Bevan v Coolahan - [2018] NSWDC 410 - NSWDC 2016 case summary — Zoe

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Bevan v Coolahan

[2018] NSWDC 410

District Court of NSW|2016-10-10|Before: Kirby P, Meagher JA, Spender AJ

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At a glance

Source facts

Court

District Court of NSW

Decision date

2016-10-10

Before

Kirby P, Meagher JA, Spender AJ

Source

Original judgment source is linked above.

Judgment (54 paragraphs)

[1]

Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 McCracken v Smith [2013] EWHC 3620 QB McGuinness v Kellog Co of GB Ltd [1988] 2 All ER 902 McPherson v Whitfield [1996] 1 Qd R 474 Merhi v Ford Motor Company of Australia Ltd [2014] VSCA 328 Miller v Galderisi [2009] NSWCA 353 Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 Mundy v GIO of New South Wales (Supreme Court of New South Wales, Spender AJ, 5 June 1995) Naylor v Preston Area Health Authority [1987] 1 WLR 958 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 Oliveri v Administrative Appeals Tribunal (1997) 50 ALD 190 Osland v R (1998) 197 CLR 316 Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204 Quine v Keerasawat [2014] WADC 150 Rashid v Munir & Ors [2018] EWHC 1258 Re Applicant and Deputy Commissioner of Taxation (1995) 41 ALD 683 Robbins v Harbord (1994) 62 SASR 229 Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474 Vale v Eggins (2006) 46 MVR 514 Watson v Meyer [2013] NSWCA 243 Wells v Council of City of Orange (No 2) [2017] NSWSC 510 Wills v Bell & Ors [2002] QCA 419 Woodcroft-Brown v Timbercorp Securities Ltd (in liq) [2011] VSC 427 Yates v Jones (1990) Aust Torts Reports 81-009 Yip v Zreika (2001) 35 MVR 305 Texts Cited: Australian Law Reform Commission, Uniform Evidence Law (ALRC 102) Dietrich, J., "Papers from the Tort Law Academic Workshop: Teaching torts in the age of statutes and globalisation" (2010) 18 TLJ 141 Goudkamp, J., "The Defence of Joint Illegal Enterprise" (2010) 34 Melbourne University Law Review 425 Kwai, I., "What he did on his Summer Break: exposed a worldwide security flaw", New York Times, 30 January 2018 Category: Principal judgment Parties: Plaintiff: Chloe Bevan First Defendant: Jake David Coolahan Second Defendant: Kurt John O'Connell Representation: Counsel: Plaintiff: Mr M Maxwell Defendant: Mr J Poulos QC / Mr B Wilson

[4]

A series of adjournments

The hearing of these proceedings has been complicated by a series of adjournments, some of which arose from the plaintiff's urgent surgery after the hearing had commenced, and others of which arose as a result of issues in the litigation. These delays had a significant impact upon the hearing.
First, after completing her evidence on 6 October 2016, the plaintiff collapsed in the street in pain and was taken to hospital. A CT of her thoracic spine showed a fractured L2 pedicle screw and L3 screw lucenty. Her admission to hospital for further surgery required the hearing to stand over part heard for more than a year.
The plaintiff's state of distress during her evidence in October 2016 was immediately understandable in light of her deteriorating health. The likelihood of the plaintiff having "new" medical problems (T 1) had been the subject of a report dated 29 September 2016 referring to the plaintiff having a perineural cyst, which was shown to the court before the case was even opened. Counsel for the plaintiff explained these new medical problems as follows: "MAXWELL: I also have a problem at this stage which I should indicate to your Honour. The plaintiff in this case has a significant back injury and it's just come to our attention this morning in fact that a recent ultrasound has shown some new problems in the back. There's apparently a perineural cyst, they describe them as post-surgical changes. Perhaps I should hand you a copy of this document. HER HONOUR: Have you seen this? What's your position? POULOS: I have. It doesn't worry me. HER HONOUR: You have or you haven't? POULOS: I have. HER HONOUR: Is it a problem for you? MAXWELL: It may not worry Mr Poulos but it worries the plaintiff because the prospect is that there's some further investigation required and some deterioration in the back. She's got noticeable lumps on her back now from the cysts and this has only just been - has only just come to my attention. There has been an ongoing problem for the last couple of months with her back and a deterioration and she's now suggesting that she would like it properly investigated. HER HONOUR: You're asking for an adjournment aren't you? MAXWELL: Well there's that, yes, probably. I'm not sure I have those instructions. HER HONOUR: That's what I really meant when I said that. MAXWELL: I don't have those instructions yet. This only came to light this morning. HER HONOUR: Well what do you want me to do about it? You either want an adjournment or you don't. MAXWELL: I've asked her for instructions. We're just getting some instructions now. HER HONOUR: The thing is that this is dated when, 29 September. Well I don't know anything about perineural cysts. POULOS: Let me just put the defendant's position. There's no doubt this girl had a severe injury, an orthopaedic injury which will create need for - which created a need for surgery and the situation is clearly set out in the medical reports my learned friend has served on us. The old saying in medicine is you don't treat X-ray pictures and this is an X-ray picture unexplained and we are here today to conduct this case on the basis of liability, and liability is very much in issue. … POULOS: There's a copy of the amended defence. HER HONOUR: Would you mind making copies? Before she goes, would you just hand to her your green sheet documents, your chronology, your statement of issues and your schedule of damages? In relation to this back problem, we'll deal with it - the thing is this. If liability is the hot issue, we'll just do as much as we can and if it's necessary for there to be some further evidence in relation to this problem then we'll sort it out. MAXWELL: I'm happy with that. There's no application to adjourn, I can tell you. HER HONOUR: Well in that case let's just get on with it. If it turns out that some doctor says look this is really serious, then what we'll do is that portion of the evidence can be adjourned. I mean that's what the Court of Appeal said in that recent appeal from my colleague Judge Gibb, that she'd done the right thing in hearing the rest of the case but just giving them I think it was a three month adjournment." (T 1 - 3)
Unfortunately, as the plaintiff's subsequent admission to hospital for further surgery demonstrated, both counsels' hopes that the hearing would be able to proceed were as misplaced as the parties' three-day estimate (which I note was common to both parties, and was confirmed by Mr Poulos QC at T 2). The plaintiff's surgery occurred on 9 October 2016; the hearing was adjourned part-heard the following week, and then stood over on a series of occasions to monitor the plaintiff's progress. It was not until 17 February 2017 that the proceedings were even able to take a hearing date. Even then, the proceedings could only be listed for hearing on 27 November 2017.
Once again, the proceedings were given a three- to four-day estimate, to enable the hearing of the remainder of the evidence. Once again, this was an underestimate.
There were other problems. During the period of time between the setting down of the hearing date and the hearing date, an application was brought by the defendants for the hearing of separate proceedings commenced by Ms Davey, who was another passenger in the motor vehicle accident, in 2016 at the same time. The lateness of this application meant that it would almost certainly result in the vacating of the adjourned hearing date, a position considered undesirable by either party, and the application was abandoned. Additional expert evidence was served by the defendants, and the admissibility of this evidence created further difficulties when the hearing resumed.
The November 2017 hearing had to be adjourned again, as the time estimate referred to in paragraph 6 above was wholly inadequate. The evidence took a further eight days, following which there was a second adjournment, to March 2018, for submissions, the lateness of which was due to counsels' unavailability.
The hearing of submissions could then not be completed in March 2018 because of fresh evidence, in the form of social media documentation showing the plaintiff conducting a transaction for the sale of the drug ecstasy on social media early in 2018. The plaintiff had previously denied such activities. The defendants sought leave to reopen their case. Leave was granted and Exhibits L and 22 were admitted by consent. The plaintiff also sought leave to rely upon certain reports not served by the defendants despite not having "served back" these reports. Further submissions were required.
As a result of all of these delays, judgment could not be reserved until 2 May 2018, when the plaintiff provided her final Reply Submissions.
These delays, individually and in combination, due to circumstances beyond the control of case management, have made the task of determining the issues more difficult than usual.
However, the real difficulty has been the parties' failure to identify the issues at the outset by compliance with the Standard Orders for Hearing requiring that the issues in the case be delineated in the Schedule of Issues. Significant evidentiary and legal issues raised by both parties in the submissions were neither set out in the Statement of Issues nor identified during the trial. In particular, submissions on liability by the plaintiff underwent a series of changes and variations, and it was unclear which of these variations were relied upon and which (if any) were withdrawn. The delays caused by the plaintiff's health issues, inaccurate time estimates and the application to reopen the case in March 2018 have merely exacerbated these difficulties.

[5]

The circumstances of the accident

The plaintiff, the first defendant, the second defendant and a third person (Cara-Lee Davey), were friends of approximately the same age and who had the same interests. They all lived close to each other, and at times with each other. A significant bond between them was that they purchased and shared illegal drugs on what I have found to be a regular basis.
The accident the subject of this litigation occurred following the last in a series of transactions for the obtaining (including obtaining by purchase on one occasion) and ingesting of drugs over the night and early morning of 8 - 9 August 2013. The plaintiff, the two defendants and Ms Davey had participated over several hours in the taking of drugs. They left Ms Davey's residence in the second defendant's car, under the influence of cannabis and crystal methamphetamine, for the purpose of driving first to the plaintiff's residence to obtain an item to be exchanged for more drugs and then to the home of a drug dealer to obtain more drugs. Although it appears that the intention of the group was to return to Ms Davey's residence to continue taking drugs, the group stopped near the Bunnings car park at Glendale, where they ingested more drugs before returning to her home to continue taking the drugs they had not yet consumed.
At about this time the first defendant began asking the second defendant to be allowed to drive the motor vehicle. The second defendant permitted him to do so and the first defendant immediately began to have difficulties controlling the vehicle. There is conflicting evidence as to whether one or all of the passengers (T 29) called for him to slow down. The plaintiff stated the first defendant was speeding, but the critical speed as measured by the police (Exhibit 17) suggests that other factors, rather than speed, were the reason for loss of control of the vehicle.
As the first defendant drove the second defendant's vehicle west along Tillie Street, travelling around the sweeping bend onto Sandgate Road, Wallsend, he overcorrected and collided with a telegraph pole opposite the Matilda petrol station.
The plaintiff was wearing a seatbelt but had put her legs across the seat where the second defendant was sitting. She told the court that this was because he was not wearing a seatbelt. She was thrown partially out of the vehicle and suffered serious injuries.

[7]

The issues in the case

The issues in the case were not appreciated by the parties until well into final submissions. As a result, some of the matters addressed by the parties in the course of the hearing or in submissions (for example, the plaintiff's submissions concerning statutory defences and whether there would be an application to amend the defence) were asserted by the defendants to be misconceived. Other issues, such as reliance by the plaintiff on occupational therapy reports which were not tendered by the defendants, were not raised during the hearing at all, and were only made during submissions.
Doing the best I can, in terms of distilling the issues from the final submissions, these are as follows: 1. Whether the plaintiff was, in terms of the common law defence (not s 54 Civil Liability Act 2002 (NSW) ("the Act")) of joint illegal enterprise, a party to any criminal conduct, let alone a joint illegal enterprise in criminal law. 2. Whether the principles enunciated by the High Court in Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 extend beyond the use of a vehicle for an illegal enterprise (Godbolt v Fittock (1963) 63 SR (NSW) 617) to offences committed where the use of a vehicle is not necessarily a feature of the criminal offence (Jackson v Harrison (1978) 138 CLR 438). 3. Whether the defendants' denial of duty of care on the basis pleaded (namely joint illegal enterprise) is made out on the facts of the case, having regard to the particulars provided. 4. Whether the defendants are entitled to rely upon the common law principles in relation to joint illegal enterprise, or whether s 54 of the Act covers the field in regulating the common law defence of illegality in New South Wales. 5. Whether, in the absence of any pleading of the relevant statutory provision in the Act, the defendants are entitled to plead or rely upon s 54 and/or the common law defence (r 14.14(2) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"); Watson v Meyer [2013] NSWCA 243 at [77] - [83]; Hall v Van der Poel [2009] NSWCA 436; Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204). 6. Whether the plaintiff may be taken to have waived any objection to the requirement to plead s 54 (Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206). 7. Whether, if the defendants are entitled to rely upon s 54, the plaintiff's illegal conduct materially contributed to her injuries (s 54(2)(b)) and whether the conduct of the first and/or second defendant is material (s 54(2)). 8. Whether, if the defendants are entitled to rely upon the common law, the plaintiff was a party to a joint illegal enterprise. 9. Whether any of the particulars of contributory negligence are made out. 10. The plaintiff's claims for damages, including past and future economic loss, gratuitous care, out-of-pocket expenses and non-economic loss, all of which are the subject of dispute. This included, particularly in relation to economic loss and gratuitous care, the credit of the plaintiff as a witness. 11. Whether the plaintiff was entitled to rely upon reports served by the defendants but not "served back" by the plaintiff.

[8]

The circumstances leading to the motor vehicle accident

I make three preliminary observations as to the evidence of the plaintiff and of the witnesses generally: 1. Apart from the plaintiff's mother and grandmother, all the other witnesses (including those called by the defendant) were contemporaries of the plaintiff, who is now 23 years of age, and all participated in the regular taking of drugs. There was a history of angry disputes between some of them, and they behaved accordingly in court (for example, the plaintiff's current partner had a confrontation with the second defendant during a recess in the hearing and the plaintiff had a series of confrontations with Mr Poulos QC). I consider it necessary to show a degree of flexibility and understanding of such conduct. 2. Admissions were made in the course of their evidence as to the sale and use of drugs. All of that evidence is the subject of certificates under s 128 Evidence Act 1995 (NSW). I have not made any value judgment of any witness by reason of participation in such activities. 3. As noted above, the plaintiff became ill shortly after giving evidence on 6 October 2016, and the medical evidence suggests she must have been in considerable pain while giving her evidence over the first three days of the hearing. I have treated the evidence she gave immediately prior to entering hospital for emergency surgery with a great deal of caution, on the basis that she was not at her best at this time, in that she was in increasing pain and distress.
There are, however, other issues to which the credit of the witnesses is relevant, namely the truthfulness of their answers, particularly in relation to the plaintiff, who denied any significant drug use in her examination in chief and portrayed herself as a person with a strong work ethic who was in regular employment. The credit of the second defendant (and in particular his evidence concerning the plaintiff's drug-related activities) was the subject of strong attack.
In my findings as to the credit of witnesses, I have made observations as to their credit, but those findings are not based on the observations set out above. The fact that a witness takes drugs, or behaves foolishly in the course of proceedings for the reasons set out above, would have only peripheral relevance to such findings.

[9]

The plaintiff's evidence

The plaintiff commenced her examination in chief with a resolute denial of any drink or drug problems. She said that she had only consumed alcohol "a couple of times" and "didn't really ever like to drink" (T 16) and that her experience with drugs was "the same with the alcohol, just sort of, you know, around a big group of people or at a party, yeah" (T 16).
This was not a good start to evidence of the events on the day in question, which consisted of descriptions of the plaintiff and her friends travelling around in the second defendant's car over an extended period looking for and consuming drugs, and then going in search of more.
The plaintiff said that on the night of the accident, the first and second defendants had turned up at her home between 5.00 and 6.00pm. She described the defendants as "just friends" (T 17). She got into the second defendant's motor vehicle (which the second defendant was driving) and they drove to Mount Sugarloaf where "Kurt got out this little bag that he had which contained drugs in it" (T 17). She said that "then Kurt started smoking this thing that he called a pipe" (T 17) and he passed it to her and said "Would you like some?", and then "just gave it to me and yeah, just put it in my face and I was like, "oh okay", and then I just had two little tokes on it, like two little puffs of it, yeah". She said that this was all that she consumed (T 18). The first defendant then had some drugs, although the plaintiff then corrected this to say he had smoked "cigarettes" (T 18), qualifying this by adding that she "didn't really pay attention to what he was doing" as she was "on my phone and stuff" (T 18).
They all sat in the car and talked for about half an hour after they had completed smoking the drugs, and at that stage began smoking cigarettes. For the last 30 minutes that they were on Mount Sugarloaf they were "just smoking cigarettes and talking to each other, yeah" (T 19). She said that Kurt "seemed fine to me" as they drove off to Ms Davey's home at Shortland. It took approximately 30 to 40 minutes to get there and when they arrived, they were "all sitting in the lounge room together, just watching TV, smoking cigarettes and yeah" (T 20-21).
The plaintiff described what happened next as follows: "A. And then Cara-Lee had some cannabis in her possession and she said she was going to share that out through the group and that's what she did. Q. How was that-- A. It was only a small amount, yeah. Q. How was that done? A. She chopped, she chopped it with tobacco and then shared it around, yeah. Q. How much of that did you have? A. Only two small amounts, yeah, in the-- Q. You described those as cones, do you? A. Yeah, yeah. Q. How long after you arrived at Cara-Lee's place was it that you did that? A. It was pretty much straight away, yeah. Q. Did you notice-- A. As soon as we got there, it was in like probably 15, 20 minutes that, yeah. Q. Did you notice if Jake or Kurt had any cannabis? A. Yes. We all had some but I didn't notice. Like I wasn't paying any attention to how much they had or anything like that. I just, yeah. I seen, I seen them both at least have one, yeah. Or two, yeah. Q. Did you then just stay at Cara-Lee's place? A. Yeah, yeah. Q. For how long? A. Hours and hours. We were just hanging out there for the night, yeah. Q. What was happening then as you were hanging out, as you say?A. We were just sitting in the lounge room, watching TV, and smoking cigarettes and yeah, not doing much really and just talking and, yeah." (T 20.3-.39)
The plaintiff described how she left Ms Davey's home as follows: "Q. At some stage, did you leave Cara-Lee's place? A. Yes. Q. Do you recall what time that was? A. It was roughly about 2 in the morning, say, yeah. Q. Where did you go to? A. We went to my parents' place. Q. Why did you go there? A. I had to get some clothes because I was in my pyjamas and stuff, yeah. Q. Who was with you on that trip? A. Kurt O'Connell, Jake Coolahan, and Cara-Lee Davey. Q. Who was driving at that time? A. Kurt O'Connell. Q. Did you notice anything usual about Kurt's driving at that time? A. No, he was fine. Q. Did you notice anything unusual about Jake at that time? A. No, I think we were all pretty okay. It had been hours and hours since we'd had anything. We were fine, yeah." (T 21.41-22.14)
She then described how they came to visit the premises at Argenton where the drug dealer lived: "Q. Well then from your place where did you go? A. Kurt decided to go to Argenton to get smokes. … Q. So you wanted to get a packet of cigarettes from the service station. A. Yeah. MAXWELL Q. When you went - I'm just diverting, when you back to your place did you pick up anything else apart from your clothes? A. No, I was looking for my - Cara-Lee wanted to borrow my Navman, I was looking for that, but I just got my clothes and that was it, yeah. HER HONOUR Q. She wanted to buy your what? MAXWELL: Navman. WITNESS: My Navman. MAXWELL Q. So you arrived at the 7-Eleven at Argenton. A. Yeah, yep. Q. And did you remain in the car or what did you do? A. No, me, Kurt O'Connell and Cara-Lee Davey got out and we went into the service station together and bought smokes, yeah. Q. What happened to Jake? A. Jake said, "I'll be back; I'm going to Crystal's(?)." Q. And-- A. And he just took off out of the car while we were at the service station, yeah. …" (T 22.16-23.23)
The plaintiff said she did not know who the person "Crystal" who lived there was. She described how when they got back into the car she sat in the back left passenger seat while Kurt sat in the driver's seat. There was a conversation between the first and second defendants after they left the service station at Argenton as follows: "Q. And where did you go from there? A. We were going back to Cara-Lee's house. Q. So after you'd been travelling for a period of time was the car stopped? A. Yes. Q. Did you hear a conversation before the car was stopped? A. Yes. Q. And can you relate that conversation and between who it was? A. Yes. Yes. Between Jake Coolahan and Kurt O'Connell. Q. Who spoke first? A. Jake Coolahan. Q. And what did he say? A. He said, he said, "Can I drive?" I think that's all he said, yeah, just "Can I drive?" Q. To? A. To Kurt O'Connell, yeah. Q. And what did Kurt say? A. Kurt said, "Yes." Q. So-- A. Very casually, yeah. Q. What happened then? A. And then, so yeah, we pulled over, and then Kurt O'Connell got out of the driver's seat and Jake Coolahan got into the driver's seat and proceeded to drive from there. Q. So at that time did you notice anything unusual about-- A. Not at all. Q. --Jake? A. No. Not at all. Q. So do you recall where it was that the car stopped? A. Yes, I do. Q. Where was it? A. It was just on Lake Road. I know the exact spot, I can't ever get it out of my mind. Yeah. Q. So where did Kurt go when Jake took over the driving? A. He jumped into where Jake was sitting, yeah." (T 25.5-26.2)
The plaintiff said that she was wearing a seatbelt but that the second defendant, who was now sitting in the back seat beside her, was not (T 26). She said that the first defendant was "driving fine, at first", but about three minutes later he began speeding up at the end of Longworth Avenue and began driving erratically between Longworth Avenue and Cameron Street, where the plaintiff told him to "slow the fuck down" (T 29).
The plaintiff described the circumstances in which Ms Davey told the first defendant to slow down: "A. And then he kept speeding up and coming in around - sorry, I'll just refer to the map. Cameron Street's there. Come round the corner on Cameron Street and Tillie he sped up to the next corner; Cara-Lee told him to slow down. We both knew the area very well. And as he come around the corner going fast, I think he was trying to do a burnout, I don't know what he was doing, but he was driving erratically, and as he come around the corner, the car like flung sideways and like, and like went up and over the medium(as said) strip and it looked like we were going to crash directly head‑on into the service station or into the, the gate or the fence there. And as we swung my legs - 'cause I had my legs resting on a little thing in the back. My legs flung over Kurt and I seen him and those people and I prayed for my life. And then by the time I'd looked up I'd seen Jake Coolahan grab the steering wheel like that and just straight into the telegraph pole. Q. So when you say "grab the steering wheel like that", you're turning-- A. He like-- Q. You're turning-- A. --overcorrected. Q. Please, you're turning it to the left. A. Turning it to the left, yes, sorry. Yeah. And then we crashed into the telegraph pole. And then I just broke(as said)." (T 29.47-30.19)
The plaintiff described the vehicle's speed as follows: "Q. Did you see what speed the vehicle was doing at any time? A. Yes, I looked at the speedometer and from my vision, what I could see as a backseat left passenger, he was going between 65 and 70 ks. Q. And do you recall when that was in relation to the accident? A. Yep, just on the corner, right, right just - if I could point to you(as said) on the map, Tillie Street, sorry. It was literally like on the L of that Tillie Street; it was just on the corner, like he was going very fast. Q. So just as he came into Tillie Street-- A. Just as he came into Tillie Street. Q. --is that what you're saying? A. Yes. Q. Is that when you said what you said? A. Yeah, that's, that's when I said what I said. Sorry about the foul language. Q. So did you see what the car hit? A. Yes, I did. Yeah, I was fully awake, I've seen everything that happened. Q. What did it hit? A. It hit a telegraph pole. Q. In relation to the service station on one side where was the telegraph pole? A. The service station is on the right hand side, and the telegraph pole is on the left hand side. Q. What happened to you at that stage? When it hit the telegraph pole? A. I felt my body just snap, crunch. I was, I was completely paralysed, couldn't move my legs, I had no feeling in my legs." (T 31.28-32.8)
The plaintiff was assisted from the car by the first defendant, and an ambulance arrived about 10 to 15 minutes later (T 32).

[10]

The plaintiff's cross-examination

In cross-examination the plaintiff said that she consumed two pipes of ice, as did the first defendant, and that the second defendant had consumed three to four pipes (T 91). Her description of her presence in the vehicle and the amount of ice she smoked was challenged on the basis of a text message she sent at 4.39pm on 7 August which said: "Can you get me any Dingas?" (Exhibit 1)
She received a reply in the negative at 4.54pm and a follow-up from the person from whom she requested the "Dingas" at 8.59pm as follows: "What are you chasin [sic] Chloe" To which she replied: "Ice or gear" (Exhibit 1)
When the reply "I'll see how much" was texted, she replied "Ok i [sic] only wanna pay 80 or 90" (Exhibit 1). At 9.16pm she complained that "No one is replyin" and in response to an enquiry as to when she wanted this drug (at 9.54pm) she replied "Should come chill with me and Kurtyboy [a reference to the second defendant]". The reply came "Come get me from Edgy Inited servo" to which Chloe responds "I'll ask him" (Exhibit 1). The next message is one of regret "Chloe I don't know were [sic] to start to say how sorry I am", sent at 2.13pm on 9 August, apparently in response to knowledge of the plaintiff's accident.
On 11 August 2013 the plaintiff responded to this by saying: "You owe me and Kurt $100 for that ice I gotta give you that navman and you gotta get my little brother's iPod back or ill be telling me [sic] dad what happened and he can go round and see your grandpa that clear?!!!" [Grammar corrected] (Exhibit 1)
This was replied to at 9.12pm on 11 August as follows: "Yes Chloe that's clear I will get the iPod for [illegible] no worries and yeah I can do that either on Tuesday if not Wednesday if that's all right."
The plaintiff replied on 11 August 2013 at 11.24pm: "I just can't believe youse [sic] went back and smoked mine and Kurt's ice when we were in hospital ha ha ha lowie [sic] act." (Exhibit 1)
This series of text messages is consistent with the plaintiff's description of having gone to her home to pick up a Navman and some clothes and not an iPod (which she already had with her) (T 106-107). The group stopped at the 7-Eleven at Argenton to obtain cigarettes and the second defendant then went to the home of Crystal, returning with the intention of travelling to Ms Davey's house.
However, the plaintiff's reference to having ice in her possession at the time of her accident - which appears to be the only inference that can be drawn from her complaint about it having been smoked by others - was denied by her in her evidence (T 100-105), when the text messages were put to her one by one. Her responses were essentially that she could not remember: "Q. Can you explain why you would have written a text message saying, "You owe me and Kurt $100"? A. No, I can't explain that. I just said it made my memory worse when you said that. I was remembering the whole thing about messaging Jake until you said that because I don't understand it. I can't remember. This is three years ago." (T 101.39-.44)
She also denied sending certain of the messages: "Q. Let me read it out as being transcribed. "You owe me and Kurt $100 for that ice I gotta give you." Now that's what it says in the message. "For that ice I gotta give you." A. That message has not come from me. That message has not come from me." (T 102.43-.47)
She also disputed the contents of the message: "Q. Did you send that message? A. I don't think so because I really never got that Navman that night. I am telling you the truth. I never got the Navman. You keep saying it and I never got it." (T 103.23-.26)
When asked who could have sent it on her iPhone, she replied: "Q. Who do you say sent it? A. I don't know. That's why I asked - look, and I understand you don't - I don't ‑ you don't have to give me that permission but I'm just saying. I know I sent him a message about the iPod. I know that for a fact. I told you that when you started to talk about it. ..(not transcribable).. I haven't done anything wrong. I'm a victim." (T 103.42-.47)
The plaintiff eventually came to admit sending these messages: "Q. I want to put it to you that Jake responded to that message and you wrote back, "Okay, thank you. Any change you can drop it tomorrow or the next day?" A. I sent that message about the iPod, yes I did. I did send that message. Q. Did you send this message on the same day at 11.24? "I just can't believe youse went back and smoked mine and Kurt's ice when we were in hospital. Ha, ha, ha, lowie act (as said)." A. Yes, I might have said that because I was pretty annoyed at the fact that he had taken my iPod, done that with it, and then I hadn't even got my iPod back and he hadn't contacted me about it or anything. Yes, I was pretty angry, yes. Q. You might have seen that thing I read out was "Kurt and mine ice." A. Yes. Q. So you had ice in your possession that you considered to be yours? A. No, I never. I said after the fact, after the accident, a couple of days later I was really angry. I still hadn't seen my little brother's iPod. So therefore, like, I just claimed ownership of it. I never, ever had any ice in my possession that was mine. I've told you over and over. I have never on that night, the night before, never ever had any ice that was in possession. Not mine, none of it. Q. Yet you use the word "Kurt and mine ice." A. Yes, and I told you why three times now. Q. Why? A. Because I was angry. It was two days later. I hadn't seen my little brother's iPod. I was cranky. I took ownership of it because that's what he took to do with it. You've got to understand where I'm coming from. Q. What happened to yours and Kurt's ice? A. Pardon? Q. What happened to it? A. To what? Q. The ice that Kurt-- A. I have never had any ice. I have told you that several times. Q We're going around and around in circles. A. You can say it over and over. But I'm going to keep on denying it." (T 103.42-104.42)
I note that the same pattern of initial denial, and then admission, also occurred in relation to the social media message the subject of the application for leave to reopen (Exhibits L and 22).
The plaintiff was asked about the sums of money she referred to in the text messages as follows: "Q. How much ice was in the bag? A. I honestly wouldn't have a clue. Q. Well you used‑‑ A. I, I wouldn't know. I didn't see it at all. I never even laid my eyes on that big, never. Q. In the text message you use the amount $100. You remember that? A. Yeah. Q. What did that represent? A. A hundred dollars worth. Q. How much is that? A. A really small amount. Q. When you put your fingers together, are you able to say how it would be measured in the market? A. No well‑‑ Q. What would you call it? A cone or‑‑ A. The thing - like whenever I've seen it and someone's get it and they - it's a hundred dollars worth, it's always like just this little tiny thing. It's‑‑ Q. What shape? A. Sort of looks like - I don't know if you're familiar with like crystals. It looks like a bit - like a clear quartz crystal. Q. And is there a measurement? If you go to a dealer and say, "I want some ice," do they quote the amount that you'll get for a certain amount of dollars? A. I think it - I think it's called a point or something. Q. A point? A. Yeah. Q. And how much is a point in terms of quantity? A. I wouldn't know. Q. How much does it cost? A. Cost - well it's a hundred dollars. That's what I said, I think that's what it is, is a point yeah. Q. So how many‑‑ A. I, I - I'm not really, I don't know much about it. Q. Well you're doing very well so far. A hundred dollars would buy you a point. A. Yeah. Q. How many smokes would a point produce? A. I wouldn't know. I've never gone out and bought one. I wouldn't - how would I know that? I wouldn't. Q. I would suggest that you know that because you bought it frequently. A. I haven't bought it frequently. That's a lie, I have never ever in my life, no. Q. Is there a difference in the amount that you can get for a hundred dollars compared say to marijuana, a hundred dollars worth of cannabis, how much would you get for that? A. I assume you'd get quite a bit because the $20 of cannabis is bigger than the - like from the $20 of cannabis is bigger from the hundred, of the other stuff. I mean I don't know. Q. Is there a standard measurement of buying cannabis? A. Yes. I know that like you buy $20 worth or you buy $50 worth or more but yeah. Q. How much do you get for $20? A. Only a small amount, yeah." (T 109.4-110.23)
The plaintiff said that persons buying drugs would receive a discount for buying more (T 110-111) but said she knew little about buying drugs and "had only ever bought cannabis once" (T 111).
The plaintiff's explanation as to how the figures "80 or 90" appear in the text message were as follows: "Q. You know in that screenshot we showed you where an answer was given, "Okay, I only want to pay 80 or 90"‑‑ A. Yeah. Q. ‑‑was that you seeking a discount then? A. No, that was just - I, I don't know. Like I said, this must've been for someone else. I didn't have any money. So it was probably whoever said, "I'll only pay 80 or 90," and then that's what I've said to Jake. Q. Well it doesn't say anything about somebody else. It just says, "I only want to pay 80 or 90." A. Yes I understand that but it's not - it was never for me. Q. It doesn't say, "My customer wants to pay 80 or 90 or my friend"‑‑ A. I would never write that‑‑ Q. ‑‑"wants to pay 80 or 90." A. ‑‑my - I wasn't like a drug dealer. What the hell. No. You just make that sound so wrong. I was hanging around the wrong crowd of people. Therefore I could get the wrong types of things. If someone asked me for something, I would help them get it because I was hanging around a bad crowd. That's all that this is, like. Q. And when you say "if somebody asked me for something," you mean drugs? A. Yes. Q. And you knew that the people that you hung around with could get it? A. Kurt, Cara-Lee, Matty, yes. Q. So how long had that arrangements - that system been in place of the people‑‑ A. Like I said, I - after my 18th birthday I was probably hanging around them a lot and that's when that all come about." (T 111.30-112.13)
The plaintiff is aware that the second defendant was going to swap the iPod she provided for ice (T 126) but said that it was his decision to do so, not hers (T 157). She was aware at all relevant times that taking drugs was illegal (T 59, 64 and elsewhere). Although initially claiming she did not know that smoking ice could affect people's behaviour (T 65 and 95), she agreed that a drug-affected person probably should not be driving a motor vehicle: "A. Yes, I understand that, yes. Q. You agree with that, do you? A. Yes, I do. Q. Just let's take an assumption here, a hypothetical. Do you know what I'm talking about? A. No, sorry, I don't understand. Q. Just imagine if, right? You've been at Mount Sugarloaf for a period of time of some hours or maybe less - we don't know - during which time someone has been smoking drugs, he gets back into the car. Right? Would you agree that a prudent sensible thing to do would be to say, "Well, I don't know what effect this is going to have on him. Maybe I ought to call it a night." A. I never thought that Kurt would ever put me in danger whilst driving, though. Q. You were prepared to take the risk? A. Well, it wasn't really a risk. I never felt uncomfortable with Kurt driving ever." (T 66.10-.29)
Although the plaintiff dismissed the risk, she had allowed herself to be driven around for some hours by two persons in succession, each whom she had observed taking drugs (T 164) in circumstances where she knew that this was dangerous, where the second of these persons was a young (and likely inexperienced) driver, and all were tired because it was the early hours of the morning.
The plaintiff's case is that she was not the person who suggested leaving Ms Davey's home to obtain an item of value in order to swap it for more ice (T 431), although she admitted she did know that in participating in the obtaining of this illegal product and using it, she was involved in the purchase and use of an illicit drug (T 431). However, the plaintiff denied knowing that using such a drug is the kind of activity which, if prosecuted, could lead to a conviction and possible gaol sentence (T 431).

[11]

The plaintiff's credit as a witness

The principal difficulty with the plaintiff's evidence was her obvious dishonesty about the nature and extent of her drug use. The following is an example: "Q. Did you buy drugs? A. No, I never. Q. Never bought any grass for example? A. Never. I might have put a little bit of cannabis when I was a teenager, but like maybe once or twice, but it's not something - Q. The impression that you're seeking to give her Honour is that you smoked ice for the first time on the evening before your accident? A. No. I said it was actually the second time that I ever tried it, yes. Q. When was the first time you ever tried it? A. It was also with the same people. Q. When was the first time? A. About like a month before that. It, it was like around the same time actually. Q. What were the circumstances in which you tried ice on that first occasion? A. I didn't really know what it was. Someone just gave it to me and I tried it. Peer pressure, that happens when you're a teenager. Q. What effect did it have on you? A. Just made me feel awake, from what I remember. Q. Was Cara-Lee with you when that happened? A. I can't remember. Q. To your knowledge Cara-Lee smoked ice before the accident didn't she? A. I'm not even sure. Q. You're not sure? How long have you know Cara-Lee for? A. I've known Cara-Lee for a long time, since high school, but I don't go asking her, like that sort of stuff." (T 54.11-.44)
The issue of her honesty is central to the defence of joint illegal enterprise and to quantum.
Some of the questions put to the plaintiff may seem unduly invasive, to a person relying only on the transcript. In particular, the plaintiff responded with outrage to cross-examination as to whether she had ever sold drugs for money or purchased drugs using sex, and left the courtroom: "Q. Have you ever sold drugs for money, or money's worth? A. No. Q. Now I'm going to ask you a question. Did you ever sell sex for the purposes of obtaining drugs? MAXWELL: I object. WITNESS: Excuse me, that's Kurt O'Connell. HER HONOUR: Wait a moment, thank you, thank you. MAXWELL: I object to that. WITNESS: This is a fucking joke. That is disgusting. You might want to ask Kurt O'Connell. He's the one that goes on Grindr and sells his dick for money. That is a fucking disgusting thing to say to someone. HER HONOUR: For the benefit for the transcript I can record that the plaintiff has left the room." (T 452.5-.25
The question about the plaintiff selling herself for the purchase of drugs was objected to on the basis that it was put to inflame her and was irrelevant, but I allowed it (T 426.5 - 427.28). Similar questions were put to the second defendant, Kurt O'Connell.
Appellate courts have been critical of judges who permit what they consider to be unnecessary or inflammatory cross-examination. In Let's Go Adventures Pty Ltd v Barrett [2018] NSWCA 243 at [74] and [122] - [126], the Court of Appeal was critical of the first instance court's refusal to reject a question put to a witness that he was a liar which, the Court of Appeal held, was the reason for his being uncommunicative or evasive in his subsequent answers. (The plaintiff and another diver had been on the defendant's boat to go diving when the other diver, unbeknownst to the plaintiff, struck his head on the boat and asked an employee of the defendant if he could abort the dive, which was refused. This other diver was then saved by the plaintiff in circumstances where both suffered injury. It was put to the witness whose role was to supervise the divers going into the water that he lied by denying that this diver had asked him to abort the dive.) The Court of Appeal held that such questions should not have been permitted because of their unfairness, in that it could have been another employee on the boat who refused to let the injured diver get on board, and because this unfairness meant that the witness's ability to give evidence subsequently was compromised, in that his unsatisfactory answers should be seen in this light.
In the present case, the grounds for regarding such a question as unfair are probably even clearer. The plaintiff suffered serious injuries, had a significant pre-existing psychiatric history and was so distressed that on this occasion she ran out of the courtroom, where she could be heard screaming in the corridor. Unlike counsel in Let's Go Adventures Pty Ltd v Barrett, who simply objected in the usual way and when some of the cross-examination put allegations of lying did not object at all, Mr Maxwell objected immediately and firmly, on the basis that these questions were put to inflame the plaintiff. What is more, on more than one occasion when the plaintiff was being cross-examined, she accused Mr Poulos QC of being unfair to her and trying to upset her. Mr Poulos QC's explanation that he was calling two witnesses was less clear than the circumstances in Let's Go Adventures Pty Ltd v Barrett, where the evidence of the other diver and of the plaintiff were already before the court at the time of the ruling, and the injured diver (who had subsequently died) could not be cross-examined on the statement served by the defendant.
There are, however, significant differences. In Let's Go Adventures Pty Ltd v Barrett, the court's findings were made on the basis of the cross-examination, which the court considered meant that the documentary evidence did not need to be consulted (at [126]). In the present case, however, the plaintiff's mobile phone records (Exhibit 1) clearly indicated her leading role in the purchase and consumption of drugs on the night in question. The plaintiff and her friends were on their third trip for the purpose of obtaining drugs, where the origin for the collateral for the purchase of the drugs had been obtained in less than honest circumstances. In addition, part of the attack on the second defendant's credit was that he had sold himself for sex on Grindr, and was not to be regarded as a witness of credit because of his own drug-taking and sexual conduct.
Section 41 Evidence Act 1995 (NSW) gives the court power to disallow improper questions asked in cross-examination. The circumstances in which a witness may be asked about sexual conduct should be a subject of particular caution, because sexual activity is rarely if ever relevant to issues before the court. I also note that this is not a right restricted to criminal proceedings; as the Australian Law Reform Commission ("ALRC") notes in its report Uniform Evidence Law (ALRC 102) at [5.107] and again at [5.118], "a witness in a negligence or a civil assault matter may be as vulnerable to attack in cross-examination as a victim of a crime."
However, in this case, the plaintiff's evidence to the court denying even her use of drugs (other than on the handful of occasions she acknowledged in her examination in chief), let alone their sale, is an important part of her presentation of herself as a young woman with a long working career ahead of her as well as respectable pre-accident employment, and no drug issues whatsoever.
For a trial judge, to rule out this kind of evidence during a trial, runs the risk that evidence from the defendants' witnesses on this topic would consequently not be able to be given. If the plaintiff had in fact been not merely using but selling drugs in circumstances of the kind foreshadowed by Mr Poulos QC, to refuse to permit the plaintiff to be cross-examined about these transactions would be to prevent the defendants from being able to put their case or to lead the evidence put in his later application to reopen. The ALRC concluded (at [5.115]) that a question should not be disallowable merely because it challenges the truth of the witness' statement or raises a distasteful or private topic. This case is a relevant example.
In addition, the dangers of judges taking too strict a course in rejecting questions in cross-examination should not be understated. The complaint of judicial partiality is even easier to make out where there has been judicial intervention, as opposed to allowing a trial to run its course and permitting counsel to conduct their cross-examination as they see fit, as many of the decisions on this issue confirm.
Further, when such questions are asked in the course of a trial where the trial judge has yet to form a concluded view, a trial judge who rules out a question of this kind runs the risk of doing so in circumstances where this in fact amounts to prejudgment. It is sometimes the case that what is being put to the witness is in fact truly the case, and the challenge to the evidence is without substance. In such circumstances, it is easy to be wise after the event and to say that a particular question should not have been put. In the present case, if questions about the plaintiff's drug-dealing activities had not been permitted, a false picture of the plaintiff would have been painted. I note that Mr Maxwell in fact put to the second defendant that he was lying about the plaintiff selling and using drugs, and that Mr Poulos QC specifically referred to this cross-examination in his application to reopen, as well as to the plaintiff's failure to give further evidence about the social media posts the subject of that application.
The task of the trial judge, in determining the evidence to accept, involves the establishment of a balance in terms of s 41, to ensure that all proper admissible evidence is given. In Rashid v Munir & Ors [2018] EWHC 1258 Turner J, hearing an appeal from Judge Davey QC, concurred with the first instance judge's finding that the evidence was "a festival of mendacity" (at [1]). Turner J added (at [19]): "Attempting to establish the common but unstated intention of a group of individuals all giving honest but conflicting evidence is difficult enough. Where, as here, each witness is attempting to outdo the other in a rich display of competitive dishonesty the task of the judge is unenviable."
In the present case, the "competitive dishonesty" of the plaintiff and certain of the witnesses she called was such that I was satisfied that questions about the nature and extent of the plaintiff's drug dealing activities should be put, including questions about how she paid for her drugs.
The plaintiff was, as a consequence, asked the following additional questions: "Q. Was there a time when Georgia Madden saw you performing a transaction where you offered oral sex for money to buy drugs? A. No." Q. Did you ever conduct yourself in such a manner before your accident as to offer people sex for the purposes of obtaining drugs? A. No." (T 428.1-.7).
The plaintiff's attempts to minimise her drug-related activities on the night in question are not only at odds with her own text messages but the evidence of the other two occupants in the car who gave evidence as well as the other occupant of Ms Davey's house.

[12]

Cara-Lee Davey

Before commencing a summary of Ms Davey's evidence, I note that she provided a statement to the NRMA investigator on 22 October 2013, where she described the relevant events as follows: "8) I was had been at home the night before and I was asleep on the lounge room. I received a several phone calls from Chloe Bevan and Kurt O'Connell about 11pm. My flat mate woke me up and I answered the phone to Chloe. She asked me what I was doing and they wanted to come. Kurt O'Connell and Jake Coolahan wanted to come over with Brent Knight. I have known them all since 2009 when I worked at Hungry Jack's, Glendale. 9) Chloe, Jake, Kurt and Brent drove to my house in Kurt's car. Kurt owned a Blue Commodore. We were watching television for a while and we smoked a couple of pipes on ice. Ice is very similar to speed but just a more intense version. I saw everyone have a cone. I also saw Jake have a cone as well. I didn't want to do it at first but I joined in because everyone else was doing it. It made my heart pump really fast. It made my vision go a bit weird and I was seeing coloured dots. I also Chloe have a cone of it as well. She may have had four. Everyone had at least four cones. 10) About 2.30am the next morning we left my house. I went with Kurt, Jake and Chloe. Brent was asleep. We got into Kurt's car and he was driving perfectly fine. I was in the front passenger's seat and Chloe was behind me and Jake was behind Kurt on the left. We drove to Cameron Park to pick up Chloe's I-Pod. Cameron Park is about 15 minutes from here. 11) We drove to a house somewhere in Edgeworth to swap the I-Pod for more drugs, more Ice. Jake went into the house and returned a short time later with some more Ice."
She described the circumstances in which the second defendant was asked by the first defendant if he could drive the car and the second defendant said "he would think about it". She knew that the first defendant had only "red plates" and was not meant to drive after 11.00pm (paragraph 15). She described the circumstances of the accident.
Ms Davey's evidence needs to be viewed with caution, in part because she asserted her memory was now a lot worse because of her head injury (T 285), her acknowledgment that relevant facts were kept from the police because of fear of prosecution in relation to drugs (T 286) and her acknowledgment that if she did have difficulty recalling the events the subject of inquiry by the NRMA investigator, she could have done so but did not do so (T 308). Even with those reservations in mind, Ms Davey's evidence contains significant concessions, such as the fact that she was an habitual marijuana user before the accident (T 285), however, she denied frequent use of other drugs, and she described the plaintiff as similarly being a habitual user of marijuana at the time (T 303). Like the plaintiff, she acknowledged that she knew that it was illegal to drive a car with illicit substances in the bloodstream (T 299) as well as dangerous to get into a car with a driver who was affected by the use of illicit drugs (T 302). She knew that if she herself was participating in drug use, it would be illegal (T 302), as would have been the intention to return to her home for the purpose of ingesting more drugs.
Mr Poulos QC draws my attention to Ms Davey's apparent acknowledgment (T 286) that it was important for her case to try and minimise the amount of drugs that might have been used while she was present in the company of Chloe, Jake and Kurt (T 286.38). I do not think that Ms Davey made that concession. However, it is evident from the information that was provided to the police concerning the accident that all of those present, including the plaintiff and Ms Davey, were careful not to tell the police anything other than absolutely necessary in relation to the circumstances of the accident. I am satisfied that this was because they were aware that they were engaging in an illegal activity, namely purchasing and using drugs. Her evidence must be viewed with caution on the issues in dispute as to liability.

[13]

The evidence of Ms Davey

Ms Davey, whose evidence commences at T 270, gave evidence in the first tranche of these proceedings, on 7 October 2016. She was the fourth passenger in the motor vehicle with the plaintiff and the two defendants, and, as is noted in the defendants' written submissions at paragraph 17, is bringing a claim for damages. An application by the defendants for those proceedings to be heard at the same time as these proceedings, brought when these proceedings were part heard, was withdrawn.
Ms Davey was on her couch asleep at approximately 11:00pm when the plaintiff, the defendants and another person named Brent Knight came to her front door. Ms Davey's roommate, Ms Georgia Madden, let them in. Ms Madden said: "Throughout the night, I'd had a couple of, like, marijuana cones and so did the girls but the boys didn't, to my knowledge." (T 272)
Ms Madden thought they had participated in this activity approximately an hour after arriving at her home and they remained watching television and participating in the taking of drugs until about 4:00am when Ms Madden and Mr Knight remained in the home while she, the plaintiff and the two defendants got into the car (T 273). She did not observe any other drugs being taken.
The reason for leaving the house was "to get Chloe's iPod from her house at Cameron Park" (T 274). She described the reason for this as follows: "Q. Did you know why that was so? A. She wanted to play apps on the iPod, to my knowledge. I've hit my head in the car accident, so just a little bit of the memories are a bit fuzzy but just as I'm saying to my knowledge." (T 274)
They drove to the plaintiff's home and she returned with her iPod in her hand, as well as a pair of pyjamas (T 275). She was asked what happened next and replied: "A. We got back in the car and we started driving until Lake Road, Glendale, Argy area, and then at that time Jake has gotten out of the car and gone into another house and then got back in the house, and that's when he has asked to start driving the car." (T 275)
They stopped at the home of the first defendant so that he could obtain a change of clothes (T 275) and it was following this that he asked the second defendant if he could drive his car. The first and second defendants changed seats in the car. Ms Davey described what happened as follows: "Q. What happened then? A. That's when we've started driving back to my house in Shortland and yeah, we've come all the way to where we've crashed until anything has gone wrong. Q. So from where the car stopped until where the accident happened, are you able to give an indication of distance approximately? A. I can give you a time distance. It takes about five, ten minutes to get there, probably five minutes at that time of night, but I couldn't give you kilometres, sorry. Q. So from the time that Jake started driving until there, how was he driving? A. He was driving very fine, or otherwise I would have said something. There was nothing wrong with his driving. He wasn't impaired, wasn't doing anything silly. Q. Did you notice anything unusual about Jake prior to him driving the car? A. No, or I would not have got in the car, stayed in the car. Q. What happened then leading up to the accident? A. Just before we've crashed, sorry? Q. Yes. A. We've come to a T intersection and he has come round that corner and gone a little bit sideways. I've told him coming up to the corner to be aware of it because I live around the area and know after it has been raining, it's really slippery. Q. What words did you use precisely? Can you remember? A. Not precisely sorry but it would have been something along the lines of "Watch this corner it's slippery in the wet". Q. Did anyone else say anything at that time? A. Not at that time but it wasn't shortly after until Chloe said something. Q. Do you recall what she said? A. Yeah she told him to like slow, to slow down. Q. Do you remember her words? A. I don't mean to swear but I'm pretty sure she said "Slow the fuck down". Q. How long before the accident was it that she said those words? A. It was when we hit the first T intersection and the other corner which we actually crashed on is five seconds away, if that. It was when we've come around sideways that she said something. Q. Then what happened? A. We have come round the other corner which is going that way and we've - Jake has over-corrected coming round the corner and gone up onto the median strip and then over-corrected again and we've slammed straight into the telegraph pole. Q. What happened then? A. I then waited for the smoke to clear out of the car, sorry, and jumped out of the car and Chloe was screaming for some help and I attended to her in the back seat. Q. Where was she? A. She was seated right behind me, back left-hand passenger. Sorry keep going? Q. Yes. A. And then I, yeah, attended to her, I opened the door up and told her that she should sit in the car like she was a little bit scared and wanted to get out of the car and I've walked her over to the gutter which is two metres away and just like sat her or laid her down. And then after that Jake was still sitting in the car for a little bit, like he's jumped out and Kurt was knocked out in the back seat and I quickly checked on Kurt but then Jake got him out of the car in the long run and I called the ambulance straight after." (T 276-278)
Ms Davey was taken to the hospital but said: "A. I wasn't in there for long, probably ten minutes while I got checked out. I was really scared and just wanted to get out of there." (T 281)
Ms Davey made a statement to the police which is Exhibit D: "4. About 3:15am on the 4th August 2013 I was in a vehicle, a blue Commodore owned by Kurt O'Connell. Also in the car was Chloe Bevan, Kurt and "Maddy". "Maddy" was driving. 5. I was seated in the front passenger seat. Chloe was in rear seat behind me. Kurt was in the rear seat behind the driver. 6. We had just left Kurt's at Holmesville and were heading to my house at Shortland to get an iPod of Chloe's. As far as I know, no one had been drinking or taking any drugs during the evening. 9. [sic] As we were coming down Tilly St, Wallsend, the road bends to the right. It was damp but not raining. I drive this bend regularly and know it is a "tighter" corner than it looks. I said to Maddy "watch this corner". 10. [sic] We went round the corner. The vehicle is rear end sho [sic] out to the left and the front went to the right. The car went half onto the median strip. "Maddy" tried to correct the skid. 11. [sic] The car then went to the left and collided with a telegraph pole. Then there was a lot of smoke. 12. [sic] Chloe screamed. I got out of the car and tended to her. "Maddy" got out of the car and helped Kurt. 13. I got Chloe out and laid her on the ground. I tended to her. The ambulance got there about five minutes later. 14. The ambulance took me to hospital. Cara-Lee Davey 09/08/2013"
Ms Davey's statement that no one had been drinking or taking any drugs during the evening is false on her own admissions (T 272, 273 and 296) and she in fact consumed cannabis prior to the accident. Her evidence to the court concerning consumption of marijuana is contradicted by her statement to NRMA investigators dated 22 October 2013, namely that ice was consumed.
She was cross-examined about this by Mr Poulos QC at T 287: "Q. Your statement you said, "I remember we were watching television a while and we smoked a couple of pipes of ice," and you went on to say, "Ice is very similar to speed but just a more intense version." Was that your understanding as of October 2013 and before? A. Yes, that's what I've been told by other people. It's a very epidemic, unfortunately bad in our society and it's very well known about. Q. According to this statement you smoked it yourself. According to this statement. Would you now agree that that's the case? A. No. Q. I want to suggest to you, you know precisely what the effect of smoking ice and methamphetamines is, don't you? A. I've seen it affect people but not personally. Q. You've never personally smoked it? A. No. My parents would disown me. Q. You went on to say: "I saw everyone have a cone. I also saw Jake have a cone as well. I didn't want to do it at first but I joined in because everyone else was doing it." This is what it says in the statement, you can rest assured that I'm-- A. Yeah."
Even the evidence that Ms Davey gave in chief concerning the reason for the plaintiff wanting to obtain her iPod (namely to play music) was contradicted by this statement: "Q. You said you got into Kurt's car and was driving perfectly fine: "I was in the front passenger seat and Chloe was behind me and Jake was behind me," And so on. In the paragraph 10 answer: "We drove to Cameron Park to pick up Chloe's iPod. Cameron Park is about 15 minutes from here. We then drove to a house somewhere in Edgeworth to swap the iPod for more drugs, more ice." Right. That's what it says, doesn't it? A. Yes. Q. "Jake went into the house and returned a short time later with some more ice." That's what it says, doesn't it? A. Yes. Q. That's what happened, isn't it? A. As I said, to my knowledge I don't believe that's what happened. I - it was - this was two months going after the accident and I had hit my head very hard in the accident; I still suffer from cognitive signs. I was scared into being told things that I shouldn't have been saying. I just-- Q. Who scared you? A. Chloe's dad. Q. Chloe's dad wasn't there on the day this statement was taken, was he? A. That doesn't mean he doesn't scare me when he's not around. Q. This is, I would suggest to you, a very thin excuse for your inconsistent versions? A. That's your opinion. Q. There's not an indication anywhere in this statement, I want to suggest to you, that you were suffering from any disability or a head injury that caused you to change your evidence in such a material particular as you did or as you have, I beg your pardon. A. So? Yeah, you've asked me that question. Q. Let me put this to you: you never told the investigator when he was listening to you talking about this event, you never told him that you had a bad injury? A. I didn't know at that point. I-- Q. You didn't know what? A. I didn't know I had a head injury. I had back problems. I had fibromyalgia. I didn't know any of this. I was left in the blur, in so much pain, and didn't have any treatment for six plus months. I only found out last week I have a brain injury and in an email of all things." (T 288-289)
Ms Davey was asked about her evidence concerning the iPod at T 291: "Q. You parked at Bunnings for about five minutes and that's where you had another pipe of ice. You all had another pipe of ice because I suggest to you, that's what Jake went in to buy using the iPod, is that right? A. I don't know. I can't say that's right or wrong. Q. Did it seem a bit strange to you to drive 15 minutes out to Cameron Park to get an iPod to listen to some music? A. Not when it came to Chloe. Q. You had music at your place, didn't you? A. No, actually I did. I had no internet, no nothing at that place. I had Foxtel, that's about it. Q. But there is a Foxtel channel that has got music on it, isn't there? A. I don't think I had the music channel. I had the premium one which is just, like, a couple of channels. Q. Look, it must be fairly obvious to you I don't accept the story about going to get the iPod for some music. I'm going to suggest to you that the whole group had a problem about getting more ice, so the iPod was going to be used as either the price for or something to be left there so that you could get ice. A. I'm sorry, was that a question? Q. Yes, that's what I'm suggesting to you. The whole purpose of getting the iPod was to go to a place where there was a person called Crystal. Can you remember Crystal's name being mentioned? A. No."
Although Ms Davey denied that she knew either of the defendants was affected by drugs in the lead up to the accident (T 296-297), she had observed them using drugs over a period totalling nearly six hours and was aware that it was illegal to drive a car with illicit substances such as cannabis, speed or ice in the bloodstream (T 299). She admitted she knew it would be dangerous to get into a car with a driver who was likely to be affected by illicit drugs (T 302).
Ms Davey continued to deny that the plaintiff, the defendants and herself were using ice (T 297 lines 14-15). She acknowledged, however, that all of the persons at her place, including the men, smoked cannabis (T 298) and that the process went on for "a while because there were so many people" (T 298 line 25).
Ms Davey's answers to questions in cross-examination were at times implausible (for example, T 302 line 24-25). She responded to a number of questions by saying she did not remember, adding words such as "this is three years ago now" (T 302 line 33). She acknowledged that the plaintiff was a habitual user of marijuana but was more cautious in relation to the plaintiff's ingestion of ecstasy (T 303). She acknowledged that the contents of Exhibit 1 constituted a request to purchase drugs and disagreed with the plaintiff's statement that she (Ms Davey) was "really into all of that stuff" (T 77 line 31; T 304 lines 5-27).
Ms Davey was also asked about whether or not the plaintiff had lost her job, to which she replied "this is three years ago. I can't even remember what she was doing" (T 305). A subpoena to Hungry Jack's issued after Ms Davey gave evidence revealed that both the plaintiff and Ms Davey had been sacked for coming to work affected by drugs. While none of this material was put to Ms Davey, I must be cautious in relation to making any findings as to her credibility in this regard.
I should also take into account Ms Davey's very frank admission about her state of mind at the time of giving evidence: "Q. Is it possible that the reliability of your evidence has been very heavily affected by these prescription drugs that you're taking? A. I think the whole accident and leading up to it I just, yeah, I really don't feel like what I'm saying is proper, that's why every time I say to my knowledge and that's why I keep saying it a lot; it is so hard, I have memory loss. So hard to remember things, especially little conversations that happened three years ago. I've had to worry about my health and condition. I'm definitely not thinking about conversations that happened five minutes before the accident or-- Q. Or when the policeman spoke to you? A. No, I've turned upside down and just shock came into play and basically God knows, it's so hard to remember anything. I think it would be being on the amount of prescription drugs I've had. Like it's ridiculous. What I feel is to the best of my knowledge is the statement I gave straight to the police straight after because that's as soon as it happened and the least affected by the prescription drugs and the total outcome of the accident. Q. Excuse me, I thought that was when you had some form of - you suggested in your earlier evidence - you had some form of head injury? A. Sorry? Some form of energy? Q. Head injury. A. Head injury. HER HONOUR Q. Yes, you hit your head, remember, in the accident? A. Yeah, I've only been told this like a week ago. POULOS Q. You were told that you'd hit your head about a week ago. A. No, I was only told. I've only just had an MRI and my medical needs have gone well and truly out the window. I'm not even looking after myself properly. I don't know why my psychiatrist thought it was okay for me to come when I can't recall half of the things that happened. Q. Just stop for a moment. I want to finish up by saying this: if you had been in any condition like the one you're in now at the time you spoke to the insurance investigator in October 2013, you would have told him, wouldn't you? A. What do you mean? Like-- Q. You would have said, "Oh, look, my memory is no good. I think I've injured myself in some way. I'm on drugs that might affect my memory." A. I wouldn't have said that because I can't just make a self‑diagnosis and say that something-- Q. You never mentioned anything like that. A. --is wrong when it wasn't. I knew for a very long time that my memory was affected until it got confirmed, but I can't just self‑diagnose and say to an insurer investigator whatever you just said, that I, I think I have a head injury. I don't think it works like that. Q. Whether or not you had a head injury, if you were having trouble for whatever reason in undertaking to tell the investigator what happened that night, you had every opportunity to say to him, "Look, I don't really have a clear recollection" or "I'm not feeling well and I've got to tell you that I might have hurt myself" or some words to that effect. You didn't tell him those things, did you? A. No, I wish I did. I didn't know I could." (T 306-308)
What this evidence shows is that Ms Davey has minimised her evidence not only in relation to drug taking but in relation to any issue affecting the plaintiff's claim.
Nevertheless, her evidence paints a fairly clear picture of the plaintiff, the defendants, Ms Madden and Mr Knight participating in the taking of drugs and, when those drugs ran out, going to buy more drugs, not once, but on an extended basis. I am satisfied that she knew the purpose of the return by the plaintiff to the plaintiff's home was for the purpose of obtaining an item of value to use for the purchase of drugs, and not so that she could play music, and that her evidence to the contrary is an attempt to help the plaintiff by minimising her drug-taking.
This brings me to the evidence of the defendants, namely the second defendant, Mr Jacob Stuart and Ms Georgia Madden.

[15]

Georgia Madden

Ms Madden was living in Ms Davey's home and was present when the plaintiff and others were consuming drugs. She was not involved in the accident. She acknowledged using drugs before the accident, including using ice on a few occasions, as well as speed, acid/LSD and marijuana (T 437).
Ms Madden knew the plaintiff before the accident and had used drugs with her (T 437-438). Having lived at Ms Davey's home for about two months before the accident, she had seen the plaintiff frequently during that time. She had seen the plaintiff and the second defendant taking drugs, including pills (T 440).
On the night in question she observed the four persons who were involved in the accident smoking ice (T 441) and heard the plaintiff say that the group should go out to get more ice when the ice ran out. She described this conversation as follows: "Q. What happened? A. Sorry, the ice had run out at that point and Chloe had said we should go get some more and she'd spoken about that she had some things that she could - I don't remember exactly if it was swapping for collateral, or it was selling it for that, so exchanging it. Q. What was "it"? A. It was either, it was her brother's iPod and it was a Navman that she'd had. Q. So there were two things possible were there? A. Yes. Q. Who was present when that conversation took place? A. Myself, Brent, Maddy, Kurt, Chloe, and Cara. Q. Did you observe anyone make any telephone calls? A. No." (T 442.20-.34)
Ms Madden also gave evidence that Ms Davey and the first defendant returned to the house at approximately 6.00am, bringing the ice that had not yet been consumed, and that she had joined with them in smoking it (T 445).
Ms Madden also gave evidence of the plaintiff obtaining drugs in exchange for sexual activity (T 451) and to carry out financial transactions involving drugs prior to the accident (T 456). This is set out in more detail below in the section of this judgment concerning the credit of the parties and the witnesses.

[16]

The evidence of the second defendant

Before considering the evidence of the second defendant in detail, I first note that much of his evidence is able to be corroborated by Exhibit 1 and the plaintiff's social media tenders generally, particularly Exhibit L, which was the subject of an application to reopen the evidence. I also note that the plaintiff made admissions in relation to the accuracy of his evidence concerning the termination of her employment with Hungry Jack's.
The second defendant has known the plaintiff since 2004 (T 468 line 43) when they were in school together, but did not encounter her again until 2010 when they worked together at Hungry Jack's in Glendale. They both dropped out of school and worked part time at Hungry Jack's and he saw her more or less every day. They lived around a 10 minute walk from each other's homes. He was working at Hungry Jack's with Ms Davey (T 45).
He described the circumstances of the plaintiff ceasing work at Hungry Jack's as follows: "Q. In due course did you become familiar with the fact that Cara Davey and Chloe Bevan lost their jobs there? A. Yeah. Q. Did Chloe Bevan tell you why she lost her job? A. Yes. Q. What was that? A. Her and Cara both went to work on LSD and told their manager. Q. And what? A. And told the manager. Q. And told the manager that they'd been on LSD? A. Yeah. Q. Did you see them while they were there at work that morning? A. No. Q. She just told you that that's what happened? A. I didn't find out until like a week later. Q. You had a conversation with her about that? A. Yep. Q. Did you continue working there? A. For about a week and then I quit." (T 470)
The second defendant left Hungry Jack's shortly afterwards and became a labourer. Following that he went to McDonald's for the next five years where he was a training manager. Over this period, he continued to associate with the plaintiff, although not until he had obtained his motor vehicle driver's licence and was able to use his car to visit her. At the time that he was seeing the plaintiff, she was living in Shortland and he mostly saw her at Ms Davey's home. He described these events as occurring in 2012 as follows: "Q. When did you obtain your car licence? A. February 2012. Q. After that time did you see Cara Davey? A. Yes. Q. Where did she live? A. Shortland I think, at that time. Q. I don't think there's any issue about that, Tobruk Street or Crescent, Shortland? A. Yep. Q. Did you go to that house? A. Yes. Q. What group of people were you associated with at that house, if any? A. Sorry? Q. What group of people would you be associated with at Cara Davey's house? A. Anyone that smoked weed or ice. Q. Is that a place that you smoked weed or ice there? A. Yes. Q. When you were at Hungry Jack's did you smoke weed or ice there? A. No, I smoked weed with them while I worked at Hungry Jack's but I didn't touch ice till a few years later. Q. When you smoked weed at Hungry Jack's did you ever smoke it with Chloe Bevan? A. Yes, we used to do it before work together. Q. Whereabouts before work? A. Across the road, there was like a little bush area that we'd sit. Q. Was this a regular thing? A. Yes. Q. Where was the weed or marijuana obtained from? A. Wherever we got it from. Q. You don't know? A. Just whoever had it at the time. Q. Did Chloe have it in her possession? A. Yes. Q. Did you have it in your possession? A. Yes. Q. And sometimes you'd have it and sometimes she'd have it? A. Yep. Q. Was there any other person who smoked weed in that little bush area? A. There was a few other workers that would come with us sometimes. Q. After that period of time did you continue to regularly smoke marijuana? A. Yes. Q. When did you first start smoking ice? A. The end of 2012. Q. In what circumstances did you start? Did you obtain it from somebody or did somebody introduce you to it? A. Someone introduced us to it. Q. Did you continue after that? A. Yes. Q. Did you see Chloe Bevan use ice? A. Yes. Q. When did you observe her to do that? A. Multiple times. Q. Whereabouts? A. Multiple places. Q. Did she have a car? A. No. Q. Did you give her lifts around? A. Yes." (T 471-473)
The second defendant was in a relationship with the plaintiff at this time and he described their mutual drug taking activities as follows: "Q. During the time that you had that relationship with her what drugs did you observe her to use, if any? A. Acid, weed, ecstasy, ice. Q. There's various names for ecstasy apparently, is that right? A. Yeah. Q. What names did you know it by? A. Pingers. Q. Pingers? A. Yeah, pingers or dingers, either one." (T 473)
The second defendant went on to describe other drugs they had taken such as gas (T 473). The second defendant was also friendly with the first defendant, although he no longer knew him or where he lived. He could not assist as to his whereabouts at the present time (T 475 line 22-23). He said that he used "the exact same" drugs as the plaintiff (T 475 line 43). The three of them went out together "usually just in the car, we would go smoke weed or ice" (T 475). He asked the plaintiff to procure drugs for him on a number of occasions (T 476 line 22) which he described as being "[j]ust weed or ice, acid, things like that, same" (T 476). He would give her money for this purpose and saw her do this "multiple times" (T 477 line 16). He also observed her sell drugs in the six months prior to the accident (T 477).
The second defendant described how he, the first defendant and the plaintiff went to Mount Sugarloaf on the evening of Thursday 8 August 2013 where they all smoked ice for about 40 minutes to an hour (T 478 lines 27-44). They used the plaintiff's pipe to smoke the ice: "Q. What did you do there? A. Smoked ice. Q. Did you see Chloe smoke ice? A. Yes. Q. What did she use to smoke the ice? A. A pipe. Q. Whose pipe was it? A. Chloe's. Q. Can you describe it for her Honour, what does it look like? A. It's like a little - it's like a pen that's got a little ball at the end of it. Q. Is it made out of something? A. Glass, yes. Q. After you'd been there an hour was there some form of conversation as to what you were going to do? A. Yes, I was texting Georgia. There was Cara and we were going to go to her house but she didn't want us to come over because she going to sleep and then Georgia messaged us - who was living with her at the time - and said, "Come over, we'll wake Cara up when youse get here." Q. You'd smoked some ice at Mount Sugarloaf, who owned that ice? A. I did." (T 478-479)
Following the conversation and text messages the second defendant had with Ms Madden, the plaintiff and the two defendants went to Ms Davey's home in Shortland, which was approximately a 15 minute drive away. The second defendant said it was close to midnight. The occupants of the house then all engaged in "smoking weed" (T 480) out of a bong and smoked the last of the ice that they had. Everyone shared the drugs and the bong and he saw everyone smoke ice and smoke weed using the bong and the pipe. It would be passed around from one person to the next. He was asked how many cones of marijuana was smoked: "Q. On that evening, how many cones did you see smoked? A. It was more than two each, like the bong that she had is like this massive tall glass one and like has a really big cone piece in it so the cones are massive. Q. Where did the marijuana come from that was used that evening? A. I'm not sure. Cara would have obviously had some at her house, but I probably would have had some as well." (T 481)
He described the conversation which occurred about obtaining more drugs as follows: "Q. So something is about to happen and I think you know the conversation, what we want to know is who said what to who and pretty much in what order as to the best that you can do, all right? So, what happened how did this topic of drugs come up and who mentioned it first and what was said? A. None of us had any left, like ice left, we all wanted to get more Chloe and Jake both knew this Crystal girl that have lived in Argenton and said they could get some, but we'd have to give collateral until pay day and then we had nothing and then Chloe said "Hey I've got" ‑ I don't know if it was the iPod or it was the Navman that she had at her house in Cameron Park and then we messaged ‑ one of them messaged Crystal and then told them that and Crystal said "Yeah, that's fine" and then when we got to Chloe's house the iPod or the Navman she couldn't find it, so she had to get the other one and then asked Crystal if that was fine Crystal said that was okay and then we drove to Crystal's and they made the exchange. POULOS Q. So when this arrangement was discussed you were all together in the room? A. Yes. Q. Could everybody hear what everyone was saying? A. Except Brent because he was asleep. Q. He was asleep? A. Yep. Q. But also everybody could see what was being done? A. Yes, everyone knew what was going on. Q. What was your part in obtaining the ice from Crystal? A. I was the driver. Q. So did you leave the house in your car with somebody? A. Yes. Q. Who did you go with? A. Cara, Jake and Chloe. Q. Where did you go? A. We drove to Chloe's house at Cameron Park and parked out the front and then she came out a while later with the iPad or the Navman I'm not sure what was what. Q. She came out with an item? A. Yep." (T 481-482)
When she came out of her house, the second defendant was still driving. They drove to Argenton and parked outside the front of the house, waiting for one of the occupants to go inside and get the drugs. He was unsure if this was the plaintiff or not, but the person in question came back with "[a] little sandwich bag with ice in it" (T 485 line 34). He then drove to the Bunnings carpark to smoke ice (T 485 line 47) at approximately 3:00am. They did not want to go back to Ms Davey's home as Ms Madden and Mr Knight would be there and "there wouldn't be enough for everyone, we could have more if there was only four of us" (T 486 line 25). The second defendant estimated they were there about half an hour to 40 minutes and smoked two to three pipes each with the result that each of them became "[e]xcited, high, excited" (T 486 line 46). He was using the plaintiff's pipe in order to smoke the ice. They returned to Ms Davey's home in order to "finish smoking the ice" (T 486), but before doing so, he had a conversation with the first defendant about driving: "Q. On the way, did you have a conversation with Jake about driving? A. Yes, all night he had been bugging me to let him drive and then he was bugging me on the way back and then I eventually just let him drive and pulled over. Q. What did you know about his driving record? A. I thought he had a licence but then I found out after he crashed that he didn't have one, he got it taken off him. Q. So where was it that there was a changeover between you and Jake? A. Macquarie College School out the front of there. Q. The college? A. Yeah, like there's a school on the main road." (T 487)
The plaintiff was sitting in the back seat as was the second defendant. She was to his left. She was wearing a seatbelt but he was not and her legs were on top of him and across his lap. He described what happened next as follows: "Q. When you approached that corner how was the car being driven by Jake? A. He got to the first corner here and then there was a corner around from there, he like slid around the corner and then drove normally and then drove normally around the next corner, and then the third corner is where he slid out again and then that's where he crashed. Q. What speed did he approach the corners? A. I'm not sure. Q. Were you paying any particular attention at that stage? A. Yes, but not at the odometer. Q. What did you feel the car doing as he did these corners? A. On the last corner before he was crashing I felt the car slide out and then he changed directions and it looked like we were going towards, into the servo and that's all I remember. And then I remember waking up in the back of the car." (T 490)
He was then asked: "Q. Did something happen to the ice that was in the car? A. Yes. Q. What happened? A. Jake, Jake and Cara had a discussion about it. They went and hid it in the bush near the car, so they could go back and get it." (T 491)
The second defendant was in hospital for three nights as he had suffered a head injury. He described a visit from the plaintiff's father who said to him: "Q. What did he say to you? A. He came into the room when I was there by myself and then said "I know that you were on drugs. I know Chloe's on drugs, but I need you to tell me if Jake was on drugs? And don't lie." And then I said yes, and he said thank you and walked out." (T 491)
The second defendant remained a friend of the plaintiff after the accident up until she became pregnant, which he said was in about October 2014. He described her health condition after the accident as follows: "Q. Up to the time she got pregnant, what did you observe about her drug habit if any? A. It was the same it was like she didn't have a broken back she was always out doing any drugs she could do and just carrying on." (T 495)
In particular, the plaintiff was continuing to take drugs including marijuana, LSD, ecstasy, ice and gas (T 495 line 25).
The second defendant did not have any contact with the plaintiff during or after her pregnancy until Australia Day 2016, when they began corresponding on Facebook and went out to dinner. After Australia Day 2016, the second defendant said he would go to the plaintiff's house in Edgeworth where he would "smoke weed" (T 496 line 17). He was with the plaintiff when she moved from Edgeworth to Cardiff and observed her doing so. He also saw both the plaintiff and a person called "Jabba" selling "weed" (T 516 line 33). He said that he observed her exchange her pain medication for marijuana: "Q. Was there any transactions involving any other drugs? A. Yes, if she had no money and needed weed she would exchange her medication for marijuana. Q. What kind of medication was that? A. I'm not sure, whatever she has from her back operation, it's real strong stuff that's all I know. Q. Who did she exchange that with? A. The neighbour next door." (T 517)
He told the court that the plaintiff said her mother would acquire "weed" for her: "Q. What did Chloe tell you? A. She said that her mum was coming to get weed but her mum told her not to tell me that she was buying it and to come up with a code word to say in front of me so Chloe would put the weed in her drawer in her room and her mum would walk in‑‑" (T 523)
The second defendant also claimed that prior to the accident he had seen the plaintiff's parents use drugs on her 18th birthday in 2012 and that, on one occasion, he and the plaintiff had obtained a $50 bag of gas for the plaintiff's father (T 524). It was on occasions such as this that the second defendant's hostility towards the plaintiff and her family were readily apparent.
The second defendant agreed that his friendship with the plaintiff ended on very bad terms: "Q. Can I suggest that the friendship that you had with Chloe terminated on grossly unfriendly terms, if I can put it that way? A. Yes." (T 533)
The second defendant was cross-examined at length about his account of the accident. He readily acknowledged that the ice that was smoked was his (T 539 lines 15-38) but was certain that the pipe that he used belonged to the plaintiff. He acknowledged that he could not recall certain events of the evening, such as whether Mr Knight was in the car at Mount Sugarloaf (T 543) and disagreed with the plaintiff's evidence that he collected her at approximately 5:00 to 6:00pm, stating it was more likely to have been 8:00 or 9:00pm (T 542), but apart from making acknowledgments as to being unable to recall relatively minor details such as the presence or absence of Mr Knight, the second defendant was not shaken in his evidence. In particular, his agreed that the group had stopped at Bunnings to consume ice (T 546).
The second defendant was frank in his explanation as to why he did not tell the police the whole truth: "Q. You gave a statement to the police, didn't you? A. Yes. Q. Did you tell them the whole truth? A. No. Q. Why not? A. Because Maddy was my friend at the time and I didn't want to get him in trouble." (T 546)
The second defendant disagreed that the plaintiff or indeed anyone said anything to the first defendant about his driving prior to the accident: "Q. At that stage Chloe said, "Slow the fuck down" or something to that effect, didn't she? A. She didn't say a word, she was buried down in her phone. HER HONOUR Q. She was what? A. Buried like her face was in her phone. Q. I see, she was looking at her phone, was she? A. Yep. MAXWELL Q. She was on the phone, was she? A. Yep. Q. What were you doing? A. I was sitting. Q. At the time that he started to speed up did it cause you any concern? A. A bit a little bit, but I was like thinking we were already nearly home I will just let him go. Q. So not a major concern to you? A. No. Q. So you didn't feel the need to call him up? A. No. Q. Slow him down? A. No. Q. Until it was too late, is that right? A. Yes. Q. I'm suggesting to you that Chloe actually told him to slow down, you disagree with that, don't you? A. Yes. Q. Can I suggest that following that, Cara said something similar, told him to slow down? A. No, no one said anything." (T 547-548)
This is of significance, as the claim that the plaintiff asked the first defendant to "slow the fuck down" is a central part of the evidence relied upon in relation to illegal purpose.

[18]

Evidentiary challenge to the tender of social media

The plaintiff was asked at T 371: "Q. Since the motor vehicle accident, have you taken any illicit drugs? A. No. Q. For more abundant caution, illicit drugs would include ice or ecstasy? A. No." (T 371)
The plaintiff was shown short films taken of her by the second defendant with her apparent consent: "Q. You were asked a very simple question before, whether or not you've smoked marijuana since the accident and you said "no", didn't you? A. Yes. Q. The evidence is now quite clear that you've admitted to smoking it when shown that video, particularly, is that right? A. Yes, I knew this would happen anyway because Kurt said he was going to blackmail my court case. Q. I'm going to give a chance, have you been smoking marijuana since that date? A. No, and you can drug test me right now. Q. You haven't smoked any marijuana since December 2016, is that what you say? A. December 2016? Q. Yes. A. No, I smoked it a few times with Kurt after my last operation. I can't recall on what dates but I can't say definitely yes, definitely no, I can't remember when was the last time, I don't know. Q. There is a suggestion I want to put to you? A. Okay. Q. Is that you were using your prescribed drugs such as Endone to swap for marijuana with a person-- A. That's 100% incorrect. Q. Just listen to my question. A. I know where that's come from, Kurt O'Connell, because he tried to say that to my mum. He's actually stole, which I reported to the police, a box of medication from my house. How can you sell medication for marijuana anyway? How does that even work? Q. Somebody might want it who had marijuana and was prepared to swap it. That's what I'm suggesting to you? A. Right. Q. That's what's happened, isn't it? A. No. POULOS: I have to approach again with another video. HER HONOUR: Take Mr Maxwell with you. POULOS Q. Just look at this, is this you sitting on your bed? A. No, that's on Kurt's bed. Q. Kurt's bed, which premises is that? A. At my premises. Q. When did Kurt have a bed in your premises? A. He stayed with me for a little while when he come out gay. HER HONOUR Q. When he came out of what? A. He come out gay. Q. When he came out as being gay? A. Yeah. POULOS Q. When was that, what time? A. I have no idea about the times. Q. What are you doing there? A. Chopping marijuana. Q. I'll just start the video. That's a very short clip and you seem to be laughing in a way that suggests that you're affected by the drug, is that right? A. Yes." (T 61-62)
Counsel for the plaintiff challenged the tender of this material (T 385, 394-401)
There are frequently problems concerning the tender of social media, CCTV and/or private videotapes made of a party in court proceedings generally and in personal injury proceedings in particular. This is largely due to unfamiliarity of lawyers and legislators with technology and the absence of legislative provisions to enable (or, where appropriate, prevent) the tender of such material. Lawyers and legislators are not alone in this regard; failure to appreciate the evidentiary qualities of devices such as fitbits can take even well-prepared governments by surprise (I Kwai, "What he did on his Summer Break: exposed a worldwide security flaw", New York Times, 30 January 2018).
By way of general observation, where the documentation in question is only in the possession of the party seeking to tender the material, such as photographs taken by that party, tender of the material is generally covered by existing evidentiary rules such as UCPR r 31.10 (in personal injury where discovery is not available) or by the obligation to discover (in proceedings other than personal injury, such as defamation: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264; Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523). However, the social media most often tendered in personal injury proceedings is created by the party against whom the tender is sought, and if the plaintiff has created the record (as opposed to surveillance film) it is hard to see how he or she can be taken by surprise. How can there be an obligation to warn the opposing party that his/her own records are to be relied upon and, if there is such an obligation, when does the Markus principle (Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1) apply?

[19]

The relevant legislation

Rule 31.10 Uniform Civil Procedure Rules 2005 (NSW) provides: "31.10 Plans, photographs, audio-visual recordings and models (1) At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph, audio-visual recording or model at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof. (2) A party who fails to comply with subrule (1) may not tender the plan, photograph, audio-visual recording or model in evidence except: (a) in the case of a prescribed item--where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item, or (b) in any other case--by leave of the court. (3) This rule does not apply to any proceedings entered, or intended to be entered, in: (a) the Commercial List or the Technology and Construction List in the Supreme Court, or (b) the Commercial List or the Construction List in the District Court. (4) In this rule: "audio-visual recording" includes a sound recording or a record of moving images (or both) whether stored on film, audio or video tape, digitally, electronically or by any other means. "prescribed item" means a photograph or audio-visual recording that was made or obtained in connection with the relevant proceedings, by or at the request of a party, for the purpose of testing the credibility of a witness at the hearing."
Many uniform civil procedure provisions encourage pre-trial disclosure as an important means of giving effect to the "overriding purpose" provided for in s 56 Civil Procedure Act 2005 (NSW). However, the "leave" exclusion in the present rule implicitly contemplates the deliberate withholding of "plans, photographs and models" from an opposing party. The occasions when leave of that kind might properly be given are few, and are confined to instances where late disclosure has been thought to be a necessary means of testing evidence of doubtful veracity: Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265 at [89]-[94] and [97]-[101].
The history of the rule is set out in Latimer v Day [2015] NSWSC 11 at [14]-[15]: "[14] Halpin pre-dated the enactment of the present rule and looked chiefly at whether the provisions of the Civil Procedure Act were inconsistent with the Court having the power to make orders of the kind under consideration. Those provisions of the Civil Procedure Act are still relevant when considering whether a party has a legitimate forensic purpose to withhold the documents concerned. Stevenson J in Prasad v AMP Life Ltd [2012] NSWSC 1076 at [22] has usefully summarised the matters to be taken into account. None of the earlier cases concerned surveillance material but such material seems to me to be perhaps the best example of material that might be sought to be withheld. [15] The recordings on the four DVDs exhibited to the affidavit of Paul Baram of 21 January 2015 contain hours of recordings. I have viewed samples of each of the DVDs but time has not permitted me to view the entirety of the material. Mr Weinstein of Senior Counsel gives me his assurance that he, his junior and his solicitor have viewed the entirety of the material, that there is nothing in the material that could be thought to assist the Plaintiff's case, and that the material is such that if disclosed would enable the Plaintiff to tailor his evidence or to consider doing so. These are the two significant matters to consider derived from Markus and the other cases. I accept that assurance. It accords entirely with the impression I gained from the various excerpts of the recordings that I have viewed."
As I noted in Foong v Ghaly [2017] NSWDC 303 at [30], I am unaware of any decisions restricting the tender of social media either pursuant to UCPR r 31.10 or pursuant to s 135 Evidence Act 1995 (NSW). Its tender appears to be widely accepted, and I have proceeded on that basis.

[20]

The Markus principle - Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1

The most common instance in which non-disclosure of this kind has been thought to be appropriate concerns the use of surveillance film in personal injury proceedings where there is an issue about a plaintiff's good faith: Naylor v Preston Area Health Authority [1987] 1 WLR 958 at 967 and 973-4; McGuinness v Kellog Co of GB Ltd [1988] 2 All ER 902.
Some cases have held that non-disclosure may be a necessary and even an essential aspect of "procedural fairness": Australian Postal Commission v Hayes (1989) 23 FCR 320; Robbins v Harbord (1994) 62 SASR 229; BHP Pty Co Ltd v Mason (1996) 67 SASR 456. It is doubtful whether the potential justification for non-disclosure can really be put as a matter of a defendant's entitlement to procedural fairness: Re Applicant and Deputy Commissioner of Taxation (1995) 41 ALD 683; Oliveri v Administrative Appeals Tribunal (1997) 50 ALD 190 at 194; Kingham v Cole (2002) 76 ALD 389 at [21]-[26] (the argument elevates a useful forensic technique to the status of a mandatory legal rule).
Nevertheless, the potential justification for withholding inspection of this kind of material is explicitly contemplated in r 31.10(2) UCPR, and consistent that potential justification there is a recognised suggested practice for ex parte applications to obtain leave under the present rule: McGuinness v Kellogg Co of GB Ltd [1988] 2 All ER 902 at 905; [1988] 1 WLR 913 (supporting affidavit and specific identification of the material being withheld).
In the present case, no objection was taken to the tender of the plaintiff's text messages, but my observations as to the reliability of such records would apply in relation to the telephone text messages as well as to other forms of social media and electronic records tendered in these proceedings.
The most significant document is Exhibit 1, which shows the plaintiff exchanging messages with the first defendant as set out above. I am satisfied that at or before 5.00pm on 8 August 2013, or as late as around 9.00pm, the plaintiff left her residence in a car driven by the second defendant for the purpose of purchasing ice from a person named Crystal in Argenton. I am satisfied that the plaintiff and second defendant consumed that product (see Exhibit 4 at paragraph 3) and that at around 10.00pm on 8 August 2013 she then text messaged the first defendant wanting more drugs, adding that he should "come chill with me and Kurtyboy", which indicates that the plaintiff was not at that time with the first defendant. The plaintiff and the second defendant arrived at Ms Davey's house at approximately 11.00pm and, in circumstances which are unclear, the first defendant was present as well. All of these six people smoked weed/cannabis out of a bong, this weed having been provided by Ms Davey (T 159 (Ms Davey), 160, 272, 296, 420, 443 and 480). All of those present smoked at least two cones of ice through an ice pipe as well (T 441, 480, Exhibit 5). This is in addition to the amounts of drugs already consumed by the plaintiff and the second defendant while at Mount Sugarloaf.
After they had smoked the ice, the plaintiff still wanted more. She told the group that she had some items she could swap or exchange as collateral, being her brother's iPod and a Navman. She said this in the presence of the other five persons present. This led to the plaintiff, the first and second defendants and Ms Davey travelling in the second defendant's car to go to the plaintiff's home to obtain items to exchange for drugs (T 482). They remained outside while the plaintiff came out a little while later with the items she intended to swap. Although the plaintiff said that her mother had given the iPod in question to her and it was no longer her little brother's, the plaintiff's mother did not say so, and the plaintiff's brother was not called. Judging by the plaintiff's response to the failure to return the iPod, I am satisfied that it did in fact belong to her younger brother.
The sole purpose of the trip to Argenton was to procure illegal drugs for their joint use. While the party also purchased some cigarettes, there is no evidence that this was the purpose of the trip, or that these could not have been obtained from some other source closer to Ms Davey's place of residence.
The occupants of the vehicle all smoked some ice while parked in the nearby Bunnings car park (T 486) which, since they were present for half an hour to 40 minutes, is likely to be between one to three pipes of ice. It was following this that the second defendant acceded to the first defendant's request to drive the vehicle and the accident occurred. At the time of the accident, all of the parties were aware of the difficulties if the ice was discovered. I am satisfied that while Ms Davey and the first defendant were responsible for hiding the ice in the bush near the vehicle so that they could go back and get it later, this was conduct which was acknowledged or authorised by the plaintiff, in that she was indignant that they did not keep the ice for her to smoke later as her text messages show (Exhibit 1; see also T 92 and 163).
It is not in dispute that the first defendant pleaded guilty to offences which included driving a motor vehicle with an illicit drug present in his bloodstream.
The plaintiff explained the statement she made in a text from her hospital bed as being that she was retrospectively claiming ownership of the ice because her brother's iPod had not been returned (T 157, 249-250). She is painted in her submissions as being merely a passenger in a vehicle where the relevant transactions are done by the first and/or second defendant and not by her.

[21]

The first defendant

The first defendant did not give evidence at either the initial or the adjourned hearing. There were statements from the bar table by Mr Poulos QC that he had been available at the hearing when it commenced in 2016 and that he had been seen within the precincts of the court, and he sought confirmation of this from some of the witnesses.
The second defendant was called after the adjournment of the hearing, but it should be noted that there has been a substantial change in the relationship of the plaintiff and second defendant during this time period. The first defendant, however, was not called. The plaintiff asks me to draw a Jones v Dunkel (1959) 101 CLR 298 finding as to the failure to call the first defendant to give evidence.
For the presumption to be drawn, the missing party must be required to explain or contradict evidence before the court. The principle will not apply to persons who, if called, would give the same evidence as others, but the fact that the evidence may be cumulative in nature is not a guarantee that the presumption will not be drawn.
The defendants rely upon Exhibit 20, an affidavit setting out all the steps Ms Kennedy took to locate the first defendant. This included the retention of professional process servers to secure the attendance of the first defendant at the part-heard hearing for the purposes of giving evidence. Her evidence that the first defendant could not be located by her or by the professionals she engaged is unchallenged. Nor was the evidence of the second defendant that he did not know the whereabouts of the first defendant challenged (T 475).
I do not propose to draw any Jones v Dunkel inference in relation to the absence of the first defendant. It would appear that he was available for the hearing which was adjourned at the conclusion of the plaintiff's evidence, but that he subsequently could not be located.
Independently of the Jones v Dunkel finding, the plaintiff asks me to accept her evidence that the first defendant "felt okay to drive and believed his state of impairment was such that he thought an accident of the kind which occurred was not possible or even foreseeable" (see submissions in reply, paragraphs 12 and 13). This brings me to a consideration of the evidence available as to the degree to which the first defendant was affected by drugs and the degree to which this would have been observed and/or known to the plaintiff.

[22]

Evidence as to the degree to which the first defendant was affected by drugs

It is clear, from the evidence provided to Dr Perl and the police by the first defendant (Exhibit 10) that the first defendant lied concerning his drug intake, stating that he had only smoked some marijuana "at around 11 o'clock or lunchtime [sic]" and that he was "trying to get" some speed or ice when he had the accident (page 1 of Dr Perl's report, dated 4 August 2014). Dr Perl considered he was "most likely" impaired by methylamphetamine and possibly cannabis (page 2). In the absence of any information as to the frequency of drug use by the first defendant, Dr Perl was unable to say "beyond reasonable doubt" that his driving was impaired "although I could not exclude some impairment being present at the time of driving due to the methylamphetamine and cannabis (THC) in his blood" (p. 3).
In a subsequent report dated 13 October 2017, Dr Perl was provided with a series of assumptions based on the evidence of what had occurred on the night of the accident (Exhibit 10). She concludes that he was in the acute phase of intoxication in relation to methylamphetamine (p. 6), one of the effects of which was wakefulness even during long night hours, and that his manner of driving was consistent with this (p. 6). Cannabis would have had an additive effect (p. 8), in that cannabis-affected drivers tend to weave around. She concludes: "In summary, … I am of the opinion that it is more likely than not that at the time of the collision [the first defendant] would most likely have been under the influence of methylamphetamine and his driving skills would have been impaired. The manner of driving suggests at least a moderate to possibly high degree of impairment being present. His manner of driving suggests a high degree of impulsiveness, aggressiveness of driving and risk-taking behaviour and in the event of loss of control, the effects of both methylamphetamine and cannabis are likely to have reduced his ability to retain control of the vehicle, particularly since, as a young 18 year old driver, he is likely to have had less experience with driving than a much older person." [pp 9 - 10]
In other words, the accident was a direct result of the first defendant's driving skills being impaired by the drugs he, the plaintiff and the other two persons in the vehicle had shared after the plaintiff had contributed the surreptitiously removed item belonging to her brother to exchange for drugs for all of them.
Mr Poulos QC noted that Dr Perl's report was "clear" as well as "uncontested, un-cross-examined" (T 992). Mr Maxwell submitted that Dr Perl had examined the wrong person, in that the real question was whether the plaintiff was able to recognise the first defendant was affected by drugs to the extent of not being able to drive.
Dr Perl's report is of significance in relation to the defence of joint illegal enterprise as well as to contributory negligence, in that it sheets home the cause of the accident to the joint drug-taking by the parties, which would not have been possible if the plaintiff had not provided the wherewithal to enable purchase of the drugs from the drug dealer to whose home they had driven.
As to contributory negligence (upon which I have made alternate findings as set out below), I am satisfied that the plaintiff was well aware of the amount of drugs consumed by the first defendant because she was consuming them together with him and also that she was well aware of the effect that taking such drugs would have.

[24]

Mr Jacob Stuart

Mr Stuart, a manager at McDonalds, is a friend of the second defendant. He worked in that restaurant with the second defendant (in 2012) and Corey Hoover (the plaintiff's current partner. He mixed in the same drugs scene as the witnesses and parties did. He described Corey Hoover as a regular drug user, including the period prior to when he went to live with the plaintiff (T 860).
Mr Stuart first met the plaintiff on 28 November 2016, when she was at the Gateway Hotel, and described her as being drunk and stoned (T 852). This was about six weeks after she had had the surgery which led to these proceedings being adjourned. He told the court they left the Gateway Hotel at about 3 o'clock and went back to the Plaintiff's house in Cardiff where they got stoned together and hung out until about 7:00 am (T 852).
The second defendant was living in the property occupied by the plaintiff and Mr Stuart was a regular visitor. He observed the plaintiff performing a number of household tasks over this period such as maintaining the yard and cleaning her home (T 855-856). He said she regularly complained of back pain while doing so but was able to perform these tasks nevertheless. He said she attended to her daughter Ciara's needs herself, although regularly complaining of pain when she did so, such as when she lifted Ciara (T 880). He often saw her rub her neck. Mr Stuart said he observed the second defendant undertaking the cooking, helping around the house, vacuuming, washing the plaintiff's clothing on occasion and hanging it out for her and mopping the floor on occasions, and mowing the lawn T 879-880).
Mr Stuart also observed the plaintiff using drugs regularly over this period. He himself was a drug user and said that on one occasion he had purchased drugs from Corey Hoover (T 858 - 860). He often smoked marijuana with Corey Hoover and the plaintiff (T 861).
Mr Stuart took part in the bushwalk shown in film in the documentary evidence. He said that the plaintiff ascended the hill walk at Mount Watagan without any difficulty and that everyone consumed marijuana in the car before driving home (T 864-865). He also saw her under the influence of ice in 2017, with her friend Kristylee (T 867).
Mr Stuart said he had seen the plaintiff sell her pain medication to a man named Hayden (T 866).
There was no love lost between the plaintiff and the second defendant following his ejection from the plaintiff's home. Mr Stuart, who was in a relationship with the second defendant, took his side in disputes. In cross-examination, he admitted that he was upset with the plaintiff on the night she threw him and Kurt out of the Cardiff house (T 872). However, he denied saying words to the effect of "I'm going to get back at you. I'm going to destroy your case" (T 872) and denied that he was trying to assist the second defendant to destroy the plaintiff's case: (T 876). Mr Stuart also gave evidence of the incident outside the court where he observed Corey turning around and putting his hand in his fist and saying words to the effect of "I'll see you later" outside the court (T 870).
In another incident, Mr Stuart claimed that he had been told by Mrs Bevan "You have some audacity showing your face here" while he was at court. She also said words to the effect of "I still know that you're employed at Allambi" (T 869).
These events culminated in the incident outside the court: "As we were crossing the road, I was talking to Kurt and just kind of paying attention to the ground, and as we'd gotten off the intersection I looked up and saw Chloe and Corey. Chloe said to Kurt as we were walking past, "You get your dick sucked for money" to which Kurt said something, I think it was a slut or something, and I kind of pushed him and get in the court house, like "That's enough of that, don't engage, it's not worth it." And as we were saying that Corey turned around and he put his hand in his fist and said I'll see you later, or something like that. Something along those lines. Q. You're indicating the same gesture? A. Again, exact same like you know, hand, fist, I'm a big tough guy, your face is going to get it." (T 870)
One of these incidents was captured on CCTV (T 601) and was viewed by the parties as a result. As indicated at the commencement of this judgment, I do not consider that these confrontations are of significance in terms of fact or even credit findings. The reason for including them is to demonstrate that, as part of the culture of drugs in which all the witnesses (except the plaintiff's mother and grandmother) participate, angry confrontations of this kind appear to be part of the modus vivendi. The level of hostility and anger over quite small incidents (such as the reasons for the plaintiff ejecting the second defendant from her home) is just a part of the disinhibited culture of their lives. As noted elsewhere in this judgment, the plaintiff had a similar confrontation with Ms Madden over what appears to have been a trivial matter.
Mr Poulos QC submits that I should regard Mr Stuart as a reliable and honest witness; Mr Maxwell submits that he is unreliable and out to help the second defendant destroy the plaintiff's case, by giving false evidence about her level of physical activity and drug use.
It was put to Mr Stuart that he was looking to the second defendant for directions concerning his evidence and that he was motivated by anger in giving evidence against the plaintiff: "Q. Is that the reason why you keep looking to the back of the Court? A. I didn't notice that I was looking to the back of the Court. Q. Are you trying to get some direction from Kurt about what to say? A. Not at all. Q. You see when you left the premises in Cardiff at midnight, as you say, it wasn't a very happy moment was it? A. Not at all. Q. And in fact, you are very angry with Chloe? A. I'm very angry with Chloe? Q. You were very angry with Chloe that night? A. I was upset, yes. Q. Kurt was too, wasn't he? A. Yes. Q. He said things like "I'm going to get back at you. I'm going to destroy your case" or words to that effect, didn't he? A. No. Q. You've come here today to do precisely that, haven't you? A. No. Q. To make up stuff? A. No. Q. Were you asked to give evidence at all last year? A. No. Q. This year? A. Yes. Q. What time? When? A. I was asked - not asked to give evidence. I was told that I may be required to show up here in Court and give evidence. Q. When was the first time that you were asked in that way? A. About a month ago?" (T 871 - 2)
Mr Maxwell put this again at T: Q. During that time you saw Chloe's mother? A. Yeah I met her once. Q. You met her many times in that - if you were there, you met her many times? A. The lady that was out there having a go at me yesterday? I've met once. Not yesterday sorry. Q. So if I say to you that she went over regularly to help Chloe with her housework, you say you didn't see her? A. I'd say that's a lie. Q. If that were true, you certainly didn't see her except on the one occasion? A. Yeah. Q. So perhaps you weren't there when she went there? Fair? A. Perhaps, it's a small window of opportunity, but if she could make it there in time I'm sure she did. Q. So you're here trying your hardest to assist in destroying Chloe's case, aren't you? A. No, what I'm here for is the fact that my boyfriend's been subpoenaed and I was asked to come to Court again today. I had to change my shift. Q. You want to support what he wants to do, don't you? A. No what I want to do is get these people to leave my boyfriend, and if this will end it, then yes. Q. You're prepared to say anything to do that, aren't you?" (T 876)
Mr Stuart once again denied he had come to court to tell lies.
Mr Stuart was not in fact caught out in any lies, nor did he answer questions in an evasive way, although at times he was confrontational, as the excerpt above demonstrates. However, he gave frank and fair evidence about the plaintiff's household activities which included appropriate concessions as to her complaints of pain and assistance by other persons (mostly the second defendant). He is a partial witness, but not an untruthful one; he is more likely to put the second defendant's contribution to the housework in a favourable light than may be the case, and to simplify the degree to which the plaintiff was in pain, but I do not regard his evidence as false. In particular, I accept his evidence on drug-taking by the plaintiff because it is consistent with the documentary evidence as well as with the evidence of other witnesses such as Ms Madden. His evidence contributes to the picture of the plaintiff as a regular and by now experienced drug user, in whose daily life drugs have played a role over an extensive period.

[25]

Coroborrative evidence of Ms Madden concerning the plaintiff's drug-taking activities

The hostility between the plaintiff, Mr Stuart and second defendant bears similarity to the relationship between the plaintiff, Ms Madden and Ms Davey, as the following extract from Ms Madden's evidence (set out on other issues above) demonstrates: "Q. What were the circumstances that you left Cara-Lee Davey's house? A. I didn't leave on good terms with Cara-Lee or Chloe. Q. What happened? A. The night before I told Cara-Lee that I was moving out Chloe and I had gotten into a confrontation and it actually escalated to Chloe pushing me up against a fridge and resulted to me spending about an hour in the bathroom crying. The next morning I woke up and Cara-Lee and I had gotten into a fight and I left and told her that I was moving back to my mum's house and Cara-Lee came over there and was trying to - because I owed her dad some money for rent, she tried to steal my phone and take the - and say that it was going to be used to pay back the rent and then it resulted in Cara-Lee hitting me with her car. HER HONOUR Q. It resulted in what? A. Cara-Lee Davey hitting me with her car. Q. She hit you with her car? A. Yes. Q. Can you describe what was involved in that? A. I - she had my phone in the front seat. I tried to get it out of the back seat and she reversed over me on the main road of my house. POULOS Q. You broke your arm? A. No, no, I didn't break anything. I wasn't - she - I tried to get my phone out of the back seat, she reversed, hit me and I fell to the ground on the main road." (T 450.10-.39)
This history of hostility and violence is unpleasant, but it is necessary for the evidence to be before the court so that an accurate picture of the plaintiff's lifestyle can be drawn.
Ms Madden gave the evidence foreshadowed by Mr Poulos QC concerning the plaintiff providing sexual favours in exchange for drugs: "Q. I see. I know there have been many episodes of you meeting both Chloe and Cara-Lee Davey. Did Chloe and Cara-Lee Davey often keep company with one other? A. Sometimes but a lot of the time it was all three of us. Q. Did you ever observe either of them, and if you can just answer this question yes or no, engage in any sexual activity which resulted in them obtaining some benefit? A. Yes. Q. If so, firstly deal with the plaintiff Chloe Bevan, what did you observe? A. Sorry, can you ask that again? Q. Chloe Bevan did something of a sexual nature to obtain a benefit, do you agree with that's what you just said? A. Yes. Q. What was that? A. One time when Chloe and I were at a friend's house there was another man - … A. Okay. One time Chloe and I were at a friend's house, we got asked to go over there with two boys and us. Chloe had said that she will engage in sexual oral activity for gas and then ended up getting $150 of gas for then doing that activity. POULOS Q. Did she tell you that? A. Yes, I was there, I witnessed it. Q. Did you actually see her do that? A. No. Q. Did she tell you she's obtained something, did she show you something? A. Yes. Q. What did she show you? A. She showed me a bag of gas and then we smoked the gas. Q. Just for the purposes of the transcript, what is gas? A. It's speed. Q. That's another form of methamphetamine? A. Yes. Q. When was that? A. That was after the accident. Q. Where was it? A. It was a guy's house named Andrew, who was a friend of ours. Q. What suburb? A. I believe it was in westie, I couldn't remember if it was Barnsley or Killingsworth, it was one of those suburbs. Q. Did she do something in respect of her telephone to obtain some form of benefit? A. Yes. Q. What was that? A. She used to get guys on Facebook to buy her credit or cigarettes in exchange for naked photos or dirty text messages or-- Q. How do you know that? A. Because she used to tell us. Q. Did you ever see anything on the phone? A. No. Q. She just told you that that's what she did? A. Yes. Q. When you say obtained credit, how does that work? A. You can buy other people credit through your - through your credit card and give it to them, and you just give them the ten number to punch into their phone and then they receive the credit. Q. Did she do that before or after the accident, to your observation? A. I believe it was after the accident." (T 451.1-453.30)
Ms Madden also described seeing the plaintiff sell drugs before the accident: "Q. Did you ever see Chloe give drugs to other people? A. Yes. Q. What kind of drugs were they? A. Gas and marijuana. Q. What, did she just gift it to them or was it some kind of transaction? A. It was a transaction, so she'd sell it for cash. Q. Was that before the accident or afterwards? A. Before the accident." (T 456.6-.16)
In cross-examination it was put to Ms Madden that she felt animosity to the plaintiff because of the circumstances in which she was assaulted by the plaintiff and then run over by Ms Davey, which Ms Madden denied (T 460.33-.50). She was challenged about her truthfulness in relation to the occasion when she said the plaintiff had offered herself for sex in exchange for drugs: "Q. One of the things that you said was that Chloe exchanged sexual favours for gas? A. Yes. Q. That occurred before the accident, didn't it? A. No, it occurred after the accident. Q. Was that whilst you were still at Cara's? A. Yes. Q. You suggested that the person involved, sorry, it was at a person's house? A. Yes. Q. Who was that? A. Andrew's house. Q. Andrew was having a relationship with Chloe at the time, wasn't he? A. I believe they weren't having a relationship but Chloe did engage with sexual acts with his friend. I don't remember what his friend's name was. Q. You know, don't you, that Chloe had a sexual relationship with Andrew? A. She had, in the past, yes. Q. I'm suggesting to you that at no stage did she say that she was going to do a sexual act for the purpose of getting gas? A. Yes. HER HONOUR: No, what's being put to you is that you're lying or it didn't happen. MAXWELL Q. I'm saying you're making that up? HER HONOUR Q. Do you agree that you were wrong and you made a mistake in your evidence or do you say no, your evidence is right and he's wrong? A. No, my evidence is correct." (T 462.3-41)
If this incident occurred after the accident and while the plaintiff was living in Ms Davey's home, that would place it between January and June 2014, as she left Ms Davey's home in mid-2014 to live with another friend, Jess (T 39). While the plaintiff told the court she commenced a relationship with Graeme Boatswain at the end of 2014 (T 168.30-.44) and the child of that relationship was born on 26 July 2015 (T 39.27), the picture she painted of her life prior to that time was that of a person in constant pain unable to socialise. This corroborates Mr Stuart's observations in relation to her conduct in late 2016 and 2017 and suggests a continuing pattern.
Further corroboration came from social media texts tendered in an application to reopen which occurred part way during the closing submissions.

[26]

Additional evidence from the second defendant

After the hearing concluded, the defendants sought leave to tender additional evidence in the form of social media entries in which the plaintiff entered into a transaction to sell drugs.
Although this new evidence was initially challenged, first on the basis that it was not new but predated the closing submissions (a submission now agreed to be incorrect) and that there was no evidence the plaintiff had posted it herself, these objections were then withdrawn.
The plaintiff did not give evidence or otherwise challenge the contents of this material. The new evidence tendered is instead the subject of the following admissions: "1. At one point in time between 1 March 2018 and 15 March 2018 the plaintiff participated in a Facebook Chat Group called Fat Mix (Chat Group). 2. While participating in the Chat Group at the said point in time, the plaintiff offered to sell ecstasy tablets in response to an enquiry from another participant in the Chat Group. 3. The words "180 babe x" and "25 for pingas x" in Annexure A were posted by the plaintiff at the said point of time. 4. The large photograph in Annexure A was also posted by the plaintiff at the said point in time and depicts 6 ecstasy tablets." (Exhibit L)
Exhibit A consists of a photograph of an entry from the Chat Group where a member has sent a message to the plaintiff saying "How much do you do halfas for?" The plaintiff's two responses and picture are in answer to this. What those answers show is that the plaintiff was not only offering drugs for sale but also that she was offering a discount for a bulk purchase (Mr Wilson explained that a purchase of 10 tablets meant a discount from $25 to $18 each).
Mr Wilson submits, and I agree, that the relevance of this additional evidence is that it goes to the following issues: 1. The credit of the plaintiff: As is noted above, it was put to the second defendant that he had "made up… deliberately" (T 560.37- 561.33) his evidence that he had seen the plaintiff send text messages to sell drugs. Although Mr Maxwell put it to me that one drug sale in 2018 did not mean that the plaintiff had been selling drugs prior to that date, the language of the Chat Group exchange, in the context of the other social media and videos of the plaintiff, indicates that the plaintiff is too comfortable with drug transaction procedure and language for this to be a one-off transaction. 2. Consistency of evidence: This evidence is consistent with the evidence of Ms Madden and the second defendant. It was put to both these witnesses that they were motivated to lie by reason of their animosity. Although Mr Maxwell submitted that, for this reason, I should not accept these witness' evidence where it contradicts the plaintiff, this new evidence, when added to the previous social media evidence and other reliable contemporaneous documents such as the McDonalds records, confirms that the plaintiff is a drug user of long standing and that her activities in this field go beyond mere consumption of drugs. It confirms my finding that, where there are inconsistencies between the plaintiff and these witnesses, I should not accept the plaintiff's evidence is corroborated by contemporaneous records or by a witness of credit. 3. Past and future financial loss and vicissitudes: The plaintiff's employability and prospects of successfully obtaining employment must be at risk if she is engaging in drug sales in contravention of the law. If she is able to engage in the profitable business of drug selling, that is also relevant to her economic loss claim.
While the plaintiff consented to the tender of this additional material, in the event that I had been required to rule on this issue, I note two evidentiary issues of relevance: 1. First, I note the discussion in Merhi v Ford Motor Company of Australia Ltd [2014] VSCA 328 as to the desirability of admitting evidence as to credit of this nature (cf Hunter v Transport Accident Commission 2005 VSCA 1, where no questions regarding credit arose). 2. Second, I note there may be admissibility issues in relation to screenshots, which is generally not the subject of challenge (see, for example, Crescent Funds Management (Aust) Ltd v Crescent Capital Partners Management Pty Ltd [2017] FCAFC 2 at [90]-[92]) but such evidence has been ruled inadmissible as hearsay in several recent decisions (Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474; Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 3) [2017] FCA 60 at [258]; ACCC v Air New Zealand Ltd (No 5) (2012) 301 ALR 352 at 356 [15]).
It was open to the plaintiff to argue these points but she has not done so.
As to the failure of the plaintiff to give evidence as to the circumstances of this documentation coming into existence, Mr Wilson asked me to draw a Jones v Dunkel inference. Further evidence and cross-examination is common in such circumstances; in Merhi v Ford Motor Company of Australia Ltd the proceedings were remitted to the first instance court so that the party against whom the new evidence was tendered could be cross-examined on its contents.
I further note that this evidence is also of relevance in relation to my earlier rulings when the plaintiff was questioned about whether she had sold drugs or sold her sexual favours for drugs. If I had not permitted those questions under s 41 or s 55 Evidence Act, Exhibit 22 and Exhibit L would have been caught by that ruling. At the time, the only evidence Mr Poulos QC could draw to my attention was two witnesses who would say to the contrary, in circumstances where his proposed questions fell well within the parameters of questions Adamson J considered should not have been allowed in Let's Go Adventures Pty Ltd v Barrett. The tender of this further evidence shows the need for caution by trial judges in taking too restrictive an approach to cross-examination in the course of a trial.
Exhibits 22 and L also confirm the evidence of Ms Madden, who was residing with Ms Davey during the period in which the accident occurred.
This brings me to a consideration of the issues raised by the defence of joint illegal enterprise in common law.

[28]

"Joint illegal enterprise" and Miller v Miller (2011) 242 CLR 446

The history of the development of what is often referred to as "the joint illegal enterprise defence" is set out by James Goudkamp in "The Defence of Joint Illegal Enterprise" (2010) 34 Melbourne University Law Review 425. Mr Goudkamp, writing before the High Court handed down its decision in Miller v Miller, makes the general observation that the defence will only be enlivened when a two-stage test is satisfied as follows: 1. The plaintiff suffered damage while engaged in a criminal enterprise with the defendant; and 2. The nature of the enterprise is such that it would have been "impossible" or "not feasible" to ask how the reasonable person in the defendant's position would have acted.
In Jackson v Harrison (1978) 138 CLR 438 the defendant was known by the plaintiff to be disqualified from driving but was nevertheless held by the majority (Mason, Jacobs, Murphy and Aitken JJ; Barwick CJ dissenting) to be entitled to recover damages. However, in Miller v Miller at 50-56 the High Court put this decision in the category of cases of "limited use" (at 56) on the basis that it is the relevant statute and its purposes that must be the focus of attention, rather than discussions of public policy generally. Similarly (at 57-69), the High Court noted that the doctrine of proximity had now been repudiated, but (at 62) this did not mean that the correctness of the result was in doubt. The factual situation in Gala v Preston (1991) 172 CLR 243 is particularly relevant to the circumstances here in that the injured person was one of a group of friends who stole a car after drinking for the purpose of committing breaking and entering offences.
The relevant principles are best determined by analysis of Miller v Miller, where the majority described the issues as follows: "16. Second, and more fundamentally, the issue that is presented by observing that a plaintiff was acting illegally when injured as a result of the defendant's negligence is whether there is some relevant intersection between the law that made the plaintiff's conduct unlawful and the legal principles that determine whether the plaintiff should have a cause of action for negligence against the defendant. Ultimately, the question is: would it be incongruous for the law to proscribe the plaintiff's conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct? Other questions, such as whether denial of liability will deter wrongdoers or advantage some at the expense of others, are neither helpful nor relevant. And likewise, resort to notions of moral outrage or judicial indignation serves only to mask the proper identification of what is said to produce the response and why the response could be warranted."
The reasons for the plaintiff succeeding in Miller v Miller were twofold. First, although she had entered the car knowing the plaintiff had been drinking, and probably that he was unlicensed, when he started to drive the car dangerously she asked him to slow down and then made two requests to be let out of the vehicle. These requests were refused by the defendant who then crashed the vehicle. The majority held at [101]: "The refusal to find a duty of care between those complicit in the offence follows from the more precise identification of the way in which the statutory proscription of illegal use of a vehicle seeks to promote road safety. The offence of illegally taking and using a vehicle is dealt with as it is because of its association with reckless and dangerous driving. The statutory purpose of a law proscribing dangerous or reckless driving is not consistent with one offender owing a co-offender a duty to take reasonable care. And in a case where two or more are complicit in the offence of illegally using a vehicle, the statutory purpose of the law proscribing illegal use (here, s 371A) is not consistent with one offender owing a co-offender a duty to take reasonable care. The inconsistency or incongruity arises regardless of whether reckless or dangerous driving eventuates. It arises from the recognition that the purpose of the statute is to deter and punish using a vehicle in circumstances that often lead to reckless and dangerous driving."
Heydon J said at [108]: "HEYDON J. I agree with the conclusion of the majority that, at least up to the time when the appellant made two requests to be let out of the car, the respondent owed the appellant no duty of care. However, there has not been a satisfactory demonstration by the appellant, in the circumstances of this case, that those requests constituted a withdrawal by the appellant from the common purpose of using the car without the owner's consent, and that thereafter a duty of care arose."
The facts of this case make it clear that the statutory purpose of the law, in terms of prohibiting illegal use of a vehicle, is inconsistent with one co-offender owing another co-offender a duty to take reasonable care, as is noted at [101].
Is the mere taking of drugs sufficient to amount to what has been called "turpitude"? The decision of the High Court in Miller v Miller was the subject of consideration in McCracken v Smith [2013] EWHC 3620 QB at [43] as follows: "On Lord Sumption's approach in Les Laboratoires Servier, the first question to consider is whether Daniel's conduct amounted to "turpitude" for the purposes of the ex turpi causa defence. In the light of my previous findings, the conduct in question must be taken to have been Daniel's participation with Damian in a joint enterprise to ride the bike dangerously. I have no doubt that such conduct did amount to turpitude. A person who drives a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence contrary to section 2 of the Road Traffic Act 1988, punishable on conviction on indictment by up to two years' imprisonment. Dangerous driving was at the heart of the conduct found to engage the ex turpi causa principle in Pitts v Hunt; see also, for example, the Australian case of Miller v Miller referred to at paragraph 36 above. On no view is it a trivial offence. At one point in argument there appeared to be a suggestion that it might fall to be treated in the same way as an offence of strict liability, since the standard of dangerous driving is an objective one: by section 2A of the 1988 Act, a person is to be regarded as driving dangerously if and only if (a) the way he drives falls far below what would be expected of a competent and careful driver, and (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous. I see no substance in the suggestion. In any event, the exception for strict liability offences to which Lord Sumption referred at paragraph 29 of his judgment in Les Laboratoires Servier relates to offences where liability is strict and the claimant is not aware of the facts making his conduct unlawful; whereas in the present case Daniel was plainly aware of the facts giving rise to the offence of dangerous driving."
Does the plaintiff need to be a principal offender? This issue was considered in Quine v Keerasawat [2014] WADC 150 by Herron DCJ. Part of the plaintiff's submission appears to be that the plaintiff was a mere passenger in the car driven by the real offenders, namely the first and second defendants, and that they, not the plaintiff, were the offenders. If that is the case, then this submission must be rejected. In basic contractual terms, the plaintiff was the contractor for the illegal goods and the purchaser of them in that she provided the valuable consideration which enabled the parties to acquire the drugs. It was at her behest that the first defendant and second defendant embarked upon the trip for the purchase of the drugs. They were her agents, and she was the principal.
The second reason for the plaintiff's success in Miller v Miller was that there were no relevant statutory provisions in Western Australia which in any way trammelled the entitlement of the plaintiff to claim damages, such as s 54 of the Act, to which the Court specifically referred at [6]: "In many Australian jurisdictions, these questions would require consideration of statutory provisions intended to regulate recovery of damages for personal injury suffered when the plaintiff was acting illegally.(1) There being no relevant statutory provisions of this kind in Western Australia, the issues that arise in this matter turn upon the application of common law principles.
Appearing at footnote 1 is the following: "See, for example, Civil Liability Act 2002 (NSW), s 54."
Mr Maxwell submits that the High Court's reference to s 54 is no mere passing reference. What the High Court is saying, he argues, is firstly that the statute would not have the same effect and secondly that the statute must be pleaded, as if the Civil Liability Act covers the field. I will deal with this challenge to the common law defence first.

[29]

The interaction of the common law with the s 54 Civil Liability Act defence

Section 54 Civil Liability Act 2002 (NSW) provides: "54 Criminals not to be awarded damages (1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that: (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. (2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence). Note: Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence. (3) A "serious offence" is an offence punishable by imprisonment for 6 months or more. (4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981. (5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned."
As noted above, although it has been made quite clear by the defendants that no reliance is placed upon s 54 Civil Liability Act, this failure to plead s 54 is relied upon by the plaintiff to argue as follows: "53. Where relevant statutory provisions exist, they must be applied and will operate to the exclusion of the common law: Central Bayside General Practice Association Ltd v Commissioner of State Revenue (Vic) [2006] 43 at [83]-[84]; Imbree v McNeilly [2008] HCA 40 at [80], [140]. 54. In accordance with the High Court's observation in Miller, it is submitted that s.54 in Part 7 (Self-defence and recovery by criminals) of the Civil Liability Act 2002 (NSW) regulates the common law defence of illegality in New South Wales and therefore applies to the present case. 55. It is further submitted that the common law principles applied in Miller, and relied upon by the defendants, have no application to the present case whatsoever (see, further, paragraphs 112 - 131 below)."
The plaintiff's argument is as follows. The purpose of r 14.14 is to avoid litigious ambush or "trial by ambush" (Ingot Capital Investments Pty Ltd v Macquarie Capital Markets Limited [2004] NSWSC 40 at [26]) and to achieve efficient disposition of litigation by adopting what has been described as a "cards on the table" approach to litigation: Glover v Australian Ultra Concrete Floors [2003] NSWCA 80 at [60]; Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 at [20]-[36], [40]-[46]. Section 54 of the Civil Liability Act 2002 is directed to precluding the recovery of damages in circumstances where a plaintiff sustains injury in the course illegal conduct. The opening words of s 54(1) state that "[a] court is not to award damages ..." and this constitutes a bar to the court not awarding damages for common law defences, in part because of the language and in part because, due to the enactment of s 54, the opposing party would be taken by surprise. Not only would the opponent be taken by surprise where s 54 is not specifically pleaded (as is asserted to be required by r 14.14(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW)), s 54(1) is a provision which, if triggered, would make the plaintiff's claim "not maintainable" within r 14.14(2)(b) and, as such, must be pleaded.
The plaintiff refers the court to Presidential Security Services of Australia Pty Ltd Brilley [2008] NSWCA 204 where Ipp JA (with whom Allsop P and Beazley JA agreed) opined (at [124]) that reliance on s 54(1) of the Civil Liability 2002 (NSW) in answer to a plaintiff's claim for damages must be specifically pleaded by the defendant, noting that, in Hall v van der Poel [2009] NSWCA 436 at [50], Hodgson JA (with whom McColl and Basten JJA agreed) would not have allowed the section to be raised on appeal in circumstances where it had not been pleaded at trial. As the defendants did not plead reliance on s 54(1) of the Civil Liability Act 2002 (NSW), they could not rely on the common law defence, which could only be relied upon if the statutory defence was also pleaded.
The plaintiff adds that, in the absence of any pleading in relation to s 54 of the Civil Liability Act 2002 (NSW) and a want of compliance with r 14.14(2)(a) and (b) of the Uniform Civil Procedure Rules 2005 (NSW), the defendants ought not, as a matter of discretion, be permitted to rely on s 54 of the Civil Liability Act 2002 (NSW). (I note, however, that the defendants have consistently conducted their case on the basis of the common law defence and not the statutory defence, and seek no such leave).
Further, the plaintiff also complains that no particularisation of the alleged offence or offences was ever provided, and there is no explanation as to how this conduct could have made any contribution to her injuries. At its highest, paragraph 5 of the Amended Defence sets out only a temporal coincidence between the conduct and the plaintiff's injuries, namely that she and her companions were purchasing and using drugs.
Finally, the plaintiff added, in oral submissions, that the enterprise could not be a joint illegal enterprise unless it was a "joint offence", whereas the parties were simply obtaining and taking drugs in a group, as opposed to jointly stealing a car, or embarking on the use of the car for some other joint purpose.

[30]

Does section 54 preclude or limit reliance on the common law defence?

I first note that, in Watson v Meyer [2013] NSWCA 243, the failure to refer to the specific provision of the Civil Liability Act was acknowledged to be an oversight; the court did not hold, however, that the common law defence was unavailable. In the present case, however, the decision not to plead s 54 was a deliberate one.
The basis upon which the plaintiff submits s 54 is the only way that such a defence should be pleaded (and that leave should not be granted to permit this) changed throughout the submissions. I have found these changing and at times confused submissions difficult to disentangle.
The most helpful way to approach the issue is to adopt the approach taken by the defendants, namely to consider other appellate authority in relation to other statutory defences, notably volenti non fit injuria.
Judd J in Woodcroft-Brown v Timbercorp Securities Ltd (in liq) [2011] VSC 427 explains at [129], the tortious defence of volenti has been modified by the Civil Liability Act, not replaced, noting that the legislation had used the expression significant risk "in the context of its statutory modification of the tortious defence of volenti non fit injuria". This is one of many explanations of the modification of personal injury law by superimposing the statute over the common law, rather than replacing it with a statutory code. The interaction between the Civil Liability Act and the common law is explained by Joachim Dietrich, "Papers from the Tort Law Academic Workshop: Teaching torts in the age of statutes and globalisation" (2010) 18 TLJ 141 in relation to the legislation passed around Australia: "Some parts of the Civil Liability Acts codify and change aspects of the common law of negligence. That is the case with the sections that state the general principles applicable to determining breach of duty (eg, Civil Liability Act 2002 (NSW) s 5B). In effect, these sections 'tinker' with the common law test for breach of duty. They restate the threshold test of breach, as well as the calculus of negligence factors to be considered in determining whether, ultimately, there is a breach, in slightly different terms to those of the common law principle contained in Wyong Shire Council v Shirt... Since the Civil Liability Acts displace the common law in some of its field of operation, but do not cover the field, one particular challenge may be to determine where precisely only the common law principles apply, where only the statutory provisions apply, and where both still potentially apply, as well as where other, specific legislation applies. Some parts of the Civil Liability Acts may merely provide a gloss or modification of common law principles that have ongoing application and relevance. Hence, s 5G of the Civil Liability Act 2002 (NSW) makes it easier to establish one element of the defence of voluntary assumption of risk, which continues to operate as a common law-based defence".
Mr Poulos QC also draws my attention to s 3A Civil Liability Act, which provides: "3A Provisions relating to operation of Act (1) A provision of this Act that gives protection from civil liability does not limit the protection from liability given by another provision of this Act or by another Act or law. (2) This Act (except Part 2) does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract with respect to any matter to which this Act applies and does not limit or otherwise affect the operation of any such express provision. (3) Subsection (2) extends to any provision of this Act even if the provision applies to liability in contract."
The Civil Liability Act thus expressly acknowledges that not only other legislation but other law, including common law (and defences at common law), may still apply.
Taking the above principles into account, I am satisfied that there is no requirement for the defendants to plead s 54 in order to raise the common law defence, that the Civil Liability Act does not cover the field, that the provisions of the UCPR do not require any additional pleading beyond the common law defence and that no discretionary factors warrant the refusal of leave to rely upon the defence, such as the plaintiff being taken by surprise.
I do consider, however, that the basis upon which the defence has been attacked by the plaintiff should have been articulated either in the pleadings (in the form of a Reply) or in a Statement of Issues. I reject the plaintiff's submission that the failure to file a Reply should be a factor supporting the plaintiff's position.

[31]

The "joint illegal enterprise" asserted to arise in these proceedings

The defendants' claim is that the plaintiff and defendants jointly: 1. Conspired to travel to procure ice from the home of the drug dealer known to them as "Crystal"; 2. Used the second defendant's vehicle illegally for this purpose, in that none of the persons in the vehicle were capable of driving the vehicle lawfully, all of them having already consumed significant quantities of drugs in Ms Davey's home; 3. Procured the ice in exchange for an iPod surreptitiously obtained by the plaintiff from her brother, and then jointly consumed part of it in the vehicle, by use of an illegal device known as an ice pipe; 4. Stored the remaining ice and ice pipe in the vehicle for the purpose of travelling to Ms Davey's house, for the purpose of further drug consumption at that residence (written submissions, 21 March 2018, paragraph 25).
The defendants submit that an integral part of the joint illegal purpose was the illegal use of the vehicle, in that it was driven by drug-affected persons, contrary to law (written submissions, 21 March 2018, paragraph 26). It is therefore incongruent to claim that either of the defendants owed a duty of care to the plaintiff, given their joint involvement in the illegal purposes set out above.
In Holland v Tarlinton (New South Wales Court of Appeal, 18 December 1989, Kirby P, Meagher JA, Hope A-JA), Kirby P (in dissent) explained the history of joint illegal enterprise in motor vehicle accident cases as follows: "Legislative context: compulsory insurance. The provision of compensation to a person injured during, or immediately after being involved in, a criminal enterprise has long been controversial. Before the advent of compulsory third party motor vehicle insurance and statutory accident compensation, the notion that one "criminal" could sue another for personal injuries suffered in the midst of the illegal enterprise would have been fanciful. A series of practical obstacles would have stood in the way. Death was a common penalty for convicted felons. The criminal, if convicted of a felony, would have lost civil rights including the right to sue. Cf Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583. But even if these were not obstacles enough, the participants might be imprisoned for a long time. They would rarely have the funds to secure legal assistance or to initiate civil proceedings. Were they to do so, the chances of actual recovery out of the resources of the co-offender would generally be very small indeed. Accordingly, this area of tort law developed, initially, in a context in which the practicalities agitated against action and militated against recovery. In recent years, however, compulsory insurance has been enacted by Parliament to protect accident victims considered particularly vulnerable to some of the most devastating risks of modern life. Those singled out for this special protection include (in this State) workers in their relationship to employers, and road users (drivers, passengers and pedestrians) in their relationship to negligent road users. In the case of compulsory third party motor vehicle insurance the principle of indemnity was maintained. The insurance existed solely to indemnify the owner or driver of a motor vehicle found negligent by the application of the ordinary law. However, the existence of compulsory insurance has inescapably affected the development of the law of negligence. It has influenced notions such as the duty of care, causation, foreseeability of damage, the defences available and the circumstances in which courts will provide remedies. Courts can go on denying that this is so. But they thereby indulge in a fiction which is dangerous. The development of notions of employer and occupier liability (and of liability of the drivers of motor vehicles) has accompanied, and been influenced by, the provision of compulsory or generally accepted private insurance. In Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 I said (at 518): "It is difficult to deny that statutory schemes of compulsory insurance and the widespread availability of the facility of private insurance have affected the attitudes of the courts towards the development of the [law of negligence]. Although, by conventional theory, insurance must be ignored as irrelevant, its impact has inevitably been felt in the definition of the circumstances in which the consequences of an injury will be left with the injured party or shifted, by means of negligence law, in whole or part to some other person or body upon whom it is considered more fair in the circumstances to cast the burden, or some of it. I do not say that these considerations have always been articulated by the courts in the development of the law. Sometimes, however, reference is made to such undercurrents, even if only obliquely; cf Bankstown Foundry Pty Ltd v Braistina (1986) 60 ALJR 362 at 365;65 ALR at 6-7 and Brady v Girvan Bros Pty Ltd trading as Minto Mall (1986) 7 NSWLR 41. … The real world as it affects the present contest is not a claim only between the severely injured respondent and a fellow "criminal" who with her indulged in a criminal enterprise. Still less is it a claim between her and the entirely innocent owner of the Torana who is the first appellant. The notion that the latter should be liable in the slightest to a person such as the respondent is not a development of the common law. Such would never have occurred. It is the result of a statute specifically enacted to provide for compulsory motor vehicle insurance and to ensure, upon proof of negligence, that an injured person could recover damages for such injuries. See Motor Vehicles (Third Party Insurance) Act 1942, s16. So devastating are the losses that can be caused by such injuries that Parliament has provided in this special way. The common law, governing the recovery by persons injured in motor vehicle accidents, adapts itself to this legislative setting. Any other approach is in my view completely unrealistic." [at 10, 11; emphasis added].
Although not articulated in precise terms, one of the plaintiff's main submissions appears to be that, for policy reasons of the kind adverted to by Kirby P above, the purpose of motor vehicle insurance was to ensure that everyone was covered, no matter what the circumstances of the accident, so long as some degree of liability could be made out.
This "policy" approach to joint illegal enterprise was, however, rejected by the majority in Holland v Tarlinton, who set aside the judgment for the plaintiff and entered judgment for the defendant in proceedings where the plaintiff knowingly travelled in a stolen car. Hope JA, with whom Meagher JA concurred, stated: "The plaintiff's injury had a direct connection with the crime. All four, including Mr Berry and the plaintiff, were riding in a stolen vehicle and were attempting to escape apprehension. The car was being driven on a winding and foggy road. The negligence sued upon was the negligence of Mr Berry in the joint illegal enterprise of driving the stolen car. Had there been no crime there would have been no occasion to avoid apprehension and to drive recklessly. In my opinion the case falls squarely within the ambit of the defence." [at 45].
I note rejection of a similar argument as to the legislation operating harshly and unjustly in Captain v Wosomo [2017] 1 Qd R 222.
The plaintiff's injury had a direct connection with the crime, in that she and the other vehicle occupants were riding in a vehicle while affected by drugs and for the purpose of obtaining more drugs, for which the vehicle was needed. The evidence of Dr Perl shows that all occupants were affected by drugs and the recklessness of the first defendant which led to the accident is in part due to the use of drugs. In those circumstances, the facts of the case fall within the ambit of the common law defence.
The plaintiff's submission was that, if the defendants were entitled to plead the common law defence (which they challenged), it could not be made out unless the plaintiff and relevant defendant committed a "joint offence".
However, the requirements as set out in Miller v Miller require only an illegal enterprise which is jointly participated in by the persons performing their various roles. There is no requirement that the offence in question be jointly committed. The two-stage test requires first a plaintiff who suffers damage while on a criminal enterprise with the defendant and secondly a situation where it would not be feasible to ask how the defendant would otherwise have acted. It is not necessary that the offence be a "joint offence"; joint participation is all that is necessary.
I note the defendants' alternate argument that the plaintiff was complicit within the meaning of s 19 Drug Misuse and Trafficking Act 1985 (NSW) in the illegal procurement, consumption and possession of the drugs in question, as well as being in possession of the equipment with which to smoke it, namely the pipe, prior to the accident.
The defendants draw my attention to Quine v Keerasawat [2014] WADC 150, where Herron DCJ held that the defence of joint illegal enterprise was proved without having to determine whether the plaintiff had breached the "common purpose" offence in s 8 Criminal Code (WA).
His Honour observed at [102]: "[102] It should be noted Miller v Miller did not consider the illegal conduct on the basis the appellant was a s 7 principal offender, however, in my view the test as to whether a duty of care is owed by one person to another when both are jointly engaged in illegal activity, as explained by the High Court, is not any different whether the participants are s 7 or s 8 offenders. It should also be noted that in that case the respondent driver was charged with and pleaded guilty not just to unlawful use of a motor vehicle but also to other offences arising out of his use of the car that night including dangerous driving causing death and grievous bodily harm and driving under the influence of alcohol, unlike Mr Keerasawat who has only been charged and convicted of unlawful use of a motor vehicle contrary to s 371A: Miller v Miller [75]."
What is required is for the parties in question to be "co-adventurers in a joint criminal venture" (Miller v Miller at [37], citing Godbolt v Fittock [1963] SR (NSW) 617 at 624).
I have set out the findings of fact in relation to the plaintiff's role in the joint illegal enterprise which I am satisfied occurred. On those facts, the suffering of personal injury was a reasonably foreseeable consequence of the illegal conduct in which the plaintiff was a participant, namely the supply and use of drugs by all occupants of the car. As the plurality observed in Miller v Miller (at [92]), reckless or dangerous driving by one or other of them is a probable incident of that sort of illegal conduct. The risk of suffering personal injury - even serious personal injury - is clearly a reasonably foreseeable consequence of reckless or dangerous driving.
The plaintiff materially contributed to that risk being incurred. She was not just an active participant but the ringleader. If she had not assisted by taking her brother's iPod and continued to participate in the purchase of more drugs, she would not have faced the risk of the harm which occurred.
I have rejected the plaintiff's submissions that the common law defence does not apply to those facts, as well as the submissions that the common law defence cannot be made out by reason of s 54. There is, however, one final matter which I should note and that is the alternate submission that, if the plaintiff was participating in a joint illegal enterprise, she ceased to do so when she called out "slow the fuck down", in much the same way as occurred in Miller v Miller.
Did the plaintiff cease to participate in the illegal conduct by using those words? Counsel for the plaintiff submitted that determining when the illegal conduct began, continued and ended had to be determined with some specificity. This was in part because the mere fact of engaging in an illegal activity did not, of itself, prevent the plaintiff from recovering damages for negligence.
In Miller v Miller, the plaintiff twice asked to be let out of the car before it ran off the road, and was not allowed to leave. A submission that the plaintiff had withdrawn from the common purpose of illegally using the vehicle was not made at the trial or in the appeal, but it was accepted by the parties that this did not prevent the plaintiff from addressing the argument to the High Court, a not uncommon procedure in the High Court. This would mean that when the defendant ran off the road, he owed a passenger, who was no longer a complicit in the crime which he was committing, a duty to take reasonable care (at [106]). The withdrawal question was acknowledged by the court to be, in the words of Heydon J at [119], as "complex", not least because the point had not been taken at first instance and had been disavowed on appeal. Under the heading "A possible submission for the respondent" (at [122]ff), Heydon J considered at [127] that a request to be let out by himself was insufficient. His Honour's views were, however, by way of dissent, as the majority was satisfied that two requests to be let out of the car were sufficient.
There is contradictory evidence as to whether the plaintiff, Ms Davey, or both of them asked the first defendant to slow down, or whether this was not said at all, which was the evidence of the second defendant. On all of the evidence however, it is clear that any such statement would have been made at best a few seconds before the crash.
On the balance of probabilities, I am satisfied that no such request was made with the intention of stopping the car to let the plaintiff out. She was telling him to drive more carefully, not to let her out.
Even if a request to let her out or to stop the car had been made, it does not amount to a withdrawal from the illegal enterprise. There was no suggestion that the plaintiff wished to be let out of the car so that she could walk home, or use alternative means of transport, rather than being a passenger in a car driven by either of the defendants. Accordingly, this argument must fail.

[32]

Findings of fact

As set out above, I am satisfied that the plaintiff was engaged in drug use over an extended period of time on the day in question, which included the use of cannabis and crystal methamphetamine. After her first and second sessions of drug use at Mount Sugarloaf and then in the home of Ms Davey resulted in the drugs running out, she proposed to obtain a third set of drugs by using an item belonging to another member of her family for the purpose of procuring more crystal methamphetamine (on the balance of probabilities, the iPod belonging to her younger brother) as security to a drug dealer.
The enterprise was joint, in that the plaintiff, the defendants and Ms Davey were all parties to the commission, but the plaintiff was the principal in that she was the provider of the consideration for the contract in the form of the iPod she intended to take from her home. The plaintiff, above all the other participants in the joint illegal enterprise, agreed to make the journey in the vehicle with the knowledge that they were not only going to purchase drugs, but that both defendants who were driving at various times had taken and used substantial portions of drugs in circumstances where the plaintiff knew or ought to have known that the defendants would be affected by the consumption of the drugs and that one or both of them would be unable to control the vehicle and drive it sensibly, given the drug consumption in question.
As noted above, taking all of the above into account, the first defendant's negligent driving of the second defendant's vehicle occurred in the performance of the joint criminal enterprise and was not merely incidental. The vehicle was as essential a part of the criminal transaction as was the iPod and the illegal product purchased: Miller v Miller at [82]. The circumstances in which the defendants drove with the presence of illegal drugs in their blood was similarly an integral part of the enterprise.
Judgment will accordingly be entered for the defendant.
In the event that I have erred in these findings I make the following observations concerning contributory negligence.

[33]

Contributory negligence

The particulars of contributory negligence set out in the Amended Defence are as follows: 1. Travelling in a vehicle driven by the first defendant when the plaintiff knew she should not be travelling in the vehicle as the first defendant was on his Red CP1 Provisional Licence. 2. Travelling in a vehicle where she knew the first defendant had consumed at least five cones of Ice in a period which commenced approximately four hours prior to the accident. 3. Travelling in a vehicle where she knew or ought to have known the driver was affected by illegal drugs. 4. Failure to wear a seat belt whilst travelling in the vehicle. 5. Sitting in the vehicle with her legs across the rear seat of the vehicle. 6. Sitting in the vehicle with her legs across another passenger who was not wearing a seat belt. 7. Failing to direct the first defendant driver to stop the vehicle when the first defendant driver was driving in an unsafe manner.
Section 138 Motor Accidents Compensation Act 1999 (NSW) provides: "138 Contributory negligence - generally (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. (2) A finding of contributory negligence must be made in the following cases: (a) where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the plaintiff satisfies the court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident, (b) where: (i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and (ii) the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment, unless, in the circumstances of the case, the injured person or deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle, (c) where the injured person (not being a minor) or the deceased person was, at the time of the motor accident, not wearing a seat belt when required by law to do so, (d) where the injured person or the deceased person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so. (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage. (5) For the purposes of this Act, a deceased person is taken to have been convicted of an offence if any circumstances exist in respect of the deceased person which, but for the deceased person's death, would have resulted in the conviction of the deceased person for the offence or the proving of the offence against the deceased person. (6) This section does not exclude any other ground on which a finding of contributory negligence may be made. (7) For the purposes of this section, an "alcohol or other drug-related offence" is: (a) an offence of driving a motor vehicle with a particular concentration of alcohol or other drug in the person's breath or blood, or (b) an offence of driving a motor vehicle under the influence of alcohol or other drug, or (c) an offence of causing death or injury while driving a motor vehicle under the influence of alcohol or other drug, or (d) an offence, in connection with the driving of a motor vehicle, of: (i) refusing or failing to submit to breath analysis, to undergo a breath test, to submit to an assessment of sobriety or to provide samples of the person's blood and urine, or (ii) wilfully altering the concentration of alcohol or other drug in the person's breath or blood, or (iii) preventing a sample of the person's blood from being taken for analysis."
Where s 138(2) Motor Accidents Compensation Act 1999 (NSW) is engaged, the assessment of the plaintiff's contribution to the accident is to be determined by reference to Part IA, Div 8 Civil Liability Act 2002 (NSW) pursuant to s 3B(2)(a) of the Civil Liability Act 2002 (NSW).
Section 5R Civil Liability Act 2002 (NSW) provides: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent 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."
Section 5R is based upon the statements of principle set out by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 (see Wells v Council of City of Orange (No 2) [2017] NSWSC 510 at [131]). I will deal with each of the particulars of contributory negligence in turn.
By way of general observation, substantial discounts have been made for contributory negligence where the plaintiff has been travelling in a vehicle driven by a person affected by drugs or alcohol. This has included substantial reduction where the conduct of the plaintiff is itself the result of drugs and alcohol and where the driver has not been so affected (see for example, Vale v Eggins (2006) 46 MVR 514 - contributory negligence finding of 75% upheld on appeal).
It was for this reason that s 5S Civil Liability Act 2002 (NSW) was enacted. While the defendants do not submit that the contributory negligence amount to 100%, it is submitted that a substantial deduction of 80% should be made. The plaintiff's submission is that no deduction should be made (written submissions on liability, paragraph 172).
The difficulty in applying the objective test of contributory negligence to facts involving a drunken person was discussed by Macrossan CJ (with whom McPherson JA agreed and Lee J generally agreed) in McPherson v Whitfield [1996] 1 Qd R 474 at 478 : "The test involved in assessing the extent of the failure to take reasonable care of one's own safety which is what the issue of contributory negligence is concerned with, invites attention to the level of care which can be expected of the reasonable man in the circumstances as they present themselves. If a person should reasonably foresee that he may subsequently be confronted by the necessity to choose whether or not he will as a passenger in a car driven by an intoxicated driver, but nevertheless imprudently proceeds to drink to excess diminishing his capacity to discriminate and reducing his ability to make a reasonably careful decision when the occasion does arise, he may well not escape a finding of contributory negligence. The test which will apply in these circumstances will regard the behaviour to be expected of a reasonable man when the risk of the future eventuality to be confronted should reasonably have been apparent. This is a different situation from that in which a person will be placed where he allows himself to become intoxicated in circumstances where no reasonably foreseeable specific risk to his safety should have been apparent to him. If, in these circumstances, while lacking relevant conscious awareness he is placed into or induced to enter into the car of an intoxicated driver he should not on that account be held responsible for a failure to take reasonable care for his own safety."
This test was cited with approval in Wills v Bell & Ors [2002] QCA 419 at [27].

[38]

Findings concerning contributory negligence

The plaintiff and both defendants participated in a series of drug taking activities which commenced the evening before and continued throughout the night. By the time the accident occurred not only had the parties been taking drugs over an extended period of time but they were tired and, in the case of the first defendant, inexperienced as well as unfit to drive. For the plaintiff to enter a vehicle of a person affected by drugs was always a dangerous step. For her to continue to remain in the vehicle, when the driving was taken over by an 18 year old with limited experience, was even more foolish.
The majority judgment in Cook v Cook (1986) 162 CLR 376, which was not a case of drunk driving but one where the driver was known by the plaintiff to be very inexperienced explains the relevant principle in the following passages: ""In the ordinary action in negligence where the plaintiff is a passenger who has been injured in a motor vehicle driven by the defendant, the relevant relationship of proximity is simply that of driver and passenger and the category of case is the general one which reflects that relationship. In that general category of case, the standard of care required, being objective and impersonal, is not modified or extended by the personal driving history, ability or idiosyncrasy of the particular driver. It is the degree of care and skill which could reasonably be expected of an experienced and competent driver. That is not, however, to say that, regardless of the circumstances of the particular case, the relationship between a driver and a passenger is, for the purposes of the law of negligence, a completely standardised one or that the content of the duty of care where that general relationship exists is necessarily immutable. While the personal skill or characteristics of the individual driver are not directly relevant to a determination of the content or standard of the duty of care owed to a passenger, special and exceptional facts may so transform the relationship between driver and passenger that it would be unreal to regard the relevant relationship as being simply the ordinary one of driver and passenger and unreasonable to measure the standard of skill and care required of the driver by reference to the skill and care that are reasonably to be expected of an experienced and competent driver of that kind of vehicle. … Where such special and exceptional facts transform the relevant relationship, questions of the requisite proximity of relationship and of the standard of any duty of care must be determined by reference to the more precisely confined category into which the particular relationship falls. Assuming that the requirement of proximity remains satisfied, the standard of care, while remaining an objective one, must be adjusted to the exigencies of the relevant relationship in that it will be the degree of care and skill reasonably to be expected of the hypothetical reasonable person of the law of negligence projected into that more precisely confined category of case.""
In Wills v Bell & Ors [2002] QCA 419 Mackenzie J applied these principles in the determination of a defence of joint illegal enterprise and explained this as follows at [54]-[57]: "54. A critical point for the purpose of disposing of the appeal is that, for a defence of voluntary assumption of risk or the "no breach of duty" species of defence to succeed, it is necessary that the plaintiff passenger actually knew that the driver was so intoxicated that he was unable to drive safely but nonetheless can be said to have elected to take the risk from which the injury arose. For that reason the plaintiff's own condition is relevant. If he himself was deprived of the ability to assess the defendant's condition when the decision to travel was made the defence would generally not be made out. 55.On the other hand contributory negligence may have its origin in actual knowledge of the driver's condition, constructive knowledge of it, especially from association with the defendant in circumstances where he is consuming alcohol, or in a situation where the plaintiff is aware of the likelihood that he will travel in the vehicle with the person, that the person is likely to consume alcohol to excess and the plaintiff deprives himself of the ability to assess the defendant's capacity to drive. The degree of intoxication of the defendant need not be as severe as in the case of voluntary assumption of risk or "no breach of duty" since the focus in relation to contributory negligence is whether impairment of a degree where a reasonable person would consider it unsafe to be driven by the defendant exists. The level of incapacity need not be as high and the knowledge as direct as for the other two defences. 56. Cases where it is found that there was no breach of duty or the standard of care required is affected by special and exceptional facts arising from the relationship of plaintiff and defendant are comparatively rare. One troubling aspect of the present case is that the plaintiff and the defendant spent long periods in each other's company during the period they were in Jericho. During those periods each was drinking. The defendant was very significantly affected by alcohol, according to the objective measurement after the accident, although the extent of his intoxication was not apparent to the publican or the police officer who investigated the accident. Even if one were inclined to discount the evidence of the publican in that respect (which would be contrary to the learned trial judge's findings) the police officer's assessment is not easily discounted. 57. While a different conclusion might have been open on the evidence, I have finally come to the conclusion that it is not possible, consistent with principle, to say that the learned trial judge's conclusions that there was no basis in the relationship between the plaintiff and the defendant for imposing a lesser standard of care and that the defendant had not established that the plaintiff had sufficient actual knowledge or appreciation of the degree to which the defendant was intoxicated at the time the defendant took over driving the vehicle can be set aside. I agree with what White J has said in her reasons for judgment concerning joint illegal enterprise. In the result all of these grounds must fail."
Taking all of the above into account, the plaintiff's contributory negligence should be assessed at 25%.
In the event that my observations as to quantum are of utility, I make observations of a general nature. The only passage in this section of my judgment which deals with any issue with overlap on liability is my findings on credit, which relate to the whole of the plaintiff's evidence, but which have been placed for convenience in this section of the judgment.

[40]

The plaintiff's witnesses

The plaintiff called four witnesses whose evidence is relevant to my findings of fact concerning the quantum issues in this case. As I have not accepted the plaintiff as a witness of credit, their evidence may play a vital role in determining whether or not to accept the plaintiff's claims in relation to ongoing disabilities, her employment history and future care and employment.
The plaintiff called her mother and grandmother as family members, as well as her past and current partners, Mr Boatswain and Mr Hoover.
I first note that the plaintiff's history of past home care is unusual, in that she left her family home shortly after being readmitted for further surgery in October 2013 and thereafter lived in a series of homes with friends and, for a period, with her grandmother. She stayed with Ms Davey (the first defendant) for some months, then for a short period with her grandmother (till June 2014), then with someone named "Jess" (from June to December 2014) and then (together with her then partner, Mr Boatswain) with Mr and Mrs Boatswain in their home until shortly before the birth of her child on 26 July 2014.
"Jess" and Mr and Mrs Boatswain were not called. Graeme Boatswain (with whom she was living at his parents' home and then in rented accommodation until they separated in January 2016) did so, as did her current de facto, Corey Hoover. The plaintiff continued to live independently in rented accommodation for part of the time with Mr Boatswain after their separation, so that he could help her in the home with the baby, until Corey Hoover moved in in April 2017 (T 337).
The second defendant also shared the plaintiff's accommodation from March to July 2017. He and his boyfriend, Mr Jacob Stuart, gave evidence about the plaintiff's ability to perform household tasks as well as the drug-related activities going on in the household.
The defendants ask me to draw Jones v Dunkel inferences from the plaintiff's failure to call Jess or Mr or Mrs Boatswain. They also point to the absence of home care evidence given by Ms Davey and the implausibility of the evidence of the plaintiff's partners and grandmother. This is set out in more detail in the section of this judgment on home care.

[41]

The plaintiff's school, work and family history

As the plaintiff was eighteen and a half at the time of the accident, her working experience was necessarily limited. Evidence about her home life was given by her mother and grandmother which put her in a generally good light, although noting she had problems with rebellion and fought a lot with her father. That evidence is set out in more detail below.
Mr Maxwell opened by setting out a short history of the plaintiff's school and working life, noting the plaintiff left Lambton High School in year 10. The plaintiff barely obtained her School Certificate; her school records (Exhibit 12) indicate long periods of suspension, behavioural problems and poor marks. Mr Maxwell told the Court that at the time of the accident she was not working, having resigned approximately two weeks beforehand from a company called Futures Kebabs. She had been working "seven days a week for a period of about six months with that company" and she was looking for other employment at the time of the accident. Her work history was described as "reasonable" up to that time, "despite the psychiatric problems that she had" (T 6). Those "psychiatric problems" are set out in more detail below, as well as a description of the plaintiff's post-accident position.
The plaintiff gave evidence that she had hoped when in year 10 to go to university to study forensic science in terms of long-term employment (T 15). However, the reality was that the plaintiff, whether because she experienced some bullying problems at school (T 14-15) or because of her hearing problems (T 8-9) had difficulties at school, and despite being an obviously intelligent young woman (T 142) was repeatedly absent and on such bad terms with her family that she had been, to use her words, "kicked out of home" (T 85) and had applied for Centrelink benefits.
Documents produced under subpoena gave a clearer picture of these events. She was admitted to Nexus for two weeks in November 2009 with significant behavioural problems (Exhibit 12, pp. 345 - 414). This included risk-taking behaviour, drugs and promiscuity (p. 409).
In addition, the plaintiff was convicted of some minor drug offences. She was charged on 14 May 2015 with possess prohibited drug (resulting in a section 10 dismissal), on 9 August 2015 with drive vehicle with illicit drug present in blood (first offence) and on 15 July 2017 with common assault. She was disqualified from driving for three months following her conviction for the driving offence (Exhibit 11).
The plaintiff ascribed her home difficulties to her father, saying "we didn't ever get along" (T 85). This was not because of her drug taking activities, activities which her father had engaged in "when he was young" (T 85), but because of ongoing arguments between the plaintiff and her parents.
The plaintiff told the Court she had worked at Hungry Jack's (T 11, 84, 228, 271 and 284). Although she did not refer to it in examination in chief or cross-examination, the second defendant, who was also employed by Hungry Jack's, gave evidence that she and Ms Davey were both dismissed for coming to work while affected by drugs (T 417), which the plaintiff later agreed with.
The plaintiff's evidence about her work at Hungry Jack's was as follows: "Q. When you left school, did you work? A. Yes. Q. Who did you work with? A. Hungry Jack's. Q. How long did you work there for? A. Roughly a year and a half. Q. Did you do any certificates while you were there? A. Yes, I partially completed, almost fully completed, my retail certificate in 2 or 3, I'm unsure what one it was now." (T 11.18-.29)
The plaintiff told the Court that after she left Hungry Jack's she worked at a café called "Fused Café" which was owned by her uncle and aunt: "Q. After Hungry Jack's restaurant, did you do some work? A. Yes. Q. With whom? A. With ‑ sorry, I just have to ‑ Hungry Jack's, I think it was Fused Café after that. I am a bit ‑ my memory's a bit ‑ with all of my work, yeah. Q. You say what café? A. Fused. No, sorry, yeah, it was Fused Café, yeah. Q. Is that a café that's owned by your uncle and aunt? A. Yes. Q. How long did you work there for? A. I worked there for approximately six months to a year. Q. What were you doing there? A. I was supervising the store, or running it, yeah, open and closing and looking after everything. Q. Were you working full time? A. Yes. Q. How many days a week? A. Sometimes seven days, between five to seven days, yeah, for family I was doing a lot. Q. After that what did you do? A. I started babysitting their children, yeah, and I was a babysitter and I had to look after the house, yeah. Q. Whose house? A. The ‑ from my previous employers at Fused Café. Q. And how long did you work there as a nanny, say? A. Probably about six months or more, yeah." (T 11.31-12.16)
The plaintiff said that after this employment she commenced work at "Lexie's on the Beach": "Q. Did you have employment then, after that? A. Yes, I did, yes. Q. With whom? A. I'm not sure of the order, 'cause I've had quite a few jobs, but I think it might have been either Lexie's on the Beach, maybe - yeah, I think so. I'm not sure - 100% sure. Q. What was that called? A. Lexie's on the Beach." (T 12.18-.27)
She described her duties as follows: "Q. What were you doing there? A. I was doing waitressing, barista, yeah, I ‑ pretty much all rounder, yeah, doing a lot of-- Q. Do you recall how long you worked there for? A. It was only a couple of months, 'cause the travel was too much. Q. After that? A. And after that I worked at Michel's Patisserie and then I also acquired a second job whilst I was working there at Breakaway Surf Co. Yeah. Q. So were you doing the two jobs at the same time? A. Yes. Q. So on what days did you work for Michel's Patisserie? A. It was a bit all sort of mixed in together, yeah, but I was always at work. Q. With the combination of those two jobs, how many days a week were you working? A. Seven days, yeah. Between six and seven days, yeah. Q. How long did you do those two jobs for? A. About six months, roughly, or more." (T 12.45-13.17)
It was after working for these two employers that she obtained a job with Futures Kebabs at Glendale: "Q. What were you doing there? A. I was opening and closing the store, I was pretty much running ‑ yeah. Q. How many days a week were you working? A. Seven days. Q. Do you recall what you were being paid there? A. Yes, I remember I was paid $10 an hour, yes. HER HONOUR: $10 an hour? MAXWELL: $10 an hour. Q. What sort of hours were you working there? A. I was working in between 60, 70 hours a week. Q. How long did you work there for? A. I worked there for about six months or more. Yeah. I do apologise about not being able to recall an exact-- Q. When you finished with Futures Kebabs, was that before the accident? A. Yes. Q. How long before the accident? A. It was only like roughly two weeks. Yeah. Q. Why did you finish there? A. I just finished there because, well, I'm going to be honest. They were of a group of - they were Muslim and they honestly - they treated me very badly. They paid the boys $15 an hour, paid the girls 10. That's very sexual, sexual ‑ like problems in the workplace. Like the boys would get treated better. The women would get treated worse. We had to do all the cleaning. The men didn't have to, so yeah, it was something that I, I didn't want to work at anymore. Q. Between that time and the accident, were you looking for employment? A. Yes, I was, yes. I had-- Q. What sort of-- A. --been handing out resumes all over the place, yeah. Q. What sort of employment were you looking for? A. I was looking for hospitality or clothing. I applied at a few shoe shops and yeah. I just always loved working, I wanted something." (T 13.41-14.34)
The plaintiff acknowledged she had never filed a tax return apart from the financial year ending 2016 (T 53.9). She had been paid in cash and she had not put this into her bank account: "Q. You recall giving Mr Maxwell some evidence about where you worked? A. Yes. Q. It appears that you were a little bit unsure about where you worked from time to time. A. No, I was sure of where I worked. I just was not sure of the timeframe. Q. When was the last time that you worked before this accident occurred in early August? A. It was only two weeks before it roughly, yeah. Q. Were you being paid wages? A. Yes. Q. Did you pay those wages into your bank account? A. No. Q. So we're really dependent upon your recollection, are we, as to when you last worked. Is there any record that you have of that? A. No, but I have - I could get - I've got people that saw me working in there. I worked. Q. Yes, but-- A. Why would I make that up? Q. Did you have any pay slips? A. No, why would I if I don't get pay slips provided? It doesn't go into my bank account. Q. Did you pay he wages from the kebab place into your bank account? A. No, I already said that. Q. Did you get any pay slips? A. No, I already said that too. Q. Did you put any tax returns in? A. No. Q. Have you ever put any tax returns in? A. No. Q. Why not? A. I don't even know how to. Q. I'm sorry? A. I don't know how - actually I did it this year. On my, on my Centrelink it come up on my app and I did it. Q. Is this the case, that ever since you've left school you haven't put a tax return in? A. No, I just said to you that I've put one in recently. Q. Well, after the accident? A. Yes. Q. That's for Centrelink? A. Yes. Q. So in all of the time that you worked for various employers, you were receiving wages? A. Yes. Q. Did you receive Centrelink benefits? A. No. Q. You didn't receive Centrelink benefits before your accident? A. I don't think so, no. There might have been a time where I applied for it when I was younger, but I don't think I ever got it. Q. You know that your solicitors have sent copies of your bank statements? A. Yeah. Q. Have you looked at those bank statements? A. Have I? Q. Yes. A. No. Q. In respect of your earnings when you were putting your money into the bank, was it the case that you would immediately withdraw it from the bank? A. What do you mean? Like I would take it straight out when I got paid. Q. If you got $300, you'd withdraw $300? A. Probably. Whatever I did I did. I was a kid." (T 52.20-54.3)
The evidence from the plaintiff and her mother (see below) as to the plaintiff's pre-accident school history, employment history and place of residence paints a clear picture of a rebellious teenager with discipline and schooling problems who struggled with family and employer figures to the extent of being "kicked out" of her home and sacked from employment.
However, the real difficulty for the plaintiff is her lack of frankness about these matters. There are many examples of teenagers with similar histories who have gone on to lead not merely successful but outstanding lives and, for this reason, courts determining quantum issues for young persons injured before they have started their careers always err on the side of generosity because the court is effectively trying "to assess the unassessable" (Mundy v GIO of New South Wales (Supreme Court of New South Wales, Spender AJ, 5 June 1995) at 3).
There are no wages or tax returns tendered and the plaintiff's uncle (who was her employer at Fused Café) was not called in her case. Mr Poulos QC asks me to draw a Jones v Dunkel inference, from the failure to call her uncle, who was employing her there. The plaintiff's mother's evidence was that this uncle, who had had drug problems himself, had offered to take on the plaintiff so that he could give her some guidance in terms of realising she was having difficulties because of drugs. He appears to have had no impact in that the plaintiff did not suggest he had played any role of significance in her life, although he could have been of assistance to her.
While I do not propose to draw a Jones v Dunkel inference from the absence of this gentleman, the absence of any wage records or similar evidence from a business run by a close family member must cast doubt on the plaintiff's assertions that she held some form of paid employment there.
The circumstances in which the plaintiff was sacked for coming to work at Hungry Jack's while on drugs, cannot produce any tax returns or even pay slips, does not produce to the court the CV her mother said she was handing out to prospective employers and has been out of work for long periods are indicative that the plaintiff has a poor work history of sporadic employment for short periods only.
In addition, the plaintiff's pre-accident medical history demonstrates other issues which Mr Poulos QC claims should be taken into account when considering future economic loss.

[42]

The plaintiff's pre-accident medical history

The plaintiff was born with a hearing defect which must have severely impacted upon her ability to socialise. She was the victim of bullying at the age of 13 to 14 and required treatment at John Hunter Children's Hospital for approximately two weeks as she set out in her examination in chief: "Q. Did you also have some problems with bullying at school around the age of 13 or 14? A. Yes. When I started high school, yes. Q. As a consequence of that, did you go to John Hunter Children's Hospital? A. Yes. Q. Were you in there for a couple of weeks? A. Yes, roughly two weeks. Q. Do you recall-- HER HONOUR Q. How old were you? A. I'm 21. Q. No, then. A. Then, I was 14 or 15. I'm not 100%-- Q. Sorry, I just wanted to get a handle on that. A. Sorry. MAXWELL Q. Do you recall what your problem was when you went into the hospital at that time? A. I do, yes. It was all the moving to a new high school in an area where I didn't know anyone and everyone was a bit sort of not nice to me and no one invited me to a group. I was going through menstruation as you do around that time, and I think it was just the build up of emotions as a teenager, really. Q. You were in there for two weeks. Did you get some benefit from that? A. I did, yes. Q. When you came out, did you then have some counselling outside? A. Yes, I did, yes. Q. Did you get some benefit from that? A. Yes. Q. Did you feel that you improved a little bit? A. Yes. Q. How was your mental state before this accident? A. It was good, yeah. I was happy." (T 14.47-15.52)
The Department of Community Services became involved and the plaintiff was considered to be at risk of harm during this period. In the course of her treatment, a mental health referral form (Exhibit 12, page 409) referred to changes as the plaintiff entered puberty which included opposition/defiance and risk taking "including use of drugs/alcohol and sexual promiscuity". The medical reports refer to conflict between the plaintiff and her father in relation to these issues. The plaintiff was diagnosed with an adjustment disorder (Exhibit 12, page 345). The plaintiff's mother, an orthopaedic nurse, had professional as well as personal skills to call upon in relation to the plaintiff. Nevertheless, the plaintiff by her conduct made her continued presence in the home impossible. Some of the plaintiff's behavioural problems were: 1. She went missing several times (T 643). The plaintiff's mother agreed that after 2011 there were long periods of time where the only way she could contact the plaintiff was by telephone (T 657). 2. She mixed with people in the drug scene, and on at least one occasion was observed to be affected by drugs (T 643, 644). 3. Mrs Bevan was obliged to call the police on several occasions. She agreed that there had been a sufficient number of incidents involving the police prior to the accident that it was hard to recall actual details (T 654). She also agreed that she may have informed the police in July 2011 that the plaintiff had been using drugs and alcohol for the past 18 months, although she said she could not remember this (T 655). She acknowledged, however, that she did tell police that the antidepressants her daughter was taking would not be effective unless her daughter gave up the use of illicit drugs (T 656). 4. She threatened to kill herself, on one occasion threatening to do so with a kitchen knife (T 656). 5. There were occasions of physical violence, such as the time that the plaintiff kicked the front door of the family home, causing damage to it (T 664). 6. She argued with her siblings and there were difficulties.
As noted above, the plaintiff had significant pre-existing psychiatric conditions and was diagnosed with adjustment disorder, as well as being admitted to a psychiatric hospital for two weeks in 2009. These problems no doubt contributed to her poor work history and general health state prior to the accident.
The interaction between the plaintiff's pre-accident adjustment disorder and the psychological injury and its consequence is the subject of expert opinion (Dr Teoh and Dr Lewin). Of the two reports, I consider that Dr Teoh's should be preferred, for the reasons outlined by Mr Poulos QC in his written submissions.
The plaintiff's back injury is, however, not only the most significant, but wholly attributable to the accident.

[43]

The plaintiff's orthopaedic injuries

The plaintiff's treating neurosurgeon, Dr Hansen, has provided a series of reports set out in Exhibit A, Exhibit G and Exhibit 13. Both sides have tendered medico-legal reports as well.
Mr Poulos QC asks me to prefer the reports of Dr Hansen not only because he is the plaintiff's treating neurosurgeon, but also because, unlike the opinions of Drs Mellick, Davis and Stenning, he has seen the plaintiff over a long period time and at unguarded moments. Given my findings concerning the plaintiff's credit, as well as the lack of frankness she demonstrates in her presentation to those doctors, I agree with this submission.
I set out the relevant extracts from Dr Hansen's reports.
On 11 August 2013 Dr Hansen provided a report to a Dr Rees stating the following (Exhibit G, pp 8-9): "FINDING & OPERATIVE DETAILS (Including drains, catheters, prostheses, etc): Pre-Operative Note: This 18 year old girl was involved in a car accident and sustained a 3 x column Chance fracture with no neurological deficit. Preoperatively, her TLICS score was 7 and therefore a decision was made for her to be operatively managed. She was consented for the risks of the operation, including persistent pain, new neurological deficit and death under anaesthetic. Operative Note: The patient was placed under general anaesthetic and an endotracheal tube inserted. She was positioned prone on a Jackson table and pressure care was attended to. The patient was prepped and draped with I.I. draped in. An AP shot was used to determine the lateral border of the pedicle and the skin and fascial incisions were made just lateral to this. Pedicle screws were placed as follows. A Jamshidi was used to palpate the lateral border of the facet at the junction of the TP and then under AP I.I. Guidance, the lateral wall of the pedicle was entered. This was then hammered in by 2 cm and then a lateral shot was used to confirm the appropriate craniocaudal entry point into the pedicle. A guidewire was then placed through the Jamshidi and then over this, pedicle screws were placed. 4.5 x 45 screws were used everywhere except on the left at T12. Lordotic rods were then straightened out slightly. These were 90mm in length and they were placed subfascially. The top screw was then tightened and then used to compress. Under I.I. Guidance, we could see that the anterior column of the fractured L1 appeared to open up slightly and we were therefore happy that we had adequately distracted and restored some height to the vertebral body. The screws were then locked off. Final I.I. shots were then taken and then a layered closure of all four wounds was performed. Post-Operative Orders: 1. RPAO. 2. Spinal observations half hourly for four hours. 3. No position restriction."
On 9 October 2013, Dr Hansen wrote to NRMA CTP Sydney as follows (Exhibit G, p 18): "Miss Chloe Bevan was urgently operated on by me at John Hunter Hospital on 11/8/13 following car accident - see attached operation report. Invoice relevant to this operation has already been forwarded to you for processing. As you are now aware the abovenamed underwent emergency re-surgery relevant to her spinal fracture at John Hunter Hospital on 6th October 2013 due to instrument failure. On this occasion Chloe underwent T11-L3 fusion and osteotomy. Invoice relevant to this surgery will be forwarded in due course. Subsequently, Ms Bevan required further revision of screws at L3 level on 9/10/13 at Newcastle Private Hospital. The item number relevant to that surgery (also undertaken as an emergency procedure), is MQ365 (47699) - $3995.00 (as advised in email to you on 9/10/13). Thank you for your help in this matter."
On 28 October 2013, Dr Hansen wrote to a Dr Hayes as follows (Exhibit G, p 23): "I reviewed Chloe in my rooms today. She is having some problems with her pain and she is currently walking with a walking frame. Her strength and sensation is normal. She is complaining of some left hip pain as well. Her wound has well healed. She certainly looks straighter than what she did. She doesn't seem to be relying on the walking frame too much, it's more a crutch. I would like to see her in 6 weeks with another x-ray to see how she is getting along. Thank you once again for her referral."
On 2 December 2013, Dr Hansen wrote to Senior Constable Freeman of the Newcastle City Local Area Command as follows (Exhibit G, pp 27-28): "1. This statement if made following my review of the medical record with regard to Chloe Louise Bevan DOB 6/12/1994. 2. My name is Dr Mitchell Adrian Hansen. I am 41 years of age. I am a qualified Neurosurgeon. I have been a Doctor since 2003. I have extensive training within neurosurgery and am qualified as FRACS in neurosurgery. 3. Chloe Bevan was admitted to John Hunter Hospital on the 9th of August 2013 at 4.19am. This was following an alleged motor vehicle accident where she was the rear seat passenger. The Triage Nurse notes state that the patient was brought in by ambulance after the car hit a telegraph pole at approximately 60KPH. The patient self-extricated and walked at the scene. She was alert and orientated at the time but complained of lumbar and hip pain. She presented to the Emergency Department in an ambulance in a pelvic bind and hard neck collar. 3. [sic] The medical imaging that was undertaken demonstrated fracture through the L1 vertebral body with extension into the pedicles and lamina bilaterally. There was disruption of the ligamentum flavum, intraspinous and supraspinuous ligaments. This would be classed as a Chance-type injury and as such is an unstable injury. 4. She was initially treated with percutaneous fixation from T12 to L2. Her surgery was uneventful and she mobilised after the surgery. X-ray demonstrated good position of the instrumentation. She was discharged from the hospital on the 13th August 2013. 5. I reviewed her in my rooms on the 30th September 2013 and further imaging demonstrated that her kyphosis had increased in size and that she had failure of the construct. This was following a fall at home. 6. She subsequently needed to have revision surgery and underwent a T11 to L3 open fusion and osteotomy on 6th October 2013 to reduce her kyphosis. 7. On the 9th October 2013 she unfortunately had to have revision of one screw due to it's [sic] suboptimal placement. She remained as an inpatient and was discharged home into the care of her mother. 8. She was reviewed on 28th October 2013 with an x-ray and was mobilising with a walking frame as she felt unsteady at times. I thought that this would settle and another x-ray was ordered. She was meant to be reviewed on the 2nd of December 2013 but unfortunately did not appear for this appointment. 9. I am happy to answer any questions as required."
On 6 January 2014 Dr Hansen again wrote to Dr Hayes (Exhibit G, p 31): "I reviewed Chloe in my rooms today. She is still having some pain issues. Her wound has healed well. Her x-ray looks good. I would like to review her in 6 months with a new x-ray. Thank you once again for her referral."
On 21 January 2014 Ms Jane Stubbe, physiotherapist, at Warners Bay Private Hospital wrote to Dr Hansen as follows (Exhibit G, p 32): "Chloe Bevan was attending a 5 week Day Rehabilitation Program at Warners Bay Rehabilitation Unit post posterior spinal fusion (T12-L2 to T11-L3) - screw fixation. Relevant PMHx MVA August '13, mental health issues. Admission details: Mobility Independently unaided ~ 50m Stairs ↑/↓ (12) stairs, "step-through" gait, 1 rail 10m walk test: 6.72 sec TUG test 7.90 sec Chloe was inconsistent with attending her day program therapy sessions. Exercise program during admission: - Advice and education for general mobility, "do's and don't's" post back surgery - General strengthening exercises - Core strengthening exercises - Cardiovascular endurance exercises - Endurance exercises - Hydrotherapy - ROM exercises - Wii games Chloe was discharged after 3 weeks due to inconsistency in attendance."
On 12 February 2015 the plaintiff's solicitors, Gerard Malouf and Partners, wrote to Dr Hansen as follows (Exhibit G, pp 45-46): "We advise we act on behalf of the above named in a claim for personal injuries arising from a Motor Vehicle Accident claim, which occurred on the 9/08/2013. We advise we have been instructed by our client that they [sic] have been receiving treatment from you in relation to their [sic] injuries and disabilities suffered as a result of the aforementioned motor vehicle accident. We enclose our client's signed authority to enable you to supply this information. We kindly request you please prepare a Report incorporating the following:- 1. Date of consultation/s. 2. History given of the accident by the Claimant. 3. The Claimant's condition on examination. 4. The Claimant's work and medical history as given. 5. Details of any x-rays or other diagnostic test results viewed and your interpretation of same. 6. Your opinion as to whether the condition on examination was consistent with the history of the accident as given by the Claimant. 7. Your assessment of the Claimant's condition. 8. The nature and extent of any present and/or continuing disabilities. 9. Your opinion as to whether the injuries and restrictions will affect her ability to return to full-time work. 10. Your opinion as to whether she will only be suitable for light duties and/or part-time work. 11. As a result of the permanent disabilities and any acceleration to the degenerative process, will the claimant be able to work to age 65, if not, at what age will the claimant be able to work up to. 12. In terms of any future treatment or rehabilitation that you may believe is necessary we welcome your opinion as to the duration of this treatment, the nature of the treatment and if possible, an approximate costing. 13. Any other relevant observations and/or comments. 14. What reasonable medical and related treatment do you consider will be required and kindly provide us with full costing of same. The District Court Rules governing the retainer of expert witnesses were amended on the 1st September 2000. From that day, all expert witnesses:- - must be provided with an expert witness code of conduct - must in their Report contain an acknowledgement by the expert that he or she has read the code and agrees to be bound by it. We thank you for your assistance in this matter and look forward to receipt of your Report shortly. If you require prepayment of your medical report fee could you kindly email your tax invoice to wendy@gmp.net.au."
Dr Hansen provided a report to the plaintiff's solicitors on 23 March 2015, the contents of the report are as follows (Exhibit G, pp 48-49): "In response to your report request dated 12/2/15 and answer to your specific questions: Q1. I have seen Chloe several times since she underwent a T12 to L2 percutaneous fusion in August of 2013. This was initially done on the 11th August. She needed a follow up procedure on the 6th October 2013 and then another on the 9th October 2013. She's not had any surgical intervention since. I have seen her at both John Hunter Hospital and in my private rooms on a number of occasions. Q2. Ms Bevan was brought in by ambulance on the 9th August 2013. It was alleged she was the back-seat passenger in a motor vehicle accident when it hit a telegraph pole at about 60 kilometres per hour. The patient self-extracted from the car. Q3. At the time on examination her airways, breathing and circulation were fine. She had no obvious neurological deficit. She was complaining of back pain. She had hip pain and she was in a pelvic binder as well when she arrived at John Hunter Hospital. Q4(a) Ms Bevan's work history was not given. 4(b) Ms Bevan's medical past history was that she had illicit methamphetamine use but no IV drug use. She was a smoker of tobacco and cannabis. She was seen by Drug and Alcohol Counsellor while she was an inpatient in the hospital but she refused to see the psychiatric service. She had several reviews and 'Code Blacks' while she was an inpatient for behavioural issues and aggressive behaviour and language. Q5. Her imaging demonstrated an L1 chance fracture with wedging and loss of the vertebral body height. This was seen as an unstable injury and needed fixation. Q6. The condition on examination when she arrived was consistent with a history of an accident as given by Ms Bevan. Q7. My assessment of her condition at that time was that she had an unstable injury and that required surgical fixation. Q8. Ms Bevan was complaining of significant back pain continuing following the accident. Q9. Similar injuries have been treated in other patients and they have been able to return to full-time work. I don't think there's any surgical issue with her being able to return to full-time work. Q10. Ms Bevan's spine has been fixed and I think she should be able to return to work with no significant restrictions. Q11. There is a possibility for an acceleration of her degenerative process but I would think that it is difficult to know how late she would be able to work until. Q12. It's difficult to have a reasonable opinion with regards to this. Q13. Not applicable. Q14. Ms Bevan will probably require further review in the future. This would include medical and x-ray review."
The John Hunter Hospital prepared a Discharge Referral on 20 October 2016 for the plaintiff's admission dated 9 October 2016. Under the heading "History of Presenting Complaint" are the following entries (Exhibit G, p 65): "- Presented with 3 days acute exacerbation of chronic left sided back pain, not controlled by usual significant analgesia - Needed assistance with ADL's secondary to pain, and felt that her leg had become weak - No precipitating traumatic event - CT thoracic spine showed fractured L2 pedicle screw and L3 screw lucency"
On 14 October 2018, Dr Hall prepared a report for Dr Mitchell to Dr Hayes in the following terms (Exhibit G, pp 54-55): "FINDINGS & OPERATIVE DETAILS: The surgery proceeded as an emergency case with the patient's consent. She was placed under general anaesthesia. An indwelling catheter was inserted. Antibiotics were administered and a timeout performed. She was positioned prone on the Jackson table and the previous incision line re-opened. Via a Willse approach, the screw caps of the old hardware were exposed and the rods removed. The pre-existing NuVasive Armada pedicle screws were removed bilaterally. Bilateral L2 Precept screws were removed including the fractured left L2 screw. De Puy Verse pedicle screws were placed bilaterally at L2 using 5 x 45mm screws. Confidence cement was inserted under fluoroscopy with a good result. With manual pressure she was found to correct her alignment. 12cm straight rods were placed, the construct compressed and screw caps torqued off. The wound was then closed in layers with PDS and Monocryl. The patient was then turned to the lateral position with left side up. An 8cm incision was made along the tenth rib with a similar length of this rib resected. The pleura was mobilised anteriorly and the diaphragm mobilised inferiorly. X-ray confirmed the appropriate level at which stage a vertebreotomy was performed in a piecemeal fashion. The end plates of T12 and L2 were prepared and the expandable cage inserted and sized appropriately. Bone graft was packed around the cage with a strut from the tenth rib inserted. Durepair was laid over the construct and the diaphragm re-approximated. There was a small defect in the pleura noted. A size 24 intercostal catheter was tunnelled between the eleventh and twelfth ribs posteriorly and placed into the pleural cavity. The wound was closed in lawyers with PDS and Monocryl. A intercostal nerve block was performed prior to closure."
Dr Hansen's opinions that the plaintiff's spine "has been fixed", and that she should be able to return to work with no significant restrictions, are submitted by the plaintiff (plaintiff's written submissions on quantum, paragraph 28ff) as being unreliable, given that the procedure undertaken by Dr Hansen ultimately failed. A similar challenge is made to his answer to question 11 of the questions set out above.
Dr Hansen's conclusion that the plaintiff's operations "would cause her to have ongoing back stiffness but no significant disability" is also challenged on the basis that it appears to be unchanged since the first operation notwithstanding the subsequent operations.
I do not accept these challenges to his opinions. The fact that the operation failed and had to be done again does not, without more, entitle me to draw the conclusion that his previous opinions were wrong, or that the repair operation has further caused the plaintiff to deteriorate, or that the operation may fail again. These are matters requiring expert evidence.

[44]

Other medical reports

Dr John F Davis, who assessed the plaintiff on 13 May 2015, reviewed her after the final operation and expressed the view (plaintiff's submissions on quantum, paragraph 52): "Examination: "There was a right-sided antalgic gait." "There was no pelvic shift or tilt and weight bearing was symmetrically distributed at rest." "The scar was quite obvious, mainly hypo-pigmented although there were areas of hyper-pigmentation." … "There was a left lateral oblique scar measuring 7 cm, consistent with bone harvesting, and a further irregular scar approximately 1.5 cm in diameter which was quite hyper-pigmented also. The bone harvesting scar demonstrated depression at the proximal end." "There was increased kyphosis in the lower thoracic spine and generalised tenderness from her lower thoracic region to her mid/lower lumbar region." "There was generally marked restriction of active range of movement, particularly in left side flexion and extension." "She was able to squat fully." "There was 2 cm of wasting of both the right calf and thigh when equidistant proximal and distal to the knee.""
Dr Davis considers that the plaintiff's prognosis is for "continuing variable pain, impairment and disability" and that the likelihood of further operative intervention "cannot be entirely ruled out at this time". He considers that she is able to perform work, but not of "an arduous or forceful nature" or involving repetitive lifting of more than 5kgs. He expresses a view that it is "unlikely that she will ever return to any formalised employment in the future".
Dr Stening's report of 19 November 2017, which postdates the latest operation, describes the plaintiff as "currently unfit for work", adding that she would be unable to stand or sit in one position for more than 5 to 10 minutes or to lift or bend. He notes the risk of adjacent segment disease at the level above and below the fusion, although considering that she should be able to return to some form of work in the future. He notes that this disability "might also impact on her domestic and household duties".
Dr Mellick considers there is no prospect of her resuming her pre-accident occupation by reason of her mood disorder combined with chronic pain, and notes that she requires "considerable assistance from family members".
Dr Harvey-Sutton's report (11 October 2017) expresses views similar to Dr Hansen, as is noted in the defendants' submissions on quantum (paragraphs 53-55). Neither of these doctors were required for cross-examination.
Only Dr Hansen has the continuity of seeing the plaintiff as her treating doctor over this long period. The expression of opinion by doctors who have seen the plaintiff only once or twice, in circumstances where the plaintiff has not always been frank, do not have the same firm basis as reports by a doctor who has seen her in unguarded moments. I prefer the evidence of Dr Hansen.

[47]

Evidence as to past and future home care

The plaintiff's mother, grandmother, former partner and current partner were called in relation to all aspects of the plaintiff's damages claim. Their evidence of her degree of impairment in relation to damages generally is impacted by their unsatisfactory evidence as to the extent of her drug problems. Without being consciously dishonest, each of these witnesses, in their own particular way, sought to put the plaintiff's case in the best light. That is not an uncommon reaction from family members but, in the present case, the gap between the objective evidence and their observations was considerable. However, their evidence in relation to past and future care issues faced a more formidable hurdle, namely the uncertainty of when and with whom the plaintiff was living and the inconsistent accounts of just what difficulties the plaintiff was facing in her daily home activities.
Although the plaintiff, when discharged from John Hunter Hospital on 13 August 2013, "moved in with her mother", to quote the chronology of her post accident accommodation as provided by Mr Maxwell (see T 35 line 17), she did not remain there for more than a month. The family problems which had existed before the accident in terms of the plaintiff's bad relationship with her father and siblings and, at times, her mother, were such that although her mother was a trained orthopaedic nurse, the plaintiff was unable to remain in the family home without problems arising.
As a result, the precise whereabouts of the plaintiff during this period are not always easy to determine. In addition, some of the persons she was living with either did not give evidence at all (as is the case with "Jess", with whom she appears to have lived between June and December 2014), or such evidence was not given when the witness was called (as is the case with Ms Davey, with whom she lived prior to living with "Jess" (T 39)). It is necessary to reconstruct the pattern of where the plaintiff was living in order to determine the nature and extent of her past home care.
It is not in dispute that the plaintiff remained living at home with her mother between the date of her discharge from John Hunter Hospital of 13 August 2013 and her readmission on 4 October 2013. According to the plaintiff's evidence (T 37), after her discharge, she went to live with Ms Davey for "a couple of months or something, a month" (T 38). She appears to have been in hospital for less than the period of time she stated in her evidence, which would mean that on 11 October 2013 she moved in to live with Ms Davey.
Although she refers to going to her grandmother's home (T 38 line 24), the evidence about the plaintiff's care needs while living with her grandmother is scant.
The plaintiff said she went to live in June 2014 with "Jess", a person whose surname was never provided (T 39) but that her mother and grandmother were coming to her home to provide home assistance.
The plaintiff said that she discovered she was pregnant in November 2014, although Mr Boatswain, the father, says that he discovered she was pregnant in December 2014 (T 168 lines 30-44). It was at this time that he and the plaintiff moved in to Mr Boatswain's mother's home (T 168 line 47). As is set out in more detail below, Mr Boatswain said he was doing a great deal of work to assist the plaintiff, including massaging her for "probably four hours a day to five hours a day" (T 170), "running her baths, either going to get her medication, going down to pharmacies to try and get ointment or Nurofen rub, Calm Rub, a lot of different medications to try and numb the pain off" (T 170). There is, however, no evidence of other persons performing these time consuming tasks. Nor was there any evidence given by Mr Boatswain's parents as to meal preparation, cleaning or the like.
The child, Ciara, was born in July 2015. Mr Boatswain said that two months before the child was born they moved into a house in Edgeworth and he was constantly looking after not only the plaintiff but also the home. This continued after the child was born (T 171 lines 20-40). This included vacuuming every single day, wiping down all the benches and doing the washing (T 172 line 48). This continued until January 2016 when the plaintiff and Mr Boatswain separated and returned to his mother's home for approximately one month. He returned to live in the Edgeworth apartment in February 2016 in order to care for the child Ciara. He did not, however, resume his relation with the plaintiff: "Q. So were you, prior to January this year, living with Chloe in a de facto relationship at Main Road, Edgeworth? A. Yes, on and off. Q. What happened in January? A. We decided to - actually, so I moved out up to my mum's and we wouldn't be together any more. Q. How long did you stay at your mother's place for? A. I stayed at my mum's for a month and a half. Q. What were the circumstances in which you moved back to Main Road, Edgeworth? A. That I basically cared for my daughter, that's the whole reason why I'm there. Q. When did that happen, when did that arrangement come about with Chloe? A. Just when I got back from my mum's, so in - just before, just before March, I'm pretty sure, February, maybe. Q. Did you have some conversation? A. Yeah. Q. I don't want to hear what the conversation. A. Yes. Q. You had a conversation with Chloe did you? A. Yeah, when I got back down. Q. And what was the arrangement to go back in? A. That I would stay in the spare room and care for my daughter. So keep less stress out on her. Q. What was the arrangement in relation to the relationship with Chloe? A. She basically goes her way and I have nothing to do in her life and she has nothing to do in my life." (T 166-167)
Mr Boatswain agreed in cross-examination that his role during this period was essentially to look after the child, although he did massage the plaintiff four to five times in 2016 (T 175 line 25). His evidence was that the plaintiff did as much as she could to look after the child including picking her up, changing nappies, taking her in the car and travelling to the plaintiff's mother's house in Morisset which was 30 minute drive in terms of distance: "Q. What does she do for the child? A. She looks after her as much as she can, so she picks her up, she gives her a bottle whenever she can, as much as she can. Q. She changes her nappy when you're not there? A. Yeah. Q. Have you got a nappy changing table? A. Yes. Q. When you're not there, she transports Ciara in the car? A. Pardon? Q. Does she transport Ciara in the car? A. Yes. Q. When you're not there, she puts her into the child seat in the back? A. Yes. Q. You said she goes to her mother's place. That's at Cameron Park is it? A. No, it's up at Morisett, Cooranbong. Q. At Morisett? A. Morisett, yeah. Q. That's a far way away isn't it? A. Yeah, it's a 30 minute trip away." (T 176)
Mr Boatswain was shown surveillance footage (Exhibit 14) and maintains that he could observe the plaintiff walking with a limp (T 190-193). He conceded, however, that she could walk quite long distances, such as 400 metres, while pushing the pram: "Q. Does she have a disabled sticker? A. Yes. But people with no disabled stickers always park in there. POULOS Q. But Chloe can walk quite long distances, can't she? A. Yes. Q. She can walk 400 metres down to the junction at Minmi Road and Main Road? A. Pardon? Q. She can walk the 400 metres or so down to the corner of Minmi and Main Road? A. Yes, yep. Q. And that's the way she would walk, as we see her in the video? A. Yes and no. Q. She pushes the pram as well? A. On the days that I'm not there. Q. You know that a disabled sticker is supposed to only be given to people that can't walk 100 metres without difficulty, don't you? A. And that's Chloe, she's in difficult pain every single second." (T 193)
Mr Boatswain acknowledged that there was a real possibility that the plaintiff would complain of pain in order to entice him to perform more household duties than he normally might (T 195) and agreed that the arrangements suited the plaintiff as it meant that he was available to look after the child when required (T 195).
Mr Boatswain no longer performs these tasks. They are now performed by Corey Hoover, an aggressive young man who took the side of the plaintiff very strongly when giving evidence, and admitted as much: "Q. You're firmly on the side of Chloe Bevan when you come to give evidence in this court case, aren't you? A. Yes. Q. And you have behaved yourself in a way that is hostile towards persons who you anticipate might be harmful to her case? A. No, not hostile. Q. You deny that do you? And you've been outside the Court for days striding up and down and huffing and puffing outside haven't you? A. No. Q. Looking at people with a little supercilious smile and trying to intimidate them haven't you? A. Not intimidate sir. Q. Well you are the kind of person who would cheerfully punch somebody in the face, in the presence of police aren't you? A. I didn't punch him. Q. Yes, well you say that. You pleaded guilty to assault, didn't you? A. I pleaded guilty to pushing him in the face. Q. You're on a 12 months good behaviour bond, aren't you? A. Yes, yes." (T 816)
Mr Hoover's evidence was that he started going out with the plaintiff in about April 2017, but that he initially did not stay over in her home at Cardiff (T 806 line 12). At this time, the second defendant was living in the premises and Mr Hoover acknowledged that he saw the second defendant not only performing housework but helping with Ciara (T 807 line 17). He also observed them using drugs every two to three days and participating in such activities with them: "Q. Who was having marijuana? A. Kurt, Chloe, and myself. Q. How regular was that in that month? A. Every second or third day. Q. Did the marijuana taking continue? A. Not after that month." (T 807)
For the reasons set out more fully in the sections of this judgment concerning the credit of the plaintiff and Mr Hoover, I do not accept this evidence.
After the second defendant moved out of the Cardiff house, Mr Hoover spent more time at the plaintiff's home (T 812 line 16). It was during this time that he said he observed the plaintiff's mother or grandmother attending the property two to three times a week. He said he observed the plaintiff's grandmother doing the dishes and cleaning the floors, while the plaintiff's mother would perform laundry tasks. The plaintiff's grandmother would take the laundry back to her house and wash it in her own washing machine on occasion (T 812). At that time, Mr Hoover said, he was carrying out all outdoor activities such as lawn mowing and also doing the dishes, cleaning the floor and carrying out laundry tasks. It was unclear how he shared these duties with the plaintiff's mother and grandmother without overlap.
Mr Hoover maintains that he had performed these duties, in much the same way that a woman performing household duties normally would, from that time up until the present: "Q. Were you doing anything in that time? A. Yeah, I'd do the lawns, dishes, the floors, laundry, clean the bathroom, clean all the rooms, basically, like, everything around the house that a female normally does. Q. From that time, that is, the time Kurt left up to the present time, has there been any change, or have you maintained a-- A. No, I maintain that. That's why, like ‑ I work full time, but, like, I ‑ before this full time job I was labouring for ten hours a day six days a week and I'd come home basically every afternoon and I'd have my routine." (T 812)
His daily routine involves making sure when he comes home from work that Ciara has some food for dinner, cleaning the floor, benches and dishes and carrying out the laundry and mowing the lawn once a fortnight: "Q. What was your routine? A. Come home, make sure Ciara's got food, like, for dinner, and then I'd start getting into cleaning the floors, sorry, benches first, floors, and dishes, and then basically any laundry that was to come off the line for that day, and then I'd put that on the lounge and put ‑ hang the clothes out for the next day to dry. Q. You mentioned mowing lawns. Are you still doing that? A. Yeah. Q. How often? A. Once a fortnight." (T 812-813)
The plaintiff's domestic activities were described by him as performing minor tasks such as putting dishes in the sink, wiping the benches, helping to tidy rooms and telling Mr Hoover where to put all the clothes so that he does not mix them up (T 813). She also performs the handwashing of Ciara's bottles.
While Mr Hoover gave descriptions of the plaintiff rubbing her neck, complaining of being in pain and having sleepless nights, he acknowledged that he had seen her drive a car and to take Ciara out shopping, as she is shown doing in the surveillance footage, although he maintained that he carried all the groceries and that she did not even push the trolley (T 813 lines 46-48).
While Mr Hoover acknowledged he was "firmly on the side of Chloe Bevan" (T 816 line 28), he denied behaving in a hostile way towards the second defendant. There was an encounter between the plaintiff, Mr Hoover and the second defendant caught on CCTV footage outside the court. The court should be cautious in drawing adverse inferences from events of this nature, and I do not propose to make anything of it. However, I am satisfied that Mr Hoover's advocacy of the plaintiff's cause resulted in him being less than frank with the court both concerning her ongoing drug use (and for that matter, his own), as well as, of more importance to this case, her level and ability to perform domestic activities. While I consider it irrelevant that he has some prior arrests in relation to drug use, assault and driving while having an illicit drug in his bloodstream (T 819 lines 4-30), his denial that the plaintiff still uses drug (T 840 line 9) and his claim that neither of them participate in this activity is contradicted by the evidence of the second defendant, whose evidence on this subject I prefer. In particular, I accept the second defendant's evidence concerning the smoking of drugs at the plaintiff's house after a hiking trip to Mount Watagans (T 835 line 40). The circumstances in which the plaintiff was able to go on this bushwalk are in marked contrast to her asserted inability to perform simple household tasks. Mr Hoover's impartiality to the plaintiff's cause including denying that with some imagination it would not be hard to work out a system whereby the plaintiff could undertake domestic activities: "Q. With a little bit of imagination it wouldn't be too hard to work out a system whereby she worked at waist level, would it? A. Well, not all things can be hanging on a clothes horse. Like, little things get hung on there, like socks and undies and bras and stuff, not like big shirts and that, cause it's not a big one." (T 833)

[49]

The plaintiff's mother

It would be hard to imagine a more capable or compassionate carer than a mother with orthopaedic nurse training, and it is an indication of the degree of the plaintiff's personal and psychiatric problems, not merely after the accident but also beforehand, that she was unable to remain in the home with obviously caring parents, or to remain with her mother for more than the weeks between her first and second operation following the accident.
Mrs Bevan's support of her daughter was absolute. She represented her daughter in the best possible light as having gainful employment at Michel's Patisserie at Glendale in 2011 and 2012 (T 584), stating that her daughter was doing two jobs at one time, and that following the cessation of this employment she worked five days a week. She described her daughter as working up to two weeks prior to the accident and Futures Kebabs, where she was working very long hours and being treated, by inference, unfairly by her employers. She described her daughter as sometimes working from 7:30am until 11:00pm: "Q. Are you telling the Court that your daughter at times worked from 7.30 - and 8 until 11 o'clock at night? A. She did. Q. Five days a week? A. Not five days, but on often occasions sometimes it was 6. She was working a lot of hours. Q. What sort of earnings was she getting? A. She was getting $10 cash in the hand, and she was getting very treated very poorly." (T 589)
She described her daughter as having to leave that job because her employers were "very sexist" (T 589) and as looking for employment and handing out resumes as well as seeking work in fast food shops (T 590).
As noted in the evidence set out above in relation to the plaintiff, this glowing description is in stark contrast with the plaintiff's absence of tax returns and dismissal from Hungry Jack's because she came to work affected by drugs. Mrs Bevan's evidence is clearly coloured by her love for her daughter.
The plaintiff is still in regular contact with her mother, although apparently only once a fortnight or once a week: "Q. How often does your mother come to your place? A. She doesn't come as often as she used to. Because my pain has been worsening over the past probably year she has had to come down and drive down to my place to come pick my daughter up and take her for a few nights when my pain has been too bad, so she doesn't really come over and visit too much. Maybe like once a fortnight or something, once a week; it changes from time to time." (T 233)
As is the case with the plaintiff's grandmother, a significant part of the assistance Mrs Bevan is providing amounts to care of the plaintiff's child. However, assistance with caring for the plaintiff's child is not a basis for a claim for homecare. Her evidence is of limited assistance only as to the plaintiff's homecare needs.

[50]

The tender of Ms Barbuto's reports

After the evidence was completed and in the course of submissions provided on 27 February 2018, the plaintiff sought to rely upon "the opinions of Ms Barbuto" (written submissions) which are set out in Exhibit K and also in Exhibit 13 as part of the accompanying material Dr Harvey-Sutton reviewed in preparing her report. Ms Barbuto's two reports were successively served by the defendants on the plaintiff, but the plaintiff never served them back.
The plaintiff relies upon s 14 Civil Procedure Act 2005 (NSW) as permitting the court to dispense with the requirements of r 31.28 Uniform Civil Procedure Rules 2005 (NSW). Mr Maxwell also submits that the document is admissible because it was part of accompanying material provided to Dr Harvey-Sutton (Exhibit 13) and the report was "served by the defendant [sic] and there can be considered [sic] to be no prejudice whatsoever to them".
The defendants object to the plaintiff's tender of both reports as neither had been "served back" as required by r 31.28 UCPR. As a result, the defendants not only lost the opportunity to cross-examine Ms Barbuto but to call evidence in reply, or explore these issues with the plaintiff. (To a degree, some of these concerns as expressed by the defendants are self-serving, in that the plaintiff was in fact cross-examined with some vigour concerning the first of the reports of Ms Barbuto, but there are real difficulties even with this cross-examination, because the report that the plaintiff principally wishes to tender is the second of those reports, prepared after the hearing was adjourned, and about which the plaintiff was not cross-examined).
The obligation of a party to serve back reports pursuant to r 31.28 UCPR is explained by the Court of Appeal in Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Ltd (2015) 326 ALR 556 at [162]-[165] as follows: "[162] The parties did not favour the Court with any information as to what directions were made in this matter. All that is known is that Cummins determined, as it was entitled to do, not to adduce expert evidence (except in respect of a matter not presently in issue). In the absence of knowing what directions if any, were given, the question becomes what Cummins' entitlement was, under the rules, to rely on the expert reports of the other parties when it had not "served" those reports back on those parties. There is then the further question whether the trial judge erred in rejecting the tender of the balance of Dr Grantham's report and the joint report. [163] Rule 31.28 of the UCPR, does not expressly provide that a receiving party, if it intends to rely on another party's report must "serve it back" on the other parties to the proceedings. However, the rules as a whole and r 31.29 of the UCPR in particular indicate that that is their intended operation. Rule 31.29 of the UCPR cannot operate sensibly unless the report has been served by the party intending to rely upon it. [164] Accordingly, Cummins was reliant pursuant to r 31.28(3) of the UCPR on the grant of leave to tender the individual expert reports upon which it sought to rely and was thus required to demonstrate that there were "exceptional circumstances" for the purposes of r 31.28(4)(a) of the UCPR. His Honour was not satisfied that it was "exceptional" for a party to abandon part of its case at trial or to decide, during the course of the trial, not to call certain evidence. His Honour considered that was what had happened in this case and the position Cummins found itself in was of its own making, having decided not to adduce expert evidence on the questions that remained in issue. [165] What constitutes exceptional circumstances for the purposes of the rule was considered by the Court in Yacoub at [66], as follows: "Another question of construction concerned 'exceptional circumstances' in rule 31.18(4). In San v Rumble (No 2) (2007) 48 MVR 492; [2007] NSWCA 259 at [59]-[69], I gave consideration to the expression 'exceptional circumstances' in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4). (a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very 326 ALR 556 at 588 rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198; [1999] 2 All ER 13 (at QB 208; All ER 20 ). (b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at WLR 1268; All ER 912-913). (c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]). (d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at WLR 1268; All ER 912-913). (e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).""
If notice had been given before or even during the proceedings, the defendants could have sought to arrange for cross-examination of Ms Barbuto. Instead, the plaintiff closed her case and attempted to tender the report of Ms Barbuto at the end of the hearing. Rule 31.28(4)(a) UCPR provides: "(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied: (a) that there are exceptional circumstances that warrant the granting of leave, or…"
What are "exceptional circumstances" permitting the tender of a report which has not been served back? This issue was considered by Bellew J in Capar v SPG Investments Pty Ltd t/a Lidcombe Power Centre (No 1) [2017] NSWSC 1371. Bellew J referred to both r 31.28 UCPR and s 14 Civil Procedure Act 2005 (NSW), as well as s 56 Civil Procedure Act 2005 (NSW).
Bellew J first noted a decision which appeared to demonstrate that "exceptional circumstances" could include the granting of leave, and stressed the importance of looking at the issue on a "case by case" basis as well as the forensic decisions made in the course of the trial. His Honour noted at [24]-[25]: "[24] I have already noted that in the course of submissions, I was taken to the decision of Stevenson J in Owners - Strata Plan 84741 v Nazero Constructions. That decision, it was submitted, provided support to the defendants' position in the present case. There were, however, some distinguishing features in that case which are not present here, not the least of which was that the parties seeking to rely on the report in question had in fact served it. [25] In my view there is merit in the proposition advanced by senior counsel for the plaintiff as to the making of forensic decisions in the course of a trial. It is not unusual for counsel, having regard to the way in which a case proceeds, to make a forensic decision that certain evidence is not to be relied upon. Such decisions are routinely made in the course of a trial, depending upon how the evidence emerges. Rule 31.28 is obviously there for a reason. It was clearly open to those representing the defendants to re-serve the report when it was served by the plaintiffs. As I have pointed out, they did not do so."
In the present case, where the decision was not made during the trial but after the plaintiff had closed her case and was in submissions, is an even stronger example. Forensic decisions are often made in the course of the trial, and that includes whether or not to rely upon certain evidence, but that does not apply where the trial evidence has concluded. Rule 31.28 is "there for a reason" as Bellew J points out (at [25]).
Nor is it the case that the presence of the report at the back of another report would constitute grounds for saying such a report is "in evidence" already.
Accordingly, I am satisfied that leave should not be granted to the plaintiff to rely upon the reports of Ms Barbuto.

[51]

Findings concerning past and future home care

The peripatetic changing of addresses by the plaintiff prior to these proceedings make any estimate of her past home care entitlements very difficult. She changed her address so often that I had to ask Mr Maxwell for a chronology. There is no evidence from "Jess" or Ms Davey (with both of whom she lived for some time), she has spent only a matter of weeks living with her mother, and her boyfriends and grandmother are witnesses upon whom I would place no reliance.
The plaintiff clearly required some form of nursing for a considerable period, but appears to have refused to live with the persons best able to care for her, such as her mother. Mr Stuart's and Ms Madden's evidence about the plaintiff's social activities over this period (such as all-night dancing a matter of weeks after serious surgery) suggest the plaintiff paid little heed to her health generally. The surveillance video does not suggest she is having difficulties of any significance, but I accept that there are tasks such as heavy housework, cleaning and related tasks which would cause her difficulty.
The medical evidence is of little assistance. For example, Dr Stening provided a report dated 29 October 2015 in which he set out the following: "13. Your opinion as to the ongoing effects of the Claimant's injuries on her ability to engage in pre-accident day-to-day and self-care activities. The claimant is able to engage in pre-accident self-care activities, but there are limitations in her other day-to-day activities which are outlined in the body of the report." (Exhibit A, p 109)
The onus of proof lies on the plaintiff, and I consider it has not been discharged in relation to past care. Very little of the evidence falls within the usual parameters of a person with injuries receiving assistance of a regular kind with relation to specific tasks. What evidence there is suggests the plaintiff, although complaining frequently of pain, lived her life without regard to it. It is impossible to give realistic estimates in the absence not only of such evidence but of reports from health care professionals upon whose objectivity reliance can be placed. As the plaintiff has failed to discharge the onus of proof, I would not make any allowance for past home care.
In relation to future care, the plaintiff faces problems of a different nature. It is unlikely that she will be able to live with her existing family members again, and the circumstances in which she has changed live-in partners and the circumstances in which she ended her friendship with the second defendant are evidence of a volatility in her relationships which is likely to continue. I do not accept Mr Poulos QC's submission that the plaintiff is likely to settle down and marry Mr Hoover, thereby requiring little or no paid help.
The plaintiff's significant pre-existing psychiatric issues and her confrontational manner mean that, as she gets older, in the absence of a regular partner, the only home care she will have will be paid home care. As she grows older, there will be problems in terms of heavier housework, home repairs, gardening and tasks involving bending and squatting such as cleaning kitchens and bathrooms. As a young woman in her twenties, she has no problems in having partners and friends to call on but, in twenty or so years' time, she is likely to be living on her own and requiring paid assistance of a significant kind.
Mr Poulos QC points out that the plaintiff gave no evidence of any intention to retain paid commercial care if she has no one who can help her (Miller v Galderisi [2009] NSWCA 353). That is certainly a problem, but should not be conclusive. As a young woman in her early twenties in a de facto relationship, the plaintiff is oblivious to the difficulties which will face her in the future as she ages.
The plaintiff should receive a buffer for this period, but it is difficult, on the limited evidence before me, to determine what that buffer should be. The amount sought by the plaintiff ($307,380.00) is excessive and unrealistic, but the assessment by the defendants of zero is equally so.
Doing the best I can with the limited evidence before me, if I were to award future care as a head of damage, I would allow a buffer of $50,000 for the performance of heavy household duties, gardening and maintenance at a commercial rate.

[52]

Past and future economic loss

The plaintiff frankly acknowledges the difficulties involved in any past claim for economic loss, putting this at $25,000. She claims future economic loss of $555,285.00.
The plaintiff relies upon a report from Steven Buddle, rehabilitation counsellor, (22 December 2014), who described the plaintiff's work history as follows: "Ms Bevan attended Lambton High School leaving school in Year 10 aged 15. She said she had difficulties at school and was often acting out and rebelled in light of her difficult family situation. She also explained that she was seriously assaulted at an ice-skating rink when she was 14 and this also affected her behaviour at school. She left school aged 15 in 2010. She explained that she has actually wanted to work and earn money when she was about eight or 10 years old. Her favourite subjects at school were science, marine biology and maths although she explained she did not learn very much at school. Ms Bevan said her employment ambitions while at school were to work as a forensic scientist or a marine biologist however, she cannot work as a marine biologist because she has issues with her inner ear and cannot dive. She said her numeracy and literacy skills at school were reasonable. She hoped to be able to complete her HSC and tertiary education later in life as a mature age student. Ms Bevan said she has worked since 12 years of age. Her first job as a 12 year old was working at the canteen at a go-kart track. She then worked at a cafe as a Waitress and then around the time she left school as a 15 year old she worked at Hungry Jacks for 1.5 years and started a retail certificate there but did not complete it. She then went to work in her uncle and aunty's cafe as a 16 year old. She explained that she actually ran the cafe while the aunty and uncle looked after their young children. She worked seven days a week and did all aspects of running the cafe. Her relatives then ran the cafe whilst she worked as a nanny looking after their two and three year old children from 5.30am to 8pm. She did this for about six months and ran the household doing all of the cooking and cleaning and looking after the two children. After this she returned to run the cafe for her relatives. Ms Bevan said that she has always been an energetic and fast learner, has done well in employment and has shown good initiative and has been respected by her past employers. Her relatives sold their cafe business. Ms Bevan went to work at Michel's Patisserie as a Barista and after that she worked as a Retail Assistant at Breakaway Surf Shop. The last job prior to the motor vehicle accident was working in a kebab shop in Newcastle (Futures Kebabs) seven days a week for approximately 70 hours per week. She would open and close the shop working from 6.30am to 5pm doing all aspects of running the shop mostly by herself. Activities included Barista, cooking, cleaning, serving, preparing, making food and pastry and opening and closing the shop. She was working in this capacity at the time of the motor vehicle accident seven days a week. Note she was paid only $10 cash per hour. If not for the accident Ms Bevan said she would have kept working in this capacity either for the same employer or with another employer in the retail or hospitality industry. She has always wanted to be financially independent. She is now worried about this and her capacity to be financially independent in the future and is worried she will never be able work in a full time capacity again because of her injury. She explained that if she goes for a walk to the shops for 30 minutes she will be out of action for-two days afterwards due to the significant exacerbation of her pain. As well as working very hard before the accident she was very social and enjoyed going to the beach, socialising with her friends and going shopping. This has stopped since the accident and she has tended to push people away and now her social circle revolves around her boyfriend and her boyfriend's family." (Exhibit A, p 157)
Mr Buddle further noted the following in relation to the plaintiff's pre-injury earnings: "PRE-INJURY EARNINGS Gross and net weekly wage inclusive of bonuses and other special allowances and overtime at the time of injury: The last job prior to the motor vehicle accident Ms Bevan was working in a kebab shop in Newcastle (Futures Kebabs) seven days a week for approximately 70 hours per week. Note she was paid only $10 cash per hour. I have based her pre-injury earning capacity on the average full time income for a Retail Sales Assistant, which is $870.00 per week Pre-injury earnings are assessed as $870.00 gross per week" (Exhibit A, p 157)
Two factors emerge from this description. The first is that the plaintiff has greatly exaggerated the nature and extent of her work history and the second is her unrealistic plans for a future career and employment.
Dr Stening provided the following information in his report of 29 October 2015 concerning the plaintiff's employment: "14. Noting that the Claimant is only 20 years of age, your opinion as to the ongoing effects of the Claimant's injuries on her ability to obtain, and maintain employment. The claimant will have difficulty obtaining and maintaining employment where physical activity is involved. She would have difficulty with prolonged standing or bending. She would not be able to lift more than 10 kg. She would be able to carry out desk duties consistent with her level of education and experience." (Exhibit A, p 109)
These reports, however, predate the plaintiff's further surgery, as does Dr Hansen's initial view (in March 2015: Exhibit A, p 370) that the plaintiff would be able to return to work with no significant restrictions. They also predate the plaintiff having a baby in July 2015.
The sum of $25,000 would reflect an appropriate amount for the plaintiff's past economic loss in these circumstances, as I note is submitted by the defendants (written submissions, paragraph 67).
I similarly accept the defendants' figure of $100,000 as a buffer for future economic loss. The sum claimed by the plaintiff amounts to an almost complete denial of any capacity for any kind of work in the future, quantified on the basis of average weekly earnings for New South Wales employees. However, applying the average wage of full time workers to a person such as the plaintiff may be inappropriate (Jones v Bradley [2003] NSWCA 81 at [194]) as would be an assumption that a person with such an employment record would be employed for the rest of her life. Such a finding was considered "fanciful" in Jones v Bradley (at [195], citing Yip v Zreika (2001) 35 MVR 305). Awards of this nature had been set aside on appeal: Goodsell v Murphy (2002) 36 MVR 408; Yates v Jones (1990) Aust Torts Reports 81-009.
The plaintiff's economic loss calculations are not capable of being sustained by the evidence. The plaintiff's past earning capacity, the best indicator of her future, shows that she would be likely to continue to take sporadic low-paying or cash jobs in the hospitality industry. This is largely because of her longstanding drug use, although her pre-accident personality and psychiatric problems play a role. As to these contributing causes, I note the observations of Ms Defina (Exhibit 13, p. 54) as to the interrelationship between drug use and employment. These factors have long been recognised as relevant to future economic loss, in Harrison v Melhem (2008) 72 NSWLR 380, the trial judge considered that the plaintiff's earning capacity in circumstances where there was a 15 year history of prior drug use meant that the earning capacity component of damages should be reduced by 50% (see also Ghunaim v Bart [2004] NSWCA 28).
Courts should exercise greater than usual caution in coming to such a conclusion where a plaintiff is so young that he or she is only on the threshold of a lifetime of work. I have taken into account the plaintiff's very young age and the possibility that, with maturity, she may cease to have drug use or drug-related problems.
As is the case with past economic loss, the buffer of $100,000 for future economic loss should be inclusive of superannuation entitlements (although this is somewhat fanciful in relation to past economic loss, as the plaintiff did not have any superannuation).

Bevan v Coolahan

At a glance

Court

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Judgment (54 paragraphs)

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Legislation Cited (7)

Cases Cited (52)

Cited By (1)