and accepts that the hand problems are not accident related.

In the result I do not accept the [appellant] as a reliable witness [56] - [58].

55 Mr Clyne, in oral submissions, accepted that his Honour was entitled to make the findings he made at [56]: appeal ts 44.

56 Mr Clyne submitted that his Honour should not have taken into account any difference between the injuries pleaded in the statement of claim and the evidence that the appellant gave about some of those conditions, because the appellant had not read the statement of claim prior to it being filed and had never adopted that document. Mr Clyne submitted that the appellant had never made a complaint about back pain and that the solicitor who prepared the statement of claim may have made an error.

57 This submission must be rejected. His Honour was entitled to infer that the statement of claim reflected the appellant's instructions, albeit that it was not prepared by her or read by her prior to the trial. There was no evidence that errors had been made in the preparation of the statement of claim. His Honour was entitled to take into account any differences between the statement of claim and the appellant's evidence. The weight his Honour gave to those discrepancies was a matter for him to decide as the trier of fact.

59 His Honour did not accept that the appellant had sustained any post-traumatic stress injury and said that, in any event, it was not pleaded as a consequence of the accident: Winiarczyk v Tsirigotis [64]. Mr Clyne submitted that the symptoms of post-traumatic stress injury were pleaded in the statement of claim as 'stress and anxiety', 'problems with memory and concentration' and 'sleep disturbance'. He further submitted that the evidence of Dr De Felice, a consultant psychiatrist, that the appellant suffered a post-traumatic stress injury was not challenged and should have been accepted by his Honour.

60 Ms Mangan submitted that the appellant did not give evidence of the symptoms said to support the diagnosis of post-traumatic stress disorder and that there was no or insufficient primary evidence of symptoms to found the diagnosis. Although the amended statement of claim expressly pleads 'stress and anxiety', 'problems with memory and concentration' and 'sleep disturbance', it does not plead that the appellant suffered post-traumatic stress disorder. This is surprising, as the amended statement of claim is dated 19 April 2010 and the reports of Dr De Felice are dated 22 June 2007 (exhibit 6.1) and 7 October 2009 (exhibit 6.2), respectively. Dr De Felice's reports, particularly his report of 22 June 2007, set out a detailed history, which was apparently given to him by the appellant.

61 The appellant, in her testimony at trial, confirmed only a small part of the symptomology she gave to Dr De Felice. In her evidence, the appellant said that the memory of the collision with the pedestrian 'will be always with me': ts 12, and that when she went to see her GP the day after the accident she was in complete shock: ts 14. At the end of her evidence-in-chief, in response to a question about whether she had memories of the accident, she said:

Yes. I try not to. I try to switch off of this because it had huge impact and I still cannot look - when I'm going to Whitfords Avenue, I still cannot look at the site of the accident, but, yeah, I tried my best to forget about whole - whole - whole thing (ts 23).

62 Dr De Felice was called to give evidence. His examination-in-chief comprised the tendering of his reports. He was not cross-examined.

63 In her closing address, the respondent's counsel submitted that there was no evidence of problems with memory and concentration, or sleep disturbance: ts 186. She made no reference to post-traumatic stress disorder. She submitted that there was no evidence of any injury at all suffered by the appellant other than a mild soft tissue injury to the neck and associated headaches.

64 Mr Clyne, on behalf of the appellant, made no reference in his oral closing submissions to post-traumatic stress disorder. At ts 193, he said:

Can I say, standing up here as counsel, this should be assessed as a mild to moderate soft tissue neck injury that has caused headache and has continued for five years and that is deserving of an award for loss of amenity. Not two years. There are various standards that we tend to look at. This is five years now. In terms of economic loss, the only way I think it can be dealt with and I say there is a claim and it should be an award for economic loss, based on a global assessment only and it will not be large. I would have thought for partial [sic] and future something in the order of no more than $50,000, because we're five years on.

65 His Honour dealt with Dr De Felice's evidence at [24] of his reasons. He said:

Dr De Felice diagnosed post-traumatic stress disorder, but not only is that condition not pleaded as an accident consequence, the diagnosis was based upon an account of symptoms such as nightmares not referred to by the [appellant] in evidence.

66 His Honour was, in light of these circumstances, entitled to draw the conclusion that the appellant had failed to prove that she had sustained any post-traumatic stress injury. Further, it was not pleaded as a consequence of the accident. We do not consider reference to 'stress and anxiety', 'problems with memory and concentration' and 'sleep disturbance' to amount to a plea of post-traumatic stress disorder.

67 For these reasons, ground 4 has not been made out.

68 These grounds can be conveniently dealt with together. At [64] of his reasons, his Honour said:

Having regard to the totality of the medical evidence, I find that in the accident the [appellant] sustained a mild cervical injury superimposed on a pre-existing degenerative condition, and also some chest pain of limited duration ... She has some mild residual symptoms which are not physically debilitating. The [appellant's] injuries are at most of the order of 5 per cent of a most extreme case. I assess general damages at $15,000.

69 The reference to '5 per cent of a most extreme case' refers to a percentage of the maximum amount that a court can order for damages for non-pecuniary loss pursuant to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA). On the day judgment was given, general damages assessed to be 5% of the most extreme case would have resulted in no award of general damages to the appellant, having regard to the threshold schedule published pursuant to s 3C(11) of the Motor Vehicle (Third Party Insurance) Act. An award resulting in a payment of $15,000 amounts to a case assessed at between 9.5 - 10% of the most extreme case. Therefore, his Honour has made an error, but an error in favour of the appellant. The respondent has not cross-appealed.

70 The real issue raised by grounds 5 and 6 is an allegation that an award of general damages in the sum of $15,000 is, on the facts of this case, wholly inadequate. The appellant submits that her disabilities and symptomology, including her alleged psychological symptoms, have continued since the accident and warranted 'a far greater assessment than that provisionally made by his Honour': appellant's written submissions, white AB 15.

71 The principles upon which an appellate court will interfere with an award of general damages were recently set out in Houlahan v Pitchen [2009] WASCA 104 by Newnes JA (with whom Pullin & Miller JJA agreed), who said:

[I]t is clear that an appellate court will not interfere with an award of general damages simply because it would have awarded a different figure. It will only interfere if satisfied that the trial judge acted on an error of principle or a mistaken view of the facts, or that the amount of damages awarded is outside the limits of what a sound discretionary judgment could reasonably adopt: Butler v Barnfield Holdings Pty Ltd [2001] WASCA 277 [22] - [23].

The principle to be followed in assessing damages is that the amount of damages must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation: Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 125. The amount must be proportionate to the situation of the particular plaintiff [106] - [107].

72 At the time of the accident, the appellant was 55 years of age. His Honour found that the appellant sustained 'a mild cervical injury superimposed on a pre-existing degenerative condition, and also some chest pain of limited duration'. He rejected the appellant's claim of any post-traumatic stress injury. He found that the appellant suffered 'some mild residual symptoms which are not physically debilitating'. In light of these findings, the sum of $15,000, especially when one considers his Honour's error referred to earlier, does not fall outside the limits of a sound discretionary judgment.

74 This ground attacks his Honour's refusal to make an award for past and future economic loss.

75 His Honour's reasons for this refusal are as follows:

I do not accept that the [appellant's] injuries resulted in diminution of earning capacity. In any event, she received her usual wage until August 2008. Any vocational incapacity is a consequence of non-accident caused conditions [65].

76 This paragraph must be read in context. It appears immediately after his Honour's discussion of the medical evidence and his findings that the appellant suffered a mild cervical injury with mild residual conditions which were not physically debilitating. It is clear that his Honour accepted the evidence of Dr Andrew Harper, an occupational physician, and Dr John Rosenthal, a rehabilitation physician, to conclude that the appellant was fit for her pre-accident employment as an assistant manager in a restaurant.

77 His Honour had earlier in his reasons at [10] noted that the appellant had, since the accident, and unrelated to it, developed bilateral carpal tunnel syndrome, which he accepted 'was and is physically restricting'. His Honour's reference in [65] to any vocational incapacity being a consequence of non-accident caused conditions must be a reference to the appellant's bilateral carpal tunnel syndrome.

78 Based on these findings, his Honour's decision not to award damages for future economic loss is justified.

79 With respect to past economic loss, his Honour found at [65] that until August 2008 the appellant was paid a wage as if she was working in her pre-accident occupation.

80 As the appellant had received her usual wage from the date of the accident to August 2008, no award for economic loss during this period is appropriate.

81 There remains the question of her loss after August 2008 to judgment. Although this period is not specifically addressed by his Honour in his reasons, it is clear enough that by August 2008 any inability to work was as a result of her bilateral carpal tunnel syndrome. Dr Harper, whose evidence his Honour accepted, stated in his report dated 11 April 2006 (exhibit 9.1) that were it not for her hand symptoms she would be capable of full-time work in her pre-accident job as an assistant manager in a restaurant.

83 None of the grounds of appeal alleged by the appellant have been made out. Her appeal fails.

84 It is unnecessary to deal with the notice of contention in light of the failure of the appellant to make out any of her grounds of appeal. Nevertheless, the observation may be made that it is not clear why the respondent and appellant both seem to assume that the last sentence in the reasons [54], in the context of the reasons as a whole, and in particular those parts of the reasons which start at [47], was not a finding that any negligence of the respondent was not causative of the appellant's injuries.