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

Fontaine v Quality Platers (1994) 12 WAR 71

Knight v Maclean [2002] NSWCA 314

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

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

Medlin v SGIC [1995] HCA 5; (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] HCA 34; (1965) 114 CLR 164

Stapley v Gypsum Mines Limited [1953] UKHL 4; [1953] AC 663

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

1. 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).
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

1. 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?

1. 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.
2. 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.
3. 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.

1. 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.

1. 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.
2. 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.
3. 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)

1. 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.
2. 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.
3. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. In August 2010, she reduced her hours to the 15 to 32 hour 'bracket', which meant effectively two shifts per week.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. At the time of the accident her sons were 17, 15, 13 and all were still engaged in education.
16. She considered that she could work at the Casino whilst building her own business because the Casino work paid good money.
17. Prior to the accident she described herself as an 'outdoorsy' person, whose main exercise was running, plus bike riding 'every so often' and kayaking.

1. Relevant to these proceedings, Ms Wreford had had a bilateral breast augmentation in 2006.
2. 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.
3. 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.
4. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. She was referred for physiotherapy in November 2013 for back pain on her right-hand side. She lost a lot of weight.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. She said that her body is deformed and disgusting.
14. 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.
15. 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.
16. She said that she could not cope physically with work as a croupier or mentally with IT or web design.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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).
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

1. 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.
2. 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.
3. 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.

1. 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.
2. 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.
3. 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.

1. 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.

1. 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.
2. 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] HCA 79; (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.
3. 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.
4. Section 5B of the CLA provides:

(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); 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;

(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.

1. 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).

1. 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.
2. 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] HCA 12; (1980) 146 CLR 40, 47 - 48.
3. 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.

1. 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.
2. 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.
3. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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:
13. 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] UKHL 4; [1953] AC 663, 682.
14. 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.
15. 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.
16. 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%.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

1. 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.
2. Dr D'Souza gave evidence, firstly, of his involvement with Ms Wreford prior to the accident, explaining the nature of the condition in her eyes. There was no dispute about his history. He monitored her at intervals for a condition that, in simple terms, amounted to small haemorrhages that were not causing particular problems, and controlling her intraocular pressure, which was significant. He said that after the accident the haemorrhages were suddenly quite dramatic. Dr D'Souza expressed the view that some of her analgesic mediation would affect her visual acuity. He described the right eye haemorrhage as being something quite extraordinary and very serious in nature. He said that subsequently she developed serious scarring inside the eye. Such scarring can block the internal drainage system of the eye, thereby blocking fluid flow and setting up a very serious condition of acute glaucoma, where the pressure inside the eye becomes very high. This occurred in Ms Wreford's case, as a result of which his laser treatment was an emergency procedure. He explained that the vitrectomy performed by Dr Yellachich set in motion a problem called nuclear cataracts, which commonly follow such an operation. Ms Wreford's vision reduced, and she developed inflammation inside the eye. This necessitated further cataract surgery which was performed, in December 2013, by Dr D'Souza at Joondalup Hospital. Her eyes were treated with drops subsequently. This was not the end of Ms Wreford's problems with the eye, as she developed subsequent problems which Dr D'Souza said were definitely not present before the accident. He said that her condition is complex and not all treatments are suitable for every patient.
3. Dr D'Souza said that the pressure in the right eye, which was most affected by the injury, had most recently had very good control. However, he had concerns about the pressure rising in the left eye. He was guarded in relation to the prognosis for the right eye, due to chronic cystoid macular odema. In the left eye, treatment concentrated on the underlying condition, open angle glaucoma, using medications to control the pressure. The prospect was that she would eventually require laser treatment. He said the fact that she had developed a retinal tear in the left eye suggested that she must have had some intense blunt trauma to that eye, which makes it more likely she would develop a cataract in the eye, although there was none at present time.
4. Ms Wreford will undoubtedly require ongoing supervision of an ophthalmologist for her lifetime. She will also require long-term intensive treatment to her right eye to 'hold things together for as long as we can'. Dr D'Souza confirmed that he had been seeing Ms Wreford regularly prior to the accident, at what appeared to be approximately 3-monthly intervals.
5. Dr D'Souza's observation was that after the accident she had some slight slurring of her speech and he could not work out whether she had a slight left sided facial weakness. He said she was distinctly slower in her responses and that many times she appeared to be a little sedated. He was unsure whether that related to her pain or other medications.
6. Under cross-examination, Dr D'Souza stated that after his initial involvement in 2003, Ms Wreford needed ongoing treatment, and that he suspected that at some time in her life, she would have needed operative treatment for one or other eye, because eventually the drainage mechanism in the eye would fail. She could have still developed glaucoma due to eye pressure problems, although they were well controlled. He said that the retinal tear in the left eye had now been treated, and it was not likely that the tear would create further problems. It was possible that there would be a risk of further tears, because there were now inherent weaknesses in other parts of the retina. He said that although retinal tears could occur without trauma, it was highly unlikely to have occurred without trauma in a person of her age.

1. Dr Ross Agnello reviewed Ms Wreford in March 2015. Dr Agnello is an ophthalmologist, and was supplied with all the materials from Dr D'Souza, Dr O'Mahony and Dr Yellachich. In his report of 3 August 2015, which was tendered by consent, he recorded Ms Wreford's ophthalmic history prior to the accident. When he met Ms Wreford, she complained of difficulty going up and down steps, difficulty reading small print, requiring her to use a magnifier. She said she managed with computer work although she needed to magnify the font and that she had not driven since the motor vehicle accident, which Dr Agnello suspected was multifactorial and only partially related to ongoing visual problems.
2. Dr Agnello examined Ms Wreford on 12 March 2015 and 25 June 2015. His diagnosis, in relation to the right eye, was that the vitreous haemorrhage could have been caused by the injuries described occurring in the motor vehicle accident. She had a pre-existent congenital abnormality of the vascular system of the right eye, which had previously caused number of vitreous haemorrhages in this eye and was likely to have been a predisposing factor to the development of a fresh vitreous bleeding from the injuries in the motor vehicle accident.
3. In relation to the left eye, the development of the retinal tear was completely consistent with a compression injury of the left globe, resulting in a deformation of the vitreous base retina complex, causing a tear. He noted right-sided vitrectomy surgery, resulting in complications, including progression of her glaucoma and rapid development of post-vitrectomy cataract in the right eye. The complicated cataract surgery directly related to the complicated vitrectomy surgery.
4. His opinion was that the loss of visual acuity between January 2013 and August 2013 was caused by further vitreous bleeding in the intervening period.
5. He said that she was currently using Xalacom and Azopt drops in both eyes for control of her open-angled glaucoma. Prior to the accident this condition had been adequately managed by Xalacom alone. His view was that the increased dosage of the drops required in both eyes suggested to him that this could be a natural progression of the open-angled glaucoma rather than secondary to the injury and the subsequent surgical events. He said that Ms Wreford had ongoing reduced visual function of the right eye since the post-injury surgeries, that she is still being treated for chronic cystoid macula oedema by Dr Dimitri Yellachich. That condition was when the blood vessels in the centre of the retina leak fluid causing the central macula to become waterlogged which results in varying degrees of reduction of central visual acuity. As a result of that condition, the right visual acuity had deteriorated significantly between her visits to him on 12 March and 25 June 2015.
6. He was cautious about the prognosis, and recommended a detailed opinion regarding macula complications from Dr Yellachich. He was of the opinion that it was unlikely that Ms Wreford would work as croupier because of her ongoing visual difficulties in the right eye. He noted her other problems with memory and her shoulder injury. He doubted that Ms Wreford would have engaged in any employment up until the time of his report.
7. He stated that there was no reason from an ophthalmic point of view why she could not undertake home domestic duties, with some caution about tasks involving depth perception such as cutting and slicing foods. Dr Agnello confirmed that Ms Wreford required continuing management for the right eye, additional glaucoma medication since the motor vehicle accident, and that her visual acuity in the right eye, as a result of cystoid macula oedema and the presence of the pre-retinal membrane required to be dealt with by her vitreoretinal specialist.

1. On 30 October 2013, Dr O'Mahony noted in a consultation that Ms Wreford was complaining of difficulty finding words and that her voice was a little bit slurred. On 7 November 2013, Dr O'Mahony noted that she was not to deal black jack for a week, issued a medical certificate accordingly, and referred her to a physiotherapist. He also noted on 30 October 2013 that Ms Wreford had no pain in her left ear which looked normal.
2. Mr Tim Barnwell, a sports physiotherapist at Lifecare Physiotherapy in Applecross, first saw Ms Wreford on 11 November 2013. In a letter dated 19 May 2014 to Dr O'Mahony, he recorded that she had made a gradual recovery since commencing physiotherapy, that her shoulder had improved since surgery but she continued to complain of weakness and pain. She expressed to him that she was concerned that she would be unable to return to work as a croupier. He noted that there was some anxiety related to this. His physical findings he said were all favourable at the point following surgery at which he was writing. He said that due to her current levels of anxiety, he wondered whether assistance of a clinical psychologist would be useful.
3. Subsequently, in a letter dated 13 January 2015, Ms Tara West of Star Physiotherapy recorded that she first saw Ms Wreford on 23 June 2014 for treatment of her left shoulder pain. She went on to say that she had seen her weekly, but that despite this her progress was very slow. She said that she suspected there was some underlying post-traumatic anxiety and stress and that on the last two occasions she saw her she appeared to be quite drowsy which Ms Wreford attributed to her medication. Ms West stressed to Ms Wreford the importance of adhering to her home exercise programme as improving the strength and mobility in her shoulder joint would ultimately improve her level of function.

1. On 20 November 2013, Dr O'Mahony referred Ms Wreford to Mr Peter Campbell in relation to her fractured clavicle. Mr Campbell's report were tendered by consent. He first saw her on 7 January 2014 and said that she had been left with a malunion of her left clavicle. He noted her work as a croupier and which she found difficult because of the malunion, she had marked foreshortening of her clavicle. He recommended refixing it with internal stabilisation.
2. On 30 January 2014, Dr Campbell performed an osteotomy on the clavicle, then bone grafted and stabilised the clavicle with a plate. On 7 February, Dr Campbell reported that X-rays showed her to have an excellent position of the plate and screws, that the haematoma that had appeared would eventually re-absorb and he advised her to mobilise within limits of her discomfort.
3. On 28 April 2014, Dr Campbell reported that she had an extensive fracture of the scapula which had united, but caused a persistent deformity posteriorly. He did not believe that any osteotomy or fixation would effectively improve the clinical or functional situation. As to the collarbone, his view was that everything seemed to be settling nicely and that it had a 'pretty good contour'.
4. By 11 July 2014, Mr Campbell expressed the view to the Insurance Commission of Western Australia that he saw no reason why she should require ongoing intensive physiotherapy following the stabilisation of her condition surgically. In September 2014, the X-rays showed that the clavicle was solidly healed. Mr Campbell said he would remove the plates and screws, which occurred on 6 October 2014. On 17 October 2014, Mr Campbell, having reviewed Ms Wreford again, advised that her wounds were healing nicely and that she could return to whatever activity she was comfortable with. On 20 November 2014, Mr Campbell again expressed the view that he did not see any major benefit from ongoing passive physiotherapy for specific injuries to her pectoral girdle.

1. In the meantime, whilst undergoing orthopaedic treatment for her shoulder, Ms Wreford also saw Mr Tony Connell on 27 March 2014. Mr Connell is a plastic and reconstructive surgeon, who had previously treated Ms Wreford with bilateral submuscular augmentation of her breasts, eight years before. On 27 March 2014, he recorded obvious rotation of both anatomical implants, with bilateral breast ptosis, but no evidence of implant rupture. He saw that the abrasions to her left shoulder had healed well and she had no significant limitation in shoulder movement. He recommended the removal of both the implants, and their replacement with a smaller implant after refashioning an implant pocket.
2. On 29 May 2014, Ms Wreford underwent the bilateral procedure which was post-operatively uncomplicated. By 6 June 2014, Mr Connell recorded that the wounds had healed well and the sutures were removed.

1. In relation to her orthopaedic injuries, Ms Wreford was reviewed by Professor Sikorski in September 2014. Professor Sikorski is a consultant orthopaedic surgeon, now retired from surgery since 2007. He saw her on two occasions, on 3 and 12 September. He noted that her mood was quite different on the two days. Initially, she was calm but on the second occasion she was upset and cried. He said that she showed a significant deformity of the left clavicle with prominence, overlying scarring, shortening and posteriorly there was a deformity around the scapula and a quite significant dropping of the left shoulder. He said that whilst asymmetry of shoulder height is normal, usually the shoulder on the dominant side is lower. He noted that the scars anteriorly were hypersensitive. The right clavicle was 15 cm, whilst the left was 13 cm in length. There was restriction of the cervical spine particularly in relation to rotation to the left and on lateral flexion in both directions. He noted a scar over the left knee of 2 cm. Also a very small scar over the dorsum of the foot measuring less than 1 cm.
2. In his opinion, Ms Wreford had significant problems around the left shoulder with shortening and prominence of the clavicle, a limitation of movement range of the shoulder and deformity over the scapula which was visible from the rear. He said she was conscious of the chest deformity, but that it was not very obvious clinically. He said that she had chest pain which was difficult to account for. One possibility was the non-union of one of the rib fractures, which if it persisted would indicate a further CT scan. He also said that the symptom pattern was suggestive of an emotional basis, due to the intermittent symptoms and no clear mechanical pattern. In his report he said that she also had a number of problems, which in themselves seem to be relatively trivial, but which had assumed a disproportionate significance, possibly related to her psychological state. He thought that she had a major psychological disturbance.
3. In evidence, he said that where a patient had experienced major trauma, such as this, it would be in itself a very potent source of problems such as PTSD. He was surprised that she had not, at the time he saw her, had any treatment for psychological symptoms. He said they were significant. His view was that until she got some resolution of the psychological issues she would be unable to rehabilitate fully from either a musculoskeletal or a social perspective. At that time, he did not believe she was fit to go back to work until she received some form of professional psychological support. Further, in her work as a croupier her reach was important. Apart from the removal of the fixation metal work in the clavicle, at the time that he saw her there was no other musculoskeletal treatment being contemplated. He did not believe that she had many surgical options. In that situation her treatment would be continued exercise with some low grade analgesic support, but that her psychological treatment was vital to her recovery.

1. On 16 June 2014, Dr O'Mahony referred Ms Wreford to Professor Goodheart. Dr Goodheart first saw Ms Wreford on 22 July 2014. Dr Goodheart is a consultant neurologist in practice in South Perth. When he first saw Ms Wreford, she complained of impairment of short term memory, she also described some slurring of speech, and difficulty finding the correct word. She said she was unable to return to mental pastimes such as Sudoku. She said she had great difficulty returning to work and trouble with simple calculations. She described left limb weakness and a tendency to myoclonic jerks (twitching) in the left limb.
2. His initial view was that there had been a significant global brain injury in the course of the incident on 12 June 2013 and that there may be a component of hypoxia secondary to hypotension. He arranged for a cranial MR scan and EEG to be performed. On 13 August 2014, Dr Goodheart reported to Dr O'Mahony that the scans did not show any significant abnormality. He said there was no asymmetry of the motor pathways. He concluded that the EEG was within normal limits. He said there would not appear to be scope for further specific intervention. He did not doubt that there had been a significant head injury, probably on the basis of hypoxia which might also account for the asymmetry of limb function and the cognitive symptoms.
3. On 13 November 2014, he repeated his neurological examination. He said there were no focal signs. He made various suggestions of medication in relation to the spasms that Ms Wreford complained of, but also explained to her that he had concerns about their adverse effect on her cognitive function. In particular, he said that clonazepam at night could be of benefit. He arranged for further investigations in relation to her left wrist. He found no significant neuropathy in relation to those investigations and suggested that the conclusion must be irritation of the soft tissue structures. Subsequently, Ms Wreford reported to him that the clonazepam therapy was quite helpful.
4. In evidence, Dr Goodheart confirmed that he had formed the opinion that she had suffered a cognitive deficit on the basis of her injury. He explained further, that there was a psychological component to the symptoms that she was experiencing. Subsequent to Dr Goodheart's initial consultations with Ms Wreford, Ms Wreford had neuropsychological testing by Ms Mandy Vidovich. Dr Goodheart was aware of the reports of Ms Vidovich and the results of testing at the time of trial. He noted that Ms Vidovich agreed that there was cognitive dysfunction, but held the opinion that the majority of the dysfunction was psychological in nature. Dr Goodheart maintained his opinion that the majority was organic in nature, related to hypoxic brain damage. In cross-examination, he explained that he based his opinion upon the history and the injuries sustained. By reference to the RPH notes, he said that you could not have a chest injury of that degree without some hypoxia. He said he looked for the quality of the blood flow through the carotid and vertebral system. Where there was a chest injury, the pressure dynamics within the chest may cause good flow through the aorta, but a poor flow through the cervical vessels. The blood pressure reading of 80/40 was significant hypotension. By the time she arrived at RPH, she was on oxygen, probably in the ambulance, and 100% oxygen in RPH accident and emergency. That gave her every chance of overcoming the hypoxia. A blood pressure of 80/40 was significantly low and certainly consistent with brain damage if it persisted for more than a minute or two.
5. His view was that there was organic brain damage, a component of which was due to lack of oxygen, but he also said there may have been a direct head injury at the same time. He referred to the injuries as being life threatening, and said that had she been delayed at the site for much longer she would probably have succumbed. Therefore, initially all medical attention was paid to cardiorespiratory function, in an attempt to maintain life.
6. He accepted that generally a CT scan would be obtained in an emergency department. He agreed that the information available did not suggest strong apprehension of a direct head injury. It was more likely a global hypoxic injury which would not show on a CT scan. He was surprised when shown the broken helmet that Ms Wreford was wearing. It was suggested to him that the 4WD had run over the plaintiff's head thereby breaking the helmet. He said that he was no expert on helmets.
7. From the outset, in her consultations with Dr Goodheart, Ms Wreford complained of short term memory loss. She said she had to write notes and lists. A copy of the hospital notes, subsequently produced, confirmed that there was a CT scan when Ms Wreford arrived at the hospital.
8. On 7 October 2014, Dr O'Mahoney gave referrals for psychological treatment. On 22 October 2014, he noted that Ms Wreford wished to see Dr John Perica, a psychiatrist. On 5 November 2014, Ms Wreford reported to him that she was woken by spasms, she was then unable to sleep, she felt that they were getting worse. She reported that it hurt every time she took a breath and that she was tender in the lower sternum. By 19 November 2014, Dr O'Mahony was prescribing clonazepam. On 15 December 2014, he recorded a great effect with clonazepam, and Ms Wreford said she was sleeping well without spasms.
9. On 7 January, 2015 Dr Perica contacted Dr O'Mahony and said that he would not see Ms Wreford again, that she had accused him of taking kickbacks from the pharmaceutical industry, but that he thought that Epilim would assist her. On 8 January, Ms Wreford consulted Dr O'Mahony. She was upset and said that the psychiatrist was too eager to write scripts rather than counsel her and she wished to see Dr Nick De Felice. According, Dr O'Mahony referred her.
10. In a letter dated 10 April 2015, Dr De Felice reported that he had seen Ms Wreford, that it 'wasn't the easiest assessment', because of tangentiality, but there were PTSD and anxiety symptoms. He observed that, notwithstanding the severity of her injuries, Ms Wreford was dismissive of depressive symptoms and would not fulfil the diagnostic criteria for them. He said that symptoms were consistent with an adjustment disorder with depressed and anxious mood. He described Ms Wreford as a 'vague historian' who might experience the stressors of the medico-legal process more than someone else. He also reported that there had been changes in her self-image, particularly her body image and that she was conscious of her scars.
11. Ms Wreford made it very clear to him that she was not keen on pharmacological treatment. He commented that he thought that was 'fair enough'. He said there were no specific pharmacological treatments for PTSD. Treatment would revolve around symptomatic treatment for insomnia, anxiety and any depression that might arise. He said that she was presently comfortable with clonazepam, but that it would not be unreasonable to try other medications. He said the mainstay treatment of PTSD was psychological treatment, and he pointed out to her that he did not do psychotherapy. He did not think that he could add a great deal and had not made a further appointment. Dr De Felice was not called to give evidence.
12. On 22 April 2015, Dr O'Mahony referred Ms Wreford to Jenny Connolly, a psychologist for treatment of PTSD.

1. In this period, in 2015, Ms Wreford saw Mandy Vidovich, a clinical neuropsychologist, initially, on 12 January 2015 and secondly on 29 June 2015. She was subsequently seen again in early 2016. Ms Connolly initially only conducted an interview, as Ms Wreford appeared to have a number of unmet psychological needs which were pertinent to be addressed prior to initiating cognitive testing.
2. On 29 June 2015, Ms Wreford underwent neuropsychological assessment. Ms Vidovich noted features of Ms Wreford's behaviour, particularly her level of reactivity/distress during some of the tasks, which appeared amplified in the context of misperception regarding her performance. Ms Wreford's cognitive concerns were the same as in January 2015, including trouble maintaining concentration, distractibility and problems with memory recall, together with ongoing word finding difficulties. Ms Wreford considered that there had been an improvement in her slurring of speech in June. A number of tests were administered. Ms Wreford became agitated perceiving herself as 'stupid' and unable to complete them accurately.
3. In her report of 29 June 2015, Ms Vidovich concluded it had not been possible to undertake an assessment of Ms Wreford's cognition given features of her presentation and behaviour. Ms Vidovich did not consider that the documents provided to her supported a significant acquired brain injury at the time of accident. She said that Ms Wreford's recall of events, her apparent subsequent recovery in hospital, lack of early neurological investigations all raised some doubt about such injury at the time of accident. Ms Vidovich also noted that Ms Wreford was experiencing a number of significant psychological issues, was vigilant to pain symptoms, and took medications which could influence cognition.
4. The full neurological assessment occurred in February of 2016. Ms Vidovich noticed that Ms Wreford's appearance was similar to the previous occasions, although she appeared possibly improved in her capacity to regulate her emotional distress. She remained teary, self-deprecating, cynical and defensive in her commentary and interaction. Ms Wreford reported that her cognitive functioning had continued to decline with time. She expressed concern that she would develop Alzheimer's disease.
5. Ms Vidovich, in her comprehensive reports noted all current medical and physical issues. The neuropsychological testing was completed across two sessions. Ms Wreford was teary when completing some tasks, particularly if she perceived herself to be performing poorly and psychological factors clearly intruded on the quality of her test performance. Ms Vidovich recorded that aside from her tendency to become side-tracked at times, there were no indicators of impairment of her expressive or receptive language abilities at the conversational level. Ms Wreford was orientated and able to provide details regarding recent news and personal events. Formal assessment of her memory was undertaken. Her performances upon visual memory measures were consistently well within the average range.
6. Ms Vidovich said that, despite her negative commentary, Ms Wreford managed sound performances in her ability to encode and spontaneously recall varied visual designs and spatial locations of visual images. Ms Wreford became teary and upset when required to recall prose material, although she still managed 'low average' immediate and delayed memory performances. Her total recall of a 16 item word list was also well within normal limits, despite her varied results across trials. Her retention of this information was also of an average quality.
7. Ms Vidovich summarised that significant psychological symptoms remained, as evidenced by her discourse and behaviour and comments regarding her daily functioning. In addition to symptoms of trauma, anxiety and depression, she continued to disclose sleep disturbance, awareness of physical pain and sensory issues and a perceived ongoing decline in her cognition. The latter difficulties were characterised by problematic attention and concentration, impaired memory and trouble with aspects of her higher level thinking process. Ms Vidovich said that considering her educational and occupational background and performance, she expected Ms Wreford to be a woman of average cognitive capacity. Formal assessment identified low average to average performances across various assessed domains. Mild deficiencies were evident with semantic retrieval, upon measures of attention and with the application of strategy. Whilst the latter influenced the quality of her memory performances, she demonstrated sound ability to learn and retain new information. There were no indications of any visuomotor slowing or impairment in visuospatial perceptual skills.
8. Negative self-perceptions, low self-confidence and teariness undermined Ms Wreford's application to the assessment process. Ms Vidovich explained in evidence that the tests were designed without feedback, so that people could not deduce what they were doing during the tests. Ms Vidovich said that subjectively Ms Wreford felt that her memory was deficient, but this did not match the test results.
9. Ms Vidovich's view was that Ms Wreford's sound retention of newly learnt material would refute there being an organic component to her claims regarding her memory. Likely explanations for her concerns of cognition were her continued intrusive psychopathology, vigilance regarding her somatic symptoms, sleep disturbance and medication. She explained that anxiety and focus can make it very difficult to maintain attention effectively. Ms Wreford was internally focused on a lot of things physical and perceptual. Ms Vidovich said that the hippocampus in the brain was very important to the retention of information and was a very vulnerable to hypoxic injury. Ms Wreford's performance suggested no significant injury, therefore no hypoxia.
10. In summary, Ms Vidovich was of the view that mild areas of deficiency in her cognition could be readily explained by the persistent and intrusive nature of her psychiatric symptoms of anxiety, depression and stress. From a cognitive perspective, permanent disability was most unlikely but given the time since the accident and the slow progress in her psychological wellbeing, ongoing disruptions to her cognitive functioning might be experienced. Ms Vidovich was of the opinion she was unfit for any type of employment without intensive psychotherapy and psychiatric assistance. She recommended that Ms Wreford participate in intensive psychotherapy and deferred to Ms Connolly in terms of the timeframe. She would agree that one-on-one once a week was suitable.

1. Two psychiatrists gave evidence at trial, firstly Dr Gemma Edwards-Smith, a consultant psychiatrist called by counsel for Ms Wreford. Dr Edwards-Smith is an appropriately qualified psychiatrist in practice in Western Australia. Her qualifications were not challenged. Dr Edwards-Smith reviewed Ms Wreford on the 19 July 2017 and the 8 August 2017 and furnished a report of the latter date. Dr Edwards-Smith had been provided with all the previous reports and materials prior to her assessment. She had the opinion of Dr Eileen Tay, the second psychiatrist, dated the 17 June 2016.
2. Dr Edwards-Smith's report details the history, as given by Ms Wreford, whom she quotes verbatim at times. Her reports give examples of Ms Wreford's tendency to express herself in a 'all or nothing' manner, for example that she feels that 'she is broken', that she described herself as 'totally deformed', that she has very high levels of anxiety 'all the time', that 'everything seems to affect her'. Dr Edwards-Smith articulates this as a tendency to speak in relatively 'catastrophic terms'.
3. At the first interview, on the 19 July, she presented as highly anxious, tremulous and shaky with difficulty responding to questions. Dr Edwards-Smith notes that she had seen another doctor earlier that day (Dr Jenkins), and was feeling tired. At the second appointment, Ms Wreford was more composed, had taken Valium one hour prior to the appointment and was less anxious and distressed. Dr Edwards-Smith's opinion was that Ms Wreford met the diagnostic criteria for a diagnosis of PTSD, with the road traffic incident clearly being the traumatic event, together with Ms Wreford's description of trauma related symptoms in her hospital treatment. She recorded that Ms Wreford had apparent issues with memory throughout her review.
4. She agreed with Ms Vidovich that the sequelae of PTSD, combined with benzodiazepine and analgesic medications could account for cognitive symptoms. She thought there were indications for psychiatric treatment. She noted Ms Wreford's aversion to pharmacological treatment, and said that therefore psychological treatment was likely to be her 'main stay'. She was of the view that there was evidence of a significant pre-existing history of anxiety, which was possibly one explanation for her poor recovery. This was based upon Ms Wreford's history of the end of her marriage, bullying at her work place and her attendance for treatment at Bentley Hospital. Dr Edwards-Smith recommended a further trial of antidepressant type medication. She suggested an allowance be made for 12 treatment sessions with the clinical psychologist to include anxiety management and cognitive behavioral therapy. She also recommended that an allowance be made for six long appointments per year with Ms Wreford's general practitioner. She said that Ms Wreford was not fit for work when she saw her, but in the medium to long term there might be some prospects, although this was a tentative view. She confirmed, in evidence, that she observed anxiety, that Ms Wreford did speak in all or nothing language, and that she had issues with memory. She based the pre-existing history of anxiety on the history given by Ms Wreford and the medical records.
5. There was no real challenge to Dr Edwards-Smith's opinion. She was pointed to the Bentley Hospital records, from the end of 2012, of which she was aware. She confirmed that Valium was a benzodiazepine, which also had a tranquilising and anti-anxiety effect. The problem, she said, with benzodiazepine medications was tolerance. It was only recommended for use over a two to four week period, and became less effective, meaning that an individual needed more per dose in order to get the same effect. She confirmed that she found it difficult obtaining a history from Ms Wreford, in terms of eliciting the information in a coherent, logical and sequential manner. Ms Wreford said she did not recall the Bentley Hospital history, specifically a claimed history of 10 years of anxiety.
6. Dr Eileen Tay was a consultant psychiatrist called on behalf of Mr Lyle. Her qualifications were unchallenged. She had been provided with all the documents prior to her assessment of Ms Wreford on the 7 June 2016. Dr Tay said she had difficulties in her assessment, initially due to the resistance of Ms Wreford, who she said stated 'you guys always twist things around anyway'. However, she believed that Ms Wreford participated in the assessment to the best of her ability. Her report is long and detailed, and recounts Ms Wreford's view of her circumstances, the accident and history. Dr Tay noted that it was difficult to obtain a clear timeline of Ms Wresford's psychological symptoms after the accident, other than that Ms Wreford stated 'it all started from day one'. Her report notes that Ms Wreford was critical of those treating her at the RPH. Ms Wreford told Dr Tay that her psychological symptoms were 'not picked up by her GP who just kept giving her pain killers'.
7. In her summary and diagnosis, Dr Tay states that what 'remains in dispute' is the degree of neurocognitive injury, some ongoing unexplained neurological symptoms and finally her psychological condition and diagnosis. Dr Tay was aware of the assessment by Ms Vidovich of 23 March 2016. Dr Tay's opinion was that, from the outset of her assessment, Ms Wreford attempted to influence the assessment process by her comments. Dr Tay said that, similarly to Dr De Felice, Ms Wreford did not spontaneously offer flashbacks or nightmares of the accident, even though she was specifically asked what keeps her awake at night. Dr Tay's view was that her tangentiality as an historian was not due to neurocognitive difficulties but rather to her psychological and emotional state. Dr Tay agreed that Ms Wreford fulfilled the criteria for a diagnosis of PTSD, having been subject to a life-threatening event, with subsequent symptoms consistent, not just with being in an accident, but with serious and complicated sequelae.
8. Dr Tay noted, like Ms Vidovich, that the GP records were not complete. She referred to an entry of the 21 March 2013, where it was apparent that Ms Wreford had been prescribed medications, Avanza, Pristiq and Valium. The note made then was that she was feeling better and better able to control her anxiety and that she had stopped her medications. She had reduced her hours at work, with more exercise she felt her energy was returning.
9. In short, Dr Tay was of the view that the diagnosis was one of PTSD, even though she had only some, not all, of the recognised symptoms. Dr Tay expressed the view that Ms Wreford had withheld information from her regarding her previous treatment for anxiety and/or depression. She said this did not preclude the diagnosis of PTSD, but it might have implications for ongoing treatment. She said that Ms Wreford was steadfastly against psychotropic medications, and had made exaggerated claims about psychiatrists being in cahoots with pharmaceutical companies. She said the attitude may reflect some aspects of her underlying personality structure, or, in the context of this process, Ms Wreford was catastrophizing her experiences with the medical profession, both past and present.
10. Dr Tay said that Ms Wreford's expectation of being treated badly, disrespected or not believed were significant factors in her presentation and also in the overall process of assessment. She noted that Ms Wreford said that she had not been able to do anything, had been spending days in bed and been unable to attend properly to domestic activities. She had resigned from her job as a croupier, mainly due to physical restrictions from her shoulder and scapula injuries. Dr Tay noted that her claim of being unable to do calculations as required, which had not been substantiated by formal neuropsychological assessment.
11. Dr Tay did not disagree with Ms Vidovich's comment that her psychiatric condition was impacting her subjective ability to perform certain tasks. Dr Tay also noted that in addition to PTSD, that Ms Wreford had difficulty relating to her body image. Ms Wreford was convinced of her perceived degree of physical deformity. Dr Tay believed that Ms Wreford was catastrophic in her self-assessment in that regard. This reflected her underlying personality structure, as opposed to all being attributable to the accident. The way in which she perceives herself is reflected in how she communicates her subjective levels of distress, real or perceived.
12. In Dr Tay's view, Ms Wreford was not fit for employment. PTSD was a treatable condition and the psychologist had reported progress, albeit slow. Her prognosis for return to work by reason of her PTSD was poor. She would recommend that there be pharmacological therapy, in addition to her psychological therapy, stating that this was reasonable given her aroused and distressed state. It was appropriate and recommended for persistent disabling PTSD, such as reported by Ms Wreford.
13. In evidence, she said that medication, such as amitriptyline taken at night would assist with her sleep, and also play a role in both pain and anxiety control. Further, SSRI medications treat anxiety, and are not only antidepressants. Dr Tay stated that, on the basis of her assessment, Ms Wreford had secondary depressive cognitions about herself, but in the main remained highly anxious about her future and about what she could do and was concerned about her body image.
14. Dr Tay was not significantly challenged in cross-examination. She was referred to Dr De Felice's report. She did not agree with the proposition that psychological treatment was the main stay treatment of PTSD. She stated that it depended upon on how the patient progressed or otherwise. If they are getting worse, she said then it was necessary to consider pharmacological treatment. She noted that she did not have the history of the evolution of the psychiatric symptoms, because it was not contained in the GP notes. She confirmed that benzodiazepines are not recommended for long term use because of issues with dependence and tolerance. She said that people needed higher doses for the same effect and that they also caused what was called 'rebound anxiety'; when patients stop the medication, the anxiety returns worse than previously. She was aware that Ms Wreford had been prescribed clonazepam for her muscular spasms. Clonazepam is also a benzodiazepine. She was aware of the therapy provided by Ms Connolly, and had seen her reports. She was firm in her opinion that medication, such as SSRIs, would be beneficial for Ms Wreford and advised that there were a large group of these medications which could be tried.
15. In summary, therefore, there was little or no difference between the views of the two consultant psychiatrists expressed in reports about a year apart in 2016 and 2017 or in evidence. They both diagnosed PTSD and anxiety in Ms Wreford, they both recommended a trial of further pharmacological therapy, in conjunction with psychological treatment. They both encountered similar difficulties in their assessment of Ms Wreford, due to her manner of expression and what they both described as her 'catastrophizing'. They both attributed that characteristic to her underlying personality structure, rather than illness. They both attributed the PTSD to the motor vehicle accident and its consequences.

1. Jenny Connolly is a psychologist in practice in Como, who saw Ms Wreford initially on the 23 April 2015, upon referral from Dr O'Mahony. She has treated Ms Wreford, with some interruptions, since that time. At the time of trial she had seen her on approximately 40 occasions. She said that Ms Wreford was referred for assistance with anxiety and depression, accompanied by PTSD. Her assessment agrees with those diagnoses. She found her emotions to be dysregulated. Initial treatment focused on stabilizing her emotions using standard cognitive behavior treatment. She said that her physical reactions and the biological trauma impact were fairly consistent with the extent of the trauma of her accident. She also found that Ms Wreford would frequently deviate from one topic of conversation to another. She said that that was a typical PTSD symptom. She said that Ms Wreford settled down very well subsequent to a recent exacerbation.
2. Ms Connolly was of the view that Ms Wreford needed weekly treatment for up to a year, and that she should continue with treatment after that, probably monthly for one or two years. She did not believe that Ms Wreford was fit for work, due to a combination of her confidence in her own concentration and cognitive functioning, as well as how easily triggered she was to emotional distress, both of which were barriers to being able to hold a job successfully. It was her opinion that Ms Wreford's sense of self-worth depended upon her capacity to work hard and to be independent and successful.
3. In cross-examination, she was referred to similarities between Ms Wreford's previous presentation at Bentley Hospital, taken from the notes, and her current complaints. Ms Connolly's response was that at the time she saw her, she was withdrawing to bed to hide from the world, which Ms Connolly considered to be a symptom of anxiety. She presented with symptoms of poor adjustment, with depressed symptoms. She interpreted the fatigue complained of previously to be different. She confirmed that some of the complaints in the Bentley Hospital notes were similar to complaints currently made, such as forgetfulness, increased fatigue, decreased socialization, being tearful and irritable. Ms Wreford had responded to the type of therapy provided by Ms Connolly and that response was positive and likely to continue.
4. In her report, Ms Connolly noted that Ms Wreford had a history of stress and distress pre-dating the accident. She said that research and clinical experience demonstrated that such a history increases the likelihood of PTSD. However, she said that Ms Wreford was involved in a very traumatic incident and her symptoms were consistent with PTSD and adjustment order. She said that Ms Wreford had made significant progress until a recent relapse (May 2017). She was of the view that Ms Wreford was likely to continue to require considerable further psychological treatment for the PTSD as well as assistance with adjustment issues.
5. In her report she wrote:

Recreationally, Ms Wreford has recommenced some past fitness activities, such as walking her dog, but this exposes her to many triggers for her trauma reactions - including passing by the sight of her accident, which is very close to her home, as well as sirens, emergency service vehicles, and other people with serious physical injuries - as well as reminding her of the more serious fitness activities she enjoyed prior to her accident, with associated feelings of loss and sadness. More sedentary leisure pursuits such as puzzles have been affected by her poor centration and cognitive function.

Domestically, Ms Wreford has been restricted by her physical injuries and low mood. Her three sons in their teenage years have been little help in his regard, and Ms Wreford has been frustrated by the extra time taken to complete any chores and the declining state of her home.

1. Ms Connolly was not optimistic, given the time since the accident and the limited gains from treatment, about the prognosis in relation to PTSD, but that the prognosis in relation to the adjustment disorder was better. It was her opinion that once the legal proceedings were concluded and her circumstances were more stable, she would adjust better to her new life.

1. To complete the medical evidence at trial, there was a report of Dr Jenkins, dated the 19 July 2017. Dr Jenkins is a physician, engaged on behalf of Ms Wreford to review the extensive medical documentation and to assess Ms Wreford. The majority of his report consisted of noting the contents of many earlier reports. Presentation of evidence in this manner is, in my view, far from helpful. It was difficult to distinguish in his report what he found from what he reported others had found.
2. He examined Ms Wreford on the 19 July 2017. On assessment he described Ms Wreford having a distinct deformity of her right anterior chest wall with prominence of the ribs above the left breast, and a rotational scoliosis with prominence of the right periscapular region. He said that her breast augmentation itself was satisfactory in appearance with scarring considered to be within normal limits for the procedure she had undertaken. He said that she was left with significant scarring over her left clavicle, left upper arm, left chest and posterior lateral left forearm. Relevant to his assessment of the possibility of an acquired brain injury, caused by hypoxia, was that she had asymmetry of her upper limb reflexes without significant weakness. He said it was likely that such injury had recovered to some extent. He said that her neurocognitive complaints were entirely consistent with a hypoxic brain injury, but, in his view, it may have improved somewhat over the last four years, as evidenced by her being better when recollecting recent events compared to distant events. He also said that her neurocognitive presentation was significantly clouded by the presence of chronic severe psychiatric symptoms. On balance, he said that he felt she had suffered a mild acquired brain injury with mild neurocognitive deficits, which had improved. Furthermore, neurocognitive and neuropsychiatric assessment suggested that her psychiatric condition was the most contributory to her neurocognitive symptoms and he agreed with this.
3. He said that she would be likely to develop accelerated thoracic spondylosis in the future, given her thoracic bone deformity and scoliosis. He noted that she had not developed any accelerated cervical spondylosis, but there was a possibility of this. He felt that the prognosis overall was rather poor, and that the effects of the accident were devastating and permanent. Putting to one side evidence of severe psychiatric symptoms, it appeared to him that her neurocognitive impairments were subtle, mild at worst. The prognosis with regard to her psychiatric condition was more guarded and there was, in his view, scope for further treatment.
4. Dr Jenkins was not cross-examined. He gave some estimates of costs for various future treatment, which were not disputed.

1. As can be seen from the exposition of the medical treatment in these reasons, Ms Wreford has undergone an extensive period of multiple treatments, consultations and assessments. These are consistent with the seriousness of her injuries, and the multiple consequences flowing from them. As already indicated, there is no dispute about the nature and extent of her orthopaedic injuries. I accept entirely that she is left with difficulty in breathing, due to the orthopaedic damage to her ribs plus the scarring to the lungs themselves. This is not something to be underestimated, as her inability to breathe deeply causes her restrictions on activity. The injuries to her shoulder and collarbone are significant and have left her with, even after treatment by Mr Campbell, restriction of movement and pain in the left shoulder. Although it might be said that she has made a good recovery, this is relative to the severity of the injuries, and she does have persistent orthopaedic deficits.
2. She has also cosmetic injuries. There is the deformity of her thoracic area, which although Professor Sikorski describes as being not particularly significant, Ms Wreford is very conscious of it, together with the deformed scapula and scarring. People have different reactions to things such as scarring. That is the human experience. Ms Wreford is conscious of her scarring, perhaps to a greater extent than many would be. I have viewed the residual scarring to the clavicle, some scarring on the arm, and the deformity of the rib cage and shoulder. It is not something that can be completely disguised, and although compared with other scarring injuries it is not gross or extensive, it is a real injury keenly felt by Ms Wreford.
3. There was no dispute on the evidence as to the conditions that Ms Wreford suffers with her eyes and their treatment, plus their persistent and long-term effects. She will need continued monitoring and treatment in both eyes. The only issue arising in relation to her eye condition is not whether damage was caused in the accident, but what significance is to be attached to the pre-existing conditions. She had a congenital abnormality of the vascular system in the right eye, which had previously caused a number of vitreous haemorrhages, and was likely to have been a predisposing factor to the development of fresh vitreous bleeding in the accident. She also had open angle glaucoma, for which she had been receiving treatment since 2003, apparently reasonably effectively. The degree of treatment needed is now significantly greater, but she would have needed treatment for glaucoma, in any event, without the accident. The glaucoma, described by Dr D'Sousa, can result in very high pressures within the eye which require surgical intervention. In the six months or so prior to the accident, she was complaining to Dr Lo of difficulties due to her eyesight at work. None of the ophthalmic witnesses could state with any precision the natural course of her condition had there been no accident. It may be that she would have come to laser surgery to relieve pressure in either eye at some point. It may be that surgery of that kind could have caused complications, as indeed occurred after the accident. But there was no precise statement as to the period of time over which she would have enjoyed her sight without such treatment. The damage to her eyes in June 2013 was undisputable caused by the accident.
4. I find that she had a pre-existing condition which made her vulnerable to greater injury in this accident to the eyes. I accept that her prior condition would have likely exposed her to some difficulties in the future. These are uncertain. The only way these circumstances can be reflected in an award of damages is as a contingency and reflecting in that in a percentage reduction. It does not in any way, in my view, relieve the defendant of the consequences of the injury caused by the accident: Purkess v Critenden [1965] HCA 34; (1965) 114 CLR 164, 171.
5. I find that Ms Wreford suffers from complex PTSD which persists. There are two issues in connection with her mental health. Firstly, the significance of anxiety that she suffered prior to the accident. The evidence supports a finding that Ms Wreford had suffered anxiety over a period of years, described to Dr Lo by Ms Wreford as about five years prior to the consultation in late 2012. Ms Wreford is recorded as having asserted a 10 year history when she attended at Bentley Hospital. She said in evidence and in history given to various medical witnesses that she suffered anxiety after the breakdown of her marriage in 2002. I find that the pre-existing anxiety which she had endured over 5 to 10 years and would have made Ms Wreford more vulnerable to PTSD, and could have made PTSD more difficult to treat. It also is relevant to the assessment of economic losses to follow.
6. The second issue in relation to the psychological injury arises from the appropriate method of treatment. Ms Wreford steadfastly refuses to consider further treatment by way of medication. The medications recommended are from a family known as the 'SSRI' medications (selective serotonin non-reuptake inhibitors). They are recommended by both of the psychiatrists at trial in addition to psychological therapy for Ms Wreford. Ms Wreford previously and prior to the accident had tried a number of such medications prescribed by Dr O'Mahony, which she said were not of benefit and had undesirable side effects. It is this experience, prior to the accident that informs, apparently, her current refusal to consider further medications. It is claimed on behalf of Mr Lyle that this amounts to a failure to mitigate her loss.
7. Counsel for Mr Lyle referred to Fontaine v Quality Platers (1994) 12 WAR 71 in relation to a medical failure to mitigate loss. The test to be applied is whether on a balance of probabilities, the person has acted unreasonably in refusing to participate in a treatment suggested. The reasonableness of the refusal must depend upon the state of knowledge and understanding of the relevant factors related to the treatment at the time the choice is offered. Those subjective factors must also take into account any psychological factors that may render some element of the treatment undesirable or unknown to the patient. In that case, there were two types of rehabilitation involved. The first was simple exercises, which carried no risk, which it would have been reasonable for the patient to have adopted. The second element was a recommendation for psychiatric treatment, potentially involving inpatient treatment and the separation of the patient from his wife. In that case, the patient did not consider that there was any psychological component to his type of injury and his refusal to undergo the psychiatric rehabilitation was found to be not unreasonable.
8. The issue here is that a trial of medication is recommended by both Dr Edwards-Smith and Dr Tay. They considered it to be an accepted treatment for persistent PTSD, and suggested it was reasonable to try other medications. Dr De Felice did not make the same recommendation with the same force. His view was that psychotherapy is the primary treatment for PTSD, together with symptomatic treatment of other symptoms. Not surprisingly, none of the psychiatrists express any firm view as to the efficacy of such pharmacotherapy. Dr De Felice described Ms Wreford's approach as 'fair enough'. Ms Wreford has applied herself to psychological therapy, as recommended with Ms Connolly, over a long period of time. She has made some slow progress. Her objections to pharmacotherapy are based upon her prior experience with drugs of the same family. There was no suggestion that these type of side effects experienced by Ms Wreford did not occur or were fanciful or unreasonable. The evidence does not support a finding that a recommended medication would significantly improve her condition in a particular way, only that a trial of medication with psychotherapy is recommended.
9. Whilst it might be that Ms Wreford would be wise to attempt a trial of one or more further medications as recommended by her treating psychiatrist, I cannot find that given her past experience, and her involvement in psychotherapy, that her refusal at present to take such medication is unreasonable or that such medication in her case would produce significant improvement. Therefore, there is no failure on her part to mitigate her loss as alleged.
10. There remains an issue between Dr Goodheart, Ms Vidovich, and to an extent Dr Jenkins, of the origin of Ms Wreford's cognitive symptoms. I accept that, consistent with the severity of her injuries, her low blood pressure at the time of admission to RPH emergency department, and Dr Goodheart's opinion it is more likely than not that there was some hypoxic brain injury. Dr Goodheart's hypothesis, however, is weakened by the differences between Ms Wreford's subjective reporting of symptoms and the results of Ms Vidovich's testing of her neuropsychological functioning. Whilst Ms Wreford claims 'memory problems', the testing reveals that her ability to remember new information is intact. One problem seems to be Ms Wreford's perception of her abilities to perform the tests. Her catastrophic manner of expression reflects her thought patterns, presumably. For example, she recounted that her cognitive problems started 'from the very beginning' to Dr Tay, however there is no evidence of complaint to Dr O'Mahony of such symptoms until months after the accident. As I have noted elsewhere, I do not consider Ms Wreford to be a reliable historian, a view which is also expressed by a number of those who spent time with her for the purposes of psychological and psychiatric reports.
11. I accept Ms Vidovich's view, which is supported by Dr Edwards-Smith, Dr Tay and Dr Jenkins, that the majority of Ms Wreford's cognitive symptoms are the result of her psychological status. I do not reject the proposition that there may have been a component of organic brain injury, because of her thoracic injury, low blood pressure and likely hypoxic state immediately after the accident. But I accept Dr Jenkins' assessment that it would have been a mild one and that the condition had improved. Overall, my view is that the disabling condition is psychiatric and psychological at the present time. This is an indication of a better long-term prognosis as psychiatric and psychological conditions are treatable in a way that organic brain injuries are not. However, as remarked upon by Ms Connolly, progress has been slow.
12. I accept that Ms Wreford has undergone the treatments that have been described, the costs of which have been met by the insurers to date, and I accept that she has ongoing treatment needs, due to the accident.

1. A large number of financial documents were tendered as part of Ms Wreford's case, comprising:
   1. PAYG payment documents from Burswood International Resort Casino.
   2. Payments 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.
2. This last document was a request for a sixth month period of reduced hours, due to illness.
3. 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 Ms Wreford 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.
4. None of the financial records were controversial. Ms Wreford'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. This document was tendered as exhibit 36. A copy of the table is set out below:

Earnings from Burswood International Resort Casino

1. The figures show that, after the first two years of her employment at the Casino, Ms Wreford reduced her hours, and significantly in 2013. The last year includes the 'reduced hour agreement', from February 2013.
2. In a letter of 30 November 2012 to Ms Wreford from the Human Resources Manager at the Casino, is an invitation to a meeting on 4 December 2012. This is described as an investigation meeting, includes a confidentiality requirement, and advised her that counselling and assistance were available. Ms Wreford's evidence was that this meeting was at a time that her bullying difficulties had come to the attention of her employer. The letter makes no direct reference to the purpose of the meeting.
3. Ms Wreford's evidence was that the individual who caused her problems started targeting her in 2007. She said that she never made a formal complaint. She attempted to avoid the individual. From the 15 September 2008 to the 16 August 2010 her evidence was that she worked in a 'bracket' which allowed for between 20 and 48 hours per fortnight, plus overtime. She reduced her hours thereafter in 2010 to the lower bracket of 16 to 32 hours per week. She said that in 2012, her anxiety levels caused her to seek treatment, and subsequently reduce her hours to one shift per week for six months. This is reflected in the document signed in February 2013. She attended the meeting to which she had been invited, in December 2012.
4. The impression given in her presentation of this evidence was that Ms Wreford attributed all her anxiety and the reduction of her hours to the bullying at work. There are no references to bullying in the documents from the practice of Dr O'Mahony. The consultation notes tendered by Ms Wreford only commence from 2 July 2013. There are, however, records of the prescriptions written by that practice, which were tendered as part of the bundle. They show scripts in 2012, relevantly, for Pristiq, an antidepressant in the SSRI family, Valium, and Avanza, a tetracyclic antidepressant. The only scripts in 2013, and prior to the accident, are dated 21 March 2013, for Panadeine Forte and Lactocur.
5. The records of the Reynolds Road Medical Centre contain notes from an attendance on Dr Lo on 24 October 2012 which read:

suffer anxiety five years under control, from trauma with operation, last seven month not coping well, using wine too much, endep not helped, anxious bully at work not back to work, do not want to take alcohol either, called locum given Valium used 5 ml 1 TDS and helped, aware can be addictive.

pristiq drowsy suicidal gain weight ended up stop it, anxiety find valium helps, now taking one tab per day keen to see Bentley Hospital for psychiatric appointment, on further RX, need valium to get her through Christmas, explained valium addictive and should use PRN only.

1. At this point the referral letter to Bentley Hospital was printed.
2. On 5 February 2013, Dr Lo again noted:

tiredness, eye problems, not able to work full hours, happy to minimum hours for the next six months, need medical certificate, intermittent Valium coping, last script around two months ago, reason for contact anxiety, tiredness, right recurrent vitreous haemorrhage.

1. In these notes, there is one reference to bullying at work, quoted above, and one reference in the Bentley notes 'feels stressed and bullied', amongst much other detail. By contrast, Dr Lo notes that Ms Wreford mentioned Valium at every consultation.
2. Weighing all this information, I cannot accept that Ms Wreford's anxiety was solely due to bullying or that this was the only or main reason for her reduced hours from February 2013. Therefore, it does not follow that the removal of the bullying, if that had indeed occurred, would ensure Ms Wreford would be able to return to work full-time.
3. There is no medical evidence to support a conclusion that her anxiety would entirely abate in such circumstances. The 'certificate' in June 2013 in my view carries little weight. There are a number of references to long standing anxiety over many years, and also to Ms Wreford complaining of difficulty with her eyes at work. The presentation at Bentley Hospital from the notes, gives a strong impression of a woman in generalised crisis.
4. Reference has already been previously made to the certificate printed by Ms Wreford in relation to her studies in 2012/2013. Her curriculum vitae, tendered in evidence, details her early work history and her experience in the IT and management areas, as she described in her evidence.
5. Evidence was called from Ms Rosa McCartney. Ms Cartney is an occupational rehabilitation consultant, and managing director of a company called Stepping Ahead. She assists in returning people back to the workforce after an injury, working with medical practitioners, employers and insurance companies to restore workers to occupations within their capacity. She also researches positions available to people who have suffered injury in the labour market and identifies realistic positions for such people. In effect, she is engaged in vocational assessment making recommendations in the current job market. Her report of 1 November 2017 was tendered in evidence.
6. She had been provided with all the previous medical reports, Ms Wreford's CV, and was requested to provide details of roles and pay rates for positions in the information technology (IT) and web development area. She was aware of the web design course completed by Ms Wreford. In her report, she set out a number of positions, which she identified on the 31 October 2017, for web designers and information technology managers or consultants. In an appendix, she set out a list of job vacancies found in the IT and web development design area. Salaries varied from $55,000 a year to over $100,000 a year in these various positions.
7. In evidence, Ms McCartney accepted that she did not have the course details for Ms Wreford's studies, only the one page document 'saying that she had been enrolled'. She said she had been provided with no information other than that document. She said that online courses usually required students to meet certain standards, and she had done online training herself. Proof was required for the training company that the requirements had been completed and then they would forward a certificate to print. Apart from Ms Wreford's CV and medical reports, Ms McCartney had no other information on her work history and experience.
8. She agreed that some of the jobs identified in her report required years of experience. She said referees would generally be checked. She agreed that one job required an engineering degree, another required an online portfolio with examples of work. Others specified years of web development experience. She said that a 'consultant' would be engaged in liaising with clients and looking to their needs in addition to web design and software design. She agreed that the operating systems and programmes in Ms Wreford's CV had changed since those years. Ms Wreford would need to re-educate herself to get back into the industry. She agreed that it was necessary to constantly keep up to date in that area. She believed that the web design course was that step and said that she might be able to get a position at a lower level in IT support. Her past experience would be beneficial for the underlying principles and would stand her in good stead. She could then increase her skills with courses and gain experience.
9. Ms McCartney was not asked to engage in her usual role as an occupation rehabilitation consultant.

1. Ms Wreford will be 51 on 21 December 2018. Her life expectancy is 88 years. She has not worked since the accident. By reason of her injuries, she has significant residual disabilities, particularly from her orthopaedic injury, her ophthalmic condition and the PTSD which developed subsequent to these injuries. The disabilities are ongoing. The full details have been elaborated earlier in these reasons.
2. From a physical point of view, she has suffered a loss of fitness, and has therefore lost the ability to enjoy athletic activities that she previously engaged in, as well as general activities, due to her shortage of breath, thoracic pain, and weakness in her left shoulder. On top of that, her vision is impaired and the future of her vision is uncertain. Currently, her most incapacitating injury is psychological: PTSD and anxiety. Whilst her anxiety prior to the accident had curtailed her ability to work, and her social interactions, the effects of the accident on her sense of self-worth, her interest in social and other activities have been significant. In addition, she is conscious of her scarring and orthopaedic deformity.
3. I accept, on the evidence of all the medical experts, that at the time of trial Ms Wreford was unfit for any employment. Dr Tay considered her prognosis for a return to work to be poor due to her PTSD. Ms Vidovich said she was unfit for any employment without intensive psychotherapy. Her treating psychologist, Ms Connolly said she had made limited gains from treatment for PTSD, but that the prognosis for her adjustment disorder was better.
4. Given her age, personality style and these opinions, I find that realistically her prospects of significant employment in the future are very limited. Her cognitive and psychological difficulties currently preclude her from engaging in consistent further education or training.
5. In the absence of any evidence that there was suitable employment for her with these disabilities, I find that Ms Wreford has effectively no residual earning capacity.
6. At common law, general damages were awarded to a person for pain and suffering, loss of amenities of life, loss of enjoyment, curtailment of expectation of life and bodily or mental harm. This is the definition of non-pecuniary loss now contained in s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. That legislation imposes restrictions on the awarding of damages in respect of a bodily injury to a person directly caused by, or by the driving of, a motor vehicle: s 3A. Section 3C of that Act requires that the amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded: s 3A(2).
7. As from 1 July 2018, that maximum amount is $418,000. The legislation also proscribes that the maximum amount may only be awarded in the most extreme cases. If an award is assessed to be below $21,500, as from 1 July 2018, no damages are to be awarded for non-pecuniary loss. Section 3C(5) provides that between the minimum amount, called Amount B and Amount C, currently $63,500, the amount of damages to be awarded is the excess of the amount assessed over Amount B.
8. Taking into consideration the totality of Ms Wreford's injuries and the effects upon her, bearing in mind that there is no suggestion of any loss of expectation of life, and considering the maximum amount at $418,000 I assess the non-pecuniary loss in the sum of $125,000. As this exceeds Amount C, no adjustment is required.

1. Damages are awarded for loss of earning capacity, not loss of earnings. In determining such losses, it is necessary to have regard to established facts from the past and the possibilities of future events, to determine the loss that flows from that loss of capacity: Medlin v SGIC [1995] HCA 5; (1995) 182 CLR 1, 19. It is an assessment of what a plaintiff was likely to have been engaged in, but for the injuries suffered and the likelihood of securing such employment. It is not an exact science. This requires a court to evaluate the degree of probability of a future of hypothetical event. Unless a chance is so low as to be speculative or so high as to be practically certain, the court will take that chance into account: Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.
2. Ms Wreford claimed past loss of earnings on the basis that, subsequent to 5 June 2013, she was fit to return to her normal duties at the Casino as a croupier. It was asserted that she would have returned to working 16 hours a week plus 10 hours of overtime, resulting in wages calculated to range between $620 - $650 per week net. On the evidence, Ms Wreford had taken no steps prior to the accident to put such an intention into practice. Damages were claimed on this basis at slightly increasing rates for 2 1/2 years. I am not convinced that this is the appropriate manner in which to assess her past loss of earnings. She had not earned income at this rate since the financial year ending June 2009. Her earnings had further reduced over the period from the financial year ending 2010 to the year ending 2013.
3. I have rejected the proposition that her reduced working hours were due only to bullying and placed little weight on Dr Lo's note of 5 June 2013. In my view, past history is a more reliable guide to her earning capacity than Ms Wreford's now stated views. I propose to assess past losses on the basis of the history. I will start with an average of her earnings for the financial years ending 2010 through to 2013. I have concluded that the way in which she had arranged her hours over this extended period suited her. Ms Wreford said as much in evidence. I accept that she had entered a temporary work arrangement to reduce her hours in February 2013 prior to the accident, because of her anxiety. I consider that the fairest guide is to take an average over the prior four years. This results in net weekly earnings of $370 from her employment at the Casino.
4. In addition to earnings from the Casino, it was claimed that Ms Wreford would have earned income from part-time web design work. I do not accept that Ms Wreford was in a position to earn money in this way at the time of the accident. For reasons given above, I do not accept that the 'certificate' produced was an indication she had completed any training that would be commercially acceptable. Ms Wreford had past experience, but at least 10 years earlier. The amount claimed for this work was modest, but I consider it to be speculative.
5. From 1 January 2016, damages were claimed on the basis that Ms Wreford would have entered the workforce in an entry level IT/web design positon, earning no less than $700 net per week. I am not persuaded that this is what would have occurred, given her age, lack of qualifications or recent experience. I consider that the likelihood of her securing such employment to be remote. At best, Ms Wreford has lost the opportunity to pursue her studies, and perhaps thereafter either enter into the workforce in a different capacity, or to set up her own business. It was her expressed intention and preference to set up her own business. No realistic assessment can be made, on the evidence, either of the likelihood of her success in such an endeavour or the amount that she would have earned. Accordingly, I consider that damages can only be properly based on her past earning capacity, from the accident until judgment, plus a modest sum to reflect the lost opportunity to retrain and possibly pursue IT and web design.
6. From the date of the accident, to 11 December 2018 is 286 weeks. Accordingly, the past loss, at the rate of $370 per week, is $105,820 net. It has recently been brought to my attention that to Ms Wreford, the Insurance Commission (for Mr Lyle) had advanced $13,610.

Interest on past earnings, is $(105,820 - 13,610) x 3% x 5.5 years = $15,215.

1. Superannuation on past economic loss was claimed at 9%, reduced by 15% (pursuant to Jongen v CSR Ltd) to take account of management fees and taxation. Over 286 weeks, the gross total is agreed to be $121,000.

Interest on this sum at 3% over a period of 5.5 years amounts to $1,527.

1. Contingencies can be applied to past and future loss of earnings, to reflect the usual uncertainties in life and any matters known to be relevant to an individual. As I have adopted Ms Wreford's average earnings over four previous years as the basis for calculations, I do not propose to make any further deduction, as her moderated part-time hours themselves reflect relevant conditions in her case.

1. Future losses were claimed on the basis that, from the end of 2017, Ms Wreford would have graduated to the position of an IT manager earning $99,570 gross per annum for a period of two years and thereafter at the same rate until the age of 70.
2. I am of the view that it is speculative to suggest that Ms Wreford would have taken up a full-time position as an IT manager in 2018. As at the date of the accident, she did not have the qualifications or the experience. She also had a history of vulnerability to anxiety, and had taken minimal, if any, steps to improve her qualifications. There was no evidence adduced of the appropriate training she could undertake, its duration or requirements. Ms McCarthy did not assist, as she had not been briefed to chart a course for a person to re-enter the workforce in IT from Ms Wreford's actual pre-accident position or assess her abilities to do this. Ms Wreford in 2018 was 50 and had been out of the industry since 2002.
3. I accept that when Ms Wreford first commenced her employment at the Casino, she had the care of three young children, and endeavoured to arrange her working hours around her commitments to the children. At the time of trial, but for the accident, she would have been in a position to work as she chose without any restrictions on her hours caused by duties to her sons. Ms Wreford had never worked full-time at the Casino. There was no evidence of the hours worked or the salary paid to a full-time employee at the Casino. An excerpt from the enterprise agreement applicable to the Crown Casino was tendered (exhibit 22). This shows that the maximum hours for a part-time employee was 76 hours in a fortnight, and the evidence was that there was available overtime. This provides no reliable basis upon which to assess future loss of earning capacity in the alternative to that claimed by counsel for Ms Wreford. Ms Wreford has undoubtedly lost her capacity to earn at the Casino or elsewhere. I accept that it is likely she would have increased her hours of work at some point.
4. Counsel for Ms Wreford accepted that his calculations should be reduced by 30%, for contingencies, and due to her vision problems, which would have been relevant to her earning capacity without the accident. In relation to contingencies for future earning capacity, a deduction must reflect the 'usual' contingencies and these specific factors personal to Ms Wreford, her anxiety and ophthalmic problems, which posed a real risk of periods of unemployment in any event.
5. There was no evidence of age at which Ms Wreford intended to retire. Counsel for Ms Wreford took the retirement age as 70. Given her pre-existing health problems, I consider that to be most unlikely.
6. Counsel for Ms Wreford calculated the future loss of earning capacity (as an IT manager to the age of 70, deducting 30%) to be $647,648. I reject this approach.
7. Accordingly, bearing in mind Ms Wreford's past experience and long term employment at the Casino, and her stated intention to requalify in the IT field and web design field, and accepting that she had lost that prospect by reason of her injuries, I have determined that the proper way to reflect her future losses is by calculating continued part-time employment earnings at the Casino, plus an award for the loss of the opportunity to change careers which she had at the time of the accident.
8. 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.
9. 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:

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:

1. 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

1. 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.

1. 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.

1. The evidence shows that Ms Wreford will require visits to her general practitioner on a regular basis. Monthly is not inappropriate.
2. 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.
3. Ms Wreford will need to be reviewed by her ophthalmologist every quarter, at $90 per consultation. $6.92 x 791.8 = $5,479.
4. 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.
5. 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.
6. The sum claimed was $18,000. This is appropriate, with credit to be given for any relevant payments made in the interim.
7. 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.

1. 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.
2. 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.
3. 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).
4. 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.
5. 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.
6. 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.

1. 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.
2. Further, since trial, Ms Wreford has paid an agreed additional $2,490 in out of pocket expenses.

1. 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.