WREFORD -v- LYLE [No 3] [2021] WASCA 20 (11 February 2021)

1. As can be seen from this image, on the west side of the Tate Street intersection is a butcher shop named Clayton's. The carpark to the shop has exits onto both Mill Point Road and Tate Street.
2. Ms Wreford was cycling eastbound on the footpath of Mill Point Road on the southern side of Mill Point Road (i.e. against the westbound traffic on the road) and was approaching the exit from Clayton's carpark onto Mill Point Road. Mr Lyle was driving his car in the carpark, having just visited the shop, and was intending to use the Mill Point Road exit to make a right‑hand turn onto Mill Point Road.
3. Mr Lyle drove his car to the Mill Point Road exit and stopped on the footpath to check for oncoming traffic. At this point, Ms Wreford approached Mr Lyle's car and stopped on its left‑hand (i.e. passenger) side, as the car was blocking her path. Mr Lyle did not see Ms Wreford.
4. Ms Wreford, wanting to continue cycling eastbound along Mill Point Road, decided to move her bicycle onto the cycle lane in front of Mr Lyle's stationary car and cycle around the front of the car. Mr Lyle had still not seen Ms Wreford by the time she reached the front of his car, and, at that moment, Mr Lyle pulled out onto Mill Point Road to make his right‑hand turn. As a consequence, Ms Wreford was struck and run over by the car.
5. It is appropriate to commence with the statutory context.

1. The general principles concerning liability for harm caused by the fault of road users, and in particular in relation to contributory negligence, are to be found in the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) and Civil Liability Act 2002 (WA) (Civil Liability Act).[4]
2. The Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 provides that where a court is satisfied that a plaintiff is guilty of contributory negligence it shall reduce the damages recoverable 'to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff'.[5]
3. Section 5K of the Civil Liability Act prescribes how contributory negligence is to be determined in such a case:

5K. Standard of contributory negligence

(1) The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose -

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

1. The 'applicable principles' referred to in s 5K(1) are those found in s 5B of the Civil Liability Act:

5B. General principles

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

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

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

1. Thus, the standard of care for contributory negligence is the same as it is for negligence itself.[6] In that context, of course, contributory negligence of a plaintiff is to be assessed against the risk of harm to himself or herself rather than the risk of harm to others.[7]

1. It was not in dispute that Ms Wreford suffered several significant injuries including broken ribs, a broken shoulder, a broken collarbone and bilateral pneumothoraces (collapsed lungs).[8]
2. Mr Lyle accepted liability for negligence in failing to avoid the collision. The learned trial judge also found that he was negligent in failing to keep a proper look out.[9] In that regard, her Honour accepted that Mr Lyle had completely failed to see Ms Wreford, who was there to be seen.[10]
3. Mr Lyle, however, pleaded that the accident was caused, or contributed to, by Ms Wreford. The relevant particular of contributory negligence the focus of attention at trial was that Ms Wreford had moved her bicycle in front of Mr Lyle's car when it was unsafe to do so.[11]
4. There was no dispute, at trial or on appeal, that Ms Wreford rode her bicycle in front of Mr Lyle's car.[12] Accordingly, whether Ms Wreford was guilty of contributory negligence depended upon whether she had unreasonably exposed herself to a foreseeable and not insignificant risk of harm by riding in front of the car. This, of course, required the learned trial judge to make findings in relation to the manner in which the accident occurred.[13]
5. In addition to the issue of contributory negligence, Mr Lyle put in issue the extent of Ms Wreford's injuries, including by alleging that her injuries were caused or contributed by pre‑existing psychological and ophthalmic conditions, and that she had failed to mitigate her loss by unreasonably refusing to take medication to ameliorate her psychological symptoms.[14]
6. Thus, the main issues for determination at trial were:[15]

(a) whether Ms Wreford was guilty of contributory negligence in moving her bicycle and herself around to the front of Mr Lyle's car;

(c) whether Ms Wreford suffered from a significant psychological condition or ophthalmic condition prior to the accident;

(d) the effect of any pre‑existing conditions suffered by Ms Wreford;

(e) whether Ms Wreford's refusal to take recommended medications had contributed to her psychological condition;

(f) whether Ms Wreford's refusal to take recommended medications amounted to a failure to mitigate her loss;[16] and

(g) whether Ms Wreford had a residual earning capacity, and if so, to what extent.

1. Before turning to the learned trial judge's findings in relation to these issues, the evidence in relation to the circumstances of the accident may be briefly summarised.

1. Evidence in relation to the accident was given by Ms Wreford, Mr Lyle and an independent witness, Mr Philip Brierley.[17] There was no formal police report.[18]
2. Ms Wreford gave evidence that, as she was approaching the traffic lights at Douglas Avenue, she 'saw a 4‑wheel drive at the exit on - at the Clayton's butcher shop driveway, blocking the pathway'.[19] She gave evidence that the driver (clearly Mr Lyle) 'did not move his head once'[20] and that she waited at the side of the car for a considerable period of time. In that regard, Ms Wreford maintained that the traffic lights changed three times while she waited and that there was quite a lot of traffic.[21]
3. Ms Wreford gave evidence that a white car commenced to move from the controlled intersection of Mill Point Road and Douglas Avenue, in a westerly direction along Mill Point Road.[22] It was at this point that she decided to ride her bicycle in front of Mr Lyle's car.
4. Ms Wreford's explanation for doing so was as follows:[23]

I worked out that my body would be - wouldn't interfere with the oncoming - I wouldn't be putting myself in any danger so I put my bike onto the bike lane, knowing that he couldn't make it because there was that car that was starting its progression. It's the start of the progression. And I knew I would have had enough time to just whizz around his car - well, I - anyway, I put my bike first of all on the bike lane, not in front of his bull bar yet until I saw that oncoming car. That's when I took a forward motion to - and I was to the left - just to the left of his bull bar. He had nudged forward at that stage and at that stage he had hit me but not enough to make me fall.

1. Ms Wreford then gave evidence as to what she said happened next. She said:[24]

I just swayed to my left and my pedal grazed my foot and my left foot balanced me by - I took it off the pedal to the ground to stop me from falling. He had - I thought, 'Okay. Now he knows he's hit me and I'm going to go tell him off because he had stopped at this point - that - that point that I had enough time to get upright, he had stopped because that oncoming car had made him stop.

...

I just said shit, the effing idiot, if he had knocked me and he had - and if he had turned his head to see that there was oncoming traffic, he would have seen me and he would have known that - if he hadn't hit me I would have easily made it around his bull bar. Easy, but he had hit me and then realised he couldn't make it. So he - he stopped and I thought - when he stopped I thought okay, he knows that I'm here. But what happened, once I've got upright I went - I looked behind me and my back wheel was only that far away from the kerb. So I pushed - I started to push back with my left leg and during that time bang, he floored it. Because at that stage, the first car that I'd hoped - that was oncoming that could see me, obviously had passed by then. So he had floored it before the next car came along. Then I thought, 'Oh, my god, you've got to be kidding'. And then the car is - his car proceeded to go on top of me and then all I could see was the front tyre go over my head and my helmet had loosened up and had gone with the motion of the tyre. And I thought - and then it stopped. The tyre then stopped. I could see the tyre stop in front of me and I thought, 'Oh, my god, I'm alive'. And then I thought, 'This is a nightmare, he should have seen me but I'm alive'. And to my horror the wheel started to reverse and back over my head.

1. Mr Lyle gave evidence that traffic was light at the time of the accident.[25] He said that the traffic lights at the Mill Point Road and Douglas Avenue intersection were red, with one car stopped at the red light.[26] He said that he pulled out onto Mill Point Road because the traffic was clear at the time.[27] He gave evidence that he did not see Ms Wreford.[28]
2. As to the circumstances of the accident Mr Lyle said:[29]

As I pulled out, I got probably half way across the lane on my side and I heard a noise under my car and I thought something had fallen off - off the bottom of my car or something had been on the road in the darkness that I hadn't seen. Proceeded forward. Well, I looked in my rear vision mirror, I couldn't see anything. Heard somebody yell out, moved forward and stopped and it was then that I looked in my side mirror and noticed that somebody was down on the road. I jumped out of my car, rushed to where the person was laying down on the road.

1. Mr Lyle was cross‑examined as to whether he stopped after entering Mill Point Road because of traffic entering from Tate Street. He emphatically denied that he had done so.[30]
2. It was then put to Mr Lyle that he had stopped, in the westbound lane of Mill Point Road, after he thought he had run over something. That cross‑examination included the following:[31]

And I suggest to you that you proceeded halfway into the intersection - or sorry halfway into the lane for westbound traffic and you stopped again?---No, that didn't happen either.

I understood you - your evidence to be that you thought you had run over a crate and that you stopped?---A crate or something had torn off the bottom of my car.

Yes. And you stopped?---No. No, I didn't stop. No.

You didn't stop?---No. If it's a crate I just thought, 'Well, nothing I can do about that. I'll get to the other side and I'll see what it was'.

Mr Lyle, isn't it the position that after you heard whatever it was under your car ‑ ‑ ‑?---Mm hmm.

‑ ‑ ‑ that you did stop?---I don't remember stopping at all.

You don't remember stopping?---No, I just remember going all the way across to the other side.

Do you remember hearing someone yelling?---I did hear somebody yelling, yes.

And isn't that the cue that led to you stopping halfway across?---No, it didn't make me stop. I just thought someone was yelling out to me from the - the - from the footpath.

I'm sorry, could you repeat that?---I thought someone was yelling at me from the footpath. I didn't even know that they were yelling at me, but I heard someone yell.

But you say that didn't make you stop?---No, that didn't make me stop.

And I suggest to you that you did stop and that you looked both ways. No?---No. I looked in my rear vision mirror.

You looked in your rear vision mirror?---Yeah.

What did you see in your rear vision mirror?---Nothing. Apart from Clayton's Butchery and - well, the driveway.

1. It was not put to Mr Lyle (as Ms Wreford suggested in her evidence) that he had, at any time, reversed his car.[32]
2. The other witness to the accident, Mr Brierley, was driving eastbound on Mill Point Road approaching the traffic lights at the Douglas Avenue intersection. The traffic lights were red on his approach, so Mr Brierley stopped at the red light. He gave evidence that something caught his attention.[33]
3. He gave the following evidence:[34]

I turned to my right and I saw a lady on a bicycle, side on to a white four by four, starting to go underneath the bonnet of the white four by four. She was slowly underneath it, and he stopped, obviously hearing a noise. By this point, she was at - tilted to one side, I'd say about 45 degrees, so his view - he wouldn't have been able to see her over the top of the bonnet. He then moved forward again and - and she was pulled further under the vehicle, and he again stopped. He then moved forward, across the road, and the lady was pulled with him under the car and - and he pulled in at that point. And it's at that point I got out of the car to - to call 000 and put my hazard warning lights on.

1. Mr Brierley gave evidence that the 'white four by four' (Mr Lyle's car) ended up behind his car in the eastbound lane.[35] He said that he did not see the 4WD reverse.[36]
2. Mr Brierley also gave evidence that he did not see any traffic travelling in the opposite direction to him (i.e. in the westbound lane of Mill Point Road).[37]

Primary reasons as to the circumstances of the accident and contributory negligence

1. In reaching her ultimate findings in relation to contributory negligence, the learned trial judge made a number of primary findings of fact concerning the circumstances of the accident.
2. In doing so, her Honour made a number of findings as to the reliability and credibility of each of the witnesses.
3. In particular, her Honour found that she was unable to accept Ms Wreford as a reliable witness in relation to the circumstances of the accident. In that regard the learned trial judge said that while Ms Wreford gave confident evidence, and was utterly certain of what she believed to have occurred, she had made no allowance for her own trauma on the day of the accident or subsequently (which her Honour found would undoubtedly have played a part in Ms Wreford's ability accurately to recall and sequence events). In her Honour's assessment, much of Ms Wreford's account was a reconstruction of events in her own mind, with a clear aim of absolving herself from any responsibility for the accident.[38]
4. By contrast, the learned trial judge found that both Mr Lyle and Mr Brierley were careful witnesses.[39] In relation to Mr Lyle her Honour added that he was measured and betrayed no emotion.[40] Her Honour also found that Mr Lyle's and Mr Brierley's evidence was consistent in significant respects, including that the traffic on Mill Point Road at the relevant time was light, and that the lights governing traffic along that road were red at the time of the accident.[41]
5. On the basis of the witnesses' evidence the learned trial judge made the following primary findings of fact.
6. First, her Honour found that there was no doubt that Ms Wreford rode her bicycle in front of Mr Lyle's car.[42]
7. Secondly, her Honour did not accept Ms Wreford's account as to the amount of time that she had waited beside Mr Lyle's car before moving in front of it. That evidence, her Honour found, was contrary to Mr Lyle's evidence and Mr Brierley's evidence (which her Honour evidently accepted) as to the traffic conditions, the changing of the lights, and the events that happened.[43]
8. Thirdly, her Honour found that at the time of the accident there was nothing to prevent Mr Lyle's path onto Mill Point Road.[44]
9. Fourthly, her Honour found that Ms Wreford, on her own account, knew that Mr Lyle was intending to pull out and that she believed that Mr Lyle had not seen her.[45]
10. Having regard to these primary findings her Honour reached the following conclusions:[46]

In the context of a 4WD which was, to Ms Wreford's knowledge, intent on turning right into Mill Point Road, there was, in my view, a foreseeable risk that the 4WD might move forward. If Ms Wreford placed herself in front of the 4WD, the risk was she would be struck by it and injured.

The risk could not be regarded as insignificant. Firstly, the risk that this might occur was, on Ms Wreford's evidence, precisely what she was assessing. In my view the risk was obvious, and would be so to any cyclist in that position. Secondly, any consequences would not be insignificant given the size and weight of a 4WD. The question then is what, in the circumstances, a reasonable person would have done to take precautions against that risk.

In terms of s 5B(2), there is no doubt that harm would result if care was not taken in this situation and that such harm was likely to be serious to Ms Wreford. The obvious precaution was to stay on the pavement and not move in front of the vehicle at all. This was not a difficult or burdensome thing to do. Ms Wreford gave a very detailed account of the time of which she said that she waited, what she did to attract Mr Lyle's attention and the precise movement of the vehicle and her bicycle. I do not accept the accuracy of that account. In any event the time that she waited is immaterial to the assessment of the risk and her conduct.

Ms Wreford does not accept that she took a calculated risk. She asserts that she was acting carefully, because the 'other vehicle', would prevent Mr Lyle's 4WD moving out. Even if there were other traffic, that would not, in my assessment, make her manoeuvre free of risk. However, I do not accept her evidence that there was such another vehicle as already explained. It was Ms Wreford's duty to take care for her own safety. In my view, the risk of riding a push bike in front of a 4WD which was waiting to enter the road, is obvious. On her own account, she knew that the driver had not seen her. In my assessment, there was a significant risk that the driver had not seen her. Unless she had actually caught his attention, and he had clearly indicated an awareness of her presence, it was tantamount to reckless to move in front of the vehicle when she believed he was intending to turn right.

I find therefore that Ms Wreford made a serious error of judgment in riding her bicycle in front of Mr Lyle's 4WD when there was an obvious risk to her own safety. Her actions contributed directly to the accident by putting herself into that position and that accident caused her great harm.

I do not accept that the 4WD drove over her head and then reversed back and then drove over her head a second time. Ms Wreford is convinced that this is so, but there is no adequate evidence to support that assertion. The broken helmet produced does not lead inevitably to that conclusion. It is just as likely that the helmet smashed on impact with the road and may thereby have caused her scalp laceration.

It is necessary to apportion responsibility for the harm caused to Ms Wreford according to s 4 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act. Those provisions give no instruction as to how such an exercise is to be conducted. A commonly cited passage in relation to the apportionment exercise is found in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492:

The making of an apportionment as between plaintiff and a defendant of their respective shares in the responsibility for damage involves a comparison both of culpability, ie the degree of departure from the standard of care of a reasonable man and the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Limited [1953] UKHL 4; [1953] AC 663, 682.

The exercise of apportionment requires a judgment of what is just and equitable regarding the relative shares of responsibility of both the person harmed and the other party.

Mr Lyle's failure to see and avoid a collision with Ms Wreford is a significant departure from the standard of care of a person in charge of a vehicle. Ms Wreford was plainly there to be seen. Even if Ms Wreford had not stopped but sought to ride around Mr Lyle, she would have had to cause her bicycle to cross the small grass strip to get off the pavement and onto the bike path and could not have achieved that at any speed on the bicycle she was riding, (photograph exhibit 19). She would have been in his vision to the left and then closer to the vehicle before she was in front of the vehicle. It is perhaps understandable, given that he was looking for traffic at a distance along the Mill Point Road, how he might not have seen her, because a bicycle in that position would be unusual. However, that does not absolve him of his responsibility, which he accepts.

For her part, Ms Wreford's conduct was a significant departure from the standard of care of a reasonable cyclist in those circumstances. Whether she stopped or just sought to ride around the vehicle, the situation is effectively the same. In terms of damage, the driving of [a] 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. We pause to observe that while the learned trial judge did not accept that Mr Lyle drove over Ms Wreford's head and then reversed back and then drove over her head a second time, her Honour did not make any express finding as to whether Mr Lyle stopped his car after initially making contact with Ms Wreford. It will be recalled that Ms Wreford gave evidence that he did so, as did Mr Brierley. Mr Lyle's evidence was to the contrary. He had no memory of stopping at that point.
2. We will return to that issue later, although in this context it may immediately be observed that, on the facts as found by the learned trial judge, there was no suggestion that Mr Lyle was aware that he had struck Ms Wreford at any time prior to coming to a complete stop on the northern side of Mill Point Road. That is, Mr Lyle only became aware that he had collided with Ms Wreford after he had come to a complete stop.
3. We turn then to the learned trial judge's assessment of quantum.

1. The parties adduced a substantial body of evidence from medical and allied health experts in relation to Ms Wreford's injuries (including from psychiatrists, psychologists, an ophthalmologist, an orthopaedic surgeon, a neurologist and a physician). In addition, a number of witnesses gave evidence in relation to Ms Wreford's employment. Ms Wreford also gave evidence as to the effect that her injuries had on her capacities, her expenses associated with her care and other post‑accident lifestyle adjustments.[47]
2. It is not necessary, at this point, to set out that evidence in detail. Relevant aspects of it will be addressed in the context of the grounds of appeal.
3. It is sufficient to identify the following findings:

(a) Ms Wreford suffered from orthopaedic,[48] cosmetic,[49] ophthalmic,[50] and psychological (including post‑traumatic stress disorder)[51] injuries as a result of the accident;

(b) Ms Wreford had a pre‑existing ophthalmic condition which made her vulnerable to greater injury to her eyes, which should be reflected in the calculation of damages by a percentage reduction;[52]

(c) Ms Wreford suffered from anxiety prior to the motor vehicle accident, which made her more vulnerable to suffering from post‑traumatic stress disorder and could have made her post‑traumatic stress disorder more difficult to treat;[53]

(d) Ms Wreford's failure to take recommended medications would not have impacted significantly on her recovery;[54] and

(e) Ms Wreford did not fail to mitigate her loss by refusing to take recommended medications.[55]

1. The learned trial judge also found that it was more likely than not that Ms Wreford had suffered from some hypoxic brain injury. Nevertheless, her Honour found that, at the time of trial, Ms Wreford's disabling cognitive condition was psychiatric and psychological (rather than organic). As to this issue the learned trial judge's findings were as follows: [56]

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.

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.

1. The learned trial judge awarded damages in respect of Ms Wreford's earning capacity, both as to her past loss of earnings and her future earning capacity. That assessment necessarily required the learned trial judge to make findings in relation to Ms Wreford's work history and her pre‑accident earning capacity.
2. The learned trial judge summarised Ms Wreford's work history as follows.
3. Ms Wreford was educated to year 11 at high school and then obtained certificates in secretarial studies and bookkeeping in 1983. She worked at Coles from the age of 14, where she obtained full‑time employment after high school.[57]
4. Ms Wreford went on to work for a company in payroll systems and later moved to an accounting firm. She then worked in a superannuation brokerage company from 1991 and left in 1993, when she got married and moved to the UK. Before moving to the UK, Ms Wreford completed four months of a computer training course at TAFE and subsequently obtained employment in the UK involving computing skills.[58]
5. Ms Wreford and her husband returned to Perth in November of 1993 and set up a partnership in IT. Ms Wreford 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. Ms Wreford's 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.[59]
6. Ms Wreford and her husband separated in April 2002, later divorcing in September 2004.[60]
7. Ms Wreford and her (by that time) three sons moved to South Perth and in July 2006 she commenced work as a croupier‑dealer at the Burswood Casino on a part‑time basis.[61]
8. Ms Wreford has evidence that in 2007 she was the subject of bullying at work and thereafter reduced her working hours as a consequence.[62] While there was an issue at trial as to whether Ms Wreford's allegation of bullying was the sole reason for her gradual reduction in work hours (the learned trial judge found that it was not),[63] there is no doubt that from 2008 to 2013 (prior to the accident) Ms Wreford's work hours did gradually decrease.[64]
9. This can be seen in the following history of Ms Wreford's earnings (which was not in dispute):[65]

1. Ms Wreford also gave evidence that she intended to set up her own business in IT or seek employment in the IT industry. In this regard, Ms Wreford produced a certificate of completion of an online web design course from an entity called 'Excel in Business' dated 23 July 2013.[66]
2. On this basis the Plaintiff's Particulars of Damage at Trial dated 22 November 2017 (the Plaintiff's Particulars),[67] claimed that, but for the accident, Ms Wreford would, by 21 December 2017 (a month after the trial) have graduated to the position of IT manager earning $99,574 gross per annum, until age 70 years.[68]
3. The learned trial judge rejected this claim.
4. In relation to Ms Wreford's loss of past earnings, the learned trial judge assessed her losses on the basis of net weekly earnings of $370 from her employment at the casino. Her Honour reached that figure based on Ms Wreford's average net weekly earnings for the four years prior to the accident (the financial years ended 30 June 2010 to 30 June 2013).[69] Her Honour did not otherwise reduce the assessment of past loss of earnings on account of contingencies.[70]
5. In relation to Ms Wreford's loss of earning capacity into the future, the learned trial judge adopted a base line earnings rate based on 16 hours per week plus 10 hours overtime ($651.30 net), which her Honour increased to $769.23 to reflect potential increases in rates and hours over time. To this her Honour made deductions for future contingencies, which are addressed below.
6. Her Honour also added an additional sum of $20,000 to reflect Ms Wreford's lost opportunity to study IT or web design.
7. Based on her findings, the learned trial judge summarised her assessment of Ms Wreford's damages as follows:[71]

1. There are 20 grounds of appeal (some of which include separate sub‑grounds). The grounds of appeal are very lengthy (spanning 27 pages) and need not be set out in full.[72]
2. The grounds can be summarised as follows:

(a) ground 1 contends that the assessment of general damages was manifestly inadequate for the nature of the injuries the learned trial judge found to be suffered by Ms Wreford;[73]

(b) ground 2 contends that the learned trial judge erred in finding that the majority of Ms Wreford's cognitive symptoms are the result of a psychological condition rather than an organic brain injury;

(c) ground 3 contends that the learned trial judge erred in reducing the award of damages on the basis of Ms Wreford's pre‑existing ophthalmic condition;

(d) ground 4 contends that the learned trial judge erred in finding that Ms Wreford suffered from anxiety prior to the accident;[74]

(e) grounds 5 and 5C challenge the learned trial judge's finding that Ms Wreford was guilty of contributory negligence and that her damages should be reduced by 30%;

(f) ground 6 contends that an error occurred in the assessment of damages on the basis that Ms Wreford was denied the opportunity to be present during the trial and to speak to her counsel during that time;[75]

(g) ground 7 contends that the learned trial judge erred in rejecting Ms Wreford's assertion that Mr Lyle's car drove over her head, reversed back and then drove over her head a second time;

(h) ground 8 contends that the learned trial judge erred by failing to request further evidence, namely, material from a subpoenaed police file;[76]

(i) ground 9 contends that the learned trial judge erred in reducing Ms Wreford's damages for economic loss by reason of her pre‑existing anxiety and ophthalmic condition;[77]

(j) ground 10 contends that the learned trial judge erred by assessing Ms Wreford's past loss of earning capacity by reference to the 'lowest part of her working life';[78]

(k) ground 11 contends that the learned trial judge erred by calculating future loss of earning capacity by reference to Ms Wreford's 'lowest reduced past earning for the few years preceding the accident'.[79] Ground 11.1 also challenges the learned trial judge's assessment of future loss of earning capacity on the basis of a putative retirement age of 67 years;

(l) ground 12 contends that the learned trial judge erred in 'applying the [Order] 24A Offer' on the basis that the offer did not comply with the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court);[80]

(m) ground 13 challenges the award of damages for medical expenses and is broken into three parts. Ground 13A contends that the learned trial judge erred 'in applying the Slip Rule' in relation to the assessment of future medical expenses.[81] Ground 13B alleges that the learned trial judge erred in assessing future medical expenses on the basis that her counsel failed to provide the appropriate information regarding Ms Wreford's eye injury. Ground 13C challenges the learned trial judge's observation at Primary reasons [252], that it 'was agreed that the medical expenses to date had been met by the insurers';

(n) ground 14 contends that the learned trial judge erred in assessing future medical expenses by failing to consider relevant evidence;

(o) ground 15 contends that the learned trial judge erred by failing to award damages for past gratuitous services;

(p) ground 16 contends that the learned trial judge erred in assessing damages for future assistance on the basis that Ms Wreford's counsel at trial did not provide the court with sufficient evidence;

(q) ground 17 contends that the sum awarded for Ms Wreford's lost opportunity to retrain was manifestly inadequate;

(r) ground 18 contends that the sum awarded for future travelling expenses was manifestly inadequate;

(s) ground 19 contends that the learned trial judge erred by failing to make a determination as to how Ms Wreford's eye injuries were caused; and

(t) ground 20 contends that the learned trial judge erred by failing to consider expert evidence to the effect that Ms Wreford (a) will need eye surgery in the future, and (b) will possibly lose sight in both of her eyes.[82]

1. Ms Wreford was unrepresented in the appeal. She clearly prepared and presented the appeal with a great deal of thought and diligence. Notwithstanding those considerable efforts, it was apparent that, in a number of respects, Ms Wreford's conduct of the appeal proceeded upon a misunderstanding of a number of principles of law and the nature of an appeal generally.
2. In this regard, the following general observations can be made at the outset.
3. First, as will be clear from the above summary of the Primary reasons, it was necessary in this case for the learned trial judge to make a number of findings of fact by reference to competing bodies of evidence, including by reference to the credibility and reliability of the witnesses. It was, primarily, a matter for her Honour which evidence she accepted and which she rejected. In that regard, it is important to recognise that, while this Court is obliged to conduct a real review of the evidence at trial, the purpose of an appeal is the correction of error.
4. In a number of respects, Ms Wreford did not identify error on the part of the learned trial judge in making the findings that she did, so much as submit that her Honour ought to have made different findings. In that regard, it is not enough to submit that her Honour should have accepted certain evidence (or rejected other evidence) without demonstrating why her Honour was in error not to have done so. This is particularly the case in relation to findings that are likely to have been affected by the learned trial judge's advantage in having seen and heard the witnesses. This Court may not interfere with such findings unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'.[83]
5. Secondly, and relatedly, in a number of respects Ms Wreford's complaints in the appeal concerned the way in which her trial was conducted by her counsel rather than decisions made by the learned trial judge. Those complaints included allegations that significant evidence was omitted from the trial, that her trial counsel did not follow her instructions to tender certain documents and that she was wrongfully excluded from her trial. A number of these complaints were cast in terms that her trial counsel had engaged in unprofessional conduct.
6. In this context it must immediately be noted that there was no fresh or new evidence adduced in the appeal. Prior to the hearing of the appeal, Ms Wreford made a number of applications to this Court to adduce additional evidence in the appeal. Those applications were refused, for reasons that included (but were not limited to) the fact that Ms Wreford was prima facie bound (as against the respondent) by the conduct of her lawyers at trial.[84]
7. In so concluding, the court invoked the settled principle that a party is bound by the conduct of his or her case at trial. As the High Court said in University of Wollongong v Metwally [No 2]:[85]

It is elementary that a party is bound by the conduct of [their] case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against [them], to raise a new argument which, whether deliberately or by inadvertence, [they] failed to put during the hearing when [they] had and [sic] opportunity to do so.

1. This principle is, of course, directly applicable to the question as to whether additional evidence should be admitted in an appeal. The law is clear that it will only be in exceptional circumstances that evidence available, but not adduced, at trial will be admitted on appeal.
2. The principle applies with even more force in a case such as the present, where the appellant seeks to disturb findings made by the learned trial judge, or set aside a judgment, solely on the basis that his or her counsel at trial should have conducted the case differently.
3. Even in the court's criminal appellate jurisdiction, where a conviction may be set aside on the grounds that the conduct of counsel has resulted in a miscarriage of justice,[86] the general proposition remains 'that counsel's decisions bind the client, even when those decisions are made without, or are contrary to, instructions and even when those decisions involve errors of judgment or negligence'.[87]
4. That proposition applies with even more force in the court's appellate jurisdiction from the District Court in the latter's civil jurisdiction.[88] As we have already observed, if no additional evidence has been admitted in an appeal, this Court's powers are confined to the correction of error on the part of the trial judge. That is because the statutory provisions conferring the appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that the power is to be exercised for the correction of error.[89]
5. Thus, in the present appeal, it is only an error of law or fact on the part of the learned trial judge that can engage the court's appellate powers. In the absence of such an error, Ms Wreford's complaints as to the conduct of her case by her lawyers at trial (even if those complaints be justified), cannot enliven the court's power to set aside the learned trial judge's judgment.
6. Thirdly, in relation to the appeal from the assessment of damages, while the grounds of appeal challenge individual components of the learned trial judge's assessment, it must be recalled that ultimately an appeal court's concern is whether the total sum is outside the limits of a sound discretionary judgment. The assessment of damages for personal injuries in an action for negligence is not an exact science. The process of assessment 'must be governed by considerations of practical common sense in the context of the facts of the particular case'.[90] As the Privy Council observed in Paul v Rendell:[91]

The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for [them] if [they] had not been injured.

1. In this way, an assessment of damages for personal injury has many of the characteristics of a discretionary judgment.[92] For this reason an appellate court must not interfere with a trial judge's assessment of damages 'unless satisfied that he or she applied a wrong principle of law, misapprehended the facts or made a wholly erroneous characterisation of the plaintiff's case'.[93]
2. Beyond that, 'an appellate court is not justified in setting aside the trial judge's assessment on the ground that the damages are excessive or inadequate, unless the amount assessed is outside of the limits of what a sound discretionary judgment could reasonably adopt'.[94] Even where the appeal court concludes that the trial judge awarded too much or too little in relation to individual components of the award, the question is whether the total sum awarded is outside the limits of a sound discretionary judgment, and not whether some portion of that total sum standing alone would call for the court's intervention.[95]
3. This last principle is important in the present case because, in a number of respects, the learned trial judge was called upon to make necessarily imprecise estimations, including allowing claims made on Ms Wreford's behalf in the absence of evidence.[96] This meant that the learned trial judge was required, in assessing damages, to take a broad brush approach as to many of the issues. That reality underscores the need for appellate restraint in the analysis of the assessment of damages in the appeal.
4. We turn now to the grounds of appeal. Many of the grounds overlap and will be considered together.
5. It is convenient to commence with those grounds concerning the circumstances of the accident and the learned trial judge's finding of contributory negligence.

Circumstances of the accident / contributory negligence - grounds 5, 5C, 7 and 19

1. There are four grounds of appeal that concern the circumstances of the accident.
2. Ground 5 generally challenges the learned trial judge's finding that Ms Wreford was guilty of contributory negligence. Ground 5C makes the specific allegation that the learned trial judge erred in 'not allowing the Plaintiffs' Counsel ... to produce [Mr Lyle's] Affidavit'.[97] Ground 7 challenges a specific finding regarding the manner in which the accident occurred, namely her Honour's finding to the effect that she did not 'accept that [Mr Lyle] drove over [Ms Wreford's] head and then reversed back and then drove over her head a second time'.[98] It is convenient, in this context, to also address ground 19, which submits that her Honour erred in not finding, in effect, that Ms Wreford's eye injuries were caused by the car driving over her head.[99]
3. It must be said, at the outset, that it was not entirely clear from Ms Wreford's submissions precisely what her complaint was in relation to the circumstances of the accident, as they related to the finding of contributory negligence. The written submissions in relation to these grounds largely consisted of recitations of aspects of the evidence given by the witnesses to the accident (Ms Wreford, Mr Lyle and Mr Brierley) without a clear articulation of any error on the part of the learned trial judge.
4. At the hearing of the appeal, it became apparent that the gist of Ms Wreford's complaint in this context was that the learned trial judge ought to have found, in effect, that there were two accidents that took place (which Ms Wreford described as 'the first hit' and the 'second hit') and, in addition, that at some point in the course of the accident, Mr Lyle had reversed his car over Ms Wreford's head. The significance of this, Ms Wreford submitted, was that it demonstrated that Mr Lyle had the 'last opportunity' to avoid the 'second hit' (which Ms Wreford also described as the 'fatal hit').[100] Thus, so the argument was put, Ms Wreford could not be found guilty of contributory negligence.
5. So understood, Ms Wreford's challenge to the finding of contributory negligence suffers from a fundamental misconception as to the law. In particular, the 'last opportunity rule', which Ms Wreford sought to invoke in this context, does not form part of the law in this State.
6. The last opportunity rule was a common law doctrine developed by judges to weaken the harshness of the common law rule that contributory negligence was a complete defence.[101] At common law, a plaintiff 'was entitled to recover, despite his or her own negligence, if the defendant had the last opportunity of avoiding the accident but failed to do so due to negligence'.[102] The rule was, in effect, an 'all or nothing' exception to the 'all or nothing' common law defence of contributory negligence. For this reason, both the common law defence, and the 'last opportunity' exception, came in for much criticism for the unfair and unreasonable results that they produced.[103]
7. As a result, in the mid‑20th century both the common law defence of contributory negligence and the last opportunity rule were abolished in all Australian jurisdictions.[104] In this State that reform was achieved by s 4 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947. By that provision, Parliament abolished the complete defence of contributory negligence (and the last opportunity rule) and, in their place, conferred upon the courts the power to reduce damages 'to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff'.
8. Whether or not Mr Lyle had the 'last opportunity' to avoid the accident was therefore irrelevant to whether Ms Wreford's negligence contributed to the accident, such that there should be an apportionment of liability.
9. Ultimately, in the present case, the learned trial judge's finding that Ms Wreford had failed to take reasonable care for her own safety, and that that failure directly contributed to the accident was based upon (a) the fact that Ms Wreford deliberately rode her bicycle in front of Mr Lyle's car, when (b) she knew that Mr Lyle had not seen her. Neither of those essential facts was in dispute. Those facts alone provided a sufficient basis for finding that Ms Wreford's negligence contributed to the accident that caused the harm that she suffered. Those facts, and the correct inference to be drawn from them of contributory negligence, are also unaffected by Ms Wreford's allegation that there was a 'first hit' and a 'second hit'.
10. Nor, in all of the circumstances, could the allegation that there was a 'first hit' and a 'second hit' affect the learned trial judge's finding as to Mr Lyle's negligence. As we have noted above, there was no suggestion that Mr Lyle was aware that he had struck Ms Wreford until after he had come to a complete stop on the northern side of Mill Point Road. Mr Lyle's negligence was in moving his car into Mill Point Road without keeping a proper lookout so as to avoid colliding with Ms Wreford.
11. In those circumstances, whether Mr Lyle briefly 'stopped' when he had first collided with Ms Wreford before proceeding across Mill Point Road was, in our view, irrelevant to the assessment of his negligence. Mr Lyle described one continuous movement across Mill Point Road before coming to his final destination on the northern side of the road and while he did not recall stopping, he did recall someone yelling which caused him to look in his rear view mirror.
12. While Mr Brierley described Mr Lyle's car stopping after he first saw Ms Wreford's bicycle in front of the bonnet of the car,[105] it is clear from the context that Mr Brierley was describing a momentary pause in a single continuous accident in which, according to Mr Brierley, Mr Lyle 'wouldn't have been able to see her over the top of the bonnet'.
13. Mr Brierley, for example, gave the following evidence:[106]

And did you see her recover from that initial fall when the vehicle stopped?---There wasn't really time, I don't believe for her to recover. She was probably at 45 degrees and trying to hold her bike and then probably by the time she was about to try and get up he started moving again.

You had your window open. Did you call out anything when you saw the car start over again?---No, I - I was frozen. I don't know how better to describe it. Everything happened very slowly, but very quickly at the same time.

1. The learned trial judge accepted that both Mr Lyle and Mr Brierley were careful witnesses, whose evidence (unlike Ms Wreford's) her Honour evidently considered to be honest and reliable. Both Mr Lyle and Mr Brierley were describing the same events (over a very short period of time) from very different perspectives. Insofar as the circumstances of the accident were concerned, it was immaterial whether Mr Lyle stopped momentarily when he first collided with Ms Wreford (as Mr Brierley recalled) or whether (as Mr Lyle recalled) he simply looked in the rear vision mirror. On neither account of the accident was there a point at which Mr Lyle noticed or ought to have observed that Ms Wreford was underneath his vehicle before coming to a stop. Nor was such an allegation put to Mr Lyle in cross‑examination.
2. What was significant, and which was found as a fact by the learned trial judge, was that both Mr Lyle and Mr Brierley confirmed that the traffic on Mill Point Road was light and that the lights governing traffic along that road were red at the time of the accident.[107] That was significant because, contrary to Ms Wreford's evidence, the traffic did not prevent Mr Lyle moving forward at the time of the accident, so as to (arguably) justify her view that it was safe for her to move in front of his car.[108]
3. While Ms Wreford sought to challenge her Honour's finding that there was no oncoming traffic blocking Mr Lyle's path across Mill Point Road, in our view she has not demonstrated any error on the part of the learned trial judge in making that finding.
4. The only witness who described oncoming traffic was Ms Wreford. While her Honour did not consider that Ms Wreford was deliberately dishonest, she was unable to accept that Ms Wreford's account of the accident was reliable.[109] It was, in our view, clearly open to her Honour (who saw and heard the witnesses) to reach that conclusion and to prefer the evidence of Mr Lyle and Mr Brierley.
5. In this context, ground 5C makes the specific allegation that the learned trial judge erred in not allowing Ms Wreford's trial counsel 'to produce Mr Lyle's Affidavit'.[110]
6. This ground is also misconceived.
7. The document referred to in ground 5C as Mr Lyle's 'affidavit' was, in fact, a statement that Mr Lyle had made to the police after the accident (which statement had evidently been reduced to writing). In the course of cross‑examination, Mr Lyle was asked about certain statements he had made to the police, which Ms Wreford's counsel suggested were inconsistent with his evidence. Mr Lyle disagreed that those prior statements were inconsistent with his evidence. He nevertheless acknowledged that he had made the prior statements to the police.
8. The relevant exchange in cross‑examination included the following:[111]

Is it correct that you said in a statement to the police that you heard something and you thought it was a crate or something underneath the car?---Correct.

And did you then in your statement say that, 'I then heard someone yelling out, so I stopped'?---Yeah, I heard someone yell and stopped, but I stopped once I got across the road. I didn't want to stop in the middle of the road. There was traffic coming from Coode Street.

...

Why didn't you want to stop in the middle of the road?---I didn't think there was anything - there was nothing - there - I didn't think there was any need to.

Do you accept that in your statement you say, 'I had a look, but couldn't see anything'?---That's correct.

'So I continued and parked on the side of the road just before the lights'?---That's correct.

But you say it's not correct that you stopped when you heard someone yelling?---Well, in the time that someone yelled and the time I stopped, I only moved - I didn't - when someone yelled I stopped, but I didn't stop until I got to the other side of the road.

1. It was in this context that trial counsel sought to introduce the written police statement itself. The learned trial judge observed that there was no basis for introducing the written statement, as Mr Lyle had accepted that he had made the relevant prior statements. As her Honour put it: '[h]e's accepted what you've put to him that was in his statement ... So it's proven by his own admission that he said those things to the police'.[112]
2. In this regard, the learned trial judge was entirely correct. If a witness distinctly admits that they have made a previous statement, it is proven by the admission and there is no basis for further proof of the statement (for example by admitting the document itself).[113] Mr Lyle admitted that he made the previous statements to the police; those statements were therefore in evidence. Tendering the written document would have added nothing to the evidence.
3. Finally, in this context, it is necessary to specifically address Ms Wreford's contention (in ground 7 and ground 19) that the learned trial judge erred in failing to accept her evidence that Mr Lyle 'drove over her head and then reversed back and then drove over her head a second time'.[114]
4. The only direct evidence that Mr Lyle reversed his car over Ms Wreford's head was the evidence given by Ms Wreford. There were two components to that evidence. First, that Mr Lyle reversed his car during the course of the accident and second, that Ms Wreford's head was struck by the wheel of Mr Lyle's car.
5. As to the first component, it was not put to Mr Lyle in cross‑examination that he had, at any time, reversed his car.[115] Mr Brierley was asked, in examination‑in‑chief, whether he saw Mr Lyle's car reverse at any stage. He said that he had not.[116] Mr Brierley was not cross‑examined in relation to that evidence. In closing submissions, Ms Wreford's trial counsel did not contend that Mr Lyle had reversed his car but rather that 'that was [Ms Wreford's] perception of what happened to her'.[117]
6. Ms Wreford's evidence that Mr Lyle's car had reversed over her was therefore inconsistent with all of the other evidence and with the case that she presented at trial. It was open to her Honour to reject Ms Wreford's evidence in that regard and no error has been demonstrated. Indeed, given that it was not put to Mr Lyle that he had reversed his vehicle, it would have been surprising if her Honour had found otherwise.
7. As to the second component of Ms Wreford's evidence (namely that Mr Lyle's car ran over her head), Ms Wreford is, as the learned trial judge recognised, convinced that this occurred. It is clearly a matter about which Ms Wreford feels very strongly. Ms Wreford was particularly concerned that this Court should inspect the helmet that she was wearing at the time of the accident (exhibit 8) to appreciate the extent of the damage to it.[118] In that regard she asked the court to conclude from the damage to the helmet that Mr Lyle's car had run over her head.
8. We have closely inspected the helmet and we agree that the damage is extensive. The helmet can be properly described as having been shattered into pieces. However the learned trial judge was cognisant of the condition of the helmet and was required to assess that aspect of the evidence in the context of the evidence as a whole.
9. As the learned trial judge observed, there were other possibilities in that regard and there was no expert evidence in relation to the forces required to cause the relevant damage. Two of the medical experts, Dr Ross Goodheart and Professor George Sikorski were shown the helmet in the course of their evidence. Neither professed any expertise in relation to helmets, and their evidence rose no higher than possibilities.[119]
10. And, in the end, that is all that the learned trial judge found in relation to the damage to the helmet: that the damage did not inevitably lead to the conclusion that Mr Lyle's car drove over Ms Wreford's head and then reversed back and then drove over her head a second time.[120] Her Honour was not in error in that regard.
11. In this context, the complaint in ground 19 (as to the precise cause of Ms Wreford's eye injuries in the accident) adds nothing to this issue and is without substance.
12. As discussed below in the context of a number of grounds of appeal relating to the assessment of damages, the learned trial judge accepted that Ms Wreford suffered injuries to her eyes in the accident, including retinal tears and haemorrhages.
13. The expert evidence supporting that finding (principally from Dr Blasco D'Souza) did not set out the precise mechanism for those injuries,[121] although in his evidence at trial Dr D'Souza did refer to 'blunt trauma' as one of the possible mechanisms.[122] It was not suggested by Dr D'Souza (and nor was he asked) that his reference to blunt trauma was a reference to a vehicle driving over Ms Wreford's head. Indeed, in our view, on all of the evidence it would not have been open to her Honour to so find.
14. Ground 19 is without merit.
15. In any event, in the circumstances, whether the wheel of Mr Lyle's car made contact with Ms Wreford's head or whether her injuries stemmed from trauma otherwise resulting from the accident, was irrelevant to the assessment of either Mr Lyle's negligence or Ms Wreford's contributory negligence. Whether or not the accident occasioned contact with her head by a wheel of the vehicle could make no difference to either of those issues in the circumstances.
16. The learned trial judge has not been shown to be in error in relation to her findings as to the circumstances of the accident. Insofar as they challenge those findings, grounds 5, 5C, 7 and 19 must be rejected.
17. In relation to the finding of contributory negligence itself, Ms Wreford also submitted that the apportionment of 30% was manifestly excessive and should be set aside.
18. The principles in relation to apportionment under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 were summarised in O'Connor v Insurance Commission of Western Australia.[123] In that case (which concerned the contribution of the deceased in a fatal accident claim), Buss JA confirmed that a trial judge's decision on apportionment was a discretionary one to which the principles in House v The King applied.[124] His Honour continued:[125]

So, an appellate court will not interfere with a trial judge's decision on apportionment unless the judge has made the kind of error that would justify an appellate court setting aside a discretionary decision. See Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 (Pennington) (15‑16). Error may be inferred from the outcome if it is outside the range of a reasonable judgment. See Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 [73].

The trial judge's conclusion that the Deceased was guilty of contributory negligence involved findings that he had failed to take reasonable care for his own safety in that his behaviour constituted a 'departure from the standard of care of the reasonable man': Pennington (16).

An assessment of the culpability of a plaintiff and a defendant, for the purposes of apportionment, requires a consideration of the relative importance of the conduct of each party in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. See Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65, 68.

A finding on a question of apportionment, as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197, 201. It is well‑established that such a finding, if made by a judge, is not lightly reviewed. See Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, 494; Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 [84], [157]; Anikin v Sierra [2004] HCA 64; (2004) 211 ALR 621 [50] (Anikin).

Ordinarily, the driver of a motor vehicle has, as a matter of fact, a greater capacity to cause damage than a pedestrian. See Pennington (16); Anikin [46], [48] ‑ [52]; Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525 [14]; Nominal Defendant v Ross [2014] NSWCA 212; (2014) 87 NSWLR 238 [46] ‑ [47].

1. In O'Connor v Insurance Commission of Western Australia, Buss JA rejected the proposition that, as a matter of principle, a finding that a driver should have seen a negligent pedestrian should always be apportioned in favour of the pedestrian. [126] In that case, the court upheld a reduction of damages by two‑thirds on account of the recklessness of the deceased.
2. In the present case, of course, the learned trial judge apportioned liability in Ms Wreford's favour. In that regard, her Honour recognised that Mr Lyle bore the greater responsibility for the accident, particularly having regard to the greater capacity for damage from his car and the significant obligation to keep a proper lookout.
3. Nevertheless, as her Honour also found, Ms Wreford's actions were a significant departure from the standard of care of a reasonable cyclist. It was a deliberate decision by Ms Wreford to move to the front of Mr Lyle's car, she knew Mr Lyle was intending to pull out, and on the learned trial judge's findings, there was nothing to prevent Mr Lyle from doing so. In that sense, Ms Wreford took a deliberate risk that was 'tantamount to reckless'.[127]
4. We agree with that characterisation of Ms Wreford's conduct. In all of the circumstances in our view, it cannot be concluded that a reduction of damages by 30% was outside the range of reasonable judgment.
5. Grounds 5, 5C, 7 and 19 must be rejected.
6. We turn now to the grounds concerning the manner in which the trial was conducted.

Conduct of the trial - grounds 6, 8, 13C, 16 and 18

1. Grounds 6, 8, 13C, 16 and 18 are each concerned, to varying degrees, with the conduct of the trial.
2. Insofar as the grounds allege error on the part of trial counsel, for the reasons set out at [84] ‑ [91] above, unless the conduct of counsel resulted in an error by the learned trial judge, those grounds cannot reveal appellable error.

1. Ground 6 concerns an overarching complaint in relation to the trial, namely that Ms Wreford was unable to be 'part of her own trial'. The 'inability' to be part of her own trial referred to in this ground, is a reference to the fact that Ms Wreford was not present in court for part of the trial. Her absence in that regard occurred as a consequence of other witnesses being interposed during the course of her own evidence.
2. The course of the trial in this regard was as follows:

(a) the trial commenced on 15 November 2017. On the first morning of trial Ms Wreford's trial counsel opened her case, in the course of which counsel tendered a number of documentary exhibits without objection;

(b) Ms Wreford commenced giving her evidence prior to the luncheon adjournment on 15 November 2017. Her evidence‑in‑chief continued until approximately 3.50 pm, at which time her counsel sought to interpose another witness, Sylvia Perrin, a long term friend of Ms Wreford;

(c) when trial counsel for Ms Wreford sought to interpose Ms Perrin, counsel for Mr Lyle agreed that that could occur 'subject to the usual rule that the plaintiff waits outside'.[128] With the agreement of her counsel, Ms Wreford waited outside the courtroom for that purpose;

(d) Ms Perrin gave brief evidence as to the changes she had observed in Ms Wreford following the accident. When Ms Perrin's evidence was completed the trial was adjourned for the day at 4.06 pm;[129]

(e) Ms Wreford resumed giving evidence when the trial recommenced on 16 November 2017. Her evidence‑in‑chief was completed shortly after the luncheon adjournment and her cross‑examination was commenced;[130]

(f) at approximately 3.00 pm on 16 November 2017, Ms Wreford's counsel sought to interpose a medical witness Dr Gemma Edwards‑Smith, psychiatrist. Ms Wreford again waited outside the courtroom while Dr Edwards‑Smith gave evidence;

(g) Ms Wreford's cross examination resumed at approximately 3.35 pm on 16 November 2017 and continued for the rest of that day;

(h) at the conclusion of the evidence on 16 November 2017, Ms Wreford's counsel again advised the learned trial judge that he intended to interpose further witnesses the following day. At that point her Honour expressed concern that Ms Wreford's evidence should be completed with as few interruptions as possible, but left the arrangements in counsel's hands;[131]

(i) the following morning (17 November 2017) Ms Wreford's counsel called Dr D'Souza, ophthalmologist, and Dr Goodheart, neurologist. Ms Wreford evidently waited outside during their evidence;

(j) the evidence of Dr D'Souza and Dr Goodheart was completed prior to the luncheon adjournment on 17 November 2017. At that point Ms Wreford's counsel advised the learned trial judge that, in light of her Honour's comments he had rearranged the next witness so as to be able to complete Ms Wreford's evidence.[132] In the course of that exchange (in a passage relied upon by Ms Wreford in the appeal), the learned trial judge said:[133]

Well, that seems sensible because otherwise the plaintiff is going to spend most of her time sitting outside of her own trial which seems to me to be inappropriate apart from any other considerations of a forensic kind that we might ... be concerned with.

(k) Ms Wreford resumed giving evidence after lunch on 17 November 2017 and continued until the end of that day;[134]

(l) the next day of the trial was 20 November 2017. Ms Wreford's counsel advised that he did not wish to re‑examine. Ms Wreford completed her evidence and returned to her seat in the courtroom;[135]

(m) Ms Wreford's counsel called a further three witnesses on 20 November 2017 and tendered further financial documents. Following an inspection by the learned trial judge of Ms Wreford's scarring, counsel closed her case; and

(n) Mr Lyle adduced evidence in defence of the action on 21 and 22 November 2017, following which the parties made closing submissions.

1. It is apparent from the above summary that Ms Wreford remained outside of the courtroom while four of the witnesses gave their evidence. Each of those witnesses was called by, and interposed at the request of, Ms Wreford's counsel. Ms Wreford was asked to remain outside the courtroom during their evidence as a consequence of an arrangement evidently agreed to by her counsel, so as to enable those witnesses to be interposed.
2. As the learned trial judge remarked at the time, the course adopted by counsel was less than desirable. Nor would we describe it, as defence counsel did, as the 'usual rule'. Prima facie, a party is entitled to remain present during the entirety of their trial. An order for witnesses out of court, for example, does not apply to a party.[136] Indeed, in our view, the preferable course, where a witness is to be interposed in the course of a party's own evidence (particularly where the witness' evidence does not involve contested questions of fact), is for the party to remain in court, subject to any inference that might later be drawn concerning the party's own evidence as a consequence of their having heard the evidence of another witness.
3. Nevertheless, a party (or their counsel) may legitimately make the forensic decision that he or she remain outside of court during the evidence of other witnesses in order to avoid any adverse inference in that regard. That was evidently what occurred in the present case. Whatever the merits of that decision, it reveals no error on the part of the learned trial judge.
4. In any event, it is clear from Ms Wreford's submissions in support of this ground that her concern in this context did not relate to the evidence given by the witnesses when she was absent. That is, the submissions in support of the ground did not allege that there was some aspect of those witnesses' evidence that would have been clarified or corrected by counsel if she had been present and giving instructions.
5. Rather, Ms Wreford's complaint in this context concerned her counsel not having tendered certain other documentary evidence or calling other witnesses. For the reasons given above, the merits of counsel's decisions as to which evidence to tender, or which witnesses to call, cannot give rise to any error on the part of the learned trial judge.
6. Ground 6 must be rejected.

1. Ms Wreford contends, by ground 8, that the learned trial judge erred by failing to request further evidence from the parties, specifically, material that Ms Wreford submitted was missing from a police file that had been the subject of a subpoena.
2. The short answer to this ground is that it forms no part of the role of the trial judge to determine what witnesses should be called or what evidence should be led. Those are entirely matters for the parties. Whether counsel ought to have obtained or adduced additional evidence cannot give rise to an error on the part of the learned trial judge.
3. In any event, Ms Wreford's second interlocutory application to adduce additional evidence on the appeal included evidence of the 'Complete Police Files'.[137] That application was rejected in Wreford v Lyle [No 2]. In rejecting the application, Murphy and Mitchell JJA observed that Ms Wreford did not 'show any plausible basis upon which it might be said that there was a significant possibility that the admission of any of these documents on appeal would lead to a different result'.[138]
4. For that reason as well, any alleged failure of counsel to have adduced evidence from the 'police files' would have made no difference to the trial.
5. Ground 8 must fail.

1. Ground 13C challenges the learned trial judge's observation that it was 'agreed that the medical expenses to date had been met by the insurers'.[139] Those past medical expenses (i.e. the special damages) paid by the Insurance Commission on behalf of Mr Lyle up to the date of judgment were $94,242.[140]
2. Ms Wreford contends that her Honour was 'given incorrect facts'[141] and that she (Ms Wreford) was not asked if it was true that those past special damages had in fact been paid.
3. In this context, Ms Wreford called in aid the issue raised in ground 6, namely she said that, as a result of her not being present in court during the interposed witnesses, she was 'unable to talk to her Counsel' to correct the position.[142]
4. The submission is misconceived.
5. First, the amount of past special damages paid by the Insurance Commission on behalf of Mr Lyle was not a matter that was agreed during the course of the trial. That amount was agreed between the parties at the time of the entry of judgment. In that regard, as is discussed later in these reasons, the learned trial judge provided the parties an advanced copy of her Honour's reasons prior to judgment, in relation to which a number of arithmetical issues were raised with her Honour before she formally delivered judgment.
6. Those issues were raised at a hearing on 17 December 2018. Delivery of the judgment was adjourned on that day so that the parties could confer in relation to precisely what calculations should follow from her Honour's reasons.[143]
7. Having so conferred, the parties again appeared before the learned trial judge on 19 December 2018, at which time her Honour published the Primary reasons with the agreed calculations. It is clear that by that time, the parties had agreed that the agreed figure for the past special damages already paid was $94,242.[144]
8. Secondly, the learned trial judge was entitled to proceed upon the basis of the figure agreed by Ms Wreford's solicitors and counsel. Indeed, it is essential to the proper and efficient administration of justice that a trial judge be able to rely upon counsel conferring and reaching agreement in relation to such matters. No error is revealed.
9. Ground 13C must fail.

1. Ground 16 challenges the award of damages for future services by alleging that the learned trial judge was not provided with adequate evidence to make this assessment. The Plaintiff's Particulars claimed $15,000 for future paid assistance. Her Honour allowed that claim in full.
2. The learned trial judge's finding in this regard was as follows:[145]

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.

1. As can be seen, the learned trial judge allowed precisely the sum for future assistance that was claimed by Ms Wreford at trial. The learned trial judge was not in error in accepting Ms Wreford's case in that regard.
2. Ground 16 must fail.

1. Ground 18 also challenges the assessment of future travelling expenses on the basis that '[f]acts were withheld ... the defence Counsel gave false facts' and '[t]he Trial Judge was not open to the facts of the Plaintiffs [sic] evidence of not driving and relying on others to meet her travelling needs'.[146] The Plaintiff's Particulars claimed $5,000 for travel expenses. The learned trial judge allowed that claim.
2. In allowing that claim, her Honour observed that there was no specific evidence in relation to travel expenses:[147]

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. Again, Ms Wreford is bound by the way her case was run at trial. Particularly in light of the absence of evidence in relation to travel expenses, for the learned trial judge to have allowed the claim made on her behalf was both generous and appropriate. It reveals no error.
2. Ground 18 must fail.

Future medical expenses - grounds 13A, 13B, 14 and 20

1. Grounds 13A, 13B, 14 and the first part of ground 20 each challenge the learned trial judge's award of damages for future medical expenses.
2. Grounds 13A and 14 concern the overall assessment of future medical treatment. Grounds 13B and 20 relate specifically to Ms Wreford's need for future ophthalmic treatment.

1. Ground 13A contends that the learned trial judge erred 'in applying the Slip Rule' to the calculation of future medical expenses.[148]
2. This ground relates to the discount rate used for calculating the net present value of the weekly cost of future medical expenses.
3. As we have noted at [162] above, the parties were provided an advanced copy of her Honour's reasons for decision prior to the delivery of judgment listed for 17 December 2018.
4. It is apparent from the transcript that, prior to the hearing on 17 December 2018, the solicitors for Mr Lyle advised the court that a number of the calculations in the advance copy of the reasons had used an incorrect multiplier in calculating future losses. At the hearing of the appeal, this Court was advised that her Honour had used a 3% multiplier.[149]
5. To have calculated future losses using a 3% multiplier would have been an error. The Law Reform (Miscellaneous Provisions) Act 1941 (WA) requires that the present value of a liability to incur expenditure in future be quantified by adopting a discount rate of 6%.[150]
6. At the hearing on 17 December 2018 counsel for Ms Wreford accepted that a 6% multiplier had not been used and did not dispute the accuracy of the calculations prepared by Mr Lyle's solicitors.[151] He, nevertheless, submitted that the error in the advanced copy of the reasons could not be corrected under the slip rule and could only be corrected on appeal. Ms Wreford essentially repeated that submission on appeal.
7. The submission is misconceived.
8. In truth, the slip rule had no role to play in this context. Pursuant to the slip rule, a court may correct an error in a judgment or order arising from an accidental slip or omission, without the need for appeal. The rule exists as part of the inherent jurisdiction of a superior court and is also reflected in O 21 r 10 of the Rules of the Supreme Court.
9. In the present case, the error in the use of a 3% multiplier to calculate future losses was recognised and identified before judgment had been entered and before the learned trial judge made any orders. Indeed, the error was identified and brought to the learned trial judge's attention before her Honour formally published her reasons for decision. The formally published reasons do not contain the error.
10. Accordingly, there was no error in the judgment or orders to correct. The slip rule had no application. All that occurred in the present case was that the parties identified an arithmetical error in her Honour's advanced reasons before that error found its way into the judgment and orders of the court and, as a result, any such error was avoided.
11. The approach taken by the learned trial judge was perfectly proper and involved no error.
12. Ground 13A must be rejected.

1. The Plaintiff's Particulars claimed $26,104 for future optical treatment. This figure comprised claims for:

(a) treatment and review with Ms Wreford's treating ophthalmologist and ophthalmic surgeon every three months for the remainder of her life at $90 per consultation (or $7.50 per week); and

(b) eye drop medication estimated at $100 per month (or $25 per week.[152]

1. The learned trial judge assessed the total amount for these claims in the sum of $25,274 (being $5,479 in respect of the ophthalmic reviews and $19,795 in respect of the optical medications).[153]
2. In reaching that assessment the learned trial judge essentially allowed the claim made by Ms Wreford in its entirety. The minor difference between the two amounts ($26,104 vs $25,274) is explained by the fact that the learned trial judge used a more accurate method of calculating the ophthalmic reviews[154] and applied the weekly multiplier for 37 years rather than 39 years (on account of the difference in Ms Wreford's age at the time of delivery of judgment compared to her age at the time of trial).
3. Ground 13B challenges the allowance for optical medication on the basis that her counsel 'withheld' the primary facts as to the cost of that medication. Ms Wreford submitted at the appeal that she did not 'know where he has got that figure [i.e. $25 per week] from'.[155] Not only does that submission fail to reveal any error on the part of the learned trial judge, it is simply wrong. Ms Wreford herself gave evidence at trial as to the cost of her eye medication. She said the cost could vary but said she had 'paid as low as $50 odd up to nearly $90 ... a month'.[156]
4. It will be apparent that, not only was the allowance for the cost of future medication at a rate of $100 per month consistent with the evidence at trial, it was more than ample.
5. Ground 13B must fail.

1. Ground 14 contains a generalised complaint in relation to the assessment of damages for future medical expenses. Save for references to the need for treatment to her eyes, Ms Wreford's grounds of appeal and submissions did not identify any medical expenses that were the subject of evidence and which did not form part of the assessment of damages.
2. The total amount claimed in the Plaintiff's Particulars in respect of future medical expenses was $75,208.90.[157] The learned trial judge assessed those damages in the sum of $68,120, a difference of some $7,088.90.
3. As is clear from the Primary reasons, save in one respect, the learned trial judge allowed the claims made in the Plaintiff's Particulars in their entirety. The relatively small difference between the total amount claimed and the total amount allowed is explained by unremarkable arithmetical adjustments such as those identified in relation to the optical component in [191] above. Those adjustments reflect no error.
4. The one component of the Plaintiff's Particulars that was not allowed in full was a claim for painkilling, anti‑inflammatory and antidepressant medication in the sum of $16,064.
5. In that regard her Honour said:[158]

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. As her Honour recognised, the evidence at trial was that Ms Wreford steadfastly refused to consider treatment for her psychological injury by way of medication. That refusal was contrary to the recommendation of both of the psychiatrists at trial, Dr Edwards‑Smith and Dr Eileen Tay.[159]
2. Indeed, Mr Lyle argued, at trial, that in light of that refusal, Ms Wreford's damages ought to be reduced for a failure to mitigate her loss. That argument was rejected by the learned trial judge and there was therefore no reduction in Ms Wreford's damages for a failure to mitigate.[160]
3. Nevertheless, given Ms Wreford's clear evidence that she would not take antidepressant medication, the award of damages could hardly include an allowance for the cost of that medication. The learned trial judge was correct to recognise this.
4. In those circumstances, given the paucity of evidence in relation to the future pain medication, a global allowance of $10,000 was reasonable and no error is revealed.
5. Ground 14 must be rejected.

1. Ground 20 appears to raise two distinct issues in relation to Ms Wreford's eye injuries. The first complaint arising under ground 20 was that the learned trial judge had made no allowance for the cost of future surgery to her eyes as her condition worsened.
2. This aspect of ground 20 must fail.
3. There was, in fact, no claim at trial for such costs, nor (save for an oblique reference to the possibility that Ms Wreford may eventually require more operative treatment)[161] was there any specific evidence as to the likelihood or cost of any future surgery.
4. Indeed, the evidence in relation to Ms Wreford's need for future treatment for her eyes largely focused on the need for ophthalmic reviews and optical medications (namely the items addressed in ground 13B). As has already been identified, Ms Wreford's claim in that regard was allowed in full. In that regard, it could even be said that that allowance was generous, inasmuch as the learned trial judge made no allowance or reduction for the fact that Ms Wreford would (at least to some extent) have required ophthalmic reviews and optical medications for the rest of her life in any event.
5. Insofar as ground 20 relates to medical expenses, it must fail.

1. Ground 15 contends that the learned trial judge erred in failing to award damages for past gratuitous services.
2. The Plaintiff's Particulars included a claim of $10,000 for past gratuitous services.[162] This claim was presented as a 'global sum', based on the evidence presented at trial to the effect that Ms Wreford's sister and sons assisted her with domestic chores for a period of six months following the accident.[163] That claim was proffered based on an hourly rate of $30.[164]
3. In accordance with s 3D(6) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA), no damages may be awarded for gratuitous services if the amount that may otherwise be awarded is 'Amount D or less'. As at the date of judgment, 'Amount D' was $6,500.[165] Accordingly, no damages could be awarded to Ms Wreford with respect to gratuitous services unless their value exceeded $6,500.
4. In this regard, the learned trial judge concluded:[166]

The evidence was that Ms Wreford's sister helped her initially, as did her sons, but that she said she was able to cook and look after her house in a relatively short time. She had ongoing assistance with shopping. It is clear that she returned to work on a part‑time trial basis, later in 2013.

There was little detailed evidence of the assistance Ms Wreford received in the initial period following her release from hospital, when she would have had her left arm in a sling and no doubt needed a considerable amount of assistance. No attempt was made by counsel for Ms Wreford to quantify the assistance actually received. If anything, Ms Wreford minimised the help she received (ts 124 ‑ 125).

I have made some basic calculations as an arbitrary check at the rate of two hours per day for the first six weeks, using $32 per hour, followed by an hour a day for the following 10 weeks at the same rate, that the total does not exceed $6,500. There is no reliable basis in evidence for a calculation. I am precluded by the provisions of s 3D(6) for making any award under this head.

1. These conclusions reveal no error on the part of the learned trial judge.
2. As her Honour noted, there was very little evidence to support a claim for past gratuitous services. The evidence Ms Wreford gave in that regard was as follows:[167]

Now, following your discharge from hospital, did your sister assist you with routine household duties and dressing and the like?---She didn't dress me because she would go back home to her family but the boys were there to drop my zip or anything that I needed that I couldn't handle on my own. But she - yeah, she cared for my children whilst ‑ ‑ ‑

Now, did you have - immediately after you return from the hospital what assistance did you have for cleaning, laundry, washing and the like?---My sister came over a lot. My children helped. I had a lot - a lot of friends deliver meals. They were amazing the first couple of weeks. My neighbour, he did my lawn. He still does my lawns to this day. Yeah, just ‑ ‑ ‑

Now, what was the position in relation to meal preparation following your return?---At first people would bring over lots of meals and my sister would do lots of shopping and when I started to cook it was mainly steak because it was quick and easy and we eat our meat rare, so there wasn't much cooking involved.

BRADDOCK DCJ: When did you first start to cook again, Ms Wreford?---I fried up the steak, it was probably two weeks later, I think I did it.

After your discharge, was that?---Yeah, but we - we ate lots of prepared meals and lots of takeaways. So I just felt like I - that was something that I wanted to give my kids, give them something that they liked.

[MS WREFORD'S COUNSEL]: How long did you require assistance with shopping after your accident?---I think people around were - around for - about six weeks that I relied on people. Sorry, six - yeah, about - up to six months but in between ‑ ‑ ‑

BRADDOCK DCJ: Six months or six weeks, Ms Wreford? You said both?---Yeah. Six weeks I would start doing a bit of the shopping but not the majority of it but I would have help up to about six months of major stuff.

[MS WREFORD'S COUNSEL]: Now, did you receive assistance with cleaning and washing after the accident?---My sister did it and my children hung up the clothes.

Was that for about eight weeks after your accident?---Yes. Well, my sister but my children to this day still help.

Have your children assisted you with getting to and from medical appointments over the period since the accident?---Yes.

Otherwise have you used taxis and Ubers and public transport?---Yes.

Now, you mentioned six months, by that stage have you got back to doing virtually the things that you were doing prior to your accident?---Yes.

In relation to heavy housework are you able to do that?---Not heavy housework but I would like do a room at a time.

BRADDOCK DCJ: What do you mean by 'heavy housework'?---Like if something needed - like prior to the accident I would dust, vacuum and mop all in one - like one - one ‑ ‑ ‑

You mean the whole house from top to bottom ‑ ‑ ‑ ?---Yeah.

‑ ‑ ‑ in one go?---Yeah. Is that what you mean by heavy? Sorry.

Well, I'm asking you what you mean, Ms Wreford?---That - yeah, that's what I consider to be heavy.

So cleaning the house basically?---Yes.

You've got a vacuum cleaner and that?---And then I'd only do one room at a time when I was able to, yes.

1. This evidence supported conclusions to the effect that Ms Wreford was cooking at least some meals for herself within two weeks of returning home, carrying out some of her shopping within six weeks and required assistance with major tasks for up to six months. On the basis of this evidence, the learned trial judge's estimate of two hours of assistance per day for the first six weeks and one hour of assistance per day for the following ten weeks was entirely reasonable.
2. The learned trial judge's 'check' calculations of that level of assistance amounted to only $4,928, which is well below Amount D. It was, accordingly, not open to award damages for past gratuitous services.
3. Ground 15 must fail.

Loss of earning capacity - grounds 10, 11, 11.1 and 17

1. As summarised at [73] ‑ [75] above, the learned trial judge awarded damages on the basis that Ms Wreford's earning capacity had been reduced as a consequence of the accident. As her Honour recognised, damages are awarded for loss of earning capacity, rather than loss of earnings. Nevertheless, the parties and the learned trial judge adopted the convenient and conventional approach of separately assessing the losses up to the date of trial (past loss of earnings) and Ms Wreford's future los[168]f earning capacity.168
2. Ground 10 challenges the learned trial judge's assessment of past loss of earnings. Grounds 11, 11.1 and 17 challenge various aspects of her Honour's assessment of Ms Wreford's loss of future earning capacity.

1. The learned trial judge assessed Ms Wreford's past loss of earnings on the basis of a pre‑accident earning capacity of $370 net earnings per week.[169] In ground 10, Ms Wreford contends that her Honour's approach was unreasonable as it was 'based and assessed on the lowest part of her working life'.
2. The ground must be rejected.
3. First, the learned trial judge's approach did not, strictly, reflect the lowest part of Ms Wreford's working life. It was based on an average of the net weekly earnings for the four years prior to the accident (the financial years ended 30 June 2010 to 30 June 2013).[170] That average ($370 net per week), was substantially higher than Ms Wreford's net weekly earnings in the financial year prior to the accident ($294.16 net per week).
4. That said, it is correct to say the learned trial judge did assess Ms Wreford's past losses by reference to part‑time work, which had been the norm for Ms Wreford in the years prior to the accident. In that regard, the learned trial judge said:[171]

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.

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.

1. This was an approach properly open to her Honour and has not been shown to be in error.
2. In particular the learned trial judge gave careful consideration to the evidence in relation to Ms Wreford's gradual reduction in hours, including evidence of bullying and anxiety. Her Honour rejected Ms Wreford's contention that her anxiety was solely attributable to bullying at work, finding that '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'.[172]
3. In those circumstances, it was open to the learned trial judge to find that the sum of $370 net per week was properly reflective of Ms Wreford's earning capacity at the time of the accident and up to the time of trial.
4. At the hearing of the appeal, Ms Wreford also made the submission that the learned trial judge's assessment of her working capacity was based on a period during which she was concentrating on raising her children and that she should not (as she put it) 'be penalised for being a stay‑at‑home mum'.[173]
5. It is correct, of course, as a matter of principle, that the fact that a plaintiff has not exploited his or her earning capacity in the past for family or domestic reasons, should nevertheless be compensated for any diminution of that earning capacity where that diminution is or may be productive of financial loss. Thus, if an assessment is made that a plaintiff who has, in the past, chosen not to exploit his or her earning capacity, would have done so again at some point in the future, the loss of that capacity must be the subject of compensation.[174]
6. Nevertheless, both the diminution of a plaintiff's earning capacity and the economic consequences that flow from that loss are questions of fact to be determined based on the evidence in each individual case. In the present case the evidence in relation to the gradual reduction in Ms Wreford's earnings between the year ended 30 June 2007 and the year ended 30 June 2013 was not that it was due to her family commitments.
7. Ms Wreford did indeed commence work at the casino in 2006 when her youngest son was approximately six years of age and her other sons were 11 and eight years of age respectively. She gave evidence as to the arrangements that she made for the children when she commenced work at the casino.[175] As the learned trial judge found, the work was shift work that Ms Wreford was able to fit around the children's needs, with assistance from a neighbour, and by working shifts when her sons spent time with their father.[176]
8. By the time of the accident, in June 2013, Ms Wreford's sons were approximately 17, 15 and 13 years of age respectively. In the interim, Ms Wreford's annual income from the casino had reduced from a high point in the year ended 30 June 2008 of $56,797 per annum to $15,338 in the year ended 30 June 2013 (i.e. shortly after the accident).
9. The cause of that reduction was the subject of evidence at the trial, and in particular, Ms Wreford's evidence of having been bullied at work from 2007 and suffering from anxiety as a consequence. While, as noted above, her Honour rejected Ms Wreford's contention that her anxiety was solely attributable to bullying at work, there was no contention or evidence at trial that Ms Wreford's family responsibilities were a cause of, or contributed to, her reduction in earnings over that period.
10. At the hearing of the appeal Ms Wreford also made submissions to the effect that insufficient account was taken of significantly higher earnings that she had made much earlier in her life. She referred, for example, to 'earning 130,000 [dollars] 30 years ago'.[177] There was, however, no evidence to that effect at trial. While Ms Wreford did give evidence, in general terms, as to her work history from the age of 14, the only financial evidence that was adduced as to her earning history was that from the casino, commencing in 2007. There was no evidence as to the level of Ms Wreford's income at any earlier time.
11. Ground 10 must be rejected.

1. Ground 11 makes a similar complaint to that made in ground 10, but in relation to the assessment of Ms Wreford's future earning capacity. That is, ground 11 contends that the learned trial judge erred by assessing Ms Wreford's loss of future earning capacity by reference to the 'lowest reduced past earning for the few years preceding the accident'.
2. In this context, Ms Wreford made a specific complaint that the learned trial judge did not assess damages on the basis that Ms Wreford would have set up her own business in the IT industry. That particular matter is the subject of ground 17 and is dealt with below.
3. In relation to the expected net weekly earnings upon which the learned trial judge did base her calculations of the value of Ms Wreford's loss of future earning capacity her Honour has not, in our view, been shown to be in error.
4. In that regard, the learned trial judge did not, as the ground contends, assess Ms Wreford's loss of future earning capacity on the basis of the 'lowest reduced past earning for the few years preceding the accident'. On the contrary, her Honour adopted an annual net earnings figure of $40,000 ($769.23 per week net).[178] In that regard, her Honour took as a starting point net earnings of $651.30, which was the rate that Ms Wreford had claimed for a return to work at the casino for the latter half of 2015.[179] The learned trial judge increased that amount to reflect an increase 'in rates and/or hours'.
5. The amount that her Honour arrived at ($769.23 per week net) was more than double the weekly earnings figure that her Honour had applied to reach her assessment of past loss of earnings and substantially higher than the income that Ms Wreford had earned in any financial year since the year ended 30 June 2009.
6. Necessarily the learned trial judge's assessment in this regard was an estimate. That is to be expected in an assessment of hypothetical future events. By no means, however, did her Honour's assessment reflect the low point of Ms Wreford's demonstrated past earnings. Indeed, it was well in excess of the average of those earnings.
7. Her Honour has not been demonstrated to be in error and ground 11 must be rejected.

1. Ground 11.1 alleges that the learned trial judge erred in failing to assess Ms Wreford's future loss of earning capacity for the period beyond 67 years of age.
2. The Plaintiff's Particulars claimed loss of future earning capacity on the assumption that Ms Wreford had an expected retirement age of 70 years.[180] There was, however, no direct evidence in support of that assumption. Ms Wreford did not give evidence as to her intended date of retirement.
3. In those circumstances, again, the learned trial judge was left to estimate, as best as her Honour could, an appropriate retirement age upon which to base the assessment of damages. Her Honour described 67 years of age as 'a standard retirement age'. In the absence of other evidence that age was, in our view, a reasonable estimate of an 'average' retirement age (and, indeed, across the Australian workforce, was perhaps a little generous).
4. In the present case, her Honour also took into consideration Ms Wreford's pre‑existing anxiety and optical conditions. Those conditions are dealt with in the context of grounds 3, 4 and 9 below. In all of the circumstances, to have applied a 'standard retirement age' of 67 years could not be said to be in error.
5. Ground 11.1 must fail.

1. Ground 17 contends that the sum allowed for Ms Wreford's lost opportunity to retrain was inadequate because the learned trial judge 'was not open to [Ms Wreford's] previous working career history'.[181]
2. This ground concerns Ms Wreford's claim, at trial, that she intended to set up her own business in IT or seek employment in the IT industry and that, but for the accident, Ms Wreford would (by the time of trial) have graduated to the position of IT manager earning $99,574 gross per annum, until age 70 years.[182]
3. The learned trial judge dealt with Ms Wreford's evidence in relation to her proposed business venture. Indeed, that evidence formed part of her Honour's adverse assessment of Ms Wreford as a witness. In particular, her Honour found:[183]

I am also unable to accept that Ms Wreford had obtained any commercially recognised qualifications in 'Web Design' from 'Excel in Business'. The only evidence in support of this proposition is hers, in that she says she completed online coursework, pursuant to a discounted voucher, which on its face was valid between 26 June 2012 and 26 July 2012. She said she downloaded the papers and studied, whilst the document itself said 'no downloads'. There was no assessment or evaluation of the course work. She printed the certificate of completion herself and produced it (exhibit 10).

She accepted that she had no experience in current web design. She said she was just starting to set up her own 'dummy' website. Under cross examination she was not able to describe the subject matter of 'web design and tools' in any detail. She said her memory was affected by her injuries. Making allowances for that, she did nothing to elaborate on what she had studied or learned. Neither was there any other evidence as to the course itself or her completion of it. The certificate showed all units completed on 23 July 2013, which Ms Wreford said was due to her neglecting to attend to the record as she studied. I found this to be unconvincing, as one would expect an online student to record the completion of each unit, if only for her own satisfaction. Ultimately, I was unable to place any weight on the course 'certificate' or Ms Wreford's assertions as to its completion and significance.

1. None of these primary findings were directly addressed in Ms Wreford's grounds of appeal or in her submissions. Those findings were not demonstrated to been made in error.
2. In those circumstances, given Ms Wreford's age and lack of qualifications or recent experience, the learned trial judge found that the likelihood of Ms Wreford securing employment in IT or web design was remote. That finding was amply justified by the evidence.
3. In those circumstances a modest allowance of $20,000 for overall loss of opportunity to retrain and 'possibly pursue IT and web design' was entirely appropriate.[184] Her Honour was not in error in that regard.
4. Ground 17 must fail.
5. As noted above, the claim for loss of earning capacity was also affected by what her Honour found were Ms Wreford's pre‑existing anxiety and optical conditions. It is appropriate to consider those matters at this point.

1. Grounds 3, 4 and 9 challenge the learned trial judge's findings in relation to Ms Wreford's pre‑existing medical conditions. Grounds 3 and 4 challenge the factual findings as to those conditions and ground 9 concerns the deduction for contingencies made on account of the conditions.
2. As we have set out in the summary at [59] above, in assessing Ms Wreford's damages, the learned trial judge found that Ms Wreford suffered from two pre‑existing conditions:

(a) a pre‑existing ophthalmic condition;[185] and

(b) pre‑existing anxiety, which made her more vulnerable to suffering from post‑traumatic stress disorder and could have made her post‑traumatic stress disorder more difficult to treat.[186]

1. It is necessary to put those findings in their proper context. The learned trial judge found, and awarded damages on the basis that the accident had caused injuries to her eyes and that it had caused her post‑traumatic stress disorder. In that regard, Ms Wreford's pre‑existing ophthalmic condition and anxiety did not relieve Mr Lyle of the consequences of the injuries caused by the accident.
2. On the contrary it is clear that the learned trial judge's assessment of damages gave significant emphasis to Ms Wreford's ophthalmic and psychological injuries. Her Honour, for example, said:[187]

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. ...

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.

1. To the extent that the learned trial judge took into account Ms Wreford's pre‑existing conditions, it is clear that her Honour had regard to them as contingencies concerning matters that may or may not have occurred regardless of the accident (i.e. hypothetical events) or which might happen in the future (i.e. future events). In that regard, her Honour's approach was perfectly orthodox.
2. As the High Court explained in Malec v JC Hutton Pty Ltd:[188]

The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. ... Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. ... The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.

1. Applying this approach, it is apparent that the adjustment in the amount of damages due to Ms Wreford's pre‑existing conditions principally related to her future earning capacity. The learned trial judge reduced the calculation of her future earning capacity by 25%, being 5% for 'usual' contingencies and 20% for her known pre‑existing conditions.[189] As discussed in [243] ‑ [246] above, in the absence of any evidence as to Ms Wreford's intended retirement age, her Honour also considered that, in light of her pre‑existing conditions, a putative retirement age of 67&#160[190]ars was reasonable.190
2. Ground 3 concerns Ms Wreford's pre‑existing ophthalmic condition. The learned trial judge's findings as to that condition were as follows:[191]

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 [sic], 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 undisputabl[y] caused by the accident.

1. These findings were consistent with the evidence given by Dr D'Souza, the ophthalmologist who has treated Ms Wreford since she was referred to him with high intra‑ocular pressure in 2003. While Ms Wreford had also experienced other eye conditions, including recurrent vitreal haemorrhages, over the years, the principal condition of concern was glaucoma, due to high intra‑ocular pressure. While, as the learned trial judge found, that condition was being treated reasonably effectively, it was necessarily a long term condition.
2. As Dr D'Souza put the position, in relation to Ms Wreford's pre‑accident condition:[192]

[T]he vitreous haemorrhage wasn't expected to be a long term problem. Okay. It's the - the glaucoma that we would be watching her carefully for, watching to see how do the pressures behave over time. If they're rising, do we need to adjust the eye drop treatments? Does she need laser treatment? Will she need operative treatment?

1. As her Honour recognised, the ophthalmic witnesses could not state with any precision the natural course of her condition had there been no accident. Nevertheless, her Honour was correct to find that it was an ongoing condition for which Ms Wreford would always have required treatment.
2. Ground 4 concerns the learned trial judge's finding that Ms Wreford suffered from anxiety prior to the accident. That finding was in the following terms:[193]

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.

1. It should again be noted in this context that the only respect in which the finding of pre‑existing anxiety led to a reduction in the assessment of Ms Wreford's damages is that it was taken into account in relation to the assessment of her pre‑accident earning capacity (and in particular formed part of the discount for contingencies).[194] The learned trial judge's finding that Ms Wreford's pre‑existing anxiety made her 'more vulnerable to PTSD' did not result in any reduction of damages with respect to that injury. Indeed, in light of Ms Wreford's cognitive and psychological difficulties her Honour found that Ms Wreford had no residual earning capacity[195] and she also allowed the full amount claimed for psychological treatment.[196]
2. Ms Wreford submitted that there was no medical evidence to support the finding of pre‑existing anxiety.
3. That submission cannot be accepted. There was, in our view, ample evidence to support the finding that Ms Wreford had suffered from anxiety for a number of years prior to the accident. It must immediately be acknowledged that the evidence in this regard was complicated by the fact that Ms Wreford's evidence in relation to her previous treatment for anxiety was itself less than satisfactory, and evasive.[197]
4. The following matters were, nevertheless, revealed by the objective evidence.
5. Ms Wreford consulted with general practitioners in relation to anxiety during 2012, including her usual general practitioner, Dr Gary O'Mahony, who prescribed her antidepressants.[198] She attempted to have Dr O'Mahony prescribe her Valium but he refused to do so.
6. Ms Wreford approached another general practitioner, Dr Wing Yin Lo, for the purpose of obtaining a prescription for Valium. Dr Lo's notes of a consultation on 24 October 2012 record that Ms Wreford described a history of anxiety:[199]

Suffer anxiety 5 yrs under control

From trauma with operation

Last 7m not coping well

1. Dr Lo gave Ms Wreford prescriptions for Valium on 24 October 2012, 2 November 2012 and 11 December 2012.[200] At the last of those consultations, on 11 December 2012, Dr Lo referred Ms Wreford to Bentley Hospital for psychiatric review. Dr Lo's referral letter included the following:[201]

Thank you for seeing Jovanna for your opinion and advice on management of her anxiety. She has a phx of anxiety for the last 6 yrs. Previously she used alcohol to control it. Now she decided to stop alcohol and finds valium helps with her anxiety and alcohol control. She is using roughing (sic) 5mg valium 1/day on average. She has tried antidepressant in the past but she experienced side effects on it, like pristiq causing wt gain 6 kg in 2 wk and she had to stop it. She is keen to see psychiatrist and discuss options of management. Thanks for your review and management.

1. The medical records from Bentley Hospital were admitted into evidence. They confirm that Ms Wreford attended at the hospital on 11 December 2012 and 17 December 2012.[202] Those records and a subsequent report from the hospital,[203] record that Ms Wreford gave a history to the hospital staff that included 'a 10 year history of anxiety' and 'undiagnosed ADD as child'.
2. On their face, these medical records, which predate the accident, support a finding that Ms Wreford had, as the learned trial judge found, pre‑existing anxiety 'over 5 to 10 years'.
3. Ms Wreford sought to counter that inference by maintaining that she had lied to the staff at Bentley Hospital in order to obtain Valium from the hospital.[204] It is clear that, in some respects, Ms Wreford did lie to the hospital staff. For example, she told the hospital staff that Dr Lo had refused to provide her with a prescription for Valium, when Dr Lo had given her several scripts.[205]
4. Nevertheless, the fact that Ms Wreford had lied in order to obtain Valium did not, as Ms Wreford appeared to suggest, demonstrate that she did not have a pre‑existing problem with anxiety. On the contrary, as the learned trial judge found:[206]

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.

1. That was a finding clearly open to her Honour. Indeed, in cross‑examination Ms Wreford confirmed that she had experienced anxiety 10 years prior, when going through her divorce, albeit she said that it had not been ongoing.
2. There was, in any event, other evidence before the learned trial judge as to Ms Wreford's pre‑accident history of anxiety.
3. In the approximately six months prior to the accident, Ms Wreford was unable to work full‑time and obtained a certificate from Dr Lo, dated 5 February 2013, that she was only fit for minimal duties for six months. Ms Wreford said that the reduction in work was due to her 'anxiety levels'.[207]
4. Dr Edwards‑Smith, who was called by Ms Wreford, also reported a preceding history of anxiety, which was based on the history given by Ms Wreford and the medical records.[208] The learned trial judge accepted Dr Edwards‑Smith's opinion, in relation to which there was 'no real challenge.[209]
5. More significantly, the learned trial judge also received evidence from Ms Wreford's treating psychologist, Ms Connolly, who reported a history of stress and distress that pre‑dated the accident. Ms Connolly had seen Ms Wreford on 40 occasions between 2013 and 2017 and based her report on disclosures from Ms Wreford, together with the medical records.[210] There was no basis to discount Ms Connolly's evidence in that regard.
6. Accordingly, the challenge, by grounds 3 and 4, to the factual findings that Ms Wreford suffered from a pre‑existing ophthalmic condition and pre‑existing anxiety, must fail. There could be no real doubt that Ms Wreford suffered from those conditions. The real issue at trial was as to how they should be accounted for in the assessment of damages.
7. As we have noted above, the way in which these conditions were addressed in the assessment was to make a deduction for contingencies to Ms Wreford's loss of future earning capacity. Ms Wreford's counsel at trial accepted that dealing with the pre‑existing conditions in that way was appropriate.[211] The only real issue, therefore, was the appropriate size of the discount for those contingencies. That discount was necessarily going to be an imprecise estimation.
8. In our view, the learned trial judge's discount of 20% for those matters, while high, was not so outside the range of a sound discretionary judgment that we are able to infer an error. In the end it was necessary for her Honour to take into account two quite separate pre‑existing conditions that had the capacity to affect Ms Wreford's future earnings. One of those conditions (the anxiety) had resulted in a significant incapacity for work in the period immediately prior to the accident. The learned trial judge correctly addressed all of the relevant evidence, recognising that it was necessary to apply a broad brush in accounting for Ms Wreford's pre‑existing conditions.
9. Her Honour has not been shown to be in error. Ground 9 must fail.

1. Each of grounds 1, 2 and 20 challenge the learned trial judge's assessment of non‑pecuniary loss (i.e. general damages). Her Honour's assessment of Ms Wreford's non‑pecuniary loss was $125,000.
2. The amount of damages to be awarded for non‑pecuniary loss in a case such as this is governed by s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. That amount must be a proportion, determined according to the severity of the non‑pecuniary loss, of the prescribed statutory maximum that may be awarded (which amount may be awarded only in a most extreme case).[212] The statutory maximum at the time of the assessment of Ms Wreford's loss was $418,000. The learned trial judge in the present case, accordingly, assessed Ms Wreford's non‑pecuniary loss as being approximately 30% of that maximum.
3. As we have already observed at [92] ‑ [95] above, the assessment of damages for personal injury has many of the characteristics of a discretionary judgment; it is not an exact science, but is governed by considerations of p[213]tical common sense.213
4. This is quintessentially the case in relation to the assessment of non‑pecuniary loss. Measuring in money things such as pain and suffering, or the impairment of the capacity to live life to the full, involves dealing in incommensurables.[214] Bodily injury and pain and suffering are not the subject of commercial dealing and cannot be calculated like some other forms of damage.[215]
5. With the introduction of provisions such as s 3C of the Motor Vehicle (Third Party Insurance) Act 1943, that assessment is now more bounded and controlled than it was in the past, inasmuch as the court must arrive at an amount that is a proportion of the amount recoverable in a most extreme case. Nevertheless, the exercise remains one in which the court is required to weigh what are essentially imponderables. As such, it is an assessment for which the principles of appellate restraint are particularly apposite.
6. Ground 1 contends that the award of non‑pecuniary loss was manifestly inadequate in all of the circumstances. Grounds 2 and 20 challenge specific findings made by the learned trial judge that were relevant to her Honour's assessment of general damages. It is appropriate to address grounds 2 and 20 before turning to the issue of whether the award overall was manifestly inadequate.

1. This ground contends that the learned trial judge erred in reaching the conclusions set out at [60] above, namely that, while it was likely that Ms Wreford had suffered from some hypoxic brain injury, by the time of trial her disabling cognitive condition was psychiatric and psychological.
2. In reaching that conclusion, it was necessary for the learned trial judge to make findings based on competing expert evidence, particularly as between Dr Goodheart and Ms Mandy Vidovich. In reaching a preference for Ms Vidovich's view, her Honour relied upon the differences between Ms Wreford's subjective reporting of her symptoms and the results of the neuropsychological testing undertaken by Ms Vidovich. Those differences were consistent with her Honour's own assessment that Ms Wreford was not a reliable historian and that she had a tendency to catastrophize her experiences.
3. The learned trial judge has not been shown to be in error in preferring the evidence of Ms Vidovich and in concluding that Ms Wreford's present disabling condition was psychiatric and psychological (rather than organic). Indeed, at the hearing of the appeal, it was apparent that Ms Wreford's challenge to this finding was based, not upon an analysis of the competing expert evidence at trial, but upon her own, subjective, perception of her disabilities. Unfortunately, as the learned trial judge held, Ms Wreford's perception is not a sure guide to the objective nature of her ongoing difficulties and disabilities.
4. Ground 2 must fail.

1. As noted above, ground 20 appears to raise two distinct issues in relation to Ms Wreford's eye injuries. That aspect relating to the assessment of future medical expenses is addressed at [205] ‑ [209] above.
2. The second complaint arising under ground 20 was that the learned trial judge erred in failing to assess damages on the basis that Ms Wreford would lose her eyesight in the future. At the hearing of the appeal, Ms Wreford submitted that 'I will be going blind in the future, and [her Honour] has not taken that seriously enough'.[216] In that context, there is no doubt that her Honour clearly assessed damages on the basis that Ms Wreford suffered from significant residual disabilities, including to her eyesight.[217] This ground is therefore concerned with the extent of those disabilities - and in particular whether it is correct to say that Ms Wreford 'will be going blind'.
3. The submissions in support of this ground submitted that 'by the hearing stage Ms Wreford will have Fresh Evidence with the worsening of her right eye and both eye pressures at a [sic] extreme high'.[218]
4. No such fresh evidence was adduced, or sought to be adduced, on the appeal. Evidence in relation to the 'worsening' of Ms Wreford's ophthalmic condition was not the subject of either of the previous applications by Ms Wreford to adduce additional evidence in the appeal (as to which see [85] above). In any event the admission of such evidence would, ordinarily, be prevented by the principle that damages are awarded as a lump sum that is fixed once and for all and which is not revised upwards or downwards in the light of subsequent de[219]opments.219
5. In relation to the evidence at trial concerning Ms Wreford's ophthalmic condition, as set out at [263] ‑ [266] above, the evidence supported her Honour's finding that, in addition to the injuries sustained to Ms Wreford's eyes in the accident, Ms Wreford suffered from a long term pre‑existing ophthalmic condition, particularly relating to high intra‑ocular pressure.
6. In that context, there was evidence as to the prognosis of Ms Wreford's ophthalmic conditions, which related both to the injuries sustained in the accident and her underlying condition.
7. In relation to Ms Wreford's right eye, for example Dr D'Souza gave evidence:[220]

The eye pressure is actually well controlled. It's staying relatively low but it's the nature of many people with glaucoma, probably most, that their condition will worsen over time. The glaucoma - the drainage mechanism will progressively fail and they will require increasing treatment over time.

1. As the learned trial judge observed,[221] Dr D'Souza was guarded in relation to his prognosis for Ms Wreford's right eye:[222]

I suspect she'll have worse macular function. I have the suspicion that the vision in that right eye with the chronic cystoids macular oedema which we cannot treat her vision will probably have dropped to what we call 660 so that's the top line on the standard vision chart or less. I'd be hopeful it can be held together, but I'm not optimistic. We don't tend to see people with long‑term chronic cystoids macular oedema who maintain good vision or even the current modest drop in vision long‑term.

1. In relation to her left eye, again as her Honour observed,[223] the focus was on Ms Wreford's underlying condition:[224]

So for the left eye concentrating first on her underlying condition, open angle glaucoma, the natural history of this is it's likely that the drainage mechanism will progressively fail as we've seen just recently where we had to adjust the medications yet again and the pressure has now come back down into a reasonable range and I have a suspicion that she will eventually require laser treatment (indistinct) treatment.

...

The fact that she developed a retinal tear in that eye suggests that she must have had some seriously - some intense blunt trauma to that eye so she's more likely to develop a cataract in that eye, although she has no such cataract at the moment. We would be optimistic that we can try to hold the left vision intact, but this is a person who started off in a bad situation with very high pressures in her eyes and now she's probably going to lose one eye, the most useful function of that eye, the right eye, over time so she's left with just one eye now, okay, that we can try to hold together long‑term.

1. The learned trial judge's ultimate conclusions in relation to the evidence concerning Ms Wreford's underlying and accident‑related ophthalmic conditions are set out at [263] above. In reaching those conclusions there is nothing to suggest that her Honour misapprehended the effect of the evidence or that her findings were in error.
2. In particular, while there were certainly ongoing risks to Ms Wreford's vision and her prognosis was in some respects guarded, there was no basis in the evidence for her Honour to find that Ms Wreford would inevitably lose her eyesight in future. Less still could there be any basis to conclude that Ms Wreford would inevitably lose her eyesight as a consequence of the injuries sustained in the accident.
3. Ground 20 must fail.

1. We turn, then, to ground 1 which contends that the assessment of general damages at $125,000 (approximately 30% of a worst case) was manifestly inadequate for the nature of the injuries found by the learned trial judge.[225]
2. In the present case, Ms Wreford clearly suffered serious and life threatening injuries. As the learned trial judge found, in addition to the ophthalmic and psychological injuries detailed earlier in these reasons, those injuries included:[226]

(a) bilateral haemopneumothoraces (collapsed lungs) with the left pneumothorax being under tension;

(c) fractured ribs on the left (numbers 3, 5 ‑ 12) and on the right (3 ‑ 10);

1. Ms Wreford required extensive treatment for these injuries and she was left with residual disabilities. The residual difficulties include an inability to breathe deeply, which causes her restrictions on activities. Ms Wreford also has residual restriction of movement and pain in the left shoulder.[227] At the time of trial Ms Wreford's most incapacitating injury was psychological: post‑traumatic stress disorder and anxiety.[228]
2. Ms Wreford's injuries have also left her with cosmetic deformities and scarring in the thoracic area. The learned trial judge found that, although her cosmetic injuries are not (compared with other such injuries) gross or extensive,[229] Ms Wreford is very conscious of them and they are keenly felt by her.[230] The learned trial judge clearly took into account Ms Wreford's subjective response to those injuries in assessing her non‑pecuniary loss.
3. In those circumstances Ms Wreford was entitled to a substantial award for her non‑pecuniary loss.
4. An award of $125,000, however, particularly in light of the prescribed statutory maximum, is a substantial award of general damages. It is not, as Ms Wreford submitted at the hearing of the appeal on 'the lower end'.[231] On the contrary, in our view it is an award of general damages appropriate to an assessment of non‑pecuniary loss approaching the mid‑range in severity. That was, in our view, an assessment open to the learned trial judge in the present case.
5. In that regard, in assessing the severity of non‑pecuniary loss as a proportion of the maximum amount that may be awarded, it must be recognised that the range of severity is very broad indeed. That range includes, at the higher end, non‑pecuniary loss arising from injuries such as quadriplegia, paraplegia, serious brain damage and chronic serious pain. In the present case, the severe nature of the accident (being run over by a four wheel drive car) could well have led to injuries of this nature or even death.
6. Perhaps surprisingly in the present case, Ms Wreford was spared lasting injuries of this kind. And, not to underestimate in any way the significant and ongoing effects that the accident has had, and will continue to have on her, given the severity of the accident, Ms Wreford recovered remarkably well. Indeed, it is a testament to Ms Wreford's fortitude that, as the learned trial judge found, she had regained much of her personal independence from six weeks after such a horrific accident.[232]
7. It was necessary in those circumstances, in placing Ms Wreford's case within a broad scale of severity in arriving at an appropriate sum for general damages, for the learned trial judge to carefully weigh up the seriousness of Ms Wreford's initial injuries, the degree to which she had been left with residual disabilities and the relatively good recovery she made from what could have been a far worse outcome.
8. In assessing damages in such a case, reasonable minds may legitimately differ as to precisely what sum should have been awarded for non‑pecuniary loss. The issue in the appeal is not whether, had we been assessing Ms Wreford's damages, we would have made a higher award in that regard. It is whether the amount assessed is outside of the limits of what a sound discretionary judgment could reasonably adopt.
9. In all of the circumstances, in our view, it cannot be said that the learned trial judge's assessment of Ms Wreford's non‑pecuniary loss as being 30% of the maximum amount that may be awarded was outside of those limits.
10. Ground 1 must fail.

1. Ground 12 relates to the costs orders made by the learned trial judge following trial.
2. Judgment was entered against Mr Lyle on 19 December 2018. The final orders were:
   1. Judgment be entered against the defendant in the sum of $458,178.80.
   2. The defendant do pay the plaintiff's costs of the action against the defendant up to and including 8 November 2016.
   3. The plaintiff do pay the defendant's costs of the action thereafter.
3. The costs order in favour of Mr Lyle in relation to costs incurred after 8 November 2016 was made pursuant to O 24A of the Rules of the Supreme Court. At the time of delivery of judgment, the learned trial judge was advised that Mr Lyle had made an offer of compromise in the sum of $500,000. Counsel for Ms Wreford accepted that the judgment fell short of the offer and that O 24A r 10 applied.[233]
4. There was some exchange between counsel and the learned trial judge as to the terms of the offer, and the extent to which it included past expenses. Her Honour was advised that the major expenses had all been paid at the time of the offer. Counsel for Ms Wreford again advised her Honour that he had satisfied himself as to the effect of the offer and that it was at a level that the 'judgement hasn't met'.[234]
5. There was, therefore, no issue before the learned trial judge that in accordance with O 24A r 10 Mr Lyle was entitled to his costs from the date of the offer 'unless the Court otherwise orders'. Counsel relied upon that general discretion to depart from the usual rule on the basis that Ms Wreford 'came close to meeting the offer' and had 'convinced herself that there was no prospect of a finding of liability against her'.[235]
6. The learned trial judge did not accept that these matters were a proper basis for departing from the result that should ordinarily flow from the operation of O 24A r 10.
7. In our view, no error is revealed in her Honour so concluding.
8. At the hearing of the appeal Ms Wreford also submitted that the terms of the offer (and in particular that it was exclusive of the amounts that had already been paid out for her benefit) were not discussed or explained to her.[236] She did, nevertheless, accept that she understood the offer to be that if '[she] accepted it, [she] would walk away with $500,000 in the hand'.[237] In those circumstances there does not appear to have been any misunderstanding on her part as to the practical effect of the offer.
9. In any event, an allegation that, as a consequence of advice from her solicitors, Ms Wreford misunderstood the effect of the offer, could not reveal any error on the part of the learned trial judge.
10. Ground 12 must fail.

1. Ms Wreford has been unsuccessful on all grounds. The appeal must be dismissed.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Chief Justice Quinlan

[1] Wreford v Lyle [2018] WADC 173 (Primary reasons).

[4] The present case also concerns damages to which the Motor Vehicle (Third Party Insurance) Act 1943 (WA) applies (namely damages in respect of bodily injury to a person directly caused by the driving of a motor vehicle). While there are certain provisions of the Civil Liability Act that are excluded from a case to which Motor Vehicle (Third Party Insurance) Act applies, the general principles in relation to liability found in pt 1A of the Civil Liability Act are not excluded provisions.

[5] Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, s 4.

[6] Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334 (Joyce v Anderson) [170] ‑ [172] (Mitchell JA).

[7] See Gordon v Truong [2014] NSWCA 97; (2014) 66 MVR 241 [15] ‑ [18].

[12] Primary reasons [98]. Trial ts 78. See also appeal ts 50.

[16] We note that Primary reasons [13(5)] states: '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?' (emphasis added). The word 'future' is a typographical error; in context it is clear that the learned trial judge meant 'failure'.

[20] Trial ts 77. Primary reasons [19].

[22] Trial ts 77 ‑ 78, 250. Primary reasons [20], [22].

[25] Trial ts 391. Primary reasons [76].

[26] Trial ts 391 ‑ 392. Primary reasons [76].

[27] Trial ts 388. Primary reasons [76].

[28] Trial ts 404. Primary reasons [77].

[30] Trial ts 408. Primary reasons [78].

[33] Trial ts 375. Primary reasons [80].

[36] Trial ts 379. Primary reasons [80].

[37] Trial ts 380. Primary reasons [81].

[46] Primary reasons [103] ‑ [113].

[56] Primary reasons [201] ‑ [202].

[58] Primary reasons [25]. Trial ts 42 ‑ 43.

[59] Primary reasons [26]. Trial ts 45 ‑ 48.

[60] Primary reasons [27]. Trial ts 48 ‑ 49.

[61] Primary reasons [28]. Trial ts 50.

[62] Primary reasons [29]. Trial ts 54 ‑ 56.

[67] The Plaintiff's Particulars were provided to the learned trial judge during closing submissions.

[68] Plaintiff's Particulars [3.1] ‑ [3.6].

[69] Primary reasons [235]. The date of the accident was only 18 days prior to the end of the financial year ending 30 June 2013. The earnings for that year may appropriately be regarded as reflecting Ms Wreford's earnings for the year prior to the accident.

[78] See Grounds of Appeal [10(A)]. See also Primary reasons [234].

[81] Grounds of Appeal [13A], WAB 24.

[82] (WAB 30). Ground 20 refers to 'the certainty near future loss of the right eye the possibility of the left eye'.

[83] Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208 [93] ‑ [96] (Quinlan CJ, Murphy & Pritchard JJA); Joyce v Anderson [105] ‑ [108], [128] ‑ [130] (Mitchell JA), [206] ‑ [211] (Beech & Vaughan JJA); East Metropolitan Health Service v Ellis [2020] WASCA 147 [26] (Quinlan CJ, Mitchell & Beech JJA).

[84] Wreford v Lyle [2019] WASCA 57 (Murphy & Pritchard JJA); Wreford v Lyle [No 2] [2019] WASCA 144 (Wreford v Lyle [No 2]) (Murphy & Mitchell JJA).

[85] University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481, 483 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); Fremantle Lawyers Pty Ltd v Sarich [2019] WASCA 48; (2019) 54 WAR 113 [231] (Buss P).

[86] As to which see Criminal Appeals Act 2004 (WA), s 30(3)(c).

[87] Durani v The State of Western Australia [2012] WASCA 172 [111] (Mazza JA; McLure P and Buss JA agreeing).

[88] District Court of Western Australia Act 1969 (WA), s 79.

[89] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14] (Gleeson CJ, Gaudron & Hayne JJ).

[90] Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 343 (Deane & Dawson JJ).

[91] Paul v Rendell (1981) 34 ALR 569, 571.

[92] Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336, 381 (Mason J).

[93] Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30 [96] (Buss JA).

[94] Smith v Zhong [2015] WASCA 202; (2015) 49 WAR 215 (Smith v Zhong) [96] (Murphy JA, Buss & Newnes JJA agreeing).

[95] State Government Insurance Commission v Hitchcock (Unreported, WASC (FC), WA Library No 970089A, 11 March 1997), 13 ‑ 14; (Ipp J, Wallwork & White JJ agreeing); Smith v Zhong [120] (Murphy JA, Buss & Newnes JJA agreeing).

[96] See e.g. Primary reasons [259], [260] ‑ [265].

[99] The gravamen of ground 19 was not entirely clear, although it was apparent from the written submissions in relation to that ground that it concerned Ms Wreford's account of the car driving over her head. The submissions in relation to ground 19 expressly incorporated the submissions in relation to ground 7 (see WAB 61).

[101] Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 [18] (McHugh J).

[102] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 (March v E & MH Stramare), 511 (Mason CJ). See generally Alford v Magee [1952] HCA 3; (1952) 85 CLR 437.

[103] Fleming's The Law of Torts (10th ed, 2011) [12.50].

[104] March v E & MH Stramare, 514 (Mason CJ); Fleming's The Law of Torts (10th ed, 2011) [12.60].

[105] Trial ts 375. See [41] above.

[108] Primary reasons [101]. It should be noted that the learned trial judge considered that, even if there was other traffic on Mill Point Road, Ms Wreford's manoeuvre would not have been free of risk (Primary reasons [106]).

[109] Primary reasons [69] ‑ [70].

[113] Alchin v Commissioner for Railways [1935] NSWStRp 23; (1935) 35 SR (NSW) 498, 509 ‑ 510 (Jordan CJ); R v Fraser [1995] SASC 5335; (1995) 65 SASR 260, 265 ‑ 266 (Doyle CJ).

[119] Trial ts 220 ‑ 221 (Dr Goodheart); trial ts 331 ‑ 332 (Professor Sikorski).

[123] O'Connor v Insurance Commission of Western Australia [2016] WASCA 95 (O'Connor v Insurance Commission of Western Australia).

[124] House v R [1936] HCA 40; (1936) 55 CLR 499.

[125] O'Connor v Insurance Commission of Western Australia [59] ‑ [63] (Buss JA; McLure P & Mazza JA agreeing).

[126] O'Connor v Insurance Commission of Western Australia [64] (Buss JA; McLure P & Mazza JA agreeing).

[136] Tomlinson v Tomlinson [1980] 1 All ER 593, 596.

[137] Wreford v Lyle [No 2] [9.2] (Murphy & Mitchell JJA).

[138] Wreford v Lyle [No 2] [12.2] (Murphy & Mitchell JJA).

[144] Trial ts 530. Counsel refers, by reference to a minute of proposed orders to agreed special damages of '$94,000' It is clear in context that that is a reference to the sum of $94,242 referred to by her Honour at Primary reasons [266].

[148] Grounds of Appeal [13A], WAB 24.

[150] Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 5.

[152] To these weekly amounts the Plaintiff's Particulars applied the 6% multiplier for 39 years (up to Ms Wreford's life expectancy of 88 years.

[153] Primary reasons [255], [256].

[154] The Plaintiff's Particulars calculated $7.50 as reflecting the weekly rate for four annual reviews. The $6.92 figure adopted by the learned trial judge was more accurate ($90 every three months = $360 per year = $6.92 per week).

[157] Plaintiff's Particulars [6.5].

[163] See trial ts 517 and Primary reasons [261].

[164] See trial ts 517 and Primary reasons [261].

[165] Western Australia, Government Gazette, No 41 (23 March 2018) 1034.

[166] Primary reasons [261] ‑ [263].

[168] Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 (Husher v Husher) [7] (Gleeson CJ, Gummow, Kirby & Hayne JJ).

[171] Primary reasons [234] ‑ [235].

[174] Husher v Husher [6], [7] (Gleeson CJ, Gummow, Kirby & Hayne JJ).

[179] See Primary reasons [248] and Plaintiff's Particulars [1.8].

[180] Primary reasons [245] and Plaintiff's Particulars, Recital [F].

[182] Plaintiff's Particulars [3.1] ‑ [3.6].

[183] Primary reasons [67] ‑ [68].

[184] Primary reasons [237], [251].

[187] Primary reasons [225] ‑ [226].

[188] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 643 (Deane, Gaudron & McHugh JJ).

[195] Primary reasons [229]. This finding went further than the Plaintiff's Particulars which accepted a retained capacity of 30% for part‑time light work (see Plaintiff's Particulars [3.5]).

[196] Primary reasons [257] ‑ [258] and Plaintiff's Particulars [6.3].

[197] Primary reasons [61] ‑ [62].

[199] Primary reasons [212]; exhibit 1, 177.

[200] Primary reasons [63]; exhibit 1, 177.

[202] Primary reasons [62]; exhibit 1, 84 ‑ 89.

[203] Primary reasons [62]; exhibit 1, 82, 86.

[210] Primary reasons [184]; exhibit 24 (GAB 119).

[212] Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C(2).

[213] Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 343 (Deane & Dawson JJ).

[214] Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57, 72 (Windeyer J).

[215] Lee Transport Co Ltd v Watson [1940] HCA 27; (1940) 64 CLR 1, 13 ‑ 14 (Dixon J).

[217] Primary reasons [225] ‑ [226].

[219] Thomas v Bass [2006] WASCA 59 [43] (Le Miere J, Murray & E M Heenan JJ agreeing); Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402, 412 (Gibbs CJ & Wilson J).

[229] Her Honour described the scarring as neat, fine and not very obvious: Primary reasons [58].